AMD19 v Minister for Home Affairs

[2020] FCCA 366

FEDERAL CIRCUIT COURT OF AUSTRALIA

AMD19 v MINISTER FOR HOME AFFAIRS & ANOR [2020] FCCA 366

Catchwords:
MIGRATION – Safe Haven Enterprise Visa – review of decision of the Immigration Assessment Authority – no legal unreasonableness established – Amended Application dismissed with costs.

Legislation:

Migration Act 1958 (Cth), ss.36(2A), 473CB

Cases cited:

BIR17 v Minister for Immigration and Border Protection [2019] FCA 850
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; 92 ALJR 713

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

MZZJO v Minister for Immigration and Border Protection (2014) 239 FCR 436

Applicant: AMD19

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: CAG 1 of 2019

Judgment of: Judge Neville

Hearing date: 10 July 2019

Date of Last Submission: 24 July 2019

Delivered at: Canberra

Delivered on: 27 February 2020

REPRESENTATION

Counsel for the Applicant: Mr Jones

Solicitors for the Applicant: Firmstone & Associates

Solicitors for the Respondents: Clayton Utz Canberra

ORDERS

1. The Amended Application filed on 31^st May 2019 be dismissed.

2. The Applicant pay the First Respondent’s costs in the sum of $7,467 as per Schedule 1 Part 3 of the Federal Circuit Court Rules 2001.

3. All extant Applications be dismissed, the matter finalised and removed immediately from the docket. 

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

CAG 1 of 2019

AMD19

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The Applicant in this matter is a citizen of Iran.  He arrived in Australia on 4^th July 2013 as an unauthorised maritime arrival.  On 14^th July 2017 he applied for a Class XE Subclass 790 Safe Haven Enterprise Visa (“SHEV”).

2. On 2^nd May 2018, a Delegate of the Minister refused that Application.  On 14^th December 2018, the Immigration Assessment Authority (“the IAA”) affirmed the Delegate’s decision.[1]  It is from the IAA’s decision that the Applicant seeks relief from this Court pursuant to an Application filed 11^th January 2019.  An Amended Application was filed on 31^st May 2019.

   [1] The IAA’s decision is at Court Book (“CB”) 216 – 234.

3. The Applicant raised two grounds of review: one in relation to par.33ff of the IAA’s decision regarding the proper treatment, as per the Full Court’s decision in MZZJO, regarding alleged omissions in the Applicant’s entry interview.[2]

   [2] MZZJO v Minister for Immigration and Border Protection (2014) 239 FCR 436 especially at [56].

4. The second ground of review related to the IAA’s conclusion at par.44 of its decision that the Applicant had not relevantly crossed any “red lines” regarding expression of political and other anti-regime views contrary to the political and religious rulers in Iran.  Here, the Applicant relied upon the High Court’s decision in SZVFW.[3]

   [3] Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; (2018) 92 ALJR 713.

5. For the reasons that follow, the Application filed 11^th January 2019, as amended, must be dismissed, together with an Order for costs in the First Respondent’s favour in accordance with the Rules of this Court, Schedule 1 Part 3.

The IAA’s decision

1. Summarised, the IAA’s decision may be outlined as follows.

2. In pars.3 – 23, the IAA dealt with the Applicant’s contention (seemingly accepted) that his former migration agent made a “very poor and inaccurate application” on the Applicant’s behalf. Pursuant to s.473CB of the Migration Act 1958 (“the Act”), the IAA said that it had regard to the new information that was presented by the Applicant.  That information was as follows.

3. As indicated above, at par.8 of its decision, the IAA noted the claim made by the Applicant that, as a result of the former agent’s actions, the delegate made adverse credibility findings.  The IAA held that there were exceptional circumstances.

4. Part of the IAA’s decision included acknowledging (at par.9) discrepancies between the Applicant’s SHEV interview and asserted claims that the Applicant and his girlfriend had been raped by members of the Basij, a paramilitary force in Iran and part of the Islamic Revolutionary Guard Corps.  The IAA said that it was satisfied that the Applicant had misunderstood what the term “rape” meant, which included (in his view) “to touch somebody.”  He said, and the IAA accepted, that the Applicant had never told his former agent that he and his girlfriend were raped in March 2013.  This was, the IAA said, “credible personal information.”

5. The IAA then turned, at a little length (pars.10 – 13), to the claim by the Applicant that he had posted comments on social media, and had appeared at demonstrations, that were “anti-regime and anti-Islam” and “directly assaulting the Iranian regime.”  Various “posts” and screenshots were provided.  In submissions, the Applicant said that he would be viewed in Iran, as a result of his activities, as an apostate.

6. The IAA concluded that the social media posts included some that were in fact anti-American sentiment in the Iranian Parliament. Other posts were not considered to be anti-regime or otherwise.  As a result, the IAA held (par.11) that the social media posts did not constitute credible personal information.

7. There were, however, two social media posts in October 2014 and July 2016 that condemned executions in Iran and called for regime change.  The IAA held these to constitute credible personal information, which was not previously known and which may have affected the consideration of the Applicant’s claims. These posts were shared on Facebook.  The IAA considered that there were exceptional circumstances to justify consideration of them.

8. In relation to the Applicant’s “claimed protest activity”, the IAA said (par.13) that it was not clear whether this activity pre- or post-dated the Delegate’s decision. The Applicant did not refer to such protests, or his intention to engage in them, in his SHEV interview.  This was so notwithstanding being asked specifically in his SHEV interview about his political activities.  Further, there was no date or explanation of the photograph of the Applicant outside the Iranian Embassy in Canberra.  “Meaningful detail”, the IAA said, was lacking in relation to other alleged protest activities of the Applicant.  In the result, the IAA determined that there were not exceptional circumstances such as to warrant this information being considered.

9. At pars.14 - 23, the IAA considered a number of new claims by the Applicant’s representative, namely: (a) the Applicant had denounced Islam; (b) his hatred of Islam was evidenced by various postings on Facebook; (c) because of these postings, the Applicant would be viewed as an apostate; and (d) the Applicant faced harm, in part, due to previous issues with his neighbour.

10. The Applicant’s representative said that matters (a) – (c) above were in response to question 33 on his SHEV Application.  This was rejected by the IAA because question 33 asked about the Applicant’s religion; the answer was in fact left blank.  The IAA confirmed that it had listened to the audio recording of the SHEV interview in which there was no reference to any criticism of Islam.

11. The IAA noted that there were no comments by the Applicant in his SHEV interview, or otherwise, that were anti-Islam.  No explanation was given by or on behalf of the Applicant as to why his contention(s) regarding his anti-Islamic beliefs were not put before the Delegate.  The IAA determined that points (a) – (c) did not constitute credible personal information.

12. The Applicant’s claim regarding a dispute with his neighbour was not put before the Delegate.  No explanation was given why this was so.  No relevant details about such a dispute were otherwise provided.  The IAA determined that there were no exceptional circumstances to warrant its consideration (par.18).

13. In pars.19 – 22, the IAA considered two photographs provided by the Applicant on 29^th May 2018.  They show the Applicant and his former [un-named] girlfriend, the latter partially naked.  The Applicant advised that these photographs, as well as a sex video of the couple, were “leaked onto some Iranian pornography websites.”  This information was not before the Delegate.  No reason(s) was provided why this did not occur, or why it should be considered “credible personal information.”

14. The IAA said that the general information, such as it was, surrounding the photographs and the video was vague and that there was no “meaningful detail”, such as when the sex video was made or what websites it was posted to.  There was no information whether the video and photographs were taken prior to the Applicant leaving Iran.  Further, there was inconsistent, earlier evidence, about videos from the Applicant, which he said contained images of him and his girlfriend, in bathing costumes, hugging and kissing.  He said that there were several videos online of his girlfriend naked.

15. The IAA said that it was not satisfied that the information about the sex video could not have been provided to the Minister before the Delegate’s decision.  There were no exceptional circumstances to justify its consideration.

16. At par.23, the IAA referred to new country information from the Department of Foreign Affairs and Trade (“DFAT”), published on 7^th June 2018, regarding the treatment of Iranians who sought asylum abroad.  The IAA determined that there were exceptional circumstances to warrant consideration of this new information.

17. The Applicant’s claims for protection (pars.24 & 25), as set out in his SHEV Application, were considered.  Relevantly, those claims included that (a) he was from Fars Province, Iran, and  (b) while at University he was in a relationship with a girl named “N”.  His family disapproved of the relationship; her family did not know about it; (c) one evening returning from a birthday party, the couple were stopped by the police.  The Applicant claimed that he was violently beaten and his girlfriend raped in front of him.  Later, he said, he was raped in front of her; (d) some weeks later, N’s sister told him that a video of the Applicant and N had been posted online; (e) the Applicant subsequently attempted suicide; (f) the Applicant’s Mother, and N’s sister, suggested that he and N leave Iran.  They did so, as did some of N’s family; (g) the Applicant boarded a boat in Indonesia for Australia, but without N; (h) N’s parents lodged a “complaint” against the Applicant in Iran (after he had left the country) and a summons was issued; (i) as a result of the above, the Applicant fears that if he returns to Iran he will be targeted for serious harm or be killed by the Iranian authorities and/or N’s parents.

18. Other claims made by the Applicant concerned that there have been 5-10 court summonses issued for the Applicant; there are [further] videos and images of his girlfriend, N, posted online; his family are said to be supporters of the Green Movement. 

19. At par.40 of its reasons, the IAA noted that the name of this Movement (who were essentially anti-government) was given to demonstrators from 2009 – 2010 who protested against a certain [named] person who won the 2009 presidential election.  During those demonstrations, “thousands of demonstrators were detained, beaten and arrested by security forces.”  In the same place, the IAA noted that the Applicant did not claim that either he or his family had come to the attention of Iranian authorities at the time of the protests, or since as a result of any connection with the Green Movement whose supporters were part of the anti-government protests.

20. DFAT reports in 2016 (par.40) indicated that lower profile activists arrested in the earlier protests, and later released, were unlikely to face serious, on-going harassment.  A similar assessment was made by DFAT in 2018.

21. At pars.29 – 40, the IAA dealt with the Applicant’s claims regarding events in Iran and his reporting on them in Australia.  Put shortly, the IAA said (par.29) that the Applicant’s evidence regarding the various claims was “unconvincing”, and that there were “a number of inconsistencies in his evidence at different times that undermine the credibility of his claims.”

22. At par.38, the IAA found that, when considered cumulatively, the “evidence leads me to conclude that the Applicant was not recalling a genuine personal experience in relation to the events that he claims led to his decision to leave Iran.”  The IAA further held that “the Applicant has fabricated the majority of his claims.”

23. Without going through all of the detail recounted, it is sufficient to note the IAA’s concerns about the inconsistencies in the Applicant’s evidence regarding, in particular, (i) his girlfriend N, who sometimes is said to be his fiancé, where it was said that their conduct involved simply hugging and kissing in bathing costumes, while at other times they are filmed in sex videos, and his girlfriend photographed naked, with this material somehow being posted on various websites; (ii) his (and N’s) encounter with the Basij in early 2013, the details of which varied from different reports at different times; and (iii) a claim made during the hearing, after a short break, where the Applicant made a fresh claim that N’s Father, a prominent member of the Iranian army, wanted to take revenge on the Applicant for having sex before marriage with his daughter, such conduct being against the cultural and religious norms of Iran.

24. At par.37, the IAA summarised five areas of inconsistency in the Applicant’s evidence.  I will not repeat them here, save to note that they largely rehearse matters already noted earlier in these reasons.

25. At par.39, the IAA said that it was not satisfied that either the Applicant or N came to the attention of the Basij in March 2013 or at any other time.  It also rejected the claim that the Applicant featured in images or online material involving N and his relationship with her.  It found that claims in this regard were fabricated, as was his claim to have attempted suicide, and that N’s Father wished to pursue him for his conduct towards his daughter.  The IAA did not accept that the Applicant held adverse profiles with the authorities, or any other person, in Iran.

26. In relation to events in Australia, at pars.41 – 50, the IAA noted the following.

27. At par.41, the IAA confirmed that it accepted the Applicant’s account that since he had been in Australia he had shared on Facebook various articles (e.g. from the BBC) about youth, unemployment and the incarceration of protesters in Iran.  This information had been shared with friends in Australia and in Iran.

28. However, because the Applicant used a “first name pseudonym” on Facebook, the IAA questioned how he could be viewed in Iran as an apostate on the basis of the posts he had made.  It also said (at par.42) that there was no indication that anyone the Applicant fears had actually seen any of the social media posts.

29. The IAA noted, at par.42, that subject to crossing any understood “red lines”, quite robust criticism of the Iranian government was generally tolerated in public conversation and in online discussion on social media.  The “red lines” referred to persons and things like the Supreme Leader, the constitutional and territorial foundations of the Islamic Republic, and the place of Shia Islam in Iran.  Thus, charges, if laid against protesters, usually are in terms such as “propaganda against the State”, “insulting Islamic values or the Prophets”, and “insulting the Supreme Leader.”  The IAA noted DFAT reports that the more high profile a journalist or blogger the more likely that they will become subject to adverse attention if their material crosses “red lines.”

30. At par.43, the IAA first determined that, having regard to the material posted on Facebook, it did not cross any relevant red lines.  Secondly, the IAA said that the Applicant was not a journalist, blogger or part of any media organisation.  Thirdly, the IAA was not convinced that the Applicant’s Facebook posts were relevantly monitored, or if so, certainly not to the degree asserted by the Applicant.  The IAA said that, on the evidence, it was not satisfied that the Applicant would be imputed by the Iranian authorities to be “an anti-regime activist.”

31. Further, at par.43, the IAA said that, based on his social media posts, it did not accept that the Applicant was the anti-regime activist he claimed to be.

32. The IAA said that according to the Applicant’s own evidence, he claimed now that he no longer believed in Islam.  In this regard, country information from DFAT indicated (par.47) that apostasy was not usually sufficient to trigger prosecution.  It said that it was highly unlikely that there is monitoring of religious observance by Iranian authorities. Apostasy only usually comes to the attention of authorities, DFAT indicated, if there was some publication of such views.  Moreover, the IAA noted that non-practising Muslims constituted a large part of the population in cities and who lived daily lives without difficulty.

33. On the basis of the evidence before it, the IAA held (par.48) that the Applicant faced no real chance of harm if he returned to Iran because of his activity on social media, his political opinion (actual or imputed), his non-practise of Islam, as an apostate, or a combination of these matters.

34. Although not raised by the Applicant, the IAA considered any relevant risk of harm, should the Applicant return to Iran, on the basis of him being a failed asylum seeker.  Among other things, the IAA considered a recent DFAT Report (dated 7^th June 2018) which indicated that Iranian authorities usually pay little attention to failed asylum seekers.  Such attention as there may be arises from the returnee arousing some relevant interest.  Ultimately, the IAA determined (par.50) that the Applicant did not hold a profile such as likely to attract attention from the Iranian authorities.  And, it said, even if the Applicant was detained for questioning, it was unlikely that this would be for very long and would not otherwise constitute “serious harm.”

35. At pars.54 – 59, for the reasons given earlier, the IAA determined that Australia did not owe any protection obligations to the Applicant pursuant to the complementary protection provisions set out in s.36(2A) of the Act.

Grounds of Review

1. As set out in the Amended Application, filed on 31^st May 2019, the [amended] Grounds of Review were as follows:

   1. As part of the reason for rejecting the claim, the Immigration Assessment Authority ('IAA') stated in paragraph 39, "I find that the applicant has fabricated these claims, and his relationship with N, to enhance his application for protection. It follows that I reject the applicant's associated claims that he attempted suicide, that a complaint was lodged with N's father, that he is the subject of one or more court summonses, and that his mother has been visited by the Iranian authorities in connection with his whereabouts. I do not accept that the applicant has an adverse profile with the authorities, or any other person, in Iran". The IAA shows unreasonableness in its decision and assessing my situation and claims. The tribunal does not provide any evidence in support of their argument when they rejected my claim.'

   2. As part of the reason for rejecting the claim, the Tribunal stated in paragraph 56, "While I accept the applicant may be subjected to questioning or be briefly detained on return to Iran, I am not satisfied that this amounts to significant harm. I find that the questioning and the potential of being briefly detained individually or cumulatively do not amount to the death penalty, arbitrary deprivation of life, torture or that there I an intention to inflict pain or suffering, severe pain or suffering or cause extreme humiliation.". The IAA made jurisdictional error in its decision and assessing my submission. According to my claims, I am person whom Australia has [sic] protection obligations under the Refugees Convention and I do satisfy the criterion set out in s.36(2)(aa) of the Migration Act 1958.

   3. I kindly request the Honourable Court to kindly set aside the IAA's decision of dated 14 December 2018.

   Ground 1:

   1. The Authority made a jurisdictional error as it relied from paragraph 33 of its decision upon omissions of the Applicant at his entry interview without observing the caution identified by the Full Federal Court in MZZJO v Minister for Immigration and Border Protection (2014) 239 FCR 436 at [56].

   Ground 2:

   2. The Authority made a jurisdictional error as it reached a conclusion at paragraph 44 of its decision being that the Applicant had not crossed any "red lines" in circumstances where the conclusion was legally unreasonable because there was no evident and intelligible justification for the conclusion: Minister for Immigration and Border Protection v SZFVW [2018] HCA 30 at [10] per Kiefel CJ and at [82] per Nettle and Gordon JJ.

Submissions on behalf of the Applicant

1. Submissions were filed on behalf of the Applicant on 1^st July 2019; they were as follows:

   1.   There is before the Court an amended application for judicial review of a decision of the Second Respondent, the Immigration Assessment Authority (Authority). The Authority decided to affirm a decision of a Delegate of the First Respondent, the Minister for Home Affairs (Minister), to refuse the Applicant a Safe Haven Enterprise visa (visa). 

   2.   The Applicant submits that the decision of the Authority ought be quashed on two grounds.  The Applicant’s case turns upon the following passage in the reasons of the Authority:

   33.  Throughout the SHEV interview, the delegate raised a number of concerns with the applicant.  In particular, she asked why the applicant had not mentioned any of these claims in the entry interview. 

   …

   38.  When considered cumulatively, the above evidence leads me to conclude that the applicant was not recalling a genuine personal experience in relation to the events that he claims led to his decision to leave Iran.

   …

   43.  Country information indicates that the Iranian government may be criticised robustly both in public conversation and online including social media.  Media organisations represent different political views and do so forcefully provided they do not cross understood “red lines” which include respect for the Supreme Leader, the constitutional and territorial foundations of the Islamic Republic and the place of Shia Islam in Iran.  Political activists who are perceived to cross red lines (especially if they are seen to criticise the nature of and key institutions in the regime) are often charged and sentenced under offences such as ‘propaganda against the State’, ‘insulting Islamic values or the Prophets’ and ‘insulting the Supreme Leader’, which can carry lengthy prison terms.  There have been reports that the Iranian authorities frequently harass journalists, bloggers and other media professionals to ensure that they do not cross known red lines.  Harassment can include surveillance and monitoring, summons, arbitrary arrest and detention and imprisonment.  DFAT assesses that the more high profile a journalist or blogger is the more likely that they will become subject to adverse attention if the material they publish crosses red lines. 

   44.  Having regard to the material posted by the applicant on Facebook, I am not satisfied that it crosses any “red lines”.

   3.   With respect to Ground 1 of the amended application, in MZZJO v Minister for Immigration and Border Protection (2014) 239 FCR 436; [2014] FCAFC 80, the Full Court ruled (at [55]-[57]):

   55.    We agree with the Federal Circuit Court that the Tribunal’s conclusions were “well open to it” in the sense of being findings about the credibility of the account given by the appellant.  They were based only in part on the Tribunal’s questioning of the appellant about agnosticism.  They were also based on inconsistencies the Tribunal identified between the appellant’s various accounts of what had happened to him, and about his failure to mention certain matters at his entry interview.

   56.    On the latter issue, some caution should be exercised by decision-makers in relation to omissions by applicants of matters at entry interview.  They are conducted shortly after a person has arrived in Australia; in the case of the appellant, after a long journey on the ocean in cramped and difficult conditions.  On the evidence, a significant part of the entry interview content concerns questions designed to elicit information about so-called “people smuggling”.  They are the first substantive and formal engagement with Australian officials by people who come, as the appellant does, from regimes where authority figures may be viewed with some fear and mistrust.  A person is asked to articulate personal matters of family and individual history not only to a strange official, but also to an interpreter who is a stranger, without the assistance and support of a lawyer or migration agent. It is unlikely many interviewees appreciate the use to which the information they give might be put, notwithstanding the script which is read to them.  The interviewees are being asked to digest a lot of information quickly and in circumstances they may perceive as hostile.

   57.    Had the Tribunal relied only on a failure to mention details at the entry interview, we may have been inclined to see this as involving a misunderstanding of its task on review.  However, the Tribunal relied on inconsistencies arising from information presented by the appellant after the entry interview as well, including inconsistencies between the delegate interview and what he said to the Tribunal, and the somewhat inexplicable reluctance of the appellant to have his childhood friend, who arrived on the same boat, give evidence to corroborate aspects of his account. We consider its approach was open to it as a merits decision-maker, and the Federal Circuit Court was correct to so find.

   4.   It is submitted that the caution by the Full Court in MZZJO was not observed with the result that the Authority did not perform its task of review in the present case.  As indicated, paragraph 33 when read with paragraph 38 of the Authority’s decision indicates that the Authority relied in part upon the omission at the entry interview without regard to the matters identified by the Full Court in MZZJO.  As a result, the Authority made a jurisdictional error.

   5.   The second ground of review relies upon the law of legal unreasonableness, which requires an evident and intelligible justification for the Authority’s decision (see Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [10]).  It is submitted that there is no such justification for the Authority’s conclusion with respect to “red lines”.  The following matters are noteworthy:

   a)   The Authority found that the “red lines” included, but were not limited to, respect for the Supreme Leader, the constitutional and territorial foundations of the Islamic Republic and the place of Shia Islam in Iran;

   b)   The Authority held that a finding that red lines were crossed was more likely to, but would not exclusively, arise where the journalist or blogger was high profile;

   c)   The Authority found (at paragraph 41 of its decision) that the Applicant had shared information on Facebook calling for regime change.

   6.   Despite the foregoing, the Authority was not satisfied that the material posted by the Applicant on Facebook crossed red lines.  However, it concerned regime change and was broadly similar to, if not exactly the same as, matters identified by the Authority as crossing red lines.  Further, the matters identified by the Authority as crossing red lines were not an exhaustive list.  Lastly, on the Authority’s own reasoning, it was not conclusive that the Applicant was not high profile.  In short, there was no basis for the Authority’s finding that the material did not cross red lines.

   7.   The application should be allowed with costs.

Submissions on behalf of the First Respondent

1. Submissions were filed on behalf of the First Respondent on 8^th July 2019, which provided as follows:

   1. The Applicant seeks judicial review of a decision of the Immigration Assessment Authority (IAA), dated 14 December 2018 (CB 215 to 234), by which it affirmed a decision by a delegate of the First Respondent (Delegate), dated 2 May 2018, to refuse to grant the Applicant a Safe Haven Enterprise Visa (SHEV) under s 65 of the Migration Act 1958 (Cth) (Act) (CB 3 to 15).

   2.   These submissions are filed in accordance with the Orders made by this Court on 12 March 2019.  The Orders also required that the Applicant file and serve any affidavit containing additional evidence relied upon and any amended application by 7 May 2019 and the Applicant's outline of submissions by 26 June 2019.  On 31 May 2019, the Applicant filed an amended application (amended application). The Applicant's outline of submissions were filed on 1 July 2019.

   3.   These submissions respond to the amended application.     

   4.   The Minister submits that the Application does not establish jurisdictional error and for the reasons that follow, the Application ought to be dismissed with costs. 

   Background

   5.   The Applicant, Mohammad Mehdi Haseli, is an Iranian national. He was born on 10 April 1989. He arrived in Australia on 4 July 2013 (CB 4).

   6.   On 14 July 2017, the Applicant applied for a SHEV (CB 4).  On 20 April 2018, the Applicant attended an interview with the Department to discuss his claims (CB 7). 

   7. On 2 May 2018, a delegate of the Minister for Immigration and Border protection refused the Applicant's application for a SHEV on the basis that the Applicant was not a person in respect of whom Australia has protection obligations in accordance with s 36(2)(a) or 36(2)(aa) of the Act (CB 15).

   8.   On 2 May 2018, the Department wrote to the Applicant to notify him that his SHEV application had been referred to the IAA for consideration (CB 8). On 28 May 2018, the Applicant's representative provided written submissions to the IAA (CB 12).

   9. On 14 December 2018, the IAA affirmed the decision not to grant the referred applicant a protection visa, on the basis that the Applicant was not a person in respect of whom Australia has protection obligations in accordance with s 36(2)(a) or 36(2)(aa) of the Act (CB 215 to 234).

   …

   Consideration

   Ground 1

   11. The Applicant asserts that the Tribunal fell into jurisdictional error from paragraph 33 of its decision, by not observing a caution identified by the Full Federal Court in MZZJO v Minister for Immigration and Border Protection (2014) 239 FCR 436 at [56] (MZZJO).

   12. In MZZJO, the Full Court dismissed an appeal in which adverse credibility findings made by the Refugee Review Tribunal (RRT) were subject to challenge. The Full Court determined that the primary judge had not erred when it found that there was no jurisdictional error, in circumstances where the RRT had relied on omissions in the arrival interview among other things, to reject the appellant's claims. However, in obiter,  North, Bromberg and Mortimer JJ observed at [56],:

   … some caution should be exercised by decision-makers in relation to omissions by applicants of matters at entry interview. They are conducted shortly after a person has arrived in Australia; in the case of the appellant, after a long journey on the ocean in cramped and difficult conditions. On the evidence, a significant part of the entry interview content concerns questions designed to elicit information about so-called “people smuggling”. They are the first substantive and formal engagement with Australian officials by people who come, as the appellant does, from regimes where authority figures may be viewed with some fear and mistrust. A person is asked to articulate personal matters of family and individual history not only to a strange official, but also to an interpreter who is a stranger, without the assistance and support of a lawyer or migration agent. It is unlikely many interviewees appreciate the use to which the information they give might be put, notwithstanding the script which is read to them. The interviewees are being asked to digest a lot of information quickly and in circumstances they may perceive as hostile.

   13. Their Honours continued, at [57] and held:

   Had the Tribunal relied only on a failure to mention details at the entry interview, we may have been inclined to see this as involving a misunderstanding of its task on review. However, the Tribunal relied on inconsistencies arising from information presented by the appellant after the entry interview as well, including inconsistencies between the delegate interview and what he said to the Tribunal, and the somewhat inexplicable reluctance of the appellant to have his childhood friend, who arrived on the same boat, give evidence to corroborate aspects of his account. We consider its approach was open to it as a merits decision-maker, and the Federal Circuit Court was correct to so find.

   [Emphasis added]

   14. The First Respondent contends that ultimately the Authority found the Applicant's reasons for leaving Iran unconvincing and that there were a number of inconsistencies in his evidence presented at different times (at [29]). In particular, the Authority considered:  

   The Applicant's written statement dated 18 April 2017 (at [24] and [30]);

   The SHEV interview (which referenced the entry interview) (at [25] and [31]);

   The Applicant's submission to the IAA dated 28 May 2018 (at [35]).

   15. The First Respondent notes the following findings made by the Authority in relation to inconsistencies in the Applicant's evidence relating to events in Iran:

   a.   the Applicant's protection claims raised in his entry interview (that he was harassed by the police in respect of his appearance; that there were no freedoms in Iran; that for two years he could not have a girlfriend; and that nothing would happen to him if he returned to Iran) differed to the protection claims made to the delegate during the SHEV interview (particularly in relation to summons allegedly issued on the Applicant because of his relationship with "N"; that he was violently bashed by members of the Basij; and that images and videos of him and N were released online by members of the Basij) (at [32] to [34]);

   b.   the Applicant's assertion in the IAA submission, that he was told to say certain information in the entry interview was inconsistent with information provided by the Applicant during the entry interview that the only thing he was told to say was by the people smuggler who told him to give the smuggler's true name to Australian authorities (at [36]);

   c.    the Applicant's claim in the entry interview that he did not have a girlfriend for two years was not supportive of his claim in the SHEV interview that N was his fiancée, that they were planning to marry and that they had been together since 2009 (at [37]);

   d.   the Applicant's claims in the SHEV interview that he obtained his Iranian passport "maybe one year" before he departed Iran was inconsistent with his claims in the entry interview that he obtained it "about 10 to 15 days" before he left Iran (at [37]); 

   e.    the Applicant's claim in his SHEV application that he departed Iran as a result of events that occurred in around March 2013 was not supported by his evidence in the entry interview that he first made arrangements to leave Iran in 2012 (at [37]); and

   f.     the Applicant's claim in his statement dated 18 April 2017 that N was in Indonesia and 'under UNHCR consideration' was not supportive of his later claim in the SHEV interview that he last spoke to N in 2014, that he lost contact with her on Facebook and that he does not know where she is (at [37]).

   16. The First Respondent submits that the Authority considered these inconsistencies cumulatively and was not persuaded by the Applicant's explanations for the inconsistencies (at [38]). Accordingly, the First Respondent submits that the Authority did not solely rely on claims raised during the entry interview in rejecting the Applicant's claims and cannot be seen to have erred in the way identified in MZZJO.

   17. Further, in BIR17 v Minister for Immigration and Border Protection [2019] FCA 850, Charlesworth J, considering the remarks concerning the caution identified in MZZJO noted (at [45]):

   The obiter remarks of the Court in MZZJO are concerned with matters that may affect the relative weight that might be afforded inconsistencies or omissions founded on things said or not said by a visa applicant at an arrival interview. Read in the context of what is said at [57], the Court in MZZJO should be understood at [56] to be cautioning a decision-maker against rejecting outright a person’s claim to be a refugee by reference solely to omissions or inconsistencies arising from arrival interviews in fact having features mentioned in that paragraph.  In such a case, the existence of the factors may result in the arrival interview affording no proper evidentiary foundation for a conclusion that past events did not occur as the visa applicant claimed.  The Court did not posit a rule to be applied in every case.  In all cases, the weight that may be rationally (that is, lawfully) afforded omissions or inconsistencies identified by reference to an arrival interview must be considered in the context of the individual case.  The circumstances may be such as to wholly explain an omission so that no weight may be afforded the omission at all in any assessment of a visa applicant’s credit.  Whether or not factors of the kind to which the Court referred exist, and whether or not they explain an omission, is for the Tribunal to decide, within the bounds of legal reasonableness and in accordance with the rules of procedural fairness, to the extent that they apply.

   18. The First Respondent submits that the Authority did not outright reject the Applicant's claims to be owed protection based solely on inconsistencies or omissions in the entry interview. Accordingly, the First Respondent submits that ground one cannot be made out.

   19. The First Respondent further notes that findings of adverse credibility, where such findings are reasonably open on the evidence before it, are properly the function of the decision-maker and generally not susceptible to judicial review by the Court: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 423 [67].

   Ground 2

   20. By ground 2, the Applicant asserts that the IAA erred in finding at [44] of its decision that the Applicant had not crossed any "red lines" and that this conclusion was legally unreasonable because there was no evidence and intelligible justification for the conclusion. To support this proposition the Applicant relies on: Minister for Immigration and Border Protection v SZFVW [2018] HCA 30 at [10] per Kiefel CJ and at [82] per Nettle and Gordon JJ (SZFVW).

   21. The First Respondent submits that their Honours in SZFVW did not advance the principles of legal unreasonableness advanced by French CJ and Gageler J in MIBP v Li (2013) 249 CLR 332 (Li) when assessing the "reasonableness" of an exercise of discretion:

   [10] In the joint judgment in Minister for Immigration and Citizenship v Li it was explained that a decision made in the exercise of a statutory power is unreasonable in a legal sense when it lacks an evident and intelligible justification.  That may be so where a decision is one which no reasonable person could have arrived at, although an inference of unreasonableness is not to be drawn only where a decision appears to be irrational.  None of these descriptions could be applied to the Tribunal's decision in the present case.

   …

   [82] Nor is the abuse of statutory power limited to a decision which may be described as "manifestly unreasonable", or to what might be described as an irrational, if not bizarre, decision that is so unreasonable that no reasonable person could have arrived at it.  A conclusion of legal unreasonableness may be outcome focused – where, for instance, there is no "evident and intelligible justification" for the decision.  As Gageler J explained in Minister for Immigration and Citizenship v Li, "[r]eview by a court of the reasonableness of a decision made by another repository of power 'is concerned mostly with the existence of justification, transparency and intelligibility within the decision‑making process' but also with 'whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law'".

   22. The First Respondent submits that there are two difficulties with this ground.  Firstly, legal reasonableness in the sense described in Li is concerned with the exercise of discretionary powers, not the making of factual findings. Secondly, in this matter, it was reasonably open, on the evidence available to the Authority, in relation to the material posted to the Applicant's Facebook page, to make the impugned findings and to conclude that in the circumstances of this case that the material did not cross "red lines".

   23. The material allegedly posted to Facebook by the Applicant includes material which communicates a message of support for changing the governmental regime in Iran (see: CB 196). However, the First Respondent notes that:

   a.   the material was posted to a Facebook page which displayed a different first name to that of the Applicant;

   b.   the Applicant was not posting material as a journalist or as part of a media organisation; and

   c.    the Applicant was posting material in a personal capacity.

   24. The First Respondent notes that the country information considered by the IAA related to journalists and media organisations and that the Applicant did not purport to be a journalist (at [43]). In particular, the Authority relied on a “DFAT Country Information Report – Iran”, dated 21 April 2016, which assessed that the more high profile a journalist or blogger is, the more likely that they will become the subject to adverse attention if the material they publish crosses red lines.

   25. The First Respondent contends that the reference to "red lines" incorporates both subject matter and identity (i.e. a media organisation or a blogger will cross a red line if their posts do not include respect for the Supreme Leader, the constitutional and territorial foundations of the Islamic Republic and the place of Shia Islam in Iran). The Applicant did not claim to be a journalist or a blogger, and the First Respondent contends that it was open to the IAA to find that the subject matter posted by the Applicant did not cross any "red lines".

   26. The Applicant's submissions to this ground refer to the Authority's treatment of the material posted by the Applicant on Facebook, calling for a regime change.

   27. The First Respondent submits that ground 2 cannot be made out.

   Conclusion

   28. The application does not identify any jurisdictional error, and should therefore be dismissed with an order that the Applicant pay the First Respondent's costs in the amount of $7,467, pursuant to rule 44.15(1) and Item 3 of Schedule 1, Part 3, Division 1 of the Federal Circuit Court Rules 2001 (Cth), or such amount as may be fixed by the Court.

Supplementary submissions on behalf of the First Respondent

1. Pursuant to Order 1 of the Orders dated 10^th July 2019, the First Respondent filed supplementary written submissions addressing a recent judgment by the Full Court of the Federal Court of Australia.[4]  Those submissions, filed on 24^th July 2019, were as follows (footnotes omitted):

   1.    The Court has requested submissions, of no longer than a single page, addressing the applicability of AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133 (AVQ15) in the present proceeding. These submissions are to be read in conjunction with the First Respondent's Outline of Submissions filed 8 July 2019.

   2.   In AVQ15, the Full Court found that the Refugee Review Tribunal (Tribunal) fell into error when it had overlooked significant information which may have shed a different light on its finding of inconsistency in the Appellant's evidence (which underpinned the Tribunal's assessment of the Applicant's credibility), being information provided during an interview.

   3.   The present proceeding can be distinguished from the decision of AVQ15 in circumstances where the First Respondent contends that the Immigration Assessment Authority (Authority) considered the Applicant's claims and inconsistencies cumulatively and ultimately, was not persuaded by the Applicant's explanations. All relevant information was considered.

   4.   The First Respondent contends that AVQ15 is relevant to the current proceeding insofar as the Full Court considered that "[c]onsiderable caution must be exercised before concluding that errors in an adverse credibility assessment result in the decision being affected by jurisdictional error, in order to avoid judicial review transgressing into the impermissible area of merits review." The First Respondent contends that such caution should be taken by this Court.

   5.   The First Respondent contends that extreme illogicality is required to establish jurisdictional error in credibility fin dings and that the Applicant has not established extreme illogicality in the Authority's decision.

   [4] The Applicant was afforded the same opportunity but declined to provide any further submissions in relation to the Full Court’s decision in AVQ15 v Minister for Immigration and Border Protection.

Consideration and disposition

1. In relation to Ground 1, I note the following.

2. Although the parties have set out the relevant text from the Full Court’s decision in MZZJO relied upon by the Applicant, it is convenient to set it out here.[5]  It is important to have regard to the wider context of the Full Court’s decision.  Thus, at [55] – [57], the Full Court said (emphasis added):

   [55] We agree with the Federal Circuit Court that the Tribunal’s conclusions were “well open to it” in the sense of being findings about the credibility of the account given by the appellant. They were based only in part on the Tribunal’s questioning of the appellant about agnosticism. They were also based on inconsistencies the Tribunal identified between the appellant’s various accounts of what had happened to him, and about his failure to mention certain matters at his entry interview.

   [56] On the latter issue, some caution should be exercised by decision-makers in relation to omissions by applicants of matters at entry interview. They are conducted shortly after a person has arrived in Australia; in the case of the appellant, after a long journey on the ocean in cramped and difficult conditions. On the evidence, a significant part of the entry interview content concerns questions designed to elicit information about so-called “people smuggling”. They are the first substantive and formal engagement with Australian officials by people who come, as the appellant does, from regimes where authority figures may be viewed with some fear and mistrust. A person is asked to articulate personal matters of family and individual history not only to a strange official, but also to an interpreter who is a stranger, without the assistance and support of a lawyer or migration agent. It is unlikely many interviewees appreciate the use to which the information they give might be put, notwithstanding the script which is read to them. The interviewees are being asked to digest a lot of information quickly and in circumstances they may perceive as hostile.

   [57] Had the Tribunal relied only on a failure to mention details at the entry interview, we may have been inclined to see this as involving a misunderstanding of its task on review. However, the Tribunal relied on inconsistencies arising from information presented by the appellant after the entry interview as well, including inconsistencies between the delegate interview and what he said to the Tribunal, and the somewhat inexplicable reluctance of the appellant to have his childhood friend, who arrived on the same boat, give evidence to corroborate aspects of his account. We consider its approach was open to it as a merits decision-maker, and the Federal Circuit Court was correct to so find.

   [5] MZZJO v Minister for Immigration and Border Protection (2014) 239 FCR 436.

3. The comments by the Full Court, in the wider context, are critical.  Just as the Full Court in MZZJO referred to a range of other matters considered by the Tribunal (e.g. issues of credibility, inconsistencies in evidence), which led to its decision in that case, just so here.  It was not only the discrepancies indicated by the IAA between what the Applicant did or did not say at his SHEV interview.  A fair reading of its reasons confirm that there were multiple other grounds upon which it founded its decision.  This included that the Applicant had fabricated the majority of his claims, the lack of credibility of the Applicant’s evidence regarding, for example, the contention that he and his girlfriend had been assaulted by the Basij, its adverse findings regarding the Applicant’s claims regarding alleged risks from his social media postings, and his alleged political activism.

4. Put another way, perhaps somewhat colloquially, the IAA did not “cherry-pick” or rely substantively, and certainly not solely, on discrepancies between the Applicant’s evidence before it compared to what he said in his SHEV interview.  Its decision was based on a much wider range of considerations and findings.

5. Further, as the First Respondent said in submissions, the comments by Charlesworth J in BIR17 v Minister for Immigration and Border Protection at [45], need to be kept in mind. For ease of reference I repeat them here:[6]

   The obiter remarks of the Court in MZZJO are concerned with matters that may affect the relative weight that might be afforded inconsistencies or omissions founded on things said or not said by a visa applicant at an arrival interview. Read in the context of what is said at [57], the Court in MZZJO should be understood at [56] to be cautioning a decision-maker against rejecting outright a person’s claim to be a refugee by reference solely to omissions or inconsistencies arising from arrival interviews in fact having features mentioned in that paragraph.  In such a case, the existence of the factors may result in the arrival interview affording no proper evidentiary foundation for a conclusion that past events did not occur as the visa applicant claimed.  The Court did not posit a rule to be applied in every case.  In all cases, the weight that may be rationally (that is, lawfully) afforded omissions or inconsistencies identified by reference to an arrival interview must be considered in the context of the individual case.  The circumstances may be such as to wholly explain an omission so that no weight may be afforded the omission at all in any assessment of a visa applicant’s credit.  Whether or not factors of the kind to which the Court referred exist, and whether or not they explain an omission, is for the Tribunal to decide, within the bounds of legal reasonableness and in accordance with the rules of procedural fairness, to the extent that they apply.

   [6] BIR17 v Minister for Immigration and Border Protection [2019] FCA 850.

6. In addition to the above, I otherwise accept the First Respondent’s submissions.  Accordingly, the first Ground of Review is not made out.

7. In relation to the second Ground of Review, I note the following.

8. In Minister for Immigration and Border Protection v SZVFW, there are a number of principles and comments articulated by reference to the earlier High Court decision in Li.[7]

   [7] Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.

9. First, in SZVFW, at [10] Kiefel CJ said (internal citations omitted):

   In the joint judgment in Minister for Immigration and Citizenship v Li it was explained that a decision made in the exercise of a statutory power is unreasonable in a legal sense when it lacks an evident and intelligible justification. That may be so where a decision is one which no reasonable person could have arrived at, although an inference of unreasonableness is not to be drawn only where a decision appears to be irrational. None of these descriptions could be applied to the Tribunal's decision in the present case.

10. To similar effect, but slightly expanded, were comments by Gageler J, at [59] – [60] (internal citations omitted):

    [59] References in Stretton to a conclusion that a decision is legally unreasonable being "evaluative" and to the task being "not definitional, but one of characterisation" were usefully directed to emphasising that determination of whether a purported exercise of a statutory power is so unreasonable that no reasonable repository of the power could have so exercised the power is informed not only by "the terms, scope and policy of the statute" but also by "fundamental values" anchored in the common law tradition. Reasonableness is itself a traditional conception of the common law – a translation of "the human into the legal". Reasonableness is not exhausted by rationality; it is inherently sensitive to context; it cannot be reduced to a formulary. In the discernment of unreasonableness, "[t]here are no talismanic words that can avoid the process of judgment".

    [60] Of present importance is that those references in Stretton were not directed to denying the character of a judicial determination of legal unreasonableness as a determination "as to whether the decision bespeaks an exercise of power beyond its source". That question does not admit of a range of legally permissible outcomes. Stretton recognised that, "[w]hile judicial decision about that question might be contestable, there can only, legally, be one correct answer", from which it followed that "[t]he proper framework" for an appeal by way of rehearing from a conclusion of a primary judge that an administrative decision-maker exceeded decision-making authority by making an unreasonable decision was "not ... the review of the exercise of a judicial discretion or of an evaluative judgment of like character". In so doing, Stretton foreshadowed the resolution of the principal question in the present appeal.

11. For completeness, it is as well to record the detailed analysis by and comments of Nettle and Gordon JJ at [80] – [84] (internal citations omitted; emphasis in original text):

    [80] Parliament is taken to intend that a statutory power will be exercised reasonably by a decision-maker. The question with which the legal standard of reasonableness is concerned is whether, in relation to the particular decision in issue, the statutory power, properly construed, has been abused by the decision-maker or, put in different terms, the decision is beyond power. That question is critical to an understanding of the task for a court on review.

    [81] How that abuse of statutory power manifests itself is not closed or limited by particular categories of conduct, process or outcome. The abuse of statutory power is not limited to a decision affected by specific errors which bring about an improper exercise of power because, for example, the decision-maker took into account an irrelevant consideration or failed to take into account a relevant consideration; or exercised the power in bad faith, or for a purpose other than a purpose for which it was conferred; or exercised the power in such a way that the result of the exercise of power is uncertain.

    [82] Nor is the abuse of statutory power limited to a decision which may be described as "manifestly unreasonable", or to what might be described as an irrational, if not bizarre, decision that is so unreasonable that no reasonable person could have arrived at it. A conclusion of legal unreasonableness may be outcome focused – where, for instance, there is no "evident and intelligible justification" for the decision. As Gageler J explained in Minister for Immigration and Citizenship v Li, "[r]eview by a court of the reasonableness of a decision made by another repository of power 'is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process' but also with 'whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law'".

    [83] Indeed, grievous error may result if a court on review had to identify a particular error to found its conclusion of unreasonableness. If the court approached the assessment in this way, at least one important part of the lens for assessing legal unreasonableness would be removed: namely, error identified by observing that the result is so unreasonable that it could not have been reached if proper reasoning had been applied in the exercise of the statutory power in the particular circumstances. In that situation, the court is not undertaking merits review of an exercise of a discretionary power by a decision-maker. Rather, the court is asking whether the decision-maker's purported exercise of power was beyond power because it was legally unreasonable.

    [84] Moreover, legal unreasonableness is invariably fact dependent and requires a careful evaluation of the evidence. That is, assessment of whether a decision was beyond power because it was legally unreasonable depends on the application of the relevant principles to the particular factual circumstances of the case, rather than by way of an analysis of factual similarities or differences between individual cases. Where reasons are provided, they will be a focal point for that assessment. It would be a rare case to find that the exercise of a discretionary power was unreasonable where the reasons demonstrated a justification for that exercise of power.

12. For my part, I draw particular attention to, and place significant emphasis upon, [84] of the joint reasons of Nettle and Gordon JJ in SZVFW as being particularly relevant to the present matter.  However, before more detailed consideration of the matter before this Court, I need to note some other comments by the High Court in SZVFW.

13. Accepting that SZVFW was concerned with a different section of the Act to that which is relevant to the current proceeding under Part 7AA of the Act, it is apposite to note the following further comments from the joint reasons of Nettle and Gordon JJ at [97] (internal citations omitted; emphasis added):

    The discretion in s.426A recognises that the exercise of the discretion in a given case will be affected by the subject matter of the particular review, the course the review has taken, the Tribunal's approach throughout the review, the applicant's situation and conduct throughout the review and the other surrounding circumstances. That is, there is an area within which the decision-maker has a genuinely free discretion which resides within the bounds of legal reasonableness.

14. As noted earlier in these reasons, in its decision, the IAA relevantly took account of:

    a)The Applicant’s social media posts were under a pseudonym, which was in no way related to his name;

    b)Country information before the IAA confirmed that there was a degree of tolerance towards criticism of the Iranian regime;

    c)More concern was expressed and possible action taken in Iran if the criticism came from a journalist and a blogger.  Neither of these situations applied to the Applicant;

    d)The IAA identified, by reference to country information (par.43), what relevantly constituted likely or usual “red lines” across which it was dangerous for criticism to cross. 

15. In my view, the matters highlighted and discussed by the IAA, readily and reasonably come within what Nettle and Gordon JJ identified at[84] and [97] in SZVFW.  As such, having regard to the totality of the evidence, and the IAA’s consideration of it, I do not see there is any basis for complaint by the Applicant as alleged by him.  It follows that no jurisdictional error has been established by the Applicant.

Conclusion

1. In the light of the reasons given, the Amended Application, filed 31^st May 2019, must be dismissed.  There must follow an Order for costs in the First Respondent’s favour in accordance with Schedule 1 Part 3 of this Court’s Rules.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Judge Neville

Associate: 

Date:  27 February 2020