|
|
Home
| Databases
| WorldLII
| Search
| Feedback
High Court of Australia Transcripts |
Last Updated: 14 February 2018
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M132 of 2017
B e t w e e n -
WET044
Appellant
and
THE REPUBLIC OF NAURU
Respondent
KIEFEL CJ
GAGELER J
KEANE J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON WEDNESDAY, 14 FEBRUARY 2018, AT 10.15 AM
Copyright in the High Court of Australia
MS W.A. HARRIS, QC: Your Honours, if it please the Court, I appear for the appellant with my learned juniors, MR M.L.L. ALBERT and MS E.R. TADROS. (instructed by Russell Kennedy Pty Ltd)
MR R.C. KNOWLES: Your Honours, if it please the Court, I appear for the respondent in this matter. (instructed by Republic of Nauru)
KIEFEL CJ: Yes, Ms Harris.
MS HARRIS: If the Court pleases. Your Honours, there are three matters that we need to deal with in our oral submissions. The first of those matters is why the appellant, who was not represented before the Supreme Court of Nauru, ought to be permitted to rely on new grounds in this appeal. Those grounds are the subject of our proposed amended notice of appeal dated 17 November 2017, at appeal book 228, to which I will return.
The second matter is the error made by the Tribunal, which is the subject of the first of our grounds, namely, that in determining the appellant’s claim adversely to him it simply relied on findings and reasoning made by the Secretary by reference to a different suite of material than the material before the Tribunal. The material actually before the Tribunal, we say, directly contradicted the conclusions which had been drawn by the Secretary, and the Tribunal was bound to take it into account but ignored it.
The third matter we want to deal with is the errors made by the Tribunal, which are the subject of our ground 2. I say “errors” because the Tribunal made one key error which it then compounded with the second. First, it decided against the appellant by reference to a factual proposition which had not been put to him and was not the subject of any argument or submissions, namely, that Kurds are not the subject of discrimination if they adhere to the Shia Islamic religion. This was a breach of the requirement to accord him procedural fairness.
It then compounded that error by concluding that he was an adherent to that majority religion and would therefore not suffer any discrimination, even though he is a Kurd, when there was no evidentiary foundation for such a conclusion. It was in fact only conjecture or supposition on the part of the Tribunal.
Your Honours, we propose to deal with the second and third matters first, that is the substance of our grounds, which we hope will expose the merits thereof, and then circle back to the first of the grounds, namely, why we should be permitted to raise them in this place.
KIEFEL CJ: Just before you do, Ms Harris, could I clarify a couple aspects of the proposed amended grounds of appeal?
MS HARRIS: Yes, your Honour.
KIEFEL CJ: I take it, from the terms of the grounds, and the history of the matter really, that the claim for complementary protection is not pursued. We are concerned only with his claim to refugee status.
MS HARRIS: The claim for complementary protection is pursued insofar as it was the subject of the findings – or the absence of findings, as it were – relating to the country information dealing with his position as a failed asylum seeker. I have developed the reasons why we say that is the case, your Honour, but - - -
KIEFEL CJ: But I think I am right – correct me if I am not, obviously – both the Secretary of the Tribunal – everyone has dealt with the findings in relation to him being a failed asylum seeker under the claim to refugee status.
MS HARRIS: Yes, your Honour. The country information which we say ought to have been taken into account by the Tribunal and which was not before the Secretary established this proposition – that even if one has no pre-existing political profile or independent political profile then one may expect – may be at risk of persecution as a failed asylum seeker upon return. Another aspect of that country information was that those who are detained or imprisoned in Iran may be subject to treatment in breach of various international treaties including the prohibition on torture in the Convention against Torture.
KIEFEL CJ: But this was not articulated before the Tribunal – either in the letter of 29 November or in oral submissions – at least so far as the Tribunal records it. Is that right?
MS HARRIS: I think I am right in saying no, your Honour. The submissions before the Tribunal raised both the primary application for refugee status on the basis of – there were a number of grounds, as your Honours see, but the key ones, for present purposes, raise membership of a particular social group and political opinion. But there was also a claim for complementary protection which your Honours will see at appeal book 78.
KIEFEL CJ: Yes, that is about as general as one can get. It is not really connected, is it, with the claim upon which appendix 2 – to which appendix 2 was addressed, which is referred to in paragraph 42 on page 76 of the appeal book. That is clearly a claim for protection under the Refugees Convention.
MS HARRIS: Yes, your Honour, but, as outlined in that part of the submissions at appeal book 78, the claim for complementary protection relied on the obligations of Nauru by reference to the international treaties and the memorandum of understanding there referred to. The basis of that claim for complementary protection was the exposure of the appellant to the risk of harm or degrading treatment or punishment upon return as a detainee.
KIEFEL CJ: I suppose that is the point. There is certainly a claim to harm or persecution, but the risks of torture, cruel, inhuman or degrading treatment are not really addressed. One could be forgiven for thinking that it was not really pursued with any vigour before the Tribunal.
MS HARRIS: Your Honour, when I come to appendix 2, which I will, your Honour will see that part of the country information which we now rely upon goes to this very point. Your Honour will find that at appeal book - - -
KIEFEL CJ: Rather than distracting you from your course of argument, perhaps you could bear in mind that, at least speaking for myself, I have this concern that the complementary protection claim has gone by the wayside. When you are dealing with the curial history you might bear that in mind.
MS HARRIS: As your Honour pleases.
KIEFEL CJ: The other question I just wanted to clarify is that we are not concerned at all with the claim to statelessness, are we, now?
MS HARRIS: No, your Honour.
KIEFEL CJ: The findings of fact have been made and that is accepted.
MS HARRIS: There is no challenge to those, your Honour.
KIEFEL CJ: Does that affect your second ground, that is, concerning the risk of harm to Kurds who are Shia Muslims? I ask that because, in the letter of 29 November 2015, which commences at appeal book page 70, the status of the appellant is put at page 76, paragraph 42:
as an asylum seeker who is also a Faili Kurd and stateless.
MS HARRIS: Yes.
KIEFEL CJ: Is that an essential element of the status for which he was contending?
MS HARRIS: No, your Honour, and we will see it almost immediately when we look at the Tribunal’s findings. The statelessness aspect was referable to a claim put by reference to nationality in terms of the definition of “refugee”. The balance of the claims did not depend upon statelessness as an element, that is those relating to race, membership of a particular social group or political opinion. The Tribunal so deals with the matter in that independent way at appeal book 198 and 199, which I was about to turn to.
KIEFEL CJ: Just before you do, can I just draw to your attention, so that you may deal with it on the way, to the Tribunal’s decision at the end of page 193, top of 194, paragraph 69, when it says that the appellant’s legal representative:
stated that he had a well-founded fear of persecution . . . as a member of a particular social group . . . constituted by stateless Faili Kurds –
and then also as a “failed asylum seeker”.
MS HARRIS: Yes. We say, your Honour, that that was a very compendious reference to the submissions which had actually been put. One sees the way in which those submissions were interpreted more clearly at appeal book 198 to 199, in paragraphs 89 through to 97.
KEANE J: In 89:
For the reasons set out above the Tribunal does not accept that [he] is stateless but finds that –
he is a citizen. So it is directing its attention to the claim of a fear based on statelessness.
MS HARRIS: Indeed, your Honour, and there is no complaint about that. Your Honour sees the heading there, “Nationality”.
KEANE J: Yes.
MS HARRIS: So, as we know, the definition of a refugee comprehends a number of features – persecution – discriminatory persecution on the grounds of nationality, race, membership of a social group and political opinion so the statelessness was particularly referable to that claim under the “Nationality” head but no appeal is pursued in this Court with respect to that aspect of the Tribunal’s decision.
KEANE J: But it was certainly the way his case – in terms of his fear on return – his fear of persecution – at page 113 of the appeal book, at paragraph 39, he says:
The primary reason I cannot return to Iran is because of the harm I fear from the authorities of Iran and the general Iranian society on the basis of my status as a stateless Faili Kurd.
At paragraph 40, the other basis on which he puts his fear is because of his addiction to ice – which he elaborates on in 41.
MS HARRIS: I am sorry, your Honour, I did not hear the reference in the appeal book.
KEANE J: It is page 113, paragraphs 39 to 41 of his statement on 25 November 2015.
MS HARRIS: I am sorry, your Honour, it is actually – it is confusing because the - - -
KIEFEL CJ: The numbering. At the top of the page, page 110.
KEANE J: Sorry, the top of page 110.
MS HARRIS: I am sorry, your Honour.
KIEFEL CJ: I struggle with that, I have to say. I wish people would not do this to me. Life is difficult enough.
MS HARRIS: There are three numberings going on, your Honour, and I am as confused as anyone.
KIEFEL CJ: We will concentrate on the top of the page.
KEANE J: Sorry, it is the top of the page, 110.
MS HARRIS: So, that is true. That was the statement that he made, but his case for refugee status was developed much more fully in the submissions that your Honours see from appeal book page 69 and following. A fair reading of those submissions – certainly the question of statelessness is relied on – but it is not relied upon as being a necessary integer or feature of all of the claims for refugee status, or complementary protection that he advances.
On the contrary, the particular claims which are the subject of this appeal, your Honour, do not depend in any respect on him being stateless or otherwise. They do depend upon him being a Faili Kurd. There is no evidence to contradict that. That was accepted by the Tribunal. They also depend upon him being – upon country information which suggested that Faili Kurd or non-Faili Kurd – stateless or not stateless – if one was returned to Iran as a failed asylum seeker one was at risk of harm for that very reason – for having advanced failed claims of persecution abroad.
So, they were – I think it will emerge more clearly, I hope, as I develop our submissions on that, but it is important to understand that that statelessness element of his narrative was not an essential feature of those other claims and the ones that are subject to this appeal.
KIEFEL CJ: Perhaps importantly about how the Tribunal understood and how they dealt with them. In that regard, perhaps what the Tribunal says at paragraph 94 on page 199 of the appeal book might support what you are saying.
MS HARRIS: Yes, your Honour. Your Honour will see from what then follows in relation to the particular social group of failed asylum seekers and political opinion discussions, there is no reference to statelessness at all. Indeed, when we circle back to the Secretary’s determination, upon which these paragraphs rest, and this is a good place to start with those, that did not form an element of the Secretary’s reasoning either.
KIEFEL CJ: Having interrupted you thus far, you might like to proceed with your argument.
MS HARRIS: Not at all, your Honour. I am grateful to your Honour. We are at appeal book 199, and that is the place to start with respect to the first of our grounds. Your Honour sees the critical paragraphs at 95 to 97, where the Tribunal deals with these two aspects of the claim for refugee status. Your Honours see in paragraph 95 – I apologise for reading and emphasising particular parts of the paragraph:
The Tribunal then considered the applicant’s other claim that he fears persecution if returned as a member of a PSG –
particular social group:
constituted by failed asylum seekers.
This is the important part:
The Tribunal agrees with and adopts the reasoning and findings of the Secretary on this point, and also notes that while it may be prepared in light of the country information set out in the Secretary’s decision to accept that failed asylum seekers can constitute a particular social group in Iran, it does not accept that mere membership of this group gives rise to a well-founded fear of being persecuted.
It goes on to note:
the applicant left Iran lawfully on his own valid passport and hence penalties discussed above for illegal departures are not applicable to him.
This is important, too, your Honours:
There is nothing before the Tribunal that indicates that making an asylum claim in another country, after having left lawfully, will bring him to the adverse attention of the authorities.
I will return to it, your Honours, but the Tribunal could not make that statement if it had had regard to the country information in appendix 2. It could not make that statement. It goes on at 97 with respect to political opinion:
The applicant also contends that he will be imputed with an adverse political opinion by the Iranian authorities for having sought asylum in Nauru. For the same reasons as are set out under the previous heading, the Tribunal rejects this contention -
namely, for all the reasons that the Secretary set out. The summary point is that, as undesirable as this shorthand course was, it could only conceivably be appropriate if the information suite before the Tribunal was the same as the information suite before the Secretary. If those differed materially, it could not adopt that course. Moreover, it was not simply entitled to read the Secretary’s determination and say, well, that looks all right to me, I am going to adopt it. It had a statutory function and that statutory function involved reviewing and evaluating that material before it was entitled to arrive at the same conclusions arrived at by the Secretary.
The difficulty for the Tribunal – the Tribunal’s decision in this regard is the information suite was not the same. There were material differences. The information actually before the Tribunal was not evaluated by it – evidently not evaluated by it. The information before the Tribunal was actually to the contrary effect. So that is why we say it was not entitled to say there was nothing before the Tribunal that indicated that making an asylum claim in another country would bring one to the adverse attention of authorities.
The information before the Tribunal called for actual analysis and evaluation which may have led to a different conclusion if that statutory task had been undertaken. The Tribunal, despite its obligations under section 34, to which I will briefly return, of course, does not expose a chain of reasoning but it needed to do that in order to comply with its obligation under section 34(1) of setting out its findings on material facts.
The respondent accepts that some of the country information before the Tribunal was not before the Secretary. The respondent accepts that. So there is no dispute between us that the information suite was not the same. But the respondent says two things which I want to deal with in an anticipatory way in our submissions. Firstly, it is not established that the Tribunal failed to take into account all the relevant material before it. That is the first thing the respondent says. The second thing it says is, even if regard was not had by the Tribunal to the additional information not before the Secretary, it does not matter because it was not relevant to and could not have changed the Tribunal’s decision.
Both of those propositions are easily refuted, we say, when one looks at the Tribunal’s decision. But before we get to it we need to orient that discussion in what occurred before the Secretary. The Secretary’s determination is at appeal book 55. The first thing I would like to draw to your attention is the Secretary’s recitation at appeal book 60 to 61 of the information before him. So that was the material before the decision-maker.
Then at appeal book 65 to 67, which is pages 11 to 13 of his decision, he discusses the appellant’s claimed fear of persecution as a failed asylum seeker. He sets out various pieces of country information at appeal book 65 to 66, and then he draws the conclusion at the bottom of appeal book 66 in the paragraph saying:
I have had careful regard [to the relevant] country information discussed above.
We lay emphasis on that. It is clear that it is the country information referred to in the preceding paragraphs to which he has had regard:
I accept that there have been instances of detention and mistreatment of failed asylum seekers on return to Iran. However, analysis of those reports indicates that, overall, those returnees had some profile of interest other than simply being a failed asylum seeker. The cases mentioned above indicate that seeking asylum overseas per se will not lead to harsh action by the authorities on return to Iran. Rather, it appears that a person’s actions while overseas and the authorities’ view of that person’s potential to engage in protest action on return will be the main consideration in determining whether adverse action will be taken against the person upon return.
Then your Honours see on the next page, the second full paragraph:
I am satisfied that the Applicant does not have any adverse political profile as discussed above. I also find he left Iran legally using a genuine passport issued in his own name –
et cetera. The conclusion at the end of that paragraph:
Nor do I accept that his status as a failed asylum seeker would give rise to a cumulative risk of persecutory harm on return.
Can I ask your Honours to note that the Secretary did not, in reaching those conclusions, refer at all to two important sources of information in his list at appeal book 60 to 61. The first of those pieces of information is the Amnesty International report referred to at the bottom of appeal book 60. The second is the ACCORD report, which is the third-last dot point at appeal book 61, the Austrian Centre for Country of Origin and Asylum Research and Documentation.
Now, your Honours will find, in reviewing the discussion at appeal book 65 to 67, no reference to those documents. That is a matter of significance which we ask your Honours to note for future reference in our submissions. The next thing to note is the critical information which was placed before the Tribunal by way of - - -
KIEFEL CJ: What do those reports critically say that would be important from the perspective of - - -
MS HARRIS: I am about to come to it immediately, your Honour.
KIEFEL CJ: Thank you.
MS HARRIS: Because they are dealt with in appendix 2. It might be convenient, at this point, if your Honours were to take up our reply submissions. In paragraph 31 of those submissions we summarise the six critical pieces of information which ought to have been evaluated by the Tribunal and which were not taken into account by the Secretary.
KIEFEL CJ: Were these your submissions in-chief – paragraph 31?
MS HARRIS: I beg your pardon – our reply submissions. I am sorry, your Honour. It is paragraph 31 of our reply submissions. I beg your pardon – no, our primary submissions.
KIEFEL CJ: Yes.
MS HARRIS: I do not know why I said our reply.
KIEFEL CJ: So that was the Amnesty International Report which is at c - is that right?
MS HARRIS: Indeed, your Honour. If your Honour pleases, you might have the reply submissions out at the same time as appendix 2 to the submissions which commences at appeal book 96. So this appendix 2 - - -
KIEFEL CJ: Is the reference to the Austrian Centre for Country of Origin identified in paragraph 31?
MS HARRIS: Yes, your Honour. Your Honour will see that it is footnote 67 – and I will come back to the reason why it is referred to as the Swiss Refugee Council Report.
KIEFEL CJ: Yes, that confused me a little.
MS HARRIS: The ACCORD report – and it is in the materials that we were asked to file with the Court – the ACCORD report contains within it the reference to the Swiss Refugee Council country information. Your Honours will see at appeal book 98 under the heading “Do the Iranian authorities persecute failed asylum seekers for having sought protection in other nations?” reference to the Amnesty International February 2012 report:
‘We are ordered to crush you’.
The quote at the bottom of appeal book 98 is the country information referenced in our paragraph 31d. It supported the proposition that returning asylum seekers are interrogated and will be detained, upon return, regardless of whether they have been politically active. They will certainly be detained pending a determination of whether that has occurred and that is attributed to an Iranian judge.
Now, that, your Honour, when combined with other information, addresses your Honour’s question to which I will return, that this information engaged not only the question with regard to refugee status but whether the appellant was entitled to complementary protection as someone who might be exposed to punishment, torture as broadly defined, upon return by reason of having been detained as an asylum seeker.
If we turn to the next page, appeal book 99, the next quote attributed to a Supreme Court judge, which commences, “Referring to existing laws,” that information is referenced in our paragraph 31a. Your Honours see that the quote attributes to the judge the statement:
failed asylum-seekers could be prosecuted for making up accounts of alleged persecution.
That brings the appellant squarely into frame if returned to Iran as a failed asylum seeker because ipso facto he would have prosecuted a failed claim for persecution abroad. The other thing your Honours will notice is that this country information demonstrates the risk of harm independent of any external political activity, that is, political activity or opinion independent of having been a failed asylum seeker.
Now, as I asked your Honours to note when we looked at the Secretary’s determination, this Amnesty report was not referred to at all by the Secretary in his discussion at appeal book 65 to 67. So it was not part of the country information which he said he relied upon in making his determination.
KIEFEL CJ: Is that the only one of the country information listed by the appellant, either before the Tribunal or in your submissions, that was missing from the Secretary’s list?
MS HARRIS: It was all missing, your Honour, so I am working my way through our paragraph 31 - - -
KIEFEL CJ: Do you think we could have some kind of tabular piece of paper prepared for us which indicates what was missing from where and the particular point that is said to arise from it, at the conclusion of the hearing?
MS HARRIS: Absolutely, your Honour, yes. I propose to address that in my oral submissions but we would be more than grateful to reduce that to writing, your Honour. At appeal book 99 to 100, your Honours see the reference to the Swiss Refugee Council August 2011 report. To answer your Honour the Chief Justice’s question, your Honour sees in the penultimate line, as quoted and translated by the Austrian Centre for Country of Origin and Asylum Research and Documentation - that is the ACCORD report which was referenced in the Secretary’s list. This is the subject of our paragraph 31e. Your Honours see that the quote which commences at the top of appeal book 100 refers to authorities dealing with:
returned asylum seekers in an ‘arbitrary’ and ‘unpredictable’ manner.
That is the first line. Then the full quote refers to two cases of returned asylum seekers who were detained immediately upon arrival. The first gentleman was detained:
immediately upon his arrival and subjected to ill-treatment in prison. He was waiting for his verdict at time of reporting. In another case, a female asylum-seeker was arrested after her deportation to Iran although she had no political profile. She was reportedly released on bail, with no information available on the charges brought against her.
So, that is important, your Honours, because that was country information that suggested, regardless of independent political activity or profile, you are liable to be detained and charged as a returned failed asylum seeker. As we noted when we looked at the Secretary’s determination, this report – the ACCORD report – and the Swiss Refugee Council report referred to in it – was not referenced at all by the Secretary in his discussion at appeal book 65 to 67.
Further down at appeal book 100, the next heading is “Iran Human Rights” and it quotes a spokesman for Iran Human Rights in March 2011. This is referenced in our paragraph 31b and the effect of the quote is exposed by the last sentence:
This means that seeking asylum by itself could be a reason for the Iranian authorities to subject to asylum seekers who are extradited to Iran to punishment, imprisonment and ill-treatment.
Again, we say, that is what engages Nauru’s obligations under the Torture Convention, and others, to which I will make brief reference.
This article was referred to by the Secretary but he did not rely on this part of it. So one sees at appeal book 65 – if your Honours could leave one hand at 100 and just turn back briefly to 65 – your Honours will see at footnote 13 a reference to an article “Teenager imprisoned after being deported to Iran” and if one follows the source of footnote 13 – it is at the end of the first paragraph:
In the most recent of these cases Rahim Rostami, an Iranian Kurdish asylum seeker who is reported to have appeared in a television documentary during his time in Norway, is alleged to have been imprisoned after being forcibly returned to Iran.
So, the Secretary does not, in his discussion, reference the country information set out at appeal book 100 to the effect that Iranian authorities have recently signalled that Iranians who have sought asylum abroad should be charged for dissemination of false propaganda and that means that seeking asylum by itself could be a reason for the Iranian authorities to subject asylum seekers who are extradited to Iran to punishment, imprisonment and ill-treatment, though he did not deal with the implications of that part of the material.
KIEFEL CJ: As I understand it, you make two points. It is not really so much directed to the Secretary but that the Tribunal, by accepting the limited material the Secretary was referencing, has not captured all the material. Here, the particular circumstance is that this material was put before the Tribunal and the inference to be drawn is that it did not have regard to it.
MS HARRIS: Indeed. It did not perform its statutory task of evaluating the material and weighing it. It simply - - -
KIEFEL CJ: Or even looking at it.
MS HARRIS: Even looking at it, your Honour. We say that because it could not have made the statement it did in paragraph 96, that there was no evidence to the effect that if you left lawfully you would not be harmed upon return. It could not have made that statement because there was evidence to that effect and there was country information to that effect.
At appeal book 100 to 101, Article 19 is quoted in some 2014 publications. This is referenced in our paragraph 31f. Your Honours will see in the quote commencing at the bottom of page 100 and going on to 101 that Article 19 effectively refutes the statements which had been made by the Iranian Expatriate Affairs spokesman, Hassan Qashqavi. Mr Qashqavi’s statements had been relied upon by the Secretary at appeal book 66. Your Honours see that in the first full paragraph.
So the Secretary positively relies on what is said by Mr Qashqavi to the effect that there is nothing to fear. The country information before the Tribunal refuted those statements. The final piece of country information is at appeal book 104. In the middle of the page or almost at about point 4 on the page your Honours see:
As the United States Department of State have reported –
I beg your pardon. I should have said that, with respect to the last piece of country information that I have referred to, it is conceded by the respondent that that was not before the Secretary at all, and it is not referred to in his list on pages 6 to 7 of his reasons.
Circling back to appeal book 104, there is a reference to the United States State Department report. This is referenced at our paragraph 31c and it is to the effect that detainees and prisoners in Iran have been subject to torture and abuse. Your Honours will see from the footnote that it was published on 25 June 2015, so it only just predated the Secretary’s determination of August 2015. It was highly recent information, which of course is important.
KIEFEL CJ: That might cut both ways. It might not have reasonably been available to the Secretary.
MS HARRIS: The criticism is not of the Secretary, your Honour. The criticism is of the Tribunal.
KIEFEL CJ: The Tribunal. This does not refer to failed asylum seekers so much as detainees. So is this a complementary protection claim?
MS HARRIS: Indeed, your Honour. Rather than recite them at length, might I refer your Honour to the matters set out in our primary submissions at 32b. In paragraph 32, we address the two elements of the claim as your Honour explored with me earlier.
KIEFEL CJ: This is by a chain of events, is it – 32b? So that if you are detained - - -
MS HARRIS: Yes.
KIEFEL CJ: - - -because of your status which supports the claim to refugee status, then you are subject to what follows in detention in Iran. But if you are right about the first one, the second one is rather redundant, is it not? To be detained, you have to have been treated badly and detained as a result of being a failed asylum seeker.
MS HARRIS: No, it works the other way. If one makes out one’s claim to refugee status, then I agree, your Honour, the complementary - - -
KIEFEL CJ: You do not need to go to this.
MS HARRIS: - - -becomes redundant. But the point of this was that if he were not to make out his primary claim and he were returned to Iran, he would be stamped, as it were, as a failed asylum seeker. The country information, to which I have just taken the Court, indicates that that put you at material risk of at least being detained if not charged and that then engages the risk of inhumane treatment meted out to people who are detained or imprisoned in Iran. So, that is the thing that engaged the obligation to consider both the primary claim and the claim for complementary protection.
Your Honours see in the footnote to 32b, the various international obligations of Nauru that were potentially engaged – or potentially engaged its non-refoulement obligation in section 4(2) of the Refugees Convention Act. Those various international obligations are referred to in our authorities but unless your Honour wanted me to I was going to content myself with a simple reference to the footnote.
The US Department of State report, as I say, was not before the Secretary. There is no dispute about that. Can I finally note the submission at appeal book 105 which is made off the back of the country information which precedes it, namely that:
I interpolate that by this stage the appellant did not have such documents:
The nuance of the submission which was not considered by the Secretary is this. The first point is that the country information establishes the potential for ill-treatment upon return as a failed asylum seeker simply because one is a failed asylum seeker. The second element is that, even if one accepts that it is only those who return to Iran, having expressed some adverse political view, who are at risk of harm, the very fact of making an application for refugee status on the ground of well-founded fear of persecution imputes one with a political opinion adverse to the regime.
That is the submission that was put to the Tribunal, as the Tribunal understood, because it recites it, in effect, at paragraph 66 – I beg your pardon, at paragraph 66 of the Tribunal’s reasons, which is at appeal book 193 - this is important because it is at this paragraph that the Tribunal puts to the appellant effectively what the Secretary decided: you are only risk if you have a profile as a political activist and you have not made a claim that you are a political activist. So at 66 the Tribunal puts that to the applicant, but the submission that was made in response is adumbrated at paragraph 69. Critically, at the top of appeal book 194, the appellant’s representative noted:
that as a failed asylum seeker, he would suffer harm amounting to persecution for reason of his imputed political opinion.
KIEFEL CJ: In relation to what the Tribunal may be taken to have read in relation to the materials sent under cover of the letter of submissions of 29 November, we see at paragraph 34 on appeal book 187 the Tribunal itself referring to the applicant’s further statement, which was one of the annexures to it. It is having regard to it, and it is clear that it had regard to the submissions. At paragraph 69, to which you have referred, it is being taken back to the written submissions.
MS HARRIS: Your Honour, that is the point that the respondent puts against us. The respondent says - - -
KIEFEL CJ: Why would you not infer that it has read everything?
MS HARRIS: Because when one looks at the critical reasoning – to which I am now going to turn back – it is impossible to conclude that the Tribunal actually evaluated that part of the submissions.
KIEFEL CJ: We are in the area of procedural fairness or failing to have regard to evidence? How do you identify the error that we are concerned with?
MS HARRIS: Your Honour, we say that it is a failure, in effect, to perform the statutory task.
KIEFEL CJ: Which statutory task is that?
MS HARRIS: That is the statutory task which arises by reason of a combination of the provisions of the Refugees Convention Act.
KIEFEL CJ: This is to be implied – the combination of section 22 - - -
MS HARRIS: Firstly, your Honours, sections 5 and 6, which engage the process, as it were – the application for refugee status and determination of the same including any - - -
KIEFEL CJ: This is of the Refugees Convention Act 2012?
MS HARRIS: Yes, I beg your pardon, your Honour, it is. So that engages the commencement of a process – the application for refugee status or a claim for complementary protection and section 6 requires the Secretary to determine the same. Then, the Tribunal’s function is set out in paragraph 31 and that sets out that the Tribunal’s obligation is to conduct a merits review. Section 22, as your Honour observed, requires the Tribunal, for that purpose, to accord procedural fairness. Critically, in 34, the Tribunal is, in effect, required to either affirm the determination or set it aside and, for that purpose, in subsection (4):
(a) sets out the decision of the Tribunal on the review; and
(b) sets out the reasons for the decision; and
(c) sets out the findings on any material questions of fact; and
(d) refers to the evidence or other material on which findings of fact were based.
KIEFEL CJ: But how do you actually articulate the error? Is it failure to have regard to available evidence – evidence before it?
MS HARRIS: Perhaps I can answer that question by reference to what the Full Court of the Federal Court determined with respect to the parallel provisions in the Australian Migration Act in The Minister v MZYTS & Anor [2013] FCAFC 114; (2013) 230 FCR 431. That case concerned the parallel suite of statutory provisions which conferred a similar review function on the Refugee Review Tribunal and, in particular, those statutory provisions had a direct parallel with section 34 – to which I just took your Honours – in 430 of the Migration Act.
Now, in this case the applicant for refugee status had made some post-hearing submissions that contained country information that was relevant to his claim for asylum. The Tribunal held adversely to the appellant but made in its reasons no reference to the post-hearing submissions.
The Full Court discusses – perhaps starting at paragraph 37 – what those provisions required of the Tribunal. Your Honours see at paragraph 37 on page 444, firstly, the identification of a Convention basis for protection. Then their Honours say in the last sentence:
This basis, together with the terms of ss 65 and 36(2)(a), read with the content of Art 1 of the Refugees Convention, required the Tribunal to assess and determine what might happen to him if he were compelled to return there in 2011, or in the near future thereafter.
That task could not be lawfully undertaken without a consciousness and consideration of the submissions, evidence and material advanced by the visa applicant most likely to give the Tribunal an accurate picture of the ongoing circumstances on the ground in Zimbabwe for him if he were to be returned there.
I will leave your Honours to read the balance of the paragraph. At paragraph 39:
The Tribunal’s reasons do not disclose that it understood and undertook this task. Rather, the reasons – including what is expressed and what is not – disclose the Tribunal did not assess in any real or active way what the situation would be in mid to late 2011 or thereafter for an “ordinary” MDC supporter - - -
KIEFEL CJ: At paragraph 38, it is accepted that it is certainly the case that the applicant must:
advance whatever evidence or argument she [or he] wishes to –
It then goes on to discuss, that having occurred, what the Tribunal must do under its statutory obligation. Is there a question here? Really, what you are saying is because appendix 2 was supplied that the Tribunal was, without more, obliged to proceed to review what was put forward and assess it in light of the claims. But at paragraph 69 of the Tribunal’s reasons, appeal book 193, the representative is making submissions to the Tribunal by reference to the written submissions of 29 November and is dealing with this topic.
Is it at all relevant that it would not appear that the representative -or it is unknown whether the representative articulated this by reference to appendix 2 and drew the Tribunal’s attention specifically to appendix 2? Are we to look at both sides of the coin or is the statutory obligation so clear that it does not matter what the representative fails to do?
MS HARRIS: We say several things about that, your Honour. The first thing to note is that paragraph 69 of the reasons tells you what the Tribunal says the appellant submitted. It does not tell you anything about the Tribunal’s evaluation of those submissions.
KIEFEL CJ: No, but the question is, this was the point at which you would expect a legal representative to point to appendix 2.
MS HARRIS: So your Honour sees from the transcript - the Tribunal’s transcript is at appeal book 125 and following and your Honours will see that in the way of these things, most of the hearing is taken up with the evidence of the appellant as opposed to legal submission but the representative has the opportunity for legal - - -
KIEFEL CJ: Well, just about all of this is taken up with statelessness. These topics were not front and centre for a lot of this.
MS HARRIS: Well, indeed, but, your Honour, the Tribunal is the one asking the questions.
KIEFEL CJ: Certainly. You take us to where this is dealt with.
MS HARRIS: So, at appeal book 177, Ms Teede, who is acting for the appellant, says at the top of the page:
So thank you. I do acknowledge and thank you for putting forward your concerns and as to credibility also, and in response we will be relying heavily on our written submissions which you have referenced, and also statements of our claim submitted in May 2014 and November 2015.
So, the hearing is an occasion for fact finding as opposed to detailed legal submission. The detailed legal submission is provided in writing but it was expressly relied on, as your Honours see, by the appellant’s representative. In the same way, in MZYTS, the position was more acute because the submissions were submitted post-hearing, so there was no further opportunity for oral hearing but that did not diminish the obligation of the Tribunal to evaluate that material.
So, your Honours see firstly of relevance, is the discussion at paragraph 48 of the decision, through to 50, where the Tribunal deals with the same submission, the same kind of submission, as the respondent makes here. The respondent here says, well, just because they did not refer to it does not mean they did not take it into account. The Full Court explains here why that submission had to be rejected. Your Honours see at paragraph 49:
The Court is entitled to take the reasons of the Tribunal as setting out the findings of fact the Tribunal itself considered material to its decision, and as reciting the evidence and other material which the Tribunal itself considered relevant to the findings it made -
Now, the Court is so entitled because section 430 of the Migration Act and section 34(1)(d) of the Nauruan Convention Act so requires the Tribunal. So the Court is entitled to assume that the Tribunal has complied with its statutory mandate of setting out those matters and they go on:
Representing as it does what the Tribunal itself considered important and material, what is present – and what is absent – from the reasons may in a given case enable a Court on review to find jurisdictional error . . .
We do not accept the Minister’s submission. The Tribunal’s reasons disclose no process of weighing evidence and preferring some over the other. In the context of two or more pieces of apparently pertinent, but contradictory, evidence an expression of a preference for some evidence over other evidence generally requires an articulation of the different effects of the evidence concerned, and then some indication as to why preference is given. All these are matters for the trier of fact. The absence from the recitation of country information of the material referred to in the post-hearing submissions is indicative of omission and ignoring, not weighing and preference.
That finding, we say, could have been written for the present case. To circle back belatedly, perhaps, to your Honour’s question, the relevant part of the judgment commences, I think, at paragraph 63, under the heading “is the error jurisdictional?” and your Honours see that the Full Court concluded:
It will be apparent from our reasoning to this point that it is our opinion the error made by the Tribunal is jurisdictional. The Tribunal failed substantively to perform its statutory tasks. Its reasons do not disclose it formed a state of satisfaction one way or the other about whether as at November 2011 there was a real chance of the visa applicant suffering persecution, by reason of him being or being perceived to be a MDC supporter and member –
et cetera. We commend what then follows to your Honours’ consideration – picking up, as it does dicta in Yusuf and this Court’s decision in SZJSS and Kirk. Paragraphs 65 to 68 really, we say, answer your Honour’s question. At 65, the Full Court says:
Here, the visa applicant’s contention has never been that the Tribunal failed to take into account a piece of evidence. Rather, it is that the Tribunal did not perform its statutory task, because it failed to determine the visa applicant’s claim that the risk to him on return to Zimbabwe from early 2011 onwards had increased –
Paragraph 66:
The visa applicant’s contention is correct –
Paragraph 67:
We consider this approach to be consistent with Yusuf –
Then it goes on to talk about this Court’s decision in SZJSS which explores the concept of jurisdictional error in this regard. It:
may include ignoring relevant material in a way that affects the exercise of a power –
They say – it describes an example of jurisdictional error:
where, in a given case, ignoring relevant material demonstrated a failure to perform the statutory task cast upon it by the combined provisions in the Migration Act because of the nature of the claims made and the nature of the material ignored.
That is what we say here.
GAGELER J: What I am saying is not against you, I think, but your case is a failure to perform a statutory task of just a slightly different nature. You say that what has been conducted does not amount to merits review within the meaning of the statute.
MS HARRIS: I do not disagree with that proposition, your Honour, and I think it is because - as we saw from earlier in this really helpful judgment, merits review involves this process of weighing the available information and evidence and ultimately coming to a determination of what conclusion is preferred. But that process of weighing is an indispensable part of the statutory function. One cannot conduct a merits review without it.
So our criticism is not so much of the reasons that were given – so we do not say, as the respondent seems to suggest in its submissions, it is suggested that we allege a breach of section 34 of failure to set out the findings. That is not the burden of our argument. We say that against the background of section 34, and knowing that there is an obligation to set out the reasons and factual findings, when one looks at paragraphs 95 to 97, the court in this case, as was the Full Court in MZYTS entitled to take those reasons at face value. Those reasons say we agree with him for the exact reasons that he gave, based on the evidence that was before him: the country information set out in the Secretary’s decision.
They put it beyond doubt by saying there is nothing before the Tribunal that indicates that making an asylum claim in another country, after having left lawfully, will bring him to the adverse attention of the authorities. One could not make that statement if one had read and evaluated the country information in appendix 2.
KIEFEL CJ: If the Tribunal had said, “I have read appendix 2 and no more,” you would say that that would not be sufficient to discharge the statutory obligation?
MS HARRIS: That is so, your Honour, because in this case the information suite had changed since it was before the Secretary, so one could not simply say, “I have read appendix 2, I have read the Secretary’s reasons and I agree with him.” As fell from the Full Court in MZYTS, it has to be apparent that the Tribunal has undertaken the statutory task of actually weighing - - -
KIEFEL CJ: The question is: what is that statutory task?
MS HARRIS: Your Honour, we respectfully submit that it was correctly identified by the Full Court, that it is an evaluative task. You cannot evaluate unless you read, you cannot evaluate unless you consider, and you cannot evaluate unless you weigh.
KIEFEL CJ: But if you read it in light of the Secretary’s decision, you would probably be evaluating as you read it, would you not?
MS HARRIS: Your Honour, one can see situations where it might be appropriate, as I say, where the information suite is the same and the Secretary has, in effect, done the Tribunal’s job by setting out all of the relevant considerations which might flow from the material. One sees it. It is a judicial shorthand, if I might say, that is not infrequently deployed, where a superior court might say, “For the reasons set out in paragraphs X to Y, the decision below, we agree.”
What that shorthand does, in effect, is elevate the findings below and import them into the decision of the higher power. That is not what happened here and it is not what could happen here, because, as we demonstrated, the Secretary failed to have regard to those six critical pieces of information that directly contradicted – directly contradicted – the conclusions which he drew and which were then echoed by the Tribunal.
While in theory it might be a permissible course, it is not one that was open to the Tribunal here because the information suite is different and there was information there that it was required to evaluate. As the Full Court said, even if it is to reject it, it was at least obliged to give an indication that it had considered it and determine why it should be rejected.
KIEFEL CJ: How does one say why you reject country information?
MS HARRIS: The Secretary’s statement - - -
KIEFEL CJ: It is weighing an imbalance, I suppose. It is a bit of a fraught procedure, really, is it not? It is to express preference for the weight - anyway, that is a matter for tribunals, what weight they give. Your point is that that task has not been undertaken.
MS HARRIS: The Secretary had a go at that. He did not take into account all of the information he should have, but we are not here to criticise the Secretary, because at least he said, “I have looked at all of the information I have listed above and I have weighed it up and this is where I come out.” He exposed a path of reasoning – whether he was right or wrong – and some factual findings in a way that the Tribunal simply did not.
Now, the respondent’s submissions say well, even accepting that the Tribunal had before it country information that was not before the Secretary, it does not matter because that country information could not have made any difference to the outcome. The response to that submission is a very simple one. Whether or not it would have made a difference is a matter for the trier of fact, which is not this Court but the Tribunal.
Again, the discussion in MZYTS at paragraph 50 is very helpful in that regard and we would also rely on what fell from this Court in The Minister v SZJSS [2010] HCA 48; (2010) 273 ALR 122 at paragraph 33. That makes clear that this process of evaluation is not one for this Court but for the trier of fact. If the Tribunal has failed to discharge its statutory function, as we say, then the proper course is to send it back to discharge that statutory function.
It is not just a matter of looking at additional pieces of information and working out whether it could have made a difference. The statutory task involves looking at the entire suite of information, weighing it and drawing a conclusion. The correctness of that proposition was reinforced by this Court’s decision in BRF038, to which we will turn shortly.
That completes what I wanted to say about our first ground of appeal. The second ground of appeal is founded on contentions which are, se say, relevantly indistinguishable from those which were accepted by this Court in BRF038 v Nauru (2017) 349 ALR 67. I will come back to that case momentarily.
As I submitted earlier, the Tribunal in this case made two compounding errors. The first error was that it decided his claim adversely to him on a basis which had not been argued and was not put to him. He was therefore not accorded procedural fairness as required by section 22.
Now, to orient it in the Tribunal’s decision, we see it from paragraphs 90 and 91 at appeal book 198 and this is where the appellant’s claim to refugee status based on race was considered. We start at about point 4 of the page in the penultimate sentence of the first full paragraph starting “However”:
However, there is nothing before it which indicates that there is a real possibility that harm amounting to persecution will befall the applicant simply because of his ethnicity.
It explains that conclusion by noting two pieces of country information:
The Tribunal notes the following country information:
‘It was considered that generally, no matter what ethnic or religious background, an individual has, if he or she plainly accepts and lives by the Islamic regime, he or she will be left alone. However, there is institutional discretion in Iran and it would for example be harder for a Kurd to get a job compared to a Persian Iranian . . . it was considered that Kurds would be subject to harsher treatment from the authorities than ethnic Persians.’
And further:
‘While the constitution grants equal rights to all ethnic minorities and allows for minority languages to be used in the media and in schools, minorities did not enjoy equal rights, and the government consistently denied their right to use their languages in school. In addition, the Gozinesh (selection) law prohibits non-Shia ethnic minorities from fully participating in civic life. The law and its associated provisions make full access to employment, education, and other areas conditional on devotion to the Islamic republic and the tenets of Shia Islam.’
The critical conclusion is in 91:
The Tribunal accepts that Kurds and other minorities may face discrimination in Iran, but particularly notes that certain discriminatory provisions apply only to those who are not Shia Muslim. The applicant is part of the majority religion. He has stated that he is not involved with any political or other organisation . . . There is nothing to show that he does not “accept and live by the Islamic regime” and that he will be marked out as the object of adverse attention from the authorities.
About to turn as I am to BRF038, we know - - -
KIEFEL CJ: Just before you do, did the Secretary make the finding that he was a Shia Muslim?
MS HARRIS: No.
KIEFEL CJ: It is the Tribunal that first makes that finding?
MS HARRIS: Yes. As I will come to, your Honour, that is the second error that was – the compounding error. It was not dealt with in the evidence. It was not discussed. He was not asked any questions about it. His religion simply was not on the table. But I will circle back to it, your Honour.
Your Honour, indeed the only indication of his religion was – at the moment he was asked whether he wanted to give an oath before his evidence commenced and he said, “No, I want the non-religious option.” Again, I will come back to that momentarily.
The country information that the Tribunal relies on that provided a member of an ethnic minority plainly accepts and lives by the Islamic regime and is devoted to the Islamic Republic and the tenets of Shia Islam was clearly credible, relevant and significant to its decision on this element of his claim.
Now, in BRF, if your Honours have that decision - your Honours might remember this was the first of the Nauruan cases, if I might call them that, decided by this Court and it was a case where the appellant, who was a Somalia asylum seeker, successfully claimed a denial of procedural fairness.
The Tribunal had dismissed his claim to a well-founded fear of persecution as a member of a minority group relying, amongst other things, on country information to the effect that there are police from every tribe in Somaliland, so he had had some redress from the acts of others. Your Honours will see that country information and the relevant quote at paragraph 27 of the decision at line 15 of page 72.
On appeal, your Honours will see paragraphs [31] to [34], in particular paragraph [33], it was accepted by the Supreme Court that that aspect of the country information had not been put to him. Your Honours see – my lines are missing, but it must be about line 15 – at the beginning of paragraph [33]:
The appellant’s contention that he was not accorded procedural fairness by the Tribunal was based on the Tribunal’s reliance upon country information that the Somaliland police comprised members of every tribe. This was said to be information that the Tribunal ought to have put to him so that he would have been allowed to respond. The Supreme Court accepted that the country information regarding the tribal composition of the Somaliland police, upon which the Tribunal acted, had not been put to the appellant, but held that the information was not “critical to the decision”, and therefore that this failure was not a breach of the rules of procedural fairness.
Now, this Court disagreed with the Supreme Court and allowed the appeal. The critical reasoning is at paragraphs [57] through to [64]. Your Honours see at paragraph [57] the argument that was accepted in this Court and it has significant parallels, we say, with the current case.
The appellant argued that the hearing before the Tribunal was conducted without reference to the appellant’s capacity to avail himself of effective police protection against mistreatment by reason of the fact that the Somaliland police force included members of his tribe. The appellant argued that the country information relating to the tribal composition of the Somaliland police was credible, relevant and significant to the decision the Tribunal would make. It followed that fairness required that the Tribunal ought to have put the substance of that information to him. Its failure to do so, the appellant argued, constituted a breach of the requirements of procedural fairness contemplated by s 22 of the Refugees Act.
In paragraphs [58] and following, the Court explores, by reference to SZSSJ and SZBEL, the content of the procedural fairness requirement. For example, we see at paragraph [58] that:
a person whose interest is apt to be affected by a decision be put on notice of “the nature and content of information that the repository of power undertaking the inquiry might take into account as a reason for coming to a conclusion adverse to the person”.
The quote in the next paragraph emphasises:
That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker.
Your Honours see what the respondent argued at paragraph [60], that:
the disclosure of such information was required only in relation to “the critical issue –
and it said have a look at paragraph 27 – there were lots of reasons it failed. It was not critical. But that proposition was rejected – paragraph [61]:
The respondent’s reading of the Tribunal’s reasons in this respect is unsustainable. It cannot be said that the Tribunal’s observation as to the composition of the . . . police force did not significantly affect its assessment of whether the appellant was likely to face persecution –
It went on at [62] to say that the reasons demonstrated, in effect:
that the information was integral to the Tribunal’s conclusion.
The point in paragraph [63] is also an important one because it emphasises, if you like, the reasons why the question of the relevance of the material is really one for the trier of fact because it is that – the Tribunal of fact which must weigh the evidence and decide whether consideration of particular information tips the balance one way of another. It is pointed out here that:
whether a person suffers a well-founded fear of persecution is a question of degree and proportion –
hence the weighing:
That the country information concerning the composition of the Somaliland police was indeed integral to the Tribunal’s conclusion is supported by the consideration that the presence of Gabooye tribal members in the Somaliland police force might be apt to counter, or limit, the harsh effects of discriminatory treatment of the Gabooye by higher caste groups. When that consideration is not available, it is easier to conclude that the harm from the discriminatory mistreatment faced by the appellant is likely to be so sustained and systematic that it can properly be characterised as persecution.
We say, likewise here, if you eliminate from the Tribunal’s reasoning, its consideration that devotees of Shia Islam and the Islamic Republic will not face discrimination, even if they are Kurds, it must become easier to conclude that the appellant’s case is on the other side of the line.
Certainly, it is impossible to say, having regard to the reasons of the Tribunal, that information which contradicted the country information relied on by the Tribunal or the proposition that he actually adhered to Shia Islam and the regime could not have possibly have made a difference.
That is the final paragraph of relevance, with respect, from BRF038 where the Court emphasised that if he had been on notice that this was likely to be relevant to an adverse determination, he may have been able to put on other country information that denied the effect of the country information relied upon by the Tribunal. He may have been able to point to other aspects of that country information which denied the inference. He may have been able to make submissions that persuaded the Tribunal that it should not lay any weight on that element of the country information.
There, as here, because it simply was not an issue, the appellant was denied the opportunity to rebut the Tribunal’s conclusions, even at the general country information level or at the personal level, because he was not on notice of them.
KIEFEL CJ: The Tribunal finds at the outset, at paragraph 7 on page 183 that:
He is a Shia Muslim –
but you say that there was no discussion about that, there was no finding by the Secretary, no evidence about it and no discussion about it. He was never described in that way by his legal representative?
MS HARRIS: No, your Honour. To be frank with your Honour, I had actually overlooked that reference because it simply was not an issue. There was no - - -
KIEFEL CJ: It just seems strange for the Tribunal to put it in the early part of its narrative as if it is not in contention.
MS HARRIS: I think it is because it did not matter; it was simply a recitation of what it apprehended to be the facts. My best guess as to where that comes from is the tick-a-box aspect of the transfer application. The very first document in the appeal book is the record of transfer interview, which your Honours see is largely a tick-a-box exercise. At appeal book 9 - - -
KIEFEL CJ: The religion is Shia.
MS HARRIS: Yes. One has to put it in. The problem with relying on that, your Honour, is that it begs more questions than it answers.
KIEFEL CJ: It has not been challenged, though.
MS HARRIS: I beg your pardon, your Honour?
KIEFEL CJ: You say it has not been challenged at any point by him.
MS HARRIS: Because he did not think he needed to.
KIEFEL CJ: But it comes from him.
MS HARRIS: Your Honour, the nature of the form implies that you have to put something in there.
GAGELER J: What about page 82, line 11?
MS HARRIS: Page 82 – so, this is relied upon, this is the high point of our learned friend’s submission which is to the effect that definitionally:
Faili Kurds are Shi’a Muslim Kurds -
Now, we say several things about that - that bald statement, even if accepted at face value, does not tell you anything about the personal circumstances of this gentleman but - - -
GAGELER J: But it does, does it not, when it is appendix 1 to a submission put to the Tribunal on his behalf.
MS HARRIS: Your Honour, the finding of the Tribunal was that he was an adherent to Shia Islam. Now, he is part of the majority religion. There is a difference, with respect, between that bald high-level statement which was not relied upon by the Tribunal I must say, when the Tribunal came to describe what a Faili Kurd was. Your Honour sees this at paragraph 54 at appeal book 190. It says nothing about their religious orientation. It fixes on the more familiar factual context that Faili Kurds were:
those with Iraqi connections: that is, those expelled from Iraq by Saddam Hussein in 1359 -
which I assume is the Islamic year, not the western year. But the Tribunal had not seized upon that, as it were, certainly had not put to him that his religion was remotely relevant.
GAGELER J: No, but you are looking at the characteristics or perceived characteristics of an ethnic group.
MS HARRIS: Yes, your Honour.
GAGELER J: Religion is not per se what the inquiry is. It is, as the Tribunal puts at 198, it is race or probably more correctly, ethnicity.
MS HARRIS: Your Honour, with respect, I say that is a point in my favour because what is being examined here - your Honour is perfectly correct - is the man’s race. What is in issue here is the man’s race, not the man’s religion. The man’s religion was never in issue and so he could not have thought there was anything remotely significant about the tick-a-box answer that he had given on appeal book 9. He could not have thought there was anything remotely significant. His representatives could not have thought there was anything remotely significant about the bald statement at the start of appendix 1. They could not have thought there was anything remotely significant about it.
KIEFEL CJ: Do the two quotes - pieces of country information which appear in paragraph 90 of the Tribunal’s reasons - are they to be found expressly or by reference in the Secretary’s decisions?
MS HARRIS: One of them yes and one of them no.
KIEFEL CJ: What about the second one then, which refers to non-Shia ethnic minority?
MS HARRIS: No, your Honour.
KIEFEL CJ: It is not there.
MS HARRIS: No. The first quote is – it is worth looking at the context, your Honour, because the Secretary refers to it but he does not make any point about religion. Your Honours see it at appeal book 64, in the middle of the page, the quote from the Danish Refugee Council. This is in the context of a discussion, to return to what your Honour Justice Gageler put to me, of the man’s ethnicity, his Kurdish ethnicity.
No significance was placed on his religion by the Secretary at all. There is no suggestion in his discussion either there or in the context of failed asylum seeker that being a Shia Muslim means you will be left alone and this man is a Shia Muslim, so that is another reason why his claims are not well founded.
KIEFEL CJ: Ms Harris, if this point was not made out and the Court was against you in relation to whether or not the fact that he was a Shia had risen before, does ground 2 then resolve itself on whether or not the Tribunal was obliged to bring to his attention the material upon which it relied in relation to his Kurdish ethnicity otherwise, whether Kurds face discrimination?
MS HARRIS: Whether he was Shia or not, he was obliged to bring this to his attention so that he had the opportunity to say either, for example, that is not the way you should read that country information. When you look at it in its proper context it does not imply that adherents to Shia Islam have a leave pass.
One needs go no further, I think, than this present case. You see, to take up your Honour Justice Gageler’s point about the definitional reference, if it were the case that all Faili Kurds were adherents to Islam, then they would all have a leave pass, they would all be protected. That would constitute a shield for all of them from persecution.
The appellant’s submissions were replete with country information that proved the very opposite proposition that Faili Kurds were vulnerable to persecution and particularly so. There is a whole appendix, appendix 1, devoted to that topic. So, if the proposition had been put to him, no doubt he would have made submissions to the effect that that conclusion is not open on the country information. He would have had an opportunity to provide additional country information which showed that that conclusion should not be drawn and he would also have had a chance to grapple at an evidentiary level with the proposition that he was actually an adherent to Shia Islam.
The Tribunal found that he was obviously Kurdish - to an external observer he was obviously Kurdish. Your Honours see the evidence summarised at paragraph 88, at appeal book 197 to 198. In that paragraph they accept that he had experienced discrimination because of his ethnicity. He had been harassed because he was wearing traditional Kurdish garb. He had experienced societal discrimination because he was identifiably Kurdish because of his accent. The thing that was obvious to people was that he was Kurdish, and the Tribunal accepted that that made him vulnerable to discrimination.
There was no finding that could justify a conclusion that he was obviously – that is obvious to others - an adherent to Shia Islam. It is not enough to think it in your head. In order for people to reach the conclusion, “I am going to leave you alone because you are an adherent to Shia Islam and a supporter of the regime” you have to do something to lead them to that conclusion. There was just no evidence on that topic.
KIEFEL CJ: Ms Harris, the form that he filled in, where he put his religion as Shia in, was filled out with the assistance of qualified interpreters, was it not?
MS HARRIS: Yes.
KIEFEL CJ: Now that you are not pursuing the idea that he did not know what he was doing because he was on ice withdrawal there is nothing to suggest really that he did not know what he was saying if that is what is translated.
MS HARRIS: With respect, that is not the submission we are putting.
KIEFEL CJ: Interpreted, I should say.
MS HARRIS: That is not the submission I am putting to the Court. The submission I am putting to the Court is that he could have had no concept of the significance of that answer. He could have had no concept of the significance of that answer.
KIEFEL CJ: You mean he would have answered it differently if he had known that it was an issue?
MS HARRIS: He might have done what he did when he was asked at the commencement of the hearing. The only time his religion was put in issue was at the commencement of the hearing, at appeal book 127, when he was asked:
do you want to take a religious oath on the Koran or an affirmation, which is a non-religious but solemn vow to tell the truth?
This is at lines 36 to 38. His response is:
Non-religion -
line 40. That is the only time, with respect, that he was asked a question about his religion in a way that suggested it had any significance. He had to make a choice because it determined whether he took an oath or not. But the earlier answer could not have suggested to him that it had any significance, certainly without notice of what might be put against him by reference to the country information.
GAGELER J: Can we just take these two pieces of country information – if you turn to page 90?
MS HARRIS: Yes, your Honour.
GAGELER J: Now, the first piece of country information – footnote 6, that was referred to by the Secretary?
MS HARRIS: It was.
GAGELER J: And the second? Where did that come from?
MS HARRIS: It came from the United States Department of State report. Now, that report is referenced at appeal book 104. This is important, your Honour, because - - -
KIEFEL CJ: So it is in the appendix 2.
MS HARRIS: Not the quote. So the reports are not delivered as part of the submission. The submission is, as you see it, an excerpt from the US State Department report. Now, the excerpt from the US State Department report, which formed part of the submission, had nothing to do with the quote excerpted by the Tribunal at 198.
GAGELER J: So, what was the Tribunal meant to do with the submission referring to that report at page 104? Was the Tribunal simply to look at the extracted part or was the Tribunal expected to go to the website, find the report and read the report?
MS HARRIS: Your Honour, the Tribunal could do either but if it chose to deploy some other aspect of the report against the appellant, then it was obliged to put him on notice of it. That is all. So it was not disentitled to rely on this country information but it did have to tell him that it may rely on this in order to determine his claim adversely to him, so as to allow him to engage with it. This contention simply was not run.
The transcript is a long one and the Tribunal asked many questions and as your Honour the Chief Justice observed, most of them are not relevant for present purposes. There was not a single question about this. There was no suggestion that it was an answer to his claim to say, well, you are an adherent to Islam, are you not? At the very least, that is what the Tribunal needed to do because for the reasons I was attempting to develop before, it is counterintuitive that all Faili Kurds are recognised as adherents to Islam and are therefore afforded the protection of that religion as a shield. That is impossible to sustain on the country information put forward and yet that is the burden of what the Tribunal found.
Now, as in BRF038, the problem here was not solved by saying, well, he put forward that report because an element of it was put forward, a paragraph of that was put forward for a completely different reason and if the Tribunal were to rely on a different aspect of that country information in order to find against him, it was obliged to tell him and allow him to make submissions and to be heard.
So our learned friends say, well, look so long as you have notice of a document or you put it forward then you cannot complain if that is used against you. That proposition cannot be accepted at that bald level, having regard to BRF038. The real answer is that supplied by the Full Court of the Federal Court analysis in the Alphaone Case, on which our learned friends rely. It is Commissioner for the Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576.
This was a case concerning procedural fairness. The question is discussed most keenly between pages 590 to 592. The proposition was, in effect, that if you have put forward or relied on information – your Honours see this at 591, about point 2 on the page:
A person likely to be affected by an administrative decision to which requirements of procedural fairness apply can support his or her case by appropriate information but cannot complain if it is not accepted. On the other hand, if information on some factor personal to that person is obtained from some other source and is likely to have an effect upon the outcome, he or she should be given the opportunity of dealing with it –
They refer to Kioa. Importantly, just before E on the page:
The general propositions set out above may be subject to qualifications in particular cases. Two such qualifications were enunciated by Jenkinson J in Somaghi –
The first and second are both important here:
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 –
That is our submission. He was entitled to have his mind directed towards what the Tribunal thought the consequence of this country information was so that he had an opportunity to deal with it.
GAGELER J: Is that the second point that is really square - - -
MS HARRIS: The second point is equally important, your Honour:
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 –
Again, we say that it falls into that basket because his religion just was not in issue. The adverse conclusion that might be drawn from that single line in each case was not apparent – it could not have been apparent, and we know that because it was not dealt with.
Despite what your Honours say to me about the state of the evidence, there was nothing, we say, that could have justified a conclusion that engaged the country information relied upon by the Tribunal. That country information spoke of the shield of religion being conditional upon devotion to the Islamic republic and the tenets of Shia Islam.
That is the submission that I was making to your Honours before. For those in authority to allow the appellant to invoke that shield, they would have to have been aware that he was devoted to the Islamic republic and the tenets of Islam, which somehow had to have been apparent to an external observer that that was so. There was no evidence at all of his adherence to Shia. The very high point of it was ticking the box on appeal book 9.
Now, there is one further thing I wish to note before we leave ground 2 and it is this. The error, which is the subject of the first ground, namely, the failure by the Tribunal to consider country information to the effect that failed asylum seekers are likely to be persecuted on return, regardless of profile, was in effect compounded by the second because if a proper evaluation of the country information demonstrates there is a real risk of harm as a failed asylum seeker per se and a fair evaluation of the available evidence demonstrated that the appellant was not in fact shielded by adherence to Islam, then the apprehended fear of persecution takes on a different light, as in BRF038.
Again, we say this is a matter for the Tribunal to go back and look at again properly in the light of all of the evidence rather than grabbing at little bits here and there. These are not errors around the margins or of trivial import because they went directly to the reasons why he failed.
Now, can I finally address the first matter which we identified? I commenced by noting that this appeal rests on two grounds that were not raised in the Supreme Court. Your Honours have seen our proposed amended notice of appeal. Our written submissions - - -
KIEFEL CJ: I think you can take it we follow your submissions in relation to the nature of the appeal to this Court and, as you mentioned at the outset, you have dealt with the matter on the basis I think to meet the second point raised against you- that is, that leave should not be given because of insufficient prospects of success. The remaining ground is in relation to evidence which might be necessary.
MS HARRIS: Yes, can I just address your Honour there on that. We do not really understand that second basis of objection because our submissions, we say, readily demonstrate that acceptance or upholding our grounds of appeal does not require this Court to go outside the four corners of the material that was before the Secretary of the Tribunal and the Tribunal’s decisions.
So there is no new evidence that is required in order to determine those grounds of appeal. On the contrary, our complaint is that evidence that was available below was not taken into account, but that does not require this Court to evaluate that evidence. As your Honour says, there is no suggestion of prejudice nor, with respect, could there be - - -
KIEFEL CJ: No, that is not raised against you.
MS HARRIS: Indeed, your Honour. So the only issue is merits and we have sought to demonstrate in our submissions that we have scaled the threshold. If your Honours please.
KIEFEL CJ: Yes, thank you, Ms Harris. Yes, Mr Knowles.
MR KNOWLES: Thank you, your Honour. Like my learned friend, I propose to deal with the question of leave to amend in the course of making submissions to the Court and then I will make some observations towards the end of my oral submissions about that issue.
I should just say at the outset it is not entirely clear that the arguments that were put in oral submissions, particularly in respect of proposed ground 1, correspond with the wording of that ground at the moment. Nonetheless, I will proceed to deal with it as has been put in oral submissions today particularly.
If I can deal with the first proposed ground which deals with the failed asylum seeker claim, my learned friend took the Court to the relevant passages in the Tribunal’s decision at paragraphs 95 and 96 and I briefly seek to do the same myself. Obviously, in my submission it was not a failing on the part of the Tribunal if it had considered all of the material before it then to say that nonetheless, having done that, it agreed with and adopted the reasoning and findings of the Secretary, provided that that reasoning and findings could still stand in the face of material that had been put subsequent to the Secretary’s decision.
I will come to why we say none of the material needed to be referred to expressly in the Tribunal’s decision in all of the circumstances and that the other references to the submissions that were made were adequate to indicate that the Tribunal had had regard to the submissions in question. The other matter this raised is that it is said at paragraph 96 that:
There is nothing before the Tribunal that indicates that making an asylum claim in another country, after having left lawfully, will bring [the applicant] to the adverse attention of the authorities.
That finding, in my submission, is predicated on there being country information in relation to leaving a country lawfully. In this case the appellant had claimed that he had left it unlawfully and that was not accepted and country information did not really specify one way or the other as to whether or not lawful departure would, in all the circumstances, lead to disclosure of a person having made an asylum claim while abroad.
If I can turn back to now the Secretary’s findings and in particular the country information that was before the Secretary and that first appears, as my learned friend indicated, at pages 60 to 61 of the appeal book and there the Secretary set out all of the material that was before him at the time of making the decision. In my submission, even if there was not an express reference to that material, in the reasoning of the Secretary that leads to particular findings, it was material that was taken into account at the time of the decision. Otherwise, why would one actually list it at all in the decision?
Now, the findings that were made in respect of the failed asylum seeker claim and that were agreed with and adopted by the Tribunal, appear at pages 65 through to 67 and, in particular at page 65 towards the bottom of the page, there is a reference to a joint report of the Danish Refugee Council and in that report it was stated that it was claimed:
that ‘approximately 60% of Iranians who have asylum in other countries, travel back and forth between Iran and other countries’.
Then over the page, there is a reference to more country information, some of which my learned friend has taken the Court to. Around about line 29 on that page, there is a reference to:
Several European countries, including Germany, Norway, Poland, Romania, Sweden and the United Kingdom reported having forcibly returned failed asylum seekers to Iran in 2013. No information could be located to suggest there had been any adverse treatment of such persons upon return to Iran.
Now, then one comes to the actual findings of the Secretary and those findings rest on what is said to be:
careful regard to relevant the country information discussed above.
But it does not mean that there was no regard given by the Secretary to the other country information that is referred to earlier in the decision and which relates to this topic. Importantly, in terms of the finding that was reached, it was accepted that there had been instances of detention and mistreatment of failed asylum seekers on return to Iran but the Secretary went on to say:
However, analysis of those reports indicates that, overall, those returnees had some profile of interest other than simply being a failed asylum seeker.
Now, in my submission, that finding goes to a general state of affairs as signified by the word “overall”. It is not suggesting that in each and every single instance there would be a case in which a person would only face a risk of harm if they had some profile other than just being a mere failed asylum seeker.
It is an assessment of all of the material which goes to the general state of affairs in assessing the risk that might be confronted by this particular appellant upon any return to Iran. But then over the page – and this harks back to the matter that I raised about lawful departure earlier – at the top of page 67 the Secretary observed that:
the RSD process is undertaken in a confidential manner and the detail provided by the Applicant to the Government of Nauru in support of his request to be determined as a refugee will not be disclosed to the Iranian Government.
Now, obviously the Secretary then goes on to say that there would need to be new travel documents obtained, given that the appellant was:
not currently in possession of an Iranian passport.
It is also accepted as:
plausible there may be suspicion that [he] had applied for protection abroad.
But again the Secretary finds that on the basis of his consideration of:
contemporary reports from reliable and independent sources . . . the Applicant would not be targeted by Iranian authorities for a Refugees Convention reason should he return to Iran using a new travel document.
Then your Honours will see the further conclusions that are reached by the Secretary as to the applicant not having any adverse political profile, his departure lawfully using a genuine passport in his own name and there being no information that he was the subject of any serious criminal charges in Iran and he had not asserted as such. On that basis, it was found by the Secretary that the Secretary did not accept that:
an assessment of the Applicant’s background would result in the authorities taking any adverse interest in the Applicant on return to Iran.
Likewise, it was not accepted:
that his status as a failed asylum seeker would give rise to a cumulative risk of persecutory harm on return.
So that is the reasoning at least that is adopted by the Tribunal. So, in broad terms, the Tribunal accepts that in general a person who is merely a failed asylum seeker, without more, to draw attention to them is not at risk of facing a real chance of persecutory harm on return to Iran.
In that regard, this was put to the appellant by the Tribunal at the hearing, and one sees that firstly set out in the Tribunal’s decision itself at page 193 of the appeal book, paragraph 66. I will not read that, but the main point I would seek to highlight is that what was put as recorded in the Tribunal’s decision was that:
the available country information tends to show that ordinary failed asylum seekers do not suffer harm amounting to persecution on return: while they will be questioned by the authorities, the only ones who would suffer harm would be those with a profile such as political activists.
So, in that sense, that was the general tenor of the country information which the Tribunal had had regard to and that passage of the Tribunal’s decision essentially is harking back to what appears in the transcript of the Tribunal hearing at pages 174 to 175 of the appeal book.
There it is notable that this putting of the general tenor of the country information occurs – it starts around line 34 on page 174 of the appeal book – it occurs in the context of a reference to submissions that have been made by the appellant’s lawyers, there only being, I should say, one set of submissions that relevantly arise in this case, being the written submissions which were submitted by the lawyers approximately a week or so prior to the hearing. They were a bit over a week prior to the hearing.
Your Honours will see at the bottom of the page the Tribunal member, who was one of three but, I should add, was the presiding Tribunal member and the person who, at the end of the day, signed off on the actual decision record, had put:
the country information - and it’s I think recited in the primary – in the secretary’s decision - but if you wish we can refer you to country information - which suggests that just being a failed asylum seeker does not lead to persecution or being treated like a political dissentient if you go back to Iran and many people have left Iran and claimed asylum and been unsuccessful and returned back there, and the country information suggests –
It continues at line 10:
it’s only those ones who have some sort of political profile, who have been activists or been speaking out against the government or bringing – sorry – or drawing attention – publicly drawing attention to human rights abuses in Iran. It’s those sort of people who get problems if they’re sent – if they’ve failed- if they go back as failed asylum seekers. Now, the submissions I understand have identified and raised some arguments to suggest that it’s broader than that, and I appreciate that. But nevertheless, we have concerns that simply being a failed asylum seeker will give rise to a well-founded fear of being persecuted for a Convention reason or lead to – or involve a breach of Nauru’s international obligations.
In my submission, what these passages show is that, in terms of the consideration of country information, the Tribunal had had regard to the submissions, the submissions including the country information in them, and accepted that those submissions identified and raised some arguments to suggest that it might be broader than the bald statement as to no one who was a mere failed asylum seeker would face a real chance of persecution on return to Iran, but nonetheless, despite having seen that there were some items of material that supported that view, remained concerned that simply being a failed asylum seeker would not be enough.
That was what was, in my submission, put in that context. The Tribunal, as your Honours will see at lines 21 and following, indicated that the appellant’s lawyer had taken a note of all the things that we are worried about and invited them to respond. There was a period when the matter was adjourned, during which the appellant was given an opportunity to consider what he wanted to do in response. Then there was a response. My learned friend took the Court to it earlier.
It includes, at page 177 of the appeal book, submissions made by the appellant’s lawyer, in effect to say well, despite having been told what was said at page 175, the appellant would be relying nonetheless heavily on the written submissions and the statements that had been provided earlier.
Now, it is submitted that what those circumstances disclose is a consideration of the relevant submissions and the country information in them. It is notable also that the Tribunal has certainly referred to the submissions in its decision, and the passages in which it has done so are at paragraphs 69 and 100. I accept that at those points in the reasons there is no express mention of any particular piece of country information, but, for reasons that I will come to, it was not necessary for the Tribunal to do that in its reasons in this particular case. So the absence of any express reference to that effect does not signify that the Tribunal ignored or overlooked the relevant submissions here.
In addition, there is the matter that was raised by your Honour Chief Justice Kiefel that the Tribunal referred in its reasons to the statement which accompanied the submissions at the same time. That is set out at paragraph 34. There is also the fact that the Tribunal, as noted by the appellant in respect of ground 2, referred to country information which was referred to itself in the appellant’s submissions but not referred to in the Secretary’s decision in the recital of material at the start of the Secretary’s decision - that is the United States Department of State report, mentioned at footnote 7 on page 198 of the appeal book and which was dated 25 June 2015, a date shortly preceding the Secretary’s determination a couple of months later.
KIEFEL CJ: You are not suggesting that that necessarily - the Tribunal referred to that as part of appendix 2. It could have come across it in its own respect.
MR KNOWLES: It could have; I accept that. But it certainly could go either way. It certainly is unclear where else the Tribunal would have obtained that information, although I accept that it would have had access to material, independent of what was provided to it by the appellant. But it is certainly a piece of information that is referred to in the appellant’s submissions.
I accept in the appellant’s submissions, obviously the extracted quote is not the same as that which appears at paragraph 90 of the Tribunal’s decision, but it is submitted that that congruence is certainly not inconsistent with consideration by the Tribunal of the appellant’s written submissions and the country information in it and perhaps combined with the other matters that I have referred to discloses consideration of those submissions and the material referred to in them.
GAGELER J: Are you going to come back to the second sentence of paragraph 96?
MR KNOWLES: Yes, I am, your Honour. It is somewhat infelicitous and perhaps I will come back to it in a moment. But, in short, two things: when one looks at the other matters that I have taken the Court to there is a reference in the Secretary’s decision to “overall” and that, in my submission, indicates a reference to the general tenor of the country information before the Secretary. That general tenor is what is picked up by the Tribunal itself.
Despite what it says there it is quite a conclusive statement but, in my submission, if there is an internal inconsistency between those two matters it ought to be resolved in favour of the Tribunal’s agreement with and adoption of the Secretary’s reasoning. That is the first thing I would say about it.
The second thing I would say is that it goes to the question of a person who has lawfully departed. Now, the country information to which my learned friend has referred does not deal with that specific category of person. It might be said, I accept, that it deals with a broader category of person as to anybody whether departing lawfully or otherwise from Iran and what they might face if they are found to have made a failed asylum claim while abroad.
But, in my submission, in terms of resolving that tension, that inconsistency, that has to be the only way that one can read paragraph 96, that the words concerned with lawful departure, play a significant role and that the Tribunal is referring to country information directed to that specific category of person because really, when one has regard to the findings that precede it, there is no distinct reason for the Tribunal to include paragraph 96, given that paragraph 95, in adopting:
the reasoning and findings of the Secretary on this point –
adopts the findings that the Secretary made which included findings as to lawful departure on a valid passport and therefore there being no prospect of facing penalties that might apply to illegal departures.
So that is the reconciliation process that, in my submission, need occur for paragraph 96 to make some sense. It has to yield to the adoption of an agreement with the Secretary’s findings that appears at paragraph 95 and the Secretary has already made findings about that, excepting, given the language of “overall”, that it is not necessarily every single piece of information that goes to this fact but really the general tenor of the information that supports that fact.
GAGELER J: The general tenor of the information before the Secretary or the general tenor of the information before the Tribunal.
MR KNOWLES: Firstly, the general of the information before the Secretary.
GAGELER J: That is the easy bit.
MR KNOWLES: Sorry.
GAGELER J: That is the easy part of the answer.
MR KNOWLES: Yes, but might I say that even before the Secretary, some of the information went to mere failed asylum seeker status, potentially giving rise to a risk of harm on return to Iran. The Amnesty International Report that is referred to at the beginning of the Secretary’s decision – I keep saying beginning, it is about page 6 or 7 of the Secretary’s decision – that was one such report.
So, certainly before the Secretary and it is submitted, certainly before the Tribunal as well and the reason for that submission is that there was no distinct change in the overall extent of material, whether it be by reference to the numbers of reports that were put forward or whether it be by reference to their contemporaneousness. There was no distinct change in the overall tenor, the general tenor of the material that was before the Tribunal.
I know that my learned friend has been asked to prepare some sort of table in that regard and it might be something that the respondent would seek to do as well in reply but I will make some submissions orally today, if the Court pleases, on this topic as to what the information was, both before the Secretary and the Tribunal as well, but I am conscious of the fact if there is a need for me to put that in writing I can do that as well.
So, with one exception, they are really the instances in which the Tribunal has indicated its awareness with the submissions. The one exception that I have not yet taken the Court to and which is referred to in the submissions of the respondent is at page 128 of the appeal book and there at lines 10 to 13 – 10 to 12, I should say, your Honours – in the introductory part of the hearing it was said by the presiding member:
we have looked at all of the materials that you have provided throughout the course of this process since you arrived in Nauru and listened to the various interviews that you’ve participated in.
Again, I accept that it is a general statement, but it is certainly something that, if not correct, ought not to have been said. So, it is certainly supportive of the notion that the Tribunal was proceeding at the hearing on the basis that it had looked at the materials including the most recently received materials, being the submissions dated 29 November from about a week or so earlier.
It is said that the Tribunal failed to consider the submissions and, as I say, that is not accepted. The legal consequences that are said to flow from that purported failure on the part of the Tribunal said to, at least in the written submissions, invoke some sort of breach of section 34 of the Refugees Convention Act 2012, I understand that there might have been some adjustment in that regard in the oral submissions today and my understanding of the submissions that are put.
Certainly for the respondent’s part, a failure to comply with section 34 of itself would not give rise to some reviewable error. It is really going to be evidence, what is and is not in the statement of reasons, that might go to supporting an inference as to some other error that gives rise to jurisdictional error. That really accords with what has been said by this Court in the matter of Yusuf, which I will not take your Honours to, but which is in the authorities.
But, as I understand it, certainly what is put is that there was some denial of procedural fairness by virtue of a failure to consider the case or otherwise some failure to complete the statutory task which was conferred upon the Tribunal.
There is no dispute from the respondent’s point of view that what section 22 does generally require is that a person have an entitlement to put information and submissions before the Tribunal in support of the person’s case and that the person be entitled to have that material considered by the Tribunal.
In this case I have gone to the actual instances in which it is said, certainly in a general sense, there must have been consideration of the submissions made by the appellant to the Tribunal. If I can take the Court back to the submissions themselves, which start at page 70 of the appeal book, but moving forward to paragraph 38, which is at page 75, at the bottom of the page the claim that is put in respect of being a failed asylum seeker, as one can see when turning over to the top of the next page, had a number of components to it.
There was a reference to utilising fraudulent documents, and certainly down the page there is a reference to being a stateless Faili Kurd. Obviously, neither of those matters were accepted, but it is the case, when one goes further down the page, that in paragraph 42 there is a reference to appendix 2 and the material said in that appendix to support the claim.
Perhaps if I can just pause here and indicate that there are a number of matters in this case that are quite distinguishable from the facts in the Full Federal Court case of MZYTS. In the case of MZYTS, as, I think, has been acknowledged by my learned friend in going through the reasons, in particular at paragraph 41, the submissions that were said not to have been considered were presented to the Tribunal after the hearing had occurred. By way of distinction here, the submissions are shortly before the hearing and there are references to them at the hearing. It is quite a different scenario, in my submission, to that which arose in MZYTS.
What I would otherwise say in terms of points of principle raised in MZYTS – I just have a couple of matters I wish to raise at this juncture. The first is that at paragraph 37 the Court refers at the end of that paragraph to there being a requirement for the Tribunal to assess and determine what might happen to a person if they were compelled to return to their country of nationality.
Now, in my submission, in that case and also in the present case with respect to the members of the Full Court there, that is not strictly what is required by way of sections 65 and 36 of the Migration Act 1958; rather, there is a need to consider whether or not particular visa criteria are met.
So that calls for a state of satisfaction on the part of the decision-maker and if the decision-maker is not satisfied, then that does not require the decision-maker to actually determine what might happen to a person upon their return. It is just an assessment of whether or not they accept that what that person says might happen on the return is made out.
KIEFEL CJ: That might be a convenient time, Mr Knowles.
MR KNOWLES: If your Honours please.
KIEFEL CJ: The Court will adjourn until 2.15.
AT 12.45 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.15 PM:
KIEFEL CJ: Yes, Mr Knowles.
MR KNOWLES: Thank you, your Honours. Just before the break, I was making some observations about the Full Federal Court’s decision in the matter of MZYTS. There was just one last observation that I wish to make before moving on and it relates to what is said by the Full Court in paragraph 49 of the decision. Relying what is said in the decision of Yusuf, the Full Court observes that:
The Court is entitled to take the reasons of the Tribunal as setting out the findings of fact the Tribunal itself considered material to its decision, and as reciting the evidence and other material which the Tribunal itself considered relevant to the findings it made -
The first part of that sentence I do not in any way quibble with but the second part of the sentence, in my respectful submission, does not properly reflect the terms of section 430 of the Migration Act which was under consideration in Yusuf in the relevant paragraphs that are referred to in the citation there.
Nor does it reflect the terms of section 34(4) of the Refugees Convention Act 2012. That is because the evidence that is relevant and need be set out in the statement of reasons is the evidence or other material on which the findings of fact were based, that is, there needs to be some reference in the written statement to that evidence which supports the material, the findings on any material questions of fact.
So, it is not enough that they are just simply relevant to the question of fact. It has to be something that supported the finding of material fact. That was the subject of consideration by Justice McHugh in the matter of Durairajasingham. If I could, I would seek to take your Honours to that decision now. At paragraphs [64] to [65], Justice McHugh considered section 430 of the Migration Act, which is relevantly the same as section 34(4) of the Act under consideration here, and stated:
There is some authority in the Full Court of the Federal Court for the proposition that s 430(1) requires the reasons of the tribunal to refer to evidence contrary to findings of the tribunal. However, the contrary view was taken by differently constituted Full Courts –
and there is then a reference to a number of cases, in particular the case of Addo. Your Honours will see the quotation there where it is said:
Section 430(1) does not impose an obligation to do anything more than to refer to the evidence on which the findings of fact are based. Section 430 does not require a decision-maker to give reasons for rejecting evidence inconsistent with the findings made. Accordingly, there was no failure to comply with s 430(1) of the Act.
...
It is not necessary, in order to comply with s 430(1), for the tribunal to give reasons for rejecting, or attaching no weight to, evidence or other material which would tend to undermine any finding which it made.
Then Justice McHugh says, at paragraph [65]:
In my opinion, this passage correctly sets out the effect of s 430(1)(c) and (d). However, the obligation to set out “the reasons for the decision” –
in paragraph (b) –
will often require the tribunal to state whether it has rejected or failed to accept evidence going to a material issue in the proceedings. Whenever rejection of evidence is one of the reasons for the decision, the tribunal must set that out as one of its reasons. But that said, it is not necessary for the tribunal to give a line-by-line refutation of the evidence for the claimant either generally or in those respects where there is evidence that is contrary to findings of material fact made by the tribunal.
Now, that is apposite, in my submission, in respect of the first ground because, firstly, much of the country information in the appellant’s submission was not, relevantly, evidence based on which material findings of fact were made by the Tribunal. It might have gone against it, but it was not something that attracted the operation of section 34(4)(d) in terms of the statement of reasons. There was no obligation to actually put in the statement of reasons a reference to the evidence which went against their material findings of fact. And so, having regard to what is said in cases like Yusuf it cannot be inferred that the absence of a mention of that evidence means that it was not taken into account.
But, secondly, one needs to consider whether or not the relevant evidence and rejection of it was a necessary reason for the Tribunal’s decision. Now, in this regard your Honours will have seen that the essential import of the claims made by the appellant in respect of the first new argument is that there were these six pieces of country information mentioned in the submissions which were not before the Secretary and which contradicted the analysis and conclusion of the Secretary with which, obviously, the Tribunal had expressed agreement. It appears, on my assessment of the argument, that there is a need for both of those matters to be met as the appellant, at least, puts it but I will deal with both of them, in any event.
KIEFEL CJ: There is the further question, is there not, about whether or not in any event it is open to draw an inference that the Tribunal did in fact have regard to appendix 2?
MR KNOWLES: Absolutely right, in the sense of what I have already submitted to your Honours in respect of what was said at the Tribunal hearing and in terms of other contextual matters as well.
KIEFEL CJ: Yes, quite. Yes, you did take us to that before.
MR KNOWLES: So these are really additional matters when one - - -
KIEFEL CJ: This is if it is confined to the Secretary’s - - -
MR KNOWLES: This is if one looks at the Tribunal’s reasons and is trying to, from the reasons and the absence of any specific mention in the Tribunal’s reasons, glean something as to whether or not the submissions were or were not taken into account, notwithstanding the fact that there were references in the Tribunal’s reasons to the submissions, admittedly in a general sense, at other parts of the reasons.
In terms of this particular argument, I note that there is no evidence as to what was contained in the entirety of the relevant reports to which the appellant refers in paragraph 31 of the appellant’s submissions in-chief. That might have been significant in terms of assessing what these particular extracts that are set out in short compass in that paragraph might be understood to have meant in a broader context of the report. It might be that these particular passages were qualified in some way by some general conclusion towards the end of the report. It is not known in the sense that the entirety of those reports is not before this Court. That is one of the points that are raised in respect of the new grounds and the evidence that might have been put below had it been raised at that juncture.
In terms of the two points, as I say, there is the issue of whether or not the country information mentioned in the submissions was not before the Secretary; and, secondly, whether or not it contradicted the analysis and conclusion of the Secretary. As I have submitted earlier, if one construes the Secretary’s reasons in the way that I have put, that the word “overall” goes to the general tenor of the country information and takes into account the fact that there are at least some items of country information that might go against the notion that mere failed asylum seeker status is not enough, if one accepts that analysis then none of the information that was put contradicted the analysis and conclusion of the Secretary in the sense that it might have suggested that there were some other isolated reports that went to that issue and contradicted the Secretary’s ultimate conclusion, but it did not suggest that, overall, the Secretary’s conclusion was somehow not open.
Now, if I can first indicate that - and I do not know whether this is in dispute - but on the respondent’s submission, in any event, there are only two items of information that were not before the Secretary. The information that is referred to in subparagraphs 31a, b, d and e was all information that was referred to in the material before the Secretary and, in my submission, can be inferred had been considered by the Tribunal, given the Tribunal’s reference in the hearing to the country information that it had considered, the reference to the country information that was contained in the Secretary’s decision.
So, and I do not know whether your Honours would be assisted by this but the information referred to in subparagraphs 31a and d is referrable to an Amnesty International Report from 2012 and that report is referred to in the decision of the Secretary at page 60 of the appeal book. The information in subparagraph b of paragraph 31 is a report prepared by Iran Human Rights in 2011 and that report - on the analysis of the respondent, I should say, as is put in its submissions and has not been disputed - is cited in a Canadian Report in 2015 which is referred to at page 61 of the appeal book and that is the Immigration Refugee Board of Canada.
Lastly, the report that is cited and referred to in subparagraph 31e of the appellant’s submissions; it is a Swiss report. There is no contention about this either, as I understand it. The exact extract that is referred to is actually set out in the ACCORD Report and likewise with the preceding example relating to the Iran Human Rights report, cited in the Canadian Report, the exact extract is set out and that ACCORD report is set out at page 61 of the appeal book.
So, there were only two pieces of country information which were not before the Secretary and those two pieces of information did not contradict the Secretary’s analysis in this regard. They did not, as is put by the appellant in the appellant’s submissions, cast a different light on the position. So, on that basis, there was no reason to infer that the absence of mention of those pieces of information in the Tribunal’s reasons indicated a failure to consider or an overlooking or ignoring of that particular country information.
In that regard, the first item at subparagraph c of paragraph 31, that is, as my learned friend indicated, set out in the submissions at page 104 of the appeal book and it is the United States Department of State report which is mentioned at about line 17 on the page there and, as can be seen, that is a report about general circumstances that might confront detainees and prisoners in Iran. It does not go to the question of what might happen to a failed asylum seeker on return to Iran. It goes to what might – if one accepts that a person might be detained, then it goes to what the consequences might be, but that is a separate issue to what the treatment of failed asylum seekers is per se.
The second item of country information, that which is referred to in subparagraph f of paragraph 31 of the appellant’s submissions, that did concern the position of failed asylum seekers and it is the Article 19 report that is referred to at pages 100 to 101 of the appeal book and your Honours will see there that that Article 19 report insofar as it is set out in the submissions goes to the treatment of people who do have some political profile who are failed asylum seekers who then return to Iran.
The first paragraph concerns the plight of a reformist political activist, then moving through one can see towards the bottom of the page it is referencing perceived political dissenters and then over to the page following, at the top of the page at the bottom of the quote, it is concerned with the position of people:
who did not commit any crimes during the 2009 events.”
So, it is confined to a consideration of people who might have been involved in 2009 events but had not committed crimes at that time.
Then one will see that the remainder of the Article 19 material concerns political exiles, the fate of journalists and activists and so on. So that information was not something that cut against the grain of the analysis that had been undertaken by the Secretary with which the Tribunal, on consideration of the material, agreed.
So it goes to the point as to why one might not see any reference to that kind of information in the Tribunal’s reasons. It did not need to because it was not inconsistent with the reasoning that had been employed by the Secretary in the first place, even if it was information that had come in after the Secretary’s decision had been made.
If I can now turn to the second proposed ground of appeal, which relates to the appellant’s claim to fear harm in Iran on the basis of his status as a Faili Kurd. As your Honours will have heard, the essential argument goes to whether or not there was an obligation on the Tribunal to put certain information to the appellant.
Now, no doubt section 22 of the Act, given its general reference to the rules of natural justice, would ordinarily require the Tribunal to put adverse information that is credible, relevant and significant to an applicant for comment and so much was found by this Court in the recent decision of BRF038, but there is some qualification to that in the sense that neither section 22 nor procedural fairness more generally would require the Tribunal to reveal to an applicant that the Tribunal intended to rely on information that the applicant already is or should be aware of.
In that regard, again I refer to another judgment of Justice McHugh in the case of Cassim, in particular paragraph [22]. In that case, your Honours will see that what had occurred was the applicant had put a piece of country information before the Refugee Review Tribunal and the Tribunal had found that that country information was inconsistent with part of the applicant’s specific evidence about his claims.
The applicant claimed that he should have been given an opportunity to comment on the contents of the country information and your Honour will see at paragraph [21], Justice McHugh, about halfway through that paragraph, stated:
This was a surprising claim given that the cable had been brought to the attention of the tribunal by the applicant’s solicitor. After the applicant had given evidence, the solicitor had sent to the tribunal an extract from an earlier decision of the tribunal. That extract referred to this cable. In this court, the applicant contended that the tribunal could not use the cable without giving him an opportunity to comment on it.
So, a bit like the situation here, there was one piece of information, in this case a Tribunal decision, that contained an extract referring to the cable and then the cable was more generally used in terms of its inconsistency with the applicant’s evidence. And your Honours will see at paragraph [22] Justice McHugh dealt with the assertion by the applicant that he should have had an opportunity to comment on the cable and stated:
[22] There is no substance in this assertion. The rules of natural justice do not require the tribunal to reveal to an applicant that it intends to act on information that is in the public domain or on information of which the applicant is or should be aware.
And the rest of that paragraph is, in my submission, also apposite but I do not intend to read it now.
GAGELER J: The reference to the “public domain” may be a bit of an overstatement.
MR KNOWLES: Possibly so, your Honour, but it does not arise in this case, in my submission. I do not rely on that. What I rely on is on information of which the applicant is or should be aware. That is what I take from Justice McHugh’s reasons and put as relevant to the present case.
GAGELER J: What does “should be aware” mean?
MR KNOWLES: Sorry, your Honour?
GAGELER J: What does “should be aware” mean?
MR KNOWLES: Without wishing to be too undefined, it will depend on the case but in this case the applicant should be aware of material which has been put - can be taken to be aware of material that is put before a decision-maker by his legal representatives, even where the representatives have only taken out of that particular piece of material a particular extract, but to get to that point and get that extract it should be inferred that they had to read the material and consider it in its entirety. And, of course, in a submission, that does not mean that they are going to refer to the material that might be - - -
KIEFEL CJ: Unless someone else extracted it for them. That is the problem with this kind of surmise.
MR KNOWLES: I accept that that is a possibility but, in my submission, the more likely inference on all the materials is that it has been prepared by the solicitors for the purposes of putting a case on behalf of the applicant. The document, in my submission, does not suggest otherwise, on its face, at least. That possibility may arise in some cases, but it is not something that, on the balance of probabilities, in my submission, could be said to arise here.
So that answer to your Honour Justice Gageler’s point really goes to the first issue that is raised – sorry, the second piece of information that is the subject of this particular ground, and I will come to that in a moment. But, obviously, that was information which was contained in the applicant’s submissions as prepared by the applicant’s lawyers.
If I can go to the first argument, and that relates to the first piece of country information set out at paragraph 90 on page 198 of the appeal book, it is important, in my submission, in looking at that country information, to have regard to what surrounds it. Obviously, it is dealing with the appellant’s ethnicity, that is, his Kurdish or Faili Kurdish ethnicity. As your Honours will see, paragraph 90, first off, deals with the claims of past harm. The Tribunal was not satisfied that that was serious enough to warrant the term “persecution”. Then the Tribunal looks to the future and says:
there is nothing before it which indicates that there is a real possibility that harm amounting to persecution -
and that is important:
will befall the applicant simply because of his ethnicity.
Then what the Tribunal does in the pieces of country information that are referred is to look at other matters and what might lead to, in the Tribunal’s assessment, something that goes beyond a person’s ethnicity that would lead to harm greater than mere discrimination not amounting to persecution. Firstly, the Tribunal looks at the fact that if a person – the country information that it goes to – if a person:
accepts and lives by the Islamic regime, he or she will be left alone.
It is important, in my submission, to read this in the context of Iran as a theocratic state. It is not country information that is going to a person’s religious views, that first piece of country information. It is going to living within the constraints that might exist within that society. It is acknowledged in that country information that there is discrimination in Iran against Kurds. Kurds might, for instance, find it hard to get a job, and might be subject to harsher treatment from the authorities.
That is something that, as your Honours will see when one comes to paragraph 91, is accepted by the Tribunal. On the basis of that country information, the Tribunal accepts that Kurds may face discrimination. Then the Tribunal, going back to what appears in paragraph 90, looks at the other piece of country information - that deals with people of ethnic minorities - and in particular says:
the Gozinesh (selection) law prohibits non-Shia ethnic minorities from fully participating in civic life. The law and its associated provisions make full access to employment, education, and other areas conditional on devotion to the Islamic republic and the tenets of Shia Islam.
The Tribunal then goes on, as I have already indicated, in paragraph 91 to accept that there will be discrimination against Kurds in Iran, and as such the appellant may face that. Obviously, the Tribunal has earlier found that that discrimination will not amount to persecution. The Tribunal then proceeds to set out reasons why it does not consider that discrimination will amount to persecution.
The first one is that the applicant is part of the majority religion; second, he has stated that he is not involved with any political or other organisation; and the third is that he has done his state duty by doing his military service. So those matters, taken in combination, were seen by the Tribunal to support the conclusion that appears at the end of paragraph 91, and that is:
There is nothing to show that he does not “accept and live by the Islamic regime” –
That is harking back to the first piece of country information –
and that he will be marked out as the object of adverse attention from the authorities.
So, really in some respects, while this goes to religion, it also goes to questions of politics in terms of the country information going to a person accepting and living by the Islamic regime.
If I can now turn to each of the pieces of country information, as my learned friend indicated, the first of those pieces of country information was actually cited in the Secretary’s decision at page 64, and your Honours will recall that it was used in respect of the applicant not having some profile of political opposition or the like. In particular, it was used by the Secretary to come to the view that country information – and this is at line 30 on page 64:
Country information does not support a finding that a Kurdish person would be imputed with an adverse political opinion in Iran purely on the basis of his or her ethnicity, without further political or cultural activism on part of the individual.
Again, that really in some ways goes to what was ultimately found by the Tribunal. It could not have been a surprise then that the Tribunal, in my submission, went on to say that:
There is nothing to [the appellant] does not “accept and live by the Islamic regime” –
or that –
he will be marked out as the object of adverse attention from the authorities.
So, firstly, the information – the first piece of information was information of which the applicant was plainly aware but, secondly, to the extent that the Tribunal used that information, it was not used in a way that was not obviously open to it and that required the Tribunal to put the way that it intended to deal with it to the appellant in advance of making its decision.
The second piece of information - this was the information that was set out in the United States Department of State report from 25 June 2015. As I have already indicated in response to your Honour Justice Gageler’s question, that information was cited in the submission that was made by the appellant’s lawyers. Yes, it is true that the submissions themselves did not refer to this particular extract. They referred to a different extract. But it cannot, in my submission, be said that the appellant, through his lawyers, was not aware of it or could not reasonably be expected to be aware of it in all the circumstances.
In any event, the question of the appellant’s religion was well settled by the time the Tribunal came to make its decision. The Tribunal had answered at the transfer of interview, when asked about his religion, that he was Shia. That is recorded at page 9 of the appeal book. It is not - contrary, with respect, to my learned friend - a tick-a-box form.
It is a form that records what the appellant answered to questions that were asked of him at the transfer interview and then was verified by the appellant, with the assistance of an interpreter, at the end of the interview, as is indicated in my submission when one has regard to page 19 of the appeal book.
Similarly, at page 30 of the appeal book – and this is within the application made for a refugee status determination, at the bottom of the page in answer to question 25 about religion, the appellant has answered:
Muslim – SHIA -
At page 40, at the end of the form, the appellant has signed it and under a declaration about the contents of the form. Then these matters were referred to in the Secretary’s decision at page 56 as evidence before it given by the appellant himself in the second dot point under the first heading relating to the interview and in the second dot point – I should not say second - under the first paragraph and in the second dot point under the second paragraph those matters are recorded as the appellant’s evidence at that time.
That may explain your Honour Chief Justice Kiefel’s query about why right at the outset at paragraph 7 of the Tribunal’s decision at page 183 of the appeal book it simply said, without any qualification, that the appellant is a Shia Muslim, because that is the way that the matter had proceeded before both the Secretary and the Tribunal.
But further, and as is indicated in the respondent’s submissions, the notion that the appellant would be identified as a Shia Muslim had already been addressed by the appellant himself in his own written submissions. So, it is one thing as to what a person themselves might say about their religion but it is another thing as to how the person is perceived by others and in this case the appellant had put country information about Faili Kurds - this is at page 82 of the appeal book, and without qualification states that:
Faili Kurds are Shi’a Muslim Kurds –
at about line 11, and that tends, in my submission, also to indicate the way in which the appellant would be perceived if his ethnicity was understood to be that of a Faili Kurd, which according to the Tribunal, was certainly what the appellant had claimed to be the case, given that he claimed that he had had encounters with the Ba’athist for wearing Kurdish clothing and the like.
Lastly, on this point about religion, my learned friend took the Court to the appellant’s initial hearing decision to give an affirmation rather than an oath. Now, it is true that the appellant through an interpreter simply said, non-religion, but then, as your Honours will see at the bottom of page 127 of the appeal book, went on to say:
Yes. I’m telling that all my – it’s my life story and all true and I’m ready to – you know, to have an oath, whatever, religion, not religious or whatever.
Now, that might show perhaps a lack of formal desire to give the oath for whatever reason, but the significance of it really goes nowhere, in my submission, in terms of how the appellant would be perceived firstly; and secondly, the other material that was before the Tribunal, from which it could well have understood, irrespective of what was said at that juncture, that otherwise the appellant himself identified as a Shia Muslim.
I note finally that in this regard, being a Shia Muslim, only went to the Tribunal’s finding that the applicant is part of the majority religion. It was not the case that the Tribunal made a finding that he was an adherent to
Shia Islam. It was not the case that, in any general sense, the Tribunal found that he would be subject to some shield, as my learned friend put it. Rather, it simply meant that, although he was a Kurd and although he may face discrimination on that account, he would not face discrimination as a person of non-Shia background. As such, he would not face discrimination in respect of the Gozinesh laws which are directed specifically towards to non-Shia ethnic minorities.
So, again, this was information, firstly, that the appellant, through his lawyers, should have been aware of and, secondly, in terms of any use of the information it was obviously open, having regard to the terms of the information and the context, given the appellant’s claims in which the information was put.
Save for indicating that the respondent maintains the position in terms of the leave to amend the notice of appeal on the grounds that are put in the written submissions, I have nothing further to add in that regard.
KIEFEL CJ: Yes, thank you, Mr Knowles. Anything in reply, Ms Harris?
MS HARRIS: Only one point, your Honour. Before lunch, my learned friend sought to make a point by reference to the transcript of the Tribunal hearing for the purpose of demonstrating that the Tribunal had, in fact, performed the task required of it. Now, we have referred in our submissions at paragraph 7 and footnote 14 to the cases which demonstrate the peril in seeking to use a transcript in substitution for reasons and that is a fortiori the case against the background of the statutory requirement in section 34 - - -
KIEFEL CJ: I might be mistaken, but I thought Mr Knowles was saying that this was the source of the particular – one can see from the language that this was the source of the particular reference in the Tribunal. That is all he was saying, that this actually took place.
MS HARRIS: We had understood him to say that you can see from the transcript that the country information put before it was taken into account. Now, the only point we wish to make about – and this is the transcript at appeal book 174 to 175, in the passage starting right at the bottom of the page – what is put by Mr Fisher is that:
the country information – and it’s I think recited in the primary – in the secretary’s decision - but if you wish we can refer you to country information - which suggests that just being a failed asylum seeker does not lead to persecution –
and so on. So the passage relied on in fact makes our point that the Tribunal was referencing the country information before the primary decision-maker and not the country information which had been put before it. If your Honours please. Your Honour, might I inquire when your Honour would care for us to produce that table?
KIEFEL CJ: Well, it would be convenient if it could be produced, say, within three working days - - -
MS HARRIS: I cannot see a difficulty, if your Honour pleases.
KIEFEL CJ: - - - and a response within the same period.
MR KNOWLES: If your Honour pleases.
KIEFEL CJ: Thank you. I think it is clear enough what we need from the parties.
MS HARRIS: Indeed. We will have regard to the transcript also, your Honour.
KIEFEL CJ: Yes, thank you. The Court reserves its decision in this matter and adjourns until 9.45 am tomorrow for pronouncement of orders, and otherwise to 10.00 am.
AT 2.58 PM THE MATTER WAS ADJOURNED
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/cases/cth/HCATrans/2018/18.html