DXQ17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 545
•17 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DXQ17 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 545
File number(s): SYG 2736 of 2017 Judgment of: JUDGE GIVEN Date of judgment: 17 June 2024 Catchwords: MIGRATION – Whether Immigration Assessment Authority properly assessed new information Legislation: Migration Act 1958 (Cth) ss 5H, 36, 473CA, 473CB, 473DD Cases cited: APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23
AUS17v Minister for Immigration and Border Protection (2020) 384 ALR 196
BVD17 v Minister for Immigration and Border Protection (2019) 373 ALR 196
BXT17 v Minister for Home Affairs (2021) 283 FCR 248
DQI17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 106
DQS19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 675
FMA17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 456
Division: Division 2 General Federal Law Number of paragraphs: 72 Date of hearing: 21 February 2024 Place: Sydney Applicant: In person Counsel for the Respondents: Mr G Johnson Solicitor for the Respondents: MinterEllison ORDERS
SYG 2736 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DXQ17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
17 JUNE 2024
THE COURT ORDERS THAT:
1.The application filed on 31 August 2017 is 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 GIVEN:
Before the Court is an application for judicial review filed by the applicant, seeking review of a decision made by the Immigration Assessment Authority (Authority) on 18 August 2017, affirming a decision of a delegate of the first respondent (delegate) to refuse to grant him a Temporary Protection (Class XD) visa (visa).
BACKGROUND
The factual background of this matter is derived from the submissions of the first respondent but, unless otherwise indicated, does not appear to be in dispute.
The applicant is a citizen of Iraq who arrived in Australia on 14 March 2013 and applied for a protection visa on 8 April 2016 (Court Book (CB) 105 and 144). In his protection claims the applicant asserted a fear of harm if returned to Iraq on the basis of his refusal to join any political party in Iraq, his opposition to the fatwa issued in 2014 by the Grand Ayatollah, and his unwillingness to join the Popular Mobilisation Forces (PMF). He also claimed to fear harm from members of his ex-wife’s family who are fighters with a Shia militia group.
On 11 April 2013, the applicant participated in an irregular maritime arrival interview (arrival interview) (CB 1 to 26).
On 5 December 2016, the applicant participated in an interview with the delegate (CB 119 to 122 and 145) (TPV interview).
On 27 January 2017, the delegate refused to grant the applicant the visa (CB 144). That decision was referred to the Authority for review, pursuant to s 473CA of the Migration Act 1958 (Cth) (Act). On 18 August 2017, the Authority affirmed the decision under review (CB 292 to 317).
The Authority’s decision
Information before the Authority
In addition to the material given to it by the Secretary under s 473CB of the Act (CB 293 at [3]), on 21 February 2017 the applicant’s representative sent the Authority an email providing a written submission and accompanying documents (February email), from which the Authority distilled the following five items of new information (being previously un-made claims and/or country information) pertaining to:
(a)the treatment of people with disabilities in Iraq;
(b)the applicant’s expression of his political views;
(c)actions, including human rights violations, of the Popular Mobilisation Forces in Iraq;
(d)the conduct of the applicant’s arrival interview; and
(e)the applicant’s subsequent marriage to an Australian permanent resident of Lebanese descent;
Protection claims
Prior to discussing the Authority’s assessment of the new information, it is relevant to more fulsomely understand the applicant’s protection claims, which the Authority summarised in the following way (CB 295 to 296 at [16]):
(a)the applicant is an Arab Shia Muslim who lived in Basra prior to his departure from Iraq;
(b)in 1985 he was arrested by security forces, held for three months and tortured because he was perceived to be a member of the opposition Dawa party. As a result of this torture, the applicant sustained a particular injury which resulted in a certain physical impairment[1] (impairment). Because of the impairment, the applicant claimed he experienced harassment and degrading treatment from his community;
(c)the applicant and his (then) wife were invited to join the ‘Al Sadr’ movement and were threatened when they refused;
(d)the applicant was refused a pension because he was not a member of an Islamic party, and was denied welfare support for the impairment, and also for his diabetes. The applicant said that, by contrast, people with medical conditions and who had political connections were able to access welfare support;
(e)he was unable to secure employment as an electrician because of the impairment and lack of party membership. The applicant had to work as a taxi driver, until he eventually leased a shop. The applicant claimed his shop was robbed on a number of occasions because of his perceived political view and the impairment;
(f)the applicant opposed the 2014 fatwa that led to the establishment of the PMF, and believed that an organised army is preferable to a “group of volunteers” (such as the PMF). His views about, and refusal to join, the PMF caused conflict with the family of his wife and eventually led her to divorce him in 2014. The applicant claimed that his ex-wife’s brothers told him that “there was nothing for him in Iraq”, that he could not see his children if he returns, and that “[he is] dead”;
(g)the applicant said his former brothers-in-law were fighters with certain Shia militia groups or members of the Sadrist party or movement. He claimed that the brothers-in-law had threatened him because of his views in relation to the fatwa and the PMF, and because of his refusal to join the Sadrist party or movement. The applicant claimed to fear harm because his former brothers-in-law had become very powerful and may kill him if he returns to Iraq (particularly in circumstances where his political opinions had developed as a result of living “freely” in Australia);
(h)the applicant claimed to have expressed his support for political protests in Iraq with friends there, including with his former brothers-in-law, as well as friends in Australia, and that he will be at risk in Iraq if he expresses his views;
(i)the applicant claimed that he feared harm on return to Iraq because of his refusal to join any political party, his opposition to the 2014 fatwa and refusal to join the PMF. The applicant also said that the way people look at him (because of his impairment) is “very bad for him”, and that the Iraqi authorities are incapable of protecting him; and
(j)the applicant fears harm on return to Iraq from family members of his ex-wife because of his subsequent marriage to a permanent resident of Australia.
[1] The nature of the injury is detailed in the Court Book but has been generalised for the purposes of these reasons for judgment, lest it contribute to any potential identification of the applicant
New information
At [6] of its reasons for decision, the Authority set out the effect of s 473DD of the Act (CB 293).
The Authority assessed the new information the applicant provided about people with disabilities in Iraq (see [7(a)] above and CB 293 at [7] to [8]). The Authority found that the new information (which was independent country information) pre-dated the delegate’s decision (CB 293 at [8]). The applicant submitted that the Authority should consider this new information because he was not aware there would be a question of whether the claimed repeated robberies of his shop were related to his impairment (CB 293 at [7]). The Authority did not accept that explanation, noting the applicant had representation in the protection visa application process and at the delegate interview. The Authority was not satisfied that exceptional circumstances existed to warrant consideration of the information.
The Authority next considered the new information relating to the applicant’s political views (CB 294 at [9] to [11]) (see [7(b)] above). The Authority summarised the political claims advanced by the applicant before the delegate and noted the applicant had been represented in the visa application process, including at the TPV interview. The Authority noted the applicant’s submission that his political views had become stronger as a result of living freely in Australia, but found that no information about how the applicant’s views had developed was included in the submission (CB 294 at [10]). The Authority observed that the applicant’s views as described in the submission were largely consistent with the views previously voiced by him, and noted that no examples of the “increasing boldness” of his opinions had been provided, other than a claim that he shared his views with Iraqis in Australia (CB 294 at [11]). In this regard, the Authority noted the applicant had previously claimed to have engaged in debates of a political nature with friends in Australia.
The Authority then considered the new information about “troubling actions, including human rights violations, committed by the PMF” (see [7(c)] above) which were said to have recently come to light (CB 294 at [12]). The applicant provided two reports post-dating the delegate’s decision, and two reports pre-dating the delegate’s decision, each of which related to the actions of the PMF. By reference to material already before it (including relatively recent country information), the Authority found that this new information did not suggest there had been a material change in the situation in Iraq in relation to the PMF’s involvement in human rights violations and other actions in Iraq.
The Authority next assessed whether to take into account new information that the applicant and other arrivals had been told not to worry about providing an exhaustive statement of claims in arrival interview (CB 294 at [13]) (see [7(d)] above). The applicant had submitted that (anonymisation added):
it would be “unfair to completely reject my credibility regarding any aspect of [the wife]’s brothers actions, beliefs and political alignments based purely off a discontinuity between my statements at the arrival interview [at which I and other arrivals are told not to worry about providing an exhaustive statement of claims, and during which we are highly stressed and unfamiliar with the Protection visa process] and later statement”.
(CB 180).
The Authority again noted that the applicant had been represented throughout the visa application process (including at the TPV interview), and that the delegate had previously expressed concern about the inconsistencies between the applicant’s arrival interview and evidence he gave at the TPV interview. The Authority acknowledged the submission made by the applicant’s representative that individuals who arrive in Australia by boat are interviewed before they receive any legal advice, but ultimately found that in light of the previous opportunities available to the applicant to provide information about his participation in the arrival interview, it was not satisfied that exceptional circumstances existed to justify considering this new information.
Lastly, in relation to the information referred to at [7(e)] above, the Authority considered the applicant’s subsequent marriage to an Australian permanent resident (which is claimed to have occurred after the delegate’s decision) and found that it did represent a change in the applicant’s personal circumstances, and that exceptional circumstances existed to justify its consideration (CB 295 at [14] and [15]).
Findings
With respect to the applicant’s employment, having regard to the varying evidence before it, the Authority did not accept that the applicant faced difficulty accessing employment for any reason, including as a result of his impairment or his lack of membership of any political party (CB 296 to 298 at [17] to [21]).
Having considered the evidence before it, including the omission of any reference in his arrival interview to ill-treatment related to the impairment as being among his reasons for leaving Iraq, and the vague nature of those claims the Authority had significant reservations as to the veracity of the applicant’s evidence on this topic. The Authority was willing to accept that the applicant was occasionally looked at or mocked because of the impairment. However, it did not accept that the applicant experienced any discriminatory treatment in relation to his ability to access education, employment, government services or accommodation (CB 298 to 299 at [22] to [28]).
The Authority did not accept that the applicant’s divorce from his wife in Iraq occurred because of his claimed views in relation to, and lack of interest in joining the PMF, although was prepared to accept that the divergence between the applicant and his (then) wife’s political views had been a contributing factor. The Authority accepted that he was not close to his former brothers-in-law, but did not accept that he would have discussed his political views with them, or that he was threatened by them because of those views. The Authority did not accept that the applicant’s former-brothers-in-law threatened to kill the applicant for any reason (CB 302 at [42] to [56]).
The Authority was willing to accept that a marriage occurred between the applicant and an Australian permanent resident, despite there being no evidence to corroborate it (CB 304 at [57]).
The Authority set out the applicant’s evidence about his political views (CB 305 to 306). It did not accept that the applicant’s views had developed in Australia as claimed, although was willing to accept that the applicant felt a degree of disgruntlement with Shia militia groups, the Iraqi Government and other extremist groups in Iraq, and that he had expressed that dissatisfaction in discussions with his friends in Iraq and Australia (CB 306 at [64] to [65]).
In relation to the applicant’s medical conditions, the Authority accepted that he is diabetic and would require access to medication for his diabetes. It also accepted that the applicant, while in Iraq, applied for welfare assistance due to his diabetes and the impairment, but that said application for assistance was refused on the basis he was considered fit for work (CB 306 at [67] to [68]).
Ultimately, the Authority concluded that the applicant did not meet the requirements of the definition of refugee in s 5H(1) of the Act because he did not have a well-founded fear of persecution for any reason, including because of his former brothers-in-law, any Shia or militia group, the security situation in Basra or as a returnee from a western country (CB 306 to 311). Additionally, the Authority found there was nothing in the applicant’s claims, nor in the country information before it to suggest he would be denied or unable to access medical services in Iraq. The Authority also found that the applicant did not have a well-founded fear of persecution as a returnee from a western country.
Finally, the Authority found there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to Iraq, that there was a real risk the applicant would suffer significant harm, and was therefore not owed complementary protection under s 36(2)(aa) of the Act.
APPLICATION TO THIS COURT
The applicant commenced the instant proceedings by an application to show cause filed with the Court on 31 August 2017. The proceedings were initially docketed to another Judge of the Court (first primary Judge).
On 9 October 2017, a Registrar of this Court made timetabling orders listing the matter for hearing before the first primary Judge on 6 September 2019, together with procedural orders to prepare it for that hearing including a grant of leave the applicant to file an amended application on or by 8 January 2018.
The proceedings were later placed in the central migration docket where they remained until 24 March 2023, when they were docketed to me and on which occasion I made orders granting further leave to the applicant file and serve any amended application by 29 August 2023, and listing the matter for final hearing on 3 October 2023.
Due to a scheduling difficulty, the hearing date was changed to 10:15am on 21 February 2024. At the commencement of the hearing on 21 February 2024, there was no appearance by, or for, the applicant. The matter was called outside the Court room and that this also yielded no appearance. Counsel for the first respondent sought orders that the proceedings be dismissed by reason of the non-appearance. While the Court was delivering ex tempore reasons in respect of that application, the applicant appeared before the Court at about 10:25am, and delivery of reasons halted. No orders had been made as at the time of the applicant’s arrival at Court and, accordingly, a substantive hearing commenced with the applicant being assisted by an interpreter in the Arabic language who had been present since the commencement of the hearing. The applicant and the interpreter confirmed to the Court that they could understand one another.
While the applicant had filed an Affidavit in support of his originating application, regard was not had to it on the basis that it contained nothing of substance in its body, nor did it annex any documents. The Court Book filed for the first respondent was marked Exhibit “1R”. Written submissions were filed for the first respondent. Other than his originating application and the Affidavit to which reference is made above, the applicant has filed no additional documents in these proceedings in time, or at all.
GROUNDS OF APPLICATION
By his application for review, the applicant raises the below three grounds (errors in original):
1.asking a wrong question.
2.relying on irrelevant material.
3.Ignoring relevant material.
At hearing, each of those grounds was interpreted to the applicant and he was given the opportunity to address them in turn.
Ground 1
By this ground, the applicant alleges the Tribunal asked itself a wrong question. When asked to address this ground the applicant said that, because the Authority did not accept that he had been threatened, it erroneously concluded that he could return to Iraq. The applicant reiterated his claim to have been threatened, and objected to what he described as the Authority’s findings about “the percentage of safety back there”.
By this, the Court understood the applicant to be disagreeing with the Authority’s findings in relation to his claim to have been threatened, and that the findings the Authority made in relation to what he described as a “percentage of safety”.
The first respondent’s written submissions correctly observed that, in and of itself, the ground fails to particularise what wrong question the Authority allegedly asked itself. The first respondent relies on [98] and [104] of the Authority’s decision (CB 311 to 312), by which the Authority addressed the relevant tests under ss 36(2)(a) and (aa) of the Act. To contextualise that submission, it is convenient to set out relevant parts of those paragraphs of the Authority’s decision:
98. The applicant does not meet the requirements of the definition of refugee in s.5H(1). The applicant does not meet s.36(2)(a).
……
104. There are not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm. The applicant does not meet s.36(2)(aa).
At hearing the applicant agreed that he disagrees with the Authority’s conclusion as to whether he would face harm on return to Iraq. While it is understandable that the Authority’s conclusions (which were overall not favourable to the applicant), are disagreeable to him, that alone is not a basis upon which error can be established. I accept the first respondent’s submissions that the Authority set out, and properly applied, the requisite statutory tests in respect of each of the refugee and complementary protection criteria. The Authority did not misdirect itself by applying any “percentage” of chance required, below which, it could conclude that the applicant would not face harm.
Accordingly, I am not satisfied ground 1 is made out.
Ground 2
The second ground alleges that the Authority relied on irrelevant material. When asked to speak to this ground the applicant again said that he disagreed with the Authority’s decision. When asked if there was any specific or relevant material to which he wished to direct the Court and which was allegedly overlooked, the applicant said there was not.
The Authority had before it the review material provided by the secretary under s 473CB of the Act (CB 293 at [3]). The Authority also considered whether it could consider new information which the applicant had sought to provide (CB 293 to 295 at [4] to [15]). Subject to consideration of that particular issue (which can be taken to form the contention of ground 3), no error is established in the manner in which ground 2 alleges.
Accordingly, ground 2 must fail.
Ground 3
The third and final ground alleges that the Authority ignored relevant material. At hearing, when asked to speak to this ground, the applicant said that the Authority:
(a)did not accept the claim about threats from his former brothers-in-law; and
(b)overlooked evidence of his divorce, proof of which he had brought to the hearing before this Court.
In respect of the first matter (see [39(a)] above), as was explained in respect of ground 1 including to the applicant at hearing there is a difference between failing to consider information/a claim and not accepting it.
In respect of the second matter (see [39(b)] above), the Court clarified with the applicant that had not submitted the divorce certificate document to the Authority. He confirmed that he had not, as he had only obtained a copy of it after the Authority’s decision was made. The applicant accepted that, having not received a copy of the divorce certificate until after the Authority made its decision, the Authority could not be said to have failed to have regard to it.
I am not satisfied that, even on the basis of how ground 3 was articulated by the applicant at hearing, the manner in which the applicant has advanced this ground is demonstrative of legal error.
The first respondent has interpreted ground 3 more broadly and, consistent with his obligation as a model litigant, construed it beneficially as raising an issue as to whether the Authority complied with s 473DD of the Act in assessing whether to consider the new information (see [7] above), noting in particular the error identified in AUS17v Minister for Immigration and Border Protection (2020) 384 ALR 196 (AUS17) which judgment post-dated the Authority’s decision in the instant case.
The decision in AUS17 sets out the approach the Authority must take in applying assess whether to consider “new information”. As the first respondent correctly observes, despite the plurality’s statement (in AUS17 at [11]) that logic and policy require new information to first be assessed against the criteria in both s 473DD(b)(i) and (ii), and only then against the criterion in s.473DD(a), it has been recognised that it is unnecessary for the Authority to engage in any particular formulaic consideration of s 473DD(b). In support of this contention, the first respondent relies on APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23 per Markovic J at [79], DQS19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 675 per Middleton J at [27] to [28] and DQI17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 106 per Middleton J at [46] to [50].
It is understandable that, without the benefit of AUS17 at the time the Authority made its decision, it is unlikely to have strictly complied with the assessment structure identified in that case. Further, and as Kenny J observed in FMA17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 456, the justification for not construing the Authority’s reasons in addressing s 473DD with too high a level of scrutiny can be sourced from the absence of any statutory requirement to give reasons for a s 473DD determination: BVD17 v Minister for Immigration and Border Protection (2019) 373 ALR 196.
The first respondent acknowledges this does not mean that the reasons actually given by the Authority are unimportant, or that errors evident in the reasons given should be ignored, citing BXT17 v Minister for Home Affairs (2021) 283 FCR 248 per Markovic, O'Callaghan and Anastassiou JJ. However, in the present case the first respondent says that, in a substantive sense, the Authority did properly direct itself each of the limbs of s 473DD of the Act. I agree for the following reasons.
By the February email, the Authority distilled the five items of new information/ fresh claims extracted at [7(a)] to [7(e)] above.
At the outset it can be observed that in relation to the applicant’s marriage as referred to at [44] above, it is unnecessary to address that new information as part of ground 3 because the Authority decided to take that information into account at (CB 295 at [15]).
In respect of the remaining 4 pieces of new information the first respondent says that (CB 293 at [6]) the Authority set out the effect of s 473DD of the Act as requiring it not to consider any new information unless satisfied that there were exceptional circumstances to justify considering the new information, that the new information was not, and could not have been, provided to the delegate before the delegate made the decision, and/or that the new information is credible personal information that was not previously known and, had it been known, may have affected the outcome of the applicant’s claims.
In respect of the first piece of new information, namely information about the treatment of people with disabilities in Iraq, the Authority considered this at [7] and [8] of its reasons (CB 293 to 294).
As the first respondent correctly identifies, the new information on this topic was specifically in the nature of country information. The applicant said the Authority should consider the country information because he had not been aware a question would arise as to whether claimed repeated robberies of his shop, were related to his impairment. At [8] of its reasons (CB 293) the Authority did not accept that explanation and observed that the applicant had the benefit of representation throughout the protection visa application process, including at the TPV interview. The Authority was, accordingly, not satisfied that exceptional circumstances existed to warrant consideration of the information and found that this new information:
(a)pre-dated the delegate’s decision: s 473DD(b)(i)); and
(b)was incapable of meeting s 473DD(b)(ii) because it was not “personal” information: citing AUS17 (supra) and [24] per Edelman J.
I am not satisfied that there is any error in the manner in which the Authority applied
s 473DD in respect of the first piece of new information about treatment of people with disabilities in Iraq, even accepting that it did not strictly follow the staged approach identified in AUS17.
In respect of the second piece of new information, namely new information about applicant’s political views, the Authority assessed this new information at [9] to [11] of its decision by summarising the applicant’s political as advanced before the delegate (CB 294). The Authority again noted that the applicant had been represented in visa application process. While acknowledging a submission that the applicant’s political views had become stronger since that time, the Authority observed that, despite this assertion, no information about how his views had developed was included.
The first respondent highlights the observation made by the Authority, that the applicant’s political views as expressed in the submission were largely consistent with his views as previously expressed and noted that no examples of an “increasing boldness” in the manner in which the applicant expressed his political opinions had been provided, other than to say that the applicant shared his views with Iraqis in Australia.
The first respondent says that the Authority noted the applicant had previously claimed to have engaged in debates of a political nature with friends in Australia and that it is implicit in the Authority’s reasons that it accepted that the applicant was purporting to advance new information that had not been available before the delegate. The first respondent says that this substantively satisfies s 473DD(b)(i) of the Act. The first respondent also submitted that the effect of the Authority’s consideration of the new information was such that the Authority should be taken as concluding that the new information contained nothing of substance such that, had it been known to the delegate, may have affected consideration of the applicant’s claims. Accordingly, the first respondent submitted that this substantively satisfies s 473DD(b)(ii) of the Act.
I accept the submissions of the first respondent in respect of this item of information. It is again true that the Authority did not strictly follow the approach identified in AUS17. However, there is no error in the manner in which the Authority consider the new claims about the applicant’s political views in respect of s 473DD of the Act.
The third piece of new information, centred on “troubling actions and potential human rights abuses through Iraq” which had recently come to light (CB 176 and 294 at [12]). The first respondent submits that the Authority turned its mind to the availability of the information at the time of the delegate’s decision and, as with the information previously considered (CB 294 at [9] to [11], found that the new information did not suggest there had been a material change in the situation in Iraq in relation to the PMF’s involvement in human rights violations and other actions in Iraq. Accordingly, the first respondent says that the Authority substantively considered s 473DD(b)(i) of the Act.
The first respondent says that the finding of the Authority in that respect was that the information was not information that may have affected the consideration of the applicant’s claims, thereby applying s 473DD(b)(ii) of the Act. Those conclusions are said by the first respondent to have been among the circumstances the Authority took into account in concluding that there were no exceptional circumstances to justify considering the information.
I accept the submissions of the first respondent that it can be inferred, from the description of the claim as having developed after the delegate’s decision, that the Authority found the information in question could not have been provided to the delegate. I also accept that it is tolerably clear from the decision of the Authority at [11] that it found this information would not be information which might affect consideration of the applicant’s claims.
At [12] of its reasons for decision the Authority considered information from the applicant about the “troubling actions”, including human rights violations committed by the PMF. By the submission in which that new information was provided, the applicant identified two sources of information, namely:
(a)articles from Human Rights Watch articles (by reference to hyperlinks in footnotes 1 and 2 of CB 176, dated 2 February 2017 and 16 February 2017), both of which dates were after the delegate’s decision (made on 27 January 2017); and
(b)two articles from 2016 (thereby predating the delegate’s decision) in footnotes 3 and 4 of CB 177.
The Authority made express reference to the fact that some of the information was available before the delegate’s decision had been made, and some not until after. Significantly however, those articles were general in nature, and there is no suggestion by the applicant to the Authority (or even to the Court) that the information contained in any of those articles was credible personal information pertaining to the applicant. The Authority also noted, by reference to its consideration of whether the information might have made a difference to consideration of the applicant’s claims that the applicant did not suggest there had been a material change in the situation in Iraq. The first respondent says that those factors should all be taken to have informed the Authority’s conclusion of a lack of exceptional circumstances. I agree, and am not satisfied that the Authority erred in the manner in alleged in respect of this new information.
The final piece of new information emanates from CB 180 (bullet point 1) where, as part of his submission to the Authority, the applicant sought to take issue with the delegate’s decision. By that submission the applicant said that he and “other arrivals” were told at their arrival interviews to not worry about providing an exhaustive statement of claims. The first respondent says that despite this submission being put to critique the delegate’s decision, the Authority properly noted that information as to the alleged experiences of the applicant and others at the arrival interview, was new information.
The first respondent submitted that the Authority had regard to that submission, but also to the opportunities the applicant otherwise had to provide that information to the delegate (again noting that he had been represented at that stage). The first respondent highlights that the delegate expressed concern regarding certain inconsistencies between the applicant’s evidence in his arrival interview, and his later evidence during the TPV interview. The Authority acknowledged the applicant’s claim that the arrival interview took place before he received any legal advice and, therefore, that he did not have the opportunity to present all his claims at that interview. The Authority found that, in light of the previous opportunities available to the applicant to raise any claims he wished, it was not satisfied that exceptional circumstances existed to warrant consideration of this information.
The first respondent contends that, by that reasoning, the Authority can be taken to have considered both the fact that:
(a)the information could have been, but was not, provided to the delegate (as well as the fact that the delegate also had a submission from the applicant as to his explanation); and
(b)whether the applicant had the opportunity to present all of his claims at the arrival interview.
I accept the first respondent’s submissions that the Authority did (substantively) consider both limbs of s 473DD(b) of the Act, and that there is no error in the conclusion that there was a lack of exceptional circumstances to warrant consideration that information.
Even if I was wrong in that conclusion, I have also considered the first respondent’s submissions as to the materiality of any such error, which I accept. Where discrepancies between the applicant’s claims were relevant to the decision (for example, CB 297 at [19]) the Authority’s reasons for decision did not categorically reject claims on the basis that they had not been mentioned in the arrival interview.
I accept the submissions of the first respondent that the closest the Authority could be said to have come to making such a finding was at [26] to [28] of its reasons for decision when considering the applicant’s claims about having experienced degrading harassment and abuse because of his impairment. In that instance, the Authority found that the particular claim wasn’t made in the arrival interview, but was principally critical of the fact that the applicant had failed to provide detail about that claim in his application. As such, it was the lack of detail which was the basis for the rejection. I note that there are other examples throughout the Authority’s decision.
I accept those matters demonstrate that, even if the Authority had taken into account what the applicant says he (and others) had been told at the arrival interview, it was still left without any information about those claims. The Authority did not find the applicant to have been inherently incredible or untrustworthy because of things that were not included in the arrival interview. Accordingly, even if the Authority erred in its decision to not consider the fourth item of information (which is rejected), there was not a realistic possibility that based on the other material before it, this could have realistically led to it making a different decision.
Accordingly, ground 3 is not made out.
Submissions in reply
In submissions in reply the applicant told the Court that he is now married to an Australian citizen with whom he has children, and that he would not have been able to be married in Australia if the authorities here had not recognised his divorce. The applicant made submissions to the effect that he receives no benefits in Australia and that he is greatly assisted by his wife. Accepting for the purposes of these reasons that the aforementioned matters are accurate, the Court has empathy for the applicant’s circumstances and can accept that he has understandably continued to live his life in the time since the Authority’s decision was made. Unfortunately for the applicant, there is no compassionate basis upon which the Court can remit the matter. The applicant may wish to explore what avenues are available to him in respect of Ministerial intervention and/or other migration paths.
CONCLUSION
The applicant has not established any jurisdictional error on the part of the Authority. Absent jurisdictional error the decision of the authority is a privative clause decision, and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 17 June 2024
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