Ano19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 901
•5 May 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
ANO19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 901
File number(s): SYG 306 of 2019
SYG 307 of 2019
SYG 309 of 2019Judgment of: JUDGE HUMPHREYS Date of judgment: 5 May 2021 Catchwords: MIGRATION – Immigration Assessment Authority – Temporary Protection visas’ (TPV) – whether the Authority’s decision was affected by legal unreasonableness – whether jurisdictional error is made out – jurisdictional error is made out – the application is upheld. Legislation: Migration Act 1958 (Cth) ss 473 pt 7AA Cases cited: ABT17 v Minister for Immigration and Border Protection [2020] HCA 34
APH17 v Minister for Immigration, Citizenship, Migrant services and Multicultural Affairs[2021] FCA 23
AUS17 v Minister for Immigration and Border Protection [2020] HCA 37
CVV16 v Minister for Immigration and Anor [2018] FCCA 3451
Minister for Immigration and Border Protection v Gill (2019) FCR 575
Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1
Minister for Immigration and Border Protection v SZMDS (2010) 240 CLR 611
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3
Minister forImmigration and Border Protection v SZVFW (2018) 264 CLR 541
Number of paragraphs: 54 Date of last submission/s: 20 April 2021 Date of hearing: 20 April 2021 Place: Parramatta Counsel for the Applicants: Mr Godwin Counsel for the Respondents: Mr Kay Hoyle ORDERS
SYG 306 of 2019
BETWEEN: ANO19
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
SYG 307 of 2019
BETWEEN: ANP19
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
SYG 309 of 2019
BETWEEN: ANT19
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE HUMPHREYS
DATE OF ORDER:
5 MAY 2021
THE COURT ORDERS THAT:
1.The name of the First Respondent be changed to the Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs.
2.The applications are upheld.
3.An order that the decisions’ of the Immigration Assessment Authority be quashed.
4.A writ of mandamus directed to the Immigration Assessment Authority requiring them to determine the Applicants’ applications according to law.
5.An injunction restraining the Minister, by himself, or by his Department, officers, delegates or agents, from making the future decision or taking the other action the subject of the proceedings.
6.The First Respondent is to pay the Applicants’ costs, fixed in an amount as agreed or assessed.
REASONS FOR JUDGMENT
JUDGE HUMPHREYS
INTRODUCTION
Each of the applicants’ are brothers. Each of the applicants’ claim to be stateless and of Kurdish ethnicity. The applicants’ arrived in Australia as unauthorised maritime arrivals on 15 March 2013. Each of the applicants’ made materially similar claims for protection, in visa applications submitted on 3 May 2016. Each of the applicants’ was represented by the same Migration Agent.
On 17 August 2018, in separate decisions, the same delegate of the Minister for Immigration and Border Protection (“the delegate”), refused to grant each of the applicants’ a protection visa.
Each of the applicants’ was referred to the Immigration Assessment Authority (“the Authority”) for merits review. The same Authority reviewer, considered each of the applicants’ matters. On 21 January 2019, the same Authority reviewer affirmed the delegate’s decision in relation to each of the applicants’.
Each of the applicants’ now seeks judicial review of the Authority’s decision, on similar grounds. By consent, each matter is being heard together and a joint judgement will issue, as the same issue is raised in each application before the Court.
Any references in this judgement are to the decision in ANO19, but are for all intents and purposes, the same material is replicated in the decisions for ANP19 and ANT19.
THE IMMIGRATION ASSESSMENT AUTHORITY’S DECISION
Given the limited nature of the ground of judicial review, it is not necessary to summarise in full what is a lengthy decision. Each of the brothers’ claim is basically the same.
The applicant brothers’ claim that they were born in Iran, their mother being Iranian and their father being Iraqi. During the Iran Iraqi war, the applicants’ family was expelled from Iran to Iraq. The applicants’ family eventually returned illegally to Iran in 1987. The applicants’ father had to fight for the Iranians. The older brothers’ also eventually served in the Iranian army (the youngest brother received an exemption). The applicant brothers’ family lived in a town in Iran for the next 13 to 14 years until they were expelled by the local government after the townspeople lodged a petition to the effect that the family were foreigners. The applicant brothers’ family moved to a different town, but had to pay the local government of that town, as well as being on reporting conditions to the security office of the Ministry of Foreign Affairs.
In 2009, the applicants’ father was deported to Iraq. The applicants’ other family remained in Iran. The applicants’ father was able to obtain an Iraqi passport. The applicants’ father eventually returned to Iran as a temporary resident on a yearly renewal basis.
In 2009, the applicant brothers’ took part in the ‘Green Movement’ which protested the election result in Iran, claiming it was illegitimate. The applicant brothers’ had no organisational role and did not receive any attention from the Iranian government at that time, as a consequence of their participation.
The applicant brothers’ claim that they subsequently became involved with Khabbat, a group promoting Kurdish independence. The applicants’ claim that in 2012, they were returning from the gym when they were attacked by a group of government security officials. The applicants’ claim that they were hit with rubber truncheons and only escaped, because of the intervention of bystanders. The applicants’ then illegally crossed the border to Erbil where they joined the Khabbat movement. The applicants’ obtained false Iraqi passport’s and travelled to Indonesia, where they travelled by boat to Australia.
The applicant brothers’ claim that their father was killed in Iran shortly after they arrived in Australia. The applicants’ claim they believe that this was as a result of the support of the Khabbat. The applicant’s also claim their sister and mother were subsequently attacked, for the same reason.
Since arriving in Australia, the applicant brothers’ have attended some Kurdish cultural activities and one brother attended yearly protests. One brother claims to have commented on Kurdish issues on Facebook but has since deactivated his account.
The delegate found that each of the applicants’ were Iranian citizens and were not stateless. The delegate accepted that the brothers have participated in the “Green Movement” demonstrations. The delegate found that country information did not support the conclusion that this gave the applicant brothers’ an adverse profile. The delegate did not accept that the applicant brothers’ had been attacked, as they had claimed. The delegate accepted that their father was born in Iraq found he was an Iranian citizen. A delegate accepted that the brothers were of Kurdish ethnicity and that they had been subjected to discriminatory treatment because of this, but it was not sufficiently severe as to amount to serious harm or significant harm. The delegate found that the applicant brothers’ activities in Australia had not given rise to any adverse profile.
On review, the Authority reached the same conclusion in regards to most of the factual issues. The Authority did not accept that the applicant brothers’ became involved in Khabbat. The Authority did not accept that the applicants’ father had been killed for this reason, or that their sister and mother had been attacked. The Authority did not accept that the applicant brothers’ were Kurdish or that they had engaged in any activities in the Kurdish community in Australia.
Critical to this application for judicial review is the finding of the Authority at paragraph 10 of its decision. After the decision of the delegate, the applicant brothers’ supplied further information to the Authority in support of the claims. The applicant brothers’ each supplied a further statutory declaration and a number of further documents and photographs. In relation to the applicants’ sister M, they supplied:
A. A birth certificate
B. A foreign citizens movement permit dated 17 February 2009; and
C. A letter from the civil status registry of northern Khorastan dated 12 November 2007.
It is contended, that the purpose of these documents was to establish that the applicants’ sister had never been an Iranian citizen. The Authority said the following in relation to this new information:
[10]. The applicant has also provided a birth certificate for his sister, M; a foreign citizen’s movement permit for M dated 13 April 2008, relating to travel between 13/02/2009 – 15/03/2009 from Mashad to Qom; and a letter from the Civil Status Registry of Northern Khorasan dated 12 November 2007 which is submitted to be evidence that his eldest sibling has never been granted Iranian citizenship. These documents were not before the delegate and are new information. However, I note that the applicant provided to the delegate an Iranian Foreign National’s ID card for M which states she is an Iraqi national and allowed to reside in Mashad until 20 March 2010. He also provided birth certificates for all of his other siblings to the delegate, but did not provide M’s birth certificate on that date. He has provided no explanation for this. Given that there is already a document in the material before me specifying M was an Iraqi national with a Foreign National’s ID card in Iran, and in the absence of any explanation about the significance of the new information, I am not satisfied that the new information adds anything to the existing information before me. In these circumstances, and also considering the absence of an explanation for why it was not provided to the delegate, I am not satisfied that there are exceptional circumstances to justify considering this information.
It is the above finding that is the subject of agitation in this Court.
GROUNDS OF JUDICIAL REVIEW
In each matter the ground of judicial review is as follows:
Ground One
The decision of the IAA is affected by legal unreasonableness as the reasons given for not considering the applicant’s sister’s birth certificate, a foreign citizen’s movement permit for his sister and a letter from the Civil Status Register for Northern Khorastan as new information under s 473DD of the Act were not logical.
THE APPLICANT’S SUBMISSIONS
Counsel for the applicants’ submitted that in order to establish the applicants’ claim that their father was Iraqi and the Iranian citizenship documents were fraudulent, the brothers’ provided the delegate with the birth certificates of five of six siblings. The sibling whose birth certificate was missing was the applicants’ oldest sister M.
When the Authority comes to consider the Iranian foreign nationals identity card for M - which states that she is an Iraqi national and allowed to reside in Mashad until 20 March 2010, the Authority observes at [32] “while many Iranian documents have a high level of integrity, there is no information before me to indicate that this is true of foreign national’s ID card”.
After listing credibility concerns with the applicants’ evidence the Authority then finds at [32]:
[32]… I do not accept that any members of the applicant’s family were ever born in or deported to Iraq, or that they have ever been stateless or Iraqi citizens, and I find that the applicant and all of his family members are nationals of Iran and that Iran is the applicant’s receiving country for the purpose of this review.
The Authority points to credibility concerns generally, about the applicants’ evidence of nationality to support its finding that applicants’ and all their family were Iranian nationals. It was the Authority’s doubts arising from this other evidence, which based the conclusion that none of the applicants’ family were born in Iraq, and ipso facto the sister’s national identity card showing that she was a foreign national, was not genuine.
When the Authority decided that it was not satisfied that there were exceptional circumstances to enable it to consider the additional identity documents sought to be relied upon by the applicant brothers’, it did not do so on the basis that they were apparently not authentic. Rather, it has done so, on the basis that they do not “add anything” to the foreign nationals identity document which was already before the delegate.
It was submitted that this other documentation, which asserted that the sister was a foreign national, is logically material in circumstances where the Authority proposes to reject the foreign national’s identity card ID on a basis other than physical integrity. This is because, if those other documents themselves were authentic, they would corroborate the substance of the document the authenticity of which the Authority doubts and secondly, the other documents themselves are independent evidence of sister’s foreign nationality.
Although there is no obligation on the Authority to provide reasons for its procedural decisions concerning the application of s 473DC and s 473DD of the Migration Act 1958 (Cth) (“the Act”), where it does provide reasons that the Court may proceed to assess the sufficiency and cogency of those reasons, as being real reasons: (see: CVV16 v Minister for Immigration and Anor [2018] FCCA 3451 at [29]-[31]). Absent a finding that the other documents themselves are not authentic, the Authority cannot rationally find that other documents which attest to M’s foreign nationality do not “add anything” to the documentation before the Authority where it has taken the view that it is not satisfied of the veracity of the identity document before the delegate as to the nationality of M. Thus the Authority’s statement that there was existing information to which did not add anything, is not rational.
The High Court confirmed in ABT17 v Minister for Immigration and Border Protection [2020] HCA 34 at [3] and [29] that the “reasonableness condition is implied both the imposition of its duty to conduct a review and the conferral of its powers to get and consider new information in conducting a review”.
Further, the refusal of the Authority to consider the documents for the reasons it gave, was legally unreasonable. Had the Authority not acted on the improper basis that these documents did not add anything to the existing document then a different view might have been taken as to whether there were exceptional circumstances to consider them. This is particularly the case, in relation to the birth certificate, as the information before the Authority was that Iranian identity documents contain sophisticated security features and would be difficult to manufacture for fraudulent use. Had the Authority then accepted that the sister is a foreign national, it may well have led to a different conclusion of the nationality of the applicant brothers’.
Prior to the hearing commencing the Court asked both Counsel to provide any submissions they wished to, on the compliance by the Authority with the decision of the High Court in AUS17 v Minister for Immigration and Border Protection [2020] HCA 37 (“AUS17”).Counsel for the applicants’ submitted that the Authority had failed to make a finding as to whether the requirements of s 473DD(b)(ii) of the Act were met. The Authority made no finding on whether the documents presented, were credible personal information. The Authority simply concluded that the information added nothing to the information that was already before it.
THE FIRST RESPONDENT’S SUBMISSIONS
Counsel for the first respondent noted that a conclusion that a decision was illogical, amounts to a finding that the decision-maker failed to observe an implied and inviolable constraint that the decision-makers powers must be exercised reasonably: (see: Minister for Immigration and Border Protection v Gill (2019) FCR 575). Further, legal unreasonableness does not depend on a definitional formulae such as arbitrary, capricious or illogical: (see: Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 (“Stretton”) at [2] per Allsop CJ).
The test for legal unreasonableness is stringent: (see: Minister forImmigration and Border Protection v SZVFW (2018) 264 CLR 541 at [11]-[13]). Where minds might differ about the outcome or justification for an exercise of power or where the exercise is within the range of legally and factually justifiable outcomes, the exercise of power is not unreasonable: (see: Stretton at [92]). In essence, a decision will only be irrational if no reasonable decision-maker could have reached the same decision: (see: Minister for Immigration and Border Protection v SZMDS (2010) 240 CLR 611 at [135]).
In this case, the applicants’ claimed that they were stateless, being of Kurdish ethnicity and had procured their Iranian birth certificates fraudulently by the payment of bribes. This was said to be partly as a consequence of the fact that the applicants’ father was also of Kurdish ethnicity and had been born in Erbil, Iraq. Although the applicants’ made claims concerning their nationality, there does not ever appear to have been any dispute that the applicants’ feared harm, on the basis that they would be returned to Iran. Nor does there appear to have been any doubt that Iran would be the “receiving country”. The significance of the claim to be stateless was twofold: first, the applicants’ feared the truth about the fraudulent birth certificates being discovered and secondly, some of the harm they feared was said to arise from being of Kurdish ethnicity and Iraqi origin.
Before the delegate, the applicants’ supported the claim to be stateless principally by reference to what they asserted were discrepancies in their birth certificates. The delegate rejected this explanation having considered the range of other Iranian documentation in respect of the applicants’ including the National Identity Booklet, the National Identity Card and related documents. The applicants’ had originally claimed that all other siblings including the sister M, were Iranian nationals. However, they later claimed that they were stateless and in support of this claim provided the delegate and identity document for M which was stated to be an Iranian Foreign National’s ID card. Following the delegate’s rejection of the claim to be stateless, the applicants’ provided the three further documents for M, as set out in the particulars of the ground of judicial review.
At that point, the evidence already before the delegate (and by extension, before the Authority at the review), convey the information that M was an Iraqi citizen who was permitted to live in Mashad, Iran in 2010. All the evidence about M was relied on to support the conclusion that the applicants’ were in fact stateless or, put slightly differently, not Iranian nationals.
That the documents were not before the delegate is not in dispute, they were, thus ‘new information”. The Authority’s reasons has three strands. First, the Authority noted the presence of existing information about M that was already before the delegate. Secondly, the applicants’ had failed to provide this information to the delegate, despite providing the birth certificates of all of the other siblings. There was no explanation for this omission. Thirdly, bearing in mind the presence of information that M was an Iraqi national who resided in Mashad, and in the absence of any explanation as to the significance of the new information, it followed that the new information did not add anything to the existing information.
The gravamen of the alleged irrationality is said to be the finding that the Authority “did not accept that the foreign national’s ID card for M was ‘genuine’ at paragraph 18 of its decision. This involves a misreading of the Authority’s reasons.
The Authority’s conclusion that the applicants and their family were all Iranians nationals, was the culmination of the chain of reasoning extending from paragraphs 19 to 31 of its decision. As part of the reasoning, the Authority did not accept that M was described as a “foreign resident” on the mother’s Iranian Citizenship Card. At paragraph 32 of its decision, the Authority did not make any finding about whether the foreign nationals ID card was genuine. It made a more modest finding that it had no information about documents of this type. The document dealt with foreign residents, not Iranian nationals (unlike the other types of identity documents considered by the delegate).
Critically, given this, the Authority went on to conclude that the document, whatever its true evidentiary status, could not dispel the way to the adverse credibility findings (which were extensive) about the applicants’ evidence in relation to nearly every aspect of the applicants’ claims concerning their nationality and ethnicity.
The foundation for the alleged illogicality, was the making of a finding about the authenticity. The Authority did not make such a finding. The Authority’s finding about the documents at paragraph 10 of its decision, was a finding about the nature of the information not the status of the documents which contain that information. It was this that gave content to the idea that the additional documentation qua information added nothing. Relevantly, the applicants’ themselves, failed to put forward an explanation as to why these additional documents were being put forward in those circumstances, despite being provided with a copy of the Practice Direction which at paragraph 24, states that an explanation should be provided for why any new information should be considered.
The flaw in the applicants’ approach, is made clear when one realises that the applicants’ argument rests on the Authority being taken to have understood that it was going to make the finding did at paragraph 32 of its decision, when it considered the matters at paragraph 10 of its decision. There was no warrant for this reading.
There is no relevant illogicality other in rejecting documents that essentially convey the same information at a point conceptually prior to the full consideration of the merits.
It cannot be said that the Authority’s approach lies outside the range of rational responses that were available, in considering the additional documents.
In any event, even if it were to be accepted that the Authority made the error alleged (which is denied), the error is not material and therefore not jurisdictional. An error is only jurisdictional if it could be said that compliance could realistically have made a difference: (see: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 at [46]). Had the documents been admitted, the methodology would simply have been as before, further documents relating to the same point, that M was considered by the Iranian authorities as an Iraqi citizen and a foreign resident.
The range of adverse credibility findings made about each of the applicants’ in respect of claims concerning their own nationality (not that of M), was such that there is no realistic prospect that the weight of those conclusions could have been overcome simply by the additional material which might have suggested that M was treated as an Iraqi citizen. The wholesale rejection of the applicants’ claims for such that this necessarily foreclosed on the alternative conclusion based on the possibility of a different finding in respect of M. The provision of the three documents could not realistically have made a difference to the conclusion about the applicants’ nationality.
CONSIDERATION
Reviews conducted under Part 7AA of the Act are subject to considerable restrictions on how they are to be conducted. The Secretary provides the Authority with relevant material, including relevant documents and the delegate’s decision; (see: s 473CB of the Act).
The Authority is directed to review the decision, without accepting or requesting new information (s 473DB(1)(a) of the Act), and without interviewing the referred applicant
(s 473DC(1)(b) of the Act). The Authority may obtain new information that it considers relevant (s 473DC(1) of the Act), but does not have a duty to get, request or receive any new information whether requested to do so by the applicant or any other person (s 473DC(2) of the Act).
Section 473DD of the Act provides as follows:
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
a. the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
b. the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
i.was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
ii.is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.
It is convenient to first consider the issue of whether the Authority complied with is obligations under s 473DD as set out in AUS17 prior to considering the other grounds. In AUS17 the following was said at [11]-[12] (less citations).
[11] Logic and policy therefore demand that the Authority assess such new information as it might obtain from the referred applicant first against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and only then against the criterion specified in s 473DD(a). If neither of the criteria specified in s 473DD(b)(i) and s 473DD(b)(ii) is met, the Authority is prohibited from taking the new information into account in making its decision on the review. Further assessment of the new information against the criterion specified in s 473DD(a) is redundant. If either the criterion specified in s 473DD(b)(i) or the criterion specified in s 473DD(b)(ii) is met, that is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a). If both the criterion specified in s 473DD(b)(i) and the criterion specified in s 473DD(b)(ii) are met, that too is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a) and which must heighten the prospect of that criterion being met.
[12] The result, as has been recognised by the Federal Court in numerous other cases, is that the Authority does not perform the procedural duty imposed on it by s 473DD in its conduct of a review if it determines in the purported application of the criterion in s 473DD(a) that exceptional circumstances justifying consideration of new information obtained from the referred applicant do not exist without first assessing that information against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and then taking the outcome of that assessment into account in its assessment against the criterion specified in s 473DD(a). The nature of the non-performance of the procedural duty in such a case is not inaccurately characterised as a failure to take account of a mandatory relevant consideration in the purported application of the criterion in s 473DD(a).
Firstly there should be no criticism of the Authority in the way that it went about its task in this matter, as the decision was delivered before AUS17 was handed down. That being said, the task of this Court is to review the decision in the light of ASU17 as set out above. Clear language that the Authority has gone about its task is not necessary, if the Court can reasonably ascertain that the task has been carried out in the prescribed manner. In APH17 v Minister for Immigration, Citizenship, Migrant services and Multicultural Affairs[2021] FCA 23 at [79] the following was said:
[79] As the Minister submits, notwithstanding the plurality’s statement that “logic and policy” demand that the Authority assess new information obtained from a referred applicant first against the criteria in both s 473DD(b)(i) and (ii) and only then against the criterion in s 473DD(a), it is unnecessary for the Authority to engage in any particular formulaic consideration of s 473DD(b). It will be sufficient if, in a particular case, the Court on judicial review is able to infer from the Authority’s reasons that the requisite assessment has occurred. The question is whether the substance of the criteria prescribed by s 473DD(b) has been considered prior to a consideration as to whether “exceptional circumstances” exist for the purposes of s 473DD(a).
In undertaking its task, the Authority at paragraph 10 of its decision record firstly determined that the new documents relating to M were ‘new information’. The Authority found that no explanation was provided as to why the information had not been provided earlier and it added nothing to the information that was already before it, as to M being an Iraqi national. The Authority then simply goes on to find that there are no exceptional circumstances to justify the consideration of the new information. The Court accepts that the information was personal credible information. It was not previously known to the First Respondent, in that it supported the claim that the applicants’ were not Iranian citizens. This was a central claim that was rejected by the Authority, in that it found that the siblings were all Iranian citizens, including M. There is no real reference to the relevant wording of s 473DD (b) (i) or (ii) of the Act. The best that can be found as to the wording of s 473DD (b) (i) of the Act, are the words that no explanation has been given, as to why the documents were not provided earlier. This may be capable of being inferred as a reference to s 473DD (b) (i) of the Act.
That said, the Court is unable to infer from the language used, that the Authority effectively engaged with the criterion under s 473DD (b) (ii) of the Act. The wording simply states that the documents sought to be considered, add nothing to what was already before the Authority. There is no consideration as to whether the documents were personal credible information. Had the Authority determined that they were not personal credible information, the Authority would have then been able to properly reject the information. The Authority made no finding on this issue and the wording is simply not capable of inferring any consideration on this issue.
Given the critical nature of this information to the applicants’ case, coupled with the earlier comment by the Authority that Iranian documents had sophisticated internal integrity measures, it is difficult to see how it may not have affected the consideration of the applicants’ claims. The Court does not accept the central finding of the Authority that the additional documents, if they were genuine, did not add anything to the information that was currently before it. If M was not an Iranian citizen, then this supported the applicants’ claims that they were also not Iranian citizens.
Accordingly, the Court is not satisfied that the Authority carried out its task of considering the new information in accordance with AUS17. It is apparent that the substance of
s 473DD(b)(ii) of the Act, was not considered fully prior to the finding that exceptional circumstances did not exist to allow the consideration of the new information.
Having found error, the next task for the Court to consider is whether the information was material, that is, could it have made a difference to the outcome. The issue of the nationality of the applicants’ was a critical issue. The applicants’ said that they were not Iranian citizens and that the documents they provided that supported this, were fraudulently obtained. The fact that there existed documentation that M was not an Iranian citizen, added weight to these claims. The Authority found that all the siblings, including M, were Iranian citizens. If the new information had been considered and found to be genuine, this would have been significant support to the applicant’s claims. The Court considers that this could not have made a difference. The rejection of the information was material to the outcome. This failure to consider the new information amounts to jurisdictional error.
CONCLUSION
Accordingly, the application is upheld and the Court grants the relief set out in the Initiation Application filed with the Court.
I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Associate:
Dated: 5 May 2021
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