ABF17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2)

[2020] FCCA 3329

FEDERAL CIRCUIT COURT OF AUSTRALIA

ABF17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCCA 3329

File number(s):

SYG 27 of 2017

Judgment of:

JUDGE MANOUSARIDIS

Date of judgment:

11 December 2020

Catchwords:

MIGRATION – application for remedies under s.476 of the Migration Act 1958 (Cth) (Act) in relation to decision of Immigration Assessment Authority (Authority) affirming decision not to grant Temporary Protection visa – whether Authority identified wrong issues – whether Authority applied s.473DD of the Act on the basis that it could decide not to consider new information because there are no exceptional circumstances justifying its consideration without considering whether any one of the two requirements in s.473DD(b) of the Act were satisfied – no jurisdictional error

Legislation:

Federal Circuit Court Rules 2001 (Cth), Pt 3, Sch 1

Migration Act 1958 (Cth), ss 5(1), 473CA, 473CB, 473CC, 473DB(1), 473DC, 473DD, 476

Privacy Act 1988 (Cth), s 6(1)

Cases cited:

ABF17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 3326

AUS17 v Minister for Immigration and Border Protection [2020] HCA 37

Hossain v Minister for Immigration and Border Protection [2018] HCA 34

Minister for Immigration and Border Protection v CED16 [2020] HCA 24

Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16

Number of paragraphs:

36

Date of hearing:

2 December 2020

Place:

Sydney

Applicant:

Appeared in person, by video, assisted by an interpreter

Counsel for the First Respondent:

Mr G Johnson

Solicitor for the First Respondent:

HWL Ebsworth Lawyers

ORDERS

SYG 27 of 2017

BETWEEN:

ABF17

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	JUDGE MANOUSARIDIS
DATE OF ORDER:	11 DECEMBER 2020

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The applicant pay the first respondent’s costs set in the amount of $7,206.

REASONS FOR JUDGMENT

INTRODUCTION

1. The principal question that arises on this application for remedies under s.476 of the Migration Act 1958 (Cth) (Act) is whether the second respondent (Authority), in determining that “new information” did not meet the criteria specified in s.473DD of the Act, made an error of the sort the Authority was found to have made in AUS17 v Minister for Immigration and Border Protection.[1] If that question is answered in the affirmative, two further questions arise: did the Authority’s error necessarily mean its decision affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Temporary Protection (subclass 785) visa (TPV) is affected by jurisdictional error? If not, was the Authority’s error nevertheless material?

   [1] AUS17 v Minister for Immigration and Border Protection [2020] HCA 37

2. To be in a position to consider these questions, it will be necessary to set out the applicant’s claims for protection; the “new information” the Authority was not satisfied met the requirements of s.473DD of the Act; and the Authority’s reasons for not being satisfied the “new information” met the requirements of s.473DD of the Act, and for affirming the delegate’s decision not to grant the applicant a TPV.

   CLAIMS FOR PROTECTION

3. The applicant stated his claims for protection in a statutory declaration that formed part of his application for a TPV.[2] The applicant claimed as follows:

   (a)The applicant was born in Ahwaz in “Khozestan”, Iran. He is an ethnic Arab, and a Muslim.

   (b)In 2011 a police officer shot the applicant in his right hand after which the applicant was handcuffed, blindfolded, and taken to prison.

   (c)The applicant remained in prison for 15 or 16 months. He was tortured into making a “forced confession”. While under torture, the applicant’s torturers kept asking the applicant who had stolen certain documents, who had made the applicant steal the documents, and who had sent the applicant “to do this”. The applicant did not know what his torturers were talking about. The applicant had heard that 90 people, all Ahwazi Arabs had been arrested with the same charge.

   (d)The applicant was released. The applicant was informed that the reason for his release “was because eventually they found someone else who was responsible”.

   (e)Justice in Iran does not apply to Ahwazi Arabs. The applicant’s arrest was based on no evidence. Ahwazi Arabs face discrimination, particularly in relation to employment, housing, and civil rights.

   (f)The applicant is not and has never been a political activist for Ahwazi Arab issues in Iran. The applicant does not support a country that locks up and tortures people just because of their ethnicity.

   (g)The applicant’s family in Iran told him that “police and intelligence people have come to ask about me since I left”.

   (h)If the applicant is forced to return to Iran he fears he will again be subjected to arbitrary arrest, detention, and torture “solely on the basis” of the applicant’s being an Ahwazi Arab. The applicant will be under continued surveillance if he returns to Iran because he has been in Australia, a Western country, and because he is an Ahwazi Arab.

   [2] CB59-64

4. In his interview with the delegate (TPV interview) the applicant claimed he fears returning to Iran because of his tattoos and his posting on Facebook photographs of himself in Australia with his friends, at discos, doing volunteer work, and helping children.[3]

   [3] CB124, [7]

   DELEGATE’S DECISION

5. The delegate accepted the applicant is of Arab ethnicity; the applicant was imprisoned and tortured as he claimed, and that this occurred because of the applicant’s Arab ethnicity; the applicant is an Ahwazi Arab; there are reports of Ahwazi Arabs being subjected to persecutory treatment in Iran; the applicant has visible tattoos and piercings; he uses Facebook; and the applicant drinks alcohol. The delegate, however, found there was no credible evidence the applicant had been marginalised and subjected to discriminatory policies in accessing education, employment, and adequate housing. Further, the delegate did not consider it credible that the Iranian authorities would continue to have an interest in the applicant, given they released him from prison. The delegate was also not satisfied the applicant faced a real chance of persecution or harm because of the tattoos he carries or because of his Facebook activities.

   THE NEW INFORMATION

6. The applicant’s representative provided submissions to the Authority which included a section titled “Submissions on consideration of new information”.[4] This part of the submissions identified two items of information.

   (a)The first item is described as “[d]ocumentary evidence provided by applicant’s family currently being translated” (Farsi documents).[5] The representative submitted that these documents support the applicant’s claims that the Iranian authorities are still interested in the applicant; and stated the “applicant is currently having this documentation translated and will provide the translation to the IAA”.[6]

   (b)The second item of information is screenshots of photographs from the applicant’s Facebook page. The photographs were said to show the applicant’s western lifestyle and tattoos, and also to show the applicant has Facebook friends from the Ahwazi Arab community. The representative submitted the Authority should consider this evidence because the delegate “did not put to the applicant that a lack of evidence of his Facebook profile would be a concern for the decision maker when making a decision”.[7]

   [4] CB346

   [5] CB349

   [6] CB346

   [7] CB346

7. The applicant’s representative also submitted:[8]

   (a)the information could not have been provided previously because the applicant’s family feared for their and the applicant’s safety; and

   (b)the information “is credible personal information that, had it been known to the department prior to the decision being made, may have affected the department’s decision”.

   [8] CB346

   AUTHORITY’S REASONS

8. The Authority first identified the information that was before it, including three items of information it found constituted “new information”.

   (c)The first item of information is the Farsi documents. The Authority noted that: the Farsi documents appeared to be official documents which the applicant’s representative stated were in the process of being translated into English, but no translations have been provided to the Authority; the applicant’s representative stated the applicant was unable to obtain the Farsi documents before the delegate’s decision because the applicant’s family feared for their and the applicant’s safety; there is no explanation why or how the applicant obtained the Farsi documents after the delegate made his decision; and there is no explanation of what the Farsi documents are, or of what they contain, or how they are relevant to the applicant’s claims for protection other than in extremely broad terms. The Authority concluded it was “not satisfied that there are exceptional circumstances to justify considering this information”.[9]

   (a)The second item of information the Authority identified as new information is the extracts from the applicant’s Facebook page which the Authority described as including a photograph of the applicant in a tattoo parlour getting tattoos, photographs of the applicant with people dressed in Arab attire, and photographs of the applicant and his friends standing at what appears to be a lookout point over an unidentified city in the evening. The Authority noted the Facebook page “is under a different identity to that of the applicant and that it bears no similarity to the applicant’s true identity”; and referred to the applicant’s representative’s submission that the applicant did not provide these documents to the delegate because the applicant did not think the delegate would draw an adverse conclusion from the lack of evidence. The Authority noted that the delegate did not draw an adverse inference on that basis but had instead found there is no real chance the applicant would face harm on the basis of posting photographs on Facebook; and concluded it was not satisfied there are exceptional circumstances to justify considering this information.[10]

   (b)The third item of information the Authority identified was the applicant’s representative’s submission that the applicant’s participating in the Ahwazi Arab community in Australia increases his imputed anti-Iranian government profile. The Authority noted the applicant did not outline what involvement he has had with the Ahwazi Arab community in Australia, or identify the people in the photographs; and in the TPV interview the applicant did not mention he had any involvement with the Australian Ahwazi Arab community. The Authority concluded it was not satisfied there are exceptional circumstances to justify considering this information.[11]

   [9] CB357, [4]

   [10] CB357, [5]

   [11] CB357-358, [6]

9. The Authority then set out the applicant’s claims and its findings. The Authority was not satisfied the applicant will face a real chance of serious harm on his return to Iran as an Ahwazi Arab now or in the reasonably foreseeable future.[12] The Authority relied on its:

   (a)accepting the applicant was arrested and imprisoned for stealing some documents; that he may have been subject to mistreatment while in prison; and that he was released after an investigation resulting in the authorities realising they had imprisoned the applicant by mistake; [13]

   (b)finding the applicant was released because he was no longer of interest to the authorities;[14]

   (c)accepting the applicant is an Ahwazi Arab and that he had experienced “societal discrimination”;

   (d)accepting Ahwazi Arabs have faced varying degrees of harm by the authorities in Iran, but finding that country information referred to incidents where the individuals were either religiously or politically active, or had openly expressed their opposition to the government, and the applicant had stated at the TPV interview that neither he nor any member of his family was a member of any political group, or politically or religiously active; [15]

   (e)finding there was no credible evidence the applicant would be imputed to be politically or religiously active;[16]

   (f)not being satisfied the applicant will not be able to obtain ongoing employment in Iran, even though the applicant may face instances of discrimination as an Ahwazi Arab;[17] and

   (g)not being satisfied the applicant’s previous arrest and imprisonment will attract any greater level of interest from the Iranian authorities on the applicant’s return to Iran.[18]

   [12] CB363, [31]

   [13] CB361, [22]

   [14] CB361, [22]

   [15] CB363, [29]

   [16] CB363, [29]

   [17] CB363, [30]

   [18] CB363, [30]

10. The Authority accepted the applicant has tattoos on his arms and a tattoo on his leg; that a visible tattoo could come to the attention of security forces and result in low level harassment; and that this could result in the imposition of penalties similar to those imposed for dress and hairstyles that are deemed “improper”. The Authority, however, was not satisfied the authorities in Iran would take a greater interest in the applicant because of his tattoos.[19] The Authority relied on its finding that the tattoos did not reflect the applicant’s being anti-Iranian or anti-government;[20] on a country report prepared by the Department of Foreign Affairs and Trade (DFAT) which reported that tattoos are increasingly common in Iran, and in which DFAT stated it was unaware of any specific report of people being targeted by security forces for having a tattoo.[21] The Authority was also not satisfied there is a real chance the applicant will suffer harm on the basis of his real or imputed westernisation.[22] Finally, the Authority was not satisfied the applicant would face a real chance of harm because, if he returned to Iran, he would be a failed asylum seeker.[23]

    [19] CB364, [37]

    [20] CB364, [37]

    [21] CB364, [35]

    [22] CB365, [39]

    [23] CB366, [44]

    HEARING IN THIS COURT

11. The applicant, who is not legally represented, appeared by video link, and was assisted by an interpreter. Most of the hearing was occupied with the applicant’s application for an adjournment, which I refused.[24] After I refused that application I explained to the applicant the procedure that would be followed. I informed the applicant that the Minister had raised an issue which, if decided in a particular way, could advantage him. That issue was whether the Authority applied s.473DD of the Act to the new information it identified consistently with the manner in which the plurality in AUS17 held the Authority ought to apply s.473DD to new information. At my invitation, the Minister first made his submissions, both in relation to the ground of application contained in the application, and in relation to the manner in which the Authority purported to apply s.473DD of the Act. The applicant then made his submissions.

    [24] ABF17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 3326

    GROUND OF APPLICATION

12. The application contains one ground of application, and that is: “[I]dentifying a wrong issue”. As stated, the ground does not identify the issue it is claimed the Authority identified, or the reasons why it is said the issue the Authority identified was wrong. For that reason alone, the ground does not identify any jurisdictional error.

13. In his oral submissions the applicant made submissions that repeated or were directed to matters that were only relevant to the merits of his claims for protection: the applicant submitted his tattoos are political tattoos; the pictures on his Facebook page show he is involved in the Ahwazi Arab community and the Iranian authorities would be aware of that; and the Iranian authorities would be aware he is an asylum seeker. None of these matters are capable of supporting a claim of jurisdictional error by the Authority.

    AUTHORITY’S APPLICATION OF SECTION 473DD OF THE ACT

14. I now consider the principal question that arises on the application before me, namely, whether the Authority made an error of the sort the Authority was held to have made in AUS17.

    Section 473DD of the Act

15. Section 473DD of the Act appears in a particular statutory context. Before I set out the text of s.473DD of the Act, and set out what the plurality in AUS17 said about that section, it will be useful to identify the relevant statutory context in which the section appears.

16. The starting point is s.473DB(1) of the Act, which provides:

    Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB:

    (a)       without accepting or requesting new information; and

    (b)       without interviewing the referred applicant.

17. Subsection 473DB(1) is concerned with the material the Authority must consider when reviewing a fast track reviewable decision. The effect of this subsection is that, subject to “this Part”, namely Part 7AA of the Act, the Authority must not accept or request “new information” when reviewing a fast track reviewable decision.

18. Subsection 473DB(1) is qualified by s.473DC of the Act, which permits the Authority to “get” “new information”. It provides:

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

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

    (b) the Authority considers may be relevant.

    (2) The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.

    (3) Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:

    (a)in writing; or

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

19. Thus, the limitation s.473DB(1) of the Act imposes on the Authority to review the decision referred to it under s.473CA by considering, and considering only, the “review material” identified in s.473CB, is qualified by the Authority being granted power under s.473DC to “get” – “in the sense of seek out”[25] – “new information”. That power “is entirely facultative”;[26] that is, it is a power that permits the Authority, if it considers it appropriate to the exercise of its duty under s.473CC of the Act to review the decision referred to it, to seek out information that was not before the Minister or delegate; but that power itself is qualified by restricting the Authority to get such information only if it considers the information “may be relevant”.

    [25] Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16, at [23]

    [26] Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16, at [23]

20. There are a number of observations that may be made about the definition of “new information” in s.473DC(1) of the Act. First, “information” is not defined; but it has been held that, in Div.3 of Part 7AA of the Act, “information” means “a communication of knowledge about some particular fact, subject or event”;[27] and that “information” “in the context of [Div.3] cannot sensibly be read as extending beyond knowledge of facts or circumstances relating to material or documentation of an evidentiary nature”.[28]

    [27] Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16, at [24]

    [28] Minister for Immigration and Border Protection v CED16 [2020] HCA 24, at [21]

1. Second, the effect of s.473DC(1) of the Act is that “new information” only denotes information that was not before the Minister or delegate and which the Authority considers may be relevant; and, further, it denotes information that the Authority itself seeks out. That might suggest that the Authority cannot get “new information” in any other way. That suggestion, however, would not be correct. In Plaintiff M174/2016 v Minister for Immigration and Border Protection the plurality observed that “new information” may be included in the “review material”:[29]

   There is no inherent dichotomy between new information which meets the two conditions set out in s 473DC(1)(a) and (b) and review material which the Secretary is required to give the Authority under s 473CB. That is because review material is not limited to information that was before the Minister or delegate at the time of making the decision to refuse to grant the protection visa.

   [29] Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16, at [25]

2. Further, s.473DC(3) of the Act itself suggests that “new information” means no more than information that was not before the Minister or delegate; and that is because that sub-section empowers the Authority to invite an applicant to provide “new information”. It cannot reasonably be supposed that the “new information” s.473DC(3) of the Act empowers the Authority to invite an applicant to provide is limited to information the Authority considers may be relevant because that would imply that the Authority must be aware of the nature of the information it may invite the applicant to provide.

3. Third, the consequence of the second observation is that the Authority may come into possession of “new information”, not only by itself seeking information that was not before the Minister or delegate which it considers may be relevant, but also when information that was not before the Minister or the delegate is included in the review material the Secretary might send to the Authority under s.473CB(1), and also when an applicant provides information in response to an invitation under s.473DC(3) of the Act. By implication, therefore, the Authority may come into possession of “new information” in circumstances not covered by s.473DC(1) or s.473CB of the Act. That is suggested by the plurality’s observation in AUS17 that the “Authority “gets” new information within the meaning of s 473DC when and if the Authority physically obtains new information”.[30]

   [30] AUS17 v Minister for Immigration and Border Protection [2020] HCA 37, [4]

4. Fourth, information the Authority receives that was not before the Minister or delegate, and which the Authority has not sought to get under s.473DC(1) does not have the status of “new information” when the Authority physically receives such information. The information acquires that status only after the Authority considers the information “may be relevant”. That follows from what the plurality in Plaintiff M174/2016 said about information that was not before the Minister or delegate that is included in the review material the Secretary sends to the Authority under s.473CB(1) of the Act (emphasis added):[31]

   Information contained in review material given to the Authority by the Secretary that was not before the Minister or delegate at the time of making the decision to refuse to grant the protection visa will become new information if and when the Authority considers that the information may be relevant.  

   [31] Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16, at [27]

5. The same approach would apply to information the Authority may receive in response to a request the Authority makes under s.473DC(3) of the Act.

6. Fifth, there is some tension between the third and fourth observations. The third observation equates the receipt of “new information” with the physical receipt of information that was not before the Minister or delegate before the Authority considers whether the information may be relevant; whereas the fourth observation implies that, except where the Authority itself seeks out “new information”, the Authority’s receiving information that was not before the Minister or delegate, and the Authority’s considering whether such information may be relevant, are distinct events separated by time. That tension may be resolved by reference to the presence of “accepting” in s.473DB(1) and s.473DC(2) of the Act. The notion of “accepting” is broad enough to include not only the physical obtaining of information, but also the intellectual act of determining that the information the Authority has physically obtained may be relevant.

7. The upshot of these observations on the meaning of “new information” is that, where it is permissible for the Authority to accept as “new information” information that was not before the Minister or delegate other than under s.473DC(1) of the Act, the Authority must first consider whether that information may be relevant; and it is only after the Authority considers such information may be relevant that it can treat it as “new information”. A corollary of this conclusion is that if information is not reasonably capable of being relevant, it cannot qualify as “new information”.

8. Next, I turn to s.473DD of the Act, which provides as follows:

   For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

   (a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

   (b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

   (i)  was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

   (ii)is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.

9. The following matters may be noted:

   (a)First, s.473DD of the Act is directed to “new information”; that is to information that was not before the Minister or delegate and which the Authority has considered may be relevant.

   (b)Second, the requirement of paragraph (a) of s.473DD of the Act in relation to new information – that there must be exceptional circumstances to justify considering the new information - must always be met before the Authority can consider that information;[32] and for the requirements of the paragraph to be met, the Authority must be satisfied that the circumstances in relation to the new information are those that are not regularly, or routinely, or normally encountered.[33]

   [32] Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16, at [29]

   [33] Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16, at [30]

   (c)Third, cumulatively on the Authority being satisfied the requirement of paragraph (a) of s.473DD of the Act is met, the Authority must also be satisfied that at least one of the requirements specified in paragraph (b) of s.473DD of the Act is met.[34] In relation to the second of those requirements, the Authority must be satisfied that the new information is information of the sort that falls within the definition of “personal information” given in s.5(1) of the Act,[35] namely, “information or an opinion about an identified individual, or an individual who is reasonably identifiable”, and which was not known by the Minister or delegate but which, had it been known, may have affected the consideration of the applicant’s claims.[36]

   [34] Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16, at [31]

   [35] Which incorporates the definition given in s.6(1) of the Privacy Act 1988 (Cth)

   [36] Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16, at [33]

   (d)Fourth, when considering whether a particular item of new information satisfies the requirements of s.473DD of the Act, the plurality in AUS17 held the Authority must undertake a particular process; namely, the Authority must first consider whether either or both of the requirements of paragraph (b) of s.473DD have been met and, if the Authority finds either or both of the requirements have been met, consider whether, having regard to its findings, the requirement of paragraph (a) of s.473DD is met:[37]

   Logic and policy therefore demand that the Authority assess such new information as it might obtain from the referred applicant first against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and only then against the criterion specified in s 473DD(a). If neither of the criteria specified in s 473DD(b)(i) and s 473DD(b)(ii) is met, the Authority is prohibited from taking the new information into account in making its decision on the review. Further assessment of the new information against the criterion specified in s 473DD(a) is redundant. If either the criterion specified in s 473DD(b)(i) or the criterion specified in s 473DD(b)(ii) is met, that is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a). If both the criterion specified in s 473DD(b)(i) and the criterion specified in s 473DD(b)(ii) are met, that too is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a) and which must heighten the prospect of that criterion being met.

   (e)Fifth, the plurality in AUS17 held that the nature of the non-performance of the procedural duty prescribed by s.473DD of the Act “is not inaccurately characterised as a failure to take account of a mandatory relevant consideration in the purported application of the criterion in s 473DD(a)”.[38]

   (f)Sixth, what is said in (e) is subject to two qualifications.

   (i)The Authority is not required to carry out the procedure referred to in (d) in relation to a particular item of new information if the information is incapable of being assessed by the Authority as meeting the criteria specified in s.473DD(b)(i) and s.473DD(b)(ii). That follows from the plurality’s noting in relation to the new information in question in AUS17 that there was nothing to suggest that the information “was incapable of being assessed by the Authority to meet the criterion specified in s 473DD(b)(ii)”.[39]

   (ii)The second qualification is that s.473DD of the Act is to be construed “as incorporating a threshold of materiality in the event of non-compliance”;[40] and this threshold of materiality “would not ordinarily be met in the event of a failure to comply with” s.473DD “if complying with the condition could have made no difference to the decision that was made in the circumstances in which that decision was made”.[41] That s.473DD of the Act is to be construed as incorporating the threshold of materiality follows from the observation the plurality in AUS17 made that there was “no challenge to [the primary judge’s] further finding that any misapplication of s 473DD in relation to the letter was material to the Authority’s decision on the review”.[42]

   The decision in AUS17

   [37] AUS17 v Minister for Immigration and Border Protection [2020] HCA 37, at [11]

   [38] AUS17 v Minister for Immigration and Border Protection [2020] HCA 37, at [12]

   [39] AUS17 v Minister for Immigration and Border Protection [2020] HCA 37, at [18]

   [40] Hossain v Minister for Immigration and Border Protection [2018] HCA 34, at [29]

   [41] Hossain v Minister for Immigration and Border Protection [2018] HCA 34, at [30]

   [42] AUS17 v Minister for Immigration and Border Protection [2020] HCA 37, at [21]

10. In AUS17 the claimant for protection claimed the Eelam People’s Democratic Party (EPDP) and the Sri Lankan Army (SLA) mistreated him. The delegate accepted the claimant had been mistreated by the EPDP and the SLA, as he had claimed, but found he was no longer a person of interest to those organisations. The claimant’s representative provided to the Authority a letter that post-dated the delegate’s decision that referred to more recent mistreatment of the claimant. The Authority identified the letter as new information. It accepted the letter could not have been provided to the delegate, but found that the letter referred to events that occurred before the delegate made his decision and further found there was no reason to believe the applicant could not have provided to the delegate the information contained in the letter before the delegate made his decision. The Authority concluded it was not satisfied exceptional circumstances existed to justify considering the new information.

11. The High Court found the Authority made a jurisdictional error because it concluded it was not satisfied s.473DD(a) was met in circumstances where it assessed the letter against the criterion specified in s.473DD(b)(i) of the Act, finding it was not met, but it did not assess the letter against the criterion specified in s.473DD(b)(ii) of the Act.

    Minister’s submissions

12. The Minister submitted the plurality in AUS17 is not to be taken as requiring the Authority to engage in any particular formulaic consideration of s.473DD(b) of the Act. The Minister submitted that the Authority will discharge its duty under s.473DD if it may be inferred that the Authority in substance did that which the High Court in AUS17 said the Authority is required to do when assessing new information against s.473DD of the Act. The Minister submitted:

    (a)in relation to the first and third classes of new information the Authority considered, it should be inferred that the Authority assessed the information against both sets of criteria prescribed by s.473DD(b) before it assessed the information against s.473DD(a) of the Act;

    (b)in the alternative to (a), any failure by the Authority to consider the information against both paragraphs (i) and (ii) of s.473DD(b) of the Act was not material to the Authority’s decision; and

    (c)in relation to the second item of new information, the Authority did not assess the information against s.473DD(b)(ii) of the Act; but the Authority made no jurisdictional error because the information was incapable of satisfying paragraph (ii) of s.473DD(b) or, if it were capable of satisfying the criterion, the Authority’s failure to assess the information against that paragraph was not material.

    Determination

13. I am satisfied the Authority did not expressly consider whether any of the first, second, or third items of information satisfied s.473DD(b)(ii) of the Act. I am not satisfied, however, it did not do so because it was of the view that it was at liberty to consider whether s.473DD(a) was satisfied without having to consider whether the three items of information satisfied either or both of s.473DD(b)(i) and s.473DD(b)(ii) of the Act.

    (a)As for the first item of information the Authority considered to be new information – the Farsi documents – the Authority referred to the absence of any explanation about what the documents were, or what is contained in them, or how they are relevant to the claims for protection except in the broadest of terms. In these circumstances, the inference that is available to be drawn, and which I do draw, is that the Authority did not expressly assess the Farsi documents against s.473DD(b)(ii) of the Act because it found they were incapable of being considered relevant to the review. I find the Farsi documents were incapable of being relevant to the review.

    (b)As for the second item of information the Authority considered to be new information – the Facebook photographs to the extent they disclosed the applicant carrying tattoos and having a western way of life – the Authority referred to the relevance the applicant attached to the photographs, namely, to provide information to the Authority the applicant would have provided to the delegate had the applicant been aware the delegate would draw an adverse inference because the applicant did not provide those photographs. The Authority found, however, that the delegate had not drawn any adverse inference of the nature the applicant’s representative submitted the delegate had drawn. The inference that is available to be drawn, and which I draw, is the Authority did not in terms apply s.473DD(b)(ii) of the Act to the photographs because it was of the view the photographs were incapable of satisfying that paragraph because it could not have affected the delegate’s consideration of the applicant’s claims, given the delegate had accepted the applicant had tattoos and could be perceived to have adopted a western lifestyle.

    (c)As for the third item of information the Authority considered to be new information - the photographs to the extent the applicant submitted they showed the applicant was involved with the Ahwazi Arab community in Australia – the Authority noted the applicant did not outline what involvement he had with the Ahwazi Arab community in Australia, or identify the people in the photographs. The inference that is available to be drawn, and which I draw, is the Authority did not in terms apply s.473DD(b)(ii) of the Act to the photographs and submissions because it was of the view the photographs were incapable of being relevant to the claim that the applicant was involved with the Ahwazi Arab community in Australia. I find the photographs, to the extent the applicant submitted they showed the applicant was involved with the Ahwazi Arab community in Australia, were incapable of being relevant to the review.

14. I will now assume, however, that, contrary to the inferences I have drawn, the Authority did proceed on the view that it was at liberty to consider whether s.473DD(a) of the Act was satisfied without having to consider whether the three items of information satisfied s.473DD(b)(i) or s.473DD(b)(ii) of the Act. The question is whether, had the Authority first considered s.473DD(b)(i) or s.473DD(b)(ii) of the Act, that could have made any difference to the decision the Authority made. That question is to be answered in the negative. Each of the three items of information was incapable of reasonably being considered to be relevant to the review – the Farsi documents because they had not been translated, and their contents and intended relevance had not been articulated; the photographs of the tattoos because the delegate had accepted the applicant wore tattoos, as did the Authority; and the photographs to the extent they were said to show the applicant was involved with the Ahwazi Arab community in Australia because the photographs were not supported by information about the nature of the applicant’s claimed involvement with the Ahwazi Arab community in Australia, or the identity of the persons with whom the applicant was photographed. Thus, to the extent it could be said the Authority failed to consider s.473DD(b)(i) or s.473DD(b)(ii) before it considered s.473DD(a) of the Act, its failure to do so was not material to the Authority’s decision not to further consider the new information, or to its decision affirming the delegate’s decision.

    COSTS AND DISPOSITION

15. At the hearing I explained to the applicant that the usual order a court makes when a party loses a case is that he or she is ordered to pay the winning party’s legal costs. The Minister applies for an order that the applicant pay his costs set in the amount of $7,206, being the amount provided for by Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth). The applicant asked rhetorically where he would be able to get the money. I take that to be a submission that the applicant would have no money with which to meet a costs order. That is not a sufficient reason for my not making an order that the applicant pay the Minister’s costs.

1. I propose, therefore, to order that the application be dismissed, and that the applicant pay the Minister’s costs set in the amount of $7,206.

I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis.

Associate:

Dated:       11 December 2020