DZC16 v Minister for Immigration
[2020] FCCA 129
•29 January 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DZC16 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 129 |
| Catchwords: MIGRATION – Application for review of decision of the Immigration Assessment Authority (IAA) – whether the IAA miscarried its review functions under s.473CC of the Migration Act 1958 (Cth) (the Act) by reason of errors in translation – whether the IAA acted unreasonably in failing to consider whether to exercise its discretion pursuant to s.473DC of the Act to invite the applicant to give evidence or arguments regarding certain claims – grounds not made out – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5AAA, 360, 425, 476, 473CC, 473DC |
| Cases cited: CQR17 v Minister for Immigration and Border Protection [2019] FCAFC 61 DVO16 v Minister for Immigration & Border Protection [2019] FCAFC 157 SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189; (2007) 81 ALJR 1401; (2007) 237 ALR 64; (2007) 96 ALD 510 DPI17 v Minister for Home Affairs [2019] FCAFC 43; (2019) 366 ALR 665 |
| Applicant: | DZC16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 3634 of 2016 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 21 November 2019 |
| Date of Last Submission: | 21 November 2019 |
| Delivered at: | Sydney |
| Delivered on: | 29 January 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr R. Chia (by direct access) |
| Counsel for the Respondents: | Mr H.P.T. Bevan |
| Solicitors for the Respondents: | HWL Ebsworth Lawyers |
ORDERS
The name of the first respondent is amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The application made on 20 December 2016 and as amended is dismissed.
The applicant pay the first respondent’s costs set in the amount of $7206.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3634 of 2016
| DZC16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 20 December 2016 and amended on 21 November 2019, seeking review of the decision of the Immigration Assessment Authority (“the IAA”), which on 6 December 2016 affirmed the decision of the Minister’s delegate not to grant the applicant a protection visa.
The evidence before the Court is contained in:
1 The Court Book – “CB” – “AE1”.
2 The affidavit of Ahmad Akbari, a “NAATI accredited Level 3 professional translator and interpreter in the Persian and English languages and director of Multinfo Pty Ltd, a provider of multi-lingual information consultancy services” (at [1] of his affidavit), made on 18 April 2017, with annexures.
Background
The applicant arrived in Australia in September 2012 (CB 38). He applied for a protection visa on 11 January 2016 (CB 18 – CB 93). He was assisted by a registered migration agent (CB 7 and CB 56). His claims to fear harm were initially set out in a Statutory Declaration made on 31 December 2015, which accompanied his protection visa application (CB 59 – CB 66).
The applicant claimed to be an Iranian citizen. He feared that if he were to return to Iran he would be “seriously harmed or killed” by the Basij (a religious paramilitary group in Iran). (See [4] at CB 59).
His family were strong supporters of the government and the Basij. The applicant was a member of the Basij. In July 2012 he received two letters from the Basij making certain allegations against him. He realised that there was a “plot” to get him into trouble with the Basij. He was expected to report to the Basij headquarters. He did not do so. He fled from Iran.
The delegate interviewed the applicant on 26 April 2016 (CB 124.9). The delegate refused the grant of the visa on 24 August 2016 (CB 118 – CB 140).
The applicant’s case was referred to the IAA on 26 August 2016 (CB 304 – CB 305, and CB 304 – CB 315 generally). The IAA affirmed the decision not to grant the applicant a protection visa on 6 December 2016 (CB 345 – CB 358).
The Grounds of the Application
In his written submissions the applicant set out in some detail the relevant background to his claims to protection, an outline of the delegate’s decision, and the reasoning and findings of the IAA (at [5] – [23]). This provides a helpful understanding of the context of his grounds (although for the reasoning of the IAA, see further below):
“5. The applicant arrived in Australia on 15 September 2012 as an "unauthorised maritime arrival".
6. On 8 October 2012, the applicant attended an interview with the department, referred to as the “arrival interview”, and on 3 December 2012 he attended a further interview referred to as the "entry interview".
7. On or about 11 January 2016, the applicant applied for a Temporary Protection visa, presumably pursuant to Ministerial determination made under section 46A(2) of the Act.
8. In his statement dated 31 December 2015,1 the applicant said that his family were staunch supporters of the government and the Islamic republic, that his father served in the Sepah and his three maternal uncles served in the Basij. The applicant said that in 2001 he joined the Basij as a volunteer, and then progressed to being a regular member and, in 2004, an “active” member, which included being trained in handling weapons as well as undergoing “ideological and political training”. His role with the Basij involved promoting and enforcing acceptable Islamic standards in society consistent with the principle of Velayat-e faqih.
9. The applicant continued to say that he was disturbed by the brutal treatment of protesters by the Basij during the 2009 presidential election protests, and thereafter he noticed the attitude within the Basij changed, that they acted like they were above the law. He saw Basiji taking a young woman to the basement in their base late at night and drivers being bashed and having contraband planted in their cars and other abuses of power.
10. The applicant said that at the end of 2011 he decided to intervene in the bashing of an intoxicated man at his Basij base and told his colleagues that the proper procedures needed to be followed. However his colleagues did not take kindly to the intervention, which was seen as a challenge to authority. The applicant said he received a letter dated (a date in the Persian calendar equivalent to) 5 July 2012 from the commander of his Basij base alleging that he had received reports of his lack of interest in co-operating with the Basij and failed to do certain things (First Letter). The letter also threatened expulsion from the Basij.
11. The applicant said that he received a second letter about a week later with date equivalent to 13 July 2012 (Second Letter) confirming his realisation that there was a plot to get him into trouble with the Basij. The letter ordered him to immediately attend at a certain Basij base to explain his conduct.
12. The applicant was told by his friend that he was in big trouble and that other members who had received similar letters had disappeared. The applicant did not report to the Basij headquarters as required but instead fled from Iran.
13. The applicant said that if returned to Iran, he feared being harmed or possibly killed by the Basij, the Sepah or the Iranian government.
14. The supporting documentation lodged with the applicant's visa application included copies of the First and Second Letters.2
15. On 26 April 2016, the applicant attended an interview department, referred to as the “protection visa interview”.
16. On 24 August 2016, the delegate found that the applicant did not meet the criteria set out in section 36 of the Act and refused his application for a Temporary Protection visa.3
17. The delegate accepted the validity of the applicant's visa application, accepted the applicant's claimed identity and accepted that Iran as the receiving country for the purposes of her assessment. The delegate also accepted that the applicant had joined the Basij and progressed to become an “active” member, accepted he had witnessed the brutality and abuses claimed in his statement and accepted the authenticity of the First and Second letters produced to the department.4 However the delegate concluded that the two letters were only “asking him to show cause”, “only threatened him with expulsion” and only related to a “minor disciplinary infringement”. The delegate concluded that the applicant would not face adverse attention from the Iranian authorities.
The Authority below
18. A determination was made that the applicant is a “fast track applicant”, and the decision of the delegate a “fast track reviewable decision”;5 and on 26 August 2016 the decision was referred to the Authority for review under Part 7AA of the Act.
19. On 14 September 2016, the applicant's representative provided written submissions to the Authority.6
20. On 6 December 2016, the Authority affirmed the delegate's decision not to grant the applicant a protection visa.7
21. Under the heading “Information before the IAA”, the Authority referred to the applicant's 14 September 2016 submissions and noted that they cited and attached “four pieces of country information” which it considered to be “new information”. The Authority referred to section 473DD of the Act, and concluded at [4] that the country information was not “credible personal information”, was not information that could not have been provided to the delegate and that it was not satisfied there were exceptional circumstances justifying consideration of those reports.
22. Under the heading “Applicant's claims for protection”, the Authority accepted that the applicant had been a member of the Basij at [10], that he spoken up in 2011 and was “picked on” at [11] and received the two warning letters at [12]. However the Authority did not accept that there was a plot against him or any intention to harm him:
…Firstly, the documentary evidence the applicant submitted with the TPV application suggests that he continued to retain the trust of the Basij at least up until June 2012. The documents evidence that in May 2011 he was commissioned as the director of Physical Education. While this was prior to his alleged dispute in late 2011, the appointment was for a year and he does not claim he was decommissioned during that period. In February 2012, after the dispute, he received a further written commission to partake in stop and search operations, including authorisation to carry a firearm. In June 2012, only weeks prior to the disciplinary letters, the Basij was willing to issue him a letter certifying that he was active with the organisation. Although I accept that the applicant had voiced his views against the actions of Basij members, the documents suggest to me that the applicant was not viewed with suspicion or believed to be against the Basij, and that the letters were the result of his non-attendance at scheduled duties.
Secondly, the letters themselves do not suggest any threat of harm. The first letter threatens that the applicant will be sacked if he continues his lack of interest in cooperating, refusal to take part in street inspections and to attend mosque. On his own evidence, the applicant did not respond to this letter. The second letter, a week later, requests him to report regarding his absence from patrols. The applicant claims that his friend who worked for the Basij told him that he was in big trouble and that other persons who received such letters disappeared, and that upon hearing this he remembered certain persons who he had not seen for some time. While I accept that may be the case, I am not satisfied those persons came to some harm. It is unremarkable that persons who received disciplinary letters would no longer be present at the Basij base or participate in Basij activities, particularly given that, as demonstrated by the first letter received by the applicant, a potential consequence was sacking from the Basij. The applicant's claim that such persons 'disappeared' appears speculative.
23. The Authority concluded at [15] that the applicant had been threatened with sacking and requested to attend the Basij headquarters but that he had not been perceived to be against or otherwise perceived to be against the regime or that there was any intention to harm him. The Authority held that the only consequence of the applicant's non-compliance with the Second Letter was that he was sacked.”
[Errors in the Original.]
[Footnotes Omitted.]
The grounds of the application to the Court, as amended, are as follows:
“1. The exercise of the second respondent's review function under section 473CC of the Migration Act 1958 ("Act") miscarried by reason of error or errors in translation.
3. Further or in the alternative, the second respondent's failure to consider exercising its discretion to, or the exercise of the second respondent's discretion under section 473DC(3) of the Act not to, invite the applicant to give evidence or present arguments on the issue of whether he had been "sacked" from the Basij and/or whether that was the full extent the adverse interest from the Basij or the Iranian authorities was legally unreasonable.”
Ground One: The Applicant’s Argument
Ground one asserts that the IAA’s review function under s.473CC of the Act miscarried by reason of errors in translation.
For the purposes of ground one the following is relevant. As set out above, the applicant claimed to have initially been a member, and then in 2004 an active member, of the Basij.
During the 2009 presidential elections, as a member of the Basij, he claimed to have witnessed: “…many horrific things that the Basiji officers committed…” ([48] at CB 63).
In 2011 the applicant claimed to have spoken out against colleagues who were beating an intoxicated man ([53] – [55] at CB 63). He claimed that they saw this as a challenge to their authority ([57] at CB 64).
He claimed to have then received two letters. The first letter is reproduced at CB 91. It is not written in the English language. A translation appears at CB 90 which was submitted to the delegate by the applicant:
“Emblem of Islamic Republic of Iran
Emblem of Basij Defence Forces
Date: 5 July 2012
Number: 9126Warning Letter
From: Yomelghadir Defence Military Base
To: [the applicant]Greetings:
In light of the received reports regarding your lack of
Interest in cooperating with basij * and refusal to take
Part in street inspections as well as refusal to attend
Mosque, we hereby warn you that should this continue
You will be sacked from Basij.Signed by Commander of Yomelghadr Defence Military
Base: Khodabakhsi*Basij = Militia Security forces in Iran
Translator's Remarks: Dates converted from the Persian calendar”
The second letter is reproduced at CB 93. It also is not written in the English language. What is said to be a translation of it is reproduced at CB 92 and was also given to the delegate by the applicant:
“Emblem of Islamic Republic of Iran
Emblem of Basij* Defence Forces
Date: 13 July 2012
Number: B/32/4/6537
Classification: ConfidentialWarning Letter
From: Habib Ibn Mazaher Basij Defence Forces
To: [the applicant]
You are requested to report to headquarters immediately upon receipt of this letter
Regarding your absence from stop and search operations and security patrols.Signed by Commander of Habib Ibn Mazaher Basij Defence forces
*Basij = Militia Security forces in Iran
Translator's Remarks: Dates converted from the Persian calendar”
In making his application for the visa, the applicant was represented by a registered migration agent (CB 7 and CB 56). Both letters and what are said to be translations done by a “Persian translator” into English were provided by the applicant with his protection visa application (see items 16 and 17 at CB 17).
The applicant submitted before the Court that the delegate considered both of these letters (the translations) and accepted them at face value.
The delegate relevantly found (at CB 128.8 – 129.2):
“Earlier I examined the original documents the applicant provided and did not find any evidence of irregularity. I therefore accepted them for what they purported to be. In the course of the PV interview I found the applicant to be generally credible as discussed above. In relation to the above mentioned letters he claimed to have received from the Basij, and which underpinned his reason for leaving Iran, I measured whether these letters are genuine or fake. As someone with a long association with the Basij it would not be implausible for the applicant to have the means of acquiring letterheads, stamps and write out a letter to suit his purpose. However, considering his overall credibility, I am willing to accept that the letters the applicant claimed he received from the Basij above are legitimate and will consider them on that assumption.
In summary:
· I accept that the applicant was born as a Shia Muslim but is currently not a practising Muslim.
· I accept he was exempted from compulsory military service.
· I accept he joined the Basij as a volunteer from a young age and became an active member.
· I accept he has witnessed or been involved in a range of experiences (as listed in his statement of claims) through his involvement with the Basij.
· I accept he received two letters in July 2012 from the Basij asking him to appear and show cause.”
The focus of the applicant’s ground before the Court is to be found at [13] and [14] of the IAA’s reasoning (at CB 350):
“13. However, I am not satisfied that the letters indicated any intention to harm the applicant, or that he was perceived as being against the Basij or velayat a faqih. Firstly, the documentary evidence the applicant submitted with the TPV application suggests that he continued to retain the trust of the Basij at least up until June 2012. The documents evidence that in May 2011 he was commissioned as the director of Physical Education. While this was prior to his alleged dispute in late 2011, the appointment was for a year and he does not claim he was decommissioned during that period. In February 2012, after the dispute, he received a further written commission to partake in stop and search operations, including authorisation to carry a firearm. In June 2012, only weeks prior to the disciplinary letters, the Basij was willing to issue him a letter certifying that he was active with the organisation. Although I accept that the applicant had voiced his views against the actions of Basij members, the documents suggest to me that the applicant was not viewed with suspicion or believed to be against the Basij, and that the letters were the result of his non-attendance at scheduled duties.
14. Secondly, the letters themselves do not suggest any threat of harm. The first letter threatens that the applicant will be sacked if he continues his lack of interest in cooperating, refusal to take part in street inspections and to attend mosque. On his own evidence, the applicant did not respond to this letter. The second letter, a week later, requests him to report regarding his absence from patrols. The applicant claims that his friend who worked for the Basij told him that he was in big trouble and that other persons who received such letters disappeared, and that upon hearing this he remembered certain persons who he had not seen for some time. While I accept that may be the case, I am not satisfied those persons came to some harm. It is unremarkable that persons who received disciplinary letters would no longer be present at the Basij base or participate in Basij activities, particularly given that, as demonstrated by the first letter received by the applicant, a potential consequence was sacking from the Basij. The applicant’s claim that such persons ‘disappeared’ appears speculative.”
The evidence of Mr Akbari is that the letter of 13 July 2012 (that is, the second letter) when compared to the translation (in context, the translation given to the delegate), reveals that there is a “paragraph” in the original which has been “omitted from the translation”.
The “omitted” text is said to be at the point commensurate with the end of the English text (CB 92). The “omitted paragraph” is said to be in the following terms (at [4] of Mr Akbari’s affidavit):
“It should be noted that, if you do not attend, necessary action will be taken.”
The applicant’s assertion of legal error is that the statutory process of the review before the IAA was subverted because of this error in translation.
The applicant relied on CQR17 v Minister for Immigration and Border Protection [2019] FCAFC 61 for the proposition that the process of review before the IAA can miscarry even though the error was not made by the IAA itself (see further below).
The applicant also sought to rely on DVO16 v Minister for Immigration & Border Protection [2019] FCAFC 157 (“DVO16”). The applicant referred to two of the arguments put by the applicant in that case. One, (ground one) the IAA had notice of interpretation errors at the interview with the delegate. The argument was that it was legally unreasonable of the IAA not to have invited “new information” from the applicant in the circumstances.
Two, (ground three in that case) on the basis of the evidence before the Court, there were identifiable errors in interpretation which had the consequence that the IAA had not conducted, properly, a review under Part 7AA of the Act.
It was in relation to this latter point that the applicant sought to draw sustenance for his argument before the Court in the current case.
The applicant argued that the issue raised in this ground was addressed by Stewart J in DVO16, and with which, on this point, the plurality in that case agreed.
In this light, the applicant directed attention to [82] and [83] of the judgment by Stewart J, but in particular to focus on the extract quoted there from [51] of SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 (“SZFDE”):
“51. No doubt Mr Hussain was fraudulent in his dealings with the appellants. But the concomitant was the stultification of the operation of the critically important natural justice provisions made by Div 4 of Pt 7 of the Act. In short, while the Tribunal undoubtedly acted on an assumption of regularity, in truth, by reason of the fraud of Mr Hussain, it was disabled from the due discharge of its imperative statutory functions with respect to the conduct of the review. That state of affairs merits the description of the practice of fraud "on" the Tribunal.”
The applicant’s argument before the Court, therefore, is that based on the evidence of Mr Akbari, there was an error in translation of what was in the “second” letter. As a result the IAA, even though the error was not of its own making, was deficient in the discharge of its relevant statutory function.
It ultimately became clear that in the current case the applicant was not asserting that the error in translation, to respectfully paraphrase SZFDE at [51], merits the description of “fraud” on the IAA.
Rather, the applicant sought to rely on what Stewart J said in DVO16 at [86]:
“86. Do the errors in interpretation in the present case infect the decision-making process to the extent required to conclude that the Authority “was disabled from the due discharge of its imperative statutory functions with respect to the conduct of the review” or otherwise to bring the case within the principle in SZFDE? There was no “fraud” in this case to “unravel everything”. So, do the interpreting errors, rather, have the quality of merely “some other mishap” as referred to in paragraph [53] of SZFDE?”
[Emphasis Added.]
Paragraph 53 of SZFDE is in the following terms:
“53. The significance of the outcome in this appeal should not be misunderstood. The appeal has turned upon the particular importance of the provisions of Div 4 of Pt 7 of the Act for the conduct by the Tribunal of reviews and the place therein of the ss 425 and 426A. In the Full Court French J correctly emphasised that there are sound reasons of policy why a person whose conduct before an administrative tribunal has been affected, to the detriment of that person, by bad or negligent advice or some other mishap should not be heard to complain that the detriment vitiates the decision made66. The outcome in the present appeal stands apart from and above such considerations.”
[Footnote Omitted.]
In that light, therefore, the applicant’s argument was as follows. The letter was central to, and underpinned, the applicant’s claims to fear harm. This distinguishes the current case from the circumstances in DVO16 where the applicant’s appeal was ultimately dismissed.
The error in translation, the mistranslation, therefore, was so important to the outcome of the review, that the exercise of the IAA’s statutory function miscarried. That is, the mistranslation was a “mishap” that led the IAA to fail to validly discharge its statutory function.
In the current case, when asked to relevantly explain, the applicant submitted that the circumstances in SZFDE were different to the current circumstances. That is, the applicants in that case were denied the opportunity to appear before the relevant review body and present their case. That is, in the words of the applicant’s counsel now, “SZFDE related to fraud”.
The applicant, however, sought to draw on what was described as the analogy drawn by the applicant in DVO16, which he submits was accepted by the Court in that case, that what has occurred has resulted in a complete failure by the IAA to discharge its statutory function.
Ground One: Consideration
There was some dispute between the parties as to the exact description of the matter raised by Mr Akbari’s evidence. The applicant sought to describe it as a “mistranslation” or a “mistake”. The Minister described it as an “omission” of one sentence of the version of the letter in the original language from the translated version.
While the matter is not of itself dispositive, I agree with the Minister’s description, particularly given that it derives from Mr Akbari’s evidence (“the omitted paragraph” – his affidavit at [4]).
As did the applicant, the Minister also made detailed and comprehensive submissions in this matter. For the reasons set out below, I agree with the Minister that the assertion of legal error in the applicant’s ground is not made out.
First, while the applicant’s ground is focused on the statutory context, he did not satisfactorily explain the extent of one part of the relevant statutory context and its application to the circumstances of this case.
What is often overlooked in matters of this type involving protection visa applications are the responsibilities of the applicant. Generally, the focus in such matters before the Court is on the obligations and responsibilities of the IAA or the Administrative Appeals Tribunal (“the AAT”).
While general observations are sometimes made that it is up to an applicant to put sufficient material before the decision maker to satisfy the decision maker that the case is made out, it is sometimes forgotten that this has a statutory basis.
Section 5AAA of the Act was at the relevant time in the following terms:
SECT 5AAA – Non-citizen's responsibility in relation to protection claims
(1) This section applies in relation to a non-citizen who claims to be a person in respect of whom Australia has protection obligations (however arising).
(2) For the purposes of this Act, it is the responsibility of the non-citizen to specify all particulars of his or her claim to be such a person and to provide sufficient evidence to establish the claim.
(3) The purposes of this Act include:
(a) the purposes of a regulation or other instrument under this Act; and
(b) the purposes of any administrative process that occurs in relation to:
(i) this Act; or
(ii) a regulation or instrument under this Act.
(4) To remove doubt, the Minister does not have any responsibility or obligation to:
(a) specify, or assist in specifying, any particulars of the non-citizen's claim; or
(b) establish, or assist in establishing, the claim.
[Emphasis Added.]
Plainly, of itself, this point is not determinative of the applicant’s ground. But it provides context to consider the circumstances of this case.
This is not a case where it can be said, nor is it alleged, that fraud by a third party on the IAA has stultified the exercise of the power given by the statutory provisions.
It must not be forgotten that the omission in translation was not provided to the delegate, and ultimately the IAA, by a third party. The applicant himself, who was at the relevant times represented by a registered migration agent, gave the translated document, which omitted the sentence that Mr Akbari now tells us was omitted.
The translated document was not commissioned or called for by the delegate or the IAA. It was voluntarily given by the applicant in support of his claims to fear harm.
Second, as set out above, central to the applicant’s claimed fear of return to Iran was that he would be harmed by the Basij because of the Basij’s perception of his political opinion.
The applicant’s own Statutory Declaration makes clear that: “In July 2012, I received two letters from the Basij which changed my whole life” ([61] at CB 64). One of those letters, and the translated copy which he provided to the delegate, sits at the heart of the allegation of error in ground one.
In his application for the visa the applicant set out what he said was the basis for his claim to fear harm in the context of the two letters (at CB 14, heading [4.2]):
“4.2. The feared harm claimed by the applicant is significant harm.
Reasons for fearing Significant harm
• There were untrue reports against the applicant in Iran accusing him of not being interested in cooperating with the Basij. This is a serious allegation as it could lead to charges of opposing Velayat e Faqih, or of being a corrupter of the earth. If Convicted on charges such as these the applicant faces severe threats to his life and liberty.
• The applicant knows of other former Basij members who had suffered harm because, like him, they were accused of not co-operating with the Basij
• The Iranian government's interpretation of sharia provides that Shia Muslims are not permitted to oppose Velayat e Faqih.
The applicant claims that these charges and allegations against him could cause him significant harm. He fears torture, cruel, inhuman or degrading treatment from the Basij. He also fears that if returned to Iran he will be arbitrarily arrested and deprived of his liberty.”
Central, therefore, to the applicant’s claimed fear, and what he said sat behind the letters from the Basij, was that there was a “plot” against him. The applicant made clear in his Statutory Declaration (at [6], CB 59):
“6. One of these letters was from the commander of the Basij base which I normally reported to. The contents of this letter alleged that the Basij had received reports of my lack of interest in co-operating with the Basij, and that I had failed to do certain things. The letter also threatened expulsion from the Basij. The allegations in the letter against me were untrue. I realised that there was a plot to get me into trouble.”
[Emphasis Added.]
In relation to the letter to which the impugned translation relates, the applicant stated ([7] – [8] at CB 59):
“7. The other letter, from the Basij headquarters, which I received about a week after the first letter, ordered me to report immediately at a certain Basij base to explain my conduct.
8. This letter confirmed my realization that there was a plot to get me into trouble with the Basij.”
Bearing in mind the statutory context (s.5AAA of the Act), the letter, and the translated version, were provided by the applicant himself, with representation, to assist in, or in establishing, his claim to fear harm.
Third, in that context, therefore, it is important to note the exact details of the claim, and the effect, if any, of the translated version of the letter on those claims.
As set out above, the applicant in his own words set out what he said was in the letter (see [7] at CB 59 – and see also [52] above). There is nothing in the applicant’s account that gives any indication of an omission as now revealed by Mr Akbari’s evidence.
It is the case that there is no evidence that at the relevant time the applicant could read, speak, or write, in English, and therefore could personally know that the omitted sentence was not in the translated version.
However, it is what the applicant thought was in the letter that is important. If the applicant was not conversant in English then the omission in the translated version would not be apparent to him. Therefore, what is set out in his Statutory Declaration, relevantly, at [7], must have been his understanding of what was in the original letter written in Farsi (Persian), which, on the evidence, he could read, speak, and write. (See also in this regard item 29 at CB 33).
The omission in his own account of what Mr Akbari now says the letter states (in Farsi), leads to the reasonable conclusion that that omission did not contain the ominous note which the applicant’s counsel now urges on this Court.
In short, the applicant was not conversant in English. His declaration as to what the letter says must therefore, in the absence of any other evidence, have been derived from the original letter written in Farsi. A letter which he said he received in July 2012 in Iran. That is, a letter given to him personally and which caused him to flee Iran.
In his Statutory Declaration of 31 December 2015 which accompanied his application for the visa, the applicant made specific reference to what was the content of these letters which he said he received in July 2012 ([61] – [64] at CB 64).
Although it is trite to say so, the applicant’s ground requires that it be said, the letters the applicant said he received were in the Farsi language. They were not the translated English version which he subsequently included with his visa application.
In his Statutory Declaration the applicant, who again it must be emphasised is a native Farsi (Persian) speaker, set out what was said to be written in those letters ([63] for the first letter, and [64] for the second, at CB 64).
It is to be remembered, and it is again trite to say so, that ultimately the IAA was required to consider the applicant’s claim to fear harm. The letters were provided to corroborate his central claim. That is, that he had come to the attention of his superiors in the Basij (he had a difference of opinion with other Basij members) and the two letters were the catalyst for his realisation that his situation was serious (“…changed my whole life” – [61] at CB 64).
This was further explained by the applicant in his Statutory Declaration (at [66] – [68], CB 64 to CB 65):
“66. What Farshad told me and the information conveyed in the letters made me believe that the Basij perceived me as having a difference of political opinion, and that they planned to harm me.
67. An allegation that I was not interested in co operating with Basij can be interpreted in Iran as opposition to Velayat e faqih, and consequently opposition to the Ayatollah. The Basij was created on the orders of the Ayatollah. Disinterest in co operating with the organization created on the orders of the of the Ayatollah means that one is rejecting the Ayatollah. Rejection of the Ayatollah or opposition to the Ayatollah is not acceptable in Iran, and it makes you an enemy of the state. Such an allegation against a person puts that person's life in danger. So, I understood that they wanted to harm me, and that my life was in danger.
68. I did not report to the Basij headquarters. I fled from Iran 24th of July 2012, before the Basij took any actions to arrest me.”
[Errors in the Original.]
The applicant was interviewed by the delegate. There is no transcript of that interview in evidence before the Court. The only account in evidence is to be found in the various references in the delegate’s decision record.
What the applicant told the delegate about relevant events in Iran and the background to it is summarised in the delegate’s decision record (at CB 124). There was no dispute from the applicant before the Court that this was not an accurate or fair summary of what he had said.
In relation to the two letters the delegate found as reproduced at [18] above.
The delegate’s assessment of the applicant’s evidence and his findings are reproduced at CB 127.9 – CB 128.3.
As set out above, the delegate made specific reference to the two letters and made specific findings about the letters. Of particular and relevant note is that the delegate accepted (at CB 129.2):
“…he received two letters in July 2012 from the Basij asking him to appear and show cause”.
Before the Court both parties took the Court to various parts of the delegate’s account of what was discussed at the interview in relation to the two letters.
Given the central role in the applicant’s claims concerning the two letters and what the applicant said about them, it is necessary to set out the delegate’s report of what was discussed in full (at CB 133.6 – CB 134.5):
“…I discussed the two letters that the applicant received from the Basij and which underpinned his departure from Iran to seek asylum. I put to him that the letters appeared to be of an administrative nature asking him to show cause for not performing his required duties and, considering that he was afforded the opportunity to respond, questioned how that was persecutory in nature. The applicant stated that the Basij were clever enough to couch their language in official terms and give the impression they were abiding by the law but in practise were out to persecute him. He stated he recalled a colleague in the past had disappeared under similar circumstances and feared the same would happen to him. Such fears were accentuated by a friend he had in the Basij who tipped him off.
I put to the applicant that I had difficulty in accepting that in being asked to explain himself against a charge that he was being persecuted by the Basij. I also put to him that if he had reneged on a job commitment that the organisation had him rostered on for them, they may well have had good reason to ask him for an explanation. Further, I also found it difficult to accept his claims of serious harm when the letters only threatened him with expulsion. I noted that he had already received the benefits of military service exemption and had a passport so there was less at risk. The Basij is a large organisation with a formal structure and therefore I consider it would have detailed administrative processes in place. I also put to him that he was not arbitrarily arrested or detained and therefore due process seemed to have been followed in them seeking his response.
The applicant responded that the manner in which the Basij set him up was to ensure that they gave the impression of doing things by the law so as not to draw untoward attention to them, and that was how they tended to operate.
The first letter from the Basij also alleged he had not been attending the mosque. I asked the applicant if he knew the source of this information him but he stated he did not know and I accept this as plausible. The applicant’s evidence at the PV interview indicates he had been a passive Muslim for long before the letters were issued to him in not being a regular mosque attendee. I considered whether that would draw the attention of the authorities to him and whether such attention is potentially harmful.
Country information indicates that many young Iranians have switched off religion altogether21 and a dwindling number regularly attend a mosque or perform their daily prayers.22 It also indicates that those not identifying or practising Islam do not suffer any consequences for their lack of faith. Non practising Muslims in Iran only attract attention if they convert away from Islam to another religion23 which was not the case with the applicant. Therefore, I am satisfied that while the Basij may have asked the question about his lack of mosque attendance, and it was coupled with a number of other things they were enquiring about e.g. him not showing up for rostered duty, country information cited above does not support his claim of persecution as a result, nor do I consider it plausible that he was consequently exposed to the risk of harm.
Earlier I considered the profile of the Basij which would indicate the extensive reach it had in Iranian society and that if anyone came to their adverse attention for being seen as opposed to the regime, it would be difficult to avoid arbitrary arrest and interrogation. The applicant is found to possess a low profile within the Basij and not otherwise politically active. There is therefore little reason for him to come to the adverse attention of the authorities upon return. It is quite possible that he may be questioned in the normal course upon return in the manner of most returnees which DFAT reported to be limited to an hour or two after which the vast majority of people are released.24 Though DFAT reports that those attracting the attention of the authorities could be detained for longer, the applicant is assessed as a person of low profile and not posing a political risk to the authorities and is therefore not considered to be at risk of harm upon return. I also do not consider it plausible that a minor disciplinary infringement on his part could remain alive after him being out of the country for over four years. I do not find the applicant to be of interest to the Basij.”
[Error in the Original.]
[Footnotes Omitted.]
In short, the applicant’s explanation concerning the letters was that the letters were a part of the scheme by the Basij to persecute him and that a colleague had “disappeared under similar circumstances” in the past. The applicant “feared the same would happen to him”.
The delegate noted this claim. The claim was at least commensurate to, in terms of the threat from the Basij, to that which Mr Akbari says was omitted from the translation of the second letter. The delegate understood, therefore, that the applicant’s claim was that the letters, in context, conveyed to the applicant that his physical safety, if not his life, was at risk.
However, in all the circumstances (including what is set out immediately above), the delegate found that the applicant had been derelict in some of his duties and that the letters were of an administrative nature in response to the applicant’s conduct.
For current purposes the following emerges. The applicant claimed to fear harm (including his physical safety and his life) if he were to return to Iran because his superiors in the Basij had set up a scheme, as evidenced by the letters, to take action against him.
The contents of the letters were discussed at the interview with the delegate. The delegate set out in the decision record the translated versions, including the impugned translation of the second letter.
Before the Court the applicant now focused on the English translation of, relevantly, the second letter. However before the delegate the applicant’s account generally, and specifically his account of what was in the letters, must have been referable to, and derived from, the letters in their original Farsi (Persian) language.
The evidence before the Court is that the applicant, at the relevant time, only spoke, read, and wrote Farsi (Persian), and spoke Azari (item 29 at CB 33). There is no evidence before the Court now that before the delegate the applicant spoke, or could read, English. Nor has the applicant now made any such claim.
Therefore, it is reasonable to say that when the applicant gave his answers to the delegate’s questions at the interview, when he gave his explanation as to his claims to fear harm, and the role of the letters in that fear, he must have done so with reference to the letters in their original form in Farsi (Persian), and not to the English translation, which he could not read.
On the evidence before the Court, while the delegate set out the English translations of the letters in his decision record, the delegate’s analysis was based (as set out above) on the applicant’s own evidence of what he said was in the letters, and their importance in being the catalyst for his leaving Iran. As set out above, this included that he feared that he would suffer the same fate as his colleague who had disappeared. The delegate’s analysis encompassed this aspect of the applicant’s claim.
Fourth, it is of course the IAA’s decision which is the focus of the current review, and not the delegate’s decision.
The applicant continued to be represented before the IAA by the same registered migration agent who assisted him before the delegate.
Before the IAA the applicant, through his migration agent, was given the opportunity to make submissions as to why he disagreed with the delegate’s decision (CB 307.7).
His migration agent made submissions on his behalf (CB 318 – CB 330, with annexures). The submissions addressed certain findings made by the delegate (CB 318.9 – CB 319.7). The submissions then addressed the delegate’s findings that the applicant: “…was not a refugee” (CB 319.7), and in relation to complementary protection (CB 320.2 – CB 322.4).
The submissions made specific reference to the two letters (at CB 320.1):
“It is the Applicant’s submission that it was reasonable for him to fear a real chance of serious harm following the receipt of the 2 letters in 2012, having regards to the knowledge gained from his experiences at the base over the 8 years as an active Basij member. His fear was well‐founded. There was a real substantial basis for his fear. It was not merely assumed or based on mere speculation.”
At best, this was a brief and general description of the applicant’s position before the delegate. There was no reference here to the delegate’s finding that the letters were of an administrative character.
In its decision record the IAA set out the applicant’s claims to fear harm as they were presented to it ([5] at CB 346 – CB 348). The IAA made specific reference to the two letters (CB 347.6). Importantly, it set out what the applicant told the delegate about the events leading up to his receipt of the letters, and about the letters themselves, and why he left Iran (CB 347.5 – CB 348.2). The applicant does not now assert that the IAA misunderstood or misrepresented what he told the delegate.
The IAA accepted that the applicant was engaged with the Basij as he had claimed, and accepted the credible fashion in which the applicant presented his claims ([9] – [11] at CB 348 to CB 349).
The IAA accepted that the applicant received the two letters in July 2012. However, it did not accept his claim (at [12], CB 349):
“…in the written statement that there was some plot against him based on false allegations, given that on his evidence at the TPV interview, the allegations in the letters that he was refusing to take part in Basij activities and follow orders were true”.
I agree with the Minister that for current purposes (and for that matter, in relation to both grounds), the following paragraphs [13] – [15] (CB 350) are critical to the IAA’s decision. Paragraphs 13 and 14 are reproduced at [19] above. Paragraph 15 is in the following terms:
“15. I accept that the applicant was threatened with sacking and requested to attend the Basij headquarters to explain himself. However, on the available material I am not satisfied that he was perceived to be against velayat a faqih, otherwise imputed with an anti-regime opinion, or that there was an intention to harm him. The applicant remained in Iran for a further 10 days following the second letter, and there is no evidence of his receiving any adverse attention during that time, or of there being any further interest in him following his departure. I have considered the submission to the IAA that the applicant’s fear was based on his knowledge of the Basij over his years of involvement with them, however on the material before me I am not satisfied that the result of the applicant’s non-response to the letters and continued lack of cooperation would have been anything other than his sacking from the Basij. Even if, as the applicant says, it is not possible to resign from the Basij (although I note this is contradicted by country information referring to former Basij members12), I find that as per the warning in the letter he received, he has been sacked. I am not satisfied that at the time of his departure the applicant was of adverse interest to the Basij or other Iranian authorities or that there is any ongoing interest in him in relation to his past voicing of his views about the Basij’s actions, his non-compliance with Basij orders, non-response to the letters, or his departure from the country following that non-response.”
[Footnote Omitted.]
The applicant’s ground asserts a miscarriage of the IAA’s exercise of its review function, by reason of the mistranslation. That is, the “missing” sentence in the translation as now identified by Mr Akbari. In short, that the omission of that part of the letter not translated, meant that the IAA did not properly conduct the review.
In submissions before the Court, this was explained as follows. The “untranslated” part of the second letter contained what appeared to be an escalated threat to the applicant, which appeared to be an escalation of the threat made to the applicant in the first letter. That is, a threat of harm not addressed by the IAA.
Because of the mistranslation, the applicant was denied a meaningful opportunity, as described, a “proper” opportunity, to present his case. The mistranslation, therefore, denied the IAA the opportunity to conduct the review as contemplated by the Act. That is, under Part 7AAA of the Act, and in particular s.473CC of the Act.
The applicant’s ground is not made out.
First, as set out above, the applicant’s explanation of the relevance of the letters to his claimed fear could not have arisen from the English translation, which in the second letter contained the mistranslation, or more precisely, the omission. It could only have arisen from his own reading in Farsi (Persian) of the original wording of the letters. There is no evidence that the applicant could speak, read, or write in English at the relevant time.
Second, on the evidence before the Court, the applicant was given a meaningful opportunity (a proper opportunity), both before the delegate and the IAA, to present his claims to fear harm. It is to be remembered that he provided the English translations of the two letters to the delegate and as they subsequently were referred to the IAA.
Importantly, there was no specific reference by the applicant either in his application for the visa, his statutory declaration, his evidence to the delegate, or in submissions to the IAA, to that part of the second letter that the evidence of Mr Akbari now says was not translated.
Given that the applicant read and spoke Farsi (Persian), the language in which the letters were written, his failure to specifically raise this part of the second letter with the delegate, and then when on notice by the delegate’s decision, with the IAA, remains unsatisfactorily explained before the Court.
Third, this argues against the applicant’s counsel’s submissions now that the untranslated sentence was an escalation of the threat to him by the Basij, as made in the first letter. That is, that he would be sacked from the Basij. If the untranslated part of the second letter (which would have been known to the applicant) was so dire, or ominous as he now argues, then it is reasonable to expect that he would have specifically raised it at some point, and in particular, in his written submissions to the IAA.
Fourth, in his submissions to the Court, the applicant argued that the escalation of the threat in the second letter “deliberately” left the details of the nature of the threat: “…to the applicant’s imagination”. (See applicant’s submissions at [31]). That is, the words “necessary action will be taken”. Noting, of course, that these are the words that were part of the untranslated sentence in the English version of the letter given to the delegate.
On the evidence before the Court, the applicant’s argument cannot be accepted as a basis for making out the applicant’s ground now. While the applicant’s counsel may seek to characterise the untranslated words as carrying an ominous threat, the applicant at the relevant times made no specific reference to it. Otherwise it would have been reasonable in all the circumstances set out above for him to have raised the existence of such an escalated threat with the delegate, or relevantly the IAA.
Fifth, nor has the applicant satisfactorily explained how the missing, untranslated words, in the circumstances presented, bear the ominous or dire character which his counsel now seeks to ascribe to them.
Sixth, and in any event as set out above, the applicant’s explanation for his claimed fear if he were to return to Iran, and as understood by the delegate and the IAA, was that the letters (including that part not translated) meant the likelihood of his also “disappearing”. The delegate’s consideration of this claim was referred to the IAA. This is what the IAA considered.
Seventh, the applicant does not now impugn the translation of the first letter which he gave to the delegate and which was before the IAA. That letter, in its English version, states simply that the applicant’s various conduct was not acceptable, and that if he continued in this way he would be sacked from the Basij.
That conduct included his lack of interest in cooperating with the Basij and his refusal to participate in some of their activities for which he had been nominated.
The English translation of the first part of the second letter is not now impugned by the applicant. It again makes clear that the Basij authorities were concerned with certain aspects of the applicant’s conduct. That is, his absence from the Basij activities of stop and search operations and street patrols. He was “requested” to report to the Basij headquarters. The untranslated part of the second letter stated that if he did not attend, as requested, “necessary action will be taken”.
In the circumstances presented, and in the absence of any evidence to the contrary, it is reasonable to view this as a reference to what had been earlier communicated to the applicant. That is, he would be sacked from the Basij.
The first letter put him on notice that his conduct was not acceptable and warned him that if it continued he would be sacked from the Basij. The second letter noted his continued failure to cooperate and asked him to attend Basij headquarters. He was put on notice by the letter given to him in the Farsi language that his failure to attend would lead to “necessary action”. In the circumstances this, when seen reasonably in context, referred to his being sacked if he did not attend. Such a failure would be seen as a continuation of his recalcitrant conduct.
Before the Court the applicant argued that if all that the second letter was referring to by the words “necessary action” was that he would be sacked, then there was no need for the second letter, given that that point had been made in the first letter.
On the plain wording of the translated version of the first letter (before the delegate and the IAA), what was put to the applicant was that if his conduct did not change, he would be sacked. Nothing further was put. The first letter was simply a warning given to the applicant.
The focus of the second letter was to request the applicant’s attendance at the Basij headquarters. That of itself provides a sufficient and separate basis for the sending of the second letter.
Eighth, before the Court the Minister relied on DVO16 to submit that the applicant’s argument fails for the same reasons as given by the Full Court in that case. That is, as set out in the joint judgment of Greenwood and Flick JJ, and in the judgment of Stewart J.
The factual background to DVO16 is particularly set out in the judgment of Stewart J. For current purposes, what is of note in DVO16 is that the applicant’s argument before the Court in that case was that there were errors in translation in an interview conducted by the delegate of the applicant in that case, which subsequently affected the exercise of its power by the IAA.
That is, the errors in translation led to misunderstandings which deprived the applicant of a fair opportunity to put his case for protection.
For current purposes, I note that an argument was raised by the applicant in DVO16 (ground three in that case) that, with reference to SZFDE, the errors in interpretation were such as to have led the IAA (in that case) not to have properly discharged its imperative statutory function.
That is not the argument raised by the applicant’s ground in this case. The assertion in ground one is a miscarriage of the IAA’s review function under s.473CC. This was explained in submissions as being that the applicant was denied a “real” opportunity to present his case before the delegate, and which denied the IAA the capacity to conduct the review as required by the Act.
At [91] of DVO16 Stewart J stated:
“91. The appellant does not assert a procedural fairness complaint with regard to the errors in interpretation. Such a complaint would fail because the errors would have to be material before they amounted to jurisdictional error, where a “breach is material if it operates to deny the applicant an opportunity to give evidence or make arguments to the Tribunal and thereby to deprive the applicant of the possibility of a successful outcome”: SZMTA at [2] per Bell, Gageler and Keane JJ. The applicant was not denied any opportunity to give evidence.”
So too in this case. For the reasons set out above, the applicant was not denied a “real” opportunity to present his case by the omission in the translation of the second letter, as explained by the evidence of Mr Akbari. The omission in the translation of the sentence now identified by Mr Akbari was not material to the outcome and did not deprive the applicant of the possibility of a successful outcome (Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 (“SZMTA”) at [2]).
The judgment of Greenwood and Flick JJ in DVO16 also supports the Minister’s response in the current case. Their Honours found that the errors in interpretation in the interview with the delegate in that case were “not self-evident” to the delegate or the IAA. The errors only became apparent when a transcript of the interview was provided to the primary judge on judicial review.
Their Honours, with respect, focused on the requirements of Part 7AA of the Act (at [4] – [5] of DVO16):
“4. Free of the constraints of Pt 7AA of the Migration Act, a conclusion may have been open that the errors in translation and the failure to translate the responses of the Appellant constituted a denial of natural justice and the common law rules of procedural fairness. A failure to adequately translate questions and answers may deny a party a fair opportunity to be heard: cf. SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142 at [5], (2013) 219 FCR 212 at 215 per Allsop CJ. And jurisdictional error may be held to have occurred even though the decision-maker is unaware of the facts and circumstances giving rise to the error: cf. SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 at [3] to [8] and [51] to [52], (2007) 232 CLR 189 at 193 to 194 and 206 per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ. There the High Court held that fraudulent advice provided to the appellants (by a person holding themselves out as a solicitor and migration agent) to the effect they should not attend a hearing before the Administrative Appeals Tribunal was such that the Tribunal’s jurisdiction remained “constructively unexercised” despite the Tribunal being unaware of the fraud. Similarly, a decision-maker may be held to have denied procedural fairness even in the absence of personal “fault”: Hot Holdings Pty Limited v Creasy [2002] HCA 51 at [22], (2002) 210 CLR 438 at 448 per Gleeson CJ; Plaintiff S157/2002 v The Commonwealth [2003] HCA 2 at [37], (2003) 211 CLR 476 at 494 per Gleeson CJ.
5. Had the common law rules of procedural fairness applied to the present decision-making process, it would probably have been concluded that there was a denial of procedural fairness on the part of both the delegate and the Authority. The errors in translation and the failure to translate responses made by the Appellant were such, with respect, that the questions being asked by the delegate were not being accurately conveyed nor answered and the difficulties being experienced by the Appellant were such that his inability to comprehend what was being asked of him was not being conveyed to the delegate.”
Although their Honours gave different reasons to those of Stewart J in dismissing the appeal in DVO16, I accept the Minister’s submissions now that nothing said by the plurality in DVO16 detracts from, or with respect, challenges, what Stewart J found in relation to the opportunities given to the applicant in that case to advance his claims and arguments.
In the current case, the applicant has not been able to show that the omission in translation in the English version of the second letter led to a miscarriage of the IAA’s review function, in that he was denied a meaningful or “real” opportunity to present his case. Ground one is not made out.
Ground Three: Consideration
Ground three asserts that the IAA acted unreasonably in not considering whether to exercise its discretion pursuant to s.473DC(3) of the Act to invite the applicant to give evidence or arguments on the “issue” of whether he had been “sacked” from the Basij, and whether that was the full extent of the interest of the Basij or the Iranian authorities in him.
Section 473DC(3) of the Act was at the relevant time in the following terms:
SECT 473DC – Getting new information
…
(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.
The applicant’s argument now is that the IAA’s findings in relation to the two letters were different to that of the delegate. The applicant’s argument focused on the IAA’s findings at [13] (at CB 350). (See [19] of this judgment above).
The applicant submitted that the delegate accepted “at face value” what was in the two letters, as translated before the delegate, and reasoned that, in particular with reference to the first letter, that this was of an administrative nature, and that the applicant was being asked to “show cause”.
However, the applicant submitted, the IAA treated the two letters in a different fashion. The applicant’s written submissions state that: “…the Authority found at [13] that the “lack of co-operation” alleged in the letters was contradicted by the documentary evidence” otherwise before the IAA. (See the applicant’s submissions at [37]).
Some care needs to be taken here. That part quoted by the applicant in his submissions is not contained at [13] (CB 350) of the IAA’s decision. Nor, when read fairly, did the IAA find as such that the letters were “contradicted” by the other documentary evidence.
The nuanced approach adopted by the IAA in its relevant reasoning is as follows. The key finding at [13] is that contained in the first sentence. The IAA accepted what the two letters said at face value. Given the ground alleges unreasonableness on the part of the IAA, it is relevant to note that that finding was reasonably open to the IAA on what was before it. What follows in [13] are the IAA’s reasons for that finding.
First, the other documentary evidence before the IAA, which the applicant himself submitted with his visa application, included translated copies of identity documents, education and training documents, a Basij Defence Forces identification card, a Basij Forces ‘compensation card’, a Basij forces ‘Members Operation Certificate’, a ‘Military Service Exemption’ card, a ‘Security Projects Executive’ card, various military ‘Forces Commission Order’ documents, and the two ‘warning letters’ from the Basij forces. This suggested that he continued to retain the trust of the Basij up to June 2012. That is, up to the month prior to the July 2012 letters.
Before the Court the applicant sought to distinguish the IAA’s findings about each of those documents from what the delegate had found. This is addressed below. For immediate purposes, the IAA’s finding in this regard reasonably arose from an evaluation of those documents.
Second, the reasoning explaining that finding was that the applicant had been commissioned to a position of some responsibility in the Basij. While the IAA acknowledged that the commission had occurred prior to the dispute the applicant had claimed had occurred in late 2011, the commission continued after the occurrence of the dispute up until February 2012. The applicant did not claim that the commission had been withdrawn during or after the dispute in late 2011.
Third, the IAA also reasoned that after February 2012 the applicant received further written commissions to participate in stop and search operations, and was authorised to carry a firearm. Further, in June 2012, only a matter of weeks before the dates of the two letters, the Basij was willing to issue a letter that he was active within that organisation.
Importantly for current purposes, the IAA accepted that the applicant had voiced his views against the actions of the Basij members, as he had claimed before the delegate.
However, the IAA reasoned that the various documents to which it referred suggested that he was not viewed with suspicion by the Basij or believed to be against them. The last sentence of [13] provides the positive answer to the implicit question consequent from the finding expressed in the first sentence. That is, the two letters were issued as a result of the applicant’s non-attendance at his scheduled duties. This also was reasonably open to the IAA on what was before it.
It is to be noted that this is precisely the conclusion reached by the delegate in relation to the two letters (see [71] above).
The applicant’s ground does not directly attack the IAA’s reasoning at [13] as being unreasonable. Rather the thrust of the ground, as set out above, is that the IAA acted unreasonably in failing to consider the exercise of discretion provided by s.473DC(3) of the Act.
The wording of the ground itself reveals one weakness in that contention. The ground asserts a failure by the IAA in relation to the “issue” of whether the applicant was sacked from the Basij, and whether this was the full extent of adverse interest from the Basij in him.
The submissions sought to explain the ground with reference to what were said to be the different findings made by the delegate to those of the IAA. The assertion of unreasonableness was said to emanate from the lack of procedural fairness by the IAA, in that the applicant was not put on notice, or given the opportunity to make submissions or give evidence, on the issue which was determinative of the review, and which differed to that of the delegate.
Putting to one side for the moment whether the IAA did arrive at its ultimate conclusion on a different basis (for the reasons given elsewhere in this judgment, it did not), or issue, to that of the delegate, the articulation and explanation of the ground fails to understand that the review conducted by the IAA was under Part 7AA of the Act.
To talk of issues in the review, and notions of procedural fairness in relation to such issues that were dispositive of the review, but were not at issue before the primary decision maker, plainly evokes s.425 of the Act, and what the High Court said about it in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 (“SZBEL”).
Before the Court the applicant relied on a number of authorities to support his argument. These are addressed below. But given the nature of the submissions to the Court, it is important to note that as a general proposition, with respect, the High Court’s reasoning in SZBEL does not assist in the current case, which involves the exercise of a discretion contained in Part 7AA of the Act. Section 425 (and for that matter, the “parallel” s.360) is not a part of Part 7AA of the Act.
It is necessary to note this because, at least implicit, if not explicit, in the applicant’s submissions, was the underlying notion of unfairness. The question, however, posed by the ground, is one of whether the IAA should have exercised a statutory discretion. The relevant concept therefore is one of reasonableness, not unfairness.
The applicant submitted that the record of interview with the delegate suggested that the delegate (and therefore, subsequently the IAA) did not give the applicant the opportunity to address the finding (made ultimately also by the IAA) that the two letters did not contain any threat of harm. That is, that the only consequence of the applicant not complying with what was required of him would be that he would be sacked from the Basij.
On the matter of the two letters the IAA did not reach a different conclusion and did not consider the matter on a different basis to that of the delegate.
The delegate found that the letters were “legitimate” and considered them at face value (CB 128.10, and see also [18] above). The delegate accepted that the applicant had witnessed the incidents he claimed to have witnessed, and received the letters in July 2012 (CB 129.2 and see [18] above).
Further, the delegate found that the letters were of an “administrative nature” in the context of his not performing the duties required of him.
As set out above at [128] – [136], the IAA essentially made similar findings. That is, the basis for finding that the applicant would not suffer relevant harm on return to Iran, and as his claim arose from the two letters, was the same by the delegate and the IAA.
As is clear from applicant’s ground, the focus is on the exercise of a discretion given by statute to the IAA. There can be no doubt that the exercise of such a discretion cannot be legally unreasonable (Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 (“Li”) at [27] – [28], Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 (“Singh”) at [44] and Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 at [6] (“Stretton”)).
In the current case, of course the IAA did not exercise the discretion in s.473DC(3) of the Act. Nor did it consider doing so. The question, therefore, is whether legal error is revealed in the circumstances of this case by its failure to consider doing so.
The applicant relied on a number of authorities for the proposition that, in the circumstances of this case, the IAA should have considered the exercise of this discretion. The Minister also relied on authority. It is convenient to consider what was relevantly said in the chronological order of the authorities.
First, Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; (2017) 253 FCR 475 (“CRY16”). That case involved a Lebanese citizen who claimed to fear harm in Lebanon because of sectarian violence, and in particular, from the Hezbollah. The delegate found that applicant was not a credible witness. The delegate rejected the factual basis for the applicant’s claimed fear (CRY16 at [4]).
The IAA in that case affirmed the delegate’s decision, but on a different basis. The IAA found that the applicant’s fear did not relate to all of Lebanon, and that he could reasonably relocate to another part of Lebanon ([5] – [6] of CRY16)
The applicant in the current case relied on CRY16 for the proposition that the IAA’s statutory power in s.473DC must be exercised reasonably (at [82]). That, plainly, is binding on this Court.
Further, the Full Court found in that case that it was legally unreasonable for the IAA not to consider getting further documents or information from the applicant in that case, about the likely impact of him relocating in Lebanon. That is, on a matter which did not arise before the delegate. The Full Court concluded (at [82] of CRY16):
“[82]…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.”
Plainly the question, with respect, to be drawn for current purposes from CRY16 is whether the IAA in the current case decided the outcome of the review on a different basis to that of the delegate. In the current case, and as set out above, that is not the case.
Second, DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12; (2018) 258 FCR 551 (“DGZ16”). The Minister relied on this authority for the proposition that (at [72]):
“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.”
(See further below).
Third, DPI17 v Minister for Home Affairs [2019] FCAFC 43 (“DPI17”). The applicant relied on this authority essentially for the proposition that there is no general principle that the IAA is never obliged to provide an applicant with an opportunity to comment, if the IAA departs from the delegate’s reasoning.
In DPI17, the IAA in that case made adverse credibility findings in relation to the applicant’s claims based on what were said to be inconsistencies in the applicant’s evidence. The delegate in that case, however, had considered these inconsistencies to be of a minor nature, and further, had accepted some of the applicant’s claims made at the interview based on the applicant’s demeanour.
The Full Court found that the IAA’s departure from what had been reasoned and found by the delegate was such that its failure to consider inviting the applicant to comment on the inconsistencies was legally unreasonable (See in particular [45], [75], and [124] – [127]).
As set out above, those circumstances do not exist in the current case. The IAA did not make any adverse credibility findings contrary to what the delegate reasoned and found. As set out above, the bases for the findings in relation to the two letters were not different to the extent that it was legally unreasonable of the IAA not to consider the exercise of the discretion under s.473DC(3) of the Act. In all, ground three is not made out.
Conclusion
Neither ground of the amended application is made out. It is appropriate to dismiss the application. I will make that order.
I certify that the preceding one hundred and sixty-two (162) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 29 January 2020
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