BLU17 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs
[2023] FedCFamC2G 88
Federal Circuit and Family Court of Australia
(DIVISION 2)
BLU17 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2023] FedCFamC2G 88
File number(s): MLG 683 of 2017 Judgment of: JUDGE YOUNG Date of judgment: 10 February 2023 Catchwords: MIGRATION – application for judicial review of a decision of the Immigration Assessment Authority to refuse temporary protection visas - concerning 3 applicants - where the first applicant is an Ahwazi Arab and his wife is an ethnic Persian - where the first applicant claims he was accused of being an extremist Sunni Muslim - where the first applicant claims he was detained and subjected to extreme torture - where the Authority was unconvinced by the first applicant’s claims - where the first applicant claims the Authority fell into jurisdictional error - where the first applicant claims the Authority failed to take into account a relevant consideration - where the first applicant claims the Authority was unreasonable - Court satisfied the Authority dealt with the claim adequately - Court satisfied the application should be dismissed- Court orders the applicants to pay the Minister’s costs. Legislation: Migration Act 1958 (Cth) ss 473DB, 473DC and 473DD 473DE Cases cited: ABT17 v Minister for Immigration and Border Control (2020) 269 CLR 439
ATD19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 576
Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475
WAEE V Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593
Division: Division 2 General Federal Law Number of paragraphs: 52 Date of hearing: 18 November 2022 Place: Darwin Solicitor for the Applicants: Aum Lawyers Pty Ltd Solicitor for the Respondents: Sparke Helmore ORDERS
MLG 683 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BLU17
First applicant
BLV17
Second First applicant
BLW17
Third First applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
JUDGE YOUNG
DATE OF ORDER:
10 February 2023
THE COURT ORDERS THAT:
1.The applications are dismissed.
2.The first and second applicants are to pay the first respondent’s costs in the sum of $7,853.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE YOUNG
This is an application for judicial review of a decision of the Immigration Assessment Authority (the Authority) made on 15 March 2017 to affirm a decision of the Minister's delegate made on 7 November 2016 to refuse the applicants Temporary Protection Visas.
The applicants are Iranian nationals who arrived in Australia in 2012. The first applicant is the husband of the second applicant and the third applicant is their child. The protection claims of the second and third applicants are dependent upon the claims of the first applicant.
·The first applicant’s claims were as follows:
·He is an Ahwazi Arab who was unable to marry his wife for two years because she is an ethnic Persian and her father would not agree to the marriage.
·He operated a successful real estate business but Persian clients expressed hostility to him on hearing him speak Arabic.
·In 2012 he was detained by the Iranian intelligence service, Sepah, for 17 days because he had expressed an opinion about Arab rights in Iran to an undercover agent. He was also accused of being an extremist Sunni Muslim (Wahabi) because the way he prayed reflected Sunni prayer practices. He also said that he was arrested on the basis of his relationship with a man named Ali Naami Sharifi who was arrested due to an explosion at an oil pipeline and subsequently executed. He said that this man was his second cousin.
·The first applicant said he was detained for 17 days and subjected to extreme torture and abuse. He said he was released but was thereafter summoned to appear in court but fled to Australia with his family.
·He said his older brother arranged for him to be released from detention on bail after using their father's home as security and the home was seized and subsequently sold in 2015. He said his older brother also paid money to the authorities to obtain his release.
·The first applicant said while he was in detention his home was raided by the authorities who found a Rolling Stone magazine with a picture of a singer wearing a bikini and he was subsequently charged with the distribution of pornography.
·He said he has two tattoos on his back: one of Che Guevara and one of Bob Marley. While he was in detention the authorities threatened to burn them off but did not.
·He said after his release his brother urged him to flee Iran and he left Tehran airport lawfully using his passport.
·He said that he was supposed to appear in court on 8 August 2012 but he left Iran before this. He said he had received three court summonses before leaving Iran.
·The second and third first applicants left Iran in the same manner two weeks after the first applicant and travelled to Australia with the first applicant's younger brother who is also in Australia.
·If he returns to Iran he fears he will be imprisoned and killed by the authorities.
·He also said that he fears harm as a result of his personal information being released through the departmental data breach.
·The claim of the second first applicant, the first applicant’s wife, is that she will be arrested on the basis of her husband's profile and she fears the third first applicant will also be harmed for the same reason if they are forced to return to Iran. The second and third first applicants also fear harm as a result of the data breach.
The Authority accepted that the first applicant was an Ahwazi Arab and had been a successful real estate agent and that he was from a wealthy, well-known Arab family. However, the Authority did not accept that the first applicant had ever been arrested or tortured or charged with distribution of pornography
The Authority accepted DFAT country information that there was a high level of societal discrimination in Iran against Arabs as a result of patronage, nepotism and favouritism, rather than official or state policies. It accepted that the risk for Arabs increased dramatically if they took a public position to assert cultural or political rights. The Authority found that this did not apply to the first applicant because he had not participated in any protests in relation to cultural or political rights or any other matters and there was no evidence that he had played any prominent role.
The Authority did not accept that the first applicant came to the notice of the authorities because he prayed in a Sunni manner. The Authority pointed to inconsistent statements by the first applicant about his religious practice and interest. In his arrival interview he said he was a Muslim but "not Shia or Sunni". In his statement of claims he said he considered himself to be a Shia Muslim, although the Authority also observed that the covering letter written by the first applicant's migration agent containing his statement of claims had described the first applicant as a "Sunni".
The first applicant said in his protection visa interview that he did not practise his religion and had only occasionally prayed at the mosque.
The Authority said that given this evidence it did not accept that the first applicant had a profile likely to attract the attention of the authorities or likely to be seen as promoting Sunni Islam or Wahabism.
The first applicant also said in his statutory declaration setting out his claims and in his protection interview that while he was in prison he was presented with a photograph or photographs of a man, Ali Naami Sharifi, who he said was his second cousin and who had been executed by the Iranian authorities because of his involvement in an explosion to sabotage a pipeline. The Authority referred to country information that indicated that Sharifi had been arrested during a peaceful protest. The first applicant said there was other country information that indicated Sharifi and other men were forced to confess to a pipeline bombing in October 2012. The country information, according to the Authority, referred to forced confessions by the men but said the men were sentenced to death over the killing of a policeman. The Authority concluded that the first applicant had provided evidence about Sharifi which was inconsistent and not supported by country information.
On 8 September 2012 the first applicant was interviewed after his arrival through an interpreter. According to the English language record of the interview, he said that he had been arrested and held in jail for 15 days. He said he was tortured during that time. The arrival interview record contains two questions and answers about Sharifi:
…
How were you physically tortured?
They sat me on a chair facing the wall. They showed me photos asking who they were and I said I don’t know and they were slapping me from behind. Ali Naami was executed.
How does this relate to your case?
They were asking me what my relationship was with this guy. I told them I didn’t know them (sic). They told me that he was coming to my house but I told them this was not correct. They showed me around 200 photos.
In his statutory declaration of 3 October 2015 the first applicant said:
25.Among the people who were killed, four of them were from our tribe; one of them was my second cousin, Ali Naami Sharifi. This occurred nearly 4 years ago.
26.He was arrested because there was an explosion at an oil pipe in the local area of Malashaia. It is a very poor area and mostly Arabs live there. He was one of the 19 people arrested over this incident.
27.He was arrested because he had two cars in his garage and this level of affluence made the intelligence authorities suspicious. The cars were part of his business….
30.This brought me to the attention of the authorities, because Ali told them the story about me helping him with his legal matter.
In the first applicant’s migration agent’s submission dated September 2016 it was said that “[the first applicant] had given Ali Naami Sharifi some financial assistance in the past”.
In the delegate’s decision record dated 7 November 2016 the first applicant’s claims in relation to this incident are described as follows:
• They showed him pictures of people and asked him to tell them everything about each person and their associations. He betrayed his friends by giving them their contact details. One of his friends has been arrested and is awaiting the death penalty.
• On the second day he was shown a photo of Ali Naami Sharifi. He told them [the interrogators] that he [the first applicant] had been helping him [Sharifi] with some legal documents to do with his car.
The Authority referred also to the first applicant’s interview with the delegate (presumably after listening to the audio record) in the following terms:
During the TPV interview the first applicant stated that he had met Ali eight to 10 times and he was the son of his uncle. He had assisted him for a two month period prior to his arrest in 2011 to resolve his car issues.
The Authority accepted that Sharifi had been executed but was not satisfied that the first applicant had any relationship to him.
The first applicant also claimed to have received three summonses after his release. The summonses were not presented as evidence. The first applicant said that he was unable to obtain the summonses because they were delivered to his home which was sealed or locked by the authorities. He said, nevertheless, he knew they were summonses directed to him because his neighbour had told his brother that he had seen the authorities come to the home and put the summonses under his door. He said his neighbour recognised the people delivering the summonses because of the uniforms they wore.
The second first applicant stated in her protection visa interview that she had returned to their apartment after the first applicant's release in order to obtain clothing. She made no mention of the apartment being sealed or locked by the authorities.
The Authority did not accept the first applicant's claims about his apartment or that he was unable to obtain the summonses because he could not obtain access to his apartment. The Authority considered it implausible that the first applicant's neighbour was able to determine the nature of the summonses without seeing them or having any interaction with the persons who delivered the summonses.
The first applicant also stated he had a copy of a summons which his younger brother had received. His younger brother arrived in Australia with the first applicant and the first applicant's wife and child in 2012. He said his younger brother had been arrested and detained for four or five days in Iran during the same time as him. The English translation of this summons indicated it was issued in 2014, after the first applicant and his brother left Iran. The name on the summons was not that of the first applicant's younger brother but of another brother who continues to live in Iran. The first applicant said that the brother who still lives in Iran had never been arrested or harmed. The Authority was not satisfied the summons was a genuine document
The Authority was not satisfied the first applicant was credible. It was not satisfied he was arrested, had received summonses, was a person whose profile was of interest to the authorities or of the reasons for the first applicant's departure.
The Authority did not accept that the first applicant's home had been raided or that the authorities had found a copy of a Rolling Stone magazine or accused him of distributing pornography.
The Authority accepted the first applicant has tattoos on his back but did not accept that the first applicant had ever been detained as claimed or that had been threatened by the authorities because of his tattoos.
In relation to the data breach the Authority accepted that personal information about the first applicants had been inadvertently released but did not accept that the information had been accessed by the Iranian authorities or, if it had been, did not accept that the information would be of adverse concern to the authorities. The Authority found the first applicants were not of interest or concern to the Iranian authorities for any reason and was not satisfied the data breach would result in harm to them.
Grounds of Review
The further amended grounds of review are as follows:
1The Second Respondent (“the Tribunal “) (sic) fell into jurisdictional error in that it failed to consider relevant considerations.
Particulars
1.The Immigration Assessment Authority, in making its decision, failed to consider pursuant to section 473 DD of the Migration Act 1958 (“the Act”) and properly take into account a relevant consideration namely the two letters written by the District Governor of Hoveyzeh (Decision [5]).
2The Immigration Assessment Authority (“the Authority”), in making its decision, failed to consider pursuant to section 473 DD of [the Act] and properly take into account a relevant consideration namely the documents with photos, detailing the First [A]pplicant’s connection with politically active Ahwazi Arabs in Iran (Decision [6]).
3The Authority did not consider with an actual intellectual engagement the claim and evidence that the first applicant was abducted, detained for 17 days, tortured and questioned (Decision [25]).
2 The Authority fell into jurisdictional error in that it was unreasonable.
Particulars
1The Authority was unreasonable in not seeking new information from the Applicants at interview pursuant to section 473 DC of the Act, because the Applicants’ then representative had raised serious issues about the delegate’s rejection of central aspects of the claims for protection, including the First Applicant’s claim that he had been the subject of an undercover investigation by the Sepah, had been abducted for 17 days, questioned and tortured (Submissions, September 2016, 15 December 2016), but the Authority rejected this claim without either inviting him to an interview and without any detailed consideration of the evidence and arguments relating to the claim, including the Statutory Declaration of the migration agent, formerly a psychotherapist, dated 3 October 2018.
2The Authority was unreasonable in not seeking new information from the Applicants at interview pursuant to section 473 DC of the Act, about the First Applicant’s relationship to a man he named and whom the Authority accepted was arrested and executed by the Iranian authorities (Decision, [20]).
3The [Authority], in using specific information to make its decision, namely the DFAT Country Information Report Iran April 2016, failed to put this information and any concerns to the applicant for comment before making its decision. It was thus unreasonable in failing to seek new information from the Applicants under section 473 DC of the Act, whether at interview or otherwise.
4Further or in the alternative to Particular 1 to this Ground, [the Authority], misunderstood its task, making an adverse credibility finding without interviewing the applicant. In particular, it was unreasonable to reject central aspects of the claims for protection, including the First Applicant’s claim that he had been the subject of an undercover investigation by the Sepah, had been abducted for 17 days, questioned and tortured (Submissions September 2016, 15 December 2016), but the Authority rejected this claim without inviting him to an interview and without any detailed consideration of the evidence and arguments relating to the claim, including the Statutory Declaration of the migration agent, formerly a psychotherapist, dated 3 October 2018.
5Further or in the alternative to particulars 1 and 2 to Ground 1, the Authority was unreasonable in not considering under section 473 DD of the Act documents from a District Governor about the First Applicant’s relationship to his grandfather, and which corroborated his relationship to the man whom he claimed to be his cousin and who was executed by the Iranian authorities (Decision, [5], [20]), and documents with photos, detailing the First Applicant’s connection with politically active Ahwazi Arabs in Iran (Decision, [6]).
6The Authority had no reasonable or logically probative basis to reject the First Applicant’s claim that he had come to the attention of the Iranian authorities by praying on occasion in a Sunni manner (Decision, [16]).
3The Authority fell into jurisdictional error in that it erred in interpreting or applying the law.
Particulars
1The Authority erred in interpreting or applying section 473 DC of the Act. The Applicants refer to and repeat Particulars 1, 2 and 3 to Ground 2 of this application.
2The Authority erred in interpreting or applying section 473 DD of the Act. The Applicants refer to and repeat Particulars 1 and 2 to Ground 1, and Particular 4-5 (sic) to Ground 2 of this application.
Ground 1
In relation to Particular 1, the Authority considered both the letters from the District Governor and the photographs for the purpose of s 473 DD because they were information that had not been before the delegate but the Authority was not satisfied that the new information satisfied the requirement of subsection (b)(i) or (ii).
The two letters from the District Governor are dated 1971. No reason was provided as to why they could not have been given to the delegate. The letters appear to be official documents appointing two men, each with the name Sharifi, as interim village heads of two separate villages. According to the first applicant, the men are his grandfather and his grandfather's brother. He further claimed that his grandfather’s brother was the grandfather of the man who was executed. He said that these documents proved his relationship to that man. The documents themselves do not contain any information indicating that either of the men were related to the first applicant, or that the men were brothers or that one of the men was the grandfather of the executed man. The documents do not establish that the executed man was related to the first applicant nor, in my view, could they rationally affect the probability of that claim. Accordingly, they could not have affected the consideration of the first applicant’s claims.
In my view the Authority’s conclusion about the letters was open to it.
In relation to Particular 2, the photographs depict men apparently engaged in a small protest about the diversion of the Karun river (in southwest Iran). The photographs were apparently taken in 2013, after the first applicant’s departure from Iran. The first applicant said his brother is depicted in one or more of the photographs but they do not suggest that the first applicant was engaged in advocating for the political or cultural rights of Iranian Arabs or otherwise had a profile of interest to the authorities. Again the Authority was not satisfied that subsections (b)(i) or (ii) were satisfied. In relation to subsection (b)(ii), as with the letters concerning the two men, the photographs are not related to any of the first applicant’s claims and are not probative of any of the first applicant’s claims. They could not have affected their consideration.
Particular 3 alleges that the Authority did not actively intellectually engage with the first applicant's primary claim that he was abducted and tortured. It was submitted that the Authority was required to address the first applicant’s claims of torture in detail and its failure to do so constituted a failure to discharge its statutory task of review. In WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593, [47] the Full Court said:
It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected.
The Authority specifically referred to the first applicant's claim of torture in his arrival interview. In that interview the first applicant is recorded as expressly denying that he knew or had a relationship with the man executed. (During submissions before me counsel for the first applicant said that the Authority had misunderstood the record of the arrival interview but that submission was not developed and the evident inconsistency is not otherwise explained by the first applicant). The Authority said, correctly in my view, that the first applicant's statement about Sharifi in his arrival interview was inconsistent with his later claims. The Authority referred to that matter as undermining his credibility. I am satisfied that there is a rational basis for the Authority’s conclusion on that point.
More generally, the Authority was not satisfied that the first applicant was credible, pointing to other inconsistencies in his claims or lack of support for his claims in the country information.
Acceptance of the first applicant’s claims of detention and torture depends on acceptance of his claim as credible. The inconsistency between his initial claim that he did not know Sharifi and his subsequent claims that Sharifi was his second cousin, or “son of his uncle”, and he had helped him in relation to some legal matter concerning his car is irreconcilable. Where a claim is entirely dependent on the credibility of an applicant, and the applicant fails to establish credibility, it is not necessary for the decision-maker to engage further with the specifics of the claim. In any event, I do not accept that the Authority failed to intellectually engage with the first applicant’s claims in relation to his claims of detention and torture. The Authority specifically referred to inconsistencies in the first applicant’s report of his interrogation and inconsistencies in the aftermath concerning the summonses. It concluded that the entire narrative was not credible.
The first applicants’ counsel also submitted that the Authority failed to address the evidence of the first applicant’s wife who also said he had been detained. It is correct that the Authority did not directly address this aspect of her evidence but it did refer to her evidence about entering the home, which it found was inconsistent with the first applicant’s evidence. It may be inferred that the Authority did not accept the second applicant’s evidence about the first applicant’s detention. In any event I consider that such an error, if there was one, was not jurisdictional because there were other unrelated reasons for not accepting the first applicant’s evidence.
Ground 2
It is convenient to deal with Particulars 1 and 2 together. Both particulars allege that the failure of the Authority to accept central aspects of the first applicants’ claims made it unreasonable not to invite the first applicants to an interview.
Section 473 DB of the Act says that the Authority, subject to Part 7 AA of the Act, must review a fast track reviewable decision by considering the review material provided to the Authority without accepting or requesting new information and without interviewing the referred first applicant. However, subject to the other provisions of Part 7AA, s 473DC permits the Authority to get new information that was not before the Minister when the Minister made the decision under s 65 and the Authority considers may be relevant.
The first applicants relied on Minister for Immigration and Border Protectionv CRY16 (2017) 253 FCR 475 to submit that an unreasonable failure to consider the exercise of the discretion in s 473DC may constitute jurisdictional error. In CRY16 the delegate refused to accept the claims of an applicant for a protection visa to fear harm in Lebanon. The Authority in reviewing the decision accepted the claims to fear harm but failed to give the first applicant an opportunity to be heard before concluding that he was not a refugee because it was practicable for him to relocate within Lebanon. This did not constitute procedural unfairness because the statute provided an exhaustive statement of the requirements of natural justice under Part 7AA of the Act. The issue was to be considered through the lens of the principles of legal reasonableness rather than the principles of procedural fairness but the Full Court nevertheless held that such unfairness was not irrelevant to the question of whether there had been unreasonableness.
In ABT17 v Minister for Immigration and Border Control (2020) 269 CLR 439 the High Court confirmed that a failure to exercise the discretion under s 473DC may be unreasonable so as to constitute jurisdictional error. The judgement also confirmed that the demeanour of an applicant may be new information. In ABT17 the delegate, after an interview and observing what were said to be marks of torture on the first applicant’s body, accepted the first applicant’s claims of torture. The Authority, without affording the first applicant the opportunity to attend an interview, but after considering the audio record, rejected the first applicant’s claims as lacking credibility. Each of the justices held that the Authority’s failure to seek to interview the first applicant in these circumstances was unreasonable. The plurality (Keifel CJ, Bell, Gageler and Keane JJ) identified an informational gap between the delegate’s interview in person and the Authority’s review on the papers provided under s 473CB. The plurality said the question to be asked was whether the Authority had failed to comply with the implied condition of reasonableness by interviewing the first applicant in person to bridge the informational gap. They said:
18The Authority being able to exercise its powers to get and consider new information to bridge an informational gap in the review material by inviting a referred first applicant to an interview in order to gauge and consider his or her demeanour for itself, the question becomes as to when if at all compliance with the implied condition of reasonableness in the conduct of the review or in the consideration and exercise of those powers might compel the Authority to adopt that course. Contrary to the urging of the appellant, answering that question is not assisted by seeking to infuse the implied condition of reasonableness with notions of procedural fairness, separate implication of which is expressly excluded from the scheme of Pt 7AA.
…
21Answering the question therefore requires an examination of the decision-making pathways reasonably open to the Authority in reviewing the decision of a delegate to determine for itself whether the criteria for the grant of a protection visa have been met where the review material that it is obliged to consider in making that determination leaves out information that was available to and required to be considered by the delegate.
22The mere existence of an informational gap will not necessarily result in the Authority being “disadvantaged in comparison with the delegate”. That is because, having regard to country information and other information contained in the review material, the credibility of the referred first applicant will not necessarily have a significant bearing on the Authority's determination of whether the criteria for the grant of a protection visa have been met. That is also because, having regard to country information and other information contained in the review material, how the referred first applicant may have presented in the interview with the delegate will not necessarily have a significant bearing on such assessment of his or her credibility as the Authority might reasonably undertake.
23 To the extent that the credibility of the referred first applicant might bear on whether the Authority is to be satisfied that the criteria for the grant of a protection visa have been met and to the extent that his or her appearance in an interview with the delegate might bear on his or her credibility, it would ordinarily be open to the Authority to form its own assessment of credibility taking into account such second-hand description or impression of his or her appearance as might be conveyed expressly or by implication in the statement forming part of the review material which sets out the delegate's findings of fact and refers to the evidence on which those findings were based. Taking into account any such description or impression of the referred first applicant's appearance, it would ordinarily then be open to the Authority to reach an assessment of the referred first applicant's credibility without any need for the Authority's assessment of credibility to coincide with the delegate's assessment of credibility.
24 The Minister is therefore correct to say that the Authority is not required to interview a referred first applicant merely because credibility is in issue or merely because the Authority comes to a different view as to credibility than did the delegate.
25 However, the Authority will act unreasonably if, without good reason, it does not invite a referred first applicant to an interview in order to gauge his or her demeanour for itself before it decides to reject an account given by the referred first applicant in an audio recorded interview which the delegate accepted in making the referred decision wholly or substantially on the basis of its own assessment of the manner in which that account was given. That is what happened in this case.
(citations omitted)
In this case the delegate did not accept the first applicant’s claimed connection to Sharifi. The delegate did not accept the first applicant’s claim that he had been detained for 17 days and said she found his evidence to be vague and inconsistent. There was not, as in ABT17, an informational gap between a favourable assessment of credibility in a face to face interview by the delegate and an unfavourable assessment of credibility by the Authority without an interview.
In ATD19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 576 the delegate accepted as genuine photographs that were said to depict marks on the first applicant’s body of physical abuse from domestic violence. The delegate, while accepting the photographs were genuine, did not accept that the marks were inflicted by domestic violence. The Authority did not accept that the photographs depicted the first applicant and did not accept the first applicant was credible at all. On appeal to the Federal Court it was said the decision not to interview the first applicant was unreasonable.
Rangiah J said that in the light of the reasoning in ABT17 it was necessary to consider:
[47] … first, whether there was an informational gap between the delegate and the Authority; second, whether the Authority could have bridged any such gap by inviting the first appellant to an interview; third, whether any informational gap resulted in the Authority being disadvantaged in comparison with the delegate; fourth, whether the failure to invite the first appellant to an interview was unreasonable; and, fifth, whether that failure was material.
His Honour accepted that there was such an informational gap in relation the first and second issues. In relation to the third issue, he observed that in the case before him the photographs may not necessarily have had a significant bearing on the Authority’s determination because there were other unrelated, substantial reasons for not accepting the appellant’s credibility. He noted that the plurality in ABT17 observed at [25] that the Authority will act unreasonably if, without good reason, it does not interview an first applicant in order to gauge demeanour for itself before it rejects the delegate’s favourable assessment of credibility. He found there was a good reason for not conducting an interview because the photographs could not have affected the Authority’s decision. He found on the fifth issue that any error was not material for the reasons given in respect of the third and fourth issues.
Adopting the approach of Rangiah J in this case, I am not satisfied that there is any informational gap between the delegate and the Authority in the sense identified in ABT17. The delegate found the first applicant’s evidence was “vague and inconsistent” and the delegate did not accept the first applicant had been arrested or that he was of interest to the Iranian authorities. The credibility findings by the Authority were the same. There was no informational gap to be bridged and there was no matter where the Authority was disadvantaged in comparison to the delegate. If there was no informational gap between the delegate and the Authority and there was no new information available to bridge such a gap there was a good reason for the Authority not to invite the first applicants to an interview. No question of materiality arises.
The particular also refers to a statutory declaration dated 3 October 2016 of a Ms Brace who was employed by the first applicants’ migration agent, initially as an office manager and paralegal but later as a migration agent herself. Ms Brace said she was registered as “a psychotherapist” until February 2016, when her registration lapsed. She said that on 16 September 2015 her principal asked her to meet the first applicant to take instructions from him in relation to his claim. She said that she saw the first applicant in her capacity as a “paralegal”. Her report describes what the first applicant said to her and her impressions of the first applicant’s demeanour. Given her employment by the first applicants’ migration agent she could not be described as independent. The primary purpose of the statutory declaration appears to have been to bolster the first applicant’s credibility. Ms Brace’s evidence does not purport to be an expert report. Her qualifications as a “psychotherapist” are not described and the relevance of any such qualification is unstated.
Ms Brace’s statutory declaration was provided to the delegate and was the subject of submissions to her. The delegate referred to it but did not discuss it in detail. As mentioned, the delegate did not believe the first applicant’s claims because of their inconsistency and vagueness. The Authority did not refer to the statutory declaration. The Authority, as had the delegate, disbelieved the first applicant’s claims because of inconsistency with his prior claims and with country information. There were reasons other than demeanour, as described by Ms Brace, for disbelieving the first applicant.
Again, there was no informational gap to be bridged and there was no matter where the Authority was disadvantaged in comparison to the delegate. Because there was no new information available to bridge any such a gap there was a good reason for the Authority not to invite the first applicants to an interview. The Authority did not act unreasonably.
Particular 3 alleges the Authority acted unreasonably in failing to put the DFAT Country Information Report Iran April 2016 to the first applicant or failing to seek new information from him or both. While the correct “lens” is unreasonableness, a lack of procedural fairness may constitute unreasonableness: CRY16. The delegate referred to this country information report in her decision (at footnote 3 and following) for the purposes of assessing the first applicant’s claims about his “adverse profile” as an Ahwazi Arab. The delegate found aspects of his account to be inconsistent with country information. Subsequently the first applicants’ migration agent addressed these matters in the first applicants’ submission to the Authority dated 16 December 2016. The country information was not new information for the purpose of s 473DE (1) and, in any event, did not need to be given to the first applicants because of s 473DE (3). Further, and notwithstanding s 473DE, there was no “practical unfairness”. In the circumstances a failure to put the information or a failure to invite the first applicant to comment at interview was not unreasonable.
Particular 4 alleges the Authority misunderstood its task in making an adverse credibility finding without interviewing the first applicant and, in particular, that it was unreasonable to reject central aspects of the first applicants’ claims. In submissions the first applicants elaborated on the allegation of unreasonableness. It was submitted that the rejection of the first applicant’s claim of abduction and detention did not have a logical basis. I do not accept that submission. The reasons for the Authority’s rejection of the first applicant’s claims included inconsistency with his prior claims, inconsistency with country information and inconsistency with the evidence of his wife about whether their home was sealed so as to prevent him from obtaining the summonses said to have been served. These matters provided a logical basis for disbelief of the first applicant. I am not satisfied there is jurisdictional error as alleged.
Particular 5 alleges, in the alternative to Particulars 1 and 2 of Ground 1, that the Authority was unreasonable in not considering the new information constituted by the letters from the District Governor and the photographs of the men protesting about the Karun river diversion. For the reasons given in relation to Ground 1, I am satisfied there was an evident and intelligible basis for the Authority’s decision. For the reasons given, I reject the submission that the letters from the District Governor corroborate the first applicant’s claim to be the second cousin of or related to the executed man. I am not satisfied there is jurisdictional error as alleged.
Particular 6 alleges that the Authority had no reasonable or logically probative basis to reject the first applicant’s claim to have come to the attention of the Iranian authorities because he prayed in a Sunni manner. at paragraph [16] the Authority discussed the first applicant’s claims about his religious practice. The Authority was not satisfied that the first applicant’s evidence about this was consistent or indicative of strong religious commitment of any kind and did not accept that he promoted Wahabism or was perceived as doing so. In my view the Authority’s conclusion was open to it on the basis of the first applicant’s evidence. There is no jurisdictional error.
Ground 3 alleges that the Authority committed errors of law in interpreting and applying ss 473DC and 473DD. The particulars are the same as in Grounds 1 and 2. For the reasons given in relation to those particulars I am not satisfied there has been any such errors. In particular, for the reasons set out in relation to Ground 2, I do not accept the first applicants’ submission that there was an informational gap of the kind described in ABT17. This ground is not made out.
The application is dismissed.
The applicants are to pay the Minister’s costs in accordance with the sum allowed in Division 1 of the Rules, which is $7,853.
I certify that the preceding fifty- one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young. Associate:
Dated: 10 February 2023
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