CNF18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 446
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CNF18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 446
File number: SYG 1372 of 2018 Judgment of: JUDGE LAING Date of judgment: 31 May 2023 Catchwords: MIGRATION – application for judicial review of a decision by the Immigration Assessment Authority not to grant Safe Haven Enterprise (Class XE) (Subclass 790) visas – whether the Authority erred in its application of s 473DD of the Act – whether the Authority failed to consider an integer of the applicants’ claims – whether the Authority made findings that were illogical, unreasonable or otherwise closed – whether the Secretary’s referral of material under s 473CB of the Act was affected by legal unreasonableness – whether the Authority erred by not inviting further information in accordance with s 473DC of the Act – application succeeds Legislation: Migration Act 1958 (Cth) ss 473DD, 473DC, 473CB 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
CDZ16 v Minister for Immigration and Border Protection [2017] FCA 967
CJD18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 212
CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 268 CLR 76
CQR17 v Minister for Immigration and Border Protection [2019] FCAFC 61; (2019) 269 FCR 367
DIN19 v Minister for Immigration & Anor [2021] FCCA 1
DOY21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 163
DPI17 v Minister for Home Affairs [2019] FCAFC 43; (2019) 269 FCR 134
EOJ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 2
GJM18 v Minister for Immigration & Anor [2020] FCCA 632
Minister for Immigration and Border Protection v CED16 [2020] HCA 24; (2020) 94 ALJR 706
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99
SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; (2012) 202 FCR 1
Division: Division 2 General Federal Law Number of paragraphs: 95 Dates of hearing: 27 March, 12 May 2023 Place: Sydney Counsel for the Applicants: Mr G Schipp Solicitors for the Applicants: Allens Counsel for the Respondents: Mr G Johnson Solicitors for the Respondents: Sparke Helmore Lawyers ORDERS
SYG 1372 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CNF18
First ApplicantCNG18
Second ApplicantCNH18 (and another named in the Schedule)
Third ApplicantAND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First RespondentIMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
JUDGE LAING
DATE OF ORDER:
31 May 2023
THE COURT ORDERS THAT:
1.A writ of certiorari issue bringing the decision of the second respondent dated 20 April 2018 into this Court and quashing it.
2.A writ of mandamus issue directing the second respondent to re-determine the review 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:
Before the Court is an application for judicial review of a decision of the Immigration Assessment Authority (Authority). The Authority affirmed a decision of a delegate (Delegate) of the first respondent (Minister) not to grant the applicants Safe Haven Enterprise (Class XE) (Subclass 790) visas (protection visas).
BACKGROUND
The first applicant (Applicant) in these proceedings is a citizen of Iran. He arrived in Australia as an unauthorised maritime arrival with his family on 20 June 2013.
On 28 February 2017, the applicants applied for protection visas.
The Delegate refused the application on 23 November 2017. The matter was then referred to the Authority for review.
On 20 April 2018, the Authority affirmed the Delegate’s decision.
THE AUTHORITY’S DECISION
The Authority stated that it had considered the material referred to it under s 473CB of the Migration Act 1958 (Cth) (Act). The Authority observed that it had received a number of further documents on behalf of the applicants:
5. The documents in question are as follows:
a) An undated petition signed by 89 people in support of the family’s claims for protection;
b) A letter dated 16 December 2017 from [a Church attendee] regarding the family’s activities in the church;
c) A letter date 16 December 2017 from Brother [redacted] regarding the applicant wife and her presentations at various events;
d) An undated letter of support of the family from [a Church volunteer];
e) Letter dated 16 August 2017 from Pastor [redacted] regarding the applicant’s activities in the church;
f) Letter dated 13 December 2017 from Pastor [redacted] addressing the delegate’s findings in the decision of the applicant;
g) Letter dated 13 December 2017 from Pastor [redacted] addressing the delegate’s findings in the decision of the applicant’s mother-in-law;
h) Letter dated 13 December 2017 from Pastor [redacted] addressing the delegate’s findings in the decision of the applicant’s sister-in-law;
i) Letters of complaint from [the applicants’ agent] to the then Department of Immigration and Border Protection (now part of the Department of Home Affairs) (“the Department”) dated 28 August 2017, 29 August 2017, 31 August 2017 (2) and 1 September 2017 regarding the conduct of the delegate during the interviews she conducted with the applicant and his sister-in-law on 24 August 2017;
j) Response from the Department to [the applicants’ agent] regarding these complaints, dated 12 September 2017.
As the Authority’s reasoning in this regard is the subject of extensive challenge in these proceedings, it is appropriate to set it out in some detail:
6. In relation to documents (a), (c), (d), (e), (g), (h), (i) and (j) I am not satisfied that they contain any information that may be relevant to the applicants’ review. Documents (a) and (d) are general letters of support attesting that the family are active members of the [Church] and the Christian community. Document (c) outlines presentations given by the applicant wife describing her life experiences to interested groups. Documents (g) and (h) relate to members of the applicant’s family other than the applicant. Documents (i) and (j) relate to [the applicants’ agent]’s complaint against the delegate, in particular that she showed lack of knowledge, interview skills, migration law knowledge, and honesty during the PV interview and in the assessment of the applicant’s claims. The delegate’s alleged conduct is not relevant to the matter before me. These documents are therefore not new information for the purposes of s.473DC.
7. The letter from Pastor [redacted] at (e) sets out the details of when the applicant first attended the [Church], when he was baptised, his present attendance and the various subjects he has completed as part of his bible studies and related courses. It predates the delegate’s decision, and is addressed to the Department, but does not appear to have been provided at that time. Equivalent letters were also provided by [the applicants’ agent] for the applicant’s mother-in-law and sister-in-law, however as these had already been provided to the delegate they are not new information and I have not included them in the list above. [The applicants’ agent] has provided no reasons why Pastor [redacted]’s letter relating to the applicant was not or could not have been provided to the delegate, particularly as the matter of the applicant’s church attendance was squarely in issue before the delegate. I am however satisfied that it comprises credible personal information which may have affected the consideration of the applicant’s claims: s.473DD(b)(ii). In considering whether there are exceptional circumstances which justify consideration of the new information, this letter is independent support of the applicant’s central contention that he is now a Christian and contains detailed documentary evidence of his activities as a member of the [Church]. I conclude that [the applicant’s agent]’s intention was to provide this to the delegate, as he did for the applicant’s other family members, but it has not made its way into the review material. I have had regard to the new information.
8.Considering the letters at (b) and (f), as they postdate the delegate’s decision they could not have been provided to the delegate, so s.473DD(b)(i) is met. It is not in dispute that the applicant has been attending the [Church] since mid-2015 and Pastor [redacted] has provided a detailed account of his activities dated 16 August 2017, which now forms part of the review material. [The] letter at (b) also contains an overview of the baptism dates, church and bible study attendance of the various family members, including the applicant. This contains the new information that the applicant’s son was “saved” on 3 September 2017 and baptized on 8 November 2017. There is no information in other documents relating to the applicant’s son and he has not made any claims of his own. As the remaining dates and attendances have already been described in detail by Pastor [redacted] and are not in dispute I am not satisfied that there are exceptional circumstances which justify considering this letter. Pastor [redacted]’s letter at (f) addresses the delegate’s findings in what he has described as a critique of and objection to the decision. He essentially restates the applicant’s claims relating to her conversion to Christianity and what will happen to her on return to Iran. The letter includes various assertions on the motivation of the delegate, her conduct and speculation as to her own religious beliefs. These matters are irrelevant to the matter before me. Overall, I am not satisfied that there are exceptional circumstances which justify consideration of this letter.
9. On 19 April 2018 the IAA received a further document from [the applicants’ agent] on behalf of the applicant. This document is a report [redacted]. Due to the date of the report I am satisfied that it could not have been provided to the delegate. It notes that the applicant was part of an epidemiological study into psychological functioning [redacted]. It also notes that the applicant has reported symptoms of PTSD and depression that place him within the top 2% of symptom severity reported in the study sample. The report concludes that the symptoms were not gathered as part of a clinical diagnostic assessment and indeed I note that there is no diagnosis contained. The authors are of the view that the applicant’s psychological state is likely affect to his ability to answer questions or to effectively present his case and opine that consideration should be given to given to treating the applicant as a psychologically vulnerable applicant. This is based on his self-reported symptoms. In considering whether exceptional circumstances justify considering the new information, I note that the applicant was represented before the delegate and there has been no suggestion to date that he has been unable to present his case. There is no other medical information before me. I am not satisfied that exceptional circumstances justify consideration of the new information.
The Authority accepted certain details regarding the applicants’ nationality and family background. The Authority accepted that the children had attended Catholic schools (at [12]).
The Authority accepted that the Applicant was fined on two occasions for cutting women’s hair and that the salon where he worked had closed for a period. However, the Authority did not accept that his certificate was annulled or that he was indefinitely disqualified from practising hairdressing. In this regard, the Authority considered that the Applicant had given inconsistent evidence regarding the timing of this claimed event. The Authority also observed that the Applicant had not provided any evidence of his disqualification or documents relating to a court case with which he had claimed to have been involved (at [13]-[14]).
Having regard to the Applicant’s identification as a Shia Muslim and advice that he was fasting at the time of his arrival interview, the Authority found that the Applicant had continued to practise his Shia faith until after his arrival in Australia. This caused the Authority some concerns regarding the credibility of the Applicant’s claims (at [15]).
The Authority did not accept that the Applicant’s family had left Iran due to the second applicant’s conversion to Christianity or any perception that she had converted. After identifying various inconsistencies in the evidence before it, the Authority did not accept that the Applicant was a witness of the truth. The Authority accepted that the Applicant and the second applicant had participated in various Church activities since 2015. However, the Authority found that this was solely for the purposes of furthering their claims to protection (at [16]-[23]).
The Authority was not satisfied that the Applicant could be identified by the Iranian authorities due to his online activities, in the absence of credible evidence to this effect. It did not accept the second applicant’s claims regarding threats her family were alleged to have received, which it found were a fabrication (at [21]-[22]).
The Authority did not accept that the applicants had participated in Christian activities prior to leaving Iran, or that they would have any interest in participating in such activities upon return. The Authority did not accept that there was a real risk that the applicants’ involvement with the Church in Australia would become known to the authorities. The Authority also did not accept that the Applicant would return to cutting the hair of female non-family members or that he or his family would otherwise face a real chance of suffering harm of any kind upon return (at [35]-[36]).
Having regard to the above, the Authority found that the applicants were unable to meet the criteria for the grant of the protection visas (at [32]-[39]).
PROCEEDINGS BEFORE THIS COURT
The applicants commenced the current proceedings through an application filed on 16 May 2018. The applicants ultimately relied upon a second amended application filed with submissions on 24 March 2023, containing the following grounds (errors in original):
1. The Second Respondent erred in failing to admit and consider documents provided to it by the Applicant, pursuant to s473DD, by taking an erroreously narrow view of “exceptional circumstances” or otherwise,
Particulars
A. being:
a. The document listed at paragraph 5(a) of the Second Respondent's reasons (Court Book pages 295-302), being a Petition (undated);
b. The document listed at paragraph 5(b) of the Second Respondent's reasons (Court Book page 303), being a letter from [a Church attendee] dated 16 December 2017;
c. The document listed at paragraph 5(c) of the Second Respondent's reasons (Court Book page 304), being a letter from Brother [redacted] dated 16 December 2017;
d. The document listed at paragraph 5(d) of the Second Respondents reasons (Court Book page 305), being a letter from [a Church volunteer] (undated);…
e. The documents listed at paragraph 5(i) of the Second Respondent's reasons (Court Book pages 306-322), being letters of complaint from [the applicants’ agent] to the Department of Immigration and Border Protection (Department) dated 28 August 2017, 29 August 2017, 31 August 2017 (2) and 1 September 2017 and a response from the Department to [the applicants’ agent] regarding these complaints dated 12 September 2017;
f. The documents listed at paragraphs 5(f)-(h) of the Second Resppondent's Reasons (Court Book pages 326-328), being three letters from Pastor [redacted] each dated 13 December 2017;
g. The document listed at paragraph 9 of the Second Respondent’s reasons and found at Court Book 336-337, being a report of [redacted], when such a document was relevant, inter alia, as to the Applicant’s vulnerability.
2.The Second Respondent fell into jurisdictional error by failing to consider the claims or a component integer thereof made by the Applicants.
Particulars
The Second Respondent failed to consider the First Applicant’s claim of fear of serious harm in that any ordinary person may threaten and inflict violence to the Applicants as apostates, in circumstances where the government of Iran is not willing or able to offer protection against that violence (Court Book pages 215-216).
3. The Second Respondent fell into jurisdictional error by making findings of fact irrationally, illogically or unreasonably, on which there was no evidence supporting that finding, by misapprehending the evidence, without proper, genuine and realistic consideration and without reasoning.
Particulars
a.The Second Respondent’s erred in finding that the First Applicant was a practicing Muslim by drawing an inference that he was fasting in observance of Ramadan where there was no evidence for the reasons behind the First Applicant’s decision to fast, and no opportunity to respond to the allegation.
b.The Second Respondent erred in finding that the First Applicant was not disqualified from hairdressing, by failing to have regard to Country Information within its possession, and misconceiving the evidence before it.
c.The Second Respondent erred in finding that the Applicants’ conversion to Christianity was not genuine, by failing to take into account relevant matters, such as the nature and depth of each Applicants understanding, and in the event that s5J(6) applied, failed to consider whether there was a concurrent purpose to the conversion.
4. The Second Respondent was deprived of jurisdiction due to the failure of the Secretary to provide all relevant information under s473CB, being the departmental files and decisions in regard to the Applicants' family members.
Particulars
The Secretary failed to provide to the Second Respondent the files in respect of the Second Applicant's mother's application for a protection visa which resulted in the decision dated 5 December 2019 (IAA reference [redacted]).
5. The Second Respondent acted unreasonably in not inviting the Second Applicant, or in not considering inviting the Second Applicant, to give further information under s473DC.
Ground 1
Ground 1 contended that the Authority misapplied s 473DD of the Act, by taking an erroneously narrow view of the term “exceptional circumstances” or otherwise. The complaint in particular (c) was not pressed.
However, a number of particulars relied upon by the applicants took issue with the Authority’s finding at [6] of its decision that it was not satisfied that various documents contained any information “that may be relevant to the applicants’ review”. The Authority therefore did not accept that those documents contained “new information”, with the result that it did not purport to assess them against s 473DD of the Act: see ss 473BB and 473DC(1) of the Act. The question in relation to those documents, rather, is whether it was open for the Authority to reason in this manner.
The documents referred to at [6] of the Authority’s decision
Section 473DC defines “new information” by reference to documents or information “the Authority considers may be relevant”. Relevance within this context is used in the sense that it might be “capable directly or indirectly of rationally affecting assessment of the probability of the existence of some fact about which the Authority might be required to make a finding in the conduct of its review of the referred decision”: Minister for Immigration and Border Protection v CED16 [2020] HCA 24; (2020) 94 ALJR 706 at [23] per Gageler, Keane, Nettle and Gordon JJ.
The question of relevance is to be determined by the Authority. However, as was accepted by the Minister, that opinion must be must be formed reasonably and on a correct understanding of the law: see CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 268 CLR 76 at [6] per Kiefel CJ and Gageler J.
I accept the Minister’s submission that the “usual caveats of judicial supervision of factual findings” apply in assessing the reasonableness of the Authority’s findings in this regard: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS) at [124], [130]-[131] per Crennan J and Bell J; Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [148] per Robertson J; SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; (2012) 202 FCR 1 at [84] per McKerracher J.
Those caveats impose a high threshold for the applicants to meet in the present case. It is not for the Court to determine for itself whether the information is or may be relevant. The question for the Court is whether the Authority’s assessment was reasonably open to it on the material that was before it: CDZ16 v Minister for Immigration and Border Protection [2017] FCA 967 (CDZ16) at [10] per Logan J.
That is not to say that the Authority’s findings regarding relevance are impervious to review. Determinations of relevance may expose relevant error where the decision maker’s reasoning is devoid of an intelligible justification, or is otherwise illogical or unreasonable: see for example CQR17 v Minister for Immigration and Border Protection [2019] FCAFC 61; (2019) 269 FCR 367 (CQR17) at [36] to [40] per Jagot J; SZMDS at [135] per Crennan and Bell JJ. However, the thresholds accompanying such grounds are necessarily high. The fact that a Court may take a different view of relevance is insufficient.
The first documents with which the applicants took issue regarding [6] of the Authority’s decision were described at 5(a) and 5(d) of the Authority’s decision. The Authority categorised those documents as “general letters of support attesting that the family are active members” of a particular Church community. The applicants contended that these documents, one of which was a petition, were more than mere letters of support but attested to belief in the sincerity of certain of the applicants’ involvement in the Christian faith and Church. However, such attestation was capable of being regarded as “general letters of support”. Considering the brevity of the documents, and the Authority’s possession of other more detailed letters supporting the involvement of the applicants’ family with the religion and the Church, I am not persuaded that it was relevantly closed to the Authority to have not been satisfied that these particular documents were capable of affecting the assessment that it was required to undertake. As was made clear in CDZ16 at [10], the potential for the Court to have come to a different view is not the test.
The next documents that were the subject of challenge in relation to [6] of the Authority’s decision were described at [5(g)-(h)] of the decision. Those documents were letters from a Pastor of a Church attended by the family. The letters, which are similar in content, provided “critique and objection” to the refusal of protection visa applications in respect of the Applicant’s mother-in-law and sister-in-law. The letters provided some content regarding their involvement with the Church (such as evangelising activities) and also regarding what was said to have been the experience of one Church member upon return to Iran who was discovered with religious documents.
The Authority was not satisfied that these documents contained information that may be relevant. The reason given was that they “relate[d] to members of the applicant’s family other than the applicant” (at [6]). Divorced of certain context, this finding may have been regarded as capable of demonstrating relevant error. I accept the applicants’ submission that there was a considerable level of overlap between the applicants’ claims and those of the second applicant’s family members. The extent of this overlap is considered further in relation to ground 4 below. In relation to ground 1, however, it suffices to observe that the Applicant and the second applicant claimed to have been influenced in their conversion to Christianity by members of the second applicant’s family. This was said to have occurred in connection with the conversion of the second applicant’s mother and sister. In these circumstances, it is difficult to see how a conclusion could have been reached other than that the religious beliefs and practices of the Applicant’s sister and mother-in-law were potentially relevant to those claims.
However, there were already other letters before the Authority from the Pastor regarding his views on the religious beliefs and practices of those family members. Those letters, which were considerably more detailed in this regard, were not regarded as new information as they had been provided to the Delegate (at [7]). When the content of those letters is considered against the content of the letters referred to at [6], it becomes apparent that the Authority did not accept the letters at [6] as potentially relevant to the matters that it had to decide because their additional content was limited and largely critiqued decisions to refuse applications in respect of other family members that were not the subject of its review. I am not persuaded that this reasoning was relevantly closed to the Authority.
The last of the documents referred to at [6] of the Authority’s decision with which issue was taken were the documents referred to at [5(i)-(j)]. Those documents contained various letters of complaint from the applicants’ agent regarding the conduct of interviews with his clients (including the Applicant) and the Department’s response. In oral submissions, the applicants’ Counsel accepted that the agent’s opinions about the Delegate’s conduct (as distinct from the conduct itself) were capable of being regarded as non-relevant. However, it was submitted that the complaint letters also contained information about the Applicant’s responses that went to psychological vulnerability. This included references to the Applicant exhibiting “nervous smiles, becoming shaky and tense, and uncomfortable” and looking at the agent “with entreaty” (CB 320).
Again, some context assists in understanding why the Authority dealt with this material in the manner that it did. These references in the letters were made in the context of a number of quite wildly hyperbolic attacks against the Delegate’s conduct of the interview. To give some flavour of this, the agent contended that the Delegate had “deliberately tried to confuse [his] client, and fluster him in order to make him give wrong answers” (CB 321). The basis of this was said to have been the Delegate’s querying of where a particular suburb was located in Sydney. Within the context of this apparently very offensive question, the Delegate was described as “acting like a child who wins in a child game” (CB 320). Other parts of the correspondence from the agent variously describe the Delegate as “sick-minded” and “evil”, and make the suggestion that she was not “sane” (CB332-333).
Having regard to the broader content of the letters, I am not persuaded that it was relevantly closed to the Authority to have regarded the agent’s impressions of what occurred in the interview as being incapable of rationally bearing upon its assessment, when considered in relation to the other material that was available to the Authority. Whilst another decision maker may have considered the letters capable of meeting the relatively low threshold for relevance, that is an insufficient basis for finding relevant error.
Section 473DD
The applicants also took issue with various assessments that the Authority undertook in applying s 473DD of the Act, by which it found that the requirement of “exceptional circumstances” was not satisfied. In this regard, s 473DD of the Act provided:
MIGRATION ACT 1958 - SECT 473DD
Considering new information in exceptional circumstances
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a)the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i)was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii)is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.
In Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217 at [30] per Gageler, Keane and Nettle JJ (footnotes omitted) it was stated:
Quite what will amount to exceptional circumstances is inherently incapable of exhaustive statement. The word “exceptional”, in such a context, is not a term of art but “an ordinary, familiar English adjective”: “[t]o be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered”.
The applicants took issue with the Authority’s finding at [8] that exceptional circumstances did not justify consideration of the letter dated 16 December 2017 which was referred to at [5(b)] of the Authority’s decision. This was from a fellow Church attendee who gave evidence regarding various members of the Applicant’s family’s involvement with the Church and Christian faith. In concluding that the requirement of exceptional circumstances was not met, the Authority observed that it was not in dispute that the Applicant had been attending the Church since mid-2015. The Pastor had already provided a detailed account of his activities, which had been accepted as part of the review material (following exceptional circumstances being found in relation to that account). Whilst the 16 December 2017 letter also provided information regarding the Applicant’s son’s involvement, the son had not made his own claims and there was limited information relating to him.
The applicants’ Counsel submitted at the hearing that this letter should have been found to have involved “the same exceptional circumstances” as those found regarding the Pastor’s letter referred to at [5(e)] of the Authority’s decision. However, I am not persuaded that it was closed to the Authority to reason that it had sufficient material before it that rendered this additional letter incapable of meeting the exceptional circumstances criterion. The availability of other, similar material was logically capable of informing the Authority’s assessment in this regard. Whilst the documents at [5(b)] and [5(e)] were not identical, they were directed towards similar ends (i.e. describing the family’s involvement with the Church and what had been understood by the Church community as genuine exhibitions of faith).
The applicants also took issue with the Authority’s finding that exceptional circumstances did not justify consideration of another letter from the Pastor, which was referred to at [5(f)] of the Authority’s decision. The Authority observed that this document provided what was said to have been a critique of the Delegate’s decision and restated claims regarding Christianity. The Authority found that the letter’s assertions about the Delegate’s motivation and conduct, and speculation as to her religious beliefs, were irrelevant. Overall, the Authority found that exceptional circumstances did not justify consideration of the letter (at [8]).
The applicants submitted that there were parts of this letter that were relevant and that the Authority did not properly engage with those parts. Relevant parts were said to have included references to the Applicant’s “regular conversations with many people about Christ”, evangelising and attending Church and Bible classes. However, this was the effect of information contained in the Pastor’s other letter in respect of which the Authority had found exceptional circumstances. It was open to the Authority within this context to find that the additional information effectively restated the Applicant’s claims regarding religion and to have otherwise contained irrelevant commentary and speculation. Given this and the other material that was available to the Authority, I am not persuaded that it was closed to the Authority to reason that there were no exceptional circumstances justifying consideration of the letter.
The last document with which the applicants took issue in relation to the Authority’s application of s 473DD concerned a report from a School of Psychiatry noting that the Applicant was a part of an epidemiological study into psychological functioning among certain members of the community. The Authority noted that the report stated that the Applicant had reported symptoms of PTSD and depression that placed him within the top 2% of severity reported in the study sample. The authors expressed the view that the Applicant’s psychological state was likely to affect his ability to answer questions or effectively present his case and suggested that consideration be given to treating him as a psychologically vulnerable applicant.
The Authority observed that this report was based on self-reported symptoms, that the symptoms were not gathered as part of a clinical diagnostic assessment and there was “no diagnosis contained”. The Authority considered that the Applicant had been represented before the Delegate, that there was no suggestion that he had been unable to present his case and that there was no other medical evidence before it. The Authority was not satisfied that exceptional circumstances justified consideration of the information (at [9]).
The applicants took issue with various parts of this analysis. Their Counsel observed that the Applicant’s reported symptoms were stated in the report to have been “consistent with a diagnosis of PTSD and depression”. That may be so, but I am not persuaded that it was closed to the Authority to have considered that report of symptoms “consistent with a diagnosis” was not the same as a diagnosis. The applicants noted that the Applicant’s psychological symptoms were necessarily “self-reported”. However, this does not mean that it was closed to the Authority to have regard to this feature of the evidence indicating dependence upon the Applicant’s account.
The applicants submitted that psychological vulnerability could have been relevant in a number of ways to the applicants’ case, and not only to his ability to present it. Again, this may be so, but it does not mean that it was closed to the Authority to reason that the limitations in the report, within the context of the other evidence before it, meant that it was not satisfied that exceptional circumstances justified its consideration.
The Authority’s language that there was “no suggestion” that the Applicant had been unable to present his case may seem peculiar, given the complaints that had been made by his agent. However, I have found above that it was open to the Authority to have regarded the complaints made in this regard, within context, to have been lacking in probative force. What the Authority appears to have been contemplating at [9] is the lack of other medical evidence before it indicating that the Applicant had been unable to present his case.
Overall, I am not persuaded that it has been demonstrated that the Authority adopted an erroneously narrow view of “exceptional circumstances” or otherwise reasoned in a manner that was closed to it in its application of s 473DD of the Act. Accordingly, ground 1 is unable to succeed.
Ground 2
Ground 2 contended that the Authority failed to consider the Applicant’s claim that any ordinary person may threaten and inflict violence upon the applicants as apostates, in circumstances where the government of Iran was not willing or able to offer protection against that violence. A claim to this effect was made at CB 215-216.
In response to this ground, the Minister relied upon [28]-[29] of the Authority’s reasoning which was as follows (footnotes omitted):
28. The applicant has claimed that he no longer followed Islam, for some 20 years prior to leaving Iran. I have found that he continued to practice Islam until his arrival in Australia at least. While abandonment of Islam is viewed as apostasy, and is punishable by death or other forms of harm, DFAT assesses it is unlikely that individuals would be prosecuted on such charges, or that the government would know that someone had abandoned Islam unless they publicly declared it.5 I am not satisfied that the applicant would publicly declare that he had abandoned Islam on return to Iran or has any interest in doing so.
29. The delegate in her assessment found that the applicant was a non-practising Muslim. The country information suggests that many Iranians have moved away from “institutionalised religion” and non-practising Muslims form a large part of the population of Iranian cities, leading normal daily lives and rarely being pressured to observe Islamic precepts. Many Iranians do not regularly attend mosque or Friday prayers, even if they hold strong religious beliefs.6 The country information indicates that non-observance of Islam would only cause problems in certain situations, such as refusing to fast during Ramadan. DFAT assesses that it is unlikely that the government would monitor religious observance, such as attendance at mosque, and says that it is generally unlikely that it would become known that a person was no longer faithful to Islam unless they manifested their new faith.7 I am satisfied that the applicant would not face punishment from the authorities on return even if he were known not to observe Islam.
In oral submissions, the applicants’ Counsel submitted that those paragraphs were confined to dealing with the risk of punishment from the authorities and did not deal with the risk to the applicants more generally.
However, I accept the Minister’s submission that in those paragraphs, the Authority rejected more generally that the Applicant would publicly declare that he had abandoned Islam or that he had any interest in doing so. The Authority also concluded that the Applicant would not be at relevant risk as a non-practising Muslim.
I accept that these findings, together with the Authority’s more general findings that the applicants did not meet the criteria for protection, were sufficient to dispose of the claims to face harm more generally from the community. This is because the Authority did not accept that any abandonment of Islam would be publicised within the community, or otherwise cause the family problems due to any lack of religious observance.
For these reasons, ground 2 is unable to succeed.
Ground 3
Ground 3 sought to impugn a number of aspects of the Authority’s reasoning.
Firstly, the applicants contended that the Authority erred in finding that the Applicant was a practicing Muslim by drawing an inference that he was fasting in observance of Ramadan where there was no evidence for the reasons behind the Applicant’s decision to fast, and no opportunity to respond to the allegation.
However, I accept the Minister’s submission that it was open for the Authority to have drawn an inference at [15] of its decision that the Applicant was fasting in July 2013 because it was Ramadan. This was in circumstances where the Applicant had identified at the time in his arrival interview as a Shia Muslim and, when asked if he had any cultural or religious considerations that the Department should be aware of, had responded that he was fasting. It was available to the Authority to infer from these matters that the Applicant continued to practise his Shia faith until after his arrival in Australia (at [15]).
The second aspect of the Authority’s reasoning with which issue was taken concerned its non-acceptance that the Applicant “had his certificate annulled or was indefinitely disqualified from practising hairdressing” (at [13]-[14] and [27]).
In this regard, the applicants drew attention to information in the Delegate’s decision indicating that violating gender rules in hairdressing may result in penalties ranging from warnings, fines, and loss of licences or closure of salons (CB 247). Issue was taken with the Authority’s consideration at [27] that there was no country information that “directly addresses the [Applicant’s] situation”. However, the Authority did have regard to country information indicating that salons that violated gender rules may be closed. It accepted that the Applicant may have been fined. I am not persuaded that the Authority was obliged to find that the country information before it “directly” addressed the Applicant’s situation, as distinct from having some bearing upon it. In any event, the Authority additionally found that any punishment in that regard was pursuant to a law of general application and would not result in any risk of harm capable of meeting the criteria for the protection visa (at [27] and [36]).
The Authority also did not reason that the applicants’ claims could not be accepted because it was not satisfied that disqualification occurred in Iran. Rather, the Authority stated that it had not accepted the Applicant’s claim to have had his certificate annulled “[d]ue to” an inconsistency that it had identified in his evidence regarding disqualification and an associated court case (rather than any perceived limitations in the country information). At [14], the Authority observed that the Applicant’s arrival interview and protection visa application indicated May 2013 as the period when these events occurred. However, in his statement of claims the Applicant stated that “[a]fter” his certificate was annulled he had to work “underground” and that this occurred around the time he discovered his father-in-law’s conversion to Christianity, which was well before 2011 (rather than May 2013).
The applicants took issue with this reasoning. Their Counsel submitted that the Authority had unfairly regarded the claimed annulment of the certificate and hearing about the father-in-law’s conversion as sequential events, whereas the paragraph of the statement relied upon by the Authority said it was “during this time” that the Applicant had heard about the father-in-law’s conversion (rather than after).
I am not persuaded that it was closed to the Authority to have interpreted this evidence as sequential. On the page of the statement in question, the Applicant refers to being disqualified from hairdressing, “[a]fter” which he had to work underground. The statement then refers to difficulties that the Applicant claimed to have consequentially faced, including separation from his wife, before stating that it was “during this time” that he heard about his father-in-law’s conversion. This gives, arguably, a sequential impression. In any event, the Authority’s concern appears to have been that parts of the Applicant’s evidence suggested his disqualification had occurred around May 2013, whereas his statement indicated that it coincided with events from some years earlier. That inconsistency was present whether the events before 2011 were interpreted as having been claimed to have occurred during or after the events claimed to have occurred in 2013.
The applicants also contended that it was unreasonable for the Authority at [14] to have observed that the Applicant had “not provided any evidence of his disqualification or any documents relating to a court case”. It was submitted that the Applicant never said that there was a court case over his qualification, but rather that he was taken to court and fined for cutting women’s hair.
I accept the Minister’s submission that this argument is misconceived. The Applicant claimed to have been taken to court and to have been fined and disqualified from hairdressing (CB 193). It was not unreasonable for the Authority to have observed that he had provided no evidence of either his disqualification or the court attendance that he claimed had occurred.
The next aspect of the Authority’s reasoning that the applicants challenged under this ground concerned its finding that the applicants’ conversion to Christianity was not genuine. The applicants contended that the Authority failed to take into account the nature and depth of each applicants’ understanding of Christianity, and whether there may have been at least a concurrent purpose to the conversions.
It is apparent that the Authority did not accept that the claimed conversions were attended by any concurrent purpose. The Authority found that the activities that had been undertaken in this regard had been “undertaken solely for the purpose of furthering” claims to protection (at [20] and [23]).
I am not persuaded that in coming to this conclusion, the Authority failed to consider the evidence that had been given regarding the applicants’ conversions. The Authority accepted that the Applicant had been attending services and bible studies for nearly 3 years and had been “assiduous” in his participation (at [20]). It accepted that the second applicant had also been regularly attending Church events (at [23]). The issue for the Authority was not whether the applicants had gained understanding of the Christian religion. The Authority does not appear to have doubted that the applicants were capable of giving the outward impression of being genuine converts. However, the Authority did not accept that their conversions were genuine, for the reasons that it gave. These included the concerns that the Authority had identified regarding the applicants’ credibility and, in particular, the various inconsistencies that it had identified in their evidence. In these circumstances, I do not accept that the Authority was bound to reason in the manner now suggested by the applicants.
The last aspect of the Authority’s reasoning that the applicants sought to impugn under this ground in submissions concerned its consideration at [20] that “[c]onversion to Christianity is well known as a strong ground on which to claim protection in Australia”. The applicants contended that there was no evidence that they knew this. They contended that it was an irrelevant consideration.
However, I accept the Minister’s submission that the Authority was in this part of its reasoning referring to its own awareness that some visa applicants falsely claimed religious conversion in order to obtain visas. In doing so, it was identifying a possible motive for the claimed conversions rather than assuming any specific knowledge of this practice more generally on the part of the applicants. I am not persuaded that it was closed to the Authority to reason in this manner. The applicants’ potential motives towards obtaining a visa were not irrelevant to assessment of their claims.
For the above reasons, ground 3 is unable to succeed.
Ground 4
Ground 4 contended that the review miscarried on account of the Secretary’s non-provision of all relevant information pursuant to s 473CB of the Act. In particular, the Secretary was submitted to have erred in not providing the departmental files in relation to the Applicant’s mother-in-law.
Section 473CB relevantly provided:
MIGRATION ACT 1958 - SECT 473CB
Material to be provided to Immigration Assessment Authority
(1)The Secretary must give to the Immigration Assessment Authority the following material (review material) in respect of each fast track reviewable decision referred to the Authority under section 473CA:
(a) a statement that:
(i)sets out the findings of fact made by the person who made the decision; and
(ii)refers to the evidence on which those findings were based; and
(iii)gives the reasons for the decision;
(b) material provided by the referred applicant to the person making the decision the decision was made;
(c)any other material that is in the Secretary's possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review;…
A number of cases have found relevant error to have been established on account of what has been held to have been unreasonable failure by the Secretary, through delegates, to provide or consider providing “other material” within the contemplation of s 473CB(1)(e). For example, in DOY21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 163 it was found that, in the particular circumstances of that case, a failure by the Secretary to provide the applicant’s husband’s file to the Authority resulted in relevant error. Relevant error was also found in DIN19 v Minister for Immigration & Anor [2021] FCCA 1, AWO19 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 27 and CJD18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 212.
There have also been cases in which an argument of this nature has not succeeded: see for example CQR17, CCM18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 158 and GJM18 v Minister for Immigration & Anor [2020] FCCA 632.
Ultimately, each case must turn upon its own facts. In CQR17, Jagot J stated at [38]-[39]:
38.… The test is the lack of an intelligible justification for the (assumed) decision that this document was not relevant.
39.The test is not whether I consider the document might have been or was relevant to the review. Nor is the test whether I could have subjectively concluded that the document was irrelevant to the review. The test is whether there is an evident and intelligible justification for the conclusion that the document was not relevant to the review.
In the present case, respectfully, and even accepting the considerable restraint and caution that should accompany consideration of a ground of this nature, I am unable to see how the Secretary, had they or their delegates turned their mind(s) to the relationship between the files, reasonably have concluded that the mother-in-law’s file was not relevant.
As was observed in EOJ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 2 at [82]:
82.… Generally, a decision on another person’s claim for protection is not relevant to a claim for protection by another person, as individual circumstances differ. However, where a joint application is made, the circumstances of all the applicants must be considered, and where claims are common, though made separately as may be the case with a family group, the circumstances of one applicant may well impact upon the consideration of the circumstances of related applicants.
The applicants in the present case had claimed to face harm on account of their family’s conversion to Christianity. The pathway by which the Applicant and second applicant had claimed to have come to this religion included the second applicant’s stepfather evangelising to his family. That family included the second applicant’s mother and sister, who were claimed to have also become influenced by the Christian religion (CB 35, 226-233). It was claimed that her family faced harassment in Iran on account of her stepfather’s conversion. The second applicant’s mother and sister were claimed to have subsequently become dedicated Christians involved with the same Church as the Applicant and the second applicant (CB 324-325).
Moreover, the interrelated nature of the claims was acknowledged by the Delegate at the protection visa interview where the following exchanges occurred (at pages 18-19 of the transcript that is in evidence):
Delegate:Thank you. As as I mentioned to you before, I will now repeat that again. That these cases is that you are representing are from the same boat ah arrival erm from the same family cohort. And some of their claims have similarities and they are overlapping. And the Department would like to share this information as a part of the PV assessment process for this family group. The family group includes - the boat ID is SLT020. SLT021. SLT014. And of course the current applicant, SLT024. And is that agreeable to you?
Agent: Yes it is.
Delegate: And the applicant also, Mr [redacted], do you agree to that?
Interpreter: Yes.
Limited evidence has been placed before the Court regarding the Applicant’s mother-in-law’s file. The applicants rely heavily upon inferences that are able to be drawn from the Authority’s decision record in the mother-in-law’s case. This refers to material that appears to have been referred in that matter by the Department following a decision refusing her protection visa application that appears to have been made on the same date and by the same Delegate as in the applicants’ matter: [2] and [6] of the Authority’s decision in the mother-in-law’s matter. In the absence of evidence to the contrary, I draw what appears to be an obvious inference that this material was in the Secretary’s possession or control at the relevant time.
This material appears to have included written statements made by the Applicant’s mother-in-law regarding her involvement with Christianity and a protection visa interview recording in which the mother-in-law spoke about her religious involvement: [6] and [32]. The mother-in-law’s claims through such material regarding her family’s beliefs and the associated issues that they were claimed to have experienced appear to have been broadly consistent with the claims that were made by the Applicant and the second applicant: [27].
The Minister submitted that the mother-in-law’s decision record supports the drawing of an inference that the Secretary did consider the materials but decided not to provide them to the Authority in the applicants’ matter. Even if this were so, the exercise of discretion in this manner needed to have had an evident and intelligible justification.
The Minister suggested that such a justification may be found through consideration of the material in question. In particular, the Minister emphasised in written submissions that although the mother-in-law had succeeded in her review before the Authority, this was not on the basis of her conversion claim. Rather, the mother-in-law had succeeded on the basis of having appeared on a television program that may have raised her profile in the Iranian community. The Authority then found that “her Christian activity in addition to her profile from the show would cumulatively increase her risk profile above that of remote” (at [39]).
I accept that the Authority in the mother-in-law’s case found her evidence regarding the genuineness of her conversion less than persuasive. However, this is unable to inform whether or not the Secretary discharged their obligations under s 473CB of the Act at the time of referral: CQR17 at [39]. The question of relevance does not require the persuasive force of the material to have been accepted, or even to have been likely to have been accepted, by the Authority. To the extent that this argument went to materiality, it is also unable to succeed. Although the Delegate appears to have been common in both matters, the reviews at the Authority stage were undertaken by different people. It is possible that a different Reviewer may have viewed the persuasive force of the mother-in-law’s account of her religious involvement differently.
It is difficult to conceive of an available chain of reasoning by which overlapping claims regarding the family’s evangelising to each other and conversions, including the claimed harassment by the authorities on account of second applicant’s step-father’s conversion, could be said to have been irrelevant to the applicants’ review.
The Delegate had expressly acknowledged to the Applicant the “overlapping” nature of those claims and, for that reason, obtained his agreement that this information would be shared by the Department “as part of the PV assessment process for this family group”. Given that the Delegate had expressly acknowledged the interrelationship between the matters, and assured the Applicant that the overlapping information would be considered and shared for the family group, it is difficult to see how the Secretary’s delegate(s) could then have reasonably formed the view that this information was irrelevant when referring the review material to the Authority.
For the above reasons, I accept the applicants’ contention that the non-referral of this material lacked an evident and intelligible justification.
It may be that the outcome would not have been different if the Applicant’s mother-in-law’s file had been included with the referred material. The Minister observed that the Authority in the applicants’ case did not expressly reject that the step-father, or mother-in-law, had themselves converted to Christianity or discussed their faith.
However, if the Reviewer in the present case had taken a more positive view of the mother-in-law’s evidence regarding her religious involvement then this possibly may have influenced their disposition towards the credibility of the claimed conversions in the applicants’ case.
Further, if the Reviewer in the present case had accepted the mother-in-law’s evidence regarding the harassment that she claimed she and a daughter had experienced from the authorities on account of the second applicant’s stepfather’s conversion, then it is possible that the Authority may have viewed the family’s profile differently. This may have affected the Authority’s findings as to whether there was a real risk of the applicants’ religious activities in Australia becoming known to the Iranian authorities. For these reasons, I accept that materiality has been established.
Ground 4 of the application therefore succeeds.
Ground 5
Ground 5 contended that the Authority acted unreasonably in not inviting the second applicant, or in not considering inviting the second applicant, to give further information under s 473DC of the Act.
Section 473DC of the Act provided as follows:
MIGRATION ACT 1958 - SECT 473DC
Getting new information
(1)Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:
(a)were not before the Minister when the Minister made the decision under section 65; and
(b)the Authority considers may be relevant.
(2)The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(3)Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a)in writing; or
(b)at an interview, whether conducted in person, by telephone or in any other way.
In support of this ground, the applicants relied upon DPI17 v Minister for Home Affairs [2019] FCAFC 43; (2019) 269 FCR 134 (DPI17). In that case, the Authority was aware that the Delegate had accepted the applicant’s account regarding sexual assaults through reliance upon demeanour at interview. The Authority subsequently rejected the applicant’s credibility without considering inviting the applicant to an interview in order to undertake its own assessment of his demeanour. Instead, the Authority relied upon inconsistencies the Delegate had indicated would not be given substantial weight. It was found to have been legally unreasonable in that case for the Authority not to have considered exercising the power under s 473DC of the Act in the absence of sufficient independent evidentiary basis being available to the Authority to depart from the Delegate’s assessment without inviting the applicant to an interview and conducting its own assessment of his demeanour.
In the particular circumstances of this case, the applicants relied upon the following arguments (reproduced verbatim from the applicants’ submissions):
a. The IAA was specifically aware of the dearth of evidence in respect to the Second Applicant.
b. The IAA determined the issues against the Second Applicant, in part, on the basis of evidence not given by the First Applicant, about which he was not asked and about which there is no evidence to suggest he was aware of.
c. There was no evidence as to the extent of the Second Applicant’s knowledge or understanding of Christianity at all.
d.The IAA was forced to determine credibility issues with reference to irrelevant considerations regarding the Second Applicant’s employment, such a question being completely peripheral to the particular issue of conversion (see BEL16 v Minister for Home Affairs [2019] FCA 1678, at [20]).
e. The IAA determined that the Second Applicant’s claim to have converted was a “fabrication”, despite no-one ever interviewing her. The “extent” of the disbelief highlights the unreasonableness of the finding.
Given my findings regarding ground 4, it is not strictly necessary to determine this ground. However, for completeness, I would not have been inclined to accept that the high thresholds for grounds of this nature had been met in the present case. This is not a case such as DPI17, where the Authority proposed to depart from any positive assessment by the Delegate based upon demeanour. In the present case, the Delegate was similarly not satisfied that the second applicant’s conversion to Christianity was genuine. In part, this was by reference to her claims being “brief and unsubstantiated”. If the applicants had wished to provide further details regarding their understanding and claims to the Authority, then it would have been open to them to have done so in writing in addition to the other material that was provided. Such material would, of course, have had to meet the requirements of s 473DD before it could have been considered.
As discussed above, the issue for the Authority does not appear to have been that the applicants had demonstrated insufficient understanding, or outward indications, of Christianity. The Authority accepted evidence indicating that the applicants had been involved for years with Church activities such as bible studies. However, its decision turned on credibility and, in particular, the various inconsistencies it had identified in the evidence that was before it.
I am not persuaded that it was closed to the Authority to have relied upon the inconsistencies it had identified regarding the limited information that the second applicant had given without seeking further information. In this regard, the Authority did not only rely upon inconsistencies in what the second applicant had said regarding her previous employment, but also upon inconsistent evidence regarding telephone conversations claimed to have occurred with her step-father regarding his conversion (at [23]).
The Authority was aware that the second applicant had not been invited to an interview with the Delegate (at [23]). This appears to have occurred due to the late raising of her own claims and also due to some misunderstanding on the part of the Delegate as to whether she could be interviewed without this. Regardless, the Authority appears to have taken the view that it had sufficient information before it to determine the review without interviewing the second applicant. This was in circumstances where there was some evidence before the Authority regarding the second applicant’s claims, which appeared to the Authority to be lacking in credibility. It was in circumstances where the second applicant had put forward limited material on her own behalf, notwithstanding the concerns expressed in the Delegate’s decision. It was also in circumstances where, although the applicants’ representatives had complained about the approach taken by the Delegate in not conducting a further interview, they did not ask that the Authority interview the second applicant.
In these circumstances, I am not persuaded that the Authority’s non-exercise of the discretion under s 473DC to invite the second applicant to provide further information was capable of meeting the high thresholds associated with grounds of legal unreasonableness.
CONCLUSION
As the applicants have succeeded in demonstrating jurisdictional error under Ground 4, the application before this Court succeeds.
I will hear from the parties in relation to costs.
I certify that the preceding ninety-five (95) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 31 May 2023
SCHEDULE OF PARTIES
Applicants
Fourth Applicant:
CNI18
0
21
0