FNE18 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 130
•7 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FNE18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 130
File number: MLG 3130 of 2018 Judgment of: JUDGE SYMONS Date of judgment: 7 February 2025 Catchwords: MIGRATION – protection visa – application for judicial review of a decision of the Administrative Appeals Tribunal – where applicant claimed fear of harm due to knowledge of corruption within the ranks of Sepah – where applicant provided further statutory declaration in response to request from delegate – where Tribunal made no reference in its statement of reasons to the statutory declaration – whether proper inference that Tribunal failed to consider the statutory declaration – where statutory declaration involved a restatement of information contained in an earlier statutory declaration – no jurisdictional error – application dismissed with costs in fixed amount Legislation: Migration Act 1958 (Cth), ss 65, 418
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)
Cases cited: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152; [2024] HCA 12
Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67; [2014] FCAFC 16
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317
Division: Division 2 General Federal Law Number of paragraphs: 47 Date of last submissions: 12 November 2024 Date of hearing: 12 November 2024 Place: Melbourne Counsel for the Applicant: Ms A Martyn Solicitor for the Applicant: Asylum Seeker Resource Centre Counsel for the First Respondent: Mr L Chircop Solicitor for the First Respondent: Australian Government Solicitor Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 3130 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FNE18
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE SYMONS
DATE OF ORDER:
7 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to “Minister for Immigration and Multicultural Affairs”.
2.The name of the second respondent be amended to “Administrative Review Tribunal”.
3.The application filed on 19 October 2018 and amended on 17 May 2024 be dismissed.
4.The applicant pay the first respondent’s costs fixed in the amount of $8,371.30.
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 SYMONS:
INTRODUCTION
By an application filed on 19 October 2018 and amended on 15 May 2024, the applicant seeks judicial review of a decision of the second respondent (Tribunal) made on 24 September 2018. The Tribunal affirmed a decision of a delegate of the first respondent (Minister) to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
BACKGROUND
The applicant is a citizen of Iran who arrived in Australia on 18 February 2014 on a visitor visa.
On 11 April 2014, the applicant made an application for a protection visa (CB 12-69).
On 11 August 2015, the applicant made a statutory declaration in which he identified his claims for protection as follows (CB 74-77):
·The applicant commenced employment in the capacity of Expert of Contract Affairs with a company in the oil industry in March 2007.
·In December 2008, the applicant was transferred to a role working in the legal and contracting department of an oil company in the Bahregan region of Iran. While working in this role, the applicant became suspicious of a former high-ranking official of Sepah, MA.
·The applicant began investigating the old contracts that the company had made and discovered widespread corruption relating to deals facilitated by MA and which involved profitable transactions that were linked to high profile members of the Revolutionary Guard. The process was that associates of MA would set up shell companies and engage in bid rigging for contracts to maximise the amount of money MA would receive.
·MA became aware of the applicant’s knowledge regarding this corruption and attempted to bribe him, by offering him a share of profits he had obtained.
·When the applicant refused the bribe, MA made threats towards the applicant’s life and family. He told the applicant he had “entered a dangerous game” and that this might lead to an “accident” involving himself or his family. The applicant feared MA because he was a brutal man and because of his background and connections to Sepah and his association with a local MP, MM. The applicant described MA and MM as forming a “very strong and influential circle” which made it impossible to make any form of complaint to the authorities.
·Given his fear of reprisal, the applicant decided not to return to his employment and in around April 2012 returned to his home in Tehran where he collected his belongings and then moved around Tehran and Karaj for a period of approximately 20 months.
·On 17 February 2014, the applicant came to Australia.
On 30 July 2015, the (then) Department of Immigration and Border Protection (Department) invited the applicant to attend an interview on 31 August 2015, which he did (CB 89-92).
On 2 September 2015, the Department made an informal request for a further statutory declaration from the applicant that contained “a clearer explanation of how far up the power structure in Iran he believes this corruption goes as well as his reason for believing that it goes beyond one or two corrupt individuals in Sepah” (CB 93).
On 15 September 2015, the applicant provided a further statutory declaration (CB 94). It read:
1. I would like to add to the statutory declaration that I have already submitted to the Department of Immigration and Border Protection.
2. The corruption I uncovered went deep into the Sepah organization, and high into the government.
3. Even. though the specific corruption that I uncovered concerned MA as the orchestrator of the sham companies and therefore false tenders, the sheer amount of money involved in the contracts that was siphoned into the "successful" tending body was massive.
4. This indicated to me that MA was part of a large organized group.
5. All the funds filter through to the higher ranks of the Government. to MPs who are mostly from Sepah.
6. The corruption in Sepah is very well documented.
7. The Government says publically that it is a bad thing, but there have been very few real prosecutions, and of ·these, even fewer people have been punished. This is another indication to me that the corruption in Sepah goes very deep into the organization.
8. Even though they are seemingly untouchable, the proof that I could provide in a prosecution would be technical, specific and accurate, and this is what unsettled the perpetrators of the corruption who then brought the threats against me. This is why I fled Iran.
On 21 October 2015, a delegate of the Minister refused the application for the visa (CB 96-113).
On 9 November 2015, the applicant made an application to the Tribunal for review of the delegate’s decision (CB 114-115).
On 31 January 2018, the applicant was invited by the Tribunal to attend a hearing on 14 March 2018 (CB 127-130).
On 14 March 2018, the applicant attended the hearing, accompanied by his representative and an interpreter in the Persian language.
On 25 September 2018, the Tribunal affirmed the delegate’s decision to refuse to grant the protection visa and produced a set of written reasons (R) (CB 183-198). In summary, the Tribunal accepted that there was a level of corruption in the oil industry but rejected the applicant’s claim to apprehend harm from MA and his affiliates or from senior figures in Sepah, based on his possession of information. Its reasons for doing so are encapsulated in R [65]-[69], which I have chosen to reproduce in full given their significance to the applicant’s single ground of review.
65. The applicant in his written claims states that he feared being eliminated as he had threatened the interests of senior figures in Sepah because of the corruption laws in Iran. He stated that they are concerned that if there is a change of Government in Iran they will be implicated in the corruption and executed for their criminal activities. He claims to be a source of the evidence against them. The applicant did not identify any of the Sepah officials who he says may be implicated by his evidence. In addition, his evidence was that he had not removed or copied any of the contracts, accounts and other documents evidencing the corruption. Therefore, in circumstances where he does not have any documentary evidence to support his claims of corruption and he cannot identify the Sepah officials implicated any evidence the applicant has of corruption is likely to fail. Accordingly, the Tribunal does not accept the applicant’s claim that he is a source of evidence against them and finds that he has not threatened the interests of senior figures in Sepah as claimed.
66. While the country information suggests that there is likely to be corruption in the awarding of contracts, the Tribunal does not accept there is a real chance the applicant will be seriously harmed in the event he is returned to Iran by reason of his knowledge of such corruption. The applicant never made an official complaint against anyone for the alleged corruption. As such, there is no risk that MA, MM or any other Sepah officials will come to the attention of the authorities. In circumstances where there is widespread corruption in Iran with institutional owners being well connected to religious foundations and Sepah itself, the likelihood MA and any member of Sepah being prosecuted and convicted of any criminal activity is low.
67. Therefore, while the Tribunal accepts that upon the applicant confronting MA with the corruption allegations, he was threatened, it does not accept that in all the circumstances, the threat by MA constituted persecution for the purposes of s. 36(2)(a) of the Act. In fact the applicant’s evidence was that when he returned to Tehran and Karaj he did not receive any threats from MA or any other Sepah official. There was no evidence that MA or any other person had made enquiries of friends and family as to the applicant’s location. In circumstances where Sepah is a government agency with large resources, it is reasonable to assume that if the applicant’s life was in danger as claimed, they would have made all necessary enquiries to find him. Instead it appears that no interest was taken in the applicant’s location and whereabouts. The fact that he was able to leave the country without difficulty or risk of being stopped at the airport upon his departure indicates that he was not a person of interest to members of Sepah. If he had been a real threat to an official of Sepah or member of parliament as claimed then one would expected him to have been detained at the airport on his departure from the country. Rather the applicant was able to leave Iran without incident.
68. In any event after more than four years in Australia it is unlikely that the applicant remains a person of interest to MA or any member of Sepah. Given the passage of time and the fact that he has no documentary evidence to support his allegations of corruption, it is extremely unlikely that he represents a threat to MA or any member of Sepah as claimed.
69. Accordingly, the Tribunal finds that there is not a real chance the applicant will suffer serious harm in by reason of his claim that he had knowledge of corruption in the tender process at his work region of Bahregan.
The Tribunal rejected the applicant’s claim to engage Australia’s complementary protection obligations for essentially the same reasons (R, [78]-[79]).
JUDICIAL REVIEW
The hearing of the applicant’s application for judicial review took place on 12 November 2024 on which occasion the applicant was represented by Ms Martyn of counsel and the Minister by Mr Chircop of counsel.
The applicant relied on his written submissions filed on 7 October 2024. The Minister relied on his written submissions filed on 28 October 2024.
The single ground in the amended application states:
The Administrative Appeals Tribunal erred when exercising its statutory task under s 415 of the Migration Act 1958 (Cth) in that it did not deal with the material in the applicant’s second statutory declaration dated 15 September 2014 (CB 94).
The applicant’s submissions
The applicant submitted that the Tribunal was obliged to have regard to his second statutory declaration (reproduced at [7] above) when evaluating his claims for protection.
The obligation was said to arise having regard to the issues that the second statutory declaration was directed at and the significance of those issues to the outcome of the application.
The applicant identified the “issues” as being concerned with (1) how far up the State political hierarchy the applicant believed the corruption that he was aware of had reached; and (2) the ability of the applicant to prove that corruption.
The applicant submitted that the significance of these issues to the outcome of the application could be discerned firstly from the fact that the delegate sought out information related to the first issue (refer [6] above) and secondly, because the Tribunal’s reasons for affirming the delegate’s decision were based on the extent of the applicant’s knowledge of the corruption, the evidence he could provide, the connection between the corruption and members of Sepah, and the level of interest Sepah would have in the applicant. These were all said to be matters raised by the second statutory declaration.
The applicant submitted that given the significance of the second statutory declaration, its absence from the Tribunal’s written decision record was indicative of omission and ignorance, rather than reflecting a view taken by the Tribunal that it was not material.
The applicant submitted on the question of materiality that had the Tribunal considered the second statutory declaration it could have reasoned differently with respect to the extent of the applicant’s knowledge of the corruption, the evidence he could provide, the connection between the corruption and members of Sepah, and the level of interest Sepah would have in the applicant.
The applicant acknowledged that the Tribunal had recorded findings at R [65] about the lack of documentary evidence to support the claims of corruption and his inability to identify the Sepah officials concerned. The applicant submitted that his statement in the second statutory declaration that “the proof that I could provide in a prosecution would be technical, specific and accurate and that is what unsettled the perpetrators of the corruption who then brought threats against me” was information that had not been referred to by the Tribunal and, I infer, was capable of altering the course of the Tribunal’s reasoning on this point.
The applicant made a similar submission about the statement in the second statutory declaration that the “money involved in the contracts that was siphoned into the ‘successful’ tending body was massive…[and] the funds filter through to the higher ranks of the Government, to MPs who are mostly from Sepah”. This information was said to be significant to the level of interest Sepah would have in the applicant, notwithstanding his ability to leave the country and the passage of time that had elapsed, these being matters that concerned the Tribunal at R [67] and [68]
The applicant submitted that it would involve improper speculation for the Court to attempt to discern how the Tribunal would have reasoned had it engaged in the required process of evaluating the material in the second statutory declaration (referring to LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 at [36]).
The Minister’s submissions
The Minister submitted that the Tribunal did not commit an error by failing to consider the second statutory declaration. This was for two reasons. The first being that the proper inference to draw was that the Tribunal did in fact consider the document. The second being that even if the Tribunal had failed to consider the second statutory declaration, this did not cause the Tribunal to fail to consider the applicant’s claims.
As to the first reason, the Minister submitted that the following considerations operated to support an inference that the Tribunal did consider the second statutory declaration.
First, the second statutory declaration was physically before the Tribunal. This was said to follow from the fact that the second declaration was referred to by the delegate, was relevant to the Tribunal’s review of the delegate’s decision, and so would have been provided to the Tribunal by the Secretary in accordance with s 418 of the Act.
Second, the second statutory declaration was of no significance. This characterisation was said to reflect the fact that the second declaration was less than a page long and merely restated, in summary form, claims that had appeared in the first statutory declaration. In circumstances where there was no doubt that the Tribunal had carefully considered the applicant’s first declaration in its reasons, the proper inference to draw was that the Tribunal did consider the second declaration but did not refer to it because the Tribunal found it not to be material (refer Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67 at [34]).
Third, the fact that the Tribunal did not refer to the second declaration was entirely explicable having regard to the different paths of reasoning adopted by the delegate and the Tribunal. The delegate had accepted that, as a result of MA’s threats, the applicant had a well-founded fear of persecution and was at real risk of significant harm if he returned to Bahregan (CB 109). As a result, it was necessary for the delegate to consider the question of relocation. In that context, the delegate asked the applicant to provide further information relating to the extent of the corruption as this was capable of bearing on whether the applicant could safely relocate within Iran.
The Tribunal, on the other hand, accepted that the applicant had knowledge of corruption (R, [60]) but did not accept that the applicant had a well-founded fear of persecution, or that he was at real risk of significant harm as a result of MA’s threats (R, [69], [78]). This made it unnecessary for the Tribunal to consider whether the applicant could safely relocate within Iran or to consider how far up the power structure in Iran the corruption went.
Fourth, the Tribunal’s reasons were described as “otherwise comprehensive” and dealt with the sole basis on which the applicant claimed to be owed protection obligations (knowledge of the corruption carried out by MA) in some detail.
The Minister submitted in the alternative that even if the Tribunal had failed to consider the second declaration, such failure did not result in error. This was because the applicant had made detailed claims about his fear of reprisal based on knowledge of corruption in the first statutory declaration and the Tribunal had carefully considered that document. The second statutory declaration was said to contain nothing which meaningfully added to, or amplified, the claims made in the first declaration. On a side-by-side comparison, it was evident that the second declaration merely restated, in summary form, claims that had been put in the first declaration.[1]
[1] The Minister produced an annexure to his submissions that I treated as an aide memoire at hearing, and which is reproduced as Annexure A to these reasons for judgment.
The Minister also put materiality in issue. He submitted that in circumstances where the second statutory declaration did not add meaningfully to the first statutory declaration, the Tribunal’s decision could not realistically have been any different if there had been no error. In other words, even if the Tribunal had considered the second statutory declaration, the possibility of a different outcome was “fanciful” and “improbable” with the outcome “inevitably the same” (referring to LPDT at [14], [16]).
RESOLUTION
The resolution to this ground of review lies not in any distinction between claims and evidence (although in some cases this distinction might prove decisive) but instead on “the importance of the material to the exercise of the Tribunal’s function” as determined by the quality of the material and its place in the assessment of the applicant’s claims.[2]
[2] Refer Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [111]-[112].
The difficulty with the applicant’s analysis is that it focuses on the issues referred to in the second statutory declaration rather than the quality of the information (directed at such issues) that it contained.
In this respect, I accept the submission of the Minister that the information contained in the second statutory declaration did little more than summarise the information contained in the first statutory declaration but with different emphasis that was likely explained by the request from the delegate that prompted its creation. The Annexure A document, which I have independently evaluated as against the two statutory declarations, reveals that aside from a reference to the Sepah ranks including MPs, the information conveyed in the second statutory declaration was in substance the same as that already before the Tribunal, including I might add, information provided by the applicant during the Departmental interview or at hearing.[3]
[3] At R [65], for example, the Tribunal referred to evidence concerning a change of government and the failure of the applicant to remove or copy contracts, accounts and other documents, that did not appear in either of the applicant’s two statutory declarations and which I infer was evidence given orally.
While the delegate made explicit reference to the second statutory declaration in his decision record, he found the document did not shed any further light on the extent of corruption uncovered by the applicant. At CB 108 the delegate recorded:
The applicant has not satisfied me that the corruption that he uncovered is any more than the small corruption operation designed to enrich a few individuals, admittedly with apparent past links to Sepah, who were employed in the Iranian Offshore Oil Company. His statutory declaration 15 September 2015 makes general claims in regard the scale of the corruption but was unable to provide any evidence to support his claims…
While the Tribunal was not bound by this appraisal of the second statutory declaration it does to my mind, reinforce my own conclusion that the information which it conveyed did not in any material way alter the substance of, or add detail to, the applicant’s claim to have uncovered corruption that extended through the ranks of Sepah or that he had evidence that would prove what he had uncovered.
In this case, I am satisfied therefore that the proper inference to be drawn is that the Tribunal considered the second statutory declaration but did not refer to it in its statement of reasons because it did not advance the body of material that was directed at the applicant’s claim to apprehend relevant harm because he possessed incriminating information about MA and/or Sepah.
The Tribunal expressly considered but rejected the applicant’s claim that his discovery extended beyond and would have implications for the senior levels of Sepah, rather than being localised to MA. The Tribunal was not persuaded that the applicant had threatened the interests of senior officials because he was unable to identify any of them and he was unable to produce documentary proof of the transactions in which they were said to be involved.
I acknowledge that the threshold for establishing materiality is low, but I consider this to be a clear case in which it can be said, by reference to the reasons in fact given by the Tribunal, that had (against my finding) the Tribunal failed to consider the second statutory declaration, the counter-factual would not have yielded a different result. In other words, I am not satisfied that “there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred”.[4]
[4] LPDT at [7]
The applicant suggested that the Tribunal might have taken a different view of his profile had it understood that his claim extended to “multiple MPs” and that this might have altered the outcome of the review. I am not persuaded by this argument. The Tribunal’s reasons should be understood as involving a finding that the applicant had not threatened the interests of (any) senior figures of Sepah, which finding was bolstered by the applicant’s evidence that he had not experienced any difficulty upon return to Tehran and Karaj or upon departing Iran (R, [67]) and the inference drawn by the Tribunal that the passage of time would have ameliorated any residual interest in the applicant in any case (R, [68]).
The applicant also submitted that the Tribunal’s finding about his ability to provide proof of the corruption might have been different had it taken account of his statement that he was able to provide proof that was “technical, specific and accurate”. However, in circumstances where the Tribunal rejected the applicant’s claim to be a source of evidence of corruption based on his inability to produce documentary evidence, which finding in turn was based on the applicant’s evidence that he had not removed or copied, contracts, accounts or other documents related to the corrupt transactions, I am not convinced that there was a realistic possibility that consideration of this statement would have produced a different result.
Ground one is not made out.
ORDERS
In circumstances where the applicant has failed to establish jurisdictional error in the decision of the Tribunal, I will order that the application for judicial review filed on 19 October 2018 and amended on 17 May 2024 be dismissed.
I will also order that the applicant pay the costs of the first respondent fixed in the amount of $8,371.30, which is the amount prescribed by the scale set out in the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) for a proceeding concluded at final hearing and which amount the parties agreed would be an appropriate indemnity in the event that they enjoyed success on the review.
I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons. Associate:
Dated: 7 February 2025
Annexure A
Second Statement (CB 94) First Statement (CB 74-77) 2. The corruption I uncovered went deep into the Sepah organization, and high into the government. 2. I uncovered a high level of corruption within the oil industry, which led to my life being threatened by the Revolutionary Guards.
9. I have information on the huge corruption in the Revolutionary Guard (Sepah), who are in charge of all major infrastructure projects.
33. I later realised that these transactions were actually linked to many other leaders and high ranking Sepah officials, who had gained billions through these contacts.3. Even though the specific corruption that I uncovered concerned MA as the orchestrator of the sham companies and therefore false tenders, the sheer amount of money involved in the contracts that was siphoned into the “successful” tending body was massive.
4. This indicated to me that MA was part of a large organized group.10. It is well known that Sepah pocket much of the money allocated for infrastructure programs, and also accept huge bribes from companies seeking to either build the infrastructure or drill for oil or mine for resources.
33. [extracted above]5. All the funds filter through to the higher ranks of the Government to MPs who are mostly from Sepah. 33. [extracted above]
35. In March 2012 I had discussions with some of the so called contractors that represented these companies. They plainly admitted that they got some shares of the profits, however, the majority of the funds went to MA and many other Sepah who supported him.6. The corruption in Sepah is very well documented. 10. [extracted above]
20. Sepah are well-known to the community as powerful officers of the State of Iran involved in corruption (ie. oil smuggling, unlawful imprisonment and murder of civilians whom fought against the revolution).7. The Government says publically that it is a bad thing, but there have been very few real prosecutions, and of these, even fewer people have been punished. This is another indication to me that the corruption in Sepah goes very deep into the organization. 39. … Reporting my knowledge to the police was not an option, as the police would also refuse assistance where Sepah was involved. 8. Even though they are seemingly untouchable, the proof that I could provide in a prosecution would be technical, specific and accurate, and this is what unsettled the perpetrators of the corruption who then brought the threats against me. This is why I fled Iran. 16. … While setting up this office I was sent all the old and current contracts from Tehran.
27. Being suspicious of MA, and as an auditor, I started to investigate old contracts that the company had made.
32. I found out that many of the contracting companies who had won the tenders did not actually exist. Although they seemed to have been registered, these companies had no address or funds or experience and were not even a proper organisation.
35. [extracted above]
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