FEDERAL COURT OF AUSTRALIA

ARI18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 613

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent is amended to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

2.    Leave to amend the notice of appeal to add a ground in the terms set out at paragraph 16 of the appellant’s further written submissions filed on 24 January 2020 is granted.

3.    The appeal is dismissed.

4.    The appellant is to pay the first respondent’s costs as agreed or assessed.

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

REASONS FOR JUDGMENT

PERRY J:

1.    INTRODUCTION

1    This is an appeal from a decision of the Federal Circuit Court (the Circuit Court) dismissing an application for judicial review of a fast track decision of the Immigration Assessment Authority (the IAA) made on 17 January 2018. The IAA is established by Div 8 of Pt 7AA of the Migration Act 1958 (Cth) (the Act) and is part of the Migration and Refugee Division of the Administrative Appeals Tribunal. By its decision, the IAA affirmed a decision of the delegate of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister), refusing to grant the appellant a Safe Haven Enterprise visa (the visa).

2    The appellant did not file written submissions pursuant to the timetabling orders of the Registrar made on 19 June 2019 or otherwise. However, the appellant attended the hearing of the appeal and made oral submissions. The Minister filed and served written submissions on 2 December 2019.

3    In addition, an issue arose in arguendo during the hearing of the appeal as to whether the IAA had acted unreasonably in relying upon the audio recording of the arrival interview of the appellant in two new respects without apparently considering whether to afford the appellant an opportunity to attend a further interview. As a result, in his helpful post-hearing submission filed pursuant to leave and prepared by Mr Karp of counsel who had then been engaged, the appellant sought leave to amend his notice of appeal to add the following ground:

The second respondent acted in a legally unreasonable manner in failing to consider seeking further information from the applicant, pursuant to s 473DC(3) of the Migration Act, regarding the statement that it cited it AB 211 [14], prior to reaching a conclusion that that statement implied that the appellant was exaggerated, and the Court below erred in failing to so find.

4    The Minister opposed the grant of leave to amend. As the Minister noted in his post hearing written submissions and Mr Karp for the appellant accepted, this issue had not been raised in the Circuit Court.

5    For the reasons set out below, the application for leave to amend the notice of appeal should be allowed but the appeal must be dismissed.

2.    BACKGROUND

2.1    The appellant’s application for the visa and his claims to fear harm

6    The appellant is a citizen of Iran who arrived in Australia in 2013 as an unauthorised maritime arrival. Shortly thereafter, an arrival interview was conducted with the appellant over two days (AB13-36).

7    The Minister exercised the power under s 46A(2) of the Act to allow the appellant to apply for the visa and invited him to do so by a letter dated 8 July 2016 from the Department (AB37). The appellant accepted that invitation, applying for the visa on 20 September 2016 (AB44). The safe haven visa is a class of temporary protection visa, as provided for by s 35A of the Act. As such, it was necessary among other things for the appellant to satisfy the criteria for a protection visa in either s 36(2)(a) (the refugee criterion) or s 36(2)(aa) (the complementary protection criterion): see s 35A(6) of the Act.

8    Turning first to the refugee criterion, at the relevant time s 36(2)(a) provided that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has protection obligations “because the person is a refugee”. A person is a “refugee” for the purposes of the Act if the person (relevantly) “is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country” (s 5H). In turn, s 5J(1) of the Act provided that:

(1)    For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)    there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)    the real chance of persecution relates to all areas of a receiving country.

(emphasis added)

9    In the alternative, s 36(2)(aa) of the Act provided that it is a criterion for a protection visa that the applicant is a non-citizen in Australia “in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm”. The phrase “significant harm” is defined in s 36(2A) to mean arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment.

10    The appellant claimed to fear harm in Iran by reason of his religious views being un-Islamic, his conversion to and practice of Christianity, and his membership of a particular social group of failed asylum seekers. His specific claims may relevantly be summarised as follows.

(1)    He was born into a Shia Muslim family but disliked Islam and was punished at school for not praying or conforming to Islamic rules and values.

(2)    He had a number of interactions with the Basij (a voluntary paramilitary organisation falling under the command of Iran’s Revolutionary Guard which was entrusted with a wide range of duties including internal security, law enforcement, and moral policing). These interactions included being taken to the station, hit and verbally abused as a teenager because he was wearing clothing said to support Western ideology, being kept overnight and mistreated with his brother because they had long hair and were accused of being gay, and being caught on many occasions for conduct such as being with a girl, walking a dog, having Western music, and generally being un-Islamic.

(3)    In 2013, the appellant had an altercation with another individual, AB, who is the husband of his former girlfriend, AZ, and a Basij member. As a result, the appellant was advised by his mother that AB went to the appellant’s home, made threats, and set a fire at the door of his house being a sign of adultery.

(4)    In the course of discussions and debates in a religious study class he was attending as part of his degree, the appellant made negative comments about religion. Some of his classmates were religious and belonged to the University Basij. Shortly thereafter, when he returned to classes he was asked by the Herasat to attend a meeting the following week to answer some questions. (I note that the IAA found that the Heraset are “representatives of the Ministry of Intelligence and State Security embedded in offices in organisations, including universities, in the Iran” (IAA reasons at [15])).

(5)    As a result of these two incidents, the appellant felt he was in serious trouble and with the assistance of his employer, who knew the appellant was worried about what AB might do, the appellant arranged to leave the country shortly thereafter. Subsequently, AB met the appellant’s brother on a couple of occasions and asked where he was. The appellant said that he fears AB who is a member of the Basij and sees him as a threat to his marriage.

11    The appellant also made various claims regarding matters occurring after his arrival in Australia. These included his claim to have an interest in Christianity in Australia, and having attended English classes held in the church, participated in Bible studies, and attended various churches to learn about different denominations. He also claimed to fear the Iranian authorities because of things he has said about Islam and said that, if he were returned to Iran, he would have to pretend to be Muslim which is against his ideology. He said that he also fears Iranian people who think non-Muslims are infidels and dirty, and believe that they would go to paradise by killing an infidel.

12    Finally, he said that he would not be able to seek help because Iran is an Islamic country and anyone against Islam is regarded as against the Iranian authorities.

2.2    The decisions of the delegate and the IAA

13    On 4 April 2017, the delegate refused to grant the visa (AB153). Among other things, the delegate did not accept as credible the appellant’s claims to fear harm from AB, rejecting his evidence concerning the altercation with AB and subsequent threatening behaviour (AB157-158).

14    By a letter dated 7 April 2017, the IAA advised the appellant that the delegate’s decision had been referred to it for review on the same day. The letter enclosed an information sheet which explained among other things the limited circumstances in which the IAA could consider new information (AB172). It also enclosed a Practice Direction given under s 473FB of the Act explaining that the appellant may provide a written submission explaining why he disagrees with the delegate’s decision and any claims or matters which he considered were overlooked, as well as advising as to the limited circumstances in which new information might be considered under s 473DD of the Act (AB177).

15    By a letter dated 16 May 2017, the appellant’s representatives made a detailed submission to the IAA taking issue with the delegate’s decision. The documents attached to the letter said to be new information for the purposes of s 473DD included a copy of his university degree enrolment certificate on the grounds that the importance of the certificate to acceptance of his claims had not been made clear to him until after his application had been refused by the delegate (AB195).

16    On 17 January 2018, the IAA wrote advising that it had decided to affirm the decision under review and enclosed a copy of its reasons (AB207). For present purposes, these may be summarised as follows.

17    The IAA accepted that the claim that the appellant had been baptised since the delegate’s decision was new information. However, in the absence of any evidence to verify that claim, or when or where it occurred, the IAA found that it could not be satisfied that the claim was credible personal information or could not have been provided before a decision was made by the delegate. The IAA also found that, without more, it could not be satisfied that there were any exceptional circumstances to justify considering the information (IAA reasons at [5]).

18    The IAA then made a number of factual findings as to the appellant’s claims which may relevantly be summarised as follows.

19    First, the IAA accepted that the appellant had been arrested and questioned by the Basij on a number of occasions but, given his evidence at the arrival interview regarding these incidents, did not accept his claims in the statutory declaration to have been detained overnight or physically mistreated (IAA reasons at [12]).

20    Secondly, while the IAA accepted the claims regarding the altercation with AB and subsequent action by AB setting fire to the door of the appellant’s home, the IAA found that the appellant’s claim that he left Iran because he feared harm from AB was “somewhat exaggerated” (IAA reasons at [14]). In reaching this view, the IAA took into account that the audio recording of the appellant’s first arrival interview evidenced statements by the appellant, including that “I would put it this way that maybe this situation was not that serious that at that moment I thought about it but because in the back of my mind I was thinking of going and living outside, that incident that happened, nothing could stop me to get out of Iran and fulfil that dream as well” (id).

21    Thirdly, while the IAA accepted that the appellant does not believe in Islam, the IAA did not accept as plausible the appellant’s claims that he made negative comments about religion and Islam in a university class in front of students who were Basij members (IAA reasons at [20]). Furthermore, the IAA found that there was no evidence of Herasat taking any action in response to the appellant’s non-appearance at the requested meeting (IAA reasons at [20]). The IAA concluded that “taken together, these matters undermine the credibility of the claims and I do not accept that the [appellant] made negative comments about religion and Islam in any university class and was asked to attend a meeting with Herasat” (IAA reasons at [21]).

22    Fourthly, while accepting that the appellant had interactions with Christian groups through English classes and may have attended Bible studies and church occasionally after arriving in Australia, the IAA found his understanding of an attraction to Christianity “vague and superficial” and that his more regular involvement with Christianity and initiatives towards baptism had coincided with the making of his protection visa application (IAA reasons at [34]). The IAA was not satisfied on the evidence as a whole that the appellant has a genuine belief in, and commitment to, Christianity or has genuinely converted to that religion. Nonetheless the Tribunal accepted that his engagement with Christianity in Australia was not solely for the purpose of strengthening his claims to be a refugee. As such, the IAA found that s 5J(6) of the Act which required those claims to be disregarded did not apply (IAA reasons at [36]).

23    The IAA then turned to consider whether the appellant had satisfied the refugee criterion in s 36(2)(a) of the Act. It rejected that claim relevantly for the following reasons:

(1)    The IAA found the claim that AB would harm the appellant if he returned to Iran “far-fetched”. Given the passage of time, the lack of any evidence of a continued interest in the appellant, and the earlier findings that the appellant exaggerated his fear of harm from AB, the IAA found it “speculative that AB would continue to have any interest in the [appellant], let alone an intention to seriously harm him” (IAA reasons at [41]).

(2)    The appellant had not genuinely converted to Christianity and as a result, the IAA did not accept that he would identify as a Christian or seek to practice Christianity in Iran. The IAA also considered that it was speculative to suggest that he would be perceived to be Christian on the basis of his activities in Australia should they come to the attention of the Iranian authorities (IAA reasons at [42]).

(3)    While accepting that the appellant does not believe in or practice Islam, the IAA did not accept that he was at risk of harm on that account. Even though country information confirmed that apostasy (leaving Islam) is a crime in Iran punishable potentially by the death penalty, based upon the country information perceived apostates are only likely to come to the attention of the Iranian authorities through things such as manifestations of a new faith or publicising their views (IAA reasons at [44]-[45]).

(4)    The IAA did not accept that the appellant had any intention to pursue Christianity in Iran or express his views about religion more publicly in Iran, and therefore did not accept that he would not do so because of a fear of persecution (at [48]).

(5)    Nor did the IAA consider that the adverse interest which the appellant had experienced from the Basij in the past demonstrated any ongoing interest in him (at [49]). The IAA accepted that he may in the future experience treatment such as harassment, including brief periods of arrest and questioning, fines and warnings in relation to his appearance and conduct. However, it did not consider that individually or cumulatively that treatment would amount to serious harm and that there was anything beyond a remote chance of the appellant experiencing harsher treatment (ibid).

(6)    The IAA was also not satisfied that the appellant would suffer serious harm by reason of being a returning asylum seeker (at [52]-[55]).

24    The IAA concluded that there was no real risk of serious harm for a relevant reason so as to satisfy the refugee criterion in s 36(2)(a) of the Act. Further, given that the appellant did not make any additional claims against the complementary protection criterion in s 36(2)(aa), the IAA found for the same reasons that there was no real chance of the appellant suffering significant harm in the reasonably foreseeable future in Iran (IAA reasons at [58]-[63])).

2.3    The Circuit Court’s decision

25    The appellant had legal representation before the primary judge and relied on an amended application containing two grounds which are essentially repeated in the notice of appeal.

26    The first ground alleged that the IAA erred by failing to give the appellant “new information” under s 473DE, being the audio recording of the appellant’s arrival interview in 2013. The second ground claimed that the IAA’s failure to exercise or consider exercising its power in s 473DC(3) to invite the appellant to give new information concerning his baptism was legally unreasonable. For reasons I later explain, the primary judge rejected both grounds and dismissed the application for judicial review.

3.    RESOLUTION OF THE APPEAL

3.1    Evidence sought to be led and issues raised by the appellant at the hearing of the appeal

27    At the hearing, the appellant made submissions taking issue with findings that certain of his claims were not believed. In support of his submissions he sought to lead evidence on the appeal comprising a photograph of the appellant when he allegedly started Bible studies (MFI2), a document relating to his brother’s shop to explain that he did not lie in his evidence about his brother having such a business (MFI3), and a letter signed by a pastor to show that the appellant had been attending church (MFI4). He also sought to tender his baptism certificate dated 16 April 2017 which was received in evidence on the appeal as it was relevant to ground 3 of the notice of appeal (T 11/12/19 at 14.41-44).

28    It is understandable that the appellant may seek to challenge the merits of the Tribunal’s decision and to rely upon MFI2, MFI3 and MFI4 for that purpose. However, neither his oral submissions to that effect nor these documents are relevant to the outcome of his appeal. This is because neither the Federal Court nor the Circuit Court has jurisdiction to grant the appellant a visa, to consider whether the appellant satisfies the criteria for the grant of protection visas, or to correct mistaken findings of fact by the Tribunal: Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 at [65] (Sackville J), [146] (Kenny J); Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165 at [114] (Kirby J). It follows that the question of whether or not this Court, the Circuit Court or the appellant disagrees, even strongly, with the Tribunal’s decision is not a basis for finding that decision invalid.

29    Rather, the Circuit Court’s jurisdiction is limited to deciding whether the Tribunal’s decision was made lawfully under the Act, that is, whether the Tribunal’s decision is invalid by reason of a jurisdictional error. This Court in turn must decide whether the Federal Circuit Court wrongly held that there was no jurisdictional error. The Tribunal would make a jurisdictional error if, for example, it misunderstood the criteria by which the appellant’s visa application must be assessed under the Act, or if it failed to hear and determine his application in accordance with the requirements of procedural fairness: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82] (McHugh, Gummow and Hayne JJ); Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 179 (the Court).

30    It follows that factual information relied upon by the appellant in support of his claims which was not before the Tribunal because it postdates that decision or otherwise is inadmissible. The tender of MFI2, MFI3 and MFI4 in evidence must therefore be refused, save where the documents are already reproduced in the Appeal Book.

3.2    Relevant provisions of Part 7AA of the Act

31    Grounds 1 and 2(a) of the notice of appeal reflect grounds 1 and 2 of the application for judicial review in the Circuit Court (as counsel for the Minister noted: see Circuit Court reasons at [14] and the Minister’s written submissions at [17]). As these grounds allege jurisdictional errors by the IAA under Div 3 of Part 7AA of the Act in relation to alleged “new information”, it is convenient to begin with a consideration of those provisions and the fast track review context in which they appear.

32    It was not in issue that the appellant is a “fast track applicant” as defined in subs 5(1)(a)(i)-(iii) of the Act and therefore that the delegate’s decision was subject to limited merits review by the IAA under the Fast Track Assessment Process (fast track review) in Part 7AA of the Act (comprising ss 473BA-473JF). As such, the delegate’s decision was referred to the IAA for review pursuant to s 473CA of the Act. Importantly for reasons which will become apparent, where a referral is made under this provision, the Secretary must give to the IAA “review material” in respect of the referred decision (s 473CB). That material must include a copy of the delegate’s written reasons and any material provided to the delegate by the applicant, together with “any other material that is in the Secretary’s possession or control and is considered by the Secretary (at the time the decision is referred to the [IAA]) to be relevant to the review” (s 473CB(1)(a)-(c)). The IAA, in turn, must “review” a fast track reviewable decision referred to it (s 473CC(1)), and in so doing, must pursue the objective in s 473FA “of providing a mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3 (conduct of review).”

33    The conduct of the fast track review was governed by Div 3 of Part 7AA (comprising ss 473DA-473DF). Relevantly, s 473DC(1) provides that:

Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:

(a)    were not before the Minister when the Minister made the decision under section 65; and

(b)    the Authority considers may be relevant.

(emphasis added)

34    “New information” in turn is “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, that meets the two conditions set out in s 473DC(1)(a) and (b)”: Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217 (Plaintiff M174) at [24] (Gageler, Keane and Nettle JJ) (citations omitted).

35    As required by the words emphasised above in s 473DC(1), that section must be read subject to Part 7AA. Importantly, s 473DD limits the discretion conferred on the IAA to consider new information obtained under s 473DC(1) to cases where the requirements of subparas (a) and (b) are met. Thus, s 473DD provides that:

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.

    (emphasis added)

36    The requirements of ss 473DD(a) and 473DD(b) are cumulative. As such, the precondition in subpara (a), together with either of the preconditions in subpara (b)(i) or (ii), must be met before the IAA may consider the new information: Plaintiff M174 at [31] (Gageler, Keane and Nettle JJ) (with whom Edelman J agreed at [100]) and [88] (Gordon J); see also Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; (2017) 257 FCR 111 at [102] (the Court); and AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111; 162 ALD 442 at [13] (the Court).

37    It follows that, despite the ostensible width of the discretion in s 473DC(1), when read in the context of Part 7AA the default position is that the IAA conducts the fast track review on the papers by reference only to the material provided to it by the Secretary: Minister for Immigration and Border Protection v AMA16 [2017] FCAFC 136; (2017) 254 FCR 534 at [19] (Griffiths J) (with whom Dowsett J at [1] and Charlesworth J at [97] relevantly agreed).

38    Section 473DE(1) in turn provides that the IAA must give particulars of any new information considered by it and invite the applicant to comment upon it. That section is in the following terms:

(1)    The Immigration Assessment Authority must, in relation to a fast track reviewable decision:

(a)    give to the referred applicant particulars of any new information, but only if the new information:

(i)    has been, or is to be, considered by the Authority under section 473DD; and

(ii)    would be the reason, or a part of the reason, for affirming the fast track reviewable decision; and

(b)    explain to the referred applicant why the new information is relevant to the review; and

(c)    invite the referred applicant, orally or in writing, to give comments on the new information:

(i)    in writing; or

(ii)    at an interview, whether conducted in person, by telephone or in any other way.

(2)    The Immigration Assessment Authority may give the particulars mentioned in paragraph (1)(a) in the way that the Authority thinks appropriate in the circumstances.

(3)    Subsection (1) does not apply to new information that:

(a)    is not specifically about the referred applicant and is just about a class of persons of which the referred applicant is a member; or

(b)    is non-disclosable information; or

(c)    is prescribed by regulation for the purposes of this paragraph.

Note:    Under subsection 473DA(2) the Immigration Assessment Authority is not required to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.

39    Section 473DE is concerned to ensure that a referred applicant has an opportunity to address new information that has been, or will be, considered by the IAA under s 473DD and that would be the reason or a part of the reason for affirming the fast track reviewable decision (M174 at [35]). However, s 473DA(1) provides that Div 3 (together with ss 473GA and 473GB) “is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority.” Further, s 473DA(2) provides:

To avoid doubt, nothing in this Part requires the Immigration Assessment Authority to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.

40    Nonetheless, the powers conferred on the IAA by Div 3 of Part 7AA are conferred on the implied condition that they must be exercised within the bounds of reasonableness, as explained in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332: see M174 at [21] (Gageler, Keane and Nettle JJ), [86] (Gordon J) and [97] (Edelman J).

3.3    Did the Circuit Court err in not finding that the IAA fell into jurisdictional error in failing to give the appellant new information under s 473DE of the Act (ground 1)?

41    By ground 1 of the notice of appeal, the appellant contends that the Circuit Court erred in not finding that the IAA fell into jurisdictional error in that it failed to “give” the appellant under s 473DE of the Act “new information” as defined in s 473DC, namely, the audio recording of the appellant’s arrival interview. I understand this to be a reference to a failure to give the appellant particulars of the audio recording of the arrival interview and to afford him an opportunity to comment as required by s 473DE.

42    In this regard, the IAA expressly relied upon the arrival interview in rejecting the appellant’s claims in his statutory declaration to have been detained overnight or physically mistreated (IAA reasons at [12]). The IAA also relied upon the audio recording of the 1 July 2013 arrival interview in finding that the appellant’s claim to leave Iran because he feared harm from AB was exaggerated (IAA reasons at [14]).

43    The primary judge explained that then counsel for the appellant submitted with respect to ground 1 of the application for judicial review that:

15. The applicant argues a breach of s 473DE of the Act, in that the Authority considered an audio recording of the applicant’s arrival interview but did not provide him with a copy, which the applicant suggests was required. It was put to me that the audio interview was not available to the delegate but was available to the Authority and it was suggested that the audio arrival [sic] was not:

“… before the Minister for the purposes of section 473DC(1) of the Act.”

44    However, the primary judge further explained that:

16.    The applicant conceded that the Court would need to be satisfied as a matter of fact that the audio interview was not physically before the delegate and reference is made there to the case of DTK17 v the Minister for Immigration and Border Protection [2018] FCAFC 170 at paragraph 38. It was submitted by the applicant that the only file that was before the Authority was the file BCC2016/1296128, which was opened in 2016 and which the first respondent had conceded did not contain the 2013 recording.

(emphasis added)

45    The primary judge held that the submission was at best “speculative”. Ultimately, his Honour rejected the ground on the basis that the evidence established that the audio file was available to the original delegate and was subsequently made available to the IAA (Circuit Court reasons at [17]). In this regard, the primary judge relied upon the evidence of Jennifer Louise Strugnall, solicitor, who explained in her affidavit affirmed on 13 May 2019 (AB231) that she had reviewed the (then) Department of Home Affairs’ file BCC2016/1296128 (the Department’s File) together with a file of material referred from the Secretary to the IAA (the Referral File) and a copy of the IAA’s file (the IAA file) (in accordance with s 473CB(1)). Ms Strugnall said that neither the audio recording for the arrival interview or the arrival interview transcript were contained on the Department’s File, but that they were contained on the Referral File. As a result, the primary judge “found as a matter of fact that the audio file was available to the original delegate and that it was subsequently made available to the Authority.” The primary judge also found in any event that the audio recording was not new information because “it was information that was already known to the applicant because he had participated in the interview” (Circuit Court reasons at [18]).

46    I agree with the primary judge for the reasons which he gives that the audio recording of the arrival interview was not new information, save that the delegate in fact expressly relied upon the arrival interview in her reasons thereby putting beyond doubt that the audio recording of the arrival interview was before the delegate for the purposes of s 473DC(1). Specifically at AB158-159, the delegate found in the context of considering the appellant’s claim to fear return to Iran by reason of his religion, that:

Shortly after the applicant arrived in Australia he was interviewed by officers of the Department. During this interview he identified as being a Shia Muslim. The applicant then made a statement during the entry interview of, “I just believe in God and would like Christianity but don’t know much about it.”

47    As such, I agree with the primary judge that no obligation under s 473DE to give the applicant particulars of new information could arise with respect to this information.

3.4    Did the Circuit Court err in not finding that the IAA’s failure to invite the appellant to give new information regarding his baptism was legally unreasonable (ground 2(a))?

48    The appellant also alleges that the Circuit Court erred in “not finding that the [IAA] fell into jurisdictional error in that its failure to consider exercising its discretion under s 473DC(3) of the Act to, or the exercise of discretion not to, invite the Appellant to give ‘new information’ regarding his baptism was legally unreasonable” (ground 2(a)).

49    The IAA considered the appellant’s claim to have been baptised since the delegate’s decision under the heading “information before the IAA” as follows:

5. It is asserted in the submission [to the IAA received from the appellant’s representative on 16 May 2017] that the applicant has now been baptised. There was information before the delegate that the baptism was intended for late March or early April 2017, pending certain requirements. The claim that the applicant has in fact been baptised is new information. No information or evidence has been provided to verify the claimed baptism or when or where it occurred. In the absence of some evidence, I cannot be satisfied that this is credible personal information or, given there is no evidence of its timing, that this information could not have been provided prior to a decision being made. Nor, without more, am I satisfied there are any exceptional circumstances to justify considering this information.

50    Ground 2(a) of the notice of appeal equates to ground 2 of the application for judicial review in the Circuit Court. The primary judge rejected ground 2 for the following reasons:

20. Ground 2 asserts legal unreasonableness. It asserts that the Authority failed to exercise its discretion by not inviting the applicant to give new information regarding his baptism. The fact that the applicant was moving towards baptism was information that had been provided by the applicant to the Authority. The fact is, the applicant’s baptismal certificate was in his possession at the time of the Authority’s decision. The claim that the applicant was now baptised was found to be new information and was considered. However, the fact that the applicant did not provide any documentary information confirming his baptism was a matter for him. The applicant made the assertion that he may have been poorly advised and that maybe he should have provided the baptismal certificate to assist him in his claim. However, the fact is he did not.

51    In so finding, his Honour did not fall into error.

52    First, the appellant’s claim to have been baptised was found to be new information by the IAA.

53    Secondly, it is evident from the IAA’s reasons at [5] that the IAA did in fact consider whether the preconditions in s 473DD(a) and (b) were met so as to displace the proscription on considering the information otherwise imposed by s 473DD: see above at [17]. However, the IAA held that the preconditions were not met. That being so, the IAA had no discretion to consider the information in the context of undertaking the fast track review: see above at [36].

54    Thirdly, it is not said that the IAA erred in finding that no information or evidence had been provided to verify the appellant’s claim to have been baptised since the delegate’s decision; nor is it said that, in the absence of some evidence, the IAA erred in finding that it could not be satisfied that the information is credible personal information or could not have been provided before a decision was made by the delegate. Furthermore, it is not submitted that the IAA erred in finding that, without more, it could not be satisfied there were any exceptional circumstances to justify considering this information. Rather, the appellant’s submission is that the IAA should have invited the appellant in effect to verify his claim to have been baptised in the interim.

55    With respect, the submission is misconceived. It was for the appellant to establish that the preconditions in s 473DD(a) and (b) were met with respect to the new information that he had been baptised, as the primary judge held at [20]. In line with this, the information sheet attached to the letter dated 7 April 2017 from the IAA advising that the delegate’s decision had been referred to the IAA for review, drew the appellant’s attention to the fact that:

Can I provide new information to the IAA?

We can only consider new information if there are exceptional circumstances to justify considering the new information. New information is information that is relevant and was not before the department when it made its decision.

If there is new information you want us to consider, you must also provide an explanation why the information:

•    could not have been provided to the department before it made the decision to refuse you a protection visa, or

•    is credible personal information that, had it been known to the department, may have affected the department’s decision.

(AB172; see also the translation of the information sheet at AB174-176)

56    The IAA Practice Direction for Applicants, Representatives and Authorised Recipients, which was also attached to the IAA’s letter, gave advice to the same effect (AB179): see also the email from the IAA to the appellant’s refugee advocate on 8 May 2017 at AB 186.

57    In effect therefore the appellant was invited by the IAA to provide evidence and submissions directed to satisfying the IAA that any new information on which he sought to rely satisfied the statutory preconditions under s 473DD of the Act.

58    Fourthly, the appellant’s baptismal certificate was in his possession at the time of the IAA’s decision and indeed pre-dated the submission by the appellant’s representative by email on 16 May 2017 (AB187). The fact that the appellant may have been poorly advised by his representative, as he submitted below, could not establish legal unreasonableness on the part of the IAA and therefore has no bearing upon the question of jurisdictional error. This ground must therefore be dismissed.

3.5    Did the Circuit Court err in rejecting the tender of the appellant’s baptism certificate (ground 2(b))?

59    By ground 2(b), the appellant contended that the Circuit Court erred in rejecting the tender of the appellant’s baptism certificate dated 16 April 2017. The respect in which the primary judge is said to have erred in rejecting the tender of the certificate was not explained either in the notice of appeal or in submissions. In any event, the primary judge accepted at [20] the existence of the baptismal certificate and that it was in the possession of the appellant before the IAA’s decision (as is unchallenged) in dismissing ground 2 of the application for judicial review. Given that the certificate was relevant only to this ground, it follows that even if the certificate had been received in evidence by the primary judge, it could not have led to any different decision.

3.6    The application to amend the notice of appeal to raise a new ground

3.6.1    The issue

60    A question was raised in arguendo at the hearing of the appeal as to whether any issue arose by reason of the IAA having relied upon information from the audio recording adversely to the appellant in two respects which had not formed part of the delegate’s reasoning. As earlier mentioned, both parties filed written submissions after the hearing in accordance with Court orders. The appellant’s post-hearing submissions were prepared with the benefit of legal representation and sought leave to amend the notice of appeal in terms of the proposed ground of appeal set out in the submissions. That ground sought to raise only one of the two aspects of concern raised in arguendo. As such, I have not considered the other matter of concern.

3.6.2    Should leave to amend the notice of appeal be granted?

61    The principles on which this Court exercises its discretion as to whether leave should be granted to raise a new ground on appeal in the context of migration matters were explained by the Full Court in VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 as follows:

46. In our view, the application for leave to rely upon the sole ground of appeal now raised should be refused. Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so: O’Brien v Komesaroff (1982) 150 CLR 310; H v Minister for Immigration & Multicultural Affairs; and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [20]–[24] and [38].

47. In Coulton v Holcombe (1986) 162 CLR 1, Gibbs CJ, Wilson, Brennan and Dawson JJ observed, in their joint judgment, at 7:

It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.

48. The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused.

See also Iyer v Minister for Immigration & Multicultural Affairs [2000] FCA 1788 (Iyer) at [22]-[24] (the Court).

62    After considering these authorities, Madgwick J in NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134; (2005) 147 FCR 51 (with whose reasons Conti J agreed) explained that:

165. It is no accident that the ‘practice’ spoken of in VUAX has often occurred in migration matters. Especially is this so in relation to cases concerning claims to refugee status. In the High Court and in this Court, judges have shown, as was recognized in Iyer, that they are acutely aware of what may be at stake if the claims made are genuine. There is no longer a general system of legal aid for poor applicants, as many of them in such cases are, who are independently assessed as having reasonably arguable cases. Often, unrepresented applicants who appear to be decent, genuine but impecunious people are reduced to floundering in complete incomprehension of the prevailing system of judicial review or the dangerous partial comprehension of those with a little knowledge of that system. Unsurprisingly, Full Courts have been slower in such cases to assert the primacy of finality of litigation considerations than in many cases where the risk of very serious personal harm is not involved. In saying this, I do not lose sight of the fact that, to degrees which may vary from place to place and time to time, there is a proportion of refugee claims which are simply legally unwarranted, and cynical attempts to subvert this country’s immigration system. Even the cynic, however, has a right to lawful treatment. In many areas of the law it is sometimes necessary, for the sake of the truly deserving, to accord concessions also to those ultimately shown to be undeserving.

166. Thus, relevant questions include:

1)     Do the new legal arguments have a reasonable prospect of success?

2)    Is there an acceptable explanation of why they were not raised below?

3)    How much dislocation to the Court and efficient use of judicial sitting time is really involved?

4)    What is at stake in the case for the appellant?

5)    Will the resolution of the issues raised have any importance beyond the case at hand?

6)    Is there any actual prejudice, not viewing the notion of prejudice narrowly, to the respondent?

7)    If so, can it be justly and practicably cured?

8)    If not, where, in all the circumstances, do the interests of justice lie?

63    Applying these principles, I consider that it is in the interests of justice to grant leave notwithstanding that the appellant was represented before the Circuit Court. In reaching this view I have given particular weight to the following considerations:

(1)    the seriousness of the consequences for the appellant as an asylum seeker depending upon the outcome of the appeal and any decision by the IAA should the matter be remitted for redetermination according to law;

(2)    the fact that from an impressionistic perspective, I do not consider that the ground lacks merit; and

(3)    the Minister did not contend that he would suffer any particular prejudice if leave were granted beyond that inevitably suffered where a new issue is raised on the appeal.

3.6.3    Legal unreasonableness: relevant principles

64    It was common ground that the IAA is not required to notify a referred applicant that it is considering taking a different view of the evidence before the delegate under the statutory regime created by Part 7AA for fast track reviews. As the Full Court held in DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12; (2018) 258 FCR 551 (DGZ16) the starting point is Part 7AA which provides that:

(1)    subject to Part 7AA, the IAA’s obligation is to review a fast track reviewable decision by considering the review material without accepting or requesting new information and without interviewing the referred applicant (s 473DB(1)); and

(2)    Div 3 is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the IAA (s 473DA).

65    As a consequence, the Court held that:

72. In our opinion, Pt 7AA contemplates that the Authority will evaluate for itself the material considered by the delegate. We do not consider that the fast track statutory regime of Pt 7AA requires the Authority to notify the referred applicant that it is considering taking a different view, adverse to the referred applicant, of the material considered by the delegate. To that extent we agree with the primary judge, at [106], that the Authority is not required to inform the appellant of specific reservations about the appellant’s case and to provide the appellant with an opportunity to respond.

66    Applying this approach, the Court held in DGZ16 that the appeal was one where the IAA had reassessed the material considered by the delegate (at [71]), and distinguished the decision in Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; (2017) 253 FCR 475 (CRY16), holding that:

70. It is to be noted that the present case is not one where the Authority has decided a point which was not the point decided by the delegate, but rather one where additional information is necessary in order to complete the review. We refer to Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210, where the Authority affirmed the decision of the delegate to refuse to grant the SHEV but on the different basis of relocation which the delegate had not addressed. Thus there may be circumstances in which it is legally unreasonable not to consider the exercise of the discretionary power in s 473DC(3).

67    In CRY16, there was no challenge to the primary judge’s finding that the IAA had not considered whether or not to exercise its powers under ss 473DC and 473DD (CRY16 at [75]). The Full Court held that it was legally unreasonable in the circumstances of that case for the IAA to fail to consider exercising its discretion under those provisions to get documents or information from the visa applicant with respect to the question of relocation for the following reasons:

82. … The legislature is to be taken to intend that the Authority’s statutory power in s 473DC will be exercised reasonably. The failure to consider the exercise of that discretionary power lacks an evident and intelligible justification in circumstances where the Authority knew that it did not have, but the respondent was likely to have, information on his particular circumstances and the impact upon him of relocation to Beirut. The Authority did not have that information because the question of relocation, either at all or to Beirut, was not explored, or the subject of findings, by the delegate. The Authority’s failure to consider the exercise of that discretionary power meant that it disabled itself from considering what was reasonable, in the sense of “practicable”, in terms of relocation. In our opinion, as a consequence, the review by the Authority under s 473CC miscarried for jurisdictional error.

68    This decision was followed by the Full Court in Minister for Immigration and Border Protection v DZU16 [2018] FCAFC 32; (2018) 253 FCR 536 at [79]-[81] (the Court) and in DPI17 v Minister for Home Affairs [2019] FCAFC 43; (2019) 269 FCR 134 (DPI17).

69    In DPI17, Griffiths and Stewart JJ (with whose reasons Mortimer J relevantly agreed at [55]) emphasised a number of points which guide the application of the ground of legal unreasonableness in this context:

37. … First, legal unreasonableness is “invariably fact dependent and requires evaluation of the evidence” … Secondly, the correct approach is to apply the relevant general principles to the particular factual circumstances of the case and not to engage in an analysis which merely involves identifying particular factual similarities or differences between individual cases …. As Thawley J pointed out in CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 (CCQ17) at [42], there are no fixed categories of circumstances in which it would be legally unreasonable to fail to consider the discretion in s 473DC. Thirdly, having regard to the clear terms of s 473DA (which provides that Div 3 of Pt 7AA and ss 473GA and 473GB are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to IAA reviews), the starting point for analysis in a case such as this which raises the ground of legal unreasonableness is not through a “natural justice lens” …. Fourthly, as Thawley J correctly stated in CCQ17, merely because there has been a failure to consider the exercise of the power in s 473DC does not of itself involve error, let alone a jurisdictional error.

38. In CCQ17 at [51], Thawley J helpfully identified the following three essential steps in determining whether an established failure to consider exercising a discretionary power was legally unreasonable:

(1)    identify the failure with precision;

(2)    examine the terms, scope and purpose of the statutory power which the decision-maker failed to consider; and

(3)    evaluate the failure to see whether it has the character of being legally unreasonable, perhaps in lacking a rational foundation or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking in common sense.

39    Each of those three steps is important but it is the third of those steps which highlights the fact that a mere failure to consider the exercise of the power under s 473DC is insufficient per se to give rise to jurisdictional error.

(emphasis added; citations omitted)

70    In DPI17, the applicant for a protection visa had claimed among other things to have been sexually assaulted by Sri Lankan officials. Although the visa applicant had given inconsistent accounts as to the details of the sexual assaults, the delegate nonetheless accepted that they had occurred and confirmed during the interview that she would place weight on these inconsistencies. The IAA affirmed the delegate’s decision. In the course of its reasons, the IAA made adverse credit findings as to the visa applicant’s sexual assault claims but did not consider whether or not to exercise its powers under s 473DC to obtain new information from the visa applicant about the assaults before making its findings. The Full Court held that the IAA’s failure to consider whether or not to exercise its power under s 473DC in respect of the issue of the sexual assaults and the relevant inconsistencies was legally unreasonable in the particular circumstances of the case: DPI17 at [45]-[47] (Griffiths and Steward JJ) (Mortimer J agreeing at [55] and [126]). While appreciating that each case must turn on its particular facts, nonetheless the reasons of the Full Court for so holding is illustrative of the circumstances in which legal unreasonableness may be established in this context. Specifically, Griffiths and Steward JJ held that:

46    As to the sexual assaults:

(1)    It would have been evident to the IAA from the extracts from the transcript of the appellant’s interview with the delegate (see [14] above) that the delegate’s acceptance of the appellant’s claim that he had been tortured and sexually assaulted by Sri Lankan officials on at least two occasions (as stated in the decision record), was based primarily on the delegate’s assessment of the appellant’s demeanour and credibility when this matter was discussed in the course of the interview with the delegate.

(2)    The IAA must have been aware of the delegate’s positive assessment of the appellant’s demeanour because the IAA member stated at [20] of his reasons for decision that he had listened to the recording of that interview.

(3)    In those circumstances, if the IAA was minded to come to a different determination on the central question whether it was satisfied that the sexual assaults had occurred, unless there was available to the IAA a sufficient independent evidentiary basis to support such a determination without the IAA itself inviting the appellant to attend for an interview and conduct its own assessment of his demeanour, it was legally unreasonable for the IAA to fail to consider whether or not it should exercise its powers under s 473DC.

(4)    As the plurality observed in Fox v Percy [2003] HCA 22; 214 CLR 118 at [30]-[31], demeanour is not the only aspect of a witness’s evidence which may lead to credibility findings. Such findings might result from inferences drawn from probative evidence or material. This is not the case here. That is because part of the IAA’s reasons for its adverse finding on the appellant’s credibility, as summarised in [35] of its reasons for decision, was based on the cumulative effect of inconsistencies and implausibilities in the appellant’s evidence, as set out by the IAA in [22] to [34] inclusively. Those inconsistencies, together with the other matters referred to in [35] of the IAA’s decision record were viewed as undermining the appellant’s credibility. That adverse finding then flowed through to the IAA’s rejection in [36] of its decision record of the appellant’s claims to have been the victim of sexual assault.

(5)    For reasons which will shortly be stated, some of the inconsistencies as found by the IAA were at odds with the delegate’s separate statement to the appellant and his representative that those particular inconsistencies were, in effect, inconsequential. Consistently with what they were told by the delegate at the end of the interview, the delegate placed no weight on them. As will shortly be explained, in the particular circumstances here, while it was open to the IAA to come to a different view on the significance of those and other inconsistencies, in the case of the inconsistencies which the delegate viewed as inconsequential (the relevant inconsistencies), it was legally unreasonable for the IAA to fail to consider whether or not to exercise its power under s 473DC in relation to those relevant inconsistencies.

47    As to the relevant inconsistencies:

(1)    Although it is true that, during the course of the appellant’s interview with the delegate, the issue arose of inconsistencies between what was stated in the statutory declaration dated 23 September 2013 and other evidence given by the appellant, the delegate explicitly stated that the “discrepancies aren’t major” and she would not put “a lot of weight on those discrepancies” because, on the whole, she viewed the appellant’s evidence as being consistent.

(2)    Presumably in reliance upon those statements, the appellant did not address the inconsistencies in his post-interview submissions. According to what the delegate said at the end of the interview, she viewed the relevant inconsistencies as inconsequential and they did not figure in the delegate’s reasons for refusing to grant the appellant a SHEV.

(3)    It is also relevant that the transcript of interview indicates that the appellant’s migration agent raised with the delegate the issue of inconsistencies and indicated to the delegate that these inconsistencies may be attributable to the fact that the agent did not have access to all the appellant’s prior statements, potentially leading to some misunderstanding.

(4)    It was open to the IAA to take a different view as to the significance of the relevant inconsistencies (bearing in mind the nature of the IAA’s review function), but in view of the matters described immediately above, the IAA was obliged to consider and determine whether or not it should exercise its discretion under s 473DC and invite the appellant to provide any “new information” relating to the relevant inconsistencies, whether at an interview or otherwise. There is nothing to suggest that the IAA turned its mind to this requirement. In the particular circumstances, it was legally unreasonable for it not to do so.

3.6.4    Disposition of the new ground of appeal

71    The new ground of appeal challenges the IAA’s findings with respect to his claims to fear harm from AB following an incident involving AB and the appellant in 2013. The IAA described the claims more fully as follows at [8] of its reasons:

•    On … April 2013 the applicant had an altercation with AB who is the husband of his former girlfriend AZ and is a Basij member. The applicant had not seen AZ since her religious family forced her to marry AB but in March 2013 they ran into each other. On … April they met in a park to talk at AZ’s instigation. AB, who knew the appellant was AZ’s former boyfriend, appeared. He slapped AZ and hit the applicant. They got into a physical altercation until the applicant pushed AB away and escaped. The applicant went to his workplace in another area rather than go to his home, as AB knew where he lived. His mother told him AB had gone to the house and made threats, then set a fire at the door of his house (a sign of adultery).

•    Prior to the Iranian New Year holiday, the applicant became engaged in discussions and debates about his religious views in a religious study class he was attending as part of a Masters degree … He made negative comments about religion. Some of his classmates were religious and belonged to the University Basij. On… April 2013, when he returned to classes after the holiday, the applicant was asked by Herasat to attend a meeting the following week to answer some questions.

•    The applicant stayed at his workplace after the incident with AB. As a result of these two events the applicant felt he was in serious trouble. His employer knew AB and was worried about what he might do. With the assistance of his employer he arranged to leave the country and departed shortly thereafter.

•    After this time, AB met the applicant’s brother once or twice and asked where the applicant was.

…

•    The applicant fears AB who is a member of the Basij and sees the applicant as a threat to his marriage.…

72    Under the heading “Factual findings”, the IAA relevantly found:

Altercation with AB

13. The applicant has been generally consistent between the arrival interview, the protection Visa application and the protection Visa interview which took place on 16 December 2106 [sic] regarding his relationship with AZ, their meeting prior to his departure in April 2013, and his altercation with AB. I do not share the delegate’s particular concerns with the plausibility of his evidence regarding this incident. I accept that the applicant met AZ in a part, that her husband AB, who is in the Basij, intervened and had a physical altercation with the applicant, and that he later went to the applicant’s home, made threats and lit a fire at the door. I am also willing to accept, as the applicant claimed in the arrival and protection visa interviews, that AB twice encountered the applicant’s brother and asked where the applicant was, although I note when asked at the protection Visa interview if AB had threatened his brother he said “no, not really”.

14. However, I find the applicant’s claim that he left Iran because he feared harm from AB somewhat exaggerated. The audio recording of the 1 July 2012 [sic] arrival interview evidences that at its conclusion the applicant stated that he had always wanted to leave Iran because of his study and work, that he wanted to improve himself and have a chance to live in other countries to be able to develop his career in his field. He said “I would put it this way that maybe this situation was not that serious that at that moment I thought about it but because in the back of my mind I was thinking of going and living outside, that incident that happened, nothing could stop me to get out of Iran and fulfil that dream as well”. The applicant said at the protection visa interview that he was not sure why he had said these things. These comments do not detract from the credibility of his claims but they imply the applicant has exaggerated the seriousness of this incident and the fear it caused.

(emphasis added)

73    By the new ground of appeal, the appellant contends that the IAA acted in a legally unreasonable manner in failing to consider seeking further information from the appellant, pursuant to s 473DC(3) of the Act, regarding the statement cited at [14] of its reasons, before finding that that statement implied that the appellant’s claim was exaggerated.

74    The appellant submitted that the “incident” referred to by the appellant:

12. …appears to be one, or possibly more than one, of a number that he claimed occurred at his arrival interview. These were,

(a)    Encounters with a man associated with the Basij who had married his former girlfriend and who threatened him and lit a fire at the appellant’s front door (AB 250-252).

(b)    Problems that he had at his University for expressing religious beliefs (AB 252-253).

(c)    The execution of relatives some years before for belonging to a political group (AB 253-254).

13. The IAA appears to have been aware from its comment in the last sentence of AB 211 [14] that the appellant could have had had more than one motivation for leaving Iran. It rejected the claim of having made religiously controversial comments at university (AB 212 [21]). The execution of relatives was self-evidently serious. The incident, as far as the IAA was concerned appears to have been that involving the Basiji. Yet, the appellant’s statement that the IAA quoted … leaves uncertain:

(a)    How seriously he viewed that incident with the Basiji, and whether there could have been continuing repercussions – he used the words, as translated, “… Maybe this situation was not that serious that at that moment…”.

(b)    The extent to which he was motivated to leave Iran because of that incident.

14. In my submission, those issues clearly arose on the material before the IAA. They went directly to the extent of the danger to the appellant and to his fear of persecution and serious harm. The part of the entry interview extracted by the IAA it AB 211 [14] was not canvassed by the delegate. In those circumstances it was necessary for the IAA to resolve these issues, or to at least consider resolving them, before coming to its conclusion that the claims were exaggerated.

75    It followed, in the appellant’s submission, that the IAA’s failure to consider seeking information from him pursuant to s 473DC(3) of the Act was legally unreasonable.

76    I do not agree for the following reasons.

77    First, contrary to the appellant’s submission, fairly read, the IAA at [14] was making factual findings only with respect to the appellant’s claim to have left Iran because he feared harm from AB.

78    Secondly, it is correct to say that the appellant’s claims to fear harm if returned to Iran because he feared harm from AB was one of his central claims, given in particular that: the threats of harm arose apparently in consequence of AB’s concern or assumption about an adulterous relationship between his wife and the appellant; that AB was a member of the Basij; and given AB’s subsequent threatening behaviour. It is also understandable that the appellant may feel aggrieved and a sense of unfairness that his claim to fear harm from AB was regarded by the IAA as exaggerated when it was not suggested that he had been afforded any opportunity to answer that proposition.

79    Nonetheless, ultimately this is a case where the IAA took a different view of the evidence before the delegate adverse to the appellant in circumstances where it was not required to inform the appellant of its concerns and provide him with an opportunity to respond under the scheme established by Part 7AA of the Act. While each case must be considered in its own particular circumstances, this is not for example a case such as DPI17 where the delegate proceeded throughout on the basis that it accepted a central tenet of the appellant’s claims and, in rejecting that tenet without considering an exercise of its power under s 473DC, the IAA had acted unreasonably given that the appellant was likely to have additional information on the issue. To the contrary, here the IAA accepted in the appellant’s favour that the claimed altercation and threatening conduct engaged in by AB towards the appellant had occurred. However, it considered the claims to fear harm as a result as exaggerated because of evidence the appellant had given at his arrival interview that the incident was not that serious and he had other motives in coming to Australia. It is true that the appellant might have sought to explain the apparent inconsistency in his evidence as to the extent to which he feared harm from AB. However, this was not a case where the IAA might have expected that the appellant could give additional evidence on a central tenet of his claims which had hitherto not been addressed by him in circumstances where it could be inferred that he had understandably not previously appreciated this might be an issue. It was simply a case of the IAA discharging its obligation to independently evaluate the appellant’s evidence.

80    Furthermore, the finding at [14] of the IAA’s reasons was not ultimately the only reason given by the IAA for rejecting his claims to fear harm from AB if returned to Iran. The IAA returned to this issue in its reasons in the context of considering whether the appellant had a well-founded fear of persecution so as to satisfy the refugee criterion in s 36(2)(a) of the Act. In this respect, the IAA found that:

40. While I accept the applicant had an altercation with AB in the past, I find the claim that AB would harm him if he returned to Iran far-fetched. On the applicant’s evidence, after the incident in which AB came to his parent’s home, the only further approach made by AB or attempt to search for the applicant was when he encountered the applicant’s brother. There is no evidence of AB having taken any official action against the applicant. The applicant claims he does not need to because he can do whatever he wants. The applicant claims that he will live his life in fear, that the only reason that AB has not done anything is because he is sure the applicant is not in the country, but if he returns AB will start to take action, and that being in the Basij he can do anything he wants and get away with it.

41. The incident with AB took place almost 5 years ago. Apart from two approaches to the applicant’s brother which appear to have occurred prior to the arrival interview in July 2013, there is no evidence of AB taking any action against the applicant. Given the passage of time, the lack of any evidence of a continued interest in the applicant and my earlier findings that the applicant had exaggerated his fear of harm from AB, I find it speculative that AB would continue to have any interest in the applicant, let alone an intention to seriously harm him. The chance of the applicant being harmed by AB or by other persons at his instigation in the reasonably foreseeable future is no more than remote.

81    As such, the IAA rejected the appellant’s claim to have a well-founded fear of persecution from AB not simply because the appellant subjectively may have exaggerated those fears but because the IAA was not persuaded on all of the evidence that those fears were objectively well-founded. This in turn was a matter which was squarely in issue before the delegate and the IAA.

82    In these circumstances, the new ground of appeal must be dismissed.

4.    CONCLUSION

83    It follows for these reasons that the appeal should be dismissed and the appellant ordered to pay the costs of the first respondent.

Associate:     

Dated:    8 May 2020