Ejk18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FCA 713
•22 June 2022
FEDERAL COURT OF AUSTRALIA
EJK18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 713
Appeal from: EJK18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 50 File number: VID 551 of 2021 Judgment of: O'BRYAN J Date of judgment: 22 June 2022 Catchwords: MIGRATION – appeal from Federal Circuit Court of Australia – where Immigration Assessment Authority (IAA) affirmed a decision of a delegate of the Minister refusing to grant the appellants a Safe Haven Enterprise visa – where Minister conceded that IAA erred in application of s 473DD to new information provided by the appellants – whether error was material – appeal dismissed Legislation: Federal Court of Australia Act1976 (Cth) s 24(1)(d)
Migration Act 1958 (Cth) ss 473DD, 476Cases cited: AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494
Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123
House v The King (1936) 55 CLR 499
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 (2020) 171 ALD 477
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 390 ALR 590
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 49 Date of hearing: 6 April 2022 Counsel for the Appellants: J Tito Solicitor for the Appellants: AR Law Services Counsel for the First Respondent: J Barrington Solicitor for the First Respondent: Mills Oakley
ORDERS
VID 551 of 2021 BETWEEN: EJK18
First Appellant
EJL18
Second Appellant
EJM18 (and others named in the Schedule)
Third Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
O'BRYAN J
DATE OF ORDER:
22 JUNE 2022
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellants pay the first respondent’s costs of the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
O’BRYAN J:
Introduction
This is an appeal from a decision of the Federal Circuit and Family Court of Australia (Division 2) (Federal Circuit Court) made on 16 September 2021 dismissing an application for judicial review of a decision of the Immigration Assessment Authority (IAA) made under Pt 7AA of the Migration Act 1958 (Cth) (Act) on 16 August 2018. The IAA had affirmed a decision of a delegate of the first respondent (Minister) refusing to grant the appellants a Safe Haven Enterprise (subclass 790) visa (SHEV) pursuant to s 65 of the Act.
The appellants are citizens of Iran and of Ahwazi Arab ethnicity. They are a family comprising a mother (first appellant), father (second appellant) and four children (third to sixth appellants). The decision of the Federal Circuit Court, and this appeal, relates to the claims for protection advanced by the second appellant.
The application to the Federal Circuit Court for judicial review was made under s 476 of the Act. Subject to various exceptions (which are not presently applicable), s 476 grants the Federal Circuit Court the same original jurisdiction in relation to migration decisions as the High Court has under para 75(v) of the Constitution. As such, review by the Federal Circuit Court was confined to jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476.
The appeal from the decision of the Federal Circuit Court is by way of rehearing under s 24(1)(d) of the Federal Court of Australia Act1976 (Cth). Accordingly, the Court must determine whether the Federal Circuit Court was correct to find that the decision of the IAA was not affected by jurisdictional error: Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541.
By their notice of appeal filed on 4 November 2021, the appellants advanced two grounds of appeal in the following terms (omitting particulars):
1.The Federal Circuit Court erred by failing to find that the Immigration Assessment Authority (Authority) fell into jurisdictional error by misconstruing and/or misapplying s 473DD of the Migration Act 1958 (Cth) (Act) in respect of the receipt of new information in the form of an assertion that video footage showing the Second Appellant attending a meeting of Arabs for Ahwaz Australia was posted publicly to Facebook, a link to the relevant Facebook profile and accompanying computer screenshots of the footage having been posted.
2.The Federal Circuit Court erred by failing to find that the Immigration Assessment Authority (Authority) fell into jurisdictional error by misconstruing and/or misapplying s 473DD of the Migration Act 1958 (Cth) (Act) in respect of the receipt of new information in the form of photographs of the Second Appellant and letter in support of the Second Appellant's political involvement.
As can be seen, both grounds of appeal concern s 473DD of the Act which provides as follows:
473DD Considering new information in exceptional circumstances
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment 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.
For the reasons that follow, I dismiss the appeal.
Background
The following matters of background have been extracted from the decision of the primary judge (at [4]-[10]).
The appellants 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 appellants made a combined application for a SHEV, the children relying upon their parents’ claims for protection. Relevantly for this appeal, the second appellant claimed that, since arriving in Australia, he had attended meetings and protests supporting Ahwazi Arab rights. The second appellant provided video evidence to the delegate supporting his attendance at a meeting held by Arabs for Ahwaz Australia on 11 to 12 November 2017 (the November 2017 meeting). The second appellant submitted that the meeting was held to mourn the loss of Ahmad Mola Nissi, an Arab rights activist, who was killed in the Netherlands on 9 November 2017.
On 18 April 2018, the Minister’s delegate refused the appellants’ application for visas. Relevantly, the delegate considered the second appellant’s claims to fear harm from his attendance at meetings and protests supporting Ahwazi rights. The delegate accepted that the second appellant attended the November 2017 meeting as claimed, but concluded that, because the meeting was held in a private and closed room, it was not likely that his attendance would come to the attention of the Iranian authorities.
In accordance with s 473CA of the Act, the delegate’s decision was referred to the IAA for review on 23 April 2018.
IAA Decision
On 18 June 2018, the appellants’ migration agent made submissions to the IAA. In relation to the second appellant’s claims of supporting Ahwazi Arab rights, including his attendance at the November 2017 meeting, the submission stated as follows (the second appellant is referred to as “Applicant 2”):
… Since arriving in Australia Applicant 2 has been able to freely express his views and has joined the Arab Ahwazi Community group. We submit that the delegate did not properly take into account this aspect of his profile and the repercussions he and his families would face upon return to Iran as a result. 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.4 These video clips are in the public domain and can be accessed by anyone including Iranian intelligence officers. There exists an abundance of country information in relation to the Iranian authorities’ cyber security activities. The US Department of State (USDOS) in March 2017 on human rights practices in 2016, reported that Iranian authorities
“monitored private online communications” and “collected personally identifiable information in connection with citizens’ peaceful expression of political, religious, or ideological opinion or beliefs”.
The report further stated
Government organizations, including the Basij “Cyber Council,” the Cyber Police, and the Cyber Army, which observers presumed to be controlled by the IRGC ... especially targeted citizens’ activities on social networking websites officially banned by the Committee in Charge of Determining Offensive Content, such as Facebook, Twitter, YouTube, and Flickr ...
The Applicant explains that in his involvement in the 2014 protest outside of the Iranian embassy in Canberra he tried to cover his face in order to protect his family who are still in Iran. As he stated in his interview due to his past experiences it has taken him some time to build up the courage to openly advocate his political views which he does now. Throughout his involvement with the Ahwazi Community Applicant 2 has built close relationships with various high-profile members. In support of these claims he has provide further evidence by way of images of himself alongside the new leader of the Al-Ahwaz Liberation Movement (ALM) Mr. Hassan Hilali Chairman of the ‘Arab struggle for the liberation of Ahwaz’. Me [sic] Hilali has replaced the previous Arab Iranian political activist Ahmad Maula Abu Nahd who was gunned down in front of his residence in the Hague by unknown assailants. Mr Al Hilali is an opposition leader who is quite outspoken about the Iranian government. The Islamic Republic of Iran considers the ALM a terrorist organization and the group itself considers armed struggle justified. We refer the decision maker to some of the links and photo images in this regard. We also refer the decision maker to the letter from the Arab Ahwazi group confirming the Applicant’s participation in the group. Of note on the letter head is the Ahwazi Arab logo and flag which clearly suggests the separatist sentiment within the group.
Footnote 4 in the above submission contained the URL for the Facebook page of Mr Methaq Abdullah, but the content of the Facebook page was not reproduced in the submission other than by way of two computer screenshots of the Facebook page. Each of the screenshots displayed a “still” of a video clip of the November 2017 meeting which was able to be viewed on the Facebook page (which video clips had previously been submitted to the delegate). The video clip in the first screenshot had been shared some 16 times and had been viewed some 670 times. The video clip in the second screenshot had been shared some 18 times and had been viewed some 950 times. The still of each video showed moments when the second appellant was in view (in the first video, 53 seconds from the end of the video and in the second video, 1 minute and 8 seconds from the end of the video).
The submissions also included photographs of the second appellant in the company of Mr Hassan Hilali and a letter in support of his involvement in the Ahwazi community.
The IAA considered the appellants’ submission and information and, relevantly, stated the following conclusions as to the use of that material by the IAA:
Information before the IAA
2.I have had regard to the material given by the Secretary under s.473CB of the Migration Act 1958 (the Act) (the review material).
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.
…
Applicant 2’s political profile
7. 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.
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.
9.Other photographs provided are of Applicant 2 alongside the new leader of the Al-Ahwaz Liberation Movement. The submission states Applicant 2 has built close relationships with various high-profile political members and states the new leader, Mr Hassan Hilali, is an opposition leader who is quite outspoken about the Iranian government. The claim that Applicant 2 has built close relationships with various high-profile political members of the Ahwaz community was not before the delegate and is new information. A letter on the letterhead of the Ahwazi Community in Melbourne Vic has also been provided. The letter confirms that Applicant 2 is a member of the community and an active person in the Ahwazian community who always attends the community’s programs. The submission to the IAA draws attention to the Ahwazi Arab logo and flag which “clearly suggests the separatist sentiment” within the group. The claim that Applicant 2 is an active member of the Ahwazi community in Melbourne was before the delegate and is not new information. However, the claim that the Ahwazi community in Melbourne has separatist sentiments was not before the delegate and is new information.
10.Both the letter and the photographs are undated. Applicant 2 told the delegate in his SHEV interview that he attended family gatherings for the Ahwazi community in Melbourne and referred to the meeting when they commemorated the leader of a protest in Holland. He did not state he was involved with the Al-Ahwaz Liberation Movement, or that he was close to Mr Hilali or the person who replaced the killed leader, nor that the Ahwazi Community in Melbourne were pro-separatist. I have accepted that Applicant 2 attended meetings of the Ahwazi Community in Melbourne. However, I have some reservations about the claim that he is close to Mr Hassan Hilali. The two photographs provided of the applicant with Mr Hilali were taken outside in what appear to be tourist spots. The applicant and the two others pictured, one of whom I accept is Mr Hilali, are dressed casually and there is no indication that the occasion for the photographs was anything other than recreational. Applicant 2’s evidence is that he is a member of the Ahwazi community in Melbourne and the photographs strike me as typical of a person taking a visitor to well-known tourist spots. They are not, in my view, indicative that Applicant 2 has a political profile or that he is close in a political sense to Mr Hilali. Beyond the assertion that the flag on the letterhead of the Ahwazi Community in Melbourne Vic is pro-separatist, there is nothing on the face of the letter to indicate that it is a pro-separatist organisation. The letter itself repeatedly emphasises that it is a community organisation and Applicant 2’s evidence to the delegate supports this – he did not suggest the organisation had a political agenda; he said they did not have formal meetings but they had family gatherings which he attended. Overall, I am not satisfied that exceptional circumstances exist to justify consideration of this new information.
In respect of the second appellant’s claims concerning his involvement with the Ahwazi community in Melbourne, the IAA made the following findings:
46. The claim that he has attended semi-regular meetings of an Ahwazi group was made for the first time in his SHEV interview. He said it was not a formal meeting but more like a family gathering every two to three months and when the leader of a protest was killed in Holland, they had a ceremony for him. He gave the name of the group he participated in as “Freedom Seekers of Ahwaz”.
47. The other video footage submitted by the applicant is said to be of an “Arabs for Ahwaz Australia” meeting held on 11-12 November 2017 in Melbourne. His representative states the meeting was held to mourn the loss of an Arab rights activist who was killed in the Netherlands on 9 November 2017. His representative submits the applicant is clearly identifiable as the camera, which largely focuses on the speaker, pans around the room.
48. I accept that the applicant attended this meeting to commemorate the death of an Arab rights activist in the Netherlands. I am also willing to accept that he attends family gatherings of Ahwazis every few months. With the exception of the meeting in November 2017, however, on his evidence the meetings he attends are not politically orientated but more in the way of social gatherings for Ahwazi families and I do not accept that the applicant is politically active in Australia or that he has a political profile on the basis of these gatherings or the commemorative meeting in November last year.
…
67.I accept that Applicant 2 is a member of the Ahwazi community in Melbourne and has attended what he described as ‘family gatherings’ organised by the community group from time to time. He has, however, not claimed or provided evidence that he played any type of prominent or leadership role in that group. His description of the group and its meetings, in any case, tends to indicate that it is a cultural rather than a political or activist group. I also accept he attended the Arabs for Ahwaz meeting in November 2017 and that there is video footage posted of the meeting which could identify the applicant. 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. Furthermore, 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. I have not accepted that Applicant 2 attended a demonstration in Canberra in 2014 in support of Ahwazi rights. However, even if he did, I am satisfied that he would not be identifiable. On my findings, the applicant is not otherwise a person of interest to the Iranian authorities and I consider there is no more than a remote chance that the authorities in Iran would identify and harm him in relation to his brief, low-level political activity in Australia. He has not claimed to have been involved in any other political or protest activity. The country information before me indicates a certain level of political unrest and activism among Ahwazis (see below). However, on the evidence before me I am not satisfied he has any intention of, or interest in, being politically active in Iran in the reasonably foreseeable future. I am similarly satisfied that Applicant 2 is not at risk of harm if he returns to Iran on the basis of his involvement with the Ahwazi community in Australia.
Decision of the Federal Circuit Court
The appellants applied to the Federal Circuit Court for judicial review of the IAA’s decision. By their amended application, the appellants advanced a single ground of review, that the IAA misconstrued and/or misapplied s 473DD(a) of the Act in respect of the receipt of new information. The particulars to that ground referred to the new information provided by the appellants to the IAA concerning the November 2017 meeting. The appellants identified the new information as:
(a)an assertion that video footage showing the second appellant attending a meeting of Arabs for Ahwaz Australia was posted publicly to Facebook by Ahwazi Arab political and media activist, Methaq Abdullah;
(b)a link to Methaq Abdullah’s Facebook profile; and
(c)accompanying computer screenshots of the footage having been posted.
The new information identified in the amended application was the subject of the IAA’s reasons at [7] and [8], reproduced above, and was referred to by the primary judge as the Abdullah new information.
The hearing before the Federal Circuit Court occurred on 13 August 2020. However, on 14 October 2020, the High Court delivered judgment in AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494 (AUS17) which concerned the construction and operation of s 473DD of the Act. Based on the High Court’s judgment in AUS17, the appellants sought leave to re-open their case and further amend their application in two respects. First, the appellants sought leave to expand the ground of jurisdictional error to impugn also the IAA’s consideration of the new information concerning the second appellant’s relationship with the leader of the Al-Ahwaz Liberation Movement, Mr Hassan Hilali (PJ at [2]). That information is the subject of the IAA’s reasons at [9] and [10], also reproduced above, and was referred to by the primary judge as the ALM new information. Second, the appellants sought leave to allege error grounded upon a failure of the IAA to apply properly each of paras (a) and (b) of s 473DD, in the manner explained by the High Court in AUS17. The parties were given leave to file further submissions in respect of that application and the High Court’s decision in AUS17.
The primary judge refused the appellants’ application for leave to further amend their application to impugn the IAA’s consideration of the ALM new information, but allowed the application for leave to allege error grounded upon a failure of the IAA to apply properly each of paras (a) and (b) of s 473DD in respect of the Abdullah new information (PJ at [2], [118]-[128]). Against the risk that he should be found to have erred in refusing leave, the primary judge nevertheless made findings in respect of the application to impugn the IAA’s consideration of the ALM new information (PJ at [128]).
In the supplementary submissions that were filed post-hearing, the Minister conceded that the IAA had erred in the manner in which it applied s 473DD to both categories of new information addressed in the IAA reasons at [7]-[8] and [9]-[10], by failing to consider the requirements in para (b) of s 473DD (PJ at [84], [130], [132], [141]). That concession was appropriate in light of the High Court’s observations in AUS17 (at [11]) that:
Logic and policy … demand that the Authority assess such new information as it might obtain from the referred applicant first against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and only then against the criterion specified in s 473DD(a). … If either the criterion specified in s 473DD(b)(i) or the criterion specified in s 473DD(b)(ii) is met, that is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a). If both the criterion specified in s 473DD(b)(i) and the criterion specified in s 473DD(b)(ii) are met, that too is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a) and which must heighten the prospect of that criterion being met.
It was common ground before the primary judge that the IAA’s error would be jurisdictional if material (PJ at [64], [65], [83], [84], [131], [132] and [142]-[157]).
The primary judge ultimately concluded that the IAA’s error in applying s 473DD to both categories of new information was not material and therefore not jurisdictional. The primary judge reasoned as follows:
152 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.
153 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.
154 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.
155 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.
156 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.
157 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.
Issues raised on the appeal
As set out earlier, by their notice of appeal, the appellants contend that the primary judge erred by failing to find that the IAA fell into jurisdictional error by misconstruing and/or misapplying s 473DD in respect of the receipt of the Abdullah new information and the ALM new information.
The appellants’ notice of appeal failed to recognise that, in respect of the ALM new information, the primary judge refused leave for the appellants to amend their application for judicial review to advance that category of new information as a ground of review. Strictly, any challenge to the judgment below in respect of that category of information requires the appellants to appeal the refusal of leave to amend. As that decision was discretionary, any such appeal would require the appellants to establish error according to the principles in House v The King (1936) 55 CLR 499. By the Minister’s written submissions and confirmed during the hearing of the appeal, the Minister informed the Court that he did not wish to take any point with respect to the formulation of the appellants’ appeal, and was content to proceed as if the Federal Circuit Court had granted leave to the appellants to amend their application for judicial review to rely on the ALM new information as a ground of review.
In those circumstances, the only question that arises on the appeal is as follows: in circumstances where the Minister conceded that the IAA erred in applying s 473DD to the Abdullah new information and the ALM new information, did the primary judge err in concluding that the error was immaterial to the IAA’s decision and therefore not jurisdictional.
There was no disagreement between the parties as to the applicable principles governing the question whether the error was material. Each of the parties relied on the explication of the applicable principles by the majority (Kiefel CJ, Gageler, Keane and Gleeson JJ) in MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 390 ALR 590 (MZAPC), affirming the conclusions stated in Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 (Hossain) and Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 (SZMTA). Those principles can be summarised as follows:
(a)Non-compliance with an express or implied statutory condition of a conferral of statutory decision-making authority can, but need not, result in a decision that exceeds the limits of the decision-making authority conferred by statute. Whether, and if so in what circumstances, non-compliance results in a decision that exceeds the limits of the decision-making authority conferred by the statute is itself a question of statutory interpretation (MZAPC at [30]).
(b)A statute conferring decision-making authority is not ordinarily to be interpreted as denying legal force to every decision made in breach of a condition which the statute expressly or impliedly requires to be observed in the course of a decision-making process. The statute is instead ordinarily to be interpreted as incorporating a threshold of materiality in the event of non-compliance (MZAPC at [31]).
(c)A breach of a condition is material to a decision only if compliance could realistically have resulted in a different decision (MZAPC at [35] and SZMTA at [45]).
(d)The counterfactual question of whether the decision that was in fact made could have been different had there been compliance with the condition that was in fact breached cannot be answered without determining the basal factual question of how the decision that was in fact made was in fact made. Whether the decision that was in fact made could have been different had the condition been complied with falls to be determined as a matter of reasonable conjecture within the parameters set by an analysis of what occurred in the making of the decision (which is to be determined on the balance of probabilities by inferences drawn from the totality of the evidence) (MZAPC at [38]).
(e)Bearing the overall onus of proving jurisdictional error, the plaintiff in an application for judicial review must bear the onus of proving on the balance of probabilities all the historical facts necessary to sustain the requisite reasonable conjecture. The burden of the plaintiff is not to prove on the balance of probabilities that a different decision would have been made had there been compliance with the condition that was breached. But the burden of the plaintiff is to prove on the balance of probabilities the historical facts necessary to enable the court to be satisfied of the realistic possibility that a different decision could have been made had there been compliance with that condition (MZAPC at [35] and [39] and SZMTA at [46]).
(f)A court called upon to determine whether jurisdictional error has occurred must be careful not to assume the function of the decision-maker. Faced with a procedural irregularity having been shown to have occurred in a decision-making process, the court is nevertheless in each case charged with the responsibility of determining for itself whether the result in fact arrived at by the decision-maker in the decision-making process could realistically have been different had that procedural irregularity not occurred (MZAPC at [51]; SZMTA at [48]).
It can be observed from the passages of the primary judge extracted above that, in assessing the materiality of the conceded error, the primary judge considered whether the error could realistically have affected the IAA’s decision under s 473DD not to take the information into account. Strictly, that is not the applicable principle. The decision that was the subject of judicial review was the decision to refuse the grant of the visa. In that context, an error in the statutory decision making process would not be jurisdictional unless the error could realistically have affected the decision under review: in this case, the decision to refuse the visa (see generally Hossain at [24]-[31] per Kiefel CJ, Gageler and Keane JJ; SZMTA at [3], [38] and [45] per Bell, Gageler and Keane JJ; MZAPC at [2], [29]-[34], [39] per Kiefel CJ, Gageler, Keane and Gleeson JJ). However, it can be accepted that, if the primary judge was correct to conclude that there was no realistic possibility that the conceded error in applying s 473DD would have affected the IAA’s decision to reject the new information under s 473DD, it would follow that there was no realistic possibility that the conceded error would have affected the IAA’s decision to refuse the visa.
On the appeal, the Minister did not advance any submission that s 473DD could not have been satisfied had the IAA applied s 473DD correctly. In circumstances where the Minister did not advance submissions to the contrary, I have little difficulty in concluding that it was at least open to the IAA to be satisfied that the Abdullah new information and the ALM new information was credible personal information in the sense discussed in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 (2020) 171 ALD 477. If the IAA had considered the criteria in para (b), and for that purpose considered the nature of the Abdullah new information and the ALM new information and the circumstances in which and the reasons for which it had been obtained and submitted in response to the delegate’s decision, I consider that it was at least open to the IAA to be satisfied that there were exceptional circumstances for the purposes of para (a).
Accordingly, the issue to be determined is whether, if the Abdullah new information and/or the ALM new information had been taken into account by the IAA, there was a realistic possibility that the IAA’s decision could have been different. As the error concerned both categories of information, it is convenient to consider the arguments with respect to the information concurrently.
Appellants’ submissions
In relation to the Abdullah new information, the appellants submitted that the information provided evidence of two matters. First, the screenshots of the video footage of the November 2017 meeting which appeared on the Facebook page (which videos had previously been submitted to the delegate) show the number of “views”, “shares” and “likes” of the relevant video clips which would have enabled the IAA to form a view about the extent of publicity of that footage. That information was of itself sufficient to imbue the second appellant’s activities with political significance. Second, the appellants provided a link to the Facebook profile of Mr Abdullah. The appellants submitted that Mr Abdullah’s Facebook profile may have imbued the group “Arabs for Ahwaz Australia”, and the second appellant’s involvement with that group, with greater political significance, causing the IAA to form a different conclusion in relation to the second appellant’s political profile in Iran.
In relation to the ALM new information, the appellants submitted that the photographs and letter added weight to the claim that the second appellant was and remains actively involved in separatist politics. The photographs show the second appellant associating with the chairman of the “Arab struggle for the liberation of Ahwaz”. The appellants submitted that it was (and remains) a matter for the IAA to determine what weight that material should be afforded but, as a matter of logic, it cannot be said the materials had no weight. The ALM new information rationally affected the probability that the second appellant was involved in Ahwazi separatist politics in Australia as claimed and thus may reasonably have led the IAA to a different conclusion.
The appellants argued that evidence is cumulative and each piece of information, no matter how slight, bears upon the ultimate conclusion reached and may have affected the IAA’s ultimate conclusion whether there was a risk of the second appellant having a political profile in Iran. The appellants submitted that, had the IAA received the new information, the IAA might have accepted that the second appellant’s political profile arising from activities since leaving Iran was such that he would face a real chance of harm on return. The appellants submitted that for these reasons, the IAA’s error was material.
Minister’s submissions
In relation to the Abdullah new information, the Minister observed that the IAA concluded that there was insufficient information before it to draw any inference that Mr Abdullah’s online profile is such that it is likely that the Iranian authorities would be aware of his activities through his online presence, thereby potentially also identifying the second appellant. Critically, the IAA concluded that the appellants’ submission to that effect was “speculative”. Given that conclusion, the Minister submitted that there was no realistic possibility that that information could have changed the IAA’s decision.
Similarly, in relation to the ALM new information, the Minister observed that the IAA concluded that:
(a)with respect to the photographs, there was no indication that the occasion for the photographs was anything other than recreational and the photographs are not indicative that the second appellant has a political profile or that he is close in a political sense to Mr Hilali; and
(b)with respect to the letter, there was nothing on the face of the letter to indicate that the Ahwazi Community in Melbourne is a pro-separatist organisation; the letter repeatedly emphasised that it is a community organisation, and the second appellant’s own evidence was that the organisation did not have formal meetings but had family gatherings.
Given those conclusions, the Minister submitted that there was no realistic possibility that the IAA might have come to a different conclusion had it considered the ALM new information as part of its substantive review function.
Consideration
As was made clear in SZMTA at [48] and MZAPC at [51], a court called upon to determine whether jurisdictional error has occurred must be careful not to assume the function of the decision-maker. Nevertheless, if a procedural irregularity has occurred in a decision-making process, the court must determine whether the result in fact arrived at by the decision-maker could realistically have been different had that procedural irregularity not occurred. The burden lies with the appellant to persuade the Court of the realistic possibility.
The new information that was excluded from the review by the IAA concerned the question whether the second appellant had engaged in political activities in Australia that would place him at risk of harm if he returns to Iran. In respect of that question, the IAA concluded (at [67]) that the second appellant has some interest in the Ahwazi community and its political issues, but that his involvement is low level and he does not have any significant or high-level involvement such that he would be perceived as having a political profile. The question that arises is whether the Abdullah new information and/or the ALM new information could realistically have affected that conclusion.
The Minister contends that that question must be answered in the negative because the IAA considered the Abdullah new information and the ALM new information and found that the information had no probative value. While it is correct that the IAA considered that the Abdullah new information and the ALM new information had little, if any, probative value, it is important to note that the IAA’s findings were made in the context of considering the new information for the purposes of s 473DD; they were not findings made in the course of the substantive deliberation. Further, it has been conceded that the IAA erred in its application of s 473DD in that it only considered para (a) and did not consider para (b), thus not completing the required analysis under s 473DD. Thus, there is a conceded deficiency in the IAA’s consideration of s 473DD. In these circumstances, it is necessary to consider the IAA’s findings carefully and assess whether the IAA might have made a different assessment of the new information if it had concluded under s 473DD that it was permissible to take that information into account.
Approaching the issue with due care, I nevertheless accept the Minister’s contention that neither the Abdullah new information nor the ALM new information could realistically have affected the IAA’s conclusion.
The Abdullah new information concerned the means and extent of publication of the video footage of the Arabs for Ahwaz meeting in November 2017. One of the claims advanced by the appellants, and which was accepted by the IAA, was that the second appellant attended the November 2017 meeting and that there is video footage posted of the meeting which could identify the second appellant (see at [47]-[48] and [67]). The IAA also appeared to accept that the meeting was held to mourn the loss of an Arab rights activist who was killed in the Netherlands on 9 November 2017 (see at [47]) and that the meeting was “politically orientated” (see at [48]). However, it is apparent (from [67]) that the IAA considered that the second appellant’s attendance at that meeting, of which identifying video footage had been “posted”, was insufficient to give to the second appellant a political profile that would place him at risk of harm in Iran. That conclusion was reached taking account of numerous matters including (set out at [67]):
(a)the second appellant has not claimed or provided evidence that he played any type of prominent or leadership role in the Ahwazi community in Melbourne;
(b)the second appellant’s description of the Ahwazi community and its meetings tends to indicate that it is a cultural rather than a political or activist group;
(c)while the second appellant has some interest in the Ahwazi community and its political issues, his involvement is low level and he does not have any significant or high-level involvement such that he would be perceived as having a political profile;
(d)the second appellant did not have a political profile at the time he left Iran; and
(e)the second appellant 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 Iranian authorities.
Specifically in relation to the video footage of the November 2017 meeting in which the second appellant can be identified as an attendee, the IAA considered (at [7]) the appellants’ submissions that:
(a)the video was able to be downloaded from the Facebook page of Mr Abdullah;
(b)Mr Abdullah was an Arab Ahwazi political and media activist; and
(c)the Iranian authorities monitor social media platforms for expressions of political, religious, or ideological opinion or beliefs.
However, the IAA was not persuaded, on the evidence before it, that Mr Abdullah’s activities or individual profile were such as to make it likely that he would be subject to monitoring by the Iranian authorities (at [8]). That conclusion was reached by the IAA having considered the Abdullah new information for the purposes of applying s 473DD. While it has been conceded that the IAA erred in its approach to s 473DD, there is no reason to think that the IAA’s conclusion about Mr Abdullah’s profile would have differed if it had approached s 473DD correctly, or if it had taken the Abdullah new information into account within s 473DD.
In argument, the appellants submitted that, if the IAA had taken the Abdullah new information into account, it could have searched Mr Abdullah’s Facebook profile and learned of his activities. The difficulty with that submission is that there was no evidence placed before the IAA, and no evidence before the Court, as to the content of Mr Abdullah’s Facebook profile. The profile may have revealed nothing about Mr Abdullah’s activities or political opinions, or may have revealed activities or opinions that had no bearing on the appellants’ claims. The appellants’ submission only serves to highlight that the claims made about Mr Abdullah’s profile were unsupported by any evidence and, for that reason, were not accepted by the IAA.
The appellants also submitted that the screenshots of Mr Abdullah’s Facebook page from which the video was able to be viewed showed the number of “views”, “shares” and “likes” of the video. The appellants argued that that information would have enabled the IAA to form a view about the extent of publication of that video footage. So much may be accepted. However, the fact that the video had been “posted” was accepted by the IAA (at [67]). I infer that, in context, the IAA’s use of the word “posted” means published online. The question in issue was not the posting of the video footage; it was the likelihood that the footage, and specifically the second appellant’s attendance at the November 2017 meeting, would come to the attention of the Iranian authorities. I am not persuaded that there is a realistic possibility that the IAA’s conclusion on that issue could have been different if the IAA had taken into account the information concerning the number of “views”, “shares” and “likes” of the video as depicted on the screenshots of Mr Abdullah’s Facebook page.
For those reasons, I consider that the primary judge was correct to conclude that the IAA’s error in the application of s 473DD to the Abdullah new information was not material and, for that reason, did not constitute jurisdictional error.
Similar reasoning applies to the ALM new information. The IAA concluded that the photographs of the second appellant with Mr Hilali did not indicate that the second appellant has a political profile or that he is close in a political sense to Mr Hilali. The IAA reasoned (at [10]) that the photographs were taken in what appear to be tourist spots; the second appellant and Mr Hilali were dressed casually; and there is no indication that the occasion for the photographs was anything other than recreational. There is no reason to think that the IAA’s reasoning or finding with respect to the photographs would have been any different if the IAA had formally taken the photographs into account in the review. The IAA also concluded that there is nothing on the face of the letter on the letterhead of the Ahwazi Community in Melbourne to indicate that it is a pro-separatist organisation; the letter itself emphasises that it is a community organisation and this was consistent with the evidence of the second appellant. Again, there is no reason to think that that finding would have been any different if the IAA had formally taken the letter into account in the review. It follows, in my view, that the IAA’s error with respect to the application of s 473DD to the ALM new information could not have affected the IAA’s ultimate decision and, for that reason, did not constitute jurisdictional error.
Conclusion
In conclusion, and for the reasons given above, the appeal should be dismissed.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O'Bryan. Associate:
Dated: 22 June 2022
SCHEDULE OF PARTIES
VID 551 of 2021 Appellants
Fourth Appellant:
EJN18
Fifth Appellant:
EJO18
Sixth Appellant:
EJP18
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2