AQF17 v Minister for Immigration and Border Protection

Federal Court of Australia|2018-06-26|Before: Farrell J

The appeal is dismissed.
The appellant must pay the first respondent's costs as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

FARRELL J: 1 AQF17 is a national of Iran who arrived in Australia as an unauthorised maritime arrival on 12 October 2012. He lodged his application for a Safe Haven Enterprise (Class XE) Subclass 790 visa (sometimes referred to as a SHEV) with the Department of Immigration and Border Protection on 21 April 2016. In it, he claimed to fear harm in Iran because he was of interest to the Basij. A delegate of the Minister for Immigration and Border Protection decided to refuse to grant the visa on 29 November 2016. On 18 January 2017, the Immigration Assessment Authority (IAA or Authority) affirmed the delegate's decision under Pt 7AA of the Migration Act 1958 (Cth). 2 By an amended notice of appeal filed on 25 January 2018, AQF17 appeals from a decision of the Federal Circuit Court of Australia made on 17 October 2017: see AQF17 v Minister for Immigration and Border Protection [2017] FCCA 2510. The FCC Judge dismissed AQF17's application for judicial review of the Authority's decision.

Background 3 In his entry interview conducted on 15 October 2012: AQF17 claimed that he had done military service in Iran for 2 years, "ten years ago" and he had worked for a bank from 2006 until "three months before" his interview, stating that the nature of his employment was "finance and insurance" and the detail of that employment was "at the end of the day I dealt with all the documents". He had also worked for a taxi agency for the last three months. AQF17 gave as his reasons for leaving Iran (as written): It was for both my life and employment. I had a conflict with a Basiji guy who was doing the task of the moral police. I got caught with my girlfriend. There was a physical conflict. I punched him and he hit me with a knife. This happened approx. 5 years ago. I worked in the bank for many years. When the management team changed they kicked me out with no rights. I was given 1,100,000 tomans in return for 7 years work. In answer to the question of whether he was ever arrested or detained by the police or a security organisation, AQF17 said: About 2 years ago because of my appearance. My girlfriend and I were walking and the law enforcement unit picked on us. We were detained for 1 day, we signed an undertaking. 4 In material attached to his application for the visa, AQF17 claimed that (as written): In 2007, he was attacked by the Basij at a roadblock because he was with his girlfriend and that "they" deemed this to be against Islamic views and "they" "wanted to use this as blackmail". The Basij wanted to transfer AQF17 and his girlfriend to their base outside Tehran for "sexual abuse". After arguments started, he was attacked with machetes and army knives; he was wounded in the shoulder, in his left thumb and just under his heart; and they left him there to bleed to death. Passing strangers took him to the hospital. AQF17 sought review by a court, but the case was "denied" because it was against a government organisation and they did not want it heard in public. He was forced to take no action because of threats of harm to him and his family. He was forced to work "under military and regime" in a private bank in its archive department. One day after work, AQF17 went with friends to a coffeehouse, where he expressed to his friends that he no longer believed in Islam or any religion, but only in Allah. A Basij officer who was sitting behind them recorded the conversation. The next day he received a call from his mother telling him to run away because the Basij had just left saying that they had a verdict against him and he was to be executed because he was no longer Muslim. For his safety, he went to his sister's place. The Basij subsequently broke into his sister's house and, at the same time, his parents' house for a second time. He went to his uncle's house in the south of Iran at Bandar Abbas, but the Basij found out he was there after a few days and broke into his uncle's house. AQF17's uncle told his cousin to take him a message about this while AQF17 was hiding at the docks. He moved back to Tehran to a friend's house; the friend suggested using a smuggler to get out of Iran. The Basij broke into his parents' house on different occasions and told them that if he goes back "I won't be able to see another sun light". He could not relocate within Iran because wherever he has gone the Basij has found him: "they are everywhere". 5 A 2009 report before the delegate indicated that the Basij was formed by order of Ayatollah Ruhollah Khomeini in 1979 with the intention that it function as the nucleus of "the army of 20 million" to defend the Islamic republic against threats, both foreign and domestic. Although the force of more than one million men was concentrated in Tehran, it was a large and omnipresent paramilitary organisation operating under the command of the Islamic Revolutionary Guard Corp. It had multifaceted roles, acting as the eyes and ears of the Islamic regime. Among other things, Basij acted as "morality police" in towns and cities by enforcing the wearing of the hijab; arresting women for violating the dress code; prohibiting male-female fraternisation; monitoring citizens' activities; confiscating satellite dishes and "obscene" material; intelligence gathering; and even harassing government critics and intellectuals. A report by the Department of Foreign Affairs and Trade (DFAT) as at July 2014 indicated that the Basij were "rarely involved" in morality policing in "recent years" and "normal" police carry out that work. 6 After the delegate made her decision to refuse to grant the visa on 29 November 2016, on behalf of AQF17, Mr James Brown wrote a letter of submissions to the IAA dated 28 December 2016, which I will refer to as the submission letter. It included references to the findings of a March 2016 "Report of the Special Rapporteur on the Situation of Human Rights in the Islamic Republic of Iran" which I will refer to as the March 2016 report.

IAA's decision 7 Relevantly to the grounds of appeal, the IAA made the following statements about the information before it in the decision record (DR) at [3]-[5] (as written): 3. I have had regard to the material referred by the Secretary under s.473CB of the Migration Act 1958 (the Act). 4. The IAA also received a submission from the applicant's representative, dated 28 December 2016. The submission quotes the delegate's findings and summarises the applicant's claim and I do not consider this new information within the meaning of s.473DC. It also quotes Australian case law and references the UNHCR Handbook on the Procedures and Criteria for Determining Refugee Status in relation to credibility. I consider this legal argument and not new information within the meaning of s 473DC and have had regard to these aspects of the submission. 5. The submission also extracts information from a March 2016 "Report of the Special Rapporteur on the Situation of Human Rights in the Islamic Republic of Iran" to argue that the delegate erred in her decision. This information was not before the delegate and constitutes new information for the purpose of s.473DC(1). The representative has argued that the report contradicts statements made by the delegate indicating that moral policing no longer takes place in Iran. Some of the new information is general in nature with some extracts relating to the increased monitoring of internet cafes but there is no credible personal information contained within these extracts that relate to the applicant nor I am satisfied that it could not have been provided before the decision was made; therefore s 473DD(b) is not met. I am also not satisfied there are exceptional circumstances to justify considering this new information as per s 473DD(a). 8 After discussing claims made in the entry interview, in the visa application and before the delegate at DR[8]-[13] in relation to the incidents in 2007 and 2010, the IAA concluded as follows at DR[14]-[15] (as written): 14. I accept that the applicant has in the past been stopped by the Basij when walking with his girlfriend. This is supported by country information before the delegate. [A report from DFAT dated 18 July 2014 was cited] However, I am not satisfied that the incident happened as described in the applicant's statement of claims and PV interview. I consider that the applicant has embellished his claims in relation the Basij attack on him. From his entry interview it appears that he instigated the fight with one Basij officer when he initially punched him. However in his statement of claims he was attacked by a number of Basij with machetes and army knives and beaten and left to bleed. This he confirmed in his PV interview and was largely consistent however the term machete was not used. I understand the purpose of an entry interview is not for an applicant to provide their claims in full; however, the applicant could have elaborated on this attack in his entry interview. He was not prevented from doing so by the entry interview officer despite being asked to tell her in two or three sentences why he left Iran. What I find more critical is that he did not mention he went to lodge a case against the Basij. These I consider significant matters and that the applicant chose instead to state that he had lost his banking job of seven years and was not compensated properly makes me doubt the credibility of this claim. The entry interview officer did at no stage attempt to stop the applicant from providing more information at this point. The applicant also stated during his PV interview that he would provide a copy of the complaint that he had in Iran. This has not been provided. The applicant was able to have other identity documents sent from Iran and had three years since arriving in Australia to obtain further corroborative documentation. Given the complaint is fundamental to his claims but that the applicant has not provided any documentation to support it when he specifically stated he had it and would. I am not satisfied that the applicant was attacked in the way he described. I accept that the applicant may have experienced an injury following his being stopped by the Basij resulting from a conflict that ensued. I am not satisfied that the attack was as severe at that claimed or that he went to hospital. The applicant has provided no medical records. I am not satisfied that he attempted to lodge a complaint; therefore, I do not accept the applicant was threatened by the Basij a few days later. I am not satisfied that the applicant would continue to be of interest to the authorities as a result of being stopped by them once in 2007. 15. The applicant was not consistent in his description of the other occasion of being stopped by the authorities because of his appearance. In his entry interview he stated he was detained between 11 am and 7-8 pm and signed an undertaking. In his PV interview he said they were stopped, detained and merely given a warning; they were made to promise not to dress as they had done. I do however accept that he was on one occasion stopped by the police or a law enforcement unit because of his appearance and detained briefly, given a warning and then released. That this regularly happens in Iran is supported by country information before the delegate. [Citing a news report from 8 September 2013] 9 The IAA also had concerns about AQF17's claim the he was recorded in a coffee house by a member of the Basij stating that he no longer believed in Islam but did believe in God because he did not mention it in his entry interview when being pursued by the Basij as a result of his remarks being recorded would have put his life at risk. Instead, one of the two reasons he gave for leaving Iran was the loss of his job without compensation, something which would not have put his life at risk. The IAA was also concerned about "inconsistent statements" in his statement of claims in his application for the visa and at the interview with the delegate in relation to being pursued by the Basij to his sister's and uncle's houses and about a person who had arrived in Australia on the same boat as AQF17. These matters were considered at DR[16]-[18] and the IAA concluded as follows at [19]-[20]: 19. The applicant's inconsistencies between his statement of claims and PV interview include the reason why he left his sister's house, initially it was because the Basij broke in but in his PV interview her place was too small. From his sister's house he went to his uncle's at Bandar Abbas and was caught a few days later. In his PV interview he went to stay at a friend's after his sisters and then when asked about Bandar Abbas, he said he went and stayed there for six weeks. It was not mentioned that his uncle's house had been broken into but just that the Basij were looking for him. He claimed [in his entry interview] to have known [a named person who arrived in Australia on the same boat as AQF17] from work and then in his PV interview he said had not known him until introduced by the smuggler. Given these inconsistencies, I am not satisfied that the events happened as claimed. In addition I do not think that the Basij would use their resources to pursue someone to Bandar Abbas for the mere fact they were overheard saying they no longer believed in Islam. In Iran it is a common phenomenon the younger generation those of a similar age as the applicant no longer believe in Islam. In many families, young people continue to be formally Muslim, out of a sense of duty; but perhaps only 16-17 per cent of people practise Islam, most others are secular, or even agnostic. [Citing a report in Asia News IT of 1 April 2015] 20. I accept that the applicant no longer believes in Islam yet believes in God; however, I am not satisfied that he was recorded by the Basij in a coffee house stating he no longer believed in Islam and was then pursued by the Basij because of this. I am not satisfied he departed Iran for the reasons he claimed.

Federal Circuit Court decision 10 At J[17], the FCC Judge recorded the grounds on which AQF17 relied as follows (as written): The grounds in the application are as follows: 1. The Assessment Authority (IAA) failed to take into account relevant considerations while deciding the matter. 2. The IAA did not consider the relevant evidence and did not give due weight to the evidence available to determine if there are genuine threats to the life of the applicant if deported back to Iran. 3. From the decision it appears that the IAA gave undue weight to minor inconsistencies in applicant's statements and raised questions on the credibility of the applicant. 4. The IAA in paragraph 5 made a jurisdictional error by not taking into account the relevant country information regarding current Human Rights situation in Iran which creates exceptional circumstances to consider the report. 5. In paragraph 12, the IAA again raised the issue of inconsistencies in the applicant's statements without taking into account the fact that how brutally the applicant was tortured by Basij. The act of IAA to ignore these facts amounts to an error of law. IAA was more concerned about why the applicant was not able to provide documentary evidence of his complaint against Basij and inconsistencies in the applicant's statements regarding detention and warnings given by Basij. 6. The IAA in paragraph 14 accepted the country information and also that Basij stopped the applicant in the past when he was walking with his girlfriend but in the same paragraph refused to accept the narrative of the incident told by the applicant and itself assumed that the incident never occurred. 7. Again, in paragraph 14, IAA accepted that the applicant might have experienced injuries resulting from the conflict with Basij. However, IAA overlooked the whole incident and presumed by itself that the attack by Basij was not sever to take it into account and by doing so committed an error of law. 8. The IAA in paragraph 15 highlighted minor inconsistencies regarding applicant's detention and ignored the fact that he was detain and tortured by Basij. This failure of IAA to not to take into account a relevant information constitutes error of law. 9. In paragraph 16, 17, 18, 19 and 20 IAA looked into the account of events provided by the applicant regarding his religious believes and how he was overheard by Basij when he was sharing his thoughts about Islam with his friends at a coffee house. The IAA completely ignored the Country information available in hands which shows how Basij would torture people for their un-Islamic views. Failure of IAA to take into account this relevant information equates to an error of law. 10. During the interviews, the applicant stated that he has well-founded fear of persecution if retums back to Iran. The country information also indicate that the people with anti-Islam views are most likely questioned by Basij and could result in torture and imprisonment. However, the IAA disregarded the relevant information and consequently committed error of law. 11. In paragraph 32, the IAA referred to DFAT report which states different consequences for apostasy including death penalty. IAA accepted that the risk of prosecution against the applicant exists but itself assumed that there are no real chances that the applicant faces real chances of persecution on the basis of his believes. By not taking into account the relevant consideration which is risk of prosecution creates error of law on the part of the IAA. 12. The IAA in closing remarks failed to consider all the relevant facts, evidence and reports published by different organizations and assumed independently that the plaintiff will not face a real chance of serious harm and that he does not meet the requirement to be a refugee. 13. IAA failed to take into account the relevant consideration that the applicant after providing all the relevant evidence had satisfied the requirement of the complementary protection. 14. The applicant reserves the right to add, amend or withdrawn any other grounds to support his claim. 11 The FCC Judge noted that AQF17's solicitor, Mr Ford, relied on his written submissions "which advance that the findings of inconsistencies were matters of minor or insignificant nature and sought to take issue with the adverse findings of credibility made by the Authority. Mr Ford advanced that the inconsistencies did not mean the applicant's entire story was concocted and took issue with the adverse inferences drawn by the Authority." The FCC Judge rejected those submissions, finding that the Authority did not hold that the applicant's entire story was concocted but rather that the Authority gave "cogent and rational reasons in support of the adverse credibility findings" and that it was "open to the Authority to make the adverse credibility findings in determining whether or not the applicant met the criteria for the grant of the visa". The FCC Judge found that nothing in the written submissions identified any jurisdictional error and the application should accordingly be dismissed: J[18]-[19], [31]. 12 In relation to ground 1, the FCC Judge found that the "generalised assertion of a failure to take into account a relevant consideration does not of itself, identify any jurisdictional error": J[20]. 13 In relation to ground 2, the FCC Judge noted that the applicant had not identified relevant evidence which the IAA failed to consider and found that on the face of the material before the Court, the Authority "complied with its statutory obligations in the conduct of the review and complied with the obligations of procedural fairness by giving the applicant an opportunity to put on new information and submissions and taking the submissions made into account … [and] there was a genuine and meaningful engagement with the submissions put on by the applicant": J[21]. 14 In relation to ground 3, the FCC Judge found that, for the reasons previously given, it was a matter for the "Tribunal" to determine the weight to give to inconsistencies, which could not properly be characterised as minor, and the assessment of AQF17's credit was a proper matter for the Authority to determine: J[22]. 15 In relation to ground 4, the FCC Judge found that it was a matter for the Authority to determine what country information to take into account. Insofar as the ground sought to take issue with the Authority's determination that s 473DD was not met, its finding was "open and reasonable on the material before the Authority and cannot be said to lack and [sic] evident and intelligible justification", nor was there a proper basis to find that the Authority "took into account a narrow meaning of exceptional circumstances" or to find that the "Tribunal failed to take into account the whole of the provisions": J[23]. 16 The FCC Judge found that grounds 5 to 9 "reflect a disagreement with the adverse findings by the Authority and do not identify any jurisdictional error"; for reasons already given, inconsistencies "cannot be identified as being of a trivial or insignificant nature" and the "adverse credibility findings were open and the Authority properly identified the applicant's claims and made findings dispositive of those claims that were open on the material before the Authority": J[24]. 17 In relation to ground 10, the FCC Judge found again that it was a matter for the Authority to determine what weight to give to country information, and there was no basis for finding that the Authority failed to take into account the applicant's claims, evidence and submissions. The FCC Judge noted that, in its reasons, the Authority referred to country information that indicated that non-practising Muslims were common throughout Iran and that prosecution for apostasy was rare but when it did occur, it was in relation to certain religious activities, none of which were relevant to AQF17. The FCC Judge also noted that, to the extent that the Authority disregarded the information in the March 2016 report, it provided reasons for rejecting it having regard to s 473DD and those reasons were "reasonable and open to the Authority". The FCC Judge found that no "relevant information" had been identified which the Authority disregarded; its reasons in relation to whether AQF17 had a well-founded fear of persecution were open to it, and ground 10 was "in substance an invitation to this Court to engage in an impermissible merits review": J[25]-[26]. 18 The FCC Judge found that insofar as ground 11 sought to refer to the March 2016 report, for reasons already given, the ground could not be made out and no relevant information had been identified which the Authority failed to take into account. On the face of the material before the Court, the Authority correctly identified the relevant law: J[27]. 19 The FCC Judge found ground 12 to be an invitation to engage in impermissible merits review, with "no relevant fact, evidence or report identified that was not taken into account by the Authority" and "for the reasons earlier given, the March 2016 report was properly excluded by the Authority": J[28]. 20 The FCC Judge also found that ground 13 invited impermissible merits review and there was no relevant consideration identified which was not taken into account: J[29]. 21 Ground 14 did not advance a claim of jurisdictional error.

Appeal to this Court 22 The notice of appeal has 22 numbered paragraphs under the chapeau of "grounds of appeal". The first two paragraphs seek writs of certiorari and mandamus.

Grounds relating to claimed error by the Authority 23 The third paragraph of the grounds asserts that the Authority "made the following errors". Paragraphs [4] to [13] then enumerate the grounds of alleged error by the Authority as follows (as written): 4. At paragraph 5 of the Immigration Assessment Authority decision, the IAA has stated that there is no credible personal information to support the Applicant's case. The IAA however has no evidence for such a finding. The IAA has not pointed to any evidence which would suggest that the personal information is not credible. The IAA has also acted unreasonably in making such a finding as stated by the High Court in the Li case. 5. At paragraph 5 of the IAA decision, the IAA has failed to take into account a relevant consideration. The IAA has chosen to hide behind Section 473 DC of the Migration Act 1958 as a reason for ignoring the new information. To adopt such an position is unreasonable as per the High Court in the Li case. The procedure before the IAA is meant to be a fair procedure. How can the procedure be fair when the IAA chooses not to look at new information? The Li case applies irrespective of Section 473 DC. If new information comes to light, then the IAA is obligated to accord the Applicant with procedural fairness and consider the new information. 6. The IAA has drawn adverse inferences from a number of inconsistencies. The High Court in the SGLB case criticised any attempt by the IAA to punish visa applicants for making inconsistent statements. Here the applicant is being punished for the making of an inconsistent statement. Even if an inconsistent statement exists, this does not of itself mean that the Applicant was not the subject of persecution. It is unreasonable for the IAA to draw adverse inferences from the making of an inconsistent statement. 7. At paragraph 12 of the IAA decision, the IAA has imposed on the applicant an impermissible burden of proof. 8. At paragraph 14 of the IAA decision, the IAA has no evidence for its finding that the incident happened as stated. Further the IAA has no evidence for its findings that the claims were embellished. Even if the Applicant made an inconsistent statement, this does not of itself mean that the incident did not occur as stated. Further, even if the applicant embellished his claim, this does not mean that the Applicant was not the subject of persecution. The fact that there was an inconsistency concerning the mention of the term "machete", this does not of itself mean that the Applicant was not the subject of persecution. The fact that the Applicant did not mention the fact that he complained to the Basji does not mean that he was not persecuted. 9. The IAA at paragraph 14 also imposed an impermissible burden of proof on the Applicant by criticising the Applicant for not obtaining identity documents from Iran. 10. At paragraph 14 of the IAA decision, the IAA has indicated that the attack was not so severe. The IAA however has no evidence for such a finding. 11. At paragraph 15 of the IAA decision, the fact that there was an inconsistency as to when the Applicant was detained does not mean that he was not the subject of persecution. He was the subject of persecution quite irrespective of the time that he was persecuted. It is the act of persecution which is important and not the time as to when he was attacked or for matter persecuted. The subsequent detention is an irrelevant consideration. 12. At paragraph 19 the IAA has indicated that the Basij would not be perusing the Applicant. The IAA however has no evidence for such a finding. The IAA also has no evidence for its comments about young people. 13. At paragraph 20 of the decision, the IAA has no evidence for its finding that the events were not recorded. 24 At the commencement of the hearing the Court raised with Mr Ford the fact that the grounds set out in paragraphs [4]-[13] make no claim that the FCC Judge erred in his reasons but instead seek review of the Authority's decision. The Court also noted the Minister's submissions that the grounds set out at paragraphs [7] and [9] and the "no evidence" elements of grounds [8], [10], [12] and [13] appear to be new. However, the submissions filed on behalf of AQF17 did not identify new grounds, there was no application for leave to rely on new grounds nor was there any explanation for why those grounds were not raised in the proceedings in the Federal Circuit Court. Mr Ford explained that the grounds reflected the original application to this Court, which had sought judicial review under s 39B of the Judiciary Act 1903 (Cth). He submitted that the Federal Circuit Court is a "no pleadings" jurisdiction under s 50(1) of the Federal Circuit Court of Australia Act 1999 (Cth) so, in effect, the concept of "new grounds" has no role. The explanation is inadequate and the submission is misconceived. 25 AQF17 (represented by Mr Ford) was given leave to amend the notice of appeal earlier this year to take account of the fact that this proceeding could only proceed as an appeal from the Federal Circuit Court's decision having regard to ss 476 and 476A of the Migration Act. It is not apparent that the difference has been fully appreciated and the opportunity was not taken to amend grounds [3] to [13] appropriately. Further, the fact that s 50(1) of the Federal Circuit Court of Australia Act provides that proceedings may be instituted in that Court without pleadings is beside the point. Section 50(1) has effect subject to the rules of that Court: s 50(2). Part 44 of the Federal Circuit Court of Australia Rules 2001 (Cth) deals with "Proceedings under the Migration Act 1958". Rule 44.05(1) requires applications for remedies in exercise of that Court's jurisdiction under s 476 to be made in accordance with the approved form. Mr Ford used that form to make an application to the Federal Circuit Court in this matter. The form specifically provides for the specification of grounds. Further, r 44.11(c) permits that Court to dispense with a "show cause" hearing under r 44.12 and list the matter for final hearing "on the grounds set out in the application". Rule 44.11(g) permits a person to apply for further and better particulars of a ground. The regime is predicated on the applicant for relief in the Federal Circuit Court specifying grounds on the basis of which that Court will determine whether or not the decision under review is affected by jurisdictional error. 26 The form of the notice of appeal filed in this matter may be unsurprising in cases involving a self-represented litigant and some tolerance might be afforded people who are unfamiliar with the Court's processes and who often do not speak English. However, no legal representative should file a notice of appeal in that form. 27 In DPE16 v Minister for Immigration and Border Protection [2018] FCA 61 at [11], the Court accepted that grounds of appeal which address the reasons of the administrative decision-maker without reference to the FCC Judge's reasons are, in effect, an invitation to this Court to place to one side the decision of the Federal Circuit Court and to form its own view as to the adequacy of the administrative decision-maker's reasons for decision. It is generally inappropriate because it deprives the appeal court of the benefit of the FCC Judge's consideration of issues argued in the original jurisdiction. In cases of this kind, it demonstrates a failure to recognise the scheme for judicial review of administrative decisions prescribed by the Migration Act. Section 476 expressly provides for original jurisdiction to be exercised by the Federal Circuit Court in relation to review decisions under Pt 7AA. That alone would be a sufficient basis for dismissing these grounds: see CNN15 v Minister for Immigration and Border Protection [2017] FCA 579 per Gilmour J citing SZJHE v Minister for Immigration and Citizenship [2008] FCA 1771 at [6] per Flick J. 28 It is also inappropriate to fail to address the need to obtain leave or any basis for the grant of leave to raise grounds which were not raised in the Federal Circuit Court. In the absence of reason to do so, a Court will not allow an appellant to depart from the basis upon which a case has been conducted at first instance, although there are circumstances in which the interests of justice may lead an appellate court to permit a party to raise a point that was not taken at trial: see Sun v Minister for Immigration and Border Protection (2016) 243 FCR 220; FCAFC 52 at [89] per Flick and Rangiah JJ and the cases there cited. 29 In order to determine where the interests of justice lie, the merit of the grounds set out in paragraphs [7] and [9] and the "no evidence" elements of grounds [8], [10], [12] and [13] will be considered. In the interests of justice, having regard to the nature of AQF17's visa application, the other grounds which were raised before the FCC Judge will be treated as amounting to a complaint that the FCC Judge erred in failing to accept that those grounds revealed jurisdictional error. 30 Ground 3 is inextricably linked to grounds 4 to 13.

Grounds 4 and 5 31 These grounds allege that, at DR[5] (which is set out at [7] above), the IAA found that "there is no credible personal information to support the Applicant's case", saying that it is not logical for the IAA to conclude that the personal information is not credible when it has no evidence to support the finding. In submissions, Mr Ford says that even if AQF17 did not provide evidence to support his claims, it would not mean that it was not credible. He submitted that the Authority imposed an impermissible burden of proof reasoning this way. He says that it was not fair or reasonable for the IAA to "refuse to look at the new information", and cites the High Court's decision in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; HCA 18 (MIC v Li) at [62]-[63] and [70] as authority for the proposition that there is a common law duty to act fairly and reasonably which overrides any statutory exclusion. He says "the common law applies to qualify what may appear in the statute". He relies on the High Court's decision in Berenguel v Minister for Immigration and Citizenship (2010) 264 ALR 417; HCA 8 (Berenguel v MIC) at [26] for the proposition that for the purposes of s 55 of the Migration Act, a decision-maker is obliged to look at any relevant information, even if the legislation is subsequently amended to preclude such a review. That is, the obligation to consider new information is a common law obligation and cannot be excluded by way of statute. 32 Grounds 4 and 5 cannot be made out and Mr Ford's submissions are entirely misconceived. 33 First, the IAA did not make a finding in DR[5] that AQF17's personal information was "not credible". The IAA said that "there is no credible personal information contained within these extracts that relate to the applicant". The phrase "credible personal information" is language used in s 473DD(b)(ii) and the IAA was obliged to direct itself to whether the quoted extracts from the March 2016 report, as "new information", contained "credible personal information" in considering whether or not it was able to take them into consideration. Section 473DD(b)(ii) appears in Subdiv 3C of Pt 7AA and it provides as follows: 473DD Considering new information in exceptional circumstances For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless: (a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and (b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information: (i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or (ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims. It is also useful to note the terms of s 473DC which contains the definition of "new information": 473DC Getting new information (1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that: (a) were not before the Minister when the Minister made the decision under section 65; and (b) the Authority considers may be relevant. (2) The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances. (3) Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information: (a) in writing; or (b) at an interview, whether conducted in person, by telephone or in any other way. 34 Section 473DD expressly prohibits the Authority from considering any "new information" (as defined in s 473DC(1)) unless it is satisfied that there are "exceptional circumstances" to justify it and the applicant satisfies the Authority that either the new information was not and could not have been put before the Minister (or his delegate) when the decision to refuse the visa was made under s 65 or the new information is "credible personal information" that was not previously known and had it been known, it may have affected consideration of the applicant's claims. 35 I accept the Minister's submission that the FCC Judge did not err at J[23] when he accepted that the Authority's findings at DR[5] were open to it. Both parties accept that the March 2016 report was not before the delegate when she made the decision to refuse the visa. It was therefore "new information" as defined in s 473DC(1) and the Authority found it to be "new information" which was in existence well before the delegate made the decision to refuse the visa in November 2016. The information derived from the March 2016 report which was included in the submission letter was not about AQF17 personally but was rather "country information". It was therefore not "credible personal information". Neither limb of s 473DD(b) was satisfied so that the Authority was obliged not to consider the information derived from the March 2016 report having regard to the words in the chapeau of s 473DD. 36 The propositions Mr Ford contends for based on the decisions of the High Court in MIC v Li and Berenguel v MIC must be rejected. 37 The High Court's decision in MIC v Li concerned the exercise of a discretionary power in a procedural matter. At [63], Hayne, Keifel and Bell JJ found that the standard to be observed by what is now the Administrative Appeals Tribunal in the exercise of that power derived not only from s 357A(3) of the Migration Act (that is, in applying Div 5 of Pt 5, the Tribunal must "act in a way that is fair and just") but also from a presumption of law that the legislature is taken to intend that a discretionary power, statutorily conferred, will be exercised reasonably. Neither this finding, nor their Honours' reasons at [70] suggest that express legislative direction enacted by Parliament will be overridden by a rebuttable presumption concerning legislative intent. Consistent with that view, their Honours conclusion at [86] of their reasons: … Whatever be the consequence of a breach of s 357A(3), a matter which it is not necessary to determine, it cannot be said that the Migration Act evinces an intention that the requirement of the law that the discretionary power in s 363(1)(b) be exercised reasonably not apply. That presumption of law is not rebutted. The Tribunal's decision to affirm the delegate's decision cannot stand. 38 Ground 5 misconceives the Authority as having a choice about whether it would consider the extracts from the March 2016 report in the submission letter. It did not, since the Authority (correctly in my view) found that the extracts did not satisfy either limb of s 473DD(b); it also found that no "extraordinary circumstances" existed so that s 473DD(a) was not satisfied. It cannot be legally unreasonable for the Authority to fail to consider "new information" when the statute directs it not to do so in clear terms. Nor can the Authority be said to have "chosen to hide behind" that law when it complied with it: that claim in ground 5 is scandalous, implying malfeasance for which there was no basis in the Authority's reasons. 39 The High Court's decision in Berenguel v MIC does not assist Mr Ford's argument. In that case the High Court was called upon to construe reg 1.15B(5) of the Migration Regulations 1994 (Cth) which provided that "If a person applies for a General Skilled Migration visa, the person has vocational English if the person satisfies the minister that the person has achieved, in a test conducted not more than 2 years before the day on which the application was lodged" certain IELTS test scores. The requirement was imposed under a clause of Sch 2 of the Migration Regulations which appeared under the heading "Criteria to be satisfied at time of application". The applicant applied for the visa in April 2008, achieved the requisite scores in May 2008 and provided the result to the Department in June 2008. A delegate of the Minister refused the visa in December 2008 on the basis that reg 1.15B(5) had not been satisfied because the tests results had not been achieved "not more than 2 years before the day on which the application was lodged". 40 At [24] of Berenguel v MIC, the High Court found that the purpose of the relevant provisions of the Migration Regulations was to ensure that when a delegate of the Minister makes a decision about a visa application, the applicant will have demonstrated recent competence in English. At [25], the Court found that reg 1.15B(5) was capable of being construed to mean that the test had been conducted no earlier than 2 years before the application for the visa was lodged. The more stringent interpretation propounded by the Minister could only be imposed by some direct operation of the undefined heading "Criteria to be satisfied at the time of application". At [26], the Court (relevantly to Mr Ford's submissions) found that: Moreover, in this case, the construction for which the minister contends leads to such plain unfairness and absurdity that it is not to be preferred. The alternative construction for which the plaintiff contends does not compromise the purpose of the Migration Regulations. There is nothing to prevent relevant information being submitted to the minister after lodgement of the application. Indeed, s 55 of the Act expressly provides for that to be done and requires the minister to have regard to such information. The Act specifically provides that the minister may have regard to up-to-date information and, where the purpose of the relevant criterion is to ensure that the standard of English language competency is recently ascertained, a construction which would deprive him of the most recent information seems to be antithetical to that purpose. 41 Berenguel v MIC is a decision concerned with the construction of a regulation which was said to be open to two interpretations and the interpretation which produced the least absurd or unfair result was preferred. It is not authority for the proposition that there is a common law obligation to consider new information which cannot be excluded by statute contended for by Mr Ford. Further, s 55 (which remains in the same form) applies to decisions of the Minister. Section 473DD is a provision which applies specifically to decisions of the IAA.

Ground 6, 8, 10 and 11 42 These grounds take issue with the Authority's failure to accept aspects of AQF17's claims and its reliance on inconsistencies in AQF17's evidence. 43 The Minister accepts that grounds 8 and 11 of the notice of appeal are similar to those pleaded as grounds 6 and 8 in the proceedings in the Federal Circuit Court. Those grounds focussed on DR[14] and [15] and were rejected at J[19] and [24] (see [11] and [16] above). For the reasons which follow, those grounds are not made out. 44 I do not accept the Minister's submission that ground 10 raises a new ground. Ground 10 claims that there was "no evidence" for the finding that the attack in the incident in 2007 was not severe. This issue appears to have been raised in ground 7 of the grounds before the Federal Circuit Court by the use of the language "[h]owever, IAA … presumed by itself that the attack by Basij was not sever to take it into account" (as written). I nonetheless find that this ground is not made out for the reasons which follow. Ground 8 raises a "no evidence" ground for the first time, that is, that AQF17's claims were embellished. As noted above, "new matters" require leave which I refuse on the basis that they have no prospect of success for the reasons which follow. 45 Without particulars, ground 6 of the notice of appeal takes issue with the Authority's reliance on inconsistency in AQF17's evidence to draw inferences adverse to AQF17's claims, characterising the inferences as "punishment" for the inconsistencies. He relies on the decision of the High Court in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12; HCA 32 (MIMIA v SGLB). As may be inferred from Mr Ford's written submissions to the Federal Circuit Court, he relies in particular on what was said by Kirby J at [73(7)] in his dissenting judgment as follows (citations removed): Remembering the purpose of credibility: Credibility is often seen as the crucial issue in tribunal determinations of refugee status. The references in the Refugees Convention to the existence of "fear", and to the grounds of that emotion, necessarily imply that those deciding refugee claims will have to make highly personal evaluations of the subjective feelings and motivations of applicants. As I said in Minister for Immigration and Multicultural Affairs v Rajamanikkam, "[m]any, perhaps most, claims to refugee status involve examination of the truthfulness of the factual assertions of the applicant. Many turn on the assessment of credibility". There was some suggestion during the hearing of this appeal that inconsistent statements by asylum seekers might suggest fabrication of evidence, and might justifiably lead to negative conclusions as to credibility. While such a conclusion is sometimes justified, refugee cases involve special considerations where credibility is an issue. There is no necessary correlation between inconsistency and credibility in such cases. Many factors may explain why applicants present with the appearance of poor credibility. These include: mistrust of authority; defects in perception and memory; cultural differences; the effects of fear; the effects of physical and psychological trauma; communication and translation deficiencies; poor experience elsewhere with governmental officials; and a belief that the interests of the applicants or their children may be advanced by saying what they believe officials want to hear. The tribunal must be firmly told - if necessary by this court - that the process is one for arriving at the best possible understanding of the facts in an inherently imperfect environment. It is not to punish or disadvantage vulnerable people because they have made false or inconsistent statements, or are believed to have done so. 46 Mr Ford has raised this argument in a number of matters without success: see C7A/2017 v Minister for Immigration and Border Protection [2018] FCCA 458 (C7A/2017 v MIBP) at [19]-[31]. As noted by the Minister's counsel in her written submissions, in that case Judge Neville identified the fact that Mr Ford has three times relied on this passage from Kirby J's dissenting judgment when appearing before the High Court and on each occasion a Justice of that Court (Bell and Nettle JJ) pointed out to him that his reliance was misplaced. One example is set out in C7A/2017 at [29]: in MZAHH v Federal Circuit Court of Australia [2016] HCATrans 177 (2 August 2016) at 27 Bell J said (citations removed): The contention that the credibility of an applicant for review before the Tribunal is irrelevant to its determination appears to be based on a misreading of this Court's decision in Minister for Immigration & Multicultural and Indigenous Affairs v SGLB. To the contrary, as Justice Nettle held in SZUSH v Minister for Immigration & Border Protection, where the establishment of facts depends on oral evidence, the evidence must be assessed and weighed in light of its apparent credibility and reliability and findings must be made according to that assessment. 47 It is true that credibility findings are not beyond scrutiny and jurisdictional error may occur where such findings are unreasonable or without a logical, rational or probative basis or founded on an objectively minor matter: see the summary of principles set out in DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 (DAO16 v MIBP) at [30]. Where logical and reasonable findings based on evidence (including the applicant's evidence) which are inconsistent in ways which are material to the applicant's claims lead to adverse credibility findings and to the decision-maker finding that it does not accept all or some of those claims, the finding cannot properly be characterised as "punishment". In my view, the Authority's findings at DR[14]-[15] are logical and reasonably based and the FCC Judge did not err in his findings at J[19] and [24]. 48 In their essentials, the Authority accepted AQF17's claims made in his entry interview concerning the incidents in 2007 and 2010. The differences between AQF17's entry interview account of the 2007 incident (see [3] above) and his subsequent accounts vary in significant ways which support the Authority's findings that AQF17's claims made after the entry interview were an "embellishment". Differences in his accounts of the 2007 incident include who instigated the attack on AQF17, how many Basij were involved in it, the degree of violence attending it and new claims were made concerning the severity of his injury, that he was hospitalised as a result, that he had lodged a complaint concerning the Basij and that as a result the Basij threatened to harm him and his family members a few days after the complaint was made. The Authority was entitled to take into account that AQF17 told the delegate that he could provide a copy of the complaint but failed to do so and to find "significant" his failure to mention the complaint in his entry interview when it is that complaint which was said to be the cause of threats made by the Basij against him and his family. The Authority was also entitled to take into account inconsistencies in AQF17's accounts of the 2010 incident. The fact that the Authority accepted that there were incidents in 2007 and 2010 does not require it to accept AQF17's changing accounts uncritically or require the Authority to provide "rebutting" evidence: see CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496; FCAFC 146 at [65]. 49 In my view, the FCC Judge did not err when he found that the inconsistencies identified by the Authority at DR[14] and [15] cannot properly be characterised as minor or insubstantial in most instances. The fact that the Authority noted that there was a difference in AQF17's accounts of the 2007 incident concerning whether a machete was present was plainly not determinative of its decision. I do not accept that it was unreasonable for the Authority to draw adverse inferences based on the inconsistencies which it identified and to find that it was not satisfied that those incidents had occurred as AQF17 claimed in his visa application and at the interview with the delegate and that the attack in the 2007 incident was not as severe as claimed. On that basis, grounds 8 and 10 must be rejected; there was a basis for the Authority's finding regarding the severity of the attack and it was not necessary for the Authority to have evidence rebutting AQF17's claims made after the entry interview to make that finding. 50 In his submissions, Mr Ford reiterated a number of times the argument that it is neither reasonable nor logical for the Authority to conclude from the identified inconsistencies in AQF17's evidence that he was not persecuted. That submission cannot be accepted: the inconsistencies in the evidence went to the basis of his claims to fear persecution. 51 For completeness, and relevantly to ground 11, at DR[30] the Authority specifically considered the punishments which might be imposed for inappropriate dress and AQF17 walking down the street with a girlfriend in Iran. Based on country information, the Authority found that the laws under which the punishments might be imposed were laws of general application. While the Authority accepted that there was a possibility that AQF17 might be stopped, warned, arrested and taken to a police station and held overnight for such conduct, it was not satisfied that that would constitute serious harm. The Authority also considered whether AQF17 might be exposed to the more severe punishment of lashing, but found that there was not a "real chance" of that occurring. The Authority was entitled to take the country information into account in assessing whether AQF17's claims supported a well-founded fear of persecution and no error is revealed.

Grounds 7 and 9 52 These are claims that the Authority imposed an "impermissible burden of proof" on AQF17. Ground 7 simply refers to the decision record at [12]. DR[12] reports that in the interview with the delegate, AQF17 was asked if he had any documents that show he lodged a complaint against the Basij and he said that he had them in Iran and would get them from his parents. It goes on to state that no documents were provided. The reference to identity documents in ground 9 appears to be a mistake. The relevant part of DR[14] is as follows: The applicant also stated during his PV interview that he would provide a copy of the complaint that he had in Iran. This has not been provided. The applicant was able to have other identity documents sent from Iran and had three years since arriving in Australia to obtain further corroborative documentation. Given the complaint is fundamental to his claims but that the applicant has not provided any documentation to support it when he specifically stated he had it and would. I am not satisfied that the applicant was attacked in the way he described. 53 I do not accept that any impermissible burden was placed on AQF17. I accept the Minister's submission that the Authority was entitled to take into account that AQF17 had not provided documents about his complaint notwithstanding that he said he had them, he could get them from his parents in Iran (DR[12]), and he had volunteered to do so but had not when it had been possible for AQF17 to have identity documents sent to him. It is for the applicant for a visa to advance whatever evidence or argument they wish to advance in support of their contention that they have a well-founded fear of persecution; the decision-maker (in this case, the Authority) must then decide whether or not the claim has been made out: Abebe v Commonwealth (1999) 197 CLR 510 at [187] per Gummow and Hayne JJ. 54 As this issue was not raised in the proceedings in the Federal Circuit Court, AQF17 requires leave to raise it on the appeal. As I find that the grounds have insufficient merit to warrant the grant of leave, I will refuse it.

Grounds 12 and 13 55 Grounds 12 and 13 assert that the IAA had no evidence for the findings that the Basij would not be pursuing AQF17 and that he was not recorded in a coffee house by the Basij. Although the Authority's findings on these matters were challenged in the Federal Circuit Court, it was not on a "no evidence" basis so that leave is now required. These grounds also have no prospect of success and leave should not be granted for them to be advanced for the first time on appeal. 56 The Authority accepted that AQF17 did not believe in Islam but did believe in God. It did not accept his claim that he was recorded saying that in a coffee house by a member of the Basij or that he was pursed by the Basij to his house and the houses of his sister and uncle for the reasons set out at DR[16]-[19] which are summarised at [9] above. The reasons are logical and cogent; the finding was open to the Authority to make for the reasons that it gave. As noted above, the Authority is not required to have "rebutting" evidence before rejecting some aspect of a claim. In making its comment about the religious convictions and practices of "young people" in Iran at DR[19], the Authority relied on a news report from 1 April 2015 identified in a footnote, as it was entitled to do.

Grounds relating to claimed error by the FCC Judge 57 Ground 14 asserts that the Federal Circuit Court made "the following errors of law" in making its decision. Grounds 15-22 then made a number of attacks on the manner in which the proceedings before the FCC Judge were conducted and sought to establish that it was inappropriate for the FCC Judge to give ex tempore reasons which (based on the associate's certification) were published a month later. 58 At the hearing, Mr Ford abandoned grounds that related to the manner in which the FCC Judge conducted the proceedings and his delivery of ex tempore reasons. Mr Ford instead sought to rely on a ground that the FCC Judge's reasons were inadequate. Although the Minister suggested that this was a new ground, grounds 18-19 and 22 go some way to raising this issue. The matters which I take to raise the issue of inadequacy of reasons are as follows: 18. … Further, if the Applicant pleads a particular case or for that matter a particular legal argument, then [the FCC Judge] is obligated to address the particular case and say why the case does or does not apply. Further, [the FCC Judge] is supposed to examine the particular legal argument and express a considered opinion as to why the legal argument does or does not apply. 19. Unfortunately, none of the above happened in this and other cases. Despite making specific references in my submissions to one particular High Court case, [the FCC Judge] did not address that case or for that matter the arguments which underpin that case. There was no attempt to comprehensively deal with the law as it concerns inconsistency. … 22. … [The FCC Judge's] analysis of the grounds was at best cursory and did not reflect a proper and comprehensive analysis of the claims. 59 Grounds 18 and 19 raise the FCC Judge's failure to mention MIMIA v SGLB. The submissions filed by Mr Ford in the Federal Circuit Court dealt exclusively with the issue of inconsistency and primarily with the passage from Kirby J's dissenting judgment in MIMIA v SGLB quoted above. Mr Ford made no oral submissions at the hearing before the FCC Judge despite being invited to do so. 60 In DAO16 v MIBP at [47], the Full Court addressed the issue of the requirement to give reasons as follows: 47 The requirement to give reasons is an incident of the judicial process and reasons ought to be given in any case in which an appeal lies from the decision in order to allow that right of appeal to be exercised: Public Service Board (NSW) v Osmond (1986) 159 CLR 656 at 667; 63 ALR 559 at 566; 9 ALN 85 at n 89 (Gibbs CJ). As Mahoney JA stated in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 273: Where, in the decision of an ordinary dispute, reasons are necessary, they are necessary because of the expectation that, being a judicial decision, a sufficient explanation will be given of why the order was made. And, in my opinion, it will ordinarily be sufficient if … by his [or her] reasons the judge apprises the parties of the broad outline and constituent facts of the reasoning on which he [or she] has acted. 61 I am satisfied that the FCC Judge's reasons dealt sufficiently with the issue of inconsistency raised in the grounds before him and in Mr Ford's brief written submissions. It is true that the FCC Judge did not refer expressly to MIMA v SGLB. However at J[18], the FCC Judge noted that Mr Ford relied on his written submissions and that they sought to advance arguments that the Authority's findings of inconsistency related to matters of a minor or insignificant nature, they took issue with the resulting adverse inferences and credibility findings and advanced the argument that the inconsistencies did not mean that AQF17's story was concocted. Earlier in his reasons, at J[8]-[10], the FCC Judge summarised the Authority's decision record, identifying the areas in which the Authority found inconsistencies and the basis for the finding. In relation to ground 3, the FCC Judge found that the inconsistencies were not minor or insubstantial and found that the assessment of AQF17's credit was a proper matter for the Authority to determine at J[22]. Ground 8 raised an issue relating to inconsistencies and in addressing grounds 5-9, the FCC Judge repeated his finding that the inconsistencies were not minor or insubstantial. None of the other grounds raised the question of inconsistency. 62 Albeit that the FCC Judge's reasons in relation to inconsistency were brief, he addressed the substance of the matters raised in Mr Ford's written submissions. I accept the Minister's submission that the failure to mention MIMIA v SGLB expressly is not an appellable error in those circumstances. 63 Relevantly to ground 22, in oral submissions in this Court, Mr Ford submitted that the FCC Judge failed to discuss issues of logicality and probity in his reasons and he should not have addressed grounds 5 to 9 together but dealt with them individually. 64 It is hardly surprising that the FCC Judge's reasons do not discuss logicality and probity, since those words were not mentioned in either Mr Ford's submissions to the FCC nor in the grounds. The emphasis on whether there was a logical and probative connection between the inconsistencies identified by the Authority and the adverse findings in relation to AQF17's claims were all raised in grounds of appeal and submissions to this Court by reference to the High Court's decision in MIC v Li and the Full Court's decision in DAO16 v MIBP. 65 I accept that the manner in which the FCC Judge dealt with grounds 5 to 9 was summary and conclusions were stated at a high level of generality, matters the subject of adverse comment in DAO16 v MIBP. However, I do not consider that his conclusions are wrong and the FCC Judge was not assisted at all by Mr Ford. Even if I were to find that the FCC Judge's reasons were inadequate, as a matter of discretion in this case, I would not remit the matter to the Federal Circuit Court for further consideration. Aside from any other consideration, I have no reason to think another FCC Judge would be better assisted by Mr Ford. More substantively, I have found no error in the Authority's reasons on any of the bases identified by Mr Ford.

Conclusion 66 For the foregoing reasons, none of the grounds of appeal have been made out. The appeal should be dismissed with costs. I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Farrell.

Federal Circuit Court of Australia Rules 2001(Cth)

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