EER20 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 643
•7 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EER20 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 643
File number: SYG 1824 of 2024 Judgment of: JUDGE D HUMPHREYS Date of judgment: 7 May 2025 Catchwords: MIGRATION – Safe Haven Enterprise Visa – Whether the Immigration Assessment Authority (Authority) acted unreasonably, illogically or irrationally – Whether the Authority failed to exercise the power under s 473DC – Whether the Authority held the expertise or qualifications in the relevant and necessary areas – proposed grounds of judicial review have no merit – application dismissed Legislation: Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 473CB, 473DB, 473DC, 473DD(b)(i), 473DD(b)(ii),573DD(b)(i) Cases cited: ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439
BCK21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 475
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
DXG17 v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 302 FCR 313
EER20 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 17
LPDT v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 98 ALJR 610
Minister for Home Affairs v DUA16 (2020) 271 CLR 550
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
Division: Division 2 General Federal Law Number of paragraphs: 76 Date of hearing: 14 April 2025 Place: Parramatta Counsel for the Applicant: Ms Yu Solicitor for the Applicant: Ms Battison (Heretic Law) Counsel for the First Respondent: Mr Reilly Solicitor for the First Respondent: Mr Westenberg (Sparke Helmore Lawyers) Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 1824 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EER20
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
7 MAY 2025
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to read ‘Minister for Immigration and Multicultural Affairs’.
2.The application is dismissed.
3.The Applicant is to pay the First respondent’s costs fixed in the sum of $8,371.20.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order 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 D HUMPHREYS
INTRODUCTION
This is an application seeking judicial review of a decision of the Immigration Assessment Authority (“the Authority”) dated 25 June 2024, affirming a decision of a delegate of the Minister (“the delegate”) refusing to grant the applicant a Safe Haven Enterprise Visa (“SHEV”).
For the reasons set out below, the application must be dismissed.
BACKGROUND
The applicant is a citizen of Iran.
On 27 May 2013, the applicant arrived in Australia as an unauthorised maritime arrival. The applicant had an arrival interview on 21 June 2013.
On 27 September 2017, the applicant applied for a SHEV. On 2 May 2018, the delegate refused to grant the applicant a SHEV. The matter was referred to the Authority. On 19 October 2018, the Authority affirmed the delegate’s decision to refuse the applicant’s SHEV application. That first Authority decision was set aside by the Court on 27 February 2023, by way of consent orders. The matter was remitted to the Authority for reconsideration.
On 31 May 2023, the Authority made a second decision to refuse the applicant’s SHEV application. On 21 January 2024, the Court delivered judgment and made orders setting aside the second decision of the Authority and again remitting the matter back to the Authority to be determined according to the law: EER20 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 17.
On 25 June 2024, the Authority made a third decision to affirm the refusal of the applicant’s SHEV application. It is this third decision that is the current subject of judicial review.
THE IMMIGRATION ASSESSMENT AUTHORITY’S DECISION
The Authority noted that the material it had before it, given by the Secretary under s 473CB of the Migration Act 1958 (Cth) (“the Act”).
The Authority considered the various pieces of review material before it and identified the material in which it was satisfied that there were exceptional circumstances to justify considering. This included a claim made by the applicant, in his 2018 submissions to the Authority, that he feared harm from his family and the community because he had been charged with drug importation and was in remand in jail. The Authority found this new claim did not meet s 573DD(b)(i) of the Act, however given the nature of the claim, the Authority was satisfied that it was credible personal information that may have affected the consideration of the applicant’s claims if known, satisfying s 473DD(b)(ii) of the Act.
Further, the Authority also accepted, as new information, 2023 submissions made to the Authority, and the Authority was satisfied there were exceptional circumstances to justify considering the 2023 submissions. The 2023 submissions comprised of new claims about the applicant’s health, a report from Clinical Neuropsychologist and Forensic Psychologist Dr Karen Scally dated 31 January 2023 (“2023 psychologist report”), and country information regarding people with mental disabilities/conditions in Iran, all which post-date the delegate’s decision.
The applicant advanced new claims based on his alcohol dependency in his 2023 submission to the Authority. The Applicant had disclosed that he had been previously held in police custody for drinking alcohol in Iran for two days, in 2011. The Authority was satisfied that s 473DD(b)(i) of the Act was met to the extent that the claims are premised on ongoing circumstances involving alcohol consumption. The Authority was satisfied that the new claims were credible personal information that may have affected the consideration of claims. Therefore, there were exceptional circumstances to justify considering this claim.
The Authority also accepted the applicant’s new claims, provided in the 2023 submissions, including ‘new criminal conviction-related information’. This compromised of claims that the applicant faces a risk of harm by reason of having been convicted and sentenced in Australia, documents about his criminal conviction that postdate the delegate’s decision, and country information about Iranian laws and punishment in Iran regarding drug offences. The Authority held that the country information was not personal information and did not meet s 473DD(b)(ii) of the Act. The Authority found that the new claims and related documents were credible personal information that may have affected consideration of the applicant’s claims, and it was satisfied that there were exceptional circumstances to justify considering this information.
The Authority also took, as new information, documents included within the 2023 submissions, including correspondence between the applicant’s representative and the Department and the Office of the Australian Information Commission (OAIC) concerning Freedom of Information (FOI) requests made in August 2022 and May 2023, which all post-date the delegate’s decision ([21]-[22]).
The applicant made claims to the Authority in the 2023 submissions regarding the applicant’s brother’s arrest in September 2016. This is considered by the Authority at [23]-[25] of the decision. Given the nature of the claims, the Authority accepted the claims as new information, as they gave content to the existing claims made by the applicant.
The Authority declined to exercise its discretion under s 473DC(3) of the Act to hold an interview or interviews with the applicant or anyone else.
At [49] and [50], the Authority summarised the background and claims as follows:
•The applicant is an Iranian citizen. He was born into a Shia family in 1994 in Tehran. has an older brother, a younger sister, and some half-siblings.
•When he was a child, his father used to abuse him, his siblings and his mother. His parents divorced when he was eight years old. Both parents remarried. He has not had contact with his father since then. He does not know his father's second wife's name and is unsure how many children his father has with her.
•In May 2013, he left Iran with his sister and her fiancé because his brother had converted to Christianity and was trying to convert his sister. He did not experience any harm from the Iranian authorities before he left Iran, but it is dangerous to convert to Christianity in Iran and he knew his brother and sister were in danger. He tried to convince his brother to leave Iran, but he did not listen to him. He left illegally on a false passport and did not start his military service in Iran.
•After arriving in Australia, the applicant's sister converted to Christianity. He attended church with his sister and was involved in Christianity in Australia. But he has no desire to convert to Christianity. He is a non-practising Muslim.
•In 2016 his brother was arrested and imprisoned for being a Christian convert. During interrogation by the Sepah, his brother told the authorities that he and his sister were overseas. His brother's solicitor told him them that Sepah had placed their names on their watch list, and they would be arrested and imprisoned as family members of an apostate upon return.
•In January 2017 he was arrested, and in December 2019 he was convicted and sentenced to imprisonment for a criminal offence in Australia.
•Before the IAA, he claims that in 2018 his brother was temporarily released from prison but escaped and is now a fugitive; and that shortly after they left Iran his father lodged a complaint against him alleging that he kidnapped his sister and took her out of Iran without the father's permission. A number of other new claims (as noted above and discussed below) have also been made.
•The applicant fears harm because of his brother’s conversion to Christianity and escape from prison, and his sister being granted protection in Australia for her conversion to Christianity. He also fears harm because of his failure to undertake military service and because he left Iran illegally on a false passport. He fears prosecution, punishment and harm due to his Australian criminal history. He fears harm from his father because of his father’s complaint and history of abuse. Moreover, he fears harm because he practises a liberal interpretation of Islam, and because of his involvement with Christianity in Australia. Further, he fears harm because of his tattoos, alcohol consumption, and he was affected by the data breach (an inadvertent disclosure of some personal information on the Department’s website in 2014 for a brief period), and for being a returning failed asylum seeker from Australia, and because of his mental disabilities/conditions. The reasons for the harm feared have been characterised in various ways, including real and perceived religion, political opinion and membership of particular social groups (e.g. particular social group of failure asylum seekers in Iran).
At [55], the applicant claimed that he suffered from post-traumatic stress disorder (PTSD), obsessive-compulsive disorder (OCD) and cognitive impairments, and feared harm by reason of the mental disabilities/conditions. The applicant relied on the 2023 psychologist report. The report states that it was prepared for the purpose of examining the applicant’s psychological and neuropsychological functioning, and examining how any diagnosed conditions may impact on his ability to make time-sensitive decisions in the context of failing to seek review of the first decision of the authority, and failing to lodge a judicial review application in the (then) Federal Circuit Court within the statutory time period.
Among other things, the report states that the applicant was assessed over four appointments via videoconference; the applicant’s presentation and mental state were consistent across the four sessions; there was no indication of abnormality in the applicant’s psychomotor activity; the effect of the applicants mental state was normal in range and reactivity and appropriate to context; the applicant’s speech was fluent with no abnormalities; and there was no evidence of formal thought disorder.
The 2023 psychologist report stated that the applicant met the criteria for a diagnosis of chronic and complex PTSD and OCD relating to personal hygiene behaviours, which were precipitated by specific trauma in childhood, and that the obsessions and compulsions giving rise to the PTSD and OCD diagnosis had been present for 16 years. The applicant did not meet the threshold for diagnosis of a separate anxiety disorder. Dr Karen Scally stated that she did not believe the applicant suffered from an intellectual disability [58].
The Authority accepted that the applicant had been diagnosed with the aforementioned disabilities and conditions ([59]). The Authority noted that although the applicant informed the psychologist of matters regarding alcohol consumption and his brother, the applicant only informed the delegate that he had been arrested once in 2011, for drinking alcohol. The applicant did not expressly claim that he had a history of alcohol consumption or dependency on alcohol. As there is no further detail in the report about the timing, circumstances or nature of the trouble that his brother faced in Iran, the Authority gave those aspects of the claim no weight as corroborative evidence of the applicant’s claim [59]. In the 2023 submissions to the Authority, the applicant’s representative referred to the summary of the applicant’s self-reported alcohol consumption history, which the applicant reported to Dr Scally in the 2023 psychologist report ([189]). The Authority was not prepared to accept that the summary of the applicant’s alcohol consumption in the 2023 psychologist report was an accurate representation of the applicant’s alcohol dependency ([190]). The Authority considered that if the applicant had been dependent on alcohol or increased his intake of alcohol after his brother got in trouble in 2016, then the applicant would have raised these issues at the SHEV interview in 2018, rather than in the 2023 submissions by his representative.
The Authority was willing to accept that the applicant occasioned one incident where he was arrested and held in police custody for drinking alcohol but was not prepared to accept the assertions made without probative evidence that the applicant has a dependency on alcohol [191]. The Authority was also not prepared to accept the submission that it is likely that the applicant would rely on alcohol to self-medicate and manage his stress upon return to Iran, because his older brother’s issues remain unresolved ([191]).
On the evidence presented regarding the applicant’s mental conditions and impairments, the Authority was not satisfied of the following at [215]:
·That the applicant’s condition would deteriorate, or he would develop further mental disorders if he returned to Iran now or in the reasonable future.
·That the applicant’s mental disabilities/conditions would give rise to a real chance of harm or discrimination or otherwise prevent him from working or accessing basic services.
At [220], the Authority found that it was not satisfied that the applicant had ever been dependent on alcohol.
The applicant claimed to have left Iran due to fear of harm arising out of his brother’s and his sister’s conversion to Christianity [72], however the applicant’s sister’s SHEV application is markedly different, and she stated that she decided to leave Iran to avoid abuse from her father [75]. Further, the applicant made claims that his brother was arrested and imprisoned in 2016, however, the sister’s SHEV application form makes no mention of the brother’s imprisonment, rather it states that she was in contact with her older brother and mother, who live in Iran, twice a week. At [89], the Authority was not persuaded by the applicant’s sisters explanation that she was scared of causing trouble for her older brother therefore she had not mentioned her brother’s imprisonment at her SHEV interview,
At [91] the Authority concluded that the applicant’s evidence regarding his brother’s arrest and imprisonment, how he came to know about what his brother’s solicitor had told him, and the claimed ‘Sepah’ or ‘Ettelaat’ watch list that he and his sister were placed on were “generic, superficial, lacking in substance and ultimately unconvincing”.
In post interview submissions, the Authority was provided with a copy of a purported summons issued to the applicant on 19 September 2013 and another summons issued to the older brother which stated it was issued in July 2015. For the reasons it gave, at [116] the Authority considered that the purported summonses undermined the applicant’s claim and held concerns about their authenticity.
At [130], The Authority also concluded that a 2016 arrest warrant issued for the applicant’s brother did not overcome its concerns. At [129], The Authority did not accept the explanation given regarding the delay in submitting the document and considered that this raised further questions about the reliability and credibility of the applicant, as well as his sister’s and his mother’s evidence.
At [143], the Authority was not satisfied that the applicant was cut short or prevented from explaining why he left Iran. At [143], the Authority stated that it was clear that applicant understood the questions being asked to him, and that the applicant was able to answer them, despite being a young adult and not having the benefit of legal representation.
The Authority did not accept any claims made with respect to the applicant’s older brother. At [166], the Authority noted the following after having regard to the materials:
Having considered the materials, and for the reasons above, and given the concerns identified, I do not accept any of the claims in respect of the applicant’s older brother. I do not accept that the older brother has ever been involved with Christianity or converted to Christianity or perceived as such. I do not accept that the older brother was arrested, detained, imprisoned, absconded from prison, or that he has ever come to the attention of the authorities. I also reject the claim that the applicant and his sister (or either of them) were placed on any watch list, or that the applicant left Iran for the reasons claimed. I also do not accept that the father complained to the authorities against the applicant regarding their departure from Iran, or that the father contacted the sister by WhatsApp in recent times harassing her. I do not accept that the applicant’s mother was required to attend Court, or that the authorities visited, raided or monitored the family home, or asked the mother about the applicant and his siblings’ whereabouts. I do not accept that the father was an Agahi member. I consider the applicant’s mother contrived this in an attempt to bolster the applicant’s case. I also do not accept that the father has continuing influence over the Sepah. There is no credible evidence that the father harassed or harmed the applicant at any time after they ceased contact in 2002. I am not satisfied that the father has any desire to harm the applicant. I am also not satisfied that the applicant has been truthful in his evidence, and not satisfied that his sister and his mother have been truthful in their evidence provided in support of his application.
At [209], the Authority was not satisfied, on the evidence before it, that the Iranian authorities are or there is a chance of them becoming aware of the applicant’s criminal history in Australia now or in the foreseeable future.
GROUNDS OF JUDICIAL REVIEW
The applicant’s two grounds of judicial review are contained in an Originating Application filed on 29 July 2024. They are as follows (less particulars):
1.The Second Respondent (the IAA) acted unreasonably in failing to exercise the power in s.473DC(3) of the Migration Act 1958 (Cth) to get new information from either the Applicant or Dr Karen Scally.
2.The IAA’s decision was affected by illogicality and/or irrationality.
RELEVANT LEGISLATION
Section 473DC of the Act is as follows:
473DC Getting new information
(1)Subject to this Part, the Immigration Assessment Authority may, in relation to a fast-track decision, get any documents or information (new information) that:
(a) were not before the Minister when the Minister made the decision under section 65;
and
(b) the Authority considers may be relevant.
(2) The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(3) Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a) in writing; or
(b) at an interview, whether conducted in person, by telephone or in any other way.
THE APPLICANT’S SUBMISSIONS
Ground one is a complaint that the Authority failed to exercise its power to get new information from the applicant or registered psychologist. The applicant submits that it was open to the Authority to exercise the power under s 473DC(3) of the Act to contact or interview Dr Scally to ascertain the basis of her opinion that the applicant was a person who presented with alcohol dependence. This is in circumstances where the Authority placed no weight on the 2023 psychologist report as corroborative evidence that the applicant had ever been dependent on alcohol, and further, that the applicant did not face a real chance of harm and persecution for any alcohol related offences. The Authority at [47] decided that the circumstances did not warrant the exercise of the discretion under s 473DC(3) of the Act.
Reliance was placed on ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439 (“ABT17”) at [30] where the majority held that the Authority had acted unreasonably in the circumstances by failing to get and consider new information to supplement the review material so as to place themselves in a position where they could assess credibility of the applicant. Counsel for the applicant submits that, consistent with the High Court’s conclusion in ABT17, the Authority acted unreasonably in failing to exercise that power.
The Authority did not hold the expertise or qualifications in the relevant and necessary areas, neuropsychology or forensic psychology, to allow it to form an opinion as to whether the applicant was a person who presented with alcohol dependence. On this same reasoning, the Authority could not assess the credibility of the applicant as a witness for the purposes of whether this claim was to be believed. The reasons of the Authority do not represent an “intelligible justification” for its failure to exercise the power in s 473DC(3) of the Act: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (“Li”) at [76].
Ground two complains that the Authority’s findings on the applicant’s cognitive impairment and alcohol dependency were illogical and/or irrational.
The applicant submits that the Authority erred by making findings at paragraphs [24]-[25] and [59] of its decision finding that on the basis of the psychologist’s report, the applicant had cognitive impairment, but did not accept that he had memory issues. Further, the Authority at [59] purported to attribute the cognitive impairment on the applicant’s childhood traumas and not his alcohol dependency or consumption. The Authority’s findings lacked logical connection to the evidence and alternatively were not open to the evidence before it for three reasons.
Firstly, that at [50] of the 2023 psychologist report, Dr Scally did not observe that the applicant’s cognitive impairment was caused solely by the childhood traumas, however a fair reading of the report indicates that the only conclusions open on the evidence was that the applicant’s cognitive impairment had many likely causes. At [50], the report states:
From information provided in background documents and clinical interview, [the Applicant] has several predisposing and precipitating risk factors for poor neurodevelopment and later emergence of psychopathology and cognitive impairment. These include predisposing factors such as in-utero health concerns, prolonged psychological and physical abuse, delayed speech onset, learning difficulties, parental abandonment, poverty, lack of education, early significant alcohol use prior to brain maturation and continued exposure to trauma.
These included but were not limited to: ‘early significant alcohol use prior to brain maturation and continued exposure to trauma.’ Based on this, it was not open to the Authority to find that the cognitive impairment was limited only to traumas or any one cause. The applicant’s claimed alcohol dependency and consumption could not be ruled out with the level of certainty that the Authority purported to at [220]. In a similar vein, the Authority could not find that there was ‘no probative evidence’ of the applicant’s claims given that the evidence existed in the form of an expert opinion contained in the 2023 psychologist report of Dr Scally.
Secondly, as opposed to Dr Scally’s conclusions in the 2023 psychologist report, which were supported by her expertise in the field of neuropsychology and/or forensic psychology, the Authority Reviewer undertaking the merits review did not possess this same expertise and did not hold qualifications in those fields. Therefore, without such expertise or qualifications, the Authority could not have logically or rationally come to a different view to Dr Scally on the applicant’s cognitive impairment where the medical issue in contention is within the domain of an expert in Dr Scally’s position.
Thirdly, Dr Scally conducted assessments on the applicant over four separate days. The Authority did not conduct any such interview or examination of the applicant as it declined to exercise its power under s 473DC of the Act. In those circumstances, the Authority did not have a logical or rational foundation to depart from Dr Scally’s observations and conclusions.
The applicant submitted that if the Court is satisfied that unreasonableness is made out, as alleged by ground one, then it is not necessary for the Cour to separately examine the issue of materiality, as the nature of such an error necessarily meets the requirement of materiality: LPDT v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 98 ALJR 610 (“LPDT”) at [6].
In the alternative, if the Court is satisfied that the applicant should succeed based on ground two, then this error should meet the threshold of materiality observed by the High Court in LPDT at [16]. This is in circumstances where the error infected a critical aspect of the Authority’s consideration of the applicant’s claims and is relevant to the question of whether het me the criteria as prescribed in s 36(2)(a) or (aa) of the Act.
THE FIRST RESPONDENT’S SUBMISSIONS
As to ground one, the first respondent contends that Dr Scally did not provide an opinion that the applicant was a person who presented with alcohol dependency as submitted by the applicant. Rather, Dr Scally’s report referred to the applicant’s self-reported alcohol dependency since he was a child, and that the applicant’s coping mechanisms had been “smoking tobacco, drinking significant amounts of alcohol, and engaging in cleaning and anti-contamination behaviour”. The Authority noted at [59] that the 2023 psychologist report simply records what the applicant had told her (Dr Karen), and that the applicant has not suggested that this is inaccurate. The Authority gave the report no weight in proving the applicant’s claims concerning alcohol dependency. It was open to the Authority to attribute the appropriate weight to the matter: Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [33].
For legal unreasonableness to be made out, a high threshold must be met, and regard must be had to the statutory context: Minister for Home Affairs v DUA16 (2020) 271 CLR 550 (“DUA16”) at [26-27], [34].
The Authority made its decision “on the papers” without interviewing the applicant, as provided for by s 473DB(1) of the Act and did not have a duty to get new information as per s 473DC(2) of the Act. Accordingly, the circumstances in which the Authority will be held to have unreasonably failed to exercise its power under s 473DC(1) of the Act to get new information requires a high threshold: DUA16 at [26-27], [34]; DXG17 v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 302 FCR 313 at [52].
In the circumstances of this case, there was no reason or obligation for the Authority to seek further information from Dr Karen after having accepted her report as new information. The first respondent distinguishes the current case from ABT17, as the Authority’s decision in that case was marred with jurisdictional error where they had rejected a claim that had been accepted by the delegate wholly or partly on the applicant’s demeanour without inviting the applicant to an interview [256]. The applicant’s circumstances differ here as the claim to alcohol dependency and consumption was only raised in the 2023 submissions to the Authority, several years after the delegate’s decision. The applicant was also legally represented and had made extensive submissions before the delegate.
By ground two, the applicant claims that the only finding open to the Authority was that the applicant’s cognitive impairments were caused, at least in part, by early significant alcohol use. It was not irrational that the Authority accepted that the applicant’s cognitive issues were due to childhood trauma, but not alcohol use. Dr Scally’s report did not indicate or suggest that the applicant’s cognitive impairments could only have been caused in whole or part by early alcohol use, as opposed to childhood trauma. Having rejected the applicant’s claims concerning his history with alcohol as contrived [190], the Authority was accordingly entitled to accept that he had cognitive impairments, but for the reasons of childhood trauma that the applicant had detailed to Dr Scally.
It is submitted that even if reasonable minds differed as to the Authority’s reasoning, this would not rise to establish legal unreasonableness: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [78], [130-131].
CONSIDERATION
In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17], the task of a court conducting judicial review was described in this manner:
… An application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the executive branch of government, here in the form of a decision of the Minister. The court does not consider the merits or wisdom the decision; nor does it remake the decision. The task of the court is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.
In BCK21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 475 at [19], Abraham J said the following:
It is first appropriate to recall that a Tribunal’s reasons should be read fairly, and as a whole. The Tribunal’s reasons should not be construed minutely, with an eye keenly attuned to the perception of error: Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280 at 287; Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-272; Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 400 ALR 417 at [38].
It is well established that the Authority is not required to accept uncritically any and all claims made by an applicant: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at [451].
Nor does the Authority have to possess rebutting evidence before holding that a particular assertion was not made out: Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348.
Unreasonableness is where a decision-maker has come to a conclusion so unreasonable that no reasonable decision-maker could have come to it: Li at [28], or where a decision has been made that lacks an “evident and intelligible justification”; Li at [76]. The test for unreasonableness is “stringent” and will only arise in rare cases. Unreasonableness is not a means for challenging a decision on the basis that the Court disagrees with the consideration of matters or the evaluative judgements made by the decision-maker: Li at [30], [113].
In Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 at [11], Allsop CJ said the following concerning a review of a decision for legal unreasonableness:
The task is not definitional but one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, insufficiently lacking rational a foundation, or an evident or intelligible justification, or in being plainly unjust arbitrary capricious or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as to the exercise of that power. The descriptions of a lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of power.
First, it is worth noting that this is the third time a decision of the Authority in respect of this applicant has been the subject of judicial review. The Authority first considered this matter in 2018, and some seven years later the matter has still not resolved. This is a testament to the complex and difficult nature of this area of law.
Second, the Court notes that the Authority’s decision comprises some 231 paragraphs set out over 52 pages. It is the most detailed, comprehensive and lengthy decision the Court has been required to consider in the context of a judicial review application.
Paragraphs [4] – [48] of the Authority’s decision set out, in some detail, a significant amount of additional material that was placed before the third Authority to consider. The Court notes that the Authority accepted the bulk of this information, including at [13] – [17] new health information in the form of the 2023 psychologist report. The Court has read and considered that report in detail.
That report is used to advance a new claim of the applicant suffering from alcohol dependency, and that he fears persecution and harm because of his future alcohol consumption and possession if returned to Iran, noting that alcohol is officially banned in Iran.
Ground One
Ground one is a claim that the Authority acted unreasonably by failing to exercise the power under s 473DC of the Act to contact or interview Dr Scally, to ascertain the basis for her opinion that the applicant was a person who presented with alcohol dependence.
At [59] of the Authority’s decision, it is submitted that the Authority did not possess the qualifications or experience to place no weight on Dr Scally’s opinion that the applicant had a history of alcohol consumption or alcohol dependence. Nor could it properly assess the applicant’s credibility as to whether this claim of alcohol dependence should be believed.
In considering this claim, the Court is mindful of the exhortation contained within s 473DB of the Act that the Authority should conduct its review without accepting or requesting new information, as per s 473DC(1)(a) of the Act, and without interviewing any person, as per s 473DB(1)(b) of the Act. Further s 473DC(2) of the Act states the Authority does not have a duty to get, request or accept any new information.
It is well accepted that the power to obtain new information, including interviewing Dr Scally must be exercised ‘reasonably’: ABT17 at [3].
In reading Dr Scally’s report at [20] – [21], she sets out the applicant’s history of alcohol usage based on the applicant’s self-reporting of his history of alcohol consumption. At [47] of her report, based on Dr Scally’s interviews and testing of the applicant, she found the applicant meets the criteria for PTSD and OCD. Significantly, the Court notes Dr Scally does not make a diagnosis of alcohol abuse or alcohol dependence.
At [50], Dr Scally sets out several pre-disposing and precipitating factors for these disorders including ‘early significant alcohol use prior to brain maturation’. There is no attribution of the cause of the applicant’s disorders to any one or any particular number of those risk factors. Dr Scally simply lists all possible risk factors that apply to the applicant.
At [57] of her report, Dr Scally notes that the applicant’s only coping mechanisms to date have been ‘smoking tobacco, drinking significant amounts of alcohol and engaging in cleaning and anti-contamination behaviour’, however it is noted that the applicant has been unable to self-medicate with alcohol since being either incarcerated or in immigration detention. Dr Scally postulates that the applicant has experienced an increase in distress relating to his PTSD symptoms and current circumstances due to being unable to self-medicate.
The applicant’s complaint is that at [59] of the Authority’s decision, the Authority placed no weight on Dr Scally’s report in respect of the applicant’s history of alcohol consumption. However, the Authority did accept that the applicant has PTSD and OCD.
The Authority reasoned that the report only recorded the applicant’s own history of alcohol consumption and did not have any supporting evidence as to his version of events. Further, the Authority noted that other than disclosing to the delegate he was arrested once for drinking alcohol, the applicant had not claimed, at the primary level, he had a history of alcohol consumption and a dependency on alcohol.
The Court does not accept that the Authority acted in an unreasonable manner in not seeking further information or interviewing Dr Scally. Dr Scally’s report spoke for itself. It did not require clarification, given that no diagnosis of alcohol abuse or dependence was made. It was within the legitimate decisional freedom of the Authority to place no weight on the report insofar as it only recorded the self-reporting of the applicant’s use of alcohol. As a matter of fact, the Authority was entitled to reject that aspect of her report without further action. Ground one has no merit.
Ground Two
Ground two is a complaint that the findings of the Authority as to the applicant’s cognitive impairment and alcohol dependency were illogical and irrational.
Again, a close reading of Dr Scally’s report does not provide a diagnosis of alcohol dependence or alcohol abuse. However, the Authority accepts at [59] of its decision that the applicant does suffer from cognitive impairment.
Dr Scally’s report at [50] sets out a range of possible predisposing and risk factors, that may have contributed to the applicant’s poor neurodevelopment and later emergence of psychopathology and cognitive impairment, however no particular factor or factors is/are singled out as the cause of these issues with the applicant.
The complaint that the applicant’s dependence on alcohol at [220], of the Authority’s decision, could not be ruled out does not correlate with a fair reading of the entirety of that paragraph. While finding that the applicant is not dependent on alcohol, the Authority noted that on the applicant’s claims he was only caught drinking once in Iran. Further, country information indicates that alcohol consumption is widespread in Iran and that, in practice, prosecutions for drinking are not common, and are resolved with the payment of a fine or a bribe.
It was on this basis that the Authority found that the applicant was not at risk of serious harm if returned to Iran. That is, even if he did drink, he was not likely to be at risk of harm. For the reasons the Court set out above in Ground one, it was open for the Authority to find that the applicant was not dependent upon alcohol, and the Authority did not misread or misinterpret the 2023 psychologist report.
Ground two has no merit.
DETERMINATION
As neither of the grounds of judicial review has merit, the application must be dismissed.
I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 7 May 2025
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