BWV18 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 15
•13 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BWV18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 15
File number(s): SYG 1045 of 2018 Judgment of: JUDGE LAING Date of judgment: 13 January 2025 Catchwords: MIGRATION – application for judicial review of a decision by the Immigration Assessment Authority (“IAA”) – whether the IAA erred in its application of the real chance test in respect of the reasonably foreseeable future, or did not take into account aspects of the country information in considering the reasonably foreseeable future – whether the IAA erred in its construction and application of the requirements of s 473DD of the Migration Act 1958 (Cth) – application succeeds Legislation: Migration Act 1958 (Cth) s 473DD Cases cited: ACO18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 463
AZT22 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 90
CSR16 v Minister for Immigration and Border Protection [2018] FCA 474
DXP18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 774
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020] FCAFC 159; (2020) 294 FCR 150
Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217
Division: General Number of paragraphs: 40 Date of hearing: 16 September & 15 November 2024 Place: Sydney Counsel for the Applicant: Ms F McNeil Solicitor for the Applicant: Westside Legal Counsel for the First Respondent: Ms R Graycar Solicitor for the First Respondent: Mills Oakely Lawyers Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 1045 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BWV18
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
13 JANUARY 2025
THE COURT ORDERS THAT:
1.A writ of certiorari issue quashing the decision dated 16 March 2018 in file IAA18/04208.
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 made by the Immigration Assessment Authority (IAA) (as it was). By that decision, the IAA affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a protection visa.
BACKGROUND
The applicant applied for the protection visa that is the subject of these proceedings on 28 September 2015.
On 20 September 2016, the Delegate refused the application. The IAA then affirmed the decision not to grant the visa on 18 November 2016.
On 7 December 2017, the Federal Circuit Court of Australia (as it was then known) remitted the application back to the IAA for reconsideration. On 16 March 2018, the IAA once again affirmed the Delegate’s decision.
THE IAA’S DECISION
The IAA assessed, by reference to s 473DD of the Migration Act 1958 (Cth) (Act), whether certain new information ought to be considered (at [6]-[14]). The IAA determined that some new information was able to be considered pursuant to s 473DD and some was not. This is the subject of further consideration below.
The IAA accepted that the applicant was a Shia Muslim and an Iraqi national (at [18]).
The IAA was not satisfied that the applicant was a credible witness. The IAA did not accept the applicant’s claims in relation to him reporting Mahdi army operations in his neighbouring house or any of the subsequent events that he claimed had followed (at [21]).
The IAA did not accept that the applicant’s wife had been killed as a result or that the she had “died, either in this incident or under any other circumstances” (at [26]).
The IAA accepted that the applicant had suffered from mental and physical health conditions and may have received treatment whilst in immigration detention and in the community. However, the IAA did not accept that these conditions had impacted the applicant’s ability to present his claims. The IAA also did not accept that the applicant was undergoing any treatment for physical or mental health issues at the time of its decision (at [31]).
The IAA reasoned at [32]:
32.I accept the applicant may have been affected by his travel to Australia and may have forgotten aspects of his claims or was unable to provide specific detail in relation to certain aspects of his claims, however I find the number of inconsistencies in relation to his substantive claims and the variations which he has presented since his arrival in Australia to be of a substantial nature. While some of these inconsistencies may not be significant when considered individually, when considered cumulatively, and in conjunction with the reasons he departed Iraq and his claimed fear of returning to Iraq, I am not satisfied the applicant is a credible witness and I find he has fabricated his claims for protection. I do not accept the applicant’s claims in relation to the Mahdi army operating in the house next to him, I do not accept he informed the police of any Mahdi army operations, I do not accept the police arrested any members of the Mahdi army on the basis that he provided them with information. I also do not accept the applicant’s home was raided by the Mahdi army, that his wife was kidnapped and killed under the claimed circumstances or any other circumstances, that the Mahdi army or any Shia militia group has any adverse interest in the applicant, and/or that this was the reason he departed Iraq. Given I do not accept the applicant’s wife is dead, I also do not accept that his wife’s family is after the applicant on this basis.
The IAA did not accept certain claims that had been made regarding the applicant’s employment, travel and education history and the claimed wealth of his family (at [33]). Although the IAA accepted that the applicant’s cousin may have been killed, the IAA did not accept that there was any correlation between his cousin’s death and reasons why the applicant could not return to Iraq (at [34]). The IAA did not accept that the applicant published an article which spoke ill of the leader of the Mahdi Army or that he received a threatening phone call as claimed (at [35]).
After considering country information, the IAA concluded that it was not satisfied that the applicant would face a real chance of harm travelling to or on return to his home area as a Shia Muslim and/or an asylum seeker from Australia (at [43]-[50]). The IAA found that the applicant departed Iraq on a genuine passport which he no longer held. The IAA was satisfied that he would be able to re-enter Iraq and not face any adverse attention from the Iraqi authorities or anyone else. The IAA was not satisfied that there was a real chance the applicant would face any harm on this basis upon return (at [51]).
Having regard to the above and “the applicant’s profile as a whole”, the IAA concluded that it was not satisfied there was a real chance the applicant would face harm in the reasonably foreseeable future (at [52]). The IAA accordingly found that the applicant was unable to meet the criteria for the protection visa and affirmed the Delegate’s decision (at [53]-[57]).
PROCEEDINGS BEFORE THIS COURT
The applicant commenced these proceedings through an application filed on 13 April 2018. The applicant ultimately relied upon the following grounds in a further amended application filed on 14 October 2024:
Ground 1
The IAA found at [49] that “given the country information before me, I am not satisfied the applicant will face a real chance of any harm on return to Najaf as a Shia Muslim”. The IAA at [14] noted that “the country information provided to the IAA which post-dates the delegate’s decision ... published throughout 2017 ... highlights the changing and volatile security situation in parts of Iraq [and] the fluidity of the situation in Iraq”. The IAA, in considering whether the applicant faced a real chance of serious harm on return to Najaf, including into the reasonably foreseeable future, did not take into account or factor into its assessment the “changing and volatile security situation” and “the fluidity of the situation in Iraq”. The IAA thereby erred in its application of the real chance test in respect of the reasonably foreseeable future or did not take into account an aspect of the country information referred to by the IAA at [14] in considering the reasonably foreseeable future. This is a jurisdictional error.
Ground 2
[not pressed]
Ground 3
The IAA erred in its construction and application of the requirements of section 473DD of the Migration Act 1958 (Cth) with respect to whether the IAA should consider, as new information:
(1)a photograph of the plaque installed on the grave relating to the applicant’s wife… (IAA decision at [8] and [11]);
(2)a photocopy and English translation of a court decision relating to the arrest of criminals and that protection is required to be granted to his wife and family… (IAA decision at [8] and [11]); and
(3)the information provided by the applicant as to the applicant holding various political opinions and/or being a member of a variety of particular social groups (IAA decision at [12]).
The IAA failed to exercise its statutory power in s 473DD of the Migration Act 1958 (Cth) on a correct basis:
(a)with respect to whether the new information met the preconditions of s 473DD(b)(ii): CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 at [41]-[43]; and
(b)in failing to exercise its statutory power in s 473DD(a): AUS17 v Minister for Immigration and Border Protection [2020] HCA 37 at [11] per Kiefel CJ, Gageler, Keane and Gordon JJ at [23] per Edelman J.
Those errors are properly characterised as an error of a jurisdictional kind, because they went to the proper and lawful discharge of the Authority’s task: Craig v South Australia [1995] HCA 58; 184 CLR 163 at 177-178, [12]-[14].
Ground 1 – country information regarding volatility and fluidity
In relation to ground 1, the applicant contended that the IAA failed to consider, in assessing whether he faced a real chance of harm, country information post-dating the Delegate’s decision regarding the fluidity and volatility of the situation in Iraq that had been referenced earlier in its decision. The applicant contended that the IAA therefore erred in its application of the real chance test in respect of the reasonably foreseeable future, or did not take into account an aspect of the country information referred to by the IAA at [14] in considering the reasonably foreseeable future.
Paragraph 14 of the IAA’s reasons read as follows:
14.In relation to the country information which was published subsequent to the delegate’s decision I consider this to be new information. I have been satisfied that this information could not have been provided to the delegate earlier. The delegate’s decision was made in September 2016. The country information provided to the IAA which post-dates the delegate decision was published throughout 2017 and highlights the changing and volatile security situation in parts of Iraq. Given the fluidity of the situation in Iraq, I am satisfied there are exceptional circumstances to justify considering this information.
Paragraph 14 was situated in the part of the IAA’s decision considering the information before the IAA and, in particular, what was new information and whether it met the requirements of s 473DD of the Act.
The applicant observed that in considering whether an applicant faces a real chance of serious harm on return to their home country, decision-makers are required to consider the situation for the applicant into the “reasonably foreseeable future”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 278-279.
The applicant submitted that at [45]-[49] of the IAA’s decision, the IAA did not take into account or factor into its assessment the “changing and volatile security situation” or “the fluidity of the situation in Iraq”. This was notwithstanding its acknowledgment at [14]. In this regard, the applicant:
(a)observed that the IAA, in making findings at [45]-[49], did not expressly refer to “the changing and volatile security situation” or “the fluidity of the situation in Iraq” in considering the reasonably foreseeable future;
(b)accepted that the IAA at [45]-[49] “conscientiously assessed the security situation in Najaf and the southern governorates at the time of the IAA’s decision and considered up to date country information in undertaking this assessment”;
(c)submitted that the end-point of the IAA’s assessment was a finding about whether the applicant faced a real chance of serious harm on return to Najaf at the time of the IAA’s decision;
(d)observed the need for the IAA to apply the “real chance” test; and
(e)observed that the IAA did not expressly refer to “the reasonably foreseeable future” at [49].
I am not persuaded that the IAA failed to consider the information relied upon in assessing whether the applicant faced a real chance of harm in the reasonably foreseeable future, or otherwise relevantly erred in its application of the real chance test.
I accept that the IAA at [49] stated that it was not satisfied the applicant would face a real chance of harm “on” or “upon” return to Najaf. However, the fact that the IAA did not expressly reference the foreseeable future in this paragraph does not mean that it was not considered in the IAA’s ultimate exercise of jurisdiction. Three paragraphs down, after considering [36]-[51], the IAA expressly concluded:
52.Taking into account the applicant’s profile as a whole, I am not satisfied there is a real chance the applicant will face harm, now or in the reasonably foreseeable future.
(emphasis added).
At [57], the IAA further concluded in relation to the complementary protection criterion that there were “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 that the applicant will suffer significant harm”.
The IAA’s assessment, therefore, was expressly forward looking in the ultimate conclusions that were reached by the IAA. I am not persuaded that, in undertaking this assessment, the IAA failed to have regard to its earlier assessment at [14] of country information indicating the fluidity and volatility of the situation or the country information that underpinned it. The fact that the IAA did not repeat this assessment at [45]-[49] does not mean that it was not taken into account. It is apparent from [44] that the IAA considered that the country information “provided by the applicant” confirmed the country information relied upon by the IAA regarding the “increased” attacks of Sunni extremist groups against a range of targets. It is therefore apparent that the IAA considered the country information that had been additionally provided by the applicant in considering the country information that was collectively before it.
Country information indicating the volatility and fluidity of the situation did not necessitate a conclusion that the applicant would face a real chance of harm in the reasonably foreseeable future. I accept the Minister’s submission that it was open to the IAA to have reasoned as it did. After considering the country information before it in its totality, the IAA concluded that it was not satisfied there was a real chance of the applicant facing harm at the time of the IAA’s decision “or in the reasonably foreseeable future” (at [52]).
Having regard to the above, I am not persuaded that ground 1 ought to succeed.
Ground 3 – s 473DD of the Act
Ground 3 contended that the IAA erred in its construction and application of the requirements of s 473DD of the Act in relation to three categories of new information.
The first and second related to a photograph said to have been of a plaque installed on the grave of the applicant’s wife, and a photocopy and translation of a court decision. The IAA reasoned as follows in relation to this material at [8] and [11] of its decision:
8.In relation to the photograph of the plaque installed on the tombstone of the applicant’s wife and the court decision document, I note the applicant provided these documents in order to corroborate his claims in relation to his fear of returning to Iraq and his claim that his wife was killed by a militia group. I note that during the SHEV interview the delegate put to the applicant his concerns including reasons why he did not accept he was wanted by militia groups in Iraq and that he did not accept his wife had been killed by these militia groups. I find that if these claims were in fact true, the applicant would have provided corroborative evidence such as these documents to the delegate earlier. I also note the applicant has provided inconsistent details in respect to his claims since his arrival to Australia, in relation to when his wife was kidnapped and killed, where he was at the time and the who informed him of her being kidnapped. The applicant also did not provide any information to the department regarding her death until a significant period of time has lapsed. In relation to these two documents provided, the photo of the plaque which the applicant claims appears on his wife’s tombstone is a poor quality black and white photograph and inscription which is unclear and parts not visible. The translator who also translated the writing on the plaque has stated that alternative transliterations of personal names are possible. The court decision document is dated [redacted], subsequent to the applicants claimed departure date from Iraq and two days prior to his wife’s claimed death. The applicant has provided no further information as to why this court decision was issued when he claimed to have reported his fear from the militia group [redacted]. The applicant has not satisfied me that this new information is credible personal information which had it been known may have affected the consideration of his claims…
11.In sum, the applicant has not satisfied me as to the matters specified in s.473DD(b) of the Act in respect of any of this new information and I am therefore prevented from considering it.
The applicant relied upon CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 (CSR16), in which Bromberg J considered the applicable standard as follows at [41]-[43]:
41.In my view all that the “credible” element of the s 473DD(b)(ii) criteria requires is the Authority’s satisfaction that the “new information” is information which is open to be or capable of being accepted by the Authority as truthful (or accurate, or genuine). It is only at the deliberative stage of its review that the Authority will be required to determine whether or not the “new information” is true. The s 473DD(b)(ii) criteria is concerned with an earlier or anterior stage of the review directed at whether “new information” should be received by the Authority so that it may be considered at the deliberative stage.
42.The criteria is a filtering mechanism designed to separate information worthy of consideration at the deliberative stage from that which is not. In that context, the word “credible” is used in relation to information, not in the sense that the information is believed, but in the sense that the information is capable of being believed. It is only information that the Authority is satisfied is “evidently not credible” (VEAL v Minister for Immigration and Multicultural Affairs [2005] HCA 72; (2005) 225 CLR 88 at [17] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ) that fails to meet the credibility requirement imposed by the s 473DD(b)(ii) criteria.
43.The Authority determined that the “new information” that the appellants sought to have it consider did not meet the s 473DD(b)(ii) criteria by imposing a higher standard of satisfaction than the criteria requires. The Authority required satisfaction that the “new information” was true when all that the s 473DD(b)(ii) criteria requires is the Authority’s satisfaction that the new information is capable of being believed at the deliberative stage of the Authority’s review. In so doing the Authority misconstrued s 473DD(b)(ii) and misconceived what the exercise of its statutory power entailed. The Authority thereby fell into jurisdictional error: Graham v Minister for Immigration and Border Protection; Te Puia v Minister for Immigration and Border Protection [2017] HCA 33 at [68] (Kiefel CJ, Bell, Gageler, Keane, Nettle, and Gordon JJ); Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at [82] (Gaudron J) and [196] (Gummow and Hayne JJ).
The applicant observed that the principles articulated in CSR16 at [41]-[43] have been endorsed or applied in numerous subsequent cases. Such cases include Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020] FCAFC 159; (2020) 294 FCR 150 at [76] (Mortimer J, as her Honour then was, and Jackson J); ACO18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 463 at [34]-[36] (Judge Symons); and DXP18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 774 at [64]-[65] (Judge Ladhams).
The applicant submitted that the IAA fell afoul of those principles, by going beyond asking whether the information was credible in the sense of being “capable of being believed” and instead determining the “truth” of the information.
The Minister submitted that the IAA “clearly found that neither document was capable of being believed, nor that, had it been known it may have affected the outcome”. This was by reference to other issues the IAA had observed with the documents, including the lack of clarity regarding the inscription on the plaque noted by the translator, and difficulties in dates regarding the court decision.
I am unable to accept the Minister’s submissions. The IAA did not express that either of the documents were incapable of being believed, nor that they would have been incapable of affecting the outcome. The IAA did find that it was not satisfied that the information was “credible personal information which had it been known may have affected the consideration of his claims”, reflecting language from s 473DD(b)(ii). However, this was the product of the IAA’s finding that “if these claims were in fact true, the applicant would have provided corroborative evidence such as these documents to the delegate earlier”. This was, in effect, a finding that the claims were not true because (inter alia) the evidence had not been provided earlier. I therefore accept the applicant’s submission that the IAA fell into the species of error considered in CSR16 by asking itself if the information were true rather than applying the requisite, lower threshold. As will be considered below, the IAA’s further incorporation of its ultimate findings in relation to the preliminary stage of its reasoning additionally suggests that it misunderstood its task at the threshold or “filtering” stage. In fairness to the IAA, I note that the decision in CSR16 was handed down after the IAA’s decision. It therefore could not have been a decision of which the IAA was aware.
I accept that materiality has been demonstrated in relation to this error. Had the IAA applied the lower threshold required under s 473DD of the Act, then it is possible that it may have found that the requirements of this provision were met in relation to the court document and plaque copies. As the IAA recognised, those documents were provided to corroborate the applicant’s claims in relation to his fear of returning to Iraq and his claim that his wife was killed by a militia group. The IAA’s rejection of the applicant’s claims in this regard was based upon adverse credibility findings. Had the IAA considered the corroborative evidence, then it is possible (even if it is not necessarily likely) that the IAA’s assessment of the credibility of the applicant’s claims may have been different.
Having regard to the above, I accept that jurisdictional error has been demonstrated by the applicant under ground 3.
In relation to the third category of documents relied upon, I accept that the IAA also potentially misapplied s 473DD at [12] of its decision:
12.On 3 March 2018 the applicant submitted a further submission to the IAA. Contained in the submission is discussion as to why he does not agree with findings made by the delegate and elaboration on his already stated claims for protection. As part of this elaboration, the applicant has submitted that he holds various political opinions and/or is a member of a variety of particular social groups which he had not previously specified. I do not consider this to be new information, but rather argument as to the grounds on which he claims to satisfy the definition of refugee on the basis of claims that are already before me, either expressly or impliedly. However, in light of the findings I have reached on those claims, the issue of whether the applicant is (or might be perceived to be) a member of the particular social groups posited, or holds (or might be perceived to hold) certain political opinions, does not arise.
Two problems, potentially, affect the above. First, the IAA did not consider the applicant’s claim at the time of his submissions to hold various political opinions and/or to be a member of particular social groups “which he had not previously specified” to be new information. The IAA instead characterised what was said as “argument”. However, I accept the applicant’s submission that this went beyond mere “argument” and into the potential territory of “new information”, being “communication of knowledge about some particular fact, subject or event”: Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217 at [24] per Gageler J (as his Honour then was), Keane and Nettle JJ. The second difficulty with the above is that the IAA appears to have used its findings from the determinative stage of its review to decide the preliminary question required by s 473DD: see AZT22 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 90 at [19]-[25] and [52]-[72] (Banks-Smith and Jackson JJ).
In any event, I accept the Minister’s submission that materiality has not been demonstrated in relation to this category. In written submissions, the applicant referred broadly to LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610 at [7] and [14]. When asked to develop this submission at hearing, the applicant acknowledged that he was unable to identify any particular way in which this contended error, or its absence, would or could have altered the IAA’s reasoning process. Although the applicant referred generally to the security situation in Iraq, he was unable to identify any country information, for example, that may conceivably have produced a different result in relation to the information in question. Given the limited nature of the submissions on this issue, I have not been persuaded that materiality has been demonstrated in relation to this part of ground 3.
However, as the applicant has succeeded in his complaint regarding [8] and [11] of the IAA’s decision, I accept that jurisdictional error has been demonstrated under ground 3.
CONCLUSION
For the above reasons, the application before the Court succeeds.
I will hear from the parties in relation to costs.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 13 January 2025
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