BWS18 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 203
•21 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BWS18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 203
File number(s): SYG 1042 of 2018 Judgment of: JUDGE LAING Date of judgment: 21 February 2025 Catchwords: MIGRATION – application for judicial review of a decision by the Immigration Assessment Authority (“IAA”) – whether the IAA failed to consider a claim made by the applicant (or evidence given) – whether the IAA erred in not identifying “new information” – whether the IAA’s decision was otherwise affected by relevant error – application succeeds Legislation: Migration Act 1958 (Cth) ss 473DC & 473DD Cases cited: BYA17 v Minister for Immigration and Border Protection [2019] FCAFC 44; (2019) 269 FCR 94
DNA17 v Minister for Immigration and Border Protection [2019] FCAFC 146
DQU16 v Minister for Home Affairs [2021] HCA 10; (2021) 273 CLR 1
DVO16 v Minister for Immigration and Border Protection [2019] FCAFC 157; (2019) 271 FCR 342
EEM17 v Minister for Immigration and Border Protection [2018] FCAFC 180; (2018) 265 FCR 527
Division: General Number of paragraphs: 39 Date of last submission/s: 3 February 2025 Date of hearing: 20 September & 13 December 2024 Place: Sydney Appearing for the Applicant: In person Counsel for the First Respondent: Mr N Swan Solicitor for the First Respondent: Mills Oakley Lawyers Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 1042 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BWS18
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
21 FEBRUARY 2025
THE COURT ORDERS THAT:
1.A writ of certiorari issue quashing the decision dated 13 March 2018 in file IAA18/04321.
2.A writ of mandamus issue directed to the Administrative Review Tribunal requiring it to reconsider and determine the matter according to law.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LAING:
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (IAA) (as it was). The IAA affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Safe Haven Enterprise (Subclass 790) visa (protection visa).
For the following reasons, the application before the Court succeeds. Writs will accordingly issue quashing the IAA’s decision and remitting the matter to the Administrative Review Tribunal (as it now is) for redetermination.
BACKGROUND
The applicant is a citizen of Iraq who arrived in Australia in 2013 as an unauthorised maritime arrival.
On 13 May 2016, the applicant applied for a protection visa.
On 5 February 2018, the Delegate refused the application. The matter was then referred to the IAA for review.
On 13 March 2018, the IAA affirmed the Delegate’s decision.
THE IAA’S DECISION
The IAA considered whether there was “new information” before it capable of meeting the requirements of s 473DD of the Migration Act 1958 (Cth) (Act) at [4]-[6] of its decision:
4.Section 473DD of the Act provides that the IAA must not consider any new information from an applicant unless satisfied there are exceptional circumstances which justify considering the new information, and the new information was not and could not have been provided to the Minister or is credible personal information which was not previously known and had it been known may have affected the consideration of the applicant’s claims. The submission by the applicant’s representative addresses the delegate’s decision and findings. As such, those parts may be regarded as argument rather than new information and I have had regard to it. [The applicant’s representative] also states: “In a previous IAA decision it was stated that” and continues with a lengthy quote. Although the previous IAA decision is not identified it is clear that the quoted material is part of the Department of Foreign Affairs and Trade (DFAT), “DFAT Country Report, Iraq” published on 13 February 2015. This report is part of the review material therefore this is not new information.
5.[The representative] also lists some statistics relating to internally displaced persons (IDPs) in Iraq, from the UN High Commissioner for Refugees’ (UNHCR) report “Iraq Situation: UNHCR Flash Update - 20 November 2017”.1 The report does not form part of the review material and is therefore new information. It predates the delegate’s decision by more than 2 months. [The representative] has not provided any information as to why the report could not have been provided to the delegate. There is nothing before me to indicate that the report relates directly to the applicant or persons connected to him so it is not personal information. The applicant has therefore not satisfied me as to either of the matters in s.473DD(b)(i) or (ii). Further to this, I am not satisfied that exceptional circumstances justify the consideration of the new information.
6.I have obtained new information, this comprising the Department of Foreign Affairs and Trade (DFAT) "DFAT Country Information Report Iran", published on 21 April 2016. The applicant has made various claims relating to his treatment in Iran and citizenship status however the review material contains no reports specific to that country. I am satisfied that there are exceptional reasons to justify considering this new information.
(Footnote omitted)
The IAA accepted:
(a)that the applicant was born in an area of Iran, was of Arab ethnicity and a non-practising Shia Muslim (at [8] and [16]);
(b)certain information regarding the applicant’s family and employment history (at [8]);
(c)that the applicant had lived in an area of Iran from birth until he departed Iran, other than for a period of 45 days when he stayed in Amarah, Iraq (at [8]);
(d)that the applicant was a citizen of Iraq and did not hold Iranian citizenship, despite his father’s attempts to obtain Iranian citizenship on at least two occasions (at [9]);
(e)that the applicant was detained and questioned by the Iranian authorities on two occasions (at [10]);
(f)the applicant’s family was deported from Iraq in the 1970s because of his father’s membership of the Iraqi Communist Party (at [12]);
(g)the applicant had not been a member of the Communist Party in either Iraq or Iran, or a member of the Arab Ahwazi party (at [12]);
(h)people in Iraq called him names while he was there because he had an Iranian accent (at [16]); and
(i)the applicant drinks alcohol in Australia (at [16]).
However, the IAA did not accept that:
(a)the applicant was under surveillance by the Iranian authorities from 2011, or that limitations placed upon his family were due to the Iranian intelligence services or linked to the applicant’s detention and questioning (at [11]);
(b)the applicant was imputed to hold communist beliefs, or was subject to any discrimination or harm in Iraq, due to his father’s political views or membership of the Communist Party in the 1970s (at [13]);
(c)the applicant would have any interest in participating in political activities or publicly espousing his political views in Iraq (at [14]-[15]);
(d)the applicant would be considered an apostate and harmed for failing to attend mosque (at [16]);
(e)the applicant intends to drink alcohol in Iraq (at [16]);
(f)the applicant would be considered un-Islamic or would attract the attention of the authorities or Shia militias on account of his attire (at [16]);
(g)the applicant would not know where to live, who to live with, and had no connections in Iraq (at [17]); or that
(h)the applicant would face a real chance of harm amounting to serious or significant harm on account of discrimination (at [20] and [28]).
Having regard to country information, the IAA was not satisfied that the applicant would face a real chance of relevant harm as a Shia Muslim, due to sectarian violence or on account of the security situation in Iraq (at [22]-[23]). The IAA was not satisfied that the applicant faced a real chance of harm on account of his time in Australia or his asylum application (at [24]).
The IAA concluded that the applicant did not meet the criteria for a protection visa. Accordingly, it affirmed the Delegate’s decision (at [25]-[29]).
APPLICATION FOR REVIEW
The applicant commenced the current proceeding through an application filed on 13 April 2018. The matter remained in the central migration docket for some time and was previously docketed to another judge before more recently being docketed to me and listed for hearing.
The applicant relied upon the following sole ground:
Ground 1:
At [28] the Authority assessed the Complementary Protection Criteria’s, The Authority made an error in not assessing the applicant’s chances of employment or his ability to subsist, the Authority did not assess the fact that the applicant lived in Iraq for 45 days during his life time, SZSMQ v MIBP [2013] FCCA 1768 (Judge Nicholls, 31 October 2013) at [114]. The Court referred to circumstances such as payment for medical expenses and inability to attain employment as things that need to be taken into consideration, the Federal Circuit Court has said that while circumstances where such things may amount to significant harm may be few, they need to be determined with actual reference to an applicant’s circumstances rather than in the abstract.
(As per the original)
In an affidavit filed with the application, the applicant contended that the IAA “did not consider [his] claims for protection”.
The Minister submitted, and I accept, that [2], [7], [8] and [20] of the IAA’s decision confirms that the IAA was aware of the fact that the applicant had lived in Iraq for only 45 days. This claim was referenced by the IAA in those paragraphs. The IAA accepted this claim.
In relation to the applicant’s contention that the IAA failed to consider his ability to subsist in Iraq, the Minister submitted that no such claim was made in the statement of claims lodged with the applicant’s protection visa application (CB 111-113).
The Minister acknowledged that in the agent’s submission to the IAA (at CB 178-179), the agent had stated “in this case, the applicant have no contacts in Iraq that can facilitate finding work for him”, and “in this case the applicant have no pre-existing connections…”. This was in response to country information from the Department of Foreign Affairs and Trade (DFAT). The Minister submitted that the applicant’s concern in this regard appears to have arisen from an asserted lack of contacts or connections in Iraq. The Minister submitted that this was not accepted by the IAA at [17], observing also that the IAA had accepted at [8] that the applicant had worked in his father’s photography and printing business – employment experience that would plainly be relevant to the prospect of gaining future work. The Minister observed that the IAA was entitled to rely upon its earlier factual findings when assessing complementary protection: DQU16 v Minister for Home Affairs [2021] HCA 10; (2021) 273 CLR 1 at [27].
The parts of the agent’s submissions to the IAA were relevantly as follows:
…DFAT advises that Iraq continues to struggle with the economic legacy of 30 years of war and sanctions, and economic growth is hampered by various factors including political and security conditions; weak government and economic situations; underdeveloped private sector and outdated infrastructure. The oil sector creates few jobs, public sector employment is often insufficient, and underemployment is common. Moreover, country information indicates that in Shia dominated areas, there are reported instances of discrimination associated with patronage, such as not having the right contacts to secure access to jobs or housing, in this case, the applicant have no contacts in Iraq that can facilitate finding work for him.
DFAT has advised that there have been voluntary returns to Iraq and over 100 Iraqi failed asylum seekers have returned to southern Iraq without facing significant problems, and some returnees have taken up senior and middle level jobs in the government and public sector. However, the DFAT information does not identify the ethnicity or religion of these returnees; their educational or employment background; and whether they have returned home or an area that they have pre-existing connections, in this case the applicant have no pre -existing connections , the fact that the applicant's brother [name redacted] presence in Iraq is different to the applicant's ability to live in that country because he stayed only 45 days in Iraq…
Iraq is witnessing a lot of troubles in terms of people's ability to relocate or to subsist…
(emphasis added)
As the Minister observed, the IAA considered that the applicant had previously been employed in his father’s business (at [8]). It referred to the applicant’s brother’s presence in Amarah and business at [13]. At [17], the IAA reasoned:
17.The applicant further stated at his PV interview that he would not be able to return to Iraq as he would not know where to live or who to live with. He has no connections with the country whatsoever. I do not accept this claim. The applicant has stated that his brother [name redacted] has a residence in Amara, he has cousins who live in Amara and in Basra and his sister and her husband are soon to move or have recently moved to Basra, where the husband’s family is located.
The IAA therefore appears to have understood that what was claimed on the applicant’s behalf was essentially that he lacked any connections “whatsoever”. The IAA rejected this on the basis that the applicant had family connections there.
This either misunderstood, or did not effectively grapple with, the claim that had been made by the applicant regarding the effect of those connections. The applicant’s ultimate claim was not simply that he had no connections. His submission to the IAA expressly acknowledged that he had some family connections in Iraq, specifically in the form of his brother. What the applicant claimed, through submissions, was that despite this, his ability to subsist would be imperilled by a lack of “contacts in Iraq that can facilitate finding work for him” (emphasis added). He submitted that his brother’s presence did not answer his “ability to live in that country”. The applicant was, therefore, not claiming to lack contacts at all. Rather, he was claiming that those contacts were ineffective in addressing the impediments to subsistence that had been identified in country information that he relied upon.
Having regard to the above, I find that the applicant did make a “subsistence” style of claim that was predicated upon the quality and effectiveness of his contacts in Iraq. I do not accept that this claim (or evidence) was effectively considered or determined by the IAA at [8], [13], [17] or otherwise in the IAA’s decision. Although (as the Minister submitted) this information was limited in detail, it was centrally relevant to the applicant’s claims. If the IAA had understood, or considered, the applicant’s claim regarding the effectiveness of his contacts then it is possible that it may have reasoned differently regarding whether the applicant faced a real chance of relevant harm following return to Iraq. If it had done so, then it is possible that the outcome may have been different. Although it is possible that the IAA may have rejected the claim (or evidence), on the basis of a lack of corroboration or detail, or based upon other evidence before it, this does not exclude the possibility that the IAA may have reasoned differently.
The claim in question has been identified in submissions that were made to the IAA after the Delegate’s decision. It is apparent from [4]-[6] of the IAA’s decision that the IAA did not consider the claim to be new information. The Minister submitted that the IAA did not err in this regard, noting that the Delegate had found that the applicant would be able to settle back into Iraq successfully for reasons including family support. The Minister submitted that the agent’s statements regarding the applicant’s connections ought therefore to be read as a statement of the applicant’s disagreement with the Delegate’s decision rather than “new information”: DNA17 v Minister for Immigration and Border Protection [2019] FCAFC 146 at [32].
I am not convinced that this is correct. Although the statements undoubtedly disagreed with the Delegate’s reasoning, they did so by reference to a new claim (or evidence) regarding the applicant’s circumstances i.e. that, at the time of the submission to the IAA, the applicant lacked contacts in Iraq capable of facilitating employment. It is difficult to see how this was not new information.
The Minister submitted that even if the IAA erred in this regard, the error was not material (relying upon DVO16 v Minister for Immigration and Border Protection [2019] FCAFC 157; (2019) 271 FCR 342 at [101]-[103]). The Minister submitted that the IAA did not rely upon the submission in any adverse or unfair way. The Minister submitted that any error was immaterial.
I accept that cases raised at the hearing, namely BYA17 v Minister for Immigration and Border Protection [2019] FCAFC 44; (2019) 269 FCR 94 (BYA17) and EEM17 v Minister for Immigration and Border Protection [2018] FCAFC 180; (2018) 265 FCR 527 (EEM17), are not factually identical to the present. However, those cases serve to illustrate the potential importance of the IAA identifying new information. As was found in EEM17 at [45], approaching information through the prism of s 473DD may result in the IAA approaching its fact-finding in relation to the material differently. For the reasons given above, I do not accept the Minister’s submission that, unlike in BYA17, this is not a case where the IAA failed to deal with the information in question. I have found that the claim raised in the information, regarding the effectiveness of the applicant’s contacts, was not considered by the IAA.
In any event, the result is the same whether or not the information in question was properly regarded as new information. I have found above that the error in not considering the information in question was material. For similar reasons, error in not assessing the information against s 473DD of the Act was material. Had such an assessment occurred, then it is possible that the IAA may have found that the requirements of s 473DD were met. Had this occurred, and the information been considered, then it is possible that the outcome of the IAA’s review may have been different.
On the basis of the above, I accept that jurisdictional error has been demonstrated by the applicant.
Other matters raised by the applicant
The applicant raised a number of other matters through submissions at and after the hearing of this matter. Many of those matters essentially disagreed with the approach that was taken by the IAA. As I endeavoured to explain at hearing, this Court has no power to overturn the IAA’s decision based upon disagreement alone. Subject to the error identified above, it has not been demonstrated that the IAA’s reasoning was logically closed to the IAA. It is not apparent on my reading of the materials how the IAA’s reasoning could (otherwise) be said to give rise to relevant error.
The applicant’s submissions at hearing asked the Court to grant the applicant protection. As was also discussed at the hearing, this Court has no power to grant a protection visa. The Court’s powers are limited to assessing whether or not the decision under review is affected by legally relevant error. As such an error has been found, the matter will be remitted for reconsideration. That reconsideration cannot be done by the Court.
The applicant observed that an imputed political opinion may be capable of attracting protection. Whilst this may be accepted, it is apparent from [13]-[15] and [20] of the IAA’s decision that the IAA did not accept that the applicant had been imputed to hold political beliefs relating to his father, or that he would face a real chance of harm on account of his political views or his father’s political membership in the future. The IAA therefore appears to have considered, but not accepted, the applicant’s claims regarding imputed political views.
The applicant contended that the IAA failed to consider the “cumulative effect” of his claims. Limited detail was provided in this regard. As I have found above that the IAA did not consider part of the applicant’s claims, this contention, in a sense, succeeds. It is not apparent how it could otherwise succeed on the material before the Court.
In post-hearing submissions, the applicant raised a large number of further complaints in relation to the IAA’s decision (although the complaints were often expressed in relation to the “delegate”). The additional complaints included (inter alia) that the decision maker misapplied the burden of proof, misinterpreted ‘serious harm’ and ‘significant harm’, inadequately considered the applicant’s circumstances, failed to sufficiently consider state protection and denied the applicant procedural fairness by not putting to him the DFAT report or other material. Many of the other complaints made, in essence, appeared to be based upon disagreement with the approach taken by the IAA rather than upon any identifiable legal error.
The applicant’s post hearing submissions were expressed at a level of generality that made it difficult to understand how what was contended by the applicant was capable of demonstrating any legally recognisable error. For example, it is unclear how the IAA could be said to have “improperly applied the burden of proof” or misinterpreted the concepts of serious and significant harm. Although social discrimination may potentially meet the definition of serious harm, it will not necessarily do so. The applicant has not demonstrated how it could be said to have been closed to the IAA to have reasoned that the discrimination the applicant may face would not rise to the level of serious harm. The IAA made no finding that significant harm was confined to physical threats and the applicant has not explained, by reference to the material, why he says that this concept was misunderstood by the IAA.
Although the IAA did not decide the matter on the basis of a lack of state protection, it was not required to do so after finding that the applicant was otherwise unable to meet the criteria for protection. There was no obligation upon the IAA, in accordance with its procedural fairness obligations under Part 7AA of the Act, to put the DFAT report or other material that was before it to the applicant. The applicant has not explained if or how the IAA’s non-exercise of the discretion under s 473DC of the Act may be contended to have been legally unreasonable.
This is, of course, no criticism of the applicant. It can be difficult for unrepresented litigants to express grounds raised with precision. However, having reviewed both the applicant’s post hearing submissions and the material before the Court, it remains unclear how the matters raised by the applicant post-hearing might raise any arguable further basis for finding jurisdictional error. In these circumstances, and in circumstances where the Minister has not had the opportunity to respond to the applicant’s post-hearing submissions (and jurisdictional error has been found in any event), I do not consider it appropriate to grant leave for the applicant to rely upon the new grounds raised after the hearing before the Court.
Nonetheless, as the applicant has otherwise succeeded in demonstrating jurisdictional error the application before the Court succeeds.
CONCLUSION
For the above reasons, the decision of the IAA will be quashed. The matter will be remitted to the Administrative Review Tribunal requiring the matter to be reconsidered and determined according to law.
I will hear from the parties in relation to costs.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 21 February 2025
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