AEH18 v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FedCFamC2G 605

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

AEH18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 605

File number(s):

SYG 104 of 2018

Judgment of:

JUDGE LAING

Date of judgment:

17 July 2023

Catchwords:

MIGRATION – application for judicial review of a decision by the Immigration Assessment Authority (“IAA”) – whether the IAA misapplied s 473DD of the Migration Act 1958 (Cth) – whether the IAA overlooked a number of documents that were centrally relevant to the applicant’s claims – application succeeds

Legislation:

Migration Act 1958 (Cth)

Cases cited:

AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; (2018) 261 FCR 503

CVV16 v Minister for Home Affairs [2019] FCA 1890

FMA17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 456

Minister for Immigration and Border Protection v CLV16 [2018] FCAFC 80; (2018) 260 FCR 482

Minister for Immigration and Border Protection v CPA16 [2019] FCAFC 40; (2019) 268 FCR 379

Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99

Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217

SZTFQ v Minister for Immigration and Border Protection [2017] FCA 562

Division:

Division 2 General Federal Law

Number of paragraphs:

39

Date of hearing:

6 June 2023

Place:

Sydney

Counsel for the Applicant:

Mr C Honnery

Solicitor for the Applicant:

Westside Legal

Counsel for the First Respondent:

Mr G Johnson

Solicitor for the First Respondent:

Sparke Helmore

Second Respondent:

Submitting appearance, save as to costs

ORDERS

SYG 104 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

AEH18

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

order made by:	JUDGE LAING
DATE OF ORDER:	17 JULY 2023

THE COURT ORDERS THAT:

1.A writ of certiorari issue bringing the decision of the second respondent dated 19 December 2017 into this Court and quashing it.

2.A writ of mandamus issue directing the second respondent to re-determine the review according to law.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE LAING:

1. Before the Court is an application for judicial review of a decision made by the Immigration Assessment Authority (IAA). The IAA affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Temporary Protection (Class XD) (Subclass 785) visa (protection visa).

   BACKGROUND

2. The applicant is a citizen of Iraq who arrived in Australia as an unauthorised maritime arrival in February 2013.

3. The applicant applied for a protection visa on 2 February 2017.

4. On 30 June 2017, the Delegate refused the application. The decision was then referred to the IAA for review.

5. On 19 December 2017, the IAA affirmed the Delegate’s decision.

   THE IAA’S DECISION

6. The IAA did not consider that s 473DD of the Migration Act 1958 (Cth) (Act) permitted consideration of new information that had been provided on behalf of the applicant after the Delegate’s decision. In this regard, the IAA reasoned as follows:

   5.The applicant's representative provided a submission to the IAA on 26 July 2017 (IAA submission), comprising four written pages. The IAA submission restates many of the applicant's claims that were already before the delegate. The IAA submission also addresses the delegate's decision and issues arising and to that extent may be referred to as argument rather than information which I have noted.

   6.The IAA submission includes several new claims that were not before the delegate:

   •That the applicant's employment history will limit the nature of the work he can secure on return to Iraq and that he may be forced into similar work with the Ministry of Justice.

   •That a significant number of individuals in [his home area] will be aware of the applicant's previous employment and will see his return as a sign of support for the Iraqi authorities and as evidence of his political opinion.

   7.The applicant has been represented by registered migration agents before both the delegate and the IAA. Neither the applicant nor his current migration agent has explained why these claims could not have been made earlier, prior to the delegate's decision or why they should be considered credible personal information. Nor has the applicant indicated any exceptional circumstances to justify considering the new information and it is not apparent to me what any exceptional circumstances might be. The applicant has not satisfied me that the information could not have been provided to the Minister before the decision was made or that it is credible personal information. Overall, I am not satisfied that there are exceptional circumstances to justify considering this information.

7. The IAA accepted that:

   (a)the applicant was a national of Iraq, who was a Shia Muslim of Arab ethnicity (at [12] and [15]);

   (b)the applicant was born in the area he had claimed and had lived the majority of his life in a particular area of Iraq (at [15]);

   (c)the applicant was employed as a corrections guard in a prison between 2008 and 2010 (at [37]);

   (d)the applicant worked as a corrections guard in the transportation department and then in the compliance/security affairs department of another prison from 2011 to 2012 (at [37]); and 

   (e)there was an explosion at the Ministry of Justice on 14 March 2013, in which some of the applicant’s colleagues may have been killed (at [38]).

8. The IAA did not accept that:

   (a)the applicant served with the Special Forces in Baghdad from 2003 until 2007. The IAA considered that the applicant had given inconsistent evidence regarding his employment history and that his explanation as to how he came to join the Special Forces, and the role that he performed, was implausible and unpersuasive (at [21]);

   (b)the applicant received threatening phone calls whilst working at the prisons. The IAA considered that the applicant’s evidence regarding calls he claimed to have received in 2010 was “implausible and vague”, and that his evidence regarding the number of calls he claimed to have received subsequently was inconsistent (at [39]);

   (c)there was a real chance of the applicant suffering harm as a result of his former low level role in the Iraqi Corrections Services (ICS). Whilst the IAA accepted that the applicant may have felt unsafe between 2011 and 2012 in his employment as a result of the security situation, it noted that more than 4 years had subsequently passed. The IAA considered that there was nothing to suggest that the applicant would be re-employed by the ICS. Considering available country information, the IAA did not accept that the applicant faced a real chance of harm in his home area (at [40]-[41]);

   (d)the applicant would be subject to an investigation by the Integrity Investigations Unit within the Ministry of Justice if he returned to Iraq. The IAA considered that there was nothing before it, other than assertion, to suggest that government employees were investigated or punished for exceeding their leave and failing to return to work. The IAA also found it implausible that the applicant would not have mentioned in his entry interview being informed that he was being investigated whilst on his way to Australia, if it were true (at [45]);

   (e)having considered available country information, the applicant would face a real chance of harm in or returning to his home area, as a Shia or otherwise (at [46]-[50]); or

   (f)there was a real chance of harm to the applicant as a failed asylum seeker returning from a western country. To the contrary, country information indicated that the practice of seeking asylum and returning to Iraq was “well accepted amongst Iraqis” (at [51]-[54]).

9. Having regard to the above, the IAA concluded that the applicant was not a person to whom protection obligations were owed. Accordingly, it affirmed the Delegate’s decision (at [55]-[60]).

   PROCEEDINGS BEFORE THIS COURT

10. The applicant commenced the current proceedings through an application filed on 12 January 2018. He ultimately relied upon an amended application filed on 19 May 2023 containing the following grounds:

    1. The Immigration Assessment Authority (“IAA”) fell into jurisdictional error by failing to consider claims advanced in the applicant’s submissions dated 26 July 2017.

    Particulars

    a)In submissions to the IAA, the applicant claimed he may be forced to return to his position as a corrections officer within the Department of Justice (CB 184), and that his return to [his home area] would be seen “as a sign of support to the Iraqi authorities and his political opinion” (CB 185).

    b)The IAA incorrectly found these claims were “new information” and consequently did not consider them (D [6] – [7] CB 194).

    c)Even if the claims were “new information”, the IAA failed to correctly perform its statutory task in assessing the claims under s 473DD of the Migration Act 1958 (Cth).

    d)If the IAA had properly considered the claims, there is a realistic possibility that it could have exercised its power differently. As a result, the IAA’s decision was affected by jurisdictional error.

    2. The IAA failed to consider evidence supporting the applicant’s claim to have been a member of the Iraq Special Forces from 2003 – 2007

    Particulars

    a)The applicant provided photographs that showed him in army uniform alongside various army officers (CB 27 – 37) and documents including:

    i.a Certificate for completing the Iraqi Civil Defense Corps Primary Leadership Development Course dated 25 March 2004, with the acronym ‘SFC’ before his name (CB 38)

    ii. a Certificate of Discharge from the Free Iraqi Forces dated 20 May 2003 (CB 39)

    iii. a Certificate of Appreciation for the applicant, with the acronym ‘SFC’ before his name, for outstanding service as platoon sergeant (CB 42)

    iv. a creed of the non-commissioned officers presented to the applicant, with the acronym ‘SFC’ before his name, from the Iraqi Civil Defense Corps (CB 43)

    b)This evidence corroborated the applicant’s claim to have served with the Special Forces, and clearly raised the issue that the applicant has been associated with the US military.

    c)The IAA failed to consider this evidence, which materially affected its assessment of the applicant’s protection claims.

    Ground 2

11. As I have found for the applicant on ground 2, it is convenient to deal with that ground first.

12. The applicant relied upon several documents that were before both the Delegate and the IAA that were not directly referenced in the IAA’s decision. Those documents included:

    (a)numerous photographs of the applicant in what appears to be military uniform alongside what appear to be army officers in military attire. The applicant’s arm is around various people in the photographs, in friendly stance. Many of the subjects are holding weapons. At least one person in the photographs, who is depicted with the applicant’s arm around his shoulder, is attired in what appears to be a military uniform bearing the flag of the United States of America (US) (CB 27 – 37);

    (b)a certificate dated in 2004 that was apparently awarded to the applicant for completing the Iraqi Civil Defense Corps Primary Leadership Development Course, with the acronym ‘SFC’ before his name. The certificate states that it was signed by two persons with what appear to be military positions and the letters “USA” stated in conjunction with their names (CB 38);

    (c)a certificate of discharge from the Free Iraqi Forces dated in 2003 bearing what appears to be the Iraqi and US flags and thanking the applicant from the “people of Iraq, the United States and the world” for his “dedication and courage as a veteran of Operation Iraqi Freedom” (CB 39);

    (d)a certificate of appreciation, adorned with the US flag, with the acronym “SFC” before the applicant’s name, for outstanding service as “platoon sergeant” (CB 42); and

    (e)a “creed of the non-commissioned officer” bearing the applicant’s name, again with the acronym “SFC” before his name, indicating that it was issued by the Iraqi Civil Defense Corps (CB 43).

13. The applicant contended that this evidence was centrally corroborative of his claims to have been a member of the Special Forces and clearly raised the issue of his association with the US military. He submitted that the IAA failed to consider this material when dealing with his claim to have been a member of the Special Forces from 2003 to 2007 (at [21] of its decision) or at all. The applicant therefore submitted that the IAA fell into the species of error considered in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 per Robertson J (SZRKT).

14. The Minister submitted that the more likely inference was not that these documents were overlooked, but rather that the IAA did not refer to the documents because they were considered immaterial. In this regard, the Minister relied upon the following arguments:

    (a)firstly, that the photographs were objectively insignificant in circumstances where no context had been provided and they may have related to the applicant’s role at the prison;

    (b)secondly, that there were potential discrepancies between the documents and the applicant’s claims. It was submitted that the documents at CB 38 and 43 suggested that the applicant was a member of the “Iraqi Civil Defence Corps” rather than the “Special Forces”. The document at CB 39 referred to the applicant’s discharge in 2003 from the “Free Iraqi Forces” rather than the “Special Forces”. That document suggested that the applicant was discharged in 2003 whereas the applicant claimed to have joined the Special Forces in 2003. The document at CB 42 suggested that the applicant was a “platoon sergeant” whereas the applicant claimed to have had a “managerial position in the computer department”; and  

    (c)fourthly, in relation to documents written in Arabic, it was unclear what those documents were. In any event, none of the other documents provided by the applicant purported to show that he was a member of the Special Forces.

15. Relatedly, the Minister submitted that any error in the IAA overlooking such documents could not have been material. This was in circumstances where the applicant’s claimed history with the Special Forces (involving a managerial role in the computer department) did not form part of his claims to face serious or significant harm. The Minister submitted that there was no country information before the IAA suggesting that a person in the applicant’s role would be at risk of such harm.

16. I am unable to accept the Minister’s submissions. The documents relied upon by the applicant under this ground were of obvious and central relevance to his claims to have been involved with the Special Forces. This is so notwithstanding that the details of the documents did not precisely match the detail of the applicant’s claims. The references to bodies such as the “Iraqi Civil Defence Corps” were not necessarily inconsistent with those claims, noting the applicant’s claim to have moved between different groups of the Special Forces and that the acronym “SFC” also appears on many of the documents. Nor were the references to the applicant being a “platoon sergeant” and to being discharged from the “Free Iraqi Forces” in 2003 necessarily inconsistent with the applicant’s claims, in circumstances where the applicant had claimed to have trained as a commando before being deployed as a member of the Special Forces.

17. I accept that the applicant did not expressly claim to face serious or significant harm because of his involvement with the Special Forces. Nonetheless, both the Delegate and the IAA dedicated substantial parts of their respective decisions to dealing with the Special Forces claim. The IAA’s reasoning in relation to this claim, set out at [16]-[21] of its decision, was as follows (substantial redactions have been made to prevent identification of the applicant):

    Employment with the Special Forces

    16. The applicant's claims are [in 2003] he started work in [an area]. His first training was in the military camp in [an area]. Then they were transferred to [a] training camp. During this training they received the news that Saddam was captured. They were transferred to [redacted] and were organised into sarayes (groups) and were then taken to [redacted]. Then they realised all the groups had come together – [various group names]. When they were put in groups the Americans informed them that they were Special Forces run by the Americans. Their training ended in early 2007.

    17. In response to the delegate asking him how he had obtained a position in the Special Forces the applicant claimed that when the American Army came to Iraq they already had Iraqi officers who had been living in America. These Iraqi officers recommended some people to work with the American Army and they were responsible for the accommodation. These Iraqi officers left Iraq 30 years ago because they were persecuted so when they came with the American Army they were originally from [an area]. Because these individuals originated from [an area] but they were working in [another area] they would go back to [the first area] to visit their families and when they did so they would announce who wants these job but they would never choose any person because they would be responsible for them. The person who recommended the applicant for the Special Forces was a lieutenant. The lieutenant knew him as [the area] is a small town and everyone knows each other. The lieutenant was an old friend and when he came back after the fall of the old regime they saw him and met him on a social occasion and they got to know each other again. The lieutenant offered the applicant a job saying he wouldn't recommend anyone he doesn't trust but he would vouch for him. The applicant and the lieutenant went to [an area] to complete all the formalities at [redacted]. In late 2003 this department had been formed. They went to [redacted] and he put his name down. It was formed at [redacted] and he received training. He has documents and certificates that he received. They commenced with a specialist selection test and selected candidates and then they had training as commandos and then after that they were deployed at sarayes (departments). The name of the team was [redacted]. It was divided into four groups. He was initially in team [redacted] and then he moved to team [redacted]. He was in a managerial position in the computer department. He was responsible for managing the computer and allocating tasks.

    18. In response to the delegate asking him to explain the apparent discrepancy between his claim, in the statement attached to his TPV application, to have served in the Special Forces between 2003 and 2007, and the work history he had given in his TPV application, and which he reconfirmed at the outset of the TPV interview, that he was unemployed until 2005 and then from 2005 to 2008 he worked as a salesman selling shampoo and soap, the applicant claimed he joined the special forces in [a month in] 2003. He worked from 2003 till 2007 far from his town in the Special Forces headquarters which were located in the Baghdad airport where there was also a duty-free market. He took goods from the duty-free market and sold them outside.

    19. In response to the delegate indicating that she also had concerns about his credibility in relation to his claim to have worked in the Special Forces because in the employment history he gave in his entry interview he only claimed he worked selling goods like soap and shampoo and then as a corrections officer in [redacted], and did not mention having worked for the Special Forces, the applicant claimed that when he initially came to Australia he was really focusing on what had happened and what was relevant to what had happened to him. Because the main reason for him to come here and cross the ocean was because he had received threats when he was working as a corrections officer. When he was working at the Special Forces he was safe and secure as it was a managerial role and it was at the airport and so there was no danger to him in [redacted].

    20. In respect of the delegate's concerns about the applicant's credibility, the applicant's representative claimed when the applicant came to see her he was under a lot of stress and he didn't like being asked questions about why he didn't want to go back or what had happened to him, so it was hard to get answers from him and so they only put in his statement the bits and pieces that were relevant to the case. At the same time the representative thought the interview would be an opportunity for him to provide further information and explain further. She claimed whatever the applicant had provided during the TPV interview should be considered as his correct answers. When she spoke to him at the time of lodging his statement of claims he didn't want to mention anything about [having been in the Special Forces] because when he first came to Australia he wasn't concerned about providing that information. He wanted to concentrate on the nature of his job during the time he was working at the prisons in [redacted] and the threats he received then. So his not mentioning this employment after entering Australia wasn't deliberate. It was something he didn't think was important because his claims were mainly concentrating on the threats at the time he was employed in the prison.

    21. I do not accept that the applicant served with the Special Forces in [redacted] from 2003 until 2007. The applicant's evidence as to his employment history was inconsistent over time and his explanation at the TPV interview as to how he came to join the Special Forces, and the role he performed, was implausible and delivered in an unpersuasive manner that gave the impression of having been rehearsed. I have considered the applicant's explanation that he didn't mention this particular role in his entry interview because of feelings of stress and because it was not a key claim. However I am not satisfied that his clarifications adequately overcome my concerns about the credibility of this claim.

1. It is readily apparent why both the IAA and the Delegate may have dedicated such substantial parts of their reasoning to this claim, notwithstanding that the applicant had not expressly stated that he feared serious or significant harm on this basis. The country information before both decision makers clearly indicated the need for careful consideration to be given to claims of involvement with the government, the armed forces and, in particular, the US armed forces.  For example, at page 16 of the UNHCR Guidelines before the IAA the following risk profile was considered (footnotes omitted):

   e) Individuals Affiliated with the USF-I, Foreign Governments, NGOs or International Companies

   Civilians (formerly) employed or otherwise affiliated with the former MNF-I/USF-I or foreign governments, NGOs or international companies, as well as their families, are at risk of being targeted by non-state actors for their (imputed) political opinion.³²¹ Since 2003,³²² both Sunni and Shi’ite armed groups³²³ are known to have threatened, kidnapped and killed interpreters, embassy workers, drivers, subcontractors and others affiliated with the MNF-I/USF-I, foreign governments, international companies or organizations, reportedly to deter others from working for them.³²⁴

   Ahead of the full USF-I withdrawal from Iraq, achieved by mid December 2011, advocates and Iraqis (formerly) employed³²⁵ with the US military raised concerns about being left without protection.³²⁶ There are fears that employee records maintained by the USF-I may have leaked to armed groups.³²⁷ Perpetrators of violence against Iraqis affiliated with the MNF-I/USF-I are both Sunni and Shi’ite armed groups.³²⁸ It is reported that there were no contingency plans to provide emergency protection to former Iraqi employees after the USF-I withdrawal.³²⁹

   Individuals who have worked for the MNF-I/USF-I may be unable to find new employment if their former employer becomes known. Many former USF-I employees allegedly hesitate to reveal their prior work experience to a potential new employer for fear of retribution.³³⁰

2. A dictionary at pages 4-5 of the UNHCR Guidelines defined MNF-I as “Multi-National Forces in Iraq” and USF-I as “United States Forces in Iraq”. Those who had formerly been employed by or affiliated with the US forces in Iraq were therefore identified as a category of people who were potentially at risk of harm.

3. In addition, the IAA cited country information indicating that “individuals working in particular areas of the Government can have an increased vulnerability to deliberate targeting” and in particular that “members of the armed forces as well as senior and mid-ranking officials face a high risk of violence” (at [40]). The UNHCR Guidelines, at page 14, relatedly identified “Former Members of the Iraqi Security Forces” as having a potential risk profile. Also at page 14, it was stated:

   UNHCR considers that individuals associated with, or perceived to be supporting the Iraqi authorities, the [Iraqi Security Forces] or the (former) MNF-I/USF-I are, depending on the circumstances of their claim, likely to be in need of international refugee protection on account of their (imputed) political opinion.

4. The country information before the IAA therefore identified a need for careful consideration to be given to the circumstances surrounding different types of previous affiliation with the government, Iraqi Security Forces and/or the US Forces in Iraq. I infer that this is why the applicant’s claim to have been involved with the “Special Forces” occupied such a significant part of the IAA’s reasoning. Whilst the IAA did not accept the credibility of this claim, its recognition and significance within the context of both the Delegate and the IAA’s reasoning, as well as the country information before both decision makers, establishes that a claim that the applicant may be exposed to relevant harm on this basis sufficiently arose in the sense considered in cases such as AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; (2018) 261 FCR 503 at [18]-[26] per Collier, McKerracher and Banks-Smith.

5. The documents relied upon by the applicant under this ground were centrally relevant to this claim. Whilst the IAA referred at [17] generally to “documents and certificates” the applicant had said at interview that he had received in relation to his involvement with the Special Forces, the IAA’s reasons do not demonstrate any consciousness that such documents were before it. Given my findings above regarding the centrality of the documents and the considerable level of detail regarding the Special Forces claim that otherwise appears in the IAA’s decision, I infer that the IAA would have referred to the documents as evidence before it had they in fact been considered. I therefore accept the applicant’s submission that the documents were overlooked.

6. Had the documents been considered by the IAA, then the IAA may have accepted the applicant’s claim to have been involved with the Special Forces and with the US forces in the manner that he had contended. If this had occurred, then this claim would have needed to have been considered against the country information before the IAA including that which is summarised above. I accept that had this been done, then the IAA may nonetheless have found that the applicant did not meet the criteria for the visa. However, it is possible that the IAA may have found that the applicant’s affiliation with the Special Forces and/or the US Forces in Iraq gave rise to a real chance of relevant harm.

7. It is also possible that if the IAA had accepted the applicant’s Special Forces claim, then it may have taken a more favourable view of the applicant’s credibility. This is noting that determination of credibility is an impressionistic exercise that, “properly formed, takes into account all of the evidence”: SZTFQ v Minister for Immigration and Border Protection [2017] FCA 562 at [44] per Lee J; see also Minister for Immigration and Border Protection v CPA16 [2019] FCAFC 40; (2019) 268 FCR 379 at [39] per Yates, Murphy and Moshinsky JJ. Had this occurred, then it is possible that the IAA may have been more inclined to accept other claims that turned on credibility, such as the applicant’s claims to have received threatening calls and/or to have been informed by a colleague that he was being investigated.

8. For the above reasons, I accept the applicant’s contention that in overlooking the documents, the IAA fell into the species of error found in SZRKT and that such error was material to the IAA’s decision. It follows that ground 2 succeeds.

   Ground 1

9. Given my findings regarding ground 2, it is not strictly necessary to determine ground 1. However, for completeness, I note that I would not have been inclined to have found that relevant error had been established under this ground.

10. Ground 1 contended that the IAA erred in its application of s 473DD of the Act in assessing what it regarded as the applicant’s “new claims” at [6]-[7] of its decision. As set out above, the IAA identified the following new claims:

    •That the applicant's employment history will limit the nature of the work he can secure on return to Iraq and that he may be forced into similar work with the Ministry of Justice.

    •That a significant number of individuals in [his home area] will be aware of the applicant's previous employment and will see his return as a sign of support for the Iraqi authorities and as evidence of his political opinion.

11. The applicant contended that the above was not “new information” but rather submissions or argument based upon material that was before the Delegate.

12. In an early set of written submissions, the applicant’s then representative observed that the applicant had previously claimed to have been known in [his home area] and to fear harm arising from his previous employment. What the IAA had identified as “new claims” were said to have “only amounted to submissions” that “should properly have been regarded as argument rather than new information”. Later submissions filed on behalf of the applicant contended that the “submissions” made in this regard responded to the Delegate’s decision and flowed from material that was before the Delegate.

13. I have not accepted the applicant’s arguments under this ground. As the Minister submitted, each of the new claims that were identified by the IAA amounted to information in the sense of “a communication of knowledge about some particular fact, subject or event”: Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217 at [24] per Gageler, Keane and Nettle JJ (see also Minister for Immigration and Border Protection v CLV16 [2018] FCAFC 80; (2018) 260 FCR 482 at [50]-[54] per Flick, Griffiths and Perry JJ). This is so notwithstanding the fact that they were put forward in response to the Delegate’s decision.

14. Whilst the applicant had claimed to have been known in his home area, and to have feared harm arising from his previous employment, it is apparent that these were not the matters that were identified by the IAA as amounting to “new information”. Those matters were considered by the IAA (at [8], [17], [22]-[45] and [58] of its decision). 

15. The applicant does not appear to have claimed or otherwise put forward information, prior to the Delegate’s decision, that his “employment history will limit the nature of work he can secure” such that he “may be forced into similar work with the Ministry of Justice” (as he claimed through submissions to the IAA). This was not information that was provided through the applicant’s recitation of his employment history in the earlier materials.    

16. Nor does the applicant appear to have claimed or otherwise put forward information prior to the Delegate’s decision that “a significant number of individuals in the city would be aware of the applicant’s previous employment and therefore would see his return as a sign of support to the Iraqi authorities and his political opinion” (as he later claimed). Such information was not contained within the material that was before the Delegate. Whilst country information indicated that employment in certain government positions may result in the imputation of a political opinion, the information that was provided on behalf of the applicant went further than this. It purported to communicate additional knowledge or information about (a) the availability of work to the applicant, and (b) how his return would be perceived by a significant number of people in a particular area.

17. For these reasons, I have not accepted that the IAA erred in construing these matters as “new information” for the purposes of s 473DD of the Act.

18. In later submissions, the applicant additionally contended that if the IAA were correct in characterising the claims as “new information”, it nonetheless failed to correctly consider if they were credible personal information that may have affected the consideration of the applicant’s claims. In this regard, the applicant submitted that the IAA did not assess whether the claims were capable of being believed, but instead “fixated” upon the lack of explanation provided by the applicant.

19. I have not accepted this argument. Whilst the IAA’s reasoning at [6]-[7] was brief, it falls to be construed within the context of there being no statutory requirement to give reasons for a s 473DD determination: FMA17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 456 at [68] per Kenny J. That is not to say that reasons given cannot perform an important role in construing whether the IAA performed its statutory task: see CVV16 v Minister for Home Affairs [2019] FCA 1890 at [28]-[31]. However, I have not been persuaded that the reasons given by the IAA demonstrate relevant error in this regard. In particular, the applicant has not persuaded me that it was closed to the IAA to have not been satisfied that the information was credible personal information, in circumstances where no explanation of this had been provided by the applicant. I am not persuaded that the brevity of the IAA’s reasoning in this regard demonstrates that the IAA did not evaluate whether the information in question was credible personal information in the requisite sense, or otherwise reveals relevant error.

20. For the above reasons, I have not found jurisdictional error in respect of ground 1.

    CONCLUSION

21. As the applicant has succeeded on ground 2 of his application, that application succeeds.

22. I will hear from the parties in relation to costs.

I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing.

Associate:

Dated:       17 July 2023