EJU17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 437
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EJU17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 437
File number: MLG 2115 of 2017 Judgment of: JUDGE LADHAMS Date of judgment: 26 May 2023 Catchwords: MIGRATION – application for judicial review of decision of Immigration Assessment Authority – whether Authority failed to apply the real chance and real risk test in assessing whether the applicant met the refugee and complementary protection criteria – whether Authority erred in applying s 473DD of the Migration Act 1958 (Cth) by failing to consider whether new information met the criteria in s 473DD(b)(ii) – whether Authority took an unduly narrow approach to considering whether there were exceptional circumstances to consider new information – jurisdictional error established – writs issued. Legislation: Migration Act 1958 (Cth) ss 5, 36, 473CA, 473DC, 473DD, 476, 477 Cases cited: APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23
AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494; [2020] HCA 37
BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29; [2019] HCA 34
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; [1989] HCA 62
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3
Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505; [2013] FCAFC 33
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559; [1997] HCA 22
Nathanson v Minister for Home Affairs (2022) 403 ALR 398; [2022] HCA 26
SZGTS v Minister for Immigration and Citizenship (2009) 112 ALD 443; [2009] FCA 1353
Division: Division 2 General Federal Law Number of paragraphs: 52 Date of hearing: 22 March 2023 Place: Perth Counsel for the Applicant: Mr M Kenneally Solicitor for the Applicant: Victoria Legal Aid Counsel for the First Respondent: Mr J Barrington Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
MLG 2115 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EJU17
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
JUDGE LADHAMS
DATE OF ORDER:
26 May 2023
THE COURT ORDERS THAT:
1.A writ of certiorari issue to quash the decision of the second respondent made on 29 August 2017.
2.A writ of mandamus issue directed to the second respondent requiring it to reconsider according to law the review referred to it pursuant to s 473CA of the Migration Act 1958 (Cth).
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LADHAMS:
INTRODUCTION
By an application filed under s 476 of the Migration Act 1958 (Cth) (Migration Act), the applicant seeks judicial review of a decision made by the Immigration Assessment Authority (Authority) on 29 August 2017. The Authority affirmed an earlier decision made by a delegate of the Minister not to grant the applicant a protection visa.
The application raises two grounds alleging that:
(a)the Authority failed to properly apply the ‘real chance’ and ‘real risk’ tests in assessing the applicant’s claims to face serious or significant harm on account of his medical conditions, and instead applied a balance of probabilities test; and
(b)the Authority erred in considering whether the new information met the requirements of s 473DD of the Migration Act, because it failed to consider the factors raised in s 473DD(b)(ii) and it took an unduly narrow approach to considering whether exceptional circumstances existed to justify considering the new information, for the purposes of s 473DD(a).
For the reasons explained below, I have found that the applicants have established jurisdictional error in the Authority decision in relation to the Authority’s application of s 473DD of the Migration Act. It follows that the application for judicial review is successful.
BACKGROUND
The applicant is a citizen of Iraq. He entered Australia by sea in May 2013 and is an unauthorised maritime arrival.
On 12 September 2016 the applicant applied for a temporary protection visa. His claims for protection were set out in a statement that accompanied his protection visa application. It is unnecessary to set out all of his claims for the purpose of this judgment, and those that are relevant to the grounds of application are referred to below.
On 13 December 2016 the applicant attended an interview with an officer of the Minister’s Department to discuss his claims for protection. The applicant subsequently provided to the Minister’s Department a written submission dated 3 January 2017 and a number of additional evidentiary documents, including documents relating to his medical conditions.
On 8 March 2017 a delegate of the Minister made the decision not to grant the applicant a protection visa. The matter was then referred to the Authority pursuant to s 473CA of the Migration Act.
On 27 April 2017 the applicant provided to the Authority a submission dated 26 April 2017 and a letter from Vision Australia dated 4 April 2017 (Vision Australia letter).
The Authority affirmed the delegate’s decision on 29 August 2017, finding that the applicant did not meet the criteria in ss 36(2)(a) or 36(2)(aa) of the Migration Act. Those parts of the Authority’s decision that are relevant to the grounds of application are discussed further below.
JUDICIAL REVIEW APPLICATION
The originating application was electronically lodged on 3 October 2017 at 5:02pm AEST in the Melbourne Registry of the Court. Given that it was filed after 4:30pm, it is deemed to have been filed on 4 October 2017,[1] which is one day outside of the period of 35 days from the date of the Authority decision within which an application must ordinarily be filed in accordance with s 477(1) of the Migration Act. The applicant did not originally seek an extension of time. In the course of preparing the judgment in this matter, I formed the preliminary view that the application had been filed outside of the period prescribed by s 477(1) and my associate sent an email to the parties inviting them to consider this issue. The parties provided proposed consent orders to the Court to regularise the filing of the application and on 12 April 2023 I made an Order by consent extending the time period within which the applicant was required to file his application. I thank the parties for their attention to this issue and cooperation in addressing it.
[1] The application was electronically lodged after 4:30pm on 3 October 2017 and is therefore deemed to have been filed on 4 October 2017, pursuant to r 2.05(3) of the Federal Circuit Court Rules 2001 (Cth).
The applicant relies on an amended application filed on 10 February 2023 which raises the following two grounds:
1.The Immigration Assessment Authority (IAA) asked itself the wrong question, in failing to apply the ‘real chance’ or ‘real risk’ test in considering the applicant’s claim that he would face serious or significant harm in the form of not being able to subsist due to disability discrimination.
Particulars
a.The applicant claimed to have a disability as he is legally blind and suffers chronic migraines.
b.The applicant claimed he would face serious or significant harm due to disability discrimination in that he would be unable to subsist.
c.The IAA at [45] found that it was not satisfied the applicant ‘will’ be destitute, or ‘will’ have his capacity to subsist threatened.
d.The IAA did not apply the real chance or real risk test, but instead considered whether it was satisfied the applicant would be unable to subsist.
e. The error is material.
2.The IAA failed to complete its statutory task, or asked itself the wrong question, in considering whether it could consider new information in a letter from Vision Australia.
Particulars
a.The applicant provided new information from Vision Australia regarding the supports he requires because he is legally blind.
b.The IAA at [7] found there were no exceptional circumstances to consider the new information.
c. The IAA in its reasons fell into error as:
i.It adopted a definition of ‘exceptional circumstances’ in s 473DD(a) of the Act as confined to whether there were good reasons the information had not been provided to the delegate of the Minister; and/or
ii.It failed to consider if the new information satisfied s 473DD(b)(ii).
d. The error is material.
The only evidence before the Court is the court book filed on 13 June 2018.
GROUND 1
By ground 1 the applicant asserts that the Authority failed to apply the ‘real chance’ test in assessing whether he met the refugee criterion in s 36(2)(a) of the Migration Act and the ‘real risk’ test in assessing whether he met the complementary protection criterion in s 36(2)(aa) of the Migration Act, in respect of his claim that because of his disability he would face discrimination and be unable to subsist in Iraq.
In Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559; [1997] HCA 22 (Guo), the High Court held that a chance of harm does not need to be established on the balance of probabilities but simply has to be ‘real’, noting that Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; [1989] HCA 62 established that a person can have a well‑founded fear of persecution even though the possibility of the persecution occurring is well below 50%: Guo at [47]-[48]. The ‘real risk’ test has been found to be the same standard as the ‘real chance’ test: Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505; [2013] FCAFC 33 at [245]-[246] (Lander and Gordon JJ), [297] (Besanko and Jagot JJ), [342] (Flick J).
The applicant’s claims based on his medical conditions were articulated when his application was before the delegate in a post-interview submission provided by his representative. This submission included information that the applicant was diagnosed with Retinal Dystrophy in 2013 and has reduced vision to the level of legal blindness, and that he was diagnosed with chronic migraines since 2014. The applicant submitted to the delegate that he feared being unable to subsist due to being a vulnerable person with a significant physical health condition and disability, and being subjected to inhumane treatment due to being put in the position of being destitute with no real family support or income or access to adequate healthcare to treat his serious condition. The applicant also submitted that the level of societal persecution in the form of social and economic hardship, denial of access to basic services and denial of capacity to earn a livelihood all cumulatively threaten his capacity to subsist. The applicant provided information about the lack of medical services in Iraq and discrimination against people with a disability.
The Authority expressed its conclusion in relation to the applicant’s claimed inability to access treatment for his medical conditions in Iraq at [44] and in relation to his claimed fear that he would be denied access to basic services, would not be able to earn a livelihood and that his capacity to subsist would be threatened at [45]. In these paragraphs, the Authority said (emphasis added):
44.The evidence that is available to me does not suggest that the applicant would be unable to access medical treatment for his conditions in Iraq, although he may not receive optimal treatment in comparison to what he receives in Australia, because of the more limited resources which are available in Iraq. However, there is no evidence to suggest that he would be denied treatment, or restricted in his ability to obtain treatment, for any of the reasons in s.5J(1)(a).
45.Nor do I accept he will be denied access to basic services, or his ability to earn a livelihood or his capacity to subsist will be threatened; or that he will be destitute with no real family support or income or access to adequate health care to treat his serious conditions. As discussed earlier, in Iraq the applicant was previously both self-employed and employed in the local government sector for more than six years. The information before me suggests he may also be entitled to apply for some financial benefit and treatment subsidised by the Iraqi government. In addition, the applicant appears to have positive relations with his family, stating that he contacts them fortnightly. He has an adult brother in Australia. I note the applicant formerly lived with both his sister in Basra and his parents in Nasiriyah. I accept that his father has died since he left Iraq and his mother is elderly, however the applicant has seven other adult siblings living in Nasiriyah. I also accept that his siblings may be busy with their own children and living conditions in Iraq, however his siblings have demonstrated a willingness to assist him in the past. That the applicant’s parents were willing to sell their house and allow him to use the deposit to travel to Australia suggests the family has previously been supportive of their disabled son. Apart from teasing by other children and difficulties finding employment that I note did not prove insurmountable, the applicant does not claim to have previously suffered any other harm due to his disabilities. While I have some sympathy for the applicant’s circumstances, I am not satisfied that now or in the reasonably foreseeable future any inadequate treatment or discrimination he may face as a result of his health conditions will rise to the level of serious harm.
The Authority also considered the applicant’s claims based on his medical conditions in its assessment of whether he met the complementary protection criterion in s 36(2)(aa) of the Migration Act, and said at [53]:
I have accepted that the applicant may not receive the high standard of treatment for his Chronic Migraine and Retinal Dystrophy in Iraq that he receives in Australia. However I am not satisfied that the applicant would be unable to access treatment for his medical conditions or that any restriction on his ability to access treatment would constitute serious harm. While I have some sympathy for the applicant’s circumstances, I am satisfied that any limitations in the services available are the result of resourcing issues and policy decisions, and do not reflect the requisite intention to cause pain and suffering, severe pain or suffering or extreme humiliation. Nor would this result in the death penalty, torture or the arbitrary deprivation of life. I am not satisfied on the evidence that if he returned to Iraq the applicant would be at real risk of being subjected to significant harm.
The applicant’s case is that the Authority considered his claim that he would be unable to subsist on the balance of probabilities, rather than applying the real chance test, and that this is evident from the emphasised portion of [45], particularly the finding that it was not satisfied the applicant will be destitute or have his capacity to subsist threatened.
The use of the word ‘will’ at [45], particularly the first sentence, is problematic, but this paragraph needs to be read in the context of the reasons as a whole. The issue to be determined is whether the wording used by the Authority at [45] of its reasons shows that it assessed the harm the applicant may face by applying a balance of probabilities test or, when the reasons are read as a whole, the Authority applied the real chance test despite its unfortunate wording at [45].
An example of a case where the decision-maker used wording reflective of the balance of probabilities test, but was still found to have applied the real chance test, is SZGTS v Minister for Immigration and Citizenship (2009) 112 ALD 443; [2009] FCA 1353 (SZGTS). There the decision-maker made three findings that were said to amount to a failure to apply the ‘real chance’ test. Only the third of these findings is relevant to the present application. That finding was that the decision-maker was ‘not satisfied [the applicant] would be targeted by the Chinese authorities for anything she has done here’: see SZGTS at [24] (emphasis added). The Federal Court (Tracey J) considered that the use of the word ‘would’ was problematic as it suggested the application of a balance of probabilities test. Nevertheless, the Court considered that it was possible to reconcile the use of the word with the application of the real chance test, by having regard to the reasons as a whole: SZGTS at [26].
In the present case, both parties accept that the Authority did not fail to apply the real chance test in relation to the applicant’s other claims for protection. For example:
(c)at [35], the Authority found that chance of the applicant being harmed now or in the reasonably foreseeable future by the Mahdi Army was ‘remote’;
(d)at [38], the Authority was not satisfied that now or in the reasonably foreseeable future there ‘is a real chance’ the applicant will suffer harm from various groups because of his Shia religion; and
(e)at [47], the Authority found that ‘there is only a remote chance’ that now or in the reasonably foreseeable future the applicant will suffer harm as a former asylum seeker, and that it was not satisfied that there was a ‘real chance’ that the applicant will suffer harm as a returning asylum seeker.
The parties draw different significance from the Authority’s application of the real chance test elsewhere in its reasons. Counsel for the applicant submitted that these other express references to the real chance test make the omission at [45] more significant because the Authority’s omission of the real chance test only from the analysis of the claim based on the applicant’s medical condition supports the inference that the Authority did not apply the test in considering that claim. On the other hand, the Minister submitted that the Authority reasons need to be read as a whole, and the Authority correctly applying the real chance test elsewhere in its reasons makes it highly unlikely that the Authority applied some other test to just one of the applicant’s claims.
I accept that the Authority correctly applying the real chance test elsewhere in its reasons suggests that it properly understood the test. That the Authority has shown from its other findings that it correctly understood and applied the real chance elsewhere in its reasons tends to support an inference that the language used in [45] is simply an unfortunate choice of words, rather than a misapplication of the real chance test. While that inference would readily be displaced if there were other features of the reasons that clearly demonstrated a misapplication of the ‘real chance’ test at [45], I do not consider that there are any such features in the Authority’s reasons.
The applicant also referred to the final sentence of [45], in which the Authority expressed its lack of satisfaction that any inadequate treatment or discrimination the applicant may face as a result of his medical conditions would rise to the level of serious harm. The Minister submitted that the Authority in this sentence was not assessing the level of risk, but rather asserting that, whatever the risk, any inadequate treatment or discrimination the applicant may face on his return to Iraq would not involve the type of harm protected by the Migration Act. In response, the Counsel for the applicant submitted that words such as ‘any’ and ‘may’ are an indication that the Authority did not actually make a finding about inadequate treatment or discrimination and does not exclude the possibility that the applicant may face it. The Authority simply bypassed that step and found that the harm would not rise to the level of not being able to subsist and, in so deciding, the Authority was required to apply the real chance test.
I accept the Minister’s submission in relation to the final sentence of [45]. The Authority had in its earlier paragraphs referred to various country information about the treatment of people with disabilities. While it did not in express terms make any finding about the types of treatment or discrimination the applicant may face, the final sentence of [45] is properly understood as a finding that any of the types of treatment and discrimination that had been referred to in its reasons would not meet the definition of serious harm. In my view, the final sentence of [45] was not addressing either the real chance test or the balance of probabilities test because it was not assessing the chance of harm.
The Minister submitted that, in addressing the complementary protection criterion at [53], the Authority correctly applied the ‘real risk’ test after having identified that the ‘real risk’ test and the ‘real chance’ test import the same standard. The Minister submitted that there is no reason to think the Authority had come to a different conclusion on the same claim under the complementary protection and refugee criteria and instead the Court should infer that the Authority applied the same standard to the applicant’s claims based on his medical conditions under both criteria. In response, Counsel for the applicant submitted that this inverts the analysis and that the proper focus should start with the actual reasoning at [45] which is the substantive analysis for disposing of that relevant claim. Further, Counsel for the applicant submitted that there is no express finding about the applicant’s capacity to subsist at [53] in relation to the complementary protection criterion which contains any analysis that suggests the correct test has been applied.
It is unnecessary to address the applicant’s submission about the inversion of the analysis and to consider whether complementary protection reasoning could ever be relied on to support a finding that the decision-maker correctly applied the real chance test in its finding for the purposes of the refugee criterion. The reason for that is because, in any event, I do not accept the Minister’s submission that the reasoning at [53] supports the view that the Authority correctly applied the real chance test at [45], and I do not rely on that submission in reaching my views on the application of the real chance test at [45]. My reasons for this are twofold.
First, in my view, the Authority’s reasoning at [53] does not address the applicant’s claims based on his capacity to subsist and the discrimination that he may face as a person who has a disability. The focus of the reasoning at [53] is on access to treatment. Even if I was to interpret the phrase ‘limitations in the services available’ as extending beyond medical services, that still does not deal with the whole of the applicant’s claim based on the threats to his capacity to subsist.
Second, and more importantly, the Authority’s reasoning at [53] says little if anything about the ‘real risk’ standard that would have any bearing on its application of the ‘real chance’ test at [45]. In my view, the reasoning at [53] focuses on the definition of ‘significant harm’ rather than the standard of ‘real risk’. The only finding that might possibly be interpreted as going to the standard of ‘real risk’ is the Authority’s finding that it was not satisfied that the applicant ‘would be unable to access treatment’. However, this finding suffers from the same problem as the finding at [45] in that it is expressed in absolute terms rather than whether there is a real risk that the applicant would be unable to access treatment. The finding that the Authority was not satisfied that any restriction on the applicant’s ability to access treatment ‘would constitute significant harm’ draws attention to the definition of significant harm, and the two sentences that immediately follow that finding are phrased in a way that reflects the language of the definition of ‘significant harm’ in s 36(2A) and the definitions of ‘torture’ and ‘cruel or inhuman treatment or punishment’ in s 5(1) of the Migration Act. The only reference to ‘real risk’ in [53] is in the final sentence, where the Authority expressed its conclusion that it was not satisfied on the evidence that if he returned to Iraq the applicant ‘would be at real risk of being subjected to significant harm’. However, in circumstances where the balance of the paragraph focused on the definition of significant harm, expressing the conclusion in that way does not indicate that the Authority gave any real consideration to the standard of risk.
Notwithstanding my rejection of the Minister’s submission in relation to the complementary protection reasoning, for the reasons already addressed above, I find that when the Authority reasons are read as a whole, the Authority applied the real chance test in relation to its assessment of the harm the applicant may face as a result of his medical conditions. Ground 1 is therefore not established.
GROUND 2
The issue raised by ground 2 is whether the Authority erred in its application of s 473DD of the Migration Act in respect of the Vision Australia letter by failing to consider whether the new information in the letter met the requirements of s 473DD(b)(ii) of the Migration Act and by taking an unduly narrow approach to considering whether there were exceptional circumstances to justify considering the new information.
The Vision Australia letter relevantly states:
I am writing this letter in support of [the applicant’s] application for immigration. I have known [the applicant] in my capacity as an Orientation and Mobility Specialist at Vision Australia. [The applicant] has been a client of Vision Australia since August 2013. [The applicant’s] vision loss is considered significant and will remain a permanent factor of his life.
Since August 2013, [the applicant] has received the following services from Vision Australia:
•Orientation and Mobility training (O&M – O&M training is aimed at assisting [the applicant] to develop the skills necessary for him to safely and independently access the community.
•Occupational Therapy services (OT) – OT service provision allows [the applicant] to achieve independence in tasks associated with daily living e.g. meal preparation, personal grooming, access to banking and shopping needs etc.
•Adaptive Technology Services (ATS) – ATS support has provided [the applicant] with access to equipment that will enable him to access printed material e.g. CCTV
•Orthoptics – Orthoptics assessment and services have provided [the applicant] with low vision aids/equipment to assist with his day to day needs.
To ensure [the applicant’s] ongoing physical and mental well-being it is essential he have the ability to continue to access services from organisations such as Vision Australia.
When the applicant provided the Vision Australia letter to the Authority, the applicant’s representative submitted that the medical information from Vision Australia was not new information, but rather was only further clarifying information which did not represent new claims. The Authority disagreed with this assessment and considered the Vision Australia letter comprised new information.
The Authority can only consider new information if the requirements of s 473DD are met. That section provides:
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.
The Authority found that the new information did not meet the requirements of s 473DD of the Migration Act and gave reasons for this at [7] of its reasons where it said:
The representative states the medical information contained in the letter from Vision Australia is not new information but further clarifying information, does not represent new claims and displays the applicant’s functional disability. The Vision Australia letter was not before the delegate and in my view is ‘new information’. The letter postdates the delegate’s decision and in that sense it could not have been provided to the delegate before the decision was made. However for the following reasons I am not satisfied that there are exceptional circumstances which justify consideration of the letter. The Vision Australia letter restates the applicant has significant and permanent vision loss and has been provided with services to assist his well-being. Before the delegate, the applicant was represented by the same registered migration agent, who provided a post-interview submission, which addressed the issue of the applicant’s vision impairment and that he had been assisted by Vision Australia. I also note that the Vision Australia letter states the applicant has been their client since August 2013 and it is not apparent why a similar letter could not have been provided earlier, prior to the delegate’s decision. I am not satisfied that there are exceptional circumstances to justify considering this information.
In AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494; [2020] HCA 37 (AUS17), the High Court held that in applying s 473DD in respect of new information provided by an applicant, the proper approach is to first consider the criteria in both s 473DD(b)(i) and (ii), and if either or both of those criteria are met, take into account the findings in relation to those criteria in determining whether there are exceptional circumstances to justify considering the new information for the purposes of s 473DD(a). This can be seen most clearly at [11] and [12] where the High Court said (footnotes omitted):
11.Logic and policy therefore 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 neither of the criteria specified in s 473DD(b)(i) and s 473DD(b)(ii) is met, the Authority is prohibited from taking the new information into account in making its decision on the review. Further assessment of the new information against the criterion specified in s 473DD(a) is redundant. If either of 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.
12.The result, as has been recognised by the Federal Court in numerous other cases, is that 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).
In considering the judgment in AUS17, Markovic J said in APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23 (APH17) at [79]:
As the Minister submits, notwithstanding the plurality’s statement that “logic and policy” demand that the Authority assess new information obtained from a referred applicant first against the criteria in both s 473DD(b)(i) and (ii) and only then against the criterion in s 473DD(a), it is unnecessary for the Authority to engage in any particular formulaic consideration of s 473DD(b). It will be sufficient if, in a particular case, the Court on judicial review is able to infer from the Authority’s reasons that the requisite assessment has occurred. The question is whether the substance of the criteria prescribed by s 473DD(b) has been considered prior to a consideration as to whether “exceptional circumstances” exist for the purposes of s 473DD(a).
In the present case, I accept the applicant’s submission that the Authority did not consider the criteria in s 473DD(b)(ii) of the Migration Act.
As can be seen from [7] of the Authority’s reasons extracted above, the Authority gave three related reasons for not being satisfied that there were exceptional circumstances to justify considering the new information. Those reasons were that:
(a)the Vision Australia letter restates that the applicant has significant and permanent vision loss and has been provided with services to assist his well-being;
(b)the applicant had the same representative before the delegate and had provided a post-interview submission addressing the applicant’s vision impairment and that he had been assisted by Vision Australia; and
(c)the applicant had been a client of Vision Australia since August 2013 and there was no reason why a similar letter could not have been provided earlier.
The applicant submitted that nothing in the Authority’s reasons suggests that it was cognisant of whether the new information was credible, personal, or could have affected the delegate’s assessment of the applicant’s claims. The Minister submitted that the first of the three findings reflects consideration of s 473DD(b)(ii) because, in finding that the letter restates that the applicant has significant and permanent vision loss and has been provided with services to assist his well-being, the Authority was considering whether the information, had it been known, may have affected the delegate’s consideration of the applicant’s claims. The Minister’s submission was that because the Authority merely restated information before the delegate, it was not information which may have affected the delegate’s decision.
I do not accept the Minister’s submission. Counsel for the Minister spent some time at the hearing taking the Court through the information about the applicant’s medical conditions that was before the delegate and I acknowledge that some of the information that was in the Vision Australia letter was before the delegate. However, some of the information in the Vision Australia letter was more detailed and specific than that which was before the delegate. In particular, the Vision Australia letter contained information about the types of assistance that the applicant receives such as adaptive technology services and the orthoptics services, which was not already before the Authority.
I acknowledge that there is no statutory obligation on the Authority to provide reasons for procedural decisions, such as whether new information meets the requirements of s 473DD of the Migration Act: see, for example, BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29; [2019] HCA 34 at [16], [40] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ), [44] (Edelman J). It is appropriate to bear this in mind when I assess the Authority’s reasons and I accept that the Authority’s reasons did not need to be detailed. However, if, by stating that the Vision Australia letter restates that the applicant has significant and permanent vision loss and has been provided with services to assist his well-being, the Authority was turning its mind to whether the new information could have affected the consideration of the applicant’s claims, one would expect at least some acknowledgement that there was more detail in the Vision Australia letter and an indication of any view that the Authority formed as to the effect of the additional detail. For example, the Authority could simply have acknowledged that there was more specific information about the services provided to the applicant but that did not, in its view, materially add to the information already before the Authority.
Instead, the suggestion that the Vision Australia letter restates that the applicant has significant and permanent vision loss and has been provided with services seems to simply be a general summary of the content of the letter without addressing in any way the matters raised by s 473DD(b)(ii) of the Migration Act. None of the three reasons advanced by the Authority for finding that the new information does not meet the requirements of s 473DD of the Migration Act addresses the factors raised by s 473DD(b)(ii).
Having found that the Authority did not consider the criteria in s 473DD(b)(ii), it follows that I also find that the Authority did not take into account the criteria in s 473DD(b)(ii) in its consideration of whether there were exceptional circumstances for the purposes of s 473DD(a). This too is an error: see AUS17 at [11]-[12] (Kiefel CJ, Gageler, Keane and Gordon JJ), [25] (Edelman J).
I also accept the applicant’s submission that the Authority’s consideration of whether there were exceptional circumstances to justify considering the new information was confined to a consideration of whether the information could have been provided earlier, and that this reflects an unduly narrow understanding of what can amount to ‘exceptional circumstances’: BVZ16 v Minister for Immigration and Border Protection (2017) FCR 221; [2017] FCA 958 at [46]-[47].
I then turn to whether the Authority’s error in its approach to s 473DD is material. The applicant submitted that it is material because the Vision Australia letter suggested that the applicant had received, and may still require, services in order to safely and independently access the community and to achieve independence in tasks associated with daily living. This letter indicated a very high level of incapacity, whereas the medical evidence that was before the delegate contained no specific information regarding the level of the applicant’s functional incapacity. The applicant further submitted that at [45] the Authority rejected the applicant’s claim that his ability to earn a livelihood or his capacity to subsist would be threatened based on the observation that the applicant had previously been self-employed and employed in the local government sector for more than six years in Iraq. The applicant submitted that if the Authority had considered the Vision Australia letter it might have done any number of things, including accept that his current condition now rendered him incapable of working in any capacity if he returned to Iraq, or to be concerned that the applicant’s condition had significantly worsened since his time in Iraq and exercise its power under s 473DC to get more information regarding the applicant’s functional capacity.
The Minister submitted that any error in the approach to s 473DD was not material because if the new information satisfied the requirements of s 473DD, it would have been assessed against the whole of the information before the Authority. The Court must be alive to the potential for a document or information, objectively evaluated, to have been of such marginal significance to the issues which arose in the review that the Authority’s failure to take into account could not really realistically have affected the result, relying on Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 at [48].
The Minister submitted that the Vision Australia was, objectively evaluated, of marginal significance because much of the information contained in the letter was already before the Authority in a different form. Any additional information was immaterial. There was already information before the Authority, which the Authority accepted, to the effect that the applicant suffered vision issues and was legally blind, the applicant was receiving specialist treatment for these conditions in Australia and the applicant was being assisted by Vision Australia, including by helping him access the community and to get places. The Minister also submitted that the applicant’s submission that the Authority’s finding rested on him previously being self-employed and employed in the local government sector some six years ago was an incomplete reading of the Authority’s reasons. The Authority had earlier in its reasons acknowledged and accepted that one or possibly both of the applicant’s medical conditions may have worsened since he left Iraq.
I am satisfied that the Authority’s error in the present case was material, noting that the High Court recently confirmed that that is a low bar: Nathanson v Minister for Home Affairs (2022) 403 ALR 398; [2022] HCA 26 at [47]. The more specific information in the letter about the services that the applicant receives, if considered by the Authority, might have caused the Authority to consider whether those specific services would be available to the applicant in Iraq and, if not, what impact it would have on his ability to function and, in turn, his capacity to subsist. There is a realistic possibility that this might have affected the Authority’s analysis at [45] of its reasons and caused it to reach a different conclusion. Further, although the Authority accepted that the applicant’s conditions may have worsened, it might have made a positive finding that they had worsened if it had considered the Vision Australia letter. The letter could realistically have been seen as corroborating some of the applicant’s oral evidence about his worsening conditions, based on the level of services that he receives. The letter cannot be said to objectively have such marginal significance that there is no realistic possibility that it could have affected the outcome.
In assessing materiality, I do not place any weight on the possibility that the information in the Vision Australia letter might have prompted the Authority to exercise its discretion in s 473DC of the Migration Act to get further new information, being updated information about the extent and severity of the applicant’s medical conditions, had it taken into account the Vision Australia letter. This is purely speculative and not a basis for finding that an error is material.
I find that the applicant has established jurisdictional error in the Authority decision by ground 2.
CONCLUSION
In circumstances where I have found that the applicant has established jurisdictional error in the Authority decision, it follows that the judicial review application must be allowed. A writ of certiorari will issue to quash the Authority decision and a writ of mandamus will issue to require the Authority to re-conduct the review according to law.
I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 26 May 2023
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