Federal Court of Australia

FFR19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 894

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellants pay the first respondent’s costs as agreed or taxed.

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

REASONS FOR JUDGMENT

MARKOVIC J:

1    This is an appeal from orders made by the Federal Circuit and Family Court of Australia dismissing an application for judicial review of a decision of the second respondent (Tribunal): see FFR19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 3. The Tribunal had affirmed a decision of a delegate of the first respondent (Minister) not to grant protection visas to the appellants.

background

2    The first and second appellants are respectively husband and wife and are citizens of Iran.

3    On 24 March 2015 the appellants applied for protection (Class XA) visas. Each of the husband and wife raised protection claims although the wife was listed as a member of the husband’s family unit.

4    In their applications to the Minister’s department the husband’s claims for protection were based on his religion and as a member of a particular social group, namely people who have been extorted by the Basij and the Sepah and coerced into doing further illegal acts to avoid criminal persecution. In relation to the latter, the husband claimed that he had been found to be in possession of alcohol and as a result was extorted for money. He said that he had purchased some alcohol on his way home after work and, after doing so, he stopped off at the chemist in his neighbourhood. At the time he was wearing a suit, tie and green sweater. He was detained and threatened by the Basij and agreed to pay money to his captors to ensure his release.

5    In a submission dated 24 March 2015 provided on behalf of the appellants, under the heading “Westernised” Iranians and “Immoral Behaviour”, the appellants’ representative quoted from a Department of Foreign Affairs and Trade (DFAT) country information report dated 29 November 2013 (2013 DFAT Report) at cl 3.60 as follows (emphasis in original):

‘Westernised’ Iranians an ‘Immoral Behaviour’

3.60    Authorities can take a heavy-handed approach when they periodically enforce standards of Islamic conduct in the community, including Islamic dress and public appearances with non-family members of the opposite sex. Enforcement can be unpredictable and may be related to the prevailing political atmosphere of the time. It is therefore difficult to make an overall assessment of the treatment of ‘Westernised’ Iranians. However, it is relatively common for youth that do not wear traditional Islamic dress to experience some form of low-level harassment from security authorities, such as being subjected to searches, car checks and verbal warnings for dress and behaviour.

6    On 10 November 2016 a delegate of the Minister informed the appellants that their applications for protection visas had been refused. The delegate had “doubts that the [first appellant] encountered problems with the Basij”. The delegate referred to the husband’s claim to have been wearing a tie and green sweater at the time he had alcohol in his car. As to that the delegate said:

I note that the sale of ties were banned in Iran after the 1979 revolution, as they were reportedly viewed as a symbol of western decadence, and although often ignored, religious police have enforced the ban, and nearly all men in Iran do not wear ties. Furthermore, I have noted that the colour green is strongly associated with support of the ‘Green Movement’ (Persian: Jonbesh-e Sabz), a large opposition protest movement which rose up spontaneously in June 2009 against the apparently rigged re-election of Ahmadinejad as President, adopting the Green campaign colour of Mir Hussein Mousavi, who they perceived as being the true winner of the election.

    (Footnotes omitted.)

7    On 1 December 2016 the appellants sought review of the delegate’s decision in the Tribunal.

8    On 2 September 2019 the appellants’ representative provided a submission to the Tribunal and on 9 September 2019 the appellants appeared before the Tribunal.

9    On 22 November 2019 the Tribunal affirmed the delegate’s decision.

The Tribunal’s decision

10    The Tribunal set out the evidence and submissions made by the appellants, both to the Minister’s delegate and to it: at [9]-[75].

11    It then turned to consider the appellants’ claims, first addressing the husband’s claims. In doing so it commenced by noting the need for balance when considering an applicant’s account of events and assessing details and inconsistences in evidence. It also acknowledged the medical evidence before it in relation to treatment of the husband for mental health issues but noted that the husband had indicated that “he had no health issues that would preclude him from attending the hearing”. The Tribunal observed that the inconsistences or implausibilities it had noted could not be explained by any medical condition.

12    Overall the Tribunal found the husband’s evidence about his claims to lack credibility. It concluded that he was not a reliable, credible and truthful witness and that he had fabricated his claims: at [80].

13    Next, the Tribunal addressed the husband’s claim to fear harm from the Basij. It did not accept that the husband had ever been stopped by the Basij for possession of alcohol or that he was subsequently blackmailed into providing sensitive financial information about individuals within his company.

14    In relation to the husband’s claim that the Basij searched his car and located alcohol in it, at [82]-[83] of its reasons the Tribunal said:

82.    I find it incredibly coincidental that in a city of nine million people the applicant was zeroed in on by the Basij for a search of his boot at the very time he had alcohol there. I do not accept that it was because he was wearing a tie and a green jumper – even if I were to accept that he was wearing one it is not illegal and the member has seen Iranian men wearing ties on public transport in Tehran without eliciting any interest from people. Nor can I find any country information, nor was any provided to me that men wearing green jumpers were or are imputed with connections to the 2009 protest movement.

83.    I also do not accept that they may have seen him buying the alcohol. Given the applicant described the method of purchasing alcohol it is reasonable to believe that the focus of the Basij would have been on the alcohol seller rather than the purchaser given the significantly larger stockpile they could have retrieved (and perhaps bribe they could have elicited) from the seller. I have taken into account what he claimed was correspondence from an attorney in Iran regarding his possible court case (folios 60-64) but lend them little weight. They could have been made on any home computer and I lend more weight to the implausibility of the claim itself – I also note that one letter contains reference to consultation over ‘wearing a tie in public’, which is not illegal in Iran.

15    As the Tribunal did not accept that this event occurred it found that it followed that the husband was never asked for a bribe or visited at his workplace by people sent by the Basij.

16    At [86] of its reasons the Tribunal expressed its doubt about the husband’s claim that the Basij required him to provide financial information about his company’s managers to them. This was for two reasons: first, because of the nature of the Basij, essentially a neighbourhood based militia whose purpose was to suppress dissent and protect revolution; and secondly, because it did not accept that the husband would have been in a position to know the private financial information of the company’s managers given that it had found that he was just an ordinary employee.

17    The Tribunal placed little weight on a letter the husband provided which he claimed was a job offer promoting him to manager of the budgeting and planning department.

18    The Tribunal also rejected the husband’s claim that he had incriminating photos of a Sufi leader in his home or a video saying that his wife had converted to the Bahá’í faith that were taken by the Basij and used to blackmail him. The Tribunal did not accept that the husband was of any interest to security authorities in Iran or that the authorities had been searching for him or asking his family about his whereabouts. It considered that its finding to that effect was supported by the fact that the husband and wife individually had visas for refugee accepting countries but did not travel there. It did not accept that they did not want to leave one another behind given that they could have travelled to a visa free entry country together and claimed asylum. The Tribunal also noted that the husband had successfully applied for a new Iranian passport without any problem and found that his willingness to engage with the Iranian government for that purpose, and the government’s willingness to issue him with a passport, was further evidence that he was of no interest to the authorities.

19    The Tribunal then considered the husband’s claim to fear harm because of his political activity which was contrary to the Iranian regime. It found that the husband had engaged in that activity after arriving in Australia for the sole purpose of strengthening his refugee claim and that it was therefore required by s 5J(6) of the Migration Act 1958 (Cth) to disregard it.

20    The Tribunal also considered the wife’s individual claims. However, as the Tribunal had found that the alleged raid on the appellants’ home had never occurred and that the husband was not being blackmailed as claimed, it did not accept that the wife would be imputed with having converted to the Bahá’í faith or being a member of a Sufi movement. In addition, the Tribunal did not accept that the wife would be imputed with being a political activist against the regime because members of her family had been politically active 20 years ago and had been granted asylum in another country.

21    Having regard to all of the evidence and the appellants’ claims, both singularly and cumulatively, the Tribunal concluded that the appellants did not have a well-founded fear of persecution for any Convention reason either at that time or in the reasonably foreseeable future and thus that they did not satisfy s 36(2)(a) of the Migration Act. It also concluded that they did not satisfy the complementary protection criterion in s 36(2)(aa) of the Migration Act.

The federal circuit court proceeding

22    The appellants applied to the Federal Circuit Court for judicial review of the Tribunal’s decision.

23    They relied on an amended application filed on 11 August 2021 in which they raised three grounds of review. However, only ground 2, which is in the following terms, is relevant to the appeal:

2.    The second respondent’s decision is affected by jurisdictional error as it has failed to comply with Ministerial Direction No 84.

Particulars

The Tribunal failed to take into account paragraph 3.60 of the DFAT Country Information Report - Iran 29 November 2013 which provided that “it is relatively common for youth that do not wear traditional Islamic dress to experience some form of low-level harassment from security authorities such as being subjected to searches, car checks and verbal warnings for dress and behaviour.”

(Underlining omitted.)

24    The primary judge noted that the appellants’ main argument was that compliance with Direction No 84 - Consideration of Protection Visa Applications, which applied to the Tribunal, required the Tribunal to take into account the 2013 DFAT Report. However, the appellants’ submissions was said to overlook the fact that the 2013 DFAT Report was not the operative report for the purposes of Direction No 84 and, rather, that a later report published by DFAT was the operative report at the time for the purposes of that Direction: FFR19 at [66].

25    At [67]-[68] the primary judge said:

67    In BMP15 v Minister for Immigration and Border Protection the Federal Court referred to the same paragraph noting the replacement of an earlier DFAT report with an updated report and observed that “in those circumstances, there is only one DFAT Report that must be taken into account in order to comply with Ministerial Direction No 56. At the time of the Tribunal’s decision, that was the 2015 DFAT Report.” In AYC18 v Minister for Immigration and Anor (No.2) I referred with approval to O’Callaghan J’s statement. It is said to follow that the Tribunal may breach s 499 of the Migration Act and the applicable direction made under that provision if it fails to take into account the “one DFAT Report that must be taken into account”.

68    In this case, at the time of the Tribunal’s decision in 2019, the “only one DFAT Report that must be taken into account in order to comply with Ministerial Direction No [84]” was the 2018 DFAT report because that report replaced the earlier reports including the 2013 report which the applicants now rely on. As the applicants concede, the Tribunal referred to the Direction, correctly summarising what it required, and then referred specifically to the 2018 DFAT report (at footnotes 3 and 5 to [103] and [105] of its reasons) where it was relevant.

26    The primary judge concluded that there was no failure to comply with Direction No 84 as alleged by the appellants because the obligation in Direction No 84 did not attach to the 2013 DFAT Report and the Tribunal took into account the report which it was required to take into account by Direction No 84, where relevant: FFR19 at [69]. At [75] the primary judge relevantly said:

…First, Ground 2 cannot in my view succeed in the face of the Federal Court decision in BMP15. In their submission in reply, the applicants suggest that that case was wrongly decided but, of course, that submission can only be made as a formality. In my view, I am bound by the decision in BMP15. In my view, there can be no breach of the Direction by failing to consider an outdated version of a DFAT country report, provided that the most recent country report has been considered. In the present case, it was.

the appeal

27    By notice of appeal filed on 18 October 2021 the appellants raise a single ground of appeal challenging the primary judge’s findings in relation to ground 2 of their amended application relied on in the Federal Circuit Court as follows:

His Honour erred by dismissing Ground 2 of the application before him and, in particular, erred by finding that the Administrative Appeals Tribunal (the tribunal) had not made a jurisdictional error.

Particulars

(i)    His Honour at [75] considered himself bound to apply BMP15 v Minister for Immigration and Border Protection [2018] FCA 1291 (BMP15) when concluding that the tribunal did not fail to consider an earlier country information report because it had considered the most recent version.

(Ii)    BMP15 was wrongly decided because, among other reasons, the proper construction of Ministerial Direction No. 84 (applicable to this case) did not preclude consideration of an earlier country information report.

(iii)    His Honour ought to have concluded that, in the circumstances of this case, the tribunal had failed to consider an earlier country information report in its assessment of the appellants' claims.

BMP15 v Minister for Immigration and Border Protection [2018] FCA 1291

28    As the decision in BMP15 v Minister for Immigration and Border Protection [2018] FCA 1291 is central to the appeal, before proceeding further it is convenient to set out the Court’s findings.

29    In that case the appellant argued that the Federal Circuit Court had erred in failing to find that the Tribunal failed to comply with s 499 of the Migration Act because it failed to take into account the most recent country information assessment prepared by DFAT and it took into account an irrelevant consideration, namely a superseded DFAT country information report for the relevant country, Sri Lanka, and thus fell into jurisdictional error.

30    Justice O’Callaghan accepted those submissions. His Honour referred to Ministerial Direction No 56 dated 21 June 2013, the predecessor to Direction No 84, which applied at the time. Direction No 56 was made under s 499(1) of the Migration Act. His Honour noted that Direction No 56 required a decision maker to take into account a country information report prepared by DFAT for the purposes of protection status determination processes. Relevantly, at [33] his Honour said:

33.    Returning to ground 3, I accept the appellant’s submissions set out above. Section 499(2A) of the Migration Act requires a person or body (which relevantly includes the Tribunal) to comply with ministerial directions made under s 499(1) of the Migration Act. Ministerial Direction No 56 of 21 June 2013, which is made under s 499(1) of the Migration Act, requires that a decision maker must take into account a country information report prepared by DFAT for the purposes of protection status determination processes. It states:

… 3. Where the Department of Foreign Affairs and Trade has prepared a country information assessment expressly for protection status determination purposes, and that assessment is available to the decision maker, the decision maker must take into account that assessment, where relevant, in making their decision. The decision maker is not precluded from considering other relevant information about the country.

The 2015 DFAT Report, at paragraph 1.1, states that “The country report replaces the previous DFAT country report on Sri Lanka dated 3 October 2014”, and the DFAT Country Report – Sri Lanka dated 3 October 2014 (the 2014 DFAT Report) contains a correlative provision stating that it replaced the 2013 DFAT Report. Therefore, in those circumstances, there is only one DFAT Report that must be taken into account in order to comply with Ministerial Direction No 56. At the time of the Tribunal’s decision, that was the 2015 DFAT Report.

31    At [34]-[35] of BMP15 his Honour continued:

34    By relying on the 2013 DFAT Report and failing to consider the relevant section of the 2015 DFAT Report (notwithstanding that the relevant section of the 2015 DFAT Report was extracted at [81] of the Tribunal’s reasons), the Tribunal failed to comply with Ministerial Direction No 56. It follows, as the appellant submits, that the Tribunal committed jurisdictional error by failing to comply with its mandatory obligation in s 499(2A) of the Migration Act. Alternatively, it took into account an irrelevant consideration (see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 232 at [82]-[84]). This error could also be characterised as a failure to consider the relevant consideration, being the bail procedures set out in the 2015 DFAT Report.

35    The Minister accepted that the Tribunal was required to rely upon the most recent and up-to-date country information, but submitted (in the course of oral argument) that “there is nothing wrong with it relying upon older country information, provided that older country information isn’t flatly wrong and contradicts more recent information.” So much may be accepted. The Ministerial Direction expressly provides that “[t]he decision maker is not precluded from considering other relevant information about the country.”…

32    However, O’Callaghan J noted that on the particular issue, being that of bail, the earlier DFAT report, to which the Tribunal had had regard, set out a procedure that was critically different to that described in the later DFAT report and that the Tribunal did not explain why, although it was aware of the relevant parts of the later report, it determined that issue by reference to the earlier report. Accordingly, his Honour concluded that, even though the Tribunal had set out parts of the later report in its reasons, it could not be said to have “taken into account” those parts within the meaning of the Ministerial Direction.

The appellants’ submissions

33    The appellants submitted that BMP15 was wrongly decided. They contended that O’Callaghan J’s analysis was not essential to the conclusion his Honour reached in that case and that, critically, there the Tribunal had not complied with the Direction because it had not had regard to the most recent DFAT report which contained the relevant information.

34    The appellants submitted that the question in the present appeal is: to which DFAT country information report did, or does, the obligation in Direction No 84 attach? In BMP15 the Court noted the replacement of an earlier DFAT report with an updated report and, on that basis, it concluded that “in those circumstances there is only one DFAT Report that must be taken into account in order to comply with Ministerial Direction No 56” which at the time of the Tribunal’s decision was “the 2015 DFAT Report”.

35    The appellants contended that the mere fact that a DFAT report has been updated does not mean that there is only “one DFAT Report that must be taken into account” for the purposes of compliance with the s 499 direction. They said that the Tribunal’s obligation is to comply with the direction and not the introductory words of a DFAT report; it is the terms of the applicable direction which must be carefully considered; Direction No 84 refers to “a” country information assessment report and not “the” report, “the operative”, “the most current” or “recent” report; and only two conditions for a country information assessment are specified, that the assessment must be prepared for protection status determination purposes and that it is available to decision makers. The appellants contended that once those conditions are met then the country information assessment “must” be taken into account where relevant.

36    The appellants then focussed on the words “where relevant” in Direction No 84 and submitted that, while the Tribunal enjoys significant latitude in deciding what is relevant, that task is not without constraints, including the nature and content of an applicant’s particular complaints. The appellants submitted that information in the 2013 DFAT Report was relevant to the husband’s specific circumstances, which was why his representative drew attention to it.

37    The appellants submitted that it was not fatal to their case that the 2013 DFAT Report was not the most recent or operative report for the purposes of Direction No 84. They acknowledged that it had been replaced by updated reports published in 2016 and 2018 (which I will refer to respectively as the 2016 DFAT Report and 2018 DFAT Report) but contended that the 2013 DFAT Report could not simply be dismissed as general or apparently outdated country information and that country conditions had evolved and DFAT reports had become increasingly detailed. After extracting parts of the 2016 DFAT Report and the 2018 DFAT Report concerning the “Green Movement”, the appellants submitted that, insofar as what the husband claimed to have happened to him in 2011, the 2013 DFAT Report was objectively the most relevant and thus the most appropriate for assessing an applicant’s claims at the time they were alleged to have occurred. They said that as the Direction itself contemplates, such an approach does not preclude the Tribunal also considering the most recent DFAT country information available to it at the time of its decision but that the Tribunal did not expressly consider relevant country information concerning the position of “westernised Iranians” or the harassment of individuals by reason of their dress as detailed in any of the DFAT reports, including the 2018 DFAT Report. The appellants submitted that there was no evidence of any evaluation exercise considered necessary before reliance on older information would be within the Tribunal’s jurisdiction and no evidence of any weighing process in the Tribunal’s reasons which might have justified reliance on the older report.

38    The appellants submitted that it thus ought to be inferred that the Tribunal failed to have regard to and/or did not engage in a meaningful way with information in the 2013 DFAT Report and that, in relation to the critical question of the application of the relevant country information to the issue decided at [82]-[83] of the Tribunal’s reasons, it is apparent that the Tribunal decided whether the alleged incident occurred by reference to no authoritative country information. They said that the 2013 DFAT Report was conspicuous by its absence and that it can be inferred that the Tribunal completely overlooked its existence, having regard to its content and it being “central to the subject matter of the appellants’ claims”.

39    The appellants submitted that where an incident is claimed to have occurred in the past, the country information closest in time to that incident would likely have considerable probative value. They contended that, alternatively, if it could be inferred that the Tribunal considered the 2018 DFAT Report at [82]-[83] of its reasons, because that report had been cited elsewhere, then the 2013 DFAT Report may be considered to be “for current purposes, different in a critical respect” to the 2018 DFAT Report (referring to BMP15 at [35], [37]). In that case, according to the appellants, it became incumbent on the Tribunal to indicate which report it preferred, giving reasons.

40    The appellants also submitted that the primary judge erred by considering himself bound by BMP15 when the factual circumstances were properly distinguishable. BMP15 considered whether the Tribunal failed to take into account the most recent country information assessment, concluded that it had, and that the Tribunal erred by taking into account an irrelevant consideration, being a superseded DFAT report, insofar as it diverged from the most recent report. The appellants submitted that the Tribunal can take into account historical country information where necessary and that the particular circumstances of a case may permit it to refer to an earlier DFAT report, provided that information is not wrong or contradicted by more recent information. They contended that Direction No 84 should thus be interpreted so as to permit reference to superseded DFAT reports and it is open to decision makers to rely on superseded reports where the most recent report is silent on the relevant issue and that silence is not indicative of a change in circumstances. They said that the fact that a later report replaced an earlier one is not definitive.

41    The appellants submitted that the incident which the Tribunal was considering allegedly occurred in October 2011 and that the 2013 DFAT Report addressed the situation in Iran over the preceding few years. Given the appellants’ representatives’ submissions were dated 23 March 2015, they referred to the 2013 DFAT Report, being the most recent DFAT report available at that time. The husband claimed, consistently with that country information, that youth who do not wear traditional dress experience some form of low level harassment from security authorities and the 2013 DFAT Report was provided by the appellants’ representative in support of a specific claim which the Tribunal was required to consider.

42    The first appellant said that the claim to have been persecuted as a “westernised” Iranian had been consistently made to the delegate, the Tribunal and the Court and it was therefore not appropriate to dismissively characterise the 2013 DFAT Report as old, outdated or superseded. Consistently with the approach in Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 at [74], the appellants contended that “it cannot be universally true for the purpose of compliance with Direction No 84 that there is only one DFAT report which must be taken into account by the Tribunal”.

Consideration

43    The appellants contend that the primary judge erred in three ways. It is convenient first to consider their central submission that BMP15 was wrongly decided.

44    As set out above, in BMP15 O’Callaghan J held (at [33]) that there is only one DFAT report to be taken into account in order to comply with the prevailing direction made under s 499 of the Migration Act, which in that case was Direction No 56. There the error in the Tribunal’s approach was that, in relation to the relevant issue, it had regard to an earlier DFAT report which had been replaced by the later report.

45    It was not in dispute that the measure for determining whether a decision of a single judge sitting in the appellate jurisdiction of this Court should not be followed by another single judge exercising the same jurisdiction is high. As Allsop CJ said in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 (2021) 287 FCR 181 at [30]:

Certainly, it is appropriate that another judge sitting as a single judge on appeal give significant respect to any earlier single judge appellate authority (not otherwise supported by Full Court authority) and not depart from it unless convinced of error and of the need to do so, in the language of currency: that it is plainly wrong.

(Despite the High Court in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 96 ALJR 497 stating that the reasoning in, among others, FAK19 ought not be adopted, that could not be taken to extend to the above statement of principle.)

46    In other words in order for the appellants to succeed in their contention that BMP15 was wrongly decided, I must be satisfied that it is plainly wrong.

47    The power to make directions is found in s 499 of the Migration Act which relevantly provides that:

(1)    The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:

(a)    the performance of those functions; or

(b)    the exercise of those powers.

…

(2A)    A person or body must comply with a direction under subsection (1).

48    It was not in dispute that the Tribunal is a body for the purposes of s 499(2A) of the Migration Act which must comply with any relevant direction: see Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583 at 591.

49    At the time the Tribunal made its decision in this matter Direction No 84 was in place. It was made under s 499 of the Migration Act and revoked Direction No 56. It was the now superseded Direction No 56 which was the subject of consideration in BMP15.

50    Direction No 84 relevantly states:

Where the Department of Foreign Affairs and Trade has prepared country information assessment expressly for protection status determination purposes, and that assessment is available to the decision maker, the decision maker must take into account that assessment, where relevant, in making their decision. The decision maker is not precluded from considering other relevant information about the country.

51    In BMP15 the Court considered the equivalent clause in Direction No 56. I pause to note that the terms of the relevant clause in Direction No 84 are slightly different to those in Direction No 56 in that in the latter the word “a” appeared before the words “country information assessment” (see [30] above). However, that slight difference is of no consequence.

52    Contrary to the appellant’s submissions I would not conclude that the decision in BMP15 is wrong, let alone plainly wrong. The appellant’s argument focusses on the use of the word “a” in referring to “a country information assessment report”, as opposed to use of the definite article “the” report or terms such as “the operative” or “most current report” report. However, putting to one side that the word “a” has been omitted from the text of the applicable clause in Direction No 84, the appellant’s argument cannot succeed. It ignores the use of the words “that assessment”, in two instances, when referring to the report that must be taken into account. Considering the clause as a whole, its use of the singular, i.e. “that” twice appearing in Direction No 56, supports the construction given to it in BMP15, namely that there is only one DFAT report which must be taken into account in order to comply with the direction.

53    In BMP15 the relevant report for the purposes of Direction No 56 and thus the report which the Tribunal had to take into account was the most recent report. Here the 2016 DFAT Report expressly provided that it “replaces the previous DFAT Country Information Report on Iran dated November 2013”, i.e. the 2013 DFAT Report, and the 2018 DFAT Report expressly provided that it “replaces the previous DFAT report on Iran published on 21 April 2016”, i.e. the 2016 DFAT Report. Thus for the purposes of Direction No 84, the Tribunal was required to take the 2018 DFAT Report into account. It did so in considering first, whether the appellants would be subjected to harm as failed asylum seekers returning to Iran; and secondly, the husband’s conduct in relation to his use of social media in the context of the complementary protection criterion: see Tribunal’s reasons at [102]-[104] and [105].

54    That does not mean that the Tribunal could not, as the clause expressly contemplates, take other country information into account “where relevant”. In BMP15, O’Callaghan J acknowledged that there is nothing wrong with the Tribunal doing so “provided that older country information isn’t flatly wrong” and does not “[contradict] more recent country information”: see BMP15 at [35].

55    The appellant submitted that the 2013 DFAT Report was objectively the most relevant report, because it was closest in time to the alleged events and was thus the appropriate assessment for assessing the husband’s claims. The appellant relied on the decisions in MZYTS and BYH19 v Minister for Immigration and Border Protection [2021] FCA 157.

56    In MZYTS a Full Court of this Court (Kenny, Griffiths and Mortimer JJ) observed that the asserted error on the part of the Tribunal was a “failure to consider more recent information”. But their Honours said that, while that description may identify the path to error, the error was a failure to perform the statutory task imposed on it by the Migration Act. That is, the Tribunal’s task on review under s 414 of the Migration Act was to form, for itself and on the material before it, the requisite state of satisfaction under s 65 of the Act in respect of the criteria for a visa in issue before it: MZYTS at [31]-[32]. At [73]–[74] , in considering whether the failure to have regard to the most recently available information was a jurisdictional error, their Honours said:

[73]    Whatever might be the general principle that administrative decision-making should be based on the most up-to-date information (see Peko-Wallsend at 45) in the context of decision-making about s 36(2)(a) of the Migration Act and Art 1 of the Convention, attention to current information is not merely preferable, it is a core aspect of lawful formation of a state of satisfaction. This is, as we have endeavoured to explain, because of the predictive and speculative nature of the task involved in determining whether a person’s fear of persecution for a Convention reason on return to her or his country of nationality is well founded.

[74]    That is not to say decision-makers cannot rely on information which is several years old. They may do so lawfully as part of a weighing process after considering all information available to them, and deciding which information best and most reliably supports the prediction of future risk they are called on to make. Perhaps more recent information simply confirms older and more detailed information. Perhaps the older information is more specific to the visa applicant’s circumstances. Perhaps more recent information is from less reliable, or tainted, sources. There are many possibilities about why a decision-maker may choose, lawfully, to rely on older information and still perform the task required by s 36(2)(a) and Art 1. In such cases, one would expect the Tribunal’s reasons to disclose this kind of evaluation process, and the conclusion it reached would be within its jurisdiction.

57    In BYH19 the appellant contended that the Tribunal erred by failing to consider relevant parts of a DFAT report, contrary to the requirements of Direction No 56, which applied at the time. At [53] Anastassiou J found that, in circumstances where the Tribunal had not referred to any part of the relevant DFAT report and had not explained why it reached its conclusion that the appellant would not face a real chance of harm if returned to Pakistan, it could be inferred that the Tribunal failed to have regard to and/or did not meaningfully engage with the information in the DFAT report.

58    As I have already observed, there is no issue in this case that the Tribunal considered the DFAT report which Direction No 84 required it to consider: the 2018 DFAT Report. The question that arises is whether it made a jurisdictional error by not considering the earlier report: the 2013 DFAT Report. In my opinion it did not.

59    Commencing at [81] of its reasons the Tribunal considered the husband’s claim that he was stopped by the Basij because he had alcohol in his car and was subsequently blackmailed. At [82] the Tribunal considered whether the husband’s attire including that he was wearing a green jumper would mean that he was of any greater interest to the authorities (see [14] above). The Tribunal rejected that the incident alleged by the husband ever occurred. That was fatal to the husband’s claims including his claim that he was stopped because he was wearing a tie and a green jumper.

60    But, in any event, the Tribunal found that it was not illegal for a man to wear a tie in Iran and that it could find no country information that men wearing green jumpers were or are imputed with connections to the 2009 protest movement. That is borne out by a review of the DFAT reports.

61    The 2016 DFAT Report referred to the Green Movement (at [3.64]-[3.69]), but not to the attire of its members, and to “westernised Iranians” (at [3.74]-[3.80]) including in relation to westernised dress or appearance of men. Insofar as the latter was concerned the report was concerned with “spiky” hairstyles, the plucking of eyebrows by males and tattoos, rather than attire such as ties.

62    The 2018 DFAT Report also referred to the Green Movement (at [3.56]-[3.59]), although again not to their dress, and to dress code violations by men (at [3.85]). As to the latter the report noted that some men claimed to be discriminated against because of their dress, e.g. having “western-style hairstyles or clothing styles, visible tattoos or visible hair removal” but, notwithstanding those reports, it was common to see young men fitting those descriptions on the streets, particularly in the larger cities. DFAT assessed that the restrictions on dress code did not amount to discrimination.

63    The part of the 2013 DFAT Report which the appellants say the Tribunal ought to have taken into account was in the following terms:

Authorities can take a heavy-handed approach when they periodically enforce standards of Islamic conduct in the community, including Islamic dress and public appearances with non-family members of the opposite sex. Enforcement can be unpredictable and may be related to the prevailing political atmosphere of the time. It is therefore difficult to make an overall assessment of the treatment of ‘Westernised’ Iranians. However, it is relatively common for youth that do not wear traditional Islamic dress to experience some form of low-level harassment from security authorities, such as being subjected to searches, car checks and verbal warnings for dress or behaviour.

(Emphasis added.)

64    As the Minister submitted that generalised statement did not add anything to the husband’s specific claim that men wearing green jumpers were or are imputed with connections to the Green Movement or that men wearing ties are targeted. That is particularly so in circumstances where the Tribunal considered his claim but found it to be implausible.

65    Further, the primary judge did not err in his finding at [76] of FFR19 that the 2013 DFAT Report had “nothing of substance to say about the risk posed by wearing a suit and tie” and that it did not “bear in any material way on the question of whether wearing a green jumper, or more generally the colour green, might expose a person to a risk of harm”.

conclusion

66    For those reasons the appellants have failed to make out their ground of appeal. Accordingly, the appeal should be dismissed. As the appellants have been unsuccessful they should pay the Minister’s costs as agreed or taxed.

67    I will make orders accordingly.

Associate:

Dated:    3 August 2022