BAB19 v Minister for Immigration
[2020] FCCA 1710
•26 June 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BAB19 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1710 |
| Catchwords: MIGRATION – Immigration Assessment Authority – Safe Haven Enterprise (Subclass 790) visa – application for an extension of time in which to seek judicial review of decision – extension of time granted – whether the Authority failed to engage with the Applicant’s claim – where the Authority considered old country information – whether the Authority failed to consider the Applicant’s claim regarding his tattoo of a Christian cross and imputation of apostasy – grounds of review not made out – application dismissed. |
| Legislation: Migration Act 1958, ss.5J, 477 |
| Cases cited: AHB16 v Minister for Home Affairs [2018] FCA 2006 |
| Applicant: | BAB19 |
| First Respondent: | MINISTER FOR IMMIGRATION CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File number: | MLG 734 of 2019 |
| Judgment of: | Judge Blake |
| Hearing date: | 11 May 2020 |
| Date of last submission: | 11 May 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 26 June 2020 |
REPRESENTATION
| Counsel for the applicant: | Mr Aleksov |
| Solicitors for the applicant: | Bardo Lawyers |
| Counsel for the respondents: | Mr Hosking |
| Solicitors for the respondents: | Australian Government Solicitor |
ORDERS
Pursuant to s.477(2) of the Migration Act 1958, the time for the Applicant to file an application in respect of the decision of the Immigration Assessment Authority dated 13 November 2018 be extended to 15 March 2019
The Application filed on 15 March 2019 be dismissed.
The Applicant pay the First Respondent’s costs of the proceeding fixed in the sum of $7,467.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 734 of 2019
| BAB19 |
Applicant
And
| MINISTER FOR IMMIGRATION CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision made by the Immigration Assessment Authority (‘Authority’) on 13 November 2018. The application was filed on 15 March 2019 (‘Application’) and therefore falls outside the time limit prescribed by section 477(1) of the Migration Act 1958 (‘Act’). Accordingly, the Applicant seeks an extension of time for the making of the application.
For the reasons that follow, I have decided to extend the time for filing of the Application and otherwise to dismiss the Application.
Background
The Applicant is an Iranian national. He arrived in Australia as an unauthorised maritime arrival on 1 February 2013.
The Applicant applied for a Safe Haven Enterprise (Class XE) visa (‘visa’) on 21 September 2017. His claims for protection were set out in a statutory declaration that accompanied his application.
On 8 June 2018, the Applicant was interviewed by a delegate of the Minister. On 20 July 2018, the Applicant’s representative provided a submission containing, among other documents, written submissions, statements from the Applicant, his sisters and partner, country information and other documents.
On 28 August 2018, a delegate of the Minister (‘delegate’) refused to grant the Applicant the visa.
On 31 August 2018, the decision of the delegate was referred to the Authority for review. On 23 September 2018, the Applicant’s representative provided further written submissions, a further statement from the Applicant and other documents in support of the submission.
On 13 November 2018, the Authority affirmed the delegate’s decision not to grant the Applicant the visa (‘Decision’).
The Applicant applied to this Court for judicial review of the Decision on 15 March 2019 (‘Application’). The Applicant’s legal representative also filed an affidavit in support, which annexed a copy of the Decision. The Application was filed approximately 88 days outside of the 35 day time limit prescribed by section 477(1) of the Act.
The materials before the Court in relation to the present application include the Court Book, a written outline of submissions from each of the Applicant and the Minister, the affidavit of the Applicant’s solicitor, Nazim El-Bardoh affirmed on 15 March 2019 and an affidavit of the Applicant’s solicitor, Olga Nazha, affirmed on 24 April 2020.
Grounds of review and the application to extend time
The Application to extend time was not opposed by the Minister. The circumstances surrounding the reasons as to why the Application was filed out of time are set out in the affidavit of the Applicant’s solicitor affirmed on 24 April 2020. These include that the Applicant was incarcerated at the time the Authority handed down its decision, and that the Applicant was self-medicating and therefore did not understand the advice of his then legal representatives.
Given the relatively short delay in filing the Application, the explanation for the delay, which I accept, and the fact that there is not any prejudice to the Minister, I permit the Applicant to file the Application out of time.
I turn then to deal with the Grounds of Review in the Application. There are six Grounds of Review contained within the Application. At the hearing the Applicant elected to press only grounds 3 and 4 of the Grounds of Review and to abandon the other grounds. I now consider each of the Applicant’s claims.
Ground 3
Ground 3 of the Grounds of Review in the Application is as follows:
‘The decision of the IAA is affected by legal unreasonableness because its analysis at Reasons [38]-[39] altogether fails to deal with the accepted possibility that the applicant may participate in further political protests in Iran and might again be arrested and detained as a result, or alternatively, the IAA failed to consider this claim in the manner in which it was advanced and according to law.’
This ground of review takes issue with paragraphs [38] to [39] of the decision of the Authority. Those paragraphs provide as follows:
‘38. In light of the country information before me, I accept that the applicant participated in the large scale 2009 demonstrations, also known as the Green Movement, that he participated by marching and chanting slogans and was arrested and detained for two days following which he was released and told not to partake in such activities. The information indicates that thousands of Green Movement demonstrators rallied on the streets of the major cities chanting slogans, and that many were detained, beaten and harassed by security forces. However, the information before me indicates that while high profile activists and members of the Green Movement continue to face monitoring and harassment, most lower profile activists who were arrested in the 2009 and 2010 protests were subsequently released and are able to go about their daily lives. The applicant’s evidence does not indicate that the he remained involved in any further demonstrations or political activities or that apart from being detained for two days and given a warning, he faced any further repercussions. I note that the applicant was at the time working at the National Petroleum company, which he continued to do so until 2012.
39. The applicant’s representative in providing two newspaper articles to the delegate submits that there is an increase in anti-regime protests in Iran and that the applicant has every right to participate in future protests, which will place him at risk of arrest and serious harm. While I accept that the applicant was told not to partake in further protests in Iran, he does not claim to have been involved in any political activity prior to 2009 protests, or have partaken in any political activities in Australia. Given the applicant’s very limited participation in protests in 2009 and lack of any further engagement in political activities in Iran and in Australia, I am not satisfied that he has any intention or genuine desire to partake in any political activity in Iran beyond protests akin to the 2009 protests or to express his dissatisfaction with the regime more forcefully than he has in the past. While I acknowledge the applicant’s past arrest, given his lack of political profile, I find the chances of the applicant suffering any harm for reasons of partaking in this kind of mass protest to be no more than remote.’ (citations omitted)
There are two aspects to this ground of review. The Applicant first says that there has been a failure by the Authority to consider section 5J(3) of the Act. Second, and a critical point emphasised by the Applicant during the hearing, is that the Authority resolved the issue of whether the Applicant would partake in further political activities without engaging with important evidence submitted by the Applicant to the delegate.
Turning firstly to the Act. Section 5J provides as follows:
‘(1) For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2) A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3) A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i) alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii) conceal his or her true race, ethnicity, nationality or country of origin;
(iii) alter his or her political beliefs or conceal his or her true political beliefs;
(iv) conceal a physical, psychological or intellectual disability;
(v) enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi) alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
It can be immediately seen from the text of the legislation above that subsection (1) defines when it is that a person has a ‘well-founded fear of persecution’. It is also clear from the text of subsection (3) that a person will be taken not to have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour, other than a modification that would, relevantly, for the purposes of the present matter, alter the person’s ‘political beliefs or conceal his or her true political beliefs’.
The approach to be taken in respect of subsection (3) has been the subject of consideration in a number of superior court cases. In Minister for Immigration and Border Protection v SZSCA (2014) 254 CLR 317, Gaegler J referred at [36] to the decision of the Court in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 as follows:
‘Appellant S395/2002 v Minister for Immigration and Multicultural Affairs was concerned with the third element of the definition. The principle for which that case stands is that a fear of persecution for a Convention reason, if it is otherwise well-founded, remains wellfounded even if the person concerned would or could be expected to hide his or her race, religion, nationality, membership of a particular social group, or political opinion by reason of that fear and thereby to avoid a real chance of persecution. The rationale for the principle was encapsulated by Dyson JSC as a member of the Supreme Court of the United Kingdom which adopted the principle in HJ (Iran) v Secretary of State for the Home Department:
“If the price that a person must pay in order to avoid persecution is that he must conceal his race, religion, nationality, membership of a social group or political opinion, then he is being required to surrender the very protection that the Convention is intended to secure for him. The Convention would be failing in its purpose if it were to mean that a gay man does not have a well-founded fear of persecution because he would conceal the fact that he is a gay man in order to avoid persecution on return to his home country.”
(Emphasis in original.)’ (citations omitted)
Importantly, however, Gaegler J also pointed out the limits of the principle in S395 at [37] as follows:
‘The S395 principle should not be extended beyond its rationale. The principle directs attention to why the person would or could be expected to hide or change behaviour that is the manifestation of a Convention characteristic. The principle has no application to a person who would or could be expected to hide or change such behaviour in any event for some reason other than a fear of persecution.’ (citations omitted)
In SZVZL v Minister for Immigration and Border Protection [2018] FCA 1299, Raniagh J dealt with an application to review a decision of this Court. The applicant claimed, inter alia, he was involved in political activities and feared harm because of this. Ranigah J dismissed the appeal. At paragraph [19] of the decision, Raniagh J stated in respect of the findings of the Tribunal as follows:
‘In the present case, the Tribunal’s finding that it was not satisfied that the appellant faced any real chance of persecution in Iran was not based upon any view that he could avoid persecution by acting discreetly by avoiding engaging with political groups. Instead, the Tribunal was satisfied that the appellant “would not wish to continue to engage in such groups should he return to Iran”. That finding was based upon the Tribunal’s satisfaction that the appellant “lacks any real interest” in Kurdish political organisations and its lack of satisfaction that he had “any political (or other) convictions, that would give rise to a real chance of persecution in Iran”. Those matters, in turn, reflected the Tribunal’s earlier findings that the appellant’s involvement in protests in Australia had been limited and that he had not been truthful in his claims to have been involved with the KDP in Iran.’
Having set out the Tribunal’s findings, Raniagh J concluded that the primary judge had not made an error in considering and applying the reasoning in S395. A similar approach was taken by Steward J in FTQ18 v Minister for Home Affairs [2019] FCA 2025 at [26].
What the authorities above disclose is that in approaching section 5J(3), it is not enough for a decision-maker to conclude that an applicant will not face a real chance of persecution merely because the applicant will refrain from engaging in activities that reveal, into alia, his or her political opinion. Rather, what the authorities require is that a decision-maker direct his or her attention to the question of why an applicant may refrain from engaging in those particular activities.
The Applicant submits that the Authority did not engage with critical evidence in respect of the Applicants claim’s about his partaking in further political protests or demonstrations.
The critical evidence which the Applicant says that the Authority did not deal with is set out in a submission sent to the Department by the Applicant’s representatives on 20 July 2018 at Court Book 245. The relevant part of that submission is as follows:
‘4. Religion and politics are the same in Iran. When was young I was stopped by religious police and harassed for wearing a T shirt with freedom on it. I had to take it off and all of my details were taken down. I ran away from military service several times because I disagreed with how I was treated and what I was being made to do. I was forced to pray and follow Islam which I also hated. I was punished with 86 lashes which made me even more angry. I was detained in 2009 during the election protests. I was beaten, abused and not fed properly. In Iran I would want to join demonstrations and to speak out against the Clerics and about the lack of human rights and freedoms in my country, but it is so dangerous because protestors and people who speak out are sent to jail and are beaten and tortured.’
In assessing this aspect of the Applicant’s claim, is important to bear in mind the relevant principles articulated in Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 (‘MZYTS’) at [53]. In particular, an applicant assumes the burden of persuading a Court to draw the inference of a failure to deal with or consider a claim.
In respect of this paragraph, the Applicant says the following. First, he expressly raised the fact that he would ‘want to join demonstrations and to speak out against the Clerics and about the lack of human rights and freedoms in my country’. Second, that he was fearful about doing so because those who ‘speak out are sent to jail and are beaten and tortured’. Paragraphs [38]-[39] of the Decision of the Authority are said by the Applicant not to properly engage with this claim. Rather, the Applicant submits that what the Authority did was assess the claim by reference to the Applicant’s past conduct, rather than what he indicated he wished to do (as set out at in his submission at Court Book 245).
In assessing this aspect of the claim, it is important to understand how this claim was developed.
First, in support of his application for the Visa, the Applicant completed a statutory declaration dated 21 September 2017. In that statutory declaration, the Applicant at paragraph [35] (Court Book 100) stated that ‘I would protest again about the Iranian government if it was safe for me to do so, and if I did I would be in even more danger’.
Second, in a further statement submitted on 21 September 2018 in support of his application, in relation to his political involvement, the Applicant stated ‘I did attend the 2009 protests and was detained as I have explained. I have strong views against the Iranian Islamic Regime’ (Court Book 381).
I have considered the submissions above in the context of the reasons of the Authority, and the principles to which I have referred earlier. When those matters are considered, I am of the view that this ground of review ought to be dismissed.
First, it can be seen from the text of paragraphs [38] – [39] of the Decision that the Authority considered why the Applicant would not engage in any protest activity in Iran. So much may be gleaned from the finding of the Authority at paragraph [39] of its reasons where it states that it is ‘not satisfied that he [Applicant] has any intention or genuine desire to partake in any political activity in Iran’. Contrary to the assertion in the Ground of Review, the Authority did not fail to deal with the accepted possibility that the Applicant may participate in further political activity. Rather, the Authority made an express finding as to the Applicant’s genuine desire and intention to partake in political activity in Iran.
Second, to the extent that issue is taken as to whether the above finding was one that was open to the Authority, a fair reading of the Decision as set out in paragraphs [38] to [39] discloses the following:
a)that the Applicant had not been involved in any political activity in Iran before 2009;
b)the Applicant had not been involved in any further protests or political activity between 2009 and the time he left Iran;
c)the Applicant had secure employment in Iran until his departure from Iran in 2012; and,
d)the Applicant had not been involved in any political activities during the period he was in Australia.
When the above matters are considered, I am satisfied that the Authority’s finding in relation to the Applicant’s genuine desire or intention to partake in further political activity was open to it.
Third, when one has regard to authorities referred to earlier and what can be gleaned from them, it is clear that the Authority in approaching this matter directed itself to the critical issue: that is, the question of ‘why’ the Applicant may refrain from engaging in particular activities. Here, the answer was the Authority was ‘not satisfied that he [Applicant] has any intention or genuine desire to partake in any political activity in Iran’. The Authority thus addressed the key question.
Fourth, when the development of the Applicant’s claims are reviewed, what they disclose is that the Applicant would protest again in demonstrations similar to that which he had engaged in the past. That is, mass demonstrations or mass protests. There is nothing I can see in the history of the Applicant’s claims, which I have summarised above, that indicates he was going to engage in any other type of protest activity.
Finally, of some note is the manner in which the Authority expressed its findings in paragraphs [38]-[39]. The findings made are nuanced. This is not a case where the Authority has concluded that the Applicant would not engage in any further political protest. Rather, the Authority found that the Applicant would not engage in a kind of political activity beyond those activities of which he had already engaged. That in my view, was a finding that was directed squarely to the way in which the Applicant’s claim was articulated. As I have set out above, the Applicant speaks at Court Book 245 of ‘wanting to join demonstrations’. Further, at Court Book 100, he speaks of wishing to ‘protest again’ if it was safe to do so.
For all of the reasons above, I am not persuaded that the Authority failed to consider or incorrectly applied section 5J(3) of the Act. The Authority properly considered and engaged with the Applicant’s claims. As a result, I dismiss ground three of the Grounds of Review.
Ground 4
Ground 4 of the Grounds of Review in the Application is as follows:
‘The IAA failed to determine a submission of substance, or determine a claim to protection, based on the imputation of an adverse profile by dint of having a tattoo of a cross (as opposed to having a tattoo simpliciter) at Reasons [47]-[49] (see AHB16 v Minister for Immigration [2018] FCA 2006).’
It can be seen that this ground of review directs attention to the reasoning of the Authority set out at paragraphs [47]-[49] of the Decision. Paragraphs [47]-[49] provide as follows:
‘Tattoos
47. The applicant claims, and I accept, that he has a tattoo of a cross on his upper arm. The delegate sighted the tattoo at the interview and was also provided with a photo. The applicant claims that he got the tattoo in Iran because it is symbol of Christianity and he liked it. When he was asked given his interactions with the Harasat and whether he was concerned about the Harasat seeing the tattoo, the applicant stated that the tattoo is sort of hidden and even though he was detained for hours and interrogated, Harasat did not see his tattoo. The applicant’s representative submits that whilst tattoos are not controversial to the regime and one may attract lower level harassment or higher level abuse from some authority figures, the applicant’s tattoo of a cross will impute the applicant with apostasy and conversion to Christianity. It is also submitted that the applicant returning as an involuntary returnee, will be subjected to search and interrogation and his tattoo will be revealed.
48. On account of the applicant’s evidence, I accept that he got the tattoo in Iran, during the period that he was exploring Christianity and that he did not come to the attention of the authorities for this reason. DFAT reports that tattoos are increasingly common in Iran, particularly amongst youth, and that it is unware of any recent reports of people being targeted by security forces solely for having tattoos. However it is possible that people with visible tattoos may experience low-level harassment and it is likely for any penalties imposed to be similar to those imposed for dress or hairstyles that are deemed improper, such as a warning or a fine. Further, DFAT also reports that it is not aware of any reports of harassment or detention specifically for displaying tattoos with Christian symbols or words.
49. While I accept that the applicant may come to the attention of the authorities for reasons of his tattoo, given the country information before me, I find that any repercussions for him would be low level harassment, a warning or possibly a fine. I find that this does not amount to serious harm within the meaning of s.5J of the Act. I do not accept there is a real chance that he will be imputed with apostasy or conversion to Christianity or experience any harm beyond this.’ (citations omitted and errors in original)
In respect of the way in which the Authority dealt with the Applicant’s tattoo, paragraph [32] of its reasons are also relevant. At paragraph [32] of its reasons, the Authority stated as follows:
‘In light of my reasons set out above, I am not satisfied that the applicant came to the attention of the authorities for reasons of his actual or imputed conversion to Christianity or non-practise and rejection of Islam in Iran. While I accept that the applicant has engaged in some Christian activities in Australia, including sharing of Facebook posts which I will deal with below, I find the chances of him facing any harm from the authorities or any other person for reasons of religion in the reasonably foreseeable future to be remote.’
The Applicant’s challenge to the reasoning of the Authority above is advanced on two bases as follows.
First, the Authority fell into error in failing to accept the Applicant would be imputed with Christian beliefs. The error is said to arise in the following way. The Authority dealt with the claim of the Applicant in relation to his apostasy or his conversion to Christianity. The Authority also dealt with a claim in relation to the Applicant’s tattoo and whether he might be persecuted for that. However, the Authority failed to deal with whether the Applicant’s tattoo of a cross will lead the Iranian authorities to be believe he is apostate, or has converted to Christianity.
In support of the proposition advanced, the Applicant relied on the case of AHB16 v Minister for Home Affairs [2018] FCA 2006.
Further in support of his submissions, the Applicant says that the Authority fell into error in the way it dealt with the Department of Foreign Affairs and Trade (‘DFAT’) country information reports in relation to this issue. The Authority relied on a 2016 DFAT Report in relation to the way in which it analysed the Applicant’s claims in respect of his tattoo. The 2016 DFAT Report, relied on by the Authority, noted that ‘DFAT also reports that it is not aware of any reports of harassment or detention specifically for displaying tattoos with Christian symbols or words’. In respect of these matters, the Applicant makes the following submissions. First, the later 2018 DFAT Report replaced the 2016 DFAT Report, prior to the Decision and the 2018 DFAT Report makes no reference to tattoos or the material in the 2016 DFAT Report relied on by the Authority. In effect, outdated and redundant material was relied on by the Authority to support its conclusion. Second, the Authority failed to appreciate that there was a difference between adverse attention on account of a tattoo of a Christian symbol ‘per se or simpliciter and the imputation of apostasy by dint of having such a tattoo’.
A review of the material in the Court Book indicates that the Applicant made a claim that his tattoo of a cross may lead to the Iranian authorities believing he is apostate or a convert to Christianity: see Court Book 203, 246 and 381.
I deal firstly with the claim that the Authority failed to deal with whether the Applicant’s tattoo of a cross may lead the Iranian authorities to be believe he is apostate, or has converted to Christianity.
I have set out earlier, paragraphs [47]-[49] of the Decision of the Authority. A review of those paragraphs discloses the following:
a)at paragraph [47], the Authority expressly records the claim being advanced as follows: ‘the applicant’s representatives submit that whilst tattoos are not controversial to the regime and one may attract low-level harassment or higher level abuse from some authority figures, the applicant’s tattoo of a cross will impute the applicant with apostasy and conversion to Christianity’. As can be seen from this quote, the Authority was aware that the existence of the tattoo was linked to the claim of apostasy or conversion to Christianity.
b)At paragraph [48], the Authority referred to DFAT not being aware of any reports or harassment or detention ‘specifically for displaying tattoos with Christian symbols or words’.
c)At paragraph [49], the Authority recorded the following express finding: ‘I do not accept that there is a real chance that [the applicant] will be imputed with apostasy or conversion to Christianity or experience any harm beyond this’.
In ApplicantWAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [47] the Full Court of the Federal Court of Australia stated as follows:
‘The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point’.
In my view, the passages I have set out from the Decision disclose not only that the Authority accurately recorded the issue, but that it went on to deal with it. To the extent I am wrong about that, I would also add that, in light of the material I have extracted above as well as paragraph [32] of these reasons, I would not draw the inference that the Authority has failed to deal with the matter, having regard to the manner in which the Authority has dealt with the issue of the tattoo of the cross and what it symbolises. The Authority has, in my view, identified the issue and considered the subject matter comprehensively. I do not accept the proposition that the Authority has not dealt with the matter, or that it has dealt with the question of the tattoo ‘per se’ as the Applicant puts it, without considering the imputations that might be drawn from it, for the reasons set out above.
I then turn to deal with the argument in relation to the Authority’s reliance on the 2016 DFAT Report. The 2016 and 2018 DFAT reports are annexed as ON-1 to the affidavit of Olga Nazha affirmed on 24 April 2020. The Applicant’s submission that the 2018 DFAT report replaces the earlier 2016 DFAT Report has some force. For a start, paragraph 1.5 on page 6 of the 2018 DFAT report stipulates that ‘This updated Country Information Report replaces the previous DFAT report on Iran published on 21 April 2016’. Further, the ordinary meaning of the word ‘replace’ according to the Macquarie Dictionary is ‘to fill or take the place of; substitute for (a person or thing)’. When these matters are considered, it is difficult on one view to understand why the Authority should be able to rely on an earlier DFAT report.
I have however, formed the view, on balance, that the reliance by the Authority on the 2016 DFAT Report does not give rise to an error. For a start, it is well accepted that the Authority may consider country information, that the weight to be given to different country information is a matter for the Authority itself, and that the question of the accuracy of country information is one for the Authority. In NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11], the Federal Court, in a context where a challenge had been made to reliance on different sources of country information, said as follows:
‘The appellants’ submissions contained a number of complaints about reliance by the Tribunal on information from sources other than the first appellant, referred to as ‘country information’. The Tribunal summarised in its reasons for decision a significant quantity of material it saw as relevant to the task it had to perform. This included material from the United States of America State Department, DFAT and various international news services and publications. To some extent, this material could have been considered to be helpful to the appellants’ case, but it is certainly true that the Tribunal relied on some of it in making findings adverse to the appellants. By s 420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s 424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that.’
In addition to the above see also the statements in VWFW v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 29 at [63].
Second, the Applicant’s argument would in my view have succeeded if the 2018 DFAT Report contained information that was contrary to, or inconsistent with, the earlier 2016 DFAT Report. That, however, is not the case. The 2018 DFAT Report is silent on the question of tattoos. That left the Authority in the position of not having any information before it that was specific to the claim it was required to deal with. In that situation, it was, in my view, open to the Authority to go back to the most recent information that it had in dealing with the particular issue.
In MZYTS the Full Court was dealing with a situation involving country information from Zimbabwe. Updated country information had been released before the Tribunal made its decision, but there was no reference to that in the decision record – only a reference to the earlier country information. The Full Court held that the Tribunal had fallen into error by failing to consider the updated country information. The Full Court reached that conclusion having noted that there was no reference at all to the later country information that had been submitted (at [42]). Further, the Full Court was of the view that the error itself, in the circumstances of that case, led to a failure by the Tribunal to perform the statutory task imposed on the Tribunal by the relevant provisions of the Act: see paragraph [31]. The Full Court also pointed out however, that no error could be attributed to what might be described as a ‘failure to consider [the] most recent country information’ (at [46]).
In the present matter, the Authority did consider the later country information i.e. the 2018 DFAT Report. So much can be seen from the footnotes that attach to paragraph [48] of the Decision. Having done so, it was open to the Authority to assess the competing pieces of country information to assess the accuracy of the information, and decide what weight to place on it.
Finally, on one view, what the Applicant appears to be inviting the Court to do is to construe the absence of information in the 2018 DFAT Report as a positive indication that DFAT was aware of reports of harassment or detention specifically for displaying tattoos with Christian symbols. I reject the view that that was the only inference that can be drawn from the material. In the end, given the authorities I have referred to earlier, I am satisfied it was open to the Authority to regard the 2016 DFAT Report to decide how best to use the country information and how much weight ought to be attributed to it. As a result, I would dismiss ground four of the grounds of review.
For all of the above reasons, I am not satisfied that the Authority has made an error that amounts to jurisdictional error. I therefore dismiss the Application.
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Judge Blake
Associate:
Date: 26 June 2020
Key Legal Topics
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Jurisdiction
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Standing
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