Arm18 v Minister for Home Affairs

[2018] FCCA 3326

FEDERAL CIRCUIT COURT OF AUSTRALIA

ARM18 v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 3326

Catchwords:
MIGRATION – Application for remedy under s.476 of the Migration Act 1958 (Cth) (Act) in relation to decision made by Immigration Assessment Authority (Authority) affirming decision of a delegate not to grant Safe Haven Enterprise visa – whether Authority relied on information that was not “review material” within the meaning of s.473CB(1) of the Act or “new information” within the meaning of s.473DC(1) of the Act and, for that reason, relied on information on which it was not open to it to rely – whether Authority’s relying on such information was material to its decision – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.5H(1), 36(2), 473BB, 473CA, 473CB, 473CC(1), 473DB(1), 473DC(1), 473DD(1), 476, 496(2)

Cases cited:

Hossain v Minister for Immigration and Border Protection [2018] HCA 34
Plaintiff M61/2010E v The Commonwealth (Offshore Processing Case) [2010] HCA 41
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2

Applicant: ARM18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 87 of 2018

Judgment of: Judge Manousaridis

Hearing date: 31 October 2018

Date of Last Submission: 31 October 2018

Delivered at: Sydney

Delivered on: 16 November 2018

REPRESENTATION

Counsel for the Applicant: Mr A Edwards

Solicitors for the Applicant: Gilbert + Tobin

Counsel for the Respondent: Ms R Graycar

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 87 of 2018

ARM18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Corrected)

Introduction

1. This application for a remedy under s.476 of the Migration Act 1958 (Cth) (Act) raises two principal questions. The first is whether the second respondent (Authority), when reviewing the decision of a delegate of the first respondent (Minister) not to grant the applicant a Safe Haven Enterprise (subclass 790) visa (SHEV), considered information that it could not lawfully consider. The second question is, assuming the Authority did consider such information, whether the Authority made a jurisdictional error.

Background

1. The applicant is a citizen of Iran. He arrived in Australia on 8 September 2012 as an unlawful maritime arrival. He participated in an “age determination interview” on 11 September 2012 (ADI),[1] and in an “Irregular Maritime Arrival Entry Interview” on 18 November 2012 (Arrival Interview).

   [1] CB2, item 1

2. On 23 August 2013 the applicant, through his solicitors, lodged with the Department of Home Affairs (which was then known as the Department of Immigration and Border Protection) (Department) an application for a subclass 866 Permanent Protection visa (PV application).[2] The applicant’s claims for protection contained a statutory declaration made on 17 August 2013 (2013 Statement).[3]

   [2] CB16

   [3] CB48-51

3. By letter dated 30 November 2015 the Department informed the applicant that the PV application is invalid and could not be processed any further.[4] The letter stated that if the applicant would like a copy of the PV application, the applicant could request a copy by email. After informing the applicant “of the new laws about the protection application process for certain illegal maritime arrivals”, the letter invited the applicant to apply either for a Temporary Protection (subclass 785) visa or a SHEV. On 23 June 2017 the applicant lodged an application for a SHEV.[5]

   [4] CB92

   [5] CB120

Claims for protection made in SHEV

1. The applicant stated his claims for protection in a statement that formed part of the SHEV application (2017 Statement) as follows:

   a)The applicant’s problems in Iran began in 2009 when the applicant and his brother became involved in the “Green Movement” (GM) during the 2009 presidential elections. The GM was demanding the removal of the president, Mr Mahmoud Ahmadinejad. Although the applicant does not know the role his brother, M, played in the GM, the applicant says M attended almost all of the rallies, and he encouraged the applicant and the rest of their family to vote for GM’s preferred candidate, Mousavi. The applicant himself participated in two or three rallies organised by the GM, and he distributed flyers for the GM in Tehran.

   b)M’s involvement in the GM attracted the attention of the authorities. Although the applicant does not know the problems M faced, they became so serious that M had to flee Iran. That occurred in about late 2010 or early 2011.

   c)Even after M fled Iran, members of the Ettela’at continued to pursue him, and they would visit the applicant’s family home looking for him. The applicant’s family would say they did not know where M was.

   d)The Ettela’at also became interested in the applicant. On two or possibly three occasions after M fled Iran, the applicant was taken blindfolded to an undisclosed location where he was beaten and interrogated. On both occasions the applicant was detained for about two to three days. He was asked about his involvement with the GM. The applicant said he was not involved but the Ettela’at said they had a video of him attending a protest. The applicant was also interrogated about the whereabouts of M.

   e)After these interrogations, the applicant started his military service. He had previously applied for an exemption from military service, but that was refused. The applicant said that in the 2013 Statement he stated he decided that completing his military service was the only way he could get out of Iran. What the applicant meant to convey was that he applied for an exemption so that he could leave the country but, because it was not granted, he had to complete his military service right away. “I prepared my previous application quite quickly with the assistance of a lawyer, so I believe there may have been a minor misunderstanding in this respect”.[6]

   f)After the applicant started his military service, the authorities again came to the applicant’s family home and asked about M. The authorities said the applicant’s family could not hide him forever, otherwise problems “would be caused for” the applicant’s family.[7] After this, and because of everything else the applicant and his family had experienced, the applicant and his parents decided it was too unsafe for the applicant to remain in Iran.

   g)In about June 2012 the applicant obtained a “fake passport” he could use to flee Iran.[8] The applicant could not obtain a legal passport or any other travel document because he had not completed his military service. The applicant took two days’ leave from the military, but he did not return. Instead, he got on a plane two weeks later.

   h)After the applicant’s leave had expired, and about two days before he left Iran, the police came to the applicant’s home looking for him.

   i)If the applicant were to return to Iran, he would be obliged to complete the remaining 21 months of his compulsory military service. He would also be required to complete additional service because he was absent without having been granted leave as well as face imprisonment for desertion.

   j)After the applicant arrived in Australia, the applicant’s parents informed him the authorities had come to the family’s home asking about the applicant and his whereabouts. The authorities told the applicant’s parents they would not have a relaxed life if M could not be found. The authorities also visited the applicant’s older brother, H, and asked him where M and the applicant were. The applicant’s sister-in-law informed the applicant the authorities sent a letter to H stating that M and the applicant should report to the authorities.

   k)While the applicant was in immigration detention, the applicant obtained a certificate certifying his conversion to Christianity. The applicant decided to convert after an incident that had occurred in the months before he went to prison. The applicant was then a drug user. He had drugs at his home. On a particular day the applicant’s friend asked the applicant to go to his friend’s home to study the Bible. The applicant decided to take the drugs with him. The police raided his home but found no drugs. The applicant considered that studying the Bible had saved the applicant from being arrested on that occasion. The applicant’s parents are not happy about the applicant’s conversion to Christianity.

   l)The applicant fears that if he were to return to Iran he would be detained and asked questions about M; he would be imputed with an anti-government political opinion based on his participation in the GM; because of his desertion from the army, the authorities will assume the applicant discussed information about Iran; and the authorities will have an issue with the applicant’s having converted to Christianity.

   [6] CB213, [23]

   [7] CB213, [24]

   [8] CB213, [25]

Delegate’s decision

1. The delegate:

   a)accepted the applicant attended two GM protests in late 2008 and 2009 and distributed GM pamphlets;

   b)accepted that on two occasions in 2011 the Ettela’at detained the applicant, as the applicant claimed; that the applicant undertook military service in Iran from March to June 2012; and that he took two days leave;

   c)found the Ettela’at took no action against the applicant while serving, and it did not search for the applicant between the commencement of his two-days leave and the day he departed Iran;

   d)accepted the applicant left Iran on a false passport that contained a photograph of the applicant; but, given the applicant claimed the Ettela’at had video footage of the applicant’s participating in protest, the applicant’s having no trouble leaving Iran indicated the applicant was of no interest to the Ettela’at;

   e)did not accept the Ettela’at searched for the applicant after he left Iran or has been a person of interest; and

   f)accepted the applicant is a Christian, but did not accept the incident the applicant claimed led to his converting to Christianity occurred.

Referral to the Authority

1. It is common ground that the delegate’s decision was a “fast track reviewable decision” within the meaning of s.473BB of the Act. That means that under s.473CA of the Act the Minister was required to refer the delegate’s decision to the Authority as soon as reasonably practicable after the decision was made. Further, under s.473CB(1) of the Act the Secretary of the Department was required to provide to the Authority the “review material”, being the material identified in that subsection, namely:

   (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. On 6 November 2017 an officer of the Department referred the delegate’s decision to the Authority.[9] With that decision the Authority was provided with the material identified in a schedule.

   [9] CB294-297

3. By email sent on 6 December 2017 to “Vic TPVA Review”, the Authority stated the following (emphasis in original):[10]

   [10] CB300

   We have received a file referral from you in relation to the above applicant. The documents listed below appear to be missing or incomplete.

   ·    The review material provided by the secretary to the IAA in respect of the referred applicant includes an undated Statement by [the applicant]. Paragraph 23 of that statement refers to the referred applicant’s ‘previous Statement of Claims that I submitted to the Department of Immigration, dated 17 August 2013’. No such document appears in the review material provided under section 473CB of the Act. If that document is in your possession and if it was your intention to give that document to the IAA, please let us know when you can give that document.

   Thank you

   Could you please review the Department file, and arrange to resend the documents within 2 working days of receiving this request. When actioning this request, please:

   ·    Upload the documents to STS using the naming convention above when saving the document; and

   ·    Notify us of the completion of the upload.

4. On 7 December 2017 an officer from the Department (“Vic TPVA Review”) sent an email to the Authority stating the following:[11]

   [11] CB301

   In response to the post referral request –

   The Case officer did not find it necessary to include the applicant’s 17 August 2013 statement of protection claims in the IAA referral checklist because in paragraph 23 of the client’s most recent undated statement Client has clarified what he meant by information in the 17 August 2013 statement.

   It was also found that there was reasonable consistency between the statements, with the most recent undated statement containing more information.

   Therefore, specific reference to or consideration of the 17 August 2013 statement was not considered necessary.

5. The Department provided the 2013 statement to the Authority by notifying the Authority that it had been “uploaded on STS today”. It appears that the Department uploaded the entire PV application.[12]

   [12] CB331

Authority’s reasons

1. The Authority found it could not be satisfied of the truth of any of the claims the applicant made regarding his military service.[13] In particular, the Authority was not satisfied the applicant applied for or was denied an exemption from military service, or that he absconded from military services or (as he claimed before the delegate) the applicant was the driver for a Colonel.[14] Nor was the Authority satisfied “as to what the applicant’s situation regarding compulsory military service in Iran is, including whether he has completed military service, has not completed military services, has not completed military service, or whether he is required to undertake military service in the reasonable foreseeable future”.[15] The Authority relied on a number of matters, including the following:

   a)The applicant gave changing evidence about his age.[16] The ADI was conducted because the applicant had claimed he was under the age of 18. At the ADI the applicant maintained he was seventeen years of age, and that he was born in January 1996, which made him 16 years of age at the time of the interview. When it was put to the applicant that M, who had also been processed in Australia, gave consistent evidence over five years that the applicant was born in 1990, the applicant said M lied about the applicant’s age. The applicant subsequently submitted a birth certificate that showed he was born in 1991.[17]

   b)The applicant’s claim to have undertaken military service in Iran, and to have absconded, appeared for the first time in the 2013 statement.[18] During the Arrival Interview, the applicant was asked to tell the reviewing officer in detail why he left Iran. While the applicant referred to being interrogated by the Ettela’at on two occasions, he did not refer to being called for or absconding from military service.[19] Also during the Arrival Interview, the applicant said it was correct that because he was not yet 18 years of age he had not had any military service.[20] Finally, when asked in the Arrival Interview about what he thinks may happen if he returns to Iran, the applicant said he would be put in prison because he left illegally, and he is due for military service. He said his family had not received any correspondence indicating he is due to do military service.[21]

   c)The Authority found that in the 2017 statement the applicant “attempted to distance himself from the evidence he gave during his Arrival interview that he had not yet undertaken military service”.[22] The Authority there referred to the applicant’s stating in the 2017 statement that during the Arrival Interview the applicant understood he was asked about whether he was involved in “any foreign military”, and he answered that question in the negative because he understood it to mean any foreign military external to Iran. The Authority, however, listened to the audio recording of the Arrival Interview, and did not accept the applicant could reasonably have understood the questions that were asked at that interview about military services to have been referring to service outside Iran.[23]

   d)In his 2017 statement the applicant attempted to correct his 2013 statement by stating that what he intended to say in the 2013 statement was that he had applied for exemption from military service to leave Iran, but the exemption was not given so he had to complete his military service immediately.[24]

   e)During his interview before the delegate the applicant was unclear whether he completed two or three months of military service; he was uncertain about how much military service is required. Also during the interview the applicant said he completed only two to three months in the army because he was suffering due to M’s political profile; yet the applicant also said he did not experience any adverse problems or adverse approaches from the Ettela’at while he was undertaking military service.[25]

   [13] CB342, [33]

   [14] CB342, [33]

   [15] CB342, [33]

   [16] CB339, [21]

   [17] CB339, [21]

   [18] CB340, [26]

   [19] CB340, [24]

   [20] CB340, [25]

   [21] CB340, [25]

   [22] CB340, [27]

   [23] CB341, [27]

   [24] CB341, [28]

   [25] CB341, [30]

2. The Authority did not accept the applicant was ever personally involved with the GM. In particular, the Authority did not accept the applicant distributed GM pamphlets, or that he was photographed, filmed, or otherwise perceived to have been involved, or that the applicant was abducted, detained, interrogated, tortured, or harmed by Ettela’at or any other agency of the Iranian state in connection with the applicant’s claimed involvement with the GM.[26] The Authority relied on matters that included the following:

   a)At the ADI, when asked to explain why he wanted to leave Iran, the applicant said he had a problem, he did not have much freedom, he was the only son in the house who could work, he became the centre of a problem, and his brother, M, who was already in Australia, suggested the applicant should come to Australia. The applicant did not mention any involvement in the GM or his having any political profile in Iran.[27]

   b)At the Arrival Interview the applicant gave inconsistent evidence about whether he protested with his brother M;[28] and, despite claiming at the Arrival Interview that he had been interrogated by the Ettela’at in connection with M’s involvement with the GM, when asked what he fears may happen to him if he returns to Iran, the applicant did not mention any fear in connection with any political profile.[29]

   c)Before the delegate, the applicant gave a very general description of the protests in which he claimed to have participated, which the Authority considered could be given by anyone who has seen footage of the GM demonstrations.[30]

   d)In response to questions by the delegate about how the applicant and M could be identified in video footage of the demonstrations in which the applicant claims he and his brother participated, the applicant said his uncle in the Ettela’at was responsible for identifying the applicant and M. The applicant said this after his representative offered that in his statement the applicant said he had an uncle in the Ettela’at who may have had something to do with that. The applicant also said, however, that the same uncle helped the applicant and M escape Iran because they were no longer safe in Iran.[31]

   e)Although he claimed he was detained and tortured on two occasions, and that he continued to be of adverse interest to the Iranian authorities, the applicant says he applied for exemption from military service. That did not suggest to the Authority the applicant was evading detection by the Iranian authorities, or that he was fearful of them.[32]

   f)Before the delegate the applicant said his brother H has not had any problems with the authorities. The Authority agreed with the delegate that if Ettela’at were serious about finding the applicant or M, it was difficult to understand why they did not approach or interrogate H; and that the absence of any demonstrated interest by the Iranian authorities in H may reflect that the authorities do not have any adverse interest in the applicant or in M.[33]

   [26] CB345-346, [47]

   [27] CB343, [36]

   [28] CB343, [38]

   [29] CB343, [39]

   [30] CB344, [42]

   [31] CB345, [43]

   [32] CB345, [44]

   [33] CB345, [45]

1. The Authority did not accept the applicant’s claims that he had left Iran illegally on a false passport. The only evidence in support of that claim was the applicant’s own testimony. Although the Authority accepted the applicant had consistently claimed he had illegally left Iran on a false passport, that claim was tied to the applicant’s claims regarding military service, the truth of which the Authority was not satisfied; and the applicant did not provide a copy of the fraudulent passport he claims to have used to leave Iran.[34]

   [34] CB346-347, [52]

2. The Authority accepted the applicant participated in Christian activities in Australia, including attending some churches, some Christian gatherings, and reading or learning parts of the Bible.[35] The Authority noted, however, the applicant provided no supporting evidence from his Facebook account, or any certificate evidencing his conversion to Christianity;[36] and the Authority was not satisfied that the applicant’s participation in Christian activities, “in the context of all the evidence and concerns identified in this decision”, was motivated by anything other than the purpose of strengthening his claims for protection. The Authority found that the applicant’s Christian activities in Australia was conduct engaged in for the sole purpose of strengthening his claims to be a refugee, and for that reason the Authority disregarded the conduct when assessing whether the applicant has a well-founded fear of persecution.[37]

   [35] CB349, [64]

   [36] CB347, [54]

   [37] CB349, [65]

3. Finally, the Authority accepted the applicant departed Iran in around July 2012, and that, while he may not be known generally among the Iranian authorities to have sought asylum in a western country, he will be suspected by the Iranian authorities to have done so. For that reason, on his return to Iran, the Iranian authorities will view the applicant as a failed asylum seeker who sought asylum in a non-Muslim country.[38] The Authority referred to country information that showed that returnees will generally only be questioned if they had done something to attract the specific attention of the authorities, and that although there were reports that identify cases in which failed asylum seekers have been arrested on their return to Iran, those cases involve individual with pre-existing profiles in Iran or abroad. The Authority found the reports do not suggest that a person in the applicant’s circumstances, who had no adverse profile when he left Iran, and with no evidence of participation in any anti-regime activities while outside Iran, would be harmed in any way for having sought asylum in Australia.

   [38] CB349, [67]

4. On the basis of these findings, the Authority concluded the applicant does not meet the requirements of the definition of “refugee” in s.5H(1) of the Act and that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk the applicant will suffer significant harm.

Ground of application

1. The applicant relies on the one ground set out in the further amended application (emphasis in original):

   The Second Respondent acted beyond the scope of the power conferred on it under s 473DB(1) of the Migration Act 1958 (Cth) (Act) in considering the Applicant’s statutory declaration of 17 August 2013 (2013 Statement) because:

   (a)it failed to confine itself to consideration of the review material provided under s473CB(1) of the Act as required by s 473DB(1); and

   (b)did not turn its mind to the test imposed by s 473DD(a) before considering “new information”, as defined in s473DC of the Act or comply with the requirements of s 473DE in respect of it; or

   (c)alternatively to 1(b), the 2013 Statement was neither review material nor new information.

   Particulars

   (d)On 6 November 2017, the delegate of the Minister of Immigration and Border Protection’s [sic] refused the Applicant a Safe haven Enterprise Visa (SHEV).

   (e)On 9 November 2017, the Secretary of the Department of Immigration and Border Protection (Secretary) referred the decision of the delegate to the Second respondent for review and provided the Second Respondent with “review material” within the meaning of s 473CB(1) of the Act. The 2013 Statement was not included with the review material.

   (f)It may be reasonabl inferred that the 2013 Statement was not before the delegate when he made his decision because:

   (i)the 2013 Statement was submitted in connection with the Protection visa application lodged by the Applicant on 22 August 2013;

   (ii)the Department wrote to the Applicant on 30 November 2015 to advise that the Applicant’s Protection visa application was invalid;

   (iii)the Applicant did not submit the 2013 Statement in connection with his SHEV application;

   (iv)the delegate’s decision states that “The applicant’s claims for protection, including those provided at interview, and supporting evidence are contained in department file . . .”;

   (v)the delegate’s decision makes no direct or indirect reference to the existence of or content of the 2013 Statement; and

   (vi)the 2013 Statement was not included with the review material on 9 November 2017.

   (g)The Secretary did not consider that the 2013 Statement was relevant to the Second Respondent’s review at the time the decision was referred:

   (i)On 6 December 2017, the Second Respondent requested the secretary provide it with the 2013 Statement.

   (ii)By email on 7 December 2017 the Secretary declined to provide the Second Respondent with the 2013 Statement and stated that it had concluded that it was not relevant to the Second respondent’s review.

   (iii)On 12 December 2017, the Second Respondent again requested that the secretary provide it with the 2013 Statement.

   (iv)On 12 December 2017, the Secretary provided the Second respondent the 2013 Statement.

   (h)By reason of particulars (a) to (d) above, the 2013 Statement was not review material for the purposes of s 473DB(1).

   (i)By reason of particular (e) above, the 2013 Statement was new information within the meaning of s 473DC.

   (j)In the course of determining its jurisdiction, the Second Respondent erroneously concluded that the 2013 Statement was not new information [5]-[6] despite the matters at particulars (a) to (d).

   (k)In affirming the delegate’s decision not to grant the Applicant a SHEV, the Second Respondent considered and took into account in reaching its decision the 2013 Statement.

   (l)The Second Respondent did not turn its mind to whether there were exceptional circumstances to justify considering the 2013 Statement as new information as required by s 473DD(a) or comply with the requirements of s 473DE in respect of it.

   (m)In the alternative to particulars (i) to (l) above, the 2013 Statement was neither review material nor new information (by reason of having been before the Minister when the Minister made the decision under s 65 of the Act [sic]).

Parties’ submissions

1. The elements of this ground, as developed by counsel for the applicant in his written and oral submissions, are as follows:

   a)Part 7AA of the Act identifies the information the Authority can consider, and can only consider, when reviewing a decision referred to it under s.473CA of the Act.

   b)The only information the Authority can consider falls into two categories. The first is the information contained in the “review material” referred to it under s.473CB(1) of the Act. The second is “new information” as that expression is defined in s.473DC(1) of the Act. It is documents or information that “were not before the Minister when the Minister made the decision under section 65”, and “the Authority considers may be relevant”.

   c)Under s.473DB(1) of the Act the Authority is obliged to consider the review material provided to it under s.473CB(1). The Authority, however, has no unqualified power to consider “new information”. Its power to consider such information is qualified by the requirements provided for by s.473DD(1) of the Act; and these are, first, the Authority must be satisfied “there are exceptional circumstances to justify considering the new information”, and, second, the Authority is satisfied either the “new information” “was not, and could not have been, provided to the Minister before the Minister made the decision under section 65” or “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”.

   d)The 2013 Statement is not information that was before the delegate when the delegate made the decision not to grant the applicant a SHEV. In those circumstances the 2013 Statement was “new information”, and the only way in which the Authority could have considered the 2013 Statement is if the Authority was satisfied of the matters s.473DD(1) of the Act requires the Authority to be satisfied before it can consider “new information”. The Authority, however, did not consider whether it was satisfied that any of the matters specified in s.473DD(1) applied to the 2013 Statement.

   e)If, contrary to (d), the 2013 Statement was before the delegate when the delegate made the decision not to grant the applicant a SHEV, it did not fall within any of the categories of “review material” described in s.473CB(1) of the Act. The 2013 Statement is not a “statement” as described in s.473CB(1)(a); it is not “material provided” by the applicant to the delegate “making the decision before the decision was made”; and it is not a document that contains the details specified in s.473CB(4). Nor is the 2013 Statement “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”. That is so because there is evidence, being the email the Department sent to the Authority on 7 December 2017, to the effect that the “case worker” considered the 2013 Statement not to be relevant to the review, and although the 2013 Statement was later given to the Authority, it was not given because the Secretary or a delegate of the Secretary considered it to be relevant to the review of the delegate’s decision; it was provided to the Authority because the Authority considered it to be relevant to the review.

   f)The Authority relied on the 2013 Statement; and the consequence of its doing so is that the Authority’s decision was made in excess of jurisdiction. First, the condition that the Authority consider only the information referred to in s.473CB(1) or s.473DC (subject to s.473DD) is a condition, strict compliance with which is necessary to the Authority’s making a valid decision. Second, the Authority’s reliance on the 2013 Statement was material to the Authority’s decision such that it cannot be said that had the Authority not considered the 2013 Statement the Authority could not have come to a different decision than the one it made.

2. The Minister submits as follows:

   a)The 2013 Statement was before the delegate and, for that reason, it is not “new information”. That means the Authority was not required to satisfy itself of the matters referred to in s.473DD of the Act before it could consider the 2013 Statement.

   b)The 2013 Statement was information the Secretary considered to be relevant to the review and, therefore, was “review material” within the meaning of s.473CB(1) of the Act.

   c)In any event, even if the 2013 Statement was not information the Authority had power to consider, its having considered it was not material to the decision it made.

3. I do not understand the Minister to submit that the Authority has power to consider information other than review material provided to it under s.473CB(1) or “new information” as defined in s.473DC(1). In those circumstances, three questions arise:

   a)Was the 2013 Statement information before the delegate when the delegate made the decision not to grant the applicant a SHEV?

   b)If (a) is answered in the affirmative, was the 2013 Statement information the Secretary considered to be relevant?

   c)Assuming (b) is answered in the negative, did the Authority make a jurisdictional error by relying on the 2013 Statement?

Was the 2013 Statement before the delegate?

1. In his counsel’s written submissions, the applicant relies on a number of matters for submitting the 2013 Statement was not before the delegate when he made the decision: the 2013 Statement was not submitted in support of the application for a SHEV but in support of the PV application in 2013 which was considered to be invalid; the delegate in his decision stated that the applicant’s claims for protection are contained in a particular Departmental file which, presumably, is the file the Department maintained in connection with the applicant’s application for a SHEV; the delegate’s decision does not refer, directly or indirectly, to the existence or contents of the 2013 Statement; and the 2013 Statement was not included in the material that was provided to the Authority.[39] The applicant also submits that the Department’s email of 7 December 2017 to which I refer “did not provide an evidentiary basis for a conclusion that the material was before the Delegate at the time he made a decision under s 65 in relation to the Applicant, as opposed to the time of making a decision as to what material ought to be provided to the IAA pursuant to s 473CB(1)(c)”.[40]

   [39] Applicant’s Outline Submissions, [34]

   [40] Applicant’s Outline Submissions, [35]

2. I do not accept the applicant’s submissions. First, in paragraph 23 of the 2017 Statement the applicant refers to his “previous Statement of Claims that I submitted to the Department of Immigration, dated 17 August 2013”, states what he said in a particular part of the 2013 Statement, and then explains what he meant to say in that part of the 2013 Statement. For that reason, I consider it probable that the delegate would have obtained the 2013 Statement and assessed what the applicant said in paragraph 23 of the 2017 Statement by reference to the 2013 Statement. Second, the email of 7 December 2017 does provide an evidentiary basis for inferring the 2013 Statement was before the delegate. The email explains why the 2013 Statement was not provided to the Authority, and the explanation refers to the “Case officer” (by which it is reasonable to infer, and I find, the sender of the email intended to refer to the delegate) finding there was “reasonable consistency between the statements, with the most recent undated statement containing more information”. That indicates the delegate considered both the 2013 Statement and the 2017 Statement.

3. I find that the 2013 Statement was before the delegate when he made the decision and, therefore, was not “new information”.

Was the 2013 Statement material the Secretary considered to be relevant?

1. The 2013 Statement was not provided to the Authority at the time all other material was provided to it on 9 November 2017, but was provided after the Authority requested that it be provided to it. Two questions arise:

   a)Having referred material to the Authority on 9 November 2017, did the Secretary have power to provide after 9 November 2017 additional information that was “review material” as defined in s.473CB(1)?

   b)Assuming (a) is answered in the affirmative, was the 2013 Statement provided to the Authority after the Secretary or a delegate of the Secretary considered the 2013 Statement to be relevant to the review?

2. In my opinion, the first question is to be answered in the affirmative. Subsection 473CB(1) of the Act obliges the Secretary to provide to the Authority the “review material”. Subsection 473CB(2) provides that “the Secretary must give the review material to the . . . Authority at the same time as, or as soon as reasonable practicable after, the decision is referred to the Authority”. The use of “the” before “review material” suggests that the Secretary has power to provide such material in the one action of giving. That, however, would be an unrealistic construction. It would mean that relevant material which was intended to be given but which through some error was not given could not be given to the Authority; and a particular item of information that is “review material” which has been overlooked when other relevant material has been given to the Secretary cannot be given to the Authority after the oversight has been discovered. That impractical construction may be overcome by construing “or” in s.473CB(2) of the Act to mean “either or both”, so that the Secretary must give review material either at the same time the decision is referred to the Authority or as soon as practicable after the decision is referred, or both when the decision is referred and as soon as reasonably practicable after the decision is referred.

3. As for the second question, the only evidence relevant to determining whether the Secretary considered the 2013 Statement to be relevant to the Authority’s review of the delegate’s decision are the emails to which I referred earlier in these reasons. It is not apparent from those emails they were sent or received by the Secretary or by a delegate of the Secretary.[41] Whether or not, however, the emails were received and sent by a delegate of the Secretary does not matter, because none of the emails suggest that the person who decided to provide the 2013 Statement to the Authority considered whether the 2013 Statement was relevant to the Authority’s review. I find on the basis of the emails that the 2013 Statement was given to the Authority because the Authority requested it and considered it to be relevant; it was not given to the Authority because the Secretary or a delegate of the Secretary considered the 2013 Statement to be relevant to the review.

   [41] As for delegation by the Secretary, see s.496(2) of the Act.

4. I conclude, therefore, that the 2013 Statement is not “review material” within the meaning of s.473CB of the Act.

Consequences of relying on 2013 Statement

1. This Court’s jurisdiction under s.476 of the Act in relation to the Authority’s decision is limited to considering whether the Authority made a jurisdictional error.[42] Here:[43]

   Jurisdictional error, in the most generic sense in which it has come to be used to describe an error in a statutory decision-making process, correspondingly refers to a failure to comply with one or more statutory preconditions or conditions to an extent which results in a decision which has been made in fact lacking characteristics necessary for it to be given force and effect by the statute pursuant to which the decision-maker purported to make it.  To describe a decision as “involving jurisdictional error” is to describe that decision as having been made outside jurisdiction.  A decision made outside jurisdiction is not necessarily to be regarded as a “nullity”, in that it remains a decision in fact which may yet have some status in law.  But a decision made outside jurisdiction is a decision in fact which is properly to be regarded for the purposes of the law pursuant to which it was purported to be made as “no decision at all”.  To that extent, in traditional parlance, the decision is “invalid” or “void”.

   [42] Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2, at [75]-[76]

   [43] Hossain v Minister for Immigration and Border Protection [2018] HCA 34, at [24] (Kiefel CJ, Gageler, Keane JJ) (references omitted)

2. In Hossain v Minister for Immigration and Border Protection the plurality said[44] that ordinarily an implied condition of a statutory conferral of decision-making authority is that the decision-maker “must proceed by reference to correct legal principles, correctly applied”.[45] The plurality further said that, again ordinarily, “a statute which impliedly requires that condition or another condition to be observed in the course of a decision-making process is not to be interpreted as denying legal force and effect to every decision that might be made in breach of the condition”; the “statute is ordinarily to be interpreted as incorporating a threshold of materiality in the event of non-compliance”;[46] and that, ordinarily, “breach of a condition cannot be material unless compliance with the condition could have resulted in the making of a different decision”.[47]

   [44] [2018] HCA 34, at [29]

   [45] Plaintiff M61/2010E v The Commonwealth (Offshore Processing Case) [2010] HCA 41, at [78]

   [46] [2018] HCA 34, at [29]

   [47] [2018] HCA 34, at [31]

1. The Authority’s power under s.473CC(1) of the Act to review a delegate’s decision is subject to the implied condition that the Authority must “proceed by reference to correct legal principles, correctly applied”. Two questions, then, arise. The first is whether s.473CC(1) of the Act is to be interpreted as incorporating the threshold of materiality in the event of the Authority not complying with the implied condition. The second is, assuming that threshold of materiality is incorporated, whether the Authority’s considering the 2013 Statement was material to its decision.

2. In my opinion s.473CC(1) of the Act is to be interpreted as incorporating the threshold of materiality in the event of the Authority’s not complying with the implied condition that it must “proceed by reference to correct legal principles, correctly applied”. That is so because it is the nature of the review that the Authority is required to undertake that the potential consequences of the Authority failing to comply with one or more provisions may range from the wholly inconsequential to the Authority’s not undertaking the tasks it was required to undertake or to deny an applicant a real chance of succeeding on the review.

3. That leaves the question of whether the Authority’s considering the 2013 Statement was material; that is, had the Authority not considered the 2013 Statement, could the Authority have made a different decision? Counsel for the applicant submitted that that question is to be answered in the affirmative. The basis of that submission is that the Authority relied on the 2013 Statement to make general adverse credibility findings, and it is not possible to disentangle from that adverse credibility finding the Authority’s reliance on the 2013 Statement.

4. The starting point in addressing counsel for the applicant’s submissions is to identify the part of the 2013 Statement on which the Authority relied. It is apparent from paragraphs 26 and 28 of its reasons for decision that the Authority relied only on paragraph 10 of the 2013 Statement, which is as follows:[48]

   In about March 2012, I began my compulsory military service. I decided that this was the only way I could get out of the country. A couple of months later, I managed to find someone who could assist me in obtaining a passport fraudulently.

   [48] CB49, [10]

5. The Authority relied on this passage in two ways. First, it found that it was in the 2013 Statement the applicant first claimed to have undertaken military service in Iran, and to have absconded from the army.[49] Second, the Authority referred to the applicant in his 2017 Statement attempting to correct his 2013 Statement, noting that the 2013 Statement contains an interpreter’s declaration to the effect that the contents of the 2013 Statement were interpreted to the applicant in Persian.[50]

   [49] CB340, [26]

   [50] CB341, [28]

6. The Authority’s relying on the 2013 Statement to find that the applicant first made a claim based on his military service and his absconding the army until that time was not material to the Authority’s decision. There is no suggestion the applicant made such claim before he made it in the 2013 Statement. Had the 2013 Statement not been provided before the Authority, it would have appeared that the applicant first made such claim in the 2017 Statement. Proceeding on the basis of a finding that the applicant first raised a claim in 2017 rather than in 2013 could not have made any difference to the decision the Authority made. In any event, to the extent the Authority relied on the applicant first making a claim based on his military service and absconding from the army in the 2013 Statement as a ground for making an adverse credibility finding against the applicant, what would have been relevant in the making of the finding is not that the applicant first made the claim in 2013, but that he did not make such claim during the Arrival Interview.

7. The Authority’s noting that the 2013 Statement contains an interpreter’s declaration to the effect that the contents of the 2013 Statement were interpreted to the applicant in Persian also is not material. That is so because the only conceivable relevance to the Authority referring to the 2013 Statement being interpreted in Persian is that the applicant must have known what was in the 2013 Statement. The applicant, however, did not claim or suggest that his 2013 Statement was not interpreted to him in a language he understood, or that he misunderstood what had been interpreted to him. In effect, what the applicant said in paragraph 23 of the 2017 Statement about paragraph 10 of his 2013 Statement is that he intended to convey a meaning that was not reflected in the words he in fact used, and this might have occurred because of a slight misunderstanding between him and the lawyer who assisted the applicant at the time. Paragraph 23 of the 2017 Statement otherwise repeats a part of what the applicant said in paragraph 10 of the 2013 Statement. To the extent the Authority did refer to paragraph 10 of the 2013 Statement it would have done so for no reason other than confirm what the applicant stated in paragraph 13 of the 2017 Statement.

8. There is a further, and more general reason why the Authority’s reliance on the 2013 Statement is not material. As my detailed summary of the Authority’s reasons should demonstrate, the Authority relied on a number of significant matters for concluding the applicant’s claims were no credible. In those circumstances, it is impossible to imagine that had the Authority not referred to the 2013 Statement in the manner it did that it could have found the applicant’s claims to be credible and, therefore, could have made a different decision.

Conclusion and disposition

1. I have concluded that the Authority relied on paragraph 10 of the 2013 Statement, the information contained in that paragraph was not information within the meaning of “review material” given by s.473CB(1) of the Act, or “new information” within the meaning of s.473DC(1) of the Act and, therefore, it was not information the Authority could consider; to the extent the Authority relied on the 2013 Statement, and thus relied on information which it could not consider, it failed to comply with the implied condition attached to the exercise of its power under s.473CC(1) of the Act that it must “proceed by reference to correct legal principles, correctly applied”; but the Authority’s reliance on the 2013 Statement was not material because the Authority’s not relying on the 2013 Statement could not have resulted in the making of a different decision.

2. I propose, therefore, to order that the application be dismissed. I will deal with the question of costs when I pronounce my order.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 22 November 2018

CORRECTIONS

Paragraph 18 of the reasons for judgment has been corrected as follows:

1. The applicant relies on the one ground set out in the further amended application (emphasis in original):

   The Second Respondent acted beyond the scope of the power conferred on it under s 473DB(1) of the Migration Act 1958 (Cth) (Act) in considering the Applicant’s statutory declaration of 17 August 2013 (2013 Statement) because:

   (a)it failed to confine itself to consideration of the review material provided under s473CB(1) of the Act as required by s 473DB(1); and

   (b)did not turn its mind to the test proposed imposed by s 473DD(a) before considering “new information”, as defined in s473DC of the Act or comply with the requirements of s 473DE in respect of it.; or

   (c)alternatively to 1(b), the 2013 Statement was neither review material nor new information.

   Particulars

   (cd)   On 6 November 2017, the delegate of the Minister of Immigration and Border Protection’s [sic] refused the Applicant a Safe haven Enterprise Visa (SHEV).

   (e)On 9 November 2017, the Secretary of the Department of Immigration and Border Protection (Secretary) referred the decision of the delegate to the Second respondent for review and provided the Second Respondent with “review material” within the meaning of s 473CB(1) of the Act. The 2013 Statement was not included with the review material.

   (f)It may be reasonably inferred that the 2013 Statement was not before the delegate when he made his decision because:

   (i)the 2013 Statement was submitted in connection with the Protection visa application lodged by the Applicant on 22 August 2013;

   (ii)the Department wrote to the Applicant on 30 November 2015 to advise that the Applicant’s Protection visa application was invalid;

   (iii)the Applicant did not submit the 2013 Statement in connection with his SHEV application;

   (iv)the delegate’s decision states that “The applicant’s claims for protection, including those provided at interview, and supporting evidence are contained in department file . . .”;

   (v)the delegate’s decision makes no direct or indirect reference to the existence of or content of the 2013 Statement; and

   (vi)the 2013 Statement was not included with the review material on 9 November 2017.

   (g)The Secretary did not consider that the 2013 Statement was relevant to the Second Respondent’s review at the time the decision was referred:

   (i)On 6 December 2017, the Second Respondent requested the secretary provide it with the 2013 Statement.

   (ii)By email on 7 December 2017 the Secretary declined to provide the Second Respondent with the 2013 Statement and stated that it had concluded that it was not relevant to the Second respondent’s review.

   (iii)On 12 December 2017, the Second Respondent again requested that the secretary provide it with the 2013 Statement.

   (iv)On 12 December 2017, the Secretary provided the Second respondent the 2013 Statement.

   (h)By reason of particulars (a) to (d) above, the 2013 Statement was not review material for the purposes of s 473DB(1).

   (i)By reason of particular (e) above, the 2013 Statement was new information within the meaning of s 473DC.

   (j)In the course of determining its jurisdiction, the Second Respondent erroneously concluded that the 2013 Statement was not new information [5]-[6] despite the matters at particulars (a) to (d).

   (k)In affirming the delegate’s decision not to grant the Applicant a SHEV, the Second Respondent considered and took into account in reaching its decision the 2013 Statement.

   (l)The Second Respondent did not turn its mind to whether there were exceptional circumstances to justify considering the 2013 Statement as new information as required by s 473DD(a) or comply with the requirements of s 473DE in respect of it.

   (m)In the alternative to particulars (i) to (l) above, the 2013 Statement was neither review material nor new information (by reason of having been before the Minister when the Minister made the decision under s 65 of Act [sic]).