CPO18 v Minister for Home Affairs - [2019] FCCA 2292

FEDERAL CIRCUIT COURT OF AUSTRALIA

CPO18 v MINISTER FOR HOME AFFAIRS & ANOR

[2019] FCCA 2292

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Temporary Protection (subclass 785) visa – whether the Authority erred and failed to exercise its jurisdiction under s 473DB of the Migration Act 1958 (Cth) to review the decision of the Minister – whether the Authority’s rejection was irrational, illogical and not based upon findings or inferences of fact supported by logical grounds – whether the Authority considered it should exercise its discretion under s 473DC of the Act to obtain new information – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.30, 36, 473CC, 473DB, 473DC, 473DD

Cases cited:

ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109

BVD17 v Minister for Immigration and Border Protection (2018) 261 FCR 35

DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551

Minister for Immigration and Border Protection v DZU16 (2018) 253 FCR 526

Minister for Immigration and Border Protection v SZVFW [2018] HCA 30

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594

Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant

S154/2002 (2003) 201 ALR 437

Pennie v Minister for Home Affairs [2019] FCAFC 129

Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015)

258 CLR 173

WAHP v Minister for Immigration and Multicultural Affairs [2004] FCAFC 87

Applicant:

CPO18

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 1405 of 2018

Judgment of:

Judge Humphreys

Hearing date:

20 August 2019

Date of Last Submission:

20 August 2019

Delivered at:

Parramatta

Delivered on:

20 August 2019

REPRESENTATION

Counsel for the Applicant:

Mr Carey

Solicitors for the Applicant:

Mccabe Curwood

Counsel for the Respondents:

Mr Swan

Solicitors for the Respondents:

Mills Oakley

ORDERS

The application is dismissed.
The Applicant to pay the First Respondent’s costs fixed in the amount of $6,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 1405 of 2018

CPO18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR EX TEMPORE JUDGMENT

(Revised from transcript)

Introduction

The applicant is an Iranian citizen. The applicant arrived on Christmas Island as an unauthorised maritime arrival in March 2013. On 4 July 2016, the applicant lodged an application for a Temporary Protection (Subclass 785) visa. On 16 October 2017, a delegate of the Minister for Immigration and Border Protection (“the Minister”) refused to grant the Protection visa. The matter was referred to the Immigration Assessment Authority (“the Authority”) for a merits review.
In a decision dated 19 April 2018, the Authority affirmed the Minister’s decision. The applicant now seeks judicial review of the Authority’s decision.

Immigration Assessment Authority’s Decision

The applicant’s claims are set out in paragraph 4 of the decision. They are summarised as follows:
·The applicant is from Tehran. The applicant was born into a Shia family.
·The applicant has no faith in Islam. Religion is used to suppress people in Iran. There is no freedom of expression and behaviour is restricted. The applicant has an interest in Christianity, but is not a Christian.
·The applicant completed military service in 2007-2008. The applicant was required to complete four additional months of service for Ramadan breaches and not being seen at noon prayers.
·The applicant began using alcohol after military service and by 2010 was an admitted alcoholic. The applicant attended Alcoholics Anonymous (AA). The applicant still uses alcohol moderately and has memory problems from his past abuse of alcohol.
·Around 2010/2011, the applicant opened a café in Tehran with a business partner. In 2013, the applicant was arrested by police and accused of passing dishonoured cheques and serving alcohol in the café. The applicant was released on bail on the provision of substantial financial assurance, or surety, being given by his father. The applicant’s creditors would be repaid with that surety or assurance. The penalty for selling alcohol in Iran involves being publically lashed or flogged. The applicant was advised if he was convicted, it would be unlikely that he could avoid being lashed or flogged.
·The applicant sought advice from his lawyer if he could leave Iran legally. The applicant was advised that he was not blacklisted. The applicant left Iran legally on his passport in February 2013, travelled to Dubai and then on to Australia. The applicant’s passport was destroyed before he arrived in Australia.
·The applicant’s Iranian lawyer had advised him, through his father, that he could no longer act for the applicant, as he is “a fugitive from justice”.
·A summons has been issued by the Tehran Justice Ministry, dated 6 May 2013, requesting that the applicant attend to present his defence and a failure to do so will result in his arrest.
·The applicant fears return to Iran due to the risk of conviction for passing dishonoured cheques and selling alcohol. The applicant fears being publically flogged/lashed, imprisonment and/or execution.
·After arriving in Australia, the applicant commenced a relationship with an Iranian woman who has converted to Christianity. The applicant fears harm as this relationship breaches Iranian law.
·The applicant has also posted messages and photographs on Facebook promoting freedom in Iran and also photographs of him with pet dogs. Owning pet dogs in Iran is illegal.
·The applicant fears harm for having no faith in Islam and being viewed as an apostate.
At paragraphs 5 to 7 of the Authority’s decision, it accepts the applicant is a citizen of Iran, completed additional military service for Ramadan prayer breaches and was an alcoholic for a period of time. The Authority accepts as plausible, that the applicant has some memory difficulties due to his alcoholism. At paragraphs 8 to 9 of the decision, the Authority accepts the applicant cohabitated, for a period of time, with an Iranian woman who was a Christian convert and that the applicant has no faith in Islam.
At paragraph 10 of the decision, the Authority does not accept the applicant attended a church in Iran with friends and concludes that this claim has been fabricated to enhance his protection claims within Australia. At paragraph 11 of the decision, the Authority accepts the applicant opened a café with a business partner. The Authority has concerns as to the claims that the applicant was defrauded by his business partner and claims of arrest on cheque dishonouring and alcohol selling charges. The Authority notes the very short timeframe when the events are suggested to have taken place, being one week only.
Paragraphs 12 to 15 of the Authority’s decision deal with the applicant’s version of events given at different times and inconsistencies therein. At Paragraph 16 of the decision, the Authority deals with the Court Summons document. The Authority notes that the document has no date or time for the applicant to attend Court. The Authority notes there is no documentation that the applicant’s father’s bail assurance or surety has been subsequently forfeited as a result of the applicant’s non-attendance at Court.
At paragraph 17 of the decision, the Authority concludes that it is not satisfied that the applicant was arrested or charged in Iran for serving alcohol or passing dishonoured cheques, or that he was released on bail and left Iran whilst on bail. The Authority accepted, however, that the applicant did lose money and a business due to a dispute with his business partner.
Paragraph 18 of the Authority’s decision deals with the applicant’s claims regarding postings on Facebook. The Authority notes there is no corroborative evidence and the late advance of these claims. The Authority concludes it is not satisfied that the applicant has posted messages and has fabricated these claims to enhance his protection claim in Australia.
At paragraph 19 of the decision, the Authority accepts that the applicant no longer has a passport. Given these findings, at paragraphs 22 to 29 of the decision, the Authority deals with an assessment of “well-founded fear of persecution”. The loss of the applicant’s café is not considered as a matter that would give rise to a fear of serious harm. The Authority accepts the applicant was disciplined during his military service for moral code breaches, but while taking account of his frustrations at the behaviour restrictions in Iran, there is no indication that after his military service, the applicant came to harm for breaching a moral code, drinking alcohol or associating with his girlfriend publically.
At paragraph 25 of the Authority’s decision, the Department of Foreign Affairs and Trade (“DFAT”) reports on the enforcement of Islamic conduct in the community in Iran are noted. The Authority finds that the chance the applicant would face harm for Ramadan breaches and/or drinking alcohol are remote. At paragraph 26 of the decision, the Authority concludes that the risk of harm upon return is remote should the applicant go out publically with a woman. The authority was not convinced the applicant’s cohabitation with a woman in Australia would be known to the authorities.
At paragraph 27 of the decision, the Authority concludes there is no indication that the applicant has attracted attention in the past for having no faith in Islam. Country information indicates many Iranians do not attend mosques on a regular basis. The Authority does not accept the applicant’s fear that he would be harmed due to his non-belief in Islam.
At paragraph 28 of the decision, the Authority concludes that having Christian friends or associates in Australia would not give rise to a real chance of harm if the applicant was returned to Iran. At paragraph 29 of the decision, the Authority notes that Iran does not accept involuntary returnees and will not issue travel documents to involuntary returnees. The Authority concludes that if returned to Iran, the applicant would have to do so on a voluntary basis. The Authority accepts the applicant will be questioned upon his return, but he would be of no interest to authorities and he would not be subject to serious harm as a result.
At paragraphs 30 to 31 of the decision, the Authority concludes there was no real chance of persecution due to the matters set out above, and the applicant does not meet the requirements of s 36(2)(a) of the Act.
At paragraphs 32 to 36 of the decision, the Authority deals with the complementary protection considerations. For similar reasons, the Authority concludes that the applicant does not meet the requirements for the grant of a protection visa under s 36(2)(aa) of the Act.

Grounds of Appeal

Leave was granted to rely upon three Grounds of Appeal in an amended application filed on 16 July 2019. They are set out as follows:
1. The Second Respondent (the Authority) erred and thereby failed to exercise its jurisdiction under s.473DB of the Migration Act to review the decision of the First Respondent’s delegate (the Delegate) on 16 October 2017 to refuse the Applicant a protection visa (the Delegate’s Decision) in that in reaching its own decision, the Authority found the Applicant’s account of his arrest by Iranian authorities for various financial offences and for the possession of alcohol with the intention of selling it in early 2013 (the Applicant’s Account of his Arrest) to be implausible and therefore not genuine, which finding was irrational, illogical and not based upon findings or inferences of fact supported by logical grounds.
Particulars:
a.   The Applicant stated (as part of the Applicant’s Account of his Arrest) in his Statutory Declaration of 24 May 2016 lodged together with an in support of his Protection Visa Application (the Applicant’s Statutory Declaration) and in the course of his Protection Visa Interview that:
i. after he had been charged with the offences referred to above and released on bail, his father sought advice on his behalf from the applicant’s lawyer as to whether the applicant could legally leave Iran, and the lawyer gave advice to the effect that the applicant was permitted to do so, and;
ii. after the applicant left Iran, and upon learning the applicant did not intend to return to Iran and/or attend Court when required to do so in relation to the offences referred to above, the applicant’s lawyer became “upset” and declined to continue to represent the applicant because he was by the time “a fugitive from justice”.
b. The Authority found the aspect of the Applicant’s Account of his Arrest referred to in sub-paragraph (a)(ii) above to be inconsistent with the aspect of the Applicant’s Account of his Arrest referred to in sub-paragraph (a)(i) above and on that basis found the whole of the Applicant’s Account of his Arrest was implausible and/or a fabrication.
c. There was no rational or logical basis for the finding referred to in sub-paragraph (b) above.
d. In making the finding referred in sub-paragraph (b) above, the Authority assumed and/or speculated, in the absence of evidence supporting such a conclusion, that at the time that the Applicant’s lawyer gave the advice referred to in sub-paragraph (a)(i) above, he was aware that the Applicant intended to leave Iran and did not intend to return to Iran and/or attend Court when required to do so in relation to the offences referred to above.
2. The Authority erred and thereby failed to exercise its jurisdiction under s.473DB of the Migration Act to review the Delegate’s Decision in that it rejected the Applicant’s claim to have been required to attend Court by way of a Summons issued by “Branch 4” of the “Tehran Military Justice” on or about 6 May 2013 in connection with the offences referred to in paragraph 1 above (the Summons), which rejection was irrational, illogical and not based upon findings or inferences of facts supported by logical grounds.
Particulars:
a.   The applicant repeats and relies on the particulars referred to in paragraph 1 above.
b.   The Authority rejected the evidence about the Summons and the grounds that he failed to mention “in his statement of claims” and only referred to its existence during the course of his Protection Visa Interview, when in fact, the Applicant had referred in that statement (at paragraph 61 of the Applicant’s Statutory Declaration) to the existence of “documents” received by his father after he left Iran from the Iranian Court concerning his case and his attendance at Court in connection with the offences referred to in paragraph 1 above.
c.    In circumstances referred to above all of the evidence before the Authority plainly contradicted a finding by the Authority to the effect that the Applicant had failed to mention in the Summons, in his statement of claims and/or prior to his Protection Visa interview.
3. The Authority erred and thereby, failed to exercise its jurisdiction under s.473DB of the Migration Act to review the Delegate’s Decision in that it made findings referred to in paragraph 1 above and rejected the claim referred to in paragraph 2 above unreasonably, having made those findings and rejected that claim without first considering whether it should exercise its discretion under s. 473DC of the Migration Act to “get new information” about the Applicant’s Account of his Arrest and Summons.
Particulars:
a. The applicant repeats and relies upon the particulars referred to in paragraphs 1 and 2 above.
b. Both the Applicant’s Account of his Arrest and the authenticity of the Summons have been accepted by the Delegate.
c. The Applicant was invited to make brief submissions to the Authority for the purposes of its review of the Delegate’s Decision, however, it was not suggested to the Applicant, either during his Protection Visa Interview, when invited to make brief submissions to the Authority or any other time, that:
i. the Applicant’s Account of his Arrest had been a fabrication or not genuine or that he was required to address the issue of his credibility or veracity of that Account during the course of the Authority’s review of the Delegate’s Decision; or
ii. that his credibility or the veracity of his claim to have been summoned to attend Court in connection with the offences referred to in paragraph 1 above was in doubt.
d. The Authority made that finding referred to in paragraph 1 above and rejected the claim referred to in paragraph 2 above, when finding and which rejection were irrational, illogical and not based upon findings or inferences of fact supported by logical grounds.
e. The Authority failed to consider whether it should exercise its discretion under s.473DC of the Migration Act to “get new information” about the Applicant’s Account of his Arrest (including in relation to the matters referred to in paragraph 1(d) above) or the Summons before making the finding referred to in paragraph 1 above, and rejecting the claim referred in paragraph 2 above.
These very lengthy and somewhat difficult to follow claims can be summarised as asserting irrational or illogical findings in relation to the claims made in respect of Ground 1, the applicant’s account of his arrest, and Ground 2 being that the applicant was issued with a summons to attend Court. Ground 3 asserts that the Authority should have exercised the discretion under s 473DC of the Act to get new information about the applicant’s claimed arrest and summons once it had reached a conclusion that there were doubts as to the veracity of those claims.

The Applicant’s Submissions

Grounds 1 and 2 allege that the findings in relation to the applicant’s arrest and summons are irrational, illogical and not based on findings or inferences of fact supported by logical grounds.
Mr Carey, of counsel, on behalf of the applicant, set out in submissions, the evidence contained in the applicant’s entry interview, the evidence given in a Statutory Declaration and his Protection visa interview. It is noted that the Minister accepted the applicant’s claims were broadly consistent in his entry interview, protection visa application and protection visa interview. Excerpts from each were produced.
I note, however, the Minister stated at page 148 of the Court book that:
…I give him the benefit of the doubt and accept that he was arrested for one night in early 2013 and released on bail, paid by his father.
As regards to the summons, the Minister stated, at page 148 of the Court book:
…With regards to the summons however, it is not possible to verify its genuineness without checking with the Iranian authorities.
The Minister then goes on to say:
…Given that the applicant is otherwise credible, I accept that a summons to attend Court was given to his father in May 2013.
Counsel on behalf of the applicant noted the Minister found the applicant did not have a well-founded fear of persecution but did not appear to give consideration to the consequences of a conviction for selling alcohol, being some 60 lashes/floggings in public. Counsel on behalf of the applicant submitted that there were clear findings by the Authority that:
1) The account of the applicant’s discussions with his lawyer were a fabrication.
2) It rejected the applicant’s claim to have been summoned to attend Court.
In relation to the summons, it was submitted that the Authority appears to have found, or at least by implication, that the summons was a forgery. Counsel on behalf of the applicant, submitted that upon a proper analysis of the all of the available evidence, there was nothing to suggest that the account of his arrest, his summons and dealings with the law were other than genuine. Counsel submitted that it was not logical to express surprise at the reported reaction of the applicant’s lawyer upon being told the applicant had fled Iran, given that the lawyer had already advised that the applicant could leave Iran legally.

Counsel on behalf of the applicant submitted that the finding that the applicant failed to mention the summons in his statement of claim is wrong and, contrary to the applicant’s statutory declaration, which is contained within the Court book. Counsel for the applicant submitted that the decisions under s 473CC of the Act are reviewable for jurisdictional error where the process of reasoning is (see Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (“SZMDS”):
…irrational, illogical or not based upon findings or inferences of fact supported by logical grounds.
It was conceded by Counsel, on behalf of the applicant, however, that any finding of irrationality or illogicality must be “extreme illogicality or irrationality” and referred to ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109 paragraph [47].
Counsel for the applicant conceded that any conclusion found to be a jurisdictional error must be:
…devoid of or contrary to logic; or ignorant or negligent of, and not in conformity with, the laws of correct reasoning.
(See WAHP v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 87 paragraph [7] per Lee J):
I indicate that I believe Counsel for the applicant’s summary of the law is indeed accurate. Counsel on behalf of the applicant submitted that the Authority’s reasoning was predicated upon a disbelief of the reaction, as recounted, of the applicant’s lawyer to the news that the applicant had fled Iran.
Counsel submitted that there is nothing unusual of a lawyer being asked for advice on the right to leave a country while on bail. Once it was ascertained that the applicant had left and did not propose to return, a decision to decline further representation was “extremely normal”.
Ground 3 is argued on the basis that it was unreasonable not to get new information pursuant to s 473DC of the Act in relation to the issue of the lawyer’s advice and then the reaction upon learning that the applicant had fled Iran. The power given under Part 7AA of the Act, must be exercised reasonably. Reliance is placed on Minister for Immigration and Border Protection v DZU16 (2018) 253 FCR 526.
Reference was also made to the judgment of Gageler J in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (“Li”) paragraph [92]. It was suggested it was unreasonable not to get new information from the applicant about his arrest, summons and dealing with his lawyer. It was submitted that nowhere does the Authority consider getting new information. Counsel submitted that the Authority should have done so. It was not reasonable not to draw to the applicant’s attention, issues with his credibility that, in the Authority’s view, were dispositive of the case and then not seek new information.
During submissions to the Court, Counsel on behalf of the applicant conceded that Ground 3 was predicated upon Ground 1 or 2 being accepted by the Court.

The First Respondent’s Submissions

Mr Swan, of Counsel, on behalf of the first respondent, submitted in relation to Ground 1, that the reasoning is not illogical or irrational and even if it was so (which was not conceded) it would not amount to jurisdictional error. Simply because the applicant does not agree with the reasoning of the Authority or Court who might have come to a different conclusion, does not mean that a finding is irrational or illogical, such that it amounts to jurisdictional error.
The Authority expressed concern as to the applicant’s evidence. It is for the applicant to advance his claims and for the Authority to decide if they are made out (see Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S154/2002 (2003) 201 ALR 437 paragraph [57] per Gummow and Hayne JJ). Given the totality of the concerns, the non-acceptance of the applicant’s claims was not “as a whole” unreasonable, even if the statement at the end of paragraph 14 in the Authority’s decision exhibited a degree of illogicality (which was not conceded).
In relation to Ground 2, Counsel on behalf of the first respondent submitted that there was nothing illogical or irrational about the concerns raised by the Authority regarding the summons. The statutory declaration omitted reference to the summons. The concerns were ones that a rational or logical decision-maker “could” have held. Counsel for on behalf of the first respondent referred to SZMDS at paragraphs [131] and [135]. The concerns regarding the admissions in the statutory declaration were not just limited to the summons and the conclusions are not, as a whole, unreasonable.
In relation to Ground 3, Counsel on behalf of the first respondent, submitted that this is premised upon the basis that the Authority “failed to consider” the exercise of the power under s 473DC(3) of the Act, to get new information. There was no evidence the Authority did so fail. It was submitted there was no obligation on the Authority to give reasons for procedural decisions or steps taken during the course of the review (see BVD17 v Minister for Immigration and Border Protection (2018) 261 FCR 35 at paragraphs [47] to [49]).
It was submitted that an inference should not be drawn lightly that the Authority did not do something, not being a matter that is required to be set out in its reasons (see Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173, 185). It was submitted that, in any event, there was no unreasonableness in not inviting the applicant to give new information in relation to his lawyer’s reaction as to the applicant departing Iran or the reference to the summons in his 2013 statutory declaration.
Part 7AA of the Act proceeds upon the basis that reviews will be carried out on the papers, without accepting or requesting new information or interviewing the referred applicant. The Authority is not obliged to notify the applicant it is considering on taking a different view to the Minister, nor is it required to inform the applicant about specific reservations it might have and provide the applicant with an opportunity to respond (see DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551 (“DGZ16”)). It was submitted that there was nothing unreasonable in not inviting the applicant to provide new information.
In oral submissions, Counsel on behalf of the applicant said that the process of reasoning that was relied upon by the Authority was one that could reasonably have been arrived at. Reliance was made on paragraph 17 of the Authority’s decision, where it says that the matters were considered together. The Authority comes to a conclusion where the impugned findings were included, but that the conclusion at paragraph 17 was based on the whole of the decision and is not unreasonable. It was a decision that could have been realistically arrived at and would not have led to a different decision. Reliance was placed on the fact that there was no Court date in the summons and it was suggested to the Court that the fact that the Court date of May 13 was later suggested, is a significant issue.
In relation to Ground 3, two points were raised. The Full Court in Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 indicated that the Authority does not need to set out its reasons for procedural fairness and this does not show that the Authority failed to reasonably exercise its discretion.

Considerations

Grounds 1 and 2 can be dealt with together as they involve allegations of irrational or illogical factual findings by the Authority. As I have indicated, irrational or illogical findings have been described as a subset of legal unreasonableness (see SZMDS paragraph [124]). The test for unreasonableness is “stringent” and arises in only rare cases.
Unreasonableness is not a means of challenging a decision on the basis that a Court disagrees with the consideration of matters or the evaluative judgments made in decision-makers (see Li at paragraphs [30] and [113]). As stated above, extreme logicality or rationality must be shown (see ARG15). Different minds might meet different conclusions on a jurisdictional fact, is insufficient for the test for either logicality or rationality be made out (see SZMDS at paragraph [131]).
Ground 1 asserts that the finding in relation to the applicant’s arrest by Iranian authorities for various financial issues and the possession of alcohol was not genuine, is irrational or not logical. Ground 2 makes a similar assertion as to the outstanding summons. At paragraph 7 of the decision, the Authority accepts there may be some confusion in the applicant’s accounts due to his memory loss as a result of the effects of alcohol intake. I also concede that there may be some confusion by the applicant in the use of his terms as to “summons” and “warrant”, given his non-legal background.
At paragraph 10 of the Authority’s decision, there is a finding that the applicant fabricated claims regarding a Christian church to enhance his protection claims. At paragraph 11 of the decision, the Authority expresses surprise that the applicant would leave 12 to 13 signed cheques at his business, given he was only leaving for one week. The Authority then has issues that the business partner would, in the space of a week, have used several cheques for which there were insufficient funds, obtained goods, served alcohol, and then absconded. The cheques were then subsequently dishonoured at the bank, the persons presenting the cheques being advised of the dishonouring cheques and complaints made to the police. By the time the applicant returned to Tehran, police had investigated and concluded that he had dishonoured cheques, which amounted to 27 million toman and were in a position to lay charges in relation to that and the selling of alcohol.
It is in this background that it is asserted that the finding that the applicant’s lawyer would be surprised and upset that the applicant absconded, is implausible or irrational or illogical. The first respondent suggests that it be obvious to a lawyer, having been asked if the applicant could “legally exit Iran”, that the applicant was likely to flee Iran. Given that the applicant had already received legal advice that he would be subject to a sentence of public lashing that could not be avoided. I am of the view that it would not be surprising to a lawyer for a client to then subsequently flee the jurisdiction. I do not see this finding as “extreme” illogicality or irrationality.
In any event, given the concerns that the Authority had already raised about the circumstances allegedly leading up to the applicant’s claimed arrest, which I have detailed above, I do not see that the finding as affecting the decision, such as to make it “as a whole unreasonable” (see Pennie v Minister for Home Affairs [2019] FCAFC 129 paragraph [24]).
There were numerous concerns which led the Authority to not accepting or not being satisfied with the claims of the applicant that he had been arrested and charged in Iran. Ground 2 alleges irrationality or illogicality in the rejection of the claim of being summoned to attend Court on or about 6 May 2013. In my view, there was nothing illogical or irrational in rejecting the claims that were allegedly in the summons.
At paragraph 16 of the decision, the Authority set out a number of concerns about the document, noting no time or date for attendance is set out on the summons. Given the claim that the applicant had failed to appear, the Authority was also concerned that his father’s bail assurance did not appear to have been forfeited. Issues also arose due to it not being mentioned in the applicant’s statutory declaration, although Counsel for the applicant states that it is referred to.
There is nothing illogical or rational, in my mind, about the Authority’s findings. I am satisfied that the findings are ones “that could have” been made. I am not satisfied that even if I am wrong in this regard, that the ultimate conclusion is “as a whole unreasonable”. I therefore find that there is no jurisdictional error raised in Grounds 1 and 2.
In relation to Ground 3, I note the concession by Counsel for the applicant, that it was dependent upon Grounds 1 and 2, or either of them being upheld. I will deal with it as a matter of completeness.
I accept the first respondent’s submission that there is nothing to suggest the Authority “failed to consider” the exercise of its discretion pursuant to s 473DC(3) of the Act. The power to get new information under
s 473DC(3) of the Act is entirely discretionary, with the word “may” being used. Section 473DD of the Act provides certain restrictions on what new information may even be considered by the Authority, being, in circumstances where there are exceptional circumstances and that either of the grounds which are set out in s 473DD(b)(i) or s 473DD(b)(ii) of the Act are met.
I accept that the reasonableness must be assessed by reference to the statutory context of the power in question (see Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 paragraph [79] per Nettle and Gordon JJ). In this case, the primary rule for reviews under Part 7AA of the Act is that the reviews are conducted on the papers and without accepting or requiring new material. There is no obligation, in my view, to notify an applicant of an intention to take a different view of the Minister (see DGZ16 v the Minister for Immigration and Border Protection (2018) 258 FCR 551).
I find that there was nothing unreasonable in not inviting the applicant to provide new information, in fact it would be, to my mind, contrary to the generalised statutory scheme, were such an invitation be given in the circumstances I have outlined above.
Accordingly no jurisdictional error has been made out in relation to Ground 3.

Conclusion

Accordingly, I dismiss the application

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge Humphreys

Deputy Associate:

Date: 12 September 2019