DWN16 v Minister for Immigration

[2018] FCCA 1911

FEDERAL CIRCUIT COURT OF AUSTRALIA

DWN16 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1911

Catchwords:
MIGRATION – Immigration Assessment Authority – Safe Haven Enterprise visa – fast track reviewable decision – whether the applicant claimed before the delegate that he had been interested in Christianity since he came to Australia – whether the Authority acted unreasonably in a legal sense by not inviting the applicant to give new information in an interview when the Authority’s decision turned on adverse assessments of credibility on matters that the delegate had accepted – whether the Authority was obliged to review the delegate’s decision in the sense of making findings about particular findings made by the delegate.

Legislation:
Migration Act 1958, ss.57, 473CC, 473DA, 473DC, 473DD

Cases cited:
BMB16 v Minister for Immigration and Border Protection (2017) 253 FCR 448; [2017] FCAFC 169
DBE16 v Minister for Immigration and Border Protection [2017] FCA 942
DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12
Fox v Percy (2003) 214 CLR 118; (2003) 197 ALR 201; (2003) 77 ALJR 989; (2003) 24(8) Leg Rep 2; (2003) 38 MVR 1; [2003] HCA 22
Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475; [2017] FCAFC 210
Minister for Immigration and Border Protection v DZU16 (2018) 253 FCR 526; [2018] FCAFC 32
Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 353 ALR 600; [2018] HCA 16

Applicant: DWN16

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File number: MLG 2734 of 2016

Judgment of: Judge Riley

Hearing date: 16 April 2018

Date of last submission: 16 May 2018

Delivered at: Melbourne

Delivered on: 13 July 2018

REPRESENTATION

Counsel for the applicant: Natalie Blok

Solicitors for the applicant: Kerdo Legal

Counsel for the first respondent:	Catherine Symons
Counsel for the second respondent:	No appearance

Solicitors for the respondents: DLA Piper Australia

ORDERS

1. The application filed on 15 December 2016, amended on 5 March 2018 and further amended on 4 April 2018 be dismissed.

2. The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $7,328.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2734 of 2016

DWN16

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First respondent

And

IMMIGRATION ASSESSMENT AUTHORITY

Second respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for review of a decision made by the Immigration Assessment Authority (“the Authority”).  In that decision, the Authority affirmed a decision of a delegate of the Minister for Immigration and Border Protection not to grant the applicant a Safe Haven Enterprise (subclass 790) visa.

2. The application was listed for a show cause hearing on 16 April 2018. However, the hearing proceeded on the basis that it was a final hearing. By emails dated 6 July 2018 and 10 July 2018, the first respondent and the applicant respectively agreed that the court should determine the matter on a final basis.

The applicant’s claims

1. The applicant claimed that:

   a)he was a citizen of Iran;

   b)he was born in 1989;

   c)he was a Shia Muslim by birth;

   d)he no longer had any religion;

   e)during his military service, he refused to follow orders to harm people;

   f)as a result, he was locked up for three days and beaten and tortured;

   g)at the end of July 2012, during the month of Ramadan, he and two friends got drunk on vodka;

   h)they went for a drive and happened upon some Basij at a checkpoint;

   i)the Basij were in plain clothes;

   j)the Basij stopped and searched the applicant and his friends;

   k)the Basij realised they were drunk and beat them;

   l)the applicant and his friends swore against Islam and against the Ayatollah Khomeni;

   m)bystanders intervened to assist the applicant and his friends;

   n)the applicant and one of his friends escaped;

   o)the other friend, Benjamin, was unable to escape and was beaten with a baton and his legs were broken;

   p)the applicant stayed the night at his friend’s house;

   q)the applicant’s father telephoned him in the morning and said two Basiji officers had been to his house looking for him;

   r)the applicant left Iran;

   s)since then, his father had received summonses requiring the applicant to attend the Revolutionary Court;

   t)the applicant had heard that Benjamin was imprisoned for two years and died in prison; and

   u)the applicant believed Benjamin died from torture.

The delegate’s decision

1. The delegate accepted that the applicant was detained for three days for not following orders during his military service.  The delegate also accepted that the applicant and his friends drank vodka during the month of Ramadan.  

2. However, the delegate considered that it was implausible that the applicant and his friends would have drawn attention to themselves by driving to a well-known checkpoint and engaging in a physical altercation with the Basij.

3. The delegate did not accept that the photocopied summonses the applicant had produced were genuine, particularly as he had been able to produce original identity documents.  The delegate concluded that the applicant was unable to produce the original summonses.

Written submissions following the delegate’s decision

1. The applicant said in his written submissions to the Authority:

   a)the applicant had no religion but had been interested in Christianity since he came to Australia;

   b)the checkpoint was not well-known but was a stop and inspection trap that the applicant had no idea existed; and

   c)the delegate did not ask for the original summonses so it was unclear how he concluded that the applicant was unable to provide them.

The Authority’s decision

1. The Authority said that it did not consider the applicant’s submissions relating to the delegate’s assessment to be new information, as defined in the Migration Act 1958 (“the Act”). However, the Authority did consider that information that pre-dated the delegate’s assessment, which included the applicant’s claim that he had been interested in Christianity since he came to Australia, and a United Kingdom Home Office report from December 2015, was new information as defined and did not consider it.

2. The Authority accepted that the applicant had no religion but did not find credible that he was committed to speaking out against religion and the system in Iran.  The Authority did not accept that:

   a)the applicant was detained or tortured for disobeying orders during his military service;

   b)the applicant had received summonses for the reasons claimed;

   c)the applicant’s account of his interaction with the Basij was plausible, particularly in relation to the applicant’s claim that bystanders had become embroiled in the altercation;

   d)Benjamin was arrested and imprisoned, or forced to say that the applicant had converted to Christianity; or

   e)the applicant was wanted by the Iranian authorities.

3. The Authority did accept that the applicant had possibly received a summons to appear in court.  However, as summons did not specify the matter it involved, the Authority did not regard it as corroborative of the applicant’s claims to be wanted by the authorities for an incident involving the Basij.

Grounds relied upon

1. In relation to the application filed on 15 December 2016, amended on 5 March 2018 and further amended on 4 April 2018 (“the application”), the applicant said at the hearing that he withdrew grounds 2, 5, 10 and 11.  Consequently, I say nothing more about them.

Ground 1

1. The first ground of review in the application is:

   The Second Respondent (the Authority) erred in finding it was excluded under section 473DB of the Migration Act 1958 (Act) from considering the following ‘information’: ‘a claim that the applicant has been interested in Christianity since he came to Australia’ on the basis that it was ‘new information’ when in fact it was before the Delegate.

   Particulars

   (a)In written submissions, dated 12 September 2016, the applicant’s migration agent submitted: ‘At the PV Interview the applicant stated that he has no religion but he has been interested in Christianity since he came to Australia’ [CB202 [5]].

   (b)In the interview with the Delegate on 9 February 2016, the applicant raised his interest in Christianity when he clarified that he hadn’t changed his religion yet, but that when he was in Iran, he didn’t know about Christianity, and when he explained that he was not put off religion altogether, rather, only Islam.

   (c)The Authority found that the ‘new information’ in the written submissions comprised: ‘a claim that the applicant has been interested in Christianity since he came to Australia’ [CB236 [5]].

2. The written submissions dated 12 September 2016 were written after the delegate’s decision was made.  However, those submissions claim that the applicant said during his interview with the delegate that he had been interested in Christianity since he came to Australia.

3. The applicant said that it is self-evident from the transcript of the applicant’s interview with the delegate that he said that he had been interested in Christianity since he came to Australia.

4. However, a transcript of the applicant’s interview with the delegate was exhibited to the affidavit affirmed by Leonard Keith Leerdam on 19 March 2018. The transcript relevantly says at page 29:

   MEMBER: Okay. Now, did you change your religion?

   THE INTERPRETER: I haven’t changed my religion.

   APPLICANT:      Yet.

   THE INTERPRETER: But when – because when I was in Iran, I didn’t know anything about Christianity.

   MEMBER: But you got put off religion altogether when you were in Iran?

   THE INTERPRETER: No. No. From Islam. From Islam I completely cut myself off.

5. I do not accept that that exchange amounts to a claim that the applicant has been interested in Christianity since he came to Australia.  That is, I accept that claim amounted to new information that the Authority was not obliged to consider.  This ground is without substance.

Ground 3

1. The third ground of review in the application is:

   Further or in the alternative, the Authority failed to deal with a claim, or an integer of a claim, namely that the applicant had been interested in Christianity since he came to Australia and thereby failed to perform its statutory task.

   Particulars

   (a)The applicant refers to and repeats particulars of Ground 1 hereof.

2. For the reasons discussed in relation to ground 1, this ground is without substance.

Ground 4

1. The fourth ground of review in the application is:

   Further or in the alternative, the Authority acted unreasonably in the legal sense by failing to consider whether to exercise the discretion in section 473DC(3) to invite the applicant to give new information in an interview in circumstances where:

   a. the Authority’s decision turned on adverse assessments of credibility that were contrary to the Delegate’s findings on those matters following an interview with the applicant; and

   b. the only two adverse credibility assessments made by the Delegate were premised on errors of fact in misunderstanding the claim which misunderstandings were addressed in the written submissions of 12 September 2016.

   Particulars

   (a)Except for the following two matters, the Delegate found that the applicant was credible in his claims.

   First, the Delegate rejected the claim that the applicant had an altercation with the Basij on the basis that it was inconsistent with his history and therefore not plausible that he and his friends would ‘deliberately’ drive into a ‘regular’ or a ‘known’ or a ‘well-known’ Basij checkpoint [CB173-174].

   Second, the Delegate rejected that the applicant had been issued with a summons to appear because he was ‘unable to furnish the original claiming he does not have it nor knows where it is’ [CB 174].

   (b)The applicant addressed these matters in its written submissions to the Authority [CB204-CB205 [12]-[16]; [18]-[19]].

2. Section 473DC of the Act provides that:

   (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.

3. It is also helpful at this point to set out s.473DD of the Act, which is as follows:

   For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless: 

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

   (b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information: 

   (i)was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

   (ii)is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.

4. The applicant noted that in Minister for Immigration and Border Protection v DZU16 (2018) 253 FCR 526; [2018] FCAFC 32 and Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475; [2017] FCAFC 210, the Full Court of the Federal Court found that it was legally unreasonable for the Authority to not consider getting documents or information from the applicant on a particular topic.

5. In CRY16 Robertson, Murphy and Kerr JJ said:

   67.It is also relevant that, as explained by Gageler J in Li at [92], reasonableness is closely linked to procedural fairness. Nevertheless, in light of the terms of s 473DA it is important to consider the present issue through the lens of Div 3 and the principles of legal reasonableness rather than the principles of procedural fairness. In other words, was it legally reasonable in the circumstances of the particular case for the Authority not to consider the exercise of its power to get documents or information? Thus although we accept the Minister’s submission that the respondent had no inkling, and no way of having an inkling, that the Authority was going to accept the case he had put to the delegate but then decide against him on a different basis, we do not consider that the procedural fairness perspective exhausts the legal analysis. Further, in our opinion, that the outcome is unfair “in an ordinary sense”, as accepted by Senior Counsel for the Minister, is not irrelevant to whether or not there has been legal unreasonableness in the exercise or non-exercise of statutory powers.

   …

   76. The Authority knew or must be taken to have known that the question of relocation had not been considered by the delegate. The Authority must also have been taken to have known that the question of relocation depended on the particular circumstances of the respondent. As found by the primary judge, there was nothing in the interview with the delegate that concerned the question of relocation. The transcript of that interview is before the Court and we agree with that finding.

   …

   82. Our conclusion is that it was legally unreasonable, in the circumstances, not to consider getting documents or information from the respondent. The legislature is to be taken to intend that the Authority’s statutory power in s 473DC will be exercised reasonably. The failure to consider the exercise of that discretionary power lacks an evident and intelligible justification in circumstances where the Authority knew that it did not have, but the respondent was likely to have, information on his particular circumstances and the impact upon him of relocation to Beirut. The Authority did not have that information because the question of relocation, either at all or to Beirut, was not explored, or the subject of findings, by the delegate. The Authority’s failure to consider the exercise of that discretionary power meant that it disabled itself from considering what was reasonable, in the sense of “practicable”, in terms of relocation. In our opinion, as a consequence, the review by the Authority under s 473CC miscarried for jurisdictional error.

6. In CRY16, the unreasonableness arose from the fact that the Authority decided that the applicant could relocate when the question of relocation had not been canvassed by the delegate and there was accordingly no, or no sufficient, material before the Authority relating to the applicant’s personal circumstances in the event of a relocation.

7. In DZU16, Robertson, Murphy and Kerr JJ said:

   65.The discretion in s 473DC(3) existed to be exercised in an appropriate case, in aid of the objective of making the correct or preferable decision. In circumstances where, as here, the respondent could not have known of the issue dispositive of the review of his case without being informed, and where there was a power to inform him of that issue and seek information or comment relevant to it, the failure to exercise or consider exercising the relevant power to inform him of the issue lacked an evident and intelligible justification, in addition to having resulted in an unfair procedure.

   66.Thus, contrary to the Minister’s submissions, it was unreasonable for the Authority not to consider giving the respondent an effective opportunity to address the issue that it found dispositive. …

   …

   79.… if the Authority had not been mistaken as to its obligation to act under s 473DE, then to carry out its statutory task of review in a legally reasonable way it would have had to consider acting under s 473DC: see Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210 (CRY16). In that way the Authority’s mistake had an operative effect on the performance by it of its statutory task of review. We would not accept the Minister’s submission that, because s 473DE did not apply, the mistakes made by the Authority did not have a legal or jurisdictional consequence. It is common ground that the Authority did not consider acting under s 473DC and this was because it wrongly considered that it was under a duty under s 473DE to invite the respondent to give comments.

   80.CRY16 establishes that particular circumstances may arise in the course of a review that may, as a matter of legal reasonableness, require the Authority to consider exercising its discretion under s 473DC. That is so notwithstanding that s 473DA(1) provides that the provisions of Div 3 of Pt 7AA of the Migration Act “are to be taken to be an exhaustive statement of the natural justice hearing rule in relation to reviews conducted by the Authority”.

   81.The application of the principles in CRY16 that meant that it was legally unreasonable for the Authority not to have considered the exercise of its statutory power under s 473DC leads to a comparable conclusion in these proceedings, although the circumstances in which the Authority did not consider the exercise of that power in the present proceedings are different. In the present case the Authority decided that it had new information, albeit country information, and that there were exceptional circumstances that would justify it considering that new information. As in CRY16, the Authority was considering whether it would be safe for the review applicant to relocate within a country in circumstances where he might otherwise be entitled to protection, and whether it would be reasonable in the sense of “practicable” for him to do so. This depended upon the particular circumstances of the respondent, the applicant for refugee status, and the impact upon that person of relocation of the place of residence within the country of nationality: SZATV v Minister for [I]mmigration and Citizenship [2007] HCA 40; 233 CLR 18 at [24]. In each case the Authority had decided to take into account new material which had not been before the Minister’s delegate. As the Authority said in the present case at [51], “the delegate asked [the respondent] questions about relocation to Kabul in his visa interview, but not Mazar-e-Sharif”. The errors as to time limits, considered at [75] above, would also be relevant to the extent that it is contended that the mistaken resort to s 473DE yielded no response and the same should be taken to apply to the jurisdictional error of the Authority in failing to consider acting under s 473DC.

1. In DZU16, the issue was whether the applicant should have been given an opportunity to comment on the practicability of relocating to Mazar-e-Sharif, and the form that opportunity should take, when the delegate had only canvassed the possibility of the applicant relocating to Kabul.

2. Following the hearing before this court, the High Court handed down its decision in Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 353 ALR 600; [2018] HCA 16. In that decision, the High Court confirmed that a decision under Part 7AA of the Act could be legally unreasonable. The issue in Plaintiff M174 arose from the applicant’s claim that he attended a particular church regularly.  The delegate obtained information from the reverend of the church about the applicant’s attendance.  The delegate did not give the applicant an opportunity to comment on the information obtained from the reverend.

3. The High Court considered that, if the information had been adverse, there would have been exceptional circumstances within the meaning of s.473DD(a) of the Act, constituted by the delegate’s failure to comply with s.57(2) of the Act, and it would then have been necessary to consider whether the additional requirements of s.473DD(b) of the Act, which contains two alternatives, were met.

4. However, the High Court considered in Plaintiff M174 that the delegate had not breached s.57(2) of the Act, because the information obtained from the reverend, supported the plaintiff’s claim, so far as it went.[1]  The High Court then determined that it had not been legally unreasonable for the Authority, in the circumstances of that case, to fail to exercise its statutory powers to get or consider new information.

   [1] Paragraph 72.

5. In the present case, the applicant said that the legal unreasonableness arose in the following circumstances. The delegate, who had personally interviewed the applicant, accepted as credible certain facts that the Authority, without interviewing the applicant, did not accept.  Those facts were that:

   a)the applicant had refused to follow orders during his military service and spent three days in detention as a result; and

   b)the applicant and his friends drank vodka during Ramadan.

6. The applicant said that, moreover, the delegate did not accept as credible certain facts based on misapprehensions that the applicant said were cured by written submissions to the Authority.  The applicant said those misapprehended facts were that:

   a)the applicant and his friends went to a known Basij checkpoint; and

   b)the applicant was not able to produce an original summons.

7. The issue about whether the applicant was able to produce an original summons proved to be irrelevant, because the Authority considered that, as the summons did not say anything about the reason that it had been issued, it was not corroborative of the applicant’s claims about the Basij.  That is, the summons might have concerned a speeding ticket.  It was not unreasonable for the Authority to not consider giving the applicant an opportunity to give evidence to the Authority about a matter the Authority found to be irrelevant.

8. Similarly, the issue about whether the applicant went to a known Basij checkpoint also proved to be irrelevant, because the Authority found the applicant’s account to be implausible for reasons unconnected with whether the checkpoint was well-known or otherwise.  The Authority found the applicant’s account to be implausible because:

   a)the Authority did not consider it plausible that bystanders would voluntarily become embroiled in an altercation at a Basij checkpoint (whether well-known or a stop and inspection trap) between the Basij and some unknown individuals, given the sometimes heavy-handed role played by the Basij in Iran’s domestic security affairs; and

   b)the Authority did not consider it plausible that the applicant could have escaped the scenario he had described simply by running away and catching a taxi to a friend’s house.

9. Similarly, the issue about whether the applicant drank vodka with his friends also proved to be irrelevant.  The Authority did not say one way or the other whether it accepted this claim.  However, the Authority did not accept that the applicant, in a drunken state, came to the attention of the Basij.  Therefore, whether the applicant drank vodka or not was irrelevant.

10. Contrary to the delegate’s findings, the Authority did not accept that the applicant disobeyed orders during his military service and was detained for three days and tortured.  The Authority said about this claim:

    16.As noted above, Sepah is a powerful security organisation controlled by the Iranian state and charged with suppressing dissent and maintaining Iran’s internal security. According to the applicant’s military service completion certificate, his service commenced on 8 December 2008 and finished exactly 18 months later on 8 June 2010. I do not accept as plausible that if the applicant, as a conscript, had demonstrated dissent, disobeyed orders from Sepah commanders and been detained and tortured for three days, he would then be allowed to freely complete the remainder of his military service with Sepah. The fact that he completed military service on time and without any delay with an organisation as prominent in Iran’s internal security operations as Sepah, indicates strongly that the applicant encountered no adverse consequences during his period of military service. As a result I do not accept that he was detained or tortured for dissenting and disobeying orders.

11. The delegate dealt with this issue as follows at CB172:

    Around 2009, when he was about 8 or 9 months into his compulsory military service with the Sepah, he along with about 60 other soldiers were deployed to break up a political demonstration of about 500 people comprising a large number of women and children. He stated he found it abhorrent to use a baton on peaceful protestors and he reneged on his duty by removing his helmet and mask, took a taxi and went home.

    The next day when he reported for duty he found himself before a disciplinary committee investigating his actions. He was found to have abandoned his duty and was punished with three days jail. He voiced his inability to take physical action against women but was instructed that as a soldier he had to obey the orders of his commander regardless. His evidence indicates that after his release he continued with his military service and successfully completed it but his completion paperwork was delayed. Whenever he followed it up, he was questioned about what he was doing and where he was living.

    I considered the applicants evidence and find his account of reneging on his orders to be credible. He provided a good amount of detail and appeared to be speaking from personal experience without embellishing his experience. I accept he was detained for three days and by his own account for not following orders in a military work space. I note that he was not denied his completion papers. In a country where several million undertake military service at a time, I find it quite plausible for there to be administrative delays in handing out completion certificates. Therefore, I accept he was disciplined for breaching orders and received his completion papers late but there is little to indicate it was to penalise him in any way.

12. As can be seen, the Authority disbelieved the applicant’s account because it considered that, if his story had been true, he would not have been able to complete his military service on time, as documents indicated he had done.  The delegate also, apparently, accepted that the applicant completed his military service on time, but did not draw the inference from that circumstance that the applicant had not been detained for three days.  On the contrary, the delegate relied on his assessment that the applicant:

    provided a good amount of detail and appeared to be speaking from personal experience without embellishing his experience.

13. In other words, the delegate relied on the advantage that a trier of fact has over an appeal court in assessing credibility to conclude that the applicant was detained for three days for not following orders during his military service. 

14. The Authority did not alert the applicant to the possibility that it might take a different view of the material about the applicant being detained for three days to the view taken by the delegate, or seek the applicant’s comments on whether the Authority ought to take a different view.

15. The Minister argued that it is settled that Part 7AA of the Act does not impose procedural fairness obligations of the sort imposed on the Administrative Appeals Tribunal under Parts 5 and 7 of the Act. The Minister relied on DBE16 v Minister for Immigration and Border Protection [2017] FCA 942 and DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12.

16. In DBE16, Barker J said at [59]:

    I accept the Minister’s submissions that no denial of natural justice arises from the mere fact that the Authority made different findings to those findings made by the delegate on the limited merits review system available under the fast track scheme. The Pt 7AA merits review system appears to operate on the understanding that the reviewer reconsiders all facts and so may make factual findings different to those of the original decision-maker. There is nothing in Pt 7AA of the Migration Act that suggests that the Authority is unable to make findings adverse to an applicant where the delegate made a finding favourable to the applicant in relation to the same issue. In this regard, there is force in the Minister’s submission that the principles in SZBEL v Minister for Immigration (2006) 228 CLR 152; [2006] HCA 63 do not apply to reviews under Pt 7AA of the Migration Act. …

17. In DGZ16, Reeves, Robertson and Rangiah JJ said at [72]:

    In our opinion, Pt 7AA contemplates that the Authority will evaluate for itself the material considered by the delegate. We do not consider that the fast track statutory regime of Pt 7AA requires the Authority to notify the referred applicant that it is considering taking a different view, adverse to the referred applicant, of the material considered by the delegate. To that extent we agree with the primary judge, at [106], that the Authority is not required to inform the appellant of specific reservations about the appellant’s case and to provide the appellant with an opportunity to respond.

18. The Minister noted s.473DA of the Act, which provides that:

    (1) This Division, together with sections 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority.

    (2)  To avoid doubt, nothing in this Part requires the Immigration Assessment Authority to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.

19. Sections 473GA and 473GB of the Act are presently irrelevant. The Minister argued that, even leaving aside s.473DA of the Act, the established position is that a decision-maker does not need to alert an applicant to the decision-maker’s thinking processes in relation to the applicant’s evidence.

20. In addition, the Minister argued that the applicant’s contention that it was unreasonable for the Authority to not at least consider getting new information from the applicant was difficult to reconcile with s.473DC(2) of the Act, which provides that:

    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.

21. The Minister also noted that, in Part 7AA of the Act, the Parliament has authorised a limited review that ordinarily occurs on the papers, and has emphasised the values of speed and efficiency.

22. Moreover, the Minister emphasised that the applicant himself did not ask the Authority to interview him.

23. Finally, the Minister submitted that the applicant’s reliance on CRY16 and DZU16 was misconceived because those cases were clearly distinguishable as they were based on circumstances where the Authority could be taken to have known that the applicant would have had information about his particular circumstances that would have borne on the issue of the practicability of relocation to certain places, being information that there had been no reason to put before the delegate.

24. CRY16 and DZU16 are clearly distinguishable.  In those cases, the applicant had not given any evidence at all on the relevant point, because he did not know it was relevant.  In the present case, the applicant did give evidence on the relevant point to the delegate, being the evidence that the applicant had been detained for three days and tortured during his military service for not obeying orders.

25. Obviously, the Authority on review is able to make different findings of fact to the delegate, whether those findings of fact are favourable or unfavourable to an applicant.  That is in the nature of a de novo review.

26. The point made in DBE16 was that it is not an actionable denial of procedural fairness for the Authority to make a different finding to the delegate.  However, the applicant’s complaint in the present case is not about procedural fairness, but legal unreasonableness.  The Full Court of the Federal Court (Reeves, Robertson and Rangiah JJ) confirmed in DGZ16 at [70] that:

    … there may be circumstances in which it is legally unreasonable not to consider the exercise of the discretionary power in s 473DC(3).

27. In DGZ16, the court did not find that the circumstances were such as to render it legally unreasonable for the Authority to not consider the exercise of its discretionary power under s.473DC(3) of the Act.

28. However, as explained by the plurality in Plaintiff M174 at [28]:

    Section 473DD imposes restrictions on when the Authority can consider new information.

29. That is, the Authority’s discretion in s.473DC(3) of the Act to invite an applicant to give new information at an interview is of no benefit if the Authority is not able to consider the new information due to the requirements in s.473DD. As the plurality said in Plaintiff M174:

    29.The precondition set out in s 473DD(a) must always be met before the Authority can consider any new information. …

    …

    31.Cumulatively upon the precondition set out in s 473DD(a) … s 473DD(b) sets out a further precondition that must also be met before the Authority can consider new information that is given to it, or proposed to be given to it, by the referred applicant. In respect of new information within that category, the Authority must be satisfied of one or other of the circumstances set out in s 473DD(b)(i) and (ii).

30. Leaving aside the question of whether there may have been exceptional circumstances justifying the consideration of new information in the present case, the applicant has not pointed to any information that the applicant could have given to the Authority that could have met the requirements of s.473DD(b)(i) or (ii) of the Act. Those requirements are that the new information was not and could not have been provided to the delegate, or, alternatively, that the new information was credible personal information not previously known to the applicant.

31. The applicant’s case before this court was not that he had any new information to give the Authority that fitted within s.473DD(a) and (b)(i) or (ii) of the Act, but that fairness and reasonableness required that he be given the opportunity to persuade the Authority of his credibility at an interview. That submission simply does not address the requirements of the Act.

32. The applicant has not pointed, either in submissions to the Authority or in submissions to the court, to any information that he could have given the Authority that would have fitted within the requirements of s.473DD. I am unable to think of any such information. Moreover, the applicant did not ask the Authority to conduct an interview with him, or offer any reason to the Authority for conducting an interview with him.

33. In such circumstances, it cannot be said that it was unreasonable for the Authority to not consider whether to exercise its power under s.473DC(3) of the Act. That is because, without some realistic prospect of the Authority being able, under s.473DD of the Act, to consider information given by the applicant orally to the Authority, there was no point in the Authority considering whether to invite the applicant under s.473DC(3) of the Act to give such information.

34. The applicant’s case before this court was that he should have been given an opportunity to be personally interviewed by the Authority, so that the Authority might have come to the same view of his credibility as the delegate had.  The applicant emphasised cases such as Fox v Percy (2003) 214 CLR 118; (2003) 197 ALR 201; (2003) 77 ALJR 989; (2003) 24(8) Leg Rep 2; (2003) 38 MVR 1; [2003] HCA 22, which deal with the assessment of credibility by triers of fact and the role of appeal courts. However, to the extent that the applicant sought to draw an analogy between the Authority and an appeal court, the analogy is not sound. The Authority has a very different function to an appeal court, and very different statutory limitations, as described in Plaintiff M174.

35. It is also noteworthy that the Authority in the present case took a different view of the documentary evidence to the view taken by the delegate.  That is, the Authority considered that the fact that the applicant was able to complete his military service on time meant that he had not been detained for three days during his military service.  An appeal court is able to rely on documentary evidence to disturb findings made by a trier of fact.

36. In the abstract, it may seem unreasonable for the Authority to decide issues of credibility without interviewing an applicant. However, given the scheme of Part 7AA of the Act, it is not legally unreasonable for the Authority not to consider interviewing an applicant, even in relation to issues of credibility, unless the Authority could consider the information given by the applicant at interview under s.473DD of the Act.

37. Ground 4 is not made out.

Ground 6

1. The sixth ground of review in the application is:

   Further or in the alternative, the Authority was obliged, and failed, to consider the applicant’s submissions addressing the Delegate’s finding about the altercation with the Basij claim and the summons should the applicant be returned to Iran and thereby failed in its statutory task to ‘review the decision’.

   Particulars

   (a)The Delegate, made a finding that ‘it was implausible that [the applicant and his friends] would then drive into a well-known checkpoint and having done that then engage with the Basij in a physical altercation’ [CB174]

   (b)The applicant made detailed submissions at paragraphs [13], [14], [15] and [16], and at [20]-[27] of the written submissions in response to these findings [CB204] – [CB2-6.

   (c)The Authority did not consider these submissions to be ‘new information’.

2. At the hearing on 16 April 2018, the applicant was given leave to amend this ground to include the words should the applicant be returned to Iran after the word summons, and to add to particular (b) paragraphs 14, and 20 to 27 of his written submissions dated 12 September 2016 to the Authority.  Those paragraphs are as follows:

   14. UK Home office report of December 2015 states that ‘The Journal of Middle East and Africa also stated that the Basij made use of ‘checkpoints (inspection and stop trap) and street patrols’, which were ‘usually carried out in crowded areas, such as streets around universities, in squares, and at intersections’. It was also noted that these were ‘also conducted in the mountains in the north of Tehran, where many people go hiking on weekends’’ [Emphasis added].4 According to the DFAT report, ‘[…] The Basij often patrol the streets and conduct checkpoints, particularly when there is a heightened security atmosphere or after large events. It is believed that Basij members often receive very little formal training. They could at times operate without orders or objectives, resulting in unpredictable interactions with civilians.’5 (emphasis in original)

   4 Country Information and Guidance Iran: Background Information, including actors of protection and internal relocation., December 2015, at 9.5.4

   5 DFAT Country Information Report: Iran, 29 November 2013, at 5.8

   …

   20. The applicant stated that he fled Iran to avoid persecutions from the Iranian authorities. He was in trouble because of the incident with Basij. The applicant maintained that he has never believed in Islam. However, the incident put him in a situation that he had to face with serious harm if he could not flee Iran. It is submitted that the applicant could certainly be convicted to lashes and imprisonment because of consumption of alcohol. Especially, because it happened in the month of Ramadan, his sentence would be at least double the normal situation according to the Sharia Law applied in Iran.

   21.At the interview, the delegate stated that drinking alcohol would not be an issue to the applicant if he was hold before a judge in Iran as he did not believe in Islam and the only problem could be the altercation with Basij. The delegate assumed since he was a young person and because of having a clean criminal history, having a job and completing military service, it would be highly likely that a religious judge in Iran would let him go.6 In response, the applicant stated that the authorities would conduct a background check on him and they would learn about his protest in form of disobeying orders by not attacking the protestors at the time of his military service and he will be taken as a person with opposite political views. Nevertheless, the applicant was not given enough chance to provide his full response to the delegate’s assumption because the delegate quickly changed the topic.

   22. It is submitted that the delegate simply overlooked the fact that the religious judge in Iran would deem the applicant as a Muslim because he belongs to a Muslim family and therefore, he will be convicted for drinking alcohol. The punishment for drinking alcohol and other offences defined by the Sharia Law is significant during specific Islamic calendar months, including the month of Ramadan. As the applicant asserted at the interview, he could not confess of having no religion and being an apostate before a religious judge in Iran. If he admits that he has no religion, there would be a great chance of getting convicted on the ground of renouncing Islam and committing apostasy.7

   23. There is a large body of country information addressing penalties issued and carried out for consumption of alcohol in Iran. For instance: Iranian courts impose flogging sentences for consuming alcohol; A man was flogged 80 lashes in public for drinking alcohol in Iran; The Supreme Court affirmed the death sentences against two people convicted of drinking alcohol for the third time.8

   24. The applicant contended that he swore against the regime, the Supreme Leader and Islam in the course of dispute with Basij. Although the act of swearing might have occurred under the influence of alcohol, nevertheless, the authorities would consider it as ‘Sabb‐e Nabi’ (swearing at the Prophet) which is a serious offence in Iran and capital punishments are designated for it according to the Sharia Law.

   25. The applicant stated that his experience at the time of his military service with the Sepah (Revolutionary Guard) makes his situation even worse. He has a history of protest and disobeying the order on political ground. He had already demonstrated to the authorities that he was against the Islamic regime by his conduct at the military service. Therefore, the incident with Basij has left no doubt for the authorities that he is a person with anti-Islamic and ant‐regime [sic] views. As a result, not only he would be convicted for consumption of alcohol in Ramadan, but also he would be sentenced for swearing at Islam and the regime (Sabb‐e Nabi) and being an opponent of the regime. He would be convicted as a person who holds anti-Islamic and anti‐regime sentiments.

   26. The applicant was summoned several times to appear before the court shortly after he fled Iran. This indicates that the authorities have already targeted the applicant. This implies that he has an open file before the judicial system in relation to his conducts and his life will be at risk if return to Iran. The authorities will know that he sought asylum from Australia. Subsequently, considering his past issues with the authorities, he will be accused as a traitor. He will be interrogated and persecuted.

   27. As discussed above, it is asserted that enforcement of the Sharia Law would constitute persecution for the purpose of the Convention since the Law would be applied systematically and in a discriminatory manner to the applicant. If the applicant returns to Iran, he will not be convicted merely for breaching the Islamic Law. Considering his history, he will be labeled [sic] as a person against the regime and Islam and will be punished accordingly. In addition, the Islamic Law in regards to drinking alcohol for Muslims and Swearing at Islam and regime are disproportionately severe.

   6 PV interview audio record, 1.57’.30”

   7 Ibid, 1.55’.00”

   8 Flogging sentences used to repress free expression, Amnesty International, 11 October 2011; Iranian whipped In public for drinking alcohol, Reuters, 22 December 2010; Iranian youth publicly whipped for drinking alcohol, Ynet News, 22 May 2012;

1. The applicant argued that the Authority failed to take into account the submission that the checkpoint where the applicant had an altercation with the Basij was not a known checkpoint.  However, as discussed above, the Authority decided the case on a basis that made irrelevant the issue of whether the checkpoint was well-known or was a stop and inspection trap.  Therefore, the Authority did not need to address those submissions.

2. The applicant also argued that the Authority failed to take into account the submissions about the summonses.  The Authority did not accept that the summonses were for the reasons that the applicant claimed, in circumstances where the summonses did not state the matter to which they related.  Therefore, the Authority was not required to deal with those submissions further.  

3. The other matters raised in paragraphs 20 to 27 of the applicant’s submissions to the Authority concern what would happen to a person who was brought before an Iranian judge where the judge knew that the person had consumed alcohol, did not believe in Islam, had sworn against Islam and the regime and had disobeyed orders during his military service.

4. The Authority dealt with these submissions by not accepting the factual substratum.  That is, the Authority did not accept that the applicant had been involved in an altercation with the Basij (when he claimed that he was drunk and had sworn about Islam and the regime) or that he had disobeyed orders during his military service (with the result that he was detained for three days and tortured).  Therefore, the Authority was not required to deal with those submissions further.

5. Ground 6 is not made out.

Ground 7

1. The seventh ground of review in the application is:

   Further or in the alternative, the Authority failed to take into account a relevant consideration namely the applicant’s submissions addressing the Delegate’s finding about the altercation with the Basij claim and the summons should the applicant be returned to Iran.

   Particulars

   (a)The applicant refers to and repeats the particulars in ground 6 hereof.

2. For the reasons discussed in relation to ground 6, this ground is not made out.

Ground 8

1. The eighth ground of review in the application is:

   Further or in the alternative, the Authority was obliged, but failed, to review the Delegate’s finding that the applicant and his friends drank alcohol during Ramadan in July 2012 and thereby failed in its statutory task to ‘review the decision’.

   Particulars

   (a)The Delegate found that it was ‘plausible’ that the applicant ‘and his friends would have had a drink at the start of a weekend and the month of Ramadan would not have been a deterrent’ [CB173.3].

2. The Authority’s obligation to review the decision arises from s.473CC of the Act, which provides that:

   (1)  The Immigration Assessment Authority must review a fast track reviewable decision referred to the Authority under section 473CA.

   (2)  The Immigration Assessment Authority may: 

   (a)  affirm the fast track reviewable decision; or 

(b) remit the decision for reconsideration in accordance with such directions or recommendations of the Authority as are permitted by regulation.

1. In support of this ground, the applicant relied on BMB16 v Minister for Immigration and Border Protection (2017) 253 FCR 448; [2017] FCAFC 169 at [87] where Charlesworth J said:

   The Authority’s obligation to “review the decision” is, in that sense, an obligation to review the particular findings upon which the refusal decision was based: namely, whether the referred applicant satisfies the particular criteria which the Minister considered to be determinative. The Authority otherwise has no power to determine that the correct and preferable decision is one granting the referred applicant a visa. Accordingly, the Authority cannot perform a “full merits review” of the s 65 decision.

2. The applicant argued that passage meant that the Authority had to expressly review the delegate’s finding that the applicant had drunk alcohol with friends and had become intoxicated during Ramadan in July 2012.

3. The Minister noted that Charlesworth J in BMB16 at [88] continued after the paragraph set out above as follows:

   However, it does not follow that in the performance of its review function, the Authority may not depart from findings of fact made by the Minister that bear upon the question of whether the particular criterion under consideration is met without first identifying an error affecting the Minister’s findings. There is nothing in the text, context or purpose of the provisions at issue to support that construction.

4. The Minister also noted that Besanko J in BMB16 said at [38]:

   The force of these matters may be acknowledged and they make heavy inroads to any assimilation of the review in Part 7AA with the reviews in Parts 5 and 7. Nevertheless, for the reasons I have identified (at [36]), and without necessarily putting the matter in terms of a presumption as distinct from a strong contextual consideration, I am of the opinion that the word “review” has the same core meaning in Part 7AA as it has in Parts 5 and 7. In other words, subject to the express limitations and restrictions identified in Part 7AA, a review under that Part involves a fresh consideration by the Authority of the decision with power to make such findings as it considers appropriate.

5. The Minister emphasised that the Authority was required to review the delegate’s decision, as opposed to the delegate’s reasons for decision, and the particular findings made by the delegate.

6. In BMB16, Dowsett J expressed a somewhat different view at [16], where his Honour said:

   On the other hand, the review cannot be entirely at large. It is limited to a consideration of matters relevant to the available permissible directions or recommendations, pursuant to reg 4.43(2) and reg 4.43(4), but limited by reg 4.43(3). Given that s 473CC plainly contemplates that the extent of the review will be limited by regulation, there can be no justification for assuming that the review is to be of the same nature as reviews prescribed by other provisions of the Migration Act. Nor is there any basis for reading down the ambit of review so as to exclude the rejection of findings of fact or the adoption of a different approach from that adopted by the delegate.

7. It seems to me that the reasoning of Dowsett J is the most helpful for the resolution of this case.  That is, the Authority is not confined to the findings made by the delegate and is not confined to the reasoning process followed by the delegate.

8. That is consistent with Plaintiff M174/2016, where the High Court, in three separate judgments, agreed that a review by the Authority is a hearing de novo.  That is, the Authority is required to consider the application afresh and decide for itself whether the visa criteria have been met. 

9. There was no suggestion in Plaintiff M174 that the Authority must review individual findings made by the delegate.  That would be a novel requirement for an administrative review body that is required to decide matters afresh.

10. I am not persuaded that the Authority was obliged to review, in the sense of deciding whether it accepted or rejected, the delegate’s finding that that the applicant had drunk alcohol with friends and had become intoxicated during Ramadan in July 2012.  That is because the applicant’s claim was not that he was at risk because he drank alcohol on that occasion, or any other occasion.  The applicant’s claim was that he was at risk because, while intoxicated, he swore about Islam and the Ayatollah in front of the Basij.  Because the Authority did not accept, for reasons that it stated, that the applicant swore about Islam and the Ayatollah in front of the Basij, it was unnecessary for the Authority to expressly state whether it accepted that the applicant was intoxicated in July 2012.

11. This ground is not made out.

Ground 9

1. The ninth ground of review in the application is:

   Further or in the alternative, the Authority failed to consider the claim that the applicant drank alcohol with his friends during Ramadan and thereby failed to perform its statutory task to ‘review the decision’.

   Particulars

   (a)The applicant refers to and repeats the particulars in ground 8 hereof.

2. For the reasons expressed in relation to ground 8, this ground is not made out.

Conclusion

1. As none of the applicant’s grounds has been made out, the application will be dismissed with costs.

I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of Judge Riley

Date:  13 July 2018