AWO19 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 27
Federal Circuit and Family Court of Australia
(DIVISION 2)
AWO19 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 27
File number(s): SYG 498 of 2019 Judgment of: JUDGE D HUMPHREYS Date of judgment: 30 January 2023 Catchwords: MIGRATION – Immigration Assessment Authority – Safe Haven Enterprise Class XE (Protection) visa – whether jurisdictional error is made out – jurisdictional error made out – the application is upheld – orders made. Legislation: Migration Act 1958 (Cth) s 473CB(1)(c) Cases cited: Abebe v Commonwealth of Australia (199) 197 CLR 510
ABT17 v Minister for Immigration and Border Protection [2020] HCA34
ANJ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1277
CQR17 v Minister for Immigration and Border Protection [2019] FCAFC 61
CUK19 v Minister for Home Affairs and Anor
Daya v Cx Reinsure Co Ltd [2012] NSWSC 1616
EVS17 v Minister for Immigration and Border Protection [2019] FCAFC 20
DIN18 v Minister for Immigration and Anor (DIN18) [2021] FCCA 1
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389
GJM18 v Minister for Immigration and Anor [2020] FCCA 632
Shanker v R [2018] VSCA 94
Division: Division 2 General Federal Law Number of paragraphs: 90 Date of last submission/s: 12 December 2022 Date of hearing: 12 December 2022 Place: Sydney Counsel for the Applicant: Mr Mostafa briefed by Varess Counsel for the Respondents: Mr Kaplan briefed by Hwl Ebsworth Lawyers ORDERS
SYG 498 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AWO19
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
JUDGE D HUMPHREYS
DATE OF ORDER:
30 January 2023
THE COURT ORDERS THAT:
1.The name of the First Respondent be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The application is upheld.
3.Writ of certiorari issue, quashing the 15 February 2019 decision of the second respondent (Authority) affirming the decision of a delegate (Delegate) (Delegate’s Decision) of the first respondent (Minister) to refuse to grant the applicant a protection visa (Authority’s Decision).
4.A writ of mandamus issue, remitting the matter to the Authority and requiring it to review the Delegate’s Decision according to law.
5.A writ of prohibition issue, prohibiting the Minster and his delegates, servants and agents from acting upon or giving effect to the Authority’s Decision.
6.The First Respondent is to pay the Applicants costs as agreed or assessed.
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 HUMPHREYS
Introduction
This an application for judicial review of a decision of the Immigration Assessment Authority (“the Authority”) of 15 December 2019 to affirm a decision of a delegate of the Minister for Immigration (“the delegate”) not to grant the applicant a Safe Haven Enterprise Class XE (Protection) visa (“SHEV”).
The Court notes that a previous decision of the Authority relating to the applicant was quashed by this Court (differently constituted) on 31 October 2018.
Background
The matter has a complicated history. The applicant is a citizen of the Islamic Republic of Iran. The applicant arrived in Australia on 13 October 2012 as an unauthorised maritime arrival. The applicant travelled to Australia by boat with his brother. Upon arrival both the applicant and his brother underwent an irregular maritime arrival interview. It was claimed that these interviews were abbreviated and the applicant and his brother were not allowed to tell their full story.
On 23 March 2016, the applicant made an application for a Protection visa. The applicant’s brother made a similar application on the same day. Some of the claims made by the applicant were also made by his brother. The applicant’s brother made some different claims as well.
On 26 June 2017 a delegate of the Minister for Immigration, made a decision to refuse to grant a Protection visa to the applicant. On the same day, the same delegate refused to grant a Protection visa to the applicant’s brother. The same delegate who made each decision had interviewed each of the applicant and his brother, separately on the same day being, 29 May 2017.
In particular, the brother made claims that his father had been struck with a machete, acid had been thrown at their home and their sister had been beaten. Photographs of the father showing a wound to his chest were shown to the delegate by the brother.
The Minister referred both the decision in relation to the applicant and his brother to the Authority for merits review. On 9 April 2018, the Authority affirmed the delegate’s decision to refuse the applicant’s brother a Protection visa.
On 23 April 2018, the Authority affirmed the delegate’s decision to refuse the applicant a Protection visa. On 31 October 2018, the Authority’s decision was quashed by this Court by consent (CUK19 v Minister for Home Affairs and Anor - SYG1493/2018). An order was made remitting the matter back to the Authority to determine according to law.
The basis of this order was that some material given or shown to the delegate was not provided to the Authority by the Secretary under s 473CB(1)(b) of the Migration Act 1958 (“the Act”). This included a photograph of the applicant with an injured mouth and broken teeth, a document referred to as a ‘Court ruling’ and documents or records referred to by the applicant or his representative at interviews on two separate occasions, in relation to a threat made to the applicant’s sister and the applicant’s sister being beaten.
On 25 February 2019, the Authority, differently constituted, affirmed the delegate’s decision to refuse the applicant a Protection visa. The applicant again seeks judicial review of the Authority’s decision.
The Immigration Assessment Authority’s Decision
Given the matters pleaded in the grounds of judicial review set out below, it is necessary to summarise the Authority’s decision in some detail.
After setting out the relevant background history, paragraphs 4 through to 32 of the decision record, deal with new information before the Authority. At paragraph 6, the Authority noted the material that was not previously provided to the Authority was requested, however the delegate replied that they did not have a copy of that material. The material was subsequently provided by the applicant’s representative. The Authority determined this was not new information, as it did not introduce any new or different facts, but was merely the vehicle by which the missing documents were provided to the Authority. The Court notes at this stage, that the inability of the delegate to provide the missing material is troubling.
Paragraphs 7-9 of the Authority’s decision, deal with written submissions made by the applicant’s representatives and a Statutory Declaration made by the applicant. The Authority considered the material as it was not “new information” for the purposes of s 473DD of the Act and took the material into account.
Paragraphs 10-13 of the decision record, deal with new information relating to the applicant’s first migration agent and the fact that the agent’s licence had been cancelled by the Migration Agents Registration Authority on 18 December 2018.The Authority determined this was new information that could not have been provided to the delegate. The Authority determined to accept this information and as a result, material that clarified the applicant’s claims. The Authority however determined not to accept a general complaint in respect of the agent or a newspaper report from January 2019 concerning a general issue of ‘migration agents swindling desperate customers’.
Paragraphs 13 to 25 of the decision record, deal with new information as to the applicant’s Christian conversion. This included a Certificate of Baptism dated 17 June 2018. A photograph of the baptism, and a letter from Pastor P of the Liberty Baptist Church. This material testified that the applicant regularly attended Church, has told his friends and family in Iran of his conversion and posts ‘bible truths’ on Facebook.
On 20 January 2019, the Authority received further new information in the form of a Statutory Declaration from the applicant that he first engaged with Christianity in 2013. The applicant declared that he is outspoken in his beliefs and could not restrict his expression in public of being a convert and a non-believer in Islam.
At paragraph 16 of its decision, the Authority accepted this new information was credible personal information for the purposes of s 473DD(b)(ii) of the Act. However, at paragraph 17, the Authority determined that there were not exceptional circumstances to justify considering this new information. The Authority noted that there was no mention of religion in the applicant’s Protection visa application in March 2016 or in his interview with the delegate or submissions made in July 2017. The Authority determined not to admit information relating to attendance at two Church services, talking about religion with his sister-in-law, attending a Salvation Army event and posting a photograph taken at that event.
Paragraph 18 of the decision record deals with evidence concerning the applicant’s conversion to Christianity in 2018. The Authority was satisfied this information met the test in
s 473DD(b)(i) of the Act. The Authority was concerned as to the speed of the applicant’s conversion to Christianity after 6 years in Australia and 4 years after an earlier engagement with Christianity. The Authority noted a Facebook photo had 28 comments and 48 likes. However there is no text about the photograph, nor was there any other corroborative information about the applicant being outspoken on religion and Islam.
At paragraph 21 the Authority stated that it does not accept that the applicant has genuinely converted to Christianity and there were not exceptional circumstances to justify considering this information relating to the alleged conversion to Christianity.
Paragraph 22 deals with a cumulative consideration of all the elements of this new information. This includes the applicant’s claimed pre-2018 engagement of the Christian faith and his purported conversion in 2018. The Authority noted that there was no explanation as to why the applicant waited four years from his last attendance at a Christian Church to seek out another in 2018. Considering all the material claimed, the Authority was not satisfied of a strong or even convincing interaction of the applicant in Christianity.
At paragraph 23 of its decision, the Authority considered new information that in late 2018 the applicant joined the ex-Muslim Council. No documentation was provided to prove this and the applicant did not claim to have attended any events held by the Council. The Authority found that there were no exceptional circumstances to justify considering this new information.
At paragraph 24 of its decision, the Authority considered new information as to the treatment of Christian converts and some religious minorities in Iran. As the Authority was not satisfied that the applicant was a Christian convert, it was not satisfied that exceptional circumstances to justify considering this new information.
At paragraph 25 of its decision, the Authority noted that the applicant provided new information in the form of a decision by the Administrative Appeals Tribunal for an unrelated applicant. That decision set aside the cancellation of a Protection visa for a Christian convert from Iran. The Authority found that the findings of the Tribunal in an unrelated application were not relevant to the current matter. The Authority was not satisfied that there were exceptional circumstances to justify considering this information.
Paragraphs 26 through to 30 deal with new information contained in a Statutory Declaration that the applicant had been politically active in Australia in protesting against Iranian authorities and therefore had a fear of harm if returned to Iran. The Authority was satisfied that this was credible new personal information and found that there were exceptional circumstances to consider this new information. The Authority also found that a report by the Immigration and Refugee Board of Canada dated 16 January 2017, an article from the Guardian dated 9 January 2018 and a report from Amnesty International also dated 9 January 2018 that related to the treatment of student protesters in Tehran was new information that should be considered by the Authority.
Paragraphs 31 deals with a reference obtained from his employer. The Authority was satisfied it was credible personal information. The Authority was not satisfied it would have affected the consideration of his claims and was not satisfied that exceptional circumstances to consider this information.
Paragraph 32 records that the Authority obtained new information in the form of the most recent Department of Foreign Affairs and Trade country information report on Iran dated 7 June 2018. The Authority was satisfied there are exceptional circumstances to consider this new information, noting the delegate’s decision was made two years ago and the current report supersedes the report referred to by the delegate.
Paragraphs 33 of the Authority’s decision sets out the applicant’s claims for protection. These include:
•The applicant’s father worked for the national petroleum company. In 1985 or 1986, the applicant’s father was arrested and accused of being a member of the Mojahedin-e-Khalq (MeK). In fact his father was not a member of that organisation. His father was detained for six months during which time he appeared before the Revolutionary Courts. He was released after six months and lost his job
•From the time of the father’s detention, the applicant claimed his family suffered discrimination and felt they were under surveillance. They were boycotted from government services and even schools would not enrol him.
•In 2003, the applicant commenced a course in mechanical engineering. As he was achieving high marks, a Basij officer asked the applicant to tutor Basij students. The applicant refused, and a week later he was beaten by five of six men from the Basij. His injuries included a broken nose, forehead and teeth. He was told to report the assault to police, but did not do so because the police were controlled by the Basij and Ettela’at (security service).
•A week later, the applicant was abducted on his way home from university. He was detained for two weeks during which time he was interrogated and assaulted. He was asked what political group he was a member of and told “you’re probably learned all this from your father”. He believed his abductors were from the Ettela’at.
•As a result, the applicant decided to protest against the regime. During the anniversary of the Iranian revolution, he distributed pamphlets he had written about the people suffering and how the anniversary was a lie.
•In February 2012, the applicant was arrested for distributing pamphlets. He was detained for a week, tortured and question about the pamphlets. He was released on bail and his parents paid a bond of 100 million Tomans.
•The applicant did not attend his court hearing and was sentenced in absentia to 6 months jail and fined. He found out about the sentence through a family friend who worked in the courts. He hid with relatives for two months while organising to leave Iran. He travelled to Australia with his brother.
•Since leaving Iran, the applicant claims his family have been attacked. While he was in Indonesia, a bottle of acid was thrown into the garden. His father was attacked in 2014 by a group of men with daggers, suffering serious injuries to his chest. During the attack, they threatened the applicant’s sister would be next. In 2017, the sister was beaten on her way home from school.
•Since being in Australia, the applicant has protested against the Iranian regime both on Facebook and in person at rallies, and will continue to do so in Iran.
•The applicant fears serious and significant harm if returned to Iran for reason of his family’s history, is outstanding court sentence and his political activity in Iran and Australia.
At paragraph 36 of its decision, the Authority accepted that the applicant was a citizen of Iran and that Ahwaz was his home area.
Paragraph 37 onwards deals with the claims that the applicant’s father was accused of being involved with MeK. By reference to country information the Authority accepted as plausible that the applicant’s father may have been detained as a result of a crackdown on MeK in the 1980’s. The father’s release from detention indicated the Iranian authorities did not view the father as an actual supporter of MeK.
At paragraph 40, the Authority rejects that the applicant suffered ongoing discrimination, including being denied enrolment or a scholarship as a result of the accusations against his father. The Authority noted the applicant’s stable schooling, his good academic achievements and ability to access tertiary level education.
At paragraph 41, the Authority considers it plausible the applicant was assaulted as a result of refusing to tutor members of the Basij. The Authority did not consider it credible that the applicant was detained and interrogated for 2 weeks but told no-one about this event. Even if it occurred, the applicant was able to complete his studies and then 2 years of military service. The Authority noted the applicant was not prevented for applying for a passport. The refusal to tutor Basij students occurred more than 15 years ago. The Authority was not satisfied there was a real chance of harm as a result of this incident.
At paragraph 42, the Authority noted that the applicant claims to have been arrested and sentenced to 6 months imprisonment and fined for distributing anti-regime pamphlets. The Authority found the description of the applicant’s arrest by members of the Basij implausible. The applicant claimed that while trying to flee the Authorities, he drove into a street where people were protesting. With the street blocked, he chose to stay and fight 4 members of the Basij or Ettela’at rather than trying to flee.
Following his arrest, the applicant claimed that in February 2012 his parents paid a bond of 100m Tomans or US$50,000.00 for his release. Given the claim that his parents suffered financially, the Authority questioned how his parents could have paid a bond in that amount. The Authority considered the claim fabricated. This affected his credibility of his claim to have been arrested in 2012.
At paragraph 42, the Authority considered the claim the applicant was sentenced in absentia to 6 months imprisonment. The Authority noted a purported judgement from the Public (Penal) Court of Alwhaz produced by the applicant to support this claim. The Authority was concerned that while the document referred to generating sound pollution and assaulting law enforcement officers, no mention is made of anti-regime pamphlets or other written material that was in the car of the applicant.
The Authority noted that the applicant has never provided any copies of the pamphlets he claimed were produced over a number of years and he had been caught within 2012. The applicant claimed that he was able to receive a copy of his Court decision when his brother emailed this to him. The Authority considered some of the material the applicant purportedly put in pamphlets could have been similarly emailed to him.
At paragraph 46, the Authority noted that the applicant has been in Australia for more than six years. The applicant has not provided any evidence of any writing he has done in Australia. The applicant has provided Facebook posts but these are predominantly from other people that he has shared and there was limited writing on them and certainly nothing has been translated for the Authority to consider.
The Authority was not satisfied that the applicant’s low-level political activity in Australia was consistent with a person who would risk their life or liberty to distribute anti-regime material in Iran. The Authority concluded the applicant did not write and distribute anti-regime pamphlets in Iran. In coming to this conclusion, the Authority felt it was implausible that he would have been able to depart Iran if he was under a sentence of imprisonment. The Authority noted country information which indicated Iranians authorities impose travel bans on citizens for, amongst other things, outstanding sentences waiting enforcement. Iranian citizens may be unaware they have a travel ban until they reach passport control and are prohibited from leaving.
At paragraph 48, the Authority noted that the applicant claimed he left on his own passport, not a fraudulent one, and claimed he was able to depart even with the outstanding sentence, because a smuggler paid bribes to airport officials. During his TPV interview, it was put to the applicant that the amount he claimed he paid did not appear to be enough to cover bribes at the airport, after taking into account the smugglers costs and profit. The applicant said he had paid a total of US$6,500.00. Country information indicated where bribes were paid to pass through the airport, these were more likely to be in the range of €8,000.00 - €10,000.00. The Authority found the claim that the applicant had paid a bribe in order to leave Iran implausible.
At paragraph 49, the Authority found the applicant’s claim that he was arrested and sentenced in 2012 implausible. The Authority considered the Court document that he provided but did not accept it was a copy of a genuine Court document.
Paragraph 50, the Authority noted the applicant claims since he had left Iran, that his family had suffered threats and assaults. This included a bottle of acid been thrown into the garden of his family home and the applicant’s sister being threatened now that he and his brother had left Iran. The Authority gave a photograph, which purportedly showed the applicant’s mother holding a bottle, little weight as there was no evidence of the date of the photograph, what the contents of the bottle were, nor was there any official report such as a police report to verify the claim. The Authority also noted that in the six years since this purported attack, there had been no further incidents. The Authority was not satisfied that the applicant’s remaining family had ever been threatened because he and his brother had left Iran and that they had been attacked with acid.
At paragraph 51, the Authority noted that the applicant claimed that his father was assaulted in 2014 by a group of men with daggers and suffered serious chest injuries. The applicant claimed the attackers threatened that next time they would attack his sister. The Authority then stated as follows: “Little more detail than that has been provided of this alleged assault. No medical or other evidence was provided”. The Authority concluded there was insufficient detail or evidence in relation to the alleged assault for the Authority to be satisfied ‘it had any connection to the applicant or that it even occurred’.
At paragraph 52, the Authority dealt with claims that the applicant sister had been assaulted in 2017. The applicant provided copies of X-Rays and a letter from a doctor to support this claim. Whilst the Authority was satisfied that the incident occurred, it was not satisfied, as it occurred five years after the applicant left Iran, that it had any connection to the applicant.
At paragraph 53, the Authority noted what it considered to be a lack of detail in relation to claimed attacks on his father and sister. The Authority concluded that was not satisfied the applicant faced a real chance of harm because his family had been targeted since 2012, because the Authority did not accept they had been targeted.
Paragraphs 54 onwards deal with the claim that the applicant fears harm because of his political opinions if returned to Iran. The Authority found it would not be unusual for a young Iranian, who was chosen to leave Iran and live in Australia, to hold some anti-regime sentiment and share material on this topic. The applicants posts went as far back as 2012 and the Authority took into account that material. However, the limited material available, did not indicate that the applicant was an activist.
At paragraph 57, the Authority accepted that the applicant had attended protests and Iranian cultural events in Australia in 2018, but there was no material to support the claim the applicant attended any protest prior to April 2017. The Authority took this material into account.
At paragraph 59, the Authority considered a submission that the applicant will continue to be politically active in Iran if he was returned. Given his past history of not protesting in Iran, his limited history of doing so in Australia where he was free to do so, the Authority found the applicant would be unlikely to participate in protests in Iran in the future. Even if he did so, he would not do so in the capacity as an organiser. As the Authority had rejected the claim that he produced anti-regime pamphlets in Iran, and given his lack of doing such activity in Australia, the Authority found it was not something the applicant would do upon return.
At paragraph 61, the Authority considered whether the applicant’s political activity in Australia would put him at risk on return. The Authority noted Iranian authorities reportedly have little interest in failed asylum seekers who post comments critical of the government on social media. While some Facebook posts appear to be anti-regime, the account is not in the applicant’s full name and the Authority did not accept the level of activity would be of interest to Iranian authorities, even if they were aware of it. The Authority also noted country information indicated the Iranian authorities have little interest in prosecuting failed asylum seekers for activities conducted outside Iran.
The Authority found the applicant did not face a real chance of harm Iran for reason of his political activities or political opinions and he did not meet the requirements of the definition of a refugee in s 5H(1) of the Act. The Authority also considered whether the applicant met the complimentary protection requirements, however for the same reasons concluded that he did not.
Accordingly the Authority affirmed the delegate’s decision not to grant the applicant a protection visa.
Grounds of Judicial Review
The applicant now relies upon the following four grounds of judicial review contained in a third amended application filed with the Court on 8 September 2022. The grounds are long and contain detailed particulars.
They are as follows:
Ground One
The Authority erred by:
A. considering new information that was adverse to the applicant
without first applying the test in s 473DD; or
B. alternatively, failing to comply with s 473DE(1) of the Act; or
C. alternatively, acting in an irrational or unreasonable manner in
failing to consider exercising its discretion under s 473DC of the Act.
Particulars
a. First:
i. The applicant was in Indonesia en route to Australia in the period from 9 June to 13 October 2012.
ii. The applicant claimed that, when he was in Indonesia, his family told him that a bottle of acid was thrown into their garden with a threat against the applicant’s sister: at [50]. The Delegate accepted that this threat was made: CB 129.
iii. The Authority reasoned “that 6 years after this incident there has been no acid attack against any member of his family. Were this an actual threat it would be expected that some consequence would have followed in that time”: at [50].
iv. The Delegate’s decision was made on 26 June 2017. The six year period referred to by the Authority thus included a substantial period of time that post-dated the Delegate’s Decision.
v. Whether or not an acid attack had occurred after the Delegate’s Decision was new information within the meaning of s 473DC(1). The Authority erred by:
I.having regard to that new information without first determining if s 473DD was satisfied; or
II.alternatively, failing to comply with s 473DE in respect of that new information
vi.In the alternative to the preceding particular, the Authority erred by acting in an irrational or unreasonable manner in failing to consider exercising its discretion under s 473DC of the Act to seek new information from the applicant in relation to whether there had been an acid attack on the applicant’s family after the date of the Delegate’s Decision, or whether the applicant otherwise had an explanation for the lack of acid attack on his family in the 6 years after the initial alleged threat.
b. Second:
i. The applicant claimed that his father and sister had been attacked in Iran: at [51]-[53].
ii. The Delegate had accepted that the attacks against the applicant’s family had occurred.
iii. Contrary to the applicant’s claim, the Authority found that the applicant’s family had not been targeted since 2012: at [53].
iv. In reaching this conclusion, the Authority relied on the fact that “no further detail has been given by either of the two migration agents representing [the applicant] before the Authority”: at [53].
v. Whether or not the applicant’s representatives before the Authority had provided further information on these points was new information within the meaning of s 473DC(1). The Authority erred by:
I.having regard to that new information without first determining if s 473DD was satisfied; or
II.alternatively, failing to comply with s 473DE in respect of that new information
vi.In the alternative to the preceding particular, the Authority erred by acting in an irrational or unreasonable manner in failing to consider exercising its discretion under s 473DC of the Act to seek new information from the applicant in relation to the alleged attacks, especially in light of the regime under Pt 7AA of the Act and the fact that the Authority intended to use the absence of further information regarding the attacks adversely to the applicant.
Ground Two
Additionally, or in the alternative to the preceding ground, the Authority erred by misunderstanding or misapplying the Act insofar as the Act specifies the nature of the review required of the Authority under Pt 7AA.
Particulars
a.The applicant repeats particulars (a)(i)-(iv) and (b)(i)-(iv) to ground 1 above.
i.The review as provided for by the Authority under Pt 7AA of the Act “is generally conducted on the papers and focuses on the review material provided by the Secretary to the IAA”: Minister for Immigration and Border Protection v AMA16 (2017) 254 FCR 53 at [19].
b.In the context of claims that were accepted by the Delegate, for the Authority to use
i.against the applicant the absence of evidence of the acid threat being made good, or
ii.the absence of “further detail” ([53]) being provided regarding the attacks on the
iii.applicant’s father and sister, where such absence related (wholly or in significant
iv.part) to the period of time after the Delegate’s decision was made, reflects an
v.erroneous approach to the review required by the Authority.
Ground Three
The Authority erred when reasoning or concluding that it was unable to consider any of the new information provided by the applicant regarding his activities in relation to Christianity.
Particulars
a. The applicant provided new information that related to his activities atesin relation to Christianity (the Christianity Information), including:
i. a letter from a Pastor at the applicant’s church (Pastor’s Letter);
ii. paragraphs 31-44 of a statutory declaration from the applicant dated 29
iii. January 2019 (the Declaration Paragraphs);
iv. a photograph that the applicant had posted online of the applicant with a
v. salvation army officer (the Salvation Army Photo);
vi. a photograph that the applicant had posted online of the applicant being
vii. baptised (the Baptism Photo).
b. The Authority found that there were not exceptional circumstances for considering the Salvation Army Photo and other parts of the Christianity Information that predated 2018: at [17].
c. The Authority found that there were not exceptional circumstances for considering the Pastor’s Letter, the Declaration Paragraphs or the Baptism Photo and other parts of the Christianity Information that dated from 2018 onwards: at [19]-[21].
d. The Authority’s reasoning in these paragraphs discloses the errors set out below.
e. First, the Authority’s assessment of the potential relevance of the Christianity Information generally, and especially in relation to the four items identified at particular (a) above, was limited to considering whether the information was probative regarding whether the applicant had genuinely converted to Islam, or whether he was at risk of harm in Iran as a convert. The Authority thus erred by one or more of:
i. failing to consider whether the Christianity Information was relevant because it was probative regarding whether the applicant might face harm on the basis that he was perceived to be a Christian;
ii. misconstruing or misapplying the meaning of “exceptional circumstances” in s 473DD(a) in an incorrectly narrow manner.
f.Second, failing to consider whether the Pastor’s Letter, Declaration Paragraphs and/or Baptism Photo satisfied s 473DD(b)(ii), and if so whether this bore upon the s 473DD(a) question.
g.Third, alternatively to (f) above, misconstruing or misapplying s 473DD(b)(ii) by:
i.limiting the consideration of whether the Pastor’s Letter, Declaration
ii.Paragraphs and/or Baptism Photo satisfied s 473DD(b)(ii) to whether this material was credible in relation to the applicant’s actual conversion to Christianity, rather than his putative conversion; and/or
I.imposing a credibility requirement under s 473DD(b)(ii) that required the
iii.information to be more than just open to, or capable of, being accepted by the Authority as truthful, accurate, or genuine: cf CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 at [41];
h.Fourth, erring in law by making a “no evidence” finding, or otherwise overlooking significant evidence as:
i.the Authority held that there was “no corroborative evidence” to show that
I.the applicant had told his parents of his conversion to Islam: at [20]. However, the Pastor’s Letter corroborated the Declaration Paragraphs on this point;
A.the Authority held that “[a]part from one photograph on Facebook, there is no other corroborative evidence of the applicant’s claim to be outspoken on religion”: at [20]. However, the Pastor’s Letter was corroborative of the
B.Declaration Paragraphs on this point.
Ground Four
The Authority erred by having its review stultified by error made by the Secretary or the Secretary’s delegate under s 473CB(1)(c).
Particulars
a.The applicant claimed, and the Delegate accepted that:
i.the applicant’s father was detained for six months and subsequently dismissed from his government job on account of being suspected of being a member of the Mujahidin;
ii.the applicant’s family was subjected to discriminatory treatment in respect of social and other benefits on account of being family members of a suspected Mujahidin;
iii.the applicant’s family was subjected to harassment such as a threat of an acid attack, the applicant’s father being stabbed and the applicant’s sister being beaten.
b.The Authority found that none of the events referred to in particulars (a)(ii)-(iii) had
c.occurred.
d.The applicant’s brother had made a protection visa application at about the same
e.time as the applicant made his protection visa application.
f.The Delegate that interviewed the applicant also interviewed the applicant’s
g.brother, in respect of the applicant’s brother’s visa application, on the same day that
h.the Delegate interviewed the applicant.
i.The Delegate that determined the applicant’s visa application also determined the
j.applicant’s brother’s visa application, and both decisions were made on 26 June
k.2017.
l.In his visa application and before the Delegate, the applicant’s brother made claims
m.that were the same, or effectively the same, as the claims referred to in particular (a)
n.above.
o.After the applicant’s brother’s interview with the Delegate, the applicant’s brother’s
p.representative, who was also the applicant’s representative, provided the Delegate
q.with documents that included evidence of the applicant’s and applicant’s brother’s
r.father being stabbed.
s.In determining the applicant’s brother’s visa application, the Delegate accepted that
t.the applicant’s and applicant’s brother’s father and sister had been assaulted as the
u.applicant’s brother claimed.
i.At the time the Secretary (or alternatively the Secretary’s delegate) gave the
ii.Authority material under s 473CB in respect of the applicant, the Secretary (or, if
iii.applicable, the Secretary’s delegate) had in his or her possession or control, but did
iv.not provide to the Authority, the following material (the Extra Information):
I.the applicant’s brother’s entry interview recording and written record;
II.the applicant’s brother’s Protection visa application;
III.the recording of the applicant’s brother’s Protection visa interview;
IV.the decision of the Delegate made in respect of the applicant’s brother;
V.the material emailed to the Delegate after the applicant’s and applicant’s
VI.brother’s Protection visa interview, in particular, the evidence of the
VII.applicant’s and applicant’s brother’s father being stabbed.
j. In the premises, the Secretary (or alternatively the Secretary’s delegate) erred by:
i.failing to consider whether the Extra Information (or part of it) was relevant
ii.to the review to be conducted by the Authority in respect of the applicant;
iii.misconstruing the phrase “relevant to the review” in s 473CB(c) to give it an unduly narrow meaning; or
iv.acting unreasonably, irrationally or illogically in determining that the Extra Information (or any part thereof) was not relevant to the review to be conducted by the Authority in respect of the applicant.
k. Additionally, or in the alternative to the preceding particular, the Secretary (or the Secretary’s delegate) erred by:
i.failing to conduct reasonable searches for material to give to the Authority under s 473CB(1)(c); and/or
ii.permitting the Delegate to determine the material to be given to the
iii.Authority under s 473CB(1)(c) (see, eg, the material at CB 165-6, 205-211, and the material at p 39-42 and 167-172 of the Court Book filed in the applicant’s previous proceedings in this Court (CUK18 v Minister for Home Affairs & Anor SYG1493/2018).
l. Additionally or in the alternative:
i.the Secretary (or the Secretary’s delegate) erred by:
I.failing to re-perform the duty under s 473CB, or s 473CB(1)(c); or
II.failing to conduct reasonable searches for material under s 473CB(1)(c);
following the remittal of the applicant’s matter back to the Authority by the Federal Circuit Court on 31 October 2018;
ii.at that time, the Extra Information was in the possession or control of the
iii.Secretary;
iv.the Secretary’s error deprived the applicant of a real chance of a different
v.outcome that might have been obtained had the Secretary not erred, as
vi.absent that error there is a real chance that some or all of the Extra
vii.Material would have been placed before the Authority.
Ground 5
The Authority erred by one or more of (pleaded additionally or in the alternative):
A.acting in an irrational or unreasonable manner in failing to exercise, or consider exercising its discretion under s 473DC of the Act;
B.failing to consider additional information in the possession of the Authority that was not in the review material provided to the Authority under s 473CB but which was not “new information” within the meaning of s 473DC;
C.acting in an irrational or unreasonable manner in failing to consider obtaining additional information that was not in the review material provided to the Authority under s 473CB;
D.misconstruing or misapplying s 473DC(1)(b), or leaving its jurisdiction constructively unexercised.
Particulars
a.The applicant repeats particulars (a)-(h) to ground 4 above.
b.The Authority took the approach referred to in particular (b) to ground 4 above in circumstances where:
i.the Delegate had, in assessing the applicant’s credibility, the benefit of seeing the applicant give evidence in person, whereas the Authority had not;
ii.the Authority had not put the applicant on notice that the Authority might disbelieve the applicant’s evidence on these points.
c. The Authority was in possession of information relevant to the applicant’s case, but which was not in the material given to the Authority under s 473CB in respect of the applicant, specifically the (Extra Information) (CB 170-171) referred to at particular (i) to ground 4 above.
d. The Extra Information was before the Delegate when the Delegate made the decision under s 65 of the Act on the applicant’s visa application.
e. The Authority erred as:
i.it failed to consider the Extra Material when conducting its review; or
ii.if the Authority was not relevantly in possession of the Extra Material insofar as the applicant’s case was concerned, the Authority erred by failing to exercise its power under s 473DC to get, or to consider getting, that material from the Minister, the Delegate or the Secretary applicant.
f. Additionally, or in the alternative, in determining whether the Extra Information was “new information” within the meaning of s 473DC of the Act, the Authority misconstrued or misapplied s 473DC(1)(b), or left its jurisdiction constructively unexercised, in that the Authority permitted the Delegate to determine the relevance of the information.
g. Additionally or in the alternative, as the Delegate’s assessment of the applicant’s credibility in relation to the matters described at particular 4(a)(ii)-(iii) above was wholly or substantially based on the Delegate’s assessment of the manner in which the applicant’s account was given, the Authority erred in failing to invite the applicant to give new information, at an interview in person, prior to disbelieving the applicant in relation to those matters.
Ground 5 is was not pressed.
Statement of Agreed Facts
There were a number of interlocutory proceedings in relation to a Notice to Produce served on the Second Respondent. Those proceedings were settled between the parties without the need for the Court to determine the issues.
However, the Court has been provided with a Statement of Agreed Facts that relates to issues raised in Ground four. The position of the parties as set out in the Statement of Agreed Facts will be considered later in this judgement.
Consideration
The applicant’s written submissions dealt with ground four first and it is convenient to consider the submissions in the order in which they appear within the submissions.
Ground four asserts that the Authority’s review was stultified by an error made by the Secretary or the Secretary’s delegate under s 473CB(1)(c) of the Act.
The section reads as follows:
(1)The Secretary must give to the Immigration Assessment Authority the following material (review material) in respect of each fast trach reviewable decision referred to the Authority under section 473CA:
….
(c) any other material that is in the Secretary’s possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review.
The applicant and his brother arrived in Australia together by boat. Each made a Protection visa application. Each was interviewed by a delegate on the same day. The same delegate made a decision to refuse each of the applicant’s and his brother’s Protection visa applications.
Each was referred to the Authority for merits review. It was submitted that in doing so, the Secretary treated each brother’s case as ‘siloed off’ and did not treat material relating to the applicant’s brother as relevant to the applicant. It was submitted that the commonality of claims between the applicant and his brother were corroborative of each other. The Authority did not consider the brother’s material when considering the applicant’s claims.
It was submitted that following the applicant's TPV interview, the migration agent acting for the applicant’s brother sent to the delegate an email that attached material including photos of the applicant’s father’s injuries following a claimed assault, a photo apparently showing a bottle of acid used to threaten the applicant’s sister and documents said to evidence a claimed assault on the applicant’s sister.
It was submitted that the delegate did not deal with the claim that the applicant’s father had been stabbed in considering the applicant’s claim. However, in considering the brothers claim, the delegate found that the brother had been arrested, detained and possibly tortured following protests after the 2009 election. The delegate accepted that assaults had occurred on the applicant’s father and sister but these were not related to whatever the brother had done.
In referring the matter to the Authority, it was agreed between the parties that that the Secretary, pursuant to s 473CB of the Act, was required to conduct reasonable searches for material that was relevant to the applicant’s review by the Authority.
In so doing, the delegate did not provide some relevant material identified by the Authority as relevant. This was requested by the Authority on 18 April 2018 in the following terms:
A number of documents regarding his (the applicant’s) family in Iran were included in his brother’s file (details set out) but were also handed to the delegate in this case. However they do not appear to be included in the file for this applicant.
The delegate answered the request via email on 20 April 2018 in the following terms:
The documents referred to, are not relevant for review. They did not play a crucial role in the decision made. Anyway, some of those documents are in the clients file (reference to a Trim file provided) and I believe they have been included in the PDF portfolio.
In relation to some documents, the delegate noted that they could not find a copy of them. The delegate suggested that these could be obtained from the applicant. Ultimately the first Authority rejected the applicant’s claims. That decision was quashed by this Court on 31 October 2018 and remitted for further consideration.
It was agreed between the parties that following the remittal of the matter by the Court to the Authority for reconsideration, the Secretary was obliged to re-perform the s 473CB(1)(c) of the Act duty. It is agreed between the parties that no searches were undertaken by the Secretary for material relating to the brother or the brother’s protection visa application.
On 12 November 2018, the Authority requested from the Secretary certain documents, including records relating to the acid threat and the applicant’s sister being ‘hit’ and ‘beaten’. Ultimately, some material was provided that included some, but not all the material attached to the email sent by the bother’s representative. It was submitted that the following documents, which should have been, were not provided:
•the written record of the brother’s entry interview;
•the audio recording of the brother’s entry interview;
•the brother’s protection visa application, including a statutory declaration made by the brother in support of that application
•the audio recording of the brother’s interview with the delegate, and a transcription of that interview;
•the body of the brother’s email and attachments Including photographs showing a person claimed to be the applicant’s father with a large wound to his chest;
•the delegate’s decision in relation to the applicant’s brother.
It was submitted that the above material was relevant because it supported the claims of the applicant and, in particular, was directly relevant to the conclusion made by the Authority at paragraph 51 of the decision record, that no medical or other evidence was provided in relation to the claim that the applicant’s father was assaulted in 2014 by a group of men with daggers noting, that the Authority concluded there was “insufficient detail or evidence… That it (the attack) even occurred”.
Further, the Authority found at paragraph 53 of its decision, that it was not satisfied that the applicant’s family had been targeted for harm since he left Iran because the applicant fled Iran or because of his father’s history or for any other reason related to the applicant.
Section 473CB(1)(c) of the Act requires the Secretary to provide any material that is in the Secretary’s possession or control and is considered by the Secretary to be relevant to the review. Subject to a materiality being established, an error by the Secretary under s 473CB(1) of the Act will result in jurisdictional error: (see; EVS17 v Minister for Immigration and Border Protection [2019] FCAFC 20 at [42]).
Material that is “relevant to the review” is material “capable directly or direct indirectly of rationally affecting the assessment of the probability of the existence of some fact about which the Authority might be required to make a finding”: (see; ABT17 v Minister for Immigration and Border Protection [2020] HCA34 at [16]).
It was submitted that the threshold test for what might constitute evidence that is relevant, has been variously described as “undemanding”, “quite low”, a “low one” and “relatively low”: (see; Daya v Cx Reinsure Co Ltd [2012] NSWSC 1616 at [16]; Shanker v R [2018] VSCA 94 at [95]). What is relevant is a broad concept. In CQR17 v Minister for Immigration and Border Protection [2019] FCAFC 61 at [105] the following was said per Derrington J:
[105] As the obligation of Immigration Assessment Authority is to conduct a de novo hearing to consider the application for a protection visa afresh, all material which relates to every aspect of the visa application is necessarily relevant. Even where a delegate has decided a point in favour of the visa applicant, the material in the possession of the Secretary which tends to prove or disprove that issue can be said to be relevant to the review as the Immigration Assessment Authority is obliged to reach its own conclusions on each matter. Indeed, the relevant material before the Immigration Assessment Authority may include information which was not considered by the delegate but which is in the possession of the Secretary at the time of the referral.
It was submitted that where the Secretary does not carry out lawfully the duty under
s 473CB(1)(c) of the Act, this establishes a breach of the Act. However, the next question is whether or not such a breach is material. Materiality requires the applicant to establish “that there is a realistic possibility that the decision in fact made could have been different had the error not occurred”: (see; ANJ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1277 at [36]).
The Authority found at paragraph 51 of its decision, that the applicant’s father had not been stabbed, stating that “no medical or other evidence was provided”. It was submitted the photographs contained in the brother’s Court Book (at pages 113 – 115) which was before the Court, would provide compelling evidence that the applicant’s father had in fact been stabbed. These photographs were provided to the delegate by the applicant’s brother.
The applicant claimed in his 2016 Statutory Declaration that when his father was assaulted, those responsible threatened his sister was next. The Authority accepted a Doctor’s letter evidencing the beating of the applicant’s sister at paragraph 52 of its decision. If the Authority had accepted that the applicant’s father had been stabbed as claimed, it was submitted that these would point away from the events being random and towards a conclusion that the family did in fact face continuing problems in Iran. This was in circumstances where the applicant claimed his issues were linked to his father’s issues with Iranian authorities.
It was submitted that there were other basis upon which the other evidence could have assisted the applicant. This included evidence of the brother, in his entry interview, claimed to have been involved in protests activities against the government. The brother also indicated the family was discriminated against due to the father’s political opinions. The brother linked, in his Statutory Declaration and TPV interview, the problems he had with authorities in Iran back to his father being perceived to be against the regime. In his Statutory Declaration, the brother claimed that the acid threat occurred and the father had been assaulted, both claims the applicant maintained in his interview but were rejected by the Authority in relation to the applicant.
It was further submitted that there was a realistic chance the Secretary could have decided to include the additional information had the Secretary discharged their obligation to conduct a reasonable search for relevant material.
It is agreed between the parties that had a search been undertaken the additional material would have been located. While the Minister submits that this material may not be relevant to the review, the applicant suggests that a reasonable person would have considered it relevant.
It is well accepted that the role of the Authority is to respond to the case advanced by the applicant: (see; Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [405]). The onus of proof lies on the applicant to show that they meet the criteria for a Protection visa. It is for the applicant to advance whatever evidence or argument they wish to support the contention they have a well-founded fear of persecution for a convention reason: (see; Abebe v Commonwealth of Australia (199) 197 CLR 510 at [187]).
There is no general obligation on the Authority to investigate an applicant’s claims. Part 7AA of the Act provides for limitations on the manner in which a review is to take place (s 473DB of the Act). Further, there are strict limitations on the Authority considering new information (s 473DD of the Act) when provided by an applicant subsequent to the delegates decision.
In GJM18 v Minister for Immigration and Anor [2020] FCCA 632 (“GJM18”) at [110] –[116], the Court dealt with a similar claim that information that should have been provided to the Authority was not. The material in that case was a video, which it was said was shown to the delegate by the applicant’s father in his protection visa interview. It was said that the applicant indicated he wanted the video taken into account in his own case.
At [111] the Court found that while the video was shown to the delegate, it did not come into the possession of the delegate. The Court further found that pursuant to s 5AAA(2) of the Act, it was the responsibility of the non-citizen to “provide sufficient evidence to establish the claim”. That is, it is the responsibility of the person seeking protection to provide all the evidence they seek to rely upon. At [113] The Court found that it was the responsibility of the applicant, if he wished to rely upon the video, to have provided it first to the Department and second to the Authority. As the applicant did not do so, s 473CB of the Act was not enlivened.
In DIN18 v Minister for Immigration and Anor (DIN18) [2021] FCCA 1, Driver J considered a claim that the applicant had a brother, K, who had claimed and been granted protection. At [103] – [104] Driver J found that the reasons why K had been granted protection were relevant to the Authority’s review, even if the reasons were not before the delegate. The failure of the Authority to obtain the missing information was unreasonable. It appears however, that the Courts decision in GJM18 was not drawn to Judge Driver’s attention.
In the Courts view, the decision in GJM18 can be distinguished from the circumstances in the current matter and the view arrived at by Driver J in DIN18 at [104] followed. In this case the Authority expressly requested documents from the applicant’s brother’s file. The response was that the documents could not be located or that they “were not relevant to the review. They did not play a crucial role in the decision made” with respect to the applicant. This was the wrong test. All that was required was that the documents were relevant, not that they played a crucial part in the decision made.
In these circumstances the Court is satisfied that s 473CB of the Act was not complied with. The decision not to supply the documents requested by the Authority was not reasonable and these errors go to jurisdiction. The Court is satisfied that the error was material in that the findings made by the Authority may have been different had the material been provided. In particular, the Authority may have arrived at a different decision to that made had the Authority been able to view the photographs of the wounds to the applicant’s father.
Ground four has merit and the orders sought by the applicant should be granted.
Given this finding, it is not strictly necessary to deal with grounds 1-3. Ground 1(c) alleges that the Authority acted unreasonably in exercising its discretion under s 473DC of the Act. This ground is made out for the same reasons as set out above.
Ground two alleges that the Authority misunderstood or misapplied the Act in terms of the nature of the review it carried out. The Court is not persuaded that the ground is made out
Ground three alleges that the Authority erred when it concluded it was unable to consider new information provided by the applicant relating to his activities in relation to Christianity. The Court is not satisfied that this ground is made out.
Disposition
The applicant has succeeded in establishing that the decision of the Authority is affected by jurisdictional error. The applicant should receive the relief that he seeks.
I certify that the preceding ninety (90) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 30 January 2023
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