DBO19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor

[2023] HCATrans 18

[2023] HCATrans 018

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M72 of 2021

B e t w e e n -

DBO19

Applicant

and

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

Application for special leave to appeal

GAGELER J
STEWARD J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON FRIDAY, 17 FEBRUARY 2023, AT 3.30 PM

Copyright in the High Court of Australia

GAGELER J:   In accordance with the protocol for remote hearings, I will announce the appearances of the parties.

MR M.N.C. HARVEY, KC appears with MR J.A.G. McCOMISH and MS Y.K. CHAN for the applicant.  (instructed by Maddocks)

MR N.M WOOD, SC appears with MR J.A. BARRINGTON for the first respondent.  (instructed by Clayton Utz)

GAGELER J:   There is no appearance for the second respondent.  Mr Harvey.

MR HARVEY:   If the Court pleases.  At the heart of the proposed grounds 1 and 2 sits acknowledged errors of law.  First is an error of the Immigration Assessment Authority and it is misapplication of section 473DD and this Court’s ratio in AUS17, which the respondents conceded before the courts below.

The second is the repeated error of the Federal Court in considering materiality of error by asking whether the error would have made a difference rather than could have made a difference.  The Minister deals with this error by saying that it is only a typographical error, but an error nonetheless.  Grounds 3 and 4 can be described as failures to address claims, where the Federal Court accepted conclusions of the Authority which fly in the face of the facts before it or the findings which it made.

I now address the Court on each of the four grounds that we have before it.  First is that the Federal Court erred in failing to find jurisdictional error by the Authority due to misapplication of section 473DD of the Migration Act.  We submit that new information was disregarded as to our client’s Turkish ethnicity, the fake military exemption, his wife’s mental ill health, and threats made by the revolutionary guard after his detention in 2007.

The Authority did not apply section 473DD in accordance with AUS17.  It did not consider the requirement or the criterion in subsection (b); instead went straight to (a) and never went to (b) at all.  We submit that that constitutes a failure to take into account a mandatory relevant consideration.  The consequence is that our client was deprived of an opportunity to put relevant material and deprived of an opportunity to put further material, whether it be written or a further interview, as afforded by sections 473DC or DF.

We say that that simply constitutes jurisdictional error as enunciated by this Court in Nathanson.

GAGELER J:   Are you saying that materiality has no function in this context, or are you saying that the errors were material?

MR HARVEY:   We say that the errors were material but, as far as materiality is concerned, your Honour, that is something we tackle far more head on in the second ground.  But we say that this was a material error, in any event.

As far as the second ground is concerned, your Honours, we say here that the Federal Court erred in finding that the Authority’s misapplication of the section was not material.  In this sense we again refer to that the error of the Federal Court “would not have made a difference to the outcome” and it should have said “could not”.  Then, on top of that, we have the additional aspect of this ground which is that the Authority considered the new information not to be material and instead used the expression “brief and unsupported”.

STEWARD J:   Mr Harvey, what do you say to Mr Wood’s submission that Justice Anderson did use the word “could” twice at paragraphs 85 and 99, and did so in reasoning that upheld the reasons of the Circuit Court judge who used “could” consistently throughout his Honour’s reasons?

MR HARVEY:   Your Honour, what I would simply point to is the fact that his Honour used the expression “would not” – I will just rattle off the paragraphs – 80, 87, 91, 93 and 101 – in circumstances where he was finally determining that there would not have been materiality of error.  They were the critical paragraphs.  So, while it is the case that he does use “could” on occasion, those critical paragraphs that I have just referred you to are the very paragraphs upon which, we say, the Court has committed a jurisdictional error.

It is interesting – this conjecture – if I can put it like that, that this is merely a typographical error.  Clearly, there is a difference between “would” and “could”.  Furthermore, as far as the analysis is concerned, we have the conclusion that it “would” not have made a difference but there is no analysis of that.  But, more importantly, there should have been some analysis that it “could” not have made a difference.

GAGELER J:   Mr Harvey, I have read the IAA’s decision and it is very hard to see how this information could have changed the process of reasoning or the outcome.  Are you going to try to persuade us that it could have changed?

MR HARVEY:   I will do my utmost, your Honour.   As far as the actual task itself of whether it could have had that effect, we must be very careful that we do not stray into the assessment of the merits of that evidence.  We have got to ensure that, in these particular circumstances that we only engage, obviously, in judicial review.

GAGELER J:   I will grant you all of that. 

MR HARVEY:   I am glad I am pushing against an open door in that regard, your Honour.  But what I wanted to submit to you was that in these particular circumstances there is a failure obviously, to comply with 473DD and that is manifest, not only in its words but in the way it has been interpreted by this Court in AUS17.  But when one looks at the evidence itself, all we have there is these extraordinary words “brief and unsupported”.

STEWARD J:   Mr Harvey, as you know, this Court had looked at issues of materiality on two occasions in the last two years.  You do not put your case on the basis that you are propounding some new legal principle, yours is a visitation case, I take it.

MR HARVEY:   That is so, your Honour, yes.  But can I say, though, we do have a situation where the Minister is contending that we are seeking to reopen SZMTA and MZAPC.   Now, we do not think that we are doing that, frankly.  We think that we are asking this Court to apply the doctrines that it has always applied, at least in recent times.

STEWARD J:   Then the real question for you is why should you be a visitation case in circumstances where we are stuck, as a Court, with the findings of the Authority that the material was either “brief and unsupported” or a minor additional detail?

MR HARVEY:   Because, your Honour, that finding of the materiality of the evidence has no bearing upon the question of judicial review.  What is that decision – that it is brief and unsupported – it is no more than a comment upon the material.  Keeping in mind that in those particular paragraphs of the Authority’s decision, it was doing no more than deciding whether it would admit that evidence or not; that is all it was doing.  A conclusion or a comment that it was “brief and unsupported” is completely irrelevant.

Going back to, if I may, just to take your Honours back to SZMTA and MZAPC, as I said, the Minister contends that we are seeking to reopen.  We do not think that we are doing that but, needless to say, if it is the case that those two cases do need to be reopened, then so be it, and we are happy to argue it.  But in our submission, our primary position ‑ ‑ ‑ 

STEWARD J:   Does that include Nathanson?

MR HARVEY:   It is not said that we are seeking to reopen Nathanson, so I assume that we are not.

STEWARD J:   All right.

MR HARVEY:   So, then, as far as this second error is concerned –
“brief and unsupported” – what, effectively, the Federal Circuit Court and the Federal Court do is they engage in this elision of eliding merits review with judicial review to determine the materiality of the error.  That is not what this Court has said.  One asks, could the Authority’s correct application of 473DD and consideration of the new information, have given rise to a realistic possibility that a different decision could – not would – have been made?  And we rely, obviously, on Nathanson and also on MZAPC.

As far as the third ground is concerned, here the point to be made is that we say the Federal Court erred in failing to find jurisdictional error by the Authority in reaching or making improper assumption or unreasonable finding that the applicant would voluntarily return to Iran.  This is quite an interesting aspect of the case, and quite a straightforward one, where you have evidence before the Tribunal, or before, I should say, the Authority, if I just quote:

I cannot return to Iran.  If I am forced to return, I will be jailed again for not following Islam.

And the similar statement to that effect I will not read out.  Notwithstanding that evidence before it, the Authority decides that the applicant had:

not said that he would not return to Iran voluntarily –

There is, with respect, a disconnect between that conclusion and the evidence before it, and that was picked up – and that disconnect was similarly picked up by the Federal Circuit Court and by the Federal Court of Australia.

We submit that that failure to respond to a substantial, clearly‑articulated argument relying upon established facts not only amounts to a failure to give natural justice but constitutes a constructive failure to exercise the Authority’s jurisdiction.  In that sense, we rely upon Dranichnikov, a decision of this Court 20 years ago now.  It is a case different to our own case but it, nevertheless, is an interesting ground that we submit the Court should have regard to because the case is getting on a little, and that hurts to say as a person who was practising in 2003, but at the same time, though, it is useful to have it restated but particularly in the facts of this case.

STEWARD J:   Mr Harvey, do we not need to also take account of the other findings the Authority made, in particular I am thinking of paragraph 20 of the reasons where they say they that they:

do not accept he has a genuine and on‑going commitment to the Christian faith –

and they did not find his evidence convincing.  So, when they are assessing the risk of harm in a voluntary return to Iran and the prospect of persecution because of his faith, do we not need to look at your client’s statements as well as the findings to the Authority?

MR HARVEY:   Yes, most certainly, you cannot only look at some of it.  But my submission here is that in the face of his own statements of what he was willing to do – because, keep in mind, what is said here is he did not say that he would not return to Iran voluntarily, it is what he says that is critical to that finding, and I will not read out – I will not sort of play a game of tit for tat from findings in the Authority’s decision, but there are these statements that he makes about his fearfulness about returning to Iran that clearly indicate that, in our submission, he did not want to return there and it was not a voluntarily decision, despite the finding.

One has got to couple with that the fact that there are acceptances in these decisions of the terrible harm that he suffered in Iran for many years before he came to Australia.

Finally, ground 4 deals with the fact that we have a finding here that he would not suffer harm as a result of his beliefs as a non-practicing Muslim, this might tie in more closely with what Justice Steward as just put to me.  But we say here that Federal Court erred in failing to find jurisdictional error with respect to that conclusion when there was ample evidence before the Authority that he had been a victim of multiple instances of violence and detention and injury all at the hands of the authorities in Iran.

STEWARD J:   Mr Harvey, is that put as a legal unreasonableness ground of fact-finding?

MR HARVEY:   Yes, it is, your Honour.

STEWARD J:   All right, thank you.

MR HARVEY:   So, as far as the grounds are concerned, we have got grounds 3 and 4, which are instances of the Authority having material before it which it has not properly assessed, and which has led to error.  We

have got grounds 1 and 2, which are instances where new information between the Authority was not properly assessed in excluding it.  In all instances, we submit that if the error of law had not been made the outcome would have been different.  And furthermore, we say that if the new information had been accepted it could have addressed – that new information could have addressed the conclusions referred to in grounds 3 and 4, thus leading to a real possibility of a different outcome.

Finally, I will simply submit this:  as to these four proposed grounds of appeal are concerned, each involves a question of law, each is of public importance because of their general application to federal administrative law, and not just in the migration context, although that is important itself.  Grounds 1 and 2 focus on materiality and the proper test and its application, and it does not take much to know that that has been a matter of some considerable debate amongst practitioners, academics, and, indeed, the Justices of this Court.  Ground 3 is an opportunity to restate and reapply Dranichnikov.

And then finally, it is in the interest of the administration of justice that the Court’s consideration of the judgment in question in this instance, particularly where the error at the heart of grounds 1 and 2 are conceded, and the errors in relation to grounds 3 and 4 can, at the very least, be easily resolved in the course of appeal if that leave is granted.

Unless your Honours have some questions for me, they are the submissions for the applicant.

GAGELER J:   Thank you, Mr Harvey.  We will adjourn momentarily to consider the course we will take.

AT 3.46 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.49 PM:

GAGELER J:   We do not need to call on you, Mr Wood.

In our opinion – despite the arguments of Mr Harvey – the proposed appeal would lack reasonable prospects of success.  The application is refused with costs.

The Court will now adjourn to 10.00 am on Tuesday, 7 March 2023.

AT 3.49 PM THE MATTER WAS CONCLUDED