CQY17 v Minister for Immigration

[2019] FCCA 4

FEDERAL CIRCUIT COURT OF AUSTRALIA

CQY17 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 4

Catchwords:
MIGRATION – Review of International Treaties Obligation Assessment – applicant found not to be a person to whom Australia owes protection obligations – numerous errors alleged – sur place claim arising out of publication of information about the applicant in criminal proceedings – personal information about the applicant also provided to the Iranian authorities by the Minister’s Department – failure to consider the cumulative impact of the disclosure and the criminal proceedings.

Cases cited:

Attorney-General (NSW) v Quin [1990] HCA 21; 170 CLR 1

Appellant S395/2002 v Minister for Immigration [2003] HCA 71; 216 CLR 473

Minister for Immigration v Li [2013] HCA 18; (2013) 249 CLR 332

R v Ali [and others] [2013] NSWSC 871

Applicant: CQY17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMA PROTECTION OFFICER, POSITION NO. 60019083

File Number: SYG 2093 of 2017

Judgment of: Judge Driver

Hearing date: 12 December 2018

Delivered at: Sydney

Delivered on: 8 February 2019

REPRESENTATION

Solicitors for the Applicant: Mr D Taylor of Sydney West Legal and Migration

Counsel for the Respondents: Mr G Johnson

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The Court declares that the International Treaties Obligation Assessment made on 1 May 2015 was not made according to law.

2. The Minister is restrained, by himself or by his Department, officers, delegates or agents from relying on the recommendation and findings of the International Treaties Obligation Assessment in respect of the applicant.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2093 of 2017

CQY17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMA PROTECTION OFFICER, POSITION NO. 60019083

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. The applicant seeks judicial review of an International Treaties Obligation Assessment (ITOA) made on 1 May 2015. The show cause application was filed on 3 July 2017. It is not entirely clear whether s.477 of the Migration Act 1958 (Cth) (Migration Act) applies to ITOAs but, to the extent that an extension of time was required, I granted it at the trial on 12 December 2018. That course was not opposed by the Minister, having regard to the issues of substance arising on judicial review and mental health issues referred to by the applicant in relation to an extension of time.

2. The following statement of background facts is derived from the submissions of the parties.

3. The applicant is a citizen of Iran who arrived at Christmas Island on 17 June 2010 as an offshore entry person, and was transferred to Perth on 8 July 2010. On 13 October 2010 he requested a Refugee Status Assessment (RSA).[1]  The applicant claimed to fear harm in Iran because he was a Faili Kurd and a Shia Muslim. He claimed to have been expelled from Iraq in 1980 by the Baath Party. He also claimed to fear harm as an asylum seeker, because he was stateless, and because he had been mistreated while working was a street vendor.

   [1] Court Book (CB) 41

4. On 19 January 2011 a delegate of the Minister was not satisfied the applicant met the definition of refugee.[2] On 16 February 2011 the applicant requested an Independent Merits Review (IMR).[3]

   [2] CB 74

   [3] CB 96

5. On 10 May 2011 the applicant requested that he be removed to Iran, but then withdrew the request.[4]

   [4] CB 100-110

6. On 9 September 2011 the Minister’s Department wrote to the applicant confirming that it had checked his RSA outcome, and that the outcome should not be changed.[5]

   [5] CB 112

7. On 28 February 2012 an IMR reviewer found the applicant did not meet the criteria for a protection visa.[6]

   [6] CB 126

8. On 2 May 2012 an officer of the Minister’s Department conducted a reconsideration of the applicant’s protection claims following amendments to the Migration Act introducing the complementary protection regime.[7]  The officer found there had been no new claims or changes to the applicant’s circumstances and was not satisfied that the applicant’s case should be referred to the Minister for consideration. It was earlier determined that it was not appropriate to grant a criminal justice visa to the applicant.[8]

   [7] CB 126

   [8] CB 157

9. On 16 August 2012 the Minister’s Department wrote to the applicant advising him that his claims had been considered against the complementary protection criteria but that he was found not to be owed any protection obligations.[9]  The applicant was requested to make plans to depart Australia voluntarily.

   [9] CB 159

10. On 24 September 2014 the Minister’s Department wrote to the applicant concerning legal developments and changes to Departmental policy regarding the assessment of protection claims.  The Minister’s Department advised that it would now undertake a re-assessment of the applicant’s protection claims as part of a new ITOA. The applicant was invited to submit further information.[10]  The applicant was advised that he was affected by the data breach relating to persons in immigration detention as at 31 January 2014. He was requested to include any concerns he had in relation to the impact of the data breach on him as part of any submissions in the ITOA process.

    [10] CB 163

11. On 23 November 2014 and 26 March 2015 the applicant, with the assistance of a migration agent, provided written submissions to the Minister’s Department in respect of the ITOA.[11]  On 18 February 2015 the applicant was invited to attend an interview in relation to the ITOA.[12]

    [11] CB 178 and CB 196

    [12] CB 187

12. On 1 May 2015 the ITOA was finalised.[13]  The Assessor was not satisfied that non-refoulement obligations were engaged in the applicant’s case.

    [13] CB 203

13. Prior to the ITOA assessment the applicant was convicted in the NSW Supreme Court for offences relating to riot and damage to property whilst the applicant was in immigration detention at the Villawood Immigration Detention Centre (Villawood). The applicant was sentenced to three years imprisonment, with a non-parole period of one year and 10 months. The sentencing judgment of the NSW Supreme Court (Supreme Court judgment) was published online. The applicant was apparently released on parole and returned to immigration detention on 9 June 2014. An account of the riot including the applicant’s involvement was reported in the Sydney Morning Herald newspaper.[14]  The applicant was referred to by a name that was an alias.

    [14] CB 217

14. The applicant’s participation in the riot at Villawood, the reporting of the incident by the Sydney Morning Herald and the data breach were advanced by the applicant during the ITOA process as sur place claims.[15]

    [15] CB 179

ITOA

1. The Assessor noted by reference to the submissions advanced on behalf of the applicant that there were two issues for consideration.  First, whether the applicant would continue to be detained and beaten in Iran because of his work as a street vendor and secondly, whether the applicant would be at risk due to the release of confidential information.[16]  The Assessor observed that the applicant’s claims regarding his circumstances in Iran “differ[ed] markedly” from the claims he presented at his entry interview.[17]  In particular, the applicant now admitted to being an Iranian citizen, rather than a stateless Faili Kurd.

   [16] CB 210.3; see also the representative’s submission at CB 178

   [17] CB 216.3

2. The Assessor also set out in his reasons that he explained to the applicant at the interview that in fact he was not the subject of concern in relation to the data breach as he was not in immigration detention at the time of the data breach, but criminal detention.[18]

   [18] CB 215.1

3. The Assessor made the following findings:

   a)the applicant was not prevented or restricted by the Iranian authorities from earning a livelihood on the basis of his Faili Kurd ethnicity or due to his place of birth;[19]

   b)there was not a real chance that the applicant would be persecuted by the Iranian authorities for his consumption of alcohol in 2011;[20] and

   c)there was no reason which would elevate the applicant’s profile over and above being a failed asylum seeker, such as being involved in the riot at Villawood.[21]

   [19] CB 217.3

   [20] CB 221.5

   [21] CB 222.3

4. The Assessor was not satisfied the applicant was a person in respect of whom Australia had non-refoulement obligations.

The current proceedings

1. As noted above, these proceedings began with the show cause application filed on 3 July 2017.  The application has been amended several times since.  At the trial, I granted leave for the applicant to file and rely upon a second further amended application annexed to the affidavit of Daniel Robert Taylor made on 3 December 2018.  The grounds in that application are:

   The IMA Protection Officer (hereafter ‘The Officer’) in conducting the ITOA made jurisdictional errors, and/or errors of law;

   1.Failing to consider cumulatively the sur place claims as a set of inter-related and inseverable claims, consisting;

   -Raising claims against Iran that were widely published in the Supreme Court decision

   -Drinking alcohol and being intoxicated that was widely published in the Supreme Court decision

   Grounds 5-9A – Claim to be at risk for reason of breach of Shar’ia law – in relation to the Villawood riot

   5. The Officer erred through Denying natural justice by failing to consider the claim that the reason why the applicant would be punished for the extra-territorial offence of being intoxicated was because it was a breach of Shari’a law.

   Particulars:

   i. the IMO case officer failed to clearly put any distinct concern to the Applicant that he could not find any reference to punishment within Iran of extra-territorial Shar'ia offences, having only put to the Applicant the concern that there would not be a reason to punish the Applicant for the offence being committed extra-territorially.

   ii. If the IMO case officer had clearly put to the Applicant a concern about the jurisdiction for extra-territorial punishment, rather than the question of why that jurisdiction would be exercised, then the Applicant would have been able to respond to that concern with evidence, however this concern was not clearly put.

   iii. The following exchange took place during the ITOA interview:

   196.  CASE OFFICER: [00:41:55] Ok so your submission also mentions the reference to you drinking alcohol during the riots in Villawood and that you might be at risk for that.

   197.  INTERPRETER: [00:42:31] Yes that also is on top of that that apparently that [night] I was drunk. I don't know, but that particular offence back in Iran has 80 lashes.

   198.  CASE OFFICER: How many?

   199.  INTERPRETER: 80. Eight Zero

   200.  CASE OFFICER: Ok, so some of the information that I have read says that you could be fined or lashed but as far as I can read it, that's if you are caught doing it in Iran, not in another country. Why would they impose that on you?

   201. INTERPRETER: That's Sharia Law that if a Muslim that drinks anywhere then he deserves the punishment of lashes, he entitled [indistinct].

   iv.The Applicant's representative did not perceive that any concern had been raised about the availability of an extra territorial offence within the Islamic Code.

   v.The Applicant's representative in addressing the identity issue nonetheless reiterated previous submissions, and reinforced the claim of the Applicant, that the reason why he would be punished for intoxication in Villawood Australia, was that "drinking alcohol - an act considered to be against Islam" [CB.183]

   vi.Clearly in context the Applicant and the Applicant's representative clearly raised, and were not on notice that the Respondent had any concern about, the availability to the Iranian Authorities of the Islamic Code for punishment of extra-territorial Shar'ia offences.

   6A. The Officer erred in finding that the Applicant did not face a real risk of significant harm in relation to his breach of Shar'ia law.

   Particulars:

   i.      The Officer found [CB221-222]:

   "I accept that the claimant consumed alcohol during the Villawood riot in 2011 and that this behaviour was recorded in his case record on the website.

   However, I am not satisfied that if his consumption of alcohol in Australia did come to the notice of the Iranian authorities, there is a real chance that he will be prosecuted for this 'reason’ as he claims.

   Country information does refer to the new penal code maintaining the punishment of 80 lashes for alcohol consumption which was carried over from the now defunct Article 179.9  This applies for a first offence, while there is theoretically, at least, a punishment of death for recidivists. However, no mention is made of the code applying to persons who commit such offences outside of Iranian jurisdictions.  I also note that four years have passed since the riot took place. I consider that there is a remote prospect of the claimant coming to the attention of the Iranian authorities for this reason if he returns to Iran.

   … [CB222] I do not accept that the Iranian authorities will identify the claimant as being involved in the Villawood riot or that they will acquire details of his protection claims."

   ii. The Officer did not raise with the applicant or representative any concern about there being a lack of territorial jurisdiction for punishment of Shar’ia offences.

   iii. In any case the Officer in the decision did not intellectually engage with the claim that the offence was punishable wherever it was committed because of being a breach of Shar’ia law or perceived as an offence against Islam.

   iv.     The Officer failed to consider that logically the information about the Applicant's breach of Shar'ia would be conjoined with the publication of the Applicant's claims for protection against Iran in the Supreme Court judgement published on and other websites, thus giving rise to a compounded risk.

   v.The certainty with which the Officer finds that the Iranian Authorities do not know about the Applicant's involvement in the Villawood riots and the details of his claims for protection against Iran, gives rise to a perception that the Officer has not seriously engaged with the question of what would happen to the Applicant if his breach of Shar'ia law is known to the Iranian Authorities or becomes known to them.

   vi. In any case the IMA Protection Officer erred through failing to consider that the Iranian Authorities had sufficient biographical data from the travel document request from [the applicant], being a person in Immigration detention, with the biographical details of … published in the Supreme Court decision along with details of the Applicant's claims for protection against Iran.

   vii.In the second sentence of the above passage the Officer indicates that consideration was only given to whether the Applicant would be prosecuted, rather than whether he would be significantly harmed through extra-judicial punishments, for example during interrogation concerning the Shar'ia offence.

   viii.In the final sentence concerning whether the Applicant would be punished for breach of Shar'ia law the Officer refers only to a remote chance of his actions coming to the attention of the Iranian Authorities.

   ix.The Officer did consider or exclude that the Applicant would be punished (including extra-judicially) through other mechanisms than by prosecution.

   x. Such consideration of whether the applicant would suffer significant harm is a mandatory requirement of s.36(2)(aa), which is not discharged simply by consideration of whether the Applicant would be formally prosecuted.

   7. The IMA Protection officer erred through Failure to consider evidence that the Islamic Criminal Code of Iran allows for punishment of offences committed outside of Iran.

   Particulars

   i. The Officer failed to have regard to country information referred to in the IMR decision of 28 February 2012, at CBp142, penultimate paragraph:

   On 17 February 2011, an article written by a former Supreme Court judge appeared in Iran newspaper, a daily paper published by the Iranian government. Referring to existing laws that enable Iran’s judiciary to bring charges against Iranians for alleged violations of Iranian law committed while outside Iran, the article stated that failed asylum-seekers could be prosecuted for making up account of alleged persecution. …

   8. The Officer erred through Failure to consider evidence being the Islamic criminal code of Iran which does not allow for leniency for Shari’a offences including Hadd offences such as drinking alcohol.

   9A. The IMA Protection Officer erred through failure to intellectually engage with the submission of the Applicant’s representative that becoming intoxicated in Villawood Australia would be punished by the Iranian Authorities because it would be a breach of the Islamic Code, in conjunction with the fact that the Applicant’s claims against Iran had been published: [CB179, 180, 181, 183, 197]:

   i.      The Applicant’s submissions 24/11/2014 stated:

   [179] Sur place claim.

   We submit that the release of Mr [Applicant’s] asylum claims and activities in Australia through:

   …

   disclosure of information about him, his protection claim, and his participation in the Villawood protests in a publicly available court decisions – see R v Fei [2013] NSWSC 8712 [sic]. In particular the reference to him drinking alcohol and being intoxicated, which, it may accepted, are considered by the Iranian authorities to be in breach of the Islamic code. …

   [180] The Department’s own Country Guidance Note on Iran dated June [2018] identifies that: On 17 February 2011, in an article published by Iran Newspaper, a retired Iranian Supreme Court judge suggested that returned failed asylum seekers could be prosecuted for creating accounts of alleged persecution in Iran:

   …[183]

   … What follows from the above is that Iranian asylum seekers are viewed by the Iranian authorities as traitors and as having (or at least having expressed) anti-regime views and as such would be vulnerable to punishment upon return.  Mr [Applicant] is particularly vulnerable because his request for protection and details of his involvement in the Villawood protests (including his intoxicated state – an act considered to be against Islam) have been widely reported.

   9B. The IMA Protection Officer erred through failing to put to the Applicant a concern that the passage of time would affect whether the Applicant was punished, but nonetheless taking this factor into account in making the determination that the Applicant would not be punished for the breach of Shari’ia law. [at CB221]

   Particulars:

   The Case Officer found:

   “I also note that four years have passed since the riot took place.”

   Grounds 10A-26 concerning jurisdictional error in relation to the capacity of the Iranian Authorities to identify [the applicant] as the same person as ….

   10A. The Officer through failure to consider evidence, failure to consider claims, and illogicality, in failing to find that the Iranian Authorities would identify the Applicant as the same person as … whose biographical details and claims against Iran were published in the Supreme Court [judgment].

   Particulars:

   i.      The Officer found:

   [CB215] It was put to him that even if this was the case, he is identified as … in the Sydney Morning Herald article and given this he was again asked how the Iranian authorities would know that the rioter identified in the article is him.  He replied that he does not know.

   ii. However the Officer did not appear to consider the further evidence given by the Applicant on this point [Transcript para 191] that:

   191. INTERPRETER: Because I have been here for five years and when I go back at the airport they’re going to ask me and they are going to ask me ‘where have you been in the past five years’.  And the story of the riot in Villawood and the fire and everything already they know about it and somehow they know that by my name you know me … was one of the people involved in this riot and in this fire incident.

   iii.     The Officer found:

   I also accept that the website of the Australasian Legal Information Institute which detailed the nature of the rioter’s behaviour, conviction and sentences, referred to the claimant as ….  It refers to the claimant’s lawyer submitting that he had consumed alcohol as a mitigating factor for his behaviour.  However, no reference is made to the claimant’s identity of [the applicant], which he used in Iran until his departure for Australia in 2010.  I also note that his photograph did not appear in these reports that if it had been taken, could lead to him being identified in Iran.  Therefore, I do not accept that he will be identified by the Iranian authorities as being convicted of his involvement in the riot.

   iv. In making the above finding the Officer failed to have regard to the biographical details and claims for protection published in the Supreme Court decision by which the identity of … could be matched with the identity details of [the applicant] known by the Iranian Embassy and authorities, though the travel document request(s) and associated correspondence, and communications, including with IOM.

   10. The IMA Protection Officer erred through Failure to consider that widespread publication in the Supreme Court decision of the claims of [the applicant] generated a profile of interest for the Iranian authorities in the person as having an anti-government profile such that they would have the interest and therefore the capacity to identify [him] as an alias of [the applicant] and to punish him accordingly.

   Particulars:

   i. The Respondent did not engage with the Applicant's pre-interview submissions where it was stated:

   [CB 183] What follows from the above is that Iranian asylum seekers are viewed by the Iranian authorities as traitors and as having (or at least having expressed) anti-regime views and as such would be vulnerable to punishment upon return. [The applicant] is particularly vulnerable because his request for protection and details of his involvement in the Villawood protests (including his intoxicated state - an act considered to be against Islam) have been widely reported.

   ii.The Respondent did not engage with the Applicant's post interview submissions where it was stated:

   [CB 197-198] "It may readily be accepted, however, that the removal process from Australia to Iran, would require either the Australian authorities or [the applicant] to disclose any aliases, activities and criminal convictions while overseas. This is particularly so given he will need to apply for a new passport or travel document to re-enter Iran. It may also be accepted that Iranian authorities and agencies have the relevant capability to identity that … is the same person as [the applicant] [CB 198]

   iii. The IMA Protection Officer erred through Failure to address the claim of the Applicant's representative and materials on the file that the Iranian Embassy used intelligence gathering methods to discover the identities of Iranian asylum seekers, including the use of informants.

   iv. The IMA Protection Officer erred through Failing to consider the claims that the Iranian Embassy in Australia was likely acting as an intelligence gathering operation using sophisticated intelligence gathering means to identify asylum seekers in Australia.

   v. The IMA Protection Officer erred through Failure to address the specific claim raised by the Migration Agent that "Iranian authorities and agencies have the relevant capability to identify that … is the same person as [the applicant]"

   vi. The IMA Protection Officer erred through Failure to address an issue that arose squarely on the materials under consideration, and which was raised by the Applicant's representative as a claim, that sufficient integers of Mr [Applicant’s] identity were included within the identity of … as described within the published Supreme Court decision, to enable the identification by the Iranian Embassy of … as [the applicant].

   vii. The IMA Protection Officer erred through Failure to consider the evidence that the Iranian authorities had an ongoing file on [the applicant] which would only accumulate further information through time and the repeated Travel Document requests, associated correspondence and communications.

   viii. The IMA Protection Officer erred through Failure to consider an issue which arises squarely on the materials that the likelihood of the Iranian authorities matching … as an alias of [the applicant] is likely to grow with time rather than to diminish.

   ix.The IMA Protection Officer erred through Failing to consider evidence on the file (being the Travel Document request(s)) as evidence which would be subjected to intelligence analysis by the Iranian Embassy and Authorities for the purpose of identifying asylum seekers and their aliases and activities in Australia.

   x.The IMA Protection Officer erred through Failing to consider issues that arose squarely from the materials on the file including the Travel Document Request of 2010 lodged with the Iranian Embassy, as evidence which the Iranian authorities would use for the purpose of identifying any aliases of [the applicant].

   xi.The IMA Protection Officer erred through Failing to consider issues concerning the 2nd Travel Document request in 2011 including whether the document was lodged at the Iranian Embassy, whether the Iranian Authorities were notified that a Travel Document request had been completed (irrespective of whether it was lodged), and whether third parties such as the family of the Applicant in Iran, the Removal Company, or the IOM, all of which were notified of the Travel Document (2011) request, had any interactions with the Iranian Embassy or Ministry of Foreign Affairs concerning the 2nd travel document request.

   xii.The IMA Protection Officer erred through Failing to consider evidence on the file that the consent form to the IOM identified … as an alias of Mr [Applicant].

   xiii.The IMA Protection Officer erred through Failing to consider the Applicant's specific response in the interview that the Iranian Authorities would immediately be aware that the name … simply indicated the person … was a Feili Kurd from Iraq using an alias and was not their true [identity].

   xiv.The IMA Protection Officer erred through Failure to consider the claim that future travel document requests, would expose the Applicant to intelligence gathering opportunities of the Iranian Embassy by which he would be identified as having the alias …

   xv.The [Officer] erred by Failure to consider the claim that any return to Iran would involve questioning of the Applicant by the authorities which would reveal his alias in Australia of … and therefore the information in the Supreme Court decision about his drinking of alcohol to intoxication and details of his claims against Iran in the Supreme Court decision.

   xvi. The IMA Protection Officer erred through Failure to consider the evidence that the Iranian Embassy and the Iranian Authorities possessed sufficient identification information about [the applicant] to match that information with the identification information and claims for protection published in the Supreme Court decision and to therefore identify … as an alias of [the applicant].

   xvii.The IMA Protection Officer erred through Failing to consider the evidence that [the applicant’s] use of Opium in Iran was a common feature with the publication in the Supreme Court decision about the opium use in Iran of … and so identifying … as an alias of [the applicant].

   xviii. The Officer erred through Failure to consider an issue that arose squarely on the evidence which was the question of how the Iranian Embassy and Ministry of Foreign Affairs would use any intelligence information concerning [the applicant] provided to them in the Travel Document requests or which they acquired from associated correspondence or communications of Australian government officials, or from third parties aware such as the family of [the applicant] (which was expected to contact the Iran Ministry of Foreign Affairs), the Removals Company, and the International Organisation for Migration for the purpose of identification of [the applicant] as one and the same person as ….

   26. The Officer erred through Unreasonableness by failing to proceed on the only reasonable assumption available to a decision maker that the Iranian Embassy and authorities could it would be presumed would identify … as an alias of [the applicant].

   Publication of the Applicant’ claims for protection – Failed Asylum Seeker

   29. The IMA Protection Officer erred through Making a finding against the evidence, and which failed to consider the evidence in the Supreme Court decision, by finding that the Applicant’s claims for protection against Iran were not published.

   Particulars:

   i. The Officer failed to identify that the Applicant's claims and biographical details were published together in the Supreme Court judgement, thereby linking the Applicant's published claims for protection with the Applicant's identity, as known to the Iranian Authorities.

   ii.The IMA Protection Officer erred through failing to consider that identification may occur in relation to the publication of the Applicant's claims and biographical data together in the Supreme Court [judgment].

   iii. The Officer found:

   [CB219] … With respect to the claim that his protection claims were publicly disclosed, I am not satisfied that this is the case.  Refugee claims are kept confidential by the Department.  As such, I am satisfied that the applicant’s refugee claims have not been disclosed to the Iranian authorities.

   …[CB222] I accept that it is possible that the Iranian authorities may suspect the claimant had travelled to Australia and claimed asylum.  However, refugee claims are kept confidential by the Department of Immigration and Border Protection (DIBP).

   iv. The above finding was plainly wrong as the Applicant’s claims were published in the Supreme Court [judgment] along with the Applicant’s biographical data.

1. In addition to the affidavit introducing it, the application is supported by the affidavits of Mr Taylor made on 27 June 2017, 15 December 2017, 14 November 2018 and 4 December 2018.  I received as a submission a further affidavit of Mr Taylor made on 19 December 2017.

2. I also have before me as evidence the book of relevant documents filed on 31 August 2017.

3. Both the applicant and the Minister filed pre-hearing written submissions and also made oral submissions through their representatives at the trial.  There is no dispute that the Court has jurisdiction to deal with the matter.

Consideration

1. The applicant’s migration history in Australia has been lengthy and tortuous.  For present purposes, his claim for protection is a sur place claim, because of his participation in a riot at Villawood and his prosecution for that riot in the NSW Supreme Court.  The applicant fears that because details about him and his protection application were published by the NSW Supreme Court in its reasons in the criminal proceedings (which received media publicity), he is at risk of harm in Iran.  The applicant has a particular fear that because his consumption of alcohol received publicity, he will be harmed on return to Iran for that breach of sharia law.

2. Although the grounds of review and their particulars in the application are discursive, the propositions arising from the applicant’s oral submissions at trial are relatively simple.  The first is that by a combination of disclosure of his personal details to the Iranian Embassy by the Minister’s Department and the publicity received by the judgment of the NSW Supreme Court on the criminal trial, the Iranian authorities must be aware of the applicant’s claim for protection, his involvement in the Villawood riot and his consumption of alcohol.  The applicant contends that the finding of the ITOA to the contrary was not open to it on the material before it.  As a secondary issue, the applicant contends that it was procedurally unfair for the ITOA to ask the applicant how the Iranian authorities would know about the applicant in circumstances where documents available to the ITOA (but not available to the applicant) made clear why this was so.

3. Further, the applicant contends that the ITOA fell into error in dealing with the applicant’s claim concerning the application of sharia law to his alcohol consumption in Australia should he return to Iran.

4. The Minister disputes that the ITOA fell into error in any of these respects and contends that, even if it did, the ITOA considered what the position would be in the event that the Iranian authorities did know of the applicant’s claims and circumstances, including his alcohol consumption.

5. I prefer the Minister’s submissions in relation to the grounds in the application, including as articulated orally at the trial, with the exception of the core claim on the identification of the applicant by the Iranian authorities. 

Ground 1

1. In the first ground the applicant contends that the Assessor failed to consider cumulatively the sur place claims advanced by the applicant first, that he was at risk due to the publication of his claims for protection against Iran, and secondly, that he was intoxicated during the riot at Villawood.

2. The Assessor addressed the claim that the Iranian authorities would discover he was involved in the Villawood riot.[22]  The Assessor was not satisfied that the Iranian authorities would become aware of the applicant’s conduct either through the media reporting of the incident, or the online publishing of the judgment wherein the applicant’s offences are addressed. That is because in neither the judgment nor the media report was the applicant referred to by the name by which he is known in Iran. The Assessor further found that even if his conduct and criminal conviction in Australia did come to the authorities’ attention, his actions were not directed towards the Iranian government and he did not have an anti-government political profile. The Assessor also relied upon an absence of information regarding punishment of Iranians for offences committed outside of Iran. The Assessor’s findings were open to him.

   [22] at CB 217.5

Grounds 5-9B (sharia claims)

1. In Ground 5 the applicant asserts a denial of procedural fairness because the Assessor failed to consider that the reason he would be punished for the extra-territorial offence of being intoxicated was because it was a breach of sharia law. The claim cannot be accepted. First, the Assessor plainly understood the claim advanced by the applicant that he was concerned that if he was discovered by the authorities to have consumed alcohol, albeit abroad, he would be punished under Islamic law.[23] Secondly, the Assessor expressly put to the applicant during the interview that he was not caught drinking in Iran, but in Australia, and asked him why he would receive a punishment in Iran.[24] The question of whether Iranian law applied to offences committed by Iranians whilst overseas was explicitly raised by the Assessor.

   [23] CB 211.6, CB 215.3, CB 217.7

   [24] CB 215.3

2. In Ground 6A the applicant repeats the substance of the complaints in Ground 5.  The ground appears further to allege a failure by the Assessor to engage “intellectually” with the claim that the offence of consuming alcohol was punishable wherever it was committed, and failed to consider that claim “conjoined with” the publication of the applicant’s claims. No error is established. First, the Assessor took into account and made findings in relation to the applicant’s fear that he would be at risk of punishment in Iran for drinking alcohol. The Assessor found that the applicant would not be identified from the Supreme Court judgment as the person involved in the Villawood riot due to being referred to under a different name from that by which he is known in Iran.  Secondly, he found that even if his alcohol consumption did become known his actions were not against the state and he lacked a profile.  The Assessor found further that he could not find any information that the Iranian authorities persecute or target Iranians who are convicted of criminal offences outside of Iran upon their return to Iran.

3. The thrust of the applicant’s claim appears to be that there is an offence under Iranian law making punishable the consumption of alcohol, even if done outside of Iran. However, the Assessor, as the applicant accepts, had before him the relevant country information relating to the laws of Iran. The Assessor had regard to an Austrian Red Cross Report, in particular (it would appear) to the section of the report addressing punishment for consumption of alcohol. By reference to the report, the Authority could not identify that the punishment for consuming alcohol extended to offences committed extra-territorially. The Assessor could not identify any information that the Iranian authorities would persecute or target Iranians convicted of criminal offences outside of Iran. Ultimately, this was a question of fact for the Assessor to determine. The applicant invites the Court to review the detail of the country information that was before the Assessor and to form its own views as to the meaning of that information, and the conclusions which he asserts ‘must’ be drawn from that information. However, this is not the Court’s role.[25]  The applicant appears to invite the Court to have regard to other sections of the Austrian Red Cross Report, dealing with the Iranian judicial system and the non-application of the principle of double jeopardy in Iran. These were matters for the Assessor to consider.

   [25] Attorney-General (NSW) v Quin [1990] HCA 21; 170 CLR 1

4. In Ground 7 the applicant asserts that the Assessor failed to consider evidence that the Islamic Criminal Code allows for punishment of offences committed outside of Iran.  In my view, the applicant is seeking to engage in a merits review of the information that was before the Assessor. It is well-established that the selection and consideration of country information is a matter within the jurisdiction of the Assessor.

5. In Ground 8 the applicant asserts that the Assessor failed to consider evidence that the Islamic Criminal Code does not allow for leniency for offences such as drinking alcohol. However, the Assessor made no findings to the contrary.

6. In Ground 9A the applicant asserts that the Assessor failed to “intellectually engage” with the applicant’s representative’s submission that becoming intoxicated in Villawood would be punished by the Iranian authorities in breach of the Islamic Code “in conjunction” with the fact that the applicant’s claims had been published. This ground appears to be repetitive of Ground 6A, which is addressed above. It was unnecessary for the Assessor to refer line-by-line to the matters expressed in the representative’s submissions.  The Assessor understood the applicant’s claims, took them into account, and gave cogent and logical reasons for finding that the claims did not result in a conclusion that protection obligations were owed.

7. In Ground 9B the applicant asserts that the Assessor failed to put to the applicant that the passage of time would affect whether the applicant would be punished. There was no requirement that the Assessor put such a view to the applicant. The issue of the time that had passed since the riot was relevant to whether the applicant would be detected by authorities so long after the incident. Whether the applicant would be detected, or identified, by the Iranian authorities for his role in the Villawood riot was explored during the interview. The Assessor found that the applicant would not be identified as the person who engaged in the Villawood riot.

Grounds 10A, 10 and 26 (identification claims)

1. In Ground 10A the applicant asserts that it was “virtually inevitable” that the Iranian authorities would identify him by his alias by comparing the biographical details revealed in the Supreme Court judgment and the details given on the applicant’s travel document request form to the Iranian embassy.  Whilst the applicant, through his representative, submitted that the Iranian authorities and agencies “have the relevant capability” to identify the applicant through his alias, the assertion is disputed by the Minister, who contends that there was no basis upon which the Assessor might have been satisfied that the Iranian authorities could or would identify the applicant in the way contended.  I disagree with that submission, as discussed from [41] below.

2. In Ground 10 the applicant asserts that the Assessor failed to apply logic to look at various materials before him. However, the Minister submits that there is no suggestion that the applicant, who was represented, explained to the Assessor the connections between these documents in order to establish that the Iranian authorities had the capability to identify the applicant.  The Minister submits that it was not incumbent on the Assessor to “connect the dots”. Expressing that various claims “arose squarely from the materials on the file” is insufficient to identify error by the Assessor, whether as a failure to consider a claim advanced by the applicant, or as an instance of illogical decision-making. The applicant’s own evidence on the subject[26] is said to be demonstrative of the vagueness inherent in the claim, where the applicant related that he would be questioned by authorities at the airport and that:

   the story of the riot in Villawood and the fire and everything already they know about it and somehow they know that by my name you know me … was one of the people involved in this riot and in this fire incident.

   [26] at [191] of the transcript of the ITOA interview

3. The Minister also contends that that evidence does not begin to explain how the authorities might be able to discover that the applicant was involved in the Villawood incident.  It is said not to be for the applicant to suggest how it is that the Assessor might have gone about determining the claim; it was for the applicant to present his arguments to the Assessor for consideration.[27]

   [27] Appellant S395/2002 v Minister for Immigration [2003] HCA 71; 216 CLR 473 at [1] (Gleeson CJ)

4. In Ground 26 the applicant asserts that the Assessor’s conclusion that the applicant’s use of an alias would not be known to the Iranian authorities was not available to the Assessor and was therefore unreasonable. Whether the Iranian authorities knew, or would come to know, of the applicant’s alias was a question of fact for the Assessor to determine. The Authority applied itself to the question and it gave an answer. Its answer was supported by reasons. The Authority’s conclusion was not unreasonable, in that it had an evident and intelligible justification and was not outside of the bounds of “possible, acceptable outcomes”.[28]

   [28] Minister for Immigration v Li [2013] HCA 18; (2013) 249 CLR 332 at [105]

5. The real problem in this case is that the Assessor did not address the cumulative impact of the disclosure of the applicant’s personal details by the Minister’s Department to the Iranian embassy (for the purpose of seeking to arrange the applicant’s voluntary return to Iran) and the recitation of personal details concerning the applicant in the Supreme Court judgment, in particular at [63]-[70].  At the ITOA hearing, the Assessor invited the applicant to tell him how the Iranian authorities would know that the person named in the Supreme Court proceedings was the applicant.  In other words, the Assessor left it to the applicant to explain to him how the Iranian authorities would “connect the dots”.  The problem with that approach, however, is that the applicant did not at that time know that his personal details had been disclosed to the Iranian embassy by the Minister’s Department.  The Assessor knew, or should have known.  Those details are contained in the affidavit of Mr Taylor made on 15 December 2017.  I accept on the basis of that affidavit and submissions made at the hearing before me, that it would have been a relatively simple matter for the Iranian authorities to link the personal details of the person named in the Supreme Court proceedings with the person the subject of the Departmental correspondence to the Iranian embassy. 

6. In the light of these considerations, it was unfair for the Assessor at the hearing not to disclose to the applicant how his personal information had been disclosed to the Iranian authorities, and what had been disclosed.  It was also disingenuous for the Assessor to express ignorance as to how the Iranian authorities would find out that the person described to the Iranian embassy, and the person described in the Supreme Court judgment were one and the same.  The Assessor’s conclusion[29] that he did not accept that the Iranian authorities would identify the applicant as being involved in the Villawood riot failed to take into account the significant evidence, being the disclosure of the applicant’s personal information to the Iranian authorities by the Minister’s Department.  The unfairness of the approach taken at the hearing, together with the failure to deal with the very significant information constitutes reviewable legal error.

   [29] at CB 222

The publishing of the applicant’s claims

1. The applicant submits separately that the Assessor erred in its finding that the applicant’s protection claims were not published. The applicant submits that it demonstrates the Assessor failed to consider the Supreme Court judgment. However the applicant misunderstands the Assessor’s findings where he stated:[30]

   With respect to the claim that his protection claims were publicly disclosed, I am not satisfied this is the case.  Refugee claims are kept confidential by the Department.  As such, I am satisfied that the applicant’s refugee claims have not been disclosed to the Iranian authorities.

   [30] at CB 219.6

2. The Supreme Court judgment, whilst the applicant contended it disclosed information upon which he relied to suggest he was owed protection obligations, did not constitute a publishing of his protection claims. The Assessor was clearly referring to the disclosure of the applicant’s private claims as submitted to the Minister’s Department. There is no suggestion those claims were published, inadvertently or otherwise, although important asserted facts supporting those claims were published.

Conclusion

1. The applicant has succeeded in establishing that the decision of the ITOA is affected by reviewable legal error.  The applicant should receive the relief he seeks.

2. I will hear the parties as to costs.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date:  8 February 2019