EUB19 v Minister for Immigration, Citizenship and Multicultural Affairs
[2025] FedCFamC2G 124
•7 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EUB19 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 124
File number(s): ADG 496 of 2019 Judgment of: JUDGE LUCEV Date of judgment: 7 February 2025 Catchwords: MIGRATION – Judicial review application – citizen of Pakistan – decision of the Immigration Assessment authority – refusal of Safe Haven Enterprise visa – where admitted breach by Secretary of the Minister’s department of requirement to provide to the Immigration Assessment Authority material provided to the Delegate of the Minister prior to the Delegate making a decision – whether material not provided to the Immigration Assessment Authority was new information – whether failure to exercise discretion to rectify breach by considering material not provided was unreasonable – whether material jurisdictional error Legislation: Migration Act 1958 (Cth) Pt 7AA, ss 5, 5H, 36, 473CB, 473DB, 473DC, 473DD, 474, 476
Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth)
Cases cited: ApplicantWAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630
AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; (2020) 269 CLR 494; (2020) 94 ALJR 1007; (2020) 384 ALR 196
BVT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 222; (2020) 283 FCR 97; (2020) 385 ALR 286
CPJ17v Minister for Immigration and Border Protection (No 2) [2018] FCA 1664
DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175; (2018) 74 AAR 121; (2018) 353 ALR 641
Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321
DVO16 v Minister for Immigration and Border Protection [2021] HCA 12; (2021) 273 CLR 177; (2021) 95 ALJR 375; (2021) 388 ALR 389; (2021) 178 ALD 1
EVS17 v Minister for Immigration and Border Protection [2019] FCAFC 20; (2019) 268 FCR 299; (2019) 163 ALD 422
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610; (2024) 418 ALR 152
Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215
Minister for Immigration and Border Protection v CED16 [2020] HCA 24; (2020) 94 ALJR 706; (2020) 380 ALR 216
Minister for Immigration and Border Protection v CPA16 [2019] FCAFC 40; (2019) 268 FCR 379; (2019) 163 ALD 469
Minister for Immigration and Border Protection v Pandey [2014] FCA 640; (2014) 143 ALD 640
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437; (2014) 308 ALR 280; (2014) 139 ALD 50
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541; (2018) 92 ALJR 713; (2018) 75 AAR 434; (2018) 35 ALR 408; (2018) 163 ALD 1
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181
Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594; (2011) 85 ALJR 327; (2011) 273 ALR 223; (2011) 119 ALD 1
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) ALD 248
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1
MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506; (2021) 95 ALJR 441; (2021) 390 ALR 590; (2021) 177 ALD 464
Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217; (2018) 92 ALJR 481; (2018) 353 ALR 600
Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173; (2015) 90 ALJR 197; (2015) 327 ALR 8; (2015) 148 ALD 206
SGBB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 709; (2003) 199 ALR 364; (2003) 75 ALD 411
Division: Division 2 General Federal Law Number of paragraphs: 50 Date of last submission/s: 10 April 2024 Date of hearing: 10 April 2024 Place: Perth Applicant: In person, with the assistance of an interpreter Counsel for the First Respondent: Mr A Chan Solicitor for the Respondents: Sparke Helmore Lawyers Second Respondent: Submitting appearance, save as to costs ORDERS
ADG 496 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EUB19
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
7 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The originating application filed 3 December 2019, as amended by an amended originating application filed 8 September 2023, be dismissed.
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 LUCEV
INTRODUCTION
Before the Court is an amended application for judicial review (“Amended Judicial Review Application”) filed by the applicant, EUB19, under s 476 of the Migration Act 1958 (Cth) (“Migration Act”) on 8 September 2023. The Amended Judicial Review Application seeks judicial review of a 1 November 2019 decision of the Immigration Assessment Authority (“Authority Decision” and “Authority” respectively) in which the Authority affirmed a 30 September 2019 decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, now the Minister for Home Affairs, Immigration and Multicultural Affairs, Cyber Security and the Arts (“Minister”) not to grant EUB19 a Subclass 790 Safe Haven Enterprise visa (“SHE Visa”).
At hearing the Court Book (“CB”) was marked as Exhibit 1.
All references to the Migration Act in these Reasons for Judgment are to the provisions therein as they were at the time of the Authority Decision.
BACKGROUND AND CLAIMS
EUB19’s background and claims advanced in support of the SHE Visa application were as follows:
(a)EUB19, a citizen of Pakistan, arrived on Christmas Island as an unauthorised maritime arrival on 8 July 2013: CB 52;
(b)on 22 November 2016 EUB19 lodged an application for the SHE Visa: CB 31-68, and advanced the following claims:
(i)he was a Shia Muslim of Pashtun ethnicity from Pakistan;
(ii)in his home area of Parachinar, he witnessed bomb blasts arising from the violence between the Taliban and the Pakistani Army;
(iii)in March 2013, whilst driving a taxi, he was injured and nearly killed in a bomb blast, and he had lost many of his cousins to similar bomb blasts; and
(iv)he feared harm from the Taliban, the Sunni community and other insurgent groups due to his status as a Shia Muslim and as a person who had lived in the West.
AUTHORITY DECISION
In relation to the Authority Decision the Authority:
(a)had regard to the review material given by the Secretary under s 473CB of the Migration Act: CB 118 at [3];
(b)recorded that at the interview by the Delegate (“Delegate Interview”) the Delegate had said that he would photocopy a medical certificate (“Medical Certificate”) that EUB19 provided and had assured EUB19 that the Medical Certificate would be taken into account in the Delegate’s review: CB 118 at [4];
(c)said that no Medical Certificate was included in the review material provided by the Secretary under s 473CB of the Migration Act: CB 118 at [4];
(d)said that it sought clarification from the Delegate as to whether the Medical Certificate was before it for consideration, and that the Delegate had confirmed that the Medical Certificate was neither photocopied nor taken into consideration by the Delegate, and the Medical Certificate could not be located: CB 118 at [4];
(e)decided that because EUB19 did not provide any submissions on the Medical Certificate and his claims did not relate to his health or that Medical Certificate, it would not invite him to provide the Medical Certificate: CB 118 at [4];
(f)recorded that no new information had been obtained or received: CB 118 at [4];
(g)accepted, at CB 119 at [8]-[9] that:
(i)Pakistan was EUB19’s receiving country;
(ii)he was a practising Shia Muslim of Pashtun ethnicity;
(iii)he worked as a driver;
(iv)his family continued to reside in Parachinar; and
(v)Kurram was the area to which he would return: CB 119 at [9];
(h)found that EUB19 would be identifiable as a Bangash Pashtun Shia from Parachinar based on his identity documents, religious practices, accent and physical features: CB 119-120 at [10];
(i)based on country information:
(i)accepted that there previously was a high level of sectarian violence in Kurram which impacted EUB19 and his family, and that EUB19 witnessed or was aware of bombing in his area and that he had lost relatives to the bombing: CB 120-121 at [12];
(ii)accepted that at times EUB19 would have been unable to leave his home and that he was encouraged by his family to depart Pakistan so that he would provide for his family from overseas: CB 120-121 at [12]; and
(iii)found that his community was viewed as anti-Taliban: CB 120-121 at [12];
(j)whilst accepting that EUB19’s car was hit by a bomb blast found that that was not because he was on the Taliban’s “hit list” as claimed but was due to general sectarian violence: CB 121 at [13];
(k)was not satisfied on the evidence that EUB19 was of adverse attention to the Taliban or anyone else: CB 121 at [13];
(l)based on country information, and contrary to the Delegate’s Decision, was not satisfied that EUB19 faced a real chance of serious or significant harm in Kurram District: CB 121-122 at [14]-[19];
(m)found, contrary to EUB19’s submission, that the issues of corruption and resource constraints did not impede the Pakistani authorities’ ability to take action to improve the safety of Shias and Shia Bangash: CB 122-123 at [20]-[21];
(n)did not accept that EUB19 would be unable to seek help because the Sunni Muslim community in his area had links to the Taliban, and found that the Pakistani authorities had security measures in place to tackle extremist groups: CB 123 at [22];
(o)found that the country information did not support EUB19’s claim that driving in Pakistan was dangerous due to the targeting of Shias: CB 123 at [23];
(p)recorded that it was not apparent that EUB19 had claimed to fear harm on the basis of his Pashtun ethnicity, but in any event it reviewed the country information and found that there was not a real chance of EUB19 facing discrimination, violence or other issues due to his status as a Pashtun or Shia Pashtun: CB 124 at [24];
(q)with respect to EUB19’s status as a person returning from the West, found that Western influence was pervasive in many parts of Pakistan and was not satisfied that EUB19 would be discriminated against or subjected to violence for his time spent in a Western country, and that he would be able to reintegrate into Pakistani society: CB 124 at [25];
(r)found that EUB19 did not face a real chance of any harm for any of the reasons claimed and concluded that EUB19 did not meet the definition of refugee in s 5H of the Migration Act and did not meet s 36(2)(a) of the Migration Act: CB 124-125 at [26]-[27];
(s)relying on its anterior findings, concluded that EUB19 did not face a real risk of significant harm and did not meet s 36(2)(aa) of the Migration Act: CB 125 at [28]-[31]; and
(t)affirmed the Delegate’s Decision to not grant EUB19 a SHE Visa: CB 117-129.
AMENDED JUDICIAL REVIEW APPLICATION – SINGLE GROUND OF REVIEW
EUB19 filed an amended application on 8 September 2023 with a single ground of review as follows:
The IAA unreasonably failed to exercise s.473DC(3) of the Act to rectify the Secretary’s breach of s 473CB(1)(b) of the Migration Act 1958 (Cth)
Particulars
(a) At my protection visa interview, I did not have a lawyer and I gave the delegate a medical certificate about my depression and mental health issues.
(b) The delegate told me he would take the issue into consideration when assessing my case but did not do so and instead found I was resilient and could relocate to another part of Pakistan.
(c) The IAA did not let me know the document had been lost and did not consider my mental health at all.
(d) It was unreasonable for the IAA to not give me the opportunity to provide this document when I had been told it would be taken into account and to not have regard to this issue.
(e) A claim for complementary protection clearly emerged from this evidence and the failure to refer or obtain this document was jurisdictional error: CPJ17 v Minister for Immigration and Border Protection (No 2) [2018] FCA 1664.
CONSIDERATION
Material jurisdictional error
For present purposes it suffices to observe that the Court may set aside a decision of the Authority upon judicial review if it is affected by material jurisdictional error: Migration Act, ss 474 and 476; MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506; (2021) 95 ALJR 441; (2021) 390 ALR 590; (2021) 177 ALD 464 (“MZAPC”) at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ. In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610; (2024) 418 ALR 152 (“LPDT”) at [15]-[16] per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ the plurality in the High Court said that:
15.What must be shown to demonstrate that an established error meets the threshold of materiality will depend upon the error. In some cases, it will be sufficient to show that there has been an error and that the outcome is consistent with the error having affected the decision. Where the error is a denial of procedural fairness arising from a failure to put the applicant on notice of a fact or issue, the court may readily be able to infer that, if fairly put on notice of that fact or issue, the applicant might have addressed it by way of further evidence or submissions, and that the decision-maker would have approached the applicant's further evidence or submissions with an open mind. In those cases, it is “no easy task” for the court to be satisfied that the loss of such an opportunity did not deprive the person of the possibility of a successful outcome. Importantly, a court called upon to determine whether the threshold has been met must be careful not to assume the function of the decision-maker: the point at which the line between judicial review and merits review is crossed may not always be clear, but the line must be maintained. This case affords an example.
16.In sum, unless there is identified a basis on which it can be affirmatively concluded that the outcome would inevitably have been the same had the error not been made, once an applicant establishes that there has been an error and demonstrates that there exists a realistic possibility that the outcome of the decision could have been different had that error not been made, the threshold of materiality will have been met (and curial relief will be justified subject to any issue of utility or discretion).
Not merits review
The Court’s role is not to review the merits of the Authority Decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 (“Wu Shan Liang”). The “line between judicial review and merits review… must be maintained”: LPDT at [15] per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ, and, as such, the Court does not undertake a fresh merits review of an applicant’s case. Further, the reasons of the Authority are not to be over-zealously scrutinised in a search for error: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; ApplicantWAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 (“WAEE”) at [46] per French, Sackville and Hely JJ.
Onus of establishing jurisdictional error
It is well established that an applicant for judicial review under s 476 of the Migration Act bears the onus of establishing jurisdictional error: Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594; (2011) 85 ALJR 327; (2011) 273 ALR 223; (2011) 119 ALD 1 at [67] per Gummow J (Heydon J agreeing at [91] and Crennan J agreeing at [92]); Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173; (2015) 90 ALJR 197; (2015) 327 ALR 8; (2015) 148 ALD 206 at [24] per French CJ, Bell, Keane, and Gordon JJ.
Legislation
Sections 473CB, 473DB, 473DC and 473 DD of the Migration Act are relevant to the consideration of this matter.
Section 473CB of the MigrationAct provides as follows:
(1)The Secretary must give to the Immigration Assessment Authority the following material (review material) in respect of each fast track reviewable decision referred to the Authority under section 473CA:
(a) a statement that:
(i)sets out the findings of fact made by the person who made the decision; and
(ii) refers to the evidence on which those findings were based; and
(iii) gives the reasons for the decision;
(b)material provided by the referred applicant to the person making the decision before the decision was made;
(c)any other material that is in the Secretary’s possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review;
(d) the following details:
(i)the last address for service provided to the Minister by the referred applicant for the purposes of receiving documents;
(ii)the last residential or business address provided to the Minister by the referred applicant for the purposes of receiving documents;
(iii)the last fax number, email address or other electronic address provided to the Minister by the referred applicant for the purposes of receiving documents;
(iv)if an address or fax number mentioned in subparagraph (i), (ii) or (iii) has not been provided to the Minister by the referred applicant, or if the Minister reasonably believes that the last such address or number provided to the Minister is no longer correct—such an address or number (if any) that the Minister reasonably believes to be correct at the time the decision is referred to the Authority;
(v)if the referred applicant is a minor—the last address or fax number of a kind mentioned in subparagraph (i), (ii), (iii) or (iv) (if any) for a carer of the minor.
(2)The Secretary must give the review material to the Immigration Assessment Authority at the same time as, or as soon as reasonably practicable after, the decision is referred to the Authority.
Section 473DB of the MigrationAct provides as follows:
(1)Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB:
(a) without accepting or requesting new information; and
(b) without interviewing the referred applicant.
(2)Subject to this Part, the Immigration Assessment Authority may make a decision on a fast track reviewable decision at any time after the decision has been referred to the Authority.
Note:Some decisions to refuse to grant a protection visa to fast track applicants are not reviewable by the Immigration Assessment Authority (see paragraphs (a) and (b) of the definition of fast track decision in subsection 5(1)).
Section 473DC of the MigrationAct provides as follows:
(1)Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:
(a)were not before the Minister when the Minister made the decision under section 65; and
(b) the Authority considers may be relevant.
(2)The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(3)Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a) in writing; or
(b)at an interview, whether conducted in person, by telephone or in any other way.
Section 473DD of the MigrationAct provides as follows:
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.
Medical Certificate
At the centre of the issues in this matter is the Medical Certificate.
The Medical Certificate is on the letterhead of a medical practice but is in fact a letter addressed to a doctor and signed by a clinical psychologist. For the sake of convenience the Court will continue to refer to this letter as the Medical Certificate. The text of the Medical Certificate is as follows:
Dr Sayed Kazmi
Tristar Deer Park
15 May 2018
Dear Dr Kazmi
Re: [EUB19]
…Thank you for referring this 37 y.o married man with three children who I saw for the second time today under a GP Mental Health Treatment Plan for Depression.
He has become moderately depressed the last several years in the context of being separated from his wife and children who continue to live in Parachinar in Pakistan.
[EUB19] alleges he left Parachinar and Pakistan as he was the subject of targeted attacks from the Taliban and other militants and that he feared for his life.
He became an asylum seeker entering Australia in 2013 as a refugee through Christmas Island where he was held in detention. He is now…on a Temporary Protection visa.
His depression is at least moderately severe and he is incapacitated by a low mood and a severe and chronic sleep disturbance. He sleeps only two to four hours per night.
I will continue to see him for Cognitive Therapy for depression. Would you please assess him for suitability for pharmacological treatment of his depressive symptoms?
Yous Sincerely,
Brian Lowe M.A.
Clinical PsychologistThe Authority determined not to have regard to the Medical Certificate as new information. In the Authority Decision the Authority said, at CB 118 at [4], as follows:
Towards the conclusion of the Protection Visa interview (PV interview) the applicant presented what he said was a doctor’s certificate to the delegate. The delegate stated on record that the applicant had handed him a medical certificate and that he would photocopy this. He also told the applicant he would definitely take this into consideration when assessing his application. The document was not included in the review material. On 30 October 2019 the IAA sought clarification as to whether the document was before the delegate. On 31 October 2019 the delegate confirmed that no copy of the medical certificate was made or recorded and the contents of the medical certificate were not taken into consideration in coming to his decision nor had he been able to locate the document, having searched for it. The applicant has not raised any protection claims that appear to relate to that document or that relate to his health in any way. The delegate, in the decision, did not refer to the document and the applicant has not provided any submissions to the IAA on that omission, despite being advised in writing of his ability to provide submissions, including in respect of ‘any claim or matter you presented to the Department that was not considered’. Given the circumstances, I have decided not to invite the applicant to provide this document (s.473DC(3)). No further information has been obtained or received.
Provision of the review material to the Authority
The use of the words “must give” in s 473CB(1) of the Migration Act imposes upon the Secretary a mandatory requirement to provide the review material to the Authority: EVS17 v Minister for Immigration and Border Protection [2019] FCAFC 20; (2019) 268 FCR 299; (2019) 163 ALD 422 (“EVS17”) at [32] per Allsop CJ, Markovic and Steward JJ. The Minister concedes that there was a breach of s 473CB(1)(b) of the Migration Act in that the Secretary of the Minister’s department did not give to the Authority all the material provided by EUB19 to the Delegate prior to the making of the Delegate’s Decision, and specifically did not give the Medical Certificate to the Authority. There was, therefore, an error (specifically the failure to provide the Medical Certificate to the Authority), but whether the error was jurisdictional depends upon whether the error was material: EVS17 at [41]-[42] per Allsop CJ, Markovic and Steward JJ; Minister for Immigration and Border Protection v CPA16 [2019] FCAFC 40; (2019) 268 FCR 379; (2019) 163 ALD 469 (“CPA16”) at [33] per Yates, Murphy and Moshinsky JJ. The question of whether the error was material is discussed at [45]-[47] below.
Failure to invite the giving of new information
EUB19’s single ground of review claims it was unreasonable for the Authority not to give him the opportunity to provide the Medical Certificate to the Authority when he had been told by the Delegate that it would be taken into account, but it was not taken into account, in the Delegate’s Decision.
The statutory provisions
Before dealing with the questions raised by the claim of legal unreasonableness it is appropriate to make some observations about the statutory scheme under the Migration Act with particular reference to ss 473DB, 473DC and 473DD of the Migration Act.
Section 473DB of the Migration Act is headed “Immigration Assessment Authority to review decisions on the papers”. Section 473DB(1) of the MigrationAct provides that the Authority must review a delegate’s decision by considering the review material provided to the Authority under s 473CB of the Migration Act by the Secretary of the Minister’s department without accepting or requesting new information and without interviewing a referred applicant. Section 473DB of the Migration Act emphasises the conduct of a review by the Authority being conducted “on the papers”.
The Explanatory Memorandum to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth) (“Explanatory Memorandum”) which accompanied the introduction of s 473DB does not suggest the meaning of the expression “on the papers”. However, the Statement of Compatibility with Human Rights found at Attachment A to the Explanatory Memorandum at pages 23-24 states as follows:
New section 473DB of the Bill provides that subject to this Part, the IAA must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB:
•without accepting or requesting new information; and
•without interviewing the referred applicant.
The purpose of this provision is to stipulate that the default function of the IAA is to conduct a limited form of review, referred to as an “on the papers” review, by only considering the review material provided to the Authority by the Secretary of the Department, which is the material that is available to the primary decision-maker. The IAA is not required to accept or request new information or interview the referred applicant.
The effect of section 473DB is to clarify that an ‘on the papers’ review will require the IAA to undertake a reconsideration of the review material to determine if a more preferable interpretation should be taken on the previous information.
In Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217; (2018) 92 ALJR 481; (2018) 353 ALR 600 (“Plaintiff M174/2016”) at [22] per Gageler, Keane and Nettle JJ the plurality described how the Authority's review under Pt 7AA of the Migration Act worked, as follows:
Within Div 3, s 473DB sets out the primary requirement that, subject to the Part, the Authority is to review a fast track reviewable decision referred to it under s 473CA by considering the review material provided to the Authority under s 473CB without accepting or requesting new information and without interviewing the referred applicant. To that primary rule, subdiv C of Div 3 admits of exceptions. The principal provisions of subdiv C providing for those exceptions are contained in ss 473DC, 473DD and 473DE. Close attention needs to be paid to each of those provisions and to their interrelationship.
In DVO16 v Minister for Immigration and Border Protection [2021] HCA 12; (2021) 273 CLR 177; (2021) 95 ALJR 375; (2021) 388 ALR 389; (2021) 178 ALD 1 at [16]-[17] per Kiefel CJ, Gageler, Gordon and Steward JJ the plurality in the High Court described the “overriding duty” of the Authority to review the fast track reviewable decision referred to it by the Minister, the “procedural duty” to conduct that review by “considering” the review material provided to it by the Secretary and the qualification of that procedural duty under Pt 7AA of the Migration Act as follows (footnotes omitted):
16.The overriding duty of the Authority to “review” the fast track reviewable decision referred to it by the Minister is accompanied by a procedural duty to conduct that review by “considering” the review material provided to it by the Secretary without accepting or requesting “new information”, being “a communication of knowledge about some particular fact, subject or event” that was not before the Minister when the delegate made the referred decision, and without interviewing the referred applicant. That procedural duty as to the manner of conduct of the review is qualified only by the Authority having specific procedural powers to “get” new information and in specified circumstances, and on specified conditions, to “consider” that new information. Performance of the procedural duty subject to the potential for exercise of these powers exhausts the requirements of “the natural justice hearing rule” in relation to the review.
17.The Authority performs its duty to consider the review material provided to it by the Secretary by examining the review material physically provided to it so as to form and act on its own assessment of the relevance of that material to the review of the referred decision…
The Authority’s review may therefore be based on the review material without accepting or requesting new information: Migration Act, s 473DB.
The manner of the review by the Authority is subject to s 473DC(1) and (2) of the Migration Act, which provides that the Authority may “get” new information, but that it does not have a duty to do so. In relation to the meaning of “new information” the plurality in the High Court in Plaintiff M174/2016 at [24] per Gageler, Keane and Nettle JJ observed that (footnote omitted):
The term “new information” must be read consistently when used in ss 473DC, 473DD and 473DE as limited to “information” (which may or may not be recorded in a document), in the ordinary sense of a communication of knowledge about some particular fact, subject or event, that meets the two conditions set out in s 473DC(1)(a) and (b). The first is that the information was not before the Minister or delegate at the time of making the decision to refuse to grant the protection visa. The second is that the Authority considers that the information may be relevant.
Any new information must also be considered by the Authority to be relevant: Migration Act, s 473DC(1)(b). In Minister for Immigration and Border Protection v CED16 [2020] HCA 24; (2020) 94 ALJR 706; (2020) 380 ALR 216 (“CED16”) at [23] per Gageler, Keane, Nettle and Gordon JJ the plurality observed that (footnote omitted):
Consistently with the confinement of s 473DC(1)'s reference to “any documents or information” to documentation or information of an evidentiary nature, the word “relevant” in s 473DC(1)(b) can only sensibly be read as having the same meaning that the word "relevant" has in s 473CB(1)(c). Documentation or information of an evidentiary nature that the Authority considers may be "relevant" is documentation or information of an evidentiary nature that the Authority considers "capable directly or indirectly of rationally affecting assessment of the probability of the existence of some fact about which the Authority might be required to make a finding in the conduct of its review of the referred decision".
By reason of s 473DD of the Migration Act there is an exception to the “primary rule” and the “procedural power” to allow the getting of new information in specified circumstances on specified conditions, and for the Authority to consider that new information.
In AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; (2020) 269 CLR 494; (2020) 94 ALJR 1007; (2020) 384 ALR 196 (“AUS17”) the plurality explained:
(a)at [4] per Kiefel CJ, Gageler, Keane and Gordon JJ, that the Authority “gets” new information within the meaning of s 473DC of the Migration Act when and if the Authority physically obtains new information. The Authority then considers new information within the meaning of s 473DD of the Migration Act when and if the Authority takes new information it has got into account in making its decision on the review, assigning the new information such probative weight as it thinks the new information deserves in its assessment of the probability of the existence of some fact about which it actually makes a finding; and
(b)at [6] per Kiefel CJ, Gageler, Keane and Gordon JJ, that although expressed to prohibit the Authority from considering new information if the criteria it specifies are not met, s 473DD of the Migration Act must be construed to impose a duty on the Authority to assess new information that it has got against the specified criteria and must take (or not take) that new information into account if the criteria are met (or not met).
Was the Medical Certificate new information?
The Medical Certificate was information:
(a)provided to the Delegate at the Delegate Interview and therefore not new information for the purposes of s 473DD(b)(i) of the Migration Act; and
(b)which was not credible personal information which was not previously known as it was given to the Delegate at the Delegate Interview and therefore not new information for the purposes of s 473DD(b)(ii) of the Migration Act,
and was not therefore capable of being considered by the Authority as new information: AUS17 at [4] and [6] per Kiefel CJ, Gageler, Keane and Gordon JJ.
The Court further notes that in circumstances where the Minister has, rightly in the Court’s view, conceded that there was a breach of s 473CB(1)(b) of the MigrationAct in that the Secretary of the Minister’s department did not give to the Authority all the material provided by EUB19 to the Delegate prior to the making of the Delegate’s Decision, and specifically did not give the Medical Certificate to the Authority, the Medical Certificate cannot be both material provided to the Delegate but not provided to the Authority by the Secretary of the Minister’s department and also be new information to be considered under s 473DD(b) of the Migration Act. It is one or the other, and in this matter it is the former and not the latter.
Section 473DC(1)(b) of the Migration Act requires that “new information” is information that the Authority “considers may be relevant”. In order to be relevant the information must be capable directly or indirectly of rationally affecting assessment of the probability of the existence of some fact about which the Authority might be required to make a finding in the conduct of its review of the Delegate’s Decision: CED16 at [23] per Gageler, Keane, Nettle and Gordon JJ. That is, it must bear upon or be pertinent to the matter in hand.
In the Authority Decision at CB 118 at [4] the Authority said that “[t]he applicant has not raised any protection claims that appear to relate to that document [the Medical Certificate] or that relate to his health in any way”. That is so: there were no protection claims made based on EUB19’s health generally or his mental health (including depression). The Medical Certificate records what EUB19 evidently told the clinical psychologist, which is that he “alleges he left Parachinar and Pakistan as he was the subject of targeted attacks from the Taliban and other militants and that he feared for his life”. Otherwise, it summarised EUB19 depressive, mood and sleep conditions because of his separation from his family in Pakistan, and that he was getting treatment under a mental health treatment plan. That information was not relevant to EUB19’s protection claims.
The protection claims made were based on EUB19’s fear of harm by others from violence in the Kurram District because of his religion and ethnic status: see [4(b)(iv)] and [5(g)] above. It follows that the Medical Certificate was therefore not relevant to the protection claims made by EUB19 and, by reason of s 473DC(1) (and in particular para (b)) of the Migration Act, was not therefore new information which the Authority could “get”.
It follows from the conclusions in [30], [31] and [34] above that the Authority did not err when it decided at CB 118 at [4] not to consider the Medical Certificate as new information.
Unreasonableness
Lest the conclusions reached in [30], [31] and [34] above be wrong, the Court will consider EUB19’s single ground of review as if the Medical Certificate was new information under s 473DD(b) of the Migration Act.
The principles in relation to legal unreasonableness were expounded by the High Court in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181 (“Li”) and summarised in Minister for Immigration and Border Protection v Pandey [2014] FCA 640; (2014) 143 ALD 640 (“Pandey”) at [41] per Wigney J. The Court notes the following:
(a)the legal standard of reasonableness and the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case: Li at [67] per Hayne, Kiefel and Bell JJ; Pandey at [41(f)] per Wigney J;
(b)a decision which lacks an evident and intelligible justification is unreasonable: Li at [76] per Hayne, Kiefel and Bell JJ. Where reasons are given, the supervising court is concerned with seeing if there is an evident, transparent and intelligible justification within the decision-making process: Li at [28] per French CJ and [105] per Gageler J; Pandey at [41(d)] per Wigney J;
(c)a decision which no reasonable person could have arrived at, or one which is arbitrary or capricious or without common sense or plainly unjust, is, or can be inferred to be, unreasonable: Li at [28] per French CJ and [110] per Gageler J; Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) ALD 248 (“SZMDS”) at [135] per Crennan and Bell JJ;
(d)a decision-maker is allowed an area of decisional freedom within which reasonable minds might properly differ: Li at [28] per French CJ and [65]-[66] per Hayne, Kiefel and Bell JJ, and thus unreasonableness is not established simply because a court would have taken a different view of the matter: Li at [30] per French CJ, [75] per Hayne, Kiefel and Bell JJ and [107] per Gageler J. It follows that legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker: Li at [30] per French CJ and [66] per Hayne, Kiefel and Bell JJ; Pandey at [41(j)] per Wigney J;
(e)the test for legal unreasonableness is stringent: Li at [113] per Gageler J; Pandey at [41(j)] per Wigney J; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541; (2018) 92 ALJR 713; (2018) 75 AAR 434; (2018) 35 ALR 408; (2018) 163 ALD 1 (“SZVFW”) at [11] per Kiefel CJ, “extremely confined” SZVFW at [52] per Gageler J, or requires something in “the realm of the extraordinary”: SZVFW at [70] per Gageler J; and
(f)regard can be had to the outcome of the decision under review, and whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of fact and law: Li at [105] per Gageler J; Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437; (2014) 308 ALR 280; (2014) 139 ALD 50 at [45] per Allsop CJ, Robertson and Mortimer JJ.
The Court further notes that for the Authority Decision to be found to be affected by jurisdictional error on the ground of unreasonableness, the Authority Decision must be one that no reasonable decision-maker could arrive at on the same evidence, or one without an evident and intelligible basis: SZMDS at [130], [131] and [135] per Crennan and Bell JJ. SZMDS sets a very high threshold for findings of irrationality or illogicality, and that reasonable minds might differ as to the decision or finding to be made on the basis of the evidence is insufficient to establish irrationality or illogicality: SZMDS at [131] per Crennan and Bell JJ. Further in order for jurisdictional error to be found a finding must reach a threshold of “extreme illogicality”: DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175; (2018) 74 AAR 121; (2018) 353 ALR 641 (“DAO16”) at [4] and [30] per Kenny, Kerr and Perry JJ.
The issue of unreasonableness can be resolved by asking whether the Authority provided an intelligible justification for refusing to exercise its discretion under s 473DC of the Migration Act to obtain the Medical Certificate. An affirmative answer to such a question will generally mean that there is no unreasonableness in the relevant administrative decision. How the Authority justified its decision not to consider the Medical Certificate as new information is set out at CB 118 at [4] (set out in full at [17] above). There the Authority detailed its rationale and had regard to the following:
(a)that the document which it was considering was a medical certificate (albeit that strictly speaking it was not: see [16] above);
(b)the circumstances in which the Medical Certificate was provided to the Delegate;
(c)what the Delegate said upon receipt of the Medical Certificate, including that the Delegate would photocopy the Medical Certificate and that the Delegate “would definitely take this [the Medical Certificate] into consideration”;
(d)that the Medical Certificate had not been photocopied by the Delegate, and hence a copy of the Medical Certificate was not in the review material forwarded to the Authority by the Secretary of the Minister’s department;
(e)that EUB19’s protection claims did not “relate to his health in any way” (emphasis added);
(f)that in making the Delegate’s Decision the Delegate did not consider the content of the Medical Certificate; and
(g)that although the Delegate made no reference to the Medical Certificate in the Delegate’s Decision, when EUB19 was invited to make written submissions to the Authority: CB 104-110, EUB19 did not make any written submissions to the Authority at all, let alone about the Delegate’s failure to consider the Medical Certificate.
The Authority’s function was to respond to the case that EUB19 advanced: Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321 at [78] per Kirby J; SGBB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 709; (2003) 199 ALR 364; (2003) 75 ALD 411 at [17] per Selway J. No discernible claim for any form of protection based on a depressive illness was advanced by EUB19 before either the Delegate or the Authority. Because no claim was made the Medical Certificate was irrelevant to the Authority’s task of reviewing the Delegate’s Decision: see also [34] above. To the extent that EUB19 now suggests that there may have been a claim for complementary protection the Court notes that:
(a)the Medical Certificate could not give rise to a complementary protection claim because such a claim necessitates an applicant suffering significant harm of a type prescribed, or similar to a type prescribed, by s 36(2A) of the Migration Act (which entails being subjected to cruel or severe forms of treatment or punishment, such as arbitrary deprivation of life, the death penalty, torture, or cruel or inhuman or degrading treatment to be suffered in the future: BVT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 222; (2020) 283 FCR 97; (2020) 385 ALR 286 (“BVT20”) at [86] per Allsop CJ, Moshinsky and O'Callaghan JJ). Nothing in the Medical Certificate touches upon the nature of any significant harm that EUB19 might suffer in the future if returned to Pakistan, whether as a consequence of his moderately severe depression, low mood and sleep disturbance, or otherwise; and
(b)for the purposes of the cruel or inhuman or degrading treatment or punishment aspects of the complementary protection criterion, such treatment or punishment must satisfy the intention elements set out in the relevant definition: Migration Act, s 5, read with s 36(2A)(d) and (e); BVT20 at [88] per Allsop CJ, Moshinsky and O'Callaghan JJ. Nothing in the Medical Certificate suggests, even if this were significant harm, that the significant harm meets the intention elements set out in the definitions of “cruel or inhuman treatment or punishment” or “degrading treatment or punishment” in s 5 of the Migration Act.
As such, deterioration in EUB19’s mental health could not have given rise to a complementary protection claim even if the Medical Certificate had been before the Authority.
In the circumstances, there was an adequate evidentiary basis for the Authority’s decision to not invite EUB19 to provide the Medical Certificate as new information, and that decision was not one which no reasonable decision-maker could make, and it was therefore not lacking in a reasonable or intelligible justification: SZMDS at [130]-[135] per Crennan and Bell JJ, and certainly did not meet the test of “extreme illogicality”: DAO16 at [4] and [30] per Kenny, Kerr and Perry JJ. It follows that the Authority’s decision to not invite EUB19 to provide the Medical Certificate as new information does not establish error in the Authority Decision on the basis of unreasonableness as alleged in the single ground of review.
For the sake of completeness, the Court notes that EUB19 relied on CPJ17v Minister for Immigration and Border Protection (No 2) [2018] FCA 1664 (“CPJ17 (No 2)”). The facts of that case are significantly different to the present case, including accepted claims of detention, severe beating, being forced to drink urine and sexual assault in an army camp in Sri Lanka, probably by a paramilitary group: CPJ17 (No 2) at [2]-[3] per Charlesworth J, and detailed evidence about CPJ17’s psychological conditions, and his fear of returning to Sri Lanka, and a possible deterioration in CPJ17’s mental health were he to return to Sri Lanka: CPJ17 (No 2) at [20]-[21] per Charlesworth J. By contrast, EUB19’s mental health conditions were linked to his separation from his family who remain in Pakistan: see [16] above. Thus, EUB19’s case can be further distinguished because it can be inferred that EUB19’s return to Pakistan would likely have a positive impact on his mental health, rather than the possible deterioration found for CPJ17 in CPJ17(No 2). In relation to EUB19 returning to Pakistan it is to be noted that the Authority otherwise found that EUB19 did not meet the refugee or complementary protection criteria in s 36(2)(a) and (aa) of the Migration Act: CB 125 at [27] and [31], including finding that there “are not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia … there is a real risk that … [EUB19] will suffer significant harm”: CB 125 at [31]. Those findings are not the subject of an application for review or otherwise challenged in the Amended Judicial Review Application. In the above circumstances CPJ17 (No 2) is distinguishable on the facts from EUB19’s circumstances, and it does not assist EUB19’s case.
Jurisdictional error otherwise
The Court is cognisant that EUB19 was self-represented, and that in those circumstances the Court must endeavour to remain independently alert to the possibility of a jurisdictional error having been made by the Authority: MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158 at [100] and [112] per Mortimer J; Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215 at [26] per Judge Lucev. Save for the matters otherwise considered in these Reasons for Judgment, it is not evident to the Court that some other form of possibly arguable legal error, and in particular possibly arguable jurisdictional error, arises in relation to the Authority Decision.
Materiality
Materiality falls to be considered in this case because the Minister has conceded that there was a breach of s 473CB(1)(b) of the Migration Act in that the Secretary of the Minister’s department did not give to the Authority all the material provided by EUB19 to the Delegate prior to the making of the Delegate’s Decision, and specifically did not give the Medical Certificate to the Authority, and there was, therefore, an error (specifically the failure to provide the Medical Certificate to the Authority). Whether the error was jurisdictional depends upon whether the error was material: MZAPC at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ. LPDT at [15]-[16] per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ; EVS17 at [41]-[42] per Allsop CJ, Markovic and Steward JJ; CPA16 at [33] per Yates, Murphy and Moshinsky JJ. In MZAPC at [60] per Kiefel CJ, Gageler, Keane and Gleeson JJ in relation to the onus of proving materiality the plurality in the High Court said that:
…Where materiality of a breach of an express or implied condition of a conferral of statutory decision-making authority is in issue in an application for judicial review of a decision on the ground of jurisdictional error, the onus of proving by admissible evidence on the balance of probabilities historical facts necessary to satisfy the court that the decision could realistically have been different had the breach not occurred lies unwaveringly on the plaintiff.
EUB19 has not fulfilled that onus. The Medical Certificate is not material because it could not have realistically resulted in a different outcome in any event. That is because:
(a)the Medical Certificate is not relevant to the protection claims made by EUB19: see [34] above;
(b)even if complementary protection claims had been made they could not have succeeded because nothing in the Medical Certificate establishes the likelihood of EUB19 suffering significant harm, or intentionally inflicted cruel or inhuman or degrading treatment or punishment, if EUB19 returns to Pakistan: see [40], [41] and [43] above; and
(c)EUB19 has not challenged the Authority’s findings that EUB19 did not otherwise meet the refugee or complementary protection criteria in s 36(2)(a) and (aa) of the Migration Act, and on the face of the Medical Certificate the cause of his mental health conditions, namely his separation from his family who remain in Pakistan would be removed if EUB19 returned to Pakistan: see [16], [40], [41] and [43] above.
EUB19 has therefore not established that the error made by the Secretary of the Minister’s department in not giving to the Authority all the material provided by EUB19 to the Delegate prior to the making of the Delegate’s Decision, was material. It follows that the error made was not a jurisdictional error.
CONCLUSION AND ORDER
The Court has concluded that:
(a)there was a breach of s 473CB(1)(b) of the Migration Act in that the Secretary of the Minister’s department did not give to the Authority all the material provided by EUB19 to the Delegate prior to the making of the Delegate’s Decision, and specifically did not give the Medical Certificate to the Authority;
(b)the error in sub-paragraph (a) above was not material, and the error was therefore not a jurisdictional error; and
(c)there was no other error in the Authority Decision
It follows that the Authority Decision was not affected by jurisdictional error, and the Amended Judicial Review Application must be dismissed. There will be an order accordingly.
The Court will hear the parties as to costs.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 7 February 2025
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