BTQ19 v Minister for Immigration
[2020] FCCA 1539
•21 August 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BTQ19 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1539 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Iran – applicant disbelieved in part and other fears found not to be well-founded – whether the Authority erred in rejecting new information considered – whether the Authority overlooked an element or integer of the applicant’s claims considered – no jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.5, 5J, 65, 473CA, 473CB, 473DA, 473DB, 473DC, 473DD, 473FB, 473GA, 473GB, 477 |
| Cases cited: Appellant 395/2002 v Minister for Immigration (2003) 216 CLR 473 AQN15 v Minister for Immigration & Anor [2016] FCCA 58 AUH17 v Minister for Immigration [2018] FCA 388 COE16 v Minister for Immigration [2019] FCA 1370 DHV16 v Minister for Immigration & Anor [2018] FCCA 349 Htun v Minister for Immigration (2001) 194 ALR 244 Minister for Immigration v SZMDS (2010) 240 CLR 611 NABE v Minister for Immigration(No 2) [2004] FCAFC 263 Plaintiff M174/2016 v Minister for Immigration (2018) 264 CLR 217 Randhawa v Minister for Immigration (1994) 52 FCR 437 Singh v Minister for Home Affairs [2019] FCAFC 3 SZTFI v Minister for Immigration [2015] FCA 322 WZAQU v Minister for Immigration [2013] FCA 327 WZAVW v Minister for Immigration [2016] FCA 760 |
| Applicant: | BTQ19 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 1041 of 2019 |
| Judgment of: | Judge Driver |
| Hearing date: | 3 June 2020 |
| Date of last submissions: | 10 July 2020 |
| Delivered at: | Sydney |
| Delivered on: | 21 August 2020 |
REPRESENTATION
The Applicant appeared in person by telephone
| Counsel for the Respondents: | Mr B D Kaplan |
| Solicitors for the Respondents: | HWL Ebsworth |
ORDERS
The applications filed on 30 April 2019 and 13 July 2020 are dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1041 of 2019
| BTQ19 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 18 March 2019. 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 initial submissions filed on behalf of the Minister on 7 June 2019.
The applicant, a male who claims to be an Iranian national, arrived in Australia on 13 October 2012. He applied for a Safe Haven Enterprise visa on 10 May 2016 (SHEV).[1] The SHEV application did not contain any claims for protection, apart from an incomplete answer to one question.
[1] Court Book (CB) 19
On 17 May 2018, the applicant's representative emailed the Minister’s Department, attaching a statement of the applicant's claims.[2]
[2] CB 69
In summary, the applicant's claims can be found in the Authority's decision at [6],[3] being that:
a)he does not believe in any religion. He grew up in a family who supported the Shah but did not support the regime. He and his family were threatened and abused by members of his community and a man, H, for not following Islam. H came to his house with two other men and threatened and abused him and his brother, took them away and detained them;
b)he participated in Green Movement protests against the Islamic regime in Iran, joined the National Council of Iran in Australia and participated in protests. He has also posted photos and videos of the protests on Facebook; and
c)he fears harm because he is a failed asylum seeker and has lived in Australia for six years, would struggle to find a job in Iran and would face hardship and have a difficult life.
[3] CB 233
On 13 November 2018, the applicant's representative provided photos from the applicant's Facebook page in support of his claims[4] to the Minister’s Department.
[4] CB 84
The applicant attended his scheduled SHEV interview on 14 November 2018.
On 5 December 2018, the applicant's representative sent an email to the Minister’s Department attaching various untranslated identity documents.[5] On 10 December 2018, the applicant's representative sent a further email to the Minister’s Department attaching translated identity documents.[6] A further email was sent on the same date which attached translated identity documents and screenshots of text messages which were partially in English and partially untranslated.[7]
[5] CB 92
[6] CB 109
[7] CB 113
On 11 December 2018, the Minister’s Department sent an email to the applicant's representative, noting that the applicant's year of birth was 1992 in the identity documents, however the Minister’s Department had it recorded as 1991, and the applicant also stated that it was 1991 during the protection visa interview.[8] On the same date, the applicant's representative replied, confirming that the correct year was 1992.[9] A further email was sent by the applicant's representative seeking to provide an explanation for the discrepancy.[10] On 12 December 2018, the applicant's representative sent a statutory declaration explaining the year discrepancy.[11] On the same date, the Minister’s Department sent a letter to the applicant via the applicant's representative confirming the change in year in its records.[12]
[8] CB 135
[9] CB 135
[10] CB 141
[11] CB 150
[12] CB 154
On 12 December 2018, the Minister’s Department emailed the applicant's representative, querying why the applicant's military service card stated “exemption” instead of “completion”.[13] The applicant's representative replied on the same date explaining that the applicant did military service for three months, but was then exempt due to new government laws.[14]
[13] CB 157
[14] CB 157
On 13 December 2018, the delegate refused the application on the basis that Australia did not owe protection obligations to the applicant, the applicant was not credible, and that while the delegate accepted that the applicant had engaged in some political activity in Iran and Australia, she did not accept that he had a profile with the Iranian authorities.[15]
[15] CB 167
On 18 December 2018, the decision was referred to the Authority.
On 9 January 2019, the applicant's representative emailed the Authority, asking for an extension of time to file submissions.[16] This was granted by the Authority on 10 January 2019.[17]
[16] CB 217
[17] CB 218
On 15 January 2019, the applicant's representative provided a submission to the Authority.[18]
[18] CB 220
On 18 March 2019, the Authority notified the applicant, via his representative, of its decision affirming the decision of the delegate.[19]
[19] CB 227
Authority decision
The Authority stated at the outset that the applicant had provided conflicting evidence about whether, and for how long, he undertook military service in Iran.[20] While not directly related to his claims, this changing evidence raised concerns about his credibility as a witness.[21] The Authority also raised credibility concerns in relation to inconsistencies in the applicant's evidence at [16] and [19].[22]
[20] CB 234 at [8]
[21] CB 234 at [9]
[22] CB 236
The Authority accepted that the applicant did not adhere to a religion.[23] However, the Authority was not satisfied that the applicant or his family were progressive, pro-Shahist and anti-regime, was known to H or members of the community for being a non-practising Muslim, or for holding anti-regime views, or that he was threatened or abused for his religious beliefs.[24] The Authority also did not accept that H visited his house or took the applicant away and detained him. Accordingly, the Authority did not accept that the applicant or his family suffered any abuse, either physical or mental, because of their political and religious beliefs.
[23] CB 234 at [10]
[24] CB 237 at [20]
The Authority accepted that the applicant attended Green Movement protests, but considered it to be low level participation, and was not satisfied that the applicant participated in any further political activity in Iran after that time.[25]
[25] CB 237 at [22]
The Authority also accepted that the applicant is a member of the National Council of Iran and attended some of their meetings and anti-regime protests in Australia.[26] However, the Authority was not satisfied that the applicant joined the National Council of Iran, attended protests in Australia or posted material on his Facebook account for any other reason other than to strengthen his claims. Accordingly, the Authority disregarded this conduct under s.5J(6) of the Migration Act 1958 (Cth) (Migration Act).[27]
[26] CB 239 at [27]
[27] CB 240 at [32]
In conducting its refugee assessment, the Authority was not satisfied that the applicant:
a)would come to the adverse attention of the Iranian authorities in the future for his past participation in demonstrations in Iran, or face harm of any kind for reason of his involvement in protests or his political views;[28]
b)would come to the adverse attention of the authorities or others if he returned to Iran because he had no religion;[29]
c)would face harm upon return to Iran due to difficulties finding a job and problems with study and communicating;[30] and
d)that there is a real chance that the applicant will suffer any harm in Iran as a result of being identified as a failed asylum seeker who sought protection and lived for a period of time in Australia.[31]
[28] CB 241 at [34]
[29] CB 241 at [36]
[30] CB 242 at [37]
[31] CB 242 at [40]
In considering complementary protection, the Authority noted that while it disregarded conduct under s.5J(6) of the Migration Act in its refugee assessment, this did not apply to complementary protection.[32] The Authority was not satisfied that the applicant's political activities had come to the attention of the Iranian authorities,[33] and that there is only a remote possibility that the applicant's engagement with the National Council of Iran or attendance at protests would come to the adverse attention of the authorities. The Authority was not satisfied that the applicant would face any more than a remote risk of harm because of his activity on social media if he returns to Iran.[34] Overall, the Authority was not satisfied in relation to complementary protection.[35]
[32] CB 243 at [45]
[33] CB 243 at [46]
[34] CB 244 at [48]
[35] CB 245 at [50]
The current proceedings
These proceedings began with a show cause application filed on 30 April 2019. At the trial, the applicant continued to rely upon that application. The grounds in it are:
1. The Immigration Assessment Authority failed to exercise its jurisdiction according to law.
2. The Immigration Assessment Authority breached procedural fairness by rejecting the claim of the applicant for protection in the absence of any adverse evidence.
The application was filed outside the period prescribed by s.477(1) of the Migration Act. The applicant, who was initially represented, sought an extension of time under s.477(2).
The matter came before me for a preliminary hearing on 17 June 2019. At that time Mr Bahrooz Ehshani appeared on behalf of the applicant. I granted the extension of time sought and also made the following order under rule 44.12(1)(b) of the Federal Circuit Court Rules 2001 (Cth):
Pursuant to rule 44.12(1)(b) of the Federal Circuit Court Rules, the Minister is to show cause why relief should not be granted in relation to the issue of whether the Immigration Assessment Authority at [5] of its decision conflated the discretion under s.473FB(5) of the Migration Act 1958 (Cth) with the terms of s.473DD of the Migration Act 1958 (Cth), having regard in particular to [96]-[98] of DHV16 v Minister for Immigration & Anor [2018] FCCA 349.
The matter was listed for a final hearing on the issue identified in the show cause order on 3 December 2019. That hearing was subsequently vacated and the matter was relisted for a final hearing on 3 June 2020. Mr Ehshani withdrew from the record by notice filed on 20 November 2019.
On 3 June 2020 at the trial, the applicant, who appeared on his own behalf by telephone, with the assistance of a Farsi interpreter by telephone, sought an adjournment in order to obtain legal assistance. I declined to grant an adjournment on the basis that the applicant had already had more than six months since the withdrawal of Mr Ehshani to obtain alternative legal representation. The orders that I made on 17 June 2019 provided both the applicant and the Minister with the opportunity and obligation to provide written submissions in relation to the show cause issue prior to the final hearing. Only the Minister had filed written submissions as required by those orders. I heard the Minister’s submissions orally at the trial on the basis of the evidence comprised in the court book filed on 24 May 2019 and the short affidavit filed by the applicant with his show cause application.
Recognising that the applicant was at a particular disadvantage, I informed the applicant that he would have 28 days to provide written submissions responsive to those of the Minister and made clear that if, within that time, he obtained legal representation and his lawyer sought further time or a further oral hearing, that would be considered.
I made the following orders at the conclusion of the trial on 3 June 2020:
1.The title of the first respondent is amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
2. The applicant is to file and serve any written submissions he wishes to make responsive to the submissions of the Minister filed on 27 May 2020 by 1 July 2020.
3. The Court notes that the Minister’s solicitors will provide to the applicant as soon as possible a further copy of the court book filed on 24 May 2019.
4. Parties have liberty to apply for further directions or orders on five days notice.
On 3 July 2020 (two days after the expiration of the time allocated for further submissions) a Notice of Appearance was filed by a solicitor. On 13 July 2020 an entirely new application was filed containing the following new grounds and abandoning the existing grounds:
3.The Authority failed to consider certain integers of the Applicant’s claims leading to a failure to exercise jurisdiction and/or the Authority failed to construe whether the Applicant had a “well-founded fear of persecution in accordance with the law.
Particulars
a) The Applicant claimed that he does not believe in any religion. (CB233 at [6]).
b) The Authority found the applicant’s evidence about having no religious beliefs to be credible and accepted that he does not have a religion. (CB234 at [10]).
c) The Applicant claimed that he does not often follow the laws and codes of conduct of Iran and as such would be targeted and harassed by the Authorities of the Islamic Republic. (CB71 at [8]).
d) The Authority cited country information to the effect that under Iranian law a Muslim who leaves his faith can be charged with apostasy. However, perceived apostates are only likely to come to the attention of Iranian authorities through public manifestations of their new faith, attempts at proselytization or via informants. (CB241 at [35]).
e) The Authority was not satisfied that the Applicant was known to the authorities for his religious beliefs and found that the Applicant has not made any claims that he wishes to publicise his beliefs either in Australia or if he returns to Iran. Consequently, the Authority was not satisfied that the fact that the Applicant has no religion would bring him to the adverse attention of the authorities in Iran. (CB241 at [36]).
4. The Authority failed to consider certain integers of the Applicant’s claims leading to a failure to exercise jurisdiction.
Particulars
a. In his SHEV application form and response to the question “What was the name on the passport”, the Applicant noted “[HT][36]” (CB 13)
b. In his SHEV application form and response to the question “What do you think will happen to you if you return to your country of nationality (“residence”)? the Applicant responded “Because I left illegally they will be harassed, detained and charged me. I will get in trouble for sure. From whom? From Sepah” (“Illegal Departure Claim”) (CB 13).
c. The Authority noted that he left Iran on a valid passport, which was subsequently collected by the people smugglers. (CB242 at [38]).
d.The Authority cited Country Information which states that according to Article 34 of the Penal Code, the penalty for leaving the country without a valid passport (or similar travel document) is between one and three years’ imprisonment, or a fine of between 100,000 and 500,000 rials (AUD4-20). A special court located in Tehran’s Mehrabad Airport deals with such cases. The court assesses the background of the individual, the date of their departure from the country, the reason for their illegal departure, their connection with any organisations or groups, and any other circumstances (Paragraph 5.33, “DFAT Country Information Report – Iran”, 7 June 2018).
[36] The name has been anonymised
On 10 July 2020 submissions relating to the new application and prepared by counsel were filed. Those submissions purport to be made pursuant to the orders I made on 3 June 2020.
No leave was sought for the new application and neither it nor the submissions were filed in accordance with the timetable put in place by my orders made on 3 June 2020. There is no explanation for the late filing of these documents or the complete change in the applicant’s case, and non attention to the show cause order I made on 17 June 2019. No further hearing was requested.
Consideration
There is no substance to the unparticularised grounds of review in the original application. I accept the Minister’s submissions in respect of those grounds.
Ground 1 - Did the Authority fail to exercise its jurisdiction according to law?
This ground is not particularised and the failure to particularise a ground of review is itself sufficient to warrant dismissal of that ground.[37]
[37] AQN15 v Minister for Immigration & Anor [2016] FCCA 58 at [33]-[35]; WZAVW v Minister for Immigration [2016] FCA 760 at [35]
In any event, there was no failure on the part of the Authority in exercising its jurisdiction according to law. The Authority accurately summarised the applicable law, in relation to both the Convention and complementary protection criteria[38] and there was no error in the Authority’s application of the law to the applicant’s claims.
Ground 2 - Did the Authority breach procedural fairness by rejecting the claim of the applicant for protection in the absence of any adverse evidence?
[38] CB 240 at [30]-[31]; CB 243 at [43]-[44]
In terms of procedural fairness, the Authority's statutory task is to review a “fast-track reviewable decision” referred to it under s.473CA of the Migration Act.[39] The default position or “primary rule”[40] is that the Authority must consider the review material provided under s.473CB without accepting or requesting new information (or interviewing the applicant). In that regard, s.473DA of the Migration Act makes clear that Division 3 (entitled “Conduct of Review”), with s.473GA and s.473GB, is “taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews” conducted by the Authority.
[39] section 473DB(1)
[40] Plaintiff M174/2016 v Minister for Immigration (2018) 353 ALR 600 at [22] per Gaegler, Keane and Nettle JJ
The applicant has not pointed to any breach of the Authority's procedural fairness obligations. To the extent that the applicant is asserting that the Authority was legally unreasonable in rejecting claims in the absence of evidence, for the decision to be affected by a jurisdictional error of this kind, it would have to be contrary to the weight of the evidence and illogical in the sense described by the High Court in Minister for Immigration v SZMDS.[41] That is, it would have to be a decision that no decision maker, acting reasonably, could have come to on the basis of the evidence before them.
[41] (2010) 240 CLR 611
The Authority rejected the applicant's claims for protection on the evidence before it, including the applicant's arrival interview, SHEV application, SHEV interview, submissions and documents provided by the applicant's representative to the delegate, identity documents, relevant country information as well concerns it had about the applicant's credibility due to inconsistencies in his evidence. It was open to the Authority to do this and to the extent that the applicant disagrees, there is no requirement that a decision maker (in this matter the Authority) engage in "an uncritical acceptance of any and all allegations made by applicants".[42]
The show cause issue
[42] Randhawa v Minister for Immigration (1994) 52 FCR 437 at 451-2 per Beaumont J
The Minister’s submissions
Section 473DB of the Migration Act sets out the “primary requirement” or “primary rule”[43] that the Authority is to review a fast track reviewable decision referred to it by the Minister under s.473CA by considering the review material provided to it under s.473CB “without accepting or requesting new information” and “without interviewing the referred applicant”.
[43] Plaintiff M174/2016 at 227 [22] per Gageler, Keane and Nettle JJ
Section 473DC(2) provides that the Authority “does not have a duty to get, request or accept” any new information in any circumstances. “New information” is defined in s.473DC(1).
Section 473FB(1) confers power on the President of the Administrative Appeals Tribunal (Tribunal) to issue directions not inconsistent with the Migration Act or the regulations made thereunder as to “the operations of the … Authority” and “the conduct of reviews by the Authority”. Section 473FB(5) provides that the Authority “is not required to accept new information or documents from a person, or to hear or continue to hear a person at an interview, if the person fails to comply with a relevant direction that applies to the person”.
On 17 December 2018, the President of the Tribunal, Thomas J, issued a direction under s.473FB(1) (Practice Direction). Paragraph 30 of the Practice Direction provided as follows:[44]
If you provide or refer to new information such as country information reports or media articles, you must:
·attach a copy of that information or an extract of the part(s) of the information on which you rely, and
·identify the source of the information.
Lists of publicly available documents or hyperlinks to publicly available documents are not acceptable.
[44] CB 203
Paragraph 28 of the Practice Direction provides that, if a referred applicant gives to the Authority new information, he or she “must also provide an explanation in writing as to why … the information could not have been given to the Department before the decision was made, or … the information is credible personal information which was not previously known and may have affected consideration of your claims, had it been known”.[45]
[45] CB 202
The Minister has not considered it necessary, for the purposes of responding to the issue raised by me to discuss the interrelationship (if any) between ss.473DC(2) and 473FB(5), each of which states that the Authority is not under a duty to “accept” new information.
Where new information is given to the Authority by, or on behalf of, a referred applicant, s.473DD operates to prohibit it from considering that information unless, first, it is satisfied that there exist exceptional circumstances to justify considering that information (subparagraph (a)), and, secondly, cumulatively upon the precondition in s.473DD(a),[46] the referred applicant satisfies the Authority that the information was not, and could not have been, provided to the Minister before a decision was made under s.65 or is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims (subparagraph (b)).
DHV16 v Minister for Immigration & Anor [2018] FCCA 349
[46] Plaintiff M174/2016 at 230 [31]
In DHV16, the Authority had made the following relevant findings:[47]
The applicant has not advanced reasons why the information could not have been provided before the delegate made a decision, nor is there an explanation why the information is credible personal information which was not previously known and may have affected consideration of the applicant’s claims had it been known. The new information does not therefore comply with the Practice Direction of May 2016 made under s 473FB of the Act (the Practice Direction). I also note that the DNA information was provided well outside the period specified in the Practice Direction.
Having regard to the information before me, I am not satisfied in relation to the matters set out in s 473DD(b) of the Act and am prevented from considering the new information.
[47] at [88]
I held that the Authority had “misconstrue[d] s.473DD(b) in three respects”.[48] One of the ways in which the Authority misconstrued that provision was by “conflating the requirements of s.473DD(b) with the requirements of the Practice Direction made under s.473FB”.[49] It had identified the referred applicant’s purported non-compliance with that direction “as the principal (and perhaps the only) reason why it was not satisfied as to the matters set out in s.473DD(b)”.[50]
[48] at [92]
[49] at [96]
[50] at [96]
I observed at [97] that s.473FB(5) confers on the Authority “an antecedent discretion whether to embark upon the consideration required by s.473DD”. In that case, “[b]y embarking upon … consideration [of s.473DD], the Authority had … moved beyond the exercise of that antecedent and non-compellable discretion”.
The present case
I accept the Minister’s submissions in the present case. In the present case, the applicant’s representative provided to the Authority, on 15 January 2019, written submissions in which he referred to particular items of country information.[51] That country information was not attached to the submissions. Nor were extracts from that country information set out in the body of the submissions. In some instances, the source of the country information was not identified.[52]
[51] CB 223-224
[52] see, for example, the documents referred to in footnotes 2 and 3 at CB 223
In its reasons for decision, the Authority stated the following:[53]
… [T]he submissions also refer to a number of pieces of country information regarding political protests, social media and failed asylum seekers which were not before the delegate and are new information. The applicant was sent a copy of the IAA’s December 2018 Practice Direction for Applicants, Representatives and Authorised Recipients which requires the applicant to attach a copy of the new country information or an extract of the parts of the information on which they rely, and to identify the source of the information, and states that hyperlinks are not acceptable. The submission was prepared by the applicant’s representative, who is a lawyer and migration agent. The applicant has not attached a copy or extract of the parts of the information he relied upon. Some of the information is not fully sourced, or the source consists only of a hyperlink. The new information does not comply with the requirements in the Practice Direction and I have decided not to accept it. In any event, even if I were to accept it, the applicant has not satisfied me of the requirements in s.473DD(b), namely that the information could not have been provided before the delegate made her decision, or that the information is personal information.
[53] at CB 233 [5]
The following propositions emerge from these findings.
First, the Authority was satisfied that the country information to which the applicant referred in his written submissions was new information (as defined in s.473DC(1)).
Secondly, the Authority found that the applicant had failed to comply with the Practice Direction (relevantly, [30] of that direction) by failing to attach a copy or extract of the parts of the new information upon which he relied and, in some instances, by failing fully to source the information or merely to provide hyperlinks to the information.
That finding was open to the Authority to make on the face of the applicant’s submissions at CB 223-224.
Thirdly, by reason of the applicant’s failure to comply with the Practice Direction, the Authority “decided not to accept [the country information upon which he proposed to rely]”. Although not referred to expressly, given the Authority’s finding of non-compliance with the Practice Direction, it can comfortably be inferred from its reasons that it had exercised its power in s.473FB(5) not to accept the new information.[54]
[54] it is not necessary to determine whether the Authority had the power not to accept the new information pursuant to s.473DC(2)
Fourthly, the Authority went on to say, in the alternative, that, even if it decided to accept the new information, the applicant had failed to satisfy it of the matters set out in ss.473DD(b)(i) or (ii).
Once again, this finding was open to the Authority to make. Despite the terms of [28] of the Practice Direction, the applicant failed to provide any explanation as to why the Authority should be satisfied of the matters in ss.473DD(b)(i) or (ii). As Mortimer J observed in AUH17 v Minister for Immigration[55] at [33], while s.473DD(b) does not impose any burden on a referred applicant, the provision, which provides that the referred applicant is to satisfy the Authority of the matters set out therein,[56] “at least calls for some material from an applicant by way of explanation”.[57] Like the referred applicant in that case, the applicant here proffered no such material. In those circumstances, the Authority was not in error to identify s.473DD(b) as not satisfied.[58] Indeed, neither paragraph could have been met in this case: the new information well pre-dated the delegate’s decision (cf s.473DD(b)(i)) and, being country information, it was not “personal information” as defined in s.5(1) of the Migration Act (cf s.473DD(b)(ii)).[59]
[55] [2018] FCA 388
[56] cf s.473DD(a), which opens with the words, “the Authority is satisfied …”.
[57] see also COE16 v Minister for Immigration [2019] FCA 1370 at [48] per Griffiths J
[58] AUH17 at [33]
[59] Section 5(1) refers to the Privacy Act 1988 (Cth), which, in s.6(1), defines the phrase as “information or an opinion about an identified individual, or an individual who is reasonably identifiable”.
Fifthly, here, unlike DHV16, the Authority did not reason that, because the applicant had failed to comply with the Practice Direction, it was not satisfied of the matters in s.473DD(b). The opening words of the final sentence in [5] of the Authority’s decision record (“[i]n any event, even if I were to accept it”) make plain that its reasons as to why it was not satisfied of either condition in s.473DD(b)(i) or s.473DD(b)(ii) were separate from, and independent of, the reasons for its non-acceptance of that information pursuant to s.473FB(5).
Applicant’s submissions
Notwithstanding that the applicant failed to comply with my order for post hearing submissions, I have considered the new application and the submissions supporting it.
In Ground 3, the applicant contends that the Authority failed to consider certain integers of his protection claims namely whether:
a)the applicant’s claim that he does not often follow the laws and codes of conduct of Iran and as such would be targeted and harassed by the Authorities of the Islamic Republic (“Non-Compliance Claim”) would expose the applicant to serious harm or significant harm; and
b)whether the Non-Compliance Claim would bring the applicant to the adverse attention of the Authorities, lead to a public manifestation or exposure of his departure from Islam, leading to a charge of apostasy.
Secondly, the applicant contends that in disposing of a No Religion Claim made by the applicant, the Authority:
a)relied on an erroneous finding; and
b)found that the applicant would modify his behaviour to avoid a real chance of persecution by concealing his true religious beliefs, running foul of s.5J(3)(c)(i).
Non-Compliance Claim
The applicant made the Non-Compliance claim in his statement at CB 70-73. The Authority is said to have failed to consider whether the applicant would be exposed to serious or significant harm as a result of his non-compliance with Iranian laws and codes including Iranian Islamic laws and code of conduct.
No Religion Claim
Secondly, in conjunction with the Non-Compliance Claim, the applicant claimed he does not believe in any religion (“No Religion Claim”). The Authority accepted the No Religion Claim as credible at [10].[60] Citing country information, the Authority found that under Iranian law a Muslim who leaves their faith or converts to another faith or atheism can be charged with apostasy. However, it also found that perceived apostates are only likely to come to the attention of Iranian authorities through public manifestations of their new faith, attempts at proselytization or via informants. Subsequently, it disposed of the No Religious Claim by finding that:
a)the applicant was not known to the Authorities for his religious belief; and
b)the applicant has not made any claims that he wishes to publicise his beliefs either in Australia or if he returns to Iran (the “finding”).
[60] CB 234
The finding that the applicant has not made any claims that he wishes to publicise his beliefs either in Australia or if he returns to Iran is said to be erroneous for four reasons:
a)it failed to deal with a factor in the applicant’s claim that he does not follow the laws and code of conduct of Iran, including Islamic codes of conduct;
b)it is not consistent with the applicant’s Non-Compliance Claim;
c)it implies that the applicant would be discreet about his religious belief and there is no evidence or material before the Authority to support the view that the applicant wishes or intends to be discreet about his religious beliefs if he returns to Iran;
d)the Authority failed to consider whether a wish not to publicise his faith would constrain the applicant in the practice of his religious belief and whether such a wish was due to a perception that to behave more openly or aggressively would leave him at risk of persecution.
The applicant argues that in arriving at the finding, the Authority failed to consider whether the applicant’s Non-Compliance Claim would bring him to the adverse attention of the authorities and expose his departure from Islam and whether he would consequently suffer serious or significant harm, either because he would be charged with apostasy or because he would be charged with failure to comply with Iranian laws and codes, including religious laws and codes. Also, the applicant contends that in finding that the applicant had not made any claims that he wishes to publicise his beliefs when he returns to Iran, the Authority failed to consider that the applicant had claimed that he does not follow the laws and code of conduct of Iran and whether such non-compliance with Iranian laws and codes of conduct (including religious laws) would ultimately, have the effect of publicising his non-belief. The applicant submits that the Authority’s finding was erroneous.
In the alternative, the applicant submits that, even accepting that the finding was not erroneous, the Authority failed to consider whether the reason why he would wish not to publicise his beliefs in Iran was because he feared persecution. In Appellant 395/2002 v Minister for Immigration[61] Gummow and Hayne JJ stated at 503 [88]:
The Tribunal did not ask why the appellants would live “discreetly”. It did not ask whether the appellants would live “discreetly” because that was the way in which they would hope to avoid persecution. That is, the Tribunal was diverted from addressing the fundamental question of whether there was a well-founded fear of persecution by considering whether the appellants were likely to live as a couple in a way that would not attract adverse attention.
[61] (2003) 216 CLR 473
Earlier, at 501 [82], Gummow and Hayne JJ made it clear that the Tribunal had no power to direct how an applicant might live in another country. Their Honours stated:
Saying that an applicant for protection would live “discreetly” in the country of nationality may be an accurate general description of the way in which that person would go about his or her daily life. To say that a decision-maker “expects” that that person will live discreetly may also be accurate if it is read as a statement of what is thought likely to happen. But to say that an applicant for protection is “expected” to live discreetly is both wrong and irrelevant to the task to be undertaken by the Tribunal if it is intended as a statement of what the applicant must do. The Tribunal has no jurisdiction or power to require anyone to do anything in the country of nationality of an applicant for protection. Moreover, the use of such language will often reveal that consideration of the consequences of sexual identity has wrongly been confined to participation in sexual acts rather than that range of behaviour and activities of life which may be informed or affected by sexual identity. No less importantly, if the Tribunal makes such a requirement, it has failed to address what we have earlier identified as the fundamental question for its consideration, which is to decide whether there is a well-founded fear of persecution. It has asked the wrong question.
In the present case, the Authority may not have expressly used the word “expect”. However, the applicant asserts that it can be reasonably inferred that the Authority “expected” that he would wish to live a certain way on his return to Iran, being a way that would not publicise his religious beliefs. The applicant submits that the Authority’s “expectation” and finding about the likelihood of persecution was neither based upon the applicant’s past conduct in Iran nor on any reasonable evidence based projection of his future conduct in Iran. In essence, the Authority is said to have relied on a claim that was not in fact made by the applicant. The applicant submits that the Authority decided that the applicant would modify his behaviour to avoid a real chance of persecution by concealing his true religious beliefs and as such the finding runs foul of s.5J(3)(c)(i) of the Migration Act.
The applicant submits that the Non-Compliance Claim was explicitly made and alternatively, the Non-Compliance Claim squarely arose from the material before the Authority.[62] The applicant submits that the Non-Compliance Claim was material and central to the applicant’s protection claims and the question whether he would suffer harm if returned to Iran. Furthermore, the Non-Compliance Claim was relevant and material on its own and in relation to the No Religion Claim. The applicant submits that the Authority’s failure to deal with the Non-Compliance Claim as expressed and in relation to the No Religion Claim leads to an “inevitable conclusion” that it overlooked this aspect of the applicant’s claim and failed to exercise jurisdiction.
[62] NABE v Minister for Immigration(No 2) [2004] FCAFC 263 at [55]
Relevantly, the applicant’s primary fear is said to have stemmed from his claim that he had no religious belief and as a result of his non-belief, he did not follow the laws and code of conduct of Iran. He feared that he would be targeted and harassed by the authorities of the Islamic Republic as a result of his non-compliance. Consequently, the critical question before the Authority was whether his non-compliance with laws and the associated fear of risk of harm from the authorities of the Islamic Republic would lead to serious harm or significant harm. The Authority is said to have failed to grapple with this question. Furthermore, the Authority is said to have erred when it decided that the applicant’s claim to fear persecution was not well-founded because he would modify his behaviour to avoid a real chance of persecution by concealing his true religious beliefs.
In SZTFI v Minister for Immigration[63] at [53], Perry J explained:
A failure to consider a contention amounting to a failure by the Tribunal to exercise its jurisdiction will relevantly arise where there has been a failure to consider a “substantial, clearly articulated argument” that, if accepted, might establish a well-founded fear of persecution for a Convention reason (Dranichnikov v Minister for Immigration and Citizenship [2003] HCA 26; (2003) 197 ALR 389 at [24] (Gummow and Callinan JJ (Hayne J agreeing at [95])); Plaintiff M61/2010 v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319 at [90] (the Court); see also the helpful recent discussion of relevant principle in SZSSC v Minister for Immigration and Border Protection [2014] FCA 863; (2014) 142 ALD 150 at [81]-[82] (Griffiths J). Equally, there will be a constructive failure to exercise jurisdiction if the Tribunal fails to consider a claim which “squarely” arises on the material before the Tribunal in the sense that “it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal”: NABE v Minister for Immigration and Multicultural and Indigenous Affairs(No. 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [58] (the Court). In either case, the constructive failure to exercise jurisdiction may properly be seen as a failure to carry out the review required by s 414 of the Act: NABE at [55]; Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 at [42] (Allsop J with whom Spender J agreed at [1]).
[63] [2015] FCA 322
Likewise, in NABE at [58] the Court cited the following decisions:
The Tribunal is required to deal with the case raised by the material or evidence before it – Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157 at 180[114] (Merkel J). There is authority for the proposition that the Tribunal is not to limit its determination to the ‘case’ articulated by an applicant if evidence and material which it accepts raise a case not articulated – Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 63 (Merkel J); approved in Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at 293 – 294 (Wilcox and Madgwick JJ).
The applicant submits that that the Authority was statutorily required to consider whether there was a real chance that if the applicant returned to Iran, he would face persecution arising from the Non-Compliance Claim and in relation to the No Religion Claim, as argued above.
In Htun v Minister for Immigration[64] at [42] the Court noted:
The requirement to review the decision under s 414 of the Act requires the Tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration in the sense discussed in Minister for Aboriginal Affairs v Peko Wallsend (1986) 162 CLR 24; and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1
[64] (2001) 194 ALR 244
The applicant submits that for the reasons outlined above, the Authority decision is infected with jurisdictional error flowing from a failure to exercise jurisdiction and a failure to construe “well-founded fear of persecution” in accordance with the law.
Ground 4
In Ground 4, the applicant contends that the Authority failed to consider an integer of his protection claim namely that he feared that if returned to Iran, he will be harassed, detained and charged by Sepah because he left Iran illegally (Illegal Departure Claim). The Authority noted at [38][65] that the applicant departed Iran with a valid passport. However, it is said to have failed to deal with the fact that the applicant departed Iran on a false or forged passport and his claim that he would be harassed, detained and charged by Sepah for departing Iran illegally. In essence, the Authority is said to have failed to grapple with the question whether the applicant would be deemed to have left Iran illegally because he left on a fake or forged passport and whether he would be subjected to serious harm or significant harm because he departed Iran illegally.
[65] CB 242
Notably, the Authority cited country information which states that in accordance with Article 34 of the Penal Code, the penalty for leaving the country without a valid passport (or similar travel document) is between one and three years’ imprisonment, or a fine of between 100,000 and 500,000 rials (AUD4-20). However, it failed to deal with the question whether the applicant, by virtue of travelling on a fake or forged passport would be deemed to have contravened Iranian laws.
The applicant submits that the Illegal Departure Claim was explicitly made and alternatively, the Illegal Departure Claim squarely arose from the material before the Authority.[66] However, there is no paragraph in the Authority’s decision record which deals with the fact that the applicant departed Iran on a fake or forged passport.
[66] NABE at [55]
The applicant cites the same authorities cited in [16], [17] and [19]. Furthermore, the duty to give “proper, genuine and realistic consideration” to a matter applies to a matter to which the decision-maker is required to consider.[67] In Singh, the Full Federal Court explained at [36]-[37]:
[67] Singh v Minister for Home Affairs [2019] FCAFC 3 at [30]
The principle does not require the decision-maker to refer in the reasons to every piece of evidence and every contention made: Carrascalao at [45]; ETA067 at [13]. However, if a critical piece of evidence or a particular issue is not referred to, that fact might be one from which an inference can appropriately be drawn that the decision-maker did not consider it. That, in turn, may be relevant to whether the decision-maker engaged actively with the matter.
In determining whether the decision-maker had an active intellectual engagement, the following matters are relevant:
(1)First, the degree of consideration which is necessary for the jurisdiction to be exercised … is affected by the centrality of the matter which it is said was not engaged with, to the issues and the prominence the matter assumed.
(2)Secondly, in examining the reasons of the decision-maker to determine whether there was a lack of intellectual engagement:
(a)the reasons should not be scrutinised “minutely and finely with an eye keenly attuned to the perception of error”: Carrascalao at [45], quoting Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (Wu Shan Liang) at 272;
(b)it is necessary to read the reasons in light of the whole case as it was before the Tribunal, which might have involved more issues than are raised, and more evidence than is, before courts on judicial review and subsequent appeal. The failure to mention a particular paragraph of a particular piece of evidence should be analysed by reference to the whole of the material before the Tribunal and its prominence assessed by reference to all of the issues and the way in which the matter was conducted in the Tribunal; and
(c)a conclusion that the decision-maker has not engaged in an active intellectual process “will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicants carry the onus of proof”: Carrascalao at [48].
Where there is ambiguity or uncertainty as to the manner in which a decision-maker has dealt with an applicant’s claim, the Court may find on a judicial review application that the decision-maker has not properly and genuinely considered the claim.[68] The applicant submits that the Authority failed to properly and genuinely consider the Illegal Departure Claim.
[68] WZAQU v Minister for Immigration [2013] FCA 327 at [29]
The applicant further submits that for the arguments outlined under Grounds 3 and 4, the Authority’s decision is infected with jurisdictional error.
Resolution
I reject additional Grounds 3 and 4.
In relation to Ground 3, the applicant, in his statement reproduced at CB 70-73, made a claim about his secular and royalist upbringing which led him to take a position of opposition to the theocratic regime which replaced the Shah. The Authority dealt with that mixed religious and political claim in its reasons at [10]-[20]. At [16][69] the Authority stated:
The applicant’s shifting evidence about whether his parents were never religious or have strict religious beliefs, and whether his mother is pro-Shahist or a supporter of the Islamic regime, lead me to have real doubts about the credibility of the applicant’s claims regarding his family’s political and religious beliefs.
[69] CB 236
The Authority ultimately rejected the applicant’s claims at [20].[70]
[70] CB 237
The conclusions reached by the Authority were open to it on the material before it. I reject the applicant’s contention that a “non compliance claim” or a “no religion claim” were left unconsidered.
The Authority went on at [21]-[28] to consider at length the applicant’s political and social media activity in Australia. The Authority essentially concluded that this had been contrived in an effort to bolster the applicant’s claims for protection. That consideration by the Authority is a further answer to the Non-Compliance Claim.
New Ground 4 takes issue with the Authority’s reasoning at [38][71] where the Authority stated:
The applicant claims to fear harm as a returning asylum seeker from a western country. The applicant left Iran on a valid passport which he claims was collected by the people smugglers. Given that the applicant no longer has his passport, he will require temporary travel documents to be issued by Iranian diplomatic representatives overseas[72]. The country information provides that authorities at the airport in Iran will be forewarned about the return of a person on a temporary travel document because of Iran’s sophisticated government systems[73], and in these circumstances, I accept that the Iranian authorities may infer that the applicant has sought asylum in Australia.
[71] CB 242
[72] DFAT, “DFAT Country Information Report – Iran”, 7 June 2018, CIS7B839411226, page 49.
[73] DFAT, “DFAT Country Information Report Iran April 2016”, 21 April 2016, CIS38A8012677, page 29.
The applicant now poses a counterfactual scenario that he did not leave Iran on a valid passport as the Authority found. The assertions made in support of this ground are, in my view, an appeal to the merits and attack the Authority’s factual finding. The applicant does not assert that the Authority made a factual error but simply asserts that the truth is the opposite of what the Authority found.
It is true that in his arrival interview the applicant claimed to have departed Iran illegally using a passport in a different name.[74] However, that claim was not repeated in the applicant’s SHEV application or subsequently. It appears that, at his SHEV interview with the delegate, the applicant gave evidence consistent with the Authority’s finding at [38].
[74] CB 12-14
As has been repeatedly stated, the merits of decisions by the Authority and the Tribunal are beyond the scope of this Court’s jurisdiction.
Conclusion
The applicant has failed to establish that the decision of the Authority is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 21 August 2020
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