BBX18 v Minister for Home Affairs
[2023] FedCFamC2G 495
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BBX18 v Minister for Home Affairs [2023] FedCFamC2G 495
File number: MLG 557 of 2018 Judgment of: JUDGE RILEY Date of judgment: 15 June 2023 Catchwords: MIGRATION – Immigration Assessment Authority – protection visa – whether the Authority erred in considering that there were exceptional circumstances justifying the consideration of new material – whether the Authority’s decision was affected by a reasonable apprehension of bias - whether the Authority failed to consider an integer of the applicant’s claim that emerged from the Authority’s own findings. Legislation: Migration Act 1958 ss.473DB, 473DC, 473DD Cases cited: CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76; (2019) 375 ALR 47; [2019] HCA 50
FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 274 FCR 456; [2020] FCAFC 29
MBJY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 284 FCR 152
Minister for Immigration and Border Protection v AMA16 (2017) FCR 534; [2017] FCAFC 136
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CRS20 [2022] FCA 579
Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; (2018) 353 ALR 600; (2018) 92 ALJR 481; [2018] HCA 16
Webb & Hay v The Queen (1994) 181 CLR 41; (1994) 122 ALR 41; (1994) ALJR 582; (1994) 73 A Crim R 258; [1994] HCA 30
Division: Division 2 General Federal Law Number of paragraphs: 80 Date of hearing: 29 March 2023 Place: Melbourne Counsel for the Applicant: Andrew White Solicitor for the Applicant: George Liberogiannis & Associates Counsel for the First Respondent: Andrew Yuile Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: No appearance Solicitor for the Second Respondent: Australian Government Solicitor ORDERS
MLG 557 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BBX18
ApplicantAND: MINISTER FOR HOME AFFAIRS
First RespondentIMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
judge riley
DATE OF ORDER:
15 June 2023
THE COURT ORDERS THAT:
1.The title of the proceeding be amended so that the name of the first respondent is “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The application filed on 6 March 2018 and amended on 16 March 2023 be dismissed.
3.The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $8,371.30.
Note: The form of the order is subject to the entry in the court’s records.
Note:This copy of the court’s reasons for judgment may be subject to review 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 RILEY:
INTRODUCTION
This is an application for review of a decision made by the Immigration Assessment Authority. In that decision, the Authority affirmed a decision of a delegate of the Minister not to grant the applicant a Safe Haven Enterprise Visa.
BACKGROUND
In his written submissions filed on 16 March 2023, the applicant provided the following background to this matter:
3The Applicant is a citizen of Iran. He arrived in Australia by boat on 24 November 2012.
4The Applicant met and formed a relationship with an Australian woman in March 2014.
5On 23 February 2016, the Applicant applied for the SHEV. In summary, the Applicant claimed to fear harm from Iranian authorities in the form of violent extortion concerning valuable intellectual property the Applicant owned in respect of an invention.
6On 27 September 2016, the Applicant attended a protection interview before a delegate of the Minister. At the protection interview, the Applicant also explained that he had converted to Christianity and feared that he would be harmed for his religious beliefs if returned to Iran.
7On 10 October 2016, the Applicant’s representative provided a short email submission attaching support letters from members of the community addressed to the Applicant’s conversion to Christianity.
8On 11 January 2017, the delegate wrote to the Applicant seeking the Applicant’s response to the assertion that the Applicant’s relationship with an Australian woman while still married to his Iranian wife was in “direct contradiction to the teachings of the church”.
9The Applicant responded to the delegate’s letter by statutory declaration dated 7 March 2017.
10On 5 April 2017, an Australian solicitor wrote to the delegate on behalf of an anonymous third party attaching copies of ‘submissions’ that had been made to the Department of Immigration and Border Protection, Centrelink, the Foreign Investment Review Board and the Australian Tax Office. The submissions concerned the Applicant’s financial position and property holdings which were alleged to contravene Australian laws, and also contained broader allegations that the Applicant had engaged in deceptive and fraudulent behaviour to obtain property from his Australian partner.
11 On 6 April 2017, the delegate wrote to the Applicant seeking his response to a summary of the adverse information received from the anonymous third party.
12 On 12 April 2017, the Australian solicitor wrote to the delegate again making further allegations that the Applicant had contravened Australian law, including by failing to dispose of land in accordance with an order of the Assistant Commissioner of Taxation.
13 On 20 April 2017, the Applicant’s representative responded to the delegate’s letter. That response included a letter from the Applicant’s partner’s solicitor who confirmed his instructions to make a gift of property to the Applicant “because he took good care of her” and a letter from the Applicant’s partner’s GP dated 6 April 2017.
14 On 26 April 2017, the delegate refused to grant the Applicant the SHEV. In broad summary, the delegate accepted that the Applicant had had a disagreement with Iranian authorities over his invention but did not accept that the Applicant would be at risk of persecution over the invention. The delegate also did not accept that the Applicant had genuinely converted and found that he would not practice Christianity if returned to Iran.
15 On 1 May 2017, the Applicant’s application was referred to the Authority for review.
16 On 22 May 2017, the Applicant provided a further written submission to the Authority.
17 On 1 February 2018, the Authority affirmed the delegate’s decision to not grant the SHEV. In broad summary, the Authority was not satisfied that the Applicant’s dealings with the Iranian authorities led to them having any adverse interest in him. The Authority accepted that the Applicant’s engagement with Christian communities in Australia was for a genuine purpose, but did not find the Applicant’s evidence to be indicative of a genuine belief in or commitment to the practice of Christianity and did not accept that the Applicant would identify as a Christian or practice Christianity if returned to Iran.
(footnotes omitted)
In his written submissions filed on 23 March 2023, the Minister accepted that summary of the background to the matter, subject to additional matters alluded to in argument.
MATERIAL RELIED UPON
The applicant relied upon:
(a)the application filed on 6 March 2018 and amended on 16 March 2023 (“the application”);
(b)the court book filed on 20 February 2019;
(c)his written submissions filed on 16 March 2023; and
(d)the joint bundle of authorities emailed to chambers on 28 March 2023.
The Minister relied upon:
(a)his response filed on 16 March 2018;
(b)the court book filed on 20 February 2019;
(c)his written submissions filed on 23 March 2023; and
(d)the joint bundle of authorities emailed to chambers on 28 March 2023.
GROUNDS 1 AND 2
The first and second grounds of review were omitted in the amended application filed on 16 March 2023.
GROUND 3
The third ground of review in the application is:
The Authority’s finding that there were exceptional circumstances to justify its consideration of the new information was made without probative basis, with the result that the Authority failed to conduct its statutory task.
Particulars
Subject to Part 7AA, s 473DB requires the Authority to review a decision in respect of the Applicant on the papers on the basis of the review material (as defined in s 473) and without accepting or requesting new information.
Subject to Part 7AA, s 473DC allows the Authority to get new information (as defined) that was not before the Minister when the Minister made the decision in respect of the Applicant and that the Authority considers may be relevant.
However, s 473DD provides that the Authority must not consider any new information unless it is satisfied that there are exceptional circumstances which justify considering the new information.
A delegate of the Minister for Immigration and Border Protection refused to grant the Applicant a Safe Haven Enterprise Visa on 26 April 2017, without referring to or relying on a DFAT report dated 21 April 2016 (DFAT report).
The Authority relied upon the DFAT report without identifying any basis or evidence for its satisfaction that there were exceptional circumstances that justified considering the new information.
Section 473DB of the MigrationAct1958 (“the Act”) provided as follows:
473DB Immigration Assessment Authority to review decisions on the papers
(1)Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB:
(a) without accepting or requesting new information; and
(b) without interviewing the referred applicant.
(2)Subject to this Part, the Immigration Assessment Authority may make a decision on a fast track reviewable decision at any time after the decision has been referred to the Authority.
Note: Some decisions to refuse to grant a protection visa to fast track applicants are not reviewable by the Immigration Assessment Authority (see paragraphs (a) and (b) of the definition of fast track decision in subsection 5(1)).
Section 473DC of the Act provided as follows:
473DC Getting new information
(1)Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:
(a)were not before the Minister when the Minister made the decision under section 65; and
(b)the Authority considers may be relevant.
(2)The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(3)Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a) in writing; or
(b) at an interview, whether conducted in person, by telephone or in any other way.
Section 473DD of the Act provided as follows:
473DD Considering new information in exceptional circumstances
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a)the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b)the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i)was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii)is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.
The Authority said at paragraph 4 of its reasons for decision that:
I have obtained new information from a report of the Department of Foreign Affairs and Trade (DFAT).1 The information is about classes of persons of which the applicant is a member (asylum seekers returning to Iran and Muslims who have left Islam) and is relevant to determining claims which arise on the material before me but were not considered by the delegate. I am satisfied there are exceptional circumstances to justify considering the information.
FN 1:Department of Foreign Affairs and Trade (DFAT), "DFAT Country Information Report Iran", 21 April 2016, CIS38A8012677.
In his written submissions filed on 16 March 2023, the applicant said in relation to this ground that:
18In conducting its review the Authority was only permitted to consider new information that had not been before the delegate if satisfied that there were exceptional circumstances for it to do so.19 An assessment of exceptional circumstances must take into account all relevant circumstances.20 A material error in the exercise of power under s 473DD will be a jurisdictional error.21
19 In the present case, the Authority obtained and relied upon a report of the Department of Foreign Affairs and Trade (DFAT report) concerning the conditions in Iran. The Authority’s consideration of the requirements of s 473DD(a) was contained at [4] of its decision. It there said:
I have obtained new information from a report of the Department of Foreign Affairs and Trade (DFAT). The information is about classes of persons of which the applicant is a member (asylum seekers returning to Iran and Muslims who have left Islam) and is relevant to determining claims which arise on the material before me but where (sic) not considered by the delegate. I am satisfied there are exceptional circumstances to justify considering the information.
20 The Authority’s reasoning at [4] was conclusory and disclosed no rational or probative basis for it being satisfied that there were exceptional circumstances for considering the new information. The mere fact that the report was relevant was self-evidently not an exceptional circumstance. The Authority gave no consideration to whether the material before the delegate already included country information concerning the classes of persons to which the Applicant belonged. Nor did Authority address the fact that the DFAT report predated the delegate’s decision but was nevertheless not in the material that had been before the delegate provided to the Authority by the Secretary.
21 It should be concluded that the Authority’s finding that there were exceptional circumstances justifying consideration of the DFAT report was made without any probative basis. The Authority’s exercise of power to receive and consider the DFAT report miscarried in a way that affected the whole of the Authority’s exercise of jurisdiction.
FN 19:Section 473DD(a).
FN 20:Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111 at [104] (Kenny, Tracey and Griffiths JJ), citing with approval BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958 at [39]-[41] (White J); Minister for Immigration and Border Protection v CQW17 (2018) 264 FCR 249 at [51] (McKerracher, Murphy and Davies JJ).
FN 21:As to materiality in this context see BXT17 at [142].
In his written submissions filed on 23 March 2023, the Minister said in relation to this ground that:
4.It is essential to understand the statutory scheme in considering this ground. The starting point or primary requirement is that the IAA will make its decision on the review “on the papers”, or having regard to the material provided by the Secretary under s 473CB, without accepting or requesting new information: s 473DB; Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at [22].
5.However, there are exceptions to this general rule, including that the IAA can “get” any information (“new information”) that was not before the Minister and that it considers to be relevant under s 473DC; Plaintiff M174 at [23]. The “new information” that can be sought by the IAA must meet the threshold requirement in s 473DD before it can be considered by the IAA: s 473DD; Plaintiff M174 at [24]. Whether or not there are “exceptional circumstances” for considering a piece of new information, within s 473DD(a), is an “evaluative judgment”: Plaintiff M174 at [75]. What will amount to exceptional circumstances is “inherently incapable of exhaustive statement”: Plaintiff M174 at [30].
6. Three further points of statutory context are relevant in this case.
6.1.First, because the information at issue in this case was sought or obtained by the IAA, not provided by the applicant, only s 473DD(a) had to be satisfied. Further, in those circumstances, it is “unlikely both limbs of s 473DD(b) must always be applicable to a consideration of whether there are ‘exceptional circumstances’ justifying the consideration of new information”: CIH16 v Minister for Immigration and Border Protection [2018] FCA 1317 at [33].
6.2.Secondly, the IAA is only required to provide reasons for its “decision … on the review”: s 473EA(1)(a). In the present context, that means only the decision to affirm or remit the delegate’s decision: s 473CC. There is no obligation on the IAA to provide reasons for procedural decisions made in the course of a review. That includes a decision to get information under s 473DC or a decision that particular information fulfils the requirements of s 473DD(a): BDF17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 401 at [78]; also DLB17 v Minister for Home Affairs [2018] FCAFC 230 at [22].
6.3Thirdly, there was no requirement on the part of the IAA to give the applicant particulars of the new information, because the material was not about the applicant specifically but was about a class of persons of which the applicant was a member: s 473DE. The applicant does not assert that procedural fairness of this kind was required, but it is an aspect of the broader statutory scheme.
7.It must then be said that the error that the applicant asserts in the IAA’s decision is uncertain. The clearest articulation appears to be in AS [20], where it is said that there was no rational or probative basis disclosed for the IAA being satisfied that there were exceptional circumstances. Quite how that amounts to jurisdictional error is not explained, other than an assertion that the IAA’s power to receive new information “miscarried”.
8.In any event, the difficulty for the applicant is that, as indicated above, there was no requirement for the IAA to provide full (or any) reasoning or justification for its decision to accept the new information. And as the High Court said in Plaintiff M64/2015 v Minister for Immigration & Border Protection (2015) 258 CLR 173 at [25] , where (as here) a decision-maker is not obliged to give reasons for a decision, “it is difficult to draw an inference that the decision has been attended by an error of law from what has not been said by the [decision-maker]”.
9.Further, in this context, what the IAA did say becomes critical. In [4] Court Book (CB) 272, the IAA said that it had obtained new information in the form of a DFAT report, about a class of persons of which the applicant is a member. The IAA then said that the report “is relevant to determining claims which arise on the material before me but were not considered by the delegate” (emphasis added).
10.Contrary to what is suggested in AS [20], the IAA was not saying only that the report was relevant, but also that it was relevant to claims arising on the material and not considered by the delegate. In the IAA’s decision, the report was referred to:
10.1. as part of its consideration of both a claim arising from the applicant’s rejection of Islam (apostasy), as distinct from his conversion to Christianity (eg at [22] CB 276); and
10.2. a possible claim about return to Iran after claiming asylum in Australia (at [25]-[27]).
11.There was some information before the delegate about possible harm to converts to Christianity (see the references at CB 237), but not expressly about apostasy; and the delegate did not refer to any external or country information in respect of a claim based on return to Iran as a failed asylum seeker. This was because apostasy and return as a failed asylum seeker were not considered by the delegate, as the IAA said.
12.It was open to the IAA, in those circumstances, to seek some additional country information about a possible fear of harm arising from apostasy and about a possible fear of harm based on return as a failed asylum seeker. In the absence of the DFAT report, there was no information before the IAA to assist it in considering these additional claims. That easily comes within the realm of exceptional circumstances.
13.It follows from all of the above that there was no requirement on the part of the IAA to give the comprehensive reasons for accepting the DFAT report that the applicant asserts. A mere allegation that this decision lacked a probative basis (whatever error that might entail) cannot succeed without more. In any event, what was said by the IAA, when considered in the context of the delegate’s decision and the claims that the IAA considered, provides a more than sufficient basis to meet the requirements of s 473DD(a).
This ground is a little surprising, because it contends that the Authority should not have obtained recent and relevant country information to address two issues that the delegate did not address, but should have.
In any event, the ground must fail, largely for the reasons articulated by the Minister.
The applicant conceded that s.473DD(b) of the Act has no application in the present matter, where the new material was sourced by the Authority rather than the applicant.
The applicant conceded that there was no obligation on the Authority to provide reasons for procedural decisions, and that circumstance made it difficult to establish jurisdictional error in relation to a procedural decision, such as obtaining new information. However, the applicant argued that it was not impossible to establish such error.
The applicant argued that, in the present case, there was jurisdictional error because there was no probative basis on which the Authority concluded that there were exceptional circumstances justifying it getting new information. That is not correct. It was open to the Authority to conclude, as it did, that there were exceptional circumstances in this case consisting of the existence of a recent DFAT report that was relevant to two issues that the delegate had not dealt with but which arose on the materials before the Authority.
In Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; (2018) 353 ALR 600; (2018) 92 ALJR 481; [2018] HCA 16, Gageler, Keane and Nettle JJ said that:
[30]Quite what will amount to exceptional circumstances is inherently incapable of exhaustive statement. The word “exceptional”, in such a context, is not a term of art but “an ordinary, familiar English adjective”: “[t]o be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered” (32).
…
[75]The Authority’s choice not to consider information … was based on its lack of satisfaction that there were exceptional circumstances to justify considering that new information with the result that the precondition in s 473DD(a) was not met. That lack of satisfaction involved an evaluative judgment which was elaborately explained by the Authority. The judgment made was again open to the Authority and eminently justified by the reasons it gave.
It is not unheard of, but nor is it a regular or routine or normal circumstance, that a delegate fails to deal with issues that arise on the materials and that are the subject of recent country information that was not before the delegate. The Authority’s evaluative judgment of whether this amounted to an exceptional circumstance was open to it.
Ground 3 is not made out.
GROUNDS 4 AND 5
The fourth and fifth grounds of review were omitted in the amended application filed on 16 March 2023.
GROUND 6
The sixth ground of review in the application is:
The Authority’s decision was affected by jurisdictional error in that its processes would give rise to a reasonable apprehension of bias by reason that it received and considered material regarded by the Secretary to be ‘relevant’ which detailed allegations that the Applicant was engaging in criminal behaviour in contravention of Australian law and fraudulent conduct against a vulnerable elderly woman to deprive her of her property and unjustly enrich himself.
Particulars
A. Under s 473CB(1), the Secretary gave to the Authority a number of letters and submissions concerning the Applicant authored by an anonymous third party: CB174-208; CB214-220.
B. The letters and submissions contained a number of prejudicial allegations against the Applicant, including that:
i. The Applicant was systematically defrauding his partner, a vulnerable elderly woman, of her assets;
ii. The Applicant had acquired real property (through a gift from his partner) in contravention of the Foreign Acquisitions and Takeovers Act 1975 (Cth);
iii. The Applicant was systematically committing social security fraud in breach of Australian law;
iv. The Applicant was systematically breaching Australian taxation laws;
v. The Applicant was engaging in visa fraud and otherwise in breach of his visa conditions and immigration law;
vi. The Applicant had committed a criminal offence by failing to comply with an order of the Assistant Commissioner for Taxation,
(together, allegations).
C. The Authority read and considered the allegations: [9], CB274.
D. The allegations were irrelevant and prejudicial and might reasonably have had a subconscious effect on the mind of the Authority.
E. The allegations were of such a prejudicial kind that Authority’s statement that it considered the allegations to be irrelevant ([9], CB274) was not sufficient to ameliorate the apprehension of bias.
F. In the premises, a fair-minded lay observer might reasonably apprehend that the Authority might not have brought an impartial mind to the resolution of the Applicant’s claims.
The test of apprehended bias in the present context is whether a fair-minded lay observer might reasonably apprehend that the Authority might not bring an impartial mind to the resolution of the questions the Authority is required to decide: CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76; (2019) 375 ALR 47; [2019] HCA 50.
In his written submissions filed on 16 March 2023, the applicant said in relation to this ground:
26It was a requirement that the Authority’s processes were, and appeared to be, free from bias.26 The common law bias rule of procedural fairness was not excluded or limited by any of the provisions of Part 7AA of the Act.27 The applicable test for apprehended bias is whether a fair-minded lay observer might reasonably apprehend hat (sic) the Authority might not bring an impartial mind to the resolution of the application.28 A recognised category of apprehended bias is disqualification by extraneous and prejudicial information.29
27The Secretary of the Department of Immigration was under a duty to give the “review material” to the Authority once the matter was referred to the Authority.30 By operation of s 473CB(1)(c), the review material given by the Secretary includes “any other material that is in the Secretary’s possession or control and is considered by the Secretary … to be relevant to the review”.31
28In the present case, the Secretary provided to the Authority32 a large volume of letters and submissions that the Department had received from an anonymous third party alleging the following matters against the Applicant (prejudicial material):
•The Applicant’s relationship with his partner, a vulnerable elderly woman, was not genuine and the Applicant was systematically defrauding her of her assets;33
•In particular, at the time of the allegations the Applicant’s Australian partner was 90 years old and was wealthy, with a significant property portfolio worth about $20 million;34
•The Applicant (who was not yet 40 years old) received from his partner gifts of real property, large sums of cash and other expensive items from his partner, including two units in Hoppers Crossing valued at $500,000,35 a daily cash allowance of $200,36 $20,000 cash in October 2014,37 $10,000 cash in March 2015,38 a Dodge SUV car.39
•Between June 2013 and June 2015, the Applicant’s partner’s bank balance had diminished from $800,000 to only $16,000;40
•The Applicant had acquired for himself more than $500,000 in cash payments;41
•The Applicant’s ownership of the units at Hoppers Crossing was a criminal offence in contravention of the Foreign Acquisitions and Takeovers Act 1975 (Cth);42
•The Applicant likely committed criminal offences including social security fraud43 and was systematically breaching Australian laws relating to Centrelink entitlements;44
•The Applicant likely committed criminal offences by systematically breaching Australian taxation laws;45
•The Applicant had committed a criminal offence by failing to comply with an order of the Assistant Commissioner for Taxation;46
•The Applicant was engaging in visa fraud, was in breach of his visa conditions and was in breach of public interest criteria PIC2022 and PIC2020.47
29It should be concluded that the Authority in fact had regard to the prejudicial material. First, because it was a statutory requirement that the Authority consider the review material provided to it by the Secretary under s 473CB.48 And second, because the Authority expressly referred to the “information provided by the third party” at [9],49 where it said:
I … do not view the information provided by the third party as relevant to determining the applicant’s claims for protection.
30The apprehended bias rule is concerned with preserving the public appearance of independence and impartiality. The rule does not require a finding that the irrelevant material affected the decision or that there was actual bias.50 In certain circumstances, a fair-minded lay observer might reasonably apprehend that irrelevant and prejudicial material might have a subconscious prejudicial effect on the mind of a decision-maker even where the decision-maker had expressly stated that it had not considered that information.51
31The Court faced circumstances of that nature in FSG17, a case in which the Secretary had provided to the Authority a court attendance notice disclosing that the visa applicant had been charged with a crime relating to the sexual abuse of a child. The Court concluded as follows (emphasis added):
[42]In the present case, we consider that the information is of such a prejudicial kind that a fair-minded lay observer might reasonably consider that it would be difficult for the decision-maker to put the information out of his or her mind in determining whether to grant a visa. In other words, a fair-minded lay observer might reasonably consider that the information is of a kind that might subconsciously affect the Authority’s approach to the decision, notwithstanding that the Authority consciously endeavoured to disregard the information.
…
[44]In the context of a review under Part 7AA of the Act, if highly prejudicial but irrelevant information is given to the Authority, procedural fairness may demand more than the Authority merely disavowing reliance on the information. …
32In the present case, the prejudicial material was self-evidently highly prejudicial, containing allegations of fraud and unconscionable conduct against a vulnerable elderly woman involving the deprivation from her of substantial sums of money and other valuable property. It was designed by its author to excite feelings of scandal and opprobrium. Once known, the allegations could not be un-known. It should be concluded that upon having read and considered the prejudicial material, it would have been impossible for the Authority to put that information out of its mind.
33 It should be concluded that the prejudicial material was of such a prejudicial kind that procedural fairness demanded more than the Authority’s statement that it did not consider the information relevant to determining the Applicant’s claims for protection.52 The fact that the Authority went on to determine the Applicant’s case after considering the prejudicial material would be likely to cause a reasonably informed and fair-minded lay observer to apprehend that the Authority might not have reached its decision with an open mind, including because of the subconscious prejudicial effect on the Authority’s mind.
34Finally, it should be regarded as of no consequence that the delegate in this case provided the Applicant with an opportunity to respond to a high-level summary of the prejudicial material.53 First, because the delegate’s summary of the prejudicial material was necessarily incomplete. It included no reference to the allegations that the Applicant had contravened Australian taxation law and the law relating to Centrelink entitlements, no reference to the content of allegations communicated by letter dated 12 April 2017, and no particulars of the extent of the allegations that the Applicant had been fraudulently enriching himself at the expense of his partner. The summary could not convey the full extent of the scandal contained within the letters and submissions themselves. Second, because the bias rule is separate and distinct from the common law procedural fairness hearing rule requiring an affected person be given an opportunity to deal with adverse information.54 The latter rule was excluded from the processes of the Authority by operation of Division 3 of Part 7AA of the Act.
35It should be concluded that the Authority’s consideration of the prejudicial material gave rise to an apprehension that the Authority’s processes were not free from bias amounting to jurisdictional error.
FN 26:Section 473FA.
FN 27:FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 274 FCR 456 at [32(a)] (Bromberg, Davies and O’Bryan JJ) citing CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76
FN 28:FSG17 at [32(b)].
FN 29:Webb v the Queen (1994) 181 CLR 41 at 74 (Deane J); FSG17 at [29].
FN 30:Section 473CB(1).
FN 31:Section 473CB(1)(c); CNY17 at [6] (Kiefel CJ and Gageler J).
FN 32:A Notice to Admit concerning this allegation of fact was served on the Minister on 15 March 2022.
FN 33:CB183.
FN 34:CB183; CB194.
FN 35:CB183-184; CB194.
FN 36:CB195.
FN 37:CB195.
FN 38:CB195.
FN 39:CB184.
FN 40:CB195-196; CB201.
FN 41:CB201.
FN 42:CB190-191; CB206.
FN 43:CB181; CB203.
FN 44:CB183; CB185.
FN 45:CB176-178; CB197.
FN 46:CB216-217.
FN 47:CB207.
FN 48:Section 473DB(a).
FN 49:CB274.
FN 50:FSG17 at [32(c)]; CNY17 at [70] (Gordon and Nettle JJ).
FN 51:FSG17 at [32(d)], [41] citing CNY17 and Minister for Immigration and Border Protection v AMA16 (2017) 254 FCR 534 at [76]-[77].
FN 52:As in FSG17.
FN 53:By letter dated 6 April 2017 at CB210.
The allegations in the present case were made in writing by a lawyer on the instructions of an anonymous client. It is not too difficult to infer that the anonymous client was the elderly woman’s estranged son, who could see his inheritance slipping away.
The Minister conceded that it is possible for apprehended bias to arise in circumstances where the Authority is provided with irrelevant and prejudicial information about an applicant: CNY17, FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 274 FCR 456; [2020] FCAFC 29, MBJY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 284 FCR 152; [2021] FCAFC 11 and BYX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 41.
However, the Minister submitted that:
15.It is important to note, however, that whether apprehended bias is made out in any particular case will always depend on the legal, statutory and factual context of the case: Isbester v Knox City Council (2015) 255 CLR 135 at [20]; CNY17 at [20]; [58]. Ultimately, the question is whether, “having regard to the context, and adopting the hypothetical informed lay observer perspective such a person might conclude that the material might lead to the decision-maker being influenced by [the asserted irrelevant and prejudicial] material”: MBJY at [52].
16.Deciding this question requires consideration of such matters as: the nature of the material and whether it is irrelevant; the kind and extent of the prejudice in the material; the nature of the decision maker; any remarks made by the decision maker in any hearing; any relevant remarks of the decision-maker in the reasons for decision; whether the applicant was informed of the existence of the irrelevant information and given a reasonable chance to comment on it: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CRS20 [2022] FCA 579 at [36].
17.In the present case, the Minister submits that the hypothetical lay observer, properly informed as to the statutory scheme and the circumstances of this case, would not think that the decision-maker might not bring an impartial mind to the decision, for the following reasons.
The Minister relied particularly on Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CRS20 [2022] FCA 579 at [36], where Justice Jagot, sitting in the Federal Court, said the relevant considerations in the case of an alleged subconscious effect of prejudicial material included at least:
(1)the nature of the material and whether it is irrelevant;
(2) the kind and extent of prejudice the irrelevant material might involve;
(3)the nature of the decision-maker;
(4) remarks made by the decision-maker during the course of a hearing;
(5) remarks made by the decision-maker in the reasons for decision as to what the decision-maker has done with the irrelevant material (but not self-serving disavowals of any possible apprehension of bias); and
(6) whether the affected person was informed about the existence of the irrelevant information and given a reasonable opportunity to comment on it.
The Minister offered a number of reasons for saying that a reasonable apprehension of bias did not arise in the present case.
The Minister’s first reason was that the information was not actually “extraneous”, within the meaning of that term as used by Deane J in Webb & Hay v The Queen (1994) 181 CLR 41; (1994) 122 ALR 41; (1994) ALJR 582; (1994) 73 A Crim R 258; [1994] HCA 30 at [12]. His Honour there identified four “main categories” of cases leading to a reasonable apprehension of bias, and said:
The fourth [category] is disqualification by extraneous information … and consists of cases where knowledge of some prejudicial but inadmissible fact or circumstance gives rise to the apprehension of bias.
The Minister submitted that the prejudicial material in the present case was not inadmissible because it had been before the delegate, and therefore had to be before the Authority as well.
This argument places great weight on the word “inadmissible” in Webb. Webb is not a statute, and the words in Webb should not be construed as if it were. Moreover, in Webb, Deane J expressly said that he was identifying the “main categories” of cases. His Honour was not purporting to be exhaustive.
It should also be remembered that Webb concerned a criminal proceeding, where material that is irrelevant will be deemed inadmissible. The Authority is not subject to the rules of evidence, so concepts of admissibility are not applicable.
Applying Webb to the context in which the Authority operates, the word “inadmissible” can best be understood as meaning “irrelevant”. It follows that the fourth category identified in Webb is applicable to the present case.
The prejudicial material in the present case was irrelevant to the applicant’s protection claims, but still had to be before the Authority because it was discussed in the delegate’s reasons for decision and some of it had been provided by the applicant himself. The Minister argued that the fair-minded lay observer would understand how and why the material came to be before the Authority, and that reduced the scope for prejudice.
I do not consider how and why the material came to be before the Authority necessarily makes much difference, though it is part of the overall context. The question is whether, having got the material, it might have created a reasonable apprehension of bias.
The Minister’s second reason was that the delegate had sought the applicant’s comments on a summary of the allegations. It is true that Jagot J in CRS20 regarded this as a relevant consideration. I accept that it is, to an extent. However, by itself, seeking an applicant’s comments on irrelevant and prejudicial material is not a complete answer to a claim of apprehended bias. The bias rule is an aspect of the procedural fairness rule, but it is separate from the rule about alerting an applicant to adverse information and seeking a response to it. In that regard, the Full Court of the Federal Court said in FSG17 at [27] that:
It is important to note at the outset that the appellant’s ground of review is based on the principles of apprehended bias. It is not based on the separate principle of procedural fairness considered in Kioa v West [1985] HCA 81; (1985) 159 CLR 550 and Applicant VEAL of 2002v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88) (VEAL) that a person affected by an administrative decision should be given an opportunity to deal with adverse information that is credible, relevant and significant to the decision to be made.
The Minister’s third reason was that applicant was aware that the prejudicial and irrelevant material was before the Authority but did not try to persuade the Authority to set aside the material. For this point, the Minister relied on MBJY, where O’Callaghan and Colvin JJ said at [81]:
Fourthly, the contentious material was not before the Tribunal surreptitiously or in circumstances that were not known to the parties, particularly the appellant. Rather, it was disclosed to the appellants as part of the G documents. If there was a genuine concern of the kind now contended for then steps could and would be expected to be taken by counsel to seek to remove the contentious material from that which was included in the tender of those documents. The fair-minded lay observer would conclude from the open nature of the way in which the material was presented that there was less concern for compromise of the independence of the process. Further, the fair-minded lay observer would conclude from the conduct that led to the materials being received without objection that there was likely no concern at that time that they would compromise the independence of the Tribunal. All the more so when the precise nature of the argument was not formulated until the present appeal (see the reasoning below on the question of leave to appeal).
It is true that, in the present case, the applicant made submissions to the Authority, but did not ask the Authority to disregard the prejudicial and irrelevant material. It was only upon judicial review that it was suggested that the material might give rise to a reasonable apprehension of bias. The applicant’s silence on the issue before the Authority is not determinative, but it is part of the overall context.
The fact that the prejudicial material was not surreptitiously before the Authority does not advance the matter a great deal, but, again, is part of the overall context. If the material had been surreptitiously before the Authority, there may have been a different point, about not alerting the applicant to material before the Authority, but that did not arise in the present case.
The Minister’s fourth reason was that the Authority had expressly said that it did not view the prejudicial information provided by the anonymous third party as relevant to the applicant’s protection claims. That is not determinative. In FSG17 at [32], the Full Court of the Federal Court distilled the principles emerging from the High Court’s decision in CNY17 as including the following:
…
(c)… apprehended bias is not remedied by the decision-maker disregarding the irrelevant and prejudicial material. The question is directed to what a fair-minded lay observer might reasonably apprehend.
(d)… in certain circumstances, a fair-minded lay observer might reasonably apprehend that irrelevant and prejudicial material might have a subconscious (prejudicial) effect on the mind of a decision-maker notwithstanding that the decision-maker had consciously and expressly put the information aside as irrelevant: at [28] – [29] per Kiefel CJ and Gageler J, at [97] per Nettle and Gordon JJ (this point was not expressly addressed by Edelman J).
In CNY17 itself, Nettle and Gordon JJ said:
97Of course, it does not matter whether the IAA … in fact put the prejudicial information aside. There is a risk of subconscious bias here, and that risk cannot be cured by putting the information aside.
98The idea that the information could or would be put aside is also difficult to reconcile with the statutory scheme. As noted above, the Secretary endorses the information which he or she gives to the IAA as “relevant” to the IAA’s task. The IAA then has to consider that information.
99The Minister submitted that administrative decision-makers routinely set aside irrelevant material. But that is not the point. The material was not only irrelevant, but also prejudicial. Putting the material aside does not overcome the subconscious bias which might result from seeing that material. Nor did the IAA expressly state that the material had been put to one side.
(citations omitted) (emphasis added)
These cases make it clear that the Authority claiming to have put aside prejudicial material is not necessarily enough to overcome a reasonable apprehension of bias.
The Minister’s fifth reason was that the prejudicial and irrelevant material in the present case was less prejudicial than the material in other cases in this area. The Minister said that was particularly so because, in the present case, the prejudicial material came from an anonymous third party, whereas in CNY17, the prejudicial material came from government authorities, and in FSG17, BYX17 and MBJY, the information came from the police. The Minister submitted that material from the government or police was much weightier and more authoritative than material from an anonymous third party who appeared to be self-interested, and about which the Authority might have been sceptical.
That argument could have some persuasive force, except that there was no real dispute about the accuracy of the basic allegations in the material. Indeed, the applicant provided some of the material himself.
The undisputed facts of the case were that:
(a)the applicant, at the age of less than 40 years old, was in an intimate partner relationship with a 90 year old woman;
(b)she had transferred a property to him, as a gift, because he was taking care of her;
(c)the Australian Taxation Office required the applicant to dispose of the property, for reasons connected with restrictions on foreign investment;
(d)the applicant had agreed to transfer the property back to the woman and eventually did;
(e)the woman was alienated from her son; and
(f)the woman, in a letter of intent, stated that she intended to leave something in her will to the applicant and asked that her will not be challenged.
In addition, the allegations included claims that the applicant had defrauded the woman, she had given the applicant over $500,000, her bank balance had been reduced from $800,000 to $12,000, and the applicant had broken laws relating to Centrelink benefits, taxation and foreign investment. While the anonymous allegations contained a lot of colour, detail and the characterisation of the applicant’s behaviour as fraudulent and criminal, they did not add substantially to the admitted facts of the case. The admitted facts of the case were that the applicant had obtained financial benefits from an elderly woman, and one of those financial benefits had been required by a governmental authority to be repaid. It follows that the source of the allegations, being anonymous rather than governmental, would not have led the Authority to be sceptical about the bulk of the allegations.
The Minister also submitted that the material in the present case was less prejudicial than the material in other cases where there had been found to be a reasonable apprehension of bias.
Minister for Immigration and Border Protection v AMA16 (2017) FCR 534; [2017] FCAFC 136 concerned a charge of sexual assault of a woman, which was dismissed after the Authority made its decision and before the judicial review.
In CNY17, the prejudicial material was described at [96] as:
… assertions that the appellant had a history of aggressive or challenging behaviour, had some link to investigations of a "riot" and was himself the subject of investigations for unspecified matters, had been of interest to “Det Intel”, and had been refused bridging visas in the past.
In FSG17, the prejudicial material was that the applicant had been charged with having a sexual relationship for three years with a girl who was under the age of 16 years.
On the other hand, there are a number of cases where it was found that a reasonable apprehension of bias did not arise, notwithstanding that prejudicial material had been provided to the decision-maker.
In MBJY, the applicant was convicted of three sexual offences against his step-daughter and acquitted of a fourth. However, the material relating to the fourth was held not to give rise to a reasonable apprehension of bias, in circumstances where the question for the Tribunal was whether the applicant passed the character test.
In BYX17, the applicant was investigated by the police for a serious sexual offence but no charges were laid.
CRS20 was an appeal by the same applicant as the applicant in FSG17. The court in FSG17 had remitted the matter to the Authority, the Authority had again affirmed the delegate’s decision, and the applicant had again sought judicial review. The prejudicial material was basically the same as in FSG17, except that the Authority as secondly constituted did not have the irrelevant and prejudicial material itself, but only the judgment of this court and the judgment of the Full Federal Court in FSG17. On appeal against the review of the Authority’s second decision, in CRS20, it was found that a reasonable apprehension of bias did not arise.
What these cases show is that the outcome really depends on the entirety of the facts of the case, not just the “seriousness” of the underlying prejudicial material. In CNY17, Nettle and Gordon JJ said at [101]:
This conclusion [that a reasonable apprehension of bias arose] depends on the facts of this case. There may be other cases in which the material given to the IAA was somewhat prejudicial to an applicant, but not such as might lead a fair-minded lay observer to apprehend a lack of impartiality. The particular point at which prejudicial information will lead to apprehended bias cannot be identified in the abstract. Here, the information was such that a fair-minded lay observer might think it would bias the decision-maker against the grant of a visa to the appellant.
Having said that, I do accept the Minister’s argument that the prejudicial material in the present case is less prejudicial than the material in some other cases in this area. In my view, the prejudicial material in the present case falls well short of the sexual abuse of children that has occurred in other cases. At worst, the prejudicial material in the present case amounted to financial abuse of an adult.
However, in assessing the degree of prejudice, the fair-minded lay observer would note that the woman in question was of sound mind, and made a series of deliberate decisions to give some of her money and property to the applicant, who she said cared for her and assisted her. The fair-minded lay observer would be conscious that the applicant may have manipulated the woman, but also that she may have made a rational decision about her considerable wealth in circumstances where her only child had abandoned her.
All in all, I accept the Minister’s submission that the degree of prejudice of the material in the present case is considerably less than it is in some of the other cases in this area.
The Minister’s sixth reason was that the Authority is a professional decision-making body that is well able to put aside relevant information. That submission based on CRS20, where Jagot J, sitting in the Federal Court, said at [59] that a reasonable apprehension of bias did not arise in that case for numerous reasons including:
…
(10)the IAA is not a judicial decision-maker but is a professional decision-making body taken to understand the statutory scheme involved, the consequential irrelevance of the highly prejudicial material, and the requirement of procedural fairness to inform the first respondent about the material and give the first respondent an opportunity to comment on it. In the present case, the differently constituted IAA discharged its responsibilities consistently with these requirements and disavowed the material expressly in its reasons in clear and unequivocal terms;
(11)while there might be some cases in which the differently constituted IAA has done all that can be done to remove any appearance of apprehended bias but the test is still satisfied, it should be accepted that professional decision-makers are capable of and do routinely put aside irrelevant information without that fact giving rise to any concern that the fair-minded and properly informed lay observer might reasonably consider that the decision-maker might not bring an impartial mind to bear as a result of the potential subconscious effect of the material on the decision-maker’s mind: CNY17 HCA at [28]. If that were not so, the system of IAA review could not function; and
(12) in all of these circumstances the test that a fair-minded and properly informed lay observer might reasonably consider that the decision-maker might not bring an impartial mind to bear is not satisfied because:
(a)while the fair-minded and properly informed lay observer appreciates that the differently constituted IAA is not “a passionless thinking machine” (CNY17 HCA at [28]) the observer also appreciates the capacity of a professional decision-maker to put aside the irrelevant, even if the irrelevant is highly prejudicial (as in this case);
(b)the risk of subconscious bias is itself attenuated if the decision-maker is aware of that risk, and it should be inferred in this case that the differently constituted IAA was so aware given that it clearly understood the import of the judgments it had been given by the Secretary and acted accordingly to expose to the first respondent its receipt of the judgments and the references they contained; and
(c)the course of conduct of the differently constituted IAA, including its reasons for decision, expose the care which it took to put the irrelevant matters out of its mind.
Of course, the Authority is a professional decision-making body and it is able to set aside irrelevant material. However, the very existence of the apprehended bias ground of review reflects an acknowledgement that, sometimes, the fair-minded lay observer might reasonably apprehend that even a professional decision-maker might not bring an impartial mind to the question at issue.
The applicant argued that the material in the present case was very prejudicial because it asserted that the applicant had exploited a vulnerable, elderly woman, left her unable to pay her bills, and had broken laws relating to social security, taxation and foreign investment. As stated in CNY17 at [101], whether a reasonable apprehension of bias arises depends on the particular facts of the case.
In my view, the allegations of breaking laws relating to social security, taxation and foreign investment could readily be put aside by the Authority: CRS20. The allegations were fairly low-grade examples of the type of contraventions alleged. Except for the foreign investment issue, which was explained and corrected, the allegations were at the level of assertion and suspicion rather than established fact. They are precisely the kind of thing that decision-makers can and do routinely exclude from their minds, and do not create a reasonable apprehension of bias. The applicant accepted as much during oral argument.
The allegation that the woman was left unable to pay her bills is also in the nature of an unsubstantiated assertion. It was an assertion made by a lawyer on instructions from an anonymous client, who may be inferred to be the woman’s estranged son. It has the flavour of hyperbole, as the asserted figures do not indicate that the woman would have depleted all of her assets. The anonymous person had said that the woman had assets of $20 million. The amounts she is said to have dissipated add up to a few million dollars. Again, it is the type of thing that decision-makers can and do routinely exclude from their minds, and that do not create a reasonable apprehension of bias.
The allegation of exploiting and defrauding a vulnerable, elderly woman is in a different category however. The material before the court shows that the woman willingly gave money and assets to the applicant and intended to leave him more in her will. There is material that indicates that the woman was of sound mind (CB228) and appreciated the companionship and help that the applicant had given to her (CB227). That is not fraud or exploitation. It is possibly somewhat transactional, but it speaks of a warm and caring relationship, in circumstances where the elderly woman’s only child had more or less abandoned her.
In my view, this is not a case where a fair-minded lay observer might reasonably think that the Authority might not bring an impartial mind to the determination of the matter. The fair-minded lay observer would think that:
(a)the allegedly prejudicial material had been before the delegate and had to be before the Authority;
(b)the material was irrelevant to the questions that the Authority had to decide;
(c)the Authority said that it had disregarded the material because it was irrelevant;
(d)the allegations about breaches of the law were relatively minor, in most cases were only suspicion, and could readily be set aside by the Authority;
(e)the allegation about the woman being unable to pay her bills was hyperbole and anonymous and could readily be set aside by the Authority;
(f)the age difference between the woman and the applicant was very large, but not unheard of, particularly if the genders were reversed;
(g)the allegation about the woman being defrauded was not accurate, because she was of sound mind and a willing participant;
(h)the allegation that the woman was being financially abused was contested, and not resolvable on the evidence before the Authority, because she was of sound mind, a willing participant, and gained comfort from her relationship with the applicant; and
(i)even if the applicant had been somewhat manipulative, the material overall was towards the lower end of the range of prejudicial material, and the Authority could readily set it aside without having any subconscious bias.
The prejudice in this case falls far short of the prejudice in some of the other cases in this area, where, for example, there has been sexual abuse of children. While the elderly can be very vulnerable, the woman in the present case was not in that category. She had her faculties and made a deliberate choice, in circumstances of considerable wealth. Generally speaking, people are entitled to dispose of their assets as they wish. In the present case, I do not consider that the fair-minded lay observer might reasonably apprehend that there might have been unconscious or other bias on the part of the Authority.
This ground is not made out.
GROUND 7
The seventh ground of review in the application is:
The Authority’s decision was affected by jurisdictional error in that it constructively failed to exercise its jurisdiction by failing to consider, properly or at all, an integer of the Applicant’s claims.
Particulars
A.The Applicant claimed to fear harm on return to Iran in the form of threats or violent extortion in relation to a valuable invention (invention claim).
B.It was an aspect of the invention claim that unidentified people had attended his home in Iran looking for him for three years following his departure from Iran and had at least once violently assaulted his wife.
C.The Authority did not doubt the truth of the invention claim.
D.The Authority dismissed the invention claim on the basis that it could not be satisfied that the people who attended his house were connected with the Iranian government: [12], CB274.
E.The Authority failed to consider the extent to which violent people searching for the Applicant in Iran nevertheless engaged Australia’s protection obligations.
F.In the premises the Authority failed to complete its statutory task.
The Authority summarised this aspect of the applicant’s claims at [5] of its reasons for decision as follows:
•The applicant had a number of ideas for inventions. One of these involved generating electricity from fish movements in the water as an alternate power supply for fish farms. The applicant tried to obtain land to establish a fish farm, but most land located next to water belongs to the government, and so he needed government permission.
•In 2010 the applicant met with the Ministry for Jihad/Agriculture to apply for land for fish farming. They approved his request but kept him waiting for two years before allocating land. He believes they wanted him to get tired and slowly give them his information. He believed that if he gave the information they would make him disappear.
•After two years, the officials offered the applicant five acres to start the farm, but wanted his patent and a share in his work. The applicant refused, thinking he would set up the farm then be thrown out. The meeting ended with the Department’s security guards throwing the applicant out of the building and almost calling the police.
•The applicant left Iran about 10 to 20 days after this.
•On a number of occasions people came to his house and his wife’s business asking about his whereabouts. One person pushed his wife, causing her to fall and break her shoulder and after this she left the business and removed their son from school for a year. These people would not identify themselves but would ask for the applicant. His father said they looked like Basij. The last time this occurred was in around 2015.
In relation to this claim, the Authority said that:
10.The applicant’s claims to have an invention/project which he presented it to the Ministry of Agriculture have been made with broad consistency in an arrival interview that took place on 11 December 2012 and in the protection visa interview. During the protection visa interview, the applicant presented a number of documents relating to his plans for the fish farm and dealings with the Iranian Ministry of Agriculture. I accept on the basis of these, and the applicant’s oral evidence including descriptions of how his inventions were to work, that he approached the Ministry of Agriculture in relation to obtaining permission and land for a fish farm. He referred in both the protection visa interview and the arrival interview to the government having delayed acceptance of the project, although made no mention at the arrival interview of the government attempting to take his invention, or threatening him. However, considering his account at the protection visa interview I am willing to accept that after being kept waiting for two years he was offered land only if the Ministry were able to benefit from his invention, and that he then had an argument which ended in him being escorted from the building and the police almost being called.
11.The applicant claimed in his written claims that he was threatened to give up his invention or go to jail. He does not claim to have received any further contact from Iranian authorities in the 10-20 days between his last meeting and departure from Iran. He has said that after he left Iran, people have been visiting his wife and father asking for him, that they looked like Basij and on one occasion his wife was pushed and injured. He says these visits continued for a number of years after his departure. On his own evidence these people did not identify themselves as being from the government or indicate why they were looking for him. The applicant left the country at short notice, and people could have been inquiring after his whereabouts for any number of reasons.
12.I am not satisfied on the evidence that the applicant’s dealings with the Ministry of Agriculture led to any adverse interest in him, or intention on the part of government officials to harm him in order to obtain his invention. A substantial amount of time has now passed and I am not satisfied there is a real chance of the applicant being harmed in the reasonably foreseeable future in connection with the invention or these events.
In his written submissions filed on 16 March 2023, the applicant said in relation to this ground:
37A substantial aspect of the Applicant’s case before the Authority was that he feared harm in Iran in the form of threats or violent extortion in relation to a valuable invention. The claim as put by the Applicant was that he had invented a method of drawing renewable energy from the movement of fish in the confined spaces of a fish farm. In about 2012, he attended a meeting with members of the Iranian Ministry of Agriculture about a proposed trial of his invention. However, at the meeting the authorities demanded ownership of his patent and a share of the profits generated by the invention. The Applicant claimed that the meeting ended with him being physically removed from the building. The Applicant claimed that he left Iran within 10 to 20 days of the meeting. Relevantly, the Applicant claimed that following his departure from Iran, unidentified people continued to attend his home to ask about him for about three years (until 2015) and once physically assaulted his wife. The Applicant surmised that the people who were looking for him were Basij, a branch of the Iranian security forces (together, invention claim).56
38Critically for the purposes of ground 7, the Authority did not doubt the truth of any part of the invention claim. It did not make any finding of fact in relation to the Applicant’s claims that people had attended his home looking for him and had threatened and been violent to his family.
39Instead, the Authority dealt with the invention claim by finding, effectively, that it could not be satisfied that any person who inquired about the Applicant’s whereabouts after he left Iran was connected with the Iranian government. It said at [11]:57
On his own evidence these people did not identify themselves as being from the government or indicate why they were looking for him. The applicant left the country at short notice, and people could have been inquiring after his whereabouts for any number of reasons.
40The Authority’s reasoning at [20] was insufficient to dispose of the Applicant’s case. [The reference to [20] appears to be an error. That paragraph of the Authority’s reasons for decision dealt with a different issue.]
41The Authority left unresolved the Applicant’s claim that violent people had for a number of years continued to search for him in Iran and in the process had done physical harm to members of his family. Even if there was no basis for the Authority to be satisfied that those people were associated with the Iranian government, the prospect of violent people searching for the Applicant in Iran over many years amounted to a claim to engage Australia’s protection obligations. The Authority was required to consider and resolve the claim.58 It did not do so.
42The failure of the Authority to grapple with the claim that violent people had been searching for the Applicant in Iran amounted to a failure to consider an integer of the Applicant’s claim. In so doing, the Authority failed to complete its statutory obligation to review.
FN 56:The Applicant does not dispute the Authority’s summary of his claims at [5], CB272.
FN 57:CB274.
FN 58: The obligation on the Authority to consider claims extends to claims arising on or from the Authority’s own findings: AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503 at [26] (Collier, McKerracher and Banks-Smith JJ) citing ACE15 v Minister for Immigration and Border Protection [2017] FCA 1054 at [27] (Bromberg J).
The applicant’s point, in summary, was that the Authority had rejected the applicant’s claim that the people who had attended his home looking for him and being violent were associated with the government, but had not dealt with the claim, emerging from the Authority’s own findings, that non-governmental people had attended his home looking for him and being violent.
The Minister’s first argument on this ground was that the applicant’s claim was only that people associated with the government had attended his home looking for him and being violent. That is true. However, the Authority accepted that non-governmental people had attended the applicant’s home looking for him and being violent. Consequently, the Authority had to deal with that issue as well.
The Minister’s second argument on this ground was that the Authority had dealt with the issue of non-governmental people attending the applicant’s home looking for him and being violent by saying in paragraph 12 of its reasons for decision that:
A substantial amount of time has now passed and I am not satisfied there is a real chance of the applicant being harmed in the reasonably foreseeable future in connection with the invention or these events.
In context, “these events” means the people attending his home looking for him and being violent. The time that had passed was two or three years. The applicant first approached the government about his fish farm idea in 2010. In 2012, the applicant had the meeting with government officials and shortly afterwards left Iran. The last visit to the applicant’s home by unnamed people happened in 2015. The Authority’s decision was made on 1 February 2018. Therefore, two or three years had elapsed between the last visit by the unnamed people and the date of the Authority’s decision.
Reading the Authority’s reasons fairly, I think the Authority meant that, whoever, the unnamed people attending the applicant’s house were, after two or three years, they had lost interest. In that way, the Authority did deal with the point raised in ground 7.
This ground is not made out.
CONCLUSION
As none of the applicant’s grounds has been made out, the application must be dismissed with costs.
I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Riley. Associate:
Dated: 15 June 2023
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