Gaj18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 246
•19 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
GAJ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 246
File number: MLG 3500 of 2018 Judgment of: JUDGE SYMONS Date of judgment: 19 March 2024 Catchwords: MIGRATION – protection visa – where applicant claims to fear harm due to conversion to Christianity – testing of applicant’s religious beliefs - whether the Immigration Assessment Authority erred by applying an arbitrary and unexplained standard of doctrinal knowledge in considering applicant’s commitment to Christianity – whether the Authority considered the particular circumstances of the applicant – whether the Authority erred in relying upon findings recorded by the delegate without interrogation of the source material – whether the Authority made findings without a probative basis – no jurisdictional error - application dismissed with costs Legislation: Migration Act 1958 (Cth), s 473CB(1)(a) Cases cited: ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34
CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76; [2019] HCA 50
DQN19 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1162
DVO16 v Minister for Immigration and Border Protection (2021) 273 CLR 177; [2021 HCA 12
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 274 CLR 398; [2021] HCA 41
Minister for Immigration and Citizenship v SZCOT (2010) 189 FCR 577; [2010] FCAFC 159
Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362; [2010] FCAFC 108
MZZJO v Minister for Immigration and Border Protection (2014) 239 FCR 436; [2014] FCAFC 80
MZZZW v Minister for Immigration and Border Protection (2015) 234 FCR 154; [2015] FCAFC 133
Division: Division 2 General Federal Law Number of paragraphs: 60 Date of last submissions: 18 October 2023 Date of hearing: 18 October 2023 Place: Melbourne Counsel for the Applicant: Mr Barron Solicitor for the Applicant: Lander & Rogers Counsel for the Respondents: Mr Barrington Solicitor for the Respondents:
Australian Government Solicitor
ORDERS
MLG 3500 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: GAJ18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE SYMONS
DATE OF ORDER:
19 MARCH 2024
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The amended application filed on 17 August 2023 be dismissed.
3.The applicant pay the first respondent’s costs fixed in the amount of $7,700.
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 amended application filed on 16 August 2023, the applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 29 October 2018, pursuant to s 476 of the Migration Act 1958 (Cth) (Act). The Authority affirmed a decision of a delegate of the first respondent (Minister) not to grant the applicant a Safe Haven Enterprise (subclass 790) visa (visa). The Minister opposes the application. The Authority enters a submitting appearance and has not participated in the proceeding.
BACKGROUND
The applicant is a citizen of Iran who arrived in Australia as an Unauthorised Maritime Arrival on 19 March 2013 (CB 16-35).
On 12 February 2016, the applicant was invited to apply for the visa after the bar imposed by s 46A(1) of the Act was lifted (CB 42-46).
On 19 June 2016, the applicant made an application for the visa (CB 56-95). The applicant identified his claims for protection in his answers to questions in part C of the application. The applicant claimed that if he was returned to Iran, he would “face arrest, torture, long imprisonment and even death in the hands of Iranian authorities on the basis of converting to Christianity” (CB 89). The applicant attached a Certificate of Baptism to his application (CB 100 -101).
On 23 August 2017, the applicant was invited to attend a SHEV interview with the delegate to occur on 13 September 2017. The applicant participated in the SHEV interview and provided further detail of his claims including that:
·He was first introduced to Christianity while still in Iran by a Christian woman, “N”, he met on the internet. She eventually invited him to attend Christian gatherings in a house, which in turn led him into contact with Iranian religious authorities. This contact prompted the applicant to leave Iran and enter Sweden on a tourist visa;
·While in Sweden, he attended a Christian church;
·Upon returning to Iran, he was questioned by authorities;
·While in Australia, he was baptised by a Christian church in Queensland on 25 October 2015 following his attendance at a course on Christian theology;
·He had previously attended a Christian church in Australia, but predominantly practised his faith by reading the Bible and speaking with fellow Christians.
On 1 March 2018, a delegate of the Minister made a decision to refuse the applicant the visa (CB 159-171).
The delegate was not satisfied that the applicant had genuinely converted to Christianity as claimed. This finding was based on the delegate’s view that the applicant “is not a regular church attender, has attempted to embellish his knowledge of the bible and has outright lied about using his Instagram account to proselytise” (CB 165). This last finding reflected the delegate’s observation that the applicant had “provided his Instagram account name and, upon reviewing this account the next day, it became apparent that the only posts that mentioned Christianity were placed on the account after the interview” (CB 165).
The delegate found that because he had not genuinely converted to Christianity, there was no reason to believe that the applicant would continue to practice the religion if he returned to Iran. There was also no evidence to suggest that the Iranian authorities would be aware of, or interested in, the applicant’s attendance at church outside of Iran. The delegate found that the applicant did not have a well-founded fear of persecution for this reason and neither did he satisfy the criteria for the engagement of Australia’s complementary protection obligations.
On 6 March 2018 the applicant’s matter was referred to the Authority for a review (CB 173-186).
On 27 March 2018, the applicant’s migration agent sent a written submission to the Authority (CB 197-201).
On 29 October 2018 the Authority made a decision to affirm the delegate’s decision to refuse the applicant the visa. The Authority prepared a written statement of Decision and Reasons (Reasons) (CB 209-228).
THE DECISION OF THE AUTHORITY
The Authority first identified the information that was before it. In this context, the Authority considered the written submission provided to it on 27 March 2018. The Authority was not satisfied that the submissions directed at the applicant’s Instagram account or information provided “to refute the delegate’s reservations about whether the applicant had read the book of Revelations in the bible” satisfied the criteria in s 473DD of the Act (Reasons, [5]-[6]).
Under the heading “Christian activities in Iran and after departure to Sweden”, the Authority recounted the evidence given by the applicant during his SHEV interview. The Authority was not satisfied, based on an evaluation of this evidence and the applicant’s responses to questions from the delegate, that the applicant had any genuine interest in Christianity whilst in Iran or that he had renounced Islam and did not accept that the applicant had converted to Christianity in Iran. The Authority was satisfied that the applicant was not a person of any adverse interest to the Iranian authorities when he departed Iran (Reasons, [11]-[20]).
Under the heading “Christian activities in Australia”, the Authority again made extensive reference to evidence and answers given by the applicant during the SHEV interview. The Authority recorded adverse findings concerning the genuineness of the applicant’s Christian activities undertaken in Australia. Of significance to the application for judicial review, the Authority recorded findings about the nature and extent of the applicant’s knowledge of and commitment to Christianity as demonstrated by his understanding of the Bible and the use by the applicant of his Instagram account.
The impugned passages of the Reasons appear at [22] and [26] as follows:
22.The applicant’s evidence about how he has practiced Christianity since coming to Australia indicates that he has had limited engagement with Christianity. He said that he had gone to a Protestant Church in Blackburn, having started attending there about two years ago but that he stopped last year because he had financial problems and that at the moment he does not have time as he is working seven days a week to pay of (sic) his debts. He maintained that in Christianity it was not compulsory to go to church, unlike in Islam, and that he practiced by reading the bible and hanging around Christian friends and people and speaking freely about Christianity. When asked about what parts of the bible he had read, he said that he had read the book of Revelations, indicating that it was the last book of the new testament and that it was the smallest book of the new testament. Although he replied in the negative to the question whether he had any difficulty in understanding the book of Revelations, his evidence about what it was about did not reflect that he had a real understanding of anything that he had read. He said it was about “Lifestyle, the way of life…and talks about lessons of being humble and also about the death of Jesus”. When prompted as to what was distinctive about that particular book and what happens in that book, the applicant responded generally, stating “Relationship with God” and “Rise of Jesus” without being able to provide any further information. The delegate put to the applicant that the book was about the end of the world, and that he had difficulty accepting that he had actually read the book of Revelations. Although the applicant had said that he had also read the four gospels in the bible when he was a bible from his friend N in Iran, and that he had read about the ‘new life’, which was after the life of Jesus, the very general nature of the information he had given about what he had read in the bible does not convince me that he has genuinely practiced Christianity or that he has committed to it as his chosen religion. Whilst I am mindful that there is no minimum knowledge requirement to establish that a person is a genuine Christian, and that a person may know very little about the bible and Christian faith and practice yet still be a genuine Christian, in this case the applicant has maintained that he practised his faith by reading the bible and that it was not compulsory to attend church in the Christian faith, having ceased attending church after about a year of having commenced his attendances. In that context, I consider that his evidence about his reading of the bible reflects a very general and superficial understanding and does not satisfy me that he has genuinely practised the Christian religion.
…
26.…I have serious reservations about the applicant’s references to social media, including Facebook, to spread the news about his Christianity or to proselytize as suggested by the applicant in his PV interview. He was asked about his Instagram account name and provided details of that account name to the delegate, which I note is the name that he has changed to in Australia. The delegate indicated that he would look at those images on the applicant’s Instagram account, and I note that from the delegate’s decision, having reviewed that account it was apparent to him that the only posts that mentioned Christianity were placed on that account after the interview. Although there is nothing before me to indicate that the dates upon which the applicant made these posts, I have no reason to doubt the delegate’s finding that the applicant’s Instagram posts were made after the interview. I consider that this evidence of posting Christian material on the applicant’s Instagram account after the PV interview adversely affects the credibility of the applicant’s claims. In those circumstances, and also noting that the applicant’s account is in the name that he has changed to whilst in Australia, I am not satisfied that the applicant has made any posts on his Instagram account otherwise than for the purpose of strengthening his claims for protection.
The Authority, after considering evidence directed at the situation facing the applicant’s brothers who, it was claimed, had also converted to Christianity, noted that it had reservations about the applicant’s lack of knowledge of what happened to his brothers in Iran, and in particular about their Christian conversion activities and issues in Iran. The Authority found that regardless, it had “other considerable concerns” with the other evidence given by the applicant in support of his claims (Reasons, [29]).
In summary, under the heading “Refugee criteria assessment – s 36(2)(a) of the Act”, the Authority confirmed that it was not satisfied that the applicant had engaged in Christianity, including baptism, attending church and posting Christian messages on his Instagram account other than for the purpose of strengthening his claims to be a refugee. The Authority recorded that it had not considered this conduct in assessing whether the applicant had a well-founded fear of persecution in Iran. The Authority reiterated that it had not accepted the applicant’s claims of conversion activities in Iran prior to his arrival in Australia and found that it was not satisfied on the evidence that he would engage in or have any interest in Christianity or Christian activities on return to Iran. The Authority was also not satisfied on the evidence that the applicant had renounced Islam. It recorded its lack of satisfaction that the applicant faced a real chance of any harm in Iran on the basis of religion (Reasons, [32]).
The Authority was also not satisfied, based predominantly on country information and its finding that the applicant did not have a risk profile with authorities, including as a political activist, that the applicant faced a real chance of harm on the basis of being a failed asylum seeker returning from a western country without a passport (Reasons, ([33]-[37]).
The Authority found that the applicant did not meet the requirements of the definition of refugee in s 5H(1) and did not therefore meet s 36(2)(a) of the Act.
The Authority separately considered whether the applicant satisfied the complementary protection criteria. The Authority, including by reference to its earlier factual findings, was not satisfied that there was a real chance that the applicant would face significant harm either as an apostate or a perceived Christian or as a failed asylum seeker from a Western country without a passport (Reasons, [46]).
PROCEEDINGS IN THIS COURT
On 17 August 2023 and 9 October 2023, the applicant filed an amended application and written submissions, respectively. The Minister filed written submissions on 13 October 2023.
The amended application identifies the following three grounds of review:[1]
[1] A fourth ground was not pressed.
1.The Immigration Assessment Authority (the Authority)’s conclusion that the Applicant did not genuinely practice Christianity was irrational.
PARTICULARS
The Authority concluded that the Applicant did not genuinely practice the Christian religion (Reasons [22])
a)The Authority came to this conclusion due to a finding that the Applicant’s understanding of the Bible and the Book of Revelations was very general and superficial (Reasons [22]).
b)The Authority made this assessment without any independent material about Christianity or the Book of Revelations, by which the Applicant’s knowledge of Christianity could be assessed.
c)The Authority also came to this conclusion without identifying any particular elements that an adherent to the religion in the Applicant’s position might be reasonably expected to know.
d)The Authority thereby came to its conclusion without a rational basis.
2.The Authority failed to complete its task of conducting a review under s 473CC of the Migration Act by failing to consider the issue of the date of the Applicant’s Instagram posts for itself and simply relying upon the findings of the Delegate.
PARTICULARS
a)The Applicant relied upon evidence that he had posted material on Instagram about Christianity in support of his protection application.
b)The Authority assumed the Delegate’s observations about the Instagram posts and their dates were accurate, but did not check them itself (Reasons [26]).
c)The Authority impugned the Applicant’s credibility on the basis of findings that it had not made or clarified, and on the basis of evidence that was not before the Authority (Reasons, [26]).
d)The Authority did not complete its task in conducting a review without considering the evidence itself.
3.Alternatively to Ground 2, the Authority’s finding that the Instagram posts post-dated the interview was unreasonable or irrational as it was not based on evidence that was before the Authority.
PARTICULARS
a)The Applicant relied upon evidence that he had posted material on Instagram about Christianity in support of his claim.
b)The Delegate concluded that the Instagram posts were only made following the Applicant’s interview with the Delegate.
c)The Authority assumed the Delegate’s observations about the Instagram posts and their dates were accurate, but the Authority did not check this for itself.
d)The Authority thereby concluded that the Instagram posts post-dated the interview without any evidence before the Authority.
GROUND ONE
Submissions of the applicant
The applicant challenges the approach adopted by the Authority to its evaluation of the applicant’s knowledge of the Bible, which evaluation the applicant contends was central to the Authority’s finding that he was not a genuine adherent of Christianity.
This argument focuses in particular on [22] of the Reasons (reproduced at [15] above) which, the applicant submits, reveals that the Authority assessed his religiosity by reference to arbitrary standards of religious knowledge and without a proper basis for concluding that his doctrinal or theological knowledge of Christianity was insufficient.
The applicant notes that in a number of respects, the Authority recorded findings that suggested he had a knowledge and/or understanding of aspects of Christianity; for example, the applicant could articulate the difference between the Old and New Testaments of the Bible, he indicated that he had read parts of the Gospels of Matthew, Mark, Luke and John, and that he had read the Book of Revelation, which he (correctly) described as “quite short”. The applicant was also aware that, in the Christian religion, it was believed that Jesus Christ had been crucified for the sins of humanity.
However, against this, the Authority concluded that the applicant’s actual level of understanding of Christian dogma and biblical text was “very general and superficial” and reflective of “at most a superficial understanding of and commitment to” Christianity. This finding appeared particularly responsive to the perceived lack of specificity in the applicant’s recollection of the Book of Revelation and his focus on matters including the resurrection of Christ and the “Rise of Jesus”, rather than what the applicant (in his written submissions) described as the “eschatological elements”.
The applicant submits that in circumstances where the Authority essentially adopted and paraphrased the delegate’s assessment of the Book of Revelation that it was “heavy on iconography” and “relates to the possible end of the world” (Reasons, [22]), it was incumbent on the Authority to identify a basis for its assertions about the character of the Book of Revelation and how the applicant’s appraisal of its content fell short. The applicant submits that the Court can take judicial notice that the Book of Revelation is a difficult text whose interpretation is contested within academic circles. There was a more pressing need, because of these characteristics, for the Authority to set out with some specificity, the meaning and function of the Book.
The applicant submits it to be of some significance that although both the delegate and then the Authority asserted an understanding of its contents, both repeatedly mis-stated its title, referring to it, incorrectly, as the “Book of Revelations” (plural).
The applicant submits that the approach adopted by the Authority was to reject his claim to be an adherent to Christianity because he was unable to recall scripture to the satisfaction of his assessors. The applicant submits that this approach runs counter to authority (referring to DQN19 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1162 at [58]). Instead, according to the applicant, the Authority was required to take a more nuanced approach to fact-finding in this space.
Submissions of the Minister
The Minister acknowledges, by reference to the Full Court decision in MZZJO v Minister for Immigration and Border Protection (2014) 239 FCR 436 at [47] that the testing of a person’s claimed religious belief involves “questioning of that particular individual’s belief rather than the application of some standardised or assumed level of knowledge”.
The Minister submits however that the Authority was aware of this principle because it noted (at Reasons, [22]) that it was “mindful that there is no minimum knowledge requirement to establish that a person is a genuine Christian, and that a person may know very little about the bible and Christian faith and practice yet still be a genuine Christian”.
The Minister submits that the approach to the testing of the applicant’s faith adopted by the Authority was simply responsive to the evidence and answers given by the applicant which was that he had not been attending Church because of financial problems and that he practiced his religion by reading the Bible.
The Minister submits that it was hardly irrational for the Authority to focus on the applicant’s understanding of the Book of Revelation when he had nominated this book as the part of the Bible that he had read.
The Minister submits that this case can be distinguished from the case considered in Minister for Immigration and Citizenship v SZCOT (2010) 189 FCR 577 where the Tribunal asked the visa applicant “a series of highly specific and closed questions about his knowledge, by rote, of passages from the Bible” which “went so far as to ask him to give the reference to the exact chapter and verse in the particular Book to which reference was made”.[2] The Minister invites the Court to infer that the questioning that occurred at the SHEV interview involved the delegate asking the applicant open-ended questions (CB 165). The Authority did not reject the answers given as incorrect but rather characterised them as general and vague.
[2] SZCOT at [11].
Neither, according to the Minister is this a case where the Authority’s finding that the applicant’s evidence was vague was made without a probative basis. The Minister submits that the Authority can be taken to have personal or specialised knowledge in matters of Christianity given that it is a specialist decision-maker which commonly hears claims surrounding Christianity. The Minister maintains that it was not required, in these circumstances, to disclose the source of that knowledge in its Reasons (referring to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 274 CLR 398 at [18]).
CONSIDERATION OF GROUND ONE
Both parties referred in their submissions to Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362. At [37]-[39], Kenny J observed as follows, having earlier referred to what her Honour described as “relevant authorities: ‘arbitrary standard’”:
These authorities indicate that the question whether applying an “arbitrary standard” of knowledge of religious doctrine constitutes jurisdictional error is a complex one. I accept that a Tribunal which relies on the premise that “every believer or follower of [a religion] must have certain knowledge or provide certain answers concerning aspects of that religion” may well fail to engage with the question whether the particular applicant before it is in fact a follower of the religion, and so fall into jurisdictional error. There is, however, a difference between: (a) operating from the premise that all believers will have certain specific knowledge; and (b) concluding, after exploring the matter and without any preconception as to what knowledge all believers will demonstrate, that a particular applicant’s lack of knowledge indicates that he is not a genuine adherent of a religion. Further, it must be remembered that the Tribunal’s written reasons typically represent a Tribunal’s concluded view after considering all the evidence. If a Tribunal ultimately finds that an applicant’s lack of particular knowledge is a reason to reject his claim, this finding does not necessarily mean that the Tribunal approached the matter from the outset on the a priori basis that the applicant was required to demonstrate that knowledge.
Absent an explicit statement in the Tribunal’s reasons that an applicant must meet a particular standard of knowledge to establish that he is a follower of his claimed religion, it may not always be possible to distinguish a potentially illegitimate a priori approach from a legitimate exploration of an applicant’s knowledge. As the analysis in WALT and SBCC demonstrates, the Tribunal’s reliance on other factors besides its evaluation of an applicant’s knowledge will typically be a strong indicator that the Tribunal has conducted a legitimate exploration rather than made a determination by reference to a preconceived minimum standard of knowledge. Even where the Tribunal relies primarily on its evaluation of the applicant’s answers, however, it will not necessarily run into jurisdictional error. As the authorities emphasize, there is nothing objectionable in the Tribunal questioning an applicant about his or her beliefs. When the Tribunal does so, it is not prohibited from evaluating the applicant’s answers against probative material evincing the doctrines of the religion in question, and the weight to be given to that evaluation will generally be a matter for the Tribunal.
If the Tribunal is to avoid jurisdictional error, however, certain qualifications must be added to the preceding statements. Where the Tribunal rejects an applicant’s claim based on perceived deficiencies in the applicant’s knowledge of religious doctrine, there must be a basis for concluding that the particular elements of doctrine in question are elements that an adherent to the religion in the applicant’s position might be reasonably expected to know. If this condition is satisfied, and the applicant is wholly ignorant of the relevant doctrinal elements, it will be a short step to infer that the applicant is not a follower of the religion as he or she claims. Where the Tribunal’s material and the applicant’s answers differ in matters of expression, emphasis or detail, however, the issue becomes more complex. In these circumstances, the perceived variations between the Tribunal’s material and the applicant’s answers must be such that there is a logical connection between those variations and the conclusion that the applicant is not an adherent of the religion. Depending on the facts of a particular case, trivial variations in detail or superficial differences in expression may not rationally justify the conclusion that an applicant’s knowledge is less than would be expected of a genuine adherent. Under such circumstances, jurisdictional error is a possibility.
On balance, I am not persuaded that the approach adopted by the Authority to the testing of the applicant’s Christianity involved an incursion into the territory of operating from the premise that all believers will have certain specific knowledge about aspects of their professed faith.
Instead, the Reasons as a whole – this includes not only what is recorded at [22] but also the observations that appear at [6] about the “limited and very general information given by the applicant about his reading of the book of Revelations” – disclose that the Authority tested the applicant’s adherence to Christianity within a framework that reflected his answers and evidence given to the delegate and which was later part of the “review material” before the Authority.
I consider that in circumstances where the applicant had indicated that his practice of Christianity was centred on his reading of the Bible, and particularly the Book of Revelation, the Authority was entitled to evaluate the applicant’s practice through an exploration of his understanding of this text. It is clear in this respect that the Authority did not simply adopt the delegate’s appraisal of the applicant’s answers (for example, the Authority referred at [22] to parts of the applicant’s responses that were not mentioned in the decision of the delegate) but applied its own lens to the evaluation process.
I accept the submission made by the Minister that the Authority did not discredit the applicant’s religious knowledge based on a view taken that his answers were incorrect. Instead, the Authority arrived at the view that the applicant’s account of the Book of Revelation was generally expressed, lacking in detail and did not reflect an engagement or familiarity with the subject matter. The Authority was also concerned about the generally expressed responses given by the applicant about “the four gospels” as well as his “limited engagement” with Christianity since coming to Australia, this being a response to the applicant’s evidence about his attendance at church in Australia. The Authority’s reasons operated on the particular ways in which the applicant purported to practice his religion.
Ground one is dismissed.
GROUND TWO
Applicant’s submissions
The applicant submits that as part of its obligation to review the decision of the delegate the Authority was required to examine for itself the same information that was before the delegate and to independently satisfy itself as to whether the criteria for the grant of the visa have been met.
The applicant submits that the Authority did not complete its task of review because it accepted uncritically the finding of the delegate that the posts made by the applicant to his Instagram account concerning Christianity had been made after he had been interviewed in relation to his visa application.
The applicant submits that for the Authority to lawfully conclude that the delegate’s findings about his Instagram usage were valid, it would have needed to consider the evidence upon which the delegate made those findings. However, as the Authority disclosed in its Reasons, it had “nothing” before it as to the dates that the posts were made. It was impossible in those circumstances for the Authority to undertake a fresh evaluation of the delegate’s findings. This failure was material to the applicant’s position as the opinion of the delegate (adopted by the Authority) was used as a key component of the conclusion that the applicant was not credible.
Minister’s submissions
The Minister submits that the premise of the applicant’s argument – namely, that the Authority cannot rely upon a factual finding made by the delegate – is inconsistent with the explanation given by the Full Court in MZZZW v Minister for Immigration and Border Protection (2015) 234 FCR 154 about the decision-maker’s obligation to consider matters “afresh”. At [60], the Full Court explained:
…does not mean the merits review decision-maker considers matters uninstructed by what has gone before, whether at first instance or in other review applications which have not finally determined the merits review process. In our opinion “afresh” is simply a shorthand way of saying “with fresh eyes” and is intended to encapsulate the essence of merits review, and indeed its strength in any robust process of administrative decision-making; namely, that within the limits of the applicable law, a new decision-maker brings her or his own perspectives, approach and reasoning to the claims made by an applicant for review.
The Minister also seeks to rely on observations made by the High Court in ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439 at [23] that “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”.
The Minister submits that it is clear, having regard to these authorities, that a second-stage decision-maker can consider findings made by a first-stage reviewer. The reasoning of Edelman J in DVO16 v Minister for Immigration and Border Protection (2021) 273 CLR 177 at [69] suggests that the Authority must take the delegate’s reasons into account in its consideration.
The Minister submits that it was open in this case to the Authority to take into account the delegate’s description of the Instagram post. The delegate described the time at which he viewed the posts, and there was no reason to consider that the delegate had lied about what he had seen. The Minister submits that this is particularly so, having regard to the way in which the review unfolded; after the delegate had observed that the applicant’s Instagram posts post-dated the SHEV interview (CB 165), the applicant provided a submission in which he sought to explain why the Instagram posts were recent (CB 199-200). At no point did the applicant even intimate that the delegate had got the finding wrong.
CONSIDERATION OF GROUND TWO
I am not persuaded that there has been an abdication by the Authority of its review function. The Authority was required, in the conduct of the review, to “consider” the review material provided to it by the Secretary, in the sense that it was required “to examine the review material…to form and act on its own assessment of the relevance of that material to the review of the referred decision” (CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76 at [7]).
The written statement of reasons produced by the delegate forms part of the “review material” (s 473CB(1)(a)). Evidently, the Authority considered the decision of the delegate and determined that it was relevant in a number of respects, including insofar as it recorded findings about the applicant’s use of his Instagram account.
While the Authority acknowledged that it did not have before it the underlying material by reference to which the delegate’s findings were made, it was entitled in my view to proceed on the basis that the delegate’s findings accurately reflected the information it had gleaned from the applicant’s Instagram account (which was objective in nature) and had been made in good faith. The Authority was satisfied that there was no reason to doubt the delegate’s finding about the timing of the applicant’s Instagram posts and this statement has not been challenged by the applicant in this proceeding. It is consistent with the submission made by the applicant to the Authority which did not take issue with the finding of the delegate about the timing of the Instagram posts but instead sought to explain why a different account had not been identified by the applicant at the SHEV interview (CB 199).
Relatedly, where the applicant has not suggested in this proceeding that had the Authority interrogated the source material itself, it would have disclosed a different sequence of events, it is difficult to see how the correction of the error attributed to the Authority could have realistically resulted in a different decision, with the result that any error would not have been material or jurisdictional.
Ground two is dismissed.
GROUND THREE
Applicant’s submissions
The applicant submits in the alternative to ground two, that the Authority’s findings as to the dates of his Instagram posts were irrational, in the sense that they were not founded on probative material that was before the Authority.
The applicant submits that this conclusion is inevitable having regard to the acknowledgement in the Reasons at [26] that the Authority had no evidence as to the dates of the applicant’s Instagram posts concerning Christianity. The Authority’s conclusion that the posts were made after the applicant’s SHEV interview, was based solely on the findings of the delegate. Those findings were, in turn, based on material which the Authority had not identified nor engaged with.
Minister’s submissions
The Minister submits that contrary to the submission made by the applicant, the Authority was able to establish the source from which the delegate’s conclusion was formed, this being the applicant’s Instagram account which the delegate said it had reviewed itself (CB 165).
The Minister submits that the Authority’s statement that there was nothing before it to indicate the dates that the applicant made the posts, read in context, must mean the precise dates upon which the applicant made the posts. The applicant provided the delegate his Instagram details at the interview, and the delegate said it went to the page the next day. The delegate said the posts had been made after the interview. Logically, the Instagram posts could only have been made on the day of the interview or the following day (or on both).
CONSIDERATION OF GROUND THREE
Implicit in my finding on ground two that the Authority was entitled to take account of and rely upon the findings made by the delegate about the timing of the applicant’s Instagram posts is an acknowledgment that those findings were probative of the issue. While the Authority did not have direct evidence of the Instagram posts, it had evidence as to the process adopted by the delegate in reviewing those posts and, as noted in relation to ground two, no information to contradict or undermine the delegate’s conclusion in relation to the timing of those posts.
Ground three is dismissed.
DISPOSITION
In circumstances where the applicant has been unsuccessful in his application for judicial review, it must follow that the application (as amended) be dismissed, with an order that the applicant pay the Minister’s costs in a fixed amount reflecting the Court Scale.
I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons. Associate:
Dated: 19 March 2024
0