FMB18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 227
•19 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FMB18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 227
File number: MLG 3120 of 2018 Judgment of: JUDGE FORBES Date of judgment: 19 March 2024 Catchwords: MIGRATION - protection visa - application for judicial review of decision of Immigration Assessment Authority refusing visa – where applicant bore scars relating to alleged torture – where scars visually inspected and described by the delegate – where Authority relied on delegate’s description – whether there was an informational gap in the review – whether Authority should have invited applicant to interview – where Authority obtained recent country information not available to delegate – whether Authority failed to properly consider later information regarding monitoring of social media activities by Iranian authorities – whether Authority relied on outdated country information – no error found Legislation: Migration Act 1958 (Cth) s 5H, 5J, 36, 65, 473DC, 473DD Cases cited: ABT17 v Minister for Immigration and Border Protection [2020] HCA 34
AYC18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No. 2) [2023] FCCA 1637
AYC18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1502
BCQ16 v Minister for Immigration and Border Protection [2018] FCA 365
BMP15 v Minister for Immigration and Border Protection (2018] FCA 1291
CUZ17 v Minister for Immigration & Anor [2019] FCCA 307
DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91
FFR19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 894
Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431
Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217
Division: Division 2 General Federal Law Number of paragraphs: 99 Date of hearing: 29 March 2023 Place: Melbourne Counsel for the Applicants: Dr A McBeth Solicitor for the Applicants: Clothier Anderson & Associates Counsel for the Respondents: Mr J Barrington Solicitor for the Respondents: Clayton Utz ORDERS
MLG 3120 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FMB18
First Applicant
FMC18
Second Applicant
FMD18
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE FORBES
DATE OF ORDER:
19 MARCH 2024
THE COURT ORDERS THAT:
1.The First Respondent’s name be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The Applicants’ amended application for judicial review filed 23 December 2022 be dismissed.
3.The Applicants pay the First Respondent’s costs which, in default of agreement, shall be in accordance with the scale prescribed in the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) as at the day of hearing.
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 FORBES
INTRODUCTION
By an amended application dated 23 December 2022, the applicants, a family of three, seek judicial review of a decision of the Immigration Assessment Authority (the Authority) dated 28 September 2018. In its decision, the Authority affirmed a decision of a delegate of the Minister to refuse to grant Safe Haven Enterprise (subclass 790) visas (the SHEV or the visas) to the applicants under s 65 of the Migration Act 1958 (Cth) (the Act).
By their amended application, the applicants seek to impugn the Authority’s decision on three grounds, only two of which were pressed at the judicial review hearing. In short, the applicants contend that:
(1)the Authority unreasonably failed to exercise its discretion to invite the applicants to an interview; and
(2)the decision of the Authority was affected by jurisdictional error by reason of the Authority relying upon outdated country information and failing to rely upon the most recent information available to it.
For the reasons set out in this judgment, I have determined that the decision of the Authority was not affected by jurisdictional error.
Accordingly, the application will be dismissed and the applicant should pay the Minister’s costs of the application.
BACKGROUND
The applicants are citizens of Iran of Persian ethnicity. Their family unit consists of a husband (the principal applicant), his wife and their son. The applicant and his wife arrived in Australia by boat from Iran on 18 May 2013. Their son was born in Australia on 31 August 2017.
On 14 July 2016, the applicants applied for the visas. In the SHEV application the first applicant made the primary claims for protection owing to a well-founded fear of persecution in Iran. The first applicant’s wife and son rely on claims made by the first applicant and also rely on the family unit criteria.
The first applicant fears returning to Iran based on political and religious grounds. He claims to have no intention to practice the Shia Islam religion or its strict way of life and is against Iranian political ideologies. He fears harassment, torture and imprisonment by the Basij - the paramilitary morality police which is a division of the Islamic Revolutionary Guard.
The first applicant also claims to fear harm for apostasy and as a person who would be presumed to be an infidel due to the time he has spent in Australia. He claims that he does not believe in any religion and argues that he would be compelled to act discreetly with respect to his political and religious beliefs and criticism of the government if returned to Iran.
Among his claims, the first applicant describes having been verbally abused by the Basij while at university in 2002 for having gel in his hair and wearing a t-shirt. On another occasion in late October 2002, the first applicant claims that he was kidnapped, interrogated and tortured by three men a few days after he had been threatened by the Basij for asking for food at the university cafeteria during Ramadan.
Relevantly, in relation to the instance of interrogation and torture in October 2022, the first applicant claims that the three men used hot rods to burn his tattoos, scrubbed his burnt flesh with metal scrubs and used cigarette butts to burn his skin. The first applicant says that this torture occurred because he said he was not a Muslim.
At the SHEV interview with the delegate on 13 June 2017, the first applicant described the circumstances of the alleged torture. In the interview (which has been transcribed and tendered into evidence[1]) the first applicant said that he had been taken to an unknown location where he was tied into a chair. He said that his captors removed his clothes and saw his tattoos, including one devoted to his mother. He claimed that his captors burned him with a cigarette, beat him with a belt, cut him with a razor and burned his tattoo with a hot skewer. The first applicant also claimed that after burning the tattoo they used a metal brush to scrub his skin until it bled.
[1] Affidavit of Isabella Owen sworn 15 March 2023 (Owen affidavit), annexure IO-1 (interview transcript) Q97-Q107
In the SHEV interview, the delegate asked to see the scarred tattoo and any scars from where the captors had used razors on the applicant. The first applicant agreed. The transcript records the following exchange between the delegate and the applicant[2]:
“Q151 […] can I see the tattoo?
A (Direct) (Indistinct)
Q152Yes. As long as you’re okay with that? So I don’t - yes, just want to see the tattoo part
AThis is the razor scars. This is - this is the - a cigarette. Cigarette. And this is a razor cut, in cheek of there. This is where the - my tattoo was that they would use hot skewers and then try to scrub it off, and it had written the word “Mother”.
Q153Okay. So for the record the Applicant’s just showing tattoos on his left arm - well, there doesn’t appear to be a tattoo any more, just scarring of perhaps where there was the words “Mother”. You can see something vaguely, it’s true. And then there’s definitely scarring from razor marks and then small circular scarring that could be from cigarette burns.
A (Direct) (Indistinct)”
[2] Interview transcript Q151-154
On 25 March 2018, the delegate refused to grant the visas after finding that the applicants are not persons in respect of whom Australia owes protection obligations. The delegate did not accept the first applicant’s claim that he had been interrogated, tortured by the Basij or that the Basij had made attempts to forcibly recruit him. Furthermore, the delegate was also not satisfied that the first applicant had a profile such that he would be of interest to the authorities in Iran for reasons of his political opinion or religious views, or that he would face serious harm for reasons of having tattoos, his appearance and hairstyle or as a failed asylum seeker returning from Australia.
Immigration Assessment Authority
On 29 March 2018, the matter was referred to the Authority for fast track review under Part 7AA of the Migration Act.
On 18 April 2018, the Authority received two submissions and a number of documents from the applicants’ representative. These additional documents included statutory declarations from the first applicant and his wife, a letter from the first applicant’s counsellor dated 19 June 2017, a letter from the first applicant’s general practitioner dated 16 April 2018, two of the first applicant’s Facebook posts from April 2017 and a number of the first applicant’s bank statements.
In the first submission, the applicants’ representative raised arguments regarding the admissibility of various documents. The submission contended that the documents submitted to the Authority were not new information for the purposes of s 473DC(1) or, in the alternative, if they were considered to be new information, the Authority should be satisfied that there were exceptional circumstances to justify consideration of the documents.
This first submission also requested the Authority to invite the first applicant to give oral evidence at an interview. The applicants’ representative submitted that if the Authority was to affirm the delegate’s decision, by relying on different factual findings than those made by the delegate, and if the Authority considers seeking evidence relating to its findings under s 473DD, then the Authority needs to consider exercising its discretionary power under s 477DC(3) to invite the first applicant to give oral evidence. The first applicant and his wife also requested the opportunity to explain their statutory declarations in person to the Authority.
The second submission provided to the Authority largely consisted of arguments as to why the decision of the delegate was factually and legally incorrect. However, the submission also reiterated that the first applicant had continued to express his anti-Iranian government views online, including in the form of Facebook posts.
Authority’s decision
On 28 September 2018, the Authority affirmed the delegate’s decision to refuse the applicants’ visa applications.
Save in relation to one matter, the Authority was not satisfied that the statutory declarations filed by the first applicant and his wife contained new information. The Authority found that the statutory declarations really amounted to submissions as to why the applicants did not agree with the delegate’s conclusions and decision.
However, the Authority did accept the first applicant’s reference to two 2017 Facebook posts (14 and 16 April 2017) and his claim that about a week before the date of his statutory declaration (April 2018) his father had expressed concerns about the first applicant’s social media activities.
The two Facebook posts were made from Australia in April 2017. These posts were in the Persian language, but included translations which indicated that the first applicant was cursing Islam and making negative statements about the government. The first applicant claimed that in April 2018, during a Skype conversation, his father informed him that the first applicant’s uncle, who used to work for the Sepah, had expressed concerns about the first applicant’s social media posts. The first applicant stated that the Facebook posts were made at a time between lodging his SHEV application and attending the interview with the delegate. For reasons expressed at [11] of the decision record, the Authority was satisfied that there were exceptional circumstances to justify considering this information. The Authority indicated that it had paid regard to the Facebook posts when considering the first applicant’s claim of continued political activities in Australia and his fear of harm as a result of those Facebook posts.
The Authority also considered that the letter from the first applicant’s general practitioner was new information. That letter post-dated the delegate’s decision and was a more recent update about the first applicant’s mental health status, including his symptoms and current medications.
As to the request by the first applicant and his wife for an opportunity to explain their statutory declarations, the Authority decided not to exercise its discretion to invite them to attend an interview[3]. The Authority found that the first applicant’s and his wife’s statutory declarations provided detailed responses to the delegate’s decision and conclusions. The Authority indicated that it had listened to the SHEV interview and formed the view that the first applicant did not have any difficulties with understanding the process nor had he been prevented from giving evidence. He had also been afforded time at the end of the SHEV interview to reflect on what had been discussed and to present any further information he wished to be considered. The Authority concluded that the first applicant had been given ample opportunity to present his claims at the SHEV interview and to clarify issues and address areas of concern[4].
[3] The Immigration Assessment Authority’s (the Authority’s) reasons at [16]
[4] Authority’s reasons at [18]-[19]
The Authority also noted that there was no requirement to put the first applicant on notice of differing factual findings or the possibility of arriving at different conclusions to that of the delegate. The Authority concluded that the first applicant had been afforded an ample opportunity to discuss his claims, present evidence in support of his claims and to address the delegate’s concerns[5].
[5] Authority’s reasons at [20]
In its reasons, the Authority indicated that it had obtained new information in the form of a 2018 Department of Foreign Affairs and Trade (DFAT) report on Iran which had been released on 7 June 2018. That report, which post-dates the delegate’s decision, comments on the situation of persons returning to Iran after having claimed asylum, persons who express views against the Iranian government and persons who do not believe in or practice Islam. The Authority noted that the 2018 report updates the 2016 report which had been cited in the delegate’s decision. The Authority expressed satisfaction that there were exceptional circumstances to justify considering the more recent 2018 DFAT report.
As to the first applicant’s substantive claims for protection, the Authority reached the following conclusions on the evidence before it:
(a)the Authority found it difficult to accept that if the first applicant had been subjected to torture and detention as claimed, he would not have given any information about the impact that the Basij had on his life while studying and working in Iran[6];
[6] Authority’s reasons at [29]
(b)the Authority did not accept that the first applicant had given a full account of his reasons for departing Iran at the arrival interview. For example, at the arrival interview the first applicant did not provide any information about his involvement with or fear of the Basij. The Authority said it had significant concerns as to the credibility and plausibility of the claims the first applicant had advanced in the SHEV application and interview[7];
[7] Authority’s reasons at [30]
(c)that the applicant’s evidence in relation to an incident on 23 October 2002, when during Ramadan he claimed to have asked for food in the University cafeteria, was highly implausible. The Authority was not convinced that the first applicant would go to a public cafeteria during Ramadan and ask for food and then renounce Islam to members of the Basij[8];
[8] Authority’s reasons at [32]
(d)the first applicant’s evidence regarding the incident of arrest, interrogation and torture on or around 26 October 2002 was considered far-fetched and fabricated[9]. The Authority found it difficult to accept that if the first applicant had denounced Islam to members of the Basij at the university café that they would not have taken action immediately, rather than waiting for days before doing so;
[9] Authority’s reasons at [33]
(e)that based on photos provided by the first applicant, and the delegate’s comments that there are some scar marks on the first applicant’s arm that could be from razor marks or cigarette butts, the Authority accepted that the first applicant did bear scars. However, the Authority did not accept that the scars were a result of injuries inflicted by the Basij or in the circumstances alleged[10];
(f)the Authority was not satisfied that the information given by the first applicant to his treating medical professionals about his claimed experiences in Iran was reliable, or that his mental health symptoms are attributable to the events he claims[11];
(g)the Authority was not satisfied that the first applicant had been harmed by the Basij while at university in 2002 or that there was any chance of him facing any harm as a result of his activities while at university[12].
(h)it did not accept that the first applicant had been pressured to join the Basij and considered that the circumstances which followed his claimed refusal to join were highly implausible[13];
(i)while it accepted that the first applicant did not believe in any religion and is against the Iranian government’s ideas and viewpoints, the Authority did not accept that the first applicant had come to the attention of the authorities for reasons of his non-belief in Islam, or religion generally, or on account of his expression of anti-government views while in Iran[14];
(j)The 2016 DFAT country report noted that a Muslim who leaves his or her faith or converts to another religion or atheism can be charged with apostasy in Iran, however it is unlikely that individuals will be prosecuted or monitored for religious observance. The report notes that apostates and atheists are only likely to come to the attention of the Iranian authorities through public manifestations of their faith and seeking to publicise their views. The Authority noted that the 2018 DFAT report “does not suggest that monitoring of religious practices by the authorities have increased”[15];
(k)as to the two Facebook posts which the first applicant posted in April 2017 and the claim that his uncle had expressed concern about the first applicant’s social media activity in April 2018, the Authority was unconvinced. The Authority did not accept the first applicant’s evidence that his posts were known to the authorities or that he is likely to have been blacklisted or his family put under surveillance[16]. Nor did the Authority accept that the first applicant’s social media activities in Australia had been monitored by the Iranian authorities or that his two posts in 2017 would have come to their attention. The Authority said there was no evidence to suggest that Iran engages in widescale social media monitoring of persons with no existing political profile[17];
(l)based on DFAT reports the Authority found that men with Western hairstyles and dress are unlikely to come to the interest of authorities and it was unaware of any recent reports of people being targeted by security forces solely for having tattoos. Nonetheless, “on the basis of the photos submitted by the applicant and the delegate’s viewing of the applicants’ scars” the Authority was willing to accept that the first applicant has a tattoo and that he may be warned or even experience low level harassment for that reason;
(m)the chances of the first applicant being identified as a person of interest or having an adverse profile on his return to Iran, by reason of him being a failed asylum seeker, are remote; and
(n)the first applicant suffers from mental health issues and is currently on antidepressants, but the Authority did not accept that there is a real chance of the first applicant being targeted by the authorities causing his mental health to be exacerbated or deteriorate[18].
[10] Authority’s reasons at [34]
[11] Authority’s reasons at [35]
[12] Authority’s reasons at [36]
[13] Authority’s reasons at [37]
[14] Authority’s reasons at [44]
[15] Authority’s reasons at [45]
[16] Authority’s reasons at [46]
[17] Authority’s reasons at [47]
[18] Authority’s reasons at [53]-[54]
Considering the first applicant’s circumstances as a whole and in light of what the Authority had accepted of his claims, the Authority concluded that the first applicant would not face a real chance of serious harm from the authorities or from any other person in the reasonably foreseeable future in Iran. The Authority found that the first applicant did not have a well-founded fear of persecution within the meaning of s 5J of the Act and did not meet the requirements of the refugee definition in s 5H(1).
The Authority also found that the first applicant failed to meet the criterion for complementary protection pursuant to s 36(2)(aa) of the Act. The Authority found that there was no real chance of the first applicant facing any harm for reasons of his lack of belief in any religion, his Facebook posts made in April 2017 and his political views.
Judicial review
The applicants filed an application for judicial review on 18 October 2018, within the statutory time limit. As mentioned earlier, the applicants now rely on an amended application filed on 23 December 2022.
The applicants relied upon two affidavits in support of their application for review. In an affidavit of Ellen Moore affirmed on 21 December 2022, the applicants’ solicitor annexed:
(a)a transcript of the audio recording of the first applicant’s SHEV interview held on 13 June 2017[19];
(b)a copy of the 2016 DFAT country information report on Iran[20]; and
(c)a copy of the 2018 DFAT country information report on Iran[21].
[19] Affidavit of Ellen Moore affirmed on 21 December 2022 (Moore affidavit), annexure EM-2
[20] Moore affidavit, annexure EM-3
[21] Moore affidavit, annexure EM-4
In a separate affidavit of Isabel Owen affirmed on 15 March 2023, the applicants’ solicitor exhibited an amended transcription of the protection visa interview[22].
[22] Owen affidavit, annexure IO-1
Each of the applicants and the Minister filed written outlines of submissions and these were developed orally at the judicial review hearing.
HEARING
The hearing was conducted on 29 March 2023. Dr Adam McBeth appeared on behalf of the applicants and the Minister was represented by Mr Jonathan Barrington. At the commencement of the hearing Dr McBeth informed the Court that ground three of the amended application would not be pressed.
Ground one: failure by the Authority to invite the applicants to an interview
Applicants’ submissions
By ground one the applicants contend that it was unreasonable for the Authority not to exercise its power under s 473DC of the Act to invite the first applicant to an interview to view his scarring before making an adverse finding on the nature and cause of the injuries.
The applicants submit that a significant part of his claim for protection involved the incidents which occurred whilst he was a university student in 2002. As described above, the first applicant claimed that he had been admonished for eating rather than fasting during Ramadan and had publicly exclaimed in the presence of Basij members that “I’m not Muslim”. The first applicant then claimed that he had been kidnapped the following day, dragged into a car, blindfolded, taken to a house, interrogated and beaten.
The first applicant’s description of the beating included what had occurred when his captors observed a tattoo on his arm. The first applicant claimed that they had slashed and grazed it with a razor, a heated metal item that looked like a skewer was used to burn the tattoo and then the site was rubbed raw with a metal brush.
In considering the applicant’s claims at first instance, the delegate viewed the first applicant’s scars including the area where there had once been a tattoo. The transcript of the delegate interview (extracted earlier in this judgment) records the delegate’s comments and observations. The delegate recorded, among other things, that there was “definitely scarring from razor marks and then small circular scarring that could be from cigarette burns”.
The applicants submit that the Authority acted unreasonably and constructively failed to discharge its statutory task by not inviting the first applicant to an interview where the Authority could have seen the scarring on the first applicant’s body for itself. The applicants submit that by relying only on the delegate’s commentary and some photographs of scars[23], the Authority did not have the advantage of viewing for itself strong corroborative evidence of the first applicant’s claim to have been tortured by the Basij.
[23] Court Book (CB) 178-184
The applicants seek to impugn the Authority’s decision as an unreasonable failure on the part of the Authority to exercise its power under s 473DC to invite the first applicant to an interview. The unreasonableness is said to arise from what the applicants contend was an obvious “informational gap”[24] between what the delegate was able to observe and derive from an interview and the information that was before the Authority on review. The applicants submit that the Authority had the statutory power to invite the applicant to a further interview in order to rectify the informational gap and that its unreasonable failure to do so constituted jurisdictional error.
[24] ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439 (ABT17)
The applicants contend that there was a material difference in the quality of the information available to the delegate and the Authority respectively which resulted in a material difference in their respective findings. It is submitted that the delegate enjoyed the benefit of seeing the scars in real-time and that the delegate had an impression which was more impactful than what was available to the Authority. The applicants submit that the photos viewed by the Authority were not very informative and that the Authority’s second-hand interpretation of what it heard in the interview recording and read in the delegate’s reasons resulted in a “downgraded description of the scarring” or a “walking back” from the delegate’s observations and findings.
The Authority rejected the first applicant’s claim that he had been detained and tortured by the Basij, whereas the delegate had been unable to determine the cause or circumstance of the physical injuries. The applicant therefore contends that the Authority reached a different outcome, which it should not have done without properly informing itself. It is submitted that if the Authority had invited the applicant to an interview and viewed the applicant’s scarring, it may have taken a less sceptical view of his claims.
Moreover, the applicants submit that by not exercising its power to invite first applicant to an interview, the Authority failed to properly perform a de novo review of his application as required by Part 7AA of the Act. It is submitted that the Authority simply did not have the same information before it.
Minister’s submissions
The Minister submits that ground one must fail because it is based on the false premise that the Authority rejected or departed from the account which the delegate had accepted. The Minister submits that the Authority essentially made the same findings as the delegate and largely adopted and mirrored what the delegate found.
The Minister conceded that insofar as a visual impression of the scars gave the delegate a perspective which the Authority did not enjoy first-hand, there was an informational gap. However, the Minister submits that the mere existence of an informational gap will not necessarily result in the Authority being “disadvantaged in comparison with the delegate”[25].
[25] ABT17 at [22]
In his response to ground one, the Minister submits that the requirement to seek further information does not arise unless on the review the Authority proposes to reject or substantially depart from the findings of the delegate. That is not the case here.
The Minister also relied upon the transcript of the delegate interview (referred to above). The transcript records the delegate’s observations and description of scarring at the site of what appears to have been a tattoo. It also records definite scarring from razor marks and some small circular scarring that could be from cigarette burns. In the delegate’s decision, it found that the first applicant did have some scarring and evidence of trauma on his body, but was unable to make a determination as to how it was sustained. The delegate was not satisfied that it occurred for the reasons claimed by the first applicant.
The Minister submits that the Authority essentially made the same findings. The Authority accepted that the first applicant does have scars. It found that based on a series of photos and the delegate’s comments that there were some scar marks on the first applicant’s arm that could have been from razor cuts or cigarette butts. However, given the Authority’s concerns about the first applicant’s claims about the circumstances of his detention and torture, the Authority did not accept that the scars were injuries inflicted by the Basij.
The Minister submitted that the Authority adopted and accurately reflected the findings of the delegate. The Authority did not substitute one view for another. In the circumstances, the Minister submits that the Authority did not act unreasonably because there was no information gap which required reconciliation.
Furthermore, the Minister submits that the Authority did properly undertake a do novo review of the application as required under Part 7AA of the Act. The Authority reviewed photos of the scarring which had been provided by the first applicant, listened to the audio recording of the delegate interview and considered the findings and observations of the delegate as recorded in its decision. It is submitted that the Authority did not simply parrot the delegate’s finding but came to a similar consistent finding based on its own independent assessment of the materials before it. The Authority’s approach was permissible and no requirement to interview or obtain further information arose.
Consideration
The decision of the Authority was made according to the fast track review process in Part 7AA of the Act. As observed by the High Court in Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at [17]:
“[17][T]he Authority when conducting a review of a fast track reviewable decision is not concerned with the correction of error on the part of the Minister or delegate but is engaged in a de novo consideration of the merits of the decision that has been referred to it. The task of the Authority [...] is to consider the application for a protection visa afresh and to determine for itself whether or not it is satisfied that the criteria for the grant of the visa have been met.”
The practical role of the Authority under Part 7AA was helpfully explained by Judge Kelly in CUZ17 v Minister for Immigration & Anor [2019] FCCA 3074 at [24] - [25] where his Honour stated:
“[24] In contrast with a review under Pt 5 or Pt 7 of the Act, the fast track scheme provided by Pt 7AA is a mechanism of limited merits review. Division 3 of Part 7AA variously: provides an exhaustive statement of the natural justice hearing rule respecting a review conducted by the Authority; requires that the Authority should ordinarily conduct its review on the papers; provides for the exceptional, and strictly circumscribed, circumstances in which new information or documents may be sought or employed; and authorises and prescribes the manner in which the Authority may conduct an interview of the applicant or otherwise obtain further information.
[25] In general, the Authority must conduct its review without accepting or requesting new or additional information and without interviewing the applicant. The Authority may, but is under no duty to, get any documents or information that was not before the delegate. Section 473DD proscribes the Authority from considering any new information unless the conditions provided by that section are satisfied.” (emphasis added, citations omitted)
Part 7AA emphasises that there is no duty to conduct a hearing or request new information from the first applicant[26]. Relevantly, section 473DC provides as follows:
[26] See ABT17
Getting new information
(1)Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:
(a)were not before the Minister when the Minister made the decision under section 65; and
(b) the Authority considers may be relevant.
(2)The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(3)Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a) in writing; or
(b)at an interview, whether conducted in person, by telephone or in any other way.
Ground one asserts legal unreasonableness by the Authority for failing to exercise its discretion to get new information from the first applicant. What is considered unreasonable must be assessed according to the statutory scheme. Demonstrating legal unreasonableness in the context of Part 7AA carries a “demanding standard”[27]. As was said by the Federal Court in BCQ16 v Minister for Immigration and Border Protection [2018] FCA 365 at [71]:
“[71]Part 7AA modifies (by restricting) the common law principles of procedural fairness. The analysis of what might be an unreasonable exercise of, or failure to exercise, a discretionary power contained in Part 7AA must proceed against the statutory context, which includes that modification. Whilst the legislature is taken to have intended that a discretionary power will be exercised reasonably (Li at [63], per Hayne, Kiefel and Bell JJ; [88], per Gageler J), that which is reasonable is informed by the subject matter, scope and purpose of the legislation under which it is conferred. Part 7AA requires the Authority to review a decision and to conduct that review on the basis of the “review material” and, subject to the statutory exceptions contained in Part 7AA, without obtaining “new information” or affording the referred applicant a hearing. The reasonableness of an asserted failure to consider a discretionary power to disclose material to the referred applicant, and the reasonableness of the exercise of the discretion itself, must be assessed against that statutory scheme.”
[27] DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91 at [110] per Beach, O’Callaghan and Anastassiou JJ
As the applicants correctly asserted, the statutory power to invite an applicant to a further interview must be exercised reasonably and that the unreasonable failure to exercise the power may give rise to jurisdictional error. An instance of an unreasonable failure may arise where there is a demonstrable information gap which could be remedied by the exercise of the power.
In ABT17 v Minister for Immigration and Border Protection [2020] HCA 34 (ABT17), a delegate of the Minister who had interviewed a fast track applicant in person found that the applicant’s evidence was plausible and broadly consistent with country information pertaining to the events which the referred applicant had described. The delegate refused the application for a protection visa based on other country information. In the conduct of its review of the delegate’s decision, the Authority listened to an audio recording of the referred applicant’s interview with the delegate and, having found that the referred applicant’s evidence was generally lacking in detail and that at times he sounded vague and hesitant, formed an adverse view of his demeanour and departed from the delegate’s findings about a central part of the applicant’s account given by the referred applicant. The Authority affirmed the decision of the delegate.
The issue before the Court in ABT17 was whether the Authority had acted unreasonably in rejecting the applicant’s account in the audio recorded interview without inviting the applicant to a further interview in order to gauge his demeanour for itself. The broader question of principle was whether compliance with the reasonableness condition which attaches to the exercise of a statutory power can compel the Authority to exercise its powers to get and consider new information by inviting an applicant to an interview.
In ABT17 at [20]-[25] (omitting footnotes), the Court said:
“[20]Compliance with the implied condition of reasonableness in the performance by the Authority of its duty to review the decision of the delegate necessitates not only that the decision to which the Authority comes on the review has an “intelligible justification” but also that the Authority comes to that decision through an intelligible decision-making process. Thus, as has been recognised, there can be circumstances in which the Authority can transgress the bounds of reasonableness by treating particular information as the reason or part of the reason for the decision to which it comes without first exercising its powers to get and if appropriate to consider, as new information, further information capable of being provided by the referred applicant.
[21]Answering the question therefore requires an examination of the decision making pathways reasonably open to the Authority in reviewing the decision of a delegate to determine for itself whether the criteria for the grant of a protection visa have been met where the review material that it is obliged to consider in making that determination leaves out information that was available to and required to be considered by the delegate.
[22]The mere existence of an informational gap will not necessarily result in the Authority being “disadvantaged in comparison with the delegate”. That is because, having regard to country information and other information contained in the review material, the credibility of the referred applicant will not necessarily have a significant bearing on the Authority’s determination of whether the criteria for the grant of a protection visa have been met. That is also because, having regard to country information and other information contained in the review material, how the referred applicant may have presented in the interview with the delegate will not necessarily have a significant bearing on such assessment of his or her credibility as the Authority might reasonably undertake.
[23]To the extent that the credibility of the referred applicant might bear on whether the Authority is to be satisfied that the criteria for the grant of a protection visa have been met and to the extent that his or her appearance in an interview with the delegate might bear on his or her credibility, it would ordinarily be open to the Authority to form its own assessment of credibility taking into account such second-hand description or impression of his or her appearance as might be conveyed expressly or by implication in the statement forming part of the review material which sets out the delegate’s findings of fact and refers to the evidence on which those findings were based. Taking into account any such description or impression of the referred applicant’s appearance, it would ordinarily then be open to the Authority to reach an assessment of the referred applicant’s credibility without any need for the Authority’s assessment of credibility to coincide with the delegate’s assessment of credibility.
[24]The Minister is therefore correct to say that the Authority is not required to interview a referred applicant merely because credibility is in issue or merely because the Authority comes to a different view as to credibility than did the delegate.
[25]However, the Authority will act unreasonably if, without good reason, it does not invite a referred applicant to an interview in order to gauge his or her demeanour for itself before it decides to reject an account given by the referred applicant in an audio recorded interview which the delegate accepted in making the referred decision wholly or substantially on the basis of its own assessment of the manner in which that account was given. That is what happened in this case.”
The fast track review process prescribed in Part 7AA of the Act anticipates that the Authority will conduct its review of the delegate’s decision on the basis of the “review material” and, subject to the statutory exceptions contained in Part 7AA, without obtaining “new information” or affording the referred applicant a hearing. The mere existence of an informational gap between the material before the delegate and the material before the Authority does not of itself give rise to an obligation to seek new information. The delegate’s first-hand observation of the first applicant’s scarring was not something to which the Authority was privy. However, the delegate carefully described and made comment upon its direct observations in the recorded interview and the decision record. The Authority listened to the recorded interview and read the decision, both of which formed part of the referred material.
As the High Court held in ABT17 at [23] it is ordinarily open to the Authority to form its own assessment of the evidence taking into account such second-hand description or impression as might be conveyed expressly or by implication in the statement forming part of the review material which sets out the delegate’s findings of fact and refers to the evidence on which those findings were based. That is precisely what occurred here and it led the Authority to a similar finding.
I do not accept the applicants’ submission that the Authority rejected the delegate’s findings or reached conclusions about the scarring which were materially different from those reached by the delegate. There was not, in my opinion, an informational gap of the kind described in ABT17.
In the present case, the Authority did turn its mind to the request by the first applicant for an interview. The Authority had the discretion to invite him to an interview but was under no duty to do so. There was no compelling reason, in my opinion, for the Authority to seek further information from the first applicant. The Authority had sufficient information about the first applicant’s injuries to properly inform its decision-making and, in any event, it did not materially depart from the delegate’s own findings.
The Authority discharged its statutory task pursuant to Part 7AA of the Act. The decision not to invite the first applicant to an interview or seek further information from him was not unreasonable. Ground one does not reveal jurisdictional error and must be dismissed.
Ground two: Reliance on outdated country information
By ground two, the applicants contend that the Authority relied on outdated country information and failed to rely on the most recent information available to it.
The applicants contend that the 2018 DFAT report, which was released after the delegate’s decision and was received as new information by the Authority, contained a statement that it expressly replaced the previous 2016 DFAT report on Iran. Only the 2016 report had been before the delegate.
The applicants submit that the Authority relied upon the 2016 DFAT report on Iran rather than the “materially different”[28] 2018 DFAT report, and by doing so the Authority made an incorrect and diminished assessment of the risks of harm to the first applicant on account of his apostasy and his expression of anti-Islamic and anti-government sentiment in his two Facebook posts in 2017.
[28] Applicant's Outline of Submissions at [26]
Applicants’ submissions
In his submission to the Authority, the applicants argued that on return to Iran he would be compelled to act discretely with respect to his political and religious beliefs and criticisms of the government.
Based on his renunciation of Islam, the first applicant claimed to fear harm on the basis of apostasy. The Authority accepted the factual premise that constitutes apostasy, namely that the first applicant had been born a Muslim but now does not believe in any religion[29]. However, the Authority did not accept that the first applicant had come to the attention of the authorities for reasons of his non-belief in Islam, or religion generally, or for the expression of anti-government views while in Iran.
[29] Authority’s reasons at [44]
The Authority also accepted that the first applicant had posted two Facebook posts in 2017 that “would be viewed as anti-Islamic or anti-government”[30]. These posts had been made while the applicant was in Australia.
[30] Authority’s reasons at [46]
In relation to the applicant’s religious and political views, the Authority at [45] found as follows:
“The 2016 DFAT report indicates that the official religion of Iran is Shia Muslim and that a Muslim who leaves his or her faith or converts to another religion or atheism can be charged with apostasy. However, it is unlikely that individuals will be prosecuted for apostasy and highly unlikely that the government would monitor religious observance by Iranians. Whether or not a person regularly attends mosques or participates in religious occasions such as Ashura or Muharram or that a person is no longer faithful to Shia Islam is unlikely to come to the attention of the authorities, and apostates or atheists are only likely to come to the attention of the Iranian authorities through public manifestations of their new faith and seeking to publicise their views. The 2018 DFAT report does not suggest that monitoring of religious practices by the authorities have increased. The information before me also suggests that Iranians are able to criticise the government of the day robustly, both in public conversation and online in social media. However, this freedom is not unlimited, as there are a number of well-established ‘redline’ topics which are not to be crossed. These include respect for the Supreme Leader, the constitution and territorial foundation of the Islamic Republic and the place of Shia Islam in Iran.”
The applicants’ submissions focused substantially on the Authority’s reasons at [45]. The applicants submit that the Authority’s reliance on the 2016 report led to the Authority not recognising dramatic differences between the two documents. The applicants submit that there is no proper recognition that the 2018 report replaced the 2016 report and that there is no evaluation or explanation for relying on the superseded report.
The applicants contend that material differences between the earlier and more recent report directly impacted the assessment of the first applicant’s claims, in particular the first applicant’s claims to be an apostate and an online advocate of anti-Islamic and anti-government views.
To illustrate differences in the two reports, the applicants cite the example of the 2016 DFAT report which stated that there had been no known death sentences for apostasy since 2011. The report described a death sentence imposed upon a person engaged in proselytising but noted that the sentence had later been commuted. Based on that information DFAT reported that it “considers it unlikely that individuals would be prosecuted on charges of apostasy”. In 2016 DFAT also reported that it was highly unlikely that the Iranian government would monitor religious observance.
The applicants argue that the subsequently published 2018 DFAT report on Iran was “dramatically different” in relation to apostasy. The later report included reference to a then recent case in which a man had been sentenced to death for apostasy because of social media posts made in 2015. The applicants note that the earlier 2016 report made no mention of Iranian authorities monitoring social media.
In paragraph [45] of its reasons, the Authority found that “[t]he 2018 DFAT report does not suggest that monitoring of religious practices by the authorities have increased”. By this statement, the applicants submit that the Authority ignored the fact that the death sentence was once again being imposed for apostasy, including for people posting social media posts that the authorities found objectionable. The applicant submits that the imposition of the death sentence in respect of matters for which he sought protection (apostasy and social media engagement) required the Authority to assess his claims against the most recent available information.
As to the significance of up-to-date country information in the discharge of the Authority’s statutory task, the applicants rely upon Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 (MZYTS). In that case, the Tribunal had received submissions relating to how volatile and dangerous the situation would be “on the ground” in Zimbabwe for people who were or were perceived to be members of the MDC, particularly when an election was announced, and in its aftermath. The Tribunal considered earlier country information, but its reasons disclosed no evaluation, and no consciousness of the contents of, more recent material.
In MZYTS the Full Court observed that[31]:
“Whatever might be the general principle that administrative decision-making should be based on the most up-to-date information (see Peko-Wallsend 162 CLR 24 at 45) in the context of decision-making about s 36(2)(a) of the Migration Act and Art 1 of the Convention, attention to current information is not merely preferable, it is a core aspect of lawful formation of a state of satisfaction. This is, as we have endeavoured to explain, because of the predictive and speculative nature of the task involved in determining whether a person’s fear of persecution for a Convention reason on return to her or his country of nationality is well-founded.”
[31] Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 at [73] (MZYTS)
In the present case, the applicants submit that the 2016 and 2018 DFAT reports were materially different in a way that impacted directly on the assessment of the protection claims. It is submitted that by relying on the outdated report, the Authority fell into error of the sort described in MZYTS.
Minister submissions
The Minister contends that this second ground of attack on the Authority’s decision must fail for a number of reasons.
First, the Minister submits that any suggestion that the Authority failed to consider the 2018 DFAT report is a false premise. The Minister notes that the Authority of its own volition introduced the 2018 report as new information by exercising its power to do so. The Authority’s reasons clearly disclose consideration of the more recent report at [45], [50] and [52].
Moreover, this is not a case like MYZTS where the decision-maker failed to have regard to the most recent country information at all. In the instant case, the Minister submits that the reference to the 2018 DFAT report in [45] of the Authority’s reasons was substantive not merely cursory. The Authority did not simply conclude that the 2018 report “does not suggest that the monitoring of religious practices by the authorities have increased”. The Minister points out that the next three sentences of the Authority’s reasons, commencing with the reference to “[t]he information before me”, appear to have been lifted directly from the 2018 DFAT report[32] .
[32] 2018 DFAT report at [3.48], [3.70]
Secondly, any judicial mandate requiring the consideration of the most recent country information, does not exclude consideration of an earlier report. The Full Court in MZYTS did not say that decision-makers could not rely on country information which was several years old. At [74] the Full Court stated:
“That is not to say decision-makers cannot rely on information which is several years old. They may do so lawfully as part of a weighing process after considering all information available to them, and deciding which information best and most reliably supports the prediction of future risk they are called on to make. Perhaps more recent information simply confirms older and more detailed information. Perhaps the older information is more specific to the visa applicant’s circumstances. Perhaps more recent information is from less reliable, or tainted, sources. There are many possibilities about why a decision-maker may choose, lawfully, to rely on older information and still perform the task required by s 36(2)(a) and Art 1. In such cases, one would expect the Tribunal’s reasons to disclose this kind of evaluation process, and the conclusion it reached would be within its jurisdiction.”
The fact that the 2018 DFAT report is stated to “replace the previous [2016] DFAT report”[33] does not mean that the earlier report is irrelevant and cannot also be considered[34]. An earlier report might be relied upon if, for example, a more recent report was silent on an issue dealt with in the earlier report[35]. Alternatively, an earlier report might be cited and relied upon as a reference point for the purpose of comparing more recent developments - as appears to be the case here.
[33] 2018 DFAT report at [1.5]
[34] FFR19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 894 at [53]; BMP15 v Minister for Immigration and Border Protection (2018] FCA 1291 at [35]
[35] E.g. AYC18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No.2) [2023] FCCA 1637, endorsed on appeal in AYC18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 1502 per Banks-Smith J
The Minister submits that in a functional sense, the Authority considered the older material on monitoring of religious practices and found that the more recent 2018 DFAT report did not change the position. It was permissible to use the 2016 DFAT report as part of the weighing process where the “more recent information simply confirms older and more detailed information”[36].
[36] MZYTS at [74]
The Minister also submits that there was no requirement for the Authority to give an explanation for its preference for older material over new material. It is conceded that such an explanation would be required where there was an obvious conflict between the two sources. However, in the present case the 2018 report was consistent with, or at least did not contradict, the 2016 DFAT report in relation to the monitoring of religious practices by the Iranian authorities.
The Minister concedes that there is no reference in the Authority’s reasons to the 2018 DFAT report of a man having been sentenced to death for apostasy because of social media posts made in 2015. However, the Minister submits that it would be wrong to infer that the Authority did not consider that information. The more obvious inference, noting the Authority’s acknowledgement of the more recent report, is that the Authority did consider this information but did not consider it material or worthy of specific comment as part of the weighing exercise.
Finally, the Minister submits that any error by the Authority to consider the 2018 DFAT report in relation to the risk of social media monitoring (a point about which the 2016 report is said to be silent) is immaterial because the later report is less helpful to the applicants.
The Minister submits that the first applicant’s social media posts occurred while he was in Australia, unlike the circumstances which pertained to the social media activist who was sentenced to death in 2015. The 2018 DFAT report was more specific about the issue of social media following, noting that “[…] Iranian authorities have little interest in prosecuting failed asylum seekers for activities conducted outside Tehran, including in relation to protection claims. This includes posting social media comments critical of the government […]” (emphasis added).
The Minister submits that the observations in the 2018 DFAT report lend no assistance to the applicant’s claimed fear of persecution for having made two Facebook posts from Australia in 2017. Any failure on the part of the Authority to have considered this aspect of the 2018 report (which the Minister does not concede) should be taken to be immaterial error.
Consideration
The applicants’ submissions fail to persuade me that the Authority fell into error, let alone material error.
As Banks-Smith J neatly observed in AYC18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1502 at [63] this ground cavils with the decision-maker’s findings relating to matters within the Authority’s area of decisional freedom, including fact-finding and the weighing of country information.
Unlike MYZTS the Authority here was not oblivious to the 2018 DFAT report. The Authority introduced the report as an item of new information. It referred to the 2018 report at various places in its reasons and footnoted the report elsewhere. In reaching its conclusions at [45] the Authority referred to “the information before me” which, in the context of the paragraph as a whole, included consideration of both the 2016 and 2018 DFAT reports.
In my view the Authority did not express a preference of the older information over the new. Read fairly, the conclusion at [45] that the 2018 report did not suggest that monitoring of religious practices by the authorities had increased, was a comparative conclusion open to the Authority. The finding was the product of an evaluative and weighing exercise involving permissible consideration of the older and more recent information as a means of undertaking the predictive task[37].
[37] As in MYZTS at [74]
There was not an obvious conflict between the two reports. I do not accept the applicants’ description of them as being “materially” or “dramatically” different. For that reason, there was no obligation on the part of the Authority to explain in detail the manner on which it considered each of them. The operative finding that the 2018 report did not reveal an increase in monitoring practices did not call for further explanation. In any event, this was not a case where the earlier report prevailed – the two were considered as part of the body of information before the Authority.
In view of these observations, ground two should be dismissed on the basis that it does not reveal jurisdictional error.
For completeness, should I be wrong about that, I agree with the Minister that the error should be regarded as immaterial. The Facebook posts were posted in Australia, some years after the first applicant’s arrival. The thrust of the 2018 DFAT report is that the Iranian authorities have little interest in the activities of former asylum seekers while outside the country, including in relation to social media activity. If the 2018 DFAT report was to prevail as a source of relevant information, as contended for by the applicants, I do not believe there is any realistic possibility it could have resulted in a different conclusion or a different outcome on the review.
DISPOSITION
For the reasons set out above, the applicants have failed to persuade the Court that the decision of the Immigration Assessment Authority was affected by jurisdictional error.
The application for judicial review should be dismissed.
The applicants should pay the Minister’s costs of the application. In the absence of agreement between the parties as to costs, the costs are to be determined in accordance with the scale set out in Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
I certify that the preceding ninety-nine (99) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes. Associate:
Dated: 19 March 2024
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