FQL18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 641
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
FQL18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 641
File number: MLG 3197 of 2018 Judgment of: JUDGE RILEY Date of judgment: 21 July 2023 Catchwords: MIGRATION – Immigration Assessment Authority – Safe Haven Enterprise Visa – whether the Authority’s findings were irrational. Legislation: Migration Act 1958 s.65 Cases cited: DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175; (2018) 353 ALR 641; (2018) 74 AAR 121; [2018] FCAFC 2
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; (2010) 115 ALD 248; (2010) 266 ALR 367; (2010) 84 ALJR 369; [2010] HCA 16
Division: Division 2 General Federal Law Number of paragraphs: 48 Date of hearing: 20 April 2023 Place: Melbourne Counsel for the Applicants: Adam McBeth Solicitor for the Applicants: Bardo Lawyers Counsel for the First Respondent: Mark Hosking Counsel for the Second Respondent: No appearance Solicitor for the First and Second Respondents: Sparke Helmore ORDERS
MLG 3197 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FQL18
First ApplicantAUO23 (BY HIS LITIGATION GUARDIAN FQL18)
Second ApplicantAND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First RespondentIMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
judge riley
DATE OF ORDER:
21 july 2023
THE COURT ORDERS THAT:
1.The decision of the Immigration Assessment Authority made on 19 October 2018 in matters numbered IAA18/05039 and IAA18/05040 be set aside.
2.The matters be remitted to the Immigration Assessment Authority for determination according to law.
3.The first respondent pay the applicants’ costs of the proceeding fixed in the sum of $8,371.30.
Note: The form of the order is subject to the entry in the court’s records.
Note: This copy of the court’s reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE RILEY:
INTRODUCTION
This is an application for review of a decision made by the Immigration Assessment Authority. In that decision, the Authority affirmed a decision of a delegate of the Minister not to grant the applicants Safe Haven Enterprise visas (“SHEVs”) pursuant to s.65 of the Migration Act 1958 (“the Act”).
Before the Authority, there were two applicants, a mother and her minor child. The application as filed in this court had only the mother as the applicant. At the hearing on 20 April 2023, the court gave the applicant leave to join her son as the second applicant, and appointed his mother as his litigation guardian.
The first applicant is a national of Iran and arrived in Australia by boat in July 2013. The second applicant was born in Australia in December 2017.
BACKGROUND
In their written submissions filed on 27 March 2023, the applicants provided the following background to this matter:
Procedural history
…
2.The first applicant is a national of Iran. She arrived in Australia by boat [in July 2013]. She met her current husband, who is a Feili Kurd from Iran, in Australia, and the couple married in July 2016. The first applicant applied for a Safe Haven Enterprise visa on 24 May 2017, after the statutory bar on boat arrivals applying for a protection visa had been lifted. Her husband was not included as a member of the applicant’s family unit on her visa application, as he had already made his own visa application.1
3.The first applicant is the mother of the second applicant, who was born in Australia [in December 2017]. When the second applicant was born to the first applicant and her husband, he was added to the first applicant’s visa application.2
…
The claims for protection
…
9.[The first applicant’s] claims related to events following her divorce from her first husband, [Mr X], whom she left because he was having an affair. She subsequently entered a temporary marriage with another man, [Mr Y]. The applicant claimed that her father considered that she had shamed the family by leaving her husband and [she] feared that he would kill her, as an ‘honour killing’, or seriously harm her.
10.The first applicant also claimed that police had raided her flat while she was asleep with [Mr Y]. The police were accompanied by [Mr X], who filmed the raid. She was beaten by the police and arrested for adultery – which carries the penalty of death by stoning – and with having sexual relations outside of marriage.
11.The first applicant was badly beaten by police. Both she and [Mr Y] were handcuffed and taken into custody overnight, before being taken before a court the following day.
12.The adultery charge was ultimately withdrawn after [Mr X] gave his consent, having first demanded money and jewellery from the first applicant. The first applicant was bailed in relation to the second charge, which as far as she knew remained active when she fled Iran.
13.The IAA expressly accepted the entirety of the first applicant’s evidence about the events before and after the raid and the raid itself, save that it did not accept that the first applicant had formally been charged with adultery or with engaging in relations with a man outside of marriage.8
14.[Mr X] made continuing threats to show the footage he had filmed during the police raid to the first applicant’s family, and demanded money and sex from the first applicant. While she was in Iran, she was able to pay him, but not since she fled to Australia.
15.Once in Australia, the first applicant also met a man named [Mr Z]. She confided in [Mr Z] about her past in Iran and [Mr Z] read the summary of the first applicant’s entry interview. However, [Mr Z] was violent towards her and after he put a knife to her neck, she called police and took out an intervention order against him. [Mr Z] retaliated by calling the first applicant’s family in Iran and telling them about the events there including the police raid and adultery charges. [Mr Z] also told the first applicant’s family that she had been involved with other men in Australia. This exacerbated the first applicant’s fear that her father would kill or seriously harm her if she returned to Iran, as her mother told her that her father had said that he would, because she had brought shame and dishonour on the family.
16.The first applicant also claimed to fear harm as an apostate. She was born into a Muslim family and raised with strict Islamic practice, as her father was very religious. However, she renounced Islam and is no longer a Muslim. The crime of apostasy carries the death penalty in Iran.
…
FN 1:Visa application form, CB 31.
FN 2:Correspondence from Department, CB 92 and 94.
…
FN 8:IAA decision record, [19], CB 324.
MATERIAL RELIED UPON
At the hearing before this court, the applicants relied upon:
(a)their application filed on 25 October 2018 and amended on 27 March 2023 (“the application”);
(b)the court book filed on 5 August 2020;
(c)their written submissions filed on 27 March 2023;
(d)the affidavit sworn by Rayan Hazim on 27 March 2023; and
(e)the joint bundle of authorities filed on 13 April 2023.
At the hearing before this court, the Minister relied upon:
(a)his response filed on 22 November 2018;
(b)the court book filed on 5 August 2020;
(c)his written submissions filed on 13 April 2023; and
(d)the joint bundle of authorities filed on 13 April 2023.
GROUND 1
The first ground of review in the application is:
The decision of the IAA was based on an irrational finding regarding the circumstances that caused the first applicant to fear harm from her father.
Particulars
(a) The finding that the first applicant did not refer to the adultery issue or any other circumstances relating specifically to her protection claims when questioned about her fear of being killed by her father was irrational.
(b) Further and alternatively, the finding that the father’s attitude will have changed was based on an unwarranted assumption and not based on any probative evidence before the IAA.
The test for irrationality was explained by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; (2010) 115 ALD 248; (2010) 266 ALR 367; (2010) 84 ALJR 369; [2010] HCA 16 at [131] where their Honours said:
… If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
The applicants said that the Authority rejected the first applicant’s claim to face an ongoing risk of violence or death from her father on two interrelated grounds. They were set out in paragraph 28 of the Authority’s reasons for decision, which is as follows:
I have considered the first applicant's claims in detail below and for the reasons stated, whilst I accept that she may have feared her father due to her past experiences, I find her claims of continuing personal threats of harm by her father implausible and somewhat exaggerated. By her own account, the first applicant has had no contact with her father since March 2012 and only communicates with her mother. The first applicant's personal circumstances have changed significantly since arriving in Australia and there is no evidence to indicate that her father's personal threats remain in place now that she is re-married and started a family of her own. Furthermore, when the delegate questioned the first applicant specifically in relation to her claim of being killed by her father, she only reiterated her fear of her father and did not refer to the adultery issue or any other circumstances relating specifically to her protection claims. I find this at odds with someone who genuinely believes that she risks being subjected to honour killing upon return to Iran. These factors combined support my finding regarding the exaggerated nature of the applicant's claims against her father. (emphasis added)
In relation to the Authority’s second reason in paragraph 28 of its reasons for decision, that:
… when the delegate questioned the first applicant specifically in relation to her claim of being killed by her father, she only reiterated her fear of her father and did not refer to the adultery issue or any other circumstances relating specifically to her protection claims …
the applicants submitted that the Authority had irrationally focussed on only a small portion of the first applicant’s interview with the delegate.
The transcript of the first applicant’s interview with the delegate is annexed to the affidavit sworn by Rayan Hazim on 27 March 2023. The applicants noted that the Authority, in its second reason, focussed on the following passage from page 90 of the transcript:
Delegate:We’ve spoken a lot about your family, et cetera. Is there anything you want to say – anything further you want to say about your claim that you fear harm from your father and that your father will kill you if you return to Iran? (emphasis added)
Applicant:I have always been, ah, fearful of my father. In Iran, um, a father can be completely abusive and nobody can complain because I am considered – you know, the children are considered to be property of their father and whatever they want, they can do to their children. So that’s why, because, um, Islamic rules and Islamic system does not support me in front of my father. I have always been frightened of my father, because each time he has started being physically abusive to me, he was completely aggressive and he used to beat me and bash me very badly. I couldn’t bear that.
However, the applicants submitted that the Authority overlooked that the delegate had asked the first applicant to give any further evidence about her fear of her father, and she had already said a lot about her adultery being the reason for her father intending to harm her. The applicants identified a number of passages from the transcript to make good that submission.
Firstly, the first applicant said at page 80 of the transcript:
… [Mr X] used to show up at my place saying … I’m dialling your father’s phone number and, um, I’m going to tell him what you have done and where you are living. And, um, my father really didn’t need anything like that footage to prove that I’m a baddie. He really, he already believed that I wasn’t a good girl. I don’t know why but he already believed that I wasn’t a good girl and I brought shame on the family. So by telling this to him, he just, um, could come and kill me in [my] place by knowing my address. (emphasis added)
Secondly, the following exchange occurred at page 85 of the transcript:
Delegate:In your statement, you mentioned you met a man, [Mr Z], in Australia and that he told your father what happened to you in Iran, including that you were going out with many different men and in your statement, you said that your father would kill you if you return to Iran, as a result of what [Mr Z] had told him. Is this correct? (emphasis added)
Applicant:Yeah.
Thirdly, at page 88 of the transcript, the first applicant reiterated to the delegate that Mr Z had already:
made the phone call to my mum and explained all of the things to my father
.…Fourthly, at page 89 of the transcript, the first applicant told the delegate:
When [Mr Z] made those harassment calls to my family, … the only thing that my father did was, um, shouting and yelling at my mum, saying that this is your girl; this is your daughter; that’s how you have raised her. … he was to be abusive with my mum.
Fifthly, at page 90 of the transcript, the following exchange occurred:
Delegate:In your statement, at paragraph 26 you claimed your father has disowned you. …
So what does that mean?
Applicant:He told my mum that … “for me, [the first applicant] is considered dead. I don’t recognise her as my daughter anymore.”
Delegate:When did this happen?
…
Applicant:2015.
There then follows the passage that the Authority relied upon:
We’ve spoken a lot about your family, et cetera. Is there anything you want to say – anything further you want to say about your claim that you fear harm from your father and that your father will kill you if you return to Iran? (emphasis added)
The applicants argued that it was irrational for the Authority to rely on the answer to that question, in isolation from the other evidence that the first applicant had previously given.
In addition, the applicants argued that the other reason relied on by the Authority, that:
The first applicant's personal circumstances have changed significantly since arriving in Australia and there is no evidence to indicate that her father's personal threats remain in place now that she is re-married and started a family of her own …
was based on an unfounded assumption not based on evidence. The assumption was that the first applicant’s father’s attitude to her adultery would have changed because she was now remarried.
Not only was that an assumption, it was contrary to the first applicant’s evidence. She said in paragraph 12 of her statement in support of her SHEV application that:
… My father believes that it is culturally and morally not acceptable for women to divorce. He told me that a woman should marry only once. When I persisted that I want to divorce him, he hit me to make me to stay with my husband. He did not even let me go outside of house. …
In other words, remarriage, if anything, would have been worse than being separated because it would have crystallised the cultural and moral shame. The Authority did not grapple with this evidence.
In any event, on the issue of an assumption, the applicants relied on DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175; (2018) 353 ALR 641; (2018) 74 AAR 121; [2018] FCAFC 2, where the Full Court said at [45]:
Thirdly, as the appellant submits, a consideration of the AAT’s reasons discloses that many of its findings were underpinned by unexpressed and unwarranted assumptions not based in any evidence. … the AAT took into account among other things “the lack of independent witnesses until recently, despite the fact that the applicant lives in a city which has a sizeable and visible homosexual population”. Among other objections that might be made to this line of reasoning, it is underpinned by an unwarranted assumption that if the appellant had truly been homosexual, he would have engaged in sexual relationships with a larger number of men. …
In addition to the finding about the effect of the first applicant’s remarriage being contrary to the evidence, the applicants argued that it was an unwarranted assumption, and therefore irrational.
The Minister said in his oral submissions on this point that the Authority had a lot more than the two reasons identified by the applicants for rejecting the claim that the first applicant was at risk of an honour killing by her father. The Minister said that the Authority dealt with the first applicant’s claim that she would face a real chance of serious harm from her father in Iran at paragraphs 24 to 34 of its decision record, which are as follows:
Fear of father
24.The first applicant claimed that her father was a very controlling, fanatically religious and physically abusive man who often beat her and her siblings. During the SHEV interview she described the impact of her father’s strict religious enforcement on her upbringing, and her willingness to marry the first male who sought her hand in marriage just so she could escape her family situation.
25.The first applicant also claimed that she returned to her father’s house in March 2012 when she discovered [Mr X]’s extra-marital affair. She stated that her father was no longer involved in her life after she got married and that she returned to his house in the hope that he had become more supportive of her over time. However, when she told her father she wanted to divorce [Mr X] and transfer her studies to [a different place], her father refused and started beating her. Her father considered it morally and culturally unacceptable for women to divorce and wanted her to return to [Mr X], and he opposed a divorce and the shame it would bring on the family. The first applicant stayed in her family's home for two to three weeks but as her father's aggression and physical violence intensified, she escaped one night after a particularly bad beating from her father.
26.The first applicant's oral evidence in relation to the above claims was natural and she displayed genuine emotion whenever she described the abuse she suffered at the hands of her father. I accept as plausible the applicant's claims that she feared her father at that time, that he did not approve of a divorce and that he may have been physically violent towards her.
27. The applicant made claims on the basis of honour-related violence and death at the hands of her father if he found out about the circumstances surrounding her adultery charge. According to the 2016 DFAT report, there are no reliable statistics concerning honour killings but the practice exists among a number of tribal minorities such as the Kurdish, Lur, Arab, Baluch and Turkish-speaking tribes.2 Though the practice is most prevalent in the provinces of Ilam and Khuzestan (where the first applicant's father resides), DFAT confirmed that honour killings are likely to be a rare occurrence among Persian Iranians – the ethnic group to which the first applicant and her family belongs.3 The first applicant’s representative acknowledged same in the IAA submission. There is no recent information before me to suggest the situation has changed.
28.I have considered the first applicant's claims in detail below and for the reasons stated, whilst I accept that she may have feared her father due to her past experiences, I find her claims of continuing personal threats of harm by her father implausible and somewhat exaggerated. By her own account, the first applicant has had no contact with her father since March 2012 and only communicates with her mother. The first applicant's personal circumstances have changed significantly since arriving in Australia and there is no evidence to indicate that her father's personal threats remain in place now that she is re-married and started a family of her own. Furthermore, when the delegate questioned the first applicant specifically in relation to her claim of being killed by her father, she only reiterated her fear of her father and did not refer to the adultery issue or any other circumstances relating specifically to her protection claims. I find this at odds with someone who genuinely believes that she risks being subjected to honour killing upon return to Iran. These factors combined support my finding regarding the exaggerated nature of the applicant's claims against her father. (emphasis added)
Fear of harm arising from [Mr X]’s actions
29.The first applicant claimed, and I accept, that [Mr X] accompanied the police on the night of the raid which he filmed on his mobile phone. She also claimed that he threatened to disclose the footage to her father in exchange for money, as well as over the internet if she did not have sexual relations with him. She indicated that the key motivating factors for her decision to leave Iran were the continuous threats and extortion by [Mr X] which caused her financial hardship, and fear of subsequent harm at the hands of her father should he become aware of the circumstances that led to her arrest. The first applicant's evidence with respect to these claims has been consistent during the arrival interview and primary visa application processes, and based on her oral evidence I consider as plausible her claims of threats and extortion by [Mr X] as a result of her vulnerability.
30.In the SHEV application, the first applicant claimed that her father would kill her in the name of religion and for dishonouring the family if he was informed of the raid and her arrest (noting my finding above with respect to her claimed charges). I am satisfied on the evidence that he was not aware of these details at the time the first applicant departed Iran as I accept she was still able to meet [Mr X]’s demands to prevent him from disclosing information to her father. However, I question the credibility of her subsequent claim during the SHEV interview in which she stated that [Mr X] eventually released the footage to her extended family once she departed Iran and could no longer meet his demands following her arrival in Australia. The first applicant clearly set out her claims with respect to the raid, existence of the footage and [Mr X]’s extortion attempts in her SHEV application, but made no mention of any released footage until the SHEV interview. On the basis that the footage was released due to her inability to meet [Mr X]’s demands once she departed Iran, I consider that the first applicant would have included this information in her SHEV application if [Mr X] informed her family of her past during the four years she was in Australia before her SHEV application was lodged. I consider the omission casts serious doubt on this aspect of her claim.
31.The first applicant claimed that she feared harm from her father and family more than the Iranian authorities however, I am not satisfied that [Mr X] released footage of the raid and arrest to the first applicant's family subsequent to her arrival in Australia. She has made no further claims with respect to any other actions taken by [Mr X] since being in Australia and given the passage of time, I do not consider that [Mr X] has any ongoing interest in the first applicant. For the above reasons, I am not satisfied that the first applicant will be considered to have committed a moral crime and damaged the family's honour as a result of [Mr X]’s actions and I do not accept that there is a real chance she will be harmed on this basis upon return to Iran.
Fear of harm arising from [Mr Z]’s actions
31.The first applicant claimed that she entered into a relationship with [Mr Z] in 2014 while in Australia and that he was physically abusive towards her. I accept that she had a relationship with [Mr Z] which resulted in an intervention order, a copy of which was before the delegate. The order was dated 30 September 2014 and expired on 29 September 2015.
33. The first applicant claimed that [Mr Z] knew about her past which she revealed to him after he read notes from her entry interview. I accept as plausible that [Mr Z] may have had knowledge of the circumstances which led the first applicant to leave Iran. However, I am not satisfied that he disclosed details of the first applicant's past or any other lies to her father in 2015 which subsequently placed her at risk of being killed by her father should she return to Iran. During the SHEV interview, she stated that her mother told her ‘a guy’ had been harassing them with phone calls. This in itself is not sufficient evidence that the calls took place, or that [Mr Z] was the caller.
34. The crux of the first applicant's claim rests on the threat her father made on her life in response to the alleged phone calls from [Mr Z], as stated in her SHEV application. It is noteworthy that she did not reiterate this claim in the SHEV interview. She stated that he never made any comments directly to her but told her mother that he did not recognise the first applicant as his daughter anymore and that he disowned her. I find the absence of any claims of threats in the SHEV interview of being killed by her father as a result of harassing phone calls, undermines this critical aspect of the applicant’s claims, and is not commensurate with the claimed fear of harm. I am not satisfied that the first applicant faces a real chance of harm from her father on this basis.
FN 2:DFAT, “Country Information Report – Iran”, 21 April 20166, CIS38A8012677, 4.2.
FN 3:Ibid.
The Minister noted particularly that, in paragraph 27 of the Authority’s reasons for decision, it said that:
… DFAT confirmed that honour killings are likely to be a rare occurrence among Persian Iranians – the ethnic group to which the first applicant and her family belongs.
However, the words preceding that passage are also significant:
… the practice [of honour killing] is most prevalent in the provinces of Ilam and Khuzestan (where the first applicant's father resides) …
Obviously, it matters little if honour killings are generally rare if one happens to be the victim of that practice. Also, obviously, people’s attitudes can be shaped by their ethnic heritage, but also by their existing environment. In the present case, the first applicant’s father might have been disinclined to commit an honour killing because of his ethnic heritage, but inclined to commit an honour killing because of his existing environment in Khuzestan. It follows that the general prevalence of honour killings among Persian Iranians does not rationally support the Authority’s findings. It is also noteworthy that, whatever his attitude to honour killings, the Authority expressly accepted that the first applicant’s father had been physically violent towards the first applicant: [26].
The Minister then identified a further reason for the Authority’s conclusion that the first applicant was not at future risk from her father, being the statement in paragraph 28 of the Authority’s reasons for decision that:
… By her own account, the first applicant has had no contact with her father since March 2012 and only communicates with her mother. …
That is not a sound reason for the Authority’s conclusion. The first applicant explained why she had no contact with her father. It was because he considered her to be dead to him. The continuing lack of contact in fact bolstered the first applicant’s case, as it meant that her father had continued to disown his daughter, and had not “got over” his grievances against her. The Authority seems to have thought that the lack of contact over a prolonged period meant that the father had lost interest in his grievances against his daughter, as if he were a thug who had lost interest in a former victim. However, he was the first applicant’s father. If all had been forgiven, contact between the father and daughter would have been expected to have resumed.
The Minister then noted paragraphs 29 to 31 of the Authority’s reasons for decision. In paragraph 29, the Authority accepted that Mr X had accompanied the police in a raid and obtained video footage of the first applicant with another man. The Authority accepted that Mr X threatened to show the video to her father unless she paid him money, which she did until she left Iran.
In paragraph 30 of the Authority’s reasons for decision, the Authority said that it did not accept that Mr X had released the video footage to the first applicant’s father because the first applicant did not mention the release until the SHEV interview. That type of reasoning is questionable, because there could be many valid reasons for not mentioning a particular fact earlier, but I accept that it was rational, at least in the present case.
In paragraph 31 of its reasons for decision, the Authority considered that Mr X had no ongoing interest in the first applicant since she had been in Australia, and therefore she would not be harmed because of Mr X’s actions upon her return to Iran. However, the Authority failed to consider the impact on Mr X of the first applicant returning to Iran. While he may not have pursued his extortion while she was out of the country, the Authority did not consider whether Mr X might resume that behaviour if the first applicant returned to Iran. To that extent, the reasoning in this paragraph was not rational.
The Minister then noted paragraphs 32 to 34 of the Authority’s reasons for decision. In paragraphs 32 and 33, the Authority accepted that the first applicant had had a relationship with Mr Z and he knew of the circumstances of her relationship with Mr X and the video footage and so on. However, at paragraph 33, the Authority did not accept that Mr X had disclosed details of the first applicant’s past to her father. That was because:
… During the SHEV interview, she stated that her mother told her ‘a guy’ had been harassing them with phone calls. This in itself is not sufficient evidence that the calls took place, or that [Mr Z] was the caller. …
However, in the SHEV interview, the first applicant did not simply say that “a guy” had been harassing them with phone calls. The first applicant said at page 88 of her SHEV interview that:
(a)Mr Z had access to her family’s telephone number;
(b)Mr Z telephoned and told the father about the “things”; and
(c)the first applicant’s mother told the first applicant that “a guy” had been regularly contacting them and reporting about the “events” to her father.
The “things” and “events” were the first applicant’s sexual history. The “guy” was not anyone, but a person who knew about the first applicant’s sexual history, namely, Mr Z. With respect to the Authority, it is a misrepresentation of the first applicant’s evidence at the SHEV interview to reduce it to:
… her mother told her ‘a guy’ had been harassing them with phone calls …
It follows that the Authority’s reasoning on this issue is not rational. The evidence that the Authority found to be insufficient was not the totality of the evidence at the SHEV interview.
Moreover, there was more evidence than that one reference in the SHEV interview. In her statement in support of her SHEV application, the applicant said at paragraph 25:
… [Mr Z] told my father what happened to me in Iran. He also lied to my father that I was going out with many different men. Because he called my family so many different times my mother had to change her number.
The Authority did not grapple with this evidence, or add it to the evidence from the SHEV interview. For this reason also, the Authority’s conclusion that there was insufficient evidence was not rational.
In paragraph 34 of its reasons for decision, the Authority found that:
… the absence of any claims of threats in the SHEV interview of being killed by her father as a result of harassing phone calls, undermines this critical aspect of the applicant’s claims, and is not commensurate with the claimed fear of harm. …
However, this finding takes us back to the original point, that in the SHEV interview, the delegate asked:
We’ve spoken a lot about your family, et cetera. Is there anything you want to say – anything further you want to say about your claim that you fear harm from your father and that your father will kill you if you return to Iran? (emphasis added)
With this question, the first applicant was being asked if she wanted to say anything that she had not said before, in her SHEV interview or statement. The question did not call for her to repeat herself. The Authority did not recognise this, and thereby drew an irrational conclusion.
In summary, the two findings identified by the applicants, namely:
… The first applicant's personal circumstances have changed significantly since arriving in Australia and there is no evidence to indicate that her father's personal threats remain in place now that she is re-married and started a family of her own. Furthermore, when the delegate questioned the first applicant specifically in relation to her claim of being killed by her father, she only reiterated her fear of her father and did not refer to the adultery issue or any other circumstances relating specifically to her protection claims …
were irrational. The first because it was contrary to evidence, which the Authority apparently overlooked, and because it was based on an unfounded assumption. The second because it failed to recognise that the delegate had asked for further evidence.
The additional reasoning identified by the Minister does not salvage the situation. It is irrelevant that honour killings are rare among Persian Iranians. The lack of contact between the first applicant and her father, if anything, bolstered her case. In relation to Mr Z, the Authority misapprehended the evidence, so arrived at an irrational conclusion. The finding in paragraph 34 was irrational because the Authority failed to recognise that the delegate had asked for further evidence.
The reasoning about Mr X having not released the video in the past was rational, but the Authority failed to consider whether he might release it in the future, if the first applicant returned to Iran, which undermined the rationality of the conclusions overall regarding Mr X. Even if I am wrong about that, the other irrationalities in the Authority’s reasoning process meant that the Authority’s overall conclusions were unsound.
It follows that the Authority’s conclusion that the first applicant’s claims about her father were implausible and exaggerated were not rational. The Authority thereby fell into jurisdictional error. It was not suggested that the error was not material. It follows that the Authority’s decision must be set aside.
GROUNDS 2 AND 3
As ground 1 has been upheld, it is not strictly necessary to consider grounds 2 and 3.
CONCLUSION
As ground 1 has been upheld, the decision of the Authority will be set aside, and the matter will be remitted to the Authority for determination according to law. The first respondent will be required to pay the applicants’ costs.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Riley. Associate:
Dated: 21 July 2023
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