DBO19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs - [2021] FCA 1218 - FCA 2021 case summary — Zoe

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DBO19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCA 1218

Federal Court of Australia|2021-10-08|Before: Middleton J, Mr J, Anderson J

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At a glance

Source facts

Court

Federal Court of Australia

Decision date

2021-10-08

Before

Middleton J, Mr J, Anderson J

Source

Original judgment source is linked above.

Judgment (34 paragraphs)

[1]

The appeal be dismissed with costs Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

[2]

Introduction 1 This is an appeal against orders of the Federal Circuit Court of Australia (FCCA) dismissing an application for judicial review of a decision of the Immigration Assessment Authority (Authority). The decision of the Authority affirmed the earlier decision of a delegate (Delegate) of the First Respondent, being the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister) to refuse to grant the Appellant a protection visa.

[3]

Background 2 The salient background facts were not in dispute between the parties and were set out comprehensively in the Appellant's submissions. The background facts are as follows. 3 The Appellant is a citizen of Iran and was born on 28 June 1984. The Appellant applied for a Temporary Protection visa (subclass 785) on 7 July 2017 (visa application). 4 The Appellant's claims were initially set out in a statutory declaration dated 1 July 2017, which accompanied his visa application. 5 In his statutory declaration, the Appellant stated the following: (1) that soon after he attained adulthood in or around 2003, he rejected his Islamic faith, which was the faith of his parents; (2) his brother also rejected his Islamic faith; (3) a neighbour of his family in Tehran, who was an army sergeant and member of the Sepah, discovered the brothers' rejection of Islam and this led to the Iranian Revolutionary Guard Corps imprisoning both the Appellant and his brother for one year in 2007; (4) the Appellant's rejection of Islamic laws and beliefs led to several other adverse interactions with Iranian authorities, these included: (a) being lashed and detained by the Basij after it was discovered that he had consumed alcohol at home in 2006, which caused the Appellant physical and psychological injuries; (b) being arrested and detained for two days in 2009 for participating in anti-government "Green Revolution" protests; and (c) being stopped at a checkpoint in Tehran, questioned about his wife's dress and makeup, beaten by eight members of the Basij, which caused the Appellant to suffer injuries which required surgery. This occurred in 2010. 6 In addition to the statutory declaration, the Appellant subsequently provided a number of other documents in support of his application which included: (1) a certificate that confirmed his baptism and conversion to Christianity dated 18 March 2019, and a card with the contact details of the pastor who had performed the baptism; (2) a character reference from a friend of the Appellant, referring to his being imprisoned for drug offending and to his good character which was provided to the Authority on 23 April 2019; (3) a submission from Refugee Legal dated 13 June 2019; (4) a further submission addressing the application of s 473DD of the Migration Act 1958 (Cth) (Act) dated 13 June 2019; and (5) a statement from the Appellant dated 13 June 2019. (post-referral materials). 7 During his interview with the Delegate, the Appellant advanced the further claim that he had converted to Christianity after becoming interested in the Christian faith while serving a sentence of imprisonment in Australia. The Appellant also made clear that, in addition to the adverse interactions with the Iranian authorities which he had experienced, as outlined above, he had been questioned and detained by Iranian officials, including the Basij, on a number of other occasions. 8 On 21 May 2019, after considering the Appellant's application, the Delegate refused to grant the Appellant a protection visa. 9 On 8 July 2019, the Authority affirmed the Delegate's decision (Decision). 10 On 22 April 2021, the FCCA dismissed the Appellant's application for judicial review of the Authority's decision (Reasons). 11 The Appellant now seeks judicial review of the Reasons, and makes a number of submissions in respect of his claim. The Appellant's submissions are outlined below.

[5]

Alleged Error in Application of s 473DD (Grounds 2, 3, 4 and 6) 14 The Appellant submits that the High Court of Australia (High Court) clarified the scope and application of s 473DD of the Act in AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; (2020) 94 ALJR 1007 (AUS17) where the plurality, Kiefel CJ, Gageler, Keane and Gordon JJ, observed at [10]-[12]: Section 473DD would be at war with itself, and the purpose of s 473DD(b)(ii) would be thwarted, if the circumstance that there was new information from a referred applicant meeting the description in either s 473DD(b)(i) or s 473DD(b)(ii) were able to be ignored by the Authority in assessing the existence of exceptional circumstances justifying consideration of that new information in order to meet the criterion specified in s 473DD(a). Logic and policy therefore demand that the Authority assess such new information as it might obtain from the referred applicant first against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and only then against the criterion specified in s 473DD(a). If neither of the criteria specified in s 473DD(b)(i) and s 473DD(b)(ii) is met, the Authority is prohibited from taking the new information into account in making its decision on the review. Further assessment of the new information against the criterion specified in s 473DD(a) is redundant. If either the criterion specified in s 473DD(b)(i) or the criterion specified in s 473DD(b)(ii) is met, that is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a). If both the criterion specified in s 473DD(b)(i) and the criterion specified in s 473DD(b)(ii) are met, that too is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a) and which must heighten the prospect of that criterion being met. The result, as has been recognised by the Federal Court in numerous other cases, is that the Authority does not perform the procedural duty imposed on it by s 473DD in its conduct of a review if it determines in the purported application of the criterion in s 473DD(a) that exceptional circumstances justifying consideration of new information obtained from the referred applicant do not exist without first assessing that information against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and then taking the outcome of that assessment into account in its assessment against the criterion specified in s 473DD(a). The nature of the non-performance of the procedural duty in such a case is not inaccurately characterised as a failure to take account of a mandatory relevant consideration in the purported application of the criterion in s 473DD(a). 15 The Appellant submits that grounds 2, 3, 4 and 6 of this appeal arise from the Authority's misapplication of s 473DD of the Act. Those grounds of appeal relate to [9] and [10] of the Authority's reasons. These reasons are as follows: The applicant told the Department that he was of Turkish ethnicity and that he had obtained a fake military exemption card in Iran. The applicant now provides new information in relation to this. He will be harmed because of his Turkish ethnicity. He will be subjected to a large monetary penalty and jailed and forced to practise Islam when completing his national service. The applicant also briefly mentioned that two people returning from Armenia were arrested at the airport and imprisoned on charges of Christianity. Other than stating he was of Turkish ethnicity the applicant did not mention any claimed incidents of harm because he was Turkish or detail any fears of harm specifically because of his ethnicity. The new information is also brief and unsupported. I am not satisfied exceptional circumstances exist to justify its consideration. The applicant has provided new minor additional detail in relation to evidence previously provided to the Department about his wife's ill health and his claimed 2007 detention including that his wife has attempted to commit suicide many times and that he was warned by the Islamic Revolutionary Guard Corps after his release in 2007. This is new information. In the PV interview the applicant's claimed detention in 2007 was squarely at issue and I am not satisfied the information could not have been provided to the delegate before her decision was made. The new information is brief. It is also not apparent to me how these details are material to the applicant's central claims for protection. I am not satisfied exceptional circumstances exist to justify consideration of the information. 16 The Appellant submits that the Minister effectively conceded in the Court below that the above paragraphs of the Authority's reasons reveal that the Authority did not apply s 473DD in the manner articulated by the plurality in AUS17. 17 I will outline each of the contentions made by the Appellant with respect to the Authority's application of s 473DD in light of the High Court's findings in AUS17 below.

[6]

Ground 2 18 Ground 2 relies upon the way in which the Authority dealt with the further information that was provided by the Appellant with respect to his Turkish ethnicity. With respect to this ground, the Appellant submits that the Authority effectively concluded that s 473DD(a) of the Act was not satisfied because the harm that the Appellant alleged could befall him, due to his Turkish ethnicity is, in its view, "brief and unsupported"'. In the Appellant's submission, the Authority did not undertake an assessment of s 473DD(b). That is so, despite the fact that the Appellant had consistently claimed to be of Turkish ethnicity and had previously travelled to Turkey, indicating that the Turkish ethnicity claim was "credible personal information" within the scope of s 473DD(b)(ii); and despite the fact that the reference to his Turkish ethnicity in the post-referral materials was responsive to the Delegate's failure to consider this aspect of his claims, suggesting the information could not have been provided before the Delegate's decision, per s 473DD(b)(i). In these circumstances, the Appellant submits that the Authority's failure to properly consider these matters, and its exceptionally vague and confined analysis, demonstrates jurisdictional error in respect of the application of s 473DD(a). Ground 3 19 Ground 3 relies upon the way in which the Authority dealt with the further information that was provided by the Appellant with respect to his fake military exemption card. With respect to appeal ground 3, the Appellant submits the Authority's reasons are confined to the finding that the new information was "brief and unsupported". In the Appellant's submission, that finding does not amount to a consideration of all relevant circumstances. The Appellant submits that the Authority has fallen into error in purporting to apply s 473DD(a) to the exemption card claim. That is so, in the Appellant's submission, despite the fact that the Appellant's claims in relation to his fake military exemption card had been advanced before the Delegate, and the new information provided in the post-referral materials is advanced by way of the Appellant's "strong disagreement" with the Delegate's finding that he would not suffer harm if he were required to undertake military service in Iran. In the Appellant's submission, the claims are prima facie credible and responsive to the Delegate's claims, under ss 473DD(b)(i) and (ii). Ground 4 20 Ground 4 relies upon the way in which the Authority dealt with the further information that was provided by the Appellant with respect to his wife's mental health. With respect to appeal ground 4, the Appellant submits that the Authority concludes that s 473DD(a) is not satisfied with respect to this information; and that its only stated reasons for reaching this conclusion are that the information is "brief" and "[i]t is also not apparent to me how these details are material to the applicant's central claims". The Appellant submits that there is no consideration by the Authority of matters that are the subject of s 473DD(b), despite the fact that the Appellant raised his wife's mental health before the Delegate and is seeking to reiterate this claim, such that it is prima facie credible and responsive to the approach taken by the Delegate. Ground 6 21 Ground 6 relies upon the way in which the Authority dealt with the further information that was provided by the Appellant with respect to the Islamic Revolutionary Guard. With respect to appeal ground 6, the Appellant submits that there is no assessment of whether the information is credible personal information which, had it been known, may have affected the Delegate's assessment, per s 473DD(b)(ii). 22 In respect of each of the above grounds, the Appellant submits that the primary question for this Court is whether the Authority's failure to lawfully apply s 473DD to the Appellant's case was a material error. In the Appellant's submission, the errors were material. 23 The Appellant submits that the question for this Court is not "would the result have been different if s 473DD had been applied correctly?", but the considerably more confined "could the result have been different if s 473DD had been correctly applied?" In the Appellant's submission, such an approach is consistent with the authorities on the relevance of materiality to determining the intended effect of non-compliance with a statutory condition on a decision making power: Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at [31]. In the Appellant's submission, the threshold for materiality is more aptly described as whether there is a realistic possibility that the Authority's decision could have been different: see XMBQ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2134 at [12] (Davies J) citing Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at 445 [45]-[50] (Bell, Gageler and Keane JJ). That, in the Appellant's submission, is a distinctly different task from the type of probabilistic reasoning that a court or a tribunal engages in when determining whether statutory criteria are met. 24 The Appellant contends that the possibility of a different outcome in the present case is entirely realistic. The Appellant submits that, for the Minister to succeed in demonstrating that the errors were not material, the Minister needs to show that it would be realistically impossible for the Authority to have reached a different conclusion if it had applied s 473DD properly. The Appellant submits, that in the present case, such a position is untenable. 25 The Appellant submits, in addition, that had the Authority applied s 473DD(b)(i), it is eminently possible that the Authority could have reached the view that that provision was satisfied. That was so, in the Appellant's submission, because the new information was explicitly responsive to the approach taken by the Delegate. The new information challenged the Delegate's finding that the arrest and forced recruitment of the Appellant would not be harmful. It also elucidated the connection between this aspect of the Appellant's claims and the balance of his claims. The Appellant submits that on that basis alone, the Authority could have concluded that it could not have been provided to the Delegate. The Appellant submits that such a finding was open, and would not have been unreasonable or illogical. In the Appellant's submission, there is a realistic possibility that had the error not occurred, a different outcome could have been reached.

[8]

Ground 1 26 As to appeal ground 1, the Appellant submits that the Authority purported to assess the Turkish ethnicity claim against s 473DD of the Act, on the basis that it constituted "new information". That, the Appellant submits, was an error. The Appellant mentioned his Turkish ethnicity, for example, in the statutory declaration which accompanied his visa application. At the interview with the Delegate, the Appellant confirmed that he had been mistreated in Iran because of his Turkish ethnicity. It therefore, in the Appellant's submission, fell to the Authority to consider this aspect of the Appellant's claims; both on its own, and as an aspect of his profile. 27 In addition, the Appellant submits that there is a well-established distinction between "new information" and "submissions". The former category may include anything which adds to the "pool" of factual material before a decision-maker, as distinct from "submissions" which are directed to, or characterisations of that material: Minister for Immigration and Border Protection v CLV16 (2018) 260 FCR 482; CAQ17 v Minister for Immigration and Border Protection [2019] FCAFC 203 at [8] (CAQ17); Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217. 28 The Appellant contends that "submissions" do not fall into the category which is to be assessed against s 473DD of the Act. The Appellant's clarification in the post-referral materials, that his Turkish ethnicity formed part of his protection claim, was a "submission" directed to that aspect of his claim. It was not "new information", and the Authority erred by assessing it against s 473DD of the Act, and so failed to consider it. Ground 5 29 As to appeal ground 5, the Appellant submits that the Authority did not find that his wife's mental health plainly was relevant to his claims, in at least two respects. First, the Appellant's wife's mental health was put forward, both at the interview with the Delegate and in the post-referral materials, to explain the Appellant's difficulty obtaining evidence about his brother's imprisonment for anti-Islam offences. The Appellant submits that it is self-evident that evidence which relates to his wife's acute and ongoing mental health concerns is relevant to assessing whether that explanation is cogent. 30 The Appellant further submits that harm may be suffered by an applicant by virtue of harms suffered by a member of their family. The Appellant submits that his wife's mental health is relevant in assessing whether any of the consequences of his return to Iran will seriously or significantly harm his wife. In this respect, the Appellant submits that the Authority's inability to discern any potential relevance in evidence about the Appellant's wife's mental health demonstrates a constructive failure to consider this aspect of the Appellant's claims. Ground 7 31 In respect of appeal ground 7, the Appellant submits that the adverse interest shown towards him by the Iranian Revolutionary Guard, after his imprisonment in 2007, is relevant to his claim. The Appellant submits that the Authority's conclusion that the Iranian Revolutionary Guard's adverse interest in him is not relevant, demonstrates, in the Appellant's view, a failure to properly engage with this information. Ground 8 32 In respect of appeal ground 8, the Appellant submits that this ground arises from the Authority's finding that the Appellant would return to Iran voluntarily, and its assessment of his claims on that basis. The Appellant submits that Iranian DFAT country information (DFAT, "Country Information Report - Iran", 21 April 2016, and "DFAT Country Information Report Iran", 7 June 2018) (DFAT Country Information), which was before the Authority, made clear that Iran did not issue travel documents to involuntary returnees who had arrived in Australia by the time that the Appellant arrived. The Appellant submits that he made clear that he would not return to Iran voluntarily. The Appellant submits that in his initial statutory declaration he stated: "I cannot return to Iran. If I am forced to return, I will be jailed again for not following Islam". Subsequently, he stated: "[i]f I am forced to return to Iran, I am fearful that this past record of being arrested, would heighten my risk of being arrested again…". Notwithstanding this evidence, the Appellant submits that the Authority at [35] of its reasons, finds that the Appellant "has not said that he would not return to Iran voluntarily", and finds that, because "[v]oluntary returnees re-entering on their own passport or temporary travel documents… do not attract much interest from authorities". The Authority found that the Appellant would not face harm returning to Iran as an asylum seeker who spent six years in Australia. 33 The Appellant submits that there was no basis for the Authority to find, or to assume, that the Appellant would voluntarily return to Iran. The Appellant submits that because the Authority assumed, without an evidentiary basis, that the Appellant would return to Iran voluntarily, the Authority engaged in no analysis of this issue. The Appellant submits that the Authority erred by failing to consider the Appellant's claims as put, and failed to discharge its statutory task. Ground 9 34 As to appeal ground 9, this ground arises from the Authority's assessment of the Appellant's claims to have experienced adverse interest from the authorities in the past, and his fears of harm on the basis of his rejection of the Islamic faith. 35 The Appellant submits that the Authority had accepted that he was detained and lashed by the Basij for drinking alcohol in 2006, detained and beaten as a participant in the Green Revolution protests in 2009 and beaten in 2010 as a result of challenging Islamic codes. Notwithstanding this, the Appellant submits that at [33] of the Authority's reasons, the Authority concludes that the Appellant would not suffer harm as a result of his view of Islam. In the Appellant's submission, the Authority concludes that others in Iran with similar beliefs are able to avoid harm by "keep[ing] low profiles"; and that, in the Appellant's case, he "was a non-practising Muslim in Iran for some 10 years prior to his departure and there is no credible evidence before [the Authority] to indicate he was detained or punished by the authorities because of this". 36 The Appellant submits that this finding is inexplicable. The Appellant submits that he had demonstrated a lengthy history of being harmed by the authorities because of his anti-Islam beliefs, including being "detained" and "punished" by them, for flouting Islamic laws concerning public attire, the consumption of alcohol and the authority of Iran's theocratic regime. 37 In the Appellant's submission, it clearly fell to the Authority to consider whether, if he returned to Iran, the Appellant may continue to suffer such harms. 38 The Appellant submits that if the Authority's finding was underpinned by the presumption that the Appellant could avoid any further harm by acting discreetly, it fell to the Authority to consider whether the Appellant could reasonably be expected to modify his behaviour in this way, or whether this fell afoul of s 5J(3) of the Act. In the Appellant's submission, the Authority fell into error by failing to consider this. Ground 10 39 Ground 10 of this appeal arises from the Authority's consideration of the harms the Appellant may suffer because of his rejection of Islam and/or the steps he had taken to explore and express his faith in Christianity. 40 The Appellant submits that the Authority accepted that the Appellant had rejected Islam, and though the Authority did not accept that his conversion to Christianity was genuine, it accepted that he had been baptised, shared Christian posts on social media and engaged in other Christian activities in Australia. The Appellant submits that in finding that these matters did not give rise to a real chance or risk of serious or significant harm to the Appellant, the Authority's reasons are concerned with the threat from Iranian authorities. The Appellant submits that the Authority failed to consider the threat of harm from the Appellant's family or from other members of Iranian society, which were express features of his claim. 41 The Appellant submits that the Authority also failed to consider whether the actions taken by the Appellant regarding Christianity, or the Appellant's stance on Islam more broadly, might bring him to the adverse attention of others in Iranian society who may harm him. In the Appellant's submission, if the Authority assumed that the Appellant would be discreet about these matters in Iran so as to avoid harm, it needed, and failed, to consider whether requiring him to behave discreetly fell afoul of s 5J(3) of the Act. The Appellant submits that by failing to consider these matters, the Authority fell into error.

[10]

Alleged Error in Application of s 473DD (Grounds 2, 3, 4 and 6) 43 The Minister submits that it is now clear, following the High Court's decision in AUS17 that the proper application of s 473DD is as follows: (1) the Authority should assess new information against both ss 473DD(b)(i) and (ii) of the Act; (2) if the Authority is not satisfied that the new information satisfies ss 473DD(b)(i) or (ii), the Authority is prohibited from considering it, and there is no need for the Authority to assess it under s 473DD(a) of the Act; and (3) if the Authority is satisfied that the new information satisfies ss 473DD(b)(i) or (ii), that is a circumstance that must be factored into the Authority's assessment under s 473DD(a) of the Act. 44 The Minister submits that as to whether the Authority has considered the criteria in s 473DD(b)(i) and (ii) of the Act, it will be sufficient if the Court can be satisfied that "the substance of the criteria prescribed by s 473DD(b) has been considered": APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23 per Markovic J at [79]. 45 The Minister submits that an inference of consideration may be drawn especially where, as Kenny J explained in FMA17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 456 at [68], "the IAA's duty to give reasons under s 473EA does not require it to give reasons for the exercise or non-exercise of a procedural power, such as ss 473DC or 473DD". 46 The Minister submits that error in the application of s 473DD will not always lead to a material jurisdictional error which affects the decision: DQS19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 675 per Middleton J at [24] and [33]. In MZAPC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] HCA 17; 95 ALJR 441;390 ALR 590 the majority Kiefel CJ, Gageler, Keane and Gleeson JJ at [37] explained that :… the determination of materiality by a court [involves] "a question of counter-factual analysis to be determined by the court as a matter of objective possibility as an aspect of determining whether an identified failure to comply with a statutory condition has resulted in a decision that has in fact been made being a decision that is wanting statutory authorisation". The same point was made in different language by the Full Court of the Federal Court in BDY18 v Minister for Immigration and Border Protection, where it is stated that "[m]ateriality is concerned with the significance of the failure to conform to the statutory task entrusted to the decision-maker" and that "[t]he inquiry is backward looking and concerns what the decision-maker did in the particular case". (Citations omitted) 47 The Minister submits that there are many circumstances where a failure to apply s 473DD correctly may be immaterial. The Minister submits that it has long been established that a failure to consider information may be immaterial because the information at issue may be of such a character, and the reasons of the decision-maker may be such, that it is unrealistic to suppose that if the information had been considered it would have been decisive: AAZ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 407 per Allsop CJ at [57], [61] and [62].

[11]

Ground 2 48 The Minister submits as to the Appellant's Turkish ethnicity: (1) The Appellant had, in his visa application, stated he was of Turkish ethnicity. However, he did not claim to fear harm on this basis. (2) In the Appellant's representative's "legal submission" to the Authority, it was said, for the first time, that the Appellant feared that he would suffer harm in Iran on multiple bases including inter alia "[h]is actual/imputed political opinion in favour of the West and/or opposition to the Iranian authorities on account of … [h]is Turkish ethnicity". However, in the Appellant's own statement to the Authority, he did not say anything about his Turkish ethnicity. 49 In the Minister's submission, the "new information" relating to the Appellant's Turkish ethnicity was simply that he feared harm on this basis. The Minister submits that there was nothing else; in particular, there was no information given to the Authority (nor otherwise available to the Authority in the review material) suggesting that persons of Turkish ethnicity were exposed to a risk of serious or significant harm in Iran. The Minister points to the Authority's statement at [9]: "the applicant did not mention any claimed incidents of harm because he was Turkish or details any fears of harm because of his ethnicity"; "[t]he new information was brief and unsupported". 50 In those circumstances, the Minister submits, that the primary judge was correct to find that "these observations go to the question of whether it may have affected the consideration of the applicant's claims": Reasons [34]. Further, and in any event, the Minister submits that the primary judge was correct to hold that consideration of the (entirely unsubstantiated) new information that the Appellant feared harm on the basis of his ethnicity "could not have made a material difference to the outcome of the review": Reasons [35]. In the Minister's submission, it is simply unrealistic to suppose that, if the Authority had applied s 473DD correctly, the Authority would have considered this "brief and unsupported" claim to fear harm based on Turkish ethnicity and on that basis made a different decision on the review.

[14]

Ground 6 56 The Minister submits that, as to the Islamic Revolutionary Guard information: (1) The Appellant had, in his visa application, relevantly stated: "In about 2007, the Sepah took me from my home to the police station in Shapour where they threatened to kill me because I did not follow the Islamic faith. I was in jail for about one year. My eldest brother's wife had a connection in the Sepah and through this connection I was released from jail." (2) In his statement to the Authority, the Appellant complained that this claim was not dealt with by the Delegate. "As I stated in detail at the PV interview, I was detained for about a year, after my brother was imprisoned. Unlike my brother, there was not enough evidence to charge me on the religious charges. But after I was released from jail I was warned by the officials and the Islamic Revolutionary Guard Corps (IRGC) and the Police and I was extremely nervous and frightened." Then, notably, the Appellant said: "The delegate implied at the PV interview that she found this difficult to believe, given I did not disclose this at the entry interview, At the PV interview, I explained why I did not talk about it at the entry interview." 57 The Minister submits that the substance of the Appellant's claim based on his alleged detention in 2007 was not "new information": it was addressed in the Appellant's visa application, and then discussed at the interview with the Delegate, which was all part of the "review material". The Minister submits that it appears the only additional information was the Appellant's allegation that he had been "warned" after he had been released. The Authority characterised this as a "minor additional detail" and was not satisfied that it could not have been provided to the Delegate, and assessed that it was "brief" and "it apparent[ly] material to the appellant's central claims for protection". The Minister submits that the Authority ultimately did not accept that the claimed detention occurred based on independent reasons as to the credibility of the claim at [24] of its reasons. 58 In those circumstances, the Minister submits as the primary judge appeared to find at Reasons [40], that any error by the Authority in the application of s 473DD(b)(ii) was immaterial.

[19]

Ground 8 67 The Minister submits that in this case, the Authority was not satisfied that the Appellant would not be returned involuntarily. That is because the Authority relied on DFAT Country Information that Iran "has historically refused to accept involuntary returnees", although Iran had recently agreed to facilitate the return of Iranians who arrived in Australia after 19 March 2018 (which plainly did not include the Appellant, being someone who had been in Australia since 2013). That, in the Minister's submission, was sufficient to dispose of the Appellant's claim, insofar as it was based on a risk of harm of what might happen if he was involuntarily returned. 68 As to the Appellant's submission that entailed the prospect that the Appellant would arrive in Iran without any travel documents or not return at all unless and until policy changed, the Minister submits that these submissions must be rejected. 69 The Minister submits that the Authority found that, as the Appellant's passport had expired, if he entered Iran it would have to be "on a temporary travel document" at [35] of its reasons. Accordingly, the Authority's reasons preclude the possibility that the Appellant would return "without any travel documents". Insofar as the Appellant is suggesting that it was incumbent on the Authority to consider the possibility of indefinite detention in Australia, the Minister submits that this is misconceived. It was no part of the Authority's task to assess whether the Appellant might face hardship in Australia if he could not be removed from Australia. 70 The Minister submits that as for the possibility of voluntary return, it was open to the Authority to conclude that "[t]he applicant has not said he would not return voluntarily". The Appellant's statement that he "cannot return to Iran", and contemplation of what might happen if he was "forced to return", was made in support of his visa application. But these statements, in the Minister's submission, did not preclude the possibility that the Appellant might, if his visa application were to be refused, agree to leave Australia voluntarily rather than enduring indefinite immigration detention in Australia. The Minister submits that, in any event, there can be no jurisdictional error in the Authority electing to consider this possible scenario, even if it was unlikely to transpire.

[20]

Ground 9 71 The Appellant contends that the Authority erred by "overlooking" its own findings. 72 At [30] of its reasons, the Authority accepted that the Appellant: (1) was detained in 2006 for drinking alcohol; (2) was detained in 2009 on suspicion of involvement in a protest; and (3) was harassed because of non-compliance with Islamic codes and assaulted in 2010 in respect of one incident. 73 The Minister submits that these findings did not mean that the Appellant satisfied the criteria for a protection visa for the following reasons: (1) As to alcohol, the Authority, at [34] of its reasons, was not satisfied that the Appellant would drink on his return. (2) As to political protest, the Authority noted at [31] of its reasons, the "demographic and ideological change" in Iran since the Appellant's departure, and, in any event, the Appellant did not claim that he would engage in further protest. (3) As to the assault in 2010, this was triggered following a dispute with Basij at a check-point about his wife's clothing and make-up; the Authority noted at [26] of its reasons that the Appellant "did not leave Iran for some three years and has not mentioned any incident of harassment by the authorities of note in that period". The Authority accepted, at [33] of its reasons, that the Appellant may suffer "generalised harassment" from authorities in the future, but was not satisfied that this would amount to "serious harm". 74 The Minister submits that the Authority, at [33] of its reasons, dealt with a broader claim to fear on the basis of being a non-practising Muslim. It was in this context that the Authority recognised that the Appellant may be "harassed" by the Basij as he had in the past, but did not consider that that would amount to "serious harm". But the Authority did not accept that the Appellant had been "detained or punished" on this basis. Further, the Authority relied on more recent country information that suggested it led it not to be satisfied that the Appellant faced a real chance of serious harm simply for being a non-practising Muslim. None of this was inconsistent with its findings at [30] of its reasons. 75 The Minister submits that contrary to the Appellant's submissions, the Authority was not required to apply s 5J(3), as it did not find that the Appellant would face a real chance of persecution which he reasonably could avoid by modifying his behaviour. The Authority lawfully based its decision on what would happen if the Appellant returned to Iran (it did not need to base its decision on whether the Appellant could reasonably avoid harm by modifying his behaviour).

[24]

Ground 3 87 I agree with the findings of the primary judge, in that the "new information" provided by the Appellant with respect to his fake military service exemption which assisted him in leaving Iran unlawfully, was not material and would not have made a difference to the outcome of the Authority's findings. 88 The "new information", which has been identified by the Appellant, relates to the comments the Appellant made at [18] of his visa application statement, in which the Appellant stated that he would be likely to face: … a big financial penalty and jail, particularly given my personal profile. 89 The Appellant previously identified that he was in possession of a genuine military exemption card which had been issued by the Iranian government in 2006. This card was granted to the Appellant because he was caring for his elderly father. Furthermore, while the Appellant submits that the Authority's reasons at [9] are confined to the finding that the new information was "brief and unsupported", the Authority's reasons at [27], provides that: The Country information before me states that because military service in Iran is mandatory, Iranian men over 18 who are exempted from military service have exemption cards issued by the relevant authorities. Having elderly parents was one of the many reasons someone could be granted an exemption. The applicant's elderly parents continue to live in Iran. 90 Having regard to the Authority's reasons at [27], it is apparent that the Authority considered, in substance, the Appellant's claim, and having regard to this "new information", concluded that the Appellant had an exemption and this situation subsists. 91 It is clear that the primary judge, in considering the Authority's assessment of these reasons, accepted that the Authority was not satisfied that the "new information" as it was presented, would have had any impact on the Appellant's visa application, and was not material: Reasons [37]. 92 For the reasons set out above, I find that no jurisdictional error has occurred in relation to ground 3.

[25]

Ground 4 93 I agree with the findings of the primary judge, in that the "new information" provided by the Appellant with respect to his wife's mental health, was not material and would not have made a difference to the outcome of the Authority's findings. 94 The Appellant made no claims in relation to his wife's mental health in his visa application. It was only at a later point, when the Delegate inquired about documentary evidence in relation to his brother's imprisonment, that the Appellant provided the following: … he could not contact his parents because he has not spoken to them for a long time. The applicant stated he would have to contact his wife, but he is unable to do so, because she is sick. 95 The Appellant identified in his statement on 13 June 2019, that: As I mentioned at the PV interview, my wife is currently suffering from severe depression, stress, anxiety and insomnia. Since around 2015, she has attempted suicide and has been admitted to hospital many times, and I have been extremely worried about her. 96 The "new information" that the Appellant gave to the Authority in the above statement, was simply further details about his wife's mental health being that "she has attempted suicide and has been admitted to hospital many times". 97 It is clear that the Authority considered this "new information" at [10] of its reasons, and considered this to be a "minor additional detail". 98 While the Appellant submits that the Authority's only stated reasons for reaching its conclusion that s 473DD(a) is not satisfied, is that the information was "minor" and "brief" and that it was "not clear how these details were material to the applicant's central claims". In my view, it cannot be said that there is a realistic possibility that, even if the Authority erred by not going through the right gateway in the AUS17 sense, its ultimate decision would not have been different as this information is not material. 99 It is not open, in my view, to consider this new information to be material, I agree with the primary judge's conclusion that: "even if the IAA failed to comply with the requirements to consider both section 473DD(a) and (b), I am not satisfied that had the IAA not made such an error it could reasonably have led the IAA to a different conclusion, such that the error could be characterised as being material": Reasons [39]. 100 For the reasons set out above, I find that no jurisdictional error has occurred in relation to ground 4.

[26]

Ground 6 101 I agree with the findings of the primary judge, in that the "new information" provided by the Appellant with respect to the Appellant's detention in 2007 by the Iranian Revolutionary Guard, was not material and would not have made a difference to the outcome of the Authority's findings. 102 The Appellant submits that there is no assessment of whether the information is credible personal information which, had it been known, may have affected the Delegate's assessment, per s 473DD(b)(ii). 103 The Appellant identified at [29] of his statement that: I also note that the delegate did not mention in the Department decision the fact that I was detained for a year in 2007, and believe that she failed to consider this aspect of my claim. As I stated in detail at the PV interview, I was detained for about a year, after my brother was imprisoned. Unlike my brother, there was not enough evidence to charge me on the religious charges. But after I was released from jail I was warned by the officials and the Islamic Revolutionary Guard Corps (IRGC) and the Police and I was extremely nervous and frightened. 104 The Appellant's claim of being detained in 2007 cannot be characterised as "new information". This is because it was addressed in the Appellant's visa application, and was also discussed at the interview with the Delegate. The only part of the Appellant's claim which can be described as "new information", is the Appellant's claim that he had been "warned" by the Iranian Revolutionary Guard after he had been released from prison. The Authority correctly characterised this information as a "minor additional detail". 105 I do not consider the new information here, being that the Appellant was warned by the Iranian Revolutionary Guard following his release from detention, as supporting a conclusion that the Authority's decision would have been different, even if the Authority did not correctly assess this information pursuant to s 473DD in the AUS17 sense, as this information is simply not material. 106 I find that any error by the Authority in the application of s 473DD(b)(ii) was immaterial. 107 For the reasons set out above, I find that no jurisdictional error has occurred in relation to ground 6.

[28]

Ground 1 108 I do not find that the Authority erred in failing to consider the Appellant's claim with respect to his fear of harm on the basis of his Turkish ethnicity. The primary judge was correct to find that the Appellant had not, in his visa application, advanced any claim to fear harm based on his Turkish ethnicity, and nor did such a claim arise. 109 The Appellant submits that the Authority purported to assess his Turkish ethnicity claim against s 473DD on the basis that this was "new information" and that this was an error, because the Appellant had already identified this information in his statutory declaration to his visa application. The Appellant submits that his Turkish ethnicity claim should not be considered "new information", but rather as a legal submission, and therefore the Authority failed to consider this. 110 I find that the only information the Appellant provided with respect to his Turkish ethnicity in his statutory declaration is found at [1], where it states: I am a 33 year old citizen of Iran. I am of Turkish ethnicity and no faith. I fled my country in 2013 because I have no religion and I feared further persecution from the Iranian authorities for this reason. 111 Having regard to the headings "instances of harm" and "fears on return" in the Appellant's statutory declaration, it is clear that, when viewing the information provided by the Appellant under these sections, there is no claim of fear of harm that has been provided on the basis of his Turkish ethnicity. 112 Having regard to the information that the Appellant provided at the interview with the Delegate, it is clear that, when asked whether he has faced harm on the basis of his Turkish ethnicity, and what examples of harm he encountered, the Appellant answered: Lots of times, yes. Especially in Tehran because they are very racist and they actually made me upset all the time. … They were just like insulting us all the time, we are (indistinct) and we need to leave the country and you need to leave the city so they told us all the time [sic]. When we actually talked with people or like an organisation or something and we told them we are Turkish they were like, you don't understand anything, like, they insulted us all the time. 113 In answer to the question posed by the Delegate at the interview, as to whether the Appellant was ever physically harmed, the Appellant replied: No, not physical harm, no. 114 Notwithstanding this, the Appellant's submissions dated 19 June 2019, state: The Applicant fears that, if he is returned to Iran, he will suffer serious harm … on account of the following Refugees Convention grounds, taken separately or cumulatively … his Turkish ethnicity … 115 The Appellant's submissions further states: The Applicant's fear is genuine and well-founded. 116 Having regard to the Authority's reasons at [9], and when considering the evidence outlined above with respect to the Appellant's fear of harm on the basis of his Turkish ethnicity, it was reasonable, in my view, to identify that the Appellant had not mentioned any incidents of harm in relation to his Turkish ethnicity. 117 The Full Court, in CLV16 v Minister for Immigration and Border Protection [2018] FCAFC 80; 260 FCR 482 (CLV16) at [74], found that: The constraints imposed by s 473DD, and the power of the Authority to entertain a "submission" so confined, cannot he subverted by the simple expedient of a visa applicant's attempt to force upon the Authority for consideration "new information" under the guise of a submission. To the extent that a visa applicant seeks to do so and where the "new information" does not meet the requirements of s 473DD, however, the Authority can properly place to one side any such "new information" and not take it into account. The fact that difficulties may be encountered in a single document headed "submissions" which may contain a mixture of arguments as to the consequences flowing from established facts and interwoven new factual material confers no licence upon a visa applicant to force upon the Authority a "duty" to consider new material which does not meet the requirements of s 473DD or a licence upon the Authority to disregard the constraint imposed by s 473DD. Although such difficulties may be accepted, those difficulties cannot preclude a visa applicant from advancing his or her claims in such a manner as he or she sees fit. It remains for the Authority to sort the wheat from the chaff. 118 The Full Court's reasoning in CLV16 at [74], makes clear that the Authority has taken the correct approach in its assessment of this consideration, which is to appreciate in substance, the character or quality of the contents of that document, rather than merely the style in which it is presented. The Authority accurately identifies the Appellant's representation styled as a submission, being that the claim to fear serious harm based on Turkish ethnicity was not "new information" and this information was correctly considered. 119 The statement in the Appellant's submission to the Authority that the Appellant feared harm in Iran on bases including inter alia "… [h]is Turkish ethnicity", was clearly new information. It was new information that the Appellant had such a fear, as this claim had not previously arisen in the Appellant's statutory declaration or in his interview with the Delegate, as outlined above. It was appropriate for the Authority to discern this new information, notwithstanding it was embodied in a document styled as a submission. 120 I find that the primary judge was correct to find that the Appellant had not, in his visa application, advanced any claim to fear harm based on his Turkish ethnicity, and nor did such a claim arise. It was therefore, in line with the primary judge's Reasons at [52], appropriate for the Authority to treat a claim of harm on account of his Turkish ethnicity, made for the first time in the Appellant's submissions to the Authority as "new information" and assess it against s 473DD of the Act. 121 For the reasons set out above, I find that no jurisdictional error has occurred in relation to ground 1.

[31]

Ground 8 131 The Appellant submits that there was no basis for the Authority to find that the Appellant would return to Iran voluntarily, but rather the Authority assumed that this would occur incorrectly, and without properly considering the Appellant's claims. I reject this submission for the reasons that follow. 132 The Appellant seeks to derive support from the findings of Charlesworth J in CLS15 v Federal Circuit Court of Australia [2017] FCA 577 (CLS15). The applicant in that case stated that if he were to be returned to Iran, he would be stopped and questioned upon return as a failed asylum seeker, and his claim to have converted to Christianity would be revealed to the Iranian authorities. 133 In CLS15, Charlesworth J found at [60] that the Administrative Appeals Tribunal had not properly dealt with the consequence of the applicant in that case in being forcibly returned to Iran. Charlesworth J at [62] in CLS15, found: If the appellant could not presently be forcibly returned to Iran, a legal consequence of refusing the appellant a protection visa would be that he might be detained as a non-citizen and be held in immigration detention until the attitude of the Iranian authorities in relation to the issue of travel documents to involuntary returnees changed: that is, indefinitely. There is no reference in the Tribunal's reasons to that possible consequence. The Court should be slow to attribute to the Tribunal, by inference or implication, a finding that has or may have far reaching legal and practical consequences for the appellant. That is particularly so where the reasons for the Tribunal are not expressed in comprehensive terms. 134 Notwithstanding that the facts in the present case are different from CLS15, and noting that this Court is not bound by findings of fact made in other cases: see Sungravure Pty Ltd v Meani (1964) 110 CLR 24 at 37 (Windeyer J); Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; 234 CLR 330 at [56]-[58] (Gummow J), in DUP16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1063 (DUP16), Banks-Smith J at [82], found that the basis for the finding of jurisdictional error by Charlesworth J in CLS15 was that "[t]he Tribunal failed to address the protection claim before it". 135 In DUP16 at [83], Banks-Smith J distinguished the case before her Honour, from CLS15 on the following basis: In contrast, in this case it is clear that the Authority considered the claim to which the appellant's lawyers expressly drew attention in their Submission. The Authority referred to the Submission (para 4 of its reasons) and recited it (para 16 of its reasons). It considered and found that the appellant would not be returned to Iran involuntarily. It dealt with that claim unambiguously. 136 In my view, it is clear that the Authority was not satisfied that the Appellant would not be returned to Iran involuntarily. That is because the Authority relied on DFAT country information, which stated that Iran "has historically refused to accept involuntary returnees", although Iran had recently agreed to facilitate the return of Iranians who arrived in Australia after 19 March 2018 (which plainly did not include the Appellant, being someone who had been in Australia since 2013). That was sufficient, in the Authority's view, to dispose of the Appellant's claim, insofar as it was based on a risk of harm of what might happen if he was involuntarily returned. 137 The Appellant submits at [3.16] of its submissions: It fell to the Authority to assess what may happen to the Appellant in the reasonably foreseeable future on the assumption that he would not be issued with travel documents by the Iranian authorities under its present policy. That entailed consideration of the prospect that the Appellant would arrive in Iran without any travel documents, or would not return at all unless or until current policy changed. In the latter case, the Authority would have had to engage in a different, potentially longer-term assessment of what may happen to the Appellant in the reasonably foreseeable future. 138 I reject these submissions. The Authority found, at [35] of its reasons, that as the Appellant's passport had expired, if he entered Iran it would have to be "on a temporary travel document". Accordingly, the Authority's reasons preclude the possibility that the Appellant would return "without any travel documents". Insofar as the Appellant submits that it was incumbent on the Authority to consider the possibility of indefinite detention in Australia, that is misconceived. It was no part of the Authority's task to assess whether the Appellant might face hardship in Australia if he could not be removed from Australia. 139 As for the possibility of voluntary return, it was open to the Authority to conclude that "[t]he applicant has not said he would not return voluntarily". The Appellant's statement that he "cannot return to Iran", and contemplation of what might happen if he was "forced to return", was made in support of his protection visa application in his statutory declaration. But these statements did not preclude the possibility that the Appellant might agree to leave Australia voluntarily. There is no jurisdictional error in the Authority electing to consider this possible scenario, even if it was unlikely to transpire. 140 For the reasons set out above, I find that no jurisdictional error has occurred in relation to ground 8.

[32]

Ground 9 141 The Appellant submits that the Authority erred by failing to consider its own findings in relation to the Appellant's claims to have experienced adverse interest from Iranian authorities in the past and his fear of harm on the basis of his decision to not adhere to the Islamic faith. The Appellant submits that, because the Authority had accepted that the Appellant had previously been detained and faced other hardships from in the mid-to-late 2000s, the Authority concluded that the Appellant will not suffer harm as a result of his beliefs, as a non-practicing Muslim. I reject this submission for the reasons that follow. 142 I do not find that the Authority erred in its findings. 143 The Authority, at [30] of its reasons, accepted that the Appellant was detained in 2006 for drinking alcohol, detained in 2009 on suspicion of being involved in a protest and in 2010 was harassed because of non-compliance with Islamic codes in Iran, as well as being assaulted in one incident. However, these findings did not meet the requisite criteria in order to grant the Appellant a protection visa. The Authority, in concluding this, found that: (1) In relation to the alcohol incident, the Authority was not satisfied that the Appellant would drink on return, and the claim that he may relapse and be punished was considered to be "speculative": [34] of the Authority's reasons. (2) As to the Appellant's involvement in political protests, the Authority, at [31] of its reasons, stated that Iran had been undergoing a period of "demographic and ideological change" since the Appellant's departure from Iran in 2013, with a more moderate leadership, and a broader public "fighting for secularism, democracy and freedom". In any event, the Appellant did not claim that he would engage in further protests once returned to Iran. (3) With respect to the Appellant's assault in 2010, which was triggered by a dispute at a checkpoint with the Basij about his wife's clothing and make-up, the Authority accepted that the Appellant may suffer "generalised harassment" from authorities in the future, but was not satisfied that this would amount to "serious harm": [33] of the Authority's reasons. 144 The Authority relied on more recent country information that suggested it led it not to be satisfied that the Appellant faced a real chance of serious harm simply for being a non-practising Muslim. None of this was inconsistent with its findings at [30]. 145 The Authority was not required to apply s 5J(3) of the Act, as it did not find that the Appellant would face a real chance of persecution which he reasonably could avoid by modifying his behaviour. The Authority lawfully based its decision on what would happen if the Appellant returned to Iran (it did not need to base its decision on whether the Appellant could reasonably avoid harm by modifying his behaviour). 146 I find that the Authority correctly based its decision on what would happen if the Appellant returned to Iran, and the Authority did not need to base its decision on whether the Appellant could reasonably avoid harm by modifying his behaviour. 147 For the reasons set out above, I find that no jurisdictional error has occurred in relation to ground 9.

DBO19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

At a glance

Court

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Judgment (34 paragraphs)

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Legislation Cited (1)

Cases Cited (18)

Cited By (2)