AAZ19 v Minister for Immigration
[2020] FCCA 1346
•29 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AAZ19 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1346 |
| Catchwords: MIGRATION – Application for Safe Haven Enterprise Visa – adverse credibility findings against applicant – claimed errors on the part of the Authority found not to be jurisdictional errors – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5H(1), 5J, 36(2)(a), 36(2)(aa), 473CB, 473DD, . |
| Cases cited: Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217. SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214. ABJ17 v Minister for Immigration and Border Protection (2018) 260 FCR 295. BJK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCAFC 171. Hossain v Minister for Immigration (2018) 264 CLR 123. Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421. BLD16 v Minister for Immigration and Border Protection [2017] FCA 1400. Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611. Minister for Immigration and Citizenship v Li (2013) 249 CLR 332. |
| Applicant: | AAZ19 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | BRG 10 of 2019 |
| Judgment of: | Judge Egan |
| Hearing date: | 25 May 2020 |
| Date of Last Submission: | 25 May 2020 |
| Delivered at: | Brisbane |
| Delivered on: | 29 May 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr D. Godwin |
| Counsel for the First Respondent: | Mr J. Byrnes |
| Solicitors for the First Respondent: | Minter Ellison |
| Second Respondent: | Submitting appearance save as to costs |
ORDERS
That pursuant to rule 2.08B of the Federal Circuit Court Rules 2001 (Cth), the following documents are to be confidential, with only the parties to the proceeding and their legal representatives being entitled to inspect the documents:
(a)Court Book, filed 21 February 2019;
(b)Affidavit of Toufic Laba Sarkis, filed 3 May 2019; and
(c)Affidavit of AAZ19, filed 25 March 2020.
The Amended Application for Review filed on 27 May 2020 be dismissed.
The Applicant pay the First Respondent’s costs of and incidental to the application for review fixed in the amount of $7,467.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 10 of 2019
| AAZ19 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a Sunni Muslim and a citizen of Iraq who arrived in Australia as an unauthorised maritime arrival on 16 May 2013. The applicant applied for a Safe Haven Enterprise Visa (SHEV) on or about 14 November 2016.
The applicant attended an interview before a delegate of the Minister on 16 August 2018.
On 22 October 2018, a delegate of the Minister refused to grant the applicant the SHEV. The matter was referred to the Immigration Assessment Authority (‘the Authority’) for review.
On 19 November 2018, submissions were made to the Authority on behalf of the applicant. On 22 November 2018, further submissions were made to the Authority by a migration agent on behalf of the applicant. Photographs of different parts of the applicant’s body were included in further material which was sent to the Authority on 26 November 2018.
On 7 December 2018, the Authority affirmed the decision of the delegate to refuse the SHEV.
On 4 January 2019, the applicant filed an Originating Application for review of the decision of the Authority. At the hearing of this matter, and without objection, the applicant relied upon the grounds for review as set out in an Amended Application filed with the Court’s leave on 27 May 2020. The grounds for review relied upon were as follows:
“Grounds of Application
1. The Authority erred in not considering the photographs of the applicant’s scarring as it erroneously treated them as containing new information for the purposes of s 473DD of the Act.
2. The Authority erred in relying upon evidence that did not exist as it found that the applicant stated at the interview that he needed the police report of the bombing of his car for an insurance claim when the applicant made no such claim.”
At [16] of its reasons, the Authority set out the applicant’s claims for protection as follows:
·“He is a Sunni Muslim of Arab ethnicity from Baghdad, Iraq. His parents and all his siblings reside in Baghdad.
·He worked as an electrician after obtaining a degree in that area. His older brother is a qualified electrical engineer. He worked with his older brother as a subcontractor on US aid restoration projects.
·He and his family were threatened due to their being Sunnis and the work of him and his brother.
·His family were forced to leave home on 21 May 2006 and were not allowed to return until 15 September 2009.
·In January 2010, he was subjected to a bomb attack which was planted in his car while he was driving. He was seriously injured as a result.
·He travelled to Turkey. He was registered with the UNHCR in Turkey, and was granted resettlement rights in USA.
·He participated in a freedom protest in Baghdad in March 2013.
·He is very opinionated which would lead to him of being targeted and killed in Iraq.
·In Australia he married an Australian citizen (Iraqi refugee) with whom he had young children.
·He fears harm as a Sunni Muslim, who is persecuted by the majority Shia population and regime and he is at a heightened risk due to his work in the US aid projects.”
Matters Considered By Authority
At [2] of its reasons, the Authority recorded that it had had regard to the material provided to it by the Secretary of the department pursuant to the provisions of s. 473CB of the Migration Act 1958 (Cth) (‘the Act’).
At [4] of its reasons, the Authority recorded that the applicant had been put on notice at his SHEV interview that it was the applicant’s responsibility to raise all claims for protection and provide evidence in support of those claims in circumstances where, if he failed to do so, he may not have another opportunity to provide further evidence.
At [5] of its reasons, the Authority accepted that the applicant had worked on US backed projects in Iraq, and that his family had relocated after the death of a person who had provided sub-contracting work on such projects to the applicant and his brother. The Authority did not consider that there were exceptional circumstances justifying consideration of a hyperlink which led one to an article on Wikipedia concerning foreign aid to Iraq which had been provided to it.
At [6] – [14] inclusive of its reasons, the Authority set out a number of reasons why it was not satisfied that there were exceptional circumstances justifying its consideration of new information given to it by the applicant. The information was noted as having been either provided late, or that it was of such a nature as not to be of any assistance to the applicant or the Authority in the review process.
At [15] of its reasons, the Authority recorded that the applicant provided several photographs which were claimed to depict scars at different parts of the applicant’s body. The applicant said that the scars were as a result of injuries sustained by him in a car bomb explosion. (Reference was made by the applicant to his having sustained such scarring during the course of his Authority interview. [1]) The Authority noted that no information had been provided by the applicant as to when the photographs had been taken. There was no explanation or medical evidence about how the scars might have been caused. It was noted that the applicant’s evidence at the interview before the Authority decision was handed down was that he had had surgery performed on his neck. Similar observations had been made by the delegate concerning the nature of the applicant’s injury. The Authority found as follows:
“I consider the new information has very little probative value as evidence that the injuries/scars were the result of the claimed targeted bombing of his car in 2010. I am not satisfied there are exceptional circumstances to justify considering this new information.” [2]
[1] Transcript (T.) page 41.3 - .17 of annexure A to affidavit of Toufic Sarkis filed on 3 May 2019.
[2] Paragraph 15 of Authority reasons at Court Book (CB) p. 251
Authority’s Analysis of Evidence
At [19] of its reasons, the Authority found that the applicant’s evidence about his claims to having been harmed, and to his fearing harm due to his Sunni religion, were confused and largely inconsistent. At [21], the Authority found that there were sectarian conflicts between Shia and Sunni Muslims in the area of Baghdad in which the applicant’s family had lived, and that the applicant’s family may have received anonymous threatening notes because of their Sunni religion. The Authority did not accept, however, that any threats that the family had received before its displacement in May 2006 were related to the fact that the applicant or his brother had worked on US projects. At [22] – [23] of its reasons, the Authority referred to inconsistencies in the applicant’s versions of events as to when he worked on US projects. In his visa application, the applicant stated that he had worked as an electrical sub-contractor performing maintenance at the US army base from June 2004 until December 2010. When asked at interview as to when he had been so involved, the applicant stated that he did such work between 2003 and 2007. The applicant stated that he did not work at the US army base and only went there to obtain ID cards. The applicant stated that he also worked as a driver/security guard for an MP (name withheld) from August 2009 until December 2009. He also stated that he was in Syria for six months in 2009. It was recorded that the nature of his claimed work on US aid projects was neither substantial nor regular. At [24], it was recorded that when the applicant was asked at the interview when the first trouble started, he initially claimed that he received a threatening phone call in 2010, but then changed his story to his having received such phone call in 2009.
The Authority recorded its findings as to the inconsistent evidence given by the applicant at [24] – [25] of its reasons as follows:
“[24] When asked at the interview when the first trouble started, the applicant claimed that he personally received a phone call in 2010 (he later changed it to 2009) threatening him because he worked for the Americans. He also initially confirmed that he had faced no problems from 2004 until 2010. He stated he didn’t take the phone threat seriously until A was killed, that was when he and his brother stopped the work involving US aid projects and went to live with his uncle in [Town B]. He stated that A was shot a few months after the applicant was threatened by phone, though there an earlier attempt on A’s life. When it was put to him that A being shot in 2010 was not consistent with the claimed timing of the bombing of his car in January 2010, the applicant then stated A was shot in 2009. I note this evidence was also not consistent with what he stated in the visa application that he worked for the US army base from June 2004 until December 2010.
[25] In response to the delegate’s questioning on the threatening notes at the interview, the applicant did not refer to the claim made in the visa application that his family home was shot at and a note was left in their garage saying he and his older brother had to leave Iraq or else would be killed. Later during the interview he claimed that a car exploded 20 metres from his house and his younger brother was injured. The applicant further claimed that due to the fear that the explosion may have been a targeted attack on the applicant and his older brother because of their work, his older brother and his younger brother went to live in Syria for six months before returning to Iraq, during which time the applicant he himself was already in Syria. This claim was not raised in the visa application. Given the claimed significance of this incident, the lack of any mention of it in the visa application casts serious doubt as to the veracity of this claim. The car exploded 20 metres away from his house. I consider it is speculative to assert it was targeted at the applicant or his brother. I am willing to accept a car bomb may have exploded near the applicant’s home, but I am not satisfied it was targeted at the applicant, his brothers or his family. I am not satisfied that his younger brother was injured as a result or that his brothers travelled to Syria for the reasons claimed.”
[Name omitted and pseudonym added]
At [26] of its reasons, the Authority set out inconsistencies in the applicant’s evidence as to when and how the alleged car bomb attack occurred, as well as in relation to the period of time which the applicant had spent in hospital following the bombing – at interview the applicant stated that he stayed in hospital for a nine (9) month period but he later stated that he was only in hospital for a one (1) and a half month period. No documentation relating to the applicant having sustained an injury, or relating to any hospitalisation, was ever produced. Though the Authority recorded that the applicant stated at the interview that he needed the police report provided by him for the making of an insurance claim, the first respondent conceded that no such claim had ever been made by the applicant, and that there was no explanation as to why the Authority might have so found.
At [27] of its reasons, the Authority recorded that the applicant had claimed that after the bomb attack on his car it was no longer safe for him to stay in Iraq. It was noted by the Authority that though the applicant had stated in his visa application that he had travelled to Turkey and lived with a friend after such attack, the applicant in other evidence had said that he had worked for a pharmaceutical company in Iraq from November 2010 to November 2011, and that he had travelled to China and Turkey during such employment for business reasons. The Authority considered that the applicant’s continued presence in Iraq, involving overseas travel as it did, was not consistent with his claimed fears following the January 2010 bomb attack.
At [29] – [30] of its reasons, the Authority recorded inconsistencies in the applicant’s visa application evidence as opposed to his interview evidence. The applicant’s stated reasons for the inconsistencies as being due to his being confused were not accepted by the Authority, because not only was the applicant’s evidence at the interview inconsistent with his visa application claims, it was also internally inconsistent and often changing. The Authority was not satisfied that the discrepancies were due to miscommunications between the applicant and his lawyer as claimed. The Authority did not find the applicant to be a truthful witness in relation to past events, which events would have been significant in the applicant’s life, and which would have been expected to have been recounted without inconsistency. In summary, the Authority recorded its misgivings about the applicant’s evidence at [32] of its reasons as follows:
“[32] In light of my concerns about the applicant’s credibility and the prevalence of document fraud in Iraq, I give the police report and the vehicle registration certificate no weight. Even though person A might have been killed, I am not satisfied that the applicant and his brother were targeted because of their work on US backed projects. I accept that the applicant was accepted by the UNHCR as a refugee in 2012/2013, although the reasons for that recognition are not before me. On the evidence before me, I do not accept the applicant received a threatening phone call, noting his brother who was supervising hundreds of people, did not received a phone call himself. I do not accept his family home was shot at, or a threatening note left in their garage because of his and his brother’s work. I do not accept that he and his brother had to move as a result. I do not accept a bomb exploded near his family home was targeted at him or his family. I also do not accept that the applicant’s car was targeted by a bomb. The applicant claimed at the interview that he had surgeries done because of his injury which had left him with scars on his body. I accept the applicant may have been previously injured or scarred, but I am not satisfied it was in the circumstances claimed. I do not accept that the applicant participated in a protest in Baghdad either in 2013 or earlier. I do not accept he spent most of his time in [Town A] after he left Turkey in January 2013 fearing his safety in Baghdad. I do not accept that the applicant’s unwilling to resettle in the US was because he was resentful that the US had destroyed Iraq or he was worried that it would place his family at an increased risk, noting he had worked on the US aid projects for a number of years and had approached the US Army base in obtaining identification cards. I do not accept his mere assertion that US was not safe. The applicant’s unwillingness to resettle in the US further supports a finding that he was not threatened or targeted by any one in Iraq before he went to Turkey seeking asylum or before he finally left Iraq in 2013. I am not satisfied that the applicant was of adverse interest to anyone in Iraq, including but not limited to Shia militias or the Iraqi authorities.”
[names omitted and pseudonyms added]
Consideration of Applicant’s Claims
At [33] – [34] of its reasons, the Authority recorded the relevant refugee protection criteria as set out in s. 5H(1) and s. 5J of the Act.
At [35] – [38] inclusive of its reasons, the Authority set out the content of relevant country information to which it had access for the purpose of assessing the degree and extent of harassment of Sunni Muslims by Shia Muslims after January 2016. The country information was suggestive of substantial improvement in the security situation in and about Baghdad since the applicant had left Iraq.
At [45] of its reasons, having considered cumulatively all of the evidence before it – including the fact that the applicant had a wife and children who live in Australia – the Authority found that the applicant did not face a real chance of his being subject to violence or any other harm for reasons of his residence in Baghdad, his Sunni ethnicity, his or his brother’s past work for the US, his time in Australia, his seeking of asylum in Turkey, or for any other reason.
For the same reasons, the Authority found that the applicant did not satisfy the complimentary protection criteria in that he did not face a real risk of sustaining significant harm should he be returned to Iraq.
The Authority did not accept that the applicant had met either the s. 36(2)(a) or s. 36(2)(aa) criteria.
Grounds for Review
Ground 1 was an assertion that the Authority had erred in finding that photographs provided to it were new information and that there were no exceptional circumstances justifying their consideration for the purposes of s. 473DD of the Act.
It was submitted on behalf of the applicant that on the occasion of the interview before the delegate, the applicant had shown scarring to his head, face, right leg and left and right hands. [3] It was further submitted on behalf of the applicant that the question of scarring was raised in an interview conducted with an officer of the department on 16 August 2018. [4] The Court accepts that the applicant showed scarring to the delegate, as was evident from the following exchange at the interview before the delegate as recorded in the transcript: [5]
[3] Paragraphs 2 and 3 of Affidavit of the Applicant filed on 4 March 2020.
[4] Annexure A to Affidavit of Toufic Sarkis filed on 3 May 2019 – Transcript p. 41.3 - .17.
[5] Annexure A to Sarkis Affidavit filed on 3 May 2019 – Transcript page 41.3 - .17.
“Member: Okay. So the explosion happened. How long were you in hospital for then?
Applicant: I was in hospital for one and a half months.
Member: Did you say like a few months.
Applicant: Yeah a few months. At the hospital one and a half months. And then I stayed home for 11 months because I cannot walk normally because my head is like this big. I got too many things still on my head. Not surgery just to remove a couple of things. After 6 months I got two things on here.
Member: Is a scar there?
Applicant: I don’t know if you can see. Actually too many of them.
Member: Not really. You got hair on them.
Applicant: Two of them yeah so first thing I stayed one and a half months in the hospital and then I stay 6 months at my uncle’s house. And then after five months I have to go to the hospital to do the small surgery to remove couple of them not all of them.”
In response to the delegate asking ‘Is there a scar there?’, the applicant answered ‘I don’t know if you can see’. The applicant was clearly inviting the delegate to look at scarring. When the delegate replied that the scars could not really be seen because there was hair on the scars, such was at least a recognition that the delegate had looked at the scars but that the scars which were shown to the delegate by the applicant were difficult to see because of the applicant’s hair.
The Court accepts that by the applicant attempting to show the scars to the delegate, and the dialogue surrounding that, there was information before the delegate about scarring which was said to be the result of the alleged car bombing in January 2010. The question for this Court’s consideration was whether the later provision of photographs of bodily scarring on the applicant’s body constituted ‘new information’ or not.
The photographs provided to the Authority clearly depicted scarring. [6] The photographs relied upon, obviously, only constituted a visual narrative of what the applicant claimed to be the result of the alleged bombing. There was no supporting medical evidence which had been put before the Authority which might have, in conjunction with a viewing of the photographs, added an extra novel context or dimension to what had already occurred before the delegate when the applicant had shown his scars to the delegate, and said to the delegate that he had suffered such scarring as a result of the bombing. The photographs were merely confirmatory of those earlier claims.
[6] Photographs relied upon – CB 233 and 235 – 242 inclusive.
In Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at [24], it was said per Gageler, Keane and Nettle JJ as follows:
“24. The term “new information” must be read consistently when used in ss 473DC, 473DD and 473DE as limited to “information” (which may or may not be recorded in a document), in the ordinary sense of a communication of knowledge about some particular fact, subject or event (31), that meets the two conditions set out in s 473DC(1)(a) and (b). The first is that the information was not before the Minister or delegate at the time of making the decision to refuse to grant the protection visa. The second is that the Authority considers that the information may be relevant.”
In the above context, the plurality cited Allsop J’s (as his Honour then was) decision in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214, in which, at [205], it was said:
“Information is that of which one is told or apprised; it is knowledge communicated concerning some particular fact, subject or event: The Complete Oxford English Dictionary, 2nd ed, 1991. In this context, the word has been taken as referring to knowledge of relevant facts or circumstances communicated to, or received by, the tribunal (Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 at [3], approved in VAF at [24] ) or knowledge which has come to, or has been gained by, the tribunal (Paul at [95]).”
When considering whether a new translation of a document before a delegate was new information or not, Bromwich J in ABJ17 v Minister for Immigration and Border Protection (2018) 260 FCR 295 held that the translation was not new information. There was no meaningful difference between the untranslated document before the delegate and the new translation of such document. At [21] – [23], His Honour said as follows:
“[21] The Minister further submits that the English translation of the summons comprised “information” as that word is understood in s 473DC(1), that is “evidentiary material” or “knowledge communicated or received concerning some fact or circumstance” that was before the delegate when the original decision was made, citing, respectively, SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 at [18] and Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 at [53]. The Minister submits that, objectively, the original and translated document communicated the same information and both the delegate and the Authority received the same information. It is said that the original summons was not able to be comprehended by the delegate solely due to her inability to comprehend Farsi. However, that lack of comprehension did not change the nature or content of the information communicated by the document or received by the relevant decision-maker.
[22] The Minister’s submissions must be accepted and preferred to those for the appellant. It should be observed that the appellant’s submissions were advanced on a somewhat bifurcated basis, with it being contended separately that the translation was neither a “document” nor “information” that had been before the delegate. For present purposes at least, I do not consider it to be sound to treat the reference in s 473DC(1) to “documents” and to “information” as having any meaningful difference in application to the translation document; rather, the terms reflect only that “new information”, as it is globally defined, may be manifested differently, but the focus of the provision remains on confining the review to the substance of what was before the delegate unless quite stringent criteria are met. This is the entire purpose of the scheme for review in Pt 7AA. The phrase “documents or information (new information)” in s 473DC(1) must be read in a substantive and practical way and as part of a unified scheme, not in an unduly technical way.
[23] The focus must therefore be on the substance, and not the form, of what was before the delegate. A faithful translation of a document that was before the delegate, no differently to an improved copy of a document that was otherwise difficult to read, does not engage the concept of being “new” in the sense which the phrase “documents or information (new information)” conveys. The requirement is that the document, in the sense of the information it conveys, or the information itself, be new, and not that its capacity to be comprehended or understood is new. In this case, the information in the original summons was before the delegate, but in Farsi. Had the delegate, by chance, been able to read Farsi, no translation would have been necessary. Had the delegate decided to use a Farsi-English dictionary, no translation would have been necessary, although such process may not have been very reliable or accurate. The provision of the English translation achieves the same practical purpose, but to a higher standard that is more likely to accord with the original in terms of the information conveyed and able to be comprehended. A change in comprehension is not a change in the information to which that comprehension applies.”
In a factually similar matter to the subject matter before the Court, the Full Court in BJK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCAFC 171 was dealing with a situation where at the delegate interview the delegate was shown scarring to a person’s abdomen which was said to be of relevance to the application for the visa. When considering whether photographs provided to the Authority, after the delegate interview, were new information or not, their Honours (Middleton, Bromberg and Snaden JJ) at [30] – [32] said as follows:
“[30] There is scope to doubt whether the photographs amounted to “new information”. It was not in question that the Minister’s delegate was shown, in person, the Father’s abdominal scarring. The information conveyed to him in person was, if not the same, then at least very closely related in nature to the information conveyed by the photographs. Both purported to (and, presumably, did) communicate the nature and extent of the Father’s abdominal scarring. That being so, the Father’s contention that the photographs were not “new information” is superficially attractive.
[31] It might be slightly less so in light of the fact that the photographs were taken many months after the Minister’s delegate’s visual inspection of the Father’s abdominal scarring. A visual observation of a particular state of affairs made at a particular point in time might not assimilate the same information as an equivalent observation at a later point in time. The information conveyed to the Minister’s delegate (by means of his visual inspection) might more specifically be characterised as the nature and extent of the Father’s abdominal scarring at that point in time. A photograph of the scarring taken at some other point in time might not convey the same information.
[32] As interesting as that question might be to ponder, it is not one that requires further analysis. This ground can be dismissed on the safer and more immediate footing that the error it bespeaks (if there was one) was not material to the Father’s Review Decision.”
The Court is persuaded that it should follow the obiter of the Court as expressed in BJK17. The scarring as depicted in the applicant’s photographs was clearly visible, and the Court infers that they were the same as, or not materially different to, the scarring earlier shown to and described by the applicant to the delegate. It was old scarring depicted in photographs which were undated. It was clearly open for the Authority to find that the photographs were of very little probative value as evidence that the scars were the result of the claimed targeted bombing of the applicant’s car. The photographs were also not probative of how the applicant was injured such that scarring occurred.
To the extent that the Authority found that the photographs constituted new information, the Court finds that the Authority was in error. As to whether such error was material or not, so as to constitute jurisdictional error, that issue will be dealt with later in the Court’s reasons.
Ground 2
By this Ground, it was asserted that the Authority had fallen into jurisdictional error because it had erroneously found, at [26] of its reasons, that the applicant had stated, at the delegate interview, that he needed to make a report with police of the occurrence of the car bombing so that he could make an insurance claim. [7]
[7] Paragraph 26 of Reasons – CB 254.
The first respondent conceded that the applicant had not made any such statement, during an interview with the delegate to the Minister. The applicant referred to the transcript where the applicant said as follows: [8]
“Member: After the explosion and you were fearing for your life you went to the Police did the Police give you a report.
Applicant: Because when you lose your car you have to prove where’s your car gone because most of the people lose the car. So basically because a lot of cars get stolen and then they get used for explosives so in order to wash my hands of the car basically we have to go to the Police station and report that the car was bombed basically.”
[8] Annexure A to Sarkis Affidavit filed on 3 May 2019 – Transcript page 60.9 - .16.
It was submitted on behalf of the applicant that such error was material, and that had it not been made the Authority could realistically have arrived at a different decision.
Materiality as to Grounds 1 and 2
Whether or not a denial of procedural fairness, or an error on the part of an administrative decision maker as to matters of fact, give rise to jurisdictional error or not, depends on whether the error was made in a way that affected the exercise of power. In that regard, the Court respectfully adopts what was said by Edelman J in Hossain v Minister for Immigration (2018) 264 CLR 123 at [69] – [72] where His Honour said:
“[69] The decision in SZIZO illustrates a common manner in which this concept of materiality is part of the implication that a decision will not be invalid or beyond authority where the error could not have affected the result of the decision. Another example was contemplated in the joint judgment in this Court in Kirk v Industrial Court (NSW). In that case, the erroneous reversal of the onus of proof was a jurisdictional error. However, the joint judgment observed that there may be some departures from the rules of evidence that would not warrant the grant of relief in the nature of certiorari. In other words, the joint judgment contemplated that a non-material departure from the rules of evidence might not be either a jurisdictional error or a material error of law on the face of the record.
[70] This approach to materiality as part of the implication concerning when an action by a decision maker will go beyond power can also be seen in the classic description by this Court of the range of possible jurisdictional errors in Craig v South Australia. In that case, the Court gave examples of errors of law by an administrative tribunal that could be jurisdictional errors: identifying the wrong issue; asking the wrong question; ignoring relevant material; relying upon irrelevant material; and, in some circumstances, making an erroneous finding or reaching a mistaken conclusion. Speaking of the usual implication that arises from the statute, the Court said that if one of these errors is made:
"and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it."
[71] In Minister for Immigration and Multicultural Affairs v Yusuf, McHugh, Gummow and Hayne JJ reiterated the usual implication that for an error to be jurisdictional, what "is important" is that the error is made "in a way that affects the exercise of power". More recently, in a context relevant to the availability of relief under s 75(v) of the Constitution in light of s 474 of the Migration Act, Gageler and Keane JJ described jurisdictional error as "a material breach of an express or implied condition of the valid exercise of a decision-making power conferred by that Act".
[72] In summary, although the issue will always be one of construction of the express or implied terms of the statute, an error will not usually be material, in this sense of affecting the exercise of power, unless there is a possibility that it could have changed the result of the exercise of power. In other words, materiality will generally require the error to deprive a person of the possibility of a successful outcome. There may be unusual circumstances where an error is so fundamental that it will be material whether or not a person is deprived of the possibility of a successful outcome. One circumstance, for reasons that could include respect for the dignity of the individual, may be an extreme case of denial of procedural fairness. Another may be the circumstance discussed by Nettle J, where a decision maker fails to exercise jurisdiction to decide a question according to the applicable criterion. No such circumstances arise on this appeal.”
Further, in Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, Bell Gageler and Keane JJ at [45] and [46] said as follows:
“[45] Materiality, whether of a breach of procedural fairness in the case of an undisclosed notification or of a breach of an inviolable limitation governing the conduct of the review in the case of an incorrect and invalid notification, is thus in each case essential to the existence of jurisdictional error. A breach is material to a decision only if compliance could realistically have resulted in a different decision.
[46] Where materiality is in issue in an application for judicial review, and except in a case where the decision made was the only decision legally available to be made, the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof. Like any ordinary question of fact, it is to be determined by inferences drawn from evidence adduced on the application.”
The Court finds that the applicant has not discharged the onus borne by him in respect of either Ground 1 or Ground 2 of the Amended Application for Review on the question of materiality. Both the photographs and the erroneous insurance claim finding were issues peripheral to the important questions which had to be addressed by the Authority. On those important questions, the Authority made findings adverse to the applicant after having cumulatively considered all of the evidence before it. Relevantly, the Authority found as follows:
a)The photographs were of little probative value when assessing the applicant’s claims as to whether the applicant sustained injuries and was scarred as a consequence of the alleged car bombing in 2010.
b)The Authority pointed to a significant number of discrepancies and inconsistencies in the claims made by the applicant, causing the Authority to find, at [30] of its reasons, that the applicant had not provided a truthful account of his past experiences relating to his material claims. The Authority made adverse credibility findings at [26], [27], [30] and [32] of its reasons.
c)The Authority did not accept that the applicant’s car had been targeted for bombing. The Authority accepted that the applicant had scarring but was not satisfied that such scars were due to the claimed car bombing.
The adverse credibility findings made by the Authority went to the root of the applicant’s claims for fearing harm should he return to Iraq. The fact that the Authority failed to have regard to the photographs provided to it was unsurprising in the light of the applicant not providing any contemporaneous photographs of alleged injuries sustained by the applicant in 2010 consistent with a car bombing, or any medical report verifying that the applicant had sustained injuries as claimed at that time. A series of photographs lacking any factual context was of no value to the Authority. Even if the Authority had considered that there were exceptional circumstances justifying its consideration of the photographs, any such consideration could not have realistically resulted in the Authority arriving at a different decision.
The same considerations apply to the Authority’s insurance claim finding. Though the error on the part of the Authority is incapable of explanation, the making of such error was not critical to, or material to, the final decision arrived at by the Authority. Put another way, the Authority was not distracted from properly arriving at a considered decision by its having made the erroneous insurance claim finding. Such finding, in any event, was inconsequential in the light of the Authority’s other finding that the car bombing, as claimed by the applicant, did not occur. In the light of such finding, the reason for the making of any report to the police was irrelevant. The error was within jurisdiction.
As was said by Derrington J in BLD16 v Minister for Immigration and Border Protection [2017] FCA 1400 at [37]:
“[37] It would appear that a jurisdictional error might arise as a result of an illogical, irrational or unreasonable finding of fact which is “on the way” to a final conclusion (see Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 648, [131]-[132]; Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at 137-138, [151]-[153]; SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 at [61]-[62]; CQG15 v Minister for Immigration and Border Protection (2016) 70 AAR 413 at 434-435, [60]). However, such errors of fact will be within the jurisdiction of the Tribunal to make if they are not critical to, or are immaterial to the final outcome. This point was made by Wigney J in Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210 where his Honour said:
55. Nevertheless, allegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error on the part of the Tribunal: SZRKT at 137 [148]. The overarching question is whether the Tribunal's decision was affected by jurisdictional error: SZRKT at 137-138 [151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at 598-599 [83]-[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship [2013] FCA 123 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal's ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration and Citizenship (2013) 135 ALD 276 at 291 [66]; SZWCO at [64]-[67].
This paragraph was cited with approval by the Full Court of this Court in CQG15 v Minister for Immigration and Border Protection at 434, [60].”
The Authority clearly engaged upon a consideration of the applicant’s claims and found against the applicant. It has long been accepted that different minds might legitimately reach different conclusions. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [131]:
“[131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, 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.”
Neither could the decision be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:
“[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
…
[76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”
There is no merit to either Ground 1 or Ground 2 of the Amended Application for Review.
The applicant has not established jurisdictional error on the part of the Authority.
The Amended Application for Review is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Egan
Associate:
Date: 29 May 2020
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