Federal Court of Australia

CQI18 v Minister for Home Affairs [2021] FCA 1168

ORDERS

THE COURT ORDERS THAT:

1.    The time in which an appeal from the orders of the Federal Circuit Court made on 19 November 2020 may be brought be extended to 19 April 2021.

2.    Leave to appeal be refused in relation to the proposed ground relating to apprehended bias, set out at particular [1(g)] of the applicant’s proposed amended notice of appeal sent to the Court on 12 August 2021.

3.    Leave otherwise be granted to the applicant to file, and rely upon, the proposed amended notice of appeal sent to the Court on 12 August 2021.

4.    The appeal be allowed.

5.    The orders of the Federal Circuit Court made on 19 November 2020 be set aside, and in lieu thereof, order:

(a)    the time in which a judicial review application may be brought in the Federal Circuit Court be extended to 8 February 2019.

(b)    the decision of the second respondent made on 27 September 2012 be set aside.

6.    On or before 4pm on 12 October 2021, the parties file any further proposed orders they submit it is appropriate for the Court to make, based on its reasons for judgment, together with a joint submission supporting any further proposed orders.

7.    On or before 4pm on 12 October 2021, the first respondent file and serve any submissions as to why the costs of the judicial review application and the appeal should not follow the event.

8.    If submissions are filed pursuant to order 7, the applicant have leave to file any submissions in reply on or before 4pm on 26 October 2021.

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

REASONS FOR JUDGMENT

MORTIMER J:

Introduction

1    This is an unusual case. It concerns the judicial review of a recommendation by the second respondent, an “Independent Merits Reviewer” (the reviewer). A little more will need to be explained about what kind of decision this is, and how it came to be reviewable in the (then) Federal Circuit Court, but in summary this decision was not made under s 65 of the Migration Act 1958 (Cth), nor under any of the merits review processes contained in the Act. It was made pursuant to a process established by the federal Executive, for the purpose of informing a decision whether or not to permit an individual to make an application for a protection visa. This was a process of the kind which was the subject of the High Court’s decision in Plaintiff M61/2010E v Commonwealth [2010] HCA 41; 243 CLR 319. That case was decided 11 years ago. Somehow, the present applicant has remained, or has been treated as remaining, stuck in that process. Counsel for the first respondent, the Minister for Home Affairs, informed the Court that process no longer exists and has instead progressed through several further iterations, which may or may not be substantively the same.

2    The parties proceeded on the basis that the applicant required both an extension of time in which to bring the appeal and leave to raise new grounds of appeal. At the hearing, and quite properly having reviewed the affidavit material to which I refer below, the Minister did not oppose an extension of time being granted. Nor did the Minister actively oppose leave on one aspect of what was ultimately expressed as a single ground of appeal, the applicant having sent a proposed amended notice of appeal by email to the Court and the Minister shortly before the hearing.

3    For the reasons which follow, an extension of time will be granted. The Court’s acceptance of evidence adduced on behalf of the applicant means leave to argue the first aspect of the ground of appeal is not required. Leave to raise the second aspect of the ground of appeal will be refused. The appeal will be allowed. Although the ultimate conclusion of the Court is that leave was not required for the first aspect of the ground, for convenience and ease of reference, I refer to the applicant as the “applicant” rather than the “appellant” throughout.

4    The evidence is that counsel for the applicant has represented the applicant on a pro bono basis for three continuous years (having accepted a pro bono referral directly from this Court on 7 August 2018), and in that time has performed between 70 and 90 hours of unpaid legal work on matters relating to the applicant’s case. The Court expresses its gratitude to counsel, and to those lawyers from the Asylum Seeker Resource Centre who have instructed him, for continuing to act for the applicant, assisting him to access the judicial review and appellate processes for which the law provides, and thereby assisting the Court to consider and determine his proceedings in a fair and complete way.

Background

The applicant

5    On 21 July 2010, the applicant entered Australia at Christmas Island after the boat that had been carrying him was intercepted. On the same day, he was interviewed and asked a series of questions through an interpreter. The questions and answers were recorded in a document that was titled “Biodata (Persian)” and dated 21 July 2010. Parts of this document, and the reviewer’s findings about it, are central to the single ground of appeal.

6    It is common ground that the document was available to the reviewer (and relied upon by her), but it was not available to the applicant, and he was not asked about it during his interview with the reviewer. The applicant’s legal representative, Ms Rhodes, described how she became aware of the biodata document. Ms Rhodes deposed at [11] of her affidavit:

On 3 May 2020, I located a document titled “Biodata (Persian)” within material received by the ASRC from the First Defendant [the Minister] by way of an administrative release of a previous Freedom of Information request.

7    Ms Rhodes deposed to having listened to the tape of the review hearing and at [12] deposed:

Nowhere in the recordings did I hear the Applicant being shown or taken to the Biodata document, or it being put to him that page 2 of that document recorded him arriving on a passport in his own name.

8    That evidence was not challenged by the Minister, nor were any submissions to the contrary of this evidence put on the appeal.

9    Although it is no part of the Court’s task to make findings of fact, the following matters can be observed about the biodata document. These matters are relevant to the assessment of the relevance and significance of the biodata document to the reviewer’s decision and her own fact finding.

(a)    The document was only signed by the interpreter and it was not signed by the applicant. That may be consistent with information subsequently provided by the applicant, to the effect he was illiterate: see below. On the face of the document, because of the hand writing, it may be a clearly available inference that the applicant’s name appears to have been written by the interpreter.

(b)    The document appears to record that the applicant spoke “Kurdish – Farni”. “Farni” may be a misspelling of “Farsi” but it may refer to something else. Only “Kurdish” is circled in the answers, yet the whole document is headed “Biodata (Persian)”. Thus, it is not obvious from the face of the document what is the script used in the answers to the questions in the document. The most that can be said is that it is a foreign script.

(c)    On the first page, the applicant’s answer to the question of his citizenship is “No citizenship”.

(d)    The document gives the applicant’s most recent previous addresses as being in Iraq.

(e)    In answer to the question whether the applicant had any “passports, identity documents or military documents”, the following was recorded:

(i)    In the column under “type of card/document” the word “IRANIAN” appears, followed by a word which is not legible, but does not appear unequivocally to be “passport”.

(ii)    In the column under “current location”, on the same line as the ‘IRANIAN’ entry, is a word counsel submitted was illegible.

(iii)    In the next two lines across three columns are entries in a foreign script. There is an entry which records the word “Tehran” and another entry which records “IRAQ”. In other words, these lines contain entries partly in English and partly in a foreign script, making it more difficult to understand them.

(iv)    In the first column on the fourth line in the column under “type of card/documentation” are the words “Driver licence”. There are no other entries for “where issued” or “current location” for this document.

(v)    Outside the left side of the table are some handwritten words. The first line of those words is, the applicant submitted, illegible. The Minister submitted it read ‘OWN’. I accept that ‘OWN’ could be correct.

(vi)    The second line has the word “name”.

(vii)    The third and fourth lines have the words “in my name”.

(viii)    The fifth and sixth lines have the words “Paid money”.

(ix)    It is not clear, but the plainest inference seems to be the handwriting is the same as that inside the table and may therefore be the interpreter’s writing.

(x)    The words written outside start just below the ‘IRANIAN’ entry on the first line of the first column and are written downwards against the two entries in foreign script and the drivers licence.

(f)    It is entirely unclear, and equivocal, what meaning should be ascribed to all these entries, whether read separately or as a whole. There is nothing “natural” or “obvious” about their meaning. The interpreter has declared at the end of the document that it was his professional opinion that the applicant understood the questions. In the absence of any evidence to the contrary, it may be assumed that the interpreter has recorded what the applicant told him.

(g)    I accept it is possible that, read together, what might be conveyed is that the applicant was answering the questioned posed by this entry by stating he held an Iranian passport in his own name, for which he paid money. There is doubt about this because the word after the word “IRANIAN” is illegible. It does not appear to be “passport”: unlike most other English words written in the answer, it is simply unclear what the word is. It might be “passport”, it might not be. At [22] the reviewer appears to have decided it did say “passport”. However, this does not negate the possibility that what the applicant said he had was a false passport, which is what the words “paid money” might suggest.

(h)    At [22] of her reasons, the reviewer attributed the words “paid money” to the driver’s licence (“a driver’s licence for which he paid money”). It would appear to be linked to the finding at [24] based on the applicant’s own evidence that he had a driver’s licence, which he paid someone to organise for him and which he was unsure was real or fake; however the applicant also gave evidence he paid a smuggler for his passport: see [30] of the reviewer’s reasons. There is no explanation from the reviewer as to why this choice for the driver’s licence was made in her findings – another indication of how these adverse inferences were drawn against the applicant when these were matters on which he should have been heard. This was his own personal history. Acknowledging the likely difficult circumstances for the interpreter, and not being critical, the information in the document had been recorded in a somewhat haphazard and messy way, in two different scripts and two different languages. This had occurred on the day the applicant had arrived at Christmas Island after what can be taken to have been an arduous boat journey. Key contents of the document are susceptible to a number of different interpretations. For example, the words outside the box could be referable to the entries in foreign script. They could also be referable to the drivers licence – including “own name”. All of this might well have been explained by the applicant, had the document been drawn to his attention by the reviewer. The interpreter at the review hearing may also have been able to translate the entries in foreign script. As it was, none of these things occurred.

(i)    Finally, the whole of the table where these answers are given is struck through with a diagonal line. In other parts of the biodata document, tables are struck through with the same kind of line where no answer is given. Neither counsel suggested it was possible to explain what the strikethrough meant from simply looking at the document. It is not possible to tell from the copy in evidence whether it was struck through before or after the text was entered into and beside the table.

10    On 6 September 2010, an officer of the Department of Immigration and Citizenship conducted an interview with the applicant at the detention centre on Christmas Island. Via an interpreter, the applicant claimed he was stateless. He claimed he was a “Fahli Kurd”, born in Iraq in 1984 but deported from that country with his family to Iran when he was 6 or 7 years old, because the family had no documents. He explained his parents ultimately returned to Iraq because they “had no hope” in Iran, but he and his siblings stayed in Iran. He claimed he lived illegally in Iran since then, and did not know where his parents were in Iraq. He claimed his brother, who had been politically active in an Iranian political party in Iran, had been executed in Iran and he feared he would be persecuted by Iranian authorities for the same reason. He claimed he had no rights to go to Iraq and would not be accepted there.

11    As part of the process in September 2010, a document entitled “Personal Particulars for Character Assessment” was completed. It is unclear who completed it. A number of aspects of this document should be noted. On the first page where a question asked “Write your name in your own language or script”, there is an entry in a foreign script with the words in English underneath:

(written by Interpreter)

12    Counsel for the applicant submitted, and I accept, that the plainest inference to draw from this might be that the applicant was claiming to be unable to write his name in any script, and that this was consistent with his claim to be illiterate. Question 13 in this document asked about details of “all passports issued to you”. Under this is the following entry:

Unknown- false        Iran/Iraq not

Smuggler took it    sure

13    The plainest inference from this entry might be that the applicant was claiming the only passport he had was a false one, he was not sure whether it was issued by Iran or Iraq and the smuggler who arranged for his passage to Australia had taken the passport.

14    Similarly, question 27 asked about the applicant’s “current travel document”, and the response provided was:

False passport

15    The number and place of issue were said to be “unknown”.

16    At the end of the document, in the signature panel, there was an “X” placed with the words:

(his mark)

17    Again, I accept that the plainest inference to draw from this might be that the applicant was claiming to be unable to write his name, and that this was consistent with his claim to be illiterate.

18    In a further document which dates from the same period, headed “request for RSA and statement of claims”, the following entries should be noted. The applicant described his ethnicity as “Faili Kurd”, and his language as Kurdish, indicating he can only speak it and not read it or write in it. In response to a question about citizenship, the entry is “stateless”. There is also the following entry:

I have never held citizenship of any Country.

19    In answer to questions about how he travelled to Australia, the applicant nominated “Emma Khomyni Tehran” as the airport he left from. I infer this is intended to be a reference to Imam Khomeini airport in Tehran. He stated he:

Left with false documents.

20    In answer to the next question he identified he had a “False Passport” and that the smuggler organised his passport. In answer to a question about having difficulties obtaining a document in his “home country” appears the answer:

I am Stateless and cannot obtain a genuine passport or documents.

21    The form then indicates he no longer had any valid documents for return travel to Iran.

22    Again, this document was signed with an “X” with the words “(his mark)” appearing next to it. A statement setting out the applicant’s claims was also attached. It is not necessary to describe that document in detail: suffice to say the core components of his claims, his statelessness and the absence of a passport are all repeated in this statement.

23    On one view, the most natural and obvious inferences from the relevant entries in the biodata document, considered with the information provided in the period after that when the applicant was asked similar questions, were that the applicant was illiterate, that he had left Iran on a false passport and did not know whether it purported to be issued by Iran or Iraq, and a smuggler took that passport. That is not to suggest the reviewer was bound to reach those conclusions, but they were clearly available inferences. Instead, the reviewer reached different conclusions, adverse to the applicant. Quite how she did so from the information or evidence before her is something I explore further below. One thing that is clear is that because this was about his personal history, the applicant could be expected to have shed light on the unclear and equivocal contents of the biodata document. Whether or not he was believed would, of course, have been a matter for the reviewer after hearing him and considering what he said in its proper context. However he was, as I explain below, entitled to an opportunity to explain what he said he told the interviewer, and to confront the adverse inferences the reviewer sought to draw from the document.

The assessment process

24    It was common ground that, in September 2010, the process considered by the High Court in Plaintiff M61 was the process undertaken in relation to the applicant. Indeed, this was in the period the High Court judgment in Plaintiff M61 was reserved.

25    This process was a process determined by the federal Executive. It was undertaken for the purpose of informing the Minister’s decision under s 46A of the Migration Act whether to lift the “bar” on people like the applicant making protection visa applications, and instead allowing such people to do so: see generally Plaintiff M61 at [37]-[49], [62]-[71].

26    At the Court’s request, the Minister produced a copy of the policy document governing the conduct of these executive processes. It is entitled Guidelines for the Conduct of Independent Merits Reviews and Independent Protection Assessments, dated June 2012 and was said by the Minister to be the version in force at the time of the decision about which the applicant sought judicial review. The Guidelines were tendered without objection on the appeal. I have assumed these were the version applicable at the time of the reviewer’s decision in September 2012.

27    Although somewhat lengthy, the introductory parts of these guidelines should be set out as they are relevant to the process undertaken respect of the applicant:

1    Introduction

1.1    Purpose

These guidelines are provided to give general advice and assistance to independent merit reviewers and independent protection assessors to enable them to conduct fair, lawful and efficient reviews and assessments. They are not intended to prescribe independent merits review (IMR) or independent protection assessment (IPA) processes.

1.2    Background

As a party to the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (‘Refugees Convention’) and pursuant to the Migration Act 1958 (the Act), Australia has protection obligations to a person who has entered Australian territory. These obligations extend to people who have entered Australia’s territorial seas.

From 24 March 2012, following amendments to the Act, Australia also has protection obligations to people who meet complementary protection criteria under the Act relating to other international human rights instruments (the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)).

Earlier amendments to the Act on 27 September 2001 introduced a system for processing people who were seeking protection in Australia and who entered Australian territory at an excised offshore place and became unlawful non-citizens because of that entry (section 5 (1) of the Act). Such persons are described as Offshore Entry Persons (OEPs). On arrival, all OEPs are initially detained and transferred to the immigration detention facility at Christmas Island for processing.

Under these legislative provisions, OEPs who are unlawful non-citizens cannot make a valid visa application (section 46A (1) of the Act), including a protection visa, in Australia unless the Minister for Immigration and Citizenship (‘the Minister’) allows in the public interest such an application to be made (section 46A (2) of the Act).

1.3    Entry process for offshore entry persons

The entry process generally commences as soon as possible after the OEP’s arrival on Christmas Island. The entry process involves the OEP undergoing interviews conducted by a number of different agencies and several areas within the Department of Immigration and Citizenship (the Department).

An initial entry interview is conducted to attempt to establish the person’s identity and citizenship and the purpose of their travel to Australia.

If a full entry interview is conducted the Unauthorised Boat Arrival Entry Interview Form is used and the interview is recorded wherever possible (this form will be attached to the Departmental file which is provided to the IMR/IPA).

1.4    Refugee status assessment process

On 29 July 2008, the Minister announced a processing regime for OEPs claiming Australia’s protection (‘claimants’) as part of the then Government’s new policies and procedures for immigration detention. One aspect of these arrangements was an IMR for claimants receiving a negative outcome on their RSA.

Previously, such reviews were undertaken by a senior officer of the Department. Under these arrangements claimants who received negative Departmental RSA outcomes can, on request, have their claims assessed by IMRs, who are appointed by the Minister.

Under these arrangements, claimants are provided with publicly funded independent advice and application assistance under the Immigration Advice and Application Assistance Scheme (IAAAS). This assistance is available for the initial assessment of the RSA and any subsequent request for independent merits review.

OEPs who raise claims or information which prima facie may engage Australia’s protection obligations have such claims examined by the Department under a Refugee Status Assessment (RSA) process (refer to Attachment A).

The RSA process is bound by certain provisions of the Migration Act 1958 (‘the Act’), the Migration Regulations 1994 (‘the Regulations’) and Australian case law that are relevant to establishing whether a person is owed protection. The common law rules of natural justice or “procedural fairness” are observed by RSA officers.

The RSA process assists the Minister in the exercise of his discretion to allow an application for a visa from an OEP. The Department’s refugee status assessment officers (‘RSA officers’) are responsible for assessing protection claims made by an OEP.

Once the Department has completed an RSA, any OEPs found to be owed Australia’s protection obligations are referred to the Minister for consideration under section 46A (2) of the Act. If the Minister considers that it is in the public interest to do so, he may determine that an OEP can make an application for a specified class of visa (in most cases the Minister specifies that the person may apply for a protection visa).

1.5    Independent merits reviews (IMRs)

The Minister appointed a number of reviewers to conduct independent merits reviews. These appointees are employed by a private employment agency and are independent in their decision making from the Department.

IMR arrangements were established to enable the conduct of independent merits reviews. IMR case support for reviewers was provided from 2008 by the Department. However, from 1 June 2010 the operations supporting the IMR function were established separately from the Department and reviewer and staff numbers and logistical and case management support were significantly scaled up.

Reviewers are bound by Australian case law, certain provisions of the Migration Act 1958, are required to observe the rules of natural justice and to provide procedural fairness in conducting IMRs. Their recommendations are reviewable by Australian Courts.

The main elements of the IMR process are referred to in subsequent Sections. At the conclusion of an IMR, the reviewer provides a report with a recommendation to the Minister as to whether the claimant is owed protection by Australia. See Attachments H and I

(Attachments not included in extract.)

28    The Guidelines refer also to a subsequent assessment process, the Protection Obligations Determination process, which the Minister’s counsel informed the Court commenced at a subsequent stage and replaced the process to which the applicant was subjected. That process also had two components: an initial assessment and, if that was negative, a merits review.

29    At least some of the documents about the applicant’s history and claims I have described above appear to have been completed and submitted by the applicant’s appointed migration agent as part of this Refugee Status Assessment Process, and the Independent Merits Review Process which followed a negative outcome. Submissions were also made on behalf of the applicant by the migration agent. The applicant was also interviewed in person, with an interpreter, as part of this process.

30    On 8 December 2010, an officer determined that the applicant did not meet the definition of a refugee in the 1951 Convention Relating to the Status of Refugees, as amended by the 1967 Protocol Relating to the Status of Refugees (Refugees Convention). Relevantly, the officer found (with my emphasis):

Having carefully considered all of the available evidence, I find that

•    The claimant is not a citizen of any country;

•    The claimant is a former habitual resident of Iran and Iraq;

•    The claimant does not have a right to enter and reside in, or nationality of, and therefore effective protection in, a third country;

•    The cessation clauses in Article 1C (other than sections 1C(5) or (6)) of the Convention do not apply to the claimant;

•    There is no information before me which indicates that the claimant comes within one of the exclusion clauses in Articles 1 D, 1 E and 1 F of the Convention;

•    Article 33(2) of the Convention does not apply to the claimant;

•    The harm that the claimant fears is for a Convention reason; and

•    The harm that the claimant fears is sufficiently serious to amount to persecution.

Having carefully considered the claimant’s account in terms of detail, internal consistency and credibility in relation to country information, I find that there is not a real chance of persecution of the claimant occurring in Iran. I therefore find that the claimant’s fear of persecution, as defined under the Convention, in Iran is not well-founded.

Having carefully considered the claimant’s account in terms of detail, internal consistency and credibility in relation to country information, I find that there is not a real chance of persecution of the claimant occurring in Iraq. I therefore find that the claimant’s fear of persecution, as defined under the Convention, in Iraq is not well -founded.

31    The officer’s findings regarding the applicant’s fears about persecution not being well founded included that:

(a)    The officer could find no authoritative independent information that Faili Kurdish people in Iran are subject to persecution on the basis of their ethnicity or race.

(b)    The officer could find no authoritative independent information that stateless people in Iran are subject to persecution on the basis of their lack of nationality.

(c)    Although the officer recognised authoritative independent information that an imputed association with the Partiya Jiyana Azada Kurdistan (PJAK) could provide a basis for fear of persecution in Iran, the officer did not believe, and would not give the benefit of the doubt to, the applicant’s claims about his deceased brother. The officer reached this position because the applicant’s claims could not be confirmed using independent information, and because of inconsistencies between various statements made by the applicant on this topic.

Reviews of the RSA officer’s decision

32    The bolded findings in the extract at [30] above indicated to the applicant that it had been accepted he was stateless. Although the applicant’s argument is not put this way, the principles in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 at [40] and [43] may well also support the applicant’s contentions about why it was a denial of procedural fairness for the reviewer not to have confronted the applicant with her own interpretation of the effect and significance of the contents of the biodata document for his claim that he was stateless.

33    The applicant was duly notified of his entitlement to request an Independent Merits Review (IMR) of the RSA officer’s decision. On 10 January 2011, the appellant availed himself of this right. His request for an IMR was supported by the oral and written evidence he produced in his RSA application, as well as further written submissions made on his behalf by his migration agent on 16 May 2011 and an interview (via an interpreter) with an IMR reviewer on 23 May 2011.

34    The IMR was not successful and the reviewer recommended the applicant not be recognised as a refugee. The IMR reviewer did not make an explicit finding on the applicant’s nationality; however, like the RSA officer, and notwithstanding his concerns about the applicant’s credibility generally, the reviewer appeared to accept the applicant’s claim that he was a stateless Faili Kurd whose place of habitual residence was Iran. Like the RSA officer, the reviewer did not believe the applicant’s claims about his brother (nor did he believe the applicant’s claims about his own activities in PJAK).

35    The applicant sought judicial review of the IMR decision, and was successful. By orders made on 23 April 2012, the then Federal Magistrates Court granted a declaration that:

In recommending to the first respondent that the applicant not be recognised as a person to whom Australia has protection obligations, the second respondent failed to afford the applicant procedural fairness by failing to consider an integer of the applicant’s claims.

36    The effect of this declaration was, properly, that a further IMR was conducted, by a different reviewer. This process was undertaken through 2012.

37    Also in 2012, the applicant’s mental health began to deteriorate. On 10 March 2012, he was assessed by a psychiatrist visiting Christmas Island as “being severely affected by the detention environment”. The applicant began to exhibit psychotic symptoms. He was transferred to Villawood Immigration Detention Centre in April 2012, in order to secure better access to emergency psychiatric assistance. In June 2015, the applicant was diagnosed with chronic schizophrenia.

38    As part of the resumed IMR process, the applicant was interviewed again, on 28 August 2012, after he had been transferred to Villawood.

39    On 27 September 2012, the reviewer recommended that the applicant not be recognised as a person to whom Australia owes protection obligations, under either the Refugees Convention or under the complementary protection provisions in the Migration Act. She expressed herself in the following terms:

CONCLUSIONS

198.    I am not satisfied that the claimant is a person to whom Australia has protection obligations under the Refugees Convention. Therefore, the claimant does not satisfy the criterion set out in s 36(2)(a).

199.    Having concluded that the claimant does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa). I am not satisfied that the claimant is a person to whom Australia has protection obligations under s 36(2)(aa).

200.    The claimant does not satisfy s 36(2)(b) or (c) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa). Accordingly, the claimant does not satisfy the criteria in s 36(2) for a protection visa.

RECOMMENDATION

201.    I find that the claimant, [redacted], does not meet the criteria for a Protection (Class XA) visa set out in s 36(2) of the Migration Act 1958. Accordingly, I recommend that the claimant not be recognised as a person to whom Australia has protection obligations or as a member of the same family unit as such a person.

40    As I indicated during argument, the entirety of the reasons, and these conclusions, look very much like the decision of a delegate under s 65 of the Migration Act. The similarity would appear to be explained by the Guidelines. A flow chart in the Guidelines makes it clear that if either a RSA officer or an IMR reviewer makes a positive recommendation, a permanent protection visa is granted. This lifting of the “bar”, while a necessary step, does not mean that an entire assessment process can be undertaken again, at least on protection criteria (noting there may be criteria such as health criteria that need to be assessed). Rather, this IMR assessment stands for visa purposes. So much is confirmed in the correspondence sent to the applicant:

It is departmental policy to accept independent reviewers’ recommendations.

41    The reviewer’s reasons for her recommendation are lengthy. It is not necessary to rehearse them in detail, but it is necessary to refer to the parts relevant to the proposed grounds of appeal.

42    After some introductory, and standard (see the Guidelines) passages about the protection criteria and the Migration Act, the reviewer commences with a section entitled “Claims and Evidence”. After a sub-heading entitled “Biodata and Entry interview” appear the following paragraphs (with my emphasis):

22.    According to his biodata documents dated 21 July 2010, the claimant was born in 1985 and lived in Baghdad until 2010; had an Iranian passport in his own name and a driver’s license issued in Teheran for which he paid money; completed 5 years primary and two years middle school at [redacted]; worked in construction, driving and as a labourer; had three sisters living in Teheran and one brother who had been hanged.

23.    In his entry interview on Christmas Island on 6 September 2010, the claimant said he was born in Baghdad, Iraq in 1984 but came to Iran with his family when he was 4 or 5 years old and lived in [redacted] village, [redacted], Ilam province. He claimed to be of Faili Kurdish ethnicity, Shi’a Muslim by religion, stateless and unmarried. The claimant spoke Kurdish and Farsi; said variously that he was illiterate; had no official schooling and was taught by a voluntary teacher in a tent; and had 5 years primary and 2 years middle schooling at [redacted]. He worked for a few years on farms in Ilam, then as a labourer on different construction sites around Tehran at various times for around 12 years. He said his aged parents had returned to Iraq and he had no contact with them; three sisters were living in Tehran; while one brother had been executed and another left Iran though he did not know where to.

24.    The claimant said he had no identity documents, including a birth certificate or green or white card; left Iran on a false red coloured passport which he was given at the airport and did not open to know if it was Iranian. He had a driver’s license, which he paid someone to organise for him and was unsure if it was real or fake.

43    The reviewer then sets out the details of the previous assessment processes and decisions, including in great detail a recitation of what the applicant said at each stage, and what was said on his behalf. It is fair to say that throughout these recitations, the descriptions given by the reviewer of the applicant’s claims to be stateless, and to have left Iran on a false passport, are recorded in a consistent fashion. However, there are a number of matters which the reviewer went on to find (under a larger heading of “Procedural fairness issues” at [107]-[134] of the reviewer’s reasons) had been described in different ways by the applicant at different stages, being what the reviewer described as “inconsistencies and issues of concern”. Many of these matters led to the reviewer’s finding at [164] that she:

did not find that the claimant to be a reliable, credible or truthful witness about his experiences in Iran and question[ed] whether anything he has said can be relied upon

44    After setting out the country information she considered relevant, the reviewer turned to the section headed “Findings and reasons” (at [154]).

45    While the reviewer noted the applicant’s mental health problems, she ultimately concluded (at [159]) that his mental health did not affect his ability to give cogent evidence at interview. However, the reviewer stated that she took into account the guidelines in the United Nations High Commissioner for Refugee’s Handbook on Procedures and Criteria for Determining Refugee Status about not placing weight on a degree of confusion and omission in accounts presented at various stages of the RSA process such as to lead to a conclusion that a person is not telling the truth, especially when initial interviews have been constrained by time limits and unfamiliar interpreters.

46    Amongst the findings on which the reviewer based her recommendation were the following matters.

(a)    Based on the applicant’s evidence that his parents and older siblings did not speak Arabic, his scant knowledge of his family’s history in Iraq and his assertion that Iraq was not his country, the reviewer was not satisfied that the applicant was born in Iraq. The reviewer discounted Iraq as a possible country of reference against which the appellant was to be assessed ([166]).

(b)    Because of the following matters, the reviewer was not satisfied that the applicant was a stateless Faili Kurd, or that he suffered discrimination in Iran due to his lack of identity documents.

(i)    As noted at paragraph [46(a)] above, and further because the applicant demonstrated a lack of knowledge about his family’s life in Iraq and claimed that his family only talked about their suffering in Iraq (a matter the reviewer considered implausible in light of country information that Faili Kurds lived well in Iraq before Saddam Hussein came to power), the reviewer was not satisfied that the applicant was born in Iraq.

(ii)    The applicant lacked knowledge of “key elements of his family’s Faili Kurdish history and culture, including what tribe they were from” and defined Faili Kurds solely in terms of their lack of identity documents, “even to the extent of saying that once they got citizenship they stopped being Faili Kurds” ([167]-[168]).

(iii)    The reviewer considered the applicant’s account of his family’s emigration from Iraq to Iran to be vague. The reviewer was not satisfied that a Faili Kurd child who actively experienced the drama of his family’s deportation from Iraq would have such a vague recollection of what happened and not be familiar with the story of his family’s displacement, even if he was young at the time it happened ([169]).

(iv)    The applicant’s evidence about what happened after his family arrived in Iran was vague and inconsistent, including in comparison to independent country-specific information. Country-specific information indicated that deportees from Iraq arriving in Iran at that time, including Faili Kurds, were well received and could obtain benefits such as free schooling and protection against deportation. The reviewer considered that the applicant’s claim that his family were unable to obtain identity cards or needed to hide in a remote area did not make sense, nor did his claim that he and his siblings had been denied education. Likewise, on the basis of the applicant’s description of the information networks Faili Kurds had to inform each other of work and opportunities, the reviewer considered it implausible that the applicant’s parents would not know how to obtain identity documents in Iran. She also considered it unlikely that Faili Kurds thought that the identity documents issued to them in Iran were worthless, contrary to the applicant’s evidence, because of country-specific information about the use of identity documents in Iran and because of the inconsistency of that claim with the applicant’s account of the efforts his parents made to obtain identity documents in Iran ([169]-[171]).

(v)    The reviewer’s opinion that the applicant’s narrative had “inconsistencies and implausibilities” meant that she was not satisfied that the claimant or his family ever lived in Iraq; nor that he and his family were deported by Saddam Hussein from Iraq to Iran in the mass deportations of Faili Kurds between 1989 and 1991, as claimed, nor that the applicant lived the life of an undocumented and stateless Faili Kurd deportee ([173]).

(vi)    On the basis of the applicant’s familiarity with a town in Iran’s Lorestan province, and his knowledge that the local people there (the Luri) had Iranian citizenship and birth certificates, as well as the reviewer’s information that Faili Kurdish is a dialect of the Luri language, the reviewer considered that the applicant might be a Shi’a Kurd or a Luri from Lorestan, and thus a national of Iran. The reviewer also noted that, by his evidence, the applicant was able to work in Tehran from the age of 15 or 16 until the alleged arrest of his brother in 2007 ([174]-[175]).

(c)    The reviewer was not satisfied that the applicant’s brother was arrested, detained and executed for his involvement with PJAK, nor that the applicant was at risk because of an association with his brother. The reviewer made this finding relying on “inconsistencies” in the applicant’s claims, including what she found were the same inconsistencies that were identified in the RSA decision and the first IMR and what she found were new inconsistencies that arose during the 28 August 2012 interview.

(d)    By reason of the reviewer’s finding that the applicant and his family were not undocumented Faili Kurds, the reviewer found it “would not make sense” for the applicant or his brother to be involved with PJAK.

47    Following these findings, the reviewer found:

186.     Having found that the claimant is an Iranian citizen rather than an undocumented Faili Kurd, I am not satisfied that he had to obtain a false passport or to leave Iran illegally for this reason. I consider that his evidence as to how he arranged and paid for his travel and exited the airport were concocted to fit his story and that this accounts for the various inconsistencies regarding his departure which I raised in paragraphs 100-102 and 122-123.

187.     I find that the claimant left Iran legally on his own genuine passport and will not, therefore, come to the adverse attention of authorities for illegal departure and be detained or fined; nor be regarded as a spy or face arrest, imprisonment, torture or execution, as claimed.

…

191.     As I have found that [t]he claimant departed Iran legally on his own genuine passport and never been politically active, I find that there is not a real chance that he will face serious harm as a failed asylum seeker returning to Iran, nor that he would be imputed with an anti-government political opinion for being a failed asylum seeker.

48    By letter dated 28 September 2012, an officer of the Department notified the applicant of the outcome of the second IMR. In this letter, the officer advised that the applicant was now expected to depart Australia and, therefore, if he wished to seek judicial review of the reviewer’s decision, he should do so as soon as possible.

Procedural history

49    On 21 May 2018, the applicant applied to this Court for an extension of time to lodge an application for judicial review of the second IMR. Following a submission by the Minister that, while this Court had no jurisdiction to hear the matter, the Federal Circuit Court did have such jurisdiction, the Federal Court proceeding was discontinued with no order as to costs.

50    On 20 July 2018, this Court referred the applicant for pro bono legal assistance under r 4.12 of the Federal Court Rules 2011 (Cth).

51    On 8 February 2019, the applicant filed an application for judicial review of the recommendation in the second IMR. The Minister sought dismissal of the application. Consent orders made on 2 April 2019 provided for the matter be listed for final hearing and afforded the parties an opportunity to amend their initiating documents, file any supplementary affidavits and make submissions.

52    On 27 April 2020, the applicant filed an amended application, abandoning the original grounds of review and replacing them with the six further grounds of review. One of the grounds of review (Ground 1) was abandoned at trial. The remaining grounds of judicial review concerned allegations of legal unreasonableness about some of the reviewer’s fact finding, alternatively irrationality in fact finding, and a series of allegations of denials of procedural fairness. It is not necessary to rehearse them in detail because they were not pursued on appeal.

53    In reasons delivered on 19 November 2020, the Federal Circuit Court rejected each of the applicant’s grounds of review. It is not necessary to work through the Court’s detailed reasoning, as the appeal is confined, and his Honour’s reasoning can be described where necessary in resolving the ground of appeal.

Present proceeding

54    The applicant applies for an extension of time in which to appeal from the Federal Circuit Court’s orders. He also seeks to raise two different contentions under a single ground of appeal concerning denial of procedural fairness. Neither of the two aspects or contentions of the procedural fairness ground rely upon the reasoning of the Federal Circuit Court supporting the orders made. In that sense, no specific error by the Federal Circuit Court is alleged.

Extension of time

55    Pursuant to rule 36.03(a) of the Rules, any notice of appeal from the primary judgment was to be filed by 17 December 2020; the twenty-eighth day after the orders of the Federal Circuit Court.

56    In support of the application for an extension of time, the applicant’s lawyer filed an affidavit in this Court affirming that she did not receive instructions to commence an appeal by 17 December 2020 because, at all relevant times, the applicant was in detention without a contactable mobile phone or email address, in need of a Faili Kurdish interpreter and possibly affected by serious mental health problems. The applicant’s lawyer deposed that several attempts were made to contact the applicant about his appeal before and after the expiry of the appeal period, but those attempts were unsuccessful. She explained those attempts in detail in her affidavit.

57    Eventually, on 13 January 2021, the applicant’s lawyer was instructed by teleconference to seek leave to appeal. At this teleconference, the applicant told his lawyer that he had not accepted previous calls to him because he was feeling very anxious and stressed.

58    By further affidavit filed on 10 August 2021, the applicant’s lawyer deposed that the reason for the delay between receiving instructions and the receipt by the Court of the proposed appeal application on 16 April 2021 was that the applicant lacked means and was dependent on the assistance of pro bono counsel, who was either on leave or working in a reduced capacity and with limited availability from 12 February 2021 to 26 March 2021.

59    An affidavit setting out several pieces of medical documentation regarding the applicant was also read in support of the application for an extension of time.

60    At the hearing counsel for the Minister informed the Court that the Minister did not oppose an extension of time being granted. I consider it appropriate for time to be extended: there is evidence of a reasonable explanation for the delay, there is no prejudice suffered by the Minister, and the applicant’s circumstances are clearly challenging.

61    There was however, another extension of time issue. That related to the timing of the judicial review application in the Federal Circuit Court. This arose in part because of the view taken by the Federal Circuit Court that the reviewer’s decision was not a ‘migration decision’ and not a ‘privative clause decision’: see [76]-[78] below. That view was, with respect, mistaken in light of the authorities to which the Minister referred. However that view of the Federal Circuit Court meant that the time limits in the Migration Act, specifically in s 477(1), were not considered to apply. Properly, counsel for the Minister raised this at the hearing, but accepted that the time had passed for this matter to determine the outcome of any judicial review application, such a course not being in the interests of the administration of justice. Counsel for the Minister also properly accepted during oral hearing there may need to be orders regularising the proceedings in the Federal Circuit Court if the appeal was allowed. The Court gave counsel an opportunity to seek instructions and put in a short note about their respective positions on this matter if they wished to. However, no such note was received.

Leave to appeal on new ground

62    The applicant’s lawyer deposed that, in her recollection, the substance of the first aspect of the proposed single ground of appeal was raised and put to the Federal Circuit Court in oral submissions at hearing. The recollection of the applicant’s lawyer was aided by the notes she made contemporaneously to the hearing, which were also exhibited to her affidavit. Another ground of appeal specified in the applicant’s original draft notice of appeal provided to this Court on 16 April 2021 was withdrawn by way of the proposed amended draft notice of appeal provided on 12 August 2021.

63    The applicant’s lawyer admitted that the second aspect or contention of the proposed ground of appeal (about apprehended bias) was not raised at first instance, but she deposed that the applicant has had limited access to legal representation, and his access has been further hindered by his detention and mental health issues. She also deposed that, if he is not granted leave to appeal, it is likely that the applicant will face indefinite detention, “as he is stateless and cannot be returned to any country”. I note this latter evidence is inconsistent with the finding of the reviewer, and for the purposes of this appeal I have placed no weight on it.

64    Properly, the Minister’s counsel agreed that if the Court accepts the evidence of the applicant’s lawyer, especially given her contemporaneous notes, then it would be correct that leave would not be required on this aspect of the ground of appeal, concerning the biodata document.

65    I accept that the evidence adduced on behalf of the applicant provides a sufficient probative basis for a finding that a procedural fairness argument was put to the primary judge, based on the reliance by the reviewer on the biodata document, without that document and its apparent contents as the reviewer understood them being put to the applicant. That argument was not dealt within the Federal Circuit Court’s reasons. I do not say that critically, but simply as a factual matter. This particular argument would not appear to have been developed by counsel at any length before the Federal Circuit Court, appearing instead amongst a large number of arguments made, with which his Honour dealt in detail.

66    However, the contention was clearly raised and so is not a “new” ground of review. Leave is not required to raise that contention on appeal from the orders of the Federal Circuit Court.

67    Leave is however required to raise the second aspect of the single ground of appeal, concerning apprehended bias. I have explained my opinion about the correct approach to the grant of leave to raise new grounds of appeal in previous decisions, and I adhere to the views I have previously expressed: see, eg, ALZ15 v Minister for Immigration and Border Protection [2017] FCA 279 at [29]-[30]; CPE15 v Minister for Immigration and Border Protection [2017] FCA 591 at [13]-[29]; BKQ16 v Minister for Immigration and Border Protection [2019] FCA 40; 163 ALD 127 at [73]-[76].

68    In a case such as this, given what is at stake for the applicant, and given his challenging circumstances, together with the absence of any real prejudice to the Minister and the efficient way in which the proceeding has been conducted, where the interests of justice lie will largely be determined by the Court’s assessment of the merits of the proposed new ground. As I explain below, I do not consider the apprehended bias aspect of the single ground of appeal has sufficient merit for leave to be granted to raise it.

69    The apprehended bias aspect or contention was said by counsel to have stemmed from the recent disclosure of the Guidelines. The ground was expressed as a contention that the biodata document, and the reviewer’s interpretation of the information contained in it about the applicant having an Iranian passport, had the potential to “subconsciously impact” the reviewer in a way which gave rise to a reasonable apprehension of bias, and a departure from the proposition that a person in the position of the applicant was entitled to have his review decided by a person who was not only in fact not affected by bias but about whom there could be no reasonable apprehension of bias. Counsel relied on a statement to this effect in the Guidelines at page 36, under the heading “Principles of procedural fairness”:

The principles of procedural fairness can be summarised as follows:

…

•    the right to have a finding made by an unbiased person:

•    bias may be actual or apparent;

•    if actual bias is alleged, evidence is needed. The test is whether the reviewer is actually incapable of considering the matter fairly[; and]

•    allegations of apparent bias will need to be tested on the basis of whether a reasonable and informed bystander would suspect that the reviewer is not impartial.

(Emphasis original.)

70    As I understood it, counsel relied on the presence of these statements in the Guidelines as no more than a policy recognition of the applicable legal principles.

71    Counsel also relied on MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 95 ALJR 441 at [70]-[71], and FSG17 v Minister for Immigration [2020] FCAFC 29; 274 FCR 456 at [32]-[37] to support this contention. The Minister opposed leave being granted on this additional aspect.

72    I do not consider leave should be granted to raise this new contention, or aspect of the proposed single ground of appeal. As counsel for the Minister submitted, it is not the production of the Guidelines which explains the delay in making this argument: the Guidelines do no more, as I have said, than recognise existing legal principles. FSG17 predates the Federal Circuit Court’s decision. It can be accepted that new arguments might occur to counsel in preparation for a hearing, and in some circumstances it may be appropriate for leave to be granted to raise them. This is not one of them, even on a generous approach, as the contention is not sufficiently arguable.

73    Counsel for the Minister is correct in submitting that the authorities relied upon, especially FSG17, concern very different circumstances, in which it was not disclosed that highly prejudicial information was before the decision maker. In FSG17, the information related to allegations the visa applicant had a sexual relationship with a 13 year old girl who was a ward of the state whom the visa applicant met at a train station over a three year period. The same can be said of CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; 268 CLR 76, which concerned the non-disclosure of assertions about a visa applicant’s aggressive or challenging behaviour and his alleged involvement in unspecified incidents while in detention and a “riot”, as well as information about investigations into the applicant and previous decisions to refuse his applications for a bridging visa. The same is true of MZAPC, which concerned the non-disclosure of information communicated to the decision maker about the visa applicant’s conviction for a dishonesty offence, in circumstances where the visa applicant’s credibility was in issue.

74    In the current situation, while there was no disclosure by the reviewer of the biodata document, nor its apparent relevance to her view of the facts, the information in the document is not inherently prejudicial. As I explain in resolving the principal ground of appeal below, what was recorded was equivocal, and susceptible to several explanations, some of which were obviously prejudicial in a material sense to the narrative he presented to the reviewer. That is why it was important it be disclosed to the applicant and he have a chance to respond to it. However, the information is not of the same character as that discussed in the authorities upon which the applicant’s counsel relied. Knowing that the reviewer had the document and can be inferred to have been aware of its contents does not give rise to an apprehension in a reasonable person that the contents of the document might cause the reviewer not to bring an impartial mind to the task on review. Rather, this is a straightforward Kioa v West situation, as I explain below.

75    Accordingly, the only ground which is available on the appeal is the procedural fairness contention concerning the non-disclosure of the biodata document; set out in particulars (a)-(f) of proposed ground 1 in the proposed amended notice of appeal.

Resolution

76    There was an initial submission made on behalf of the Minister, by way of clarification and after an inquiry from the Court, to the effect that the decision of a reviewer under this executive process is, for the purposes of s 474 of the Migration Act, a “migration decision” and, within the definition of that term in the Migration Act, a “privative clause decision”. So much is apparent from the High Court’s decision in Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; 259 CLR 180 at [58]-[73], which was dealing with a different executive process, an international treaties obligations assessment (ITOA). The Court said at [66]:

Subject to s 476(2)(d), the claims to declaratory and injunctive relief made by SZSSJ and SZTZI engaged the jurisdiction of the Federal Circuit Court under s 476(1). That was because, the Minister having made a procedural decision to consider whether to grant a visa or to lift the bar in the exercise of one or other of the powers conferred by ss 48B, 195A and 417 of the Act, the conduct of an ITOA by an officer of the Department met the definition of a “privative clause decision” in s 474(2). The conduct of the officer met that definition by reason of the extended definition of “decision” in s 474(3)(h). The conduct of an ITOA by an officer of the Department is conduct under the Act preparatory to the making of a substantive decision by the Minister – specifically, it is the holding of an inquiry or investigation.

77    See also EKU17 v Minister for Immigration and Border Protection [2019] FCA 782; 165 ALD 332 at [18]-[23]; EFX17 v Minister for Immigration and Border Protection [2019] FCAFC 230; 273 FCR 508 at [167]-[168].

78    Thus, where at [52], the Federal Circuit Court finds the reviewer’s decision is not a privative clause decision, that finding is, with respect, in error, on the basis of the authorities to which I have referred. The consequence is that the judicial review should have proceeded through the prism of jurisdictional error. I do not consider anything turns on this issue, and the Minister did not submit otherwise.

The principal ground of appeal

79    It was common ground that the reviewer was bound to afford procedural fairness to the applicant in the conduct of the review, in the sense explained by the High Court in Plaintiff M61 at [8]. One well-understood aspect of this obligation is that explained by the High Court in Kioa v West (1985) 159 CLR 550 at 629:

Nevertheless in the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made. It is not sufficient for the repository of the power to endeavour to shut information of that kind out of his mind and to reach a decision without, reference to it. Information of that kind creates a real risk of prejudice, albeit subconscious, and it is unfair to deny a person whose interests are likely to be affected by the decision an opportunity to deal with the information. He will be neither consoled nor assured to be told that the prejudicial information was left out of account.

80    In this case, of course, the prejudicial information was not “left out of account”, but rather formed part of the reviewer’s fact finding.

81    The findings of the reviewer which were said to have been made in a denial of procedural fairness to the applicant are the findings at [187] and [191] of the reviewer’s reasons.

I find that the claimant left Iran legally on his own genuine passport and will not, therefore, come to the adverse attention of authorities for illegal departure and be detained or fined; nor be regarded as a spy or face arrest, imprisonment, torture or execution, as claimed.

…

As I have found that he claimant departed Iran legally on his own genuine passport and never been politically active, I find that there is not a real chance that he will face serious harm as a failed asylum seeker returning to Iran, nor that he would be imputed with an anti-government political opinion for being a failed asylum seeker.

82    This ground raises an issue about the content of procedural fairness (see Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 293; 49 FCR 576 at 590), rather than the existence of the obligation, that being common ground as I have observed. The content of the obligation of procedural fairness varies with the circumstances: Somaghi v Minister for Immigration, Local Government and Ethnic Affairs [1991] FCA 501; 31 FCR 100 at 119, cited with approval by the Full Court in Alphaone at 590.

83    As counsel for the applicant submitted, the applicant had consistently claimed he had left Iran on a false passport. The reviewer’s reasons recount several circumstances in which that claim was made: see [24], [30], [32], [38], [100], as well as the following passages.

84    At [101], the reviewer recorded what she asked the applicant about the name in the false passport:

Asked if the false passport he travelled on had his name in it, the claimant said his photo was there and he did not look at the name or open his ticket as he was told that everything had been organised and everything would be alright. I expressed surprise that, as a sensible man who had to get past the authorities at the airport, the claimant would not look at what name was in his passport. The claimant responded that he was under his employer’s instruction not to look at the passport. I said I found this difficult to believe.

85    The remainder of the questioning, and the reviewer’s reaction to it, is recounted at [102]-[104], but it is not necessary to set it all out. This questioning is significant, I find, because it is the entry in the biodata document which was the probative basis (if there was one) for the reviewer’s suspicions about the applicant’s account about his passport, and for her eventual finding that the applicant held an Iranian passport in his own name. As I explain below, I am not persuaded there was a probative basis other than the contents of the biodata document, for the reviewer’s findings about the applicant’s nationality.

Minister’s submissions should be rejected

86    The Minister’s first submission was that there was no procedural unfairness because the information was on a document, consisting of – the Minister contended – answers given by the applicant to questions asked of him on his arrival in Australia. The Minister submitted that procedural fairness “does not extend to reminding the party of information which has been disclosed as part of the party’s own case or in prior, relevant, statements of the party such as a declaration in support of an application for a visa”: Milne v Minister for Immigration and Citizenship [2011] FCAFC 41; 120 ALD 405 at [53]. The Minister pointed to the fact the applicant had signed the document, as had the interpreter. The Minister’s submission should be rejected because of the factual issues above, which needed to be resolved, and about which the applicant needed to be given an opportunity to be heard, before the reviewer decided to rely on the contents of that document to find the applicant left Iran on his own Iranian passport and was therefore not stateless.

87    In Alphaone at 590-591, the Full Court explained a series of authorities which make the distinction between the absence of an obligation to disclose reasoning processes, and the obligation to disclose adverse material or conclusions. At 591, the Full Court observed:

The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material.

(Emphasis added.)

88    This proposition is consistent with the passages from earlier authorities extracted in Alphaone at 590, such as Somaghi at 103, 119, and the cases referred to therein.

89    While it is true that in Milne at [53], the Full Court emphasised that the content of procedural fairness may sometimes require a decision maker to draw to a person’s attention material “from other sources”, with respect I do not consider the Full Court was necessarily intending any absolute exclusion of information supplied by the person themselves. At [24], the Full Court had cited the passage at 590-591 from Alphaone, but had not referred to the earlier and later passages at 590 and 591, referring to earlier authorities, on which that cited passage was based.

90    Of particular relevance is the Full Court’s observation in Alphaone at 591:

The general propositions set out above may be subject to qualifications in particular cases. Two such qualifications were enunciated by Jenkinson J in Somaghi at 108-109:

1.    The subject of a decision is entitled to have his or her mind directed to the critical issues or factors on which the decision is likely to turn in order to have an opportunity of dealing with it: Kioa v West at 587 (Mason J); Sinnathamby at 348 (Burchett J); Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472 (Burchett J).

2.    The subject is entitled to respond to any adverse conclusion drawn by the decision-maker on material supplied by or known to the subject which is not an obvious and natural evaluation of that material: Minister of Immigration and Ethnic Affairs v Kumar (unreported, Full Court, Federal Court, 31 May 1990); Kioa v West at 573, 588 and 634.

His Honour observed that those qualifications may be no more than an application of the general requirement of procedural fairness in particular cases. As Gummow J there said (at 359):

“... in a particular case, fairness may require the applicant to have the opportunity to deal with matters adverse to the applicant's interests which the decision-maker proposes to take into account, even if the source of concern by the decision-maker is not information or material provided by the third party, but what is seen to be the conduct of the applicant in question.”

91    Those propositions remain part of the law, and were not overruled or disapproved by the Full Court in Milne. There was no occasion for the Full Court in Milne to address the kinds of circumstances which arise in the present appeal. In Milne, the visa applicant’s complaint related to not being given a further opportunity in his review hearing to explain to the Tribunal what he was prepared to do by way of participation in sex offender programs. The Full Court found at [53] and [54] that the question of the undertaking of such a program was clearly raised with the applicant and his daughter, and there was no adverse decision on this issue arrived at by the Tribunal when it was conducting the hearing.

92    The difference in circumstance is apparent from the following passage in Milne at [57]:

Nor was this a case like that considered by another Full Court in Dagli (supra) where four specific matters, adverse to the appellant, had been before the Minister and which the appellant had been denied an opportunity to address. In the present case, the Tribunal had before it no information on whether the appellant was willing to undertake a sex offender’s program other than the information that he had not undertaken such a program whilst in prison. As we have already noted, that fact and the reasons for it were apparent to, and fully discussed with, the appellant or his daughter. The appellant’s real complaint is that he was not invited to give additional evidence from which the Tribunal could have found, or inferred, that he continued to be willing to undertake a sex offender’s program.

93    As I have noted above, the authorities are clear that the content of procedural fairness very much depends on the factual and other circumstances in a given situation.

94    The underlying rationale for the approach to the content of procedural fairness as set out in authorities such as Alphaone and Milne is that, subject to any facts which suggest this inference should not be drawn, a person affected by a decision is to be taken to understand not only the actual information they have volunteered or supplied to a decision maker, but also the natural or obvious factual consequences which might flow that information, including adverse ones.

95    Therefore, the first question will always be – is it fair and rational to attribute the particular information to a person affected, as information they volunteered or supplied? Second, if it is, then are the adverse conclusions or inferences the decision maker has drawn from the information so natural or obvious that it is fair and rational to expect the person affected to have been aware that those conclusions or inferences might be drawn? If yes, then there may be no obligation on a decision maker to expressly put those adverse conclusions or inferences to the person affected and give them an opportunity to comment.

96    It is far from clear, and without further consideration and inquiry it was not open to the reviewer to form an opinion, that what was written on the biodata document amounted to the volunteering of the fact that the applicant held an Iranian passport in his own name, which was genuine because he was a national of Iran. As I have explained above, there were far too many uncertainties and unknowables about the document itself. The inference drawn by the reviewer was the most adverse one which could be drawn against the applicant, without him having an opportunity to deal with it.

97    The features I have outlined in these reasons comfortably fit within the principles expressed by the Full Court in National Disability Insurance Agency v WRMF [2020] FCAFC 79; 276 FCR 415 at [68]-[69], a case relied upon by the Minister. Relevantly, these principles include that an applicant is entitled to respond to any adverse conclusion drawn from material supplied by or known to the applicant if the conclusion “is not an obvious and natural evaluation of that material”.

98    Further, contrary to the Minister’s submissions, the applicant did not “sign” the document. The overwhelming evidence before the reviewer was that he was illiterate and the reviewer made no express finding to the contrary, although she did doubt the extent of any illiteracy since he had volunteered that he attended primary school and middle school. A signature generally conveys that a person understands and adopts the content of a document that is signed. While it is possible to ensure that an illiterate person agrees with and adopts information they have given orally, great care would need to be taken before a decision maker could rationally and reasonably place weight on answers recorded in such a circumstance. On the biodata document, signature was absent. When the presence of a strikethrough is added to this fact, it all called for an explanation from the applicant, because nothing was clear on the face of the document, and it was capable of adverse, neutral or favourable interpretations.

99    In the alternative (as I understood it), the Minister submitted that the biodata document was not the source of the reviewer’s findings at [187] and [191]. The Minister submitted those findings were based on an earlier finding that the applicant (and each of his relevant family members) was not a Faili Kurd, but instead a Shi’a Kurd or Luri from Lorestan, with Iranian citizenship and a birth certificate. The Minister submits that this finding is not challenged on review. The biodata document therefore was not used adversely to the applicant in any relevant way and did not need to be put to the applicant for comment. To address this submission and explain why I do not accept it, some careful consideration of the reviewer’s reasons is required.

100    This is the finding to which the Minister refers, at [175] of the reviewer’s reasons, but [174] should also be extracted to provide the proper context for the reviewer’s findings:

Notably when I told the claimant that the IMR had been unable to locate on a map [redacted] mountain in [redacted] district of Ilam province, where he claimed he lived in Iran, he described it as a summit between Ilam and Khoramabad in Lorestan province; and volunteered that it was better known in Khoramabad in Lorestan than in Ilam; that the Faili Kurdish language spoken there ‘tilted towards’ Luri and that most of the Luri people there had citizenship and birth certificates. Subsequent research undertaken by the IMR to locate this mountain was still unsuccessful. However, the claimant’s apparent familiarity with Khoramabad as reflected in his evidence above and elsewhere in his interview, together with his statement reported at paragraph 128 that he was not from Ilam, suggests that he is probably from Lorestan, rather than Ilam province.

While the claimant said he spoke Faili Kurdish and he drew a distinction between Faili Kurdish and Luri, by his own evidence the language spoken in his area ‘tilted towards Luri’. When I drew to the claimant’s attention country information that Faili Kurdish was a dialect of Luri, that it was also spoken by people who were not Faili Kurds; and that I had to consider whether he might be Luri or Kurdish Faili from Iran, his only comment was that he was originally Faili Kurdish from the mountains. Given the general unreliability of the claimant’s evidence, I am not satisfied that the claimant is being truthful about his origins. Given the similarity of Faili Kurdish and Luri, I consider that the claimant may be a Shi'a Kurd or Luri from Lorestan of the type he himself described with citizenship and a birth certificate. As a national of Iran, I find that the claimant has a right to enter and reside in Iran and that he concocted his claim of being a stateless and undocumented Faili Kurd deported from Iraq for migration purposes.

101    At the end of [174], the reviewer provided a cross reference to [128], which appears to be the reviewer’s explanation for her finding about which province she considered the applicant was from. Paragraph [128] reads:

I referred to country information that there was considerable sympathy for Faili Kurds in Ilam, including from low level officials such as police so working conditions for Faili Kurds were better than in other parts of Iran. The claimant said this information did not apply to police because they were always looking for bribes.

102    This was in the section of the reviewer’s reasons where she made findings about whether there was a real chance the applicant would face serious harm for a convention reason on return to Iran. None of these matters provide any probative basis for the reviewer’s impugned findings about the applicant’s citizenship and nationality.

103    Returning to [174] and [175], if one puts to one side the fact that the reviewer appears to be relying on specific country information that she did not disclose to the applicant about which dialects were spoken in which parts of Iran, the first real problem relevant to the Minister’s submissions is the reviewer’s references to a birth certificate and citizenship.

104    There does not appear to be any probative basis for the reviewer’s findings that the applicant had a birth certificate and citizenship, other than the applicant’s own evidence about other people who spoke the language or dialect Luri. At [60], the reviewer records this evidence from the applicant:

I told the claimant the IMR had been unable to locate this mountain on a map. The claimant said [redacted] was a big summit, with a small lake nearby, which you would see if travelling towards Lorestan from Khoramabad to Kuhdaasht. He remarked that people from Ilam did not know [redacted] very well, but it was known in Khoramabad in Lorestan. He added the Faili Kurdish language spoken there ‘tilted towards’ Luri and that most of the Luri people over there had citizenship and birth certificates.

105    In my opinion, it is far from clear how a general statement from the applicant that “most” people from a particular region who share a particular language identity or ethnicity have citizenship and birth certificates is probative of the applicant’s own citizenship and nationality when it was also the applicant who was stating he was not from Lorestan, and was a stateless Faili Kurd. One possibility is that this was a self-serving or biased choice by the reviewer to accept this statement from the applicant but not other statements. That is unlikely and I make no such finding. Rather, I find it is unlikely the applicant’s generalised statement about the citizenship or birth certificates held by a whole section of the population in Lorestan province (which he said was not his province) was the entire, or the principal, source of the reviewer’s fact finding at [175] and [191]. I find it is far more probable that the biodata document was influential in the reviewer’s fact finding, and that the reviewer drew a number of adverse inferences and interpretations from that document. The language of the reviewer’s reasons, as I explain below, bears this out.

106    The Minister accepts the biodata document was referred to at [22] of the reasons: see [42] above. Thereafter in the reasons the only point at which the reviewer referred to the biodata document was at [112], in the context of the applicant’s educational history, and the issue of whether the applicant was illiterate as he claimed. The reviewer ultimately made no findings about the applicant’s literacy, which in the context of the findings about the entries on the biodata document also illustrates one of the consequences of the denial of procedural fairness to the applicant. Matters such as whether or not the applicant was illiterate were capable of having a significant bearing on what should be made of the entries on the biodata document, as well as other aspects of his narrative, as his adviser submitted: see [44] of the reviewer’s reasons.

107    I take a different view to the Minister about the significance of [22] of the reviewer’s reasons. As the applicant submitted, this reference is right at the start of the reviewer’s reasons. It is given some prominence in that respect. The reviewer’s finding at [187] – “I find that the claimant left Iran legally on his own genuine passport” – is more obviously a reference to the reviewer’s findings and inferences at [22], drawn from the biodata document. The same is true of the finding at [191] – “[t]he claimant departed Iran legally on his own genuine passport”. This is also more obviously a reference to the answer recorded and attributed to the applicant in the biodata document, as the reviewer elected to interpret it, without putting any of this to the applicant.

108    The Minister relied on the High Court’s decision in Tahiri v Minister for Immigration and Citizenship [2012] HCA 61; (2013) 249 CLR 332 at [24]. The Court’s finding at [24] does not advance the Minister’s case. It was a finding on the facts of that case, which were quite different to the facts now at hand: see Tahiri at [4], [10]-[11].

109    Therefore, although my reasoning has had to be somewhat detailed, I reject the Minister’s second submission.

Materiality

110    Finally, I reject the Minister’s submissions regarding materiality. Fundamentally, this was a case about statelessness. That was the applicant’s central claim. A core indicium of statelessness may well be that a person does not have, and is not entitled to, a passport; the issuing of a passport being an act by a nation state recognising that a person is a citizen, or a national of that state: see the discussion in VSAB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 239 at [54]; see also Mathews v Canada (Minister of Citizenship and Immigration) [2003] FCJ No 1777; FC 1387 at [11].

111    The reviewer’s opinion about the applicant being an Iranian citizen thus went to the heart of the applicant’s narrative supporting his claim for protection. Further, the additional finding that the applicant left Iran on a genuine passport, in his own name (noting there are two critical aspects to that finding) went directly to how well founded the applicant’s fears were, because implicit in that finding is a finding that the Iranian authorities had no difficulty with the applicant, and were content for him to leave on his own, genuine passport. Again, this went to the core of the applicant’s narrative.

112    The High Court in MZAPC at [59] explained how a breach or denial of procedural fairness was to be evaluated for the purposes of materiality:

The reasoning in WZARH on which the appellant places reliance was introduced with citation to Stead by express recognition that breach of the condition of procedural fairness implied into the statutory power in issue in that case would have been “material” only if it deprived the applicant of “the possibility of a successful outcome”. Implicit in the characterisation of the case as one in which “practical injustice” lay in the denial of “an opportunity which in fairness ought to have been given” was that the case was one in which that previously identified threshold of materiality was met.

113    Here the issue is executive and not statutory power, but the well-established principles about the content of procedural fairness apply in this case. The approach is the same as that set out in this passage – did the reviewer’s failure to put the key contents of the biodata document to the applicant, and her interpretation of it, deny the applicant the possibility of a successful outcome on his review? Given his narrative of his protection claim revolved around statelessness, in my opinion the answer is clearly yes.

Conclusion

114    The Court having upheld the principal contention on the single ground of appeal, the appeal should be allowed, and the orders of the Federal Circuit Court should be set aside, with the usual consequential order in relation to the reviewer’s decision being set aside. The error in the Federal Circuit Court’s orders was the failure to identify jurisdictional error, by denial of procedural fairness, in the reviewer’s decision. The contentions which have succeeded on appeal were put, briefly and orally, to the Federal Circuit Court. They were not the focus of the argument in the way they have been here. It is quite understandable in those circumstances, and in a situation where other arguments were given more prominence, that the Federal Circuit Court may have not adverted to this contention.

115    The Federal Circuit Court’s reasons demonstrate detailed consideration given to those contentions of the applicant that were prominent in argument before the Federal Circuit Court. These are not orders supported by inadequate, template or unreasonably conclusory reasons. Despite the Federal Circuit Court dealing with a high volume of litigation, with tremendous pressure on the time of its Judges, there was a careful approach taken. The outcome on this appeal should not at all be seen as critical of the Federal Circuit Court.

116    The applicant having succeeded, it would be the Court’s preliminary view that costs should follow the event below, and in this Court. If the Minister wishes to put submissions that different costs outcomes should flow, an opportunity will be given to do so in the orders of the Court.

117    There is some question about what, if anything, is the further appropriate relief. The Court having concluded the reviewer’s decision is affected by jurisdictional error, it should be set aside. However, the position appears to be that the executive processes have changed since the time of the reviewer’s decision. Another process may now be appropriate, and remitter may not be an appropriate order. It may be that no further order is required. The parties should confer on this issue, and provision is made in the orders of the Court for any further proposed orders to be filed, together with a joint submission. The joint submissions should set out either a joint position, or the parties’ competing positions on further orders.

Associate:

Dated:    28 September 2021