ANE22 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 67
Federal Circuit and Family Court of Australia
(DIVISION 2)
ANE22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 67
File number: PEG 28 of 2022 Judgment of: JUDGE KENDALL Date of judgment: 9 February 2023 Catchwords: MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – whether the Tribunal failed to take into account evidence provided by or on behalf of the applicant – whether the Tribunal failed to afford the applicant natural justice – whether the Tribunal failed to consider that by seeking treatment for the applicant’s mental health issues in Iran, the applicant would “bring his religious beliefs to light” – whether the Tribunal erred in its assessment of the country information before it – whether the Tribunal failed to take into account the applicant’s non-attendance at his father’s funeral in Iran – whether the Tribunal failed to consider the applicant’s mental health issues as a reason for his delay in commencing to practice his faith in Australia – whether this Court can consider new country information provided by the applicant – whether the Tribunal’s decision is “illogical” or “irrational” – whether the applicant’s representative failed to provide adequate assistance – Ministerial intervention – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 36, 91R, 91S, 417, 422B, 425, 425A, 476 and Division 4 of Part 7
Migration Regulations 1994 (Cth), Schedule 2
Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593
Craig v State of South Australia (1995) 184 CLR 163
DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
EGW17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1177
GLX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 9
Gupta v Minister for Immigration [2016] FCA 1004
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZKRT [2013] FCA 317
Minister for Immigration & Citizenship v SZMDS [2010] HCA 16
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 [2022] FCAFC 12
Minister for Immigration & Border Protection v Singh [2014] FCAFC 1
MZXHY v Minister for Immigration [2007] FCA 622
Nahi v Minister for Immigration & Multicultural & Indigenous Affairs [2014] FCAFC 10
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2002) 168 ALR 407
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24
Selvadurai v Minister for Immigration & Ethnic Affairs (1994) 34 ALD 347
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152
SZJMG v Minister for Immigration & Citizenship [2008] FCA 1145
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Thuraisamy v Minister for Immigration and Multicultural Affairs [1999] FCA 1632
WZATI v Minister for Immigration & Border Protection [2015] FCA 923
Division: Division 2 General Federal Law Number of paragraphs: 151 Date of hearing: 30 January 2023 Place: Perth Applicant: The applicant appeared in person Counsel for the First Respondent: Ms B Rayment (via video link) Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
PEG 28 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ANE22
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE KENDALL
DATE OF ORDER:
9 FEBRUARY 2023
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE KENDALL:
Background
The applicant is a citizen of Iran (Court Book (“CB”) 13-15). He arrived in Australia in July 2008 as the holder of a student visa (CB 117 & 152). He subsequently held further student visas and bridging visas until 19 June 2013 (when he was granted a temporary graduate visa) (CB 153).
On 21 January 2014, the applicant applied for a Protection (Class XA) (Subclass 866) visa (the “visa”) (CB 2-50) with the assistance of a migration lawyer (the “first representative”) (CB 1). With that application, the applicant provided submissions (prepared by his first representative) (CB 51-64), a statutory declaration (CB 65-71) and various identity documents (CB 72-77). In his application, the applicant claimed to fear harm in Iran on the basis of his Dervish faith (CB 53 & 65-70).
On 3 February 2014, the then Department of Immigration and Border Protection (the “Department”) asked the applicant to provide additional information in relation to his visa application (CB 78-86).
On 17 March 2014, the applicant’s first representative provided the Department with an Australian Federal Police Certificate for the applicant (CB 87-88).
On 7 November 2014, the Department invited the applicant to attend an interview on 4 December 2014 with a delegate of the first respondent (the “Minister”) (CB 89-90).
On 18 November 2014, the Department advised the applicant (through his first representative) that the interview had been postponed (CB 97).
On 2 September 2015, the Department invited the applicant (through his first representative) to attend an interview on 6 October 2015 (CB 104-107).
On 9 September 2015, the applicant’s first representative provided further written submissions to the Department (CB 117-127) via email (CB 113-116).
On 28 September 2015, the Department notified the applicant (through his first representative) that the interview with a delegate of the Minister had been rescheduled to 8 October 2015 (CB 128-129).
On 8 October 2015, the applicant attended a protection visa interview with a delegate of the Minister (CB 153).
On 13 October 2015 and 16 October 2015, the applicant’s representative emailed the Department further material in support of the applicant’s visa application (CB 130-135) and English translations of those documents (CB 136-140).
On 25 May 2017, a delegate of the Minister refused to grant the applicant the visa (CB 152-165). The delegate determined that, on the basis of the timing of lodgement of his protection visa application and because of contradictory evidence given, the applicant may have been motivated to lodge his visa application for “reasons other than those relating to a real concern for his safety” (CB 160-161).
On 16 June 2017, the applicant applied to the Administrative Appeals Tribunal (the “Tribunal”) for review of the delegate’s decision (CB 166-172).
On 11 July 2018, the applicant appointed a new lawyer to represent him in relation to his review application (the “representative”) (CB 176-177).
On 2 December 2020, the Tribunal invited the applicant (through his representative) to attend a hearing before it scheduled for 18 December 2020 at 11.00am (WA time) (CB 178-184).
On 3 December 2020, the applicant’s representative sought a postponement of the hearing and additional time to file materials because the representative was overseas and would be unable to adequately prepare submissions on the applicant’s behalf (CB 186-189).
On 9 December 2020, the Tribunal agreed to adjust the date and time of the hearing before it (to 17 December 2020 at 4.00pm (WA time)) to allow the applicant’s representative to appear via telephone at a suitable time whilst overseas. The Tribunal also gave the applicant more time (to 14 December 2020) to file submissions and further materials (CB 190-194).
On 14 December 2020, the applicant’s representative provided written submissions and supporting evidence to the Tribunal (via email) ahead of the hearing (CB 195-283).
On 17 December 2020, the applicant attended a hearing before the Tribunal. He was assisted by his representative (who appeared via telephone from overseas). The hearing ran for 48 minutes and was ultimately adjourned to allow the applicant’s representative time to return to Australia (CB 284-286).
On 25 February 2021, the Tribunal invited the applicant (via email, through his representative) to attend a resumed hearing before it on 16 March 2021 (CB 287-291).
On 15 March 2021, the applicant’s representative sought a postponement of the hearing (via email) due to the applicant’s health issues (CB 297-298). The applicant’s representative asked that the hearing be scheduled to a date after 8 April 2021 (CB 297). Attached to that email was supporting medical evidence (CB 299-300).
Later that day (also on 15 March 2021), the Tribunal refused to postpone the hearing because of “the lateness of the request and the extended delay which has been requested” (CB 301-303).
The applicant did not attend the Tribunal hearing on 16 March 2021. The applicant’s representative did attend, however, and an “administrative discussion occurred” between the Tribunal member and the representative (CB 304-306).
On 6 April 2021, the Tribunal invited the applicant (via email, through his representative) to attend a further resumed hearing before it on 23 April 2021 (CB 307-311).
On 23 April 2021, the applicant attended the further resumed hearing at the Tribunal. He was assisted at that hearing by his representative (CB 317-320). The applicant was given 14 days following that hearing within which to provide further written materials (CB 319).
On 7 May 2021, the applicant’s representative advised the Tribunal (via email) “that no additional evidence or material [would] be provided” (CB 321).
On 21 January 2022, the Tribunal affirmed the delegate’s decision refusing to grant the applicant the visa (CB 325-354).
On 22 February 2022, the applicant lodged an application for judicial review in this Court. The applicant seeks review of the Tribunal’s decision pursuant to s 476 of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error.
The Tribunal’s decision
The Tribunal’s decision is 30 pages long and spans 162 paragraphs.
The Tribunal began by detailing the application under review and setting out the applicant’s background and visa history. In particular, the Tribunal noted that the applicant had held a number of student visas and a temporary graduate visa (valid until December 2014) before applying for the protection visa on 21 January 2014 (which was refused on 25 May 2017) (at [1]-[6]).
The Tribunal then acknowledged that the criteria for the grant of a protection visa are set out in s 36 of the Act and identified that the issue in this matter was whether the applicant had a “well-founded fear of persecution in Iran” on the basis that he was a member of the Nematollahi Gonabadi Dervish Order (“NGDO”)/Dervish faith or “whether complementary protection provisions otherwise appl[ied]” (at [7]-[8]).
The Tribunal explained that the applicant’s protection claims were set out in a statutory declaration which accompanied his protection visa application and that the applicant essentially “claimed to fear persecution in Iran on the grounds of his NGDO/Dervish religion”. Further, as the Tribunal noted, the applicant had confirmed that that was an accurate summary of his claims at the Tribunal hearing and did not seek to raise any additional claims (at [10]-[11]).
The Tribunal then detailed the evidence that the applicant had provided to the Department (at [12]-[13]) and provided a summary of the delegate’s decision made on 25 May 2017 (refusing to grant the applicant the visa). That summary included an overview of the delegate’s concerns with inconsistencies in the applicant’s evidence and credibility concerns highlighted by the delegate in their decision (at [14]-[23]).
The Tribunal confirmed that the applicant had sought review of the delegate’s decision on 16 June 2017 and provided details of the Tribunal hearings (both scheduled and those attended) and requests for some of those hearings to be rescheduled (at [24]-[34]).
The Tribunal then set out the information provided to the Department and the Tribunal in support of the applicant’s visa application (at [35]-[38]) and detailed the applicant’s oral evidence given at the Tribunal hearings (at [39]-[63]). The Tribunal also summarised the written submissions provided by the applicant’s representative in support of the applicant’s protection visa application (at [64]-[70]).
The Tribunal then detailed the criteria for the grant of a protection visa, as set out in s 36 of the Act and Schedule 2 of the Migration Regulations 1994 (Cth), and Australia’s obligations under the Refugees Convention (at [71]-[73]). The Tribunal explained that ss 91R and 91S of the Act qualify some aspects of the Convention and explained the four key elements to the Convention definition of a refugee (at [74]-[80]).
The Tribunal also explained as follows:
81.Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
The Tribunal then summarised the requirements of the complementary protection criterion in s 36(2)(aa) of the Act and confirmed that, as provided by Ministerial Direction No. 84, it had had regard to the ‘Refugee Law Guidelines’, ‘Complementary Protection Guidelines’ and country information prepared by the Department of Foreign Affairs and Trade (“DFAT”) (at [82]-[85]).
The Tribunal explained further that its fact-finding task “may involve an assessment of an applicant’s credibility” and explained the Tribunal’s obligations in this regard (at [86]-[88]).
The Tribunal noted that the delegate “had no concerns” about the applicant’s claimed identity and found that the applicant was a citizen of Iran (which the Tribunal found was also his receiving country) (at [89]-[90]). The Tribunal then detailed the applicant’s immigration history (from his arrival in Australia in July 2008 to the lodgement of his protection visa application on 21 January 2014) and noted that the applicant had confirmed that that summary was “fair” (at [91]-[92]).
The Tribunal explained that it had discussed country information with the applicant relating to the NGDO/Dervish followers in Iran, including information contained in the DFAT Country Information Report on Iran dated 14 April 2020 (noting that the relevant section of that report was also provided by the applicant to the Tribunal) (at [94]-[104]).
The Tribunal went on to consider the applicant’s claims, both individually and cumulatively (at [106]), and noted as follows:
108.The Tribunal has significant concerns about the credibility of the applicant's claims. There were inconsistencies in aspects of his core claims in relation to events which occurred in Iran including with respect to his engagement with Dervishism and the Iranian authorities. Further, with respect to aspects of his claims he struggled to provide meaningful detail and context and failed to provide any corroborative evidence regarding his own circumstances and practice.
The Tribunal explained that it had provided the applicant with an “opportunity to comment on or clarify apparently inconsistent statements and to provide corroborating evidence”, particularly in relation to his “claimed engagement with Dervish groups in Australia. However, no such corroborating evidence was provided and no reasonable explanation was given by the applicant for the failure to do so (at [109]).
The Tribunal continued:
111.However, the Tribunal found the inconsistencies or vague evidence including in relation to key events relating to the claims could not be explained merely by the passage of time, poor recollection or the applicant's mental health issues as described in the material available to the Tribunal.
112.Further, in the Tribunal’s view, the applicant’s conduct in Australia contributes to doubts regarding his credibility and claims for protection. This includes the delay in seeking protection until 6 years after his arrival in Australia, the delay in his claimed engagement with the Dervish community in Australia and the lack of any corroborating evidence with respect to that engagement. These issues are considered further below.
The Tribunal accepted that the applicant was “a practising Shia Muslim” but did not accept that he was a member of the “deviant sect of that faith” known as NGDO or Dervishism (at [115]). Further, the Tribunal did not accept that the applicant was “an active or practising member of the NGDO in Australia” or that he was “a practising member or follower … in Iran prior to coming to Australia”, citing a lack of corroborative evidence in that regard. The Tribunal noted further that it had asked the applicant about evidence from people he practiced with or leaders of the Dervish community (either in Iran or Australia) but the “applicant indicated that he did not have such evidence” (at [117]-[119]).
The Tribunal noted that, despite the applicant saying earlier that there was “no reason to believe that the authorities were aware of his engagement with Dervishism in Australia”, the applicant later claimed that he could not be sure and that the Iranian “government has spies everywhere and they can access information anywhere”. Further, the applicant (after referencing recent assassination of Iranians in Turkey) stated that “the question is whether you are worthy of being eliminated or not, not whether they can do it or not” (at [120]).
When asked by the Tribunal if the Iranian authorities had approached his family about his “activities”, the applicant said that his mother would not tell him even if they had but that his siblings in Iran had not been approached by anyone. Further, the Tribunal noted that the applicant’s representative advised the Tribunal that “they had tried to find cooperative witnesses to corroborate his involvement with the Dervish community” but had been unable to do so (at [121]).
The Tribunal continued:
122.The applicant claimed the lack of evidence was due to concerns among community members that the Iranian authorities had spies among the Australian based Iranian community. He offered no evidence or country information to support this claim. Notwithstanding this, the Tribunal is prepared to accept that the Iranian authorities may have an organised intelligence regime with extraterritorial reach. However, the Tribunal did not accept this would be a reason for the failure to provide any evidence to corroborate his practice in Australia where he testified he was free to worship as he wished and where the evidence did not suggest he was of any interest to the Iranian authorities. In this regard the Tribunal notes the applicant confirmed he had been able to leave Iran on an Iranian issued passport without issue and had renewed that passport while in Australia and where he was not aware of any approached by the authorities to his family in Iran regarding any of his claimed activities in Australia. The Tribunal notes that in his statutory declaration in support of his application for protection dated 6 December 2013, the applicant stated that he couldn't tell his family about his Dervish faith because her feared they would disown him and ‘I do not want to bring to the authorities attention of my faith as this will not only put my life in danger but it will also put my families [sic] life in danger’. Before the Tribunal he said his family did not know about his activities in Ian because the government was ruthless and would murder family members. In the Tribunal's view this suggests a lack of any interest by the authorities in his family members and demonstrates a lack of interest in the applicant. Further, the Tribunal notes country information, including that cited by the delegate, which indicates that security organisations are present at Iranian airports and travel bans are used where there are security and other concerns.
The Tribunal considered that if Iranian intelligence operatives were significant enough to deter community members from providing evidence to the Tribunal (in closed proceedings), they would deter the advertisement of activities considered to be a threat to the regime (such as the NGDO). However, the Tribunal noted the applicant’s evidence that he had contacted Dervish community members in Australia through the internet and was provided with contacts of members in Perth. The Tribunal also noted the applicant’s evidence (in his statutory declaration accompanying his visa application) that there is a community of Dervish followers in Perth, as well as elders who teach and gatherings organised by an “event organiser”. The Tribunal considered that level of organisation was inconsistent with the applicant’s claim to be unable to provide corroborative evidence of his claimed practice in Australia due to “fears” amongst the community of Iranian authorities spying (at [123]).
The Tribunal also found elements of the applicant’s evidence in relation to his introduction to the Dervish faith and his level of engagement in Iran to be “inconsistent and contradictory”. The Tribunal noted that the applicant was unable to recall the name of the person who had introduced him or dates of initiation (which are “key points” in his “claimed faith journey”). Further, while the applicant initially claimed that there was no initiation or conversion process, when presented with contrary country information, the applicant later claimed that he was “initiated in Iran” but that he was not practising in Iran (at [124]-[125]).
The Tribunal also found the applicant’s evidence in relation to a claimed incident with police in 2006 to be inconsistent and contradictory. Further, the lapse in time (of approximately a year and a half) between the claimed incident and the applicant leaving Iran casted doubt over his claim that “persecution from the authorities was one of the reasons he left Iran and feared return” (at [127]). The Tribunal also determined that the delay in the applicant practising his faith in Australia was inconsistent with his claimed level of commitment to his faith (at [128]).
The Tribunal continued:
129.The Tribunal also raised a concern that his significant delay in seeking protection cast doubt on the genuineness of his claims to have been harmed in Iran due to his Dervish faith and to fear harm there on return for that reason. He said if he could have resolved the issues otherwise he would have because the process had destroyed his life and had caused problems like depression. When things didn't work the way he planned he was thrown in this situation He said he did his best to study and get his permanent residency through the graduate visa. He wasn't intending to seek protection. When he was out of Iran there was protection so he didn't need to apply for protection. He said that he didn't think there was any risk he wouldn't get additional student visas so he didn't have a fear of not getting another visa. The applicant applied for and obtained several visas in Australia after leaving Iran. None of those was a permanent visa yet it was not until 2014 that he applied for protection, raising a fear of harm on return. In particular the Tribunal notes the applicant was unable to point to any change in his circumstances or the circumstances in Iran which may explain the decision to delay seeking protection until a short time prior to his third student visa expiring. The Tribunal finds the first applicant's failure to apply for protection earlier or to raise any fear of returning to Iran during his initial 6 years in Australia is an indication that he was not fearful of serious or significant harm on return to Iran for the reasons claimed.
130.As noted earlier, the Tribunal was also concerned that there was no evidence to suggest the applicant had come to the attention of authorities due to being a member of the Dervish faith in Iran or Australia. With respect to his claimed arrest and interrogation in Iran, the Tribunal is concerned about inconsistencies in the evidence and submissions in relation to this event. The applicant claimed he was stopped because he had long hair and was suspected of being a member of NGDO. He claimed he was released because he was not a member of the NGDO at that time and his father vouched for this. It is not clear how this incident which occurred when the applicant claimed not to be a practising Dervish supported a claim that he was at risk for being a Dervish on return. The authorities released him on the basis that he was not a practicing Dervish, which it can be inferred is consistent with what he told them. He claims to have been identified because of his hair which the delegate's decision notes he claimed he kept short in Australia sue to work commitments This suggests he does not consider his hair length to be central to Dervish practice such as he might be likely to suffer such treatment again or that he would be forced to alter this characteristic to avoid persecution. In any event, though he claims to have suffered serious harm during this questioning he did not leave Iran until some year and a half later. He did not suffer any further adverse attention from authorities despite his claim to have visited the Hosseini and been inducted as a member of the faith sometime after his arrest by the authorities. Further, in submissions it was contended he had kept his hair short in Iran to conceal his NGDO faith, though he had also claimed to have been of interest because his hair, including (according to the delegate's decision) at the point at which he obtained his passport from authorities to leave Iran. It was difficult to reconcile these positions.
The Tribunal was prepared to accept that it was “plausible” that the applicant had been questioned by the authorities for his appearance “at some point in Iran”. However, noting that the applicant was not a practising Dervish at the time (and had faced no further adverse attention while in Iran or since leaving), the Tribunal did not accept that he was detained on the basis of his Dervish faith “or for any other reason which may place him at risk of harm on return to Iran” (at [131]).
The Tribunal noted that the applicant had not been approached by the authorities since the “claimed interrogation … in 2006”. Further, the applicant did not claim that he or any of his family members had been targeted since he left Iran and the Tribunal did not accept that they would be targeted in the future (at [132]).
While the Tribunal accepted that the applicant had been questioned by authorities in 2006 because of his appearance, the Tribunal did not accept that the applicant was questioned because he was a practicing Dervish or member of the NGDO or that the applicant was in fact a practicing Dervish or member of the NGDO. On that basis, the Tribunal found that the applicant’s “claimed fears of persecution on the basis of his religion [were] not genuinely held” and that there was “no real chance the applicant [would face] serious harm on return to Iran due to his religious associations with the NGDO or Dervish faith” (at [133]-[136]).
The Tribunal accepted that the applicant held views which were “critical of aspects of the Iranian regime and its desirous of maintaining what he considers to be greater freedoms in Australia”. The Tribunal did not accept, however, that the applicant had been involved in Dervishism or any “anti-government political activity” at a level that would put him at risk of harm (at [137]).
The Tribunal continued:
138.Even if the Tribunal accepted that the applicant is a member of the Dervish faith, which it does not, the Tribunal considers on the applicant's evidence and country information that the applicant would not face a real chance of serious or significant harm from Iranian authorities on this basis. Though country information documents instances of arrest and imprisonment of Dervish followers in Iran, the examples cited involved Dervish community members who were involved in active protests against the government. The applicant has not engaged in such activity in Australia or Iran and expressed no intention to do so in the future. Country information suggested there are several million followers of Dervishism in Iran and while the applicant suggested there were only several thousand 'members' of the Dervish sect in the country the Tribunal does not accept he has demonstrated in any way he would be considered among a smaller subset of ‘members’ even if it were to accept such a distinction exists in Iran. The large number of Dervish followers in Iran suggests that the risk for those who are not engaged in activities critical of the government is less than a real chance. On the evidence the Tribunal finds the applicant would only be considered a supporter of Dervishism and not an active member engaged in anti-government activities.
139.Further, the applicant described his practice in Australia and Iran as ‘internal’. He is a practising Shia Muslim who prays at home with a small group of fellow Shia. He did not articulate any intention or plan to practise his faith differently in Iran. His told the Tribunal his mother is aware of and accepting of his Dervish faith suggesting he would have family support in resettling in Iran. The Tribunal does not accept he would be identified by or seriously harmed by Iranian authorities due to being a follower or supporter of Dervishism.
The Tribunal ultimately found that there was no real chance the applicant would face serious harm for his Dervish faith (at [140]).
The Tribunal then discussed the applicant’s evidence in relation to his depression and anxiety in Australia, acknowledging that the applicant’s representative had submitted that the applicant’s mental health “may impede his capacity to give evidence” and that evidence from a counsellor had been provided in that regard prior to the Tribunal hearing scheduled in March 2021 (which the applicant ultimately did not attend) (at [141]-[142]).
The Tribunal explained that the applicant had “testified that the process of applying for the visa had caused him depression and anxiety” and acknowledged that that may be the case. The Tribunal did not consider that the applicant’s mental health issues were impacting the applicant’s capacity to live or work in Australia or that it would impact on his “capacity to resettle in Iran”. Further, the Tribunal described the applicant as “responsive, direct and fully engaged” at the hearing on 23 April 2021. The Tribunal noted that the applicant spoke of seeing a psychiatrist in April and told the Tribunal he was booked to see the psychiatrist again in June. However, as noted by the Tribunal, no evidence had been as provided in that regard (at [143]-[144]).
The Tribunal continued:
145.To the extent that the applicant relies on the [Omitted] mental health report to explain a lack of recollection of facts relevant to his claims or inconsistencies in his account of key events over time, the Tribunal does not accept the report provides support for a finding the applicant is unable to accurately record events on this basis. The Tribunal was mindful of the observations in the report regarding the applicant's potential vulnerabilities in giving evidence in the fair conduct of proceedings However, there was no medical evidence that the applicant lacked the capacity to give evidence or that his mental function was impaired in such a way that may explain inconsistencies or contradictions in his account of his core claims.
The Tribunal acknowledged that mental health issues can impact on an applicant’s ability to provide detailed or consistent evidence and noted that it had given the applicant opportunities to comment on or clarify any apparent inconsistencies in his evidence. Despite doing so, the Tribunal “remained concerned that inconsistencies or vague or contradictory evidence” could not be explained by reference to the applicant’s mental health issues or the passage of time (at [146]-[147]).
The Tribunal accepted that the applicant “may continue to suffer anxiety and depression on return to Iran and that he may require mental health treatment and support in Iran”. However, the Tribunal found that there was no evidence to suggest that he would be denied access to such mental health services in Iran. Further, whilst not raised or claimed by the applicant, the Tribunal found that there was no real chance that the applicant would face serious harm for any reason associated with his mental health (at [148]-[149]).
Based on the evidence before it (considered individually and cumulatively), the Tribunal was not satisfied that the applicant had a well-founded fear of persecution for any Convention reason and thus did not satisfy the criterion set out in s 36(2)(a) of the Act (at [150]-[153]).
Further, the Tribunal found that the applicant did not satisfy the complementary protection criterion set out in s 36(2)(aa) of the Act. Relevantly, the Tribunal determined:
156.The Tribunal has found that there is no real chance of serious harm to the applicant on the basis of his religion and in particular as a member of the NGDO/Dervish sect of faith or on the basis of his mental health. The Tribunal has carefully considered each of the integers of the applicant's claims of fear of serious harm, discussed above with respect to his claims for refugee protection, in the context of complementary protection criterion regarding the real risk of significant harm at s 36(2)(aa).
157.The Tribunal did not accept the applicant's claim to be a member of the Dervish faith. In any event, based on the applicant’s claimed history and practice the Tribunal has found the applicant did not face a real chance of serious harm on the basis of his religion. The Tribunal has also found the applicant does not face a real chance of serious harm due to mental health issues or for any other reason. Further, considering the applicant's cumulative profile there was no evidence to suggest the applicant's mental health issues were such as would place him at risk of significant harm for any other reason.
158.Having considered the applicant's circumstances singularly and on a cumulative basis and for all the reasons set out above, the Tribunal finds that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Iran, there is a real risk that the applicant will suffer significant harm. The Tribunal therefore finds the applicant does not satisfy the criterion set out ins 36(2)(aa).
Having concluded that the applicant did not satisfy the criteria set out in ss 36(2)(a) or 36(2)(aa) of the Act, the Tribunal affirmed the delegate’s decision refusing to grant the applicant the visa (at [159]-[162]).
Application to this Court
The application for judicial review filed by the applicant on 22 February 2022 contained two “grounds of review” as follows (without alteration):
1.THE TRIBUNAL FAILED TO TURN IT’S MIND TO ALL THE EVIDENCES PRESENTED IN SUPPORT OF MY APPLICATION.
2.TRIBUNAL DID NOT ACCORD ME NATURAL JUSTICE.
On 28 April 2022, procedural orders were made by Registrar Carney of this Court giving the applicant an opportunity to file an amended application, any additional evidence and written submissions.
On 28 December 2022, the applicant filed written submissions outlining “issues” for the Court’s consideration. Those written submissions will be addressed below.
On the morning of the hearing (being 30 January 2023), the applicant sent an email to the Court attaching various news articles and country information. These documents will also be discussed further below.
The materials before the Court thus include the application for judicial review and supporting affidavit filed by the applicant on 22 February 2022, a Court Book numbering 356 pages (marked as Exhibit 1), written submissions filed by the applicant on 28 December 2022, written submissions filed by the Minister on 10 January 2023, an affidavit of service of Georgina Ellis affirmed and filed on 17 January 2023 and the documents provided by the applicant on 30 January 2023 (marked as Exhibit 2).
The applicant appeared without legal representation but with “friends” who attended to “support the applicant”. No issues arise in this regard. The Court confirmed with the applicant that he had received copies of the Court Book and the Minister’s written submissions.
Noting that the applicant was not represented (and noting the remarks of the Federal Court in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8] that it is usually appropriate for an unrepresented applicant to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review)), the Court gave the applicant an opportunity to outline orally what he thought the Tribunal “did wrong” in relation to his matter.
The Court explained that this Court can only turn its attention to the issue of jurisdictional error in the Tribunal’s decision. The Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, however, they most commonly include (but are not limited to) the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24 at [207]-[208];
(e)where the decision-maker fails to consider the entirety of an applicant’s claims (or integers of the claims) made: Minister for Immigration & Citizenship v SZKRT [2013] FCA 317 at [111];
(f)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(g)where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 (“Djokovic”) at [33]; Minister for Immigration & Citizenship v SZMDS [2010] HCA 16 (“SZMDS”) at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh [2014] FCAFC 1 at [44].
The Court also explained that it cannot undertake a merits review of the Tribunal’s decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. Importantly, the Court cannot grant the visa that the applicant now seeks even if the Court disagrees with the Tribunal’s ultimate findings. Rather, the Court can only undertake an analysis of whether the Tribunal engaged in jurisdictional error of the sort outlined above.
Against this background, the applicant stated (referencing the materials in Exhibit 2, which were not before the Tribunal) that although he understood that the current situation in Iran might appear, to an outsider, to be different now (compared to when the Tribunal made its decisions about his visa application), in his view, the situation now is just as it has been for the past 43 years. The applicant stressed that protests like those happening in Iran now have been happening for years, mentioning, in particular, protests in 2009 and 2012.
The applicant accepted that although he himself had provided the Tribunal with a DFAT report dated April 2020, this Report (and the 2015 DFAT Report) did not accurately reflect “real life” in Iran. He stressed that, had the Tribunal looked at any other information about Iran (like the material in Exhibit 2), it would have seen that the “chaos happening in Iran” had always been there. Although not entirely clear, it appears that, on the basis of the materials in Exhibit 2, the applicant is arguing that the Tribunal’s conclusions about the risk of harm are illogical.
Finally, the applicant expressed concerns with the conduct of the representative who assisted him at the Tribunal. The applicant explained that, while, had “assistance” before the Tribunal, he felt that his representative did not “seem to care much or do much” to assist and did not give him “much support at the hearing”.
These issues will be discussed further below.
Consideration
Grounds of review
Ground 1
Ground 1 provides:
1.THE TRIBUNAL FAILED TO TURN IT’S MIND TO ALL THE EVIDENCES PRESENTED IN SUPPORT OF MY APPLICATION.
To the extent that the applicant claims that the Tribunal failed to take into account evidence he or his representatives provided to the Tribunal, the Court disagrees.
The applicant has not indicated what evidence, in particular, was ignored or overlooked. Having reviewed the Tribunal’s decision and the materials in the Court Book, it is clear that the Tribunal’s decision here is forensic. Relevantly, the Tribunal outlined the applicant’s protection claims (at [10]) and confirmed that the applicant had agreed that this was a “fair summary” of his claims (and that no additional protection claims were raised before the Tribunal) (at [11]). The Tribunal also outlined the documents provided to the Department prior to his protection visa interview (at [12]).
The Tribunal listed all of the materials provided to the Department in relation to the applicant’s visa application, as follows:
35.The applicant made his application for protection on 21 January 2014. The applicant was accompanied by the following documents:
•Written submissions from the applicant's then representatives;
•Passport photos;
•A statutory declaration of the applicant dated 6 December 2013;
•An original and translation of the applicant's military service termination card;
•An original and translation of the applicant's birth certificate;
•An original and translation of a national identity card in the name of [omitted].
•Educational documents;
•An IELTS certificate (English language test); and
•Certified copies of the applicant's passports issued on 18 September 2007 and 8 August 20212.
Additional submissions from the applicant's representatives also appear on the file though they are not dated. Submissions from the then representatives cited various sources of country information.
The Tribunal then set out the information provided by the applicant in relation to the review application, as follows:
36. Prior to the first hearing the applicant submitted the following to the Tribunal:
•Written submissions from the applicant's representative dated 14 December 2020;
•DFAT Country Information Report on Iran dated 14 April 2020;
•Human Rights Watch online article entitled “Iran: Over 200 Dervishes Convicted”.
The Tribunal gave a detailed overview of the information contained in the applicant’s written submissions in its reasons (set out at [64]-[70]).
The Tribunal also set out (in some detail) the oral evidence provided by the applicant at the various hearings before it (at [39]-[62]).
The Tribunal also confirmed (at [63]) that it had given the applicant further time within which to provide evidence “with respect to his practice in Australia”, noting, however, that “no further information was provided”.
It is clear from the information above that the Tribunal gave careful consideration to both the applicant’s oral submissions and evidence and to the documentary evidence provided by the applicant’s representative (on the applicant’s behalf).
Further, as correctly submitted by the Minister (at [30] in written submissions filed in this Court on 10 January 2023), the Tribunal is under no obligation to make specific reference to every piece of evidence before it: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [46]. Nor is the Tribunal required to give a “line by line refutation of an applicant’s claims: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2002) 168 ALR 407 at [65]).
To the extent that the applicant disagrees with the Tribunal’s conclusions and findings on the evidence before it, that disagreement in and of itself unfortunately does not amount to jurisdictional error.
No error arises in relation to ground 1.
Ground 2
Ground 2 states:
2.TRIBUNAL DID NOT ACCORD ME NATURAL JUSTICE.
Insofar as the applicant suggests that he was not afforded natural justice, the Court again disagrees.
Division 4 of Part 7 of the Act is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to matters of this sort: s 422B of the Act.
For the reasons that follow, the Court is satisfied that the applicant was afforded natural justice and given ample opportunity to provide evidence to the Tribunal and present arguments in support of his case.
Relevantly, the Court notes that the applicant:
(a)was invited to, and attended, multiple hearings before the Tribunal (as required by ss 425 and 425A of the Act);
(b)failed to attend a resumed hearing before the Tribunal (on 16 March 2021). Rather than dismissing the application for non-appearance or proceeding to decide the matter on the evidence before it at that stage, however, the Tribunal instead listed the matter for a further hearing on 23 April 2021;
(c)provided written submissions (through his representative) and supporting materials (including country information) to the Tribunal in support of his review application;
(d)was assisted throughout his review application by a migration lawyer (this issue will be discussed further below);
(e)was on notice from the time of the delegate’s decision (being from 25 May 2017) that the credibility of his protection claims were in issue (and this issue is, in fact, discussed in the delegate’s decision in some detail). As such, the Tribunal was not required to put the applicant on notice: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152; and
(f)was given multiple opportunities to provide further documentary evidence to the Tribunal, including before and after the Tribunal hearings. For example, the applicant was given additional time after the final hearing within which to provide corroborative evidence in support of his religious practices in Australia. He did not do so.
The Court is satisfied that the Tribunal gave the applicant every opportunity to provide evidence in support of his case and that the applicant was afforded natural justice in this matter.
No error arises in this regard.
Applicant’s written submissions
As noted above, the applicant filed written submissions in this Court on 28 December 2022. Those submissions raise four “additional points” or “grounds of review”.
Point 1
The applicant claims that, given that the Tribunal accepted that the applicant might need to seek treatment for anxiety and depression in Iran, it erred by failing to consider that, by doing so, the applicant would “bring information, such as his membership [with] the NGDO/Dervish sect … to light”. In the alternative, the applicant suggests that he would not seek treatment because of his religious beliefs and this, in turn, would cause “his mental health to deteriorate”.
Unfortunately, the applicant’s assessment of what occurred does not accurately reflect the Tribunal’s findings. Here, the Tribunal consistently stated that it was not satisfied that the applicant was an active or practising member of the NGDO or the Dervish faith or that he would face a real chance of harm on that basis (see, for example, [115], [117], [119], [134]-[136], [138], [139]-[140], [150], [156]-[157] in the Tribunal’s written reasons).
Further, the Tribunal found that, even if it accepted that the applicant was a member of the Dervish faith, he would not face a real chance of harm from authorities in Iran on that basis. Specifically, the Tribunal stated:
138.Even if the Tribunal accepted that the applicant is a member of the Dervish faith, which it does not, the Tribunal considers on the applicant's evidence and country information that the applicant would not face a real chance of serious or significant harm from Iranian authorities on this basis. Though country information documents instances of arrest and imprisonment of Dervish followers in Iran, the examples cited involved Dervish community members who were involved in active protests against the government. The applicant has not engaged in such activity in Australia or Iran and expressed no intention to do so in the future. Country information suggested there are several million followers of Dervishism in Iran and while the applicant suggested there were only several thousand 'members' of the Dervish sect in the country the Tribunal does not accept he has demonstrated in any way he would be considered among a smaller subset of 'members' even if it were to accept such a distinction exists in Iran. The large number of Dervish followers in Iran suggests that the risk for those who are not engaged in activities critical of the government is less than a real chance. On the evidence the Tribunal finds the applicant would only be considered a supporter of Dervishism and not an active member engaged in anti-government activities.
139.Further, the applicant described his practice in Australia and Iran as 'internal'. He is a practising Shia Muslim who prays at home with a small group of fellow Shia. He did not articulate any intention or plan to practise his faith differently in Iran. His told the Tribunal his mother is aware of and accepting of his Dervish faith suggesting he would have family support in resettling in Iran. The Tribunal does not accept he would be identified by or seriously harmed by Iranian authorities due to being a follower or supporter of Dervishism.
In circumstances where the Tribunal did not consider that the applicant was a practising member of the Dervish faith, it was not necessary for the Tribunal to consider whether there would be any risk of harm arising if the applicant sought mental health treatment and his claimed religious beliefs “came to light”.
No error arises in relation to point 1.
Point 2
By point 2, the applicant claims that the country information relied upon by the Tribunal was incorrect and did not accurately reflect the situation in Iran. In this regard, the applicant claimed to have “real life information from his family and friends living in Iran as to what life is currently like in Iran and how it has been over the last years” and referenced “other wide range[s] of trusted media sources” as containing “more accurate information”. Further, the applicant stressed that the “government in Iran is known to be far more cruel and suppressing than what is presented in the country information” the Tribunal had before it at the time of its decision.
The Court notes that the 2020 DFAT country information report considered by the Tribunal was provided to the Tribunal by the applicant’s representative. When asked about this at the hearing, the applicant stated that he had only provided it to the Tribunal to show that there was a more up to date version of the report. He stressed, however, that the DFAT country information report was inaccurate and did not “detail the extent of the suppression in Iran and the oppressive nature of the regime”.
The Court notes that the Tribunal considered and referenced a range of country information reports (including the DFAT report provided by the applicant’s representative) in its reasons (at [94]-[104]).
It is a matter for the Tribunal as to which country information it looks at and the weight placed on that information. In this regard, the Court notes the decision in Nahi v Minister for Immigration & Multicultural & Indigenous Affairs [2014] FCAFC 10 (“Nahi”) where the Full Court stated (at [11]):
…There can be no objection in principle to the tribunal, in that context, relying on country information. The weight that it gives to such information is a matter for the tribunal itself, as part of its fact-finding function. Such information as the tribunal obtains for itself is not restricted to guidance. It may be used to assess the credibility of a claim of a well-founded fear of persecution. The question of the accuracy of the information is one for the tribunal, not for the court. If the court were to make its own assessment of the truth of country information, it would be engaging in merits review, and the court does not have the power to do that.
The Court is not able to identify any jurisdictional error in relation to the way in which the Tribunal assessed the country information before it. While this Court might have determined otherwise, that is not the test on review. The Tribunal’s approach in relation to the country information was orthodox and, on the evidence before it at the time of its decision, entirely sound.
No error arises in relation to point 2.
Point 3
By point 3, the applicant claims that the Tribunal “dismissed” the fact that he did not attend his father’s funeral in Iran because he did not feel safe to do so. Further, the applicant suggests that his “upstanding record in Australia” (being his “exemplary employment history, paying taxes, no criminal record and positive contribution to Australian [s]ociety”) should have been relied on to “counteract” the Tribunal’s perception that the applicant’s claims lacked credibility. The applicant also takes issue with the Tribunal considering his “delay in applying for a protection visa” as a reason for “doubting his claims”.
To the extent that the Tribunal did not specifically reference the fact that the applicant did not return to Iran to attend his father’s funeral or the applicant’s upstanding record in Australia, the Tribunal was not obliged to refer to every piece of evidence before it: NAHI at [14]. Further, a failure by the Tribunal to specifically refer to any piece of evidence does not necessarily mean that it has not been considered: Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67 at [34].
Insofar as the applicant’s credibility was concerned, the Tribunal’s findings were largely based on inconsistencies and vague evidence. The Tribunal considered the applicant’s mental health concerns and the passage of time when making those findings. Specifically, the Tribunal stated:
109.The Tribunal gave careful consideration to the applicant's responses to issues of inconsistent or implausible evidence. The Tribunal is mindful of the passage of time and the effect this may have on the ability of the applicant to precisely recall dates and events. The Tribunal is also mindful of the impact the applicant's claimed mental health issues may have on his evidence. However, the Tribunal was careful to give the applicant the opportunity to comment on or clarify apparently inconsistent statements and to provide corroborating evidence where, in the Tribunal's view, it is reasonable to expect it would have been possible for the applicant to provide it. This was particularly the case with respect to the applicant's claimed engagement with Dervish groups or followers in Australia where there are no restrictions on the applicant's religious practice. This included the Tribunal allowing further time for such evidence to be provided. No corroborative evidence was provided. No reasonable explanation for the failure to provide such evidence was offered.
…
111.However, the Tribunal found the inconsistencies or vague evidence including in relation to key events relating to the claims could not be explained merely by the passage of time, poor recollection or the applicant's mental health issues as described in the material available to the Tribunal.
The Tribunal’s reasons were clear and included a comprehensive assessment of the applicant’s evidence (oral and documentary) and detailed adverse credibility findings. Further, the findings made by the Tribunal were open to it on the evidence before it. Again, while this Court may have come to a very different conclusion, that is not the test upon review.
Finally, in so far as the applicant suggests that the Tribunal erred in taking into account the delay in the applicant applying for a protection visa, the Court disagrees.
In this regard, the Court notes the comments made by the Federal Court in Thuraisamy v Minister for Immigration and Multicultural Affairs [1999] FCA 1632 (citing Selvadurai v Minister for Immigration & Ethnic Affairs (1994) 34 ALD 347) as follows:
10.Finally, it is said the Tribunal erred in relying on the decision of Heerey J in Selvadurai v Minister for Immigration & Ethnic Affairs (1994) 34 ALD 347 - to the effect that it is legitimate in assessing the genuineness, or at least the depth, of an applicant’s claimed fear of persecution to take into account any delay by the applicant in lodging an application for a protection visa. The Tribunal member commented:
“In the present case the Applicant's delay in seeking Australia's protection, coupled with the fact that he has left and returned to Sri Lanka on three occasions after the events which he claims gave rise to his fear of being persecuted leads me to conclude that he does not have a genuine fear of being persecuted if he returns to Sri Lanka now or in the foreseeable future.”
We see nothing wrong with this statement. Of course, the existence of delay does not end the inquiry. There may be a good reason for the delay, notwithstanding genuine and deep fears of persecution. In this case, the Tribunal did not suggest otherwise. We do not think the Tribunal misunderstood or misused the decision of Heerey J.
There was no error in the Tribunal taking into account the delay by the applicant in lodging his protection visa application.
No error arises in relation to point 3.
Point 4
The applicant’s fourth and final point suggests that the Tribunal should have considered the applicant’s mental health issues as a reason for the applicant’s delay in commencing his practice of the Dervish faith in Australia.
Unfortunately, there is no evidence before this Court to suggest that the applicant raised his mental health as a reason for the delay.
The Tribunal summarises the applicant’s evidence in this regard as follows:
128.Further to these concerns, the Tribunal considered the applicant's delay in practising in Australia until several years after his arrival, is not consistent with his claimed level of commitment to the faith in Iran or his claim to have left Iran in part due to an inability to practise freely in that country. The applicant claimed he had no time to seek out the Dervish community or practise Dervishism as he had to work to support himself and earn money for his visas. He said he was trying to establish himself here and after that he would have time The Tribunal does not consider this explanation to be consistent with his claim to have fallen in love with the religion in Iran and believed with all his heart in the teachings and practice of the faith.
Further, the applicant’s evidence about his depression and anxiety suggest that it was linked to his visa application and, as such. does not account for a delay in commencing the practice of his faith in Australia. In this regard, the Tribunal, outlined the applicant’s evidence as follows:
143.The applicant testified that the process of applying for the visa had caused him depression and anxiety. The Tribunal acknowledges this may be the case. However, there was no evidence that his health issues were impacting the applicant's capacity to live and work in Australia or that they would impact his capacity to resettle in Iran
In circumstances where the applicant did not raise his mental health as a reason for his delay in practising his faith in Australia, there can be no error on the part of the Tribunal for failing to consider this issue.
No error arises in relation to point 4.
Exhibit 2
As outlined above, the applicant provided a bundle of country related material to the Court on the morning of the hearing (being on 30 January 2023).
Those documents were marked by the Court as Exhibit 2. They do not appear to have been before the Tribunal. Indeed, all of the documents post-date the Tribunal’s decision.
The Court notes that an application for judicial review (being a matter of the sort the subject of this proceeding) is ordinarily confined to materials which were before the Tribunal: SZJMG v Minister for Immigration & Citizenship [2008] FCA 1145. The Court also notes that it is not open for an applicant to ask that the Court admit new evidence for the purpose of disagreeing with a factual conclusion reached by the Tribunal: MZXHY v Minister for Immigration [2007] FCA 622 at [8] and Gupta v Minister for Immigration [2016] FCA 1004 at [27]. Further, it is generally not open to the Court, on a judicial review application, to consider material which was not before the relevant administrative decision-maker: WZATI v Minister for Immigration & Border Protection [2015] FCA 923 at [70] per Barker J. That principle applies here.
As outlined above, it is well settled that the use and assessment of country information, together with the weight given to that country information, is a matter for the Tribunal: NAHI. Further, the Tribunal took into account a DFAT country information report provided to it by the applicant’s representative. The Tribunal was entitled to do so and it would have been problematic had the Tribunal not done so.
In the circumstances, the Court cannot place any weight on the information provided by the applicant in relation to the current situation in Iran (however dire that situation may well be). That material does not identify any jurisdictional error on the part of the Tribunal.
Applicant’s oral submissions
Illogicality
In oral submissions before this Court, the applicant spent considerable time referencing the materials provided in Exhibit 2. The Court notes, as outlined above, that it has placed no weight on that material in so far as the applicant relies on it to demonstrate the situation in Iran as it currently is. The Tribunal cannot be expected to assess materials that were not before and which post-date the Tribunal’s decision.
When discussed with the applicant, the applicant explained that he had not provided the material in Exhibit 2 because he wanted to the Court to engage in an impermissible merits review on the basis of new evidence. Rather, the material was relied on simply to demonstrate that the current situation in Iran is as it has been for at least 40 years – chaotic, oppressive and discriminatory. On that basis, given that these materials demonstrate both the historical and current reality of the situation in Iran, the Court, the applicant argued, should assesse these new materials for the purpose of concluding that the Tribunal’s findings in relation to the situation in Iran (both generally and for those who practice differing religions or who undertake any activity not in line with the regime’s very strict rules) were “illogical or irrational”.
As outlined by the High Court in SZMDS, the threshold for any finding of illogicality and irrationality is set high:
130.In the context of the Tribunal’s decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
131.What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
The Court also notes the comments made by the Full Court of the Federal Court in DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91 as follows.
85.Third, differences of degree, impression and empirical judgment between the approach and reasoning of the Authority as compared with the opinion of a court undertaking judicial review do not establish illogicality or irrationality (Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [78] per Heydon J). There is a high threshold. The question is whether no rational or logical decision-maker could arrive at the relevant decision on the evidence before the decision-maker (SZMDS at [130] per Crennan and Bell JJ). As their Honours said at [131]:
The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
86. Moreover, at [135] their Honours continued:
Whilst there may be varieties of illogicality and irrationality, 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 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 the 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. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims.
87.Fourth, the weight that the Authority accorded to each aspect of the evidence was a matter for it to determine in the light of the evidence and submissions before it. Questions of weight per se are not amenable to judicial review (Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27] per French J; Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 at [5] per RD Nicholson J (Kiefel and Downes JJ agreeing); Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41 per Mason J).
With this jurisprudence in mind, the Court notes that, while it may well have approached the applicant’s case and the use of country information differently, that is not the test relevant upon review.
As outlined above, the weight the Tribunal gives country information is a matter for the Tribunal and not a matter for this Court. Further, any country information that the Tribunal obtains for itself is not restricted to guidance and may be used in the assessment of the credibility of an applicant’s claim. The question of the accuracy of that information is also one for the Tribunal and not for this Court: Nahi at [11].
If this Court were to consider the correctness of the country information it may be moving towards impermissible merits review and the Court will not do so here.
In this matter, the Tribunal’s assessment of the country information before it was sound.
It cannot be said here that the Tribunal made a decision (or reached a state of satisfaction) that was so lacking a rational or logical foundation that the decision (or state of satisfaction) was one that no rational or logical decision-maker could reach: Djokovic at [33]. The Court again notes that the country information in this matter was information that the applicant himself had put before the Tribunal and, despite being given a further opportunity, no other information was forthcoming. There is nothing to suggest that that material was unreliable or that the Tribunal’s assessment of it was unsound or that there was no logical connection between this material and the inferences or conclusions ultimately drawn by the Tribunal.
No error arises in this regard.
Conduct of representative
As outlined above, the applicant also claimed (in oral submissions to this Court) that his migration agent did “not appear to care” about his case and he did not “get much help from him” in relation to the Tribunal review.
There is no evidence before the Court to suggest that was the case. Indeed, it does appear on the evidence that the applicant’s representative did what he could do to ensure that the applicant was given the opportunities he needed to present his case. Specifically, the representative:
(a)came “on the record” to assist the applicant on 11 July 2018 (CB 176-177);
(b)was overseas (in Prague) at the time of the first Tribunal hearing and, when the Tribunal was unwilling to delay the hearing date, negotiated an earlier hearing date (17 December 2020 instead of 18 December 2020) and a change to the hearing time to allow the representative to attend by telephone from Prague at an appropriate time (CB 185-189);
(c)provided written submissions, country information and supporting material to the Tribunal (whilst out of the country) on 14 December 2020 (CB 195-283);
(d)attended the Tribunal haring on 17 December 2020 by telephone from Prague (CB 284);
(e)provided information (in the form of a letter from a counsellor) to the Tribunal in relation to the applicant’s mental health on 15 March 2021 and sought an adjournment of the resumed hearing (CB 297-300);
(f)appeared at the Tribunal hearing (in the applicant’s absence) on 16 March 2021 and had an “administrative discussion” with the Tribunal member at that time (CB 304);
(g)appeared at a further Tribunal hearing (with the applicant) on 23 April 2021 (CB 317-320); and
(h)advised the Tribunal (on 7 May 2021) that the applicant would not be providing any additional evidence or materials in support of his application (CB 321).
Based on the information above, the Court is satisfied that the representative did what was required of him.
No error arises in this regard.
Ministerial Intervention
In September 2022, Jina “Mahsa” Amini was arrested in Iran by the “morality police” for failing to “properly” wear her hijab. It is alleged that this young woman was severely beaten and died while in police custody. Following her death, protests erupted across Iran and have sparked international outrage in relation the Iranian government’s treatment of women specifically and the Iranian people more broadly. Subsequent demonstrations and protests in Iran have led to deaths and widespread arrests of those deemed to question the authority of the Iranian state.
There would be few in Australia who would dispute that the current situation in Iran constitutes a humanitarian crisis and, further, that there are very real concerns that persons returning to Iran in the current climate risk a most uncertain and volatile future.
It is conceivable that the country information now available paints a very different picture to that which was available to the Tribunal in January 2021. That much is evident from the information contained in Exhibit 2.
The Court cannot, however, take a changing situation in a country (however dire) into account when assessing whether the Tribunal fell into jurisdictional error. The Tribunal’s decision can only be assessed on the basis of the material before it at the relevant time and by reference to circumstances as they existed at the relevant time: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 [2022] FCAFC 12; EGW17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1177; GLX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 9.
The Court’s jurisdiction in matters of this sort is limited and, in circumstances where there is no evidence of jurisdictional error on the part of the Tribunal, the Court is, regrettably, unable to assist the applicant – regardless of the current situation in Iran. However, the Court notes that where, as here, the Tribunal has affirmed a decision refusing to grant an applicant a protection visa, and that decision has been upheld on review, the Minister has a statutory discretion pursuant to s 417(1) of the Act to substitute a more favourable decision.
While the Court has no power or ability to compel (or indeed ask) the Minister to exercise his discretionary powers, the Court notes (for the applicants’ benefit) that the Minister does have the power to do so and can elect to exercise those powers should he decide (on the current evidence) that it would appropriate to do so.
Conclusion
The application for judicial review filed by the applicant on 23 February 2022 has failed to identify any jurisdictional error on the part of the Tribunal. This Court is otherwise unable to identify any error.
The application is, accordingly, dismissed.
I certify that the preceding one hundred and fifty-one (151) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 9 February 2023
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