FEDERAL COURT OF AUSTRALIA

SZRQF v Minister for Immigration and Border Protection [2014] FCA 7

THE COURT ORDERS THAT:

1.    The name of the first respondent be amended to Minister for Immigration and Border Protection.

2.    The appeal be dismissed.

3.    The appellant pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

INTRODUCTION

1        This is an appeal from a judgment of a Federal Magistrate (now a Judge of the Federal Circuit Court of Australia) given on 13 February 2013 dismissing the appellant’s application for a declaration (together with a related injunction) impugning the recommendation made by the second respondent that the appellant not be recognised as a person to whom Australia owed protection obligations under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (the Refugees Convention). The first respondent (the Minister) seeks to uphold the judgment under appeal; the second respondent (the Reviewer) has submitted except as to costs.

2        For reasons which I will explain, I agree with the primary judge that the Reviewer did not deny the appellant procedural fairness, nor did he misunderstand the appellant’s claims. I also agree that the Reviewer did not fail to have regard to any relevant matter or have regard to any irrelevant matter. The appeal must therefore be dismissed.

M61

3        The recommendation which the appellant sought to impugn was made by the Reviewer as part of what is referred to by the Minister as Independent Merits Review (IMR). Such a review occurs in the context of the statutory framework considered by the High Court in Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319 (M61) including, in particular, s 46A and s 195A of the Migration Act 1958 (Cth) (the Act). As the High Court explained at [13], the power given by s 46A is one that permits the Minister to determine that an “offshore entry person” may make a valid application for a visa of a specified class; the power given by s 195A permits the Minister to grant a visa in the absence of a valid application for that visa. The powers conferred upon the Minister by s 46A and s 195A may only be exercised by the Minister personally. Further, the Minister is not under any duty to consider whether to exercise his power under either provision.

4        In M61, the High Court held that where a reviewer conducts an IMR for the purposes of the Minister considering whether to exercise power under s 46A or s 195A “the assessment and review must be procedurally fair and must address the relevant legal question or questions”. At [77]-[78] the Court stated:

[77]    Because the Minister was not bound to exercise power under either s 46A or s 195A, no matter what conclusion was reached in the assessment or review, it cannot be said that a decision to consider exercising the power affected some right of the offshore entry person to a particular outcome. The offshore entry person had no right to have the Minister decide to exercise the power or, if the assessment or review were favourable, to have the Minister exercise one of the relevant powers in his or her favour. Nonetheless, once it is decided that the assessment and review processes were undertaken for the purpose of the Minister considering whether to exercise power under either s 46A or s 195A, it follows from the consequence upon the claimant’s liberty that the assessment and review must be procedurally fair and must address the relevant legal question or questions. The right of a claimant to liberty from restraint at the behest of the Australian Executive is directly affected. The claimant is detained for the purposes of permitting the Minister to be informed of matters that the Minister has required to be examined as bearing upon whether the power will be exercised.

[78]    The Minister having decided to consider the exercise of power under either or both of ss 46A and 195A, the steps that are taken to inform that consideration are steps towards the exercise of those statutory powers. That the steps taken to inform the consideration of exercise of power may lead at some point to the result that further consideration of exercise of the power is stopped does not deny that the steps that were taken were taken towards the possible exercise of those powers. Nor does it deny that taking the steps that were taken directly affected the claimant’s liberty. There being no exclusion by plain words of necessary intendment, the statutory conferral of the powers given by ss 46A and 195A, including the power to decide to consider the exercise of power, is to be understood as “conditioned on the observance of the principles of natural justice” [Kioa v West (1985) 159 CLR 550 at 615 per Brennan J]. Consideration of the exercise of the power must be procedurally fair to the persons in respect of whom that consideration is being given. And likewise, the consideration must proceed by reference to correct legal principles, correctly applied.

5        In M61, declarations were made that the Reviewers made errors of law and denied the applicants procedural fairness, but injunctive relief was denied on the basis that there was no threat that the applicants in that case would be removed from Australia without the benefit of further reviews.

PROCEDURAL BACKGROUND

6        The appellant arrived at Christmas Island on 17 November 2009. An entry interview was conducted on 22 November 2009 (November 2009 interview). This interview was conducted with the assistance of an interpreter in the Kurdish Faili language. A typewritten statement of claims dated 31 December 2009 (appellant’s statement of claims) was submitted by the appellant’s migration adviser. The appellant applied for a refugee status assessment (RSA) and was interviewed for the purposes of that assessment on 4 January 2010 (January 2010 interview).

7        On 18 February 2010 the appellant was notified that the Australian Government had determined that the appellant did not meet the definition of refugee in the Refugees Convention and that he was not a person to whom Australia owed protection obligations.

8        On 3 March 2010 the appellant applied for IMR. A submission in support of his application for IMR was lodged by his immigration adviser on 22 March 2010. On 5 May 2010, as part of this IMR, the appellant was interviewed (May 2010 interview) by an IMR reviewer (Professor Blay).

9        On 6 September 2010 the appellant was notified that the IMR Reviewer was not satisfied that the appellant was a person to whom Australia owed protection obligations under the Refugees Convention.

10        Following the decision of the High Court in M61 the appellant was granted a second IMR by a different reviewer, the second respondent (Mr Griffin).

11        As part of the second IMR, the appellant was interviewed by the Reviewer on 21 January 2011 (January 2011 interview). During the course of this interview an issue arose in relation to the translation of the May 2010 interview. The January 2011 interview was terminated to enable an independent translation of the transcript of the May 2010 interview to be obtained.

12        The appellant was interviewed by the Reviewer on 9 June 2011 (June 2011 interview). The appellant’s migration agent provided the Reviewer with written submissions both before and after the June 2011 interview.

13        The second IMR recommendation, which was the subject of the appellant’s proceeding in the Court below, was made on 5 September 2011.

THE APPLICATION FOR JUDICIAL REVIEW

14        The application heard and determined by the primary judge was the Further Amended Application filed 27 November 2012. Of the various grounds for review relied upon by the appellant before the primary judge, it is only para 6, subparas (a)-(e), that is relevant to the appeal.

15        Paragraph 6 of the Further Amended Application relevantly stated:

    The Reviewer fell into jurisdictional error by acting upon misconceptions as to the effect of the evidence given and the claims relied upon by the Applicant, and thus upon irrelevant considerations and not upon the evidence and claims presented by the Applicant; namely:

    (a)    at [20] of the report, that the applicant had said, that his preferred language was Faili Kurd, being the language of the interpreter on the first IMR, of whom he had complained, when in fact he said his preferred language was Persian (Farsi).

    (b)    at [35] of the report, that ‘the record indicates that the risk of physical harm was given no emphasis by [the Applicant] in his initial interview and written claims’, when in fact:

        (i)    in his initial interview he had said, that if sent back, he would have ‘no security’ and would be put in gaol, and

        (ii)    in his statement of claims he had said, that he had to pay money to avoid detention or ‘torture’, ‘feared physical harm’ and ‘persecution’ and could be ‘killed’ if sent back.

    (c)    at [35] of the report, that the applicant had ‘stated positively on at least 2 occasions that he had not been beaten or otherwise assaulted by the authorities’, when in fact he had said:

        (i)    on his entry interview, that he had not personally been ‘hurt’ when ‘threatened’, in the sense of suffering lasting injury, although he later explained, that he had been ‘slapped’, ‘smacked’, ‘hit on the head’ and had witnessed the breakage of bones of friends by police, and

        (ii)    on his RSA interview, that he had not been ‘beaten’, but ‘abused’ and ‘humiliated’ by the police and made to stand in the sun for hours.

    (d)    at [35] of the report, that only ‘later’ had he told of being made to stand in the sun for hours, when in fact it was contained in his initial claims and in his RSA interview.

    (e)    at [35] of the report, that he had ‘subsequently changed’ his evidence to having been ‘slapped and forced to pay bribes to the Basij on a frequent basis’, when in fact the former was not a change and the latter was in his initial statement of claims and RSA and subsequent interviews and submissions.

THE GROUND OF APPEAL

16        Although the appellant’s notice of appeal includes only one ground of appeal (ground 1) this ground in fact raises a number of distinct challenges to the primary judge’s decision. It states:

The Court below erred in rejecting ground 6, particulars (a) to (e) of the Appellant’s Further Amended Application filed 27 November 2012 in the Federal Magistrates’ Court, by:

(a)    failing to find, that the Independent Merits Reviewer had misconstrued the claims and evidence of the appellant in the manner stated in particulars 6(b), (c) and (e)

(b)    applying tests (in paragraphs 41 and 73) valuing [sic] the ‘affect on the exercise of power’ and ‘consequence to the outcome’ of the Independent Merits Reviewer’s individual errors, individually or together, instead of apply [sic] the test of whether they might have affected the result or were any part of the basis of the decision, particularly of his adverse credibility finding; and/or

(c)    finding (in paragraphs 41 and 73), that the errors made by the Independent Merits Reviewer in construing the claims and evidence, subject of particulars 6(a) and (d), respectively did not affect the exercise of power and were not of consequence to the outcome.

    Particulars

(i)    Application of the correct test referred to in (b) above would have resulted in the Court below finding that jurisdictional error had been established.

(ii)    In relation to (c) each of the errors by the Independent Merits Reviewer related to the finding against the credit of the appellant and on the basis of the finding of credit the Independent Merits Reviewer determined that there was no credible evidence that he suffered a risk of serious harm

17        In relation to the matter raised in para 6(d) of the Further Amended Application, the Minister has filed a notice of contention in which he asserts:

The Federal Magistrates Court erred in holding (at [70]) that the Second Respondent made an error of fact in finding that the Appellant had “later” said he had been made to stand in the sun for some hours. The Federal Magistrates Court ought to have held that it was open to the Second Respondent to find that the appellant had “later” said he had been made to stand in the sun for some hours.

JURISDICTIONAL ERROR

18        The appellant’s grounds of appeal assert that the primary judge should have found that the Reviewer’s decision was affected by jurisdictional error. However, the availability of the remedies sought by the appellant did not depend upon him establishing that the Reviewer’s decision was affected by jurisdictional error. Still, there must be a proper legal basis to support any decision to grant a declaration or injunction as sought by the appellant.

19        The appeal was argued by the Minister, correctly in my view, on the footing that the appellant was, and is, entitled to a declaration in suitable terms if it is shown that, contrary to the primary judge’s conclusion, the Reviewer committed a legal error that could have affected the outcome of the review. This would include, relevantly, (a) failing to take into account a consideration which the Reviewer was bound to take into account, (b) taking into account a consideration that the Reviewer was not entitled to take into account, and (c) not affording the appellant procedural fairness.

20        The subject matter of the IMR review was the appellant’s claim for a protection visa. The question for the Reviewer was whether or not the appellant satisfied a criterion for a protection visa set out in s 36(2) of the Act, which in turn depended upon whether the appellant was a refugee to whom Australia owed protection obligations under the Refugees Convention. There were in fact several different grounds upon which the appellant claimed to be such a person. These particular claims were matters that the Reviewer was obliged to take into account if he was to make a recommendation based upon correctly applied legal principle. Failure on the part of the Reviewer to consider any one of more of the claims made by the appellant in support of his claim for a protection visa would constitute an error of law.

THE REVIEWER’S STATEMENT OF REASONS

21        In his recommendation and statement of reasons dated 5 September 2011, the Reviewer recommended that the appellant not be recognised as a person to whom Australia has protection obligations under the Refugees Convention.

22        In his reasons, the Reviewer gave an account of the appellant’s November 2009 interview. This account appears to have been drawn directly from the written record of that interview. At [11]-[12] of the reasons the Reviewer stated:

[11]    The claimant was first interviewed by a DIAC officer on 22 November 2009 with the assistance of an interpreter in the Kurdish Faili language. The record of that interview states that the claimant was born in 1980 in Baghdad, Iraq; that he has no citizenship; that his last address was in Tehran, Iran; that he lived in Iran all his life from approximately one year of age; that he held an official ‘White Card’ issued by the Iranian authorities; that he attended twelve years of school; that he is a Faili Kurd; that he is a Shia Muslim; that he speaks the Kurdish Faili, Arabic and Persian languages; that he has never married; that he worked for the last nine years in a shop selling make-up; that his father was arrested by the Iraqi authorities when he was an infant and has not been seen since; that his mother died three years ago and that he has no siblings. In that interview the claimant is recorded to have said, in part:

        I live in Iran 28 years. I don’t have documents. They don’t believe I am a person...if I go to the bank they ask me for citizenship, any part of Iran they ask me about citizenship. To send something to my auntie I need citizenship. This is all problems because I don’t have documents. Whenever I want anything they ask me about citizen. I cannot do anything.

[12]    In answer to the question ‘Have you ever been threatened?’ the claimant said:

        No one has hurt me. My problem is I don’t have citizenship.

23        The Reviewer then referred to the appellant’s statement of claims and a submission received from the appellant’s adviser. The Reviewer stated at [13]-[14]:

[13]    In a typewritten statement of claims submitted by his adviser, dated 31 December 2009 and made with the assistance of a Kurdish – Arabic interpreter, [the appellant] declared, in part, as follows:

        I have done 12 years of schooling [an attachment gives 1999 as the final year of school]

        I was living the life of a stateless person and did not have any civil rights in Iran in terms of education, work and health. We cannot go to university and cannot get medical facilities.

        I could not get my marriage registered formally if I get married.

        We do not have same opportunities in employment as Iranians. We would not get employment and if find job would get paid less and in case do not get paid at all we cannot complain.

        I did not have identity, could not open a bank account and cannot have any kind of insurance.

        There is a group called Basij (religious group that has full authority, different from government) that would harass us all the time. They would check the ID papers and after checking them when found we are Kurdish it would aggravate the situation and had to pay money for not being detained. They would accuse us of killing their people during the war. They would detain us as they like and take people away to their interrogation centres and torture us.

        Once I was stopped by them and was asked for identification, I showed them my white card, he looked at the card and with anger asked me to stand in the sun, it was few hours and I was not allowed to sit. After that I had to pay money to get away and I was warned not to be seen by them again.

        I was constantly living in fear of physical harm in Iran and was persecuted due to being Kurdish Faili.

        I am a stateless person and nowhere to go and live.

        I have a genuine fear of physical harm and could even be killed if I try to go back suspecting to be an agent or a spy.

[14]    A submission to the first IMR from [the appellant’s] adviser dated 22 March 2010, stated in part:

        He was never beaten by the police but had to pay bribes so he was not detained. On one occasion they made him stand in the sun for a long time while they checked his identity...the review applicant has been interviewed twice by registered migration agents with the assistance of NAATI accredited interpreters fluent in Kurdish (Failie) and English…Records of both interviews are attached.

24        The submission referred to by the Reviewer included a summary of the appellant’s claims which is referred to at [16] of the Reviewer’s reasons as follows:

        Nationality – ethnicity as a Faili Kurd

Membership of a particular social group:

◦    stateless person; and/or

◦    failed asylum seeker returning from a Western country

Actual/imputed political opinion – being opposed to the Iranian regime having fled the country illegally and returning from a Western country such as Australia with ties to the UK – a country openly critical of the Iranian regime.

25        The Reviewer’s reasons made reference to a number of other statements that the appellant was said to have made. The first of these statements, which is quoted by the Reviewer at [15] of his reasons, was said to have been made by the appellant during the January 2010 interview. The Reviewer said of this interview (which he referred to as the RSA interview) at [15] of his reasons:

[15]    The RSA interview conducted with the assistance of a Kurdish interpreter contains the following notes, dated 4 January 2010:

- 12 years in school in Iran

- marriages cannot be registered

- White card – can move around Tehran but not outside

- Basij did not beat him but abused and humiliated him. Caught him once or twice, paid and released. Had fear.

[emphasis added]

26        The second statement, referred to at [17] of the Reviewer’s reasons, is a statement that was attributed to the appellant by the first IMR reviewer. According to the first IMR reviewer (Professor Blay) as quoted in [17] of the Reviewer’s reasons:

    The panel asked the applicant if he had ever been assaulted or persecuted by the Basij. He said he had not but he was constantly abused verbally. He also said he was however aware that a friend’s brother was beaten by the Basij.

27        The Reviewer then gave an account of his two interviews of the appellant. The Reviewer noted that the appellant’s migration agent was present at both these interviews. The first, the January 2011 interview, was conducted with the assistance of an interpreter in the Kurdish Faili language. The second, the June 2011 interview, was conducted with the assistance of an interpreter in the Persian (Farsi) language.

28        In his reasons at [18]-[19] the Reviewer explained that in the January 2011 interview, the appellant said that during the first IMR hearing before Professor Blay, the May 2010 interview, the interpreter changed languages from Faili Kurd to Arabic, and that there were problems with the translation. According to the Reviewer, the appellant said that this was done without the knowledge of Professor Blay. The appellant then told the Reviewer that he informed Professor Blay that he had been bashed by the Basij. This led the Reviewer to terminate the interview. I refer to the transcript of the January 2011 interview in greater detail at [36] to [38] below.

29        According to the Reviewer’s reasons at [19], he subsequently obtained a transcript of the May 2010 interview with Professor Blay. The Reviewer noted that the affidavit verifying the transcript was sworn by an English-Arabic translator. The Reviewer stated that the affidavit verifying the transcript made no reference to a change from Faili Kurd to Arabic and that it recorded Professor Blay as saying that Kurdish was the language being interpreted into English. However, the translator was not recorded as saying what language was being used.

30        After the transcript of the May 2010 interview was obtained, another interview of the appellant was arranged. The Reviewer gave an account of what was said during this interview, the June 2011 interview, at [20] of his reasons. The Reviewer states:

I asked [the appellant] which language he wished to use to speak with me. A Persian interpreter had been provided at his request this time. He said “Either is ok, after thirty years I speak better Faili Kurd. I pointed out that he had asked for a Persian interpreter this time. He said, “Yes, I said I want a Persian interpreter”. The interpreter confirmed that he would interpret from English to Persian and from Persian to English. I asked if he had been able to consider the transcript of his first IMR interview with his adviser. He and his adviser confirmed that was the case.

31        The Reviewer then asked the appellant some questions about his life in Iran. He then put to him, as recorded in [22] of his reasons, the statement attributed to the appellant in the November 2009 interview (which was referred to in [12] of the Reviewer’s reasons and at [22] above). According to the Reviewer the appellant said, “Yes, I said that”.

32        The Reviewer then put to the appellant a part of the transcript of the May 2010 interview with Professor Blay which is set out at [23] of the Reviewer’s reasons. According to the Reviewer at [24]-[25]:

[24]    [The appellant] said the transcript was correct. I asked if there was anything else he wanted to say about the interpreting or his claims. He said, “In the first interview on Christmas Island, I am a Faili Kurd and my problem is no nationality and whenever there were difficulties with the Basij or Police that was the reason. I really didn’t think that me being a Faili Kurd, being beaten was a very important thing. During that interview when asked about this I got the impression that the question was were you tortured or severely beaten and I said no. But with [first reviewer] I told him I was being slapped on the face and beaten but not to the extent to be torture. When I was stopped by the Basij and asked for ID and when I showed White Card they were not satisfied and held me for two or three hours without a seat and in the end I have to pay a bribe to be allowed to leave.

[25]    I asked how many times this happened. He said, “It’s not like I could say once a month but before Ahmadinejad maybe once in six months or so but after, once a month or so but there were occasions once or twice a week”. I asked when that change occurred. He said, “In 2005 or 2006”.

33        The Reviewer then dealt with some other matters including country information relating to Iran. His findings and conclusion with respect to the appellant’s claims are set out at [33]-[38] of his reasons. At [34] the Reviewer states that he does not accept the appellant’s claims. He explains why at [35]-[38]. Most relevant for the purposes of the appeal are [35] and [36] in which the Reviewer states:

[35]    It is submitted on behalf of [the appellant] that he is at risk of serious harm in Iran because of his Faili Kurdish ethnicity, his statelessness and his presence in a Western country as an asylum seeker. The harm is said to include the real chance of physical injury being inflicted on him by the Basij or other Iranian authorities. The record indicates that the risk of physical harm was given no emphasis by [the appellant] in his initial interview and written claims. Indeed, he stated positively on at least two occasions that he had not been beaten or otherwise assaulted by the authorities. Later, he said that he had been slapped about the head or face on occasion and made to stand in the sun for some hours. This was done to him by the Basij he claims when he was stopped and asked for identification. In his first interview, in answer to the express question “Have you ever been threatened?” he said, “No one has hurt me” and in his first written claims, made with the assistance of an adviser, he made no mention of having suffered any physical harm. However, this subsequently changed to being slapped by and forced to pay bribes to the Basij on a frequent basis. I find it implausible that he would not have mentioned those assaults in his initial interview and written statement if they had happened. I find that they are recent fabrications designed to enhance his initial claims of negative societal discrimination.

[36]    I accept that there is discrimination against minorities in Iran and that this could be unpleasant and distressing. However I also accept the independent evidence from DFAT that the Embassy is not aware of Faili Kurds being targeted because of their ethnicity, that Iraqi refugees, including Faili Kurds, tend to be treated well in comparison with Afghans, that racially-motivated violence against any group in Iran is rare, that the treatment of Faili Kurds after the Iranian election has not changed and that those that are politically active with the opposition risk targeting, but this is not because of their ethnicity. In this regard, the facts which I accept, are that [the appellant] undertook 12 years of schooling, was in regular gainful employment with the same employer for nine years, was able to obtain attestations from his neighbours and the local Mosque supporting his application for citizenship and was able to fund some US$8300.00 for his to travel to Australia .These facts do not amount to circumstances of serious harm and there is no credible evidence to indicate that [the appellant] would be systematically targeted by the Basij or anyone else were he to return to Iran.

THE TRANSCRIPT OF THE JANUARY 2011 INTERVIEW

34        It was during the January 2011 interview with the Reviewer that it became apparent that there may have been a problem in the translation of the May 2010 interview between the appellant and Professor Blay. Early in the January 2011 interview the Reviewer suggested to the appellant that he had never been personally harmed or injured by the Basij or the government authorities although he may have known others who had been. In response to this the appellant said (at p 5):

In previous interviews for example, in the first interview, when they asked me I didn’t say I was not bashed by the Basij I said that, they asked, have you had any serious injury for example, broken nose, broken hand or broken neck. I said no, but yes I was certainly bashed by them on many, many occasions, but just a slap or a kick or a punch and to me something to be expected but not a serious injury. In Iran, it is something very normal and considered natural to be bashed and punched by the Basij.

35        There was then a discussion concerning translation. The interpreter indicated that she had been speaking in Kurdish Faili to the appellant but that he had told her that he felt more comfortable expressing his feelings in Persian. The appellant’s adviser, Ms Murphy, then sought clarification as to the language that was to be used and, in particular, whether the interview should be re-scheduled so that the translation could be conducted in Persian. However, the appellant indicated that he was happy to proceed using Faili Kurdish.

36        At pp 6-7 of the transcript of the January 2011 interview the following was said:

Reviewer:    I just want to clarify some matters that you’ve just told me about. This is a record of the interview you had when you first arrived. It says this... “have you ever been threatened?” Answer “No one has hurt me, my problem is I don’t have citizenship”.

    This is a record of your interview with another reviewer in August last year. It reads as follows... “The panel asked the Applicant if he had ever been assaulted or persecuted by the Basij, he said he had not, but he was constantly abused verbally”. That’s both records of what you’ve said are different to what you’ve told me today. Could you explain that difference please?

    [Long dialogue]

Reviewer:    I’ve got to stop you there sir because I want the interpreter to have time to tell me what you’re saying.

Claimant:    As I mentioned before in my first interview, they asked me whether I had any significant injury for example, broken hand, broken leg broken nose. I said “no”. And I did mention that one of the problems that I had was lack of identity not being able to be or become an Iranian citizen. On my mind and I really thought that that was not important that we talk about those mistreatments or those bashings that I’ve had from Basij. As a Faili Kurd, I’ve had all of that, I’ve been slapped, I’ve been bashed by the Basij, I’ve been abused by them or for example, when I was arrested most of the time I bribed them, I was able to bribe them or just simply beg them to let me go and not take me to their headquarters or any of their offices. So the reason for that is that I was not aware of how important it is to talk about those physical abuses that the Basij has done to me.

37        The Reviewer then asked the appellant why, when the first reviewer (Professor Blay) asked him whether he had ever been assaulted, the appellant answered “no”. The appellant replied that he did not say “no”, that he told the first reviewer that he had been bashed and that he referred to having been slapped by way of example.

38        At this point in the January 2011 interview the appellant’s adviser, Ms Murphy, asked the appellant what language was used during the May 2010 interview. There was then a lengthy exchange (recorded at pp 7-9 of the transcript) involving the appellant, the Reviewer, Ms Murphy and the interpreter (who was translating Kurdish Faili into English and English into Kurdish Faili). During the course of this exchange the following was said:

Claimant:    They brought a very young interpreter an Arabic interpreter about 19 years old and my Arabic is not that good. They said, I told them that I’m not able to speak Arabic very well. They said well if you can’t speak Arabic very well we cannot find any other interpreters at this stage and your interview will be postponed for another 2 months. So I said let us just continue.

Reviewer:    This record says the interpreting was in the Kurdish language.

Claimant:    I spoke in Arabic in my second interview.

Interpreter:    I’m not sure what he means by second interview.

Reviewer:    Alright, well look [the appellant], there will be a recording of this, I will have the recording transcribed. If it is different to what you say you said, then I’ll have it provided to your adviser and you can comment on it and I’ll deal with that when I see what the record says. But as I understand it, you say that that record is wrong.

Claimant:    I clearly explained that this record is from the review that you had last time and he said I spoke Arabic. I said which interview when you said second, first interview - Kurdish, second interview which is RAAS Kurdish interpreter, third interview RSA assessment - Kurdish interpreter. The last interview which was the Merit Review I spoke Arabic and there was an Arabic interpreter present.

Ms Murphy:    And is that the hearing with Professor Blay?

Claimant:    Yes, correct.

Ms Murphy:    Is that what you’re looking at?

Reviewer:    That’s what I’m referring to yes.

Ms Murphy:    Ok.

…

Reviewer:    And [the appellant] you say that the two records that I’ve read to you are not true and that you told both Professor Blay and the entry interviewer about physical assaults on you by the Basij but they are not recorded.

Claimant:    Correct that’s what I said in the first interview and also in the Merit review with Professor Blay. Can I say something?

Reviewer:    Ah yes.

Claimant:    I said that it was not a serious bashing or abuse to have injuries for example to have um my hand, broken hand or broken leg or broken nose or broken head, but I was bashed. The interviewer did not ask me for more details, that question was asked and we moved on. I just gave a very short answer and then moved on.

Reviewer:    When I read the first interview record to you earlier, you answered me by saying...“in the first interview they asked if I had any significant injuries, for example broken hand, leg or nose, I said ‘no’ my problem was lack of identification. I thought it was not important to talk about these mistreatments and bashings by the Basij.[”] Is that true?

Interpreter:    Sorry what was the very last part of it, the very last part?

Reviewer:    That I thought not important to talk about these mistreatments and bashings by the Basij.

Claimant:    Correct.

Reviewer:    Well, [the appellant], which one is it? Did you think it was not important and therefore you didn’t tell about them? Or did you tell about them?

Claimant:    No, I did talk about it and this is even before. I did talk about it, but I did not think that it was important to give more details and explain it, but I did talk about it.

…

The exchange continues on pp 9-11 as follows:

Reviewer:    Well I understand you to be saying to me that this interview was conducted in a different language to the one that it says it was conducted in. Is that right?

Claimant:    Correct, it was in Arabic. The recording document, the recording does exit and you mentioned that you will listen to it, I am talking in Arabic in that interview.

Reviewer:    And I understand you to be saying that you don’t actually know what is recorded in the reasons of Professor Blay.

Claimant:    That is correct.

Reviewer:    Ms Murphy, I’m a little concerned about proceeding with this matter, because, this is you know, Professor Blay has recorded a page, almost a page and a half of what he says was the interview content. Some of it is of significance and I’m proposing to put some of this to [the appellant].

Ms Murphy:    Yep, I understand.

Reviewer:    But I think, I’m going to have to adjourn and probably get a transcript of that interview provided to you so that you can discuss it with him. I mean, I’ll make my mind on the evidence, but this is actually evidence.

Ms Murphy:    Yes that’s right.

Reviewer:    And the fact that some of it may have been conducted in another language that perhaps Professor Blay wasn’t aware of either, may be significant . …

Ms Murphy:    Yes.

…

Ms Murphy:    Ok, righteo, so there’s a couple of things I’m concerned about. I would be concerned if you just used the transcript, I would be really strongly pushing that we actually get an independent interpreter to listen to that to verify.....

Reviewer:    Yes I agree.

THE PRIMARY JUDGE’S REASONS

39        The primary judge considered para 6 of the Further Amended Application at [14] to [89] of his reasons for judgment.

40        The primary judge dealt with para 6(a) and the error appearing in [20] of the Reviewer’s reasons at [22]-[24]:

[22]    The complaint is that the reviewer misunderstood, or misconceived, the applicant’s evidence as to his preferred language. The reviewer said that the applicant said he spoke Faili Kurdish better than Persian. Yet, the transcript of the second interview shows that the applicant said he spoke “Persian better than Faili Kurdish” (2T 7, lines 9-11).

[23]    What can immediately be seen is that the applicant’s assertion that he spoke one language “better” than another cannot be seen as a claim, whether expressly made or clearly arising, as to why he feared persecutory harm if he were to return to Iran. Particular (a) to ground six therefore does not explain the complaint in the ground as initially submitted.

[24]    It may be, of course, that a failure to provide an interpreter in an appropriate language may lead to an applicant being denied the opportunity to present their case. Such conduct could give rise to the breach of a key principle of procedural fairness at common law. This may explain the applicant’s subsequent submissions about a breach of procedural fairness.

41        It is apparent that the primary judge rejected the argument that there was a failure by the Reviewer to consider a claim made by the appellant based upon the appellant’s preferred language. His Honour then turned to consider whether there may have been a failure to afford the appellant procedural fairness. The primary judge said at [29]:

For a charge of a failure of procedural fairness in relation to interpretation to succeed what would need to be shown is that the interpretation provided was so inadequate that the applicant was effectively prevented from giving evidence or, that the errors made by the interpreter were material to the conclusions of the decision maker that were adverse to the applicant (Appellant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230 (“Appellant P119/2002”) at [17], with reference to Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1376; (2001) 115 FCR 1 at 6 [27]; Mazhar v Minister for Immigration and Multicultural Affairs [2000] FCA 1759; (2000) 183 ALR 188 (“Mazhar”); Ismail v Minister for Immigration and Multicultural Affairs [1999] FCA 1555; (1999) 59 ALD 773 at 782 [25] and Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507; (1999) 92 FCR 6.

42        His Honour was satisfied that there had been no failure by the Reviewer to afford the appellant procedural fairness. He was satisfied that the Reviewer did not place any reliance upon the appellant’s May 2010 interview with Professor Blay in making the adverse credibility finding and that the June 2011 interview with the Reviewer was conducted with the appellant speaking Persian.

43         The primary judge dealt with para 6(b) and (c) at [43]-[60] of his reasons. In short, his Honour was satisfied that the matters complained of in para 6(b) and (c) were examples of the appellant seeking to cavil with factual findings made by the Reviewer in a manner that invited impermissible merits review.

44        As to the point raised in para 6(b), the primary judge was of the view that it was open to the Reviewer to find that during the appellant’s initial interview, the appellant did not emphasise matters of actual physical harm upon which the appellant later relied (see [48]-[53] of the primary judge’s reasons). With regard to para 6(c), the primary judge concluded that the Reviewer’s interpretation of the prior statements by the appellant was reasonably open.

45        The primary judge dealt with para 6(d) of the Further Amended Application at [61]-[78] of his reasons. His Honour concluded that the Reviewer made an error in para [35] of his reasons in finding that the appellant “[l]ater…said that he had been slapped about the head or face on occasion and made to stand in the sun for some hours.” The primary judge considered that, read in context, this reflected a view of the evidence to the effect that the appellant had said nothing about being made to stand in the sun in either the initial interview (ie. the November 2009 interview) or in the appellant’s statement of claims (lodged by the appellant’s migration adviser in December 2009). However, the primary judge was of the view that this was an error of fact that was of no consequence to the outcome of the review: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [63].

46        The primary judge dealt with para 6(e) of the Further Amended Application at [79]-[83] of his reasons. His Honour concluded that there was no legal error and that it was open to the Reviewer to find that the appellant made no mention of being slapped in either his November 2009 interview or in his statement of claims.

CONSIDERATION

47        Like the primary judge, I have had considerable difficulty relating some of the arguments put by counsel for the appellant to para 6 of the Further Amended Application. Nevertheless, I recognise that an error arising out of a mistaken view of the appellant’s claims or evidence might be open to a number of different characterisations. I have therefore approached the matter more broadly than ground 6 of the Further Amended Application and the ground of appeal are framed. On this basis, the question to be addressed is whether the primary judge should have found that any of the postulated factual errors referred to in para 6(a)-(e) of the Further Amended Application was made and, if so, whether it involved a legal error that would justify the grant of declaratory relief.

Paragraph 6(a) of the Further Amended Application

48        It is common ground that [20] of the Reviewer’s reasons contains an error in that it suggests that the appellant claimed to speak better Faili Kurd than Persian. Before the primary judge, and again on appeal, the appellant sought to rely upon the error in [20] of the Reviewer’s reasons in two ways. First, it was submitted that the Reviewer took into account an irrelevant consideration, namely, that the appellant’s preferred language was Faili Kurd. Secondly, it was submitted that it led the Reviewer to misunderstand, and therefore not consider, the appellant’s claims.

49        A particular fact, or evidence relevant to its proof, is capable of constituting a relevant consideration which a decision-maker is bound to have regard to and which, if overlooked or misunderstood, can vitiate an administrative decision. This may follow from the express provisions of the Act pursuant to which the decision-maker acts or by implication from the subject-matter, scope and purpose of the Act: Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 39-40 per Mason J.

50        Whether a particular fact or piece of evidence constitutes a relevant consideration in the sense that Mason J used that expression in Peko-Wallsend may depend upon the nature and significance of the fact or evidence in question to the decision under review. Robertson J explained in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [111]:

    In my opinion there is no clear distinction in each case between claims and evidence: see SHKB v Minister for Immigration and Multicultural and Indigenous Affairs at [24], set out at [69] above. The fundamental question must be the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error. In my opinion the distinction between claims and evidence provides a tool of analysis but is not the discrimen itself. Further, it is important not to reason that because a failure to deal with some (insubstantial or inconsequential) evidence will, in some circumstances, not establish jurisdictional error, then a failure to deal with any (substantial and consequential) evidence will also not establish jurisdictional error.

51        There are a number of reasons why the error appearing in [20] of the Reviewer’s reasons did not have any significance to the outcome of the review.

52        First, when he became aware, during the course of the January 2011 interview, that there may have been a problem with the translation that took place during the appellant’s May 2010 interview with Professor Blay, the Reviewer decided to terminate the interview and arrange for an independent translation of the May 2010 interview to be obtained.

53        Secondly, the June 2011 interview was conducted with the assistance of an interpreter who translated from English to Persian and Persian to English. In other words, during the course of the June 2011 interview the appellant communicated through an interpreter in the appellant’s preferred language.

54        Thirdly, as noted by the primary judge at [26] of his reasons, at the June 2011 interview the appellant told the Reviewer that it did not matter whether he had a Kurdish Faili or Persian interpreter, but since he lived in Iran for 31 years he speaks Persian better than he speaks Kurdish Faili.

55        Fourthly, at the June 2011 interview the Reviewer put several pages of the independent translation of the May 2010 interview to the appellant which he agreed was correct. The appellant was also asked by the Reviewer whether the appellant wanted to say anything else about the interpreting or his claims. The Reviewer recorded the appellant’s response at [24] of his reasons as follows:

… He said, “In the first interview on Christmas Island, I am a Faili Kurd and my problem is no nationality and whenever there were difficulties with the Basij or Police that was the reason. I really didn’t think that me being a Faili Kurd, being beaten was a very important thing. During that interview when asked about this I got the impression that the question was were you tortured or severely beaten and I said no. But with [first reviewer] I told him I was being slapped on the face and beaten but not to the extent to be torture. When I was stopped by the Basij and asked for ID and when I showed White Card they were not satisfied and held me for two or three hours without a seat and in the end I have to pay a bribe to be allowed to leave.

56        Significantly, the appellant did not claim in his response that he had been misinterpreted or that he was at any disadvantage as a result of the November 2009 interview being conducted in Kurdish Faili rather than Persian. It is true that the appellant said that he was under the impression that the interviewer wanted to know whether he had been tortured or severely beaten. However, the appellant did not dispute that he stated to the departmental officer during the November 2009 interview when asked whether he had been threatened that “No one has hurt me, my problem is I don’t have citizenship”.

57        It is important to note that there was no evidence from the appellant that he had any difficulty communicating in Kurdish Faili. It is clear from the transcript of the January 2011 interview that the problem with the translation of the May 2010 interview with Professor Blay was not that it was conducted in Kurdish Faili, but that it was conducted in Arabic, a language which the appellant said he was not able to speak very well.

58        In this Court the appellant argued that in considering the content of the appellant’s November 2009 interview and the January 2010 interview, the Reviewer failed to have regard to the fact that they were not conducted in the appellant’s preferred language (Persian), but another language (Kurdish Faili), and that this may have resulted in miscommunication and misunderstanding. On this view, the appellant’s complaint is not so much that the Reviewer took into account an irrelevant consideration, but that the Reviewer overlooked a relevant consideration, that is to say, that the November 2009 interview and the January 2010 interview were conducted in Kurdish Faili rather than Persian.

59        This argument was not raised by the appellant below or in his notice of appeal. In those circumstances, I do not think the appellant should be permitted to rely upon it on appeal. In any event, I do not think the argument has any substance. Certainly the applicant sought to qualify some of the statements he made during the November 2009 interview with explanations that were not accepted by the Reviewer. And some of his evidence to the Reviewer might suggest that the appellant misunderstood the questions asked of him. More important, however, is the fact that the appellant did not claim that he was under any disadvantage as a result of the November 2009 interview or the January 2010 interview being conducted in Faili Kurd rather than Persian or that there was any error in the translation, even though he was given ample opportunity by the Reviewer to make such a claim if he wished to do so.

60        In my view the error in para [20] of the Reviewer’s reasons was of no consequence to the outcome of the review. It cannot justify a finding that the Reviewer committed an error of law by either failing to take into account a relevant consideration or taking into account an irrelevant consideration. Nor could it lend any support to an argument that the appellant was denied procedural fairness by the Reviewer.

Paragraph 6(b) and (c) of the Further Amended Application

61        I agree with what the primary judge said concerning para 6(b) of the Further Amended Application. Whether or not the risk of physical harm was given emphasis by the appellant in his November 2009 interview and in his statement of claims is a matter of opinion involving matters of impression and degree. The view that the appellant gave no emphasis to the risk of physical harm – at least when compared to the emphasis placed upon the economic and social consequences of the appellant’s lack of citizenship – was a view that was open to the Reviewer albeit one that others might not share.

62        The complaint taken up in para 6(c) of the Further Amended Application raises similar issues. It was open to the Reviewer to find that the appellant had “stated positively … that he had not been beaten or otherwise assaulted.” It was open to the Reviewer to find that the appellant made a concession to this effect in the November 2009 interview during which the appellant was recorded as having said that no one had hurt him, and that his problem was that he lacked citizenship. In this regard, I do not think the word “assaulted” should be given a technical meaning given the context in which it is used. In the context of a consideration of the risk of serious harm, I understand the Reviewer to be referring to some form of serious physical abuse. Similarly, in the January 2010 interview, the appellant is recorded (as quoted in para [15] of the Reviewer’s reasons) as saying that the “Basij did not beat him but abused and humiliated him.” Again, it was open to the Reviewer to take this view of the evidence, albeit one that others might not agree with.

Paragraph 6(d) of the Further Amended Application

63        I have reproduced para [35] of the Reviewer’s reasons at [33] above. In that paragraph the Reviewer states that the appellant said on at least two occasions that he had not been beaten or otherwise assaulted by the authorities but that “[l]ater, he said that he had been … made to stand in the sun for some hours.” Paragraph 6(d) asserted that this was wrong because the appellant had stated in his initial claims and the January 2010 interview that he had been made to stand in the sun.

64        The primary judge found that the Reviewer was mistaken in stating that it was only “later” that the appellant said that he had been made to stand in the sun. The correctness of this finding by the primary judge is challenged in the notice of contention.

65        I agree with the primary judge that the Reviewer was in error in stating that the appellant “later” said that he had been made to stand in the sun. The time upon which this statement fixes can only be the time at which the appellant submitted his statement of claims. The latter included a description of the appellant being “asked” by the Basij to stand in the sun. Since this claim was made in the appellant’s statement of claims it is necessarily incorrect to say that it was first made some time after that document was submitted. I reject the Minister’s notice of contention.

66        However, I agree with the primary judge that this error in the Reviewer’s reasons was a factual error that was of no consequence to the outcome of the review. This is not a case where it can be said that some misunderstanding of the evidence has resulted in the decision-maker not considering a claim at all or not considering a claim in light of the evidence. Each of the appellant’s claims was considered by the Reviewer. The error reflected in his use of the word “later” suggests that the Reviewer may have overlooked the reference in the appellant’s statement of claims to being made to stand in the sun. Even so, it does not follow that the appellant’s claim that he was made to stand in the sun was overlooked. On the contrary, it is clear that his evidence to that effect was expressly considered by the Reviewer.

67        In paragraph [35] of his reasons, the Reviewer concluded that the appellant’s accounts of assaults were “recent fabrications designed to enhance his initial claims.” I do not understand this to be a reference to the standing in the sun incident, but rather to the incidents involving being slapped about the head or face by the Basij about which the appellant gave evidence. There was no reference to any such incident in either the November 2009 interview or the appellant’s statement of claims. And, as previously mentioned, in the appellant’s January 2010 interview, the appellant stated that the Basij did not beat him. In the circumstances, the finding that the appellant’s accounts of assaults were “recent fabrications designed to enhance his initial claims” was one that was open to the Reviewer.

Paragraph 6(e) of the Further Amended Application

68        I agree with the primary judge that it was open to the Reviewer to find that the appellant made no mention of being slapped in either his November 2009 interview or in the appellant’s statement of claims, which is what I understand the Reviewer to be saying in the relevant part of [35] of his reasons. In particular, I do not understand the Reviewer to have made a finding that the appellant made no mention of having to pay bribes in the appellant’s statement of claims.

DISPOSITION

69        The appeal will be dismissed. The appellant must pay the first respondent’s costs of the appeal.

Associate:

Dated:    17 January 2014