FEDERAL CIRCUIT COURT OF AUSTRALIA
MZZBO v MINISTER FOR IMMIGRATION & ANOR	[2013] FCCA 1832	

Catchwords: 
MIGRATION – Review of recommendation of Independent Merits Reviewer (“IMR”) – grounds argued being that the IMR made findings of fact about a particular social group and about the applicant’s membership of such a group without evidence; findings illogical or irrational and no indication of IMR undertaking a process of evaluating and preferring evidence – no error found – review application dismissed.	

Legislation:
Migration Act 1958 (Cth), s.36(2)

1951 Convention Relating to the Status of Refugees, as amended by the 1967 Protocol relating to the Status of Refugees,  Article 1A	

Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387
Minister for Immigration and Border Protection v MZYTS (2013) FCAFC 114
Minister for immigration and citizenship v SZMDS (2010) 240 CLR 611
NABD of 2002, Applicant v Minister for Immigration and Multicultural and Indigenous Affairs 216 ALR 1
Plaintiff M61/2010E v The Commonwealth (2010) 243 CLR 319	

Applicant:	MZZBO	

First Respondent:	MINISTER FOR IMMIGRATION & BORDER PROTECTION	

Second Respondent:	RODGER SHANAHAN IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER	

File Number:	MLG 1294 of 2012	

Judgment of:	Judge O'Dwyer	

Hearing date:	4 November 2013	

Date of Last Submission:	4 November 2013	

Delivered at:	Melbourne	

Delivered on:	8 November 2013	

REPRESENTATION
Counsel for the Applicant:	Mr G. Barnes	

Solicitors for the Applicant:	Victoria Legal Aid	

Counsel for the Respondents:	Mr N. Wood	

Solicitors for the Respondents:	Australian Government Solicitor 	

ORDERS
(1)	The name of the first respondent be amended to read, “Minister for Immigration and Border Protection”.
(2)	The application filed on 16 October 2012, as amended, is dismissed.
(3)	The applicant pay the first respondent’s costs.
(1)	
FEDERAL CIRCUIT COURT 
OF AUSTRALIA 
AT Melbourne	
MLG 1294 of 2012
MZZBO	
Applicant

And

Minister for Immigration & Border Protection	
First Respondent
RODGER SHANAHAN IN HIS CAPACITY AS independent merits reviewer 	
Second Respondent

REASONS FOR JUDGMENT
Introduction
1.	By an amended application the applicant seeks to review the findings and recommendation (collectively, “the recommendation”) made by the second respondent ("the IMR"); which recommended to the first respondent (“the Minister”) was that the applicant not be recognised as a person to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees, as amended by the 1967 Protocol relating to the Status of Refugees (“the Convention”).
2.	In the amended application the applicant set out two grounds for review; of which one was abandoned at the hearing, leaving only the following:
“ 2.
 a)     The second respondent misconstrued and misapplied the test set out in section 36(2) of [the Act] in relation to whether Australia has protection obligations to the applicant under [the Convention] by failing to consider properly
i)	whether a group defined as ‘failed asylum seekers returning to Iran’ is a particular social group;
ii)	whether the applicant was a member of a particular social group; namely, a group defined as ‘failed asylum seekers returning to Iran.’
b)	The second respondent, by failing to find that a group defined as ‘failed asylum seekers returning to Iran’ was a particular social group and that the applicant would not be a member of a particular social group, failed to make the recommendation in accordance with the law by ignoring relevant material, making an erroneous finding or reaching a mistaken conclusion that was not open on the evidence.” 
3.	I have had the benefit of written submissions by both parties, which were supplemented and expanded upon by oral submissions at the hearing.
Background
4.	The applicant is a Persian Shi’a Muslim male born in Iran on 
12 December 1961, now aged 51. He arrived in Australia at Christmas Island on 8 February 2011 without a visa. He is an “offshore entry person” for the purposes of the Act. The Minister acceded to the applicant's request for a Refugee Status Assessment and on 4 May 2011, pursuant to that process, the applicant was assessed as someone that did not meet the definition of a refugee as set out in the Convention. On 10 May 2011, however, the applicant requested an independent merits review of that assessment, which request was supported by the applicant's adviser’s written submissions - which relevantly, for this review, stated that the applicant feared persecution in Iran on account of his membership of a particular social group, being ‘people who have lived in a Western country’ or a ‘returned failed asylum seeker’.
IMR’s Pertinent Findings
5.	In a thorough examination of the applicant’s claims and submissions, the IMR considered country information presented by the applicant’s advisers in a lengthy written submission and also considered the country information provided by the Australian Department of Foreign Affairs and Trade ("DFAT") in its report in 2007, which was reaffirmed by DFAT in 2010.
6.	Without going into the detail of that country information, it is important that some aspects of it should be highlighted hereafter, as it is the nature of that information, and how the IMR considered and applied it, that forms one of the bases of the ground for review. Counsel for the applicant contended that a conclusion reached by the IMR at [122] of the recommendation was reached without evidence, or was irrational having regard to the evidence before the IMR. 
The pertinent findings of the IMR upon which the applicant sought to establish the ground for review are as follows:
120. 	“Based on this, I do not accept that ‘failed asylum seekers returning to Iran’ constitutes a PSG [a particular social group]. While ‘failed asylum seekers returning to Iran’ may share a common attribute, their possession of this attribute does not make them cognisable from society at large. On return to Iran they will be able to return to their previous lives in a way that is the same as the rest of mainstream Iranian society.
121. 	For the same reasons as above I find that ‘people who have sought asylum in a western country’ also do not constitute a PSG. While such a group may share a common attribute, their possession of such an attribute does not make them cognisable from society at large.
122.	Even if such a group were cognisable, I have examined relevant country information and the claimant's adviser’s submission relating to the treatment of returnees and failed asylum seekers to Iran. There is general agreement amongst these sources that the people who may be interrogated, placed under surveillance, and/or detained on return will have a profile as a political activist or have been engaged in illegal activities or been actively and publicly critical of the government whilst overseas. There is no evidence to suggest that being a failed asylum seeker would, in itself, result in mistreatment on return to Iran.”
Contentions and consideration
7.	It is fair to say that the applicant's submissions made orally expanded and developed those set out in his written submissions. 
In essence, the thrust of the applicant's contention was that jurisdictional error had been committed by the IMR and identified that error, in support of that contention, as having three separate bases; namely,
i)	the IMR failed, in effect, to follow the proper process set out in Applicant S v Minister for Immigration and Multicultural Affairs (“Applicant S”) where the three criteria, or rather the indicia, when met, confirm the existence of a particular social group as required for the enlivenment of protection obligations under the Convention;
ii)	the applicant expanded his case by reference to and reliance upon the recent Full Federal Court’s decision in Minister for Immigration and Border Protection v  MZYTS (“MZYTS”) with particular reliance on the comments expressed at [50] of that decision; and finally,
iii)	the finding set out at [122] of the recommendation was irrational fact-finding having regard to the evidence before the IMR concerning persecution of returnees to Iran.
8.	In respect of the first limb at [7.i)] above, the applicant’s Counsel contended that, in order to determine whether the applicant fitted into a particular social group within the meaning of Art. 1A of the Convention, Applicant S provided for three criteria to be met. The first was that the group must be identifiable by a characteristic or attribute common to all members of the group; secondly, the characteristic or attribute that is common to all members of the group cannot be the shared fear of persecution; and thirdly, the possession of that characteristic must distinguish the group from society at large.
9.	Counsel for the applicant contended that the IMR failed to consider and make findings in respect of each of the criteria spelt out above. Implicit in that contention is that it was necessary as a procedural step, and the failure to comply with that necessary procedural step, amounted to jurisdictional error. In support of that contention the applicant took particular issue with the IMR's finding that failed asylum seekers returning to Iran were not a group of people "distinguishable from society at large". It was contended that in order for a finding such as that to have been made, the IMR should have first addressed fully each criteria spelt out in Applicant S. In my view this contention is not sustainable. Applicant S does not suggest a process to be followed where each criterion must be addressed.  It states all of the criteria must be met before a finding that a person was a member of a particular social group be made. But if one of the criteria is not met, then a finding of membership of such a group cannot be made. Where there is a finding that the applicant did not meet one of the criteria, as in this case, then, simply, he could not be considered a member of a particular social group that would enliven the protection afforded by the Convention. The fact finding role is peculiarly within the domain of the decision maker, in this case, the IMR. It is clear from a reading of the recommendation, and the findings supporting that recommendation, that the IMR made a finding that ‘failed asylum seekers returning to Iran’ do not constitute a particular social group. 
10.	More particularly, even should the IMR have been wrong in that finding, as he postulates, he made a further finding that after an examination of relevant country information, inclusive of an examination of the adviser’s submissions relating to the treatment of returning and failed asylum seekers to Iran, unless such a failed asylum seeker and a returnee had a political activist profile or was assessed as having engaged in illegal activities or been actively publicly critical of the Iranian government whilst overseas (which in another finding the IMR said he did not fit such a profile), then there is no evidence to suggest that being a failed asylum seeker would, in itself, result in mistreatment on being returned to Iran. 
11.	It is fair to say, in my view, that the country information presented to the IMR, which was clearly fully considered and evaluated by him, would not have led to a finding that the applicant was, indeed, someone who would attract the attention of authorities in Iran because of his lack of political activism or because he was not, on the evidence, previously engaged in illegal activities, or because he was publicly critical of the government whilst overseas. The evidence is clear that he did none of these things.
12.	In respect of the argument based upon the decision in MZYTS and the reliance placed on the comments at [50], it is helpful to set out that paragraph.  It states:
"50.		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 the 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.”
13.	In this regard, Counsel for the applicant contended that there is no evidence of the process of weighing evidence presented to the IMR and stating a process by which contradictory evidence is preferred above the other.  However, that contention is premised on the assumption that the country information before the IMR sourced from the applicant’s advisers and that provided by DFAT was contradictory. My reading of the country information is that it does not disclose contradictory evidence that would require engagement of an assessment and preferential process.
14.	Further, Counsel for the Minister properly, in my view, characterised MZYTS as a case that centred on the question of whether an inference could be drawn that evidence was not considered when there had been no discussion of the contradictory evidence. In the case before me, however, it is evident, in my view, that the IMR explored in detail the nature of the evidence before him and that the findings made, were open to him.
15.	The significant finding in that regard was that at [122]. There was general agreement amongst the sources of country information that people who are interrogated, placed under surveillance, or if there is evidence of them being detained on return, will have a profile as a political activist, or would have been engaged in illegal activities or where the applicant has been actively and publicly critical of the government whilst overseas, were, in effect, the only instances of where a returnee would likely be subjected to persecution on return to Iran.
16.	There was an earlier finding that this was not the case in respect of the applicant. Therefore, as there was no evidence to suggest that being a failed asylum seeker would, in itself, result in mistreatment on return to Iran, the applicant did not qualify as a member of a particular social group. Counsel for the Minister went to some trouble to refer to the various paragraphs of the recommendation that highlighted, in particular the country information provided by the applicant and his advisers, and the distinction was made to indicate that those with such a profile have in the past, and reasonably expected to in the future, suffer mistreatment on return to Iran. The fact finding task, as already stated, is within the peculiar domain of the IMR in this instance. A fair reading of the recommendation, in my view, shows the reasoning developed and followed by the IMR. The distinction made between ‘simple’ returnees or failed asylum seekers without the other attributes discussed above was justified because there was no evidence to suggest that such ‘simple’ returnees would be subjected to persecution. Where the applicant was reliant on a different finding, it was for the applicant to present his case, supported by evidence.  It is not for the IMR to make his case for him.  There was no evidence that would support a finding deserved by the applicant that he was at risk. This aspect of how the applicant's ground for review is prosecuted is unsustainable.
17.	The final limb articulated by the applicant to justify a favourable review of the recommendation is that the findings made by the IMR at [120] – [122] are irrational. Again, the applicant relies upon the nature of the applicant’s evidence about persecution of returnees to Iran and asks the Court to conclude that a proper consideration of such evidence could not support the findings made, that in turn supported the recommendation.
18.	The evidence put before the IMR by the applicant and his advisers clearly, and consistently, shows those returnees considered to be at risk of persecution are those identified as having that political, or criminal profile alluded to earlier.  In addition, there was also the question of those returnees that left illegally being at risk.  The trier of fact, the IMR, however, found that the applicant had left legally and therefore did not qualify under this attribute.
19.	In similar vein as the matters discussed above in respect of the contention centred on MZYTS, the same applies in rebuttal to the contention that the IMR’s findings were irrational.
20.	It is trite to say that the circumstances that would justify a successful challenge to the IMR's factual findings on the basis of irrationality are very limited. There must be a manifest irrationality in respect of how the IMR made findings of fact and in order to determine the irrationality or illogicality of a fact-finding exercise, one is given insight in Minister for immigration and citizenship v SZMDS at [135] where Crennan and Bell JJ stated:
“…Whilst there may be varieties of illogicality or rationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision maker might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if a decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn...”

21.	The illogicality or irrationality said to exist in the findings of the IMR relate to the contest between the country information supplied by the applicant and his advisers, which, in short compass, emphasised the real prospect of persecution of returnees to Iran who left illegally and/or had a political or criminal profile as discussed, and the 
non-evidence of persecution per se of returnees or failed asylum seekers.  As a result of the lack of that evidence, the IMR concluded that such returnees would not face persecution.  In my view, the IMR clearly identified, using the evidence provided by the applicant and his advisers, those returnees that would suffer persecution, but drew a distinction between such returnees and the applicant – a distinction on the evidence open to the IMR to make.
22.	Clearly, in my view, the recommendation was not illogical or irrational and was open to the IMR to make based upon the evidence, or lack thereof. This aspect of the ground for review is not sustainable.
Conclusion
23.	The one ground for review, with its constituent bases, for the above reasons, is not sustainable. No error has been committed on the part of the IMR. The application for review filed on 16 October 2013, as amended, is therefore dismissed, with costs.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge O'Dwyer

Associate:  

Date: 8 November 2013