Federal Court of Australia

DZC16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 714

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of and incidental to his appeal.

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

REASONS FOR JUDGMENT

BEACH J:

1    The appellant appeals from a judgment of the Federal Circuit Court where the primary judge dismissed the appellant’s application for judicial review of a decision of the Immigration Assessment Authority affirming a decision of a delegate of the Minister refusing to grant to the appellant a temporary protection (class XD) (subclass 785) visa.

2    The appellant raises two grounds of appeal.

3    First, it is said that the primary judge erred in not finding that the Authority’s review function miscarried due to its failure to consider an omission in the translation of one of the appellant’s supporting documents.

4    Second, it is said that the primary judge erred in not finding that it was legally unreasonable for the Authority not to have considered exercising its power under s 473DC(3) of the Migration Act 1958 (Cth) to invite the appellant to give new information concerning his supporting documents.

5    For the following reasons, in my view neither ground has been made out.

Some background

6    The appellant is an Iranian citizen. He arrived in Australia on 15 September 2012 as an unauthorised maritime arrival.

7    On 8 October 2012, the appellant attended an arrival interview and then on 3 December 2012 he attended an entry interview with the relevant department.

8    On 25 November 2015, the relevant department invited him to apply for the visa.

9    On 11 January 2016, the appellant applied for the visa with the assistance of a migration agent.

10    In his supporting statutory declaration, the appellant said that his family were supporters of the government and the Islamic republic, that his father served in the Sepah and that his three maternal uncles served in the Basij.

11    The appellant said that in 2001 he joined the Basij as a volunteer, and then progressed to being a regular member. He said that in 2004 he became an active member, which included being trained in handling weapons as well as undergoing ideological and political training. He said that his role with the Basij involved promoting and enforcing acceptable Islamic standards.

12    The appellant said that at the end of 2011 he decided to intervene in the physical assault of an intoxicated man at his Basij base and told his colleagues that the proper procedures needed to be followed. But apparently his colleagues did not take kindly to the intervention, which was seen as a challenge to authority.

13    Now together with the statutory declaration there were two letters written in Farsi from the commander of his Basij base to the appellant. There were accompanying translations of the two letters by a certified translator, which the appellant was assisted in providing by the migration agent.

14    I should set out some of this material.

15    The statutory declaration provided in part:

Shortly before leaving Iran in July 2012 I received 2 very troubling letters from the Basij.

One of these letters was from the commander of the Basij base which I normally reported to. The contents of this letter alleged that the Basij had received reports of my lack of interest in co-operating with the Basij, and that I had failed to do certain things. The letter also threatened expulsion from the Basij. The allegations in the letter against me were untrue. I realised that there was a plot to get me into trouble.

The other letter, from the Basij headquarters, which I received about a week after the first letter, ordered me to report immediately at a certain Basij base to explain my conduct.

This letter confirmed my realization that there was a plot to get me into trouble with the Basij.

…

In July 2012, I received two letters from the Basij which changed my whole life.

Up to that point I had been self-employed in my own business for about 4 years. I had two employees. I was in a steady relationship and was intending to get married. I lived in my own apartment, and I was supporting my family. The contents of those 2 letters caused me to close my business, leave my apartment, family and girlfriend; and flee from Iran.

The first of these letters was from [redacted], the commander of the Basij base which I normally reported to. The contents of this letter alleged that the Basij had received reports of my lack of interest in co-operating with the Basij, and that I had failed to do certain things. The letter also threatened expulsion from the Basij. The allegations in the letter against me were untrue. I realised that there was a plot to get me into trouble.

The second letter, from the Basij headquarters, which I received about a week after the first letter, confirmed my realization that there was a plot to get me into trouble with the Basij. The letter ordered me to immediately attend at a certain Basij base to explain my conduct.

When I got those letters I checked with my friend [redacted], who worked in the administration at our base, if he knew what was happening. He confirmed that I was in big trouble. He told me about what had happened to certain other members of the Basij who had received similar letters. They disappeared. This caused me to think of those Basij members from our base who I’d not seen in a long time. When I asked [redacted] about certain members he confirmed that so and so who got letters like I did disappeared after they reported to the Basij headquarters.

What [redacted] told me and the information conveyed in the letters made me believe that the Basij perceived me as having a difference of political opinion, and that they planned to harm me.

An allegation that I was not interested in co-operating with Basij can be interpreted in Iran as opposition to Velaya e faqih, and consequently opposition to the Ayatollah. The Basij was created on the orders of the Ayatollah. Disinterest in co-operating with the organization created on the orders of the of the Ayatollah means that one is rejecting the Ayatollah. Rejection of the Ayatollah or opposition to the Ayatollah is not acceptable in Iran, and it makes you an enemy of the state. Such an allegation against a person puts that person’s life in danger. So, I understood that they wanted to harm me, and that my life was in danger.

I did not report to the Basij headquarters. I fled from Iran on 24th of July 2012, before the Basij took any actions to arrest me.

16    So, the appellant had received a letter dated 5 July 2012 from the commander of his Basij base alleging that he had received reports of his lack of interest in co-operating with the Basij and failed to do certain things.

17    This first letter, omitting formal parts, stated (certified translation):

Warning Letter

From: [location] Defence Military Base

To: [the appellant]

Greetings:

In light of the received reports regarding your lack of Interest in cooperating with basij* and refusal to take Part in street inspections as well as refusal to attend Mosque, we hereby warn you that should this continue You will be sacked from Basij.

Signed by Commander of [location] Defence Military

Base: [redacted]

18    The appellant then received a second letter on 13 July 2012.

19    This second letter, omitting formal parts, stated (certified translation):

Warning Letter

From: [location] Defence Forces

To: [the appellant]

You are requested to report to headquarters immediately upon receipt of this letter Regarding your absence from stop and search operations and security patrols.

Signed by Commander of [location] Defence forces

20    I will return to these two letters later. I have used Western dates rather than their Persian calendar equivalents.

21    Now I should say that before both the delegate and the Authority there was never any suggestion that the second letter had been mistranslated or incompletely translated.

22    After receiving the two letters, the appellant was apparently told by a friend that he was in “big trouble” and that other members who had received similar letters had disappeared. The appellant did not report to the Basij headquarters as required but instead fled from Iran.

23    The appellant said that if returned to Iran, he feared being harmed or possibly killed by the Basij, the Sepah or the Iranian government.

24    On 7 April 2016, the appellant was invited to attend an interview before the delegate. As part of this invitation the appellant was clearly told of the importance of the provision of certified translations and of the significance of the interview.

25    On 26 April 2016, the appellant was interviewed by the delegate, including about the two letters.

26    On 24 August 2016, the delegate refused to grant the visa.

27    Now the delegate accepted the validity of the visa application, the appellant’s claimed identity and that Iran was the receiving country for the purposes of his assessment.

28    And the delegate also accepted that the appellant had joined the Basij and had progressed to being an active member. The delegate accepted that the appellant had witnessed the brutality and abuses claimed in his statutory declaration and accepted the authenticity of the first and second letters produced to the department.

29    But the delegate concluded that the two letters were only asking the appellant to show cause. Further, the delegate found that they only threatened him with expulsion from the Basij.

30    Now the delegate found that the appellant had been a member of the Basij over a long period, but that he only had low involvement in the time leading up to his departure from Iran.

31    In his reasons, the delegate set out the text of the first and second letters, and then said:

I discussed the two letters that the applicant received from the Basij and which underpinned his departure from Iran to seek asylum. I put to him that the letters appeared to be of an administrative nature asking him to show cause for not performing his required duties and, considering that he was afforded the opportunity to respond, questioned how that was persecutory in nature. The applicant stated that the Basij were clever enough to couch their language in official terms and give the impression they were abiding by the law but in practise were out to persecute him. He stated he recalled a colleague in the past had disappeared under similar circumstances and feared the same would happen to him. Such fears were accentuated by a friend he had in the Basij who tipped him off.

I put to the applicant that I had difficulty in accepting that in being asked to explain himself against a charge that he was being persecuted by the Basij. I also put to him that if he had reneged on a job commitment that the organisation had him rostered on for them, they may well have had good reason to ask him for an explanation. Further, I also found it difficult to accept his claims of serious harm when the letters only threatened him with expulsion. I noted that he had already received the benefits of military service exemption and had a passport so there was less at risk. The Basij is a large organisation with a formal structure and therefore I consider it would have detailed administrative processes in place. I also put to him that he was not arbitrarily arrested or detained and therefore due process seemed to have been followed in them seeking his response.

The applicant responded that the manner in which the Basij set him up was to ensure that they gave the impression of doing things by the law so as not to draw untoward attention to them, and that was how they tended to operate.

32    As the first letter contained an allegation concerning his absence from attending mosque, the delegate then turned to that aspect. After referring to the appellant’s evidence and country information, the delegate concluded:

… I am satisfied that while the Basij may have asked the question about his lack of mosque attendance, and it was coupled with a number of other things they were enquiring about e.g. him not showing up for rostered duty, country information cited above does not support his claim of persecution as a result, nor do I consider it plausible that he was consequently exposed to the risk of harm.

33    The delegate then turned to the risk of harm for persons who came to the adverse attention of the Basij. He said:

… The applicant is found to possess a low profile within the Basij and not otherwise politically active. There is therefore little reason for him to come to the adverse attention of the authorities upon return. It is quite possible that he may be questioned in the normal course upon return in the manner of most returnees which DFAT reported to be limited to an hour or two after which the vast majority of people are released. Though DFAT reports that those attracting the attention of the authorities could be detained for longer, the applicant is assessed as a person of low profile and not posing a political risk to the authorities and is therefore not considered to be at risk of harm upon return. I also do not consider it plausible that a minor disciplinary infringement on his part could remain alive after him being out of the country for over four years. I do not find the applicant to be of interest to the Basij.

34    As I say, on 24 August 2016 the delegate refused to grant the visa. That decision was referred on the same day to the Authority for review.

35    On 14 September 2016, the appellant, through his migration agent, made a submission to the Authority. Relevantly, the submission said:

Based on information provided at the interview which was not rejected, and documents submitted in support of his application, which you have access to, the Applicant wishes to point out the following:

•    He was an active member of the Basij since 2004, and a Director of [redacted] at the Basij base since 2011 (as is evident from attachments provided in support of his claim). [The] Applicant submits that he did not have a low profile, as concluded by the Delegate.

•    He had noticed that the members at his Basij Base became more ruthless following the 2009 post election protests, and some of them had threatened to get him.

•    [The] Applicant alleged that he was tipped off by a friend in the administration department about what happened to a colleague who received similar letters. (Having regards to his role involving responsibility as Director of [redacted] [the] Applicant would have had to interact with the administration department at the base because of his role. This makes it plausible that could have had a friend in the administration department at the base).

It is the Applicant’s submission that it was reasonable for him to fear a real chance of serious harm following the receipt of the 2 letters in 2012, having regards to the knowledge gained from his experiences at the base over the 8 years as an active Basij member. His fear was well‐founded. There was a real substantial basis for his fear. It was not merely assumed or based on mere speculation.

36    I should note at this point that there was no suggestion made by either the appellant or his agent that the second letter had been mistranslated or incompletely translated; as I have said, the English translation of the text of the two letters was set out in the delegate’s reasons. Indeed such an issue only arose before the primary judge in affidavit material filed for the first time in the Federal Circuit Court proceedings.

37    On 6 December 2016, the Authority affirmed the delegate’s decision. Let me say something about the Authority’s published reasons.

38    The Authority accepted that the appellant had received the two letters and that he had done the things alleged in them. But it did not accept the appellant’s claim that “there was some plot against him based on false allegations” as, on his evidence at the interview, “the allegations in the letters that he was refusing to take part in Basij activities and follow orders were true”.

39    The Authority was not satisfied that the two letters indicated any intention to harm the appellant, or that he was perceived as opposing the Basij. In essence two reasons were given.

40    First, the documentary evidence suggested that the appellant continued to retain the trust of the Basij at least up until June 2012 such that the appellant “was not viewed with suspicion or believed to be against the Basij, and that the letters were the result of his non-attendance at scheduled duties”.

41    Second, it was said that the letters themselves do not suggest any threat of harm. The Authority said:

… The first letter threatens that the applicant will be sacked if he continues his lack of interest in cooperating, refusal to take part in street inspections and to attend mosque. On his own evidence, the applicant did not respond to this letter. The second letter, a week later, requests him to report regarding his absence from patrols. The applicant claims that his friend who worked for the Basij told him that he was in big trouble and that other persons who received such letters disappeared, and that upon hearing this he remembered certain persons who he had not seen for some time. While I accept that may be the case, I am not satisfied those persons came to some harm. It is unremarkable that persons who received disciplinary letters would no longer be present at the Basij base or participate in Basij activities, particularly given that, as demonstrated by the first letter received by the applicant, a potential consequence was sacking from the Basij. The applicant’s claim that such persons ‘disappeared’ appears speculative.

42    Now the Authority accepted that the appellant had been threatened with dismissal and was ordered to attend the Basij headquarters to explain himself. But the Authority was not satisfied that he was perceived to be against the putative principle of Velayat-e faqih, otherwise imputed with an anti-regime opinion, or that there was an intention to harm him. It was pointed out that the appellant remained in Iran for a period after the second letter and “there is no evidence of his receiving any adverse attention during that time, or of there being any further interest in him following his departure”. Further, the Authority was not satisfied that the result of the appellant’s non-response to the letters and continued lack of cooperation would have been anything other than the appellant’s dismissal from the Basij.

43    Ultimately, the Authority was not satisfied that at the time of the appellant’s departure he was of adverse interest to the Basij or other Iranian authorities or that there was any ongoing interest in him in relation to his past voicing of views about the Basij’s actions, his non-compliance with Basij orders, non-response to the two letters, or his departure from Iran following that non-response.

44    On 20 December 2016, the appellant applied for judicial review of the Authority’s decision.

45    On 18 April 2017, the appellant filed in the court below an affidavit from a translator, which said (at [4]):

I have compared the content of the 13 July 2012 letter with the Translated Version and I say that, in the Translated Version, the last paragraph of Persian text in the body of the 13 July 2012 letter has not been translated. The omitted paragraph from the 13 July 2012 letter translates into English as:

It should be noted that, if you do not attend, necessary action will be taken.

46    This was the first occasion on which the appellant had raised such a concern at any level.

47    On 25 January 2020, the primary judge dismissed the judicial review application. The evidence before his Honour included the belated evidence of the translator pointing out an omission in the translation of the second letter. Let me say something about his reasons.

48    The first ground of review below was that the Authority’s determination had miscarried because of an error in translation in the text of the second letter. The omission was the sentence “[i]t should be noted that, if you do not attend, necessary action will be taken”.

49    The primary judge rejected this ground. He found that within the statutory context the appellant had been given a meaningful opportunity before both the delegate and the Authority to present his claims that he feared harm. His Honour identified that the explanation of the relevance of the letters came from the appellant, who spoke Farsi, and at no stage did he refer specifically to the untranslated part when he was giving evidence, that is, the Farsi version that he well knew about. Further, the primary judge rejected the appellant’s contention as to the ominous effect of the omission. In summary, his Honour found that the appellant was not denied a real opportunity to present his case by the omission.

50    The second ground of review below was an allegedly unreasonable failure by the Authority to consider exercising the discretion under s 473DC(3) to invite the appellant to an interview, particularly on the issue of whether the appellant had been dismissed from the Basij. It was said that the Authority’s findings in relation to the two letters were different to the findings of the delegate.

51    Now the primary judge rejected the factual premise of the ground, that is, that the findings were different. And he held that the Authority’s conclusion was in essence the same conclusion that had been reached by the delegate in relation to the two letters. His Honour concluded that the bases for the findings in relation to the two letters were not different such that it was legally unreasonable for the Authority not to consider exercising its discretion under s 473DC(3).

52    Accordingly, the primary judge dismissed the application.

The present appeal

53    The appeal from that decision essentially raises two grounds of appeal which I summarised at the outset.

Ground 1 – mistranslation of second letter

54    It is said that the Authority failed to carry out its review function in failing to consider the translation error.

55    The appellant says that there was a clear and material error in the purported translation of the second letter. The final sentence of Farsi text in the body of the original second letter was not translated, which said “[i]t should be noted that, if you do not attend, necessary action will be taken”.

56    The appellant says that the error was material. Whereas the first letter stated that the appellant would be dismissed if he continued to show a lack of interest in cooperating with the Basij, it is said that the untranslated threat contained in the second letter appeared to be an escalation of the original threat, the precise details of which were deliberately left to the appellant’s imagination.

57    It is said that the second letter, correctly translated, contained what the Authority said was absent, namely, the suggestion of a threat of harm.

58    It was said that the error in the translation of the second letter meant that the Authority was not able to consider the threat that had been set out in that letter in terms and therefore was not able to deal with the threat that if the appellant did not report to the Basij “necessary action will be taken”.

59    The appellant said that his Honour’s reasoning was to the effect that the appellant would have been able to read the Farsi text in the original second letter and would have been aware of the translation error, but nonetheless provided the letter to the department and did not bring the error to the delegate’s attention. But it is said that, as acknowledged by the primary judge, the appellant could not read English and, in those circumstances, the appellant could not have made his own assessment of the accuracy of the purported translation of the second letter. I would say now that this submission is a distortion of his Honour’s reasons. The primary judge did not reason to the effect attributed to him. The primary judge’s point was that the appellant’s explanation in his evidence was done by reference to the Farsi original which, of course, contained the untranslated part. And there was no specific reference to that part as constituting or manifesting any escalated threat.

60    It is also said that his Honour reasoned that the untranslated portion of the second letter did not bear the “ominous or dire character” ascribed to it, and anything more than the threat already made in the first letter that non-compliance would result in the appellant being dismissed.

61    But the appellant says that the point was not that the Authority might have taken that position. Rather, the point was that it was for the Authority to consider the review material. The error in translation meant that it had failed to deal with the substance of the appellant’s claim.

62    I would reject this ground of appeal.

63    Let me begin with some preliminary points.

64    First, in one sense the untranslated sentence was evidence before the Authority that it did not consider. But the better interpretation of events is that no translated sentence was before the Authority. So, this was an absence of evidence before the Authority, rather than a scenario of evidence before it which it failed to take into account.

65    Second, one had here the absence of a translation rather than a mistranslation concerning the omitted sentence. But it may be accepted that if one took the second letter in toto, to omit from the translation the omitted sentence could be said to be a mistranslation of the second letter.

66    Now in my view, the “Authority [was] not disabled from performing its duty to consider the review material by [any] translation error that might exist in any part of the review material” (DVO16 v Minister for Immigration and Border Protection (2021) 388 ALR 389 at [17] per the plurality).

67    Moreover, I do not see how it can be sensibly said that the Authority failed to carry out its review function when there was no evidence before it of the translated omitted sentence, and particularly in circumstances where it was the appellant and his migration agent that had proffered the translation in the first place and where neither the delegate nor the Authority had been put on notice that there may have been something wrong with the translation.

68    Further, the Authority did not fail to deal with the substance of the appellant’s claims. And as in DVO16, the omission could not have borne on the reasonableness of the course adopted by the Authority and nor did it result in the Authority failing to understand and consider the substance of the appellant’s claims. Indeed, both the delegate and the Authority understood the appellant’s claims and properly considered them.

69    Let me say something further about DVO16 which frankly does not assist the appellant.

70    First, as the plurality said (at [17]):

The Authority performs its duty to consider the review material provided to it by the Secretary by examining the review material physically provided to it so as to form and act on its own assessment of the relevance of that material to the review of the referred decision. It is then up to the Authority to give each part of the material that it thinks relevant such weight in making findings of fact as it thinks is warranted in arriving at its decision on the review. The Authority is not disabled from performing its duty to consider the review material by translation errors that might exist in any part of the review material.

71    So even if there was a translation error, that is not necessarily disabling.

72    Second, I am not here dealing with a mistranslation in the transcript of a protection interview. Clearly such a mistranslation could potentially contaminate the process before the delegate and, if provided to the Authority, could potentially affect its review function. But that is not my case. Here, I am dealing with a translation of the second letter provided to the delegate by the appellant and his migration agent. The delegate correctly dealt with that translation, and so too the Authority.

73    Third, I am not dealing with the case where as a result of any mistranslation the delegate or the Authority failed to understand and therefore to consider the substance of a claim made by the appellant. Both the delegate and the Authority well understood and dealt with the appellant’s claim.

74    Fourth, I am not dealing with the case where the department, delegate or anyone else on the Minister’s side of the ledger gave wrong information to the Authority. The translation which was before both the delegate and the Authority was the appellant’s own document.

75    Fifth, I am not dealing with a scenario where either the delegate or the Authority made adverse findings against the appellant with knowledge of the translation omission. In my view, I am nowhere near the scenarios discussed by the plurality in DVO16 at [20] to [23].

76    Let me now say something further about the omitted sentence:

It should be noted that, if you do not attend, necessary action will be taken.

77    First, the phrase “[i]t should be noted that” seems to be bureaucratic speak. It hardly bespeaks a physical threat.

78    Second, the phrase “necessary action will be taken” in the context of the second letter and also the first letter is most likely a reference to action such as disciplinary measures or dismissal.

79    Of course I accept that such points go to questions of merit or materiality.

80    Third, the appellant never perceived the untranslated version of this omitted sentence as being expressly physically threatening. Rather he perceived the letters as being couched in official terms and surreptitiously. As the delegate recorded:

I discussed the two letters that the applicant received from the Basij and which underpinned his departure from Iran to seek asylum. I put to him that the letters appeared to be of an administrative nature asking him to show cause for not performing his required duties and, considering that he was afforded the opportunity to respond, questioned how that was persecutory in nature. The applicant stated that the Basij were clever enough to couch their language in official terms and give the impression they were abiding by the law but in practise were out to persecute him.

81    Now the appellant had the complete untranslated Farsi versions of both letters before him at the time he was before the delegate and at the time he made his statutory declaration. Clearly, he was not attaching any particular direct threat to the Farsi version of the omitted sentence, over and above the rest of the contents of the two letters. As he said in his statutory declaration at [7], [8] and [64] concerning the second letter:

The other letter, from the Basij headquarters, which I received about a week after the first letter, ordered me to report immediately at a certain Basij base to explain my conduct.

This letter confirmed my realization that there was a plot to get me into trouble with the Basij.

…

The second letter, from the Basij headquarters, which I received about a week after the first letter, confirmed my realization that there was a plot to get me into trouble with the Basij. The letter ordered me to immediately attend at a certain Basij base to explain my conduct.

82    Clearly, the Farsi version of the omitted sentence in the second letter was given no greater significance by the appellant himself than other parts of the two letters.

83    Now the appellant says that the omitted sentence (if it had been translated) was corroborative detail supporting his claim. But as I say, in my view it added little to the landscape by reason of the points that I have just made in the preceding paragraphs. But in any event, in substance this was corroborative detail that had been omitted by the appellant and his agent. I do not see how the Authority committed any error, let alone a material error that could have risen to the level of jurisdictional error.

84    In summary, in my view both the delegate and the Authority dealt with the claim arising from the two letters in a manner that has not been successfully impugned.

85    Finally, I cannot leave this topic without making a reference to ss 5AAA(1), (2) and (4) which at the relevant time provided:

(1)    This section applies in relation to a non-citizen who claims to be a person in respect of whom Australia has protection obligations (however arising).

(2)    For the purposes of this Act, it is the responsibility of the non-citizen to specify all particulars of his or her claim to be such a person and to provide sufficient evidence to establish the claim.

…

(4)    To remove doubt, the Minister does not have any responsibility or obligation to:

(a)    specify, or assist in specifying, any particulars of the non-citizen’s claim; or

   (b)    establish, or assist in establishing, the claim.

86    These provisions are, of course, nowhere near determinative of this ground, but nevertheless fortify my conclusion.

87    In my view, no error was made by the Authority. Further and in any event, any such error was not material. His Honour correctly rejected this challenge. This ground of appeal is rejected.

Ground 2 – failure to consider or exercise any s 473DC(3) power

88    It is not in dispute that the s 473DC(3) power is conferred on the implied condition that it is to be exercised within the bounds of reasonableness, and I shall proceed accordingly.

89    The appellant asserts that the Authority’s reasoning raised issues that the appellant did not have the opportunity to address in his interview with the delegate.

90    It is said that the delegate accepted that the two letters were legitimate and did not dispute what they said at face value, including that the appellant had shown a lack of interest in co-operating with the Basij. The delegate also did not dispute the appellant’s evidence that a colleague who received a similar letter had “disappeared”.

91    But it is said that the Authority found that the lack of co-operation alleged in the letters was contradicted by the documentary evidence showing that he had been commissioned up until June 2012 as a “director of [redacted]” which showed that he still retained the trust of the Basij. Further, the Authority found that the disappearances of other Basij members who received similar letters was unremarkable and simply reflected the fact that they were no longer present at the Basij base.

92    But the appellant says that these were matters that the delegate had not relied upon in his decision and which the appellant was not given the opportunity to address.

93    Accordingly, in the appellant’s submission it was not legally reasonable for the Authority not to have invited the appellant to give new information in respect of these matters.

94    It is said that in DPI17 v Minister for Home Affairs (2019) 269 FCR 134, Griffiths, Mortimer and Steward JJ noted that there was no general principle that the Authority is never obliged to provide the referred applicant with an opportunity to respond if the Authority departs from the delegate’s course of reasoning, and found in that case that the failure of the Authority to consider inviting the appellant to comment upon inconsistencies in the referred applicant’s evidence, not relied upon by the delegate, was plainly unjust and therefore legally unreasonable.

95    Further, the appellant said that although legal unreasonableness is not to be viewed through a procedural fairness lens, the two concepts can overlap. I would say now that I do not propose to linger on such an academic fancy.

96    I would reject this ground as well.

97    First, the primary judge properly distinguished the facts in this case from each of the authorities to which he had been referred below.

98    Second, in truth the facts before me are nowhere close to the scenarios discussed in DPI17 and ABT17 v Minister for Immigration and Border Protection (2020) 383 ALR 407 concerning differences in credibility assessments between the delegate and the Authority that might justify enlivening the s 473DC(3) power.

99    Third, in any event the Authority can make different findings of fact from the delegate without the need for exercising any s 473DC(3) power. But in any event, in the present case the differences were modest and similar conclusions were ultimately reached concerning the two letters and the appellant’s claims.

100    Fourth, in all the circumstances and applying the principles set out in DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91 at [106] to [110] per Beach, O’Callaghan and Anastassiou JJ, it was not legally unreasonable for the Authority not to consider exercising or failing to exercise the s 473DC(3) power. Accordingly, this second ground also fails.

Conclusion

101    For the foregoing reasons, the appeal must be dismissed with costs.

Associate:

Dated:    28 June 2021