CPW18 v Minister for Home Affairs

[2025] FedCFamC2G 258

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

CPW18 v Minister for Home Affairs [2025] FedCFamC2G 258

File number(s):

SYG 1410 of 2018

Judgment of:

JUDGE D HUMPHREYS

Date of judgment:

26 February 2025

Catchwords:

 MIGRATION – Immigration Assessment Authority - Safe Haven Enterprise (class XE) (Subclass 790) visa – whether the Authority made a jurisdictional error under s 473DC of the Migration Act 1958 (Cth) by not interviewing the applicant – no jurisdictional error made out – application dismissed

Legislation:

Migration Act 1958 (Cth) ss 5J, 36, 473CB, 473DB, 473DC, 473DD

Cases cited:

ABT17 v Minister for Immigration (2020) 269 CLR 439; [2020] HCA 34

BCJ18 v Minister for Immigration [2022] FedCFamC2G 111

DVO16 v Minister for Immigration (2021) 273 CLR 177; [2021] HCA 12

DXG17 v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 302 FCR 313; [2024] FCAFC 10

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3

Minister for Home Affairs v DUA16 (2020) 271 CLR 550; [2020] HCA 46

Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11

Minister for Immigration v Li (2013) 297 ALR 225; [2013] HCA 18

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437

Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347

Division:

Division 2 General Federal Law

Number of paragraphs:

41

Date of hearing:

20 February 2025

Place:

Parramatta

Counsel for the Applicant:

Mr Jones

Solicitor for the Applicant:

Ms Ehsani (Ehsani Legal)

Counsel for the Respondents:

Mr Reilly

Solicitor for the Respondents:

Mr Cacaj (Clayton Utz)

ORDERS

SYG 1410 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

CPW18

Applicant

AND:

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	JUDGE D HUMPHREYS
DATE OF ORDER:	26 FEBRUARY 2025

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The Applicant is to pay the First Respondent’s costs fixed in the sum of $8,371.30.  

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE D HUMPHREYS

INTRODUCTION

1. This is an application for judicial review of a decision of the Immigration Assessment Authority (“the Authority”) dated 16 April 2018, affirming a decision of a delegate of the Minister (“the delegate”) not to grant the applicant a Class XE (Subclass 790) Safe Haven Enterprise visa (“SHEV”).

2. The applicant is a citizen of Iran. He claims to be of Farsi (Persian) ethnicity. He arrived in Australia in July 2013 as an unauthorised maritime arrival. He applied for a SHEV in April 2017.

3. For the reasons set out below, the application is dismissed. 

   IMMIGRATION ASSESSMENT AUTHORITY’S DECISION

4. The Authority’s decision spans a total of nine (9) pages and 36 paragraphs.

5. The Authority had regard to material given by the Secretary under s 473CB of the Migration Act 1958 (Cth) (“the Act”). This included a document emailed by a Migration Agent acting for the applicant titled “Facebook Acc Activity” with the applicant’s name, comprising of 27 pages of images purported to be screenshots taken from the applicant’s Facebook account. This information had not been before the delegate and constituted new information.

6. The Authority was not satisfied that the images could not have been provided to the Minister before the delegate’s decision was made. Whilst the Authority accepted that it was credible personal information, not previously known, which may have affected consideration of the applicant’s claims, it considered that there were no exceptional circumstances to justify considering the new information. The Authority noted that they were unable to determine the content or context of the posts and having considered this, no exceptional circumstances arose. The Authority was satisfied however that the applicant had posted pro-Christian messages on his Facebook page.

7. The applicant’s claims are summarised at [6] of the decision as follows:

   •He is an Iranian citizen of Farsi (Persian} ethnicity. He was born on 13 March 1989. He resided in Tehran his entire life, until his departure for Australia.

   •He was detained for a week in 2007 after fighting with the son of a local police officer.

   •He was assaulted in a park in 2012 by a group of unknown men

   •He departed for Australia in 2013 after concluding becoming dissatisfied (sic) with Iran's Government, policies, administration and economic outlook. He feared that Iran might become involved in a war and that he would have little opportunity for prosperity there.

   •He departed Iran by plane, from Tehran airport and travelled to Australia, arriving in July 2013.

   •In 2016, after his arrival in Australia he became ·aware of and converted to Christianity and is now a practising Christian. He has publicly avowed his new faith on social media.

   •If returned to Iran, he fears would face persecution arising from his new Christian faith.

8. The applicant put forward several claims to the Australian authorities. Although the applicant did not put forward independent evidence in support of the following claims, the Authority accepted that they had occurred:

   •Around 2007, the applicant was detained for approximately one week in a local police station after he had an argument with the son of a local police officer. No charges arose from this event.

   •Around 2012, the applicant was assaulted in a park by an unknown group of men. He does not know the purpose of this assault. He claims to have suffered wounds to his head, and his chest.

9. The applicant claimed that he observed that Iran was a “problematic” country for several reasons at [12] of the decision. For these reasons the applicant obtained a passport legally and arranged travel out of the country in 2013. It was accepted that the applicant left Iran due to his general feeling towards the country rather than being prompted by a specific event. The Authority was not satisfied that the applicant would face harm due to his views about the Iranian regime, as he had not claimed to have expressed dissatisfaction publicly, nor did he hold a desire to do so.

10. The Authority had regard to the applicant’s claim about his conversion to Christianity from [14]-[21] of the decision. The Authority made the following factual findings:

    (a)Upon explaining his conversion, the applicant stated that he had become disillusioned with Islam as a child. The Authority did not find this claim to be plausible or convincing. It found that it gave the impression that the applicant was inventing these claims “on the fly” in order to justify his claims of conversion to Christianity;

    (b)Although the Authority found the applicant’s arrival at the Baptist Church and his baptism on the same day to be suspicious, it ultimately found the account to be plausible, due to evangelical Baptist theological practices. It accepted that the applicant was baptised in February 2017, had been a regular attendee and made contributions to church activities since that time;

    (c)The Authority, like the delegate, had doubts about the timing of the applicant’s conversion to Christianity. The Authority noted that factors such as the applicant not attending church until December 2016, not being baptised until February 2017 and being a member of the Church’s public outreach program of which he attended activities for twice in the weeks prior to the protection visa interview, suggested a tendency for the applicant to exaggerate his commitment to the faith. The Authority had doubts about the applicant’s attendance at the Baptist Church;

    (d)The Authority concluded that at the time the applicant was invited to apply for a visa, he did not have a reason to fear returning to Iran since he had never been to a Christian church beforehand and was not baptised. This conclusion is consistent with the applicant’s entry interview in 2013. The applicant’s conversion to Christianity was first mentioned in his SHEV application which was signed in March 2017, days after his baptism. The Authority was not persuaded this timing was coincidental;

    (e)As to the applicant’s answers about his conversion, to which the delegate had found were repetitive and rehearsed, the Authority observed at [20] that the applicant’s answers were consistent with anybody who attended several months of intense bible study. The Authority was not satisfied the answers were truthful or reflected the applicant’s “true and genuine” feelings towards Christianity; and

    (f)The Authority was ultimately unsatisfied that the applicant engaged in Christian activities and regularly attended Christian services for reasons other than strengthening his refugee claim. Due to this the Authority disregarded all of the applicant’s activities related to his conversion to Christianity under s 5J(6) of the Act. The applicant’s conversion to Christianity was not considered to be genuine.

11. The Authority considered a claim which was raised by the applicant’s representative at the SHEV interview in 2017 being that the applicant feared harm to return to Iran as a failed asylum seeker. This was considered at [22]-[25] of the decision and the Authority was not satisfied the applicant would be of any adverse interest to the Iranian authorities going beyond routine questioning he could expect at the airport. This would not warrant harm or serious harm.

12. The Authority assessed whether the applicant was owed complementary protection. They had regard to country information specifically relating to Muslims who leave their faith and convert to another religion or atheism being charged with apostasy. Through the Department of Foreign Affairs and Trade Country Information Report: Iran April 2016, it revealed that apostates are only likely to come to the attention of Iranian authorities if they engaged in public manifestations of their new faith, hade attempts at proselytization, attended house church or were made known to authorities. The country information suggested that the applicant would only come to the attention of authorities through persisted engagement in Christian activities whilst in Iran.

13. The Authority did not find that there was a real chance the applicant would face harm. Accordingly, the applicant did not meet s 36(2)(a) of the Act.

    GROUNDS OF JUDICIAL REVIEW

14. The applicant’s sole ground of review is contained in an Amended Application filed on 16 January 2025. The Court granted leave for the applicant to rely on this application. The ground is as follows (less particulars):

    1.The Second Respondent (Authority) made a jurisdictional error by failing to seek an interview of the Applicants under s 473DC of the Migration Act 1958 (Cth).

    THE APPLICANT’S SUBMISSIONS

15. The applicant alleges that the Authority failed to interview the applicant in accordance with s 473DC of the Act.

16. Counsel for the applicant cited the matter of ABT17 v Minister for Immigration (2020) 269 CLR 439; [2020] HCA 34 (“ABT17”) where the High Court considered the discretion of the Authority to obtain new information under s 473DC of the Act. The jurisdictional error apparent in ABT17 was described by Kiefel CJ, Bell, Gagler and Keane JJ in the following manner at [25] of the decision:

    … the Authority will act unreasonably if, without good reason, it does not invite a referred applicant to an interview in order to gauge his or her demeanour for itself before it decides to reject an account given by the referred applicant in an audio recorded interview which the delegate accepted in making the referred decision wholly or substantially on the basis of its own assessment of the manner in which that account was given. That is what happened in this case.

17. It may be drawn from the above that ABT17 can be applied to quash decisions whereby the Authority has disbelieved the applicant in circumstances where an assessment of demeanour could have been made through an opportunity to interview the applications ;( see: citing BCJ18 v Minister for Immigration [2022] FedCFamC2G 111, [49]-[52]).

18. Relying on the observations of the High Court at [18]-[20] of ABT17, the applicant submitted that the matter can be relied upon to support a principle that a decision of the Authority may be judicially reviewed where the Authority has failed to exercise its discretion to get new information, particularly an interview, under s 473DC of the Act, where there was no intelligible basis for omitting to do so. Subsequent High Court cases have accepted that legal unreasonableness with respect to s 473DC is relevant in circumstances other than “demeanour” cases, namely DVO16 v Minister for Immigration [2021] HCA 12 and Minister for Home Affairs v DUA16 [2020] HCA 46.

19. In each case where there are allegations of failure to interview, it should be assessed according to its own context. This would allow a determination of whether there has been a legally unreasonable failure to exercise s 473DC of the Act.

20. The delegate found that the applicant’s answers were repetitive and seemed to be rehearsed, based on this observation at interview. the delegate made a demeanour finding. The Authority was unable to make a demeanour finding as it did not conduct an interview of the applicant, and subsequently, did not accept or reject the delegate’s demeanour finding.

21. The Authority’s rationale is that the applicant could have easily learnt his responses about the Christian faith through intensive bible studies, and this does not sufficiently bridge the “information gap” referred to in ABT17. The applicant maintains that a person who is a genuine convert to Christianity could acquire knowledge about the faith through bible study, however, it also follows that another person could gain the same knowledge without “real faith”. This ought to be decided by an assessment of the persons’ demeanour which was undertaken by the delegate. If an interview was undertaken it is possible that the Authority would agree with the delegate’s assessment or reach a different view on the applicant’s demeanour, and in turn, genuineness.

22. It was legally unreasonable for the Authority not to interview the applicant under s 473DC of the Act in order to make its findings as to the applicant’s conversion to Christianity, this is in circumstances where the Authority had, as submitted by the applicant at [21] of the written submissions:

    (i)rejected the objective matter relied upon by the Delegate;

    (ii)ascertained that demeanour had been relevant to the Delegate’s finding; and

    (iii)found adverse to the Applicant’s genuineness a matter that was not necessarily fatal to such genuineness

    THE FIRST RESPONDENT’S SUBMISSIONS

23. Whilst the applicant notes that the Authority’s reason for rejecting their claims to be a Christian were different to the findings of the delegate, the reasoning of the delegate and Authority are in fact consistent. The delegate and Authority both found that the applicant’s claim to be a Christian convert was for the purposes of the SHEV application and were not genuine. The Authority did not find that the applicant’s responses to the delegate about his faith were “repetitive”.

24. There is a high threshold for a finding to be made out that the Authority unreasonably failed to exercise its power under s 473DC(1) (see: Minister for Home Affairs v DUA16 (2020) 271 CLR 550 at [26]-[27], [34]; DXG17 v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 302 FCR 313 at [52].). As such, legal unreasonableness is not demonstrated in the applicant’s case given that the Authority came to the same conclusion as the delegate for slightly different reasons.

25. The first respondent submits that this case differs from ABT17 as argued by the applicant. ABT17 concerned an error by the Authority in rejecting a claim that had been accepted by the delegate wholly or partly on the applicant’s demeanour and then themselves failing to invite the applicant to an interview; (see: ABT17 at [25]). At [23]-[24], the Court clarified that the Authority would ordinarily be able to come to a conclusion without requiring an interview.

26. The Authority in this case found that the applicant’s claimed conversion to Christianity was not credible as the timing of the alleged conversion was shortly before the SHEV application was made, which indicated that his Christian beliefs were not genuine. The Authority did not make this finding based on the demeanour of the applicant before the delegate.

27. The first respondent maintains that due to the statutory scheme and the provision of s 473DB(1) and s 473DC(2), there was no obligation for the Authority to hold an interview.

    CONSIDERATION

28. In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17], the task of a Court conducting judicial review was described in this manner:

    … an application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the executive branch of government, here in the form of a decision of the Minister.  The court does not consider the merits or wisdom the decision; nor does it remake the decision.  The task of the court is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.

29. It is well established that the Authority is not required to accept uncritically any and all claims made by an applicant: (see: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at [451]).

30. Nor does the Authority have to possess rebutting evidence before holding that a particular assertion was not made out: (see: Selvadurai v Minister for Immigration and Ethnic Affairs (1992) 34 ALD 347 at [348]).

31. This review was conducted as a Fast Track review under the now repealed Part 7AA of the Act.

32. The applicant complains that the Authority made a jurisdictional error by failing to seek an interview with him under s 473DC of the Act. Under s 473DB of the Act, Fast Track reviews are to be undertaken based on the review material provided to the Authority without accepting or requesting new information (s 473DB(1)(a)) or interviewing the applicant (s 473DB(1)(b)). While there is a provision for obtaining new information, including by way of an interview with the applicant (s 473DC(3)(b)), the receipt of any new information is subject to the extensive restrictions set out in s 473DD of the Act.

33. It is common ground between the parties that the power to interview an applicant under s 473DC is discretionary, however any discretion must be exercised in a manner that is not unreasonable.

34. Unreasonableness is where a decision-maker has come to a conclusion so unreasonable that no reasonable decision-maker could have come to it: Minister for Immigration v Li (2013) 297 ALR 225 (“Li”) at [28], or where a decision has been made that lacks an “evident and intelligible justification” (see: Li at [76]). The test for unreasonableness is “stringent” and will only arise in rare cases.

35. Unreasonableness is not a means for challenging a decision on the basis that the Court disagrees with the consideration of matters or the evaluative judgements made by the decision-maker (see: Li at [30], [113]). In Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 at [11] Allsop CJ said the following concerning a review of a decision for legal unreasonableness:

    The task is not definitional but one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, insufficiently lacking rational a foundation, or an evident or intelligible justification, or in being plainly unjust arbitrary capricious or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as to the exercise of that power.  The descriptions of a lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of power.

1. The applicant complains that it was unreasonable not to interview the applicant, given the conclusions contained within [20]. This included, unlike the delegate, that the Authority did not find that applicant’s answers to the delegate’s questions about his conversion to Christianity to be repetitive and rehearsed. Instead, the Authority found the answers could “easily be learned by anybody who attended several months of intense bible study”, which the applicant had. It was on this basis the Authority was not satisfied that the applicant’s answers were truthful or reflected the applicant’s true and genuine feelings towards Christianity.

2. It was submitted that this conclusion implicitly involved a consideration of the applicant’s demeanour. Reliance was placed on ABT17.

3. Unlike ABT17, this is not a case where the Authority rejected the applicant’s account based on his demeanour, in circumstances where the delegate accepted that account. In this case, it was the content of the applicant’s answers which the Authority found could be “easily learnt by someone who had attended several months of intense bible studies”. The Court does not accept this conclusion involved a consideration of demeanour.

4. Further, that conclusion mirrored, for slightly differing reasons, the rejection of the applicant’s accounts of conversion to Christianity by the delegate as not credible. The delegate found, as did the Authority at [21], that the applicant’s purported conversion to Christianity was not genuine but rather designed to strengthen the applicant’s claims. This was in circumstances where the Authority at [19] found the timing of the applicant’s purported conversion to Christianity “was not coincidental”.

5. In the Court’s view there was no requirement to hold an interview with the applicant. It was open to the Authority, based on the evidence before it, and for the reasons it gave, particularly as to the timing of the applicant’s purported conversion to Christianity, that the conversion was not genuine.

6. The sole ground of judicial review has not merit. The application must be dismissed.

I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys.

Associate:

Dated:       26 February 2025