Agc17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2020] FCCA 887
•22 April 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AGC17 v MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS & ANOR | [2020] FCCA 887 |
| Catchwords: MIGRATION – Review of decision by immigration assessment authority – whether immigration assessment authority’s decision affected by jurisdictional error – whether the immigration assessment authority failed to have regard to all relevant evidence – whether the immigration assessment authority erred in failing to advise the applicant of the existence of an invalid certificate purportedly issued under s.473GB of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5, 31, 36, 65, 411, 422B, 424A, 425, 473BA, 473BC, 473CA, 473CB, 473CC, 473DA, 473DD, 473GB, 474, 476 Migration Regulations 1994 (Cth), reg.2.01. Treaties: Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954), Art 1A. Protocol Relating to the Status of Refugees, opened for signature 31 January 1967 (entered into force 4 October 1967). |
| Cases cited: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 DAO16 v Minister for Immigration and Border Protection [2018] FCAFC Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 |
| Applicant: | AGC17 |
| First Respondent: | MINISTER FOR IMMIGRATION CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSSESSMENT AUTHORITY |
| File Number: | SYG 136 of 2017 |
| Judgment of: | Judge Emmett |
| Hearing dates: | 23 May 2019, 10 March 2020 |
| Date of Last Submission: | 10 March 2020 |
| Delivered at: | Sydney |
| Delivered on: | 22 April 2020 |
REPRESENTATION
| Counsel for the Applicant: | David Godwin (Direct Access) |
| Counsel for the Respondents: | Rachel Francois |
| Solicitors for the Respondents: | Mills Oakley Lawyers |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 136 of 2017
| AGC17 |
Applicant
And
| MINISTER FOR IMMIGRATION CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Immigration Assessment Authority dated 4 January 2017 (“the IAA”), affirming a decision of a delegate of the first respondent (“the Delegate”) made on 25 November 2016 refusing the applicant a Safe Haven Enterprise (subclass 790) visa (“SHEV”).
The applicant is a citizen of Iraq, of Shia faith and Arab ethnicity, who fears harm from Islamic militias, including Asa’ib Ahl al-Haq (“AAH”), in Iraq.
Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the applicant’s claims in support of a SHEV, a summary of the decision of the Delegate, and a summary of the IAA’s review and decision.
Background
On 28 March 2013, the applicant arrived in Australia as an unauthorised maritime arrival.
On 15 March 2016, the applicant lodged an application for a SHEV with the Department of Immigration and Border Protection (“the Department”).
On 25 November 2016, the Delegate refused the applicant’s application for a SHEV.
On 30 November 2016, the Delegate’s decision refusing the applicant a SHEV was referred to the IAA.
On 4 January 2017, the IAA handed down its decision affirming the decision of the Delegate not to grant a SHEV.
On 16 January 2017, the applicant filed an application in this Court seeking judicial review of the IAA’s decision.
Legislative framework
Pursuant to s.65(1)(a) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 65(1)(b) of the Act provides that, if the first respondent is not satisfied about those matters, then the Minister must refuse to grant the visa.
Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a SHEV (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).
Section 36(2)(a) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“Owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 36(2)(aa) of the Act provides that:
“(2) A criterion for a protection visa is that the Applicant for the visa is:
(aa) a non-citizen in Australia (other than a citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.”
Sections 36(2A) and 5 of the Act define “significant harm.”
Part 7AA of the Act provides for a limited form of review of certain decisions (“fast track decisions”). Under Part 7AA, s.473BA of the Act provides as follows:
“Simplified outline of this Part
This Part provides a limited form of review of certain decisions (fast track decisions) to refuse protection visas to some applicants, including unauthorised maritime arrivals who entered Australia on or after 13 August 2012, but before 1 January 2014, and who have not been taken to a regional processing country. These applicants are known as fast track review applicants and decisions to refuse to grant them protection visas are known as fast track reviewable decisions.
Fast track decisions made in relation to some applicants are excluded from the fast track review process. These applicants are known as excluded fast track review applicants.
Fast track review applicants and excluded fast track review applicants are collectively known as fast track applicants.”
Under s.473BC of the Act, the Minister may determine that a specified fast track decision, or a specified class of fast track decisions, may be reviewed.
Pursuant to s.473CA of the Act, the Minister must refer a fast track reviewable decision to the IAA as soon as reasonably practicable after the decision is made.
Under s.474(2) of the Act, a decision of the second respondent is a “privative clause decision”. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.
However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).
Section 473CB of the Act sets out the material that must be provided to the IAA by the Department when a decision is referred for review:
“Material to be provided to Immigration Assessment Authority
(1) The Secretary must give to the Immigration Assessment Authority the following material (review material) in respect of each fast track reviewable decision referred to the Authority under section 473CA:
(a) a statement that:
(i) sets out the findings of fact made by the person who made the decision; and
(ii) refers to the evidence on which those findings were based; and
(iii) gives the reasons for the decision;
(b) material provided by the referred applicant to the person making the decision before the decision was made;
(c) any other material that is in the Secretary's possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review;
(d) the following details:
(i) the last address for service provided to the Minister by the referred applicant for the purposes of receiving documents;
(ii) the last residential or business address provided to the Minister by the referred applicant for the purposes of receiving documents;
(iii) the last fax number, email address or other electronic address provided to the Minister by the referred applicant for the purposes of receiving documents;
(iv) if an address or fax number mentioned in subparagraph (i), (ii) or (iii) has not been provided to the Minister by the referred applicant, or if the Minister reasonably believes that the last such address or number provided to the Minister is no longer correct--such an address or number (if any) that the Minister reasonably believes to be correct at the time the decision is referred to the Authority;
(v) if the referred applicant is a minor--the last address or fax number of a kind mentioned in subparagraph (i), (ii), (iii) or (iv) (if any) for a carer of the minor.
(2) The Secretary must give the review material to the Immigration Assessment Authority at the same time as, or as soon as reasonably practicable after, the decision is referred to the Authority.”
Pursuant to s.473CC(1) of the Act, the IAA must review a fast track reviewable decision referred to it under s.473CA of the Act. Section 473CC(2) provides that the IAA may either affirm the decision under review, or remit the decision for reconsideration.
The requirements of the natural justice rule are exhaustively set out in Subdivision A, Division 3 of Part 7AA of the Act (s.473DA). That section provides as follows:
“Exhaustive statement of natural justice hearing rule
(1) This Division, together with sections 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority.
(2)To avoid doubt, nothing in this Part requires the Immigration Assessment Authority to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.”
Section 473DB(1) of the Act provides that the IAA must review a decision referred to it under s.473CA of the Act on the papers; that is, by considering the review material provided to it under s.473CB without accepting or requesting new information; and without interviewing the referred applicant.
Sections 473DC and 473DD of the Act set out the circumstances in which the IAA may consider new information in the conduct of a review of a fast track reviewable decision. Section 473DC provides:
“Getting new information
(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.”
Section 473DD of the Act provides as follows:
“Considering new information in exceptional circumstances
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.”
The applicant’s application for a SHEV
The applicant provided a statement in support of his SHEV application in which he stated:
i)The applicant is an Iraqi citizen of Shia faith and Arab ethnicity.
ii)The applicant trained as a barber, and opened a barbershop in 2006 in Safwan, Basra.
iii)The applicant operated the barbershop with his brother, W, whom he trained.
iv)The work that the applicant and his brother did was monitored by the Islamic militias, and the shop was raided on more than one occasion.
v)The shaving of facial hair was banned, and many barbers were attacked and killed throughout Iraq.
vi)From May 2010, the barbershop was left in the care of the applicant’s brother while the applicant worked for two years in a foreign security company.
vii)In late April 2012, the AAH threatened to kill the applicant if he did not leave his job and join them.
viii)A few days after the threat, the applicant’s family home was shot at while the family was asleep.
ix)The applicant’s family sought shelter in a neighbour’s house, where they stayed for two nights.
x)The applicant found out that the barbershop had been burnt.
xi)After staying two nights at the neighbour’s house, the applicant and his family went to live at a farm at Al-Zubair for a number of months.
xii)While staying at the farm, the applicant communicated with a friend who helped him to make arrangements to depart Iraq for Australia through Malaysia and Indonesia.
xiii)The applicant claims that in addition to being persecuted, he has no country to protect him and no home to return to.
The Delegate’s decision
On 5 October 2016, the applicant attended an interview with the Delegate.
The Delegate noted that the applicant raised further claims at interview as follows:
i)After the applicant’s departure from Iraq in March 2013, his brother, W, was shot and killed in June 2013.
ii)The applicant’s mother lives by herself in the farm house in Mazar Al Najmi, and his other siblings in Basra have indirect contact with their mother through other people.
iii)The whole of Iraq is under the control of the militias, and that if he returns to Iraq the applicant will be killed by AAH.
iv)As the Iraqi authorities were unable to protect him previously, they would not be able to protect the applicant in the future.
The Delegate also noted submissions from the applicant’s migration agent at the interview in the following terms:
i)Relocation in Iraq is not possible if the agent of persecution is able to pursue the applicant throughout the country.
ii)Previous merits review outcomes confirm the targeting of barbers and hairdressers by extremist groups in Iraq.
iii)The militias are now officially recognised in Iraq, and fear of the militias needs to be accepted and addressed.
iv)A person cannot be returned to a country where he cannot be protected.
The Delegate accepted that the applicant was a citizen of Iraq and a Shia Arab who was born and raised in Basra. The Delegate also accepted that the applicant’s father died in 2006 and his brother, W, was shot dead in 2013 after the applicant departed from Iraq.
The Delegate also accepted that the applicant worked as a barber from 2003 until 2012. The applicant then worked as a barber at a service centre of a company known as JSI.
The Delegate further accepted on the basis of country information before it that the applicant was monitored along with other hairdressers and barbers in Iraq from around 2003 until 2008.
However, the Delegate did not accept that the applicant was of any particular adverse attention on account of his work as a barber. The Delegate therefore did not accept that the applicant was personally targeted by AAH or any Shia militias for being perceived as secular. Nor did the Delegate accept that the applicant was asked to join AAH so that he could be changed from his secular ways.
The Delegate found that the meeting the applicant claimed to have had to arrange for his departure from Iraq to be contrary behaviour to someone who feared for his life, and that he would not have ventured to a public place to meet with a person he had never met.
The Delegate did not accept that the applicant was personally the subject of adverse attention; that his home or barbershop was attacked; that he and his immediate family were displaced from their home; or, that the applicant and his immediate family lived in a farm house until the applicant departed Iraq.
While the Delegate accepted that the applicant’s brother, W, was killed, it did not accept that the AAH was responsible for his death.
The Delegate had regard to extensive country information before finding that as the majority community in Iraq, Shias have a lower chance than other communities of being targeted for harm. That lower chance was further reduced for Shias in the southern provinces, such as Basra, which are Shia dominated. Furthermore, the Delegate noted that Shia militias were not known to target Shia civilians, as their attention was focused elsewhere. Consequently, the Delegate did not find that the applicant experienced anything in that regard which amounted to serious harm.
Whilst the IAA accepted that the applicant had been monitored together with other Iraqi barbers in the past, the Delegate found that as a Shia from the Shia-dominated south of Iraq, the applicant was not uniquely different from the majority of Shias living in the area. The Delegate further found that the applicant did not have an adverse profile with any group. The applicant’s entire family resided in Basra. The Delegate found that if the applicant returned to Iraq, he would not suffer persecutory harm on the grounds of religion or political opinion.
The Delegate found Basra to be relatively safer than other parts of Iraq. On the basis of country information, the Delegate found that the likelihood of the applicant’s ability to subsist in Basra being affected to such an extent that it would amount to serious harm, was remote.
Ultimately, the Delegate was not satisfied that there was a real chance of the applicant suffering persecution for one or more of the reasons mentioned in s.5J(1)(a) of the Act in the receiving country. Therefore, the Delegate found that the applicant was not a refugee as defined in s.5H of the Act and the Refugee criteria in s.36(2)(a) of the Act was not satisfied for that reason.
The Delegate was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Iraq, there was a real risk the applicant would suffer significant harm. Therefore, the Delegate found that the applicant was not a person in respect of whom Australia has protection obligations under the complementary protection criterion in s.36(2)(aa) of the Act.
Accordingly, on 25 November 2016, the Delegate refused the applicant’s application for a SHEV.
The IAA Review and Decision
On 30 November 2016, the Delegate’s decision refusing the applicant a SHEV was referred to the IAA.
The applicant provided no further documents in support of his review.
The IAA set out the applicant’s claims for protection before considering whether the applicant had a well-founded fear of persecution.
The IAA accepted that the applicant trained and worked as a barber from 2003 until 2012 and that he worked as a barber at the security company known as JSI.
The IAA accepted on the basis of a copy of death certificate that the applicant’s younger brother, W, died after the applicant left Iraq on 26 June 2013, and the cause of death was ‘fire shots in the head that caused immediate death’.
The IAA did not accept that the applicant’s younger brother, W, was killed for reasons relating to the applicant, or because W worked as a barber, or that W was killed by the AAH. The IAA was not satisfied on the evidence that the applicant would face a real chance of harm for reasons relating to W’s death at that time or in the reasonably foreseeable future.
The IAA accepted that the applicant’s older brother, S, ceased working as a barber and sold his barber shop in 2006 due to the incidents towards hairdressers at that time, and, S, was at the time of decision working in a car sale yard in Basra. Further the IAA accepted that the applicant’s salon was monitored by militias, who harassed and threatened them not to do western style haircuts, styling, shave beards, and banned trimming and scrubbing of facial hair and eyebrows.
However, the IAA raised concerns about inconsistencies and omissions in the applicant’s written statement and the claims that were made at the SHEV interview. Those inconsistencies largely related to the AAH and included the AAH’s attempts to recruit the applicant, their request for him to cease working with JSI and their subsequent attack on his home.
In light of those inconsistencies, the IAA did not accept the following:
i)That the AAH wanted the applicant to join them because he was a non-practising Muslim, worked as a barber or with a foreign company or that the AAH labelled him as secular or wanted to convert him back to Islam religion.
ii)That the applicant received a text message or threatening calls from the AAH, Jaish al-Mahdi (“JAM”) or armed militant group; or that the AAH, militias, the police or anyone stormed, raided, attacked or opened fire at the applicant’s home; or that the applicant’s barbershop was burnt or destroyed.
iii)That the AAH requested that the applicant join them, leave his job, or attend their office.
iv)That the applicant, his mother and younger brother, W, were displaced from their home, or that they had left their home for the city of Al-Zubair / Al-Najm farms for the reasons claimed.
v)That the applicant is or was known to radical Islamists as a secularised Arab Shia; that he was perceived as a secularised enemy who had collaborated with foreign companies; or that he was regarded as a ‘kafir’ or an apostate; or that he is or was imputed to be hostile to the radical Islamist goal of establishing Iraq as an Islamist state under either a caliphate or an Islamic regime based only on Sharia law.
vi)That the applicant is or was of adverse interest to the AAH, JAM or any other Shia armed groups, or that he suffered psychological fear or harm from his encounters with Islamist terrorists.
Based on country information, the IAA subsequently found that the applicant would not face a real chance of harm from the AAH, JAM or other Shia militant or Sunni insurgent groups for reasons relating to his previous work as a barber, his work with a foreign company or JSI, or for being a non-practising Muslim, a combination of or for any other reason, now or in the reasonably foreseeable future.
The IAA considered the general situation of Shia communities in Iraq and specifically the security situation in Basra. The IAA was not satisfied that the applicant would face a real chance of being harmed in Basra by Sunni militant groups now or in the reasonably foreseeable future.
Further, the IAA found that there was only a remote chance that, if returned, the applicant would be caught up in generalised violence, sectarian violence or tribal conflicts in southern Iraq; or, that the applicant would face a real chance of harm for reasons of being a failed asylum seeker, a returnee from a Western country or having spent time in Australia.
The IAA considered the applicant’s circumstances cumulatively as a young Shia Muslim Arab man, a non-practising Muslim, a failed asylum seeker, a returnee who spent time in the West, who worked in a foreign company, and worked and would work as a barber upon return.
The IAA found that the applicant did not have a well-founded fear of persecution in Basra for any reason now or in the reasonably foreseeable future and therefore the applicant did not meet the Refugee criteria in s.36(2)(a) of the Act.
The IAA found that there were no substantial reasons for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Iraq, there was a real risk that the applicant would suffer significant harm and therefore concluded that the applicant did not meet the complementary protection criterion in s.36(2)(aa) of the Act.
Accordingly, having determined that the applicant did not satisfy the Refugee criteria in s.36(2)(a) of the Act, or the alternative criterion in s.36(2)(aa) of the Act, the IAA affirmed the decision under review.
The Proceeding before this Court
The applicant was represented by Mr David Godwin, of counsel.
By consent, the applicant was given leave to rely on the following grounds in an Amended Application, filed at the commencement of the hearing:
“1. The Authority constructively failed to exercise its jurisdiction as it failed to have regard to what the applicant said in his arrival interview about threats from the militia and the attack on his home when it assessed the consistency of his evidence with regard to those matters
2. The decision is infected with jurisdictional error as the department provided the Authority with and invalid certificate purported to be issued for the purposes of s 437GB of the Migration Act 1958 and the Authority failed to advise the applicant of the existence of a certificate under s473GB of the Migration Act 1958.”
Ground 1
Ground 1 contends that the IAA failed to exercise its jurisdiction in that it failed to have regard to the applicant’s Entry Interview which was as follows:
“Q. Why is your life in danger?
A. After working in the company, JSI, I was threatened. My brother's shop was also burnt down at night time.
Q. When was your brother's shop burnt down?
A. In 2012, in May.
Q. Why was it burnt down?
A. It was burnt down because I was working in the company JSI. The company had something to do with petrol, and people did not like anyone having to do with petrol.
Q. Who burnt down the shop?
It was because I was threatened and told to leave the company. I was told to join the party Al Asaeb.
Q. Who burnt down your brother's shop?
The same people.
Q. Who threatened you?
The same people, the contact came from the Al Asaeb. They called me and told me to leave my work and to join them.
Q. Why did they want you to join them?
A. I do not know why they wanted me. They are involved in gangs, crimes.
Q. What kind of group are they?
A. They are terrorists, they do not believe in anything.
Q. When did you get threatened?
A. End of April 2012.
Q. And then your brother's shop was burnt down in May. Did anything else happen after that?
A. The same night my brother's shop was burnt down, around 0200, they came to our place and they started shooting. I was scared. We escaped from the back door to the neighbour's house. I do not know what happened after that, we escaped. That night, we remained at our neighbour's place.
Q. What happened after that?
A. We transferred to Al Najmi, the farm area. I never went back there. According to the people I was in contact with, they were still looking for me. I was wanted.
Q. Are there any other reasons you decided to leave?
A. Yes. Because of the threats of being killed and because I felt lonely. I used to live in a deserted area. My life was threatened. I do not know what would happen next. I was worried about myself, my mother and my brother. These are the reasons why.”
The applicant relied on the bolded Questions and Answers of the Entry Interview as bolded above.
Counsel for the applicant submitted that that information provided by the applicant at his Entry Interview was not considered by the IAA and that it was relevant to the IAA’s assessment of the applicant’s credit.
The applicant submitted that the inconsistencies found by the IAA were of no substance and in the context of the applicant’s information provided at the Entry Interview provided some consistency to the applicant’s subsequent and expanded claims.
In support, counsel for the applicant took the Court in some detail through AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133 (“AVQ15”). In particular, counsel for the applicant referred to AVQ15 at [23] where the Full Court stated as follows:
“23.A decision-maker is entitled to rely upon inconsistencies in assessing a visa applicant’s credibility but it is important that the process be conducted fairly and reasonably, taking into account that the assessment of the reliability, and credibility, of accounts given by asylum seekers is well recognised as involving a number of particular features and considerations, and calls for a careful and thoughtful approach.”
In AVQ15, the Full Court stated that consistent with the task on review, a decision-maker, such as the IAA, must give appropriate attention to all relevant material in making a finding of inconsistency which then underpins an adverse credibility finding. The Full Court drew a distinction between raising a claim for the first time at an advanced stage of the decision making process and the failure to raise the claim previously. The Full Court made the point that a failure to raise a claim previously may well be relevant to credibility; but such an omission is not correctly described as an inconsistency. Certainly, the decision-maker must assess the significance of the inconsistency and the weight to be given to it. The Full Court stated at [28] as follows:
“ 28.Thirdly, even where it is reasonably open to find that a person has given inconsistent evidence, the decision-maker needs to assess the significance of that inconsistency and the weight to be given to it. This requires consideration of, for example, the significance of the inconsistency having regard to the person’s case as a whole and whether the inconsistency is on a matter which is central to the person’s case or is at its periphery and involves an objectively minor matter of fact. It also requires the decision maker to remain conscious of the particular challenges facing asylum seekers in giving accounts of why they fear persecution, including that they may have to give multiple accounts, using interpreters, and that they may reasonably expect an interview or a review process will provide an opportunity for them to elaborate on, or explain, the narratives they have previously given. Consideration should also be given to whether there is an acceptable explanation for the person having given inconsistent evidence such that the fact of the inconsistency should attract little, if any, weight. How all these matters are weighed and evaluated in a particular case is a matter for the decision-maker, but a failure by the decision-maker to appreciate the particular nature of the task, or to perform it reasonably and fairly, may be the subject of judicial review.”
The first respondent identified concerns expressed by the IAA as follows:
(i) First, the Authority observed at [16]-[17]; AB 162-163 that there was a discrepancy between the applicant’s SHEV interview and the applicant’s written statement in support of the SHEV application concerning whether he received a text message from AAH requesting him to join them and stop working with the foreign company.
(ii) Secondly, the Authority noted at [18]; CB 163 that there was a discrepancy between the applicant’s SHEV interview and his written statement regarding when AAH attacked his home following the phone conversation. In the SHEV interview, the applicant said it was 24 hours, whereas in his statement he said it was a few days.
(iii). Thirdly, the Authority at [19] noted a discrepancy between the applicant’s SHEV interview and his written statement regarding the time at which he said the AAH raided his home. In the written statement he said it was 2 am, whereas in the SHEV interview the applicant said the shooting started at ‘1 o’clock … at night time’.
The IAA considered what the applicant said at the SHEV interview and what the applicant had said in his written statement. In particularising concerns, the IAA stated as follows:
“17. There was no mention of having received a text message from AAH, or that the AAH requested the applicant to attend their office in the applicant’s written statement. The written statement only mentioned about a threatening telephone call from AAH and the subsequent home attack and arson attack against the applicant’s barbershop.
18. At the SHEV interview, the applicant stated that 24 hours since the phone conversation, AAH attacked his home. This differs from his written statement which stated that a few days after the phone call from AAH, they attacked his home.
19. In the written statement, the applicant stated that at 2 a.m. his home was raided and shot at. When asked at the SHEV interview, the applicant stated that the shooting at his home started at ‘1 o’clock…at night time’.
20. According to the applicant, they stormed the house and opened fire, which lasted for about an hour. The threats and the home attack occurred within a short timeframe. In these circumstances, I consider these to be memorable and significant incidents. There is no medical evidence before me to suggest, and I am not satisfied, that the applicant’s evidence is affected by any memory or medical conditions. The written statement was made about three years after the applicant’s boat journey to Australia. I do not consider that the omission or inconsistencies was due to any effect from the boat journey.
21. The applicant was able to provide detailed and specific evidence in his SHEV application and at the SHEV interview in October 2016, including the contents of the text message and phone conversation, and the timing of the claimed incidents. The written statement was prepared in 2016, about three years after the applicant’s arrival in Australia in 2013, and the applicant was assisted by a migration agent in his SHEV application and at the SHEV interview. As such, I am not satisfied that the passage of time since the claimed incidents or trauma could satisfactorily explain the omission and inconsistencies. In my view, if the applicant had in fact received a text message from AAH followed by a threatening call two days later, and his home was attacked 24 hours since that phone call, the applicant would at least be able to provide consistent evidence as to whether the AAH requested him to attend their office; and whether he only received a threatening call, or a text message followed by a threatening call.”
(Emphasis added).
The IAA noted that there was no independent evidence before it to support the applicant’s claimed threats and attacks, such as the claimed text message from the AAH or any reports referencing the claimed home attack or arson attack on the applicant’s barber shop.
The IAA found that since 2008, country information indicated that the situation for hairdressers and hairdressing businesses had improved and, given the improved security situation, “business was buzzing”.
The IAA referred to the applicant’s evidence that he had never been caught doing the forbidden things which he said the AAH had asked him and other barbers not to do and that he was monitored by the AAH from 2006 to 2010. The IAA found that in those circumstances it was doubtful that the AAH would threaten the applicant and attack his home and barber shop in 2012.
Following consideration of the applicant’s claims and detailed consideration of the country information before it, the IAA made the following findings:
“30. Having regard to the totality of the evidence, the applicant’s accepted profile and for the above reasons, I do not accept that AAH wanted the applicant to join them because he is a non-practising Muslim, worked as a barber or with a foreign company or that they labelled him as secular or wanted to convert him back to Islam religion. I do not accept that the applicant received a text message or threatening call from AAH, JAM or armed militant group; or that AAH, militias, the police or anyone stormed, raided, attacked or opened fire at the applicant’s home; or that the applicant’s barbershop was burnt or destroyed. I do not accept that the AAH requested that the applicant to join them, leave his job, or attend their office. I do not accept that the applicant, his mother and younger brother were displaced from their home, or that they left their home for the city of Al-Zubair / Al-Najm farms for the reasons claimed. I am not satisfied on the information that the applicant is or was known to the radical Islamists as a secularised Arab Shia; that he was perceived as a secularised enemy who has collaborated with foreign companies; or regarded as a ‘kafir’ or an apostate; or that he is or was imputed to be hostile to the radical Islamist goal of establishing Iraq as an Islamist state under either a caliphate or an Islamic regime based only on Sharia law. I am not satisfied that the applicant is or was of adverse interest to AAH, JAM or any other Shia armed groups, or that he suffered psychological fear or harm from his encounters with Islamist terrorists.”
The IAA noted that at his Entry Interview, the applicant had stated that he did not know why the AAH wanted him to join them and that they were gangs and involved in crimes.
A fair reading of the IAA’s decision record does not support the applicant’s contention that the IAA failed to have regard to the applicant’s Entry Interview in its consideration of the applicant’s claims. The IAA identified with particularity the inconsistencies which it found, as well as the country information to which it had regard. It is well settled that the country information to which the IAA has regard and the weight it gives that information is a matter for the IAA (see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).
I accept the submission of the first respondent that the concern for the IAA was that two versions of events had been given and, had the IAA expressly referred to the Entry Interview version given by the applicant as being consistent with the content of his SHEV statement, it would not have addressed the IAA’s concerns of the different versions provided.
In the circumstances, the IAA gave appropriate attention to all relevant material in making a finding of inconsistency which then underpinned its adverse credibility assessment of the applicant (see AVQ15 at [26]).
As is apparent from the passages cited above from the IAA’s decision record, the IAA had regard to the applicant’s general circumstances and the timing of the applicant’s various accounts in determining whether the omissions and discrepancies in the applicant’s accounts were adequately explained by the applicant. The IAA determined that they were not. The inconsistencies and omissions identified by the IAA were relevant to central aspects of the applicant’s protection claims.
It is well established that credibility findings are matters for the primary decision-maker, provided they are open on the material, based on rational grounds and arrived at after consideration of matters that were logically probative of the issue and made in a procedurally fair manner (see CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 at [36]-[38] per McKerracher, Griffiths and Rangiah JJ; ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry and Bromwich JJ; DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [30] per Kenny, Kerr and Perry JJ).
The IAA’s findings were rational and logical and probative of the relevant issues before it. As set out above, the IAA’s adverse credibility findings were squarely based on the applicant’s written and oral evidence and the IAA’s assessment thereof in the light of country information before it. The inconsistencies and omissions did not relate to objectively minor matters. Rather, they went to the core of the applicant’s claims and credibility (see Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 per Robertson J).
The reasons that the IAA gave for the findings that it made were detailed, comprehensive and referred to the material, including country information, before it. The reasons were logical, did not proceed on a “false factual premise” and did not overlook relevant material. Having made those findings, it was open to the IAA to reject the applicant’s claims.
It is well established that the IAA is not required to accept uncritically any and all claims made by an applicant (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 per Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the IAA have to possess rebutting evidence before holding that a particular assertion was not made out (see Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).
In the circumstances, the IAA’s findings were open to it on the evidence and material before it and for the reasons it gave, including its adverse credibility findings. As stated above, the IAA’s credibility findings were based on rational grounds and arrived at after considering those factors that were logically probative of the issue of credibility. The IAA’s findings were not tainted by any failure to afford procedural fairness; reaching a finding without a logical or probative basis; or unreasonableness; and, were not without an intelligible foundation (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry, Bromwich JJ).
Accordingly, Ground 1 is not made out.
Ground 2
By Ground 2, the applicant contends that the IAA erred in failing to advise the applicant of the existence of an invalid certificate (“the Certificate”) purported to have been issued under s.473GB of the Act.
The hearing of this matter was adjourned pending the determination of the High Court in BVD17 v Minister for Immigration and Border Protection & Anor (2019) 373 ALR 196 (“BVD17”). BVD17 is authority for the proposition that procedural fairness did not require the IAA to disclose notifications under s.473GB(2)(a) of the Act, whether they were invalid or not.
The applicant relies entirely on the decision of Derrington J in CED16v The Minister for Immigration and Border Protection & Anor (2018) FCA 1451 (“CED16”).
The issue is whether or not the Certificate itself is “new information” such that the IAA was required pursuant to s.473DD to consider whether it should have had regard to that information. The Certificate itself is in the following terms:
“NOTIFICATION REGARDING THE DISCLOSURE OF CERTAIN INFORMATION COVERED BY SECTION 473GB OF THE MIGRATION ACT 1958
I notify the Immigration Assessment Authority that section 473GB of the Migration Act 1958 applies to a document or information in the document titled: ‘EXP067 IMAPS Applicant Integrity Form – 7 June 2016’ contained in PDF Portfolio ‘D-1-PRID1715588394-ALSUKANI-Emad-CID64763280703’.
In my view, this document or information should not be disclosed to the referred applicant or the referred applicant’s representative because:
(a) the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest because it is an internal departmental working document.
The Immigration Assessment Authority’s use and disclosure of a document or information covered by this certificate is subject to subsections 473GB(3) and 473GB(4) of the Migration Act 1958.
This certificate is made pursuant to subsection 473GB(5) of the Migration Act 1958.”
A copy of the document referred to in the Certificate was tendered by the first respondent in a supplementary Court Book, marked Exhibit 2A. The document is headed “Applicant Integrity Form”. It is dated 7 June 2016 and is a checklist of data relating to the applicant.
It is common ground that the content of the document is not the subject of the applicant’s contention. Rather, it is the Certificate itself.
In CED16, Derrington J found that an invalid certificate that also related to a data collection form, was considered to be relevant by the IAA and was relied upon. Derrington J found that the certificate was relevant to the decision made by the IAA and as it was “new information”, the IAA was required to deal with it accordingly. In considering the materiality of the error that Derrington J found in CED16, His Honour noted that “the Court only has to be satisfied that it deprived the affected party of the possibility of a successful outcome: Nobarani v Moriconte [2018] HCA 36 at [38].” Derrington J found that because it was very difficult to reach the conclusion that there was no possibility of a successful outcome had the correct process been followed, the error committed by the IAA in not giving that information to the applicant was material and therefore was a jurisdictional error.
In the case before this Court, the information contained in the Certificate, being the Applicant Integrity Form was information that was before the Delegate and so cannot be “new information” within the meaning of s.473CD of the Act.
There was nothing on the face of the Certificate that was relevant to any claim made by the applicant. In those circumstances, even if the Certificate was “new information” obliging the IAA to consider it in that context, it was not material to the IAA’s decision and could not have made any difference to the IAA’s findings and ultimate conclusions (see Hossain v Minister for Immigration and Border Protection & Anor [2018] HCA 34 per Kiefel CJ, Gageler and Keane JJ); Minister for Immigration and Border Protection v SZMTA & Anor [2019] HCA 3 at [45]-[47] per Bell, Gageler and Keane JJ).
Counsel for the first respondent referred to AIS17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 151 (“AIS17”) where I made a similar decision. Counsel for the first respondent in AIS17 provided helpful submissions in relation to CED16 and I repeat those submissions in this case in concluding that no jurisdictional error arises by reason of the issuing of the Certificate purportedly under s.473GB of the Act. The relevant submissions are as follows:
“42. In CED16 Derrington J considered facts similar to the present case: at issue was a s.473GB certificate about an identity assessment form. The Minister accepted, as he does in the present case, that the s.473GB certificate was invalid (at [14]). Derrington J found that the invalid certificate was considered relevant and relied on by the IAA. His Honour further found that it was "new information" for the purposes of Subdivision C of the Part 7AA and the IAA in that case was required to deal with the invalid certificate in accordance with that Subdivision, including s.473DE (at [57]). Consequently, his Honour was satisfied that the IAA had fallen into jurisdictional error (at [58]).
43. Presently at issue is whether CED16 is applicable in the present case. The first respondent's position is as follows:
a. it formally submits that the decision in CED16 is wrongly decided;
b. notwithstanding (a) above, and subject to the matters outlined in further detail below, this Court is bound by the decision in CED16. That is the position that has been adopted in the two decisions of this Court that have considered the application of CED16: AKQ16 v Minister for Immigration and Border Protection [2019] FCCA 90 (AKQ16) at [36]-[37]; CYE17 v Minister for Immigration and Border Protection [2019] FCCA 102 (CYE17) at [44].
44. It was ultimately apparently accepted by his Honour (and was the agreed position between the parties to the appeal) that in the case before him the information which was the subject of the certificate - being, the identity assessment form - was before the delegate (at [7] and [39]. Derrington J then made a finding that what was not before the delegate in that case was the invalid certificate itself: his Honour stated that "it is not in doubt that the s.473 Certificate was not before the delegate" (at [39]).
45. His Honour (at [40]) then observed that "the information in the 473GB certificate would, prima facie, fall within the definition of 'new information' in s.473DC(1)" (emphasis added). Given the terms of [39] of the judgment, the reference to "information" in the certificate appears to contradict the position accepted by his Honour at [7] and [39] that the identity assessment form (being the information the subject of the certificate) was before the delegate. Acceptance of that fact had the corollary that the identity assessment from was not new information given the terms of s.473DC(1).
46. It is apparent that his Honour was aware of the fact that s.473DC(1), and by extension the matters in s.473DD and s.473DE, was only engaged in respect of information that was not before the delegate. The terms of paragraph [56] of the judgment make this clear: his Honour reasoned that s.473GB was inconsistent with the requirements relating to "new information" and, further, that where a certificate issued under s.473GB was invalid then there was no reason why the provisions of Division 6 (comprising) s.473GA to s.473GD) would have any relevance; in that context, his Honour noted that "if information passed on to the IAA by the Secretary other than pursuant to a valid s.473GB Certificate was not before the Minister when the decision was made, it must be treated as 'new information' and the IAA is required to consider it…" (emphasis added).
47. The analysis his Honour undertook at [38] has a number of difficulties, some of which were identified by his Honour Judge Smith in AKQ16 at [28]-[31]. Those difficulties are not easily reconciled but - when considering [40] of the judgment in CED16 - they are explicable by reference to the idea that what was being considered was only the certificate and not the information to which the certificate related (in CED16, the identity assessment form). Judge Smith reached a similar conclusion: AKQ16 at [31].
48. Consistently with [39] and [56]-[57] of his Honour's judgment in CED16, his Honour's analysis cannot be read as applying both to the certificate and the information to which the certificate relates. Such a reading would be contrary to the facts of CED16, and the textual indicators that clearly suggest that his Honour was concerned with considering the proposition that the certificate itself was "new information" rather than the information to which the certificate related. That being so, the proper reading of his Honour's observation at [40] ("information in the 473GB Certificate") and in [56] is that it refers to the certificate itself and, arguably, the language in the certificate (in other words, the statements made in the certificate and the description of the information that is subject to the certificate).
49. It follows that CED16 is, at most, authority for the proposition that an invalid certificate issued pursuant to s.473GB may be considered to be "new information" for the purposes of s.473DC and s.473DD. This is the position taken by his Honour Judge Smith in AKQ16 (at [31]-[42]) and in CYE17 (at [42]-[48]).
50. That leaves for consideration the question of the 473GB certificate itself. In that regard, it is necessary to consider, as Derrington J did in CED16, the decision of the Full Court of the Federal Court, comprising their Honours Kenny, Tracey and Griffiths JJ, in Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 (BBS16). Pertinently, this Court is bound by BBS16. In BBS16, the Full Court considered a materially similar situation to that presented in CED16: namely, an identity assessment form which was the subject of an invalid certificate pursuant to s.473GB (at [87]). The Minister conceded in that case that the certificate was invalid and the case was expressly argued on that basis. The Full Court considered whether the reasoning of Beach J in MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1 applied to certificates under Division 6 of Part 7AA and found as follows:
a. it expressly rejected the suggestion that 473GB certificates should be considered by reference to the concept of "new information" under Part 7AA (at [90]);
b. the terms of s.473DB strongly suggest that a s.473GB certificate (and related information) is not "new information" for the purposes of Division 3 of Part 7AA (at [92]);
c. the words in s.473DA referring to "together with ss.473GA and 473GB" indicate that "new information" does not apply to those sections. Division 6 deals with a different concept, namely disclosure of information (at [93]);
51. The Full Court clearly concluded that a certificate issued under s.473GB was not properly classified as "new information" bearing in mind the scheme of Part 7AA and the terms of Division 3 and Division 6. Derrington J did consider BBS16 (at [41]-[54]). His Honour's initial consideration appears to have focused on whether, in circumstances where the certificate is invalid, the IAA was required to deal with the underlying information as "review material" pursuant to s.473DB. However, his Honour went on to analyse the treatment of certificates generally in BBS16 as explicable by reference to the fact that the reasoning apparently applied to a valid certificate but not to an invalid certificate (at [51]-[52]). That conclusion is at odds with the fact that BBS16 was a case involving an invalid certificate. Derrington J noted that this was "incongruous" (at [52]) but did not seek to explain in any detail the nature of the incongruity.
52. Judge Smith concluded that, on this issue at least, the decisions were inconsistent (CYE17 at [43]). In that regard, it should be noted that the position in BBS16 was followed by two differently constituted Full Courts in BVD17 and AYF16 v Minister for Immigration and Border Protection [2018] FCAFC 129 (AYF16).
53. In light of the foregoing, the first respondent submits that the proper reading of CED16 is as follows:
a. the ratio of the decision is that the s.473GB certificate itself is "new information": AKQ16 at [42];
b. the decision is inconsistent with, and cannot be reconciled to, the decisions of the Full Court of the Federal Court in BBS16, BVD17 and AYF16.
54. The decision has no bearing on, and does not determine any issue in respect of, the question of whether the underlying information (to which a certificate relates) is "new information". That question will be determined principally by the terms of s.473DC(1): namely, whether the material was before the delegate and whether it is relevant.
CED16 does not apply
55. The basis on which his Honour Judge Smith distinguished CED16 in AKQ16 and CYE17 clearly applies in the present case. His Honour noted in AKQ16 that even if it were to be accepted that the 473GB Certificate was prima facie "new information", the second component of "new information" is whether the information is "relevant" in the sense of having a "bearing on the decision to be made on the review" (at [42]). His Honour concluded that based on the circumstances in that case it could be said that the certificate (and the linguistic information in the certificate) could not rationally affect the decision on review. A similar conclusion applies here. The 473GB Certificate contains only a reference to documents and the expression of an opinion that the information should not be disclosed. The IAA stated that it had regard to the material referred to it by the Secretary under s.473CB of the Act (at [3] of the Decision). It may be inferred in these circumstances that the IAA had regard to the certificate but did not consider it to be relevant.
56. That conclusion is fortified by the recent observation (albeit in the context of s.438 and Part 7 of the Act) of the High Court in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 (SZMTA). The plurality (Bell, Gageler and Keane JJ) noted that a notification under s.438 is not itself information (at [28]). That underscores the fact that the certificate itself could have no evidentiary significance in terms of the IAA's review.
The error was not jurisdictional: materiality
57. In Hossain v Minister for Immigration and Border Protection [2018] HCA 34 (Hossain), their Honours Kiefel CJ, Gageler and Keane JJ noted that the concept of a jurisdictional error goes not only to the presence of an error but to the gravity of that error (at [25]). A statute is ordinarily to be interpreted as incorporating a threshold of material in the event of non-compliance (at [29]). While the statute may set a higher or lower threshold for such materiality, that threshold would not ordinarily be met in circumstances where failing to comply with the statutory condition "could have made no difference to the decision that was made in the circumstances in which the decision was made" (at [30]).
58. In SZMTA, the plurality (Bell, Gageler and Keane JJ) elaborated on the concept of materiality. Their Honours noted that a breach is material to a decision only if "compliance could realistically have resulted in a different decision" (at [45]). In that regard, materiality was an ordinary question of fact to be determined by inferences drawn from the evidence adduced on the application (at [46]). This would include what can be expected to occur in the course of "the regular administration of the Act" (at [47]).
59. The applicant bears the onus of proof in showing that any error is material: SZMTA at [46]. Notwithstanding that point, even if it were to be accepted that the IAA made an error in not treating the 473GB Certificate as "new information", nothing material or significant flowed from that error. In order to assess the materiality of the error consideration would need to be given the ordinary administration of the Act. It may be accepted that if the IAA had determined that the 473GB Certificate were new information, the consequence would have been that it had to consider whether it was required to give that information to the applicant pursuant to s.473DE. The certificate itself could have no bearing on the applicant's claims or the state of satisfaction that the IAA had to achieve: it stated merely that the AIF should not be disclosed. It would, necessarily, not form the reason, or part of the reason, for affirming the delegate's decision: s.473DE(1)(a)(ii).
Is this Court bound to follow CED16?
60. Even if the Court were minded not to accept the matters outlined above then, respectfully, for the reasons that follow it is submitted that the Court would be in a position to decline to follow CED16.
61. It is respectfully submitted that the judgment of Derrington J in CED16 should not be read as suggesting that his Honour departed from a decision of the Full Court (comprising three judges) without any consideration of whether his Honour was bound by BBS16 and whether, if his Honour considered that BBS16 was not binding, why BBS16 was plainly wrong - something that, respectfully, his Honour would have been required to consider in order to depart from a decision of another Full Court. It follows that this Court should consider BBS16 to be binding and to treat CED16 (appearances to the contrary notwithstanding) as not departing from it.
62. In any event, if this Court considers that the two decisions are in conflict then, respectfully, this Court should follow BBS16 as a correct statement of the law. In that regard, there are three Full Court decisions of Federal Court (sitting as three judges) that are contrary to the ratio of CED16. In addition, the analysis of the term "information" is at odds with the decision of the High Court in SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 (SZBYR) and SZMTA.
63. In Prentice v Fewin Pty Ltd, in the matter of Prentice [2017] FCA 490 (Fewin), Browmich J considered himself to be bound by a decision of the Full Court regarding the correct construction of the phrase "capacities in which the claimants claim" in the Bankruptcy Act 1966 (Cth). In reaching that conclusion, his Honour stated that there was no room to depart from the judgment of the Full Court then under consideration by reason of the judgment being per incuriam. Bromwich J followed the decision of the Full Court of the Federal Court in Algama v Minister for Immigration and Multicultural Affairs (2001) 115 FCR 253 (Algama). It follows that his Honour was applying the expression of principle set out in Algama.
64. Insofar as the reasons of Bromwich J in Fewin on this issue contemplate that it is not open to a court lower in the judicial hierarchy to avoid following a decision of a higher court on the basis that the higher court's decision could be distinguished because of an absence of consideration of an issue or authority then, respectfully, his Honour's conclusion is both correct and, in any event, binding. The use of the per incuriam rule in that way has been disapproved: Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166 at 177; Victims Compensation Fund Corporation v Lynch [2012] NSWCA 273 at [39].
65. However, that is not, respectfully, the end of the analysis. In Algama, which Bromwich J considered to be the apposite expression of principle, the Full Court applied the statement of the per incuriam rule set out in the decision of the United Kingdom Privy Council in Baker v The Queen [1975] AC 774 (Baker). In Baker, the Privy Council considered the question of how the courts of Jamaica were to deal with two decisions of the Privy Council that were in conflict. Lord Diplock noted that the per incuriam rule had an "obvious exception": namely where two decisions of the Privy Council were in conflict and the later decision did not purport to overrule the earlier one then the Jamaican courts were permitted to choose which one they would follow and "in doing so they may act on their own opinion as to which is the more convincing" (at 788).
66. It follows that it is open to a lower court, when confronted with two conflicting decisions of equal status, to choose between them. It is submitted that this principle extends to a choice between conflicting decisions of a higher court (e.g. the High Court) and a lower court (e.g. the Federal Court). In appropriate cases, that would permit this Court to choose between conflicting decisions of the Federal Court or between two courts of co-ordinate jurisdiction. In respect of a higher court and lower court conflict, and for the avoidance of doubt, it is the first respondent's position that where there are conflicting decisions of the High Court and the Federal Court, this Court should follow the High Court.
67. The Full Court of the Federal Court in SZGME v Minister for Immigration and Citizenship (2008) 168 FCR 487 (SZGME) stated that it was the duty of a subordinate court to give effect to a more recent decision of the immediately higher court, notwithstanding that it may be in conflict with a still higher court (applying the observations of Lord Simon, in dissent, in Miliangos v George Frank (Textiles) Ltd (1976) AC 443 at 478). SZGME is distinguishable on the facts of that case: namely, that the decision in question mentioned the prior decision in its consideration and it was the subject of full consideration.
68. In the context of the present case, based on the above principles the issue to be addressed is whether SZBYR is in conflict with CED16. The first respondent submits that it is. Derrington J in CED16 treated the s.473GB certificate itself as information for the purposes of s.473DD. That is inconsistent with the treatment of the term "information" as discussed by SZBYR; the High Court found that it did not extend to matters beyond evidentiary material or documentation and the 473GB Certificate does so (being a notification about evidentiary material or documentation, not the material itself). That position is reinforced by the High Court's observation in SZMTA that a certificate could not be information because it was not material of an evidentiary nature (at [28]). The word "information" is referable to the totality of the Act and must be taken to have the same meaning (although that presumption may be displaced). In that regard, it should be noted that the High Court in M174 stated the meaning of "information" (at [24]) and this meaning was taken from SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 at 259 (SZEEU). SZEEU was considered by the High Court in SZBYR.”
In BBS16 v Minister for Immigration and Border Protection & Anor (2017) FCAFC 176 (“BBS16”), the Full Court of the Federal Court of Australia concluded that a certificate issued under s.473GB was not properly classified as “new information”. Derrington J in CED16 distinguished BBS16 on the basis that its conclusion applied only to a valid certificate and not an invalid certificate. However, BBS16 was a case involving an invalid certificate.
This Court is bound by BBS16. I do note that the Court was informed by counsel for the applicant that special leave has been granted by the High Court of Australia in relation to CED16. However, for the reasons referred above, as I do not find it to be an authority by which I am bound, I have proceeded to make my decision in the light of special leave having been granted to CED16.
As stated above, any failure to comply with a statutory condition could have made no difference to the decision that was made in the circumstances in which the decision was made.
Accordingly, Ground 2 is not made out.
Conclusion
A fair reading of the IAA’s decision record makes clear that the IAA understood the claims being made by the applicant and had regard to all material provided in support. The IAA identified independent country information to which it had regard.
The IAA then made findings based on the evidence and material before it. Those findings of fact were open to the IAA on the evidence and material before it and for the reasons it gave. A fair reading of the IAA’s decision record makes clear that the IAA reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the IAA complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The IAA’s decision is not affected by jurisdictional error and is therefore a privative clause decision.
The proceeding before this Court should be dismissed with costs.
I certify that the preceding one-hundred and two (102) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 22 April 2020
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