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BCO18 v Minister for Home Affairs & Anor [2019] FCCA 1491 (28 June 2019)

Last Updated: 28 June 2019

FEDERAL CIRCUIT COURT OF AUSTRALIA

REPRESENTATION

ORDERS

(1) The application as further amended by leave on 30 May 2019 is dismissed.

PEG 128 of 2018

Applicant

And

First Respondent

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 6 February 2018. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
2. The following statement of background facts is derived from the submissions of the Minister filed on 23 May 2019.
3. The applicant is a citizen of Iran who arrived in Australia as an unauthorised maritime arrival on 2 July 2013.^[1]
4. On 27 July 2016 the Minister’s Department sent the applicant a letter advising that the Minister had lifted the bar under s.46A of the Migration Act 1958 (Cth) (Migration Act) to allow him to make an application for a protection visa, and inviting him to apply for a temporary protection visa or a Safe Haven Enterprise Visa (SHEV).^[2] The applicant then lodged an application for a SHEV on 14 December 2016.^[3]
5. On 1 February 2017 the applicant attended an interview conducted by an officer of the Minister’s Department to discuss the applicant’s claims for protection.^[4]
6. On 26 April 2017 the delegate made a decision not to grant the applicant a SHEV.^[5] The matter was referred to the Authority on 1 May 2017 in accordance with s.473CA of the Migration Act.^[6]
7. On 22 May 2017, the applicant, via his representative, provided a submission and new information to the Authority.^[7]
8. On 6 February 2018 the Authority affirmed the delegate’s decision.^[8]
9. The applicant’s claims are set out in his statement^[9] and summarised in the Authority’s reasons at [9].^[10] In summary, the applicant claimed to be owed protection for the following reasons:
   1. he was born into a strict Muslim family, but is now an atheist and detests Islam and the lack of freedom. If he returns to Iran he will not be accepted back into Iranian society as he is a former Muslim turned atheist with a Catholic wife. If he returns he will be charged under the Iranian Criminal Code for apostasy;
   2. from 2009 he worked as a DJ primarily at private parties of his friends. On three occasions the Basij^[11] arrived at parties at which the applicant was DJing and arrested him and his friends and confiscated their instruments. On the three occasions, the applicant escaped prosecution with a warning. The Basij again interrupted a party where the applicant was DJing days before his departure from Iran. The applicant ran from the party when he heard the Basij were coming because he knew that punishment for a fourth incident would be severe. The applicant then stayed at his uncle’s house and a few days later his mother contacted him to say that the Basij had come to the house with documents looking to arrest him;
   100. the applicant and his friends attended the election protests together in June 2009 to support the Iranian Green Movement for the Musavi government and left the protest when the situation became violent; and
   4. the applicant submitted that he would face harm from the Iranian authorities and other groups on the basis of his non-Islamic beliefs, imputed political opinion as a perceived Islamic apostate for denouncing Islam, anti-Islamic behaviour on the basis of his DJ career and pro-western attitude, and membership of particular social groups of Muslim apostates in Iran and returned failed asylum seekers from a pro-western country.
10. The Authority found that the requirements of s.473DD of the Migration Act were not satisfied in relation to the following new information provided on behalf of the applicant:
    1. country information which predated the delegate’s decision;^[12]
    2. new claims raised in the submissions that the applicant did not engage in anti-Iranian activity in Australia because he did not wish to put his family at risk, that the applicant was physically assaulted each time he was arrested and that he had recently taken on several DJing gigs in Perth;^[13] and
    100. letters from the applicant’s wife and the wife’s priest, which did not significantly add to material already before the Authority and did not directly relate to the issues that the Authority was required to determine.^[14]
11. The Authority accepted at [14] that the Iranian authorities had previously raided events where the applicant was DJing, that they had confiscated his equipment, and that he had been arrested, taken to a police station, given warnings, made undertakings and paid fines. However, the Authority did not accept that the applicant had been detained by the authorities for any length of time, and rejected his evidence that he was detained for two days on the basis of inconsistencies in his evidence at different interviews.^[15] It was not satisfied that the applicant was subject to an outstanding arrest warrant at the time of his departure from Iran.^[16] The Authority was not satisfied that the Iranian authorities would have any ongoing interest in the applicant as a result of his past DJing activities, and was not satisfied that there was any chance of the applicant facing harm in the future as a result of his past DJing activities.^[17]
12. The Authority accepted at [26] that if the applicant does occasionally DJ at small parties in Iran as he did previously, he may again be infrequently subjected to harassment, confiscation of equipment, warning and fines, but did not consider that this would amount to serious harm.
13. The Authority accepted at [27] that the applicant attended the 2009 post-election demonstrations in Iran, but found that he was not of any interest to the authorities as a result of that.
14. The Authority accepted that the applicant does not believe in God and is opposed to Islam, and lives a westernised lifestyle.^[18] The Authority considered country information which suggested that atheists are unlikely to come to the attention of the authorities unless they seek to publicise their views.^[19] It considered the applicant’s evidence regarding the extent to which he had expressed his views publicly, and found that he had generally expressed his opinions in social conversations with like-minded persons and that he does not express his views more publicly out of respect for others’ beliefs.^[20]
15. The Authority was not satisfied that the chance of the applicant suffering harm in relation to the combination of his religious and political views and “un-Islamic” or westernised outlook and behaviour was any more than remote. It was not satisfied that, cumulatively, the impact of any limitations that the applicant may face would amount to serious harm.^[21]
16. The Authority accepted that the applicant had married a Catholic woman but was not satisfied that there was a real chance of the applicant facing harm as a result of his marriage.^[22]
17. The Authority found that if the applicant returns to Iran, his return will be voluntary.^[23] It considered country information and found that asylum seekers are not imputed with an anti-government or anti-Islam political opinion or otherwise viewed as being of adverse interest because they have claimed asylum in the west.^[24]
18. The Authority, when it considered the applicant’s circumstances as a whole, was not satisfied that there was a real chance that he would face serious harm amounting to persecution in the reasonably foreseeable future.^[25] The Authority was not satisfied that the applicant met the criterion in s.36(2)(a) of the Migration Act. For similar reasons, it was not satisfied that the applicant would face a real risk of significant harm and, accordingly, found that he did not meet the criterion in s.36(2)(aa).^[26]

The present proceedings

19. These proceedings began with a show cause application lodged on 2 March 2018. That application was amended on 8 August 2018. At the trial I gave the applicant leave to file and rely upon a further amended application annexed to the affidavit of Dayani Perera made on 20 May 2019. There are two particularised grounds in the further amended application:
    • Ground 1
      1. The decision of the Immigration Assessment Authority (IAA) was vitiated by a process of reasoning which was arbitrary or capricious, bizarre, or illogical.
         • Particulars
         • 1.1 The IAA correctly identified the Applicant's claim that, having been dealt with by the Iranian authorities on three previous occasions for ‘DJ’ing', he would be punished more harshly for a fourth offence.
         • 1.2 The IAA’s finding that it was 'not satisfied that a fourth offence for ‘DJ’ing’ in Iran would result in the issuance of an arrest warrant or harsher punishment than the [A]pplicant faced previously’ did not follow, deductively or inductively, from the premises that:
           • 1.2.1 The death penalty for consumption of alcohol on a third offence had been removed from Iran’s new penal code;
           • 1.2.2 ‘[E]ven a first offence of alcohol consumption is treated more far gravely than the applicant’s DJ’ing’;
           • 1.2.3 DFAT reported 'that authorities would be unlikely to maintain an interest in someone who previously came to their attention, and had been sanctioned by a fine or warning, for:
             • 1.2.3.1 Having ‘visible tattoos’;
             • 1.2.3.2 Being seen in public as an 'unmarried couple';
           • 1.2.4 In any event, the DFAT report provided no foundation for the proposition attributed to it at 1.2.3.2;
      • 1.3 To derive regard a positive, albeit implicit, proposition that the Iranian penal code did not provide for an escalating scale of punishment for offences from the absence of any such specific mention was irrational.
      • 1.4 A finding that the Applicant did not claim to have ‘distributed’ or ‘write’ original Western music did not obviate a perception of anti-Islamic artistic or musical expression or political messaging by music.
    • Ground 2
      • 2. The decision of the IAA was vitiated by an unreasonable failure to itself ‘get’, or to consider whether to ‘get’, under section 473DC(1) of the Migration Act 1958 (Cth), the country information brought to the IAA’s attention by the Applicant going to the imprisonment of musicians in Iran, which country information supplied an answer to the evidentiary omission identified by the Authority itself.
        • Particulars
        • 2.1 The IAA declined under section 473DD(a) to accept ‘new information’ which included country information exampling a sentence of imprisonment of 3 years imposed on an Iranian underground musician for ‘propaganda against the state’ and ‘insult[ing] the sacred’.
        • 2.2 In its substantive reasons the IAA criticised the Applicant for ’not submitt[ing] any evidence, such as country information, to substantiate his claim that a fourth offence over something like DJ’ing would be treated more harshly.’
        • 2.3 Part 7AA required the IAA to make the correct and preferable decision, and section 473DC(1) empowered it to ‘get’ such information, including country information, as it thought necessary to complete its review.
20. Ms Perera’s affidavit was read also for the purpose of introducing the DFAT^[27] country information report on Iran published on 21 April 2016. An earlier affidavit by Ms Perera annexing a later version of that report^[28] was not read.
21. I also received into evidence the court book lodged on 13 June 2018.
22. Both the applicant and the Minister filed helpful written submissions before the trial and made oral submissions through their representatives at the trial. I have been assisted by those submissions.

Consideration

Ground 1 – was the Authority’s reasoning process illogical or unreasonable?

The applicant’s contentions

23. By Ground 1, the applicant impugns the process of reasoning embodied in the alleged syllogism informing the ultimate finding. That part of the Authority’s reasoning impugned by Ground 1 is contained at [19] of the Authority’s reasons:^[29]
    • The applicant has claimed that he would be punished more harshly for a fourth offence. While the possibility of greater punishment for a subsequent offence finds some support in Iran’s old penal code, which contained a provision for a death sentence for a third offence of alcohol consumption, this article has been removed in the new penal code and in any event even a first offence of alcohol consumption is treated far more gravely than the applicant’s DJ’ing offences, being publishable [sic] by flogging. The applicant has not submitted any evidence, such as country information, to substantiate his claim that a fourth offence over something like DJ’ing would be treated more harshly. The penalties the applicant previously faced were things such as warnings and fines. I note information from ... (DFAT) that the authorities would be unlikely to maintain an interest in someone who previously came to their attention for other types of ‘unIslamic’ [sic] behaviour sanctioned with warnings and fines, such as having tattoos or unmarried couples appearing together in public. I note that although the applicant has said that alcohol was consumed at the events he attended, he does not claim to have been accused of or punished for alcohol consumption. On the available material I am not satisfied that a fourth offence for DJ’ing would result in the issuance of an arrest warrant or harsher punishment than the applicant faced previously.
    • (footnote omitted)
24. The conclusion reached was that the Authority was not satisfied that a fourth offence “for DJ’ing would result in the issuance of an arrest warrant or harsher punishment than the applicant previously faced” (namely, arrest, confiscation of musical equipment, fines and warnings).
25. The express premises were that:
    1. an article in the former Iranian penal code provided the death penalty for a third offence of alcohol consumption;
    2. “this article” was removed in the “new” penal code, by which the Authority must have meant that the death penalty no longer applies for a third offence of alcohol consumption;
    100. even a first offence for alcohol consumption is “treated” more severely (by “flogging”) than the confiscations, fines or warnings imposed previously on the applicant for DJing;
    4. the applicant was neither punished nor accused of alcohol consumption;
    5. other “un[-]Islamic” behaviour, such as “having tattoos” or unmarried couples appearing together in public, are only punished with fines or warnings; and
    6. the applicant had not submitted any evidence as to a graduated scheme of punishments for multiple offences related to DJing.
26. The applicant asserts that the Authority seems to conflate the question of what penalties are prescribed and what “would” in fact be imposed.
27. The applicant contends that the Authority’s reasons express the conclusion that the applicant “would” not receive a more serious sanction for a fourth offence. On the other hand, the Authority is said to be referencing prescribed penalties for alcohol consumption under the old and new Iranian penal codes. On that premise it is not easy to see what the applicant could have provided by way of “evidence, such as country information”, other than generally applicable objective material (such as prescribed penalties).
28. These premises are said not to sustain a conclusion that a fourth offence for DJing would not attract a greater penalty in fact or that there was no greater prescribed penalty.
29. The applicant submits that if the removal of the death penalty for a third offence of alcohol consumption can be accepted as implying a general amelioration of prescribed penalties under the “new” Iranian penal code, that invites no conclusion at all about whether or not the Iranian penal code provides a graduated scale of prescribed sentences for subsequent offending. The Iranian penal code would be quite unique if it did not. It is said to be implicit in the reference to the penalty for a first offence of alcohol consumption, that a graduated scale of sentences is prescribed.
30. In any event, there was no such offence as DJing. The applicant claimed that he fears being charged with apostasy or hudud crimes (crimes against God).
31. Even if the Authority can be taken as concluding that there was no risk at all (“would” not) of a more serious punishment being imposed in fact the premises are said not to support that conclusion either because:
    1. first, the premises reference the prescribed penalties for alcohol consumption in both the old and new penal Iranian codes. This entails no conclusion about what sentences may be imposed in fact, even for alcohol consumption;
    2. secondly, the “treatment” of a first offence for alcohol consumption entails no conclusion about “treatment” for subsequent offences for “something like” DJing; and
    100. thirdly, whether or not the Iranian authorities would be likely to “maintain an interest” in the applicant, by reference to country information suggesting that interest may not be maintained in respect of persons having tattoos or appearing in public together as an unmarried couple, may rationally inform a finding that the applicant may not be the subject of surveillance, but it cannot inform a finding as to prosecutorial or sentencing treatment on a fourth offence.
32. There is said to be a hint of self-consciousness in the Authority’s reference to the alleged failure of the applicant to produce country information “to substantiate his claim that a fourth offence over something like DJ’ing would be treated more harshly”, suggesting that the Authority itself was cognisant of the fragility of this line of reasoning.
33. The applicant contends that in fact he had submitted that country information, referencing a UN Special Rapporteur’s report of the imprisonment in 2016 of musicians for producing and promoting underground music. That is the subject of Ground 2.
34. Additionally, the applicant invites attention to the Authority’s selection of country information from DFAT at [20] selected from [3.81] of the DFAT report.^[30] The Authority accepts that “prominent” musicians and other artists have faced prosecution for “anti-Islamic” music or “political messaging”, only to distinguish the applicant by noting that he did not write his own music but played “techno, pop or classical, depending on the function and requests from the audience”. The selection is said to be at least as instructive for what it omits. The same section on “musicians” from the DAFT report also includes the following:^[31]
    • In September 2014, six Iranians were arrested for appearing in a video dancing (published and viewed widely on YouTube) to Pharrell Williams’ song ‘Happy’. They were subsequently sentenced to up to one year in prison and 91 lashes. Nonetheless, DFAT has regularly observed and heard Western music being played in places such as coffee shops, restaurants, taxis and private cars and assesses Iranians generally have a low risk of being targeted on the basis of this alone.
35. The applicant submits these six Iranians were not “prominent” musicians, nor engaged in “political messaging”.
36. In that context, it is said to be “odd” that the Authority makes the observation that “the applicant has not submitted any evidence, such as country information, to substantiate his claim that a fourth offence over something like DJ’ing would be treated more harshly”. There was positive evidence and the Authority must have been aware of it. The phrase “political messaging”, for example, seems to be taken from [3.81] of the DFAT report. In its reasons at [19],^[32] the Authority seems to draw an inference from an apparent absence of such information. That impression is reinforced by noting the general and comparatively tangential matters upon which the Authority does in fact rely. The logic is said to fail in light of this positive evidence.
37. The applicant submits that, to the extent that the reasoning was informed by the latent premise described above for the conclusion that there was no risk at all that the applicant might receive a greater punishment than that thrice previously imposed, that finding was without an intelligible justification. There was said to have been no information to suggest that the Iranian authorities do not treat recidivism more seriously. The DFAT report stated that Article 220 of the new penal code provides that crimes punishable under Iranian law are not limited to the ones specified in the penal code, and that the death penalty is available.^[33] The Authority’s finding is said to be contrary to “common sense”.

The Minister’s contentions

38. The Minister submits that the ground raised by the applicant is not established. There is said to be nothing arbitrary, capricious, bizarre or illogical in the Authority’s reasons when the reasons are considered as a whole and when the particular parts of the Authority’s decision which are impugned by the applicant are considered in their proper context.
39. The particulars of the first ground relied on by the applicant suggest that the applicant is asserting jurisdictional error based on [19] and [20] of the Authority’s reasons. It is important that these paragraphs are considered in their appropriate context, which is as part of a number of reasons for the Authority having doubt over the applicant’s claim to have been subject to an outstanding arrest warrant at the time of his departure from Iran.^[34] These reasons include:
    1. the Authority did not accept that the applicant had any significant profile, based on his evidence that his DJing was infrequent and casual and that he claimed to have been intercepted or arrested only three times over a four year period. The Authority considered that, given this lack of profile, it was unlikely that the Basij would have tracked the applicant to his home after he claimed to have run away from the Basij on 3 June 2013;^[35]
    2. the applicant has not provided evidence such as country information to substantiate his claim that his fourth offence for DJing would be treated more harshly, and on the evidence before the Authority, the Authority was not satisfied that a fourth offence for DJing would result in the issue of an arrest warrant or harsher punishment than the applicant faced previously;^[36]
    100. the Authority accepted that prominent musicians and artists have faced prosecution for their artistic expression where it is perceived to be anti-Islamic or to have political messaging, but noted that the applicant did not claim to have distributed or written music, and did not accept the applicant had a profile that would lead to arrest or prosecution over his music;^[37]
    4. the applicant departed Iran though Imam Khomeini airport using his own passport without facing attention or difficulty. Even though the applicant’s departure was less than a week after the supposed arrest warrant was issued, the Authority considered it implausible that the applicant would even attempt a lawful departure through the airport if he was aware that there was an outstanding warrant for his arrest;^[38]
    5. the applicant gave evidence that he maintains regular contact with his family, but there was no evidence to suggest that there has been any follow up by the Iranian authorities since the time of his departure;^[39] and
    6. the applicant had not submitted any material to corroborate the claimed interest in him by the Iranian authorities.^[40]
40. Considering all of these matters together, the Authority was not satisfied that the applicant was subject to an arrest warrant or otherwise of any adverse interest to the Iranian authorities in relation to his DJing at the time of his departure from Iran, or that he would be of any ongoing interest to the authorities in relation to his previous DJing work in Iran.^[41]
41. Numerous cases in recent years have addressed the proper approach of the courts to assessing whether a decision might be said to be illogical or irrational. The Minister does not address them all in his submissions, but rather draws to the Court’s attention a few of these decisions.
42. The leading case dealing with illogicality and irrationality is Minister for Immigration v SZMDS.^[42] In SZMDS, Crennan and Bell JJ described the test for irrationality or illogicality as follows:^[43]
    • The test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
    • ...
    • A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
43. After considering the principles in SZMDS, the Full Federal Court in ARG15 v Minister for Immigration^[44] stated at [47]:
    • Subsequent authorities have established that, for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reason, “extreme” illogicality or irrationality must be shown “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions and against the framework of the inquiry being as to whether or not there has been jurisdictional error on the part of the Tribunal”. ... Illogicality or irrationality in that extreme sense may be considered not only in relation to the end result, but also extends to fact finding which leads to the end result, albeit that, as Robertson J emphasised in SZRKT at [151], the overarching question is whether the decision was affected by jurisdictional error...
    • (citations omitted)
44. The Minister submits that, on this last point, namely that the critical question is always whether a decision is affected by jurisdictional error, and it is important to note that even if an aspect of reasoning or a finding of fact is found to illogical or irrational, this will not generally amount to jurisdictional error unless the reasoning or finding of fact was critical to the ultimate conclusion or end result.^[45]
45. The Minister addresses the applicant’s particulars, bearing in mind the context in which the impugned reasoning of the Authority appears, along with the principles developed by the Court regarding the assessment of reasons for illogicality or irrationality.
46. Particulars 1.1 to 1.3 relate to the reasoning at [19] of the Authority’s reasons.
47. Particular 1.1 simply identifies the applicant’s claim made in his protection visa application and does not of itself indicate any jurisdictional error.
48. Particulars 1.2 and 1.3 are said to be based in part on a misconstruction of [19]. On its proper construction, the key point in [19] is that the applicant did not provide evidence to support his claim that he would be punished more severely for a fourth offence for DJing and that, on the material before the Authority, it was not satisfied that for a fourth DJing offence the applicant would be subject to the issue of an arrest warrant or other harsher punishment than he previously faced.
49. In the absence of direct evidence in relation to likely punishments for fourth offences of DJing, the Authority considered information about punishments for other offences, seemingly by way of analogy. This is said to be the context in which the aspects of the reasoning the subject of particulars 1.2.1 to 1.2.3 should be viewed. The Minister submits that on a fair reading of the Authority’s reasons, the reasoning the subject of those particulars should be understood as follows:
    1. the factors referred to at particulars 1.2.1 and 1.2.2 comprise an acknowledgement that there is some country information to suggest that subsequent offences can be subject to greater punishment in Iran. The example of the treatment of alcohol offences under the former penal code was raised by the Authority. However, the Authority did not consider that this information supported a finding that the applicant would face greater punishment than he did previously for a fourth offence of DJing. It is implicit in the Authority’s reasons that the example given in relation to alcohol use was not apposite because it arose under the old penal code, not the current penal code, and because alcohol related offences appear to be considered more seriously in any event, as they attract harsher penalties than DJing offences, even for a first offence;
    2. the factor referred to in particular 1.2.3 is also raised by the Authority as an example by way of analogy. In this instance, instead of looking at examples of escalating punishment, the Authority is looking at country information relating to the continued interest of the authorities in people who have previously come to the attention of the authorities for crimes which attract similar penalties to those that the applicant previously faced. The Authority has identified having visible tattoos and being seen in public as an unmarried couple as offences for which a person might receive a warning or a fine. The Authority has implicitly concluded that as people who have previously come to the authorities’ attention for these offences would be unlikely to be of continued interest to the authorities, these examples do not support the contention made by the applicant, that he would be of continued attention to the authorities for his DJing offences for which he also received fines and warnings;
    100. particular 1.2.4 asserts that, in any event, the country information relied on by the Authority does not support that the authorities would be unlikely to maintain an interest in someone who previously came to their attention for being seen in public as an unmarried couple. Paragraph [3.87] of the 2016 DFAT Country Information Report on Iran^[46] provides indirect support for the proposition referred to by the Authority. That paragraph suggests that “DFAT assesses that the authorities generally turn a blind eye to [unmarried couples appearing together in public] ... If such couple[s] are arrested, they are usually taken to a police station, where parents or guardians are summoned. They are usually released after making a written statement and can sometimes be required to pay a fine”; and
    4. particular 1.3 asserts that the Authority has derived a positive proposition that the Iranian penal code did not provide for an escalating scale of punishment for offences, based on the absence of any specific reference and that this was irrational. The relevant finding of the Authority is set out in the final sentence of [19] where the Authority states, “On the available material I am not satisfied that a fourth offence for DJ’ing would result in the issuance of an arrest warrant or harsher punishment than the applicant faced previously”.
50. The applicant challenges this finding by saying that it was without intelligible justification because there was no information before the Authority to suggest that the Iranian authorities do not treat recidivism more seriously. The Minister contends that this does not establish illogicality or irrationality in the finding of the Authority at [19] of its reasons.
51. An administrative decision-maker such as the Authority does not require positive evidence to contradict an assertion or claim made by an applicant in order to not be satisfied that the applicant’s assertion or claim is established.^[47] In other words, the Authority is not bound to accept any assertion or claim raised by the applicant unless it can disprove that claim or assertion.
52. Further, and in any event, contrary to the applicant’s submissions, the Minister submits that the applicant has not identified any material that was before the Authority which supports the assertion that a fourth offence for DJing would be treated more harshly. Neither the extract from [3.83] of the DFAT country information report, nor the report that is the subject of Ground 2 contain any positive statement to suggest that a fourth offence for DJing will be treated more harshly, nor do they contain any indirect statement from which this might be inferred.
53. The Minister contends that in these circumstances, where there was no positive evidence to support an assertion advanced by the applicant, and no evidence to directly contradict the applicant’s assertion, it was open to the Authority to not be satisfied that the claim was established on the evidence before it. At the very least, the Authority’s decision falls within the area of decisional freedom given to administrative decision-makers and does not demonstrate any form of illogicality or irrationality.
54. Particular 1.4 appears to be directed to [20] of the Authority’s reasons, in which the Authority acknowledged that some prominent musicians and artists in Iran have faced prosecution where their artistic expression has been perceived to be anti-Islamic or to contain political messaging. In finding that the applicant did not have a profile that would lead to his arrest or prosecution over his music, the Authority identified that the applicant did not claim to have written or distributed music, and played styles such as techno, pop or classical depending on the function and audience requests. There is said to be nothing illogical or irrational in the Authority’s reasoning at [20], particularly in circumstances in which the applicant did not claim that the choice of music he played contained any political messaging, or was anti-Islamic in nature.
55. To the extent that the applicant relies on [3.83] of the DFAT country information report to suggest that there was information before the Authority to suggest that even those that are without a high profile can face significant punishment, the Minister submits that this report does not materially assist the applicant’s case, based on the findings made by the Authority. These findings included that the applicant’s DJing was “infrequent and casual, occurring at small private parties”, that he had come to the attention of the authorities only three times in four years for his DJing and that these instances would not have led to any formal record against the applicant or any follow up.^[48] This conduct of the applicant at small private parties at which he did not purport to disseminate western music is a far cry from engaging in conduct that was “published and viewed widely on YouTube”, and it is difficult to draw any meaningful analogy between the applicant’s relatively private conduct and the appearance in a YouTube video which was published and viewed widely.
56. For completeness, the Minister notes that the applicant did claim that he would be charged with anti-Islamic behaviour for DJing,^[49] but this was not based on any particular expression of his music, and was, in any event, addressed by the Authority.
57. For the reasons expressed above, the Minister submits that there is nothing illogical or irrational in any aspect of the Authority’s reasons. However, even if the Court was to find that any of the aspects mentioned above were illogical or irrational, the error is said not to be a jurisdictional error.
58. Even if the Court were to find some error in the reasoning at [18] or [19] of the Authority’s reasons, the Minister submits that any such error would not be material in any way to the Authority’s ultimate decision in this matter, and the paragraphs targeted by the applicant comprise two of six reasons for finding that the applicant was not subject to an arrest warrant at the time of his departure from Iran, which itself comprised just one aspect of the applicant’s claims for protection. Even if the Court were to find that there were some error(s) in [19] and [20] of the Authority’s reasons, those error(s) could not have operated to deprive the applicant of “the possibility of a successful outcome”, and therefore the error would not be jurisdictional.^[50]

Resolution

59. I made clear to the representatives at the trial that I did not accept that there was an issue of materiality in this case in the event that I found that the Authority’s reasoning was irrational or unreasonable. Put shortly, in my view on the facts of this case, it would necessarily follow from a finding of unreasonableness or illogicality that such a defect in reasoning could have affected the outcome.
60. The issue of the risk of the applicant coming to the adverse attention of the Iranian authorities on a fourth (or further) occasion because of his DJing activities was plainly an issue of substance which was material to the outcome. The difficulty confronting both the applicant and the Authority was that, according to the available country information, DJing is not an offence. It therefore followed that both the applicant and the Authority had to reason by analogy from known offences under Iranian law that might hypothetically be applicable to the applicant’s DJing activities. In that regard, I prefer the submissions of the Minister in relation to this ground. It was hypothetically possible for a musician to come to the adverse attention of the Iranian authorities in circumstances that gave rise to a real risk of serious harm. This might be because of the nature of the music being performed or reproduced or the circumstances in which it was performed or reproduced. At one end of the scale, the applicant might have been stopped from his DJing activities because of a simple noise complaint. It was unhelpful that the applicant did not tell the delegate or the Authority what offences (if any) he had been charged with. They may have been relatively trifling offences or they may have been more serious in relation to moral and religious matters under Sharia law.
61. Although the applicant claimed that he was warned and (possibly) fined, in the absence of information about the threatened or actual charge and an assessment of whether the authorities who intervened were acting within the law or outside it, and the process which led to the levying and payment of any fine, it could not be said with confidence whether any money paid by the applicant was a fine in response to a charge or a bribe. The Authority appears to have accepted that a fine or fines had been imposed and that the applicant was also warned and had equipment confiscated.
62. As I pointed out to the representatives at the trial, the country information available to the Authority pointed to a society in Iran in two parts. On the one hand, there is a traditional Shia religious society with strict norms of behaviour. The leaders of that society control the levers of power within the country. On the other hand, there is a great mass of people who pursue a secular lifestyle in common with many other relatively advanced Western societies. The question whether members of the secular society face a real risk of serious harm from the Iranian authorities depends upon the extent to which those in power (or those charged with enforcing religious or moral codes) are willing to tolerate the secular lifestyle of the bulk of the population.
63. This was at the heart of the dilemma facing the Authority. On the one hand, the Authority was willing to accept the basic facts presented by the applicant about his past experiences of DJing. On the other hand, given that the Authority was not told what the applicant had been charged with, it was left to speculate by reference to the available country information what might have happened and what might happen in the future. It could not be assumed that any, let alone identical charges had been laid against the applicant on each occasion he had been stopped from DJing and it could not be assumed that if any charges were laid, they were serious in terms of the penalties that could be imposed. The Authority attempted to reason logically from what it had been told by the applicant about what he had been doing and it was unwilling to conclude that if the applicant came to the attention of the authorities on a fourth or further occasion, he would necessarily be treated more harshly than he had been previously. The fact that the applicant can point to serious offences under Iranian law which attract a graduated scale of penalties for repeat offences does not render the Authority’s reasoning unreasonable or illogical. The applicant was unable to say with any likelihood that he had been or would be charged with such offences.
64. It was, in my view, open to the Authority to reason, based on the material before it, that it should not be anticipated that the applicant would be treated more harshly on a fourth or further occasion than he had been previously. That reasoning was in the range of analysis open to the Authority. It was not, in my view, unreasonable or illogical. Obviously, a differently constituted Authority may have come to a different conclusion but that is not the point. The point is that the Authority could come to the conclusions it reached on the basis of the available material. I reject Ground 1.

Ground 2 – was it unreasonable for the Authority not to exercise its power under s.473DC of the Migration Act?

Applicant’s contentions

65. This ground arises from the Authority’s reasons at [19] that:
    • The applicant has not submitted any evidence, such as country information, to substantiate his claim that a fourth offence over something like DJ’ing would be treated more harshly.
66. In the applicant’s written submissions to the Authority, under the heading “DJ career”, the applicant’s then migration agent referenced country information in the form a June 2016 United Nations publication, “Artistic Expression is not a crime – Special Rapporteurs urge the Iranian government to free jailed artists”.^[51]
67. The applicant’s migration agent purported to summarise the content of that report, exampling the imprisonment of a musician in June 2016 for three years “for producing and promoting underground music that the state deemed as ‘propaganda against the state’, which also ‘insulted the sacred’’’. It was said that the applicant could have faced the same fate for throwing small underground parties around Teheran.^[52]
68. The Authority identified the “country information” as “new information” included within the migration agent’s submissions, and declined to accept the new information pursuant to s.473DD. The applicant maintains nevertheless that the Authority was not foreclosed under Part 7AA from considering that country information. There was an express power for the Authority itself to “get” that country information under s.473DC(1), albeit not a duty to in fact get it.
69. The applicant submits that the country information brought to the attention of the Authority supplied an answer to the criticism that the applicant had not supplied country information which could sustain his contention that a fourth offence for “something like DJ’ing” could or “would” be treated more seriously. But for the limitations in Part 7AA, to proceed to a decision on that basis would have the vitiating characteristic of being arbitrary or capricious, “lacking common sense”, or “plainly unjust”.^[53]
70. On the assumption that it can be shown that the Authority did not in fact consider whether to exercise the discretion under s.473DC(1), the real question is whether it was legally unreasonable in this case not to do so. It is said to be clear on the present state of the authorities that there may be circumstances in which it would be legally unreasonable to fail to consider exercising the discretion under s.473(1).^[54]
71. It is true that both CRY16 and DZU16 both arose from the circumstance that the Authority was considering an issue of “relocation” not considered by the delegate. But that circumstance was not part of the ratio of those decisions. As Thawley J noted in CCQ17 v Minister for Immigration^[55] the error identified in CRY16 does not arise in “fixed categories of circumstances”.
72. In DZU16 the Full Federal Court stated at [94]:
    • ... the exercise of the power lacked 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 ... The Authority did not have that information because the question of relocation ... was not explored, or the subject of the findings, by the delegate. The Authority’s failure to give the respondent an effective chance to respond 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.
73. In this case, the Authority itself identified the country information as relevant to its own review. Section 473DD(b) is directed to precluding consideration of material provided by a review applicant. To “get” country information which the Authority had itself independently identified as relevant does no violence to the statutory scheme set out in Part 7AA.
74. It so happened that the Authority was in fact aware of the very kind of country information it said the applicant “had not submitted”. It reached the conclusion that the applicant “had not submitted country information” because the Authority regarded itself as precluded from considering it by s.473DD.
75. The applicant submits that this unusual circumstance means that it should be inferred on the balance of probabilities that the Authority did not consider whether to “get” the country information. If that were not so, it is not easy to understand why, having identified what the Authority itself regarded as a lacuna in its evidence, it would not have stated why it did not consider whether to “get” country information. It could not have considered that it was not relevant because much more generalised country information on “musicians” in Iran at [3.81]-[3.83] of the 2016 DFAT Country Information Report was specifically considered.

The Minister’s contentions

76. The Minister contends that neither the factual basis for this ground, nor the legal argument relied on to support this ground is established.
77. The applicant has identified that this ground is directed at the Authority’s statement at [19] that the applicant has not submitted any evidence, such as country information, to substantiate his claim that a fourth offence over something like DJing would be treated more harshly.
78. Accordingly, when assessing the potential impact of the country information relied on by the applicant in support of this ground, the Minister submits that the country information does not substantiate the proposition that a fourth offence for DJing would be treated more harshly than subsequent offences.
79. The country information relied on by the applicant is a publication from the United Nations Human Rights Office of the High Commissioner titled “Artistic expression is not a crime – UN rights experts urge the Iranian Government to free jailed artists” (UN publication).^[56] The UN publication addressed the sentence of three artists who were sentenced to six years imprisonment (reduced to three years on appeal) and a fine of 50 million Rials each for “insulting Islamic sanctities”, “propaganda against the State” and “conducting illegal activities in the audiovisual affaires including through producing prohibited audiovisual material and performing an illegal and underground music site”. The UN publication appears to suggest that the persons punished were involved with an alternative music distributor which broadcast alternative music and introduced more than 100 music albums and thousands of single records by Iranian alternative musicians, as well as female singers. Nowhere in the UN publication does it refer to any subsequent offences for DJing or other offences involving artistic expression being treated more harshly.
80. Accordingly, the Minister submits that this ground fails at a factual level because the UN publication that the applicant attempted to provide to the Authority is not evidence of the proposition for which the Authority stated the applicant had not provided any evidence, namely that he would be punished more severely for a fourth DJing offence.
81. In these circumstances, it is said to be unnecessary for the Court to address the legal principles relied on by the applicant to assert that the Authority acted unreasonably in not considering whether to obtain for itself the UN publication by exercising its discretion in s.473DC(1) of the Migration Act. However, in the event that the Court chooses to address the legal principles, the Minister makes the following submissions:
    1. first, the Authority’s own findings in relation to s.473DD would preclude it from considering the UN publication. The applicant has acknowledged in his submission that the Authority declined to take into account the UN publication because it was not satisfied that the requirements of s.473DD were met. Where an applicant provides new information to the Authority, the Authority must be satisfied that the requirements set out in both s.473DD(a) and s.473DD(b) are met before it can take that new information into account. While the applicant is correct to say that the Authority has a discretion in s.473DC(1) to obtain new country information for itself, where the Authority exercises this discretion, it can only take the new country information into account if it is satisfied that there are exceptional circumstances to justify doing so, as required by s.473DD(a). In the present case, the Authority’s finding at [4] includes a finding that “it is not apparent to me that there are exceptional circumstances to justify considering this information”. Thus, the Authority found that the requirements of s.473DD(a) were not satisfied in relation to the UN publication and it could not have taken the UN publication into account even if it did obtain it under s.473DC(1); and
    2. secondly, the Minister accepts that the Authority is required to exercise its statutory discretions, including the discretion in s.473DC, reasonably.^[57] However, the authorities relied on by the applicant in which the courts have found that the Authority acted unreasonably in not considering the exercise of the discretion are easily distinguishable. CRY16 and DZU16 both involve situations in which the Authority made dispositive findings in relation to issues (specifically, relocation) which had not been properly addressed before the delegate because they were not dispositive issues in the delegate’s decision. The present case is quite different. The relevant finding in the present case is merely one aspect in relation to the broader issue of whether the applicant would face a real chance of serious harm on return to Iran as a result of his DJing activities. This broad issue was central to the delegate’s decision and the applicant had had an opportunity to address the issue before the delegate. Further, the specific finding relied on by the applicant is not of itself dispositive of the applicant’s claims. It is simply one of six reasons for not believing that the applicant was subject to an outstanding arrest warrant at the time of his departure, which formed part of the Authority’s reasons for concluding that the applicant did not face a real chance of serious harm as a result of his DJing activities if he returns to Iran.
82. The Minister does not concede that the Authority did not consider the exercise of its discretion not to obtain the UN publication for itself under s.473DC(1); to this regard, the applicant bears the onus of establishing the factual foundation for the conclusion that there was a failure to consider exercise of the discretion and that this was a jurisdictional error.^[58] The Minister submits that the applicant has not established that there has been such a failure by the Authority. Even if the Authority was found not to have exercised its discretion (which is not conceded), there would be nothing unreasonable in the Authority not considering the exercise of the discretion in the circumstances of the present case.

Resolution

83. I prefer the Minister’s submissions in relation to this ground. The applicant’s complaint is that the Authority unreasonably failed to exercise (or consider exercising) its discretion under s.473DC of the Migration Act to get country information about the treatment of musicians in Iran in a June 2016 United Nations publication.
84. There are several problems with the applicant’s contention. The first is that the silence by the Authority on any consideration of exercising its power under s.473DC does not support an inference that the exercise of the power was not considered in this case. The Authority already had before it considerable country information bearing on the question of the risks facing musicians or performers in Iran. Secondly, and more importantly, the Authority was aware of the information because it had been included in the submission made to the Authority on behalf of the applicant, which was dealt with at [4] of the Authority’s reasons. The Authority there stated:^[59]
    • The submission refers to a range of country information, all of which is new information and pre−dates the delegate's decision. The applicant was represented before the delegate and his then representative provided other country information in submissions made with the visa application. The applicant was told at the protection visa interview on 1 February 2017 that it was his responsibility to provide sufficient evidence to establish his claims, that if his application was refused he may not have another chance to provide further information, and that he could submit information after the protection visa interview, which took place some months prior to the delegate's decision. In these circumstances and in the absence of some explanation from the applicant, I am not satisfied that this country information could not have been provided to the delegate prior to the decision being made. It is general country information and not credible personal information. Further, it is not apparent to me that there are exceptional circumstances to justify considering this information, and no submissions have been made in that regard. I am not satisfied of the requirements of s.473DD in respect of the country information cited in the submission.
85. This brings me to the second problem confronting the applicant. The Authority declined to have regard to the information in question, having gone through the process of analysis required by s.473DD of the Migration Act. The applicant contends that the discretion under s.473DC is still enlivened in circumstances where information is rejected under s.473DD because there may be a technical reason for the Authority being unable to receive the information under that section while it could still be obtained on the Authority’s own volition under s.473DC.
86. While I accept that proposition in theory, it has no application to the present case. That is because the Authority considered all elements of s.473DD in relation to the information in deciding not to consider it. In particular, the Authority found that there were no exceptional circumstances justifying its consideration of the information. The applicant does not challenge the Authority’s reasoning at [4]. Rather, however, the applicant complains about the Tribunal stating at [19] that the applicant had not submitted any evidence, such as country information, to substantiate his claim that a fourth offence over something like DJing would be treated more harshly, having rejected the production of country information, which the applicant contends was supportive of that claim. In a particular case, it might be unreasonable for the Authority to refuse to consider information under s.473DD in such circumstances. This is, however, not such a case. The country information proffered by the applicant referred to harm suffered by particular musicians in circumstances which were rather different from those of the applicant. Further, the information provided no further guidance on whether there was a graduated scale of penalties in relation to offences relevant to the performance or production of music.
87. In my view, it was open to the Authority to conclude that the information proffered by the applicant was not credible personal information, that it could have been provided to the delegate and that there were no exceptional circumstances to justify considering it.
88. Having reached those conclusions, in my opinion, s.473DC had no remaining work to do because there was no point in the Authority “getting” the information of its own volition if it could not consider it, consistently with its reasoning under s.473DD.
89. I find that the second ground also fails.

Conclusion

90. The applicant has failed to establish that the decision of the Authority is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
91. I will hear the parties as to costs.

I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 28 June 2019

^[1] At my request the representatives agreed, at the outset of the trial on 30 May 2019, that there was no issue about the place of the applicant’s arrival; Court Book (CB) 56, 63
^[2] CB 30-31
^[3] CB 42-108, 111
^[4] CB 124
^[5] CB 150-162
^[6] CB 167-170 and 175
^[7] CB 193-202
^[8] CB 212-228
^[9] At CB 87-91
^[10] CB 214-215
^[11] a pro-government paramilitary force with a role in policing morals
^[12] [4]
^[13] [5]-[6]
^[14] [7]
^[15] [15]
^[16] [17]-[23]
^[17] [24]-[25]
^[18] [28]
^[19] [29]
^[20] [31]
^[21] [34]
^[22] [35]-[36]
^[23] [38]
^[24] [41]
^[25] [42]
^[26] [46]-[50]
^[27] Department of Foreign Affairs and Trade
^[28] which was released after the decision of the Authority
^[29] CB 217
^[30] CB 217
^[31] 2016 DFAT Country Information Report at [3.83], page 18
^[32] CB 217
^[33] DFAT Country Information Report at [3.53], page 14
^[34] [17]
^[35] [18]
^[36] [19]
^[37] [20]
^[38] [21]
^[39] [22]
^[40] [23]
^[41] [24]
^[42] [2010] HCA 16; (2010) 240 CLR 611
^[43] at [131]-[135]
^[44] [2016] FCAFC 174; (2016) 250 FCR 109
^[45] see Minister for Immigration v SZOCT [2010] FCAFC 159; (2010) 189 FCR 577 at [83]- [84] and Minister for Immigration v SZUXN [2016] FCA 516 at [55]
^[46] not [3.88] as referred to in the Authority’s footnote on CB 217
^[47] see Selvadurai v Minister for Immigration [1994] FCA 1105; (1994) 34 ALD 347 at 348
^[48] [18]
^[49] see CB 89
^[50] see Hossain v Minister for Immigration (2018) 359 ALR 1; [2018] HCA 34 at [30]- [31] and Minister for Immigration v SZMTA [2019] HCA 3 at [2], [3], [48], [49]
^[51] CB 195-196
^[52] CB 195
^[53] Minister for Immigration v Li [2018] HCA 18; Minister for Immigration v Stretton [2016] FCAFC 11 per Allsop CJ at [11]
^[54] Minister for Immigration v CRY16 (2017) 253 FCR 475; DGZ16 v Minister for Immigration [2018] FCAFC 12; Minister for Immigration v DZU16 [2018] FCAFC 32; (2018) 357 ALR 474
^[55] [2018] FCA 1641 at [42]
^[56] the publication is annexure “DP-2” to the affidavit of Ms Perera
^[57] Plaintiff M174/2016 v Minister for Immigration [2018] HCA 16
^[58] VAAD v Minister for Immigration [2005] FCAFC 117 at [45]; Minister for Immigration v SZGUR [2011] HCA 1; (2011) 241 CLR 594 at [67]; ABT17 v Minister for Immigration [2019] FCA 613 at [25]
^[59] CB 213