CYG18 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 770
•29 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CYG18 v Minister for Immigration and Citizenship [2025] FedCFamC2G 770
File number(s): SYG 1598 of 2018 Judgment of: JUDGE LAING Date of judgment: 29 May 2025 Catchwords: MIGRATION – Application for judicial review of a decision of the Immigration Assessment Authority (“IAA”) – whether the Secretary’s referral of material under s 473CB of the Migration Act 1958 (Cth) was affected by relevant error due to omission of a letter making protection claims – materiality – application succeeds Legislation: Migration Act 1958 (Cth) s 473CB Cases cited: BVI18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 9; (2020) 351 FLR 103
CQR17 v Minister for Immigration and Border Protection [2019] FCAFC 61; (2019) 269 FCR 367
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610
Division: General Number of paragraphs: 33 Date of hearing: 6 March 2025 Place: Sydney Counsel for the Applicants: Mr D Godwin Solicitor for the Applicants: Legal Aid Commission of NSW Counsel for the First Respondent: Mr T Reilly Solicitor for the First Respondent: HWL Ebsworth Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 1598 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CYG18
First Applicant
CYH18
Second Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
29 MAY 2025
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to “Minister for Immigration and Citizenship”.
2.A writ of certiorari issue quashing the decision of the Immigration Assessment Authority dated 3 May 2018.
3.A writ of mandamus issue directed to the Administrative Review Tribunal requiring it to reconsider and determine the matter according to law.
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 LAING:
The applicants seek judicial review of a decision made by the Immigration Assessment Authority (IAA) (as it was). The IAA affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicants Safe Haven Enterprise (Class XE) (Subclass 790) visas (protection visas).
For the following reasons, the IAA’s decision will be quashed. A writ of mandamus will issue requiring the Administrative Review Tribunal to reconsider and determine the matter according to law.
BACKGROUND
The applicants are citizens of Iran. The first applicant (Applicant) applied for a protection visa on 16 September 2016. The second applicant, his daughter, applied as a member of the family unit.
On 13 November 2017, the Delegate refused the application. The decision was referred to the IAA for review.
On 3 May 2018, the IAA affirmed the Delegate’s decision.
THE IAA’S DECISION
The IAA accepted (at [9] and [20]) that:
(a)the Applicant was raised in a Shia Muslim family but no longer believed in Islam or any other religion, although he retained a belief in God;
(b)the Applicant’s daughter was born Muslim, but was no longer religious; and
(c)the Applicant no longer possessed the passport upon which he departed Iran.
The IAA found, however, that the Applicant had “fabricated the majority of his claims for protection” (at [10]). In particular, the IAA did not accept (at [18]-[20]) that:
(a)the Applicant was related to a prominent person identified in the decision;
(b)the Applicant was in conflict with another claimed relative because of his denunciation of Islam or religious opinion;
(c)the Applicant was threatened, detained and tortured, lost his job and had his marriage end due to this conflict;
(d)the Applicant used to express his denunciation of Islam or religious opinion publicly, including at his workplace;
(e)the Applicant’s wife was pressured to divorce him;
(f)the family of the Applicant’s wife rejected the Applicant’s daughter because of the Applicant’s denunciation of Islam or religious opinion;
(g)the Applicant was detained in 2009;
(h)the Applicant lived in hiding;
(i)after leaving Iran, the Applicant’s mother’s house was raided and his brother was put under pressure;
(j)the Applicant had two relatives who were involved in political activities, including one who was given a suspended sentence; or that
(k)the applicants departed Iran on a fraudulent passport.
The IAA did not accept that the Applicant had been imputed with an anti-government political opinion or that his daughter had been harmed because of her father’s denunciation of Islam or religious opinion, or because of her lack of religion. The IAA was not satisfied that the Applicant had publicly voiced his religious views or attempted to proselytise, or that he would have any interest in doing so in Iran. The IAA was also not satisfied that the second applicant would wish to voice publicly her religious views in Iran. The IAA concluded that it was not satisfied that the applicants faced a real chance of harm in Iran on the basis of their religious opinions or practices (at [25]).
Having regard to country information, the IAA was not satisfied that there was a real chance of the applicants returning to Iran involuntarily. The IAA was not satisfied that there was a real chance of the applicants being prosecuted on return to Iran for seeking asylum in Australia. The IAA was not satisfied that the applicants had a profile capable of attracting adverse attention from the Iranian authorities upon return (at [26]).
In circumstances where the applicants departed Iran legally, and did not have an adverse profile, the IAA was not satisfied that there was a real chance that the Applicant would be questioned by the Iranian authorities upon return. Even if the Applicant were questioned, the IAA considered that this would not amount to serious or significant harm. If the authorities became aware of the applicants’ asylum application, the IAA was not satisfied that the applicants would be imputed as holding an anti-government or anti-Islamic opinion. The IAA concluded that it was not satisfied that the applicants faced a real chance of relevant harm from the authorities as failed asylum seekers from a western country (at [26]-[27] and [33]).
Having regard to the above, the IAA concluded that the applicants were unable to meet the criteria for the protection visas. Accordingly, the IAA affirmed the Delegate’s decision (at [28]-[36]).
APPLICATION FOR REVIEW
The applicants sought review of the IAA’s decision through an application filed on 6 June 2018. The matter remained in the central migration docket for some time and was previously docketed to another judge before being docketed to me and listed for hearing. The applicants ultimately relied upon an amended application filed with submissions on 21 February 2025 containing the following ground:
1.The IAA decision is affected by jurisdictional error as the First Respondent failed to comply with s 473CB(1)(c) of the Migration Act.
Particulars
a.The First Respondent did not provide to the second respondent the letter from Freedom House dated 9 April 2013 which was in the First Respondent’s possession and which supported the applicant’s claims.
(As per the original)
Section 473CB relevantly provided:
MIGRATION ACT 1958 - SECT 473CB
Material to be provided to Immigration Assessment Authority
(1)The Secretary must give to the Immigration Assessment Authority the following material (review material) in respect of each fast track reviewable decision referred to the Authority under section 473CA:
(a) a statement that:
(i)sets out the findings of fact made by the person who made the decision; and
(ii)refers to the evidence on which those findings were based; and
(iii)gives the reasons for the decision;
(b)material provided by the referred applicant to the person making the decision before the decision was made;
(c)any other material that is in the Secretary's possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review;…
A number of cases have found relevant error to have been established on account of what has been held to have been unreasonable failure by the Secretary, through delegates, to provide or consider providing “other material” within the contemplation of s 473CB(1)(c).
The applicants drew attention, by way of example, to the decision in BVI18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 9; (2020) 351 FLR 103 (Judge Driver). In that case, jurisdictional error was found by reference to a failure of the Secretary to provide the IAA with the record of an interview conducted with the applicant in Nauru.
There have also been cases in which an argument of this nature has not succeeded. The Minister drew attention to the example of CQR17 v Minister for Immigration and Border Protection [2019] FCAFC 61; (2019) 269 FCR 367 (CQR17). In that case, an inference was not drawn that the Secretary contravened s 473CB(1)(c). Even if the inference had been drawn, it was found that the contended non-compliance would not have been material (see [28]-[52] per Jagot J).
Ultimately, each case must turn upon its own facts.
In cases involving an alleged contravention of s 473CB(1)(c) of the Act, an issue may arise as to whether the documents in question were within “the Secretary's possession or control”. However, in the present case, I was advised at hearing that it was not disputed that the letter from Freedom House was within the Secretary’s “possession or control” and capable of being located through reasonable searches. Having regard to the evidence before me concerning the nature of the document and its addition to the Applicant’s “file”, I accept that this was a reasonable position for the parties to have taken. The parties confirmed at hearing that the only issues for determination by the Court concerned the significance of the document, namely:
(a)whether the document was so significant that it should be found that s 473CB(1)(c) was contravened; and
(b)if so, whether any such contravention was relevantly material.
Relevant to the first question is what was said by Jagot J in CQR17:
34.For reasons which will become apparent, in the circumstances of the present case, this question tends to collapse into the other question the appellant posed – was it legally unreasonable for the Secretary to have concluded that the documents were not relevant?..
39.… The test is not whether I consider the document might have been or was relevant to the review. Nor is the test whether I could have subjectively concluded that the document was irrelevant to the review. The test is whether there is an evident and intelligible justification for the conclusion that the document was not relevant to the review.
In the present case, even accepting the caution that should accompany consideration of a ground of this nature, I am unable to see how the Secretary, had they or their delegates turned their mind(s) to the document in question, could have reasonably concluded that the document was not relevant.
The Applicant had claimed to face harm on account of his religious views. He claimed that he had previously experienced harm on this account, including from members of his family. Associated claims were made on behalf of the second applicant.
The document in question is a letter expressed to have been from the Director of “Middle East and North Africa Programs” for an organisation named “Freedom House”. A telephone number appears on the letter. A lengthy “Board of Trustees” is specified at the side of the letter along with a logo. The organisation is stated to have been founded in 1941. A further logo indicating that the organisation had been “advancing freedom for 70 years” appears on the letter. The contents of the letter were as follows (redacted to prevent identification of the applicants):
[The Applicant] has been persecuted by the Iranian government for his non-religious beliefs. [The Applicant] would be at risk of arrest, further imprisonment, and abuses by the authorities were he to return to Iran. I therefore write to urge you to consider his case and grant him refugee status.
[The Applicant] fled Iran on [redacted] fearing that he would be imprisoned for his peaceful beliefs. In Iran, [the Applicant] was in touch with various dissident religious groups. He was threatened by some fundamentalist groups and the clergy, particularly [redacted]. The authorities also began harassing [the Applicant] and his family in 2007 because of his background in peaceful activism.
Due to [the Applicant’s] refusal to believe in Islam, the clergy also wanted to send him to the court to be unjustly convicted. [A prominent relative] prevented a conviction from that clergy. Unfortunately, after his [relative died], [the Applicant] no longer had protection from the unjust rule of law practices often implemented by the Iranian regime and had no choice but to flee the country.
Given the severe lack of religious freedom in Iran, [the Applicant] would be at risk of arrest and imprisonment if he were to return. In recent months, the Iranian government has greatly increased the length of prison sentences and number of executions of prisoners of consciousness. I therefore ask you urgently to consider his case for refugee status.
Thank you very much for your help on this sensitive matter.
The Minister submitted that it would have been open to the Secretary to have considered the Freedom House letter not to have been relevant. In support of this, the Minister submitted that the content of the letter materially deviated from, or was inconsistent with, the claims ultimately pressed by the applicants. In particular, the Minister submitted that:
(a)The letter asserted that, due to the Applicant's refusal to believe in Islam, the clergy wanted to send him to Court to be unjustly convicted (but this was prevented by the Applicant’s relative). However, the applicants made no such claim in their visa application. Instead, they claimed that the clergy detained the Applicant and hit him many times, but he was released because of his relative’s influence (CB 118).
(b)The letter asserted that the authorities began harassing the Applicant and his family in 2007 because of his background in peaceful activism. However, the claim pressed was that the authorities started to harass the Applicant as far as back as 2001 (CB 117-118) and there was “very little (if any)” claim that was pressed regarding harassment of the Applicant’s family.
(c)Although the letter asserted that the applicants departed Iran because the Applicant feared he would be imprisoned for his peaceful beliefs, the claim pressed was that he departed Iran following his relative’s death and consequent inability to protect him. The Applicant’s fear of being imprisoned for peaceful beliefs was not specified (CB 120).
(d)Whilst the letter claimed that the Iranian government had greatly increased the length of prison sentences and the number of executions of prisoners of “consciousness” in the months prior to the date of the letter, no such claim was made in the protection visa process.
(e)Although the letter stated that the Applicant was in touch with various dissident religious groups, the applicants made no such claim in their visa application.
Many of the issues raised by the Minister above concern particular details additionally provided or omitted regarding problems said to have been faced by the applicants, rather than, necessarily, inconsistencies in the applicants’ claims. For example, the claim in the letter that the clergy wanted to convict the Applicant was not inconsistent with claims that they had detained and harmed him. The claim in the letter that the author was aware that the authorities began harassing the Applicant and his family in 2007 because of “peaceful activism” did not necessarily preclude earlier instances or periods of harassment of the Applicant. Although the Applicant did not “specify”, at CB 120, a claim of fearing imprisonment for peaceful beliefs, the Applicant did claim in his statement that he had fled Iran after being detained on account of his beliefs, and that he feared further detention. The claim that the Iranian government had increased sentences at the time of the letter was not inconsistent with the claims made in the protection visa application process some years later. Although it is not apparent that the Applicant specifically claimed to be in contact with “dissident religious groups” as part of the protection visa process, it has not been demonstrated that this was inconsistent with his claims to have been persecuted on account of his expressed religious views.
In any event, even assuming that the matters raised by the Minister were capable of affecting the weight ultimately attributed to the letter, this does not explain why it was not relevant. Nor is this explained by the mere fact that the applicants had not provided the letter with their protection visa application.
The applicants had applied for protection visas, based upon their circumstances in Iran. The letter from Freedom House raised protection claims regarding their circumstances in Iran. This included protection claims subsequently made by the applicants, including that they faced persecution arising from the Applicant’s religious beliefs, on account of which they claimed that he had previously been persecuted.
Within this context, although there may have been limitations associated with the document, it is difficult to conceive of an available chain of reasoning by which the Freedom House letter was not “relevant to the review”.
For the above reasons, I accept the applicants’ contention that the non-referral of this material lacked an evident and intelligible justification.
The Minister submitted that it had not been demonstrated that the letter was capable of rationally affecting the IAA’s assessment of the claims pressed by the applicants. In this regard, the Minister relied upon the issues with the letter identified above and also upon the fact that the letter did not accompany the protection visa application. The Minister observed that nothing in the letter indicated the source(s) of the information relied upon by the author and that country information asserted in the letter was not current by the time the matter had been referred to the IAA. In these circumstances, the Minister submitted that materiality had not been demonstrated.
It is possible that the outcome would not have been different if the letter had been included with the referred material. The letter did, as was submitted by the Minister, have limitations. However, the threshold for materiality is not a high one: see LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610 at [7] to [16] per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ. I accept the applicants’ submission that it has been met in the present case.
As was submitted by the applicants, the letter made claims regarding the Applicant requiring protection. It was provided by what appeared to be an international organisation of 70 years standing that may have been expected to have had some concern for its reputation. The IAA’s decision turned largely upon credibility findings. Those findings relied, amongst other things, upon a lack of corroboration. Whether or not the letter in question was sufficient to displace the IAA’s credibility concerns would have been a matter for evaluation by the IAA. It is possible that the IAA’s assessment may have been different if the letter had been provided to it by the Secretary. This is so even if it is not necessarily likely that the outcome would have been different had the letter been provided.
CONCLUSION
For the above reasons, the application before this Court succeeds.
I will hear from the parties in relation to costs.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 29 May 2025
0
4
1