ECN18 v Minister for Home Affairs
[2024] FedCFamC2G 433
•15 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
ECN18 v Minister for Home Affairs [2024] FedCFamC2G 433
File number: MLG 2367 of 2018 Judgment of: JUDGE RILEY Date of judgment: 15 May 2024 Catchwords: MIGRATION – Administrative Appeals Tribunal – protection visa – whether the Tribunal failed to consider whether the applicant faced indefinite detention as a result of his visa cancellation – whether the Tribunal was obliged to notify the applicant of its reliance on the 2018 DFAT report for Iran. Legislation: Migration Act 1958 ss. 101, 107, 109, 189, 196, 198, 424A, 425
Migration Regulations 1994 r.2.41
Cases cited: ANH16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 10
DLJ18 v Minister for Home Affairs (2019) 273 FCR 66; [2019] FCAFC 236
Le v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 1547
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) ALJR 1005; [2023] HCA 37Division: Division 2 General Federal Law Number of paragraphs: 39 Date of hearing: 8 April 2024 Place: Melbourne Counsel for the Applicant: Suganya Pathanjalimanoharar Solicitor for the Applicant: Victoria Legal Aid Counsel for the First Respondent: Kylie McInnes Counsel for the Second Respondent: No appearance Solicitor for the First and Second Respondents: Mills Oakley ORDERS
MLG 2367 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ECN18
Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE RILEY
DATE OF ORDER:
15 MAY 2024
THE COURT ORDERS THAT:
1.The title of the proceeding be amended so that the name of the first respondent is “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The application filed on 9 August 2018, amended on 16 October 2023 and further amended on 20 December 2023 be dismissed.
Note: The form of the order is subject to the entry in the court’s records.
Note:This copy of the court’s reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)..
REASONS FOR JUDGMENT
JUDGE RILEY:
INTRODUCTION
This is an application for review of a decision made by the Administrative Appeals Tribunal. In that decision, the Tribunal affirmed a decision of a delegate of the Minister to cancel a protection visa under s.109 of the Migration Act 1958 (“the Act”).
BACKGROUND
In his written submissions filed on 16 October 2023, the applicant provided the following background to this matter:
2. The Applicant is a Faili Kurd who arrived from Iran on 17 July 2010 and was placed in immigration detention on Christmas Island. He claimed to be stateless and of Faili Kurdish ethnicity. On 21 October 2011, he was found by an Independent Merits Review assessor to satisfy the criterion for a protection visa in s 36(2) of the Act and was invited to lodge a protection visa application.
3. The Applicant was granted a protection visa on 29 October 2012. Subsequently, on 5 November 2012, he informed the Department that his Visa Evidence Card incorrectly stated he was stateless and should state that he was Iranian.
4. Subsequently, on 28 June 2016, the Applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) of his protection visa, on the basis that he had incorrectly stated in his protection visa application that he was stateless when in fact he held Iranian citizenship. The NOICC invited the Applicant to respond within 14 days. Among other things, it stated that the delegate would consider ‘[w]hether there are mandatory legal consequences to a cancellation decision’. The Applicant provided submissions in response.
5. On 29 December 2016, a delegate of the Minister found that the Applicant had not complied with s 101(b) of the Act, that grounds existed for cancellation of his visa under s 109 and that the visa should be cancelled (Delegate Decision).
6. In support of his application to the Tribunal for review of the Delegate Decision, the Applicant provided a statutory declaration and written submissions in April 2018. He attended a Tribunal hearing on 24 April 2018. Further, post-hearing submissions were made on his behalf on 15 and 27 May 2018.
7. The submissions on behalf of the Applicant made reference to the then-current Department of Foreign Affairs and Trade country information report on Iran published in 2016 (DFAT 2016 report).
8. On 7 June 2018, the Department of Foreign Affairs and Trade published a new country information report on Iran (DFAT 2018 report), which replaced the DFAT 2016 report.
9. On 6 July 2018, the Tribunal affirmed the Delegate Decision. The Tribunal found that the NOICC was a valid notice under s 107 of the Act. The AAT decision first dealt with various prescribed circumstances set out in reg 2.41 of the Migration Regulations 1994 before going on to deal with the Applicant’s contentions regarding both breach of non-refoulement obligations and legal consequences of the decision under the heading ‘Other considerations’.
(footnotes omitted)
In her written submissions filed on 27 October 2023, the Minister provided the following additional background to this matter:
4. On 29 September 2016, an International Treaties Obligations Assessment (ITOA) was undertaken: Court Book (CB) 207-226. The ITOA considered the applicant’s responses to the 28 June 2016 Notice of Intention to Consider Cancellation (NOICC): CB 209 [8]. The ITOA found that Australia does not owe non-refoulement obligations to the applicant: CB 223 [82] and 226 [97].
5. The ITOA was relied upon by the delegate when considering whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation: CB 243 [30]-[31].
By way of further additional background, after obtaining his protection visa, the applicant obtained an Iranian passport on the basis that he is an Iranian citizen and not stateless at all. He returned to Iran for a visit, on his Iranian passport, and then returned to Australia. His Australian visa was later cancelled.
MATERIAL RELIED UPON
At the hearing before this court, the applicant relied upon:
(a)his application filed on 9 August 2018, amended on 16 October 2023 and further amended on 20 December 2023 (“the application”);
(b)the court book filed on 2 March 2020;
(c)his submissions filed on 16 October 2023;
(d)his supplementary submissions filed on 20 December 2023;
(e)the affidavit affirmed by Rachel Mason on 13 October 2023;
(f)the joint bundle of authorities emailed to chambers on 8 November 2023; and
(g)the further joint bundle of authorities filed on 5 April 2024;
At the hearing before this court, the Minister relied upon:
(a)her response filed on 8 November 2019;
(b)the court book filed on 2 March 2020;
(c)her submissions filed on 27 October 2023;
(d)her supplementary submissions filed on 19 January 2024;
(e)the joint bundle of authorities emailed to chambers on 8 November 2023; and
(f)the further joint bundle of authorities filed on 5 April 2024;
LEGISLATION
Section 101 of the Act provided that:
Visa applications to be correct
A non-citizen must fill in or complete his or her application form in such a way that:
(a) all questions on it are answered; and
(b) no incorrect answers are given or provided.
Section 107 of the Act provided that:
Notice of incorrect applications
(1) If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a) giving particulars of the possible non-compliance; and
(b) stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
…
(ii) if the holder accepts that there was non-compliance:
(A) give reasons for the non-compliance; and
(B) shows cause why the visa should not be cancelled…
…
Section 108 of the Act provided that:
Decision about non-compliance
The Minister is to:
(a) consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b) decide whether there was non-compliance by the visa holder in the way described in the notice.
Section 109 of the Act provided that:
Cancellation of visa if information incorrect
(1) The Minister, after:
(a) deciding under section 108 that there was non-compliance by the holder of a visa; and
(b) considering any response to the notice about the non-compliance given in a way required by paragraph 107(1)(b); and
(c) having regard to any prescribed circumstances;
may cancel the visa.
…
GROUND 1
The first ground of review in the application is:
The Tribunal failed to consider the legal consequences of its decision, being that the application of ss 189, 196 and 198 of the Migration Act 1958 (Act) to the Applicant meant that the Applicant would face detention for a period of uncertain duration;
Particulars
(a)A legal consequence of cancellation of the Applicant’s visa by the Tribunal was to render him liable to detention for a period of uncertain duration pending removal.
(b) It was not reasonably practicable to remove the Applicant, as the Applicant maintained before the Tribunal (Decision, [61]) that he would not return to Iran voluntarily, and Iran did not accept involuntary returnees in the position of the Applicant (Decision, [58]).
(c) It was impliedly accepted by the Tribunal that the Applicant would continue to ‘refuse’ to return voluntarily to Iran or, alternatively, the Tribunal made no finding that the Applicant would return voluntarily: Decision, [61].
(d) The Tribunal did not consider the prospect of detention for a period of uncertain duration as a legal consequence of its decision, reasoning instead that ‘indefinite detention is not the immediate consequence of the cancelling of his visa but rather his refusal to depart Australia’: Decision, [61].
As a matter of fact, the applicant was not in detention at the time of the hearing before this court. He was sitting in the well of the court, observing the hearing. He was not in community detention. Under the Act, as a person without a visa, the applicant ought to have been taken into detention. That had not happened as at the time of the hearing before this court. Nevertheless, the applicant could be taken into detention at any time.
The Tribunal was aware of its obligation to consider indefinite detention. The Tribunal said at paragraph 13 of its reasons for decision that:
PAM3 requires delegates to consider three additional matters in exercising their discretion to cancel a visa under s.109 of the Act. These are: whether there are persons in Australia whose visa would, or may, be automatically cancelled under s.140 of the Act as a result of the cancellation; whether the visa cancellation may result in Australia breaching its international obligations; whether there are mandatory legal consequences resulting from the cancellation such as indefinite detention, the applicant becoming an unlawful non-citizen and a bar to applying for any other visa. (emphasis added)
The Tribunal considered the question of indefinite detention at paragraph 61 of its reasons for decision, which is as follows:
The applicant maintains that he would not voluntarily return to Iran and as such the consequence of cancelling his visa would be that he would be subject to indefinite immigration detention. The Tribunal notes that given that he is able to enter and reside in [Iran] by reason of his Iranian passport indefinite detention is not the immediate consequence of the cancelling of his visa but rather his refusal to depart Australia in which he has no legal right to stay. (emphasis added)
The Tribunal then considered all three of the issues it had identified in paragraph 13 of its reasons for decision, saying in paragraph 62 of its reasons for decision that:
In summary the Tribunal, having considered the applicant’s response to the s.107 notice and taking into account the prescribed circumstances and other circumstances as set out in the PAM3 is of the view that the applicant’s visa should be cancelled. This is because the incorrect information he provided is significant in determining protection visas. He maintained this incorrect information over a considerable period of time. Further once obtaining a protection visa he clarified his citizenship status, acquired an Iranian passport (which he claimed to have no entitlement to) and returned to Iran (where he claimed he feared harm). The Tribunal does not accept that the cancelling of the applicant’s visa would result in a breach of Australia’s non-refoulement obligations, nor would it result in indefinite detention of the applicant or have any flow on effect to third persons. (emphasis added)
The applicant argued that the Tribunal proceeded on the assumption that there would be no indefinite detention, and therefore did not consider indefinite detention as a consequence of his visa cancellation.
The applicant noted that the High Court said in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 97 ALJR 1005; [2023] HCA 37 at [55] that:
For the reasons already given, expressing the constitutionally permissible period of executive detention of an alien who has failed to obtain permission to remain in Australia as coming to an end when there is no real prospect of removal of the alien from Australia becoming practicable in the reasonably foreseeable future follows directly from the principle in Lim. This is the appropriate expression of the applicable constitutional limitation under a statutory scheme where there is an enforceable duty to remove an alien from Australia as soon as reasonably practicable.
The applicant also noted DLJ18 v Minister for Home Affairs (2019) 273 FCR 66; [2019] FCAFC 236 at [5], where Flick J said:
… As a process of statutory construction, the legal consequences of the decision presently made by the Minister were matters that were required to be taken into account ... the decision in NBMZ and the Migration Act itself do not permit a process of statutory construction which permits a conclusion that some legal consequences of a decision can be characterised as lacking “legal proximity or … practical immediacy …”. The process of statutory construction does not permit of some consequences being more immediate than others.
Similarly, at [27] of DLJ18, Bromberg J said:
It seems to me … that the correct approach to determining whether a sufficient nexus exists to support an inference that a particular legal consequence is a mandatory consideration, is not concerned with questions of “practical immediacy”. What is required is an assessment of whether the particular legal consequence flows from the statutory framework which the decision-maker must have regard to. The bounds or ambit of that statutory framework are to be assessed by reference to the subject-matter, scope and purpose of the statute in question.
The applicant said that the Tribunal failed to consider indefinite detention as a consequence of the visa cancellation because it considered indefinite detention to be a consequence of the applicant’s refusal to leave Australia.
The Minister submitted that the Tribunal patently considered whether the applicant’s visa cancellation would have the consequence for him of indefinite detention and found, contrary to the applicant’s submissions, that the visa cancellation would not have the consequence of indefinite detention. That was because the Tribunal said in paragraph 61 of its reasons for decision that:
The applicant maintains that he would not voluntarily return to Iran and as such the consequence of cancelling his visa would be that he would be subject to indefinite immigration detention. The Tribunal notes that given that he is able to enter and reside in [Iran] by reason of his Iranian passport indefinite detention is not the immediate consequence of the cancelling of his visa but rather his refusal to depart Australia in which he has no legal right to stay. (emphasis added)
The Minister emphasised that the applicant was not in the category of stateless Iranians who could not be deported because Iran would not accept them. The applicant, on his own admission, is not stateless. He is an Iranian citizen. As such, the Minister submitted, the applicant can be deported to Iran.
The Minister submitted that DLJ18 used the concept of “immediate consequences” in a different context to the way the Tribunal used that concept in the present case. In DLJ18, the appellant submitted that the Minister had failed to consider whether, as a consequence of his decision, the appellant would be unable to return to Australia. The court at first instance held that the Minister had failed to consider that issue, but also held that it was not a jurisdictional error because it lacked “legal proximity” or “practical immediacy”.
In the words of the headnote, Flick and Bromberg JJ held that:
Whether particular legal consequences flowing from a decision have sufficient practical immediacy is not relevant to determining whether those consequences constitute mandatory considerations.
In the present case, the Tribunal accepted that whether a consequence of the applicant’s visa cancellation would result in indefinite detention was a mandatory consideration. That is unlike DLJ18, as the position was understood at first instance. If the Tribunal in the present case had made an analogous decision to the Minister’s decision in DLJ18, as it was understood at first instance, the Tribunal would have found that indefinite detention was not a mandatory consideration. That is because, in effect, the Minister found in DLJ18, as it was understood at first instance, that being unable to return to Australia was not a mandatory consideration.
Ultimately, a majority in DLJ18 held that the Minister did in fact consider the consequence of the appellant being unable to return to Australia. Flick J also held in obiter that being unable to return to Australia did not have to be considered because it was a consequence of the Migration Regulations 1994 rather than the Act.
In any event, I accept the Minister’s submission that DLJ18 uses the concept of “practical immediacy” in a different context to the context that concept was used by the Tribunal. Here, the Tribunal did not use the notion of “immediate consequence” to decide whether indefinite detention was a mandatory consideration. Here, the Tribunal accepted that indefinite detention was a mandatory consideration. The Tribunal used the words “immediate consequence” to mean “actual consequence” or “direct consequence”. The word “immediate” was superfluous, and only used, in my view, for emphasis.
That is, on a fair reading of the Tribunal’s reasons for decision, it considered that the cancellation of the applicant’s visa would not have the consequence of him being indefinitely detained because he has an Iranian passport and is able to enter and reside in Iran. In reaching that conclusion, the Tribunal considered, in accordance with its obligations, whether the cancellation of the applicant’s visa would lead to him being indefinitely detained. It decided that it would not, because the applicant has a right to enter and reside in Iran.
This ground is not made out.
GROUND 2
The second ground of review in the application is:
Further or alternatively, it failed to provide a meaningful hearing on the ‘issues arising in relation to the decision under review’ as required by s 425 of the Act, in that it considered and gave significant weight to information contained in a DFAT report dated 7 June 2018, without giving the Applicant an opportunity to be heard on that information insofar as it related to the ‘issues arising in relation to the decision under review’.
Particulars
(a) The Tribunal had regard to and placed significant weight on information contained in the DFAT Country Information Report on Iran dated 7 June 2018 (2018 DFAT Report).
(b) The 2018 DFAT Report was published after both the Tribunal hearing on 24 April 2018 and the Applicant’s post-hearing submissions dated 27 May 2018 (Court Book 328 - 334).
(c) The Tribunal failed to provide a meaningful hearing on the following ‘issues arising in relation to the decision under review’:
i.in respect of the Applicant’s claim to fear harm by reason of his use of social media, the question of the attitude of Iranian authorities to social media comments critical of the government (Decision [56]); and/or
ii. in respect of the Applicant’s claim to fear harm as a failed asylum seeker, whether Iran accepts involuntary returnees in the circumstances of the Applicant, and the treatment of such returnees, in the context of and/or following the signing of the Memorandum of Understanding signed between Australia and Iran (the MOU) that was described in the 2018 DFAT Report as facilitating the return of Iranians to Iran (Decision [58]); and/or
iii. in respect of the Applicant’s claim to fear harm by reason of his participation in the ‘Green Movement’, the question of the likelihood that those arrested at the time for participating in the protests would face continuing surveillance or harassment (Decision [55]).
The particular paragraphs of the Tribunal’s reasons for decision that this ground refers to are as follows:
55.In terms of the applicant’s participation in the Green Movement demonstrations the Tribunal notes and accepts the relevant country Information from [2018] DFAT which sets out the following:
3.59 It is difficult to estimate how many of those arrested during the Green Movement protests remain in prison. Given the period of time that has elapsed, DFAT assesses it would be highly unlikely that those arrested at the time for simply participating in the protests would remain imprisoned, or would face continuing surveillance or harassment, including being prevented from accessing employment in either the public or private sector.
56. In terms of the applicant’s claim to fear harm by reason of his use of social media to criticise the government the Tribunal notes and accept the following observations in the [2018] DFAT report:
5.25 According to international observers, Iranian authorities pay little attention to failed asylum seekers on their return to Iran. Iranians have left the country in large numbers since the 1979 revolution, and authorities accept that many will seek to live and work overseas for economic reasons. International observers report that Iranian authorities have little interest in prosecuting failed asylum seekers for activities conducted outside Iran, including in relation to protection claims. This includes posting social media comments critical of the government – heavy internet filtering means most Iranians will never see them – converting to Christianity, or engaging in LGBTI activities. In such cases the risk profile for the individual will be the same as for any other person in Iran within that category. Those with an existing high profile may face a higher risk of coming to official attention on return to Iran, particularly political activists.
…
58. The Tribunal does not accept that the applicant would face serious or significant harm as a returnee. The DFAT report of June 2018 provides the following relevant information on the treatment of returnees:
Iran has historically refused to issue travel documents (laisser passers) to allow the involuntary return of its citizens from abroad. On 19 March 2018, however, Iran and Australia signed a Memorandum of Understanding (MOU) on Consular Matters that includes an agreement by Iran to facilitate the return of Iranians who arrived after this date and who have no legal right to stay in Australia.
5.23 The International Organisation for Migration (IOM) runs a program to assist voluntary returnees to Iran, in cooperation with the country from which they are returning. Iranian authorities cooperate with the IOM in this regard. In cases where an Iranian diplomatic mission has issued temporary travel documents, authorities will be forewarned of the person’s imminent return. Authorities will usually question a voluntary returnee on return only if they have already come to official attention, such as by committing a crime in Iran before departing. DFAT is not aware of any legislative or social barriers to voluntary returnees finding work or shelter in Iran, nor any specific barriers to prevent voluntary returnees from returning to their home region.
In his written submissions filed on 16 October 2023, the applicant said in relation to this ground:
25. The Tribunal was obliged, pursuant to s 425 of the Act, to conduct a hearing ‘relating to the issues arising in relation to the decision under review’.
26. In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (SZBEL)41, the High Court explained the obligations imposed on the Tribunal by s 425 of the Act as follows:
[35] The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are "the issues arising in relation to the decision under review". That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision‑maker identified as determinative against the applicant.
[36] It is also important to recognise that the invitation to an applicant to appear before the Tribunal to give evidence and make submissions is an invitation that need not be extended if the Tribunal considers that it should decide the review in the applicant's favour. Ordinarily then, as was the case here, the Tribunal will begin its interview of an applicant who has accepted the Tribunal's invitation to appear, knowing that it is not persuaded by the material already before it to decide the review in the applicant's favour. That lack of persuasion may be based on particular questions the Tribunal has about specific aspects of the material already before it; it may be based on nothing more particular than a general unease about the veracity of what is revealed in that material. But unless the Tribunal tells the applicant something different, the applicant would be entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to that decision.
27. The Tribunal had regard to and placed significant weight specifically on the country information contained in the DFAT 2018 report,42 on which the Applicant was given no opportunity to be heard either at the Tribunal hearing43 or by way of post hearing submissions. There were three issues arising from the DFAT 2018 report, which the Tribunal evidently considered determinative, but in respect of which the Applicant was not provided a meaningful hearing. In this regard, it is noted that the Delegate Decision did not refer to any of these issues arising from the DFAT 2018 report in assessing the Applicant’s non-refoulement claims.44 Each of these issues is discussed in turn.
28. First, in respect of the Applicant’s claim to fear harm by reason of his being ‘active on social media condemning the regime’, the Tribunal was ‘not satisfied that … his statements on social media do give rise to a well-founded fear of serious harm or a real risk of significant harm on his return to Iran’, ‘on the basis of country information’.45 It appears from this statement that the Tribunal accepted that the Applicant was active on social media condemning the regime. However, based on information in the DFAT 2018 report on the apparent current lack of interest of Iranian authorities as to social media comments critical of the government, the Tribunal rejected the Applicant’s claim.46 He was given no real opportunity to be heard on this issue.
29. Second, in respect of the Applicant’s claim to fear harm as a failed asylum seeker, the Tribunal ‘did not accept that the applicant would face serious or significant harm as a returnee’ based on information contained in the 2018 DFAT report as to the treatment of returnees.47 The information quoted by the Tribunal included reference to a recent Memorandum of Understanding signed between Australia and Iran (the MOU) that was described in the 2018 DFAT Report as facilitating the return of Iranians to Iran.48 The question of whether Iran accepts involuntary returnees in the circumstances of the Applicant, and the treatment of such returnees, in the context of and following the signing of the MOU are issues on which the Applicant was given no opportunity to be heard.
30. Third, the Tribunal dealt with the Applicant’s claim to fear harm by reason of his participation in the ‘Green Movement’ by stating that it ‘notes and accepts the relevant country information from DFAT’.49 The Tribunal’s language, ‘his past involvement in political unrest in 2009’ and ‘[i]n terms of the applicant’s participation in the Green Movement demonstrations’, suggests that it accepted that the Applicant had in fact participated in the Green Movement demonstrations in 2009. However, it did not accept that this would put him at risk of serious or significant harm based on the information in the DFAT 2018 report that given the time that had elapsed since the Green Movement protests, DFAT assessed it as unlikely that those arrested at the time would face continuing surveillance or harassment. He was given no real opportunity to be heard on the new issues raised in the DFAT 2018 report.
31. As in SZBEL, here the Tribunal did not say anything to the Applicant that indicated the above aspects of his account were ‘live issues’, noting that the delegate’s decision was not based on these matters.50
32. The Tribunal’s focus on the issues arising from the DFAT 2018 report rendered the hearing invitation — which predated that report — ‘a hollow shell or an empty gesture’ insofar as it related to those issues51 This constituted a failure to afford the Applicant procedural fairness and to provide him with a meaningful hearing as required by s 425.
FN 41: (2006) 228 CLR 152.
FN 42: See AAT decision at [49], [55], [56], [58].
FN 43: See transcript of AAT hearing, Annexure 1 to Mason affidavit.
FN 44: The Delegate Decision essentially adopted the findings of the ITOA assessment: see Delegate Decision at [30]-[31], CB 243.
FN 45:AAT decision at [54].
FN 46:AAT decision at [56].
FN 47:AAT decision at [56] and [58].
FN 48:AAT decision at [58], quoting DFAT 2018 report at [5.23]-[5.24] (the numbering of the DFAT report paragraphs in the AAT decision at [58] is incorrect).
FN 49:AAT decision at [55]. Though not stated, paragraph 3.59 that is quoted by the Tribunal in that paragraph is taken from the DFAT 2018 report.
FN 50: SZBEL at [43].
FN 51:Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 at [33].
The applicant relied particularly on Le v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 1547, which was a partner visa case. Anderson J said in that case that:
46.It is evident from the above, that the appellant’s husband’s travel records were critical to the Tribunal’s ultimate decision. It is also evident that the Tribunal took a forensic approach to analysing those international movement records, by pinpointing the appellant’s husband’s individual arrival and departure dates and, on this basis, concluding that he was not present in Australia at the time of the appellant’ surgery. This was not a matter which the appellant was on notice of, notwithstanding that she was on notice that there was an issue relating to the total amount of time she had spent with her husband.
47.Section 360 of the Act obliged the Tribunal to give the appellant a real chance to present their case: Li at [58]. The appellant was not afforded an opportunity to give evidence and present arguments in relation to her husband’s movement records and as such the Tribunal breached s 360 of the Act. Ground 2 is allowed.
In her written submissions filed on 27 October 2023, the Minister said in relation to this ground:
36. Ground 2 conflates the Tribunal’s obligation to provide a meaningful opportunity to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review (which arises from s 425 of the Act) with the requirement to invite the applicant to comment on information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review (which arises from s 424A). The two requirements are not the same and the applicant’s complaint in ground 2 should be directed to the latter.5
37. The applicant seeks to rely on s 425 to avoid s 424A by framing the information that he says should have been put to him as an ‘issue’ arising in the review. There is an important distinction between an issue and factual matters relating to a general issue.6 The Tribunal was obliged to inform the applicant of the issue, but not of each fact relating to the issue.7
38. The 2018 DFAT Report was merely an item of evidence that related to a factual issue advanced by the applicant as a reason why he was owed non-refoulement obligations and did not constitute an ‘issue’ that gave rise to obligations under s 425 of the Act.8 It follows that the applicant did not need to be put on notice of the particular information that the Tribunal proposed to rely upon. For the following reasons the applicant was on notice of the issue in relation to which the information related and was not denied a real and meaningful opportunity to be heard by the Tribunal.
The issue of the attitude of Iranian authorities to social media comments critical of the government
39. The ITOA assessor was not persuaded by the applicant’s assertion that he was active in using social media to denounce the Iranian government and Islam, or that he would be of interest to the Iranian authorities as a perceived or actual political dissident if he were to return to Iran: CB 222 [76]. The findings of the ITOA were then relied upon by the delegate: CB 243 [30]-[31]. The applicant was aware from the ITOA (as relied upon by the delegate) that his claim to fear harm based on social media use had not been accepted and was in issue. The issue of whether the applicant faced harm from the Iranian authorities because of his anti-regime social media activity was addressed in his pre-hearing submissions to the Tribunal (at CB 303); this demonstrates that the applicant was aware of the issue arising on review.
Whether Iran accepts involuntary returnees and the treatment of such returnees
40. The information cited at CB 353 [58] addressed the conditions for a variety of returnees, some of whom may be in different circumstances to the applicant. In particular, the first sentence of [5.23] of the 2018 DFAT Report addressed those who require travel documents to be issued and the second sentence addressed people who arrived in Australia after 19 March 2018. The applicant fell within neither of those categories and the DFAT information in [5.23] did not directly apply to the applicant. That particular information was therefore not information that was adverse to the applicant or determinative of the review and was not an issue that needed to be raised with him.
41. Additionally, the applicant was well aware that whether Iran accepts involuntary returnees, and the treatment of such returnees, was an issue generally arising in the review: CB 331 [2.1] and [2.3]. It was a matter that the applicant himself had put in issue as a reason why he contended that he would be involuntarily detained if his visa was cancelled: CB 318. There is an inherent contradiction in the submission that the applicant was not aware of an issue that he had put in issue.
Whether Iranian authorities had any ongoing interest in those involved in the Green Movement protests
42. The ITOA assessor was not satisfied that the applicant had actively participated in the 2009 demonstrations or that he was politically active in Iran: CB 220 [66]. The findings of the ITOA were then relied upon by the delegate: CB 243 [30]-[31]. The Iranian authorities’ interest to the applicant (if the Tribunal accepted that he had been involved in demonstrations at all) was a matter that had not been resolved in his favour by the delegate and was therefore a matter in issue before the Tribunal.
FN 5If it is the latter, then an error is not made out because the Tribunal was not required to invite an applicant to comment on information that “is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member”: s 424A(3)(a) of the Act.
FN 6 SZJUB v Minister for Immigration and Citizenship [2007] FCA 1486 at [25]; SZHKA v Minister for Immigration and Citizenship (2008) 172 FCR 1 at [103].
FN 7 Ibid.
FN 8 See by analogy ANH16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 10 at [61].
The Minister noted that, in Le, Anderson J said at [42]:
… In SZJUB, Bennett J held that, if there are factual matters that go to an issue arising in relation to the decision under review, the Tribunal is not obliged to put each of those factual matters to the appellant, only the issue itself: at [25].
The Minister distinguished Le from the present case, saying that the relevant issues were all known to the applicant, although the 2018 DFAT report consisted of new information.
The Minister also submitted that ANH16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 10 was squarely on point. In that case, Farrell J said at [61]:
Having regard to the authorities on which the Minister relied and ABV16, the 2016 DFAT report did not raise a new “issue” so as to engage the Minister’s obligations under s 425. Addressed to the “issue” – the risk of sectarian or generalised violence [in Upper Kurram] upon ANH16’s return to Pakistan – the 2016 DFAT report confirmed a trend perceived by the Tribunal from the other materials before it which had been addressed by ANH16’s representative. The 2016 DFAT report is properly to be described as going to a factual matter underlying an “issue”, rather than raising an issue of the kind addressed in ABV16.
I accept the Minister’s submissions on this ground for the reasons that she gives. Ground 2 is not made out.
CONCLUSION
As neither of the applicant’s grounds has been made out, the application must be dismissed with costs. I will hear the parties on the quantum.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Riley. Associate:
Dated: 15 May 2024
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