DEJ18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2025] FedCFamC2G 632
•2 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DEJ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 632
File number(s): ADG 238 of 2018 Judgment of: JUDGE LUCEV Date of judgment: 2 May 2025 Catchwords: MIGRATION – Judicial review application – decision of Immigration Assessment Authority – Shia Arab from Iraq – claims of fear of harm from ex-wife’s family in Iraq – whether failure to address a claim – whether error in relation to new information finding – whether failure to perform procedural duty in relation to consideration of new information – whether jurisdictional error Legislation: Migration Act 1958 (Cth), ss 473CB, 473DC, 473DD, 476 Cases cited: ADN18 v Minister for Home Affairs [2018] FCA 1677
AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; (2020) 269 CLR 494; (2020) 94 ALJR 1007; (2020) 384 ALR 196
BDR18 v Minister for Home Affairs [2020] FCA 212
CVK16 v Minister for Immigration and Border Protection [2017] FCA 1434; (2017) 257 FCR 297; (2018) 160 ALD 220
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321
EEP18 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FCA 682
EVA17v Minister for Immigration and Border Protection [2018] FCAFC 214; (2018) FCR 304
FBR18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1620
Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244
Minister for Home Affairs v DUA16 [2020] HCA 46; (2020) 271 CLR 550; (2020) 95 ALJR 54; (2020) 385 ALR 212
Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431; (2013) 136 ALD 547
Minister for Immigration and Multicultural Affairs v Al-Miahi [2001] FCA 744; (2001) 65 ALD 141
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CTB19 [2020] FCAFC 166; (2020) 280 FCR 178
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582; (2022) 96 ALJR 497; (2022) 400 ALR 417; (2022) 178 ALD 304
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
SGBB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 709; (2003) 199 ALR 364; (2003) 75 ALD 411
Division: Division 2 General Federal Law Number of paragraphs: 30 Date of last submission/s: 5 February 2024 Date of hearing: 5 February 2024 Place: Adelaide Counsel for the Applicant: Mr S Kikkert Solicitor for the Applicant: Masothy Yin Counsel for the First Respondent: Mr A Hall Solicitor for the Respondents: Australian Government Solicitors Second Respondent: Submitting appearance, save as to costs ORDERS
ADG 238 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DEJ18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
2 MAY 2025
THE COURT ORDERS THAT:
1.The originating application filed on 19 June 2018, as amended by an amended originating application filed on 11 December 2023, be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LUCEV
INTRODUCTION
Before the Court is an amended application for judicial review (“Amended Judicial Review Application”) filed on 11 December 2023 and made pursuant to s 476(1) of the Migration Act 1958 (Cth) (“Migration Act”). The Amended Judicial Review Application seeks review of a decision made by the Immigration Assessment Authority (“Authority Decision” and “Authority” respectively) on 29 May 2018. The Authority Decision affirmed a decision made by a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, now the Minister for Home Affairs, Immigration and Multicultural Affairs, Cyber Security and the Arts (“Minister”) not to grant the applicant, DEJ18, a Safe Haven Enterprise Visa (“SHE Visa”).
At hearing:
(a)the Court Book (“CB”) was marked as Exhibit 1; and
(b)the affidavit of Maria Pappas affirmed 15 January 2024 (“Pappas Affidavit”), annexing a copy of the transcript of an interview with the Delegate on 18 August 2017 (“Delegate Interview Transcript” and “Delegate Interview” respectively), was read by the Minister.
References to statutory provisions in these Reasons for Judgment are, unless otherwise indicated, references to the statutory provisions of the Migration Act, and to the provisions thereof as they were at the time of the Authority Decision.
BACKGROUND
The general background to the matter is as follows:
(a)DEJ18 is a citizen of Iraq who arrived in Australia on 22 March 2013: CB 155 and 204;
(b)on 14 April 2016 DEJ18 applied for the SHE Visa: CB 58;
(c)DEJ18 claimed to fear harm because of
(i)his religion (Shia Muslim);
(ii)the fact that he was a barber; and
(iii)the fact that he had been in Australia and was wealthy: CB 99 at [4] and 157-158;
(d)on 27 November 2017 the Delegate’s Decision was to refuse to grant DEJ18 the SHE Visa: CB 151 and 155; and
(e)on 29 May 2018 the Authority Decision was to affirm the Delegate’s Decision: CB 203 and 214.
In relation to the information before the Authority:
(a)subject to one exception, the Authority considered that DEJ18’s submission dated 19 December 2017 (“December 2017 Submissions”) and statement dated 21 December 2017 (“December 2017 Statement”) restated DEJ18’s claims before the Delegate and consisted of arguments in response to the Delegate’s Decision, and to that extent the Authority took them into account: CB 204 at [5];
(b)DEJ18 had provided the December 2017 Statement to the Authority in which he claimed that he feared being harmed by his ex-wife's family or tribe in Iraq: CB 204 at [6]. DEJ18 claimed his ex-wife’s family would kill him if he is forced to return to Iraq and that he had already been threatened over the telephone by his ex-wife’s relatives. DEJ18 also claimed that this information is not new because “he spoke a lot about the issues he had with his ex-wife during the …[Delegate Interview]”: CB 204 at [6];
(c)the exception related to the claims in the December 2017 Statement that DEJ18 wanted to provide “more information” about his fear of being harmed by his ex-wife’s family and tribe in Iraq: CB 196 at [5]. DEJ18:
(i)requested that the information in the December 2017 Statement be taken into consideration because it was very important to his case and he had a compelling reason for not providing it earlier: CB 196 at [4];
(ii)claimed that this information was not new, stating “I spoke a lot about the issues I have had with my ex-wife during my … visa interview, but I was never asked any questions about how it specifically related to my claims for protection [and] so [I] never had the opportunity to provide this information”: CB 196 at [5];
(iii)stated that he and his wife divorced after they arrived in Australia, and prior to their divorce DEJ18 was accused of domestic violence offences: CB 196-197 at [6]-[7];
(iv)stated that his ex-brother-in-law misunderstood what had occurred, and believed that DEJ18 had attempted to kill his ex-wife which wasn’t true, and DEJ18 was never convicted of any offences: CB 196-197 at [7]; and
(v)stated that his ex-wife’s family in Iraq are aware of allegations made by him that his ex-wife was unfaithful, and have threatened to kill DEJ18 if he went back to Iraq unless he can prove that the allegations are true: CB 197 at [8];
(d)in the December 2017 Submissions DEJ18 stated that:
(i)the claims that he feared being harmed by his ex-wife’s family and tribe did not constitute new information “because these claims have already been put forward and acknowledged” by the Department in the Delegate’s Decision: CB 189; and
(ii)he discussed his domestic situation in Australia in detail during the Delegate Interview, but at no stage was he asked questions about how this may relate to his claims for protection: CB 189.
In the Authority Decision the Authority:
(a)dealt with DEJ18’s claim to fear harm from his ex-wife’s family in the following way: CB 205 at [7]:
(i)found that DEJ18’s claims to fear harm from his ex-wife’s family in Iraq was new information and contained personal information;
(ii)found the claims were not reflected in the Delegate’s Decision nor the Delegate Interview, both of which only refer to the domestic violence charges and his divorce from his wife;
(iii)did not accept DEJ18’s explanation that he never had the opportunity to provide this information, noting that toward the conclusion of the Delegate Interview, and not long after a lengthy discussion about the problems between DEJ18 and his ex-wife that led to their divorce, the Delegate asked DEJ18 several open-ended questions, including why he feared returning to Iraq and whether there was anything else he wanted to add before the interview finished, and DEJ18 made no mention of fearing his ex-wife’s family and said that his relationship with his ex-wife was one of friendship;
(iv)found that the Delegate also offered DEJ18’s then migration agent an opportunity at the conclusion of the Delegate Interview to make submissions on DEJ18’s behalf and that the agent provided post-hearing submissions to the Delegate that mentioned DEJ18’s fear of being separated from his children but did not mention a fear of his ex-wife’s family;
(v)found that DEJ18 had an opportunity to make the claims relating to fearing harm from his ex-wife’s family both at the Delegate Interview and in his agent’s post-hearing submission to the Delegate, and the fact that he did not do so raised questions as to the credibility of the additional claims; and
(vi)having regard to these circumstances, was not satisfied that there were exceptional circumstances to justify considering this information; and
(b)also found that the country information on Iraq provided in the December 2017 Submissions was new information, and was not satisfied that this information could not have been provided to the Delegate, or that it contained personal information given it was general in nature, and on that basis the Authority found that neither limb of s 473DD(b) was met: CB 205 at [8]-[9].
THE AMENDED JUDICIAL REVIEW APPLICATION
There are three grounds in the Amended Judicial Review Application, but ground 3 was abandoned at hearing. Grounds 1 and 2 appear immediately below.
Grounds 1 and 2
Grounds 1 and 2 are as follows:
1.The IAA fell into jurisdictional error by failing to consider the representations made by the applicant and/or failing to engage in an active intellectual process in regard to those representations. By failing to address a substantial, clearly articulated claim, the IAA fell into jurisdictional error.
…
2. The IAA fell into jurisdictional error by finding that the applicant’s claims were “new information” and that the “claims are not reflected in the delegate’s decision or the SHEV interview” (IAA at [7], CB, p 205). By doing so, the IAA
a. misapplied s.473DD; and/or
b. failed to consider a relevant consideration; and/or
c.made a finding when there was no evidence to make that finding.
Submissions
DEJ18’s submissions on ground 1
DEJ18’s submissions on ground 1 are as follows:
(a)during the Delegate Interview DEJ18 explained that:
(i)he physically assaulted his then wife and she divorced him on account of the domestic violence incident: CB 157;
(ii)he had spoken to his ex-wife’s brother about assaulting his ex-wife and his ex-brother-in-law believed that he had killed his ex-wife: CB 158;
(iii)in Iraq issues relating to marriage are matters of interest for the wider family and tribe;
(iv)when a divorce or a dispute takes place it is usually governed by the family or tribe to ensure that both parties are satisfied with the outcome; and
(v)due to the allegations made against him DEJ18 fears that he will be targeted by his ex-wife’s relatives and tribe in Iraq, particularly in light of his brother-in-law’s misunderstanding that DEJ18 had attempted to kill his ex-wife;
(b)the duty to consider representations made by an applicant requires a decision maker to engage in an active intellectual process with reference to those representations: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CTB19 [2020] FCAFC 166; (2020) 280 FCR 178 (“CTB19”) at [15(7)] per McKerracher, Kerr and Wigney JJ;
(c)DEJ18’s claims regarding fearing harm from his ex-wife’s relatives and tribe in Iraq, was “significant and clearly expressed” and/or “clearly articulated and substantial or significant”: CTB19 at [15(7)] per McKerracher, Kerr and Wigney JJ. Indeed, it was recognised as such by the Delegate in the Delegate’s Decision. The Delegate acknowledged this claim under the heading “Part 4: Protection claims”, as follows at CB 157-158:
The applicant provided the following additional information during the PV interview:
…
• He physically assaulted his wife and she divorced him on account of the domestic violence incident;
• He rang his brother in law after he physically assaulted her and his brother in law misunderstood him thinking he had killed her when he confessed he had beaten her to him.
(d)these claims, which were not new, and which had previously been raised, were also specifically brought to the Authority’s attention. In the December 2017 Submissions DEJ18’s migration agent made it abundantly clear what DEJ18’s claims were, namely:
(i)DEJ18 holds a well-founded fear of being persecuted on the grounds of his membership of a particular social group, namely, as a “divorcee” and as a “[m]an accused of domestic violence”: CB 186;
(ii)DEJ18 will “face significant harm at the hands of his [ex-]wife’s family/tribe in the form of: a) Arbitrary deprivation of his life; and, b) Torture; and, c) cruel or inhuman treatment or punishment; and, d) degrading treatment or punishment”: CB 187;
(iii)that the Delegate had failed to consider DEJ18’s claims relating to his ex-wife’s family and tribe due to his marriage breakdown and the allegations of domestic violence made against him in Australia: CB at 189;
(iv)DEJ18’s migration agent provided a footnote to refer the Authority to the relevant parts of the Delegate’s Decision where the Delegate has acknowledged these claims as follows at CB 189:
DIBP decision record, page 3, Part 4: Protection claims, dot-point 3 and dot-point 18 to 21; Part 5: Finding of Fact, dot-point 8-9.
(e)the Authority nevertheless refused to consider DEJ18’s claim that he feared being harmed by his ex-wife's family or tribe in Iraq on the basis that it was “new information” and that the claims are not reflected in the Delegate’s Decision or the Delegate Interview: CB 205 at [7]. When the Authority summarised DEJ18’s claims at CB 205-206 at [10], there is no mention of DEJ18’s claim to fear harm from his ex-wife's family/tribe in Iraq, and it must be concluded that this claim was not considered by the Authority; and
(f)in circumstances where this claim was not “new information” and had in fact been previously raised, the Authority fell into jurisdictional error by not considering this claim. There was no legal justification for ignoring this claim, and the Authority had a duty to consider these representations and to engage in an active intellectual process regarding them.
DEJ18’s submissions on ground 2
DEJ18’s submissions on ground 2 are as follows:
(a)in the December 2017 Statement DEJ18:
(i)claimed that his ex-brother-in-law misunderstood him and thought that he had attempted to kill his ex-wife and as a result of this he fears being harmed by his ex-wife’s family or tribe in Iraq: CB 204 at [6]; and
(ii)claimed that this information is not new and that “he spoke a lot about the issues he had with his ex-wife during the … [Delegate Interview]” and that he had also raised a claim during the Delegate Interview that he feared being harmed by his ex-wife's family or tribe in Iraq if he is forced to return to Iraq: CB 204 at [6];
(b)the Authority did not accept these claims and refused to consider this information on the basis that it was “new information” finding at CB 205 at [7] that:
…Contrary to their suggestions, the claims are not reflected in the delegate’s decision or the … [Delegate Interview], that refer only to the domestic violence charges made against the applicant and his divorce from his wife…
(c)it was clear that at least some of this information in this statement was not “new” and that it was in fact part of a previously acknowledged claim by the Delegate. The Delegate acknowleded that DEJ18 had spoken to his ex-wife’s brother about assaulting his ex-wife and his ex-brother-in-law believing that he had killed his ex-wife: CB 158. Despite this claim being acknowledged by the Delegate the Authority did not acknowledge this claim;
(d)by incorrectly finding that DEJ18 had not previously made this claim and that it was new information, the Authority:
(i)misapplied s 473DD; or
(ii)alternatively, or additionally, failed to consider a relevant consideration; and
(e)alternatively, or additionally, the Authority’s finding that DEJ18’s claim of fearing harm from his ex-wife's family or tribe in Iraq was “new information” that was not reflected in the Delegate’s Decision or the Delegate Interview is invalidated as there was no evidence or other material to justify the making of that finding, and if a decision is based on a particular fact for which there is no evidence, and the fact does not exist, the decision is flawed, whatever the relative importance of the fact: Minister for Immigration and Multicultural Affairs v Al-Miahi [2001] FCA 744; (2001) 65 ALD 141 at [38] per Sundberg, Emmett and Finkelstein JJ.
Minister’s submissions on grounds 1 and 2
The Minister’s submissions on grounds 1 and 2 are as follows:
(a)grounds 1 and 2 are not made out because the Authority’s conclusion that DEJ18’s claims regarding fearing harm from his ex-wife’s family did constitute new information for the purpose of s 473DD was correct. DEJ18’s arguments on grounds 1 and 2 are wrong both factually and legally;
(b)DEJ18’s arguments are factually wrong because it is incorrect to say that DEJ18 raised his claims regarding fearing harm from his ex-wife’s family before the Delegate: Pappas Affidavit, Delegate Interview Transcript;
(c)DEJ18’s arguments are legally wrong because, as DEJ18’s claims regarding fearing harm from his ex-wife’s family were not raised before the Delegate, these claims were new information under s 473DD. As these claims constituted new information for the purpose of s 473DD it is not the case that the Authority (as alleged by DEJ18) failed to consider these claims, misapplied s 473DD failed to take into account a relevant consideration or made a decision based on a particular fact for which there was no evidence;
(d)DEJ18’s submissions state that during the Delegate Interview he raised the matters set out at [9] above;
(e)it may be accepted that the matters set out above at [9(a)(i) and (ii)] were raised with the Delegate and are reflected in the Delegate’s Decision: CB 157-158. The matters set out above at [9 (a)(iii) to (v)] were not, however, raised with the Delegate, and are not reflected in the Delegate’s Decision or the Delegate Interview. In relation to the Delegate Interview, as found by the Authority, DEJ18 made no mention of fearing his ex-wife’s family or tribe: CB 205 at [7]. These matters were first raised in the December 2017 Submissions: CB 189-190. The December 2017 Submissions state that the following passage in the Delegate’s Decision represents the Delegate acknowledging DEJ18’s claims regarding fearing harm from his ex-wife’s family: CB 157-158:
The applicant provided the following additional information during the PV interview:
…
•His wife has custody of their children.
•He physically assaulted his wife and she divorced him on account of the domestic violence incident.
•He rang his brother in law after he physically assaulted her and his brother in law misunderstood him thinking he had killed her when he confessed he had beaten her to him.
•The domestic violence charge went before the court and his ex-wife dropped the charges and he was not convicted. He is sorry for his actions.
(f)the above passage refers to DEJ18’s divorce from his wife, the allegations of physical assault and domestic violence charges, the misunderstanding with his ex-brother-in-law who believed DEJ18 attempted to kill his ex-wife, and that the charges were dropped and DEJ18 was not convicted. There is, however, no reference to DEJ18’s claims that he fears harm from his ex-wife’s family if he were to return to Iraq. As such, DEJ18’s argument that his claims regarding fearing harm from his ex-wife’s family were raised before the Delegate is factually wrong because it is not supported by the evidence.
As DEJ18’s claims regarding fearing harm from his ex-wife’s family were not raised before the Delegate, the Authority was correct to conclude that these claims constituted new information for the purpose of s 473DD: Minister for Home Affairs v DUA16 [2020] HCA 46; (2020) 271 CLR 550; (2020) 95 ALJR 54; (2020) 385 ALR 212 (“DUA16”) at [25] per Kiefel CJ, Bell, Keane, Gordon and Edelman JJ; CVK16 v Minister for Immigration and Border Protection [2017] FCA 1434; (2017) 257 FCR 297; (2018) 160 ALD 220 (“CVK16”) at [32]-[33] per McKerracher J. CVK16 has subsequently been cited with approval in ADN18 v Minister for Home Affairs [2018] FCA 1677 at [39] per Griffiths J; FBR18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1620 at [68] per Farrell J; BDR18 v Minister for Home Affairs [2020] FCA 212 at [31] per Lee J; EEP18 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FCA 682 at [60] per Raper J.
DEJ18’s claims that he feared harm from his ex-wife’s family, while based in part on information before the Delegate, were a new claim and therefore constituted “new information” for the purpose of s 473DD. DEJ18’s claims were new information because they were information of an evidentiary nature which was not before the Delegate, that is information that DEJ18 had a fear of harm from his ex-wife’s family. As set out above, while DEJ18 raised his divorce, domestic violence charges and the misunderstanding with his brother-in-law with the Delegate, he did not raise that he feared harm from his ex-wife’s family if he were to return to Iraq.
Consideration
Ground 1
It is a well-established principle that the Authority must consider all the claims made by an applicant and all of the integers of those claims as articulated by the applicant: Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244 (“Htun”) at [42] per Allsop J; Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321(“Dranichnikov”); Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431; (2013) 136 ALD 547 at [34] and [62] per Kenny, Griffiths and Mortimer JJ. An applicant’s claims to meet the criteria for a protection visa are mandatory considerations under the Migration Act: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27 (“NABE (No 2)”) at [63] per Black CJ, French and Selway JJ; Htun at [42] per Allsop J.
In EVA17v Minister for Immigration and Border Protection [2018] FCAFC 214; (2018) FCR 304 at [36] per Perry, Derrington and Wheelahan JJ the Full Court of the Federal Court observed as follows:
Undoubtedly, a failure to consider a relevant component integer of a claim may, in appropriate circumstances, constitute a jurisdictional error: BZAFB v Minister for Immigration and Border Protection [2018] FCA 995 at [9] per Flick J. Necessarily the decision-maker is also required to consider the claims and the integers thereof which are not expressly articulated but which necessarily arise on the materials before it: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [61]…
In CTB19 at [15(7)] per McKerracher, Kerr and Wigney JJ the Full Court of the Federal Court said as follows:
The representations need to be ‘significant and clearly expressed’ (GBV18 at [32(d)]) or ‘clearly articulated and substantial or significant’: Omar (at [39]); GBV18 (at [32(e)]-[32(f)]) and EVK18 (at [14]). Put another way in AXT19 (at [56]) and applied by Bromberg and Mortimer JJ in DQM18 (at [27]):
‘[t]he greater the degree of clarity in which a claim has been made and advanced for consideration, the greater may be the need for the [decision-maker] to consider the claim in clear terms. Conversely, the more obscure and less certain a claim is said to have been made, the less may be the need for the [decision- maker] to consider the claim.
It is the Authority’s function to respond to the claims that DEJ18 advanced: Dranichnikov at [78] per Kirby J; SGBB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 709; (2003) 199 ALR 364; (2003) 75 ALD 411 at [17] per Selway J, or as the High Court put it in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582; (2022) 96 ALJR 497; (2022) 400 ALR 417; (2022) 178 ALD 304 at [24] per Kiefel CJ, Keane, Gordon and Steward JJ to “consider” the review material, that is to “read, identify, understand and evaluate” it.
An examination of the materials before the Court reveals that DEJ18 made claims to the Delegate that:
(a)he physically assaulted his then wife and she divorced him on account of the domestic violence incident: CB 157; and
(b)he had spoken to his ex-wife’s brother about assaulting his ex-wife and his ex-brother-in-law believed that he had killed his ex-wife: CB 158,
and that is not really in dispute.
DEJ18’s divorce from his wife, the allegations of physical assault and domestic violence charges, the misunderstanding with his ex-brother-in-law who believed DEJ18 attempted to kill his ex-wife, and that the domestic violence charges were dropped and DEJ18 was not convicted, were all matters which were before the Delegate, but that was the limit of the relevant factual matters raised by DEJ18 with the Delegate. Thus, the same examination of the materials before the Court reveals that DEJ18 did not make claims to, or submit to, the Delegate that:
(a)in Iraq issues relating to marriage are matters of interest for the wider family and tribe;
(b)when a divorce or a dispute takes place it is usually governed by the family or tribe to ensure that both parties are satisfied with the outcome; and
(c)due to the allegations made against him DEJ18 fears that he will be targeted by his ex-wife’s relatives and tribe in Iraq, particularly in light of his ex-brother-in-law’s misunderstanding that DEJ18 had attempted to kill his ex-wife.
Insofar as a fear of harm is concerned DEJ18 simply did not raise with the Delegate that he feared harm from his ex-wife’s family or tribe if he were to return to Iraq.
There was therefore no claim (and certainly no claim which was clearly articulated or expressed, substantial or significant) made to the Delegate which would have been in the materials referred to the Authority for consideration under s 473CB. It follows that the Authority could not have failed to address a claim which was not made, and therefore ground 1 of the Amended Judicial Review Application is not made out and does not establish jurisdictional error in the Authority Decision.
Ground 2
In 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 [24] per Gageler, Keane and Nettle JJ, the plurality stated that:
[t]he term “new information” must be read consistently when used in ss 473DC, 473DD and 473DE as limited to “information” (which may or may not be recorded in a document), in the ordinary sense of a communication of knowledge about some particular fact, subject or event…
In AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; (2020) 269 CLR 494; (2020) 94 ALJR 1007; (2020) 384 ALR 196 (“AUS17”) at [3] per Kiefel CJ, Gageler, Keane and Gordon JJ, the plurality said that:
“Information” – a communication of “knowledge of facts or circumstances … of an evidentiary nature” – amounts to “new information” if the information meets two conditions. The first is that the information was not before the Minister at the time of making the referred decision. The second is that the Authority considers that the information might be “relevant” to the review, meaning that the Authority thinks that the information might be capable of rationally affecting its assessment of the probability of the existence of some fact about which it might be required to make a finding in its decision on the review.
In DUA16 at [25] per Kiefel CJ, Bell, Keane, Gordon and Edelman JJ “new information” was described as “documents or information of an evidentiary nature that were not before the Minister at the time of making the referred decision and which the Authority considers may be relevant”.
The issue of whether a new claim based on information already before the decision-maker can amount to “new information” was considered in CVK16. CVK16 had referred in his protection visa application to a criminal charge in Australia that was withdrawn. Before the Authority CVK16 sought to advance a new claim as to why he feared harm in Sri Lanka based on the fact he had been charged with sexual penetration of a child under 16 years of age: CVK16 at [32]-[33] per McKerracher J. In CVK16 it was held that the “new claim” (that is, a fear of harm in Sri Lanka as a result of having been charged in Australia) did involve “new information” and was subject to the statutory prohibition in s 473DD: CVK16 at [53] per McKerracher J. It is now well-established that a new claim based on information already before a Delegate can constitute “new information” for the purpose of s 473DD: see the cases cited in the Minister’s submissions at [12] above.
DEJ18’s claims that he feared harm from his ex-wife’s family, while based in part on information before the Delegate, were new claims and therefore constituted “new information” for the purpose of s 473DD. DEJ18’s claims were new information because they were information of an evidentiary nature which was not before the Delegate, that is information that DEJ18 had a fear of harm from his ex-wife’s family.
The alleged new information is that if DEJ18 were to return to Iraq he feared harm from his ex-wife’s family, who would at some future point harm him. No claim or factual material to this effect had been put before the Delegate. Therefore, either the claim or if the claim had within it factual information, that factual information, was new, in that it was not before the Delegate at the time of the Delegate’s Decision for the purposes of s 473DC(1)(a). That DEJ18 would, if he went back to Iraq be at risk from his ex-wife’s family, thus increasing the alleged risk of harm to himself, was, only later put, as a matter of factual information, to the Authority. It was new information because it was not before the Delegate and it was relevant to the Authority’s review: AUS17 at [3] per Kiefel CJ, Gageler, Keane and Gordon JJ; DUA16 at [25] per Kiefel CJ, Bell, Keane, Gordon and Edelman JJ. It follows, therefore, that there was no error in the Authority Decision in this respect.
Ground 2 of the Amended Judicial Review Application is therefore not made out and does not establish jurisdictional error in the Authority Decision.
CONCLUSION AND ORDER
DEJ18 has not made out ground 1 or ground 2 of the Amended Judicial Review Application, and has therefore failed to establish jurisdictional error in the Authority Decision. It follows that there will be an order dismissing the Amended Judicial Review Application.
The Court will hear the parties as to costs.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 2 May 2025
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