Ejk18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs - [2021] FedCFamC2G 50

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EJK18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 50

File number(s): MLG 2549 of 2018

Judgment of: JUDGE A KELLY

Date of judgment: 16 September 2021

Catchwords:
MIGRATION – Fast track review – whether Authority had misconstrued or misapplied s 473DD of Migration Act 1958 (Cth) – whether new information – whether Authority failed properly to exercise specific power conferred by s 473DD and thereby failed in exercise of procedural duty in deciding whether to consider additional information in the conduct of de novo fast track review – where parties make further submissions following delivery of AUS17 v Minister for Immigration and Border Protection (2020) 94 ALJR 1007 – whether error material – applicable principles – application dismissed.

PRACTICE & PROCEDURE – Fast track review – where applicants seek to further amend ground of review following delivery of AUS17 v Minister for Immigration and Border Protection (2020) 94 ALJR 1007 – where amendment is in part appropriate – where Court is entitled to insist on judicial review that parties are confined to the ground advanced – where proposed amendment seeks to expand review on an issue not raised at any earlier time – where no explanation for failure to raise earlier – where Court entitled to infer amended ground represented the basis on which judicial review was to be sought – application to further amend refused.

Legislation: Migration Act 1958 (Cth), ss 36, 65, 473CA, 473CB, 473CC, 473DA, 473DB, 473DC, 473DD, 473DE, 473DF, 473EA, 473FA, 473FB

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
AGK17 v Minister for Immigration and Border Protection [2020] FCA 668
Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473
AQU17 v Minister for Immigration and Border Protection (2018) 162 ALD 442
AUH17 v Minister for Immigration and Border Protection [2018] FCA 388
AUS17 v Minister for Immigration and Border Protection (2020) 94 ALJR 1007
AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503
BDF17 v Minister for Immigration and Border Protection [2018] FCCA 2095
BNB17 v Minister for Immigration and Border Protection [2020] FCA 304
BVD17 v Minister for Immigration and Border Protection (2018) 261 FCR 35
BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29
BVZ16 v Minister for Immigration and Border Protection (2017) 254 FCR 221
BXT17 v Minister for Home Affairs [2021] FCAFC 9
BYA17 v Minister for Immigration and Border Protection (2019) 269 FCR 94
CAQ17 v Minister for Immigration and Border Protection (2019) 274 FCR 477
CCR18 v Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 9
Checuti v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 98
CPP17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs(No 2) [2021] FCA 199
CPX16 v Minister for Immigration and Border Protection [2019] FCA 1164
CXB20 v Minister for Home Affairs [2020] FCA 1667
DBE16 v Minister for Immigration and Border Protection [2017] FCA 942
DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551
DPI17 v Minister for Home Affairs (2019) 269 FCR 134
DVO16 v Minister for Immigration and Border Protection (2021) 95 ALJR 375
EBP19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 332
ELQ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 27
EMJ17 v Minister for Immigration and Border Protection [2018] FCA 1462
Minister for Home Affairs v DUA16 (2020) 95 ALJR 54
Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594
Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111
Minister for Immigration and Border Protection v CQW17 (2018) 264 FCR 249
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AWT19 [2021] FCAFC 58
MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1
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

Division: Division 2 General Federal Law

Number of paragraphs: 158

Date of last submission: 17 May 2021

Date of hearing: 13 August 2020

Place: Melbourne

Counsel for the Applicants: Mr A. White

Solicitor for the Applicants: A.R. Law Services

Counsel for the Respondents: Mr J. Barrington

Solicitor for the Respondents: Mills Oakley

ORDERS

MLG 2549 of 2018

BETWEEN:
EJK18

First Applicant

EJL18

Second Applicant

EJM18 (and others named in the Schedule)

Third Applicant

AND:
MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:

JUDGE A KELLY

DATE OF ORDER:

16 SEPTEMBER 2021

THE COURT ORDERS THAT:
1.Pursuant to ss 202-203 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), direct that the parties be allowed to appear and to make submissions before the Court by video and audio link.
2.The name of the first respondent be amended in the title of the proceeding to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
3.The application for leave to further amend the amended application dated 16 July 2020 by reference to the matters addressed at [9]-[10] in the reasons of the second respondent dated 16 August 2018 be refused.
4.The application for leave to further amend the amended application dated 16 July 2020 by substituting “s 473DD” for “s 473DD(a)” is granted.
5.The further amended application be dismissed.
6.The first and second applicants pay the costs of the first respondent fixed in the sum of $7,467.

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 A KELLY
Introduction

By their further amended application, the applicants seek judicial review of a decision of the Immigration Assessment Authority (Authority) made on 16 August 2018 affirming a decision of a delegate of the first respondent (Minister) made on 18 April 2018 refusing to grant them a Safe Haven Enterprise Visa (SHEV) pursuant to s 65 of the Migration Act 1958 (Act).
Counsel for the applicants abandoned the original grounds of review and advanced one ground of review, being that the Authority had misconstrued or misapplied s 473DD(a) of the Act respecting its decision not to admit what was said to be new information for consideration on the fast track de novo review. Following the delivery of judgment in AUS17 v Minister for Immigration and Border Protection (2020) 94 ALJR 1007; 94 ALJR 1007, [2]-[13] (AUS17), the applicants sought leave to further amend their application so as to expand the ground of jurisdictional error. The amended ground had been confined to an alleged misapplication of par 473DD(a) of the Act. Following AUS17, leave was sought to allege error grounded upon a failure to apply properly each of pars 473DD(a) and (b)(i)-(ii). While the amended ground had been confined to a complaint respecting the matters in [7]-[8] of the reasons of the Authority (Reasons), leave was also sought to expand the scope of the review to impugn the Authority’s exercise of power under s 473DD in relation to the matters in [9]-[10] of the Reasons. Leave will be granted limited to the complaint respecting s 473DD.
The further amended application should be dismissed. While it was accepted the Authority had misconstrued or misapplied par s 473DD, the error was not material. The Authority regarded a new claim, being that the second applicant held a well-founded fear of persecution as a result of having attended pro-Ahwazi meetings in Melbourne on the basis that he would be identified from two video clips downloaded from the Facebook page of Methaq Abdullah, a person said to be a political and media activist, as speculative. Upon that finding, there was not a realistic possibility the second applicant could have achieved a different result upon the question whether the Authority might have been satisfied of exceptional circumstances and then considered such information for the purposes of its conduct of a fast track review.
Background
The applicants, a family comprising two adults and their four children, are citizens of Iran and of Ahwazi Arab ethnicity. The applicants first flew from Ahwaz to Tehran by Iran Air and, using the same airline, from Tehran to Malaysia before flying to Indonesia where they travelled by boat from Jakarta, arriving in May 2013 at Christmas Island as irregular maritime arrivals.
On 23 November 2016, the applicants made a combined application for the SHEV, the children relying upon their parents’ claims for protection. Although the SHEV application indicates that there are five children, born in the period 1996-2009, the eldest child is now married to an Iranian who is a permanent Australian resident.
A migration agent assisted the first and second applicants in making their claims for protection. They made statements dated 21 November 2016 and 14 February 2017 respectively. As material to this application were their respective claims to fear harm; in the case of:
a)the first applicant, by reason of “imputed political opinions as a person [who] has expressed views against the Iranian state religion” and the “Iranian government” and as a member of a “social group as a person who opposes the Iranian government and has been targeted by Iranian intelligence because of my families ties to Arab rights activists in Iran.” The first applicant stated that from 1982 a number of her relatives, including her father, were arrested and executed or imprisoned for extended periods owing to their political activism on behalf of the Ahwazi Arab minority in Iran;
b)the second applicant, by reason of an “imputed political opinion as a person [who] has expressed views against the Iranian state.” The second applicant claimed to fear harm in Iran on the basis of his participation in pro-Ahwazi Arab activities since arriving in Australia (sur place claims).
The first applicant’s claims to protection are not relevant to this judicial review.
In 2014, the second applicant participated in a protest held outside the Iranian Embassy in Canberra that was organised by the Australian Ahwazi community. He believed the Iranian authorities were aware of his attendance at the protest because of the presence of video cameras outside the embassy. He also said that a video of the protest was posted on YouTube.
On 27 November 2017, the first and second applicant attended an interview with a delegate of the Minister. For the purposes of that interview they were advised of the importance of providing the particulars of their claims for protection including by the provision of sufficient evidence to establish those claims. Amongst the concerns that were put to the applicants during the interview was that, while in Iran, neither of them had a profile that would place them at risk if they returned to Iran. Relevantly to the ground of judicial review, in the SHEV interview, the second applicant claimed that since arriving in Australia he had attended meetings and protests supporting Ahwazi Arab rights and, to that end, he provided video evidence supporting his attendance at a meeting held by Arabs for Ahwaz Australia in November 2017.
The applicants were granted an extension of time within which to make submissions. By a post-interview submission dated 12 December 2017, the applicants’ representative addressed the concern that they did not have a profile that would place them at risk, accepting that they had not openly defied or engaged in political activism whilst still in Iran but explained their decision not to have done so by reference to the arrest, persecution and imprisonment of other family members who had done so. The post-interview submission reiterated that the second applicant had participated in a 2014 protest held in Canberra and remained engaged with Arab rights groups in Melbourne. It may be noted that the post-hearing submission contained some 62 footnotes, two of which cited authorities for certain legal principles, the remainder of which referred to, or provided certain website links for, country information.
On 9 January 2018, the delegate advised the applicants’ representative that no evidence of the second applicant’s attendance at the 2014 protest outside the Iranian embassy had been provided. The delegate requested evidence of the second applicant’s participation in the 2014 Canberra protest. The applicants’ representative responded to the request by supplying:
a)two YouTube links for video recordings of the 2014 protest;
b)two video recordings relating to an Arabs for Ahwaz Australia meeting held on 11-12 November 2017, being a meeting that was held to mourn the death of an activist who had been killed in the Netherlands that month (November 2017 meeting).
Delegate’s decision
On 18 April 2018, the delegate refused the visa applications. While accepting a family history of activism on behalf of Ahwazi Arab rights, the delegate did not accept that this caused them to have a profile which was of interest to Iranian authorities. Relevantly, the delegate accepted:
a)the first applicant’s family history of activism on behalf of Ahwazi Arab rights, but did not accept that this caused her to be of any, or any particular, interest to Iranian authorities;
b)on the basis of the video evidence, that the second applicant had participated in a meeting of the group Arabs for Ahwaz Australia in November 2017, but considered this meeting had been held in private, within a closed room and found that it would be unlikely to come to the attention of Iranian authorities.
The delegate, who addressed in detail the issues of political opinion and connection to political activists, did not accept that the second applicant had a profile as a person opposed to Iran or that he would engage in political activism or express himself politically, including by advocating for Arab rights if he returned to Iran or that he had a profile as a person who was opposed to Iran.
In short, the profiles of the first and second applicants were found not to expose them to a risk of a kind that might otherwise satisfy the criteria for protection. The delegate concluded that the applicants were not persons in respect of whom Australia owed protection obligations, either as a refugee under s 36(2)(a) or by way of complementary protection under s 36(2)(aa).
Authority’s decision
On 23 April 2018, the delegate’s decision was referred to the Authority and the applicants were advised of that referral and provided a copy of the Authority’s Practice Note respecting the provision of submissions in relation to the fast track review process. The applicants appointed lawyers who represented their interests on that review and in this proceeding.
The applicants did not provide a submission within 21 days of the delegate’s decision being referred to the Authority. Instead, a request for an extension of time was made on the basis that the Department had delayed in its response to an FOI request. A request for an extension of time was refused. Although no point was taken in relation to the issue, this may be explained by the reasons of the Authority at [3] which record that the submission had in fact been taken into account in any event.
On 7 and 18 June 2018, the applicants’ lawyer made detailed submissions to the Authority to which were attached copies of extensive documents, including information relating to the sur place claims. Further country information was provided with links to websites in some 14 footnotes to the submission.
On 16 August 2018, the Authority made a decision affirming the decision to refuse the visa application and provided a statement of reasons for doing so.
As relevant to the ground of review, in addressing the information that had been placed before it, the Authority considered: information provided by the Secretary: [2]-[3]; Country information: [4]-[6]; the second applicant’s political profile: [7]-[10]; apostasy: [11]-[13]; mental health: [14]-[16]; other matters: [17]-[19]. Until supplementary submissions were filed, no other aspects of the Reasons were addressed.
As concerned the new information of which complaint is now made, the Authority declined to accept the information relating to the sur place claims, doing so on the basis that it did not consider there to be exceptional circumstances sufficient to justify receipt of the new information under s 473DD: [7]-[8].As the amended ground of review turns on this issue, it is convenient to examine the Authority’s Reasons below.
As concerned other ‘new’ information, the Authority:
a)stated that it had received the applicants’ submission and that it had considered it (although it was not new information): [3];
b)identified that attached to the applicants’ submission was a large volume of new information, including country information: [3];
c)identified the country information so provided and the context in which it was being supplied, including that the applicants’ post-hearing submission to the delegate had likewise supplied a volume of additional information, some of which had been published by the same sources as that which they sought to update: [4];
d)was not satisfied that exceptional circumstances were shown as to justify consideration of the new information, save for a recent report from the UK Home Office: [5]-[6];
e)concluded other information provided was either not new or that exceptional circumstances were not demonstrated in relation to: (i) certain photographs: [9]; (ii) an undated letter: [10]; (iii) information respecting apostasy: [11]-[13]; claims respecting the applicants’ mental health: [14]-[16]; (iv) an issue arising by way of complaint as to translating standards: [17]-[18]; (v) the grant of a visa to the eldest daughter who had married an Australian permanent resident: [19].
The Authority dealt with the topic, Activities in Australia at [67], and accepted the second applicant was a member of the Ahwazi community in Melbourne and had attended community gatherings from time to time. It found he had not claimed, or provided evidence, to have played a prominent or leadership role in that group. It accepted that the second applicant had attended the meeting in November 2017 and that there was video footage posted of that meeting at which he could be identified. The Authority observed that the Ahwazi Community group was focussed upon social and cultural activities rather than political or activist issues.

The Authority’s conclusions at [67] included that “While I accept he has some interest in the Ahwazi community and its political issues, it is apparent from his evidence that his involvement is low level; he does not have any significant or high-level involvement such that he would be perceived as having a political profile. Further the applicant did not have a political profile at the time he left Iran and he has not claimed that anyone has approached his family in Iran in relation to him or his activities in Australia or that he is otherwise aware that these activities have come to the attention of the authorities.” After consideration of other evidence and country information, the Authority concluded that it was not satisfied the second applicant was at risk of harm on account of a political profile if he returned to Iran: [67].
In addressing the topic, Returning to Iran, the Authority concluded that the first applicant coming from an activist family was insufficient to give the applicants a political profile in Iran and that at the time of departing from Iran the applicants’ representative had, in effect, conceded they may not have a profile with Iranian authorities for any reason: [34], [66]. The Authority did not accept the submission the applicants had a well-founded fear of persecution and concluded at [80], notwithstanding the first applicant’s family background:
. . . the applicants did not have profiles with the authorities at the time they left Iran and I have not accepted that, since being in Australia, Applicant 2 has developed a political profile such that the Iranian authorities would be interested in him if they came to learn of his low-level involvement with an Ahwazi community organisation in Australia. I do not accept that Applicant 2 has renounced Islam and even considered together I am not satisfied there is a real chance of the applicants suffering persecution in the reasonably foreseeable future in Iran on the basis of their family backgrounds, activities in Australia, their Arab Ahwazi ethnicity and imputed political opinion, religion, status as returned asylum-seekers from a western country, or any other reason.
Upon conducting the de novo review, the Authority found that the applicants were not persons to whom Australia owed protection obligations, and affirmed the delegate’s decision.
Procedural history
On 24 August 2018, the applicants filed an application for judicial review of the Authority’s decision together with an affidavit affirmed by the first applicant to which was exhibited a copy of the Reasons but adducing no further evidence in support of the application for judicial review. The grounds of review in this application were later abandoned.
On 9 November 2018, a response was filed on behalf of the Minister. An order was sought for dismissal of the application on the bases that: (1) the court had no jurisdiction to review the decision of a delegate; (2) the Authority’s decision was not affected by jurisdictional error.
On 17 March 2020, an order was made appointing the first applicant as litigation guardian of the third-sixth applicants. The proceeding was fixed for hearing and orders made to regulate the filing of submissions.
On 16 July 2020, the applicants filed an Amended Application.
Given a series of recent decisions delivered by the High Court, at their request, the parties were afforded an opportunity to deliver post-hearing submissions.
By submissions filed on 12 May 2021, the applicants sought leave to further amend their application so as to ground their complaint on a failure to properly perform the power conferred by s 473DD and in particular by a failure to address par 473DD(b)(ii) in addition to the remainder of that provision. Counsel for the Minister filed a responsive submission opposing the grant of leave but addressing the substantive issues that were sought to be relied upon.
Upon consideration I concluded that, in part, a proper basis for seeking the amendment was not demonstrated, however, on the assumption that the refusal of leave was an erroneous exercise of discretion, I have considered the parties’ submissions. These issues are addressed below.
Ground of review – new information
The sole ground of review in the further amended application for review reads:
The Authority misconstrued and/or misapplied s 473DD~~(a)~~ of the [Act] in respect of the receipt of new information.
Particulars
A.The Applicants provided new information to the Authority in the form of:
i.an assertion that video footage showing the Second Applicant attending a meeting of Arabs for Ahwaz Australia was posted publicly to Facebook by Ahwazi Arab political and media activist, Methaq Abdullah: CB432-433;
ii.a link to Methaq Abdullah's Facebook profile:·CB433; and
iii.accompanying computer screenshots of the footage having been posted: CB437 (together new information).
B.In a submission accompanying the new information, it was indicated on behalf of the Applicants that the new information was provided in response to the Delegate’s finding that the “meeting was held in a private and closed room”: CB432.
C.The Authority was obliged to consider all relevant circumstances in the application of s 473DD(a).
D.In purporting to apply s 473DD(a) to the new information; the Authority did not consider:
i.that the new information was provided in response to the Delegate's finding that the meeting was held in a private and closed room;
ii.the Facebook profile of Methaq Abdullah.
E.In the premises, the Authority's application of s 473DD miscarried.
F.The Authority's error described in particular E above was material because there is a possibility that if it had received and considered the new information described in particular A, the Authority might have formed a different view of the political significance of the Second Applicant's membership of Arabs for Ahwaz Australia and thereby reached a different conclusion in relation to the Applicants' application.
The only ‘new’ information being relied upon at the stage of filing the amended application was the three items of information referred to in paragraphs Ai-Aiii above.
In seeking to further amend their application, the only substantive amendment was to delete ‘(a)’ in the reference to s 473DD(a) of the Act. However, by their supplementary submissions, the applicants’ sought to enlarge the scope of the ground of review beyond complaint as to the matters addressed in the Reasons at [7]-[8] and to include the additional topics addressed in those Reasons at [9]-[10] and in relation to which the Authority had also not been satisfied of exceptional circumstances as to justify that new information being considered on the fast track review. The ‘new’ information considered by the Authority at [9]-[10] related to a claim that the second applicant had built up a profile with high-profile political members of the Ahwaz community which, it was said, had separatist sentiments.
Submissions
The sole ground of review turned on the Authority’s refusal to consider ‘new information’ as that term is defined in Pt 7AA of the Act, including the website links contained in a footnote to those submissions. More particularly, the applicants contend that it fell into jurisdictional error by misconstruing or misapplying s 473DD of the Act, which provides that the Authority must not consider any new information unless the Authority is satisfied there are exceptional circumstances to justify considering the new information. The parties’ post-hearing submissions on this issue arising from AUS17 are addressed below.
As relevant to the original ground of review, the applicants submitted they had provided three forms of new information: (1) video footage of the second applicant attending a meeting of Arabs for Ahwaz Australia posted publicly on the Facebook profile of Methaq Abdullah, a person said to be an Ahwazi Arab political and media activist; (2) a link to Methaq Abdullah’s Facebook profile; and (3) accompanying computer screenshots. Those matters were referred to at pp.2-4 of a submission dated 7 June 2018 by the applicants’ lawyer to the Authority.
Contextually, at p.2 a submission was made on the basis that even if it was to be assumed that the applicants “did not have a high enough profile with the authorities at the time of their departure, there are several factors that raise the Applicants’ profiles outside of their home country.” This submission was framed in terms which acknowledged the applicants may not have satisfied the delegate that, at the time of their departure, they had an imputed political profile such as to place them at risk of persecution if they returned to Iran. The making of that submission may be understood in light of the delegate’s findings that the second applicant did not have a profile as to place him at the requisite risk of harm. The submission sought to build a case for the sur place claims based upon the second applicant’s activities in Australia.
The submission made in support of acceptance of the new information read:
Applicant 2 has been a member of the Ahwazi Community in Melbourne for a number of years. He has regularly attended group meetings and has been an active member. He has provided video clips of some of the meetings which have been shared online on various social media pages. The delegate has accepted that the applicant attended one particular meeting based on the video clip provided, however she considers the “meeting was held in a private and closed room” and is unlikely that his attendance will come to the attention of the Iranian authorities. What the delegate has failed to consider is that these clips were downloaded from the Facebook page of an Arab Ahwazi political and media activist named Methaq Abdullah. These video clips are in the public domain and can be accessed by anyone including Iranian intelligence officers.
At footnote [4] to this submission was a website link to a Facebook page.
It was submitted acceptance of ‘new information’ by the Authority was supported by the second applicant’s activity in Melbourne as a member of the Ahwazi Community group over several years, a matter which had been identified by the delegate but without recognition that photos of the meetings could be downloaded into the public domain. Footnote 4 of the submission to the Authority provided a link to a website Facebook page said to be that of Methaq Abdullah. It was claimed that the video clips were in the public domain and could be accessed by anyone, including Iranian intelligence officers.
The applicants sought to draw two points of significance from the submission.
First it was submitted that the new information was provided in direct response to a finding of the delegate that the second applicant’s activism was private and not likely to come to the attention of the Iranian authorities. It was said that before receiving the delegate’s decision, the applicants had not been on notice that the question of whether the meeting had been held in public or private would be in issue. The applicants claimed that they were thereby constrained in their ability to provide the new information at any earlier time. With implicit reference to par 473DD(b)(i) of the Act, it was submitted those circumstances were relevant to whether exceptional circumstances existed as might justify the receipt and consideration of such material as new information on the fast track review.
Secondly, as noted, the applicants provided a link to the Facebook page of Methaq Abdullah. At the same time, at footnote 16 of the applicants’ submission, in this Court it was accepted that “The web address for the Facebook profile is now inactive/defunct.” That fact was not before the Authority and should be disregarded for the purposes of judicial review.
The applicants contended that their submission and the other material relied upon had the capacity to be highly probative of the applicants’ core claim that the second applicant’s attendance at meetings of Arabs for Ahwaz Australia was public and politically significant, and on that basis sufficient to give him a political profile in Iran. It was submitted that the probative value of the information was also relevant to whether there were exceptional circumstances justifying its receipt for consideration on fast track review.
It was submitted that given its relevance to the question of whether exceptional circumstances were shown, the Authority was obliged to consider the applicants’ submissions but that it had not done so.
On those bases, it was submitted that by reason of its failure to consider all of the relevant circumstances, the Authority’s application of the condition of ‘exceptional circumstances’ in
s 473DD had miscarried.
The Minister submitted the applicants did not establish relevant factors were ignored simply by pointing out that they were not mentioned by the Authority. It was submitted that properly understood, the Authority reasoned that, far from being “highly probative”, the “new information” had no probative value. This was said to be so because there was insufficient evidence for the factual foundation necessary to draw that inference. For those reasons, it was submitted the applicants’ attempt to frame the “new information” as highly probative was little more than an impermissible attempt at merits review.
The supplementary submissions arising from AUS17 are addressed below.
Applicable principles – Fast track review
It is important to identify the legislative framework established by Pt 7AA for the purpose of the de novo review that is to be conducted by the Authority. More particularly, it is important for the purpose of locating the consideration of whether jurisdictional error is demonstrated in relation to the exercise of power conferred by s 473DD within that framework.
Part 7AA of the Act concerns the subject Fast track review process in relation to certain protection visa applications. It is arranged in 8 Divisions comprising ss 473BA-473JF. In AAZ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 407, [30], Allsop CJ observed that Pt 7AA of the Act had now been considered by the High Court on several occasions.
In Div 1 of Pt 7AA, s 473BC provides for the referral of certain decisions for fast track review.
In Div 2 of Pt 7AA, by the combined operation of ss 473CA and 473CC, the Minister must refer, as soon as is reasonably practicable after a decision is made, and the Authority must review, a fact track reviewable decision. Section 473CB identifies the material that must be provided to the Authority and includes the delegate’s decisional record: Act, s 473CB(1). Under Pt 7AA, the core function that is imposed on the Authority is to conduct the review of a fast track reviewable decision: Act, s 473CC(1); cf Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429, [18] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
Content of the natural justice hearing rule in Pt 7AA
Division 3 of Pt 7AA concerns the topic, Conduct of review. In contrast with a review under Pt 5 and Pt 7 of the Act, Pt 7AA provides a fast track scheme being a mechanism of limited merits review: BYA17 v Minister for Immigration and Border Protection (2019) 269 FCR 94, [23]. By Sub-div B of Div 3, Review on the papers, the Authority must, subject to Pt 7AA, conduct a review without accepting or requesting new information and without interviewing the applicant: Act, s 473DB.
Division 3 is arranged in three sub-divisions which variously: provide an exhaustive statement of the natural justice hearing rule for a review conducted by the Authority (s 473DA); require that the Authority should ordinarily conduct its review on the papers (s 473DB); provide for the exceptional, and strictly circumscribed circumstances in which new information or documents may be obtained or considered (ss 473DC-473DE), and; authorise and prescribe the manner in which the Authority may conduct an interview of the applicant or obtain further information (s 473DF): BYA17 v Minister for Immigration and Border Protection (2019) 269 FCR 94, [24]-[34]. In DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551, [69] the Full Court stated: “subject to Pt 7AA, the Authority must review the fast track reviewable decision by considering the review material provided to it without accepting or requesting new information and without interviewing the referred applicant.”
Since the Authority is required to review for itself the material that had been considered by the delegate, it is generally not required to notify an applicant where it is considering taking a view of the matter different from that taken by the delegate. In DGZ16, (2018) 258 FCR 551, [72], the Full Court held that: “the Authority is not required to inform the appellant of specific reservations about the appellant’s case and to provide the appellant with an opportunity to respond.” This proposition is not unqualified; a decision may still be open to scrutiny, including on grounds of legal unreasonableness in the circumstances of a particular case: DP117 v Minister for Home Affairs (2019) 269 FCR 134, [40]; ABT17 v Minister for Immigration and Border Protection (2020) 94 ALJR 928, [24]-[25].
But generally, “no denial of natural justice arises from the mere fact that the Authority made different findings to those findings made by the delegate on the limited merits review system available under the fast track scheme”: DBE16 v Minister for Immigration and Border Protection [2017] FCA 942, [59]. There, Barker J held that “the Authority was under no obligation to offer the appellant an interview or invite him to comment prior to making an adverse finding”, and that to do so was part of the nature of the fast track system as envisaged by Pt 7AA: [2017] FCA 942, [61]. So, in conducting a de novo review, it is generally open to the Authority to disagree with the delegate’s evaluation of the material without providing to the applicant an opportunity to respond or to afford him or her an invitation or hearing.
To say as much does not immunise a decision from scrutiny on judicial review.
Nothing in

Pt 7AA otherwise constrains the application of the law respecting the duty of an administrative decision-maker to consider the claims and issues arising from the material that is before it and the issues that may arise from its own findings: AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503, FCAFC 89, [18]-[19]. Like other decision-makers, the Authority must consider each articulated claim and each claim that clearly arises from the review material before it: cf NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1, [60].
Getting or considering new information
The overriding duty of the Authority to ‘review’ the fast track reviewable decision “is accompanied by a procedural duty to conduct that review by ‘considering’ the review material provided to it by the Secretary without accepting or requesting ‘new information’” and without interviewing the referred applicant. In turn, this procedural duty is qualified by the conferral of “specific procedural powers to ‘get’ new information and in specified circumstances, and on specified conditions, to ‘consider’ that new information.” As will appear, “Performance of the procedural duty subject to the potential for exercise of these powers exhausts the requirements of ‘the natural justice hearing rule’ in relation to the review.”
Sub-division C in Div 3 of Pt 7AA concerns Additional Information, comprises ss 473DC-473DF, and addresses four matters: the conferral of power to ‘get’ new information; the confined power to ‘consider’ new information; the obligation to ‘give’ new information to an applicant, and; the issuing of an ‘invitation’ to give new information: Act, ss 473DC-473DF.

By ss 473DC(1)-(2), the Authority is conferred with power, but is under no duty, to get any new documents or information that were not before the delegate. The Authority is also conferred power to invite a person to give new information in writing or at an interview: s 473DC(3). The twofold criteria which constrain the Authority in ‘getting’ new information is that it was not before the original decision-maker and that the Authority considers it may be relevant: Act, pars 473DC(1)(a)-(b). It is unnecessary to examine s 473DC further in this case. However, it is important not to conflate the power to ‘get’ new information with the distinct power to ‘consider’ it. There is no express requirement that ‘exceptional circumstances’ be shown in relation to getting new information. This criterion applies only as part of the proscription against considering it. Unless the applicant satisfies the Authority there are exceptional circumstances to justify it in doing so, it must not consider new information. Thus jurisdictional error may be demonstrated by a finding of “the absence of exceptional circumstances within the meaning of s 473DD(a) such that the discretion under s 473DC cannot be exercised in favour of obtaining new information”: CCR18 v Minister for Immigration and Border Protection [2020] FCA 9, [26] (Jackson J), citing EMJ17 vMinister for Immigration and Border Protection [2018] FCA 1462, [60] (Thawley J).
Section 473DD is of central importance to this application. Section 473DD proscribes the Authority from considering any new information unless the conditions provided by that section are satisfied. It is upon this provision that the current application turns. It reads:
473DD Considering new information in exceptional circumstances
For the purposes of making a decision in relation to a fast track reviewable decision, the Authority must not consider any new information unless:
a)the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
b)the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
i.was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
ii.is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims. (Emphasis added)
As s 473DD is expressed in imperative and proscriptive terms; the Authority must not consider any new information unless the cumulative requirements of that provision are satisfied. Section 473DD operates in the context of s 473DC which confers a distinct power to ‘get’ new information. While the provisions in Pt 7AA form part of the statutory framework in which they operate, the requirements which govern the availability of these specific discretionary procedural powers should not be conflated.
In DVO16 v Minister for Immigration and Border Protection (2021) 95 ALJR 375, the Court considered the nature of the overriding duty cast upon the Authority by Pt 7AA in conducting a review and recognised it was qualified, relevantly, by s 473DD. The plurality stated at [16]:
The overriding duty of the Authority to ‘review’ the fast track reviewable decision referred to it by the Minister is accompanied by a procedural duty to conduct that review by ‘considering’ the review material provided to it by the Secretary without accepting or requesting ‘new information’, being ‘a communication of knowledge about some particular fact, subject or event’ that was not before the Minister when the delegate made the referred decision, and without interviewing the referred applicant. That procedural duty as to the manner of conduct of the review is qualified only by the Authority having specific procedural powers to ‘get’ new information and in specified circumstances, and on specified conditions, to ‘consider’ that new information. Performance of the procedural duty subject to the potential for exercise of these powers exhausts the requirements of ‘the natural justice hearing rule’ in relation to the review. (Citations omitted, emphasis added)
Edelman J stated at [78] that “[t]he general position is that new information is not to be requested or accepted by the Authority and the applicant is not to be interviewed, and even if new information is requested by the Authority it can only consider the information in limited circumstances. In short, the focus of Pt 7AA is almost exclusively upon ‘material’, not upon ‘information’.” Stated in other terms, discharge of the procedural obligation borne by the Authority is not to be analysed through a lens of procedural fairness: BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29, [34] (The Court); cf Minister for Home Affairs v DUA16 (2020) 95 ALJR 54, [26] (The Court).
Upon those principles, the Authority’s overriding duty to conduct a de novo fast track review is conditioned by a procedural duty to do so, subject to the Act, only upon a consideration of the review material supplied to it by the Secretary. By the Act, the only qualifications upon the performance of that procedural duty arise from the powers conferred by ss 473DC and 473DD to ‘get’ and/or ‘consider’ new information. The proper performance of the procedural duty, as qualified by those powers, exhausts the requirements of natural justice in the conduct of a fast track review under Pt 7AA. Proper performance is thus of importance and attaches to both the procedural duty to consider material including consideration, where it arises, of the anterior obligation whether to exercise the specific powers to get or consider new information.
Contrary to some earlier authority, while the requirements of par 473DD(a) must be satisfied, the Authority is first required to consider par 473DD(b) as this may inform how par 473DD(a) applies in a particular case: cfAQU17v Minister for Immigration and Border Protection (2018) 162 ALD 442, [13]-[14]; AUS17, [8], [18]-[20]. The scope and content of the procedural duty that is imposed by s 473DD and the specific powers conferred by s 473DD was explained in AUS17. On the approach selected by the plurality, it requires that the Authority first consider both limbs of pars 473DD(b)(i)-(ii), before addressing the requirements of par 473DD(a). To do otherwise entails error. In AUS17 at [12], the plurality held:
. . . the Authority does not perform the procedural duty imposed on it by s 473DD in its conduct of a review if it determines in the purported application of the criterion in s 473DD(a) that exceptional circumstances justifying consideration of new information obtained from the referred applicant do not exist without first assessing that information against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and then taking the outcome of that assessment into account in its assessment against the criterion specified in s 473DD(a). The nature of the non-performance of the procedural duty in such a case is not inaccurately characterised as a failure to take account of a mandatory relevant consideration in the purported application of the criterion in s 473DD(a). (Citations omitted)
As non-performance of the procedural duty imposed by s 473DD is not inaccurately characterised as constituting a failure to take account of a mandatory relevant consideration, this means that, subject to the issue of materiality, such a failure may, without more, constitute jurisdictional error. In AUS17, the Authority’s error in that case was identified at [18]:
. . . the Authority assessed the letter against the criterion specified in s 473DD(b)(i), finding that criterion not to be met. It went on to assess the letter against the criterion specified in s 473DD(a), finding that criterion not to be met. There being nothing to suggest that the letter was incapable of being assessed by the Authority to meet the criterion specified in s 473DD(b)(ii), what the Authority should have done, but evidently did not do, was assess the letter against the criterion specified in s 473DD(b)(ii) and then take that assessment into account in going on to assess the letter against the criterion specified in s 473DD(a). (Emphasis added)
Edelman J agreed only in the need to consider both limbs of s 473DD(b): [23].
Upon the reasoning in AUS17, the following principles are settled in the performance of the specific power conferred by s 473DD: (1) the Authority must first assess the new information upon the requirements of both pars 473DD(b)(i) and (ii); (2) if neither criterion is satisfied, the proscription in s 473DD is triggered and the Authority is prohibited from considering the new information for the purposes of its de novo fast track review. In this situation, no occasion arises to address par 473DD(a); (3) contrastingly, if the criterion in either pars 473DD(b)(i) or (ii) is satisfied, that circumstance must be factored into the Authority’s assessment whether the criterion in par 473DD(a) has been satisfied; that is, whether it has been satisfied by the applicant that there are exceptional circumstances to justify considering the new information; (4) further, if both pars 473DD(b)(i) and (ii) are satisfied, those factors must be included in the assessment of par 473 DD(a); (5) if the process undertaken by the Authority in exercise of the specific power conferred by s 473DD is not approached in this manner, it will have failed to perform the procedural duty which accompanies the overarching duty in the conduct of a fast track review: AUS17, [12], [23]-[25]. Since a failure of this kind is akin to a failure to observe a mandatory relevant consideration in the process of decision-making, jurisdictional error will be established if it is shown that the failure was material in all of the circumstances of the case.
The specific powers which qualify the procedural duty that accompanies the overriding duty in conducting a fast track review, are inherently procedural. As such the Authority is not obliged to provide comprehensive reasons for a decision, the effect of which is to decline to consider new information in discharging its core function of a de novo review: Plaintiff M64/2015, (2015) 258 CLR 173, [25]; CAQ17, (2019) 274 FCR 477, [119]-[120]; BVD17, (2019) 268 CLR 29, [40]; Checuti v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 98, [30]; BDF17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 401, [78]; EWQ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 778, [77]. That is, the Authority is not obliged to provide: reasons for its determination as to whether information given to it was ‘new’; reasons whether it had been satisfied of exceptional circumstances under s 473DD, or; reasons whether it considered such circumstances justified the new information being considered for the purposes of the de novo fast track review under s 473CC(1).
Having regard to those principles, while jurisdictional error may include ignoring relevant material in a way that affects the exercise of power (here, whether to accept new information for the purposes of consideration), it may be difficult to infer that a decision had been made not to consider information from what has not been said in the reasons of a decision-maker. Error is not established simply by pointing out that the Authority’s reasons do not mention factors said to be relevant for the evaluation whether the requirements of s 473DD are met.
As concerns the procedural power whether to consider new information, the Authority must, as far as practicable, comply with Practice Directions: s 473FB(3). The Authority is thereby obliged to consider matters raised by any submission that is given in accordance with the terms of such directions and is generally obliged to complete its review within 6 weeks. Further, in the exercise of its powers and functions, the Authority is to pursue the objective of providing a mechanism of review that is efficient, quick, free of bias and to do so in a manner consistent with Div 3 of Pt 7AA: s 473FA. Those directions also inform the approach that is to be taken by the Authority where a fast track applicant seeks to put new information before it on review.
Guidance may be also obtained upon the approach to be taken to the evaluation on judicial review whether Authority failed in the proper exercise of power conferred by s 473DD to decide whether new information should be considered. In BDF17 at [77], Kenny J considered that it was tolerably clear from the Authority’s analysis that:
. . . it directed its attention to s 473DD, addressing the circumstances relevant to s 473DD(b) before recording a lack of satisfaction regarding the criterion in s 473DD(a). In these circumstances it seems to me implicit that the IAA addressed s 473DD(b)(i) and (ii), as well as s 473DD(a) . . .
Kenny J concluded at [89] the applicant had not shown a sufficient basis “in the Authority’s reasons or otherwise from which it could properly be inferred that the IAA misconstrued s 473DD(a), misunderstood or misapplied the expression “exceptional circumstances” in s 473DD(a).”
In CPP17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2), [2021] FCA 199 at [112], Besanko J was satisfied by the Authority’s analysis that it had considered each of par 473DD(b)(i)-(ii) notwithstanding that the text of the Act had not been employed in the reasons.
In BXT17 v Minister for Home Affairs [2021] FCAFC 9, the Full Court stated at [139]:
While the plurality in AUS17 does not set out how the Authority should, to adopt the Minister’s term, “structure” its reasons or, put another way, how qualitatively it should address each of the criterion, they do require that the Authority assess the new information against each of the criterion in s 473DD(b)(i) and s 473DD(b)(ii), assuming it is capable of such assessment, and then take the outcome of that assessment into account in its subsequent assessment of the criterion in s 473DD(a): see AUS17 at [11].
The Full Court held at [142], that the Authority had fallen into error in its consideration under s 473DD because it had failed to consider the criterion in par 473DD(b)(ii) before turning to par 473DD(a). As importantly, the reasoning in BXT17 recognised that particular kinds of information may fall within one but not necessarily both limbs of par 473DD(b).
New information
For the purposes of Pt 7AA, the phrase ‘new information’ means, subject to that Part, any document or information of an evidentiary nature that was not before the Minister when the decision was made under s 65 to refuse the application and which the Authority considers may be relevant: s 473DC(1); AUS17, [3]; DUA16 (2020) 95 ALJR 54, [25]. In AAZ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 407 at [33], Allsop CJ observed that “information will be relevant if it is capable of rationally affecting the IAA’s assessment of the probability of the existence of some fact about which the IAA might be required to make a finding in determining afresh whether or not to be satisfied that the criteria for the grant of a protection visa have been met.” The Chief Justice noted ‘information’ could not “sensibly be read as extending beyond knowledge of facts or circumstances relating to material or documentation of an evidentiary nature”: [2021] FCA 407, [33]; see also DPI17 v Minister for Immigration and Border Protection, (2019) 336 ALR 665, at [35] (Griffiths and Steward JJ); Plaintiff M174/2016, (2018) 353 ALR 600, [21] (Gageler, Keane and Nettle JJ, Gordon and Edelman JJ agreeing); AWT19 [2021] FCAFC 58, [60]-[63], [67], [76].
Ultimately, the power to ‘consider’ new information is not available unless the criteria for doing so are met. To this end, s 473DD imposes a duty to assess such new information in making a decision whether it may proceed to ‘consider’ it. In AUS17, the plurality held at [6]:
. . . s 473DD must be construed to impose a duty on the Authority to assess new information that it has got against the specified criteria. Having performed that duty to assess the new information against the specified criteria, the Authority must take that new information into account in making its decision on the review if those criteria are met and must not take that new information into account in making its decision on the review if those criteria are not met.
Exceptional circumstances
In s 473DD, the scope of the condition “exceptional circumstances” has a broad meaning; one that is incapable of exhaustive definition: Minister for Immigration and Border Protection v BBS16, (2017) 257 FCR 111, [104]; BVZ16 v Minister for Immigration and Border Protection (2017) 254 FCR 221, [39]-[41]; Minister for Immigration and Border Protection v CQW17 (2018) 264 FCR 249, [51].
A necessary consequence of the broad meaning of that expression is that the Authority is obliged to take into account all relevant circumstances in considering whether exceptional circumstances are made out: BBS16, (2017) 257 FCR 111 at [104], Kenny, Tracey and Griffiths JJ; CQW17 (2018) 264 FCR 249 at [51]-[52]; ELQ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 27, [12]-13]. In ELQ17, [2021] FCAFC 27 at [12]-13] a Full Court recognised that as the requirement for the admission of new information turned upon satisfaction of exceptional circumstances, an evaluative judgment was required of the Authority, this being “a question over which reasonable minds might differ.” The Court accepted that across the spectrum of circumstances which might qualify as being ‘exceptional’ within the meaning of s 473DD, as that provision operated in the framework of Pt 7AA, included those which were out of the ordinary, unusual or “special in a particular case by reason of their weight, quality or a combination of related factors.” Proper restraint on judicial review is required in the evaluative task whether the circumstances were exceptional; that is because the role of the court is one of judicial ‘review’ – it is not appellate.
Since justification for the consideration of new information requires satisfaction of exceptional circumstances, an applicant seeking to adduce new information before the Authority on a de novo review should satisfy the Authority why the ‘new information’ had not been provided earlier to the delegate: AUH17v Minister for Immigration and Border Protection [2018] FCA 388, [33] (Mortimer J); AQU17, [13]-[14]; CPX16 v Minister for Immigration and Border Protection [2019] FCA 1164, [34] (Kenny J). An applicant should at least identify the facts on which he or she relies as constituting exceptional circumstances: BDF17 v Minister for Immigration and Border Protection [2018] FCCA 2095, [49] (Mercuri J). Although no onus is engaged on review under Pt 7AA by the Authority, where a fast track applicant offers no explanation why he or she is relying for the first time on facts that were not put before the delegate, two consequences follow: (1) the Authority is not in error for first identifying that par 473DD(b) has not been satisfied; (2) once this conclusion is reached, the prohibition expressed in s 473DD is ‘triggered’: AUH17.
Having regard to the nature of its function of review, for the purposes of the exercise of power under s 473DD, the Authority also needs to assess the likely importance of the material to its task, which, in some cases, may include not doing anything: AWT19, [2021] FCAFC 58, [79].
In the evaluation of whether exceptional circumstances are shown to justify it being considered, account is to be taken of its probative value in relation to the applicants’ claims. Stated in other terms, for the purposes of s 473DD(a) of the Act “the nature and cogency of the new information are relevant factors in characterising whether the requisite circumstances exist to justify the consideration of that information. This will naturally include the relevance, credibility and reliability of the new information: see CQW17 (2018) 264 FCR 249 at [52]); DFK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA [12(5)]; CCR18, [2020] FCA 9, [42]; AGK17, [2020] FCA 668, [34]; BNB17 [2020] FCA 304, [55], [85] (appeal dismissed (2021) 95 ALJR 375.

Contrastingly, in evaluating, for the purposes of s 473DD, whether or not the Authority has been satisfied whether exceptional circumstances are made out, new information which only gives rise to speculation will not suffice: CPX16 v Minister for Immigration and Border Protection [2019] FCA 1164, [36]-[37] (Kenny J).
Upon the analysis in AUS17, properly construed, the requirements of sub-pars 473DD(b)(i)-(ii) provide alternative routes by which par 473DD(a) may be engaged. As the text of s 473DD(b) confirms, pars (i)-(ii) contain additional criteria that are to be satisfied before the Authority can be satisfied under par 473DD(a) whether exceptional circumstances are shown as may justify it in considering new information upon its de novo fast track review. More precisely, the criteria required in relation to ‘new’ information under:
a)par 473DD(b)(i), is that it must meet “the bipartite description of information that was not before the Minister at the time of making the referred decision and that could not have been before the Minister at the time of making the referred decision”;
b)par 473DD(b)(ii), is that it must meet “the tripartite description of ‘credible personal information’, that was not previously known, and that may have affected consideration of the referred applicant's claims to be a person in respect of whom Australia has protection obligations if it had been previously known”.
AUS17, (2020) 94 ALJR 1007, [8] citing Plaintiff M174/2016, [33]-[34].
In light of those requirements, par 473DD(b)(ii) only allows “for a very limited second opportunity to provide evidence that might previously have been provided”: AUS17, (2020) 94 ALJR 1007, [9]. Furthermore, once par 473DD(b) has not been satisfied, any “assessment of the new information against the criterion specified in s 473DD(a) is redundant”: AUS17, [11]-[12] (Kiefel CJ, Gageler, Keane, and Gordon JJ), [23], [25] (Edelman J agreeing).
The Authority will err by diverting itself from considering the exercise of the discretion at all, including by doing so upon a failure to inform itself of relevant cogent matter: CCR18 [2020] FCA 9, [42]-[43]; AGK17, [2020] FCA 668, [34]. The error will not be jurisdictional and so will not attract relief on judicial review unless it was material in the requisite sense.
Resolution
On judicial review, the applicants as moving parties bore the onus of proof in establishing jurisdictional error and its materiality: MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441, [39], [58], [60], [99], [165]; Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594, [67]. In the context of Pt 7AA, this means the applicants must establish the factual foundation for a finding that the Authority failed in the proper exercise of the power conferred by s 473DD: BYA17, (2019) 269 FCR 94, [35] citing BVD17, (2018) 261 FCR 35, [41]; see also on appeal, BVD17, (2019) 268 CLR 29, [38].
The applicants initially contended the Authority misconstrued and/or misapplied s 473DD(a) of the Act in respect of the ‘new information’ supplied for the conduct of its review. For the reasons which follow, I was not persuaded that the applicants had established the factual foundation for a finding that the Authority failed to consider whether to exercise the procedural power conferred by s 473DD(a). However, in light of the supplementary submissions filed after the delivery of AUS17, the Minister conceded the Authority had not considered information supplied in relation to Mr Abdullah in the manner required by pars 473DD(b)(i) or (ii) but said that the error was immaterial. Certain other new material is addressed below.
Nonetheless, it is useful to consider the submissions as made and the order in which this occurred. By that means, the evolving nature of the submissions may be seen.
I approach this review by reference to the manner in which it was framed in the particulars to the amended ground. It may be accepted that the applicants provided the information relied upon. The ‘new’ information that was relied upon comprised four matters: (1) an assertion that video footage of the second applicant attending a meeting of Arabs for Ahwaz Australia had been posted publicly to Facebook by Ahwazi Arab political and media activist, Methaq Abdullah; (2) a link to Methaq Abdullah's Facebook profile; (3) accompanying computer screenshots of the footage having been so posted, and; (4) the submission made to the Authority. I also accept that reliance was placed upon that submission as indicating that the new information was being provided to the Authority in response to the delegate’s finding that the “meeting was held in a private and closed room.”
The gravamen of the applicants’ original complaint was that in purporting to apply s 473DD(a) to the new information, that is, whether exceptional circumstances were established, the Authority did not consider: that the new information was being provided in response to the Delegate's finding the meeting was held in a private and closed room, or; the Facebook profile of Methaq Abdullah. The applicants also contend the Authority failed to have regard to their submissions that they were not on notice that it may be an issue whether the November 2017 meeting was held public or private, being information which was highly probative. For those reasons it was said the Authority's application of s 473DD miscarried. Upon the principles examined above, I agree the Authority was obliged to consider all relevant circumstances in the application of s 473DD(a) when, in the discharge of its procedural duty under s 473DD, it decided whether it had been satisfied by the applicants that exceptional circumstances were shown as would justify it in including that information for its consideration on review.
Consideration of the ‘submission’
By cll 20-31 of the Practice Direction, the applicants were advised that they might provide the Authority with a written submission indicating why they disagreed with the delegate’s decision and identifying any claim or matter that they contended had been overlooked. They did so.
A fundamental purpose of the applicants’ reliance on the submission dated 7 June 2018 was to identify a basis on which the Authority might be satisfied why they had not explained earlier (i.e. to the delegate), that the video clips showing the second applicant attending a meeting of the Ahwazi Community group were accessible in the public domain via the Facebook link given in footnote 4 of their submission. The applicants pointed to the delegate’s apparent misconception that because the meeting had been held in private it was otherwise not a matter in the public domain. Quite why the delegate should have made this distinction before her attention had been drawn to that matter (if it was the fact), was less than obvious, however, the submission simply asserted the decision-maker had failed to appreciate something which had not been drawn to her attention. Objectively, that it had not been pointed out earlier might be some indication of the significance of that issue when the matter was before the delegate. Upon the whole of the second applicant’s claim and evidence it was clear that his attendance at a protest in 2014 had been the headline submission in support of having a political profile. The attendance at the November 2017 meeting of the Ahwazi Community group apparently paled in significance as a matter having particular prominence in this context.
The applicants contended that given its relevance to the question of whether exceptional circumstances were shown, the Authority was obliged to consider their submission but that it had not done so. Attention was drawn to the Authority’s failure to make any reference to the applicants’ submission that the new information was provided in response to a finding of the delegate. The breadth of this contention ignored the express acknowledgment by the Authority at [3] of its Reasons, including that it had considered the submission. The submission was referred to five times in [3] and at least 38 other times in the remainder of those Reasons. It is convenient to recognise the Authority was evidently troubled by the considerable volume of material that was supplied comprising new claims, new information, additional documentary evidence and a multitude of other website links. Having regard to one aspect of the applicants’ submissions it may also be noted the Authority stated at [4], with reference to the Practice Direction, that the mere supply of hyperlinks was not an acceptable method for making submissions to the Authority and that copies of any further documents were to be supplied.
In recording that it had considered the submission, the Authority stated at [3]:
On 18 June 2018 the IAA received a submission on behalf of the applicants. The submission takes issue with the findings of the delegate and the evidence on which the decision was based and to that extent, I do not consider it contains new information. Within that document a submission was also made regarding consistency in administrative decision making which I do not consider information in the relevant sense. I have had regard to these submissions. The submission to the IAA included references to, and extracts from, country information as well as a considerable amount of new information including new claims and documentary evidence. (Emphasis added)
I do not accept the Authority did not have regard to the submission. Contrary to the applicants’ submissions, the Reasons at [3] expressly acknowledged receipt of the submission which had been made to the Authority, observed that it was not considered to be new information, but stated that they had been considered in any event. That the Authority considered the submission may be understood in light of the obligation in s 473FA(1): see DUA16 (2020) 95 ALJR 54, [23]. The contention that the submission had not been considered was not correct.
If the submission was to be understood as having not been considered for the discrete purpose of whether the applicants had satisfied the Authority of exceptional circumstances arising from their stated unawareness of the issue as to the November 2017 meeting being held in private and not in public, again, the fact is that the Authority recorded at [3] and [4] the submission had been considered. Within the body of the reasons at [2]-[3], the Authority identified the information that was before it and referred expressly to information supplied by the applicants and whether or not it was ‘new’ and that the submission had been considered. Those reasons foreclose acceptance of the contention on review that the submission had not been considered, including upon the issue of whether good reason existed for having not addressed the issue earlier. My rejection of that contention is somewhat reinforced by the structure of the reasons which followed, including the methodical approach that was taken by the Authority in identifying each subject that had been advanced before it and the reasons given for concluding that it had not been satisfied of exceptional circumstances such as to consider the new information. In doing so it referred repeatedly to that submission.
Consideration of other new information
The Authority addressed the following topics in evaluating whether it had been satisfied by the applicants that exceptional circumstances existed as to justify it being considered on de novo review: country information, [4]-[6]; the second applicant’s profile, [7]-[10]; apostasy, [11]-[13]; mental health, [14]-[16]; other matters, [17]-[19]. Viewed broadly, the reasons indicate the Authority brought an active intellectual consideration to this evaluative task.
Before turning to the issues raised by the applicants’ supplementary submissions, it is convenient to address the case as was put before the application was further amended (i.e. before the delivery of AUS17). As concerned the items of new information, counsel reiterated that the three pieces of information on which reliance was sought to be placed were that: (1) the video had been posted to the Facebook page of Mr Abdullah; (2) the submissions provided a link to the website of that Facebook page, and; (3) attached to the submissions to the Authority were copies of the computer screenshots.
Apart from their submission to the Authority, for the reasons that follow, I am satisfied that it considered that other information but concluded it was not of any sufficient probative value.
Upon the principles considered above, the applicants properly accepted that the Authority was not obliged to provide reasons for concluding that it was not satisfied that exceptional circumstances were made out and did not show that relevant factors were ignored simply by pointing out that they were not mentioned by the Authority. As confirmed by the authorities above, in contrast with its decision on the de novo review, the Authority was not obliged to furnish detailed reasons for a decision made under s 473DD: cf Act, s 473EA(1)(b).
The applicants submitted that the Reasons provided a basis for inferring that Methaq Abdullah’s Facebook profile had not been considered by the Authority. The applicants claimed that the video footage showing the second applicant attending a meeting of Arabs for Ahwaz Australia was posted publicly to Mr Abdullah’s Facebook profile. The applicants complained of a failure by the Authority to refer to this Facebook profile. In oral submissions, attention was drawn to data recorded on the screenshots suggesting that one video had been shared 16 times and viewed ~670 times while another had been shared 18 times and viewed ~950 times. In deference to those submissions, by contrast, it does not appear that their submission to the Authority drew its attention to the number of times that those sites had been viewed or visited. Indeed, the prominence given to the Facebook profile was as a footnote. No copy of the Facebook profile was included amongst the many other documents that were supplied. Upon the principles above, having regard to the facts of this case and upon a reading of the Reasons as a whole I am not prepared to infer the Facebook profile was not considered.
As concerned the other items of new information relied upon apart from the submission, and whether regard was paid to them, it is convenient to first examine [7] of the Reasons:
Applicant 2’s political profile
Included with the submission to the IAA were a number of photographs and some screenshots of Applicant 2 at a meeting he attended in Melbourne of Arabs for Ahwaz. The screenshots of that meeting were taken from video material provided to the delegate and they, and the claim that Applicant 2 has attended Ahwaz community meetings in Melbourne are not new information. However, the submission makes the new claim that the clips were downloaded from the Facebook page of an Arab Ahwazi political and media activist named Methaq Abdullah. This claim was not before the delegate and is new information. The submission goes on to describe activities undertaken by the Iranian authorities to monitor social media platforms for expressions of political, religious, or ideological opinion or beliefs.
Contrary to the applicants’ submission, which focussed upon the Reasons at [8], it is plain from the introduction at [7] that the Authority well recognised: (1) the applicants supplied a number of photographs and screenshots; (2) this material related to a meeting in Melbourne of Arabs for Ahwaz; (3) the meeting had been attended by the second applicant; (4) the information was being supplied in connection with the claim that the second applicant had a political profile; (5) the claim was a sur place claim – the photos and screenshots were taken in Melbourne; (6) the information was not new; (7) however, a new claim was apparent from the face of the material; (8) the new claim was that the video clips had been downloaded from the Facebook page of Mr Abdullah, who was said to be an Ahwazi political and media activist; (9) this claim had not been before the delegate; (10) in support of the new claim, the submission described activities undertaken by Iranian authorities in monitoring social media.
The Reasons at [7] acknowledged that those photographs and screenshots had been provided. It expressly recognised that the screenshots had been downloaded from video material which had already been provided to the delegate. The Authority reasoned that the screenshots were not new information. More importantly, at [7] the Authority identified that the applicants’ submission made a new claim that the ‘clips’ had been downloaded from the Facebook page of Methaq Abdullah, a claim which it found had not been before the delegate and was new. The reasoning at [7] was clearly directed to the consideration of par 473DD(b)(i) – the Authority accepted that the new claim was one that had not been before the delegate.
Insofar as the applicants sought to proffer an explanation for having not supplied the new information earlier, and in particular, an explanation for the accessibility of the video clips via the Facebook page of Mr Abdullah, on the basis that they had not appreciated the fact of the November 2017 meeting being held in private would be an issue to be considered by the delegate, this was, in effect, to accept that a new claim was being made. The applicants made no complaint that the Authority had characterised this as a new claim. The fact of the video clips being downloadable from the Facebook page or their accessibility from that page into the public domain had not been explained earlier as being a matter that supported a well-founded fear of persecution grounded upon some kind of association with Mr Abdullah.
The Authority proceeded to consider whether this was new information that could not have been provided to the delegate before the decision was made to refuse the application. I readily infer that in the exercise of its power under s 473DD the Authority dwelt upon whether it was satisfied the matters relied upon constituted exceptional circumstances and whether it was justified in giving consideration to that information in the conduct of its de novo fast track review. More specifically, I am also prepared to infer the Authority well understood from the applicants’ submission that an explanation, such as it was, had been put forward as to why they had not earlier explained to the delegate that the video clips of the second applicant’s attendance at the Ahwazi Community group meetings had been uploaded to the Facebook page of Mr Abdullah and so were in the public domain. It proceeded to examine the cogency of the information. Implicit in that evaluation was consideration of whether the new claim could have been before the delegate before the decision to refuse the application was made.
The Authority was not satisfied as to the evidence proffered in relation to Mr Abdullah, who he was, or of his supposed connection to the second applicant. The Authority concluded at [8]:
Other than the statement that Methaq Abdullah is a political and media activist, the submission does not explain who he is or what his connection to Applicant 2 (if any) is, or why his particular activities or individual profile makes it likely he would be subject to monitoring by the Iranian authorities. The submission appears to invite the IAA to assume that Methaq Abdullah’s on-line profile is such that it is likely that the Iranian authorities would be aware of his activities through his on-line presence, thereby potentially also identifying Applicant 2. There is insufficient information provided for me to draw this conclusion and I consider the submission to be speculative. I am not satisfied that exceptional circumstances exist for me to consider this new claim. (Emphasis added)
As the reasoning above confirms, the Authority did consider the applicants’ submission. It regarded it as inviting the Authority to adopt an assumption Methaq Abdullah’s on-line profile was such as to render it likely the Iranian authorities would be aware of his activities through his on-line presence and, importantly, that the Iranian authorities would potentially also identify the second applicant as being affiliated with him in a way as to support a conclusion for a well-founded fear of persecution grounded on that association. That is, the evidence comprised in the Facebook page and the downloadable videos was being used to support a claim by the second applicant to an imputed political profile by reason of an association with Mr Abdullah, a person about whom little was said or known. The Authority concluded insufficient information had been provided for a conclusion of that kind to be drawn. The Authority concluded this submission was speculative. On that basis it was not satisfied that exceptional circumstances existed as to justify the new claim being considered.

As to the applicable principles, although the parties framed their submissions in slightly different terms, there was essentially no dispute as to the effect of the holding in AUS17. I have set out above my analysis of that decision. In light of that reasoning, the question raised in this application is whether the Authority addressed each of pars 473DD(b)(i)-(ii) then 473DD(a).
As to the Abdullah new information, it was common ground this had been dealt with by the Authority at [7]-[8] and has been dealt with above. It is sufficient, having regard to the stance taken by the Minister in counsel’s responding submissions, to accept that the Authority had not considered this new information in the manner stated in AUS17. This submission was made on the express basis the Authority had not considered whether it was credible personal information and/or could not have been provided to the delegate and so, must be understood as conceding neither of the criterion in par 473DD(b)(i) nor (ii) had been addressed.
In substance, the Minister underlined the approach taken by the Authority at [8] in concluding the information was inherently speculative and, for that reason, a dispositive finding was made for the purposes of s 473DD. For those reasons, the conceded error in relation to this aspect of the matter will be jurisdictional in nature if it is shown to be material in the requisite sense.
As concerned the ALM new information, despite opposing the amendment, again it was accepted that the Authority had not considered this new information in the manner stated in AUS17. However, it was submitted an inference should be drawn that the Authority had assessed this information against the criterion in par 473DD(b)(i), but that it had not assessed it against the criterion in par 473DD(b)(ii). Again, materiality was put in issue.
Accepting the Authority did not refer expressly to par 473DD(b)(i)-(ii), upon the principles stated above, the absence of any reference in those reasons as to the basis upon which a decision was reached upon the exercise of power under s 473DD does not of itself support an inference of an erroneous exercise of the power conferred by that provision. As concerned the ALM new information, the Minister conceded a failure by the Authority to consider par 473DD(b)(ii) but pressed a submission that it may be inferred par 473DD(b)(i) had been addressed in relation to that new information. For that reason, it is necessary to examine this issue further.
Until AUS17, no other aspects of the Reasons were relied upon, however, it should be noted that the Reasons at [9]-[10] examined certain photographs, the submission and a letter addressing a new claim that the Ahwazi Community in Melbourne had separatist sentiments – a matter which may have been relevant to the question whether the second applicant had a political profile. Upon its analysis of the material provided, it found that the content of the photographs and information supplied did not support such a conclusion. Rather, as the Authority observed, the community was a family based organisation that was not aligned with, or pursuing, a political agenda. Importantly, the second applicant’s evidence confirmed this to be the case. So too, the photographs supplied were inherently recreational and social in nature.
The Reasons at [9]-[10] indicate the Authority approached this information on the basis that it was not before the delegate and gave rise to a new claim. The circumstance that the Reasons do not address whether this information could not have been before the delegate is explained by the absence of any explanation being proffered by the applicants why it had not been put to the delegate. Upon the principles considered, absent an explanation, the two consequences which follow are that the Authority was not in error for first identifying that par 473DD(b) has not been satisfied and, upon this conclusion, the prohibition expressed in s 473DD was triggered; namely, it was proscribed from considering the information on review.
Just as the applicants now criticise the Authority for the absence of an express reference to par 473DD(b)(i)-(ii), if they are to be held to the same standard, nothing in their submissions to the Authority expressly did so either. This is not to suggest that the Authority was not required to consider the criteria under par 473DD(b). It is only to draw attention to the prominence which par 473DD(b)(ii) did not play in the second applicant’s case as a basis on which it was being submitted exceptional circumstances were shown such as to justify consideration of the ALM new information on fast track review. This material lacked cogency.
Viewing the matter broadly, to the point where leave was granted to make further submissions arising from AUS17, nothing had been said to indicate that the applicants placed specific reliance upon par 473DD(b)(ii). No reliance was placed upon this alternative criteria at any time. The burden of the written and oral submissions focussed upon why the information had not, but could have been, supplied to the delegate; namely, par 473DD(b)(i). Nothing was said of par 473DD(b)(ii). More precisely, nor was anything said about this information in that part of the submission which addressed whether the first and second applicants had a Profile as an Arab Ahwazi activist. Nothing was said of the second applicant having any particular association with the leader of the Al-Ahawz Liberation Movement. Under that heading, on p.2, the first paragraph addressed the position of the first applicant. Footnote 3, referred to the Liberation of Ahwaz Movement to explain the difference between Arabs living in the Gulf of Iran and Ahwazi Arabs who sought a separate Arab state. No discussion was provided of the current leader or of any association between him and the second applicant. Paragraphs 2-3 of this section addressed the second applicant’s profile and medical issues but contained not reference to this information. Paragraph 4 addressed the proposition that the applicants may not have a sufficiently high profile to be at risk but spoke of the second applicant’s sur place claims by reference to his involvement in the Ahwazi Community group – again, nothing was said in relation to the liberation movement or its leader or of any association with the second applicant. On p.3 in the first paragraph the imputed association with Methaq Abdullah – not the leader of the liberation movement – was pressed on the Authority as new information. In the second paragraph on p.3, the second applicant’s involvement in the 2014 protest was addressed. Then followed discussion of country information in the remainder of pp. 3-4 before a new topic was addressed. Contextually, the first attachments to the submission were the screen shots taken from the Facebook page of Mr Abdullah. Then followed two photographs over a typed statement “Applicant seen in the photos with Mr. Hassan Hilali Chairman of the ‘Arab struggle for the liberation of Ahwaz.’” Those photos are the obvious source of the statement in the Reasons at [9]-[10] dealing with the Authority’s consideration and rejection of this new claim. The paucity of evidence before the Authority readily explains why it reached the conclusion it did that no exceptional circumstances were shown for this new claim.
In all of those circumstances, it seems somewhat difficult to impugn the approach taken in the Reasons. Particularly is that so where nothing was said at any point to indicate to the Authority that reliance was being placed upon par 473DD(b)(ii) and where no submissions, evidence or particulars were supplied providing any explanation as to why the ‘new’ credible information addressed in [9]-[10] of the Reasons had not been advanced earlier.
As the chapeau to par 473DD(b) makes clear, it is for a referred applicant to satisfy the Authority in relation to new information of the kind with which par 473DD(b)(ii) is concerned. Upon the authorities considered, this requires that it answered the tripartite criteria that is: it was ‘credible personal information’; it was not previously known, and; it may have affected consideration of the second applicant’s claims to be a person in respect of whom Australia owed protection obligations (had the information been previously known): AUS17, (2020) 94 ALJR 1007, [8]; Plaintiff M174/2016, [33]-[34]; BDF17 [2021] FCA 401, [75]; EBP19, [2021] FCA 332, [20]-[21]. No submissions were made as to whether personal information relating to the second applicant placed before the Authority was credible and I am not prepared to infer that the Authority did any more in relation to par 473DD(b)(ii) than give a response that was appropriate and proportionate to the circumstances being put before it on this new claim.
The photos and letter referred to in the Reasons at [9]-[10] was personal information. It was ‘capable’ of being believed. On the face of the photos and having regard to the contents of the letter from the Ahwazi Community group, all of that information had previously been known, albeit not by the delegate or Authority. The question whether that information may have affected consideration of the second applicant’s claims to be a person in respect of whom Australia owed protection obligations is to be evaluated upon the principles considered above.
The manner in which the Authority dealt with the issues in [9]-[10] of the Reasons confirm that the Authority undertook an evaluation of whether to exercise the power conferred by s 437DD has been considered above. I consider that the view taken by the Authority was open. More specifically, I agree that it is open to infer, and I do infer, that the Authority considered the ALM new information, against the criterion in par 473DD(b)(i). As it was conceded that the Authority had not assessed this information against the criterion in par 473DD(b)(ii), the failure to do so entailed error. The materiality of that error remains to be considered.
Materiality
Having regard to the concessions made in light of AUS17 and the failure to apply par 473DD(b) in the manner stated in AUS17, it is necessary to address the question of materiality.
Jurisdictional error is not established unless the applicant discharges the burden of proving the historical facts necessary to support an inference that an identified error was material in the requisite sense. An error is not a jurisdictional error unless an applicant proves on the balance of probabilities that the absence of the error could realistically have resulted in a different decision, in the sense of there being a realistic possibility of a different decision. As MZAPC holds, it is only the historical facts that are to be established and accordingly, the onus does not entail a burden of proving “that a different decision would have been made had there been compliance with the condition that was breached.”
Upon the principles considered in MZAPC, [30]-[32], [136], [139], [166], the following may be said. An applicant bears the onus of proving on the balance of probabilities all the historical facts necessary to provide a sufficient foundation for the conclusion, as a matter of inference, or, reasonable conjecture, that had the relevant statutory condition been observed by the decision-maker, there could realistically been a different decision. Materiality is to be assessed in the statutory context in which it arises. In this case, that context is Pt 7AA which ordinarily requires that the de novo review be undertaken “on the papers”, and, subject to the Act, without accepting or requesting new information or interviewing the referred applicant. The procedural duty which accompanies the overriding duty in the conduct of a fast track review is itself qualified by the specific powers conferred by ss 473DC and 473DD. A misunderstanding, or misapplication, of such powers will carry the consequence that they were erroneously exercised. In this case, the power being exercised was that conferred by s 473DD of deciding whether the review applicant had satisfied the Authority that there were exceptional circumstances as to justify any new information being considered on the fast track review.
Where error has been identified in an administrative decision, or the process by which it was made, the fundamental concern upon judicial review is whether such error entailed practical injustice. It is the significance of the failure in the particular case that is to be considered. As the cases illustrate, it is of fundamental importance to place an evaluation of the subject information in the proper context; that is, to recognise what was before the decision-maker, both in terms of claims and evidence. It is in this context, and not in some other hypothetical universe, that the court is concerned to evaluate whether any practical injustice was occasioned by the error. Within that environment, the nature and cogency of the material and its place in the claims being made will inform an evaluation of whether the error was of sufficient significance to support a conclusion the error should be characterised as being jurisdictional.
The question to be considered is whether, on the facts existing before the decision-maker, objectively, compliance with the condition that has been breached could realistically have resulted in a different decision. The assessment is to be made in a ‘backward looking’ manner which examines the material that was before the decision-maker. The court is entitled, both to consider what was, and what was not, before the decision-maker including submissions. Here, an error will not be jurisdictional unless it is concluded that, had there been compliance, the information could realistically have resulted in a different decision whether exceptional circumstances were shown as to justify the inclusion of any ‘new’ information upon review.
If information, evidence or material is objectively of marginal significance, the court may properly conclude that the failure to address it had no material effect on the decision making process. For that reason also, the court is entitled to consider the nature and cogency of the material, together with its place in an assessment of the claims, in deciding whether the error is of such significance as to be regarded as jurisdictional in nature.
Submissions
The applicants submitted that the new information had the capacity to affect the Authority’s findings in relation to the second applicant’s political profile, and thereby affect its conclusion in relation to the applicants’ application, in overlapping ways:
a) first, it was said that the new information comprised in Mr Abdullah’s Facebook profile may have imbued the group Arabs for Ahwaz Australia and the second applicant’s involvement with the group with greater political significance. Further, it was said that if it had received Mr Abdullah’s Facebook profile and considered it in combination with the second applicant’s demonstrated association with Mr Abdullah and the group Arabs for Ahwaz Australia, there was a possibility the Authority might have formed a different conclusion in relation to the second applicant’s political profile in Iran.
b)secondly, it was said that the new information which tended to prove that the videos were posted publicly to Facebook was itself sufficient to imbue the second applicant’s activities with political significance. The public and transnational nature of Facebook and other Western social media was said to blur the distinction between private political opinion and public political broadcast. It was said social media may plausibly lend political or activist qualities to the posting of even mere ‘cultural’ content. It was submitted that had the Authority received the new information and accepted that the videos were posted publicly to Facebook, there remained a possibility that the Authority may have accepted that the second applicant’s political profile arising from activities since leaving Iran was such that he would face a real chance of harm on return;
c)thirdly, as to the ALM new information, it was said that it ought to have informed the manner in which the Authority considered the issue of exceptional circumstances and “nevertheless rationally affected the probability that the second applicant was involved in Ahwazi separatist politics in Australia.”
It was submitted that for those reasons, the Authority’s error had been material, and so jurisdictional, in that, there was a possibility that if the criterion in s 473DD had been properly applied, the Authority would have received and considered the new information, and upon doing so it would have reached a different conclusion on the review.
The Minister contended that it was dispositive of the issue of materiality that the Authority had considered and concluded the new information lacked probative value. It was further submitted that it could not sensibly be suggested that, had the Authority considered this “new information”, it could have realistically resulted in a different decision: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, [45].
Resolution
An error in applying the requirements of s 473DD, in or of itself, establishes a material error that is jurisdictional in character. Nothing in AUS17, displaces the holding in Plaintiff M174 that the requirements of par 473DD(a)-(b) are cumulative. Nor does it remove the requirement in par 473DD(a) that exceptional circumstances must be shown. Rather, it holds that either or both of pars 473DD(b)(i)-(ii) must be satisfied before attention is given to par 473DD(a).
The Authority gave substantive consideration to the matters now being advanced on judicial review at each of [3]-[4], [7]-[8] and [9]-[10] respectively. In my view, the end result for the consideration of par 473DD(a) is that there was no realistic possibility either the Abdullah new information or the ALM new information would have been considered for the purposes of the de novo review. The information was objectively of marginal significance.
In its disposition of the second applicant’s claim to fear harm in Iran for political reasons, the Authority concluded his activities in Australia were cultural rather than political or activist. It found that his involvement in groups in Australia was low-level and insufficient to give him a political profile in Iran: [67]. Those views were reached in light of the applicant’s evidence before the delegate accepting they had no involvement in politics before leaving Iran.
As to the Abdullah new information, I agree that the Authority’s conclusion this information was speculative confirms that it could have had no difference on the outcome to the exercise of power under s 473DD had this been considered on review. In any event, the information was closely considered in a manner that indicates this new information was not material in the requisite sense as to warrant a conclusion that any error in its decision making process under s 473DD would have been of such magnitude as to be jurisdictional in nature. I cannot see a realistic possibility of there being a different result under par 473DD(a) had the material being relied upon been passed through the filter of pars 473DD(b)(i) or (ii) as is required.
As to the ALM new information, I also consider it was immaterial in the necessary sense. I have examined that material and submissions in some detail above. This was undertaken in part to demonstrate that the second applicant’s supposed association with the Al-Ahwaz Liberation Movement or its new leader assumed no prominence in the submission to the Authority at all. Conversely, the Reasons at [9]-[10] confirm that the Authority must have examined the materials supplied with that submission. That is because it was only by reference to the typed information beneath the two photos in question that it was possible to state that the second applicant could be identified in two undated photos with Hassan Hilalli in a social setting. The photos said nothing to support a conclusion the second applicant had a political profile in Australia or otherwise. The letter from the Ahwazi Community group repeatedly affirmed that the group was inherently a community and socially based group. The second applicant’s evidence was to the same effect. It was hardly probative of a new claim and one that bore no prominence in the applicants’ submission. The circumstance that persons comprising such a group might retain some interest in the politics of their country of origin is unremarkable. To recognise as much is merely to recognise the distinction between such passing interest on the one hand from the degree of involvement to establish a political profile on the other.

I do not accept that error in applying par 473DD(b)(i) or (ii) to the ALM new information could realistically have infected consideration by the Authority of whether it was satisfied of exceptional circumstances as required by par 473DD(a). Such error as was conceded would have played no part in such an assessment.
Upon my examination of the Reasons, the materials in the court book and in particular, their submission to the Authority in support of the admission of new information, despite conceded error, it did not invalidate the decision made under s 473DD.
Conclusion
For the reasons above, the application should be dismissed.

I certify that the preceding one hundred and fifty-eight (158) numbered paragraphs are a true copy of the Reasons for Judgment of Judge A Kelly.
Associate:
Dated: 16 September 2021
SCHEDULE OF PARTIES

MLG 2549 of 2018

Applicants

First Applicant

EJK18

Second Applicant

EJL18

Third Applicant

ELM18

Fourth Applicant:

EJN18

Fifth Applicant:

EJO18

Sixth Applicant:

EJP18

File number(s):		MLG 2549 of 2018
Judgment of:		JUDGE A KELLY
Date of judgment:		16 September 2021
Catchwords:		MIGRATION – Fast track review – whether Authority had misconstrued or misapplied s 473DD of Migration Act 1958 (Cth) – whether new information – whether Authority failed properly to exercise specific power conferred by s 473DD and thereby failed in exercise of procedural duty in deciding whether to consider additional information in the conduct of de novo fast track review – where parties make further submissions following delivery of AUS17 v Minister for Immigration and Border Protection (2020) 94 ALJR 1007 – whether error material – applicable principles – application dismissed. PRACTICE & PROCEDURE – Fast track review – where applicants seek to further amend ground of review following delivery of AUS17 v Minister for Immigration and Border Protection (2020) 94 ALJR 1007 – where amendment is in part appropriate – where Court is entitled to insist on judicial review that parties are confined to the ground advanced – where proposed amendment seeks to expand review on an issue not raised at any earlier time – where no explanation for failure to raise earlier – where Court entitled to infer amended ground represented the basis on which judicial review was to be sought – application to further amend refused.
Legislation:		Migration Act 1958 (Cth), ss 36, 65, 473CA, 473CB, 473CC, 473DA, 473DB, 473DC, 473DD, 473DE, 473DF, 473EA, 473FA, 473FB
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 AGK17 v Minister for Immigration and Border Protection [2020] FCA 668 Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 AQU17 v Minister for Immigration and Border Protection (2018) 162 ALD 442 AUH17 v Minister for Immigration and Border Protection [2018] FCA 388 AUS17 v Minister for Immigration and Border Protection (2020) 94 ALJR 1007 AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503 BDF17 v Minister for Immigration and Border Protection [2018] FCCA 2095 BNB17 v Minister for Immigration and Border Protection [2020] FCA 304 BVD17 v Minister for Immigration and Border Protection (2018) 261 FCR 35 BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29 BVZ16 v Minister for Immigration and Border Protection (2017) 254 FCR 221 BXT17 v Minister for Home Affairs [2021] FCAFC 9 BYA17 v Minister for Immigration and Border Protection (2019) 269 FCR 94 CAQ17 v Minister for Immigration and Border Protection (2019) 274 FCR 477 CCR18 v Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 9 Checuti v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 98 CPP17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs(No 2) [2021] FCA 199 CPX16 v Minister for Immigration and Border Protection [2019] FCA 1164 CXB20 v Minister for Home Affairs [2020] FCA 1667 DBE16 v Minister for Immigration and Border Protection [2017] FCA 942 DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551 DPI17 v Minister for Home Affairs (2019) 269 FCR 134 DVO16 v Minister for Immigration and Border Protection (2021) 95 ALJR 375 EBP19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 332 ELQ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 27 EMJ17 v Minister for Immigration and Border Protection [2018] FCA 1462 Minister for Home Affairs v DUA16 (2020) 95 ALJR 54 Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594 Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111 Minister for Immigration and Border Protection v CQW17 (2018) 264 FCR 249 Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AWT19 [2021] FCAFC 58 MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 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
Division:		Division 2 General Federal Law
Number of paragraphs:		158
Date of last submission:		17 May 2021
Date of hearing:		13 August 2020
Place:		Melbourne
Counsel for the Applicants:		Mr A. White
Solicitor for the Applicants:		A.R. Law Services
Counsel for the Respondents:		Mr J. Barrington
Solicitor for the Respondents:		Mills Oakley

ORDER MADE BY:	JUDGE A KELLY
DATE OF ORDER:	16 SEPTEMBER 2021

MLG 2549 of 2018
Applicants
First Applicant	EJK18
Second Applicant	EJL18
Third Applicant	ELM18
Fourth Applicant:	EJN18
Fifth Applicant:	EJO18
Sixth Applicant:	EJP18