Ecc19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 589
•31 March 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
ECC19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 589
File number(s): SYG 2716 of 2019 Judgment of: JUDGE HUMPHREYS Date of judgment: 31 March 2021 Catchwords: MIGRATION – Immigration Assessment Authority – legal unreasonableness – whether the Authority fell into jurisdictional error – jurisdictional error made out – the application is upheld. Legislation: Migration Act 1958 (Cth), ss 5H, 36(2)(aa), 473DD Cases cited: AKY 17 v Minister for Immigration and Border Protection [2019] FCA 1053.
AUS17 v Minister for Immigration and Border Protection [2020] HCA 37.
BXT17 v Minister for Home Affairs [2021] FCAFC 9.
BVZ16 v Minister for Immigration and Border Protection [2017] FCA 221.
Hossain v Minister for Immigration and Border Protection [2018] HCA 34
Minister for Immigration and Citizenship v Li (2013) 297 ALR 225.
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16.
Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16.
Number of paragraphs: 47 Date of last submission/s: 9 March 2021 Date of hearing: 9 March 2021 Place: Parramatta Counsel for the Applicant: Mr Boncardo Counsel for the Respondents: Mr Liu
Table of Corrections 7 April 2021 On page 1 under ‘date of Judgment’ the date “26 March 2021” has been replaced with 31 March 2021. 9 April 2021 In paragraph 1, the word “Iran” has been replaced with Iraq. 9 April 2021 In paragraph 1, the word “authorised” has been replaced with unauthorised. 9 April 2021 Paragraph number on coversheet and in end-certification changed from “48” to “47” ORDERS
SYG 2716 of 2019 BETWEEN: ECC19
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE HUMPHREYS
DATE OF ORDER:
31 MARCH 2021
THE COURT ORDERS THAT:
1.The application is upheld.
2.An order that the decision of the Immigration Assessment Authority be quashed.
3.A writ of mandamus directed to the Immigration Assessment Authority requiring it to determine the applicant’s application according to law.
4.The first respondent is to pay the applicant’s costs fixed in the amount of $7,467.00.
REASONS FOR JUDGMENT
JUDGE HUMPHREYS
The applicant is a citizen of Iraq. The applicant arrived in Australia as an unauthorised maritime arrival on 25 July 2013. On 2 March 2017, the applicant applied for a Protection visa. On 2 September 2019, a delegate of the Minister for Immigration (“the delegate”) refused to grant the visa.
The applicant was referred to the Immigration Assessment Authority (“the Authority”) for merits review. In a decision dated 4 October 2019, the Authority affirmed the decision not to grant the applicant a protection visa.
The applicant now seeks judicial review of the Authority’s decision.
THE IMMIGRATION ASSESSMENT AUTHORITY’S DECISION
After setting out the relevant background, the Authority deals, at paragraphs 3 through to 8 of its decision, with the information before it.
At paragraph 4 of the Authority’s decision, a letter from the applicant’s wife is rejected on the basis that the Authority is not satisfied that the information contained in the letter could not have been provided to the delegate, nor that it is credible personal information. The Authority states that as neither requirement of s 473DD(b) of the Migration Act 1958 (Cth) (“the Act”), is met, it does not have regard to the letter.
Paragraph 5 of the Authority’s decision deals with a psychologist’s report in relation to the applicant’s wife. The report post-dates the delegate’s decision, however, the Authority notes that no explanation has been provided as to why the material could not have been provided earlier. The Authority noted that the report contained credible personal information, however, how the report may affect consideration of the applicant’s claims were not made clear. The Authority was not satisfied that there are exceptional circumstances to justify considering the report.
Paragraph 6 of the Authority’s decision deals with an updated report from a psychologist in relation to the applicant. Two previous reports were before the delegate. The Authority states as follows:
Other than this, (referring to the date of his appointment) there is little information that was not included in the comprehensive reports of 14 May 2019 and 25 June 2019, which are before me. I do not consider that this report materially adds to the applicant’s case. I am not satisfied that there are exceptional circumstances which justify considering this new information and have not had regard to it.
Paragraphs 7 and 8 of the Authority’s decision deal with copies of the biodata of the passports of the applicant’s mother, his three brothers, his brother W’s wife and their 3 children aged 13 and 8 (twins). Various pages in the adult’s passports contain visas bearing the stamp of the Islamic Republic of Iran. The decision record stated that the applicant provided these documents to refute the finding of the delegate ‘that I (the applicant) am a liar and my entire family are in Iraq”.
At paragraph 8 of the Authority’s decision, the following appears:
The applicant has not indicated when the documents at (e) and (f) [being the passports referred to above] came into his possession or given any information on why they could not have been provided to the delegate. In relation to the latter, the applicant claimed at the PV interview that he had no contact with any members of his family since mid-2017 and did not have their phone numbers. It would appear from the provision of these document shortly after the delegate’s decision that he may in fact be in contact with his family members. I note that all of the passports were issued in Baghdad. I am not of the view that the present whereabouts of the applicant’s mother and brothers will directly impact on the applicant’s claim for protection. For these reasons I am not satisfied that there are exceptional circumstances which justify considering the passport information as listed at (e) and (f). I have not had regard to this material.
The balance of the Authority’s decision consists of an analysis of the applicant’s claims. Paragraphs 11 through to 16 of the Authority’s decision deal with the history given by the applicant as to his movements from 1991 until his departure for Australia in 2012. The Authority noted that there were some inconsistencies in the applicant’s claims. The Authority was not satisfied that the applicant had resided in Iran (aside for a five month period) between the ages of 11 of 32. The Authority had considerable credibility concerns as to the applicant’s account. The Authority concluded that the applicant returned from Iran to Iraq after the fall of the Saddam regime and remained a resident of Iraq until his departure for Australia in 2013.
At paragraph 19 of its decision, the Authority considered the explanation of the applicant in regards to the inconsistencies in his evidence due to the applicant’s claimed mental health issues. The Authority concluded that, in view of the applicant’s lack of credibility, it did not accept that numerous variations in his evidence can be attributed to the effects of his current medication.
At paragraph 25 of its decision, the Authority concluded that the applicant was a resident of Baghdad from 2004 to 2013. The Authority, at paragraph 26 of its decision, then went on to consider any risk to the applicant if he were to return to Baghdad. The Authority was not satisfied, noting the combined effects of the sectarian violence prevalent in Iraq, including the current influence of ISIS/Daesh and Sunni insurgent groups, that the applicant’s risk of harm was one that rises to being a real chance. Further, even though the Authority accepted that the applicant suffered from anxiety and depression, and was receiving treatment for those medical conditions, the Authority was not satisfied that he would face difficulties arising from his mental health issues as a result of systemic discriminatory conduct on the part of Iraqi authorities.
At paragraph 33 of its decision, while accepting the applicant may face societal discrimination or stigmatisation, the Authority was not satisfied that there was a real chance that it would involve acts or omissions that would threaten the applicant’s life or liberty or would involve, or otherwise, lead to significant physical harm or ill-treatment. In so doing, the Authority noted that it was satisfied that the applicant’s sister lived in Baghdad and that she would be able to provide family support to the applicant if needed.
The Authority concluded that it was not satisfied that the applicant faced a real chance of suffering serious harm if he were to return to Iraq. Accordingly the Authority found the applicant did not meet the requirements of the definition of a refugee in s 5H(1) of the Act.
Paragraphs 36 through to 40 of the Authority’s decision deal with complimentary protection considerations. For the same reasons, the Authority was not satisfied that the applicant would suffer a real risk of significant harm if he were to be returned. Accordingly, the Authority concluded that the applicant did not meet the requirements for complimentary protection under s 36(2)(aa) of the Act.
GROUNDS OF JUDICIAL REVIEW
The grounds relied upon by the applicant are set out in an Amended Application filed with the Court on 28 July 2020. They are as follows:
Ground One
The Immigration Assessment Authority’s (Authority) decision is affected by jurisdictional error as the Authority failed to carry out its statutory task under section 473DD of the Migration Act 1958 (Act) because it failed to have regard to all the relevant circumstances in considering whether ‘exceptional circumstances’ permitted it to consider ‘new information’.
Particulars:
1.1 On 25 September 2019, the Applicant provided to the Authority documents in support of his claim, including copies of extracts from the passports of his mother, two brothers and his sister-in-law (Passport Information).
1.2 The Authority determined it was not satisfied there were ‘exceptional circumstances’ which justified it considering the passport information (at [8]). It did not have regard to the information.
1.3 In reasoning it was not satisfied there were ‘exceptional circumstances’, the Authority committed jurisdictional error by adopting and applying an unduly narrow interpretation of the term ‘exceptional circumstances’ and failing to consider all relevant circumstances, including:
a.the matters specified in sections 473DD(b)(i) and 473DD(b)(ii) of the Act;
b.the fact that the Passport Information consisted of official documents;
c.the relevance of the Passport Information, which went beyond merely the current whereabouts of the Applicant’s family;
d.whether the Applicant might not have anticipated that the Delegate would have determinative doubts about whether he resided in Iran with his family immediately prior to seeking asylum in Australia;
e.the importance and/or significance of the Passport Information to the Authority’s assessment of the Applicant’s claims to have returned to Iran with his family in 2005 following the targeted murder of his uncle and, later, his father;
f.the importance of the whereabouts of the Applicant’s family to an assessment of the credibility of the Applicant’s claims and the substantive basis of those claims.
Ground 2
The Authority’s decision is affected by jurisdictional error as the Authority failed to carry out its statutory task under section 473DD of the Act, because its consideration of whether there were ‘exceptional circumstances’ to permit it to consider ‘new information’, was not legally reasonable.
Particulars
2.1The applicant refers to and repeats the particulars to ground 1, above.
2.2The Authority was required to undertake the evaluative assessment under section 473DD of the Act within the bounds of legal reasonableness.
2.3The reasoning that the Passport Information would not directly impact upon the Applicant’s claim (at [8]) was legally unreasonable, in circumstances including that:
a.a key finding of both the Delegate and the Authority was that the applicant had not returned to Iraq with his family in 2005(at [14]-[16];
b.the Applicant’s seeking refuge in Iran after the targeted murder of his uncle and, later, father was central to his claim;
c.the Authority’s findings as to the Applicant’s credibility and the whereabouts of his family were substantive reasons in its decision(at [14]-[19]);
d.the Authority nonetheless accepted that the Passport Information may be relevant (section 473DC(1)(b) of the Act); and
e.the Passport Information would rationally affect the assessment of whether the Applicant had returned to Iran with his family after the death of his uncle and his credibility.
2.4. Further, it was not legally reasonable for the Authority to limit its consideration to the direct impact of the Passport Information.
Ground 3
The Authority’s decision is affected by jurisdictional error as the Authority failed to carry out its statutory task under Part 7AA of the Act, because it failed to give meaningful consideration to, and actively intellectually engage with, the Applicant’s claims or integers of those claims.
Particulars:
3.1In exercising its review function under Part 7AA, the Authority was required to give their full consideration to and actively intellectually engage with, the Applicant’s claims or integers of those claims.
3.2The applicant advanced clearly articulated and substantial claims to the effect that:
a. he is at risk of harm of his cumulative profile;
b. he is at risk of harm on account of his perceived Iranian connections;
c. he is at risk of harm from Ba’athists who continue to remain active and influential in Iraqi government and the military;
d. he is at risk of harm from Shi’a militia as a result of being perceived as the son of a ‘turncoat’ who fought against them; and
e. he had already suffered physical and psychological harm at the hands of Shi’a militia.
3.3The Authority was required to give meaningful consideration to these matters, but failed to do so.
Ground 4
The Authority’s decision is affected by jurisdictional error as it failed to carry out its statutory task under Part 7AA of the Act, because it failed to have proper regard to the Applicant’s personal attributes and characteristics that would render him vulnerable or more vulnerable to any experience of harm, and engaged in irrational and logical reasoning in doing so.
Particulars:
4.1in assessing whether the Applicant was a person in respect of whom Australia had protection obligations, the Authority accepted that he may face discrimination, stigmatisation, and/or name-calling on account of his psychological disability and Iranian background (at [25], [32]-[33], [38]).
4.2There was evidence before the Authority of personal characteristics and attributes of the Applicant that would render him particularly vulnerable to any experience of harm, including that:
a.the Applicant had multiple significant mental illnesses or frailties;
b.the Applicant had been subject to severe mistreatment and threats on account of his Iranian background or perceived links to Iran; and
c.the Applicant had a subjective fear of being harmed on account of his Iranian background and a subjective belief that his father and uncle were murdered on account of their links to Iran.
4.3 The Authority was required to evaluate the risk of harm to the Applicant taking into account the particular attributes of the Applicant, but failed to do so.
4.4 Further, the Authority discounted the harm which the Applicant might suffer from discrimination on the basis that he would receive support from his sister (at [33]).
4.5 The Authority’s reasoning in this regard was irrational and illogical, and made without any probative basis.
Ground 5
Not pressed at Hearing.
Ground 6
The Authority’s decision is affected by jurisdictional error as it failed to carry out its statutory task under Part 7AA of the Act, because its rejection of the Applicant as a credible witness was legally unreasonable because it relied upon matters which were either (when properly analysed) not inconsistencies or were insufficiently significant to justify the Authority’s findings, and it did not have regard to the circumstances in which the inconsistencies, or purported inconsistencies, arose.
Particulars:
6.1The Authority was not satisfied the Applicant was a credible witness, having regard to inconsistencies, or purported inconsistencies in his evidence.
6.2The Authority was required to undertake this assessment within the bounds of legal reasonableness.
6.3The assessment of the Applicant as not being credible, and rejecting central elements of his claim on this basis, was legally unreasonable, in circumstances including that:
a. Some of the ‘inconsistencies’ to which the Authority referred were in fact not inconsistencies;
b. The authority had no regard to either:
i.The circumstances in which the ‘inconsistencies’ arose; or
ii.The relevance of the ‘inconsistencies’ could not be provided to the claim as a whole
in assessing the significance of the ‘inconsistencies’ or weight to attach them; and
c. properly analysed, the ‘inconsistencies’ could not provide a basis for rejecting central elements of the Applicant’s claim.
Given the above grounds, the Court made consent Orders allowing each of the parties to make supplemental submissions in the light of AUS17 v Minister for Immigration and Border Protection [2020] HCA 37 (“AUS17”) which was handed down following the lodgement of the Initiating Application with the Court.
CONSIDERATION
Grounds one and two of the Amended Application centre around the decision of the Authority not to consider the updated psychologist report and the passports of the applicant’s family. It is convenient to deal with the issue in relation to the compliance by the Authority with AUS17 first. No criticism can be made of the Authority for failing to comply with AUS17, as the Authority made its decision prior to AUS17 being published.
On behalf of the applicant, it was submitted that the Authority failed to comply with s 473DD of the Act as articulated by the High Court in AUS17 as regards to the psychological report. In relation to the passport information, after considering it in general terms, the Authority stated that it did not consider that the present whereabouts of the applicant’s mother and brothers would directly impact upon his claims for protection before finding exceptional circumstances did not exist. This consideration does not comply with AUS17.
Counsel for the first respondent conceded that the Authority did not set out it’s consideration of the psychological report in the way explained or required by AUS17. It was submitted that the error does not go to jurisdiction as it was not material. It was submitted that the information is not material in the sense of that articulated in Hossain v Minister for Immigration and Border Protection [2018] HCA 34 at [29-31]. The test being, absent the error, could it realistically have resulted in a different decision. The Court was also referred to BXT17 v Minister for Home Affairs [2021] FCAFC 9 at [146] (“BXT17”), where it was held that the principles of materiality apply to s 473DD of the Act and the question is whether any non-compliance with s 473DD of the Act operated “to deny the appellant the possibility of a successful outcome”.
It was submitted by counsel for the first respondent in relation to the passport material that, although the Authority did not refer to s 473DD(b) of the Act in express terms, the assessment of the passport information at paragraphs 7 to 8 of the Authority’s decision indicates that it considered those matters in substance, and that it did so prior to concluding that there were not exceptional circumstances. Further, the material was not material which would impact on the applicant’s claims, as the Authority found that they were not of the view that “the present whereabouts of the applicant’s mother and brothers will directly impact on the applicant’s claim for protection”. It was submitted by counsel for the first respondent that the applicant had not discharged the onus of showing how the passport information could have realistically changed the Authority’s relevant findings and thus, the outcome of the review
In the Court’s view, there were numerous adverse credibility findings that related directly to the residence of the applicant’s family. The delegate, at CB198, did not accept that the applicant returned to Iran in 2005, finding that he was not truthful regarding his residence in Iran. The delegate did not accept that the applicant had ever returned to Iraq since 2005, bar a single visit in 2010.
At CB201, the delegate stated “I am further convinced that he (the applicant) has not been truthful about the whereabouts of his family members, who I am of the view, all reside in Baghdad, Iraq. Therefore, I do not accept the applicant’s claim he has no relatives remaining in Iraq or that his family chooses to live as refugees in Iran despite having strong ties, including documents of identity, to Iraq.”
The credibility doubts of the delegate extend further in that, at CB202, the delegate found that the psychological report detailing the applicant’s mental health issues was based solely on the applicant’s narrative to the psychologist and, as such, the delegate did not consider it to be corroborative of the applicant’s claims. By inference, that report was not reliable as the delegate had earlier found that the applicant not to be truthful. Further, the fact that the delegate found that the applicant’s family all reside in Baghdad may have impacted on the assessment of the risk the applicant faced upon his return, given that the delegate found that the applicant would return there. The above context needs to be considered in relation to the Authority’s findings.
At paragraph 16 of its decision, the Authority concluded that it was not satisfied as to the applicant’s credibility and found that the applicant returned to Iraq after the fall of the Saddam regime in 2004 and remained a resident of Iraq until he departed for Australia.
At paragraph 25 of its decision, the Authority found that the applicant resided in Iran from 1991 to 2004, but that the applicant resided in Iraq after that. At paragraph 33 of its decision, the Authority found that the applicant’s sister, Soumiyeh, resides in Baghdad and would be able to provide him with family support if he was returned to Iraq.
This last finding stands in contrast with the earlier finding of the Authority, at paragraph 8 of its decision, in considering the admittance of the contested passports and the view that the present whereabouts of the applicant’s mother and brother’s would directly impact on the applicant’s claim for protection. If the extended family were living in Baghdad, as the delegate found, then the claims of the applicant would have been diminished as regards the availability of family support. Considerable more family support would have been available.
The Court is satisfied that the updated psychological report was not considered as it should have been, pursuant to the requirements of AUS17. That said, the Court is not satisfied that had the report been considered it would have made a difference: (see BXT17). There was nothing in the report which was not within the previous psychological reports by the same psychologist that were before the Authority. No jurisdictional error exists as regards the exclusion of the updated psychological report.
The Court is of the view that a fair reading of paragraphs 7 to 8 of the Authority’s decision does not indicate that the Authority performed its consideration of the new information provided, as regards the passports, as required by AUS17. It is difficult to accept, from a reading of the relevant paragraphs, that the Authority clearly considered both limbs of s 473DD(b)(i) and (ii) of the Act prior to finding that there were no exceptional circumstances. As pointed out by Counsel for the first respondent, the Authority clearly understood that the new information was being provided as a rebuttal to the finding by the delegate that the applicant’s family all resided in Iraq, not Iran.
While the Authority has doubts as to why the information could not have been provided earlier, given its provision shortly after the delegate’s decision, it makes no findings in relation to either s 473DD(b)(i) or (ii) of the Act. At best, there is a general discussion of the nature of the information before the Authority finds that there are not exceptional circumstances. There is no explicit rejection of the information under either s 473DD(b)(i) or (ii) of the Act to inform the Authority as to the existence of exceptional circumstances.
The Court is further satisfied that the passports could have made a difference to the decision that was ultimately made. There were clear adverse credibility findings by, initially the delegate, and then the Authority which centred on the claims that the applicant remained in Iraq until 2013 and that his family were also there. The passports were evidence that this was not the case. This was central to the applicant’s case.
Accordingly, the Court is satisfied there is jurisdictional error as regards the consideration of the new passport material in terms of AUS17. This finding is enough for the Court to grant the relief sought.
While it is not necessary for the Court to consider the other grounds of judicial review agitated by the applicant, if the Court is wrong as to its conclusions above as to ASU17, given grounds 1 and 2 go to the operation of s 473DD of the Act as well, it is appropriate to also consider them.
Ground 1 broadly alleges that the Authority failed to properly consider whether ‘exceptional circumstances’ existed under s 473DD of the Act to admit the new information. Ground 2 alleges the decision not to find ‘exceptional circumstances’ was legally unreasonable.
The term ‘exceptional circumstances’ is not defined by the Act. The applicant submits that the term is not one of art, and is to be given its ordinary meaning: see: (Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 at [24]). Circumstances may be exceptional if they can be reasonably be seen to produce a situation that is out of the ordinary course, unusual or uncommon: (see AKY 17 v Minister for Immigration and Border Protection [2019] FCA 1053 at [35] and [38] (“AKY17”)). Circumstances need not, however, be unique, unprecedented or rare to be exceptional: (see AKY17 at [61]). In assessing whether or not there are exceptional circumstances, the Authority is obliged to consider all of the relevant information. An assessment of whether there are exceptional circumstances justifying consideration of new material therefore requires an assessment of the significance of the new information in the light of the applicant’s personal circumstances and the way in which the applicant’s earlier claims have been advanced: (see BVZ16 v Minister for Immigration and Border Protection [2017] FCA 221 at [34]).
On behalf of the applicant, it was submitted that the Authority did not make a proper assessment of the information as it did not appreciate that the passports contained residence permits showing the applicant’s family members were historically permitted to reside in Iran, which supported the applicant’s claim that they in fact resided in Iran. The passport information consisted of official documents which went beyond merely the current whereabouts of the applicant’s family and supported the applicant’s claim about his family’s relocation to Iran due to issues they faced in Iraq during the period of 2004 to 2013.
In relation to ground 2, it was submitted that the Authority fell into legal unreasonableness as it found the passport information would “not directly impact” upon the applicant’s claims: (see the Authority’s decision reasons at paragraph 8). This was in circumstances where a key finding at both the delegate, and the Authority, was that the applicant had not returned to Iran with his family in 2005, together with the Authority’s findings as to the applicant’s credibility in circumstances where the location of his extended family were substantive reasons for its decision.
On behalf of the first respondent, it is submitted in relation to ground 1, that it cannot succeed at a factual level because the Authority did “appreciate that the passports contained residence permits showing the applicant’s family members were permitted to reside in Iran”. The Authority said, at paragraph 8 of its decision that it was of the view that the present whereabouts of the applicant’s mother and family would not directly impact upon his claim for protection. In these circumstances, it cannot be said that the material was not addressed and the Authority was entitled to find that there were not exceptional circumstances. In any event, it is submitted that even if the above is wrong, the error was not material to the outcome of the decision.
In relation to ground 2, it is submitted that as the Authority found the material would not “directly impact upon the applicant’s claim for protection” it cannot be said that the decision not to find exceptional circumstances was legally unreasonable illogical or irrational. If a decision-maker reaches a finding which reasonable minds could differ, there is no illogicality irrationality or unreasonableness: (see Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 at [131] and [135]).
In considering the passport information at paragraph 8 of its decision, the Authority notes that the applicant has not indicated when the documents came into his possession or given any information on why they could not have been provided to the delegate. The Authority goes on to note that it would appear that, from the provision of these documents shortly after the delegates decision, the applicant may in fact have been in contact with his family members when the Authority previously stated he was not. Critically, the Authority concludes that it is not of the view that the present whereabouts of the applicant’s mother and brothers will impact on his claims for protection.
In the Court’s view, this mischaracterises why the information was provided. The delegate made clear adverse credit findings in respect of the applicant including, at CB 201, finding “I am further convinced that he has not been truthful about the whereabouts of his family members, who I am of the view, all reside in Iraq”. It was in this context that the passport information was provided, in order to rebut the adverse credit finding made by the delegate.
The applicant’s credibility regarding his movements between Iran and Iraq in the period of 2004 to 2013 was a matter that concerned the Authority. At paragraph 16 of its decision, the Authority found that “I am not satisfied as to the applicant’s credibility. I conclude that he returned from Iran to Iraq after the fall of the Saddam regime and remained a resident of Iraq until his departure for Australia in 2013”.
In the Court’s view, the passports were provided, not as evidence of the current whereabouts of the applicant’s mother and brothers, but rather, as rebuttal evidence of the adverse credibility finding made firstly by the delegate, and affirmed by the Authority. While the Authority referred to this in its decision record, it does not appear to have gone on further to consider this aspect of the information and what it was said to show. It cannot be said that the consideration of this material may not have made a difference, as it went substantially towards rebutting the adverse credit finding. In these circumstances, it is difficult to understand how there could not be exceptional circumstances as to the consideration of the information. Ground 1 is made out.
In relation to ground 2, the Court accepts that the standard for legal unreasonableness is ‘stringent’ and will only arise in rare cases. Unreasonableness is not to be used as a means for challenging decisions on the basis that a Court disagrees with the consideration of matters of the evaluative judgement as made by the decision-maker: (see Minister for Immigration and Citizenship v Li (2013) 297 ALR 225 at [30] and [113]).
Given the significance of the adverse credit finding and the overall impact this had on the Authority’s findings, the Court does not consider that the refusal to find exceptional circumstances in relation to the passport information is a matter upon which reasonable minds might differ. This material went directly to a claim made by the applicant as to his residence in Iran until he left for Australia. As indicated above, it is a mischaracterisation by the Authority to state that the material only goes to the current whereabouts of the applicant’s family.
The Court is satisfied in the unique circumstances of this case, the failure of the Authority to find exceptional circumstances to admit the information was legally unreasonable, as the evaluative assessment as to the relevance of information and the circumstances in which it was being proffered was flawed. Ground 2 is also made out.
CONCLUSION
It is not necessary for the Court to deal with the remaining grounds of judicial review, the Application is upheld and the matter is remitted to the Authority for further consideration according to law.
I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Associate:
Dated: 29 March 2021
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