EWF18 v Minister for Immigration
[2020] FCCA 447
•31 March 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EWF18 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 447 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of protection visas – first applicant claiming a fear of harm in Iran – first applicant not believed – whether the Authority overlooked evidence or failed to consider the possibility of it being wrong considered – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 473DA, 473GB |
| Cases cited: Applicant WAEE v Minister for Immigration (2003) 236 FCR 593 |
| First Applicant: | EWF18 |
| Second Applicant: | EWG18 |
| Third Applicant: | EWH18 |
| Fourth Applicant: | EWI18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESMENT AUTHORITY |
| File Number: | SYG 2651 of 2018 |
| Judgment of: | Judge Driver |
| Hearing date: | 28 February 2020 |
| Delivered at: | Sydney |
| Delivered on: | 31 March 2020 |
REPRESENTATION
| Counsel for the Applicants: | Mr B Zipser |
| Solicitors for the Applicants: | Stamford Law |
| Counsel for the Respondents: | Ms N Laing |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application as amended on 6 February 2020 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2651 of 2018
| EWF18 |
First Applicant
EWG18
Second Applicant
EWH18
Third Applicant
EWI18
Fourth Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicants seek judicial review of a decision of the Immigration Assessment Authority (Authority) made on 10 August 2018. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicants protection visas. There are four applicants, who are a husband (first applicant), his wife (second applicant) and two children. The relevant protection claims were made by the first applicant.
Background facts relating to this matter are set out in the submissions of the parties.
On 29 September 2012 the applicants arrived in Australian waters (at Christmas Island) by boat as unauthorised maritime arrivals.[1]
[1] Court Book (CB) 75, 244
On 28 November 2012 the first applicant and the second applicant each participated in an “Irregular Maritime Arrival Entry Interview”.[2]
[2] CB 1-19, 20-34
Between September and November 2012 the applicants were in detention centres, following which they were granted temporary visas and released into the community on the Australian mainland.[3]
[3] CB 93
Following an invitation issued on 23 August 2016,[4] on 7 or 10 July 2017[5] the applicants lodged applications for a Safe Haven Enterprise Visa (SHEV),[6] comprising:
a)Part B for the family at CB 55-66;
b)Part C for the first applicant at CB 67-95;
c)a statement by the first applicant setting out his claims at CB 96-101;
d)Part C for the second applicant at CB 102-129;
e)Part C for each applicant child at CB 130-187.
[4] CB 35
[5] CB 188, 244
[6] CB 55-187
On 13 March 2018 the first applicant participated in an interview with the delegate.[7]
[7] CB 206, 209, 251
On 19 March 2018 the applicants’ agent provided a post-interview submission to the Minister’s Department.[8]
[8] CB 210-237
On 28 March 2018 the delegate made a decision refusing to grant the applicants a SHEV.[9]
[9] CB 244-273
On 29 March 2018 a different delegate of the Minister signed a certificate under s.473GB of the Migration Act 1958 (Cth) (Migration Act) concerning records (probably audio records) of two protection visa interviews on 6 March 2018.[10] The records appear to concern the protection visa interviews undertaken by the first applicant’s mother and brother.
[10] CB 274
On 5 April 2018 the Authority sent the applicants letters informing them of the referral of the matter to it and providing information about the Authority and referral.[11]
[11] CB 276-287
On 26 April 2018 the applicants’ agent provided a submission to the Authority.[12]
[12] CB 293-298
On 10 August 2018 the Authority made a decision affirming the delegate’s decision not to grant the applicants a SHEV.[13]
[13] CB 314-328
On the same day the Authority (constituted by the same reviewer) made a decision concerning the first applicant’s mother, brother and his brother’s wife and children.[14]
[14] see affidavit of Ali Alkafaji filed 6 February 2020 annexing the decision
Authority decision
The Authority observed that it had received submissions sent on behalf of the first applicant. To the extent that those submissions simply responded to the delegate’s decision and provided arguments, the Authority did not consider them “new information” and had regard to them.[15] The Authority found at [5]-[6] that exceptional circumstances justified consideration of a UK Home Office report and a DFAT[16] report published in 2018.
[15] CB 316 [4]
[16] Department of Foreign Affairs and Trade
The Authority accepted that:
a)the first applicant faced some harassment and discrimination by reason of his Arab ethnicity;[17]
b)the first applicant’s brother converted to Sunnism, was arrested and subsequently served a term of imprisonment;[18] and
c)the first applicant attended a political rally in Australia in 2013.[19]
[17] CB 317 [9], CB 321 [21]
[18] CB 319 [15], CB 321 [20]
[19] CB 320 [17]
However, the Authority did not accept that the first applicant had converted to Sunnism. He made no mention of this in his entry interview. His evidence at the protection visa interview was found to be “particularly unimpressive” in this regard. In response to extensive questioning by the delegate, he had focussed on “Shia ceremonies or customs, which he claims to [no] longer follow, rather than any Sunni beliefs or customs that he now follows or undertakes”. His only positive evidence of activities undertaken by Sunni Muslims was a reference to their hands being used differently during prayer and evidence that Sunnis prayed six times a day. The latter information was incorrect (Sunnis customarily pray five times a day). The first applicant also incorrectly claimed at one point that Sunnis had a different Quran. The Authority was not satisfied that the first applicant had converted to Sunnism on the evidence before it. Rather, it concluded that he remained a Shia Muslim.[20]
[20] CB 318 [11]
In respect of the first applicant’s claim to have been sought by the Ettela’at, the Authority concluded that the persons raiding his family’s house had been seeking the first applicant’s brother, and not him. This was consistent with evidence from the first applicant’s brother and mother, which omitted mention of the first applicant being sought in connection with the raid.[21]
[21] CB 319 [12]
The Authority did not accept that the first applicant had worked in a family grocery shop. It preferred early evidence given by the first and second applicants at separate interviews to the effect that the first applicant had worked as a construction worker in Iran.[22] The Authority did not accept that intelligence agents had come into the store asking if the first applicant was Sunni, or that they had paid people to harass the family. This alleged harassment was claimed to predate his brother’s arrest, however the first applicant’s brother and mother had not claimed that the conversion was known outside the family before that time.[23]
[22] CB 318 [10]
[23] CB 319 [15]
The Authority did not accept that the first applicant was targeted due to his brother’s conversion or arrest. Nor did it accept that he was imputed with an adverse profile or opinion due to his relationship with his brother. In this regard, the Authority observed that two of the first applicant’s siblings remained in Ahwaz and there was no indication that they were targeted because of these developments.[24]
[24] CB 319-320 [15]-[16]
The Authority did not accept that the first applicant had publicly expressed opinions against the government or authorities in Iran, or that he was imputed with a political opinion against the Iranian authorities. Whilst the Authority accepted that the first applicant attended a rally in Australia in 2013, it did not accept that he had been identified due to his attendance. Nor did the Authority accept that the first applicant had posted political articles on Facebook, in the absence of evidence to support this claim.[25]
[25] CB 320 [17], CB 322 [23], CB 323 [29]
Although the Authority accepted that the first applicant may face some discrimination due to his Arab ethnicity, it did not accept that this would amount to serious or significant harm.[26] Nor, based on available country information, did the Authority accept that the first applicant faced a real chance of relevant harm on account of his failed attempt to seek asylum overseas.[27]
[26] CB 321-322 [21]-[22], CB 323 [29]
[27] CB 322 [24], CB 323 [29]
Ultimately, the Authority was not satisfied that the applicants were persons to whom protection obligations were owed. Accordingly, it affirmed the delegate’s decision.[28]
[28] CB 322-323 [26]-[32]
The current proceedings
These proceedings began with a show cause application filed on 19 September 2018. At the trial of this matter on 28 February 2020, the applicants sought leave to rely upon an amended application filed on 6 February 2020. The Minister opposed the granting of leave and referred to the decision of this Court in CWX18 v Minister for Immigration & Anor[29] at [14]-[15]. I granted leave, taking into account the involvement of counsel in the drafting of the amended application, the fact that leave was not sought for any improper purpose such as delay and that the Minister had dealt with the amended grounds in his submissions. There was also some correlation between the amended grounds and the original grounds, which had been formulated by the applicants’ solicitor. In granting leave, I also had regard to the affidavit of the applicants’ solicitor, Mr Alkafaji, made on 28 February 2020. The grounds as amended are:
1.The applicant claimed that he converted to Sunnism in 2010. The Immigration Assessment Authority ("the IAA"), in its decision dated l 0 August 2018, rejected the claim. There was evidence before the IAA member, or alternatively information of which the IAA member was aware from a decision in another matter made on the same day, that the applicant's mother had converted to Sunnism and had given evidence that she converted to Sunnism ("the Mother's Evidence"). This evidence would rationally affect an assessment of whether the applicant converted to Sunnism. The IAA overlooked or failed to have regard to the Mother's Evidence in rejecting the applicant's claim of conversion to Sunnism, which involved jurisdictional error. Alternatively, if the IAA had regard to the Mother's Evidence, the IAA failed to give proper and genuine consideration to the evidence in a manner which involved jurisdictional error.
2.The applicant claimed that his parents owned and ran a grocery store in Iran. The IAA rejected the claim. The IAA's reasons for decision indicate that, on an issue involving competing evidence, it found on the balance of probabilities that the applicant was a construction labourer in Iran and it was not satisfied that the parents owned and ran a grocery store. Based on the IAA's reasons for decision, the IAA had a real doubt as to whether its finding on this issue was correct. In the circumstances, the IAA ought to have considered the possibility that its finding on this issue was wrong (see Minister v Rajalingam (1999) 93 FCR 220) and its failure to do so involved jurisdictional error.
3.The applicant claimed that he converted to Sunnism in 2010. The IAA, after listening to an audio recording of the applicant's protection visa interview on 13 March 2018 and considering other evidence before it, rejected the claim. In Wang v Minister (2000) 105 FCR 548 at [16] the court stated that “it is not appropriate for the RRT to take on the role of arbiter of doctrine with respect to any religion”. In the present matter, the IAA contravened this principle, which is a jurisdictional error.
4. The applicant claimed that he converted to Sunnism in 2010. The Minister’s delegate accepted the claim, but the IAA rejected the claim. The applicant also claimed that his parents owned and ran a grocery store in Iran at which he occasionally worked. The Minister's delegate appeared to accept the claim, while the IAA rejected the claim. Section 473DC of the Migration Act empowers the IAA to invite an applicant to give new information. In circumstances where the Minister's delegate made favourable findings for the applicant concerning important matters and the IAA was considering making unfavourable findings concerning the matters, the IAA unreasonably failed to consider whether to exercise the power in s 4 73DC to invite the applicant to comment on its concerns. Alternatively, if the IAA considered whether to exercise the power in s 473DC, the IAA's failure to exercise the power was legally unreasonable.
[29] [2019] FCCA 2369
Grounds 3 and 4 were not pressed.
In addition to the court book lodged on 16 October 2018, I have before me as evidence the affidavit of Mr Alkafaji made on 6 February 2020, to which are annexed documents concerning another decision of the Authority involving other members of the applicants’ family. The documents include the decision and reasons of the Authority in the case of a brother and the mother of the first applicant in the present proceedings as well as other family members. It is noteworthy that in that decision, made on the same day as the decision subject to these proceedings, and made by the same reviewer, the claims of the first applicant’s mother were accepted and the matter was remitted for reconsideration with a direction that she is a refugee within the meaning of s.5H(1) of the Migration Act. The other applicants in that matter also succeeded on the basis that they were members of the applicant mother’s family unit.
Consideration
The applicants’ contentions draw upon the apparent incongruity between the acceptance of the applicant mother’s claims in the related Authority decision and the rejection of apparently overlapping claims by the first applicant in the present matter. Relevantly, the applicants submit as follows.
Part of the evidence before the Authority was the protection visa interview between the first applicant’s mother and the delegate on 6 March 2018 (“the Mother’s Interview”). It appears from the Authority decision at [15] (first sentence, and clause commencing “his brother and mother have not stated …”) that the Authority listened to the audio recording of the Mother’s Interview. There appears to be no other way the Authority could have obtained the information and made the findings in these sentences. It is also appears from the s.473GB certificate issued[30] that the Authority had before it the audio recording of the Mother’s Interview.
[30] CB 274
As recorded in the Authority decision dated 10 August 2018 concerning the first applicant’s mother, a claim by the first applicant’s mother was that she converted to Sunnism. Further, the Authority (constituted by the same member), in its decision dated 10 August 2018, accepted this claim.
The forensic purpose of the Authority decision dated 10 August 2018 concerning the first applicant’s mother being advanced by the applicants is to prove that part of the mother’s evidence and claims to the Minister’s Department was that she converted to Sunnism. A clearer way of proving this matter would be for the first applicant to obtain the audio recording of the Mother’s Interview, and prepare and tender a transcript of the interview. However, in the present proceeding, despite the fact that the audio recording of the Mother’s Interview was before the Authority, the Minister’s lawyers have declined to give a copy of the audio recording to the applicant’s lawyers.[31]
[31] see email correspondence annexed to affidavit of Mr Alkafaji
Taking into account that the first applicant’s brother, A,[32] converted to Sunnism and was detained by the Iranian authorities and convicted of an offence as a result,[33] in circumstances where the first applicant claimed that other members of his family converted to Sunnism, the applicants contend that evidence from the first applicant’s mother that she converted to Sunnism would rationally affect an assessment of whether the first applicant converted to Sunnism. The evidence from the first applicant’s mother that she converted to Sunnism, which was accepted by the Authority member in a decision concerning the mother published on the same day, is said to both:
a)corroborate an aspect of the first applicant’s claims (ie that a number of family members converted to Sunnism); and
b)increase the likelihood that his claim that he converted to Sunnism is true.
[32] the name has been anonymised
[33] see CB 319 [15]
Yet the Authority made no reference in its decision to the evidence before it, and of which it was clearly aware, that the mother converted to Sunnism.
Section 473EA of the Migration Act provides:
If the Immigration Assessment Authority makes a decision on a review under this Part, the Authority must make a written statement that:
(a) sets out the decision of the Authority on the review; and
(b) sets out the reasons for the decision; and
(c) records the day and time the statement is made.
Section 25D of the Acts Interpretation Act 1901 (Cth), titled “Content of statements of reasons for decisions”, provides:
Where an Act requires a tribunal, body or person making a decision to give written reasons for the decision, whether the expression "reasons", "grounds" or any other expression is used, the instrument giving the reasons shall also set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based.
Where the Authority does not refer to material evidence in its reasons for decision, a court can infer that the Authority overlooked or failed to have regard to the evidence.[34]
[34] see Minister for Immigration v Yusuf (2001) 206 CLR 323 at [69]; Kalala v Minister for Immigration (2001) 114 FCR 212 at [23]; ApplicantWAEE v Minister for Immigration (2004) 236 FCR 593 at [47]; Lafu v Minister for Immigration (2009) 112 ALD 1 (Full Federal Court) at [53]-[54]; Cotterill v Minister for Immigration (2016) 330 ALR 617 (Full Federal Court) at [100]-[106] and [121]-[123]
Where a decision-maker overlooks or fails to have regard to material or significant evidence, this constitutes jurisdictional error. For example, in WAFP v Minister for Immigration[35] at [21] the Full Federal Court stated:
However, in our view, the failure by the RRT to refer to the interview of 10 September 1997 and to take it into account in considering whether the appellant departed illegally did amount to an error of law, because it constituted a failure to have regard to relevant material, which is so fundamental that it goes to jurisdiction
[35] [2003] FCAFC 319
In Minister for Immigration v SZRKT[36] at [72] Robertson J stated:
The relevance of the Punjab University transcript to the question of the nature of the applicant’s study at that university was so high that the obvious inference that the absence of reference to the document, either by putting its falsity to the applicant or by seeking an explanation of how his evidence should or could be reconciled with the transcript, supported the conclusion that the tribunal did not take it into account is not outweighed by general references to material on the files. This is a matter of ordinary fact-finding rather than depending on some special tenet of administrative law. Neither, in my opinion, is it outweighed by a general statement by the tribunal that it had a range of documents about the circumstances of the applicant.
[36] (2013) 212 FCR 99
Alternatively, the applicants contend that Authority failed to give proper and genuine consideration to the evidence before it. In Singh v Minster for Home Affairs[37] at [30] the Full Federal Court stated:
If a statute requires a decision-maker to consider a matter, the decision-maker must give that matter ‘proper, genuine and realistic consideration’; that is, the decision-maker must engage in an ‘active intellectual process’ directed at the matter: Carrascalao v Minister for Immigration & Border Protection (2017) 252 FCR 352 at [45], per Griffiths, White and Bromwich JJ
[37] [2019] FCAFC 3
The Full Federal Court added at [36]-[37]:
The principle does not require the decision-maker to refer in the reasons to every piece of evidence and every contention made: Carrascalao at [45]; ETA067 at [13]. However, if a critical piece of evidence or a particular issue is not referred to, that fact might be one from which an inference can appropriately be drawn that the decision-maker did not consider it. That, in turn, may be relevant to whether the decision-maker engaged actively with the matter.
In determining whether the decision-maker had an active intellectual engagement, the following matters are relevant:
(1)First, the degree of consideration which is necessary for the jurisdiction to be exercised … is affected by the centrality of the matter which it is said was not engaged with, to the issues and the prominence the matter assumed.
(2)Secondly, in examining the reasons of the decision-maker to determine whether there was a lack of intellectual engagement:
(a)the reasons should not be scrutinised “minutely and finely with an eye keenly attuned to the perception of error”: Carrascalao at [45], quoting Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [30];
(b)it is necessary to read the reasons in light of the whole case as it was before the Tribunal, which might have involved more issues than are raised, and more evidence than is, before courts on judicial review and subsequent appeal. The failure to mention a particular paragraph of a particular piece of evidence should be analysed by reference to the whole of the material before the Tribunal and its prominence assessed by reference to all of the issues and the way in which the matter was conducted in the Tribunal; and
(c)a conclusion that the decision-maker has not engaged in an active intellectual process “will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicants carry the onus of proof”: Carrascalao at [48].
To similar effect, in NAJT v Minister for Immigration[38] at [212] (Madgwick J, Conti J agreeing) stated:
Nevertheless, given the potential importance of the letter and the delegate’s fleeting, uncritical references to it in his reasons, in my view the inference should be drawn that the delegate did not actually consider what significance and weight it deserved. A decision-maker cannot be said to ‘have regard’ to all of the information to hand, when he or she is under a statutory obligation to do so, without at least really and genuinely giving it consideration. As Sackville J noticed in Singh v Minister for Immigration & Multicultural Affairs [2001] FCA 389; 109 FCR 152 at [58], a ‘decision-maker may be aware of information without paying any attention to it or giving it any consideration’. In my opinion, it would be very surprising if the delegate had genuinely paid attention to the letter and given it genuine consideration — had in Black CJ’s phrase in Tickner v Chapman (1995) 57 FCR 451 at 462 engaged in ‘an active intellectual process’ in relation to the letter — yet remained silent about such consideration in the reasons he gave. I am satisfied he did not do so.
[38] (2005) 147 FCR 51
In oral argument, counsel for the applicant also sought to draw support from the observations of Thawley J in EKN17 v Minister for Immigration[39] at [91].
[39] [2019] FCA 1135
In relation to the second ground of review, the applicants submit as follows. The first applicant claimed that his parents owned and ran a grocery store. The Authority at [10] rejected the claim. The Authority, after summarising evidence in favour of and against the first applicant’s claim, concluded:
I prefer the initial evidence that the applicant was a construction labourer in Iran. I am not satisfied that his family owned and ran a grocery store.
In Minister for Immigration v Rajalingam[40] Sackville J stated at [60], [62], [63] and [67]:
[60] It follows from the observations of the High Court in Wu Shan Liang and Guo that there are circumstances in which the RRT must take into account the possibility that alleged past events occurred even though it finds that those events probably did not occur ... The RRT must not foreclose reasonable speculation about the chances of the hypothetical future event occurring.
[62] In this context, it is not always possible for the decision-maker to be satisfied as to whether alleged past events have occurred with certainty or even confidence. When the RRT is uncertain as to whether an alleged event occurred, or finds that, although the probabilities are against it, the event might have occurred, it may be necessary to take into account the possibility that the event took place in considering the ultimate question. Depending on the significance of the alleged event to the ultimate question, a failure to consider the possibility that it occurred might constitute a failure to undertake the required reasonable speculation in deciding whether there is a “real substantial basis” for the applicant's claimed fear of persecution ...
[63] ... The reasonable speculation in which the decision-maker must engage may require him or her to take account of the chance that past events might have occurred, even though the decision-maker thinks that they probably did not. In the language of s 476(1)(e) of the Migration Act, a failure to do so may constitute “an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found”.
[67] In general, however, the question of whether the RRT should have considered the possibility that its findings of fact might not have been correct is to be determined by reference to the RRT's own reasons. If a fair reading of the reasons as a whole shows that the RRT itself had “no real doubt” (to use the language in Guo) that claimed events had not occurred, there is no warrant for holding that it should have considered the possibility that its findings were wrong. Reasonable speculation as to whether the applicant had a well-founded fear of persecution does not require a possibility inconsistent with the RRT's own findings to be pursued ... Only if a fair reading of the reasons allows the conclusion that the RRT had a real doubt that its findings on material questions of fact were correct, might error be revealed by the RRT's failure to take account of the possibility that the alleged events might have occurred ... If the fair reading allows of such a conclusion, the failure to consider the possibilities might demonstrate that the RRT had not undertaken the required speculation about the chances of future persecution.
[40] (1999) 93 FCR 220
The Authority’s finding that “I prefer the initial evidence …” is said to be a finding involving the approach of weighing competing evidence and preferring, on the balance of probabilities, one version of evidence over another. The applicants submit that on a fair reading of the Authority’s reasons, the Authority, although it found on the balance of probabilities that the first applicant was a construction labourer in Iran, “had a real doubt” as to whether its finding was correct. In the circumstances, the Authority ought to have considered the possibility that its finding on this point was wrong. Its failure to do so is said to involve jurisdictional error.
I do not accept the above contentions. In my view, in relation to the first ground, the applicants’ contentions fail at a foundational level because it cannot be accepted that the Authority would in some way overlook claims by one family member in a related proceeding dealt with on the same day as the review in issue, where the claims overlapped with those of the present applicants. This was, in my view, an example of a case where the first applicant in the present matter was not believed in relation to claims which overlapped with those of his mother, who was believed. In substance, in my view, the first applicant in the present matter attempted unsuccessfully to associate himself with claims made by his mother. It is perhaps ironic that the present applicants might have been more successful if they had simply joined in the claims of the applicant mother in the other case as members of her family group. That is, however, not what they did and, having made his own claims in a separate application, the first applicant could not assume that his formulation of the claims would be accepted just because the claims put by his mother had been.
I otherwise agree with the Minister’s submissions concerning the extant grounds of review.
By the first ground, it is contended that the Authority failed to have any, or failed to have appropriate, regard to evidence from the first applicant’s mother about her conversion to Sunnism.
There are some initial evidentiary issues with the ground. There is not clear evidence before the Court as to what material exactly the Authority had before it in relation to the first applicant’s` mother and brother, other than what is referred to in the delegate’s and the Authority’s decisions. As the High Court has recently affirmed in BVD17 v Minister for Immigration,[41] the Authority is not obliged to give reasons for its exercise of discretion under s.473GB of the Migration Act.
[41] (2019) 93 ALJR 1091 at [38]-[40] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ
Even if the material in the decision record annexed to Mr Alkafaji’s affidavit (Mother’s Decision Record) was before the Authority, there is insufficient basis for finding that it was overlooked by the Authority.
It is well settled that a decision maker is not required “to refer in the reasons to every piece of evidence and every contention made”.[42] Although a lack of consideration may be inferred from a decision maker not expressly dealing with a matter in their reasons, such an inference will “not too readily” be drawn.[43] A matter may be considered insufficiently material to the ultimate reasons for a decision to warrant specific mention in the decision record. Matters may also be dealt with in findings of greater generality, or through a factual premise upon which a contention relies being rejected. Even if corroborative evidence is not considered, this will not result in jurisdictional error unless it can be shown to have been sufficiently cogent, central and substantial as to have been capable of affecting the jurisdiction of the Tribunal.[44]
[42] Singh v Minister for Home Affairs [2019] FCAFC 3 at [36]
[43] Applicant WAEE at [46]- [47]
[44] SZRKT at [97]-[112]; SZWCC v Minister for Immigration [2015] FCA 1402 at [35]-[41]
In the present case, there are significant features of the material that tend against the drawing of an inference that the mother’s conversion was overlooked. The same reviewer appears to have made the decision on the first applicant’s case, less than 10 minutes after the decision on his mother’s. It is exceptionally unlikely that the reviewer would have overlooked the basis of her finding that the mother was owed protection obligations (i.e. her conversion) in a related decision finalised minutes subsequently. This is particularly so in circumstances where the Authority clearly did have regard to evidence from the first applicant’s mother.[45] That evidence was preferred to the first applicant’s in important respects. For example, the mother’s lack of reference to the first applicant being sought in the raid upon their house was found to undermine his claim to have been sought in the raid by the authorities.
[45] see for example CB 319 [12] and CB 319 [15] of the Authority decision
Although the applicants seek to categorise the mother’s conversion as “critical” and increasing “the likelihood” of the first applicant’s conversion, this does not necessarily follow from the material. The mother did not claim that the first applicant had converted to Sunnism. It is apparent from the Mother’s Decision Record that she claimed some, but not all, of the family had converted.[46] Consistently with the approach taken to the mother’s evidence regarding the raid, it is at least as likely that the Authority may have found that the mother’s lack of evidence about the first applicant’s conversion undermined his claims in this regard. The mother’s evidence was therefore not as unequivocally corroborative as the applicants’ submissions suggest.
[46] CB 320 [17]
The Authority based its finding that the first applicant had not converted to Sunnism on the unsatisfactory nature of his own evidence in relation to his beliefs and practices. This included factual errors made by the first applicant in relation to basic principles, such as the number of prayers Sunnis say each day and whether there is a Sunni version of the Quran.[47] The Authority was therefore not willing to accept that the first applicant had converted. This was despite its acceptance that he had family who had done so (most notably, the first applicant’s brother). There is no inconsistency in the Authority’s finding that, while some of the first applicant’s extended family had converted to Sunnism, the first applicant had not.
[47] CB 318 [11]
The available inference, therefore, is not that the Authority overlooked the mother’s evidence. Rather, it is that it did not place the corroborative weight upon it now contended by the applicants.
It follows that the first ground does not succeed.
In the second ground, it is contended that the Authority should have applied the “what if I am wrong test” in rejecting the first applicant’s claim to have worked in a grocery shop.
Contrary to the ground, the Authority expressed no real doubt in its rejection of this claim. Doubt is not expressed by preferring some aspects of the evidence to others.[48] Nor is it expressed by a decision maker referring to a lack of satisfaction in relation to, or non-acceptance of, an applicant’s claims.[49]
[48] AZAFW v Minister for Immigration & Anor and AZAFX v Minister for Immigration & Anor [2016] FCCA 500 at [86]
[49] EGN17 v Minister for Immigration [2018] FCA 1810 at [34]-[36]; Rajalingam (1999) 93 FCR 220 at [68] per Sackville J
The Authority made clear findings rejecting the first applicant’s claims:
a)at [10], where it found: “I am not satisfied that his family owned and ran a grocery shop”;
b)at [15], where it found: “As noted above, I do not accept that the applicant’s family owned or ran a grocery store”; and
c)at [17], where it found: “As I have not accepted that there was a family shop as claimed I do not accept that these interactions took place”.
The Authority therefore not only rejected the first applicant’s claims to have worked in a grocery shop, but relied upon this finding as a reason for rejecting other claims made by the first applicant.
In these circumstances, it cannot be said that the Authority’s findings regarding the grocery shop were attended by any real doubt. It follows that the Authority was not obliged to apply the “what if I am wrong test”.
Conclusion
I conclude that the applicants are unable to demonstrate that the decision of the Authority is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 31 March 2020
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