EAC16 v Minister for Immigration
[2020] FCCA 1709
•26 June 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EAC16 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1709 |
| Catchwords: MIGRATION – Immigration Assessment Authority – protection visa – consideration of new information – question of materiality – Application dismissed. |
| Legislation: Migration Act 1958, ss.65, 473DD, 473DC |
| Cases cited: AVQ15 v Minister for Immigration and Border Protection (2018) 266 FCR 83; [2018] FCAFC 133 |
| Applicant: | EAC16 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File number: | MLG 2787 of 2016 |
| Judgment of: | Judge Blake |
| Hearing date: | 21 April 2020 |
| Date of last submission: | 29 April 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 26 June 2020 |
REPRESENTATION
| Counsel for the applicant: | Ms Costello SC |
| Solicitors for the applicant: | Victoria Legal Aid |
| Counsel for the respondents: | Mr Hosking |
| Solicitors for the respondents: | Clayton Utz Lawyers |
ORDERS
The application filed on 21 December 2016 and amended on 27 March 2020 be dismissed.
The Applicant pay the First Respondent’s costs of the proceeding fixed in the sum of $7,467.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2787 of 2016
| EAC16 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
And
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision made by the Immigration Assessment Authority (‘Authority’) on 7 December 2016. In that decision, the Authority affirmed a decision of a delegate of the Minister not to grant the Applicant a temporary protection (subclass 785) visa (‘visa’).
For the reasons that follow, I have decided to dismiss the application for review.
Background
The Applicant is an Iranian national. He arrived in Australia on 29 September 2012 as an unauthorised maritime arrival. The Applicant first applied for a protection visa on 18 September 2013. That application was declared invalid. The Applicant was invited to apply for the visa, and ultimately lodged a further application on 12 October 2015.
On 19 August 2016, a delegate of the Minister refused to grant the Applicant the visa. The matter was referred to the Authority for review on 30 August 2016.
On 12 September 2016, the Applicant provided written submissions to the Authority. The Applicant also provided a letter dated 13 September 2016 from a Captain in the Salvation Army (‘Letter’) in support of his application. The Letter and its treatment by the Authority is of importance in the present proceedings.
On 7 December 2016, the Authority affirmed the delegate’s decision to refuse the Applicant the visa.
On 21 December 2016, the Applicant filed in this Court an application for review and an affidavit in support. That application was amended and the amended application was filed on 27 March 2020 (‘Application’), pursuant to Orders made by consent on 26 March 2020. The Applicant also filed written submissions on 27 March 2020.
On 9 April 2020, the Minister filed written submissions.
The claims made by the Applicant in respect of his religion
The claims made by the Applicant in respect of his religion, and the content of the Letter, are key issues in the Application. In order to understand the context of the Application, it is necessary to briefly traverse the history of the Applicant’s claims.
The Applicant first made an application for a visa in 2013. At that time, he prepared a Statutory Declaration made on 18 September 2013 in support of the visa application (‘First Statutory Declaration’).
In the First Statutory Declaration, the Applicant claimed variously, in response to the question ‘Why I left my country’ and ‘Why I believe they will harm or mistreat me if I go back’ the following (Court Book 212-3):
a)he would be seriously harmed by the Iranian authorities for producing and selling wine;
b)his wife and children were regularly harassed in Iran; and
c)he may be at risk of harm upon return to Iran because he had travelled to a Western country and claimed asylum.
Insofar as his religion was concerned, in the First Statutory Declaration in 2013, the Applicant claimed as follows:
a)At page 212 of the Court Book:
‘Furthermore, I feared harm in Iran given I no longer believe in Islam. I became disenchanted with the faith. I felt it was strictly interpreted and relied upon by the Iranian Regime to perpetrate harm. Since coming to Australia, I have had the opportunity to explore different faiths. I have been attending my local Catholic Church each Sunday. I am enjoying learning about Christianity and feel that it may be a good religion for me. I want to complete further research before making my decision. Given I was born into the Islamic faith and no longer believe in the Islamic faith; I believe I would be seriously harmed in Iran.’
b)At page 213 of the Court Book:
‘Further, I may be at risk of harm given I no longer follow the Islamic faith. Individuals who do not follow Islam in Iran are at risk of serious harm. I would be in particular risk of harm given I was born into the Islamic faith and have decided to renounce it Further, I would be harmed given I have taken an interest in the Christian faith.’
It can be seen from the above that in 2013, the Applicant raises, inter alia, two issues. First, he was not following Islam. Second, he was exploring an interest in Christianity.
The Applicant expressly relied on the First Statutory Declaration in relation to his application for the visa.
On 18 January 2016, the Applicant attended for a Protection visa interview. The interview occurred over two years after the First Statutory Declaration. The Department summarised the interview, insofar as it concerns any claims about religion, at paragraph [59] of its written reasons as follows:
‘…At the beginning of the PV interview the applicant stated he was an adherent of the Shia sect of Islam. When he was asked about his religion in more depth, he reiterated that he was a religiously Shia Muslim. The applicant was asked about his claim to fear punishment by the Iranian authorities because of his associations to other religions in Australia. The applicant replied that he said no such thing. When asked whether he attended other religious events, the applicant stated he had sometimes attended Church with friends, however, he confirmed he still considered himself to be Muslim. The applicant stated he had no other claims for protection other than his claim regarding the consumption, production and sale of wine. When the inconsistency between his written application and comments made at PV interview were put to him, the applicant stated he had not previously made claims regarding religion or conversion. The applicant was referred to his written statement of claims from his PV application, which had his name and signature which was sent from BMA Lawyers in 2013. The applicant said he did not claim that. He stated he had two friends who were Christian with whom he had attended church with, who had asked if he wished to convert which he declined. He stated he was 63 years old, and had lived for 63 years as a Muslim so he did not think he would change religion now. …The applicant was asked to confirm the signature on the statement was his, which he confirmed. He then confirmed the statement was his. The applicant was referred to the section which described fear of religious persecution due to his claimed loss of belief in Islam and his interest in Christianity. The applicant claimed he never said that to the lawyer. The applicant was asked if, when having made the statement, it was read back to him. He stated they did not. He claimed he never said anything about religious conversion or apostasy. He suggested the interpreter explained something incorrectly.’
The extract above is significant for the following reasons. First, the Applicant says expressly he is a ‘Shia Muslim’. Second, even though he attended a Christian church, he considered himself a Muslim. Third, he said he had no other claims for protection ‘other than his claim regarding the consumption, production and sale of wine’. Fourth, when his prior statements about Christianity were put to him, he disavowed them. Fifth, he said expressly that, at his age, ‘he did not think he would change his religion now.’ I should add that I have listened to the Protection Visa interview with the Applicant which is the subject of the summary above. The summary above by the Department at [59] of its written reasons is an accurate summary of what occurred at 1 hour, 30 minutes to 1 hour, and 50 minutes of the interview.
On 27 July 2016, the Applicant in response to a request to respond to information adverse to his case from the Department, enclosed a further statutory declaration signed 27 July 2016 (‘Second Statutory Declaration’) (Court Book 333). In respect of his religion, the Applicant stated as follows in the Second Statutory Declaration:
‘12. In this statement, I also talked about my religion. I believe I have been misunderstood by the DIBP in relation to this issue. In my protection visa interview, I stated that the claims I made in my BMA statement about my religious conversion were not correct. I explained that I was not claiming a fear of perceution on the basis of my religion and was not thinking about converting. I wish to clarify my claims in relation to my religion. As I get older, I no longer consider myself a practising muslim nor am I a religious person. I am also wanted by the authorities for selling and producing alcohol as a western activity and believe I could be imputed with an anti islam view if I am returned to Iran. I therefore fear I may be harmed by the authorities as a non pracisting muslim.’ (errors in original)
The following observations can be made about the above document, prepared by the Applicant less than a month before the Department determined the matter. First, the Applicant states clearly he is not ‘a religious person’. Second, he fears harm as a non-practising Muslim. Third, he refers to being ‘misunderstood’ by the Department. This is also the second occasion he claims a misunderstanding or miscommunication about his religion.
On 19 August 2016, the Department refused the Applicant’s application for the visa.
The Department’s decision was referred to the Authority for review some 11 days later on 30 August 2016.
On 12 September 2016, the Applicant wrote to the Authority. In relation to his religious status, the Applicant stated what is set out below. It is important to note that what is set out below is written 8 months after what is contained in the protection visa interview:
‘Religious Status
Contrary to para 59, I didn't introduce myself as a Shia Muslim. I said I was born a Shia. I never believed in it. If I did I wouldn't be producing and selling alcohol; that is the biggest affront to the religion. I said I was born a Shia Muslim. I haven't officially changed my religion but I'm in the process of it.
So at the time of the interview, I said that I hadn't changed my religion and because I hadn't officially changed my religion. That wasn't central to my claim. I was still Shia Muslim 'in name' because at that time I was still investigating. Now, I am more determined to convert, but at that time, my answer was because I hadn't changed my religion officially.
The main issue that I have is my previous activities. Religion is not central to my claim, but I can see there is a lot of weight put on this question. My primary claim is about alcohol. Initially, because I had not changed my religion officially, religion was secondary. But considering that my wife has now betrayed me and revealed my secret to the authorities I am now more determined to change my religion.
I am more knowledgeable about Christianity and I have a stronger faith because of my studies. It took me this long to completely understand the religion and make up my mind about the change. I am now determined this is the faith I want to follow but it's not because my wife has revealed this secret. I can never return to Iran because of these death sentences: first and primary, that I have these activities in producing and selling wine, and now, because my wife has told the authorities I have turned my back on religion.
There is a term in Farsi that the clerics use to refer to someone who turns their back on religion, translated that is "apostate." If someone is labelled as an apostate, they are arrested and killed, to set an example for other people.
I always said I was born as a Shia. I've never considered myself a Shia. I can say that I didn't believe anything until I started studying Christianity. At the moment, I don't label myself anything. But I would like to be baptised as a Christian because that is what I have chosen. I have been going to church for the past two years and studying this religion and I have friends that can vouch for that.’
In addition to the above, the Applicant relied on the Letter which is dated 13 September 2016. This Letter provides as follows:
‘13 September 2016
To whom it may concern:
Re: Reference for [the Applicant]
I have known [the Applicant] for approximately 2 years now, after meeting him when I was in my previous appointment as the corps officer at [Location A] — [Location B] of the Salvation Army.
My initial introduction to [the Applicant] was when he came to The Salvation Army for help to support him and his family who were living in [Location B] at that time. Over the years [the Applicant] continued to attend The Salvation Army community lunch on a weekly basis and through these weekly meetings I got to know [the Applicant]. As I got to know [the Applicant] more I invited him along to our church services which were held on a Sunday morning and [the Applicant] became a regular attender.
As time went by we continued our conversations about faith and religion, and [the Applicant] showed a keen interest in the Christian faith, at times sharing together in prayer particularly for him, his family and the circumstances he found himself in.
During that time I have experienced [the Applicant] to be a gentle natured polite and considerate man who has shown me, and others he has come into contact with, the utmost respect. There came a time when his family returned back to Iran and he expressed his deep sadness for this, yet despite the sadness he was feeling, [the Applicant] expressed that for various reasons he needed to stay in Australia. After his family returned to Iran [the Applicant] could no longer afford the rent in the house he was staying in, and I helped him to move out and make the arrangements to tidy his house up before leaving.
[The Applicant] is very distressed about the prospect of having to return to Iran. [The Applicant] has become a Christian, and is very strong in his Christian faith. His great fear is that if he is required to return to Iran the government will most certainly kill him. It is my hope and prayer that this reference will serve to support him in his application to remain in Australia.
For further clarification, please don't hesitate to contact me on [phone number omitted].
Yours Sincerely,
[Name omitted] (Captain)
Divisional Secretary The Salvation Army Central Victoria Division’
Two things may be observed about the Letter. First, the writer says the Applicant ‘has become a Christian’. Second, the letter speaks to the Applicant’s engagement with Christianity up to the date it is written.
The Decision of the IAA
An issue in the proceedings before the Authority and in the present Application, is whether the Letter constituted ‘new information’ for the purposes of section 473DD of the Migration Act 1958 (‘Act’).
At the relevant time, section 473DD of the Act provided as follows:
‘For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.’
The Authority was not satisfied, among other things, that the requirements of section 473DD(b)(i) or (ii) were present, such that it should have regard to the Letter. The Authority’s reasons in respect of this, which form the basis of one limb of the Applicant’s claim in the present Application, are as follows:
‘15. Although the letter post-dates the delegate's decision and does not specify precise dates as to when the applicant became a Christian and developed a strong Christian faith, it is not apparent why the letter could not have been provided to the delegate before the decision was made. As noted above, the letter describes the author's dealings with the applicant over a two year period. Moreover, while I accept that the letter expresses views genuinely held by the author, I am not satisfied that it contains credible personal information, as information in this letter appears to be inconsistent with other information provided by the applicant. For example, in the September 2013 statutory declaration, which was resubmitted without amendment with the TPV application lodged in November 2015, the applicant stated that he had attended the Catholic Church; he made no mention of contact with the Salvation Army. Nor did he mention this at the January 2016 TPV interview, at which he stated that he was not a Christian, he had not converted to Christianity despite invitations by friends to do so, he was not interested in changing his religion at his age, and he did not fear returning to Iran for reason of his religious beliefs. The applicant was informed at the interview that he could provide further information to the delegate at any time before a decision was made, and in fact he did provide further information in a statutory declaration dated 27 July 2016 in response to a "natural justice letter" sent by the delegate. He did not provide any information at that time indicating that he had now made a firm commitment to becoming a Christian; indeed, he stated that he is "not a religious person". He again indicated that he was not relying on religious claims, including a conversion to Christianity. If it were the case that the applicant had developed a strong faith and become a Christian between his last contact with the delegate in July 2016, or after the delegate's decision was made on 19 August 2016, this rapid development would, in my view, cast significant doubt on its genuineness, especially in light of the applicant's comments at the TPV interview in January that he really had no intention of taking up a new religion. I am not satisfied that the requirements of s.473DD(b)(i) or (ii) are met, or that there are exceptional circumstances which justify consideration of this letter.’
I now turn to deal with each of the Grounds of Review in the Application.
Grounds of review
The Grounds of Review in the Application are as follows:
‘1. The IAA misconstrued s 473DD(b)(i) of the Migration Act 1958 (Cth)(the Act) in finding that the information in a letter from Captain [X] of the Salvation Army could have been provided before the delegate’s decision.
2. Further and alternatively, the IAA misconstrued “credible personal information” in its application of s473DD(b)(ii) of the Act to the facts in finding that Captain [X]’s letter was not “credible”.
3. Further and alternatively, the IAA’s rejection of the information in Captain [X]’s letter as “inconsistent” and therefore “not credible” was illogical/ unreasonable.’
Ground 1
Ground 1 directs attention to the terms of section 473DD of the Act, and also to the definition of ‘new information’. I have set out section 473DD of the Act earlier in these reasons.
The term ‘new information’ is defined within section 473DC(1) of the Act in the following way:
‘(1) Subject to this Part, the Immigration Assessment Authority may in relation to a fast track decision, get any documents or information (new information) that:
(a) were not before the Minister when the Minister made the decision under section 65; and
(b) the Authority considers may be relevant.’
It can be seen from the definition above that the term ‘new information’, when used in the context of section 473DD of the Act, is capable of being constituted by ‘documents or information’ that ‘were not before the Minister’. The use of the word ‘or’ is instructive. The Act contemplates not just that ‘information’ may be new information. It also contemplates that a document of itself can constitute new information.
Further, it can be seen from the definition in section 473DC that subparagraph (a) requires that the information or documents ‘were not before the Minister when the Minister made the decision under section 65’. In this respect, subparagraph (a) of section 473DC replicates to a limited extent what is found in section 473DD(b)(i). Section 473DD(b)(i) refers relevantly to information that ‘was not, and could not have been, provided to the Minister before the Minister made the decision under section 65’.
The Minister contends, inter alia, that the information in the Letter could have been provided to the delegate before the delegate made the decision. The Minister submits that the relevant question for the purpose of section 473DD(b)(i) is not whether a ‘particular document’ in which information is contained could have been provided to the delegate before he or she made the decision under section 65 of the Act, but whether the ‘information itself’ could have been provided to the delegate before that time.
I am unable to see any support for the proposition above in the words of the Act. As I have indicated earlier, the use of the word ‘or’ is instructive. A document of itself can be new information irrespective of its content particularly a document created after a delegate makes his or her decision.
In the present circumstances, the Letter was not in existence at the time the delegate made his or her decision. It therefore could not have been placed before the Minister or his delegate.
The Minister contends that to adopt the view above would simply create a situation where it would be possible for an applicant to cause any information, no matter how old, to be placed before the Authority simply by creating a new document after the date of the delegate’s decision, and inserting any information, including old information, in the document. While that may be an issue, it is not one that I need to consider or determine in this case. This is because, when regard is had to the content of the Letter, I am also satisfied that it contains information that is new information.
When the Letter is examined, there are two matters that stand out. First, the Letter is dated 13 September 2016. It therefore speaks to factual matters that exist up to that date. The Minister submitted that the Letter was cast in general terms and that there was nothing in the text of the Letter that could be seen as pointing to the continuing development of the Applicant’s religious beliefs. I accept that the Letter refers in general terms to the Applicant’s religious beliefs. In my view, however, the fact that the Letter contains statements about the Applicant’s religious beliefs that exist up to 13 September 2016 is new information i.e. the beliefs existed up to that date and subsisted after the delegate’s decision. Further and importantly in this case, there are two other matters. The Letter is signed by a person with some standing within the Salvation Army. The Letter also speaks to the Applicant having ‘become a Christian’, though it is difficult to know exactly when this occurred or what steps were taken. This is also new information.
It follows that, when regard is had to the matters above, the Letter is properly to be regarded as ‘new information’ for the purposes of section 473DD(b)(i) of the Act and section 473DC(1) of the Act. The Authority erred in finding that the Letter could have been provided before the delegate’s decision.
Ground 2
By Ground 2 of the Grounds of Review, the Applicant advanced an alternative submission that the Authority had misconstrued ‘credible personal information’ in its application of section 473DD(b)(ii) of the Act. The Applicant contended that while the Authority accepted that the Letter expressed the genuine views of the author, it went on to find that ‘it was not satisfied that it contains credible personal information, as information in this letter appears to be inconsistent with other information provided by the applicant’ ([15] of the Authority’s reasons). This was said to be an error. In support of his submission, the Applicant relied on the decision of the Federal Court of Australia in CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 (‘CSR16’). In CSR16, the Federal Court found at [43], among other things, that:
‘The Authority required satisfaction that the “new information” was true when all that the s 473DD(b)(ii) criteria requires is the Authority’s satisfaction that the new information is capable of being believed at the deliberative stage of the Authority’s review. In doing so, the Authority misconstrued s 473DD(b)(ii) and misconceived what the exercise of its statutory power entailed.’
The Minister contended that the decision in CSR16 was wrongly decided, however accepted that this Court was bound to follow the Federal Court’s decision in CSR16. The Minister also accepted that the approach of the Authority in paragraph [15] of the decision went beyond just deciding whether the Letter was capable of being believed, and that the Authority made findings about whether, in fact, it accepted what was stated in the Letter.
In light of the above, the Authority misconstrued ‘credible personal information’ in its application of section 473DD(b)(ii) of the Act to the facts in finding that the Letter was not credible.
Are the errors identified in Grounds 1 and 2 above material errors?
The Minister submitted that the Court should, notwithstanding the errors above, dismiss Grounds 1 and 2 of the Grounds of Review. The Minister’s submission in this respect was that even though errors had been made, the errors were not material to the ultimate outcome having regard to principles enunciated by the High Court of Australia in Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 (‘Hossain’). The decision in CSR16 was made before the decisions of the High Court of Australia in Hossain and also Minister for Immigration and Border Protection vSZMTA (2019) 264 CLR 421 at 445. The Minister submitted, and I accept, that it is now well established that an error made by an administrative decision maker will not be a jurisdictional error unless it is material, in the sense that it could realistically have resulted in the decision maker making a different decision.
The Applicant’s position was that the errors made by the Authority were material errors. His submissions in this respect included the following.
First, the Authority examined the Letter through the lens of whether its content was true or not. Put another way, it did not examine the Letter in the manner in which it was required to having regard to the principles in CSR16. That approach fundamentally coloured the Authority’s reasons and its consideration of the information in the Letter.
Second, the present matter was similar to the circumstances that arose in Minister for Immigration and Border Protection v CPA16 [2019] FCAFC 40 (‘CPA16’). In that case, a letter from the applicant’s parish priest was not provided by the Secretary of the Department to the Authority. A Full Court of the Federal Court of Australia concluded that failure to provide the letter from the priest could realistically have resulted in the Authority making a different decision.
Third, the Authority’s consideration of the Applicant’s claims in respect of his Christianity at paragraphs [26] to [31] of the Authority’s decision do not include any reference to the content of the Letter.
Fourth, the Applicant took issue with the Authority’s characterisation of the Applicant’s evidence as to his Christianity as ‘extremely inconsistent and contradictory’. There are a number of limbs to this argument. These include that what the Applicant submitted about his religion was not inconsistent, but rather, what he said merely charts the development of his faith. Further, while the Authority rejected the whole of the Letter as not credible because it was not consistent with the Applicant’s claims, it nevertheless accepted some facts in the Letter as credible eg: the Applicant’s attendance at church. Further, it was inconsistent and illogical for the Authority to accept that the Letter expresses views genuinely held by the author, but also to find that the Letter did not contain credible personal information about the Applicant and his religious beliefs.
The Minister’s contentions in respect of materiality can be summarised as follows:
a)the Authority found that there were not exceptional circumstances to justify considering the Letter, as required by section 473DD(a) of the Act, and the Applicant has not challenged the Authority’s finding that there were not exceptional circumstances to justify considering the letter; and
b)even if the Authority had decided it was permitted under section 473DD to have regard to the Letter, it is clear from the reasoning of the Authority that it would not have made a realistic difference to the decision of the Authority, in the sense contemplated in Hossain.
Exceptional circumstances
The Minister submitted, and I accept, that the requirements of subparagraph 473DD(a) are cumulative on the requirements in section 473DD(b): see Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at 229, [29] (‘Plaintiff M174’). I further accept that it is well-established that the matters that may be relevant to determining whether there are exceptional circumstances to justify considering new information are not limited to the matters identified in section 473DD(b): Plaintiff M174 at 229 [30].
In respect of the interaction between subparagraphs (a) and (b) of section 473DD, the Applicant emphasised that the Authority’s satisfaction as to whether information fell within the scope of subparagraph (b) may contribute to its satisfaction that there exist ‘exceptional circumstances’ within subparagraph (a). The Applicant in this respect relied upon the comments of White J in BVZ16 v Minister for Immigration [2017] FCA 958 (‘BVZ16’) at paragraph [9] where White J stated as follows:
‘The requirements of subparas (a) and (b) are cumulative but may nevertheless overlap to some extent. The Authority’s satisfaction that the new information could not have been provided to the Minister at the time of the s 65 decision (subpara (b)(i)) may contribute to its satisfaction that there are exceptional circumstances to justify considering the new information. So also may the Authority’s satisfaction that the new information is credible personal information which had not previously been known (subpara (b)(ii)). Accordingly, one would expect the IAA to consider the subpara (b) matters when considering in a given case whether the circumstances are exceptional. Obviously enough, however, the matters which may contribute to a finding that the circumstances in a particular case are exceptional may extend beyond those specified in subparas (b)(i) and (ii) and it seems improbable that the Authority could be satisfied, by reference to one matter only, that an applicant’s circumstances are not exceptional.’
White J made his decision prior to the decision of the High Court of Australia in Hossain. In this regard, the interaction between subparagraphs (a) and (b) of section 473DD has been the subject of more recent comment in BKX18 v Minister for Home Affairs [2020] FCA 432 (‘BKX18’). In BKX18, Logan J considered the situation where no error had been made in relation to the approach of the Authority in respect of section 473DD(a), but an error was asserted in respect of the application of section 473DD(b). Logan J considered whether such an error could be material in the sense described in Hossain. At paragraph [51] of his decision, Logan J stated:
‘An overarching difficulty which attends ground 2 and, for that matter, ground 1 is that, if, as I have concluded, the learned primary judge made no error in concluding that the Authority’s approach to s 473DD(a) was not affected by jurisdictional error, any error made by the Authority in relation to s 477DD(b) could not be material in the sense discussed in Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123. That is because, as Kiefel CJ, Gageler and Keane JJ put it, at [31], in concluding their discussion of jurisdictional error in that case, “Ordinarily, … breach of a condition cannot be material unless compliance with the condition could have resulted in the making of a different decision”. Because the precondition set out in s 473DD(a) must always be met before the Authority can consider any new information, if the Authority concludes, without legal error, that the s 473DD(a) precondition is not met, any legal error in its consideration of whether one or the other of the conditions in s 473DD(b) is met cannot be material, as compliance with the requirements of that paragraph necessarily could not result in the making of a different decision. The error would not, for this reason, be jurisdictional.’
It is not apparent that Logan J was taken to the decision of White J in BVZ16. What is significant, however, is that Logan J in BKX18 was assessing the competing considerations under subparagraphs (a) and (b) of section 473DD in the context of the High Court’s decision in Hossain. I regard that as important in approaching the task before me in the present matter and therefore propose to follow the approach in BKX18.
I then turn to consider what the Authority said about the existence of ‘exceptional circumstances’. At paragraph [15] of its reasons (which are set out earlier in these reasons), the Authority, inter alia, dealt with the evidence concerning the Applicant’s Christianity and the emergence of the Letter. Having dealt with various matters, the Authority stated at the conclusion of paragraph [15] as follows: ‘I am not satisfied that the requirements of s473DD(b)(i) or (ii) are met, or that there are exceptional circumstances which justify consideration of this letter’. It is plain from this sentence that the Authority considered whether there were exceptional circumstances warranting consideration of the Letter, and was satisfied that such exceptional circumstances did not exist.
In the present proceeding, no error has been identified in relation to the finding by the Authority that exceptional circumstances did not exist. Given that matter, I am of the view, adopting the reasoning of Logan J in BKX18 at [51], that any errors made by the Authority in relation to its assessment of the matters in subparagraph (b) are not material to the ultimate outcome. In my view, the Applicant needed to do more than simply point to the overlap between subparagraphs (a) and (b) to make good any submission as to materiality. As White J noted in BVZ16, matters which may contribute to a finding that the circumstances in a particular case are exceptional may extend beyond those matters specified in subparagraph (b) of section 473DD.
Ground 3 and the remaining materiality ground
The remaining issues before me concern whether proper consideration of the Letter could have made a realistic difference to the outcome, and whether the rejection of the information in the Letter as ‘inconsistent’ and therefore ‘not credible’ was illogical or unreasonable. It is convenient to consider these matters together.
The parties were in agreement as to the principles I am required to apply in determining Ground 3 of the Grounds of Review. Those principles were conveniently summarised in the submissions of the Minister which I have summarised in the paragraph below and adopted.
It is accepted that adverse credibility findings are capable of giving rise to jurisdictional error (CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 at [38] (‘CQG15’)), including on the basis that those findings are illogical or irrational, or unsupported by probative evidence (see DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175 at [41]; ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109 at [96]), or made in circumstances where the Tribunal overlooks significant material (AVQ15 v Minister for Immigration and Border Protection (2018) 266 FCR 83 at [29]). The following matters are, however, also relevant. First, ‘considerable caution must … be exercised before too readily acceding to a proposition that adverse findings as to credit expose jurisdictional error’ (CQG15 at [60], citing Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 [56]). Second, an appellant who seeks to challenge adverse credibility findings on the ground that they are irrational or illogical must meet a high standard. The position is often expressed to be ‘if reasonable minds could differ as to the conclusions to be drawn from the evidence, illogicality or irrationality… could not arise simply because one conclusion has been preferred to another possible conclusion’ (CQG15 at [59]); citing Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, at [131]
In order to assess whether proper consideration of the Letter would have made a realistic difference to the conclusion reached by the Authority, or whether the Authority’s reasons were illogical or unreasonable, it is necessary to have regard to those reasons. I have already set out earlier in this decision paragraph [15] of the decision of the Authority. In addition to paragraph [15], the Authority dealt with the Applicant’s claims in respect of his Christianity at paragraphs [26] to paragraph [31] of its reasons. Those paragraphs are as follows:
‘26. The applicant has provided extremely inconsistent and contradictory information about his religious beliefs.
27. In the statutory declaration dated 18 September 2013 the applicant stated that "currently" he does not believe in a religion. He claimed that he was disenchanted with Islam in Iran and since coming to Australia he has been attending his local Catholic church each Sunday. He said that he was enjoying learning about Christianity and thought it might be a good religion for him. He said that he wanted to complete further research before making a decision.
28. In his TPV application lodged in November 2015 the applicant stated that his religion is Shia Muslim. He submitted the same statutory declaration setting out his claims to protection.
29. At the SHEV interview in January 2016 he said that his religion was Shia, and he confirmed that he considered himself a Muslim. He confirmed several times that his only reason to fear returning to Iran was because of the alcohol issue. He stated that sometimes he went to church with friends and they had suggested that he convert but he had declined. He completely denied having claimed previously that he feared problems on return to Iran because he had associated with "different religions" in Australia. When the contents of the September 2013 statutory declaration - indicating that that he was investigating Christianity and regularly attending church in Australia, and that he feared return to Iran for this reason - were shown to him, he said that the document had not been read to him before he signed it, and suggested that the interpreter must have mistranslated what he said because he had never made this claim.
30. In the submission to the IAA he sought to clarify his earlier evidence, saying that when he said at the SHEV interview that he was Shia, he meant that was his background. He meant that he had not officially changed his religion so still considered himself a Muslim in name. He stated has been going to church for two years.
31. I do not accept that the applicant has provided this apparently contradictory information about his religious beliefs and practice because he was confused or misunderstood what was being asked of him, or because the interpreter who assisted with the September 2013 statutory declaration misunderstood what the applicant said. Given the amount of detail in the September 2013 statutory declaration about his religious claims, I do not accept that this was the result of an interpreting error. In any case, the information provided by the applicant in his submission to the IAA – to the extent that it is a clarification or restatement of his earlier claims – is broadly consistent with that in the statutory declaration, so his disavowal of that information at the SHEV interview appears to have been insincere and untruthful. It is clear from the questions asked and the answers given at the TPV interview that the applicant did not think he was being asked about his religious background rather than his current status, and I do not accept this assertion in the IAA submission. While I accept that the applicant has attended church in Australia, I do not accept that he has been genuinely exploring Christianity. The shifting and changing evidence about this, together with my negative view of his overall credibility leads me to conclude that the applicant's interaction with Christian communities in Australia has been engaged in primarily because he thought it might assist his claims to refugee status, although I accept that he has also been motivated by the social interaction with his friends who also attend. I do not accept that this attendance at church would be known to the Iranian authorities and I do not accept that the applicant would face harm for this reason should he return. I do not accept that he would seek to practise the Christian religion in Iran not because he would be afraid to do so, but because he is not a Christian.’
The Applicant’s submissions as to materiality set out earlier are relevant to this ground, and I have taken them into account. Additionally, the Applicant submitted this ground was made out because the Letter post-dated the delegate’s decision and the Letter did not exist before the delegate made a decision. The Applicant also submitted that the Letter described the development of the Applicant’s religious beliefs, and if those beliefs developed after the delegate’s decision, that development was not inconsistent with earlier statements.
The Minister submitted that the reasoning of the Authority was not illogical or unreasonable when it effectively described the Letter as being inconsistent with the Applicant’s prior claims made in relation to his Christianity.
I have considered closely the reasons of the Authority and the competing submissions. Having done so, I am satisfied of the following. The reasoning of the Authority was open to it i.e. the rejection of the information in the Letter as ‘inconsistent’ and therefore ‘not credible’ was not illogical or unreasonable. Second, any error made by the Authority in relation to its handling of the Letter could not have realistically made a difference to the decision ultimately reached by the Authority. I hold these views for the following reasons.
First, the Authority in this matter had the Letter before it and clearly and self-evidently engaged with the content of the Letter. The Authority expressly considered the information in the Letter and the possibility that the Applicant might have developed a strong Christian faith between his last contact with the delegate in July 2016, or after the delegate’s decision in August 2016, and the date of the Letter. So much is apparent from the following sentence contained within paragraph [15]:
‘If it were the case that the applicant had developed a strong faith and become a Christian between his last contact with the delegate in July 2016, or after the delegate’s decision was made in 19 August 2016, this rapid development would, in my view, cast significant doubt on its genuineness especially in light of the applicant’s comments at the TPV interview in January that he really had no intention of taking up a new religion’
Second, the Authority made findings in relation to the Letter. As noted above, it expressly found at paragraph [15] that there was a significant doubt about the genuineness of the Applicant taking up a new religion. It reached such a conclusion after setting out and examining the history of the Applicant’s statements as to his Christianity and considering and weighing those statements alongside the content of the Letter. This was not a case where the Applicant does not know what the Authority concluded in respect of the Letter.
Third, the decision in CPA16 does not assist the Applicant given the facts of this matter. CPA16 concerned a decision where the Secretary failed to provide to the Authority the relevant correspondence from the parish priest. It followed that the Authority did not have the letter from the priest before it when it came to making its decision. That stands in contrast to the present matter where the Authority had the Letter before it, and expressed views about it.
Fourth, there was ample material upon which the Authority could reach a conclusion that the statements in the Letter did not reflect a genuine commitment to Christianity, given the Applicant’s previous statements. I have set these out earlier. They included:
a)the statements in November 2015 in which the Applicant continued to rely on earlier statements he made in the First Statutory Declaration. Those statements record the Applicant as having done no more than having ‘taken an interest in the Christian faith’; (Court Book 277);
b)his statements to the delegate during the protection visa interview on 18 January 2016, which are recorded in the delegate’s decision at Court Book 352, which include the following:
i)when asked about his claim to fear punishment from the Iranian authorities because of his association with other religions in Australia, the Applicant replying that he said no such thing;
ii)the Applicant’s confirmation that he had not previously made claims regarding his religion or conversion;
iii)the statements by the Applicant that he had two friends who were Christian with whom he had attended church who had asked if he wished to convert, and he had declined. The delegate also noted the Applicant as having stated that he ‘was 63 years old, had lived for 63 years as a Muslim so he did not think he would change religion now’.
c)the statements in the Second Statutory Declaration made in July 2016, a mere three or so weeks before the delegate’s decision (at Court Book 335-6) in which the Applicant stated:
‘In my protection visa interview… I explained that I was not claiming a fear of persecution on the basis of my religion and was not thinking about converting. I wish to clarify my claims in relation to my religion. As I get older, I no longer consider myself a practising Muslim nor am I a religious person. I am also wanted by the authorities for selling and producing alcohol as a Western activity and I believe I could be imputed with an anti Islam view if I am return to Iran. I therefore fear I may be harmed by the authorities as a non-practising muslim’.
In short, what the material discloses was that the Applicant, on his own account of events, spent a number of years since his arrival in Australia exploring Christianity without committing to it. That had been the position from the time of the First Statutory Declaration in 2013 until 1 July 2016, when he made the Second Statutory Declaration. Given the length of time that had elapsed as recorded above, it was open to the Authority to hold doubts about the rapid development of the Applicant’s religious beliefs between July 2016 and the date of the Letter.
For all of the above reasons, I am satisfied that the errors made by the Authority could not have realistically made a difference to the outcome, and I am also satisfied that the reasoning of the Authority was neither illogical or unreasonable.
For all of the reasons above, the Authority has not committed jurisdictional error. I therefore dismiss the Application.
I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Judge Blake
Associate:
Date: 26 June 2020
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