CJD18 v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FedCFamC2G 212

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

CJD18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 212

File number(s):

SYG 1294 of 2018

Judgment of:

JUDGE HUMPHREYS

Date of judgment:

22 March 2023 

Catchwords:

MIGRATION – Immigration Assessment Authority – Protection visa – whether statutory precondition for exercise of Authority’s power met – whether there was jurisdictional error.

Legislation:

Migration Act 1958 (Cth) s 46, 447, 473CC, 273CB, 473DB, 477,

Cases cited:

AWO19 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 27

CCM18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 158

CQR17 v Minister for Immigration and Border Protection [2019] FCAFC 61

DCF18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 857

EIH18 v Minister for Home Affairs [2022] FedCFamC2G 460

Minister for Immigration, Citizenship and Multicultural Services v SZMTA (2019) 264 CLR 421

Division:

Division 2 General Federal Law

Number of paragraphs:

62

Date of last submission/s:

13 March 2023

Date of hearing:

13 March 2023

Place:

Parramatta

Counsel for the Applicants:

Mr Gormly

Solicitor for the Applicants:

Refugee and Immigration Legal Service Inc

Solicitor for the Respondents:

Mr Pasas

ORDERS

SYG 1294 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

CJD18
First Applicant

CJE18
Second Applicant

CJH18

Third Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

order made by:	JUDGE HUMPHREYS
DATE OF ORDER:	22 March 2023

THE COURT ORDERS THAT:

1.The name of the First Respondent be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.

2.That the decision of the Immigration Assessment Authority be quashed.

3.A writ of mandamus directed to the Immigration Assessment Authority requiring it to determine the Applicant’s application according to law.

4.The First Respondent is to pay the Applicants costs, as agreed and assessed.

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 HUMPHREYS

INTRODUCTION

1. The applicants consist of a family unit, whereby the first applicant (“the applicant”) is the father of the second and third applicants (“the children”). They claim fear of harm in Iran as stateless Feyli Kurds.

2. The applicants arrived in Australia on 10 January 2011 as unauthorised maritime arrivals. They were prevented from applying for a Protection visa pursuant to s 46A of the Migration Act 1958 (Cth) (“the Act”). They were then subject to the Protection Obligations (POD) Evaluation process in order to determine whether or not to lift the s 46A bar.

3. On 7 June 2011, a Protection Obligations Evaluation officer found that it was not satisfied that the applicants were people to whom Australia had protection obligations. On 23 March 2013, upon being referred to the Independent Protection Assessor, the applicants were again found to not meet the criterion for a Protection visa and it was recommended that they not be recognised as persons to whom Australia had protection obligations.

4. The s 46A bar against the applicants was lifted on 23 August 2017 and on 19 September 2017 they applied for Safe Haven Enterprise visas (“SHEV” or “Protection visa”). On 31 October 2017, a delegate of the Minister for Immigration (“the delegate”) refused to grant the applicants their Protection visas.

5. On 6 November 2017, the applicants’ matter was referred to the Immigration Assessment Authority (“the Authority”) pursuant to s 473CA of the Act. The Authority affirmed the delegate’s decision not to grant the applicants their Protections visas on 5 December 2017.

6. The applicant’s now seek judicial review of the Authority’s decision, albeit some four months outside of the 35 day review period prescribed by s 477(1) of the Act.

   THE EVIDENCE

7. The Court book was tendered to the Court along with five Affidavits from either the applicant or his legal representatives. These Affidavits annexed various documents including a Further Amended Application. The Court notes that no objection was taken to the applicant relying upon his most recent Initiating Application.

   EXTENSION OF TIME

8. The first issue is whether the applicants should be granted an extension of time pursuant to

   
   

   s 477(2) of the Act, noting the application was lodged 119 days outside the prescribed 35 day time limit. In SZTES v Minister for Immigration and Border Protection [2015] FCA 719 the following matters were held to be relevant as to whether an extension of time should be granted:

   a.   the extent of the delay;

   b.   the explanation for the delay;

   c.   prejudice to the respondent due to the delay; and

   d.   The merits of the proposed application.

9. In the current matter, the extent of the delay of 119 days, is significant, but not to the extent that it would mitigate against the grant of an extension of itself.  In the applicant’s Affidavit, dated 21 September 2018 (Exhibit 2), he states that he is the full time carer of his two children. At the time of the IAA decision, it was school holidays and he did not have time to attend to the matter, as he was looking after his children. He experienced difficulties with his Centrelink benefit that caused him to have to move from Sydney to Brisbane with the assistance of the Salvation Army and Red Cross. He moved, as he felt he would have a better chance of obtaining work in Brisbane as compared to Sydney. Further, he does not have access to any IT resources. It was only when he obtained help from pro-bono legal assistance that he lodged his Initiating Application.

10. The first respondent properly concedes that there is no real prejudice to the Minister caused by the delay, but opposes leave being granted. That leaves the final matter, being the merits of the application. The Court is satisfied that there is merit in the proposed grounds such that it would be in the interests of justice for leave to be granted, such that the matter can be dealt with to finality on its merits. In so doing, the Court is conscious of the impact on the applicant of not granting leave.

11. Accordingly, the Court grants leave pursuant to s 447(2) of the Act, for the application to be filed out of time.

    THE IMMIGRATION ASSESSMENT AUTHORITY’S DECISION

12. The Authority’s decision record consists of 84 paragraphs going over 21 pages. Paragraphs 1 to 2 provide a summary of the applicants’ Protection visa applications. Paragraphs 3 and 4 outline the information before the Authority. The Authority states that it had regard to material given to it by the Secretary pursuant to s 473CB of the Act and that no new information was obtained or received by it.

13. At paragraph 5, the Authority outlines a summary of the applicant’s protections claims. The first applicant’s claims were summarised as follows:

    •He is stateless and does not have a right to reside in any country.

    •He is a Feyli Kurd who was born in Kurzestan Province, Iran. He is a Shia Muslim. His father was a Feyli Kurd from Iraq and his mother was an Ahwazi Arab. His father died when he was two years old and he was raised by his mother who only spoke Arabic and Farsi. At his entry interview he stated this is the reason he took his mother’s surname as his surname. He has no siblings or other relatives in Iran.

    •He has not rights in Iran as a Feyli Kurd as he can never be a citizen or Iran and he fears he will be harmed due to his statelessness and his ethnicity.

    •The applicant was a registered refugee in Iran and has previously had a Green Card that was converted to a White Card which he had to renew annually. These cards did not provide him with any services such as education, health care or access to employment. He also could not buy property. His freedom of movement was restricted and he was only able to leave his immediate area for between one week and one month and only with permission of the authorities.

    •When he realised there was no possibility of obtaining citizenship rights he joined the minority Arab population in Kurzestan. Because he joined this group the police came to his house to arrest him. He managed to hide from the police and then the court issued a summons. He stated that he believed the court summons means it is not safe for him to return because the government is persecuting people like him.

    •He was forced to work from a very early age as a fruit and vegetable cart seller on the streets and did not receive an education. He is illiterate.

    •Selling fruit and vegetables from a cart on the street is illegal in Iran and he constantly had to evade municipal authorities. On one or more occasions he was arrested and detained. On one occasion his fruit and vegetable card was confiscated.

    •In 2003 the applicant married an Iranian citizen who is Ahwazi Arab. His mother-in-law arranged the marriage, although other members of her family did not approve of his wife marring a foreign national. He was married by a sheikh in a religious ceremony.

    •When the applicant had his first child, his wife’s family became difficult as his children were Feyli Kurds and could not get birth certificates or Iranian nationality and would be discriminated against.

    •His wife’s brother physically assaulted him and threatened to kill him if he did not leave the relationship. They stated that his possessions were their possessions.

    •He made a complaint about this to the court but the court would not hear the matter because he was a Feyli Kurd and he did not have the same rights as an Iranian citizen.

    •In 2010 he was divorced against his and his wife’s wishes. His wife’s brothers forced them to divorce and a sheikh signed papers stating they were now divorced.

    •He received full custody of the children. The documentation relating to his custody of the children was destroyed on the boat on the way to Australia.

    •Soon after his divorce he started making arrangements to flee Iran with the children.

    •As he had no passport he arranged for a friend to create a false passport for him. The children did not have passports but were included on his passport. He had no problems departing Iran by plane with the children using this false passport. He destroyed his passport and his ‘White Card’ by throwing them into the water whilst on the boat trip to Australia.

    •He fears if he returned to Iran the Basij will find out he has returned there as there are checkpoints in every neighbourhood and they will kill him as he left without permission on a false passport.

    •He fears he will be harmed by his wife’s family if he returned to the Kurzestan region.

    •He fears that government authorities in Iran may have accessed his information during the Department data breach in February 2014, and this will also put him at risk of harm if he were returned to Iran.

    •He fears harm if he is returned involuntarily as a failed asylum seeker who has resided for a lengthy period of time in a Western Country.The second and third applicants protection claims, in addition to the first applicant’s claims, are provided as follows:

    •Both children fear persecution and discrimination in Iran on the basis of their statelessness and their ethnicity as Feyli Kurds. As their father is a Feyli Kurd they cannot inherit Irani citizenship from their mother. They do not have birth certificates.

    •As Feyli Kurds they will not have access to education, healthcare or employment in the future and they will have no freedom of movement in Iran.

    •They do not have documents to return to Iran as they are not recognised as citizens.

    •They have no contact with their mother who does not have a right of custody and they have no other relatives in Iran, so they will be totally unsupported if they return.

    •They arrived in Australia when they were very young. They have no memory of life in Iran. Their language is English and they do not speak any other language now. Their culture and life is in Australia. If they are forced to return to Iran they will suffer psychological damage / mental health problems as a result of their extended period of residence in Australia.

14. At paragraph 6, the Authority states that is satisfied that the applicants’ names and personal details were released during the Department of Immigration data breach in February 2014. Paragraphs 7 and 8 outlined the refugee assessment criteria provided by the Act.

15. At paragraph 22, the Authority was satisfied that the applicants are Iranian nationals who departed Iran as the holders of genuine passports and relevant identity documents. It was not satisfied that the applicants are stateless Feyli Kurds. The Authority found that the applicants are of Arab ethnicity and that they were born in Iran.

16. At paragraph 23, the Authority found that Iran would be the receiving country for the purpose of the application and that there was no evidence to suggest that the applicants had rights to enter or reside in any other country than Iran.

17. At paragraph 29, the Authority noted country information that women cannot marry without the approval of their male guardian. As such, the Authority found it implausible that if the first applicant’s wife’s brothers were ‘fanatics’ about Arabs not marrying foreign national that they would then allow their sister to marry the applicant. The Authority was satisfied that the first applicant’s statelessness and ethnicity were not the reasons that his wife’s brothers insisted on their sister’s divorce with the applicant in 2010.

18. At paragraph 30, the Authority states that the country information demonstrates that marriage can only be considered legal if it was performed by a member of the clergy and that it must be registered. Not registering a marriage could be considered as living in sin and committing adultery which is an offence punishable by death. The Authority was therefore satisfied that the applicant was married by a member of the clergy and that his marriage was registered.

19. At paragraph 31, noting the Shia philosophy of law concerning divorce, the Authority was not satisfied that the applicant’s account of the events of his divorce were credible. Noting further inconsistencies as to the wife’s intention to either get divorced or remain married and other considerations about the applicant’s ability to care for the family, the Authority was not able to make a finding about the applicant’s current marital status.

20. At paragraph 33, the Authority considered country information that indicates that mothers are deemed the primary custodian of children under the age of seven, after which custody automatically is transferred to the father. The Authority found that the applicant’s evidence that his wife did not want their children after their alleged divorce to not be credible, particularly considering that he also claimed that the his wife did not want to divorce him and that she loved her children.

21. At paragraph 34, the Authority states that the applicant’s evidence and country information suggests that the applicants departed Iran with shenasnamehs and/or separate passports, and some document that demonstrated that the applicant had custody of the children. Due to the conflicting evidence between the applicant and the country information, the Authority was unable to determine whether the applicant had sole custody of the second and third applicants, or whether he had genuine documentation indicating that he had sole custody.

22. At paragraph 38, the Authority accepts that the applicant may have had quarrelled with his wife’s family members, however due to the conflicting evidence and vagueness and lack of details, it did not accept that the wide’s family members harmed him or threatened to harm him after he and his wife divorced. The Authority was not satisfied that the applicant’s fear of harm from his wife’s family members was well-founded or that he fears harm based on a Convention reason.

23. At paragraph 43, the Authority accepts that the applicant has suffered societal discrimination on the basis of his Arab ethnicity. At paragraph 45, the Authority accepted that the applicant may have attracted adverse attention from municipal authorities by selling fruit and vegetables from a street cart. It accepted that the applicant was arrested and detained on one occasion for two to three days and had his fruit cart confiscated two to three years prior to his departure from Iran. However, the Authority was not satisfied that the applicant suffered a threat to his life or liberty or was subject to significant physical harassment or ill-treatment when detained. It was not satisfied that the applicant suffered significant economic hardship or that he was denied access to basic services that threatened his ability to subsist. Therefore, at paragraph 46, the Authority was satisfied that there was no real chance that the applicant would suffer serious harm for reasons of his race or ethnicity.

24. Paragraphs 47 to 51 deal with the applicant’s faith. The Authority noted that he stated that he did not wish for his religion to form part of his protection claims, however it still had regard to whether he may face any risk of serious harm on the basis of religion. Although the applicant claimed that he was baptised according to the Christian faith, there was no evidence of such. Rather, the applicant consistently referred to himself as being a Shia Muslim. The Authority was not satisfied that the applicant, upon being returned to Iran, would seek to practice the Christina faith and was not satisfied that the applicant would suffer serious harm for reasons of his religion.

25. Paragraphs 52 to 58 consider claims in relation to the Department of Immigration data breach. The Authority accepted that the data breach was a breach of the applicants’ confidentiality and duty of care owed by the Department of Immigration. Given the limited personal information published, it did not accept that the Iranian authorities would be aware of the applicants’ claims for protection as a result of the breach itself. Given that the Authority had already found that the applicants were Iranian citizens, it did not consider that the information available through the breach, that the applicants were recorded as stateless, would be information that would give rise to a real chance of the applicants facing serious harm now or in the foreseeable future.

26. Given its previous findings that the applicant is an Iranian citizen, did not use a false passport to depart Iran, that he departed Iran legally using a genuine passport, that the children departed using genuine passports or Shenasnamehs and that the applicant disposed of any identification documents at sea, the Authority was satisfied that the applicants would likely be returned to Iran on temporary travel documents. After considering relevant country information, the Authority considered that the applicant would not fall into any category of person who has been reported to have been arrested upon return to Iran as failed asylum seekers, namely student activists, journalists and political activists. It was satisfied that there is nothing about the applicant’s profile or circumstances which would suggest that the Iranian authorities would impute him with holding anti-regime or anti-government opinion such that he would be at risk of serious harm. The Authority did accept that the applicant would likely be questioned on return to Iran, however it was not satisfied this amounted to serious harm.

1. At paragraph 64 and 65, the Authority makes a cumulative consideration of the applicants’ protection claims. Having regard to all of the matters discussed above cumulatively, the Authority was satisfied that there was no real chance that first applicant would suffer serious harm if he were to be returned to Iran now or in the foreseeable future.

2. Paragraph 66 to 73 deal with the children’s protection claims. The Authority notes that citizenship is inherited through the father, and as the father has been found to be an Iranian citizen, the children are Iranian citizens themselves. As the first applicant is of Arab ethnicity and so was the mother of the children, the Authority was satisfied that they are also of Arab ethnicity. The Authority accepted that the children’s primary language is English, but did not accept that they do not speak Arabic considering that the  applicant does not speak English well and that they would need to communicate with him. It was also noted that on their SHEV applications it was recorded that the children spoke Arabic. The Authority accepted that the children likely do not speak Farsi, which would make education difficult in Iran. The Authority accepted that the children may experience some initial difficulty in attending school in Iran, however it was not satisfied that this difficulty amounted to serious harm.

3. The Authority noted that, as Iranian nationals, the children will have access to health care, education, basic services and employment in the future. It was accepted that the children may face some discrimination on a day-to-day basis as a result of their ethnicity, but this does not amount to serious harm pursuant to s 5J(5) of the Act.

4. At paragraph 69, the Authority accepted that the children will be assumed to have been applicants for asylum in Australia. However, given the previous findings as to the fathers profile and circumstances, the Authority did not consider that the children would be investigated to ascertain whether they were politically active in Australia. The Authority was satisfied that there is no real chance that they would suffer serious harm if they were detained for a few hours with the applicant upon arrival to Iran while he is being questioned. Given the applicant’s profile and circumstances, the Authority was also satisfied that the children would not be imputed to have any anti-regime or anti-government political opinions or be of adverse interest to the Iranian authorities.

5. The Authority accepted that the children’s names were included in the Departmental data breach, however as discussed in relation to the applicant this does not give rise to a real chance of serious harm now or in the foreseeable future.

6. The Authority acknowledged that the children may suffer some psychological trauma associated with returning to Iran and its culture as the children have been in Australia for so long. It also considered that the children would have suffered significant psychological trauma associated with separation from their mother at a young age and enduring a lengthy journey to Australia, whereby they did not speak the language and were unfamiliar with customs, food, culture and knowing no one.

7. The Authority notes the children’s protections claims that they will suffer mental health problems as a result of their membership of a particular social group, being returned failed asylum seekers who have resided in a Western country for a considerable length of time. However, it stated that this is not the essential and significant reason for the persecution. As such, the Authority was not satisfied that the nature of the harm meets the standard of serious harm required by s 5J of the Act.

8. At paragraph 73, the Authority states that it had assessed the children’s protection claims both individually and cumulatively and it was not satisfied that there is a real chance that they will suffer serious harm.

9. Paragraph 75 to 77 outline the complimentary protection assessment criteria. Paragraphs 78 to 83 outline the applicants’ protection claims and the Authority’s findings in relation to these as discussed above in relation to the complimentary protection assessment. Having revisited these findings, the Authority found at paragraph 84 that there were no substantial grounds for believing that there is a real risk that the applicants would suffer significant harm upon being returned to Iran and that they do not meet s 36(2)(aa) of the Act.

   GROUNDS OF JUDICIAL REVIEW

10. The applicants’ single ground of judicial review is contained within an amended Initiating Application filed with the Court on 22 October 2018. The ground is as follows as it appears in the application verbatim:

    The decision of the second respondent Immigration Assessment Authority (the Authority) was affected by jurisdictional error because a statutory precondition for the exercise of the Authority’s review obligations under ss 473CC(1) and 473DB(1) Migration Act 1958 (the Act) had not been met:

    Particulars

    a.It was a statutory precondition to the lawful exercise oft eh Authority’s powers and obligations of review under ss 473CC and 473DB(1) of the Act that the ‘review material’ it was required to consider in its review be compiled according to s 473CB of the Act.

    b.Certain documents in possession of the third respondent Secretary engaged s 473CB(1)(c) as material that could have been considered relevant and the Secretary did not include these documents in the ‘review material’ it gave to the Authority.

    c.These documents were so critical to the review that it may be inferred the Secretary did not form an opinion on the relevance of the documents under s 473CB(1)(c).

    d.Further or in the alternative, because of the objective relevance of the documents to the review the Secretary breached s 473CB(1)(c) by not including the documents in the ‘review material’.

    e.These documents were:

    i.The Protections Obligations Determination (POD) in respect of the applicants dated 2 June 2011;

    ii.The applicants’ submissions to the POD assessing officer dated 22 April 2011;

    iii.The applicants’ submissions for the Protection Obligations Evaluation dated 21 October 2011;

    iv.Not Pressed.

    THE APPLICANTS’ SUBMISSIONS

11. The applicant conceded that they bear the onus of proof to demonstrate that the Secretary breached s 473CB(1)(c) of the Act in respect of the earlier review material in at least one of the following ways:

    a.the Secretary failed to take reasonable steps to locate the earlier review material then in its possession and control, or

    b.the Secretary failed to consider or form an opinion on the relevance of the earlier review material.

12. It was submitted that if the Secretary failed to take steps to locate the earlier review material, it follows the Secretary could not and did not consider its relevance. The Court is not required to determine a hypothetical decision that the documents were considered and found to be irrelevant would be legally unreasonable: (see; CQR17 v Minister for Immigration and Border Protection [2019] FCAFC 61).

13. The applicant submitted that the first respondent conceded that the POD submissions, interview and decision, and the pre-IPA review submissions were in the Secretary’s possession and control at the time of the referral to the Authority. Evidence from a Freedom of Information request also showed that none of the earlier review material was referred to the Authority. However, it was submitted that the first respondent has not made any concession that the Secretary breached s 473CB(1)(c) of the Act by failing to take reasonable steps to locate the earlier review material, nor has it adduced any evidence on the issue.

14. In relation to materiality of the s 473CB breaches, it was submitted that as in AUF18 it can be assumed that, in the circumstances of this case, had the Secretary located and considered the earlier review, it would have considered it to be relevant and having given it to the Authority, the Authority may well have formed a different conclusion.

15. The applicant submitted that this case is similar to EIH18 v Minister for Home Affairs [2022] FedCFamC2G 460 per Egan J where it was said at [22]

    “To rob the Authority of the opportunity to make its decision having had the benefit of reading and assessing relevant material that bolstered the chance of the applicant being found to be a witness of credit was a serious breach of the provisions of s. 473CB of the Act.”.

16. It was submitted that, relevant to the s 473CB(1)(c) breaches, the first applicant had made various claims in his April 2011 statement submitted to both the original POD and to the SHEV delegate that were then rejected by the Authority. This earlier review material is supportive of the credibility and plausibility of these claims and demonstrates a consistent adherence the claims.

17. The applicant submitted that it is of significance that the Authority did not make a finding that Feyli Kurds do not face harm or persecution in Iran.

    THE FIRST RESPONDENT’S SUBMISSIONS

18. The first respondent submitted that attention should be taken to what was noted in DCF18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 857 at [41], that:

    Section 473CB(1)(c) is principally directed at material in the Secretary’s possession or control which was not provided by the visa applicant. That material may include country information and Departmental records. However, the provision also encompasses material provided by the appellant to the decision-maker after the decision that is considered by the Secretary to be relevant to the Authority’s review.

19. It was submitted that the applicant’s case is a curious one as they complain that the Secretary did not give the Authority documents that they themselves could have provided to the delegate. Section 5AAA of the Act requires applicants to specify all particulars of their claim to be such a person and to provide sufficient evidence to establish the claim.

20. The first respondent submitted that the applicant must establish: the existence of material critical to the review which was before the Secretary, that the Secretary’s failure to give that material to the Authority constituted a breach of s 473CB(1)(c) of the Act, and that the consequence of the breach of s 473CB(1)(c) of the Act was such that the Authority's decision was affected by jurisdictional error.

21. The first respondent submitted that the contention that the Secretary failed to consider or form an opinion on the relevance of the earlier review material should be rejected. The disclosure checklist completed by the delegate of the Secretary indicates that the delegate undertook the exercising of considering “any other relevant documents that should be included in the PDF Portfolio”. The delegate noted that the IPA decision and the first applicant’s 2014 statement should be included in the referral. Accordingly, the delegate did turn their mind and conduct searches regarding what early material was available and ought to be given to the Authority.

22. It was submitted that the applicant’s case in relation to failure of the Secretary to consider or form an opinion on the relevance of the early review material does not meet the threshold legal criteria set out in CQR17 v Minister (2019) 269 FCR 367. There was an evident and intelligible justification for concluding that the document the subject of the present case were not required to be referred to the Authority, thus leading to no breach of s 473CB(1)(c) of the Act.

23. The first respondent submitted that, even if there was a breach of s 473CB(1)(c) of the Act, which is not conceded, the breach was not material such to arise to jurisdictional error. The provision of the earlier material could not realistically have resulted in a different decision (see; Minister for Immigration, Citizenship and Multicultural Services v SZMTA (2019) 264 CLR 421 at [45]) and the complaints ultimately devolve into a challenge to the merits of the decision.

24. It was submitted that the applicant has not adduced a transcript of the SHEV interview and so there is no way for the Court to assess the premise of their contention that much of the earlier material provided a fuller account of the first applicant’s claims.

25. In oral submissions the legal representative took the Court through each of the findings of the Authority and submitted that in each case, the excluded material would not have altered the outcome. As a result, the threshold for materiality was not reached.

    CONSIDERATION

26. This Court has recently considered two matters where claims of jurisdictional error were based around the operation of s 473CB of the Act. In AWO19 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 27 (“AWO19”), the following was said at [70]-[73]:

    70.Section 473CB(1)(c) of the Act requires the Secretary to provide any material that is in the Secretary’s possession or control and is considered by the Secretary to be relevant to the review. Subject to a materiality being established, an error by the Secretary under s 473CB(1) of the Act will result in jurisdictional error: (see; EVS17 v Minister for Immigration and Border Protection [2019] FCAFC 20 at [42]).

    71.Material that is “relevant to the review” is material “capable directly or direct indirectly of rationally affecting the assessment of the probability of the existence of some fact about which the Authority might be required to make a finding”: (see; ABT17 v Minister for Immigration and Border Protection [2020] HCA34 at [16]).

    72.It was submitted that the threshold test for what might constitute evidence that is relevant, has been variously described as “undemanding”, “quite low”, a “low one” and “relatively low”: (see; Daya v Cx Reinsure Co Ltd [2012] NSWSC 1616 at [16]; Shanker v R [2018] VSCA 94 at [95]). What is relevant is a broad concept. In CQR17 v Minister for Immigration and Border Protection [2019] FCAFC 61 at [105] the following was said per Derrington J:

    [105] As the obligation of Immigration Assessment Authority is to conduct a de novo hearing to consider the application for a protection visa afresh, all material which relates to every aspect of the visa application is necessarily relevant.  Even where a delegate has decided a point in favour of the visa applicant, the material in the possession of the Secretary which tends to prove or disprove that issue can be said to be relevant to the review as the Immigration Assessment Authority is obliged to reach its own conclusions on each matter.  Indeed, the relevant material before the Immigration Assessment Authority may include information which was not considered by the delegate but which is in the possession of the Secretary at the time of the referral.

    73.It was submitted that where the Secretary does not carry out lawfully the duty under s 473CB(1)(c) of the Act, this establishes a breach of the Act.  However, the next question is whether or not such a breach is material. Materiality requires the applicant to establish “that there is a realistic possibility that the decision in fact made could have been different had the error not occurred”: (see; ANJ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1277 at [36] (“ANJ19”)).

27. In AWO19, the Court found in favour of the applicant. The applicant’s brother had also made a protection application. In his file were pictures that purportedly showed serious injuries that were claimed were inflicted on the applicant’s father. The fact that the injuries were occasioned was a matter in issue before the Authority.

28. In CCM18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 158 at [36], the Court found against the applicant on the basis that at its highest, the applicant speculated that there would be material in his brother’s file, who had also sought a Protection visa, which might have assisted a particular assertion made by the applicant. The material, it was said that should have been provided, was not identified with any degree of particularity.

29. In the current matter, the material that it is complained should have been provided to the Authority is first the POD interview with the applicant from 2011. The second document is a statement provided by the applicant in respect of the POD application. The third document is the applicant’s advisors written submissions on the applicant’s claim for protection under the POD scheme.

30. Given that this material directly related to the applicant and his claims for protection (albeit under the POD statutory scheme), the Court is first satisfied that it was material capable of directly or rationally affecting the assessment of some fact about which the Authority might be required to make a finding. It was material, albeit earlier in time than the SHEV application, which could show a consistency or inconsistency in the applicant’s claims. Further, as submitted by Counsel for the applicant, that material included a greater granularity as regards some of his claims. Noting that the threshold test for what might constitute relevant evidence is undemanding, quite low or relatively low, the Court is satisfied that this material was relevant to the review. Further, the Court is satisfied that this material was in the possession of the Secretary as at the time of the referral to the Authority. In the Court’s view, the failure to provide this material constitutes a breach of the obligation created under s 473CB of the Act and amounts to jurisdictional error.

31. Having determined that jurisdictional error exists due to the failure to provide the documents set out above, the first respondent submitted that the failure is not material in that it could not have resulted realistically in a different outcome had the breach not occurred (see; ANJ19).

32. The applicant submitted that had the Authority had access to the earlier review material, it may well have come to a different conclusion on the first applicant’s credibility in relation to key aspects of his claims.  Reliance was placed on EIH18 v Minister for Home Affairs (above cited) on the basis that the earlier POD material would have shown a consistency in the applicant’s claims such that the Authority may have determined he was a witness of credit.  The 2011 claims included that he was a stateless Feyli Kurd who was registered as a refugee, and that his two children would also face discrimination as Feyli Kurds.  Critical to the applicant’s claims was his identity as a stateless Feyli Kurd.  The POD accepted this basic claim, albeit with doubts.  The Authority however rejected this claim instead found the applicant was an Arab with Iranian citizenship. 

33. It was upon this finding, that the other findings of the Authority cascaded such that the Authority found that the applicant’s claims were not made out such that the applicant did not qualify for a Protection visa.  The applicant submitted that this finding was based on his responses in the SHEV interview which occurred in October 2007.  His POD interview was conducted in April 2011 and the submitted the applicant’s memory at the time allowed him to provide greater detail as to the various matters that were put to him.  It was also submitted by the applicant, that the relevant country information that was used by the Authority from 2016, was much later than that used in the POD determination and it may well be that there had been changes in the country information during that time which affected the consideration of the applicant’s claims.  No such material has been put before the Court to show these differences. The Court does not accept this submission in the absence of any evidence.

34. Whilst accepting that it may well be the case that some of the conclusions reached by the Authority might be the same in the absence of the POD material in respect of the applicant’s capacity to work, his access to healthcare, the rights of children with Iranian mother and the findings in respect of how the applicant managed to leave Iran what he claims was a valid passport obtained illegally, the Court is left with considerable unease that had the POD material been available to the Authority, that the Authority might reasonably have made a different determination in respect of some of the matters it relied upon.

1. Given the central crux of the Authority’s finding was that the applicant was Awahzi Arab as compared to a Feyli Kurd, and that this was a different finding to that under the POD scheme, the Court cannot be satisfied that the provision of this information, in breach of s 473CB of the Act, could not have made a difference to the overall outcome.

   CONCLUSION

2. In these circumstances, the Court finds in favour of the applicant, and grants the relief sought in the Amended Initiating Application.

I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys.

Deputy Associate:

Dated:       22 March 2023