CXN17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 165
Federal Circuit and Family Court of Australia
(DIVISION 2)
CXN17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 165
File number: MLG 1407 of 2017 Judgment of: JUDGE FORBES Date of judgment: 16 March 2023 Catchwords: MIGRATION – refusal to grant temporary protection visa – judicial review of decision of Immigration Assessment Authority – introduction of new information by applicant – whether Authority failed to assess new information according to law – error in Authority’s approach conceded by Minister – whether error material – whether same family unit claim clearly articulated or clearly emerges from materials Legislation: Migration Act 1958 (Cth), s 7, 36, 65, 473, 474
Migration Regulations 1994, reg 1.05, 1.12
Cases cited: AUS17 v Minister for Immigration and Border Protection (2020) 94 ALJR 1007
AWT15 v Minister for Immigration and Border Protection [2017] FCA 512
AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89
BDY18 v Minister for Immigration and Border Protection (2020) 273 FCR 170
DQM18 v Minister for Home Affairs [2020] FCAFC 110
Htun v Minister for Immigration and Multicultural affairs (2001) 233 FCR 136
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR 1
Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176
MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441
SZUTM v Minister for Immigration and Border Protection (2016] 241 FCR 214
Division: Division 2 General Federal Law Number of paragraphs: 85 Date of hearing: 7 March 2022 Place: Melbourne Counsel for the Applicant: Dr McBeth Solicitor for the Applicant: Mylvaganam Wimaleswaran Counsel for the Respondents: Mr Barrington Solicitor for the Respondents: Mills Oakley ORDERS
MLG 1407 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CXN17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
JUDGE FORBES
DATE OF ORDER:
16 March 2023
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to ‘Minister for Immigration, Citizenship and Multicultural Affairs’.
2.The Decision of the Immigration Assessment Authority dated 13 June 2017 be quashed.
3.A writ of mandamus be directed to the Immigration Assessment Authority requiring it to determine the Applicant’s application according to law.
4.The First Respondent pay the Applicant’s costs fixed at $7,853.
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 FORBES
INTRODUCTION
This proceeding concerns an application seeking judicial review of a decision made by the Immigration Assessment Authority (IAA) dated 13 June 2017. The decision of the IAA affirmed a decision of the Minister’s delegate (the delegate) not to grant the applicant a Temporary Protection (Class XD, Subclass 785) visa (the visa) under s 65 of the Migration Act 1958 (Cth) (the Act).
BACKGROUND
The following background is derived from the detailed outlines of submission filed by each of the parties prior to the Hearing, and of course, the court book. Unless otherwise stated, the following matters are common ground.
The applicant is a Sri Lankan citizen of Tamil ethnicity. He first arrived in Australia at Christmas Island on 27 August 2012 as an unauthorised maritime arrival.
At the time of his arrival the applicant was 17 years of age. The applicant travelled on the same boat as his adult cousin.
On 9 January 2013, the applicant participated in an arrival entry interview.
When the applicant and his cousin were reunited in detention on Christmas Island the Department appointed the adult cousin as the applicant’s guardian.
On 18 January 2016 the applicant applied for the visa. The applicant claimed to have a well‑founded fear of persecution on account of his Tamil ethnicity, appearance and language, his perceived links with the Liberation Tigers of Tamil Eelam (LTTE), his Catholic faith and his fear of being harmed by the Sri Lankan army if he returns as a failed asylum seeker.
The delegate refused the application on 2 November 2016. The delegate was not satisfied that the applicant had a profile that would indicate he would face a real chance of serious harm in Sri Lanka.
The matter was subsequently referred to the IAA for review pursuant to s 473CA of the Act and the material before the delegate was referred to the Authority under s 473CB.
Under the fast-track review scheme in part 7AA of the Act, applicants may submit new information to the IAA, defined in s 473DC(1)(a) of the Act as information that was not before the Minister’s delegate at the time of making his or her decision.
On 18 November 2016, the applicant’s representative provided the IAA with a statement titled “Applicant Submission”[1] which in part re-stated the applicant’s claims and rebuttal of the delegate’s decision and in part introduced what the Authority considered to be “new information”.
[1] Court Book (“CB”) p 147
The new information included:
(a)a claim by the applicant that his (now deceased) brother may have been given an injection of poison when in custody in an army camp, a concern which concern arose from a news item reporting deaths that had occurred in that way;
(b)a claim by the applicant that he had been beaten on 3 to 4 occasions over a 20 day period after his initial assault by a soldier; and
(c)a claim that the applicant would be prevented from practising his religion.
THE AUTHORITY’S DECISION
The IAA affirmed the delegate’s decision on 13 June 2017.[2]
[2] CB 156
Relevantly, in relation to the new information, the IAA stated at [5] of the decision record:
5. The IAA must not consider any new information from an applicant unless satisfied there are exceptional circumstances to justify considering the new information and the new information was not and could not have been provided to the Minister, or is credible personal information which was not previously known and had it been known may have affected the consideration of the applicant’s claims.[3]
[3] CB 160, para 5
In relation to each of the three categories of new information, the IAA made a finding that it was satisfied that the applicant had the opportunity to provide the information to the Minister and that it was not satisfied that any exceptional circumstances existed to justify considering the information[4].
[4] Authority’s reasons at [6], [7] and [8]
Specifically, in relation to the applicant’s claim that his brother may have been given an injection of poison, the IAA found that the delegate had previously questioned the applicant in detail about his brother’s possible cause of death and that the applicant had an opportunity to provide this information to the Minister at the time. Accordingly, the IAA did not have regard to the claim as it was not satisfied that any exceptional circumstances exist that justified considering the new information.[5]
[5] CB 160, para 6
The second item of new information was the applicant’s claim that he had been assaulted by a soldier in July 2012 and then over “the next 20 days” he had been “beaten by the officer on at least 3-4 occasions”[6]. In assessing whether this information was new, the IAA had regard to the applicant’s written claims, where he refers to one incident on 7 July 2012 when he claimed to have been beaten by a soldier. Similarly, in his TPV interview, the applicant informed the delegate that he was only beaten once by that particular solider. In other testimony, there had been no reference to any further physical assault from that soldier after the incident on 7 July 2012. The IAA accepted that the claim of a further three to four subsequent beatings was new information, but was satisfied that the applicant had been afforded an opportunity to provide this information to the Minister. The IAA did not have regard to this new information as it found that there were no exceptional circumstances which justified considering it.[7]
[6] CB 147, para 3
[7] CB 160, para 7
As to his claim regarding his Catholicism, the applicant says in his statement that the army “made it very difficult” for him to practise his religion, that he “on occasions did not attend church” as he believed to be at risk and that his “biggest fear” was being prevented from practising religion freely[8]. The IAA again accepted that this information was new and not before the Minister. The IAA noted however that at the TPV interview the applicant had been asked whether he was prevented from practising his religion, to which he said no. The IAA was satisfied that the applicant had an opportunity to provide the Minister with claims about the practise of his religion and as there were no exceptional circumstances to justify considering the new information, it too was not considered.
[8] CB 148, para 5
The Authority also did not take into account various reports and articles which reported on human rights conditions across Sri Lanka, which were not before the delegate and are new information. Although it did take into account new information from the most recent Department of Foreign Affairs and Trade (DFAT) country report at the time, published on 24 January 2017. The report had regard to Sri Lankans who had departed Sri Lanka illegally and sought asylum overseas.
The IAA did not accept that the applicant had been physically assaulted by an army soldier in Nachchikuda in July 2012 and found the applicant’s claimed encounter with the soldier was inconsistent and implausible. As such, the IAA did not accept that the applicant was of ongoing interest to the Sri Lankan army or other authorities or that following his departure to Australia the authorities made visits to his home, friends and the fishing cooperation to ask about his whereabouts.[9]
[9] CB 166, para 23
The IAA also concluded that the applicant was not imputed with an LTTE profile, either due to his Tamil ethnicity, his height which made him appear older, the fact that he lived in Nachchikuda during the period of LTTE control or for any other asserted reason.[10]
[10] CB 166, para 23
On the refugee criterion and based on country information, the IAA was not satisfied that the applicant’s status as a failed asylum seeker[11], or the fact that he is a young Tamil Catholic male from the Northern Province who departed illegally and has claimed asylum, would result in him facing harm on return to Sri Lanka[12]. The IAA found that the applicant’s fear of persecution was not well-founded nor that there was a real chance of the applicant being persecuted in Sri Lanka in the reasonably foreseeable future.[13]
[11] CB 170, para 46
[12] CB 171, para 47
[13] CB 171, para 47
On the complementary protection criterion, the IAA concluded that there were no substantial grounds for believing that there is a real risk that the applicant would suffer significant harm as a necessary and foreseeable consequence of being returned from Australia to Sri Lanka.[14]
[14] CB 172, para 56
Application for judicial review
On 30 June 2017 the applicant applied to this Court for judicial review of the IAA’s decision.
On 7 March 2018 a Registrar of this Court made orders to prepare the matter for final hearing including that the applicant file and serve any amended application, court book materials and written submissions. The Minister was also directed to file and serve written submissions.
The applicant filed an amended application on 19 October 2021.
On 7 February 2022, shortly before the hearing, the applicant filed a further amended application (‘FAA’). The FAA for review contained two grounds of review, as follows (particulars omitted):
(1)The IAA failed to complete its statutory duty in assessing each item of new information under the criteria in s 473DD of the Migration Act in the manner required by law.
[Former ground 2 abandoned]
(2)The IAA failed to consider a claim arising from the material before it, namely a claim that the applicant was entitled to a protection visa under s 36(2)(b) or (c) of the Migration Act as a member of a family unit of a person who has been granted a protection visa.
An outline of submissions and an affidavit were also filed by the applicant on 15 February 2022.
FINAL HEARING
The matter came before me for hearing on 7 March 2022. Dr McBeth of counsel appeared for the applicant and the Minister was represented by Mr Barrington of counsel.
Ground 1
Ground one asserts a failure by the IAA to complete its statutory duty in assessing three items of new information under the criteria in s 473DD of the Act.
Section 473DD provides:
For the purposes of making a decision in relation to a FastTrack 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 AUS17 v Minister for Immigration and Border Protection[15] the High Court considered the proper application of the two criteria of s 473DD and held as follows[16]:
“Section 473DD would be at war with itself, and the purpose of s 473DD(b)(i) would be thwarted, if the circumstances that there was new information from a referred applicant meeting the description in either s 473(b)(i) or s 473(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).
Logic and policy therefore demand that the Authority assessed such new information as it might obtain from the referred applicant first against the criteria specified in both s 473(b)(i) and s 473(b)(ii) and only then against the criterion specified in s 473DD(a). If neither of the criteria specified in s 473(b)(i) and s 473(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 473(b)(i) or the criterion specified in s 473(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 473(b)(i) or the criterion specified in s 473(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 the criterion being met.
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).”
[15] AUS17 v Minister for Immigration and Border Protection (2020) 94 ALJR 1007
[16] AUS17 at [10]-[12] per Kiefel CJ, Gageler, Keane and Gordon JJ
The applicant submits and it is not contested that following the High Court decision in AUS17, the IAA was obliged to consider each of the limbs of s 473DD(b) first, then take them into account in assessing whether there were exceptional circumstances under s 473DD(a) of the Act.
The applicant submits in the present case, in relation to three items of new information identified by the IAA as arising from the statement and submission provided by the applicant, the IAA made the same error as that identified by the High Court in AUS17. Here, the IAA made a finding only under s 473DD(a) (exceptional circumstances) but in doing so gave no consideration to and made no finding under s 473DD(b)(ii).
The Minister concedes the error. In written and oral submissions the Minister acknowledges that while the IAA considered whether each item of new information was, or could have been, provided to the delegate (and so considered the new information against the s 473DD(b)(i) criterion), there is no basis to infer that the Authority considered whether the new information was credible personal information which was not previously known and, had it been known, may have affected the consideration of the applicant’s claims (the s 473DD(b)(ii) criterion).
Materiality
The applicant contends that error having been established, the only question for the Court to determine is whether the IAA’s failure to comply with its statutory duty was material to its decision. The applicant accepts that a failure to comply with a statutory duty in s 473DD will only constitute jurisdictional error if there was a realistic possibility of a different outcome if the IAA had complied with its statutory duty. However the applicant submits that the Court only needs to find that the IAA’s error was material in relation to any one of the three items of new information in order for the applicant to succeed.
While conceding error in the IAA’s application of s 473DD, the Minister submits that the error in relation to each of the three items of new information was not material. The Minister submits that if the IAA had considered the information against s 473DD in the manner required by the High Court in AUS17, and if the IAA had considered that new information in conducting the substantive review, there was no realistic possibility of a different result.
As to whether a failure to discharge a statutory duty is sufficiently material to give rise to jurisdictional error, the parties do not contest the applicable legal principles.
In MZAPC v Minister for Immigration and Border Protection[17], a majority of the High Court explained that a breach is material only if compliance could have realistically resulted in a different decision.[18] Whether a different outcome could realistically have resulted had an error not been made is a backward looking inquiry and “concerns what the decision-maker did in the particular case”.[19]
[17] MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441
[18] MZAPC at [37], citing Minister for Immigration and Border Protection v SZTMA (2019) 264 CLR 421 at 445 [45]
[19] MZAPC at [37], citing BDY18 v Minister for Immigration and Border Protection (2020) 273 FCR 170 at 187 [87]-[88]
The approach to materiality taken by the High Court is not an exercise which takes place in a universe of hypothetical facts. It is not for the Court to determine whether the information would have actually persuaded the IAA to a different outcome. Where questions of weight are involved a court on review is unlikely to be able to conclude one way or the other what weight might have been given to information had the statutory task been performed without error. Rather, the task for the Court is to assess whether there was a realistic (as opposed to fanciful, far-fetched or absurd) possibility of a different outcome if the Authority had properly discharged its statutory duty. In DQM18 v Minister for Home Affairs[20] the Full Court observed that “the adjective “realistic” in the statements of principle by the majority of the High Court in Hossain and SZMTA is used to distinguish the assessment of the possibility of a different outcome from one whether possibility is fanciful or improbable, no more than that.”
[20] DQM18 v Minister for Home Affairs [2020] FCAFC 110 at 114 per Bromberg and Mortimer JJ
I accept the Minister’s submission that in considering the realistic possibility of a different outcome it is proper to take into account and have regard to the factual findings that the IAA made, but that is quite different from the court trying to subjectively get inside the head of the IAA or engaging in speculation about the decision-maker’s state of mind.
I now turn to consider each item of new information.
Applicant’s concerns about the cause of his brother’s death
The delegate found that the death of the applicant’s brother was due to an illness which he had suffered in the two years before his death. The delegate found that the illness related to his kidneys and high fevers and a blood transfusion and that there was nothing to indicate that the Sri Lankan authorities had anything to do with it or that it resulted from any accusations that his brother had LTTE associations[21].
[21] CB 144
In his written submission to the IAA the applicant stated that he was “very concerned that [his older brother] might have been given an injection when he was in custody in the army camp”. The applicant referred to what he described as a “very disturbing news item headed “Mysterious deaths of rehabilitated liberation fighters” where it is stated that 105 rehabilitated fighters had died as a result of being injected with a substance manufactured in China, which was poisonous and given to them on the pretext that they were being injected with preventative medicine”.[22]
[22] CB 144
The applicant’s counsel submitted that the new information contained in the written submission was made by way of rebuttal to the delegate’s finding that the brother’s death had nothing to do with his time in the army camp as an LTTE suspected person. The applicant submits that the new information is not inconsistent with the delegate’s finding that his brother had died from kidney failure, but it at least raises the possibility that the death may have been caused by the authorities in the manner referred to in the news item. The applicant submits that the central issue is not whether this information was likely to be persuasive, rather whether it was information capable of affecting a decision. In terms of materiality, the applicant says the information was provided in specific rebuttal to the delegate’s finding and it was supported by objective evidence in the form of a news article.
The Minister on the other hand, submits that the delegate had already dismissed other speculation by the applicant about possible causes of his brother’s death. The applicant had previously suggested that his brother had some issues with villagers and that people spoke of voodoo in relation to his brother’s death. The IAA also considered that speculation about the cause of death was “fanciful” and preferred the description given by relevant authorities in the death certificate[23].
[23] CB 158
The Minister submits that in light of the IAA’s finding that the applicant’s earlier speculation about the cause of death was “fanciful”, there is no realistic possibility that a further speculative explanation for the death could have altered the IAA’s preference for the description given in the death certificate.
I agree with the Minister’s submission. Although it is not possible or appropriate to speculate about the decision-maker’s state of mind, I consider it highly improbable that the IAA would have done other than dismiss the new information as yet further speculation. The IAA had objective evidence in the form of a death certificate. I am not persuaded that if the IAA had properly discharged its statutory task in relation to s 474DD that the new information could realistically have resulted in a different outcome on the review.
Further assaults by the officer
In his statement to the IAA the applicant refers to an incident in July 2012 where he claimed he was assaulted by an officer and in referring to subsequent events stated that in the next 20 days he was questioned by the officer and beaten by the officer on least 3 to 4 occasions. As stated earlier the IAA was satisfied that this was new information.
Again, counsel for the applicant submitted that this new information was specifically provided in response to a finding by the delegate, including a finding that it was highly unlikely that the applicant would have been questioned and beaten in the space of a month after the initial incident[24]. In his statement to the IAA the applicant explained that the officer who beat him was taking out revenge for having lost face over the original incident. It was that loss of face which resulted in the officer and some other officers coming to his house over the following few weeks to question him and beat him. The applicant submits that this new information in response to the delegate’s finding is material because if it had been considered it could have made a difference to the Authority’s consideration of the factual question.
[24] CB 119-120, 122
The Minister’s case is that the materiality of this item of new information needs to be assessed in the context of the IAA’s rejection of the applicant’s claim that he had been assaulted by a soldier in 2012. The IAA concluded that the applicant’s claim was not credible because:
(a)the applicant had not mentioned the subsequent encounter at all in his arrival interview;
(b)the applicant’s account of the meeting with the army commander was not consistent across his accounts;
(c)the claims of subsequent harassment were not made until the interview with the delegate, and were not mentioned in the application for the visa; and
(d)despite claims of repeated subsequent harassment, it was implausible that the applicant’s uncle had not reported the assaults to the army commander.
The Minister contends that a central concern of the IAA was the manner in which the applicant’s claims about this incident with the soldier in the following incidents had shifted and developed over time. In particular, the IAA found that the new information (the applicant’s claim to have been beaten 3 to 4 subsequent times) had not been advanced before the delegate, despite the applicant having been questioned. In that context, the Minister submits that it is simply not realistic that another inconsistent and later account would have led to a different outcome on the review – rather, a further inconsistent account would only have compounded the Authority’s doubts about the applicant’s claims.
The Minister’s submission in effect is that because the applicant’s account had developed over time, it was considered not plausible and that any further explanation was only likely to cement the IAA’s view about his credit. The Minister submits that in those circumstances there is no realistic possibility that yet another piece of late information would make a difference.
I disagree. In my view this new information about later beatings was material. Even though the delegate had reasons to doubt and reject the applicant’s claim about the initial assault, the new information was an attempt by the applicant to give a further explanation about what had happened to him as an 11 year old. Allegations about the army officer’s subsequent retaliatory conduct involved a further explanation which may have reopened the question of the plausibility of the initial assault and thus have opened the possibility of a different outcome on the review. That is not to say that the information would have persuaded the IAA to a different view, particularly having regard to other findings made by it on the same issue. However, it could have resulted in a different outcome because it is possible that consideration of the new information may have put other findings in a different light or altered the weighting given to other matters in the overall reasoning process.
By reason of my conclusion in the foregoing paragraph, I consider that the IAA’s failure to comply with a statutory duty in s 473DD constituted jurisdictional error. For that reason the decision of the IAA should be quashed and the matter returned to the authority to be determined according to law.
Ability to practice religion claim
In the claim advanced before the delegate, the applicant claimed that he was Catholic, that the authorities were spreading Buddhism everywhere and that he could not worship as the Sri Lankan Army did not respect Catholic places of worship. The delegate accepted that the applicant is Catholic and that he attended church regularly but did not accept, due to lack of evidence, that he was not permitted to worship or that he had been on his way home from church on the day he was accosted by the army officer[25].
[25] CB 123
In relation to his faith, the item of new information in the applicant’s submission[26] to the IAA was a claim that his “biggest fear” was that he may be prevented from practising his Catholic religion upon return to Sri Lanka. He stated, inter alia, that the church he attended, St Peter’s, was in an area that was under army control. He stated that the army would make it difficult for him to attend church because he had to pass checkpoints and they would question him. The applicant also stated that since he left Sri Lanka the government had been actively promoting Buddhism and that Buddhist monks were in the ascendency and were preaching hatred against followers of Christianity and Islam. The applicant submitted that he was in fear because of these factors and occasionally did not attend church because he believed he was at risk.
[26] CB 144, paras 4 and 5
The Minister accepted that this aspect of the applicant’s submission was new information for the purposes of s 473DD but contends that it was not material because it was similar in substance to the claim advanced before the delegate. The Minister notes that the delegate found no evidence that members of the applicant’s family who remained in Sri Lanka had experienced any difficulty in practicing their religion and, after having regard to country information, concluded that the applicant would not be restricted in practising his religion. Having regard to those findings, the Minister submits that there is no realistic possibility the IAA would have come to a different decision on review if the new information had been considered.
I do not agree with the Minister’s submission that the new information was in essence the same as information considered by the IAA not to give rise to a real chance of harm[27]. As counsel for the applicant submitted, what makes the information “new information” by definition is that it was not before the delegate and the whole point of the applicant’s written submission to the IAA was to persuade the IAA to depart from the delegate’s findings.
[27] Minister’s outline at [24]
The applicant’s submission was more than a restatement of his previous claim, as it included assertions about conduct of the government and Buddhist monks and incitement of hatred toward Christians. I am satisfied that there was a realistic possibility of a different outcome if this new information had been considered. In that sense the new information was material and the IAA’s error was jurisdictional. The decision of the IAA should be quashed and the matter returned to the Authority to be determined according to law.
Ground 2
By reason of my findings in relation to Ground 1, it is not strictly necessary for me to determine this separate ground of alleged jurisdictional error. However, should I be wrong about Ground 1, I have considered and determined this separate ground of review.
By this ground the applicant contends that the IAA failed to consider whether the applicant was a member of the same family unit as a person who had been granted a protection visa, as required by s 36(2)(b) and (c) of the Act. The applicant submits that once the IAA had determined that he did not satisfy the primary criteria for a protection visa in s 36(2)(a) or (aa), it was bound to go on to consider whether he satisfied any of the alternative criteria.
The applicant submits that the IAA had been put on notice of the fact that he had arrived in Australia as a minor with his guardian, namely his adult cousin, who had been granted a visa on the basis of his refugee status. That notice is said to comprise a sentence in the applicant’s submission to the IAA that:
“I arrived in Australia as a minor and came with my Guardian [name omitted], who also made an application for refugee status, which was granted.”
The applicant submits that having been put on notice, the IAA failed to consider whether the applicant should be afforded protection as a member of the guardian’s family unit.
In support of this ground the applicant sought to rely on an affidavit affirmed by him on 7 February 2022 which deposes to the relationship between he and his adult cousin and their residential living arrangements subsequent to detention. The affidavit also deposes to matters such as the applicant’s financial and psychological dependency on his cousin and the cousin’s support of the applicant during the boat journey to Australia, their period in immigration detention and the period while the applicant’s visa application and subsequent review took their course. This affidavit was filed with the applicant’s materials approximately one month prior to the hearing.
At the commencement of the hearing before me, counsel for the Minister advised the Court that he had been instructed to object to the affidavit, submitting that its contents were irrelevant as the information had not been before the IAA. Mr Barrington submitted that the evidence could not be relevant to whether or not the Authority failed to consider a claim for protection as a member of his cousin’s family unit, as no such claim had ever been advanced by the applicant.
The Minister did not, however, contest the applicant’s assertion that the Department appointed his cousin as his guardian when he was a minor and whilst the two were in detention. Nonetheless, the Minister contends (and I take it to be common ground) that there was never any claim by the applicant for the grant of a protection visa on the basis that he was a member of the same family unit as his cousin.
Pursuant to s 36(1A) of the Act, a criterion for a protection visa is that an applicant must satisfy at least one of the criteria in subsection (2). Those criterion are that the applicant is owed refugee protection obligations (2)(a) or complimentary protection obligations (2)(aa) or that the applicant is a member of the same family unit of a person who is owed refugee protection obligations and holds a protection visa of the same class sought by the applicant (2)(b) or a member of the same family unit of a person owed complementary protection obligations and holds a protection visa of the same class sought by the applicant (2)(c).
The expression “member of the same family unit” is defined by reg 1.12 of the Migration Regulations 1994 (Regulations). Relevantly, reg 1.12(4), which applies in the case of a protection visa application, provides:
(4) a person is a member of the family unit of another member (the family head) if the person is:
(a) a spouse or de facto partner of the family head; or
(b) a dependent child of:
(i) the family head; or
(ii) a spouse or de facto partner of the family head; or
(c) a dependent child of a dependent child of:
(i) the family head; or
(ii) a spouse or de facto partner of the family head; or
(d)a relative, of the family head or of a spouse or de facto partner of the family head, who:
(i) does not have a spouse or de facto partner; and
(ii) is usually resident in the family head’s household; and
(iii) is dependent on the family head.
Under reg 1.05A of the Regulations, a person is dependent upon another person (for the purposes of an application for a protection visa) if the first person is “wholly or substantially reliant on the other person for financial, psychological or physical support”.
The applicant’s case is that there is a difference between a factual claim for protection and the statutory criteria required to be applied in assessing an applicant’s claims. The essence of the applicant’s submission is that as an applicant for a protection visa there is no requirement for him to explicitly set out the criterion on which he relies, rather it is for the IAA to consider the claim against each of the statutory criteria. Accordingly, if it is plain on the face of the record that the IAA did not turn its mind to paragraphs 36(2)(b) or (c) in its assessment of the applicant’s claim, there is jurisdictional error.
In any event, the applicant submits that his submission to the IAA put the Authority “squarely on notice” of the fact that he arrived in Australia as a minor with a guardian who had been granted a visa on the basis of his refugee status. I take it from this submission that the applicant contends that the Authority was bound, by reason of that statement alone, to assess the application against the “same family unit” criteria.
I do not accept the submission. It is well established that the IAA’s review function requires it to consider all claims made by an applicant and the essential component integers of that claim[29]. However, as was made clear in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR 1[30], the Tribunal is only required to consider such claims where they either are:
(a)the subject of a substantial, clearly articulated argument relying on established facts; or
(b)a claim that clearly emerges from the materials.
[29] Htun v Minister for Immigration and Multicultural affairs (2001) 233 FCR 136 per Allsop J at [42]
[30] See also AYY v Minister for Immigration and Border Protection [2018] FCAFC 89 at [18]
These principles apply to the IAA as they apply to the Administrative Appeals Tribunal. In Minister for Immigration and Border Protection v BBS16[31] the Full Court said at [79]:
“…A body such as the IAA, which is conducting an inquisitorial review process in which there is a claim for protection under s 36(2)(a) of the [Migration] Act must not only consider and determine the case as articulated by the protection visa applicant, but also do so in relation to an un-articulated claim which is nevertheless raised clearly or squarely on the material before the review body”
[31]Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 per Kenny, Tracey and Griffiths JJ
As to whether a claim “clearly emerges”, the following principles were collected by Barker J in AWT15 v Minister for Immigration and Border Protection[32] and adopted by the Full Court in AYY17 v Minister for Immigration and Border Protection[33]:
(a)such a finding is not to be made lightly;
(b)the fact that a claim might be said to arise from materials is not enough;
(c)to clearly emerge from the materials, the claim must be based on “established facts”;
(d)while there is no precise standard to determining whether an unarticulated claim has been “squarely raised” or “clearly emerges” from the materials “a court will be more willing to draw the line in favour of an unrepresented party”; and
(e)understanding whether a claim has clearly emerged from materials cannot be assessed in a vacuum. Considerations must be given to the way an applicant’s claims are presented over time.
[32] AWT15 v Minister for Immigration and Border Protection [2017] FCA 512
[33] AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89 at [18] (citations omitted)
While the Tribunal is not required to deal with claims which are not clearly set out and which do not clearly arise from the material before it, a review Tribunal is not limited to dealing with claims expressly articulated by an applicant. A claim not expressly advanced by an applicant will attract the review obligation of the Tribunal when it is plain on the face of the material before it.[34]
[34] SZUTM v Minister for Immigration and Border Protection (2016] 241 FCR 214 per Markovic J at [37]-[38]
In my view there was no material or anything of substance put before the IAA (or indeed the delegate) which was objectively capable of giving rise to an inference that the applicant was seeking protection by reason of him being a member of the same family unit as another protection visa holder.
I do not accept that the Authority was put “squarely on notice” of the factual basis for a claim that the applicant was a member of a relevant family unit. The statement that the applicant came to Australia as a minor with his cousin who acted as guardian was relatively benign in the context of his submission to the IAA. In my view, that statement in and of itself was insufficient to give rise to a presumption that the family unit criteria were potentially applicable.
In order to demonstrate that the applicant was a member of his cousin’s family unit, he was required to establish that he was a blood relative, that he did not have a spouse or de facto partner, that he was usually resident in his cousin’s household and he was dependent on the cousin by being wholly or substantially reliant on him for financial, psychological or physical support. The applicant could have but did not put before the IAA the raft of evidence upon which he now seeks to rely. There is no explanation for why he did not do so and his written submission to the IAA did not seek to engage with the “family unit” claim or criteria. There is nothing in the material before the delegate or before the IAA which could reasonably have made the IAA alive to this claim or was capable of satisfying the criteria.
I agree with the Minister that the absence of any evidence or claims directed to the “family unit” criteria demonstrates that it was not a substantial or clearly articulated claim or one which clearly emerged from the materials. At no time did the applicant include his cousin in the application or as part of his family members not included in the application. The Minister submits, and I agree, that based on the material before it, it was not for the IAA to enquire into the applicant’s familial relationships to ascertain whether he was entitled to make some other claim which he had not advanced.
Ground 2 in my view does not reveal jurisdictional error and is not a basis for the relief sought by the applicant.
Disposition
It is common ground that the IAA erred in its application of s 473DD. I have found that that error was material in relation to two items of new information that were before the IAA, namely the applicant’s claim to have been beaten on 3 to 4 occasions in or around July 2012 and the claim that he might be prevented from practising his religion. Had that new information been considered, there was a realistic possibility of a different outcome on review.
As the decision of the IAA is affected by jurisdictional error, a writ of certiorari will be issued to quash the decision of the IAA in the matter and I will order that the matter be remitted to it to be re-determined according to law.
I will order that the name of the first respondent be amended to “Minister for Immigration, Citizenship and Multicultural Affairs”.
I will hear the parties on the question of costs.
I certify that the preceding eighty-five (85) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes. Associate:
Dated: 16 March 2023
[28] Applicant’s submission to the IAA para 1(f), CB 143
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