FFM17 v Minister for Immigration
[2018] FCCA 3270
•16 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FFM17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3270 |
| Catchwords: CITIZENSHIP AND MIGRATION – Migration – Review of decisions – Protection visa decisions – Fast track review process – Conduct of review – Natural justice CITIZENSHIP AND MIGRATION – Migration – Review of decisions – Protection visa decisions – Fast track review process – Other matters |
| Legislation: Migration Act 1958 (Cth), ss.5H, 5J, 36(2)(a), 36(2)(aa), 473CA, 473CB, 473DC(3), 473DD(a) |
| Cases cited: Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475 |
| Applicant: | FFM17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | BRG 1213 of 2017 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 8 June 2018 |
| Date of Last Submission: | 8 June 2018 |
| Delivered at: | Brisbane |
| Delivered on: | 16 November 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Burrow |
| Solicitors for the Applicant: | Arc Migration |
| Counsel for the First Respondent: | Mr McGlade |
| Solicitors for the First Respondent: | Sparke Helmore |
| The Second Respondent entered a submitting appearance |
ORDERS
The amended application filed on 15 March, 2018 is dismissed.
The applicant pay the first respondent’s costs of and incidental to the amended application fixed in the sum of $7,328.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 1213 of 2017
| FFM17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Iraq. He arrived in Australia on 17 September, 2012 by boat. For the purposes of the Migration Act 1958 (Cth) he is an unauthorised maritime arrival.
On 22 October, 2015 at the invitation of the first respondent, the applicant applied for a Temporary Protection (Subclass 785) visa. The applicant also applied for a Safe Haven Enterprise (Subclass 790) visa, but that was an invalid application and is not subject to review in this Court.
In order to obtain his protection visa, the applicant needed to establish, inter alia, that at the time of the decision he met either the refugee or complementary protection criteria in ss.36(2)(a) or 36(2)(aa) of the Act.
The application was refused by a delegate of the first respondent on 9 January, 2017. The delegate’s decision was a fast track reviewable decision. Accordingly, on 17 January, 2017 the first respondent referred the delegate’s decision to the second respondent pursuant to s.473CA of the Act. On 13 November, 2017 the second respondent affirmed the delegate’s decision.
By his amended application filed on 14 March, 2018 which I will refer to simply as his application, the applicant seeks the issue of constitutional writs quashing the second respondent’s decision and returning his application to the second respondent to be dealt with according to law. The first respondent opposes the application. The second respondent enters a submitting appearance.
The applicant’s counsel’s written submissions describe the issue in this case to be whether the second respondent’s decision not to seek any information from the applicant pursuant to s.473DC(3) of the Act in circumstances where the second respondent had determined to comprehensively depart from the credit determinations made by the first respondent’s was legally unreasonable. He argues:
3. The issue is whether the Authority acted unreasonably in not considering exercising its statutory powers under Pt 7AA of the Migration Act 1958 (Cth) to give the respondent an effective opportunity to address the issue of his credibility that the Authority found determinative, in circumstances where the delegate had made no findings adverse upon credibility findings.
For the reasons that follow, I have concluded that the second respondent’s decision is not affected by jurisdictional error and the amended application must be dismissed.
Background
The applicant’s primary claims in his visa application were that:
a)he was born and grew up in a particular town in northern Iraq;
b)he is Kurdish and was a Sunni Muslim. His family members are Sunni Muslims;
c)his town is close to the border with Iran and is influenced by the Iranian regime. There are many Iranian intelligence officers in the Kurdistan Regional Government because of the region’s strategic value to Iran;
d)he and his family left Iraq and sought asylum in Iran in 1987 following attacks on his town during Saddam Hussein’s regime. They lived in Iran as temporary refugees until 1990;
e)after he returned to his home town in Iraq from Iran, he completed intermediate high school. He worked for his father on their farm for several years, then began importing chocolates, fruit juice and biscuits from Iran. After some years, he began working with a partner based in Iran. Initially they traded in similar products, but later moved on to trade in sheep;
f)he attended a number of events in his local province organised by the Komala Party, an Iranian Kurdish political party based in his local province that is opposed to the Iranian Government. He attended the events for social reasons because he knew some people in the Party, particularly a photographer for the Party. He was not a member of the Party or involved with them politically or in any other way, but he was, he claimed, nevertheless perceived to be a member of the Party. Iranian authorities may seek to harm him for this reason, including in Iraq;
g)in the course of his business he frequently visited Iran. He rented a room and often stayed for two or three months at a time. He became friends with a fruit shop owner whose son was involved in the Komala Party;
h)in 2012 he was detained by the Iranian authorities while travelling in Iran because he was suspected of being friends with particular people who opposed the Iranian government. While in detention he was beaten, mistreated and questioned about his friendship with those particular people. After around 53 days in detention he appeared before a Revolutionary Court. The judge told him that in order to secure his release he would have to agree to become a soldier of Islam and act as a spy for Iran in Iraq and gather information about the Komala party and the people with whom he was suspected of being affiliated;
i)Iranian authorities retained his identity and business documents but released him on the basis that he would gather information about his alleged friends and the Komala Party in the Kurdistan Regional Government;
j)on his return to Iraq he was very stressed. He did not want to spy for the Iranian government;
k)he tried to move from his home town to a larger city, but members of ‘the Kurdish Party’ told him he could not stay in that city because he was single. He thinks this was an excuse made by the Kurdish Party because of pressure put on them by Iranian authorities. He decided to leave Iraq and flee to Australia;
l)after arriving in Australia, he heard that his friend’s son had been imprisoned by the Iranian Government for his political activities;
m)he feared harm from the Iranian authorities, were he to return to Iraq because:
i)Iranian intelligence officials would find him and harm if he refused to honour his obligations to be a spy for them; and
ii)the Iranian authorities may harm him because of a perception that he is opposed to the Iranian regime, given his involvement in the Komala party;
n)since his arrival in Australia, he has converted from Sunni Islam to Christianity. He regularly attends church and participates in church activities. If he returns to Iraq, he will be considered an apostate. His father has not accepted his conversion to Christianity. Even if the State does not harm him because of his conversion to Christianity, he fears his father and other relatives who oppose his conversion are now his enemies;
o)if he returns to Iraq, he may be harmed by the Islamic State of Iraq and the Levant (ISIL), who have targeted Christians in attacks. If he tries to relocate to another area in Iraq, he may face higher levels of generalised and targeted violence; and
p)the Iraqi Government will not protect him because they are involved with the Iranian Government.
The second respondent’s reasons reveal that it had regard to the material referred to it under s.473CB of the Act. It also considered three reports – one from the U.S. Commission on International Religious Freedom (USCIRF), Wilting in the Kurdish Sun: The Hopes and Fears of Religious Minorities in Northern Iraq, one from the Department of Foreign Affairs and Trade being the June, 2017 Country Information Report for Iraq 2017 and the last being the United Nations High Commissioner for Refugees November, 2016 document UNHCR Position on Returns to Iraq – which were not before the delegate. Those documents were considered to be new information for the purposes of s.473DC of the Act and that there were exceptional circumstances justifying the consideration of that new information pursuant to s.473DD of the Act. Those documents were either updated versions of reports that were before the delegate or more detailed reports than those before the delegate.
On 6 February, 2017 the applicant’s representative provided to the second respondent a submission which included:
a)a further statement, described as a “complementary statement” by the applicant in support of his application;
b)reference to information included in the UK Home Office’s August, 2016 report Country Information and Guidance Iraq: Religious minorities and a March, 2016 US Congressional Research Service paper on Politics and Governance in Iraq; and
c)eight items published on the ‘ekurd.net’ website, an online news website focussed on events in Iraqi Kurdistan.
The second respondent rejected the UK Home Office information and the US Congressional information on the basis that they each pre-dated the delegate’s decision. The second respondent was not satisfied there were exceptional circumstances to justify the consideration of the material for the purposes of s.473DD(a), that the information could not have been given to the first respondent’s delegate when the matter was before the delegate or that it was credible personal information. The second respondent did not consider it.
As to the eight items from the ‘ekurd.net’ website six of those pre-dated the delegate’s decision. The second respondent was not satisfied that any of those six items could not have been provided to the first respondents delegate before the delegate made her decision or that the information contained within them was credible personal information. The second respondent did not consider those six items. The second respondent was satisfied that the other two items could not have been put before the delegate, but given the other information before the second respondent about the topics the two items covered, it found there were no exceptional circumstances justifying the consideration of the items. It did not consider those items either.
The submissions made by the applicant’s representative and in the applicants’ “complementary statement” deal, in part, with concerns the applicant expressed about the two interviews that he undertook for the purposes of his visa application. The submission asserted that problems of interpretation affected the applicant’s evidence in the second of the two protection visa interviews. The applicant did not point to any specific examples of the problems with the interpretation or their consequences, although the applicant’s “complementary statement” identified a number of errors in the decision record, which the applicant suggested may be attributed to errors of interpretation.
The applicant participated in two interviews with a delegate of the first respondent for the purposes of his visa application. The applicant was provided a Persian interpreter for the first and second protection visa interviews, as requested in his visa application. He did not raise any concerns in respect of the interpreter during the course of the interviews. However, in submissions to the second respondent, the applicant claimed that there were interpretation problems in his second protection visa interview. He identified certain errors in the delegate’s decision which he attributed to misinterpretation. The applicant submitted to the second respondent, through his representative, that there were factual errors in the decision record, which were caused by errors in translation.
The second respondent did not accept that any errors were attributed to issues of interpretation. The second respondent found that any misunderstandings that arose between the applicant and the interpreter during the second interview were addressed appropriately by the interpreter. Whilst the second respondent agreed that there were errors in the record of the proceedings, it found that such errors were more likely errors that arose during preparation of the record.
The second respondent was ultimately satisfied that the applicant participated effectively in the protection visa interviews, largely, it seems to me, due to the fact that no issues of interpretation were raised with the interviewing officer or the delegate, notwithstanding, I think, that such issues might well not have presented themselves to the applicant until the decision was posted.
The second respondent noted that the applicants’ “complementary statement” included a number of new claims and information. The second respondent recorded that the applicant did not give any explanation about why he could not have put forward those claims or provided that information at an earlier point in time (presumably before the delegate made her decision). The second respondent was not satisfied that the information was not nor could not have been provided before the delegate made her decision or that it was credible personal information. The second respondent did not think there were exceptional circumstances to justify considering the new information contained within the “complementary statement”.
On 6 November, 2017 the applicant provided to the second respondent a letter dated 3 November, 2017 from a representative of the Pastoral Team of the Hillsong Church. The second respondent was satisfied that the requirements of s.473DD were met and considered the letter. In its reasons, the second respondent noted that the delegate’s decision referred to a letter from the same church dated April, 2016 but that the letter was not included in the referral to the second respondent.
One of the significant issues for both the delegate and the second respondent was the applicant’s identity. The second respondent found the applicant’s evidence of his identity and nationality to be inconsistent. The applicant initially claimed he was born in and lived in Iran and held Iranian identity documents, which he later claimed were not genuine – they were not provided to the Department. He has also provided to the first respondent’s department at least two different names on visa application forms. The second respondent found the applicant to be a citizen of Iraq, notwithstanding having expressed concerns in relation to the applicant’s claim to be such a citizen. It also accepted other background information of the applicant, including that the applicant and his family fled to Iran between 1987 and 1990 seeking protection from the regime of Saddam Hussein.
The second respondent was concerned with the magnitude of the inconsistencies in the information provided by the applicant at various stages of the immigration process as well as the implausibility of some of his claims. For example, it found it implausible that the applicant initially concealed his true name and Iraqi nationality because he feared he was still at risk of being found by the Iranian authorities, even in Australia, a place he sought asylum and considered a safe place, far from Iran. The second respondent found that the applicant simply amended his evidence in order to strengthen his claim for protection, resulting in a deterioration of the applicant’s overall credibility. The second respondent’s reasons provide several more instances, which in aggregate raised significant concerns about the applicant’s credibility for the second respondent.
The second respondent also considered the information provided in the invalid “permanent protection” visa application. Some of that evidence contributed to the findings of inconsistency and some corroborated the applicant’s claims, such as being detained by the authorities in Iran. The second respondent accepted that the applicant was self-employed and involved in trade between Iraq and Iran and in his later life trading agricultural products such as live sheep. It accepted that the applicant regularly travelled between Iran and Iraq for this business.
The second respondent did not accept that the applicant often socialised with the fruit shop owner with whom the applicant claimed to be friends and about whom the applicant claimed to have been questioned and persecuted by the Iranian authorities. It did not accept that he was perceived to be a close friend or associate of this person or of his son, a supposed member of the Komala Party. It did however accept the applicant’s evidence that “he struck up an acquaintanceship” with this person.
The second respondent accepted the applicant had a friend who was a photographer for and a member of the Komala Party. Due to inconsistencies in the applicant’s description of this person, the second respondent did not accept that this friend was “head of secretariat” as the applicant had claimed in a caption to a submitted photograph. It further did not accept that any of the applicant’s friends associated with the Komala Party were high-profile members.
The applicant claimed in his protection visa interview that he was not politically involved with the Komala Party. The second respondent accepted this claim. It considered this claim in favour of inconsistent assertions contained in a letter from a representative of the “Representation of Komala Abroad” which suggested the applicant participated in “democratic movements in Iran and Iraq”.
The second respondent had reference to several documents pertaining to Iran’s interests in Kurdish politics in Iraq as well as some news articles provided by the applicant and, although placing limited weight thereon, accepted the premise that the Iranian regime sought to influence Kurdish politics and there was potential that members of Kurdish political parties might be targeted.
It further did not accept a number of the applicant’s claims, including that:
a)the applicant was questioned about his association with his friends;
b)the applicant was forced to give an undertaking to the Revolutionary Court to work for the Iranian authorities by providing information on people, or the activities of people, he knew were affiliated with or members of the Komala Party;
c)Iranian officials withheld the applicant’s identification and business documents ostensibly required to carry out his undertaking;
d)the applicant was detained by the Iranian authorities for any reason;
e)the applicant attempted to move to Sulaimaniya, but was prevented from doing so by local authorities due to his ethnicity, pressure from Iranian authorities or any other reason; or
f)the applicant transferred title to his home to his siblings due to fear of confiscation by the Kurdish and/or Iranian authorities; and
g)the Iranian authorities contacted any member of the applicant’s family for any reason associated with the applicant after he left Iraq.
On the basis of the material before it, and the serious concerns it had about the credibility of the applicant, the second respondent was not convinced that the applicant would have garnered the attention of Iranian authorities, nor was it satisfied that Iranian officials would seek to recruit the applicant on the basis of any affiliation with Kurdish politics. It also investigated alternative reasons for detainment or recruitment, such as his characteristics as an Iraqi Kurdish businessman travelling between the two nations and an ability to speak both Persian and Kurdish.
Ultimately, the second respondent found that the applicant was not associated with the Komala Party, and that he was not of any adverse interest to the Iranian authorities or any other group or person on the basis of his claims.
The second respondent then moved to consider the applicant’s claim to have converted to Christianity. The documentary evidence before the second respondent, including letters from the Church indicating his baptism, attendance and participation in church activities, was sufficient for the second respondent to accept his claim of conversion to Christianity.
Section 5H of the Act required the second respondent to consider whether the applicant held a “well-founded fear of persecution” defined by s.5J. The second respondent was not satisfied that the applicant would be of any adverse interest to any group or person or that he would be targeted on the basis of his claims should he return to Iraq.
As the applicant identified as a Christian and would wish to continue to practice his religion should he return to Iraq, the second respondent had regard to country information and Department of Foreign Affairs and Trade reports. That information suggested that Kurdistan, Iraq is seen as highly independent from the rest of Iraq and has passed laws unambiguously protecting religious freedoms but it cautioned that it might be too soon to determine the effectiveness of the laws.
Based on a careful consideration of country information, the second respondent found that the applicant did not meet the requirements of s.36(2)(a) as it was not satisfied that:
a)the applicant would face a real chance of harm due to:
i)his attendance at a small number of Komala Party events on a social basis;
ii)his acquaintance with people who were members of the Komala Party;
iii)his acquaintance with the father of a person who was imprisoned in Iran as a result of his political activities;
iv)him being an Iraqi businessman who may in future travel to Iran;
v)his conversion to Christianity;
vi)his family’s opposition to his conversion;
vii)ISIL or any other armed Sunni group;
viii)the security situation in Sulaimaniya;
b)the applicant would be unable to practise his faith by attending a church in KRG; and
c)the applicant would face difficulties accessing employment or services as a convert to Christianity in Sulaimaniya.
The second respondent then considered whether the applicant satisfied the complimentary protection criteria in s.36(2)(aa). It concluded that he did not, because there were no substantial grounds for believing that as a necessary and foreseeable consequence of being returned from Australia to Iraq, there was a real risk that the applicant would suffer significant harm.
The grounds of review
By his amended application, the applicant purports to raise four grounds of review. The first ground asserts that the second respondent fell into the same error as identified by the Full Court of the Federal Court of Australia in Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475. Grounds two and four refer to a failure to take into account relevant information. The third ground asserts a denial of procedural fairness in that the applicant was not allowed the opportunity to comment on a certain matter. However, in the course of oral submissions, counsel for the applicant informed the Court that only the first ground was pressed and that an error had been made when the amended application was filed. The original grounds were to be ruled through, however they were not. Counsel confirmed that it is only the newly added ground which was pressed.
The ground of review pressed is in the following terms:
The IAA engaged in jurisdictional error in that it made a decision that was unreasonable in that it made a decision that was similar to CRY16 v MIBP where it failed to provide an opportunity to the applicant to respond to its decision to make a different finding to the delegate with respect to the contrary findings with respect to his identity and country information.
The applicant contends that in the present case, where the second respondent was going to make findings about the applicant’s credibility in relation to matters that were accepted by the delegate, it was legally unreasonable for the second respondent not to consider getting documents or information from the applicant before it made those adverse findings against the applicant.
Legal unreasonableness is not limited to cases where the second respondent actually considers exercising its s.473DC(3) power but declines to exercise such a power. As CRY16 demonstrates, it can extend to a failure to consider the exercise of such power. Whether consideration of the s.473DC(3) power was necessary as a matter of legal reasonableness falls to be determined by reference to the particular circumstances of the case at hand.
The applicant’s ground of review provides that the second respondent should have invited the applicant to respond to different findings it made from the delegate with respect to the applicant’s “identity” and “country information”.
As the first respondent points out, however, the second respondent and delegate made identical findings on the applicant’s identity – both in respect of his name and his citizenship. Both found that the applicant was a national of Iraq and his claims were tested against that country. The delegate made a specific finding about the applicant’s name. Whilst the second respondent did not, the clear implication is that it accepted the name found by the delegate for the applicant.
Further, the applicant does not identify what different findings the second respondent made compared with those made by the delegate with respect to country information. He does not identify the particular country information in issue.
Counsel for the applicant argues:
13. The situation in this case is straight forward in identifying the divergence between the delegate’s decision and the IAA’s decision. The delegate made a straight forward decision. It was unable to be satisfied on the merits of the applicant’s case. The applicant then put forward further material, clarified information and made additional submissions.
14. The IAA then proceeded to ignore the additional submissions and material and take an alternative view to that of the delegate and find that not only was the applicant not credibly but that he so lacking in credibility that everything he said was for his own purpose and impacted the credibility of everything that he said. Not only was the IAA not satisfied that the applicant was not taken before the Revolutionary Court it was now no longer even satisfied that he was even arrested. It is clear that the IAA even has doubts that the applicant is even from Iraq and only makes that finding grudgingly.
15. This is a clear case where not only ought the IAA have allowed the further information that it rejected to have been considered – particularly all of the references that it rejected given its ultimate findings now turned to the newly opened adverse basis of lack of credibility which was not the basis of rejection by the delegate – but that, having considered the factual errors in the decision it was in any event necessary to allow as a matter of fairness the applicant the opportunity to any statements necessary to correct the record.
16. In order to have provided sufficient opportunity to the applicant to respond it would have been necessary to give notice to the applicant of the IAA’s intention to make a contrary finding to that of the delegate – given that it would have had a central bearing on the manner in which the entire case was determined. It would not have been sufficient merely for the Tribunal to have adopted an approach that it would have accepted just the documents that were submitted but it would have needed to give the applicant an opportunity to make specific submissions – this is necessary as a matter of fairness particularly when an applicant must deal with limitations on dealing with new evidence and an expectation that the IAA will not make a finding inconsistent with a delegate without giving notice.
There are some difficulties with the submissions. Both the delegate and the second respondent were unable to be satisfied of the merits of the applicant’s case. They made the same findings of fact about the applicant’s identity and nationality notwithstanding the difficulties that both expressed (the second respondent more so) with the false identities and false documents that had been used from time to time by the applicant. The second respondent expressed more concern with the applicant’s credibility by reason of his use of false documents, false identities and his failure, according to the second respondent, to provide an adequate explanation for that.
The suggestion that the second respondent ignored “the additional submissions and material” presumably provided by the applicant’s representative has no merit. It is apparent from the second respondent’s reasons, that it gave proper consideration to the submissions made by the applicant’s representative. It gave careful consideration to which of the material contained with those submissions the second respondent could pay regard and which, by reason of s.473DD, it could not. No argument was addressed to me to suggest that the second respondent had misapplied the requirements of s.473DD when considering the information provided by the applicant’s representative under cover of its letter dated 6 February, 2017.
The delegate and the second respondent made similar findings with respect to the applicant’s employment. The delegate accepted that the applicant was involved in an importing business and the business required him to travel between the Kurdistan region of Iraq and Iran and also to Armenia, Georgia and Turkey. The second respondent made similar findings. It accepted the applicant’s claims to be involved in trade between Iran and Iraq and that he was so employed until he travelled to Australia.
The delegate and the second respondent made similar findings about the applicant’s alleged involvement with the Komala Party of Iranian Kurdistan. Both found that the applicant had attended some Komala Party celebrations. The delegate made no other findings about the applicant’s involvement with the Komala Party. The second respondent found explicitly that he had no other involvement with the Komala party.
The delegate and the second respondent made different findings about the applicant’s claim to have been detained by Iranian security intelligence officers in 2012. The delegate found that the applicant was imprisoned for around two weeks in 2012 however found “the applicant’s account of the reasons for this imprisonment to be suspect”. It expressly found the applicant’s account of the reasons for his imprisonment and subsequent court appearance to not be credible. The delegate did not accept the applicant was forced to make an undertaking to spy on his friend and his family as the applicant had claimed. The second respondent, however, rejected the applicant’s claims about this matter in their entirety. The second respondent did not accept that the applicant was detained as he claimed and did not accept that Iranian authorities sought to recruit the applicant to collect information about the Komala party and his friend. It can be appreciated, then, that the delegate accepted the applicant’s claim to have been detained in 2012, but not for the reasons he asserted, not for the length of time he asserted and it expressly rejected that he was charged, imprisoned or attended the Revolutionary Court and was fined.
The applicant claimed that he had converted to Christianity since his arrival in Australia. The delegate accepted that the applicant had commenced attending a Christian church, had been baptised and converted his faith from Islam to Christianity. The second respondent accepted the same matters.
The delegate assessed Australia’s protection obligations towards the applicant on the basis of the applicant’s Christian religion and “perceived political opinion through his attendance at Komala celebrations. The second respondent assessed Australia’s protection obligations towards the applicant on the basis of his conversion to Christianity. As to his imputed political opinion, the second respondent said:
79. I have not accepted that the applicant was, at the time of his departure from Iraq, of any adverse interest to KRG or Iranian authorities, or any other group or person, for any reason associated with his attendance of Komala events in KRG, his friendship with members of the Komala Party in KRG, his relationship with B, the father of A, or as a Kurdish Iraqi business man. I have not accepted that he was perceived to be a member of, or associated with, the Komala Party or any other political party. There is no credible evidence before me to suggest that the applicant would be of any future adverse interest to Iranian authorities or any other group or person for these reasons on his return to Iraq.
80. Having considered the evidence before me, including the passage of time since the applicant’s attendance of Komala events in KRG and his interactions with S and B, and the limited and social nature of his connection to Komala Party events and members in the KRG and to B, I am not satisfied that the applicant would be of any adverse interest to any group or person, KRG or to Iranian authorities on these bases in future.
81. A discussed, I have not accepted that the applicant was targeted for recruitment by Iranian authorities in the past. Having regard to the applicant’s individual characteristics and to the information before me about the presence of large numbers of Iranian intelligence agents in the KRG as discussed above, I do not accept that there is a real chance that the applicant would be so targeted in future.
To the extent that the applicant now suggests that the second respondent ought to have “allowed the further information that it rejected to have been considered” no argument was made, either orally or in writing, to the effect that the second respondent had misapplied s.473DC or s.473DD. My own consideration of the second respondent’s reasons for decision do not reveal that the second respondent has approached that task in an erroneous way.
The applicant’s written submissions set out above describe the second respondent’s decision as being based on “the newly opened adverse basis of lack of credibility which was not the basis of rejection by the delegate”. But a comparison of the delegate’s reasons with the second respondent’s reasons demonstrates that there was only one matter that the applicant was accepted on by the delegate that he was not accepted on by the second respondent – namely his detention in 2012. Even then, the delegate’s acceptance of his detention was limited. She accepted that he was only detained for two weeks and she did not accept the reasons put forward by the applicant for his detention.
The present case is not one in which any failure by the second respondent to consider the exercise of its discretionary power in s.473DC(3), or to exercise that power, was legally unreasonable. The applicant had the opportunity to advance his claims before the first respondent’s delegate. He did so in the statement provided in support of his visa application and the two visa application interviews. This is not a case in which the second respondent knew that it did not have, but the applicant was likely to have, necessary material on a new issue.
The circumstances in this case can be distinguished from those in CRY16 and Minister for Immigration and Border Protection v DZU16 (2018) 253 FCR 526. Unlike those cases, this is not a case where the applicant suggests that the relevant issue that is the subject of differing findings between the second respondent and the delegate was not a live issue at the delegate’s interview. It plainly was. Moreover, the applicant does not suggest that he was not given an opportunity to fully present his case before the delegate on the relevant issues. This is not a case where the applicant could not deal with the specific issue meaningfully without it being specifically identified to him. The issues dealt with by the delegate and the second respondent were those that the applicant could not have been under any doubt that he was required to address and which he could, in a very direct and specific way, address before both the delegate and the second respondent.
I am not satisfied that the second respondent’s apparent failure to consider the exercise of the s.473DC(3) power to enable the applicant to address the specific reservations it had about the applicant’s credibility or the prospective finding it intended to make that was different to that made by the delegate amounted to legal unreasonableness.
Conclusion
In my view, the second respondent’s decision is not impeachable for legal unreasonableness in the way in which contended for by the applicant. The second respondent’s decision is properly categorised as a privative clause decision that is not reviewable by this Court.
The amended application must be dismissed with costs.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 16 November, 2018.
Date: 16 November, 2018
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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