DMG18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 356

FEDERAL CIRCUIT COURT OF AUSTRALIA

DMG18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 356  

File number(s):

MLG 1930 of 2018

Judgment of:

JUDGE A KELLY

Date of judgment:

2 March 2021

Catchwords:

 MIGRATION – protection – safe haven enterprise visa – where applicant claims to be stateless – where the applicant claims a fear of harm in Iran – where the applicant claims injury at the hands of the Basij – where the applicant claims he was at risk of harm from his wife’s family – where both applicants (husband and wife) claim to have no rights in Iran and fear harm as returned asylum seekers – where the applicants’ submissions referred to the drawn out nature of the immigration process and the link between that and anxiety and depression experienced by the second applicant – where the applicants unsuccessfully sought reviews through other avenues – where the Authority was not satisfied that the first applicant was stateless – where the Authority found the applicants were Iranian citizens –application dismissed.

Legislation:

Migration Act 1958 (Cth), ss 65, 473GA, 473GB, 473DC, 473DD.

Cases cited:

Appellant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs  (2003) 236 FCR 593

AUS17 v Minister for Immigration and Border Protection [2020] HCA 37

Carrascalao v Minister for Immigration and Border Protection [2017]  FCAFC 107; 252 FCR 352

Minister for Immigration and Ethnic Affairs  v Wu Shan Liang (1996) 185 CLR 259

Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421

Number of paragraphs:

80

Date of hearing:

16 February 2021

Place:

Melbourne

Counsel for the Applicants:

Self-represented

Counsel for the Respondents:

Mr T Reilly

Solicitor for the Respondents:

Mills Oakley

ORDERS

MLG 1930 of 2018

BETWEEN:

DMG18

First Applicant

DMH18

Second Applicant

DMI18 (and another named in the Schedule)

Third Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	JUDGE A KELLY
DATE OF ORDER:	2 MARCH 2021

THE COURT ORDERS THAT:

1.Pursuant to ss 67-68 of the Federal Circuit Court of Australia Act 1999 (Cth), direct that the parties be allowed to appear and to make submissions before the court via audio and video link.

2.The amended application dated 27 January 2021 be dismissed.

3.The first and second applicants pay the costs of the first respondent as agreed or assessed.

REASONS FOR JUDGMENT

JUDGE A KELLY:

1. By amended application dated 27 January 2021, the applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 30 May 2018 affirming a decision of a delegate of the first respondent (Minister) refusing to grant him a Safe Have Enterprise visa (SHEV) pursuant to s 65 of the Migration Act 1958 (Act).

2. The application should be dismissed. In summary, I have concluded that the Authority did not err in the approach taken to its evaluation whether the requirements of s 473DD(b) were met. Nor did it fail to consider the information supplied to it.

   Background

3. The first applicant, a male aged 32 years claimed to be stateless, was born in Tehran, Iran, is of Faili Kurdish ethnicity, identified as a Shia Muslim and is married to the second applicant. The second applicant, aged 31 years, claimed to be of Arab ethnicity from the city of Ahwaz in Iran.  They have two children, the third and fourth applicants each of whom were born in Australia in 2011 and 2013. 

4. The husband and wife (applicants) first came to Australia as unauthorised maritime arrivals in April 2010 following which they attended an entry interview.

   Claims to protection

5. The first and second applicants each made claims for protection.  The third and fourth applicants relied on their parents' claims as members of their family unit but made no separate claims for protection.  The summary of those claims below is drawn largely from the Minister’s submissions. 

6. As a stateless Faili Kurd, the first applicant claimed to live in constant fear of harm in Iran.  He was deprived of his basic human rights and his freedom of movement was very limited.  He was unable to learn about his Faili Kurdish culture and traditions or speak his language in Iran.

7. The first applicant claimed that he was not afforded Iranian citizenship.  The Iranian authorities provided his family with green cards and later, with white cards.  He was unable to undertake formal schooling.

8. After the death of his father (which occurred when the first applicant was aged nine), he was required to work illegally as a street vendor to support his mother and brother.  He claimed that the authorities would harass him, beat him, take his goods, refuse to return them and that this happened many times.

9. The first applicant claimed that in 2008, he had tried to renew his white card but the authorities refused and he was told to go back to Iraq.  Without it, his life became increasingly difficult and he felt like a prisoner.

10. The first and second applicants met in 2008.  Shortly after they were approached in the park by the Basij.  They said they were married, but when they could not produce documents the first applicant was searched.  The Basij found his white card and hit and slapped him and he was badly injured.  When the first applicant approached the second applicant to make his proposal of marriage, the second applicant's father refused the proposal upon realising that the first applicant was a stateless Faili Kurd.  After the father began abusing them, they left the house.   At a later time, when the second applicant told her father she loved the first applicant and wanted to marry him, the father became very upset and slapped her very hard, damaging her right ear.

11. Some two weeks later, the first applicant was attacked in the street and beaten by the second applicant’s brothers and cousins who used a stick and a machete, hitting him in the head and as a result he needed stitches.

12. Although the applicants tried to hide their relationship and reduced their contact, eventually, the second applicant’s father agreed to the marriage after the second applicant threatened to kill herself.  The parties had a religious marriage ceremony but could not officially register their marriage due to the first applicant's statelessness.  After the wedding, the second applicant moved into the first applicant's house to live with him, his mother and brother.

13. Later, the second applicant’s two brothers found out about the marriage and started targeting both of the applicants in an attempt to break up their marriage.  The applicants claimed that out of fear for their lives, they moved to Abadan where they had no problems for approximately ten months.

14. The applicants claimed that at some point the second applicant's sister told her that her family had seen them in the market place and that they should leave as her family were coming after them.  As the applicants felt there was nowhere safe to live, they decided they had to leave Iran.  Additionally, the applicants were regularly harassed by the Basij as they had no documents to confirm their marriage.  They were unable to get any documents but saved enough money to buy wedding rings to show they were married.

15. The applicants obtained assistance from a people smuggler to leave Iran with the first applicant departing Iran prior to the second applicant.  They met up in Indonesia and travelled to Australia together.

16. Since their departure, the first applicant’s brother informed him that, in 2014, the second applicants’ family approached him and questioned him about the first applicant’s whereabouts.  They threatened to harm him in order to punish the first applicant for stealing their daughter.

17. The first applicant’s brother has also faced ongoing issues from the Iranian authorities.  He was detained by them and since his release he is being monitored.

18. The first applicant believes that the second applicant’s family have reported him to the authorities for abducting their daughter and that his brother assisted them to escape.

19. Due to his race and statelessness, the first applicant will continue to be subjected to serious harm, persecution and systematic discrimination.

20. Both applicants would be subjected to serious harm, torture, cruel, inhuman and degrading treatment and punishment and they fear being killed by the Iranian authorities or the second applicant’s family.

21. The second applicant feared that, as a woman, she had no rights in Iran and would not be able to stand up for herself against her family, the wider community or the authorities.

22. The applicants claim that they cannot relocate as the first applicant is stateless and cannot freely move around, the secondary applicant is an Arab from Ahwaz and would be treated with a high level of suspicion, and without family support, they would be at risk of exploitation and serious harm.

23. The applicants also feared that as returned failed asylum seekers they would be detained at the airport and subsequently harmed, particularly because their details were disclosed on the Department’s website in the 2014 data breach, and because their children have Australian birth certificates.

24. Each of the first and second applicants made statutory declarations and other statements in support of their applications and which I have considered. 

    Processing of Applications

25. On 24 September 2010, a delegate of the Minister advised the applicants that following a Refugee Status Assessment, it had been determined they did not satisfy the ‘refugee’ criteria as defined by the 1951 Convention and 1967 Protocol relating to the Status of Refugees.  They were advised of their right to apply for an Independent Merits Review (IMR) and did so.  On 14 February 2012, a recommendation was made on such review that the applicants did not meet the criterion for protection in s 36(2) of the Act.

26. On 24 July 2012, the applicants’ lawyers applied for ministerial intervention in relation to their visa applications.  It appears that reconsideration of the IMR decision was also sought.  A particularly detailed submission was lodged in support of the application for intervention.  On a date which is not apparent, a director of the ministerial intervention section of the Minister’s Department invited the applicants to furnish any further information in support of their application to the Department.  However, on 6 December 2012, a delegate was not satisfied that the application met the relevant ministerial guidance and made a decision that it not be referred for consideration.

27. The Minister allowed the applicants to lodge a new application because it was ascertained that in 2014 they had been included in a Departmental data breach.

28. On 20 February 2015, the applicants’ lawyer transmitted a further submission to the Department in which passing reference was made to guidance notes on credibility and of the need to be mindful that applicants in an unfamiliar environment may experience bewilderment and anxiety.  Attached to the submission was a report of a consultant psychiatrist who had seen the second applicant in January 2013 (at a time when she was 17 weeks into the term of her second pregnancy, and then caring for her son aged 2½ years).  The report provided a detailed history which I have examined.  The psychiatrist found that the second applicant presented as depressed with ideas of hopelessness but with no suicidal ideation and made a diagnosis of severe depression with psychotic symptoms and many features of post-traumatic stress disorder which was considered as having “emerged over a period of time in contact with her witnessing of her husband was (sic) being assaulted, fear of persecution on return and ongoing rejections of her refugee visa status that is contributing to [an] increasing sense of hopelessness.”

29. On 16 March 2015, the applicants were invited to attend an interview for the purposes of an International Treaties Obligations Assessment (ITOA).  In the course of this assessment, over a period of some months, the applicant’s lawyers furnished copies of various identification cards and translations together with a further detailed submission transmitted in August 2015 in which it was said that the second applicant had suffered post-natal depression but that “we note now [that] the applicants are settled and have overcome many of their health issues they are better placed to provide evidence.” 

30. On 23 August 2017, the applicants were invited to apply for a Safe Haven Enterprise (SHEV) visa.  On 15 September 2017, their lawyers lodged a combined SHEV application together with more detailed statements from the applicants and submissions.  While the applicants have been represented by a number of legal firms, it appears that the same lawyer has largely represented them throughout their migration and visa application process.

31. The applicants attended an interview with a delegate of the Minister following which their lawyer provided another detailed submission for consideration.  The delegate later considered that the applicants had provided bogus documents in support of their application and invited comment.  To this the applicants’ lawyers responded on 17 November 2017, stating that the applicants had provided a reasonable explanation for the documents supplied. Then followed a further exchange in relation to the issue of bogus documents.

    Delegate’s decision

32. On 17 January 2018, a delegate of the Minister refused the visa applications and provided detailed reasons for that decision. The delegate’s findings included the following: (a) the first applicant’s white card showed evidence of being photo shopped; (b) the first applicant’s white card stated that he was permitted to reside in Tehran until 15 August 2006; however, he claimed that he left Tehran approximately one year after his father’s death in 1995.  This meant that he had already been living in Ahwaz for ten years at the time of the expiry of his white card in 2006.  If the first applicant had been living in Ahwaz in 2005, the first applicant’s white card should have stated that he had permission to live in Ahwaz, not Tehran; (c) the delegate attached no weight to certain documents as evidence of the first applicant’s identity, nationality or citizenship; (d) the delegate was not satisfied the first applicant could not contact his family; (e) the delegate was not satisfied the first applicant was stateless or a Faili Kurd, but was in fact an Iranian citizen and held significant concerns in relation to his credibility; (f) the delegate accepted that the second applicant was an Arab Iranian citizen but shared concerns identified in an earlier ITOA interview, and by other delegates, whether her family was in fact opposed to her marriage; (g) consideration was given to the parties’ post-interview submission; (h) the delegate concluded that the applicants had fabricated the claim to fear harm from the second applicant’s family on the basis of the first applicant being a stateless Faili Kurd; (i) the delegate identified that the accounts given by the applicants as to their reasons for departing Iran were contradictory; (j) the applicants had departed Iran on genuine Iranian passports; (k) neither applicant was entitled to protection.

    Authority’s review

33. On 23 January 2018, the delegate’s decision was referred to the Authority for fast track review and on 31 January 2018, they appointed lawyers to represent them upon such review.

34. On 15 February 2018, the applicants’ representative filed submissions in support of the application.  The penultimate paragraph of those submissions referred to the drawn out nature of the immigration process and the likelihood of stress that this would place upon the applicants.  Attached to the submission was a medical certificate upon which reliance was placed for a submission that it was conceivable the applicants had encountered difficulty in their recall of information.  The attached medical certificate, dated 14 February 2018 (medical certificate), stated that the second applicant was suffering from anxiety and depression and would be consulting a psychologist for treatment.

35. On 31 May 2018, the Authority made a decision affirming the decision to refuse the visa application.  In affirming the decision to refuse the visa, the Authority provided a statement of reasons for doing so (Reasons).

36. The Authority had regard to the material given by the Secretary under s 473CB of the Act and insofar as the applicants’ submissions dated 15 February 2018 did not comprise new information they were considered.

37. Relevantly to the grounds of review, the Authority also addressed the second applicant’s medical certificate and this is examined below.

38. The Authority noted that the applicants had been interviewed separately on 30 October 2017 in respect of their SHEV application and that during those interviews they had been informed that the first applicant’s claimed identity as a stateless Faili Kurd had not been accepted in past assessments, and that their marriage claims had also been found to not be credible.  Adverse information arising from previous interviews and applications was put to the applicants during their interviews in the presence of their lawyer who then made written post-interview submissions which were also considered.

39. The Authority was mindful of the applicants’ submissions as made both to the Department and the IAA to the effect that the anomalies in the applicant’s evidence were minor and attributable to a range of factors including their education, their multiple interviews in respect of their claims, stress, anxiety and a protracted immigration process. The Authority was not satisfied that the cumulative anomalies detailed in this decision were minor, or that they were attributable to the characteristics claimed: [18], [27], [28], [36], [62].

40. Upon the whole of the evidence the Authority was not satisfied that the first applicant was stateless or of Faili Kurd ethnicity and found that the applicants were Iranians citizens and had not departed Iran using fraudulent Iraqi passports. The Authority did not accept that the second applicant’s family members were opposed to their marriage or had threatened them in the manner that they claimed: [63]. It found that the applicants were not persons to whom Australia owed protection obligations, and affirmed the decision on review.

    Procedural history

41. On 4 July 2018, the applicants’ filed an originating application for judicial review of the Authority’s decision together with an affidavit affirmed by the first applicant to which he exhibited a copy of Reasons but adduced no further evidence in support of the application for judicial review.  

42. By a response dated 10 August 2018, the Minister opposed the relief sought, doing so on the basis that no arguable case for relief was demonstrated.

43. The application for review was replaced by an amended application filed on 27 January 2021, by which the original grounds of review were abandoned and replaced by two further grounds of review.  In addition, and in contrast with the original application, by the amended application an order was sought for an extension of time.  It was agreed no such extension was necessary.

44. Further, in the course of preparation for the hearing it emerged that the third applicant (the elder child and son) may have been granted Australian citizenship rendering his application otiose.  The Minister was not immediately able to clarify the situation.  The second applicant stated that although her son had been in Australia for 10 years and was now eligible to become an Australian citizen, this had not yet occurred.  A suggestion which had been made (at a point when the applicants were legally represented), that the third applicant should discontinue his application was not addressed further.  I proceed on the basis that all applicants were necessary parties upon the application for review.

1. On 27 January 2021, the applicants’ submissions were filed and which submissions had been prepared by counsel with particular experience in relation to judicial review and the operation of the Act.  I have examined them.

2. On 10 February 2021, a Notice of Withdrawal was filed on behalf of the legal representative of the applicants.

3. The applicants were assisted during the course of the hearing by an interpreter but indicated they were prepared to rely upon the written submissions of their former counsel.  In a reply submission the second applicant stated that her mental health was important, particularly to the raising of a happy family.

   Consideration

4. As the applicants were self-represented before me, I have examined the materials on the court book, the decisions of each of the delegate and Authority and the application for judicial review. 

5. The amended application for review contained two grounds of review.  Although each of those grounds related solely to the second applicant, commendably, counsel for the Minister properly submitted that the success or failure of all applications rose or fell as a whole.

   Ground 1

6. Ground 1, as amended, reads:

   The [Authority] erred in its assessment of s 473DD(b) of the [Act].

   Particulars

   a.The Authority found that the proposed new information met
   s 473DD(b)(i), but not (b)(ii), and nonetheless found that the new information failed to meet s 473DD(b) overall (Reasons, 4).

   b.That treats the two limbs as cumulative, when they are alternative.

   c. Contrary to the conclusion of the IAA, the new information met
   s 473DD(b) overall on the Authority’s own findings.  Had that been understood by the Authority, it might realistically have influenced the analysis of s 473DD(a), and in turn, led to the receipt of that information.

   Submissions:

7. The applicants submitted that the Authority had erred in its assessment of s 473DD(b) in finding that proposed new information met par 473DD(b)(i), but not (b)(ii), and nonetheless in finding that such new information failed to meet par 473DD(b) overall. The gravamen of the submission was that the Authority had treated the two limbs of par 473DD(b)(i)-(ii) as being cumulative, when they are alternative. It was submitted that contrary to the Authority’s conclusion, the new information met par 473DD(b) overall on its own findings and that, had this been properly understood, it might realistically have influenced the analysis of par 473DD(a), and so led to the receipt of that information.

8. It was further submitted that having regard to the true seriousness of the wife’s mental ill-health, receipt of the new information might realistically have persuaded the Authority to notice a claim potentially arising on the materials, related to her capacity to resume life in Iran as a person with such ill-health, and the misfortune she might suffer accordingly.

9. The Minister submitted that the Authority had not erred in its assessment at [4] of whether par 473DD(b) was met in relation to medical evidence concerning the second applicant by treating the two limbs of par 473DD(b) as cumulative rather than alternatives and that this was not a fair reading of the Reasons.

10. It was further submitted for the Minister that if any error be demonstrated (which was denied),  the first ground of review must also fail as the Reasons made clear at [4] that the new information would not have affected consideration of the second applicant’s claims.  Accordingly any error would not be material as there is not a realistic possibility that it might have led to a different decision by the Authority if it had considered it.[1]

    [1]Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, [46-48].

    Resolution

11. By s 65 of the Act, after considering a valid application for a visa, the Minister must either grant or refuse such application depending upon whether it satisfies or does not satisfy the criteria for such visa.

12. Part 7AA of the Act which concerns a Fast track review process in relation to certain protection visa applications, is arranged in eight divisions comprising ss 473BA – 473JF.  As relevant to the present application Div 3 of Pt 7AA concerns the Conduct of review, and with ss 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Authority. The scheme of such conduct of review is that, ordinarily, the review should be conducted on the papers and that it should not consider new information except in exceptional circumstances: Act, s 473DD. Section 473DD reads:

    For the purpose of making a decision in relation to a fast track reviewable decision, the [Authority] must not consider any in new information unless:

    (a)the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

    (b)the referred applicant satisfies 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.

    It is self-evident that pars 473DD(b)(i) and (ii) are framed in the alternative.

13. For the purposes of Div 3, ‘new information’ comprises any documents or information that were not before the Minister when the Minister made the decision under s 65 and which the Authority considers may be relevant: Act, s 473 DC(1).

14. Ground 1 focuses upon the reasoning at [4] in which the Authority stated, with reference to the medical certificate, that the second applicant was suffering due to anxiety and depression and would be consulting a psychologist for treatment of her medical condition. As concerned s 473DD, it reasoned:

    The letter post-dates the delegate’s decision and as such I am satisfied it is new information which was not before the Minister when the decision under review was made.  I am also satisfied that, given the date of the certificate, it could not have been provided to the Minister before the decision was made.  I also accept that it is credible personal information about the Second Applicant to the effect that, as t (sic) 14 February 2018, she is suffering from anxiety and depression and intends to consult a specialist in the future.  Notably, the Second Applicant had previously represented to the Department that she is taking medication for anxiety and depression and to that extent the information in the doctor’s certificate is not new information and has been considered.  However, regarding the information that, as at 14 February 2018 she continues to suffer from those conditions and may seek specialist medical assistance, it is not apparent how that information, if known, may have affected the consideration of the referred applicant’s claims.  On the information before me I am not satisfied that it may have affected the delegate consideration of the referred applicant’s claims, nor am I satisfied that it may have affected mine.  Accordingly, I am not satisfied that section 473 DD (B) is met.  Nor, on the totality of the evidence before me, am I satisfied that there are exceptional circumstances to justify considering the above doctor’s certificate, and I have not considered it.

15. Contrary to the applicants’ submissions I do not accept that on a fair reading of the Reasons, the decision-maker treated the two limbs of sub-par 473DD(b)(i)-(ii) as cumulative, rather than alternative, requirements. 

16. I accept the Minister’s submission that the reasons are only consistent with it finding that par 473DD(b)(i) was satisfied but that par 473DD(b)(ii) was not.  It is readily apparent that the Authority accepted the medical certificate post-dated the delegate’s decision and for that reason had not, and could not have been provided at that time.  Further, on a fair reading of the Reasons the Authority concluded that insofar as the medical certificate indicated the second applicant continued to suffer from anxiety and depression, it was not credible personal information which was not previously known or may have affected the consideration of her claims.

17. The Reasons are not to be read with an eye keenly attuned to error.[2]

    [2] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 271-272.

18. When the Authority then stated that it was not satisfied that s 473DD(b) “is met”, I agree that this should be taken to mean what it had, in substance, already found; namely, that par 473DD(b)(i) was met, but that par 473DD(b)(ii) was not. I also agree in the Minister’s submission that, had the Authority found both sub-paragraphs of s 473DD(b) were not met, it would not have been necessary to consider s 473DD(a), which is what it went on to do. The Authority found that on the totality of the evidence par 473DD(a) was not met and so concluded that it could not consider the new information concerned.

19. The Reasons at [4] thus proceeded, prudently, in accordance with the reasoning in AUS17 v Minister for Immigration and Border Protection.[3]  

    [3] AUS17 v Minister for Immigration and Border Protection [2020] HCA 37, [11]-[12] (Kiefel CJ, Gageler, Keane and Gordon JJ); see also [23] (Edelman J).

20. Insofar as it was submitted that there had been a failure to have regard to the “true seriousness” of the second applicant’s mental health I consider that the submission does not withstand scrutiny.  Without understating the significance of the opinion expressed by the consultant psychiatrist in January 2013, it is clear from the later submission filed in August 2015 that their lawyer considered the applicants were well enough to re-engage in the interview process.  The paucity of evidence in the intervening period, including any new information that had been supplied to the Authority did not support a conclusion that the second applicant’s mental health was of such seriousness that the Authority ought to have “noticed” a claim which had not been made or clearly identified by any of the material in the court book, and in particular, the applicants’ extensive submissions, that may have been grounded upon a suggested incapacity to resume life in Iran as a person with such ill-health, and the misfortune she might suffer accordingly.

21. Ground 1 is rejected.

    Ground 2

22. Ground 2 reads:

    The Authority failed to consider important material in the review, concerning the serious mental ill-health of the wife.

    Particulars

    a.Specifically, the Authority failed to consider the evidence at CB 306-308, in a report from a psychiatrist.

    b.The Authority mentioned in passing at Reasons [42] that there was evidence of her being stressed and on medication.

    c.That is not intellectual engagement with the true condition being represented by the psychiatrist.  It drastically understates the seriousness of her condition, including by omitting reference to evidence of her hearing voices, and the potential impact of such symptoms on the assessment of her credibility or reliability as a witness.

    Submissions

23. Ground 2 focused upon the alleged inattention by the Authority to the 2013 report of the consultant psychiatrist: see at [28] above.

24. The applicants contended that the Authority thereby failed to consider (in the requisite legal sense of giving active intellectual attention), important material in the review, concerning the “serious mental ill-health” of the wife. 

25. The applicants sought to emphasise the many features of that report which, as noted, I have examined.  Again, it was submitted that had this evidence been considered in the lawful sense, the Authority might realistically have “picked up a claim arising on the materials, related to her capacity to resume life in Iran as a person with such ill-health and the misfortune she might suffer.”

26. The Minister submitted that there was no substance in the alleged failure to engage actively in an intellectual sense with the 2013 report, noting that while it had been referred to in a submission by the applicant’s lawyers in 2015, otherwise it had not been referred to.

    Resolution

27. Although there was no reference to the applicable principles, it was implicit in the parties submissions to be common ground that the Authority was obliged to consider the matters before it in a proper, genuine and realistic way which in turn, on review, requires the court to assess whether or not the decision-maker had engaged in an active intellectual process of review: Carrascalao v Minister for Immigration and Border Protection.[4]  As that appeal confirms, a conclusion that an administrative decision-maker has not engaged in an active intellectual process will not be lightly made and must be supported by clear evidence, bearing in mind that the applicants carry the onus of proof.  While earlier authorities supply broad guidance as to the types of circumstances in which such ground of review may be made out, each case will turn on its own particular facts and circumstances.  Further, the particular statutory framework within which a decision-maker is acting may well highlight the importance of giving active consideration to the matter, including, as here, upon a process of fast track review which was undertaken on the papers.

    [4] Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107, [36]-[48], [60] (Griffiths, White and Bromwich JJ).

28. The Authority undertook its consideration of the facts and circumstances of the application under review in some detail at [14]-[66].  As the Reasons confirm, the Authority examined the applicant’s history, marriage claims, Faili Kurd/Iraqi background and documentary evidence.  Insofar as those reasons contain reference to the second applicant’s medical state, when examining the marriage claims, the Authority reasoned at [41]-[42] as follows:

    Similarly, in her ITOA Interview the Second Applicant claimed that she and the Applicant fled Ahwaz for Abadan in the weeks following their marriage because of threats of harm from her family, namely her brothers and cousins.  When asked how they threatened and what they did she repeated ‘they threatened us’.  When asked if the threats were delivered face-to-face she responded ‘I don’t know.  I am very stressed and taking medication and pills.’  When asked if she or her husband were threatened in person she said she does not remember. 

    Given the demonstrated inability of the Applicant and Second Applicant to detail any threats from anyone in the time they resided in the Applicant’s home at an address which was clearly known to the Second Applicant’s parents, I am unable to be satisfied and am not satisfied that the Applicant or Second Applicant were threatened by the Second Applicant’s family after they married on 11 May 2009.  The Second Applicant’s evidence that she was stressed and taking medication does not add weight to the truth of [the] claims.

29. It may be accepted that the reference to the second applicant’s stress and use of medication received passing reference.

30. I consider that the Reasons at [42] do not purport to specifically address the 2013 psychiatrist’s report at all.  In my view it is clear from the Reasons as a whole, and in particular, [41], that the Authority was giving consideration to whether the stress and use of medication added to, or informed, the truth of the claims being made by the applicants that they had been threatened by the second applicant’s brothers and cousins as suggested.

31. Having regard to the nature of the claims that were it, I consider that the Authority did not need to specifically address the 2013 report.  Nor did it need to mention every item of evidence before it.[5] As stated above, the Authority noted that the second applicant had previously represented to the Department that she was taking medication for anxiety and depression: [4].

    [5] Appellant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593, [46].

32. In light of the onus of proof which was carried by the applicants on judicial review, given the report dated from 2013, it was for the second applicant to claim it had some continuing significance before the delegate in 2017 or the Authority in 2018.  Although extensive submissions had been filed throughout the matter, no attempt to bring the content of the 2013 report to the forefront of the claims as were being made before the delegate or, for that matter, the Authority. In the circumstances, the IAA was not obliged to specifically address the 2013 report. 

33. Nor do I accept that the impugned failure to deal with the 2013 report was of such continuing relevance that the matters it addressed could realistically have led to the Authority making a different decision if it had been considered.[6]

    [6] Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, [46]-[48].

34. Ground 2 is rejected.

    Conclusion

35. No jurisdictional error being demonstrated, it follows that the decision is a “privative clause decision” within  the meaning of s 474(2) of the Act.  It follows that the decision is to be treated as being final and conclusive, incapable of challenge or review and not amendable to prerogative relief in this court: Act, s 474(1).

36. For the reasons above, the application for review should be refused.

I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment of Judge A Kelly.

Associate:

Dated:       2 March 2021 

SCHEDULE OF PARTIES

MLG 1930 of 2018
Applicants
Fourth Applicant:	DMJ18