FEDERAL COURT OF AUSTRALIA

SZRLQ v Minister for Immigration and Citizenship [2013] FCA 566

THE COURT ORDERS THAT:

1.    The appeal be dismissed, with costs.

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

REASONS FOR JUDGMENT

1    This is an appeal from a judgment of the Federal Magistrates Court of Australia (the Federal Magistrates Court) (now the Federal Circuit Court of Australia) given on 4 December 2012 in which the appellant’s application for judicial review of a recommendation made by the second respondent (in his capacity as an Independent Protection Assessment Reviewer) was dismissed. The recommendation made by the second respondent was that the appellant not be recognised as a person to whom Australia has protection obligations under the 1951 Convention Relating to the Status of Refugees, as amended by the 1967 Protocol Relating to the Status of Refugees (together, the Convention).

background

General

2    On 31 January 2010, the appellant arrived in Australia as an “offshore entry person”: see the definition in s 5 of the Migration Act 1958 (Cth) (the Act).

3    On 31 March 2010, he requested a Refugee Status Assessment (the RSA) by the Department of Immigration and Citizenship. On 10 May 2010, the appellant was informed that it had been determined that he was not a refugee as defined in the Convention. On 26 May 2010, the appellant requested an independent merits review of the RSA. This review was undertaken. On 25 January 2011, the independent reviewer recommended that the appellant not be recognised as a person to whom Australia has protection obligations under the Convention. On 22 July 2011, the Federal Magistrates Court found that this recommendation was affected by an error of law: SZPZI v Minister for Immigration & Anor [2011] FMCA 530. In consequence, the appellant’s application for independent merits review of the RSA was assigned to another reviewer for assessment – the second respondent.

The appellant’s claims

4    The appellant claims to be a stateless and undocumented Faili Kurd who had been living in Iran. In an attachment to his request for the RSA, the appellant made a number of claims, including the following:

•    He is a Faili Kurd with no citizenship, no entitlement to citizenship and no right of residence in any country.

•    He was born in a village in Iran and had lived there until 14 January 2010, when he left that country. He is 22 years of age and single.

•    He had been told by his mother that she and the appellant’s father were born in Iraq and came to Iran in about 1980. They had been expelled by the Iraqi government because they had no identity papers and were Faili Kurds.

•    When the appellant’s parents arrived in Iran, they were issued with “green cards”. When the appellant’s father attempted to renew his green card, “the government” refused because he was a Faili Kurd and “didn’t belong in Iran”. His father was told to return to Iraq, but remained in Iran.

•    The appellant’s father died in 2000, when the appellant was 12 years old.

•    He was taught to read and write by a volunteer in the village where he lived. He “studied” for approximately three years. He worked as a farmhand in his village until he was 16 years of age.

•    He later moved to another place in Iran where he was employed by a family friend in a large grocery store. He worked and slept in the shop and returned to his home village for weekends. His employer was a Kurdish Iranian who treated him well and paid him well.

•    He had not applied for a “white card” because his father “had been refused renewal of his” and “I was scared that they would arrest and deport me if I approached them”.

5    The appellant expressed the following fears and concerns:

•    He had been stopped and beaten by the Basij regularly, at least three to four times a month during the last year, “because I don’t have any ID, I never been told that I could legalise my situation”.

•    The Basij “belong to the government, they are everywhere, they have beaten me up most of my life because I am a Faili Kurd, why would this change now, I am afraid of the Basij more than anything else, I didn’t apply for a white card and because of this fear, I will not apply for citizenship in Iran, should this law in fact exist”.

•    “I don’t know anyone Faili Kurd nor have I heard of any Faili Kurd whom had been granted citizenship in Iran”.

•    “I am aware that the Basij arrest and punish anyone caught with no ID however the punishments they gave me were 10 times more severe just because I am a Faili Kurd”.

•    “Last I was stopped by the Basij was in December 2009, 2 weeks before departing, I was hitchhiking … when the Basij came on a motorbike and asked for my documents; unable to produce those, they put me on their motorbike and took me to a mosque which had a room belonging to them, they kept 3 or 4 hours and beat me up with batons, kicked and punched me, they searched me and took my money and [threw] me out”.

•    “My nose was broken during that incident and I had blood all over, I couldn’t go to hospital without documents nor did I have any money to see a private doctor, my nose is now no longer straight”.

•    “I left Iran with Iraqi passport which had my photograph but not my name, I also had a visa to Iran”.

•    “I cannot go to Iraq because I am not Iraqi and I have no documents, my parents were born in Iraq but were not Iraqis they also had no documents and were unlawful there, this and the fact that they were Faili Kurds was the reason for expelling them from Iraq”.

•    “The government through the Basij because I am unlawful, have no documents and because I am a Faili Kurd, I cannot trust them because of what they have been doing and continuing to do to the Faili Kurds”.

The protest at Villawood IDC

6    The appellant engaged in a protest at Villawood IDC from 20 to 29 April 2011. On 26 October 2011, the second respondent received a copy of a letter dated 22 August 2011 from a UNHCR Senior Protection Officer which raised concerns about the appellant’s and another claimant’s involvement in the protest. The letter recommended that the appellant be permitted to make a sur place claim.

7    The second respondent made the following finding (at [90]):

[The appellant’s] name (full name and abbreviated and/or misspelt variants), together with his age and ethnicity, appeared in numerous on-line sources that identify him as one of the rooftop protestors at Villawood IDC, during April 2011. These include on-line articles from the Refugee Action Coalition, World Socialist Web Site, SBS News and Nine News, in most cases describing [the appellant] as a ‘stateless Kurd’. UNHCR claims that [the appellant’s] image was also published, without references. The on-line photographs of the rooftop protestors that I have found are for the main part indistinct, and do not appear to identify [the appellant] by name.

The progress of the review

8    The second respondent conducted an interview with the appellant on 21 September 2011. The appellant’s migration agent was present. The interview was conducted through an interpreter. The second respondent gave a detailed account of this interview in his statement of reasons dated 28 February 2012. This interview was adjourned after the appellant (in the second respondent’s words) “indicated that he felt flat and frustrated, and was unable to continue the discussion”.

9    The second respondent recorded his observations of the appellant at this interview in [98] of his reasons, as follows:

In relation to my observations of [the appellant] at interview on 21 September 2011: -

•    [The appellant] gave cogent, logical evidence during his discussion with me at the first interview. He responded lucidly and relevantly to many questions, although, in response to some more challenging questions, he gave vague answers and, particularly towards the latter part of the interview, voiced frustration.

•    At the start of the interview, he reassured me that he was feeling okay, and was willing to proceed with the interview. I observed nothing to suggest that he lacked the mental capacity to participate in an interview, by understanding and responding to questions. I invited him and the agent to alert me to any concerns during the interview, including any emotional issues. Neither did so until late in the interview, when [the appellant] appeared to become agitated and upset, and signalled that he felt unable to continue, in part because he thought that his prospects were poor. I allowed for adjournments during the interview, and on learning that [the appellant] no longer wished to continue, I gave him and his agent ample opportunity to consult. I impressed on them the value in continuing the interview, as this gave him the best chance of presenting his claims, and invited them to propose how the review should proceed…

10    A resumed interview was scheduled and adjourned several times, to allow time for the appellant and his agent to make further submissions, particularly on medical matters. On 4 November 2011, the date for a resumed interview was set for 11 November 2011.

11    On 7 November 2011, the agent made a number of submissions. It is sufficient to record for present purposes that, amongst other things, the appellant’s agent conveyed his instructions that, following the interview on 21 September 2011, the appellant’s “state of mental health has further deteriorated to such an extent that he is unable to understand and respond rationally to questions being asked of him”. The appellant’s agent stated that, under the circumstances, the appellant would not be able to appear and present further evidence before the second respondent. The appellant’s agent referred to a submission of 19 September 2011 and said:

Those submissions relevantly identify the determinative issue for this Review. We continue to rely on those submissions and respectfully submit that it would be open to a Reviewer to make a finding that:

•    [The appellant] has a well-founded fear of persecution because of his ‘nationality’, ‘race’ and his ‘membership of a particular social group’ constituted by ‘unregistered or undocumented people living in Iran’.

12    The agent’s submission of 7 November 2011 included a report from the appellant’s treating psychologist, Ms Jolan. The report – said to have been provided to the appellant’s agent on 26 October 2011 – noted that Ms Jolan had had 12 consultations with the appellant in the period 25 March 2011 to 19 September 2011. The report contained the following assessment of the appellant’s cognitive functioning:

Overall combination of assessment and clinical observation confirms that [the appellant’s] mental processes are significantly impaired and distorted. He is suffering from paranoia thoughts and if placed under enormous amount of distress he can experience dissociation. There are many triggers that can negatively upset [the appellant’s] cognitive functioning and decision making processes. For example exposure to cues that act as a reminder of the traumatic experience such as pressure to recall past events during interviews and court related matters can cause [the appellant] high levels of distress. In addition it is highly likely that [the appellant’s] anger is activated if he is asked too many questions. This is often evident during the psychological sessions when [the appellant] walks away from counseling possibly either due to inability to understand and respond rationally to the questions asked from those he perceives as authority or it can be avoidance behaviour to prevent reactivation of past traumatic memories and the associated strong negative emotions. Therefore it is highly recommended that [the appellant] is not placed in situation such as interviews or court trial. Attendance of such can, possibly, not only have a detrimental effect on his mental health but it can also negatively influence his visa status. For instance [the appellant’s] inability to exert control over his executive functioning can negatively influence the responses he provides during any interview and this can negatively impact the outcome and hence his eligibility to obtain a visa. Overall it is evident that [the appellant] is currently unfit to stand any types of trial.

[As in original]

13    This passage was quoted in the second respondent’s reasons. The second respondent noted that Ms Jolan’s report appeared to focus on two concerns: first, the appellant’s mental capacity to understand questions and give evidence at an interview; secondly, the detrimental effect on the appellant of being asked to recall and speak about his experiences in Iran.

14    During the course of argument on this appeal, counsel for the appellant also directed attention to another report by Ms Jolan dated 15 September 2011. Amongst other things, that report said:

… Based on this information it is important to note that during the organised interview on the 21st of September 2011, it is highly likely that [the appellant] will not be able to understand and respond rationally to the questions asked. This can negatively influence outcome of the interview and his eligibility to obtain a visa.

15    It is plain from the statement of reasons that the second respondent considered that, based on his presentation on 21 September 2011, the appellant was able to understand and respond rationally to the questions he was asked. Indeed, the appellant’s presentation was such that the second respondent urged on him the desirability of continuing the interview on that date. The second respondent only adjourned the interview because of the appellant’s request that he do so. In this connection, I observe that the appellant’s interview with the second respondent occurred two days after Ms Jolan’s last consultation with the appellant on 19 September 2011.

16    In light of Ms Jolan’s report provided on 26 October 2011, the second respondent sought an update from staff of International Health and Mental Services Pty Ltd (IHMS) present at Villawood IDC. On 10 November 2011, IHMS advised that they were not aware of any substantial mental or physical impediment that would prevent the appellant from attending an interview. The second respondent summarised the advice from IHMS as follows:

They considered that [the appellant] was capable of giving informed consent, had the required mental capacity to partake and had good insight into his immigration pathway. They were not aware of any significant medical impairment to [the appellant’s] participation in an interview.

17    The second respondent advised the appellant and his agent accordingly, and said that he would be present at Villawood IDC to conduct the resumed interview on 11 November 2011, should the appellant wish to attend. However, on the morning of 11 November 2011, the second respondent received confirmation from the appellant and his agent that the appellant did not wish to attend the interview.

18    The second respondent then caused a communication to be sent to the appellant’s agent on 24 November 2011, inviting further submissions to be made in light of the fact that the appellant had indicated that he would not attend the resumed interview:

You are invited to make any further written submissions. You may wish to address the following.

•    [The appellant’s] intended future activities if he were to return to Iran, including the place to which he would return – whether this is Ilam City (where he worked for 5 years, but no longer appears to have work or accommodation) or his home village of Milemaran, where his mother currently lives. You may consider specifying any claims specific to either place.

•    Clarification of [the appellant’s] distinction between ‘Faili Kurds’ and ‘Iranian Kurds’, given some country information indicating that most residents of Ilam City are Faili Kurds. (It may be that [the appellant] refers to Faili Kurds as those who are undocumented and stateless, whereas the other Faili Kurd[s] are Iranian nationals and hence called ‘Iranian Kurds’.)

•    What happened after the alleged serious beating, including the period of time from the beating until his departure from Iran ([the appellant] initially put this at 2 weeks, but later suggested that it was a longer period) and his movements or other activities

•    The consequences of the alleged serious beating – including his medical condition, physical appearance (eg. the broken nose) and claimed lack of funds to pay for medical treatment

•    The funding of his travel from Iran to Australia – including the source(s) of money, how he calculated the required sum, whether he calculated this correctly (or had remaining funds left over) and any ongoing debts

•    [The appellant’s] travel to Tehran, his orientation and activities there

•    Any other claims or evidence relating to [the appellant’s] return to Iran, for instance as a failed asylum seeker

•    Any claims or evidence arising from [the appellant’s] involvement in the Villawood April 2011 rooftop protests (including the effect of s.91R(3)), following on from the UNHCR correspondence that raises this issue

•    Any other claims or evidence you wish the reviewer to consider

•    Any further medical material that you wish the reviewer to consider when assessing this matter

19    The communication included an attachment in which additional material was drawn to the appellant’s attention. In that attachment, the second respondent said that he would consider any further submissions that the appellant might wish to make in respect of those matters. The additional material included information about the Villawood IDC protest. In that connection, the second respondent said:

You have not raised any claims or evidence about your involvement in the Villawood rooftop protests so far. The reviewer has received a UNHCR submission to the Department that deals in part with your case, and shared these with you. Various internet reports indicate that:

•    [The appellant’s] image appears in press articles, generally from a distance and indistinct

•    [The appellant] (and his friends) communicated the reasons for their protests

•    [The appellant’s] name (sometimes partial, and usually with the same spelling mistake repeated) and age appear in several reports

•    The reports do not indicate the source of information about [the appellant’s] name and age, though some state that he (and his friends) used mobile telephones while on the roof, with friends below in the building recharging the batteries for them.

This information is relevant because the reviewer may not be satisfied that [the appellant’s] conduct in Australia falls outside the scope of s.91R(3), and he may therefore be required to disregard it when assessing whether [the appellant] has a well-founded fear of persecution. He may find, even if satisfied that some or all of the conduct does fall outside the scope of s.91R(3), that it does not give rise to a well-founded fear of Convention-related persecution (for instance, if he were to consider that the image is indistinct, and if he were to disregard the publication of his name pursuant to s.91R(3) of the Act).

The above information is relevant also because, depending on the reviewer’s findings of fact, it may indicate that [the appellant] does not have a well-founded fear [of] persecution for a Convention reason, and that the reviewer should therefore make a negative recommendation to the Minister.

Please note: The reviewer will consider all the information previously submitted, as well as the above information and any further material you provide. The above is information that the reviewer considers credible, and potentially relevant and significant to [the appellant’s] case, depending of course on his findings of facts.

20    In the attachment to his communication, the second respondent provided a number of links to the internet reports to which he had referred generally. As the passages quoted above make clear, in both the communication and the attachment, the second respondent drew attention to the possibility that the appellant’s participation in the protest might be conduct falling within the scope of s 91R(3) of the Act. That subsection provides:

For the purposes of the application of this Act and the regulations to a particular person:

(a)    in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;

disregard any conduct engaged in by the person in Australia unless:

(b)    the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.

21     In the attachment, the second respondent drew attention to reports that suggested that the protestors, including the appellant, had facilitated publicity about the protest by maintaining contact with supporters outside the centre using mobile telephones. As is apparent, he also drew attention in the attachment to the fact that the reports included the reasons given by the appellant and the other protesters for engaging in the protest. I will return to this last-mentioned matter when dealing with the appellant’s first ground of appeal.

22    The appellant’s agent responded to this communication by letter dated 6 December 2011. In his statement of reasons, the second respondent summarised this response in the following terms:

    As I flagged in my letter of 24 November 2011, there are a number of matters on which I have insufficient information to be satisfied that [the appellant] is a stateless, undocumented Faili Kurd who has in the past experienced serious harm at the hands of the Basij, and is at risk of future harm. I had hoped to pursue these at a resumed interview. Although the letter of 6 December 2011 addresses each of these issues, for the main part it simply restates earlier positions and presents various legal and procedural arguments, rather than provide further information.

The second respondent’s findings

23    It will be necessary for me to refer to some specific findings made by the second respondent. I shall do so in the context of considering the appellant’s submissions on appeal. At this juncture, it is sufficient for me to record the following findings. First, at [116] and [117] of his reasons, the second respondent found:

On the available material, I am not satisfied that [the appellant] is a stateless, undocumented Faili Kurd whose family originates from Iraq, who originally had green certificates, but who were denied (either directly or as a result of verbal abuse or intimidation) registration and documents. I am therefore also not satisfied that he has suffered any disadvantage or harm as a result of this status, including that he was unable to attend a regular school in Milemaran; that he had very limited employment opportunities; that the Basij (or other Iranian state agents) harassed, extorted or (on one occasion) detained and assaulted him; and that he was denied the other benefits of being either an Iranian national or a registered Iraqi refugee. I am not satisfied that [the appellant] departed Iran on a false Iraqi passport, because he did not have and could not get appropriate Iranian travel document, or that he left Iran to flee persecution or any other mistreatment.

I am also not satisfied that [the appellant] is a stateless, undocumented Faili Kurd who would be denied entry into Iran in the future, or who would face a real chance of discrimination or other mistreatment amounting to persecution if he succeeded.

24    Secondly, at [124] and [125] of his reasons, the second respondent found that, on the available material, he was not satisfied that the appellant engaged in the protest at Villawood IDC otherwise than for the purpose of strengthening his claim to be a refugee: see [36] to [38] below.

the federal magistrates court

25    The appellant raised a large number of grounds of review in his application to the Federal Magistrates Court. Not all of these grounds were pursued. The appellant was granted leave to file and rely upon a further amended application. The presiding Federal Magistrate was not satisfied that any of these grounds had been made out and dismissed the appellant’s application with costs.

the appeal

26    As the appeal came to be argued, the appellant relied upon the following grounds and particulars in his notice of appeal filed on 9 January 2013, and did not press the balance:

1.    The Court below erred in finding that the Second Respondent (the Reviewer) correctly interpreted and applied s. 91R(3) of the Migration Act 1958 (Cth) (the Migration Act).

Particulars

…

(c)    Error in failing to find that the Reviewer was required to consider the evidence before him as to the motivation of the Appellant in engaging in rooftop protests at the Villawood IDC

2.    The Court below erred in finding that the Reviewer did not deny procedural fairness to the Appellant.

Particulars

    (a)    Error in finding that there was no denial of procedural fairness in the Reviewer’s failing to put to the Appellant, orally or in writing;

    (i)    That an issue in the Appellant’s case was why “he and his mother had hoarded cash of diminishing value, over a decade or so, rather than address their claimed poverty.”

    (ii)    That issues in the Appellant’s case were the “practical arrangements of producing a photograph for the people smuggler in Tehran who allegedly procured a photo-substituted Iraqi passport; and his physical appearance when departing Tehran’s international airport (and whether, for instance, this was such as to arouse suspicions on the part of the Iranian authorities).”

    (iii)    That an issue going to his credit was his apparent lack of having, “… thought about or be able to comment on the link in his own family (but presumably not in others) between poverty and family size.

    (b)    Error in finding that there was no denial of procedural fairness in the Reviewer’s drawing of adverse inferences from the Appellant’s failure to elaborate on answers given at interview when he was not asked to elaborate on;

        (i)    The issue of how the Appellant reconciled poverty influencing the size of his family with the (presumably) larger families of others who were (by implication) also poor.

        (ii)    The circumstances surrounding the family’s legal status in Iran.

(iii)    The Appellant’s evidence to the effect that his employer in Ilam “… knew of his situation but could not help”.

    …    

3.    The Court below erred in finding that the Reviewer’s recommendation was not reached by an arbitrary or capricious assessment of the evidence.

    Particulars

    …

(c)    Contrary to the finding of the Court below, the Reviewer’s being “unsettled” by the Appellant not having thought about why poverty had affected the size of his family but not others (which contributed to his lack of satisfaction as to the Appellant’s claim to being an undocumented Faili Kurd), was arbitrary and unreasonable.

…

The first ground of appeal

27    When the matter was before the Federal Magistrates Court, the appellant contended that the second respondent erred in his interpretation and application of s 91R(3) of the Act for two reasons. The first was that the second respondent erroneously considered that the conduct engaged in by others publishing the appellant’s name and photograph in connection with the protest at Villawood IDC came within s 91R(3) of the Act. The second was that the second respondent erred in failing to consider evidence before him as to why the appellant engaged in the protest at Villawood IDC when seeking to determine the motive for the appellant’s conduct at that time. The presiding Federal Magistrate dismissed this ground of review on both bases.

28    As to the second reason, her Honour noted that s 91R(3)(b) makes clear that the appellant had the burden of satisfying the Minister that he had engaged in the protest at Villawood IDC otherwise than for the purpose of strengthening his claim to refugee status.

29    After referring to certain aspects of the second respondent’s decision, the presiding Federal Magistrate found that it was open to the second respondent to conclude that he was not so satisfied. Before dealing further with her Honour’s reasons, it is necessary to consider how the matter was put to the second respondent and to note the findings that were subsequently made by him.

30    As will be apparent from my summary of the events leading to the second respondent’s decision, it was the second respondent who raised with the appellant’s agent the question of whether the appellant wished to make further submissions about his involvement in the Villawood IDC protest: see [19] above. As I have noted, in extending that invitation, the second respondent specifically drew attention to the fact that the published reports suggested that the appellant was providing information about himself to supporters outside Villawood IDC. Reference to the internet reports indicates that the appellant was in contact, directly or indirectly, with newspapers reporting on the protest. The second respondent also drew attention to the fact that s 91R(3) might apply to the appellant’s involvement in the protest.

31    When responding on 6 December 2011, the appellant’s agent specifically addressed the potential application of s 91R(3) of the Act to the appellant’s involvement in the protest. The agent referred to the media’s publication of the appellant’s name, age and nationality, as well as images of him, as “a reckless act” that could place “[the appellant] and his mother in Iran at a greater risk of being harmed”. The agent then made the following “observations and submissions” with respect to the application of s 91R(3).

32    First, the appellant’s agent referred to various reports from Ms Jolan and said that these reports identified the following matters:

(a)    The appellant’s mental processes were “significantly impaired and distorted”.

(b)    The appellant was suffering from “paranoia thoughts” and, if placed under “enormous amounts of distress”, could experience dissociation.

(c)    The appellant was unable to exert control over his executive functioning.

33    Secondly, the appellant’s agent submitted that the appellant had not himself raised his conduct in an attempt to create or enhance his claims to be a person to whom Australia owes protection obligations, despite having had “ample opportunity to do so”.     

34    The agent continued:     

Under these circumstances, [the second respondent] cannot be satisfied that [the appellant] engaged in this conduct for a purpose, let alone the sole purpose, of enhancing or creating a claim. It is apparent that the staff of the Department of Immigration and Citizenship and the mental health team at the Villawood Immigration Detention had been advised by Ms Jolan about [the appellant’s] fragile state of mind, which as predicted, led him to act in such a manner.

We submit that [the second respondent] can be satisfied that [the appellant’s] conduct falls outside the scope of s.91R(3) of the Act.             

35    It can be seen, therefore, that the appellant’s agent had advanced the appellant’s mental condition as the reason why he had engaged in the protest and argued that, as a consequence, that conduct fell outside s 91R(3) of the Act.

36    In his reasons, the second respondent expressed concern about the substance of that submission. He said (at [124]):

… First, the agent has not provided material to demonstrate, and the limited available material does not seem to support, the notion that [the appellant’s] mental health prevented him from forming any intention or purpose in April 2011. Second, the agent indicates that Ms Jolan had already alerted DIAC staff and the mental health team about [the appellant’s] ‘fragile state of mind’, which I accept. He goes on to state that this, in turn, ‘as predicted, led him to act in such a manner’. It is not clear to me that [the appellant’s] reported aggression at the time, or his fragile mental state, shed light on his motivation for engaging in the rooftop protest.

37    The second respondent also said (at [124]):

While the submission of 6 December 2011 refers to medical evidence and similar arguments, it is unfortunate that I have not had an opportunity to hear directly from [the appellant] as to his motivation for engaging [in] the protests, the sequence of events that led to his actions, his ongoing presence on the roof, and his knowledge of how the media came to know his name, age and ethnicity/nationality. As I flagged in my letter, some articles indicated that [the appellant] and his friends had mobile telephones, that their friends were recharging the batteries for them, and that they were communicating the reasons for the protest. It would have been useful to hear from [the appellant] directly about these circumstances.

[Emphasis added]

38    The second respondent then concluded (at [124]) as follows:

On the available material, I am not satisfied that [the appellant] engaged in this conduct otherwise than for the purpose of strengthening his claim to be a refugee. I find that the conduct – including its immediate consequences such as the publication of his image and personal details – falls within the scope of s.91R(3) of the Act. I must, therefore, disregard it.

39    The presiding Federal Magistrate noted (at [58]) the second respondent’s concern. Her Honour also noted (at [60]) the following submission made by the appellant:

[The appellant] submitted that there was evidence in the published reports of the rooftop protests as to [the appellant’s] motivation for that conduct. Those were [the appellant’s] desire to tell the world of his treatment and that he wanted freedom.

40    The presiding Federal Magistrate found (at [61]) that the second respondent was not obliged to accept as evidence the reported statements allegedly made by the appellant. It is plain that, here, her Honour was finding that the second respondent was not obliged to accept that the reported statements reflected the appellant’s true reasons for engaging in the protest. Her Honour reasoned that the second respondent was entitled to give weight to the failure of the appellant to provide any direct evidence of his motivation and his failure to attend the second hearing.

41    The appellant submits that, although the second respondent canvassed submissions that did not satisfy him of the appellant’s motives for protesting at the Villawood IDC in April 2011, the second respondent did not examine “the contemporary evidence, of which he was plainly aware … as to why [the appellant] protested as he did”.

42    This last-mentioned reference is to the reasons attributed to the protesters in the published reports referred to by the second respondent. In this connection, the appellant submits that he protested because “he wanted to tell the world of his treatment and that he wanted freedom”. The appellant submits that these statements were “centrally relevant” to the second respondent’s consideration of the application of s 91R(3) of the Act, and that the failure to consider “this evidence” rendered the decision legally flawed. Implicit in this submission is the contention that the presiding Federal Magistrate also erred in her conclusion on this ground.

43    This ground of appeal cannot succeed for two reasons. First, it seems reasonably clear that, contrary to the premise of the appellant’s submission, the second respondent did in fact consider the appellant’s stated reasons for protesting, as expressed in the published reports. Significantly, when detailing the progress of the appellant’s case and, in particular, inviting submissions about the appellant’s involvement in the protest, the second respondent drew attention, albeit in general terms, to the appellant’s communication of his reasons for the protest: see [19] to [21] above. In context, this can only be a reference to the reasons expressed in the published reports. These reasons were again referred to in general terms in [124] of the second respondent’s reasons: see the quotation in [37] above. I do not accept that, after having repeatedly drawn attention to the reported reasons in general terms, including in the context of inviting submissions for the purpose of considering the application of s 91R(3) of the Act to the appellant’s conduct, the second respondent then put them out of mind when considering the application of the section. As the presiding Federal Magistrate found, the second respondent was not obliged to accept the reported reasons as reflecting the appellant’s true motivation for engaging in the protest.

44    Secondly, and importantly, the submission that the reported reasons were centrally relevant to the second respondent’s consideration of the application of s 91R(3) of the Act was not one that was advanced to the second respondent himself. Indeed, the appellant’s agent submitted that it was the appellant’s fragile mental condition that led him to engage in the protest. That submission having been advanced on behalf of the appellant in relation to the possible application of s 91R(3) to his conduct, it is of no surprise that, in his reasons, the second respondent expressly engaged with it. As it turns out, the second respondent was not prepared to accept that submission.

45    No error has been demonstrated in the presiding Federal Magistrate’s rejection of this ground of review. The contention that the second respondent failed to correctly interpret and apply s 91R(3) of the Act cannot be sustained. This ground of appeal fails.

The second ground of appeal

46    The second ground of appeal raises allegations of a denial of procedural fairness. Two contentions are advanced. The first is that the presiding Federal Magistrate erred in finding that there was no denial of procedural fairness by the second respondent not putting certain matters to the appellant. The second is that the presiding Federal Magistrate erred in finding that there was no denial of procedural fairness in the second respondent drawing adverse interferences from the appellant’s failure to deal with certain matters.

Failure to put matters to the appellant

47    In his reasons, the second respondent expressed concerns about the appellant’s own evidence concerning his life in Iran and the arrangements for his travel to Australia. These concerns included the matters referred to in particulars (a)(i), (ii) and (iii) of the second ground of appeal. It is important to note that these were just some of the matters that raised questions in the second respondent’s mind when he was considering whether, on the material presented by the appellant, he could be satisfied that the appellant was, as claimed, a stateless, undocumented Faili Kurd who had a well-founded fear of persecution for a Convention reason.

48    The presiding Federal Magistrate found that, when identifying these matters of concern, the second respondent was doing no more than stating that he was not satisfied with the appellant’s evidence on them. Her Honour reasoned that these matters really represented the second respondent’s assessment of the appellant’s evidence and that, in the circumstances, procedural fairness did not require that these matters be put to the appellant for comment. In this connection, her Honour referred to authority which holds that, although procedural fairness might require a decision-maker to advise of any conclusion which would not obviously be open on the known material, a decision-maker is not otherwise required to expose his or her thought processes or provisional views for comment before making the decision: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 589-592; Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [9].

49    In this appeal, the appellant has asserted error in the presiding Federal Magistrate’s finding, but has not explained why her Honour’s characterisation of this part of the second respondent’s reasons was wrong. In my view, her Honour’s finding was not only open to her but was, with respect, correct in fact and principle. I am satisfied that the second respondent was exposing his own thought processes when assessing the reliability of the appellant’s evidence, not merely on these particular matters, but over a range of matters that, in combination, were advanced by the appellant to sustain his claim to be a stateless, undocumented Faili Kurd who faced a real chance of persecution if returned to Iran. It was certainly known by the appellant that the credibility of his claims was in issue. Indeed, the second respondent stated this at the appellant’s interview on 21 September 2011.

50    I am satisfied that, in relation to the matters identified in this ground of appeal, procedural fairness did not require the second respondent to raise, in advance of making his decision, apparent inconsistencies, contradictions or weaknesses, as he perceived them to be, in the appellant’s claim, as presented. It follows that this aspect of the second ground of appeal fails.

Drawing adverse inferences

51     This aspect of the second ground of appeal essentially concerns some (but not all) remarks made by the second respondent in [112] of his reasons. This paragraph contains a discussion of certain specific concerns that the second respondent had in relation to the appellant’s evidence about his life in Iran, including elements that related to his claim to be a stateless, undocumented Faili Kurd.

52    As articulated, this ground of appeal is premised on the second respondent having drawn adverse inferences from the appellant’s evidence. The ground does not identify any specific adverse inference, and none was addressed at the hearing of the appeal. In this connection, it is instructive to appreciate precisely what the second respondent did find after considering these matters. At [113] of the reasons, the second respondent said:

I acknowledge that [the appellant’s] age and personal circumstances could cause him to have limited knowledge of some of the matters in the preceding paragraph. Accordingly, I do not dismiss his claims, or even draw strong adverse inferences, from his limited evidence he provided on these matters. Nonetheless, the lack of peripheral, incidental or anecdotal evidence raises questions about the completeness and reliability of his evidence. The medical reports suggest that [the appellant’s] mental health could partly explain such gaps, and I accept that he may be resentful about the interview process. However, in the light of these concerns, I am not prepared to accept all his refugee claims and evidence at face value.

[Emphasis in original]

53    The second respondent then continued with his assessment of the appellant’s claim in the course of which he identified, in detail, a number of matters about which he was not satisfied.

54    The presiding Federal Magistrate concluded that there was no denial of procedural fairness constituted simply by the second respondent not asking the appellant to elaborate on the evidence he had given with respect to the matters identified in the particulars in paragraphs (b)(i), (ii) and (iii) of this ground of appeal. Once again, although the appellant has alleged error in her Honour’s finding, there was no elaboration in the appeal as to why this was so.

55    In the course of argument, I was taken to various parts of the transcript of the appellant’s interview with the second respondent on 21 September 2011 where the appellant gave his evidence on these matters. The point of this, as I apprehend it, was to provide the basis for advancing the submission that, had the second respondent wished the appellant to elaborate on the evidence he had given, the second respondent could have, and should have, invited the appellant to do so at the time. A failure to do so, according to the appellant, was a denial of procedural fairness.

56    I do not accept that submission. The second respondent was under no obligation to take positive steps to render more cogent the answers which the appellant gave to the questions he was asked on these matters. Nor was the second respondent acting as a contradictor seeking to disprove the correctness of those answers as a matter of fact, or their completeness. The second respondent was not obliged to probe the appellant’s answers, beyond gaining an understanding of what the appellant had said. The observations of Gummow and Hayne JJ in Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [187] are apposite to the present case. When dealing with a contention that procedural fairness required a decision-maker to challenge the truthfulness of an answer it was not minded to accept, their Honours observed that it was for the appellant to advance whatever evidence or argument that person wished to advance in support of the claim that he or she had a well-founded fear of persecution for a Convention reason, and for the decision-maker to then decide whether that claim had been made out.

57     In my view, no error has been demonstrated in the presiding Federal Magistrate’s conclusion. It follows that this aspect of the second ground of appeal also fails.

The third ground of appeal

58    This ground of appeal has been distilled to a single contention that the second respondent’s decision was reached by an arbitrary or capricious assessment of the evidence, in light of the second respondent’s expressed concern that he was “unsettled” by the appellant’s lack of thought when responding to questions about the size of his family.

59    The second respondent’s concern, in this particular regard, was expressed in [112] of the reasons as follows:

… [The appellant] said at the interview that Milemaran had about 50 households, but pointed out that the population was much larger because people there have large families. Asked to comment on his and his parents’ small families (mainly single children), [the appellant] referred briefly and without further explanation to their poverty (and, by implication, their lack of documentation). Against the background of his own earlier evidence about Milemaran’s large families, I was unsettled that [the appellant] did not appear to have really thought about that question, or be able to comment on the link in his own family (but presumably not others) between poverty and family size.

60    The presiding Federal Magistrate was not persuaded that this particular reasoning demonstrated an arbitrary or capricious assessment of the evidence.

61    In this appeal, the following submission was advanced on behalf of the appellant:

The Federal Magistrate’s response does not engage with the submission put to her, which was that there is no reason why the appellant, a poorly educated young man from Eastern Iran, or indeed anybody, could have been expected to muse on this issue. The appellant is not a philosopher or demographer. The experience of third world countries clearly demonstrates that poverty does not inhibit the size of families. That the Tribunal expected the appellant to have considered this issue is entirely arbitrary and unreasonable.

62    The appellant referred to the observations of Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS and Another (2010) 240 CLR 611 at [129]-[131]. At [130], their Honours said:

In the context of the Tribunal's decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.

63    The appellant also referred to the observations of Rares J in SZOOR v Minister for Immigration and Citizenship and Another (2012) 202 FCR 1 at [15]:

The approach to irrationality or illogicality dictated by the authorities in the High Court appears to be that even if the decision-maker's articulation of how and why he or she went from the facts to the decision is not rational or logical, if someone else could have done so on the evidence, the decision is not one that will be set aside. It is only if no decision-maker could have followed that path, and despite the reasons given by the actual decision-maker, that the decision will be found to have been made by reason of a jurisdictional error.

64    Counsel for the appellant volunteered that, on this ground, the appellant faced “a very high standard”. That observation was well-made. In my view, this ground of appeal cannot be sustained. It is a fair inference from [112] of the second respondent’s reasons that his concern about the appellant not appearing to have thought about the question he was asked was a concern related to the completeness and reliability of the appellant’s evidence. This was but one matter that the second respondent had identified in that part of his reasons as causing him concern in that regard. I have already quoted [113] of the second respondent’s reasons (see [52] above), which stands as the culmination of those concerns: the second respondent was not prepared to accept all the appellant’s refugee claims and evidence at face value.

65    The appellant’s submissions give this particularly expressed concern by the second respondent a significance which it plainly does not have. It was but one matter which, taken with others, led to the interim conclusion stated in [113] of the reasons. That conclusion, itself, was only a step along the way to the second respondent’s ultimate conclusion that he was not satisfied that the appellant was a stateless, undocumented Faili Kurd who would be denied entry into Iran in the future, or who would face a real chance of discrimination or other mistreatment amounting to persecution if he succeeded. That decision was based on a large number of considerations, which were fully identified and articulated in the reasons.

66    In my view, the appellant’s criticism of the particular concern expressed by the second respondent is misplaced. The proposition advanced in the appellant’s submission on appeal – that, relevantly, poverty does not inhibit the size of families – was, in my view, the very sentiment expressed by the second respondent which led him to reflect that, by giving the answer he did, the appellant had not really thought about the question he had been asked. This was but one matter, amongst a number of other matters, that led the second respondent to question, generally, the completeness and reliability of the appellant’s evidence. But, regardless of whether criticism can be made of the second respondent’s particular concern to which this ground of appeal is specifically directed, it cannot be said that his state of non-satisfaction on the ultimate question for determination was, as a consequence, arbitrary or capricious: Minister for Immigration and Citizenship v SZOCT and Another (2010) 189 FCR 577 at [83]-[84] per Nicholas J; SZNKO v Minister for Immigration and Citizenship [2013] FCA 123 at [111]-[113] and [125] per Barker J. Accordingly, this ground of appeal fails.

Disposition

67    The appellant has failed to establish error on the part of the Federal Magistrates Court by reference to the grounds of appeal which were finally pressed. It follows that the appeal must be dismissed, with costs.

Associate:

Dated:    12 June 2013