FHP17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 119
•16 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FHP17 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 119
File number: MLG 2632 of 2017 Judgment of: HER HONOUR JUDGE C.E. KIRTON KC Date of judgment: 16 February 2024 Catchwords: MIGRATION LAW – review of Immigration Assessment Authority decision – protection visa applicant – IAA made adverse credibility findings – information gap between Delegate and IAA – whether failing to bridge the information gap was unreasonable – whether IAA misapplied s 473DD of the Migration Act 1958 (Cth) – question as to materiality – no jurisdictional error – application dismissed – costs awarded Legislation: Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 36(2)(b)(i), 36(2)(c)(i), 473CB, 473DC, 473DD and 476
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) Sch 2, pt 2, div 1, item 3
Migration Regulations 1994 (Cth) r 1.12(1)
Cases cited: ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; (2020) 269 CLR 439
AUS17 vMinister for Immigration and Border Protection [2020] HCA 37; (2020) 269 CLR 494
CSR16 v Minister for Immigration and Border Protection [2018] FCA 474
Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 96 ALJR 737
Division: Division 2 General Federal Law Number of paragraphs: 64 Date of last submissions: 21 November 2023 Date of hearing: 21 November 2023 Place: Melbourne Counsel for the Applicant: Dr McBeth Solicitor for the Applicant: FCG Legal Pty Ltd Counsel for the First Respondent: Ms McInnes Solicitor for the First Respondent: Sparke Helmore The Second Respondent: Submitted an appearance, save as to costs ORDERS
MLG 2632 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FHP17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
HER HONOUR JUDGE C.E. KIRTON KC
DATE OF ORDER:
16 FEBRUARY 2024
THE COURT ORDERS THAT:
1.The Application filed 4 December 2017, as amended on 24 October 2023, is dismissed.
2.The Applicant pay the First Respondent’s costs fixed in the sum of $8,371.30.
3.The name of the First Respondent be amended to ‘Minister for Immigration, Citizenship and Multicultural Affairs’.
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
HER HONOUR JUDGE C.E. KIRTON KC:
INTRODUCTION
By an application filed on 4 December 2017 (Application) in the Federal Circuit Court of Australia (the predecessor of this Court) and amended on 24 October 2023 (Amended Application), the Applicant seeks judicial review of a decision of the Immigration Assessment Authority (IAA), dated 8 November 2017 (IAA Decision). The IAA Decision affirmed a decision of a delegate (Delegate) of the First Respondent (Minister) to refuse to grant the Applicant a Protection (Subclass 790) Safe Haven Enterprise visa (Visa).
The Amended Application is brought pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act) and contains within it two (2) grounds of review which will each be considered in detail below.
This matter was heard on 21 November 2023 and proceeded in person at the Melbourne Registry of the Court (Hearing). At the conclusion of the Hearing, judgment was reserved. These are the Reasons for Judgment in relation to the Hearing.
ISSUES IN DISPUTE
The issues in dispute are whether the IAA Decision was affected by jurisdictional error by virtue of the following:
(a)The IAA’s unreasonable failure to invite the Applicant to an interview and/or its unreasonable failure to obtain the photographs presented to the Delegate before making a finding that the Applicant and the second applicant were not brothers; and/or
(b)The IAA’s erroneous assessment of new information under s 473DD of the Migration Act.
SYNOPSIS
I have determined that the IAA Decision is not affected by jurisdictional error and therefore the Application, as amended by the Amended Application, must be dismissed with costs.
BACKGROUND
The Court has before it a Court Book filed by the Minister on 18 January 2019, numbering 598 paginated pages (Court Book). The Court has reviewed the material in the Court Book in detail. The Court Book contains all relevant information that was before the Delegate and the IAA and the respective decisions of each. On 8 November 2023, the Minister filed Written Submissions (Minister’s Submissions). The Minister’s Submissions accurately summarise the background to this matter. The Court adopts these submissions as its own. They provide, with some amendments, as follows.
The Applicant was born in Iran and arrived on Christmas Island as an unauthorised maritime arrival on 24 October 2012.[1]
[1] Court Book (CB) 31; 103.
The Applicant lodged an application for the Visa on 4 July 2016 (Visa Application), together with a secondary applicant that claimed to be his brother (Second Applicant).[2] The Applicant’s protection claims centred primarily around his fears of returning to Iran due to his publication of academic works, particularly a book entitled ‘Torture in Iranian Politics’ (Book) which was critical of the Iranian government, and his status as a returned failed asylum seeker.[3] The Applicant claimed that the Second Applicant was also involved in the Book’s preparation and publication, and that they had both been subject to imprisonment, solitary confinement and forced to flee Iran as a result.[4]
[2] CB 11-88.
[3] CB 3, 104.
[4] CB 104-110.
The Applicant and the Second Applicant participated in protection visa interviews with respect to the Visa Application on 14 October 2016 and 27 October 2016 (Protection Visa Interviews).[5]
[5] CB 379.
On 20 February 2017, the Delegate refused to grant the Visa to the Applicant and the Second Applicant (Delegate’s Decision).[6] The Delegate’s Decision is lengthy and the Delegate made a number of findings with regard to the Applicant and the Second Applicant, including the following:
[6] CB 381-418
(a)The Second Applicant was not a ‘member of the same family unit’ as the Applicant in accordance with r 1.12(1) of the Migration Regulations 1994 (Cth) (Regulations), as the Second Applicant was not financially reliant or dependent upon the Applicant;[7]
(b)The Applicant did not possess doctoral-level qualifications as claimed, nor was he the author of 33 academic publications or a person of renown in his profession;[8]
(c)The Second Applicant’s knowledge of and inability to speak of the law of Iran in general terms was inconsistent with his claimed role in the publication of the Book;[9]
(d)The Applicant and the Second Applicant were in fact not involved in reporting human rights abuses to the Islamic Human Rights Commission as claimed;[10]
(e)The Applicant and the Second Applicant did not publish the Book upon gaining permission from the Iranian government to do so;[11]
(f)As a consequence of the finding referred to in sub-paragraph (e) above, the Applicant and the Second Applicant were not arrested and imprisoned as a result of the Book’s publication;[12]
(g)It was likely that the Applicant and the Second Applicant were able to leave the Imam Khomeini International Airport, Tehran unhindered on valid passports as they were not fugitives, and there was no ‘shoot to kill order’ against them;[13]
(h)The Applicant’s funds were not frozen by the Iranian government;[14]
(i)No members of the Applicant’s family, including his mother, sister or daughter, were subject to torture or killed by Iranian authorities;[15] and
(j)The Applicant and the Second Applicant committed a ‘high degree of fabrication’ in their claims and material.[16]
[7] CB 387.
[8] CB 394, 398.
[9] CB 395.
[10] CB 397, 401.
[11] CB 399.
[12] CB 399.
[13] CB 410.
[14] CB 411.
[15] CB 414-415.
[16] CB 402, 405, 411-412 and 414-415.
In light of the above findings, the Delegate was not satisfied that the Applicant or the Second Applicant were persons in respect of whom Australia has protection obligations pursuant to s 36(2)(a) of the Migration Act, nor were they owed complementary protection in accordance with s 36(2)(aa) of the Migration Act.[17]
[17] CB 416-417.
The Second Applicant subsequently added a further and separate claim to fear harm on the basis that he was homosexual.[18]
[18] Affidavit of Duy Thanh San, affirmed and filed 24 October 2023 (San Affidavit), [2] and [3] and Annexure “A”, [18].
The Delegate’s Decision was referred to the IAA for review in accordance with Part 7AA of the Migration Act.[19]
[19] CB 419-428.
In the IAA Decision on 8 November 2017, the IAA affirmed the Delegate’s Decision to refuse to grant the Applicant the Visa.
IAA DECISION
The IAA Decision made on 8 November 2017 appears at pages 568 to 594 of the Court Book.
Information before the IAA
The IAA commenced its decision by noting that it had regard to the material referred to it under s 473CB of the Migration Act.[20]
[20] CB 569, [2].
The IAA then observed that ‘a large amount of material’ had been provided to it by the Applicant’s representative, in respect of which submissions were made in support of the IAA’s consideration of the material under s 473DD of the Migration Act. The IAA had regard to those submissions and ultimately decided that it was under no obligation to notify the Applicant or provide an opportunity to make further submissions, as to its finding that that certain material did not satisfy the matters in s 473DD of the Migration Act.[21]
[21] CB 569, [3].
Relevantly, the IAA found the following information to be new information not before the Delegate which did not satisfy the requirements of s 473DD of the Migration Act:[22]
(a)Email correspondence from Oncall, dated 15 March 2017 and submitted to the IAA on 16 March 2017. This email correspondence concerned the Applicant’s funds at a time post-dating the Delegate’s Decision, relevant to adverse information put to him and relied on by the Delegate (Oncall Information); and
(b)A Letter from Dr Mammad Aidani, dated 16 March 2017 and submitted to the IAA on the same day. This letter from Dr Mammad Aidani related to his opinions of the Applicant’s academic and professional background, and information relating to Dr Aidani’s background (Dr Aidani Information).
[22] CB 571, [7].
The IAA was not persuaded that the information referred to in the preceding paragraph satisfied the requirements of s 473DD of the Migration Act, as the IAA was not satisfied that there were exceptional circumstances justifying its consideration. Therefore this information was not considered by the IAA in the IAA Decision.
The IAA also acknowledged a request made by the Applicant and the Second Applicant to be interviewed. It was submitted that it would be inappropriate to finalise the matter without doing so in circumstances where the Delegate’s Decision turned largely on an assessment of their credibility. The IAA declined this request, noting that the Protection Visa Interviews were lengthy, submissions had been made following the Protection Visa Interviews, and that new information in response to the Delegate’s Decision was before the IAA.[23]
[23] CB 572, [11].
Assessment of claims by the IAA
As with the Delegate’s Decision, the IAA Decision is lengthy and comprehensive. The IAA made a number of findings with respect to the material provided by the Applicant, and the Second Applicant, which is relevantly summarised as follows:
(a)With respect to the Book:
(i)It was highly implausible that the Applicant and the Second Applicant were given permission to publish the Book, particularly without any censorship;[24]
[24] CB 575-576, [22] and [25].
(ii)It was implausible that the Applicant and the Second Applicant would have ever believed that the Book would not attract adverse attention or that it would be well-received;[25]
[25] CB 576, [25].
(iii)The evidence regarding the Second Applicant’s role in the preparation and publication of the Book was ‘inconsistent’;[26] and
[26] CB 584, [54].
(iv)It was not accepted that the Book was published at all, nor that it resulted in the Applicant and the Second Applicant being arrested, detained and subject to a ‘shoot to kill order’.[27]
[27] CB 589-590, [66].
(b)With respect to the Applicant and the Second Applicant’s departure from Iran, their evidence regarding their departure from the Imam Khomeini International Airport in Tehran, while subject to a ‘shoot to kill’ order was implausible, inconsistent and problematic.[28]
(c)With respect to the Applicant and the Second Applicant obtaining certain documents prior to their departure from Iran:
(i)It was implausible that: the Applicant and the Second Applicant would have been concerned as a priority with obtaining these documents whilst attempting to flee Iran; or that they were ultimately able to access these documents;[29]
(ii)It was implausible that certain documents would be produced at all or take the form that they did;[30] and
(iii)It was ‘highly doubtful’ that the risk would have been taken to obtain and send certain documents from Iran.[31]
(d)Although the Applicant may have worked as an academic in Iran, he had ‘exaggerated the extent of his qualifications’.[32]
(e)The Applicant and the Second Applicant had engaged in ‘a sophisticated and elaborate fabrication’ of their experience in Iran.[33]
(f)The Applicant and the Second Applicant are not in fact ‘brothers’.[34]
[28] CB 576-577, [26], [29] and [31].
[29] CB 580-581, [43] and [45].
[30] CB 583 and 584, [51].
[31] CB 583, [51].
[32] CB 587, [62].
[33] CB 590, [66].
[34] CB 591, [71].
In light of the findings in the preceding paragraph, the IAA was not satisfied that the Applicant met the requirements of ss 36(2)(a) or (aa) of the Migration Act.[35]
[35] CB 591-594, [72]-[84].
Finally, as the IAA was not satisfied that the Applicant was the brother of the Second Applicant, the Applicant was found to not meet the family unit criteria in ss 36(2)(b)(i) or (c)(i) of the Migration Act.[36]
[36] CB 594, [85]-[86].
The IAA’s decision with respect to the Second Applicant was made separately, on the same date. The IAA in that case remitted the Delegate’s Decision with a direction that the Second Applicant was a refugee within the meaning of s 5H(1) of the Migration Act,[37] and the Second Applicant was ultimately granted the Visa on 1 December 2017.[38]
[37] San Affidavit, Annexure “A”.
[38] San Affidavit, Annexure “B”.
PROCEEDINGS BEFORE THE COURT
On 4 December 2017, the Applicant filed the Application, together with an Affidavit of the Applicant, affirmed 29 November 2017 (Applicant’s Affidavit). At the time the Application was filed, the Applicant was not legally represented. The Applicant became legally represented by his current lawyers FCG Legal Pty Ltd (Applicant’s Lawyer’s) on 27 April 2020.[39]
[39] Notice of Address for Service, filed by the Applicant 27 April 2020.
On 24 October 2023, the Applicant’s Lawyers filed: the Amended Application; an Affidavit of Duy Thanh San, a Solicitor employed by the Applicant’s Lawyers (San Affidavit); and an Outline of Submissions (Applicant’s Submissions).
In the Amended Application the Applicant abandoned all the grounds of review in the Application. The grounds of review as they have been amended in the Amended Application (Grounds of Review) provide as follows:[40]
[40] Amended Initiating Application, filed by the Applicant 24 October 2024, 3-4.
The applicant relies on the following grounds in lieu of the grounds set out in his application filed on 4 December 2017.
1.The failure of the IAA to invite the applicant or his brother to an interview, and/or its failure to obtain the photographs that were presented to the delegate but not retained, before making a finding that the two men were not brothers, was unreasonable in the circumstances. (Ground 1)
Particulars
(a)The delegate had interviewed the applicant and his brother in person and had the benefit of considering their demeanour.
(b)The delegate viewed photographs that were presented during the interview but not retained by the delegate.
(c)The delegate accepted the applicant’s claim to be the brother of his co-applicant.
(d)The IAA did not have the benefit of seeing the applicant or his brother give evidence or seeing the photographs presented in the interview.
(e)The IAA declined to invite either the applicant or his brother to an interview.
(f)The IAA failed to exercise its power to obtain the photographs from the applicant, his brother or their representative.
(g)The IAA departed from the delegate’s finding that the two men were brothers.
(h)The IAA’s finding was unreasonable in the circumstances.
2. The IAA erred in its assessment of new information under s 473DD of the Migration Act (Ground 2)
Particulars
(a)The IAA failed to consider the criterion in s 473DD(b)(ii) before making a finding that there were not exceptional circumstances to consider the ‘Oncall Information’.
(b)The IAA misconstrued s 473DD and misconceived its task under the Act in that it erred by conflating the substantive consideration of the information with the preliminary assessment required by s 473DD in relation to the ‘Dr Aidani Information’.
(c)Each of the above errors were material and independently constituted jurisdictional error.
(Words in bold added, otherwise without alteration)
At the Hearing both the Applicant and the Minister were represented by Counsel. At the conclusion of the Hearing Judgment was reserved.
At the Hearing:
(a)Counsel for the Applicant relied on: the Amended Application; the San Affidavit; and the Applicant’s Submissions;
(b)Counsel for the Minister relied on: the Response, filed 22 December 2017; and the Minister’s Submissions; and
(c)Both parties relied upon the Court Book and the Joint List of Authorities, filed 16 November 2023.
The Court has also considered the transcript of the Hearing, where both Counsel for the Applicant and Counsel for the Minister made comprehensive submissions.
The Court will now consider each of the Grounds of Review.
CONSIDERATION
Ground 1
Ground 1 contends that the IAA acted unreasonably in failing to invite the Applicant or the Second Applicant to an interview and/or by failing to obtain the photographs that were presented to the Delegate, before making a finding that the Applicant and the Second Applicant were not brothers.
Counsel for the Applicant submitted that the IAA’s finding that the Applicant and the Second Applicant were not brothers was fatal to the Applicant’s case because, pursuant to s 36(2)(b) of the Migration Act, he would have been granted the Visa as a member of the same family unit as the Second Applicant.[41]
[41] Transcript P3:L13-20.
Counsel for the Applicant submitted that what was relied upon by the Delegate to support the finding that the Applicant and the Second Applicant were brothers in the Delegate’s Decision, included their manner of presenting, and the Delegate’s viewing of photographs of them together, spontaneously presented at interview.[42] Such photographs were reportedly not retained by the Delegate and therefore not referred to the IAA.[43] In addition, the IAA did not conduct an interview with the Applicant or the Second Applicant, as the Delegate had.
[42] Transcript P3:L22-45; CB 385.
[43] CB 385, footnote 1.
In light of the above, Counsel for the Applicant submitted that there existed an ‘informational gap’ between the Delegate and the IAA similar to that of the kind referred to by High Court in ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; (2020) 269 CLR 439 (ABT17) at [13]. It was the IAA’s failure to exercise its powers to bridge such an informational gap, such as those given by s 473DC of the Migration Act, which was submitted by the Applicant to be legally unreasonable.[44]
[44] Transcript P5:L38-40.
Counsel for the Applicant took the Court to paragraph [30] of ABT17 in support of the above submission wherein the plurality of the High Court stated as follows:
30.To be clear, the breach of the reasonableness condition by the Authority lay not in evaluating the review material for itself to arrive at a different assessment of credibility than did the delegate, but in failing in the circumstances to use the powers at its disposal to get and consider new information in order to supplement the review material so as to place itself in as good a position to assess credibility as had been the delegate.
It was therefore the Applicant’s case that a similar unreasonableness to that found in ABT17 existed in the IAA Decision, such that although it was open for the IAA to depart from the Delegate’s findings that the Applicant and the Second Applicant were brothers, it was unreasonable to do so without first exercising its powers to obtain and consider for itself the material upon which the Delegate’s findings were based.
Counsel for the Minister submitted that the interpretation of ABT17 adopted by the Applicant in this matter is ‘a very particular and very narrow one’, and that they are essentially seeking to expand the position of the High Court in that case with respect to circumstances in which the IAA will be obliged to get new information.[45] Alternatively, Counsel for the Minister submitted that it is not in every case that the IAA is required to interview and that ABT17 demonstrates the fairly settled position that simply taking a different view from the Delegate does not mean that the IAA will be disadvantaged in comparison to the Delegate.[46]
[45] Transcript P19:L39-P20:L10.
[46] Transcript P21:L19-23.
Further, Counsel for the Minister submitted that there was no need for the IAA to consider getting new information, whether it be by interview or the photographs, in circumstances where no express reliance on familiar resemblance or demeanour of the Applicant and the Second Applicant was made by the Delegate in the Delegate’s Decision.[47]
[47] Transcript P23:31-P24:L10.
I agree with the Minister’s submissions and consider that the IAA did not act unreasonably in choosing not to exercise its powers under s 473DC of the Migration Act to obtain further information before making a finding that the Applicant and the Second Applicant were not brothers. This is because the IAA was not obliged to obtain information before it took a different view as to the Delegate in circumstances where such a view was not reached on the same basis.
ABT17 does not lend support to Ground 1 as the Applicant contends, but rather, the plurality of the High Court provides that the limited exception obligating the IAA to bridge an ‘informational gap’ arises only where a credibility determination is based on an applicant’s demeanour. In the present case, the IAA Decision makes plain that its findings were based upon the material before it, including country information and identity documents.[48]
[48] CB 590-1, [67]-[70].
No jurisdictional error can be found in accordance with Ground 1. Ground 1 is therefore dismissed.
Ground 2
In Ground 2, the Applicant contends that the IAA committed separate and distinct material jurisdictional errors in its assessment of ‘new information’ under s 473DD of the Migration Act with respect to the Oncall Information and the Dr Aidani Information.
Section 473DD of the Migration Act, as it was at the time of the IAA Decision, reads as follows:
Considering new information in exceptional circumstances
473DDFor 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 satisfied 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 plurality of the High Court in AUS17 vMinister for Immigration and Border Protection [2020] HCA 37; (2020) 269 CLR 494 (AUS17) addressed the assessment to be conducted under s 473DD of the Migration Act. Their Honours held, at [11], that a decision-maker will fall into error unless new information is assessed first against the criteria specified in subs 473DD(b)(i) and (ii) and, if either of these criteria are met, then against the criterion specified in s 473DD(a) of the Migration Act, for which the circumstances in subs 473DD(b)(i) and (ii) must be ‘factored into’.
The approach to applying s 473DD of the Migration Act as set out by the High Court in AUS17 is well settled and was not in dispute between the parties in this matter. The question for the Court therefore is whether or not this approach was followed in the IAA Decision. The Applicant answers such a question in the negative with respect to both the Oncall Information and the Dr Aidani Information. Alternatively, the Minister submits that the IAA Decision did substantively follow the correct approach, when examined on the whole and noting that it is not necessary to refer to particular subsections of the Migration Act.
The Court notes that the excerpt of the IAA Decision relevant to Ground 2 is found in paragraph [7] of the IAA Decision, wherein the IAA states as follows:
For the reasons below I find the following information to be new information which does not satisfy the requirements of s 473DD:
•Email correspondence from Oncall dated 15 March 2017 submitted on 16 March 2017. This email concerns the applicant’s funds at a time post-dating the decision, relevant to adverse information put to him and relied on by the delegate. However, the applicant provided copies of bank statements to the delegate demonstrating a relatively low balance. Information that there were insufficient funds in whatever account was provided to Oncall for payment in March 2017 and does not, without more, add anything further. While I am satisfied the information could not have been provided prior to the decision being made I am not satisfied that is an exceptional circumstance to justify considering this particular new information, or that there are otherwise exceptional circumstances to justify its consideration.
•Letter from Dr Mammad Aidani dated 16 March 2017, submitted that same date, relating to his opinion of the first applicant’s academic and professional background, and information regarding Dr Aidani’s professional background. This material was not before the delegate and I find it to be new information. Dr Aidani’s opinion is based on his assessment of the applicant’s Persian language skills and discussion of technical matters in his claimed field of expertise. This letter post-dates the delegate’s decision and so could not have been provided earlier, and contains credible personal information, being the author’s genuine views about the applicant’s background. However, I am not satisfied there are exceptional circumstances to justify considering the letter or other information regarding Dr Aidani’s background. While I have accepted above that the applicant may not have been aware that his academic background was in issue, and I accept Dr Aidani has qualifications in a field similar to that of the applicant, and in linguistics, his impression of the applicant’s background has been formed through discussions with the applicant rather than any personal knowledge of the applicant’s history in Iran. I have found information from Dr Hoori, who claims to have known the applicant in Iran, to meet the requirements of s.473DD. I am not satisfied that there are exceptional circumstances to justify considering the new information from Dr Aidani.
Oncall information
The Applicant submits that the IAA’s consideration of the Oncall Information as found in paragraph [7] of the IAA Decision demonstrates a misapplication of the accepted approach to s 473DD of the Migration Act. In particular, it is submitted that the IAA erred by using its finding under s 473DD(b)(i) ‘as a proxy’ for whether there are exceptional circumstances that justify the consideration of the information under s 473DD(a), as well as having no reference to s 473DD(b)(ii) before making a finding in relation to s 473DD(a).[49]
[49] Applicant’s Outline of Submissions filed 24 October 2023 (Applicant’s Submissions), [31]; Transcript P12:L24-31.
Such an error by the IAA was submitted by the Applicant to mirror that as described by the Federal Court in AUS17.[50]
[50] Applicant’s Submissions, [32]; Transcript P13:L11-30; AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; (2020) 269 CLR 494at [20].
The Minister disputes the Applicant’s submission with respect to the IAA’s consideration of the Oncall Information under s 473DD of the Migration Act. It is submitted that when the first dot point of paragraph [7] of the IAA Decision is read ‘as a whole’, it cannot be inferred that s 473DD(b)(ii) was overlooked merely because the Oncall Information was not expressly accepted as credible personal information.[51] Rather, that paragraph of the IAA Decision contains statements referable to s 473DD(b)(ii) and in any event, the IAA was not required to explicitly reference s 473DD(b)(ii) in circumstances where it was not in issue and in the making of a procedural decision.[52]
[51] First Respondent’s Written Submissions filed 8 November 2023 (Minister’s Submissions), [36]-[37]; Transcript P25:L29-46.
[52] Transcript P25:L31-33; P26:L1-3.
I agree with the submission of the Applicant that the IAA only assessed the information under s 473DD(b)(i) before moving on to consider whether there existed exceptional circumstances justifying the consideration of the information under s 473DD(a). I do not consider there to have been any consideration by the IAA to be referable to the question of whether the Oncall Information was personal credible information which may have had an effect on its consideration in the IAA Decision. The IAA therefore erred in the application of s 473DD of the Migration Act.
A question of materiality then arises, namely, whether the IAA Decision not to consider the Oncall Information in its assessment of the Applicant’s claims would have made a difference to the IAA Decision.
The test or standard of materiality was described by the High Court in Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 96 ALJR 737, at [33] as ‘undemanding’ and requiring consideration not of how a party may have taken advantage of a lost opportunity but just that they would have done so.
The Applicant submits that the Oncall Information was material to the IAA Decision due to the support it provided to the Applicant’s claim that his bank account had been frozen and that he had low funds, a claim which was rejected by the IAA.[53] Alternatively, the Minister submitted that the Oncall Information ‘adds nothing to the pool of evidence’ before the IAA in circumstances where the IAA had copies of records from a bank account of the Applicant and the Second Applicant which it ultimately considered of limited value in supporting the Applicant’s claims.[54] Therefore, I conclude that the Applicant was not deprived of a realistic possibility of a successful review outcome by virtue of the omission of the Oncall Information.
[53] CB 586, [61].
[54] Minister’s Submissions, [37]; Transcript P28:L29-41; CB 586, [58]-[61].
I agree with the Minister’s submissions as to materiality and note that it is apparent from the IAA’s examination of the Oncall Information under s 473DD of the Migration Act, albeit erroneous, that more information as to the Applicant’s funds would not have been persuasive to the IAA nor led to a different outcome on the review.
Ground 2 is therefore dismissed insofar as it relates to the Oncall Information.
Dr Aidani Information
The error submitted by the Applicant to have been committed by the IAA in its assessment of the Dr Aidani Information under s 473DD of the Migration Act lies in its substantive consideration of the information,[55] going beyond its statutory task. That is, the IAA, in considering whether exceptional circumstances existed to justify considering the information, gave consideration to the information in such a way that is reserved only for that information in respect of which the threshold question has already been answered in the affirmative.[56]
[55] Applicant’s Submissions, [33].
[56] Transcript P14:L14-21.
Counsel for the Applicant at the Hearing referred to the decision of Bromberg J in CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 (CSR16), where His Honour said, at [41] and [42]:
41In my view all that the “credible” element of the s 473DD(b)(ii) criteria requires is the Authority’s satisfaction that the “new information” is information which is open to be or capable of being accepted by the Authority as truthful (or accurate, or genuine). It is only at the deliberative stage of its review that the Authority will be required to determine whether or not the “new information” is true. The s 473DD(b)(ii) criteria is concerned with an earlier or anterior stage of the review directed at whether “new information” should be received by the Authority so that it may be considered at the deliberative stage.
42The criteria is a filtering mechanism designed to separate information worthy of consideration at the deliberative stage from that which is not. In that context, the word “credible” is used in relation to information, not in the sense that the information is believed, but in the sense that the information is capable of being believed. […]
The assessment of the Dr Aidani Information in paragraph [7] of the IAA Decision under s 473DD was submitted to be inconsistent with the ‘filtering mechanism’ described in CSR16 so as to give rise to jurisdictional error.[57]
[57] Transcript P15:L9-21.
The Minister on the other hand, submits that the present matter is distinguishable from the specific application of s 473DD(b)(ii) found in CSR16.[58] Rather, the IAA’s assessment of the Dr Aidani Information, accepting that subs 473DD(b)(i) and (ii) have been dealt with, can be referred to s 473DD(a), which is a broad test and where regard may be had to all relevant circumstances in coming to a conclusion about whether there are exceptional circumstances.[59]
[58] Minister’s Submissions, [39]; Transcript P26:L17-20.
[59] Minister’s Submissions, [40]; Transcript P26:L9-15.
I agree with the Minister’s Submissions and accept that the IAA assessed the Dr Aidani Information under s 473DD without error, first having regard to subs 473DD(b)(i) and (ii) and then s 473DD(a). This latter assessment under s 473DD(a) involved consideration of the information as it related to the Applicant’s claims and was appropriate in circumstances where it was entitled to do so.
No jurisdictional error can be found in Ground 2. Ground 2 is therefore dismissed.
CONCLUSION
The Amended Application failed to identify any jurisdictional error in the IAA Decision and therefore must be dismissed.
At the Hearing, Counsel for the Minister sought costs fixed in the scale amount, as prescribed in Item 3, Division 1, Part 2 of Schedule 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).[60] Accordingly, I will make an Order that the Applicant pay the Minister’s costs in the sum of $8,371.30.
[60] Transcript P32:L42.
I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment of Her Honour Judge C.E. Kirton KC. Associate:
Dated: 16 February 2024
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