DNP17 v Minister for Immigration
[2018] FCCA 3694
•14 December 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DNP17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3694 |
| Catchwords: MIGRATION – Application to review decision of Immigration Assessment Authority – whether the Authority failed to take into account a relevant consideration or misconstrued or misapplied the phrase “exceptional circumstances” in s.473DD(a) of the Migration Act 1958 (Cth). |
| Legislation: Migration Act 1958 (Cth), ss.5AA, 5H, 5J, 36, 473CB, 473DD, 473DE, 473DF Migration Amendment (Excision from Migration Zone) Act 2001 (Cth) Migration Regulations 1994 (Cth), reg.4.41 |
| Cases cited: Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473 AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111 BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958; (2017) 254 FCR 221 CHF16 v Minister for Immigration and Border Protection [2017] FCAFC 192 DBB16 v Minister for Immigration & Anor [2018] FCAFC 178 DBC16 v Minister for Immigration & Anor [2018] FCCA 1802 DBD16 v Minister for Immigration & Anor [2018] FCCA 1801 Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; (2017) 158 ALD 198 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 SZTUM v Minister for Immigration and Border Protection [2016] FCA 45; (2016) 241 FCR 214 |
| Applicant: | DNP17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 2495 of 2017 |
| Judgment of: | Judge Barnes |
| Hearing date: | 1 December 2017 |
| Date of Last Submission: | 5 September 2018 |
| Delivered at: | Sydney |
| Delivered on: | 14 December 2018 |
REPRESENTATION
| The Applicant: | In person at the hearing. Subsequently Mr Jackson. |
| Counsel for the Respondents: | Mr Johnson |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2495 of 2017
| DNP17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Immigration Assessment Authority (the Authority) made under Part 7AA of the Migration Act 1958 (Cth) (the Act) dated 30 June 2017. The Authority affirmed a decision of a delegate of the First Respondent to refuse to grant the Applicant a protection visa.
The Applicant, a citizen of Iran, arrived in Australia in December 2012. In the record of his entry interview he was said to have claimed he left Iran because he was harassed by the Basij for playing music in his boutique; that they came and took his speakers and the lap-top on which he had many personal things, such as his wife’s birthday and other dates, music and family photos. He claimed they threatened him for playing music and he decided to close the shop down and not continue living in Iran in approximately April/May 2011. When asked whether the Basij had done anything else to him since, he was recorded as stating “No – we moved areas in TEHRAN to avoid them”.
On 26 August 2016 the Applicant applied for a protection visa. At that time he was represented by a solicitor/migration agent from the Refugee Advice & Casework (Aust) Inc (RACS). Both in his entry interview and subsequent protection visa application the Applicant had described his educational history (including attending high school to year 11 and technical training in repairing mobile phones); his employment history (including military service and as a salesman for a wholesaler of men’s clothes from 2005 to 2009; and self-employment in the retail trade from 2010 to 2012 (sic)). In his protection visa application he elaborated on his employment history, including referring to casual work as a private taxi driver from 2010 to 2012.
In a supporting statutory declaration of 19 August 2016 (described as a statement of claims) the Applicant claimed to fear he would be seriously harmed if he returned to Iran because of his Christian religion, his conversion from Islam and because of his perceived anti-Islamic and anti‑government values and political opinions.
Relevantly, he claimed that he had worked in the clothing industry for a long time as a sales assistant at other people’s shops and that from 2010 to 2011 he had owned and worked in a boutique which sold western style men’s clothing. He claimed that in 2010 and 2011 he had experienced substantial discrimination and harassment in his boutique from both the Basij and Tazzirat who were “policing the conduct of the business in observing Islamic values”. He claimed that they came to his boutique often, that the frequency “seemed to relate to when they needed money”, that they demanded money from him and sometimes harassed him and his staff and took his stock. He claimed that they used the excuse that he was playing music (usually Iranian) that they said was non-Islamic and banned to extort money and threaten him. The Applicant claimed that they extorted so much money it was not worth running his shop, that they also took his lap-top and speakers and that about a year before he left Iran he was forced to close it. He claimed that it is “a very depressing thing to be a man without a line of work”, and that after he stopped his work he became very depressed about the fact that he “had not been free to earn a living in Tehran simply because the boutique was perceived to be anti-Islam”. He claimed that he had wanted to leave Iran because he was “sick and tired of living in a country where [he] was not free to earn a living, and live in the way that [he] wanted to”. He claimed that when he left he was disillusioned with Islamic practices and the oppressive nature of living in a theocracy with a religious ruler.
The Applicant also claimed that since his arrival in Australia he had come to identify as a Christian and to believe in Jesus Christ. He claimed that he had “connected with” a church and was attending Bible classes, although he had not yet been baptised. He claimed to fear harm as a convert from Islam to Christianity.
In his statutory declaration the Applicant claimed to fear that if he returned to Iran he would be subject to “similar harassment” to that he had previously experienced “because of [his] perceived anti-Islamic and anti‑government behaviour and beliefs”.
He also claimed to fear that he would be subject to serious harm, including imprisonment or even execution, because he had converted from Islam to Christianity and would be considered an apostate and that he would not be able to practise his Christian religion freely or openly, but would be persecuted, ill-treated and prosecuted for his beliefs and that he could not escape persecution anywhere in Iran.
The Applicant attended an interview with a delegate of the First Respondent. The only evidence before the court as to what occurred in the interview is the delegate’s decision and the Authority’s reasons, as discussed below.
After the interview the Applicant’s representative provided a written submission to the delegate in which it was claimed that the Applicant feared harm from the Iranian civil and military authorities for his Christian religious beliefs as a convert or as an Islamic apostate; for perceived anti-Islamic/anti-government values and political opinions; for an actual anti‑government political opinion based on material he had posted on Facebook; “harassment and abuse for his retail shop”; and that he had also feared being imprisoned, punished and subject to the death penalty for drug crime and his drug addiction. It was claimed that he had posted political material on Facebook over a number of years and that he was genuinely anti-government. The Applicant also made complementary protection claims based on his drug addiction. The submission elaborated on the Applicant’s claims based on Christianity and apostasy, but did not elaborate on his claim to fear harassment and abuse for his retail shop.
The Applicant’s representative provided the delegate with copies of material on the Applicant’s Facebook page, country information and a copy of the Applicant’s health assessment conducted in Villawood Detention Centre where he was undergoing opioid replacement therapy.
Delegate’s Decision
On 16 May 2017 the delegate refused to grant the Applicant a protection visa.
The delegate considered the Applicant’s fitness to participate in the interview in light of his health assessment, the absence of any mental health diagnosis, issues or concerns and the fact that he was undergoing opioid replacement therapy monitoring and management in detention. The delegate recorded that at the interview the Applicant had stated that he was feeling “O.K.” and had confirmed he was happy to proceed with the interview. The delegate was not satisfied that the integrity of the interview was compromised by the Applicant’s prescribed daily dose of methadone, remarking that having observed the Applicant and his responses at interview, he was satisfied that the Applicant understood the questions and answered them appropriately.
The delegate did not accept that the Applicant had any profile with the Iranian authorities when he left Iran (or thereafter) and was not satisfied he faced a real chance of serious harm “because of [his] prior interactions with the Basij”. It had regard to the fact he had never been detained or arrested and that he had no difficulty departing Iran legally, as well as to the fact that he had not responded to an invitation from the delegate to provide more information as to why he believed he was of interest to the Iranian authorities because of his prior interactions with the Basij.
Further, the delegate was not satisfied that the Applicant had genuinely converted to, or even satisfactorily engaged with, Christianity as he claimed. The delegate was of the view that the Applicant had failed to give information freely in clarification of his claims or in a persuasive and convincing manner and that he had been unable to convey information with a sufficient level of detail or commitment.
The delegate accepted that the Applicant did not believe in or practise the Islamic faith, but was not satisfied there was a real chance he would come to the attention of the Iranian authorities or be subjected to harm for this reason. Nor was the delegate satisfied there was a real chance of risk that the Applicant faced serious or significant harm as a failed asylum seeker or because of his drug addiction.
Referral and submission
The matter was referred to the Authority on 24 May 2017. The Applicant was notified of the referral and provided with a copy of the Authority’s Practice Direction.
The Applicant sent a document described as “Submission and new information” (the “submission”) and a copy of a baptism certificate from Hillsong Church dated 28 May 2017 to the Authority. He did not have a migration agent or solicitor acting for him at this time. The Applicant responded to the delegate’s failure to accept that he had a profile with the Iranian authorities and that it followed that he did not face a real chance of serious harm because of his prior interactions with the Basij, as follows:
When it comes to persecution in Iran “the authorities” are very often not directly involved – as was my situation. It is common knowledge that in many cases the unaccountable actions of the ubiquitous Basij make life unbearable for their chosen victims, but the higher authorities never know about it. In other cases families persecute their own members who do not conform to their expectations, but they do not involve the authorities. In other cases personal disputes can escalate to the level of sustained persecution but the authorities may or may not be implicated. In none of these situations is effective and just protection available from the government. People with even more serious situations than the one I was facing have no “profile with Iranian authorities”. Memories are long and this reinforces the lack of logic in the statement “It follows that the applicant does not face a real chance of serious harm because of his prior interactions with the Basij…” I therefore maintain that I would indeed face ongoing serious danger and my claim for protection is well founded.
The submission also addressed other aspects of the delegate’s decision. The Applicant claimed that he had demonstrated a reasonable level of understanding about his faith, including giving clear and sufficient answers to the delegate’s questions. He claimed that he had a reputation as a declared Christian and that this in itself would expose him to danger in Iran from the Basij and the Sepah. He claimed that he should not be expected to adjust his “religious behaviour” (whether as a convert or an apostate) just to avoid danger. He referred to aspects of his evidence to the Authority in support of the proposition that he had demonstrated a reasonable level of understanding about his faith.
In that context, the Applicant claimed that: “After responding to all the questions at the interview my mind was fatigued and beginning to become confused. I could not think clearly to answer anything else.” He went on to refer to other aspects of his evidence about Christianity, to the delegate’s view that he would not be regarded as a Christian in Iran, the delegate’s adverse credibility finding and his failed asylum seeker and drug addiction claims. The Applicant also addressed the delegate’s findings about his “projected behaviour” in Iran, but this aspect of the submission referred only to the Applicant’s claims about Christianity and apostasy.
The decision of the Authority
In its reasons the Authority considered the information before it. It stated that it had had regard to the material referred to it under s.473CB of the Act. While it did not refer to s.473DD of the Act, it is not in dispute that the Authority went on to consider the submission and material provided by the Applicant in light of this provision.
The Authority was of the view that the Applicant’s argument in his submission about the criteria the delegate had applied to assess his evidence in support of his claim to have converted to Christianity and his references to country information in relation to apostasy and conversion amounted to legal argument and not information. It stated that it had had regard to this material.
At paragraph 6 of its reasons the Authority addressed the Applicant’s claim in his submission that “…after responding to all the questions at the interview his mind was fatigued and beginning to become confused and he could not think clearly to answer anything else”. It was satisfied that this was new information, as the Applicant did not claim to feel confused or fatigued towards the end of the protection visa interview.
The Authority took into account that the Applicant “did indicate at the beginning of the interview that he was currently on methadone treatment for his drug addiction but that he also advised the delegate that he was happy to continue with the interview.” It referred to the fact that “[m]idway through the interview he requested a cigarette break and was given two minutes and when the interview resumed the delegate asked the applicant if he was happy to continue with the interview to which he agreed”. In addition, it observed that: “Towards the conclusion of the protection visa interview the applicant was provided a natural justice break during which he spoke to his representative. When the interview resumed neither he nor his representative indicated that he had become confused and could not think clearly to answer any further questions”.
The Authority also stated that it had given consideration to the post-interview submission provided to the delegate by the Applicant’s then legal representative, in relation to which it observed: “Although this submission claimed that the nature of the applicant’s evidence should be understood in light of the fact that he is a Christian person doing his best in difficult circumstances of a drug addiction and medication, the submission does not claim that the applicant was fatigued and became confused throughout or by the end of the interview”. The Authority continued: “Given the applicant had many opportunities to advise the delegate that he had become fatigued and confused and could not think clearly throughout, at the end, and even after the interview I am not satisfied there are exceptional circumstances to justify considering this new information”.
The Authority was satisfied that the Applicant’s certificate of baptism (which post‑dated the delegate’s decision) was new information which was not and could not have been provided to the Minister before the delegate’s decision. The Authority was satisfied that this document was relevant to the Applicant’s claims to have converted to Christianity and that there were exceptional circumstances to justify considering it.
The Authority found that country information cited in the Applicant’s submission from a paper on “Apostasy or Conversion” in relation to treatment of Christians in Iran was new information, as it was not before the delegate. However, as the Authority already had information before it on this subject, it did not consider that there were exceptional circumstances to justify considering this information.
The Authority summarised the Applicant’s claims based on events in 2010 and 2011 as follows:
In Iran he worked in the clothing industry and had his own boutique selling men’s clothing. During 2010 and 2011 he experienced substantial discrimination and harassment by both the Basij and the Tazzirat which police the conduct of businesses in observing Islamic values. He used to play music in his boutique which the authorities called non-Islamic and harassed him because the hair was exposed on his mannequins and used this as an excuse to extort money from, and threaten, him. The authorities would come to his boutique regularly when they needed money. Each time they came they showed him handcuffs, pepper spray and guns and caused him to feel fear. They would sometimes harass his staff and take his stock. On one occasion they came and took his laptop and speakers. It got to the point that it was not worth running his shop and he closed his shop at the end of 2011.
He became very depressed about the fact that he had not been free to earn a living in Tehran simply because his boutique was perceived to be anti-Islamic. He wanted to leave the country because he was sick and tired of living in a country where he was not free to earn a living and live in the way that he wanted to.
The Authority recorded the Applicant’s claim to fear “similar harassment because of his perceived anti-Islamic and anti-government behaviour and beliefs” as well as to his claims based on Christianity, apostasy and drug addiction.
The Authority accepted that the Applicant had owned a men’s clothing boutique in Tehran and that he had been harassed and subject to extortion by members of the Basij and Tazzirat in 2010 and 2011 “because he used to play music in his boutique and because the hair was exposed on the mannequins”. The Authority found that this claim was consistent with reports that corruption in Iran was pervasive. It accepted that the authorities had taken the Applicant’s lap-top and speakers on one occasion and that he was “regularly threatened” by them. It also accepted that “as a result of the harassment” the Applicant was forced to close his shop in late 2011. It accepted that the Applicant decided to leave Iran after becoming depressed about his situation and because he was sick and tired of living in a country where he was “not free to earn a living in (sic) live in the way that he wanted to”. It is apparent that this is a reference to the claim in the Applicant’s statutory declaration of 19 August 2016. The Authority found that the Applicant had raised these claims in relatively consistent detail in his entry interview.
However, the Authority did not accept the Applicant’s claim (said to have been made in his entry interview) that pictures and videos on his lap-top revealed that he had consumed wine. It had regard to the fact that this claim had not been repeated in the protection visa application or in the Applicant’s interview with the delegate. The Authority did not accept that the Applicant was threatened and extorted by the Basij or Tazzirat because they found photos on his lap-top of wine consumption.
Nor did the Authority accept the Applicant’s claim in the protection visa interview that, although he changed his address after closing his shop, the Basij had his father’s address and continued to go there and ask the Applicant for money because he was a source of income for them. It found that this claim was inconsistent with the Applicant’s evidence in his entry interview in response to the question whether the Basij did anything else to him after he closed his shop that: “No we moved areas in Tehran”. The Authority also had regard to the fact the Applicant had not raised this claim in his application for protection. Given the inconsistency in the Applicant’s evidence in this regard, the Authority was satisfied he had exaggerated this aspect of his claim. It did not accept that the officers continued to attempt to or did harass or extort the Applicant after he closed his shop at the end of 2011.
The Authority considered the Applicant’s claim that he would be subjected to “similar” harassment “because of his perceived anti-Islamic and anti-government behaviours and beliefs” if forced to return to Iran as follows (at paragraph 17):
Although I accept that the applicant was harassed and extorted by the Basij and Tazzirat in 2010 and 2011, as I have not accepted that these groups continued to harass and extort him since he closed his shop at the end of 2011, I am not satisfied they continue to maintain an interest in him. The applicant has also not claimed that he would open such a shop again on return to Iran. Given this I am not satisfied the applicant would be of any further interest to these groups if he were to return to Iran. I am not satisfied he faces a real chance of harm from these groups or any other Iranian authorities on return to Iran because he was previously harassed and extorted for anti-Islamic behaviour in his shop.
The Authority summarised the Applicant’s claims in relation to a risk of harm as a Christian convert, his evidence in relation to his development of an interest in Christianity, his knowledge of Christianity and his engagement with the Christian community. Considering the Applicant’s evidence as a whole, the Authority found that while his written statement of claims was relatively comprehensive and detailed, his oral evidence to the delegate was inconsistent with his written evidence and was vague and unconvincing. It stated (at paragraph 24):
In post interview written submissions to the delegate, the applicant’s former representative submitted that, the nature of his evidence should be understood as a Christian person doing his best under difficult circumstances of drug addiction and medication. In assessing the applicant’s credibility I have taken into account these factors and his claim that he has suffers (sic) memory loss as a result of his drug use and that he was on a regular dose of methadone at the time of his protection visa interview. However, the applicant agreed to proceed with the interview and I am satisfied that the applicant understood the majority of questions put to him by the delegate and, on the occasion where he indicated that he did not understand a question, the delegate was able to reword his question and I am satisfied the nature of the applicant’s response reflected his understanding of the question. I also note that his former legal representative submitted a Health Summary from the Clinical Reporting Nurse at Villawood Immigration Detention Centre dated 26 April 2017 which confirmed that the applicant was receiving a daily dose of methadone to treat his drug addiction but that he had no diagnosed mental health illness nor was he presenting with any mental health issues or concerns. Even having considered these factors and even if I accept that the applicant suffers from memory loss as a result of his drug use which may be part of the reason for the inconsistency in his evidence, the fact remains that he has had no real engagement with the Christian community since 2014 and his evidence does not reflect someone who has even independently attempted to gain further knowledge and understanding of the Christian faith. There is also no evidence that, since being on methadone treatment in detention, that he has made any significant effort in this regard and the fact that he was baptised several days after the delegate’s decision raises further concerns about his credibility.
The Authority was also concerned about the Applicant’s general lack of demonstrable deep engagement with his purported new faith, notwithstanding the significance of a decision to abandon Islam for Christianity and the potential personal cost and danger resulting therefrom. It was not satisfied on the evidence before it that the Applicant had genuinely taken such a step.
While the Authority accepted that the Applicant’s evidence reflected some basic knowledge about Christianity and was willing to accept that he had previously attended some Bible classes and that he likely attended church on a few occasions, it did not accept that the Applicant had a genuine interest in Christianity or considered himself to be a Christian. Hence it did not accept that he had advised his family members in Iran of his conversion. The Authority did not accept that the Applicant had attended Bible classes and church in Australia out of a genuine interest in Christianity and found that it was for the purpose of strengthening his claims for protection. Hence it disregarded this conduct under s.5J(6) of the Act.
On the basis of the Hillsong Church baptism certificate the Authority accepted that the Applicant was baptised on 28 May 2017. It noted that he had not previously indicated that he had attended the Hillsong Church or their services in the detention centre. Rather, during the protection visa interview he had claimed that there were no church services in the detention centre. The Authority was also concerned about the timing of the baptism, just over a week after the delegate’s decision. Given this, and the Authority’s concerns in relation to the Applicant’s overall credibility, it was satisfied that the Applicant was baptised for the purpose of strengthening his claims for protection and also disregarded this conduct under s.5J(6) of the Act.
The Authority addressed the fact that the Applicant had provided evidence of an image of Adam and Eve in the Garden of Eden that he had posted on his Facebook page. It was not satisfied that this image was necessarily reflective of a purported Christian faith or that it would be perceived as such by the Iranian authorities.
As the Authority did not accept that the Applicant had a genuine interest in Christianity or that he had converted to Christianity, it was satisfied that he would not seek to practise Christianity, to attend church or to proselytise on return to Iran. It found that this was because of a lack of genuine commitment, rather than any fear of persecution. The Authority was not satisfied that the Applicant would be perceived to be a Christian on his return to Iran and was not satisfied he would face a real chance of harm for these reasons.
The Authority addressed the Applicant’s claim that he hated the Iranian government and that there were anti-government and Christian posts and images on his Facebook page which could potentially be seen by the Iranian authorities. It had regard to country information about limits on the monitoring of online activities in Iran. As it was of the view that the Applicant had no political profile prior to his departure from Iran and had posted only a few items that could be perceived as against the Iranian government, the Authority was not satisfied that there was a real chance the Iranian authorities had identified or would identify and harm him for his past Facebook posts.
Moreover, the Authority was not satisfied that the Applicant would seek to publicise his political opinion on return to Iran. It noted that there was no evidence of similar Facebook posts after 2015 and no evidence that the Applicant had publicised his political opinion while living in Iran or in Australia. It was not satisfied that the Applicant’s limited social media activity in sharing political posts on a Facebook page was indicative of someone who had or intended to develop a public profile in opposition to the Iranian regime. It was satisfied that the Applicant would not publicise his political opinion through other mediums on return to Iran, and that this would be due to a lack of interest, rather than a fear of persecution. The Authority found that even if it accepted that the Applicant would continue to post such material on his Facebook page in the reasonably foreseeable future, it was not satisfied that there was a real chance the Iranian authorities would monitor his Facebook page and that he would face a real chance of harm as a result of such posts.
The Authority accepted that the Applicant was disillusioned with Islamic practices when he left Iran and that he no longer practised Islam. It did not accept his claim that his parents had stopped talking to him because of his purported Christian conversion, although it was willing to accept that the family was religious. It had regard to the fact that the Applicant had not claimed to fear harm from his family because he no longer believed in Islam and was not satisfied he faced a real chance of harm from his family for this reason.
The Authority had regard to country information in relation to apostasy and the circumstances in which perceived apostates were likely to come to the attention of the Iranian authorities. It was not satisfied that the Applicant’s non‑belief in Islam would come to the adverse attention of the community or the Iranian authorities because he would not engage in public manifestations of Shia faith on return to Iran. It had regard to the fact that he had not claimed that he would seek to publicise his religious views on return to Iran. It was not satisfied that his Facebook posts indicated an intention to do so. The Authority was not satisfied that the Applicant would seek to publicise his religious beliefs on return to Iran and found that this was due to lack of interest rather than fear of persecution. It was not satisfied that the Applicant’s religious views had come to the attention of the Iranian authorities or that there was a real chance they would come to their attention on his return to Iran. Hence the Authority was not satisfied the Applicant faced a real chance of harm on return to Iran for not believing in Islam and/or as a perceived apostate.
The Authority considered the risk of harm to the Applicant as a returned failed asylum seeker in light of country information, including the fact that DFAT considered it unlikely the Iranian authorities would “prosecute” someone simply for claiming asylum overseas. The Authority accepted that the Applicant had departed Iran lawfully on his own passport and was not satisfied that he faced a real chance of “prosecuted” on return to Iran for illegal departure or for seeking asylum in Australia. It had regard to the fact that while the Applicant may no longer have his passport, it appeared that he had other documents that would assist in establishing his identity on return to Iran. It was not satisfied there was a real chance he would be questioned for very long on return to Iran for this reason or that such questioning amounted to serious harm. It was not satisfied that the Applicant would be imputed with holding an anti-regime or anti-government opinion in Iran. It was not satisfied that his asylum application would become known to the Iranian authorities on return, that he had a profile of adverse interest to the authorities at the time of his departure or that he would come to their adverse attention on his return. Nor was it satisfied that, even if questioned, the Applicant faced a real chance of harm during any such questioning on return to Iran.
In this context, the Authority reiterated its lack of satisfaction that the Applicant had a profile of adverse interest to the authorities at the time he left Iran and that it did not accept that the authorities would take an adverse interest in him because of his Facebook posts or that they had continued to harass and extort him after he closed his shop in 2011. It was not satisfied that he would come to the adverse attention of the Iranian authorities on return to Iran or that he faced a real chance of harm as a failed asylum seeker from Australia.
The Authority also addressed the Applicant’s claimed risk of harm in Iran as a drug addict. It accepted that the Applicant was addicted to drugs and was taking a daily dose of methadone as therapy. It had regard to medical information from the Health and Medical Services at Villawood Detention Centre in this respect.
The Authority considered country information about the present emphasis of the Iranian authorities on treatment over criminal punishment for drug addicts, the existence of rehabilitation measures and harm reduction interventions and the wide availability of methadone treatment in Iran. It took into account the Applicant’s demonstrated willingness to seek treatment for his drug addiction and the fact that he was receiving treatment. The Authority was not satisfied on the evidence before it that the Applicant would not be able to manage his drug addiction on return to Iran. It found that the claim that he would continue to abuse drugs and would commit crimes and come to the attention of the Iranian authorities and hence face persecutory harm for his drug addiction was speculative. It was not satisfied that the Iranian authorities would be aware of the Applicant’s past drug use in Australia. While the Authority accepted that it was plausible that the Applicant’s brother was upset when he found out the Applicant had been using drugs, it observed that other than this the Applicant had not claimed to fear harm from his family as a result of his drug use. The Authority was satisfied that the possibility the Applicant would encounter harm on his return to Iran in connection with past or possible future drug use was remote and speculative.
The Authority concluded that the Applicant did not meet the requirements of the definition of refugee in s.5H(1) and did not meet the criterion in s.36(2)(a) of the Act.
The Authority considered the complementary protection criterion in light of the fact it had not found that the Applicant would face a real chance of harm as someone who was previously harassed and extorted by the Iranian authorities for anti-Islamic behaviour in his shop; because he had no religion and had renounced Islam; for his political opinion against the Iranian regime; for his Facebook posts; for his past drug use and his drug addiction; or for returning to Iran as a failed asylum seeker from Australia. It found that as real chance “equals” real risk it was also not satisfied that the Applicant would face a real risk of significant harm on return to Iran for these reasons.
The Authority recognised that while it had disregarded the Applicant’s attendance at Bible study classes and church and his Christian baptism in Australia in assessing whether he had a well-founded fear of persecution, it was necessary to take these matters into account in considering whether there was a real risk he would suffer significant harm on return to Iran. However, as it had not accepted that the Applicant had genuinely converted to Christianity, the Authority was not satisfied that he would practise Christianity on return to Iran and was of the view that this would not be because of a fear of harm, but rather because the Applicant was not a committed or genuine Christian.
The Authority did not accept that the Applicant faced a real risk of harm from his relatives in Iran due to his purported conversion or because he had been baptised. It was also not satisfied that the Iranian authorities were aware that the Applicant had attended Bible study classes and church and had been baptised in Australia. Hence the Authority was not satisfied that the Applicant faced a real risk of significant harm on return to Iran as a result of his Bible study, church attendance and Christian baptism in Australia.
Contrary to the Applicant’s claims, on the basis of country information cited, the Authority was not satisfied he would be prevented from receiving proper medication to treat his drug addiction in Iran and, for the reasons already given, was not satisfied he faced a real risk of significant harm on return to Iran by reason of his past or future drug use.
Finally, the Authority found that even if the Applicant was questioned by the Iranian authorities on return to Iran, for the reasons already stated it was not satisfied that he would face a real risk of significant harm during questioning. It did not consider that being questioned amounted to significant harm, as it did not reach the level of pain, suffering or extreme humiliation required to amount to cruel or inhumane treatment or punishment or degrading treatment or punishment or torture and did not involve an arbitrary deprivation of life or the death penalty.
The Authority found that the Applicant’s claims, considered individually and cumulatively, did not give rise to a real risk of significant harm and that he did not meet the criterion in s.36(2)(aa) of the Act.
The Authority affirmed the decision not to grant the Applicant a protection visa.
These Proceedings
The Applicant sought review by application filed on 4 August 2017. He was unrepresented at that time. His application contained a single ground of review to the effect that the Authority had failed to consider “whether a well established reputation in Iran as an apostate represents a well founded reason for fear of persecution, whatever the level of genuineness of the claimed apostasy”.
The First Respondent filed pre-hearing submissions addressing this ground and, consistent with the obligations of a model litigant, also addressed the issue of whether the Authority had erred in its approach to the new information before it.
However at the hearing the Applicant, who appeared for himself, provided two brief written submissions in which he claimed that the Authority had acted unfairly and raised two issues as “possible” grounds of review. One “possible” ground related to the Authority’s consideration of his baptism certificate. The other was a claim that in considering the chance of future harm the Authority did not deal properly with the harassment the Applicant had experienced when he operated a clothing shop.
The Applicant also claimed that the Authority’s decision was very unfair, that he was not happy that his credibility was questioned and that he had had no opportunity to explain matters of concern to the Authority. He indicated that a barrister engaged by friends had suggested the two possible grounds of review, but that he had not been able to obtain funds to pay a barrister and an instructing solicitor to appear and represent him in court. He did not address the ground in his application of 4 August 2017.
As the Applicant had raised fresh grounds at the hearing, the First Respondent was given, and took, the opportunity to file post-hearing submissions in addition to oral submissions. Such post-hearing submissions also supplemented the Minister’s earlier submissions in relation to s.473DD of the Act.
I also made orders giving the Applicant the opportunity to file written submissions in reply to the Minister’s post-hearing submissions. Instead, the court received supplementary written submissions prepared by counsel on behalf of the Applicant addressing two grounds in an attached proposed amended application. Ground 1 reflected the second issue raised by the Applicant at the hearing and was expressed as a suggested failure by the Authority to take into account an integer of the Applicant’s claims. It related to the Authority’s consideration of the chance of future harassment and extortion. It was clarified that it was asserted that the Authority had failed to consider an integer of the Applicant’s claims said to have been raised clearly or squarely on the material before the Authority.
The proposed amended application did not contain a ground reflecting the issue raised at the hearing in relation to the Authority’s consideration of the Applicant’s baptism certificate or the ground in the original application. Instead, ground 2 appeared to “respond” to the Minister’s submissions about s.473DD of the Act (which had not previously been raised or addressed by the Applicant or in his written submissions). In this proposed new ground it was asserted that the Authority had misconstrued or misapplied the phrase “exceptional circumstances” in s.473DD(a) of the Act. This picked up a possible issue that had been raised by the Minister in submissions.
In response to a request from chambers as to whether the First Respondent wished to file written submissions or sought a further hearing in relation to the post-hearing submissions from the Applicant and the proposed amended application, the solicitors for the Minister advised that the Minister did not intend to file any further submissions on the basis that the contentions in the Applicant’s post-hearing submissions (reflected in the new grounds of review) had already been addressed in the First Respondent’s oral and written submissions.
The Minister did not oppose leave being granted to the Applicant to rely on the proposed amended application. In these circumstances, despite this rather unorthodox approach, leave was granted to the Applicant to file and rely on the proposed amended application.
Counsel for the Applicant subsequently advised the court that his previous instructions had been limited to preparing written submissions for the Applicant, but that he was now instructed to represent the Applicant, as required, on a direct access basis.
Before considering the grounds in the amended application on which the Applicant now relies, I note that while judgment was reserved it became apparent that there may be an issue as to the place of the Applicant’s arrival in the migration zone and whether he was an unauthorised maritime arrival for the purposes of the Act, because in his visa application form and entry interview the Applicant had indicated that he arrived on a ship and was intercepted near Ashmore Reef. In light of the decisions of Judge Smith in DBC16 v Minister for Immigration & Anor [2018] FCCA 1802 and DBD16 v Minister for Immigration & Anor [2018] FCCA 1801 and the orders made by the Full Court of the Federal Court in DBB16 v Minister for Immigration & Anor [2018] FCAFC 178 the parties were given the opportunity to make written submissions on this issue.
The First Respondent filed detailed submissions and an affidavit affirmed by Madeleine Victoria Butler, on 17 August 2018. Relevantly, the evidence of Ms Butler, a solicitor employed by the solicitors for the First Respondent, was that the Applicant arrived at Christmas Island on 20 December 2012.
Counsel for the Applicant accepted that the facts were as contended for by the First Respondent and that the Applicant entered Australia by sea at Christmas Island, being an excised offshore place for the purposes of s.5AA(1)(a)(i) of the Act (see the Migration Amendment (Excision from Migration Zone) Act 2001 (Cth)). Hence, he was an unauthorised maritime arrival under the Act and the Authority had jurisdiction to conduct a fast track review of the delegate’s decision to refuse to grant him a protection visa.
Relevant consideration issue
Ground 1 in the amended application is as follows:
The IAA failed to take into account a relevant consideration, in failing to take into account an integer or aspect of the Applicant's claim, and thus erred in the exercise of her jurisdiction.
Particulars
1.1 The IAA accepted that the Applicant was harassed by the Basiji and the Tajirat and was forced to close his shop.
1.2 The question which arose on the evidence was whether or not the reason the Applicant would not open a shop again was because of the harassment and extortion that he feared would result, whether he would be prevented from earning a living because of the threat of that harassment, and whether his inability to earn a living because of that threat amounted to persecutory harm.
1.3 The IAA did not address that question, and its failure to address that question was a failure to take into account a claim which arose on the evidence, and thus a jurisdictional error.
(emphasis in original)
In submissions handed up at the hearing the Applicant contended that the Authority did not deal “properly” with the question of the harassment he experienced when he operated a clothes shop.
In post-hearing written submissions, the Applicant pointed out that the Authority had accepted that harassment and extortion had occurred until he was forced to close the shop. It was submitted that the Authority had concluded that because the harassment and extortion stopped after the Applicant closed the shop and because he had not claimed that he would reopen such a shop again on return to Iran, he would not be subject to harassment and extortion on return. However it was contended that an “obvious” question arose on the evidence before the Authority as to whether or not the reason the Applicant would not open a shop again was because of the harassment and extortion that he feared would result, whether he would be prevented from earning a living because of the threat of that harassment, and whether his inability to earn a living because of that threat amounted to persecutory harm.
The Applicant characterised this asserted error as a failure by the Authority to address an aspect or integer of his claim which arose on the evidence and argument put to it in the sense considered in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [58]-[61]. This was said to give rise to a jurisdictional error as considered in Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 at 259 consisting of a failure to consider a claim which arose on the evidence. It was observed that in Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; (2017) 158 ALD 198 at [79], the Full Court had found that the principles in NABE (No. 2) were applicable to a review by the Authority.
In support of the contention that the asserted claim arose clearly on the material before the Authority, the Applicant relied on the fact that in his statutory declaration of 19 August 2016 he had claimed that as a result of the Basij and Tazzirat’s repeated harassment and extortion he was forced to close his shop about a year before he left Iran and had also stated:
It is a very depressing thing to be a man without a line of work. After I stopped my boutique I became very depressed about the fact I had not been free to earn a living in Tehran simply because the boutique was perceived to be anti-Islamic.
I wanted to leave the country because I was sick and tired of living in a country where I was not free to earn a living, and live in the way that I wanted to.
The Applicant did not raise any issue in relation to the application of principles arising from Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473 which the First Respondent had acknowledged applied to decisions made by the Authority under Part 7AA of the Act (and see BBS16 at [79]-[84]).
The First Respondent submitted that the Authority did not err in its approach to this aspect of the Applicant’s claims and that it had accurately recorded and considered the Applicant’s claims.
Consideration
In NABE (No. 2) the Full Court of the Federal Court stated at [58]:
The review process is inquisitorial rather than adversarial. The Tribunal is required to deal with the case raised by the material or evidence before it — Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157 at 180 [114] (Merkel J). There is authority for the proposition that the Tribunal is not to limit its determination to the ‘case’ articulated by an applicant if evidence and material which it accepts raise a case not articulated — Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 63 (Merkel J); approved in Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at 293–294 (Wilcox and Madgwick JJ). By way of example, if a claim of apprehended persecution is based upon membership of a particular social group the Tribunal may be required in its review function to consider a group definition open on the facts but not expressly advanced by the applicant — Minister for Immigration and Multicultural Affairs v Sarrazola (No 2) (2001) 107 FCR 184 at 196 per Merkel J, Heerey and Sundberg JJ agreeing. It has been suggested that the unarticulated claim must be raised ‘squarely’ on the material available to the Tribunal before it has a statutory duty to consider it — SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 265 at 273 [19] per Cooper J. The use of the adverb ‘squarely’ does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.
The Full Court suggested (at [60]) that Selway J had correctly stated the position in SGBB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 709; (2003) 199 ALR 364 at [18], as follows:
The question, ultimately, is whether the case put by the appellant before the Tribunal has sufficiently raised the relevant issue that the Tribunal should have dealt with it.
These principles apply to the IAA regime. As stated in BBS16 at [79]:
…A body such as the IAA, which is conducting an inquisitorial review process in which there is a claim for protection under s 36(2)(a) of the Act must not only consider and determine the case as articulated by the protection visa applicant, but also do so in relation to an unarticulated claim which is nevertheless raised clearly or squarely on the material before that review body…
However, as the Full Court also observed in NABE (No. 2) at [60], the decision-maker (in this case the Authority) “is not obliged to deal with claims which are not articulated and which do not clearly arise from the materials before it”. Further, their Honours pointed out at [63] that every case “must be considered according to its own circumstances” and concluded at [68]:
…A judgment that the Tribunal has failed to consider a claim not expressly advanced is, as already indicated in these reasons, not lightly to be made. The claim must emerge clearly from the materials before the Tribunal.
These principles were explained by Allsop J (as his Honour then was), in NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 at [15] as follows:
The Full Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263 at [55] — [63] dealt with the question of what claims must be dealt with by the Tribunal to complete its statutorily required task (its jurisdiction) even though they may not be expressly articulated. See also Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 197 ALR 389 394 [24], 408 [95] and Applicant S 395/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 203 ALR 112. From NABE I take it that the Tribunal is not required to consider a claim that is not expressly made or does not arise clearly on the materials before it: NABE at [61]. As the Full Court said at [63] much depends on the circumstances. Whatever adverb or adverbial phrase is used to describe the apparentness of the unarticulated claim, it must, it seems to me, either in fact be appreciated by the Tribunal or, if it is not, arise sufficiently from the material as to require a reasonably competent Tribunal in the circumstances to appreciate its existence. A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy.
In AWT15 v Minister for Immigration and Border Protection [2017] FCA 512 at [67] Barker J summarised the applicable principles in relation to whether a claim “clearly” emerged from the materials before the decision-maker. His Honour observed that a finding that a claim emerged clearly from the materials before the decision-maker was not to be “made lightly” (at [67] and see NABE (No. 2) at [68]) and that “the fact that a claim “might” be seen to arise on the materials is not enough: NABE at [68]” (AWT15 at [67]). Reference was also made to SZTUM v Minister for Immigration and Border Protection [2016] FCA 45; (2016) 241 FCR 214 at [37]-[38] in which Markovic J made the point that for a claim to “emerge clearly” from the materials before the decision-maker it must be based on “established facts”. Barker J also observed (at [67]) that:
…while there is no precise standard for determining whether an unarticulated claim has been “squarely raised”, (MZXLB v Minister for Immigration & Citizenship [2007] FCA 1588 at [14] (Finkelstein J)) a court will be more willing to draw the line in favour of an unrepresented party: Kasupene v Minister for Immigration and Citizenship (2008) 49 AAR 77 at [21] (Flick J).
Accordingly, in determining whether an unarticulated claim of the nature contended for in this ground was “squarely raised” or “clearly” emerged from the materials before the Authority it is necessary to consider the context and circumstances of the case, in particular the way the Applicant’s claims were presented over time. (See AWT15 at [68] and [82]-[85]).
In his entry interview the Applicant was recorded as claiming that he left Iran because he was harassed by the Basij for playing music in his boutique; that they took his lap-top containing personal material and his speakers; and that “they threatened [him] for playing music and [he] decided to close the shop down and not continue living in IRAN; this was approx April/May 2011”. When asked if the Basij did “anything else to [him] since?” he replied “No – we moved areas in TEHRAN to avoid them”. However his reply to the question of what he thought would happen to him if he returned to Iran was simply “I think I could be imprisoned if I returned for leaving the country”. The suggested unarticulated claim relied on in this ground does not emerge clearly from the record of this interview.
The Applicant had the assistance of a solicitor/migration agent from RACS in the formulation of his claims in connection with his protection visa application. His supporting statutory declaration of 19 August 2016 was described as his “statement of claims”. It is this document that the Applicant now claims squarely raised a claim in the terms relied on in this ground.
The Applicant referred in his statutory declaration to the fact he grew up in Tehran and “did work in the clothing industry and driving taxis in Iran”, consistent with the employment history disclosed in his application referred to at [3] above.
In the statutory declaration the Applicant claimed to fear serious harm in the future for reason of his Christian religion and conversion from Islam and his perceived anti-Islamic and anti-government values and political opinion.
Under the heading “[w]hat I fear would happen if I was forced to return to Iran” the Applicant claimed to fear he would be subject to “similar harassment” to that he had experienced in the past “because of [his] perceived anti-Islamic and anti-government behaviour and beliefs”. He also claimed to fear harassment, surveillance, imprisonment or being killed as an apostate or Christian. He made no claim about what he would, or would not, do in the future.
Seen in context, the observation by the Applicant in the statutory declaration that “it is a depressing thing to be a man without a line of work” referred to his state of mind after he was forced to close his shop. He explained that he “became very depressed about the fact that [he] had not been free to earn a living in Tehran simply because the boutique was perceived to be anti-Islamic” and claimed that he had “wanted to leave [Iran] because I was sick and tired of living in a country where I was not free to earn a living, and live in the way that I wanted to.”
However the assertion about being “a man without a line of work” is also to be seen in light of the fact that the Applicant had disclosed a history of employment other than as owner and operator of the men’s wear shop. His claim that he had “not been free to earn a living” in Tehran related to his situation when he closed his shop and reflected the fact that he claimed the harassment was because he played music in the boutique which was seen as anti-Islamic. Notably, he claimed to fear future harassment because of an existing profile in circumstances where he claimed that such harassment had continued after he closed the shop (as discussed in the Authority’s reasons).
The Applicant did claim, in this context, that he was not free to earn a living and live in the way that he wanted. However I am not satisfied that the assertions in the statutory declaration are such as to clearly or squarely give rise to unarticulated claims that the Applicant would not open “a shop” (that is, any shop) on return to Iran because of the harassment and extortion he feared would result and also that he would therefore be prevented from earning a living because of the threat of harassment such as to amount to persecutory harm as contended for in this ground.
Such a potential claim has now been articulated, but does not arise “tolerably” clearly from the statutory declaration such as to require a reasonably competent decision-maker in the circumstances to appreciate its existence (see NAVK at [15]). As pointed out in AWT15 at [67], the fact that a claim “might” be seen to arise on the materials before a decision-maker is not enough. Further it must be based on established facts and in this case the Applicant’s claim to fear “similar harassment” reflected his claim that he had experienced ongoing harassment after he closed his shop which was not accepted by the delegate or the Authority. Moreover, there is nothing in the delegate’s account of the interview or the post-interview submission to the Department from the Applicant’s representative to support the view that such an unarticulated claim arose clearly or squarely on the material before the Authority.
In particular, it is notable that the Applicant’s claim in his representative’s submission to the delegate was expressed as a fear of “harassment and abuse for his retail shop” (that is, “ongoing” harassment for what had occurred in the past in circumstances in which the Applicant claimed to the delegate that he was a person of interest to the Iranian authorities when he left Iran and that his current fear was based on his previous problems with the Basij). This claim was made when the Applicant was represented.
I also note that the delegate recorded that he had put to the Applicant that he was not of interest to the authorities when he left Iran and that it was unclear why his previous issues with the Basij presented a current fear of him returning to Iran. The delegate recorded that in response the Applicant had stated that he had avoided being imprisoned in Iran by bribing the Basij.
Further, despite being invited (at a time when he was represented) to offer more information to the delegate as to why he believed he was a person of interest to the Iranian authorities because of his prior interactions with the Basij, according to the delegate the Applicant had no further comments to make.
I have borne in mind that the Applicant was not represented at the time of his submission to the Authority. However there is nothing in the submission that supports the contention that a claim of the nature contended for in ground 1 squarely or clearly arose on the material before the Authority. The generally expressed suggestion by the Applicant that “in many cases the unaccountable actions of the ubiquitous Basij make life unbearable for their chosen victims, but the higher authorities never know about it” took issue with the delegate’s view that he did not have a pre-existing “profile” with the authorities and so did not face a real chance of serious harm because of his prior interactions with the Basij (as he had claimed to the delegate).
The Authority’s finding that the Applicant had not claimed he would open “such a shop” has not been shown to be a finding that was not open on the evidence. The Applicant did not make, and the material did not squarely or clearly raise a claim that he would not open a shop again because of a fear of harassment and/or extortion and that he would therefore be unable in the future to earn a living.
Indeed, even if (contrary to my view), a claim that the Applicant would not open a shop again because of a fear of harassment could be said to emerge clearly from the material before the Authority, such material does not go so far as to raise tolerably clearly (see NAVK), or squarely, a claim based on established facts (see SZTUM), that this would result in a future inability to earn a living because of that threat such as to amount to persecutory harm, particularly given the Applicant’s extensive acknowledged employment history apart from his ownership of the shop.
As the Authority recorded, in his statutory declaration the Applicant had claimed that if he was forced to return to Iran he feared he would be subjected to “similar harassment” to that which he had “previously experienced because of [his] perceived anti‑Islamic and anti-government behaviour and beliefs”. The Authority addressed the integers of this claim in light of the fact that, while it accepted there had been past harassment and extortion in 2010 and 2011 while the Applicant operated his shop and that as a result of this harassment he was forced to close his shop, it did not accept that the Basij or Tazzirat had continued to harass or extort the Applicant after he closed down his shop at the end of 2011 (as he had claimed in his protection visa interview). This is not a case in which, based on the material before it and the findings which flowed from such material, the Authority had to consider the posited claim (cf BBS16 at [79]-[83]). It has not been established that the Authority misunderstood, misconstrued or failed to consider an integer of the Applicant’s claims.
I am not satisfied that the “claim” now propounded in ground 1 arose clearly or squarely on the established facts and contentions before the Authority such that the Authority should have dealt with it (see NABE (No. 2) at [58]).
This ground is not made out.
The new information ground
The second ground in the amended application is as follows:
The IAA misconstrued or misapplied the phrase “exceptional circumstances” in s 473DD(a) of the Migration Act 1958 (Cth) and thus erred in the exercise of its jurisdiction.
Particulars
2.1 In considering whether there were exceptional circumstances to justify the admission of information which would help to explain omissions or inconsistencies in evidence which the Applicant gave to (sic) in his protection visa interview, the IAA considered only what information was new, and whether the Applicant had provided it at the earliest opportunity, thus failing to consider all of the considerations relevant to the exercise of her discretion.
The particular is expressed in terms of whether circumstances justified “the admission” of information. It is clearly intended to be a reference to whether the Authority erred in determining whether it could “consider” new information within s.473DD of the Act, which is as follows:
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 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 claim.
The Applicant submitted that the Authority had erred in the manner in which it dealt with the claim in his submission to the Authority “that after responding to all the questions at the interview his mind was fatigued and beginning to become confused and he could not think clearly to answer anything else”.
In paragraph 6 of its reasons, the Authority considered this information as follows:
The applicant claims that after responding to all the questions at the interview his mind was fatigued and beginning to become confused and he could not think clearly to answer anything else. I am satisfied that this is new information, as the applicant did not claim to feel fatigued or confused towards the end of the protection visa interview. I have taken into account that the applicant did indicate at the beginning of the interview that he was currently on methadone treatment for his drug addiction but that he also advised the delegate that he was happy to continue with the interview. Midway through the interview he requested a cigarette break and was given two minutes and when the interview resumed the delegate asked the applicant if he was happy to continue with the interview to which he agreed. Towards the conclusion of the protection visa interview the applicant was provided a natural justice break during which he spoke to his representative. When the interview resumed neither he nor his representative indicated that he had become confused and could not think clearly to answer any further questions. I also have given consideration to the post written interview submission provided by his legal representative to the delegate after the interview. Although this submission claimed that the nature of the applicant's evidence should be understood in light of the fact that he is a Christian person doing his best in difficult circumstances of a drug addiction and medication, the submission does not claim that the applicant was fatigued and became confused throughout or by the end of the interview. Given the applicant had many opportunities to advise the delegate that he had become fatigued and confused and could not think clearly throughout, at the end, and even after the interview I am not satisfied there are exceptional circumstances to justify considering this new information.
As indicated, this ground was not raised by the Applicant at the hearing. Rather, somewhat confusingly, it followed the Minister’s pre-hearing submissions in relation to s.473DD of the Act (which had been provided consistent with the obligations of a model litigant) and the supplementary post-hearing submissions addressing the effect of CHF16 v Minister for Immigration and Border Protection [2017] FCAFC 192 and other issues that arose at the hearing.
Before considering this ground, I note that in oral submissions the Applicant claimed that he had told the delegate that he was not feeling well enough to continue the interview. He stated that he had a copy of a CD of his interview with the delegate. He sought the opportunity to file further written submissions (and to provide the CD to the court) in support of such contention. However he did not do so, notwithstanding that he had the benefit of legal assistance and ultimately representation after the hearing. The Applicant’s post-hearing written submissions and the amended application prepared by counsel did not take issue with the Authority’s account of what occurred in his interview with the delegate. No jurisdictional error on the part of the Authority is apparent on this basis.
In post-hearing submissions responding to the First Respondent’s submissions, the Applicant submitted that the Authority had fallen into the same error as that identified by the Full Court in CHF16 in that it had misconstrued the test for consideration of “new information”. The (then proposed) amended application included such a ground and the Applicant addressed aspects of the First Respondent’s earlier submissions in relation to this issue.
In submissions in relation to s.473DD and CHF16 which preceded the Applicant’s reliance on this ground the First Respondent had submitted that the Authority in this case had not fallen into error of the kind considered in BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958; (2017) 254 FCR 221, BBS16 or CHF16.
The First Respondent pointed out that the principal argument advanced by the appellant in CHF16 had been that the Authority had confined its consideration of whether there were exceptional circumstances for the purposes of s.473DD(a) to a finding that the new information in issue in that case related to events that had occurred before the primary decision was made (CHF16 at [19]). The appellant in CHF16 had argued that in proceeding in this way the Authority had “conflated” ss.473DD(a) and 473DD(b) in that it had considered the timing of the events relating to the new information as the only relevant circumstance in determining whether there were exceptional circumstances (see CHF16 at [15]).
The First Respondent acknowledged that on a construction of the Authority's reasons in CHF16 the Full Court had found that the Authority had considered only the fact that the new information which related to events which occurred prior to the primary decision had not been brought forward before (at [44]) and had not considered, for instance, “why” the new information was not brought forward before “or any other circumstances”.
However the First Respondent submitted that, in contrast to the findings of the Authority under consideration in CHF16, in this case the Authority (at paragraph 6 of its reasons) had had regard to the circumstances of the delegate's interview, including the fact that the Applicant and his representative were given breaks throughout the interview, and the fact that at no time, despite having the opportunity to do so, had the Applicant told the delegate that he was fatigued and confused.
It was submitted that this was not a case in which it could be found that in considering s.473DD(a) of the Act the Authority had regard only to the fact that the new information was not brought forward before the delegate's decision. Rather it was contended that the Authority's reasons in the present case demonstrated an appreciation of the requirements of s.473DD.
In response, and in support of ground 2, the Applicant contended that two points emerged from the decision in CHF16 and the authorities to which it referred (see in particular CHF16 and cases cited at [17] and [18]): first, that what needed to be considered by the Authority when determining whether there were “exceptional circumstances” was broad and included the matters referred to in s.473DD(b)(i) and (ii), but that it was not restricted to these matters and extended to all relevant circumstances (see BBS16 at [102]-[104]); and secondly, that s.473DD(b)(ii) extended to information known to the Applicant but not disclosed by the Applicant to the Minister (BBS16 at [106]).
The Applicant submitted that the First Respondent was wrong to suggest that the Authority had “demonstrate[d] an appreciation of the Authority of the requirements of s.473DD” in the manner in which it dealt with “new information” said to be about the Applicant’s “impaired condition” at the interview with the delegate. It was contended that this “new information” was relevant because it could explain omissions and errors in the Applicant's evidence at the interview.
The Applicant suggested that in its reasons the Authority had asked only whether the information was “new” and whether it had been raised at the earliest possible time when determining whether there were “exceptional circumstances” justifying considering the information under s.473DD(a) and that these were considerations that were relevant only to s.473DD(b)(i) of the Act. This was said to amount to a failure to consider all relevant circumstances in the context of s.473DD(a) of the Act. The Applicant contended that “…the IAA considered that the fact that the Applicant did not raise the issue in precisely the same form as it was raised as “new information” (that he was “fatigued and confused”) at the time he (theoretically) could have was determinative of his application.”
The Applicant also submitted (without further elaboration) that it was misleading to quote the remarks in CHF16 at [46] about the formal correctness of the Minister’s submission without quoting the full sentence.
This last contention related to the First Respondent’s observation that while the Full Court had not needed to determine the point, in CHF16 it had found “correct in a formal sense” the Minister’s submission that there was no obligation imposed on the Authority by s.473DD to consider and make findings upon both paragraphs (a) and (b) of s.473DD, once it found that either paragraph was not satisfied. It was in that context that the Full Court had stated in CHF16 at [46]:
…Whether it is possible, as a matter of substance in a given case, to consider all exceptional circumstances without considering whether the new information could not have been provided to the Minister before the Minister made the decision or was credible personal information not previously known which may have affected the consideration of the claims, we prefer to leave to a case in which it is necessary to decide it. In a formal sense, the Minister's submission is correct but, as a matter of substance, it has a tendency to sidestep the real issue.
Consideration
As it appears in the amended application, ground 2 addresses the Authority's consideration of one aspect of the new information provided in the Applicant’s submission of 2 June 2017 and raises the issue of whether the Authority misconstrued or misapplied the phrase “exceptional circumstances” in s.473DD(a) of the Act in considering whether there were exceptional circumstances to justify considering this information.
While the Authority addressed three items of “new” information in its reasons, the amended application and the Applicant’s submissions did not take issue with the Authority's consideration of the baptism certificate or the paper on “Apostasy or Conversion”. The concern raised by this ground was limited to the Authority's consideration of what the Applicant had stated in his submission in addressing perceived shortcomings in his responses to questions at the protection visa interview in relation to his engagement with Christianity and the delegate’s view that he had been “unable to convey information with a sufficient level of detail or commitment”. After expressing his views about the accuracy and reasonableness of his level of understanding of his faith and referring to some aspects of his evidence at the interview (including that while he had confused the date of Easter with Christmas, he was new to Christian and Australian culture) the Applicant stated in his submission to the Authority:
After responding to all the questions at the interview, my mind was fatigued and beginning to become confused. I could not think clearly to answer anything else.
It was this aspect of the submission that the Authority considered to be new information and addressed in paragraph 6 of its reasons. No issue is taken with the finding that this was “new information”.
The Applicant’s contention is that the Authority erred in determining that there were not exceptional circumstances to justify considering this new information, in that it was said to have considered only whether the information was new and whether the Applicant had provided this information at the earliest opportunity. It was submitted that the Authority had considered only the fact that the Applicant did not raise “the issue” in precisely the same form as it was raised in his submission to the Authority (that is, that he was “fatigued and confused”) at the time he could theoretically have raised it and that this was regarded by the Authority as “determinative”.
It appears from the Applicant’s submission (although not the ground itself) that it may be intended to be suggested that it was necessary for the Authority (at least in this case) to address the question of whether this information was credible personal information or information of such a character that had it been known to the Minister's delegate it may have affected the outcome of the Applicant's claim. The Applicant did not otherwise identify any particular relevant matters forming part of “all the circumstances” which were said not to have been considered by the Authority.
In essence, the Applicant’s contention appears to be that insofar as the Authority was said to have focused on the issue of whether the new information was raised at the earliest possible point in time, it adopted an unduly narrow interpretation of “exceptional circumstances” in s.473DD(a) of the Act and erred in failing to consider all the circumstances, including whether this information was information that would help to explain omissions or errors in the evidence the Applicant gave at his interview (and in this sense was credible personal information within s.473DD(b)(ii) of the Act).
An appropriate starting point in considering this issue is the decision of White J in BVZ16. It is also relevant to have regard to BBS16 (in which the Full Court considered BVZ16) before turning to the later decision of CHF16.
In BVZ16 White J addressed the construction of the phrase “exceptional circumstances” in s.473DD(a) of the Act and held at [43] that exceptional circumstances were those which were “out of the ordinary course” and which justified the new information being considered even though it had not been provided to the Minister at the time of the delegate’s decision. White J was of the view (at [41]) that “generally” a consideration of whether exceptional circumstances existed would require consideration of all relevant circumstances, because although no one factor may be exceptional, in combination the circumstances may be such as reasonably may be regarded as exceptional.
His Honour found that the Authority in BVZ16 had adopted an inappropriately narrow understanding of the scope of the term “exceptional circumstances” in s.473DD(a) because it had confined its consideration of whether there were exceptional circumstances to an evaluation of the appellant’s explanation for not having disclosed the information earlier.
In the particular passages from BVZ16 cited in CHF16 at [17] White J stated:
8. As can be seen, s 473DD provides that the IAA “must not consider” new information unless both of two conditions are satisfied. The first is that the IAA be satisfied that there are “exceptional circumstances to justify” considering the new information. The second (which contains alternatives) is that the IAA be satisfied that the new information was not, and could not have been, provided to the Minister before the Minister made the decision, or that it be previously unknown “credible personal information” which, had it been known, may have affected consideration of the appellant’s claim.
9. The requirements of subparas (a) and (b) are cumulative but may nevertheless overlap to some extent. The Authority’s satisfaction that the new information could not have been provided to the Minister at the time of the s 65 decision (subpara (b)(i)) may contribute to its satisfaction that there are exceptional circumstances to justify considering the new information. So also may the Authority’s satisfaction that the new information is credible personal information which had not previously been known (subpara (b)(ii)). Accordingly, one would expect the IAA to consider the subpara (b) matters when considering in a given case whether the circumstances are exceptional. Obviously enough, however, the matters which may contribute to a finding that the circumstances in a particular case are exceptional may extend beyond those specified in subparas (b)(i) and (ii) and it seems improbable that the Authority could be satisfied, by reference to one matter only, that an applicant’s circumstances are not exceptional.
…
36. For these reasons, I respectfully disagree with the conclusion of the FCC Judge on this point. In my opinion, the FCC Judge erred in failing to find that the IAA had considered only the subpara (a) requirement. The FCC Judge had accepted (at [23]) that it would have been erroneous for the IAA not to have considered the subpara (b) requirement. It follows that the FCC Judge should have found jurisdictional error by the IAA in failing to discharge the task of review imposed by s 473DB(1).
37. I would also uphold an additional and related contention of the appellant. This was to the effect that, even if the FCC Judge had been correct in finding that the IAA had addressed s 473DD(b)(i), this would not have completed the IAA’s statutory task, given that subpara (b) is expressed in alternatives. The circumstance that the appellant may not have been able to satisfy subpara (b)(i) did not foreclose him being able to satisfy subpara (b)(ii).
In BBS16 the Full Court of the Federal Court rejected the contention that in BVZ16 White J had misconstrued or misapplied the term “exceptional circumstances” in s.473DD(a) of the Act. The Court agreed (at [104]) that the phrase “exceptional circumstances” was to be given a broad meaning, along the line of circumstances which are unusual or out of the ordinary and that this “necessarily” required that consideration be given to “all the relevant circumstances” in determining whether there were exceptional circumstances. The Full Court endorsed the view of White J that the Authority in BVZ16 had adopted an inappropriately narrow understanding of “exceptional circumstances” and agreed that the requirements of s.473DD(a) and (b) were cumulative but may nevertheless overlap to some extent “with the effect that the IAA’s consideration of either or both of the limbs in subpara (b) may inform the IAA’s satisfaction under subpara (a) as to whether there are exceptional circumstances to justify considering the new information” (at [102]).
The Full Court in BBS16 found that the Authority in that case had also made an error of the nature identified in BVZ16 because its lack of satisfaction that there were exceptional circumstances to justify considering new information was based only on its finding that the appellant had not provided any explanation as to why the new information could not have been provided earlier. The Court pointed to the fact that the Authority in BBS16 had not addressed other matters potentially relevant to whether there were exceptional circumstances, including material before it which explained why the visa applicant had not previously disclosed the new information. The Full Court in BBS16 identified the central issue in that case as whether on a proper and fair reading the Authority had reasoned that there were no exceptional circumstances “simply because the [applicant] had not explained his delay in providing the information” (at [74]).
The passages from BBS16 cited in CHF16 at [18] are as follows:
77. In BVZ16, White J found that the IAA had adopted an inappropriately narrow understanding of the scope of the term “exceptional circumstances” in applying s 473DD. In particular, his Honour found that the IAA was wrong to reason that there were no exceptional circumstances because the rejection of the referral applicant’s explanation for not having disclosed the new information earlier was decisive of the requirement that the circumstances be exceptional. The Minister submitted that the IAA can only consider new information if both ss 473DD(a) and (b) are satisfied. The Minister drew attention to White J’s description of these requirements as “conjunctive”. The Minister submitted, however, that White J erred in his reasoning at [9] and [35]-[36] of BVZ16 in concluding that the IAA was obliged under s 473DD to consider, and make findings on both alternative limbs of s 473DD(b) in order to be satisfied under s 473DD(a). Accordingly, so the Minister submitted, if the IAA is not satisfied as to the matter in (a), it is unnecessary for it to proceed to make findings in relation to either of the limbs in (b).
...
102. We are unpersuaded by the Minister’s contentions that in BVZ16 White J misconstrued or misapplied the term “exceptional circumstances” under s 473DD. We respectfully agree with his Honour’s reasons for concluding that the IAA in that case adopted an inappropriately narrow understanding of that phrase. In particular, we agree with his Honour’s findings and reasons that the requirements of subparas (a) and (b) of s 437DD are cumulative but may nevertheless overlap to some extent, with the effect that the IAA’s consideration of either or both of the limbs in subpara (b) may inform the IAA’s satisfaction under subpara (a) as to whether there are exceptional circumstances to justify considering the new information.
103. That is not to say, however, that the matters in subparas (b)(i) and (ii) are the only matters to be considered by the IAA in determining whether it is satisfied that there are exceptional circumstances to justify considering any new information.
104. As White J explained, the phrase “exceptional circumstances” is to be given a broad meaning, along the lines of circumstances which are unusual or out of the ordinary. This necessarily requires that consideration be given to all the relevant circumstances in determining whether or there are “exceptional circumstances” (see the authorities cited by his Honour at [39]-[41] of BVZ16).
...
106. We also respectfully agree with White J’s conclusion and reasons for rejecting the Minister’s claim in support of his notice of contention in BVZ16 that, on the proper construction of s 473DD(b)(ii), the phrase “which was not previously known” should be construed as meaning “not previously known to [the referred applicant]”. The provision applies to new information which is given to the IAA by a referred applicant which, if it had been known by either the Minister or the referred applicant, may have affected the consideration of the referred applicant’s claims for protection. This is made clear by [29] of the Supplementary Explanatory Memorandum to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 which, in addressing revised paragraph 473DD of the Bill said (emphasis added):
This new provision will extend the types of “new information” that a referred applicant may present to the IAA to include, for example, evidence of significant torture and trauma which, if it had been known by either the Minister or the referred applicant, may have affected consideration of the referred applicant’s asylum claims by the Minister.
...
112. For these reasons, we consider that the IAA made a similar error to that which was identified in BVZ16. Instead of addressing other matters which were potentially relevant to the issue of “exceptional circumstances”, including the first respondent’s explanation as to why he had not previously disclosed his affiliation with AFLA, the IAA reasoned that, because the referred applicant had not provided any explanation as to why the new information could not have been provided earlier, the IAA was not satisfied that there were exceptional circumstances. That reflects a misconstruction and misapplication of s 473DD.
(emphasis in original)
I note that while the Full Court in BBS16 accepted that there may be an overlap between paragraphs (a) and (b) in s.473DD, it did not find that the Authority must always make findings in relation to both paragraphs (a) and (b) in considering whether circumstances meet the requirements of s.473DD(a) of the Act.
In CHF16 the appellants had provided detailed submissions to the Authority about new information, including an explanation as to why the information had not been provided earlier. The Authority was not satisfied that there were exceptional circumstances to justify considering the new information. The appellants submitted that the Authority had adopted an incorrect interpretation of the term “exceptional circumstances” and as a result had failed to consider all their circumstances when deciding whether the circumstances of the case were exceptional within s.473DD(a) (see CHF16 at [16]).
The Full Court in CHF16 set out the detailed submissions the appellants had made to the Authority. It was of the view that the Authority had not taken into consideration all the circumstances of the appellants in deciding whether the circumstances of the case were exceptional. The Court found (at [44]) that the proper and fair reading of the Authority’s reasons was that:
…in considering whether or not it was satisfied that there were exceptional circumstances, it considered only the fact that the new information which related to events which occurred prior to the primary decision being made was not brought forward before. It did not take into account why the new information was not brought forward before or any other circumstances. It did not address itself to whether the material was credible personal information or information of such a character which was not previously known to the Minister and, had it been known, may have affected the consideration of the appellants’ claims. We do not accept the submission on behalf of the Minister that the paragraph should be read as, in effect, containing other reasons for the conclusion of the Authority. In so concluding, we have read the paragraph as a whole and in context.
While the Court posed, but left open, the question of whether it was possible “as a matter of substance” in a given case to consider whether there were exceptional circumstances within s.473DD(a) without considering each of the s.473DD(b) matters, it found (at [46]) that the Minister’s submission that s.473DD did not oblige the Authority to consider and make findings “upon both (a) and (b) once the Authority has found that either (a) or (b) was not satisfied” was correct in a formal sense (and now see Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 353 ALR 600 and AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111). It was unnecessary for the Full Court in CHF16 to decide this issue because the Court was satisfied that the Authority had misunderstood the scope of s.473DD(a).
While CHF16, and the cases cited therein, demonstrate that consideration of the factors in s.473DD(b)(i) and/or s.473DD(b)(ii) may form part of all the circumstances, the requirements of paragraphs (a) and (b)(i) or (ii) are cumulative. Paragraph (b) contains additional preconditions (beyond the exceptional circumstances requirement) that must be met before the Authority can consider new information. Paragraph (b) does not codify what amounts to exceptional circumstances, albeit that, as pointed out in BBS16 at [102], in many cases the factors in s.473DD(b)(i) and/or (b)(ii) will be relevant to the determination of whether there are exceptional circumstances. This will depend on the particular case. However the concept of exceptional circumstances is wide and will not necessarily involve express consideration of all elements of the criteria in s.473DD(b)(i) and/or (ii) of the Act.
In any event, in this case I am not satisfied that the Authority misconstrued or misapplied the exceptional circumstances requirement in s.473DD(a) in the manner contended for by the Applicant. In particular, I am not satisfied that the Authority considered only what information was new and whether the Applicant had provided it at the earliest possible point in time.
The Authority considered all the circumstances of the case on the material before it, including “what occurred at the interview”. It is the case that it took this approach in circumstances where the Applicant had not proffered any explanation for his delay in providing the new information or as to why he had not provided this information to the delegate (cf BBS16 at [112] and see CHF16 at [44]). However, in considering whether there were exceptional circumstances to justify considering this new information, the Authority considered not only whether the information was new information and whether the Applicant had provided it at the earliest opportunity, but also what occurred at the interview which was of potential relevance to the assessment of the Applicant’s oral evidence in circumstances where he was on methadone treatment for his drug addiction.
In particular, the Authority had regard to the fact that while the Applicant had told the delegate at the start of the interview that he was on methadone treatment for his drug addiction, he had also advised he was happy to continue with the interview. The Authority referred to the fact that the Applicant was given a requested cigarette break midway through the interview, after which he again agreed he was happy to continue and that towards the end of the interview he was given a natural justice break, during which he spoke to his representative. The Authority also considered the fact that after the interview resumed (which, as indicated, was towards the end of the interview) neither the Applicant nor his representative indicated that he was fatigued and had become confused, either throughout or by the end of the interview.
The Authority also considered the post-interview submission of the Applicant’s then representative to the delegate that the nature of the Applicant’s evidence should be understood in light of the fact he was a Christian doing his best in difficult circumstances of a drug addiction and medication. It had regard to the fact that this submission did not claim that the Applicant was fatigued and became confused either during or by the end of the interview.
Further, in the submission to the Authority the Applicant did not claim that his fatigue and confusion at the end of the interview with the delegate explained any shortcomings in his answers or otherwise affected his evidence in the interview. While he referred to the fact he had confused the date of Easter with the date of Christmas in the interview (which, it appears, is a reference to the fact that, as the delegate recorded, he had suggested that Jesus’ birthday was 6th January and that Easter was celebrated on 25th December), he also pointed out that he had been able to identify Christmas and Easter as holidays that Christians celebrate, although he did not know the dates. His explanation was that these were “…Australian cultural holidays anyway and the dates are not mentioned in the Bible”. He also explained that he “now” knew Easter fell on different dates every year. In his submission the Applicant suggested generally that he had given the delegate sufficient answers to demonstrate a reasonable level of understanding about his faith. The Applicant did not point to any aspect of his evidence to the delegate that was, or may have been, affected by his fatigue and confusion.
It was in these circumstances that the Authority found that, given that the Applicant had had many opportunities to advise the delegate that he had become fatigued and confused and could not think clearly throughout, at the end, and even after the interview, it was not satisfied that there were exceptional circumstances to justify considering this new information consisting of the Applicant’s claim to the effect that “after” responding to all the questions at the interview, his mind was fatigued and he was “beginning” to become confused and could not think clearly “to answer anything else”.
Despite the absence of a clear express claim that the Applicant’s fatigue and confusion had affected his evidence to the delegate, the Authority considered whether there was evidence of any issue about the Applicant’s state of mind during the interview. Indeed, while the Authority did not make an express finding in respect of s.473DD(b)(ii) of the Act, it considered the evidence before it as to the Applicant’s methadone treatment, his expressed willingness to participate in the interview, the fact he had a requested cigarette break midway through the interview and a natural justice break towards the conclusion of the interview and that he at no stage raised a claim of fatigue or confusion. As indicated, it also had regard to the fact that while the then legal representative for the Applicant had provided a post-interview written submission to the delegate suggesting that the Applicant’s evidence should be understood in light of the fact he was a Christian doing his best “in difficult circumstances of a drug addiction and medication”, that submission did not claim that the Applicant was fatigued and became confused “throughout or by the end of the interview”. It is clear that in this way the Authority turned its mind to whether the Applicant’s claim about his state of mind at the end of the interview was credible personal information which, had it been known, may have affected the consideration of his claims. As it was not satisfied of the matters in s.473DD(a), it was not necessary for it to go on to make a finding about whether either limb of s.473DD(b) was satisfied.
Reading paragraph 6 of the Authority’s reasons as a whole and in light of the nature and extent of the new information provided and the Applicant’s failure to point to any particular consequence of his fatigue and confusion relevant to the evidence he gave in the interview, it is clear that the Authority had regard to all the circumstances in light of the evidence before it, including in relation to the conduct of the interview, in considering whether it was satisfied there were exceptional circumstances to justify considering the new information.
In summary, on a fair and proper reading (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259), the Authority’s reasons demonstrate that it considered all the relevant material before it in determining whether there were exceptional circumstances within s.473DD(a) of the Act. It did not simply proceed on the basis that the only matter that could or would be taken into account was whether the information was raised at the earliest possible time. Its reasons indicate that it considered the conduct of the interview and the opportunities the Applicant had to inform the delegate of any concern about his ability to continue the interview (or that he was ultimately fatigued and confused) both during and after the interview. There was no claim from the Applicant that had this particular information been known it may have affected the consideration of his claims. The Authority nonetheless was clearly alert to the possible relevance of the Applicant’s state of mind and physical condition at the time of the interview.
I am not satisfied that in this case the Authority misconstrued or misapplied the phrase “exceptional circumstances” in s.473DD(a) of the Act. The Authority gave consideration, on the material before it, to whether there were circumstances that took the Applicant’s case out of the usual or ordinary course such as to justify consideration of the particular new information in question. Its reasons show that it gave consideration to all the matters that were potentially relevant to the issue of exceptional circumstances, having regard to the nature and extent of the new information and the evidence before it.
This ground is not made out.
The Baptism Certificate and other issues
At the hearing and in written submissions handed up in court the Applicant also raised an issue relating to the treatment of his baptism having regard to the baptism certificate he had provided to the Authority. While this issue was not reflected in a ground in the subsequent amended application, as the Applicant was self-represented at the time of the hearing I have also considered this and other issues he raised at the hearing.
The Applicant’s brief written submissions acknowledged that the Authority had proceeded on the basis that there were exceptional circumstances to justify the baptism certificate being considered. However issue was taken with the fact that the Authority had been satisfied that the Applicant was baptised for the purpose of strengthening his claims for protection and had found that it was required to disregard his baptism under s.5J(6) of the Act.
The Applicant complained that he was not given the opportunity to explain all the reasons for being baptised and that he had no chance to comment on the Authority’s view that his baptism was for the purpose of strengthening his claims for protection. He also took issue with the fact that the Authority had not alerted him to the possibility that the baptism may be disregarded or invited comment either in writing or at an interview.
The Minister submitted that no jurisdictional error was established in the Authority’s consideration of the Applicant’s baptism.
Paragraph 5J(1)(a) of the Act provides that for the purposes of the application of the Act and the Migration Regulations 1994 (Cth) (the Regulations) to a particular person, the person has a well-founded fear of persecution if the person fears being persecuted for reason of race, religion, nationality, membership of a particular social group or political opinion.
Section 5J(6) of the Act is as follows:
In determining whether the person has a well-founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
As counsel for the First Respondent pointed out, on the basis of the baptism certificate the Authority accepted that the Applicant had been baptised. However, for reasons it gave, it did not accept that the Applicant was a genuine Christian and was satisfied he was baptised for the purpose of strengthening his claims for protection.
It has not been suggested that the Authority erred in its construction of s.5J(6) of the Act. Nor has it been shown that the Authority erred in its application of s.5J(6) of the Act. Insofar as the Applicant’s contention may be taken to reflect an argument that he was baptised because of and as part of his conversion to and involvement in Christianity, the Authority considered, but did not accept, his claim that he had a genuine interest in Christianity or that he had converted to Christianity.
The Authority recognised that the restriction in s.5J(6) of the Act did not apply to the complementary protection criterion. It took into account the Applicant’s baptism in assessing whether there was a real risk he would suffer significant harm on return to Iran, but was not satisfied on the evidence that the Iranian authorities were aware that the Applicant had attended Bible study classes and church and had been baptised, or that there was a real risk they would become aware of this.
If the Applicant’s concern is that the Authority did not give him an opportunity to attend a hearing to explain all his reasons for being baptised, as the First Respondent pointed out, there is no general requirement under Part 7AA of the Act for the Authority to conduct a hearing. There was no obligation on the Authority to give the Applicant a further opportunity to explain all his reasons for being baptised. Nor was the baptism certificate information that was the reason or part of the reason for affirming the fast track review application such as to enliven a s.473DE obligation to give the Applicant an opportunity to give comments in writing or at an interview. It was within the exception in s.473DE(3)(c) of the Act which provides that s.473DE(1) does not apply to new information prescribed by regulation for the purposes of the paragraph. Regulation 4.41 prescribes new information given to the Authority by the referred applicant for the purposes of the review. This is not a case in which an issue arose as to the Authority’s compliance with s.473DF of the Act.
It would have been open to the Applicant to address the purpose or purposes for which he was baptised in his written submission. It is apparent from the Authority’s reasons for decision that it did not mistakenly proceed on the basis that it was precluded by s.473DD of the Act from considering a submission made by or on behalf of the Applicant.
More generally, the Applicant contended that he was denied procedural fairness in relation to the Authority’s finding about his baptism. However, as the First Respondent submitted, the procedural fairness obligations applicable to the Authority are limited. The bare assertions of the Applicant in this respect do not establish that the Authority failed to comply with any such obligation (and see s.473DA(1)).
Further, in circumstances where the Applicant had not previously claimed that he attended the Hillsong Church or their services in the detention centre (but instead had claimed there were no church services in the detention centre) and having regard to the timing of the Applicant’s baptism (just over a week after the delegate’s decision) it was reasonably open to the Authority to consider that, in light of these matters and its concerns in relation to the Applicant’s overall credibility, it was satisfied that he was baptised for the purpose of strengthening his claims for protection and that it was required to disregard this conduct under s.5J(6) of the Act in assessing the claim that he had a well-founded fear of persecution.
In the circumstances of this case and having regard to the applicable statutory regime, the Authority’s failure to provide the Applicant with an opportunity to be heard in relation to the reason or reasons that he was baptised or the possible application of s.5J(6) of the Act, does not demonstrate a failure to comply with an applicable procedure or procedural fairness obligation or amount to legal unreasonableness.
I note, for the sake of completeness, that the Applicant appeared to claim in oral submissions that he had been baptised before the interview with the delegate, but that as he did not have documentary evidence with him at the time of the interview (because it had either not been given to him by the solicitor acting for him at the time or had been lost) he had undergone a second baptism. There is no evidentiary basis for this assertion. To the contrary, the Authority observed that during the protection visa interview the Applicant had claimed that he was supposed to have been baptised on one occasion in 2014, but that the alarm went off in the church so that he could not get baptised that day, and that during that interview the Applicant had not indicated that he had made any other attempt to be baptised since that time (that is, prior to his baptism after the delegate’s decision). The Applicant’s concerns in this respect are not indicative of jurisdictional error on the part of the Authority.
No jurisdictional error has been established in relation to the Authority’s consideration of the Applicant’s baptism or baptism certificate or on the basis of any of the issues raised by the Applicant at the hearing.
As none of the grounds relied on by the Applicant has been established, the application should be dismissed.
I certify that the preceding one hundred and sixty-two (162) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Date: 14 December 2018
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