Daa16 v Minister for Immigration
[2020] FCCA 2553
•11 September 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DAA16 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2553 |
| Catchwords: MIGRATION – Application to review decision of Immigration Assessment Authority – whether the Authority reached an arbitrary and irrational conclusion – whether failure to give proper, genuine and realistic consideration to the merits of the case. |
| Legislation: Migration Act 1958 (Cth) |
| Cases cited: Buadromo v Minister for Immigration and Border Protection [2017] FCA 1592 |
| Applicant: | DAA16 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 2803 of 2016 |
| Judgment of: | Judge Barnes |
| Hearing date: | 26 November 2019 |
| Delivered at: | Sydney |
| Delivered on: | 11 September 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms Baw |
| Solicitors for the Applicant: | Kah Lawyers |
| Counsel for the Respondents: | Ms Laing |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The name of the First Respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2803 of 2016
| DAA16 |
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 14 September 2016 affirming a decision of a delegate of the First Respondent not to grant the Applicant a Temporary Protection (Subclass 785) visa (TPV).
The Applicant, a citizen of Iran, arrived in Australia in September 2012. On 8 December 2015 the Applicant was invited to apply for a TPV or a Safe Haven Enterprise (Subclass 790) visa. He lodged an application for a TPV on 5 January 2016. He attended an interview with a delegate of the First Respondent. On 11 July 2016 the application was refused. As the Applicant’s application was a fast track reviewable decision, it was referred to the Authority. On 22 July 2016 the Applicant, who was self-represented, emailed a written submission to the Authority. The Authority affirmed the delegate’s decision on 14 September 2016.
In essence, the Applicant claimed primarily to fear harm in relation to accusations that he was involved in the murder of an officer of the Basij paramilitary militia. The Applicant claimed that on 31 July 2012 he, his cousin and his cousin’s wife were involved in an incident outside a shop in his home town in Iran when Basij officers approached his cousin’s wife about her hijab being worn incorrectly. The Authority described the Basij as a volunteer paramilitary force which enforces Islamic cultural codes of behaviour. The Applicant claimed that he and his cousin attempted to intervene; that more officers and then bystanders became involved; and that an altercation occurred in which one of the Basij officers was injured.
The Applicant claimed that he, his cousin and his wife were taken by car to a Sepah or Basij base and detained overnight, treated roughly, spoken to aggressively and sprayed with something that may have been capsicum or pepper spray. According to the Authority the Basij operates under the command of Sepah (the Islamic Revolutionary Guard Corps), Iran’s most powerful internal security force. The Applicant claimed that the next morning they were questioned and made to sign documents without reading them. They were then taken to court. He claimed that they were not charged as the judge said he wanted to wait until he had more information about the injured guard before he made a decision about whether they were involved or responsible. They were released without charge, on a surety of property deeds provided by the cousin’s father (referred to as the Applicant’s uncle) and were advised that they would be summonsed to return to court in ten days time.
The Applicant claimed that the injured Basij officer subsequently died from his injuries.
He claimed that a few days later (on 5 August 2012) they each received a “strange summons” requiring them to appear at “Sepah Intelligence” at the Sepah base in Tehran on 7 August 2012. He provided the original and a translation of this document to the delegate. The document did not purport to be issued by a court. Rather, it bore what the translator described as the emblem of Sepah and stated that it was from the “Army of the Guardians of the Islamic Revolution Basij Organisation”. It was described as a: “Letter of Summons”, addressed to the Applicant as “the Accused” and was said to be signed by a Sepah captain in the “Sepah Judicial Division” in Tehran. The subject of the summons was described as: “Answering to a few questions”. The translation in the courtbook states: “Failure of your attendance on the arranged time, results in legal measures and issuance of judgment by default”, although, oddly, the delegate recorded that “the English translation of the summons provided by the applicant, notes that ‘Failure to attend will lead to adoption of legal action and a decision will be made in absentia’”.
The Applicant claimed that on receipt of this letter of summons they contacted their lawyer (who they had seen after their court attendance and who had advised that they should inform her when they received a summons from the court); that she was initially surprised they had been summoned so quickly; that she told them it was unusual and dangerous to receive a summons from Sepah; and that on investigation she found out that the Basij officer had died. According to the Applicant, the lawyer suggested that the summons was a trick to detain them and that Sepah and the Basij planned to charge them with the murder of the Basij officer. He claimed that she advised them they would most certainly be convicted and executed, that she would not take their case and that they should “run from” Iran very quickly. He claimed that they left Iran on the day they were to attend the Sepah base, entering Afghanistan illegally with the help of a people smuggler.
The Applicant claimed that he and his family knew that the Sepah summons was not official and was not issued by the court. He claimed that after he left Iran he was informed by his family that property of his uncle that was used as surety had been confiscated and that the family of the deceased Basij officer had approached his family home on one occasion asking about his whereabouts. However he confirmed that none of his family members had been issued with any summons or arrest warrant on his behalf. While he made claims about the possibility that he could be sentenced in his absence, he did not claim that this had happened.
In his submission to the Authority the Applicant claimed that the family of the Basij officer had also visited his uncle’s home a number of times accompanied by a court soldier. They stated that they had a court letter and threatened to have the Applicant, his cousin and his cousin’s wife killed under “qisas” law (which allows a victim’s family to demand retribution). The Applicant also claimed that his parents had received threatening phone calls over a number of days, as had his uncle.
The Authority’s decision
The Authority observed that much of the Applicant’s submission to it made arguments relating to the delegate’s reasoning on the basis of country information and claims that were before the delegate. However it acknowledged that the submission also cited several sources of information which were not before the delegate and made new claims relating to the behaviour of the Applicant’s cousin in Australia. The Authority was satisfied that the requirements of s.473DD of the Migration Act 1958 (Cth) (the Act) were met and stated that it had considered the new information in the submission.
The Authority noted that the delegate had put information to the Applicant during the TPV interview regarding legal processes in Iran in general terms and without specifying the source of the information. It found that no information regarding the treatment of failed asylum seekers or persons who departed Iran illegally had been put to the Applicant, who had been unrepresented before the delegate. The Authority was satisfied that to the extent that the Applicant’s submission to it referred to new country information to support his arguments, he could not have provided this new information prior to the delegate’s decision being made and that there were exceptional circumstances to justify considering the new information.
The Authority recognised that in his submission the Applicant had raised a new claim relating to the behaviour of his cousin (in Australia) and had cited a United Nations High Commissioner for Refugees report in relation to any credibility assessment of “differing information” before the Department about the night he spent in detention in Iran. It found that the Applicant had not been given any details as to what this “differing information” was, other than a reference by the delegate to an interview. The Authority was satisfied that the Applicant could not have provided the new information prior to the delegate’s decision and that there were exceptional circumstances to justify its consideration.
The Authority summarised the Applicant’s claims, including the claim in his submission that at the time he departed Iran he had a good life, he was close to graduating from university, he was playing sport at a professional level, his family was wealthy and well-known, he was an elite athlete being groomed to be in an Iranian national team and a musician who played and socialised with the most famous Iranian musicians.
The Authority also summarised the Applicant’s claims about the Basij incident, the appearance in court and the receipt of a summons from Sepah. It described his claims about repercussions after his departure, as follows:
The applicant’s uncle’s house which he had used as surety was confiscated and SMH transferred his house to his father as compensation. Soon after the applicant’s departure, on one occasion, the victim's family approached the applicant’s house and asked about his whereabouts. The applicant’s father has also received threatening phone calls from the Basij. The victim’s family have also visited his uncle, accompanied by a court soldier stating they had a court letter and telling him they would find the applicant, [the cousin] and [the cousin’s wife] and have them killed under ‘qisas’ law, which allows a victim’s family to demand retribution. The applicant's family have consulted lawyers who have advised that because the victim was a public servant, the government, in addition to the victim’s family, will be after them.
The Authority recorded that the Applicant feared that he would be tortured and executed or that the family of the dead officer would have him killed under “qisas” law.
It noted that the Applicant also claimed that he had not yet completed his compulsory military service and would be eligible to undertake it if he returned home to Iran. He also claimed that he had been in a relationship with his cousin’s wife whilst in detention in Australia. He claimed that he was no longer in contact with his cousin or his cousin’s wife and that his father was not in contact with his cousin’s father.
As the Authority’s findings in relation to what it described as the “[i]ncident with the Basij and subsequent legal proceedings” are the subject of the grounds of review, they are set out in full. The Authority stated:
10. The applicant has been consistent in his claims regarding the incident with the Basij and subsequent events since his arrival in Australia and his evidence at the TPV interview was relatively detailed. There are also aspects of the applicant’s claims that are supported by country information. The Basij enforce Islamic cultural codes of behaviour and patrol the streets in groups of both males and females to check the clothes people are wearing. They may use violence and force to make women cover up and may take women to the police station. As the applicant claims, a guarantor is required to post a property deed or bank deposit to obtain bai1 and that property is confiscated in the event that the accused leaves the country. Country information confirms the ability of a victim’s family to seek punishment of retribution in kind (including in cases involving murder of revolutionary guards). Consistent with the applicant’s claims that his lawyer refused to take on his case out of fear of retribution, there are reports of lawyers being prosecuted for representing prisoners of conscience, political and security prisoners. However, while that information supports some aspects of the applicant’s claims, I have significant concerns over the plausibility of other, significant elements of the claims when considered in the context of country information.
11. It is the applicant’s claim that when he was released by the court, he was told that he would be summoned to appear in ten days. However, he says that rather than receiving a summons from the court, he received a summons from Sepah Intelligence a number of days later. The Islamic Revolutionary Guard Corps (IRGC) or Sepah has the responsibility for ‘guarding the Revolution and its achievements’ and is considered Iran’s most powerful internal security force, at times cooperating and competing with the Ministry of Intelligence and Security and other security organisations. The IRGC intelligence arm carries out arrests and maintains its own detention facilities. The Basij is a volunteer paramilitary force operating under the command of the IRGC.
12. As the applicant submits, there are elements of his claims regarding the summons, and the document itself, which are consistent with country information. However, much of that information relates to summonses requiring attendance in court, whereas the applicant’s summons required him to present to Sepah Intelligence. The applicant claims to have been advised by his lawyer that the Basij officer had died and that the Sepah summons was unusual and was a ‘trick’ to detain him and his relatives so as to accuse them of the crime. He said that when a person passes away, the authorities do not issue any warrants or summonses but rather, just arrest the accused, and the summons was a way of ‘freaking them out’ so they would go voluntarily to the centre.
13. There are informal detention centres run by intelligence and security forces to which the judiciary has no access and where persons are kept in incommunicado detention, suggesting that Sepah could detain the applicant without any formal court orders, and I accept that there is some evidence of intelligence officials issuing summonses, including as a precursor to arrest. However, information refers to summonses issued by intelligence organisations being handwritten and looking unofficial, which is not the case here, or being made verbally (despite that being illegal), as officials are said to be reluctant to document the criminal process. Examples of cases where summonses are issued by intelligence officials referred to human rights defenders, women’s rights activists, students, labour activists, journalists or ‘sensitive’ cases such as religious minorities rather than murder cases. Country information indicates that in the case of a murder suspect, the police would arrest the person on the spot when serving a summons. While arrests can only be made in certain circumstances under Iranian law which generally require involvement of a court, a judge can order a person to be detained without issuing a summons if the crime is punishable by death or amputation. The information also indicates that, in practice, the authorities do not observe the provisions of law and regularly make arrests without issuing summons, warrants or any other court documents.
14. However, even apart from those issues, the most significant concern with the applicant’s evidence arises from the lack of repercussions from his failure to attend the Sepah, his departure from Iran while released on bail and the claimed accusations against him. The applicant claims that following his departure his family received a few phone calls from the Basij, and replied that if there is a problem, they are not legally responsible for it. He indicates in the submission to the IAA that these were threatening calls, received over a number of consecutive days. He says that the victim’s family approached his house on one occasion and that of his uncle a number of times, accompanied by a court soldier and stating that they had a court letter. For the reasons below, I find it completely implausible that if the applicant was implicated (rightly or wrongly) in the death of a Basij officer, following which he failed to comply with a Sepah summons and absconded while on bail, the Iranian authorities would take so little action to locate him.
15. When the applicant was bailed, he was told by the court that he would be summoned to appear within ten days. He does not claim that his family ever received a further summons from the court, (noting that country information indicates that a summons can be served on family members in the absence of the accused) or that Sepah took any action in respect of his non-compliance with the summons he claims they issued. Where a person is summoned in a criminal case the person must report to the authorities within three days or, if the summons has been published in the legal gazette (where a person has no known address) within ten days. If a person fails to report when summoned, an arrest warrant may be issued and after being summonsed several times, a trial may commence in absentia, including where the person has left the country. While I accept that Iranian courts do not necessarily always issue written judicial documents and, as submitted by the applicant, that legal processes are irregular and secret, I find it implausible that despite claiming to have been released on bail and implicated in a murder, the applicant does not claim to have been issued with a further summons or indeed to have had any further communication from the court or Sepah following his failure to appear.
16. Nor does the applicant claim that there were any searches or investigation into his whereabouts other than a few telephone calls. The information before me indicates that a person who does not comply with a summons will be searched for and, as set out in the applicant’s submission to the IAA, the Iranian Criminal Code also indicates there will be an investigation into the absence of an accused. Given that the applicant left illegally, the authorities would not necessarily have been aware that he was absent from the country and I find it inconceivable that there would not have been some sort of search process following his non-appearance. Country information indicates that where an accused with a pending case has left the country, family members, including the guarantor, will not face any problems with the authorities (other than relating to confiscation of the property) unless they have helped an accused to escape. On the applicant’s evidence, there are clear indications that his family were involved in his departure or aware of his whereabouts, given his claim that his uncle travelled with [his cousin’s wife and son] to meet them at the airport in Qatar, his evidence that he was in contact with his family following his departure, and the claim at the TPV interview that his brother later obtained university documents for him using a power of attorney that he had given just prior to his departure. I find it completely implausible that there would have been no search of the applicant's house or investigation into his whereabouts or his family’s role in his absconding in the period following his departure or subsequently, particularly considering the nature of the crime of which he was accused.
17. I accept that official actions do not always comply with law or practice, and that the rule of law in Iran is weak. I have had regard to the consistency of the applicant’s evidence, and also the summons document he submitted, an examination of which by the Department’s Document Examination Unit proved inconclusive. I accept from the references accompanying his TPV application that the applicant is talented and accomplished and I have considered his submissions regarding his circumstances in Iran and the incongruity of the timing of his departure and the steps he took to reach Australia in light of those circumstances.
18. However, these matters and the existence of the document purporting to be a summons from Sepah do not outweigh my concerns as to the inherent implausibility of the applicant’s claims. The applicant claims to have been implicated in the murder of a Basij officer. Notwithstanding his claimed innocence, on his own evidence the disturbance is said to have commenced when he and his cousin attempted to stop his cousin’s wife being taken away. He claims to have been arrested on the spot and that there were a number of Basij officers present. In these circumstances, even accepting it is possible that a person in such circumstances could be granted bail, I find it completely implausible that following his failure to comply with a Sepah summons, Sepah, the police, the court or other authorities would have taken no action to locate the applicant other than to telephone his family on a number of occasions and accompany the victim’s family to his uncle’s house with a court letter. Nor, given the applicant claims to be aware of the phone calls and visits which were made following his departure, am I satisfied that further action was taken of which the applicant is unaware. I do not accept that the applicant was involved in an altercation with the Basij or that any of the claimed subsequent events occurred. I find that the applicant is not wanted by the Iranian authorities and am not satisfied that there is a real chance of the applicant being harmed in respect of any of these matters.
(footnotes omitted)
In considering the Applicant’s relationship with his cousin’s wife (while in detention in Australia), the Authority observed that adultery was punishable by execution under Sharia law. It noted, however, that the Applicant did not claim to fear any harm in relation to this past relationship, although he had claimed in his submission to the Authority that his cousin had made death threats against him which were reported to the police. In the absence of evidence of harm or attempted harm to the Applicant or that the relationship was known to people in Iran, the Authority was not satisfied that there was a real chance of the Applicant of being harmed in connection with this relationship.
The Authority accepted that the Applicant had not completed his military service and that he may be punished with four or six months extra service and may be fined. Given the Applicant’s evidence that military service was “not a big deal or a big concern” for him, the Authority was not satisfied that the imposition of extra service would amount to serious harm or, given the claims about his family’s financial situation, that the imposition of a fine would amount to serious harm.
The Authority considered the Applicant’s claim that he left Iran illegally and was not in possession of a passport. It accepted that any return to Iran would require consultation with the Iranian authorities who may infer that the Applicant had sought asylum in Australia. It noted that there was country information about the treatment of asylum seekers who had left Iran on their own passport, but that the Applicant claimed he had left Iran illegally. On the material before it the Authority was not satisfied that the “fact of claiming asylum or spending time in Australia of itself leads to an imputation of a political opinion or other adverse profile”. In light of its findings regarding the Basij, the Authority also had “some doubt” about the claim the Applicant left Iran illegally. In any event, it was not satisfied that there was a real chance that the Applicant would be subjected to serious harm as a result.
The Authority accepted that on return to Iran the Applicant may be questioned to establish his identity and may be subject to a fine for departing Iran illegally, which it found he would be able to pay. It had regard to its rejection of the credibility of the Applicant’s claim to be at risk because he left Iran while facing court proceedings and the fact that it did not accept that he was wanted by the authorities in respect of the altercation with the Basij or subsequent events. The Authority noted that the Applicant had not claimed to have been politically active. It found there was nothing in his background or the combination of his circumstances to indicate that he would be of adverse interest to the authorities.
The Authority concluded that the Applicant did not have a well-founded fear of persecution and that it was not satisfied that there was a real chance that he would be persecuted if he returned to Iran.
In considering the complementary protection criterion, the Authority referred to its earlier findings that it did not accept that the Applicant was involved in an altercation with the Basij, that he had been implicated in a murder or that he was wanted by the authorities for such reasons. Given these factual findings, it was not satisfied that there was a real risk of the Applicant suffering harm in relation to these matters.
The Authority also found that as the Applicant’s relationship with his cousin’s wife was not known to persons in Iran and there was no evidence to suggest that his cousin had attempted to harm him beyond making threats, it was not satisfied that there was a real risk of the Applicant being harmed in connection with his relationship with his cousin’s wife.
The Authority accepted that there was a real risk the Applicant would be required to perform extra military service and would possibly be subjected to a fine. It was not satisfied that the imposition of such a fine or extra service amounted to significant harm given the Applicant’s evidence, his family’s situation and the fact that such consequences would not amount to arbitrary deprivation of life, the death penalty or involve the level of pain, suffering or extreme humiliation required to satisfy the definitions or torture, cruel or inhuman treatment or punishment or degrading treatment or punishment under s.5(1) of the Act.
The Authority also referred to its findings that there was not a real chance that the Applicant would face any adverse treatment beyond a fine, which he would be able to pay, and a brief period of questioning in relation to his illegal departure from Iran. It found that the imposition of a fine and questioning did not come within any of the definitions of conduct amounting to significant harm. The Authority was also not satisfied that there was a real risk of the Applicant facing harm for having spent time in or having claimed asylum in Australia, including when considered with his illegal departure from Iran and his failure to perform military service.
The Authority was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant being returned to Iran, there was a real risk that he would suffer significant harm. It affirmed the decision not to grant the Applicant a TPV.
Ground 1
The Applicant relies on an amended application (the application). There are two grounds of review. The first is as follows:
1. The Second Respondent (IAA) erred in rejecting the Applicant’s claim on the basis that it was “completely implausible”, a conclusion which was arbitrary and irrational.
Particulars
a. The IAA did not accept that the Applicant was wanted by the Iranian authorities for being implicated in the death of a Basij officer because it found that when the applicant failed to comply with a summons there was no search for him by the authorities.
b. The Tribunal’s (sic) conclusion was based on an arbitrary and irrational assumption about the operations of the Iranian authorities.
c. The Tribunal’s (sic) decision-making was not founded on probative material and logical grounds, such as to constitute jurisdictional error.
The Applicant took issue with the Authority’s approach to his claim that he was wanted by the Iranian authorities due to the death of a Basij officer. In submissions the Applicant set out in detail the chronology of claimed relevant events. It was observed that the Authority found that it did not accept that the Applicant was involved in an altercation with the Basij or that any of the claimed subsequent events occurred and that in paragraphs 14 to 18 of its reasons (set out at [17] above) it had found aspects of his claims to be “completely implausible”.
The Applicant submitted that the reason the Authority did not accept his claims about the Basij altercation or that any of the subsequent events occurred, was that the authorities had not searched for him following his non-attendance in response to the summons he claimed he had received from Sepah. The Authority’s finding in this respect was said to be of central importance to its reasoning.
It was submitted that in the absence of a logical or probative foundation for the Authority’s finding, it was appropriate for the court to infer that the Authority’s decision-making was arbitrary and irrational such as to constitute jurisdictional error. The Applicant referred to Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [40]-[42] per Gummow ACJ and Kiefel J (dissenting) in support of the proposition that, as stated in WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 74 at [22] per Lee and Moore JJ, a decision-maker was only empowered to make a determination regarding a visa application where that determination was “based on findings or inferences of fact that are grounded upon probative material and logical grounds”. The Applicant also referred to the fact that in SZMDS, Crennan and Bell JJ had indicated at [135] that a decision might be said to be illogical or irrational if there was “no logical connection between the evidence and the inferences or conclusions drawn”.
It was noted that WAIJ was referred to by Gordon J in SZLGP v Minister for Immigration and Citizenship [2008] FCA 1198. The Applicant also referred to the remarks of Allsop CJ (with whom Markovic and Steward JJ agreed) in Hands v Minister for Immigration and Border Protection [2018] FCAFC 225 at [44]-[47] in relation to whether a central finding of fact had been made “without any probative foundation” such as to constitute jurisdictional error.
The Applicant pointed to the fact that while on the one hand the Authority had found it “completely implausible” that more had not been done to search for him, on the other hand it had accepted that official actions did not always comply with the law or practice, that the rule of law was weak in Iran and that legal processes were irregular and secret. It had also observed that cited country information related to the legal processes of the courts, whereas the summons the Applicant received required him to present himself to Sepah intelligence in Tehran, which he saw as a major escalation to a very powerful and secret organisation. The Applicant submitted that for the Authority to reach the conclusive view that his claim was “implausible” in the face of these express contradictions and with no other reason given, indicated a reasoning process that lacked an intelligible justification.
The Applicant also submitted that, seen in this context, the Authority’s statement at paragraph 16 of its reasons that: “The information before [it] indicates that a person who does not comply with a summons will be searched for” was an “offhand remark” or a “throw-away line”, with no information as to the extent of such search and whether this applied to a court issued summons or a Sepah issued summons. It was suggested that there was nothing in the country information about the extent of Sepah searches for people who did not appear in response to a summons.
The Applicant contended that Authority’s reasoning in relation to the degree to which the Iranian authorities would be expected to carry out a search or investigation into his whereabouts was merely speculative and that the determination that there was no search or that it was insufficient lacked any basis in findings or inferences of fact grounded upon probative material and logical grounds. It was submitted that an expectation of the Authority that more should have been done by the authorities for the Applicant’s claim to be believed was not supported by any country information and was an arbitrary and irrational finding.
It was also pointed out that the Authority had acknowledged that the summons the Applicant claimed he received was not from a court, but was from Sepah, which it had noted was Iran’s most powerful internal security force. The Authority had also accepted (at paragraph 13 of its reasons) that there were informal detention centres in Iran run by intelligence and security forces to which the judiciary had no access and where persons were kept incommunicado in detention and that this suggested that Sepah could detain the Applicant without any formal court orders. It was submitted that this was consistent with what the Applicant said had happened to him after the Basij incident. The Applicant also observed that the summons in question stated that if he did not appear, a decision would be made in his absence.
In addition, the Applicant submitted that the Authority had made an erroneous finding that he had not claimed that there had been further communication from the court or Sepah after he left Iran, when in fact he had claimed that his family had received threatening phone calls and that retribution had been and was sought by the deceased’s family. It was also suggested that, contrary to the finding of the Authority, the Applicant’s claim was that the family of the deceased Basij officer had visited his family home with a court letter, not his uncle’s home.
Further, it was submitted that the Authority had conflated all the Iranian authorities and had ignored the fact that while a court had released the Applicant pending further investigation, it was Sepah that had issued the summons that caused him to flee. It was noted that the Applicant’s claim was that at the time he fled Iran, the court had not yet taken any steps to charge him or to specify any crime of which he would be accused. Counsel for the Applicant suggested that the court letter referred to in the Applicant’s evidence may have been the summons that the judge had foreshadowed. In any event, it was argued that the Authority had failed to acknowledge the submission, supported by country information, that Sepah was a separate, powerful and secretive organisation. It was also suggested that the Applicant’s fear was supported by his evidence that he had been mistreated by Sepah whilst detained overnight after the incident involving the Basij officer.
The Applicant also referred to the fact that while the Authority had accepted “that Iranian courts do not necessarily always issue written judicial documents and, as submitted by the applicant, that legal processes are irregular and secret” and that “official actions do not always comply with law or practice, and the rule of law in Iran is weak”, it had nonetheless relied on country information about the Iranian Criminal Code without referring to any information on “the operation of the Criminal Code by the authorities”.
The Applicant also took issue with the Authority’s finding that: “Nor, given the applicant claims to be aware of the phone calls and visits which were made following his departure, am I satisfied that further action was taken of which the applicant is unaware”. It was submitted that this finding had failed to take into account the fact that the Sepah summons expressly stated that non-attendance “results in legal measures and issuance of judgment by default”. This aspect of the summons was also said to be consistent with country information before the Authority. It was contended that it was unreasonable for the Authority to have effectively ruled out the possibility that further action by Sepah had in fact been taken without the Applicant’s knowledge.
Thus, it was said to be mere conjecture or speculation for the Authority to proceed on the basis that it was completely implausible that the authorities would not have taken action to locate the Applicant beyond that to which he had attested. Such decision-making was said not to be founded on probative material and logical grounds. The Authority’s conclusion was also said to be based on an arbitrary and irrational assumption about the operations of the Iranian authorities.
The First Respondent suggested that it was not correct to say that the only reason the Authority made its decision was its concern about the limited action taken by the authorities. There were said to be additional reasons given, such as the fact that the Authority had some difficulty understanding why Sepah would not simply arrest the Applicant rather than go through the process of issuing a summons. It was, however, conceded that the limited action taken by the Iranian authorities to locate the Applicant was important to the reasoning of the Authority and was its most significant concern.
The First Respondent referred to BEH15 v Minister for Immigration [2019] FCAFC 184 at [34] in which the Full Court of the Federal Court cited relevant principles in relation to credibility findings and legal unreasonableness. It was acknowledged that the law in relation to irrationality and illogicality was not really in doubt, but pointed out that there was a high threshold for the Applicant to meet as “extreme” illogicality must be demonstrated “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions” (Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 at [148]) and that “a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker” (SZMDS at [135] per Crennan and Bell JJ).
It was also pointed out that while findings must have a probative basis, this did not mean that a decision-maker must possess rebutting evidence before finding that a particular claim had not been made out (see CQG15 v Minister for Immigration (2016) 253 FCR 496; [2016] FCAFC 146 at [61]-[65]) and that appropriate inferences may be drawn from the evidence, including any gaps or deficiencies in the evidence.
The First Respondent submitted that in this case the Authority had identified such a gap or deficiency in the evidence in finding it difficult to understand why only the claimed limited actions would have been taken by the Iranian authorities to locate the Applicant, in circumstances where he was said to have been implicated in the death of a Basij officer, to have failed to comply with a Sepah summons and to have absconded while on bail. It was submitted that the Authority did not have to possess specific evidence about the practices of the authorities in order to find the Applicant’s evidence unsatisfactory in this regard. The First Respondent suggested that as a matter of ordinary experience if a person was sought by the authorities, then it would be expected that endeavours would be made to find such person and that the more serious the reasons for seeking the person, the more motivated pursuers may be expected to be. On this basis it was submitted that if a pursuer did not utilise apparently available means of locating a person, this called into question whether the person had in fact been sought.
In any event, the First Respondent referred to the fact that the Authority had before it various items of country information cited in footnotes to paragraphs 15 to 16 of its decision, including information which indicated that a failure to comply with a summons may result in an arrest warrant being issued, further summonses being served and a trial in absentia occurring, even where a person had left the country. Importantly, information from a Danish Immigration Service report was cited by the Authority in paragraph 16 of its reasons as indicating that in Iran “a person who does not comply with a summons will be searched for” and also that family members may face issues if they helped an accused person to escape. The Authority also referred to the fact that, as set out in the Applicant’s submission to it, the Iranian Criminal Code indicated that there would be an investigation into the absence of an accused. It was pointed out that there was no information before the court to contest the Authority’s summary of the cited country information
The First Respondent submitted that contrary to the Applicant’s contention, the Authority had not conflated the authorities in Iran, but rather had regard to country information which it took to indicate that there would be consequences for not complying with “a summons”, whether from the court or from Sepah.
It was also pointed out that although the Applicant claimed that he was told by the court that he would be summonsed to appear within ten days after he was released on bail, he had not claimed that he or his family had received any such further summons from the court. While he suggested that his family had received telephone calls and that a court soldier had approached his uncle’s property “stating” that had a “court letter”, the Applicant did not claim that any further summons was served or action taken in this regard. The First Respondent pointed to the fact that this was despite country information before the Authority which indicated that a court summons could be served upon a family member in the absence of the accused, and that further summonses, an arrest warrant and a trial in absentia may result from a failure to comply with a summons.
The First Respondent also pointed to the other concerns of the Authority about the limited investigation claimed and the absence of any claim that the Applicant’s family home was searched.
The First Respondent submitted that it could not be said that the Authority’s findings were not reasonably open. It was pointed out that in not being satisfied as to the plausibility of aspects of the Applicant’s story, the Authority had had regard to cited country information which indicated that the Iranian authorities may not act consistently and may not always comply with the law, but that the weighing of this information against other information indicating that there would be repercussions for absconding after the issue of a Sepah summons, while on bail and when implicated in a murder, was a task for the Authority. It was also submitted that the Authority was not obliged to accept that further action was taken of which the Applicant was unaware.
Consideration
This ground concerns the Authority’s approach to the credibility of the Applicant’s claims about the repercussions of the claimed events in Iran. It is not in dispute that, notwithstanding the subjective nature of the assessment required by the Authority and what the Full Court of the Federal Court described in BEH15 at [34] as the “factual nature” of an assessment of credibility, the Authority’s decision (like that of the Administrative Appeals Tribunal) must be made “within the bounds of legal reasonableness”. While ground 1 is expressed in terms of irrationality, in the particulars and in submissions counsel for the Applicant also referred to legal unreasonableness in that it was asserted that the Authority’s decision-making was not founded on probative material and logical grounds. The explanation of relevant principles in DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175; [2018] FCAFC 2 as cited in BEH15 at [34] is in point. As the Full Court stated in DAO16 at [30]:
(1) While findings as to credit are generally matters for the administrative decision maker, this does not mean that such findings as to credit are beyond scrutiny on judicial review: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 (CQG15) at [37]-[38] (the Court). The question of whether a credibility finding is tainted by jurisdictional error is a case specific inquiry, and is not assessed by reference to fixed categories or formulaeARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109 (ARG15) at [83](b)). In each case it is necessary to analyse in detail what the decision-maker has decided: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 (SZRKT) at [77] (Robertson J).
(2) Without derogating from the case specific nature of the inquiry, adverse credibility findings may involve jurisdictional error on recognised grounds such as legal unreasonableness or reaching a finding without a logical, rational or probative basis (ARG15 at [83](d)). In this regard, Crennan and Bell JJ explained in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS) that:
135. … A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
(Emphasis added)
…
(4) Findings or reasoning along the way to reaching a conclusion by the decision-maker that are illogical or irrational may establish jurisdictional error (SZMDS at [132] (Crennan and Bell JJ)). In this regard, with respect to the significance of an illogical or irrational finding as to credit to the administrative decision necessary to establish jurisdictional error, Wigney J explained in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 (in a passage approved in CQG15 at [60]) that:
56. An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny…
(citations omitted)
(5) A high degree of caution must, however, be exercised before finding that adverse findings as to credit expose jurisdictional error in order to ensure that the Court does not embark impermissibly upon merits review: SZMDS at [96]; SZVAP at [14]-[15]. As such, to establish jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality must be demonstrated “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions” (SZRKT at [148]; see also SZMDS at [135] and CQG15 at [60]). Thus, “[e]ven emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality”: CQG15 at [61].
In addition to the remarks in SZMDS at [135] referred to in DAO16, the remarks of Crennan and Bell JJ in SZMDS at [130]-[131] are relevant to the assertion of irrationality. Their Honours stated:
130. In the context of the Tribunal’s decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
131. What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
I have borne in mind that adverse credibility or other findings that involve illogical reasoning or illogical or irrational findings “along the way” to the ultimate conclusion may establish jurisdictional error (see DAO16 at [30], SZMDS at [132] and [136]). I have also had regard to the fact that the impugned findings in paragraphs 14 to 18 of the Authority’s reasons are expressed in terms of implausibility (see The Republic of Nauru v WET040 (No 2) [2018] HCA 60). However, these findings must be seen in the context of the reasons as a whole and in light of the Applicant’s evidence and cited country information.
I note that in so far as the Applicant appeared to take issue with the content or adequacy of cited country information as a basis for findings by the Authority, the information in question is not in evidence.
First, contrary to the Applicant’s contention that the sole reason for the Authority’s ultimate conclusion that his claim about the altercation and subsequent events was inherently implausible and was not accepted was because the authorities had not searched for him following his non-attendance in response to the Sepah summons, this was not the sole reason. In addition, the Authority considered the Applicant’s claim to have received a summons from Sepah in light of country information, including information in his submission to the Authority which referred to summonses in Iran. However it observed that much of that information related to summonses requiring attendance in court, whereas the Applicant’s summons required him to present himself to Sepah intelligence to answer questions. The Authority accepted that there was information suggesting that Sepah could detain the Applicant without formal court orders and that there was some evidence of intelligence officials issuing summonses, including as a precursor to arrest. However, it had regard to the fact that such information referred to handwritten, unofficial looking summonses or verbal summonses from intelligence organisations, which was not the case in relation to the claimed Sepah summons issued to the Applicant. The Authority also took into account the fact that the cited country information about summons issued by intelligence officials did not refer to murder cases. It referred to the law and practice in this respect.
These concerns also formed part of the Authority’s reasons for not accepting the Applicant’s claims about his involvement in an altercation with the Basij or that the claimed subsequent events occurred.
However, as the First Respondent conceded, the most significant concern to which the Authority had regard (“even apart from” the above issues) arose from the lack of repercussions. It is important to note that in this context the Authority had regard not only to the lack of repercussions flowing from the Applicant’s claimed failure to attend in response to the Sepah summons, but also to the absence of claimed repercussions for his departure from Iran while released on bail and while the subject of accusations in relation to the death of a Basij officer. It was consistent with the Applicant’s claims about what occurred in Iran that the Authority did not confine its reasoning to the absence of repercussions from Sepah. Notwithstanding that the Applicant claimed that the event which caused him to flee Iran was receipt of the Sepah summons, it was not illogical for the Authority to have regard to all of the Applicant’s claimed circumstances and the absence of repercussions from any of the Iranian authorities (other than the claimed telephone calls said to be from the Basij).
The central finding with which the Applicant took issue was the Authority’s finding in paragraph 14 of its reasons that it was completely implausible that if the Applicant was (rightly or wrongly) implicated in the death of a Basij officer and then failed to comply with a Sepah summons and also absconded while on bail, the Iranian authorities would take “so little action” to locate him.
In making this finding the Authority acknowledged the Applicant’s claim that following his departure from Iran his family had received a few phone calls to which they had replied that if there was a problem, they were not legally responsible for it. It acknowledged that the Applicant claimed that these were threatening phone calls from the Basij over a number of consecutive days. It also had regard to his claim that the victim’s family approached his home once and that of his uncle a number of times, “accompanied by a court soldier and stating that they had a court letter”. However the Authority explained that for the reasons that followed (that is, at paragraphs 15 to 18), it found it completely implausible that the Iranian authorities would have taken such little action to locate the Applicant.
The Authority then turned to consider the absence of any claimed further summons or communication from the court or from Sepah, as well as the absence of claimed searches or investigation into the Applicant’s whereabouts, other than a few phone calls.
These findings were based on the Applicant’s own evidence about what had occurred after his departure from Iran. Importantly, the Applicant claimed to be aware of the phone calls and visits to his family made after his departure. It has not been shown to be irrational in the sense considered in SZMDS for the Authority to proceed on the basis that it was not satisfied that further action was taken of which the Applicant was unaware, even if another decision-maker might have differed in respect of the conclusion to be drawn from that aspect of the Applicant’s evidence (SZMDS at [131]). There was a logical connection between the evidence and the inferences or conclusions drawn by the Authority in this respect (see SZMDS at [135]).
The Authority considered the plausibility of the Applicant’s claim that while he was told he would receive a summons to appear in court within ten days after his first appearance in court, he did not claim that he or his family ever received such a summons from the court or that Sepah took any action in respect of his non-compliance with its claimed summons.
In that context, the Authority had regard to country information which indicated that a summons could be served on family members in the absence of the accused, as well as to information about summonses and procedures in criminal cases, including the possibility of a trial in absentia. It was not illogical for the Authority to have regard to information about criminal cases (including in the Iranian Criminal Code) given the Applicant’s claims about his appearance in court, his expectation of a court issued summons and the fact he absconded while on bail (as well as after not attending Sepah intelligence). This does not indicate that the Authority conflated Sepah and other Iranian authorities.
While the Authority accepted that written judicial documents were not always issued and that legal processes were irregular and secret, it found it implausible, that is, inherently unlikely having regard to the cited information and the Applicant’s claims that he had been released on bail and implicated in a murder and had not complied with a Sepah summons, that he did not claim to have been issued with a further summons or to have had any further communication from the court or from Sepah following his failure to appear in response to its summons.
In so far as the Applicant appeared to suggest that the Authority was incorrect to state that he claimed there had been no further communication from the court or from Sepah, that is not consistent with the evidence before the court. The Applicant’s evidence was of visits by the family of the dead Basij officer (accompanied by a court soldier on a visit to his uncle’s house, not to his house) and of threatening phone calls from the Basij.
The Authority was clearly of the view, in light of all the matters it referred to, that the Applicant’s version of events was not supported by or consistent with country information about court summonses and procedures and was also inherently unlikely given the events he claimed had occurred before his departure from Iran. The conclusion of implausibility in this context was not a bare assertion. There was a logical basis in the evidence for this aspect of the Authority’s reasoning, even if rational or reasonable minds may differ in relation to the conclusions to be drawn from that evidence (see SZMDS at [131]). Further, the Authority did not err in having regard to country information relating to judicial processes and court summonses, given the Applicant’s claim that he was told he would be summonsed to appear in court. It also considered the absence of any claimed communication from Sepah after the Applicant’s failure to appear in response to the Sepah summons.
Moreover, in reaching its ultimate finding of implausibility, the Authority did not confine its consideration to the absence of any claimed further summons or communication with the Applicant from the court or Sepah. It also had regard (at paragraph 16) to the fact that the Applicant did not claim that there were any searches or investigations (by the authorities) into his whereabouts, other than a few phone calls. In that context it referred to the information from a cited Danish Immigration Service report which it stated “indicates that a person who does not comply with a summons will be searched for”, as well to indications in the Iranian Criminal Code that there would be an investigation into the absence of an accused.
Contrary to the Applicant’s submission, I am not persuaded that the reference to the Danish report was an offhand remark or throwaway line. The Danish Report is not in evidence. It has not been established that there was “nothing” in the country information cited by the Authority about Sepah searches for people who did not appear in response to a summons or the degree to which the authorities would be expected to carry out a search or investigation into the whereabouts of a person who did not comply with a summons. The cited information was said to indicate “that a person who does not comply with a summons will be searched for”. It was relied on after the Authority had indicated a clear awareness of the distinction between a court summons and a Sepah summons, and also of the fact the Applicant claimed both to have received a Sepah summons and to expect that a court summons would be issued.
This information, as well as the information about consequences for family members involved in an accused’s escape, the Applicant’s claimed knowledge of the visits and phone calls after his departure, and the probabilities of ordinary human experience (see WET040 (No 2) at [35])) provided a rational basis for the Authority’s conclusion (at paragraph 16) that it was:
… completely implausible that there would have been no search of the applicant’s house or investigation into his whereabouts or his family’s role in his absconding in the period following his departure or subsequently, particularly considering the nature of the crime of which he was accused.
The Applicant also took issue with the Authority’s finding (at paragraph 18) that it was completely implausible that:
… following [the Applicant’s] failure to comply with a Sepah summons, Sepah, the police, the court or other authorities would have taken no action to locate the applicant other than to telephone his family on a number of occasions and accompany the victim’s family to his uncle’s house with a court letter. …
The Authority did not conflate the Iranian authorities. As indicated, in addition to the Sepah claim it recognised the seriousness of the claims that the Applicant was implicated in the murder of a Basij officer and was arrested on the spot in the presence of other Basij officers. It proceeded on the basis of accepting that it was possible that a person in such circumstances could be granted bail but, clearly having regard to the nature and seriousness of implication in murder, and absconding while on bail as well as the subsequent Sepah summons, found it inherently unlikely that the various Iranian authorities would not have taken further action to locate the Applicant, as it had also discussed at paragraph 16 of its reasons. Such approach was not inconsistent with the Authority’s acceptance that legal processes in Iran were irregular and secret or that the rule of law in Iran was weak.
It is notable that while the Authority accepted that the Applicant had been consistent in his claims about the Basij incidence and subsequent events and that country information supported some aspects of his claims, it also found that it had “significant concerns over the plausibility of other, significant elements of the claims when considered in the context of country information” (emphasis added). Such information constituted probative material in relation to the Authority’s consideration of aspects of the Applicant’s claims. While the Authority expressed its findings in terms of implausibility, these were not simply observations or passing comments on the evidence (cf. W148/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 679 at [67]).
This is not a case in which the Authority did no more than simply assert that some part of the Applicant’s account of past events was implausible. The Authority’s findings of implausibility were not bare assertions, mere speculation or matters of conjecture, but were based on cited country information as well as logical deduction based on the view that aspects of the Applicant’s version of events were inherently unlikely in the sense of not according with the probabilities of ordinary human experience (see WET040 (No 2) at [35]).
The individual findings of implausibility should not be read in isolation. There was a rational basis for the Authority’s findings that aspects of the Applicant’s claims about repercussions in Iran were implausible having regard to his evidence, the nature of the events he claimed he had experienced and cited country information.
Even if another decision-maker may have taken a different approach, the approach of the Authority has not been shown to be outside the bounds of an approach that a rational or reasonable decision-maker might take. Extreme illogicality has not been demonstrated.
It has not been established that the Authority’s conclusion was based on an arbitrary and irrational assumption about the operation of the Iranian authorities or that its decision-making was not founded on probative material and logical grounds such as to constitute jurisdictional error. Ground 1 is not made out.
Ground 2
Ground 2 is as follows:
2. The IAA erred by failing to give a proper, genuine and realistic consideration to the merits of the case.
Particulars
a. The Applicant gave evidence that he came from a loving and wealthy family in Iran; was 5 months away from graduating from his industrial engineering degree; was training to be an elite road cyclist for the Iranian national team; and was an accomplished violinist, and submitted that in the circumstances he would not have fled Iran if his claims were not true.
b. At D[17], the IAA implied that it accepted the aforementioned evidence, but failed to engage with it nor make any findings about the evidence in relation to the Applicant’s claim.
c. It was insufficient for the IAA simply to advert to the evidence without any analysis about its impact on the decision.
d. In the circumstances, the IAA filed to complete its task to review the decision of the delegate.
The Applicant submitted that consideration of a claim required more than a mere noting or acknowledgement. It was contended that the decision-maker must bring to bear his or her mind to the evidence, engage in a proper analysis of the evidence and its impact on the decision and assess why such evidence should either be accepted or not accepted.
The Applicant pointed out that he had claimed to the Authority that he had no motive to fabricate his claim to fear harm, as he had been living a privileged life in Iran prior to the Basij officer incident. The submission to the Authority was said to amount to a contention that the Applicant was a distinguished talent with strong reasons to remain in Iran, had it not been for the incident. The Applicant referred to various aspects of his submission to the Authority, including matters he specifically put to the Authority as follows:
… I would ask the IAA to consider why I would wish to leave Iran? As submitted in my TPV application, I am the son of very wealthy parents; they are in fact Iranian billionaires, and I lived in our family home; a palatial apartment in the most prestigious and expensive residential complex in [named] city. My brother is a pilot. My family are very close and loving, and I have a large and a connected extended family. My family are well-known, well-connected and very respected. I grew up alongside my father in the family’s [specified] business, and was within 5 months of graduating from my four year university degree as an Industrial Engineer. I was an elite road cyclist who was being groomed to ride in the Iranian National Team. I received eight-years private tutelage under a master violinist, and played and socialised with the most famous Iranian musicians. My cousin [named] and his wife [named] also lived a very privileged life. Why would we walk into Afghanistan, hide in safe houses, fly to Indonesia, hide in more safe houses, then get on a boat with a 50:50 chance of dying? Although Iran is a dangerous country for its residents, we learn to do our best to avoid coming under the notice of authorities, and until this incident I had successfully done so, having never been in trouble with the Iranian authorities in my life.
The Applicant pointed out that he had provided supporting material to the Department to corroborate his claimed talents. The Authority did not dispute the material about the life that he had lived in Iran and accepted, having regard to the references accompanying the application, that he was “talented and accomplished”.
While the Authority stated that it had “considered his submissions regarding his circumstances in Iran”, it had ultimately found that “these matters and the existence of the document purporting to be a summons from Sepah do not outweigh my concerns as to the inherent implausibility of the applicant’s claims”.
The Applicant submitted that it was impossible to infer from this “bland, short and generalised statement” that the Authority gave proper, genuine and realistic consideration to his evidence about his situation in Iran. It was claimed that the Authority’s description of the material in support of the Applicant’s claim in this respect had failed to acknowledge the gravity of what was at stake for him and that this had led to a failure by the Authority to address the critical claim of why the Applicant would want to leave Iran had it not been for the Basij incident.
It was pointed out that in SZTEX v Minister for Immigration and Border Protection [2014] FCA 1269 Flick J had observed at [26]:
… In considering whether or not a claim or a part of a claim has been taken into account and resolved, it is “the reality, and not the appearances, which matters”: cf Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 595 per Kirby J. A requirement, whether imposed by common law or by statute, to consider a claim requires a decision-maker to engage in “an active intellectual process directed at that representation or submission”: Tickner v Chapman (1995) 57 FCR 451 at 462 per Black CJ. In NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134; (2005) 147 FCR 51, both Madgwick and Hill JJ endorsed the formulation of Black CJ that “an active intellectual process” was required: at [46] per Hill J and [212] per Madgwick J.
The Applicant also argued that for evidence to be properly considered, a decision-maker must give more than mere “lip service” to it and that, as found in NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51; [2005] FCAFC 134 at [212] per Madgwick J: “A decision-maker cannot be said to ‘have regard’ to all of the information to hand, when he or she is under a statutory obligation to do so, without at least really and genuinely giving it consideration”.
Reference was made to the discussion in Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352; [2017] FCAFC 107 at [46]-[47] of the concept of “proper, genuine and realistic consideration”. In particular, the court stated at [47]:
Thus the central focus in the two proceedings here is on the question whether the Minister engaged in an active intellectual process in considering the merits of the two cases before him. Whether or not there was such an active intellectual process requires the Court to conduct an evaluative judgment, taking into account the available evidence and reasonable inferences, as to all the relevant facts and circumstances of each case. …
It was contended that the approach in Carrascalao had been applied by Griffiths J in Malek Fadh Islamic School Ltd v Minister for Education and Training (No 2) [2017] FCA 1377 at [47]. The Applicant also relied on remarks of Flick J in Buadromo v Minister for Immigration and Border Protection [2017] FCA 1592 at [53]–[54] as to why it was insufficient to simply advert to a particular issue without any analysis. The Applicant did not refer to the fact that the Full Court of the Federal Court allowed an appeal in Minister for Home Affairs v Buadromo (2018) 267 FCR 320; [2018] FCAFC 151.
The Applicant pointed out that in MZYPW v Minister for Immigration and Citizenship [2012] FCAFC 99 the Full Court of the Federal Court had determined that a particular claim had not been considered or resolved, despite the fact that the decision-maker’s reasons had referred to the claim. Flick and Jagot JJ held (at [19]) that the decision-maker’s reference to the claim in question was made in the context of recording a submission, but that “[h]ow that submission was resolved [was] left unstated” and stated (at [20]) that the issues relevant to the assessment of the claim had not been taken into account by the decision-maker. Yates J (at [38]) had concluded that although the decision-maker’s reasons stated that the submission was “considered”, it had in fact been “simply side-stepped”.
Further, the Applicant pointed out that Carrascalao had been cited with approval in Minister for Home Affairs v Omar [2019] FCAFC 188 at [35]-[36]. It was observed that in summarising the key points that emerged from Carrascalao, the Full Court in Omar had endorsed the reference in Carrascalao to Tickner v Chapman (1995) 57 FCR 451; [1995] FCA 1726 in relation to a decision-maker’s obligation to “consider” particular matters.
The First Respondent submitted that, as recognised in Minister for Immigration and Border Protection v Lium [2019] FCA 1850 at [38] and Carrascalao at [32], there is a need to exercise caution in relation to the use of the expression “proper, genuine and realistic consideration” because there is a danger that it may draw the court into impermissible merits review. It was acknowledged that the Authority must demonstrate an active intellectual process in relation to an application, but submitted that this did not require it to refer to every piece of evidence or contention before it or to provide lengthy or detailed reasons in relation to the matters it dealt with (Lium at [39]).
It was contended that in this case the Authority plainly engaged with the information put forward by the Applicant about the life he led in Iran and the circumstances of his departure by considering its nature, effect and probative value and then weighing it against other considerations which it found persuasive for reasons that it gave (at paragraphs 6, 17 and 18 of the Authority’s decision). The First Respondent submitted that it was apparent from the Authority’s reasoning that although it gave some weight to the Applicant’s favourable circumstances in Iran, it afforded greater weight to the credibility concerns it identified in relation to his claims. It was pointed out that the weight to be given to evidence was generally a matter for the Authority.
Consideration
The First Respondent did not dispute that the Authority was obliged to give “proper, genuine and realistic consideration” to the merits of the Applicant’s case and demonstrate an active, intellectual process in relation to the submission and the Applicant’s claims about his circumstances in Iran. Nonetheless, as the First Respondent pointed out, the Federal Court has recognised the “danger” that the use of such an expression could, if taken out of context, encourage a “slide” into impermissible merits review (see Carrascalao at [31] and Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164; [2010] HCA 48 at [30]). Further, a finding that a decision-maker such as the Authority has not engaged in an active intellectual process in relation to material or claims will not be lightly made. The Applicant bears the onus of proof (Carrascalao at [35] and [48] and Lium at [38]). The Authority is not obliged to refer to every piece of evidence and every contention (Carrascalao at [45] and Lium at [39]).
While merely acknowledging that a claim has been made will not amount to meaningful consideration of that claim (see MZYPW and Omar at [39]), in this case the Authority did not merely acknowledge the Applicant’s claims about his situation in Iran. Reading the decision fairly and as a whole in the sense discussed in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6, it is clear that the Authority engaged in an active intellectual process in considering the claims made to it in the Applicant’s submission.
First, the Authority considered the nature and effect of the information in question. At paragraph 6 it summarised the Applicant’s claims as including the claim that:
The applicant had a good life in Iran. At the time of his departure on 7 August 2012 he was close to graduating from university and was playing sport at a professional level. His family is wealthy and well-known, he was an elite road cyclist being groomed to ride in the Iranian national team and he played violin and socialised with the most famous Iranian musicians. …
It did not merely advert to this claim (cf. MZYPW). It is clear from the Authority’s reasons, in particular paragraph 17 (set out at [17] above), that the Authority understood and considered the effect of this material, that is, that it amounted to a claim that there was an incongruity between, on the one hand, the Applicant’s personal circumstances in Iran and, on the other hand, the fact and timing of his departure and the steps he took to reach Australia.
The Authority engaged with this information. It accepted, having regard to the references which accompanied the visa application, that the Applicant was talented and accomplished. It recognised that the Applicant’s claims about his good life in Iran (with other matters it described) weighed in favour of accepting his credibility in relation to the basis on which he claimed to fear harm in Iran. It is implicit in this reasoning that the Authority proceeded on the basis of accepting that the Applicant’s personal and family circumstances in Iran were as he submitted.
This is not a case in which a decision-maker failed to engage in an active intellectual process in relation to accepted matters. It is clear from the Authority’s earlier reference to the Applicant’s claimed good life in Iran and its reference to the submitted incongruity between his circumstances in Iran and his departure from Iran that the Authority was addressing the submission that it should consider why the Applicant would wish to leave Iran, if not for the claimed incident.
In addressing that submission in the context of considering the Applicant’s credibility, the Authority weighed the Applicant’s personal circumstances against other considerations to which it gave more weight. It found at paragraph 18 (set out at [17] above) that the favourable matters did not outweigh its concerns as to the “inherent implausibility of the applicant’s claims”. This was not a finding that the Applicant’s claims about his personal and family circumstances in Iran were inherently implausible. Rather, for reasons which it explained, the Authority gave greater weight to the credibility concerns it identified in relation to aspects of the Applicant’s claims about events in Iran than it did to those matters (including the Applicant’s good life in Iran) that supported his credibility.
While another decision-maker may have given more weight to the incongruity between the Applicant’s life in Iran and the circumstances of his departure, that is not in itself indicative of jurisdictional error. The weight to be given to evidence is generally a matter for the Authority (see SZJSS at [33]). The Authority engaged with the Applicant’s submission and the material in question in weighing it against other considerations. It gave reasons for finding that its concerns about the inherent implausibility of the Applicant’s claims about the actions of the Iranian authorities were more persuasive having regard to the seriousness of the events said to have occurred and the limited repercussions. These matters led it not to be satisfied that any of the claimed events occurred or that the Applicant was wanted by the Iranian authorities. It has not been established that the Authority failed to give proper, genuine and realistic consideration to the evidence in relation to the Applicant’s claim or to the merits of the Applicant’s case.
Ground 2 is not made out.
As jurisdictional error has not been established, the application must be dismissed.
I certify that the preceding one hundred (100) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 11 September 2020
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