Dut17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 468
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DUT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 468
File number(s): MLG 1846 of 2017 Judgment of: JUDGE LADHAMS Date of judgment: 16 June 2022 Catchwords: MIGRATION – application for judicial review of decision of Immigration Assessment Authority – whether Authority decision was illogical, irrational or unreasonable – whether Authority erred in failing to disclose certificate issued under s 473GB of the Migration Act 1958 (Cth) – where delegate did not invite applicant to comment on adverse information and applicant made submissions to Authority based on information in the delegate’s decision - no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 5AA, 5H, 5J, 36, 46A, 57, 473CA, 473CB, 473DA, 473DC, 473DD, 473GA, 473GB, 476, 477 Cases cited: ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34
BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29; [2019] HCA 34
Craig v State of South Australia (1995) 184 CLR 163; [1995] HCA 58
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 397 ALR 1; [2022] FCAFC 3
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30
MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590; [2021] HCA 17
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16
Division: Division 2 General Federal Law Number of paragraphs: 74 Date of last submissions 16 May 2022 Date of hearing: 2 May 2022 Place: Perth Applicant: Appeared in person Counsel for the First Respondent: Mr M Daly Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Mills Oakley ORDERS
MLG 1846 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DUT17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
16 JUNE 2022
THE COURT ORDERS THAT:
1.The name of the first respondent is changed to ‘Minister for Immigration, Citizenship and Multicultural Affairs’.
2.The application is dismissed.
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 LADHAMS:
INTRODUCTION
By application filed on 24 August 2017, the applicant seeks judicial review of a decision made by the Immigration Assessment Authority (Authority) on 21 July 2017. The Authority affirmed an earlier decision made by a delegate of the Minister not to grant the applicant a protection visa. The application to this Court is brought pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act).
For the reasons explained below, I find that there is no jurisdictional error in the Authority decision and I dismiss the application.
BACKGROUND
The applicant entered Australia by sea at Christmas Island in November 2012 without a visa. He is an unauthorised maritime arrival within the meaning of s 5AA of the Migration Act.
On 28 August 2015 the Minister’s Department sent to the applicant an invitation to apply for a protection visa. The letter advised the applicant that the Minister had exercised the power in s 46A(2) of the Migration Act to lift the bar in s 46A(1) which had, until that time, prevented the applicant from applying for a protection visa.
On 11 September 2015 the applicant lodged a valid application for a temporary protection visa. In his protection visa application, the applicant claimed to be a stateless Faili Kurd and claimed that he would face harm from the Iranian authorities and the Basij on this basis if he returned to Iran. On 11 February 2017 the applicant provided information to the Minister’s Department to make corrections to earlier information, including in relation to his identity and claims for protection. The information included a statement of claims in which the applicant claimed to be a citizen of Iran and claimed to fear harm if he returned to Iran because he had abandoned Islam and converted to Christianity and the Jehovah’s Witness faith.
On 6 March 2017 the applicant attended an interview with an officer of the Minister’s Department to discuss his claims for protection.
On 16 May 2017 a delegate of the Minister made a decision not to grant the applicant a protection visa. The matter was then referred to the Authority pursuant to s 473CA of the Migration Act.
On 21 July 2017 the Authority affirmed the decision of the delegate not to grant the applicant a protection visa.
AUTHORITY DECISION
The Authority had regard to the material referred by the Secretary under s 473CB of the Migration Act. The Authority also had regard to new information provided by the applicant regarding the birth of the applicant’s child and the mental health condition of his wife, as it was satisfied that the requirements of s 473DD of the Migration Act were met.
The Authority accepted that the applicant was a national of Iran. The Authority considered the fact that the applicant had presented and maintained false claims in relation to crucial matters, including his identity, in his dealings with the Department significantly undermined his general credibility.
The Authority accepted that the applicant had attended congregations and bible studies as claimed and placed no adverse weight on the fact that the applicant had not been baptised. However, the Authority was not satisfied that the applicant had a genuine interest in and commitment to the Jehovah’s Witness faith because:
(a)the Authority did not accept that the applicant’s adoption of a new name had any religious connection, that he had a Persian bible in Iran or that he had explored or had an interest in Christianity while he was in Iran;
(b)the applicant did not appear to have engaged in any religious activities, other than reading the bible and speaking with a friend, until March 2016;
(c)the applicant had formed a relationship with and married a non-Jehovah’s Witness in a non-religious ceremony in 2016 which appeared to be inconsistent with his claim to have been adopting the Jehovah’s Witness faith into his life at that time;
(d)the applicant did not provide evidence of his true identity to the Minister’s Department until February 2017, a year after he claimed to have begun his interaction with the Jehovah’s Witness faith, and although not determinative, this called into question the credibility of his claimed conversion; and
(e)the applicant’s religious activities appeared to have decreased over time and there was no evidence before the Authority that the applicant had maintained any religious practice in 2017.
The Authority found that the applicant would not practice, identify as or proselytise in the Jehovah’s Witness faith in Iran, and was not satisfied that there was a real chance of him being harmed due to his claimed conversion. The Authority disregarded the applicant’s religious activities in Australia pursuant to s 5J(6) of the Migration Act for the purpose of assessing whether he met the refugee criteria.
The Authority accepted that the applicant no longer identified as or practised Islam. Taking into account country information, the Authority was not satisfied that there was a real chance of the applicant suffering harm if he returned to Iran because of his lack of belief in Islam.
The Authority accepted that the applicant was of Faili Kurdish ethnicity. The Authority noted that country information indicated that Kurds can face discrimination and harassment, but that the applicant’s evidence did not disclose any incidents of harm on account of his ethnicity. The Authority was not satisfied there was a real chance of the applicant being harmed for reasons of his ethnicity.
The Authority accepted that the applicant had been sexually assaulted as a child, but found that there was not a real chance of the applicant experiencing any harm either in connection with the past assault or a similar event in the future. Further, the Authority did not accept that the applicant would suffer harm at the hands of his father in the reasonably foreseeable future, or that he would be harmed from his paternal family because of his parent’s separation.
The Authority did not accept that the applicant had been picked up and beaten by the Basij. The Authority accepted that the applicant may experience harassment, warnings or fines in the future because of his tattoo or other aspects of his appearance, including Western clothing, but was not satisfied that such treatment would amount to serious harm.
The Authority was not satisfied that the applicant’s claimed asylum or lengthy period of time abroad would cause the Iranian authorities to suspect him of being a spy or give rise to any other sort of adverse interest that would amount to serious harm.
Based on the above findings, the Authority was not satisfied that there was a real chance the applicant would face serious harm if he returned to Iran, now or in the reasonably foreseeable future. The Authority concluded that the applicant did not meet the definition of a refugee in s 5H(1) of the Migration Act and therefore did not meet the requirements of s 36(2)(a).
The Authority also found that the applicant did not meet the complementary protection criteria in s 36(2)(aa) of the Migration Act as there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned to Iran, there was a real risk that he would suffer significant harm. This complementary protection finding was largely based on the findings relied on in relation to the Authority’s assessment under the refugee criteria in s 36(2)(a). The Authority also considered the applicant’s religious activities in Australia, noting that s 5J(6) does not apply to s 36(2)(aa), and found the chance of the Iranian authorities becoming aware of his activities in Australia was remote and there was no real chance of him facing significant harm because of his religious attendance and other conduct in Australia.
PROCEEDINGS BEFORE THIS COURT
The applicant commenced proceedings in this Court by way of an application filed on 24 August 2017. The application was filed within 35 days of the date of the Authority decision, as required by s 477(1) of the Migration Act.
The application raises the following ground, reproduced without alteration:
Ground 1: Error of Law
1.The decision by the Second Respondent involved an error of law, whether or not the error appears on the record of the decision.
Particulars
(a) Religious claims
2. The Applicant makes the following claims:
(i) The Applicant has converted to Jehovah Witnesses.
(ii)The Applicant will face serious harm upon returning Iran in the hands of Iranian authorities on the basis of his conversion to Christianity.
3.The Applicant fears persecution because his conversion to Christianity, if he returns to Iran.
4.The Second Respondent accepted that the Applicant could have been baptised quickly in another religion and accepted the Applicant's evidence that, in contrast, this is a lengthy process in the Jehovah's Witness faith.
5.The Second Respondent accepted the applicant's evidence at the TPV interview that he has some knowledge of the Jehovah's Witness religion.
6.The Second Respondent accepted that this is consistent with his claimed attendance at bible studies and congregations on around 40 occasions. The evidence of the witnesses contacted by the delegate also support that he has engaged in such activities and the witness who appears to have had the lengthier longer period of interaction with the applicant believes his commitment to the faith to be genuine.
7.The Second Respondent accepted that the Applicant has attended congregations and bible studies as he claims.
8.However, the Second Respondent did not accept that not satisfied that the applicant does in fact have a genuine interest in and commitment to the Jehovah's Witness faith.
9.This was an impossible conclusion to be drawn given the Second Respondent's above findings.
10. The Second Respondent's decision therefore suffers from an error of law.
On 2 May 2018 a Registrar of this Court made an Order to progress the matter to hearing. The Order required the applicant to file and serve any amended application, any supplementary court book and written submissions 28 days before the hearing. The applicant did not file any documents in accordance with the Order.
The matter came before me for hearing on 2 May 2022. At the hearing, the applicant was self-represented and assisted by an interpreter in Persian and English languages. The Minister was represented by Mr Matthew Daly.
The applicant indicated that he had not received the Minister’s outline of submissions as he had been unable to connect to internet prior to the hearing. Upon viewing correspondence from the Minister’s lawyer to the applicant regarding service, I was satisfied that the applicant had been properly served with the submissions and that it was appropriate to proceed with the hearing. In circumstances where the applicant is a self-represented litigant, I asked Mr Daly to summarise his written submissions in detail at the hearing and I granted leave for the applicant to file further responsive submissions after the hearing.
The applicant filed further submissions on 16 May 2022.
CONSIDERATION
Need to establish jurisdictional error
The role of a court in considering an application for judicial review was explained by the Full Court of the Federal Court in Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 397 ALR 1; [2022] FCAFC 3, where the Full Court said at [17]:
… 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… The Court does not consider the merits or wisdom of the decision; nor does it remake the decision. The task of the Court is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.
In order to be entitled to relief by this Court, the applicant must establish that the Authority decision is affected by jurisdictional error. The Authority will have made a jurisdictional error if it ‘exceeded the limits of the decision-making authority conferred by the statute in making the decision’: MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590; [2021] HCA 17 at [29].
The High Court identified a number of examples of jurisdictional error in Craig v State of South Australia (1995) 184 CLR 163; [1995] HCA 58 (Craig). In that case the High Court said at [14] that if the decision-maker:
…falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.
The examples of jurisdictional error set out in Craig are not exhaustive: see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [82]; Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 (SZMTA) at [81]. There might be jurisdictional error in an Authority decision if the Authority fails to conduct the review in accordance with the provisions in Division 3 of Part 7AA of the Migration Act, or if the Authority fails to exercise its discretionary powers in those provisions reasonably: see, for example, Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16 (Plaintiff M174/2016) at [21]; and ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34 at [3].
To amount to a jurisdictional error, any error by the Authority must be material, in the sense that the error could realistically have deprived the applicant of the opportunity of a successful outcome: SZMTA at [45].
Ground raised in application
The applicant has advanced one ground of application asserting error of law with several particulars. Particulars 2 and 3 restate the applicant’s protection claims in relation to his religion. Particulars 4 to 8 summarise relevant findings of the Authority. Particular 9 asserts that the Authority’s finding that the applicant did not have a genuine interest in and commitment to the Jehovah’s Witness faith is an ‘impossible conclusion’ and particular 10 asserts that this amounts to an error of law.
In interpreting this ground, I have taken into account the applicant’s oral submissions at the hearing in relation to his claims based on religion and his written submissions. Before addressing the applicant’s oral and written submissions in detail, I make the following observation. When viewed in the context of the applicant’s oral and written submissions, it appears that the applicant is seeking merits review and inviting the Court to come to a different conclusion on the facts. This is beyond the jurisdiction of the Court: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [31]. It is not open to the Court to reconsider the applicant’s claims for protection or to consider new evidence provided by the applicant to support his claims for protection.
Applicant’s oral submissions
In his oral submissions, the applicant said that he was asked to provide a letter from the Jehovah’s Witnesses. When he spoke to the Jehovah’s Witnesses, they told him that they could not provide him with anything because he had not been there long enough and they did not know him well enough. The applicant believes that they were scared because there had been a terror attack in Europe around that time.
Taking into account other information in the court book, I proceed on the assumption that it was the delegate who invited the applicant to provide a letter from the Jehovah’s Witnesses. The applicant was given an opportunity after his interview with a delegate to provide further information and a written response to the delegate’s concerns raised at the interview. However, he did not provide anything. The complaint that the Jehovah’s Witnesses would not give the applicant a letter is not a matter that gives rise to jurisdictional error in the Authority decision.
Applicant’s written submissions
In his written submissions filed after the hearing, the applicant provided information about his religion and how he came to take an interest in the Jehovah’s Witness faith. He expressed concern about harm he would face if he returned to Iran. He then proceeded to address a number of concerns raised by the delegate, including the following:
(a)in relation to the delegate’s concerns that the applicant provided false information about his identification, the applicant did not deny that he made a mistake, even if it had been a result of youth and bad advice, but submitted the fact that he came forward demonstrated a measure of conscience and remorse which is mostly as a result of his faith and learning more about God;
(b)in relation to the delegate’s concerns about the applicant’s inactivity in attending Christian church services, the applicant submitted that it was difficult to attend church service while he was in detention but he tried to attend the weekly meetings of Jehovah’s Witnesses at their Kingdom Halls and started studying the Bible with them as soon as he was released from detention;
(c)the delegate’s decision was made in haste and ignorance and the delegate did not do enough research in relation to the Jehovah’s Witnesses, which was said to be evident from the delegate referring to ‘Jehovah’s Witness’ rather than ‘Jehovah’s Witnesses’;
(d)the applicant’s marriage was not done in a religious manner because, as he and his wife were both non-witnesses, there was no basis for an elder to officiate at the wedding; and
(e)the applicant noted the delegate’s concerns about the fact that he never became baptised and provided an explanation for this.
The Court has no power to review the delegate’s decision, which is a primary decision within the meaning of s 476(4)(c) of the Migration Act: see s 476(2)(a) of the Migration Act. None of the matters raised by the applicant give rise to error in the Authority decision for the following reasons.
The Authority’s finding that the applicant’s willingness to present false claims, including in relation to his identity, and to maintain those claims over a lengthy period significantly undermined his general credibility was open to it on the evidence before it. The applicant’s submission to the Court seeks to attribute his subsequent provision of correct information about his identity to his religion. The Authority considered a similar submission and said at [26]:
… The applicant’s demonstrated willingness to make false claims for the purpose of staying in Australia, while again not determinative, does call into question the credibility of his claimed conversion. Although he claimed that he was now trying to be an honest and good person, had brought his documents and was telling the truth, and credited this to his new faith, I note that the applicant did not provide evidence of his true identity to the Department until February 2017, a year after he claims to have begun his interaction with the Jehovah’s Witness faith.
The applicant has not asserted any jurisdictional error in this aspect of the Authority’s reasoning, and his submission to this Court appears to be simply asking the Court to engage in merits review and make a different finding.
The Authority’s concerns about the applicant’s limited attendance at religious services in Australia was not based on any failure by the applicant to attend services whilst in detention. Rather, the Authority expressed concern that the applicant had claimed to have had an interest in Christianity before he arrived in Australia in November 2012, yet did not engage in any religious activity other than reading the Bible and speaking with a friend until March 2016. The Authority accepted that the applicant had attended some religious services in 2016. However, the Authority also expressed concern that the applicant’s religious activity had decreased over time. While the Authority accepted that the applicant’s wife’s pregnancy and mental health concerns might have had an impact on his ability to attend congregations or bible studies, there was no evidence before the Authority that the applicant had maintained any sort of religious practice at all in 2017.
It was open to the Authority to take these concerns into account as part of its reasoning for finding that the applicant did not have a genuine interest in the Jehovah’s Witness faith.
There is nothing in the Authority decision to suggest that the Authority was ignorant in any way in relation to the Jehovah’s Witness faith. The main matter identified by the applicant in relation to his complaint of ignorance on the part of the decision-maker, namely that at times the singular ‘Jehovah’s Witness’ was used rather than the plural ‘Jehovah’s Witnesses’, is a grammatical issue and does not reflect any misunderstanding of the applicant’s religion that would give rise to jurisdictional error.
The Authority did observe that the applicant’s actions in forming a relationship with a non-Jehovah’s Witness and marrying in a non-religious ceremony appeared to be at odds with his claim to have been adopting the Jehovah’s Witness faith into his life at that time. However, the Authority also acknowledged that this was ‘not determinative or entirely implausible’. The Authority made this finding after having summarised, at [23] of its reasons, the explanation of the applicant for not marrying in a church:
The applicant’s evidence was that his wife is not Jehovah’s Witness. He said he had attempted to explain the religion to her but could not force her to choose it. His evidence was that they were married through a civil celebrant in a notary office. It was put to him that his marriage in a non-religious ceremony could cause the delegate to question whether his interest in Christianity was genuine. The applicant said that there was no requirement to marry a Jehovah’s Witness and his marriage was because of love, not religious purposes. He also gave the somewhat contradictory responses that he had asked to have the marriage in a church but that it was costly, but that Jehovah’s Witnesses don’t believe in churches and so how could he do this then say he was a Jehovah’s Witness.
The explanation that the applicant now offers to the Court is different to that summarised by the Authority. It is not open to this Court to consider a new explanation advanced by the applicant and reach a different finding to the Authority. The Authority’s approach does not give rise to jurisdictional error.
The Authority did not place any adverse weight on the fact that the applicant had not been baptised and accepted the applicant’s explanation that the process for Jehovah’s Witnesses to become baptised is a lengthy one.
The applicant also provided two further documents which were filed as submissions, but which appear to be evidentiary in nature. The first is from a person who describes themselves as a friend of the applicant and discusses the steps that the applicant has taken to study the Bible. The second is a bundle of four documents relating to the mental health of the applicant’s wife. There is no indication that any of the specific documents provided to the Court had been provided to the delegate or the Authority. These additional documents do not allege or establish any jurisdictional error in the Authority’s decision.
Illogicality, irrationality or unreasonableness
I interpret the applicant’s written ground to also comprise an assertion that the Authority’s finding that he did not have a genuine interest in and commitment to the Jehovah’s Witness faith was unreasonable, illogical or irrational in light of its findings in relation to his knowledge of the Jehovah’s Witness faith and participation in religious activities. I therefore also consider the ground on this basis.
The test for whether a decision is illogical or irrational was explained by the High Court in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 where Crennan and Bell JJ said at [131] and [135]:
131.…The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or 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 a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
135.…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…
As explained above, the Authority accepted that the applicant had some knowledge of the Jehovah’s Witness faith, and accepted that the applicant attended bible studies and congregations on about 40 occasions. The Authority placed no adverse weight on the fact that he had not been baptised. These matters do not, however, inevitably lead to the conclusion that the applicant must have a genuine interest in and commitment to the Jehovah’s Witness faith.
The Authority gave detailed reasons for not being satisfied that the applicant had a genuine interest in and commitment to the Jehovah’s Witness faith. These reasons are summarised at [11] above and amount to a plausible justification for the Authority’s conclusion. A different decision-maker may have reached a different conclusion, but the conclusion reached by the Authority was open to it on the evidence. The weight to be given to the various evidence was a matter for the Authority as part of its fact-finding function: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]. There is nothing illogical, irrational or unreasonable in the Authority’s finding.
I also note for completeness that the Authority, having found that the applicant’s interest in the Jehovah’s Witness faith was not genuine, was not satisfied that the applicant had engaged in religious activities in Australia otherwise than for the purpose of strengthening his claims to be a refugee. Pursuant to s 5J(6) of the Migration Act, the Authority disregarded the applicant’s religious activities in Australia for the purpose of assessing whether he had a well-founded fear of persecution in Iran. This was appropriate on the part of the Authority, as s 5J(6) required the Authority to disregard any conduct engaged in by the applicant in Australia unless the applicant satisfied the Authority that he engaged in the conduct otherwise than for the purpose of strengthening his claims to be a refugee.
In considering complementary protection, the Authority correctly identified that s 5J(6) did not apply and proceeded to consider whether the applicant would face a real risk of significant harm in Iran as a result of his religious activities in Australia. The Authority found that there was not a real risk of the applicant being harmed because of his religious attendance and other conduct in Australia. The reasons the Authority gave for this finding include that it had found that the applicant had not discussed his conversion or religious activities with persons in Iran and had not posted anything about those matters on the internet, there was no evidence to suggest that the Iranian authorities or other people in Iran were aware of the applicant’s activities in Australia, and the applicant’s lack of profile in Iran suggested that the prospect of his activities in Australia coming to the attention of the Iranian authorities was remote. These reasons are cogent and amount to a plausible justification for the Authority’s conclusion. There is nothing illogical, irrational or unreasonable in the Authority’s finding.
Nothing raised by the applicant in his written application, or his oral and written submissions in relation to his religion establishes jurisdictional error in the Authority decision. Ground 1 is dismissed.
Other matters raised in the applicant’s oral submissions
The applicant made submissions at the hearing about the circumstances in which a visa that he held was cancelled and the hardship which he and his family are now facing. While I am not unsympathetic to the applicant’s circumstances, these matters do not allege or establish jurisdictional error in the Authority decision and the Court has no jurisdiction to grant relief in relation to these matters in this proceeding.
The applicant also raised concerns that when he attended the interview in relation to his protection visa, the delegate rejected him on the same day as the interview. Having reviewed the materials before the Court, it would appear that at the protection visa interview the delegate put to the applicant a number of concerns that the delegate had in relation to the applicant’s claims and invited the applicant to comment on those concerns. The applicant was afforded an opportunity after the interview to provide additional information, but did not do so. The delegate’s decision was then made approximately two months after the interview. It was entirely appropriate for the delegate to raise concerns with the applicant and to give the applicant an opportunity to address those concerns. As explained above, the delegate’s decision is not reviewable by the Court. Nothing in this aspect of the procedure adopted by the delegate gives rise to jurisdictional error in the Authority decision.
Issue raised by Minister as a model litigant: s 473GB certificate
In his role as a model litigant, the Minister raised an issue in relation to a non-disclosure certificate that was issued under s 473GB of the Migration Act.
On 16 May 2017 a delegate of Minister for Immigration and Border Protection issued a non-disclosure certificate under s 473GB of the Migration Act. The certificate notified the Authority that s 473GB applied to an identity assessment document in relation to the applicant on the basis that disclosure of the information in the document would be contrary to the public interest because the document is an internal working document which contains investigative methods used by the Department.
The Minister conceded that the Authority did not disclose to the applicant the notification or existence of the s 473GB certificate or the document that it covered. The Minister further acknowledged that the Authority did not refer to the s 473GB certificate in its decision or explain the exercise of its discretion under s 473GB(3) in its decision record.
The Minister submitted that pursuant to Part 7AA of the Migration Act, the Authority was under no obligation to disclose the existence of the certificate to the applicant or otherwise invite him to comment on it because the applicant’s entitlement in respect of the certificate were exhaustively stated in s 473GB(3) of the Migration Act and he was not owed common law procedural fairness. I agree.
Section 473GB of the Migration Act provides:
473GB Immigration Assessment Authority’s discretion in relation to disclosure of certain information etc.
(1) This section applies to a document or information if:
(a)the Minister has certified, under subsection (5), that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 473GA(1)(a) or (b)) that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or
(b) the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence.
(2)If, in compliance with a requirement of or under this Act, the Secretary gives to the Immigration Assessment Authority a document or information to which this section applies, the Secretary:
(a)must notify the Authority in writing that this section applies in relation to the document or information; and
(b)may give the Authority any written advice that the Secretary thinks relevant about the significance of the document or information.
(3)If the Immigration Assessment Authority is given a document or information and is notified that this section applies in relation to it, the Authority:
(a)may, for the purpose of the exercise of its powers in relation to a fast track reviewable decision in respect of a referred applicant, have regard to any matter contained in the document, or to the information; and
(b)may, if the Authority thinks it appropriate to do so having regard to any advice given by the Secretary under subsection (2), disclose any matter contained in the document, or the information, to the referred applicant.
(4)If the Immigration Assessment Authority discloses any matter to the referred applicant under subsection (3), the Authority must give a direction under section 473GD in relation to the information.
(5) The Minister may issue a written certificate for the purposes of subsection (1).
The High Court in BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29; [2019] HCA 34 at [2] and [29] confirmed that the Authority is not obliged to disclose the fact of notification under s 473GB(2)(a) to the applicant in a Part 7AA review. This is because s 473DA(1) of the Migration Act provides that Division 3 of Part 7AA, along with ss 473GA and 473GB ‘is taken to be an exhaustive statement of the natural justice hearing rule in relation to reviews conducted by the [Authority]’, and common law procedural fairness obligations therefore do not apply.
Pursuant to s 473GB(3), the Authority had the discretion to have regard to the information in the document and, if it considered it to be appropriate, to disclose the information in the document to the applicant. There is nothing in the Authority decision to indicate that it relied on the document the subject of the s 473GB certificate.
The Authority did not deny the applicant procedural fairness by failing to notify the applicant of the existence of the certificate or give the applicant an opportunity to respond to the information it contained. Accordingly, I find that the s 473GB certificate does not give rise to any jurisdictional error in the Authority decision.
Issue raised by Court: delegate’s possible failure to comply with s 57 of the Migration Act
Department file notes contained in the court book indicate that on 12 May 2017 the delegate contacted two people whose names the applicant provided as potential referees who could discuss his religious activities in Australia. This was just four days before the delegate’s decision and there is nothing in the court book to indicate that the applicant was advised of the information given by his referees prior to the delegate’s decision. At least some of the information given appears to have been relied on by the delegate as part of the reason for refusing to grant the applicant a visa. The delegate relevantly said:
In support of his involvement with the Jehovah Witness faith in Australia, the applicant did provide the names and contact details for two Jehovah’s Witness congregation members. The first referee noted that he has provided bible study instructions to the applicant over a period of six to seven months in 2016 at the [C] congregation. While this individual pointed out that only god knows what is truly in a person heart, he believed that the applicant’s motivations were genuine. The second referee was a member of the [D] congregation, and advised that he had provided the applicant with some bible studies instructions last year, but he has not seen the applicant at the congregation since December 2016. This is concerning given that this is the congregation that he claims to be currently attending and has done so this year, but not going as much as asserted at interview. This individual did not want to provide comment about whether or not he considered that the applicant was genuine in his commitment to the Jehovah’s Witness faith. While I take a cautious approach when giving weight to the subjective views of others regarding the genuineness of a person’s faith, taken with the other concerns that I hold his lack of attendance is telling.
The Authority referred to this information at [24] of its reasons, where it said:
The applicant provided the delegate with the names of two witnesses who had taught him bible studies. When contacted by the delegate, the first of these, [LD], indicated that he had provided religious instruction to the applicant for 6-7 months in 2016 and that he believed the applicant to be genuine in his commitment to the Jehovah’s Witnesses. He also made some comments regarding an email that he had received from the applicant which I have given no weight as they are not relevant to the issues being decided in this review. The second, [VR], from the applicant’s current congregation, said that the applicant had attended bible instruction classes towards the end of 2016 but that he had not seen him at the [D] congregation since December 2016. This witness said that he was not in a position to comment on whether or not the applicant’s engagement with the religion was genuine. It is not apparent that these comments were put to the applicant by the delegate. However, the relevant parts are set out in the delegate’s decision and the applicant has now responded to them in the submissions and material provided to the IAA.
At the hearing before the Court, I raised with the parties that the delegate appeared to have breached s 57 of the Migration Act by not notifying the applicant of the delegate’s reliance on adverse evidence from the witnesses. I invited the parties to make submissions in relation to the approach taken by the Authority and whether this remedied any potential defect in the process adopted by the delegate.
Mr Daly, on behalf of the Minister, submitted that the applicant had been provided with the delegate’s reasons and had the opportunity to provide further submissions to the Authority in light of these findings. Mr Daly also submitted that it was immaterial that the information was not particularised as the delegate’s decision included all relevant aspects of the adverse information and the applicant therefore had the opportunity to respond to the delegate’s findings in his review before the Authority.
I also invited the applicant to provide comments in relation to this issue. The applicant spoke again of the reluctance of his witnesses to provide information about him and the possible reasons for this. He did not say anything to suggest that he was not on notice of the relevant issues.
A breach of s 57 will not necessarily lead to jurisdictional error in the Authority decision. The High Court in Plaintiff M174/2016 at [49] said that where there has been a non-compliance of s 57(2) of the Migration Act by the delegate at the time of making the decision to refuse the grant of a protection visa, the Authority has the discretionary power to fashion its own procedures to bring the relevant information to the attention of the applicant and invite the applicant to respond under s 473DC(3) of the Migration Act. The High Court warned that the Authority may risk transgressing the bounds of reasonableness in the conduct of the review if it were to treat the information as the reason, or part of the reason, for affirming the decision to refuse to grant a protection visa without first exercising the discretion conferred by s 473DC(3) to invite the applicant to provide further information.
In the present case, I do not express any definitive view about whether s 57 of the Migration Act was breached and it is not necessary for me to do so. I am satisfied that the applicant had an opportunity to provide comments to the Authority about the information provided by his witnesses, irrespective of whether there was any breach of s 57.
On 22 June 2017 the applicant, by his representative, provided to the Authority a written submission in support of his application. In this submission, the applicant included extracts of sections of the delegate’s decision in relation to the finding that the applicant did not have a genuine interest in Christianity and the Jehovah’s Witness faith, including that extracted at [63] above, and provided responses to each extracted section. The applicant submitted:
We submit that the delegate gave disproportionate weight to the evidence given by the second witness. The delegate note that the first witness believed that the applicant’s motivations were genuine, however, the delegated decided to give more weight to the second witness’s submission, based on which the delegate found that the applicant’s claimed faith is not genuine. We submit that the applicant’s wife was having a difficult pregnancy at the time and he was highly occupied by looking after her. We advise that their daughter, [name], was born on [date]. His wife is suffering from bipolar disorder and she has not yet been discharged from the hospital since she gave birth. …
We submit that the applicant’s wife has been highly dependent to him in particular during the last few months. The fact that the applicant has not been able to attend the Kingdom Hall regularly since the start of 2017 does not mean that the applicant is not interested to Christianity.
To the extent that this response included new information, the Authority was satisfied that the requirements of s 473DD were met and it had regard to the information.
In circumstances where the applicant exercised an opportunity to provide submissions commenting on the information obtained by the delegate, at least to the extent that that information was relied upon by the Authority, any non-exercise by the Authority of the discretion in s 473DC(3) to invite the applicant to provide further new information was not unreasonable.
It follows that no jurisdictional error arises in relation to the information provided by the two witnesses.
CONCLUSION
I have found that there is no jurisdictional error in the Authority decision. Accordingly, the application to this Court must be dismissed.
I certify that the preceding seventy-four (74) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 16 June 2022
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