BZAED v Minister for Immigration - [2014] FCCA 1531

FEDERAL CIRCUIT COURT OF AUSTRALIA

BZAED v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 1531

Catchwords:
MIGRATION – Whether tribunal applied correct test to consideration of claim for complementary protection – whether tribunal decision affected by “illogicality” – matters of “credit” of applicant – no error demonstrated.

Legislation:

Migration Act 1958 (Cth), ss.36, 36(2A), 36(2)(aa), 46A(2), 65, 91R(2)(a), 91R(2)(b), 424A, 474

Applicant WAEE v MIMIA (2003) 75 ALD 630
Dranichnikov v MIMIA (2003) 77 ALJR 1088
Li v Minister for Immigration & Anor [2010] FMCA 583
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 455
MIAC v SZMDS (2010) 240 CLR 11
MIAC v SZMOK (2009) 257 ALR 427
MIEA v Wu Shan Liang (1996) 185 CLR 259
MIMA v Eshetu (1999) 197 CLR 611
Re Drake and Minister for Immigration (No.2) [1979] ALD 634
Re MIMA; ex parte Durairajasingham (2000) 68 ALR 407
SZOOR v MIAC (2012) 102 FCR 1
VAAD v MIMIA [2005] FCAFC 117

Applicant:

BZAED

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

BRG 443 of 2013

Judgment of:

Judge Jarrett

Hearing date:

26 November 2013

Date of Last Submission:

26 November 2013

Delivered at:

Brisbane

Delivered on:

17 July 2014

REPRESENTATION

Counsel for the Applicant:

The Hon. Mr Wells

Solicitors for the Applicant:

Refugee and Immigration Legal Service

Counsel for the First Respondent:

Mr Reilly

Solicitors for the First Respondent:

Sparke Helmore

The Second Respondent entered a submitting appearance.

ORDERS

The amended application filed on 12 August, 2013 is dismissed.
The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $6,466.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 443 of 2013

BZAED

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for review of a decision of a refugee review tribunal made on 30 April, 2013 which affirmed a decision of a delegate of the first respondent to refuse the applicant a protection visa.
The applicant’s amended application contains seven grounds of review, but grounds five and seven are no longer pressed. The remaining five grounds were pressed in argument before me.
According to the applicant’s written submissions, the key issue in this application is whether the tribunal erred in law when it determined that there was no real risk that the applicant would suffer 99 lashes if she was returned to Iran. The applicant argues, amongst other matters, that the tribunal ought to have determined that she was entitled to the benefit of complementary protection under s.36(2)(aa) of the Migration Act1958 because serious harm, namely 99 lashes, would befall her if she returned to Iran.
She seeks the issue of constitutional writs with effect that the tribunal’s order is set aside and her application remitted to another tribunal for determination according to law.

Background

The applicant is a citizen of Iran who arrived on Christmas Island on 19 June, 2012. An entry interview was conducted with the applicant on 25 June, 2012. On 2 August, 2012, the first respondent decided to “lift the bar” pursuant to s.46A(2) of the Migration Act1958 so as to permit the applicant to make an application for a protection visa. On the same day, the applicant lodged an application for such a visa.
In her initial statutory declaration, made for the purposes of her visa application, the applicant claimed (at paragraph 44) to fear harm from the Iranian authorities because she had come to their adverse attention for embracing the Baha’i faith. Although the applicant also mentioned that:
a)she had participated in protests in 2009 along with many other Iranians and had been arrested, detained for a few hours and beaten by the Basiji; and
b)had been subjected to “harsh treatment” at the hands of the Basiji in the past for not adhering to Islamic dress codes;
her claim was clearly that she feared persecution from the Iranian authorities for religious reasons, namely her conversion to the Baha’i faith.
She claimed that she was first introduced to Baha’i by a neighbour in 1995 but did not develop an interest in the faith until after her divorce from her husband on 24 July, 2007. She attended prayer group meetings with her sister-in-law and perhaps other members of her family. After discussing her new faith with a neighbour, the applicant received anonymous telephone calls. She later discovered from the janitor in her apartment building that her neighbour’s husband was part of the Police and that he had been asking a lot of questions about her.
In May, 2012 the janitor told the applicant that the Iranian police had come looking for her and she was required to report to the police station. He said that the Police asked him to tell the applicant that if she did not report to the Police station in a week, a summons “would be delivered”.
In her entry interview conducted when she arrived at Christmas Island, the applicant claimed that she left Iran by illegally crossing over the Turkish land border by foot. She gave an elaborate story about how it was that she came to Indonesia and then to Australia. However, that information turned out to be untrue. The applicant admitted in her initial statutory declaration, made for the purposes of her visa application, that she had not told the truth in her entry interview about those matters. She said that she had in fact left Iran through the airport on a passport issued in her own name and travelled to Jakarta, via Qatar.
The first respondent’s delegate refused to grant the applicant the sought after visa on the basis that the applicant’s claims were not credible. The delegate was not satisfied that the applicant was a person to whom Australia owed protection obligations under s.36 of the Act and the associated regulations.
The applicant applied for a review of the delegate’s decision by a refugee review tribunal. Her claims before the tribunal were spelt out in a letter to the tribunal from her solicitors and migration agents dated 14 January, 2013 as follows:
If [the applicant] is returned to Iran, she fears serious harm from the Iranian authorities as well as vigilante groups such as the Basij, for reasons of her:
a) religion;
b) imputed political opinion; and
c) membership of the particular social group of failed returned asylum seekers from the west.
Save for the claim relating to being a failed asylum seeker from the west, it is clear from that letter that the claims advanced by the applicant related to her conversion to, interest in and activities relating to the Baha’i faith.
The applicant also advanced a claim for complementary protection pursuant to s.36(2)(aa) of the Act. For the reasons that she advanced in relation to her primary claims, she submitted (by her representatives) that she was at risk of death, arbitrary deprivation of life, torture, cruel or inhumane treatment or punishment or that she would be subjected to degrading treatment or punishment upon her return to Iran. Those matters were all connected with her interest in the Baha’i faith.
At the same time that the applicant in this matter applied for a review of the delegate’s decision relating to her visa application, two of her relatives also applied for similar reviews. As the tribunal explains in paragraph 50 of the reasons for decision in this matter:
50. [The applicant] gave evidence to the Tribunal on 17 January 2013 in the hearing convened for her niece, [the applicant’s niece]. I had contacted the applicant’s representative prior to the hearing and asked that [the applicant’s sister-in-law] and [the applicant] be available to give evidence as witnesses in [the applicant’s niece’s] hearing about matters common to the members of the family, and this was done. I explained to [the applicant] that I would take into account the answers she gave to questions at this hearing for the purpose of her own review, in addition to evidence she gave at the hearing of her review at a later date. No objection was taken to this course. Thus, the applicant gave evidence to the tribunal on 17 January, 2013 in the application of one of her relatives. She also gave evidence on 18 January, 2013 and 7 February, 2013 in her own review hearing.
On 8 March, 2013 the tribunal sent to the applicant and her representatives an invitation to comment or respond to information that the tribunal considered would, subject to the comments or responses received, be the reason or part of the reason for affirming the decision under review.
By letter dated 28 March, 2013 a written response to that invitation was made by the applicant’s representatives on her behalf. That letter included a new claim under the heading “Further Information”.
In summary, the further information was that a court order had been issued in Iran against the applicant whereby she had been sentenced to receive 99 lashes consequent upon a charge of “illicit relationship beyond adultery”. That information was said to be relevant for three purposes, namely:
a)first, it tended to corroborate the applicant’s claims that the Iranian authorities were aware of the applicant’s interest in the Baha’i faith because, she argued, members of that faith were often charged and sentenced in relation to unrelated criminal matters;
b)secondly, it tended to corroborate her claims that members of the Baha’i faith were subjected to persecution and in particular harassment with charges unrelated to their religious beliefs and practices; and
c)thirdly, the sentence of 99 lashes was such that the complementary protection provision of the Act were engaged and the applicant’s review should succeed on that basis alone.

The tribunal’s decision

The tribunal accepted that the applicant was an Iranian citizen and had no right to enter and reside in any third country. The tribunal, however, had serious concerns about the truthfulness and credibility of the evidence given by the applicant and her two relatives. The tribunal did not “accept any of the material particulars” of the applicant’s claimed circumstances and events in Iran.
After referring to certain academic work which considered the way in which the assessment of credibility of refugee claims should be carried out, the tribunal said:
151. Primarily, and of itself conclusive of my assessment of the credibility of the witnesses (including [the applicant]), I rely on the fact that critical aspects of the narrative itself have changed from the time that [the applicant] first recounted them to an officer of the Department, and it has been acknowledged that earlier versions were untruthful. I am particularly concerned that these matters are not extraneous to the core claims, but rather go to the very heart of the claims, namely the circumstances in which the claimed interest in the Baha’i faith was discovered and how it was that [the applicant] left Iran including whether it was done legally or illegally.
152. I have reflected particularly carefully on the submissions put in mitigation to these concerns. The submissions have some force, particularly as I do acknowledge that the evidence was changed early in the process before the Department, and there was an early acknowledgment that information had been falsely provided. However, while I have taken that submission into account, along with the other explanations offered, on balance I am not persuaded that the current version of events is therefore correct and truthful.
153. On reflection, as a consequence of [the applicant’s sister-in-law and the applicant’s niece] and [the applicant’s] acknowledgement that they provided untruthful evidence to the Department about the circumstances in which their interest in the Baha’i faith came to the attention of the authorities, and with whom and in what manner they left Iran, I have no confidence in the value of their evidence about matters which I am not able to corroborate for myself.
The tribunal also determined that its primary credibility concerns were reinforced by the accumulation of other “secondary” concerns. On this basis, the tribunal was in “no doubt” that the evidence that had been given about the applicant’s circumstances in Iran was untruthful. Those secondary concerns were:
a)that so many members of an extended family decided to adopt a persecuted minority religion in Iran at about the same time and were all able to narrowly evade arrest in different circumstances and flee Iran for Australia, something which the tribunal found “implausibly coincidental”;
b)that in circumstances where the applicant’s brother had fled Iran due to his association with the Baha’i faith group of which the applicant was a member, she would be sharing her interest in the Baha’i religion with customers of her hairdressing salon and with neighbours in her apartment block, something which the tribunal was unable to accept.
c)that the evidence about the circumstances by which the Iranian authorities became aware of the applicant’s interest in the Baha’i faith, and then acted upon it in questioning her was “implausible”.
d)that the Iranian authorities would issue a summons and leave it in the care of her building janitor, when they could have readily approached her at her workplace, something which the tribunal also found to be implausible.
On the basis of its adverse credibility findings, the tribunal found that the applicant had been untruthful and rejected all of her key claims. It also did not accept that the Iranian authorities would know about the applicant’s “very limited contact with Baha’i organisations in Australia” and found there was no basis for a sur place claim.
Whilst accepting that the applicant’s claimed fear of harm as a failed asylum seeker returning from the West had a Convention nexus, the tribunal did not accept that she had a well-founded fear of persecution for this reason. It noted independent country information that indicated returnees of this type who also had a political record or identifiable political profile faced harm but relied on a DFAT report that indicated there was no widespread pattern of maltreatment of returned Iranian asylum seekers. The independent country information also indicated that such returnees might be monitored and pressured if the Iranian regime was aware of the failed asylum bid.
Whilst accepting that the applicant might be interrogated or questioned on her return, the tribunal found this would not constitute serious harm. In so finding, the tribunal noted that the applicant’s evidence was that she had left Iran on her own genuine passport and there was nothing to indicate that the Iranian authorities would be aware of her asylum bid. It also inferred, given that the applicant did not have any religious or political profile, that she could re-enter Iran without attracting adverse attention. On this basis the tribunal was not satisfied that the applicant had a well-founded fear of persecution.
For the same reasons, the tribunal was also not satisfied that the applicant met the complementary protection criteria for the grant of a protection visa. Specifically, it did not accept that being questioned on return constituted “significant harm” as defined in s.36(2A) of the Act.
The tribunal considered the claim based on the document submitted by the applicant containing a “verdict of 99 lashes”, but found that the document did not genuinely reflect events that had taken place in Iran. In that respect, the tribunal said:
160. In the context of this perception of [the applicant’s] evidence that I have considered the documentary evidence purporting to be a court verdict in absentia administering 99 lashes for the crime of conducting an illicit relationship beyond adultery, including references to suspicious contacts.
161. I place no weight on the existence of this document. I do not accept that it genuinely represents events that have transpired in Iran.
162. I note the date of the document is translated to be 11 October 2012.
163. In the course of [the applicant’s] hearing, I expressly asked her if her relationship with her de facto partner had ever caused her to fear harm. Her clear answer to me in the context of this question was that while the relationship was frowned upon, she did not fear any harm from it. She had told me that she had not previously mentioned receiving an anonymous note in her letter box about her behaviour in this regard because it was not an issue for her.
164. I do not accept that if this document was genuine, that its existence would not have been brought to [the applicant’s] attention prior to the hearing. [The applicant’s] told me at the hearing that she was in contact with her de facto partner and her son. I consider it implausible that the existence of the summons pertaining to an illicit de facto relationship would not have been brought to the attention of the other party to the alleged illicit relationship, and through him to [the applicant].
165. [The applicant’s] responses to my line of questioning pertaining to her de facto relationship would have inevitably led her to mention the existence of this document and the verdict to which it relates if it was genuine. I do not accept the submission that security concerns have delayed the provision of the document. No explanation is offered as to how the document can now be provided, and even if the document could not have been transmitted to Australia, I do not accept that [the applicant] would not have been made aware of its existence or content prior to the hearing before the Tribunal.

Ground 1

The first ground of review is expressed thus:
1. That in respect of the applicant’s claim to complementary protection under section 36(2)(aa) of the Migration Act the tribunal fell into jurisdictional error in that the member asked himself the wrong question and did not answer the statutory question.
Particulars
In paragraph 180 of its Statement of Decision and Reasons the tribunal member made a finding that he did not have substantial grounds for believing that on return to Iran the applicant would receive 99 lashes, when the statute required him to determine only whether he had substantial grounds for believing that on return to Iran the applicant would be at real risk of receiving 99 lashes.
Section 36(2)(aa) of the Act relevantly provides:
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
Significant harm is defined in s.36(2A) of the Act thus:
(2A) A non-citizen will suffer significant harm if:
(a)     the non-citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non-citizen; or
(c)     the non-citizen will be subjected to torture; or
(d)     the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non-citizen will be subjected to degrading treatment or punishment.
The applicant’s claim to complementary protection was twofold. The first aspect of this claim related to the treatment she might receive if she was returned to Iran by reason of her involvement in the Baha’i faith. But, the tribunal’s credit findings concerning the applicant’s involvement in the Baha’i faith were sufficient for it to dispose of this aspect of the complementary protection claim. Given that the tribunal did not accept her claims about those matters, the tribunal’s rejection of her claim to complementary protection based upon them was inevitable.

The tribunal’s finding that the applicant was not credible and her essential claims untrue is a finding of fact par excellence: Re MIMA; ex parte Durairajasingham (2000) 68 ALR 407 (HCA/McHugh J) at [67]. The tribunal’s credit findings were closely reasoned and well explained in its reasons for decision. The findings were open to it for the reasons it gives. This Court cannot review the merits of the tribunal’s decision: MIEA v WuShan Liang (1996) 185 CLR 259 at 272; MIMA v Eshetu (1999) 197 CLR 611.
The second aspect of the claim to complementary protection arose from the purported court order sentencing the applicant to 99 lashes for adultery. However, the finding made by the tribunal in relation to the authenticity of the purported court order was sufficient for it to dispose of the second aspect of this claim. The tribunal said of these matters:
179. In light of my reasoning, and for the same reasons as outlined above, I do not have substantial grounds for believing that as a necessary and foreseeable consequence of [the applicant] being removed from Australia to Iran that there is a real risk that she will suffer significant harm in connection with the claims put forward on her behalf. In this regard, I do not accept that being subject to questioning upon return to Iran would constitute or involve significant harm in circumstances where, as 1 have found, [the applicant] has no profile to attract adverse attention from the authorities .
180. In response to the express submission that the verdict of 99 lashes would constitute significant harm (the categories of cruel or inhuman treatment or punishment, degrading treatment or punishment, and torture were invoked) I have found that document does not genuinely reflect events that have taken place in Iran. It follows that I do not have substantial grounds for believing that such treatment will be inflicted on [the applicant] as a necessary and foreseeable consequence of [the applicant] being removed from Australia to Iran.
The applicant submits that the tribunal fell into jurisdictional error because it asked the wrong question and did not answer the statutory question posed for its consideration.
The applicant submits that the sentence within the tribunal’s reasons: “It follows that I do not have substantial grounds for believing that such treatment will be inflicted on [the applicant]...” demonstrates that the tribunal did not understand that the appropriate question was whether “there is a real risk that the [applicant] will suffer significant harm” if returned to Iran. The tribunal, the applicant submits, asked and answered a different and irrelevant question, namely whether there were “substantial grounds for believing” that the applicant would in fact suffer significant harm.
The applicant submits that the test applied by the tribunal involves a higher standard of satisfaction than does the statutory test set out in s.36(2)(aa). She suggests that it places a greater burden of proof on and demands much more evidence from the applicant than the “real risk” question posed by the legislation. As the applicant’s written submissions put it: “Being at risk of 99 lashes and ‘having substantial grounds for believing’ that you will in fact receive 99 lashes are two different things”. The statute, the applicant submits, is concerned with protection from real risks and not probabilities.
In my view however, no error on the part of the tribunal is made out by this ground. The tribunal’s reasons must:
1. …be read as a whole. They must be considered fairly. It is erroneous to adopt a narrow approach, combing through the words of the decision-maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law.
2. This admonition has particular application to the review of decisions which, by law, are committed to lay decision-makers, i.e. tribunals, administrators and others. This is not to condone double standards between the reasons and decisions of legally qualified persons and others. It is simply to recognise the fact that where, by law, a decision is to be made by a person with a different, non-legal expertise, or no special expertise, a different mode of expression of the decision may follow. It must be taken to have been contemplated by the lawmaker.
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (above) at p. 291.
Read in context, it is clear that the tribunal was aware of the law to be applied. The tribunal paraphrased, correctly, ss.36(2)(aa) and 36(2A) in the reasons for decision at paragraphs 16 – 18 as follows:
16. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
17. ‘Significant harm.’ for these purposes is exhaustively defined in s.36(2A): s.5(1 ). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
18. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
The repeated and correct statements of the test by the tribunal at paragraphs [16], [179] and [181] of its reasons demonstrate that the tribunal understood the relevant test. At [181] of the reasons for decision the tribunal said:
181. I acknowledge the country information referred to by [the applicant’s] representative in the written submission addressing complementary protection dated 14 January 2013 and am conscious that there are many examples of acts that would constitute ‘serious harm’ that have been documented in respect of Iran, however as I have rejected the applicant’s claims for reasons outlined above, I have no evidence to justify a conclusion that that as a necessary and foreseeable consequence of [the applicant] being removed from Australia to Iran that there is a real risk that she will suffer significant harm.
That passage demonstrates that the tribunal turned its mind to the relevant test. The tribunal answered the statutory question of real risk, rather than the question of probable risk as the applicant contends. I accept at once that they are two separate concepts. But, the tribunal applied the correct test. The earlier reference in paragraph [180] that “It follows that I do not have substantial grounds for believing that such treatment will be inflicted on [the applicant]...” was a reference to the findings of fact and credibility that the tribunal had made about the applicant’s claims concerning the verdict of 99 lashes against her and the document in which that was purportedly recorded.
Aside from the purported court verdict against the applicant, the tribunal separately considered the evidence about the applicant’s fear of harm in Iran by reason of her relationship status. In paragraph [103] of its reasons, the tribunal recounts, accurately, the evidence given by the applicant to the tribunal:
103. [The applicant] said that divorced women in Iran are not respected. [The applicant] that (sic) it was difficult for her due to the way she dressed. Her clothing would make her stand out. Her neighbours in her building did not like her. She said that she once received a letter in her mailbox saying that if she continued behaving in the same manner that the security services would be informed. She confronted her neighbours but everybody denied the letter.
104. I asked [the applicant] why she had not mentioned this incident previously. She said that it was not something she worried about.
105. I asked [the applicant] directly if she feared harm in Iran on account of her de facto relationship or her status as a divorced woman. [the applicant] said she did not think it was an issue.
Then, having discounted the purported court order (at paragraph 161 of the reasons), the tribunal says:
163. In the course of [the applicant’s] hearing, I expressly asked her if her relationship with her de facto partner had ever caused her to fear harm. Her clear answer to me in the context of this question was that while the relationship was frowned upon, she did not fear any harm from it. She had told me that she had not previously mentioned receiving an anonymous note in her letter box about her behaviour in this regard because it was not an issue for her.
It is not any risk of harm that is relevant. It is only a real risk of significant harm to the applicant that will engage the relevant protection obligation. In circumstances where the tribunal did not accept the authenticity of the purported court order, and where the applicant did not suggest that she feared any harm from her de facto relationship or her status as a divorced woman, it was open to the tribunal to conclude, as a matter of fact, that there were no substantial grounds for believing that there was a real risk that such treatment would be inflicted on the applicant. In the context of the tribunal’s findings and reasons in this case that is, in substance, the finding made by the tribunal.
This ground fails.

Ground 2

Ground 2 is expressed as follows:
2. That in respect of the applicant’s claim to complementary protection under section 36(2)(aa) of the Migration Act the tribunal exceeded its jurisdiction by conducting a speculative and probabilistic assessment as to whether the laws of a foreign country would be enforced against the applicant.
The applicant argues that it was squarely before the tribunal that she alleged that she was at risk of significant harm by reference to the fact that she had been in a de facto relationship; the significant harm alleged was 99 lashes; the fact that she had “committed” the offence for which 99 lashes was the penalty was not in dispute and the tribunal made no finding to the contrary.
And so it was. By a submission dated 28 March, 2013 from the applicant’s lawyers (received after the tribunal’s hearing), the applicant indicated that she had received information from Iran that was said to have greatly increased her concern relating to her safety if returned to Iran. That information was to the effect that she had been found guilty of breaching Article 637 of the Iranian Penal Code in that she had been involved in an “illicit relationship beyond adultery” (that is, she had a de facto partner). She had apparently been sentenced to 99 lashes.
In its reasons, the tribunal records that under questioning, the applicant said that she had never encountered any threats of harm due to her de facto relationship but that it was frowned upon by the community, that her mode of dress made her stand out and she once received a letter in her mail box saying that if she continued behaving in the same manner the security services would be notified. She told the tribunal that she did not fear harm in Iran on account of her de facto relationship.
The applicant submits that once it was accepted by the tribunal that the applicant was a member of the social group “Iranian women involved in relationships with members of the opposite sex outside marriage” the tribunal had no option but to accept that the applicant was at risk of being prosecuted and convicted and receiving the penalty of 99 lashes. The applicant argues that to suggest that prosecutions are rare, and that at the time of the hearing the applicant did not fear that she would be prosecuted is completely irrelevant to the question of whether she was at real risk of prosecution.
She further argues that without more, the fact that the applicant was in a relationship that is prohibited by law in Iran and is punishable by 99 lashes constitutes a “real risk” that she will suffer harm if returned to Iran. The risk of harm would come from, and only from, “being removed from Australia to the receiving country”.
The applicant submits that the tribunal exceeded its jurisdiction by going behind the fact that she was liable to 99 lashes under Iranian law, and conducting a speculative consideration of the extent to which the particular law was in fact enforced in Iran generally and might be enforced in the applicant’s case in particular.
The applicant’s argument culminates in the conclusion that in failing to determine the matter on the basis of the fact that the applicant was as a matter of law liable to suffer 99 lashes, and instead conducting a speculative consideration of “the unknowable”, namely whether the law of a foreign country was likely to be enforced, the tribunal fell into jurisdictional error. She further argues that once the Tribunal had accepted that the applicant was a person who was blameless by the canons of Australian law, but was by Iranian law a law breaker liable for a punishment of 99 lashes, it had no further discretion and was obliged to recognise the applicant was entitled to protection under s.36(2)(aa).
The applicant’s argument, however, misstates the test. The tribunal must carry out an assessment of the relevant identified risk so as to determine whether the risk is real for the purposes of s.36(2)(aa). That is what it did. It was obliged to conduct such an assessment by the Act. It was open to the tribunal to not be satisfied that there was a real risk of significant harm based on its rejection of the alleged court order and the applicant’s own evidence that, aside from the court order, she did not fear any harm arising from her de facto relationship.
Moreover, it was open to the tribunal to reject the proposition that there was a real risk of significant harm notwithstanding the fact that the applicant was in a relationship that is prohibited by law in Iran and is punishable by 99 lashes. It does not necessarily follow, in my view, that once the applicant establishes the relevant law creating the “offence” and the elements of the “offence” there must be a finding that there is a real risk for the purposes of s.36(2)(aa). The tribunal must still make an assessment based upon the information before it about the risk and conclude that it is real.
That is what the tribunal did in this case. It concluded the issue against the applicant for the clearly articulated reasons that it gave. I accept that reasonable minds could differ about the conclusion that the tribunal arrived at on this issue, but in my view, the tribunal’s reasoning cannot be said to be illogical or unreasonable. In those circumstances the conclusion is unassailable: MIAC v SZMDS (2010) 240 CLR 11 at [78] per Heydon J, [130-131] per Crennan and Bell JJ; SZOOR v MIAC (2012) 102 FCR 1 at [15] per Rares J, [85] per McKerracher J.
I accept the first respondent’s submission that this ground seeks merits review, and so must fail.

Ground 3

Ground three is in the following terms:
3. That the tribunal failed to give the applicant a fair hearing in respect of its decision to disregard a document, namely a document presented to the tribunal as a scanned copy of an Order of the Public and Revolutionary Court of Teheran Pars rehearsing that she had been found guilty of a breach of Article 637 of the Penal Code of Iran and sentencing her to 99 lashes.
Particulars
The tribunal failed to have regard to a departmental policy, namely “Australian Government Refugee Review Tribunal, Guidance on the assessment of credibility”, paragraph 9.5 which prescribes that if the tribunal is of the opinion that a document is not genuine the tribunal should give the applicant the opportunity to address the tribunal’s concerns.
The finding of the tribunal in respect of this document was not based on evidence relating to the document itself but on the tribunal’s assessment of the applicant’s credibility. I have set out what the tribunal said in respect of this document above.
The applicant submits that before reaching an adverse conclusion regarding the document, the tribunal was obliged to hear the applicant in respect of the tribunal’s concerns as to its genuineness. In this regard, she argues that the tribunal failed to act in accordance with a departmental policy which prescribes that if the tribunal is of the view that a submitted document is not genuine, and the document is material to an applicant’s claim, the tribunal should give the applicant an opportunity to address the tribunal’s concerns.
The applicant points out that in Re Drake and Minister for Immigration(No.2) [1979] ALD 634 at 645 Brennan J pointed out that:
When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case.
The applicant submits that given the critical nature of the particular piece of evidence, the tribunal ought to have applied the departmental policy “with exactitude”.
But the failure to apply departmental policy is not a jurisdictional error. The tribunal is not bound to apply or adopt departmental policy. As Lucev FM (as his Honour then was) pointed out in Li v Minister for Immigration & Anor [2010] FMCA 583:
22. The relevant principles concerning consideration of policy guidelines in administrative decision-making are succinctly stated in Hneidi v Minister for Immigration and Citizenship as follows:
41 For present purposes, four relevant propositions emerge .... The first is that the decision-maker is entitled, in the absence of specifically defined criteria for the exercise of the discretion, to take into account “government policy”. Thus, where the Tribunal is not under a statutory duty to regard itself as bound by the policy, it is entitled to treat the policy as a relevant consideration.
42 Second, in the absence of a specific statutory provision (which would no doubt be unusual) the Tribunal is not entitled to abdicate its function of determining whether the decision under review was, on the material before the Tribunal, the correct or preferable one, to a more passive function of determining whether the decision conformed to the relevant policy.
43 Third, it is not desirable to frame a general statement of the part which government policy should ordinarily play in the determinations of the Tribunal. That is a matter for the Tribunal to determine in the context of the particular case, informed by considerations of the desirability of consistency of administrative decisions but balanced against the ideal of justice in the individual case.
44 Fourth, the borderline between cases in which the Tribunal has abdicated its functions to those of an unthinking application of “government or Ministerial policy” to the facts may sometimes be blurred. But where the Tribunal considers that the correct or preferable decision results from the application of such a policy, it should make it clear that:
“... it has considered the propriety of the particular policy and expressly indicates the considerations which have led it to that conclusion”
23. Both the Federal Court and this Court have observed that:
a. the policy set out in the PAM in relation to establishing “exceptional circumstances” is not binding and is no more than an advisory administrative guide in relation to the application of the relevant provisions of the legislation: El Ess v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 142 FCR 43 at 55 per Gray J; Vishnumolakala v Minister for Immigration and Multicultural Affairs [2006] FMCA 1209 at paras 27-28 per Smith FM ; and
b. failure to apply the policy set out in the PAM does not constitute an error of law, and therefore cannot constitute jurisdictional error: El Ess FCR at 55 per Gray J; Rashid v Minister for Immigration and Citizenship [2007] FCAFC 25 at para.36 per Heerey, Stone and Edmonds JJ; Vishnumolakala at para 28 per Smith FM.

As the first respondent submits, the real complaint appears to be that the tribunal did not hold a second hearing to inform the applicant that it may not accept the veracity of the document containing the alleged verdict of 99 lashes submitted after the hearing. I accept the first respondent’s submission that there is no requirement in the Act that the tribunal must hold a second hearing in such circumstances.
Moreover, there is no general rule that the tribunal cannot find a document not to be genuine without first putting those concerns to an applicant: VAAD v MIMIA [2005] FCAFC 117 at [64]; MIAC v SZMOK (2009) 257 ALR 427 at [68].
Here, the tribunal had raised its concerns about the credibility of the applicant’s claims with her in very clear terms, both during the course of the hearing and afterwards by way of a s.424A letter. It is clear from the reasons of the tribunal that it gave consideration to the relevant document, but rejected its authenticity, largely based upon the view that it had come to concerning the credit of the applicant and her claims. The tribunal was entitled to adopt that course: Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 455 at [29] – [39].
This ground fails.

Ground 4

Ground 4 is in the following terms:
4. That the tribunal’s decision to give no weight to the document referred to in paragraph 3 above was unreasonable.
Particulars
In paragraph 160 of his Statement of Decision and Reasons the member stated that in the context of his findings regarding the applicant’s credibility her evidence regarding the document could not be relied upon and so he gave no weight to the document: however significant evidence about the document came from her solicitor whose credibility was not questioned by the tribunal.
The applicant argues that the tribunal dismissed the document purely on the basis of having made an adverse finding of credibility against the applicant. However, some of the evidence relating to the document came not from the applicant but from the solicitor for the applicant, whose credibility was not in question. In his letter to the tribunal of 28 March, 2013 in response to the tribunal’s correspondence of 8 March, 2013 following the hearing, the applicant’s solicitor writes:
Since the Refugee Review Tribunal’s hearing (the applicant) has provided further information .... This information was relayed to us some time ago, however (the applicant) was not able to provide evidence of this information due to security reasons associated with strict monitoring of communications in Iran. (The applicant’s) family were afraid to send this document from Iran and we have only recently been able to obtain a copy of this document.
The applicant argues that her solicitor’s evidence bears directly on the tribunal’s credibility findings on this point. The tribunal refers to the fact that at the hearing he had asked the applicant whether she had ever feared harm as a result of her de facto relationship and she had replied in the negative. But, she says, that was at the hearing. The relevant information became available after the hearing.
The applicant further submits that her solicitor was acting on instructions and was not giving first hand evidence. Her written submissions continue: “However the fact that the document was not sent to the tribunal by the applicant but by a legal practitioner bound by the duties of an officer of the court, underlines the fact that the document has a life of its own, independent of the tribunal’s finding regarding the credibility of the applicant. The credibility of the applicant actually has no bearing on the empirically verifiable question of whether the document is genuine”.
The applicant submits that it is unreasonable to make a final determination of the validity of a document on the basis of a credibility assessment of its bearer. This is especially so when the alternative is “as simple as to order an investigation and/or further examine the applicant, and when the consequences of being wrong are 99 lashes”.
The applicant argues that in the present case, the tribunal’s error might be said to be that the tribunal gave too much weight to the perceived lack of credibility of the tenderer of the document and too little weight to the need to address the validity of the document itself.
Further, the applicant argues that the tribunal confused the issue by referring to a “summons” rather than recognising the precise nature of the document that was placed before it, that is, a document “about an in absentia verdict and sentence”. That confusion, it is argued, led the tribunal to make assumptions that were not open on the materials before the tribunal. Those assumptions included that the Revolutionary Court of Teheran Pars:
a)observes the principles of natural justice;
b)advises relevant witnesses before its deliberations or even after; or
c)publicises its determinations with any promptitude or at any time that does not suit the convenience of the secret police.
The applicant submits that the reference to a summons when what is in contention is a sentence is an error which resembles unreasonableness.
However, I have set out above, the authorities that establish that the tribunal was entitled to reject the authenticity of the document in the way that it did: Minister for Immigration and Citizenship v SZNSP (above) at [24-40] per North and Lander JJ. It is clear from the tribunal’s reasons that it understood the nature of the document and that it recorded a sentence that had been imposed upon the applicant (see for example [136] and [160] of the reasons for decision). To describe it as a summons may have been incorrect, but nothing turns upon that given that the tribunal clearly understood the nature and purport of the document.
Moreover, even if the approach to the authenticity of the verdict document taken by the tribunal was incorrect, no unreasonableness in the relevant sense is established. The unreasonableness must go to the decision reached by the tribunal as to its level of satisfaction for the purposes of the Act. In Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 Crennan and Bell JJ, at 643, accepted a submission that:
...not every instance of illogicality or irrationality in reasoning could give rise to jurisdictional error,
... if illogicality or irrationality occurs at the point of satisfaction (for the purposes of s 65 of the [Migration] Act) then this is a jurisdictional fact and a jurisdictional error is established.
Their Honours, at pp. 647 – 648 added that “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean that the decision to which the tribunal came, in relation to the state of satisfaction required under s.65, is one at which no rational or logical decision maker could arrive on the same evidence.
In my view, this ground does not reveal jurisdictional error on the part of the tribunal, but rather seeks to take issue with the merits of the tribunal’s findings.

Ground 6

Ground 6 is in the following terms:
6. That the tribunal did not take into account a relevant consideration in that it rehearsed but did not consider (even to the point of expressing that it rejected the testimony) evidence of systematic harassment of the applicant by Iranian authorities.
Particulars
The Claimant submitted that in the past, she had been detained for involvement with a protest (and was required to sign a form stating that she would not participate in future protests) and was subject to harsh treatment for violating Islamic dress codes. While the member made a determination as to the applicant’s credibility, he did not make a determination as to whether her claims with regards to the past are true, or whether they gave rise for the applicant fearing harm for the purposes of the complementary protection regime, and in this regard failed to comply with paragraph 2.5 of the policy “Australian Government-Refugee Review Tribunal, Guidance on the assessment of credibility.”
The applicant submitted that the material before the tribunal demonstrated that in the past she had been detained for involvement with a protest (and was required to sign a form stating that she would not participate in future protests) and was subject to harsh treatment for violating Islamic dress codes. She submits that while no claim is made that the applicant is a major political activist, manifestly this was a claim of political discrimination.
The applicant further argues that:
a)while the tribunal made a determination as to the applicant’s credibility generally, such a finding did not absolve the tribunal from considering the discrete elements of the evidence on their merits. In this case, the tribunal did not make a determination as to whether the applicant’s claims with regards to “harassment on the basis of her political activity and lifestyle” are true, or whether they constitute reason for the applicant fearing harm for the purposes of the complementary protection regime; and
b)the failure to address this claim of discrimination is important because it is referable to a convention reason and because it involves a claim of detention as well as repeated harassment. It therefore amounts to an unaddressed claim of persecution within the meaning of s.91R(2)(a) and (b) of the Act.
The material in the Court Book reveals that the applicant referred to the matters set out above in her protection visa application. She also mentioned them to the tribunal member. The tribunal recorded that at paragraph [40] of its reasons for decision:
40. [The applicant] also mentioned that she had attended the 2009 presidential election protests and had been beaten and detained by the Basij. She said her details were taken and she had to sign a form stating she would not participate in protests again. The applicant also stated she had been subjected to harsh treatment in the past by the Basij for violating the Islamic dress code.
The first respondent submits that on a fair reading, the tribunal at paragraph [148] must be taken to have rejected the matters mentioned at paragraph [40] of its reasons. I accept that submission. In doing so, it dealt with those claims by the applicant.
However, if that interpretation of paragraph [148] is erroneous, it is nonetheless clear that the tribunal has not fallen into error by not dealing with those assertions because:
a)It is not at all clear that these matters amounted to a claim of “political discrimination” as the applicant puts it. I accept the first respondent’s submission that on no view can there be said to have been a substantial, clearly articulated argument relying upon established facts that the applicant claimed to fear harm in Iran for the reasons mentioned at [40]. Her claims were squarely based upon her conversion to the Baha’i faith.
b)The tribunal does not need to refer to every piece of evidence or every contention in its reasons: ApplicantWAEE v MIMIA (2003) 75 ALD 630 at [46].
This ground, too, has no merit.

Conclusion

There is no demonstrated jurisdictional error by the tribunal. The tribunal’s decision is a “privative clause decision” within s.474 of the Act.
The application must be dismissed with costs.

I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 17 July 2014.

Associate:

Date: 17 July 2014