FEDERAL COURT OF AUSTRALIA

MZYOA v Minister for Immigration and Citizenship [2012] FCA 1462

THE COURT ORDERS THAT:

1.    The appeal is allowed.

2.    The First Respondent to pay the Appellant's costs, including the costs of the proceeding before the Federal Magistrates Court.

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

REASONS FOR JUDGMENT

Introduction

1    This proceeding is an appeal from the judgment of the Federal Magistrates Court (MZYOA v Minister for Immigration & Anor [2011] FMCA 45).

2    The appellant is a citizen of Afghanistan of Hazara ethnicity. He left Afghanistan illegally and arrived in Australia by boat on 11 February 2010 at Christmas Island. He is an “offshore entry person” and an “unlawful non-citizen” for the purposes of the Migration Act 1958 (Cth) (“the Act”) because he arrived at Christmas Island, which is an “excised offshore place”, without a visa or other legal right to enter Australia. He was put into detention pursuant to the Act.

3    The appellant claims refugee status - that is, he contends that he meets the definition of a refugee in Article 1A of the United Nations 1951 Convention Relating to the Status of Refugees, incorporating the 1967 Protocol Relating to the Status of Refugees (“the Refugee Convention”), to whom Australia therefore owes protection obligations.

4    By operation of s 46A(1) of the Act, as an unlawful non-citizen the appellant cannot make a valid application for a visa. However, the Minister for Immigration and Citizenship (“the Minister”) has a power under s 46A(2) to permit the appellant to do so. The Minister decided to consider exercising the power to lift the bar preventing the appellant from applying for a visa. The appellant was invited by the Minister’s department - the Department of Immigration and Citizenship (“the Department”) - to make an application for refugee status through a Refugee Status Assessment (“RSA”). He was also offered a review of any negative RSA through what the Department calls an Independent Merits Review (“IMR”). Through the RSA or IMR a recommendation and report was to be made to the Minister which he may, or may not, take account of in making a decision under s 46A(2). This administrative process is described in more detail in Plaintiff M61/2010E v Commonwealth; Plaintiff M69 of 2010 v Commonwealth (2010) 243 CLR 319.

5    The appellant lodged a request for an RSA on 11 April 2010. After considering his claim an officer of the Department recommended that he not be recognised as a refugee under the Refugee Convention. On 22 September 2010 the appellant applied for review of the RSA through an IMR. On 7 July 2011 the IMR (“the Reviewer”) also recommended that the appellant not be recognised as a refugee.

6    The appellant sought judicial review of the Reviewer’s recommendation in the Federal Magistrates Court. On 30 January 2012 the learned Federal Magistrate dismissed the application. The appellant now appeals to this Court against the decision of the Federal Magistrate. The Minister opposes the appeal. The Reviewer has filed a submitting appearance.

7    For the reasons I set out below I have decided to allow the appeal.

The imr hearing and decision

The facts

8    The appellant is an Afghan Hazara of Shi’a Muslim faith, with a wife and six children aged between 3 and 16, five of whom are girls. He was born in 1968 in Maidan Wardak, a province in the central east region of Afghanistan. From 1975 until 1985 he worked as a fruit seller in his father’s business. In order to avoid compulsory military service the appellant left his homeland in 1986 and moved to neighbouring Iran. He lived there for 22 years until 2008 when he returned to Kabul. He returned because of the significant difficulties associated with living illegally in Iran.

9    The application to the Reviewer was based on a number of different claims. These claims were first detailed under a series of headings in a lengthy letter from the Refugee and Immigration Legal Centre dated 22 March 2011 (“the March 2011 RILC letter”). The headings were as follows:

(a)    Risk of serious harm on account of the applicant’s Hazara ethnicity and membership of the Hazara community;

(b)    The applicant’s fear of being targeted by the Kuchi and Taliban on account of his ethnicity and religion and/or his membership of the particular social group ‘Hazara landowners/farmers’;

(c)    Risk of serious harm on account of the applicant’s Shi’a religion;

(d)    Risk of serious harm on account of;

(i)    the applicant’s membership of the particular social group ‘Hazaras who have returned to Afghanistan after living abroad’; and ‘Afghans who have returned to Afghanistan after living in a Western country’ and/or ‘Afghans who have sought asylum in a Western Country’;

(ii)    actual or imputed political opinion in favour of the West, coalition forces and the Karzai government and/or in opposition to the Taliban and other anti-government elements on account of his long absence from Afghanistan, his presence in Australia, his Hazara ethnicity and Shi’a religion.

10    The claim which is central to the appeal is contained within heading (d)(i) above – namely that because he was an Hazara who had returned to Afghanistan after living in Iran for 22 years the appellant faced a risk of persecution (“the Returnee from Iran Claim”). The appellant contends that not all of the integers of this claim were properly considered and dealt with by the Reviewer. Because the appellant does not make this contention in relation to the other bases for refugee status (advanced under the other headings) it is unnecessary that I deal with them.

11    The appellant said in an undated statement provided to the Reviewer:

[3]    I strongly disagree with the information that my case officer relied on which indicates that Hazara and Shi’a Muslims are no longer at risk in Afghanistan. As I explained to my case officer, when I decided to return to Afghanistan from Iran I also thought that Afghanistan would now be safe for Hazaras because the Taliban are no longer in power. Unfortunately, I was very wrong and I saw with my own eyes the dangers and hardships that Hazaras face in Afghanistan. I do not believe that it will be safe for me to return there. Hazaras continued to be at risk of harm from Taliban, Pashtuns and Tajiks and unfortunately, I do not see any hope of the situation changing any time in the near future.

…

[4]    I am originally from Beshood, in Wardak province although my family moved to Kabul when I was very young…. I have not been to Beshood since I was a young child. I do not believe that it would be a safe place for me to live as an Hazara and a Shi’a Muslim. For one thing, I have no family left in that area. My family still does have some land there but I have no idea what has happened to it or who is looking after it now. My cousin had asked someone to look after the family's land but he has been killed and I don't know what arrangements he made. I don't have any farming skills so would not be able to make a living there. I would not be able to live there because every year Kuchis come and kill Hazaras and take their land and property. They are very aggressive against Hazaras. For example, about two or three years ago, Kuchis attacked Beshood and killed many Hazaras. They are against us because they are Pashtuns and we are Hazaras and also because we are Shi’a Muslims. Furthermore, I have been away from Afghanistan for over 20 years and I fear that this may also identify me and put me at further risk.

(Emphasis added)

In the last paragraph of this submission the appellant sets out his fear that he will be killed if returned to Afghanistan because he is identifiable as a person who had been living in Iran for 22 years, and is therefore liable to be targeted.

12    In the March 2011 RILC letter the appellant indicated that, amongst other things, his fear of persecution arose from the risk of standing out because of cultural or social changes arising from his living in urban Iran for so long. The letter states:

… the applicant will also face harm on account of the fact that he will be seen as pro-West and pro-Karzai government and that this risk is attributable to the fact that he is of Hazara ethnicity and Shi’a faith, has spent many years outside Afghanistan and will be a returnee from a Western country….

…

The applicant has been out of Afghanistan for over 20 years and has lived in a relatively urban environment. In our submission, on account of these factors, the applicant would be clearly identifiable as a returnee and would be at a significant risk of harm.

In relation to imputed political opinion and the above mentioned social groups more generally, we further note that country information also indicates that the Hazara community is regarded as being pro the West and Karzai government, and by implication, anti the ethnically Pashtun Taliban…

In our submission, the above information, strongly indicates that the applicant will be at risk as a returnee and will be imputed with a political opinion in favour of the West and the Karzai government and in opposition to the Taliban and Kuchi…

(Emphasis added.)

13    In a letter to the Reviewer dated 17 June 2011 (“the June 2011 RILC letter”) the appellant put forward further information regarding the Returnee from Iran Claim. This letter reiterated the appellant’s concerns about standing out because of social and cultural differences caused by his living in Iran, referring in particular to changes to his accent. The letter states:

We now enclose a news article from BBC News (Persian) website together with English translation. Unfortunately, the attached English translation does not indicate the source of this article, however it can be accessed via the following link http://www.bbc.co.uk/persian/afghanistan/story/2008/07/080702_ram-afghan-refugees.shtml.

The article states that the masses of Afghans who have returned to Afghanistan are leaving again, including to Iran and Pakistan. The article further notes that among the reasons for this are security and challenges in returnees being able to reconnect back into society. We note that this is entirely consistent with the applicant’s own history of returning to Afghanistan from Iran, only to be forced to flee again. In particular, we refer to the following passage:

“The experts believe that the cultural differences of the refugees who have returned to Afghanistan to that of the people in their native areas will cause these people not to be able to have an active role in the society and find a suitable place for themselves in social relationships in Afghanistan.

Hamidullah Farooqi, a professor at the Kabul University says that the low capacity to bond in the society gives the returnees the feeling that they cannot be connected in their native societies. Therefore they prefer to migrate to the countries in which they have a lot in common with the culture and mindset of those people. He says “I can give you a clear example. Those who have returned from Iran and have a particular accent, when they enter the Afghan society, they face inappropriate and degrading conduct.”

Mr Farooqi adds that the Afghan government has not had any specific consideration of this problem yet. Whereas, according to him, the authorities should take this issue seriously and should undertake some programs to increase awareness among people in regards to differences caused by immigration.”

In our submission, the above comments support [the appellant’s] claim that he will face harm on account of his having lived abroad, both in Iran as well as in a western country.

[Emphasis in original]

14    On a fair consideration of the documents and interviews making up the appellant's claim, the Returnee from Iran Claim had three integers. The appellant claimed that because he was an Hazara who had lived in Iran for 22 years:

(a)    he would be imputed with a political ideology or foreign affiliations or sympathies that would make him a target for persecution;

(b)    he would be imputed to have wealth that would make him a target for persecution; and

(c)    he was culturally or socially changed and identifiable and, as such, would be a target for persecution.

It is only the integer of this claim set out in subparagraph (c) which the appellant contends was not considered and dealt with by the Reviewer.

15    The Reviewer’s findings with respect to the Returnee from Iran Claim were set out at paragraphs 40 to 42 of the Statement of Reasons dated 17 June 2011 (“the reasons”), as follows:

Political Opinion and Returnees / Westernised / Asylum Seekers

[40]     It is accepted that neither [the appellant] nor his family have ever been involved in or associated with any political group or organisation, that he has never been arrested or detained by police or security organisations, and has lived in Afghanistan for a total of approximately eighteen years (1968 to 1985 and 2008 to 2010). It is also accepted that [the appellant] resided in Iran for approximately 22 years (1986 to 2008). The reviewer finds that as (the applicant) and his family members have not publicly or privately expressed any political opinion, that he has lived in a neighbouring Muslim country to avoid compulsory army service and has remained in confidential lawful detention for fourteen months in Australia after applying for asylum, [the appellant] does not have a political opinion (either pro Government or anti Taliban) nor does he have any personal attributes that would give him a profile of being westernised, such as a westernised accent or employment with a western company. As it has been accepted that [the appellant] arrived in Australia in February 2010 where he has since remained in lawful immigration detention and that his asylum application details have been managed throughout his time in Australia on a confidential basis, the reviewer does not accept that the [sic] reason for his most recent absence from Afghanistan he would be known to others upon his return, such that he would be imputed as having any political opinion.

[41]     Information at preceding subparagraphs 33(v) to (ix) is that Afghan returnees from Iran in 2008 and 2009 numbered 3,600 and 5,000 respectively, but 935,000 Afghanis continue to reside in Iran, and that of the proportionally low number of returnees (as compared with non returnee civilians) who are subject to targeted (that is, not indiscriminate) violence, the motivations of the perpetrators are for reasons of either the victims’ perceived wealth (and thus economic benefit to the perpetrator) or suspected association with Government or foreign interests. As it has been found that [the appellant] does not have a political opinion (either pro Government or anti Taliban), that he does not have any personal attributes that would give him a profile of being westernised, and that the reason for his most recent absence from Afghanistan would not be known to others upon his return, the reviewer does not accept that his being a failed asylum seeker returned from Australia provides a basis upon which he would be imputed as having a political opinion or membership of any such particular social group whatsoever. Nor do [the appellant’s] circumstances enable the Taliban or other non-State actors to form any thoughts about what he may or may not have said to others during his absence from Afghanistan, and thus the reviewer does not accept he is at any risk of harm related to Taliban and / or spies. As the information at preceding subparagraphs 33(vii) to (x) is accepted, the reviewer finds there is nothing more than a remote or fanciful chance [the appellant] would be harmed for reasons of an imputed political opinion, or due to the fact of his return from Australia as a failed asylum seeker.

[42]    For the above reasons the reviewer finds there is no objective basis for [the appellant’s] fear of harm in the reasonably foreseeable future in Afghanistan because of his being a returnee and / or failed asylum seeker. As the reviewer also finds his personal circumstances are such that he will not be imputed as having a political opinion, and / or membership of any postulated particular social groups returnees / westernised / asylum seekers (howsoever described), it follows the harm he fears is not for a Refugee Convention reason.

16    The Reviewer concluded that there was no real chance that the appellant would be persecuted in the Refugee Convention sense in the reasonably foreseeable future, and therefore did not have a well-founded fear of persecution. The Reviewer found that the appellant did not meet the criterion for a protection visa set out in s 36(2) of the Act and recommended that he should not be recognised as a person to whom Australia has protection obligations under the Refugee Convention.

The appeal to the Federal Magistrates Court

17    On 1 August 2011 the appellant sought judicial review of the Reviewer’s decision. In his Further Amended Application the appellant set out the grounds as follows:

Grounds of application

1. The recommendation of the Independent Merits Reviewer was affected by an error of law in that the Reviewer failed to accord the applicant procedural fairness.

Particulars

(a)    The applicant made three separate claims under the Convention ground of particular social group, namely “Afghans who have returned after living abroad”, “Afghans who have returned to Afghanistan after living in a Western country” and “Afghans who have sought asylum in a Western Country”;

(b)    The Reviewer failed to deal with the first of these claims, where the applicant had returned to Afghanistan from Iran in 2008, having lived there for 22 years;

(c)    The Reviewer further failed to deal with his subsequent time in Australia, as a separate issue to whether it was a western country, and separate to the confidentiality or otherwise of his asylum claim.

18    The appeal to the Federal Magistrate's Court was heard on 24 November 2011. In a judgment dated 30 January 2012 the learned Federal Magistrate summarised the appellant’s case in the following terms:

[10]     Mr Gilbert of counsel, who appeared for the applicant, correctly asserted that the applicant’s case involved what was described as a short point. It was submitted that the Reviewer simply failed to address a part of the case put on behalf of the applicant, and that that failure gave rise to jurisdictional error. Both sides proceeded on the footing, I think correctly, that failure to address a case put by an applicant may give rise to jurisdictional error.

[11]     The claim that was said not to have been addressed was a fear of persecution by reason of membership of a particular social group, namely “Afghans who have returned after living abroad.” That claim has its origin in a submission from the applicant’s advisor dated 22 March 2011 (CB 82 at paragraph 1(b)iv)) which had two other sub-parts, namely “Afghans who have returned to Afghanistan after living in a Western country” and/or “Afghans who have sought asylum in a Western country.” It was submitted that the latter two facets of this claim were addressed but the first was not.

19    The appellant submitted to the Federal Magistrate that on a proper reading of the reasons the Reviewer had not considered the risk of persecution the appellant faced as a returnee from Iran. His Honour explained this part of the appellant’s submissions as follows:

[30]     Counsel for the applicant submitted that the use of the phrase “for the above reasons” [in paragraph 42 of the reasons] meant that the decision on the three sub-facets of the returnee argument must necessarily be limited only to the latter two and not include the generalised claim of suffering harm as a returnee from a foreign country.

20    The Minister’s submissions in response, were summarised by his Honour in the following terms:

[12]     The first respondent’s submission, putting the matter shortly, was that the claim was indeed addressed, as evidenced by the decision of the Reviewer, and reference was made to the decision of the High Court in Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (“Wu Shan Liang”) in this regard. Furthermore, and in any event, the first respondent submitted that the state protection issue saved the decision.

21    His Honour rejected the appellant’s contention that the Reviewer had fallen into jurisdictional error, and held as follows:

[31]     In this particular instance, I think that the reference by counsel for the first respondent to the observations of the High Court in Wu Shan Liang, that the decisions of a Reviewer should not be looked at with an eye overly attuned to the perception of error has force.

[32]     What the Reviewer actually did was to deal in terms with the argument that the applicant himself had advanced; namely, that he would face risk as a returnee or failed asylum seeker. Those two matters were intimately interrelated and encompassed the argument about being returned from a western country.

[33]     The Reviewer did, however, say:

“As the reviewer also finds his personal circumstances are such that he will not be imputed as having a political opinion, and / or membership of any postulated particular social groups returnees / westernised / asylum seekers ... (emphasis added).”

[34]     It is clear that the Reviewer was adding something to that first finding.

[35]     The Reviewer could have made the matter clearer, but nonetheless the reasons for the decision need to be looked at in context.

[36]     The most that was ever said in terms about the applicant’s risks of harm as a result of returning from Iran were the remarks about degrading conduct referred to in the submissions from the applicant’s adviser, which appear to have been received after close of business hours on the last day postulated for their arrival. I agree with counsel for the applicant that in the ultimate, nothing turns on this matter as the Reviewer plainly took those materials into account.

[37]     While the Reviewer dealt with the matter in a very passing way, it is also fair to say that when looked at as part of the totality of the submissions advanced on behalf of the applicant, this particular sub-facet of the case was itself also only the most passing moment.

[38]     I do not think that the Reviewer failed to address the applicant’s point and therefore did not fall into jurisdictional error.

22    The appeal was dismissed.

The appeal to the Federal Court

23    On 17 February 2012 the appellant appealed to this Court. The Notice of Appeal sets out the ground as follows:

1.    The Federal Magistrate erred in finding that in recommending to the first respondent that the applicant not be recognised as a person to whom Australia owes protection obligations, the second respondent did not:

(a)    fail to observe the requirements of procedural fairness;

(b)    fail to apply correct legal principles.

Particulars

(i)    The applicant made three separate claims under the Convention ground of a particular social group, namely “Afghans who have returned after living abroad”, “Afghans who have returned to Afghanistan after living in a western country” and “Afghans who have sought asylum in a western country”;

(ii)    The Reviewer failed to deal with the first of these claims, where the applicant had returned to Afghanistan from Iran in 2008, having lived there for 22 years;

(iii)    The Reviewer further failed to deal with this subsequent time in Australia, as a separate issue to whether it was a western country, and separate to the confidentiality or otherwise of his asylum claim here.

The Federal Magistrate erred in finding that, in the Independent Merits Review Report dated 17 June 2011 (the ‘IMR report’), the second respondent did not fail to consider an integer of the applicant’s claim.

24    The task of the learned Federal Magistrate in dealing with the judicial review application was restricted to a determination as to whether the Reviewer’s recommendation was affected by jurisdictional error. His Honour’s task was to declare and enforce the law which determines the limit and governs the exercise of the Reviewer’s power. The Court had no jurisdiction to simply cure any administrative injustice or error by the Reviewer, or conduct a review of the merits of its findings: Attorney General (NSW) v Quin (1990) 170 CLR 1 at 36 per Brennan J. This Court’s review is restricted in its scope by the same considerations as applied in the Federal Magistrates Court. My task is to determine whether the judgment of the Federal Magistrate is affected by appealable error.

25    The question before me turns on whether the Reviewer properly considered each integer of the Returnee from Iran Claim. The appellant was not represented in the hearing before me and, understandably enough, was unable to make submissions as to jurisdictional error. He simply submits that if he is returned to Afghanistan he will be killed. He states:

I don't want to go back because I believe 100 per cent that probably they will behead me and they put my head on top of my chest…. I don't know what to say but the only that I request you is to help me to be - to alive and to serve my family and my children. (sic)

I have scrutinised the documents in the Appeal Book that set out the appellant’s claims and the submissions by counsel for the appellant in the Federal Magistrate’s Court in order to deal with the contention as to jurisdictional error.

Consideration

26    It seems clear that the appellant’s life in the relatively short period of his return to Afghanistan between 2008 and 2010 was very difficult. For example, the appellant swore that his five young daughters were sexually harassed and molested by four men of Kuchi ethnicity. This violence occurred in public while the girls were in the company of the appellant and his wife. The appellant attempted to defend his daughters but was attacked and beaten badly by half of the assailants, while the others continued to molest them. The assaults were only stopped when they attracted the attention of passers by. The Reviewer accepted that this incident occurred, although she did not relate it to the appellant's Hazara ethnicity or his Shi’a faith. She treated the assaults as “opportunistic” or “indiscriminate” sexual harassment, and the assault on the appellant as a furtherance of that harassment.

27    The appellant also swore that shortly before he left Afghanistan he had worked as a welder with his cousin in a business that made doors. His cousin was beaten and shot dead when, in attempting to obtain payment of a business debt, he went with some Pashtun customers to a neighbouring province. The appellant knew these customers and had been asked to go with his cousin at the time but did not do so. The appellant said that the customers were Taliban, that they had refused to pay in full because his cousin was an Hazara, and in effect that his cousin was killed because he was an Hazara who pursued the payment. The cousin was not robbed of his valuable items, which led the appellant to believe that his cousin was not killed for money. It seems the murder was never solved and the murderers not apprehended. Again, the Reviewer accepted that this murder occurred. However, she rejected the suggestion that the killers were Taliban and treated the murder as a criminal act which was not motivated by any reason covered by the Refugee Convention.

28    The Reviewer’s findings in this regard are not part of the appeal. I set these facts out as they illustrate the harshness of the appellant’s life in Afghanistan and the difference between this and the life we expect in Australia. It is the life to which the appellant will be returned if his application to be treated as a refugee is unsuccessful. That is not to say that his appeal ought not be rejected if he cannot establish jurisdictional error, but rather that he is entitled to a proper consideration of his claims.

29    There can be no argument, and the Minister concedes, that a failure to deal with an integer of a claim for refugee status can constitute a jurisdictional error. The Minister’s case is that no jurisdictional error occurred as the Reviewer properly considered and rejected the Returnee from Iran Claim.

30    As is clear from the heading to paragraphs [40] to [42] of the reasons (see [15] above) the Reviewer grouped together the claims relating to political opinion of returnees, westernisation of returnees and returnees who were asylum seekers. The Minister argues that there is no relevant distinction to be made between an Afghan returnee from Iran and Afghans who have been “westernised” or who are failed asylum seekers and are then forced to return to Afghanistan. The Minister submits:

The appellant’s fear was from the Taliban and associated groups. The appellant’s submissions concentrated on the risk he claimed to face as a result of a perception he would be seen as pro-western and/or returned from a western country. It is also of significance in this context that the Reviewer rejected the appellant’s claim to fear [of] persecution from the Taliban for reasons of the imputation to him of an adverse or anti-Taliban political opinion.

31    I do not agree. The appellant has lived a large part of his life in Iran and claims that this experience sets him apart from those who have lived only in Afghanistan, and from those who have only been away from Afghanistan for a short period. The appellant claims that he stands out because of his lengthy period in Iran and that he faces a real risk of persecution as a result. The appellant’s submissions in the March 2011 RILC letter (as set out at [12] above) made clear his claim that he was culturally or socially changed by his long stay in an urban environment in Iran, and likely to stand out. The submissions in the June 2011 RILC letter as to the view of Professor Farooqi of Kabul University (set out at [13] above) indicated his claim that, amongst other things, the accent acquired by an Afghan who had lived for a long time in Iran was likely to expose such a person to degrading conduct.

32    This was not a claim by reference to “westernisation”, as it could not be contended that Iran is a western country. Nor was it a claim to having an imputed affiliation with certain political ideas or foreign interests. This integer of the Returnee from Iran Claim could stand alone, that is, even if the appellant made no claim by reference to his Shi’a religion or Hazara heritage, Australian asylum claim or any imputed political affiliation.

33    In my view the Reviewer’s consideration of the Returnee from Iran Claim in paragraph 40 of her reasons (set out at [15] above) did not deal with the integer of that claim relating to the cultural and social changes that the appellant underwent while in Iran, which made him identifiable and liable to be targeted for persecution. The Reviewer considered only that integer of the claim relating to imputed political ideology or western affiliations and sympathies.

34    The Reviewer’s consideration of the Returnee from Iran Claim in paragraph 41 of her reasons (also at [15] above) again did not deal with the integer of that claim relating to the cultural and social changes in the appellant while in Iran. The Reviewer considered only whether the appellant would be imputed with particular political opinions and western affiliations, or would be imputed to have wealth.

35    In paragraph 42 of her reasons (at [15] above) the Reviewer dealt only with the first two integers of the Returnee from Iran Claim. In relation to this paragraph of the reasons the learned Federal Magistrate focussed on the word “also”, and considered that the second sentence added findings to the paragraphs that precede it. I respectfully disagree. In my view the word “also” in the second sentence of the paragraph, when read in context, is a reiteration of the findings that it refers to. The first sentence of paragraph 42 is a finding with respect to the claim that the appellant would suffer persecution on the basis that he was a returnee from Australia or a returned asylum seeker. The second sentence is a reiteration of the Reviewer’s rejection in paragraph 40 of the integer of the appellant’s claim relating to imputed political opinion or sympathies and membership of particular postulated social groups.

36    Then the Minister argues that the appellant seeks to scrutinise the reasons in a way which is overly critical. In this regard the Minister relies on Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (“Wu Shan Liang”) where Brennan CJ, Toohey, McHugh and Gummow JJ explain at 271-272:

When the Full Court referred to “beneficial construction”, it sought to adopt an approach mandated by a long series of cases, the best exemplar of which is Collector of Customs v Pozzolanic. In that case, a Full Court of the Federal Court (Neaves, French and Cooper JJ) collected authorities for various propositions as to the practical restraints on judicial review. It was said that a court should not be “concerned with looseness in the language ... nor with unhappy phrasing” of the reasons of an administrative decision-maker. The Court continued: “The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error”.

These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.

37    Kirby J also explained in Wu Shan Liang at 291:

(1)    The reasons under challenge must be read as a whole. They must be considered fairly. It is erroneous to adopt a narrow approach, combing through the words of the decision-maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law.(Collector of Customs v Pozzolanic);

(2)    This admonition has particular application to the review of decisions which, by law, are committed to lay decision-makers, ie tribunals, administrators and others.(Brimbella Pty Ltd v Mosman municipal Council (1985) 79 LGERA 367 at 368; cf Collector of Customs v Pozzolanic [other citations omitted].

38    However, the rule that administrative decisions should be given a beneficial construction is not always an answer to a claim that a person making administrative decisions has failed to do so accordingly to law. I respectfully agree with the view expressed by Stone J in SZCBT v Minister for Immigration & Multicultural Affairs [2007] FCA 9 at [26], where her Honour said:

The phrase ‘beneficial construction’, as used in Wu Shan Liang has a specific meaning, and was certainly not intended to mean that any ambiguity in the Tribunal’s reasons be resolved in the Tribunal’s favour. Rather, the construction of the Tribunal’s reasons should be beneficial in the sense that the Tribunal’s reasons would not be over-zealously scrutinised, with an eye attuned to error. In this sense a ‘beneficial’ approach to the Tribunal’s reasons does not require this Court to assume that a vital issue was addressed when there is no evidence of this and, indeed, the general thrust of the Tribunal’s comments suggest that the issue was overlooked.

See also SZQJH v Minister for Immigration and Citizenship [2012] FCA 297 at [36] per Rares J; Minister for Immigration and Citizenship v MZYRI [2012] FCA 1107 at [37] per Jagot J.

39    The Returnee from Iran Claim had three important integers. A distinction was drawn between the claims with respect to “living abroad” and “westernisation”. The appellant’s submissions concentrated more on integers of the claim based on his ethnicity, his religion and imputed political opinions or sympathies rather than the social and cultural changes undergone by the appellant while in Iran. Even so, one of his contentions was that as a result of his spending 22 years of his life in urban Iran he was culturally and socially changed such that he was likely to stand out and face persecution. For example, Professor Farooqi’s view that cultural and social changes could be indicated by his accent and would expose him to degrading conduct should have been considered. This integer of the appellant's claim was not required to be accepted by the Reviewer, but it was required to be considered.

40    In NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 at [58] the Full Court per Black CJ, French and Selway JJ explained:

The review process is inquisitorial rather than adversarial. The Tribunal is required to deal with the case raised by the material or evidence before it: Chen v Minister for Immigration and Multicultural Affairs [2000] FCA 1901; (2000) 106 FCR 157 at [114] (Merkel J). There is authority for the proposition that the Tribunal is not to limit its determination to the “case” articulated by an applicant if evidence and material which it accepts raise a case not articulated: Paramananthan v Minister for Immigration and Multicultural Affairs [1998] FCA 1693; (1998) 94 FCR 28 at 63 (Merkel J); approved in Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247; (1999) 90 FCR 287 at 293 to 294 (Wilcox and Madgwick JJ). By way of example, if a claim of apprehended persecution is based upon membership of a particular social group the Tribunal may be required in its review function to consider a group definition open on the facts but not expressly advanced by the applicant:  Minister for Immigration and Multicultural Affairs v Sarrazola (No 2) [2001] FCA 263; (2001) 107 FCR 184 at 196 per Merkel J, Heerey and Sundberg JJ agreeing. It has been suggested that the unarticulated claim must be raised ‘squarely’ on the material available to the Tribunal before it has a statutory duty to consider it: SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 120; (2003) 199 ALR 265 at 273 [19] per Cooper J. The use of the adverb ‘squarely’ does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.

41    The relevant integer of the Returnee from Iran Claim was raised squarely on the material available to the Reviewer, and any even if not seen as raised squarely, must have been apparent on the face of the material. It was incumbent upon the Reviewer to consider and make a decision with respect to it. In Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 (“Applicant WAEE”) at [45] the Full Court, per French, Sackville and Hely JJ, explained:

If the Tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the [Reviewer] will have failed in the discharge of its duty.

42    I have kept in mind that the IMR is not a court and the Reviewer is operating in an environment which requires the expeditious determination of a large number of claims for refugee status. The inference that the Reviewer has failed to consider an issue is not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified. As the Full Court in Applicant WAEE said at [47]:

It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected.  Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

43    In the present case the reasons were otherwise comprehensive, but the Reviewer does not identify this integer of the Returnee from Iran Claim. In my view a finding on this integer is not subsumed in the other findings made. The Reviewer did not expressly deal with the claim that the appellant was culturally or socially changed by his 22 years living in urban Iran, and would therefore stand out so as to possibly be a target for persecution, and I infer that she did not consider it. In failing to deal with this claim the Reviewer did not accord the appellant procedural fairness and fell into jurisdictional error.

44    I order that the appeal be allowed and the Minister pay the appellant’s costs including the costs of the proceedings before the Federal Magistrates Court.

Associate:

Dated:    20 December 2012