CYV17 v Minister for Immigration, Citizenship and Multicultural Affairs - [2023] FedCFamC2G 186

Federal Circuit and Family Court of Australia
(DIVISION 2)
CYV17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 186

File number(s): MLG 1425 of 2017

Judgment of: JUDGE LUCEV

Date of judgment: 10 March 2023

Catchwords: MIGRATION – Judicial review – decision of the Immigration Assessment Authority – Protection (Class XA) (Subclass 866) visa – citizens of Iran – whether failure to invite to an interview or to otherwise provide new information – whether review beyond jurisdiction by reason of invalid certificate – whether failure to consider whether to exercise power – whether unreasonable failure to exercise power – whether unreasonable failure to disclose issuance of certificates – whether apprehension of bias – whether illogical or irrational finding on critical question – whether jurisdictional error – writs issued

Legislation:
Evidence Act 1995 (Cth) s 130

Migration Act 1958 (Cth) Pt 7AA, ss 5, 57, 438, 473CB, 473DA, 473DC, 473DD, 473GB, 473GD, 476, 477, 487

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 3.05

Cases cited:
ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; (2020) 269 CLR 439; (2020) 94 ALJR 928; (2020) 383 ALR 407

AGG17 v Commonwealth of Australia [2018] FCA 242

AIB16 v Minister for Immigration and Border Protection [2017] FCAFC 163; (2017) 254 FCR 457

AXE17 v Minister for Immigration and Border Protection [2019] FCA 695

AYF16 v Minister for Immigration and Border Protection [2018] FCAFC 129; (2018) 264 FCR 654

BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 268 CLR 29; (2019) 93 ALJR 109; (2019) 373 ALR 196

BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94; (2018) 263 FCR 292; (2018) 161 ALD 441

Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 1047; (2017) 252 FCR 352; (2017) 347 FLR 173

Charisteas v Charisteas [2021] HCA 29

CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 268 CLR 76; (2019) 94 ALJR 140;
(2019) 375 ALR 47

CNY17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1568

CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496; (2016) 70 AAR 413

CRT16 v Minister for Immigration & Anor [2020] FCCA 2132

CRT16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 651

DVO16 v Minister for Immigration and Border Protection [2021] HCA 12; (2021) 95 ALJR 375

Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 (2000) 75 ALJR 277; (2000) 176 ALR 644

Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344; (1984) 58 ALR 305

Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135

Maroun v Minister for Immigration & Citizenship [2009] FCA 1284; (2009) 112 ALD 424

Minister for Home Affairs v DUA16; Minister for Home Affairs v CHK16 [2020] HCA 46; (2020) 271 CLR 550; (2020) 385 ALR 212; (2020) 95 ALJR 54

Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225

Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; (2017) 257 FCR 111

Minister for Immigration and Border Protection v CED16 [2020] HCA 24; (2020) 94 ALJR 706; (2020) 380 ALR 216

Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421

Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181

Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594; (2011) 273 ALR 223; (2011) 85 ALJR 327; (2011) 119 ALD 1

Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248

Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99; (2013) 302 ALR 672; (2013) 136 ALD 41

Minister for Immigration and Multicultural Affairs v Shatku [2001] FCA 1857

Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992

Minister for Immigration and Multicultural and Indigenous Affairs v SZANS [2005] FCAFC 41; (2005) 141 FCR 586; (2005) 215 ALR 733; (2005) 86 ALD 583

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CQZ15 [2021] FCAFC 24

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; [2021] 96 ALJR 13; (2021) 395 ALR 403

Mukto v Minister for Immigration and Multicultural Affairs [1999] FCA 1801

MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081; (2016) 243 FCR 1

MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441

NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 167

NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241

NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 160; (2004) 135 FCR 567

Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217 (2018); 92 ALJR 481; (2018) 353 ALR 600

Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173; (2015) 90 ALJR 197; (2015) 327 ALR 8; (2015) 148 ALD 206

Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1

Ryan v State of Victoria [2015] VSCA 353

Selvadurai v Minister for Immigration and Multicultural Affairs [1994] FCA 1105; [1994] 34 ALD 347

Suh and Ors v Minister for Immigration and Citizenship and Ors [2009] FCAFC 42; (2009) 175 FCR 515; (2009) 108 ALD 470

Sunchen Pty Ltd v Commissioner of Taxation [2010] FCA 21; [2010] 114 ALD 49

SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300

SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190; (2007) 235 ALR 609; (2007) 96 ALD 1

SZHYH v Minister for Immigration and Border Protection (No 3) [2019] FCA 589; (2019) 78 AAR 464

SZQWV v Minister for Immigration and Citizenship [2012] FCA 817

SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86

VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117

Walker v New South Wales [1994] HCA 64; (1994) 182 CLR 45; (1994) 69 ALJR 111; (1994) 76 ACrimR 173

Division: Division 2 General Federal Law

Number of paragraphs: 60

Date of last submission/s: 23 February 2022

Date of hearing: 23 February 2022

Place: Perth (via videolink to Melbourne and Sydney)

Counsel for the Applicants: Mr Murphy via CISCO Webex

Solicitor for the Applicants: Victoria Legal Aid

Counsel for the First Respondent: Ms Laing via CISCO Webex

Solicitor for the First Respondent: Sparke Helmore

Second Respondent: Submitting appearance, save as to costs
ORDERS

MLG 1425 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
CYV17

First Applicant

CYW17 (by their litigation guardian, CYV17)

Second Applicant

CYX17 (by their litigation guardian, CYV17)
(and another named in the Schedule)

Third Applicant

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

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

order made by:

JUDGE LUCEV

DATE OF ORDER:

10 MArch 2023

THE COURT ORDERS THAT:
1.The name of the first respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The time prescribed in Order 1 of the Court’s Orders of 5 November 2021 be extended to 31 January 2022.
3.A writ of certiorari issue quashing the decision of the second respondent made on 21 April 2017.
4.A writ of mandamus issue requiring the second respondent to re-determine its review of the decision of the delegate of the first respondent made on 10 November 2016, and determine it according to law.

Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LUCEV
Introduction

On 3 July 2017 the applicants, a father, CYV17, with his three children CYW17, CYX17 and CYY17, for whom CYV17 is litigation guardian, lodged an extension of time application (“Extension of Time Application”) in the Melbourne Registry of the Court, pursuant to s 477(2) of the Migration Act 1958 (Cth) (“Migration Act”), seeking an extension of time in which to file an application for judicial review pursuant to s 476 of the Migration Act (“Proposed Judicial Review Application”). In August 2021 the matter was re-docketed to a Judge of the Court in the Perth Registry for directions and listing of a final hearing. The Proposed Judicial Review Application seeks review of a decision of the Immigration Assessment Authority (“Authority Decision” and “Authority” respectively) handed down 21 April 2017. The Authority affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the then Minister for Immigration and Border Protection, now the Minister for Immigration, Citizenship and Multicultural Affairs (“Minister”), to refuse to grant each applicant a Protection (Class XA) (Subclass 866) visas (“Protection Visa”).
Extension of Time Application
Grounds for an extension of time are set out in the Extension of Time Application. The Minister does not oppose the Extension of Time Application being granted. In the circumstances and having regard to relevant considerations as to granting an extension of time: Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344; (1984) 58 ALR 305; SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6] per Flick, Griffiths and Perry JJ, the Court has concluded that it is in the interests of the administration of justice to grant the Extension of Time Application: Migration Act, s 477(2). An order that the time for the filing of the Proposed Judicial Review Application be extended to 3 July 2017 was made at hearing.
Amended Proposed Judicial Review Application
On 31 January 2022 the applicants filed an Amended Proposed Judicial Review Application outside of the time prescribed by the Court’s orders of 5 November 2021. In circumstances where the Minister has raised no objection to the Amended Proposed Judicial Review Application and has addressed the amended grounds in the Minister’s written submissions filed 9 February 2022 (“Minister’s Submissions”), the Court considers it appropriate that leave be granted for the applicants to rely on the Amended Proposed Judicial Review Application (“Amended Judicial Review Application”), and there will be an order pursuant to r 3.05 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) extending time for the filing of the Amended Judicial Review Application.
The Amended Judicial Review Application contains six grounds of review. Ground 1 is not pressed. The remaining grounds which are set out below at [11] (ground 2), [26] (ground 3), [38] (ground 4), [43] (ground 5) and [51] (ground 6).
The following materials are before the Court:
(a)a Court Book (“CB”) numbering 426 pages (“Exhibit 1”);
(b)the affidavit of Louisa Wong affirmed 3 July 2017 annexing the Delegate’s Decision and the Authority Decision (“Wong Affidavit”);
(c)the applicants’ written submissions filed 31 January 2022 (“Applicants’ Submissions”);
(d)the affidavit of James Clarke affirmed 26 January 2022 annexing a redacted copy of the Green Card Document Examination Case Report and a copy of the Danish Immigration Service Report (“First Clarke Affidavit”);
(e)the Minister’s Submissions;
(f)the affidavit of James Clarke affirmed 18 February 2022 (“Second Clarke Affidavit”); and
(g)the transcript of the hearing on 23 February 2022.
Background
The relevant background to the Amended Judicial Review Application is as follows:
(a)CYV17 is the father of CYW17, CYX17 and CYY17 (the Court will hereafter refer simply to CYV17, unless otherwise necessary). Although CYV17’s wife also applied for a Protection Visa, she was found by the Delegate to be an excluded fast track review applicant under s 5(1)(a)(vi) of the Migration Act, and the refusal of her Protection Visa application could therefore not therefore be reviewed by the Authority;
(b)CYV17 applied for the Protection Visas on or around 2 September 2015: CB 69-224 and 335;
(c)CYV17 made the following consistent claims in relation to his life in Iran: CB 28 and 34:
(i)CYV17 was a member of the Bakhiyari tribe in Iran and his wife was a Faili Kurd from Iraq who had emigrated to Iran as a refugee and was stateless;
(ii)CYV17 and his wife met and married but were unable to officially register their marriage by reason of CYV17’s wife’s statelessness; and
(iii)CYV17 and his wife had triplets, CYW17, CYX17 and CYY17, but were also unable to register the children because of CYV17’s wife’s statelessness, and the children were thus stateless;
(d)CYV17, his wife and the children sought to flee Iran and procured false passports in order to do so;
(e)at some time in July 2012 CYV17, his wife and the children departed Tehran by plane and, after transiting for a few hours in Malaysia, arrived in Indonesia: CB 42. They were then in Indonesia for about one and a half to two months: CB 33;
(f)the first time they attempted to travel to Australia by boat the boat sank: CB 32-33;
(g)on their second attempt to travel to Australia they departed Indonesia on 21 August 2012 and arrived in Australia on 25 August 2012: CB 42, at which time they were detained on Christmas Island;
(h)on 25 August 2012 CYV17 participated in a 30 minute bio-data interview: CB 1-6. The document records that his preferred language was Farsi and his English was self-assessed as “poor”: CB 1;
(i)also on 25 August 2012 CYV17’s wife participated in a five minute bio-data interview: CB 7-12. The document records that she was “sick” at the time: CB 7, and that her preferred language was Farsi and her English was self-assessed as “poor”: CB 7;
(j)on 9 September 2012 CYV17 participated in an approximately three-hour Irregular Maritime Arrival - Entry Interview with a Farsi interpreter at Christmas Island: CB 13-35;
(k)on 27 September 2012 CYV17’s wife participated in a 37 minute Arrival Interview - Part A - Biodata: CB 36-43;
(l)on 4 November 2012 CYV17’s wife participated in an hour and a half Irregular Maritime Arrival – Entry Interview with a Farsi (Persian) interpreter: CB 44-61;
(m)on 13 July 2015, after an invalid visa application, the applicants were invited to apply for a temporary protection visa or safe haven enterprise visa: CB 62-68;
(n)on 14 August or 2 September 2015: CB 335, CYV17 applied for a temporary protection visa: CB 69-107. CYV17’s wife and the children were included in the Protection Visa application: CB 70, and separate personal details forms were provided for them (wife: CB 108-135; children: CB 140-165, 166-191, 192-224);
(o)on 3 September 2015 CYV17’s legal representative lodged with the Department:
(i)a statutory declaration of CYV17 dated 1 October 2013: CB 241-243;
(ii)a statutory declaration of CYV17 dated 14 August 2015: CB 245;
(iii)a statutory declaration of CYV17’s wife dated 17 September 2013: CB 247-251; and
(iv)a statutory declaration of CYV17’s wife dated 14 August 2015: CB 253;
(p)on 4 September 2015 the Department acknowledged the validity of CYV17’s application for a Protection Visa, as well as the applications of the children and CYV17’s wife: CB 225-239. The Department requested copies of “Fathers [sic] Green card, Mothers [sic] Green card, Brothers Green Card and documents to release applications [sic] family from Refugee Camp and Failyeen Kurdish Society Document re Uncle’s death in Iraq”: CB 237;
(q)on 22 and 27 October 2015 CYV17’s legal representative lodged copies and translations of:
(i)CYV17’s wife’s Green Card: CB 256, 264, 279-280;
(ii)CYV17’s wife’s brother M1’s (anonymised) Green Card: CB 257, 265, 281-282;
(iii)CYV17’s wife’s brother M2’s (anonymised) Green Card: CB 267, 283-284;
(iv)CYV17’s wife’s father’s Green Card: CB 263, 270, 287-288;
(v)CYV17’s wife’s mother’s Green Card: CB 262, 269, 285-286;
(vi)a letter verifying the refugee status of CYV17’s wife’s grandfather: CB 270;
(vii)a family list and identification document relating to CYV17’s wife’s grandfather: CB 258, 266, 289-290; and
(viii)a letter from the Failyeen Kurd Society regarding CYV17’s wife’s uncle: CB 261, 268, 291-292;
(r)CYV17’s wife provided a purported original of her Green Card on 21 January 2016: CB 293;
(s)on 7 or 9 March 2016 a “Document Examination Case Report”: CB 349, fn 23 or “Green Card Document Examination Case Report”: CB 338, fn 2 (together, “Green Card Examination Report”: see First Clarke Affidavit at Annexure JC-1) was completed by the Department in respect of CYV17’s wife’s Green Card, but not provided to CYV17 or CYV17’s wife (there is no dispute that the two documents are the same);
(t)on 16 March 2016 CYV17’s wife (but not CYV17) was notified for the purposes of s 487ZJ(2) of the Migration Act that the Green Card she had submitted had been seized because it was considered to be a “bogus document” because it was “counterfeit”: CB 293;
(u)at some time in early 2016 CYV17 attended an interview with the Department, although the date of this interview is not clear: CB 299 at [1];
(v)on 28 April 2016 CYV17’s wife attended an interview with the Department: CB 304 at [1], 367 fn 75;
(w)on 11 May 2016 CYV17’s legal representative provided to the Department:
(i)a statutory declaration of CYV17 declared 10 May 2016: CB 299–300 and attached copy of birth certificate: CB 302-303, 321;
(ii)a statutory declaration of CYV17’s wife dated 10 May 2016: CB 304-305, and attached marriage document: CB 307, 320; and
(iii)post-interview submissions: CB 308-318;
(x)on 26 October 2016 CYV17’s wife (but not CYV17) was invited to comment on the allegedly bogus document: CB 322-325. Although the invitation occurred before any decision in relation to the Protection Visa applications, the invitation included the following comments “For reasons I will outlined [sic] in my decision record, I am not satisfied …” and “I must refuse your application …”: CB 323;
(y)on 8 November 2016 CYV17’s wife’s legal representative provided a submission to the Department in relation to CYV17’s wife’s “bogus” Green Card: CB 326-330;
(z)on 10 November 2016 the Delegate refused the Protection Visa applications: CB 335-372;
(aa)on 11 November 2016 the Department issued a certificate pursuant to s 473GB(5) of the Migration Act in relation to CYV17’s wife’s Green Card Examination Report (“473GB Certificate”): CB 373; and
(bb)the Authority affirmed the Delegate’s Decision on 21 April 2017: CB 385-415.
Authority Decision

In the Authority Decision the Authority:
(a)regarding the country of reference, ethnicity, documents and passports:
(i)accepted that CYV17 was a national of Iran: CB 388 at [9] and that his children were born in Iran in 2010: CB 388 at [10]. The Authority accepted that CYV17’s wife’s parents originated from Iraq, that her family were expelled to Iran during the regime of Saddam Hussein and that her family was of Faili Kurdish ethnicity: CB 389 at [20]. The Authority also accepted that CYV17’s wife’s family registered in Iran as refugees and had held Green Cards: CB 389 at [20];
(ii)did not accept that CYV17’s wife continued to reside in a refugee camp in Yazd after 1993 or did not have identity cards: CB 390 at [21]. In view of inconsistencies in CYV17’s wife’s evidence: CB 390 at [22]-[26] the Authority was not satisfied that CYV17’s wife or her family lived in a refugee camp after 1993: CB 390 at [27]. The Authority also did not accept CYV17’s wife’s account of what had happened in relation to their registration cards and was not satisfied that CYV17’s wife had been truthful in relation to these claims: CB 390 at [32];
(iii)with reference to country information: CB 392 at [33]-[34], found that the failure to produce evidence of a BAFIA registration certificate undermined CYV17’s wife’s claimed status in Iran: CB 392 at [35];
(iv)accepted that CYV17 and his wife were married but did not accept that they were unsuccessful in registering the marriage as their evidence in this regard was inconsistent and vague: CB 393 at [43];
(v)with reference to country information, and considering the nature, context and provenance of CYV17’s shenasnameh [a birth certificate booklet: CB 277 or better known as a “life book”: CB 354], was not satisfied it was a genuine document: CB 394 at [48];
(vi)did not consider plausible or credible the claim that CYV17’s father-in-law attended the registry office or presented invalid cards to the authorities in an attempt to obtain marriage registration and documentation for CYV17 and his wife. The Authority was not satisfied that CYV17’s father-in-law was stateless and undocumented at the time he attended the registry office or that he and his family are stateless and undocumented: CB 394 at [50];
(vii)with reference to country information and considering all the evidence before it, was further satisfied that CYV17’s wife would have automatically assumed CYV17’s Iranian citizenship when they were married in 2008 in any event, even if she was not already an Iranian national prior to the marriage: CB 395 at [52];
(viii)was satisfied that the marriage between CYV17 and his wife was legally registered and that the wife is an Iranian national. Therefore, the Authority did not accept that CYV17 and his wife were stopped on the street and taken to the police station because they were unable to provide a marriage certificate, or that CYV17’s wife did not have any identity or would face other issues because she was stateless, undocumented or without status in Iran. The Authority found that the applicants did not face a real chance of harm for these reasons: CB 395 at [53];
(ix)with reference to country information: CB 396 at [56]-[62], found that the children were issued birth records by the hospital in which they were born: CB 396-397 at [63]. Further, the Authority found that the children were able to and did obtain birth certificates and had their birth registered with the Iranian authorities: CB 397 at [65]. The Authority accordingly found that the children were not stateless or undocumented and would not be prevented from enrolling in school or having the opportunities other children had. The Authority found that CYV17 and his children did not face a real chance of harm on this basis: CB 397 at [66];
(x)on the basis of inconsistent evidence: CB 397-398 at [68]-[73], and with reference to country information: CB 398 at [74], found it implausible that the family passed through the airport in Tehran or international airports with fraudulent passports without being detected: CB 398-399 at [76]. The Authority was not satisfied that they left Iran on fraudulent passports: CB 398-399 at [76], see also CB 398-399 at [77]-[78]; and
(xi)given the implausible and inconsistent evidence regarding the circumstances of their departure, did not accept that CYV17’s children or wife departed Iran illegally or on false or fraudulent passports: CB 399 at [80]. The Authority found that CYV17’s children and wife did not face a real chance of harm on this basis: CB 399 at [80];
(b)regarding claims concerning CYV17’s relationship, marriage and tribe:
(i)with reference to country information: CB 399 at [82] and other evidence before it, did not accept that CYV17’s family or tribe opposed his marriage or intended to harm the applicants or CYV17’s wife on this basis: CB 400 at [84] and CB 401-402 at [95]. The Authority considered that if CYV17’s family or tribe opposed the marriage and wished to harm them then CYV17 and his wife would not have stayed in Esfahan after their marriage for some two years without incident. Further, because they did, this supported the view that the family and tribe did not oppose the marriage: CB 400 at [84]. The Authority found that the fact that the wedding celebration was at CYV17’s father’s house suggested that the marriage was supported by CYV17’s tribe and family: CB 401 at [94]. Further, had CYV17’s family or tribe wished to hurt CYV17 they could have done so during the period that he moved to Yazd from 2010 before departing Iran in July 2012: CB 401-402 at [95]. The Authority found that the applicants and CYV17’s wife would not face a real chance of honour killing or harm from CYV17’s family or tribe or anyone else for reasons relating to their marriage: CB 401-402 at [95];
(ii)having regard to the inconsistent evidence provided by CYV17 and CYV17’s wife: CB 402-403 at [96]-[100], did not accept that they were ever stopped or asked for their marriage certificate or identity documents, or that the authorities ever sought to contact their family to confirm their marriage, while they were travelling: CB 403 at [101]. Further, given that it had found that the marriage was legally registered, the Authority did not accept it was risky for CYV17’S wife to go out alone or that CYV17 and CYV17’s wife did not go out together because they would be suspected of being an unmarried couple: CB 403 at [102]. The Authority found that CYV17 and CYV17’s wife did not face any problems from the Iranian authorities for reasons relating to their marriage and was not satisfied that they would face a real chance of harm or discrimination because of their mixed marriage (between a Shia Persian Iranian and a Shia Faili Kurd Iranian): CB 403-404 at [103];
(iii)with reference to country information: CB 404 at [107], was not satisfied that:
(A)CYV17’s family would face a real chance of discrimination or harm for reasons of race, ethnicity or religion: CB 404 at [107]-[108];
(B)CYV17 faced a real chance of harm on the basis of CYV17’s wife’s claimed status as stateless, undocumented or as a Faili Kurd: CB 405 at [109];
(iv)did not accept that CYV17’s wife could not contribute to the cost of the family and found that the family would be able to access government services, protection and assistance as Iranian nationals: CB 405 at [110]. Further, the Authority found that CYV17 and CYV17’s wife would be able to obtain gainful employment on return. As such, the Authority was not satisfied that the applicants faced a real chance of financial or economic hardship amounting to serious harm: CB 405 at [110] or significant harm: CB 410 at [141];
(c)regarding claims concerning CYV17’s political opinion as there was no evidence that CYV17 was arrested, suffered any harm or was of interest to the authorities by reason of his participation in the 2009 protest, was not satisfied that he or his family faced a real chance of harm for this reason: CB 405-406 at [114]-[117]. Nor was the Authority satisfied that they would face harm for any reason related to CYV17’s actual or perceived political opinions: CB 406 at [119]; and
(d)regarding claims concerning CYV17 being an asylum seeker, returnee and the data breach:
(i)accepted that CYV17 and CYV17’s wife were affected by the Department’s inadvertent disclosure of data in early 2014: CB 407 at [125]. It did not accept on the basis of the family’s accepted profiles that this would place them at a greater risk: CB 407 at [127], or that they were at a high risk of retribution for their actions in seeking asylum: CB 407 at [128];
(ii)with reference to country information: CB 407-408 at [129]-[130], was not satisfied that the family faced a real chance of harm by reason of their activities in Australia, or their status as asylum seeker returnees who resided in the West and were affected by the data breach: CB 408 at [130] and [133]; and
(iii)having considered the claims singularly and cumulatively, was not satisfied that the applicants were persons to whom protection obligations were owed: CB 408-409 at [134]-[146].
Amended Judicial Review Application
Jurisdictional Error Required
This Court may set aside the Authority Decision upon judicial review if it is affected by jurisdictional error: Migration Act, ss 474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1. An instance where the Authority:
(a)identifies a wrong issue;
(b)asks the wrong question;
(c)ignores relevant material; or
(d)relies on irrelevant material,
in such a way that the Authority’s exercise or purported exercise of power is thus affected resulting in a decision exceeding, or a failure to exercise, any Authority or powers given to the Authority under the Migration Act, may constitute a jurisdictional error: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ.
To constitute jurisdictional error the error must be material in the requisite sense explained in MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441 (“MZAPC”) at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ as follows:
2.Materiality was explained in Minister for Immigration & Border Protection v SZMTA (2019) 264 CLR 421 to involve a realistic possibility that the decision in fact made could have been different had the breach of the condition not occurred. Existence or non-existence of a realistic possibility that the decision could have been different was explained to be a question of fact in respect of which the plaintiff in an application for judicial review of the decision on the ground of jurisdictional error bears the onus of proof.
The onus is upon the applicants to establish jurisdictional error in the Authority Decision: BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 268 CLR 29; (2019) 93 ALJR 109; (2019) 373 ALR 196 (“BVD17”) at [38] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ; Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 1047; (2017) 252 FCR 352; (2017) 347 FLR 173 at [47] per Griffiths, White and Bromwich JJ.
Ground 2
Ground 2 of the Amended Judicial Review Application is as follows:
2.In failing to invite the Applicants to an interview or to otherwise provide new information, the IAA unreasonably failed to exercise its powers to get new information in s 473DC(3) of Act or unreasonably performed its duty to conduct the review in s 473CC of the Act.
Particulars of ground 2
(i)It was a jurisdictional limit of the IAA’s duty to conduct a review, and of its power to get new information, that the IAA act reasonably.
(ii) The IAA affirmed the decision under review without interviewing the Applicants or otherwise getting new information.
(iii) The IAA’s failure to interview the Applicants or otherwise get new information was unreasonable in all of the circumstances of the case, including that:
a. objectively, the Applicants’ claims relied in large part on the claims of the First Applicant’s wife, including those that had been made in written material and oral interviews to which the Applicants could not be assumed to be privy;
b. in fact, the IAA rejected aspects of the First Applicant’s wife’s claims on issues about which it might have been thought that the Applicants could comment if invited; and
c. in fact, the IAA’s rejection of those aspects of the First Applicant’s wife’s claims contributed to the IAA’s rejection of the Applicants’ claims.
CYV17’s Submissions
In relation to ground 2, CYV17 submitted that:
(a)a striking feature of the proceedings in the Authority was that, despite the interrelated nature of the CYV17’s and CYV17’s wife’s claims, which was acknowledged by the Authority: CB 386 [3], CYV17’s wife had been cleaved off from the review by reason of having provided a “bogus document” and thus being an excluded fast track review applicant. As a result, the review was conducted in large part based on information that had been provided by a person who was no longer an applicant, and could thus no longer seek to make submissions or give evidence to the Authority;
(b)another striking, and compounding, feature of the proceedings in the Authority is that they came after a decision-making process at the Delegate stage that did not comply with s 57 of the Migration Act. The non-compliance arose by reason of the Delegate’s failure to invite CYV17 to comment on information provided by CYV17’s wife (such as things said in her interviews) which was adverse to CYV17’s claims (such as inconsistent accounts which cast doubt on CYV17’s wife’s statelessness). This was “relevant information” within the meaning of s 57(1) of the Migration Act, yet the Delegate did not invite CYV17’s to comment on it as required by s 57(2) of the Migration Act;
(c)in light of those matters, the Authority acted unreasonably in failing to exercise the power to invite CYV17 to give information (whether in writing or at interview) about the things communicated by CYV17’s wife which the Authority subsequently found to be adverse to his claims: see for example: CB 393 at [43], 394 at [49], 396 at [63], 397 at [71], 399 at [76], 401 at [93], 403 at [101];
(d)here, the unreasonableness arose from the following circumstances:
(i)objectively, CYV17’s claims relied in large part on the claims of CYV17’s wife, including those that had been made in written material and oral interviews to which CYV17 could not be assumed to be privy;
(ii)in fact, the Authority rejected aspects of CYV17’s wife’s claims on issues about which it might have been thought that CYV17 could comment if invited. See, for example, the Authority’s rejection of CYV17’s wife’s claims that the father or the head of the family was the only person who could apply to change Green Cards to White Cards: CB 391, [31]–[32]. The preparedness or otherwise of the Iranian authorities to provide documents to persons other than the male member of the family was a matter about which CYV17 could give evidence, as suggested by his account of trying to obtain marriage documentation from the authorities: CB 242 [10]; and
(iii)in fact, the Authority’s rejection of those aspects of CYV17’s wife’s claims contributed to the Authority’s rejection of CYV17’s claims;
(e)it might be said that the above argument is an attempt to shoehorn procedural fairness concerns into the obligation of reasonableness, however there is considerable “overlap”: BVD17 at [34] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ;
(f)indeed, the content of the reasonableness condition is informed by the limits on the natural justice hearing rule in s 473DA of the Migration Act: Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181 (“Li”) at [99] per Gageler J. Perhaps more strongly, in BVD17 at [62] per Edelman J it was stated that:
62.It is hard to imagine any circumstance in which the exercise of a power in a manner contrary to the requirements of procedural fairness that would be implied but for the purported exclusion by s 473DA(1) would not be legally unreasonable.
(g)in the unusual circumstances of this case, the statutory prohibition on unreasonableness (as informed by background notions of procedural fairness) demanded that the Authority invite CYV17 to comment on information provided by CYV17’s wife to the Delegate;
(h)in ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; (2020) 269 CLR 439; (2020) 94 ALJR 928; (2020) 383 ALR 407 (“ABT17”) the High Court characterised an error of the type complained of here as a transgression of the reasonableness condition implied into both the power to get new information under s 473DC(3) of the Migration Act and the duty to conduct a review under s 473CC(1) of the Migration Act; and
(i)the same is true of the error in the present case.
In relation to ground 2 and materiality CYV17 submitted that:
(a)the error in the present case was material because, as in ABT17, country information alone did not provide an independent basis for the Authority’s decision. Rather, as was acknowledged by the High Court in ABT17 at [32] per Kiefel CJ, Bell, Gageler and Keane JJ (emphasis added):
32.The Authority’s statement of reasons for its decision made clear that its conclusion was not solely dependent on country information. The conclusion was expressed to be based in part on the appellant’s ‘personal circumstances’, which included the Authority’s lack of satisfaction that he had a profile that would be of interest to Sri Lankan authorities.
(b)here, the Delegate’s Decision under review was affirmed by the Authority not solely on the basis of the country information which was before it. Rather, the “personal circumstances” of the applicants – namely, the fact that CYV17 and the children were not found to be stateless – was the reason for dismissing a number of their claims. CYV17 had never been afforded the opportunity to respond to the critical and adverse finding relating to the disputed Green Card; and
(c)had the Authority exercised its discretion under s 473DC(3) of the Migration Act to address this informational gap, a different outcome could conceivably been reached, and thus the error must be found to be material.
Minister’s Submissions
In relation to ground 2 the Minister submitted that:
(a)it is uncontroversial that:
(i)the “primary rule” is that, subject to limited exceptions, the Authority is to conduct its review “without accepting or requesting new information and without interviewing the referred applicant”: Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217; (2018) 92 ALJR 481; (2018) 353 ALR 600 (“Plaintiff M174/2016”) at [9] per Gageler, Keane and Nettle JJ; and
(ii)legal unreasonableness in the context of s 473DC of the Migration Act is “not to be assessed through the lens of procedural fairness to the applicant” and imposes a high threshold: Minister for Home Affairs v DUA16; Minister for Home Affairs v CHK16 [2020] HCA 46; (2020) 271 CLR 550; (2020) 385 ALR 212; (2020) 95 ALJR 54 (“DUA16”) at [26]-[34] per Kiefel CJ, Bell, Keane, Gordon and Edelman JJ.
(b)the comments in BVD17 at [67] per Edelman J were made in a separate judgment and were not embraced by the majority of the High Court;
(c)the matters raised by CYV17 are not capable of meeting this threshold;
(d)the Minister does not accept that CYV17’s wife could no longer seek to make submissions or give evidence to the Authority”. CYV17 had an opportunity to submit further material, including any material from CYV17’s wife. Whether the Authority was able to consider new information was, in any event, governed by the provisions in s 473DD of the Migration Act; and
(e)nor does the Minister accept that the Delegate failed to comply with s 57 of the Migration Act by not putting matters such as CYV17’s wife’s inconsistent accounts to CYV17. The “information” contemplated by this section does not extend to such “inconsistencies”: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190; (2007) 235 ALR 609; (2007) 96 ALD 1 (“SZBYR”) at [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ; Plaintiff M174/2016 at [9] per Gageler, Keane and Nettle JJ. A further difficulty for CYV17 is that full transcripts of the interviews before the Department do not appear to be in evidence: as to which, see NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241 at [21] per Beaumont, Merkel and Hely JJ.

The Court ought not to accept CYV17’s contentions regarding the centrality of this issue to the review. At CB 389 [20] the Authority accepted that CYV17’s wife’s family had been registered as refugees in the past and had previously held Green Cards. At CB 395 at [52] the Authority found that even if it had accepted the claims that the wife was not an Iranian citizen prior to her marriage, the country information before it established that she would have automatically assumed CYV17’s Iranian citizenship when she was married in 2008. It is therefore far from clear that any error regarding the Green Card or her claimed statelessness in 2002 was central, or material, to the Authority’s ultimate conclusions on review.
Consideration – Ground 2
Section 473DC of the Migration Act provides as follows:
(1)Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information ) that:
(a)were not before the Minister when the Minister made the decision under section 65; and
(b) the Authority considers may be relevant.
(2)The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(3)Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a) in writing; or
(b) at an interview, whether conducted in person, by telephone or in any other way.
The primary rule applicable to so called fast track reviews by the Authority under Pt 7AA of the Migration Act is that they be conducted by the Authority on the review material provided to the Authority “without accepting or requesting new information and without interviewing the referred applicant”, subject to certain exceptions including those provided for in s 473DC of the Migration Act: Plaintiff M174/2016 at [22] per Gageler, Keane and Nettle JJ.
The power in s 473DC must be exercised reasonably: Plaintiff M174/2016 at [21] per Gageler, Keane and Nettle JJ; DUA16 at [27] per Kiefel CJ, Bell, Keane, Gordon and Edelman JJ, with reasonableness being “shaped by the statutory context”: DVO16 v Minister for Immigration and Border Protection [2021] HCA 12; (2021) 95 ALJR 375 (“DVO16”) at [68] per Edelman J.
The requirements of legal reasonableness are well known. They do not permit decisions which are arbitrary in the sense of being unjustifiable or indefensible: Li at [105] per Gageler J. In DVO16 at [21] per Kiefel CJ, Gageler, Gordon and Steward JJ considering legal unreasonableness in the context of s 473DC of the Migration Act, stating that:
21.Whether or not the decision of the Authority was reached in breach of the reasonableness condition implied into its procedural duty and powers would turn, on either analysis, on whether the decision-making course in fact adopted by the Authority in the circumstances known to it was open to a reasonable member of the Authority cognisant of the statutory obligation of the Authority ordinarily to conduct its reviews without accepting or requesting new information or interviewing the referred applicant, cognisant of its powers to get new information in an interview with the referred applicant and to consider that information, and mindful of the statutory exhortation to the Authority to pursue the objective of providing a mechanism of limited review that is both “efficient” and “quick”.
In Plaintiff M174/2016 at [47] and [49]-[50] per Gageler, Keane and Nettle JJ it was observed that:
47.Non-compliance with s 57 is different, because it denies an applicant an opportunity to respond to prejudicial adverse information and to have any response included in the review material to be given to the Authority in a review under Pt 7AA. If the procedures for which Pt 7AA provides were so constrained as to preclude the Authority from conducting the review in a manner which would negate the want of procedural fairness that would be occasioned by an applicant having been denied the opportunity that s 57 required, that would be a powerful and potentially decisive consideration weighing in favour of the plaintiff's construction. The procedures, however, are not so constrained.
…
49.The other scenario, which the plaintiff argues exists in the present case, is where relevant information in respect of which there has been non-compliance with s 57(2) was before the Minister or delegate at the time of making the decision to refuse to grant the protection visa. The relevant information in that scenario would not itself be new information and could not become new information. Were the Authority in that scenario to consider that the information may be relevant to its own consideration on the review, however, the Authority would not lack power to fashion its procedure so as to bring the relevant information to the attention of the referred applicant and to invite the applicant to respond. The Authority would have the capacity to exercise the discretion conferred on it by s 473DC(3) to invite the referred applicant to give new information in response to the relevant information and, in the context of issuing that invitation, to give the relevant information or particulars of it to the referred applicant. And the Authority would risk transgressing the bounds of reasonableness in the conduct of the review under s 473DB were the Authority to go on to treat the information as the reason, or a part of the reason, for affirming the decision to refuse to grant the protection visa without first exercising the discretion conferred by s 473DC(3) to issue such an invitation.
50There could be no doubt that any new information that might be provided by the referred applicant in response to such an invitation or of the applicant's own volition in that other scenario – if relevant, responsive, credible, and about the applicant or another person – would meet the preconditions for consideration by the Authority set out in s 473DD(a) and in s 473DD(b)(ii). The new information would meet the precondition set out in s 473DD(a) because the circumstances giving rise to the occasion for consideration of the information – prior non-compliance with s 57(2) – could not be regarded as anything other than exceptional. The new information would meet the additional precondition set out in s 473DD(b)(ii) because that information would not previously have been known by the Minister and because, had the information been known by the Minister, the information may have affected the consideration of the referred applicant's claims.
Legal unreasonableness and procedural fairness may overlap in certain circumstances: Li at [99] per Gageler J; BVD17 at [34] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ.
The circumstances of this case are somewhat unusual insofar as CYV17’s wife provided information to the Delegate which was subsequently relied upon or referred to by the Authority in a manner adverse to CVY17, not merely because of perceived inconsistencies, but also because of doubts that the Authority had concerning the truthfulness of CYV17’s wife: see, for example, CB 390 at [27]. And so the Authority made observations:
(a)concerning when CYV17’s wife left a refugee camp, including whether it was in 2009 after she married CYV17, or earlier (going as far back as 1993): CB 390 at [26]-[27];
(b)that the evidence of CYV17 and his wife was “problematic” in relation to their attempts to register their marriage: CB 393 at [43], the “problematic” nature of their evidence extending to their evidence about their children’s birth records: CB 396-397 at [63];
(c)about the status of CYV17’s wife’s father (CYV17’s father-in-law), and whether her father and CYV17 went to a registry office to register the marriage of CYV17 and his wife, and if so how many times they did so, and whether they possibly went to different “organisations” to try to register the marriage: CB 394 at [49]-[50];
(d)about the departure from Iran through Tehran Airport of CYV17, his wife and their children, on allegedly fraudulent passports, and CYV17’s wife’s evidence undermining the credibility of the claims of CYV17 (as well as her own claims) about those events: CB 399 at [76];
(e)about the signing of the marriage contract, and whether it was signed at CYV17’s home or at CYV17’s wife’s father’s house (they being about four hours’ drive from one another): CB 401-402 at [93] and [95]; and
(f)as to whether CYV17 and his wife had travelled internally in Iran, and whether they had been stopped and asked for marriage documents by Iranian authorities: CB 403 at [101].
A number of these matters were matters about which evidence was taken from interviews with CYV17’s wife prior to the Delegate’s Interview, such as the initial arrival interview, and were not matters in relation to which CYV17 would have been aware of in terms of what was actually said at those interviews. These were matters which went beyond mere evidentiary inconsistencies, and which were therefore not precluded from being “information” for the purposes of s 57 of the Migration Act: SZBYR. It is not apparent that CYV17’s wife’s evidence, insofar as it was later found by the Authority to undermine or affect the credibility of CYV17’s evidence, was put to CYV17 at the Delegate’s Interview, whether in substance or otherwise: see Second Clarke Affidavit, Annexure JC-1. In circumstances where the Authority did not exercise any powers to obtain new information, and where it relied on the information obtained from CYV17’s wife but not put to CYV17 at the Delegate’s Interview (or otherwise it would appear), CYV17 has unreasonably been denied an opportunity to respond to prejudicial adverse information: Plaintiff M174/2016 at [47] and [49]-[50] per Gageler, Keane and Nettle JJ. That on its face constitutes jurisdictional error in the Authority Decision.
The error was jurisdictional because it was material: MZAPC. This was a matter where the Authority, contrary to the Minister’s Submissions, did not have an independent basis for making the finding that whatever CYV17’s wife’s citizenship status was prior to her marriage to CYV17 she automatically obtained Iranian citizenship upon her marriage to CYV17. The Authority Decision in relation to this issue, was, rather, made having regard to “all” of the “evidence” and “information” before it: CB 395 at [52]-[53]. As such it was a cumulative assessment which led to the making of the impugned finding. Had the Authority exercised its discretion to obtain new information, or to seek comment from CYV17 on the adverse prejudicial information arising from what had apparently been said by his wife, it is quite possible that the review by the Authority might have resulted in a different outcome.
For the above reasons ground 2 has been made out and establishes material jurisdictional error in the Authority Decision.
Ground 3
Ground 3 of the Amended Judicial Review Application is as follows:
3.The Authority’s review was beyond jurisdiction by reason of the invalidity of the certificate purportedly issued by the Secretary under s 473GB of the Act.
Particulars of ground 3
(i) The Secretary purported to issue a certificate under s 473GB of the Act in relation to the First Applicant’s wife’s ‘Green Card Document Examination Case Report’ (Green Card Examination Report).
(ii) The specified reason for the issuing of the certificate was that the Green Card Examination Report ‘contains information on forensic document examination techniques and document security features that may be used by people smugglers to produce more sophisticated counterfeit documents.’
(iii) The specified reason was not capable of forming the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed.
(iv) Accordingly, the certificate was invalid.
(v) The invalidly issued certificate, and the treatment of it as valid, amounted, without more, to an unauthorised act in breach of a limitation within the statutory procedures which condition the performance of the overarching duty of the Authority to conduct a review and was material.
CYV17’s Submissions
In relation to ground 3 CYV17 submitted that:
(a)the certificate in the present case stated, at CB 373, the following reason for non-disclosure:
It contains information on forensic document examination techniques and document security features that may be used by people smugglers to produce more sophisticated counterfeit documents.
(b)in the present case, there being no ground of privilege or statutory immunity from disclosure, the question is whether the Secretary’s stated reason for the certificate was capable of grounding a claim for public interest immunity. There are two reasons why that stated reason was incapable of grounding a claim for public interest immunity (either by establishing that the information did not relate to matters of state or that the balancing exercise could not weigh in favour of non-disclosure):
(i)first, that which was feared by reason of the disclosure of the document was the production of counterfeit documents by people smugglers, presumably specifically Iranian passports and presumably outside of Australia. The production of counterfeit Iranian passports in, say, Iran is not an offence against Australian law (recalling the presumption against extra-territoriality that requires almost all Australian offences to have a nexus to the territory of Australia: Walker v New South Wales [1994] HCA 64; (1994) 182 CLR 45; (1994) 69 ALJR 111; (1994) 76 ACrimR 173; CLR at 49 per Mason CJ, and thus it is hard to see how the disclosure of the information would, for example, “prejudice the prevention, investigation or prosecution of an [Australian] offence”: Evidence Act 1995 (Cth) (“Evidence Act”) s 130(4)(c);
(ii)second, the reason for non-disclosure was put at too speculative a level as to satisfy a claim of public interest immunity. In particular, it was insufficient for it to be feared that the document “may be used by people smugglers”: CB 373 because the language of the Evidence Act is that information will be taken to relate to matters of state if it “would … prejudice the prevention, investigation or prosecution of an offence”: Evidence Act s 130(4)(c) (emphasis added);
(c)the argument that the stated reason was not capable of supporting a public interest immunity claim is supported by analogy with AGG17 v Commonwealth of Australia [2018] FCA 242 (“AGG17”). That case concerned a dispute about pre-trial disclosure of a document examination report in respect of a suspected bogus Afghani identity document. The basis for the public interest claim was said to be that disclosure of the document examination report would “reveal the methods used by the Department in the course of its regular examination of identity documents” and “likely frustrate, compromise or impede the Department’s ongoing ability to detect fraudulent and counterfeit identity documents”: AGG17 at [20] per Charlesworth J. Ultimately, the Court rejected any prima facie claim to public interest immunity in respect to certain parts of the document: AGG17 at [41] per Charlesworth J and, in respect of the remaining parts of the documents, held that the public interest in disclosure outweighed the public interest in non-disclosure: AGG17 at [58] per Charlesworth J.
In relating to ground 3 and materiality, CYV17 submitted that:
(a)there is a question as to whether invalidity of the certificate does not necessarily vitiate the Authority’s review. In Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; (2017) 257 FCR 111 (“BBS16”) at [85]–[110] per Kenny, Tracey and Griffiths JJ the Full Court of the Federal Court rejected a contention that it is a jurisdictional error per se to rely on an invalid certificate under s 473GB of the Migration Act: see also AYF16 v Minister for Immigration and Border Protection [2018] FCAFC 129; (2018) 264 FCR 654 (“AYF16”) at [21]–[40] per McKerracher, Murphy and Davies JJ. The High Court subsequently left the question open in Minister for Immigration and Border Protection v CED16 [2020] HCA 24; (2020) 94 ALJR 706; (2020) 380 ALR 216 (“CED16”) at [26] per Gageler, Keane, Nettle and Gordon JJ with reference to the potential argument that an invalid certificate “amount[ed], without more, to an unauthorised act in breach of a limitation within the statutory procedures which condition the performance of the overarching duty of the [Authority] to conduct a review”: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421; (2019) 93 ALJR 252; (2019) 363 ALR 599; (2019) 163 ALD 38; (2019) 75 AAR 75 (“SZMTA”) at [44] per Bell, Gageler and Keane JJ. Here, the better view is that the invalid certificate was material, and thus did vitiate the review, because the error changed the nature of the material to which CYV17 had access and thus deprived CYV17 of the opportunity to make submissions as to that information. Admittedly, a similar argument was rejected IN CRT16 v Minister for Immigration & Anor [2020] FCCA 2132 (“CRT16”) at [83]–[102] per Judge Barnes.
Minister’s Submissions – Grounds 3, 4 and 5
In relation to grounds 3, 4 and 5, the Minister submitted that:
(a)the Minister does not accept that the certificate was invalid, as is contended in ground 3. Section 130(4) of the Evidence Act is neither expressed nor intended to be an exhaustive statement of the law on this issue: Ryan v State of Victoria [2015] VSCA 353 at [65] per Tate JA. In any event, it is clear enough that if people smugglers are able to produce more sophisticated counterfeit documents, then this would prejudice the prevention of offences involving use of such documents. This was capable of forming the basis for a “claim” of public interest immunity;
(b)as is appropriately acknowledged by CYV17, there is case law against their contentions regarding the consequences of invalidity in any event. In CRT16 at [83]-[93] per Judge Barnes this Court (then the Federal Circuit Court) followed BBS16 in finding that the procedural requirements and consequences that have been found in relation to nondisclosure certificates issued under s 438 of the Migration Act did not apply to those issued under s 473GB of the Migration Act within the context of the fast track regime, and it has not been demonstrated that CRT16 is plainly wrong;
(c)the Minister also does not accept that there is sufficient basis for the drawing of the inferences and conclusions contended for by ground 4;
(d)the Authority was not required to give reasons for non-exercise of a procedural power contained within s 473GB(3) of the Migration Act: BVD17 at [37]-[39] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ. The fact that it did not give such reasons is insufficient evidence that it failed to consider the exercise of such power. In this case, it is readily comprehensible why the Authority may not have been inclined to exercise its power under s 473GB of the Migration Act, or to inform the applicants of the certificate. There are at least two reasons for this:
(i)firstly, the applicants were well aware of the existence of the underlying document (the Green Card Examination Report) and its substance from the Delegate’s Decision: see CB 338-341; and
(ii)secondly, the Authority did not place the reliance upon the Green Card Examination Report that the Delegate did. Instead, the Authority’s basis for rejecting the relevant claims was based upon other difficulties in the evidence, for reasons that it gave;
(e)the Minister also does not accept that materiality has been established in relation to grounds 3 or 4;
(f)the Minister submits that it would not be realistic to conclude that a “fair-minded lay observer with knowledge of the material objective facts might reasonably apprehend that the Authority might not bring an impartial mind” to determination of the matter: CNY17 at [50] per Nettle and Gordon JJ, as is contended by ground 5. There is no reason to think that the Authority did not exercise its power because of some special distrust of CYV17 based upon his connection to people smugglers. The obvious inference to be drawn, rather, is that the Authority may not have seen any need for the exercise of its powers in circumstances where:
(i)disclosure regarding the substance of the document had already occurred; and
(ii)the document was not central to its reasoning; and
(g)the Minister accordingly submits that grounds 3, 4 and 5 are not capable of succeeding.
Consideration – Ground 3

Section 473GB of the Migration Act relevantly provides that:
(1) This section applies to a document or information if:
(a) the Minister has certified, under subsection (5), that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 473GA(1)(a) or (b)) that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or
(b) the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence.
(2) If, in compliance with a requirement of or under this Act, the Secretary gives to the Immigration Assessment Authority a document or information to which this section applies, the Secretary:
(a) must notify the Authority in writing that this section applies in relation to the document or information; and
(b) may give the Authority any written advice that the Secretary thinks relevant about the significance of the document or information.
(3) If the Immigration Assessment Authority is given a document or information and is notified that this section applies in relation to it, the Authority:
(a) may, for the purpose of the exercise of its powers in relation to a fast track reviewable decision in respect of a referred applicant, have regard to any matter contained in the document, or to the information; and
(b) may, if the Authority thinks it appropriate to do so having regard to any advice given by the Secretary under subsection (2), disclose any matter contained in the document, or the information, to the referred applicant.
(4) If the Immigration Assessment Authority discloses any matter to the referred applicant under subsection (3), the Authority must give a direction under section 473GD in relation to the information.
(5) The Minister may issue a written certificate for the purposes of subsection (1).
In MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081; (2016) 243 FCR 1 at [37] per Beach J, the following was said in respect of s 438 of the Migration Act:
37.Now given that the phrase is referring to public interest immunity, one can appreciate that the certificate on its face is invalid. What had to be specified in the certificate was ‘any reason … that could form the basis for a claim …’. But the only reason stated was ‘contains internal working documents’. But that has never been either a necessary or sufficient basis for public interest immunity, whether at common law (Sankey v Whitlam (1978) 142 CLR 1 at 38-46 per Gibbs ACJ) or under statute (s 130 of the Evidence Act 1995 (Cth)).
More recently, in SZMTA at [19] per Bell, Gageler and Keane JJ, it was explained also in respect of s 438 of the Migration Act:
19.The precondition in s 438(1)(a) is met if the Minister, acting within the bounds of reasonableness and on a correct understanding of the law, has certified that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest for a reason specified in the certificate. The reason so specified must be a reason (other than a reason which would permit certification under s 437) that could form the basis for a claim by the Executive Government of the Commonwealth in a court proceeding that the matter contained in the document, or the information, should not be disclosed. Where no ground of privilege or statutory immunity from disclosure is engaged, the reason specified in the certificate must therefore be a reason capable of grounding a claim for public interest immunity from disclosure at common law or under s 130 of the Evidence Act 1995 (Cth).
The difficulty for CYV17 in relation to ground 3 is that even if the certificate is invalid the law in relation to certificates under s 438 of the Migration Act does not apply to certificates under s 473GB of the Migration Act.
In BBS16 the Full Court of the Federal Court at [99] per Kenny, Tracey and Griffiths JJ held that the finding in MZAFZ that it was a jurisdictional error for the Administrative Appeals Tribunal to act upon a certificate issued under s 438 of the Migration Act which was invalid did not apply to an invalid certificate issued under s 473GB of the Migration Act. In AYF16 another Full Court of the Federal Court decided that BBS16 was correctly decided, or at least was unable to conclude that BBS16 was plainly wrong: AYF16 at [40] and [34] respectively per McKerracher, Murphy and Davies JJ.
In CRT16 the Federal Circuit Court followed BBS16 in finding that the requirements in relation to non-disclosure certificates under s 438 of the Migration Act did not apply to non-disclosure certificates under s 473GB of the Migration Act and that on that basis no jurisdictional error arose merely because of an invalid certificate under s 473GB of the Migration Act: at [90] and [93] per Judge Barnes. In CRT16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 651 (“CRT16 Appeal”) the Federal Court dealt with an appeal from CRT16 in which one of the grounds alleged that the Federal Circuit Court erred in not finding jurisdictional error by the Authority due to the provision of an invalid notification under s 473GB of the Migration Act: CRT Appeal at [45] per Besanko J. The Federal Court found it was not necessary to deal with the question of whether BBS16 was binding (or whether SZMTA applied), and determined that materiality had not been established in relation to any breach: CRT Appeal at [55] per Besanko J.
In circumstances where the issue of whether jurisdictional error arises from invalid certificates under s 473GB of the Migration Act is dealt with directly in judgments of the Full Court of the Federal Court in BBS16 and AYF16 (and not dealt with otherwise by the High Court in relation to s 473GB of the Migration Act), this Court is bound to follow the judgments in BBS16 and AYF16: Suh and Ors v Minister for Immigration and Citizenship and Ors [2009] FCAFC 42; (2009) 175 FCR 515; (2009) 108 ALD 470 at [29] per Spender, Buchanan and Perram JJ; Minister for Immigration and Multicultural and Indigenous Affairs v SZANS [2005] FCAFC 41; (2005) 141 FCR 586; (2005) 215 ALR 733; (2005) 86 ALD 583 at [38] per Weinberg, Jacobson and Lander JJ; CRT16 at [90] per Judge Barnes.
Following BBS16 and AYF16 results in ground 3 being disposed of on the basis that no jurisdictional error arises merely because of the invalidity of the certificate under s 473GB of the Migration Act.
Ground 4
Ground 4 of the Amended Judicial Review Application is as follows:
4.In the alternative to ground 3, if the s 473GB certificate was valid, the Authority erred jurisdictionally by:
a. failing to consider whether to exercise the power in s 473GB(3)(b);
b. unreasonably failing to exercise the power in s 473GB(3)(b); and/or
c. unreasonably failing to disclose that a certificate had been issued.
Particulars of ground 4
(i) As to ground 4(a), the Authority had the power to disclose any matter contained in the Green Card Examination Report to the Applicants. In the present case, the Authority failed to consider the power.
(ii) As to ground 4(b), the Authority had the power to disclose any matter contained in the Green Card Examination Report to the Applicants. In the present case, the Authority failed to exercise that power, which was unreasonable in the circumstances of this case, including because:
A. the issue of the Green Card Examination Report was central to the Applicants’ claims on review;
B. this issue had only previously been raised at interview with the First Applicant’s wife (not the First Applicant);
C. by reason of the fact this had not previously been raised with the First Applicant, it would thus appear that delegate had failed to comply with s 57 in respect of the Applicant, as the apparently bogus nature of the First Applicant’s wife’s Green Card met the meaning of ‘relevant information’ in s 57(1) but had not been the subject of a notification under s 57(2) to the Applicant (as opposed to the First Applicant’s wife, who had been notified); and
D. the ‘pejorative quality’ of the bogus document finding in respect of the First Applicant’s wife, which pejorative quality had the capacity to affect the Applicants application to the Authority.
(iii) As to ground 4(c), the Authority had the power to disclose that a certificate had been issued. In the present case, the Authority failed to exercise that power, which was unreasonable in the circumstances of this case, including because of the matters in sub-paragraphs A. to D. immediately above.
CYV17’S Submissions
In relation to ground 4 CYV17 submitted that:
(a)in relation to the failure to consider exercise of power in s 473GB(3)(b) of the Migration Act the Authority’s reasons do not include any reference to the Green Card Examination Report nor to the possible exercise of the power in s 473GB(3)(b). The Authority was obliged to “turn its mind to whether it thinks it appropriate to disclose any matter contained in the material to the referred applicant”: BBS16 at [96] per Kenny, Tracey and Griffiths JJ. It may be accepted that the Authority’s failure to expressly refer to the power in s 473GB(3)(b) of the Migration Act will not always be sufficient to support a finding that the Authority failed to consider exercising that power: BVD17 at [37]–[40] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ. See also Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594; (2011) 273 ALR 223; (2011) 85 ALJR 327; (2011) 119 ALD 1 at [70] per Gummow J; Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173; (2015) 90 ALJR 197; (2015) 327 ALR 8; (2015) 148 ALD 206 at [25] per French CJ, Bell, Keane and Gordon JJ. Here, however, the “bogus document” issue was so central to CYV17’s claims, but had not been explored with him at the Delegate stage because the document had been provided by his wife, that the power to disclose the related report would have been the subject of express reasoning if it had been considered;
(b)in relation to the unreasonable failure to exercise power in s 473GB(3)(b) of the Migration Act, in the alternative, if the Authority did in fact consider whether to disclose the Green Card Examination Report, it could be argued that it unreasonably failed in not doing so. It is uncontroversial that the power in s 473GB(3)(b) of the Migration Act must be exercised reasonably: SZMTA at [11] per Bell, Gageler and Keane JJ citing Li at [29]–[30] and [63] per French CJ and [98]–[100] per Gageler J. See also BVD17 at [10] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ, with reasonableness being “shaped by the statutory context”: DVO16 at [68] per Edelman J. It is to be recalled that procedural fairness “overlaps” to an extent with reasonableness: BVD17 at [34] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ and [62] per Edelman J. In respect of a similar discretion to that conferred on the Administrative Appeals Tribunal by s 438(3) of the Migration Act, it has been said that the Tribunal “should effect a statutory compromise between the demands of disclosure and confidentiality by disclosing as much as possible of the substance, but not the detail, of the material”: NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 160; (2004) 135 FCR 567 at [86] per Beaumont, Conti and Crennan JJ. It is also to be recalled that “[t]he scheme of Part 7AA is such that the only opportunity which a referred applicant will get to comment on such material is if the Authority decides for itself to disclose the material to CYV17 prior to making its decision on the review”: BBS16 at [97] per Kenny, Tracey and Griffiths JJ;
(c)in light of those general matters, in the present case it was unreasonable for the Authority not to disclose at least the substance of the Green Card Examination Report to CYV17, including because:
(i)the issue of the Green Card Examination Report was central to CYV17’s’ claims on review;
(ii)this issue had only previously been raised at interview with CYV17’s wife (not CYV17): CB 367 fn 75;
(iii)by reason of the fact this had not previously been raised with CYV17, it would thus appear that Delegate had failed to comply with s 57 of the Migration Act in respect of CYV17: AIB16 v Minister for Immigration and Border Protection [2017] FCAFC 163; (2017) 254 FCR 457 at [79]–[88] per Tracey, Mortimer and Moshinsky JJ, as the apparently bogus nature of CYV17’s wife’s Green Card met the meaning of “relevant information” in s 57(1) of the Migration Act but had not been the subject of a notification under s 57(2) of the Migration Act to CYV17 (as opposed to CYV17’s wife, who had been notified); and
(iv)the “pejorative quality”: Sun v Minister for Immigration and Border Protection [2016] FCAFC 52; (2016) 243 FCR 220; (2016) 68 AAR 535 at [4] per Logan J, of the bogus document finding in respect of CYV17’s wife, which pejorative quality had the capacity to affect CYV17’s application to the Authority;
(d)in relation to the unreasonable failure to disclose that the certificate had been issued: it has been explained that the condition of reasonableness in s 473GB(3) of the Migration Act “might arguably require the exercise of the power to disclose that a certificate had been issued … if it is necessary to obtain submissions from an applicant concerning whether there should be disclosure of information that is the subject of the certificate”: BVD17 at [63] per Edelman J. In the present case, it was unreasonable for the Authority to fail to disclose even the fact of the certificate having been issued; and
(e)the above errors were material because, had the information been given, it might have led the Authority to exercise its power to invite CYV17 to give new information about the purportedly bogus document, either at interview or in writing. The interrelated nature of the Authority’s discretion to give information under s 473GB(3)(b) of the Migration Act and the power to get new information in s 473DC(3) of the Migration Act was adverted to in BVD17 at [36] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ.
Minister’s Submissions
The Minister’s submissions in relation to ground 4 are set out at [29(c)-(e)] above.
Consideration – Ground 4
The Green Card Examination Report was integral to the issues in these proceedings and the inter-related nature of the claims made by CYV17 and his wife. Whilst it is not every case that requires it: BVD17 at [37]-[40] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ, the nature of this case was such that the Authority ought to have considered whether to exercise the power in s 473GB(3)(b) of the Migration Act, and, in particular, whether, and if so to what extent it ought to disclose the existence of the Green Card Examination Report: BBS16 at [96] per Kenny, Tracey and Griffiths JJ.
For essentially the same reasons as are set out at [22]-[23] above, and also [48]-[49] below (albeit there in relation to bias), it was unreasonable for the Authority not to disclose to CYV17 the substance of the Green Card Examination Report and that a certificate under s 473GB of the Migration Act had issued. That unreasonableness was material for essentially the same reasons as are set out in relation to materiality for ground 2 at [24] above. It follows that ground 4 has been made out and that it establishes jurisdictional error in the Authority Decision.
Ground 5
Ground 5 of the Amended Judicial Review Application is as follows:
5.The Authority’s review was beyond jurisdiction by reason of an apprehension of bias arising as a result of its failure to disclose the existence and/or contents of the Green Card Examination Report.
Particulars of ground 5
(i) The Authority’s power to conduct a review was conditioned on the need for the Authority to avoid any appearance of bias.
(ii) In the present case, the Authority’s failure to disclose the existence and/or contents of the Green Card Examination Report meant that a fair-minded lay observer might reasonably apprehend that the Authority might not bring an impartial mind to the resolution of the question the Authority was required to decide.
CYV17’s Submissions
In relation to the relevant principles concerning apprehension of bias CYV17 submitted that:
(a)the Authority’s power to conduct a review is conditioned on “the need for the Authority to avoid any appearance of bias”: CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 268 CLR 76; (2019) 94 ALJR 140; (2019) 375 ALR 47 (“CNY17”) at [13] per Kiefel CJ and Gageler J (dissenting in the result);
(b)it is reasonably arguable that the Authority’s Decision was vitiated by apprehended bias by reason of its acceptance of the Department’s assertion that disclosure of certain information to CYV17 might result in it being available to people smugglers.
(c)the test for apprehended bias is whether “a fair-minded lay observer might reasonably apprehend that the … [decision-maker] might not bring an impartial mind to the resolution of the question the [decision-maker] is required to decide”: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 (2000) 75 ALJR 277; (2000) 176 ALR 644 at [6] per Gleeson CJ, McHugh, Gummow and Hayne J, see also Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135 at [20]–[23] at [49] per Kiefel, Bell, Keane and Nettle JJ; Charisteas v Charisteas [2021] HCA 29 at [11] Gageler, Keane, Gordon and Gleeson JJ. The hostility of the law towards perceptions of bias is reflected in the relatively low “double might”: CNY17 at [21] per Kiefel CJ and Gageler J (dissenting in the result), see also CNY17 at [132] per Edelman J;
(d)in the context of Part 7AA of the Migration Act in CYN17 at [100] per Nettle and Gordon JJ it was explained that:
100.… a fair-minded lay observer might apprehend a lack of impartiality on the part of the Authority where: (i) material has been designated as ‘relevant’ by the Secretary; (ii) the Authority must have regard to that material; (iii) the information is prejudicial to the applicant; and (iv) that information is hidden from the applicant. A fair-minded lay observer may well ask why prejudicial information is provided and hidden from the applicant, if that information was not to be taken into account. In those circumstances, the fair‑minded lay observer might apprehend that the decision-maker might decide the case other than on its merits.
(e)further, the Full Court of the Federal Court explicitly acknowledged that bias (and presumably apprehended bias) might arise by the non-exercise of the power of disclosure in s 473GB of the Migration Act: BBS16 at [100] per Kenny, Tracey and Griffiths JJ; see also Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CQZ15 [2021] FCAFC 24 at [88]–[118] per Kenny, Bromberg and Anderson JJ. In CNY17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1568 at [52] per Jagot J it was said that disclosure of information can be a powerful protective factor against an apprehension of bias.
In relation to the application of the above principles to ground 5 CYV17 submitted that:
(a)the apprehension of bias in the present case is illuminated by reference to the Green Card Examination Report’s perceived relevance, the stated reason for its non-disclosure and the unstated conclusion that the limits in s 473GD of the Migration Act would not be sufficient to protect the public interest;
(b)first, the document must have been provided to the Authority by the Secretary pursuant to s 473CB(1)(c) of the Migration Act, that is, the Secretary must have “considered … [it] to be relevant to the review”. In this context “relevant” means “that the material is capable directly or indirectly of rationally affecting the assessment of the probability of the existence of some fact about which the Authority might be required to make a finding in the conduct of its review of the referred decision”: CNY17 at [100] per Nettle and Gordon JJ. It can be understood why the document was thought to be relevant, as CYV17’s wife’s claim to be stateless, which was arguably undermined by the non-original nature of her Green Card, was centrally relevant to CYV17’s claims;
(c)second, the basis upon which the document was not disclosed must have been that the Authority “accepted the Certificate to be valid”: CED16 at [18] per Gageler, Keane, Nettle and Gordon JJ on the basis of the Secretary’s statement at CB 373 that the document:
18.should not be disclosed to the referred applicant … because … it contains information on forensic document examination techniques and document security features that may be used by people smugglers to produce more sophisticated counterfeit documents. (CB 373)
In turn that could only mean that the Authority accepted the Secretary’s implicit assessment that CYV17 was so connected to people smugglers that neither he nor his legal representative could confidently be trusted with the information or documents behind the certificate. This was quite obviously “prejudicial to the referred applicant in the sense that the material might be argued to be capable of founding an inference that the referred applicant is a person of bad character”: CNY17 at [10] per Kiefel CJ and Gageler J (dissenting in the result). If it is accepted, as it should be, that “the fair-minded lay observer might interpret the material as a communication to the Authority of the opinion of the Secretary about the character of the referred applicant” then “the hypothetical fair-minded lay observer can be expected to be reluctant to discount as unrealistic the possibility that the Authority might have been influenced by that communication”: CNY17 at [23] per Kiefel CJ and Gageler J (dissenting in the result);
(d)third, the non-disclosure by the Authority must be understood in light of s 473GD of the Migration Acts, which would have required: see s 473GB(4) of the Migration Act, the Authority to impose stringent restrictions on any disclosure to CYV17 of the Green Card Examination Report. That provision, for example, would have permitted the Authority to provide the document to CYV17 (or his legal representative) subject to a condition that it not be copied, shared or otherwise disclosed to any other person and that it be destroyed after the completing of the application process; and
(e)for those reasons, the fair-minded lay observer might reasonably apprehend that the Authority had come to a view that CYV17 was so connected to people smugglers that neither he nor his legal representative could confidently be trusted to adhere to restrictions on publication and disclosure in respect of the Green Card Examination Report and that, by reason of that apprehension, the Authority might not bring an impartial mind to the resolution of the review. The review was thus vitiated by apprehended bias.
Minister’s Submissions

The Minister’s submissions in relation to ground 5 are set out at [29(f)] above.
Consideration – Ground 5
Did the failure by the Authority to disclose that it had before it the Green Card Examination Report give rise to an apprehension of bias on the part of the Authority?
The Green Card Examination Report was forwarded to the Authority by the Secretary, and it must therefore have been considered, at least by the Secretary, to have been relevant to the Authority’s task of reviewing the Delegate’s Decision. That was undoubtedly correct given the relevance of the Green Card Examination Report to the assessment of CYV17’s wife’s purported statelessness, and its arguable impact on CYV17’s claims. The Green Card Examination Report was therefore relevant material to which the Authority was required to have regard, and it was prejudicial to CYV17, and hidden from CYV17 by the Authority.
It is not to the point that the substance of the Green Card Examination Report had been disclosed before the Delegate, or that it was not, purportedly, central to the Authority’s reasoning. And, if the substance of the Green Card Examination Report had already been revealed, what reason was there for the Authority not to disclose that it had the Green Card Examination Report, even if that meant using powers under s 473GB(4) of the Migration Act to impose conditions on any subsequent disclosure? Likewise, if the Green Card Examination Report did not contribute to, or was not central to, the Authority’s reasoning, why not, at the very least, disclose its provision to the Authority by the Secretary, and impose any necessary conditions on subsequent disclosure?
In the circumstances set out above it is fair to observe that a fair-minded lay observer might apprehend that the failure by the Authority to disclose that it had the Green Card Examination Report before it might be because the Green Card Examination Report was utilised in a manner prejudicial to CYV17: CNY17 at [100] per Nettle and Gordon JJ. It follows that ground 5 is made out in that the Authority Decision may have been affected by apprehended bias on the part of the Authority, and that that constitutes jurisdictional error in the Authority Decision.
Ground 6
Ground 6 of the Amended Judicial Review Application is as follows:
6.The Authority acted illogically or irrationally: in finding on a critical question of fact that persons other than a father or head of the family could apply to change ‘Green Cards’ to ‘White Cards’; and in reasoning from that finding to the finding that the First Applicant’s wife was not stateless in 2002.
Particulars of ground 6
(i) The Authority made the impugned findings at paragraphs 31 and 32 of its reasons.
(ii) The first impugned finding is that persons other than a father or head of the family could apply to change ‘Green Cards’ to ‘White Cards’, which finding was illogical or irrational by reason of it being a personal assumption made without any apparent connection with country information, material or common experience of Iranian authorities.
(iii) The consequential finding that the First Applicant’s wife was not stateless in 2002 depended on the first impugned finding, and on an illogical failure to account for the fact that the First Applicant’s wife may have been mistaken about who could apply to change ‘Green Cards’ to ‘White cards’, and was thus also illogical or irrational.
CYV17’s Submissions
In relation to ground 6 CYV17 submitted that:
(a)here, the impugned finding at CB 391 at [31] was supported by the following statement:
There is no credible information before me to suggest that the father or the head of the family was the only person eligible to change green cards into white cards.
(b)that statement must be understood to be based on a negative assumption that, in the absence of other information, a person other than the father or head of the family is eligible to change Green Cards into White Cards. There was nothing in the country information or evidence before the Authority to support that assumption;
(c)in fact, the country information tended against the impugned finding, especially the information relating to governmental endorsement of gender hierarchies in Iranian society. For example, the Danish Refugee Council report that was before the Authority: see exhibit to First Clarke Affidavit, included the following (emphasis added):
Asked how Khavaris without proper documents can prove their Iranian roots, the source informed that if they had a father or a grandfather or great-grandfather on the father’s side of the family, they should be able to submit some written documentation to prove it. In case they have no documentation at all, they can approach the authorities through their male relatives. The head of the family may appear in the Family Court to confirm the family relation. If the court approves, Iranian nationality will be granted. It is up to the courts to decide what evidence is sufficient, however many cases have been settled with use of DNA evidence.
The Director emphasized that these procedures do not only apply to Khavaris. All ethnic groups along the border can approach an Iranian Family Court to verify that they are of Iranian origin. Asked what they can actually do if they have no documentation, it was stated that according to their experience, applicants manage to provide evidence if they are eager to do so.
(d)further, the evidence before the Tribunal included written and oral evidence from CYV17 about male heads of the family approaching authorities in relation to formal documentation: CB 242 at [10], 392 at [40] and CYV17’s wife’s written evidence was to similar effect: CB 249 at [18];
(e)the irrationality or illogicality is thus analogous with that identified in SZHYH v Minister for Immigration and Border Protection (No 3) [2019] FCA 589; (2019) 165 ALD 463; (2019) 78 AAR 464 (“SZHYH (No 3))” at [46] and [48] per Allsop CJ where it was said (emphasis added):
46.Related to these matters concerned with his leaving China was the assumption made that if the appellant had been on bail the authorities would have required him to surrender his passport. There was no basis in the country information or any other material from [sic] that assumption. The Tribunal was bringing (without any apparent basis in expressed expertise, country information on [sic] material before it) an apparent personal assumption forward as a critical factor in a finding of disbelief.
…
48.It was critical to finding that the central event of his story did not take place that it was not credible that SZHYH would be arrested two weeks after a protest. There was no foundation in logic, or experience, or material for that assumption to be made. There was no country information to support it. One cannot say, one way or the other, without some foundation, that the PSB would or would not take one week, two weeks or three weeks to arrest someone. Why, one asks, is it difficult to accept? Again this is a personal assumption made without any apparent connection with country information, material or common experience of Chinese authorities.
(f)further, whatever was in fact the case about who could change Green Cards to White Cards, what mattered was what CYV17’s wife and her family perceived to be the case. Even if there were some basis in rationality for the Authority’s finding about who could change Green Cards to White Cards, the possibility of a disconnect between fact and perception was not accounted for in the Authority’s reasoning. Reason and logic required the Authority to factor this in before concluding that “the fact that they did not even try to obtain the new cards undermines the claim that they were stateless in 2002”: CB 391 [32]; and
(g)given CYV17’s wife’s claim of statelessness was central to many of CYV17’s claims, and given that the impugned finding was central to rejecting CYV17’s wife’s claim of statelessness, the erroneous approach to the impugned finding was material to the overall conduct of the review.
Minister’s Submissions
In relation to ground 6 the Minister submitted that:
(a)an initial, fundamental difficulty is that the Authority did not make a finding in such terms. At CB 391at [31], the Authority found that there was “no credible information” suggesting that only the father or the head of the family was eligible to change Green Cards into White cards. At CB 391 at [32] the Authority similarly did “not accept” various propositions, concluding that it was “not satisfied that the [A]pplicant’s wife has been truthful”. The findings made in these paragraphs were therefore negative in substance. Grounds based on allegations that there was no evidence, or insufficient evidence, to support the findings are therefore unavailable: Sunchen Pty Ltd v Commissioner of Taxation [2010] FCA 21; [2010] 114 ALD 49 at [42]-[45]. A decision maker does not require “rebutting evidence” in order not to accept particular claims or evidence: AXE17 v Minister for Immigration and Border Protection [2019] FCA 695 at [33]; CQG15 at [65]; Selvadurai v Minister for Immigration and Multicultural Affairs [1994] FCA 1105; [1994] 34 ALD 347 at [7]. The Authority was not bound to find that the country information relied on by CYV17 tended against the impugned finding, as it
(b)was not directly on point, and did not state that other family members could not seek renewal of documents; and
(c)CYV17’s contention that the contended finding was illogical because “there was nothing in the country information or evidence” to justify it must also be viewed with some caution following Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; [2021] 96 ALJR 13; (2021) 395 ALR 403 (“Viane”). CYV17 has not explained why, even if the contended finding was made regarding the country situation in Iran, the Court would not follow Viane in finding that in relation to this kind of information “it can be assumed that the findings proceeded from the [decision maker’s] personal or specialised knowledge or were matters commonly known”: Viane at [18], [21] and [26]-[28] per Keane, Gordon, Edelman, Steward and Gleeson JJ.
Consideration – Ground 6
Jurisdictional error can be established if a decision is “irrational, illogical and not based on findings or inferences of fact supported by logical grounds”: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248 (“SZMDS”), CLR at [40] per Gummow A‑CJ and Kiefel J, and at [132] per Crennan and Bell JJ. Such an error can be established by “[f]indings or reasoning along the way to reaching a conclusion by the decision-maker that are illogical or irrational”: BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94; (2018) 263 FCR 292; (2018) 161 ALD 441 at [34] per Perram, Perry and O’Callaghan JJ citing SZMDS, CLR at [132] per Crennan and Bell JJ. Relevant error will be established if the finding of fact “was simply not open on the evidence or … there is no logical connection between the evidence and the inferences or conclusions drawn”: SZMDS CLR at [135] per Crennan and Bell JJ.
It is necessary to be careful in characterising or setting out what the Authority actually found in relation to the subject matter of ground 6. The finding that the Authority made was that there was “no credible information … to suggest that the father or the head of the family was the only person eligible to change green cards into white cards”: CB 391 at [31]. The Authority made that finding in circumstances where:
(a)it was not satisfied that CVY17’s wife’s evidence on the issue was truthful: CB 391 [32];
(b)it was not required to have rebutting evidence before rejecting factual assertions made by CYV17 or CYV17’s wife: Selvadurai, ALD at 348 per Heerey J; Mukto v Minister for Immigration and Multicultural Affairs [1999] FCA 1801 at [13] per French J, and the Authority was not required to make any particular factual findings where it was simply not persuaded by the evidence on behalf of CYV17: Viane at [28] per Keane, Gordon, Edelman, Steward and Gleeson JJ;
(c)findings of fact, including the making of credibility findings are, generally, matters for the Tribunal: NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 167 at [9] per Heerey J, and the Tribunal was under no obligation to uncritically accept all or any allegations made on behalf of CYV17: Minister for Immigration and Multicultural Affairs v Shatku [2001] FCA 1857 at [19] per Gray, Dowsett and Stone JJ; SZQWV v Minister for Immigration and Citizenship [2012] FCA 817 at [23] per Gilmour J; and
(d)the country information referred to by CYV17, being the Danish Refugee Council information, does not purport to conclusive, and in its terms is actually equivocal, admitting of the fact that there were alternative means of proving nationality, including DNA evidence, and the somewhat opaque provision of evidence by persons “if they are eager to do so”: see the extract quoted at [52(c)] above.
CYV17 referred to SZHYH (No 3) to support an argument that what the Authority did was to make a finding on the basis of personal assumption unconnected to country information, material or common experience of the relevant national authorities. In light of Viane, SZHYH (No 3) must now, with respect, be treated very cautiously. Indeed, the passages relied upon by CYV17 are directly contrary to what the High Court said in Viane at [18] and [28] per Keane, Gordon, Edelman, Steward and Gleeson JJ. Assuming that the Authority used some form of personal or specialised knowledge - an assumption contrary to what it found, which was an absence of credible information, which otherwise negates the submission that the Authority engaged in personal assumption - it was entitled to do so: Viane at [18], [21] and [26]-[28] per Keane, Gordon, Edelman, Steward and Gleeson JJ.
It follows from the foregoing that there was nothing illogical or irrational in the finding by the Authority challenged by ground 6, and no jurisdictional error as alleged by ground 6 has been established.
Conclusion and Orders
The Court has concluded that:
(a)grounds 2, 4 and 5 have been made out and establish material jurisdictional error in the Authority Decision;
(b)grounds 3 and 6 have not been made out.
Prerogative relief will follow from the conclusion that there is material jurisdictional error in the Authority Decision, and appropriate orders will be made. There will also be an order that the name of the Minister be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
The Court will hear the parties as to costs.

I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev.
Associate:
Dated: 10 March 2023
SCHEDULE OF PARTIES

MLG 1425 of 2017

Applicants

Fourth Applicant:

CYY17 (by their litigation guardian, CYV17)

File number(s):	MLG 1425 of 2017
Judgment of:	JUDGE LUCEV
Date of judgment:	10 March 2023
Catchwords:	MIGRATION – Judicial review – decision of the Immigration Assessment Authority – Protection (Class XA) (Subclass 866) visa – citizens of Iran – whether failure to invite to an interview or to otherwise provide new information – whether review beyond jurisdiction by reason of invalid certificate – whether failure to consider whether to exercise power – whether unreasonable failure to exercise power – whether unreasonable failure to disclose issuance of certificates – whether apprehension of bias – whether illogical or irrational finding on critical question – whether jurisdictional error – writs issued
Legislation:	Evidence Act 1995 (Cth) s 130 Migration Act 1958 (Cth) Pt 7AA, ss 5, 57, 438, 473CB, 473DA, 473DC, 473DD, 473GB, 473GD, 476, 477, 487 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 3.05
Cases cited:	ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; (2020) 269 CLR 439; (2020) 94 ALJR 928; (2020) 383 ALR 407 AGG17 v Commonwealth of Australia [2018] FCA 242 AIB16 v Minister for Immigration and Border Protection [2017] FCAFC 163; (2017) 254 FCR 457 AXE17 v Minister for Immigration and Border Protection [2019] FCA 695 AYF16 v Minister for Immigration and Border Protection [2018] FCAFC 129; (2018) 264 FCR 654 BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 268 CLR 29; (2019) 93 ALJR 109; (2019) 373 ALR 196 BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94; (2018) 263 FCR 292; (2018) 161 ALD 441 Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 1047; (2017) 252 FCR 352; (2017) 347 FLR 173 Charisteas v Charisteas [2021] HCA 29 CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 268 CLR 76; (2019) 94 ALJR 140; (2019) 375 ALR 47 CNY17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1568 CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496; (2016) 70 AAR 413 CRT16 v Minister for Immigration & Anor [2020] FCCA 2132 CRT16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 651 DVO16 v Minister for Immigration and Border Protection [2021] HCA 12; (2021) 95 ALJR 375 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 (2000) 75 ALJR 277; (2000) 176 ALR 644 Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344; (1984) 58 ALR 305 Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135 Maroun v Minister for Immigration & Citizenship [2009] FCA 1284; (2009) 112 ALD 424 Minister for Home Affairs v DUA16; Minister for Home Affairs v CHK16 [2020] HCA 46; (2020) 271 CLR 550; (2020) 385 ALR 212; (2020) 95 ALJR 54 Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; (2017) 257 FCR 111 Minister for Immigration and Border Protection v CED16 [2020] HCA 24; (2020) 94 ALJR 706; (2020) 380 ALR 216 Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181 Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594; (2011) 273 ALR 223; (2011) 85 ALJR 327; (2011) 119 ALD 1 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248 Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99; (2013) 302 ALR 672; (2013) 136 ALD 41 Minister for Immigration and Multicultural Affairs v Shatku [2001] FCA 1857 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 Minister for Immigration and Multicultural and Indigenous Affairs v SZANS [2005] FCAFC 41; (2005) 141 FCR 586; (2005) 215 ALR 733; (2005) 86 ALD 583 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CQZ15 [2021] FCAFC 24 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; [2021] 96 ALJR 13; (2021) 395 ALR 403 Mukto v Minister for Immigration and Multicultural Affairs [1999] FCA 1801 MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081; (2016) 243 FCR 1 MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441 NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 167 NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241 NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 160; (2004) 135 FCR 567 Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217 (2018); 92 ALJR 481; (2018) 353 ALR 600 Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173; (2015) 90 ALJR 197; (2015) 327 ALR 8; (2015) 148 ALD 206 Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 Ryan v State of Victoria [2015] VSCA 353 Selvadurai v Minister for Immigration and Multicultural Affairs [1994] FCA 1105; [1994] 34 ALD 347 Suh and Ors v Minister for Immigration and Citizenship and Ors [2009] FCAFC 42; (2009) 175 FCR 515; (2009) 108 ALD 470 Sunchen Pty Ltd v Commissioner of Taxation [2010] FCA 21; [2010] 114 ALD 49 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190; (2007) 235 ALR 609; (2007) 96 ALD 1 SZHYH v Minister for Immigration and Border Protection (No 3) [2019] FCA 589; (2019) 78 AAR 464 SZQWV v Minister for Immigration and Citizenship [2012] FCA 817 SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 Walker v New South Wales [1994] HCA 64; (1994) 182 CLR 45; (1994) 69 ALJR 111; (1994) 76 ACrimR 173
Division:	Division 2 General Federal Law
Number of paragraphs:	60
Date of last submission/s:	23 February 2022
Date of hearing:	23 February 2022
Place:	Perth (via videolink to Melbourne and Sydney)
Counsel for the Applicants:	Mr Murphy via CISCO Webex
Solicitor for the Applicants:	Victoria Legal Aid
Counsel for the First Respondent:	Ms Laing via CISCO Webex
Solicitor for the First Respondent:	Sparke Helmore
Second Respondent:	Submitting appearance, save as to costs

MLG 1425 of 2017
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	CYV17 First Applicant CYW17 (by their litigation guardian, CYV17) Second Applicant CYX17 (by their litigation guardian, CYV17) (and another named in the Schedule) Third Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent IMMIGRATION ASSESSMENT AUTHORITY Second Respondent

order made by:	JUDGE LUCEV
DATE OF ORDER:	10 MArch 2023

MLG 1425 of 2017
Applicants
Fourth Applicant:	CYY17 (by their litigation guardian, CYV17)