DUN16 v Minister for Immigration
[2020] FCCA 601
•19 March 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DUN16 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 601 |
| Catchwords: MIGRATION – Application for protection visa – inconsistencies in applicant’s claims – country information supportive of there being no well-founded fear of persecution should the applicant be returned to country of origin – findings of Authority open on the evidence before it – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5H(1), 5J, 46A(2), 473CA, 473CB, 473DC, 476 |
| Cases cited: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 |
| Applicant: | DUN16 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 662 of 2018 |
| Judgment of: | Judge Egan |
| Hearing dates: | 11 October 2019, 28 February 2020 |
| Date of Last Submission: | 28 February 2020 |
| Delivered at: | Brisbane |
| Delivered on: | 19 March 2020 |
REPRESENTATION
| Applicant: | Self-represented |
| Solicitors for the First Respondent: | Ms Ladhams, Solicitor for AGS |
| Second Respondent: | Submitting appearance |
ORDERS
The amended application for review filed on 25 October 2019 be dismissed.
The Applicant pay the First Respondent’s costs of and incidental to the application for review fixed in the amount of $7,467.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
PEG 662 of 2018
| DUN16 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Iran who arrived at Christmas Island as an unauthorised maritime arrival on 29 September 2012.
On 27 October 2015 the Minister exercised power pursuant to the provisions of s.46A(2) of the Migration Act 1958 (Cth) (‘the Act’) so as to allow the applicant to lodge an application for a protection visa.
The applicant lodged an application for a protection visa on 17 February 2016.
The applicant participated in a protection visa interview which was held on 12 July 2016.
On 5 August 2016 a delegate of the Minister refused to grant to the applicant a protection visa.
The applicant’s matter was automatically referred to the Immigration Assessment Authority (‘the Authority’) for review pursuant to the provisions of s.473CA of the Act.
On 11 November 2016 the Authority affirmed the delegate’s decision not to grant to the applicant a protection visa.
On 11 December 2018 the applicant filed an application for review of the decision of the Authority pursuant to the provisions of s. 476 of the Act.
On the 11th day of October 2019, it was ordered by this court that the applicant file an amended application for review which provided detailed particulars of the ground or grounds for review.
On 25 October 2019, the applicant filed an amended application for review, the grounds of which were as follows:
“Ground 1: The assessor failed to properly consider all of my claim.
a) According to the court book, the IAA, as one single organization, has provided two completely different outcomes in regards to my Christianity.
Part 19 p. 222 states that the assessor accepted that I have converted to Christianity. After rejecting our refugee status, before attending Federal Circuit Court, even the Minister for Immigration and Border Protection (first respondent) accepted my Christianity. But surprisingly, the IAA disapproved my faith. Two completely opposite opinions on one matter could not be anything but the assessor’s personal opinion at the time, rather than following the guidelines.
Ground 2: The assessor did not give me a chance to comment on one aspect of my claim.
a) In assessing my case, the IAA failed and neglected to contact our Lead Pastor, Pastor Stevenson, for further information regarding my Christianity. It was declared that the pastor’s letter was brief and insufficient, however, Pastor Stevenson mentioned in both provided letters (p. 144 & 247) to contact him without hesitation should any further questions or concerns arise. He provided his personal mobile number in the letter dated 18th July 2016 specifically for this purpose.
The IAA never meets an applicant, and the reason one is asked to provide a letter from the Lead Pastor is to confirm the applicant’s faith. The IAA disapproved these letters, alluding that the content was somehow not true. In fact, it was IAA negligence not to contact our Lead Pastor if they had any concerns about the content of the letter, or needed more information.
b) In page 273 section 42, the IAA declares that, according to the constitution in Iran, there is no right for Muslim citizens to choose, change or renounce their religious beliefs; and the fact that it is punishable by death. In this section it is also mentioned that it would be generally unlikely that the Iranian government would notice that I have converted to Christianity.
Firstly, all of my friends and family in Iran and Australia know that I have converted to Christianity. For some, I am considered an apostate and a heretic, and therefore may in fact inform the authorities if I return to Iran.
Secondly, not only was I baptized before over one hundred people in the church, but this glorious event was recorded on video and in photographs. I do not know who else may have seen these videos or photos, especially if it has been made available online on social media, etc. Therefore, the potential for the Iranian government to discover this information is high. They may even already have this knowledge, how could I, or the IAA, guarantee that they do not?
The IAA says it is unlikely, but by no means is it impossible! There is always the risk that if I return to Iran, I may be prosecuted and punished by death. How could the IAA want me to take this risk?
I am a Christian, and never deny or hide my beliefs and faith. And it is my responsibility to proselytize my religion wherever I am, as it is said in the Bible, Mathew 28:19 – “Go therefore and make disciples of all nations”.
The applicant’s claims for protection were as set out in [19] of the reasons of the Authority as follows:
·“She was born in 1991 in (omitted), (omitted) Province, Iran. Prior to coming to Australia she lived in (omitted) in Khuzestan with her parents and sister.
·She grew up as a Shi’a Muslim but does not believe in or practise Islam any more. Since being in Australia she has associated with Christian friends and has converted to Christianity.
·She dislikes the Iranian government because it is oppressive government and women do not have any rights.
·She has been questioned and detained by the Basij a number of times and occasionally kept in their van because of her Hijab and wearing makeup.
·Whilst attending university in 2011, she was approached by a man named (Man A) who wanted to marry her. He belonged to the Arab Savari tribe. The Savari Tribe are well known amongst the Arabs as being savages. They have a reputation in doing whatever they want to do because they are the most powerful tribe.
·She refused his proposal but he and his tribe continued to threaten and harass her family. Both she and her sister were really afraid of this. They knew Arab tribes were powerful and carried out violence against women without suffering any consequences.
·They decided to leave Iran after this. They knew they could not get protection from the police because their enemy was not just (Man A), it was the whole Savari tribe. Her father made arrangements for them to leave Iran and in September 2012 they left Iran and travelled to Australia and she travelled on her own genuine passport.
·Her father told them that, after their departure, the Arabs had gone to their house looking for her. Her father eventually moved from there to avoid their harassment but they found him and asked for her so he moved again.
·She fears the Iranian authorities because they assume many people who travel to Australia either change their religion or say bad political things about the Iranian government and these are all considered crimes in Iran. If she is accused of apostasy, this will be a crime anywhere in Iran.
·She will not get protection from the police or any other authorities because she is a woman.
·She knows that she will be not safe anywhere in Iran because the Savari tribe are well known and are powerful and will easily locate them anywhere in Iran.”
At [3] of its reasons, the Authority noted that it had had regard to the material provided to it by the Secretary of the Department pursuant to the provisions of s.473CB of the Act.
At [4] – [14] inclusive of its reasons, the Authority set out its consideration of, and findings in relation to, new information provided to it by the applicant after the decision of the delegate. Such considerations and findings were relevantly as follows:
a)At [4], the Authority considered that a submission received on behalf of the applicant on 30 August 2016 was not new information because the submission referred to the delegate’s decision, legal argument, the protection visa interview evidence and country information that had already been before the delegate.
b)At [5], the Authority found that there were exceptional circumstances justifying its consideration of information relevant to the fact that at the time of undertaking her protection visa interview the applicant made an affirmation rather than taking an oath on the bible. Reference was made by the Authority to a quote from the bible which supported such a practice.
c)At [6], the Authority was satisfied that there were exceptional circumstances justifying its consideration of matters relevant to the applicant’s baptism on 21 August 2016. The Authority was satisfied that such information could not have been provided to the Minister before the delegate made the decision. The Authority considered that such information was of probative value considering the applicant’s claims that she had converted to Christianity, as evidenced by her baptism after the delegate’s decision.
d)At [7] and [8] of its reasons, the Authority first recorded that the applicant had submitted that if the Authority found that it was not satisfied that the applicant was not a genuine follower of the Christian faith, the Authority should exercise its discretion pursuant to the provisions of s. 473DC of the Act to obtain new information from the applicant regarding her understanding of, and belief in, the Christian faith in circumstances where such information was not before the Minister at the time of the decision of the delegate. Such section provided as follows:
“Section 473DC – Getting new information
(1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:
(a) were not before the Minister when the Minister made the decision under section 65; and
(b) the Authority considers may be relevant.
(2) The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(3) Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a) in writing; or
(b) at an interview, whether conducted in person, by telephone or in any other way.”
At [8], the Authority properly engaged in a consideration of those matters put to it by the applicant. It weighed up the applicant’s submission that further information should be sought by the Authority, its having done so in the context of the Authority already accepting new information as to the applicant’s conversion to Christianity, and also in the context of the applicant having had a sufficient opportunity to demonstrate her knowledge of, and belief in, Christianity at the time of the holding of the protection visa interview, as well as the applicant having had an opportunity after the handing down of the delegate’s decision to make further submissions on that issue to the Authority. The Authority was, in such circumstances, entitled to not exercise its discretion to get any new information as submitted by the applicant. It was no doubt satisfied that it had all such information before it as would enable it to properly consider the applicant’s claims in that regard.
e)At [9] – [12] of its reasons, the Authority considered whether a letter dated 17 April 2018 [1] sent by the Lead Pastor of the Westcity Church should be considered as new information or not. Having found that it should be so considered, the Authority was satisfied that there were exceptional circumstances justifying its consideration. Its contents indicated that the pastor had known the applicant for some two years and that the applicant was a regular attendee at Sunday gatherings. The applicant was also said to be well regarded.
f)At [13], the Authority detailed why it did not consider that there were exceptional circumstances justifying its consideration of photographs taken of the applicant in what appeared to be a church setting. [2] The photographs were undated, and no contextual information had been provided as to when or where the photographs had been taken. It was noted by the Authority that it had been accepted by it that the applicant had attended church in Australia. Such evidence had already been before the delegate. The photographs were not considered as adding to what otherwise was accepted evidence as to the applicant’s baptism and attendance at a Christian church where she was well regarded. In those circumstances, the Authority did not err in finding that there were no exceptional circumstances justifying its consideration of such photographs.
g)At [14], the Authority noted that it was satisfied that there were exceptional circumstances justifying its consideration of a new report by the Department of Foreign Affairs and Trade (‘DFAT’) on Iran published on 7 June 2018.
[1] Court Book (CB) p. 247.
[2] CB pp. 248 – 250.
At [20] and [21] of its reasons, the Authority set out the relevant matters which it was required to have regard to in relation to its refugee assessment and well-founded fear of persecution obligations, as respectively set out in s.5H(1) and s.5J of the Act.
Ground 1
As to Ground 1 of the amended application for review, such Ground is argumentative and rhetorical, based as it was upon the factual assertion that when this matter first came before the Authority, a different finding was made on the question of whether the applicant had genuinely converted to Christianity or not. There was otherwise no substantive claim made in such Ground. This Court is unable to review matters where no grounds of review are particularised. That is alone a ground for dismissal of the application for review. [3]
[3] WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35] per Gilmour
Otherwise, Ground 1 is without merit, as it seeks to re-litigate an irrelevant factual finding made by a differently constituted Authority at an earlier time. The ground constitutes a misapprehension of the role of the later differently constituted Authority, which was, relevantly, to engage in a de novo consideration of the merits of the delegate’s decision, and to thereafter determine, for itself, whether or not a protection visa ought to be granted. [4] Further, the fact that an earlier decision of the Authority was factually different from a later decision of the Authority does not render the later decision as one affected by jurisdictional error. It has long been accepted that different minds might reasonably reach different conclusions on similar or identical material. [5] The ground is without merit.
[4] Plaintiff M174/2016 v Minister for Immigration & Border Protection (2018) 353 ALR 600 at
[17], [85], [92] and [95].
[5] Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131] per Crennan
Ground 2
As to Ground 2(a) of the amended application for review, it is asserted that the Authority fell into jurisdictional error because it “failed and neglected to contact our Lead Pastor, Pastor Stevenson, for further information regarding my Christianity.” It was further asserted that it was negligent on the part of the Authority to not contact Pastor Stevenson.
First, by the provisions of s.473DC(2) of the Act, the Authority does not have a duty to obtain any new information. It is discretionary on the part of the Authority as to whether it takes any step to obtain any such information or not. In this matter, the assertion on the part of the applicant that the Authority erred by not seeking further information from the Lead Pastor was misconceived, because the Authority not only had before it the Lead Pastor’s letter of 17 April 2018, but also an earlier letter – relating to both the applicant and her sister – from the Lead Pastor, dated 18 July 2016. [6] The letter dated 18 July 2016 provided as follows:
“To Whom it may concern,
I am writing to confirm that (omitted) and (DUN16) attend Westcity Sunday services when they are not working. They have also been attending a bible study with one of our members for the last two months.
In addition to this they have just recently joined one of our mid week home church gatherings to supplement for when they are not able to attend on a Sunday due to work commitments.
I can vouch for their Christian commitment and good character.
If you would like to chat with me about them, then please don’t hesitate to contact me on (omitted).
Kind Regards,”
The letter dated 17 April 2018 provided as follows:
[6] CB p. 144.
“To Whom it may concern,
I have known (DUN16) for the last two years, she has been a regular attender at our Sunday gatherings.
I have also got to know (DUN16) outside of our Sunday gatherings and I have nothing but the highest regard for this young woman. I can vouch for her Christian character and love of people. I consider it a privilege to be able to call her my sister in Christ.
(DUN16) is also much appreciated and loved within our community and we all are hoping and praying that she will be able to stay in Australia till it is either safe for her to return home, or in the event of this not happening that she will be afforded a more permanent residency here within our borders.
If you have any other queries or question then please don’t hesitate to contact me.
Kind Regards,”
From a reading of the content of those two letters, the Authority clearly had before it what constituted a glowing tribute to what was said to be the applicant’s commitment to Christianity. She was described by the Pastor as his “sister in Christ”. In those circumstances, it was unnecessary for the Authority to obtain further information from the Lead Pastor on that issue.
The Authority already had before it sufficient information in support of the applicant’s claims relating to her conversion to Christianity to enable it to make an assessment as to the veracity of such claims. It ought to be inferred that the Authority had weighed up whether it should or should not seek further information about the applicant’s alleged Christianity conversion from the Lead Pastor, and that it had considered that that was unnecessary and immaterial. In doing so, the Authority was not required to set out each and every step of its decision making process. As was held by French CJ and Kiefel J in Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594 at [31], while a Court may infer that a matter not mentioned by a Tribunal in its written reasons entitles the Court to infer that the matter was not considered material, “… that, of course, does not mean that a matter not mentioned … was not considered”.
Alternatively, even if the Authority had failed to consider whether it ought to have sought further information from the Lead Pastor, any such failure was immaterial in the light of the Authority’s other findings both as to the applicant’s credibility, as well as to her motive in asserting that she was a Christian. The Authority, at [38] and [39] of its reasons, found as follows:
“[38] I am not satisfied the applicant has a genuine interest in Christianity. I am not satisfied she will engage in Christian activities or identify as a Christian if she were to return to Iran.
[39] I am not satisfied the applicant has been baptised in Australia otherwise than for the purpose of strengthening her claims to be a refugee. I have disregarded this conduct in determining whether she has a well-founded fear of persecution pursuant to s.5J(6) of the Act.”
The findings at [38] and [39] of the reasons of the Authority were based upon its assessment of all of the evidence before it concerning the applicant’s claims that she had converted to Christianity and that, therefore, she had a well-founded fear of persecution should she be returned to Iran. The Authority closely considered the applicant’s claims of past harassment from (Man A) and the Savari Tribe of Ahwazi Arabs, as well as the credibility of such claims. It closely analysed such claims at [23] – [30] inclusive of its reasons before arriving at the conclusion that the applicant had fabricated her claims of likely harassment should she be returned to Iran. In particular:
a)At [25], the Authority noted that though the applicant had claimed that she would not be safe anywhere in Iran because the Savari tribe of Ahwazi Arabs were well known and powerful, country information before the Authority did not establish such claims. The Authority noted that when the applicant was asked what she knew about the Savari tribe during her protection interview she first referred to Arab students in her school, but upon further questioning she had claimed that Man A had told her about the tribe and had warned her father about how to deal with them. It was further noted by the Authority that the claims of the applicant that the Savari tribe were so powerful as to be able to carry out threats without consequence and that such tribe had contacts in the police force was contrary to the information before the Authority which suggested that the Arabs of Khuzestan complained of government discrimination against them with large numbers of them being arrested each year. [7] Though the applicant also acknowledged that each tribe had good and bad people, she stated that Man A was insane and was one of the bad ones. That contradicted her earlier claim that the tribe was well known as being savages. The applicant’s claims were made in the context of her having lived in the same house from 2011 until she left Iran in September 2012, there being no credible evidence that she had in fact been subjected to physical harm from either Man A or members of the Savari tribe during that time.
b)At [26] it was noted that though the applicant had claimed that Arab members of the Savari tribe had gone to her house and had looked for her – causing her father to move to avoid harassment – there was evidence that the father was still residing in the town of Ahwaz both at the time of his alleged complaint in November 2013 as well as at the time of the applicant’s application in February 2016.
c)At [28] it was noted that though the applicant had claimed that she had provided a “Letter of Grievance” to the public prosecutor’s office in November 2013, no such document was lodged at the time of the applicant’s application in February 2016, or at the protection visa interview in July 2016 in circumstances where it ought to be inferred that the Authority considered that had such document been lodged it would have been so provided, something which the Authority found had undermined the applicant’s claim in that regard.
d)At [29] the Authority similarly was concerned as to why an invoice dated 26 July 2012 for repairs to a family vehicle allegedly damaged by the Savaris had not accompanied the applicant’s application or was not produced at the time of the applicant’s protection visa interview.
e)At [30] the Authority did not accept the applicant’s claims that any person who proposed marriage to her was an Arab from the Savari tribe, finding that the applicant had fabricated such claims and that the applicant would not face a real chance of harm for refusing a person’s marriage proposal.
[7] DFAT Country information report on Iran of April 2016; US Department of State “2014
At [31] – [40] inclusive of its reasons, the Authority carefully considered each of the applicant’s claims as to her having had an interest in Christianity. The Authority was entitled to find that the applicant had developed an interest in Christianity so as to improve her protection visa claim chances, in part basing such finding on the applicant’s lack of credibility. The Authority was entitled to weigh up the evidence before it and arrive at the findings that it did. It was entitled to make an adverse credibility finding based upon discrepancies between the applicant’s claims and the evidence before it.
At [42] of its reasons, the Authority held that it would be unlikely that the applicant would become known as a person who was no longer faithful to Shia Islam. At [43] of its reasons, the Authority found that it was not satisfied that if returned to Iran the applicant would face any fear of persecution by reason of any religious view or stance held by her. It was noted that the applicant had not claimed that she had come to the adverse attention of the authorities or the community in Iran notwithstanding that prior to her departure she had claimed that she had not been attending a mosque there. The Authority, on all of the evidence before it, was entitled to find that if returned to Iran the applicant would promote her religious views so as to bring herself to the attention of the authorities. It was not satisfied, therefore, that the applicant had a well-founded fear of persecution on any such ground, nor that the applicant would be regarded as an apostate.
At [44] – [50] of its reasons, the Authority considered the applicant’s claims that the applicant would be discriminated against because she was a female. At [50], it was recorded that the applicant had provided evidence that the applicant had completed high school and a tertiary accounting degree, later working in a photography studio. The Authority was not satisfied that the applicant would be the subject of a level of discrimination or other treatment from the Iranian Authorities which would amount to serious harm. At [51] and [52] of its reasons, the Authority found that though the applicant disliked the Iranian political regime because of its suppression of free speech and the punishment of those who publicly criticised the regime, it was satisfied that the applicant would not publicly promote her political opinions. That was so not because of a fear of persecution if she was to do so, but rather because of a lack of interest in doing so. At [53] – [58] of its reasons, the Authority considered that the applicant would not be persecuted if returned to Iran by reason of her status as a failed asylum seeker. In reliance upon DFAT and Danish Government country information, the Authority considered that in circumstances where the applicant had departed Iran legally, and where the applicant had not come to the specific attention of the Iranian Authorities before her departure, there was not a real chance that the applicant would face questioning upon her return to Iran by the authorities for any reason.
The Authority, at [61] – [66] inclusive, set out its findings as follows:
“[61] Under s.36(2A), a person will suffer ‘significant harm’ if:
·the person will be arbitrarily deprived of his or her life
·the death penalty will be carried out on the person
·the person will be subjected to torture
·the person will be subjected to cruel or inhuman treatment or punishment, or
·the person will be subjected to degrading treatment or punishment.”
[62] I have not accepted that the applicant was harassed and threatened by someone from the Savari Arab tribe due to her refusal to marry him and the applicant and her family were threatened and harassed for this reason. I am not satisfied the applicant faces a real risk of significant harm in Iran for this reason.
[63] For reasons already stated, I have not accepted the applicant has genuinely converted to Christianity. I am not satisfied that she will practise Christianity, attend church or identify as a Christian if she were to return to Iran. Although the applicant has attended church in Australia, has Christian friends and been baptised in Australia, I am not satisfied that the Iranian authorities or community are aware of this or that there is a real risk they will become aware of this. Nor does the evidence suggest that the Iranian government has an interest in their citizens solely for their attendance at church abroad. I am not satisfied the applicant faces a real risk of significant harm in Iran from the Iranian authorities or any other group or person as a result of her Christian activities and links in Australia.
[64] Even taking into account the applicant’s religious and political opinions views, I am not satisfied she will face a real risk of significant harm as a result of having to abide by the dress code, or if she breaches it like she has in the past, as I am not satisfied this amounts to significant harm as it does not constitute the death penalty, an arbitrary deprivation of her life or torture or cruel or inhuman treatment or degrading treatment or punishment as defined in s.5(1) of the Act. Furthermore, I find that the dress code and its consequences in Iran affects the population generally and not the applicant personally.
[65] Having considered the applicant’s evidence and circumstances, I am also not satisfied there is a real risk that she will be subject to discrimination or any other harm, as a woman in Iran, that will amount to significant harm. I am not satisfied there is a real risk she will be arbitrarily deprived of her life, face torture or the death penalty or will be subjected to a level of harm that amounts to cruel or inhuman or degrading treatment or punishment.
[66] For reasons already stated I am not satisfied the applicant will face a real chance of harm in because of her religious opinion, her political opinion, because of her previous encounters with the authorities over her appearance, or because she will return to Iran as a failed asylum seeker/from a western country. As real chance equals real risk I am also not satisfied the applicant will face a real risk of significant harm on return to Iran for these reasons.”
The Authority did not confine its adverse findings on credibility only to its appreciation of the applicant’s alleged conversion to Christianity, and as to the circumstances of such alleged conversion. It made its findings based upon its cumulative assessment of all of the evidence before it. As was said by Nicholas J in Minister for Immigration & Citizenship v SZOCT (2010) 189 FCR 577 at [83] – [84]:
“[83] If the Tribunal’s lack of satisfaction that the respondent was a person to whom Australia owed protection obligations was based on its assessment of the extent of the respondent’s knowledge of the Bible when compared to what might reasonably be expected of a person who believed in and practiced Christianity in China from 2004 until 2008, I would readily agree with Jacobson J that the Tribunal’s decision could not be permitted to stand. However, as its reasons for decision make clear, there were other matters which led the Tribunal to find that the respondent was not a credible witness. It drew upon these “singularly and cumulatively” in support of that finding.
[84] The other matters relied upon by the Tribunal were logically and rationally capable of supporting the Tribunal’s finding that the respondent was not a witness of truth. Once the Tribunal found, as was open to it, that the respondent was not a witness of truth, it was also open to the Tribunal to hold that it was not satisfied that the respondent was a non-citizen to whom Australia owed protection obligations.”
There is no merit to the claims raised in Ground 2(a) of the amended application for review.
As to Ground 2(b) of the amended application for review, it is asserted that the Authority erred in failing to appreciate that there was a high potential for the Iranian Government discovering information which may have been placed online concerning the applicant’s activities whilst in Australia. The applicant further claims that the Authority erred when it found that it was unlikely that the applicant would come to the attention of the Iranian Authorities by reason of her alleged religious conversion should she be returned to Iran.
First, the Authority found that the applicant’s conversion to Christianity was manufactured for the purpose of enhancing her visa application prospects. In those circumstances, the applicant would not logically come to the adverse attention of the Iranian Authorities because she would not have changed her religious beliefs. Second, even if the applicant had changed her religion to Christianity, the Authority was entitled to find, having assessed all of the evidence before it, that the applicant was not a person who would likely become known to the Authorities as someone no longer faithful to Shia Islam. At [43] of its reasons, the Authority noted that though the applicant claimed during her protection visa interview that she was not attending a mosque in Iran prior to her departure, there was no evidence that she had come to the adverse attention of the authorities or the community for such reason. It further did not find that the applicant would be regarded as an apostate. Further, the Authority was entitled to find that though the applicant had been baptised in Australia, it was not satisfied that the Iranian Authorities or community were aware of that fact, or that they would become aware of same. There was no evidence before the Authority to that effect. The Authority so found at [40] of is reasons as follows:
“[40] I, nonetheless, accept she may have initially attended church in Australia, in part, to accompany her friends and, therefore I am satisfied she has attended church in Australia for reasons other than to strengthen her claims to be a refugee. I also accept that the applicant has a number of Christian friends who she claims have supported her through difficult times. The applicant claimed during the protection visa interview the Iranian authorities will find out that she has Christian friends because they will find out from her friends or relatives but did not specify which of her associates would have told the authorities or if they have done so. There is no credible evidence before me that the Iranian authorities are aware of this or that she attended church in Australia or that there is a real chance or they will become aware of this in the reasonable foreseeable future nor does the evidence suggest that the Iranian government has interest in their citizens solely for their attendance at church abroad. I am not satisfied the applicant faces a real chance of harm in Iran for these reasons.
Ground 2(b) amounts to disagreement on the part of the applicant with findings of the Authority which were open to it. The Court is not entitled to engage in a merits review of the decision of the Authority.
It cannot be said that no other rational or logical decision maker could not have made the same decision as the Authority. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130] and [135]:
“[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
…
[135] On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”
Neither could the decision of the Authority be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:
“[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
…
[76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”
The decision of the Authority was neither illogical nor irrational. It was soundly based after an extensive consideration and examination of the evidence before it. It did not fall into any of the relevant categories as discussed in SZUXN v Minister for Immigration and Border Protection (2016) 69 AAR 210, where Wigney J, when discussing whether jurisdictional error had been demonstrated based upon alleged irrational or illogical findings, at [52] and [55], said:
“[52] As Robertson J put it in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [148], for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality or rationality must be shown, “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”. And as McKerracher J (with whom Reeves J agreed) emphasised in SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1 (at [84]), a decision cannot be said by a reviewing court to be illogical, irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion.
…
[55] Nevertheless, allegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error on the part of the Tribunal: SZRKT at 137 [148]. The overarching question is whether the Tribunal’s decision was affected by jurisdictional error: SZRKT at 137-138 [151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at 598-599 [83]-[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship [2013] FCA 123 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration and Citizenship (2013) 135 ALD 276 at 291 [66]; SZWCO at [64]-[67].”
Further, it cannot be said that the Authority, when so analysing the matters of relevance before it, failed to make an obvious inquiry about a critical fact, as was the subject of consideration by French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ in Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [25] – [27], where it was said:
“[25] Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.
[26] The first reason is that there was nothing on the record to indicate that any further inquiry by the tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves. The second reason is that the response made by SZIAI’s solicitors to the tribunal’s letter of 14 January 2008 itself indicated the futility of further inquiry. There was nothing that SZIAI or his solicitors were able to add, beyond a bare denial of what appeared in the National Ameer’s letter. For these reasons there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the tribunal’s decision was infected by jurisdictional error.
[27] No issue of procedural fairness otherwise arises. SZIAI was given an opportunity to comment upon the National Ameer’s letter and did so in the limited terms indicated. To invite SZIAI to a further hearing pursuant to s 425 of the Migration Act would have been an empty exercise. There was no such obligation in any event. The National Ameer’s letter was by way of information that the tribunal considered would be a reason, or part of a reason, for affirming the decision under review. It discharged its obligation, pursuant to s 424A of the Migration Act, by giving SZIAI the opportunity to comment on that information. The letter did not raise a new issue in the sense that that term is used in s 425.”
The applicant has not demonstrated jurisdictional error on the part of the Authority.
The amended application for review is without merit and is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Egan
Associate:
Date: 19 March 2020
J. and Bell JJ. Country Reports on Human Rights Practices – Iran”, 25 June 2015; Amnesty International
Report 2015 – 2016 – Iran.
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Statutory Construction
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