APL18 v Minister for Home Affairs - [2019] FCCA 1668

FEDERAL CIRCUIT COURT OF AUSTRALIA

APL18 v MINISTER FOR HOME AFFAIRS & ANOR

[2019] FCCA 1668

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Iran – applicant not believed – whether the review by the Immigration Assessment Authority was procedurally unfair or unreasonable or whether the Authority was biased considered – whether the Authority breached s.473DD of the Migration Act 1958 (Cth) considered – no jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.5, 5H, 36, 473CB, 473DC, 473DD

Cases cited:

Applicant A v Minister for Immigration (1997) 190 CLR 225

AQU17 v Minister for Immigration (2018) 162 ALD 442

Chan v Minister for Immigration [1989] HCA 62; (1989) 169 CLR 379

CHF16 v Minister for Immigration (2017) 257 FCR 148; [2017] FCAFC 192

DHV16 v Minister for Immigration & Anor [2017] FCCA 349

Minister for Immigration v BBS16 (2017) 257 FCR 111; [2017] FCAFC 176

Minister for Immigration v CLV16 (2018) 260 FCR 482; [2018] FCAFC 80

Plaintiff M174/2016 v Minister for Immigration (2018) 353 ALR 600

Semunigus v Minister for Immigration [1999] FCA 422

Applicant:

APL18

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 328 of 2018

Judgment of:

Judge Driver

Hearing date:

17 June 2019

Delivered at:

Sydney

Delivered on:

5 September 2019

REPRESENTATION

Solicitors for the Applicant:

Mr N Daawar of Ariana Defence Lawyers

Counsel for the Respondents:

Mr H P T Bevan

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application filed on 9 February 2018 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 328 of 2018

APL18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 18 January 2018. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from the Minister’s initial outline of legal submissions filed on 23 November 2018.
The applicant, a citizen of Iran, arrived at Christmas Island on 11 March 2013, as an unauthorised maritime arrival.[1]
[1] Court Book (CB) 193
On 31 March 2016, the applicant applied for a SHEV,[2] which was refused by the delegate on 26 May 2017.[3] On 31 May 2017, the matter was referred to the Authority.[4] On 27 June 2017, the Authority received written submissions from the applicant.[5] On 3 September 2017 and 27 December 2017, the applicant provided further documents to the Authority.[6]
[2] Safe Haven Enterprise Visa
[3] CB 77-113; 193-208
[4] CB 210
[5] CB 217-221
[6] CB 223-229
On 18 January 2018, the Authority affirmed the decision under review.[7]
[7] CB 232-244

Applicant’s claims

The applicant’s claims for protection were set out in a statutory declaration accompanying his visa application.[8] In summary, the applicant made the following claims:
a)the applicant was a Bakhtiyari Shia Muslim, born in the Khuzestan Province.[9] His family was not very religious.[10] He was agnostic with his perspective shifting toward atheist ideology;[11]
b)in Iran, the applicant considered photography to be an outlet from the oppressive Islamic regime. His interest prompted him to take photography courses, enter competitions and join photo journalist societies;[12]
c)he left Iran because he was being investigated by the authorities due to his political activities against the Islamic regime and due to his religious views as an agnostic;[13]
d)on one occasion, the applicant was taking photos of children in the park for a photography competition when he was confronted by a Moral Authority Park Officer.[14] After being questioned by the park officer, he was escorted to his home by several other intelligence officers who searched his home and computer.[15] His laptop, camera, passport and hard drive were seized.[16] These items contained controversial photos and prohibited information from banned websites.[17] The following week, he was questioned by the Herasat[18] at his workplace.[19] As well as asking him why he did not attend prayers and was not a member of the Basij,[20] the Herasat asked him about his photography.[21]
[8] CB 114-117
[9] CB 114, [1]-[2]
[10] CB 114, [8]
[11] CB 114, [3]
[12] CB 114-115, [10]-[13]
[13] CB 117, [26]
[14] CB 115, [13]
[15] CB 115, [10]-[14]
[16] CB 115, [13]-[14]
[17] CB 115, [15]
[18] local state intelligence bureau
[19] CB 115, [18]
[20] a pro-government paramilitary militia
[21] CB 115-116, [18]-[22]

Authority’s decision

The Authority’s reasons are set out at [2]-[40] of the decision and principally at [10]-[41].[22] The Authority’s reasons about new information are set out at [2]-[9].[23]
[22] CB 232-244
[23] CB 233-235

Information before the Authority

The Authority had regard to the material referred by the Secretary under s.473CB of the Migration Act 1958 (Cth) (Migration Act).[24] The Authority also noted that the applicant had provided a submission on 27 June 2017.[25] To the extent that the submissions referred to the claims before the delegate, the Authority considered that they did not constitute new information and had regard to them.[26]
[24] at [2]
[25] at [3]
[26] at [3]
The Authority noted that the submissions contained three new claims:[27]
a)that the applicant received his passport and ticket to depart Iran in an envelope, which also contained a note with instructions for his departure;
b)that he was involved with student activities at university and gave his photographs to the activists to send to news agencies; and
c)that he had been a volunteer member of the New South Wales State Emergency Service since 2015.
[27] at [5]-[7]
Insofar as the first two of the claims were concerned, the Authority was not satisfied that these claims could not have been provided to the delegate.[28] In so finding, the Authority noted that the applicant had proffered no explanation for his failure to advance the claims sooner and that the applicant had not satisfied it that it was personal credible information or that there were exceptional circumstances to justify considering it.[29] The Authority found that the third claim was not new information because it was not relevant to its assessment of the applicant’s claims.[30]
[28] at [4]
[29] at [4]-[6]
[30] at [7]; s.473DC(1)(b)
The Authority referred to a baptism certificate it had received in the applicant’s name on 3 September 2017.[31] The Authority accepted that the document was new information as it was not before the delegate when the delegate made the decision and the Authority considered that it may be relevant. The Authority found that this document referred to an event that post-dated the delegate’s decision and was therefore satisfied that the document was not, and could not have been, provided to the delegate prior to the decision. However, the Authority went on to find that the applicant had not previously claimed before the delegate to have any interest in Christianity and instead claimed to be agnostic with tendencies towards atheism. The Authority noted that the applicant did not provide an explanation accompanying the Baptism certificate as to when or how his interest in Christianity developed.[32] It found that there were no exceptional circumstances to justify considering the new information.[33]
[31] at [8]; the Authority incorrectly gave the date as 4 September
[32] at [8]
[33] at [8]
On 27 December 2017,[34] the Authority received a report, dated 18 December 2017, which indicated that the applicant had been receiving treatment from the New South Wales Service for the Treatment and Rehabilitation of Torture and Trauma Survivors.[35] The Authority found that the report was new information that could not have been provided to the delegate before they made their decision.[36] However, it found that there were no exceptional circumstances to justify considering the new information, because while the report may have indicated that the applicant was experiencing psychological symptoms in response to the delegate’s decision and Authority review, it did not elaborate on the applicant’s fear for his future safety.[37]
[34] see CB 225
[35] STARTTS; at [9]
[36] at [9]
[37] at [9]

Consideration of claims

The Authority accepted the applicant’s background and identity was as claimed.[38] The Authority also accepted the applicant’s claims that:[39]
a)he was agnostic and had also considered atheist ideologies;
b)his family was not religious;
c)his brother was an atheist; and
d)he did not participate in Islamic prayer or attend the mosque.
[38] at [11]-[13]
[39] at [16]
The Authority considered whether the applicant’s lack of belief in Islam/religion would bring him to the adverse attention of authorities in Iran so as to expose him to a risk of persecution. Citing country information, the Authority found that cases of apostasy being prosecuted were rare and that those at risk were apostates who sought to publicise their views.[40] Noting that it was not satisfied that the applicant would engage in public proselytising, the Authority was not satisfied that the applicant would come to the adverse attention of the community or Iranian authorities on account of being secular.[41]
[40] at [32]
[41] at [33]
The Authority accepted that the applicant pursued photography as a hobby.[42] However, it found that he had exaggerated his level of interest and involvement.[43] The Authority noted that while the applicant was generally knowledgeable about photography, he had very little documentary evidence to support his claims and was unable to give specific details of the courses and/or workshops he had purportedly completed.[44] The Authority was not satisfied that the applicant used photography as a means of expressing his religious and political opinion nor that he would do so if he returned to Iran.[45]
[42] at [19]
[43] at [19] and [27]
[44] at [18]
[45] at [33]
The Authority rejected all of the applicant’s other claims as false.[46] In so doing, the Authority identified a number of concerns it had with the applicant’s evidence, namely:
[46] at [27]-[28]
a)the applicant’s incongruous evidence that he was afforded room to make mistakes at his workplace in light of his tenure, yet he was questioned by the Herasat following what was seemingly his first incident in eight years;[47]
[47] at [24]
b)there was no credible evidence before it linking the incident in the park to the workplace investigation and suspension.[48] In this regard, the Authority noted that:
[48] at [27]
i)the applicant had not suggested that the Herasat had referred to the incident in the park when they questioned him; and
ii)he had indicated that he had been given no explanation for his suspension;
c)the applicant’s seemingly implausible evidence that the security officers in the park “became interested” upon hearing that the applicant was taking pictures for a competition, notwithstanding the fact that the applicant had not raised any moral, political or religious concerns about his photography project;[49]
d)the lack of credible information regarding why the park security officers had opted for the ostensibly drastic course of action, particularly in circumstances where the applicant had claimed to have been merely taking photographs at the park for a competition that was not otherwise associated with any moral, political or religious agenda;[50]
e)the applicant’s inconsistent evidence concerning the contents of his laptop and hard drive.[51] The Authority noted that at his entry interview, the applicant had indicated that he did not think there was anything “dangerous” on his laptop and/or hard drive but in his SHEV application and interview, he claimed that he had an array of contentious and proactive pictures.[52] In this regard, the Authority found that the applicant formulated such a claim in a bid to exaggerate and enhance his profile;[53]
f)the applicant’s evidence that he would deliberately access and download information from banned websites at his government workplace, whilst knowing that the online sphere was heavily monitored by the state;[54]
g)the applicant’s inconsistent evidence in relation to why he had been suspended from work.[55] In this regard, the Authority noted that while applicant had initially indicated that he was being investigated for “religious selectivity assessment”, in his SHEV application and interview, he suggested that he did not know why he had been suspended;[56]
h)the applicant’s incongruous evidence regarding the situation he left in Iran. On one hand, the Authority noted that the applicant’s evidence was that he had been subject to heavy investigation and that “it was not a good situation”, but on the other he had indicated that his parents were retiring and planning his sister’s wedding.[57]
[49] at [24]
[50] at [24]
[51] at [25]
[52] at [25]
[53] at [25]
[54] at [25]
[55] at [25]
[56] at [25]
[57] at [26]
Further, the Authority was not satisfied that the applicant had expressed either his political opinion or his religious beliefs during his residence in Australia.[58]
[58] at [28]
Whilst not expressly raised by the applicant, the Authority also considered whether the applicant was owed protection by reason of his status as a failed asylum seeker.[59] Having regard to country information, the Authority found that while the applicant might be questioned upon return to Iran, he did not have a profile such that the authorities would impute him with an anti-regime or anti-Islamic opinion and/or bring him to the adverse attention of Iranian authorities.[60]
[59] at [34]
[60] at [34]
Having regard to its findings cumulatively, the Authority found that the applicant did not meet the definition of refugee in s.5H(1) of the Migration Act and therefore did not meet the criterion in s.36(2)(a) of the Migration Act.[61]
[61] at [33]-[35]
In considering whether the applicant was owed protection obligations under s.36(2)(aa), the Authority relied on its anterior findings of fact relating to the applicant’s refugee claims in determining that it was not satisfied that the applicant was entitled to complementary protection under the Migration Act.[62]
[62] at [34]-[41]

The current proceedings

These proceedings began with a show cause application filed on 9 February 2018. That application advanced two grounds of review:
1. Breach of Procedural Fairness
The Minister or his delegate breached procedural Fairness rule in particular "No Evidence Rule" as did not act fairly in reaching to the unreasonable decision did not accepting the evidence visa application in the absence of any contrary evidence to the applicant claim. This decision was taken in the absence of any logically probative adverse evidence or information as required by the principle of Procedural Fairness. The decision makers did not put sufficient weight to those evidence in reaching their decision. The decision maker did not have real insight of the relevant factors and information and the culture, way of social life, security and political circumstance and religious restrictions and dictatorship in Iran by the Iranian Authorities. The decision maker should have given the benefit of the doubt to the applicant and accept his account of the persecution and the chance of harm to him in Iran as recommended by the UNHCR guidelines too. In contrast his decision was based on the decision makers' subjective opinion in absence of relevant country information.
The Second Respondent failed to correct the failure and error of the First Respondent affirming the decision of the Minister, consequently made the same error as the First Respondent and consequently breached the rule of Procedural Fairness.
2. Biased
The Second Respondent was made a judicial error in reaching their decision which made a biased decision by not taking very relevant evidence and information that has crucial effect on the applicant life if he is returned.
The applicant was born as Shia Muslim but he was against Islam and he was an agnostic man while living in Iran which led to his persecution along with his political views by the Iranian authorities. He did not have the opportunity to explore other religions while in Iran. After arrival to Australia with his agnostic views he made his claim for protection and later for SHEV. While his application was under process he was encouraged to explore other religions. While exploring other religion he has come to a decision and accept Christianity as the way of his life and converted to Christianity. That had occurred after his immigration interview. But when his application was refused and referred to IAA the applicant was baptised at this stage and he informed the IAA of the change in his life and his beliefs and provided the IAA his baptism certificate and evidence. The IAA ignored the evidence and ignored the fact that by returning to Iran a convert from Islam to Christianity will be hanged by the Iranian authorities under the Sharia Law in Iran. The IAA in fact ignored the applicant fundamental human right of freely choosing his belief. The IAA ignored that persecution on the ground of belief is one of the fifth ground defining a refugee under the Australian immigration laws and UN Refugee convention. It was required the IAA having these crucial evidence into consideration and was appropriate to remit the matter to the Minister for assessment. But IAA did not do that. Accordingly the decision of the IAA was biased in all aspect.
(errors in original)
The matter came before me for a show cause hearing on 30 November 2018. At that time, I was minded to accept the Minister’s submissions concerning the lack of merit in the grounds of review.
Ground 1 raises several complaints, which are addressed in turn.
First, the applicant contends that the Authority’s findings were unreasonable, because they were not based on evidence. The Authority was not required to have rebutting evidence before it in order to not be satisfied of the applicant’s claims.[63] Nor was the Authority required to accept uncritically any and all claims made by the applicant.[64] The Authority’s findings were based, and open, on the evidence before it, including the relevant country information, and it could not be said that there was an “absence of logical connection” between the Authority’s reasoning and the evidence before it.[65]
[63] Selvadurai v Minister for Immigration (1994) 34 ALD 347 at 348 per Heerey J
[64] Randhawa v Minister for Immigration (1994) 124 ALR 265 at 278
[65] Minister for Immigration v SZMDS (2010) 240 CLR 611
Secondly, the applicant contends that the Authority did not give sufficient weight to the evidence before it. It is well established that the weight to be accorded to a particular piece of evidence is a matter for the Authority as part of its fact finding function.[66] A mere disagreement with the weight given by the Authority to particular claims or evidence does not engage the Court’s judicial review jurisdiction.[67]
[66] NAHI v Minister for Immigration [2004] FCAFC 10 at [13] per Gray, Tamberlin and Lander JJ; Tran v Minister for Immigration [2004] FCAFC 297; Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
[67] Minister for Immigration v Liang (1996) 185 CLR 259 at 291–292, NBKT v Minister for Immigration [2006] FCAFC 195 at [81]; Kopalapillai v Minister for Immigration (1998) 86 FCR 547 at 552 and 559; SZNNK v Minister for Immigration [2009] FCA 1386 at [20]

Thirdly, the applicant contends that the Authority failed to give the applicant the “benefit of the doubt”, as recommended by the UNHCR[68] guidelines. A fair reading of the Authority’s decision record does not reveal that the Authority had any material doubt about its findings and conclusions. The Authority considered the different aspects of the applicant’s account but was not satisfied that he would be of any adverse interest to the authorities on his return to Iran.[69] In these circumstances, the Authority was not required to ask the question “what if I am wrong?” or to otherwise give the applicant “the benefit of the doubt” in assessing his claims.[70] It should be noted that the “UNHCR guidelines”, as referred to by the applicant in this ground, do not have binding force in Australian law.[71] Ground 1 fails to identify any error on the part of the Authority.
[68] United Nations High Commissioner for Refugees
[69] CB 240-242, at [27]-[28] and [33]
[70] Minister for Immigration v Rajalingam (1999) 93 FCR 220; [1999] FCA 719
[71] Chan v Minister for Immigration [1989] HCA 62; (1989) 169 CLR 379 at 392, per Mason CJ; Applicant A v Minister for Immigration (1997) 190 CLR 225 at 302, per Kirby J, Semunigus v Minister for Immigration [1999] FCA 422 at [8]-[9], per Finn J
By Ground 2, the applicant contends that the Authority was biased because it refused to consider new information, namely that the applicant had converted to Christianity. The ground makes additional assertions as to the merits of the applicant’s claim regarding Christianity.
No case for the relief sought is identified by this ground. The Authority did not “ignore” this evidence as asserted by the applicant. Rather, the Authority undertook an assessment of the baptism certificate pursuant to s.473DD and made findings that were open to it. Having determined that there were not exceptional circumstances to justify considering the baptism certificate, the Authority was not permitted to consider it pursuant to s.473DD. Merely refusing to take into account the baptism certificate, as the Authority was required to do following its assessment under s.473DD, does not support an allegation of bias. The contentions raised by this ground otherwise rise no higher than to seek impermissible merits review.
I nevertheless made a show cause order under rule 44.12(1)(b) of the Federal Circuit Court Rules 2001 (Cth), requiring the Minister to show cause why relief should not be granted in relation to the issue of the Authority’s compliance with s.473DD of the Migration Act. I took into account both the extent of new information provided by the applicant to the Authority and the detail of the Authority’s reasons in relation to that new information at [3]-[9] of its reasons.[72]
[72] CB 233-235
For the purposes of the final hearing in this matter, I had before me the court book filed on 29 March 2018 as evidence and the written submissions of the Minister and the applicant, which were augmented orally.

Consideration

Although the applicant’s written submissions refer to the allegation of bias, that was not pressed at the trial. Further, although the applicant’s submissions touched upon the STARTTS report provided by the applicant, his representative did not cavil with my proposition that that report did not on its face carry any particular significance for the applicant’s claims for protection. Rather, however, the applicant focused his attention on the baptismal certificate which was dealt with by the Authority at [8] of its reasons:[73]
On 4 September 2017 the IAA received a certificate of Baptism in the applicant’s name which states that he was baptised on the 5 August 2017 at the Centre of New Life Sydney. I am satisfied this document is new information as it was not before the Minister when the Minister made the decision and I consider it may be relevant. As the documents refers to an event that post-dates the delegate’s decision, I am satisfied this document was not, and could not have been, provided to the Minister before the Minister made the decision. Nonetheless, the applicant did not previously claim before the Minister to have any interest in Christianity but had claimed to be agnostic with tendencies towards atheism. The applicant has provided no accompanying information or explanation in relation to this baptism certificate in regards to when or how his interest in Christianity developed. I am not satisfied that there are exceptional circumstances to justify considering this new information and I have not had regard to it.
[73] CB 235
In essence, the applicant contends that the baptismal certificate carried sufficient importance on its face (in the context of the applicant’s prior claims of apostasy) that the Authority should have found that it was credible personal information and that there were exceptional circumstances for receiving it.
While there are circumstances, in my opinion, where a document can be said to speak for itself and require no explanation or elaboration of the reasons for its presentation,[74] this is not such a case. I agree with the submissions of the Minister on the certificate and the manner in which the Authority dealt with it.
[74] DHV16 v Minister for Immigration & Anor [2019] FCCA 349 at [93]
On 3 September 2017, the applicant sent a baptism certificate, dated 5 August 2017, to the Authority.[75] The covering email simply comprised the applicant’s reference number and a request to “see the attachment”.
[75] CB 223-224
The Authority was satisfied that the certificate was “new information” because it was not before the Minister and may be relevant and, as it post-dated the delegate’s decision, the Authority was satisfied that it could not have been provided to the Minister.[76]
[76] CB 235 [8]
The Authority identified that the applicant “did not previously claim before the Minister to have any interest in Christianity”.[77] To the contrary, and as the Authority went to state, the applicant “had claimed to be agnostic with tendencies towards atheism”.[78] The Authority noted that there was “no accompanying information or explanation … in regards to when or how his interest in Christianity developed”.
[77] CB 235 [8]
[78] CB 235 [8]
Against that background, the Authority concluded that it was not satisfied that there are exceptional circumstances.
The Authority’s finding as to s.473DD(a) is dispositive.[79] Read fairly, the Authority’s reasons disclose that it considered the certificate in the context of the applicant’s broader claims in circumstances where the applicant had conspicuously failed to give any explanation as to how the certificate tied in with his claims to fear harm in Iran. In so doing, the Authority properly assessed the question of “exceptional circumstances” by reference to the material before it, especially in the context of the applicant’s claims. The Authority correctly dealt with the baptism certificate as an item of “new information”.
[79] see eg CHF16 v Minister for Immigration (2017) 257 FCR 148; [2017] FCAFC 192 at [46]
As I put to the representatives at the trial, if the Authority had taken the baptism certificate into account, it would have raised more questions than it answered. In order to answer those questions, the Authority might have needed to consider getting further information, either in writing or orally from the applicant in order to explain the significance of the certificate. The scheme of Part 7AA of the Migration Act is that significant new information, particularly where it is inconsistent with earlier claims, needs to be explained when it is presented rather than left dangling before the Authority with an unspoken invitation to make further enquiries.
I see no error in the Authority’s approach to the certificate.
I also agree with the Minister’s submissions concerning the other new information provided by the applicant.
On 26 June 2017, the applicant sent a submission to the Authority.[80]
[80] CB 218-221
To the extent that that document referred to claims that were already raised by the applicant before the Minister, the Authority found that it was not “new information” and stated that it had regard to it.[81]
[81] CB 233 [3]
The Authority went on to identify those parts of the document which did contain “new information”. It was correct to do so.[82]
[82] see Minister for Immigration v CLV16 (2018) 260 FCR 482; [2018] FCAFC 80 at [54]
The first item of “new information” was a claim that the applicant paid US$6,000 for his passport and a written note with instructions to facilitate his departure from the airport in Tehran.
The Authority considered this claim against what the applicant had previously said about payment of money. First, the Authority identified that, in his entry interview, he had given a different and inconsistent account, namely, payment of US$8,000 of which $2,000 was for a passport and the remainder for the trip. Next, the Authority noted that he was specifically asked by the delegate whether he had any difficulties when he left through the airport and his response was that his passport was stamped and he was not questioned. In this context, the Authority had earlier noted that the applicant had not given “any explanation as to why this information was not provided to the Minister”.
In these circumstances, the Authority concluded that it was not satisfied that the “new information is credible personal information”, within the meaning of s.473DD(b)(ii).[83]
[83] see the definition of “personal information” in s.5, as explained by the High Court in Plaintiff M174/2016 v Minister for Immigration (2018) 353 ALR 600 at [33]-[34]
In addition to this finding, the Authority was also not satisfied that there were “exceptional circumstances” to justify considering the information. In reaching its conclusion, the Authority had regard to the inconsistency of the new information with the applicant’s previous statements about the circumstances of his departure, as well as the lack of explanation for its late provision. There is nothing to suggest that the Authority adopted an impermissibly narrow construction of “exceptional circumstances”.[84]
[84] cfMinister for Immigration v BBS16 (2017) 257 FCR 111; [2017] FCAFC 176. To the contrary, its conclusion is analogous to that in AQU17 v Minister for Immigration (2018) 162 ALD 442 at [17]
For these reasons, the Authority correctly dealt with this first item of “new information”.
The second and third items of “new information” derived from the submission were summarised by the Authority at [5].[85] Broadly, these were:
a)claims relating to his activities as a photographer (being an implied political opinion claim), especially relating to conditions of deprivation and hardship facing Ahwaz Arabs; and
b)a claim that, since he came to Australia, his workplace had contacted his family asking about him and that they had moved to a new area.
[85] CB 233-234
The Authority dealt with these aspects at [6].[86] The Authority:
a)identified that, again, the applicant had not provided any explanation as to why these claims were not provided to the Minister “particularly given that the majority of the new claims refer to events that occurred prior to his departure”;
b)noted that the applicant had not given any timeframe as to “when” his family told him about the calls or their move;
c)took into account that, during the interview with the delegate, the applicant gave a different account with respect to his family, saying that they “were busy and excited preparing for his sister’s wedding and that if anything had happened in relation to his situation, they had not told him”;
d)gave weight to the applicant’s claim during the entry interview that “he did not have any involvement with Arab groups supporting Ahwaz independence”, which was in contrast to the “new information”; and
e)noted that the applicant had not provided any supporting evidence in respect of these new claims.
[86] CB 234
It was against that background that the Authority concluded that the applicant had not satisfied it that the “new information” was “credible personal information”. It also concluded that there were not “exceptional circumstances”.
The Authority’s conclusions with respect to both limbs of s.473DD do not reveal error. The Authority noted the absence of an explanation by the applicant for the failure to give the information earlier. The failure to do so was especially significant given the majority related to events prior to his departure from Iran. The Authority assessed the “new information”, noting both its inconsistencies with what the applicant had previously advanced and its lack of other evidence to support the new claims. On these bases, the Authority found that s.473DD(b)(ii) was not satisfied. While this was sufficient, it nevertheless went on to find that s.473DD(a) was also not satisfied. This latter finding should be viewed in the context of the matters previously referred to by the Authority. As noted above with respect to the first item, the Authority’s approach is consistent with both BBS16 and AQU17.
The third item identified in the submission was the applicant’s claim to be a member of the NSW State Emergency Service.[87] The Authority was not satisfied that this may be relevant and therefore concluded that it was not “new information” within the meaning of s.473DC(1). The explanation given by the applicant for his participation in the SES was that he “wants to contribute to society”.[88] Accepting this is so, it is not probative of the question of whether the applicant faces a real chance or risk of serious or significant harm if he were to return to Iran. The Authority’s conclusion was correct.
[87] CB 234 [7]
[88] CB 234 [7]
On 27 December 2017, the applicant provided a psychologist’s report dated 18 December 2017.[89]
[89] CB 225-229
The Authority set out the effect of the report.[90] The Authority was satisfied that it was “new information” (as it was not before the Minister and may be relevant, under s.473DC(1)) and also that it was not, and could not have been provided to the Minister before the delegate’s decision (under s.473DD(b)(i)).
[90] CB 235 [9]
While the Authority accepted the information in the report that the applicant was experiencing the symptoms described, it found that there were not exceptional circumstances under s.473DD(a). The Authority reasoned that, while the report referred to the applicant’s fear for his future safety, it did not elaborate on this or in any way develop the applicant’s claims for protection. In effect, the Authority found that, having considered its contents, the report was not probative of the applicant’s claims for protection. Having regard to the report’s contents (especially the lack of further information or elaboration with respect to the applicant’s claims), the Authority’s conclusion was both open and in accordance with the authorities concerning “exceptional circumstances”.

Conclusion

The applicant has not established that the decision of the Authority is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.

I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate:

Date: 5 September 2019