BNP17 v Minister for Immigration

[2019] FCCA 1382

FEDERAL CIRCUIT COURT OF AUSTRALIA

BNP17 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1382

Catchwords:
MIGRATION – Administrative Appeals Tribunal – temporary protection visas – concession made by first respondent – matter remitted to Immigration Assessment Authority.

Legislation:

Migration Act 1958 (Cth)

Cases cited:

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184
DFC16 v Minister for Immigration and Border Protection [2018] FCAFC 56
Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16

First Applicant: BNP17

Second Applicant: BNQ17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: MLG 715 of 2017

Judgment of: Judge Mercuri

Hearing date: 18 October 2018

Date of Last Submission: 18 October 2018

Delivered at: Melbourne

Delivered on: 24 May 2019

REPRESENTATION

Counsel for the applicants: Mr R. Knowles

Solicitors for the applicants: Victoria Legal Aid

Counsel for the respondents: Mr C. Tran

Solicitors for the respondents: DLA Piper

ORDERS

1. A writ of certiorari issue, quashing the decision of the second respondent dated 17 March 2017.

2. A writ of mandamus issue directing the second respondent to re-determine the application according to law.

3. The first respondent pay the applicants’ costs as agreed or, failing agreement, as assessed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 715 of 2017

BNP17

First Applicant

BNQ17

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for judicial review of a decision of the second respondent, the Immigration Assessment Authority (“IAA”) affirming the decision of the first respondent, the Minister for Immigration and Border Protection (“the Minister”) not to grant each of the applicants a temporary protection visa (“the visas”).

2. It is common ground that for the purposes of this application, only the first applicant’s claims for protection are relevant. 

The applicants’ claims

1. The applicants are citizens of Iran.  The first applicant is the mother of the second applicant.  The first applicant claims that:

   a)she was married to a violent man, the father of the second applicant;

   b)when she was seven months pregnant with the second applicant, the father beat her resulting in the second applicant’s premature birth;

   c)when the second applicant was six months, the first applicant left the father and the father took the second applicant to live with him, resulting in the first applicant not seeing the second applicant for some six months;

   d)the first applicant was unable to get custody of the second applicant as Iranian courts favour men;

   e)ultimately the first applicant was permitted to spend three days with the second applicant, and it was at this time that she decided to keep the second applicant with her and leave Iran;

   f)she subsequently bribed officials to obtain a passport for the second applicant and they left Iran and made their way to Australia; and

   g)whilst in Australia, the first applicant converted to Christianity and both she and the second applicant were baptised.

2. On 11 August 2013, the applicants entered Australia by boat without visas.

3. Whilst in Australia, the first applicant was found guilty without conviction of ‘aggravated assault’ for which she received a good behaviour bond.[1]  The National Police Certificate indicates that the offence in respect of this incident related to “assault a person under 16 years by adult”[2].

   [1] Court book page 205.

   [2] Court book page 236.

4. On 16 March 2015, the first applicant was assessed by the International Health and Medical Services (“IHMS”) and diagnosed as suffering from a personality disorder and depression.[3]

   [3] Court book page 238.

5. In 2015, the Victorian Department of Human Services (“DHS”) became involved with the first and second applicant.  On or about 15 May 2015, an interim accommodation order was made in respect of the second applicant by which she was placed in an out of home care service.[4] 

   [4] Court book page 186.

6. The following conditions applied to that order:

   ·Mother must not live or have contact with the child (other than court ordered contact) unless assessed as appropriate by DHS;

   …

   ·Mother must not expose the child to physical or verbal violence;

   ·Mother must not hit or hurt the child for any reason…[5]

   [5] Court book page 187.

7. On 1 April 2016, the applicants applied for the visas. 

8. Among other things, they claimed that upon any return to Iran in the reasonably foreseeable future, they would face a real chance of serious or significant harm on account of their status as Christian converts and failed asylum seekers.  They also claimed that they would face a real chance of serious or significant harm at the hands of the first applicant’s ex-husband (the second applicant’s father), and that the Iranian authorities would not protect them.

9. On 21 June 2016, a delegate of the Minister conducted an interview with the first applicant.  There was some correspondence between the delegate and the first applicant’s representative following this interview about the first applicant having the opportunity to respond to any further concerns that the delegate had in writing.  In an email dated

   
   

   16 November 2016, the applicant’s representative stated:

   It was my understanding from your verbal statement prior to the conclusion of our client’s interview that you would put your concerns in writing so that our client could respond appropriately.

   While I have identified some issues that arose at hearing, and have sought our client’s response, it would be highly prejudicial and procedurally unfair to our client and her daughter not to inform her of any other concerns so that she has a chance to respond to these.[6]

   [6] Court book page 241.

10. The first applicant submitted a further statement addressing the following issues raised during her interview:

    a)inconsistency about when she obtained her divorce in Iran;

    b)her challenges in seeking custody of the second applicant;

    c)her decision to leave Iran with the second applicant;

    d)DHS’ involvement with the second applicant; and

    e)her conversion to Christianity in Australia.

11. In relation to the conversion issue, the first applicant said:

    People can testify that I am a genuine convert.  I have a friend and his wife who are devoted Christians and involved with the church – we spend a lot of time together and they know me.

    I will provide letters from them as soon as I can.[7]

    [7] Court book page 247 at paragraphs [34] and [35].

12. On 16 November 2016, the applicants’ representatives provided a statement to the delegate in support of the applicants’ claims.  In that statement, the first applicant requested that “if there are any other concerns with my case that they be put in writing to my lawyer and that I be given more time to respond”.[8]

    [8] Court book page 247 at paragraph [39].

13. This submission was made after the applicants’ representative had received an email dated 2 November 2016 from the delegate in which the delegate said:

    A number of issues and concerns were raised with (the first applicant) at her protection visa interview on 21 June 2016.  I have determined that no further issues of concern arise from the applicant’s file that were not already raised with her at the interview in the presence of her representative.

    Thus, as there is nothing further of relevance to be put to the applicant, I invite the applicant to comment on issues raised at interview in a submission.[9]

    [9] Court book page 239.

14. Later on 16 November 2016, in support of the applicant’s claims regarding the risk of harm arising from the first applicant’s conversion to Christianity, the applicants’ representative emailed the delegate in the following terms:

    … in support of my client’s claims regarding Christianity, I am instructed that a reference can be provided for her by Fr. Reza – mobile: [phone].

    My client and her daughter also attend at Connect City Church 15 Perkins Avenue, Hoppers Crossing VIC 3029.[10]

    [10] Court book page 248.

15. On 17 November 2016, the delegate’s file note records indicate that he called Christ Church Cathedral, Darwin and spoke to Father Keith Ronald Joseph who confirmed that the first applicant had been baptised on 14 November 2013.[11]

    [11] Court book page 251.

16. Also on 17 November 2016, the delegate spoke with Reza Navidinejad (“Reza”) by telephone and his file note of that conversation recorded the following:

    … Reza said, speaking with her, if you want to ask me if she is a Christian, I would not be able to say ‘yes’.

    …

    She said she has been to church, but Reza has reservations about her faith.

    She has been to ‘our fellowship’ once in Geelong, and also in Werribee and several times at Hopper’s Crossing.  She has not been consistent in her attendance.

    …

    I asked for clarification about what issues to do with the faith… (the first applicant) had.

    Reza said he asked her if she believed in the divinity of Christ.  Reza said this is fundamental to Christian belief.  He said that she could not answer me directly, and he was waiting for this.  Reza said, ‘if I don’t know this my salvation is not complete.  I’m not sure she understands this part.’ He said saying you are Christian is easy but Christianity is a relationship with God, not just about going to church or being baptised.  He said he did not know if (the first applicant) had been baptised but his Fellowship did not baptise, as they are not an official church.

    He said that (the first applicant’s) salvation was a matter between herself and God. 

    However, he said that as a born again mature Christian, ‘I am not convinced that she understands’ the fundamental Christian belief that Christ is God and that this is necessary to be saved.

    Whether she is reading the bible or not ‘I do not know’ he said.

    He said he was periodically in contact with her and is trying to support and encourage her.[12]

    [12] Court book pages 252 to 253.

17. It is not disputed that the delegate did not put any of this content to the first applicant or her representative for comment.

18. On 22 November 2016, the delegate of the Minister refused to grant temporary visas to the applicants.  The delegate did not accept that the applicants would face a real chance of serious or significant harm as Christian converts or at the hands of the first applicant’s former husband if they returned to Iran in the reasonably foreseeable future.[13]

    [13] Court book pages 275 to 278.

19. Relying upon the information provided by Reza extracted above, the delegate did not accept that the applicants were genuine converts to Christianity.  On this basis, the delegate also did not accept that the first applicant would undertake any activity upon her return to Iran ‘associated with Christianity’. 

20. As this application fell within Part 7AA of the Migration Act 1958 (Cth) (“the Act”), the delegate’s decision was referred to the IAA on

    
    

    30 November 2016.[14]

    [14] Court book page 284.

21. On 16 December 2016, the first applicant wrote to the IAA stating that she was wanted to provide written submissions but was unable to do so within the 21 day time limit because:

    a)the timeframe was “unreasonable and arbitrary”;

    b)she required legal assistance but was unable to obtain free legal assistance within such a short period of time; and

    c)she needed to have the delegate’s decision translated and that the decision “makes many findings which I have only just heard for the first time”.[15]

    [15] Court book pages 298 to 299.

22. Also in that correspondence, the first applicant requested access to the documents before the IAA and asked for an oral hearing to present her case.  She stated, “I submit that the IAA would fall into error if it did not conduct a hearing, particularly if it makes adverse credibility findings.”[16] 

    [16] Court book pages 298 to 299.

23. Also on 16 December 2016, the first applicant made a Freedom of Information Request (“FOI request”) for all documents associated with her IAA application, and any documents held by the Department of Immigration and Border Protection.[17]

    [17] Court book pages 300 to 301.

24. On 20 December 2016, the IAA advised the first applicant that full access to all documents would be granted to her and her daughter pursuant to her FOI request.[18]

    [18] Court book pages 321 to 323.

The IAA’s reasons

1. On 17 March 2017, the IAA affirmed the decision of the delegate not to grant the applicants the visas.

2. The IAA noted that it had regard to the material referred to it under section 473CB of the Act. It further noted that no further information was obtained or received. It made reference to the correspondence from the first applicant dated 16 December 2016 discussed above. Notwithstanding the first applicant asking for more time to provide information to the IAA, the IAA noted that no further information was received from her. To the extent that the first applicant asked for an interview, the IAA noted that it was not obliged to invite the first applicant to an interview and that her request was not accepted.[19]

   [19] Court book page 327 at paragraph [4].

3. The IAA set out the applicants’ claims at paragraphs 6 and 7 and set out its factual findings at paragraphs 8 to 32.  Relevantly, the IAA stated that even after taking into account the first applicant’s mental health issues whilst in detention and the inherent difficulty people have in recalling specific events and dates, it concluded:

   …I have serious doubts in respect to the credibility of the first applicant’s claims for protection, specifically in relation to her relationship with her ex-husband, their separation and subsequent divorce, the second applicant’s custody arrangements and other court proceedings and their departure from Iran.[20]

   [20] Court book page 331 at paragraph [26].

4. After outlining the inconsistencies in the first applicant’s evidence and the conflict between her evidence and relevant country information, the IAA made the following findings:

   … I do not accept the first applicant ever faced any abuse from her ex-husband, that he took the second applicant away for a one year period, that she had to attend court for a year in order to obtain custody or that either applicants’ genuinely fear any harm from him or that he was one of the reasons they departed Iran. 

   ... I am not satisfied the first applicant’s claims that she will be physically attacked and killed by her ex-husband for taking the second applicant outside of Iran without his permission.  I am not satisfied the Iranian authorities will arrest her because she fled Iran with the second applicant.

   … I also do not accept that her ex-husband continues to threaten her family…[21]

   [21] Court book pages 331 to 332 at paragraphs [26] and [27].

5. In relation to the first applicant’s claimed conversion to Christianity, the IAA found:

   I accept the first applicant has been baptised and has on occasion attended church, however, I am not satisfied the first applicant is a committed Christian convert who practises Christianity.  Despite the lack of documentary evidence, I accept the second applicant was also baptised and has attended church on an irregular basis.  I am not satisfied the second applicant is a committed Christian.[22]

   [22] Court book page 333 at paragraph [32].

6. The IAA then considered the test for a ‘refugee’[23] and concluded that on the basis of the factual findings made, it was not satisfied that there was a risk of harm to either applicant on return to Iran either now or in the foreseeable future arising from the first applicant’s former husband or the first applicant’s father.[24]  The IAA considered country information in relation to how converts to Christianity are treated in Iran;[25] however, on the basis of the factual findings made about the applicants’ commitment to Christianity, the IAA was not satisfied that either applicant would face a fear of harm arising from their conversion on return to Iran either now or in the foreseeable future.[26]

   [23] Pursuant to section 5H(1) of the Migration Act 1958 (Cth).

   [24] Court book page 333 at paragraphs [33] to [36].

   [25] Court book page 334 at paragraphs [38] to [40].

   [26] Court book page 334 at paragraph [41].

7. The IAA also considered the applicants’ claim to fear harm as failed asylum seekers.  After considering relevant country information, the IAA concluded that it was not satisfied that there was a real chance of serious harm on this basis either now or in the foreseeable future.[27]

   [27] Court book page 335 at paragraphs [42] to [44].

8. Finally, the IAA considered the applicants’ claims individually and cumulatively and concluded that they did not meet the requirements of the definition of refugee in section 5H(1) or the requirements of section 36(2)(a) of the Act.[28]

   [28] Court book page 335 at paragraph [46].

9. The IAA also considered the complementary protection provisions and concluded that the applicants did not meet the requirements of section 36(2)(aa) of the Act.[29]

   [29] Court book pages 335 to 336 at paragraphs [47] to [54]. The IAA also considered section 36(2)(b)(i) and section 36(2)(c)(i) and concluded that the requirements of these provisions were not met.

10. On this basis, the IAA affirmed the decision of the delegate not to grant the applicants the visas.

Preliminary issue

1. This proceeding is somewhat unusual in light of the concession made by the first respondent on 8 October 2018. 

2. Counsel for the applicants submitted the following in response to this concession:

   a)the timing of the concession was of concern, as it was made at a very late stage in the proceedings, and after the applicants filed their written submissions and amended application;

   b)no explanation was proffered for the late filing of the concession;

   c)the applicants do not consent to remit the matter back to the IAA on the basis of the purported error conceded by the Minister; and

   d)the basis of the applicants’ refusal to consent involves both legal issues and practical difficulties. 

3. The legal issues are explored more fully below. 

4. As to the practical difficulties, it was submitted that the first applicant:

   is unable to agree positively to an argument that her child is conceivably at risk of future harm from her in the future. There are a number of things that might flow from that, in terms of how that might affect the relationship that she has with her child, and in terms of other matters concerning government instrumentalities and custody and the like…[30]

   [30] Transcript page 4 at lines 8 to 12.

5. It was further submitted on behalf of the applicants that if the court were satisfied that one or other of the grounds of review raised by the applicants was made out, the appropriate course would be for the court to make the orders sought, and conceded to be made on that basis.[31]  This submission was made on the basis that the Minister’s submissions had not addressed either of the two grounds raised by the applicants. 

   [31] Transcript page 5.

6. In response, it was submitted that the Minister had adopted this course to minimise costs where the Minister had identified “what the Minister considers to be a relevant ground of review”.[32]

   [32] Transcript page 12 at lines 44 to 45.

7. Counsel for the Minister then sought to provide some further submissions addressing the grounds of review raised by the applicant.  This was resisted to an extent by the applicants on the basis that those submissions could have been provided in a more timely manner by the Minister.

8. In circumstances where the Minister made a concession that the applicants’ costs ought to be met by the Minister and where the question of the basis on which a costs order might be made can ultimately be the subject of submissions, I was satisfied that there was no prejudice to the applicants by allowing the Minister to rely on submissions responding to the review grounds raised by the applicants. 

1. The applicants have raised what they say are two errors in the IAA’s decision making.  The court would have been assisted by submissions from the Minister in relation to these matters.   This is not a civil dispute in which it might be said that the failure by a party to file a response to a claim may give rise to the court entering default judgment against them.  Ultimately, in the context of a judicial review application, the court’s function is to determine whether the IAA has acted within its power.  I therefore gave leave to the Minister’s counsel to make oral submissions in relation to the two grounds of review raised by the applicants.  I also indicated that if the applicants required additional time to respond to anything put by the Minister, the court would accommodate the filing of post-hearing submissions.  Ultimately, this did not become necessary.[33]

   [33] Transcript page 16 at lines 38 to 40.

Ground one

1. The first ground of review is:

   The decision of the second respondent on 17 March 2017 is affected by jurisdictional error because it was legally unreasonable for the second respondent not to exercise, or to consider exercising, the power in s 473DD(3) of the Migration Act 1958 (Cth) to get new information from the applicants in response to certain adverse information on which the second respondent relied.

   Particulars

   In their application for temporary protection visas, the applicants relevantly claimed that they faced a real chance of serious or significant harm on any return to Iran on account of their conversion to Christianity.

   In support of that claim, the first applicant supplied contact details for a referee.  A delegate of the first respondent telephoned the referee and the referee gave adverse information about the genuineness of the first applicant’s conversion to Christianity.

   The adverse information from the referee was referred to and relied upon by both the first respondent’s delegate and the second respondent. Each of the first respondent’s delegate and the second respondent considered that that information would be the reason or part of the reason for the respective decision.

   The adverse information from the referee was also specifically about the first applicant and was not given by the applicants for the purposes of the protection visa application.

   Neither the first respondent’s delegate nor the second respondent invited the applicants to comment on the adverse information from the referee.

   The failure of the first respondent’s delegate to invite the applicants to comment on that information constituted a contravention of s 57(2) of the Act.

   The second respondent had the capacity to exercise the discretion conferred on it by s 473DC(3) to invite the applicants to give new information in response to the adverse information from the referee and, in the context of issuing that invitation, to give that adverse information or particulars of it to the applicants.

   The second respondent did not, however, exercise that power to get new information from the applicants in response to the adverse information from the referee.

   Nor did the second respondent consider the exercise of that power for those purposes.

   The second respondent nonetheless proceeded to treat the adverse information from the referee as the reason, or a part of the reason, for affirming the decision to refuse to grant temporary protection visas to the applicants.

   In those circumstances, and having regard to Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16… the second respondent transgressed the bounds of legal reasonableness in the conduct of its review under s 473DB of the Act.[34]

   [34] Applicant’s amended application filed 20 September 2018.

2. It was argued on behalf of the applicants that the discussion between the delegate and Reza contained information which was adverse to the applicants and ought to have been put to the first applicant for comment before the IAA made its decision.  This is particularly so given the IAA’s reliance on that information in making its conclusions about the first applicant’s conversion to Christianity.  In particular, counsel for the applicants pointed to the following observations in the IAA’s reasons:

   I have also taken into consideration the evidence provided by Reza, the contact provided by the first applicant in order to attest to her faith.  I note that Reza was unable to verify that the first applicant was a genuine Christian believer despite being baptised and attending church on a few occasions.  Reza’s evidence in respect to the first applicant’s attendance at church is also different to that provided by the first applicant.[35]

   [35] Court book page 333 at paragraph [32].

3. It was submitted that it was legally unreasonable for the IAA not to exercise or consider exercising its power under section 473DC(3) of the Act to obtain new information from the applicants in response to the adverse information from Reza.

4. The applicants relied upon the following comments in Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 (“Plaintiff M174”) in which Gageler, Keane and Nettle JJ said:

   Non-compliance with s 57… denies an applicant an opportunity to respond to prejudicial adverse information and to have any response included in the review material to be given to the Authority in a review under Pt 7AA.

   …

   … where relevant information in respect of which there has been non-compliance with s 57(2) was before the Minister or delegate at the time of making the decision to refuse to grant the protection visa … (which) would not itself be new information and could not become new information. Were the Authority in that scenario to consider that the information may be relevant to its own consideration on the review, however, the Authority would not lack power to fashion its procedure so as to bring the relevant information to the attention of the referred applicant and to invite the applicant to respond. The Authority would have the capacity to exercise the discretion conferred on it by s 473DC(3) to invite the referred applicant to give new information in response to the relevant information and, in the context of issuing that invitation, to give the relevant information or particulars of it to the referred applicant. And the Authority would risk transgressing the bounds of reasonableness in the conduct of the review under s 473DB were the Authority to go on to treat the information as the reason, or a part of the reason, for affirming the decision to refuse to grant the protection visa without first exercising the discretion conferred by s 473DC(3) to issue such an invitation.[36]

   [36] Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 at [47]-[48].

5. It was submitted that the IAA had the discretion to invite the applicant to give further information to respond to the adverse information provided by Reza and its failure to do so was legally unreasonable.

6. Whilst in Plaintiff M174, the High Court acknowledged that it might be legally unreasonable for the IAA not to consider exercising its discretionary power under section 473DC to remedy non-compliance with section 57 of the Act, it did not go so far as to say that it would always be legally unreasonable for it to do so.

7. It needs to be recalled that the role of the IAA on review is to determine for itself whether or not the applicant has satisfied the requirement for a protection visa to be issued.[37]Regard must be had to all of the circumstances of the case.  In this instance, the following circumstances are relevant:

   a)the first applicant was on notice of the information given by the referee to the delegate and the substance of the information given by Reza was set out in the delegate’s decision;[38]

   b)after the delegate’s decision was made, the first applicant made an FOI request on 16 December 2016 and all documents held by the IAA were released to the applicants on 20 December 2016;

   c)the applicants were provided with relevant information advising that they could provide a submission to the IAA explaining why they disagreed with the decision made or if any aspect of their claim was overlooked;[39] and

   d)notwithstanding this, the applicants did not make any submission to the IAA.

   [37] Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 at [90] per Gordon J.

   [38] Court book pages 273 to 274.

   [39] Court book pages 286 to 289.

8. In addition, Reza was put forward as a referee by the first applicant as someone who could give evidence in support of the first applicant’s conversion.  The information by Reza supported the evidence given by the first applicant to an extent.  The fact that Reza expressed some reservations about the first applicant’s genuineness regarding her conversion to Christianity was not a matter which would require further comment from the first applicant. 

9. Having regard to all of these circumstances, together with the nature of proceedings under Part 7AA which are aimed at primarily reviewing decisions made by a delegate largely ‘on the papers’, it was not legally unreasonable for the IAA not to exercise its power to invite the applicants to provide further information responding to the information provided by Reza. It was reasonable for the IAA to assume that if this was a matter that the first applicant wanted to address, she could have done so in a written submission to the IAA.

10. For these reasons, this ground is not made out.

Ground two

1. The second ground of review is:

   The decision made by the second respondent on 17 March 2017 is affected by jurisdictional error because the second respondent failed to take into account a relevant consideration that it was bound to take into account or otherwise constructively failed to exercise its jurisdiction under Part 7AA of the Act.

   Particulars

   The second respondent was obliged to consider the applicants’ claims to face a real chance of serious or significant harm in Iran in the reasonably foreseeable future, but failed to do so.

   In this regard, the first applicant claimed that she could not return to Iran because she would lose custody of her daughter, the second applicant, to her ex-husband, particularly once the second applicant turned seven years old.  The first applicant referred to Iranian laws and claimed that they were discriminatory against women or were applied in a discriminatory way against women.  Evidence before the second respondent also indicated that the first applicant suffered from depression and would require ongoing mental health support.

   The second respondent failed to make any finding about the prospect of the first applicant losing custody of the second applicant on any return to Iran.  That failure was compounded by the second respondent’s lack of consideration of any psychological harm that the first applicant might suffer on return to Iran if separated from her daughter, the second applicant.[40]

   [40] Applicant’s amended application filed 20 September 2018.

2. There are two aspects to this ground:

   a)firstly, that the IAA did not consider the applicants’ claims to fear harm in Iran in the reasonably foreseeable future arising from the fact that returned, the first applicant would lose custody of the second applicant to her ex-husband; and

   b)secondly, that the IAA did not consider the impact on the first applicant’s psychological wellbeing if she were to lose custody of the second applicant to her ex-husband.

3. Both these matters are premised on the fact that a claim was made that the first applicant would, if returned to Iran, lose custody of the second applicant to her ex-husband.

4. No issue is taken with the well settled principle that a failure to respond to a “substantial, clearly articulated basis of claim for a protection visa amounts to a constructive failure to exercise jurisdiction”[41] and that this principle equally applies to a proceeding before the IAA as it does to any other tribunal with review powers under the Act. Nor is any issue taken with the proposition that:

   In the aftermath of Dranichnikov, in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) ... the Full Court observed that there was an obligation to respond not only to an expressly made claim but also to one “squarely” raised on the material…[42]

   [41] DFC16 v Minister for Immigration and Border Protection [2018] FCAFC 56 at [46]; also see [6] per Siopis and Griffiths JJ.

   [42] DFC16 v Minister for Immigration and Border Protection [2018] FCAFC 56 at [49]; see also [7]-[9] per Siopis and Griffiths JJ.

5. In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 (“Applicant WAEE”), the Full Court of the Federal Court relevantly held:

   [46] It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons.  It may be that some evidence is irrelevant to the criteria and some contentions misconceived.  Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact … and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason.  The Tribunal is not a court.  It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications.  Each of the applications it decides is, of course, of great importance.  Some of its decisions may literally be life and death decisions for the applicant.  Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised ‘with an eye keenly attuned to error.’ Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law. 

   [47] The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons.  But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point.  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.  Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.[43]

   [43] Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 at [46]-[47].

6. It was submitted on behalf of the Minister that consideration of this claim was subsumed in the findings made by the IAA that the applicants would not face harm from the first applicant’s former husband and that he had not troubled them in the way claimed. 

7. Applying the principles arising from Applicant WAEE, there is much force to this submission.

8. The IAA noted that in her arrival interview, the first applicant stated as one of the reasons for departing Iran, that, among other things, “the second applicant was taken away from her when she was six months old”.[44] This is again referred to in paragraph 15 of the IAA’s reasons.

   [44] Court book page 329 at paragraph [12].

9. The IAA also recalled that in her second arrival interview, the first applicant stated that … “the second applicant will be taken away from her if she returns to Iran.”[45]

   [45] Court book page 329 at paragraph [13].

10. The IAA recorded that during the interview, the delegate raised the fact that under Iranian law, the “mother is the primary custodian of any children under the age of seven after which custody is automatically transferred to the father.”[46]

    [46] Court book page 330 at paragraph [18].

11. It is against these comments that the IAA’s findings that they did not “accept the first applicant ever faced any abuse from her ex-husband, that he took the second applicant away for a one year period, that she had to attend court for a year in order to obtain custody…”[47] must be viewed.

    [47] Court book page 331 at paragraph [26].

12. In addition, the IAA did not accept that “…the applicants were able to depart Iran without the permission of the first applicant’s ex-husband given they were married at the time of her departure.”[48] Further, the IAA was “not satisfied the Iranian authorities will arrest her because she fled Iran with the second applicant”.[49]

    [48] Court book page 331 at paragraph [26].

    [49] Court book pages 331 to 332 at paragraph [26].

13. I find that on a fair reading of the IAA’s reasons for decision, the first applicant’s claims that she would lose custody of the second applicant to her ex-husband if returned to Iran was subsumed in these findings.  The IAA did not accept that the first applicant’s former husband had engaged in any of the conduct alleged by the first applicant. 

14. It was therefore not necessary for the IAA to deal with any claim arising from fear of harm in the event that the applicants were returned to Iran as the factual premise on which this was based, namely that the first applicant’s ex-husband had previously sought custody of the second applicant, was not accepted by the IAA.

15. For these reasons, this ground is not made out.

The first respondent’s concession

1. Notwithstanding its opposition to the bases upon which the applicants seek judicial review of the IAA’s findings, the first respondent concedes, as set out in its written submissions, that the decision of the second respondent is affected by jurisdictional error in that the second respondent failed to consider a claim which emerged from the materials; namely, whether the second applicant was at real risk of suffering significant harm from the first applicant should they both be returned to Iran.

2. In making this concession, the first respondent pointed to the following factors:

   a)a court-imposed interim accommodation order removing the second applicant from the first applicant’s care, which imposed conditions including that the first applicant “must not expose the child to physical or verbal violence” and “must not hit or hurt the child for any reason”;[50]

   b)an Australian Federal Police National Police Certificate which recorded the first applicant’s appearance before the Darwin Court of Summary Jurisdiction on 28 November 2014 having been charged with “Assault A Person Under 16 Years By Adult”;[51]

   c)an IHMS Health Summary which indicated that the first applicant had been charged with physically assaulting the second applicant and that there had been concerns about the quality of the first applicant’s parenting skills;[52] and

   d)the first applicant’s evidence that she fled her country of origin with the second applicant to circumvent court orders that granted the first applicant visitation rights and not custody rights of the second applicant.

   [50] Court book pages 186 to 187.

   [51] Court book pages 235 to 237.

   [52] Court book page 238.

3. As stated above, the applicants do not consent to the orders they seek being made on this basis. 

4. As stated above, the IAA is required to consider not only claims expressly made but also claims which can be said to fairly arise from the material.

5. Whilst I am satisfied that the IAA considered the first applicant’s claims to fear harm arising from her former husband (the second applicant’s father) and the State if she were to return to Iran for the reasons set out above, the IAA has not dealt with any claim that the second applicant might experience harm from the first applicant if returned to Iran, given the matters set out at paragraph 72 above.  This is a claim which fairly arises from the material before the IAA in the NABE sense.

Conclusion

1. I therefore find that the IAA’s decision is affected by jurisdictional error.  The IAA’s decision ought to be set aside and the IAA be directed to reconsider the matter according to law.

2. The first respondent is to pay the applicants’ costs as assessed if not agreed between the parties.

I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of Judge Mercuri

Associate: 

Date:  24 May 2019