DTE19 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 726
•14 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DTE19 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 726
File number: SYG 2534 of 2019 Judgment of: JUDGE D HUMPHREYS Date of judgment: 14 August 2024 Catchwords: MIGRATION – Immigration Assessment Authority – Temporary Protection (Class XD) visa – Whether the ground of legal unreasonableness is made out – Whether there was a material error – Application allowed. Legislation: Acts Interpretation Act 1901 (Cth) s 25D)
Migration Act 1958 (Cth) ss 5L, 47CC, 473DD
Cases cited: Assistant Minister for Immigration and Border Protection v Splendido (2019) 271 FCR 595
AWU16 v Minister for Immigration and Border Protection [2020] FCA 513
BDZ17 v Minister for Immigration and Border Protection (2018) 263 FCR 292
BQQ15 v Minister for Home Affairs [2019] FCAFC 218
BTF15 v Minister for Border Protection [2016] FCA 547
DAO16 v Minister for Immigration and Border Protection (2018) 353 ALR 641; [2018] FCAFC 2; 258 FCR 175
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
DQM18 v Minister for Home Affairs (2020) 278 FCR 529
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088
EVI19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 518
Hossain v Minister for Immigration and Border Protection [2018] HCA 34
Islam v Cash (2015) 148 ALD 132
Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11
Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67
Minister for Immigration v Li (2013) 297 ALR 225
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 485; [2010] FCAFC 50
Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs v Viane [2021] HCA 41; 395 ALR 403
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] 144 FCR 1
NAHI v Minister for Immigration& Multicultural & Indigenous Affairs [2004] FCAFC 10
Nuon v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 653
Plaintiff M1/2021 v Minister for Home Affairs (2022) 178 ALD 304; [2022] HCA 17
Plaintiff M1/2022 v Minister for Home Affairs (2022) 96 ALJR 497
Plaintiff S183/2021 v Minister for Home Affairs [2022] HCA 15
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437; [1994] FCA 1253
Selvadurai v Minister for Immigration and Ethnic Affairs (1992) 34 ALD 347
SZHYH v Minister of Immigration and Border Protection (No 3) (2019) 165 ALD 463
James C Hathaway and Michelle Foster, The Law of Refugee Status (Cambridge University Press, 2nd ed, 2014) 40.
Division: Division 2 General Federal Law Number of paragraphs: 87 Date of last submission/s: 8 August 2024 Date of hearing: 24 June 2024 Place: Parramatta Counsel for the Applicant: Ms Baw (Direct brief) Counsel for the Respondents: Mr Johnson Solicitor for the Respondents:
HWL Ebsworth Lawyers
ORDERS
SYG 2534 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DTE19
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
14 AUGUST 2024
THE COURT DECLARES THAT:
1.The recommendation of the Independent Protection Assessment Reviewer was not made in accordance with law, by reason of the ground/s of this application.
THE COURT ORDERS THAT:
2.The decision of the Immigration Assessment Authority be quashed, and the matter be remitted back to the Immigration Assessment Authority.
3.A writ of mandamus be directed to the Immigration Assessment Authority requiring them to re-determine the Applicant's application, according to law.
THE COURT GRANTS:
4.An injunction restraining the Minister, by himself or by his department, officers, delegates or agents, from making the future decision or taking the other action the subject of the proceedings.
THE COURT FURTHER ORDERS THAT:
5.The First Respondent pay the Applicant’s costs fixed in the sum of $7,853.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE D HUMPHREYS
INTRODUCTION
The applicant is an Iranian citizen, who first arrived in Australia as an irregular maritime arrival on or about 17 September 2012. The applicant lodged an application for a Temporary Protection (Class XD) visa (“the visa”) on or about 8 April 2016. On 13 June 2017, a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (“the delegate”) refused to grant the applicant a protection visa.
The applicant was then referred to the Immigration Assessment Authority (“IAA”) for merits review. On 21 December 2017, the IAA affirmed the delegate’s decision. The applicant then sought judicial review at the then Federal Circuit Court of Australia. On 9 July 2019, the Court quashed the first IAA decision and remitted the matter back to the IAA for reconsideration.
On 5 September 2019, a second IAA again affirmed the delegate’s decision. The applicant now seeks judicial review of the second IAA decision.
THE IMMIGRATION ASSESSMENT AUTHORITY’S DECISION
The IAA decision is both lengthy and detailed. Given the history of this matter, and the grounds of judicial review, it is necessary to set out the IAA’s decision in some detail.
At paragraphs [2] - [6], the IAA details new information it considered during the course of the review, including submissions made in July 2017 and July 2019, new country information reports, the applicant’s invalid September 2013 application for a protection visa, and an audio recording of a December 2012 entry interview with the applicant.
Somewhat unusually, the applicant was invited by the IAA to attend an interview. During that interview, the applicant sought to speak about matters involving his sister and his passport. The IAA determined not to accept this information.
The applicant’s claims for protection are set out at [7]. These include that while he was born into a Shia Muslim family, he has never practised Islam and believes only in God. The applicant has been accused of apostasy and being opposed to Iran’s Supreme Leader. If the applicant were returned to Iran, he fears being arrested and possibly executed for apostasy. He does not know if he would be able to not speak his mind. The applicant would never be able to work in a government area. He does not have a passport. If he were to apply for one this would expose him further and call for an explanation.
At [11], the IAA did not find his evidence to be convincing. He gave examples of witnessing women being arrested for not wearing the hijab, and reports of them being later raped by Iranian authorities. The IAA noted while it was an offence for a woman to not wear a hijab, they were usually fined. The IAA was not satisfied that there was a trend for such women to be raped and this claim was contrived by the applicant to strengthen his claims.
The IAA noted that in his protection visa application the applicant stated his sister was stopped on her wedding day for not wearing a hijab. However, a statement by his sister, SI made in July 2019, states that she has always complied with Iran’s dress code and has never been stopped for violating it.
At [13], the applicant claims that his mother’s best friend and her husband (a couple in their 50’s), were sitting in their car when they were arrested by police and detained at a police station until their children were able to produce evidence of their marriage. The IAA was not convinced that a couple in their 50’s would have been arrested if they were just sitting in a car.
At [14], the applicant claimed that his brother, V was out with a Ms S, when they were arrested, taken to a police station, accused of being boyfriend and girlfriend, told that in Islam this was not permitted, and they were forced to marry at the police station. V was forced to pledge an arm and a leg as “mehrieh” (or mahryyeh) and must now live in fear that he could lose his limbs if he was ever divorced from Ms S. The IAA noted that country information did not indicate such practices. Limb amputation is retained as a penalty for certain matters, but there was no evidence of it being employed as mahryyeh.
The applicant claims that his sister, SI, was initially declined entry into a PhD program at various Iranian universities as she was not wearing full “chador” and was not able to answer religious questions. The applicant’s sister was accepted after she researched religious teachings and agreed to comply with the dress code. The IAA accepted that it was likely the applicant’s sister would have been required to demonstrate her allegiance to the Islamic Republic of Iran and the state religion. The IAA found that the applicant’s claim that his sister only obtained entry into a PhD program after a period of recalcitrance towards such requirements seems doubtful given she was allowed to depart Iran as the holder of a training and research visa and was able to teach at an Australian university between July 2016 and March 2018.
At [16], the IAA noted the applicant claimed he was once traumatised at a beach when two “Basij” (Iranian Morality Police) stopped him and said the applicant’s three-year-old niece should be appropriately dressed. While the IAA accepted that such an incident could have occurred, it did not accept that the incident would have traumatised the applicant.
At [17], the IAA sets out the applicant’s claims that his own problems arose between mid-2010 to 2012 when he applied for jobs in Iran with government owned employers. At one interview, he was asked if he knew what the subject had been at the most recent Friday prayers at a mosque. The applicant replied that he did not know as he did not go there. He was asked if he knew the evening prayer verse and the applicant said he did not know this. He was asked if he was a Muslim, he responded that this was a personal matter and that he was there for a job interview and not an interview about his religious practices. The applicant claims the following day he received an anonymous telephone call telling him that he better start praying and attending Friday prayers and that he should not create issues for himself. He attended a number of subsequent job interviews and in respect to questions about religion he said, “I am sorry I don’t know”. Each of these job applications was declined.
The applicant claims that during the afternoon following an interview in January 2012, four men dressed like Basij came to his home and took him to the Basij station at a nearby mosque. During questioning, he was accused of no longer being Muslim and having abandoned his faith. He denied this. He claims he was beaten and accused of questioning the decisions of the Supreme Leader. He claimed he loved his religion and Supreme Leader but made the statements because he knew if he admitted to these things, he would be accused of being and executed as an apostate.
In February 2012, he was again arrested and taken to another Basij interrogation centre. After being accused of having left Islam, with the applicant denying this, he was allowed to leave. The applicant was again arrested in June 2012. Again, the same accusations were made. He was slapped and punched, but after two or three hours he was released.
The applicant applied for a passport and was issued with one in July 2012. The same month, he was taken from his home by four Basij. He was again accused of having left Islam. It was stated to him that the applicant’s entire family were not practising Islam and were implicated. He refused to sign a confession stating he was an apostate. The applicant was again beaten, told to leave, and given a warning that the Basij would be following him like his own shadow. Some days later the applicant’s father told him that he had organised for the applicant to go to Australia via Indonesia. In around August 2012, the applicant departed Iran from the Iman Khomeini Airport.
At [21], the applicant provided submissions to the IAA, which claimed that the applicant’s sister, SI and her husband, SHM, had in July 2019 been questioned by Iranian authorities about the applicant. SI was interrogated about her relationship with the applicant, asked where he was, and whether he had been given asylum in Australia. The authorities demanded information from her about what political involvement the applicant was engaged in against Iran, what church he worked for, and alleged the applicant had obtained asylum in Australia by converting to Christianity. The Iranian authorities threatened to arrest SI if she did not tell them when the applicant would return Iran. SHM was asked similar questions about the applicant.
The evidence of this consisted of what purports to be an SMS message that was sent to the applicant’s sister’s husband requesting that he attend a police station within 10 days for investigation regarding an “unveiling” offence that had occurred in his vehicle. The IAA accepted that SMS messaging has been employed by Iran’s Morality Police to summon persons who have been seen violating hijab laws. However, the IAA found that it had no confidence that the SMS message was actually sent by Iranian Morality Police. Further, the IAA found it doubtful that Iranian authorities would take such a circuitous approach involving the fabrication of a false report of a hijab law violation when they could have simply approached and questioned the couple directly and at a time of their own choosing.
The IAA noted the applicant’s claim was that in 2012 he was the focus of repeated episodes of detention and interrogation, during which he was alleged to be an apostate, but was nevertheless able to apply for a passport and then depart the country. Notwithstanding this, no enquiries were made at the applicant’s family home or with his family about his whereabouts over the next seven years until 2019.
Further, the applicant’s sister was apparently able to depart Iran in 2006, as the holder of an Australian visa, that would enable her to study and teach at an Australian university. However, more than a year after her stay in Australia ended, and seven years after the applicant’s departure, Iranian Morality Police sought to question SI and her husband about the applicant’s circumstances and activities. They did so through the pretence of the false allegation regarding the wearing of a hijab. The IAA found all of this doubtful. The doubts as to the questioning of the applicant’s sister in 2019 were not overcome by the purported SMS message or by SI’s statement.
At [25], the IAA found it implausible that the applicant would have gone to the trouble of lodging applications for a job or jobs with the Iranian government’s own employers if he were not willing to demonstrate his allegiance to the Islamic Republic of Iran and state religion. To do so would have been utterly pointless. The applicant’s account of his January 2010 interview unfolds in the manner that implies the applicant was surprised about being asked about his religious practice at the interview. The IAA found it implausible that the applicant could have been surprised by such questions.
At [26], the IAA found it implausible that a person, such as the applicant, applying for a job as a process worker with a manufacturer of audio-visual electronic products, would be asked whether he attended a prestigious local mosque for Friday prayers. The IAA found it further doubtful that a person applying for a job as a process worker in a government owned manufacturer of car parts would be asked his opinion about the November 2011 mob attack on the British Embassy in Tehran.
At the applicant’s protection visa interview, the delegate informed the applicant he needed to put to him what he had said in his entry or arrival interview when he had been asked why he left his country [27]. It was recorded that he said he had no human rights, and he was not being treated as a human being there. The delegate put to the applicant that at that time, he made no mention of being accused of being an apostate. In his response to the delegate’s concerns, the applicant stated he was very stressed, full of fear and felt he was being rushed and he was haunted by his previous memories. The IAA found it was plausible that he was rushed at interview and was not given an expansive opportunity about his reasons for having departed Iran. The IAA nonetheless had doubts about the credibility of the applicant’s claim that he was the focus of adverse attention in Iran.
At [28], the IAA noted there was no audio record of his October 2012 arrival interview, but there is an audio record of the applicant’s subsequent December 2012 entry interview, and a typed record. The typed record was noted not to be particularly accurate of what was said. In July 2019, extensive written submissions were made to the Authority about the content of the December 2012 audio record.
Significantly, at the December 2012 interview, the interviewer instructed the applicant to speak about the specific ways in which the authorities that impacted on his life in Iran. In response, the applicant cited the example after the attack on the British Embassy in Iran, he talked about politics and how he was against the attack on the British Embassy in Tehran and about when he had problems with the Basij. The applicant talked about how he had been beaten up and this was because at the interview, they wanted him to confess that he was an apostate and that he rejected Islam.
At [30], the IAA accepted that as early as December 2012, the applicant did claim he had been accused of apostasy. He also claimed he had been beaten by the Basij. The IAA noted that in the December 2012 interview, the applicant claimed he was first beaten by the Basij three years earlier which would have been in late 2009 and early 2010. Whereas now, he claims that he was first beaten by the Basij in January 2012. The IAA concluded that had serious doubts about the credibility of a number of aspects of the applicant’s claims.
The IAA then referred to the applicant’s invalid September 2013 protection visa application. That application was made with the assistance of a Migration Agent and included a statutory declaration which had been read back to him in his own language. In that application, the applicant claimed he was arrested at his home by members of the Basij six years prior (that is, in around 2007) and these men wanted him to write that it was okay for the British Embassy to be attacked. He then claimed, after he was released he was taken regularly into the local Basij office and interrogated over a period of five years. The IAA concluded that the delegate at his protection visa interview did not have the December 2012 entry interview or the applicant’s 2013 invalid protection visa application before her.
At [32], the IAA noted in his 2 September 2019 interview, it was put to the applicant that his September 2013 evidence (in which he effectively claimed that in 2007 he was first arrested) raised serious doubts about his current claims in these matters, particularly given the British Embassy attack did not occur until November 2011. In response, the applicant submitted that when he made the September 2013 statement it was very much affected by stress, and that whenever he has to sit in a room to answer questions, he felt like he was being interrogated again. The IAA was not persuaded that any of the reasons given by the applicant can account for his statements made in September 2013. At [33], the IAA concluded that the applicant’s claim in September 2013 that he was harassed about the matter of the British Embassy attack in 2007 was because he did not know the British Embassy attack had occurred in November 2011. The IAA concluded when he became aware that the British Embassy incident occurred in November 2011, he altered his claims in order to render them plausible. The IAA considered this seriously undermined his credibility of his claims about these matters.
At [34], the IAA discusses the applicant’s claim that while he believes in God, he has no formal religion. He claims he was born a Shia Muslim, but does not practice this religion. The IAA noted that in his September 2013 protection visa application, the applicant stated he was a Shia Muslim. He did not state that he was not a Shia Muslim or that he had never practiced that religion. The September 2013 protection visa application was completed with the assistance of a Migration Agent. The IAA found it was implausible that the applicant would not have expressly stated in that application, given this goes to the heart of his claims, that he had never practiced Shia Islam. This places doubt on his claim about his religious beliefs.
At [36], whilst the IAA accepted an incident at a beach involving the Basij occurred, the IAA found that given the weight of the wider evidence, the applicant is not genuinely opposed to the Islamic Republic of Iran or that he is not a Shia Muslim, or that he and his family have never practised Shia Islam. The IAA rejected all the applicant’s claims regarding being of adverse interest to Iranian authorities and harm of any kind. The IAA found it was remote that the applicant would experience harm due to an incapacity to find employment and the general economic conditions in Iran.
At [37] – [38], the IAA noted the applicant would be required to apply in Australia for a new Iranian passport, given his current passport expired in 2017. The IAA found this would not require an explanation to Iranian authorities by the applicant. Upon return he may face some questioning, as the Iranian authorities may assume the applicant applied for asylum in Australia. However, given the finding the applicant was not of adverse interest to the authorities he would not face a risk of harm upon return. Accordingly, the IAA affirmed the decision under review.
It is to be noted that there is only a single reference to precisely what country information or material was used by the IAA in the course of its consideration of the matter. This is simply a reference to ‘DFAT Country Information Report – Iran 7 June 2018’ at page 3 of the decision record. It is simply noted at [6] that the most up to date country information has been obtained. There is not a single reference beyond that, not even to material that may have been directly relied upon from that June 2018 report within the decision record.
That report has subsequently been tendered to the Court by the first respondent. It is some 51 pages in length.
The lack of referencing includes the basis of why the IAA came to the conclusions it did as to the methodology used by the Basij to summon people for questioning, or what questions might be asked in an employment interview by a government employer. In a submission at CB 356, the applicant’s legal representative provided a number of news articles reporting that women have been sent SMS text messages to report to police stations for offences relating to not being properly veiled in a motor vehicle. No country information or other reference material is attached to the IAA’s decision record, and none appears in the Court Book.
GROUNDS OF REVIEW
Leave was granted on 21 May 2024 to allow the applicant to rely on his written submissions dated 16 May 2024. Those submissions included a Further Amended Application which relies of the following grounds of review (less particulars):
1.The second respondent, the Immigration Assessment Authority (IAA), failed to read, identify, understand and evaluate the corroborating evidence and bring its mind to bear upon the evidence of a corroborating witness. Also, it was legally unreasonable for the IAA to erroneously dismiss that evidence as a fabrication.
2.Further or in the alternative, the IAA failed to consider, or to form the state of satisfaction required under section 473DD if the Migration Act in relation to, the applicant’s new claim that Iranian authorities would “accuse [him] of… conversion to Christianity”.
3.In reasoning to a conclusion that the applicant’s “evidence had not been convincing”: (CB405(11 l) and in dismissing most of the evidence to support his claim as a fabrication (CB414(36]), the IAA made findings that were unsupported by, or misconstrued, the evidence such that the decision was seriously lacking in foundation, rationality and logical coherence in a way that was legally unreasonable.
THE APPLICANT’S SUBMISSIONS
Ground 1
The applicant contends that the IAA failed to read, identify and evaluate the corroborating evidence of the applicant’s sister, SI, and failed to bring its mind to bear on this evidence and dismissed the statement of SI, based on speculation and a personal assumption not evidence; (see: Assistant Minister for Immigration and Border Protection v Splendido (2019) 271 FCR 595 at [77] – [78], [82]; Plaintiff M1/2022 v Minister for Home Affairs (2022) 96 ALJR 497 at [24], [36]; SZHYH v Minister of Immigration and Border Protection (No 3) (2019) 165 ALD 463 at [48]).
At [6] of his submission, the applicant asserts that the evidence of SI was a part of the new evidence that the IAA had previously accepted under s 473DD of the Migration Act 1958 (Cth) (“the Act”). Once the new evidence was accepted the IAA was then bound to consider all of it. Further, the IAA decision does not expressly identify the evidence as being from a corroborating witness, and instead characterises it as part of the applicants’ submissions. The alleged evidence is a sworn written statement of SI spanning six pages dated 23 July 2019, and is summarised in paragraphs [6] – [11] of the applicant’s submissions, inter alia:
·Details of an interrogation by Iranian authorities questioning SI about the applicant, which occurred three months prior to the IAA’s decision and the statement was made one month after the interrogation.
·SI and her husband were asked by SMS messaging to attend to the Morality Security Police or Great Tehran Police Station as an unveiling of a hijab supposedly had occurred in their car. When they arrived at the Great Tehran Police Station they were separated, and SI was interrogated largely about the applicant.
·Evidence that corroborates the applicant’s well-founded fear of persecution from the Iranian authorities if he were to return.
·The Iranian police officers got SI to sign an undertaking “for her not to engage in any activities that are against the laws of the Government of the Islamic Republic of Iran, including the honouring of the hijab rules, and further if she was to become aware of any political or religious activities involving [the applicant] or any information about his return, that she would notify the authorities”.
·SI was warned by Iranian officers that if she is accused of breaching rules of morality that she would be arrested, interrogated and punished.
It was submitted that the IAA failed to bring its mind to bear on the corroborating evidence, specifically at paragraph [22] of its decision. The basis of the rejection of SI’s evidence was based on speculation and a personal assumption, without any connection to country information, material or common experience of the Iranian Morality Police. The IAA’s reasoning at [22] is tantamount to a conclusion that SI’s evidence is a fabrication.
The conclusory statement made in [22] is synonymous with a finding that SI deliberately lied in her sworn statement. This mischaracterisation of the evidence as submissions allowed the IAA to “side-step” an express finding to that effect about SI. This evidence is crucial corroborating evidence that Iranian authorities are currently interested in applicant and have been making false accusations about him. Yet, the reason for rejecting SI’s evidence is “threadbare” and does not reflect an application of any process of reasoning or analysis of the six pages of evidence, which is insufficient; (see: Islam v Cash (2015) 148 ALD 132 at [14]).
Ground Two
Ground two contends that the IAA overlooked a claim in the applicant’s statement made on 23 July 2019, a statement made by SI, and written submissions dated 24 July 2019. The claim is that the authorities in Iran have perceived that the applicant has converted to Christianity and will continue to make the accusation against the applicant, even if it is false.
The applicant submits that the IAA was required to consider any claim emerging from the material before it, and by not doing so, and going on to find that it is doubtful that SI was ever questioned, the IAA has fallen into jurisdictional error; (see: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] 144 FCR 1).
Ground Three
Ground three contends that the IAA made findings that were unsupported by the evidence, or that the evidence was misconstrued such that the decision was lacking in foundation, rationality, and logical coherence such that it is legally unreasonable. This contention is based upon the fact that the IAA made findings that the applicant fabricated evidence to support his account. The reasons provided do not reflect the seriousness of the findings made, particularly that the applicant has fabricated evidence; (see: BTF15 v Minister for Border Protection [2016] FCA 547 at [15]; EVI19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 518 (“EVI19”)). The applicant noted that the delegate, in making their decision, did not make any adverse credit findings as against the applicant, and largely agreed with the applicant’s evidence in support of their claim of fear of persecution, unlike the IAA.
The applicant submits at [25] that s 47CC of the Act is required to be exercised reasonably, in both the outcome and the process; (see Plaintiff S183/2021 v Minister for Home Affairs [2022] HCA 15 at [31]).
The applicant submits that the IAA failed to consider evidence, provided to it, including evidence regarding the treatment of women. The applicant submits that he provided submissions relating to the treatment of women, specifically in regard to the wearing of a hijab by Iranian authorities. These submissions included corroborating evidence of women being raped by Iranian authorities for not following the dress code and supporting country information provided by the applicant’s legal representatives. The IAA instead found at [11] that there does not seem to be a trend of such behaviour and did not reference the corroborating article provided by the applicant. The evidence is material, relevant, and if it was considered it would be expected that it would be referred to; (see: Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 at [52] (“MZYTS”); Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67 at [31] – [34] (“SZSRS”)). It was unreasonable to accuse the applicant of contriving such evidence without considering any of the country information relied upon for support.
The applicant then goes on to discuss how the IAA failed to consider the submission that the applicant’s characteristics to speak his opinion, both political and religious, even against authorities is analogous to being a member of a particular social group other than family per s 5L(c) of the Act. It was submitted that those submissions are relevant and should have been referred to in the IAA’s decision, even if it was rejected or given little weight; (see: MZYRS; SZSRS).
The applicant then submits that the IAA focussed too zealously on one minor and subjective matter and scrutinised it to the point of construing the statement out of context. The statement being that SI had been asked on her wedding day to fix her hijab by Iranian authorities and was only let go after her father yelled at them to leave her alone as it was her wedding day. The applicant submits that the IAA seems to have believed that SI was not questioned by Iranian authorities, which construes a large part of her six page statement, but believes one minor sentence. The cherry-picking approach taken by the IAA is legally unreasonable.
It was further submitted that the IAA found that it is unlikely that a couple in their 50’s would be targeted and arrested by Iranian officials as they did not believe that the couple were married, as this usually happened to younger people. This is in relation to the applicant submitting that his mother’s friends had been arrested and removed from their car as officials did not believe they were married. The applicant submits that the IAA relied on country information but did not directly refer to or provide specific evidence that they rely upon to make such a finding.
Similar to ground one, the IAA rejected the applicant’s statement based on an unwarranted assumption that the Morality Police would use a particular method and not another; (see: DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175 at [45]; 353 ALR 641; [2018] FCAFC 2 (“DAO16”)).
Finally, the applicant submits that the IAA made unreasonable findings of “implausible” and “doubtful”. The IAA found numerous accounts given by the applicant to be “implausible” or “doubtful” including inter alia:
·The applicant’s sister and husband were questioned by the authorities about the applicant;
·The types of questions the applicant was asked at job interviews; and
·Investigation and monitory of the applicant by authorities.
The applicant submits that the IAA disbelieved almost all of the applicant’s evidence, including stating that some of the statements “seem fanciful” and finding that the applicant’s evidence was “extremely contrived”. The IAA made these finding without any personal knowledge or familiarity with the ordinary human experience in Iran and without specific regard to any country information. These findings are based on mere speculation and conjecture, not evidence, and thus being legally unreasonable; (see: BQQ15 v Minister for Home Affairs [2019] FCAFC 218 at [56]; Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 (“Djokovic”); 397 ALR 1; DQM18 v Minister for Home Affairs (2020) 278 FCR 529 (“DQM18”) at [58]; EVI19; Nuon v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 653; Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs v Viane [2021] HCA 41; 395 ALR 403 (“Viane”)).
In supplemental submissions requested by the Court on the issue of the lack of any detailed referencing to indicate the basis for the conclusions by the Authority on factual matters claimed by the applicant that were disbelieved, the applicant relied on SZYHYH v Minister for Immigration and Border Protection (No 3) (2019) 165 ALD 463 at [46] where Allsop CJ stated in relation to a lack of independent country information that:
….The Tribunal was bringing (without any apparent basis in expressed country information or material before it) an apparent personal assumption forward as a critical factor in a finding of disbelief.
An unwarranted assumption can establish a finding of legal unreasonableness or establish that a finding is illogical, irrational or not founded on any probative evidence; (see: BDZ17 v Minister for Immigration and Border Protection (2018) 263 FCR 292 at [36]).
THE FIRST RESPONDENT’S SUBMISSIONS
Ground One
In relation to ground one, the first respondent submits that the applicant’s representative under the cover of a letter dated 24 July 2019 provided various material that included written submissions, a statement from the applicant, a statement from the applicant’s sister SI, and a translated SMS text message from the Morality Police of Tehran. The IAA considered some of the evidence at [3] of its decision, also identifying that some of it was new information and determined that there were exceptional circumstances for it to be considered. The IAA considered the evidence provided by SI, particularly at [21]. The IAA’s obligation was to read, identify, understand and evaluate the evidence, there is not an obligation for the IAA to make any particular findings about it; (see: Plaintiff M1/2021 v Minister for Home Affairs (2022) 178 ALD 304; [2022] HCA 17).
When looking at the IAA’s decision in its full context, SI’s statement is rejected for good reason, and not just for the reasons set out at paragraph [22]. When looking at only paragraph [22], the IAA may have fallen into jurisdictional error, however it was sufficient to give the IAA cause to doubt the statement. The IAA can be taken to have experience dealing with Iranian protection visa claims. The IAA rejected it for the following reasons:
·There was nothing in the format or content of the SMS message provided in support of the claim to give the Authority confidence it was actually sent by the Iranian Morality Police, or any other authority: [22].
·It was doubtful that the applicant would have been able to obtain a passport and depart the country if he had been subject to repeated episodes of detention in 2012, and that after those episodes his family was not investigated until seven years later: [23].
·It was doubtful and coincidental that despite the authorities’ interest in the applicant in 2012, and his sister’s years of recalcitrance, that she was able to depart Iran to study in Australia, and it was only upon her return to Iran, and at the same time that the Authority was undertaking the review of the applicant’s protection visa refusal, that the Morality Police approached her, despite the authorities appearing to know a lot about the applicant and SI’s travel to Australia: [23].
It was open to the IAA to reason in the way it had, and it did not have to accept uncritically the applicant’s claim, even those that were supported by third parties. The IAA appropriately addressed all of the purported corroborative material and gave cogent reasons for finding that it did not corroborate the applicant’s claims; (see: Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 485; [2010] FCAFC 50 at [38]; Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 (“Randhawa”) at [451] – [452]; [1994] FCA 1253).
Ground Two
The first respondent submits that as the first ground was not made out, the second ground must also fail. The IAA expressly rejects the evidence provided to it regarding the applicant’s fear of harm on the basis of an imputed conversion to Christianity; (see: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088).
Ground Three
There is a high bar for establishing legal unreasonableness in connection to fact finding; (see: DAO16).
Firstly, the applicant’s argument that the IAA erred in rejecting the applicant’s claim that he saw women who were not wearing a hijab being arrested and raped, should be rejected. Whether an incident as described by the applicant occurred or not is irrelevant, as the IAA had to consider the applicant’s claim which was premised on Iranian authorities having a practice of arresting women for not wearing a hijab and raping them. It was the underlying assertion made by the applicant which the IAA rejected.
Secondly, the IAA did not err in its findings made at [25] of the decision concerning a job application the applicant claimed he had made. The IAA rejected that the applicant had been of any adverse interest to the Iranian authorities, or that the applicant had spoken as he claimed. The applicant asserted that he was a member of a particular social group of people who spoke their opinion to authorities.
Thirdly, the first respondent submits that in regard to the IAA “cherry-picking” aspects of SI’s statement of what it believes, and what it does not believe, is not unreasonable. The applicant’s approach that if one aspect of evidence is found to be fabricated then the whole of the evidence is then found to be fabricated, is too simplistic. It is open to the IAA to identify inconsistencies in the applicant’s account, and the IAA rejecting the applicant’s claim about what happened on his sister’s wedding day was only one of several identified.
Fourthly, it was logical for the IAA to have concerns with the applicant’s claim that his mother’s friends were arrested as the police did not believe they were married, as the information referred to by the IAA concerning pre-marital relations focussed on young people.
Regarding the applicant’s evidence about SI and her husband being questioned by Iranian authorities, the first respondent submitted that the IAA, and more specifically the decision-maker, had experience with Iranian protection claims, and that it is not unwarranted for them to assume that the Basij would not engage in the elaborate ploy described by SI. The applicant’s submissions would require the IAA to “(1) accept the evidence of the account without challenge, or (2) find some positive evidence that would establish that the claimed account must be rejected.” The IAA has a broader inquisitorial function, and it may consider claims made to be implausible as long as it has and explains an evidential basis for the conclusion; (see: DQM18 at [58]).
Fifthly, the findings made by the IAA at [26] are not implausible or doubtful, and it was not necessary for the IAA to have specific evidence before it to negate the applicant’s claim, or explain the precise knowledge used to determine whether a claim is plausible. The applicant’s approach places too high of a burden on the IAA. At [26], the IAA did refer to information before it, without specifying the source of the information, does not result in the IAA’s reasoning being unreasonable, unless the applicant is arguing that the information relied on was invented by the IAA; (see: Viane at [37]).
In supplemental submissions it was asserted that the Authority did not misrepresent any of the country information. For example, there was information within the country report as to the ‘gozinosh’ system that supported the IAA’s findings in relation to the applicant being questioned as to his religious beliefs when applying for government jobs. The failure to fully comply with s 25D of the Acts Interpretation Act 1901 by failing to identify the material upon which some of its findings were based does not constitute jurisdictional error.
CONSIDERATION
In Djokovic at [17], the task of a court conducting judicial review was described in this manner:
… An application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the executive branch of government, here in the form of a decision of the Minister. The court does not consider the merits or wisdom the decision; nor does it remake the decision. The task of the court is to rule upon the lawfulness or legality the decision by reference to the complaints made about it.
It is well established that the IAA is not required to accept uncritically any, and all claims made by an applicant; (see: Randhawa at [451]). Nor does the IAA have to possess rebutting evidence before holding that a particular assertion was not made out; (see: Selvadurai v Minister for Immigration and Ethnic Affairs (1992) 34 ALD 347 at [348]).
It is also well settled that the country information and the weight it gives to that information is a matter for the IAA; (see: NAHI v Minister for Immigration & Multicultural &Indigenous Affairs [2004] FCAFC 10). However, that is with the presumption that reference is made to country information within the decision record and that some is favoured over others. That is not the case here. All that is stated is that the most up to date country information has been accessed. That country information is not referred to after that, notwithstanding the IAA’s clear disbelief as to the claims made by the applicant, such as contacting the applicant’s sister via SMS to come to the police station. This disbelief is not grounded in any referenced evidence to support the finding.
Unreasonableness is where a decision-maker has come to a conclusion so unreasonable that no reasonable decision-maker could have come to it; (see: Minister for Immigration v Li (2013) 297 ALR 225 (“Li”) at [28]), or where a decision has been made that lacks an “evident and intelligible justification”; (see: Li at [76]). The test for unreasonableness is “stringent” and will only arise in rare cases. Unreasonableness is not a means for challenging a decision on the basis that the Court disagrees with the consideration of matters, or the evaluative judgements made by the decision-maker: Li at [30], [113].
In Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 at [11], Allsop CJ said the following concerning a review of a decision for legal unreasonableness:
The task is not definitional but one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, insufficiently lacking rational a foundation, or an evident or intelligible justification, or in being plainly unjust arbitrary capricious or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as to the exercise of that power. The descriptions of a lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of power.
In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 the Court concluded at [131] that it was insufficient the different minds might reach different conclusions in a jurisdictional fact and that the test for illogicality or irrationality:
… Must be to ask whether logical or rational reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by reviewing court to be a logical or irrational or unreasonable simply because the conclusion that has been preferred to another possible conclusion.
Ground One
Ground one is in two parts. The first is a complaint that the IAA failed to read, identify and understand and evaluate the corroborating evidence of the applicant’s sister. The second part is that the dismissal of that evidence was legally unreasonable.
Part of this complaint is that at [22] the IAA incorrectly referred to the evidence from the applicant’s sister as “submissions”. A fair reading of the whole of [22] and [23] makes it clear that the IAA understood the statement from the applicant’s sister to be evidence which was accompanied by submissions. This part of the complaint has no merit.
The next part of the complaint is that the IAA failed to understand and evaluate the sister’s evidence. Again, the Court does not accept this submission. The evidence is set out in detail over the course of [22] and [23] together with the purported reasons why it is not accepted. This includes however an acceptance by the IAA that SMS messages are sent by the Basij in relation to morality offences involving the incorrect wearing of the hijab in motor vehicles. The Court does not accept that the IAA failed to understand and evaluate the evidence. It is set out and for the reasons given rejected.
The next part of ground one is that the conclusion of the IAA that rejects the sister’s evidence is legally unreasonable. That evidence was direct evidence as to the continuing interest of Iranian authorities in the applicant. The IAA seeks to discount the sister’s evidence at [21] – [22] on the basis that first, it had no evidence that the SMS before it was actually sent by the Iranian Morality Police or any other authority. The Court notes at this point there was no evidence to the contrary to show that it was not sent by the Iranian Morality Police.
However, the IAA had evidence before it of the use by Iranian authorities of SMS messages to summons people to police stations regarding morality offences. Yet, the IAA found the SMS message that was provided to it could not be relied upon because “there is nothing in the format or content of the message before the IAA that provides me with any confidence that this SMS message was actually sent by the Iranian morality police”.
Second, the IAA found that if it was the case that the Iranian authorities wished to question the applicant’s sister and her husband about the applicant, the IAA doubted that the police would take such a circuitous method. Rather, they could have simply approached and questioned the couple directly at a time of their own choosing. In effect, the IAA rejects this evidence in its totality.
EVI19 per Stewart J also involves claims made by an Iranian citizen of fear of harm upon return. This included a finding by the IAA regarding the circumstances of the applicant’s escape from Iranian authorities after he claimed he bribed a guard while being taken to court.
At [78] – [79] of EVI19, Stewart J said the following:
[78] Insofar as the Minister contends that the evidence of findings in support of the Authority’s impugned implausibility finding are necessary because the appellant’s ability to escape in those circumstances does not accord with the probabilities of ordinary human experience (BQQ15) or, based on a modest familiarity with human experience, it requires no evidence (Djokovic), that contention should be rejected. Any such finding could not be based on anything more than speculation or conjecture, for it cannot be said that such a finding would be made in accordance with the Authority’s personal knowledge or by reference to that which is commonly known (Viane). The primary reason for that is that there is no evidence that the authority has any personal knowledge of or familiarity ordinary human experience in Iran.
[79] In Hathaway J and Foster M The Law of Refugee Status (CUP, 2nd Ed, 2014), the authors discuss (at p140) the dangers of relying on plausibility reasoning in the assessment of credibility as follows:
But decision-makers are too often prone to impugn an applicant’s credibility on the basis of some vague sense of implausibility of the testimony given, described in one case as having been “premised on inferences, assumptions, and feelings that range from overreaching to sheer speculation”. Even the most careful assessment of plausibility about risks in a foreign country must be undertaken with a real humility, since the decision makers understanding of plausibility may well be grounded in a view of rationality at odds with the circumstances in the applicant’s country of origin. More generally, account must be taken of the twin cautions that “speculation and conjecture cannot form the basis of an adverse credibility finding, which must instead be based on substantial evidence “and that any assessment of implausibility must be carefully tethered to the record’… [avoiding] hyperbole
(emphasis added)
In this case, the IAA rejects the evidence of the sister based on a claim that it is implausible that she and her husband would have been called to a police station on the pretext of a morality offence, when the real reason was that they wished to interrogate her and her husband about the applicant. In coming to this conclusion, no country information or other reference is cited that would support such a finding. It appears, at best to be based on either a personal assumption, speculation or using some other unarticulated basis to come to a conclusion as to the methods and tactics of the Iranian Morality Police. The conclusion lacks an evidentiary basis.
In the Court’s view, the conclusion that the sister’s evidence should be rejected can be described as either lacking evidential foundation or irrational. The Court is satisfied that the error is material such as to give rise to jurisdictional error; (see: Hossain v Minister for Immigration and Border Protection [2018] HCA 34 at [29] – [31] and [72]). Ground one has merit.
While this is sufficient to dispose of the matter, and for it to be again remitted back to the IAA for reconsideration, it is appropriate to consider the other grounds of judicial review as well. In so doing the Court needs to consider whether the error identified in Ground 1 did not contribute to the overall adverse findings in relation to the central narrative of the applicant. At [149] of EVI19, Stewart J quotes with approval Mortimer J (as she was then) in AWU16 v Minister for Immigration and Border Protection [2020] FCA 513 at [20]:
Emphatic adverse findings on credibility may well, expressly or implicitly, be linked with one another so that it will not be possible, or realistic, for a reviewing Court to be confident that an error in one strand of credibility reasoning does not infect other strands.
On any reconsideration, careful attention will need to be paid to any adverse credit finding to ensure that other findings are also not similarly infected.
Ground Two
Ground two is a claim that the IAA failed to consider the applicant’s new claim that Iranian authorities would accuse him of converting to Christianity. This was contained in his statement of 23 July 2019, his sister’s statement and in written submissions dated 24 July 2019. The IAA found it doubtful that SI was ever questioned about the applicant. For the same reasons as set out above, the IAA fell into jurisdictional error in this regard. Ground two has merit.
Ground Three
This is a claim of general legal unreasonableness in relation to the findings made by the IAA. It was submitted that the delegate did not make any adverse credibility findings in respect of the applicant, whereas the IAA effectively made findings that the applicant and his sister fabricated evidence. For example, without any clear and articulated evidentiary basis, the IAA made findings that the morality police were unlikely to harass a couple aged in their 50’s who were in a car, on the basis that the Iranian authorities did not believe them to be married.
Again, what is striking about the entirety of the decision is the lack of referencing to any country information or other evidence to provide a basis for this conclusion. Also, the Court does not accept such a conclusion is within the personal knowledge of the IAA or within ordinary human experience within Iran. In the Court’s view, notwithstanding the high bar for legal unreasonableness, the ground is made out. In coming to this conclusion, the Court has been mindful of the issue identified in EVI19 above regarding an erroneous adverse credibility finding infecting subsequent other credibility findings.
CONCLUSION
The decision of the IAA under review is quashed and the matter remitted back to the IAA for further consideration.
I certify that the preceding eighty-seven (87) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:HM
Dated: 14 August 2024
1
32
2