Cuh21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs - [2022] FedCFamC2G 46

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CUH21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 46

File number: PEG 170 of 2021

Judgment of: JUDGE KENDALL

Date of judgment: 4 February 2022

Catchwords: MIGRATION – Safe Haven Enterprise visa – decision of the Immigration Assessment Authority – whether the IAA acted unreasonably in declining the applicant’s request to be invited to a hearing – whether the IAA acted unreasonably by not extending the time for the applicant to provide further information – whether the IAA acted unreasonably by not requesting that the applicant provide “correct submissions” – whether the IAA erred in its consideration of new information pursuant to s 473DD of the Migration Act 1958 (Cth) – whether the IAA was biased – whether the IAA erred in relation to its consideration of country information – no jurisdictional error – application dismissed.

Legislation: Migration Act 1958 (Cth), ss.5, 5H, 5J, 473CB, 473DA, 473DB, 473DC, 473DD, 473FB, 473GA, 473GB and Division 3 of Part 7AA

Cases cited: AUS17 v Minister for Immigration and Border Protection (2020) 94 ALJR 1007
BEP17 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 81
CNY17 v Minister for Immigration & Border Protection [2019] HCA 50
Craig v State of South Australia (1995) 184 CLR 163
DBX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 897
DLB17 v Minister for Home Affairs [2018] FCAFC 230
DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784
Dunsmuir v New Brunswick [2008] 1 SCR 190
EGZ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 10
GLX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 9
Minister for Home Affairs v DUA16 [2020] HCA 46
Minister for Immigration & Border Protection v Singh [2014] FCAFC 1
Minister for Immigration & Citizenship v Li [2013] HCA 18
Minister for Immigration & Citizenship v SZKRT [2013] FCA 317
Minister for Immigration & Citizenship v SZMDS [2010] HCA 16
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration v Jia Legeng (2001) 178 ALR 421
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Plaintiff M174/2016 v Minister for Immigration & Border Protection (2018) 264 CLR 217
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80

Division: Division 2 General Federal Law

Number of paragraphs: 171

Date of hearing: 17 January 2022

Place: Perth

Applicant: In person

Counsel for the First Respondent: Ms L Groves

Second Respondent: Submitting appearance, save as to costs

Solicitor for the Respondents: Australian Government Solicitor
ORDERS

PEG 170 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
CUH21

Applicant

AND:
MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:

JUDGE KENDALL

DATE OF ORDER:

4 FEBRUARY 2022

THE COURT ORDERS THAT:
1.The application be dismissed.

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 KENDALL:
INTRODUCTION

The applicant is a citizen of Pakistan (Court Book (“CB”) 9, 16, 44, 73, 86, 116 and 133). He arrived in Australia as an unauthorised maritime arrival in July 2013 (CB 133).
On 1 August 2016, the first respondent (the “Minister”) invited the applicant to apply for a protection visa (CB 34-42).
On 7 August 2017, the applicant applied for a Safe Haven Enterprise (subclass 790) visa (the “visa”) (CB 43-80). The applicant provided a statutory declaration with his application in which he outlined his protection claims as follows (CB 73-76):
(a)he was born into a religious Sunni Muslim family (at [5]). He was born and raised in Parachinar (which is affected by ongoing sectarian violence between Sunni and Shia Muslims). In 2008, his family moved to Sadda to escape the violence (at [6]);
(b)he developed an interest in the Shia faith while living in Pakistan. His father punished him for reading Shia books and told him that ‘if [he] even think[s] of becoming Shia, [his father] will be the first person to kill [him].’ Since his arrival in Australia the applicant has “embraced [his] new faith and [has] converted to Shia Islam”. He now lives with Shia people and attends a Shia mosque (at [8]-[11]);
(c)there was sectarian violence in Sudda which the applicant’s extended family was involved in. His extended family members were involved in the killing of two Turi men and their families have declared that they will avenge their deaths and that they consider the applicant’s entire tribe to be responsible. The applicant was particularly at risk of being killed because he used to go to school every day (at [12]-[13]);
(d)he fears being seriously harmed or killed in Pakistan as a result of sectarian violence and by the Taliban or other extremist groups due to his conversion to Shia Islam. He also fears harm from Turi tribesmen due to his family’s feud (at [14]-[17]);
(e)the Pakistani government cannot protect him from harm if he were to return and the government is “weak and is incapable [of] provid[ing] effective protection to all minority groups in Pakistan” (at [18]-[19]);
(f)
as a Shia Muslim, he would not feel safe in any region of Pakistan because of the risk from the Taliban and other militants’ strong influence on Pakistani authorities

(at [20]-[22]); and
(g)he will encounter difficulties if forced to relocate to an urban centre because he will not be able to afford the costs of living and will face difficulties because he does not speak Urdu or Punjabi (at [23]).
The applicant attended an interview with a delegate from the Minister’s Department on 26 October 2017 (CB 93-103).
On 15 December 2017, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 133-148). The delegate determined that the applicant had “contrived his claims regarding his conversion to Shia Islam”. The delegate also found that, as a member of the Pashtun Sunni community, the applicant faced a real chance of sectarian attacks in Upper Kurram, and would face a real chance of persecution if he returned to the Kurram Agency. However, the delegate concluded that the applicant would not have a well-founded fear of persecution in other parts of Pakistan (such as Islamabad, Lahore and Karachi). For the purposes of the complementary protection assessment, the delegate found that it was reasonable for the applicant to relocate to Islamabad, Karachi or Lahore, where he would not face a real risk of significant harm.
The delegate’s decision was referred to the Immigration Assessment Authority (the “IAA”) on 20 December 2017 (CB 149).
On 9 January 2018, the applicant called and emailed the IAA seeking an extension to provide written submissions (CB 162-163). The IAA responded on the same day granting an extension of time within which to do so (until 16 January 2018) (CB 164).
On 17 January 2018, the applicant’s new representative requested a further extension (to 19 January 2021) within which to file a submission (CB 165). On the same day, the representative provided a statement from the applicant, a statutory declaration by a person who knows the applicant (noting that the applicant is an active member of a Shia community), a 99 page submission (which largely consisted of country information, but also included argument addressing the delegate’s decision) and a photograph of the applicant attending a prayer meeting (CB 165-273).
On 17 January 2018, the IAA sent an email to the applicant’s representative refusing the additional time to provide submissions (CB 285). The applicant’s representative responded to the IAA on the same day again asking for more time (arguing that this request was reasonable in the circumstances) (CB 286-287). On 19 January 2018, the IAA responded and noted that the application for an extension of time had already been refused (CB 288).
On 15 October 2018, the IAA affirmed the delegate’s decision to refuse to grant the applicant the visa (CB 296-316).
On 8 November 2018, the applicant applied for judicial review of the IAA’s decision in this Court. The application is brought pursuant s 476 of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicant must show that the IAA has fallen into jurisdictional error.
IAA’S DECISION
It is not disputed that the applicant satisfies the criteria in s 5(1) of the Act for a “fast track applicant”. This is important in relation to allegations of jurisdictional error in proceedings before the IAA as the Act arguably restricts what this Court can and cannot do when determining whether there is jurisdictional error on the part of the IAA.
Section 473CB(1) of the Act requires the Secretary of the Minister’s Department to give to the IAA certain material, known as the “review material”. This includes:
(a)a statement of the findings of fact made by the decision maker, the evidence relied upon and reasons of the decision maker;
(b)material provided by the “referred applicant” to the delegate before a 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 IAA) to be relevant to the review”; and
(d)the referred applicant’s contact details.
The IAA is generally required to conduct its review of the delegate’s decision on the basis of the material that was before the delegate at the time the decision was made.
The IAA can, however, obtain “new information”, which is defined as information that was not before the delegate and which the IAA considers “may be relevant”: s 473DC(1) of the Act. Applicants may also provide “new information” to the IAA and ask that it take that information into account.
When the IAA does obtain or receive new information, the IAA cannot consider it for the purposes of making a decision on the review unless certain conditions are met. Those conditions are set out in s 473DD of the Act. That section provides:
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.
Division 3 of Part 7AA of the Act deals with the conduct of reviews by the IAA. Section 473DA(1) of the Act stipulates that this Division, together with ss 473GA and 473GB of the Act, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the IAA.
This Court is generally reluctant to “copy and paste” large portions of the IAA’s decision (preferring, instead, to summarise the IAA’s “core” findings). At times, however, it is useful to provide substantial portions of the IAA’s reasons in order to draw attention, in some detail, to the IAA’s reasoning process: DBX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 897 (per McKerracher J) at [29] to [32]. This is particularly the case when (as is the case here) the applicant appeared before the Court without legal representation and had difficulty articulating his concerns. In these circumstances the Court will, in its duty to the self-represented litigant, remain astute and alert to the possibility of jurisdictional error in the IAA’s decision: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392 (“MZAIB”).
The IAA’s decision in this matter is 21 pages long and spans 67 paragraphs. Four pages extract the relevant legislative provisions. Those provisions are summarised at [49]-[50] and [62]-[63] of the IAA’s decision.
The IAA confirmed that it had had regard to the material referred to it by the Secretary (at [3]).
The IAA then identified that:
4.On 17 January 2018, the IAA received from the applicant's representative a submission dated 17 January 20018, an undated statement from the applicant, a statutory declaration from a person living at the same address as the applicant dated 16 January 2018, and two undated images said to show the applicant's religious activities in Australia.
The IAA noted that:
5.The 99 page submission from the applicant’s representative includes argument addressing the delegate’s decision. I have had regard to that element of the submission. I note that the submission contains numerous references to ‘our clients’. For example, it states ‘We submit that as our clients are Shias with a significant adverse profile due to their background, as a result they will face real risk of significant harm if they now returned to Pakistan’. The applicant is a single male. This raises some question as to the extent to which the submission relates to the applicant’s individual claims for protection. The submission includes a range of new country information about Pakistan said to relate to the persecution of Shias, including converts to Shia Islam, the persecution of religious minorities, the availability of state protection, and impediments to the applicant’s relocation to other parts of Pakistan. The new information in the submission includes references to Administrative Appeals Tribunal (AAT) and Refugee Review Tribunal (RRT) decisions said to relate to Shia Muslims.
6.The new information in the submission pre-dates the delegate’s decision. No explanation has been provided as to why this information could not have been provided at an earlier point, other than the representative’s reference to the fact that he did not act for the applicant in relation to the SHEV application. I note that AAT and RRT decisions are not binding on the IAA and that the decisions cited were reached following consideration of the particular circumstances of the applicants in those cases. In any event, for reasons discussed below, I have not accepted that the applicant has converted, or is perceived to have converted, to Shia Islam. I have also found it unnecessary to consider the question of relocation to an area other than the applicant’s former home in Sadda, in Kurram Agency. In all the circumstances, I am not satisfied that there are exceptional circumstances to justify considering this information.
7.The submission contains the new claims that the applicant fears harm as a member of ‘one or more’ of the particular social groups ‘Former Sunni who converted to Shia religion’, ‘People holding views against Taliban’s religious and political ideologies’, and ‘Failed Asylum Seeker’. The submission provides little information about the applicant’s claimed membership of these particular social groups. It is unclear how, or whether, the applicant’s claimed fears based on his possible membership of these groups differs from the fears he has previously expressed relating to his claimed conversion to Shia Islam. I note that the delegate considered the chance of harm to the applicant as a failed asylum seeker and it is unclear how or whether the applicant’s claimed possible membership of the particular social group ‘Failed Asylum Seeker’ raises any different issues for consideration. The submission also suggests, without further detail, that the applicant may be targeted by the Taliban due to his ‘religious and tribal background’. The meaning of the reference to the applicant’s tribal background is not clear.
The IAA then noted that the applicant had had the assistance of a representative when preparing his claims for the visa. These claims were explored during an interview with the delegate and, when the delegate asked the applicant whether there were any reasons he feared returning to Pakistan other than those that had been discussed, the applicant stated that he feared harm as a convert from Sunni to Shia Islam and the security situation in Pakistan. While the applicant’s representative indicated that they would provide a written submission, no submission was received (at [8]).
The IAA concluded:
9. The applicant has not satisfied me that the new claims and other new information in the submission could not have been provided to the delegate before he made his decision. I am not satisfied that the general country information referred to by the applicant is personal information. The AAT and RRT decisions cited in the decision are not said to relate directly to the applicant or any person connected to him, but appear to have been cited on the basis that the facts in those cases are said to be similar to those in the applicant’s case. It is not possible to identify the individuals who are the subject of those decisions. I am not satisfied that they are personal information, and in any event I am not satisfied that they are information that may have affected the consideration of the applicant’s claims. I am satisfied that the new claims are credible information in the sense that they are capable of being believed, and that they otherwise meet the requirements of s.473DD(b)(ii). However, in view of the matters discussed, I am not satisfied that there are exceptional circumstances to justify considering the new claims, or any of the other new information in the submission.
The IAA then considered the statutory declaration of a person who resided at the same address as the applicant. The IAA noted that no explanation had been provided about who the person was and the declaration stated only that the applicant was a Shia Muslim, an active member of the Shia Bazm-e-Ahlebait community, attended the Shia community’s programs ‘quite regularly’ and attended congregational prayers regularly (at [10]). The declaration contained no details of the applicant’s claimed conversion from Sunni Islam, no information about the nature of the Shia programs or activities in which the applicant is said to have participated and no information about how long the applicant is said to have been involved in the activities of the Shia community in Perth. The IAA found that the declaration “was vague in all respects” (at [11]).
The IAA again noted that the applicant had been represented throughout the application process and had had a number of opportunities to put forward his claims for protection and any evidence to support those claims. The IAA also noted, in this regard, that the applicant had been advised by the delegate that there were concerns about his conversion (at [12]).

The fact that the applicant’s housemate had provided a statutory declaration caused the IAA to consider it to be “less authoritative than an independent source”. The lack of specific detail caused the IAA to consider the declaration to be of limited value. The IAA accepted that the declaration met s 473DD(b)(i) of the Act but was not satisfied that there were exceptional circumstances to justify its consideration: s 473DD(a) of the Act (at [13]).
The IAA continued:
14.The applicant’s undated statement largely reiterates his previous claims. It includes some argument addressing the delegate’s decision. I have considered this aspect of the statement. The statement includes the new claim that the applicant’s Pakistani national identity card would identify him as coming from Parachinar, and as people from Parachinar are largely Shia, he may be perceived to be Shia and harmed on this basis. The applicant did not provide a copy of an identity card in support of this claim. It is not clear whether he currently holds an identity card or is referring to a card yet to be issued.
15.As discussed, the applicant has had a number of opportunities to put forward his claims for protection. He has been represented throughout the SHEV application process. He has not provided any explanation as to why this claim could not have been made at an earlier point. For the reasons discussed below, I have found that the applicant can return to his home former home in Sadda, in Lower Kurram Agency. The applicant’s family are Sunni. The applicant indicates that they have lived in Sadda for some ten years. He states that he lived there for approximately five years before he left Pakistan. I do not consider that the applicant would be perceived in Sadda to be Shia on the basis that his identity card may record his place of birth in Parachinar. Further, on the evidence before me, it is not clear that the applicant’s identity card does or would in fact include any reference to Parachinar.
16.The applicant has not satisfied me that this new information could not have been provided to the delegate before he made his decision. While I accept that the new claim is credible information in the sense that it is capable of being believed, and that it otherwise meets the requirements of s.473DD(b)(ii), I am not satisfied in the circumstances that there are exceptional circumstances to justify considering this new claim.
The IAA then considered the photographs which “showed the applicant engaged in religious activities” in Australia (at [17]). The “lack of information provided surrounding the photographs” caused the IAA to conclude that they were of little value in corroborating the applicant’s claim to be Shia Muslim. Again, the IAA accepted that the photographs met s 473DD(b)(ii) of the Act but was not satisfied that there were exceptional circumstances to justify consideration of the photographs: s 473DD(a) of the Act (at [18]).
Finally, the IAA noted that the applicant had asked that he be invited to an interview because the delegate was “biased” (at [19]). The IAA noted that the applicant had not provided any specific example of how the delegate’s approach prevented the applicant from having his claims considered (at [20]).
The IAA was satisfied that the applicant had been given a proper opportunity to present his claims and that, in the circumstances, the IAA was not obliged to invite the applicant to an interview. Accordingly, the IAA declined to do so (at [21]).
The IAA then summarised the applicant’s claims (at [22]).
In considering the applicant’s claim to have converted to Shia Islam, the IAA:
(a)summarised the applicant’s claim in this regard, noting that the applicant had had an interest in Shia Islam since he was a child, had found Sunni practice to be overly strict and had been provided Shia textbooks. It was also noted that he claimed that his father had threatened to kill him if he converted to Shia Islam and he left Pakistan so that he could convert (at [23]);
(b)noted that the applicant had explained that he has Sunni relatives with extremist views who are linked to the Taliban. Further, since coming to Australia he has converted to Shia Islam and, through word of mouth, his family have learned that he has done so. Although his father refuses to speak to him he remains in contact with his mother (at [24]);
(c)explained that the applicant had identified himself as Sunni in the arrival interview. He had advised the delegate that he had done so because, at that time, he had not converted to Shia Islam. The IAA considered it “surprising” that, in circumstances where the applicant claimed that he intended to convert to Shia Islam, and fled Pakistan to do so, he would identify himself as a Sunni Muslim on arrival in Australia without further comment (at [25]);
(d)outlined that the applicant had advised, at the arrival interview, that he fled Pakistan in fear of the Taliban and that there were a number of shootings, bomb blasts and kidnappings. Further, he had stated that the Taliban had burnt his house down in 2007 (at [26]);
(e)stated:
27. During the SHEV interview, the delegate advised the applicant that it was of concern to him that he did not mention his fears related to his interest in, and wish to convert to, Shia Islam during the entry and biodata interviews. The applicant put forward a number of explanations for this omission, both during the SHEV interview and in his SHEV application. He said that he did not refer to these matters as he was mentally unwell at the time of these interviews, having been traumatised by his journey to Australia. He said he was asked to give a brief summary of his reasons for leaving Pakistan during the entry interview, therefore he had only given minimal information. He was not made aware that the information he provided during the entry interview would be used for the purpose of assessing his protection claims. He said he did not understand Australia’s protection obligations, what a refugee was, or the concept of freedom of religion at that time. He had no legal representation to assist him and was not prepared for the entry interview. He referred to his young age, stating that he was just over 16 years of age at the time (as mentioned, the recording of the entry interview indicates that the applicant advised that he was just over 18 years of age at the time of the interview, rather than just over 17 years of age as his passport indicated). He said he was afraid to speak openly about his religious beliefs at that time as in Pakistan conversion to Shia Islam presented a risk to his life. He identified himself as Sunni because he had not completed the process required to convert to Shia Islam and therefore still considered himself a Sunni Muslim.
28.The applicant claims to have travelled to Australia in order to escape persecution in Pakistan from Sunni Muslims, including his father, due to his intention to convert to Shia Islam. I consider that the applicant would have been aware that Sunni Islam is not the predominant faith in Australia. His actions tend to suggest that he believed that he would not be persecuted on this basis in Australia. In these circumstances, I am not persuaded that the applicant did not mention his claimed fears related to his desire to convert to Shia Islam in the entry and biodata interviews due to any fear of persecution of a similar type in Australia.
(f)accepted the limitations of arrival interviews, but found that at the arrival interview the interviewer had asked the applicant a number of questions and found it difficult to understand why the applicant would have mentioned the claimed loss of his home in 2008 as a result of Taliban actions but failed to reference his father’s recent threat to kill him if he converted to Islam or his fears that he would be killed by his relatives or Sunni extremists if he converted to Shia Islam (which was, the applicant said, the main reason for his departure from Pakistan) (at [29]);
(g)noted that there no medical evidence to suggest that the applicant’s mental health had had any impact on his participation in any of the arrival interviews (at [30]). Rather, the recording suggested that the applicant responded appropriately (and largely unhesitatingly) to the questions asked. Accepting that the journey to Australia was difficult and that the applicant was young at the time of the interview (he was 18), the IAA nonetheless found that the applicant had participated “effectively” in the arrival interview (at [31]);
(h)accepted that the applicant did not understand the process of applying for a visa and may not have been aware that his responses could be considered in the context of a protection application. However, the IAA did not consider that these matters represented an adequate explanation for the applicant’s omission of any reference to his fears relating to his intention to convert to Shia Islam, or his father’s threat that he would kill him if he converted to Shia Islam. The IAA considered that, if the applicant had a genuine interest in the Shia faith and had left Pakistan mainly because he feared he would be killed by his father, other members of his family, or Sunni extremists, if he did convert, he would have referred to these matters when asked about his reasons for leaving Pakistan (at [32]);
(i)stated:
33.The applicant claims that he developed his interest in Shia Islam through Shia friends at school. He said many of his friends in Parachinar were Shia Muslims. He states that his Shia friends lent him Shia books. The applicant claims to have completed five years of school in Parachinar in Shia-dominated Upper Kurram Agency. He claims he moved to Sadda in Sunni-dominated Lower Kurram Agency at approximately 12 years of age, and completed no further schooling. The applicant states that his family moved to Sadda to escape sectarian violence in Parachinar. Given the security situation and sectarian tensions in Parachinar, and in Kurram Agency more broadly, at that time, I consider it highly unlikely that the applicant remained in contact with his former Parachinar school friends after 2008. It is therefore somewhat surprising that the applicant sustained his claimed strong interest in Shia Islam for a further five years from the age of 12 in Sadda.
(j)summarised the applicant’s evidence about when he converted to Shia Islam (at [34]). The IAA noted that the delegate had put to the applicant that he was able to practice as a Shia in detention, asked if he had mentioned this to the Department and noted that he had stated that he had not. The applicant explained that he did not take up Shia activities earlier and he continued to read about the practice online. He claimed that he attends Shia activities in Perth largely comprised of praying (at [35]); and
(k)found the applicant’s evidence regarding the process and timing of his conversion to Shia Islam to be vague. The IAA noted that the applicant did not indicate the name of the Shia scholar who he said had assisted with his conversion and the date and location of this was unclear. There was no documentary evidence of the applicant’s conversion or religious activities provided to the delegate (at [36]). Given that the applicant had left Pakistan to convert, the IAA expected that the applicant to have produced more than the vague and limited evidence he provided in relation to his conversion (as it would have been of great significance to him) (at [37]).
The IAA then concluded as follows:
38.Considered separately, the various matters discussed may not give rise to significant doubt as to the veracity of the applicant’s claims. However, when considered together they lead me to question the veracity of the applicant’s claims regarding his interest in, conversion to, and involvement in Shia Islam. Having carefully considered the evidence before me, I do not accept that the applicant has converted to Shia Islam. Nor do I accept that while in Pakistan he wished to convert to, or had any interest in, Shia Islam, or that his father punished or threatened to kill him for any reason related to his claimed interest in Shia Islam. I consider that the applicant fabricated his claims in this regard in order to strengthen his claims for protection. I am willing to accept that in Australia, he has attended a very small number of Shia religious events, however, I do not accept that he did so due to any genuine interest in Shia Islam. Instead, I consider that he attended these events only to strengthen his claims for protection.
39.During the SHEV interview, the applicant indicated that Pakistani people in Australia had told his family in Pakistan about his conversion to Shia Islam. As mentioned, I do not accept that the applicant has converted to Shia Islam. Neither do I accept that people in Australia perceived the applicant to have converted to Shia Islam due to his very limited attendance of Shia religious events, that they told any person in Pakistan that the applicant had converted to Shia Islam, or that the applicant’s very limited attendance of Shia events was communicated to any person in Pakistan, including the applicant’s family members and relatives.
The IAA then considered the applicant’s claim that his family home had been destroyed and that the applicant’s family had had to relocate. The IAA:
(a)noted that the applicant had stated that the Taliban burned his home down during the entry interview. However, in his visa application the applicant had only stated that the sectarian violence led his family to move (at [40]);
(b)had some concerns as to the veracity of the applicant’s claims to have lived in Parachinar as he had not provided any documentation to support this claim and he had indicated that some of his siblings were born in another area when he claimed to be living in Parachinar (at [41]);
(c)considered that the applicant may have fabricated a connection to Parachinar in order to enhance his claims for protection. However, the IAA was prepared to accept that the applicant was resident in Parachinar from his birth until 2007 or 2008 (at [42]); and
(d)accepted that the applicant’s family moved from Parachinar to their village in order to escape sectarian violence. However, as the applicant did not further raise the burning of his home and the independent information indicated that the Taliban were engaged in the conflict on the side of Sunni residents, the IAA did not accept that the applicant’s former family home was burned down by the Taliban (at [43]).
In relation to the activities of the applicant’s relatives the IAA:
(a)noted that the applicant had claimed that members of his extended family were associated or involved with the Taliban and/or are engaged in a feud with members of the Shia Turi tribe. The IAA noted that there was an extensive history of sectarian conflict in Kurram Agency. As a member of a Sunni Pashtun family from Kurram Agency, the IAA considered it plausible that the applicant had relatives who had been involved in conflict with Shia Turi tribesmen and who had supported the Taliban. The IAA considered it to be significant that, when asked about his reasons for leaving Pakistan during the entry interview and during the biodata interview, the applicant did not refer to any fear of Turi tribesmen or other Shia Muslims due to his relatives’ involvement in this conflict (at [44]);
(b)referred to its previous finding that the applicant had participated effectively in the entry interview despite his mental state and was advised properly of what the interview was about (at [45]). The IAA determined that if the applicant did fear harm on the basis of his relatives’ activities and tribal feuds, he would have mentioned this in the entry interview (at [46]);
(c)noted that in his visa application, the applicant claimed that he was particularly at risk of being killed by Turi tribesmen who had declared his tribe to be their enemy because he used to go to school every day. However, it was explained that the applicant had not stated that he or any of his immediate family members were threatened or harmed by Turi tribesmen, or other Shia Muslims, for this or any other reason (at [47]); and
(d)was willing to accept that some of the applicant’s relatives had been involved in conflict with Turi and other Shia Muslims in the past and that some of the relatives, as Sunni Pashtuns in Kurram, were supporters of the Taliban. However, the IAA was not satisfied that the applicant’s relatives were involved in a feud with Turi tribesmen or other Shia Muslims as a result of which Turi tribesmen or other Shia Muslims would have declared the applicant’s entire tribe to be their enemy. The IAA did not accept that, at the time the applicant left Pakistan, “he was of any particular adverse interest to Turi tribesmen or any other Shia Muslims due to his relatives’ activities, his membership of his Sunni tribe, or for any other reason” (at [48]).
The IAA then outlined the relevant refugee assessment criteria (specifically, ss 5H(1) and 5J of the Act and their respective requirements) (at [49]-[50]) and determined as follows:
51. The applicant claims to fear harm from members of his family, and members of the Taliban and other Sunni extremist groups, because he has converted from Sunni to Shia Islam since his arrival in Australia and will be seen as an apostate. As discussed, I do not accept that the applicant has converted to Shia Islam, or that he has any genuine interest in or commitment to the Shia faith. I have not accepted that he had any interest in Shia Islam in Pakistan, or that he was punished or threatened by his father due to any interest in Shia Islam. I am satisfied that the applicant will not engage in any Shia religious activities on his return to Pakistan. I have accepted that the applicant engaged in a very small number of Shia religious activities in Australia for the purposes of strengthening his claims for protection. I am not satisfied that the applicant engaged in Shia religious activities in Australia for any reason other than to strengthen his claims for protection. Therefore, pursuant to s.5J(6) of the Act, I have disregarded this aspect of the applicant's conduct for the purpose of assessing whether the applicant has a well-founded fear of persecution for one of the reasons set out in s5J(l)(a).
52.The applicant claims that he may be harmed by members of the Shia Turi tribe who have sworn to avenge the killing of members of their tribe by the applicant's relatives and declared the applicant's tribe to be their enemies. I have accepted that some of the applicant's relatives have been involved in conflict with members of the Shia Turi tribe in the past, although I have not accepted that Turi tribesmen or any other Shia Muslims have declared the applicant's entire tribe to be their enemy as part of a feud with members of the applicant's family. I have found that the applicant was not of any particular adverse interest to members of the Turi tribe, or to any other Shia Muslims in Kurram Agency, at the time he left Pakistan. As discussed, the applicant does not claim that he experienced any threats or harm from members of the Turi tribe or other Shia Muslims in Kurram Agency. The information before me indicates that sectarian violence in Pakistan, including in FATA, has generally declined significantly in recent years, although a spate of serious attacks targeted Shia Muslims in Parachinar in early 2017. The applicant has not referred to any harm or threats of harm to any members of his immediate family in Sadda on the basis of his other relatives' involvement in conflict with Shia Muslims, or on any other basis, since he left Pakistan.

The IAA noted that the delegate had also considered whether:
(a)the applicant may face harm as a Pashtun (but noted this was not raised by the applicant). The IAA discussed the country information in this regard and noted that, according to DFAT country information, “Pashtuns do not face a higher risk of violence than other groups based on their ethnicity” (at [53]); and
(b)the applicant might face harm returning to Pakistan after living and seeking protection in a western country. The delegate found there was no independent evidence to suggest that the applicant would be targeted as a failed asylum seeker (at [54]).
The IAA then discussed the applicant’s fear of harm due to “ongoing sectarian violence” and “extremist groups” and considered steps taken by the Pakistani government to reduce violent attacks in Pakistan (at [55]). The IAA determined that, whilst there had been a reduction in violent incidents from 2015 to 2016, violence in Federally Administered Tribunal Areas remained prevalent (at [56]).
Based on the evidence before it, the IAA determined that the security situation in Pakistan continued to improve and that the Government was committed to reducing violence. Further, it determined that militant groups were focussing their attacks on “government and sectarian targets” (at [57]).
The IAA disagreed with the delegate regarding the chance of harm to the applicant in the Kurram Agency, finding as follows:
58.The delegate found that there was a real chance of harm to the applicant in Kurram Agency, referring in particular to information about recent sectarian violence targeting Shia Muslims in Upper Kurram Agency. I have reached a different conclusion. I have accepted that the applicant lived in Parachinar until approximately 2008 but then moved with his family to Sadda in Sunni-dominated Lower Kurram Agency, where he lived until his departure from Pakistan in 2013. His parents and siblings continue to reside in Sadda. I am satisfied the applicant will return to Sadda to live with his family on his return to Pakistan. I have found that the applicant is a Sunni Muslim. I consider the chance of harm to him as a Sunni Muslim in Sadda in Lower Kurram Agency to be quite different to that faced by Shia Muslims in Shia-dominated Parachinar in Upper Kurram Agency. There is nothing about the applicant's profile to suggest that he would be of any particular adverse interest to Sunni extremist groups. I note that I have not accepted that he was of any adverse interest to the Taliban or any other Sunni extremist group for any reason at the time he left Pakistan, and I do not consider that he would be of any future adverse interest to any such group on his return to Pakistan on the basis of his status as a person who have lived and sought protection in Australia, a western country.
59.DFAT reports that Pakistani citizens who return to Pakistan involuntarily and are travelling on emergency travel documents are likely to attract attention from Pakistani authorities upon their arrival. People in this situation are typically said to be questioned upon arrival to ascertain whether they left the country illegally, are wanted for crimes in Pakistan, or have committed any offences while abroad. Those who left Pakistan on valid travel documentation and have not committed any other crimes are typically released within a couple of hours. The applicant left Pakistan from Islamabad airport, using his own validly issued Pakistani passport. I am satisfied that he left Pakistan legally. There is no evidence before me to suggest that the applicant has committed, or is wanted in relation to, any offence in Pakistan or Australia. I accept that he may be briefly questioned by Pakistani authorities on his return to Pakistan regarding his manner of departure from Pakistan and his commission of any offences in Pakistan or abroad, but I am not satisfied that any brief questioning for this purpose amounts to serious harm.
The IAA was not satisfied that the applicant would face harm in Lower Kurram Agency. Nor was it satisfied that “any combination of the applicant’s circumstances would combine to expose him to a real chance of serious harm in Kurram Agency” (at [60]).
On the basis of the above, the IAA concluded that the applicant did not meet the relevant refugee criterion (at [61]).
The IAA then assessed the complementary protection criterion (at [62]-[63]) and made findings as follows:
64.I have not accepted that the applicant has converted to the Shia faith. I have found that he remains a Sunni Muslim. I have found that he will not engage in any Shia religious activities on his return to Pakistan. I do not accept the applicant had any genuine engagement with Shia Islam in Australia. I have accepted that he attended a very small number of Shia religious events in Australia solely for the purpose of strengthening his claims for protection. I have not accepted that he was perceived by any person in Australia to be a convert to Shia Islam due these very limited activities. Neither have I accepted that any person in Australia has told any person in Pakistan that the applicant has converted to Shia Islam, or communicated to any person in Pakistan the applicant's limited involvement in Shia activities in Australia. On the evidence before me, I am not satisfied that there is a real risk of harm to the applicant on his return to Pakistan on the basis of his very limited involvement in Shia religious activities in Australia.
65.I have accepted that the applicant may be briefly questioned by Pakistani authorities to check whether he left the country illegally or is wanted for crimes committed in Pakistan or abroad. I am not satisfied that any harm experienced as a result of any such treatment would constitute significant harm for the purposes of s.36(2A). I am not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm as a result of this treatment, should it occur, on his return to Pakistan.
66.I have concluded that the applicant does not otherwise face a real chance of harm in Lower Kurram Agency as a Sunni Pashtun, due to his relatives' involvement in conflict with Shia Muslims in Kurram Agency, on the basis that he will be returning to Pakistan having sought protection and lived in Australia, as a result of the security situation in Lower Kurram Agency, or as a result of any combination of these matters. As ‘real risk’ and ‘real chance’ involve the application of the same standard, I am also not satisfied that the applicant would face a real risk of significant harm for these reasons.
The IAA determined that the applicant did not meet the complementary protection criterion (at [67]) and, on the basis of the above, affirmed the delegate’s decision not to grant the applicant the visa he was seeking.
PROCEEDINGS IN THIS COURT
In his application for judicial review filed on 8 November 2018, the applicant provides two grounds of review, as follows:
1. The Immigration Assessment Authority did not afford me procedural fairness.
2. The Immigration Assessment Authority applied the wrong legal test.
The applicant was given an opportunity to file an amended application, any affidavit evidence and written submissions. No further materials were filed.
The materials before the Court thus include the application for judicial review and supporting affidavit by the applicant filed on 8 November 2018, a Court Book numbering 316 pages (marked as Exhibit 2) and written submissions filed by the Minister on 3 August 2021.
This matter was initially listed for a hearing on 16 August 2021 at 10.00am. On the morning of the hearing, the Minister’s representative emailed Chambers advising that the applicant had informed the Minister that he “[was] (or [would] be) seeking an adjournment”. The applicant also advised that he had been instructed to self-isolate as a result of potentially coming into contact with a person carrying the COVID-19 virus. In support of that request, the applicant provided a copy of an email from the WA Department of Health and a GP Mental Health Care Plan (correspondence and supporting evidence tendered and referenced as Exhibit 1).
Prior to the hearing, the Minister’s representative had indicated that the Minister would oppose the adjournment request on the basis that the applicant could participate in the hearing via electronic means. The applicant appeared before the Court on 16 August 2021 via video link, without legal representation and was assisted by a Pashto interpreter.
The applicant told the Court that his underlying mental health condition had been exacerbated by the email received from the WA Department of Health, having to undergo testing in relation to COVID-19 and having to self-isolate. The Minister’s representative, after hearing from the applicant, told the Court that, on the basis of the information provided by the applicant, the Minister would no longer oppose the adjournment.
The Court considered that, where the applicant has an underlying mental health condition and had been required to isolate (resulting in additional stress), it was appropriate to grant the applicant an adjournment. The matter was, accordingly, adjourned to 28 September 2021 at 10.00am.
The Court also noted that the applicant was potentially affected by the Court’s data breach of May 2020 and that the applicant had been notified by the Court of that potential breach on 22 May 2020. In those circumstances, the Court issued orders assigning the applicant a new pseudonym. The matter was also assigned a new proceeding number. Further, the Court made orders prohibiting the publication of the applicant’s original pseudonym or proceeding number (other than to the parties and to the Court).
On 28 September 2021, the applicant appeared before the Court – again, without legal representation. He was assisted by a Pashto interpreter. At the commencement of the hearing, the Court confirmed that the applicant had received a copy of the Court Book and the Minister’s written submissions.
Noting that the applicant was unrepresented and that the legal issues in matters of this sort are often complex, the Court raised concerns with the content and quality of the Minister’s written submissions. Counsel for the Minister agreed, asked that the matter again be adjourned and sought leave to file further written submissions.
The Court granted leave and made orders for the filing of further submissions.
The Minister filed further written submissions and a further list of authorities with the Court on 19 October 2021.
On 17 January 2021, the applicant appeared before the Court via video link – again, without legal representation. He was again assisted by a Pashto interpreter.
Noting the remarks of the Federal Court in DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784 at [8] that it is usually appropriate for an unrepresented party to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review), the Court provided the applicant an opportunity to outline orally what he thought the IAA “did wrong”.
To assist the applicant, the Court explained to him what this Court can and cannot do. The Court explained that its task is limited to assessing whether the IAA fell into jurisdictional error. The Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, they most commonly include, but are not limited to, the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24 at [207]-[208];
(e)where the decision-maker fails to consider the entirety of an applicant’s claims (or integers of the claims) made: Minister for Immigration & Citizenship v SZKRT [2013] FCA 317 at [111];
(f)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2] (“SZRUI”); and
(g)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS [2010] HCA 16 at [131]; Minister for Immigration & Citizenship v Li [2013] HCA 18 (“SZMDS”) at [26]-[28]; Minister for Immigration & Border Protection v Singh [2014] FCAFC 1 (“Singh”) at [44].
It was also explained to the applicant that this Court cannot review the merits of the IAA’s decision or grant him the visa that he seeks. Rather, the role of the Court is restricted to determining if the IAA made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the applicant indicated that he had two main concerns.
The applicant’s first concern essentially amounted to a claim of bias. Although not entirely clear, the applicant seems to believe that the reason the IAA did not consider the “additional material” filed by his agent was because the IAA had already “made up its mind”.
The applicant’s second concern (again, not entirely clear) seems to be that the IAA did not consider “information on the ground at the time”. The Court assumes that this is a reference to country information and evidence more generally about the changing situation in Pakistan.
The applicant also asked the Court to acknowledge that the “situation [in Pakistan] had changed”.
The Court will address the applicant’s oral submissions below.
CONSIDERATION
The applicant’s grounds are not particularised and do not identify the reasons the applicant is asserting that he was denied procedural fairness. The applicant also has not, for example, identified why he believes that the IAA applied the “wrong legal test” or indeed what ‘test” he is referring to.
Noting that the applicant is self-represented, the Court will take a broad view of the grounds of review as articulated and determine for itself whether any error has occurred: MZAIB. The Court was greatly assisted in this regard by the detailed written submissions filed by the Minister on 19 October 2021 and by oral submissions from Ms Laura Groves on behalf of the Minister.
Ground 1
Ground 1 states:
1. The Immigration Assessment Authority did not afford me procedural fairness.
As outlined above, the IAA’s procedural fairness obligations (as set out in Division 3 of Part 7AA of the Act) are unusually strict.
The Court notes that ss 473GA and 473GB of the Act have no application in this case.
The Court has reviewed the IAA’s decision in detail and, for the reasons that follow, has determined that the IAA in this matter did comply with its procedural fairness obligations.
The IAA is required to conduct its review “on the papers”. That is, the review must generally be conducted “without accepting or requesting new information” (see s 473DB(1)(a) of the Act) and “without interviewing the … applicant” (see s 473DB(1)(b) of the Act). However, as detailed above, the IAA “may invite a person, orally or in writing, to give new information” either “in writing” (see s 473DC(3)(a) of the Act) or “at an interview” (see s 473DC(3)(b) of the Act).
Although not clear, as identified by the Minister in written submissions filed on 19 October 2021, it is arguable that the applicant raises three concerns in relation to the IAA’s application of s 473DC of the Act. Specifically, the applicant appears to allege that the IAA acted unreasonably by:
(a)declining the applicant’s request to be invited to a hearing;
(b)not extending the time for the applicant to provide further submissions and information; and
(c)not requesting that the applicant provide “correct submissions”.
These concerns are addressed below.
Whether the IAA acted unreasonably in declining the applicant’s request to be invited to a hearing
The IAA is not obliged to invite an applicant to provide information or to invite the applicant to attend an interview: s 473DB of the Act. However, the IAA has a discretion to obtain new information (including by inviting the applicant to attend an interview): s 473DC of the Act.
Section 473DC of the Act provides:
(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.
…
(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.
One question the applicant arguably poses here is whether the IAA acted unreasonably by refusing to grant him a face to face interview.
In relation to jurisdictional error on the basis of “unreasonableness”, the Court is guided by the principles outlined in SZMDS, as follows:
131What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
The Court is also guided by the overview outlined in Singh, as follows:
44In order to understand how the standard of legal unreasonableness is to be ascertained, it is important to see where the concept fits in terms of the court’s supervisory powers over executive or administrative decision-making. In Li, the judgments identify two different contexts in which the concept is employed. Legal unreasonableness can be a conclusion reached by a supervising court after the identification of an underlying jurisdictional error in the decision-making process: Li at [27]–[28] per French CJ, at [72] per Hayne, Kiefel and Bell JJ; compare Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; 266 ALR 367; 115 ALD 248; [2010] HCA 16 at [39] per Gummow ACJ and Kiefel J. However, legal unreasonableness can also be outcome focused, without necessarily identifying another underlying jurisdictional error. The latter occurs in what French CJ (in Li at [28]) calls “an area of decisional freedom”: it has the character of a choice that is arbitrary, capricious or without “common sense”. See also the plurality at [66] referring to an area within which a decision-maker has a genuinely free discretion. The plurality in Li described this as an inference to be drawn because the court cannot identify how the decision was arrived at. In those circumstances, the exercise of power is seen by the supervising court as lacking “an evident and intelligible justification”. Gageler J also uses language suggestive of review for legal unreasonableness being concerned with an examination by the supervising court of the outcome of the exercise of power (in Li at [105]):
It is, of course, true that, as a measure in fact of time, space, quantity and conduct, reasonableness is a concept deeply rooted in the common law: and so, in such cases, is the power of a court to say whether a particular decision of that fact is or is not within the bounds of reason”: Giris Pty Ltd v FCT (1969) 119 CLR 365 at 383–384; [1969] ALR 369 at 380; [1969] HCA 5. Review by a court of the reasonableness of a decision made by another repository of power “is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process” but also with “whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”: Dunsmuir v New Brunswick [2008] 1 SCR 190 at [47].

In this matter, the applicant asked the IAA to invite him to a hearing (CB 175):
…which would provide an opportunity for the applicant to articulate his claim because the applicant claims that the delegate of the Minister asses with the case with a closed or biased mind.
(transcribed verbatim)
The IAA considered that request and concluded as follows:
19.The applicant’s representative and the applicant request that the IAA conduct a hearing to allow the applicant to provide evidence because the delegate assessed the applicant’s case with a closed or biased mind.
20.The applicant and his representative do not provide any specific example of how the claimed approach of the delegate is said to have affected the applicant’s ability to present his claims. Neither do they explain what further information the applicant wishes to provide in an interview or why the applicant could not provide any evidence relating to these matters in writing. The applicant was made aware during the SHEV interview that any information the delegate received before he made his decision would be considered. His representative indicated that he would provide a submission following the interview but did not do so. The applicant’s current representative has provided a submission, a statement from the applicant, and two photographs to the IAA.
21.I am satisfied that the applicant has had a proper opportunity to put forward his claims for protection, including in the submission and statement provided to the IAA. I note that I am conducting a fast-track review under the Act, and that the IAA is not obliged to invite an applicant to provide new information. In all of the circumstances, I am not satisfied the circumstances of this case require me to invite the applicant to provide new information.
The applicant provided no assistance to the Court in relation to this issue. This is not a criticism. The applicant was unrepresented and the statutory context and jurisprudence canvassed here is complex. In the circumstances, however, the Court is guided by the detailed submissions provided by the Minister’s solicitor (filed on 19 October 2021) who, before this Court, stands in the shoes of a model litigant.
Relevantly, the Court notes the Minister’s summary of why the IAA declined to invite the applicant to a hearing, as follows:
(a)the applicant had not explained how the delegate’s approach had affected his ability to present his claims;
(b)there was no indication as to what further information the applicant wanted to provide;
(c)the applicant was represented before the delegate and was made aware that he could provide any further information after the hearing if he wished to do so. He did not;
(d)the applicant had provided a submission, statement, supporting statutory declaration and photographs to the IAA; and
(e)the IAA was satisfied, based on the above, and noting there was no obligation to invite an applicant to attend a hearing, that the applicant had been given a proper opportunity to present his claims and it would not invite him to attend an interview.
Having assessed the IAA’s approach in this regard, the Minister contends that there was no unreasonable failure by the IAA to exercise the discretion in s 473DC(3) of the Act:
9.There was no unreasonable failure to exercise the discretion in s 473DC(3). The reasons of the Authority are logical and rational. Any reasonable person, aware of the limited nature of the fast track scheme, would not consider that the Authority was unjustified in failing to invite the applicant to attend a hearing.
10.While it is the case that the delegate found that the applicant did face a chance of serious harm in Sadda and therefore he would have to relocate, whereas the Authority found that the applicant would not face a chance of serious harm in Sadda, the mere fact that the Authority took a different view to the delegate does not require the exercise of the discretion in s 473DC(3).
11.Rather, where there is serious doubt about the accuracy of what occurred before the delegate (for example interpretation issues) (DVO16 v Minister for Immigration and Border Protection [2021] HCA 12; (2021) 95 ALJR 375 at [67]- [75]), or the Authority does not have information as the delegate never explored an issue, but the applicant is likely to have that information which is necessary to complete the review (Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12 ), or where the Authority rejected the applicant’s account wholly or substantially on the basis of its own assessment of the manner in which the account was given and contrary to an acceptance of that account by the delegate (ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; (2020) 94 ALJR 928), there may be an unreasonable failure to exercise the discretion in s 473DC(3). No such circumstances arise in the current case. Rather:
11.1.There is nothing to suggest that the applicant did not have the opportunity to present his claims completely and entirely before the delegate in relation to his chance of harm in Sadda. The applicant had provided no evidence as to how the delegate’s approach had influenced his ability to present his claims. In the absence of this, it was open to the Authority to consider that there was nothing to warrant a further interview.
11.2.There was no information that the Authority did not have, that the applicant might have, which required the exercise of the discretion in s 473DC(3). Notably, the submissions the applicant provided contained country information that applied to Pakistan generally.
11.3.The basis of the applicant’s request appeared to be for a second opportunity to present his claims because the delegate determined his application adversely. If the Authority was to oblige such requests, the nature of a Part 7AA review, and the purpose of s 5AAA, would be defeated.
11.4.The Authority’s assessment in no way turned on the way the applicant had presented his claims. Rather it was on the basis of inconsistencies in the evidence and an evaluation of the country information.
The Court agrees with the Minister in this regard. Based on the materials before the Court, it cannot be said that the IAA’s refusal to invite the applicant to attend a hearing was illogical, irrational or unreasonable. Relevantly, the applicant was provided sufficient opportunity to present his claims before the delegate. He did not raise any issues in relation to the delegate’s conduct at any point in time. Nor did he suggest that the delegate’s approach made it difficult for him to present his case. In those circumstances, it was open to the IAA to form the view that there was no need to hold a further interview. Importantly, the IAA determined, on the evidence, that the applicant seemed to be requesting a further hearing to present his claims again and not for the purpose of addressing any bias concerns.
In the circumstances, it was open to the IAA to proceed without inviting the applicant to an interview. That decision, contextually, was entirely reasonable. While this Court might have decided differently, that is not the test on review. It cannot said be said here that the IAA’s decision in this regard has the character of a choice that is arbitrary, capricious or without “common sense” or that it lacked “an evident and intelligible justification”. Rather, the decision “falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”: Dunsmuir v New Brunswick [2008] 1 SCR 190 at [47].
Whether the IAA acted unreasonably by not extending the time for the applicant to provide further information.
In relation to this issue, the Court notes (and adopts) the Minister's summary of the relevant correspondence between the applicant and the IAA. That summary (provided at [13] to [17] in written submissions by the Minister filed on 19 October 2017) with minor alteration provides, relevantly, as follows.
On 20 December 2017, the applicant was advised that his matter had been referred to the IAA (CB 149-161). In the correspondence (by way of the relevant practice direction), the applicant was advised that he had 21 days within which to provide any submissions or new information to the IAA (CB 159).
On 9 January 2018, the applicant requested an extension of time within which to provide material to the IAA (CB 163). The IAA granted an extension until 16 January 2018 (CB 164).
On 17 January 2018 at 8:04am, the applicant's migration agent emailed the IAA advising that they had recently received instructions and requested a further extension of time until 19 January 2018 (CB 165).
Although no further extension of time had been granted, the agent nonetheless provided the following additional documents in that correspondence:
(a)a statement of the applicant (CB 170-172); and
(b)a statement from the applicant's housemate (CB 173).
On 17 January 2018, the following documents were also sent to the IAA by the applicant’s migration agent:
(a)
a 99-page submission (sent by the applicant’s migration agent at 10:02am)

(CB 174-273);
(b)the documents in the applicant’s case file before the IAA were provided to the applicant’s migration agent by the IAA at 2:50pm; and
(c)duplicate photographs of the applicant were sent by the applicant’s migration agent at 3:23pm (CB 282-284).
The IAA advised the applicant that the request for additional time had been refused at 3:46pm (CB 285).
The IAA stated:
Your request has been considered, but not granted in this case. Under the Practice Direction for Applicants, Representatives and Authorised Recipients, submissions should be given to the IAA within 21 days of the date on which the case was referred to us by the Department. As the case was referred on 20 December 2017 this 21 day period ended on 10 January 2018 and the IAA is not satisfied that the circumstances warrant extending the time in this case.
The applicant's migration agent again requested further time at 6:31pm on the same day (CB 286). The agent stated:
We refer to the above. We again submit our request for an extension is reasonable because we recently received instruction to act in the matter and we need to review the file to act in the best interest of the applicant. In this regard we refer to the decisions in Minister for Immigration and Citizenship v Li [2013] HCA 18 (8 May 2013) and Rathor v Minister for Immigration & Anor [2014] FCCA 10 (7 February 2014) and Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 (4 February 2014).
On 19 January 2018, the IAA responded (CB 289) as follows:
As previously advised, your request has been considered, but not granted in this case. Under the Practice Direction for Applicants, Representatives and Authorised Recipients, submissions should be given to the IAA within 21 days of the date on which the case was referred to us by the Department. As the case was referred on 20 December 2017, this 21 day period ended on 10 January 2018.
Again, without assurance from the applicant in relation to this history and his concerns generally, the Court notes the Minister’s detailed written submissions in relation to whether the IAA’s refusal to grant further time was unreasonable, as follows:
18.In BUU18 v Minister for Home Affairs [2019] FCA 457, the Authority refused to grant an extension to provide submissions. That refusal was in the exact terms used here (at [18.4]). In BUU18, the applicant's migration agent had been suspended and the applicant was requesting additional time to find a legal representative. His Honour Justice Perram accepted that any submission could have contained new information. Nonetheless, his Honour, after referring to the statutory regime, stated as follows (at [22]):
Notwithstanding these reservations, cl 22 appears to contain an assumption that the Authority may extend the 21 day deadline in cl 21. Assuming that an assumption in a clause in a practice direction can be a source of statutory authority, I do not think it can be said that the refusal in this case was unreasonable or irrational in the relevant sense. One can imagine perfectly sensible reasons why a decision maker in the position of the Authority might have refused to extend the time. Consequently, one cannot say that the decision to do so is unreasonable on its face. Nor can I discern in the refusal some process of reasoning which defies comprehension. This argument therefore fails.
19.In the Minister's submission, the same reasoning applies here and there was nothing unreasonable in the Authority declining to extend time to provide a further submission. In particular:
19.1.The applicant had already been granted additional time to provide information by the Authority (CB 164).
19.2.Section 473FB(5) of the Act states that the Authority is not required to accept new information or documents (such as submissions) from a person if the person fails to comply with a relevant direction that applies to the person. It was well within the area of decisional freedom for the Authority to refuse an extension in the circumstances.
19.3.The applicant had provided further new information to the Authority (including a statement, supporting statutory declaration and photographs). The applicant had also provided detailed written submissions. That is, the applicant was not deprived of an opportunity to put before the Authority further information.
20.In the above circumstances, there was nothing unreasonable in the Authority acting as it did.
There is much force in these submissions and, for the reasons that follow, the Court agrees with the Minister in this regard.
The applicant was given a copy of the relevant Practice Direction by the IAA (CB 157-161) (provided pursuant to s 473FB of the Act). That document outlines the IAA’s core functions and operations and details how the conduct of the review will be undertaken by the IAA. Relevantly, the applicant received notice that submissions and further material could be provided to the IAA within 21 days of his case being referred to the IAA (CB 159).
The applicant did not comply with the Practice Direction. Despite that, the applicant’s representative provided additional information in the form of a statement from the applicant, a statutory declaration from a friend residing at the applicant’s address, written submissions and photographs. The consideration of the IAA’s approach to that new information will be discussed below in relation to ground 2. In the circumstances, however, and noting what the Court has said above in relation to the IAA’s refusal to give the applicant a hearing, it cannot be said here that the IAA’s approach in this regard defies logic or any assessment of unreasonableness.
Whether the IAA acted unreasonably in not requesting that the applicant provide “correct submissions”
The IAA notes some inconsistencies and potential errors in the submissions provided by the applicant’s representative. In that regard, the IAA states:
5.…I note that the submission contains numerous references to ‘our clients’. For example, it states ‘We submit that as our clients are Shias with a significant adverse profile due to their background, as a result they will face real risk of significant harm if they now returned to Pakistan’. The applicant is a single male. This raises some question as to the extent to which the submission relates to the applicant’s individual claims for protection…
The “errors” identified by the IAA can be summarised as follows:
(a)reference is made to “applicants” and “primary applicant” (noting that there were no other persons included in the application) (CB 176 and 177 at [3], CB 203);
(b)reference is made to clients (CB 211 at [44]; CB 272 at [60] & [63]); and
(c)reference is made to an ‘original submission’ and ‘further submissions on persecution’ – yet only one submission was provided (CB 226 and 272 at [63]).
The question of whether the IAA erred in not finding that there were “exceptional circumstances” that required it to assess the submission in question is addressed further below in relation to ground 2.
A first question arises, however, as to whether, given the errors identified by the IAA in the submission provided, the IAA should have exercised its powers under s. 473DC of the Act and requested further submissions (ie, new information) from the applicant’s agent? In effect, this would have given the agent “further time” to provide the submissions he wanted to provide to the IAA.
This issue was considered by the High Court in Minister for Home Affairs v DUA16 [2020] HCA 46 (“DUA16”).
In DUA16, the applicant (DUA16) had engaged a migration agent to prepare submissions and an unrelated applicant (CHK16) had engaged the same agent to also prepare submissions. The submissions provided in DUA16 included information which related to DUA16, however, it also included information which related to another (unrelated) applicant. The IAA concluded that the information referencing another applicant was included in error.
The submissions prepared for CHK16 on the other hand, concerned a completed different applicant. The IAA disregarded information concerning the personal circumstances of the different applicant but had regard to generic information contained in the submissions.
In DUA16, the High Court held (emphasis added):
28The circumstances of CHK16’s case are extreme. The Authority was aware that CHK16 intended to provide submissions and that the submissions might contain new information. But it was apparent, as the Authority realised, that the submissions provided by the agent concerned a different person and that none of the personal information related to CHK16. As the Authority was aware, this was the only opportunity that CHK16 would have to provide his own new information, which could be of considerable importance. On CHK16’s case before the delegate, the consequences of refusal of his protection visa could place his life at risk. A request from the Authority for the correct submissions and CHK16’s correct personal information would have been a very simple matter. The Authority had, itself, indicated in its Practice Direction that submissions that were too long would be returned with an opportunity given to provide new submissions. These circumstances reflect the observation of six members of this Court in Minister for Immigration and Citizenship v SZIAI:
“The failure of an administrative decision-maker to make inquiry into factual matters which can readily be determined and are of critical significance to a decision made under statutory authority, has sometimes been said to support characterisation of the decision as an exercise of power so unreasonable that no reasonable person would have so exercised it.”
29The legal unreasonableness of the failure by the Authority to get new information by requesting the correct submissions pursuant to s 473DC is plain when the alternative approach taken by the Authority is considered. Rather than taking the simple route of asking for the correct submissions, consistently with its own procedures for returning submissions that are too long, the Authority filleted the submissions that plainly concerned the wrong person into generic and non-generic information. The Authority then treated the generic information in the submissions concerning another person as though the information had been correctly provided in relation to CHK16's circumstances. On no view could that have been a reasonable course to take.
…
34DUA16's case is different. In DUA16's case it was not legally unreasonable for the Authority to fail to exercise either its powers under s 473DC to get new information or its powers in the general conduct of the review to get new submissions. The conclusion that the Authority reasonably drew from the submissions with which it was presented, and by having regard to the review material, was that a small amount of the information had been included by mistake. The Authority disregarded these errors and, moreover, pointed out that the requirements in s 473DD of the Migration Act for consideration of new information had not been met. The statutory context and the high threshold of legal unreasonableness precludes a conclusion that it could be legally unreasonable for the Authority to fail to get new information in light of what it reasonably identified as errors in submissions. It was reasonable for the Authority to disregard that information and to explain, in the alternative, why the information could not be considered even if it had not been included by mistake.

Having assessed the factual background in DUA16, the Minister seeks (in written submissions filed on 19 October 2021) to distinguish the facts of this matter from those seen in DUA16, as follows:
26.Here, the Authority had some concerns about the extent to which the submissions related to the applicant’s circumstances. However, the Minister submits that this matter is distinguishable from the circumstances of CHK16 in DUA16 for the following reasons:
26.1.Unlike in DUA16, ‘new information’ that was personal to the applicant (ie, not about another person) was provided by the migration agent to the Authority and the Authority had regard to that information. That is, the information that the applicant wished to provide was provided.
26.2.There was some information in the submissions here which clearly related to, and was personal to, the applicant. For example, the first page of the submission refers to the delegate being ‘biased’, something which is repeated in the applicant’s own declaration (CB 170 & 175). In the summary of country information, focus is placed on Islamabad, Karachi and Lahore (CB 34 at 211 [43(e) & (h)). Notably, this is the three areas the delegate had identified the applicant could relocate to. As such, the circumstances are more akin to those of DUA16, then CHK16.
26.3.There was no express finding by the Authority that the submissions concerned another applicant (contra DUA16 at [32]). While the Authority had concerns, it considered the submission (save for the country information contained therein as it did not meet the requirements in s 473DD) to be arguments in relation to the delegate’s decision. It was a reasonable inference for the Authority to draw given the substance of the submission took issue with relocation (which was the basis of the delegate’s reasoning) and claims relating to religion.
26.4.The Authority did not ‘fillet’ the submissions into generic and non-generic information. Notably, the submissions did not contain personal information relevant to another applicant (as was the case for both applicants in DUA16). While erroneous references were made, the substance of the submission was otherwise relevant to the applicant’s circumstances and claims (for example, being a Shia and having converted from Sunni Islam).
There is, again, much force in the analysis presented by the Minister in this regard. Notably, the submissions here did not contain personal information relevant to another applicant (as was the case for both applicants in DUA16). Further, while erroneous references were made, the substance of the submission was otherwise relevant to the applicant’s claims and the factual background set out by him. As stressed by the Minister (at [27]) (arguments with which this Court agrees), even though the IAA here had “concerns” about the submissions, the circumstances here do not arise to the “extreme” level as occurred for CHK16 in DUA16 . At their highest, the errors here are grammatical oversights that reflect a lack of care.
In this matter, it was, contextually, entirely reasonable for the IAA to refuse to exercise the discretion to obtain further submissions from the applicant.
No error arises in this regard.
Ground 2
Ground 2 states:
2. The Immigration Assessment Authority applied the wrong legal test.
The applicant refers to the wrong legal “test”. Without particulars, it is not entirely clear to which test the applicant is referring. However, to assist the applicant, and having heard from him in court, the Court assumes that what is most of concern to the applicant is his view that the IAA should have accepted the “new information” sent to it by his migration agent. In effect, what the applicant is saying is that the IAA incorrectly applied s 473DD of the Act with respect to its consideration of new information.
Consideration of new information pursuant to s 473DD of the Act
The IAA is only able to consider new information in exceptional circumstances. Those circumstances are set out in s 473DD of the Act which provides:
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 this matter, the applicant (through his agent) provided the IAA with the following “new information”:
(a)written Submissions (99 pages which contained new claims, country information and other information);
(b)a statutory declaration of the applicant’s housemate;
(c)an undated statement from the applicant; and
(d)photographs.
The Minister’s written submissions (filed on 19 October 2021) query whether the IAA’s treatment of “new information” sent to it by the applicant’s migration agent is affected by the findings of the High Court in AUS17 v Minister for Immigration and Border Protection (2020) 94 ALJR 1007 (“AUS17”).
AUS17 detailed the approach the IAA must follow when assessing “new information” against the requirements of s 473DD of the Act.
This Court discussed the effect and scope of AUS17 in its recent decision in BEP17 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 81. Relevantly, the Court noted (at [93] to [97]) as follows.
The requirements of s 473DD of the Act are cumulative. That is, an applicant must meet s 473DD(a) of the Act and one of the sub criteria in s 473DD(b) of the Act before the IAA can consider any “new information”. If the applicant does not meet either one of (a) or (b), the IAA cannot consider the information. This is uncontroversial: Plaintiff M174/2016 v Minister for Immigration & Border Protection (2018) 264 CLR 217.
In AUS17, the High Court was concerned with the construction of s 473DD of the Act and the approach the IAA must take in applying s 473DD of the Act – that is, what the IAA must do when assessing new information. Relevantly, the majority of the High Court explained:
10. Section 473DD would be at war with itself, and the purpose of s 473DD(b)(ii) would be thwarted, if the circumstance that there was new information from a referred applicant meeting the description in either s 473DD(b)(i) or s 473DD(b)(ii) were able to be ignored by the Authority in assessing the existence of exceptional circumstances justifying consideration of that new information in order to meet the criterion specified in s 473DD(a).
11.Logic and policy therefore demand that the Authority assess such new information as it might obtain from the referred applicant first against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and only then against the criterion specified in s 473DD(a). If neither of the criteria specified in s 473DD(b)(i) and s 473DD(b)(ii) is met, the Authority is prohibited from taking the new information into account in making its decision on the review. Further assessment of the new information against the criterion specified in s 473DD(a) is redundant. If either the criterion specified in s 473DD(b)(i) or the criterion specified in s 473DD(b)(ii) is met, that is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a). If both the criterion specified in s 473DD(b)(i) and the criterion specified in s 473DD(b)(ii) are met, that too is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a) and which must heighten the prospect of that criterion being met.
12. The result, as has been recognised by the Federal Court in numerous other cases, is that the Authority does not perform the procedural duty imposed on it by s 473DD in its conduct of a review if it determines in the purported application of the criterion in s 473DD(a) that exceptional circumstances justifying consideration of new information obtained from the referred applicant do not exist without first assessing that information against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and then taking the outcome of that assessment into account in its assessment against the criterion specified in s 473DD(a). The nature of the non‑performance of the procedural duty in such a case is not inaccurately characterised as a failure to take account of a mandatory relevant consideration in the purported application of the criterion in s 473DD(a).
Having so determined, the High Court found that the IAA in that matter had indeed erred.
The question that arises here is whether the IAA in this matter has in any way erred in its application of 473DD of the Act.
Written Submissions (99 pages which contained new claims, country information and other information)
As accurately detailed by the Minister in written submissions filed on 19 October 2021 (at [35]-[36]), the IAA’s approach to the written submissions can be summarised as follows.
The IAA noted that that the submissions contained country information in respect of Pakistan (CB 297 at [5]). The Authority was not satisfied that the country information could not have been provided to the delegate prior to the refusal decision and found that it did not contain credible personal information that could have affected the delegate’s consideration of the applicant’s claims (CB 298 at [9]).
The IAA also, relevantly, observed that “[t]he new information in the submission includes references to Administrative Appeals Tribunal (“AAT”) and Refugee Review Tribunal (“RRT”) decisions said to relate to Shia Muslims” (CB 297 at [5] last sentence. (CB 188, 224 at [24]; CB 268 at [53]). The IAA determined that it was not bound by previous decisions of the AAT or RRT, and that each decision of those respective tribunals was “reached following consideration of the particular circumstances of the applicants in those cases” (CB 297 at [6]). Further, the IAA determined that the references to AAT/RRT decisions could have been provided prior to the delegate’s decision and were not personal information that could have affected the consideration of the applicant’s protection claims. Finally, the IAA determined that, as the IAA had not considered it necessary to assess the issue of relocation, there were no exceptional circumstances that could justify consideration of the AAT/RRT decisions.
Here, the IAA noted that it had received a 99 page submission from the applicant’s representative (at [4]-[5]). The IAA had regard to “element[s] of the submission” which addressed the delegate’s decision. The submission also included “a range of new country information” (at [5]).
The IAA then considered the new information contained in the submission. The IAA noted that the submission contained “new claims”, as follows:
7.The submission contains the new claims that the applicant fears harm as a member of ‘one or more’ of the particular social groups ‘Former Sunni who converted to Shia religion’, ‘People holding views against Taliban’s religious and political ideologies’, and ‘Failed Asylum Seeker’. The submission provides little information about the applicant’s claimed membership of these particular social groups. It is unclear how, or whether, the applicant’s claimed fears based on his possible membership of these groups differs from the fears he has previously expressed relating to his claimed conversion to Shia Islam. I note that the delegate considered the chance of harm to the applicant as a failed asylum seeker and it is unclear how or whether the applicant’s claimed possible membership of the particular social group ‘Failed Asylum Seeker’ raises any different issues for consideration. The submission also suggests, without further detail, that the applicant may be targeted by the Taliban due to his ‘religious and tribal background’. The meaning of the reference to the applicant’s tribal background is not clear.
The IAA then outlined the procedural opportunities the applicant had had to detail his protection claims as follows:
8.The applicant set out his claims for protection in his SHEV application of August 2017. He received the assistance of his then representative in preparing this application. His claims were explored during the interview with the delegate conducted on 26 October 2017. His representative was present during this interview. When the delegate asked the applicant whether there were any reasons he feared returning to Pakistan other than those that had been discussed in the SHEV interview and raised in his SHEV application, the applicant referred to his claimed fears as a convert from Sunni to Shia Islam and to the security situation in Pakistan. While the applicant’s then representative indicated that he would provide a written submission following the SHEV interview, the delegate indicates that no submission was received before he made his decision.
The IAA accepted that those claims amounted to credible personal information and otherwise met the requirements of s 473DD(b)(ii) of the Act.
However, the IAA found that:
9.The applicant has not satisfied me that the new claims and other new information in the submission could not have been provided to the delegate before he made his decision. I am not satisfied that the general country information referred to by the applicant is personal information. The AAT and RRT decisions cited in the decision are not said to relate directly to the applicant or any person connected to him, but appear to have been cited on the basis that the facts in those cases are said to be similar to those in the applicant’s case. It is not possible to identify the individuals who are the subject of those decisions. I am not satisfied that they are personal information, and in any event I am not satisfied that they are information that may have affected the consideration of the applicant’s claims. I am satisfied that the new claims are credible information in the sense that they are capable of being believed, and that they otherwise meet the requirements of s.473DD(b)(ii). However, in view of the matters discussed, I am not satisfied that there are exceptional circumstances to justify considering the new claims, or any of the other new information in the submission.
Having assessed the IAA’s approach in this regard, the Minister contends that the IAA’s assessment of the ‘new information’ in the written submissions demonstrates a correct application of the relevant principles.
Relevantly, the Minister’s submissions contend as follows (at [36]):
(a)the IAA first assessed the new information against the criterion in s 473DD(b) of the Act (as per the correct approach endorsed in AUS17. This is apparent from [9] of the IAA’s reasons wherein the IAA confirms that it is satisfied that the new claims meet s 473DD(b)(ii) but not satisfied that exceptional circumstances exist;
(b)the IAA was correct in determining that the new information pre-dated the delegate’s decision and, in the absence of an explanation, that it could not be satisfied that the information could not have been provided prior to the delegate’s decision;
(c)the finding that certain information was not ‘credible personal information’ was correct. Clearly, country information and AAT/RRT decisions are not ‘personal information’ (as per AUS17 at [24]); and
(d)the IAA did not adopt an unduly narrow view of the term ‘exceptional circumstances. As the IAA pointed out, the applicant had a number of opportunities to advance his claims and, further, the new claim did not appear to differ from those already articulated (and which would be assessed). Accordingly, it was open for the IAA to find that there were no ‘exceptional circumstances’ to consider the new claim.
Having assessed the IAA’s approach in this regard, the Court agrees with the Minister that no error arises in relation to the IAA’s consideration of the new information in the submission. The IAA first assessed the submission against the criterion in s 473DD(b) of the Act and then concluded that the new claims and other information provided pre-dated the delegate’s decision and, in the absence of any adequate explanation from the applicant, it could not be satisfied that the information could not have been provided prior to the delegate’s decision. The IAA then concluded (correctly) that the country information provided in the submission was not “credible personal information”. This approach is, jurisprudentially, entirely sound. It also cannot be said that the IAA’s assessment of whether there were exceptional circumstances that would justify assessing the new claim reflects an unduly narrow approach. In context, the applicant had numerous opportunities to advance his claims and, relevantly, the new claims (once assessed) did not, in the IAA’s view, differ from those already articulated.
No error arises in this regard.
Statutory declaration from individual residing at the applicant’s address
The contents of the statutory declaration from an individual living with the applicant is outlined by the IAA at [10] and analysed in detail by the IAA at [13] in its reasons.
Ultimately, although the IAA was satisfied that the statutory declaration met the requirements of s 473DD(b)(i) of the Act, the IAA was not satisfied that there were exceptional circumstances that could justify the consideration of this new information: s 473DD(a) of the Act.
As accurately summarised by the Minister (at [38] in written submissions filed on 19 October 2021), in coming to that conclusion, the IAA:
(a)noted the vague nature of the statutory declaration, including the absence of background information about the author (CB 298 at [11]);
(b)noted that the applicant had been represented throughout the visa application process and that he had not made any post-interview submissions to the delegate (despite being given an opportunity to do so) (CB 299 at [12]); and,
(c)highlighted that, although satisfied that the information could not have been provided to the delegate before the delegate’s decision (because it post-dated the delegate’s decision) had “limited corroborative value” (CB 299 at [13]).
This analysis, the Minister contends, is precisely what is required of the IAA in circumstances such as this.
The Court agrees. As stressed by the Minister at [13], the IAA’s assessment of whether the criterion in s 473DD(b) of the Act were met was entirely orthodox. Once satisfied that this was the case, the IAA then turned its attention to whether exceptional circumstances existed which could justify the IAA considering the information (as required by s 473DD(a) of the Act). Here, as made clear above, the IAA “was not satisfied that there were exceptional circumstances…”. The IAA had “determined that the new information had limited corroborative value in assisting the applicant’s claims”. As such, it carried little weight. In that context, it was entirely open for the IAA to be satisfied that “exceptional circumstances” did not exist.
The IAA correctly assessed the statutory declaration against the requirements of s 473DD of the Act and no error arises in this regard.
Statement from the applicant
The IAA assessed an undated statement from the applicant at [14] to [16] in its written reasons. As accurately summarised by the Minister (at [41] in written submissions filed on 19 October 2021), when reviewing this statement the IAA:
(a)noted that the applicant’s statement largely reiterated his previous claims, and that it included argument addressing the delegate’s decision, which the Authority had considered (CB 299 at [14]);
(b)noted that the statement “includes the new claim that the applicant’s Pakistani national identity card would identify him as coming from Parachinar”, which may mean that he will be perceived as Shia and harmed on that basis (CB 299 at [14]. The IAA noted that this new claim was not supported by a copy of the identity card, and that it was not clear whether the applicant was referring to one he presently holds or one that has yet to issue (CB 299 at [14]);
(c)referred again to the SHEV application history and the absence of an explanation as to why this claim had not been made to the delegate (CB 299 at [15]);
(d)referred to its substantive conclusion that the applicant could return to his family home in Lower Kurram Agency, and the applicant’s family history which included moving from Parachinar to Sadda prior to the applicant leaving Pakistan (CB 299 at [15]);
(e)was of the view that the applicant would not be perceived to be of the Shia Islam religion on the basis that his identity card may record his place of birth in Parachinar (CB 299 at [15]);
(f)was not satisfied that this information could not have been provided to the delegate; and
(g)whilst it accepted that the information was credible personal information, was not satisfied in the circumstances that there were exceptional reasons justifying its consideration (CB 299 at [16]).

Having assessed the IAA’s approach in this regard, the Minister argues (in written submissions filed on 19 October 2021) that no error arises in relation to the statement from the applicant because:
44.The determinative view that the Authority formed (that the applicant would not be perceived to be of the Shia Islam religion on the basis that his identity card may record his place of birth in Parachinar) informed the Authority’s assessment of whether ‘exceptional circumstances’ existed. The Authority, when determining whether exceptional circumstances have been established, is entitled to consider the truth of the claim proper. That is exactly what the Authority did in this matter, and there was no error in the Authority making the conclusive determination that it did in assessing whether there were exceptional circumstances.
The Court agrees.
The IAA’s assessment that no exceptional circumstances existed which would justify it accepting this new information must be read within the context of the IAA’s decision as a whole. Here, the IAA noted that the applicant had been represented throughout his visa application process but had not “provided any explanation as to why the new claim” (being that the applicant’s identity card would identify him as coming from Parachinar, where the people are largely Shia, such that basis he might be identified as being Shia) could not have been made earlier (at [14]-[15]).
As stressed by the Minister before this Court (a contention with which the Court agrees), the IAA is entitled to consider the truth of a claim when assessing whether exceptional circumstances have been established: DLB17 v Minister for Home Affairs [2018] FCAFC 230 at [22].
The IAA did so here and determined that, in circumstances where the applicant’s family (who are Sunni) had been living in Sadda for approximately ten years (and where the applicant had indicated that he had lived there for approximately five years prior to leaving Pakistan), the IAA concluded that the applicant would not be “perceived in Sadda to be Shia on the basis that his identity card may record his place of birth as Parichinar” (at [15]).
What is important here is the IAA’s core finding in this regard. That finding is that the applicant would not be perceived to be of the Shia Islam religion on the basis that his identity card might record his place of birth in Parachinar. Once that assessment had been made – an assessment that essentially rejected a core claim – the IAA was entitled to find that no exceptional circumstances existed that could justify considering a new claim of the sort raised by the applicant here.
No error arises in this regard.
Photographs
The new information included two photographs (believed by the IAA to be two copies of the same image) (at [17]-[18]).
The IAA assessed the photographs, as follows:
17.The applicant’s representative provided two images said to be of the applicant’s religious activities in Australia. The images appear to be two copies of the same photograph. The photograph shows a group of barefooted men holding their right hands over their hearts in front of what appears to be a video camera on a tripod. A number of men have their heads bowed. The applicant is among these men. The photograph is not dated or labelled, although the applicant’s image is circled. No description or indication as to where or when this photograph was taken, or what event it shows, has been provided. The image may be a photograph of men praying, although it is not evident that the setting is a mosque or other prayer hall.
18.Given the lack of information provided about this photograph, I consider it has little value as evidence corroborating the applicant’s claim to have converted to Shia Islam or to have engaged in Shia religious activities. The applicant has not satisfied me that this information could not have been provided to the delegate before he made his decision. I accept that it is credible information in the sense that it is capable of being believed, and that it otherwise meets the requirements of s.473DD(b)(ii). However I am not satisfied, in all the circumstances, that there are exceptional circumstances to justify considering the photograph.
In relation to the IAA’s assessment of this new material, the Court agrees with the Minister that the IAA’s approach in relation to s 473DD of the Act was correct. Relevantly, the IAA was satisfied that the photograph did meet s 473DD(b)(ii) of the Act. However, noting that the photographs did little to corroborate the applicant’s claim that he is a Shia Muslim and were thus of minimal value, there were no exceptional circumstances that could justify a accepting the information: s 473DD(a) of the Act.
No error arises in relation to the IAA’s assessment of the photographs provided by the applicant.
Conclusion in relation to s 473DD of the Act
The IAA correctly applied s 473DD of the Act when assessing the new information provided by the applicant as per the principles outlined in AUS17.
No error arises in relation to the application of s 473DD of the Act.
Other concerns raised by the applicant at hearing
Bias
As outlined above, at the hearing of this matter, the applicant raised a concern that the IAA had refused to accept new information provided by his representative because it was biased or “had already made up its mind about the applicant’s case”.
An allegation of bias must be clearly proven and distinctly made. In order to prove a claim of bias, an applicant must establish that:
(a)in the case of actual bias, that the IAA was so committed to a conclusion that regardless of the evidence or arguments presented by the applicant, that conclusion was not open to persuasion and incapable of alteration: Minister for Immigration v Jia Legeng (2001) 178 ALR 421 at [71]-[72]; or
(b)in the case of apprehended bias, the IAA conducted itself in a way that a fair-minded individual would reasonably believe that the IAA did not bring an impartial mind with respect to deciding the applicant’s case: SZRUI at [2].
As discussed above, the circumstances within which the IAA is able to consider new information is strictly limited: s 473DD of the Act. Here, the IAA considered the new information against the legislative criteria (and in line with the requirements of AUS17) but, ultimately, was not satisfied that the information contained in the submissions could not have been provided to the delegate or that there were no exceptional circumstances to justify considering the new claims or other new information included in the submissions (at [9]). The IAA also concluded that there were no exceptional circumstances to justify considering the new claims or other new information contained in the statutory declaration (at [13]), the applicant’s statement (at [16]) or the photographs (at [18]).
Once the IAA had made its determination with respect to the new information, it considered all of the other information before it in relation to the applicant’s visa application. Upon careful consideration of that material, the IAA ultimately did not accept the claims raised by the applicant and made findings based on those considerations. While the applicant is distressed by this finding and clearly disagrees, it cannot be said here that the IAA’s approach in this regard reflects a closed mind or an unwillingness to objectively engage with the applicant and the materials provided.
In CNY17 v Minister for Immigration & Border Protection [2019] HCA 50 (“CNY17”), the High Court held that, in a review being conducted by the IAA, if there is material which is prejudicial to an applicant and which is irrelevant before the IAA, then this may lead bias on the part of a decision-maker. That material includes anything which may cause someone to view an applicant as a person who should not be granted a visa or which may call into question an applicant’s credibility.
In this matter, the Court has not identified any material of the sort discussed in CNY17. The information and evidence before the IAA was limited to the information given to the IAA by the Secretary pursuant to s 473CB of the Act and material the applicant himself had provided.
Any allegation of bias raised by the applicant is, accordingly, dismissed.
Country information considered by the IAA
At the hearing of this matter, the applicant also raised a concern in relation to “the information on the ground” at the time and noted that the “situation has since changed”.
To the extent that the applicant is referencing changes to the current situation in Pakistan in comparison to when the IAA made its decision, this is not something that this Court can assist with. The IAA can only base its decision on the information available to it at the time of its decision and any changes to the situation in the applicant’s home country which occur after the IAA’s decision cannot buttress any allegation of jurisdictional error on the part of the IAA. Nor does this Court have the powers to assess a country’s changing circumstances, no matter how dire: EGZ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 10; GLX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 9.
To the extent that the applicant now has “grave concerns” about returning to Pakistan due to a changed political climate, the Court’s jurisdiction in matters of this sort is limited and, in circumstances where there is no evidence of jurisdictional error on the part of the IAA, the Court is unable to assist the applicant. However, the Court notes that the Minister does have discretionary powers which can be exercised in cases where an applicant argues that there has been a significant change in a country’s circumstances. The Court cannot ask the Minister to exercise his discretionary powers. However, the Court notes, for the applicant’s information, that the Minister does have broad powers in this regard and can elect to exercise them should he decide (on current evidence) that it would appropriate to do so.
To the extent that the applicant disagrees with the findings of the IAA and its use of country information, it is well settled that the use and assessment of country information, together with the weight given to that country information, is a matter for the IAA: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10.
It was open to the IAA to have regard to any country information it considered relevant to the applicant’s situation and to consider and make findings based on that information.
No error arises in relation to the IAA’s consideration of country information.
CONCLUSION
The application for judicial review filed by the applicant on 8 November 2018 and the issues raised by the applicant at the hearing of this matter have failed to identify any jurisdictional error. The Court has otherwise been unable to identify any jurisdictional error on the part of the IAA.
The application is, accordingly, dismissed.

I certify that the preceding one hundred and seventy-one (171) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall.
Associate:
Dated: 4 February 2022

File number:	PEG 170 of 2021
Judgment of:	JUDGE KENDALL
Date of judgment:	4 February 2022
Catchwords:	MIGRATION – Safe Haven Enterprise visa – decision of the Immigration Assessment Authority – whether the IAA acted unreasonably in declining the applicant’s request to be invited to a hearing – whether the IAA acted unreasonably by not extending the time for the applicant to provide further information – whether the IAA acted unreasonably by not requesting that the applicant provide “correct submissions” – whether the IAA erred in its consideration of new information pursuant to s 473DD of the Migration Act 1958 (Cth) – whether the IAA was biased – whether the IAA erred in relation to its consideration of country information – no jurisdictional error – application dismissed.
Legislation:	Migration Act 1958 (Cth), ss.5, 5H, 5J, 473CB, 473DA, 473DB, 473DC, 473DD, 473FB, 473GA, 473GB and Division 3 of Part 7AA
Cases cited:	AUS17 v Minister for Immigration and Border Protection (2020) 94 ALJR 1007 BEP17 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 81 CNY17 v Minister for Immigration & Border Protection [2019] HCA 50 Craig v State of South Australia (1995) 184 CLR 163 DBX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 897 DLB17 v Minister for Home Affairs [2018] FCAFC 230 DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784 Dunsmuir v New Brunswick [2008] 1 SCR 190 EGZ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 10 GLX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 9 Minister for Home Affairs v DUA16 [2020] HCA 46 Minister for Immigration & Border Protection v Singh [2014] FCAFC 1 Minister for Immigration & Citizenship v Li [2013] HCA 18 Minister for Immigration & Citizenship v SZKRT [2013] FCA 317 Minister for Immigration & Citizenship v SZMDS [2010] HCA 16 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration v Jia Legeng (2001) 178 ALR 421 MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 Plaintiff M174/2016 v Minister for Immigration & Border Protection (2018) 264 CLR 217 SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24 SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Division:	Division 2 General Federal Law
Number of paragraphs:	171
Date of hearing:	17 January 2022
Place:	Perth
Applicant:	In person
Counsel for the First Respondent:	Ms L Groves
Second Respondent:	Submitting appearance, save as to costs
Solicitor for the Respondents:	Australian Government Solicitor

PEG 170 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	CUH21 Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent IMMIGRATION ASSESSMENT AUTHORITY Second Respondent

ORDER MADE BY:	JUDGE KENDALL
DATE OF ORDER:	4 FEBRUARY 2022