DKK18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 954
•26 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DKK18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 954
File number: MLG 1673 of 2023 Judgment of: DEPUTY CHIEF JUDGE MERCURI Date of judgment: 26 September 2024 Catchwords: MIGRATION LAW – application for judicial review – decision of the Immigration Assessment Authority – Temporary Protection visa – consideration of whether the Authority committed a jurisdictional error in its application of s 473DD of the Migration Act 1958 (Cth) – whether the Authority imported a requirement that the new information be true as opposed to ‘credible’ – whether the new information could not have been provided to the delegate for the Minister includes external limitations only – where applicant did not provide information about his claims to fear harm based on his sexuality – no jurisdictional error established – application dismissed Legislation: Migration Act 1958 (Cth), ss 36(2), 473DC and 473DD Cases cited: AZT22 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 90
Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456
CSR16 v Minister for Immigration and Border Protection [2018] FCA 474
DOU16 v Minister for Home Affairs [2019] FCAFC 212
ESQ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 44
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6
SZTFQ v Minister for Immigration and Border Protection [2017] FCA 562
Division: Division 2 General Federal Law Number of paragraphs: 145 Date of last submission/s: 12 June 2024 Date of hearing: 12 June 2024 Place: Melbourne Counsel for the Applicant: Mr M Kenneally Solicitor for the Applicant: Victoria Legal Aid Counsel for the First Respondent: Mr J Barrington Solicitor for the First Respondent: Sparke Helmore Lawyers ORDERS
MLG 1673 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DKK18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:
26 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The applicant’s application be dismissed.
2.The applicant pay the first respondent’s costs in a sum to be fixed if not agreed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
DEPUTY CHIEF JUDGE MERCURI:
INTRODUCTION
Before the court is an application for judicial review of a decision of the Immigration Assessment Authority (‘the Authority’) made on 23 August 2023. By its decision, the Authority affirmed a decision of a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Minister’) to refuse to grant the applicant a protection visa (‘the visa’).
The delegate’s decision was initially made 27 February 2018 and affirmed by the Authority on 12 June 2018 (‘first Authority decision’). The applicant sought judicial review of the first Authority decision in this court, which was then remitted to the Authority by consent on 10 July 2023. The present proceedings concern the Authority’s subsequent affirmation decision upon remittal made on 23 August 2023 (‘second Authority decision’).
BACKGROUND
The applicant is an Iranian citizen of Azeri Turkish ethnicity and arrived in Australia as an irregular maritime arrival on 6 February 2013.[1]
[1] Court book at pages 5 to 18 and 94.
Application for the visa on 24 August 2017
On 30 August 2017, the applicant applied for the visa by his application dated 24 August 2017.[2]
[2] Court book at pages 34 to 70.
Annexed to the applicant’s application for the visa was a Statement of Claims (‘Statement of Claims’), in which he details his reasons for leaving Iran and his fears of what may happen to him if he was to return, including interrogation, harm by security officers and imprisonment.[3]
[3] Court book at pages 71 to 73.
The applicant was invited to, and attended, an interview with an officer of the Department of Immigration and Border Protection (‘the Department’) on 15 November 2017 (‘the visa interview’).[4]
[4] Court book at page 89.
On 27 February 2018, the delegate for the Minister refused the applicant’s application for the visa.[5] The delegate’s decision record provides that the delegate was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under sections 36(2)(a) or 36(2)(aa) of the Migration Act 1958 (Cth) (‘the Act’), by reason of his ethnicity, religious beliefs, illegal departure from Iran or failed asylum in Australia.[6]
[5] Court book at page 91.
[6] Court book at pages 94 to 105.
Referral to the Authority on 27 February 2018
On 27 February 2018, the delegate’s refusal decision was automatically referred to the Authority pursuant to Part 7AA of the Act.
First Authority decision
On 12 June 2018, the Authority affirmed the delegate’s decision.
Remittal to the Authority by consent
As stated, on 3 July 2018, the applicant sought judicial review of the first Authority decision in this court. That application for judicial review resulted in orders, made by consent on 10 July 2023, quashing the first Authority decision and remitting the matter back to the Authority for review.[7]
[7] Court book at pages 120 to 121, being Orders of Registrar Van der Westhuizen made on 10 July 2023.
Second Authority decision
The applicant was represented in the remittal to the Authority by Refugee Legal,[8] who provided to the Authority written submissions, together with a statutory declaration of the applicant, country information and case law, on 17 July 2023.[9]
[8] Court book at page 116 to 117 and 126.
[9] Court book at pages 128 to 329.
The second Authority decision was made on 23 August 2023, again affirming the delegate’s decision.[10]
[10] Court book at page 342.
AUTHORITY’S DECISION
The second Authority decision of 23 August 2023 is set out at pages 343 to 354 of the court book.
At paragraph [6], the Authority refers to the submissions and documentation provided by the applicant’s representatives on 17 July 2023, noting that it contains new information. The Authority then went on to consider whether the new information provided meets the criteria as set out in s 473DD of the Act before ultimately concluding that while claims and country information related to the applicant’s purported drug use in Australia satisfied the criteria, the information related to his homosexuality did not.[11]
[11] Authority decision record dated 23 August 2023 at paragraphs [7] to [11] and [13].
At paragraph [12], the Authority noted the applicant’s claim that should the Authority consider s 473DD of the Act not met by the new information provided, notice should be given to the applicant of same, as well as consideration of an interview addressing the new information. The Authority rejected this claim, stating that it is not required to give notice if it finds s 473DD not met, nor to invite the applicant to interview to put forward new claims or information.[12]
[12] Authority decision record dated 23 August 2023 at paragraph [12].
The Authority summarised the applicant’s claims for protection at paragraph [15].
In its assessment of the refugee criteria against the applicant’s claims for protection, the Authority accepted that the applicant is an Iranian citizen and if he was to return to Iran, he would likely do so to Tehran.[13] The Authority did not accept, however, the applicant’s claims that he was pursued by authorities after attending a house church that was raided by police, he was wanted by Iranian authorities,[14] nor that he was socially isolated in Iran due to his religious views.[15]
[13] Authority decision record dated 23 August 2023 at paragraph [18].
[14] Authority decision record dated 23 August 2023 at paragraph [24].
[15] Authority decision record dated 23 August 2023 at paragraph [25].
The Authority, in dealing with the applicant’s claims to fear harm as a result of his history of drug use and drug-related criminal conviction in Australia, considered the relevant country information and concluded that the possibility of the applicant being re-prosecuted – or subjected to ‘double jeopardy’ – in Iran was too remote to amount to a real chance of harm for this reason.[16]
[16] Authority decision record dated 23 August 2023 at paragraphs [29] to [31].
At paragraph [39], the Authority ultimately concluded that the applicant did not meet the requirements of the definition of refugee in s 5H(1), and by extension, nor did he meet the requirements of s 36(2)(a) of the Act.
The Authority then went on to consider whether the applicant engaged Australia’s complementary protection obligations pursuant to s 36(2)(aa) of the Act and concluded that he did not.[17]
[17] Authority decision record dated 23 August 2023 at paragraphs [41] to [45].
The Authority therefore affirmed the delegate’s refusal of the visa.
PROCEEDINGS IN THIS COURT
On 28 September 2023, the applicant filed his application for judicial review of the second Authority decision, together with an affidavit annexing the second Authority decision.
The applicant thereafter filed an amended application on 15 May 2024, pursuant to orders of this court. Also on 15 May 2024, the applicant filed an Affidavit of Lawson Bayly, affirmed the same date (‘the Bayly Affidavit’), which annexed a copy of the transcript of the visa interview held on 15 November 2017.
The amended application raises five grounds of review which are set out in more detail below.
GROUND 1
By ground 1, the applicant asserts:
1. The IAA failed to consider the applicant’s claim or an integer of his claim to fear serious or significant harm on return to Iran for reason of having obtained a passport using a fake military service completion card.
Particulars
a.The applicant claimed to fear harm for having obtained a passport through fraudulent means.
b.The delegate and IAA identified that the applicant’s claim was he had obtained a fake certificate indicating he had completed military service in order to obtain an Iranian passport.
c.The applicant claimed he would be convicted and punished for having left Iran without having completed military service.
d.The IAA considered the possibility that the applicant’s use of the fake military service card could be discovered but failed to:
i.consider the risk the use of the fake military service certificate would be discovered;
ii.whether the applicant would be charged, convicted, or punished; and
iii.whether he may face serious or significant harm in that process.
e.The error was material.
At the heart of ground 1 is the claim by the applicant to fear harm for having departed illegally on a fake passport. The applicant submits that this claim either was expressly made or clearly arises on the material. In support of this ground, the applicant relies upon not only the express terms of the applicant’s claims but also the fact that the delegate had themselves identified this fear in their reasons.
In support of ground 1 the applicant also refers to and relies upon a transcript of the visa interview, a copy of which is annexed to the Bayly Affidavit.
The applicant claimed he could not obtain a genuine passport as he had not completed military service.[18] In addition, in the applicant’s Statement of Claims,[19] the applicant stated that he feared being detained on his return to Iran and that he would be interrogated and harmed by security agents for, among other things, having departed Iran unlawfully. The applicant also points to the fact that, in response to a question from the delegate about the risk to him for not having completed military service, he said:
If I return to Iran I would face three major problems and for two of them I cannot say now because you have to know the case, but for one of the problems it is the military service, they will convict me for escape – illegal escape from the country because I didn’t go to the military service. This can be a big problem – a serious problem. They will harm me.[20]
[18] Court book at page 54.
[19] Court book at page 73, paragraph [13].
[20] Affidavit of Lawson Bayly affirmed and filed on 15 May 2024, Annexure 1 at page 8.
In addition, in the visa interview, the applicant’s representative also made reference to the fact that the applicant was able to obtain a fake passport by paying money and that ‘on the face of it, [the applicant] goes to the airport and he manages to leave the country without any difficulties’.[21]
[21] Affidavit of Lawson Bayly affirmed and filed on 15 May 2024, Annexure 1 at page 30.
Further, the applicant’s representative again submitted to the delegate that the applicant faced risk of harm because he left the country unlawfully.[22] The applicant refers to the delegate’s decision wherein the delegate identifies this claim where they said:
Illegal Departure
The applicant claims to have departed Iran on an Iranian passport obtained with fraudulent documentation as he had not completed his compulsory military service at time of departure and therefore his departure from Iran would be considered illegal.[23]
[22] Affidavit of Lawson Bayly affirmed and filed on 15 May 2024, Annexure 1 at pages 34 to 35.
[23] Court book at page 101.
The delegate then makes reference to the sophisticated security features that safeguard the issuing of passports and notes that:
… Punishments for forgery are dealt with in Articles 523 to 524 of Iran’s Penal Code.
…
… Country information also indicates that unless they are exempt, military service in Iran is mandatory for males aged 18 to 34 … Young men of 17 years of age will be prevented from leaving Iran until they have completed their military service. It is possible, however, for a male ‘to apply and obtain permission to travel before completion of service for educational purposes or in the event that he needs to travel for medical attention abroad. Country information suggests although that it is possible to obtain forged documents or buy legal documents in Iran and to obtain genuine documents in a fraudulent manner, forgeries are rarely used since the provenance of a document can be easily checked by reference to court or office registers. The prevalence of fraudulent documents in Iran often means details are rigorously checked by government officials prior to passport issue.[24]
[24] Court book at page 101.
Relevantly, the delegate concluded:
Based on the independent country information before me I consider that in issuing the applicant with a passport to depart Iran that the authorities were sufficiently satisfied that the applicant fulfilled all identity and military service requirements prior to passport issue. The fact that the applicant was able to depart Iran and pass through the various levels of passport checks and scrutiny at Imam Khomeini International Airport in Tehran without apparent difficulty at the time of his departure indicates that the applicant was of no interest to the Iranian authorities. Based on the account provided by the applicant and the fact that the applicant was able to depart Iran without issue suggests that the applicant will be considered by the Iranian authorities to have departed Iran lawfully and not illegally as claimed.
I therefore do not consider that the applicant face a real chance of persecution on account of his claimed illegal departure in the event he were to return to Iran in the reasonably foreseeable future.[25]
[25] Court book at page 102.
It is submitted that the delegate ‘identified and considered the claim that the applicant had obtained the passport unlawfully – by providing fraudulent documentation – and he could be punished for that conduct’.[26]
[26] Applicant’s Outline of Submissions filed on 20 May 2024 at paragraph [13].
It is therefore submitted for the applicant that a claim that the applicant faced fear of harm as a result of having obtained a passport via unlawful means was made and that the Authority was therefore required to consider that claim. In failing to do, it is submitted for the applicant that the Authority failed in its statutory task.
Even if the court were to accept that no such express claim were made by the applicant, it is submitted that the court should have regard to the fact that the claim was identified by the delegate and therefore, the Authority was required to consider that claim.
It is clear that the review material which the Authority is required to consider, includes the delegate’s decision. In ESQ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 44 at [72], the Full Court of the Federal Court observed:
72In our view, the delegate properly identified circumstances that might give rise to a claim for protection, though we accept that this conclusion is necessarily an evaluative judgement. It was open to the Authority to reach a view that the appellant was not entitled to protection as a failed asylum seeker returning from a western country. However, the Authority erred in not undertaking that active intellectual process in circumstances where there was nothing to suggest the unarticulated claim had been abandoned or withdrawn by the appellant. …
Therefore, it was submitted for the applicant in this instance that, in circumstances where the delegate raised a claim, which was not abandoned by the applicant, the Authority was obliged to consider it.
The applicant said that the Authority addressed this claim at [34] of its reasons. It is submitted that the Authority contemplated that the applicant might be identified as someone who had obtained a fake military service completion card and that he may be drafted. Having identified this risk, it is further submitted that the Authority was required to consider ‘the likelihood of the risk occurring and whether it would result in harm as claimed’.[27] It is submitted that it did not do so and therefore failed in its statutory task. Moreover, it is submitted that the Authority did not consider the risk of harm to the applicant as a result of having engaged in using fraudulent documents.
[27] Applicant’s Outline of Submissions filed on 20 May 2024 at paragraph [17].
In response, it is submitted for the Minister that no such claim was made by the applicant. Moreover, in circumstances where the applicant was represented before the Authority, the Minister submits that the court should not lightly infer that such a claim was made or that one clearly arises from the material.[28]
[28] First Respondent’s Outline of Submissions filed 29 May 2024 at paragraph [11]; AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503; [2018] FCAFC 89.
It is submitted for the Minister that the claims made by the applicant regarding having obtained a ‘fake’ or ‘illegal’ passport by using a fake military service completion card related to the claim to fear harm as a result of having left the country illegally on a fake passport and that he feared harm as a result of not having completed his military service. It is submitted for the Minister that the applicant did not make a claim to fear harm as a result of having engaged in criminal forgeries in Iran. Nor, says the Minister, that such a claim arises from the delegate’s reasons. It is submitted that when read fairly, the delegate’s reasons show that the delegate considered whether the applicant faced a risk of harm arising from the applicant’s illegal departure.
The Minister submits that in considering the applicant’s claim, the delegate, and in turn the Authority, referred to country information about forged documents and airport procedures. The delegate then concluded that the applicant would, in their view, be considered by the Iranian authorities to have departed Iran lawfully.
The Minister submits that, in considering the applicant’s claim that he had departed Iran illegally, the Authority considered whether the applicant might face a risk of harm arising from illegal departure. The Authority found that the applicant left Iran on a genuine Iranian passport and that this would be shown to be the case in any checks if he were to return. Having made this factual finding, the Authority was not required to then consider whether the applicant faced a risk of harm for having obtained a passport through illegal means.
In response, the applicant points to the following evidence in support of ground 1:
(a)In the visa application, the applicant stated:
the people smuggler forged a passport for me so I could exit the country. I had not completed my military service so I was not entitled to receiving a legal passport[29]
(b)In paragraph [11] of the applicant’s Statement of Claims attached to the visa application, he said:
… I did not have a passport at the time as I had not completed my military service. The people smuggler that my father engaged to assist me flee Iran, organised a fake passport for me within three weeks whilst I was in hiding. He took me to the airport on 17 December 2012 and ensured my safe exit from the immigration gate[30]
(c)In the visa interview, the applicant’s representative said:
… people would make fake or, in fact, in a fraudulent manner as I would say, they would make a military service completion card for you and in that card, they apply later on, to the Iranian Passport Office to get a … legitimate and valid passports which obviously is obtained in a fraudulent manner because the documents that are required for applying for the passport was obtained through an illegal means …[31]
(d)Also in the visa interview, the applicant’s representative said:
… there is a likelihood that when he returns to Iran he will be arrested at the point of entry and he will be taken for investigations by the CUD official and … because he has left the country unlawfully, the minimum punishment would be an increase in the term of over 12 months for him.[32]
[29] Court book at page 54.
[30] Court book at page 72.
[31] Affidavit of Lawson Bayly affirmed and filed on 15 May 2024, Annexure 1 at page 29.
[32] Affidavit of Lawson Bayly affirmed and filed on 15 May 2024, Annexure 1 at pages 34 to 35.
It is submitted for the applicant that when the applicant claimed that he feared harm because he had left the country illegally, this encompassed a number of elements including that in order to leave illegally, he obtained a fraudulent document which enabled him to obtain a passport and therefore the fear of harm arose not just from his physical departure from Iran, but from the illegal acts which permitted or facilitated that illegal departure.
It was submitted for the applicant that the claim that the applicant feared harm because he left Iran illegally, comprised a claim to fear harm because he obtained a passport through illegal means, which included obtaining a fraudulent military service completion card and then leaving the country on that passport. Importantly, it is submitted that this was all done as a single course of conduct. Therefore, it is submitted that when the applicant says that he fears harm from his unlawful departure, it is a claim to fear harm from all of the unlawful conduct which culminated in his departure from Iran.
It is submitted that the Minister’s argument that the only claim made was to fear harm from the illegal departure and from not having completed military service, is an artificial distinction. The applicant submits that the fear of harm from the fraud was clearly part of the broader expressly articulated claim. It is submitted that the fraud claim was ‘an essential and critical aspect of his illegal departure’.[33]
[33] Court transcript at page 4.
Similarly, it is submitted for the applicant that the claim which the Minister concedes was made, namely, to fear harm from for having left Iran without completing his military service. The thing which enabled the applicant to do so was the fact that he obtained a military service card fraudulently. It was submitted for the applicant that it was entirely artificial to separate the fraud claim from the two claims the Minister concedes was made by the applicant.
It was further submitted for the applicant that the Authority contemplated that it was possible that the applicant’s false military service card might be discovered on his arrival. The applicant submits that having done so, the Authority was required to consider the risk of harm to him if his fraudulent military service card was discovered.
In support of this ground, the applicant also refers to and relies upon DOU16 v Minister for Home Affairs [2019] FCAFC 212 (‘DOU16’). The applicant says that in DOU16, like in this case, the Tribunal found that the applicant’s use of a fake military service card to obtain a passport was not likely to be discovered on re-entry and that if it was, that he would only face a fine. The Full Court of the Federal Court in DOU16 found that the Tribunal failed to consider the risk of harm to the applicant of having obtained a fake certificate through a bribe and that its failure to do so constituted a jurisdictional error. It is submitted for the applicant that the same error was made by the Authority in this case.
In DOU16, the Tribunal accepted that in paying a bribe, the visa applicant had procured a completion of a military service certificate which falsely stated that he had completed military service. It rejected, however, that if the visa applicant returned to Iran he would suffer serious or significant harm if it transpired that the authorities found that he had obtained the certificate illegally.
Unlike the position in DOU16, however, in this case the Authority did not accept that the applicant obtained a fraudulent military service certificate. This is evident from the following discussion by the Authority of the applicant’s claim that he feared harm as a result of having left Iran illegally:
The applicant was 23 when he left Iran and it is not clear how he was able to evade service for 5 years, if in fact he did. According to DFAT men age over 40 who have evaded military service will likely receive a fine for doing so. Those who return to Iran under the age of 40 will be drafted. If the applicant has not yet done his military service, or if the fake military service completion card he obtained is discovered to be fraudulent, he may be drafted.
(Emphasis added)
It is clear from a fair reading of the Authority’s reasons that it did not accept that the applicant had either not completed his military service, or that he had obtained a fraudulent military completion card. The conclusions in DOU16 do not equally apply to the facts in this case.
It is submitted for the applicant that in this case, the Authority contemplated the possibility that the applicant’s fraud might be discovered was not limited to his arrival and might occur after he had re-entered the community. In particular, the applicant relies upon the Authority’s findings at paragraph 34 of its decision.
When paragraph 34 of the Authority’s decision is read fully and fairly, it is clear that the Authority does not accept that the applicant had not completed military service as claimed and therefore that the military service document was in fact not genuine.
The Minister submits that the references by the applicant in the visa application to holding a fake passport do not disclose a claim to fear harm due to the act of obtaining fake documents or a fake passport. I agree. This is particularly so when one considers that that information was provided in response to the questions: ‘describe how you departed your home country including the details of any fraudulent documents you used’ and ‘Give details of why you don’t have your current travel document’.[34]
[34] Court book at pages 54 and 55.
The Minister also notes that the reference to the fake passport in the applicant’s Statement of Claims was that the people smuggler that his father used ‘organised a fake passport for me within three weeks whilst I was hiding’.[35] It is submitted that the applicant did not claim that he had obtained a fake passport or that he had obtained false documents. Rather, the applicant said that someone else obtained his passport.
[35] Court book at page 72.
In the Statement of Claims under the heading ‘What I fear may happen to me in Iran’, the applicant relevantly stated ‘I know that I will be interrogated and harmed by the security agents before ending up in prison for unlawful departure …’.[36] It is submitted that the focus here is on the illegal departure, not on the prior act of obtaining a fake military service completion card.
[36] Court book at page 73.
Similarly, the Minister points to the claim made by the applicant’s representative in the submissions made to the Authority on 17 July 2023, under the heading ‘Illegal Departure’ where the applicant’s representative said:
Due to [the applicant’s] illegal departure from Iran, should he be returned, he would have to enter with a temporary travel document. This would alert authorities as to his presence immediately upon airport arrival. [The applicant’s] criminal history and lengthy absence from the country render him at high likelihood of questioning by authorities upon return, and at serious risk of harm once this information becomes known by authorities.[37]
[37] Court book at page 134.
The Minister further notes that the following exchange occurred in the visa interview:
Delegate: What issues do you think you would face if you were to return to Iran now because you haven’t completed your military service?
Applicant:If I return to Iran I would face three major problems and for two of them I cannot say now because you have to know the case, but for one of the problems it is the military service, they will convict me for escape – illegal escape from the country because I didn’t go to the military service. This can be a big problem – a serious problem. They will harm me. I do not have precise information but something up to them and their decision-makers.[38]
[38] Affidavit of Lawson Bayly affirmed and filed on 15 May 2024, Annexure 1 at pages 7 to 8.
It was submitted for the Minister that it is not open to conclude that a claim that the applicant in answering this question was expressing a concern that he would be punished for the act of forgery.
The Minister also refers to the exchange between the delegate and the applicant in the visa interview at question 58 and 59.[39] It is submitted that this exchange makes it clear that the applicant’s concerns relate to his illegal departure and the fact that he had not undertaken military service. The Minister further refers to the exchange between the delegate and the applicant in response to question 78 about the process for obtaining a passport.[40] It is submitted that in answering this question, the applicant makes clear that someone else obtained the passport for him, and in this case this provides further context for concluding that the applicant did not make a claim to face fear as a result of having obtained fraudulent documents as it was not the applicant himself who did so.
[39] Affidavit of Lawson Bayly affirmed and filed on 15 May 2024, Annexure 1 at pages 13 to 14.
[40] Affidavit of Lawson Bayly affirmed and filed on 15 May 2024, Annexure 1 at pages 20 to 21.
Relevantly, in this context, the following exchange then occurred between the delegate and the applicant:
Delegate:I consider based on the country information and your account of getting the document, that it was more than likely not obtained in the manner that you claim. If you were - - -
Applicant:I didn’t obtain a passport but this man gave me the passport and he told me that this passport is fake and this is all I know, and I just maybe didn’t think more about passport.[41]
[41] Affidavit of Lawson Bayly affirmed and filed on 15 May 2024, Annexure 1 at pages 21 to 22.
The Minister also referred the court to a further exchange between the delegate and the applicant at questions 83 to 85 of the visa interview. Relevantly, when pressed about what crimes the applicant feared he would be imprisoned for in Iran, he referred to ‘going out of the country illegally’.[42]
[42] Affidavit of Lawson Bayly affirmed and filed on 15 May 2024, Annexure 1 at page 24.
It is submitted for the Minister that when regard is had to these exchanges, as well as the other references upon which the applicant relied, it is clear that the applicant did not make a claim to fear risk of harm for having engaged in some fraudulent activity or forgery or the like. This is particularly so when regard is had to the fact that the applicant had competent representation throughout, including before the Authority.
It is further submitted for the Minister that if the court accepts that no express claim was made in relation to fearing harm due to the applicant’s involvement in obtaining a passport through the use of a forged military service completion document, then the court should also reject any suggestion that such a claim clearly emerges from the material before the Authority.
In support of the latter proposition, the Minister submits:
(a)where an applicant is represented, the decision maker is entitled to proceed on the basis that claims which are advanced are those that the applicant seeks to make;
(b)on the material put before the Authority it is difficult to see how any liability for the forgery ‘could be sheeted home to the applicant’,[43] in circumstances where the applicant’s repeated claims were that he did not obtain the forgery, but rather that it was obtained by the person who arranged his departure from Iran;
(c)finally, it is submitted that even if such a claim did emerge from the material before the Authority, it is not clear how this could be said to be a protection claim in circumstances where his claim is, at its highest, that he faces risk of harm because he breached a law and made false documents – it is not clear how it is said that breaking a law of general application in a country could be said to give rise to a protection claim.
[43] Court transcript at page 14.
Finally, it is submitted that the delegate’s reasons do not identify and deal with such a claim such that it is therefore before the Authority as argued for the applicant. I agree with the Minister’s submissions that the delegate is simply summarising the applicant’s claims in its decision when discussing ‘Illegal Departure’.[44]
[44] Court book at page 101.
On a fair reading of the delegate’s reasons, it is clear that the second paragraph under the heading ‘Illegal Departure’ is no more than a summary of the country information about the security features that Iranian identification documents contain which would make forgery difficult. The delegate then also refers to the criminal penalties for forgery in this context, namely in the context of the lengths that the Iranian government has gone to in protecting against forgeries in identity documents.
On a fair reading, it cannot be said that the delegate considered a claim that the applicant faced a fear of harm due to having obtained and/or used forged documents to obtain a passport. So much is so from the delegate’s observations as follows:
Based on the independent country information before me I consider that in issuing the applicant with a passport to depart Iran that the authorities were sufficiently satisfied that the applicant fulfilled all identity and military service requirements prior to passport issue. … Based on the account provided by the applicant and the fact that the applicant was able to depart Iran without issue suggests that the applicant will be considered by the Iranian authorities to have departed Iran lawfully and not illegally as claimed.[45]
[45] Court book at page 102.
In these circumstances it is submitted for the Minister that a claim that the applicant now argues that the Authority failed to consider, was not expressly made and did not clearly emerge from the material before the Authority such that a failure to consider that claim could amount to a jurisdictional error. I agree.
The applicant did not claim to fear harm as a result of having used a fraudulent document to obtain his passport. Such a claim did not clearly emerge from the material before the Authority. Nor was such a claim considered by the delegate. I accept that had it been considered by the delegate, notwithstanding not having been clearly articulated by the applicant, it would have emerged from the review material before the Authority. For the reasons discussed earlier however, I am not satisfied that read fairly, such a claim was considered by the delegate.
Nor can it be said that such a claim clearly emerges from the material. The applicant claimed to fear harm as a result of having left Iran without having completed his military service. The Authority considered that claim and rejected it for the reasons given.
For each of these reasons, ground 1 is not made out.
GROUND 2
By ground 2, the applicant contends:
2. The IAA failed to consider an integer of a claim that clearly emerged from the material that the applicant may face harm as a drug user if drafted to do military service.
Particulars
a.The IAA considered whether the applicant may have faced harm in completing military service.
b.The IAA having identified the claim, needed to consider the applicant’s circumstances and vulnerabilities.
c.The IAA failed to consider whether the applicant may relapse into drug use during military service and face harm as a result.
d.The error was material.
By ground 2, the applicant claims that the Authority failed to consider whether the applicant faced a risk of relapse into drug abuse if he were required to undertake military service if he were to return to Iran.
The Authority accepted that it could consider the following new information contained in the applicant’s statutory declaration to the Authority:
24.… I am also aware that I now have criminal convictions recorded for drug related offences. Although I have served prison terms for offences related to drug use and am now free of all illicit substances, I am fearful about how my drug use would be perceived by Iranian authorities should I return.
25.Whilst I have benefited from being able to explore my sexuality and utilise drug rehabilitation programs in Australia, I fear what would happen if I were to be returned to Iran.[46]
[46] Court book at page 149.
The applicant submits that in addressing this claim, the Authority failed to consider the risk that the applicant may relapse into drug use if he were required to undertake military service on his return to Iran.
The Authority said:
[31]The applicant told the delegate his conviction was drug related, but said he did not sell drugs. There is no information before me that he has engaged in drug trafficking. The applicant does not claim to be a drug trafficker or an active drug user. I note the past stressors he says lead him to using drugs, missing his family and his uncertain visa status, would no longer be an issue. It is mere speculation that he may take up illicit substances again if he returns to Iran. …
It is submitted for the applicant that in circumstances where the Authority went on to consider whether the applicant may have to do military service if he were to return to Iran,[47] and in circumstances where the applicant had given evidence that he was afraid to undertake military service, the Authority was required, in considering the applicant’s claims, to consider ‘a person’s vulnerabilities in considering their risk of harm in certain circumstances’.[48]
[47] See Authority decision record dated 23 August 2023 at paragraph [34].
[48] Applicant’s Outline of Submissions filed on 20 May 2024 at paragraph [22], citing AGA16 v Minister for Immigration and Border Protection [2018] FCA 628 at [35] and SZTEQ v Minister for Immigration and Border Protection [2015] FCAFC 39 at [144], [151] and [153].
The applicant further submitted that having identified that the applicant feared military service, the Authority should have considered whether the stress of that service might lead to a drug relapse, thereby placing the applicant at a risk of harm. In failing to do so, the applicant submits that the Authority erred and that that error was material.
As noted by counsel for the Minister in their written submissions, this ground must fail on the basis that the applicant did not claim to fear harm from a possible drug relapse triggered by the prospect of, or having to undertake, military service on his return to Iran. Nor did such a claim squarely arise from the material before the Authority. The extracts from the applicant’s Statutory Declaration make it clear that the fear of harm identified was ‘how his drug use would be viewed by the authorities’ not that he may risk relapse if he were to have to undertake military service. As noted by the Authority, the applicant’s claim was that he feared harm due to his historic drug use in Australia and how this might be viewed by the Iranian authorities.[49]
[49] Authority decision record dated 23 August 2023 at paragraph [29].
The Authority considered the risk faced by the applicant of prosecution for offences committed in Australia, again on his return notwithstanding that he has been convicted in Australia and served a prison sentence. The Authority then referred to country information and concluded that there were no recent examples of a failed asylum seeker facing double jeopardy on return to Iran in this way. The Authority then went on to consider how drug abuse is treated in Iran generally, noting that it is a serious problem. Whilst noting that a number of people have been executed for drug related offences, it also noted that drug addiction may be treated as a health issue rather than a criminal issue. The Authority also referred to country information from DFAT which reported that ‘the Iranian authorities have little interest in returning failed asylum seekers and do not routinely investigate their sur place activities’.[50]
[50] Authority decision record dated 23 August 2023 at paragraph [30].
It is against this background that the Authority then considered the applicant’s particular circumstances and found, having regard to country information, that any risk the applicant faced of double jeopardy for offences carried out in Australia was too remote to amount to a real chance. It also considered to be remote that the authorities would have any interest in the applicant’s offences in Australia generally. The Authority also considered that, absent the stressors which the applicant said caused him to engage in drug use in Australia, it was mere speculation that he would take up drug use on his return.
It is clear from these findings that the Authority considered whether the applicant faced a risk of relapse on his return. It was open to the Authority to conclude as it did.
In these circumstances, it was not necessary for the Authority to consider and speculate upon whether the applicant might relapse for any other reason including if he were to be required to undertake military service.
The Authority did not find he would have to undertake military service on his return. When read fairly, the Authority concluded that it was unlikely that he would have to do so. As stated in relation to ground 1 above, the Authority did not accept that the applicant in fact had not already undertaken military service, or that he had obtained a fraudulent military service completion document. Whilst it left open the possibility in relation to these matters, the Authority also expressed a view that the applicant, if returning to Iran, would now likely be eligible for an exemption from military service in circumstances where he is now the only son of his widowed mother.
In circumstances where it could be said to be no more than a possibility that the applicant would be required to undertake military service if returned to Iran, and that it was merely speculative that he would relapse, the Authority was not required to consider this or discuss it in detail.
For these reasons, ground 2 is not made out.
GROUNDS 3 AND 4
Grounds 3 and 4 of the application read as follows:
3. The IAA failed to complete its statutory task, made an irrational or unreasonable finding, or misconstrued the meaning of ‘information’ in s 473DD(b) in finding the applicant’s new information regarding his homosexual relationships did not satisfy s 473DD(b)(i).
Particulars
a.The applicant provided new information that after the delegate’s decision he had: used gay dating applications to meet and have casual sex with men; had a sexual relationship with a man called Kevin; and had an ongoing sexual relationship with a man in prison.
b.The IAA was required to consider if this new information could not have been provided to the delegate pursuant to s 473DD(b)(i).
c.The IAA did not find that the new information satisfied s 473DD(b)(i).
d.The IAA either:
i.failed to consider if this new information could be provided to the Minister;
ii.misconstrued the meaning of ‘information’ in s 473DD(b) and failed to appreciate that the information was new information;
iii.conflated the word ‘information’ in s 473DD(b)(i) to mean claims; and/or
e.made an unreasonable or irrational finding that the information did not satisfy s 473DD(b)(i).
f.The error was material.
4. The IAA failed to complete its statutory task, asked itself the wrong question, and/or misapplied s 473DD(b)(ii), in considering the applicant’s new information regarding his homosexuality.
Particulars
a.The applicant provided new information regarding his homosexuality and relationships with men.
b.The IAA was required to consider if the new information satisfied s 473DD(b)(ii).
c.To satisfy s 473DD(b)(ii) new information must be ‘credible’ which means capable of belief.
d.The IAA found the new information was not ‘credible’ within the meaning of s 473DD(b)(ii) because the applicant had not provided corroborative information or his boyfriend Kevin’s last name.
e.The IAA misconstrued or misapplied s 473DD(b)(ii) by determining the question of whether the information was credible on the basis of whether it was true or not.
f.The error was material.
Both ground 3 and ground 4 relate to the Authority’s treatment of new information provided regarding the applicant’s claimed fear of harm due to his homosexuality.
This information was provided in the applicant’s Statutory Declaration to the Authority.[51] Some, but not all, of the new information provided in relation to this claim, pre-dated the delegate’s decision, which was made on 26 February 2018.
[51] Court book at pages 147 to 150.
Relevantly, the applicant’s statement included that:
(a)he could not have sex with his girlfriend from 2014 to 2016;
(b)he had a sexual relationship with a man whilst in immigration detention in 2017;
(c)he did not disclose this information at the time, as he had not yet accepted his sexuality;
(d)on release from detention in 2019, he met a man called Kevin (among others) through an online dating app and he had a relationship with Kevin; and
(e)he had a sexual relationship with a man whilst in prison.
Section 473DD of the Act relevantly provides:
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a)the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b)the referred applicant satisfied the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i)was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii)is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.
There is no dispute between the parties as to the operation of s 473DD, namely that the Authority is required to consider s 473DD(b)(i) and (ii) before considering whether the requirements of s 473DD(a) have been met.[52]
[52] AUS17 v Minister for Immigration and Border Protection [2020] HCA 37 at [10]-[11].
Ground 3 relates to whether the Authority made an error in applying s 473DD(b)(i).
The applicant submits that the Authority found that he was aware as early as 2016 that he was not attracted to women and that he had had a relationship with a man in 2017 and therefore he could have made these claims prior to 26 February 2018 when the delegate made their decision. The Authority therefore concluded that s 473DD(b)(i) was not satisfied.[53]
[53] Authority decision record dated 23 August 2023 at paragraph [10].
In relation to ground 3, the Minister, quite correctly, has conceded that there was an error in that some of the new information upon which the applicant sought to rely, did not occur until after the delegate’s decision and therefore in relation to that information, s 473DD(b)(i) could be satisfied. However, it is submitted for the Minister that any such error is not material, and therefore does not constitute a jurisdictional error.
In relation to ground 4, the applicant submits that in concluding that the information provided was not ‘credible’, the Authority applied the wrong test and therefore erred.
It is not in dispute that the test for whether information is ‘credible’ in the sense required by s 473DD(b)(ii) is that it is ‘capable of belief’, not whether the information is in fact true.[54]
[54] AZT22 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 90 (‘AZT22’) at [17]-[23] and the cases referred to therein.
In CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 (‘CSR16’), Bromberg J said, at [41]:
In my view all that the ‘credible’ element of the s 473DD(b)(ii) criteria requires is the Authority’s satisfaction that the ‘new information’ is information which is open to be or capable of being accepted by the Authority as truthful (or accurate, or genuine). It is only at the deliberative stage of its review that the Authority will be required to determine whether or not the ‘new information’ is true. The s 473DD(b)(ii) criteria is concerned with an earlier or anterior stage of the review directed at whether ‘new information’ should be received by the Authority so that it may be considered at the deliberative stage.
After setting out the above statement of Bromberg J in CSR16, the Full Court in AZT22 noted that the filter process in s 473DD(b)(ii) must be undertaken as a preliminary step, before then going on to say:
21 … Having referred to the High Court’s description of the Authority’s task under s 473DD(b) in Plaintiff M174/2016 v Minister for Immigration and Border Protection … their Honours said at [68] – [69]:
‘Two matters should be noted about this passage, and the proper approach described by the plurality. First, what is contained in s 473DD is described as a ‘precondition’. That is, although it is part of the review function of the Authority, the exercise of power under s 473DD comes before the Authority can ‘consider new information that is given to it’ by a referred applicant. It is thus part of the Authority’s preliminary decision-making about what is the complete scope of the material it will be considering on its review for the purpose of its statutory task, which is, as the plurality in Plaintiff M174 outlined at [17],
‘to consider the application for a protection visa afresh and to determine for itself whether or not it is satisfied that the criteria for the grant of the visa have been met.
‘As the plurality observed at [32], the precondition in s 473DD(b)(i) needs ‘[n]o explication’. It is a matter of objective fact, and straightforward. It would be curious if the precondition in s 473DD(b)(ii) were not also treated as involving a relatively straightforward assessment, being, as we have explained, a preliminary step the Authority must take before settling on the scope of the material which is to be before it on its review, so that it can consider afresh the protection visa application, and make its own decision.’
…
23The challenge that might be faced if s 473DD required an assessment of whether the new information is ‘true’ as against ‘credible’ was explained as follows at [76]:
‘Particularly in a scheme premised on a review ‘on the papers’, there is a real difficulty with the Authority undertaking some kind of substantively evaluative process at this point, and weighing the new information, the visa applicant’s explanation of why it should be considered, and the existing review material together, and then reaching some relatively definitive findings about the credibility of the visa applicant. …That is neither what the legislative scheme of Pt 7AA contemplates nor what it permits. Fresh decisions on the review must be based on the review material before the Authority: they cannot be based on extraneous material, which is what ‘new information’ is, until it is admitted. That, in our opinion, is an important reason why the approach identified by Bromberg J in CSR16 is correct.’
Applying these principles, it is submitted for the applicant that the Authority’s reasoning at paragraph [11] shows that it was considering whether the applicant’s information about being homosexual was true rather than simply whether it was credible. The applicant submits that the Authority does not say that the applicant’s evidence in this regard is ‘inherently implausible, unbelievable, or improbable’. Rather, according to the applicant, the Authority simply says that the evidence is not corroborated in circumstances where it could have been. It is submitted that the absence of corroboration per se does not render information unbelievable or implausible.
The Minister rejects this submission. Rather, it is submitted for the Minister that it is clear the Authority was aware of the correct approach to s 477DD(b)(ii) and that it in fact applied the correct test. The applicant quite rightly concedes that the Authority refers to the correct test at paragraph [7] of its reasons. However, whilst the Authority may have been aware of the correct test, the question remains as to whether it properly applied that test.
The Minister submits that when read as a whole, the Authority’s reasoning is consistent with a finding that the new information provided by the applicant about his homosexuality was not ‘capable of being believed’.
The Minister says that it did properly apply the correct test and points to the Authority’s finding that the applicant had information about his alleged homosexuality and about a prior homosexual relationship, but he ‘chose not to provide it’ to the delegate. In this context, the Authority went on to say that the applicant:
… has provided no supporting evidence of any of this, such as medical records, evidence of his profile or use of apps, …
It is submitted for the Minister that this provided a proper basis upon which to conclude that the new information was not credible in the sense used in AZT22.
The difficulty with the Minister’s submission in this regard is that it is approaching the analysis that one would expect the Authority to undertake in assessing the veracity of the evidence provided, rather than the preliminary and ‘straightforward’ assessment of whether the information was ‘credible’.
The absence of corroboration is a matter that one might expect the Authority to take into account in determining whether the claims made were ultimately accepted. It however, does not go to the question of whether the information was credible per se in the sense that it was open to be accepted by the Authority as true.
A claim by the applicant that he had used dating apps for the purpose of meeting men with whom to have sexual relations, or that he was in a homosexual relationship with a nominated person are matters which on their face are open to be accepted by the Authority as true. Of course, in assessing whether to accept that they are in fact true, once admitted, the Authority would no doubt engage in the type of analysis that it did and consider the applicant’s explanation as to the absence of any corroborative evidence.
I therefore find that the Authority did fail to properly apply s 473DD(b)(ii) of the Act.
In circumstances where the Minister conceded that the Authority erred in its application of section 473DD(b)(i) and having found that the Minister erred in its application of section 473DD(b)(ii), the question is whether either or both of these errors is material. For the following reasons, I find that they are not and therefore the errors are not jurisdictional.
In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 (‘LPDT’), the High Court said:
7In most cases, however, an error will only be jurisdictional if the error was material to the decision that was made in fact, in the sense that there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred. That is because it is now accepted that a statute which contains an express or implied condition to be observed in a decision-making process is ordinarily to be interpreted as incorporating such a ‘threshold of materiality’ in the event of non-compliance.
8The reasons of the primary judge and the Full Court in the present case, as well as other trial and intermediate appellate decisions, suggest uncertainty or confusion about the meaning and effect of some of the language used by the Court in identifying the principles to be applied in assessing materiality. It would be unsatisfactory if that uncertainty or confusion persisted. It is desirable to give practical guidance in terms with which all the Court agree. Necessarily, differences of expression and emphasis previously adopted by individual Justices have been set aside in favour of the guidance that is now set out.
Two Questions
9Where it is alleged in an application for juridical review that a decision is affected by jurisdictional error constituted by a breach of an express or implied condition of a conferral of decision-making authority by a statute which incorporates a requirement of materiality, there are two questions: has an error occurred; and if so, was that error material.
10The inquiry posited by each question is wholly backward-looking. Both questions are to be answered by reference to the decision that was made and, depending on the nature of the error, how that decision was made. Those are facts in respect of which the applicant for judicial review bears the onus of proof on the balance of probabilities. Proof of these facts ought to be neither difficult nor contentious.
11What must be proved to show what decision was made and how it was made will depend upon the nature of the error. In a common case – of which the present is an example – where the error alleged is breach of a condition governing the reasoning to be undertaken by the decision-maker, the applicant’s onus of proving the relevant facts is discharged by nothing more than the tender of the decision-maker’s statement of reasons.
12Where the jurisdictional error alleged is one concerned with the process of the decision making, such as a denial of procedural fairness, what must be proved by the applicant will depend upon the precise error alleged to have occurred in the decision-making process, having regard to any relevant statutory provisions within the applicable legislative framework. Examples of the types of evidence that have been sufficient for establishing the relevant facts in such cases include the appellate record, and evidence of the content of a document or information that was required to be provided as part of the decision-making process.
13The applicant must satisfy the court on the balance of probabilities that the alleged error in fact occurred. Unless the error is of a type such as those identified at [6] above (where the error is always material and therefore jurisdictional), whether the error is, or is not, material is determined by inferences drawn from the evidence adduced on the application.
14The question in these cases is whether the decision that was in fact made could, not would, ‘realistically’ have been different had there been no error. ‘Realistic’ is used to distinguish the assessment of the possibility of a different outcome from one where the possibility is fanciful or improbable. Though the applicant must satisfy the court that the threshold of materiality is met in order to establish that the error is jurisdictional, meeting that threshold is not demanding or onerous.
15What must be shown to demonstrate that an established error meets the threshold of materiality will depend upon the error. In some cases, it will be sufficient to show that there has been an error and that the outcome is consistent with the error having affected the decision. Where the error is a denial of procedural fairness arising from a failure to put the applicant on notice of that fact or issue, the court may readily be able to infer that, if fairly put on notice of that fact or issue, the applicant might have addressed it by way of further evidence or submissions, and that the decision-maker would have approached the applicant’s further evidence or submissions with an open mind. In those cases, it is ‘no easy task’ for the court to be satisfied that the loss of such an opportunity did not deprive the person of the possibility of a successful outcome. Importantly, a court called upon to determine whether the threshold has been met must be careful not to assume the function of the decision-maker: the point at which the line between judicial review and merits review is crossed may not always be clear, but the line must be maintained. This case affords an example.
16In sum, unless there is identified a basis on which it can be affirmatively concluded that the outcome would inevitably have been the same had the error not been made, once an applicant establishes that there has been an error and demonstrates that there exists a realistic possibility that the outcome of the decision could have been different had that error not been made, the threshold of materiality will have been met (and curial relief will be justified subject to any issue of utility or discretion).
In LPDT, the High Court (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ) noted that the Full Court erred in its applications of these principles to the matter before it. In that case, the Full Court of the Federal Court, from which the appeal to the High Court was made, found that the Tribunal had erred in its consideration of whether there was a basis to revoke a cancellation of a visa. The Full Court of the Federal Court found that the Tribunal had erred in its consideration or factors relevant to the cancellation decision, but dismissed the appeal on the basis that the error was not material and therefore not jurisdictional. The plurality (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ) in LPDT then said, at [29]:
29Having found the Tribunal so erred, the Full Court then identified other aspects of the Tribunal’s reasons as bases for assuming that the Tribunal would have adopted a different process of reasoning to the same end and, on that basis, concluded that the error was not material. By way of example, the Full Court reasoned that, ‘even if the Tribunal had concluded that subparagraph (a) was entirely irrelevant and moved on’, the Full Court did not consider that there was a ‘realistic possibility’ that the Tribunal could have found the appellant’s conduct to be merely ‘serious’ in considering the nature and seriousness of his conduct under paras 8.1(2)(a) and 8.1.1(1), or that the weighing exercise under para 8.1.1(1) could have had a ‘favourable outcome’ for the appellant even if the Tribunal did assess his conduct to be ‘serious’. Both of these findings involved the Full Court making assumptions about how the Tribunal would have undertaken the weighing exercise of the matters in para 8.1.1(1). Such approaches should not be adopted. A reviewing court does not engage in a review of the merits of the decision, reconstruct a decision-making process, rework the apparent basis upon which a decision has been made, or rewrite the reasons for decision.
(Emphasis added)
I will now turn to apply these principles to the facts before the court. As stated, in relation to ground 3, the Minister, correctly with respect, concedes an error in the decision making process. In relation to ground 4, I have found an error for the reasons discussed.
The issue in this matter is whether the errors, as found, could have (not would have) realistically resulted in a different outcome had the errors not occurred.
In this case, as a result of the errors in both ground 3 and ground 4, the Authority did not have before it, as part of the review material, the new information the applicant sought to rely upon about his homosexuality and the fear of harm he held on his return to Iran as a result.
Had there been no error, that material and information would have formed part of the review material and would have had to be expressly considered in determining the applicant’s application.
In relation to ground 3, it is submitted for the applicant that the task before the Authority was to determine whether the applicant satisfied the ‘real chance of serious harm’ criteria. Accepting that a decision-maker may find that a ‘real chance of serious harm’ exists even where the risk of harm is below 50%, it is submitted for the applicant that had the Authority not erred and had it considered the new information about the applicant’s claimed homosexuality, it ‘may’ have concluded that he did face a real chance of serious harm as a result.
In addition, in relation to ground 3, it is submitted for the applicant, that had the Authority considered the new information regarding the applicant’s claimed homosexuality, it may have considered whether to exercise its discretion under section 473DC of the Act to get new information about that issue, particularly in circumstances where the applicant’s claim to fear harm based on his homosexuality had not been tested before the delegate as it was a new claim. It is submitted that this is sufficient to make out materiality in relation to ground 3.
Similar arguments are raised by the applicant in relation to ground 4.
It is further submitted for the applicant that the way in which the Authority erroneously considered the applicant’s homosexuality claims by assessing, at that preliminary stage, whether they were true or not, required the Authority to make an assessment of the applicant’s credit. It is submitted that the adverse credibility findings made by the Authority may have affected its general views of the credit of the applicant in relation to the other claims made, including the applicant’s claim to have attended a house church, to be wanted for that reason and the applicant’s claim that he had been detained for three months as a result of his involvement in anti-government protests.
It is therefore submitted for the applicant that had the Authority not assessed the veracity of the applicant’s homosexuality claims in undertaking the task required under s 473DD(2)(b) but rather considered whether they were ‘capable of being believed’, then, the Authority may have taken a ‘less severe view’ of the applicant’s credit in relation to the other claims.
As noted by Lee J in SZTFQ v Minister for Immigration and Border Protection [2017] FCA 562:
44It is not realistic to put the various aspects of the appellant’s evidence into hermetically sealed boxes or to approach the reasoning of the Tribunal member on the basis that this is how the evidence was approached. The assessment of credibility is necessarily an impressionistic one, which, if properly formed, takes into account all of the evidence. As the full Court … observed in VAAD v Minister for Immigration and Multicultural Affairs … ‘an assessment of credibility is not necessarily linear’. Put another way, …. as Gleeson CJ commented in Re Refugee Review Tribunal; Ex parte Aala … ‘[d]ecisions as to credibility are often based upon matters of impression, and an unfavourable view taken upon an otherwise minor issue may be decisive.’ …
45To be too confident that emphatic disbelief on one issue would not inform, even subconsciously, the approach taken to weighing other evidence of the person disbelieved is, to my mind, to underplay the complexity of the anatomy of decision-making.
In response, it was submitted for the Minister that in applying the principles as enunciated in LPDT, that:
… it is fanciful to think that, had the Authority considered the new information relating to the applicant’s claimed homosexuality as part of its substantive reasons, there was a realistic outcome of a different decision.[55]
[55] First Respondent’s Outline of Submissions filed 29 May 2024 at paragraph [27].
It is further submitted for the Minister that there is no evidence to suggest that the Authority made credit findings in considering whether to accept the new information regarding the applicant’s homosexuality claims that carried over into the substantive review. Moreover, it is submitted that even if the Authority did make credit findings in considering s 473DD, that of itself does not lead the Authority’s reasoning into error.
I agree.
This is not a case in which in dealing with the substantive claims before it, the Authority made adverse credibility findings. Had the Authority made a general adverse credibility finding, it might be said that that finding was impacted by or influenced by the adverse view the Authority took about the homosexuality claims. That is not the case.
In addition, I accept the submission on behalf of the Minister that in circumstances where the Authority found that the claims made by the applicant about his homosexuality were not capable of belief, there is not a ‘realistic possibility’ of a different outcome had Authority considered that material. It already concluded that the information the applicant sought to rely upon was not capable of being believed. Therefore, had that information passed through the filter of s 473DD and been considered, the Authority’s view of that information has already been expressly stated. That is, it formed the view that it was not capable of being believed.
Nor do I accept the applicant’s submission that had the information provided by him been admitted, the Authority may have sought further information about his claimed homosexuality. The Authority expressly dealt with this issue at paragraph [12] of its reasons, in response to a submission that if the Authority concluded that the requirements of s 473DD were not met, he should be given an opportunity to make further submissions and also that the Authority should consider interviewing him to obtain further information both about his new claims and also as to whether s 473DD is met.
The Authority considered this submission and said:
… It is for the applicant to put forward all his evidence and the role of the IAA is to review the material and consider new information pursuant to s 473DD. In the circumstances of this case, where the applicant has provided new information that I have found must not be considered pursuant to s 473DD, I do not accept I am either required to give notice that I may find s 473DD is not met, nor am I required to invite him to an interview to put forward new claims or provide further information to enable me to be satisfied s 473DD is met.[56]
[56] Authority decision record dated 23 August 2023 at paragraph [12].
Whilst the Authority did not expressly consider whether it ought to exercise its power under s 473DC to get new information, given its expressed views about whether it ought to invite the applicant to an interview or to allow him to provide more information, it is fanciful to suggest that it might have exercised that power.
I therefore accept the submission made by counsel for the Minister that in light of the findings actually made by the Authority, namely not to permit the applicant to provide further information, there was no reasonable prospect that the Authority would have exercised its own power to obtain further information.
For each of these reasons, I find that the errors made in respect of both ground 3 and ground 4, are not material and therefore both grounds fail.
GROUND 5
By ground 5, the applicant asserts that:
5. The IAA misapplied or misconstrued s 473DC in considering whether to get new information.
Particulars
a.The IAA stated it would not exercise s 473DC to get new information because it was not required to exercise s 473DC to get new information regarding the applicant’s new information that did not meet s 473DD.
b.The IAA misconstrued or misapplied s 473DC as only permitting the IAA to get new information if was necessary, required, or would be unreasonable not to.
c.The error was material.
The applicant concedes that the Authority is not required to exercise its powers under s 473DC of the Act. However, it is submitted that the reasons given for not doing so in this case disclose that the reason the Authority did not exercise its broad discretion was because it was not required to do so. However, the applicant submits that the Authority is not confined to exercising its discretion where it is necessary or where it would be unreasonable not to do so.
In those circumstances, it is submitted that the Authority erred and that this error was material.
I do not accept this submission. As the High Court noted in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 (‘Wu Shan Liang’), at [31]:
… the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed … In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. …
Applying these principles, and the observations of the Full Court of the Federal Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456 referred to in Wu Shan Liang, namely that ‘the reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error’.[57]
[57] Wu Shan Liang at [31].
In this case, reading the Authority’s reasons as a whole and fairly, it is clear that the Authority did not misconstrue or misapply the requirements of section 473DC of the Act. Rather, as submitted for the Minister, it is apparent that the Authority was responsive in its reasons to the submissions made by the applicant. So much is clear from the opening sentence of it’s reasons in paragraph [12].
In the applicant’s submissions to the Authority, his representative set out its request for the Authority to consider inviting the applicant to an interview. In that context, the applicant’s representative said:
…
2. In light of the new information provided, the Authority needs to consider seeking interview evidence from [the applicant] to obtain information relating to its finding that the limbs in s 473DD are or are not met.
In DZU16 the Court held that in the circumstances of that case the Authority was required to exercise or consider exercising the power in s 473DC(3) to put the relevant new dispositive issue to [the applicant] because it was legally unreasonable in the circumstances not to do so. In this regard, it is submitted that in the circumstances of this review it would be similarly legally unreasonable for the Authority not to exercise its discretion to seek information from [the applicant] in an interview.[58]
[58] Court book at pages 134 to 135.
It is apparent from the opening sentences in paragraph [12] of the Authority’s reasons that the Authority was summarising these submissions and responding to them. There is no evidence that the Authority misunderstood or misconstrued the requirements of s 473DC of the Act.
For these reasons, ground 5 is not made out.
CONCLUSION
As none of the grounds of review have been made out, the applicant’s application ought be dismissed.
The Minister seeks costs and in circumstances where the applicant’s application has been wholly unsuccessful, a costs order should be made in the Minister’s favour.
For these reasons, I make the orders set out at the commencement of these reasons.
I certify that the preceding one hundred and forty-five (145) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri. Associate:
Dated: 26 September 2024
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