DEG18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 953
•26 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DEG18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 953
File number: MLG 1193 of 2023 Judgment of: DEPUTY CHIEF JUDGE MERCURI Date of judgment: 26 September 2024 Catchwords: MIGRATION LAW – application for judicial review – decision of the Immigration Assessment Authority – Safe Haven Enterprise visa – where the delegate’s refusal decision had been before the Authority on three previous occasions – extensive procedural history – whether Authority unreasonably failed to exercise its discretion under s 473DC – whether the Authority failed to consider a claim before it – whether the Authority failed to consider the risk to the applicant as a result of critical social media posts – comprehensive consideration of issues by the Authority – no jurisdictional error established – application dismissed Legislation: Migration Act 1958 (Cth), ss 36(2), 46A, 473DC and 473DD Cases cited: DCP17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 290
Dranichnikov v Minister for Immigration and Multicultural & Indigenous Affairs [2003] HCA 26
DQU16 v Minister for Home Affairs [2021] HCA 10
Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210
Minister for Immigration and Border Protection v EEI17 [2018] FCAFC 166
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6
Division: Division 2 General Federal Law Number of paragraphs: 100 Date of last submissions: 14 June 2024 Date of hearing: 14 June 2024 Place: Melbourne Counsel for the Applicant: Dr A McBeth Solicitor for the Applicant: Victoria Legal Aid Counsel for the First Respondent: Ms K Butler Solicitor for the First Respondent: Sparke Helmore Lawyers ORDERS
MLG 1193 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DEG18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICUTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:
26 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The applicant’s application be dismissed.
2.The applicant pay the first respondent’s cost in a sum to be fixed if not agreed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
DEPUTY CHIEF JUDGE MERCURI:
INTRODUCTION
Before the court is an application for judicial review of a decision of the Immigration Assessment Authority (‘the Authority’) dated 1 June 2023 affirming a decision of a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Minister’) to refuse to grant the applicant a Safe Haven Enterprise Visa (subclass 790) (‘SHEV’) made on 13 March 2018.
Sadly, this proceeding has a long history both before the Authority and this court. Three previous decisions by the Authority were quashed by this court for jurisdictional error. As stated, this application for judicial review relates to the decision of the Authority made on 1 June 2023.
BACKGROUND
The applicant is an Iranian citizen, born in 1979, who arrived in Australia by boat on 13 June 2013.[1] The applicant applied for a SHEV on 9 June 2017 after the Minister lifted the bar previously preventing him from doing so under s 46A(1) of the Migration Act 1958 (Cth) (‘the Act’).[2]
[1] Court book at page 1.
[2] Court book at page 26.
That application was made with the assistance of a migration agent.[3] Annexed to the applicant’s SHEV application was a statement of the applicant.[4]
[3] Court book at pages 37 to 74.
[4] Court book at pages 75 to 76.
On 13 March 2018, a delegate of the Minister refused to grant the applicant a SHEV.[5] On 5 April 2018, the matter was referred to the Authority. The applicant subsequently appointed a representative and provided submissions and a statutory declaration dated 15 May 2018 to the Authority (‘May 2018 submissions and statutory declaration’).[6]
[5] Court book at pages 124 to 141.
[6] Court book at pages 160 to 173.
On 6 June 2018, the first Authority affirmed the delegates’ decision. On 5 November 2018, the court, by consent of the parties, quashed the first Authority decision and remitted the matter to the Authority for determination according to law.
On 16 November 2018, the applicant provided the Authority with further written submissions and a statement from the applicant (‘November 2018 submissions and statement’).
On 3 December 2018, the second Authority, differently constituted, again affirmed the delegate’s decision. And on 16 March 2021, the court again by consent of the parties, quashed the second Authority decision and remitted the application to the Authority to be determined according to law.
On 20 April 2021, the applicant lodged further written submissions and a further statement which attached various Facebook posts made by the applicant in which he was critical of the Iranian authorities.
On 27 April 2021, the third Authority, again differently constituted, affirmed the delegate’s decision.
On 23 March 2023, the court quashed the third Authority’s decision and again referred the matter to the Authority to be determined according to law.
On 1 June 2023, the fourth Authority, again differently constituted, affirmed the delegate’s decision. This application relates to the fourth Authority’s decision.
The applicant claimed a well-founded fear of persecution or a real risk of significant harm on various bases, which, relevant for present purposes, included a fear of harm from the Basij who had previously detained him, severely beaten him and sexually assaulted him for drinking alcohol. The applicant also claimed to fear harm arising from his mental health and drug addiction issues which developed during his lengthy detention in Australia and from social media posts he had made whilst in Australia which were critical of the Iranian regime and also critical of Islam as applied by the Iranian regime.
AUTHORITY’S DECISION
The Authority’s decision of 1 June 2023 is set out at pages 411 to 435 of the court book.
After setting out the background to the application, including the previous three Authority decisions, which were all quashed, the Authority set out the information before it at paragraphs [5] to [31].
Relevantly, the Authority noted that the submissions and statements prepared by the applicant contained information which the Authority considered to be new information. The Authority then proceeded to consider whether that new information met the requirements of s 473DD of the Act and could be included in the review material. I will refer to this material below to the extent that it is relevant.
At paragraphs [32] to [33], the Authority set out its consideration of, and the reasons for rejecting, the applicant’s request for an interview.
At paragraphs [24] to [27], the Authority set out the information provided by the applicant regarding his social media activities in Australia. The Authority noted that this information was new information and the Authority’s reasons for admitting that information under s 473DD.
At paragraphs [28] to [30], the Authority discussed the country information submitted by the applicant and accepted that the requirements of s 473DD were met permitting it to have regard to this material as part of the review material.
At paragraph [31], the Authority summarised some further personal information that the applicant sought to rely upon regarding his relationship with a new girlfriend in Australia. The Authority was not satisfied that the requirements of s473DD were met with regard to this information and therefore did not consider that new information as part of the review material.
The Authority then proceeded to set out the applicant’s protection claims in some detail at paragraph [34]. The Authority set out the relevant statutory provisions at paragraphs [35] to [36] and its consideration of the applicant’s claims to have a well-founded fear of persecution at paragraphs [37] to [80], concluding at paragraph [81] that the applicant did not meet the requirements of s 36(2)(a) of the Act.
At paragraphs [82] to [88], the Authority considered and rejected the applicant’s claims under the complementary protection provisions of the Act.
The Authority therefore affirmed the delegate’s decision to refuse the applicant a SHEV.
PROCEEDINGS IN THIS COURT
The present court proceedings were commenced by way of an application for judicial review filed with the court on 5 July 2023. The applicant obtained legal representation on 5 April 2024 and an amended application was filed thereafter on 17 May 2024.
The hearing in this matter took place before me in-person on 14 June 2024 with both parties represented by counsel. The court was greatly assisted by the submissions made by counsel.
GROUNDS OF REVIEW
The applicant raises three grounds of review in his amended application filed on 17 May 2024. I will address them in turn.
Ground 1
By ground 1, the applicant asserts that:
1. The IAA unreasonably failed to exercise its power under s 473DC of the Migration Act 1958 (the Act) before making a finding that the summons was fraudulent.
As stated, one of the claims made by the applicant was that he feared harm from the Basij. He claimed that he had been arrested by the Basij for carrying alcohol, that he had been taken by the Basij to the local mosque, severely beaten and sexually assaulted. The applicant then claimed that he had been handed over to the police and released upon his brother paying a bribe to the police.
The Authority accepted these claims. At paragraph [39], the Authority set out the applicant’s claims in some detail. At paragraph [42], the Authority refers to country information about the role of the Basij. The Authority then concluded at [43]:
Considering the applicant’s consistent evidence about the incident with the Basij in 2002, in that he was caught carrying alcohol, and the country information about the role of the Basij in enforcement of religious restrictions and social behaviour, I accept that the applicant was taken by the Basij to their base at the local Mosque. … I accept that the applicant was physically and sexually abused by the Basij prior to being handed over to the police. I accept that the applicant sustained injuries as a result of the abuse. The applicant has consistently claimed, and I accept, that once at the police station he was allowed to call his brother who came to the police station and secured the applicant’s release by paying a bribe. Country information cited above indicates that bribery to avoid punishment was possible. I accept that the police closed the applicant’s file and did not charge the applicant for the offence of carrying or consuming alcohol. I accept that due to fear for his safety, the applicant did not go to the hospital to obtain treatment and that he remained at home to recover.
The applicant then claimed that about a month after this incident, he went to work in another region where he remained working in various roles between 2002 and 2013. The applicant further claimed that once the Basij realised that the applicant had been released by the police they came searching for him. They attended his family home but his father told them that he no longer lived there. He claims that the Basij took his brother on three occasions but then released him when they realised that he was not the applicant. The applicant also claimed that the Basij sent various letters to his parent’s home (variously referred to as ‘letters’, ‘notifications’ and ‘summonses’) on multiple occasions prior to his departure from Iran in 2013.
The Authority records that the applicant claimed that sometimes the police sent the ‘letters’ but that he suspected that they were being sent at the behest of the Basij. The applicant stated that these letters requested him to present himself, but that he did not do so as he was fearful of the Basij and the police. The Authority further records that the applicant claimed that the Basij continued sending letters to his parents even after he came to Australia. During the SHEV interview, the applicant said he would obtain a copy of the ‘letters’ or ‘summonses’ but did not do so prior to the delegate’s decision.
In this context, at paragraph [48], the Authority said:
The 2009 Danish Refugee Council report reported that summonses could be issued by the civil, criminal, or revolutionary court. If a person did not respond to the summons, they were breaking the law. It was reported that when a person was summoned in a criminal case and failed to report, according to the Penal Code, the person would be searched for, and an arrest warrant might be issued. It was also reported that summonses could be easily obtained illegally and was easy to forge by erasing information in the summons and adding new details. …
The applicant ultimately obtained a copy of one ‘summons’ from his parents which he provided to the Authority on 15 May 2018, and subsequently on 29 May 2018 provided an English translation. The applicant explained that he was unable to provide more ‘summonses’ as his parents who had been keeping these documents moved house and the other summonses were lost in that move.
The first Authority was not satisfied that the summons document was genuine, based on the Authority’s rejection of the applicant’s narrative about the manner and the reason for which the document was sent.
In response to this concern, the applicant provided a further statement in his November 2018 submissions and statement in which he reiterated that the summons was genuine and invited the Authority to compare the original document with other similar documents that the Department had received to establish its authenticity.
The central finding relevant to ground 1 is set out at paragraph [54] of the Authority’s reasons, where it said:
Given the differences in the applicant’s evidence about the claimed summonses, the implausibility of his evidence that the authorities continued to issue summonses which he did not comply with for over a decade, and issues noted about the copy of the document/summons provided by the applicant, I do not accept that the Basij, the police or the courts issues summonses requiring the applicant to present himself to the Basij or the court. As noted above, country information indicates that summonses can be easily obtained illegally and are easy to forge by erasing information in the summons and adding new details. While I note the applicant’s submission that he wished to provide the IAA with the original summons and that the document could be compared with similar documents that the Department has received to help establish its veracity, the IAA was provided with a clear colour copy of the document and I do not consider that viewing the original would establish that the document is authentic. Given my concerns and the country information around the ease of obtaining such documents illegally, I am not satisfied of the authenticity of the document presented as a summons and do not accept that any summonses were issued in relation to the applicant. … Based on all the material before me, I am not satisfied that after his release from police custody in 2002 without charge or punishment for consumption of alcohol, which was secured by payment of a bribe, that the applicant was of any ongoing interest to the authorities in connection with this incident, or that his family was searched, or that his family members were questioned about him.
(Emphasis added)
It is submitted for the applicant that the effect of the Authority’s findings in this paragraph is that the Authority found that the summons produced by the applicant was fraudulent. It is submitted that in coming to this finding, the Authority acted unreasonably in failing to exercise its power under s 473DC of the Act to obtain the original document and/or to compare it to other similar documents in the Department’s possession to address its concerns about the genuineness of the document produced by the applicant.
The applicant also submits that the Authority failed to put any allegation of forgery to the applicant for his response.
It is submitted for the applicant that the Authority’s failure to exercise its ability to obtain further information from the applicant, or indeed from the Department, in this regard was legally unreasonable. The applicant concedes that a Part 7AA review is a limited form of review in that the Authority is generally required to conduct a review on the papers, however, that limited form of review is premised on the assumption that all pertinent issues have been canvassed before the delegate. It is submitted for the applicant that where an adverse finding is proposed to be made on a basis not previously put to the applicant, then a reasonable decision maker would have exercised its power under s 473DC of the Act.
That was not done in this case, and it is said for the applicant that the ultimate decision was therefore affected by jurisdictional error.
For the following reasons, I do not accept these submissions.
The reasonableness of the Authority’s decision to, or not to, exercise its discretion to obtain more information is to be determined in the statutory context in which the decision is made. There are limitations on the circumstances in which the Authority can seek or consider information that was not before the delegate.
In this case, it is of note that the issue of the authenticity of the summons was put in issue in the delegate’s decision.[7] The delegate raised with the applicant the fact that he had obtained his Iranian passport shortly before he departed Iran without any problems. It was put to the applicant that it seemed implausible that if he had numerous outstanding summonses that this would not have been picked up in this process. It was also put to the delegate that after his assault in 2002, he remained in Iran working, albeit not in his hometown, for a further 11 years and that it was difficult to accept that the authorities would not be able to find him if there were so many outstanding summonses which he had not complied with.
[7] See court book at pages 128 to 130.
In this context, the findings made by the Authority at paragraph [54] were consistent with country information and reflective of the concerns raised with the applicant repeatedly by the delegate and earlier Authority reviews. The applicant was on notice of the discrepancies in relation to his claims about the summonses and he was given fair opportunity to provide evidence to address those discrepancies.
Moreover, and importantly, this ground relies upon a claim that the Authority made a positive finding that the summons was fraudulent in that the applicant (or someone on his behalf) had erased some details and replaced details about the applicant. It is submitted for the applicant that had the Authority obtained the original, they would have seen that in fact there had been no such erasure. A fair reading of the Authority’s reasons does not support a conclusion that such a finding was in fact made.
Rather, the Authority referred to country information which said that ‘summonses can be easily obtained illegally and are easy to forge by erasing information in the summons and adding new details’ (emphasis added). Moreover, the Authority went on to say:
Given my concerns and the country information around the ease of obtaining such documents illegally, I am not satisfied of the authenticity of the document presented as a summons and do not accept that any summonses were issued in relation to the applicant.
On a fair reading of the Authority’s reasons, I find that the Authority understood the country information to say that summonses could be obtained illegally, without specifying how that might occur. And additionally, that summonses, whether obtained legally or otherwise, could be tampered with by erasing information and adding new details. The finding which was made by the Authority was based on the concern that the country information provided that summonses could be obtained illegally. That, together with the comment by the Authority that having been provided with a clear colour copy of the summons relied upon by the applicant, there was no need to see the original as that would not assist in determining the authenticity of the document. This suggests, on a fair reading of the Authority’s reasons, that the original would not show any obvious signs of tampering, erasure or additional information.
Or to put it another way, even if the Authority were satisfied that the document produced by the applicant did not contain any erasures and amendments, that does not mean that the Authority would have concluded that it had not been obtained illegally. Those two propositions can exist concurrently. A fair reading of the Authority’s reasons leads to the conclusion that this was the view taken by the Authority. That is, having been provided with a clear and colour copy of the document, it was satisfied that the document had not been tampered with in any way, but it was nonetheless of the view that given the ability to obtain such documents illegally in Iran, based on country information, that it was not satisfied of the authenticity of the document.
That reasoning and finding was reasonably open on the material before the Authority. No error is disclosed.
For completeness, I note that the applicant’s reliance upon the decision in DCP17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 290 (‘DCP17’) is misplaced. That decision concerned a review of a decision to cancel a protection visa. In that case, the Tribunal was given documents by a third party which indicated that the applicants had provided false information on their protection visa application. Those documents were relied upon by the Tribunal as a reason for the cancellation but they had not been provided to the applicants for comment. The decision in DCP17 turned on the question of whether s 424A(1) of the Act required the Tribunal to provide a copy of those documents to the applicant as part of its obligation to provide the applicant with ‘clear particulars’ of any information which the Tribunal considered would be the reasons, or part of the reason for affirming the decision under review. It was held in that case that the documents contained information that would be the reason for affirming the delegate’s decision and that a failure to provide those documents deprived the applicant of a meaningful opportunity to comment on or respond to adverse information before the Tribunal. In that case, it was held that the failure to provide the applicant with those documents therefore meant that the Tribunal’s decision was affected by jurisdictional error.
In this case, the Authority had no similar obligation to provide particulars of any information likely to result in an adverse decision nor does the Authority have an obligation to provide the applicant with a hearing in the same way as is required under s 425 of the Act.
But in any event, the applicant in this case was on notice of the concerns about the authenticity of the summons, provided information to the Authority which the Authority considered. For the reasons above, I do not accept the underlying premise of the applicant’s submission that in this case the Authority found that the summons had been altered in some way by the applicant such that providing the original document would have provided the applicant with an opportunity to address that concern. The reasoning in DCP17 does not apply in this case.
The applicant also refers to and relies upon the decision in Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210 (‘CRY16’) in which it was held that the Authority’s failure to consider exercising its power to get new information or documents from the visa applicant was legally unreasonable. In that case, the Authority affirmed the delegate’s decision but on a different basis to that relied upon by the delegate. The Authority concluded that the applicant could relocate to another place within his country of origin where he would not face a real chance of persecution. The issue in the appeal to the Full Court of the Federal Court was whether the Authority had acted unreasonably in not considering whether to exercise its discretion under s 473DC to give the visa applicant an opportunity to address the dispositive issue of relocation, in circumstances where that issue had not been the subject of consideration by the delegate.
It was held in that case that the power under section 473DC must be exercised within the bounds of legal reasonableness and that in this case, there was a lack of an evident and intelligible justification in circumstances where the authority did not have, and the visa applicant was likely to have, information about his personal circumstances which would impact on the relocation assessment. The Court in CRY16 said, at [82]:
… The Authority’s failure to consider the exercise of that discretionary power meant that it disabled itself from considering what was reasonable, in the sense of ‘practicable’, in terms of relocation. In our opinion, as a consequence, the review by the Authority, under s473CC miscarried for jurisdictional error.
Again, the premise underlying reliance upon this decision is that the Authority made a finding that the applicant forged the summons by altering it and that finding was made without first inspecting the original, which it is submitted would have definitively put the Authority’s concerns in this regard to rest. For reasons previously discussed, I do not accept that such a finding was made by the Authority.
Therefore, the reasoning in CRY16 does not assist the applicant in this case.
For each of these reasons, ground 1 is not made out.
Ground 2
By ground 2, the applicant claims:
2. The IAA failed to consider an issue in the review, namely whether the applicant faced a real risk of significant harm if forcibly confined to a drug rehabilitation centre in Iran.
The Authority accepted that whilst in Australia, the applicant suffered a decline in his mental health and developed an addiction to heroin. Whilst in Australia, the applicant received treatment for his mental ill health and his drug addiction.
The applicant points to the fact that the delegate’s decision record contained a reference to country information which indicated that government run rehabilitation centres in Iran featured corporal punishment, a lack of adequate food and were described by a previous user as ‘true hell’. The country information referred to also ‘recorded that “53 people had died of bloody diarrhoea” at one centre, and that a number of the persons being treated there had set fire to their mattresses to protest their “horrible living conditions” and to enable them to “escape in the ensuing blaze”.[8]
[8] Applicant’s Outline of Submissions filed on 22 May 2024 at paragraph [20].
It is submitted for the applicant that the use of the word ‘escape’ in this country information indicates that the patients were being deprived of their liberty and could not freely leave. It was further submitted that these conditions, as described in the country information, clearly fell within the definition of ‘cruel or inhuman treatment’ in ss 5 and 36(2A) of the Act.
It is submitted for the applicant that the Authority did not consider the country information provided by the applicant regarding the state of rehabilitation camps in Iran in his May 2018 submissions. Relevantly, in those submissions, the applicant’s representative said:
Country information
There are a number of recent sources of information regarding the social and criminal risks faced by Iranians suffering from drug addiction and the difficulties in obtaining access to public or private treatment for drug addiction in Iran.
There is social opprobrium for those addicted or using drugs due to the stigma addiction holds. Iranian governmental officials heavily condemn the usage of drugs, saying that such people “might as well die on the streets rather than check into rehab camps”.
The delegate’s decision refers to these ‘rehab camps’ and properly quotes available country information regarding reports of ‘corporal punishment and lack of adequate food’ and descriptions of the camps as ‘true hell’.
The Authority dealt with the issue of the applicant’s drug addiction and possible services available to him if he were to return to Iran. At paragraphs [18] to [19] of the Authority’s decision record, the Authority referred to the applicant’s May 2018 statement and summarised some of the matters contained therein.
At paragraph [22] of the Authority’s decision record, the Authority found that the details in the May 2018 material submitted by the applicant which dealt with his drug addiction and criminal conviction met the requirements of s 473DD and ought to be considered by the Authority. At paragraph [23], the Authority said:
The extracts of the country information reports referred to in the submission, are not credible personal information in the relevant sense. The information in these sources appear to be on par with the information reported in the sources considered by the delegate and report on similar issues. Several years has passed since the publication of these reports and the applicant has provided the IAA with the most recent Department of Foreign Affairs and Trade (DFAT) report on Iran (discussed below) which reports on the situation for drug addicts in Iran and their access to available treatment options. Given these matters, I am not satisfied that ss 473DD(b) or (a) of the Act is met.
The applicant submits that ‘the issues discussed by the delegate and the commentary on that discussion contained in the submission to the IAA were not new information and were required to be considered in the review’.[9]
[9] Applicant’s Outline of Submissions filed on 22 May 2024 at paragraph [24].
The applicant concedes that the Authority considered the risk of harm to the applicant if he were to return to Iran by reason of his drug addiction at paragraphs [60] to [65] of the Authority’s reasons. However, it is submitted that the focus of the Authority’s reasoning here was on whether the applicant would be able to access necessary treatment and medication. The applicant further submits that the Authority failed to consider whether the treatment provided by rehabilitation clinics in Iran would itself constitute a significant harm as contemplated by s 36(2A) of the Act.
It is submitted that this claim clearly arose on the material before the delegate and the Authority failed to consider it.[10] The applicant submits that the Authority’s failure to consider this claim constitutes a failure to perform its task under s 473DC and that this constitutes a jurisdictional error for the same reasons as those articulated in Dranichnikov v Minister for Immigration and Multicultural & Indigenous Affairs [2003] HCA 26 and that the error was material in that it was at least possible that the Authority could have accepted that the applicant faced a real risk of harm if that claim had been considered.
[10] Applicant’s Outline of Submissions filed on 22 May 2024 at paragraph [28].
The issue in ground 2 therefore is whether the Authority considered the claim as framed. I accept that if it did not do so, that would constitute a failure to undertake its statutory task and that such an error would be material.
For the following reasons, however, I find that the Authority did consider the claim and therefore no error arises.
The Full Court of the Federal Court considered the function of the Authority in Minister for Immigration and Border Protection v EEI17 [2018] FCAFC 166 where, after setting out the statutory scheme in Part 7AA of the Act, it said:
33In Plaintiff M174/2016 v Minister for Immigration and Border Protection … the majority (Gageler, Keane, Nettle JJ) described the function of the IAA in the context of the statutory regime:
‘[16]Section 473CC(1) provides that context that the [IAA] ‘must review a fast track reviewable decision referred to the [IAA] under section 473CA’. Section 473CC(2) goes on to provide that the [IAA] may either ‘affirm the fast track reviewable decision’ under s 473CC(2)(a) or ‘remit the decision for reconsideration in accordance with such directions or recommendations of the [IAA] as are permitted by regulation’ under s 473CC(2)(b).
[17]Notwithstanding the inability of the [IAA] to set aside a fast track reviewable decision and to substitute its own decision, the [IAA] when conducting a review of a fast track reviewable decision is not concerned with the correction of error on the part of the Minister or delegate but is engaged in a de novo consideration of the merits of the decision that has been referred to it. The task of the [IAA] under s 473CC(1) is to consider the application for a protection visa afresh and to determine for itself whether or not it is satisfied that the criteria for the grant of the visa have been met. The powers conferred on the [IAA] by s 472CC(2) then enable the [IAA] to make orders appropriate to give effect to the outcome of its own determination of the merits. If the [IAA] is not satisfied that the criteria for the grant of the visa have been met, the appropriate order for the [IAA] to make is to affirm the decision under review. If the [IAA] is so satisfied, and the [IAA] has found no other statutory impediment to the grant of the visa, the appropriate order for the [IAA] to make is to remit the decision for reconsideration by the Minister in accordance with such permissible directions or recommendations as the [IAA] considers are appropriate to give effect to the [IAA]’s determination.’
…
34These statements leave no room for doubt as to the nature of the decision of the IAA. The obligation of the IAA is to consider the materials and provide its decision as to whether or not the visa applicant is entitled to the grant of a visa. The IAA is not concerned with the correction of error on the part of the delegate but is engaged in a de novo consideration of the merits of the decision that has been referred to it. The task of the IAA under s 473CC(1) of the Act is to consider the application for a protection visa afresh. …
…
42The IAA statement of reasons records that it has “had regard to the material given by the Secretary under s 473CB of the [Act]”. …
43The present dispute does not lie at the level of whether the IAA was provided the material pursuant to s 473CB, but whether the IAA’s regard to it required reflection in its reasons. …
…
47… the obligation to provide reasons under s 473EA(1) of the Act does not extend to providing an analysis of matters that are not material to the de novo review that it is conducting. … there is a distinction to be drawn between considering material and the required contents of the statement of reasons of the IAA. Section 473EA(1) provides that if the IAA makes a decision on review, it must make a written statement that sets out the decision on the review and sets out the reasons for the decision and records the day and time the statement was made. The requirement for the reasons for the decision draws its content from the nature of the review being conducted. …
…
49In our respectful view, the error of the learned primary judge arose because he conflated the requirement under s 473DB(1) for the IAA to conduct a review by considering the review material, with the requirement under s 473EA(1)(b) to provide reasons for the decision. The obligation to give reasons is not commensurate with the obligation to consider the review material. … The IAA is not required to do more than set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based. The fact that a matter is not mentioned in a statement of reasons does not mean that it was not considered …
The Authority made reference to the applicant’s May 2018 submissions and to the quality of drug rehabilitation services in Iran at paragraph [58] of its reasons, where the Authority stated:
In April 2021, it was submitted …it is apparent that drug addiction services in Iran are either prohibitively costly or limited to compulsory rehabilitation camps, which are less likely to provide treatment that (sic) to expose drug addicts to degrading living standard.
At paragraphs [62] to [63] of its reasons, the Authority deals with the country information regarding drug addiction in Iran and in that context refers to drug rehabilitation centres in the country. As noted by the Minister, the country information to which the Authority refers at footnote 11 of its reasons is the same country information to which the delegate had referred in their reasons for decision.
In the delegate’s decision, the delegate dealt with the issue of treatment available for drug addiction in Iran. Relevantly, the delegate said:
Although the applicant has not made any specific claims in this regard, based on the applicant’s criminal history in Australia it is apparent that he may have previously suffered, or may still suffer, from drug addiction. Based on the applicant’s previous criminal history it is therefore pertinent to assess the availability of drug addiction treatment in Iran.[11]
[11] Court book at page 137.
In considering this issue, the delegate went on to summarise certain country information including by saying, ‘[t]hose who are registered addicts are exempted from punishment if they have a certificate from a rehabilitation centre. Those without a certificate may be taken into custody by police and admitted to a rehabilitation centre’.[12]
[12] Court book at page 138.
The delegate then further said:
According to reports by AI Monitor, there are state-sponsored detoxification and rehabilitation centres in Iran, as well as a large number of privately run centres. …
There have been some unfavourable reports in relation to the government run rehabilitation centres. One report stated that the treatment of patients in some government run rehabilitation centres was unfavourable and included corporal punishment and a lack of adequate food. In a 2014 article, AI Monitor quoted a man who had recently been released after a 40-day rehabilitation period at a government centre. The man … described the government run rehabilitation centre as ‘true hell’. The same report cites a January 2014 report by an Iranian daily newspaper stating that 53 people had died of bloody diarrhoea at the … rehabilitation centre. At the same centre a month earlier, ‘a number of addicts at the camp had set fire to their mattresses … in protest of their horrible living conditions, enabling them to escape in the ensuing blaze’.[13]
[13] Court book at page 138.
The delegate’s decision references the country information upon which these statements are based.[14] This is the same country information which the Authority referred to and cited in its reasons paragraph [62]. Moreover, the Authority also considered the issue of rehabilitation centres by reference to the 2020 DFAT report, a report which for obvious reasons was not before the delegate. I accept the Minister’s submission that it is evident that the Authority engaged with the claim by the applicant that if he were required to return to Iran he might be forced to attend such a centre and that this would expose him to a real risk of harm. And relevantly, the IAA states, after referring again to the 2020 DFAT report at paragraph [64]:
I accept that the level of treatment and care that the applicant has been able to access in Australia for treatment of his mental health and drug addiction, may not be accessible to him if returned to Iran. Nonetheless, considering the country information regarding Iran’s health care system and the provision of mental health services and treatment and rehabilitation for drug addicts, I am not satisfied that there is a real chance that the applicant will not be able to access any ongoing treatment or medication that he may require if returned to Iran, for any reason specified in s 5J(1) of the Act.
[14] See court book at page 138, footnotes 65 to 69.
The applicant says that the Authority’s finding at above is limited to a finding about access to treatment. However, the Authority’s reasons ought to be read as a whole. When read as a whole and without a keen eye to error, it is clear that the Authority did not confine its assessment of the applicant’s claim to whether he would be able to access treatment but also to whether in accessing that treatment, in relation to his drug addiction, he was at risk of harm to the requisite level.
For example, the Authority returned to this issue at paragraph [65], where it concluded:
… I do not accept that there is a real chance that the applicant would face any harm if he sought treatment for any mental health issues or drug addiction, if returned to Iran, or that he faces a real chance of any persecution due to any mental health conditions or drug addiction he may continue to have …
Further, at paragraph [80], the Authority went on to say:
Considering the applicant’s circumstances as a whole and in light of what I have accepted of his claims, I am not satisfied that the applicant faces a real chance of serious harm at the hands of the authorities or any other person in the reasonably foreseeable future. … I am also not satisfied that he would be denied access to treatment for any ongoing mental health or drug addiction issues that he may have for any reason specified in s 5J(1) of the Act or that he would face a real chance of persecution for these reasons. …
In considering whether Australia’s complementary protection obligations were engaged, the Authority, after setting out the relevant statutory framework and definitions, said, at paragraphs [85] to [86]:
… Nor am I satisfied that he faces a real risk of arbitrary deprivation of his life or being subject to the death penalty or tortured.
… On the information before me, I am not satisfied that any residual or ongoing mental health or drug addiction issues that the applicant may continue to suffer from would lead him to be arbitrarily deprived of his life or face the death penalty. “Torture”, “cruel and inhumane treatment or punishment” and “degrading treatment and punishment” are defined in s 5(1) of the Act or any treatment that the applicant would face for these reasons would arise from any intention by any person to inflict pain or suffering, or severe pain or suffering or to cause extreme humiliation. I am not satisfied that the applicant faces a real risk of significant harm for this reason.
When viewed as a whole and when read fairly, in the sense identified in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6, without a keen eye to error, I find that the Authority properly identified the applicant’s claim to fear harm arising from being forcibly confined to a drug rehabilitation facility in Iran, considered that claim, by reference to the country information as well as by reference to the submissions made by the applicant and on his behalf, but ultimately rejected that claim.
For these reasons ground 2 is not made out.
Ground 3
By ground 3, the applicant claims:
3. The IAA failed to consider whether, as a necessary and foreseeable consequence of being required to apply for an Iranian travel document to facilitate his removal from Australia, the Iranian authorities would become aware of the applicant’s social media posts, which would expose the applicant to a real risk of significant harm.
The applicant claimed to fear harm on return to Iran as a result of various social media posts that he has made whilst in Australia which are critical of the Iranian authorities and regime and also critical of Islam.
Relevantly, the Authority accepted that the applicant had made such posts and that they were reflective of his views and not solely made to strengthen his refugee claim. However, the Authority did not accept the applicant’s claim that he posted a comment on Instagram critical of the Iranian authorities in or about May 2018 which his brother asked him to delete because he had been questioned about it.[15] In addition, the Authority noted that the applicant’s last comments were posted in 2020 and that the applicant did not claim that his family has been questioned about the applicant’s social media activities since then.[16]
[15] Authority’s decision record dated 1 June 2023 at paragraph [73].
[16] Authority’s decision record dated 1 June 2023 at paragraph [75].
The Authority also noted country information which indicated that:
… it is reported that authorities monitor social media. Individuals posting content openly critical of the Islamic republic, its institutions and policies or deemed to be pushing moral boundaries may attract adverse attention including individuals based abroad. However, it is reported that the authorities do not comprehensively and cannot effectively monitor Iranians’ online activities. While there have been instances of authorities keeping a close eye on Facebook activities and have at times blocked or filtered websites they consider objectionable … the information indicates that individuals with a public profile who are politically active, advocate for greater human rights, have connections to foreigners or are otherwise perceived as threats to the Islamic Republic are more likely to have their social media monitored. Groups such as journalists, bloggers, administrators of social media accounts and those who run popular groups or chat apps are at higher risk of arrest and harassment by the authorities.[17]
[17] Authority’s decision record dated 1 June 2023 at paragraph [72].
At paragraph [75], the Authority stated that it was not satisfied that ‘the applicant’s very limited and sporadic activities have come to the attention of the authorities in Iran’. The Authority also considered the claim that the applicant’s mental ill health meant that he was not able to fully understand the consequences of his conduct leading him to make some of these posts. The Authority said that even if it accepted this was the case, which it did not expressly do, the country information indicated that the authorities could not and did not effectively and comprehensively monitor the online activities of all Iranians but were more concerned with journalists and activists. Moreover, the Authority also had regard to the fact that the applicant has not stated that his family has been approached or questioned about the applicant in recent years. All of these factors led the Authority to conclude that the applicant’s online activities have not come to the attention of the authorities and would not in the foreseeable future.[18]
[18] Authority’s decision record dated 1 June 2023 at paragraph [75].
The applicant submits that in circumstances where the Authority accepted that Iran does not permit involuntary returnees, such that the applicant would only be able to return on a ‘voluntary’ basis after obtaining an Iranian passport or temporary travel documents, the Authority was required to consider whether in obtaining those travel documents, there was a risk that the applicant’s social media activity would come to the attention of the authorities in Iran. In considering this, the applicant submits that the Authority was required to consider the possible risk to the applicant and that it failed to do so. This failure, the applicant says, amounted to a failure to consider the necessary consequence of removal of the applicant from Australia.[19]
[19] Court transcript at page 16; DQU16 v Minister for Home Affairs [2021] HCA 10 at [18].
It is submitted for the applicant that the failure to consider the risk to the applicant in this way was material. This is particularly so in circumstances where the Authority accepted that there were severe consequences to those who are found to have criticised the regime in Iran.
The Minister submits that fairly read, the Authority considered but rejected the suggestion that if he were required to obtain travel documents to return to Iran, the posts the applicant had made on social media whilst in Australia would come to the attention of the authorities. It is submitted for the Minister that when read fairly, the Authority clearly did understand the applicant’s claims and considered those claims.
It is the case that the Authority did not expressly refer to the claim to fear harm on his return to Iran from his social media posts coming to the attention of the authorities, including as a result of having to apply to obtain travel documents to allow the applicant’s repatriation. However, a fair reading of the Authority’s reasons suggest that it did understand and considered this claim. At paragraph [87] of the Authority’s reasons, after expressly dealing with:
(a)the applicant possibly coming to the attention of the authorities for having consumed alcohol; and
(b)the risk of harm to the applicant of his mental health and drug addiction;
the Authority said:
I have found above that there is otherwise no real chance of the applicant facing any harm. The Federal Court has held that ‘real risk’ imposes the same standards as the ‘real chance’ test. Having regard to my findings and reasoning above I am also satisfied that the applicant does not face a real risk of significant harm.
This is, fairly read, a reference back to the Authority’s earlier findings in considering whether the applicant faced a risk of harm, including whether he faced a risk of harm arising from the social media posts that he had made.
This includes the Authority’s findings at paragraph [78] about the process on return of a voluntary returnee. Relevantly, at paragraph [78], the Authority said:
… Given that the applicant will only be returned on a voluntary basis, it may be possible for him to obtain an Iranian passport. However, even if the applicant returns to Iran on temporary travel documents, I am not satisfied he faces a real chance of persecution.
When this statement is read together with the Authority’s findings at paragraph [87], it discloses that the Authority did consider the risk of harm to the applicant from returning to Iran on temporary travel documents and the associated risk to him given the other matters he had raised in his claim, including that he had made social media posts adverse to the authorities. Relevantly, at paragraph [78], the Authority went on to note that there was country information which suggested that the applicant may be questioned upon his return.
In this context, the Authority went on to say, at paragraph [79]:
Other than the possible questioning on arrival, DFAT advises that voluntary returnees do not attract much interest amongst the large regular international movements of Iranians and that they will generally move quickly through airports. … Unless returnees have an existing profile or were the subject of adverse official attention prior to departing Iran, they are unlikely to attract attention from the authorities. … On the information provided and in considering the applicant’s overall profile, I am not satisfied that he faces a real chance of any harm for reasons of his travel and residence in Australia or for seeking asylum in Australia.
Further, at paragraph [80], the Authority went on to say:
… While I accept that … he engaged in commenting on some posts on social media in 2019 and 2020 … considering his lack of any ongoing adverse profile with the authorities in the past and my findings and the country information cited above, I am not satisfied that the applicant’s profile in Australia would place him at real risk of harm if returned to Iran.
I accept that these comments and observations were made in the context of the Authority’s assessment under s 36(2)(a) of the Act. However, the Authority adopts these observations and findings by its statement in paragraph [87], for the purposes of its assessment under s 36(2)(aa) of the Act.
For each of these reasons, ground 3 is not made out.
CONCLUSION
As none of the grounds of review are made out, the appropriate orders are that the applicant’s application be dismissed with costs.
I therefore make the orders set out at the commencement of these reasons.
I certify that the preceding one hundred (100) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri. Associate:
Dated: 26 September 2024
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