BJG21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 205
•2 November 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BJG21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 205
File number(s): CAG 20 of 2021 Judgment of: JUDGE HUMPHREYS Date of judgment: 2 November 2021 Catchwords: MIGRATION – Immigration Assessment Authority – whether the IAA’s decision was based on a finding that was unreasonable, illogical, irrational or otherwise not open on the evidence before the IAA – whether jurisdictional is made out – no jurisdictional error is made out – the application is dismissed Legislation: Migration Act 1958 (Cth) Cases cited: Minister for Immigration and Citizenship v SZMDS [2010] 240 CLR 611
VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117
Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Division: Division 2 General Federal Law Number of paragraphs: 44 Date of last submission/s: 22 October 2021 Date of hearing: 22 October 2021 Place: Parramatta Counsel for the Applicant: Mr Gao Solicitor for the Respondents: Duldig ORDERS
CAG 20 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BJG21
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE HUMPHREYS
DATE OF ORDER:
2 NOVEMBER 2021
THE COURT ORDERS THAT:
1.The Application is dismissed.
2.The Applicant to pay the First Respondent’s costs as agreed or assessed.
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 HUMPHREYS
The applicant is a citizen of Iran. The Applicant arrived in Australia on 17 May 2013 as an unauthorised maritime arrival.
On 12 September 2017, the applicant applied for a Safe Haven Enterprise (“SHEV”) (“Protection”) visa. On 1 June 2018, a delegate of the Minister for Immigration (“the delegate”) refused to grant the applicant a Protection visa. The applicant was referred to the Immigration Assessment Authority (“the Authority”) for merits review.
On 14 September 2018, the Authority affirmed the delegate’s decision. On 16 February 2021, this Court, differently constituted, quashed the Authority’s decision and remitted the matter back to the Authority for redetermination.
On 19 April 2012, the Authority, differently constituted, again affirmed the delegate’s decision not to grant the applicant a Protection visa. The applicant now seeks judicial review of the Authority’s second decision
THE IMMIGRATION ASSESSMENT AUTHORITY’S DECISION
The applicant’s claims, in so far as they relate to the ground of judicial review, relate to issues between the applicant and his claims of past persecution by the Iranian Basij (“Basij”), which is part of the Iranian Police and security apparatus.
These include encounters with the Basij where the applicant was assaulted, being pressured to hire people who he feared would spy on his Arab customers and an assault on the applicant’s cousin, which resulted, it is claimed, in the cousin’s death.
The applicant further claims that he was arrested in 2009 for taking part in a demonstration in relation to a moderate reformist presidential candidate. The applicant claims that he was fined 500,000 rials, and imprisoned for three nights and received 30 lashes.
In 2013, the applicant claims that while riding a motor cycle, he was stopped by the Basij. The applicant claims he was assaulted and during the course of a struggle that ensured, a member of the Basij was injured. The applicant’s parents subsequently received a summons requiring the applicant to attend a criminal Court and answer allegations of intentional assault and battery. The applicant fled the country fearing that he would not get a fair hearing.
The applicant claims that after his departure, his parents received 3 further summons over the incident. As well, the Basij also injured the applicant’s sister during a raid on his house, and chased his brother who has a physical resemblance to him. Another brother was, more recently, stopped by the Basij and imprisoned because of some documents he was carrying.
The applicant’s claims and his account of why he left Iran are set out at Paragraph 13 and 17 of the Authority decision and onwards. At paragraph 22 of its decision, the Authority did not accept that another of the applicant’s brothers died as a result of a beating at the hands of the Basij. Based on the medical evidence provided by the applicant, the Authority found that the applicant’s brother died from sepsis and kidney disease, not an assault. The Authority found that the applicant did not face a real chance of harm due to his brother’s death in 2002.
At paragraphs 23 to 25 of its decision, the Authority seems to accept that the applicant was involved in the Green Protest Movement, but concludes that the applicant would not be of any ongoing interest to authorities as a result of involvement as an ordinary protestor.
Paragraph 26 of the Authority decision deals with claims that the Basij attempted to recruit the applicant as an informer, in relation to vehicles owned by the Arab community. The Authority found that as the applicant does not now own a mechanics business and is prevented from working as a mechanic due to injury to his hand, he was not at risk upon return for that reason. The Authority was also not satisfied at paragraph 28 of its decision that the applicant would be at risk for an imputed political opinion in support of the Arab community in his home area.
Paragraph 27 of the Authority decision and onwards deal with the issue of multiple summons in relation to an incident in April 2013 where it is claimed the applicant assaulted a member of the Basij.
The applicant claims to have received a first summons to attend the local district Court in April 2013. The applicant did not attend the Court and instead departed the country five weeks later. The applicant claims that since he left Iran, three further summons had been issued. The second summons was issued in June 2013 requiring him to attend in mid-June. The third summons was issued in July requiring him to attend in August 2013. The fourth summons was issued in August 2013 requiring him to attend Court on 7 September 2013. The Authority notes that the summons included warnings that a failure to attend could result in a verdict in his absence. At his SHEV interview, the applicant stated that he had never received a verdict in his absence.
At paragraph 30 the following is stated:
The applicant’s claims regarding the summonses are inconsistent with country information regarding such documents. The various sources consulted by the Danish Immigration Service and Refugee Council regarding a judicial issues in Iran spoke of only one summons being issued, not four, before a judgement can be made for non-appearance. Non-attendance at interrogation can result in the arrest warrant, but no such warrant has been provided or claimed by the applicant.… A judgement issued after a non-attendance for a court case is served in writing to the address of the person. The applicant has not provided any country information that contradicts the Danish report. Yet the applicant claims to have received 4 summonses in 5 months, but no judgement or arrest warrant. For the first two summonses there was only a matter of days between the summons and the required attendance. One summons (the fourth) was sent before a previous summonsed appearance had even happened (the third). … Although the applicant has provided copies of the summonses, I note also the advice from DFAT that paper based documents such as court documents and summonses are easy to obtain in Iran through fraudulent means. Having regard to the inconsistencies referred to above, I find these summonses may have been fabricated to support the applicant’s claims. I find they are not reliable evidence in support of his claim to have been summonsed following an altercation with the Basij.
At paragraph 31 of its decision, the Authority expressed concern as to other elements of the applicant’s account of the altercation with the Basij. These are then discussed in the subsequent paragraphs. At paragraph 37 of its decision, the Authority does not accept the applicant’s claims and supporting evidence. The Authority concludes that the altercation did not occur, that the applicant was not of interest to the Basij or that he received 4 summons in respect of the altercation.
GROUNDS OF JUDICIAL REVIEW
The single ground of judicial review is set out in an Initiating Application filed with the Court on 24 May 2021. It is as follows:
Ground One
The IAA’s decision was based on a finding that was unreasonable, illogical, irrational or otherwise not open on the evidence before the IAA, being the finding that summonses continuing to be issued was ‘inconsistent with country practices’.
Particulars
a. The finding is at paragraph 30 of the IAA’s reasons.
b. The evidence relied upon by the IAA for the finding is the document ‘Danish Immigration Service and Refugee Council, Iran Judicial Issues, February 2018’. (“Danish Report”)
c. However, that document did not state that the country practice was that summons would never be issued more than once. Rather, the document contemplated that there might be the issue of a new summons ‘depend[ing] on the type of case’.
d. The IAA’s reasoning was not to the effect that the Applicant’s case could not be such a case.
THE APPLICANT’S SUBMISSIONS
The single ground of judicial review is the Authority’s conclusion, that the applicant had received multiple summons in respect of the incident which he claims caused him to flee the country was “inconsistent with country practices”, was not open on the evidence before the Authority
It is apparent that the only material relied upon by the Authority in this regard was the Danish report. The finding of the Authority as to inconsistency with country practices was not open on the evidence before it. The Danish report contained several paragraphs concerning summons at paragraphs 6 to 7, 14, 21, 32 to 33, 47 and 58 but nothing in those paragraphs supports the Authority’s conclusion that the applicant’s case was “inconsistent with country practices”.
The information in the Danish report which did go to what might happen if a summons was not answered, actually tended to support the very circumstances that the applicant said had occurred, that being that further summons were issued. At page 6 of the Danish report, it stated that “whether the judge will issue a new summons or not, depends upon the type of case’ – clearly contemplating that there might be further summons issued. At page 26, it is also stated that in “basically most penal lawsuits” there will only be one summons. Again, clearly contemplating that there is a category of case in which there might be multiple summons. The Authority did not refer to any of this evidence, but equally, did not reject it.
Accordingly, the legal representative for the applicant submitted that it was not open on the evidence before the Authority as to summons in Iran that receiving multiple summons was “inconsistent with country practices”. The evidence before the Authority on the topic could not rationally support such a conclusion: (see; Minister for Immigration and Citizenship v SZMDS [2010] 240 CLR 611 at [135]). It is to be noted that the submission is not put on the basis of a “no evidence “ground.
It was further submitted that this was not a case where the Authority’s reasoning about the authenticity of the summons overtakes its erroneous finding about the consistency with country information for several reasons.
First, the Authority’s reasoning that summons “may” have been fabricated is far too tentative to amount to an independent strand of reasoning which would render the misunderstanding of the Danish report immaterial.
Second, the concerns about the authenticity of the summons cannot be neatly segmented from the error: (see; VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 at [79]).
It was further submitted that the error relied upon by the Authority was material, in that there was a realistic possibility that the decision could have been different had the Authority not wrongly found that the issuance of multiple summons was “inconsistent with country practices”. It is conceivable that the Authority might then have accepted some or all of the applicant’s narrative that he been issued with multiple summons. The doubt expressed at paragraph 37 of the Authority decision, that the applicant is not of adverse interest to Iranian authorities on any return, would therefore have been revisited in the fresh light of the acceptance that there had actually been multiple summons, including the ones issued after his departure from the country. To conclude otherwise, would amount to impermissible de facto merits review.
THE FIRST RESPONDENT’S SUBMISSIONS
It was submitted on behalf of the first respondent that, the applicant seeks to impugn the conclusion of paragraph 30 of the Authority’s reasons that the applicant’s narrative as to the summonses issued on him would be “inconsistent with country practices” having regard to the Danish report, on the basis that the Authority’s conclusions were not supported by the words of the Danish report itself.
The legal representative for the first respondent submitted that while the reading of the Authority’s reasons for which the applicant contends might be open, if one were reviewing the Authority’s decision with “an eye keenly attuned to error”, the Authority’s conclusion at paragraph 30 of its decision must be read in context and having regard to the nature of the claims made by the applicant about the four summonses he asserts were issued to him. When read fairly, and within context, the Authority’s remarks at paragraph 30 of its decision indicate that the applicant’s version of events in relation to the issue of the four summons was not generally consistent with country information. That finding was open on the evidence.
Contrary to that asserted by the applicant, paragraph 30 of the Authority decision does not indicate that there would never be a case where multiple summons could be issued in respect of the same person. The Authority was not purporting to set a singular rule about judicial summons. Rather, the Authority made a factual finding that, taken altogether, this summons issuing practice described by the applicant was both unlikely as a matter of fact and generally inconsistent with the evidence provided in Danish report about known practices.
It is important in this context to note that there is a difference between inconsistency with what is stated to be a general proposition and a complete incompatibility. The applicant seeks to equate what is clearly expressed as a general observation with respect to consistency as a conclusive statement as to compatibility. The Authority did not conclude that the applicant’s story must necessarily be false because it did not reconcile with country information. The Authority merely noted the applicant’s story was inconsistent with the Danish report, indicating a lower likelihood that his story was accurate. Taken together with all other concerns about the applicant’s story in respect of the summons, this led the Authority not to accept his evidence. There is no error in this approach.
The legal representative for the first respondent further submitted that even if the Court accepted that the Authority made a finding at paragraph 30 of its decision which was not open on the available evidence, it was submitted that this error was not material and therefore not a jurisdictional error susceptible to remedy by the Court. An error will only be jurisdictional if it is material: (see; Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at [67] and [72]). A person asserting the existence of a jurisdictional error bears a practical onus to establish a “realistic possibility” that the decision would have been different had the error not occurred: (see; Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [4] and [45]-[50]).
The legal representative for the first respondent submitted that even if the error alleged by the applicant is correct, that there would not have been a realistic possibility of achieving different outcome. Firstly, the applicant claimed to have received four summons in five months and that one summons (the fourth summons), had been issued before an appearance date in relation of third summons had occurred. In addition to being “inconsistent with country practices”, these aspects of the documentary evidence led the Authority to conclude that the continual additional issuance of summons was “unlikely in a practical sense”.
Further, in addition to finding at paragraph 19 of its decision that the summons “may have been fabricated”, the Authority also found in the final sentence of paragraph 30 of its decision that “they (the purported summons) are not reliable evidence to support his claim to have been summonsed following an altercation with the Basij’. This was not a tentative conclusion incapable of forming an independent strand of reasoning, the totality indicates that, having regard to all of the evidence of this summons, including DFAT evidence that paper-based documents, including summons, are easy to obtain by fraudulent means, it was unlikely that four summons would be issued the applicant.
Finally, the conclusions expressed by the Authority at paragraph 37 of its decision, that the applicant was not of adverse interest to Iranian authorities, rested on conclusions in addition to the Authority’s assessment of the Danish report. These included concerns about inconsistencies in the applicant’s versions of alleged altercations with the Basij at paragraph 31 and 32, and concerns about the veracity the applicant’s claims regarding subsequent harassment of the applicant’s family at paragraphs 33 to 36 of the Authority decision. It was submitted that this was not a case that the conclusions at paragraph 37 rested solely on the impugned reasoning at paragraph 30 of the Authority decision.
CONSIDERATION
This matter revolves around a single aspect of the Authority’s decision at paragraph 30 of the Authority decision, in so far as it relates the claim that the applicant received four summons in relation to an altercation with the Basij is ‘inconsistent with country information’. The applicant submitted that the finding was unreasonable, illogical, irrational or otherwise not open on the evidence before the Authority.
It is well accepted that the reasons of the Authority should not be read with “an eye keenly attuned to the perception of error”: (see; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [30]). Unreasonableness is where a decision maker has come to a conclusion that no reasonable decision maker could have come to: (see; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [28]) (“Li”). The test for unreasonableness is ‘stringent’ and will only arise in rare cases: (see; Li at [30] and [113]).
A finding is not illogical or irrational if logical minds might follow a different process of reasoning that might lead to a different conclusion. The fact that one conclusion has been preferred to another does not give rise to jurisdictional error: (see; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [131]).
The Court has read the Danish report in its entirety. At paragraph 1.1.2, reference is made to a summons being delivered in written form to the person concerned at his or her address. The following is then stated:
Summons will only issue once in civil claims and most penal law suits…Whether the judge will issue a new summons, depends upon the type of the case.
At paragraph 1.3 it is noted that a warrant of arrest may be issued where the person concerned does not show up at Court. Alternatively, the case may proceed and a judgement issued in absentia. If sentenced in absentia, the person’s family/lawyer will then receive the judgement.
Impugned paragraph 30 of the Authority decision does not come to the conclusion that the summons are not reliable solely upon the basis that the applicant claimed more than one was issued. It is based on a range of matters, including that one summons was apparently issued, being the fourth, prior to the listed Court return date for the third. Further, notwithstanding the applicant’s continued non-appearance, no judgement in absentia or arrest warrant was produced by the applicant.
Further, the Authority noted that advice from the Department of Foreign Affairs and Trade (“DFAT”) indicates that fraudulent Court documents are relatively easy to obtain. It was on the totality of these concerns that the Authority concluded that the summons may have been fabricated and were not reliable evidence of the applicant’s claim to have been summoned to Court following an altercation with the Basij. Further, the Court accepts the submission that a finding the issue of four summons was inconsistent with country information is not the same as incompatible with country information.
The impugned finding was but one of a number of matters that concerned the Authority as to the reliability of the summons being evidence of the claimed altercation with the Basij. Even without this finding, the Court is satisfied that there was sufficient information for the Authority to conclude that the summons were not reliable.
In these circumstances the Court does not consider that the conclusion of the Authority meets the stringent requirement for legal unreasonableness, nor is it irrational, illogical or without an evidentiary foundation. The Court is satisfied that the factual finding was open to the Authority for the reasons it gave based on the material that was before it.
The Court accepts the submission of the first respondent that even if the Court is wrong as regards the impugned paragraph 30 of the Authority decision, based on the totality of the evidence, there was more than enough material to ground the Authority’s findings to doubt the applicant’s credibility and thus the veracity of his story regarding the altercation with the Basij. This included the fact that no judgement in absentia had issued or indeed a warrant for the applicant’s arrest is significant. In the Courts view, the absence of these matters, which were denied by the applicant, of themselves were of sufficient basis for the Authority to have considerable concerns as to the veracity of the applicant’s story. The Court is of the view that the alleged error, which the Court does not find, even if it does exist, is not material to the outcome in that it would not have resulted in a different result.
CONCLUSION
Given these findings, the application is dismissed
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Associate:
Dated: 2 November 2021
2
9
1