BRJ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 157
•18 November 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BRJ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 157
File number(s): SYG 958 of 2020 Judgment of: JUDGE DRIVER Date of judgment: 18 November 2021 Catchwords: MIGRATION – review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Iran as a stateless Faili Kurd – delegate accepting that the applicant is a stateless Faili Kurd – Authority decided that the applicant is a citizen of Iran – whether the Authority should have exercised its power under s 473DC of the Migration Act 1958 (Cth) considered – whether the Authority otherwise erred in its assessment of the evidence considered – jurisdictional error established Legislation: Migration Act 1958 (Cth), ss 357A, 422B, 473DA, 473DC Cases cited: ABT17 v Minister for Immigration and Border Protection (2020) 94 ALJR 928
AOJ18 v Minister for Home Affairs [2018] FCAFC 220
Attorney-General (NSW) v Quin (1990) 170 CLR 1
BCQ16 v Minister for Immigration and Border Protection [2018] FCA 365
BJK17 v Ministerfor Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCAFC 171
BVD17 v Minister for Immigration and Border Protection [2019] HCA 34
CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146
DAO v Minister for Immigration and Border Protection (2018) 258 FCR 175
DBE16 v Minister for Immigration and Border Protection [2017] FCA 94
DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12
DPI17 v Minister for Home Affairs [2019] FCAFC 43
DYK16 v Minister for Immigration and Border Protection [2018] FCAFC 222
EKN17 v Minister for Immigration and Border Protection [2019] FCA 1135
FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 29
Gupta v Minister for Immigration and Border Protection (2017) 255 FCR 486
Hands v Minister for Immigration and Border Protection (2018) 364 ALR 423
Minister for Immigration and Border Protection v CLV16 [2018] FCAFC 80
Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Singh v Minister for Home Affairs [2019] FCAFC 3
SZRHL v Minister for Immigration and Citizenship (now Minister for Immigration and Border Protection) (2013) 136 ALD 641
WACO v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 511
Division: Division 2 General Federal Law Number of paragraphs: 112 Date of hearing: 15 October 2021 Place: Sydney Counsel for the Applicant: Mr B Zipser Solicitor for the Applicant: Alkafaji Lawyers Pty Ltd Counsel for the Respondents: Mr G Johnson Solicitors for the Respondents: HWL Ebsworth ORDERS
SYG 958 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BRJ20
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE DRIVER
DATE OF ORDER:
18 NOVEMBER 2021
THE COURT ORDERS THAT:
1.A writ of certiorari shall issue, removing the record of the Immigration Assessment Authority decision made on 23 March 2020 into this Court for the purpose of quashing it.
2.A writ of mandamus shall issue, requiring the Immigration Assessment Authority to redetermine according to law the review referred to it.
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 DRIVER:
INTRODUCTION AND BACKGROUND
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 23 March 2020. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from the submissions of the applicant filed on 1 September 2021.
On 19 June 2013[1] the applicant arrived in Australian waters as an unauthorised maritime arrival.
[1] Court Book (CB) 152
On 1 July and 2 August 2013[2] the applicant participated in an “Irregular maritime arrival and induction interview”.[3] The applicant’s claims in that interview are at CB 11.
[2] CB 1
[3] CB 1-22
On 19 October 2016,[4] following the lifting of a statutory bar notified by letter dated 18 August 2016,[5] the applicant lodged an application for a protection visa.[6] The application was accompanied by:
(a)a statutory declaration of the applicant dated 19 October 2016 setting out her claims;[7]
(b)a document titled “Family Services Card” dated 31 July 1991;[8]
(c)a document titled “List of Family Members” dated 13 August 2010;[9]
(d)an undated document titled “Identification Card for Foreign Nationals” in the name of the applicant permitting her to “reside in [a named city] until valid up to 20 March 2010”[10] (the White Card);
(e)a document titled “Temporary Certificate” issued in the name of the applicant on 30 October 2008;[11]
(f)a document titled “For Foreign Nationals” issued in the name of the applicant dated 11 September 2002;[12] and
(g)an undated card in name of the applicant[13] (the Green Card).
[4] CB 81, 152
[5] CB 23
[6] CB 28-79
[7] CB 65-66
[8] English translation at CB 68, Persian original appears to be at CB 71-72; also described by the Authority as a “family card”
[9] English translation at CB 69, Persian original appears to be at CB 70
[10] English translation at CB 73; this appears to be the “White Card” referred to in the delegate’s decision at CB 154.4
[11] English translation at CB 74; Persian original at CB 75
[12] English translation at CB 76, Persian original at CB 77
[13] English translation at CB 78, Persian original appears to be at CB 79; this appears to be the “Green Card” referred to in the delegate’s decision at CB 154.3
On 2 August 2019, in the lead up to an interview with the delegate in the following week, the applicant’s agent provided additional documents to the Minister’s Department including:
(a)a document titled “Certificate” dated 30 December 2014;[14]
(b)a document titled “Certificate” dated 22 July 2015;[15]
(c)a letter “To whom it may concern” dated 13 November 2010 and attached table;[16]
(d)a letter from “MRDA” in support of claims by the applicant and her family;[17]
(e)a document in the name of “MRD” dated 19 March 2008;[18]
(f)a page of passport in the name of “MD” issued on 17 February 2010;[19]
(g)a document titled “Family Members List” dated 12 December 2009[20];
(h)photographs at CB 127-131 which appear to establish that the applicant presented the documents in the photographs (including the Family Members List at CB 125-126) to the Minister’s Department immediately upon arrival in Australian waters in June 2013;
(i)the Green Card;[21]
(j)the White Card.[22]
[14] English translation at CB 110, Persian original appears to be at CB 111
[15] English translation at CB 112, Persian original appears to be at CB 113
[16] English translation at CB 115-116, Persian original appears to be at CB 117-118
[17] The name has been anonymised; English translation at CB 119, Persian original at CB 120
[18] The name has been anonymised; English translation at CB 121, Persian original appears to be at CB 122
[19] The name has been anonymised; CB 123
[20] English translation at CB 124, Persian original appears to be at CB 125-126; this document appears to be 2009 version of the Family Members List prepared in 2010 at CB 69-70
[21] English translation at CB 132, Persian original appears to be at CB 133-135
[22] English translation at CB 136, Persian original appears to be at CB 137-140
On 7 August 2019[23] the applicant attended an interview with the delegate. As recorded by the delegate at CB 154.4:
The applicant ... provided the originals of [her] Green and White cards at interview. Scans of these are filed at ...
[23] CB 93
The scans appear to be the documents at CB 144-147. The delegate kept the originals until she made a decision. Then, apparently prompted by an enquiry from the Authority dated 19 February 2020,[24] on 24 February 2020 the delegate arranged for the originals to be posted back to the applicant.[25]
[24] CB 615
[25] CB 175, 182, 616
On 17 January 2020 the delegate made a decision refusing to grant the applicant a protection visa.[26] The delegate made the following favourable findings in relation to the applicant’s claims:
(a)her Green Card and White Card, in respect of which she presented the originals to the delegate, were genuine;[27]
(b)the applicant is a Faili Kurd;[28]
(c)the applicant has neither Iraqi citizenship[29] nor Iranian citizenship;[30]
(d)the applicant faced discrimination in Iran as a registered Faili Kurd;[31]
(e)the delegate accepted the agent’s summary of some country information matters in Iraq;[32]
(f)although the applicant was a registered Faili Kurd when she left Iran in 2010, if she “returns to Iran she will be an unregistered/undocumented Faili Kurd”;[33] and
(g)if the applicant is required to return to Iran, “unregistered or undocumented refugees have difficulty accessing many services”,[34] “the applicant may be discriminated against in employment for reasons related to her status as a refugee”,[35] the applicant “could be arrested and detained if found to be working illegally”[36] and “the applicant may be exposed to some forms of discrimination with regard to barriers to essential services”.[37]
[26] CB 152-174
[27] CB 154.6
[28] CB 156.1
[29] CB 156.8
[30] CB 158.2
[31] CB 164.5
[32] CB 161.2
[33] CB 163.8
[34] CB 165.2
[35] CB 165.5
[36] CB 165.7
[37] CB 165.8
Despite the favourable findings in the above paragraph, the delegate ultimately found:
(a)the discrimination the applicant would suffer on return to Iran as an unregistered and stateless Faili Kurd does not “ris[e] to the level of persecution” or “the level of serious harm”;[38] and
(b)although the applicant claimed a fear of harm on additional bases (eg treatment due to Kurdish race, political opinion, being a single woman in Iran and a failed asylum seeker), the delegate found that, on considering the applicant’s claims cumulatively, she “would not face a real chance of persecution now or in the foreseeable future”.[39]
[38] CB 166.1
[39] CB 172.3
Shortly afterwards the matter was referred to the Authority.[40]
[40] CB 185
On 11 February 2020[41] an agent for the applicant provided to the Authority a statutory declaration for the applicant dated 11 February 2020.[42] Unsurprisingly, the information in the statutory declaration focused on responding to findings of the delegate unfavourable to the applicant.
[41] CB 204
[42] CB 206-207
On 14 February 2020 the agent provided a submission to the Authority.[43] Again, unsurprisingly the agent focused on responding to the findings of the delegate unfavourable to the applicant.
[43] CB 210-215
On 24 February 2020 the Authority sent the Minister’s Department an email which, after stating that the Authority was referred three related cases (being the applicant and her two sisters), asked the Minister’s Department for copies of what the Authority considered were some documents missing from the files provided by the Minister’s Department to the Authority in the three cases.[44] In relation to the documents:
(a)one document was described as “copies of mother’s passport indicating entry and exit from Iraq”. This appears to be the document at CB 177-181. While the biodata pages from the mother’s two passports are referred to in the delegate’s decision at CB 153.8:
(i)it is not evident from the documents in the court book that the pages at CB 177-181 were provided by the applicant to the Minister’s Department in connection with her visa application, in contrast to the documents having been provided by one of the applicant’s two sisters to the Minister’s Department in connection with the sisters’ visa applications; and
(ii)although the Authority states that “the delegate refers to information before them regarding the entry and exit stamps of their mother from Iraq”, this does not appear to be in the delegate’s decision for the applicant.
Despite this, the Minister’s Department provided the documents to the Authority;[45] and
(b)another document was described as “Mother’s visa applications”.[46] It appears from the Authority’s decision[47] (and is confirmed in the transcript of the interview with the delegate) that the delegate introduced this document to the applicant at the interview and asked her some questions about the document.
[44] CB 621
[45] see eg CB 619
[46] CB 619; Supplementary Court Book (SCB) 1-27
[47] see CB 637-638 [34]-[36]
On 23 March 2020 the Authority made a decision affirming the decision of the delegate not to grant the applicant a protection visa.[48]
[48] CB 629-651
THE CURRENT PROCEEDINGS
These proceedings began with a show cause application filed on 23 April 2020. At the trial on 15 October 2021, I granted the applicant leave to rely upon an amended application which had been filed on 3 September 2021. There are five grounds in that application as amended:
1.The authority failed to exercise its power under s 473 DC of the Migration Act 1958 (Cth). The delegate accepted that the identity documents provided by the applicant were genuine and found that the applicant was [a] stateless person, while the authority rejected or placed no weight on the identity documents and found that the applicant was a citizen of Iran. The applicant was not invited to comment on this contention and the authority's concerns about the identity documents. The conclusion about the applicant's nationality was procedurally unfair. In the same time, it was legally unreasonable for the authority to reach into such conclusion without exercising its power under s 473DC to give the applicant an opportunity to comment on the authority's concerns.
2. The Immigration Assessment Authority (“the Authority”) made findings at [28] and [82] of its decision concerning a white card and green card provided by the applicant in support of her claims. The Authority fell into jurisdictional error in making these findings because:
a)There was a tension between the existence of the white card issued in 2009 (which the Authority declined to find was not genuine) and the Authority’s finding at [83] that the applicant was an Iranian citizen when she left Iran in 2013. The Authority’s failure to address and resolve the tension involves jurisdictional error.
b)On a fair reading of the Authority’s reasons for decision, the Authority was not confident that its finding that the applicant was an Iranian citizen at the time she left Iran in 2013 was correct. In the circumstances, the Authority was required to consider the possibility that the applicant was stateless at the time she departed Iran in 2013. Its failure to do so involved jurisdictional error.
c)The Authority found at [82] that it “was not satisfied” the white card and green card “contained reliable information”. This finding was inconsistent with, and not supported by, the Authority’s finding at [28] which was merely that it had “doubts … about whether the information contained in the applicant’s white and green cards is reliable”. The inconsistency gives rise to jurisdictional error.
d)The Authority stated at [27] that the white card and green card “did not appear to have any security features that would make it difficult to reproduce". Yet a cursory glance of copies of the cards in the Court Book indicate at least one security feature on each card, being a background pattern on the cards. The Authority's assertion that the two cards appear to have no security features was plainly wrong and perverse, giving rise to jurisdictional error.
3.The Authority at [30], in considering whether a family services card issued in 1991 was genuine and reliable, confused the mother's surname after she changed it from "PG" in November 2007 with her surname before she changed it to "PG" at an earlier time. The Authority also wrongly asserted that the applicant gave evidence that "her mother's original surname was PG" when the applicant did not give the evidence. The Authority’s finding relating to the mother’s surname involved jurisdictional error.
4.The Authority at [48] fell into jurisdictional error in placing “no weight” on the letter from the witness Mr … .
5. The Authority at [31]-[32] fell into jurisdictional error placing “no weight” on a travel document in the applicant’s name considered in those two paragraphs.
I received the following evidence:
(a)the court book filed on 10 July 2020 and a supplementary court book filed on 10 September 2020;
(b)the affidavit of Ali Alkafaji made on 9 February 2021 annexing extracts from a DFAT[49] Country Information Report on Iran published on 7 June 2018 and a later DFAT Country Information Report on Iran published on 14 April 2020;[50] and
(c)the affidavit of Archimedes Bongiovonni made on 1 September 2021 annexing a transcript of the interview of the applicant with the delegate.
[49] Department of Foreign Affairs and Trade
[50] subject to relevance and submissions
Both the applicant and the Minister filed pre-hearing written submissions and made oral submissions through their counsel at the trial.
CONSIDERATION
Applicant’s contentions
Ground 1 – s 473DC issue
The applicant provided many documents to the Minister’s Department concerning her identity and claimed stateless status. The Minister’s delegate accepted that the documents were genuine. The Authority, in contrast, considered that most of the documents were unreliable and placed no weight on them. Specifically:
(a)White Card and the Green Card:[51] the delegate found at CB 154.6 that the cards were genuine. The Authority stated at [28] that it had “doubts ... about whether the information contained in [the cards] is reliable”;
(b)family card:[52] the delegate found at CB 155.4 that the card is genuine. The Authority found at [30] it was not satisfied that the information in the card was reliable and placed no weight on it;
(c)temporary certificate:[53] the delegate found at CB 155.4 that the document is genuine. The Authority at [32] was “not satisfied the travel documents contain reliable information and I place no weight on them”;
(d)Family Members List dated 12 December 2009:[54] The delegate found at CB 155.4 that the document is genuine. The Authority at [33] was “not satisfied the contents of the Family Members List is reliable and I place no weight on it”;
(e)Letters (certificates) dated 30 December 2014[55] and 13 November 2010:[56] The delegate found at CB 155.4 that the letters are genuine. The Authority at [45] was “not satisfied the contents of the documents are reliable and I place no weight on them”; and
(f)letter dated 22 July 2015:[57] The delegate found at CB 155.4 that the letter is genuine. The Authority at [43] did “not accept the content of letter 5437 is reliable and place no weight on it” and “the purported copy of the original 5437 letter is either a fake document or was issued fraudulently”.
[51] CB 132-140
[52] CB 68
[53] CB 74
[54] CB 124-126
[55] CB 110-111
[56] CB 115-118
[57] CB 112
The Authority did not give the applicant an opportunity to comment on its concerns.
A review of the transcript of the applicant’s interview with the Minister delegate indicates that the delegate did not raise with the applicant most of the concerns held by the Authority. If the delegate or the Authority had raised those concerns with the applicant and given her an opportunity to respond, the applicant may have provided a persuasive explanation or additional evidence.
The applicant submits that if the rules of procedural fairness applied in the Authority, the Authority’s conduct concerning the documents would involve a breach of procedural fairness. In WACO v Minister for Immigration & Multicultural & Indigenous Affairs[58] an applicant provided documents to a tribunal after a hearing. The Tribunal rejected the documents as not genuine in its decision without giving the applicant an opportunity to comment on the Tribunal’s concerns. The Full Federal Court considered whether there was a denial of procedural fairness. The Full Federal Court stated the question as follows at [42]:
The question raised here is whether the tribunal was entitled to reject a document which on its face was genuine without giving the party which tendered it an opportunity to comment upon the genuineness of the document or to call evidence supporting its genuineness. An administrative tribunal undertaking an inquisitorial function is not obliged to put to an appellant an assertion of apparent falsity or unreliability in respect of each and every matter raised by the appellant for the appellant’s comment: Abebe v Commonwealth (1999) 197 CLR 510 at 608 at 76 per Callinan J. However, the tribunal will have a duty to raise clearly with the appellant the critical issues on which his or her application might depend. It is clear that the question whether the letters were genuine was a matter which went directly to the most critical issue in the case, namely the appellant’s relationship with the Ayatollah Shirazi. It was upon this relationship that the claim that the appellant had a well-founded fear of persecution for a convention reason rested.
[58] (2003) 131 FCR 511
Following a discussion, the Full Federal Court answered the question as follows at [53]-[54]:
In the present case and in Meadows the question whether the letters were genuine did not directly depend upon the evidence of the appellant. However, it can be said that a finding that the letters were forgeries could turn upon the credit of the appellant in so far as the finding is that the letters have been concocted by the appellant to advance his case. But if this is the case fairness would require that before a finding of forgery is made the person so accused be given the opportunity of answering it. A finding of forgery, just like a finding of fraud is not one that should lightly be made. Both involve serious allegations. Forgery, indeed, is a criminal offence.
Where the finding of fact made does not turn upon the credibility of the appellant and where there is nothing on the face of the documents themselves to alert the decision-maker that they are forgeries it is likewise inherently unfair that the decision-maker conclude that they are not genuine without affording the person affected by that conclusion the opportunity of dealing with it.
In addition, the Authority reversed other findings of the delegate without the applicant having an opportunity to comment. One finding of significance involved the applicant’s departure from Tehran airport using a passport with her name and photograph. The delegate accepted the applicant’s claim that the passport was fabricated, while the Authority did not. The particular point of concern of the Authority was not, if one reads the transcript, clearly raised and explored with the applicant at interview with the delegate. The closest discussion of the issue in the transcript was unclear.[59]
[59] see pages 44-45 of the transcript
Section 473DC of the Migration Act relevantly provides:
473DC Getting new information
(1)Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:
(a)were not before the Minister when the Minister made the decision under section 65; and
(b) the Authority considers may be relevant.
(2)The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(3)Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a) in writing; or
(b)at an interview, whether conducted in person, by telephone or in any other way.
Although the exercise of the Authority’s power under s 473DC is not conditioned by an obligation to accord procedural fairness, it is conditioned by an obligation of reasonableness. The Authority must act reasonably.
There have now been many Federal Court decisions which have considered an applicant’s complaint that the Authority’s failure to exercise, or consider exercising, its power under s 473DC to invite an applicant to comment was legally unreasonable.
In FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[60] at [59] the Full Federal Court distilled some principles from earlier decisions. One principle was:
(b)As a general proposition, Part 7AA contemplates that the Authority will evaluate for itself the material considered by the delegate and the Authority is not required to notify the referred applicant that it is considering taking a different view, which may be adverse to the referred applicant, of the material considered by the delegate …
[60] [2020] FCAFC 29
The Full Federal Court continued:
(c)However, circumstances may arise in which it would be legally unreasonable for the Authority to make a finding adverse to the applicant without exercising its powers to seek further information from the applicant.
The Full Federal Court then summarised two examples of earlier Full Federal Court decisions, in which it was held that the Authority’s failure to exercise its power under s 473DC was legally unreasonable, in the following terms:
An example is afforded by Minister for Immigration & Border Protection v CRY16 (2017) 253 FCR 475 (CRY16). In that case, the Authority had purported to determine the review on the basis that it was reasonable for the applicant to relocate to a particular part of his home country. However, that possibility had never been put to the applicant, before or during the review conducted by the Authority. The Full Court concluded that it was legally unreasonable for the Authority not to seek further information from the applicant in circumstances where the Authority knew that it did not have, but the applicant was likely to have, information on his particular circumstances and the impact upon him of relocation (CRY16 at [82]). CRY16 was a case where additional information (as to the reasonableness of relocation) was necessary in order to complete the review: DGZ16 at [70].
(d)Another example is afforded by DPI17 v Minister for Home Affairs [2019] FCAFC 43 (DPI17). In that case, the delegate had made a positive assessment of the applicant’s demeanour at the interview and the delegate’s acceptance of certain claims by the applicant was based primarily on the delegate’s assessment of the appellant’s demeanour (DPI17 at [46]). Further, during the course of the delegate’s interview with the applicant, the delegate indicated that certain discrepancies in the applicant’s evidence were not major and that she would not put a lot of weight on those discrepancies. In reliance upon those statements, the applicant did not address the inconsistencies in his post-interview submissions to the delegate. The Authority reviewed the decision and made various credibility findings adverse to the applicant based on the discrepancies in the evidence. The Full Court found that, in circumstances where the Authority must have been aware of the delegates positive assessment of the applicants demeanour in the interview, it was legally unreasonable for the Authority not to consider exercising its power under s 473DC to invite the applicant to give new information when it was minded to give weight to the discrepancies in the applicants evidence and come to a different conclusion on the claim (at [46] per Griffiths and Steward JJ and [58] per Mortimer J).
In BJK17 v Ministerfor Immigration, Citizenship, Migrant Services and Multicultural Affairs[61] at [44] the Full Federal Court described the issue as follows:
The issue, in the present case, is whether the Authority’s failure to get, or consider getting, “new information” was outside of its “decisional freedom”: Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158, 171 [62] (Allsop CJ, Griffiths and Wigney JJ). If the only course reasonably available to the Authority in the circumstances that confronted it was to get or consider getting new information from the Father, then its failure to do so will bespeak legal unreasonableness and its ultimate decision might be impugned as the product of jurisdictional error. The task, as Thawley J put it in CCQ17 (at [51]), is to:
…evaluate the failure to see whether it has the character of being legally unreasonable, perhaps in lacking a rational foundation or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking in common sense.
[61] [2019] FCAFC 171
To similar effect, in DYK16 v Minister for Immigration and Border Protection[62] at [67] the Full Federal Court stated:
… the fundamental question in considering whether the IAA has acted reasonably in deciding not to require the appellant for an interview and/or seek new information from him in respect of his claims of rape and imprisonment is whether there is an intelligible basis for that decision on the part of the IAA.
[62] [2018] FCAFC 222
In the present matter, the applicant contends that, although the Authority considered at [16] whether to exercise its power under s 473DC, its decision not to so exercise its power was legally unreasonable. Reasons include:
(a)the Authority reversed findings of the delegate concerning the authenticity and reliability of many documents concerning the applicant’s identity and claimed stateless status;
(b)the delegate did not raise with the applicant most of the concerns held by the Authority;
(c)if the applicant had an opportunity to address the Authority’s concerns, there is a real possibility that she could have provided persuasive explanations or additional evidence; and
(d)the Authority’s reasons for placing no weight on the documents was contestable and, in some cases, unpersuasive.
The applicant submits that the Authority’s failure to give the applicant an opportunity to comment on its concerns about the various documents was legally unreasonable.
Minister’s contentions
In the first ground the applicant asserts that the Authority failed unreasonably to exercise its power under s 473DC in relation to the Authority’s findings about the applicant’s identity and identity documents. The Minister submits that the argument is misguided, and should not be accepted.
It is well-established that the nature of a review under Part 7AA permits the Authority, conducting a de novo review, from reaching different conclusions on points of fact from those arrived at by the primary decision-maker, and that the fast track statutory regime of Part 7AA did not require the Authority to notify the referred applicant that it was considering taking a different view, adverse to the referred applicant, of the material considered by the delegate.[63] Whilst a later Full Federal Court warned of the need not to treat that statement from the Full Federal Court in DGZ16 as universally applicable in all contexts,[64] the present is said not to be a case where the Authority required additional information from the applicant that it lacked and knew she possessed,[65] or one where it differed from the delegate on credit findings without having had the benefit of observing the applicant answer questions.[66]
[63] DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12, [72]
[64] see DPI17 v Minister for Home Affairs [2019] FCAFC 43, [41]
[65] cfMinister for Immigration and Border Protection v CRY16 [2017] FCAFC 210
[66] DPI17, ABT17 v Minister for Immigration and Border Protection (2020) 94 ALJR 928
To that end, the applicant’s submission that the Authority made different findings of fact on certain matters compared with the delegate cannot, at least, of itself, lead to an obligation in the Authority to invite the applicant to comment, or to provide new information. The Authority did not “reverse” the delegate’s findings; it was conducting a de novo review, in which it was required in the performance of its statutory function to consider the matter afresh.
The applicant appears to rely in support of her argument for unreasonableness on the proposition that the Authority’s process was not fair in that she should have been given the opportunity to comment on the Authority forming a different view about her statelessness. However, as the High Court stated in BVD17 v Minister for Immigration and Border Protection,[67] procedural fairness analysis is not the “lens” through which the content of the procedural obligations imposed on the Authority in the conduct of a Part 7AA review is to be determined. Rather, the content of the Authority’s procedural fairness obligation under Part 7AA is extremely limited. The Authority is not required under the Migration Act to invite the applicant to give new information in response to concerns it has, or on the prospect that it might depart from the delegate’s factual findings. The applicant does, however, have a right to make submissions about these matters, if she had wished to.[68] The Part 7AA scheme restricts the common law principles of procedural fairness.[69] The common law procedural fairness exclusion in s 473DA(1) is broader than that in s 422B and s 357A that applies to the Administrative Appeals Tribunal (Tribunal).[70]
[67] [2019] HCA 34 at [34]
[68] Minister for Immigration and Border Protection v CLV16 [2018] FCAFC 80, [92]
[69] Section 473DA(1); BCQ16 v Minister for Immigration and Border Protection [2018] FCA 365, [71] (Thawley J)
[70] DBE16 v Minister for Immigration and Border Protection [2017] FCA 942, [62] (Barker J)
Whilst the applicant may contend that the unfairness in this case arose specifically from the Authority having determined factual questions adversely to her in circumstances where she was not on notice that such an approach would be taken by reason of the manner in which the delegate had resolved those questions, the contention presupposes that the Authority has a duty (in some cases at least) to forewarn the applicant that it may arrive at conclusions different from those of the delegate. That argument is said to be also contrary to authority.[71] The Authority’s statutory task is unlike that of the Tribunal that is required to conduct a hearing and invite an applicant to give evidence and present arguments about issues arising in relation to the decision under review.
[71] see DBE16, [65]
The Minister submits that, critically, it must not be overlooked that notwithstanding the above, the Authority at [16] expressly turned its mind to the question of whether it should get any new information because of the different conclusions it had reached from the delegate. The Authority disclosed an intelligible reason for not getting further information, being the fact that it considered that the applicant had had every opportunity to give all the information she wished to provide in support of her application.[72] The applicant does not challenge the Authority’s statement at [16]. The Authority having expressly considered exercising its discretionary power, and providing a reason for not exercising the power, is said to be another hurdle the ground must confront.
[72] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, [76]
Resolution
A significant feature of this case is that the Authority was burdened with an evidentiary gap in that the applicant’s Green and White Cards were handed up at the interview with the delegate and inspected by the delegate, who found them to be genuine. They were scanned and the scanned copies of the cards were available to the Authority. The Authority enquired of the delegate whether the cards had been subject to any technical examination and was told that they had not. They were returned to the applicant. The Authority thus had to rely upon the paper scanned copies of the cards rather than the originals. It follows that the Authority was at a disadvantage in considering the genuineness of the cards although it was entitled to draw its own conclusion in relation to the information contained on the cards.
As I pointed out to counsel for the Minister in oral argument, the information gap has some similarity with that in ABT17. This was not a case of the applicant’s demeanour being significant but the significance rests in the “demeanour” of the documents, that is the appearance of the cards in their original form.
Viewed in this light, the difference in reasoning as between the delegate and the Authority is stark.
In my view, this case falls into the narrow class of exceptional cases in which it was unreasonable for the Authority not to exercise its power under s 473DC of the Migration Act to obtain new information from the applicant. The obligation arose in relation to the numerous documents provided by the applicant to support her claim that she was a documented stateless Faili Kurd from Iran. The Authority chose to place no weight on any of the documents, even though they had been accepted by the delegate as genuine and properly supportive of the claim which was itself accepted by the delegate.
It is clear from [16] of the Authority’s reasons[73] that the Authority specifically considered exercising its power under s 473DC but decided not to do so after listening to the sound recording of the applicant’s protection visa interview with the delegate. The Authority reasoned that the applicant had been given ample opportunities to provide all the information she wished to provide in support of her application.
[73] CB 632
In my view, that reasoning underscores my conclusion that the Authority acted unreasonably. The applicant was questioned at length by the delegate about the experiences of herself and her family in Iran but the delegate barely touched on the various corroborative documents presented by the applicant. The Green and White Cards, which had been handed up in physical form, were briefly mentioned at T[74]27 and again at T30. There is some discussion of the picture of the applicant on the original Green Card at T31. There is some additional discussion of dates and photographs at T33-T39. The delegate did not express any doubt as to the genuineness of the documents or the accuracy of the information on them. The delegate accepted that the documents were genuine and that the applicant is a stateless Faili Kurd who would return to Iran undocumented. Given those positive conclusions by the delegate, there was no reason for the applicant to seek to introduce any new information to the Authority about the corroborative documents or, indeed, to make any submission about that aspect of the delegate’s decision.
[74] Transcript page reference
The Authority embarked on a detailed analysis of the corroborative documents because of its doubts about the genuineness of them and the accuracy of the information in them. None of those concerns had been put to the applicant previously.
The corroborative documents went to foundational elements of the applicant’s claims, namely her identity, her country of reference and her legal status in that country. As already noted, all of that evidence was accepted by the delegate. The applicant’s claimed legal status was rejected by the Authority. As I have already noted, the Authority was in an inferior position to the delegate in analysing the documents because it did not have an opportunity to examine the original Green and White Cards which had been provided to the delegate. This was, in my view, an evidentiary gap that burdened the Authority’s analysis. As already noted by the applicant, if the Green and White Cards were genuine, they proved that she was a stateless Faili Kurd at least for a significant period in Iran. That did not rule out the possibility that the applicant had at some point acquired Iranian nationality and that could have been explored with the applicant. It was not.
In my view, where the Authority seeks to overturn findings by a delegate on foundational elements of a protection claim, including:
(a)the identity of the applicant;
(b)the country of reference of the applicant; and
(c)the legal status of the applicant in that country
and where the Authority is in an inferior position to the delegate to consider those issues because of an evidentiary gap in the material before the Authority, it is unreasonable for the Authority not to exercise its power under s 473DC. It is precisely that kind of unusual circumstance that Parliament was intending to deal with in that provision. No amount of analysis, whether logical or not, by the Authority can overcome that unreasonableness where the power is not exercised.
I find that that the first ground has been established.
Ground 2 – issues concerning the White Card and the Green Card
Applicant’s contentions
The applicant provided to the delegate originals of the White Card and the Green Card.
The Authority at [28] expressed concerns about the cards. The Authority stated at [28] that it had “doubts ... about whether the information contained in the applicant’s white and green cards is reliable”.
The Authority, after considering other documents provided by the applicant and other matters, stated at [82]:
As outlined above in detail, I was not satisfied the documents provided by the applicant contained reliable information apart from the applicant’s mother’s passport indicating that her mother was born in Iraq.
The Authority did not expressly or implicitly find that the White Card or the Green Card were not genuine.
The applicant has a number of complaints to the Court about the Authority’s findings concerning the White Card and the Green Card.
First, the White Card was valid up to 20 March 2010. According to country information accepted by the Authority at [26], “white ... cards had to be renewed annually”. Thus, based on that country information, the White Card was issued by the Iranian government to the applicant in about March 2009. Iranian citizens are not issued with White Cards. It follows that, if the White Card was genuine, the applicant was not an Iranian citizen in March 2009.
The Authority found at [83] that “the applicant was an Iranian citizen when she left Iran”, which was on 31 May 2013.[75] The Authority also found at [81] that “the applicant’s narrative of her life in Iran is more consistent with a person who is an Iranian citizen”.
[75] CB 18.10
There is a tension between the Authority’s findings at [81] and [83] and the existence of the White Card. One possibility is that the White Card is valid, but the applicant obtained Iranian citizenship between the time of its issue in March 2009 and the time she departed Iran on 31 May 2013, although this possibility appears unlikely in light of provisions of the Iranian Civil Code referred to by the delegate at CB 157. Another possibility is that the White Card is not genuine and the applicant was an Iranian citizen in, and from a point in time prior to, March 2009. The Authority does not make a finding which resolves the tension. In the meantime, the unresolved tension indicates uncertainty by the Authority as to the correctness of its finding that the applicant was an Iranian citizen when she left Iran.
In EKN17 v Minister for Immigration and Border Protection[76] the Authority made a significant finding adverse to the applicant (that threat letters the applicant claimed his family received from a militant group were not genuine) without explaining some steps which led to the finding. After explaining at [76] what “the Authority’s reasons do not reveal”, the Federal Court continued at [77] that:
exposing the primary facts and inferences drawn from them and the reasoning process for reaching a conclusion focusses the decision-maker’s mind on, for example, whether there is a proper basis for the conclusion or whether it is in the nature of speculation or whether it is a conclusion which leave room for doubt and, if so, how much doubt…
[76] [2019] FCA 1135
The Federal Court also added:
(a)at [79] that the matters not addressed by the Authority “affect the reliability or certainty of the Authority’s conclusion that the letters were not genuine ...”;
(b)at [82] that “there was no consideration apparently given to the consistency between events accepted as truthful and the existence of the ‘threat letters’”; and
(c)at [85] that “there was no consideration by the Authority of the tension between” some findings made by the Authority and its rejection of the applicant’s evidence concerning the threat letters.
The Federal Court concluded at [89] that the Authority “did not undertake a ‘review’ of the kind required by Part 7AA” of the Migration Act.
Although the nature of the Authority’s findings and gaps in reasoning in EKN17 and the present matter are not on all fours, the general principle in EKN17 is said to apply to the present matter. In the present matter, as in EKN17, the Authority, by not addressing an unresolved tension concerning a significant matter, did not undertake the review of the kind required by Part 7AA.
Secondly, in Minister for Immigration and Multicultural Affairs v Rajalingam[77] Sackville J stated at [60], [62], [63] and [67]:
[60] It follows from the observations of the High Court in Wu Shan Liang and Guo that there are circumstances in which the RRT must take into account the possibility that alleged past events occurred even though it finds that those events probably did not occur ... The RRT must not foreclose reasonable speculation about the chances of the hypothetical future event occurring.
[62] In this context, it is not always possible for the decision-maker to be satisfied as to whether alleged past events have occurred with certainty or even confidence. When the RRT is uncertain as to whether an alleged event occurred, or finds that, although the probabilities are against it, the event might have occurred, it may be necessary to take into account the possibility that the event took place in considering the ultimate question. Depending on the significance of the alleged event to the ultimate question, a failure to consider the possibility that it occurred might constitute a failure to undertake the required reasonable speculation in deciding whether there is a “real substantial basis” for the applicant's claimed fear of persecution...
[63] ... The reasonable speculation in which the decision-maker must engage may require him or her to take account of the chance that past events might have occurred, even though the decision-maker thinks that they probably did not. In the language of s 476(1)(e) of the Migration Act, a failure to do so may constitute “an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found”.
[67] In general, however, the question of whether the RRT should have considered the possibility that its findings of fact might not have been correct is to be determined by reference to the RRT's own reasons. If a fair reading of the reasons as a whole shows that the RRT itself had “no real doubt” (to use the language in Guo) that claimed events had not occurred, there is no warrant for holding that it should have considered the possibility that its findings were wrong. Reasonable speculation as to whether the applicant had a well-founded fear of persecution does not require a possibility inconsistent with the RRT's own findings to be pursued ... Only if a fair reading of the reasons allows the conclusion that the RRT had a real doubt that its findings on material questions of fact were correct, might error be revealed by the RRT's failure to take account of the possibility that the alleged events might have occurred ... If the fair reading allows of such a conclusion, the failure to consider the possibilities might demonstrate that the RRT had not undertaken the required speculation about the chances of future persecution.
[77] (1999) 93 FCR 220
The applicant submits that the Authority’s reasons indicate that it was not confident that its finding that the applicant was an Iranian citizen at the time she departed Iran in 2013 was correct. For example:
(a)the Authority at [28] stated that some matters “rais[e] doubts ... about whether the information contained in the applicant’s white and green cards is reliable”;
(b)the Authority was “not satisfied” that various other documents provided by the applicant to the Minister’s Department, which were inconsistent with the applicant being an Iranian citizen, were reliable. There is a distinction between a decision-maker making a positive adverse finding against an applicant about a matter (eg “I am satisfied that this document is not genuine”) and a decision-maker not being satisfied about a matter;
(c)the Authority did not make an adverse credibility finding against the applicant; and
(d)the Authority stated at [81] that “the applicant’s narrative of her life in Iran is more consistent with a person who is an Iranian citizen” (emphasis added). The term “more consistent” indicates doubts.
In the circumstances, the applicant contends that the Authority was required to consider the possibility that the applicant was stateless at the time she departed Iran in 2013.
Thirdly, the Authority at [28] stated that it had “doubts ... about whether the information contained in the” White Card and Green Card is reliable, but the Authority at [82] then stated:
As outlined above in detail, I was not satisfied the documents provided by the applicant contained reliable information ... Country information indicates that documents are easy to get in Iran through bribery and connections ...
Where a decision-maker must decide whether a document is genuine or whether information in a document is reliable, there is a clear difference in meaning and effect between:
(a)an observation by the decision-maker that he or she “has doubts” as to whether the document is genuine or the information in the document is reliable; and
(b)a finding by the decision-maker that he or she is not satisfied that the document is genuine or the information in the document is reliable.
The applicant contends that the finding by the Authority at [82], to the extent that it covered the White Card, was inconsistent with and not supported by the Authority’s findings concerning the White Card at [28] or in subsequent paragraphs.
To put the point shortly, the Authority stated at [28] that it had “doubts ... about whether the information contained in the applicant’s white and green cards is reliable”, and then the Authority at [82] jumped to a conclusion of non-satisfaction that the White and Green Cards contained reliable information, without explaining the steps by which it moved from a position of uncertainty to a positive state of non-satisfaction. Taking into account the Authority’s obligations to set out reasons for its decision, the Authority at [82] is said to have misunderstood its earlier finding at [28], since the Authority at [82] stated that it had previously found that it was not satisfied that the Green Card and White Card contained reliable information, when the Authority did not in fact make that finding. This is said to be a jurisdictional error.
Fourthly, the Authority stated at [27] that the White Card and the Green Card “did not appear to have any security features that would make it difficult to reproduce”. This was one matter on which the Authority relied to find at [28] that it had “doubts ... about whether the information contained in [the two cards] is reliable”. Yet, first, the Authority only had copies of the cards and not the originals. Secondly, a cursory glance at the cards at CB 138 and 145 indicates at least one security feature on each card, being a background pattern on the cards. The Authority’s assertion that the two cards “appear to have no security features” is said to be plainly wrong and perverse. The Authority’s finding is said to be irrational in a manner involving jurisdictional error.
A reasoning process may be irrational or illogical in a manner involving jurisdictional error:
(a)“if the decision to which the decision maker came was simply not open on the evidence”: Minister for Immigration and Citizenship v SZMDS[78] at [135];
(b)“if there is no logical connection between the evidence and the inferences or conclusions drawn”;[79]
(c)if there is no “rational or probative evidence to support” the finding, or the finding is “made without any probative foundation” or “without any material to found” it;[80]
(d)if the finding of fact is “simply incapable of being reasonably made by any decision‑maker, there being no evidence at all to support [the finding] and all evidence to the contrary to a reasonable decision-maker”;[81]
(e)if the finding of fact lacks an evident and intelligible justification;[82]
(f)if there was no evidence to support a necessary step or element for the finding of fact;[83] or
(g)if the finding of fact is not “based upon facts having logical and probative weight”.[84]
[78] (2010) 240 CLR 611
[79] SZMDS at [135]
[80] Hands v Minister for Immigration and Border Protection (2018) 364 ALR 423 at [44]-[47]; DAO v Minister for Immigration and Border Protection (2018) 258 FCR 175 at [30(2)]; AOJ18 v Minister for Home Affairs [2018] FCAFC 220 at [31]
[81] Hands at [45]
[82] Gupta v Minister for Immigration and Border Protection (2017) 255 FCR 486 at [48]; Singh v Minister for Home Affairs [2019] FCAFC 3 at [61]
[83] FSG17 at [61]-[63]
[84] CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 at [41]
Minister’s contentions
In the second ground the applicant contends that the Authority fell into error in its factual findings about the applicant’s White Card and Green Card. The Authority gave detailed reasons at [22]-[28] for its concerns about the genuineness of the White and Green Cards, by reference to the applicant’s evidence given to the delegate during interview, and country information.
The applicant’s first contention is that there was a “tension” between the existence of the White Card and the Authority’s finding that the applicant was an Iranian citizen when she left Iran in 2013. However, the Minister submits that there was no relevant tension. The Authority was clear in its reasons, which extended beyond its consideration of the problems with the White Card, as to why it was satisfied the applicant was an Iranian citizen when she departed Iran in 2013. These included that the Authority was not satisfied:
(a)as to the reliability of the content of the “family card” at [30];
(b)as to the reliability of the travel document dated 30 October 2008 at [31]-[32];
(c)as to the reliability of the contents of the Family Members List at [33];
(d)as to the reliability of other documents provided in support of the applicant’s claims at [43], [48];
(e)that the applicant identified as a Faili Kurd at [62]; and
(f)that the applicant departed Iran on a false passport at [73]-[75].
The Authority did make adverse findings against the applicant about her evidence, her documents, and ultimately, her claim to have been stateless. It found at [81] that the applicant was a well-educated, well-resourced person whose life narrative was not consistent with her claim to be a stateless Faili Kurd.
Properly construed, the applicant’s arguments under the second ground are said to fall away.
First, there was no tension between the applicant’s findings about the White Card and her citizenship status in 2013. Plainly, the Authority was not satisfied the White Card was genuine.
Secondly, the applicant’s reliance on the principle explained by Sackville J in Rajalingam has no application here, because the Authority was not uncertain or unconfident in its findings. The Authority gave detailed reasons for its firm conclusion that the applicant was not a stateless Faili Kurd.
Thirdly, the applicant’s attempt to establish a difference between a view expressed that the decision-maker has doubts about a particular matter, and a finding of non-satisfaction of reliability in a document, or in the genuineness of a document, does not demonstrate error here. To the extent the Authority was required in this case to set out its “steps” on the way to its conclusion at [82], without being exhaustive, the findings summarised above at [72] provide those steps. The Authority’s conclusion at [82] was not wholly based upon its expressed concerns about the White Card. The argument tends to engage the Court in a review of the Authority’s fact-finding, which is beyond the Court’s jurisdiction.
Fourthly, the applicant takes issue with the Authority’s findings at [27] and [28] about the absence of security features on the White and Green Cards. However, the Authority did not say that the cards did not have any (apparent) security features, rather it observed (from a copy of the cards available to it) that the cards did not “appear” to have any security features “that would make it difficult to reproduce”. Whether a counterfeiter might have been able to fraudulently produce a card with the background pattern as shown at CB 138 and 145 is not a matter for the Court to be satisfied about; it was for the Authority to consider on the evidence before it whether the cards might possibly have been fraudulently produced. The Minister submits that the Authority’s findings were open to it, but in any event, were matters for it to determine within its jurisdiction.
Resolution
The applicant’s arguments in respect of this ground support my finding in relation to Ground 1 but do not independently establish jurisdictional error. The Authority had legitimate concerns about the applicant’s corroborative documents supporting her claim to be a stateless Faili Kurd and was entitled to explore those concerns. Its analysis, based upon the material before it, was not irrational but, as I have already noted, was hampered by its failure to invite information from the applicant under s 473DC. In the event that the Authority exercised that power and the applicant failed to address the Authority’s concerns, the conclusions reached by the Authority the subject of Ground 2 would have been open to it.
Ground 3 – issues concerning the applicant’s mother’s surname
Applicant’s contentions
The evidence before the Minister’s Department and the Authority indicates that, in relation to the surname of the applicant’s mother:
(a)up to a point in time, the mother’s surname was “Jad”;[85]
(b)On a date not disclosed in the materials before the Authority, the mother changed her surname from “Jad” to “PG”;[86]
(c)in November 2007[87] the mother changed her surname again from “PG” to “Jab”;[88]
[85] The name has been anonymised; see CB 68 (“Family Services Card” issued in 1991)
[86] The name has been anonymised; see SCB 28
[87] SCB 28
[88] The name has been anonymised; see also CB 142 (passport issued in 2008), CB 110 (letter dated 30 December 2014)
The Authority at [30], in considering whether the “Family Services Card” issued in 1991 was genuine and reliable, is said to have confused the surnames “Jad” and “Jab”. The Authority stated that there was an “inconsistency” between:
(a)evidence by the applicant that in 2007 the mother changed her surname from “PG” to the surname in the Family Services Card; and
(b)the date of issue of the Family Services Card in 1991.
Based on this inconsistency, the Authority was “not satisfied the information contained in the family card is reliable and I place no weight on it”.
However, it is said to be clear that the Authority misunderstood the evidence before it concerning the mother’s surname as explained above, since the surname in the Family
Services Card is not the surname to which the mother changed her name in 2007.
The Authority at [30] added that the applicant stated in her protection visa interview that “her mother’s original surname was PG”. The applicant did not give evidence that her mother was born with the family name PG, or that this was her surname in 1991. Again, the Authority is said to have misunderstood the evidence before it.
Where a decision-maker misunderstands evidence before it and this adversely affects the decision-maker’s assessment of the applicant’s claims, this is a jurisdictional error.[89]
[89] see for example SZRHL v Minister for Immigration and Citizenship (now Minister for Immigration and Border Protection) (2013) 136 ALD 641 at [34]-[35]
In considering this issue, a lingering factor is that, despite the evidence that the mother changed her surname from “Jad” to “PG” and then to “Jab”, all by November 2007, the family members lists issued by the Bureau of Non-Citizens and Foreign Nationals in 2009 and the General Department for Foreign Nationals and Immigrants in 2010 continued to use the surname “Jad” for the mother. The applicant submits that there is likely to be an explanation for this. For example, it is not uncommon that one government department is not aware of information changes in another government department, or some government departments prefer to use the same surnames in a series of documents over time.
Resolution
I prefer and adopt the Minister’s submissions concerning this ground.
In the third ground the applicant challenges a factual finding by the Authority at [30] regarding the reliability of the “family card” the applicant had provided. The contention advanced does not rise to a level of jurisdictional error, even if the Authority was mistaken on a factual matter. It is well-established that mere factual error does not give rise to jurisdictional error.[90]
[90] Attorney-General (NSW) v Quin (1990) 170 CLR 1
In any event, the crucial issue was that the Authority had understood the applicant to have said that her mother’s “original” name was PG, and that it was not changed until 2007 (when it was changed to “J”[91]). It is therefore unclear what the relevance is of what occurred after the issue of the Family Services Card in 1991.
[91] Which could have been Jad or Jab
The transcript on which the applicant relies, attached to the affidavit of Mr Bongiovonni made on 1 September 2021, indicates that the applicant gave an answer to the Authority’s question of whether her mother was known by another name.[92] The applicant’s evidence was that the mother’s name changed when she acquired Iranian citizenship, but where the applicant appears to say what the name was before this, the transcript is “unintelligible”. It would appear, reading this evidence with [30] of the Authority’s reasons, that the applicant here informed the delegate that the mother’s name prior to her obtaining Iranian citizenship, was “PG”.
[92] T23
There was a clear evidential basis for the Authority’s findings in relation to the Family Services Card. This is not an exceptional case where errant fact finding gives rise to jurisdictional error.
Ground 4 – issues relating to the evidence from Mr MRDA[93]
[93] Referred to by the Authority as Mr DA
Applicant’s contentions
The applicant provided to the Minister’s Department a letter from Mr DA,[94] as well as copies of two identification documents for the author of the letter, one of which is the biodata page from his passport issued in 2020. The combination of documents, on their face, provides evidence in support of the applicant’s claim that she was stateless in Iran. However, the Authority discounted the evidence with the following reasoning process at [48]:
The purported identification card ... was of such poor quality that it was impossible for me to identify the person in the picture was the same person in the bio-page of Mr DA’s passport. I have no details about when Mr DA retired or how many times he was acquainted with the applicant and/or her family. Based on the evidence before me, I am not satisfied Mr DA worked in the Bureau or that he was acquainted with the applicant and her family as claimed. I am not satisfied that the content of the letter is reliable and I place no weight on it.
[94] CB 119
Some observations about this reasoning process are as follows:
(a)first, the Authority effectively found that the letter was fabricated;
(b)secondly, the Authority provided two reasons for the finding of fabrication. One reason was that one of the identity documents was of poor quality. Yet the other identity document was not of poor quality and the Authority appeared to accept it was genuine. The second reason was that the Authority had “no details about when Mr DA retired or how many times he was acquainted with the applicant and/or her family”. However, an absence of details in the letter does not, without more, mean the letter is fabricated; and
(c)thirdly, the applicant provided the biodata page from Mr DA’s passport. The fact that the applicant had this document supports a conclusion that Mr DA’s family was acquainted with the applicant or one of her family members.
The applicant contends that, taking into account the above matters, the Authority’s finding that it would place no weight on the letter was perverse and irrational in a manner which involved jurisdictional error.
The applicant anticipates a proposition by the Minister that, “based on the evidence before me” means the totality of the evidence. If the Authority had made adverse credibility findings about the applicant up to this part of its decision, the adverse credibility findings could rationally be taken into account in placing limited weight on otherwise supportive corroborative evidence, but the Authority did not make adverse credibility findings against the applicant. The Authority merely placed “no weight” on a number of identity documents provided by the applicant to the Minister’s Department.
Resolution
I prefer the Minister’s submissions also in relation to this ground.
The applicant submits in the fourth ground that the Authority erred in placing no weight on the letter of Mr DA, at [48].[95] The applicant submits that the Authority’s findings in respect of Mr DA’s evidence was irrational because it found, in essence, that the letter was fabricated. The argument is misconceived. The Authority’s conclusion was that it was not satisfied that the content of the letter was reliable. The reason for this was because it could not satisfy itself as to Mr DA’s identity based on problems it identified with the identity documents provided to prove who he was. The Authority also could not confirm Mr DA’s acquaintance with the family.
[95] It appears to be assumed that Mr DA is the same person as Mr MRDA, Mr MRD and Mr MD
These findings were not findings of fabrication. The Authority did not need to find the letter was fabricated in order not to give it weight. The Authority held (valid) concerns about who Mr DA was, and therefore about the quality of the evidence he purported to give. No error is made out.
Ground 5 – issues concerning the travel document
Applicant’s contentions
The Authority at [31]-[32] considered the travel document at CB 74. The travel document, on its face, was issued on 30 October 2008 and permitted the applicant to travel outside the applicant’s home city between 30 October 2008 and 27 April 2009.
The Authority at [32] found that “in the context of inconsistent information, I am not satisfied the travel documents contain reliable information and I place no weight on it”. The “inconsistent information” was that, according to the Authority, the applicant told the delegate that her “white card[96] allowed her to travel”.
[96] together with her Green Card
However, a review of the transcript of the applicant’s interview with the delegate indicates that the applicant did not say that her White Card allowed her to travel, or that she used her White Card to travel. At T27.6 to T31.10 the delegate discussed with the applicant her Green Card and White Card. At page 30.4 the delegate asked:
What can you receive with the green card or the white card ... what does a green card or the white card entitle you to?
The applicant responded:
And even though if we travel we have to show the green card ... so if we travel we have to show them the green card ... And we have to have that travel document or permit to travel to … from where to ... how long gonna stay there, so it should be all in this permit.
In relation to the applicant’s response, she submits that first, the response was limited to the Green Card, and did not include the White Card. Secondly, even if one reads the applicant’s response as including the White Card, the applicant did not say that the Green Card (or
White Card) entitled or allowed her to travel. She said that she needed to have the Green Card (or White Card) in her possession when she travelled, but it was the travel permit which entitled or allowed her to travel.
The applicant submits that it follows that the Authority misunderstood the applicant’s evidence, and then rejected her claims based on its misunderstanding. This is said to be a jurisdictional error, as Logan J stated in SZRHL at [34]-[35]:
As I opined by reference to earlier authority in SZLGP v Minister for Immigration and Citizenship (2009) 181 FCR 113; 112 ALD 501; [2009] FCA 1470 at [37], “the adjectives ‘ignorant’, ‘arbitrary’ and ‘perverse’ aptly apply to a process of reasoning which damns a man’s credibility by reference, materially, to a false factual premise”. That is this case. The process of reasoning that led to the damning of the first appellant’s credibility by the tribunal was premised upon the basis that a reference to a “false case” laid against him in the courts of Bangladesh had only emerged belatedly, as opposed to when the visa application was made. That premise was not peripheral.
One way of characterising the tribunal’s reasoning as to the first appellant’s absence of credibility is that it, based as it is upon a false premise, it is illogical or irrational. That is the alternative way in which the appellants grounded their challenge in the court below to the tribunal’s decision and, in this court, put their case that the Federal Magistrates Court had fallen into error. A decision so based is not “within the range of possible acceptable outcomes”: Li at [105].
The applicant submits that the DFAT country information report on Iran published in April 2020 states at [3.166]:
While Amayesh cardholders can move freely within the province in which they are registered, they are subject to restrictions regarding their ability to relocate to other parts of Iran. Refugees are prohibited from residing in specified areas of the country, including Gilan and Mazandaran provinces along Iran’s Caspian Coast. Local sources told DFAT that, in practice, Amayesh cardholders often ignore these restrictions, but, where they do, would find it difficult to find formal employment.
Although this report was not before the Authority, the paragraph is said to strongly suggest that, if the Authority had searched for county information on the point at the time it prepared its decision in March 2020, country information would have confirmed the applicant’s claim that White Card holders needed government permission to travel out of their province.
Paragraph 5.18 of the DFAT report on Iran published in June 2018 (which was before the Authority) stated:[97]
Article 33 of the Constitution states that no one can be banished from their place of residence, prevented from living in the place of their choice, or compelled to reside in a given locality, except in cases provided by law. In practice, the government has placed some restrictions on internal movement. Certain groups, including registered refugees and individuals subject to security monitoring, are prevented from travelling to certain provinces without permission.
[97] applicant’s emphasis retained
The italicised information is said to be partially consistent with the applicant’s claim that White Card holders need travel permits for inter-province travel.
Resolution
Once again, I prefer and adopt the submissions of the Minister concerning this ground.
In the fifth ground the applicant challenges the Authority’s finding at [31]-[32] concerning a travel document. For reasons the Authority outlined in some detail, it found that it was not satisfied that the travel document dated 30 October 2008 issued from the Ministry of Interior, General Department for Foreign Nationals and Immigrants Affairs contained reliable information. The applicant submits that there was no inconsistency in her evidence, upon which the Authority appeared to rely, concerning her need for a White Card in order to travel. However, the Authority did not misstate the applicant’s evidence, and did not erroneously state, as the applicant submits, that the Green and White Card allowed the applicant to travel. As the Authority stated at [31], the applicant told the delegate that the White Card was just for identification purposes, but that does not mean it was not used to allow her to travel. That is consistent with the applicant’s evidence to the delegate that when the family travelled they had to “show the green card”. Further, on page 28 of the transcript, the interpreter said that:
She said it in a …Iran … in Persian as kind of a Travel document allowing us just to travel from city to city …
There was evidence before the Authority upon which basis it was entitled to draw the conclusions of fact that it did about the travel document. The applicant’s reliance on country information not before the Authority not only does not advance her argument, but is irrelevant to discerning jurisdictional error in the Authority’s reasons by reference to the material that was before it.
CONCLUSION
The applicant has succeeded in establishing that the decision of the Authority is affected by jurisdictional error. I will grant relief in the form of the constitutional writs of certiorari and mandamus.
I will hear the parties as to costs.
I certify that the preceding one hundred and twelve (112) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver. Associate:
Dated: 18 November 2021
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