FEDERAL COURT OF AUSTRALIA

DWP17 v Minister for Immigration and Border Protection [2019] FCA 160

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the costs of the first respondent, of and incidental to the appeal, to be taxed if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Revised From Transcript)

LOGAN J:

1    The appellant is a citizen of Iran. She originally entered Australia pursuant to a student visa in February 2014. After her arrival in Australia, she came to apply under the Migration Act 1958 (Cth) (Act) for that class of visa known as a Protection Visa (visa). On 16 March 2016, a delegate of the Minister for Immigration and Border Protection (Minister) refused that claim as well as complementary protection. The appellant then sought the review of that decision by the Administrative Appeals Tribunal (Tribunal). On 11 August 2017, for reasons given in writing, the Tribunal affirmed the Minister’s delegate’s decision not to grant the appellant a Protection visa.

2    The Tribunal’s decision was then the subject of an application for judicial review. On 27 July 2018, the Federal Circuit Court dismissed with costs that judicial review application. The appellant has now appealed to this Court against that order of dismissal.

3    Of the grounds specified in the notice of appeal, only two are pressed. They are grounds 2 and 3, namely:

2.    Further or in the alternative, his Honour erred in not finding, and ought to have found, that the Tribunal failed to give proper genuine and realistic consideration to the appellant’s claim to have been the subject of an arranged marriage.

3.    Further or in the alternative to 1 and 2, his Honour erred in finding at [31] that the delegate’s decision put the appellant on notice of the issue of whether her Christian-related activities in Australia would come to the attention of the Iranian authorities and ought to have found that the issue was one in respect of which the Tribunal was required by section 425 of the Act, but failed, to invite the appellant to give evidence and make submissions.

As a general observation, in respect of each ground, there was no difference between the parties as to questions of governing principle as derived from the authorities. Rather, the controversy in respect of each ground was whether in the circumstances of the present case those principles had been violated in the way alleged in the respective grounds of appeal.

Ground 3

4    It is convenient first to address ground 3. Were the Tribunal to have failed to afford the appellant a hearing as required by s 425 of the Act, it would have committed jurisdictional error and the conclusion that no such violation had occurred reached in the court below to the contrary would be erroneous. That conclusion is to be found at [31] wherein the learned primary judge stated:

31.    The delegate’s reasons, as referred to above, made a finding that the authorities would have no reason to suspect, either now or in the future, that the applicant had a transitory interest in Christianity in Australia. The applicant was on notice in respect to that issue and, whilst the delegate’s reasoning may have been different in respect of the applicant’s conduct engaged in in Australia being disregarded under the Refugee Convention, that does not diminish the force of the adverse finding referred to by the delegate concerning the interest of the Iranian authorities in the applicant in respect of activities in Australia.

5    As to principle, one need look no further than SZBEL v Minister for Immigration and Ethnic Affairs (2006) 228 CLR 152 (SZBEL). There is an extensive discussion of the subject under the general rubric of “procedural fairness” in the joint judgment, commencing at [25]. Whilst all of what is there stated is pertinent, the following at [33] to [35] is especially so in this case:

33.    The Act defines the nature of the opportunity to be heard that is to be given to an applicant for review by the Tribunal.  The applicant is to be invited “to give evidence and present arguments relating to the issues arising in relation to the decision under review”.  The reference to “the issues arising in relation to the decision under review” is important.

34.    Those issues will not be sufficiently identified in every case by describing them simply as whether the applicant is entitled to a protection visa.  The statutory language “arising in relation to the decision under review” is more particular.  The issues arising in relation to a decision under review are to be identified having regard not only to the fact that the Tribunal may exercise all the powers and discretions conferred by the Act on the original decision-maker (here, the Minister's delegate), but also to the fact that the Tribunal is to review that particular decision, for which the decision-maker will have given reasons.

35.    The Tribunal is not confined to whatever may have been the issues that the delegate considered.  The issues that arise in relation to the decision are to be identified by the Tribunal.  But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”.  That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision.  And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.

[References omitted – emphasis in original]

6    Before turning to the “usual” starting point, namely the reasons of the delegate, it is necessary to give some background to the basis of the claim made by the appellant for the visa.

7    As originally specified, that claim was summarised by the Tribunal in this way:

28.    The applicant claims that she left Iran because she wanted to continue her education and to study her favourite course in order to get a suitable job in the future.

29.    The applicant claims that she has converted to Christianity.

30.    The applicant claims that if she returns to Iran she will be killed by agents of the Iranian Government.

31.    The applicant claims that she especially fears her uncle (from her father’s side), who is head of the Basij in Shiraz because he has found out that she has converted to Christianity. He has threatened the applicant that he will report her and her family to the authorities if she returns to Iran. She was told about her uncle’s knowledge of her new faith by her sister, who resides in Shiraz.

8    After the delegate came to reject her visa application, the appellant added an additional dimension to her claims for a visa arising from an asserted arranged marriage. The arranged marriage was one said to have been arranged by her uncle in relation to his son.

9    As to the claim as originally formulated, the delegate found:

Finding

I find that the applicant has engaged in conduct in Australia for the purpose of strengthening her claim to be a refugee within the meaning of section 5H of the Act, specifically her interaction and involvement with a Christian Church in Australia and her undergoing a baptism ceremony. Therefore, pursuant to subsection 5J(6), I have disregarded this conduct in determining whether the applicant has a well-founded fear of persecution.

As I have disregarded the applicant’s conduct in Australia in relation to her conversion and adherence to Christianity, and I have found that the applicant is not a genuine or committed Christian, there is no need to consider the other criteria as to whether the applicant meets the definition to be a refugee.

Having so done, the delegate also found, in the context of complementary protection, that the appellant’s claimed conversion to Christianity had been opportunistic and transitory. In relation to the appellant’s claimed conversion to Christianity and its consequence, the delegate found:

As per my finding that the applicant is not a genuine adherent of Christianity; I also find that the Iranian authorities would have no reason to suspect, either now or in the future, that the applicant had a transitory interest in Christianity in Australia.

10    The Tribunal did not, as the delegate had done, apply s 5J (6) of the Act. Nonetheless, the Tribunal did not accept that the appellant had converted to Christianity (reasons [100] – [101]). Having so done, and by reference to particular country information, the Tribunal addressed what might be the consequence for the appellant as a non-genuine Christian of returning to Iran. The relevant passage is to be found at [108] – [109] of the Tribunal’s reasons:

108.    Based upon this country information, and her own past behaviour in Iran, specifically that she attended church services in Iran either 4 or 10 times with her mother, did not participate in Bible study classes, did not speak to others (except immediate family) about Christianity in Iran, did not evangelise in Iran, did not personally seek to convert others in Iran, and her behaviour in Australia and has told the Tribunal that she would evangelise or proselytise if she was to return to Iran, notwithstanding that she has never done so previously in Iran or Australia (the closest being that she is working up to talking to someone about it), the Tribunal finds that the applicant does not face a real chance of serious harm or a real risk of significant harm for her practice of Christian-like activities in Australia were she to return to Iran. The Tribunal does not accept the applicant’s contention that she will be an apostate because she wants to share the miracles of Jesus in her life, because she has not done so yet, even in Australia where Christians do not fear persecution for expressing their faith in their church or outside their church. The Tribunal believes that the applicant most likely made a very moving speech to her congregation on the occasion of her baptism and acceptance into the church, but as the Tribunal discussed with the applicant, she was preaching to the already converted.

109.    Further, on the basis of the available information, the Tribunal is not satisfied that if the applicant were to return to Iran, the Iranian authorities would know that she had engaged in Christian related activities, or that she has acquired a profile as a result of those activities which would be of any interest to the Iranian authorities.

11    It was said by the appellant that [109] evidenced a failure to offer a hearing in accordance with the requirements of s 425 of the Act, because the particular consequence on return adverted to in particular at [109] had not been raised with the appellant by the Tribunal. But when one goes back to the usual starting point identified in SZBEL, and in particular that part of the delegate’s reasons wherein the consequence on a return for a non-genuine Christian who had engaged in particular activities in Australia was set out, it was, in my view, always an issue in respect of which the appellant had notice in relation to the hearing offered to her by the Tribunal. In other words, there was always in prospect what one might term a worst-case scenario for the appellant, entailing non-acceptance of the genuineness of her Christianity and regard to the activities in which she had engaged in Australia in relation to the Christian faith and the consequence upon return to Iran for her. It is just that the appellant, who had the benefit of representation by a migration agent in the proceedings before the Tribunal, chose to address a return scenario which was predicated upon acceptance of each of her claims including, materially for ground 3, the genuineness of her conversion to the Christian faith.

12    What follows from the foregoing is that I do not see this as a case which entails any error of a kind identified in SZBEL. To the contrary, it is a case which exemplifies the importance, in terms of issues, of the reasons of a delegate whose decision is under review.

13    None of this, of course, is to hold that the issues before the Tribunal must be symmetrical with those before the delegate. Such a conclusion would not just violate the High Court’s particular statement in SZBEL. It would be antithetical to the more general nature of Tribunal review which is that of reviewing the decision not the reasons for the decision of an administrator whose decision is subject to review by the Tribunal: see Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; 24 ALR 577.

Ground 2

14    As to ground 2, the learned primary judge observed of the like judicial ground:

28.    The substance of the Tribunal’s reasoning in relation to rejecting the applicant’s claim based on arranged marriage supports the Court’s findings that the Tribunal did actively and meaningfully engage with the submissions advanced in relation to the applicant’s claim of fear of harm based on the arranged marriage. Mr Chia submitted that the Tribunal had an obligation to give a proper, genuine and realistic consideration to the applicant’s claims in relation to the arranged marriage and that there is no finding to support the conclusion that the Tribunal did not accept the applicant’s claim that she will be the subject of an arranged marriage.

29.    The Tribunal’s reasons are not to be read with a keen eye to error. The Tribunal’s findings in paragraph 134 that it did not accept the applicant’s claim that she will be the subject of an arranged marriage to her cousin is clearly an adverse finding by the Tribunal that it did not accept, for the reasons given, that there had been an arranged marriage with the cousin. The Tribunal’s reasons expressly refer to the problems with the applicant’s credibility in respect of that claim and the evidence advanced in that regard. The Tribunal, on a fair reading of the reasons, did not confine itself to the issue of the explanation under s 423A of the Act. No jurisdictional error as alleged in ground 2 is made out.

15    As to principle, and thanks to the diligence of counsel, I was taken to a very recent judgment of the Full Court, Singh v Minister for Home Affairs [2019] FCAFC 3 wherein, at [30] – [38], where there is a most helpful summary of pertinent authority:

30.    If a statute requires a decision-maker to consider a matter, the decision-maker must give that matter ‘proper, genuine and realistic consideration’; that is, the decision-maker must engage in an ‘active intellectual process’ directed at the matter: Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 at [45], per Griffiths, White and Bromwich JJ.

31.    A statute might require a decision-maker to consider a matter by:

   (1)    expressly stating that the decision-maker must consider the matter; or

(2)    necessary implication because the consideration is a mandatory one having regard to the subject matter, scope and purpose of the legislation: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at39-40.

32.    Carrascalao concerned the cancellation by the Minister of the visas of Mr Carrascalao and Mr Taulahi under s 501(3) of the Migration Act 1958 (Cth). Mr Carrascalao and Mr Taulahi sought judicial review of those decisions in the Federal Court. The matter was heard, in this Court’s original jurisdiction, by three Justices.

33.    The Minister did not contest that he was under a general legal obligation to consider the merits of cases before cancelling visas under s 501(3).  The Full Court stated at [46]:

… An express statutory obligation on a decision-maker to consider (or have regard to) something may well provide a “more precisely defined duty”, as Black CJ observed in Tickner v Chapman.  In our view, however, the ordinary meaning of the word “consider” in this judicial review context requires the Minister to engage in an “active intellectual process” in assessing the merits of a case when contemplating the possible exercise of the power under s 501(3).

34.    The principle is directed to the question whether the jurisdiction reposed in the decision-maker is in fact exercised and exercised in a way which is authorised by the statute.  If the decision-maker does not actively consider a mandatory consideration, the decision-maker has not exercised the jurisdiction the statute contemplated the decision-maker would exercise.  Likewise, a Tribunal charged with “review” may commit jurisdictional error in failing to exercise the jurisdiction it was contemplated it would exercise, if – for example – it does not engage in an active intellectual process or give proper, genuine and realistic consideration to:

•    a “substantial, clearly articulated argument relying upon established facts” – see: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [24] per Gummow and Callinan JJ, with whom Hayne J agreed;

•    a claim “raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review” – see: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [63] per Black CJ and French and Selway JJ; or

•    a matter “that is an essential integer to an applicant’s claim or that would be dispositive of the review” – see: ETA067 v The Republic of Nauru (2018) 360 ALR 228 at [14] per Bell, Keane and Gordon JJ.

35.    However, it is important to recognise that the ultimate concern is with the identification of jurisdictional error: the Tribunal not performing the function entrusted to it or not performing it in an authorised way.  The Full Court in Carrascalao at [32] cautioned against allowing this ground for judicial review to slide into merits review (emphasis in original):

The Court is mindful of the necessity to avoid straying into a review of the merits of the Minister’s decisions (see the frequently cited statements of Brennan J in Attorney-General (NSW) v Quin [1990] HCA 21; 170 CLR 1 at 35-37). The Court acknowledges that an expression such as “proper, genuine and realistic consideration” can, if taken out of context, encourage a “slide” into an impermissible merits review (see the observations of the High Court in Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; 243 CLR 164 (SZJSS) at [30] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ, who referred with apparent approval to Basten JA’s comments on this matter in Swift v SAS Trustee Corporation [2010] NSWCA 182 at [45]).

36.    The principle does not require the decision-maker to refer in the reasons to every piece of evidence and every contention made: Carrascalao at [45]; ETA067at [13]. However, if a critical piece of evidence or a particular issue is not referred to, that fact might be one from which an inference can appropriately be drawn that the decision-maker did not consider it. That, in turn, may be relevant to whether the decision-maker engaged actively with the matter.

37.    In determining whether the decision-maker had an active intellectual engagement, the following matters are relevant:

(1)    First, the degree of consideration which is necessary for the jurisdiction to have been exercised, and exercised in a manner which is authorised, is affected by the centrality of the matter, which it is said was not engaged with, to the issues and the prominence the matter assumed.

(2)    Secondly, in examining the reasons of the decision-maker to determine whether there was a lack of intellectual engagement:

(a)    the reasons should not be scrutinised “minutely and finely with an eye keenly attuned to the perception of error”: Carrascalao at [45], quoting Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [30];

(b)    it is necessary to read the reasons in light of the whole case as it was before the Tribunal, which might have involved more issues than are raised, and more evidence than is, before courts on judicial review and subsequent appeal.  The failure to mention a particular paragraph of a particular piece of evidence should be analysed by reference to the whole of the material before the Tribunal and its prominence assessed by reference to all of the issues and the way in which the matter was conducted in the Tribunal; and

(c)    a conclusion that the decision-maker has not engaged in an active intellectual process “will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicants carry the onus of proof”: Carrascalao at [48].

38.    In Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 at [1], Gleeson CJ made the following observations about the recasting or narrowing of focus that often occurs in an applicant’s case as it proceeds through the various stages of decision-making constituting the system of judicial review of administrative action. While these observations concerned a refugee visa application, we consider they apply with equal force to a visa application of the present kind:

The system of judicial review of administrative action, as it operates in relation to visa applications by people seeking acceptance as refugees, often means that, by the time a case reaches this Court, it is at the fifth level of decision-making. It may be, as in this case, that there have been adverse decisions at the first and second levels (the Minister’s delegate and the Refugee Review Tribunal (“the Tribunal”)) and that the Tribunal’s decision has been upheld at the third (Federal Court of Australia) and fourth (Full Court of the Federal Court) levels. It may not be surprising that, at the fifth level, an appellant will look for a new way of putting a case that has already failed on four occasions. The case put to this Court may bear little relationship to what was previously advanced, considered, and rejected. There is a risk that criticism of the reasoning of a decision-maker at an earlier stage might overlook the forensic context in which such reasoning was expressed; a context that may have changed almost beyond recognition. Proceedings before the Tribunal are not adversarial; and issues are not defined by pleadings, or any analogous process. Even so, this Court has insisted that, on judicial review, a decision of the Tribunal must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant’s lawyers, at some later stage in the process ...

16    The Tribunal’s assessment of the claims made by the stage of review by the appellant is lengthy and detailed; see [88] – [134]. Prolixity in reasoning or, for that matter, in a judgment is not necessarily indicative of meaningful engagement with all of the issues which arise either in relation to administrative review, or as the case may be, an exercise of judicial power.

17    The Tribunal’s assessment of the claims was not challenged in relation to those originally made; in other words, those relating to the appellant’s conversion to Christianity, but rather in relation to the later emerging claim derived from the assertion of an arranged marriage and adverse consequences that would follow on return as a result of the appellant’s uncle’s particular position with Iranian authorities. The culmination is to be found at [134]:

134.    The Tribunal is not satisfied as to the explanation offered by the making of the recent claim, and finds that the claim has been made to strengthen the applicant’s claims for protection. The Tribunal draws an inference quite unfavourable to both the credibility of the claim and the evidence in its support. The Tribunal does not accept the applicant’s claim that she will be the subject of an arranged marriage to her cousin.

18    Axiomatically, the Tribunal’s reasons are not to be read narrowly and with an eye for error but rather fairly and as a whole. It is pertinent to cite two other paragraphs from the Tribunal’s reasons, namely, [44] and [47]:

44.    The Tribunal referred to the statutory declaration again. It noted a new claim that the applicant now claims that there has been an arranged marriage between her and her uncle’s son. The Tribunal referred to s423A and discussed with the applicant and the representative that where an applicant raises a claim that was not raised in the application before the primary decision was made, then in the absence of a reasonable explanation as to why the claim was not so raised, the Tribunal is to draw an inference unfavourable to the credibility of the claim

…

47.    The Tribunal asked the applicant’s brother to explain the consequences of resisting an arranged marriage. He said there would be trouble for his family. His uncle has power.

19    Read with [44] – which is a fair summary of an exchange in the course of the hearing, the transcript of which I was taken to in the course of submissions – [134] is, in my view, a conclusion by the Tribunal as to the applicability of s 423A. That section provides:

How Tribunal is to deal with new claims or evidence

(1)    This section applies if, in relation to an application for review of an RRT-reviewable decision (the primary decision) in relation to a protection visa, the applicant:

(a)    raises a claim that was not raised in the application before the primary decision was made; or

(b)    presents evidence in the application that was not presented in the application before the primary decision was made.

(2)    In making a decision on the application, the Tribunal is to draw an inference unfavourable to the credibility of the claim or evidence if the Tribunal is satisfied that the applicant does not have a reasonable explanation why the claim was not raised, or the evidence was not presented, before the primary decision was made.

20    It is, in my view, apparent enough from its reasons that the Tribunal was not satisfied that the appellant had a reasonable explanation about why the arranged marriage claim was not raised earlier. However, there is more to [134] than just that. It is also to be read as a rejection of the evidence which was tendered in support of the appellant’ arranged marriage claim. It is true, as the appellant submitted, that there is not, in terms, to be found at [134] on explicit rejection of the appellant’s brother’s evidence, but the reasons of the Tribunal disclose that the brother’s evidence was not ignored. In particular, [47], cited above, is a faithful summary of a particular part of the evidence given before the Tribunal by the appellant’s brother. Also to be found in the Tribunal’s reasons is another faithful summary of evidence given by the appellant’s brother, on this occasion evidence in relation to the appellant’s claimed conversion to Christianity; see [54] – [56].

21    Against this background, all that the Tribunal was doing, in my view, when one has regard to the paragraphs which preceded [134], was rejecting, on the basis of particular country information as to custom raised in the course of the hearing, the notion that the appellant had been kept in the dark about the existence of an arranged marriage: see [129] – [133].

22    The Tribunal’s reasons, in my view, evidence very particular, singular and meaningful engagement with the additional claim grounded in the alleged arranged marriage. The Tribunal was entitled to reach the conclusion found at [134]. What follows from the foregoing is that, though stated in rather more detail, I agree with each of the conclusions of the learned primary judge. These in turn reflect the submissions that were made on behalf of the Minister as to why the appeal should be dismissed.

23    The appeal must be dismissed.

Associate:

Dated:    13 March 2019