DZD19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 70
•2 November 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DZD19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 70
File number(s): SYG 2639 of 2019 Judgment of: JUDGE DRIVER Date of judgment: 2 November 2021 Catchwords: MIGRATION – review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Iraq – applicant disbelieved in important respects and other fears found not to be well‑ founded – whether the Authority erred in its adverse credibility assessments considered – no jurisdictional error Legislation: Acts Interpretation Act 1901 (Cth), s 25D
Migration Act 1958 (Cth), ss 5AA, 5AAA, 36, 430, 473CB, 473CC, 473DA, 473DB, 473DC, 473DD, 473EA, 477
Cases cited: AAZ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 407
ABT17 v Minister for Immigration and Border Protection (2020) 94 ALJR 928
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 236 FCR 593
ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109
AUF18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCAFC 222
AUS17 v Minister for Immigration and Border Protection (2020) 94 ALJR 1007
AXT19 v Minister for Home Affairs [2020] FCAFC 32
BVC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 565.
BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29
CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146
CQR17 v Minister for Immigration and Border Protection [2019] FCAFC 61
CTE16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 759
DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551
DPI17 v Minister for Home Affairs [2019] FCAFC 43
DTN16 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2019] FCA 1525
EMJ17 v Minister for Immigration and Border Protection [2018] FCA 1462
ETA067 v Republic of Nauru (2018) 92 ALJR 1003
EVS17 v Minister for Immigration and Border Protection [2019] FCAFC 20
EXV17 v Minister for Home Affairs [2018] FCA 1780
Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123
Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210
Minister for Immigration and Border Protection v DZU16 (2018) 253 FCR 526
Minister for Immigration and Border Protection v EEI17 (2018) 261 FCR 461
Minister for Immigration and Border Protection v Haq (2019) 267 FCR 513
Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594
Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441
Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217
Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173
SZOIN v Minister for Immigration and Citizenship [2011] FCAFC 38
WAGP v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 103
WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 74
Wilson v Assistant Minister for Immigration and Border Protection [2017] FCA 1337
Division: Division 2 General Federal Law Number of paragraphs: 95 Date of last submissions: 11 October 2021 Date of hearing: 22 September 2021 Place: Sydney Solicitor for the Applicant: Mr D Taylor of Sydney West Legal and Migration Solicitor for the Respondents: Ms J Xiao of Clayton Utz ORDERS
SYG 2639 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DZD19
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE DRIVER
DATE OF ORDER:
2 NOVEMBER 2021
THE COURT ORDERS THAT:
1.The application as amended by leave granted on 22 September 2021 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review 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 DRIVER:
INTRODUCTION AND BACKGROUND
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 29 August 2019. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from initial submissions filed on behalf of the Minister on 9 March 2020.
The applicant is a citizen of Iraq who first arrived in Australia on 26 January 2013 as an unauthorised maritime arrival[1] (ss 5(1)(a)(i)-(iii), 5AA of the Migration Act 1958 (Cth) (Migration Act)) and therefore his Safe Haven Enterprise Visa (SHEV) application was subject to, and governed by, Part 7AA of the Migration Act. The applicant claimed to fear harm from Shia fundamentalists, Shia militias, and radical Sunni Islamists by reason of his status as a Sunni Muslim (claiming that his family had briefly moved from his home city to Baghdad, for "one day", because of pressure from Shia Muslims) and because he would be imputed as being "secularised" and an apostate or enemy of Islam by reason of his time in Australia. The applicant further claimed to fear harm from the Al Dawa party and by reason of his family connection with members of the Ba'ath party, claiming that after the Ba'athists were ousted his whole family faced employment discrimination, sectarian persecution, suspicion, and abject poverty. Finally, the applicant claimed to fear harm generally if returned to Iraq because an uncle of his ("N") had accused the applicant of being bisexual and of being a terrorist because of his connection with another uncle ("B").
[1] Court Book (CB) 51, 107
The Authority noted at [2] that it had had regard to the referred material under s 473CB but that no further information had been obtained or received. The Authority accepted at [5]-[6] and [11]-[14] aspects of the applicant's claims, namely, that he had uncles who were members of the Ba'ath Party, and he and his family were Sunni Muslims (although the applicant was not devout) and had faced general harassment from Shia groups by reason of their religion (and the applicant may have been the subject of incidents in 2005 and 2010/2011). However, the Authority, at [7]-[10] did not accept that the applicant or his family had faced any harm by reason of their connections with Ba'ath Party members. The Authority also made adverse credibility findings in respect of the applicant's claims concerning Shia militias, noting at [15] that there were "significant omissions, evolving narratives and a lack of material details". The Authority, at [16]-[19] did not accept that the applicant's father had been imprisoned or tortured in 2013, did not accept that the applicant's family had relocated, and did not accept that there had been any interrogations or attempted conversions. The Authority also found that the applicant had not provided a truthful account of events concerning B and N and that the applicant had contrived those claims (outlining a number of difficulties with those claims at [23]-[28]) and ultimately was not satisfied at [20]-[22] and [29] that N had ever made threats or accusations or that the applicant had ever been accused of being gay or a terrorist. On the basis of those findings and country information at [34]-[42], the Authority was not satisfied that the applicant was at risk of harm due to his Sunni faith, Ba'ath links, from Shia Muslims, or from past events, and found that he would be able to resume employment despite some potential discrimination. The Authority also found at [30] and [43] that the applicant would be returning as a voluntary returnee and would be supported by his family and found at [44]-[46] that he would not be imputed with secularism or face harm due to his time in Australia or due to N. For those reasons, the Authority found at [45]-[47] that s 36(2)(a) and (aa) were not satisfied.
THE CURRENT PROCEEDINGS
These proceedings began with a show cause application filed on 14 October 2019. That application was filed outside the period prescribed by s 477(1) of the Migration Act and the applicant sought an extension of time.
The matter came before me on the hearing on an extension of time on 11 March 2020. Having regard to proposed amendments to the application, I granted the extension of time under s 477(2) of the Migration Act and listed the matter for a final hearing on 22 September 2021.
The application has been amended several times since then. At the trial of this matter on 22 September 2021, the applicant sought leave to rely upon a proposed third version of a second further amended application which had been filed on 16 September 2021 and provided to my chambers on the same day. The granting of leave was vigorously opposed by the Minister’s representative. I nevertheless granted the leave sought and provided an opportunity after the hearing for further written submissions to be provided. I also foreshadowed a likely issue of costs, including in the event that the applicant was successful.
The application as thus amended contains the following grounds:
1.The Authority’s credibility and factual findings concerning the Applicant’s claims concerning accusations made his uncle N were affected by:
[A]failure to consider integer claims of the applicant and evidence concerning him, which was reviewed, accepted, and relied upon by the Delegate,
[B] was affected by unreasonable failure to consider exercising the power under s.473DC to consider getting new information.
[C] the credibility findings lacked a logical basis, and were material to the outcome: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 at [36]-[40];
[D] there was a failure of the Secretary to provide relevant documents
Particulars
The Delegate found that
“Furthermore, the applicant was interviewed by someone from the Australian government regarding allegations that he was a terrorist. He provided the details of the Australian government officer during his PV interview” [CB111] ….
I have assessed the applicant’s claim concerning his problems with his uncle [N] and the evidence he has provided to support his claims. I have also relied on information on departmental systems regarding the applicant’s travel movements, change in contact details and other relevant information. Having considered all this information, I accept that he was harassed by his uncle, [N] because he was perceived to have supported his other uncle, [B] after he revealed he was bisexual. [CB115] …
“In summary, I accept that: … He was accused by his uncle, [N] of being a homosexual because he chose to live with [B]. Furthermore, [N] accused him and [B] of being terrorists in order to have them removed from Australia and sent back to Iraq by the Australian authorities. [CB116]
A. In considering the claim of the applicant that he was accused by his uncle [N] of being a homosexual and a terrorist including by communications with the Australian Government, the Authority failed to consider the integer of the claim of the applicant to have been interviewed by an ASIO officer as a result of information coming to the attention of the Australian authorities.
i.Additionally in failing to consider this integer of the applicant’s claims, the IAA also did not consider the information relied upon by the Delegate who stated “I have also relied information on departmental systems regarding the applicant’s travel movements, change in contact details and other relevant information.”
ii.as referred to by the Delegate at CB115, and unreasonably failed to consider requesting the Secretary to provide the information referred to by the Delegate, it not being new information.
B.The Authority unreasonably failed to consider exercising the s.473DC power to invite the applicant to provide new information in circumstances where the Authority was going to reject as untruthful representations, claims which had been in part accepted by the Delegate, concerning the accusations made by the applicant’s uncle N.
i.The Authority failed to exercise its power reasonably in that it failed to consider requesting further information from the applicant about what he told to his family concerning the termination of the relationship with his uncle N, having regard to the particular sensitivities in Iraqi tribal culture concerning accusations of homosexuality.
ii.The drawing of adverse inferences of untruthfulness required consideration of whether to give the applicant an opportunity to respond to the [new] concerns of the IAA.
iii.The Authority unreasonably failed to consider requesting further information from the Secretary in relation to the “applicant’s travel movements, change in contact details and other relevant information”. [CB115]
C.The factual finding of fact and credibility finding lacked a logical basis, and was material to the outcome: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 at [36]-[40];
i.The reasoning of the IAA that the applicant should not have travelled to Perth if he had any real fear of disclosure by his uncle N. was unreasonable;
ii.In rejecting the Applicant’s claims in part because he travelled back to Perth after the accusations were made, The Authority misunderstood that the threats from the applicant’s uncle N. were about harm that would be inflicted in Australia when they related to an accusation of homosexuality which would result in harm being inflicted in Iraq.
iii.The Authority did not consider how the accusation of homosexuality affected how the accusations could be discussed with family members.
iv.The Authority’s reasoning that B would have informed the family about the accusations (of terrorism) was unreasonable in that it was understood that the accusations by N. were a pretext to get the applicant and his uncle B removed to Iraq where they could be punished for imputed homosexuality, and, as discussed by the Delegate with the applicant, allegations of homosexuality are extremely serious in Iraqi Muslim culture.
v.The Authority misunderstood the applicant’s claim as discussed with the applicant by the Delegate and accepted by the Delegate, that the accusation of terrorism against the applicant by his uncle N was a ploy by the uncle to get the applicant back to Iraq where he could be punished for his imputed homosexuality.
vi.It was unreasonable for the Authority to find that the Applicant’s fear that N. would provide information to Shia militias that the applicant was homosexual depended on N. having standing with the Shia militias.
D.The Authority’s statutory task under s 473CC and s 473DB(1) Migration Act 1958 (the Act) to review the delegate’s decision miscarried because of the failure of the third respondent Secretary to comply with the mandatory obligation under s 473CB(1)(c) of the Act.
Particulars
a.The Secretary did not, at the time the delegate’s decision was referred to the Authority, consider or form a view on the relevance to the review of certain documents falling within the description of ‘other material’ in s 473CB(1)(c) then in the Secretary’s possession and/or control.
b. These documents included:
i.“information on departmental systems regarding the applicant’s travel movements, change in contact details and other relevant information.” as referred to by the Delegate at CB115
c.These documents were before the delegate and accordingly are not “new information” but were not part of the domain of documents considered by the Secretary at the time of referral of the delegate’s decision.
In addition to the court book lodged on 22 November 2019, I have before me as evidence the following material:
(a)the affidavit of Zac Chami made on 21 September 2021, to which is annexed a transcript of the hearing before the delegate conducted on 14 June 2019;
(b)the affidavit of Daniel Robert Taylor made on 10 march 2020, to which is annexed an incomplete transcript of the same hearing;
(c)an affidavit of Aminata Soriena Conteh made on 5 March 2020, to which is annexed an image of an SMS exchange in Arabic and English, together with an English translation of the whole exchange.
Both the applicant the Minister filed pre hearing written submissions (although those of the Minister were not wholly responsive to the judicial review application in its final form) and the parties made oral submissions through their representatives at the trial.
As noted above, post hearing submissions were also provided. Those of the Minister were filed on 6 October 2021 and those of the applicant were filed on 10 October 2021. As noted below, objection was taken to the applicant’s submissions in reply by email exchange on 11 October 2021.
CONSIDERATION
The applicant’s contentions
Ground 1 incorporates four sub-grounds because each of the sub-grounds relates in part to the relationship between unreasonableness and procedural fairness and the rejection by the Authority of the totality of the claim concerning the applicant’s uncle N, and the resulting adverse credibility finding of untruthfulness. Credibility findings are not linear.
The applicant contends that the Authority’s failure also falls foul of the requirements indicated in DPI17 v Minister for Home Affairs,[2] in which Mortimer J stated at [124]-[126]:
[2] [2019] FCAFC 43
The question is then what tips this case into a category where the IAA’s failure to consider exercising the s 473DC power can properly be described as an “abuse of statutory power” (SZVFW at [80] (Nettle and Gordon JJ)), or a course “that ‘no sensible [Tribunal] acting with due appreciation of its responsibilities’ could have taken” (SZVFW at [69] (Gageler J), citing Li at [71], in turn quoting Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1064).
Essentially, it is the following factors:
(a)the subject-matter of the impugned narrative – two sexual assaults and a rape (graphically and specifically described by the appellant), said to have been committed by Sri Lankan State actors (namely, members of the Sri Lanka CID);
(b)the importance of that narrative to the appellant’s claims for protection, even accepting there may still have been other reasons he might have been found not to satisfy the protection criteria. The appellant’s narrative regarding the sexual assaults and rape was capable of constituting a particularly strong indication that his fear of returning to Sri Lanka might be well-founded, or that there were substantial grounds to believe he was at risk of serious harm if returned to Sri Lanka;
(c)the well-established importance of observing and hearing an individual recounting such events to the assessment of that individual’s reliability and credibility; and
(d)the fact the delegate had accepted this narrative on the basis of her impression of the appellant’s presentation and demeanour during the interview, and that the appellant and his advisers had assumed (to the knowledge of the IAA because it was stated in the submissions made on the appellant’s behalf to the IAA that the delegate had accepted that the applicant was “tortured and sexually assaulted by Sri Lankan officials on at least two occasions”), that this aspect of the appellant’s narrative would be treated as accepted by the IAA.
A “due appreciation” by the IAA of its responsibilities in determining whether it believed the appellant’s account concerning such a serious issue, in the knowledge it had the power, under s 473DC, to decide to interview him, would have led any IAA acting reasonably to consider whether to exercise that power.
The applicant gave a narrative that the delegate accepted, in combination with additional relevant information on which the delegate relied in accepting the substrata of the applicant’s claims concerning accusations made by his uncle. Ignoring both the applicant’s narrative, failing to advert to or consider his claimed interview with an Australian officer, and failure to advert to or consider the additional relevant information relied upon by the delegate,[3] the applicant submits that the Authority’s decision fell foul of the legal requirements for jurisdictional authority to make the decision.
[3] at CB 115
The Authority is said to have failed to consider an integer or claim of the applicant, his claimed interview with a person he understood to be an ASIO officer even to the point of questioning whether he was involved with ISIS and indicating that there were concerns for his safety.
In consequence the Authority is said to have made a jurisdictional error.[4]
[4] Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802
Due to asserted error of the Secretary the additional relevant information on which the delegate relied[5] was not before the Authority. Nor did the Authority advert to or consider the existence of this additional relevant information. Neither did the Authority consider writing to the Secretary to obtain the [old] information which had been before the delegate but was not in the review materials.
[5] at CB 115
In short, the applicant submits that the additional information on which the delegate relied[6] in accepting the applicant’s underlying claim concerning accusations made by his uncle, including to the Australian government, were not referred to by the at Authority, nor did it have access to it.
[6] at CB 115
The applicant submits that, as it was material to the delegate’s findings, the absence of consideration of the claim concerning the Australian Government officer interview, and the absence of consideration of the additional information relied upon by the delegate, establishes jurisdictional error.
The delegate indicates that the additional information reviewed by him was relevant and moreover that it was relied upon. The failure to provide these materials to the Authority by the Secretary is said to give rise to jurisdictional error. The failure to even advert to those materials is said to reinforce the materiality of the error.
In failing to consider claims and evidence relied upon and accepted by the delegate, and making thereupon serious adverse credibility findings of untruthfulness against the applicant, the Authority is said to have unreasonably failed to consider exercising the power to invite the applicant to provide information to rebut the concerns raised by the Authority.
Further, the applicant submits that the reasoning used by the Authority to attack the credibility of the applicant with respect to his claims concerning accusations made against him of terrorism and of being homosexual, lacked a logical basis and were not based on probative material. In consequence the factual and credibility findings regarding the accusations of terrorism and homosexuality by his uncle, N, are said to have lacked a logical basis, and were material to the outcome.[7]
[7] CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 at [36]-[40]
Overall, the applicant submits that whichever way the Authority’s decision is looked at, the decision was legally unreasonable, including because of being procedurally unfair.
Unreasonableness in respect of s 473DC
Unreasonableness and illogicality are jurisdictional errors. In Minister for Immigration and Citizenship v Li[8] the High Court stated:
review by a court of the reasonableness of a decision made by another repository of power "is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process"
[8] (2013) 249 CLR 332
Whether a decision-maker is regarded, by reference to the scope and purpose of the statute, as having committed a particular error in reasoning, given disproportionate weight to some factor or reasoned illogically or irrationally, the final conclusion will in each case be that the decision-maker has been unreasonable in a legal sense.
Unreasonableness is relevant to both outcomes and processes, and is fact dependent.[9]
[9] see Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 from [43]
In the context of Part 7AA of the Migration Act given the restrictions on the applicability of procedural fairness obligations as outlined in s 473DA, the question often becomes whether any perceived irregularity may also be classed as unreasonableness.[10]
[10] see Minister for Immigration and Border Protection v DZU16 (2018) 253 FCR 526 at [99], also Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210 at [67], [86], DPI17 from [36]
As to the application of s 473CB and the obtaining or provision of material to the Authority, there are a number of recent relevant authorities. The Secretary must conduct a reasonable search for “potentially relevant” material.[11]
[11] see AUF18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCAFC 222, at [6], [70], [76]-[78]; see also CQR17 v Minister for Immigration and Border Protection [2019] FCAFC 61
The correct question is whether the Secretary’s determination as to the relevance was a reasonable one, and whether there was evident or intelligible justification for the Secretary’s conclusion,[12] not whether the reviewing Court thought the information to be relevant,[13] nor whether the information was objectively relevant.[14]
[12] CQR17 at [9]
[13] CQR17 at [39]
[14] WAGP v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 103 at [64], SZOIN v Minister for Immigration and Citizenship [2011] FCAFC 38 at [54]
The Federal Court, in EMJ17 v Minister for Immigration and Border Protection[15] outlined the principles applying to s 473CB. The applicant relies on that analysis.
[15] [2018] FCA 1462 at [41]
To establish jurisdictional error, the failure to provide the information must have been “material”. The standard of materiality is best explained in Hossain v Minister for Immigration and Border Protection.[16] There, the Court stated:
the threshold of materiality would not ordinarily be met in the event of a failure to comply with a condition if complying with the condition could have made no difference to the decision that was made in the circumstances in which that decision was made.
[16] (2018) 264 CLR 123 at 788 [29]- [31]
The applicant submits that it cannot be reasonably concluded that the additional materials “could have made no difference”.
The applicant contends, noting that the delegate had regard to and relied upon the additional materials[17] and also considered the claim concerning the interview with the ASIO officer, that the provision of the additional materials relied upon and consideration of the claim concerning the interview with the Australian Government officer may have led the Authority to determine that this incident occurred in the way he claimed. This may not, of itself, have led inexorably to the conclusion that the applicant was entitled to protection, but it may have altered the view of the Authority regarding the credit of the applicant, and may have led it to accept other parts of his evidence. In this regard, it must be noted that credibility findings are not “linear”.[18]
[17] at CB 115
[18] see DTN16 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2019] FCA 1525 at [35], [51]
The applicant submits that the additional materials and the unconsidered claim, if considered, would have had to have been considered in the manner outlined in WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs.[19] In other words, it would have been corroborative material, and there would have had to have been considered before any conclusion as to credibility.
[19] [2004] FCAFC 74
The additional materials, the applicant submits, should be considered to be corroborative of the claims of the applicant. In EVS17 v Minister for Immigration and Border Protection[20] the Full Federal Court considered the way in which information might be considered to be material, especially at [50]–[54]. In that analysis, the Full Federal Court noted that information might:
(a)be evidence of consistency and thus corroborative;
(b)be especially important in the context of the Authority, where no hearing takes place;
(c)have led the Authority to get new information under s 473DC;
(d)may have affected credit, and thus the evaluation of the applicant’s other claims.
[20] [2019] FCAFC 20
In respect of materiality, the applicant submits that acceptance of the underlying claims concerning the accusations by the applicant’s uncle, would additionally have led to consideration of the contents of the text message from the applicant’s uncle, which are interpreted in the transcript, being considered for their corroboration of the applicant’s claims concerning his uncle, being imprisoned for six months on suspicion of terrorism.
Further, whether or not the text message was new information, (and the applicant submits it was not) in the context of this matter, the Authority may have wanted to invoke s 473DC(3) and ask for some explanation of the documents. An explanation of them, in particular placing them in proper context, would be new information. This is a methodology suggested by the Court at [51] in EVS17.
One way of doing this may have been by way of invitation to the applicant for an interview in order to enquire to ask questions.
The authorities referred to in the applicant’s submissions are said to be pertinent to the exercise of the discretion to request new information. In DPI17, the Court stated, as follows regarding s 473DC at [38]-[39]:
In CCQ17 at [51], Thawley J helpfully identified the following three essential steps in determining whether an established failure to consider exercising a discretionary power was legally unreasonable:
(a) identify the failure with precision;
(b)examine the terms, scope and purpose of the statutory power which the decision-maker failed to consider; and
(c)evaluate the failure to see whether it has the character of being legally unreasonable, perhaps in lacking a rational foundation or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking in common sense.
Each of those three steps is important but it is the third of those steps which highlights the fact that a mere failure to consider the exercise of the power under s 473DC is insufficient per se to give rise to jurisdictional error.
The applicant submits that, in the factual circumstances of this case, where the Secretary (and the Authority) was, or should have been aware, of the existence of possible evidence of the additional information relied upon by the delegate,[21] it was unreasonable for the Authority, in the context of the unexplained absence of the materials, to fail to seek an explanation or clarification.
[21] at CB 115
The applicant contends that, in the fact-specific context of this matter, where the delegate relied on additional information and claims to make findings of fact and credit in favour of the applicant, and the Authority failed to have regard to that additional information and claims in not only finding against the applicant on those same facts but making adverse findings of untruthfulness in respect of the applicant, it was entirely unreasonable for the Authority to fail to consider getting the old information, or getting new information, in response to its new concerns. The applicant submits that the failure to seek further information was unreasonable, and indicative of jurisdictional error.
In his reply submission, the applicant contends that both the delegate and the Authority misunderstood the claims made by him concerning the issue of his sexual orientation and the threat made by N. He contends that he never denied being gay, while he did deny being bisexual. The applicant makes a close study of the transcript of the interview before the delegate to support that proposition.
The applicant also contends that the Authority misunderstood the cultural context relating to his claims, especially the concept of “zina”, that is, sexual intercourse outside of permitted relationships.
By email to my chambers on 11 October 2021 the Minister’s solicitor complained that the applicant’s reply submissions stray well beyond the leave granted at the trial. That was disputed by the applicant’s solicitor by email the same day. I do not accept that the concept of “zina” or the issue of the applicant’s actual (as opposed to imputed) sexuality bears on the grounds of review the subject of the leave granted at the trial.
Minister’s contentions
The applicant's case essentially turns upon one aspect of his claims, namely, that he had been accused of being a bisexual and a terrorist by his uncle , N, and fears that he will be killed if he were to be (falsely) imputed with either profile on return to Iraq.
This claim was raised for the first time at the applicant’s protection visa interview with the delegate on 14 June 2019, during which he stated that N believed he was bisexual because he had lived with his other uncle, B, for a month after they both moved out of N's home in Perth, and N had found out that B was bisexual.[22] The applicant claimed that N accused them of being terrorists and wanted to see them jailed or killed back in Iraq.[23] To that effect, the applicant showed the delegate two text messages (in Arabic) that he claimed to have received from N, an English translation of which was then read out by the interpreter.[24] The applicant said that he was concerned that N would show these messages to his contacts in the Shi'a militias or spread rumours about his sexual orientation online.[25] He also claimed that he was interviewed by a person who he believed was an ASIO officer in relation to a terrorism allegation against him, which allegation the applicant believed to have been made by N to send him back to Iraq.[26]
[22] CB 96, 110 - 111.
[23] see Transcript of applicant's protection visa interview on 14 June 2019 annexed to the affidavit of Mr Chami sworn on 21 September 2021 (Affidavit) at page 17, lines 863-869
[24] CB 115; Affidavit, page 16, lines 795-848
[25] Affidavit, pages 21-22, lines 1105-1120; Affidavit, page 31, lines 1680-1690
[26] Affidavit, page 18, lines 880-890; Affidavit, page 19, lines 945-954
Although the delegate, unlike the Authority, accepted the applicant's claim that N had accused him of being a homosexual and a terrorist, ultimately, neither the delegate nor the Authority was satisfied that there was any reason why he would be imputed with such profiles on return to Iraq.[27]
[27] CB 117, 138 [29], 142 [45]
By his application as amended, the applicant now seeks to impugn the Authority's decision based on various iterations of error in the process by which it arrived at this finding. The grounds of that application may be distilled into two broad categories of assertion:
(a)first, that it was unreasonable for the Authority to make an adverse credibility finding against the applicant in rejecting his claim regarding the accusations from N, aspects of which it had misunderstood or overlooked; and
(b)secondly, that the Authority's decision was vitiated by the omission of certain documents from the review material which it failed to consider requesting.
The Minister submits that these grounds are misconceived and fail to demonstrate any jurisdictional error in the Authority's decision.
Review material and further document requests
The Minister first addresses the applicant's assertions which specifically relate to the text messages shown and interpreted to the delegate during the applicant's protection visa interview, and any information or documents concerning N's allegation to, and the applicant's interview with, ASIO or a similar Commonwealth agency.
Text messages
There is no said to be no evidence, nor does the applicant now contend, that he sought at any stage to provide to the delegate or the Authority a copy of the text messages that he displayed during his protection visa interview or to challenge the accuracy of how their contents were interpreted on the record. It is said to follow that the text messages themselves were not material within the Secretary's possession or control which was capable of being provided to the Authority under s 473CB(1)(c), nor was this a case where no form of any material such as a photograph shown by an applicant to a ministerial delegate in person was contained in the “review material” provided to the Authority under s 473CB so as to render it materially incomplete.[28]
[28] cf. BVC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 565
Insofar as the text messages were interpreted at the applicant's protection visa interview, an audio recording of which formed part of the “review material” provided to the Authority under s 473CB, it is said to be plain that the information conveyed by those messages was before the delegate at the time of his decision and therefore did not constitute “new information” that the Authority could have obtained under s 473DC(1).[29] The Authority was evidently aware of the contents of the text messages, to which it expressly referred at [20] and [26] of its decision.
[29] see AAZ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 407, [53]-[55] (Allsop CJ)
Terrorism allegation and interview with ASIO
The balance of these grounds rely on the premise that information or documents of a nature as described by the applicant existed at all, not least that they were within the Secretary's possession or control. This premise is said to be without foundation and reflects no more than a bare assertion which presupposes the veracity of the applicant's assertion that he was interviewed in relation to an allegation of terrorism and his suspicions as to N's involvement.
The Minister contends that, absent any evidentiary basis suggesting the existence of such material, the applicant cannot now seek to substantiate the asserted breaches of s 473CB(1)(c) by inverting the onus placed on him to establish jurisdictional error. That onus is not discharged by the applicant's speculation as to the "existence of possible evidence" that was not provided to the Authority.
The Minister further submits that that onus is not discharged insofar as the applicant contends that the possible existence of such evidence meant that the Authority should have considered requesting "an explanation or clarification" as to the information on which the delegate relied. It is well-established that the Authority is not required to give reasons for its non-exercise of any procedural power and the mere absence of such reasons cannot support an inference that the Authority failed to consider exercising that discretion.[30] In the Minister's submission, nothing in the delegate's decision gives rise to any inference that it had relied on additional material that was not before the Authority or which made it legally unreasonable for the Authority to conduct the review on the papers in the ordinary manner provided by s 473DB(1), having not obtained or received any information further to the material given by the Secretary under s 473CB of the Migration Act.[31]
[30] BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29, 39 [16], 46 [40]
[31] CB 131 [2]
The sole basis for the applicant's submissions to the contrary is said to be the delegate's expression of having "also relied on information on departmental systems regarding the applicant's travel movements, change in contact details and other relevant information"[32] in assessing the applicant's claims concerning N.[33] This statement must be read in context. It is clear from the remainder of that passage that the delegate was "willing to accept" that N perceived the applicant to be a homosexual and had made an allegation to the Australian government to have him returned to Iraq, "[g]iven the broad and negative attitudes against homosexuality amongst the Iraqi community" reported in the country information at footnote 16, and that it was the "evidence presented by the applicant" that N attempted to do so by accusing him of terrorism. Critically, the delegate did not make any express finding as to whether the applicant was interviewed by ASIO and, beyond the reference to relevant country information, did not otherwise allude to the existence of any "other relevant information" which specifically corroborated or led to acceptance of the claimed allegation by N.
[32] at CB 115
[33] cf. Wilson v Assistant Minister for Immigration and Border Protection [2017] FCA 1337, [26]
These findings are said to be entirely consistent with the delegate having accepted the applicant's evidence at face value in light of the material before it, relevantly identified as being the departmental file relating to the applicant (which was referred to the Authority) and other country information as footnoted throughout the decision record.[34]
[34] at CB 123
Assessment of applicant's evidence and credibility
In the Minister's submission, the remaining grounds amount to no more than an impermissible challenge to the merits of the Authority's decision.[35] Beyond identifying discrete aspects of the Authority's findings with which he disagrees, the applicant has not advanced any submissions to substantiate his contention that the Authority's reasons for rejecting the terrorist and homosexual imputation claims "lacked a logical basis and were not based on probative material".
[35] cf. Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272 [31]; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 48 [28]
First, there is no indication in the Authority's reasons that it misunderstood the applicant's claim about the accusations from N. It expressly acknowledged at [20] his claim that N's terrorist allegation was "a concocted threat…in response to his suspicions regarding the applicant's sexuality" and recognised at [21] that the applicant feared harm that would be inflicted in Iraq if N circulated the allegations of terrorism or homosexuality.
Secondly, it was open for the Authority to take into account the applicant's evidence of the discussions he claimed to have had or not to have had with his family members as it did at [23]-[25] and the inferences that it drew in assessing such evidence demonstrated an evident and intelligible justification.[36] In particular, the assertions overlook the fact that the applicant at no point claimed to fear harm from his immediate family but that while his "family don't care much", it was his tribe and the militia that he feared as they would kill him if they "found out I'm a gay".[37] Nor did the applicant claim that the accusation of terrorism was simply a "pretext". It is clear from his evidence that he feared N would communicate such accusations to the Shi'a militia and that he would "be killed of accusation of terrorism".[38] The Authority's credibility findings must be viewed in this light and having regard to the applicant's evidence as a whole, which he cannot seek to re-characterise on judicial review to support an argument that different claims arose for consideration.
[36] cf. Li at 364 [68]; Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541, 572-4 [79]-[84]
[37] Affidavit, page 31, lines 1700-1705
[38] Affidavit, page 30, lines 1629-1631
Thirdly, the application does not identify any want of logical connection between the applicant's evidence and the inferences that were drawn by the Authority.[39] The Authority appropriately considered at [26] the applicant's own evidence as to his movements, specifically, that he had originally left Perth due to his fear of N, but then returned for no apparent reason after having lived in Sydney for 12 months without incident. It was open for the Authority to find that these actions were inconsistent with the applicant's claimed problems with N, of which he had made no prior reference in his SHEV application despite his later assertion that they were "worse than the one[s] over there [in Iraq]".[40] The question of N's "standing with the Shia militias" was evidently relevant to its assessment of the applicant's claim which, on his own evidence, was expressly based on a fear that N "will tell them" about the terrorist accusations and be believed because he was "a leader or something".[41] Like the delegate, the Authority found at [28][42] such assertions about N to be unsubstantiated, noting the applicant's evidence that N himself was a Sunni. It was not incumbent on the Authority to seek further information or invite comment from the applicant in respect of these findings[43] nor was it legally unreasonable in the circumstances for the Authority not to do so.
[39] cf. Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, 649 [135]
[40] Affidavit, page 27, lines 1459-1464; see also CB 137 [27]
[41] Affidavit, page 22, lines 1122-1128
[42] cf. CB 116-117
[43] cf. s 5AAA of the Migration Act
Fourthly, Grounds 1A and 1B must fail having regard to the findings that the Authority made in disposing of the applicant's claims. The Authority's rejection of the "corroborative evidence" in the text messages and the applicant's oral evidence that he had been interviewed in relation to an allegation of terrorism are said to be both subsumed within its adverse credibility finding and rejection of the applicant's claim at [29] and [45] that he was "accused of being gay or a terrorist".[44]
[44] cf. Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 352-4 [87]-[97]
There is a very high threshold for demonstrating legal unreasonableness, the scope of which is extremely confined.[45] The Minister submits that the applicant has not met that threshold in this case. Having regard to the above, as well as the other evidentiary deficiencies and inconsistencies on which the Authority based its assessment of credibility, it cannot be said that the Authority's findings were not open to be made on the evidence before it or that its overall decision otherwise fell outside the range of possible lawful outcomes. The Authority was entitled to arrive at a different conclusion on its own assessment of the applicant's evidence and it did so in a way that was consonant with principle.
[45] see eg SZVFW at 551 [11], 564 [52], 586 [135]; ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109 122 [47]
Resolution
I prefer the Minister’s submissions on the grounds of review, in particular the submissions made after the hearing.
As outlined at [5]-[7] of the Minister’s original submissions, the entirety of the applicant's case on judicial review is directed to the findings made by the Authority in rejecting the truthfulness of his evidence concerning problems with his uncle N and the associated claim to fear persecution in Iraq if he were imputed to be homosexual or a terrorist due to N spreading such false accusations about him.
The applicant now seeks to impugn those findings by four discrete "sub-grounds" in Ground 1 of the final iteration of the second further amended application, which broadly assert that the Authority fell into jurisdictional error by reason of:
(a)its failure to consider an integer of the applicant's claim concerning N and other evidence that was purportedly relied on and accepted by the delegate (Ground 1(A));
(b)an "unreasonabl[e]" failure to consider exercising its power under s 473DC of the Migration Act to get “new information” before rejecting the applicant's evidence as untruthful ((Ground 1(B));
(c)illogicality in certain factual findings and aspects of its reasoning (Ground 1(C)); and
(d)a failure by the Secretary to comply with s 473CB(1)(c) of the Migration Act in relation to "other material" that was before the delegate (Ground 1(D)).
These contentions are largely premised on the purported existence of corroborative "additional relevant information" on which the delegate relied in accepting aspects of his claim concerning N and that such information was not contained in the “review material” provided to the Authority under s 473CB. Relevantly, it is not in dispute that the delegate's decision does not specifically identify, nor is there evidence of, any such further information. In this way, the applicant's core proposition remains a bare assertion as to the existence of other unspecified information in respect of which error is alleged.
The applicant's remaining contentions reveal a more fundamental divergence between the parties in relation to the nature of the relevant claims that were raised by the applicant at his protection visa interview, the proper construction of the Authority's reasons for rejecting those claims on the evidence before it, and, critically, the content and application of the relevant legal principles by reference to which these matters are to be assessed on review by a supervising court.
Legal principles and statutory framework
It is well-settled that the lawful exercise of statutory power is subject to an implied condition of reasonableness within the limits set by the subject matter, scope and purpose of the statute.[46] As the applicant points out, legal unreasonableness can be outcome-focused or it can apply to the decision-making process but the inquiry is invariably fact and context dependent.[47]
[46] see Li at 350 [26] (French CJ), 364 [67] (Hayne, Kiefel and Bell JJ), 370-1 [90] (Gageler J); SZVFW at 564 [52] (Gageler J), 572 [79] (Nettle and Gordon JJ)
[47] Singh at 445-7 [42]-[47]
In evaluating whether a decision is legally unreasonable, courts ought to be cautious not to exceed their supervisory role by undertaking a review of the merits or remaking the decision according to their own view of what is reasonable. The question that must be answered is whether the outcome or justification for the conclusion reached was one upon which reasonable minds might differ, such that it falls within the range of possible legally and factually acceptable outcomes.[48] It is not, as the applicant suggests, "whether any perceived irregularity" may be said to be unreasonable notwithstanding any restriction on procedural fairness obligations in the relevant statutory context.
[48] Sse Li at 363 [66] (Hayne, Kiefel and Bell JJ), 375 [105] (Gageler J); Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at 4 [7], 8 [21] (Allsop CJ); Minister for Immigration and Border Protection v Haq (2019) 267 FCR 513 at 522 [37] (Griffiths J)
To discharge his burden of establishing jurisdictional error in this way, the applicant must satisfy the Court that the Authority transgressed the boundaries of its decision-making power under Part 7AA of the Migration Act by making a decision at which no rational or reasonable person could have arrived on the same evidence and applying proper reasoning in the particular circumstances of his case.[49]
[49] see SZVFW at 573-4 [83]-[84] (Nettle and Gordon JJ); SZMDS at 649 [135] (Crennan and Bell JJ); see also Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 at 185 [24]
Relevant provisions of Part 7AA of the Migration Act
The statutory scheme of Part 7AA (viz. s 473CC) imposes a duty on the Authority to undertake a de novo consideration of the merits of the decision that has been referred to it for review: its task is to consider the protection visa application afresh to determine for itself whether the criteria for the grant of the visa have been met, and then to give effect to the outcome of that determination by exercising its power under s 473CC(2) either to affirm or to remit the decision for reconsideration.[50]
[50] see Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at 226 [17] (Gageler, Keane and Nettle JJ)
The Authority's primary obligation in the performance of that duty is to conduct its review on the papers by considering the review material provided to it under s 473CB without accepting or requesting “new information” or interviewing the applicant (viz. s 473DB(1)), subject to the specific powers conferred on it by ss 473DC and 473DD to “get” and “consider” new information.[51] The former section is entirely facultative and must be read in light of the latter, which requires that any new information only be considered in exceptional circumstances and on specified conditions.[52] The Authority is under no obligation to give reasons for the exercise or non-exercise of a procedural power such as s 473DC in its written statement of decision under s 473EA(1) of the Migration Act.[53]
[51] see BVD17 at 38 [14] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ); cf. s 473DA of the Migration Act
[52] see Plaintiff M174 at 228 [23]-[24] (Gageler, Keane and Nettle JJ)
[53] BVD17 at 39 [16], 46 [40]
Section 473EA(1) relevantly requires the Authority to make a written statement that sets out its decision on the review and reasons for that decision which, in turn, must contain its "findings on material questions of fact and refer to the evidence or other material on which those findings were based" (emphasis added).[54] The Authority is not required in its reasons to refer to every piece of evidence or contention advanced by an applicant.[55] Nor does that requirement extend to providing any analysis of the process of analysis adopted in the Minister(ial delegate)'s decision or other matters that the Authority considers to be immaterial to the de novo review it is conducting.[56]
[54] section 25D of the Act Interpretation Act 1901 (Cth); see also BVD17 at 39 [16] citing the equivalent requirements imposed by s 430 in the context of Part 7 of the Migration Act as discussed in Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594
[55] see ETA067 v Republic of Nauru (2018) 92 ALJR 1003 at 1006 [13] (Bell, Keane and Gordon JJ) and the authorities cited therein
[56] Minister for Immigration and Border Protection v EEI17 (2018) 261 FCR 461 at 473-4 [48]
Factual and procedural background
As noted at the outset of this judgment, the applicant arrived in Australia as an unauthorised maritime arrival on 26 January 2013.[57] On 2 May 2017, he lodged an application for a SHEV with the assistance of his migration agent.[58] In his accompanying statement, the applicant principally claimed to fear harm as a Sunni Muslim with familial connections to the Ba'ath Party (of which two of his uncles were members), and that he had decided to leave Iraq on the advice of his father and a Sunni Imam, and because he "remained marginalised and unemployed" and "could not tolerate or challenge the Shiite expansion".[59]
[57] CB 51, 107
[58] CB 18-77
[59] CB 69-71
During his interview with the delegate on 14 June 2019, the applicant raised a further claim relevantly about "a problem with my uncle [N]" and his fears that he would be killed on return to Iraq as a result of N falsely accusing him of being gay or a terrorist.[60] In that regard, the applicant showed the delegate (and the interpreter translated into English)[61] two accusatory text messages which he claimed to have received from N and relevantly stated that:
(a)he and his uncle B lived together for a month after moving out of N's house in Perth (where they initially lived together for four months until N found out B was bisexual) and it was for this reason that N accused the applicant of also being bisexual;[62]
(b)N subsequently sent him the two text messages accusing him and his father of being a terrorist and telling him to go back to Iraq, and that B had "got other messages the same";[63]
(c)(asked why N would accuse him of terrorism) he suspected that N wanted him and B "to be killed or to be jailed" in Iraq and that it was N who had made a terrorism allegation against him (which allegation led to him being approached and interviewed by "a security officer I believe from ASIO") in an attempt to have him sent back to Iraq;[64]
(d)(asked how this would affect him in Iraq) he feared that "all the Shia militias in Iraq, if they see this message on my phone I will be killed straight away" as N would show them, and (asked how his Sunni uncle would have contacts in the Shia militias), "I don't know, probably maybe he got some connection" and "he could be like a leader or something";[65]
(e)he was also concerned that the militias (or even his tribe) would kill him if they thought he was gay and that N "might be putting this on social media, on Facebook for example";[66] and
(f)apart from the two texts, he did not receive any further messages from N nor had anyone else caused him such troubles aside from N, but the "trouble here" that had been caused by N was "probably worse than the one over there" (in Iraq).[67]
[60] see transcript
[61] Affidavit, pages 16-17, lines 795-848
[62] Affidavit, page 19, lines 955-991
[63] Affidavit, page 16, line 787
[64] Affidavit, pages 17-18, lines 866-885; Affidavit, page 19, lines 945-954
[65] Affidavit, pages 21-22, lines 1105-1129
[66] Affidavit, page 31, lines 1680-1705 and line 1730
[67] Affidavit, page 21, T1060-1064; Affidavit, page 22, T1145-1155; Affidavit, page 27, T1460-1464
It is common ground between the parties that the applicant did not seek to provide any further information or documentary evidence to the delegate or to the Authority.
Ultimately, the Authority did not accept on the evidence before it that N had "ever made the claimed accusations or threats" nor that the applicant had "been accused of being gay or a terrorist", finding his claims in that regard to be "contrived" having variously taken into account:[68]
(a)the implausibility of the applicant's evidence and explanations including as to his parents being unaware of his problems with N (despite the purported accusations also made against his father),
(b)that his family would not have noticed the severance of his ties with N shortly after his arrival in Australia (despite N having "contributed substantial funds" to assist the applicant's relocation), and his unexplained decision to move back to Perth despite having resided in Sydney for some 12 months without incident after N's initial threats;
(c)his "vague and unsubstantiated assertions" when "probed for detail" as to N's standing amongst Shia groups in Iraq and the lack of corroborating evidence provided by the applicant as to the purported issues with N despite his claims which otherwise suggested the availability of such evidence, eg from B; and
(d)the belated raising of the claim, which was "particularly significant" given that the applicant described them as being "worse than the problems" mentioned in his SHEV application, which made no reference to any such problems with N or associated fears.
[68] [22]-[29]
Grounds 1(A) and (1B) – “failure to consider”
It is important to note in relation to both of these sub-grounds that the absence of any express reference in the decision to a particular matter, whether substantive or procedural, does not itself give rise to an inference that the matter was not considered by the Authority.[69]
[69] Cf. CTE16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 759 at [66]-[67]
It is also important to note, specifically in relation to Ground 1(A), the distinction between an omission in the Authority's reasons which indicates that it did not consider certain evidence to be material to an applicant's claims, and an omission which indicates that it failed to consider a material matter such as an essential integer of the applicant's claim that would be dispositive of the review.[70] As set out above, findings made by a delegate in support of a decision under s 65 are of no necessary relevance to what the Authority considers to be a material question of fact in its own de novo assessment of whether an applicant is someone in respect of whom Australia has protection obligations under s 36(2) of the Migration Act.
[70] see ETA067 at [14] and the authorities cited therein
Contrary to the applicant’s submission, the representation that the applicant was interviewed by someone he believed to be an ASIO officer was not, nor was it a matter that gave rise to, any distinct "claim" or essential integer of a claim as to why he feared harm in Iraq or otherwise satisfied an essential factual element of his claim for protection.[71] It is clear that the applicant raised the interview as a consequence of an allegation he suspected to have been made by N, in support of his main suspicion that N wanted him to be sent back to Iraq. I accept the Minister's submission that it was open for the Authority to regard this matter as being unnecessary to refer to expressly in its reasons having regard to the material findings of fact which were made on the issue that this matter raised. It is not open, however, for the applicant now to retrospectively elevate the prominence of one aspect of his protection visa interview by characterising it as a clearly articulated claim for protection that was in need of resolution.[72]
[71] cf. EXV17 v Minister for Home Affairs [2018] FCA 1780 at [38]-[39]
[72] cf. AXT19 v Minister for Home Affairs [2020] FCAFC 32 at [56]
Critically, the issue that this aspect of the applicant's evidence raised, being the nature of N's response to the applicant's imputed sexual orientation and the false accusations of terrorism, was addressed by the Authority in its reasons for finding at [29] that it was not satisfied the applicant had been accused of being gay or a terrorist by N or otherwise, nor did it accept the truth of the applicant's representations as a whole. It was this issue that raised a material question of fact which the Authority properly addressed as a matter relevant to whether the applicant would be imputed with membership of the social group(s) that were the subject of his claim to fear harm. Having rejected in a finding of greater generality the factual premise upon which the applicant's contention rests, it was unnecessary for the Authority to make a specific finding as to every aspect of his evidence concerning that rejected factual premise.[73]
[73] see Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 236 FCR 593 at 604-5 [47]
The foundational contention of Ground 1(B) otherwise betrays a misunderstanding of the nature of the de novo review being conducted by the Authority and the limited extent of its powers to get and consider new information under ss 473DC and 473DD of the Migration Act. It is an ordinary and inherent aspect of the de novo review described above that the Authority must consider the review material for itself and that it may assess the applicant's claim differently to the delegate in doing so. As the plurality of the High Court in ABT17 clearly acknowledged:[74]
the Authority is not required to interview a referred applicant merely because credibility is in issue or merely because the Authority comes to a different view as to credibility than did the Delegate.
[74] ABT17 v Minister for Immigration and Border Protection (2020) 94 ALJR 928 at 937 [24] (Kiefel CJ, Bell, Gageler and Keane JJ)
Unlike ABT17, this is not a case where the Authority rejected a central part of the account given by the applicant which the delegate had accepted, wholly or substantially on the basis of the applicant's demeanour or the manner in which his account was given.[75] Nor was the Authority required, as a matter of legal reasonableness or otherwise, to give the applicant an opportunity to provide new information or respond to its reservations about specific aspects of his claims concerning N that were "in part" accepted by the delegate.[76]
[75] cf. ABT17 at 937 [25] (Kiefel CJ, Bell, Gageler and Keane JJ), 947 [69] (Nettle J)
[76] DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551 at 569-70 [72]-[76]
It is also not to the point that any explanation of the material before the delegate would be 'new information' within the meaning of s 473DC(1): that term must be read consistently with the criteria in s 473DD which must be satisfied before the Authority is entitled to consider any new information.[77] In particular, s 473DD(b) requires that such information:[78]
(a)"was not, and could not have been, provided to the [delegate]" at the time of the delegate's decision, and
(b)"is credible personal information which was not previously known" and which may have affected the consideration of the applicant's claims.
[77] see Plaintiff M174 at 228 [24] (Gageler, Keane and Nettle JJ)
[78] emphasis added
The Full Federal Court's obiter remarks at [51] of EVS17 do not displace what was subsequently identified by the High Court in AUS17 as a requirement for the Authority to assess any new information it might obtain from a referred applicant first against s 473DD(b)(i) and (ii), and for it not to take the information into account if neither of these criteria are satisfied.[79]
[79] AUS17 v Minister for Immigration and Border Protection (2020) 94 ALJR 1007 at 1010 [11]
Further, to the extent that Ground 1(B)(i) identifies "further information" that the applicant contends the Authority should have considered requesting under s 473DC, it was the applicant's responsibility "to specify all particulars or his or her claim" and "to provide sufficient evidence to establish the claim" in accordance with s 5AAA(2) of the Migration Act, and the Authority does not have any wide discretionary power (let alone duty) to investigate or inquire into an applicant's claims where he has failed to do so.[80] Nor has the applicant demonstrated how such information is of a nature that would be capable of satisfying the requisite criteria above in any event.
[80] cf. SZGUR at 602 [20]
Ground 1(C) - illogicality and irrationality
The assertions of illogicality and unreasonableness in Ground 1(C) reflect no more than the applicant's emphatic disagreement with the Authority's findings and reasoning within the area of decisional freedom in which reasonable minds might differ.[81] The applicant has not demonstrated that no rational decision-maker could have arrived at the same conclusion as the Authority on these matters or that its findings were not open to be made on the evidence before it.[82]
[81] cf. Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at 175 [34]
[82] cf. SZMDS at 649 [135] (Crennan and Bell JJ)
Ground 1(D) - review material
The general principles concerning s 473CB(1)(c) discussed in the authorities to which the applicant refers are uncontroversial but of no assistance to him in this present case. As noted above, the applicant's failure to advance any evidence as to the precise nature or existence of any "additional relevant material" is fatal to Ground 1(D). Further, the suggestion that it cannot be concluded that such material "could have made no difference" to the Authority's decision relies on the same fallacy underpinning those assertions. The concept of materiality does not arise for consideration merely because the applicant has failed to make out the very assertion of error which is necessary to sustain any such conclusion to that end.
Materiality
It is appropriate briefly to address the proper approach to materiality in light of Ground 1(C) and the applicant's reliance on Hossain, where the plurality of the High Court observed that the threshold of materiality invites an inquiry into whether a decision-maker's non-compliance with a particular condition had any impact on the ultimate decision that was made.[83]
[83] Hossain at 134-135 [30]
Following its decision in Hossain, the High Court relevantly made clear in SZMTA and MZAPC that the applicant in any judicial review application bears the onus of demonstrating that there was a realistic possibility that the decision in fact made could have been different had the asserted error not occurred. This is a question of fact that the applicant must prove on the balance of probabilities by reference to "reasonable conjecture within the parameters set by the historical facts".[84]
[84] see Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at 433 [4], 445 [45]-[46], [48] (Bell, Gageler and Keane JJ); MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441 at 449 [1]-[3], 454 [38]-[39], 458 [60] (Kiefel CJ, Gageler, Keane and Gleeson JJ)
I accept the Minister's submission that the construction of that counterfactual scenario simply does not arise for consideration in the present case, but even if the applicant had made out an asserted error, he has not established that there was a realistic possibility that the Authority's decision could have been different even had the absence of any such error led to acceptance of the factual "substrata" of his claims concerning the accusations from N. It is said that acceptance of the underlying accusations from N would have led to consideration of the text messages as being corroborative of the applicant's claim as to his father's imprisonment for terrorism. Yet, the applicant's claim was that the terrorist accusations had been fabricated as a result of N thinking he was gay. Neither the delegate nor the Authority accepted as credible his belated claim as to his father's imprisonment,[85] and the Authority was relevantly aware of the accusations against his father that had also been made purportedly by N.
[85] CB 114, 116, 135 [16].
One matter should be noted in that regard. In oral argument, it was suggested by the applicant that the Authority had diverged from the delegate in finding at [20] that "there is no evidence or indication that N has in fact communicated these allegations to anyone either in Iraq or online", and that this was "so wrong it's unreasonable". However, despite having been "willing to accept that the applicant was imputed with being a homosexual by [N]" who accused him of being a terrorist, the delegate found more broadly that what was fatal to the applicant's claim was his own evidence that "he is not a homosexual"[86] nor had he "identified any other people either in Australia or Iraq who perceive him to be a homosexual" or who had accused him of being a terrorist, nor had he claimed to have received any more than the two text messages from N, from which it followed that there was no reason the applicant would be imputed with being a homosexual or a terrorist or face harm on return to Iraq as a result.[87] The applicant did not seek to provide any submissions or new information to the Authority in relation to these matters. What this suggests is that the relevant "substrata" of the claims concerning N were not historical facts which, even if proved by the applicant to the requisite standard, could be capable of sustaining the realistic possibility of a successful outcome before the Authority. The applicant has not established otherwise.
[86] I accept from the transcript of the interview with the delegate that the applicant expressly stated that he was not bisexual. He was otherwise somewhat coy about his sexuality
[87] CB 115-117
CONCLUSION
The applicant has failed to establish that the decision of the Authority is affected by jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I so order.
I will hear the parties as to costs.
I certify that the preceding ninety-five (95) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver. Associate:
Dated: 2 November 2021
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