GFD18 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 527
•15 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
GFD18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 527
File number: MLG 3690 of 2018 Judgment of: JUDGE SYMONS Date of judgment: 15 April 2025 Catchwords: MIGRATION – protection visa – judicial review of a decision of the Immigration Assessment Authority – where second applicant feared harm based on his failure to complete military service in Iran – whether Authority considered claim based on a correct and complete understanding of country information – where second applicant feared harm based on his interest in Freemasons in Australia – where second applicant identified limits in his ability to produce evidence directed at this claim due to the secrecy of the organisation – whether Authority assessed claim based on correct appreciation of the limits that attached to production of material – no jurisdictional error – application dismissed with costs Legislation: Migration Act 1958 (Cth), ss 46A, 473DD Cases cited: AXE17 v Minister for Immigration and Border Protection [2019] FCA 695
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152; [2024] HCA 12
Division: Division 2 General Federal Law Number of paragraphs: 57 Date of last submissions: 1 April 2025 Date of hearing: 1 April 2025 Place: Melbourne Counsel for the Applicants: Mr D McDonald-Norman Solicitor for the Applicants: Victoria Legal Aid Counsel for the First Respondent: Ms K McInnes Solicitor for the First Respondent: Australian Government Solicitor Solicitor for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs ORDERS
MLG 3690 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: GFD18
First Applicant
GFE18
Second Applicant
GFF18 (and another named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE SYMONS
DATE OF ORDER:
15 APRIL 2025
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to “Minister for Immigration and Multicultural Affairs”.
2.The application for judicial review filed on 29 November 2018 and amended on 3 March 2025 be dismissed.
3.The first, second and fourth applicants 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 29 November 2018 and amended on 3 March 2025, the applicants seek judicial review of a decision of the second respondent (Authority) to affirm a decision of a delegate of the first respondent (Minister) not to grant the applicants a Safe Haven Enterprise (subclass 790) visa (visa). The Minister opposes the application. The Authority filed a submitting appearance and did not participate in the proceeding.
BACKGROUND
The applicants are members of the same family unit and citizens of Iran. They arrived in Australia as unauthorised maritime arrivals on 20 December 2012.
On 18 July 2016, the (then) Department of Immigration and Border Protection (Department) notified GDF18 (first applicant) that the Minister had exercised the power under s 46A(2) of the Migration Act 1958 (Cth) (Act) and invited her to apply for the visa or a Temporary Protection (subclass 785) visa (TPV) (Court Book (CB) 47-55).
On 6 June 2017, with the assistance of a registered migration agent (first migration agent) the first applicant applied for the visa and included three of her children in the application as members of her family unit. The application was accompanied by material including a statement of claim of the first applicant dated 6 June 2017 (CB 56- 222).
On 14 June 2017, the Department acknowledged the valid application for the visa CB 223-234).
On 12 February 2018, the first applicant was invited to attend an interview on 26 February 2018, which she did (CB 236-238).
On 28 March 2018, in response to a natural justice letter sent by the Department, the first migration agent provided a supplementary statutory declaration of the first applicant dated 27 March 2018 and a statutory declaration of the second applicant dated 28 March 2018 (CB 260-264 and 265-269). In the second applicant’s statutory declaration, he provided an explanation as to why he had not originally raised his own claims for protection and then went on to provide information about his registration in Australia as a member of the Freemasons. The second applicant also recorded his “fear that because I did not complete military service before I left Iran I will be detained on re-entry. I fear that when they interrogate me about why I left for Australia that they will hack into my personal information and find my correspondence with the Freemasons. I fear that if the Iranian authorities find out that I have become a member of the Freemasons that I will be imprisoned” (CB 269).
In her supplementary statutory declaration, the first applicant also repeated her son’s claim that he would be imprisoned, or executed, on return for failing to complete his compulsory military service (CB 263).
On 14 June 2018, a delegate of the Minister made a decision to refuse the applicants the visa. (CB 284-301). As far as the military service claim was concerned, the delegate accepted that the second applicant was yet to complete his compulsory military service as he had left Iran prior to the age of 18 and had been out of the country since turning 18. The delegate did not accept that the second applicant would be imputed with an anti-government profile on account of not performing military service or that he would suffer relevant harm as a result, including based on the age of the second applicant when he had left Iran and the fact he had been out of the country since turning 18 (CB 291 and 296).
On 19 June 2018, the decision of the delegate was referred to the Authority for a review (CB 304-305).
On 16 July 2018, the applicants newly appointed migration agent, Majd Visa (second migration agent), informed the Authority they would be representing the applicants, and requested an extension of seven days to provide submissions and supporting evidence (CB 329).
On 17 July 2018, the Authority responded to the second migration agent noting that any new information must be given within 21 days of the date on which the case was referred by the Department, this being 10 July 2018. The Authority informed the second migration agent that it was not required to accept any submission received after this date, that it could only consider new information if it met the requirements of s 473DD of the Act, and that no decision would be made on the review before 20 July 2018 (CB 338).
On 24 August 2018, the second migration agent provided the Authority with a redacted document relating to a Minerval Ceremony for the second respondent, a redacted email to the second respondent regarding the Freemasonry dated 1 January 2016, a redacted invitation to attend an open day on 21 January 2017, an Illuminati email addressed to the second applicant dated 2 January 2017 (CB 341-345), a statutory declaration of the second applicant dated 24 August 2018 (CB 346-347), and a statutory declaration of the first applicant dated 24 August 2018 (CB 348-352).
On 1 November 2018, the Authority affirmed the decision of the delegate not to grant the applicants the visa (CB 365-374) and produced a written statement of decisions and reasons (R) (CB 375-395).
DECISION OF THE AUTHORITY
Insofar as is relevant to the grounds of review upon which the applicants rely, the Authority recorded the following findings.
The Authority noted that the second applicant had provided the Authority with a statutory declaration and documents relating to his membership with the Freemasons and involvement with Illuminati.
At R [13] the Authority reasoned with respect to this information:
…Applicant 2 produced a statutory declaration dated 28 March 2018, within which he disclosed that he has registered with Freemasons and met with one of the masters. He states that although he was asked for his reasons as to why he is in Australia and why he wants to join the Freemasons, he was not able to disclose that information to the delegate. In his statutory declaration to the IAA, Applicant 2 in providing further documents and further information about his membership of Freemasons, states that he was not able to provide the information earlier because he was not allowed to do so by his master and that he has recently sought permission to provide the information that he is providing to the IAA. In examining the further documents submitted to IAA, I note that although Applicant 2 was invited to attend a “Minerval Ceremony”, details of where and when it was held, the name of the writer and the date of letter and other information are all redacted. This supports Applicant 2’s assertion about the secret nature of the organisation and that members or people expressing interest in membership are not to disclose details about the meetings or membership of Freemasons. I accept that Applicant 2 was not able to provide the delegate further information prior to the decision, and that following the delegate’s decision, he sought permission to provide further information to the IAA in support of his claimed interest and involvement in Freemasons. Given that the documents submitted corroborate Applicant 2’s interest in membership in Freemasons, his inability to provide such information earlier, and the nature of the information which relates to his claimed fear of harm on return to Iran, I am satisfied that there are exceptional circumstances to justify considering the new information in his statutory declaration and further documents provided to the IAA. I am satisfied of the requirements of both s. 473DD(a) and (b)(i) of the Act.
At R [20], the Authority summarised the claims of the second applicant as follows:
•During 2016, while still in High school in Australia, he expressed interest in becoming a member of the Freemasons. He attended meetings and was told to keep his registration with the Freemasons quiet. The Freemasons are waiting for the grant of his visa before finalising his membership. Iranians believe Freemasons are Satanists and his membership and involvement with the Freemasons will be seen as against Islam and Iranian authorities and he will be imprisoned. He will not be able to participate in regular Freemason meetings or activities in Iran.
•He did not complete military service before leaving Iran and as a result will be detained on re-entry.
The Authority, after considering the claims that related directly to the first applicant, turned its attention to the claims of the second applicant. Given the centrality of these claims and their disposition to the grounds of judicial review, I have chosen to reproduce them in their entirety. They appear at R [44]-[47]:
44. Applicant 2 claims that he did not complete military service before he left Iran and will be detained on re-entry. Given Applicant 2’s age at the time of his departure from Iran, I accept that he did not complete military service prior to leaving Iran. The 2016 UK Home Office report provides that military service is compulsory for all Iranian males between the age of 18 and 40. Men, upon reaching the age of 18, are called up as part of their military service duties and are to report to military authorities within a timeframe and those who fail to report are considered as draft evaders. Draft evaders are liable for prosecution. Applicant 2 has not put forward any information suggesting that he was called up for military service and given he left Iran on his own passport and his absence from the country since, I am not satisfied that he has been called up to report for military service. Further, given that Applicant 2 was only 15 years of age when departed Iran with other members of his family, I am not satisfied that there is a real chance he would be viewed as someone leaving Iran in order to evade military service or be viewed as a draft evader on return. However, on the information before me, I consider that upon return to Iran, he will be required to complete his compulsory military service. He has not claimed that he will object to undertaking his military service for any reason on return to Iran. In light of the country information before me, the requirement for Applicant 2 to participate in military service in Iran is purely a requirement arising under Iranian law that is placed on all male Iranians between the ages of 18 and 40. Applicant 2 has not claimed and there is no evidence before me to suggest that the law will be applied to him in a discriminatory or disproportionate manner or that it otherwise amounts to persecution under s. 5J of the Act. I am not satisfied there is a real chance of the applicant being persecuted in this regard.
45. Applicant 2 also claims that in 2016, he started reading about Freemasons and registered with the organisation online. He has provided a copy of an email which appears to be a response from the organisation acknowledging his initial contact with Freemasons on 1 January 2016. He states that in 2016/2017 he emailed Freemasons and indicated his interest to become a member, and that one of the masters emailed him back and organised a meeting at the lodge. Applicant 2 has provided the IAA with a redacted email which relates to a meeting on 21 January 2017. There is also an email from Illuminati to Applicant 2 on 2 January 2017 thanking Applicant 2 for his interest in Illuminati and asking him to confirm his information, and a heavily redacted letter addressed to Applicant 2 relating to his Minerval Ceremony scheduled. Information, such as the date of the letter, the sender, the venue and date of the ceremony and all other information within the letter are redacted. In addition to submission of these documents, Applicant 2 claims that he has gone to the lodge for meetings three times and that given the secrecy involved with Freemasons, he was told to keep his registration with them quiet and that Freemasons are waiting for him to be granted a visa before they finalise his membership.
46. Having considered Applicant 2’s submissions that he is not able to disclose information, apart from what he has already disclosed with permission from his master, I am willing to accept that in 2016, Applicant 2 “was googling different things online”. I accept that he made contact with the organisation in January 2016. However, the information provided suggests that the next time Applicant 2 made contact with Freemasons, possibly requesting a meeting, was a year later in January 2017. Although I note that Applicant 2 was invited to attend a ceremony on an unidentified date, he has given no information as to when the ceremony was held, what the ceremony was about, and whether or not he attended. There is no further supporting evidence as to the frequency of his meeting attendance and involvement with the Freemasons, apart from the heavily redacted letter in relation to a ceremony. On the information before me, I am willing to accept that Applicant 2 has attended three meetings in the period from his initial contact in January 2016, and that he has had some limited contact with the members of the group but has kept his involvement with the group secret from everyone, including his mother and other family members.
47. On the information before me, I do not accept Applicant 2’s evidence that he is in regular contact with Freemasons and participates in regular meetings. As noted above, Applicant 2 has obtained permission to disclose some information, provided he is not disclosing other member’s identities, location and other details, yet has not provided any evidence that he attends regular meetings or is in regular contact with Freemasons. To the contrary, it appears that while he made initial contact in January 2016, it was a year later in January 2017 that he had a meeting with who he claims to be a master. On the information before me, I am not satisfied that Applicant 2 is in regular contact with Freemasons, attends regular meetings or that his membership within the organisation is confirmed. On that basis, I am also not satisfied that Applicant 2 has a genuine interest in Freemasons such that he would seek to continue with any involvement with such organisations or groups in Iran. There is no credible evidence before me to support Applicant 2’s assertion that the authorities in Iran are aware of his contact or claimed membership with the Freemasons in Australia, particularly as on his own evidence he has not communicated his involvement or interest in Freemasons to anyone, and given Applicant 2’s lack of any profile with the authorities at the time of departure at the age of 15, I find his assertion that the authorities would hack into his personal information and find his correspondence with the Freemasons on return to Iran speculative and far-fetched. Accordingly, I find the chance of Applicant 2 facing harm in Iran for reasons of his limited communication with the Freemasons in Australia to be remote.
In the context of considering the risk to the applicants of returning with the status of failed asylum seekers, the Authority found that in light of its finding about the second applicant’s limited involvement and interactions with the Freemasons and his non-completion of his compulsory military service, it was not satisfied that the applicants would be at risk of any adverse attention from the authorities upon return to Iran. The Authority explained that (R [51]):
…There is no credible evidence before me to support that Applicant 2’s non-completion of military service while he was underage in Iran and him having sought asylum in Australia would increase his chances of facing any harm, including execution on return to Iran. While he may be called up to report to the authorities and commence compulsory military service, which I have dealt with above, there is no information before me to suggest that he will be the subject of any harm for these reasons and I am not satisfied there is a real chance of this occurring.
In the context of assessing the applicants’ claims against the complementary protection criterion, the Authority recorded the following at R, [57]:
Although I consider there is a real chance that Applicant 2 will be called up to report to the authorities for purposes of compulsory military service, which is an obligation on all men between the ages of 18 and 40 in Iran, I am not satisfied that there is a real risk that he will be viewed and punished as an evader. He has not claimed, and I am not satisfied, that there is a real risk that in being required to perform military service he will be subjected to torture, cruel or inhuman or degrading treatment or punishment, or any other treatment amounting to significant harm.
The Authority was not satisfied that any of the applicants met the definition of refugee or satisfied the complementary protection criterion.
JUDICIAL REVIEW
The hearing of the application for judicial review took place on 1 April 2025 on which occasion the applicants were represented by Mr McDonald-Norman of counsel and the Minister by Ms McInnes of counsel.
The applicants relied upon their amended application filed on 3 March 2025 which contains two pleaded grounds of review, written submissions filed on 3 March 2025, and an affidavit of lawyer Cait Gibbs affirmed and filed on the same date, which annexed a copy of the UK Home Office Country Policy and Information Note – Iran: Military service Version 1.0 dated 25 October 2016 (Home Office report). The parties agreed that it was this version of the Home Office report to which reference was made by the Authority at R, [44].
The Minister relied on his written submissions filed on 18 March 2025. No objection was taken to the affidavit of Ms Gibbs.
Ground one
This ground reads:
1. The Second Respondent (Authority) fell into jurisdictional error because it erred in its consideration or understanding of the material before it, or engaged in illogical or irrational reasoning.
Particulars
a.In finding that it was not satisfied that there was a real chance that the Second Applicant would be viewed as someone leaving Iran in order to evade military service, or that he would be viewed as a draft evader on return, the Authority materially relied on its finding that ‘[the Second Applicant] has not put forward any information suggesting that he was called up for military service and given he left Iran on his own passport and his absence from the country since, I am not satisfied that he has been called up to report for military service’: CB 387 [44].
b.The country information on which the Authority relied as to military service requirements in Iran (at CB 387 [44]) did not indicate that there was a procedure by which individuals are specifically and personally called up for military service in Iran. The country information instead indicated that ‘[t]hey must report to the military authorities within one month after the start of the Iranian calendar year in which they turn 18’, and that announcements calling upon men born in a given year are made via the media: UK Home Office, Country Policy and Information Note – Iran: Military service (25 October 2016) (UK Home Office Report) [4.5.1].
c.The Authority found that ‘given that [the Second Applicant] was only 15 years of age when [he] departed Iran with other members of his family, I am not satisfied that there is a real chance he would be viewed as someone leaving Iran in order to evade military service or be viewed as a draft evader on return’: CB 387 [44]. However, the UK Home Office Report indicates that ‘[y]oung men from the age of 18 who are called for military service but do not present themselves to the authorities are considered as draft evaders’’: UK Home Office Report [7.2.2].
d.In finding that it was not satisfied that the Second Applicant had been called up to report for military service, and in therefore concluding that the Second Applicant would not be viewed as a draft evader if returned to Iran, the Authority:
i.erred in its consideration or understanding of the country information before it; and/or
ii.engaged in illogical or irrational reasoning.
e.If not for the Authority’s error, there is a realistic possibility that:
f.the Authority could have reached a different view as to whether the Second Applicant satisfied s 36(2)(a) or s 36(2)(aa) of the Migration Act 1958 (Cth); and
i.the Authority could have reached a different view as to whether the First, Third
ii.and Fourth Applicants satisfied, or were capable of satisfying, s 36(2)(a), (aa), (b) or s 36(2)(c) of the Migration Act 1958 (Cth).
g.The Authority’s decision was hence affected by jurisdictional error.
The applicants’ submissions
The applicants submitted that the Authority’s lack of satisfaction that the second applicant had been called up for military service was based on a misunderstanding of the relevant country information.
To this end, the applicants acknowledged that the Authority had referenced part of the Home Office report at R, [44]. However, they submitted that the extract relied on went only to the proposition that Iranian men are called up for military service, whereas the Home Office report also contained important information about how they are called up. The Authority either failed to properly consider that information or reasoned in an illogical and irrational way in the sense that the Authority’s lack of satisfaction was founded on an unwarranted assumption that if the second applicant had been called up, he would have received some sort of letter or summons from the Iranian authorities.
The information – which appears at paragraph [4.5.1] of the Home Office report (itself taken from the Austrian Centre for Country of Origin and Asylum Research and Documentation (ACCORD)) reads:
[A]ll men, upon reaching the age of 18, are called up as part of their military service duties. They must report to the military authorities within one month after the start of the Iranian calendar year in which they turn 18. Announcements are made via the media (including newspapers, radio and television) calling upon men born in a given year to report to the local conscription bureau.
The applicants submitted that based on this information – which was to the effect that Iranian males are “called up” through media announcements directed at an age group, rather than by way of “calls” to specific individuals – it was not open to the Authority to conclude that the second applicant had not been called up for military service. This was because, despite leaving Iran as a 15-year-old, during his time in Australia, he had achieved the age of 18 and would have been required to report to the Iranian authorities within one month of this birthday.
The applicants submitted that the Authority’s error was material despite the finding (also at R, [44]) that “[f]urther, given that [the second applicant] was only 15 years of age when [he] departed Iran with other members of his family, I am not satisfied that there is a real chance he would be viewed as someone leaving Iran in order to evade military service or be viewed as a draft evader on return”. According to the applicants, this finding could not be severed from that immediately preceding it so that it did not operate separately and independently of the first reason for rejection of the claim that the second applicant would come to the adverse attention of authorities because he had not performed military service. A misapprehension about the methodology of the “call up” process infected the view taken by the Authority of how the second applicant would be perceived on return to Iran.
The extension of this argument was that if the Authority had understood that the second applicant had been called up (while in Australia), it would have needed to consider whether he would be harmed as a result, notwithstanding he left Iran at a young age. On an application of the undemanding threshold identified in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152, there was a realistic possibility that the Authority could have concluded that the second applicant would face a real chance of persecution or a real risk of significant harm in Iran.
The Minister’s submissions
The Minister’s primary submission was that the applicants had mischaracterised the Authority’s reasons dealing with the military service claim. In particular, the Authority’s decision did not turn on how call ups for military service occur, but instead it turned on the second applicant’s personal circumstances; his departure from Iran on his own passport, his continued absence from that country, and the lack of evidence demonstrating he had been called up.
The Minister submitted that the Authority had correctly observed that there was no evidence submitted by the applicants indicating that the second applicant had been called up for military service and neither did the applicants provide any material suggesting that call-ups apply to those who leave Iran before turning 18 or that the second applicant was subject to a call up, despite being overseas. Further, the country information now relied upon by the applicants in this judicial review proceeding, did not cast light on this question and did not explain whether media announcement was the only method by which Iranian men were called up.
The Minister submitted that it was for the second applicant to satisfy the Authority that he had been required to complete military service, and the Authority’s reasons indicated that it was not prepared to accept that claim based on the state of the evidence, and the circumstances of the second applicant’s departure from Iran. This reasoning did not involve any misunderstanding of the country information that was before the Authority.
As far as the applicants alleged that the Authority’s state of non-satisfaction about the second applicant’s claim to have been called up for military service was irrational or illogical, the Minister submitted that the allegation failed to account for the difference between not accepting a contention made by an applicant and making a positive finding to the contrary (referring to AXE17 v Minister for Immigration and Border Protection [2019] FCA 695 at [33]). In circumstances where the Authority was not required to have some rebutting evidence before finding that the military service assertion was not made out, it was open for the Authority to not be satisfied of that claim on the state of the evidence in the circumstances of the case.
The Minister submitted further that any misapprehension (not conceded) as to how the second applicant was called up for military service did not result in jurisdictional error. This was because the Authority had considered the second applicant’s claim and had reasoned in a manner that did not turn on it not accepting that he had been called up for military service. Instead, the Authority gave a “further” reason for rejecting the claim, namely, that it was not prepared to accept that the second applicant would be viewed as a draft evader given that he had left Iran with his family at the age of 15.
Resolution – ground one
Despite the committed advocacy of Mr McDonald-Norman, I am not ultimately persuaded that the Authority erred in the manner alleged by ground one.
While I appreciate that the ground is not framed as a failure to consider or understand a claim, the way in which the military service claim was in fact articulated, assumes significance when it comes to interpreting the Authority’s reasons.
The claim, which was recorded at [46] of the second applicant’s statutory declaration dated 28 March 2018, was that the second applicant feared he would be detained on re-entry to Iran because he did not complete military service before he left that country.
The Authority’s logical response to a claim that was put in terms that focused temporally on the point of departure and that did not elucidate the basis for the apprehension, including by reference to country information, was to interrogate the assertion that the second applicant had not completed military service before leaving Iran. The Authority accepted this to be the case, by reference to information contained in the Home Office report as to the ages of draftees.
In what was apparently a response to this country information and the prospect that a person who was the subject of a call up, might be considered a draft evader, the Authority considered whether the second applicant might have this profile on return to Iran.
Part of this consideration involved the Authority turning its mind to the question of whether the second applicant had been called up to report for military service. The Authority was not satisfied that this was the case, and I accept the submission of the Minister that this conclusion was open to the Authority and did not betray any misapprehension of country information on the topic. The Authority’s lack of satisfaction was evidently based on the failure of the second applicant to positively establish that he had been the subject of a call up (however this might have been communicated) and his circumstances, which included that he had been able to leave Iran on his own passport and had been absent from Iran since the age of 15. The precise method by which a call up might occur did not inform the reasoning adopted by the Authority.
I also accept that the dispositive issue of whether the second applicant had a profile of a draft evader was dealt with by the Authority in its separate finding that because the second applicant had left Iran at the age of 15, this profile would not be attributed to him. This finding operated independently of the question of whether the second applicant had in fact been the subject of a military call up and was determinative of the claim to apprehend harm in connection with military service on a return to Iran.
Ground two
This ground reads:
2. The Authority fell into jurisdictional error because it erred in its consideration or understanding of the claims and evidence before it.
Particulars
a.In finding that it was not satisfied that the Second Applicant was in regular contact with Freemasons and that he participated in regular meetings with them, the Authority materially relied on its reasoning that the Second Applicant ‘has obtained permission to disclose some information, provided he is not disclosing other member’s identities, location and other details, yet has not provided any evidence that he attends regular meetings or is in regular contact with Freemasons’: CB 388 [47].
b.This reasoning was based on a misunderstanding of the Second Applicant’s claims or evidence about the nature and extent of what he could disclose: CB 346 [7]. As a result, the Authority erred in its consideration or understanding of the Second Applicant's claims and/or evidence.
c.If not for the Authority’s error, there was a realistic possibility that:
i.the Authority could have reached a different view as to whether the Second Applicant satisfied s 36(2)(a) or s 36(2)(aa) of the Migration Act 1958 (Cth); and
ii.the Authority could have reached a different view as to whether the First, Third and Fourth Applicants satisfied, or were capable of satisfying, s 36(2)(a), (aa), (b) or s 36(2)(c) of the Migration Act 1958 (Cth).
d.The Authority’s decision was hence affected by jurisdictional error.
The applicants’ submissions
The applicants submitted that the findings recorded by the Authority at R, [47] by which it rejected the second applicant’s evidence that he was in regular contact with Freemasons and had participated in regular meetings with them, reflected a misunderstanding or mischaracterisation of what the second applicant had in fact said about the limits on his ability to provide information relating to the Freemasons.
The second applicant gave this evidence in his statutory declaration dated 24 August 2018 where he said (applicants’ emphasis):
(a)Apart from what I have already explained in the past, I can only provide further documents to only confirm my membership with this group without disclosing details or other member’s identity, location and other details (CB 346, [4]); and
(b)The only reason I have not provided all of these information prior to this, is because I was not allowed to do so by my master but I have recently sought permission from my master to disclose (only) the information I am providing now (CB 346, [7]).
The applicants submitted that, contrary to what appeared to be the understanding of the Authority, the second applicant did not claim that he could disclose “some information, provided he is not disclosing other member’s identities, location and other details”. Instead, he repeatedly said that he could only disclose what he had disclosed, and that he could only confirm his membership of the group. The applicants submitted that the Authority’s reasons were premised on an incorrect assumption that the second applicant could have provided further information that he attended regular meetings or was in regular contact with Freemasons whereas the second applicant had clearly delineated the limits on his ability to provide information.
The Minister’s submissions
The Minister submitted that ground two involved a reading of the Authority’s reasons with “an eye keenly attuned to the perception of error”. The Authority’s observation (at R, [47]) that the second applicant had obtained permission to “disclose some information…yet has not provided evidence that he attends regular meetings or is in regular contact with Freemasons” was said to be entirely consistent with understanding the second applicant’s evidence to mean that he could provide only certain further documents (being those he had obtained his master’s permission to disclose).
The Minister submitted that the Authority’s treatment of the supporting documents, in the context of evaluating them against the criteria in s 473DD of the Act, supported the conclusion that the Authority had a correct appreciation of the limits that applied to the production of evidence relating to the Freemasons claim. In particular, the Minister referred to the Authority’s observation (at R, [13]) that the second applicant “has recently sought permission to provide the information that he is providing to the IAA”.
The Minister submitted that despite an appreciation of the limits that attached to the production of evidence, the Authority’s concern remained that there was an absence of evidence to satisfy it of the second applicant’s regular attendance at meetings or contact with the Freemasons. The view taken by the Authority was open to it on the state of the evidence before it.
Resolution – ground two
I am not persuaded that the Authority misunderstood the second applicant’s evidence about the limits that attached to his production and disclosure of information relating to his contact with the Freemasons. The Authority, on two occasions, referred to the second applicant’s evidence that he had sought permission from his master to provide the information that he was providing, and that this information was further circumscribed by the requirement that it not disclose the identities of other members, location and other details. The Authority exercised its discretion to consider this new information for the very reason that it was subject to these restrictions and could not previously have been provided.
However, it is clear from what the Authority recorded at R, [47] that even with an appreciation of the limits that attached to the production and disclosure of this evidence the Authority was concerned about a lacuna in the evidence directed at the second applicant’s attendance at meetings and contact with Freemasons. It was open, in my view, for the Authority to take this approach.
The Authority did not record a finding that the second applicant could have provided more evidence, had it been available and/or the subject of permission granted by the second applicant’s master. Instead, the Authority was unable to be satisfied, on the state of the evidence that was before it, that the second applicant’s contact with the Freemasons was regular or that he participated in regular meetings. A different Authority might have taken a different (more beneficial) view of the evidence and the limitations which attached to it, but that is not the lens through which this ground is to be approached.
The Authority had a complete and accurate understanding of the evidence concerning the second applicant’s contact with the Freemasons (referring to it chronologically at R, [45]-[47]) and based on this evidence, accepted that the second applicant had attended three meetings in the period from his initial contact in January 2016 and had some limited contact with the members of the group. The Authority was simply not satisfied that the contact was of a frequency that was consistent with the second applicant having a genuine interest in Freemasons. That conclusion was open to the Authority.
Orders
In circumstances where the applicants have been unsuccessful in establishing jurisdictional error in the decision of the Authority, it must follow that the application filed on 29 November 2018 and amended on 3 March 2025 be dismissed.
I will further order that the applicants, save for the third applicant, pay the Minister’s costs fixed in the amount of $8,371.30, this being the amount prescribed in Part 2 of Schedule 1 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law Rules 2021 (Cth) for migration proceedings that have been concluded at a final hearing.
I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons. Associate:
Dated: 15 April 2025
SCHEDULE OF PARTIES
MLG 3690 of 2018 Applicants
Fourth Applicant:
GFG18
0
2
1