AOI16 v Minister for Immigration

[2016] FCCA 2012

FEDERAL CIRCUIT COURT OF AUSTRALIA

AOI16 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2012

Catchwords:
MIGRATION – Review of decision of Administrative Appeals Tribunal –application for protection visa – grounds of apostasy and political opinion – whether Tribunal failed to consider the previous findings and/or recommendations of the Independent Protection Assessor – whether the Tribunal’s adverse credibility findings were open to it – whether the Tribunal’s findings were unreasonable or irrational – apprehended bias – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.46A, 65, 189(3), 414, 425, 476

Migration Regulations 1994 (Cth), Reg.2.08F

Cases cited:

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184
Craig v South Australia [1995] HCA 58

Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 713

Minister for Immigration and Citizenship v MZXPA [2008] FCA 185

Minister for Immigration  v SZMDS (2010) 240 CLR 611

NABE v the Minister for Immigration and Multicultural and Indigenous Affairs (2) [2004] FCAFC 263

Applicant: AOI16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

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

File Number: MLG 611 of 2016

Judgment of: Judge McNab

Hearing date: 21 June 2016

Date of Last Submission: 21 June 2016

Delivered at: Melbourne

Delivered on: 19 August 2016

REPRESENTATION

Counsel for the Applicant: Ms Kanapanagiotidis

Solicitors for the Applicant: Victoria Legal Aid

Counsel for the Respondents: Mr Knowles

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application filed 15 March 2016 be dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 611 of 2016

AOI16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

RODGER SHANAHAN IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By an application dated 15 March 2016, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) dated 9 February 2016. The Tribunal had affirmed the decision of a delegate of the Minister not to grant the applicant a Protection (Class XA) visa under s.65 of the Migration Act 1958 (Cth) (“the Act”).

2. The applicant had applied for a Protection (Class XA) visa on 20 December 2012. Legislative amendments were made inserting s.45AA in the Act and Reg.2.08F in the Migration Regulations 1994 (Cth) (“the Regulations”).The effect of which was that from 16 December 2014, the application is taken to be, and to have always been, a valid application for a Temporary Protection (Class XD) visa and is taken not to be, and never to have been, a valid application for a Protection (Class XA) Visa (“the visa”).

3. The applicant filed an amended application on 9 June 2016 seeking judicial review pursuant to s.476 of the Act, contending that the Tribunal’s decision was affected by jurisdictional error. The grounds of review provided:

   Ground 1: The Tribunal committed jurisdictional error by relying on the previous decision and/or findings of the delegate and/or by failing to take into consideration the previous findings and/or recommendation of the Independent Protection Assessor (‘IPA’).

   Particulars

   a. The Tribunal’s reliance on the delegate’s decision affected its ability to undertake its review of the applicant’s case given the delegate’s findings were improperly made and/or unreasonable.

   b. In addition or in the alternative, the Tribunal’s reliance on the delegate’s findings and/or decision were unreasonable.

   c. In addition or in the alternative, the Tribunal’s failure to give any weight or consideration to the IPA findings and recommendation was a failure to take into account a relevant consideration and/or unreasonable.

   Ground 2: The Tribunal committed jurisdictional error by making significant findings in the applicant’s case that were unreasonable.

   Particulars

   a. The Tribunal made adverse credibility findings against the applicant causing it to reject significant aspects of the applicant’s claims without an intelligible basis or justification.

   b. The Tribunals’ findings that the applicant was not at risk of harm due to his detention in February 2011 and was not owed complementary protection due to his poor mental health were unreasonable findings, without a proper or intelligible basis.

   Ground 3: The Tribunal’s decision is affected by apprehended bias.

   Particulars

   a. The Tribunal’s decision is affected by apprehended bias which is evidenced by:

   (i) The general conduct of the hearing.

   (ii) The reasons for decision and the adverse findings made against the applicant.

   (iii) the Tribunal’s rejection of the applicant’s advisers evidence as ‘not true’; and

   (iv)The Tribunal’s unwillingness to accept further evidence by the applicant

   Ground 4: The Tribunal committed jurisdictional error in that it failed to consider an integers of the applicant’s claims

   Particulars

   a. The Tribunal failed to consider an integer of the applicant’s claims, namely:

   i. The risk of future harm on account of his cultural expression.

   ii. The risk of future harm as a failed Iranian Kurdish asylum seeker from a Western country who had previously been detained and questioned in respect of Kurdish activities and/or with mental health issues.

Background

1. The applicant is an Iranian citizen. He arrived on Christmas Island on 24 June 2011 and upon his arrival, was detained pursuant to s.189(3) of the Act.

2. On 4 October 2011, the applicant requested a protection obligations determination. At [32] of his application, he states that as a person of Kurdish ethnicity, who has committed apostasy, he would face persecution and serious harm as a “failed Iranian Kurdish apostate asylum seeker…”

3. In the applicant’s claim for protection, he states that he was detained on three occasions by Iranian authorities.[1] The first detention was on 16 August 2007 at his wedding ceremony; the second on 9 May 2010 when he attended a protest against the execution of a prominent human rights activist (where he claims to have been tortured by Iranian authorities) and the third occasion on 14 February 2011, when he was detained for two days to prevent him from protesting the death of Sane Jaleh (an Iranian Kurd from Paveh who had been killed during protests in Iran).

   [1] CB 75

4. On 9 November 2011, an officer of the Department interviewed the applicant about his request for a Protection Obligations Evaluation (POE) and found that the applicant was not a refugee within the meaning of the United Nations 1951 Convention Relating to the Status of Refugees (Refugees Convention) and the 1967 Protocol Relating to the Status of Refugees (Refugees Protocol).[2] As a result of this finding, the matter was referred to an Independent Protection Assessor (“the Assessor”) for an Independent Protection Assessment (IPA).

   [2] CB 86

5. On 26 April 2012 the Assessor issued his Independent Protection Assessment. The Assessor was satisfied that the applicant was a person to whom Australia had protection obligations. Subsequently, on 12 December 2012, the Minister exercised the power under s.46A of the Act to permit the applicant to lodge a protection visa application. On or about 20 December 2012, the applicant applied for a protection visa.

6. On 16 June 2015 the delegate refused to grant a protection visa to the applicant.

The Delegate’s decision

1. The delegate at [9] of its decision stated that in addition to the reasoning and country information assessed in the POE and the IPA, it considered the additional information that was provided to be significant.

2. The delegate found that the applicant had knowingly submitted false evidence and was not a witness of truth as his claims and testimony had “consistently proven not to be credible”.[3] The delegate was not satisfied that the applicant faces a real risk of significant harm if he were to be removed from Australia and returned to Iran.[4] He made findings that there was no real chance that the applicant would be detained, tortured and/or killed for any of the reasons that he had put forward.[5]  

   [3] CB 483, 498

   [4] CB 497

   [5] CB 497

3. On 23 June 2015, the applicant applied to the Tribunal for review of the delegate’s decision.

The Tribunals’ decision

1. On 2 February 2016, the Tribunal conducted a hearing, at which the applicant was represented and gave evidence with the assistance of an interpreter. On 9 February 2016 the Tribunal handed down its decision, in which it affirmed the delegate’s decision to refuse to grant a protection visa to the applicant.

2. In its decision, the Tribunal found that in spite of any mental health problems suffered by the applicant, he had been provided, with the assistance of his representative, a proper opportunity to put his case before the Tribunal. The Tribunal considered that the applicant was, at, relevant times, competent to give evidence and make submissions.

3. The Tribunal was not satisfied that, as a result of a brief and isolated detention of the applicant (during which he was unharmed), the applicant would face a real chance of serious or significant harm in the reasonably foreseeable future. The Tribunal had also observed that the applicant departed Iran lawfully using a passport issued in his own name.

4. The Tribunal found that the applicant would have available to him mental health treatment upon his return to Iran and that the applicant’s mental health would improve upon his return to Iran if he were to receive such treatment.

5. The Tribunal referred to deficiencies in the applicant’s claims and evidence and found that he was not a witness of truth and that his evidence was not generally credible.

6. In particular, the Tribunal considered the applicant’s claims that he had, on at least two occasions been arrested, detained and mistreated by the authorities.  In respect of an alleged incident at the applicant’s wedding ceremony, the Tribunal “rejected as false the claim [that] the applicant and his father were arrested when men ‘stormed’ his wedding ceremony in August 2007.”

7. In respect of an alleged incident resulting from the applicant’s claimed attendance at a political demonstration, the Tribunal accepted that he may have been questioned and briefly detained. The Tribunal did not accept that the applicant had been mistreated at this time in May 2010. Rather, it found that the applicant had been detained briefly and released unharmed. The Tribunal made a similar finding in respect of another alleged incident of mistreatment in February 2011. 

8. The Tribunal also found that the applicant had submitted false evidence in support of his claim that, after watching video footage on his phone of the death by stoning of a woman in Iran, he ceased to be a Muslim. The Tribunal found that the claimed stoning had not occurred and the applicant had never genuinely sought to convert from Islam to Christianity.

Applicant’s submissions

Ground 1

1. In support of Ground 1, the Applicant’s Outline of Submissions at [48] states:

   It was therefore not open for the delegate – in light of the previous finding of the Minister whom the delegate represented – to depart from the IPA’s conclusion and decision, which again, importantly were accepted by the Minister. The result is untenable:

   a. It produces inconsistent decision-making effectively by the one body;

   b. It creates uncertainty for an applicant and casts upon him an impossible burden;

   c. It encourages one decision make to conduct a merits review of a former decision maker, which is what, it is alleged, occurred here.

2. The applicant also claims at [47] that in regards to the additional information that the delegate considered after the earlier IPA decision, little had changed in respect of the applicant’s case with the effect that the IPA Assessor’s decision should have stood. 

   Ground 2

3. In support of Ground 2, at [60] to [63], the applicant submitted that it was unreasonable for the Tribunal to make adverse findings on the basis of it rejecting the applicant’s claims that he did not attend any political protests. It was also said to be unreasonable to reject evidence from the applicant’s adviser in relation to the difficulty the adviser had in contacting the applicant which went to the reason why the Tribunal and the adviser had not been provided with evidence of alleged stoning episodes. Further, the applicant submits that it was unreasonable for the   Tribunal to make an adverse finding on the applicant’s apostasy claims as the IHMS health record of 29 July 2011 indicated that the applicant did not wish to take medication as he was observing Ramadan.

   Ground 3

4. In further submissions regarding ground 3, the applicant claims at [77] of his Outline of Submissions that during the Tribunal hearing, the manner in which the Tribunal put its propositions and questions to the applicant, together with the adverse credibility findings and rejection of the applicant’s claims, was indicative of an apprehension of bias in the Tribunal’s assessment of the applicant’s claims. The Tribunal rejected the applicant’s adviser’s evidence which to the effect that as a result of his inability to speak properly to the applicant at an earlier stage, the applicant had been unable to provide photographs earlier. The Tribunal had rejected this evidence as ‘not true’ and the applicant claims that this was made without any reasonable basis and therefore this too contributes towards the apprehension of bias.

   Ground 4

5. In support of ground 4, the applicant at [79] to [82] of his submissions claims that the Tribunal failed to consider if the applicant would suffer harassment in the future for reasons of his cultural expression, as it had been claimed and accepted by the Tribunal that the applicant was subject to harassment and ridicule for his cultural dress when going to and returning from school. The applicant notes that the Tribunal in its decision had discussed DFAT material which stated that those who publicly assert their cultural or political rights have an increased risk of coming to the attention of the authorities as they are kept under close surveillance and the authorities are known to suppress cultural expressions and events. Also, this harassment can include monitoring and summons for questioning or arrest.

6. Further, the applicant stated that the Tribunal accepted the following claims made by the applicant:

   a. On the day of the protest for Kurdish activist Farzad the applicant ‘was questioned and possibly briefly detained and subject to some limited mistreatment at the time of his arrest in May 2010’ and that ‘after being investigated’ he was released: CB 587, [49].

   b. In February 2011 the applicant was ‘briefly detained… as he claimed’ but not for 2 days. He was released after declining to inform on Kurdish political groups in his area.

   c. The applicant had significant mental health issue.

7. The applicant claimed that these factors were highly relevant to the applicant’s fears and claims and that he was at risk of harm due to his membership of a Kurdish political and therefore the Tribunal failed to consider the risk of future harm to the applicant as a failed Iranian Kurdish asylum seeker from a Western country who had previously been detained and questioned in respect of Kurdish activities and/or with mental health issues.

Respondent’s submissions

Response to Ground 1

1. The Respondent submits that the Tribunal’s consideration of previous decisions discloses no error as it:

   a)was aware that the Assessor had, on the basis of the material available to him at the time of making the Assessment, regarded the applicant as a person to whom Australia owed protection obligations; and

   b)the Tribunal was not bound to accept or follow the Assessor’s finding and it was open to the Tribunal to consider additional material that became available to it. The credibility of the applicant was adversely impacted by the additional material but it was open to the Tribunal to make such an assessment in the performance of its fact finding function; and

   c)the Tribunal engaged in merits review of the decision of the Minister’s delegate to refuse to grant the applicant a protection visa. In doing so, it was entitled to refer to the findings of the delegate in its decision although the Tribunal made its own decision and in doing so, made its own finding and gave its own reasons; and

   d)the applicant is impermissibly seeking merits review of the Tribunal’s decision from the Federal Circuit Court.

Response to Ground 2

1. The respondent puts that it was open to the Tribunal to make adverse findings about applicant’s credibility as those credibility findings were findings of fact. One of the significant adverse findings made was in relation to a claim made by the applicant that as a result of publicity about the stoning of a local Iranian woman, he had begun to question Islam and had been imputed as an apostate. In support of his claim, the applicant had supplied video footage to the Department and asserted that it depicted a woman from his local area in Iran who had been subjected to stoning in 2011. The delegate located news reports that identified the woman as an Iraqi who had been subjected to stoning in 2007.

2. The Tribunal at [65] found that the applicant had knowingly provided false information about these claims and that the false assertion about the provenance of the information severely diminished his overall credibility. It was submitted that as such, this affected the Tribunal’s assessment of his other claims which it was open for the Tribunal to do.

Response to Ground 3

1. It was submitted by the respondent that the hypothetical fair-minded and informed person is assumed to be aware of the nature of the Tribunal’s decision and the context in which it is made. It is put by the respondent that the hypothetical fair-minded and informed person would be aware of the nature of the Tribunal’s review proceedings and that, pursuant to s.425(2)(a) of the Act, the Tribunal would not have invited the applicant to a hearing at all unless, on the material available to it, it had already reached a preliminary view unfavourable to the applicant. The Tribunal, in its inquisitorial capacity, was entitled to vigorously test and assess the evidence before it which was a necessary requirement in fulfilling its review role and did not demonstrate apprehended bias.

2. It was said that the conduct of the Tribunal’s hearing and the reason for its decision do not disclose a basis for a reasonable apprehension of bias on the part of the Tribunal and the applicant has not established a reasonable apprehension of a possibility of predisposition of the Tribunal towards a result.

Response to Ground 4

1. The Tribunal rejected the applicant’s claim to face a serious or significant harm in Iran on account of his Kurdish ethnicity. It also rejected the applicant’s claim to face a real chance of serious or significant harm in Iran on account of his status as a failed asylum seeker. The Tribunal also did not accept that the applicant or his family were of any interest to the Iranian authorities. Finally, the Tribunal in its assessment of the applicant’s claims, had regard to the material before it on a cumulative basis.

Decision

1. I am of the view that ground 1 is asking the court to engage in an impermissible merits review by seeking to challenge findings in relation to credibility which were reasonably open to the tribunal.

2. As to the test that must be applied in determining whether the decision of the Tribunal was illogical or irrational, I was referred to Minister for Immigration  v SZMDS (2010) 240 CLR 611 at 647, [130] –[131] per Crennan and Bell JJ as to the meaning of “illogicality” and” irrationality”:

   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. [6]

   [6] See also SZ00R v  The Minister for immigration and Citizenship and  Anor  [2012 ] FCAFC 58 at [15], [84] – [85] and Minister for Immigration and Border Protection v  SZUXN [2016] FCA 516 at [50] –[52]

1. In my view, the decision of the Tribunal discloses that it came to its own decision in relation to the credibility of the delegate and did so on a rational basis. It was not bound to accept the findings of the     Assessor in circumstances where that person was not aware of the material that was before the delegate and the Tribunal which impacted on the credibility of the Applicant. The fact that the Tribunal came to a different conclusion is not a proper basis for asserting that the decision is irrational or illogical or that there jurisdictional error present. It is also the case that the Tribunal did not accept wholesale the findings of the delegate in relation to credit.

Decision: Ground 2

1. Ground 2 of the grounds for review attacked the Tribunal’s findings in relation to the credibility of the applicant. It is said that the credibility findings have caused the Tribunal to reject significant claims made by the applicant without any reasonable or intelligible basis for doing so. It is also said that the Tribunal’s findings that the applicant was not at risk of harm due to his detention in February 2011 and was not owed complimentary protection due to his poor mental health were unreasonable findings, without a proper or intelligible basis.

2. I reject both of those grounds for review. For the reasons stated above, the Tribunal was entitled to make findings in relation to the credibility of the applicant given the findings that it made in relation to the false information that the applicant had provided to the delegate and the Assessor being the video footage of a person who the applicant claimed had known and who was alleged to have been subjected to stoning in 2011. Paragraph 65 sets out the Tribunal’s finding in relation to the credibility of the applicant as a result of the information he had provided to the delegate. The Tribunal considered the explanation offered by the applicant’s migration agent and did not accept the explanation. At [63] the Tribunal held:

   “The applicant’s migration agent also said that in the time his firm had been engaged to assist the applicant (from the end of September 2015), he had not been able to obtain full instructions, given the applicant was being moved around detention facilities in Australia. However the applicant apparently had access to a mobile phone, he also had access to landlines in the detention facilities, the Tribunal does not accept the agent was unable to obtain full instructions for any reason he claimed (or at all).”

3. Central to the applicant submissions was the view that the Tribunal should have accepted the findings of the Assessor and rejected the subsequent findings of the delegate. It was submitted at [52] that because the Tribunal referred many times, often approvingly to the delegate’s decision in its findings (see for example paragraphs [40], [47], [57], [59], [64], [70], [75], [80], [83] and [98]), the review function of the Tribunal had miscarried. It was submitted that the Tribunal’s task for review under s.414 of the Act, is to inform for itself and on the material before it, the requisite state of satisfaction under s.65 of the Act in respect of the criterion of (or criteria) for a visa in issue before it.

4. It was submitted that the Tribunal’s reliance on the delegate’s decision affected its ability to undertake its review of the applicant’s case given that the delegate’s findings were improperly made and/or unreasonable. Additionally, it was submitted that the Tribunal’s reliance on the delegate’s decision was unreasonable. In the alternative, it was submitted that the Tribunal’s failure to give any weight or consideration to the Assessor’s findings and recommendations was a failure to take into account a relevant consideration and/or unreasonable. In that regard, the applicant referred to Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 713; Craig v South Australia [1995] HCA 58.

5. The respondent submitted in relation to this ground that the Tribunal was not bound to accept or follow the Assessor’s finding and was perfectly entitled to give little or no weight to the finding if, after the time of the assessment, additional material became available and that material bore adversely on the applicant’s overall credibility. It submitted further that even if the applicant did not and does not agree with the adverse credibility findings, they are findings of fact which were open on the available materials.[7] It was submitted that the Tribunal’s assessment of the applicant’s credibility was a matter for the Tribunal in the performance of its fact-finding function and that there is no reviewable error in the Tribunal simply making a wrong finding of fact. It was submitted that by raising disagreement with adverse credibility findings, the applicant impermissibly asked the court to embark on merits review of the fact-finding of administrative decision makers.

   [7] NADR v the Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAfc 167 [9]; Re Minister for Immigration and Multicultural Affairs; Ex parte Duraisingham [2000] HCA 1

6. I do not accept the submission of the applicant that very little had changed in respect of the applicant’s case between that which was considered by the Assessor and that which was before the Tribunal.

7. An important issue of credibility was reviewed by the Tribunal at a [57] to [65]. This related to an alleged stoning of Sahar Gobadi. In written submissions to the Assessor by the applicant’s then migration agent, it was said that Sahar Gobadi was stoned to death by her family and the local community to protect her families under pressure from the Mullah Qader Qaderi. The applicant’s migration agent had submitted detailed submissions in relation to this incident.[8] The stoning was said to have occurred on 26 May 2011 and the submissions make very detailed claims in relation to the applicant’s knowledge of the events and conversations that he had at and around that time in relation to the stoning. At [42]-[46] of those submissions filed with the Assessor it was stated:

   [8] Court Book, 108-109.

   42. On or around 2 June 2011, the claimant was chatting with Ali and some friends in front of a small shop in Shamshir village called Feisal… During the conversation the group discussed the stoning of Sahar and the Claimant and Ali’s discussions with the Mullah’s. The Claimant and Ali both formally acknowledged they no longer believed in Islam.

   43. On 9 June 2011, the Claimant received a telephone call from a friend called Esmael Azizi (“Esmael”), who was a guard of Mullah Qaderi. Esmael told the Claimant that Qaderi had discovered that the (sic) he and Ali were no longer Muslim and that at the upcoming Friday prayer, Qaderi would announce that the claimant was questioning god and that he would be branded an apostate.

   44. After hearing about the death of Sahar, the claimant believed that it was not unlikely for Mullah Qaderi to declare that he and his cousin should be punished by death. He also feared that his family would be pressured to hand him over to protect family honour.

   45. On the night of 9 June 2011, Ali and the Claimant fled to Tehran.

8. The Tribunal made reference to this evidence and noted that:

   “The IPA assessor noted that there was no proof the video was about the girl mentioned by the applicant nor that the incident occurred when the applicant said it did… However the IPA assessor was prepared to give the applicant the benefit of the doubt and accept the evidence as true.”[9]

   [9] Court Book, 588- 589.

9. The Tribunal noted the searches that the delegate undertook relating to the MP4 video which indicated that the images were in fact of the stoning of another person in Iraq in April 2007. In response to a department letter to the applicant about this, it was claimed that the applicant believed that the video “was a true depiction of the stoning death of Sahar GOBADI in May 2011” and that the applicant was “shown this video by his friend Omid Abdullahi.”[10]

   [10] Court book, 589

10. On the basis of what the Tribunal was aware of in relation to the evidence that the applicant had sought to give in relation to stoning of Sahar Gobadi, it was entitled to make a finding that the applicant’s explanations were false and that was a reason that the applicant was not a generally credible witness.

11. I reject the submission of the applicant that it was not reasonably open to the Tribunal to make the adverse credibility findings that it did or that the rejection of substantial aspects of the applicant’s case was made with no independent or proper foundation for doing so. I do not accept that the findings in relation to credibility were simply a bold assertion made by the Tribunal. When one reads the reasons of the Tribunal, the credibility findings are explained at considerable length and are not irrational or unreasonable. This ground is an attempt to challenge the findings of fact made by the Tribunal on the basis that the applicant believes the findings were wrong. In that sense the applicant is seeking to engage in an impermissible merits review.

12. The ground of review with regards to the Tribunal’s findings concerning a risk of harm due to his detention in February 2011, are similarly an invitation to the court to engage in merits review. It was open to the Tribunal to find that it was not satisfied that a brief period of detention would not cause the applicant to face a real chance of serious or significant harm in the reasonably foreseeable future. The Tribunal has given an explanation for its finding in relation to this matter, that being that any detention that the applicant experienced in February 2011 was of a short duration and that the applicant departed Iran unlawfully using a passport issued in his own name. The Tribunal made particular findings in relation to the applicant’s legal departure from Iran [92]-[94] and those reason should be read in conjunction with the findings that the Tribunal made at [54]–[56]. Further, the Tribunal noted that the applicant had made no claim of any mistreatment during the period of detention [54].

13. At [104] to [105] the Tribunal had considered the medical evidence before it which identified  the applicant as being a person who had been diagnosed with a Major Depressive Episode with psychotic and melancholic features in a medical report dated 25 June 2014. It also considered a health report dated 13 March 2012; a medical report dated 27 October 2015 & 13 January 2015 and a medical report from a Consultant Psychiatrist dated 17 December 2014 which stated the applicant had developed pneumonia and had been on antibiotics. Further, at the hearing, the Tribunal heard evidence from the applicant that he was taking regular medication which included tranquilisers and pain killers and had attempted suicide on a number of occasions.

14. The Tribunal at [109] of its reasons states that the available information to the Tribunal did not indicate that persons who suffer from mental health problem in Iran are treated in a manner that may be termed as persecutory. The Tribunal made its decision having taken into account factors relevant to the applicant’s mental health and at [109] of its decision states that while it accepts that the medical services in Australia are better than those that may be available to the applicant in Iran, it was not satisfied that there was a real chance that the applicant, as a returned asylum seeker, would be denied the mental health services that are available in Iran. In my view, those findings are neither unintelligible or irrational.

15. The applicant asserts that the Tribunal’s findings in relation to the applicant’s lawful departure from Iran are affected by error because   the applicant obtained his passport between March and October 2010 and not after the alleged incident. I accept the submission of the respondent that that finding is an error of fact and does not give rise to a jurisdictional error, nor does it affect the fundamental finding by the Tribunal that the applicant used his passport (whenever it was obtained) to depart lawfully through to Iran airport rather than fleeing Iran by taking  an overland route.  The finding is unaffected by any error of fact.

Finding in relation to Ground 3: Apprehended bias

1. Both the applicant and respondent agreed that in order to establish apprehended bias on the part the Tribunal it must be demonstrated that a fair-minded and informed person might reasonably apprehend that it might not have brought an impartial mind to bear on its decision.[11]

   [11] ADHD Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328 at [14].

2. I was referred to the decision of  Minister for Immigration and Citizenship v MZXPA [2008] FCA 185 per Sundberg J at [13]-[15] where His Honour stated:

   13. The hypothetical fair‑minded and informed person would be aware of the nature of the Tribunal’s review functions and proceedings, and that the Tribunal would not invite an applicant to a hearing unless, on the material available to it, it had already reached a preliminary view unfavourable to the applicant. That follows from s 425 of the Act, which provides in part:

   (1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

   (2)Subsection (1) does not apply if:

   (a)the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it …

   …

   Such a preliminary view does not establish apprehended bias: VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872 at [23] and SZBAE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 965 at [15]‑[16].

   14. An informed and instructed hypothetical person would also know that the Tribunal is an inquisitorial body, and is not required uncritically to accept an applicant’s claims: Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 596. It is required under the Act, in performing its review function, to consider whether or not it is satisfied that an applicant meets the criteria for a protection visa. If not so satisfied, it must refuse to grant the visa. See Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [16]‑[18]. The Tribunal is accordingly required to assess the probative value of evidence put before it by an applicant. Where the Tribunal perceives weaknesses in that evidence, it is entitled vigorously to test that evidence: Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [30].

   15. Accordingly, under the Act, the expression of a preliminary view, even on a critical matter, does not establish bias. At common law (that is independently of the special features of the Act that bear on the ambit of apprehended bias), the courts have accepted that judges, Tribunals and administrators may properly, and indeed sometimes should, express a preliminary view so as to alert a party to concerns they may have and thus afford the party an opportunity to rebut that view.

3. Counsel for the applicant made submissions in relation to the conduct of the Tribunal in asking questions of the applicant, and in particular, raising issues with the applicant and asking a question and then apparently accepting the answer that was provided without further discussion. An example was given of a question (which appears at page 7, line 25 of the transcript of the proceeding before the Tribunal) in relation to questions regarding the applicant’s education. The passage referred to was as follows:

   MEMBER: So why did you decide not to go to university? Was it because you could not afford it?

   INTERPRETER: Because there was no point in studying further because I’ve got my elder brothers who’ve done further education and they still working in irrelevant areas so there was no point of studying.

   MEMBER: I understand what you’ve said…

4. The submission was made in these terms:[12]

   and he moves on. Again, not a discussion or assessment in speaking to the applicant of claims of discrimination in education and employment but rather putting the question to him, receiving an answer and then indicating:

   I understand what you’ve said. 

   [12] Transcript of Proceedings before this court, p.31 [25]

5. It was put that the failure to engage in further questioning of the applicant, in combination with the findings in relation to credibility, gave rise to a reasonable apprehension of bias. I reject that submission. The hearing before the Tribunal was conducted in circumstances where the applicant must have been aware that concerns had been expressed previously about his credibility and where the applicant knew, having regard to the decision that was under review, that his claims had been the subject of wholesale rejection by the delegate and that issues of credibility were a real and live concern to the Tribunal. The instances of questioning which were referred to by the applicant’s Counsel in submissions, did not exhibit any foreclosing of the Tribunal’s mind and nor was the applicant denied the opportunity to put material before the Tribunal.

6. In my view, there is no material that I have been directed to which establishes that a fair-minded and informed person might reasonably apprehend that the Tribunal had closed its mind and considering the material before it.

Response to Ground 4

1. As to ground 4, that to the Tribunal committed a jurisdictional error by having failed to consider an integer of the applicant’s claims or failed to deal with the applicant’s claims, in my view, the Tribunal addressed the claims which the applicant had advanced before it. The Tribunal specifically considered and rejected the applicant’s claims that he faced a real chance or of serious or significant harm in Iran on account of his Kurdish ethnicity and also rejected the applicant’s claim to face a real chance of serious or significant harm in Iran on account of his status as a failed asylum seeker. The Tribunal did not accept that the applicant or his family were of any interest to the Iranian authorities (CB 602 at [118]).

2. Unless the applicant has made a claim himself, or that a claim emerges clearly from the materials before the decision maker, there is no obligation on the decision maker to exercise its own powers to create and construe a claim in any particular way.[13] In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs,[14] the Full Court stated at [46] –[47]:

   46. It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons.  It may be that some evidence is irrelevant to the criteria and some contentions misconceived.   Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised ‘with an eye keenly attuned to error’. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.

   47. The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons.  But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point.  It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected.  Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

   [13] NABE v the Minister for Immigration and Multicultural and Indigenous Affairs (2) [2004] FCAFC 263 at [60] – [61] and [68].

   [14] [2003] FCAFC 184 at [46] – [47]

1. It is apparent from its decision that the Tribunal had dealt with matters in the course of the decision and then made cumulative findings that draw in the earlier references to matters. For instance, [103] is in effect a cumulative finding where the Tribunal has stated:

   Accordingly I am not satisfied on return to Iran there is a real chance the applicant would suffer any real harm for any reason discussed above.

2. The reference to “discussed above” is clearly a reference to the matters set out in the decision in paragraphs [97] – [102].

3. Similarly in [110] the Tribunal states:

   After considering the evidence, the Tribunal is not satisfied that there is a real chance that such health services that are available in Iran, would be withheld from him for a refugee reason. Neither am I satisfied there is a real chance applicant would suffer serious harm in Iran, for any reason discussed above.

4. That conclusion is plainly based on the findings and discussion at [104] – [109] of the Tribunal’s reasons. In my view, there is no substance to the ground that the Tribunal failed to deal with the case that the applicant had placed before it.

5. In view of these reasons, the court will make orders that the application be dismissed and that the applicant pay the respondent’s costs.

I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Judge McNab

Date: 19 August 2016