Eer20 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 17
•17 January 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EER20 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 17
File number(s): SYG 1038 of 2023 Judgment of: JUDGE LAING Date of judgment: 17 January 2024 Catchwords: MIGRATION - application for judicial review of a decision by the Immigration Assessment Authority (“IAA”) – whether the IAA unreasonably declined to exercise, or unreasonably failed to consider exercising, its powers under s 473DC of the Migration Act 1958 (Cth) – whether the IAA committed an error of law and/or acted in a legally unreasonable manner in considering the applicant’s claims regarding evasion of military service – application succeeds Legislation: Migration Act 1958 (Cth) ss 473DC & 473DD Cases cited: ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; (2020) 269 CLR 439
AYX17 v Minister for Immigration and Border Protection [2018] FCAFC 103; (2018) 262 FCR 317
BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 93 ALJR 1091
BYA17 v Minister for Immigration and Border Protection [2019] FCAFC 44; (2019) 269 FCR 94
Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19; (2000) 201 CLR 293
DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175
DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12; (2018) 258 FCR 551
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611
Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173
Division: Division 2 General Federal Law Number of paragraphs: 53 Date of last submission/s: 18 December 2023 Date of hearing: 8 December 2023 Place: Sydney Counsel for the Applicant: Mr O R Jones Solicitor for the Applicant: Human Rights for All Counsel for the First Respondent: Mr G Johnson Solicitor for the First Respondent: Sparke Helmore Lawyers Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 1038 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EER20
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
17 JANUARY 2024
THE COURT ORDERS THAT:
1.A writ of certiorari issue directed to the second respondent quashing the decision of the second respondent dated 31 May 2023.
2.A writ of mandamus issue directed to the second respondent requiring it to determine the review of the decision of a delegate of the first respondent dated 2 May 2018 according to law.
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 LAING:
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (IAA). The IAA affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Safe Haven Enterprise (Class XE) (Subclass 790) visa (protection visa).
BACKGROUND
The applicant is a citizen of Iran who came to Australia as an unauthorised maritime arrival in 2013.
The applicant applied for a protection visa on 27 September 2017.
On 2 May 2018, the Delegate refused the application. The matter was then referred to the IAA for review.
On 19 October 2018, the IAA affirmed the Delegate’s decision. However, the IAA’s decision was set aside by consent orders made on 27 February 2023.
The IAA, differently constituted, affirmed the Delegate’s decision on 31 May 2023. That decision of the IAA is the subject of the review application in these proceedings.
THE IAA’S DECISION
The IAA summarised a substantial volume of new information that had been received from the applicant’s representatives. For the most part, the IAA accepted that the requirements of s 473DD of the Migration Act 1958 (Cth) (Act) were met in relation to the new information. This included certain information relating to the consequences of the applicant’s criminal history, mental conditions, alcohol dependency and family situation, as well as a large number of country information reports that post-dated the Delegate’s decision (at [14]-[55]). The IAA also obtained, pursuant to s 473DC of the Act, new information relating to the applicant’s sister’s protection visa application. The IAA found that the requirements of s 473DD were met in relation to that information (at [13]).
The IAA was not satisfied that s 473DD was met in relation to certain information, such as a 2018 report on Iran, evidence of travel to Thailand by the applicant’s mother and sister, evidence of the applicant and his sister’s participation in Christian activities in Australia, a claim (without supporting evidence) that the applicant’s activities had been shared on social media, evidence regarding the applicant’s mother’s personal circumstances and former marriage, and decisions made by otherwise constituted Tribunals (at [16], [37], [40]-[41], [44]-[46] and [52]-[53]). The IAA’s conclusions in this regard were, at least in part, based upon what it considered to be the limited probative value of this information within the context of what the IAA was required to decide.
At [48]-[50], the IAA assessed the applicant’s request for an interview and stated the following:
48.In his new statement the applicant requested an interview from the IAA if the IAA doubted any aspect of his new statement or any other testimonies made prior for all interested parties.
49.The legislative framework governing the IAA provides for an exhaustive statement of the natural justice hearing rule. Pursuant to s.473DB(1) of the Act the IAA must review a fast track reviewable decision referred to it under s.473CA by considering the review material provided to the IAA under s.473CB without accepting or requesting new information and without interviewing the referred applicant. This is subject to other provisions of Part 7AA. Pursuant to s.473DC the IAA may get, request or accept ‘new information’ but is under no duty to do so whether requested to do so by a referred applicant, by any other person, or in any other circumstances. This discretionary power must be exercised reasonably having regard to the IAA’s statutory framework and all the circumstances of each case. If the IAA decides to get or accept new information, it can only consider that information in exceptional circumstances.
50.The applicant has put forward a considerable amount of new information that I have assessed in accordance with s.473DD of the Act and, having regard to the statutory framework, I am not satisfied, in the circumstances of this application, that an interview is warranted.
The IAA made the following findings in relation to the applicant’s claims:
(a)Identity: The IAA was satisfied that the applicant was a citizen of Iran (at [59]-[60]).
(b)Mental health: The IAA accepted that the applicant had been diagnosed with complex and chronic PTSD and trauma related OCD, and had significant cognitive impairment. However, having regard to limitations in the material before it, the applicant’s circumstances and country information, the IAA was not satisfied that the applicant would face a real chance of harm in Iran on the basis of his mental health conditions or disabilities (at [61]-[71]).
(c)Brother’s Christian conversion: Based upon inconsistencies and other difficulties that the IAA identified in the evidence before it, the IAA was unwilling to accept the applicant’s claims regarding his brother’s conversion to Christianity, arrest and status as a fugitive. The IAA was not satisfied that the applicant faced a real chance of relevant harm in relation to those claims (at [72]-[110] and [190]).
(d)Outstanding military service obligations and illegal departure: The IAA did not accept that the applicant had outstanding military service obligations. The IAA was satisfied that the applicant was exempt from military service because his brother was serving when the applicant came of military age. The IAA was satisfied that the applicant left on a genuine passport and didn’t accept that he left on a false passport (at [111]-[123]).
(e)Father’s complaint to the authorities: The IAA accepted that the applicant’s father was abusive and that he had worked for Sepah many years ago. However, based upon difficulties that it identified in the evidence before it, the IAA did not accept claims that the father had continued to harass the applicant and his siblings, or that the father had lodged a complaint with the authorities. The IAA was not satisfied that the applicant faced a real chance of harm in Iran from his father (at [124]-[142]).
(f)Sister’s Christian conversion: The IAA accepted that the applicant’s sister converted to Christianity in Australia and had been granted a protection visa on this basis. The IAA accepted that the applicant had attended church for a year. However, the IAA did not accept that the applicant had ‘embraced’ Christianity. The IAA accepted that the applicant was still a Muslim but did not believe in fasting and daily prayer. The IAA was not satisfied that there was a real chance of the Iranian authorities or community finding out about the sister’s conversion or status in Australia, or the applicant’s Christian activities. The IAA was not satisfied that the applicant would face a real chance of harm on this basis (at [143]-[150]).
(g)Alcohol consumption: Whilst the IAA accepted that the applicant had been detained for two days some years ago for drinking alcohol, it did not accept that he would face a real chance of harm in Iran relating to this incident. Having regard to country information and the solitary nature of the applicant’s claimed drinking practices, the IAA was not satisfied that there was a real chance of the applicant being prosecuted for alcohol offences in Iran (at [151]-[154]).
(h)Religious opinion: The IAA was not satisfied that the applicant faced a real chance of harm in Iran because of his religious opinions or practices. This was in circumstances where there was no evidence that the applicant wished to promote his opinions or practices and country information indicated that non-practising Muslims faced a low risk of discrimination (at [155]-[159]).
(i)Political opinion: The IAA was prepared to accept that the applicant had a political opinion against the Iranian regime. However, in the absence of evidence indicating that the applicant desired to voice that opinion publicly, the IAA was not satisfied that he faced a real chance of harm on this basis (at [160]-[161]).
(j)Tattoos: Based upon available country information, the IAA was not satisfied that the applicant faced a real chance of harm on account of his tattoos (at [162]).
(k)Criminal history: The IAA was not satisfied that the Iranian authorities or community were aware of the applicant’s criminal history in Australia or that they would find out about this in the foreseeable future. The IAA was not satisfied that the applicant would face a real chance of prosecution or any other harm in Iran regarding his criminal history in Australia (at [163]-[175]).
(l)Failed asylum seeker from a western country: The IAA accepted that the applicant may have been affected by the inadvertent disclosure of certain personal information by the Department. It accepted that he may face brief questioning in Iran due to the manner of his return. However, having regard to available country information, the IAA was not satisfied that the applicant would attract the adverse attention of the Iranian authorities or that he would face a real chance of harm as a returned failed asylum seeker from a western country (at [176]-[184]).
Based upon the above, the IAA concluded that the applicant was not a person to whom protection obligations were owed. Accordingly, the IAA affirmed the Delegate’s decision (at [185]-[193]).
PROCEEDINGS BEFORE THIS COURT
The applicant commenced these proceedings through an application filed on 28 June 2023. The applicant ultimately relied upon the following grounds in an amended application attached to submissions filed on 17 November 2023:
1.The Authority acted in a legally unreasonable manner in not conducting an interview with Applicant in relation to his protection claims pursuant to its powers in s 473DC(3) of the Migration Act 1958 (Cth).
Particulars
(a)The Authority determined at [50] of its Decision that it was not satisfied that an interview with the Applicant was warranted. The only explanation offered for this conclusion was that the Applicant had “put forward a considerable amount of new information that I have assessed in accordance with s.473DD of the Act”. That explanation did not provide an evident or intelligible justification for refusing to exercise the power in s 473DC(3) of the Act to invite the applicant for interview.
(b)Review by the Authority is intended to be “fast track review”: s 473BA of the Act. However, the Authority’s decision in the present case was made more than 5 years after the Applicant was interviewed by a delegate of the Department. In refusing to conduct an interview, the Authority failed to consider this matter.
(c)Review by the Authority is generally intended to be on the same material as was before the delegate of the Department pursuant to s 473DB(1) of the Act. However, the material before the Authority was significantly different to that which was before the delegate. The Applicant did not have the opportunity of an interview in relation to that material. In refusing to conduct an interview, the Authority failed to consider this matter.
(d)The Authority made a different decision to the delegate on matters relating to the credibility of the Applicant, in particular the Applicant’s claim that he had avoided military service by leaving Iran (which was addressed at [123] by the Authority and at p. 8 of the decision of the delegate). In refusing to conduct an interview, the Authority failed to consider this matter.
(e)Pursuant to Forensic Psychological and Neuropsychological Assessment Report dated 31 January 2023 the Applicant scored in the borderline to extremely low categories in regard to attention, working memory, processing speed, perceptual reasoning skills, delayed recall, and met the criteria for a diagnosis of chronic and complex Post-Traumatic Stress Disorder and Obsessive-Compulsive Disorder. The Authority accepted this evidence at [62] of its Decision. However, the Authority did not take into account the fact that these conditions would have limited the Applicant’s ability to participate in the entry interview and the interview with the delegate.
(f)The Applicant’s opportunity to state his case during his entry interview on 21 June 2013 was limited by the fact that he had just arrived in Australia and was told to keep his answers “brief” (Decision, [107]). In refusing to conduct an interview, the Authority failed to consider this matter.
(g)The Applicant’s opportunity to state his case during his interview before the delegate on 18 January 2018 was limited by the fact that the delegate had to conclude the interview due to time constraints (Decision, [109]). In refusing to conduct an interview, the Authority failed to consider this matter.
2.The Authority acted in a legally unreasonable manner failing to consider whether to conduct an interview with the Applicant’s sister in relation to his protection claims pursuant to its powers in s 473DC(3) of the Migration Act 1958 (Cth).
Particulars
(a)In her statutory declaration dated 8 May 2022, the Applicant’s sister stated that if the Authority did not believe her testimony, it should look her in the eyes and hear her testimony through a formal interview before making its decision: [32] of her declaration.
(b)The Authority disbelieved various aspects of the Applicant’s sister’s evidence: Decision, [91]-[94].
(c)However, the Authority did not consider whether to conduct an interview with the Applicant’s sister.
(d)There was no evident or intelligible justification for the Authority failing to do so, and its failure was legally unreasonable.
3.The Authority committed an error of law and/or acted in a legally unreasonable manner in considering the applicant’s claims in relation to evading compulsory military service
Particulars
(a)The Applicant claimed that he left Iran without commencing his compulsory military service obligations and feared harm on return to Iran on that basis: Decision, [56], [111].
(b)The Authority rejected this claim because it concluded that the Applicant was exempt from military service obligations because his brother was serving in the military when the applicant came of military age: Decision, [123].
(c)However, the evidence before the Authority, on which it relied, made plain that the granting of an exemption was a discretionary matter for the relevant authorities. The 2020 DFAT report on which the Authority relied at [113] of its Decision stated as follows:
“3.161 Authorities can grant individual exemption from military service on several grounds. These include…having a brother currently serving in the military…
…
3.164 DFAT assesses that most – but by no means all – Iranian males will undergo military service. Obtaining an exemption from military service is possible, but depends heavily on individual and socioeconomic circumstances…” (emphasis added).
(d)There was no logical or rational basis on which the Authority could conclude that the Applicant “was exempt” from military service, as it did at [123] of the Decision.
(e)Further, and in any event, the Authority wrongly conflated the question of whether it was satisfied that the applicant “was exempt” from military service with the question of whether the applicant was exposed to a “real risk” or “real chance” of harm in relation to military service. Unless the Authority was satisfied that there was no doubt at all that the Applicant was exempt (a conclusion that the Authority did not reach and for which there was no logical or rational basis), it should have assessed the risks faced by the Applicant on the alterative basis that the Applicant was not exempt from military service. It did not do so.
4.Failure to engage in an active intellectual process or to properly consider relevant evidence or to engage in a legally reasonable process of reasoning in relation to mental health treatment
Particulars
(a)The Authority at [65] stated “There is no credible evidence the applicant will seek treatment for his mental health conditions/disabilities in the reasonably foreseeable future if he were to return to Iran and, based on the information in the psychologist report, I consider that he will not, but I am not satisfied that this will be due to a fear of persecution.”
(b)However, the Psychological Report at [10] records that “according to the IMHS [sic] records he has sought treatment for mental health difficult while in detention.”
(c)As such, evidence was before the Authority that the Applicant had sought treatment for his mental health conditions and disabilities at certain times in the past.
(d)This provided credible evidence that the Applicant would also seek treatment in the future.
Ground 4 was not pressed. The Minister did not oppose leave for the applicant to rely upon the amended application on that basis. Such leave was granted at the hearing on 8 December 2023.
Ground 1
Ground 1 contended that the IAA acted in a legally unreasonable manner in not conducting an interview with the applicant pursuant to its powers under s 473DC(3) of the Act.
The applicant requested an interview if the IAA doubted his statement or any other testimonies. Reasoning regarding why the IAA had declined to provide the applicant with an interview was provided at [48]-[50] of the IAA’s decision, which is set out above. The IAA was not satisfied that an interview was warranted, having regard to the considerable amount of new information that was before it that had not been before the Delegate, as well as the statutory scheme. These reasons were intelligible. As was observed by the IAA, the statutory scheme contemplates reviews generally taking place without the IAA requesting or accepting new information, including through the conduct of interviews. I am not satisfied that it was closed to the IAA to have reasoned that a further interview was not warranted, given the amount of material that it already had before it (and, specifically, the extent of the new information that was before it).
The applicant contended that the IAA failed to consider various matters that may have been relevant to the exercise of the discretion, including that:
(a)the IAA’s decision was made more than 5 years after the applicant’s interview with the Department;
(b)the material before the IAA was significantly different from the material that was before the Delegate, and the applicant had not had the opportunity of an interview regarding the new material;
(c)the IAA’s decision differed from the Delegate’s on matters relating to credibility, particularly regarding the applicant’s claim that he had avoided military service by leaving Iran;
(d)the conditions identified in the Forensic Psychological and Neuropsychological Assessment Report dated 31 January 2023 may have limited the applicant’s ability to participate in the entry interview and protection visa interviews;
(e)the applicant’s opportunity to state his case during his entry interview was limited by the fact that he had just arrived in Australia and was told to keep his answers “brief”; and
(f)the applicant’s opportunity to state his case during his interview before the delegate on 18 January 2018 was limited by the fact that the delegate had to conclude the interview due to time constraints.
The IAA was not obliged to give reasons for its exercise of discretion. Where reasons are not required, it can be difficult to demonstrate that a matter was not considered simply because it was not referred to in the decision maker’s reasons: see Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173 at [25]. It is not demonstrated that material was ignored simply by the fact that it was not mentioned, although inferences may be drawn from what has been said by way of explanation in the reasons for decision: see AYX17 v Minister for Immigration and Border Protection [2018] FCAFC 103; (2018) 262 FCR 317 at [61].
There are indications from elsewhere in the IAA’s decision that the IAA was generally aware of the issues or arguments relied upon by the applicant. The IAA’s introductory paragraphs set out the history of the matter, including the dates upon which the applicant had attended interviews and the Delegate had made their decision (at [1]-[6]). The IAA was aware that the material before it was significantly different from the material before the Delegate, with no interview having occurred in relation to the new material. The extent of the additional material before the IAA formed part of the IAA’s reasoning for declining a further interview (at [50]). There is no reason to suppose that the IAA was unaware that its reasoning differed from the Delegate’s, and it has not been demonstrated that any factor in this case (such as any particular reliance upon demeanour) rendered the lack of further interview legally unreasonable: cf ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; (2020) 269 CLR 439. The IAA expressed, in a later part of its decision, that it had considered the applicant’s complaints regarding the interviews (at [103]-[110]). It is apparent that the IAA was not persuaded that the applicant had been denied a reasonable opportunity to advance his case within the context of those interviews.
It has not been demonstrated that it was legally unreasonable for the IAA to have declined to grant a further interview. As was observed by the Minister, the review undertaken by the IAA occurred within a particular statutory context. The discretionary power under s 473DC is not a mechanism designed to afford traditional notions of procedural fairness to an applicant: DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12; (2018) 258 FCR 551 at [78]. That is not the correct “lens” through which the exercise of the power is to be evaluated: BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 93 ALJR 1091. Whilst another decision maker may well have exercised its discretion to allow the applicant a further interview having regard to the considerations that the applicant has relied upon, I am not persuaded that the IAA’s approach was closed to it, or otherwise met the high threshold associated with a ground of legal unreasonableness. Where probative evidence can give rise to different processes of reasoning, or if logical, rational or reasonable minds may differ in respect of the conclusions to be drawn from evidence, then a reviewing court is unable to find that a decision is illogical, irrational or unreasonable “simply because one conclusion has been preferred to another possible conclusion”: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [131] per Crennan and Bell JJ.
Having regard to the above, I am not persuaded that it has been demonstrated that the IAA acted in a legally unreasonable manner in not conducting an interview with the applicant pursuant to its powers in s 473DC of the Act.
Ground 1 is therefore unable to succeed.
Ground 2
Ground 2 contended that the IAA acted in a legally unreasonable manner by failing to consider whether to conduct an interview with the applicant’s sister pursuant to its powers under s 473DC(3) of the Act.
The applicant observed that in a statutory declaration dated 8 May 2022, the applicant’s sister stated that if the IAA did not believe her testimony, it should look her in the eyes and hear her testimony through a formal interview before making its decision. The applicant submitted that aspects of the sister’s evidence were disbelieved in the IAA’s decision, and yet the IAA did not consider whether to conduct an interview with her. The applicant contended that there was no evident or intelligible justification for the IAA failing to do so, and that the failure was legally unreasonable.
The IAA did exercise its powers under s 473DC of the Act to obtain further information regarding the applicant’s sister. The applicant was given an opportunity to provide information in response, which the applicant did including through providing his sister’s statutory declaration. There does not appear to be sufficient basis for inferring that the IAA did not consider interviewing the sister. This is not demonstrated by the non-provision of reasons regarding this issue, in the absence of any requirement that reasons be provided. As was submitted by the Minister, the IAA’s express consideration of the request that was made in relation to the applicant at [48]-[50] is explicable by reference to his particular role in the review.
In any event, I accept the Minister’s submission that it has not been demonstrated that it was legally unreasonable for the IAA not to have invited the applicant’s sister to an interview. The sister was not the fast track applicant in this matter but, rather, a family member whose information was considered by the IAA to be relevant to the applicant’s claims. Whilst her evidence was undoubtedly relevant, the IAA had information regarding the applicant’s sister from the files that it had obtained from the Department, and also that had been provided by the applicant. This included a statement from the applicant’s sister, which sought to address concerns that had been raised.
It is apparent that the IAA considered that it was able to make a decision based upon the information that was before it. This provided an intelligible justification for not inviting the applicant’s sister to an interview. This is so notwithstanding the sister’s stated consciousness of the potential consequences of giving incorrect evidence, and the credibility findings that the IAA ultimately made in relation to her evidence. I accept the Minister’s submission that, within the particular statutory context, it has not been demonstrated that it was legally unreasonable for the IAA not to have sought further information from the applicant’s sister through an interview.
In the above circumstances, I am not persuaded that the IAA unreasonably failed to consider exercising its powers under s 473DC of the Act to invite the applicant’s sister to an interview.
Ground 2 is therefore unable to succeed.
Ground 3
Ground 3 contended that the IAA erred in its reasoning regarding the applicant’s compulsory military service claims.
The IAA’s reasoning regarding the applicant’s compulsory military service claims was set out at [111] to [123] of its decision. The IAA had regard to the ability of the authorities to grant exemptions on grounds including having a brother currently serving in the military. The IAA considered that this indicated that “the applicant may have been exempt from military service as he had a brother currently serving in the military when the applicant turned 18” and that, if this were the case, it would suggest that he had no reason to leave on a false passport. The IAA considered that there was a “realistic possibility” that the applicant’s military service had been determined after his brother’s had commenced and that an exemption did apply. The IAA then reasoned as follows at [120]-[123] (footnotes omitted):
120.I note in the response to the IAA’s invitation, the applicant did not deny that his brother was performing military service when they were in Iran, as per his sister’s evidence. I am mindful that the applicant did not give a full account of his brother’s circumstances in his application for protection and during his PV interview, where he claimed that he had tried to convince his brother to travel to Australia with him and their sister, but he refused without any reference to the fact that his brother would have been unable to leave Iran because he was performing his military service. His evidence suggests an intent to conceal his brother’s true circumstances. I have also considered my other findings rejecting the applicant’s claims regarding the brother’s purported Christian conversion and arrest.
121.As previously noted, the applicant provided to the delegate a copy of a 2013 summons accusing the applicant of ‘running away from Holy Compulsory Service’ and leaving the country illegally. I have already raised concerns about the genuineness of this document.
122.Country information from a 2013 DFAT report also noted that it might be possible to obtain a genuine identification document with the intention of impersonating another person, but sophisticated border control procedures would make it difficult to use in order to leave Iran.3 In another reported published in 2013, it noted that, according to an employee of a Western embassy, he did not consider it possible to exit the Imam Khomeini International Airport with a forged passport, but would not rule out the possibility of a person being able to bribe his way out of the airport - though the price would probably be high. The source indicated that the price could be as high as 8-10,000 Euros.4 The applicant made no such claim.
123.On the evidence before me, I do not accept the applicant has outstanding military service obligations. I am satisfied he was exempt from military service because his brother was serving in the military when the applicant came of military age. I also do not accept the applicant left Iran on a false passport, and I am satisfied he left on a genuine passport. I am not satisfied he has a well-founded fear of persecution in relation to these claims.
The applicant observed that the evidence before the IAA, upon which it relied, made plain that the granting of an exemption was a discretionary matter for the relevant authorities. The 2020 DFAT report on which the IAA relied at [113] of its Decision stated as follows (CB 1048):
3.161Authorities can grant individual exemption from military service on several grounds. These include… having a brother currently serving in the military…
…
3.164DFAT assesses that most – but by no means all – Iranian males will undergo military service. Obtaining an exemption from military service is possible, but depends heavily on individual and socioeconomic circumstances… (emphasis added).
The applicant submitted that there was no logical or rational basis upon which the IAA could have concluded that the applicant “was exempt” from military service, as it did at [123] of the decision.
It was open to the IAA not to have accepted the applicant’s claim to have outstanding military service obligations based upon the credibility issues that it had identified with his evidence and other evidence indicating that he may have been exempt. This included the IAA’s impression that the applicant had been less than forthcoming about his brother’s military service, in circumstances where the IAA had learned about this from the applicant’s sister. It included the reasons that the IAA gave for doubting the genuineness of the “2013 summons”. The IAA was not obliged to accept the applicant’s claims to have outstanding military service obligations. The matters that the IAA relied upon provided a sufficient logical explanation for their non-acceptance.
I accept the applicant’s submission that such matters would not, however, have been logically capable on their own of supporting a positive finding that the applicant was exempt from military service because his brother was serving in the military when the applicant came of military age. The credibility issues that the IAA had identified with the applicant’s evidence provided a basis for not relying upon that evidence. The country information indicating the possibility of exemption may have provided a basis for doubting the applicant’s claim that an exemption had not been granted. However, it did not, without more, provide a logical basis for an affirmative conclusion that an exemption had been granted on the basis found.
The Minister relied upon the IAA’s reasoning at [122] as supporting the additional step towards such a conclusion. In that paragraph, the IAA relied upon country information indicating that it was unlikely that the applicant would have been able to depart Iran on a non-genuine passport, in circumstances where he had not claimed to have paid a substantial bribe. The Minister linked this to the IAA’s reasoning at [114], where it considered that if the applicant were exempt from military service, it would suggest that he had no reason to leave on a false passport.
I am not persuaded that this reasoning, without more, was logically capable of supporting a positive finding that the applicant was exempt from military service due to his brother’s service. The country information relied upon by the IAA was capable of supporting the IAA’s finding at [123] that the applicant had departed Iran on a genuine passport. This is because the country information indicated that the applicant would have been unable to have departed the country on a false one. However, without more, this was not logically capable of positively resolving the question of whether the applicant had in fact been granted an exemption from military service, unless the IAA also found upon some logical basis that a person in the applicant’s position, who was not exempt, would have been unable to have departed Iran on a genuine passport. This was in circumstances where the country information before the IAA indicated that the applicant may, or may not, have been able to have achieved an exemption on the basis of his brother’s service.
I have given careful consideration to whether the IAA’s reasoning contained this additional step and whether such a step was logically available to the IAA. As I observed at the hearing of this matter, there was some country information before the IAA indicating that a person who was not exempt from military service may, at least in 2020, have had some difficulty departing Iran. This information was contained at 5.23 of the 2020 DFAT Report (at CB 1061), which stated:
5.23In some cases, citizens require special permission to obtain a passport (see also Passports). This includes minors under the age of 18, who require the permission of their father/custodian; males who have not completed their military service, who must present authorities with their military service exemption or the written permission of the Public Military Service Department; and married women, who require their husband’s permission. Iranian citizens residing abroad who are not under the obligation of military service can apply for the issuance of a multiple exit permit through the Ministry of Foreign Affairs. They are required to provide completed forms detailing their place of residence and requesting a multiple exit permit, evidence of the completion of (or exemption from) military service, the original and photocopies of their existing passport and photocopies of pages related to their previous travel to Iran, a photocopy of their residence permit and two passport photographs…
A UK Home Office Report from November 2022 (CB 3188) referred to the 2020 DFAT Report as indicating that the government “may also refuse to grant draft evaders drivers licences, revoke their passports or prohibit them from leaving the country without special permission” (emphasis added). The applicant had claimed that a Summons (CB 3338) (the authenticity of which was not accepted by the IAA) referred to both “[r]unning away from Holy Compulsory Service” and “[l]eaving the country illegally”.
None of this material directly answered the question of whether the applicant would have been expected to have been prevented from lawfully departing Iran if he were not exempt from military service in 2013 (as distinct from in 2020 or 2022).
In any event, on balance, I accept the applicant’s submission that there is insufficient basis for an inference to be drawn that the IAA reasoned in this manner. I accept that the IAA appears to have considered, at [119], that there was a “realistic possibility” that the exemption applied, with the result that his military service was finalised, and that this was why he was able to depart Iran in May 2013. At [120], it appears to have considered that the applicant’s brother would have been unable to depart Iran whilst he was performing military service. However, the IAA does not appear to have clearly and unambiguously found that the applicant would have been unable to have departed Iran without an exemption (or articulated the basis upon which such a conclusion could have been reached).
As the applicant submitted, such a reasoning process would have depended upon the answers to a number of questions which were not addressed in the IAA’s reasoning. These included the source of what was relied upon by the IAA in coming to this conclusion, if such a conclusion were in fact reached. There is no indication, for example, that the IAA relied upon personal knowledge and it is unclear that if such knowledge were relied upon, what specifically it involved. If the IAA relied upon the 2020 or 2022 country information, it is unclear from the IAA’s reasoning whether (and if so, why) it considered that such an impediment to exit would have been similarly applicable in 2013.
Also tending against the construction of the IAA’s reasoning in this manner is the fact that the IAA did not articulate such reasoning in its decision. The IAA was required to set out in its reasons for decision its findings on material questions of fact, and to refer to the evidence or other material on which those findings were based: see BYA17 v Minister for Immigration and Border Protection [2019] FCAFC 44; (2019) 269 FCR 94 at [48] (Rares, Perry and Charlesworth JJ).
The IAA did not expressly state that it considered that the applicant’s ability to leave Iran on a genuine passport meant that he was necessarily exempt from military service (or why). This may be contrasted with the balance of the IAA’s reasoning at [111] to [123], where it otherwise appears to have set out, with some level of specificity, the information that it was relying upon in reaching the conclusions that it reached.
Therefore, I conclude that the IAA’s reasoning regarding the applicant’s exemption from military service was informed by the matters that it identified under these paragraphs, namely:
(a)the credibility issues it had identified with the applicant’s evidence, including its consideration that the applicant had been less than forthcoming about his brother’s situation and rejection of his claim that he had departed Iran on a false passport; and
(b)country information indicating that it was possible that he had been granted an exemption, because such an exemption may have been granted on account of his brother’s service.
For the reasons given above, I have found that such reasoning was not, without more, logically capable of supporting the IAA’s positive satisfaction that the applicant “was exempt from military service because his brother was serving in the military when the applicant came of military age”.
The question then becomes the significance of the error. The applicant submitted, and I accept, that the IAA’s reliance upon its positive finding that the applicant was exempt from military service informed its findings rejecting the applicant’s claim to have outstanding military service obligations and to face harm on this basis. At minimum, it appears to have informed the confidence with which the latter findings were drawn. Had the IAA drawn those findings with less confidence, such that doubt attended those findings, then it would have been required to have assessed the risk to the applicant on the alternative basis that the applicant was not exempt from military service: DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175 at [36]. The assumption that appears to have been made by the IAA in this regard therefore appears to have prevented the IAA from otherwise engaging with the evidence before it regarding the consequences of non-exemption. I therefore consider that the error was of central significance to the decision that was reached by the IAA.
The Minister submitted that had the IAA done so, then the result could not have been anything other than the conclusion reached by the Delegate in relation to this claim. The Delegate found that any consequences likely to befall the applicant in connection with his military service obligations did not give rise to a relevant risk of harm because they arose from a law of general application (CB 181).
I am not persuaded that the outcome was as inevitable as has been suggested by the Minister. Whether or not the applicant’s obligations arose from a law of general application was a factual assessment for the IAA, rather than the Court, to undertake. As was observed by the applicant, cases such as Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19; (2000) 201 CLR 293 at [19]-[21] and others speak to potential complexities associated with that task. The IAA would have been required to have considered the effect of the application of such laws upon particular groups. Such an assessment would have been required to take place within the context of the applicant’s claims regarding his conscientious objection, opposition to the Iranian regime, status as a failed asylum seeker and mental health conditions.
Having regard to the above, I consider that the error that has been demonstrated by the applicant was of sufficient significance to justify a finding that it infected the IAA’s decision and therefore rendered it illogical or unreasonable. I have found that the impugned reasoning significantly informed the IAA’s rejection of the applicant’s claims to face harm on account of his outstanding military service obligations, with the result that it did not engage with the material or claims before it relating to the consequences of such obligations. This concerned one of the applicant’s core claims to protection.
I wish to say that in so finding, I do not wish to be seen to be making any particularly harsh criticism of the IAA as constituted in this matter. The matter involved a particularly large volume of material, numbering thousands of pages and covering a considerable number of claims that had made over a number of years. The IAA’s decision in this matter was a particularly lengthy and detailed one, that appears to have otherwise been carefully reasoned. I have respect for the significant amount of work that such a decision would have required on the part of the IAA. This is without expressing any view on the factual correctness of the decision, which is beyond the role of this Court.
Nonetheless, as I have accepted the applicant’s contentions under ground 3, jurisdictional error has been demonstrated.
CONCLUSION
For the above reasons, the application before the Court succeeds.
I will hear from the parties in relation to costs.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Deputy Associate:
Dated: 17 January 2024
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