FEDERAL COURT OF AUSTRALIA

CCK16 v Minister for Immigration, Citizenship and Multicultural Affairs [2018] FCA 1963

ORDERS

THE COURT ORDERS THAT:

1.    The name of the First Respondent be amended to “Minister for Immigration, Citizenship and Multicultural Affairs”.

2.    The appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

COLLIER J:

1    Before me is an appeal from the decision of the Federal Circuit Court in CCK16 v Minister for Immigration & Anor [2018] FCCA 1724. In the primary judgment, his Honour dismissed the appellant’s application for judicial review of a decision of the Administrative Appeal Tribunal (Tribunal) of 8 July 2016. This decision of the Tribunal followed a second administrative hearing of a claim of the appellant for a Protection (Class XA) visa (protection visa), and the Tribunal again affirmed an earlier decision of a delegate of the first respondent (Minister) to refuse the protection visa.

2    I note that the Minister has also filed a notice of contention to the effect that the judgment of the Federal Circuit Court should be affirmed on alternative grounds to those on which the primary Judge decided.

Background

3    The background facts are set out in the decision of the Tribunal, and are not controversial.

4    The appellant and his wife (Ms X) are Iranian citizens who arrived in Australia in 2012. The appellant claims to fear harm from Iranian authorities because, in summary, Ms X’s male cousin (Mr Y) is a member of an Iranian intelligence and security agency who “stalked” Ms X because Mr Y wished to marry her himself, and caused the appellant to be detained and harmed in Iran as, in essence, a romantic rival to Ms X’s affections. The “stalking” took the form of interfering with Ms X’s studies and her employment, causing the appellant to be imprisoned for several days, and subsequently causing the appellant to be taken for 19 days to an unknown prison where he suffered accusations of political crimes, ongoing interrogation and beatings.

5    The appellant claimed that after these events, he told Ms X that he could no longer see her and changed his phone number, but at some later point again contacted Ms X. The appellant claimed however that then, at the instigation of Mr Y, three men attacked the appellant and cut his throat, causing him to be hospitalised for 15 days and undergo surgery.

6    The appellant claimed that he told Ms X that if she loved him she would marry him and they could leave Iran. The couple married with their families’ blessing and left Iran two days later.

7    The appellant further claimed that he and Ms X could not prove their marriage because of the loss of their marriage certificate, and therefore they could be stoned to death if they returned to Iran for breaching sharia law and having a relationship outside of marriage.

8    The appellant and Ms X have an infant child who is not party to the proceedings.

9    The appellant also claimed in the Tribunal that:

    Because his marriage had been expunged from the relevant registry in Iran, any child born to him and Ms X in Australia would not be able to be registered in Iran and would be refused rights to Iranian citizenship, and further he and Ms X would not be able to live together in Iran because they would be perceived as adulterers.

    His parents had been forced to relocate several times in Tehran as a result of harassment by his wife’s cousin who procured others to do his “dirty work”. (It appeared however that threats to his parents had ceased after their first relocation.)

    Although the appellant and Ms X arrived in Australia on the same boat as the appellant’s brother and sister-in-law, they had not left Iran with them and arrived at Christmas Island together by complete coincidence. The appellant’s brother had not known about the marriage of the appellant and Ms X, and the appellant’s parents had not told him about his brother leaving Iran. He only realised his brother had left Iran when he arrived on Christmas Island and realised his brother had been on the same boat.

    The appellant had decided to follow the Baha’i faith and had been studying it for approximately 18 months. He came to the Tribunal hearing on 21 June 2016 with two letters attesting to his conversion to that faith.

    He had a tattoo and, when he was around 16 or 17 years old, his hair had been cut by the police against his will.

Tribunal’s decision

10    The Tribunal accepted that the appellant was an Iranian national. The Tribunal noted in its decision, however, that it had serious concerns about the credibility of the appellant’s claims and those of his wife.

11    The Tribunal set out in some detail the claims of the appellant concerning his harassment by Mr Y, including the threats he had received, his detention for several weeks in prison at the instigation of the cousin, and the physical injuries he suffered from assaults arranged by the cousin, and the appellant’s claimed conversion to the Baha’i faith.

12    It is helpful at this point to note the comments of the Tribunal concerning the appellant’s claims of conversion to the Baha’i faith:

83.    The Tribunal asked the applicant about his faith. He said he was Baha’i. He said he was still waiting for a card and he was studying with some friends who can testify that he is Baha’i. When asked if he had sent some paperwork to Israel, he said not necessarily. He said he was attending a gathering with nine people. There is a local, national and central level of the Baha’i faith. At each level there are nine people. His request to join the faith was approved locally and has been passed on to the national level.

84.    The Tribunal asked the applicant how often he goes to gatherings. He said once every 19 days, but they (converts who have not been approved) are not allowed into the administrative meetings, because they are not members as yet. He has also attended religious education classes.

85.    The Tribunal advised the applicant that it had spoken with [Mr D], at the National Baha’i Office in Sydney (on [telephone number omitted]) on Friday 17 June 2016 and that he advised the Tribunal the process of conversion is as follows:

When a person wants to convert, the local assembly follows them for “an extended period of time” (the expression is not defined, it may be months or years). After that the person signs a declaration card declaring that they believe and the local assembly signs the back of it.

86.    The applicant said that there was a declaration card which was with “the lady”, one of the authors of the two letters that he provided to the Tribunal on the day of the hearing, Shiva, and she forwarded the documents to the National Office.

87.    When asked if he had asked for an official confirmation letter from the local assembly, he said that they had rejected his request. That was why he had to get a letter from Shiva. He said that he could show the Tribunal that he made several phone calls in the last two days. He became frustrated when they told him that they knew he was a convert, but could not give him a letter. When asked to specify exactly when his request was declined, he said some 7-8 months ago and then he tried again 2-3 months ago for this hearing.

88.    The applicant said that he did not have a problem with the Tribunal contacting the Local Assembly or the National Assembly. He said that they would confirm that he has been attending gatherings for the last 18 months. But, he said, he could not force them to believe him.

89.    The Tribunal raised s. 91R of the Act. The Tribunal explained that it must disregard conduct in Australia in relation to the Baha’i faith unless satisfied that the applicant had engaged in the conduct otherwise than for the sole purpose of strengthening his claim to be a refugee. The applicant reiterated that he has turned away from Islam, his life is important to him and even talking to a Baha’i person in Iran is a crime. If he goes back to Iran, they believe that Baha’i’s are Israeli spies.

90.    On 22 June 2016 the Tribunal contacted [Mr D] again. He confirmed that in April 2016 the National Assembly had received a declaration from the applicant endorsed by a local Victorian assembly. It has not officially been approved by the National Assembly yet.

13    It is convenient to refer to the information set out at [90] of the Tribunal’s reasons in respect of the conversation between the Tribunal and Mr D of the National Baha’i Office on 22 June 2016 as “Information B”.

14    At [100] of its decision, the Tribunal observed as follows:

The Tribunal said that it will contact the Baha’i Local Assembly or the National Assembly to see if they will confirm that he has signed the paperwork. However, even if the Tribunal receives confirmation that he has signed a declaration, the National Assembly is the ultimate body that decides his genuineness. He said that he was thinking of bringing a witness along (one of the two people who wrote a letter for him), but he was not sure what to do.

15    The Tribunal observed that it found the appellant to be “a most unsatisfactory witness”, and for the following reasons concluded that he had fabricated his claims about problems he had had in Iran and that he was not a genuine convert to Baha’i. In particular:

    The Tribunal rejected as implausible the appellant’s claim that he would be considered an adulterer on return to Iran and stoned to death. The Tribunal did not accept that the appellant and Ms X had sent their original identity documents and marriage certificate back to Iran by mail as they claimed, noting their original claim on their arrival into Australia that the documents were to be sent to them by email from Iran. Given the concerns the Tribunal had about the credibility of the appellant, and given that the original documents were never shown to the Department of Immigration, the Tribunal, or (it appeared) the appellant’s representatives, the Tribunal was satisfied that the original documents were never sent from Iran, and the appellant’s original marriage certificate was still in Iran, in the possession of his family, and would be available to the appellant in the unlikely event that any official questioned the marital status of the appellant. The Tribunal was satisfied that no one in Iran would perceive the appellant to be an adulterer.

    The Tribunal noted that the appellant made no mention of his interest in the Baha’i faith at any time until the first (unfavourable) decision of the Refugee Review Tribunal (as the Tribunal then was) in February 2015. The Tribunal considered that the appellant was still hopeful at the time that he would be granted protection on the basis of his claims relating to Mr Y. The Tribunal found that the appellant had fabricated his claims concerning Baha’i and rejected them in their entirety.

    The Tribunal found that the appellant married Ms X without any difficulty, at a time of their choosing.

    The Tribunal found that the appellant was never physically harmed or otherwise harmed or threatened by the police or authorities.

    The Tribunal found that Mr Y did not exist, and therefore Mr Y never objected to the marriage of the appellant and Ms X or harassed or threatened Ms X.

    The Tribunal pointed to significant and important inconsistencies in the appellant’s evidence in relation to the alleged assaults on him.

    Although the appellant showed the Tribunal a scar on his throat and relied on this as proof of his claims, the Tribunal referred to the decision of the Federal Circuit Court in MZZLF v Minister for Immigration and Border Protection [2014] FCCA 1298 (particularly at [24]-[28]). In that case, Judge Riethmuller held that simply because an injury was consistent with the visa applicant’s claims, it did not follow that the visa applicant was telling the truth about it.

    The Tribunal noted the evidence of the appellant concerning his precipitate departure from Iran, but also observed that the appellant and his wife arrived in Australia from Indonesia on the same boat as the appellant’s only brother and sister-in-law who advised that they left Iran three weeks before the appellant. The appellant gave evidence in the Tribunal that he did not know about his brother leaving Iran or that they would be on the same boat, however the Tribunal did not find that evidence to be credible. The Tribunal considered it more likely that the appellant and his wife arranged their travel to Australia together with the appellant’s brother and sister-in-law, and that such travel arrangements were made significantly earlier than the appellant claimed. The Tribunal also noted that, around the time of the appellant’s arrival in Australia, an average of about 2,000 people were arriving by boat every month in about 30 vessels, and it was an unlikely coincidence that the appellant and his brother would have ended up in the same boat on the same night on their way to Australia without prior arrangement.

    The Tribunal found that the appellant’s claims concerning his parents were implausible, and that the appellant’s parents had had no problems with the authorities or anyone else.

    The Tribunal did not accept that the appellant’s head had been shaved at some point in the past. It accepted that he had a tattoo, but did not accept that it would cause him difficulty on return to Iran, particularly in light of DFAT advice that tattoos were becoming increasing common in Iran.

16    The Tribunal considered the prospect that the appellant could be stopped and questioned on his return to Iran, and his travel documentation confiscated. The Tribunal referred to country information which it discussed with the appellant, which indicated that in relation to more than 700 returned Iranian asylum seekers there had been no reports of any serious harm inflicted on them in Iran. At [145] the Tribunal found that neither questioning, nor taking of his travel document, separately or together, constituted serious harm capable of amounting to persecution.

17    In respect of the appellant’s claimed conversion to the Baha’i faith the Tribunal observed:

141.    The Tribunal finds that the sole reason why the applicant has engaged with the Baha’i faith was in order to strengthen his claims to be a refugee. Accordingly, the Tribunal must disregard the applicant’s conduct in Australia. In reaching this conclusion the Tribunal has taken into account the letters of support provided at the hearing. The Tribunal finds that the applicant’s involvement with the Baha’i faith, his conduct related to the Baha’i faith, has been the sole purpose of strengthening his claim to be a refugee. The Tribunal must therefore disregard it under s.91R(3).

142.    In any event, if the authorities do find out that the applicant has been associating with people from the Baha’i faith and they ask him questions about his religious views, he would be telling the truth if he tells the authorities that he has never engaged in an exploration of the Baha’i faith for any reason other than to try to remain in Australia. The Tribunal does not accept that the applicant has turned away from Islam and he will be perceived as a Baha’i follower, an apostate, or a “spy” (for Israel or Australia or any other country).

143.    The Tribunal considers, based on the country information set out below and discussed with the applicant at the hearing, that unless a person has a profile before they leave Iran or they engage in perceived or actual anti-government or anti-Islamic activities while abroad, they are not at risk of harm on return.

144.    A person may be perceived to belong to a certain religion even if they formally do not. In the present case, taking into account the totality of the evidence, the Tribunal finds that the applicant will not be of any adverse interest to the authorities if he returns to Iran now or in the reasonably foreseeable future. The applicant himself acknowledged that he did not have the official, formal card indicating that he has abandoned Islam and has become a follower of the Baha’i faith. Therefore, the applicant will not be perceived to be a follower of the Baha’i faith.

(Original emphasis.)

18    Accordingly, the Tribunal concluded that the appellant did not have a well-founded fear of persecution.

19    The Tribunal then examined whether the appellant faced a real risk of significant harm for the purposes of the complementary protection criteria in the Migration Act 1958 (Cth) (Migration Act). The Tribunal was not satisfied that the appellant faced such a real risk of significant harm within the meaning of s 36(2A) of the Migration Act. Accordingly the Tribunal was not satisfied that the appellant was a person in respect of whom Australia had protection obligations under s 36(2)(aa).

Proceedings before the Federal Circuit Court

20    On 1 August 2016 the appellant filed an application for judicial review of the Tribunal’s decision made on 8 July 2016 in the Federal Circuit Court. This application was amended on 17 January 2018. The appellant was legally represented in the Federal Circuit Court proceedings.

21    In his amended application, the appellant relied on the following grounds of review:

1.    The Administrative Appeals Tribunal erred in failing to give information to the applicant that the Tribunal considered would be the reason, or part of the reason, for affirming the decision under review, in breach of s424A of the Migration Act (“the Act”).

Particulars

a.    In assessing the genuineness of the applicant’s conversion to the Baha’i faith, the Tribunal Member contacted the National Baha’i Office on 17 June 2016 to obtain information about the applicant.

b.    The information obtained from the National Baha’i Office on 17 June 2016 (“the information”) undermined the applicant’s claim that he was a genuine convert to the Baha’i faith and in doing so, undermined the applicant’s claim to be refugee.

c.    The information was obtained under s424 of the Act and the Tribunal was bound by s424(1) of the Act to have regard to that information in making the decision on the review.

d.    The information was the reason, or part of the reason, for affirming the decision under review.

e.    The Tribunal did not give the information, or clear particulars of the information, to the applicant as required by s 424A of the Act.

2.    The Administrative Appeals Tribunal erred in failing to invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review, in breach of s425 of the Act.

Particulars

a.    The question of whether the applicant’s conversion to the Baha’i faith was genuine was an issue arising in relation to the decision under review under s425 of the Act.

b.    The information obtained from the National Baha’i Office on 17 June 2016 undermined the applicant’s claim that he was a genuine convert to the Baha’i faith and in doing so, undermined the applicant’s claim to be refugee.

c.    The Tribunal failed to inform the applicant of the nature and content of the information, and did not give the applicant a sufficient opportunity to give evidence, or make submissions, about this information.

3.    The Administrative Appeals Tribunal acted in a way that was legally unreasonable, or alternatively, illogical or irrational, in determining that the applicant’s conversion to the Baha’i faith was not genuine.

Particulars

a.    The Tribunal put a high and/or determinative level of reliance on the fact that the National Assembly had not officially accepted the applicant into the Baha’i faith. The Tribunal stated that if the National Assembly had accepted the applicant the Tribunal “might well have” found that the applicant’s conversion was genuine.

b.    The information obtained from the National Baha’i Office on 17 June 2016 included information that nobody had been approved for “the last couple of years”.

c.    It was legally unreasonable, or alternatively, illogical or irrational, for the Tribunal to rely on the lack of approval from the National Assembly in its decision about whether the applicant’s conversion was genuine, when the Tribunal was aware that nobody had been approved for “the last couple of years”.

d.    The Tribunal failed to properly consider and weigh evidence from the National Assembly and from the applicant that the applicant:

i.    had been engaged with the faith for an extended period of time;

ii.    had signed a declaration of his belief in the faith;

iii.    that declaration had been endorsed by a local Victorian assembly; and

iv.    that declaration had been sent to and received by the National Assembly for consideration.

e.    The Tribunal failed to discharge its statutory duty and to properly evaluate or reach the required state of satisfaction in relation to the genuineness of the applicant’s conversion to the Baha’i faith.

4.    The Tribunal acted in a way that was legally unreasonable, or alternatively, illogical or irrational, in determining that the applicant would not be perceived to be a follower of the Baha’i faith.

Particulars

a.    The Tribunal found that the applicant would not be perceived to be a follower of the Baha’i faith, and would therefore not be at risk of harm if he returned to Iran, because he did not have the official, formal card indicating that he has abandoned Islam and has become a follower of the Baha’i faith.

b.    The National Assembly and the applicant had informed the Tribunal that the applicant:

i.    had signed a declaration of his belief in the faith;

ii.    that declaration had been endorsed by a local Victorian assembly; and

iii.    that declaration had been sent to and received by the National Assembly for consideration.

c.    It was legally unreasonable, or alternatively, illogical or irrational, to find that there is no risk that the applicant will be perceived to be a follower of Baha’i on the grounds that he has no “official, formal card” when the Tribunal was aware of the information in paragraph 4(b) above.

22    Both the appellant and first respondent were represented by Counsel at the hearing before the primary Judge.

23    In relation to his first ground of review, the appellant claimed the Tribunal breached s 424A of the Migration Act by failing to give him information relating to the reason, or part of the reason, for affirming the decision under review. The appellant argued, inter alia, that:

    the Tribunal contacted the National Baha’i Office to obtain information to assess the genuineness of his conversion to the Baha’i faith;

    that particular information undermined his claims to be a genuine convert to the faith and a refugee;

    the Tribunal, having obtained the information under s 424 of the Migration Act, was bound by s 424(1) to have regard to the information when making its decision and it was indeed the reason, or part of the reason, for having affirmed the delegate’s decision; and

    the Tribunal did not give him the information, or clear particulars of it, pursuant to s 424A of the Migration Act.

24    At [10] of the primary judgment, his Honour explained that the information the appellant referred to was one of the Tribunal’s file notes. It was a brief record about a telephone conversation between the Tribunal member and Mr D of the National Baha’i Office on 17 June 2016, and was as follows:

When the local assembly has followed them for an extended period of time (the expression is not defined, it may be months or years) the person signs a declaration card declaring that they believe and the local assembly signs the back of it. They are advised of various matters, including that if they return to Iran they are at risk of persecution.

The card is then forwarded to the National Baha’i Office who make the final decision. There is currently a queue of people, whom the National Assembly has not approved yet. They are concerned that Iranians are converting for an ulterior motive. Mr [D] said that nobody had been approved for the last couple of years.

When the person is approved by the National Assembly, they get a card which shows that they are Baha’i.

I advised Mr [D] that for privacy reasons I did not want to disclose the identity of the person who claims to have converted. I told him that this applicant claims that they have written to the Israel HQ of the organisation. He said that if anyone tried to contact the – office in Haifa, they would be referred back to the Office in Australia.

25    It is convenient to refer to this conversation as Information A.

26    His Honour noted at [11] that that information could not have been about the appellant because his identity was not revealed during the conversation. The primary Judge considered the submission of the appellant that the test was also about whether the information was about a class of people: Baig v Minister for Immigration & Multicultural Affairs [2002] FCA 380. His Honour distinguished Baig on the basis that, in the present case, the information was not used as a reason for refusing the application, rather it confirmed the process that was to be adopted and provided an explanation for why formal acceptance of the appellant may not have occurred at the time of the hearing. His Honour also observed that there was no file note of the second conversation with the National Assembly although a summary appeared at [90] of the Tribunal’s reasons and it clearly involved the appellant. The primary Judge adopted the submission of the Minister that the information provided by the National Assembly was consistent with the appellant’s evidence that he had not been approved at the national level of Baha’i, and because the relevant information was also given to the Tribunal by the appellant it fell within the exception in s 424A(3) of the Migration Act.

27    In relation to ground 2, his Honour noted that it was developed on the basis that the Tribunal failed to provide the appellant with the information from the National Assembly that they had concerns about a number of Iranian applications, in circumstances where he was Iranian. His Honour observed that there was no transcript of the actual discussion the Tribunal member had with the appellant, that it would have been improper for the Tribunal to have converted information into a racial stereotype and used it against the appellant, however there was no evidence that this had occurred. His Honour concluded:

18.    … The decision does not mention this information, presumably because it is not a fact that would be relevant, and therefore it is not something that one would expect to see in the reasons.

19.    I am not persuaded that the applicant has established either: first, that this was not discussed at the hearing (as there is no transcript), and secondly, that it was a fact or circumstance that was probative or in some way influenced the member’s decision.

28    In relation to ground 3 his Honour found, in summary, that:

    the Tribunal set out extensive reasons for its views of the credibility of the appellant;

    it was clearly open to the Tribunal to reject the appellant’s evidence in light of the inconsistencies in evidence identified and the implausible nature of some of his evidence (for example, concerning the appellant’s brother); and

    the Tribunal did not appear to have used against him the fact that the National Assembly had not yet accepted the appellant.

29    In relation to ground 4 the primary Judge referred to the Tribunal’s finding that the appellant would not be perceived to be a follower of the Baha’i faith in Iran, and further findings by the Tribunal that, in fact, the appellant had not abandoned Islam, did not have a profile before he left Iran and, since leaving Iran, had not engaged in activities to put him at risk on his return.

30    Ultimately, the primary Judge dismissed the application for judicial review with costs.

Appeal to the Federal Court

31    The appellant filed a notice of appeal at the Federal Court on 20 July 2018. Prior to the hearing his legal representatives stated that he sought to press only the first and fourth grounds of appeal set out in that notice of appeal.

32    At the hearing of the appeal his Counsel, Ms Costello, sought the leave of the Court to amend the notice of appeal to replace ground of appeal 1 with a new ground. This proposed new ground addressed both Information A and Information B, and further addressed the issue of Information A and/or Information B being “specifically about the appellant or another person – the Baha’i National Assembly –”. Mr Wood for the Minister conceded that submissions below had addressed both Information A and Information B. It followed that, to that extent, the Minister would not be prejudiced by the amended notice of appeal. However the question whether the information provided by Mr D of the National Assembly of Baha’i concerned “another person”, that is the National Assembly, for the purposes of s 424A of the Migration Act, was not raised before the primary Judge. As Mr Wood submitted, the Minister may have adduced evidence to address that issue, if it had been.

33    In these circumstances, while I was prepared to grant leave to the appellant to file and serve an amended notice of appeal substituting ground of appeal 1, I was not prepared to grant leave to the notice of appeal being amended to include a ground of appeal as sought by the appellant in terms of s 424A and “another person”. As a result, ultimately the appellant relied only on the following two grounds of appeal:

1.    The Learned Judge below erred by not finding that the Tribunal breached s424A in respect of information obtained from the Baha’i national office on 17 June 2016 (Information A) and/or 22 June 2016 (Information B).

Particulars

i.    Information A and/or Information B was the reason or part of the reason for affirming the decision under review: s 424A(1).

ii.    Information A and/or Information B was specifically about the appellant … and not just about a class of persons of which the appellant was a member: s 424A(3)(a).

iii.    Information A and/or Information B was not given to the Tribunal by the appellant for the purposes of the review (s 424A(3)(b)), but was obtained by the Tribunal under s 424, and the Tribunal was obliged to have regard to it by s 424A (1).

2.    …

3.    …

4.    The Learned Judge erred by finding that the Tribunal had not acted in a way that was legally unreasonable, or alternatively, illogical or irrational, in determining that the applicant would not be perceived to be a follower of the Baha’i faith, in circumstances where:

a)    The Tribunal found that the applicant would not be perceived to be a follower of the Baha’i faith, and would therefore not be at risk of harm if he returned to Iran, because he did not have the official, formal card indicating that he has abandoned Islam and has become a follower of the Baha’i faith.

b)    The National Assembly and the applicant had informed the Tribunal that the applicant:

a.    had signed a declaration of his belief in the faith;

b.    that declaration had been endorsed by a local Victorian Assembly; and

c.    that declaration had been sent to and received by the National Assembly for consideration.

c)    It was legally unreasonable, or alternatively, illogical or irrational, to find that there is no risk that the applicant will be perceived to be a follower of Baha’i on the grounds that he has no “official, formal card” when the Tribunal was aware of the information in paragraph 4(b)) above.

34    In his notice of contention filed on 10 August 2018, the Minister relied on the following additional grounds:

1.    The primary judge correctly held that the content of a file note of a conversation between the Tribunal member and Mr D dated 18 June 2016 (File Note) “was not used as a reason for refusing the application” (at [12]). Accordingly, the relevant information in the File Note was not “information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review” and therefore did not fall within the terms of s424A (1) of the Migration Act 1958 (Act). The primary Judge was therefore correct to reject ground 1 of the amended application filed on 17 January 2018.

The primary judge appears to have concluded, by reference to Baig v Minister for Immigration & Multicultural Affairs [2002] FCA 380 (Baig), that the content of the File Note does not fall within the terms of s 424A(3)(a) of the Act because it was “used in the Baig sense” (at [11]-[12]).

2.    The primary judge correctly held (at [11]) that the relevant information in the File Note “cannot have been about the applicant as his identity was not revealed during the enquiry.” Accordingly, the first respondent contends that it follows that the relevant information in the File Note is “not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member” and engaged the exception to s 424A(1) of this Act contained in s 424A(3)(a) of the Act.

Consideration

35    The notice of contention filed by the Minister is of particular relevance to ground of appeal 1. Before turning to the grounds of appeal and the grounds in the notice of contention, however, it is appropriate that I briefly comment on the observations of the primary Judge in relation to Baig.

36    Materially, in Baig the Tribunal did not send to the visa applicant, or invite his comment on, items from Agence France Presse to which the Tribunal referred in its reasons for decision. Those press items referred to by-elections in Pakistan relevant to the visa applicant’s claims. In particular, as Gray J noted at [32], the Tribunal appeared to take the view that the Agence France Presse material was exhaustive of the possible by-elections for the Pakistan National Assembly, and that the designation in that material of the places in which by-elections were held excluded the possibility that one was held near the visa applicant’s home. Gray J observed:

33.    Counsel for the applicant therefore endeavoured to bring the case within the procedural ground in s 476(1)(a). She relied on the proposition that s 424A of the Migration Act obliged the Tribunal to provide the applicant with an opportunity to comment on the Agence France Presse material. Section 424A did not oblige the Tribunal to afford the applicant an opportunity to comment on material favourable to his case. If, as I have said, the Agence France Presse items in fact supported the applicant’s case, it appears strange to suggest that there was a failure to observe the procedure required by s 424A(1). It must have been the case, however, that the Tribunal considered that the Agence France Presse items would be the reason, or a part of the reason, for affirming the decision of the delegate of the Minister. It did rely on the items as part of the reason for affirming that decision. The fact that, in relying on them in this way, it misconstrued the items does not detract from the fact that its subjective view was that the items contained material that refuted the applicant’s case on this point. Section 424A(1)(a) is expressed in terms of the Tribunal’s subjective view: if the Tribunal “considers” that information would be the reason, or part of the reason, for affirming the decision under review, it is obliged to give the applicant particulars of that information, ensure that the applicant understands why its [sic] relevant to the review and invite the applicant to comment on it. Once the Tribunal reached the state of mind that it considered that the Agence France Presse items could be relied on to refute the applicant’s claim that he had campaigned in a by-election that took place on 15 April, it was obliged to follow the procedure in s 424A(1). The material did not fall within the exclusion in s 424A(3)(a), because it was not about a class of persons of which the applicant or any other person was a member. It bore specifically upon the question of the applicant’s involvement in campaigning in a by-election. Nor did it fall within the exceptions in s 424A(3)(b) and (c).

(Emphasis added.)

37    As the Minister correctly submits, s 424A does not apply to:

    information that is “not specifically about the applicant or another person and is just about a class of persons of which the applicant or another person is a member”: s 424A(3)(a); and

    information that the visa applicant gave for the purposes of the application for review: s 424A(3)(b).

38    The comment of Gray J in Baig at [33] in respect of material being about a “class of persons” has been considered – and explained – by the Full Court of this Court on a number of occasions. In VHAP v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82; (2004) 80 ALD 559, for example, Gyles and Conti JJ said:

12.    The information which would fall within s 424A(1) in this case does not expressly refer to, and is not expressly about, the appellant (or any other relevant person). In other words it is not specifically about the appellant unless it is regarded as being about every person who may fall into a class which is the subject of the information. Section 424A(3) provides, so far as is relevant:

‘(3)    This section does not apply to information:

(a)    that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member ...’

13    It is argued for the appellant that this prescribes two criteria that must be met, namely, that the information:

(1)    is not specifically about the applicant; and

(2)    is just about a class of persons

It is submitted that the information in question was general in nature, covering more than one class of persons, and so did not satisfy the second criterion.

14    In our opinion that argument must be rejected. The reference to the class of persons in subs 424A(3)(a) is not another criterion to be met. It is designed to underline the specificity required by precluding any argument that reference to a class would be taken as a reference to all individuals falling within it. This construction of the subsection is consistent with the decisions in NANM and NANN of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 99 at [17] and VHAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 186 75 ALD 609 at [50] per Kenny J and [71] per Downes J with which we agree. The opinion of Ryan and Finkelstein JJ on this point in NARV v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 262; (2003) 203 ALR 494 at [30]-[31] seems to be contrary to those authorities (whilst seeking to distinguish them) but, in any event, would not affect the conclusion of Finkelstein J in this case even if correct.

(Emphasis added.)

39    The comments of Gyles and Conti JJ in VHAP have been specifically approved and adopted in such cases as Minister for Immigration and Citizenship v SZHXF [2008] FCAFC 36; (2008) 166 FCR 298 at [19] and SZVCZ v Minister for Immigration and Border Protection [2017] FCAFC 130; (2017) 252 FCR 540 at [46]-[47].

40    It follows that, the Full Court has conclusively determined that the reference to a “class of person” in s 424A(3)(a) is not itself a criterion to be met in order for the exception to apply – the criterion is that the information is not specifically about the applicant or another person.

41    At [11] of the primary decision his Honour stated that, in Baig, Gray J “concluded that s.424A(3)(a) requires the information to be about a ‘class of persons’, therefore the information about the by-election was information that required a s.424A letter”. Respectfully, this is clearly not correct in light of such cases as VHAP, SZHXF and SZVCZ.

42    I draw attention to this point only because it is common ground in this case that the observation of the primary Judge at [11] was incorrect, and because of the concern expressed by the Minister that this incorrect observation be identified and corrected.

43    It was also common ground in this case that this incorrect observation on the part of his Honour did not taint the balance of his Honour’s findings, or his appreciation of applicable legal principles. I also take this view, and indeed I consider that the decision of the primary Judge in this case was correct and ought not be disturbed.

44    I take this view for the following reasons.

Ground 1

45    Ground 1 requires consideration of s 424A of the Migration Act and in particular whether the exception in s 424A(3) applies in this case. Section 424A provides:

Information and invitation given in writing by Tribunal

(1)    Subject to subsections (2A) and (3), the Tribunal must:

(a)    give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b)    ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

(c)    invite the applicant to comment on or respond to it.

(2)    The information and invitation must be given to the applicant:

(a)    except where paragraph (b) applies--by one of the methods specified in section 441A; or

(b)    if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.

(2A)    The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.

(3)    This section does not apply to information:

(a)    that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

(b)    that the applicant gave for the purpose of the application for review; or

(ba)    that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

(c)    that is non-disclosable information.

(4)    A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).

46    In relation to Information A, the appellant submits that the Tribunal revealed information to the National Assembly including that the appellant had applied for approval as a Baha’i member and that he claimed to have written to the Israeli headquarters of the Baha’i organisation. It followed that the information the Tribunal obtained from Mr D of the National Assembly in return was not general information about a class of persons but specific information generated in response to a targeted request about the Baha’i national authority and the appellant himself.

47    The appellant submitted further that the Minister’s claim that the information in the Tribunal’s file note was excluded by s 424A(3)(a) should be rejected, and that his Honour fell into error by finding that this information was given to the Tribunal by the appellant (and therefore fell within the exception in s 424A(3)(b)). This information also included material that undermined the appellant’s claims, including that the National Baha’i office was concerned that Iranians were converting for ulterior motives.

48    In response, the Minister submitted, in summary, that the primary Judge was correct to find that this information was not “about” the appellant, and that the information provided by the National Assembly was entirely general about the process for becoming approved as a member of the Baha’i faith. The Minister submitted that the finding of the primary Judge to the effect that “the test is not simply whether the information was about the applicant, but also whether it was about a ‘class of people’” involved clear error in light of such authorities as SZVCZ. In any event the information obtained by the Tribunal from Mr D did not in its terms constitute a rejection, denial or undermining of the appellant’s claims to satisfy the criteria for a visa, nor was it considered by the Tribunal to do so. The fact that the Tribunal informed itself as to the process by which approval may be obtained by persons did not entail that information about the process would be the reason for affirming the decision. The view of the National Assembly that Iranians were converting for ulterior purposes was not apparently “the reason” relied on by the Tribunal for affirming the decision under review, nor did that information constitute a rejection, denial or undermining of the appellant’s claims.

49    In relation to Information B, the Tribunal again obtained information from the National Assembly. This information concerning the state of affairs on 22 June 2016 was not provided by the appellant to the Tribunal. It was clear from [123] of the Tribunal’s decision that this information was a reason for the Tribunal affirming the decision of the delegate, that the appellant was not put on fair notice in writing of critical matters of concern to the Tribunal, and in this respect the Tribunal’s decision contravened s 424A of the Migration Act. At the hearing, Counsel for the appellant expanded on this point by distinguishing between the information provided by the appellant himself that his conversion had not been approved, and the information provided by the National Baha’i office on 22 June 2016, as

    Information B, although to the same effect as the information provided by the appellant, was provided on a different day;

    That information was provided from the perspective of the National Baha’i office on 22 June 2016.

50    In respect of this information, the Minister submits, in summary, that the information that the appellant had not been approved by the Baha’i National Assembly was exactly the same information as that provided by the appellant himself to the Tribunal one day prior to the conversation between the Tribunal and Mr D. Further, a critical issue is that the appellant never claimed that he had been approved by the National Assembly, such that this information was new or different to the existing claim.

51    In my view the submissions of the Minister are correct.

52    I agree with the Minister that Information A was information about the process of conversion to the Baha’i faith in Australia, and was not about the appellant. This is clear from the Tribunal’s file note. So, although from the file note it appears that, during the course of the conversation, Mr D referred to “Iranians converting for an ulterior motive”, there was no evidence that the Tribunal had identified the subject of its inquiry as an Iranian person (or, more specifically, the appellant). It was open to the primary Judge to infer that there may have been an increase in the number of Iranians seeking conversion to the Baha’i faith such that Mr D mentioned this issue of his own volition, and without reference to the appellant. Further, although in the file note the Tribunal refers to the appellant’s claim to have written to the Israel headquarters of the organisation, this issue again concerned the process of conversion to the Baha’i faith rather than the appellant specifically. As his Honour points out, the identity of the appellant was not revealed, and the information provided by Mr D confirmed the process that was adopted and provided an explanation for why formal acceptance of the appellant may not have occurred by the time of the hearing. The point relied on by the Minister in ground 2 of the notice of contention has merit – Information A fell within the exception to s 424A(1) contained in s 424A(3)(a) of the Migration Act.

53    The position is less clear in relation to Information B, because that conversation between the Tribunal and Mr D was specifically about the appellant and s 424A(3)(a) could not be applicable. The question then arises as to whether it constituted information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision that was under review. If it was, then s 424A(1) was enlivened.

54    In my view, however, s 424A(1) was not enlivened.

55    Section 424A(1) only applies to information that in its terms contains a “rejection, denial or undermining” of an applicant’s claims to be a person to whom Australia owes protection obligations, which assessment is to be made in advance and independently of the Tribunal’s actual reasoning on the case: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 at [18]. I agree with the submission of Mr Wood that the statement by Mr D to the Tribunal that the Baha’i National Assembly had not (to that date) accepted the appellant into the Baha’i faith did not constitute a “rejection, denial or undermining” of the appellant’s claims – it was simply confirmation of the appellant’s position as he had put it to the Tribunal the previous day. Further, I am not persuaded that that Mr D’s communication constituted a reason (or part of a reason) for the Tribunal’s decision. The fact that the conversation between the Tribunal member and Mr D took place the day after the appellant had told the Tribunal the same thing did not make it “information” within the meaning of s 424A(1)(a), and certainly did not colour it with the character identified in SZBYR.

56    In my view ground of appeal 1 has no merit.

Ground 4

57    In ground of appeal 4, the appellant claims legal unreasonableness, or alternatively illogicality or irrationality, on the part of the Tribunal in determining that the appellant would not be perceived in Iran to be a follower of the Baha’i faith, because he did not have the “official, formal card” of membership, and notwithstanding that the appellant had (inter alia) signed a declaration of his belief in the faith which had progressed to the National Assembly for consideration.

58    There has been a regrettable tendency in recent years for unsuccessful litigants to default to the characterisation of unfavourable administrative decisions as unreasonable, illogical and/or irrational, when their actual complaint is that they dislike the outcome (see, for example, Gleeson CJ and McHugh J in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at [40] and French CJ in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [30]). If a finding is rationally open to the decision-maker, it is not unreasonable (for example, Minister for Immigration and Citizenship v Li at [30]), nor is it illogical or irrational (for example, Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [135]).

59    In this case the Tribunal had, for detailed reasons set out in its decision, concluded that the appellant had not abandoned Islam, was not a genuine convert to the Baha’i faith, and had become involved with the faith for the sole reason of strengthening his claims to protection in Australia. This was notwithstanding that the appellant had informed the Tribunal that he had signed a declaration of his belief in the Baha’i faith – the Tribunal was aware of this claim on the appellant’s part. The Tribunal had also found that the appellant had no profile with the authorities prior to leaving Iran, such as to draw adverse attention – of any kind – to him on his return. The Tribunal’s statement at [144] of its reasons that the appellant did not have “the official, formal card indicating that he has abandoned Islam and has become a follower of the Baha’i faith” must be read in context – the Tribunal was simply noting that such a card in the possession of a person entering Iran could induce the perception that that person is Baha’i, but that the appellant did not possess such a card.

60    These findings were open to the Tribunal. There was nothing unreasonable, illogical, or irrational about them.

61    Ground of appeal 4 has no merit.

Conclusion

62    The appeal is not substantiated. The appropriate order is to dismiss the appeal, with costs.

Associate:

Dated:    13 December 2018