CRT16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCA 651
•17 June 2021
FEDERAL COURT OF AUSTRALIA
CRT16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 651
Appeal from: CRT16 v Minister for Immigration & Anor [2020] FCCA 2132 File number: NSD 863 of 2020 Judgment of: BESANKO J Date of judgment: 17 June 2021 Catchwords: MIGRATION — appeal from an order made by the Federal Circuit Court of Australia dismissing appellant’s application for judicial review of a decision of Immigration Assessment Authority — where Authority affirmed a decision of a delegate of the Minister to refuse to grant a protection visa to appellant — where appellant is an Iranian national found to be an atheist — treatment of atheists in Iran — whether Authority erred in not considering whether appellant had modified his behaviour in past because of a fear of persecution — where a certificate under s 438GB of the Migration Act 1958 (Cth) had been issued — where it was common ground that certificate was invalid — whether invalidity of certificate itself gives rise to jurisdictional error — whether breach was material in the circumstances — appeal dismissed Legislation: Migration Act 1958 (Cth) ss 438, 473GB Cases cited: Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473
Applicant NAFF of 2002 v Minister of Immigration and Multicultural and Indigenous Affairs [2004] HCA 62; (2004) 221 CLR 1
Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; (2017) 257 FCR 111
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421
Minister for Immigration and Border Protection v SZSCA [2014] HCA 45; (2014) 254 CLR 317
MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081; (2016) 243 FCR 1
VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117
Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 66 Date of hearing: 8 December 2020 Counsel for the Appellant: Mr R Chia Counsel for the First Respondent: Mr N Swan Solicitor for the First Respondent: Mills Oakley Counsel for the Second Respondent: The Second Respondent entered a Submitting Notice, save as to costs ORDERS
NSD 863 of 2020 BETWEEN: CRT16
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
BESANKO J
DATE OF ORDER:
17 JUNE 2021
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs of the appeal to be taxed in default of agreement.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BESANKO J:
Introduction
This is an appeal from an order made by the Federal Circuit Court of Australia dismissing the appellant’s amended application for judicial review. The appellant’s amended application sought constitutional writs with respect to a decision of the Immigration Assessment Authority (the Authority) made on 25 August 2016. On that day, the Authority affirmed a decision of a delegate of the then Minister for Immigration and Border Protection to refuse to grant a protection visa to the appellant.
The appellant is an Iranian national. He arrived in Australia in November 2012 and, in June 2015, he made an application for a temporary protection visa.
The appellant’s claims for protection and the way in which they were dealt with
The appellant advanced two broad grounds upon which he claimed protection. First, the appellant made various claims associated with his questioning of Islam and his status as an atheist in Iran. Secondly, he claimed a well-founded fear of persecution on the basis of his status upon his return to Iran as a failed asylum seeker. This second claim was rejected by the Authority and, as the appeal does not raise any issue about the appellant’s status as a failed asylum seeker, it is not necessary to go into the details of this claim.
The appellant’s claim for protection based on his questioning of Islam and his status as an atheist in Iran and the way in which they were dealt with by the Authority was described by the Federal Circuit Court in its reasons. The following summary is taken from the reasons of the Federal Circuit Court (CRT16 v Minister for Immigration & Anor [2020] FCCA 2132).
In the appellant’s application for a protection visa, he described his religion as “Atheist”. He claimed that the Iranian government did not allow citizens to be atheists. In a written statement which accompanied the application for a protection visa, the applicant said that at high school he had spoken out about his disagreement with the Islamic religion and that he was asked by his scripture teacher to “no longer talk negative or bad about the religion again”. He was told that he had misbehaved and he was threatened with expulsion.
The appellant claimed that whilst he was at university, extremists knew about his ideas and treated him badly. They argued with him and made trouble for him. The appellant claimed that when he left university he tried to find a job in the government sector, but that he would be asked about religion and prayer in interviews and “I couldn’t pass the test”. He returned to work on his father’s farm.
The appellant claimed that he obtained a position as a voluntary teacher at a high school, but was asked to leave when the school found out that he was not following the Islamic religion. He claimed that in Iran, only people who follow the religion and the Islamic system are allowed to have a job. He claimed that if people in Iran spoke out against religion or followed a religion other than Islam, they put themselves in danger of being killed. The appellant also claimed that he could not find a job because of his poor results in religion and scripture.
The appellant left the city in which he was born and moved back to Tehran. He found a few friends and family who did not believe in religion and were atheists and those persons organised gatherings at which they talked about religion and ideas. The appellant claimed that after he found out that one of the leaders of the group had been arrested and another had left the country, he decided to leave Tehran.
The delegate said that the appellant later claimed that he left Iran after he received a telephone call from a person who claimed to be a member of a group wanting to arrange another meeting. The appellant suspected that the caller was a covert security agent. The appellant claimed to fear being arrested, jailed, tortured and mistreated as an atheist if he returned to Iran. In a written submission in support of his application for a protection visa, the appellant’s migration agent claimed that the appellant feared harm for reasons of religion and as a member of a particular social group of atheists in Iran. The submission included references to country information in relation to the treatment of those who held and expressed views against Islam in Iran or were apostates.
The appellant attended an interview before an officer of the Department in connection with his application for a protection visa. The record of the interview was not before the Federal Circuit Court and the evidence of the contents of the interview consists of the references to it in the Authority’s reasons.
The delegate accepted that it was plausible that the appellant had questioned the validity of Islam from a young age, but the delegate did not accept that the appellant’s claim to be an atheist was credible. The delegate found that the appellant was an example of those persons in Islamic society who can be categorised as non-practising Muslims. The delegate also found that the discrimination the appellant had faced was what was faced in public circles by Iranians who did not comply with accepted religious standards and were outspoken against the traditions of the faith, and not the result of being an atheist.
The delegate was of the view that much of the appellant’s evidence about the discussion group to which he belonged, the risk to him and the arrest of the leader of the group was “speculative”. The delegate did not accept that the appellant was a member of an atheist group in Iran or that he had engaged in any behaviour that made him of interest to the Iranian authorities prior to his departure.
The delegate had regard to the absence of evidence that the appellant had publicly renounced Islam, country information that non-practising Muslims would not face harm if they did not openly challenge Islamic rules and what the delegate referred to as the absence of any evidence that the appellant had been, or would in the foreseeable future be, involved in openly challenging Islamic rules. The delegate found that the harm the appellant feared as a non‑practising Muslim in Iran was not well-founded.
The Federal Circuit Court noted that the Authority took a different approach. It found that the appellant had consistently identified himself as an atheist and spoke about his views during his interview for the protection visa. The Authority accepted that the appellant was an atheist who did not believe in any religion, including Islam.
The Authority considered the appellant’s claim that he had spoken out about his atheist beliefs at university in compulsory religious studies and had been discriminated on that basis. The Authority noted that the appellant had not been arrested or detained and nor did he face punishment from the university. He was able to complete his degree. The Authority found that even if it was to accept that the appellant voiced his atheist opinions at the university, it did not accept that he faced serious harm as a result. Nor did the Authority accept that any such actions gave rise to harm to the appellant after he left university.
The Authority considered the appellant’s claims that he had been unsuccessful in obtaining government jobs on the basis of his religion, but was eventually successful in obtaining a voluntary role in a government operated agricultural school. It noted the appellant’s claims that he was dismissed from the government operated agricultural school. It noted the appellant’s claims that he was dismissed from that school because he wore colourful clothes and shaved his beard and that the school interpreted this as meaning that he did not care about Islam.
The Authority then referred to certain country information.
The Authority referred to the fate of the leader of the discussion group of which the appellant was a member. It was prepared to accept that the appellant was part of a group which spoke about religion and what was happening in that respect in Iran. It accepted that the leader was arrested by authorities on the basis of writing things on Facebook and making a speech in public. However, it did not accept that these actions and the leader’s arrest had any affiliation to the group of which the appellant was a member. It had regard to the appellant’s evidence that the group only participated in meetings and found that the group did not participate in the activities in respect of which the leader had been arrested.
The Authority noted that when asked by the delegate whether he had received any threats in Iran, the appellant’s initial response was that apart from at university, he had not received any threats. He later referred to unknown men calling him and his wife, although he stated that no threats were made during these calls. The Authority did not accept that the appellant and his wife had received phone calls from unknown men “in relation to his atheist beliefs” given the manner in which these claims were raised.
The Authority considered the appellant’s claim in the interview with the departmental officer that upon return to Iran, he would be arrested and jailed because of his religious beliefs. It had regard to the fact that in his arrival interview, the appellant had said that if he was returned to Iran “nothing really serious will happen to him, but that he did not want to go back”. The Authority did not accept the appellant’s explanation that he said this because he did not know where he was and which government was interviewing him.
The Authority accepted that the appellant will be returning to Iran as an atheist who was a former member of a group which discussed religion.
The Authority’s reasoning leading to its conclusion that the appellant did not have a well‑founded fear of persecution based on his status of an atheist is summarised below in my analysis of Ground 1 of the appeal.
There are two grounds of appeal to this Court.
Ground 1 of the Appeal
Ground 1 in the Notice of appeal is in the following terms:
Her Honour erred in not finding and ought to have found that the second respondent diverted itself from asking the correct question by focusing on as [sic, an] assumption as to how risk of persecution may be avoided.
The critical reasoning of the Authority was as follows.
The Authority accepted that the appellant is an atheist and that he does not believe in any religion, including Islam. Further, the Authority accepted that the appellant will be returning to Iran as an atheist who was a former member of a group which discussed religion. The Authority accepted that between 2001 and 2012, the appellant was in Tehran and while in Tehran, he joined a group which spoke about religion and what was happening in Iran with religion, including Islam and the Koran. The Authority found that the appellant did not participate in activities beyond attendance at meetings of the group and, in particular, he did not write things on Facebook, or make public speeches. Nor did the appellant’s group participate in such activities.
The Authority referred to country information about the number of persons in Iran who are Muslim, the proportion who reject all religions and the role of Islam in public life. The Authority then turned to consider information about atheists in Iran contained in a Department of Foreign Affairs and Trade (DFAT) report dated 21 April 2016. The DFAT report states that atheists are unlikely to come to the attention of security authorities unless they seek to publicise their views. The report states that, although DFAT is unaware of any recent charges against individuals for being atheists, it is still legally possible for a person to be punished under the Penal Code for insulting the Prophet Muhammad or other prophets and punishment can range from lashes to the death penalty. The report states that a Muslim who leaves his or her faith to practice atheism can be charged with apostasy.
In an important paragraph in its reasons (paragraph 25), the Authority referred to a work in August 2015 of a senior research fellow in Iranian studies at a university in Germany. The Authority identified the following statements in that work: (1) atheists do not usually express their views in public and thus are able to lead normal lives in Iran without facing further restrictions; (2) although atheists cannot discuss their opinions in public, they often present their views anonymously using the internet; (3) it was reported in 2012 that atheism is not recognised in Iran and under Sharia law any Muslim who abandons his faith may face the death penalty for apostasy; and (4) whilst few death sentences for apostasy have been carried out in the last 10 years, atheists are forced to hide their true beliefs for fear of other consequences such as losing social benefits or being banned from entrance to universities.
The Authority said that during the interview of the appellant in connection with his application for a protection visa, aspects of the country information were put to the appellant for comment and he responded by saying that he did not know what to say, but he claimed that he will be arrested upon return to Iran on the basis of his atheist beliefs.
In a key paragraph in the Authority’s reasons (paragraph 27), it sets out its conclusions with respect to the appellant’s claim for refugee status based on the fact that he is an atheist. The Authority said that it was not satisfied based on the personal circumstances of the appellant that there is a real chance he will face harm on the basis of his religious beliefs. The Authority noted that the appellant had been an atheist since he was 14 or 15 years of age and that he left Iran when he was approximately 40 years of age. In that period, and on the appellant’s own evidence, he had not received any threats of harm, other than those at university which the Authority did not find credible and certain telephone calls which the Authority did not accept. The Authority accepted that the appellant was discriminated against in respect of government employment, although it was not able to find one way or the other whether this was in respect of his religious beliefs. In any event, the Authority was not satisfied that such discrimination had or would affect the appellant’s capacity or ability to subsist given that he was able to operate his own business as a plumber or renovator in Tehran between 2001 and 2011. In an important passage in light of Ground 1 of the appeal, the Authority then said at [27]):
... I am satisfied the applicant will be able to return to Iran and continue to reside and maintain his atheist beliefs either individually or as part of a group as he has previously done and will not face a real chance of harm from the Iranian authorities. There is no credible evidence before me to indicate the applicant will act in any other manner than how he has previously acted while residing in Iran and I am not satisfied on the applicant’s own evidence that he has withheld expressing his beliefs in public in fear of facing harm. I am not satisfied there is a real chance of serious harm on this basis, now or in the reasonably foreseeable future. I find the fear is not well-founded.
I turn now to consider the reasons of the Federal Circuit Court. Ground 1 of the appellant’s amended application for judicial review was in the following terms:
1.The second respondent (Authority) asked itself the wrong question and thereby constructively failed to exercise its jurisdiction.
Particulars
The Authority accepted that the applicant is an atheist but concluded at [27] that it was “not satisfied ... that he has withheld expressing his beliefs in public in fear of facing harm”, relying on country information at [25] that:
“While few death sentences for apostasy were carried out in the last ten years. atheists are forced to hide their true beliefs for fear of other consequences such as losing their social benefits or being barred from university entrance”.
In doing so, the Authority equated the abatement in number of death sentences being carried out with the absence of well-founded fear of harm and failed to consider whether death sentences had not been carried out because atheists hid their true beliefs due to well-founded fear of harm.
In developing this ground, the appellant argued before the Federal Circuit Court that the Authority had made the type of error identified by the High Court in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473 (Appellant S395/2002), at [43] per McHugh and Kirby JJ; at [80] and [88] per Gummow and Hayne JJ.
The primary judge summarised the submissions of the parties and then examined the key passages in Appellant S395/2002. She said that the appellant had never claimed that he had modified his conduct in the past (at PJ [45]) and that the case must be considered on the basis that the appellant had never claimed that he had modified his behaviour to avoid harm (at PJ [46]). Her Honour said that this was not a case in which the appellant claimed that he had conducted himself in a discreet manner in relation to expressing his atheist beliefs in public in fear of facing serious or significant harm (at PJ [46]).
The primary judge rejected the appellant’s submission that the Authority had assumed that the appellant had withheld expressing his beliefs in public because of a fear of facing harm by reference to the country information identified in paragraph 25 of its reasons and furthermore, the primary judge said that it was not clear that the Authority was making an assumption that the reason few death sentences for apostasy had been carried out in recent years was because atheists chose to act discreetly because of fear of such harm (at PJ [47]).
The primary judge said that, in any event, the Authority had, by reference to its assessment of the appellant’s evidence, made findings about what would happen if the appellant returned to Iran, not whether adverse consequences could be avoided and, in that context, her Honour referred to paragraph 27 of the Authority’s reasons (at PJ [48]–[49]).
The primary judge expressed her conclusions as follows (at PJ [51]):
It has not been established that the Authority asked the wrong question or made an assumption about how the risk of persecution could be avoided based on country information (such that discussed at paragraph 25 of its reasons) or that it proceeded on the basis that the Applicant had modified his conduct in the past or could modify his conduct in the future to avoid harm. The Authority found, based on the Applicant’s own evidence, that it was not satisfied that he had withheld expressing his beliefs in fear of facing harm. It considered what might happen if he returned to Iran, not whether adverse consequences “could” be avoided (see SZSCA at [17]).
On the appeal to this Court, the appellant submits that the Authority’s finding that it was not satisfied that the appellant had withheld expressing his beliefs in public in fear of facing harm was based on the country information referred to in paragraph 25 of its reasons. I have summarised this paragraph above (at [28]), but it is convenient at this point to set it out in full:
A senior research fellow in Iranian studies at a university in Germany stated in August 2015 that atheists usually do not express their views in public and are thus able to lead normal lives in Iran without facing any further restrictions. Whereas atheists obviously cannot discuss their opinions in public, they often use the internet to present their views anonymously. In 2021, it was reported that atheism is not recognised in Iran and that under Iran’s sharia law, any Muslim who abandons his faith may face the death penalty for apostasy. While few death sentences for apostasy were carried out in the last ten years, atheists are forced to hide their true beliefs for fear of other consequences such as losing their social benefits or being barred from university entrance.
The appellant submits that what the Authority did in this passage was to presume or infer from the information that few death sentences for apostasy had been carried out in the last 10 years, that there is no real chance of the death penalty being carried out in the future and, therefore, no well-founded fear of harm on that basis. In other words, he submits that, as in Appellant S395/2002, the absence of past harm was taken to mean an absence of a well-founded fear of harm because it was assumed without inquiry that the appellant’s conduct was unaffected by the conduct of the persecutor. The appellant submits that whether the appellant had claimed that he had withheld expressing his beliefs in public in fear of facing harm was not to the point. The error in Appellant S395/2002 was that the Tribunal had assumed the applicants could modify their conduct in the future and had assumed the applicants could act as they had in the past without considering their past reasons for doing so. The appellant submits that the Authority accepted that “atheists … hide their true beliefs for fear of other consequences …” and that this formed the basis of its finding that the appellant had not “withheld expressing his beliefs in public in fear of facing harm”. That, it was said by the appellant, is the wrong question. Put another way, the appellant’s submission is that the Authority had, in fact, applied the general finding based on the country information in paragraph 25 that the appellant had modified his conduct for fear of harm.
It is fallacious in certain circumstances to reason that because a person experienced no discrimination in the past, he or she will not experience any discrimination in the future without considering whether the conduct in the past was itself affected by a fear of persecution. The way in which the error was identified by McHugh and Kirby JJ in Appellant S395/2002 (at [43]) was a failure to consider and to determine whether modified conduct in the past was influenced by the threat of harm. Gummow and Hayne JJ approached the matter by identifying the correct question and the incorrect question. The correct question in assessing whether an applicant’s fear of persecution is well-founded is what may happen if the applicant returns to the country of nationality and not whether the applicant could live in that country without attracting adverse consequences (at [80]).
The plurality in Minister for Immigration and Border Protection v SZSCA [2014] HCA 45; (2014) 254 CLR 317 (SZSCA) said that the essential reasoning in Appellant S395/2002 was that the Tribunal had diverted itself from its task of determining whether there would be a real chance of persecution if the applicants returned to Bangladesh by focusing on an assumption that the risk of persecution might be avoided. The inquiry was what might happen if the applicants returned, not whether adverse consequences could be avoided (at [17]). Gageler J said that the principle for which Appellant S395/2002 stands is that a fear of persecution for a Convention reason, if it is otherwise well-founded, remains well-founded even if the person concerned would or could be expected to hide his or her race, religion, nationality, membership of a particular social group, or political opinion by reason of that fear and thereby avoid a real chance of persecution (at [36]).
In my opinion, the basic premise of the appellant’s submission fails. He submits that the Authority’s finding that it was not satisfied on the appellant’s own evidence that he has withheld expressing his beliefs in public in fear of facing harm was based on country information that while few death sentences for apostasy were carried out in the last ten years, atheists are forced to hide their true beliefs for fear of other consequences, such as losing their social benefits or being barred from university entrance. As far as I could follow the appellant’s submission, it was that in placing weight on the lack of death sentences in assessing whether there was a well-founded fear of persecution, the Authority had committed the type of error identified in Appellant S395/2002 because it had not asked itself whether the lack of death sentences had itself come about because of a desire to avoid a real chance of persecution.
There are two answers to this submission. First, in considering the lack of death sentences, the Authority recognised in the same sentence in its reasons that atheists are forced to hide their beliefs for fear of the other consequences it identified. Secondly, and more significantly, there is no apparent link between the two findings. It is plain enough, in my opinion, that in relation to the second finding, the Authority directed itself to the very question of whether the appellant had withheld expressing his beliefs in public in fear of facing harm. The Authority found on the appellant’s own evidence that it was not satisfied that he had done so. By that stage, the Authority had moved from the country information to the “personal circumstances” of the appellant.
The primary judge was correct to conclude that the Authority had not proceeded by making an assumption about how the risk of persecution could be avoided, or proceeded on the basis that the appellant had modified his conduct in the past, or could modify his conduct in the future to avoid harm. The Authority was satisfied that the appellant had not modified his behaviour in the past and there was nothing to persuade it that he was likely to act in any other manner than he had previously acted whilst residing in Iran. The Authority found that the appellant would continue to act as he had previously and that he did not face a real chance of harm from the Iranian authorities.
I reject Ground 1 of the appeal.
Ground 2 of the Appeal
Ground 2 in the Notice of appeal is in the following terms:
Further or in the alternative, her Honour erred in not finding and ought to have found that the second respondent committed jurisdictional error due to the provision of an invalid notification under section 473GB of the Migration Act 1958.
Section 473GB of the Migration Act 1958 (Cth) (the Act) is in the following terms:
473GB Immigration Assessment Authority’s discretion in relation to disclosure of certain information etc.
(1) This section applies to a document or information if:
(a)the Minister has certified, under subsection (5), that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 473GA(1)(a) or (b)) that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or
(b)the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence.
(2)If, in compliance with a requirement of or under this Act, the Secretary gives to the Immigration Assessment Authority a document or information to which this section applies, the Secretary:
(a)must notify the Authority in writing that this section applies in relation to the document or information; and
(b)may give the Authority any written advice that the Secretary thinks relevant about the significance of the document or information.
(3)If the Immigration Assessment Authority is given a document or information and is notified that this section applies in relation to it, the Authority:
(a)may, for the purpose of the exercise of its powers in relation to a fast track reviewable decision in respect of a referred applicant, have regard to any matter contained in the document, or to the information; and
(b)may, if the Authority thinks it appropriate to do so having regard to any advice given by the Secretary under subsection (2), disclose any matter contained in the document, or the information, to the referred applicant.
(4)If the Immigration Assessment Authority discloses any matter to the referred applicant under subsection (3), the Authority must give a direction under section 473GD in relation to the information.
(5) The Minister may issue a written certificate for the purposes of subsection (1).
Between the Authority’s decision and the hearing before the Federal Circuit Court, the Minister disclosed a certificate dated 12 July 2016 issued under s 473GB(5) and addressed to the Senior Reviewer of the Authority. The certificate is described as a “Notification Regarding the Disclosure of Certain Information Covered By Section 473GB of the Migration Act 1958”. The certificate is in the following terms:
I notify the Immigration Assessment Authority that section 473GB of the Migration Act 1958 applies to a document or information in the document titled 79393264709-NIS053-IMA PV Identity Assessment Form-14 October 2015 contained in PDF Portfolio D-1-PRID240580860-[REDACTED]-CID79393264709
In my view, this document or information should not be disclosed to the referred applicant or the referred applicant’s representative because:
(a)The disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest because it is a Departmental working document.
The Immigration Assessment Authority’s use and disclosure of a document or information covered by this certificate is subject to subsections 473GB(3) and 473GB(4) of the Migration Act 1958.
This certificate is made pursuant to subsection 473GB(5) of the Migration Act 1958.
Shortly after the certificate was disclosed, the document referred to in it, being an Identity Assessment Form in relation to the appellant, was put before the Federal Circuit Court. The primary judge referred to this as an ID Assessment and I will do likewise.
The appellant then amended his application for judicial review to allege the following:
2.Further or in the alternative, the Secretary materially provided to the Authority an invalid notification, purportedly under s 473GB of the Act.
It is common ground between the parties that the certificate was invalid because it specified a reason that could not form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document should not be disclosed: MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081; (2016) 243 FCR 1 (MZAFZ) at [37]–[38] per Beach J.
The issue between the parties concerned the consequences of the invalidity of the certificate. The appellant submits that the act of the Authority in relying on an invalid certificate is of itself a jurisdictional error and, for that proposition, he relied on MZAFZ at [40]–[44] and Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 (SZMTA) at [44] per Bell, Gageler and Keane JJ. The appellant submits that the provision of an incorrect and, therefore, invalid notification that s 473GB applied in relation to a document or information amounted “without more” to an unauthorised act in breach of the limitation within the statutory procedures which condition the performance of the overarching duty of the Authority to conduct a review. He accepts that is not the end of the inquiry because he accepts that to give rise to jurisdictional error leading to invalidity, the breach of the limitation must be material. As I understand it, the appellant accepts that he bears the onus to prove materiality (SZMTA at [45] per Bell, Gageler and Keane JJ) and that materiality is only proved if it is shown that compliance could realistically have resulted in a different decision (SZMTA at [45]). The appellant submits that in this case compliance with s 473GB could realistically have resulted in a different decision.
The Minister submits that unlike the position concerning s 438 of the Act, a failure to comply with s 473GB does not result in invalidity and, for that purpose, he relied on the decision of the Full Court of this Court in Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; (2017) 257 FCR 111 (BBS16) at [96]–[100]. The Minister submits that the earlier decision in BBS16 is unaffected by the later decision in SZMTA. The Minister submits that, in any event, the appellant has failed to establish materiality.
As I read the primary judge’s reasons, she considered that BBS16 was binding on her and that, therefore, jurisdictional error had not been established (at PJ [93]). Nevertheless, her Honour went onto consider whether the breach was material and she held that it was not. In other words, the primary judge held that the appellant had not established that compliance could realistically have resulted in a different decision.
The appellant asks me to hold that the reasoning in SZMTA means that the provision of an incorrect and, therefore, invalid certificate that s 473GB applies in relation to a document or information amounts, without more, to an unauthorised act in breach of a limitation within the statutory procedures which condition the performance of the overarching duty of the Authority to conduct a review and, subject to materiality, results in the invalidity of the Authority’s decision.
On the appeal, the Minister submits that I can and should resolve this case against the appellant by finding that he has not proved that the breach was material and that it is not necessary for me to decide whether I am bound by BBS16 or the issue is now governed by the High Court’s decision in SZMTA. Although I am exercising the appellate jurisdiction of the Court, I am sitting as a single judge and the argument was, with respect, somewhat limited. I think the course suggested by the Minister is the preferable one. I have reached the conclusion that materiality has not been established.
The appellant’s argument on materiality proceeded on the basis that the ID Assessment had not been taken into account (SZMTA at [45] per Bell, Gageler and Keane JJ) and that the materiality was to be judged by the counterfactual of the Authority taking the information into account.
The appellant highlighted the following matters in the ID Assessment which are described in that assessment as “concerns”:
(1)The appellant had previously said that he was a “Muslim Shia”;
(2)The appellant claimed to have left Iran legally and that his Iranian passport was taken whilst in Indonesia when, in fact, the passport expired prior to that time; and
(3)The Department’s integrated client service environment showed that at the time he had the same residential address as another person who arrived at “same time with the applicant in [Christmas Island] who he had claimed not to know”.
The appellant submits that these observations were not neutral observations which were not all dealt with by the Authority in its reasons and could have affected its assessment of the credibility of the appellant’s claims and thus “the issues in relation to the [appellant’s] own evidence”. The appellant referred to VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [79] in which the Full Court of this Court said that an assessment of credibility is not necessarily linear in the sense that an error which, on the face of it, appears to relate to only one issue of many issues forming the basis of a credibility assessment has the potential to affect the overall assessment. Kirby J put the matter thus in Applicant NAFF of 2002 v Minister of Immigration and Multicultural and Indigenous Affairs [2004] HCA 62; (2004) 221 CLR 1 at [81]:
Secondly, and in any case, decision-making is a complex mental process. Disbelief of a litigant or witness on one point might carry over to affect the decision-maker’s disbelief of the same person on other points. Contrary-wise, establishing that an initial disbelief of a person’s credibility on one matter was erroneous might convince a decision-maker of the need to revisit other conclusions and to look at the person's entire evidence in a new light.
(Citation omitted.)
The ID Assessment has two sections, one for the provision of comments about whether there are any concerns with respect to the integrity of the documents provided by the appellant (section 1) and the other for the provision of comments about whether there are any obvious inconsistencies in the information that raises concerns about the appellant’s integrity (section 2).
I start with section 2. In that section, the departmental officer who wrote the ID Assessment noted that in the appellant’s “arrival”, the appellant did not claim that he was an atheist, but rather said that he was a Muslim Shia. The context of the comments is such that it is clear that the reference to arrival is a reference to the appellant’s arrival interview. It is also noted that in the same interview, the appellant said that if he returns to Iran nothing serious will happen and that he is being honest with the Department.
The information I have identified is not material in the sense that had it been before the Authority, there is a realistic possibility that the decision could have been different for the following reasons. First, the arrival interview with this information in it was, in fact, part of the material before the Authority. Secondly, the Authority addressed and resolved the issue of whether the appellant was a Shia Muslim or an atheist in the appellant’s favour. Thirdly, in any event, the information is not favourable to the appellant and such potential as the information has is to damage, not assist, the appellant’s case.
In section 2, there is a note that a person who appeared to be living with the appellant had also arrived at Christmas Island at the same time as the appellant and yet neither the appellant nor the other person claimed to know the other. This information is not material in the relevant sense. It does not bear on an issue discussed by the Authority and had it been considered by the Authority, it had the potential to damage the appellant’s case, not assist it.
In section 1, there is reference to the fact that the appellant provided a copy of an expired passport to the Department and an account of what happened to his current passport in circumstances where he no longer had it. Other than noting that the appellant had provided his expired passport and that it was satisfied of the appellant’s identity, the Authority did not address or make any findings in relation to the appellant’s expired passport or his current passport. It was not an issue before the Authority and had the information been before the Authority, it had no potential to improve the appellant’s case.
Finally, to the extent the appellant relies more generally on the information in the ID Assessment, that does not assist his case because of the following: (1) insofar as the information relates to the appellant’s identity, that was not in issue before the Authority; and (2) insofar as the information in the ID Assessment consists of inconsistencies in the appellant’s account, those matters would not have assisted the appellant had the Authority taken the information into account.
I reject Ground 2 of the appeal.
Conclusion
The appeal should be dismissed with costs.
I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Besanko. Associate:
Dated: 17 June 2021
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