FEDERAL COURT OF AUSTRALIA

FIG17 v Minister for Home Affairs [2019] FCA 1105

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant must pay the first respondent's costs, to be assessed if not agreed.

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

REASONS FOR JUDGMENT

JACKSON J:

1    This is an appeal from a judgment of the Federal Circuit Court of Australia dismissing an application for judicial review of a decision of the Immigration Assessment Authority. The Authority affirmed a decision of a delegate of the first respondent (the Minister) refusing the appellant's application for a protection visa. This court's jurisdiction to decide the appeal is conferred by s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth), and is not relevantly limited by s 476(3) of the Migration Act 1958 (Cth) (the Act).

The application for a protection visa and the Authority's decision

2    The appellant is a national of Iran who is 32 years of age. He arrived in Australia on 6 July 2013.

3    On 10 January 2017 he applied for a Safe Haven Enterprise Visa, which is a subclass of protection visa. That application was based on the following claims. The appellant feared returning to Iran because he would suffer persecution for being an atheist in a country governed by shariah law. He was expelled from university after posting a controversial article on the university noticeboard. In 2011 he joined an atheist group and attended regular meetings, which were secret. The aim of the group was to promote 'the Atheism ideology'. In 2012 he married his girlfriend, but later discovered that other members of her family were Islamic radicals. The family forced he and his wife to separate, and one of her cousins pledged to kill him if he continued to dishonour their family. The appellant's car was attacked while a friend was driving it (and the appellant was not in it), and the friend was beaten because the attackers assumed that the friend was the appellant. The appellant left Iran soon after that. On two occasions after he left, the 'Islamic police' raided his family home, searching for him.

4    The appellant claimed that in shariah law the punishment for being an atheist is the death penalty, and stated that he had taken a very difficult journey to Australia 'to simply save my life and stay safe'.

5    On 4 May 2017 a delegate of the Minister decided to refuse a protection visa to the appellant because he was not a person in respect of whom Australia had protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act. That decision was a fast track reviewable decision for the purposes of Part 7AA of the Act. On 5 May 2017 it was referred to the Immigration Assessment Authority for review. On 26 May 2017 written submissions were provided to the Authority on behalf of the appellant, along with a statutory declaration by him, and three other statutory declarations by his girlfriend and two other friends, all of whom lived in Australia. Those materials were not before the delegate.

6    The submissions said that the appellant's 'anti-Islam and anti-Religion activities' in Iran and in Australia would be considered by the Iranian authorities to be anti-government activities if he returned to Iran, and would thus expose him to a risk of harm from the authorities. They said that the appellant was entitled to protection as a member of a particular social group, being Iranian atheists and agnostics (apostates). The appellant claimed that he would also be at risk of harm because of his membership of the particular social group of failed asylum seekers.

7    The appellant's statutory declaration sought to advance evidence of activities promoting atheism in which he had engaged in Australia, including Facebook posts, and to explain his omission to put that material before the delegate. The three other statutory declarations contained statements which confirmed the atheism of the appellant and indicated that he was open about his atheistic views while in Australia.

8    On 23 November 2017 the Authority affirmed the decision not to grant the appellant a protection visa. The Authority refused to consider the statutory declarations because it took the view that they were new information which, under s 473DD of the Act, it could not consider. This aspect of the Authority's decision was the subject of two of the grounds of the application for judicial review, and of two of the grounds of the present appeal.

9    The Authority indicated that it was not persuaded that the appellant was forced to resign from university because of a controversial article posted on a bulletin board. It accepted that the appellant is not religious and considers himself to be an atheist, but was not satisfied that when in Iran he was a member of an atheist group and attended regular meetings. The Authority found that the appellant had fabricated his claim of the threats against him from his wife's family and cousin, the attack on his car and the raids on the family home. The Authority was not satisfied that the appellant would be prosecuted as an atheist or apostate on his return to Iran.

10    In relation to the claim that the appellant feared harm as a member of the particular social group of returned asylum seekers from Western countries, the Authority observed (at [46]) that 'credible sources have told DFAT [Department of Foreign Affairs and Trade] that they [i.e. members of that group] will generally only be questioned if they had [sic] done something to attract the specific attention of authorities. The vast majority of people questioned would be released after an hour or two'. The Authority therefore was satisfied that the appellant would not attract the adverse attention of the Iranian authorities.

11    The Authority concluded that the appellant did not meet the requirements of the definition of refugee in s 5H(1) and so did not meet the criterion in s 36(2)(a). The Authority applied the same reasoning to conclude that there was not a real risk of significant harm for the purposes of the complementary protection criterion in s 36(2)(aa).

The application to the Federal Circuit Court

12    On 5 December 2017 the appellant applied to the Federal Circuit Court for judicial review of the Authority's decision. He was represented by counsel and on 22 November 2018 filed an amended application which set out four grounds of review.

13    The appellant had no legal representation in the appeal to this Court. The error claimed in each of his grounds of appeal is, in effect, that the Federal Circuit Court was wrong not to find that the Authority erred in the way set out in the corresponding ground of review in that court. The wording describing the Authority's errors in each ground of appeal is identical to the corresponding wording in the ground of review.

14    Three of the grounds of review in the Federal Circuit Court had particulars, but none of the grounds of appeal to this Court do. Nevertheless, I will proceed on the basis that the particulars to the grounds of review before the Federal Circuit Court purport to identify the errors by the Authority which, it is now said in this appeal, that court wrongly failed to find. I have also had regard to the outline of written submissions settled by counsel and filed in the Federal Circuit Court.

15    The Federal Circuit Court dismissed the application for judicial review on 6 December 2018, with the primary judge delivering ex tempore reasons.

Ground 1 - irrationality

16    The first ground of appeal and ground of review alleges that a finding that the Authority reached, namely, that it was not satisfied that the appellant 'would be viewed as an apostate' was irreconcilable with an earlier finding that he was an atheist and no longer practised Islam. The appellant claims that this is affected by jurisdictional error because it was irrational.

17    In MZZGE v Minister for Home Affairs [2019] FCAFC 72 at [22] the Full Court summarised the principles concerning irrationality as a ground of judicial review as follows:

A decision might be shown to be affected by jurisdictional error if:

(1)    no rational or logical decision-maker could have arrived at the decision on the same evidence; this cannot be made out if different minds might reach different conclusions: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130], [131] (Crennan and Bell JJ);

(2)    there is no logical connection between the evidence and the inferences drawn: Fattah v Minister for Home Affairs [2019] FCAFC 31 at [45] (Perram, Farrell and Thawley JJ);

(3)    there is an irrational or illogical step in reasoning, at least where that faulty step can be shown to have affected a material conclusion: SZMDS at [132].

18    It appears here that the appellant claims that the Authority fell into the third category of error summarised by the Full Court. The error is said to have occurred in paragraph 52 of the Authority's decision, which reads as follows:

I accept that that [sic] applicant may no longer practise Islam on his return to Iran and is an atheist. On country information referred to above I am not satisfied that he would be viewed as an apostate or that his non observance of Islamic practices will give rise to a real risk of harm on his return.

19    In my view there is no logical contradiction between the first and the second sentences of this paragraph. The second sentence does not say that the appellant would not be an apostate, it says that he would not be viewed as one. A fair reading of that in the context of the rest of the paragraph and the reasons as a whole is that it is saying that despite his atheism, the appellant would not be of sufficient interest to the authorities to lead to persecution or harm.

20    That is confirmed by the reference to the country information that the Authority had already summarised, which was to the effect that atheists who do not express their views in public are able to lead normal lives in Iran without facing any further restrictions. In the context of referring to that information, the Authority said that while it was satisfied that the appellant was an atheist, based on the country information it was not satisfied that he would be persecuted on his return to Iran. Other country information referred to was to the effect that political opponents of the Iranian regime could be charged with apostasy. But the Authority found that the appellant was not a political opponent of the regime. The Authority also referred to a DFAT report which indicated that it was unlikely that individuals would be prosecuted on charges of apostasy, that perceived apostates are only likely to come to the attention of Iranian authorities through public manifestations of their beliefs or attempts at proselytisation, and that atheists are unlikely to come to the attention of security authorities unless they seek to publicise their views. In that context, the Authority recorded that it was not satisfied that the appellant would publicise his views if he returned to Iran and was not satisfied that he faced a real chance of harm arising from his lack of religious beliefs.

21    All this context supports the reading of paragraph 52 of the Authority's reasons which I have given. There is nothing irrational about this aspect of the Authority's reasons. I do not uphold ground 1.

Ground 2 - the statutory declarations of the appellant's friends

22    The second ground of appeal and ground of review asserts error in the Authority's rejection of the statutory declarations of the appellant's girlfriend and two friends.

23    For the purposes of the Authority's review of a fast track reviewable decision, s 473DC(1) of the Act defines 'new information' as documents or information that were not before the Minister when the Minister made the decision under s 65, and that the Authority considers may be relevant. Section 473DD then provides:

For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

(a)    the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

(b)    the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

(i)    was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

(ii)    is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.

24    The first error alleged in the particulars to the second ground of review before the primary judge is that the Authority erred in its interpretation of 'credible personal information which was not previously known' in s 473DD(b)(ii). It appears from the submissions filed on the appellant's behalf in the Federal Circuit Court that he claims that the Authority read that criterion to require that the information must be information not previously known to the applicant.

25    If the Authority did proceed on that basis then that would have been an error, as 'information which was not previously known' is, for the purposes of s 473DD(b)(ii), information that was not previously known to the applicant or information that was not previously known to the Minister: Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; (2017) 257 FCR 111 at [106], cited with approval in Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 353 ALR 600 at [33].

26    I am not, however, persuaded that the Authority did construe s 473DD(b)(ii) in the way the appellant alleges. The paragraph of the Authority's reasons where the error is said to have been made is paragraph 10, which reads as follows:

The last statutory declaration from his girlfriend states she has known the applicant for three years, confirms the applicant is an atheist and she herself is. She states the applicant is trying to express his views about atheism to anyone around him and 'he did meeting at home with many people.' The documents themselves did not exist prior to the delegate's decision and to that extent could not have been provided before the delegate's decision. However, they appear to have been made at the applicant's behest, and given the applicant has been friends with both men for over two years and his girlfriend for three years, I am of the view supporting documents of this type could have been obtained prior to the decision being made. For the reasons given earlier I do not accept the applicant was unaware or misled about the need to provide information to support his claims. I note the delegate accepted his claims to be an atheist. The applicant has not satisfied me that it is credible personal information which was not previously known and had it been known may have affected the consideration of the applicant's claims. Nor am I satisfied that exceptional circumstances exist to justify considering the information.

27    I agree with the primary judge that the second last sentence is referring to the whole of the content of s 473DD(b)(ii). In paragraphs 9 and 10 of the reasons the Authority summarises the statutory declarations as evidence of the appellant's atheism and sharing of his views. Then, immediately before recording the finding that the criteria in s 473DD(b)(ii) are not satisfied, the Authority notes that the delegate accepted the appellant's claims to be an atheist. In that context, the tenor of the second last sentence is that the statutory declarations would not have affected the delegate's consideration of the appellant's claims. I am not satisfied that the Authority made the error alleged in the first particular to this ground of review.

28    The second allegation of error in the particulars is that the Authority erred in its interpretation of s 473DD(b)(i). The appellant claims that this subparagraph was satisfied as the statutory declarations could not have been provided to the Minister because they did not exist at the time the delegate made his decision. The submission fastened, not upon the nature of the information in the statutory declarations, which could have been obtained before the time of the delegate's decision, but on the documents in which the information was embodied, which did not exist at that time.

29    In my view, that approach is incorrect. In Plaintiff M174/2016 at [24], Gageler, Keane and Nettle JJ (Gordon and Edelman JJ agreeing) held that:

The term 'new information' must be read consistently when used in ss 473DC, 473DD and 473DE as limited to 'information' (which may or may not be recorded in a document), in the ordinary sense of a communication of knowledge about some particular fact, subject or event …

30    The communication of the knowledge contained in the statutory declarations could have been made to the delegate, and in that sense the information could have been provided to the Minister, before the delegate made his decision. It is true that s 473DC(1) defines new information to mean 'any documents or information' meeting the two criteria in that subsection. However to apply this in a mechanical way so that s 473DD(b) is satisfied if a specific document did not exist at the time of the Minister's decision, regardless of the nature of the information contained in it, is inconsistent with the purpose of Part 7AA Div 3.

31    The starting point, in s 473DB, is that subject to the rest of Part 7AA, the Authority is to review decisions referred to it without accepting or requesting new information: s 473DB(1)(a). Section 473DC then qualifies that by giving the Authority a limited power to 'get' new information. But s 473DD then confines the significance of that by requiring, in order for the Authority to consider that new information, that there be both exceptional circumstances to justify considering the information, and that the information either was not and could not have been provided to the Minister, or it was not previously known and may have affected the consideration of the appellant's claims.

32    The evident intent is that, even if there are exceptional circumstances, an applicant will be unable to rely on new information before the Authority if he or she knew the information and was able to give it to the Minister before the Minister's decision, or if the Minister knew the information anyway. The scheme of Part 7AA is that, except in limited circumstances, the Authority must review de novo a fast track decision referred to it on the papers, those papers being the review material provided to it by the Secretary of the Department, and conduct that review without accepting or requesting new information or interviewing the referred applicant: BVD17 v Minister For Immigration and Border Protection [2018] FCAFC 114; (2018) 261 FCR 35 at [31].

33    That scheme is confirmed by the explanatory memorandum to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth); see in particular page 9 and [891], [915]-[916] and [919]-[920]. The explanatory memorandum may be used to confirm the meaning of Part 7AA: Acts Interpretation Act 1901 (Cth) s 15AB(1)(a).

34    It would undermine the evident purpose of Part 7AA Div 3 if an applicant could satisfy s 473DD(b)(i), and therefore s 473DD(b) as a whole, simply by putting information that was available to the applicant before the Minister's decision into a document that did not exist at the time of the Minister's decision. Section 473DD should be read to the contrary, so as to promote the scheme of Part 7AA, by construing 'information' to mean the content of a document, not the particular embodiment of the information which the document represents.

35    That is consistent with the language used in s 473DD. In particular, the use of the term 'known' in s 473DD(b)(ii) points to the content of the information rather than the form in which it is embodied; it is inapt in the present context to speak of 'knowing' a document.

36    It is also consistent with the passage from Plaintiff M174/2016 I have quoted. Also, Markovic J construed the provision that way in FJW17 v Minister for Home Affairs [2019] FCA 881 at [49], where her Honour applied Plaintiff M174/2016 to find that the contents of a letter that post-dated the decision of the delegate in the case before her was the 'information' that needed to be considered under s 473DD. I respectfully agree with her Honour's approach.

37    No error on the part of the Authority is identified in the second particular to ground 2.

38    The submissions in the Federal Circuit Court also argued in the alternative that the Authority had failed to consider the criterion in s 473DD(b)(i) at all, because it did not make an express finding that that provision was not satisfied. That claim is markedly inconsistent with the more substantive error I have just considered. Plainly the Authority did turn its mind to s 473DD(b)(i), and considered that it was not satisfied in the case of the statutory declarations. It did not need to say so in as many words.

39    The third and final error asserted in the particulars to the second ground of review is that the Authority applied an unduly narrow approach to 'exceptional circumstances' in s 473DD(a). This ground is advanced in reliance on the decision of White J in BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958; (2017) 254 FCR 221. In that decision, at [9], his Honour observed of s 473DD:

The requirements of paras (a) and (b) are cumulative but may nevertheless overlap to some extent. The Authority's satisfaction that the new information could not have been provided to the Minister at the time of the s 65 decision (subpara (b)(i)) may contribute to its satisfaction that there are exceptional circumstances to justify considering the new information. So also may the Authority's satisfaction that the new information is credible personal information which had not previously been known (subpara (b)(ii)). Accordingly, one would expect the Authority to consider the para (b) matters when considering in a given case whether the circumstances are exceptional. Obviously enough, however, the matters which may contribute to a finding that the circumstances in a particular case are exceptional may extend beyond those specified in subparas (b)(i) and (ii) and it seems improbable that the Authority could be satisfied, by reference to one matter only, that an applicant's circumstances are not exceptional.

40    His Honour went on to observe (at [39]-[40]) that generally, circumstances will be exceptional if they are unusual or out of the ordinary and also cited a Full Court decision, Maan v Minister for Immigration and Citizenship [2009] FCAFC 150; (2009) 179 FCR 581 which adopted a passage from an English decision (R v Kelly [2000] QB 198 at [51]) giving synonyms for 'exceptional' including 'out of the ordinary course, or unusual, or special, or uncommon' but not 'unique, or unprecedented, or very rare'.

41    The plurality of the High Court in Plaintiff M174/2016 (at [30]) endorsed the same passage when it said, citing BVZ16, that:

Quite what will amount to exceptional circumstances is inherently incapable of exhaustive statement. The word 'exceptional', in such a context, is not a term of art but 'an ordinary, familiar English adjective': '[t]o be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered'.

42    White J observed (at [41], citations omitted) that:

Generally, consideration of whether exceptional circumstances exist will require consideration of all the relevant circumstances. That is because even though no one factor may be exceptional, in combination the circumstances may be such as reasonably to be regarded as exceptional.

43    In Minister for Immigration and Border Protection v BBS16 at [102]-[104] the Full Court approved White J's construction of 'exceptional circumstances' in s 473DD(a). That construction has also found approval in CHF16 v Minister for Immigration and Border Protection [2017] FCAFC 192; (2017) 257 FCR 148 at [17]-[18], Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110 at [48]-[51], and AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111 at [14].

44    Here, the Authority first reviewed the statutory declaration that the appellant had made. That declaration said that the appellant misunderstood the definition of 'refugee' and did not clearly provide all of his claims for protection with his visa application before, during and after his protection visa interview. It claimed that a migration agent who helped him to prepare his application did not advise him that he should clearly provide complete information about his protection claims, including his activities while in Australia, and that he did not know that such activities could be considered. He claimed that he did not know that it was not the responsibility of the delegate to ascertain the nature of his protection claims.

45    The Authority went on to consider other aspects of that declaration that are relevant to ground 3, which I consider below.

46    I have already set out paragraph 10 of the Authority's decision. It indicates that the Authority's decision that exceptional circumstances did not exist was based on two matters. The first is that supporting documents of the type represented by the statutory declarations could have been obtained before the delegate made his decision. That is also one of the criteria in s 473DD(b) which, as BVZ16 shows, is potentially relevant to whether exceptional circumstances exist. The explanatory memorandum to which I have referred gives (at [916]), as an example of a circumstance that would not justify the consideration of new information, 'information which was available to the applicant at the primary stage and was not presented for unsatisfactory reasons'.

47    The second is that the Authority did not accept that the appellant was unaware or misled as to the need to provide information to support his claims. The explanatory memorandum gives, as another example of circumstances that would not justify the consideration of new information, 'a general misunderstanding or lack of awareness of Australia's processes and procedures'. In any event, being unaware or misled does not fit neatly into the criteria in s 473DD(b)(i) or s 473DD(b)(ii). The fact that the Authority referred to it indicates that the Authority did not confine its consideration of exceptional circumstances to those paragraphs. Accordingly I am not satisfied that the Authority did apply an unduly narrow test in its consideration of s 473DD(a).

48    In any event, in this court the appellant identified no circumstance potentially relevant to the Authority's consideration of 'exceptional circumstances' which the Authority did not consider. That was also the case before the Federal Circuit Court, when the appellant was legally represented and his lawyers filed written submissions addressing the point I am presently considering. Nor does any such additional circumstance appear on the face of the appellant's statutory declaration. It follows that the inference that the Authority applied an unduly narrow test is not made out.

49    It also follows that even if the Authority did fall into error, there is no reason to conclude that applying a wider test could realistically have resulted in a different decision, so as to satisfy the criterion of materiality which is essential to the existence of jurisdictional error: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 363 ALR 599 at [45] (Bell, Gageler and Keane JJ, Nettle and Gordon JJ dissenting on this point).

50    Further, if I am correct in my view that the Authority did not fall into error in relation to exceptional circumstances, then it follows that even if it did err in its consideration of s 473DD(b), that could not realistically have resulted in a different decision. The failure of the new information to satisfy the criterion in s 473DD(a) provides an independent reason why the Authority was bound not to consider the statutory declarations. The primary judge was correct so to hold.

51    I do not uphold ground of appeal 2.

Ground 3 - the appellant's statutory declaration and Facebook activity

52    Ground 3 concerns the appellant's statutory declaration made on 26 May 2017. The Authority declined to consider that declaration because it was not satisfied that there were exceptional circumstances to justify considering it. I have already summarised relevant aspects of the declaration. In addition, it attached Facebook posts concerning atheism which the appellant had posted both before and after the delegate's decision. The posts that predated the decision shared links, videos or other posts which apparently promoted atheism. The posts made after the decision were to a Facebook group called 'Atheist Safehouse'. It is not clear whether this was a public group or a closed one.

53    The Authority did not accept the explanation contained in the statutory declaration for the appellant's failure to put the posts predating the delegate's decision in front of the delegate. The Authority noted that in the interview with the appellant, the delegate had summarised the appellant's protection claims, had pointed out that the events the appellant had described were over four years ago, and had asked the appellant why he would now be of interest to the authorities. In that context, when the delegate asked the appellant whether there were other reasons he feared returning home, the Authority would have expected him to raise his Facebook activity if he had held genuine fears in relation to that activity. At the end of the interview the delegate repeatedly prompted the appellant for any more information that may have been relevant. The Authority thus found that it was not satisfied that the appellant was unaware of the need to put his claim forward, or that the Facebook posts that predated the decision could not have been provided before the decision was made.

54    It was against that background that the Authority came to the passage of its reasoning that the appellant criticises in ground 3. That passage (at [8]) is as follows:

I accept the Facebook posts concern the applicant and genuinely come from his Facebook account; however, I do not accept that he had genuine fear of harm on that basis. No supporting country information has been provided to substantiate such a claim nor has the applicant explained how these or the more recent posts would be monitored by the authorities, how they would come to the attention of the authorities or if known why the authorities would be concerned with such posts. Overall, I am not satisfied that there are exceptional circumstances to justify considering this new information.

55    While the statement that the Authority was not satisfied there were exceptional circumstances to justify considering 'this new information' was directed at the information about Facebook activity, read in context it is a finding that circumstances justifying consideration of the statutory declaration as a whole did not exist.

56    The appellant criticises this because, he says, there was country information that substantiated his claim that he had a genuine fear of harm on the basis of his Facebook posts. That information was in the DFAT report dated 21 April 2016, which relevantly said:

3.111    DFAT assesses as credible claims that Iranian authorities frequently harass journalists, bloggers and other media professionals to ensure they do not cross known red lines. Harassment can include surveillance and monitoring, summons, arbitrary arrest and detention, and imprisonment. According to the 2015 Report by the UN Special Rapporteur on Iran, 30 journalists were detained in 2014.

3.112    Many journalists are known to have left Iran for fear of personal safety or imprisonment. For those who stay in Iran, self-censorship is widespread. The 2015 conviction of the US-Iranian Washington Post correspondent, Jason Reza'eian highlights the risks faced by journalists, particularly those who are foreign or have foreign associations.

3.113    Journalists do not have to be particularly high-profile to be subject to adverse attention from authorities. For example, bloggers who only have a handful of readers have been arrested and imprisoned for their published work. In September 2014, the Supreme Court of Iran upheld the death sentence for Soheil Arabi, a blogger convicted of sabb a-nabi (insulting the Prophet Mohammed) for comments he allegedly posted on several Facebook accounts. He was also convicted of 'insulting Government officials', 'insulting the Supreme Leader' and 'propaganda against the system'.

3.114    DFAT assesses that the treatment of journalists and bloggers by the state is dependent on the prevailing political environment and individual personalities in security forces. The more high profile a journalist or blogger is, the more likely that they will become subject to adverse attention if the material they publish crosses red lines.

57    The appellant claimed before the Federal Circuit Court that the existence of this information means that the Authority's decision not to consider his statutory declaration was simply not open on the evidence, or that there was no logical connection between the evidence and the inferences or conclusions drawn, as to which see Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [135].

58    In my view, the country information to which the appellant refers does not rise so high. The passage I have quoted refers to 'journalists, bloggers and other media professionals'. The appellant's Facebook activity does not place him in any of those categories. He posted to a Facebook group which may have been public but, as far as one can tell from the comments on the posts, it was not read in Iran. He also shared a handful of posts, links and videos, but that does not make him a blogger, much less a journalist or media professional. There was country information indicating that one Iranian atheistic Facebook group had more than 187,000 followers, but there is no evidence that the appellant was active in that group. There is no evidence that anyone outside the appellant's circle of friends read his posts, that they were read by anyone in Iran, or that the posts had otherwise come to the attention of the authorities.

59    In any event, as I have indicated, the passage impugned in ground 3 is part of a broader consideration of whether there were exceptional circumstances to justify considering the new statutory declaration or the Facebook posts provided with it. The Authority found that there were not, on the basis of the lack of country information but also because it inferred from the course of the appellant's interview with the delegate that the appellant did not hold a fear of persecution in relation to the Facebook activity. It also did not accept that the appellant did not understand the need to put forward all his protection claims. It was for all those reasons that the Authority made the finding that there were not exceptional circumstances to justify considering the appellant's statutory declaration including the evidence of his Facebook activity. That finding was open on the evidence and there was a logical connection between it and the evidence, taken as a whole. The appellant's attack on it involves taking one part of the relevant passage from the Authority's reasons out of context.

60    In the course of its consideration of this issue, the Authority only expressly referred to the Facebook posts which predated the decision of the delegate. It appears that two of the posts post-dated that decision. It may be accepted therefore that the information satisfied the criterion in s 473DD(b) and that there was no need for the appellant to explain why it had not been put before the delegate. The appellant did not complain of that specific aspect of the decision either before the Federal Circuit Court (when he was legally represented) or before this court. I note it here for completeness. In my view, it is clear from the findings that the Authority made about the country information and the lack of any genuine fear of harm as a result of the appellant's pre-decision Facebook activity that if the Authority had expressly averted to the post-decision posts, it would still have found that there were no exceptional circumstances to justify considering that activity for the purposes of its ultimate decision. I also consider that if the Authority had considered the activity for that purpose, that could not realistically have resulted in any different decision: see SZMTA at [45]. If the Authority's omission to refer expressly to the post-decision Facebook activity was an error, it was not a jurisdictional error.

61    There was also information, as distinct from argument, in the statutory declaration concerning matters other than the appellant's Facebook activities. This included a statement that on the appellant's return to Iran, the authorities 'would find out about my Atheism and anti-Islam activities when they check me at the airport or during interrogations'. That statement is information that is potentially relevant to ground of appeal 4, which I am about to address. The Authority did not refer to that information in the course of dealing with whether it could consider the statutory declaration. I will assume in the appellant's favour, for present purposes, that this was an error.

62    Nevertheless, it was information of a kind that the appellant could have put before the delegate, and there is no suggestion in the materials of any exceptional circumstances which, alone or together, would have justified considering it. I therefore consider that if the Authority had not made the error which I have assumed (without deciding) that it made, that could not realistically have resulted in any different decision, either on the use that could be made of the appellant's statutory declaration, or on the Authority's review as a whole: SZMTA at [45].

63    I do not uphold ground 3.

Ground 4 - failure to consider claim as to scrutiny occasioned by return to Iran

64    Ground 4 asserts that the Authority failed to give proper, genuine and realistic consideration to an integer of the claim made by the appellant or arising from the material before the Authority, namely that being returned to Iran as a failed asylum seeker would give rise to scrutiny regarding his atheism that would not otherwise occur.

65    Before the delegate, the appellant made a general claim that he feared harm from the Iranian authorities should he return to Iran, because he would be targeted as a failed asylum seeker. The delegate rejected that claim based on country information and the appellant's lack of any profile with the authorities. It does not appear that the appellant made any more specific claim before the delegate that, on being questioned on his return, he would reveal his atheistic views, which would then lead to persecution from the authorities or other harm.

66    The appellant did, however, advance that specific claim before the Authority. In a written submission dated 26 May 2017 made on his behalf by a migration agent, it was said:

Membership of a particular social group of Failed asylum seeker

I submit that as a failed returned asylum seeker, [the appellant] will be interrogated and persecuted upon his forced return to Iran. [The appellant] does not have a valid Iranian passport and the process of his forced return would suggest that he was an asylum seeker in Australia. The Iranian authorities will be alerted to his arrival to Iran. [The appellant's] arrival will trigger a process of questionings and interrogations as why he left the country and his religious view as an Atheist and his religious and political activities in Australia might be revealed (even if he was not reported by his ex-wife's family or other Iranians in Australia). It is definitely not a remote chance that his entrance to Iran would result in his arrest and torture and he would be persecuted and might be executed.

67    The Authority dealt with the document in which this was contained at the beginning of its reasons and correctly took it into account as argument rather than new information. Later, it considered whether the appellant was likely to attract adverse attention at the airport. The Authority's conclusion on that was:

47.    On the evidence before me I am satisfied the applicant would not attract the adverse attention of the Iranian authorities. The applicant participated in one protest against the government in 2009 and this did not come to the attention of the authorities. He has not been political in Australia. I accept the applicant may be questioned and even detained for a brief period of time as a returnee. I am not satisfied that this treatment of being questioned or detained briefly would amount to serious harm.

68    The Authority also concluded, in the part of its reasons dealing with complementary protection, that while the appellant may have been questioned on his return for a couple of hours, that would not amount to significant harm. But at no point did the Authority mention the specific contention that, on the appellant being questioned on his return to Iran, his atheism and his claimed religious and political activities might be revealed, leading to adverse interest from the Iranian authorities.

69    The contention also appeared in the appellant's statutory declaration dated 26 May 2017. However, as I have said, there were no exceptional circumstances established before the Authority justifying consideration of the information contained in the declaration.

70    In addressing this ground, it is necessary to determine whether the Authority did fail to give the requisite level of consideration to an integer of the claim made by the appellant or arising from the material before the Authority. If so, it is also necessary to determine whether that means that the Authority did not undertake the task required of it by the statute, and so fell into jurisdictional error: see CNN16 v Minister for Immigration and Border Protection [2018] FCA 1526 at [8].

71    In relation to the first of these two issues, the following observations of the High Court (Bell, Keane and Gordon JJ) in ETA067 v Republic of Nauru [2018] HCA 46; (2018) 360 ALR 228 at [13]-[14] are relevant (citations omitted):

The absence of an express reference to evidence in a tribunal's reasons does not necessarily mean that the evidence (or an issue raised by it) was not considered by that tribunal. That is especially so when regard is had to the content of the obligation to give reasons, which, here, included referring to the findings on any “material questions of fact” and setting out the evidence on which the findings are based. There was no obligation on the Tribunal to refer in its reasons to every piece of evidence presented to it.

Further, there is a distinction between an omission indicating that a tribunal did not consider evidence (or an issue raised by it) to be material to an applicant's claims, and an omission indicating that a tribunal failed to consider a matter that is material: including one that is an essential integer to an applicant's claim or that would be dispositive of the review.

See also Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [5] and [69].

72    The express obligation of the Authority to provide reasons here was less specific than that of the Nauruan tribunal whose decision was the subject of ETA067. Here, if the Authority made a decision on a review under Part 7AA of the Act, it was relevantly required to make a written statement that set out the decision and 'the reasons for the decision': s 473EA(1). However that obligation draws content from the nature of the review being conducted: Minister for Immigration and Border Protection v EEI17 [2018] FCAFC 166; (2018) 261 FCR 461 at [47]. In Plaintiff M174/2016 at [17] Gageler, Keane and Nettle JJ described the nature of the review as follows:

The task of the Authority under s 473CC(1) is to consider the application for a protection visa afresh and to determine for itself whether or not it is satisfied that the criteria for the grant of the visa have been met. The powers conferred on the Authority by s 473CC(2) then enable the Authority to make orders appropriate to give effect to the outcome of its own determination of the merits. If the Authority is not satisfied that the criteria for the grant of the visa have been met, the appropriate order for the Authority to make is to affirm the decision under review. If the Authority is so satisfied, and the Authority has found no other statutory impediment to the grant of the visa, the appropriate order for the Authority to make is to remit the decision for reconsideration by the Minister in accordance with such permissible directions or recommendations as the Authority considers are appropriate to give effect to the Authority's determination.

73    In EEI17, after considering that passage and the terms of s 473EA(1), the Full Court held (at [49]) that in its reasons the Authority is not required to do more than set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based, and the fact that a matter is not mentioned in the Authority's reasons does not mean that it was not considered.

74    In my view, the obligation to give reasons must also be understood in the context of the obligation imposed by s 473CC(2) for the Authority to affirm the fast track reviewable decision of the delegate, or remit the decision for reconsideration 'in accordance with such directions or recommendations of the Authority as are permitted by regulation'. However while r 4.43 of the Migration Regulations 1994 (Cth) permits a number of different directions to be made, since in this case the Authority did not remit the decision for reconsideration, that does not provide useful context in assessing here whether the Authority considered the question that is the subject of ground 4.

75    The onus of establishing a basis for drawing the inference necessary to make out a case of jurisdictional error fell on the appellant: Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 at [67]. In my view he has not discharged that onus. The Authority did not accept that the appellant had done anything to bring himself to the attention of the authorities before he left Iran. It gave detailed consideration to his claim that if he returned to Iran he would suffer harm arising from his lack of religious beliefs, and did not accept that claim. It gave consideration to the possibility that he would be persecuted or harmed on return as a failed asylum seeker, including consideration of what might happen to him at the airport upon his return. It relied on country information indicating that returnees would generally only be questioned if they had done something to attract the specific attention of the authorities, that the vast majority of people questioned would be released after an hour or two, and that only political activists who had done something to attract attention would be arrested. The Authority expressly recorded that on the evidence before it, it was not satisfied that the appellant would attract the adverse attention of the Iranian authorities and found that while he may be questioned or detained briefly, he would not come to serious harm.

76    It is relevant in this context that, the Authority having correctly decided that it could not consider the appellant's new statutory declaration, there was no evidence before it that such questioning would lead to disclosure of the appellant's atheism. But even if the Authority had considered the statutory declaration, its other findings still would have led to the conclusion that the Iranian authorities would not have arrested the appellant or detained him for any significant period of time. The 'evidence' in the statutory declaration did not rise above the level of bald assertion and included no answer to the obvious question of why the appellant would have disclosed his atheism under questioning (which, the Authority found, would not have amounted to torture).

77    For reasons I have given, the Authority was not required to refer to a matter that it did not consider material, and in the absence of cogent evidence supporting the specific concern raised in ground 4, it was open to the Authority to consider that the concern was not material.

78    In view of all this, I do not infer, on balance, that the Authority failed to consider the specific claim that is the subject of ground 4. It is at least equally likely that the Authority did not advert to that specific claim because it did not consider it to be material.

79    The same considerations mean that ground 4 fails at other points in the necessary process of reasoning. The ground uses the terminology of 'integer'. Colvin J observed in CNN16 at [60] that:

The term integer refers to a complete entity, a thing complete in itself or a whole unit. Its use emphasises the focus on whether the overall point has been considered not whether a particular component of the evidence or argument has been specifically addressed.

80    Consistently with that, it is sometimes said that it may be unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality: see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [47] (French, Sackville and Hely JJ).

81    In my view, the contention that if the appellant were to return to Iran, questioning at the airport would have revealed his atheism and led to persecution or harm is not properly described as an integer of his claim. The relevant integers were the claims that he would face harm or persecution on his return to Iran, either as an atheist or as a failed asylum seeker. The particular contention that the authorities would discover his atheism at the airport was part of those wider claims. The Authority did consider those claims. It was not necessary to make a finding about the particular contention because it was subsumed in the broader findings that I have described.

82    That does not follow from any mechanical application of the terminology of 'integer' or of the principles I have set out. It follows because, on a fair reading of the Authority's reasons as a whole, it rejected the appellant's claims that he would suffer persecution and harm on his return to Iran as an atheist or as a failed asylum seeker, and there was ample basis in the material on which it did so. It must be recalled that the Authority is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications, that its reasons are not to be scrutinised with an eye keenly attuned to error, and that it is not necessarily required to provide reasons of the kind that might be expected of a court of law: see Applicant WAEE at [46].

83    If I am wrong about that, then the considerations I have outlined also lead ground 4 to fail on the second issue I have described, namely whether the fact (which I will now assume) that the 'integer' was not considered means that the Authority did not undertake the task required of it by the statute.

84    That task is described in the passage from Plaintiff M174/2016 which I have already set out. So the question here becomes whether the Authority performed the task of determining whether it was satisfied that the refugee criterion in s 36(2)(a) or the complementary protection criterion in s 36(2)(aa) were satisfied.

85    As an administrative decision maker, the questions to be determined were those that the Authority considered to be necessary, not those identified in some way distinct from its process of reasoning (such as pleadings), although its findings necessarily needed to reflect the matters that the appellant sought to agitate: see Minister for Immigration and Multicultural Affairs v Wang [2003] HCA 11; (2003) 215 CLR 518 at [71]-[73].

86    The critical question that would ordinarily need to be addressed in relation to the s 36(2)(a) criterion is whether the appellant has a well-founded fear of persecution for one of the reasons set out in s 5J: see Applicant WAEE at [45] (bearing in mind that s 36(2)(a) has been amended since that decision). In Applicant WAEE the Full Court observed at [45]-[46]:

If the Tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the Tribunal will have failed in the discharge of its duty, imposed by s 414, to conduct a review of the decision. This is a matter of substance, not a matter of the form of the Tribunal's published reasons for decision.

It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived.

87    It is significant to the present case that the court in Applicant WAEE was careful to note that in order for failing to consider a contention to amount to failure to discharge a duty of review, the contention needs to be supported by probative evidence. While the court was speaking of the duty of the Refugee Review Tribunal to conduct a review, there is no reason to think that the Authority's duty to review should be approached differently. Nor is there any reason to think the approach should change when what is under consideration is the complementary protection criterion in s 36(2)(aa).

88    It is consistent with the scope and nature of the Authority's duty, as described in Plaintiff M174/2016 and understood by reference to the considerations identified in Wang, and by reference to the duty to give reasons as elucidated in EEI17, that if there is no probative evidence before the Authority to support a particular aspect of a claim, the Authority does not need to refer to it in its reasons. That is also consistent with the summary of the principle provided in Viane v Minister for Immigration and Border Protection [2018] FCAFC 116 at [28] (Rangiah J, Reeves J agreeing):

In the context of an application for a protection visa, it has been held that whether a tribunal commits a jurisdictional error by failing to consider particular documents or other material depends upon the circumstances of the case and the nature of the material; including the cogency of the material and its place in the assessment of the applicant's claims.

(citations omitted)

89    It is also consistent with the way the principle has been formulated in other authoritative decisions concerning alleged error as a result of failure to consider a matter. For example, in Dranichikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 at [24] Gummow and Callinan JJ (Hayne J agreeing), referred (in the context of natural justice) to a failure to respond to a substantial, clearly articulated argument 'relying upon established facts'. In NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [58] Black CJ, French and Selway JJ said that the Refugee Review Tribunal was 'required to deal with the case raised by the material or evidence before it', and the remarks that followed made it clear that their Honours considered 'material' to be something different to argument or submission. At [63] they referred to 'a failure by the Tribunal to deal with a claim raised by the evidence and the contentions'. In Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136 at [41] Allsop J (as he then was, Spender J and, on this point, Merkel J agreeing) referred to the Refugee Review Tribunal as having failed to deal with a claim that was 'supported by objective evidence'.

90    Whichever way the principle is formulated, in my view the Authority has not failed to carry out its statutory task solely because it has omitted to consider a matter that was not supported by probative evidence before it. Of course, in the present context 'evidence' must be read to mean documents, statements and other information conveying facts, rather than evidence that would be admissible in a court of law.

91    Here, the Authority having correctly concluded that it could not consider the appellant's statutory declaration of 26 May 2017, there was no evidence before it to support the claim that the Iranian authorities would discover, through interrogation at the airport, that the appellant was an atheist. Even if there was, the evidence was not probative, and there was no evidence that discovering the appellant's atheism would lead the authorities to persecute or otherwise inflict significant harm on the appellant as a result - the country information was to the contrary.

92    All the different obstacles facing ground 4 which I have described resolve to one, which may be summarised as follows: the material before the Authority to support the claimed 'integer' was insufficiently cogent to impose on the Authority any obligation to separately consider it or advert to it in its reasons, in order for the Authority to have discharged its statutory duty to review the delegate's decision. I do not uphold ground 4.

Disposition

93    The appeal will be dismissed with costs.

Associate:

Dated:    19 July 2019