FFR19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 3
•20 September 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FFR19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 3
File number(s): SYG 3451 of 2019 Judgment of: JUDGE DRIVER Date of judgment: 20 September 2021 Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of protection visas – applicants claiming a fear of harm in Iran – applicants not believed for the most part and other fears found not to be well-founded – whether the Tribunal decision is unreasonable, was affected by a failure to comply with a Ministerial direction or whether the Tribunal failed to consider properly significant evidence considered – no jurisdictional error. Legislation: Migration Act 1958 (Cth) ss 36, 499 Cases cited: AYC18 v Minister for Immigration & Anor (No 2) [2020] FCCA 1637
BDY18 v Minister for Immigration and Border Protection (2020) 273 FCR 170
BMP15 v Minister for Immigration and Border Protection [2018] FCA 1291
BQL15 v Minister for Immigration and Border Protection[2018] FCAFC 104
Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352
Cockrell v Minister for Immigration and Citizenship[2008] FCAFC 160; (2008) 171 FCR 345
Demillo v Minister for Immigration and Border Protection[2013] FCAFC 134; (2013) 139 ALD 29
EGH19 v Minister for Home Affairs (No 2)[2021] FCA 903
Fattah v Minister for Home Affairs (2019) 268 FCR 33
Minister for Home Affairs v Omar(2019) 272 FCR 589
Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431
Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v Obele(2010) 119 ALD 358
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v SZRKT[2013] FCA 317; (2013) 212 FCR 99
Minister for Immigration and Border Protection v SZVFW (2018) 92 ALJR 713
Paerau v Minister for Immigration and Border Protection[2014] FCAFC 28; (2014) 219 FCR 504
PQSM v Minister for Home Affairs[2020] FCAFC 125
Rokobatini v Minister for Immigration and Multicultural Affairs [1999] FCA 1238; (1999) 90 FCR 583
Uelese v Minister for Immigration and Border Protection [2015] HCA 15; (2015) 256 CLR 203
Vo v Minister for Home Affairs [2019] FCAFC 108
Williams v Minister for Immigration and Border Protection[2014] FCA 674; (2014) 226 FCR 112
Division: Division 2 General Federal Law Number of paragraphs: 79 Date of last submission/s: 27 August 2021 Date of hearing: 10 August 2021 Place: Sydney Counsel for the Applicants: Mr D Godwin Solicitor for the Applicants: Brett Slater Solicitors Counsel for the Applicants: Mr T Liu Solicitor for the Applicants: Australian Government Solicitor ORDERS
SYG 3451 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FFR19
First Applicant
FFS19
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE DRIVER
DATE OF ORDER:
20 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.The application as amended by leave granted on 10 August 2021 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE DRIVER:
INTRODUCTION AND BACKGROUND
The applicants seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 22 November 2019. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant protection visas to the applicants.
The following statement of background facts is derived from submissions filed by the respondents on 26 July 2021.
The applicants are husband and wife and are citizens of Iran. On 24 March 2015, the applicants applied for protection visas. Both applicants raised protection claims, although the second applicant was listed as a member of the family unit on the first applicant’s visa application.
On 10 November 2016, the delegate refused to grant the applicants protection visas. On 1 December 2016, the applicants sought merits review of the delegate’s decision in the Tribunal. On 9 September 2019, the applicants appeared before the Tribunal. On 22 November 2019, the Tribunal affirmed the delegate’s decision.
The Tribunal’s reasons for decision set out in detail[1] the evidence and submissions made by the applicants, both to the delegate and to the Tribunal. The Tribunal then considered the applicants’ claims,[2] which focused on their fears that they would be harmed if returned to Iran because of their political activities and background, and because the Basij[3] would target them.
[1] Court Book (CB) 460-468
[2] from CB 468
[3] a paramilitary volunteer militia forming part of the Islamic Revolutionary Guard Corps
The Tribunal’s reasons[4] noted the need for balance when considering an applicant’s account of events and in assessing details and inconsistencies in an applicant’s evidence. The Tribunal[5] acknowledged the first applicant’s medical evidence that his “GP was treating him for mental health issues” but noted that he “stated that he had no health issues that would preclude him from attending the hearing”. The Tribunal found that none of the “inconsistencies or implausibilities [it] noted…could be explained by any medical condition.” The Tribunal then stated at [80] that it found “the applicant’s evidence regarding his claims to lack credibility”.
[4] at [78]
[5] at [79]
The Tribunal[6] set out its reasons for rejecting the first applicant’s claims. The Tribunal first rejected the claim[7] that the Basij “zeroed in” on the first applicant because he wore a tie and green jumper at a time when he had alcohol in his car. The Tribunal gave[8] “little weight” to the first applicant’s evidence and gave “more weight to the implausibility of the claim itself”. Further, as the Tribunal did not accept that the claimed event occurred, it also rejected[9] the first applicant’s claim that “one of the Basijis visited his workplace every week or two for nearly two months.”
[6] at [81]-[98]
[7] at [82]
[8] at [83]
[9] at [84]
The Tribunal also did not accept the first applicant’s claim[10] that the Basij “wanted the financial information of [the applicant’s] company’s managers, including their accounts and property title deeds.” The Tribunal also found[11] this claim to be implausible because it was “well outside the remit of the Basij”. Moreover, the Tribunal found[12] that, as an ordinary employee, the first applicant would not have “obtained lines of credit and therefore needed access to individual’s (sic) personal financial information”. The Tribunal placed little weight on a letter provided by the first applicant indicating that he received a promotion in his job.
[10] at [86]
[11] at [87]
[12] at [89]
The Tribunal[13] also rejected the claim that the first applicant had incriminating photos of a Sufi leader and that there was a video saying that the second applicant had converted to the Baha’i faith. The Tribunal found[14] that the applicants were of no interest to the security authorities in Iran and under no threat because they had visas for refugee-accepting countries and because the first applicant successfully applied for a new Iranian passport without any problem. The Tribunal also concluded[15] that the first applicant had engaged in “anti-regime activity” after arriving in Australia for the sole purpose of strengthening his refugee claim and, therefore, was required by the Migration Act 1958 (Cth) (Migration Act) to disregard it.
[13] at [90]
[14] at [92]-[93]
[15] at [95]-[98]
As to the second applicant’s individual claims, the Tribunal did not accept[16] that she “would be imputed with having converted to the Baha’i faith or being a member of a Sufi movement” because it had earlier found that “no such raid ever occurred” and that no one was blackmailing the first applicant as claimed. The Tribunal[17] also did not accept the claim that the second applicant would be imputed with being politically active against the regime because of her family’s political background.
[16] at [99]
[17] at [100]
The Tribunal concluded[18] that, upon considering the claims “singularly and cumulatively”, “the applicants do not have a well-founded fear of persecution for any Convention reason”. Similarly, the Tribunal found[19] that the applicants did not satisfy the complementary protection criterion in s 36(2)(aa) of the Migration Act.
[18] at [104]
[19] at [108]
THE CURRENT PROCEEDINGS
These proceedings began with a show cause application filed on 30 December 2019. There was one ground in that application:
1.The Tribunal failed to form the requisite state of satisfaction according to law as it rejected the applicants' central claim that he had been detained by the Basij in October 2011 for buying alcohol for reasons that were not probative of that conclusion and relied upon the fact that the Basij had taken no action against the seller of the alcohol to exclude the possibility that he may have been seen buying the alcohol when there was no probative evidence that action had not been taken against the seller.
No amended application had been filed at the time this matter came before me for trial on 10 August 2021. However, shortly before the commencement of the hearing, the parties’ representatives emailed to my chambers proposed consent orders in the following terms:
1.Leave be granted to the Applicants to file and serve an amended application and written submissions addressing the amended applications by 4pm on 10 August 2021.
2. Leave be granted to the First Respondent to file and serve any further written submissions and evidence addressing the amended application by 24 August 2021.
3. The Applicants pay the First Respondent’s costs thrown away by reason of the amended application and for any further written submissions and evidence.
4. Leave be granted to the Applicants to file and serve any written submissions in reply by 31 August 2021.
5. By 3 September 2021, the parties approach the Chambers of Judge Driver if any party considers there to be a need for a further oral hearing.
I made the orders sought and the matter proceeded for a partial hearing on the ground in the original application.
The amended application was filed on 11 August 2021 and raises the following additional grounds:
2.The second respondent’s decision is affected by jurisdictional error as it has failed to comply with Ministerial Direction No 84.
Particulars
The Tribunal failed to take into account paragraph 3.60 of the DFAT Country Information Report - Iran 29 November 2013 which provided that “it is relatively common for youth that do not wear traditional Islamic dress to experience some form of low-level harassment from security authorities such as being subjected to searches, car checks and verbal warnings for dress and behaviour.”
3.The Second Respondent failed to give consideration or alternatively any active intellectual consideration to significant evidence;
Particulars
The Tribunal failed to consider or give any active consideration to the applicant’s advisers submission of 23 March 2015 and in particular that part of the submission which set out paragraph 3.60 of the DFAT Country Information Report - Iran 29 November 2013 which provided that “it is relatively common for youth that do not wear traditional Islamic dress to experience some form of low-level harassment from security authorities such as being subjected to searches, car checks and verbal warnings for dress and behaviour.”
In addition to the book of relevant documents filed on 31 March 2020, I received as evidence the affidavit of Rami Yousif made on 27 August 2020, to which is annexed a transcript of the hearing conducted by the Tribunal on 9 September 2019. A further affidavit by Mr Hongyi Gao, the Minister’s solicitor, was filed on 23 August 2021. That affidavit introduces a copy of Ministerial Direction No 84 as well as three Department of Foreign Affairs and Trade (DFAT) country reports on Iran. I have considered that material. Both the applicants and the Minister provided post hearing submissions, including submissions in reply by the applicants.
CONSIDERATION
Ground 1 – did the Tribunal fail to form the requisite state of satisfaction reasonably?
Applicants’ contentions
The first applicant claimed that in 2011 the Basij arrested him for the possession of alcohol and thereafter bribed him. This led to a series of other interactions with the Basij. The Tribunal did not accept that the Basij searched his car and found the alcohol. The Tribunal’s findings concerning the search of the first applicant’s car by the Basij are predicated on the coincidence that the first applicant’s car would have been chosen to be searched and the fact that it was not accepted that he had been seen buying the alcohol or that his attire attracted their attention.
In the first applicant’s statutory declaration he states:[20]
My problems with the authorities started on 27 Oct 2011, on the day I went to buy some alcohol. After making my purchase I was on my way of home; and stopped off at the chemist in our neighbourhood to buy my wife's medicine, which she had requested.
As it was a working day, I was wearing a suit and tie. Suddenly, a man came up to me and asked me why I was wearing a tie. He also asked if I knew that it was a sign of western culture, not acceptable in Iran.
I responded that it was none of his business and that I liked to wear it.
I purchased the medicine and was walking to my car when this same man and some other men accosted me. It was then that I discovered that they were with the Basij. They searched me, then took my car keys and searched my car. They found the alcohol bottles. l was then forced into the back seat of their vehicle, a Land Cruiser.
[20] CB 127 at [22]-[25]
In a submission to the Tribunal the first applicant observes:[21]
As I mentioned before and explained in my interview, I am not sure what was the real reason for arresting me was, whether because of wearing a tie, a green sweater or even maybe they chased the man who sold the alcohol beverages to find me or maybe one of my colleague, or the seller, sold me out and I have no idea yet what was the real reason was for arresting me specifically. It could have be my green clothes drawing attention and after that, my rude behaviour to the man who was remanding me for wearing a tie that caused these troubles. Wearing a tie in Iran is not a crime and as far as I know, no one for wearing a tie had been arrested or condemned.
Wearing a tie was kind of obligatory policy at [redacted] Company. On the other hand, I had desired to wear a tie with my suit. So, I wore tie since I worked for [redacted] and during these 5 years when I went to work and then I came back to home or when I went to the chemist, shopping mall and pathology or etc..., Also, I carried many times the different beverage with myself to the party or celebrate and never ever anyone arrested me and reminded me when I appear with a tie in public.
…
Wearing a tie, maybe is not very common in my country but there are some people who still wear a tie in public. For example, the below image is one of the pictures from Mini MBA seminar at university in when my wife and I participated at this seminar, as you can see a few people wore a tie in this photo.
[21] CB 404
The Tribunal questioned the first applicant on this topic as follows:[22]
[22] Annexure A to the affidavit of Mr Yousif, Transcript page 11, line 26-page 13, line 44
[MEMBER]: Sorry. What were the circumstances of you being stopped for the alcohol? What were you doing? And how did they find it? And how much did you have?
INTERPRETER: I was - I parked my car in order to get medicine from a pharmacy and - and Basij came and searched my car and found alcohol in it.
[MEMBER]: What do you mean they searched your - why did they search your car?
INTERPRETER: I could not follow the answer - - -
[MEMBER]: Sure. Have another - - -
INTERPRETER: (indistinct) I do not know why, maybe because when I - at the time when I bought the alcohol they notice that, or maybe because the way I was dressed and with tie and so on, they targeted.
[MEMBER]: Why would they target you just because you're wearing a tie? It's not - it's not illegal to wear a tie in Iran, is it?
INTERPRETER: Okay. I don't know why but - but the day that - that I had this encounter with them it was the - the week of - of university students and - and - and so when I was walking to - been to the pharmacy to get my medicine, they came to me and said that the tie is a - is a - is a symbol of west, "Why are you wearing tie?"
[MEMBER]: Mm. Okay. If they saw you buying the alcohol why didn't they stop the person selling the alcohol? Surely if they're looking for bribes, he's going to have much more alcohol with him, if he's selling it, and probably going to get a bigger bribe from him. Why wouldn't they stop him rather than you?
INTERPRETER: I do not know why but it is not - it is not like they - that you go to a shop and to a bottle shop and buy, they come to your car and they give you a list of what - what - what spirit and alcoholic drinks they have and - and then you place an order and then they - and then they bring the - your - your order and place it in your car.
[MEMBER]: Mm'hm. So why didn't they arrest both of you? The person selling it and the person buying it, if that's - if they saw you buying alcohol, why didn't they arrest both of you?
INTERPRETER: I really do not know. I must say that it is - it is possible that somebody reported me because later on when I became - I befriended one of these Basij member and I say what happened, why was I targeted and so on. His answer was that, well it past and I'm not going to tell you.
[MEMBER]: So after they stop you for your tie, do they then go and search your car?
[THE FIRST APPLICANT]: No.
[MEMBER]: So if their issue is with you wearing a tie, why does that then lead to searching your car and why didn't they just tell you to take the tie off? Sorry? (A) it's not illegal to wear a tie in Iran.
[THE FIRST APPLICANT]: No.
[MEMBER]: So why did they - you know I just find it difficult to think why they would stop you randomly walking into a chemist, it's not a checkpoint, it's not - they've gone out of their way to do that. So if they're just trying to hassle you, why would they then decide right, we'll now search your car? There's no issue. Why would they do that? Sorry. And why would they think you had a car to search? Why didn't they think you'd just come off the metro or a bus or - seems strange.
INTERPRETER: I really do not know why. I don't have any idea why they stop me. I park my car and I was about to - I was walking toward the pharmacy and about to enter the pharmacy. I was stop and this person came and told me why you are wearing tie. Whereas in the past on many occasions, I was - I had tie on and - and I didn't face any - I didn't encounter any difficulty. So I ignore that person and - and I continued walking towards the pharmacy and I bought my pharmacy - my medicine and walked back toward my car. So - and - and then I notice when I was walking toward my car, I notice that the person is standing next to my car, when I - I open the car and so the - the person ask me, "Is this car - is this your car?" And I said, "Yes." So he wanted to have the documents with regard to car, registry documents that's - so the - the person who actually questioned me about my - about the tie was plain clothe[s] officer but the person who - who ask me for registration documents of the car and so on was - had Basij uniform on and - and that person told me that - that open the boot of the car.
[MEMBER]: Okay. And how much alcohol did you have?
INTERPRETER: I had beer and one bottle of wine and one bottle of whiskey and one bottle of vodka.
[MEMBER]: Mm'hm. Okay. And what about this bribe?
INTERPRETER: What - what did the member wants to know? The member want to know how much I paid.
[MEMBER]: Well, how'd it come about and who offered who or?
INTERPRETER: When they put me in their Landcruiser, they told me that "we have not yet reported this matter. If you cooperate with us, you will not be lashed or imprisoned". And I said, "What do you mean by cooperation?"
[MEMBER]: Mm'hm.
INTERPRETER: So - and then they put me - well, they took me to my own car and - and then they said that - that - well, they - you have to pay for this, you have to pay 10 million toman but - but we will - we will make it half, you can - you know if you pay 5 million toman we overlook this issue. I don't know how they came about this figure, maybe because of my car or the way I was dressed, or the type of watch I was wearing. I don't know.
The Tribunal’s reasons were[23]:
I find it incredibly coincidental that in a city of nine million people the applicant was zeroed in on by the Basij for a search of his boot at the very time he had alcohol there. I do not accept that it was because he was wearing a tie and a green jumper – even if I were to accept that he was wearing one it is not illegal and the member has seen Iranian men wearing ties on public transport in Tehran without eliciting any interest from people. Nor can I find any country information, nor was any provided to me that men wearing green jumpers were or are imputed with connections to the 2009 protest movement.
I also do not accept that they may have seen him buying the alcohol. Given the applicant described the method of purchasing alcohol it is reasonable to believe that the focus of the Basij would have been on the alcohol seller rather than the purchaser given the significantly larger stockpile they could have retrieved (and perhaps bribe they could have elicited) from the seller. I have taken into account what he claimed was correspondence from an attorney in Iran regarding his possible court case (folios 60-64) but lend them little weight. They could have been made on any home computer and I lend more weight to the implausibility of the claim itself – I also note that one letter contains reference to consultation over ‘wearing a tie in public’, which is not illegal in Iran.
Because I do not accept that this event occurred, it follows that he was never asked for a bribe nor that people sent by one of the Basijis visited his workplace every week or two for nearly two months. It made no sense as to what they were trying to achieve by random people coming to the car dealership.
(footnote omitted)
[23] CB 469 at [82]-[84]
The first applicant’s evidence was that the Basij had commented on his wearing a tie. This was the basis of his speculation that this may have been a reason for them searching his car.
The Tribunal rejected this explanation. The Tribunal member reasoned that he had travelled on public transport in Tehran and had seen people wearing ties.
In the delegate’s reasons, he observed:[24]
the sale of ties were banned in Iran after the 1979 revolution, as they were reportedly viewed as symbol of western decadence, and although often ignored, religious police have enforced the ban, and nearly all men in Iran do not wear ties.
(footnote omitted and applicant’s emphasis retained).
[24] CB 320
While this does not say wearing a tie is an offence it does say that selling them was banned so that it is not implausible that the wearing of a tie might attract suspicion.
The independent information supplied by the first applicant also suggested that religious police are now to enforce the ban on selling ties. The first applicant’s submissions to the Tribunal included the following:[25]
[25] CB 405-406
Please see some below evidence of wearing ties in Iran with English References:
A. (thfire.com) why Iranians don't Wear Ties?
620408 Case e But while ties are said to be prohibited by the country's supreme leader, some men wear them very occasionally, says Dr Andrew Newman, senior lecturer in the Department of Islamic and Middle Eastern Studies at the University of Edinburgh. Iranians on the other hand don't have any issue with foreigners wearing ties. They understand that they wear it as a mark of respect and hence they do not even mention about their rule.
B. (the guardian) Cutting ties: Iran moves to enforce ban on symbol of western decadence
had returned to boutiques and shops in the major cities under the reformist former president Mohammad Khatami, who relaxed many old restrictions. However, according to the semi-official lsna news agency, the religious police are now to enforce the often ignored ban.
“"Shops were banned from selling ties after the victory of the Islamic revolution but in recent years some vendors have once again started to sell them despite warnings by the responsible authorities in the police," lsna said. "The ban has never been pursued seriously and that's why ties sales have increased significantly in the clothes shops."
The applicants contend that the Tribunal member’s personal experience of seeing people wearing ties on public transport in Iran is not a solid basis for finding that a claim that wearing a tie attracted the attention of the Basij was implausible. The Tribunal member’s personal observations may have been a sound basis to support the finding of implausibility if he had observed that nearly everyone was wearing a tie, but that is not suggested. The implausibility assessment is said to be flawed as it relies on the fact that wearing a tie is not illegal when there was no claim that it was, and there was information that confirmed that the selling of ties was illegal and wearing them uncommon amongst Iranians. Furthermore, the information also indicated that the religious police were assigned a role in monitoring the law prohibiting the selling of ties.
The first applicant also speculated that the Basij may have been interested in him and searched his car because he was also wearing a green jumper and it was “week of university students”. The Tribunal rejected this as there was no independent information to suggest that wearing a green jumper in Iran imputed a connection to the protest movement.
In the delegate’s reasons, he observed:[26]
Furthermore, I have noted that the colour green is strongly associated with support of the ‘Green Movement’ (Persian: Jonbesh-e Sabz), a large opposition protest movement which rose up spontaneously in June 2009 against the apparently rigged re-election of Ahmadinejad as President, adopting the Green campaign colour of Mir Hussein Mousavi, who they perceived as being the true winner of the election.
(footnotes omitted)
[26] CB 320
Although the independent information cited by the delegate does not state a person wearing a green jumper in particular will be imputed with the profile of a supporter of the protest movement it does support the first applicant’s assertion that wearing green might have attracted attention.
The applicants contend that the Tribunal’s reliance upon the fact that there is no specific independent information about people wearing green jumpers being arrested in the circumstances is unreasonable.
The first applicant also speculated that he might have been seen buying the alcohol. The reason given by the Tribunal for not accepting that he might have been seen buying alcohol was that the seller had not been the focus of attention by the Basij. There is said to be no probative evidence that the seller had not been arrested or otherwise targeted by the Basij. It is a supposition by the Tribunal.
The applicants point out that the first applicant did not claim to have been arrested at the place he purchased the alcohol. Rather, he drove to a pharmacy and was arrested there. The Basij had a car so they could easily have followed the first applicant from where he purchased the alcohol. He did not claim that the alcohol seller was not arrested (although he may well have been). How would the first applicant know? The reasoning of the Tribunal that it was implausible that the first applicant had been seen buying alcohol because the supplier had not been the focus of attention at the time is said to be based upon pure supposition by the Tribunal member that no action was in fact taken against the seller. This is said to be wholly speculative.
The Tribunal also gave little weight to a corroborating letter and a document of appointment sent from the first applicant’s lawyer in Iran as it allegedly could have been created on any home computer. The letters are reproduced at CB 424 and 425. The Persian originals are on letterhead, and one is on watermarked paper. One is partially handwritten and the other wholly handwritten. The applicants contend that the original documents could not be readily generated on a home computer. The first applicant’s adviser offered to provide the originals to the Tribunal for its inspection[27] however this was not required by the Tribunal.
[27] CB 445-446
The Tribunal states it prefers to rely upon the implausibility of the claim itself. However, as explained above, the applicants submit that the reasons given for the implausibility are unreasonable. The Tribunal member also points to the fact that the lawyer’s letter refers to wearing a tie in public, but the first applicant never said wearing a tie was an offence, but it was a part of the surrounding circumstance of the detention for alcohol possession.
The rejection of the first applicant’s claim that he had been detained for possessing alcohol is said to have been pivotal to the rejection of the rest of his claims. The rejection of the October 2011 incident took central place in the Tribunal’s decision.
The position is said to be comparable to that where a Tribunal has relied upon a minor inconsistency of fact to reject the whole of a person’s evidence on credibility grounds. In Vo v Minister for Home Affairs[28] the Court explained:
It is for the Tribunal to reach conclusions about credibility and unreasonableness is not shown by complaints about credibility findings alone, but may be demonstrated where a finding on credit on an objectively minor matter of fact is used as a basis for rejecting the entirety of the claimant’s evidence (a conclusion to be reached with a high degree of caution): CQG15 v Minister for Immigration and Border Protection[2016] FCAFC 146; (2016) 253 FCR 496 at [40]‑[45] and DAO16 v Minister for Immigration and Border Protection[2018] FCAFC 2 ; (2018) 258 FCR 175 at [30].
[28] [2019] FCAFC 108 at [43(4)] per Derrington, Banks-Smith and Colvin JJ
This was repeated by the Full Federal Court in BDY18 v Minister for Immigration and Border Protection[29].
[29] (2020) 273 FCR 170 at [30]
Minister’s contentions
The applicants (by the first ground of review), along with their written submissions, impugn [82]-[84] of the Tribunal’s reasons on the basis that its finding about the first applicant’s claim of being detained by the Basij for purchasing alcohol was “unreasonable”, for the following reasons:
(a)the Tribunal’s “implausibility assessment” concerning the first applicant’s claim that wearing a tie attracted the attention of the Basij was flawed[30] and that the Tribunal member’s observation that it is not illegal to wear ties in Iran and that he saw men wearing ties on public transport in Tehran did not provide a proper basis for its finding;
(b)the Tribunal’s reliance on the lack of country information suggesting that wearing a green jumper would not have attracted attention was “unreasonable”[31], particularly where there was information to suggest that the colour green could be associated with an anti-regime political movement;
(c)the Tribunal erred in reasoning[32] that the focus of the Basij “would have been on the alcohol seller rather than the purchaser given the significantly larger stockpile they could have retrieved (and perhaps bribe they could have elicited) from the seller.” The applicants assert that there “is no probative evidence that the seller had not been arrested or otherwise targeted by the Basij. It is supposition by the Tribunal”[33]; and
(d)it was not open to the Tribunal to give “little weight” to a corroborating letter and a document of appointment from the first applicant’s lawyer in Iran based on a finding that it “could have been created on any home computer”[34].
[30] applicants’ submissions filed on 7 July 2021 at [12]
[31] applicants’ submissions filed on 7 July 2021 at [16]
[32] at [83]
[33] applicants’ submissions at [17] filed on 7 July 2021
[34] applicants’ submissions at [19] filed on 7 July 2021
The Minister submits that the Court should not accept these contentions.
In Fattah v Minister for Home Affairs[35], the Full Federal Court restated the applicable principles concerning legal unreasonableness and illogicality as follows: [36]
To discern illogicality (or irrationality) one must demonstrate that there is only one conclusion open on the evidence or that there is no logical connection between the evidence and the inferences drawn: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at 649 at [135] per Crennan and Bell JJ; Gupta v Minister for Immigration and Border Protection [2017] FCAFC 172; 255 FCR 486 (‘Gupta’) at [34] per Gilmour and Mortimer JJ; DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; 258 FCR 175 at [30] per Kenny, Kerr and Perry JJ. As to unreasonableness, this may appear in the decision-making process or merely from the outcome and one may ask whether the decision lacks an evident or intelligible justification: Gupta at [36] per Gilmour and Mortimer JJ; Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at [8] and [21] per Allsop CJ.
[35] (2019) 268 FCR 33
[36] at [45]
Further, if a decision-maker reaches a finding upon which reasonable minds could differ, there is no illogicality, irrationality or unreasonableness. [37] The decision would be “within a range of possible, acceptable outcomes”,[38] following Minister for Immigration and Citizenship v Li[39].
[37] Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [131] and [135] per Crennan and Bell JJ; also at [78] per Heydon J
[38] Minister for Immigration and Border Protection v SZVFW (2018) 92 ALJR 713 at [82] per Nettle and Gordon JJ
[39] (2013) 249 CLR 332 at [105] per Gageler J
The issue, therefore, is said to be whether the Tribunal’s rejection of the first applicant’s claim[40] had a rational basis. A fair reading of the Tribunal’s reasons is said to support the view that it did.
[40] at [82]-[83]
The Tribunal’s finding was that the first applicant’s claim that the Basij searched his car and found alcohol is said to have been implausible. The Tribunal made this finding because it was not satisfied that wearing a tie or a green jumper in public would have attracted sufficient attention such that “in a city of nine million people the applicant was zeroed in on by the Basij for a search of his boot at the very time he had alcohol there”.[41] In making this finding, it is said to have been open to the Tribunal to reason that it had observed people wearing ties in public without attracting undue attention and that wearing a tie itself is not illegal in Iran. The applicants submit[42] that they did not claim that wearing a tie was illegal but that “selling them was banned so that it is not implausible that the wearing of a tie might attract suspicion.” That may be so. However, the test for legal unreasonableness or illogicality is not whether an alternative inference was plausible, but rather whether there was only one inference or mode of reasoning available on the evidence and that the decision-maker fails to follow the only available course. The Minister submits that such a criticism does not apply here. The factual issue before the Tribunal was whether or not it was satisfied that the first applicant, out of everyone in Tehran, was “zeroed in on by the Basij” on the very day he had alcohol in his car. In that context, the Tribunal’s reasoning about the implausibility of the claim had a clear logical foundation.
[41] Tribunal’s reasons at [82], footnote omitted
[42] at [10] of their submissions filed on 7 July 2021
The same observation is said to apply to the Tribunal’s reasoning concerning the first applicant’s claim that he attracted attention from the Basij because he wore a green jumper. The Court may accept the applicants’ submission[43] that there was material (considered by the delegate) which supported the first applicant’s “assertion that wearing green might have attracted attention”. However, the Minister submits that the Court should not accept any contention that, in order to make a legally valid decision, the Tribunal was bound to accept that assertion. Moreover, simply because there is information supporting a different inference more favourable to the first applicant does not mean that the unfavourable inference drawn by the Tribunal (based on its observation that there was a lack of independent country information supporting the claim) was legally unreasonable.
[43] at [15] of their submissions filed on 7 July 2021
Further, the Tribunal’s reasoning[44] about whether the Basij would have focused on the “alcohol seller rather than the purchaser” followed, as the Tribunal observed, from the first applicant’s description of “the method of purchasing alcohol”. The context around this part of the Tribunal’s reasoning was that it did not accept that the Basij “may have seen [the first applicant] buying the alcohol”. Although the applicants criticise this part of the Tribunal’s reasoning as “supposition”, the Minister submits that a fair reading establishes that the Tribunal simply drew reasonable inferences as to whether the first applicant may have been seen buying alcohol. The Tribunal’s reasoning was that, if the Basij saw the first applicant buy alcohol, then it was more likely that their focus would have been on the seller rather than the purchaser, particularly if they were interested in extracting bribes (as the first applicant claimed).
[44] at [83]
Finally, the Minister submits that the Court should not accept the applicants’ submission that it was legally unreasonable for the Tribunal to give little weight to the first applicant’s documentary evidence. This is said to be particularly so where, for the reasons outlined above, the Tribunal’s reasoning about the implausibility of the first applicant’s claim was open to it. Accepting that as so, it was then open to the Tribunal[45] to give “more weight to the implausibility of the claim itself”. There was no requirement that the Tribunal give the applicant’s documentary evidence greater weight.
[45] at [83]
Resolution
I prefer the Minister’s submissions on the first ground. The first applicant, as is plain from the transcript of the Tribunal hearing, did not know and could not explain why he had apparently been targeted by the Basij for the possession of alcohol. In the absence of any knowledge, the first applicant speculated that his tie and jumper might have attracted attention, or he might have been seen purchasing the alcohol. The Tribunal did not find that speculation persuasive and, in the absence of any material knowledge, indulged in some speculation of its own. While that speculation is itself open to criticism it did not render the Tribunal’s decision making irrational or unreasonable. It was open to the Tribunal to conclude that, in the absence of any plausible explanation for the alleged targeting, it did not happen. That conclusion being open, the challenge to the decision on the ground of irrationality or unreasonableness fails.
The additional grounds
Applicants’ contentions
Under s 499 of the Migration Act, the Minister can make directions as to matters to be addressed in making decisions under the Migration Act. The Tribunal is bound to follow these directions[46]. In Uelese v Minister for Immigration and Border Protection[47] the High Court found jurisdictional error in a failure to comply with such a direction.
[46] section 499(2A)
[47] (2015) 256 CLR 203 at [64] and [68] per French CJ, Kiefel, Bell and Keane JJ. See also Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583 at [23] per Whitlam and Gyles JJ; Cockrell v Minister for Immigration and Citizenship(2008) 171 FCR 345 at [27]-[28]; Minister for Immigration and Citizenship v Obele(2010) 119 ALD 358 at [53] per Katzmann J; Demillo v Minister for Immigration and Border Protection(2013) 139 ALD 29; Paerau v Minister for Immigration and Border Protection(2014) 219 FCR 504; Williams v Minister for Immigration and Border Protection (2014) 226 FCR 112 (Mortimer J); PQSM v Minister for Home Affairs[2020] FCAFC 125 per Mortimer J at [36] with whom Banks-Smith and Jackson JJ agreed on that point (at [90]) and BQL15 v Minister for Immigration and Border Protection[2018] FCAFC 104
Ministerial Direction No 84 (Direction) was made under s 499 on 24 June 2019 and has effect from 25 June 2019. It replaced Ministerial Direction No 56 (dated 21 June 2013) to reflect changes to the citation of guidelines but did not make any substantive changes. The Direction requires decision-makers to take account of certain country information assessments prepared by DFAT, where relevant.
It flows from the Direction that the Minister regards the DFAT country reports to be authoritative.
The new Ground 2 as reproduced at [15] above is that the Tribunal’s decision is affected by jurisdictional error as it has failed to comply with Ministerial Direction No 84.
The event which the first applicant claimed gave rise to all his problems in Iran was the interaction with the Basij when he was wearing a suit and tie. He claimed he was questioned and had his car searched. The Tribunal found this to be totally implausible and the Tribunal relied upon the Tribunal’s own experience of seeing people on public transport in Iran wearing ties. No country information was referred to by the Tribunal in this assessment.
The applicants submit that whether it was common in Iran for people who are dressed in a western style to be subjected to searches, car checks and verbal warnings for dress was a central question being addressed by the Tribunal. The incident which the Tribunal was considering was asserted to have taken place in October 2011. The DFAT report which the applicants’ adviser extracted in his submission of 23 March 2015 is dated November 2013. It can thus be readily inferred that the DFAT report was addressing the situation in Iran over the preceding couple of years. The applicants submit that, given the relevance and currency of the report, express mention of this assessment would be expected in the weighing up process in determining whether the alleged event had taken place. There is no reference to it.
The need for express engagement with such material in the context of Direction 56 was emphasised by the Full Federal Court in BQL15[48]:
[48] at [18]-[19]
Considerable disquiet may nevertheless be expressed at the fact that compliance with the Ministerial Direction, being a direction with which the Tribunal “must comply”, was ultimately left to a process of implication. In expressing such disquiet, it may readily be accepted as a practical matter that:
compliance with a Ministerial direction is no mere formality. Ministerial directions are given not merely for the purpose (inter alia) of achieving consistency in decision-making but also serve as a useful touchstone for decision-makers to ensure that their task is undertaken in accordance with law.
It must also be necessarily and constantly recalled that:
the decisions made by the Tribunal, particularly with respect to protection visas, have the very real potential to fundamentally affect the liberty and personal well-being of those seeking protection. An applicant for refugee status, it has been said, is “engaged in an often desperate battle for freedom, if not life itself”: Abebe v Commonwealth[1999] HCA 14 at [191], [1999] HCA 14; (1999) 197 CLR 510 at 577 to 578 per Gummow and Hayne JJ.
The very real consequences flowing from a decision to refuse a protection visa means that a careful and thorough consideration of a visa applicant’s claims can never be sacrificed in the name of uniformity in decision-making or administrative expediency.
Insistence upon compliance with a Ministerial direction, it is respectfully considered, should not be left to an uncertain process of lawyers and courts drawing implications from ill-expressed administrative reasons. It is highly desirable, if not essential, that reasons clearly expose consideration being given to directions lawfully given by a Minister. Without insisting upon unnecessary formality, properly drafted reasons should disclose a consciousness of those matters set forth in any applicable Ministerial direction. Mere adherence to the statutory scheme does not, of itself, establish that there has been compliance with a Ministerial direction. A Ministerial direction ensures, in a very real sense, an additional safeguard or protection to those claiming protection – one level of protection is the necessity for a decision-maker to comply with the statutory scheme; the second level of protection is the necessity for a decision-maker to separately consider whether a decision reached “compl[ies]” with the relevant Ministerial directions.
In the reasons of the Tribunal there is a boilerplate paragraph reciting the terms of the Direction and making a general statement that the Direction has been followed by the Tribunal.[49] The applicants submit, however, that such a general statement cannot overcome a failure to engage with clearly relevant DFAT country information which speaks authoritatively on a factual issue which is critical to the matter being considered by the Tribunal.
[49] CB 459 [8]
Such a formulaic paragraph is said to be analogous to statements made in the context of considering representations made by applicants in visa revocation cases. It has been repeatedly held that a reference to the existence of representations is not in itself sufficient and there must be active engagement with their substance.[50]
[50] see Minister for Home Affairs v Omar (2019) 272 FCR 589 at [36(f)] –[41]
While there is reference in the Tribunal reasons to the 2018 DFAT report in relation to how failed asylum seekers[51] are treated on return to Iran there is no reference to the 2013 DFAT report which had been drawn to its attention by the applicants’ adviser.
[51] CB 472 fn 3 and 5
In Minister for Immigration and Border Protection v MZYTS[52] the Full Federal Court addressed a case where a submission was made by the applicant’s adviser which drew the Tribunal’s attention to recent country information. The country information was not referred to in the Tribunal’s reasons. At [48]-[50] and [52] the Court explained that in the circumstances a reference to that material in the weighing process was required:
The Minister’s submission was that this first question — whether the Tribunal has in fact ignored or overlooked any recent and significant material which is centrally relevant to the decision — can be answered by an inference to be drawn from the Tribunal’s reasons. He submitted the Court could not infer the Tribunal had ignored any such material. Rather, he submitted the Tribunal simply preferred other material which was probative of the question about what would happen to the visa applicant on return to Zimbabwe, as an “ordinary” MDC member and supporter.
The Court is entitled to take the reasons of the Tribunal as setting out the findings of fact the Tribunal itself considered material to its decision, and as reciting the evidence and other material which the Tribunal itself considered relevant to the findings it made: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 (Yusuf) at [10], [34], [68]. Representing as it does what the Tribunal itself considered important and material, what is present — and what is absent — from the reasons may in a given case enable a Court on review to find jurisdictional error: see Yusuf at [10], [44], [69].
We do not accept the Minister’s submission. The Tribunal’s reasons disclose no process of weighing evidence and preferring some over the other. In the context of two or more pieces of apparently pertinent, but contradictory, evidence an expression of a preference for some evidence over other evidence generally requires an articulation of the different effects of the evidence concerned, and then some indication as to why preference is given. All these are matters for the trier of fact. The absence from the recitation of country information of the material referred to in the post-hearing submissions is indicative of omission and ignoring, not weighing and preference.
…
In the present case, the issue is squarely whether the Tribunal’s reasons do identify the material questions of fact necessary for it to address the claims made by the visa applicant, and how the evidence and material it has set out may be used to infer it has, or has not, addressed those claims. It is not, as in SZGUR, a procedural issue. Further, the omission cannot be sensibly understood as a matter considered, but not mentioned, as contemplated by French CJ and Kiefel J at [31] of SZGUR. The issue here was, as we have explained above, an essential integer of the visa applicant’s claim; evidence of which was led to consolidate his claim and contradict information raised by the Tribunal at the hearing. In the particular circumstances of this claim, if the material had been considered, one could expect that it would be referred to, even if it were then rejected.
(emphasis in original)
[52] (2013) 230 FCR 431
It is submitted by the applicants that the submission of the adviser in this case and the country information it contained was of equivalent importance to that in MZYTS and the absence of reference to it is indicative of omission and ignorance. Thus, not only is there said to be a failure to comply with the Direction, there is also a failure to take into account critical evidence which went to a central issue[53] as described in the proposed Ground 3 as reproduced at [15] above.
[53] see also Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [111]-[114], [119]; EGH19 v Minister for Home Affairs (No 2)[2021] FCA 903 at [57]-[59]
How the Tribunal dealt with the claim is the focus of these proceedings and consideration of the new grounds is thus said to be in the interests of justice. These new grounds arise in substance from the existing Ground 1 as they are said to be a further expression of the inadequacy of the Tribunal’s reasons for finding the first applicant’s claim to be implausible. It is not uncommon for such a failure to be capable of being characterised as a jurisdictional error in a number of ways.
Minister’s contentions
The applicants’ essential argument for Grounds 2 and 3 is that the Tribunal failed to take into account country information (extracted at CB 7), being paragraph 3.60 from a DFAT country information report on Iran from 29 November 2013, and that this resulted in:
(a)non-compliance with the Direction and s 499 of the Migration Act, (Ground 2) and
(b)failure to consider “or give any active consideration to the applicant’s adviser’s submission of 23 March 2015” which set out paragraph 3.60 of the DFAT country information report (Ground 3).
The Minister submits that the Court should not accept these contentions.
As to Ground 2, the Direction[54] does not require that a decision-maker, such as the Tribunal in 2019, take into account a DFAT country information report on Iran from 2013. The relevant clause in the Direction provides that:
Where the Department of Foreign Affairs and Trade has prepared [a] country information assessment expressly for protection status determination processes, and that assessment is available to the decision maker, the decision maker must take into account that assessment, where relevant, in making their decision. The decision maker is not precluded from considering other relevant information about the country.
[54] see affidavit of Mr Gao, Annexure HG-1
The statutory context is that s 499 of the Migration Act empowers the Minister to give written directions to a person or body having functions or powers under that Migration Act, provided that the directions are about the performance of those functions or the exercise of those powers. Section 499(2A) of the Migration Act mandates that a person or body must comply with the directions. The Tribunal is such a body and accordingly must comply with any relevant direction[55].
[55] Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583 at 591, per Katz J
The applicants’ main argument is that compliance with the Direction in this case required the Tribunal to take into account the DFAT country information report on Iran from 2013. This submission, however, is said to overlook the fact that the 2013 DFAT report was not the operative report for the purposes of the Direction. The relevant DFAT country information report on Iran (from 2018, at the time of the Tribunal’s decision) notes[56] that “[t]his updated Country Information Report replaces the previous DFAT report on Iran published on 21 April 2016.” The 2016 DFAT report in turn replaced the 2013 report now relied on by the applicants.[57]
[56] at [1.5]
[57] see affidavit of Mr Gao at [6] and annexures HG-2 to HG-4
In BMP15 v Minister for Immigration and Border Protection[58] the Federal Court referred to the same paragraph noting the replacement of an earlier DFAT report with an updated report and observed that “in those circumstances, there is only one DFAT Report that must be taken into account in order to comply with Ministerial Direction No 56. At the time of the Tribunal’s decision, that was the 2015 DFAT Report.” In AYC18 v Minister for Immigration and Anor (No.2)[59] I referred with approval to O’Callaghan J’s statement. It is said to follow that the Tribunal may breach s 499 of the Migration Act and the applicable direction made under that provision if it fails to take into account the “one DFAT Report that must be taken into account”.
[58] [2018] FCA 1291 per O’Callaghan J at [33]
[59] [2020] FCCA 1637 at [92]-[93]
In this case, at the time of the Tribunal’s decision in 2019, the “only one DFAT Report that must be taken into account in order to comply with Ministerial Direction No [84]” was the 2018 DFAT report because that report replaced the earlier reports including the 2013 report which the applicants now rely on. As the applicants concede,[60] the Tribunal referred to the Direction, correctly summarising what it required, and then referred specifically to the 2018 DFAT report (at footnotes 3 and 5 to [103] and [105] of its reasons) where it was relevant.
[60] at [8] and [10] of their further written submissions filed on 10 August 2021
The Minister submits that this answers Ground 2 because it alleges that “the second respondent’s decision is affected by jurisdictional error as it has failed to comply with Ministerial Direction No 84”. For the reasons outlined above, there was no non-compliance as alleged because the obligation in the Direction did not attach to the 2013 DFAT report. The Tribunal took into account the DFAT report that the Direction required it to, where relevant.
As to Ground 3, contrary to the applicants’ submissions, the Minister submits that the Tribunal did not fail to consider or give “active consideration” to “significant evidence”. The Tribunal’s reasons[61], read fairly and in context, answer this ground as well. This is especially so where[62] Ground 3 “arise[s] in substance from the existing ground 1” because it is “a further expression of the inadequacy of the Tribunal’s reasons for finding the applicant’s claim to be implausible.” Therefore, it appears that the applicants’ contention is that, in dealing with the first applicant’s claim[63], the Tribunal was bound to consider a specific paragraph in an outdated DFAT report which did not address the first applicant’s specific claim about attracting adverse attention from the Basij because he wore a green jumper and a tie. The Minister submits that the Court should not accept this argument.
[61] at [82]
[62] as the applicants submit at [13] of their further written submissions filed on 10 August 2021
[63] at [82] of the Tribunal’s reasons
The requirement that the Tribunal engage in an active intellectual process does not impose upon it an obligation to refer to every piece of evidence and every contention in the reasons for decision[64]. In Minister for Immigration and Citizenship v Khadgi[65], the Full Federal Court stated that:
[a] decision-maker is entitled to be brief in his or her consideration of a matter which has little or no practical relevance to the circumstances of a particular case. A court would not necessarily infer from the failure of a decision-maker to expressly refer to such a matter in its reasons for decision that the matter had been overlooked.
[64] Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 at [45]
[65] (2010) 190 FCR 248 at [59]
In this case, the first applicant’s relevant specific claim was that the Basij targeted him on the day he had alcohol in his car because he was wearing a green jumper and a tie. The Tribunal’s assessment[66] demonstrates that it considered the particular circumstances of the claim as put but found it to be implausible. In that context, paragraph 3.60 of the 2013 DFAT report did not add anything to the first applicant’s specific claim. In other words, the general statements in the 2013 DFAT report, under the general heading “‘Westernised’ Iranians and ‘Immoral Behaviour’”, could not have affected the Tribunal’s finding, which centred on the first applicant’s specific claim about wearing a green jumper and a tie.
[66] at [81]-[83]
Moreover, the Tribunal referred to country information to support its finding. The Tribunal at [82] stated that it could not “find any country information, nor was any provided to [it] that men wearing green jumpers were or are imputed with connections to the 2009 protest movement.” Therefore, the Court should not find that the Tribunal failed to take into account “critical evidence” as the applicants suggest. The reference by the Tribunal[67] to reviewing “country information” but being unable to find any specific country information supporting the first applicant’s particular claim indicates that the Tribunal engaged in the required assessment but was simply not satisfied that the available country information supported the first applicant’s claim.
[67] at [82]
Finally, the present case is said to be unlike MZYTS, on which the applicants place considerable reliance. In MZYTS, the Tribunal’s error was that it “had not dealt with the first respondent’s claim as it had been advanced before the Tribunal”[68] in circumstances where the claim relied on up-to-date post-hearing country information. The applicants’ case here is the opposite. The Tribunal dealt with the applicant’s specific claim as advanced and was not required to then refer to general and apparently outdated country information submitted over four years prior to its decision.
[68] at [3]
Resolution
I prefer and adopt the Minister’s submissions concerning the additional grounds. These grounds face several serious obstacles. First, Ground 2 cannot in my view succeed in the face of the Federal Court decision in BMP15. In their submission in reply, the applicants suggest that that case was wrongly decided but, of course, that submission can only be made as a formality. In my view, I am bound by the decision in BMP15. In my view, there can be no breach of the Direction by failing to consider an outdated version of a DFAT country report, provided that the most recent country report has been considered. In the present case, it was.
Secondly, and notwithstanding the applicants’ reply submissions, in my view, the decision in MZYTS is distinguishable. Once again, the decision concerned a failure by the Tribunal to take account of the latest available information. In the present case, the material provided was twice superseded and related essentially to the risk faced by younger Iranians who followed western fashion and engaged in conduct considered “immoral” by Iranian religious authorities. In my view, that information has nothing of substance to say about the risk posed by wearing a suit and tie. Neither does that information bear in any material way on the question of whether wearing a green jumper, or more generally the colour green, might expose a person to a risk of harm.
I reject both of the additional grounds.
CONCLUSION
The applicants have failed to establish that the decision of the Tribunal 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 seventy-nine (79) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver. Associate:
Dated: 20 September 2021
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