Dbo19 v Minister for Immigration - [2021] FCCA 795

FEDERAL CIRCUIT COURT OF AUSTRALIA

DBO19 v MINISTER FOR IMMIGRATION & ANOR

[2021] FCCA 795

Catchwords:
MIGRATION – Temporary Protection (subclass 785) visa – judicial review of decision of decision not to grant Temporary Protection visa – whether decision affected by jurisdictional error for misapplication of section 473DD in respect of certain ‘new information’ – whether decision affected by jurisdictional error for failure to consider, or constructive failure to consider certain claims by the applicant – consideration of section 473DD of the Migration Act 1958 (Cth) - application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.473DD, 5J.

Cases cited:

Appellant s395/2002 v Minister for Immigration and Multicultural Affairs

(2003) 216 CLR 473

AUS17 v Minister for Immigration and Border Protection (2020) 94 ALJR 1007;

[2020] HCA 37

BVDv MIBP (2019) ALJR 1091

Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR

352

CSL15 v Federal Circuit Court of Australia [2017] FCA 577

Hossain v Minister for Immigration and Border Protection (2018) 264 CLR

123

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No

2) [2004] FCAFC 263

Re Minister for Immigration and Multicultural Affairs; Ex parte S20/2002

(2003) 77 ALJR 1165

Tickner v Chapman (1995) 57 FCR 451

Applicant:

DBO19

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

MLG 2596 of 2019

Judgment of:

Judge Mercuri

Hearing date:

15 July 2020

Date of Last Submission:

15 July 2020

Delivered at:

Melbourne

Delivered on:

22 April 2021

REPRESENTATION

Counsel for the applicant:

Mr Maloney

Solicitors for the applicant:

Victoria Legal Aid

Counsel for the respondents:

Mr Murano

Solicitors for the respondents:

Clayton Utz

ORDERS

The applicant’s application filed 12 August 2019 and amended application filed 23 June 2020 be dismissed.
The applicant pay the first respondent’s costs in a sum to be fixed, if not agreed.
The parties have liberty to apply to have the costs issue listed if no agreement is reached.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2596 of 2019

DBO19

Applicant

and

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for review of a decision of the Immigration Assessment Authority (“IAA”) to affirm a decision of the delegate of the Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs (“the Minister”) to refuse the applicant a Temporary Protection (subclass 785) visa (“protection visa”).
The applicant raises 10 grounds of judicial review.

Background

The factual background in this matter is not largely in dispute. This summary is taken principally from the applicant’s written submissions filed 23 June 2020.
The applicant was born on 28 June 1984 and is a citizen of Iran.[1] He applied for a Temporary Protection (subclass 785) visa on 7 July 2017.[2] The applicant’s application was refused by the delegate on 21 May 2019[3] and the delegate’s decision was affirmed by the IAA on 8 July 2019.[4]
[1] Court book filed 30 October 2019 page 34 (“court book”).
[2] Court book page 104.
[3] Court book page 153.
[4] Court book page 245.
The applicant set out his claims in a statutory declaration which accompanied his visa application.[5] In his initial statutory declaration, the applicant stated that:
[5] Court book page 75.
a)he was of Turkish ethnicity and no faith;
b)he fled his country in 2013 because he had ‘no religion and (he) is further persecution from the Iranian authorities for this reason’;
c)both his parents and his wife’s family are practising Shia Muslims and disapproving of his views about religion;
d)his brother is also not religious and was arrested, put in jail and threatened execution;
e)he was arrested in 2007, his life was threatened due to the fact that he did not follow Islamic faith, and he remained in prison for one year;
f)in 2006 after drinking alcohol at home he was stopped while driving his motorcycle, taken to the mosque and then the police station where he was detained for three days and received sentence of 80 lashes;
g)in 2009 he was arrested for participating in a demonstration during the Green Revolution and was detained for two days;
h)in about 2010, he and his wife were stopped at a Basij checkpoint and questioned as to why was his wife’s hair was showing and why she was wearing makeup. In response, the applicant told them that this was not their business and they started beating him;
i)the beating resulted in damage to the tendon in his hand;
j)he obtained his passport to the Iran by using a fake military exemption card and therefore he is punishment for leaving Iran by illegal means;
k)his personal details were released as a result of a departmental breach in January 2014 and he feared that the Iran authorities would have access to those details and that he would be mistreated if he returned as a failed asylum seeker;
l)the applicant further claims that the Iran authorities would not protect him because he fears harm from those very authorities;
m)the applicant further states that he would not be able to live elsewhere in Iran because of the authorities would be able to find him wherever he was living.
At paragraph [11] of the statutory declaration the applicant said:
I decided to leave you because I could not live freely as a person who did not follow Islam. I was regularly harassed by the Basij for going against Islamic Codes such as eating during Ramadan in public and drinking alcohol. I want to be able to live free from harm as a person with no religion.
And at paragraph [13] the applicant said:
I cannot return to Iran. If I am forced to return, I will be jailed again for not following Islam. The detained and interrogated me at the airport. I already have a criminal record for not following Islam so be aware of my offences.
By letter dated 15 March 2019, the applicant was requested to attend an interview scheduled for 21 March 2019 to provide further information about this application.[6] Attached to the request for interview was information sheet about the protection visa interview.[7]
[6] Court book pages 120 to 121.
[7] Court book pages 122 to 126.
Relevantly, the information sheet contains the following statements:
The interview is an opportunity for you to provide the Department with all the information you have to support your claims for protection and by the written claims that were made in your Protection visa application.
…
It is important that you present all claims for protection during your Protection visa interview. If a refusal decision is made on Visa application and your application is reviewed, you may not be able to raised new claims to be considered at that review.
…
It is your responsibility to provide the particulars of your claims for protection and to provide sufficient evidence to establish those claims at the interview before a decision is made. It is important to explain clearly interview while receiving protection in Australia and details of your protection claims.[8]
[8] Court book pages 122 to 126.
At the interview with the delegate, the applicant advanced a further claim that he had converted to Christianity in Australia and that in addition to the specific interactions with authorities in 2006, 2007, 2009 and 2010 he had been questioned and detained numerous other times.[9]
[9] Court book pages 160 to 162; see also applicant’s written submissions filed 23 June 2020 at page 4.
On 28 March 2019 the applicant’s representative provided further material including a certificate of baptism in support of the applicant’s protection claims.[10] On 23 April 2019, the applicant provided a letter of reference from a friend by email.[11]
[10]Court book pages 136 to 138.
[11] Court book pages 139 to 142.
On 21 May 2019 a delegate of the first respondent refused the applicant’s application for a protection visa.[12]
[12] Court book pages 153 to 177.
The delegate’s decision was referred to the IAA for review on 24 May 2019.[13]
[13] Court book page 179.
On 13 June 2019, the applicant via the Refugee & Immigration Legal Centre (“Refugee Legal”) provided:
a)a further statement from the applicant;
b)legal submissions; and
c)explanation about ‘new information’.[14]
[14] Court book pages 206 to 222.
Following correspondence from the IAA, the applicant resubmitted this material so as to comply with the relevant practice direction.[15]
[15] Court book pages 224 to 225; see also 233 to 240.
The IAA affirmed the delegate’s decision to refuse the applicant’s application for a protection visa on 8 July 2019.[16]
[16] Court book pages 245 to 260.

Grounds of review

The applicant indicated that the grounds of review could be grouped as follows:
a)Grounds 2 to 7 arise in the context of the IAA’s application of section 473DD of the Migration Act 1958 (Cth) (“the Act”);
b)Grounds 1, 8, 9 and 10 are put on the basis that they amount to a failure by the IAA to consider the applicant’s claims.

AUS17 v Minister for Immigration and Border Protection

Before turning to deal with the grounds of review, I note that after I had reserved judgment in this matter, the High Court of Australia handed down its decision in AUS17 v Minister for Immigration and Border Protection (2020) 94 ALJR 1007 (“AUS17”) in which it considered the scope and application of section 473DD. The parties sought and were granted leave to file further submissions in relation to AUS17 and its relevance to this matter.
The first respondent conceded that AUS17 clarified the operation of section 473DD and that consequently, the arguments advanced at the hearing in relation to that provision, could no longer be maintained.[17] However, the first respondent went on to submit that nothing in AUS17 disturbed the ‘well-established proposition that, in order for an error to be jurisdictional, it must be material. An error is immaterial if,… the error had not been made, there (was) no realistic possibility that the Authority could have made a different decision on the review.’[18]
[17] First respondent’s supplementary submissions filed 16 December 2020 at [3].
[18] First respondent’s supplementary submissions filed 16 December 2020 at [4].
The first respondent further submits that when one considers the materiality of any errors arising from the IAA’s application of section 473DD, there is no jurisdictional error. The applicant takes issue with this submission.[19]
[19] Applicant’s supplementary submissions filed 23 December 2020.
This argument is relevant to grounds 2, 3, 4 and 6.

What then did AUS17 decide?

After considering the history of section 473DD and in particular, the insertion of section 473DD(b)(ii), the plurality (Kiefel CJ, Gageler, Keane and Gordon JJ) noted:
[9]… Section 473DD(b)(ii) to that extent modifies the policy manifest in s 5AAA, s 473DB and s 473DD(b)(i) of casting responsibility on the applicant for a protection visa to provide evidence to establish his or her claims to be a person in respect of whom Australia has protection obligations at the time of making the application. Section 473DD(b)(ii) allows for a very limited second opportunity to provide evidence that might previously have been provided.[20]
[20] AUS17 v Minister for Immigration and Border Protection [2020] HCA 37 [9].
The plurality went on to say:
[10]Section 473DD would be at war with itself, and the purpose of s473DD(b)(ii) would be thwarted, if the circumstance that there was new information from a referred applicant meeting the description in either s 473DD(b)(i) or s473DD(b)(ii) were able to be ignored by the Authority in assessing the existence of exceptional circumstances justifying consideration of that new information in order to meet the criterion specified in s 473DD(a).[21]
[11]Logic and policy therefore demand that the Authority assess such new information as it might obtain from the referred applicant first against the criteria specified in both s 473DD(b)(i) and s473DD(b)(ii) and only then against the criterion specified in s473DD(a). … If either the criterion specified in s473DD(b)(i) or the criterion specified in s473DD(b)(ii) is met, that is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a). If both the criterion specified in s473DD(b)(i) and …. In s473DD(b)(ii) are met, that too is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s473DD(a) and which must heighten the prospect of that criterion being met.[22]
[12] … the Authority does not perform the procedural duty imposed on it by s 473DD in its conduct of a review if it determines in the purported application of the criterion in s473DD(a) that exceptional circumstances justifying consideration of new information obtained from the referred applicant do not exist without first assessing that information against the criteria specified in both s473DD(b)(i) and s473DD(b)(ii) and then taking the outcome of that assessment into account in its assessment against the criterion specified in s 473DD(a). The nature of the non-performance of the procedural duty in such a case is not inaccurately characterised as a failure to take account of a mandatory relevant consideration in the purported application of the criterion in s473DD(a).[23]
[21] AUS17 v Minister for Immigration and Border Protection [2020] HCA 37 [10].
[22] AUS17 v Minister for Immigration and Border Protection [2020] HCA 37 [11].
[23] AUS17 v Minister for Immigration and Border Protection [2020] HCA 37 [12].
In this case, grounds 2, 3, 4 and 6 challenge the IAA’s findings on the basis that the IAA failed to consider whether the new information referred to in each of those grounds met the requirements of section 473DD(b) before determining that section 473DD(a) was not satisfied.
The first respondent effectively concedes this point.
However, as noted above, the first respondent submitted that whilst accepting the principles in AUS17, an error of this kind will only amount to a jurisdictional error if it is a material error, in the sense that if the error had not been made there was a realistic possibility that the IAA could have made a different decision on the review.
In addition, it was further submitted by the first respondent that, whilst AUS17 goes to the reasoning process that the IAA must undertake, it is a different and distinct question for the court to determine as to how the IAA actually reasons in a particular set of circumstances. In considering this distinct question, the court must bear in mind that:
a)the IAA is not obliged to give comprehensive reasons for its assessment under section 437DD. In BVDv MIBP (2019) ALJR 1091the High Court said at [16], ‘… the Authority in giving reasons for the ultimate decision to affirm or remit, is not required to give reasons for the exercise or non-exercise of a procedural power such as those conferred upon it by section 473DC(1) or section 473GB(3).’
b)even where a statement of reasons is required, it is important to note that although decision-makers generally express their reasons sequentially, the fact that they do not in a particular case, does not mean that they have failed to consider the evidence as a whole – Re Minister for Immigration and Multicultural Affairs; Ex parte S20/2002 (2003) 77 ALJR 1165 at [14] per Gleeson CJ (“S2/2020”).
It was submitted that Gleeson CJ’s comments in S20/2002 would apply with even greater force here in circumstances where the IAA is not required to provide comprehensive reasoning or reasoning in a particular format or structure.[24]
[24] First respondent’s supplementary submissions filed 16 December 2020 at [6].
The IAA’s reasoning in relation to the section 473DD point is relevantly as follows:[25]
[25] Court book pages 245 to 264.
a)at paragraphs [3] and [4] of the decision record, the IAA sets out the additional information provided by the applicant;
b)at paragraph [5], the IAA sets out the applicant’s submissions as to the exceptional circumstances which warrant the new information being considered and relevantly says:
… These broadly comprise his lack of English language skills and familiarity with Australian migration law, detention and incarceration which also made it difficult for him to obtain legal assistance, the seriousness of his claims, the prolonged processing period, the IAA’s limited form of review, the applicant’s lack of representation at the primary stage and lack of ongoing immigration assistance and the fact that no legal submissions or country information in support of his claims were provided to the Department. It is also submitted that the information in the statutory declaration is credible as it is in a statement signed by the applicant and largely consistent with his claims before the Department and. (sic) The applicant submits the information could not have been provided to the delegate before her decision was made and may have affected consideration of the applicant’s claims before the Department because it clarifies concerns raised in the delegate’s decision and may make a material difference to the outcome of the IAA’s decision. It is also submitted that the applicant be given an opportunity to respond should the IAA determine the requirements under s 473DD are not satisfied in relation to any new information.[26]
[26] Court book page 247 at [5].
c)at paragraph [6] the IAA addresses each of these submissions and concludes that it did not consider it necessary for him to be provided with a further hearing;
d)at [7] and [8] the IAA deals with the applicant’s reference to various publications and concludes that whilst this is new information, it does not meet the requirements of section 473DD on the basis that it does not satisfy the matters in either (b) or (a);
e)at [9] the IAA deals with new information provided by the applicant in relation to his Turkish ethnicity and his claim to have obtained a fake military exemption card in Iran. The IAA relevantly said:
… The applicant now provides new information in relation to this. He will be harmed because of his Turkish ethnicity. He will be subjected to a large monetary penalty and jailed and forced to practise Islam when completing his national service. The applicant also briefly mentioned that two people returning from Armenia were arrested at the airport and imprisoned on charges of Christianity. Other than stating he was of Turkish ethnicity the applicant did not mention any claimed incidents of harm because he was Turkish or detail any fears of harm specifically because of his ethnicity. The new information is also brief and unsupported. I am not satisfied exceptional circumstances exist to justify its consideration.[27]
[27] Court book page 248 at [9].
f)At [10] the IAA deals with new information provided by the applicant in relation to his wife’s mental health, his claimed 2007 detention, his wife’s attempted suicides and that he had been warned many times by the Islamic Revolutionary Guard Corps (“IRG”) after his release in 2007. In this context, the IAA said:
This is new information. In the PV interview the applicant’s claimed detention in 2007 was squarely at issue and I am not satisfied the information could not have been provided to the delegate before her decision was made. The new information is brief. It is also not apparent to me how these details are material to the applicant’s central claims for protection. I am not satisfied exceptional circumstances exist to justify consideration of the information.[28]
g)At paragraph [11] the IAA deals with the new information relating to the applicant’s claimed conversion to Christianity and concludes that the IAA ought consider this new information. In this regard the IAA concluded that:
The information provided is very detailed and addresses gaps identified by the delegate in the PV interview and in her decision and relates to the applicant’s central claims. While I have some issues with the information, satisfied exceptional circumstances exist to justify its consideration.[29]
h)At paragraph [12] the IAA considers the new information provided by the applicant regarding his alcohol and drug use. The IAA concluded that as the information was ‘somewhat detailed’ and concluded that exceptional circumstances exist to justify consideration.
[28] Court book page 248 at [10].
[29] Court book page 248 at [11].

Grounds 2, 3, 4 and 6

Grounds 2, 3, 4 and 6 rely upon the IAA’s findings at paragraphs [9] and [10].
The question therefore that arises in considering grounds 2, 3, 4 and 6 is:
a)What did the IAA decide in [9] and [10] of the decision record?; and
b)If there is an error in relation to its application of section 473DD, does it rise to the level of materiality to support a finding of jurisdictional error?
On the latter point, in Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123, Kiefel CJ and Gageler and Keane JJ said:
[29]That a decision-maker ‘must proceed by reference to correct legal principles, correctly applied’ is an ordinarily (although not universally) implied condition of a statutory conferral of decision-making authority. Ordinarily, a statute which impliedly requires that condition or another condition to be observed in the course of a decision-making process is not to be interpreted as denying legal force and effect to every decision that might be made in breach of the condition. The statute is ordinarily to be interpreted as incorporating a threshold of materiality in the event of non-compliance.
[30]Whilst a statute on its proper construction might set a higher or lower threshold of materiality, the threshold of materiality would not ordinarily be met in the event of a failure to comply with a condition if complying with the condition could have made no difference to the decision that was made in the circumstances in which that decision was made …
[31]Thus, as it was put in Wei v Minister for Immigration and Border Protection, “jurisdictional error, in the sense relevant to the availability of relief under s 75(v) of the Constitution in the light of s 474 of the Migration Act, consists of a material breach of an express or implied condition of the valid exercise of a decision-making power conferred by that Act.’ Ordinarily, as here, breach of a condition cannot be material unless compliance with the condition could have resulted in the making of a different decision.
It is clear that in [9] of the decision record, the IAA did not expressly refer to any assessment of the new information in relation to the applicant’s Turkish ethnicity or his fake military exemption against the requirements of section 473DD(b). It did consider section 473DD(a). The only comments about this additional information was:
a)the applicant had not expressly detailed any claimed incidents of harm or fears of harm specifically relating to his ethnicity; and
b)the information was ‘brief and unsupported’.[30]
[30] Court book page 248 at [9].
However, when read in context, these observations go to the question of whether it may have affected the consideration of the applicant’s claims. Moreover, in circumstances where no assertion is made by the applicant that any information about the fact that the applicant was Turkish and faced fear of harm on that basis, this information could not have been provided to the delegate prior to their determination.
In those circumstances, the failure by the IAA to consider whether this was ‘credible personal information which was not previously known’ could not have made a material difference to the outcome of the review.
Ground 3 relies upon the way in which the IAA dealt with the further information in relation to the applicant’s fake military exemption card. It is submitted for the first respondent that the IAA effectively dealt with section 473DD(b)(ii) insofar as it was not satisfied that the information may have affected the consideration of the applicant’s claims.[31] Moreover, it was submitted there was no basis in the material before the IAA on which the IAA could have been satisfied that the new material could not have been provided to the delegate.[32] To the extent that the applicant submitted the further information in response to the delegate’s decision, there is some force to the first respondent’s submission that this alone does not fall within the concept of information which ‘could not have been’ provided to the delegate.[33]
[31] First respondent’s supplementary submissions filed 23 December 2020 at [9].
[32] First respondent’s supplementary submissions filed 23 December 2020 at [10].
[33] First respondent’s supplementary submissions filed 23 December 2020 at [10] and [11].
The Minister submits that the IAA’s findings at paragraph [9] of the decision record must be read together with its reasons at paragraph [6], where the IAA considered the applicant’s explanation as to why the new information could not have been provided earlier.[34] I agree with this submission. Therefore, any error in the IAA’s consideration of section 473DD in relation to ground 3 is also not a material error so as to give rise to a jurisdictional error.
[34] First respondent’s supplementary submissions filed 23 December 2020 at [11].
Similarly, ground 4 relates to the IAA’s application of section 473DD to the applicant’s claims arising from his wife’s mental health and history of suicide which is addressed at [10] of the IAA’s decision record.[35] It is asserted that the IAA failed to properly consider and apply section 473DD in relation to that ‘new information’ in relation to the applicant’s wife’s mental health issues.[36] It is clear from a fair reading of the IAA’s reasons that at [10], the IAA was considering the ‘new information’ about the wife’s mental health issues and his claimed 2007 detention. Importantly, the IAA accepted that there was new information in relation to these two issues but stated that it was ‘minor’ and ‘brief’ and importantly, it was not clear to the IAA how this additional information was material to the applicant’s central claims for protection.
[35] Court book page 248 at [10].
[36] Amended initiating application filed 23 June 2020.
In these circumstances even if the IAA failed to comply with the requirements to consider both section 473DD(a) and (b), I am not satisfied that had the IAA not made such an error it could reasonably have led the IAA to a different conclusion, such that the error could be characterised as being material.
A similar analysis applies to ground 6.
For each of these reasons, I am not satisfied that grounds 2, 3, 4 or 6 have been made out.
In coming to this view, I have considered the applicant’s submissions in reply filed 23 December 2020. In particular, it is submitted that to accept the ‘Minister’s approach is to invite this court to evaluate how s473DD may have been applied given the factual circumstances of this case. That course is impermissible; as the Minister himself has emphasised, the application of s473DD to the facts in a given case is a task for the Authority.’[37]
[37] Applicant’s supplementary submissions filed 23 December 2020 at [3].
I do not accept those submissions. It is appropriate in considering whether an error amounts to a jurisdictional error to consider the materiality of that error. That is, did the error deny the applicant the possibility of a successful outcome? For the reasons stated, I find that notwithstanding any error in the application of section 473DD, the applicant was not denied the possibility of a successful outcome.
I now turn to the remaining grounds of review.

Ground 1

It was submitted that the IAA’s consideration of the applicant’s Turkish ethnicity claim and the IAA’s assessment of this aspect of his claim on the basis that it constituted ‘new information’ was itself an error.[38] It is submitted for the applicant that he had mentioned his Turkish ethnicity in his initial statutory declaration and further that in his interview with the delegate had confirmed that he had been mistreated in Iran because of his Turkish ethnicity. It was submitted therefore that rather than being a new claim, the IAA was required to consider this aspect of the applicant’s claims both on its own and also as part of the applicant’s profile.[39]
[38] Applicant’s amended initiating application filed 23 June 2020.
[39] Applicant’s submissions filed 23 June 2020 at [18].
It was further submitted that to the extent that the applicant’s post-referral submissions referred to his Turkish ethnicity this was by way of a submission in respect of his protection claim made on this basis. It was not ‘new information’ per se which required consideration and assessment under section 473DD.[40]
[40] Applicant’s submissions filed 23 June 2020 at [19].
In reply, it was conceded by the first respondent that the IAA was required to consider the applicant’s claims and the essential integers of those claims, however,:
a)the applicant did not claim to fear harm in Iran because of his Turkish ethnicity, no such claim squarely arose from his claims;[41]
b)the applicant’s claims to fear harm were not related by him to his Turkish ethnicity such that this was not an essential integer of his claims.[42]
[41] NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263
[42] First respondent’s submission filed 7 July 2020 at [4] to [5].
It was further submitted that where an applicant is represented, the claims pressed are those expressly raised by him.[43] In this case, it is submitted that whilst the applicant’s representative repeatedly stated that it did not hold ongoing instructions for the applicant, it is evident that he was assisted by Refugee Legal throughout this process.
[43] First respondent’s submissions filed 7 July 2020 at [5].
There is some force to these submissions.
As to the last point, Refugee Legal assisted the applicant in lodging his visa application,[44] and also in providing evidence to the delegate.[45]
[44] Court book page 42.
[45] Court book pages 136 to 138.
The applicant identifies his ethnicity as being Turkish in his initial application[46] but did not raise this attribute as a basis for fearing harm in Iran. Similarly, whilst he raised his Turkish ethnicity in his statutory declaration made 1 July 2017 with the assistance of Refugee Legal,[47] he did not claim to fear harm because of his Turkish ethnicity.
[46] Court book page 3.
[47] Court book pages 74 to 76.
In these circumstances, it was entirely appropriate for the IAA to treat a claim of harm on account of his Turkish ethnicity, made for the first time in the applicant’s submission to the IAA as ‘new information’ and assess it against section 473DD.
In doing so, the IAA made no error. I do not accept that the reference to the applicant facing fear of harm arising from his Turkish ethnicity in the applicant’s submissions to the IAA was simply a submission and not ‘new information’. Prior to that submission, there was no claimed fear of harm from the applicant’s Turkish ethnicity in respect of which submissions could be made.[48]
[48] Minister for Immigration and Border Protection v CLV 16 [2018] FCAFC 80 at [54]

Ground 5

It was submitted by the applicant that the IAA erred in finding that the applicant’s wife’s mental health was not relevant to his claims.[49] It was submitted that the applicant’s wife’s mental health was in fact relevant to his claims in at least two respects.
[49] Applicant’s amended initiating application filed 23 June 2020.
First, it was said that the applicant’s wife’s mental health was put forward both at the interview and in the post interview material to explain the applicant’s difficulty in obtaining evidence about his brother’s imprisonment for anti-Islam offences.[50] It was submitted that the IAA appears to have accepted this explanation at [21].
[50] Applicant’s submissions filed 23 June 2020 at [24].
It was further submitted that harm may be suffered by an applicant because of harm suffered by a member of his or her family. And in this case, it was relevant in assessing whether any of the consequences of his return to Iran, might impact on or harm the applicant’s wife.[51] It was therefore submitted that in failing to discern any potential relevance about the applicant’s wife’s mental health demonstrates a constructive failure by the IAA to consider this aspect of the applicant’s claims. In making this submission, the applicant refers to and relies upon the decisions in Tickner v Chapman (1995) 57 FCR 451 at 462 and 464 (Black CJ), 476 (Burchett J), 495 and 496 (Kiefel J) and Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 at [45].
[51] Applicant’s submissions filed 23 June 2020 at [24].
In response to the first claim, as noted by the first respondent,[52] the IAA considered the applicant’s submissions in this regard and rejected the applicant’s explanation as to why he had been unable to obtain documents about his brother’s incarceration, including his submission about his wife’s mental health.[53] The IAA therefore did not fail to consider this aspect of the applicant’s submissions.
[52] First respondent’s submissions filed 7 July 2020 at [16].
[53] Court book page 252 at [21].
Moreover, as to the second aspect of this ground, whilst the applicant is correct in principle in so far as he submits that a husband may fear harm on the basis of threats to his wife, no such claim was ever raised, either directly or on the material in this case. Therefore the IAA did not err in ‘failing’ to consider such a claim.
For each of these reasons, ground 5 does not disclose any jurisdictional error.

Ground 7

As noted above, at paragraph [10] of its decision record, the IAA concluded that it was unclear how either the applicant’s wife’s mental health issues or the applicant’s claim that he had been warned by the IRG after his release in 2007 were material to his central claims for protection.[54] It is submitted by the applicant that the IRG was relevant to the applicant’s claimed fear of harm in Iran and therefore the IAA’s reasoning amounts to a failure consider the IRG claim.[55]
[54] Court book page 248 at [10].
[55] Applicant’s submissions filed 23 June 2020 at [25].
It is submitted that the fact that the applicant claims to have been contacted by the IRG after his imprisonment in 2007 was plainly relevant for example, with regard to the degree of adverse interest in him from Iranian authorities. In response, it was submitted for the first respondent that as the IRG claim was ‘new information’ the IAA was precluded from considering it unless it was satisfied that it met the requirements of section 473DD.[56]
[56] First respondent’s submissions filed 7 July 2020 at [18].
I accept the first respondent’s submission in this regard. Moreover, for the reasons set out above, the IAA did not err in concluding that the ‘new information’ referred to in paragraph [10] of its reasons, did not satisfy the requirements of section 473DD. Therefore, as presently framed, ground 7 does not disclose any jurisdictional error.

Ground 8

By ground 8, the applicant once again asserts that the IAA failed to consider the applicant’s claims as put and failed to discharge its statutory duty. In particular, it is submitted for the applicant that the IAA failed to consider the impact on the applicant if he was involuntarily returned to Iran in circumstances where he made it clear that he would not return voluntarily.[57] It was further submitted that notwithstanding the statements by the applicant both in his initial statutory declaration and also in his further statement dated 13 June 2019, that he ‘cannot return to Iran’ and that he feared that he would be arrested if he was ‘forced to return’,[58] the IAA found that the applicant had not said he would not return voluntarily and then concluded that as ‘voluntary returnees re-entering on their own passports or temporary travel documents … do not attract much interest from authorities’.[59]The IAA therefore concluded that the applicant would not face harm returning to Iran as an asylum seeker from Australia.
[57] Applicant’s submissions filed 23 June 2020 at [26].
[58] Court book page 75 and page 221.
[59] Court book page 258 at [35].
It was submitted that there was no proper basis for the IAA to conclude that the applicant would return voluntarily and therefore the IAA did not, as it was required to, consider what might happen if he were to return to Iran involuntarily and without appropriate travel documents.[60] In failing to do so, it was submitted that the IAA failed to discharge its statutory task.
[60] Applicant’s submissions filed 23 June 2020 at [27].
In response, it is submitted for the Minister that the use by the applicant of the term ‘forced to return’ was no more than a statement that if he is not granted a visa, he will be required to return to Iran.[61] Moreover, to the extent that the IAA found that the applicant had not stated that he would not return to Iran voluntarily, this was a finding of fact reasonably open on the evidence. As such, the IAA made no jurisdictional error.
[61] First respondent’s submissions filed 7 July 2020 at [19] to [20].
In support of ground 8, the applicant relies upon the Federal Court decision in CSL15 v Federal Circuit Court of Australia [2017] FCA 577 (“CSL15”). The first respondent submits that CSL15 is distinguishable for the present circumstances. I agree. As noted at [57] of CSL15, the Federal Court of Australia said:
The circumstance that the appellant had never made any claim founded on a premise that he would return to Iran other than by forcible removal from Australia is important. No occasion arose for the Tribunal to consider the appellant’s protection visa application on the assumption that he would ever return voluntarily.[62]
[62] CSL15 v Federal Circuit Court of Australia [2017] FCA 577.
The court went on to say at [59]:
… The appellant’s claim was not restricted to an assertion that he would come to the attention of the authorities by reason of his profile in that limited sense. He relevantly claimed that he would come to the attention of the authorities in Iran because of the involuntary nature of his return there.[63]
[63] CSL15 v Federal Circuit Court of Australia [2017] FCA 577.
In this case, by comparison, the applicant’s claim was that he feared being detained and interrogated at the airport on return to Iran. He did not say that he feared that he would come to the attention of the authorities because he would be involuntarily returned. The reasoning in CLS15 therefore does not apply.
For this reason, ground 8 is not made out.

Ground 9

By ground 9, the applicant asserts that the IAA erred by not properly considering his claims to suffer harm as a result of his views of Islam. Relevantly, the applicant points to the fact that the IAA accepted that the applicant had been detained and beaten on at least three occasions, but then, inexplicably concluded that he would not suffer harm as a result of his views of Islam.[64]
[64] Applicant’s submissions filed 23 June 2020 at [28].
Moreover, it was submitted that if the basis of the IAA’s findings was that the applicant could avoid such harms in the future by ‘acting discreetly’[65] then the IAA had to consider whether it was reasonable for the applicant to modify his behaviour or whether this could fall foul of section 5J(3) of the Act.[66]
[65] Applicant’s submissions filed 23 June 2020 at [29].
[66] See also Appellant s395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473.
In response, the Minister says that this ground is not made out when the IAA’s reasons are fairly read.[67] It is submitted that a fair reading of the IAA’s reasons read in their entirety shows that having accepted that:
a)the applicant had been:
i)detained in 2006 for drinking alcohol; and
ii)detained on suspicion of involvement in a protest in 2009; and
iii)harassed because of non-compliance with Islamic codes and assaulted in respect of one incident in 2010;
b)had been a ‘non-practising Muslim in Iran for some 10 years prior to departure’[68] but found there was no evidence to support his claims to have been detained or punished by the authorities because of this – indeed the IAA did not accept that the applicant had a criminal record for being anti-Islam.[69]
[67] First respondent’s submissions filed 7 July 2020 at [22] to [24].
[68] Court book pages 251 to 252 at [16] and [20].
[69] Court book page 254 at [24].

The IAA however, did not accept that the applicant was ‘of genuine on-going interest to the authorities for being anti-Islam in connection with his younger brother or otherwise when he left Iran in 2013’.[70]
[70] Court book page 256 at [27].
It was against this background that in considering whether the applicant had a ‘well-founded fear of persecution’ for the purposes of section 5J of the Act, the IAA concluded:
I accept the applicant is a 35 year old male from Iran … he was a non-practising Muslim in Iran and was briefly detained and punished some 13 years ago for drinking alcohol, briefly detained on suspicion of involvement in a protest some 10 years ago but no longer of interest on release and harassed and questioned (and assaulted in one incident in 2010) on occasion by the Basij in relation to compliance with Islamic codes, … I do not accept he was of on-going interest to the authorities in connection with his younger brother or being anti-Islam or otherwise when he left Iran in 2013. I do not accept he has a genuine and on-going commitment to Christianity. I accept some of the applicant’s details may have been released in a departmental data breach in 2014 and accessed and that he will be identifiable as a failed asylum seeker from Australia.[71]
[71] Court book page 256 at [30].
It is also against this background that the IAA went on to find that the applicant:
a)would not practice Islam on his return to Iran;
b)was a non-practising Muslim in Iran for some 10 years prior to his departure ‘and there is no credible evidence before me to indicate he was detained or punished by the authorities because of this.’
c)may suffer generalised harassment from authorities and that his family and his wife’s family might pressure him to practice Islam but was not satisfied this amounts to serious harm.[72]
[72] Court book page 257 at [33].
When read in context and fairly, the IAA’s findings in relation to whether the applicant would face risk of harm arising from his views on Islam, were reasonably open to it. It engaged with the submission that he would face a risk of harm due to his views about Islam, but for the reasons given did not accept that this was the case. This was in part based on the fact that the IAA found that there was no evidence before it that he had been detained or punished by the authorities because of the fact that he was a non-practising Muslim as compared to conduct he engaged in which was contrary to Islam, or the practice of Islam, namely, alcohol use, protesting and arguing with Basij when questioned about his wife’s non-compliance with Islamic codes.
I also accept the submission made by the first respondent that this is not a case in which section 5J(3) applied. When read fairly, the IAA did not suggest that the applicant could avoid risk of harm by modifying his behaviour. Rather it concluded on the evidence before it that he had been a non-practising Muslim for some 10 years prior to his departure from Iran and that he would continue not to practice Islam on his return. It was entirely open to the IAA to conclude that having not been detained or punished for being a non-practising Muslim, per se, prior to his departure, he was not likely to come to the attention of the authorities for this reason on his return.
For each of these reasons, ground 9 is not made out.

Ground 10

Ground 10 similarly raises for consideration a claim that the IAA did not consider the harm the applicant might suffer as a result of his rejection of Islam or his exploration of Christianity at the hands of his own family or other Iranian nationals.[73]
[73] Applicant’s amended initiating application filed 23 June 2020.
It is submitted by the applicant that in failing to engage with these claims, the IAA did not discharge its statutory duty.[74]
[74] Applicant’s submissions filed 23 June 2020 at [30].
Moreover, it is submitted that to the extent that IAA assumed that the applicant would be discreet about these matters in Iran so as to avoid harm, it failed to consider whether section 5J(3) applied and therefore fell into error.[75]
[75] Applicant’s submissions filed 23 June 2020 at [30].
This ground fails for similar reasons to those articulated in relation to ground 9. First, it does not have regard to the conclusions reached by the IAA, which were reasonably open on the evidence, that it was not satisfied that the applicant had genuinely engaged in the practice of Christianity whilst in Australia, but rather that any such conduct was engaged in by the applicant to strengthen his claim to be a refugee.
In any event, in relation to the applicant’s claims to fear harm from his family and the broader Iranian community, the IAA:
a)rejected the applicant’s evidence about a conversation allegedly had with his father about his conversion;
b)in any event, found that the applicant may be subject to pressure from his family to practice Islam, but found this did not constitute serious harm.
At [19] the IAA said:
His wife had recently felt compelled to tell his family in Iran about his conversion and they are infuriated and his father may try to kill him because he is a Kaffir and he is certain his or his wife’s family will report him to the authorities.[76]
[76] Court book page 252 at [19].
The IAA then concluded:
I do not accept he has a genuine and on-going commitment to the Christian faith and he has not satisfied me that his recent baptism, Facebook posts and other Christian activities were engaged in otherwise than for the purpose of strengthening his claims to be a refugee.[77]
[77] Court book page 252 at [20].
The IAA also noted in the context of why the applicant had not provided documents regarding his brother’s criminal history:
… his wife had felt compelled to tell his family about his Christian conversion, they now want him dead …[78]
[78] Court book page 252 at [21].
Notwithstanding the applicant’s claims in relation to being a Christian and his commitment to attending church and proselytising in Iran, the IAA did not accept that he had a genuine commitment to Christianity or that he would attend church or proselytise in Iran. This finding was open on the evidence before the IAA. The then concluded:
As I have not accepted the applicant was of interest to the authorities when he left Iran in 2013 or that he will practice Christianity on his return it follows that I do not accept there is a real chance he will be harmed on his return because of this.[79]
[79] Court book page 257 at [32].
Relevantly, the IAA went on to say:
I accept that he (sic) and his wife’s family pressured him to practise his Muslim faith. … I accept the applicant may suffer generalised harassment by the authorities and his and his wife’s families may pressure him to practice Islam but I am not satisfied this amounts to serious harm.[80]
[80] Court book page 257 at [33].
When read in their entirety and fairly, in the sense contemplated in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 29, the IAA clearly considered the applicant’s claims that he faced a risk of harm at the hands of his family and also the broader community. It concluded that these claims were not made out.
For these reasons, ground 10 is not made out.

Conclusion

As none of the grounds of review are made out, the applicant’s application is dismissed with costs to be fixed if not agreed.
The parties will be given liberty to apply to have the question of costs listed, if no agreement is reached.

I certify that the preceding ninety-two (92) paragraphs are a true copy of the reasons for judgment of Judge Mercuri

Associate:

Date: 22 April 2021