Fiv18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2024] FedCFamC2G 297
•8 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FIV18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FedCFamC2G 297
File number(s): SYG 2884 of 2018 Judgment of: JUDGE D HUMPHREYS Date of judgment: 8 April 2024 Catchwords: MIGRATION - Safe Haven Enterprise Visa – Where the Authority failed to consider whether or not the applicant would engage in further political activity - Where there was inconsistencies in translated documents - Whether there was a failure by the Authority to seek new information pursuant to s 473DC- Whether the Authority was under an obligation to give reasons for the exercise of a procedural statutory discretionary power - application upheld Legislation: Migration Act 1958 (Cth) ss 5AAA, 5H, 5J, 36, 56, 473CB, 473DB, 473DC, 473DD Cases cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510
ABJ17 v Minister for Immigration and Border Protection (2018) 260 FCR 295
Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 79 ALJR 1142
Appellant S395/2002 v MIMIA (2003) 216 CLR 573
BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29
CCQ17 V MIBP [2018] FCA 1641
DFS16 v Minister for Home Affairs [2019] FCA 944
DST18 v Minister for Immigration [2020] FCCA 1813
DP117 v MHA (2019) 269 FCR 134
DHQ17 v Minister for Immigration and Border Protection [2019] FCA 1975
DQU16 v Minister for Home Affairs (2021) 273 CLR 1
DVO16 v MIBP (2021) 273 CLR 177
DZAEK v Minister for Immigration and Border Protection [2017] FCA 247
ETA17 v MICMA [2023] FedCFamC2G 512
EV119 v MICMSMA [2022] FCA 518
MIMIA v VWBA [2005] FCAFC 175
Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176
Minister for Immigration v Li (2013) 297 ALR 225
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11
Minister for Immigration and Citizenship v Lat (2006) 151 FCR 214
Minister for Immigration and Multicultural and Indigenous Affairs v SLGB (2004) 207 ALR 12
Minister for Immigration and Multicultural and Indigenous Affairs v VWBA [2005] FCAFC 175
M211 of 2003 v Minster for Immigration and Multicultural and Indigenous Affairs [2004] FCA 660
MZXHY v Minister for Immigration and Citizenship [ 2007] FCA 622
NABE v Minister for Immigration and Multicultural Affairs (No 2) (2004) 144 FCR 1
Sami v Minister for Immigration and Citizenship [2013] FCAFC 128
Division: Division 2 General Federal Law Number of paragraphs: 123 Date of last submission/s: 3 April 2024 Date of hearing: 3 April 2024 Place: Parramatta Counsel for the Applicant: Mr Mcdonald-Norman Solicitor for the Applicant: Varess Counsel for the Respondents: Ms Hooper Solicitor for the Respondents: MinterEllison ORDERS
SYG 2884 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FIV18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
8 APRIL 2024
THE COURT ORDERS THAT:
1.The application is upheld.
2.A writ of certiorari be issued, quashing the 7 September 2018 decision of the Second Respondent affirming the decision of a delegate of the first respondent to refuse to grant the applicant a protection visa.
3.A writ of mandamus be issued, remitting the matter to the Authority and requiring it, differently constituted to review the Delegate’s Decision according to law.
4.A writ of prohibition be issued, prohibiting the Minster and his delegates, servants and agents from acting upon or giving effect to the Authority’s Decision.
5.The name of the First Respondent is changed to ‘Minister for Immigration, Citizenship and Multicultural Affairs’.
6.The First Respondent is to pay the Applicants Costs fixed in the sum of $12,500.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE D HUMPHREYS
INTRODUCTION
The applicant is a citizen of Iran and of Kurdish descent.
The applicant applied for a Safe Haven Enterprise Visa (“SHEV”) received by the Department on 1 November 2016.
On 28 June 2018, a delegate of the Minister for Home Affairs (“delegate”) refused the SHEV application. On 9 July 2018, the Secretary of the Department referred the refusal decision to the Immigration Assessment Authority (“the Authority”) for review.
On 7 September 2018, the Authority affirmed the decision under review to refuse to grant the applicant a SHEV.
The applicant now seeks judicial review of that decision in this Court.
For the reasons below, the application must be upheld.
THE IMMIGRATION ASSESSMENT AUTHORITY’S DECISION
At the outset of the decision, the Authority provided a brief background of the SHEV application.
The Authority confirmed that it had had regard to the material referred to it by the Secretary at [4].
At [6], the Authority summarised the applicant’s claims for protection, as follows:
•He is an ethnic Kurd and a Shia Muslim who lived most of his life in Tehran.
•He fears persecution for his involvement in a demonstration against the Iranian authorities in the month of Muharram in 2009. The applicant claims that when he was 20, he participated in the protest as a spectator and but left the area when people started confronting the police. He claims that his image was recorded on security cameras or was in a YouTube video which led him to be identified by the authorities. He claims he was served with a letter from a Court in 2010 which did not specify the reason for attending court. He suspected it was related to the demonstration and he did not attend. Following the protection interview on 10 October 2017, he produced copies of notices to attend Court in 2011 and a Court document dated 12 May 2012 (with translations) containing a verdict and sentence for "Participation in demonstration and protest in election of 2009". At [21] of the decision record, the Authority notes the applicant claims that the Court decision record states he has been sentenced to 5 years in gaol, 74 lashes and a fine of 74 million Thoman.
•The applicant was fearful of being arrested after the demonstration and claims that he lived away from the family home, either in Qom or other districts of Tehran. to avoid being caught.
•He fears persecution for reasons of his Kurdish ethnicity. He claims that when he was 21, his Kurdish ethnicity caused him to be arrested and detained by police in Khorasan, Tehran on the suspicion of theft, that he was badly beaten and detained at the police station overnight. He claims that he and his friend, who was also detained, attended court the following day, where he was released on bail because his friend was Persian. The applicant also claims he suffered discrimination at school, employment and during his military service because of his ethnicity.
•He also claims that he will be arrested, imprisoned and severely punished on his return to Iran because of the court decision and because he fled Iran illegally on a false passport. He claims that he received the assistance of a Colonel in the Sepah to leave through the airport.
•While the applicant has not made an express claim that fears persecution in Iran on the grounds of being a non-practising Muslim, the delegate considered whether he has a fear of harm on the basis of his religious beliefs.
At [8], the Authority set out the components required by s 5J of the Migration Act 1958 (Cth) (“the Act”) in relation to a “well-founded fear of persecution”.
At [9], the Authority accepted that the applicant was an Iranian national and that Iran is/was the receiving country.
The applicant claimed that his fear of harm arose through his involvement in a protest against the Iranian government in December 2009, the month of Muharram (“Muharram demonstrations”). The Authority noted that the applicant did not refer to this incident in his August 2013 arrival interview, where he had claimed that he left Iran, inter alia, for reasons of general persecution, his Kurdish ethnicity, and the lack of opportunity to have a normal lifestyle in Iran. Further, in the arrival interview, the applicant stated that he had not been involved in any activities or protests against the government in response to a number of questions.
The applicant only referred to his involvement in the Muharram demonstrations in his protection claim application in October 2016. At [16], the Authority noted that there were inconsistencies with the accounts within his statutory declarations in October 2016 and October 2017, along with evidence brought forward in his October 2017 protection interview.
When asked to explain his reasons for not mentioning his involvement in the Muharram demonstrations, the applicant stated that he “was in an unfit and fragile mental condition on his arrival in Australia”, on account of his dangerous journey and had forgotten to mention a “lot of things”. Further to these reasons, the applicant claimed in his post interview statutory declaration that other detainees informed him that he would not be granted protection in Australia if it was discovered that he had been sentenced to imprisonment and physical punishment. The applicant claimed that when he met his migration agent in 2016, he was properly advised about his rights as an asylum seeker and was encouraged to disclose to Australian immigration authorities all of the facts pertaining to his past in Iran.
At [12], the Authority had regard to the Departmental Internal Review Report about the sinking of SIEV 794, which reported that 146 people were rescued and four people had died. The Authority considered the UNHCR Guidance Note on psychologically vulnerable applicants in the protection visa assessment process. In light of this guidance, the Authority accepted that the applicant’s journey by boat from Indonesia to Australia would have been traumatic.
The Authority noted that there had not been any accompanying psychological report or medical evidence that demonstrates that the applicant suffers from a mental disorder or condition which severely impairs memory. The applicant pointed to his mental health issues in his evidence and claimed that he “forgets information because of the problems that he has and the medication he is taking”.
At [13], the Authority accepted that the applicant may have been suffering from mental health issues as a result of his journey at his arrival interview. It was willing to accept that the applicant may have developed mental health issues since his arrival in Australia and was on medication which could have affected his memory.
The Authority was satisfied at the applicant’s explanation as to why he did not mention his involvement in the demonstration until he had made his protection claim. It found that the evidence given about his involvement in the Muharram demonstrations was credible. The Authority accepted that he had attended the protest.
In spite of these findings, the Authority highlighted that it still had concerns about the applicant’s claims over the events that he claims followed the protests.
The Authority had regard to country information pertaining to the Ashura Day protests in late December 2009 where “large-scale opposition protests” took place in the days leading up to 27 December 2009. Country information provided that the largest demonstration took place on 27 December 2009 and there were violent confrontations involving tens of thousands of protestors.
The Green Movement refers to the demonstrators who protested in 2009 and 2010. The Department of Foreign Affairs and Trade’s 2010 Country Information Report on Iran stated that security forces were involved in beating, harassing and arresting demonstrators during the Green Movement protests.
The Authority raised concerns with the applicant’s evidence about the Iranian authorities detecting his involvement in the demonstration and bringing charges against him, as there were inconsistencies and omissions in his evidence. Particularly, in his evidence about the timing and reason for his move to Qom, when he received his summons from the Court, his delay in disclosing evidence about the court documents and the verdict handed down.
In respect of the claims the applicant made to the Authority regarding his involvement in the demonstrations, the applicant:
·In his first statutory declaration in October 2016, the applicant gave evidence that he participated in a peaceful demonstration in Tehran in the month of Muharram in 2009. There was no further detail provided about this. The applicant claimed that he was fearful of being arrested and punished for participating in the protest and decided to go to Qom where he joined the Airforce Defence. He did not move back to Tehran until 2012.
·On 10 October 2017, at his protection interview, the applicant claimed that when he was on break from military service in Qom, a protest took place in Tehran. The applicant claimed that he was a spectator at the protest. When police arrived at the protest area, the applicant fled the area. The applicant claims his face and body were recorded on cameras. When pressed further the applicant explained that there is footage of the protest on YouTube, and he assumed that his image had also been recorded.
·The applicant claims he received a letter summoning him to attend Court two to three months after the protest, but it did not specify the reason for his attendance. The applicant feared that the Court summons was connected to his participation at the protest. He did not attend Court and instead moved to another district. The applicant claimed he grew tired of constantly being on the move evading the authorities, and he decided to leave the country two to three weeks prior to leaving Iran in 2013.
·In October 2017, after the protection interview, the applicant provided a second statutory declaration and copies of what he claimed were court documents. The applicant’s representative claimed that he had made an appointment with a psychologist to obtain a report about his current mental health which would be supplied to the Department. It is noted that no psychological report was obtained despite the applicant claiming that he sees the psychologist every week.
·In this second statutory declaration, the applicant claimed that he returned to military service in Qom after the demonstration, then returned to Tehran at the end of his military service in May 2010. The Authority noted that this was inconsistent with the first statutory declaration where the applicant stated he went to Qom to serve in the Airforce and lived there until 2012.
·Further, the applicant claimed he received a notification from the Penal Court of Tehran two months after his return to Tehran in and around July 2010. He was aware of other people who had participated in the protest being imprisoned, tortured or killed. He received two or three other notifications to attend hearings, all of which he did not attend. On 12 May 2012, he was served with the Court’s decision which sentenced him to five years imprisonment, 74 lashes and the payment of 23 million Thomann (approximately $837.00 AUD).
The Authority accepted that the applicant had taken part in the demonstration in Tehran in December 2009. The Authority was satisfied that he was involved as a passive observer only and he had left when confrontations with the police began.
In relation to the claim about his images being recorded at the protest by security cameras, the Authority noted that the applicant had only assumed that he had been captured on YouTube and did not provide documentary evidence to that effect. The Iran Human Rights Documentation Centre reported that images of deaths had been captured on cell phones and spread over the internet however even in this instance, the applicant’s evidence was based on an assumption, and he had not seen the YouTube video himself.
The Authority found there were inconsistencies raised about the timing and substance of the notifications the applicant claims to have received from the Penal Court of Tehran. The court documents provided after the protection interview consist of documents purporting to be from the Judiciary of Islamic Republic of Iran and from the Penal Court of Iran. The translations of the court documents reveal that the date of issue for the first document is dated 26 June 2011, 18 months after the protest.
The Authority concluded the court documents, if they are true records, do not corroborate the applicant’s evidence that he had received notifications from the Court in and around 2010. There was no explanation provided by the applicant for this. The Authority had regard to the UNHCR guidance on inconsistencies of time and place for vulnerable applicants being attributable to trauma. However, they did not accept that this failure to mention the Court notices was related to mental health issues.
The Authority found there were doubts as to the credibility of the applicant’s evidence about the content of the Court notifications. Had the court documents that he produced two weeks after the protection interview existed, the applicant would not have referred to them in such “vague and general terms”. Additionally, the Authority found it “implausible” that his brother in Iran could not have provided copies of the documents earlier.
The three Court notices specify that the reason for attendance is “[m]ainly for participation demonstration and objections on election of year 1388 (2009)”. The applicant would have had to have known the nature of the charges at the time of his protection interview as the documents suggest he received the Court notices in 2011. The applicant did not refer to the Court verdict and sentences in his visa application or protection interview. He claims he was made aware of the verdict in May 2012.
The UK Home Office Country Policy and Information Note on Iran annexes a report from an Iranian legal expert report in 2017 which indicated that the “frequency of forgery and producing…fraudulent documents in general is high in Iran”. The report set out what details could distinguish an authentic document from a counterfeit:
[…] in addition to the aforesaid material presentation, minute details and procedural rules associated with summoning and service of process, it is basically the garbled and stilted language, poor legal reasoning, wrong article numbers, over harsh punishments, wrong jurisdiction…There is also usually misspelling specially in regards to legal terminology and boilerplate legalese expression”.
Guided by this country information, the Authority noted that the applicant’s evidence of the Court hearing notifications referred to “section 76 of Penal Court of Iran”. There was no evidence of the existence of a “Penal Court” within the country information. The Home Office Information on Iran stated that there were three types of courts in Iran: Public, Clerical and Revolutionary. The DFAT report stated that human rights defenders and those arrested in protests were usually tried in the Revolutionary Courts.
Further, the Authority highlighted at [29] other inconsistences within the documents that contributed to their concerns over the authenticity of the Court notices. These were:
•The first notification issued on 05/04/1390 (26/06/2011) states that the date of hearing is 30/06/1390 (21/09/2011). However, the second notification issued on 20/06/1390 (11/09/2011) also has a hearing date of 30/06/1390 (21/06/2011) and says that the reason for attendance includes being absent in hearing of 15/04/1390 (05/07/2011). The first hearing notice does not give the first hearing date as 05/07/2011.
•The applicant's first name is missing from the first hearing notice issued on 20/06/1390 (26/06/2011).
•There are differences between the terminology used in the three court hearing notices, and in the verdict:
•Referring to the Judiciary of Islamic Republic of Iran (3 hearing notices) and Justice Administration of Islamic Republic of Iran (verdict)
•Referring to Section 76 of penal court of Tehran (3 hearing notices) and Section 76 Court of justice of Tehran Province (verdict)
•Calling the same number a File number (3 hearing notices) and Application number (verdict)
•Calling the same number a Section's archive number (3 hearing notices) and Office archive number (verdict)
The Authority noted at [30] that the translations were undertaken by the applicant’s migration agent, who is an accredited translator of Dari, not Farsi. Considering that all the translations were prepared by the same person, the Authority found it more likely the differences in terminology were contained in the documents themselves.
At [31], the Authority was not satisfied that the court documents were authentic or that the applicant was charged or convicted with offences relating to the demonstration. Further, the Authority found that the applicant would not be arrested or punished for these offences if he were to return to Iran and he would not face harm from the Iranian authorities for his past involvement in the demonstration or political opinions held.
The Authority noted that the length of time that passed between the protests in 2009 and the applicant’s departure in 2013 did not lend itself to the implication that the applicant received any adverse attention in that time or that he was known to the authorities.
The Authority noted that there is a difference between the 2016 and 2018 DFAT Country information reports. The latter report suggests that the situation in regard to the monitoring and harassment of high-profile activists and members of the Green Movement, along with lower profile activists who are detained and prosecuted has changed. As such, it is “highly unlikely” that those arrested at that time for participating in protests would remain imprisoned or would face continuing surveillance and harassment. The Authority noted that the applicant did not have an active organisational role in the Green Movement and found that he would not receive any adverse attention for his once-off participation. Further, he had not expressed an intention or desire to engage in further political activity. The Authority found that there was not a real chance that he would face harm on the grounds of his political opinion in the reasonably foreseeable future.
The Authority was not satisfied that the applicant fled Iran on a fake passport with the assistance of a Colonel in Sepah and on his return he would be arrested, imprisoned, tortured and killed. The applicant provided inconsistent evidence in his protection interview as to when he decided to leave Iran. He had originally claimed that he tried to leave the country after receiving the letter from the Court in 2010, but in later evidence said that he decided to leave two to three weeks before leaving Iran.
The applicant also claimed protection on the basis that he is an ethnic Kurd, and he may be persecuted on return to Iran. The Authority found at [34], the applicant provided “credible evidence”, “pertaining to his various experiences and treatment because of his Kurdish ethnicity”, specifically when he was beaten by police and detained overnight on suspicion of theft after they had realised his Kurdish identity. He claimed that he was also abused by the judge in relation to this incident for being a Kurd, but was released on three months bail. Further, the applicant claimed he was arrested in a park with his friends and would have provided court documents to this effect, but the police had removed these records from their archives.
These past interactions did not satisfy the Authority that the applicant would be of any ongoing interest to the Iranian authorities. The Authority had regard to country information about the problems and discrimination faced by Kurds in Iran. The DFAT reports confirmed that Kurds can be the subject of societal discrimination, but this discrimination did not rise to such a level that it would be the result of official or state-directed policies or that it was coupled with community-led violence.
A U.S Department of State report detailed that Kurds were also disproportionately targeted for arbitrary arrest, prolonged detention, and physical abuse. An Amnesty International report highlighted that Kurds were disadvantaged at a sociocultural level as well.
Despite the available country information detailing the discrimination faced by Kurds, DFAT considered that most Iranian Kurds do not come to the attention of authorities or are only subject to low levels of adverse attention. There is an increased risk of this however for Iranian Kurds who have publicly asserted cultural or political rights that are perceived to “threaten constitutional foundations or the territorial integrity of the Islamic Republic” (at [36]).
The Authority found that there was only a remote chance that the applicant would be susceptible to experiencing similar discriminatory experiences on account of his ethnicity if he were to return to Iran. The incident with the police was found to be isolated. Given that the applicant does not hold any political associations and has claimed to not be involved with any Kurdish political groups, the Authority found it is unlikely he would come to the attention of the authorities on the grounds of real or imputed political opinion. With regard to the country information detailing the hardships faced by Kurds, the Authority noted that this is not at a level that would amount to serious harm, in the applicant’s circumstances.
At [38], it was held that the applicant was not likely to be affected by economic neglect by state authorities, since he lived in Tehran which is not a minority populated region. The applicant has family still living in Tehran. The applicant would also be able to return and find employment in Iran. The Authority found that there was not a real chance that the applicant would face harm on the grounds of his ethnicity.
The Authority also considered whether the applicant would be persecuted for being a non-practicing Muslim on his return to Iran, although the applicant did not make an explicit claim on this basis. The applicant noted that it was not possible for him to practice his religion in Australia, and he had not seriously prayed or fasted since he moved to Australia, but he also believed in God. The Authority found it was unclear on the evidence whether the applicant does not want to practice his religion or if he is not practising it within Australia because of practical difficulties.
Based on available country information regarding the prevalence of non-practicing Muslims in Iran, the Authority found that non-attendance at mosques would not arouse any suspicion in Iran as many “do not regularly attend mosques” (at [39]). A survey undertaken showed that there were low levels of religious participation in Iran.
Further, country information showed that non-practicing Muslims form a large part of the population of Iranian cities and in the function of their daily lives, they were rarely called on to answer direct questions about Muslim religious practice or pressured to observe Muslim precepts. DFAT considered it unlikely for the government to monitor religious observance by Iranians.
At [41], the Authority was not satisfied that the applicant would attract any adverse attention if he chose not to practice his religion and he would not face a real chance of harm if he was a non-practising Muslim in Iran.
The Authority also had regard to whether the applicant would be harmed on the basis of being a failed asylum seeker returning from a Western Country although the applicant did not put forward the claim.
The applicant claimed that his passport was taken by police in Indonesia. Available country information indicated that Iran has historically refused to issue travel documents for the involuntary return of its citizens from abroad. In the applicant’s circumstances, if he were to return to Iran it would have to be a voluntary return. The applicant would also be returning as a failed asylum seeker. DFAT information stated that, according to international observers, Iranian authorities paid little attention to failed asylum seekers on their return to Iran, and did not show much interest in prosecuting them for activities conducted outside Iran. Iranian authorities were more likely to question a voluntary returnee if they had already attracted official attention.
The applicant’s evidence did not lead the Authority to find that they would be a person of interest or that he held a profile such that he would come to the attention of authorities if he returned to Iran. The Authority was not satisfied that the applicant was likely to suffer any harm if he returned to Iran as a failed asylum seeker who sought protection in a Western Country.
As part of the complementary protection assessment, the Authority had regard to applicant’s potential to face harm related to his mental health problems if he were to return to Iran. There was no evidence provided about the mental health issues and whether he would be unable to receive treatment in Iran if he requires it. Country information provided suggests that Iran is advance in terms of health and education and the country has fully integrated mental health care into the national primary care structure. The Authority found that the applicant would be able to access medical support if he required it and he would not face a real chance of harm on this ground.
At [46], the Authority held that the applicant did not meet the requirements of the definition of a refugee in s 5H(1) of the Act and did not meet s 36(2)(a) of the Act.
In finalising their complementary protection assessment, at [49] the Authority found that there is no real risk that the applicant will suffer harm in connection with the following matters:
·his one-off participation in a demonstration in Tehran in 2009, his political opinion more broadly or for leaving the country illegally;
·returning to Iran as a failed asylum seeker from a western country;
·being a non-practicing Muslim; and
·his mental health issues.
At [50], the Authority was satisfied that he was an Iranian Kurd who had experienced discrimination based on his ethnicity and may continue to suffer harassment and discrimination on his return. He could safely return to live in Tehran with siblings and could find employment as a welder and labourer. Since he identified as a Shia Muslim, he would not face the same discrimination that Kurds who are Sunni Muslims would suffer. The applicant would not come to the attention of authorities due to political beliefs and associations.
The Authority accordingly affirmed the decision not to grant the applicant a protection visa.
GROUNDS OF JUDICIAL REVIEW
The applicant’s grounds of judicial review are contained within a Further Amended Application filed on 23 June 2021. They are as follows: (less particulars)
1.The second respondent (Authority) failed to have regard to a relevant consideration or, in the alternative, incorrectly interpreted or
theappliedcablethe relevant law by failing to consider the reasons why the applicant would not engage in further political activity in Iran.2.The Authority reached credibility findings by reference, materially, to false factual premises concerning a critical document, causing its decision to be affected by jurisdictional error.
THE EVIDENCE
The evidence before the Authority consisted of:
·Copies of three court summons issued by a court in Tehran (CB 131,133,135);
·Translations of the Penal Notices prepared by the applicant’s former representative (CB 130,132,134);
·Further statutory declaration by the applicant dated 25 October 2017 (CB 137-140);
·Applicant’s statement summarising claims for his SHEV application (CB 68-73); and
·Transcript of the SHEV interview within the Affidavit of Patrice Loretta O’Shea affirmed 3 April 2019.
THE APPLICANT’S SUBMISSIONS
Ground one
Ground one is a contention that the Authority failed to consider why the applicant would not engage in further political activity in Iran and fell into jurisdictional error.
Counsel for the applicant submitted that the applicant was an “opponent of the Iranian regime”. It was submitted that the Authority failed to consider if the applicant would not engage in political activity primarily “because of the risk that he would that he would be harmed as a result”.
The applicant was outspoken about his political convictions, opposition to the government of Iran and desire for political reform. This evidence is contained in the applicant’s SHEV Statement and Interview and can be summarised as follows:
·The applicant stated that he had participated in a peaceful demonstration in Tehran in 2009 (CB 70).
·The applicant explained his political views and his fear of harm on account of those views (CB 72): “I will be harmed in Iran for my imputed political and social opinion. I do not have any political associations but I do not favour Iran’s strict law. I favour freedom and liberty, I wish to live and let people live without dictating any rules or restrictions. I want to be able to choose what to wear, what to say and what to eat or drink”.
·The applicant also spoke about the political convictions of the other demonstrators who took part in the Muharram protests and explained his own ideals about the Iranian government (Transcript of the SHEV Interview p 13).
Based on this evidence, the Authority ultimately found that the applicant did not express an intention or desire to engage in further political activity. This was a failure by the Authority to consider whether this lack of intention or desire “was the result of the risk of persecution for these beliefs”. The Authority misconstrued or misapplied the relevant law by not explicitly asking the applicant “why” he would lack the intention to engage in political activity.
The applicant relied upon Appellant S395/2002 v MIMIA (2003) 216 CLR 573 (“Appellant S395”) which is summarised in MIMIA v VWBA [2005] FCAFC 175 at [6], being a finding that if a decision maker finds that a person “will act in a way that will reduce a risk of persecution that would otherwise have been well-founded”, that decision maker “must consider why the person will act in that way”.
McHugh and Kirby JJ at [43] of Appellant S395 explained the following:
To determine the issue of real chance without determining whether the modified conduct was influenced by the threat of harm is to fail to consider that issue properly.
The Authority found that members of the Green Movement who had a more active organisational involvement were likely to attract the attention of official authorities. Similarly, they found that the applicant would act in ways that would reduce any risk of persecution on the basis of his political beliefs.
It was submitted that this was another failure by the Authority to not consider if any modification of behaviour was due to the applicant’s fear of persecution because of his actual or imputed political opinion. The Authority was required to make findings as to the applicant’s reasons for refraining from future political conduct given the harm suffered by more prominent political activists and his fear of speaking out against the Iranian regime; (see Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111 (“BBS16”).
In reference to s 5J(3) of the Act, the applicant contended that it must be understood in the light of Appellant S395 and is not inconsistent with that case. Moreso, the Authority fell into jurisdictional error at a different stage in the process than that which is addressed by s 5J(3) of the Act. The Authority had failed to consider this provision because it did not direct itself to whether the applicant’s intention to not engage in political activities was a modification of behaviour of the kind which s 5J(3) of the Act was directed to address.
Ground two
Ground two is a complaint that the Authority failed to exercise or to consider exercising its discretion to seek further information from the applicant by relying on discrepancies in translated documents supplied by the applicant’s former representative to the delegate.
The Court received into evidence an Affidavit of Khosro Nazari, an interpreter in the Farsi language, which attached fresh interpretations of the Court Notices referred to above. This affidavit was received on the basis of materiality only and not as fresh evidence.
The former representative was a professional and accredited translator of Dari and Hazaragi to English and this is identified through the stamps on the Penal Notice Translations and the Tehran Judgement Translation. These documents were written in Persian (Farsi), the official language of Iran (Affidavit of Farid Varess 16/08/21).
The Authority’s concerns about the translated documents were in relation to the inconsistencies with the applicant’s evidence about when and how he received the documents. The other concerns of the Authority about the translated documents are taken from the applicant’s submissions at [22]:
a.the three Penal Notice Translations referred to ‘section 76 of penal court of Iran’, when there was no country information that a ‘penal court’ exists (CB 353 [28]);
b.the first Penal Notice Translation states that the date of hearing is 30/06/1390 (21/09/2011), while the second Penal Notice Translation also states that the reason for attendance ‘includes being absent in hearing of 15/04/1390 (05/07/2011)’ (when that date of 05/07/2011 is not in the first Penal Notice Translation) (CB 353 [28]);
c.the Applicant’s first name is missing from the first Penal Notice Translation (CB 353 [29]);
d.the three Penal Notice Translations refer to the Judiciary of Islamic Republic of Iran, while the Tehran Judgment Translation refers to the Justice Administration of Islamic Republic of Iran (CB 353 [29]);
e.the three Penal Notice Translations refer to “Section 76 of penal court of Tehran”, while the Tehran Judgment Translation refers to “Section 76 Court of justice of Tehran Province” (CB 353 [29]);
f.a number is described as a “File number” in the Penal Notice Translations, but as an “Application number” in the Tehran Judgment Translation (CB 353 [29]); and
g.a number is described as a “Section’s archive number” in the Penal Notice Translations, but as an “Office archive number” in the Tehran Judgment Translation (CB 353 [29]).
The Affidavit of Khosro Nazari affirmed on 4 April 2019 annexes new translations of these documents which were prepared after the Authority decision.
The discrepancies that were identified by the Authority do not appear on the correctly translated copies of the mentioned documents.
Under s 473DC of the Act, the Authority had the power to exercise its discretion to request new information from the applicant as to the content or correct translation of the documents. The applicant contended the failure by the Authority, be it the failure to consider whether or not to exercise the discretion or the failure to exercise the discretion, was unreasonable.
The applicant filed a Notice to Admit Facts on 27 July 2021 in respect of the above contention and in addition, the Authority’s power to seek additional information to that provided by the Secretary under s 473CB in relation to the Penal Notices, the Tehran Judgement and their respective translations. The respondent disputed this contention.
The applicant additionally requested production of any documents “recording or referring to any consideration given by the second respondent (Authority)”. The first respondent was instructed that the Authority did not possess these documents.
The Authority’s reasons for decision do not refer to whether it considered exercising this discretionary power. The applicant is of the understanding that the Authority is not required to demonstrate in its reasons that it has considered exercising a procedural discretion; (see: CCQ17 V MIBP [2018] FCA 1641 (“CCQ17”). However, the applicant contends that there are certain circumstances where the lack of any information in the Authority’s reasons as to the exercise of the discretion warrants an inference that the discretion was not considered; (see: CCQ17 at [17]).
In this matter, the applicant contended that this inference can be drawn from the lack of reference in the Authority’s decision of whether to seek further information and the lack of documentary evidence to indicate their consideration to exercise that discretion in response to the Applicant’s further request.
The applicant posed the question: “Did the Authority act unreasonably in failing to consider exercise of, or in failing to exercise, its power to get new information under s 473DC?”.
CCQ17 at [42] determined that there are no fixed categories of circumstances for which it would be held legally unreasonable to fail to exercise or to consider the exercise of the discretionary power found at s 473DC of the Act. In relation to the matter of unreasonableness, the Court in DP117 v MHA (2019) 269 FCR 134 (“DPP17”) at [42] held that unreasonableness can only be determined by “close attention to the particular facts in which the issue of legal unreasonableness is raised”. In the same stead however, it could be considered unreasonable for the Authority not to seek further information where there is not a “sufficient evidentiary basis” for the Authority’s determination unless it exercises its discretion to seek further information; (see: DP117 at [46](3)).
The matter of DVO16 v MIBP (2021) 273 CLR 177 (“DVO16”) considered the issue of interpretation errors in an interview between an applicant and a delegate. The findings of Kiefel CJ, Gageler, Gordon and Steward JJ found at [20] that when faced with translation errors in the context of a recording of a protection visa interview:
….the Authority would have the potential to breach the reasonableness condition implied into its powers to get and consider new information were it to fail to exercise those powers to interview the referred applicant and then to consider the referred applicant’s testimony as correctly translated. Equally, the Authority would have the potential to breach the reasonableness condition implied into its duty to review the referred decision were it to make findings adverse to the referred applicant without having exercised its procedural powers to get and consider new information which might address those concerns.
The Authority is not required to verify the accuracy of information provided to it in every case; (see: DST18 v MICMSMA [2020] FCCA 1813 (“DST18”) at [158]). It may have failed to “discharge the core element of its overriding duty”; (see; DVO16) by failing to consider the mistranslation of a referred applicant’s claims and this failure goes towards its legal unreasonableness in not seeking new information from an applicant.
The Penal Notice and Tehran Judgement translations were “crucial documents” in the applicant’s case. The Authority’s failure to consider exercising, or its failing to exercise its powers under s 473DC of the Act should be held as legally unreasonable. The Authority was not aware if the applicant’s former representative was an accredited Farsi translator and could not have been aware of how the terms that were deemed as inconsistent were usually translated into English “given that a word in one language may bear several (potentially synonymous meanings in another”; (see: EV119 v MICMSMA [2022] FCA 518 at [121]).
The Authority found that the documents were not authentic and relied on the basis that these translations had been prepared by the same person. This is submitted to be an “exceptionally thin basis” for the Authority to make that finding.
The applicant noted that there were clerical differences in the untranslated documents at [38] to [40]. The Authority’s finding that there was a discrepancy in the applicant’s evidence because his first name was missing from the first hearing notice should have led the Authority to question if there were other errors contained in the underlying documents.
The delegate’s SHEV refusal decision did not refer to the discrepancies in the applicant’s documentary evidence and the applicant was not made aware of the Authority’s concerns in regard to this. The applicant acknowledged that the Authority was not required to afford them procedural fairness, however this information was relevant in determining whether the Authority had failed to seek further information.
In the matter of ETA17 v MICMA [2023] FedCFamC2G 512 (“ETA17”) at [103] (g), the Authority had identified but ultimately dismissed potential explanations for discrepancies between the translations and understood that other explanations were possible. The Authority, similar to the decision-maker in ETA17 should have had regard to their discretionary powers under s 473DC of the Act.
THE RESPONDENT’S SUBMISSIONS
Ground one
In response to the first contention by the applicant, the first respondent submitted that at [32] of its decision, the Authority directly engaged with the question by finding that the applicant had no desire to engage in further political activity.
The Authority did not suggest that the applicant could avoid an otherwise real chance of persecution “by not continuing any political activities or by maintaining a low profile”. The Authority had engaged in fact finding and held that he did not have any intention to engage in further political activity and there was a remote chance he would come to any adverse attention because of his political ideals. The Authority had considered whether or not the fears the applicant claimed to hold were well founded. They did not follow the Tribunal’s direction in the matter of Appellant S395 and ask whether he could avoid persecution but they did ask what the applicant was likely to do in the future if he was to return to Iran; (see: Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 79 ALJR 1142 at [168] per Hayne and Heydon JJ and also see Gleeson CJ at [11]).
There was no evidence before the Authority which would lead it to find that the applicant had modified his past conduct such as to raise the potential need for the Authority to now consider if his behaviour modifications in the were because of a threat of harm. The applicant never claimed that he held a desire to undertake any political activity, instead he claimed that he would refrain from doing so because of a fear of harm. The Authority is under no obligation to consider claims that are not made or do not clearly emerge from the materials; (see: NABE v Minister for Immigration and Multicultural Affairs (No 2) (2004) 144 FCR 1 at [58], [68]; DHQ17 v Minister for Immigration and Border Protection [2019] FCA 1975 at [46]-[47]).
The first respondent distinguished this case from Appellant S395. The Tribunal in that case had found that it was not possible to live openly as a homosexual in Bangladesh and persons who did were likely to face problems, however Bangladeshi men could engage in discreet homosexual relationships. The Tribunal had found that the applicants in Appellant S395 had previously conducted their relationship in a discreet manner and therefore they could continue to do so if returned to Bangladesh. The majority held that the Tribunal erred as it had not considered whether the visa applicants choose to live discreetly was a voluntary choice “uninfluenced by the fear of harm if they did not live discreetly”.
The principles in Appellant S395 were summarised in DQU16 v Minister for Home Affairs (2021) 273 CLR 1 at [8] by Kiefel CJ, Keane, Gordon, Edelman and Steward JJ as follows:
The Refugee Review Tribunal ("the Tribunal") in Appellant S395 had accepted that it was not possible for the protection visa applicants in that case to live openly as homosexuals in Bangladesh, but found that they had previously conducted themselves "discreetly" in Bangladesh, and there was no reason to suppose that they would not continue to do so if they returned to that country. The Tribunal concluded that the applicants were not entitled to protection visas. The Tribunal's reasoning was held to be fallacious. The principle for which Appellant S395 stands is that "a fear of persecution for a Convention reason, if it is otherwise well-founded, remains well-founded even if the person concerned would or could be expected to hide his or her race, religion, nationality, membership of a particular social group, or political opinion by reason of that fear and thereby to avoid a real chance of persecution" [SZSCA (2014) 254 CLR 317 at 330 [36]]. The principle "directs attention to why the person would or could be expected to hide or change behaviour that is the manifestation of a Convention characteristic" [SZSCA (2014) 254 CLR 317 at 330-331 [37]] (emphasis added).
Further, in the matter of Minister for Immigration and Multicultural and Indigenous Affairs v VWBA [2005] FCAFC 175 at [6](b), the Full Court summarised three propositions for which Appellant S395 stands for:
… Rather we will set out our understanding of the propositions for which that case is authority. They are:
(a)The Tribunal will err if it assesses a claim on the basis that an applicant is expected to take reasonable steps to avoid persecution if returned to his or her country of origin. The Tribunal’s task is to assess what the applicant will do, not what he or she should do. See S395 at [40] and [50] per McHugh and Kirby JJ and at [80] and [82] per Gummow and Hayne JJ.
(b)If the Tribunal finds that a person will act in a way that will reduce a risk of persecution that would otherwise have been well-founded, the Tribunal must consider why the person will act in that way. If it fails to do so, it commits a jurisdictional error. See S395 at [43] and [53] per McHugh and Kirby JJ and at [88] per Gummow and Hayne JJ.
(c)The Tribunal will err if, having found that a person will act in a way that will reduce a risk of persecution, it does not go on to consider whether the person nevertheless has a well-founded fear of persecution because, despite the conduct that reduces the risk, there is still a real risk that the person will be persecuted. See S395 at [56] per McHugh and Kirby JJ and at [85]-[86] per Gummow and Hayne JJ.
In this case, the applicant made no claim, and the Authority has made no finding as to the active role played by applicant in the Green Movement.
The first respondent distinguishes BBS16 which the applicant relies upon to contend that the Authority failed to consider whether the modification of behaviour was the product of a fear of harm on the applicant because of his actual or imputed political opinion. In this case, the Full Court found that the Authority should have asked the visa applicant why they had not practiced their religion more extensively or have been more politically active, also why they would not have altered their behaviour if returned to Iran. The Authority in that case had accepted that the visa applicant was a member of a minority religion which had faced “intensifying official harassment” and “that he was an Arab and, having regard to country information … there is a high level of societal discrimination against Arabs which can lead to unfair treatment, in areas such as employment and access to housing and services”. Their Honours, Kenney, Tracey and Griffiths JJ at [82]-[83] held that the Authority should have considered whether the visa applicant would not practice his faith more often and be more politically active on return to Iran because he feared the harm that could come to him if he practiced more prominent and active religious and political proponents.
Ground two
The applicant’s reliance on the Affidavit of Khosro Nazari is inadmissible as the translation of these documents which the applicant purported to be the correct translation were not before the Authority.
There is established authority that determines that the Court cannot receive evidence which was not before the Authority “for the purpose of contradicting the record before the Authority”; (see: M211 of 2003 v Minster for Immigration and Multicultural and Indigenous Affairs [2004] FCA 660 at [30] and [36]; Sami v Minister for Immigration and Citizenship [2013] FCAFC 128; 139 ALD 1 at [7]-[9] per Jagot, Barker and Perry JJ; DZAEK v Minister for Immigration and Border Protection [2017] FCA 247 at [19]. In the matter of MZXHY v Minister for Immigration and Citizenship [ 2007] FCA 622, Nicholson J found at [8] that “[i]t is not open for an appellant to ask the Court to admit new evidence for the purpose of inviting the Court to disagree with a factual conclusion reached by the Tribunal”.
If the Affidavit of Khosro Nazari is not admitted by the Court as fresh evidence, then this ground will fail given that the applicant relies on this evidence to demonstrate the alleged error. In the alternative, if the applicant continues to press the ground without the Affidavit of Khosro Nazari, ground two still fails to establish jurisdiction error.
The applicant still holds an onus of proof to prove that the Authority did not consider whether to exercise its discretion under s 473DC(3) of the Act. The applicant alleged that the Authority failed to provide any document referring to its consideration of the discretionary power however this is wholly irrelevant as it is under no statutory obligation to give reasons, let alone maintain a separate record of such consideration.
It was submitted that the applicant has not managed to demonstrate whether the Authority erred by not exercising its discretion to seek new information. Based on the legislative and factual contexts, it was not legally unreasonable for them to do this.
To this end, the first respondent submitted reasons to explain why it was not legally unreasonable for the Authority to exercise their discretion. These are summarised as follows:
·Firstly, documentary evidence of the “correct translations” would not have been regarded as new information at all; (see: ABJ17 v Minister for Immigration and Border Protection (2018) 260 FCR 295; DFS16 v Minister for Home Affairs [2019] FCA 944). Section 473DC (3) of the Act only extends to permit the Authority to get “new information” as it is relevantly defined in s 473DC(1) of the Act. The applicant did not point out which “new information” should be considered if he was given the opportunity to provide it,
·Secondly, the translations “on their face” were prepared by a registered Migration Agent engaged by the applicant who was qualified to translate Dari to English and had provided interpreting and translating assistance throughout the visa application including interpreting the visa application in into the Farsi Language.
·Third, the translations of penal court was consistent with the applicant’s statutory declaration.
·Fourth, the mistakes and discrepancies highlighted by the Authority made up only some concerns that they had with the Court summons and verdict. There was ample evidence that supported the Authority’s findings even if the mistakes and inconsistencies are disregarded. The first respondent distinguished the case of DP117, submitting that in the present case, the Authority did not depart from a favourable finding by the delegate.
·Fifth, the Authority’s finding at [30] as to why inconsistencies between the translated documents could not be attributed to the differences in translation is an “available and logical one”. Given that only six months had passed between the submission to the delegate of the summonses and the verdict, it is possible to infer that the migration agent would have kept records of the translated summons she had already submitted.
·Sixth, the Authority had regard to country information about the production of fraudulent documents in Iran. Given that the genuineness of the Court documents provided to the Authority was a “live issue” it was open to them to find that the applicant could have also identified and corrected any error in the translated documents.
·Seventh, the first respondent contended that nothing was put to the Authority to suggest that there were mistakes in the translation documents. Particular (f) (ii) of the applicant’s ground two also concedes that the mistakes are not apparent on the face of the untranslated document or the translated documents. The error in regard to the applicant’s first name can be put down to the nature of translations not adopting the same formatting as the original document. That is also only a response to one mistake among many others identified.
The first respondent distinguishes DVO16 in that, in that matter errors were made by interpreters which had been provided to the Department at a departmental interview conducted pursuant to s 56 of the Act. Whereas, in this instance the translations were provided by the applicant who had the responsibility of providing evidence in support of that claim pursuant to s 5AAA(2) of the Act, to which the Authority had no positive duty to verify this claims or evidence (s 5AAA (4) of the Act; (see: DST18 at [157]-[158]).
The applicant had provided the court documents and asked the delegate to give weight to them. Any mistakes were not put forth or made known in the review materials and the applicant has had to provide expert, albeit inadmissible evidence. Further the Authority has correctly considered the applicant’s substantive claims; (see: DVO16 at [22]-[23]).
CONSIDERATION
Ground one is a claim that the Authority failed to consider whether or not the applicant would engage in further political activity if returned to Iran. The Authority accepted the applicant had been arrested and held overnight at a police station and beaten on suspicion of theft, due to being a Kurd [34].
The Authority accepted the applicant took part in demonstrations in Tehran at the end of December 2009, but only as a passive observer who left when confrontations with police started [22]. The Authority did not accept the applicant was identified through video of the demonstrations or otherwise [23]. It did not subsequently accept the applicant had been prosecuted by authorities and sentenced to five years imprisonment.
The Authority then went on to find at [32] that the applicant had not expressed any desire to engage in further political activity and it was thus remote that he would come to adverse attention because of his involvement in the protest or otherwise because of his political views.
This finding was in circumstances where the applicant had made clear expressions of fear of being harmed due to his imputed political and social opinion, in that he did not like Iran’s strict laws and favoured freedom and liberty without rules and restrictions, being able to wear what he wants, say what he wants and to eat or drink what he wants [CB 72]. This was amplified in his SHEV interview at p.13, where he described the changes to Iran following the toppling of the monarchy.
While the Authority found the applicant did not have an intention to engage in political activity, if returned, the Court is satisfied the Authority did not consider the reason why he would not do so. The Court accepts the submission that by failing to consider if this lack of intention was brought about due to the fear of persecution due to his implied or actual political opinion, the Authority misconstrued or misapplied the law; (see: Appellant S395 at [88]). The Authority needed to decide if the modified behaviour was influenced by the threat of harm; (see: Appellant S395 at [88]). At no point did the Authority make any relevant findings on this point.
This was an unarticulated claim which was clearly raised such that the Authority was still required to consider it: (see: BBS16 at [79], [82] and [83]). The Court is not satisfied that this finding is affected by s 5J(3) of the Act as the Authority never considered if the applicant would engage in a modification of behaviour due to the threat of persecution and serious harm.
This failure amounts to jurisdictional error and the relief sought by the applicant should be granted.
While not strictly necessary, it is appropriate to deal with ground two, in case the Court is wrong in relation to ground one.
Ground two is a claim that the inconsistencies found by the Authority contained within the translated version of the Iranian Court documents arose as a result of an incorrect translation of these documents by the interpreter used. This interpreter, who was the applicant’s previous migration agent, was not a specific Farsi interpreter, rather a Dari or Hazaragi interpreter.
This issue was averred to by the Authority at [30] where the following was stated:
I note the translations were undertaken by the applicant’s migration agent, who is listed as a NAATI accredited translator or Dari and Hazaragi into English. It is unclear whether the agent is also an accredited translator of Farsi. I have considered whether the above matters (being the inconsistencies noted at [29]) might be explained by differences in translation, however considering that all the translations were prepared by the same person, I find it more likely the differences in terminology are contained within the documents themselves.
It was on this basis that the Authority concluded that the documents were not genuine. Counsel for the applicant submits that the Authority unreasonably failed to consider whether to exercise its discretion pursuant to s 473DC of the Act to request new information of the applicant as to the content of the documents as translated.
The review by the Authority was a ‘fast track’ review carried out under Part 7AA of the Act. Pursuant to s 473DB of the Act, the Authority is directed to conduct the review on the papers without accepting or requesting new information (s 473DB(1)(a) of the Act) and without interviewing the referred applicant (s 473DB(1)(b) of the Act). Section 473DC of the Act provides the Authority with the capacity to obtain new information that was not before the Minister and the Authority considers may be relevant (s 473DC(1)(a) and (b)of the Act). Section 473DD of the Act directs the Authority not to consider any new information unless there are exceptional circumstances to justify the consideration of the new information (s 473DD(a) of the Act) and the information was not and could not have been provided to the Minister before the decision was made (s 473DD(b)(i) of the Act) or is credible personal information that was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims(s473DD(b)(ii) of the Act).
The Court notes that the translated court documents were provided by the applicant to the delegate. There is no general obligation on a Tribunal to investigate an applicant’s claims; (see: Minister for Immigration and Multicultural and Indigenous Affairs v SLGB (2004) 207 ALR 12 at [43]). The duty imposed on the Tribunal by the Act is a duty to review and not a duty to enquire. The exception is where there is an obvious failure by the Tribunal to make an enquiry about a critical fact, the existence of which is easily ascertained; (see: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25]).
Unreasonableness is where a decision-maker has come to a conclusion so unreasonable that no reasonable decision-maker could have come to it; (see: Minister for Immigration v Li (2013) 297 ALR 225 (“Li”) at [28], or where a decision has been made that lacks an “evident and intelligible justification”; (see: Li at [76]). The test for unreasonableness is “stringent” and will only arise in rare cases. Unreasonableness is not a means for challenging a decision on the basis that the court disagrees with the consideration of matters, or the evaluative judgements made by the decision-maker; (see: Li at [30], [113]).
In Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 at [11], Allsop CJ said the following concerning a review of a decision for legal unreasonableness:
The task is not definitional but one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, insufficiently lacking rational a foundation, or an evident or intelligible justification, or in being plainly unjust arbitrary capricious or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as to the exercise of that power. The descriptions of a lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of power.
The Court is not satisfied that the Authority acted unreasonably. Firstly, the Court is satisfied that the Authority was not under an obligation to give reasons for the exercise of a procedural statutory discretionary power; (see: BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29 at [16], [40]). The Court is satisfied that the Authority did consider the issue of the accuracy of the translation at [30] of the decision record, however concluded it was not necessary to do so for the reasons it gave. This was not a situation that obliged the Authority to conduct a further investigation. A mistranslation by the applicant’s representative was not an obvious fact, for the reasons the Authority gave, that required an enquiry.
Second, the Authority, in rejecting the Court documents as fabrication, relied not only upon the inconsistencies it noted within the documents, but on country information that highlighted the prevalence of forged documents, giving examples of matters that might lead a body, such as the Authority, to conclude the documents were indeed fake or bogus.
Third, nothing was put to the Authority to suggest there were mistakes within the translations which were provided by the applicant. The Court agrees this matter is distinguishable from DVO16 which concerned errors made by interpreters provided by the Department at a Departmental interview.
Fourth, it is for the applicant to satisfy the Authority, being the relevant decision maker, that the applicant meets the criteria for being a refugee; (see: Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187]). It was for the applicant to provide his evidence and arguments in sufficient detail to enable the Authority to reach the requisite state of satisfaction;(see Minister for Immigration and Citizenship v Lat (2006) 151 FCR 214 at [76]). The Authority is under no obligation to “afford every opportunity to an applicant for review to present his or her best possible case or improve upon the evidence”; (see :Li at [82]).
The Court is not satisfied that any failure by the Authority to request additional information in the circumstances outlined meets the “stringent” test for legal unreasonableness. Ground two has no merit.
DISPOSITION
The application is upheld, and the relief sought by the applicant must be granted.
I certify that the preceding one hundred and twenty-three (123) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphrey. Associate:
Dated: 8 April 2024
25
1