FEDERAL COURT OF AUSTRALIA

WZAQU v Minister for Immigration and Citizenship [2013] FCA 327

THE COURT ORDERS THAT:

1.    The appeal is allowed.

2.    The decision of Federal Magistrate Emmett of 10 October 2012 is set aside.

3.    The decision of the Independent Protection Assessor of 28 February 2012 is set aside.

4.    The matter is remitted to the Independent Protection Assessor for determination in accordance with law.

5.    The First Respondent is to pay the costs of the Appellant.

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

REASONS FOR JUDGMENT

1    The Appellant claims to be a citizen of Iran.

2    He arrived in Australia on 19 or 20 February 2011. His arrival was unauthorised and he was detained pursuant to s 189(3) of the Migration Act 1958 (Cth) (“Migration Act”). He was deemed to be an “offshore entry person” within the meaning of that term as defined by s 5 and was thus unable to apply for a protection visa without the permission of the Minister pursuant to s 46A.

3    He nevertheless claimed to fear persecution if he was returned to Iran primarily by reason of his involvement in the distribution of copies of two letters. The first letter was on the letterhead of the “President’s Office” of the “Islamic Republic of Iran”. It was distributed by the Appellant in late 2005. The letter itself is undated. The letter set forth directions by the Iranian government to implement discriminatory measures against the ethnic Arab population of south western Iran. Riots and protests in response to this letter erupted in Ahwaz in April 2005 and demonstrations at the Appellant’s university occurred in October/November 2005. The Appellant claimed that he was arrested, beaten and interrogated for his part in distributing that letter. The second letter was on the letterhead of the “Intelligence Ministry of Islamic Republic of Iran”. That letter stated in part that after the unrest in Ahwaz in 2005 the gathering of more than 5 persons of the same ethnicity, particularly those of Arab ethnicity, was banned and that those who participated in such a gathering would be classified as a “suspicious individual”, and could be detained without official orders. Again, that second letter is also undated. The Appellant came into possession of the second letter in December 2010. He did not distribute that letter but gave a copy to a friend who in turn distributed it.

4    An initial entry processing interview carried out by an officer of the Department of Immigration and Citizenship in July 2011 concluded that the Appellant was not a person to whom Australia owed protection obligations. Thereafter an Independent Protection Assessment was undertaken. The Appellant was interviewed by the Independent Protection Assessor in November 2011. A transcript of that interview discloses that the Appellant raised for consideration for the first time additional bases upon which he feared persecution if returned to Iran. That Assessment also concluded, with reasons published in February 2012, that the Appellant should not be recognised as a person to whom Australia has protection obligations.

5    An application for judicial review was filed in the Federal Magistrates Court in March 2012. On 10 October 2012 that Court dismissed the application: WZAQU v Minister for Immigration and Citizenship [2012] FMCA 925.

6    A Notice of Appeal was filed in this Court on 31 October 2012. The Grounds of Appeal contend that the Federal Magistrate:

    erred in concluding that the Appellant’s claims of persecution arising by reason of his membership of the Ahwazian Community had been considered by the Independent Protection Assessor;

    erred in concluding that the Independent Protection Assessor considered “credible and relevant material” that the Appellant would suffer persecution by reason of his membership of the Ahwazian Community in Australia; and

    erred in concluding that the Appellant had been afforded procedural fairness in the Independent Protection Assessment process.

Before the Federal Magistrate a number of separate claims were advanced relevant to each of similarly expressed grounds of review. Only those the subject of the Notice of Appeal are now further pursued in this Court.

7    Before this Court both the Appellant and the Respondent Minister were represented by Counsel.

8    The appeal is to be allowed.

A FAILURE TO CONSIDER CLAIMS

9    The first two Grounds of Appeal can conveniently be dealt with together.

10    It may be accepted that a failure on the part of a decision-maker to deal with a clearly articulated argument relying upon established facts is a denial of natural justice which may found relief under s 75(v) of the Constitution: Dranichnikov v Minister for Immigration and Citizenship [2003] HCA 26 at [24] to [34], 77 ALJR 1088 at 1092-1093. See also: SZQFC v Minister for Immigration and Citizenship [2012] FCA 409 at [36], 126 ALD 530 at 535 per Yates J; Minister for Immigration and Citizenship v MZYRI [2012] FCA 1107 at [24] per Jagot J. More recently, in Plaintiff M61/2010E v The Commonwealth of Australia [2010] HCA 41, 243 CLR 319, French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ observed:

[90]    … failing to address one of the claimed bases for the plaintiff’s fear of persecution meant that the Minister was not informed about a matter that bore upon the question that the Minister had asked to be considered: whether Australia owed the plaintiff protection obligations. The failure to deal with the claim was a denial of procedural fairness.

Even where a claim falls short of being expressly raised, a decision-maker must consider every claim that clearly arises on the materials before it: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 at [58] to [61], 144 FCR 1 at 18-20 per Black CJ, French and Selway JJ. See also: SZRHH v Minister for Immigration and Citizenship [2012] FCA 1424 at [31] to [32] per Buchanan J; MZYOI v Minister for Immigration and Citizenship [2012] FCA 868 at [141] to [145], 130 ALD 256 at 278-279 per Dodds-Streeton J.

11    A failure on the part of a decision-maker to deal with a claim or part of a claim may also constitute jurisdictional error: Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802, 194 ALR 244. It was there concluded that the Refugee Review Tribunal had erred in constructively failing to deal with an ethnicity-based claim which had been raised in the initial visa application. Allsop J (as his Honour then was) concluded:

[42]    …The requirement to review the decision under s 414 of the Act requires the Tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration…

With reference to the particular facts there in issue, his Honour went on to further conclude:

[42]    …If there is a sur place claim made in addition to a claim based on conduct or experiences elsewhere both must be dealt with. If the sur place claim is, or is to be seen as, based on more than one foundation — that is, what has been done by way of political activity and also because of friendships made with other Karen people of arguably seriously subversive background, both bases of the claim must be dealt with. The Tribunal did not deal with the latter basis of the appellant's sur place claim based on imputed political opinion. It was not a failure merely to attend to evidence, even probative evidence, and by such route commit a factual error. It was a failure to deal with one part of the claim for asylum on the basis of his imputed political opinion. It is true that when called on at the hearing to articulate orally his fears he did not expressly identify his friendships as distinct from his activities in Australia. However, given the clarity of the expression of this fear in his application for review and the existence of objective material put forward by him to support it, I do not see this basis for the claim as having been abandoned. Conceptually, and in a common sense way, it was quite distinct from his claim based on his activities of the kind referred to earlier.

Spender J agreed with the reasons and orders proposed by Allsop J. Merkel J delivered separate reasons for also allowing the appeal.

12    In considering whether or not a claim or a part of a claim has been taken into account and resolved, it is “the reality, and not the appearances, which matters”: cf. Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 at 595 per Kirby J. A requirement, whether imposed by common law or by statute, to consider a claim involves a decision-maker to engage in “an active intellectual process directed at that representation or submission”: Tickner v Chapman (1995) 57 FCR 451 at 462 per Black CJ. See also: NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134, 147 FCR 51. Both Madgwick and Hill JJ endorsed the formulation of Black CJ in Tickner that “an active intellectual process” was required: [2005] FCAFC 134 at [46] per Hill J; see also [2005] FCAFC 134 at [212] per Madgwick J.

13    A conclusion that a decision-maker has failed to consider a claim or part of a claim is a conclusion to be reached by reference to the reasons for decision. It may be that some reservation should be exercised before such a conclusion is reached where the reasons that have been provided are “otherwise comprehensive”: WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184. Again in the context of reviewing a decision of the Refugee Review Tribunal, French, Sackville and Hely JJ there observed:

[47]    The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. 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.

These observations have since been applied in respect to a review undertaken by an Independent Merits Reviewer: SZQLS v Minister for Immigration and Citizenship [2012] FCA 1274 at [14] to [15] per Logan J.

14    The onus of making out an argument that the Independent Protection Assessor failed to consider the claims made and the material relied upon rests on the Appellant: cf. Minister for Immigration and Citizenship v SZGUR [2011] HCA 1 at [67], 241 CLR 594 at 616 per Gummow J.

CONSIDERATION OF THE CLAIMS MADE

15    That which divides the parties is whether the Independent Protection Assessor took into account those parts of the claims being made by the Appellant and as now identified in the Notice of Appeal.

16    The interview by the Independent Protection Assessor was conducted on 9 November 2011. The Assessor made her recommendation on 28 February 2012.

17    The claims the subject of the recommendation of the Independent Protection Assessor were claims initially formulated (in part) in a Statutory Declaration sworn by the now-Appellant on 22 May 2011 and a letter outlining submissions dated 17 October 2011. The claims there made related to the treatment of the now-Appellant whilst he was in Iran. Those parts of the claim now identified in the Notice of Appeal were formulated for the first time during the course of the November 2011 interview and concerned activities which occurred since he arrived in Australia. During the interview the Appellant claimed to fear persecution by reason of his membership of an entity called the Ahwazian Community in Australia Incorporated (the “Ahwazian Community”). That claim was that he feared persecution by reason of:

    his membership of the Ahwazian Community;

    the prospect that the Iranian authorities could potentially learn of his membership of the Ahwazian Community by reason of his “interaction” with the Community on the social media-network known as “Facebook”, the disclosure of names of members by the Ahwazian Community to the United Nations, and the potential disclosure of his name by other members of the Ahwazian Community who may be interrogated by the Iranian authorities; and

    the passing on of information obtained by the Appellant from the Ahwazian Community.

In support of those claims, the Appellant relied upon:

    the evidence he gave during the course of the November 2011 interview;

    a letter from the Ahwazian Community dated 10 September 2011;

    a letter outlining submissions from his lawyers addressed to the “Independent Reviewer” dated 17 October 2011; and

    a letter containing further submissions from his lawyers addressed to the “Independent Reviewer” dated 14 December 2011.

The additional claims raised for the first time during the November 2011 interview were but part of the factual issues canvassed during the course of the interview.

18    Perhaps not surprisingly the Independent Protection Assessor sought further information during the course of the interview. This information was provided by way of the letter dated 14 December 2011. That letter stated in part as follows:

AHWAZIAN COMMUNITY IN AUSTRALIA INC

This organisation is a registered corporation (ABN 20090855908) based in South Australia and founded in 2009. The Ahwazian Community in Australia organises community and cultural events for members of the Ahwazian community in Australia, including celebrations for Ahwazian Remembrance Day, Adha-Fitr and Eid al-Jalili Eid al, commemorating important holidays such as Jalili Eid al-Fitr and Eid al-Adha, and participating in Australia Day ceremonies.

In a submission made to the Unrepresented Peoples and Nations Organisation (UNPO) regarding Arab-Iranian asylum seekers in Australia, information with respect to the identity of Arab-Iranian asylum seekers in Australia was attached.

I attach the names and Australian identification numbers of the Ahwazi Arabs for your information, but ask that they are treated with the utmost confidentiality out of concern for the men’s safety. If you require further information, please don’t hesitate to contact me. I will be happy to provide you with whatever case details you may require.

This group also has a Facebook page on which the images of members and those participating in community and cultural events are published. [The Appellant] has interacted with this group using Facebook.

19    However the obligation imposed upon the Independent Protection Assessor be expressed, Counsel for the Respondent Minister did not put in issue the need for the Independent Protection Assessor to consider the claims made and the materials relied upon. The submission on behalf of the Respondent Minister was that all claims and materials advanced for consideration by the Appellant were in fact considered.

20    The consideration of those claims and materials was said to be evident from:

    the reasons for the recommendation of the Independent Protection Assessor.

If necessary, Counsel for the Respondent Minister also submitted that those reasons were properly to be construed by reference to:

    the transcript of the interview.

21    Contrary to the submission of the Respondent Minister, it is respectfully considered that the reasons of the Independent Protection Assessor do not disclose a consideration of the claims made and the materials relied upon by the now-Appellant.

22    The entirety of any consideration given by the Independent Protection Assessor to the claims made by the now-Appellant and the materials relied upon are to be found in those parts of the reasons which address the “Claims and Evidence” and the “Findings and Reasons”. When considering that which occurred during the interview, the Independent Protection Assessor wrote (without alteration):

40.    I was handed a letter dated 10 September 2011 from the Ahwazian Community in Australia. The letter acknowledges that the claimant is one of the Ahwazian Arabs who was persecuted by the Iranian government as a result of cultural acts he had when in Ahwaz and was forced to leave Iran to protect himself.

41.    Following the interview I received further submissions from the claimant’s agent together with English translation of the two letters under discussion. The written submissions contained some information regarding the organisation known as the Ahwazian Community in Australia Inc which was founded in 2009 and is based in South Australia. A reference to a submission made by the organisation to Ahwaz representative to Louise Arbour, United Nations High Commissioner for Human Rights regarding Arab-Iranian asylum seekers in Australia was included. (http://www.unpo.org/article/1436). The letter included the following statement in the penultimate paragraph:

I attach the names and Australian Identification numbers of the Ahwazi Arabs for your information, but ask that they are treated with the utmost confidentiality out concern for the men’s safety. If you require further information, please don’t hesitate to contact me. I will be happy to provide you with whatever case details you may require.

42.    As the letter is dated 7 November 2004 the claimant’s names would not have been included in this list of names and identification numbers. Also provided was internet reference for the Ahwazian Community facebook and advice that the claimant had interacted with this group using facebook.

When subsequently considering the “Findings and Reasons”, the Independent Protection Assessor concluded:

98.    Nor do I find that the claimant faces a real chance of persecution for having become a member of the Ahwazian Community whilst in Australia. The letter dated 10 September 2011 from the Ahwazian Community in Australia acknowledges that the claimant is one of the Ahwazian Arabs who was persecuted by the Iranian government “as a result of cultural acts” he had when in Ahwaz and was forced to leave Iran to protect himself. The letter simply states what the Community has been told by the claimant and is not evidence of, or an independent verification of his claims.

99.    Having rejected all of the claims of persecution for the above stated reasons and found that the claimant does not have a well founded fear of persecution for a convention reason or faces a real chance of persecution on return to Iran in the reasonably foreseeable future, I accordingly find that the claimant, [WZAQU], does not meet the criterion for a protection visa set out in s.36(2) of the Migration Act 1958.

23    Paragraphs [40] and [41], it is submitted on behalf of the Minister, expose a consideration of the letters dated 10 September 2011 and 14 December 2011. The reference in paragraph [42] to the “letter dated 7 November 2004” is a reference to the letter cited in the 14 December 2011 letter – but only by way of a “web” citation. It is evident, so the Respondent Minister contends, that the Independent Protection Assessor independently accessed that “web” citation and thereby obtained the date of the letter, that date only being available by that means. All of this, submits the Respondent Minister, exposes a detailed consideration of the claims and the materials relied upon. The letter dated 17 October 2011, it is further submitted, is not directed to the claims arising by reason of the now-Appellant’s membership of the Ahwazian Community.

24    The difficulty for the Respondent Minister, however, arises not by reason of the Independent Protection Assessor not being aware of the claims being made and the material relied upon; the difficulty arises by reason of the manner in which those claims and materials were addressed and resolved.

25    That resolution is to be found – if at all – in paragraph [98] of the reasons of the Independent Protection Assessor.

26    But the correct interpretation of that paragraph is not self-evident. The meaning to be ascribed to the first sentence, in particular, is far from clear. On one view, and a view at one stage being advanced on behalf of the Respondent Minister, paragraph [98] is a rejection of the claim being made by the now-Appellant that he was a member of the Ahwazian Community. The subsequent reference to the contents of the 10 September 2011 letter and the fact that that letter “is not evidence of, or an independent verification of his claims” may support an interpretation which confines the focus of paragraph [98] to the fact of membership of the Ahwazian Community. But that interpretation does not sit comfortably with the conclusion that the Appellant does not face “a real chance of persecution for having become a member of the Ahwazian Community”. That conclusion seems to assume that the Appellant is indeed a member of that Community.

27    If paragraph [98] is to be construed as the Independent Protection Assessor rejecting the Appellant’s claim to membership of the Ahwazian Community, all of the claims dependent upon membership would not thereafter arise for consideration. If it were found that he was not a member of the Ahwazian Community, it would become unnecessary to resolve claims as to the means whereby the Iranian authorities could become aware of membership. But that would possibly still leave unresolved the claim that the Appellant feared persecution by reason of having obtained information from the Ahwazian Community and having passed on that information to others.

28    On another approach to the construction of paragraph [98], the Respondent Minister contends that the first sentence is on any view a rejection of the claim to persecution.

29    The fundamental and fatal difficulty exposed by paragraphs [98] and [99], with respect, is that it remains unclear what claims or what parts of the claims being advanced by the Appellant were being resolved. Reasons for the recommendation of the Independent Protection Assessor, it may be accepted, should not be construed in any overly critical manner: Minister for Immigration and Ethnic Affairs v Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. Ambiguity in reasons provided may not be sufficient to expose legal error. But the cursory manner in which the Independent Protection Assessor summarily dismissed the claims being made, together with a lack of certainty as to what was in fact being resolved, leaves inescapable the conclusion that no proper and genuine consideration was given to the claims and materials sought to be relied upon.

30    Whether or not the transcript of the interview may be taken into account when construing the reasons for the recommendation of the Independent Protection Assessor may be left unresolved. A transcript of proceedings may unquestionably be relied upon to prove that claims were in fact advanced and to prove the nature and ambit of those claims. Reference to the transcript of November 2011 could thus be made to give content to the claims advanced by the Appellant, although the nature of those claims is in any event largely made apparent from paragraphs [40] to [42] of the reasons for decision. But considerable reservation is expressed as to whether reference to the transcript may also be made for the purpose of construing what was intended to be conveyed by paragraph [98]. It has been concluded by the High Court that the transcript of a proceeding forms no part of the “record” when seeking certiorari to correct error of law on the face of the record: Craig v South Australia (1995) 184 CLR 163 at 180-181 per Brennan, Deane, Toohey, Gaudron and McHugh JJ. Whether the same considerations which led to that conclusion are apposite to considering whether a transcript can be relied upon to construe reasons for an administrative decision can also be left unresolved. But that which is common to both is a concern as to whether recourse to a transcript would only encourage parties seeking to impugn or support (or supplement) a statement of reasons by scouring the transcript with a view to minutely discerning differences between the transcript and reasons. To do so may only encourage impermissible reliance upon thoughts or queries raised during the course of a hearing which are only later abandoned at that stage when reasons are being prepared. Even if recourse is made to the transcript in the present proceeding, that transcript provides no assistance – not surprisingly - in construing what was intended to be conveyed by paragraph [98].

31    Also left unresolved is whether or not any reliance can be placed upon the fact that the interview was conduct at the beginning of November 2011 and the reasons of the Assessor not being provided until late February 2012. Delay in the making of a decision may constitute a denial of procedural fairness and thus involve jurisdictional error: cf. NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77, 228 CLR 470; Minister for Immigration and Citizenship v MZYNN [2012] FCA 1177 at [33] per Gray J. It may be that in some cases the close proximity in time between a “hearing” and “judgment” may assist a conclusion that all that was said during the course of the “hearing” was at the forefront of the mind of a decision-maker. Conversely, a lapse of time between “hearing” and “judgment” may invite inquiry as to whether all that transpired during the “hearing” was readily recalled and considered when reaching a conclusion. Perhaps the lapse of time may matter less where there is a transcript that may assist when preparing reasons. As findings of credit seem to be largely inevitable in assessing claims to refugee status, it would appear to be self-evidently preferable that reasons for decision are written as close as possible to a hearing so as to preserve the benefit of any personal “impressions” and assessments formed by a decision-maker during an interview. A lapse of time between an interview and reasons for decision may assist a conclusion that an Independent Protection Assessor is placed in little better a position than a reviewing court when adverse credit findings are founded upon mere differences in accounts being given by a claimant of facts occurring some years previously. Perhaps different considerations are relevant when assessing any delay in the provision of reasons for decision by a non-lawyer than (for example) a judicial officer: cf. SZFNX v Minister for Immigration and Citizenship [2010] FCA 562 at [151] to [152], 116 ALD 85 at 112 per Barker J. But all such matters can presently be left to one side. Although the lapse of time between November 2011 and February 2012 may not be desirable, there is no reason to conclude that that lapse of time itself adversely affected the reasons provided in the present case.

32    On any approach, both Grounds 1 and 2 of the Notice of Appeal should be accepted. The Appellant has discharged the onus of establishing that there was a failure on the part of the Independent Protection Assessor to consider the claims made during the November 2011 interview and a failure to consider the materials relied upon. Although those materials were referred to in the reasons for decision of the Assessor, there was a failure to engage in “an active intellectual process” in resolving the issues raised by those materials and the claims made.

33    The Federal Magistrate, it is respectfully concluded, erred in concluding that the claims and materials advanced and relied upon during the course of the November 2011 interview had been considered and resolved.

PROCEDURAL FAIRNESS

34    Given the conclusion with respect to Grounds 1 and 2 as set forth in the Notice of Appeal, it is unnecessary to resolve the final Ground. Some brief observations may nevertheless be prudent.

35    This final Ground of Appeal is directed to an alleged denial of procedural fairness.

36    The Appellant’s claims that the requirements of procedural fairness were not satisfied can conveniently be summarised as arising by reason of:

    the failure on the part of the Independent Protection Assessor to disclose her reservations as to the authenticity of the second letter;

    the failure on the part of the Independent Protection Assessor to disclose the fact that she had undertaken her own searches in respect to the distribution of the second letter; and

    the failure on the part of the Independent Protection Assessor to disclose her reservations as to whether the now-Appellant was indeed arrested following the distribution of the first letter and the absence of evidence as to the arrest of other students.

37    The facts relevant to the first two aspects of the alleged denial of procedural fairness are to be found in the reasons of the Assessor. After having addressed the facts surrounding the distribution of the first letter and the unlikelihood of the Appellant engaging in “political activity on his return to Iran”, the Assessor continued on to address the second letter as follows:

[92]    …. I find that the claimant’s fear of persecution based on a suspicion that his friend … had informed the authorities that the claimant had handed him the 2007 letter is far fetched, remote and unfounded. I consider that it is most unlikely that the claimant would be identified as having passed this letter on for distribution. In any event I have serious doubts as to the authenticity of this letter and whether it was distributed as claimed. On the claimant’s own evidence his reasons for leaving Iran were multiple and not solely based on his fear of persecution at the hands of the Basij or Etelat.

The independent searches made by the Assessor and her conclusions following the results of those searches were expressed as follows:

88.    The claimant’s evidence as to the contents of the second letter largely accords with the translated copy of the letter apart from his statement that authority was given to shoot those suspected of demonstrating. If as the claimant claims, this letter was accessible on the internet, I do not consider the claimant’s knowledge of its contents to be of consequence. The translated copy of the letter is stated to follow recommendations by the Intelligence Ministry about ethnic and security issues prevention in Khuzestan province dated 06.08.2007. The subject directives were stated to have been ratified on 12.08.2007. Unlike the details of the first letter, whilst disputed by the government authorities, its publication and the unrest that followed were widely reported. I have however been unable to find any references to the publication or distribution of the claimed second letter despite its date of August 2007. Nor are there any reports of any government policies or actions taken regarding these issues, for instance restricting gatherings of people of the same ethnicity, particularly Arabs, to five persons. These stated policies appear to be specifically directed towards the Arab people and one would have expected significant unrest and protests as occurred in April 2005 if the letter was available on the internet and/or such policies had been enacted.

38    The facts relevant to the final argument as to a denial of procedural fairness are again to be found in the reasons of the Assessor. Her conclusions in respect to the Appellant’s claim to fear persecution by reason of his past arrest following the distribution of the first letter were previously addressed by the Assessor as follows:

82.    However I am not satisfied that he was subsequently arrested by the Basij and detained in the manner described. His description of the arrest and detention was lacking in detail and unconvincing. He maintained that he was arrested at his home some 2-3 days after distributing the letter but not told the reason for the arrest. His explanation as to why he was suspected of distributing the letter was that probably one of his trusted friends had informed the authorities, but he did not give any other detail. I would have presumed that the claimant would have subsequently become aware of the arrests of other students in relation to the letter’s distribution if this had been the case. He provided no other evidence as to this.

39    Counsel on behalf of the Respondent Minister did not dispute that the Assessor was obliged to act in a procedurally fair manner. But, he submitted, the Assessor had done so.

40    With respect to the “serious doubts” as to the authenticity of the second letter, on behalf of the Minister it was submitted that the circumstances surrounding the distribution of any such letter had long been put in issue. When addressing the credibility of the Appellant, the officer of the Department of Immigration and Citizenship who first addressed the claims then being advanced said in her reasons for decision in July 2011:

E. Finding of fact (credibility)

[The Appellant] claims that he is being discriminated against because he is an Iranian of Arabic ethnicity. The human rights situation of Arabs in Iran is well documented.

[The Appellant] also claims after distributing a secret government letter in 2005, he was detained for three days and continually harassed after he was released. Country information describes community unrest after this letter was made publicly available in 2005.

[The Appellant] claims that in January 2011 his friend was arrested for distributing another secret government letter that the claimant gave to him; the claimant believes that the authorities will trace the letter back to him. The validity of this claim is contentious.

In [the Appellant’s] statement of claims (folio 75.), the claimant has said that he got this letter from a neighbour (whom he named in his statement), in his POE interview he said that he got the letter from the internet. The copy of the letter the claimant is referring (folio 11.) does not look like it has been accessed on the internet by the claimant, but cut and copied multiple times to the point that it is barely legible, in addition, it has an accessed date on it of 12/8/2007. I accept that the claimant may have misunderstood my question and meant that the letter was originally published on the internet, but he actually got a copy of it from his neighbour.

As stated above, it appears that the letter was initially accessed in 2007, in which case had been publicly available for 4 years prior to the claimant receiving it. This letter (allegedly written 2007) supposedly states (in part) that the government was imposing a policy to ban more than 5 people of a particular ethnicity from gathering. I was unable to find any evidence that there was public knowledge of government policy that prevented gatherings of more than 5 people of any ethnicity. If the government wanted to prevent gatherings of more than five people I would have expected them to make it public, also that the policy would have been discussed in reputable reports alongside other discriminatory conduct that the Iranian government has imposed. While it is well documented that there was unrest after publication of the letter that the claimant distributed in 2005, no recent references addressing this unrest refer to any other secret government letter that indicated a policy of discrimination against Arabs.

Had it been necessary to resolve this claim, the Minister’s submission would most probably have been accepted. Having been put on notice that the “validity” of the claim in respect to the distribution of the second letter was in doubt and put on notice that there are “no recent references” to “unrest” arising by reason of any such distribution, the manner in which the claim was thereafter advanced before the Independent Protection Assessor was a matter largely for the Appellant.

41    Had it been necessary to resolve the Appellant’s submission in respect to paragraph [82], it would have most probably been concluded that that paragraph disclosed nothing more than the thought processes of the Assessor and need not be foreshadowed to the Appellant: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 at [48], 228 CLR 152 at 166.

42    Had it been necessary to resolve the final Ground of Appeal it would most probably have been rejected.

CONCLUSIONS

43    Grounds 1 and 2 of the Notice of Appeal prevail. The appeal should thus be allowed.

44    It is unnecessary to express a concluded view as to the final Ground of the Notice of Appeal.

45    There is no reason why the First Respondent should not pay the costs of the Appellant. The bulk of the time consumed during the course of submissions was directed to the first two Grounds of Appeal. Comparatively little time was consumed in addressing the final Ground of Appeal. In such circumstances it is inappropriate to make any order that the Appellant be entitled to only part of his costs.

THE ORDERS OF THE COURT ARE:

1.    The appeal is allowed.

2.    The decision of Federal Magistrate Emmett of 10 October 2012 is set aside.

3.    The decision of the Independent Protection Assessor of 28 February 2012 is set aside.

4.    The matter is remitted to the Independent Protection Assessor for determination in accordance with law.

5.    The First Respondent is to pay the costs of the Appellant.

Associate:

Dated:    12 April 2013