FEDERAL COURT OF AUSTRALIA

DZACV v Minister for Immigration and Citizenship [2012] FCA 1443

THE COURT DECLARES THAT:

1.    The decision of the Reviewer made on 5 January 2012 was reached in circumstances where the Reviewer failed to accord to the appellant procedural fairness.

THE COURT ORDERS THAT:

1.    The orders of the Federal Magistrate of 7 August 2012 be set aside.

2.    The first respondent pay to the appellant his costs of the application in the Federal Magistrates Court and of this appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

INTRODUCTION

1    The appellant is a 27 year old man born in Iran. He arrived in Australia on 21 November 2010. On 22 January 2011 the appellant applied for a protection visa. A delegate of the first respondent made a decision to refuse the application for a visa on 15 March 2011. The appellant requested an Independent Merits Review of this decision on 2 May 2011. The appellant was interviewed by the Independent Merits Reviewer (the Reviewer) and on 5 January 2012 the Reviewer affirmed the decision of the delegate of the Minister.

2    The appellant applied for judicial review of the Reviewer’s decision in the Federal Magistrate’s Court on 10 February 2012 based upon jurisdictional error including the denial of natural justice. On 7 August 2012 that Court dismissed the application: DZACV v Minister for Immigration and Citizenship [2012] FMCA 678. The present appeal is an appeal from the decision of the Federal Magistrate.

THE REVIEWER’S REASONS

3    The Reviewer summarised the appellant’s claim at [118] as follows:

•    He is ethnically a Faili Kurd, born in Iran to parents who had been born in Iraq but were stateless and who had travelled to Iran in or about 1980. Accordingly, he is not an Iranian national and, in all the circumstances, is stateless. He has no right to enter and reside in Iran or Iraq.

•    He fears random questioning and detention by the authorities such as police. He has no freedom in Iran.

•    As a Faili Kurd in Iran, born to parents from Iraq, stateless and with no identity documents, he suffered discrimination in the past and faces future discrimination. The discrimination would largely concern lack of access to: schooling, work, comparable wages, insurance, a bank account, pubic medical care and subsidisation, freedom of movement within the country, property ownership/rental, marriage registration and recourse to the law.

•    If he returns to Iran he will be executed as he departed Iran illegally.

•    He will be considered a spy and a traitor for having travelled overseas and for seeking protection in a western country.

4    The Reviewer accepted that the appellant is a Faili Kurd but did not accept that he was unregistered or stateless. The Reviewer considered at [128] that:

[O]ther information given by the claimant leads me to conclude that he is not a non-citizen of Iran, undocumented and stateless. Whilst the claimant claims to have suffered significant hardship in Iran, with constant and cumulative discrimination and persecution all his life as a direct result of his statelessness and lack of documentation, much of his own evidence shows that he did not suffer the disadvantaged life he claims…

5    The dot-pointed reasons given by the Reviewer that follow this statement are summarised and paraphrased by the Federal Magistrate at [7] as follows:

i)    His education and the reasons for him commencing work at age 12.

ii)    His ability to work for thirteen years.

iii)    His residence in T village for the whole of his life and his parents’ renting of a property with a telephone.

iv)    The fact that he made no claims that members of his immediate family had suffered any particular harm in the village.

v)    The fact that he was able to gather a large sum of money to finance his travel to Australia evidencing that he and his family were not prevented or hindered from working or earning a livelihood.

vi)    The fact that he travelled to Ilam city a number of times notwithstanding his earlier assertions to the assessor that he did not travel to the city.

vii)    That he had no spoken of any actual experiences of harm or harassment at the hands of the Iranian authorities.

6    The Reviewer then summarised his findings at [131]-[132] as follows:

In sum, I accept the claimant is a Faili Kurd. However, country information shows the large majority of Faili Kurds in Iran are Iranian nationals. I do not accept that his ethnicity therefore means he is stateless, undocumented or a displaced/stateless Iraqi or a child born to displaced/stateless parents from Iraq. I accept the claimant was born and resided in a village in Ilam province, Iran. Yet when I consider his claims concerning his life there, and the circumstances of his immediate and extended family, I conclude he did not reside in Iran as a non-citizen: he was not undocumented and/or not stateless. It follows that I find he has a right to enter and reside in Iran, and would not risk deportation after he re-enters. I accept that the claimant and his family never held Amayesh cards, but conclude this is because they were not non-citizens/stateless/refugees/undocumented in Iran and they had no need to hold Amayesh cards. I conclude the claimant never sought an Amayesh card not because he thought he would not be issued one, but because he had no need to. I do not accept the claimant or any of his family have been unable to access appropriate public services and benefits in Iran.

In the light of my findings, I have not gone on to assess whether the claimant has, or is able to seek and obtain, Iraqi nationality.

7    The Reviewer proceeded to consider the appellant’s claim in relation to the danger anticipated should he return as a failed Faili asylum seeker. The Reviewer’s conclusion on this aspect are not challenged by the appellant. However, it should be noted that the Reviewer found, in the course of considering this aspect of the appellant’s claims that the passport he used to depart Iran was a legal Iranian passport issued to him in Ilam.

THE FEDERAL MAGISTRATE’S REASONS

8    There were in four grounds of review ultimately advanced before the Federal Magistrates Court:

(1)    In assessing the appellant’s nationality or citizenship, the Reviewer failed to ask the correct questions and/or failed to consider the claims advanced by the appellant;

Particulars

(a)    The Reviewer did not accept that the appellant was an undocumented, stateless, Faili Kurd.

(b)    The Reviewer’s findings were based partly on the information provided by the appellant.

(c)    The Reviewer found that the appellant’s work and employment history did not demonstrate that the appellant had been “prevented” from either studying or working.

(d)    The appellant’s claim was that he faced discrimination and that he had been denied access to good work opportunities and had no right to legal protection, health care and education.

(e)    The Reviewer asked itself the wrong questions in reasoning that because the appellant had not been prevented from studying or working he was therefore not an undocumented, stateless Faili Kurd.

(f)    The Reviewer further erred in its finding that “given the claims that such harassment and ill-treatment naturally flows from a status as a stateless Faili Kurd, the lack of such ill-treatment strongly suggests that he did not have that status in Iran.”

(2)    The Reviewer failed to take into account relevant considerations and/or failed to consider the process by which the appellant and/or his father could apply for citizenship;

Particulars

(a)    The Reviewer found that the appellant’s family background suggested that he was in fact an Iranian national.

(b)    The Reviewer found that it was “reasonable to consider the existence of an Iranian grandfather who had been born and resided in the province with land, would provide existence to satisfy the Iranian authorities of the father’s Iranian nationality.”

(c)    The Reviewer failed to consider the process of applying for citizenship and/or failed to take into account the application of Article 983 of the Civil Code of Iran.

(3)    The Reviewer denied the appellant procedural fairness in failing to raise with the appellant issues relating to his education and/or literacy levels.

Particulars

    (a)    In finding that the appellant was not a non-citizen of Iran, undocumented and stateless, the Reviewer relied, in part, on the appellant’s history of education and level of literacy.

    (b)    The Reviewer made a finding that the appellant’s “literacy strongly suggest he undertook more than the 5 years of informal schooling at night that he claims.”

    (c)    In his application the appellant had described himself as someone who was “illiterate” and without formal education.

    (d)    The Reviewer failed to raise the issue of the appellant’s education and/or level of literacy with the appellant and thereby denied him procedural fairness.

(4)    In assessing the appellant’s credibility, the Reviewer failed to take into account relevant considerations and/or misconstrued the appellant’s evidence.

Particulars

(a)    In finding that the appellant was a citizen of Iran, the Reviewer relied upon its finding that the appellant had travelled to Ilam city a number of times without any adverse attention from anyone.

(b)    The Reviewer referred to an inconsistency in the appellant’s evidence concerning his travel to Ilam.

(c)    The Reviewer rejected the appellant’s explanation for the inconsistency.

(d)    At hearing, the appellant gave evidence that he had earlier raised this issue with his advisers and the Reviewer accepted this to be the case. Further, the appellant claimed at hearing that he had never attended the city centre in Ilam.

(e)    The Reviewer’s finding failed to take into account the appellant’s earlier, consistent account to his advisers and unfairly misconstrued the claims made by the appellant.

9    Before addressing each ground separately, the Federal Magistrate noted generally at [11]:

… I should say that it is perhaps unfortunate that the Reviewer chose to emphasise his concerns about the [appellant]’s status and only tangentially dealt with his claimed well founded fear of persecution. The effects of this will be seen in the forthcoming discussion.

10    The appellant’s contention with respect to Ground 1 was that the Reviewer erred in concluding that because the appellant had not been prevented from accessing schooling, had not been prevented from working or earning a livelihood, nor been harassed and ill treated by the authorities, the appellant had in fact been documented in Iran. It was argued that the Reviewer had erred by inferring from those findings that the appellant was not in fact an undocumented stateless person.

11    The Federal Magistrate rejected this, saying at [13] that those matters “constitute a refutation of the particular claims that the appellant has made and that as he made those claims as indicating both his statelessness and his persecution there is a natural conflation.” The failure of the Reviewer to explicitly state that he did not accept that the appellant had suffered serious harm within s 91R(1) and (2), the Federal Magistrate found, did not amount do a jurisdictional error (at [17]) because the Reviewer had found that the appellant had not received only a very restricted education and had not had very limited job opportunities as he had claimed, and that contrary to his claims that he and his family had limited accommodation opportunities, they had lived in their village without significant difficulty, and had been able to finance the cost of the appellant coming to Australia.

12    With respect to Ground 2, the Federal Magistrate identified that the appellant had in fact stated that his father had tried to establish his identity and failed. However, as noted, on the basis that the Reviewer made an independent finding that the appellant travelled to Indonesia on his own lawful Iranian passport, the Federal Magistrate considered that the Reviewer had adequately considered the appellant’s disputed Iranian citizenship and had resolved that issue adversely to him: at [19].

13    With respect to Ground 3, the Federal Magistrate understood that the complaint about procedural fairness concerned the Reviewer’s findings about the appellant’s education and standard of literacy. The appellant claimed that as an undocumented Faili Kurd he did not have access to any advanced education.

14    The Federal Magistrate noted that the Reviewer’s conclusion about the reasons for the appellant’s lack of education had nothing to do with his nationality or statelessness, but was due to the fact that it was common in that area to bring children into the workforce to bolster family incomes: [20]. That finding was based on country information that did not appear to have been put to the appellant.

15     The Federal Magistrate correctly noted that the failure to provide the country information was prima facie a breach of the requirement of procedural fairness, citing Plaintiff M61/2010E v Commonwealth; Plaintiff M69 of 2010 v Commonwealth (2010) 243 CLR 319, Kioa v West (1985) 159 CLR 550, Commissioner for Australia Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576; SZQGA v Minister for Immigration and Citizenship [2012] FCA 593 at [134]-[135],[146]-[149] and [157] (SZQGA). Consequently, the Federal Magistrate considered that the omission on the part of the Reviewer was a denial of procedural fairness. However, his Honour found that it would not have affected the Reviewer’s ultimate finding that the appellant was not a stateless Faili Kurd. The Federal Magistrate found at [24]:

Firstly, it was the [appellant]’s own evidence that his cessation of education was in order to work and, in any case, contrary to the adverse country information and based on the [appellant]’s level of literacy, the Reviewer did not believe that the [appellant]’s education was as minimal as claimed. Secondly, whilst acknowledging that one must not speculate, the other six dot-points [addressed in the first ground of review] strongly suggest that it is unlikely that the Reviewer would have come to a different opinion. Finally, the Reviewer made an independent finding that the fact the [appellant] had been able to leave Iran without difficulty “suggests […] the passport [he used] was in fact his own, legal Iranian passport” [130]. Whilst the Reviewer states at [130] that this is not “determinative of the issue” of his status as a stateless Faili Kurd, he goes on to state at [136] that:

…in light of the foregoing I find that he is an Iranian national and so I do not accept that he had to organise a false passport to depart Iran. It follows I conclude the passport he used to depart Iran was in fact his own legal Iranian passport.

This is a finding that was open to the Reviewer on the evidence before him, and it is not for this court to interfere with such a finding. Thus, it follows, to borrow from Barker J [in SZQGA] as cited above, that the decision would not have been different if the error had not occurred. Ground three is not made out.

(Emphasis in original).

16    With respect to Ground 4, the Federal Magistrate found that the consideration of the appellant’s responses was a matter for the Reviewer, and that there was basis for the Reviewer’s findings. The Federal Magistrate reiterated that there was a contradiction in the appellant’s evidence as to the number of times the appellant entered into Ilam city. Further, the Federal Magistrate considered that it would be difficult to say that that credibility finding was an essential and significant element of the decision. The Federal Magistrate considered “[i]t was the appellant’s own evidence that led the Reviewer to believe that he had obtained his own passport and utilised it to pass out of Iran.”

CONSIDERATION

17    Grounds 1, 2 and 3 were reargued on appeal, and in respect of each of them counsel for the appellant argued that the Federal Magistrate had erred in his approach to those three matters. The Federal Magistrate’s finding in respect of Ground 4 has not been appealed against.

18    The first contention is that the Federal Magistrate erred in not finding that the Reviewer had asked the wrong question which affects the exercise of power: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323. The Federal Magistrate identified that the Reviewer did not explicitly state that the appellant had suffered serious harm within s 91R(1) and (2) but that that was implicit in the findings. The appellant submits that the matters identified by the Reviewer might be described as effects that may have flowed from being an undocumented Faili Kurd, but they were not necessarily an accurate measure of whether a person is an undocumented Faili Kurd, and that other factors were mentioned in the country information that might equally have been used, such as the question of whether one could own land, or have access to heath insurance.

19    The appellant also contested the Reviewer’s finding with respect to the appellant’s work history, submitting that that is not a useful measure of whether the appellant is an undocumented Faili Kurd. That is because illegal work may be tolerated in Iran enabling stateless, undocumented Faili Kurds to work in spite of their status.

20    The respondent submitted that the Reviewer responded to the appellant’s claim as put. The appellant’s claim of past and future discrimination and persecution were underpinned by his claim to be a stateless and undocumented Faili Kurd. In support of that claim, the appellant submitted numerous examples of prior hardship in support of the submission that the same sort of persecution and hardship on this account would remain if he were to return to Iran. The Reviewer’s assessment of the claimed hardship, the respondent says, was part of his assessment of the appellant’s claim to be stateless and undocumented, and that those seven points stood at odds with those claims. Further, as the Federal Magistrate noted, the Reviewer relied upon matters in addition to those claims to find that the appellant was not a stateless Faili Kurd.

21    It may be accepted that asking the wrong question in a way that affects the exercise of power is an error going to jurisdiction. The attack upon the Reviewer’s decision is that the Reviewer, instead of asking whether upon the whole of the material, the appellant is an undocumented stateless Faili Kurd, decided that question by setting up and measuring seven criteria to determine the appellant’s status when that was an inappropriate course to adopt.

22    The Reviewer, in my view, did not fall into that error. He recognised that the appellant, at a general level, may have been within the extensive group of Faili Kurds expelled from Iraq in 1980 and deprived of Iraqi citizenship who now live as stateless and undocumented Faili Kurds in Iran. The existence of such a group was confirmed by independent country information.

23    It was then appropriate for the Reviewer to consider the material explicitly relating to the appellant to see if he fell within that group. The appellant claimed to be undocumented because his parents had fled Iraq, and his father had not been able to secure documentation or citizenship. The Reviewer then referred to the seven topics which persuaded the Reviewer that the appellant had not suffered the constant and cumulative discrimination and persecution as a result of statelessness and lack of documentation that he claimed. Those topics concerned:

(1)    the appellant’s education level – the Reviewer considered the appellant had had more schooling than he claimed, assessed by his literacy level, and that his starting work at a young age was typical for many in the Ilam province and so not indicative of him being deprived of schooling due to his claimed status;

(2)    the appellant’s work opportunities – the Reviewer considered that the fact that the appellant (and his father) had a reasonable annual income and the appellant had worked continuously from age 12 to when he left Iran as a shepherd, farmer and labourer did not show he was prevented from working or earning a livelihood;

(3)    the appellant’s accommodation – the Reviewer thought the appellant had given inconsistent information about whether he had lived in his village his whole life, or in a tent until 2006 and then in the village, and found the appellant had lived in a rented house in the village with a phone for many years without apparent difficulties, so that he concluded the family is well settled and do not live there as undocumented non-citizens;

(4)    the appellant’s family – the Reviewer noted there was no suggestion that they had suffered significant disadvantages or detriments suggestive of being undocumented non-citizens;

(5)    the appellant’s finances – the Reviewer considered that his ability with his father to save 5.5 million toman (plus 2 million toman borrowed from his village) showed he and his family were not prevented from working;

(6)    the appellant’s travel to Ilam city – the Reviewer noted the appellant had given inconsistent evidence about the frequency of his travel to Ilam city, and so he had “serious concerns” about the appellant’s credibility, and he also found the appellant had attended Ilam city a number of times (to organise his passport photo) without attracting adverse attention; and

(7)    the appellant’s treatment – the Reviewer considered that the fact that the appellant had not reported instances of actual harassment or harm from the authorities strongly suggested he was not a stateless Faili Kurd.

24    Each of those seven matters was capable of being supported by information, including independent country information, before the Reviewer. In my view, although the weight to be given to those factors is a matter on which different minds may disagree, that reasoning on the part of the Reviewer does not demonstrate error of the type alleged. The Reviewer has not specified the necessary criteria to demonstrate statelessness or the fact that the appellant was undocumented, but has identified a number of topics from the material which are capable of informing the answer to that issue.

25    Moreover, the Reviewer’s further reasoning confirms that he made no such error. The Reviewer then referred in more detail to the appellant’s evidence about his family background, and expressed the view that that background – particularly of both his paternal and maternal grandfathers – tended to suggest they were Iranian nationals whose status could have been proved to the Iranian authorities so that his father should have been able to establish his entitlement to Iranian nationality to the Iranian authorities. That picture was completed, in the Reviewer’s mind, by the ease with which the appellant left Iran, indicating his passport was his legal Iranian passport.

26    The Reviewer is not shown to have erred in the manner asserted. The Reviewer considered all the material, and reached a conclusion of fact that the appellant is not an undocumented stateless Faili Kurd living in Iran, but is entitled to enter and reside there. No one piece of evidence was treated as conclusive one way or the other on that question. It was the assessment of all the material, including the weight to be attributed to some of it in the light of the Reviewer’s assessment of the reliability of the appellant’s evidence, that led to the conclusion. This appeal does not entitle the Court simply to re-assess that process of reasoning and to substitute the Court’s view on the conclusion; it is confined to identifying jurisdictional error.

27    For the reasons given, I am not persuaded that the error asserted by the first ground of appeal is made out.

28    The second ground of appeal concerns whether the Reviewer erred in concluding that the appellant could obtain Iranian citizenship, as distinct from deciding that he was eligible to do so by his lineage.

29    The Reviewer accepted that the appellant is a Faili Kurd and was in receipt of country information, demonstrating that it would be extremely hard to demonstrate ancestry without official documents, consistent with the appellant’s evidence. The appellant submits that the Federal Magistrate’s finding that that issue was redundant “in light of positively finding the appellant was an Iranian national” was to “put the cart before the horse.” The appellant submits that it was not open to the Federal Magistrate to make that finding, without considering the relevant material, namely articles 976 and 983 of the Civil Code of Iran.

30    The Federal Magistrate considered that there might be “some strength in an argument that the Reviewer had failed to take into account the very relevant material” but for the finding made by the Reviewer that the appellant had travelled to Indonesia on his own passport.

31    The difficult, the appellant says, with that line of reasoning is that the Reviewer’s findings that the appellant had a passport was contingent on the finding that he was an Iranian national. The Reviewer states at [130]:

While not determinative of the issue, his evidence that his passport was made for the purpose of getting through the airport and did get him through the airport checks without any difficulty at all, suggests the ease of his passage was because the passport was in fact his own, legal Iranian passport.

32    The appellant submits that this was not a conclusive statement on that point. At [136] the Reviewer later states, in discussing whether the appellant would have a reasonable fear of returning to Iran:

Intertwined with his stated fear to return to Iran is the claimed manner of his departure using an Iranian passport to which he was not entitled, and how his travel to Australia would be viewed by the Iranian authorities if he does return there. However, in light of the foregoing I find he is an Iranian national and so I do not accept he had any need to organise a false passport to depart Iran. It follows I conclude the passport he used to depart Iran was in fact his own legal Iranian passport issued in Ilam.

33    The respondent submits that the Federal Magistrate was correct to find that it was unnecessary for the Reviewer to separately consider the process by which the appellant and/or his father could apply for Iranian citizenship, given that the Reviewer had already found that the appellant was not undocumented and/or stateless. The Reviewer had already made that finding, on the basis of the matters discussed above at [23].

34    In the Reviewer’s reasons, having addressed the issue as to the appellant’s claim to be a stateless undocumented Faili Kurd, the Reviewer then addressed the claim that in any event the appellant was at risk by reason of being a Faili Kurd returning from “the West”. Immediately before addressing that claim, the Reviewer at [131] to [132] said:

I conclude he did not reside in Iran as a non-citizen: he was not undocumented and/or stateless. It follows that I find he has a right to enter and reside in Iran, and would not risk deportation after he re-enters. I accept that the claimant and his family never held Amayesh cards, but conclude this is because they were not non-citizens/stateless/refugees/undocumented in Iran and they had no need to hold Amayesh cards. I conclude the claimant never sought an Amayesh card not because he thought he would not be issued one, but because he had no need to. I do not accept the claimant or any of his family have been unable to access appropriate public services and benefits in Iran.

35    It is clear that the second ground of appeal is premised on the basis that the Reviewer had not already determined that the appellant was a person who had Iranian nationality, but up to that point had decided only that he could possibly be eligible for such nationality. It is only in that context that the question could arise about whether in fact he could obtain such citizenship.

36    In my view, the premise is not made out. The passages of the Reviewer’s reasons to which I have referred indicate that the appellant had been found to be one of the majority of Faili Kurds in Iran who are Iranian nationals. The analysis of the relevant country information by the Reviewer at [81]-[83] of his reasons indicates that there are about 3 million Faili Kurds in Iran, the vast majority of whom are Iranian nationals. There are a significant number who are registered Faili Kurd refugees (refugee registration cards are called Amayesh cards) and some 4000 or so who are unregistered and undocumented and stateless. In that context, the passage from the Reviewer’s reasons quoted at [34] above clearly shows the Reviewer found the appellant was neither a registered refugee nor an undocumented, stateless Faili Kurd in Iran. The remaining option is that the appellant is an Iranian national. It is for that reason the Reviewer did not need to consider if he was an Iraqi national, and why the Reviewer then proceeded to consider whether merely as a Faili Kurd returning to Iran, despite his Iranian nationality, he might be persecuted.

37    The appellant told the Reviewer that, soon after the appellant was born, the appellant’s father had unsuccessfully tried to get Iranian certification, but had failed. The appellant himself had never made any efforts to do so. The absence of a birth certificate may make it difficult to prove Iranian ancestry, even though in fact there may have been lengthy Iranian ancestry (as is the case with the appellant’s paternal grandfather).

38    However, the Reviewer did not overlook that material. The Reviewer nevertheless concluded, on the whole of the material, that the appellant was an Iranian national. The Reviewer took into account that the appellant had travelled to Ilam city a number of times, including to get a passport photo, without adverse consequences. I do not think there is any ambiguity about the finding that the appellant had a lawful passport. The Reviewer at [136] made that finding. It is correct to say that the issues about whether he had Iranian nationality, and whether he had a valid Iranian passport, were interwoven. But the Reviewer’s reasoning is not flawed in the way asserted because of that. His initial focus was on the claim to be an undocumented stateless person. Whether he had a valid passport was an incidental finding, that is, a finding (as with other findings) towards a conclusion about that initial and more general question. Having answered that question, on the whole of the evidence, the finding about the passport had been made and was maintained.

39    The final ground for appeal concerned the failure of the Reviewer to put to the appellant that his education and literacy issues were dispositive issues. The appellant submits that the Federal Magistrate’s reasoning that “any correction to the denial of procedural fairness would not have affected the Reviewer’s ultimate finding that the appellant was not a stateless Faili Kurd” was not in keeping with the philosophical principles of procedural fairness. In SZQGA, Barker J stated, discussing the natural justice requirement, at [157]:

There may be a tendency to encapsulate the principles I have just recounted as meaning that, if there is “no practical injustice”, then a remedy should be refused even if the ground of relief contended for is made out. I consider one needs to be cautious in summarising the relevant principles under this catchphrase, as it may lead a court into making an impermissible inquiry into the merits of a decision made and being inclined to substitute its view of what an appropriate outcome would have been instead of allowing an original decision-maker to make the decision entrusted to them.

40    The appellant submits that the Federal Magistrate’s findings were based on three erroneous assumptions. The first is that the Federal Magistrate states that “it was the appellant’s own evidence that his cessation of education was in order to work.” It is not clear what the evidentiary basis is for that assertion. In the appellant’s interview with the IMR he stated that “in Iran I never have any chance to hold any card or to be able to study” and that the appellant did not have an opportunity to explain the circumstances surrounding his cessation of education.

41    The second is the reference to the fact that the denial of access to education was one of the seven issues referred to in [5] above. The appellant submits that it is not clear from the decision what weight the decision maker put on each of those seven issues, and that even if the issue of education only played a limited role, it is no reason to deny relief. In SZQGA, Barker J stated at [149]:

It also seems generally to be accepted that it is no answer, where a denial of procedural fairness is demonstrated, to resist relief on the basis that the error involved is “trivial”.

42    The third is that the Reviewer made an independent finding that the appellant was able to leave Iran without difficulty; and that he did not have to organise a false passport to depart Iran.

43    The respondent submits that in order to establish jurisdictional error the appellant is required to show that the Reviewer’s decision may have been different had the error not occurred: SZQGA. The respondent submits that the Federal Magistrate properly weighed the fact that there were discrepancies in the evidence given by the appellant; that the Reviewer had identified another six points on which basis the respondent rejected that the appellant was stateless and undocumented, and that he had his own legal Iranian passport.

44    It is apparent, as the Federal Magistrate noted, that the Reviewer did not put to the appellant the country information upon which the conclusion in [23](1) above was based. It was used to refute the appellant’s claim that he had been denied access to education. As noted above at [15], the failure to give the opportunity to comment on that material was a failure to give the opportunity to comment on that material was a failure to accord the appellant procedural fairness.

45    The issue on this appeal is whether the Federal Magistrate erred in concluding that, if procedural fairness had been accorded to the appellant, that would not have affected the Reviewer’s finding that the appellant was not a stateless Faili Kurd. There were three reasons given for that conclusion set out in the reasons of the Federal Magistrate and quoted in full at [15] above.

46    I respectfully disagree with that conclusion of the Federal Magistrate in the circumstances. The Reviewer’s “dot points” were all directed to showing that the appellant did not suffer the disadvantaged life he claimed, including in relation to his education. It was the package of that material which enabled the Reviewer to reach that conclusion. That conclusion, together with other information about the family background and the circumstances of his departure from Iran, which in sum supported the finding that the appellant did not live in Iran as an undocumented stateless Faili Kurd. The Reviewer said at [131]: “Yet when I consider his claims concerning his life there [in Iran], and the circumstances of his immediate and extended family …” that conclusion was reached. I do not think the reference to “in light of the foregoing” in [136] of the Reviewer’s reasons, referred to by the Federal Magistrate, diminishes that observation. As I read it, that reference is to the Reviewer’s conclusion in [131] as a reason to reject the separate claim then being considered that the appellant faced the risk of persecution as a Faili Kurd returning from the West, namely that he had been found to be an Iranian national.

47    That finding may be interfered with, on the limited basis of concluding it was made in breach of the rules of procedural fairness. The Court may, and should, interfere with such a finding if it was reached in breach of those rules, provided the breach may have affected the decision. That does not involve the Court reassessing the correctness of the factual findings.

48    It is necessary, then, to consider the other two reasons for the Federal Magistrate’s decision. In my view, those reasons do not go far enough to show that if there had been no denial of procedural fairness, the decisions of the Reviewer may not have been the same: see per Barker J in SZQGA at [157]. It may fairly be said, as the Federal Magistrate did, that the other six matters considered also firmly pointed towards the conclusion the Reviewer reached so that it is “unlikely” that the Reviewer on any event would have come to a different conclusion. But I do not consider that unlikelihood is a proper application of the appropriate test as discussed by Barker J for the reasons given in the review of the relevant authorities in SZQGA. It may be said that the unlikelihood becomes stronger because of the review of the appellant’s family background, and how he left Iran (although that topic was said by the Reviewer at [130] not to be determinative of the issue). As to the appellant’s own evidence, he clearly said in his evidence to the Reviewer and in his earlier statutory declaration that he had been deprived of educational opportunities. If the Reviewer had put to the appellant the relevant country information, his response may have given a perspective which would not have enabled the Reviewer simply to put the appellant into the category of those who chose to, or were forced to, cease education to work – whether Iranian nationals or not – as a result of the economic conditions in the Ilam province.

49    In my view, the reasons of the Federal Magistrate do not warrant the conclusion that the decision would not have been different if the failure to accord procedural fairness had not occurred, and the reasons of the Federal Magistrate at [24] also suggest that that element of the factors put into the scales (concerning the appellant’s educational opportunities) was independent of the conclusion that the appellant was an Iranian national when I think a proper reading of the Reviewer’s reasons indicates to the contrary.

ORDERS

50    For those reasons, in my view, the appeal succeeds. I set aside the orders of the Federal Magistrate made on 7 August 2012 and instead declare that:

(1)    the decision of the Reviewer made on 5 January 2012 was reached in circumstances where the Reviewer failed to accord to the appellant procedural fairness in the manner referred to in these reasons, and

(2)    the first respondent should pay to the appellant his costs of the application in the Federal Magistrates Court and of this appeal.

51    I understand that it will follow from these orders that the first respondent will arrange for there to be a fresh Independent Merits Review of the assessment made by a delegate of the first respondent of 15 March 2011 determining that the appellant is not entitled to refugee status. In case that is not correct, I also give leave to the parties to seek such further or other orders as they may consider appropriate in the light of these reasons for judgment.

Associate:

Dated:    17 December 2012