CRT16 v Minister for Immigration
[2020] FCCA 2132
•4 August 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CRT16 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2132 |
| Catchwords: MIGRATION – Application to review decision of Immigration Assessment Authority – whether the Authority asked itself the wrong question – whether jurisdictional error where invalid s.473GB notification. |
| Legislation: Migration Act 1958 (Cth), Part 7AA, s.473GB |
| Cases cited: Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473; [2003] HCA 71 |
| Applicant: | CRT16 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 2557 of 2016 |
| Judgment of: | Judge Barnes |
| Hearing date: | 31 May 2019 |
| Date of Last Submission: | 20 December 2019 |
| Delivered at: | Sydney |
| Delivered on: | 4 August 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Chia |
| Counsel for the Respondents: | Mr Reilly |
| Solicitors for the Respondents: | Mills Oakley |
ORDERS
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2557 of 2016
| CRT16 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Immigration Assessment Authority (the Authority) dated 25 August 2016 affirming a decision of a delegate of the First Respondent not to grant the Applicant a protection visa.
The Applicant, a citizen of Iran, arrived in Australia in November 2012. He applied for a temporary protection visa in June 2015.
In his visa application the Applicant described his religion as: “Atheist”. He claimed that the Iranian government did not allow citizens to be atheists. In a written statement in support of his application he claimed that at high school he had spoken out about his disagreement with Islam and was asked to agree not to “talk negative or bad about the religion again”. He claimed he was threatened with expulsion for this misbehaviour.
The Applicant also claimed that while he was at university the “fanatic Islamic people” knew about his ideas, treated him badly, argued with him and made trouble for him. He claimed that when he left university he tried to find a job in the government sector, but that he would be asked about religion and prayer in interviews and “couldn’t pass the test”. He returned to work on his father’s farm.
The Applicant claimed that he later obtained a position as a voluntary teacher at a high school, but was asked to leave when they found out that he was not following the Islamic religion. He claimed that in Iran, only people who followed the religion and the Islamic system were allowed to have a job. He claimed that if people in Iran spoke against religion or followed any religion other than Islam they put themselves in danger of being killed. The Applicant also claimed that he could not find a job because of his poor results in religion and scripture. He returned to Tehran. He claimed he started a job which did not match his qualifications.
He claimed that in Tehran he found a few friends and family who did not believe in religion and were atheists who organised gatherings at which they talked about religion and ideas. The Applicant claimed that after he found out that one of the leaders of the group had been arrested and another had left the country he decide to leave Tehran. According to the delegate, the Applicant later claimed that he left Iran after he received a telephone call from a person who claimed to be a member of the group wanting to arrange another meeting. He suspected that the caller was a covert security agent. He claimed to fear being arrested, jailed, tortured and mistreated as an atheist if he returned to Iran.
In a written submission in support of the protection visa application the Applicant’s migration agent claimed that the Applicant feared harm for reasons of religion and as a member of the particular social group of atheists in Iran. The submission referred to country information in relation to the treatment of those who held and expressed views against Islam in Iran or were apostates.
The Applicant attended a departmental interview. The only evidence before the court of what occurred in that interview consists of the references in the decisions of the delegate and the Authority.
The delegate accepted that it was plausible that the Applicant had questioned the validity of Islam from a young age, but did not accept that his claim to be an atheist was credible. He found that the Applicant was a representative example of those in Islamic society who could be categorised as non-practising Muslims. The delegate also found that the discrimination the Applicant had faced was what was faced in public circles by Iranians who did not comply with accepted religious standards and who were outspoken against the traditions of the faith, and not the result of being an atheist.
The delegate was of the view that much of the Applicant’s evidence about the discussion group to which he belonged, the risk to him and the arrest of the leader, was speculative. The delegate did not accept that the Applicant was a member of an atheist group in Iran or that he had engaged in any behaviour that made him of interest to the Iranian authorities prior to his departure.
The delegate had regard to the absence of any evidence that the Applicant had publicly renounced Islam, country information that non-practising Muslims would not face harm if they did not openly challenge Islamic rules and what the delegate described as the absence of any evidence that the Applicant had been, or foreseeably would be, involved in openly challenging Islamic rules. The delegate found that the harm the Applicant feared as a non-practising Muslim in Iran was not well-founded.
After the delegate refused the application the matter was referred to the Authority for review under Part 7AA of the Migration Act 1958 (Cth) (the Act). No further information was provided to the Authority by the Applicant.
The Authority’s decision
In its reasons for decision the Authority summarised the Applicant’s claims. Unlike the delegate, the Authority had regard to the fact that the Applicant had “consistently identified himself as an atheist” and accepted his claim that he was an atheist who did not believe in any religion, including Islam.
The Authority considered the Applicant’s claim that he had spoken out about his atheist beliefs at university in compulsory religious studies classes and had been discriminated against on this basis. However, it found:
13. Country information indicates that university students face penalties if they are judged to support groups that the authorities consider atheist or ‘mohareb.’ Such students are often likely to be arrested and detained by state security authorities but also face punishment by their university or others institutions disciplinary committee which may impose various sanctions. While the applicant claimed to have been hassled and threatened by security guards, he was not arrested or detained nor did he face punishment from the university. He was able to complete his degree. Even if I were to accept that the applicant voiced his atheist opinions at university, I do not accept he faced serious harm as a result. Nor do I accept that any such actions gave rise to harm after he left university.
(footnote omitted)
The Authority outlined the Applicant’s claims that he had been unsuccessful in obtaining government jobs on the basis of his religion, but was eventually successful in obtaining a voluntary role in a government operated agricultural school. It had regard to the fact that his evidence to the delegate was that he was dismissed from this position because he wore colourful clothes and shaved his beard, which the school had interpreted as meaning that “he did not care about Islam”.
The Authority had regard to country information about non-practising Muslims in Iran, stating:
15. A senior research fellow in Iranian studies at a university in Germany has stated that nonpractising Muslims form a large part of the population of Iran's cities. They lead normal daily lives and are rarely called upon to answer direct questions about Muslims religious practice and are rarely pressured to observe Muslim precepts. The exceptions to this including applicants for certain job who are asked about their religious affiliation and ways of practising Islam during their job interviews. In such situations, most non-practising Muslims prefer to hide the truth. If, however such a person insists or saying that they do not practise the Islamic precepts, they may reduce their chances of being accepted for the job but they would not face any further harm. I accept as plausible the applicant may have been rejected from a number of government jobs on the basis of not answering direct questions about his religious practise. However based on the applicant’s own evidence, he was eventually successful in obtaining a government job. He claims that he was dismissed after a period of time because he wore colourful clothing and shaved his beard but also because he did not demonstrate that he practised Islam. I accept he may have been dismissed on this basis. However I also note that he worked as a self-employed tradesman in Tehran for an 11 year period. I do not accept that his atheist views, or his non-adherence to Islamic practices have, or will, threaten his capacity to subsist.
(errors in original, footnote omitted)
The Authority considered the Applicant’s evidence that he joined a group in Tehran with similar ideas (half of whom identified as atheists) which met at members’ houses every two to three months and discussed the government and religion in Iran. It observed:
17. The applicant stated that the leader was arrested as he put some things on facebook about religion and he made a speech in public where a security guard heard and arrested him. The applicant was unaware of any further details but stated that after the arrest, no further meetings were held. The leader was arrested approximately five to seven months prior to the applicant departing Iran for Australia. During this period the applicant claimed to have received some phone calls from an unknown person. The applicant stated that since his departure from Iran an unknown person has called his wife. His wife is also an atheist. This person has called every four to five months since the applicant’s departure from Iran.
The Authority was prepared to accept that the Applicant was part of a group which spoke about religion and what was happening in that respect in Iran. It accepted that the leader was arrested by the authorities “on the basis of writing things on facebook and making a speech in public”. However it did not accept that these actions and the leader’s arrest had any “affiliation” to the group of which the Applicant was a member. It had regard to the Applicant’s evidence that the group only participated in meetings and found that the group did not participate in the activities for which the leader had been arrested.
The Authority noted that when asked by the delegate if he had received any threats in Iran, initially the Applicant had stated that, apart from at university, he had not received any threats. He later referred to unknown men calling him and his wife, although he stated that no threats were made during these calls. Given the manner in which these claims were raised, the Authority did not accept that the Applicant or his wife had received phone calls from unknown men “in relation to his atheist beliefs”.
The Authority considered the Applicant’s claim in the departmental interview that upon return to Iran he would be arrested and jailed because of his religious beliefs. It had regard to the fact that in his arrival interview (conducted on Christmas Island) the Applicant had said that if he returned to Iran “nothing really serious” would happen to him, but that he did not want to return. The Authority did not accept the Applicant’s explanation that he had said this because he did not know where he was and which government was interviewing him.
Nevertheless, the Authority accepted that the Applicant would be returning to Iran as an atheist who was a former member of a group which discussed religion. The Authority referred to country information about the place of religion and secular attitudes in Iranian life, including the fact that many Iranians had a secular attitude and did not regularly attend mosques. It had regard to a DFAT Report which stated that atheists were unlikely to come to the attention of security authorities unless they sought to publicise their views. It recorded that while DFAT was unaware of any recent charges of individuals for being atheists, it was “legally possible” for a person to be punished under the Iranian Penal Code for insulting the Prophet Muhammad or other prophets and that such punishment could range from lashes to the death penalty, and that a Muslim who left his or her faith to practice atheism could be charged with apostasy.
The Authority continued at paragraph 25:
A senior research fellow in Iranian studies at a university in Germany stated in August 2015 that atheists usually do not express their views in public and are thus able to lead normal lives in Iran without facing any further restrictions. Whereas atheists obviously cannot discuss their opinions in public, they often use the internet to present their views anonymously. In 2012, it was reported that atheism is not recognised in Iran and that under Iran’s sharia law, any Muslim who abandons his faith may face the death penalty for apostasy. While few death sentences for apostasy were carried cut in the last ten years, atheists are forced to hide their true beliefs for fear of other consequences such as losing their social benefits or being barred from university entrance.
The Authority noted that “aspects” of this country information had been put to the Applicant for comment and that in response he had stated that he did not know what to say, but claimed that he would be arrested upon return to Iran on the basis of his “atheist beliefs”. It continued at paragraph 27 of its reasons:
I accept the applicant is an atheist and will be returning to Iran as an atheist. I have also considered the country information above indicating the penalties for such beliefs. However I am not satisfied based on the personal circumstances of the applicant that there is a real chance the applicant will face harm on the basis of his religious beliefs. I note the applicant has been an atheist since he was 14 or 15 years of age. He departed Iran when he was approximately 40 years old. Throughout this period the applicant, based on his own evidence has not received any threats of harm, apart from those at university which I have found to be not credible and the claimed phone calls which I have not accepted. I accept the applicant has been discriminated against in respect to government employment; that he was dismissed from a government operated school and has been unsuccessful in obtaining other government jobs. This may or may not be in respect to his religious beliefs, however in any case, I am not satisfied the discrimination he has faced in obtaining government employment in the past, or that he may face in the future, has or will affect his capacity to subsist given he was able to operate his own business in Tehran between 2001 and 2011. I am satisfied the applicant will be able to return to Iran and continue to reside and maintain his atheist beliefs either individually or as part of a group as he has previously done and will not face a real chance of harm from the Iranian authorities. There is no credible evidence before me to indicate the applicant will act in any other manner than how he has previously acted while residing in Iran and I am not satisfied on the applicant's own evidence that he has withheld expressing his beliefs in public in fear of facing harm. I am not satisfied there is a real chance of serious harm on this basis, now or in the reasonably foreseeable future. I find the fear is not well-founded.
The Authority also considered the Applicant’s claims to fear harm as a failed asylum seeker who was an atheist who had participated in a group where religion was discussed. It found that country information did not indicate that the Applicant would be harmed in any way for being a failed asylum seeker, even taking into account that he was an atheist who had participated in a group where religion was discussed. The Authority was not satisfied that there was a real chance the Applicant would face any harm upon return to Iran now or in the reasonably foreseeable future.
In considering the complementary protection criterion the Authority reiterated that it accepted that the Applicant was an atheist who would “continue to identify himself as an atheist upon return to Iran”. It also accepted that he “may face some restriction in obtaining government employment because of his views”, but was not satisfied that he would be arbitrarily deprived of his life or that he would have the death penalty carried out on him. It found that there was no evidence that he would be subject to torture. It was not satisfied that he would face harm that amounted to pain or suffering or would cause extreme humiliation or that there was otherwise a real risk of significant harm for this reason.
The Authority referred to the fact that it had found that there was no real chance of any other type of harm upon return to Iran arising from the Applicant’s atheist/religious views. Similarly, it was not satisfied that there was a real risk of significant harm on this basis.
The Authority affirmed the decision not to grant the Applicant a protection visa.
These Proceedings
The Applicant sought judicial review by application filed on 21 September 2016. He now relies on an amended application which contains two grounds.
Ground 2 in the amended application relates to a s.473GB certificate and notification. At the time of the hearing, special leave to appeal to the High Court from the decision of the Federal Court in BVD17 v Minister for Immigration and Border Protection (2018) 261 FCR 35; [2018] FCAFC 114 had been granted. The matter was adjourned part-heard until after the High Court’s decision in BVD17 v Minister for Immigration and Border Protection (2019) 373 ALR 196; [2019] HCA 33. The parties were then afforded, and took, the opportunity to make further submissions.
Ground 1
Ground 1 in the amended application is as follows:
1. The second respondent (Authority) asked itself the wrong question and thereby constructively failed to exercise its jurisdiction.
Particulars
The Authority accepted that the applicant is an atheist but concluded at [27] that it was “not satisfied ... that he has withheld expressing his beliefs in public in fear of facing harm”, relying on country information at [25] that:
“While few death sentences for apostasy were carried out in the last ten years, atheists are forced to hide their true beliefs for fear of other consequences such as losing their social benefits or being barred from university entrance”.
In doing so, the Authority equated the abatement in number of death sentences being carried out with the absence of well-founded fear of harm and failed to consider whether death sentences had not been carried out because atheists hid their true beliefs due to well-founded fear of harm.
As explained in the Applicant’s submissions, this ground involves a contention that the Authority’s reasoning exhibited an error of the nature considered by the High Court in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473; [2003] HCA 71 per McHugh and Kirby JJ at [43] and Gummow and Hayne JJ at [80] and [88].
The Applicant referred to the fact that in S395/2002 the High Court had found that the then Refugee Review Tribunal had asked itself the wrong question and committed jurisdictional error by failing to consider whether homosexual appellants from Bangladesh had modified their conduct in the past to avoid harm and by assuming that they would do so in the future (see S395/2002 at [43] and [80]). The Tribunal in S395/2002 had regard to the fact that the appellants had not experienced serious harm or discrimination prior to their departure from Bangladesh and to information that while homosexuality was not acceptable in Bangladesh, Bangladeshis generally preferred to ignore the issue rather than confront it. The Tribunal had observed that the appellants had lived together for over four years without experiencing any more than minor problems with anyone outside their families and that: “They clearly conducted themselves in a discreet manner and there is no reason to suppose that they would not continue to do so if they returned home now” (see Gleeson CJ in S395/2002 at [9]). It was pointed out that in Minister for Immigration and Border Protection v SZSCA (2014) 254 CLR 317; [2014] HCA 45 at [17] French CJ, Hayne, Kiefel and Keane JJ explained the decision in S395/2002 as follows:
The essential reasoning in S395 was that the Tribunal had diverted itself from its task of determining whether there would be a real chance that the applicants would be persecuted if they returned to Bangladesh, by focusing on an assumption about how the risk of persecution might be avoided. Gummow and Hayne JJ said that the enquiry was what might happen if the applicants returned, not whether adverse consequences could be avoided. It followed that the issue to which the correct enquiry was directed – whether the fear of persecution was well founded – had not been addressed.
(footnote omitted)
The Applicant acknowledged that in this case the Authority was not satisfied that he had experienced serious harm in the past and also was not satisfied that he had “withheld expressing his beliefs in public in fear of facing harm”. These findings were said to be central to the Authority’s reasoning. However it was suggested that the latter finding must have been based on the Authority’s reasoning (at paragraph 25) in relation to country information that:
… While few death sentences for apostasy were carried out in the last ten years, atheists are forced to hide their true beliefs for fear of other consequences such as losing their social benefits or being barred from university entrance.
(footnote omitted)
It was submitted that while the Authority’s ultimate finding relied on an intermediate finding that the Applicant had not modified his conduct in the past due to a well-founded fear of harm, it could be inferred that in making this intermediate finding the Authority had reasoned that the death penalty for apostasy had not been carried out and therefore atheists such as the Applicant chose to act discreetly “for fear of other consequences”. This reasoning was said to exhibit an error of the nature identified by the High Court in S395/2002 such that the Authority had constructively failed to exercise its jurisdiction.
The Applicant contended that in reasoning in this manner the Authority had made an assumption that if few death sentences for apostasy had been carried out, then there was no real chance of the death sentence being carried out in the future and therefore had decided that there was no well-founded fear of harm on that basis. However it was submitted that the Authority had incorrectly taken the absence of past harm to mean the absence of a well-founded fear of future harm on the basis of an assumption that the conduct of the Applicant was unaffected by the conduct of the persecutor. It was submitted that the Authority had overlooked the possibility that the reason few deaths sentences for apostasy had been carried out may have been because atheists concealed their true beliefs and chose to act discreetly due to a well-founded fear of harm. This was said to mean that the Authority was asking how atheists such as the Applicant could act, rather than what might happen to them in Iran.
In oral submissions counsel for the Applicant conceded that the Applicant “had never claimed that he had modified his conduct” and that, “to the contrary”, he had claimed that he “had spoken out about religion and had suffered as a result”. However it was contended that in the absence of any claim by the Applicant of past modification of his behaviour, the only basis for what was said to be an assumption by the Authority that the Applicant had withheld expressing his beliefs in public, must have been the country information referred to in paragraph 25 of the Authority’s reasons. It was submitted that an assumption as to how risk “could” be avoided could be inferred from the Authority’s reasons (see S395/2002 at [43]).
The First Respondent submitted that, contrary to the particulars to this ground, the Authority’s conclusion at paragraph 27 (that it was not satisfied that the Applicant had withheld expressing his beliefs in public in fear of facing harm) was not based on the country information cited at paragraph 25, but rather, as the Authority stated, on “the applicant’s own evidence”.
It was submitted that the Applicant had never claimed that he wished to express his atheistic beliefs in public but had not done so from fear of harm. The First Respondent submitted that not only had the Applicant not claimed to have modified his activities in the past to avoid harm, but also that the Authority had not required him to do so in the future. The Authority had found that the Applicant could return to Iran and resume the same activities he had engaged in previously without fear of serious or significant harm.
Counsel for the First Respondent submitted that it was not implicit in the Authority’s findings that the Applicant had modified his past conduct in relation to expressing his atheism. It was said to be crucial that nowhere had the Applicant said that he had done, or refrained from doing, something to do with his atheism in Iran due to the fear of harm. The First Respondent also contended that the mere fact that the Authority referred to country information that atheists could not discuss their opinions in public could not, without more, amount to a finding that the Applicant had wanted to do so, but had refrained from doing so out of fear of harm.
It was submitted that the Authority’s conclusion that it was not satisfied on the Applicant’s own evidence that he had withheld expressing his beliefs in public for fear of facing harm followed from the fact that the Applicant never made such a claim and that it was not apparent from the way he had acted in the past that he had any particular desire to speak out publicly. This was said not to involve any past modification of behaviour or expectation by the Authority of future modification of behaviour to avoid harm. It was submitted that this case did not raise any issue about modification of behaviour. The First Respondent observed that, consistent with this, the Authority had not considered s.5J(3) of the Act as might have been expected if the Authority had contemplated that the Applicant modify or conceal his atheist beliefs to avoid harm.
Hence, the First Respondent submitted that the passages from S395/2002 relied on by the Applicant had no application to this case. It was acknowledged that in SZSCA at [17] the majority of the High Court had described the essential reasoning in S395/2002 as being that the Tribunal had not addressed the correct question of whether the claimed fear of persecution was well-founded, because it had focused on an assumption as to how the risk of persecution might be avoided. However it was contended that, in contrast, in this case the Authority clearly found that the Applicant did not have a well-founded fear of harm in Iran based on his own past experiences and so had answered the correct question (see SZSCA at [18]). The First Respondent submitted that the Authority had not focused on any assumption about how the claimed risk could be avoided (see SZSCA at [17]-[18]).
Consideration
In S395/2002 McHugh and Kirby JJ stated at [43]:
The notion that it is reasonable for a person to take action that will avoid persecutory harm invariably leads a tribunal of fact into a failure to consider properly whether there is a real chance of persecution if the person is returned to the country of nationality. This is particularly so where the actions of the persecutors have already caused the person affected to modify his or her conduct by hiding his or her religious beliefs, political opinions, racial origins, country of nationality or membership of a particular social group. In cases where the applicant has modified his or her conduct, there is a natural tendency for the tribunal of fact to reason that, because the applicant has not been persecuted in the past, he or she will not be persecuted in the future. The fallacy underlying this approach is the assumption that the conduct of the applicant is uninfluenced by the conduct of the persecutor and that the relevant persecutory conduct is the harm that will be inflicted. In many – perhaps the majority of – cases, however, the applicant has acted in the way that he or she did only because of the threat of harm. In such cases, the well-founded fear of persecution held by the applicant is the fear that, unless that person acts to avoid the harmful conduct, he or she will suffer harm. It is the threat of serious harm with its menacing implications that constitutes the persecutory conduct. To determine the issue of real chance without determining whether the modified conduct was influenced by the threat of harm is to fail to consider that issue properly.
Gummow and Hayne JJ explained at [80]:
If an applicant holds political or religious beliefs that are not favoured in the country of nationality, the chance of adverse consequences befalling that applicant on return to that country would ordinarily increase if, on return, the applicant were to draw attention to the holding of the relevant belief. But it is no answer to a claim for protection as a refugee to say to an applicant that those adverse consequences could be avoided if the applicant were to hide the fact that he or she holds the beliefs in question. And to say to an applicant that he or she should be “discreet” about such matters is simply to use gentler terms to convey the same meaning. The question to be considered in assessing whether the applicant’s fear of persecution is well founded is what may happen if the applicant returns to the country of nationality; it is not, could the applicant live in that country without attracting adverse consequences.
Their Honours continued at [88]:
This reveals the error made by the Tribunal. The Tribunal did not ask why the appellants would live “discreetly”. It did not ask whether the appellants would live “discreetly” because that was the way in which they would hope to avoid persecution. That is, the Tribunal was diverted from addressing the fundamental question of whether there was a well‑founded fear of persecution by considering whether the appellants were likely to live as a couple in a way that would not attract adverse attention. That the Tribunal was diverted in that way is revealed by considering the three statements in its reasons that are referred to earlier: first, that it is not possible to “live openly as a homosexual in Bangladesh”; secondly, that “[t]o attempt to [live openly] would mean to face problems”; and, thirdly, that “Bangladeshi men can have homosexual affairs or relationships, provided they are discreet”. Nowhere did the Tribunal relate the first and second of these statements to the position of the appellants. It did not consider whether the adverse consequences to which it referred sufficed to make the appellants’ fears well founded. All that was said was that they would live discreetly.
(emphasis in original)
However in this case, counsel for the First Respondent submitted and counsel for the Applicant expressly conceded in oral submissions, that the Applicant had never claimed that he had modified his conduct in the past. In other words, it was accepted that the Applicant had not claimed that he had not expressed his atheist beliefs for fear of harm. Rather, counsel for the Applicant suggested that the Applicant’s claim was that he had spoken out about religion in the past and that he had suffered as a result.
There is no transcript of the departmental interview in evidence. Given the Applicant’s concession, notwithstanding some references in the delegate’s decision to particular aspects of the Applicant’s oral evidence in the interview that might have suggested otherwise, this ground must be considered on the basis that the Applicant never claimed that he had modified his conduct to avoid harm. Hence this is not a case in which the Applicant’s claim was that he had conducted himself in a discreet manner in relation to expressing his atheist beliefs in public in fear of facing serious or significant harm.
In these circumstances, contrary to the Applicant’s submission, it has not been established that the Authority’s conclusion at paragraph 27 of its reasons was (or must have been) based on its reasoning at paragraph 25 in relation to country information or an assumption of the nature contended for by the Applicant. The Authority acknowledged the country information indicating the penalties for atheist beliefs. The reports cited in paragraph 25 of the Authority’s reasons are not in evidence. It is not clear that the Authority was making an assumption that the reason that few death sentences for apostasy had been carried out in recent years was because atheists chose to act discreetly because of fear of such harm. This suggestion is not consistent with the Authority’s subsequent statement that “atheists are forced to hide their true beliefs for fear of other consequences such as losing their social benefits or being barred from university entrance” (emphasis added). There is no suggestion that these “other consequences” would amount to serious or significant harm.
In any event, based on its assessment of the Applicant’s evidence, the Authority made findings about what might happen if he returned to Iran, not whether adverse consequences could be avoided.
It stated at paragraph 27 of its reasons:
… I am not satisfied based on the personal circumstances of the applicant that there is a real chance the applicant will face harm on the basis of his religious beliefs. I note the applicant has been an atheist since he was 14 or 15 years of age. He departed Iran when he was approximately 40 years old. Throughout this period the applicant, based on his own evidence has not received any threats of harm, apart from those at university which I have found to be not credible and the claimed phone calls which I have not accepted. I accept the applicant has been discriminated against in respect to government employment; that he was dismissed from a government operated school and has been unsuccessful in obtaining other government jobs. This may or may not be in respect to his religious beliefs, however in any case, I am not satisfied the discrimination he has faced in obtaining government employment in the past, or that he may face in the future, has or will affect his capacity to subsist given he was able to operate his own business in Tehran between 2001 and 2011. I am satisfied the applicant will be able to return to Iran and continue to reside and maintain his atheist beliefs either individually or as part of a group as he has previously done and will not face a real chance of harm from the Iranian authorities. There is no credible evidence before me to indicate the applicant will act in any other manner than how he has previously acted while residing in Iran and I am not satisfied on the applicant’s own evidence that he has withheld expressing his beliefs in public in fear of facing harm. I am not satisfied there is a real chance of serious harm on this basis, now or in the reasonably foreseeable future. I find the fear is not well-founded.
(emphasis added)
As the First Respondent submitted, it is not implicit in these findings that the Applicant had modified his past conduct in relation to expressing his atheism in fear of facing harm.
It has not been established that the Authority asked the wrong question or made an assumption about how the risk of persecution could be avoided based on country information (such that discussed at paragraph 25 of its reasons) or that it proceeded on the basis that the Applicant had modified his conduct in the past or could modify his conduct in the future to avoid harm. The Authority found, based on the Applicant’s own evidence, that it was not satisfied that he had withheld expressing his beliefs in fear of facing harm. It considered what might happen if he returned to Iran, not whether adverse consequences “could” be avoided (see SZSCA at [17]).
It has not been established that the Authority erred in the manner contended for by the Applicant. Ground 1 is not made out.
Ground 2
The second ground of review is that “the Secretary materially provided to the Authority an invalid notification, purportedly under section 473GB of the Act”.
Section 473GB of the Act is as follows:
(1) This section applies to a document or information if:
(a) the Minister has certified, under subsection (5), that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 473GA(1)(a) or (b)) that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or
(b) the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence.
(2) If, in compliance with a requirement of or under this Act, the Secretary gives to the Immigration Assessment Authority a document or information to which this section applies, the Secretary:
(a) must notify the Authority in writing that this section applies in relation to the document or information; and
(b) may give the Authority any written advice that the Secretary thinks relevant about the significance of the document or information.
(3) If the Immigration Assessment Authority is given a document or information and is notified that this section applies in relation to it, the Authority:
(a) may, for the purpose of the exercise of its powers in relation to a fast track reviewable decision in respect of a referred applicant, have regard to any matter contained in the document, or to the information; and
(b) may, if the Authority thinks it appropriate to do so having regard to any advice given by the Secretary under subsection (2), disclose any matter contained in the document, or the information, to the referred applicant.
(4) If the Immigration Assessment Authority discloses any matter to the referred applicant under subsection (3), the Authority must give a direction under section 473GD in relation to the information.
(5) The Minister may issue a written certificate for the purposes of subsection (1).
A copy of a notification to the Authority, which was said to be under s.473GB of the Act, was included in a supplementary courtbook. It notified the Authority that s.473GB of the Act applied to a document or information in an “IMA PV - Identity Assessment Form” (ID Assessment) of 14 October 2015 in a file relating to the Applicant (identified by a client ID number and name) and stated that:
In my view, this document or information should not be disclosed to the referred applicant or the referred applicant’s representative because:
(a) The disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest because it is a Departmental working document.
The notification was dated 12 July 2016. This was the date of the referral to the Authority by the Department. At that time the Secretary of the Department was required to give the Authority “review material” which, under s.473CB(1)(c) of the Act, was to include any material in the Secretary’s possession or control considered at the time of the referral to be relevant to the review. There is no suggestion that the documents the subject of the notification were not given to the Authority.
The Applicant filed a further supplementary courtbook which included copies of the documents the subject of the certificate in question. They consist of the ID Assessment and also a copy of an internal departmental email of 14 October 2015 which provided a copy of the ID Assessment to the delegate who made the decision of 11 July 2016 in relation to the Applicant.
The Applicant submitted that the s.473GB certificate was invalid and was only a purported notification because it stated that “disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to public interest because it is a Departmental working document”. It was contended that this was not a reason which could form the basis for a claim of public interest immunity and that therefore the notification did not meet the requirements of paragraph 473GB(1)(a) and was invalid (see MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1; [2016] FCA 1081). The First Respondent accepted that the notification was invalid.
In its reasons for decision the Authority stated that it had regard to the material referred by the Secretary under s.473CB of the Act and that no further information was obtained or received. The Authority found that it was satisfied of the Applicant’s identity. The statement of reasons made no reference to the ID Assessment.
In support of the proposition that provision of the invalid notification amounted to jurisdictional error, the Applicant referred first to the approach taken by Beach J in MZAFZ in relation to a purported certificate under what was said to be the equivalent provision in s.438 of the Act. In that context, Beach J had held that the Administrative Appeals Tribunal committed jurisdictional error by proceeding or acting on an invalid s.438 notification.
The Applicant recognised that in Minister for Immigration and Border Projection v BBS16 (2017) 257 FCR 111; [2017] FCAFC 176 the Full Court of the Federal Court had concluded that Beach J’s view that acting on an invalid certificate amounted to jurisdictional error did not apply to a notification under s.473GB of the Act. The Full Court noted that the scheme of Part 7AA of the Act did not impose any duty on the Authority to involve a referred applicant in its determination as to whether a certificate/notification was valid or whether the Authority should accept or reject any written advice provided to it by the Secretary under s.473GB(2)(b) of the Act. The Applicant contended that the Court had essentially held in BBS16 (at [89]-[99]) that documents subject to a s.473GB notification would be part of the “review material” and that there would be no obligation on the Authority to “turn… its mind to … disclosure” of such material. The Court had also noted (at [100]) that any procedural fairness afforded to an applicant in a Part 7AA review would be at the Authority’s discretion.
However the Applicant submitted that it was significant that the Court had stated in BBS16 at [100] that “there may be scope” for a judicial review challenge to an adverse decision by the Authority where the Authority had regard to an invalid s.473GB certificate/notification and related information, if the referred applicant somehow became aware of this fact.
In any event, the Applicant submitted that regard must also be had to the fact that after the decision in BBS16, the High Court had concluded in Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 at [44] that, subject to establishing materiality, an invalid certificate under s.438 of the Act would “without more” amount to jurisdictional error as “an unauthorised act in breach of a limitation within the statutory procedures which condition the performance of the overarching duty” of the Administrative Appeals Tribunal to conduct a review. It was submitted that this reasoning would also apply to the Authority in relation to an invalid s.473GB certificate.
The Applicant submitted that, in light of SZMTA, the reasoning of the Full Court in BBS16, which relied on the absence in Part 7AA of any duty to involve the review applicant in the Authority’s deliberations, fell away. It was submitted that subject to materiality, the provision of an invalid s.473GB certificate would in itself amount to a jurisdictional error as a breach of a condition precedent to the valid performance of the review by the Authority.
In support of the proposition that the breach in this case was material, the Applicant contended that the Authority could be expected, in the ordinary course, to treat a notification by the Secretary that s.473GB applied as a sufficient basis for accepting that it did in fact apply to any document or information to which the notification referred and to leave that document or information out of account in reaching its decision (as was stated SZMTA at [47] in relation to a s.438 certificate). The question was then said to be whether there was a realistic possibility that the Authority’s decision could have been different if it had taken the document or information therein into account (see SZMTA at [48]).
It was submitted generally that the Authority’s decision could have been different if it had taken the ID Assessment into account.
The form the subject of the s.473GB certificate (the ID Assessment) is a departmental form. It was completed, in part, apparently by a departmental officer, before being provided to the delegate.
Part 1 of the printed ID Assessment (which was completed) sets out the results of what is described in the printed form as “Initial Identity Data Mining”, including (under the heading “A. Identifiers”) file, arrival and biographical data details for the Applicant. The form contains an additional column headed “Details from Application (if different)”. This part of the form has also been completed. For example, the biographical data details for the Applicant record a reference to his religion (in his arrival interview) as “Muslim Shia”, while the details from the visa application are stated as “Atheism”. The form also contains details of family composition, family/social links to Australia, travel history, education, employment and contact details and records in each category some differences in the details provided in the arrival interview and the visa application.
Part 1 of the ID Assessment also lists under the heading “B. Documents” documents provided by the Applicant, including his passport. In a section which requires a summary of “any concerns about the integrity” of the documents provided, the departmental officer who completed this form referred to the fact that the Applicant had stated in his arrival interview that his legal Iranian passport had been taken from him by a person who introduced himself by a particular name, whereas in his protection visa application he had stated that it was taken by the boat crew members; that the Applicant had requested records of interviews in a Freedom of Information request; that there were inconsistencies in the details of travel and education history between the arrival interview and visa application; and that the Applicant had provided a copy of a previous Iranian passport valid from 2006-2011 which was prior to the date he travelled to Indonesia from Iran. A copy of the identity details page from that passport is included in the ID Assessment.
The next section of Part 1, headed “C. Story”, asks for any “obvious inconsistencies” in information that raise concerns about the “integrity of the client”. In that part of the form the departmental officer referred to the Applicant’s claims about why he left Iran and what he feared if he returned, including the fact that he stated in his arrival interview that if he returned nothing serious would happen, whereas in his protection visa application he stated that if he returned he would be arrested, tortured and mistreated by the authorities as an atheist. The form also included a notation that a departmental address search of the Applicant’s current residential address had located another person who currently lived at the same address and who had arrived at Christmas Island at the same time as the Applicant, but that neither of them had claimed in their arrival interviews to know each other or to be travelling companions.
The ID Assessment summarised “concerns or inconsistencies” as “Inconsistencies with story of leaving home country”, “in claiming links to Australia” and “with travel and education history”.
The next section of Part 1 of the ID Assessment form called “D. Risk Recommendation” states that if there are “No obvious ID concerns or inconsistencies apparent” the matter is to be referred for allocation to a PV Officer, whereas if there are such concerns or inconsistencies the matter is to be referred to another section of the Department for “Identity Triage and Assessment”. However this section was not completed, except that an officer signed the form and dated it 10 September 2015.
Part 2 of the ID Assessment form states that it is to be completed where there is an “Identity Referral Outcome” because of identity concerns or inconsistencies. This part of the form was not completed. Part 3 of the form, which is to be completed where there are no obvious concerns or inconsistencies apparent, was also not completed.
The Applicant submitted that while some of the data in the ID Assessment arose from his arrival interview, it could not be inferred that all of that information had been taken into account by the Authority in its decision. Sources of information referred to in the ID Assessment were said to include movement records and information from overseas immigration authorities. The Applicant pointed out that the document had identified inconsistencies in his travel and education history and a concern that he initially said that he was a Muslim Shia who had left Iran legally and that his Iranian passport had been taken while in Indonesia, when “the” passport (which appears to be a reference to the passport he provided to the Department) had in fact expired prior to that time. Reference was also made to the information that the Applicant had the same residential address as another person who arrived at Christmas Island at the same time, but whom he had not claimed to know.
The Applicant submitted that in the absence of any indication to the contrary in the Authority’s reasons, it could be inferred that the notification and the ID Assessment the subject of the notification was left out of account by the Authority in reaching its decision (see SZMTA at [47]).
There was said to be a realistic possibility that the Authority’s decision could have been different if it had taken the document or information therein into account. This was put on the basis that had the Authority taken the ID Assessment and information therein into account, it could have given weight to the opinions expressed therein or to the source information referred to and that this might realistically have had an effect on its decision (cf. Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34).
The Applicant also submitted that the decision of the High Court in BVD17 said nothing about the circumstances of, and had no application to, the present case.
As indicated, the First Respondent conceded that the notification was invalid. However it was submitted that this was not sufficient to establish jurisdictional error (see BBS16 at [85]-[101]). The First Respondent also pointed out that in AYF16v Minister for Immigration and Border Protection (2018) 264 FCR 654; [2018] FCAFC 129 at [21]-[40] the Full Court of the Federal Court had held that BBS16 was not clearly wrong.
The First Respondent submitted that the High Court’s judgment in BVD17 (in which the notification in issue was not suggested to be invalid) did not affect the application of BBS16 which remained authority binding on this court. It was, however, pointed out that except to the extent procedural fairness overlapped with legal unreasonableness, a procedural fairness analysis was not the “lens” through which the content of the procedural obligations imposed on the Authority in the conduct of a review under Part 7AA was to be determined (BVD17 at [34]). BVD17 was said to confirm that procedural fairness did not oblige the Authority to disclose the fact of notification under s.473GB(1)(a) to a referred applicant (BVD17 at [27]).
The First Respondent pointed out that SZMTA did not concern a s.473GB certificate and therefore contended that it could not be taken to have overruled BBS16. In any event, it was submitted that even if SZMTA were to be viewed as inconsistent with BBS16, the Applicant would still need to demonstrate that the invalid notification was material in the sense discussed in SZMTA at [44]-[51] and that this had not been established.
In this respect, the First Respondent contended that while the purported s.473GB certificate related to an ID Assessment, the Applicant’s identity was not in issue. There was said to be nothing to indicate that the Authority took into account anything in this document (see SZMTA at [23] and [47]). However the First Respondent submitted that the Applicant had not established a realistic possibility that the Authority’s decision could have been different if it had taken something in the ID Assessment into account (SZMTA at [48] and [70]-[71]).
The First Respondent also submitted that the absence of any reference to the certificate or the ID Assessment in the Authority’s reasons did not provide a basis for an inference that the exercise of the discretion conferred by s.473GB(3)(b) was not considered (and see BVD17 at [16].
Consideration
As both parties acknowledged, the purported s.473GB certificate/notification was invalid on the basis contended for by the Applicant. The reason specified (that disclosure would be contrary to the public interest because the ID Assessment was a “[d]epartmental working document”) could not form the basis for a claim of public interest immunity.
As in BBS16 (and also in AYF16), in this case the Authority stated that it had “had regard to the material referred by the Secretary under s.473CB” of the Act. There is no suggestion that the material provided to the Authority did not include the s.473GB certificate (of the same date as the referral) and also the documents to which it referred (see BBS16 at [87] and [92]).
However, while there is no express reference to the s.473GB certificate or the ID Assessment in the Authority’s reasons, there is also no reference to information in that document that would not otherwise have been before the Authority as part of the review material. In particular, while the ID Assessment referred to information from the Applicant’s arrival interview, it is apparent from the courtbook that the record of the arrival interview was included in the referred material (as well as a copy of the Applicant’s visa application). The Authority referred to this interview in its reasons.
In BBS16 what was relevantly in issue was whether the reasoning of Beach J in MZAFZ regarding the consequences which flowed from an invalid s.438 certificate under Part 7 of the Act also applied to a s.473GB certificate in the context of Part 7AA of the Act.
The Full Court found in BBS16 that a s.473GB certificate and related documents would generally be given to the Authority by the Secretary as “review material” which the Authority was (subject to Part 7AA) obliged to consider. It also held that a s.473GB certificate and notification were not “new information” for the purposes of Part 7AA. The Court found (at [96]) that:
… having regard to the statutory regime in Pt 7AA, and s 473GB in particular, if the IAA is given a s 473GB certificate/notification and related information, it is a matter for the IAA to consider whether or not it will have regard to any matter contained in that material. One of the things which the IAA will need to consider in determining whether or not it should exercise that power is whether it considers that the certificate/notification is valid or not. If the IAA determines to have regard to any such material, it then must turn its mind to whether it thinks it appropriate to disclose any matter contained in the material to the referred applicant. In making that decision the IAA must have regard to any advice given to it by the Secretary under s 473GB(2)(b).
Importantly, at [97] the Court described the “remarkable scheme” created under Part 7AA as follows:
The scheme of Pt 7AA is such that the only opportunity which a referred applicant will get to comment on such material is if the IAA decides for itself to disclose the material to the applicant prior to it making a decision on the review. The regime does not create any duty on the part of the IAA (or any entitlement on the part of the referred applicant) to be involved in the IAA’s determinations as to whether the certificate/notification is valid or not, nor whether the IAA should accept or reject any written advice provided to it by the Secretary under s 473GB(2)(b). For completeness, it might be noted that, if in the exercise of its discretion, the IAA decides to disclose some material to the referred applicant under s 473GB(3)(b), the IAA must give a direction under s 473GD concerning restrictions on the publication of the relevant material or its further disclosure (s 473GB(4)).
The Court continued at [98]:
As senior counsel for the Minister frankly acknowledged in oral address, this is truly “a remarkable scheme”. That is an accurate characterisation of those parts of the statutory scheme in Pt 7AA which relate to s 473GB certificates and notifications because of the severe limitations imposed upon disclosure to the referred applicant of any such certificate/notification and the related material, no matter how prejudicial or favourable the material may be. Moreover, even though the discretionary powers conferred upon the IAA by s 473GB have to be exercised reasonably in the legal sense, the opportunity for a referred applicant to challenge the exercise or non-exercise of those discretionary powers will in practice be limited because the person normally will have
no knowledge or awareness of the existence of the certificate/notification or related information. That will be the case even if the IAA has had regard to such material in conducting its review but has determined, in its discretion, not to disclose the existence of that material or any of its contents.
(footnotes omitted)
The Full Court concluded in BBS16 at [99] that the finding in MZAFZ that it was a jurisdictional error “per se” for the Administrative Appeals Tribunal to act upon an invalid s.438 certificate, had no application to an undisclosed s.473GB certificate and the information to which it related.
The Court also found in BBS16 that the Part 7AA regime did not require disclosure akin to that provided for in ss.424A and 424AA of the Act and stated at [100]:
… a referred applicant’s “procedural fairness” entitlements in respect of a s 473GB certificate/notification and related information are exhaustively stated in s 473GB(3). For the reasons explained above, those “entitlements” all depend upon how the IAA exercises its discretionary powers under that provision. …
As the Applicant submitted, in BBS16 the Court left open the possibility of some “scope” for a judicial review challenge to an adverse decision where the Authority had regard to an invalid s.473GB certificate/notification and related information, if the Applicant became aware of this fact. In so far as that leaves room for some argument that jurisdictional error may be established on the basis of an unreasonable exercise of the Authority’s discretionary power in under s.473GB(3), there was no suggestion of legal unreasonableness in this case.
I accept that, as the First Respondent submitted, BBS16 is authority binding on this court and that on that basis no jurisdictional error has been established.
However even if BBS16 is, or ought, to be seen in light of SZMTA, no jurisdictional error has been established. If the Applicant is correct in suggesting that the provision of an invalid s.473GB notification would amount to an unauthorised act in breach of a limitation in the statutory procedures conditioning the performance of the Authority’s duty to conduct a review and hence, subject to materiality, a jurisdictional error, materiality has not been established.
The Applicant has not established that any breach resulting from provision of the invalid s.473GB notification or, indeed, the failure to disclose to him the invalid notification and/or the content of the ID Assessment, was such that compliance could realistically have resulted in a different decision (see SZMTA at [45]).
The Applicant’s identity was not disputed by the Authority. It had before it the record of his arrival interview, as well as his protection visa application. The Authority referred to information in those documents (in particular the different claims about religion).
In so far as the departmental officer’s assessment of “concerns” about or “inconsistencies” in information provided in the arrival interview and visa application referred to in the ID Assessment could possibly be considered relevant to the Applicant’s credit, it is not apparent that had such material been taken into account (or the notification disclosed to the Applicant), this could have enhanced the Applicant’s credit such as to lead to the possibility of a different decision (that is, a favourable decision by the Authority). Nor has it been established that there is otherwise a realistic possibility that the Authority could have come to a different conclusion if it had taken the information or views expressed in the ID Assessment into account.
Even if it can be inferred that the Authority had no regard to the ID Assessment in reaching its decision, the Applicant had made it quite clear that he had left Iran legally and also that his then current passport had been taken from him earlier. There was no reason for the Authority to realistically be expected to find that the Applicant left Iran illegally, when the Applicant himself was claiming to have left legally.
I am not satisfied that there is any realistic possibility that anything relevant to the Authority’s decision could flow from the fact that, as the ID Assessment identified, there might be some inconsistency in the Applicant’s evidence about a person who he had not claimed to know on arrival, but with whom he currently lived. This issue was not a basis for, and had nothing to do with, the reasons the Authority rejected the Applicant’s claims for protection.
If the Applicant’s argument is that the negative aspects of the comments in the ID Assessment may have affected the Authority’s approach to the assessment of his claims, the Authority made its findings based on issues in relation to the Applicant’s own evidence, not the identified inconsistencies. Indeed it recognised the inconsistency between the claim in the arrival interview that the Applicant was Shia Muslim and his claim in his visa application to be atheist but accepted, having regard to his explanation at the interview and consistent identification, that he was an atheist.
If the reasoning in SZMTA is applicable to the invalid s.473GB certificate, materiality has not been established. Hence jurisdictional error has not been established on any basis contended for in ground 2.
As no jurisdictional error has been established, the application must be dismissed.
I certify that the preceding one hundred and two (102) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 4 August 2020
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