DZK16 v Minister for Immigration - [2021] FCCA 794

FEDERAL CIRCUIT COURT OF AUSTRALIA

DZK16 v MINISTER FOR IMMIGRATION & ANOR

[2021] FCCA 794

Catchwords:
MIGRATION – Safe Haven Enterprise (subclass 790) visa - Irregular Maritime Arrival – judicial review of Immigration Assessment Authority decision – whether there was a logical nexus between the evidence and the Immigration Assessment Authority’s conclusion – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 36(2).

Cases cited:

AWU16 v Minister for Immigration and Border Protection [2020] FCA 513

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

Minister for Immigration and Ethnic Affairsv Wu Shan Liang (1966) 185 CLR

259

Applicant:

DZK16

First Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

MLG 2777 of 2016

Judgment of:

Judge Mercuri

Hearing date:

16 July 2020

Date of Last Submission:

16 July 2020

Delivered at:

Melbourne

Delivered on:

22 April 2021

REPRESENTATION

Counsel for the applicant:

Mr Guo

Solicitors for the applicant:

Erskine Rodan & Associates

Counsel for the respondents:

Mr Solomon-Bridge

Solicitors for the respondents

Sparke Helmore

ORDERS

The applicant’s application filed 20 December 2016 and amended application filed 11 September 2019 is dismissed.
The applicant pay the first respondent’s costs in a sum to be fixed if not agreed.
The parties have liberty to apply in respect of the question of costs if no agreement is reached.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2777 of 2016

DZK16

Applicant

and

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for judicial review of the decision of Immigration Assessment Authority (“IAA”) made 16 December 2016.
There is one ground of review, namely:
The IAA’s conclusion at [39] that the Applicant’s ‘previous arrests for … being found with alcohol is behaviour that is common in Iran and on the evidence is disregarded by the authorities’ was not open on the evidence, or there was no logical connection between the evidence and that conclusion.
Particulars
The relevant evidence before the IAA was the “DFAT Country Information Report – Iran” dated 21 April 2016.[1]
[1] Applicant’s amended application filed 11 September 2019.

Background

The applicant is an Iranian man who arrived in Australia as an Irregular Maritime Arrival (“IMA”) on 1 April 2013.[2]
[2] Court book filed 14 July 2017 page 17 (“Court book”).
In his IMA interview, he stated that he left Iran because he had ‘political problems and … social problems’.[3]
[3] Court book page 12.
When asked to explain the political problems, the applicant referred to his involvement in a strike at the Tehran Bazaar he was involved in on 4 October 2012. He said that during the strike, the authorities searched his shop and confiscated some items, including a CD or DVD about the prophet Mohammed which contained anti-Islam material.[4]
[4] Court book page 12.
The applicant also stated that he had participated in other demonstrations when he was quite young but could not recall the exact purpose of those demonstrations.[5]
[5] Court book page 12.
In response to a question as to whether he had previously been arrested or detained by the police or security authorities, the applicant also stated that he had been stopped on two occasions…‘once, when I had been drinking alcohol and another time when I was with my girlfriend. …’[6]
[6] Court book page 13.
Also in his IMA interview, in response to a question as to what would happen if he were to return to Iran, the applicant said that he would ‘face a real problem … because they have the film. I might be facing the death penalty there. Even if they leave everything else aside, they forgive the other part of the issue, I do not think they would ever forgive anyone about that film.’[7]
[7] Court book page 17.
In support of his application for a Safe Haven Enterprise visa (“the visa”), the applicant attached a statement in support of his claims for protection. He states that if he was to return to Iran, he fears that he would be killed because of his ‘political opinion and imputed religion’.[8]
[8] Court book page 61.
In that statement, he provides further detail about the strike in the Tehran market in October 2012 and his role in that strike. He gives further detail about the CD that was taken from a friend’s shop which contained anti-Islamic content. The applicant went on to say that he believes ‘the government will see me as a person who encourages the public to rise up against the government and against Islam.’[9]
[9] Court book page 62 at [8].
The applicant also makes reference to previous incidents where he was found in possession of alcohol in breach of the law and that he was fined.[10] He goes on to say ‘I cannot recall exactly when this took place, and I am not sure whether I was charged or convicted of any criminal offence.’[11] He repeats this statement at page 68 of the court book.
[10] Court book page 65.
[11] Court book page 65.
On 26 September 2016, the applicant attended an interview with a delegate of the Minister for Immigration and Border Protection (“the Minister”).[12]
[12] Court book pages 92 to 102.
On 10 October 2016, the applicant’s representative submitted a post interview submission.[13] In this submission, the applicant’s representative indicated that the applicant feared harm on return to Iran and meets the definition of a genuine refugee having regard to:
a)his anti-government activities, publically stated anti-government views, being in possession of a highly controversial anti-Islamic film and being someone who would likely be perceived as having anti-government, anti-Islamic and for pro-Western views;
b)as someone who no longer identified as Muslim and therefore would be imputed as being an apostate of Islam; and
c)as a returned asylum seeker.[14]
[13] Court book page 105.
[14] Court book page 105.
The applicant’s representative also referred to various country information which they said supported the applicant’s claims.[15]
[15] Court book pages 106 to 115.
The applicant was advised by letter dated 2 November 2016 that his application for a Safe Haven Enterprise visa was rejected.[16] The delegate’s reasons for decision are set out at pages 120 to 127 of the court book.
[16] Court book page 117.
On 1 December 2016, applicant’s representative made a submission to the IAA setting out its disagreement with the delegate’s decision and reasons.[17]
[17] Court book pages 145 to 150.
On 16 December 2016 the IAA decided to affirm the delegate’s decision and advised the applicant of its decision by letter.[18]
[18] Court book pages 153 to 164.

IAA’s reasons

In its reasons for its decision, the IAA set out the background to the review at paragraphs [1] – [4].[19]
[19] Court book page 155.
The IAA then set out the applicant’s claims for protection at paragraph [5] and its factual findings at paragraphs [6] – [24].[20] In these paragraphs the IAA dealt with the applicant’s claims in relation to his role at the Teheran Bazaar strike, the alleged confiscation of a controversial CD which contained anti-Islamic views and other incidents raised by the applicant supplementary statement of claims. Relevantly, at paragraph [22] – [23] the IAA said:
[22]In a supplementary statement of claims applicant spoke to other incidents with the Iranian authorities. The first incident occurring between 2004 and 2006 when he was arrested when walking with his girlfriend. He was beaten in hospital are in and his head was put in the toilet bowl. He was released without being taken to court. The other to some five or six years ago when he was caught a bottle wine, arrested and taken to prison. Again on this occasion he was assaulted by the police, on the way to prison, at prison on the way to court. He was fined by the court and released after the fine was paid.
[23]The applicant was not questioned directly about these two incidents in his PV interview. The applicant did however provide consistent information in his entry interview when questions about being arrested or detained by the police or security. Otherwise he stated he was just trying to live his life quietly. I have no reason not to accept these claims is true. The evidence before me indicates that such behaviour is common in Iran. The reaction of the authorities on both occasions would seem heavy-handed. I have doubts as to whether the applicant was punished in the manner claimed; however, the claim was not investigated by the delegate. As I cannot say with any degree of assuredness that he wasn’t detained and mistreated, I accept that it may have occurred as claimed.[21]
[20] Court book pages 156 to 160.
[21] Court book pages 159 to 160.
The IAA set out in summary of findings at [25] – [27]. Relevantly for present purposes, at [26], the IAA said:
[26]I find that on two occasions the applicant was detained by the authorities, the first time for being caught in public with his girlfriend and on the second occasion or being caught with alcohol in his car and mistreated in detention.[22]
[22] Court book page 160.
The IAA then undertook an assessment to determine whether the applicant met the requirements necessary to establish that fell within the definition of a refugee in section 5H(1).
In this context relevant for present purposes at paragraph [32] the IAA said (references excluded):
[32]I accept applicant was arrested previously by the police on two occasions for being girlfriend in a public place and will have alcohol in his car. The authorities’ behaviour towards the applicant was unduly harsh with regards to the rest when caught his girlfriend; however this occurred some 10 to 12 years ago. Recent country information from DFAT notes authorities can take a heavy-handed approach when they periodically of Islamic community including public displays of affection with nonfamily members of the opposite sex. Pre-marital and extra-marital relations are common and unmarried couples appearing together in public is very common, particularly in the middle and upper classes. DFAT assesses that the authorities generally turn a blind eye to such couples; if they are arrested they are usually taken to a police station and released after making a written statement can sometimes be required to pay a fine. …
[33]The applicant was arrested for possessing alcohol some six years ago. This is a common occurrence. Youth in particular can experience some form of low level harassment from security authorities, such as being subject to searches and car checks. The consumption of alcohol is punishable under Article 265 of the new Islamic Penal Code with 80 lashes but the use of alcohol remains relatively widespread and alcohol can be easily obtained. While there may be a possibility of arrest arising in the future, I am not satisfied the chance of this occurring is real, or that he may experience anything more than low level harassment which I do not consider amounts to serious harm. In addition, I am satisfied all general application and applies to the population at large; on the evidence is not discriminatory in its terms nor is it applied in a discriminatory manner.
[34]I am not satisfied the applicant has a well-founded fear of persecution of these bases.
The IAA then went on to consider the applicant’s claims regarding his religious beliefs and apostasy and his claims arising from his status as a failed asylum seeker returning from Australia. It was in the context of the IAAs consideration of the last of these claims that the IAA said at paragraph [39]:
[39] Should the applicant be questioned on his return, I accept that he will be questioned as to where he has been and he may even be monitored for a while. I am not satisfied this treatment would amount to serious harm. I do not accept his low-level participation in the Tehran Bazaar general strike would be known, or become known to the authorities. His previous arrests appearing in public with his girlfriend and being found with alcohol is behaviour that is common in Iran and on evidence is disregarded by the authorities. There is also no evidence to indicate his non observance of the Shia faith would come to their attention for a profile of interest. Even if I consider these factors totality, I am not satisfied that the combination of factors would put him at risk. I find that the applicant does not face a real chance of serious harm and therefore does not have a well-founded fear of persecution.
On the basis of these findings, the IAA concluded that the applicant did not meet the requirements of the definition of a refugee in section 5H(1) of the Migration Act 1958 (Cth) (“the Act”).
The IAA then went on to consider the applicant’s claims under the complimentary protection provisions at paragraphs [41] to [46] and concluded at [47] that the applicant did not meet the requirements of section 36(2)(aa).[23] Relevantly at paragraph [44] the IAA said:
[44] I have found that there is not a real chance the applicant may be arrested for possessing alcohol or being found with public in the future. As the real chance and real risk standard are the same, I am not satisfied there is a real risk of such action being taken in the future. Even if the applicant were to arrested for being found a girlfriend in a public place, I am not satisfied that the consequent action that may result, being taken to the police station and paying a fine, amounts to significant harm is defined. It will not result in the death penalty, arbitrary deprivation of life, or torture, nor am I satisfied it caused severe pain and suffering, pain and suffering or extreme humiliation. Likewise I do not accept that and low level harassment that applicant may experience for alcohol-related matters constitutes significant harm.[24]
[23] Court book pages 163 to 164.
[24] Court book page 164.
The IAA ultimately affirmed the delegates’ decision not to grant applicant a visa.

Ground of review

As noted above, the applicant raises only one ground of review in his amended application.[25] Namely, that the inclusion at paragraph [39] that the applicant’s ‘previous arrests for … Being found with alcohol is behaviour that is common in Iran and on the evidence is disregarded by the authorities’ was not open to the IAA on the evidence and there was no logical connection between the evidence and that conclusion.
[25] Applicant’s amended application filed 11 September 2019.

Applicant’s submissions

The applicant in support of this ground, points to the ‘DFAT Country Information Report – Iran’ dated 21 April 2016. The applicant submits that there is nothing in that DFAT report, which is footnoted referred to by the IAA in the context of this discussion at paragraphs [32] and [33],[26] which would support the conclusions reached in paragraph [39] that on his return he questioned but that his previous arrests for appearing his girlfriend found with alcohol would be ‘disregarded by the authorities’.[27] The applicant submits that there was no evidence before the IAA upon which it could reach this conclusion. The applicant submits that the DFAT country information in fact states that punishment for alcohol consumption is still carried out.[28]
[26] Court book pages 161 to 162.
[27] Applicant’s submissions filed 11 September 2019 at [1]; see also court book page 163 at [39].
[28] Applicant’s submissions filed 11 September 2019 at [10].
The applicant submitted that:
It would have been one thing for the IAA draw a conclusion that it may not have been likely for the applicant to face attention at the border for his previous arrests … or that … because the applicant lawfully left Iran without incident, his return would be without incident – but that is not what the IAA did. Instead, the IAA misunderstood the evidence and relied on it for a much broader conclusion than the evidence supported – that in all cases these historical antecedents would be ‘disregarded’.[29]
[29] Applicant’s submissions filed 11 September 2019 at [11].
It is further submitted for the applicant that the error is material on the basis that the IAA itself accepted that ‘Iranians on return will likely be questioned by the authorities and that at least some returnees have been ill-treated.’[30] On this basis, the applicant submits that the decision of the IAA is affected by jurisdictional error and should be set aside and the matter remitted for determination according to law.
[30] Applicant’s submissions filed 11 September 2019 at [11]; see also court book page 162 at [37].

First respondent’s submissions

In response, it is submitted for the first respondent that there are a number of difficulties with the applicant’s case in this matter. Those matters are set out in paragraph [19] of the first respondent’s written submissions and I do not propose to repeat them in detail in this judgment.[31]
[31] See first respondent’s submissions filed 6 July 2020.

Consideration

There are two fundamental difficulties with the applicant’s submission. First, it relies upon an assertion that the only evidence before the IAA was the DFAT country information report and nothing else. As noted by the first respondent in its written submissions, there are a number of documents which would constitute country information cited by the IAA in its discussion of the applicant’s claim to fear harm is a failed asylum seeker returnee. It is clear from the footnotes 13 to 16 that the IAA did not just had regard to the DFAT report.[32]
[32] Court book pages 162 to 163.
In any event, the DFAT reports itself does deal with the of alcohol use at paragraphs 3.84 and 3.85.[33] The statements 3.85 that ‘While media reports suggest that punishment for alcohol consumption is carried out, the use of alcohol still remains relatively widespread in Iran.’[34]
[33] Supplementary court book filed 11 September 2019 page 18.
[34] Supplementary court book filed 11 September 2019 page 18.
When read together with paragraphs 5.33 to 5.35 of the DFAT report, which deals with conditions for returnees generally, particularly 5.34 which says:
Irrespective of whether a returnee is travelling on a temporary travel document or their own passport, credible sources have told DFAT that they will generally only be questioned if they had done something to attract the specific attention of authorities. The vast majority of people questioned would be released after an hour or two.[35]
[35] Supplementary court book filed 11 September 2019 pages 28 to 29.
This information was rationally capable of founding an inference that in the applicant’s case, the applicant’s history of being charged with alcohol-related offences was not likely to attract the attention of order authorities for the purposes of entry into Iran. Applying the principles in Minister for Immigration and Ethnic Affairsv Wu Shan Liang (1966) 185 CLR 259 (“Wu Shan Liang”) the IAA’s reasons are to be read fairly and ought not be construed minutely and finely an eye keenly attuned to the perception of error.
As noted by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at paragraph 124:
… Accepting rationality, as a freestanding common law requirement in decision-making, with the consequence that irrationality may attract judicial review, is complicated by three considerations. First, describing reasoning as "illogical or unreasonable, or irrational" may merely be an emphatic way of expressing disagreement with it[99], and to describe a conclusion that a decision maker is not satisfied as "irrational" might mean no more than that, on the material before the decision maker, the court would have reached the required state of satisfaction.[36]

Crennan and Bell JJ went on to say at paragraph [130]:
In the context of the tribunal’s decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the tribunal came, in relation to the state of satisfaction required under section 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is ‘clearly unjust’ or ‘arbitrary’ or ‘capricious’ or ‘unreasonable’ in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. … Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.[37]
[37] Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130].
Crennan and Bell JJ went on to say at paragraph [133] that:
The correct approach is to ask whether it was open to the tribunal to engage in the process of reasoning in which did engage and to make the findings on the material before it.[38]
[38] Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [133].
Moreover at paragraph [78], Hayden J said that:
the issue was one which minds might differ. The Federal Court evidently operated on one assumption or conclusion about that issue. The tribunal operated on another. The difference was one of degree impression and empirical judgement. It did not stem from error logic by the tribunal member. The difference could not be said to reveal an absence of any basis whatsoever for her conclusion.[39]
[39] Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [78].
Mortimer J in AWU16 V Minister for Immigration and Border Protection [2020] FCA 513 said at [25]:
[25]Save for the gloss arising from the word ‘extreme’, those propositions can all be accepted and are well-established. There is nothing in the High Court authorities such as Minister for Immigration and Citizenship v SZMDS … which suggests that the adjectival description of ‘extreme’ is a necessary element in a finding of illogicality for irrationality. If the decision-makers fact-finding is proven to be irrational or illogical, in a way which was material to the outcome of the review, that is sufficient. The stringency of the threshold arises in the need for the decision-makers reasoning to be capable, objectively, of being described as irrational or illogical.
[26]‘Irrational’ or ‘illogical’ implies that no reasonable person could reason in such a way.
I accept the first respondent’s submission that when one read the reference to ‘on the evidence’ in paragraph 9 of the IAA’s decision record,[40] fairly in the sense contemplated by Wu Shan Liang,[41] it can only reasonably be read to mean on that basis of evidence and all inferences which could reasonably be drawn from that evidence.
[40] Court book page 157.
[41] (1996) 185 CLR 259.
It is not necessary for the IAA to point to particular evidence before it to support its conclusions. It is open to the IAA to draw inferences from the evidence which support its conclusions. Any inference so drawn in paragraph [39] of the IAA’s decision record in relation to how the authorities might treat the applicant being found with alcohol,[42] was reasonably open to the IAA on the basis of the totality of the material before it. That material included country information which evidenced that alcohol consumption was diffuse in Iran. The opening words of paragraph 3.85 of the DFAT report, when read with paragraph 3.84, clearly articulate a disconnect between the laws which are on statute books and the fact that alcohol use remains relatively widespread within the community. This together with the comments contained in 5.33, 5.34 and 5.35 provide a reasonable basis upon which the IAA could have and did conclude that the previous arrests including for being found with alcohol’s behaviour which is disregarded by the authorities.
[42] Court book page 163.
It is clear from the IAA’s reasons, when read in context, that it grappled with the apparent inconsistency between the strict laws which operate in Iran regarding alcohol use and the practical reality that alcohol use was widespread that country. In those circumstances it was reasonably open to the IAA to draw an inference that notwithstanding the strict legal position, the applicant’s prior history of alcohol use and being charged in respect of that was not going to be a concern on his return even if he were stopped and questioned.
Even if I am wrong about this and the conclusion reached in paragraph [39] which is the subject of complaint in this ground of review was made in error, the question is whether it is a material error which gives rise to a jurisdictional error.
The findings made in [39] of the IAA’s decision record which is challenged by this application for review, is a conclusion reached by the IAA that if the applicant were to return to Iran, there was unlikely to be a risk of ill-treatment upon the authorities rediscovering his past behaviour upon questioning him at the airport on arrival. The issue for the IAA was whether the applicant faced a real risk of harm on his return as a result of the authorities becoming aware of his previous history with alcohol for which he was arrested and punished.
The applicant’s central claims for protection were that he faced a real risk of persecution as a result of his participation in the Tehran Bazaar strike and the fact that the authorities had seized a CD with anti-Islamic content. In determining the materiality of error, the court must, and does, have regard to the political nature of complaints made by the applicant’s about the risk of harm based on returning to Iran as a result of his prior conviction for alcohol-related offences.
In circumstances where the central claims made by were comprehensively rejected as being vague non-specific unconvincing embellished and not plausible, any error arising from the IAA’s inclusions at paragraph [39] cannot be seen as material to the applicant’s claims such that it realistically deprived the applicant of the potential for a successful outcome. This is particularly so when one considers the conclusion reached by IAA at [38] where it said:
… Reports suggest that this treatment arises where a returnee is a profile of a political activism prior to leaving Iran all whilst outside Iran.[43]
[43] Court book page 163.

Conclusion

I therefore conclude that the findings made by the IAA at paragraph [39] were reasonably open to it. The fact that a different decision-maker may have come to an alternative conclusion, is not the point. When the IAA’s findings in context and when the IAA’s reasons are read as a whole it is clear that the IAA formed the view that:
a)alcohol use in Iran although illegal is widespread;
b)the offences for use and possession of alcohol can lead offenders to experience some low-level harassment from security authorities;
c)whilst as a returned asylum seeker, the applicant would face questioning upon his return to Iran and may be monitored for a period of time his previous activity in Iran including his alcohol use would be disregarded by authorities and would not give rise to the applicant basing a real chance of service harm.
These findings were the reasons set out above reasonably open to the IAA.
As the only ground of review has not been made out, the applicant’s application is dismissed and the applicant is to pay the first respondent’s costs in a sum to be fixed if not agreed.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Mercuri

Associate:

Date: 22 April 2021

[36] Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [124].