BEN20 v Minister for Immigration
[2020] FCCA 3418
•16 December 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BEN20 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 3418 |
| Catchwords: MIGRATION – Application for Safe Haven Enterprise Visa (SHEV) – adverse credibility findings against applicant – no merit to claims that Authority acted unreasonably in the exercise of its discretion not to seek new information from the applicant – no merit to claims that the Authority failed to give appropriate attention to evidence before it – no merit to claims that the Authority failed to intellectually engage with the applicant’s clearly articulated claims – no jurisdictional error established – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.473DC, 473DD. |
| Cases cited: DKF17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1963. Minister for Immigration, Citizenship, Migrant Services and Multicultural Affair v BTW17 [2020] FCAFC 159. DPI17 v Minister for Home Affairs & Anor (2019) 269 FCR 134. BLS17 v Minister for Immigration and Border Protection [2019] FCA 1079. DGZ16 v Minister for Immigration and Border Protection & Anor (2018) 258 FCR 551. DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175. AVQ15 v Minister for Immigration and Border Protection (2018) 266 FCR 83. AYY17 v Minister for Immigration and Border Protection & Anor (2018) 261 FCR 503. Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611. Minister for Immigration and Citizenship v Li (2013) 249 CLR 332. |
| Applicant: | BEN20 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | BRG 159 of 2020 |
| Judgment of: | Judge Egan |
| Hearing date: | 1 December 2020 |
| Date of Last Submission: | 1 December 2020 |
| Delivered at: | Brisbane |
| Delivered on: | 16 December 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Brady QC with Ms Bratti |
| Solicitors for the Applicant: | Holding Redlich |
| Counsel for the First Respondent: | Mr Byrnes |
| Solicitors for the First Respondent: | Sparke Helmore |
| Second Respondent: | Submitting appearance save as to costs |
ORDERS
The Amended Application for Review filed on 18 June 2020 be dismissed.
The Applicant pay the First Respondent’s costs of and incidental to the application for review fixed in the amount of $7,467.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG159 of 2020
| BEN20 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Iran of Kurdish ethnicity who departed Iran on or about 15 May 2013 by using his own valid Iranian passport.
The applicant arrived in Australia as an unauthorised maritime arrival on or about 4 June 2013. On 29 June 2013, an arrival interview was conducted with the applicant, at which time relevant answers in response to questions asked of the applicant were recorded. Some of those questions and answers were as follows: [1]
[1] Court Book (CB) pp. 9 – 10 inclusive.
“Reason to Leave
32. Why did you leave your country of nationality (country of residence)?
Q. Why did you leave Iran?
A. Living in Iran is very hard at the moment both financially and socially. There is no security and safety. A few times I opened business and they didn’t let me to continue with my business and that’s why I couldn’t keep my shop open. That’s why I was unemployed for the last 2 years.
Q. Whose THEY?
A. Intelligence services it’s called Amarkin office.
Q. Where is this office located?
A. It’s in Rowansar.
Q. Is there any other reason you left Iran?
A. The other thing is, 3-4 years ago the intelligence services arrested me and interrogated me for no reason. After that they asked me to work for them. Every week they used to come to my café and they closed my café. They also didn’t give me a licence to open the café.
Q. Why were they targeting you?
A. The reason why it was the second of the 11th month is because there was a political party called Komala party. This date is the starting of the party and this group is against the government, I remember that night there was a protest and police were coming after people and I had a fruit shop at the time. They arrested me and 4 of my friends on the street. After that I had to go to court. They accused me of working for that party. After that in the court we had to sign the good behaviour agreement and they told us that if you get caught again you will be in very big problem. That’s when they started asking me to give them names and information about the family of the party to the Iranian Intelligence.
Principal Reason
Lack of economic opportunity
Reasons Not To Return To Country of Nationality
33. What do you think will happen to you if you return to your country of nationality (residence)?
Q. What do you think will happen to you if you return to Iran?
A. I am not sure what will happen to me, I have no idea what will happen.
Political Involvement
34. Have you or any members of your family been associated or involved with any political group or organisation? [X] Yes [ ] No
If ‘Yes’ provide details
2 of my cousins.
Q. Which groups are these cousins involved in?
A. Komala
Q. What’s the names of these 2 cousins?
A. [Cousin 1]
A. [Cousin 2]
Q. How are they related to you?
A. They both sons of my father’s brother.
Q. What’s your father’s brother name?
A. I am not too sure, he past away long time ago.
Q. Was your father a part of the Komala group as well?
A. No
[ ] Client [X] Family [ ] Client and Family
35. Were you or any members of your family involved in any activities or protests against the government? [X] Yes [ ] No
If ‘Yes’ provide details
I have participated in protest myself.
When there was a presidential election between Musawi and Ahmadi Najad.
Q. What did you do in the protest?
A. We did a protest in the street, the reason why Musawi won the election but they put Ahmadi Najad as the president.
[X] Client [ ] Family [ ] Client and Family
Social and Religious Groups
36. Are you a member of any particular social or religious group? [X] Yes [ ] No
If ‘Yes’ provide details
Yes I was a member of a group. We were discussing social problems.
Q. What’s the name of the group?
A. We were local group. We didn’t have an actual group. We couldn’t go out and we had to hide it and do it.
Police / Security / Intelligence Organisations
37. Have you served with a police, security, or intelligence organisation? [ ] Yes [X] No
Police / Security / Intelligence Organisations Impact
38. Were you ever arrested or detained by the police or security organisations? [X] Yes [ ] No
If ‘Yes’ please provide full details (where, when, why, for how long, etc)
Yes I have. It’s the same incident that I mentioned before.
The intelligence services arrested me and interrogated me for no reason. After that they asked me to work for them, write reports and who was working for political groups. Every week they were coming back and I refused to work for them. Every week they used to come to my café and they closed my café. They also didn’t give me a licence to open the café.
Also a few incidents when I was arrested for a day or two or few hours mainly because if I went near schools and there were girls. I got arrested for that.
38a. Did the police and security or intelligence organisations impact on your day to day life in your home country? [X] Yes [ ] No
If ‘Yes’ provide details
The intelligence services arrested me and interrogated me for no reason. After that they asked me to work for them, write reports and who was working for political groups. Every week they were coming back and I refused to work for them. Every week they used to come to my café and they closed my café. They also didn’t give me a licence to open the café.
38b. Have you ever been arrested or detained and/or charged with any offences? Explore whether detained by police/military/other organisations. Were there any charges? What were they? Length of imprisonment, outstanding warrants for arrest, issues whilst in custody).
The intelligence services arrested me and interrogated me for no reason. After that they asked me to work for them, write reports and who was working for political groups. Every week they were coming back and I refused to work for them. Every week they used to come to my café and they closed my café. They also didn’t give me a licence to open the café.
It was by police intelligence, all of them. They are all working for a big group called ‘Niru Entizami’.
Q. Were you ever detained by this group?
A. Yes one or two nights.
Q. Were you charged?
A. I wasn’t charged but I was forced to sign a good behaviour agreement and it’s only the incident I mentioned.
Local Group Activity
39. Were there any armed groups, political groups, or religious groups operating in the area you lived? [X] Yes [ ] No
If ‘Yes’ provide details
Armed groups – No
Political groups – there was a political group.
Religious groups – there was religious groups, Suni. The suni group was collecting people and giving them their ideas.
What was the nature / level of your involvement with them?
No I never work for them.”
On 11 July 2017, the applicant applied for a Safe Haven Enterprise Visa (SHEV). At the time of the making of such application, the applicant provided a statement which set out his claims. [2] Those claims were summarised at [4] of the reasons of the Immigration Assessment Authority (“the Authority”) as follows:
[2] CB pp. 65 – 71 inclusive.
“Applicant’s claims for protection
4. The applicant’s claims can be summarised as follows:
·He is from [Province A] and is of Kurdish ethnicity. He fears serious harm because of his ethnicity and because he is from a Kurdish area near the border of Iraq.
·He was born into a Sunni Muslim family but no longer believes in Islam.
·His father died when he was very young after being arrested.
·He participated in protests against the government and was subsequently arrested and accused of working for the Komala Party and was made to sign a good behaviour agreement. Afterwards he was pressured to give the authorities information about political groups which he refused. As a consequence they closed his café business and he was prevented from opening a new one.
·He was also a member of a local political group who organised some protests. If he returns he will not be able to express his political views.
·He also fears harm in Iran as a failed asylum seeker from a western country whose personal details were inadvertently released on the interest by the Department of Home Affairs in 2014.
·Since he left Iran the authorities have approached his family seeking his whereabouts.”
On 9 December 2019, the applicant attended for an interview before a delegate of the Minister (“SHEV Interview”).
On 28 January 2020, the delegate refused the applicant’s visa application, after which the matter was referred to the Authority for review.
On 19 February 2020, the applicant’s legal representative provided a further statement for consideration by the Authority. [3]
[3] CB pp. 139 – 142 inclusive.
On 26 February 2020, the Authority affirmed the decision of the delegate to refuse to grant the SHEV.
On 16 March 2020, the applicant filed an Originating Application for Review of the decision of the Authority. On 18 June 2020, the applicant filed an Amended Application for Review, the grounds relied upon at the hearing before this Court being as follows:
“Grounds of application
1. The Immigration Assessment Authority (IAA) erred in law in making its decision, and thereby engaged in jurisdictional error, in that:
(a) The IAA acted unreasonably in the exercise of its discretion, or alternatively, constructively failed to exercise its jurisdiction, in failing to exercise, or failing to consider whether to exercise, its discretion under s. 473DC to get information from the applicant or his representative;
Particulars
i. The delegate at [32] did not accept that the applicant had come to the adverse attention of the Iranian authorities;
ii. In reaching that conclusion, the IAA relied in part upon a conclusion at [28] that the Amarken was not involved in intelligence gathering activities and an implied finding that this was inconsistent with the Applicant’s contentions;
iii. The applicant contended that:
1. He was harassed by the Iranian intelligence service;
2. The Amarken office was in Rawansar where the Intelligence Unit worked;
iv. The proper exercise of the IAA’s discretion would have been to consider whether to exercise its power under s.473DC, and then to exercise that power, to obtain information from the Applicant in order to ascertain whether there was, in truth, any inconsistency between the Applicant’s claims about the conduct of the Iranian intelligence services and that intelligence unit being located at Rawansar.
(b) The IAA failed to give appropriate attention to all relevant material in making a finding of inconsistency underpinning the adverse assessment of the applicant’s credit implied by the conclusions in paragraph [32] of the IAA’s decision:
Particulars
i. The applicant’s answers to the delegate regarding the local group referred to by the applicant in paragraph [23] of his statement of claim was not inconsistent with his earlier accounts;
ii. Any vagueness in his recollections might be explained by the fact that many years had passed since the relevant events the subject of that account;
iii. Regarding the matters dealt with by the IAA at paragraph [23], those matters were minor and peripheral in nature only and were not reasonably explained by any evasion and not truly inconsistent;
iv. The IAA placed on the applicant an obligation to “convince” the IAA that the interpreter was to blame for the matters set out in paragraphs [24] of the IAA’s decision, when there was no such obligation and in any event any perceived inconsistency was otherwise explainable;
(c) The IAA failed to engage in an active intellectual process or give proper, genuine and realistic consideration to a substantial, clearly articulated argument raised on the material before the IAA:
Particulars
i. At paragraph [32] of the IAA’s reasons, the IAA did not accept that the applicant was involved in any political activities in Iran and did not accept that the Applicant came to the adverse attention of Iranian authorities for those reasons or because he was Kurdish and/or his relatives used to be members of the Komala party;
ii. The Applicant’s claims were that he feared harm as a Kurdish man from a Sunni Muslim family who lived in Kermanshah province and who had been imputed to have anti-government political views and been accused of being a member of the Komala party and who had refused to provide assistance and information to Iranian intelligence authorities;
iii. The IAA’s conclusions were based on a finding that the Applicant was not involved in any political activities, but it failed to engage with the question raised by the preceding paragraph.
(d) … [Not relied upon]
Grounds for Review
As to the first Ground (1(a)) of the Amended Application for Review, it was asserted that the Authority had acted unreasonably in the exercise of its discretion, or alternatively had failed to exercise jurisdiction, by failing to exercise, or failing to consider whether to exercise, its discretion under s. 473DC of the Migration Act 1958 (Cth) (“the Act”) to get new information from the applicant or his representative concerning whether there was any inconsistency between the applicant’s claims about the conduct of the Iranian intelligence services, and his original claim that the intelligence unit was located at Rawansar (Rowansar) as the applicant was recorded as having said in answer to Q 32 as set out in the arrival interview record. [4]
[4] CB p. 9.
Sections 473DC and 473DD of the Act relevantly provided as follows:
“Section 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 – 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.”
When considering the principles applicable for the application of ss. 473DC and 473DD of the Act, the Court respectfully adopts what Thawley J said in DKF17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1963 at [11] – [13] as follows:
“[11] The operation of this provision has been considered in numerous cases, including: BVZ16 v Minister for Immigration and Border Protection (2017) 254 FCR 221 (White J); Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111 (Full Court); CHF16 v Minister for Immigration and Border Protection (2017) 257 FCR 148 (Full Court); DYS16 v Minister for Immigration and Border Protection (2018) 260 FCR 260; Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111; Minister for Immigration and Border Protection v CQW17 (2018) 264 FCR 249 (Full Court); AOV18 v Minister for Home Affairs [2018] FCA 1871 (Colvin J); DLB17 v Minster for Home Affairs [2018] FCAFC 230; Minister for Immigration and Border Protection v AUS17 [2019] FCA 1686 (Logan J); CVV16 v Minister for Home Affairs [2019] FCA 1890 (Mortimer J).
[12] The principles relevant for the purposes of the present appeal may be summarised in the following way:
(1) The requirements of s 473DD(a) and (b) are cumulative; that is paragraph (b) contains a requirement additional to that in paragraph (a), applicable only where it is the referred applicant who gives or proposes to give new information to the Authority: Plaintiff M174 at [31] (Gageler, Keane and Nettle JJ); [88] (Gordon J). Where it is the referred applicant who gives or proposes to give new information to the Authority, the Authority is prohibited from considering new information unless it is satisfied of the matters in both paragraph (a) and subparagraph (b)(i) or (ii): CQW17 at [36]; AQU17 at [13].
(2) The phrase “exceptional circumstances” is not defined. What will amount to “exceptional circumstances” is inherently incapable of exhaustive statement and must depend on the particular circumstances of the visa applicant’s case: Plaintiff M174 at [30]; AQU17 at [14]. There may be a combination of factors which constitute “exceptional circumstances” when viewed together, or one factor of itself may be sufficient for “exceptional circumstances” to exist: AQU17 at [13].
(3) The word “exceptional” is not a term of art and is to be given its ordinary meaning; circumstances are “exceptional” if they may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon; to 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: Plaintiff 174 at [30]; AQU17 at [13].
(4) The matters which the Authority may consider in reaching a state of satisfaction about “exceptional circumstances” to justify considering the new information are unconfined except by statutory context. They would often, perhaps usually, include matters relevant to the Authority’s satisfaction that the new information:
(a) could not have been provided to the Minister at the time of the s 65 decision (subparagraph (b)(i)); or
(b) is credible personal information which had not previously been known (subparagraph (b)(ii)): CQW17 at [48]-[49], citing BVZ16 at [9] and BBS16 at [102]-[103].
(5) Depending on the particular facts, a failure by the Authority to turn its mind to matters which are relevant to subparagraphs (b)(i) and (b)(ii) in determining whether it is satisfied that there are “exceptional circumstances” for the purposes of paragraph (a) may reveal jurisdictional error. However, that is not because those considerations are mandatory relevant considerations: AUS17 at [23]. It is a misconception that matters relevant to (b)(i) and (ii) must, in all cases, be considered by the Authority in deciding whether “exceptional circumstances” exist under s 473DD(a): AQU17 at [14]; CVV16 at [24]. The circumstances which might indicate that matters relevant to ss 473DD(b)(i) and (b)(ii) should have been considered in reaching the state of satisfaction in (a) include the nature and cogency of the material and the place of the material in the assessment of the claims: CQW17 at [52], referring to VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 at [77]; Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [112]; see also: CVV16 at [26].
[13] The key underlying question is whether the Authority exercised its statutory function and did so lawfully. A failure to consider, when reaching the state of satisfaction under s 473DD(a), a matter which is also relevant to ss 473DD(b)(i) or (b)(ii) might demonstrate a misconception on the part of the Authority as to the meaning of “exceptional circumstances” or it might demonstrate a failure properly to exercise the jurisdiction under paragraph (a). That is because, in the particular circumstances of the case, the failure to consider that particular matter indicates a failure properly to exercise the jurisdiction under paragraph (a) or a misconception of the nature of the jurisdiction. It is not because of any failure to consider (b)(i) or (b)(ii) per se.”
Recently, The Full Court of the Federal Court discussed the circumstances in which an Authority might exercise its power to get new information in the context of the legislative scheme in Part 7AA of the Act. In Minister for Immigration, Citizenship, Migrant Services and Multicultural Affair v BTW17 [2020] FCAFC 159 at [64] – [76], Mortimer and Jackson JJ said:
“[64] In Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 264 CLR 217 at [22], the plurality described the “primary rule” applicable to the Authority’s review under Pt 7AA:
Within Div 3, s 473DB sets out the primary requirement that, subject to the Part, the Authority is to review a fast track reviewable decision referred to it under s 473CA by considering the review material provided to the Authority under s 473CB without accepting or requesting new information and without interviewing the referred applicant. To that primary rule, subdiv C of Div 3 admits of exceptions. The principal provisions of subdiv C providing for those exceptions are contained in ss 473DC, 473DD and 473DE.
[65] At [27], noting that it was possible for the Secretary, in the review material given to the Authority, to provide information that was not before the delegate, the plurality said:
Information contained in review material given to the Authority by the Secretary that was not before the Minister or delegate at the time of making the decision to refuse to grant the protection visa will become new information if and when the Authority considers that the information may be relevant. The Authority will not need to invoke s 473DC in order to receive that new information. However, given that the Authority’s obligation under s 473DB(1) to conduct its review by considering the review material is subject to Pt 7AA, the Authority will need to comply with s 473DD, and where applicable s 473DE, if the Authority is to take that new information into consideration.
(Emphasis added.)
[66] In that context, the plurality then described s 473DD as imposing “restrictions on when the Authority can consider new information”: at [28]. That position, as the Minister correctly submitted on the appeal, reflects a policy decision articulated in the extrinsic material which introduced Pt 7AA to limit the circumstances in which the Authority can consider new information: see Explanatory Memorandum to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 at [909].
[67] Having explained at [29] that the “exceptional circumstances” “precondition set out in s 473DD(a) must always be met”, the plurality then said of s 473DD(b) (at [34]):
Accordingly, all that the Authority needs to be satisfied of in order to meet the precondition to its consideration of new information given, or proposed to be given, by the referred applicant set out in s 473DD(b)(ii) is that: (1) the information is credible information about an identified individual, or an individual who is reasonably identifiable; (2) the information was not previously known by either the Minister or the referred applicant; and (3) had the information been known by either the Minister or the referred applicant, the information may have affected the consideration of the referred applicant’s claims.
(Emphasis added.)
[68] Two matters should be noted about this passage, and the proper approach described by the plurality. First, what is contained in s 473DD is described as a “precondition”. That is, although it is part of the review function of the Authority, the exercise of power under s 473DD comes before the Authority can “consider new information that is given to it” by a referred applicant. It is thus part of the Authority’s preliminary decision-making about what is the complete scope of the material it will be considering on its review for the purpose of its statutory task, which is, as the plurality in Plaintiff M174 outlined at [17],
to consider the application for a protection visa afresh and to determine for itself whether or not it is satisfied that the criteria for the grant of the visa have been met.
[69] As the plurality observed at [32], the precondition in s 473DD(b)(i) needs “[n]o explication”. It is a matter of objective fact, and straightforward. It would be curious if the precondition in s 473DD(b)(ii) were not also treated as involving a relatively straightforward assessment, being, as we have explained, a preliminary step the Authority must take before settling on the scope of the material which is to be before it on its review, so that it can consider afresh the protection visa application, and make its own decision.
[70] Thus, the parameters for the Authority’s review task are set by the “primary rule” in s 473DB, read with the additional powers conferred on it by ss 473DC, 473DD and 473DE. The purpose of each of those additional powers is the same: it is to regulate the circumstances in which the Authority can depart from the “primary rule” in s 473DB. In each case, in deciding whether or not to exercise those powers, the Authority is doing so for the purposes of deciding what should be the scope of the material available to it for its review task.
[71] The precondition in s 473DD(b)(ii) is but one aspect of these powers, and the approach taken to its construction should reflect its purpose as we have described it. In substance, it is no different to the Authority deciding whether to invite a person to an interview under s 473DC(3)(b): in both cases, the Authority is deciding what material should be before it on its review.
[72] Just as when a Tribunal decides whether to receive evidence or information, the exercise of these powers can and should occur in the context of the review material already before the Authority, and on which according to the primary rule it should conduct its review. Whether to invite a person to an interview, whether to “get” new information of its own motion, or whether to accept “new information” proffered to it by a visa applicant – in all these circumstances the Authority is entitled to reflect on and assess the review material already before it – but for the purpose of deciding whether to depart from the primary rule and, importantly, bearing in mind its function of considering the protection visa application afresh and for itself. Assessing the proposed new material (or interview) in this context will assist the Authority in assessing relevance, in assessing how critical the additional information is to its review, and in assessing whether the preconditions laid out by Parliament can be established. To take an obvious example from the suite of provisions – in order to decide if new information could have been put before the delegate, the Authority is likely to have to consider what was put before the delegate.
[73] However, there comes a point at which such an assessment will go too far, and in reality will equate to, or become indistinguishable from, the Authority’s reasoning on its own – fresh – consideration of the protection visa application. That would not be the correct approach, because that is not the purpose for which the power is conferred.
[74] As procedural powers designed to permit the Authority in specified and limited circumstances to depart from the primary rule in s 473DB and to have available to itself more material than the delegate did, the Authority is confined to a consideration which is compatible and consistent with this purpose.
[75] That is why, in our opinion, Parliament has used the word “credible” in s 473DD(b)(ii) to describe the character of the information a visa applicant seeks to put forward. As Bromberg J said, “credible” means capable of being believed: it is the decision whether the information has that character, as well as the character of being “personal” to the visa applicant, which is to be made at this procedural stage, for the purpose of deciding what the scope of the review material should be, and whether there should be a departure from the primary rule.
[76] Particularly in a scheme premised on a review “on the papers”, there is a real difficulty with the Authority undertaking some kind of substantively evaluative process at this point, and weighing the new information, the visa applicant’s explanation of why it should be considered, and the existing review material together, and then reaching some relatively definitive findings about the credibility of the visa applicant (which would occur in deciding if the new information were “true”). That difficulty is that the Authority is, in substance, taking into account material that is not before it on the review in determining the credibility of the visa applicant. That is neither what the legislative scheme of Pt 7AA contemplates nor what it permits. Fresh decisions on the review must be based on the review material before the Authority: they cannot be based on extraneous material, which is what “new information” is, until it is admitted. That, in our opinion, is an important reason why the approach identified by Bromberg J in CSR16 is correct.”
It was claimed on behalf of the applicant that the Authority ought to have obtained “information from the applicant in order to ascertain whether there was, in truth, any inconsistency between the applicant’s claims”. There is no merit to such claim.
In DPI17 v Minister for Home Affairs & Anor (2019) 269 FCR 134 at [34] – [43], Griffiths and Steward JJ set out the relevant principles governing the manner in which the Authority ought to approach the question as to whether or not it ought to obtain new information or not. The learned Judges said as follows:
“[34] As is evident from the summaries of the parties’ outlines of submissions above, there was substantial agreement as to the relevant principles. That is perhaps unsurprising having regard to the High Court’s decision in M174 and several recent decisions of this Court, which have established some general principles.
[35] The plurality’s judgment in M174 (Gageler, Keane and Nettle JJ) establishes the following propositions:
(1) as stated in the simplified outline of Pt 7AA in s 473BA of the Act, Pt 7AA provides “a limited form of review” of a “fast track decision” which is constituted by a refusal to grant a protection visa to an applicant who is statutorily designated to be a “fast track applicant” (at [1]);
(2) the task of the IAA in conducting a review of a fast track reviewable decision is not to correct error on the part of the Minister or a delegate, but rather the IAA “is engaged in a de novo consideration of the merits of the decision that has been referred to it.” The IAA must consider the application afresh and determine for itself whether the criteria for the grant of the visa have been satisfied (at [17]);
(3) the various powers conferred upon the IAA by Div 3 of Pt 7AA (including s 473DC) are conferred on the implied condition that they are to be exercised within the bounds of reasonableness, as explained in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 (Li) (at [21]);
(4) the term “new information” must be read consistently when used in ss 473DC, 473DD and 473DE “as limited to ‘information’ (which may or may not be recorded in a document), in the ordinary sense of a communication of knowledge about some particular fact, subject or event, that meets the two conditions set out in s 473DC(1)(a) and (b).” These two conditions are that the information was not before the Minister or delegate when the protection visa decision was made, and the IAA considers the information to be relevant (at [24]);
(5) although there is no general requirement for the IAA to give to the applicant material provided to the IAA by the Secretary (s 473DA(2)), there is nothing in Pt 7AA to preclude the IAA from giving the whole or some part of that material to the applicant in the context of exercising the power under s 473DC(3) to invite the giving of new information and s 473DA(2) does not address what may be required of the IAA in particular circumstances in order to exercise that power reasonably ([26]); and
(6) s 473DE is concerned to ensure that the referred applicant has an opportunity to address new information that has been, or is to be considered by, the IAA under s 473DD and that would be the reason, or a part of the reason, for affirming the fast track reviewable decision (at [35]).
[36] Both Gordon and Edelman JJ, who delivered separate reasons for judgment in M174, agreed that the power conferred by s 473DC was subject to the principles in Li concerning legal unreasonableness (see at [86] and [97] respectively). To similar effect, see CRY16 at [82] and [83].
[37] Other relevant principles which guide the application of the ground of review for legal unreasonableness are summarised in Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 353 ALR 408 (SZVFW) and Minister for Immigration and Border Protection v Haq [2019] FCAFC 7 (Haq) at [31]-[37] per Griffiths J (with whom Gleeson J agreed). Three points deserve particular emphasis. First, legal unreasonableness is “invariably fact dependent and requires evaluation of the evidence” (see Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 (Singh) at [47] per Allsop CJ, Robertson and Mortimer JJ and see also SZVFW at [84] per Nettle and Gordon JJ). Secondly, the correct approach is to apply the relevant general principles to the particular factual circumstances of the case and not to engage in an analysis which merely involves identifying particular factual similarities or differences between individual cases (Singh at [48] and Haq at [32]). It may well be that, for this reason, the appellant made clear that, on the appeal, he did not rely on DFW16. As Thawley J pointed out in CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 (CCQ17) at [42], there are no fixed categories of circumstances in which it would be legally unreasonable to fail to consider the discretion in s 473DC. Thirdly, having regard to the clear terms of s 473DA (which provides that Div 3 of Pt 7AA and ss 473GA and 473GB are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to IAA reviews), the starting point for analysis in a case such as this which raises the ground of legal unreasonableness is not through a “natural justice lens” (DGZ16 at [69] and [72] per Reeves, Robertson and Rangiah JJ). Fourthly, as Thawley J correctly stated in CCQ17, merely because there has been a failure to consider the exercise of the power in s 473DC does not of itself involve error, let alone a jurisdictional error.
[38] In CCQ17 at [51], Thawley J helpfully identified the following three essential steps in determining whether an established failure to consider exercising a discretionary power was legally unreasonable:
(1) identify the failure with precision;
(2) examine the terms, scope and purpose of the statutory power which the decision-maker failed to consider; and
(3) evaluate the failure to see whether it has the character of being legally unreasonable, perhaps in lacking a rational foundation or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking in common sense.
[39] Each of those three steps is important but it is the third of those steps which highlights the fact that a mere failure to consider the exercise of the power under s 473DC is insufficient per se to give rise to jurisdictional error.
[40] It is appropriate to say something more about DGZ16 and the Minister’s strong reliance upon it. In particular, the Minister pointed to what the Full Court said in DGZ16 at [72] (which is set out in [32] above). That passage should be read in the context of the particular facts and circumstances of that case. As the Full Court had earlier emphasised at [70], that was not a case where the IAA had decided a point which was not the point decided by the delegate. Instead, as is made clear at [74], the Full Court was responding there to a contention made by the appellant there that, merely because the IAA had before it the appellant’s submissions and had accepted the new information in those submissions, the IAA was obliged, whether as a matter of legal reasonableness or otherwise, to invite the appellant to respond once the IAA formed specific reservations about the appellant’s case. It was in this context, and with particular reference to the circumstances of that case, that the Full Court stated at [76] that it was open to the IAA to disagree with the delegate’s evaluation of the material without providing the appellant with an opportunity to respond.
[41] These statements by the Full Court should not be viewed as establishing a general principle that the IAA is never obliged to provide the appellant with an opportunity to respond if the IAA disagrees with the delegate’s evaluation of material.
[42] It is significant that the Full Court in DGZ16 viewed the case there as being different from that in CRY16 (where the IAA affirmed the delegate’s decision to refuse the SHEV but on a different basis of reallocation which had not been addressed by the delegate). In DGZ16, their Honours expressly stated at [70] that in DGZ16 that “there may be circumstances in which it is legally unreasonable not to consider the exercise of the discretionary power in s 473DC(3)”. This statement serves to underline the central importance of paying close attention to the particular facts and circumstances in which the issue of legal unreasonableness is raised.
[43] Before turning to the particular facts and circumstances here, it is relevant to make some further observations. In performing its overarching duty to review a referred decision, the IAA is exhorted “to pursue the objective of providing a mechanism of limited review that is efficient quick, free of bias and consistent with Division 3 (conduct of review)” (see s 473BA of the Act). Performance of that duty is conditioned upon the IAA observing the obligations imposed upon it by Pt 7AA and by considering, in appropriate cases, whether or not to exercise the discretions which are conferred upon it. As the plurality noted in SZMTA at [9], with reference to the scheme of review under Pt 7 of the Act, some conditions “are implicit in the statutory scheme and some of which are implied through the operation of common law principles of interpretation”. Although those observations were directed to the review regime under Pt 7, we consider that they apply equally to the review regime under Pt 7AA. One of the implied conditions, which arises from the operation of common law principles of statutory construction, is the condition that consideration of the exercise of the statutory discretionary power of the IAA under s 473DC is subject to the test of legal reasonableness.”
It is for the Authority to determine whether it ought to get any new information based upon the facts before it. In the present case, the Authority, at [2] and [3] of its reasons, recorded that it had had regard to the material provided to it by the Secretary of the Department pursuant to the provisions of s. 473CB of the Act, and further, that it had received a new statement from the applicant on 19 February 2020 which referred to claims already raised before the delegate, and which argued against the delegate’s findings.
At [9] – [17] inclusive, the Authority addressed a number of discrepancies in the applicant’s claims, leading it to conclude that because the applicant had had an opportunity to appropriately present his claims for protection at the SHEV interview/protection visa interview without impediment, it was not prepared to exercise its discretion to get new information pursuant to s. 473 DC of the Act. It did so having had the benefit of assessing the applicant’s evidence at the time of the protection interview, as well as all of the other facts and material before it. At [14] of its reasons, noted that the applicant had said, at the time of the protection interview, that he had made full disclosure of all of his claims to the Authority. The authority said as follows:
“[14] … At the end of the interview the delegate also told him that she would consider any further information he provided prior to a decision being made and the applicant said that he had done his best to tell the truth and had given everything to the delegate. I also note that it was nearly two months between the protection visa interview and the delegate's decision which was ample opportunity for the applicant to provide any further information to the delegate, which he did not. I also note that the applicant wrote an email to the Department after receiving the delegate's decision where he noted, among other things, that he had been honest and said the whole truth.”
At [19] – [34] of its reasons, the Authority recorded that it had considered in detail the applicant’s claims about his past political and protest involvement, as well as the applicant’s claims that he had been asked by the “Amarkin Office” to work for them so as to gather intelligence about opponents of the government. Though the Authority accepted that the applicant had political views contrary to those of the Iranian regime in power, it did not accept that the applicant had been involved in any political activities in Iran. It was entitled to make that finding.
Having addressed the refugee assessment criteria and well-founded fear of persecution criteria at [5] and [6] of its reasons, the Authority concluded that the applicant would not face a real chance of suffering harm in Iran if returned there, either because his relatives were former members of the Komala Party, or because of any of the applicant’s political opinions. The Authority’s careful analysis on that issue in its reasons was as follows:
“[19] The applicant claims that he will be persecuted in Iran by the Iranian authorities because of his political opinion against the government of Iran.
[20] In his statement of claims attached to his application for protection (statement of claims), the applicant claimed that after completing his military service he worked in retail and opened a few shops and participated in some protests against human rights violations in Iran and the authorities viewed this as acts against the Iranian government. He claimed there was a protest one night in 2009 and the police were coming after people and he was arrested along with four of his friends on the street. The authorities accused him of working for the Komala party as he is of Kurdish ethnicity. During the protection visa interview he also claimed to have had two relatives who used to work for this party and the authorities also used this link to accuse him of being a member of this party. He had to go to court and sign a good behaviour agreement and was told that if he was caught again he will face a lot of problems. The agreement stated that he could not participate in any political party or any protests against the government. He was not charged with any offence. Following this, the Iranian intelligence kept asking him to provide them with names and information about people who are in anti-Iranian government groups. The "Amarkin" is in Rawansar where the intelligence unit works and they asked him to work for them by writing reports on who was working for political groups. Every week they approached him and he continued to refuse to work for them. They kept harassing him to work for them as a spy but he kept refusing. Every week they would come to his cafe and harass him and eventually closed they his cafe and did not give him a licence to reopen the cafe. He believes they did this because he refused to work for them. In the same statement the applicant also claimed that he was a member of an informal local group that discussed social problems and organised a few protests and he also participated in protests which promoted human rights issues and civil rights. The applicant also claimed that if he were to return to Iran he would want to continue participating in protests but he would be persecuted and would not be able to express his political views.
[21] I note the applicant raised similar claims during his Irregular Maritime Arrival and Induction Interview (Entry Interview) shortly after he arrived in Australia in June 2013. Nonetheless, I found his statement of claims very general and, when discussing the above claims, during his protection visa interview I also found the applicant's evidence very vague and lacking in detail. He has also not provided any supporting evidence in relation to his claims.
[22] For example, when asked by the delegate for further detail about the political group he claimed he belonged to, he said they lived in a small town and most of them knew each other and participated in demonstrations. He first said there were about 40 to 50 people who attended but then later stated 1t was a small group of 10 to 15 people. When the delegate asked him what the aims of the group were he said they were involved in political and religious discussions and would raise awareness among the young. When asked by the delegate how they raised awareness he said they were enlightening them about their rights and explaining how the authorities were committing cruelty. When questioned by the delegate about the protests he said they had a group through social media trying to "organise something" but when asked by the delegate if when he attended these protests he said he did not have the courage to but would just pass on the message to other people like a media campaign.
[23] Furthermore, during the protection visa interview the applicant claimed that, after he was released from detention he had to go to the Etalaat office every week to sign in and would do that at the police station which he stated was "in the corner of the city". When asked again by the delegate where that police station was, he said it is not the city and does not even know the name of the street. His evasive response to these questions is of concern given he claims he attended this office weekly to sign in.
[24] In his statement to the IAA, the applicant now claims that he did not say that he had to sign every week with the Etalaat but rather said that he had to attend the intelligence office weekly for around a month and the frequency lessoned. He believes this was not interpreted by the interpreter who had told him at the beginning of the interview that he was sleepy. The applicant also claims the interpreter's English was not good. The applicant also claims that he did not say the intelligence office was in the corner of the city but rather was 2km outside the city on Kermanshah road and believes the interpreter was to blame again.
[25] I am not convinced that the interpreter was to blame. I note that the applicant speaks English relatively well and was able to communicate with the delegate in English at times and even now claims he was able to notice that the interpreter's English was not good. He claims that, because the interpreter was Kurdish he did not tell the delegate about his concerns with the interpreter as he did not want to be disrespectful to him in the interview. However I note that he also did not raise any concerns privately with the delegate after the interview and in the nearly two months between the interview and the delegate's decision. He has also not provided any supporting evidence that these claims were interpreted incorrectly by the interpreter at the interview.
[26] Furthermore, I have also given weight to the fact that the applicant did not claim to have to report weekly to the Etalaat office in his statement of claims but merely said they would approach him weekly asking him to work for them and would come to his cafe to harass him.
[27] During the protection visa interview the applicant claimed that two of his relatives had been previously involved with the Komala party when they were quite young but now they were not doing anything and had quit. He claimed that the authorities were also trying to link him to this party because of his relatives' previous involvement. I note that during his Entry Interview he also stated two of his cousins belonged to the Komala party. I consider his claim about his relative's past activities with this party to be plausible. However, I have given weight to the fact that he also did not refer to his claim that he had been accused of being a member of the Kamala party because of his relatives' previous membership in his statement of claims and only raised this during the protection visa interview after the delegate asked him if any of his family had links to Kurdish political groups and I find the evolution of this claim also to be of concern.
[28] In his statement of claims the applicant said that it was the "Amarkln" office that used to ask him to work for them and provide them with information on political groups and because he refused they would harass him at his cafe and eventually they closed it and did not give him a licence to re-open it. Country information before me indicates that there is a unit within the Law Enforcement Forces in Iran called the "Edareyeh Amaken Omumi" (Public Establishments Office), which is concerned with the type of music people listen to, the interaction of people of the opposite sex in public places and various forms of perceived lewd behaviour but does not indicate that it is involved in intelligence gathering in relation to anti-regime activity.
[29] During the protection visa interview the applicant said that he has been using social media such as Facebook and Telegram to express his political opinion against the Iranian authorities but did not provide any supporting evidence of this. When asked by the delegate if he was a member of any political group in Australia he said "we are powerless here we cannot do much here'' which I found unconvincing. When asked if he had been associated with any Kurdish groups since coming to Australia he said that he had so many financial problems and then said that prior to experiencing homelessness he had been a member of Kurdish groups in Australia only on social media but again did not provide any supporting evidence or detail of this. When asked by the delegate if he had attended any protests or demonstrations in Australia he merely referred to one protest he attended at TAFE in relation to the proposed privatisation of that institution in 2018. He did not refer to attending any protests in respect of opposition to the Iranian regime and claimed he did not have the time to search for any despite living in Australia for over six years.
[30] The applicant also claimed his Facebook is under a fake name as is his email. This is because he fears that the authorities will find his profile and discover who he is and to protect his family. However during the protection visa interview he said that he is known as "George Allen" on Facebook which is his nickname. When the delegate asked why he was called that, he said his name is Muslim and he does not believe in that religion so he preferred to change his name and this name was easier and did not refer to having a pseudonym on social media due to fear of the Iranian authorities.
[31] I am not satisfied the concerns I have noted above can be attributed to the applicant's stressed state over his personal circumstances at the time of the protection visa interview. Despite claiming he was not ready for the protection visa interview, he has not provided any further credible detail or evidence to the IAA in relation to his protection claims.
[32] On the evidence before me I accept that the applicant has political views against the Iranian regime but I do not accept that he was involved in any political activities in Iran. I also do not accept that he came to the adverse attention of the Iranian authorities for these activities or because he is Kurdish and/or his relatives used to be members of the Komala party. I do not accept that he had his business shut down and cafe licence not renewed by the Iranian authorities for any of these reasons. l also do not accept that the applicant has been involved in any political activities, online or otherwise, against the Iranian regime whilst living in Australia.
[33] As I have not accepted that he was ever of adverse interest to the Iranian authorities because his relatives were former members of the Komala party, I am not satisfied he will face a real chance of harm in Iran from the Iranian authorities or any other group or person for this reason.
[34] Although I have accepted that he has a political opinion against the Iranian government, on the basis of my findings above, I am not satisfied there is a real chance he will express those views publicly if he were to return to Iran and I am not satisfied this is due to a fear of persecution but rather a lack of Interest. I am not satisfied the applicant will face a real chance of harm in Iran from the Iranian authorities or any other group or person because of his political opinion.”
On the question as to whether the applicant had ever participated in any anti-government protest, the Authority was entitled to form a different view to that of a delegate, namely that the applicant had not so participated. It was also entitled to make adverse findings concerning the applicant’s credibility, without inviting the applicant to give new information about any factual matter which touched upon the question of credibility. [5] So too was the Authority entitled to disagree with a delegate’s evaluation of the material before it without providing to the applicant an opportunity to respond. [6] To do otherwise would be inconsistent with it being a fast-track review process under Part 7AA of the Act.
[5] See BLS17 v Minister for Immigration and Border Protection [2019] FCA 1079 at [34] per
O’Bryan J.
[6] DGZ16 v Minister for Immigration and Border Protection & Anor (2018) 258 FCR 551 at [76]
per Reeves, Robertson and Rangiah JJ.
It is clear that the Authority did consider whether it ought to exercise its discretion to get new information or not. That the Authority did not specifically find that there were no exceptional circumstances justifying consideration of any new information was of no moment. The Authority was not obliged to set out each and every step of its decision making process in that regard, particularly in circumstances where it had devoted eight (8) paragraphs of its reasons setting out how the applicant had said that he had already provided all relevant information to the Department. There were sound reasons for the Authority declining to exercise the discretion.
Further, the Authority, at [28] of its reasons, recorded that it had had regard to country information about an intelligence gathering unit within Iran’s law enforcement forces. It cannot be said that the Authority did not intellectually engage in a consideration as to whether or not the applicant’s claims about pressure being applied to him by members of the Amarkin Office were true or not. As such, the characterisation by the applicant of the Authority considering that there was an inconsistency in the applicant’s claims warranting the getting of new information from the applicant was of no significance.
The Authority made a finding based upon its considered assessment of, and a weighing up of, the facts before it. Its findings were not arbitrary, capricious, without common sense, plainly unjust or extremely illogical. In DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175 at [30], Kenny, Kerr and Perry JJ summarised the principles relating to legal unreasonableness as follows:
“[30] The relevant principles can be summarised as follows.
(1) While findings as to credit are generally matters for the administrative decision-maker, this does not mean that such findings as to credit are beyond scrutiny on judicial review: CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 (CQG15) at [37]-[38] (the Court). The question of whether a credibility finding is tainted by jurisdictional error is a case specific inquiry, and is not assessed by reference to fixed categories or formulae (ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109 (ARG15) at [83](b)). In each case it is necessary to analyse in detail what the decision-maker has decided: Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 (SZRKT) at [77] (Robertson J).
(2) Without derogating from the case specific nature of the inquiry, adverse credibility findings may involve jurisdictional error on recognised grounds such as legal unreasonableness or reaching a finding without a logical, rational or probative basis (ARG15 at [83](d)). In this regard, Crennan and Bell JJ explained in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (SZMDS) that:
135. … A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
(Emphasis added)
(3) By way of example, in SZRKT at [78], Robertson J considered that jurisdictional error may be established where a finding on credit on an objectively minor matter of fact constitutes the basis on which the decision-maker rejects the entirety of an applicant’s evidence and claims. Furthermore, as Flick J explained in SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451 (SZVAP) at [22] (in a passage on which the appellant particularly relied), “[u]nwarranted assumptions by a Tribunal as to matters relevant to the formation of a view on the credibility of a corroborative witness may cause the Tribunal to disbelieve and disregard that evidence and may constitute a failure duly to consider the question raised by the material put before it: WAGO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 676 at [54].” Equally jurisdictional error may be established by “a process of reasoning which damns a man’s credibility by reference, materially, to a false factual premise concerning a critical document”: SZLGP v Minister for Immigration and Citizenship (2009) 181 FCR 113 at [37].
(4) Findings or reasoning along the way to reaching a conclusion by the decision-maker that are illogical or irrational may establish jurisdictional error (SZMDS at [132] (Crennan and Bell JJ)). In this regard, with respect to the significance of an illogical or irrational finding as to credit to the administrative decision necessary to establish jurisdictional error, Wigney J explained in Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210 (in a passage approved in CQG15 at [60]) that:
56 An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny …
(Citations omitted)
(5) A high degree of caution must, however, be exercised before finding that adverse findings as to credit expose jurisdictional error in order to ensure that the Court does not embark impermissibly upon merits review: SZMDS at [96]; SZVAP at [14]-[15]. As such, to establish jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality must be demonstrated “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions” (SZRKT at [148]; see also SZMDS at [135] and CQG15 at [60]). Thus, “[e]ven emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality”: CQG15 at [61].”
Thirdly, even if the Authority erred in failing to get new information on point from the applicant, any such error was not a material error so as to constitute jurisdictional error. The Authority was entitled to rely upon country information before it for the purpose of its analysis of the applicant’s claims and the factual matrix before it. It ought to be noted that it was the applicant who, in his entry interview, first referred to the Amarkin Office in the context of it being part of the Iranian intelligence services. There could have been no confusion about what the applicant meant, so as to give rise to the Authority considering that it ought to get new information about the applicant’s claims from him. This Ground is without merit.
As to the second Ground (1(b)) of the Amended Application for Review, it was claimed that the Authority failed to give proper attention to all relevant material when making its findings. There is no merit to such claim.
The applicant relied upon the decision of the Full Court of the Federal Court of Australia in AVQ15 v Minister for Immigration and Border Protection (2018) 266 FCR 83 at [26] – [28], where Kenny, Griffiths and Mortimer JJ said:
[26] Consistently with its task on review, and bearing the reality to which the Full Court in W375/01A referred steadily in mind, appropriate attention has to be given by a decision-maker (here, the Tribunal) to all relevant material in making a finding of inconsistency which then underpins an adverse credibility assessment. As will shortly emerge, this did not occur here because the Tribunal overlooked what the appellant had earlier told a Departmental officer at the appellant’s interview and this material was highly relevant to the question whether the appellant had given inconsistent evidence in support of his case.
[27] Secondly, the term “inconsistency” should be used with appropriate caution and an appreciation of the danger of using labels or formulae which mask the need for deeper analysis. As we have noted above, adverse credibility findings might be based on a variety of matters, including inconsistencies between, for example, evidence or claims made at different stages of the decision-making process or differences between oral evidence and contemporaneous documents. In some circumstances a visa applicant may raise a claim for the first time at an advanced stage of the decision-making process and the failure to raise the claim previously may well be relevant to credibility, but that is not to say that this is correctly described as an inconsistency.
[28] Thirdly, even where it is reasonably open to find that a person has given inconsistent evidence, the decision-maker needs to assess the significance of that inconsistency and the weight to be given to it. This requires consideration of, for example, the significance of the inconsistency having regard to the person’s case as a whole and whether the inconsistency is on a matter which is central to the person’s case or is at its periphery and involves an objectively minor matter of fact. It also requires the decision maker to remain conscious of the particular challenges facing asylum seekers in giving accounts of why they fear persecution, including that they may have to give multiple accounts, using interpreters, and that they may reasonably expect an interview or a review process will provide an opportunity for them to elaborate on, or explain, the narratives they have previously given. Consideration should also be given to whether there is an acceptable explanation for the person having given inconsistent evidence such that the fact of the inconsistency should attract little, if any, weight. How all these matters are weighed and evaluated in a particular case is a matter for the decision-maker, but a failure by the decision-maker to appreciate the particular nature of the task, or to perform it reasonably and fairly, may be the subject of judicial review.”
In AVQ15, the Court held that the Administrative Appeals Tribunal had overlooked important material which impacted upon its finding that an applicant had given inconsistent evidence. In this matter, the Authority closely considered all of the evidence before it when arriving at its decision. It did not make any specific finding of inconsistency when arriving at its adverse credibility finding. Rather, the Authority relied upon the applicant’s vague evidence and discrepancies in the applicant’s claims in the factual context in which those claims were made. It did so in a considered and logical manner.
The Authority had regard to the applicant’s claims that he had participated in some protests against human rights violations in Iran which he claimed were viewed by the authorities as acts against the Iranian government, but rejected them. [7] On the question of whether the applicant had been a member of the Komala party or not, the Authority found that the applicant had not been involved in any political activities in Iran. The applicant has invited the Court to conduct an impermissible merits review as to factual findings of the Authority which were open to it on the evidence before it.
[7] CB p. 68 – SHEV statement at [23] – [25] and Reasons of Authority at [20].
Further, the applicant has not particularised what was claimed to be the “relevant material” to which the Authority had failed to give appropriate attention. The reasons of the Authority clearly indicate that it had had regard to the applicant’s entry interview, each of the statements provided on behalf of the applicant and the protection interview transcript. It considered such material in the context of the applicant’s claims. There is no merit to this Ground.
As to the third Ground (1(c)) of the Amended Application for Review, it was claimed that the Authority had failed to engage in an active intellectual consideration of a clearly articulated argument, namely that the applicant feared harm as a Kurdish man from a Sunni Muslim family who had lived in Kermanshah Province, and who not only had actual anti-government political views, but who also was imputed to have such views. There is no merit to such ground.
The Authority did consider the applicant’s claims about his being a Sunni Kurd. At [35] – [43] of its reasons, the Authority closely considered the applicant’s claims in the context of country information. At [38] – [42] of its reasons, the Authority found as follows:
“[38] I accept that the applicant comes from a majority Kurdish province near the Iran/Iraq border and that that the Iranian authorities monitor Kurds including those living in these areas.
[39] DFAT assesses that members of ethnic minority groups face a moderate risk of official and societal discrimination, particularly where they are in the minority in the geographic area in which they reside. This may take the form of denial of access to employment and housing, but is unlikely in most cases to include violence on the grounds of ethnicity alone. The risk to members of ethnic minority groups who are involved (or are perceived to be involved) in activism is higher. This is supported by other sources before me.
[40] Country information before me also indicates that religious minorities face a moderate risk of harassment on the grounds of their religious faith while undergoing military service. A 2015 article by lranWire also refers to discrimination against religious minorities during military service and noted many men do not speak up about the abuse and discrimination they experience during their service and the Iranian media does not report on this taboo subject.
[41] On the basis of the country information before me I accept, as plausible, the applicant's claims about alleged discrimination he faced as a Kurd during his military service.
[42] The country information above indicates that the risk of adverse treatment to members of ethnic minority groups who are involved (or are perceived to be involved) in activism is higher and I have not accepted that the applicant was involved in any political activities in Iran or will publicly express his political opinion if he were to return to Iran. Other than the discrimination he claimed he experienced during military service, he has not referred to any other credible incidents of discrimination or harm he experienced due to his Kurdish ethnicity and/or because he is from a Kurdish border area. I am not satisfied there is a real chance if he will be imputed with a political opinion against the Iranian government because of his Kurdish ethnicity and/or because he lives in a Kurdish border area.”
Having considered all of the material before it, it was open for the Authority to find that the applicant would not face a real chance of discrimination, or any other harm amounting to serious harm, should he be returned to Iran, from either the Iranian authorities, or from any other group or person based upon his Kurdish ethnicity or otherwise.
Secondly, it is clear that the Authority considered at length the applicant’s claims that the authorities had considered him to be a member of the Komala party. It specifically made reference to the Komala party at paragraphs [4] (dot point 4), [20], [27], [32] and [33] of its reasons. When referring to the Komala party in its reasons, the Authority did so in the context of the claims advanced on behalf of the applicant. It dealt with the applicant’s claims, in that regard, in a sequential and considered manner. It cannot be said that in doing so the Authority failed to have regard to a relevant consideration, or otherwise based its decision upon irrelevant considerations.
The Authority is only required to consider clearly articulated argument and claims which clearly emerged from the evidence. As was said by Collier, McKerracher and Banks-Smith JJ in AYY17 v Minister for Immigration and Border Protection & Anor (2018) 261 FCR 503 at [18]:
“[18] It is common ground that nothing in the statutory constraints to be found within Pt 7AA of the Migration Act (as discussed, for example, in BMB16 v Minister for Immigration and Border Protection (2017) 253 FCR 448 per Dowsett, Besanko and Charlesworth JJ) affects the relevant existing case law on this topic, namely, the duty to consider claims and issues arising from material before it as that law applies to the Administrative Appeals Tribunal under Pt 5 of the Migration Act. In that regard, we note that:
·The Tribunal review function requires it to consider all claims made by an applicant and its essential components or integers: Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 (Htun) per Allsop J (as the Chief Justice then was) (at [42]), with whom Spender J agreed.
·The Tribunal is only required to consider such claims where they are either:
(a) the subject of substantial clearly articulated argument, relying on established facts; or
(b) clearly emerge from the materials: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 (NABE) per Black CJ, French and Selway JJ (at [55] and [68]) and AWT15 v Minister for Immigration and Border Protection [2017] FCA 512 (AWT15) per Barker J (at [67]).
·These principles apply to the IAA regime: Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111 per Kenny, Tracey and Griffiths JJ (at [79]) where their Honours said:
… A body such as the IAA, which is conducting an inquisitorial review process in which there is a claim for protection under s 36(2)(a) of the [Migration] Act must not only consider and determine the case as articulated by the protection visa applicant, but also do so in relation to an unarticulated claim which is nevertheless raised clearly or squarely on the material before that review body (see NABE at [58]-[61] per Black CJ, French and Selway JJ).
(Emphasis added.)
·As to whether a claim clearly emerges, the following principles were collected in AWT15 by Barker J (at [67]-[68]):
(a) such a finding is not to be made lightly (NABE at [68]);
(b) the fact that a claim might be said to arise from materials is not enough (NABE at [68]);
(c) to clearly emerge from the materials, the claim must be based on “established facts” (SZUTM v Minister for Immigration and Border Protection (2016) 241 FCR 214 (SZUTM) per Markovic J (at [37]-[38])). In SZUTM, Markovic J said:
37 While the tribunal is not required to deal with claims which are not clearly set out and which do not clearly arise from the material before it, the tribunal is not limited to dealing with claims expressly articulated by an applicant. A claim not expressly advanced by an applicant will attract the review obligation of the tribunal when it is plain on the face of the material before it.
38 Both the appellant and the Minister have made submissions on whether there is a requirement that there be a claim based on “established facts”. At [35], the primary judge found, relying on NABE and Dranichnikov that, as the threshold point the claim must “emerge clearly from the materials before the Tribunal and should arise from established facts”. I agree with the primary judge’s approach: the decision in NABE must be read in light of the principle set out in Dranichnikov.
(d) while there is no precise standard to determining whether an unarticulated claim has been “squarely raised” or “clearly emerges” from the materials “a court will be more willing to draw the line in favour of an unrepresented party”: Kasupene v Minister for Immigration and Citizenship (2008) 49 AAR77 per Flick J (at [21]); and
(e) understanding whether a claim has clearly emerged from materials cannot be assessed in a vacuum. Consideration must be given to the way an applicant’s claims are presented over time.”
The Authority did not accept the applicant’s claim that by reason of his Kurdish background, or for any other reason, the applicant would have been imputed to have held anti-government political views. It turned its mind to that very question at [33] of its reasons. There is no merit to this Ground.
It cannot be said that no other rational or logical decision maker could not have made the same decision as the Authority. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130], [131] and [135]:
“[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
[131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
…
[135] On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”
Neither could the decision of the Authority be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:
“[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
…
[76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”
The applicant has failed to demonstrate jurisdictional error on the part of the Authority.
The Amended Application for Review filed on behalf of the applicant is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Egan
Associate:
Date: 16 December 2020
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