CZL22 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 967
Federal Circuit and Family Court of Australia
(DIVISION 2)
CZL22 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 967
File number: MLG 1991 of 2022 Judgment of: JUDGE LADHAMS Date of judgment: 21 November 2022 Catchwords: MIGRATION – application for judicial review of decision of Immigration Assessment Authority – where Secretary failed to provide all relevant documents pursuant to s 473CB of the Migration Act 1958 (Cth) – whether breach was material – jurisdictional error established – writs issued Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), r 2.05
Migration Act 1958 (Cth), ss 36, 473BB, 473CA, 473CB, 473DC, 473GB, 476, 477
Cases cited: ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34
EVS17 v Minister for Immigration and Border Protection (2019) 268 FCR 299; [2019] FCAFC 20
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3
MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590; [2021] HCA 17
Nathanson v Minister for Home Affairs (2022) 403 ALR 398; [2022] HCA 26
Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16
Division: Division 2 General Federal Law Number of paragraphs: 49 Date of hearing: 29 August 2022 Place: Perth Counsel for the Applicant: Dr A McBeth Solicitor for the Applicant: Clothier Anderson Immigration Lawyers Counsel for the First Respondent: Mr J Barrington Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
MLG 1991 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CZL22
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
JUDGE LADHAMS
DATE OF ORDER:
21 November 2022
THE COURT ORDERS THAT:
1.A writ of certiorari issue to quash the decision of the second respondent made on 7 June 2017.
2.A writ of mandamus issue directed to the second respondent requiring it to reconsider according to law the review referred to it pursuant to s 473CA of the Migration Act 1958 (Cth).
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 LADHAMS:
Introduction
The applicant to this proceeding filed an application under s 476 of the Migration Act 1958 (Cth) (Migration Act) seeking judicial review of a decision made by the Immigration Assessment Authority (Authority) on 7 June 2017 to affirm an earlier decision made by a delegate of the Minister not to grant the applicant a protection visa.
The applicant relies on a single ground of application which alleges that the Authority decision is affected by jurisdictional error because the Secretary failed to provide to the Authority all of the documents that ought to have been provided pursuant to s 473CB of the Migration Act. The Minister accepts that the Secretary failed to provide all relevant documents under s 473CB. The sole issue for the Court’s determination is whether that breach was material and led to jurisdictional error in the Authority decision.
For the reasons explained below, I have found that the applicant has established jurisdictional error and I issue a writ of certiorari to quash the Authority decision and a writ of mandamus to require the Authority to reconsider according to law the matter referred to it.
Background
The applicant is a citizen of Iran who arrived in Australia in August 2012 and made a valid application for a Safe Haven Enterprise visa, which is a type of protection visa, in 2016. The applicant’s claims for protection were set out in a statement that accompanied his protection visa application. The applicant claimed to fear harm from Iranian authorities, including the Sepah and Etelaat, on the basis of his Arab ethnicity and imputed political opinion. Relevantly to the application before the Court, the applicant claimed that he was detained and tortured for four days by the Etelaat, the intelligence section of the Sepah, in mid-2012 and released after he signed a forced confession against his brother.
The applicant’s brother also lodged an application for a protection visa and included his wife and child in that application. The same delegate of the Minister separately interviewed the applicant, the applicant’s brother and the applicant’s brother’s wife about their claims for protection on 28 July 2016.
On 7 November 2016 a delegate of the Minister made a decision not to grant the applicant a protection visa. On the same day, the same delegate also made a separate decision to refuse to grant protection visas to the applicant’s brother and his family.
The decision in relation to the applicant was a ‘fast track reviewable decision’ within the meaning of s 473BB of the Migration Act and was referred to the Authority pursuant to s 473CA of the Migration Act.
On 10 November 2016 an officer of the Minister’s Department sent to the Authority a notification regarding the disclosure of certain information covered by s 473GB of the Migration Act (s 473GB certificate). The s 473GB certificate identified seven documents which were said to be covered by the certificate because the disclosure of the information would be contrary to the public interest and because the documents contained information which had been provided to the Minister or the Department in confidence. As discussed in greater detail below some, but not all, of the documents identified in the s 473GB certificate were provided to the Authority.
On 7 June 2017 the Authority affirmed the delegate’s decision not to grant the applicant a protection visa, finding that the applicant did not meet the requirements of s 36(2)(a) or s 36(2)(aa) of the Migration Act.
Authority Decision
For the purposes of addressing the applicant’s ground of application, it is not necessary to refer to all of the findings made by the Authority. Only those findings relevant to the applicant’s claim to have been detained and tortured, and forced to sign a confession against his brother, are relevant to this application.
The Authority considered that the applicant’s account at his arrival interview of the claimed incident with the Sepah and the subsequent events was broadly consistent with his written statement. However, the Authority had significant concerns about the applicant’s evidence and his claims when considered as a whole. The Authority also had concerns about the genuineness of documents provided by the applicant in support of his claims, and considered that the documents further undermined the credibility of the applicant’s evidence.
The concerns that the Authority had about the applicant’s evidence included the following:
(a)The applicant gave evidence that he had been traumatised and continually tortured during the four days he had been detained. He also gave evidence that he did not seek medical treatment for physical injuries. Given the nature and severity of the torture that the applicant claimed to have sustained over the four day period, the Authority considered it highly implausible that the applicant would not need any medical help for physical injuries.
(b)The Authority considered that it was not credible that the applicant would have returned to work the day after he was released if he had been tortured and traumatised in the way that he claimed.
(c)The applicant gave written evidence that at one point when he was detained, he was taken to another room where he saw his brother, who was naked, unconscious and his legs and hands were tied. He claimed that this was his breaking point. When asked at the protection visa interview whether he was held at a different place to his brother, he responded that he did not know. The Authority considered that if the applicant had seen his brother in the manner described, it would have been significant and memorable for him, and he would have been able to provide more detail.
(d)The applicant claimed that he was released 12 to 13 days before his brother, and departed Iran about two weeks after his brother’s departure. The Authority considered the circumstances of the applicant’s departure from Iran and was not satisfied of the applicant’s explanation as to why he waited some 13 days for his brother’s release and another two weeks for his brother’s departure before leaving Iran. The Authority did not consider that the applicant would not at least have attempted to leave Iran at an earlier stage if he was tortured as claimed.
(e)The Authority found it difficult to accept that the applicant would have returned to his place of work after his release, begged his employer to let him finish some important work and attended the Herosat of the Minister for Education, as these actions were not consistent with the applicant’s claim that he was tortured and detained for four days by the Sepah.
The Authority was not satisfied that the problems with the applicant’s evidence could be satisfactorily explained by factors such as stress, anxiety, trauma, misunderstanding, interpreting errors, medical conditions or any other external factors.
The Authority found that when questioned about the summons that the applicant claimed to have received, the applicant’s answers were vague and evasive. The Authority considered that if a summons was issued against the applicant and he received a copy of it, he would have been able to give consistent evidence about whether he was required to attend court or a police station.
The Authority found that a document with a subject matter of ‘subpoena’ dated 2014 and directed to the applicant’s older brother was not a genuine document as it was not stamped. The Authority considered that the document did not support the applicant’s claims that he was required to attend court because of the 2012 incidents with the Etelaat, and it raised further questions as to the credibility of the applicant’s evidence.
The Authority considered the documentary evidence that the applicant provided to support his claim that his older brother provided the deed of their father’s house as surety to secure his other brother’s release on bail. The Authority was not satisfied that the document supported the applicant’s claims as it did not clearly indicate that it was an advertisement for the sale of property and did not show the circumstances in which the property came into the government’s hands.
The Authority considered country information that indicated that the Iranian authorities have had a heavy-handed approach towards Ahwazi Arabs for their perceived political opinions, and found it implausible that the Etelaat or the authorities would require the applicant as a tool or to force him to confess that his brother was active in Wahabi religion or against the government, especially if the brother was detained and confirmed by the authorities to be an Arab activist as claimed.
The Authority also found that there was no credible evidence indicating that the applicant was politically active or imputed with such a profile, or that he was or was perceived as exhibiting his Arab identity, culture or political or religious opinions. The Authority found that in circumstances where the applicant already complied with the forced confessions, it was implausible that upon his release, he would still be targeted, issued with summons, subpoenas or other official documents, or required to attend the police station, the Sepah’s office or the court.
Taking into account all of its concerns with the applicant’s evidence, the Authority was not satisfied that the applicant’s claimed detention and torture in 2012 occurred. The Authority found at [52]:
For the reasons given above, and given the applicant’s problematic evidence, I reject the 2012 incident with the authorities in its entirety. I do not accept that the applicant was arrested, detained, mistreated, harmed, threatened, forced to sign or signed any confessions against his brother. … I also do not accept that the applicant was not allowed to return to his work place, fired or suspended from work for the reasons claimed, or that there was an order from Herosat against him. I am not satisfied on the evidence that the applicant’s brother was arrested, detained, threatened or harmed, or that he was or was perceived as a Sunni Muslim, supports anti-government groups or anti-government, or that his brother was targeted for any reasons. … I do not accept that the authorities had any photos or videos against him or his brother, or that any summons, subpoena, court document or official document was issued against them. … I do not accept that there were any charges or sentences against the applicant or his brother or that their names or records were marked in the intelligence services system. I do not accept that the applicant left Iran for the reasons claimed. I do not accept that the applicant is or was required to attend court, police station or appear before any authorities, or that he missed any such appearances. I find that the applicant and his brother were not of interest to the Iranian authorities, including the Sepah, the Etelaat, the police, the Herosat, the Basij and the judiciary. I find that the applicant manufactured these claims in order to create a profile for his protection application. …I find that the applicant will not face a real chance of arrest, torture, imprisonment or otherwise harmed on these bases now or in the reasonably foreseeable future.
Proceedings before thE Court
The application for judicial review was filed within 35 days of the date of the Authority decision in accordance with s 477(1) of the Migration Act. The applicant filed an amended application on 2 August 2022.[1]
[1] The amended application was electronically lodged after 4:30pm on 1 August 2022 and is therefore deemed to have been filed on 2 August 2022, pursuant to r 2.05(4) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
The amended application contains the following sole ground:
The Secretary of the Minister’s Department breached s 473CB of the Act by failing to provide relevant documents and audio recordings within the Department’s possession, on which the Minister’s delegate had relied, to the IAA as part of the review material, which failure materially affected the IAA review.
Particulars
(a)The Minister’s delegate had considered the applicant’s visa application at the same time as the application of his brother and had considered and relied on documents and interviews relating to both the applicant and his brother in making her decision.
(b)The Secretary had in his or her possession the audio recording of the arrival interviews of the applicant’s brother and sister-in-law, which were plainly relevant to the review.
(c)The Minister, through a delegate, determined that certain audio recordings and documents on the Department’s file were relevant to the applicant’s review and certified (invalidly) that s 473GB applied to that information.
(d)The Minister now accepts that one document (being the delegate’s decision record relating to the applicant’s brother) and two audio recordings (of the delegate’s interviews with the applicant’s brother and the brother’s wife), which had been considered by the delegate and listed in the (invalid) s 473GB certificate, were not provided to the IAA at any time for the purpose of the review.
(e)The Secretary’s failure to include those documents and recordings in the review material constituted a breach of s 473CB(1)(c) of the Act.
(f)The breach of s 473CB by the Secretary deprived the IAA of relevant information on its review and thereby prevented the IAA from conducting the review required by part 7AA of the Act.
The evidence before the Court comprises the court book, an affidavit of Ms Sophie Roberts, filed on behalf of the Minister on 13 May 2022 which identifies those documents referred in the s 473GB certificate which were and were not provided to the Authority, and an affidavit of Ms Sanmati Verma filed on behalf of the applicant on 2 August 2022[2] which annexes a copy of a transcript of the applicant’s brother’s protection visa interview.
[2] This affidavit was filed at the same date and time as the applicant’s amended application. See footnote 1 above.
While the applicant’s ground refers to the s 473GB certificate being invalid, both parties agreed that it was not necessary for the Court to determine the validity of the s 473GB certificate to address the applicant’s ground. I therefore do not address the validity of the s 473GB certificate.
Breach of s 473CB of the Migration Act
The affidavit of Ms Roberts shows that the Secretary did not provide to the Authority the following documents that were referred to in the s 473GB certificate (collectively, the missing documents):
(a)the protection visa decision record (that is, the delegate’s decision) in relation to the applicant’s brother and his family, along with the covering letter notifying them of the refusal to grant them a visa;
(b)an audio recording of the applicant’s brother’s protection visa interview; and
(c)an audio recording of the applicant’s brother’s wife’s protection visa interview.
Each of the three missing documents had been considered by the delegate in the course of making the decision not to grant the applicant a protection visa, and both parties accept that they were relevant to the review.
There is no dispute that the Secretary was required to provide these documents to the Authority in accordance with s 473CB(1)(c) of the Migration Act. This subsection requires that the Secretary provide to the Authority ‘any other material that is in the Secretary’s possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review’. I agree with both parties that the Secretary did not comply with s 473CB of the Migration Act.
Materiality
Relevant principles
A breach of s 473CB of the Migration Act by the Secretary can give rise to jurisdictional error in the Authority decision on the basis that the Authority was prevented from conducting the review contemplated by Part 7AA if the documents the subject of the breach could have affected the outcome of the review: EVS17v Minister for Immigration and Border Protection (2019) 268 FCR 299; [2019] FCAFC 20 at [42].
The High Court confirmed in Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 (SZMTA) that a breach of a provision will be material to a decision ‘only if compliance could realistically have resulted in a different decision’: SZMTA at [45] (per Bell, Gageler and Keane JJ). While the Court must be careful not to intrude into the fact-finding function of the decision-maker, ‘the court must be alive to the potential for a document or information, objectively evaluated, to have been of such marginal significance to the issues which arose in the review that the [decision-maker’s] failure to take it into account could not realistically have affected the result’: SZMTA at [48] (per Bell, Gageler and Keane JJ).
In MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590; [2021] HCA 17, the High Court addressed questions relating the proof of materiality and the onus of establishing materiality. Chief Justice Kiefel, Gageler, Keane and Gleeson JJ said at [38]-[39] (footnotes omitted):
38.The counterfactual question of whether the decision that was in fact made could have been different had there been compliance with the condition that was in fact breached cannot be answered without determining the basal factual question of how the decision that was in fact made was in fact made. Like other historical facts to be determined in other civil proceedings, the facts as to what occurred in the making of the decision must be determined in an application for judicial review on the balance of probabilities by inferences drawn from the totality of the evidence. And like other counterfactual questions in civil proceedings as to what could have occurred — as distinct from what would have occurred — had there been compliance with a legal obligation that was in fact breached, whether the decision that was in fact made could have been different had the condition been complied with falls to be determined as a matter of reasonable conjecture within the parameters set by the historical facts that have been determined on the balance of probabilities.
39.Bearing the overall onus of proving jurisdictional error, the plaintiff in an application for judicial review must bear the onus of proving on the balance of probabilities all the historical facts necessary to sustain the requisite reasonable conjecture. The burden of the plaintiff is not to prove on the balance of probabilities that a different decision would have been made had there been compliance with the condition that was breached. But the burden of the plaintiff is to prove on the balance of probabilities the historical facts necessary to enable the court to be satisfied of the realistic possibility that a different decision could have been made had there been compliance with that condition.
The High Court has most recently considered materiality in Nathanson v Minister for Home Affairs (2022) 403 ALR 398; [2022] HCA 26 (Nathanson). In that case, Kiefel CJ, Keane and Gleeson JJ said that there ‘will generally be a realistic possibility that a decision-making process could have resulted in a different outcome if a party was denied an opportunity to present evidence or make submissions on an issue that required consideration’: Nathanson at [33]. Justice Gageler said in a separate judgment that establishing the threshold of materiality is not onerous: Nathanson at [47]. His Honour explained at [46]:
SZMTA and MZAPC do not hold that, in order to meet the threshold of materiality, an applicant for relief must establish any part of what would have occurred on the balance of probabilities had a fair opportunity to be heard been afforded. The onus which the applicant bears to establish materiality is no greater than to show that, as a matter of reasonable conjecture within the parameters set by the historical facts established on the balance of probabilities, the decision could have been different had a fair opportunity to be heard been afforded.
Counsel for both parties made submissions at the hearing as to the impact of Nathanson on earlier High Court authorities. Ultimately, it is unnecessary to resolve those issues in this matter because, whether I apply Nathanson or the earlier authorities or both, I find that the Secretary’s breach of s 473CB of the Migration Act was material and led to jurisdictional error in the Authority decision. This conclusion is explained below.
The breach of s 473CB in the present matter was material
The missing documents, at least to the extent that they have been provided to the Court, contain evidence and details relevant to the applicant’s brother’s claims which was additional to the evidence already before the Authority in the applicant’s case. The applicant’s claims were sufficiently linked with his brother’s claims that if the Authority had the opportunity to consider the additional detail in the evidence relevant to the brother’s claims, there is a realistic possibility that the Authority may have reached a different decision in relation to the applicant’s claims for protection.
The applicant’s claim to have been detained and tortured for four days, on his evidence, commenced with a phone call from his brother’s wife looking for the applicant’s brother because she was unable to contact him. The applicant claimed that when he was unable to find his brother, he went to his brother’s apartment, and three men were already at the brother’s apartment. These men attacked, threatened, detained and questioned the applicant. The applicant claimed that he was detained for four days, tortured and forced to sign a confession implicating his brother in the Wahabi. He claimed that, at one stage in the course of his detention, he saw his brother, who was also being detained.
The applicant’s brother was not a direct eye witness to the applicant’s claims and nothing in the applicant’s brother’s evidence directly corroborates the harm suffered by the applicant or what happened to the applicant while he was detained. However, the applicant’s brother’s evidence in the missing documents could indirectly corroborate the applicant’s claims. Put simply, if the Authority accepted the applicant’s brother’s claims, a significant part of the context in which the applicant’s claims arose would be established, and there is a realistic possibility that this could have led to the Authority accepting the applicant’s claims.
There is one part in the applicant’s brother’s protection visa interview when the applicant’s brother acknowledged that he has not talked with the applicant about what happened to the applicant. The brother gave evidence as to what their older brother told him about the applicant’s experiences. If the evidence was accepted, it might show that there is some consistency in what the applicant told his older brother and the evidence the applicant gave in support of his protection claims. While it would be for the Authority to determine whether it accepted the evidence and, if so, what weight it should be given in the context of the applicant’s overall claims, I cannot exclude the realistic possibility that the Authority might have considered that the applicant’s protection claims were consistent with what he told his older brother and this might have increased the likelihood of the Authority accepting the applicant’s claims.
At the hearing, I invited Counsel for the Minister to respond to the propositions that the applicant’s brother’s evidence could indirectly corroborate the applicant’s claims and that if the Authority accepted that the brother was detained and tortured, that may in turn affect its views of the applicant’s evidence. Counsel for the Minister responded that it could not have made a difference in the present case having regard to the way in which the Authority approached the review. Counsel for the Minister submitted that the High Court requires a backward looking analysis when assessing materiality, and it is clear that the basis of the Authority’s rejection of the applicant’s claims was the inconsistencies and difficulties in the applicant’s own evidence.
While I accept that the Authority rejected the applicant’s claims based on concerns relating to his own evidence, I do not consider that this affects the materiality of the failure to provide the missing documents. The missing documents relate directly to the brother’s claims. As discussed above, there is a realistic possibility that the additional information about the brother’s claims may have caused the Authority to accept that the applicant’s brother was detained. If the Authority had accepted that the applicant’s brother was detained, this may have influenced how it viewed the applicant’s evidence, including whether there was a plausible explanation for any inconsistencies.
There are some further submissions advanced on behalf of the Minister that should be addressed.
The Minister submitted that the delegate referred to the evidence given by the applicant’s brother at the protection visa interview, and therefore the Authority was not wholly deprived of information about the evidence of the applicant’s brother given at the interview.
I am unable to accept that the information in the delegate’s decision means that the breach of s 473CB was not material. The information about the applicant’s brother’s claims in the delegate’s decision record on the applicant’s protection claims is lacking in detail and represents the conclusions reached by the delegate rather than the evidence given by the brother or his wife. The information in the decision record includes the following relevant information:
(a)the delegate’s conclusion that the brother does not have a political profile and is not of interest to state authorities;
(b)the delegate’s acceptance that the applicant and his brother were both Arabs from a particular area;
(c)the delegate did not accept the brother had an adverse profile because it was satisfied that the brother lived a low profile and conforming lifestyle, was a business man who serviced a Persian client base, as not involved in political activities;
(d)in relation to the claim to have been detained, the applicant’s brother’s evidence was ‘vague and inconsistent’, for example, he was unable to name all of the charges that had been applied to his court case and he was inconsistent about the bail amount; and
(e)the reasons the applicant’s brother was unable to produce any of the summonses issued to him was illogical and inconsistent with country information.
The information that was before the Authority about the evidence given by the applicant’s brother at his protection visa interview was minimal and lacking in detail. I accept the submission advanced by Counsel for the applicant that the description of the evidence the applicant’s brother gave in his protection visa interview that is set out in the decision record about the applicant was not a complete substitute for the information in the audio file of the applicant’s brother’s protection visa interview. Had the audio file of the brother’s protection visa interview, or even the delegate’s protection visa decision record in relation to the brother, been provided to the Authority in compliance with s 473CB(1)(c) of the Migration Act, the Authority would have been better equipped to consider for itself whether the applicant’s brother had been detained as claimed. This is important given that the nature of the review to be conducted by the Authority is a review de novo: ABT17v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34 at [5], [59], [81]; Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16 at [17], [85], [92]. As discussed above, if the Authority had accepted that the applicant’s brother had been detained, this may have affected its consideration of the applicant’s claims, as the brother’s claimed detention was the context in which the applicant’s claimed detention was said to occur.
At the hearing, Counsel for the Minister compared the information in the delegate’s respective decision records for the applicant’s and the brother’s protection visa applications. I understand that this may have been for the purpose of specifically addressing the materiality of the failure to provide the decision record in relation to the brother’s claims. Even on this comparison, the decision record in relation to the brother contained more information and detail about the evidence of the brother at his protection visa interview than was contained in the decision record in relation to the applicant. The additional detail could realistically have affected the Authority’s consideration of whether the brother had been detained. The observations about the brother’s claims in the applicant’s decision record were largely expressed as conclusions, whereas in the brother’s decision record, there was more detail to explain why, for example, his evidence was considered to be vague and inconsistent. The additional information could have enabled the Authority to consider for itself whether it would attach the same significance to any vagueness or inconsistency. For reasons explained above, any realistic possibility of the brother’s claims to have been detained being considered more favourably by the Authority could in turn lead to a realistic possibility of a favourable assessment of the applicant’s claims.
The Minister submitted that while the applicant’s brother gave some evidence about the applicant receiving a summons, that summons was before the Authority and the Authority considered, with regard to country information, that the summons was not a genuine document. In those circumstances, the Minister submitted that it was difficult to see how the applicant’s brother’s evidence might realistically have affected the Authority’s finding in relation to the summons.
However, that submission was made in the context of the Minister’s submission that the applicant’s brother’s evidence was not corroborative of the applicant’s claims, and could not realistically have led to the possibility of a different outcome on the review. Even if I were to accept that there is no realistic possibility that the Authority could have reached a different finding in relation to the summons (which I do not need to decide), this would not lead to any different conclusion to that which I have expressed at [34], [35] and [37] above about the potential for the applicant’s brother’s evidence to affect the Authority’s consideration of the applicant’s claims, even though he was not able to directly corroborate the applicant’s evidence of his claimed detention.
The Minister submitted that the applicant has not discharged the onus of proving that the provision of his brother’s wife’s interview might have led to a different outcome on the review because no transcript has been provided to the Court and it is not clear what evidence, if any, she gave that might be relevant to the review.
In response to this submission, Counsel for the applicant submitted that:
(a)the Minister’s argument assumes that the Court needs to analyse the transcript to consider for itself whether it was likely to assist the applicant’s case, which is not consistent with what the High Court said in Nathanson;
(b)the content of the interview is not the end of the story, as the Authority might have taken steps to probe the evidence of the applicant’s brother or the brother’s wife in greater detail, and may have exercised its discretions in s 473DC to get new information from them; and
(c)the Minister’s argument says nothing about the other missing documents.
I accept the third of the arguments advanced by the applicant in response to the Minister’s submission. I have already found that the breach of s 473CB in relation to the audio recording of the applicant’s brother’s protection visa interview and decision record was material, and on the basis of the findings in relation to those documents, it is appropriate to quash the Authority decision and remit the matter for reconsideration according to law. It is therefore unnecessary to determine whether the applicant has discharged the onus of establishing materiality in relation to the applicant’s brother’s wife’s protection visa interview.
The High Court in Nathanson was dealing with a denial of procedural fairness where the applicant was denied a proper opportunity to adduce evidence or make submissions on a particular issue before the Tribunal. The High Court confirmed that the applicant did not need to establish the nature of the evidence he would have adduced or submissions he would have made at the Tribunal hearing to discharge the evidentiary onus: Nathanson at [39] (per Kiefel CJ, Keane and Gleeson JJ), [55]-[58] (per Gageler J), [83], [86] (per Gordon J), [126]-[127] (per Edelman J). The present case relates to the Secretary’s failure to provide to the Authority an existing document, the content of which was already fixed at the time of the Authority decision. The question of whether, following the decision in Nathanson, an applicant can discharge the onus of proving materiality without providing evidence of the content of an existing document the subject of a breach, is best left to be considered in a matter where the resolution of that question is determinative to the outcome.
Conclusion
I have found that the Secretary’s breach of s 473CB was material and gives rise to jurisdictional error in the Authority decision. It is appropriate to issue writs of certiorari and mandamus.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 21 November 2022
0
9
0