DFP19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2023] FedCFamC2G 313
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DFP19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FedCFamC2G 313
File number(s): MLG 2753 of 2019 Judgment of: DEPUTY CHIEF JUDGE MERCURI Date of judgment: 27 April 2023 Catchwords: MIGRATION LAW – application for judicial review – decision of the Immigration Assessment Authority – Safe Haven Enterprise (Subclass 790) visa – where the applicant claimed to fear harm on the basis that he had evaded compulsory military service in Iran due to political views – consideration of whether Authority’s conclusion that the applicant was exempted from military service on health grounds lacked an evidentiary foundation and rational basis and was legally unreasonable – finding that Authority’s findings were reasonably open on the evidence available before it – where finding challenged by the applicant was not central to Authority’s conclusion that applicant did not face risk of harm on return – no jurisdictional error established – application dismissed with costs. Legislation: Migration Act 1958 (Cth), s 57 Cases cited: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
BZC17 v Minister for Immigration and Border Protection [2018] FCA 902
Minister for Immigration and Ethnic Affairs v Wu Shan Liang 185 CLR 259
Division: Division 2 General Federal Law Number of paragraphs: 56 Date of last submission/s: 25 January 2023 Date of hearing: 25 January 2023 Place: Melbourne Counsel for the Applicant: Ms F Batten Solicitor for the Applicant: Victoria Legal Aid Counsel for the First Respondent: Ms D Gang Solicitor for the Respondents: Australian Government Solicitor ORDERS
MLG 2753 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DFP19
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:
27 April 2023
THE COURT ORDERS THAT:
1.The applicant’s amended application filed on 3 January 2023 be dismissed.
2.The applicant pay the first respondent’s costs fixed in the sum of $7,300.
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
This is an application for judicial review of a decision of the Immigration Assessment Authority (‘the Authority’) made on 4 June 2019. By its decision, the Authority affirmed a decision of a delegate of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (‘the Minister’), made on 9 April 2019, to refuse the applicant a Safe Haven Enterprise (Subclass 790) visa (‘SHEV’).
BACKGROUND
The applicant is an Iranian citizen who arrived in Australia on 6 August 2013 as an unauthorised maritime arrival.[1] As such, the applicant was a ‘fast track applicant’ within the meaning of section 5(1) of the Migration Act 1958 (Cth) (‘the Act’).
[1] Court book at page 92.
On 31 October 2014, the applicant participated in an entry interview,[2] in which he outlined, in summary form, his claims for protection. In sum, the applicant claimed to fear harm from the authorities in Iran on various grounds. Relevantly, for present purposes, he claimed to fear harm on the basis that he had evaded compulsory military service in Iran.[3]
[2] Court book at pages 9 to 23.
[3] See Court book at page 19.
Application for SHEV on 30 June 2017
On 30 June 2017, the applicant applied for a SHEV which included a statement dated 29 June 2017, again in summary form, of his claims for protection.[4]
[4] See Court book at pages 91 to 94.
On 6 December 2018, the applicant attended a protection visa interview with the Minister’s delegate. He was accompanied at that interview by his migration agent.[5]
[5] Court book at page 146.
On 17 December 2018, the Department wrote to the applicant (via his migration agent) inviting him to comment on various issues pursuant to section 57 of the Act.[6] On 7 January 2019, the applicant provided a submission in response via his migration agent.[7]
[6] Court book at pages 167 to 170.
[7] Court book at pages 180 to 194.
By letter dated 12 February 2019, the Minister’s delegate requested further information,[8] which the applicant provided by letter dated 6 March 2019.[9]
[8] Court book at pages 201 to 203.
[9] Court book at pages 212 to 214.
On 9 April 2019, the Minister’s delegate refused the applicant’s application for a SHEV.[10]
[10] Court book at pages 216 and following.
Referral to Authority on 12 April 2019
On 12 April 2019, the delegate’s decision was referred to the Authority.[11]
[11] Court book at pages 242 to 243.
On 3 May 2019, the applicant’s migration agent provided a further written submission to the Authority.[12]
[12] Court book at pages 261 to 264.
Ultimately, on 4 June 2019, the Authority affirmed the delegate’s decision to refuse the applicant’s application for a SHEV.[13]
[13] Court book at pages 270 to 279.
GROUND OF REVIEW
The applicant’s application for extension of time in this court was granted by consent on 28 May 2020.[14] This application therefore concerns the applicant’s substantive application for judicial review.
[14] Orders of Registrar Carlton dated 28 May 2020.
In his amended initiating application filed on 3 January 2023, the applicant raises only one ground of review, namely:
1.The Authority’s conclusion that the Applicant was exempted from military service on health grounds (CB 274 [14]) lacked an evidentiary foundation and rational basis and was legally unreasonable.
It is not in dispute that the applicant was diagnosed with Familial Mediterranean Fever (‘FMF’) after he arrived in Australia. The applicant has consistently maintained that he only suffered the symptoms of that condition after he left Iran and on his arrival on Christmas Island.
Ultimately, the Authority did not accept this to be the case. Relevantly, at paragraph [11] of the Authority’s decision record, the Authority noted, by reference to a report entitled ‘Familial Mediterranean Fever in Iran – A report from FMF Registration Center’ that ‘the symptoms emerge by age 20 but eighty percent of sufferers experience symptoms by age 10’. Whilst the Authority accepted that it was possible that the applicant had not had a formal diagnosis of FMF prior to his arrival in Australia, it did not accept that he suffered no symptoms prior to his arrival in Australia.
The Authority then referred to the applicant’s own evidence about his ability (or lack thereof) to work after he completed high school until he left Iran, being a period of some 11 years.[15] The applicant’s own evidence was that during this period he had only worked for about six months in total. Relevantly, the Authority said:
11.… I consider his inability to work due to being not physically well enough is evidence he suffered serious health issues in Iran. I consider it is likely those health issues were related to his FMF. Certainly he has not disclosed any other physical condition that would account for him being unfit for employment for 11 years. In the absence of any medical evidence or claim otherwise, I consider he had been afflicted with FMF since at least his teens.
[15] Authority decision record dated 4 June 2019 at paragraph [11].
It is against these findings that the Authority then went on at paragraph [12] to discuss the applicant’s claim to fear harm if he were to return to Iran on the basis of him having evaded military service. It properly identified the applicant’s claim that he didn’t complete military service as he was opposed to violence and did not wish to work for the regime. The Authority noted that in Iran, military service was compulsory and conscientious objectors were not recognised. The Authority went on to say, by reference to country information:
12.… Exemptions can be granted on several grounds however, including medical reasons, being the only son in a family, having elderly parents, and having a brother currently serving. It is also possible to purchase an exemption by paying an absence fine. DFAT reports this practice is common.
The Authority went on at paragraph [13] to consider the applicant’s evidence and noted:
13.The applicant was age 30 when he came to Australia and claims he never completed military service, but nor did he seek an exemption. I note the applicant lived at the same address his whole life in Iran. He was not hiding. He claims to have avoided the authorities by never working, so that he was never checked and found out for not doing the service. However, he has also given other reasons for not working, primarily his health problems but also that he stayed home with his widowed mother. He has also disclosed occasions when he did come in contact with the state: being found by the police with alcohol as a young man, and the few occasions he says the Basij came to his house, when they discovered his brother had alcohol there. He claims the Basij suspected he too consumed or kept the alcohol they accused his brother of. I consider that if the Basij were investigating his household for possible infringements concerning alcohol, they would have noted there was a young man there who had not completed military service. (emphasis added)
It is in the context of this analysis and these findings that the Authority went on at paragraph [14] to accept that the applicant had not completed military service, but reject the applicant’s claim that he evaded that service. Rather, having regard to his now diagnosed condition, his own evidence about his inability to work (other than on a very limited basis) in the 11 years between completing school and leaving Iran and the various interactions that he had with the authorities during that time, together with the fact that the applicant did not claim to have suffered any harm or consequence as a result of not having completed his military service, the Authority concluded that the applicant did not need to complete his military service as he had been exempted from doing so on health grounds.
It is this finding that is at the heart of the applicant’s challenge before this court.
The applicant submits that there was no evidentiary basis for this finding.[16] In particular, it was submitted for the applicant that in concluding that the applicant ‘suffered serious health issues in Iran’, the Authority incorrectly relied upon the applicant’s ‘purported’ ‘inability to work due to being not physically well enough’.[17]
[16] Applicant’s Outline of Submissions filed on 3 January 2023 at paragraph [19].
[17] Applicant’s Outline of Submissions filed on 3 January 2023 at paragraph [21].
The applicant submits that this does not accurately reflect the evidence he gave.[18] The applicant says that he did not give evidence that he was not physically well enough to work. The applicant therefore submits that in making the finding that the applicant was physically unable to work, the Authority made a critical finding without probative evidence.[19]
[18] Applicant’s Outline of Submissions filed on 3 January 2023 at paragraph [12].
[19] Applicant’s Outline of Submissions filed on 3 January 2023 at paragraphs [23] and [24].
Moreover, the applicant says that the Authority’s reasoning rested on speculation that the country information referred to in paragraph [11] of the Authority’s reasons, and referred to above, applied specifically to the applicant.[20] Importantly, it was submitted for the applicant that there was no evidence before the Authority that all people who suffer from FMF experience symptoms by the age of 20 or that having FMF precludes someone from working. Moreover, it was submitted that there was no evidence that all FMF sufferers experience the same symptoms or the same severity of symptoms.
[20] Applicant’s Outline of Submissions filed on 3 January 2023 at paragraph [25].
The applicant also submits that the only evidence as to the applicant’s health issues in Iran was his evidence that he had had his appendix removed.[21] Moreover, the applicant says that there was no evidence before the Authority about the applicant’s health issues or how those health issues affected the applicant’s ability to work. Rather, the Authority engaged in mere speculation on these issues. It is therefore submitted that in the absence of any probative evidence, the Authority’s findings were no more than mere speculation and therefore lacked a rational basis and or were legally unreasonable.[22]
[21] Applicant’s Outline of Submissions filed on 3 January 2023 at paragraph [25(2)].
[22] Applicant’s Outline of Submissions filed on 3 January 2023 at paragraph [26].
It is well-settled that if a decision maker makes a finding in circumstances where that finding is a critical step in the ultimate conclusion, and there is no evidence to support that finding, then that could constitute a jurisdictional error. As noted in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 per Deane J:
When the process of decision-making need not be and is not disclosed, there will be a discernible breach of such a duty if a decision of fact is unsupported by probative material. When the process of decision-making is disclosed, there will be a discernible breach of the duty if findings of fact upon which a decision is based are unsupported by probative material and if inferences of fact upon which such a decision is based cannot reasonably be drawn from such findings of fact.[23]
[23] Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 367.
In BZC17 v Minister for Immigration and Border Protection [2018] FCA 902 (‘BZC17’), her Honour Mortimer J, as she was then known, said at paragraph [89]:
89.One way in which reasoning in a decision may be said to be irrational or illogical, is if it is unsupported by probative evidence. That is because rational and logical reasoning, in order to form the requisite state of satisfaction required by provisions such as s 65 of the Migration Act, needs to be based not only on actual factual material or information, but on factual material or information which is probative of the finding or conclusion reached. That is, factual material or information which tends to make out, or support, the finding or conclusion reached. There must be a rational connection between the factual information or material and the finding or conclusion reached.
Her Honour went on to conclude that the Authority’s findings in that case were nothing more than mere speculation and were not based on any probative material at all. Consequently, she found that the Authority’s findings were irrational or illogical.
In BZC17, one of the issues was the Authority’s conclusion that the applicant had ‘relatives and tribal connections in Basra and that his relatives and members of his tribe would, if required, act as sponsors and provide assistance or other support to him in Basra on his return to Iraq’.[24] This finding was made in the context of considering the reasonableness of possible relocation within Iraq, to a place other than Baghdad. Relevantly, in BZC17, Mortimer J said:
96.The only information the Authority identified about the appellant’s support in Basra was what assistance had been given to the appellant in 2008, when his uncles contributed to his travel costs when he moved to Syria, together with the fact that he saw his tribe and father’s family at his father’s funeral and wake in Basra. Those events occurred more than eight years before the Authority’s decision.
97.The Authority does not refer to any evidence, and there does not appear to have been any evidence before it, about which, if any, members of the appellant’s family still lived in Basra. The reference by the Authority in [90] to “he said people from his father's tribe used to visit his home in Baghdad when he was a child” was not probative of the matter the Authority had to decide. As a statement it provides no factual information about where the appellant's “tribe” came from when they visited his father's home in Baghdad, and it certainly provides no indication of whether those people are still alive, let alone where they are or whether they are willing and able to support the appellant if he were returned to Basra.
98.There was no evidence of what family relationships existed, whether they were close or remote, acrimonious or convivial. There was no evidence whether his uncles, for example, were still alive and living in Basra. There was no evidence from which it could be inferred that any of the appellant’s family in Basra were willing and able to act as sponsors for him, or to provide him with any financial assistance. There was no evidence at all about the financial circumstances of any of his family living in Basra. In contrast, there was evidence that his father and brother had been dead for more than eight years, that his mother and two sisters lived in Baghdad and that he was the last remaining male member of his immediate family.
[24] BZC17 v Minister for Immigration and Border Protection [2018] FCA 902 at [6] and [77].
It was in this context that her Honour went on to conclude that the Authority’s findings at paragraph [91], in that case, were no more than mere speculation.
The applicant in the present case submits that a similar reasoning applies.[25] For the following reasons, I do not agree.
[25] Applicant’s Outline of Submissions filed on 3 January 2023 at paragraph [26].
It is common ground that the applicant had consistently maintained that he had not done military service in Iran and that the reason for this was because he was effectively a conscientious objector.
As stated, the applicant says that critical to the Authority’s reasoning was its view that the applicant had given evidence that he was not physically well enough to work whilst in Iran. The applicant maintains that he did not give this evidence. In support of this submission, the applicant relies upon the affidavit of Mr Walid Babakarkhil, annexed to which is a transcript of the applicant’s protection visa interview held on 6 December 2018.[26] Relevantly, at page 17 and following of that transcript, the following exchange is recorded:
[26] Affidavit of Mr Walid Babakarkhil affirmed on 28 December 2022 and filed on 3 January 2023 at Annexure WB-1.
Q79. Did you try and get a job?
A No
Q80 Why not?
A My (indistinct) condition, not suitable for work. This is a situation that I’ve been since 17, 18 years old. I’m not strong enough to go to work.[27]
[27] Mr Babakarkhil attests to the fact that having listened to the audio of this interview, the applicant in fact said ‘My physical condition is not suitable for working …’: Affidavit of Mr Walid Babakarkhil affirmed on 28 December 2022 and filed on 3 January 2023 at paragraph [8].
…
Q83.Okay. … Your condition – so that’s the Mediterranean fever you were talking about, is that right?
A No, this is what I got here.
Q84.So the condition that you had in Iran that stopped you from working, what was that?
AI’m not that strong of a person to be able to go out and work in construction or something like that. I also don’t like to get someone else ordering me, commanding me to do this or the other one just for the sake of money.
Q85.But when you said that your condition started when you were 17 or 18 – so is that a medical condition?
ANo, my father passed away and I sort of felt like I am depressed and I would not basically to working – I was not thinking about working, also my mum being alone. Also because my mum wasn’t feeling well, I was helping her.
…
Q183. Did you suffer from any other medical conditions, in Iran?
A Only that my appendix removed once.
Q814. So in Iran you were physically fit and healthy?
A I didn’t have any problems. …
As noted in the applicant’s submissions to this court, the delegate raised concerns about this evidence with the applicant in correspondence sent pursuant to section 57 of the Act on 17 December 2018, in which the applicant was invited to comment on adverse information.[28] Relevantly, the delegate’s letter stated:
Departmental records also reflect that in your Arrival interview (16 September 2013) you claimed to have had a stomach infection, six weeks following your arrival. Given the proximity to your arrival, this suggests your Mediterranean Fever may have already been an issue prior to departing Iran. I note this information is not necessarily inconsistent with your claim, made at your PV interview, that your symptoms for Mediterranean Fever did not arise before your arrival on Christmas Island and that you were medically healthy prior to your departure from Iran. However, in combination with testimony provided by you in your SHEV application, at PV interview, and country information, this information may lead me to adversely assess the credibility of your claim to have not been affected by Mediterranean Fever prior to coming to Australia and your claim to have been avoiding conscription and not having been medically exempted. Adverse findings regarding your claims to not have had mediterranean fever and/or not to have been actively evading military service may consequently lead me to consider your claim to have fled Iran for fear of completing your military service and your fear of returning to Iran for fear of completing your military service, not to be credible.
I invite you to comment on the above information. (emphasis added)
[28] Court book at pages 167 to 170.
It is apparent from this correspondence that the applicant was on notice of concerns held by the delegate about whether the applicant had evaded military service due to his political views or whether he had been medically exempted from participating in military service.
In the applicant’s response to this request on 7 January 2019, the applicant addresses this issue and specifically addresses the delegate’s concerns about whether he had experienced the onset of symptoms from FMF prior to his departure from Iran.[29] The applicant, however, does not address the concern as to the reason for his non-participation in military service, and in particular, whether it was due to a medical exemption or whether, as claimed, it was due to his conscientious objection. Relevantly, at paragraph [20] of his written submission to the delegate, the applicant’s representative states:
20.… The evidence coming from (the applicant) is that in Iran he was healthy and had no problems and soon after his arrival to Australia he started to experience health issues. We submit this evidence has been consistently retold by (the applicant) through his engagement with the Department. In addition, it is unreasonable to base a finding on how long after arriving to Australia the Delegate believes (the applicant) should have started experiencing Mediterranean fever without objective medical evidence to confirm the Delegate’s speculation. It is our submission that it would be an error of the Department to infer an unreasonable speculation based on what the Department officer believes the events should have unfolded.[30]
[29] See Court book at page 184.
[30] Court book at page 184.
The applicant therefore says that there was no evidence to support the conclusion reached by the Authority that the applicant had suffered from FMF prior to leaving Iran, or that even if he did, that this precluded him from working and/or from undertaking military service. It is submitted that the Authority’s conclusion in this regard was no more than mere speculation and not based on any probative evidence.
For the following reasons, I do not agree.
The relevant issue before the Authority was the applicant’s claim to fear harm if he were to return to Iran on the basis, among other things, of his status as a person who had evaded compulsory military service. The evidence before the Authority was as follows:
(a)in the 11 year period prior to departing Iran, the applicant had not worked at all, other than for a total of about six months;[31]
(b)the applicant was able to continue residing at the same home address throughout that period and did not come to the attention of the authorities regarding his failure to complete compulsory military service, notwithstanding that the authorities had apparently arrested his brother for possession of alcohol;[32]
(c)on his arrival in Australia, the applicant was diagnosed with FMF, a genetic autoimmune disease the symptoms of which, according to information before the Authority, generally manifests at some stage between the age of 10 and 20 years;[33]
(d)when asked why he had not been gainfully employed for the 11 years prior to his departure from Iran, the applicant himself gave evidence that:
(i)he was not ‘physically strong’ enough for construction work or the like;
(ii)after his father died, when he was around 17 or 18 years of age, he was depressed and could not think about working; and
(iii)he was helping his mother who was unwell.
[31] Authority decision record dated 4 June 2019 at paragraph [11].
[32] Authority decision record dated 4 June 2019 at paragraph [13].
[33] Authority decision record dated 4 June 2019 at paragraph [11].
The Authority found at paragraph [14] that the applicant had been ‘exempted’ on medical grounds from military service and therefore was not required to complete military service and would not face fear of harm on his return on this basis. At the heart of the Authority’s conclusions in relation to the applicant’s military service is a finding that the applicant had not evaded military service as claimed, but rather, that he was not required to undertake it. This finding was open on the basis of the evidence that the applicant himself gave about his health whilst in Iran, but more importantly, on the basis of the applicant’s own evidence that he had managed to live freely in the same house for over 12 years without being pursued in any way for his failure to undertake military service. Having regard to all these factors, it was reasonably open to the Authority to therefore conclude that the applicant was not evading military service as claimed, but rather was not required to undertake it.
Having regard to the totality of the evidence, most of which came from the applicant himself, that finding was reasonably open to the Authority. As outlined above, the applicant said that he was not strong enough to work, the applicant confirmed that he had remained living in the same house throughout the relevant period and was not hiding, and importantly, the applicant’s own evidence was that the authorities had come to his home and arrested his brother for having had alcohol in his possession. It was open to the Authority to infer that had the applicant been of interest to the authorities because he was evading military service, they would have sought him out at some point over the 11 year period prior to his departure from Iran. In these circumstances, it was open to the Authority to reject the applicant’s suggestion that he was of interest to the authorities because he had evaded military service due to his conscientious objections.
It is also clear from a fair reading of the Authority’s reasons, in the sense discussed in Wu Shan Liang,[34] that the issue of whether the applicant had been exempted on medical grounds was not central to the ultimate conclusion reached by the Authority, that is, that the applicant did not face a risk of harm on his return as a result of his failure to undertake military service.
[34] Minister for Immigration and Ethnic Affairs v Wu Shan Liang 185 CLR 259 (‘Wu Shan Liang’).
At various points in the protection visa interview, the applicant was put on notice that because of his medical condition, he would not be required to undertake military service if he were to return to Iran, and that in circumstances where he did not have any other adverse profile, that he would not be of interest to the Iranian authorities if he were to return.
In the applicant’s written response of 7 January 2019 after the protection visa interview, the applicant’s representative referred to the following country information in relation to the treatment of military service evaders:
40.We submit that as military service evader, (the applicant) would be at increased risk of suffering serious harm in Iran. He would come to greater attention and suspicion from the authorities, giving rise to an imputed political opinion of being anti-government, and he would be at greater risk of arbitrary imprisonment.
41. According to an October 2016 report by the UK Home Office:
Draft evaders are liable for prosecution. A person who deserts from the army will have to continue military service upon return if he is under the age of 40. Evading military service for up to a year during peace time or 2 months during war can result in between 3 and 6 months added to a person’s military service. Longer draft evasion (more than 1 year in peacetime or 2 or more months during war) may result in criminal prosecution.
42.The General Office Report of the Netherlands Ministry Foreign Affairs noted that men from the age of 18 who avoid military service are considered to be ‘draft evaders and are liable for prosecution. Long draft evasion may lead to criminal proceedings before a military court and an extension of their military service.[35] (citations omitted)
[35] Court book at page 187.
In relation to the delegate’s concerns expressed in the protection visa interview about the applicant’s credibility, the applicant’s representative made the following submission:
19.In the s57 invitation to comment the Delegate put forward that in combination with (the applicant’s) testimony in his SHEV application, PV interview and country information, information may lead the Department to adversely assess the credibility of (the applicant’s) claim to have not been affected by Mediterranean Fever prior to coming to Australia and his claim to have been avoiding conscription and not having been medically exempted. It was further stated by the delegate that this consequently may lead the Department to consider (the applicant’s) claims to have fled Iran for fear of completing military service not to be credible. The Delegate based this on Departmental records that show in (the applicant’s) Arrival interview he claimed to have had a stomach infection, six weeks following his arrival. The Delegate went on to say ‘Given the proximity of your arrival, this suggests your Mediterranean Fever may have already been an issue prior to departing Iran’. (emphasis in original)
20We respectfully submit that the Department would be in error if it were to speculate on the timing of when (the applicant) should have started to experience Mediterranean Fever symptoms in those circumstances. The evidence coming from (the applicant) is that in Iran he was healthy and had no problems and soon after his arrival to Australia he started to experience health issues. We submit this evidence has been consistently retold by (the applicant) through his engagement with the Department. In addition, it is unreasonable to base a finding on how long after arriving to Australia the Delegate believes (the applicant) should have started experiencing Mediterranean fever without objective medical evidence to confirm the Delegate’s speculation. It is our submission it would be an error of the Department to infer an unreasonable speculation based on what the Department officer believes the events should have unfolded.[36]
[36] Court book at page 184.
With respect, this misunderstands the concerns raised by the delegate, as well as the conclusion reached by the Authority. Ultimately, the Authority did not accept the applicant was a military service evader. This conclusion was reasonably open on the totality of the evidence before the Authority and was not dependent upon a finding that the applicant had suffered symptoms of FMF prior to departing Iran. The critical issue for determination by the Authority was whether it accepted that the applicant was a military service evader, and if so, whether this attribute gave rise to a fear of harm if he were to return to Iran.
The Authority ultimately resolved this question in the negative. In coming to this view, as stated, the Authority had regard to the fact that the applicant had himself stated that he was unable to work for 11 years after completing his studies, that he had lived in the same house for that entire period and at no stage did he claim to have been pursued by the authorities in relation to his failure to undertake military service. Indeed, his evidence at the protection visa interview was that he was not hiding from the authorities in relation to his military service.
In addition, the Authority’s reasoning in relation to the applicant’s military service must be read in the context of the reasons as a whole. It is clear from the Authority’s reasons read as a whole that the Authority had concerns about the applicant’s credibility generally. These findings were made with the benefit of detailed submissions from the applicant’s representative on this, as well as other issues.
In the applicant’s further submissions to the Authority dated 3 May 2019, the applicant’s representative said:
In relation to (the applicant’s) military evasion claims, the Delegate rejected this claim and concluded that (the applicant) would not be at risk of harm on that basis if returned to Iran. We submit that, based on the Applicant’s profile as a young asylum seeker who fled the country illegally and spent his formative years in a Western country avoiding military service, he would be viewed as a conscientious objector, and the consequences for breaking this law would impact him disproportionately and could lead to persecution. In these circumstances, the Iranian authorities would be motivated by the Applicant’s perceived opposition to the regime. In the alternative, we submit that even if the harm (the applicant) fears on the basis of his evasion of military service is not found to have a nexus to the refugee definition, the harm constitutes significant harm with reference to the complementary protection provisions of the Act. This is so because the harm feared – a prison term – in and of itself constitutes torture.[37]
[37] Court book at page 263.
It is also relevant to the Authority’s findings that the applicant himself gave evidence that at no stage, whilst in Iran, did he publically express his opposition to the regime or to the requirement to undertake military service.[38]
[38] See Authority decision record dated 4 June 2019 at paragraph [17].
As conceded by counsel for the Minister, there was no evidence of a medical exemption per se,[39] but that is not in my view fatal to the Minister’s position in this case. Firstly, the Authority did not positively find that a formal exemption was granted on medical grounds. Rather, the Authority said at paragraph [14] that it found that the applicant did not complete military service and that he did not need to because ‘he was exempted on health grounds’.
[39] See Minister’s Outline of Submissions filed on 9 January 2023 at paragraphs [29] and [30].
This finding must also be read in the context of the further findings made at paragraphs [16] and [17] of the Authority’s decision, where the Authority said:
16.I have considered the applicant’s claim that he must have been evading military service, because his illegal departure is evidence of his inability to obtain a passport. I consider there may be other explanations for why he left illegally. … I find that just because the applicant may have left Iran illegally, this does not indicate he must have done so because he was evading military service. As found above, I consider he received an exemption for military service on health grounds, and I find there are other reasons why he chose to depart Iran illegally.
17.I have considered the applicant’s claim that he did not do military service because he was opposed to it. He has provided little detail to expand on this claim, and has not provided any evidence that he was an active conscientious objector. On the material before me I am not satisfied he faces any risk of harm for objecting to military service, because I do not accept he did so in any public manner, and for the reasons given above I find he is exempted on health grounds in any event.
It is clear from the Authority’s reasoning that it did not accept that the applicant was a conscientious objector and that this was the reason for him not undertaking military service. When regard is had to the totality of the evidence, this finding was open to the Authority.
Whether there was a formal exemption or not was not central to the Authority’s findings. Rather, the Authority’s findings were that there was an acquiescence to the applicant not undertaking military service, formal or otherwise. This was open on the basis of the fact that the applicant’s own evidence was that he had lived at the same location and therefore was readily able to be located by the authorities had they wished to do so. Moreover, the applicant and his family, again on his own evidence, was known to the authorities due to his brother having been involved in the possession of alcohol. It was therefore open on the basis of the totality of the evidence for the Authority to find, as it did, that the applicant was not at risk due to his failure to complete his military service, either whilst he was in Iran or if he were to return.
For these reasons, the Authority’s reasoning does not disclose any jurisdictional error.
CONCLUSION
I therefore dismiss the applicant’s application.
Both parties sought costs if they were successful. In those circumstances, and where the applicant has been wholly unsuccessful, I will also order that the applicant pay the first respondent’s costs in a sum to be fixed if not agreed.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri. Associate:
Dated: 27 April 2023
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