DEG18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 221
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DEG18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 221
File number(s): MLG 1018 of 2021 Judgment of: HER HONOUR JUDGE C.E. KIRTON KC Date of judgment: 23 March 2023 Catchwords: MIGRATION – application for judicial review of a decision of the Immigration Assessment Authority (“IAA”) – where delegate of Minister believed applicant’s account of arrest and torture – where IAA did not accept applicant’s account of arrest and torture and did not, despite applicant’s request, provide applicant with an opportunity to appear in-person to give oral testimony – whether IAA acted unreasonably in failing to provide in-person hearing – four grounds of review – three of the grounds of review not made out – decision of IAA not to provide in-person hearing was legally unreasonable – applicant granted relief sought. Legislation: Migration Act 1958 (Cth) ss 36, 65, 473CA, 473CB Cases cited: ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439
Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473
DWA17 v Minister for Immigration and Border Protection [2019] FCAFC 160
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CRK18 [2021] FCA 1070
MZJJO v Minister for Immigration and Border Protection (2014) 239 FCR 436
Division: Division 2 General Federal Law Number of paragraphs: 70 Date of last submission/s: 28 March 2022 Date of hearing: 28 March 2022 Place: Melbourne (via video link) Counsel for Applicant: Dr A McBeth Solicitors for Applicant: Victoria Legal Aid Counsel for the Respondents: Mr N Wood SC Solicitors for the Respondents: Sparke Helmore ORDERS
MLG 1018 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DEG18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
HER HONOUR JUDGE C.E. KIRTON KC
DATE OF ORDER:
23 march 2023
THE COURT ORDERS THAT:
1.The decision of the Immigration Assessment Authority, dated 27 April 2021 be quashed.
2.A writ of mandamus be issued, directing the Immigration Assessment Authority to redetermine the Application according to law.
3.The First Respondent pay the Applicant’s costs.
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
HER HONOUR JUDGE C.E. KIRTON KC:
INTRODUCTION
By an Amended Application, filed on 3 March 2022 the Applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) which affirmed a decision of a Delegate of the Minister (Delegate) to refuse to grant the Applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (Migration Act) on four grounds. The first ground is that the Authority acted unreasonably in departing from the Delegate’s finding accepting that the Applicant had been sexually tortured, without first inviting him to an interview. For the reasons that follow, I have concluded that the first ground has been made out and the Applicant is entitled to relief accordingly. The other three grounds, which it will be necessary to traverse in detail, are not, in my view, established.
BACKGROUND HISTORY
It is not possible to consider the Applicant’s grounds of review properly without some understanding of the history of the application in toto. This history is taken from the materials filed by the parties and is not controversial. The Applicant is a national of Iran who arrived in Australia by boat on 13 June 2013 as an unauthorised arrival. He applied for a Safe Haven Enterprise Visa (SHEV) on 9 June 2017 after the statutory bar preventing boat arrivals from applying for protection visas had been lifted. That application was considered by the Delegate whose decision commences at page 110 of the Court Book (CB). It will be necessary to return in detail to what the Applicant and those representing him have said on his behalf from time to time but relevantly, for these purposes, the Delegate found at CB 113:
Based on his responses at interview and relevant country information, I accept that the applicant was arrested, assaulted and tortured by the Basij in 2002 (approximately) as claimed and then subsequently released by the police after a bribe was paid.
The Delegate went on however to conclude that the Applicant’s claims to be of interest to the Basij and the police both while he was in Iran until 2013 when he left lawfully and/or in the event of his return, were not made out. The Delegate also did not accept the Applicant’s other claims, including fearing harm as a failed asylum seeker, nor did the Delegate accept that the Applicant would be unable to access treatment for his mental health difficulties. The Delegate also did not accept that the Applicant would be unable to access treatment for his drug dependency.
The matter was referred to the Authority by operation of s 473CA of the Migration Act for review. Two review decisions of the Authority were quashed by this Court for jurisdictional errors that were agreed between the parties to have occurred. In the third decision issued by the Authority, the subject of this application, the Authority did not accept the Applicant’s assertions that he had been assaulted and arrested in 2002, despite the fact that the Authority rejected the Applicant’s application to attend and give oral evidence.
As is hopefully apparent, it is the finding of the Delegate that accepted the Applicant’s account of arrest and torture in 2002, and the rejection of that account by the Authority in the decision under review that stands at the heart, so to speak, of Ground 1 in the Amended Application.
What the Applicant has actually said
The Applicant’s irregular maritime arrival entry interview, which took place in two interviews on 16 June and on 10 July 2013, is at CB 1 - 18. The Applicant responded to the interview questions as follows (CB 8-9):
32. Why did you leave your country of nationality (country of residence)?
Because of the respect to human rights here is better than Iran and here I can be, there is a freedom of expression here.
Q.Was there a specific incident or something that happened which made you decide to leave and come to Australia?
A. No
33. What do you think will happen to you if you return to your country of nationality (residence)?
Well they don't. Somebody returns home, the bearded authorities don't treat these people warmly and they treat them badly. They won't be able to hang me but my life will be more difficult than it was before.
[…]
38. Were you ever arrested or detained by the police or security organisations?
[The Applicant ticked the box, “yes”]
I was arrested by Basij - about 2002 - because I was carrying alcohol in my hand -1 was walking home and carrying two cans of beer and Basij arrested and they took me to their base and they beat me with a metal pipe and they broke my left hand. They sent me to the Police base then. I paid and by bribe I was released. I did not go to court. (Fingers on client's left hand have a deformity).
38a. Did the police and security or intelligence organisations impact on your day to day life in your home country?
[The Applicant ticked the box, “yes”]
Yes - Mainly Basijis - When we get arrested once by these Basijis then you get known in this suburb and always under their radar and they're looking for you and you are always under surveillance.
38b. Have you ever been arrested or detained and/or charged with any offences? (Explore whether detained by police/military/other organisations. Were there any charges? What were they? Length of imprisonment, outstanding warrants for arrest, issues whilst in custody)
I was arrested by Basij - about 2002 - because I was carrying alcohol in my hand -1 was walking home and carrying two cans of beer and Basij arrested and they took me to their base and they beat me with a metal pipe and they broke my left hand. They sent me to the Police base then. I paid and by bribe I was released. I did not go to court.
39. Were there any armed groups, political groups, or religious groups operating in the area you lived?
[The Applicant ticked the box, “yes”]
Yes - Mainly Basijis - When we get arrested once by these Basijis then you get known in this suburb and always under their radar and they're looking for you and you are always under surveillance. They are civilian clothed agents as well and the only way to recognise them is their beard.
Also - Other security forces are there.
The Applicant’s responses also noted that he had started arrangements for travel to Australia one year before leaving (CB 15):
69. When did you start arrangements for your travel to Australia?
One year before leaving
69a. What arrangements were made?
I started researching Australia.
My father arranged everything for me and I don't know how he found the agent - I think through a smugglers agent in [named place].
In response to question 73 (CB 17), as to the place and mode of arrival in the last country before he entered Australia relevantly the Applicant answered, “Passport – I had to pay a bride (sic) to have my passport stamped”.
The Applicant, as earlier indicated, was invited to apply for a SHEV and did so by an application which commences at CB 29. The relevant part of the application for these purposes is his accompanying statement which commences at CB 72. In dealing with the incident in 2002 the Applicant relevantly stated:
2.Approximately 2002, I was in the city ... and I bought 2 cans of Toburg Beer, and I was holding them in a plastic bag. I was walking home. Some Basij from two cars stopped me and 2 Basij got out asked me for ID. I showed them my ID. They asked me what was in my bag. I showed them. They hit me and kicked me. They immediately tied my hands together and blindfolded me. The Basij were wearing civilian clothes and had guns. They put me in the car. They drove to their base in the Mosque.
3.In the Mosque they took off my blindfold and tied my hands to a fixed metal staircase. They also tied my legs to the metal steps. Various Basij members they bashed me badly with a metal pipe. They bashed me everywhere, including my back, head, legs, arms, and hands. I was held in that position for hours, including the rest of the morning, all afternoon, and through the evening. I have many scars all over my body from this incident. I also have some thin parallel scars on my upper back and so I think they used something sharp to cut me too. There was other torture that night which I still can not talk about as it was traumatic.
4.After midnight, they moved me to the police station. I asked to call my brother and they let me. I called my brother asked him to come and help me. He came to the police station and I was released to my brother. I was at the police station a few hours but was released before the morning started. My brother told me that he paid a bribe to them of 1 million touman.
5.For 1 week I could not use the toilet because of the pain and the blood in my urine. My back was blackened from the torture. My father took a film at the time with the handycam, and when I was in Australia he sent it to me, however I have since lost it. I couldn’t go to hospital as I was scared of the authorities, and scared they would report me to the Basij.
6.I went back to work some months later, in [named place]. Since the incident I always made sure to avoid walking on the streets in Iran.
7.Once the Basij realised I was not in prison, the Basij came to search the house, but my father would say “he’s not living here anymore”. My father said this search in the house by the Basij happened twice within the first half a year after the incident. I was working and living at [a named place] at that time. After I heard about this incident, I stayed with my sister not my father when I was in [a named city].
8.Over the next two years approximately, 3 times, the Basij were in the area and caught my brother and took him to Basij base and tried to check my identity. He didn’t have ID on him, but my father brought the ID to the base, and the Basij let him go as it was not me. The Basij asked my brother where I was, and he said he is not living with us in our house.
The Applicant went on to say:
13.I can’t return to Iran now because I am still wanted by the Basij, and I think that the Basij will be able to identify me because I have left the country. They will still want to target me because of what I might say against them about what happened to me.
Having referred to difficulties arising as a result of his capture and torture by the Basij, the Applicant went on to say:
17.I was attacked by the Basij for breaking the morality rules by the Basij some years ago, but the Basij will never forget me. They still want me and I fear they would attack me again. I didn’t attend the Basij base or the Police station so have not complied with their orders. I have been in Australia, and they would assume I claimed asylum, and would want to punish me for these reasons too. The Basij will want to punish me for what they would think I have said.
Following an interview with the Delegate on 1 February 2018, the Refugee Advice and Casework Service (RACS) sent information in support of the Applicant’s claims for protection which are at CB 101-106. Relevantly the submission was made that the Applicant held “a well‑founded fear of being persecuted in Iran for the following essential and significant reasons”:
i)Social group as a person has been targeted by Basij in Iran in the past and is currently still wanted by the Iranian authorities; and
ii) Imputed political opinion as a person who is against the Iranian government and current regime because of the potential status as returned asylum seeker who has sought protection from Australia.
The RACS written submission referred to country information in support of the Applicant’s claims and engaged not only his claim to suffer persecution in Iran but also engaged the complementary protection provisions of s 36 (2)(aa)of the Migration Act. Paragraph 19 (CB 105) of the RACS written submissions assert:
19.The Applicant continues to hold the belief that the Basij who sexually assaulted him in a mosque Basij base would not want the public to discover their abuse of power and sexual transgressions. The desire to keep this information secret would compel them to abuse their powers further to find and locate the Applicant if he ever returned to Iran.
It will be necessary to come to what the Delegate made of the Applicant’s claims in more detail when considering the grounds of review. It is perhaps sufficient for the present purposes to repeat that the Delegate accepted the Applicant’s accounts of the events in 2002, but otherwise did not accept the Applicant’s claims and refused the application for a SHEV.
Following the referral of the matter to the Authority, RACS sent written submissions on behalf of the Applicant on 15 May 2018, which are at CB 143 and following. A further submission dated the same day commences at CB 147. The latter asserted four sources of persecution, described as being motivated by “the following essential and significant reasons”:
•[the Applicant’s] profile with the Basij and the Revolutionary Court arising out of his evasion of the Basij and the Revolutionary Court and his failure to comply with summonses issued by the Basij and the Revolutionary Court since his detention and physical and sexual abuse by the Basij in 2002;
•[the Applicant’s] profile as a failed asylum seeker returning from a Western country;
•[the Applicant’s] criminal record in Australia; and
•[the Applicant’s] heroin addiction.
The written submissions noted direct and indirect threats to the Applicant’s life or liberty amounting to serious harm and/or economic hardship that threatened his capacity to subsist, denied him capacity to earn a livelihood of any kind and/or persecution of the kind referred to by the High Court in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473, whereby he would be compelled to act discreetly and modify his appearance and profile to hide his identity and his drug addiction to avoid serious harm. The written submissions went on to press claims under s 36(2)(aa) of the Act under the complementary protection regime in the alternative.
Unsurprisingly, the written submissions referred to country information in support of the claims and went on to submit should the Applicant be returned to Iran (CB 152) he would have a cumulative profile on the basis of all the matters previously asserted, including his compromised capacity to make an income due to being wanted by the authorities which threatened his capacity to subsist.
The Applicant provided a further statement (CB 153). He sought to provide further information. He explained that he had received letters from the Revolutionary Court at least once per year asking him to hand himself in that in that court. At CB 153 he said:
6.The letters were sent to the local police station who then sent them to my father’s home. The local police were not issuing the summons or letters to me, they were sending them at the request of the Basij. The Basij put pressure on the Revolutionary Court to issue the letters requiring me to present to them. I have now obtained a copy of one of the letters I received.
7.Initially I was not aware that I needed to provide the letters with my application. During my interview, I was informed that I need to provide them. After the interview, I requested that my family locate the letters. My family had moved house and after they moved my parents were unable to find the letters I had been sent. My mother threw out most of the old letters during the move. It took them a few weeks to locate a letter and then they sent it to my friend’s address in Melbourne. It took a few weeks to arrive by mail.
8.I have now received the original copy of this letter, a certified copy of which is enclosed with this statement. It is issued by the Islamic Disciplinary Force and contains my name, the name of my father and my father’s address. The letter requires me to attend the Islamic Prosecution Office of [a named city and Branch number] Investigation, at 8.00am on 22/01/3092 (11 April 2013). The reason listed in the summons is “Carrying and possession of alcoholic drinks”. It is stamped and signed by the head of the police station, [branch number, place], and says that it was delivered by Private [name].
9.This is the same or similar to the other letters that I have been sent each year. There are more recent letters but my parents were not able to locate them and send them to me.
10.To apply for a passport in Iran, you complete an application through the passport office. It is not the local police station, it is an office called “Police Plus 10”. They are different to the local police, they are not active members of the police force. It is a separate institution. The security checks conducted by the passport office only relate to serious crimes such as murder or politcal crimes. I do not have any of these crimes on my record. The passport office only consults with local police about serious security issues in conducting these security checks. That is why I was able to obtain a passport despite my ongoing issues with the Revolutionary Court and the Basij.
11.The police clearances required for permanent employment are obtained through a different agency and are more thorough. In around 2010, I tried to obtain a police clearance for employment. I had to attend the Detective’s Agency in [named province]. I had to provide my fingerprints and my national identity card and provide a letter from my employer. They were supposed to send the police clearance to my employer. I never received this and when I called the Detective’s Agency they said information had come up on my file saying that I was wanted by the Revolutionary Court and Basij so I could not have the police clearance. The Detective’s Agency investigate more thoroughly into a person’s life than the passport office. They would have contacted the local police station and found more information about my file with the Revolutionary Court and the Basij. I was unable to obtain the employment I was seeking as a result. I do not know if the Basij contacted the Detective’s Agency about me because I did not take the job and so the Agency still had no information about my current whereabouts. I was never able to obtain permanent employment and had to constantly stay in different places to avoid the Basij.
The Applicant went on to refer to his drug addiction in Australia and likely difficulties that would give rise to in Iran, his criminal history in Australia for offences relating to drug use and stolen goods and finally noted that if he was imprisoned in Iran he would not be able to access mental health services.
As earlier noted, the Applicant’s claim was first considered by the Authority and rejected (although I do not read the decision at CB 164 and following as rejecting the Applicant’s claims as to the events of 2002 save as to the assertions of sexual assault (CB 170 at [18]).
The Applicant provided a further statement to the next Authority hearing in which (CB 187 and following) the Applicant relevantly sought to explain why he had not revealed the sexual assault before his interview with the Delegate and relevantly referred to recent posts on Facebook and Instagram commenting negatively about the Iranian government and the likely effects of these. He repeated his request, made and denied for the first Authority hearing, for a review in person.
The second Authority decision is at CB 194. This decision accepted the entirety of the Applicant’s version of the events in 2002 including his sexual assault (CB 201 at [24]). The decision however did not accept that he was of interest on an ongoing basis to the Basij and likewise rejected his claims more generally.
I have only traversed the previous two Authority decisions, which were not of course binding on the decision under review now, simply to emphasise that the Delegate, and the first two Authority decisions accepted the Applicant’s accounts of events in 2002, save that the first Authority decision did not accept his account of the rape with a bottle.
The Applicant’s submissions filed in support of the third assessment by the Authority, which is the one the subject of this application, are at CB 233 and following. The risk of significant harm was identified as for that arising from the Applicant’s:
·anti-government political views and his imputed religious views;
·profile with the Basij and the Revolutionary Court arising out of his evasion of the Basij and the Revolutionary Court and his failure to comply with the summonses issued by the Basij and Revolutionary Court since his detention and physical and sexual abuse by the Basij in 2002;
·profiles as a failed asylum seeker returning from a Western country;
·criminal record in Australia;
·heroin addiction and current methadone treatment.
The written submissions went on to set out in more detail the Applicant’s derogatory remarks on Facebook posts about the Iranian regime, referred to the Applicant’s clinical records, provided together with the submissions (which are very extensive) and the likely difficulties that that would encounter if he was refouled. The written submissions refer to the Applicant’s drug addiction and methadone treatment and difficulties in Iran in the event he would return as result of limited treatment facilities. The written submissions also referred to the risk of his being perceived to be a failed asylum seeker and his compromised capacity to earn a living.
The Applicant’s supporting statement is at CB 238-241 but in the context of the grounds of review, does not take the matter much further. He raised questions of a new relationship with a woman in Australia (CB 240). He expressly stated at [5] (CB 238):
5.I wish to be able to explain what I have said in this statement in person to the reviewer and request that I be given an opportunity to do so before a decision is made on the review of my application.
It will be obvious that the above recitation of the Applicant’s claims, while laborious, involves some elements of paraphrase and condensation. Nonetheless, it is I trust a sufficiently detailed history of the Applicant’s claims relevant to his grounds of application in this case to enable a considered deliberation.
GROUND 1
The Authority acted unreasonably in departing from the Delegate’s finding accepting that the Applicant had been sexually tortured without first inviting the Applicant to an interview
In the Applicant’s written submissions this ground was refined under the heading, “Ground 1: Unreasonable rejection of the applicant’s account without interviewing him”.
This necessarily brings us to what the Authority actually decided. The decision is at CB 437 and following. At [30] (CB 446) the Authority noted:
30.The applicant arrived in Australia by boat on 13 June 2013. He then had a Departmental IMA Arrival & Induction interview (hereafter the 2013 interview) which was conducted in two parts, with the first part on this interview conducted on 17 June 2013, and the second on 1 July 2013. The delegate has indicated to the IAA that there is no audio record available for the 17 June 2013 of the interview, but the delegate did have before him an audio record of the 1 July 2013 part of the recording, and he also had before him a written record which covers both parts of the interview.
The Authority’s decision traverses both the interview and the subsequent interview with the Delegate in some detail and noted at [65] (CB 455):
65.The delegate accepted the applicant’s claim that in approximately 2002 he was arrested by the Basij for possession of alcohol, and that the Basij then assaulted him before turning him over to the police, who released him after the payment of a bribe. The delegate considered that there were some minor inconsistencies between the information he put forward during the SHEV interview (compared to his written claims) but that he was largely consistent. Based on the applicant’s responses at interview, and also country information, the delegate accepted that the applicant was arrested, assaulted and tortured by the Basij in 2002 as claimed and then subsequently released by the police after a bribe was paid. But the delegate did not accept the applicant’s claim that he remained of interest to the Basij, or any other Iranian authority, following 2002.
The kernel of what the Authority had to say about the 2002 incident is at [106]-[110] (CB 468-470). While the Authority found at [106] that the Applicant’s claims about the 2002 incident were not implausible and that inconsistencies about his history of the matter were of a minor nature, it went on to express considerable doubts. This included at [107] a failure to provide any medical evidence that he had any injuries consistent with the incident; reference to medical evidence inconsistent with the alleged assault on his left hand [108]; the absence of reference in the medical records to flashbacks of his torture [109]. Paragraph 110 nonetheless said:
110.When all of the applicant’s evidence is considered as a whole it strongly suggests the applicant has (from the time of his arrival in Australia) taken aspects of his personal circumstances and embellished these in an attempt to present himself as a person who has suffered persecution, and who thereby should be considered a refugee. I note that the applicant has requested the opportunity to respond to any concerns about his evidence at an interview. But as has been discussed above, I consider that the applicant has had a reasonable opportunity to make his case, and that this includes offering evidence to substantiate his claims and also explanations for why aspects of such evidence are at odds with his claims. As noted already, it is not apparent from the evidence that the applicant’s visual presentation of his claims at interviews has ever been a significant factor with regard to the manner in which interviewers have or have not been impressed by his credibility; and while the applicant’s physical appearance is relevant with regard to his claims about injuries and health effects, I consider that the extensive IHMS evidence which is before me about these matters is a far better guide to this than would be my own observations. I do not see that there is a need to seek any further information from the applicant and I have not done so. Having had regard to the extensive evidence before me about these matters I do not accept that the applicant was subjected to physical and sexual abuse by the Basij in 2002. Moreover, and given how the applicant’s claims about this matter have unfolded, I am not satisfied that the applicant was even arrested in this regard.
The Applicant’s written submissions at [9] relevantly assert:
9.[…] Nevertheless, having observed the applicant giving evidence, the delegate found:
Based on his responses at interview and relevant country information, I accept that the applicant was arrested, assaulted and tortured by the Basij in 2002 (approximately) as claimed and then subsequently released by the police after a bribe was paid.
In both written and oral submissions the Applicant relied upon the decisions of the High Court in ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439 (ABT17) and a subsequent Federal Court decision of Kerr J in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CRK18 [2021] FCA 1070 (CRK18). Put shortly, it was submitted that the net effect of these decisions was that in circumstances where the delegate had made a favourable finding of credit and the Authority was disposed to make a contrary finding, there was an obligation on the Authority to provide the applicant with the oral hearing he had requested.
The submissions of the Minister involved a more detailed assessment of what was said to have taken place in ABT17 and an emphasis on observations of the plurality of the High Court in that case to which it will be necessary to turn. This brings us therefore to the High Court’s decision. The controversy that arose in that case was described in the headnote of the authorised report in the following terms:
A delegate of the Minister who had interviewed a fast track applicant in person found that the referred applicant’s evidence was plausible and broadly consistent with country information pertaining to the events which the referred applicant had described. The delegate refused the application for a protection visa based on other country information pertaining to an improvement in circumstances relating to Tamils in Sri Lanka since the referred applicant’s departure from that country. In the conduct of its review of the delegate’s decision, the Authority listened to an audio recording of the referred applicant’s interview with the delegate and, having found that the referred applicant’s evidence was generally lacking in detail and that at times he sounded vague and hesitant, departed from the delegate’s findings as to a central part of the account given by the referred applicant. The Authority affirmed the decision of the delegate.
The plurality of the High Court (Kiefel CJ, Bell, Gageler and Keane JJ) observed at [13]-[15]:
13.However, the potential for a record of an interview conducted in accordance with the Code of Procedure to take a variety of forms creates potential for an informational gap to arise in the review material where an interview with the referred applicant has been conducted by the delegate in person and has been audio recorded but not video recorded. Provision of the audio recording as part of the review material will then not put the Authority in the position of having and being able to examine for itself the totality of the information available to the delegate and required by the Code of Procedure to be considered by the delegate when making the referred decision. Missing from the review material will be a visual impression of how the referred applicant appeared during the interview - his or her demeanour.
14.An informational gap of that nature has potential to impact on the Authority's assessment of the credibility of the account given by the referred applicant during the audio recorded interview and in turn has potential to impact on the Authority's assessment of the referred applicant's overall credibility. "Impressions formed by a decision‑maker from the demeanour of an interviewee may be an important aspect of the information available to the decision‑maker." That has "long been recognised" ]and continues to be appreciated despite awareness on the part of sophisticated decision-makers that "an ounce of intrinsic merit or demerit" measured by reference to objectively established facts and the apparent logic of events "is worth pounds of demeanour".
15.The potential significance of demeanour is illustrated by the present case. Here, as will be seen, the Authority was troubled by a concern that the appellant's evidence in his audio recorded interview with the delegate was generally lacking detail and at times vague and hesitant. An interview was the obvious means by which the Authority might seek to resolve these matters of concern, given that the Authority was evidently not convinced by the country information alone to uphold the delegate's ultimate decision, however "plausible" the appellant's account of his personal circumstances might be. At an interview the Authority could seek answers in relation to those aspects of the appellant's evidence that troubled the Authority by raising questions which had not previously been raised with the appellant. The Authority could thus develop an informed impression of the credibility of the appellant based on his responses to such questions and an observation of his demeanour. The appellant's responses and the demeanour of the appellant inextricably associated with them would be new information relevant to his personal circumstances.
The plurality went on to assert at [20]-[25]:
20.Compliance with the implied condition of reasonableness in the performance by the Authority of its duty to review the decision of the delegate necessitates not only that the decision to which the Authority comes on the review has an "intelligible justification" but also that the Authority comes to that decision through an intelligible decision-making process. Thus, as has been recognised, there can be circumstances in which the Authority can transgress the bounds of reasonableness by treating particular information as the reason or part of the reason for the decision to which it comes without first exercising its powers to get and if appropriate to consider, as new information, further information capable of being provided by the referred applicant.
21.Answering the question therefore requires an examination of the decision-making pathways reasonably open to the Authority in reviewing the decision of a delegate to determine for itself whether the criteria for the grant of a protection visa have been met where the review material that it is obliged to consider in making that determination leaves out information that was available to and required to be considered by the delegate.
22.The mere existence of an informational gap will not necessarily result in the Authority being "disadvantaged in comparison with the delegate". That is because, having regard to country information and other information contained in the review material, the credibility of the referred applicant will not necessarily have a significant bearing on the Authority's determination of whether the criteria for the grant of a protection visa have been met. That is also because, having regard to country information and other information contained in the review material, how the referred applicant may have presented in the interview with the delegate will not necessarily have a significant bearing on such assessment of his or her credibility as the Authority might reasonably undertake.
23.To the extent that the credibility of the referred applicant might bear on whether the Authority is to be satisfied that the criteria for the grant of a protection visa have been met and to the extent that his or her appearance in an interview with the delegate might bear on his or her credibility, it would ordinarily be open to the Authority to form its own assessment of credibility taking into account such second-hand description or impression of his or her appearance as might be conveyed expressly or by implication in the statement forming part of the review material which sets out the delegate's findings of fact and refers to the evidence on which those findings were based. Taking into account any such description or impression of the referred applicant's appearance, it would ordinarily then be open to the Authority to reach an assessment of the referred applicant's credibility without any need for the Authority's assessment of credibility to coincide with the delegate's assessment of credibility.
24.The Minister is therefore correct to say that the Authority is not required to interview a referred applicant merely because credibility is in issue or merely because the Authority comes to a different view as to credibility than did the delegate.
25.However, the Authority will act unreasonably if, without good reason, it does not invite a referred applicant to an interview in order to gauge his or her demeanour for itself before it decides to reject an account given by the referred applicant in an audio recorded interview which the delegate accepted in making the referred decision wholly or substantially on the basis of its own assessment of the manner in which that account was given. That is what happened in this case.
At [29]-[30] the plurality continued:
29.Had the Authority acted reasonably in performing its duty to review the decision of the delegate cognisant of its informational disadvantage in assessing the credibility of the appellant when compared with the delegate, the Authority would not have rejected the appellant's account of having been detained and beaten and sexually tortured on the basis of how he sounded on the audio recording without inviting him to a further interview so as to see him as well as hear him. By failing to invite the appellant to a further interview, the Authority transgressed the reasonableness condition implied into both the imposition of its duty to conduct a review and the conferral of its powers to get and consider new information in conducting a review.
30.To be clear, the breach of the reasonableness condition by the Authority lay not in evaluating the review material for itself to arrive at a different assessment of credibility than did the delegate, but in failing in the circumstances to use the powers at its disposal to get and consider new information in order to supplement the review material so as to place itself in as good a position to assess credibility as had been the delegate.
The matter was subsequently considered by Kerr J in CRK18. In that case the delegate relevantly accepted, following an interview with the applicant, that the applicant had worked in a fish transport business and that his involvement in making deliveries to the Liberation Tigers of Tamil Eelam (LTTE) had imputed involvement with that organisation. The delegate went on however to note that the applicant had not had any high-level involvement in the LTTE and accordingly his profile would not be of interest to the Sri Lankan authorities. Justice Kerr noted that the trial judge (whose version Kerr J accepted) had observed at [12] that the Authority accepted some aspects of the applicant’s claims but noted “it did not accept that he transported fuel to the LTTE on behalf of his former employer”.
Having referred to the judgment of the plurality in ABT17, Kerr J went on to say at [36]-[37]:
36On the above analysis, this present case is one which has an informational gap of the type identified by the High Court. An audio recording was made. It should also be noted that the High Court did not, in the above analysis, place any apparent emphasis on the seeming lack of reliance by the delegate on considerations of demeanour. Further, the present case could also be regarded as a matter in which the IAA was not convinced by country information alone to uphold the delegate’s ultimate decision irrespective of the applicant’s plausibility. The IAA made no reference to country information when rejecting the applicant’s account relating to the fuel deliveries. It is apparent that it was the content and circumstances of the account itself that gave rise to the finding. The IAA finding was made on the basis of the applicant’s failure to raise the fuel delivery claim at his entry interview or in his written statement of claims and the consequent inconsistencies in the version he gave to the delegate. Further, it was made on the basis that his explanation of being frightened as the reason for not having raised the matters earlier given the amount time which had elapsed since his arrival in Australia, was not objectively plausible.
37In my view, it is significant that the High Court referred to “the potential significance of demeanour” when discussing the credibility findings made by the Authority which departed from the finding of plausibility made by the delegate. The potential significance will be an active consideration in any matter where the Authority parts from a credibility assessment made by the delegate in relation to a significant matter and not just a matter where the Authority specifically refers in its reasons to the demeanour of an applicant, having listened to an audio recording of the interview with the delegate. [...]
38[...] The IAA was operating with an informational gap of the kind identified by the High Court. An assessment of the demeanour of the applicant at an interview would have afforded the IAA the opportunity to make its own assessment and would have filled the gap. The demeanour of the applicant could have been particularly important when considering whether or not to reject his explanation of being frightened as the reason for not having made the fuel delivery claim at an earlier time. That is particularly so given the IAA rejected the explanation of his subjective fears by reasoning objectively about how persons in his situation would ordinarily behave. The failure to consider exercising the discretion in s 473DC was, in the circumstances of this matter, legally unreasonable. [...]
Having referred relevantly to the reasoning of the plurality in ABT17 at [22] (set out earlier) his Honour went on to say at [58]-[59]:
58In the present case it may or may not have been lawfully open to the IAA to have affirmed the Delegate’s decision on the simple basis that, accepting that the Respondent had conducted himself as the Delegate had found he had, but otherwise had not had any high level involvement with the LTTE and did not claim to have been involved in any separatist activities, he would not be at risk of persecution by the Sri Lankan authorities. In such a hypothetical instance the credibility of the referred applicant would not have had a significant bearing on the IAA’s determination of whether the criteria for the grant of a protection visa had been met. The condition referred to in [22] of the plurality’s reasons would be satisfied.
59However that was not the course adopted by the IAA. It never got to that point because, it had concluded on the basis of its own assessment of the Respondent’s want of credit, notwithstanding his truthfulness having been accepted by the Delegate, that he had lied about a previously unarticulated claim: it was a mere recent invention.
Unsurprisingly the written and oral submissions of the Minister concentrate upon the observations of the plurality at [22] in ABT17. A point of distinction was sought to be drawn between ABT17 and this case on the footing that (Minister’s submissions at [10]):
10.[...] unlike ABT17, no part of the Authority’s reasons here for rejecting the applicant’s account of having been sexually abused by the Basij in 2002 (the 2002 incident) were based on the Authority’s assessment as to the manner in which the applicant gave his evidence at the interview with delegate (as revealed by the audio recording).
Further, it was submitted [13] and [14] of the written submissions:
13.In this case, while the delegate accepted that the 2002 incident had occurred, the delegate did not accept the applicant’s claim to the effect that he had been “on the run” since then (CB 113-116). The Authority, like the delegate, did not accept the applicant’s claim to have been “on the run” since the 2002 incident, assuming that it occurred ([99]-[102]). The Authority only departed from the delegate by additionally finding that the 2002 incident had not, in any event, not occurred ([103]-[110]).
14.Accordingly, the credibility of the applicant’s evidence that the 2002 incident had occurred (and any “informational gap” as to visual observations of the applicant’s demeanour when giving the evidence of this claim) did not have a significant (or material) bearing on the Authority’s ultimate decision.[1]
[1] See also EAT17 [2022] FedCFamC2G 110, especially at [54] where [Judge] Ladhams held that while “there may be some form of informational gap in circumstances where the delegate was able to assess the demeanour of the applicant generally based on his visual appearance throughout the interview and the Authority was unable to do so from the audio recording of the interview”, “[t]his type of informational gap is far more general that the type of informational gap that arose in ABT17, where the delegate had the opportunity to assess the applicant’s demeanour when discussing a specific claim and the Authority did not”.
The written submissions also dealt with CRK18 and the Minister submitted at [11]:
11.Insofar as the decisions of this Court in CRK18 [2021] FCCA 267 (especially at [37]), and the Federal Court on appeal in CRK18 [2021] FCA 1070, held that it would be unreasonable for the Authority, notwithstanding absence of reliance by the Authority on the manner in which the applicant gave the evidence at the interview with the delegate (as revealed by the audio recording), to depart from a favourable finding of the delegate without interviewing the applicant in case his demeanour might impress the Authority, those decisions are, with respect, wrong.1 The Minister acknowledges, however, that if the Federal Court’s decision is properly understood as going that far, this Court is bound by it. (In which case, the Minister’s submission that the Federal Court’s decision is wrong is put formally.)
Consideration of Ground 1
Obviously I am bound by the decisions in ABT17 and CRK18. The question is what application they have in the circumstances of this case.
Despite the welter of material before the Court and the helpful submissions of Counsel, my conclusions about the ground can be expressed succinctly.
In this case it is common cause that the Delegate interviewed the Applicant and believed him as to his version of the events in 2002, including the more recently articulated assertion of sexual torture. As in ABT17, no express finding was made as to demeanour, but from the fact that he was believed, I accept that it must be inferred that the Delegate believed what the Applicant said.
Self-evidently the decision of the Authority must be read fairly and as a whole. There were a number of findings made by the Authority that might reasonably be thought to have sprung from the country information and materials more generally. The Authority accepted at [106] (CB 468) that the Applicant’s claims about the 2002 incident were not implausible but went on at [107] to challenge the Delegate’s findings on the footing that the Applicant had never provided any medical evidence to support his injuries. This matter had not been put so far as I can see to the Applicant and he had not had an opportunity to respond to it. Furthermore, the medical records upon which the Authority further relied to support its criticisms of the Applicant’s account of the 2002 incident were likewise not put to the Applicant for him to respond. The same goes for the asserted absence of evidence about flashbacks. The narrative of the Authority’s decision in my view when analysed fairly shows that the failure to believe the Applicant’s account of the 2002 incident was at least in part one of the reasons that the application was not granted. The decision simply cannot fairly be disaggregated in the way that the Minister has sought. Unlike the Delegate, who believed the Applicant’s accounts of the 2002 events but went on other grounds nonetheless to find the claim implausible, in the Authority’s decision the two streams, so to speak, are intermingled. This was not a case that engaged the exemption set up by Kerr J in CRK18 at [58]. In this case there was on any view of the matter an informational gap in that the Authority did not have the entirety of the audio recording and furthermore had not had the benefit of an interview with the Applicant. The Applicant had actively sought such an interview. In my opinion in all the in the circumstances the failure of the Authority to provide the applicant an opportunity to be observed and his responses assessed engage the error described by the plurality in ABT17. The decision was legally unreasonable as the plurality described. It follows that this ground is established
GROUND 2
The breach of s 473CB by the Secretary, in failing to provide the audio of the arrival interview to the IAA caused the review by the IAA to miscarry, or alternatively, the IAA’s reliance on summary notes of the arrival interview in the absence of audio or transcript was unreasonable or constituted a misunderstanding of the proper process
The particulars in support of this ground essentially complain that the failure to provide the audio recording breached s 473CB and, further or alternatively, the Authority acted unreasonably in treating the summary notes of the arrival interview as if it were an exhaustive transcript.
Insofar as the ground relies upon the failure to provide the audio recording of Part 1 of the Applicant’s arrival interview on 17 June 2013, which is said by the Applicant to be in contravention of s 473CB(1)(c) of the Migration Act, I accept the submissions of the Minister. The point can be readily rejected. The Secretary is required to provide “any other material that is in the Secretary’s possession or control…”. In oral submissions the Applicant’s counsel did assert that there was no evidence from the Minister to explain the non-availability of the recording (Transcript of hearing on 28 March 2022, page 21). Counsel for the Minister (correctly) pointed to CB 446 at [30] where “the delegate has indicated to the [Authority] that there is no audio record available for the 17 June 2013 ... interview...”. There is no evidence before the Court that this was in any sense anything other than because it was simply not available. There is no evidence to suggest that the Minister negligently or otherwise improperly failed to provide it.
The other part of the ground relates to an assertion that the Authority fell into error by treating the written record of the arrival interview as though it were an “exhaustive record”. It was put further at [22] of the Applicant’s written submissions that “the [Authority] in fact relied heavily on matters it perceived that the applicant omitted from the arrival interview, despite having no access to the audio recording or a transcript”.
What the Authority said at [100] (CB 466) in this regard was:
100.I note also, with regard to the applicant’s assertion that at the 2013 interview he did say that he was always on the run, that it is not apparent from the written record that he ever said this; and in fact such audio evidence as there is of the 2013 interview along with its written record (and I have no reason to doubt the accuracy of the written record) indicates that the applicant gave no indication at the 2013 interview that he was living anywhere other than in his parent’s home in [...] over the decade which preceded his departure from Iran. I note also, with regard to the question of whether the authorities impacted on his day-to-day life, that at 2013 interview had said that they did, and this was mainly the Basij because once you get arrested by the Basij you are on their radar and they are looking for you, and you are always under surveillance. But in contrast to what he had said during the 2013 interview about his 2002 arrest this in little more than a vague assertion and it was not at all apparent from this that the applicant specifically was under any surveillance, or that he was indicating that had had any actual incidents with the Basij following 2002 .
The Authority went on to say at [101]:
101.Again, given what he said about the 2002 incident at the 2013 interview, I find it difficult to believe that the applicant would have given no indication whatever of such specific matters as those he would later claim (about receiving letters/summonses, or for that matter about his brother’s being detained as a result of being mistaken for him, or the searching of his father’s home on two occasions such that he thereafter modified his living arrangements and the extent to which he walked on the street, or that he could only work three months at a time for reasons relating to a police clearance), if these matters had actually occurred. I consider that these concerns raise real doubts about these subsequent claims. The applicant’s assertion that at the 2013 interview he had not understood the necessity of providing such information, and that he did not know what was meant by an incident (or something in particular), is not persuasive. The question which was being put to the applicant at the 2013 interview (of whether there was a specific incident or something that happened which made him decide to leave) was not a complicated one, and the applicant has given no indication that there were any problems with the interpreting at the 2013 interview. The fact that he answered no to this question raises real doubts about his claims that after 2002 he was of interest to the Basij and/or the police and/or the courts (including his claim that for this reason he could not get a police clearance).
Read fairly as a whole, in my view, the decision of the Authority does not suggest that it impermissibly treated the record of interview as a transcript let alone an exhaustive one. I accept the submission of the Minister that the Authority’s reference to the failure of the Applicant to identify his having been on the run at his first interview, as not recorded in either the oral recording of the second of interview or in the notes that were taken of both, is simply an accurate statement as to the state of the evidence.
Similarly, I reject the assertion that the Authority’s approach shows a lack of understanding of the nature of the arrival interview. It is clear from what Full Federal Court had to say in DWA17 v Minister for Immigration and Border Protection [2019] FCAFC 160 that the caution expressed in MZJJO v Minister for Immigration and Border Protection (2014) 239 FCR 436 was just that and no more.
In my opinion this ground is not made out.
GROUND 3
The reliance of the [Authority] on supposed omissions from the International Health and Medical Services (‘IHMS’) records was unreasonable and/or constituted a misunderstanding of the task on review
The particulars to this ground are twofold. It is asserted that the Authority’s inference that matters unrelated to medical treatment would be contained in the IHMS records and that their omission cast doubt on the truth of those matters was irrational or unreasonable. It is asserted secondly that the Authority’s misunderstanding of the purpose and scope of IHMS records caused it to misconceive its task on review.
More particularly complaint is made [39] and [40] of the Applicant’s written submissions as follows:
39.At [89] of the decision record, the [Authority] referred to the lack of any mention of problems his brother or father were having in Iran as a basis for disbelieving that those events had occurred. It found:
while the applicant’s IHMS notes record many instances in which the applicant discussed the circumstances of his family and his communications with them, he never expressed any concerns that his activities in Australia had caused his brother or father any problems of this kind.
40.Similarly, at [92], the [Authority] used the omission of the matter from IHMS notes to disbelieve a claim made by the applicant. In response to the applicant’s claims that he made certain social media comments because he found it therapeutic, the [Authority] found:
but I note that in the extensive information before me in the IHMS notes about the various treatments and activities which the applicant has found helpful to his health, there is no record of the applicant’s ever having ever indicated that he found internet activity of this kind therapeutic.
The written submissions went on to assert that in acting on the reports in that way the Authority misunderstood the purpose of the notes which were:
...self-evidently to record the interactions between the applicant and IHMS staff for the purpose of seeking and receiving medical treatment. They do not purport to be a verbatim record of all conversations between the IHMS staff and a detainee, nor do they have any role in establishing an applicant’s claims for protection.
This matter can be dealt with relatively shortly, as indeed it was in the written submissions of the Minister. In my opinion the Applicant put the IHMS records before the Authority as part of his case. The Authority was entitled to look at that material which is extensive and covers a not inconsiderable period of time. In evaluating whether or not the Applicant was making good some of his assertions, the Authority was properly able to consider the IHMS records and to note absences of the sort identified. I accept the written submission of the Minister at [35]:
35.These findings were open to the Authority, and it was also open to the Authority to accord some forensic significance to them in the particular circumstances of the case. (Plainly, absence of information in the IHMS records was not the sole basis of the Authority’s failure to be satisfied that the applicant had engaged in online conduct otherwise than for the purpose of strengthening his claim to be a refugee: see [98].)
It should be noted that the Authority traversed the matter of the Applicant’s material critical of the reigning government at [87]-[88] (CB 462-463) and later at [90]-[92] (CB 463-464). The Authority was, in my view, understandably in the circumstances, sceptical of the timing of the such activities by the Applicant and found, in a fashion that seems to me to have been open to it on the evidence as a whole, that the Applicant “has not satisfied me that he engaged in the above online conduct otherwise than for the purpose of strengthening his claim to be a refugee” at [98]. This ground is not made out.
GROUND 4
The [Authority’s] consideration of the Applicant’s claim to face a real risk of significant harm as a consequence of his drug addiction constituted jurisdictional harm on multiple bases.
Particulars
(a) The [Authority] erred in its approach to the real risk test in relation to the risk of the Applicant facing the death penalty.
(b) The [Authority’s] finding that methadone treatment would be available in the Applicant’s home area was irrational or went well beyond the evidence before the [Authority].
(c) The [Authority] failed to consider whether the Applicant faced a real risk of significant harm in an Iranian rehabilitation centre.
Insofar as the written submissions of the Applicant dealt with the risk of the death penalty the complaint is essentially that set out at [46]:
46.That purely statistical assessment is an impermissible approach to the real risk test. Indeed, given that Iran has one of the highest rates of executions in the world, if a statistical approach to the likelihood of the death penalty finding that “only” 253 executions in a year meant that the risk was not a real one was permissible, it is difficult to see how a real risk of significant harm in the form of the death penalty could ever be made out.
What the Authority relevantly said, having noted Iran “has very progressive policies towards drug addiction” and associated matters at [114], went on to say at [115] (CB 471):
115.It is true that in Iran efforts to combat drug trafficking have traditionally focused on executing drug smugglers and making large-scale seizures but such actions have largely failed to deter the drug trade, and that around 80 percent of executions in Iran have been death penalty verdicts related to drug trafficking, but and amendments to the drug trafficking law have seen execution rates of drug traffickers decrease in recent years. While Iran does not publish statistics on this, Amnesty International estimates that that over 2017 to 2018 executions in Iran feel from 507 to 253, which suggests a very low level of risk of such harm with regard to the number of persons in Iran estimated to be addicted to drugs (between 2.8 million and 3.6 million).[2] I note also that in previous years it has been reported that street addicts and/or addicts’ hangouts have been attacked by police with such persons being placed in mandatory rehabilitation camps where conditions were poor.[3] However, it would appear that such occurrences are currently infrequent, as in April 2020 DFAT reported that NGOs report that police do not generally victimise or harass drug addicts, but occasionally receive orders to round them up.[4]
[2] DFAT, "DFAT Country Information Report: Iran", 14 April 2020, 20200414083132; UN General Assembly, "Situation of human rights in the Islamic Republic of Iran", A/71/374, 6 September 2016.
[3] "Tehran tries to make its addicts go to rehab", Al Monitor, 22 October 2015, CXBD6A0DE14945.
[4] DFAT, "DFAT Country Information Report: Iran", 14 April 2020, 20200414083132.
Read fairly and as a whole it seems to me that the Authority was doing the best it could to evaluate the Applicant’s risk of facing the death penalty in the light of country information available to it and permissible for it to be relied upon. As I would construe, at [115] the Authority was of the view that the death penalty was more likely reserved for persons actually trafficking drugs (and there is no suggestion the Applicant was a trafficker) and that in any event the overall numbers compared to users as a whole are so small that the risk was low. I accept the submission of the Minister that this was a line of reasoning opening open to the Authority. I also accept the submission of the Minister that the DFAT report to which the Applicant pays regard is not a matter for the Court to evaluate because the choice of country information was very much a matter for the Authority.
The next sub particular relates the availability of methadone treatment. The Authority’s finding at [116] was:
116.The IHMS notes indicate that the applicant has sometimes smoked methamphetamine (ice or crystal meth) while in immigration detention but he has also indicated that he was using this to help him prevent his problems in immigration detention. The IHMS notes indicate that on 12 March 2021 his methadone dose was at 65mgs and given the extent to which the applicant’s dosage has gone up-and-down over recent years it is (notwithstanding the fact that the applicant been receiving this treatment now for more than two years, and notwithstanding that he plainly aims to overcome his heroin addiction and wean off methadone) apparent that he may still be affected by heroin addiction were he to return to Iran in the foreseeable future. Nevertheless, given that the evidence indicates that applicant wants to overcome his addiction to such drugs (with the IHMS notes indicating that his family are a protective factor for him, and that he does not want his family to discover his drug use), and given that methadone treatment would appear to be countrywide in Iran, and given how in Iranian government-provided insurance pays for treatment for drug addiction, the possibility that the applicant would begin to engage in illicit drug use in Iran is too speculative. Moreover, and even if this did occur, the possibility that the applicant would come to any harm is (noting that NGOs report that police do not generally victimise or harass drug addicts) remote, as is the possibility that this would somehow raise the level of risk he would face with regard to alcohol consumption or in some other regard.
Those findings followed references in [114] to DFAT reports which indicated substantial availability of drug addiction treatment in Iran and in my opinion the Authority’s conclusions in this regard do not give rise to impermissible error or indeed any error at all.
Risk of harm at rehabilitation clinic
The Applicant’s written submissions at [52]-[57] traverse this sub-ground. It is put that the Authority failed to consider whether the treatment provided in the rehabilitation clinics would itself constitute significant harm within the meaning of s 36 (2A) of the Act. Reference is made to the Delegate’s decision record as to the difficulties faced in these clinics.
The Applicant is right to assert that the Delegate had referred in unfavourable terms to treatment of patients in some government run rehabilitation centres at CB 124. At CB 125 however the Delegate said:
Whilst I note that there appears to have been some criticism regarding aspects of the treatment available to drug addicts in Iran, the above cited country information indicates that a range of drug addiction facilities and services are available to the applicant. The applicant is an Iranian citizen; therefore there is no reason to consider that he would not be able to access these services to a level available to other Iranian citizens and adequate for his specific needs if he returned to Iran.
Based on the available country information in relation to drug addiction services in Iran, I consider that if the applicant returns to Iran he would be able to access adequate treatment for drug addiction.
That finding itself followed recitation of the availability of treatment in Iran set out at CB 123-124 and in my view is the delegate’s finding was well open on the materials.
In the light of the delegate’s finding and the materials available to the Authority, the finding at [115] set out above was in my view both properly open to the Authority and sufficiently dealt with the applicant’s case on this point.
CONCLUSION
As earlier indicated, in my opinion Ground 1 of the Applicant’s Amended Application has been made out. It has not been suggested in written or oral submissions that if this ground is established that the Applicant is not entitled to relief. There will be orders as sought in the Amended Application.
I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment of Her Honour Judge C.E. Kirton KC. Associate:
Dated: 23 March 2023
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