BZAED v Minister for Immigration and Border Protection

[2015] FCA 436

FEDERAL COURT OF AUSTRALIA

BZAED v Minister for Immigration and Border Protection [2015] FCA 436

Citation:	BZAED v Minister for Immigration and Border Protection [2015] FCA 436
Appeal from:	BZAED v Minister for Immigration and Border Protection & Anor [2014] FCCA 1531
Parties:	BZAED v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL
File number(s):	QUD 418 of 2014
Judge(s):	GREENWOOD J
Date of judgment:	11 May 2015
Catchwords:	MIGRATION – consideration of whether the Refugee Review Tribunal fell into jurisdiction error by failing to properly comprehend the evidence of the appellant as applicant before the Tribunal – consideration of whether the Tribunal fell into jurisdictional error by failing to have proper regard to a certificate purporting to be an order made in absentia by an Iranian court exposing the appellant to punishment of a lashing
Legislation:	Migration Act 1958 (Cth), ss 36(2)(aa), 36(2A), 422B, 424A, 427(1)
Cases cited:	Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 – cited and quoted Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 - cited Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 – cited Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 – cited Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 – cited
Date of hearing:	31 November 2014
Place:	Brisbane
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	75
Counsel for the Appellant:	Mr D O’Gorman SC, Mr D Wells
Solicitor for the Appellant:	Mr A Francis, Refugee & Immigration Legal Service
Counsel for the Respondents:	Mr T Reilly
Solicitor for the Respondents:	Ms K Slack, Sparke Helmore Lawyers

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 418 of 2014

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

BZAED
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GREENWOOD J
DATE OF ORDER:	11 MAY 2015
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.The application for leave to amend the notice of appeal so as to contend that the Refugee Review Tribunal fell into jurisdictional error in misunderstanding the appellant’s evidence as to a fear of harm should she return to the country of her citizenship is refused. 

2.The appeal is dismissed. 

3.The appellant pay the costs of the first respondent of and incidental to the appeal. 

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 418 of 2014

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

BZAED
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GREENWOOD J
DATE:	11 MAY 2015
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. These proceedings concern an appeal from orders of the Federal Circuit Court of Australia dismissing an application for the issue of the constitutional writs to correct contended jurisdictional error concerning a decision of the Refugee Review Tribunal (the “Tribunal”) affirming a decision of the delegate of the Minister for Immigration and Border Protection (the “Minister”) to refuse the appellant a protection visa. 

2. By her application before the Court below, the appellant relied upon seven grounds of contended jurisdictional error.  Before this Court, the appellant relied upon four grounds of contended error on the part of the primary judge below.  However, the appellant, by written submissions on her behalf made by Mr O’Gorman SC and Mr Wells, and by oral submissions by her counsel, reduced the grounds of appeal to two questions.  I will return to the formulation of the two grounds of appeal pressed before this Court, shortly. 

3. The appellant, however, did not formally abandon the grounds of appeal recited in the notice of appeal.  Nevertheless, the appellant’s treatment, by her counsel, of the four grounds of appeal recited in the notice of appeal should be noted. 

4. Each of the four grounds is expressed in reasonably general terms.  Ground 1 is that the primary judge erred by failing to find that the Tribunal failed to take account of a relevant consideration, namely, that the appellant “could be subject to lashing if [she] returned to Iran”.  Ground 2 is that the primary judge erred by failing to find that the Tribunal failed to have regard to evidence put to the Tribunal that the appellant “could be subject to lashing if [she] returned to Iran”.  Ground 3 is that the primary judge erred by misconstruing the meaning of the term “significant harm” in s 36(2)(aa) of the Migration Act 1958 (Cth) (the “Act”). Ground 4 is that the primary judge erred by dismissing Grounds 1, 2, 4 and 6 of the appellant’s grounds of review without considering, so far as each of those grounds are concerned, the appellant’s evidence given before the Tribunal that she “could be subject to lashing if [she] returned to Iran”. 

5. No greater particularity of each ground is given. 

6. Each ground, however, seeks to engage with a contended relevant consideration which was said to be unaddressed by the Tribunal and contended evidence of that consideration (upon which it is said the Tribunal failed to act), namely, that the appellant by reason of her conduct in Iran, could be exposed to 99 lashes being administered to her by Iranian authorities should she return to Iran. 

7. At the outset of the oral argument, counsel for the appellant sought leave to amend Ground 4 so as to contend that the primary judge fell into error by also dismissing Ground 3 of the grounds relied upon before the primary judge.  Of the seven grounds recited in the review application before the Federal Circuit Court, Grounds 5 and 7 were abandoned.  Ground 3, however, was pressed.  Leave was granted by this Court to amend Ground 4 of the notice of appeal to add, as a further ground of error on the part of the primary judge, the dismissal of Ground 3 in the sense contended for by Ground 4 before this Court.  Leave was granted largely on the basis of the contention for the appellant that Ground 4, as drawn, simply represented a mis‑description whereas the appellant always intended to challenge on the ground of error as recited in Ground 4 of the notice of appeal, the dismissal of Ground 3 by the primary judge.

8. Counsel for the Minister, Mr Reilly, did not oppose the amendment having regard to two factors. 

9. First, if the formulation of Ground 4 was simply a matter of mis‑description, no objection was taken. 

10. Second, and more importantly, amending Ground 4 to add a reference to Ground 3 before the primary judge was of no moment so far as the Minister was concerned because all four grounds (amended or not as to Ground 4) were necessarily to be seen, by reason of the only contentions addressed in the appellant’s written submissions, as the expression of, or all reduced to, the two grounds of appeal, so addressed in those submissions.  Mr O’Gorman SC in oral argument accepted that proposition as correctly stating the position now adopted by the appellant:  see T, p 3, lns 21‑23; lns 38‑41; T, p 4, lns 1‑7; lns 18‑28; T, p 31, lns 25‑33. 

11. As to the two issues, Mr O’Gorman SC put the issues this way at T, p 9, lns 12‑29: 

    Simply put, there are two aspects of the [T]ribunal’s decision that we say constitutes legal [jurisdictional] error.

    The first relates to its treatment of the certificate indicating that the appellant had been sentenced to 99 lashes for an illicit relationship, if I could use that hopefully neutral term. 

    And the second relates to the evidence of the [appellant before the Tribunal] to the effect that she didn’t fear for her life as a result of the de facto relationship should she return to Iran but, rather, the Tribunal erred in saying she didn’t fear harm. 

    We say there is a great distinction between [a fear of] death and [a fear of] harm. 

    [emphasis added]

12. The Minister contends, correctly, that the question now raised of whether the Tribunal fell into jurisdictional error by a contended misunderstanding of the appellant’s evidence about a fear of harm as compared with a fear for her life (should she return to Iran) due to her de facto relationship in Iran, was not raised as a ground of the application for judicial review before the primary judge.  Thus, leave would be necessary to now agitate the new ground on appeal. 

13. The contended point of confusion on the part of the Tribunal upon which the appellant now seeks to rely is the contention that in oral evidence before the Tribunal the appellant said that should she return to Iran she could not say that her life would be in danger because of her de facto relationship or her status as a divorced woman but that, contrary to the contended position on her evidence adopted by the Tribunal (and the primary judge), the appellant did not say, suggest or accept that she did not fear harm by reason of those factors (the de facto relationship and her status as a divorced woman).  Rather, the appellant, it is said, gave evidence that by reason of those two factors just mentioned the Iranian authorities “probably would have administered lashes because of it”:  see the affidavit of Angus James Francis, Annexure AJF3, Transcript of Evidence before the Tribunal, 18 January 2013, p 3. 

14. As to Mr Francis’s affidavit, the appellant sought leave to rely upon further evidence in the form of Mr Francis’s affidavit.  That affidavit annexes a transcript of interview between the appellant and an officer of the Department; a copy of an interview between the appellant and a delegate of the Minister dated 10 August 2012; a copy of the transcript of the Tribunal hearing; and a copy of a transcript of proceedings before the Federal Circuit Court of Australia.  Although there was some argument about the question of leave to rely upon the affidavit of Mr Francis, ultimately the Minister’s position was that no objection was taken to the affidavit and thus leave was given. 

15. As to the question of whether leave is to be granted to enable the appellant to now agitate this ground of contended error on appeal, the Minister takes the position that ultimately whether leave is to be granted or not turns on the underlying merits of the contention.  The Minister contends that once the contention is examined it can be seen that the contended ground has no merits and thus leave ought not to be granted.  I propose to examine the underlying merits of the contended ground and determine the question of leave on the footing of the view I form about the underlying merits of the ground. 

16. Since all of the grounds raised by the notice of appeal as amended are now reduced to the two questions as framed by Mr O’Gorman SC (one of which requires leave) it is not necessary to examine in detail the treatment by the primary judge of each of Grounds 1, 2, 3, 4 and 6 of the grounds agitated before the primary judge. 

17. The questions in issue on appeal are framed by the two contentions formulated by Mr O’Gorman SC. 

18. Put simply, the background factual matters of relevance are these. 

19. The appellant is a citizen of Iran. 

20. She was born on 19 June 1975. 

21. She arrived on Christmas Island on 19 June 2012. 

22. An entry interview was conducted with her on 25 June 2012. 

23. On 2 August 2012, the Minister made a determination pursuant to s 46A(2) of the Act that enabled the appellant to make an application for a protection visa under the Act.

24. On 2 August 2012, the appellant lodged an application for a protection visa asserting a well‑founded fear of persecution for the particular Convention reasons identified in the application.  A record of interview was conducted with the appellant on 10 August 2012. 

25. The Minister’s delegate refused to grant the appellant a protection visa on the footing that the appellant’s claims were not credible. 

26. The appellant applied to the Tribunal for review of the delegate’s decision.  A hearing took place before the Tribunal on 18 January 2013.  That hearing was adjourned and resumed on 7 February 2013.  A transcript of the hearing before the Tribunal is annexed to Mr Francis’s affidavit as AJF3.  The transcript is dated 18 January 2013 and at p 7 there is a reference to the adjournment. 

27. The Tribunal in its reasons accepted that the appellant is an Iranian citizen and that she has no right to enter and reside in any third country.  The Tribunal expressed in its reasons serious concerns about the truthfulness and credibility of the evidence given by the appellant.  As to that matter, the Tribunal made these observations (among others):

    148.After much reflection, I have concluded that I am unable to accept any of the material particulars of [the appellant’s] claims relating to circumstances and events in Iran.  My concerns as to the credibility of the applicant’s account, and the account of [two other individuals], are too great for me to accept any of their evidence relating to [the appellant’s] interest and participation in a Baha’i meeting group, and the discovery of these activities by Iranian authorities. 

    …

    151.Primarily, and of itself conclusive of my assessment of the credibility of the witnesses (including [the appellant]), I rely on the fact that critical aspects of the narrative itself have changed from the time that [the appellant] 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 appellant] left Iran including whether it was done legally or illegally. 

    …

    154.Other aspects of the evidence, beyond the fact that it was changed, reinforce my concerns as to the credibility and truthfulness of the narrative as a whole.  I do not consider that any of the matters that follow, of themselves, would have led to the finding that I have reached about [Ms X, Ms Y and the appellant’s] credibility, but in combination with my primary concern about the earlier acknowledged provision of untruthful evidence about core aspects of the claim, and as a result of the accumulation of these other “secondary” concerns, I do not have any doubt that the evidence I have been given about circumstances in Iran is untruthful. 

    …

    [emphasis added]

28. As to the question of the contended confusion about the true appreciation of the evidence given by the appellant to the Tribunal on the question of a fear of harm or a fear for her life, it is important to have regard to the evidence of the appellant reflected in the transcript of the Tribunal’s proceeding on 18 January 2013.  In the course of the hearing the following exchange occurred between the appellant and the Tribunal member, Mr Kennedy:

    Tribunal:I noticed that you mentioned in your entry claims that you had a de facto relationship after your divorce?

    Appellant:Yes, I did have a boyfriend that we kind of lived together. 

    Tribunal:I understand that’s probably forbidden by the Iranian Islamic authorities, is that right?

    Appellant:Yes, that’s correct. 

    Tribunal:If I have regard to popular culture from Iran, movies and things like that, I understand that even though it’s forbidden, it’s not that unusual in Tehran? 

    Appellant:It probably is common in some ways, it happens, but even in Tehran people frown upon this kind of thing.  And also being illegal, it’s not something people tend to do.

    Tribunal:Your de facto partner, your boyfriend, was he a single person?

    Appellant:Yes. 

    Tribunal:Did you ever encounter any threat or face any harm in relation to your de facto relationship?

    Appellant:It wasn’t that I was threatened, but in the community I was frowned upon – constantly – generally in Iran, women who have been divorced, they are not very respected.  And especially for me, because of the type clothing I was wearing, the colour of my hair, my makeup … I would stand out.  In the building that I was living in, the neighbours they all against me and they didn’t like me very much.  And one day when I went away and [came] back there was a letter in my house.  And it said if you continue behaving and having this kind of appearance and behaviour, we are going to let the security forces know.  And when I chased it up and tried to find out who had done it everybody denied it. 

    Tribunal:Have you ever mentioned that to anyone in Australia from the Department of Immigration before today?

    Appellant:Ah, no I didn’t.  I brought it up now just some example to explain.  It wasn’t something that – I didn’t really worry about their threats.  It didn’t bother me.  It was an empty threat really. 

    Tribunal:If you were to return to Iran, do you fear harm on account of your de facto relationship or your status as a divorced woman?

    Appellant:No, I don’t know – I don’t think it would be an issue – if they would have arrested me they probably would have administered lashes because of it – but, no, I can’t say my life would be in danger because of it. 

    Tribunal:I imagine if the threat was real, you would have faced it before now?

    Appellant:Yeah, that’s right.  Even though that the neighbours had made that threat, it didn’t bother me.  I continued having my relationship with my boyfriend.  It wasn’t something that I was concerned [about]. 

29. At paras 101 to 105, the Tribunal addresses the evidence set out at [28] of these reasons.  At para 101, the Tribunal describes the first three questions and the appellant’s answers as set out at [28] of these reasons.  At para 102, the Tribunal describes the question put to the appellant of whether she had ever encountered any threat or had ever faced any harm by reason of her de facto relationship.  At that paragraph, the Tribunal says that the appellant had said that she “had never encountered any threats or harm, but it was frowned upon in the community”.  The appellant said in her evidence in answer to that question that she had not been threatened by reason of her de facto relationship but that the conduct was frowned upon in the community for the reasons she identifies. 

30. In terms, the appellant did not say in answer to Mr Kennedy’s question that she did not face any harm.  If, however, the appellant’s position was that she had not been threatened by reason of her de facto relationship, it seems to me that it was open to the Tribunal to conclude on the basis of her answer (taken together with the matters at [32] and [33] of these reasons) that she did not “face any harm” by reason of her de facto relationship.  If she perceived there to be no threats of harm made to her arising out of her de facto relationship, it seems open to the Tribunal to conclude that she was not facing any harm. 

31. At para 105, the Tribunal observes that the appellant was asked directly if she feared harm in Iran on account of her de facto relationship or her status as a divorced woman.  That paragraph seeks to identify the last and second last questions of the Tribunal put to the appellant as recited at [28] of these reasons. 

32. At para 105, the Tribunal says that the appellant “said she did not think it was an issue”.  The appellant’s answer was that she did not think the issue (of her de facto relationship or her status as a divorced woman) “would be an issue” should she return to Iran and then went on to observe that if she were to return to Iran and if “they [the Iranian authorities] would [arrest] me they probably would [administer] lashes because of it”.  In that sense, the appellant was recognising the possibility (in her view a probability) that upon the assumption that she returns to Iran and she is arrested, lashes would be administered to her, but she could not say that her life would be in danger because of the conduct. 

1. The question that led to that answer was (on the assumption of a return to Iran and arrest), “Do you fear harm on account of your de facto relationship or your status as a divorced woman?”  Immediately after the answer to that question as described above, the Tribunal returned to the question of a threat which in context seems to be a threat of harm, and asks, “I imagine if the threat was real, you would have faced it before now?” [emphasis added].  In response, the appellant accepted that that was so and added that even though the neighbours had made a threat (of reporting her to the security forces), that threat “didn’t bother me” and “I continued having my relationship with my boyfriend”.  The appellant then added:  “It wasn’t something that I was concerned [about]”. 

2. At para 163, the Tribunal makes this observation:

   In the course of [the appellant’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 letterbox about her behaviour in this regard because it was not an issue for her. 
     [emphasis added]

3. At [41], the primary judge expressed an observation about the Tribunal’s comments concerning the question of whether the appellant faced harm.  The primary judge said this at [41]:

   … 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.  …

   [emphasis added]

4. The relevant statutory context is this. Section 36(2)(aa) provides that a criterion for a protection visa is that the applicant for the visa is a non‑citizen in Australia (other than a non‑citizen contemplated by s 36(2)(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 a non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm. 

5. Section 36(2A) is in these terms:

   (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. 

6. The appellant contends that the Tribunal misconceived her evidence and understood her evidence as a statement to the effect that she did not fear any harm as a result of her de facto relationship in Iran, should she return to Iran, when her evidence was that she did not fear for her life as a result of that relationship. The appellant contends that this error as to the evidence on the part of the Tribunal meant that the Tribunal did not consider the appellant’s claim that she would suffer harm if she returned to Iran and thus the Tribunal did not consider the integers of s 36(2)(aa) because it proceeded on the footing that the appellant was not asserting a real risk that she would suffer significant harm should she return to Iran. 

7. The appellant also says that the primary judge embraced that understanding of the evidence by the Tribunal and thus fell into error by failing to appreciate the error on the part of the Tribunal. 

8. There are two inter‑related issues that bear on this question.  The first is whether it was open to the Tribunal (standing in the shoes of the Minister) to conclude on all the evidence that it could not be satisfied that substantial grounds subsisted for believing that there existed a real risk that the appellant would suffer significant harm as a necessary and foreseeable consequence of her return to Iran. The Tribunal was unable to reach the statutory state of satisfaction required by s 36(2)(aa) because it considered, in part, that the appellant did not fear a real risk that she would suffer significant harm by reason of her de facto relationship in Iran (and the circumstance that she is a divorced woman). The second concerns the evidence in relation to the contention that she would suffer a lashing should she return to Iran, as the expression of that harm.

9. The second question raises the issue of the certificate. 

10. As already mentioned, the hearing before the Tribunal took place on 18 January 2013 and on 7 February 2013.  On 8 March 2013, the Tribunal wrote to the appellant setting out the particulars of information that the Tribunal considered would be the reason or at least part of the reason for affirming the decision under review and invited the appellant to respond or comment by 15 March 2013.  In response, the representative for the appellant sent an email to the Tribunal dated 28 March 2013 setting out a number of propositions on behalf of the appellant.  The appellant’s representatives also attached eight documents to a communication to the Tribunal. 

11. In the letter dated 28 March 2013, the appellant’s representative said this (among other things):

    Further Information

    Since the [Tribunal’s] hearing, [the appellant] has provided further information in relation to their protection visa application.  This information was relayed to us some time ago; however [the appellant] was not able to provide evidence of this information due to security reasons associated with strict monitoring of communications in Iran. 

    [The appellant’s] family were afraid to send this document from Iran and we have only recently been able to obtain this document.  We have enclosed a copy of the document and its translation with this submission.  [The appellant] had previously claimed that she was in a relationship with a man in Iran after her divorce from her husband.  [The appellant] had also claimed in her interview at the [Tribunal] that she was not popular with her neighbours because of this relationship. 

    Since leaving Iran, [the appellant] had received a court order in absentia sentencing her to 99 lashes.  The date of issue of the court order is 11 October 2012 after [the appellant] had left Iran.  According to the court order [the appellant] had been charged with having an “illicit relationship beyond adultery” meaning that it is not necessary to have a sexual relationship in order for her to be convicted, the mere fact that she was “friends” with this person was sufficient enough to receive a sentence in absentia. 
      [emphasis added]

12. The representative for the appellant then makes a number of observations about the possible relationship between the court order and the appellant’s interest in the Baha’i faith.  The letter attaches a document in Arabic and an English translation of the order.  The order recites as a heading “Judiciary of Islamic Republic of Iran”.  It recites a verdict number and a case number.  It recites a date of 11 October 2012.  It recites the claimants.  It recites the accused including the name of the appellant.  It contains a reference to:  “Investigation Authority of Branch 1081 Public Court of Tehran”.  The charge is recited in this way:  “Illicit relationship beyond adultery and reference to the suspicious contacts, and observing of some actions against the Islamic principles” [original emphasis]. 

13. The document then recites a “Court verdict”.  Having recited various matters the order concludes: 

    Therefore, based on the Article 637 of the Islamic Punishment Law, the court sentences the accused to 99 lashes.  This judgment is by default (in absentia) and can be appealed within 20 days in the appeal court of Tehran Province and after that, it can be followed up in the police station of Tehran Pars region, where the accused can be detained to execute the order with the presence of the representative of the attorney general. 

    Talebi

    Chief of the branch 1081 of the Public Criminal Court of Tehran

14. The order has a translator’s note in these terms:

    Based on the Article 637, illicit relationship beyond adultery is a bond between a man and a woman who commit illicit relationships or do not comply with such licentious beyond adultery.  This includes physical relationships, even non‑physical relationships which can range from a simple phone call or walk in the park starts to sleep and make love to the point where would not result in sex. 

15. The order bears what appears to be a signature and a handwritten date of 26 March 2013 which is presumably the translation date. 

16. The Tribunal dealt with this document in the following way having addressed at paras 148 to 159 questions relating to the credibility and truthfulness of the appellant’s evidence.  The Tribunal said this:

    160.In the context of this perception of [the appellant’s] evidence … 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. 

    …

    162.     I note the date of the document is translated to be 11 October 2012.

    163.     [See [34] of these reasons].

    164.I do not accept that if this document was genuine, that its existence would not have been brought to [the appellant’s] attention prior to the hearing.  [The appellant] 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 appellant]. 

    165.[The appellant’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 appellant] would not have been made aware of its existence or content prior to the hearing before the Tribunal. 

    [emphasis added]

17. Paragraph 163 which is quoted earlier in these reasons is, in the context of these findings, also important. 

18. At paras 160 to 165, the Tribunal reaches the findings recited above in the context of the Tribunal having asked the appellant whether her de facto relationship had ever caused her to encounter any threat or face any harm.  Although the appellant contends that the Tribunal inaccurately understood the appellant’s evidence in terms of harm as compared with a threat to her life, the Tribunal in these paragraphs is making the observation that the appellant failed to mention any question of a claim or summons giving rise to the order and further observes that it believed, or at least inferred, that the fact of these proceedings being on foot would have been brought to her attention. 

19. At para 175, the Tribunal observes that it has had regard to country information referred to in submissions on behalf of the appellant to the effect that relationships outside of marriage are rarely prosecuted in Tehran but that Iranian authorities may rely on such charges to target members of the Baha’i faith.  The Tribunal, however, observes that it does not accept that the appellant has a genuine interest in the Baha’i faith.  At para 176, the Tribunal finds that there is no real chance that the appellant will be harmed as a consequence of her de facto relationship and that she does not hold genuine fears in this regard in any event.  These findings are concerned with the overlap with the appellant’s claim for a protection visa under s 36(2)(a). 

20. As to the complementary protection under s 36(2)(aa), the Tribunal makes this observation at para 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 appellant] 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 I have found, [the appellant] has no profile to attract adverse attention from the authorities. 

    [emphasis added]

21. As to the order (verdict) concerning the 99 lashes, the Tribunal makes this observation at para 180:

    In response to the express submission that the verdict of 99 lashes would constitute significant harm (that categories of cruel or inhuman treatment of 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 appellant] as a necessary and foreseeable consequence of [the appellant] being removed from Australia to Iran. 
      [emphasis added]

22. The appellant contends, in the written submissions, that in reaching its conclusion about the document, the Tribunal fell into error for two reasons. 

23. First, the Tribunal failed to disclose to the appellant that the Tribunal had reached a conclusion that the document was, in effect, a forgery and thus deprived the appellant of an opportunity to comment upon that conclusion. 

24. Second, the Tribunal failed to give reasons for reaching its conclusion. 

25. As to the second ground, the Tribunal has given reasons for reaching its conclusion.  Two reasons were proffered.  The first reason can be found in the comments at paras 161 to 165 and the second reason can be found in weighing the considerations at paras 161 to 165 in the balance with the Tribunal’s findings at paras 148 to 159, as the Tribunal identifies at para 160:  see also para 180 of the Tribunal’s decision. 

26. In the oral submissions, the appellant introduced a further proposition to this effect.  Although the appellant accepts that the Tribunal was under no obligation to conduct enquiries into the authenticity of the court order, the Tribunal fell into jurisdictional error by failing to consider whether it ought to exercise any discretionary powers vested in it to conduct such an enquiry.  The appellant relies upon Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (“Li”) to support that proposition. 

27. With respect, Li is not engaged by the appellant’s contention. 

28. Li is concerned with the question of whether the Migration Review Tribunal failed to conduct the review required by the Act by unreasonably exercising the discretion conferred upon it by s 363(1)(b) of the Act. In particular, because there was no countervailing consideration upon which the Tribunal could have concluded that the refusal to adjourn the proceeding was reasonably open, the discretionary power was unreasonably exercised in the sense explained by the Chief Justice at [23] to [31]; by Hayne, Kiefel and Bell JJ at [63] to [76]; by Gageler J at [88] to [124]. The questions alive in Li are not engaged in this case in the context of the appellant’s contention. 

29. As to the question of whether the Tribunal had an obligation to put its view about the authenticity of the court order to the appellant, s 424A casts a mandatory obligation upon the Tribunal to give the applicant clear particulars of any information the Tribunal considers would be the reason or a part of the reason for affirming the decision under review and to invite the applicant to comment upon or respond to that information: s 424A(1)(a), (b) and (c). However, s 424A(3) provides that the section does not apply to information that the applicant gave to the Tribunal for the purpose of the appellant’s application for review: s 424A(3)(b). On 28 March 2013, the appellant’s lawyer gave to the Tribunal information concerning the contended Iranian court verdict and the two versions of the document. The Tribunal was not required to put its views about the document to the appellant. By operation of s 422B, Div 4 of Pt 7 of the Act which is concerned with the conduct of a review before the Tribunal, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to matters dealt with by the Tribunal. In any event, this contention is not a ground of appeal having regard to [10] and [11] of these reasons.

30. As to the question of whether the Tribunal fell under an obligation to make enquiries into the contended Iranian court order or verdict, s 427(1) of the Act provides that for the purpose of the review of a decision, the Tribunal may require the Secretary of the Department to arrange for the making of any investigation that the Tribunal thinks necessary with respect to the review and to give the Tribunal a report of that investigation or examination: s 427(1)(d).

31. As mentioned, the appellant concedes that the Tribunal is under no obligation to cause such an investigation to be made.  The point of criticism, said to amount to jurisdictional error, is the contended failure on the part of the Tribunal to give consideration to the exercise of the statutory discretion under s 427(1) to cause an investigation to be undertaken so as to give the Tribunal a report about the authenticity of the document.

32. The Tribunal is under no statutory obligation to exercise the power contained in s 427(1).

33. Secondly, there can be no failure by the Tribunal (thus amounting to jurisdictional error) to exercise the review jurisdiction conferred upon it in failing to consider whether the statutory discretionary power conferred under s 427(1) ought to be exercised in circumstances where the appellant, by its advisers (who are lawyers), failed to seek to have the power invoked and exercised.

34. There is no suggestion that any proposition was put to the Tribunal by the lawyers acting for the appellant that the Tribunal ought to conduct any particular investigation into the contended Iranian court document.  In this case, the appellant does not say that there was an unreasonable exercise of the statutorily conferred discretionary power. 

35. The proposition is that the Tribunal unreasonably failed to consider whether the statutory discretionary power ought to be exercised or not. Let it be assumed, however (although I do not accept the assumption to be so), that a duty fell upon the Tribunal to consider whether the discretionary power under s 427(1) ought to be exercised or not in the circumstances of the case, did the Tribunal act unreasonably in failing to consider that question. The legal standard of reasonableness is a function of the standard indicated by the true construction of the statute for the purpose of determining whether the power has been abused. It is necessary to construe the statute because the standard of reasonableness determines the answer to the question of “whether the statutory power has been abused”: Li [67], Hayne, Kiefel and Bell JJ.

36. So far as Div 4 of Pt 7 of the Act is concerned, unreasonableness (on the assumed hypothesis) could only arise where no sensible authority acting with due appreciation of its responsibilities would have failed to consider the exercise of the power conferred by s 427(1)(d) of the Act. Having regard to Div 4 of Pt 7 of the Act, the terms of s 427(1) and the scope and purpose of the statute conferring the power, I do not accept that any duty fell upon the Tribunal to exercise the discretionary power under s 427(1)(d) and I do not accept that the Tribunal acted unreasonably in failing to consider whether the power ought to be engaged and exercised in the circumstances of the case, even if it be the fact that no such consideration was given. The Tribunal, of course, had formed an adverse view about the credibility and truthfulness of the appellant.

1. Having regard to the complete sequence of questions put by the Tribunal to the appellant together with her answers, taken in conjunction with the views the Tribunal formed about the contended Iranian court verdict document, together with the views the Tribunal formed as to the credibility and truthfulness of the appellant, I am satisfied that it was open to the Tribunal to conclude that it could not be satisfied that substantial grounds existed for believing that as a necessary and foreseeable consequence of the appellant being removed from Australia to Iran, there existed a real risk that the non‑citizen would suffer significant harm. 

2. Challenges to the merits of the Tribunal’s findings, properly open to it on the evidence are not matters giving rise to jurisdictional error:  absent questions going to the review process leading to a conclusion on the merits such as those reflected in, for example, Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; and the considerations identified in Li, among other authorities (leaving aside contentions as to the “new plasticity in jurisdictional and non‑jurisdictional errors” referred to in recent literature). 

3. I am satisfied that it was open to the Tribunal, standing in the shoes of the Minister for the purposes of the exercise of the powers of the Tribunal upon review of the delegate’s decision, to conclude that it could not be satisfied that substantial grounds subsisted for believing that as a necessary and foreseeable consequence of the appellant being removed from Australia to Iran there is a real risk that the appellant will suffer significant harm. 

4. Thus, I am not satisfied that leave ought to be given as to the contention that the Tribunal failed to identify the burden of the appellant’s evidence before it about harm and that in consequence the Tribunal failed to discharge the statutory review function conferred upon it by failing to address a substantial, clearly articulated claim in the sense contemplated in Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088.

5. Accordingly, leave as to that ground is to be refused. 

6. For the reasons indicated earlier, I am not satisfied that the contentions of the appellant in relation to the certificate have been made good. 

7. It follows that the appeal must be dismissed with costs. 

I certify that the preceding seventy‑five (75) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.

Associate:

Dated:        11 May 2015