FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The notice of contention be upheld in part.

3.    Within 14 days hereof, the parties are to seek to agree orders, including as to costs, which give effect to these reasons for judgment. If they are unable to agree, within that time each should file and serve a brief outline of written submissions, not to exceed five pages in length, setting out the orders for which they contend and why.

4.    Final orders, including as to costs will be made on the papers and without another oral hearing.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    The Minister for Immigration and Border Protection (the Minister) appeals from a decision dated 1 February 2017 of the Federal Circuit Court of Australia (FCCA). In brief, the Minister complains that he was denied procedural fairness because the issue on which the FCCA upheld the first respondent’s judicial review challenge was not raised by the first respondent at any time and the Minister did not have an opportunity to address the issue. In addition, the Minister complains that the primary judge erred in the approach he took to the issue of complementary protection under s 36(2)(aa) of the Migration Act 1958 (Cth) (the Act). There is also a notice of contention, which raises three grounds.

2    For the reasons given below, the appeal should be allowed. The notice of contention should also be upheld in part.

Summary of background facts

3    The relevant background facts are not in dispute. Drawing primarily on the primary judge’s description of them, they may be summarised as follows. The first respondent was born in Iraq but says that he is a citizen of Iran by descent and is a Sabean-Mandaean from the Province of Ahwaz. He applied for a protection visa on 13 August 2015 and claimed to fear persecution in Iran on the basis that he is a member of the Sabean-Mandaean community and also because he is an Arab. He relied on both ss 36(2)(a) and (aa) of the Act. On 17 February 2016, he was refused a protection visa by the Minister’s delegate. His matter was referred to the Immigration Assessment Authority (IAA) under Pt 7AA of the Act. Amongst the material provided to the IAA by the Secretary was a certificate which had purportedly been made pursuant to s 473GB(5) of the Act. It post-dated the delegate’s decision. On 11 April 2016, the IAA affirmed the delegate’s decision. This is the decision which was judicially reviewed in the FCCA.

4    Broadly, the IAA accepted that the first respondent was of the Sabean-Mandaean faith and that such people “face harassment by authorities” which is “intensifying”. It accepted that such people face discriminatory treatment and that the acts of discrimination are not trivial. Nevertheless, the IAA concluded that it was not satisfied that the discrimination would amount to serious harm. The IAA accepted that the first respondent would be associated with the Arab community by both Iranian authorities and society at large. Although accepting that there is a “high level of societal discrimination against Arabs”, including the first respondent, and that the risk of violence would “increase dramatically” for Arabs who attempt publicly to assert cultural or political rights, the IAA concluded that it was not satisfied that the first respondent would become politically active on return to Iran because he did not practice his religion often. The IAA also concluded that the “high level” of discrimination that the first respondent would face did not amount to serious harm in the first respondent’s particular circumstances. The IAA made express reference to various country information in relation to these findings, including a report dated 29 November 2013 by the Department of Foreign Affairs and Trade (DFAT), as well as a report dated 16 January 2013 by the Home Office of the United Kingdom.

5    It is desirable to set out [28]-[30] and [36] of the IAA’s reasons, which explain why the IAA rejected the first respondent’s claims regarding persecution (footnotes omitted):

28.    I accept the applicant belongs to a religious minority and country information supports religious minority groups in Iran, including Sabean Mandaeans, face discriminatory treatment. While the acts of discrimination against Sabeans Mandaeans are not trivial, I have taken into consideration the personal circumstances of the applicant and considered how this treatment will affect him and whether there is a real chance he will face serious harm upon return to Iran.

29.    Based on his own evidence the applicant did not practise his religion while in Iran, and only attended the temple on special occasions. He was not a prominent member of the Sabean community. During the protection visa interview, the applicant detailed that he has been able to attend the Mandi, the place of worship for Mandaeans and that there were two Mandi’s near his house in Ahwaz. While I note the applicant did not and does not practise regularly, he was able to practise and participate in religious activity in Iran when he chose to do so and that despite country information indicating that there may be some interference with religious activity, I am not satisfied the applicant would be prevented from practising in a similar manner in the future.

30.    I have considered the acts of discrimination on account of the applicant’s religion individually and in their totality but am not satisfied it amounts to serious harm in his particular circumstances. Despite the applicant’s business being robbed as well as restrictions on him gaining employment within the public sector, the applicant has demonstrated the capacity to subsist and earn a livelihood in the past and there is no evidence before me to indicate that he cannot continue to be self-employed or work in the private sector in the future. I note the applicant would not be able to access higher education if he sought to do so. The applicant is past school age and I accept a denial of obtaining a higher education is unfavourable treatment, however there is no evidence before me to indicate the applicant cannot continue to access other forms of employment, including operating his own business, despite not gaining access to higher education. I note there is a possibility the applicant may face limitations in accessing medical treatment upon return, country information only states a limitation and not denial of accessing medical treatment. The applicant claimed that his family were threatened to be killed on account of their religion and if he returns to Iran he will be attacked and murdered. There is no country information before me to indicate that the discrimination or harassment extends to any harm causing physical mistreatment. The only information before me is that of two Mandaean boys being killed in a minor road accident in 2013, however there is no evidence the accident was a result of religious based discrimination or persecution. I have taken into consideration the country information in relation to the applicant and his personal circumstances in their totality and considered the threshold of serious harm. I have already found the applicant will face discrimination and harassment upon return to Iran and acknowledge this is not trivial. However, in the applicant’s circumstances I do not accept that the level of this harassment and discrimination against the applicant on account of his religion will hinder his capacity to subsist, or result in significant physical harassment or ill-treatment or any other type of serious harm. I am not satisfied the harm feared amounts to serious harm and therefore find there is no well-founded fear of persecution on account of the applicant’s religion.

…

36.    I have also taken into consideration whether the applicant’s treatment on return will be greater considering both his religion and association to the Arab community, or will amount to serious harm when considered cumulatively. The country information does not indicate Sabeans from Ahwaz who are associated with the Arab community face a level of discrimination or harm beyond that faced by Sabeans generally. The applicant does not have a profile which would attract the adverse attention of the authorities, apart from his illegal departure from Iran, which is considered below. I am not satisfied the applicant will become politically active on return to Iran and based on his own evidence, he does not practise his religion often, even in Australia where is has the liberty to do so. I am not satisfied that the harm which I have found the applicant will face on account of his religion and association with the Arab community amounts to serious harm, either alone or cumulatively.

6    The IAA’s reasons for rejecting the first respondent’s claim for complementary protection are principally set out in [51] and [52] of its reasons for decision (footnotes omitted and emphasis added):

51.    I have found that the applicant will face harassment and discriminatory treatment upon return to Iran on account of belonging to the Sabean Mandaean faith and as being associated with the Arab community. For the following reasons, I find this treatment does not amount to significant harm. Country information indicates that those from a religious or ethnic minority group are subject to discrimination in access to education, employment, adequate housing, political participation and cultural rights. In addition, the applicant being Sabean has limitations in respect to his religious freedom and I have noted one source of country information which indicates he will have limited access medical services. I find access to school education does not impact the applicant as he is already past the age of attending school, but he will be denied access to higher education if sought to access this. I also note the applicant will be limited in his employment opportunities and I have accepted his business has been robbed in the past. I find he will have access to employment in the private sector or be self-employed, but that he will be denied access to government jobs. There is limited information available in respect to the limitations placed on Sabeans accessing medical treatment, however given that the information refers to limitations rather than denial of treatment, I find that he will not be denied access to all medical services. The applicant will also have housing upon returning to his hometown of Ahwaz as his family continue to live there. I note the applicant has raised a claim to the IAA that he has participated in political activities in Iran and Australia, however for the reasons outlined above, I have not considered this. On the evidence before me, I find the applicant is not a member of any political party and only practises his religion rarely. I am not satisfied the applicant will increase his religious activity or raise his political profile in the reasonably foreseeable future. In taking into consideration the treatment the applicant will face, I find the country information before me does not indicate he will be arbitrarily deprived of his life or have the death penalty carried out on him. There is also no evidence that he will be subject to torture. I accept that the applicant will face a disadvantage and potentially humiliation as a result of this treatment. However, in taking into consideration these acts and omissions both individually and in their totality, in the applicant’s particular circumstances I am not satisfied it rises to the level that meets the relevant threshold for cruel and inhuman treatment or punishment or degrading treatment or punishment as defined in ss.36(2A)(d)-(e) and 5(1) of the Act.

52.    In considering the treatment cumulatively, I am not satisfied there is a real risk that the applicant will be arbitrarily deprived of his life or that the death penalty will be carried out on him. There is not a real risk that the applicant will be subject to torture, cruel or inhuman treatment or punishment or degrading treatment or punishment. I am not satisfied there is real risk the applicant will face significant harm.

The FCCA proceedings

7    The first respondent’s amended judicial review application raised two grounds. The first was that the IAA misapplied the “real chance” test in s 5J(1)(b) of the Act and failed properly to reach the requisite level of satisfaction which was required by s 36 of the Act. There were eight particulars provided in respect of ground 1. The sixth particular (i.e. (f)) should be noted:

f.    The real chance test obliged the IAA to consider the possibility that it was wrongly unsatisfied that the applicant would not become politically active in the future. In particular, the real chance test required the IAA to consider the likelihood that the applicant would in the future protest against the discrimination that the IAA found he would actually face and the possibility that the applicant would not protest out of fear of the violence that would result.

8    The second ground was that the IAA had acted on an invalid certificate issued under s 473GB or, alternatively, denied the first respondent procedural fairness.

9    The primary judge summarised relevant provisions in Pt 7AA of the Act, with particular reference to the provisions therein relating to “new information”.

10    It is convenient to set out s 473GB, which deals with the disclosure of certain information. Section 473GB relevantly provides:

473GB    Immigration Assessment Authority's discretion in relation to disclosure of certain information etc

(1)    This section applies to a document or information if:

(a)    the Minister has certified, under subsection (5), that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 473GA(1)(a) or (b)) that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or

(b)    the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence.

(2)    If, in compliance with a requirement of or under this Act, the Secretary gives to the Immigration Assessment Authority a document or information to which this section applies, the Secretary:

(a)    must notify the Authority in writing that this section applies in relation to the document or information; and

(b)    may give the Authority any written advice that the Secretary thinks relevant about the significance of the document or information.

(3)    If the Immigration Assessment Authority is given a document or information and is notified that this section applies in relation to it, the Authority:

(a)    may, for the purpose of the exercise of its powers in relation to a fast track reviewable decision in respect of a referred applicant, have regard to any matter contained in the document, or to the information; and

(b)    may, if the Authority thinks it appropriate to do so having regard to any advice given by the Secretary under subsection (2), disclose any matter contained in the document, or the information, to the referred applicant.

(4)    If the Immigration Assessment Authority discloses any matter to the referred applicant under subsection (3), the Authority must give a direction under section 473GD in relation to the information.

(5)    The Minister may issue a written certificate for the purposes of subsection (1).

11    As to ground 1 of the judicial review application, the primary judge noted that the IAA had refused to consider the new information provided by the first respondent concerning his political activities and that he did not challenge that decision in his judicial review action. The primary judge added that the excluded new information, if it had been accepted and believed, may well have changed the outcome for the first respondent but the information had been excluded from consideration by the IAA.

12    After setting out various paragraphs from the IAA’s reasons for decision, including its references to country information, the primary judge stated in [73] of his reasons for judgment that the essence of the IAA’s reasoning was that the first respondent did not face a real chance of serious harm or a real risk of significant harm on return to Iran by reason of his religion and ethnicity unless he publicly asserted cultural and political rights. In addition, the IAA did not consider some new information which indicated that the first respondent had publicly asserted those rights in the past and the IAA reasoned that he would not do so in the future. The primary judge rejected the first respondent’s claim that the IAA had misapplied the “real chance” test, but his Honour found that one aspect of ground 1 should be upheld. It is not entirely clear which specific particular in ground 1 the primary judge had in mind in concluding that the IAA had fallen into error, in considering the first respondent’s claim to complementary protection.

13    His Honour’s reasoning may be summarised as follows.

14    First, the IAA had reasoned that the first respondent did not face a real chance of serious harm or a real risk of significant harm if he were returned to Iran by reason of his religion and ethnicity unless he publicly asserted cultural and political rights.

15    Secondly, the primary judge did not accept the first respondent’s contention that the IAA was obliged to consider the risk he confronted if he were returned to Iran in the event that the IAA was wrong to find that he had not engaged in political activity in the past. (The correctness of this finding is the subject of ground 1 of the notice of contention.)

16    Thirdly, the primary judge found that the IAA fell into error, with particular reference to its consideration of the first respondent’s claim to complementary protection. It is desirable to set out [75] of the primary judge’s reasons for judgment which contains his Honour’s reasoning for this conclusion:

75.    Nevertheless, I accept that the IAA fell into error, in particular in considering the applicant's claim to complementary protection. The IAA appeared to accept the country information from DFAT and the UK Home Office that Arabs were subject to significant harm if they asserted political, economic and cultural rights. The IAA's finding that the applicant had not and would not publicly agitate in support of such rights was not a complete answer to the applicant's claim to complementary protection. The IAA needed to consider whether the denial of such rights by the Iranian state involved a relevant breach of the International Covenant on Civil and Political Rights (ICCPR) such that the mere act of asserting those rights would expose a person to a real risk of significant harm. This, in my opinion, necessarily involved a dual consideration of, first, whether there was a relevant denial of rights under the ICCPR and, secondly, whether the applicant's non exercise of those rights was a consequence of that denial, and because of the risk of harm resulting from an attempted exercise of them.

17    As to ground 2 of the judicial review application, the primary judge said that it was not strictly necessary to deal with it. However, after referring to both Beach J’s judgment in MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081; 243 FCR 1 (MZAFZ) and the Full Court’s decision in Minister for Immigration and Border Protection v Singh [2016] FCAFC 183; 244 FCR 305 (Singh), his Honour concluded at [79] that the first respondent’s circumstances were distinguishable because of “the significantly different statutory regime in which the IAA operates”. His Honour said that he accepted the Minister’s submission that the principle in MZAFZ is inapplicable in the context of s 473DA of the Act and “the much more limited obligation of disclosure under s 473DE(1)” (at [79]).

The appeal

18    The Minister’s notice of appeal raises two grounds. The first is that he was denied procedural fairness. This is because in determining the claim for complementary protection, the primary judge held that the IAA was required to consider whether the denial of political, economic and cultural rights in Iran involved a relevant breach of the International Covenant on Civil and Political Rights (opened for signature 16 December 1966. 999 UNTS 171. (entered into force 23 March 1976)) (ICCPR). This, in turn, required the IAA to consider whether this would result in the denial of the first respondent’s rights under the ICCPR and if the non-exercise of these rights was a consequence of that denial (the Dispositive Issue). The Dispositive Issue was not raised by the first respondent in any of his written or oral material, nor raised by the primary judge at the hearing.

19    The second ground of appeal is that the primary judge erred in holding that, in considering the first respondent’s claim for complementary protection, the IAA was required to determine the Dispositive Issue. Rather, his Honour ought to have held that the IAA applied the correct test under s 36(2)(aa) of the Act.

20    The parties’ respective submissions in relation to these two grounds may be summarised as follows.

Ground 1 of the notice of appeal

21    The Minister complained that it was procedurally unfair for the FCCA to decide a case on a point not raised by one of the parties or by the Court itself prior to judgment, citing Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89 at [132], Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; 252 CLR 38 at [156]-[157] and Shrestha v Migration Review Tribunal [2015] FCAFC 87; 229 FCR 301 at [37]-[44]. The Minister submitted that if the ICCPR had been raised as a relevant issue, he would have drawn the primary judge’s attention to cases such as Minister for Immigration and Citizenship v MZYYL [2012] FCAFC 147; 207 FCR 211 (MZYYL) and Minister for Immigration and Border Protection v SZSWB [2014] FCAFC 106 (SZSWB).

22    The first respondent submitted that the issue the subject of the Minister’s claim of procedural unfairness was sufficiently raised by [17] of the first respondent’s submission below, which stated that “the IAA did not consider why the applicant might not become politically (sic) active” (emphasis in original). In any event, the issue being one of law, the first respondent submitted that this Court would decide the matter for itself if the Minister had been caught by surprise below.

Ground 2 of the notice of appeal

23    In support of ground 2, which relates to the primary judge’s identification of error by the IAA in respect of the complementary protection claim, the Minister submitted that the primary judge made the following three errors:

(a)    The terms of the ICCPR were not relevant to the determination of the first respondent’s claims for complementary protection under s 36(2)(aa) of the Act, which does not directly incorporate any international convention or treaty into Australian domestic law. That provision contains an exhaustive definition of the phrase “significant harm” and the definitions and text of s 36(2)(aa) indicate that the Parliament did not intend by those provisions to implement in their entirety Australia’s obligations under, relevantly, the ICCPR. This was said to be consistent with MZYYL at [18]-[20] and also with the observations of Kiefel CJ, Nettle and Gordon JJ in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34 (SZTAL) at [1]-[5] in explaining that the text of the Act is not the same as that which is used in the ICCPR.

(b)    It was wrong of the primary judge to have assumed that the reasoning in Appellant S395/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 71; 216 CLR 473 (S395) applied to s 36(2)(aa). That is because, in contrast with s 36(2)(a), the complementary protection provision does not operate by reference to the traits or characteristics of a particular person. Furthermore, s 36(2)(aa) requires that the real risk that must be established has to arise as a necessary and foreseeable consequence of the protection visa applicant’s removal from Australia to a receiving country. Accordingly, a risk of harm that arises only because of some choice by such an applicant upon being returned to his or her country of origin is not a necessary consequence of that person’s removal. Rather, the risk arises from the person’s own conduct and choice. Thus, any risk of harm to the first respondent would not necessarily follow as a result of his being returned to Iran, but would only arise if and when he chose to engage in such conduct.

(c)    The primary judge also erred in finding that the IAA had failed to address the reasons for the first respondent’s non-exercise of his rights. The IAA’s findings were to the effect that the first respondent would not be inclined to express himself in Iran in such a way as to face a real risk of significant harm. There was no finding by the IAA that he could or should modify his behaviour upon his return to Iran. This error was said to be relevant even if the primary judge was correct to apply the reasoning in S395 to s 36(2)(aa). In oral address, senior counsel for the Minister clarified that the third error also involved a contention that, putting aside the new information which was not considered by the IAA, the first respondent did not claim that he would assert his political, economic and cultural rights if returned to Iran, nor did he claim that his failure to do so would be because of the threat of harm he faced if he did.

24    The first respondent defended the primary judge’s approach to s 36(2)(aa). That approach involved asking, in the particular circumstances, whether there might be a relevant breach of rights protected by the ICCPR because the first respondent would modify his behaviour out of fear of harm.

25    The first respondent emphasised the relevant definitions in s 36(2A) of the expression “significant harm”, and to whether a person “will be subjected to” “torture”, “cruel or inhuman treatment or punishment” or “degrading treatment or punishment”, and the further definitions of those concepts in s 5(1). He emphasised the significance of the use of the term “inflicted” in respect of the first two matters, as opposed to the term “caused” in respect of the third matter. He submitted that these terms described the immediate application of a method of harm to a person, whereas the phrase “subjected to” involved a broader concept, the effect of which was to require in an appropriate case that there be an assessment of whether a person is subjected to menaces of harm. Thus, so he submitted, a person can be “subjected to” torture even though that species of harm is not being “inflicted” upon the person in an immediate sense. Accordingly, in the circumstances here, if the first respondent does not exercise his political or cultural rights out of a fear of torture, he is “subjected to” torture (as well as to cruel or inhuman treatment and degrading treatment or punishment).

26    The first respondent submitted that the primary judge was correct to refer to the ICCPR in interpreting s 36(2A). That is because, as the explanatory memorandum to the 2011 amending legislation which inserted s 36(2A) makes clear, the amendment was intended to implement Australia’s obligations under various international treaties. Although the definition of “torture” substantially reflects the definition in Art 1(1) of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (opened for signature 10 December 1984. 1465 UNTS 85. (entered into force 26 June 1987)) (CAT) (see SZTAL at [75] and [78] per Edelman J), the expression “subjected to” in s 36(2A) reflects the language in Art 7 of the ICCPR, which provides that no person “shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”.

27    Consistently with the principle that a statute is to be interpreted and applied, so far as its language permits, such that it is in conformity with established rules of international law (citing SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; 212 FCR 235 at [59]), the first respondent submitted that it was therefore relevant to interpret s 36(2A) by reference to the international law meaning of the words “subjected to”.

28    The first respondent made detailed submissions on that topic, including citing international caselaw which indicates that a person can be “subjected to torture” because of mental or psychological anguish. The first respondent submitted that the phrase “subjected to” should also encompass threats and menaces, including the threat of torture if the first respondent were to return to Iran having regard to his particular circumstances.

29    The first respondent submitted that the IAA did not properly consider whether the risk was a necessary and foreseeable consequence. The relevant question was not whether the first respondent could avoid the infliction of harm but rather whether the menaces themselves amounted to the first respondent being “subjected to” the harm.

Consideration of the appeal

30    The history and some of the key provisions of Pt 7AA were recently summarised in AMA16 v Minister for Immigration and Border Protection [2017] FCAFC 136 at [12]-[27]. For convenience, they are as follows (emphasis in original):

12.    Part 7AA of the Act was inserted by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth). The amendments commenced on 18 April 2015. Under the amendments, a Fast Track Assessment Process (FTAP) was introduced in respect of specified adverse protection visa decisions. As explained in the simplified outline of Pt 7AA in s 473BA, the FTAP provides “a limited form of review … of certain decisions to refuse protection visas to some applicants, including unauthorised maritime arrivals who entered Australia on or after 13 August 2012, but before 1 January 2014, and who have not been taken to a regional processing country”. Significantly, while emphasising that the objective of the IAA is to provide a mechanism of limited review that is efficient, quick and consistent with Div 3 (conduct of review), the simplified outline also expressly emphasises that the objective is to provide a mechanism of limited review that (within the relevant context) is “free of bias” (see also s 473FA(1), which is discussed in [26] below).

13    Before describing other key relevant provisions of Pt 7A it is convenient to set out some extracts from the Explanatory Memorandum to the Bill which introduced Pt 7AA, which provide a helpful overview of the new regime for review of some adverse protection visa decisions:

New Part 7AA establishes the IAA and the new limited merits review framework. Under this Part, the Minister will be required to refer fast track reviewable decisions to the IAA and provide the IAA with review material as soon as reasonably practicable after the primary decision to refuse to grant a protection visa has been made under section 65 of the Migration Act. Similar to the RRT, the IAA will have the power to either affirm the decision or remit the decision to the department for reconsideration in accordance with prescribed directions or recommendations.

In carrying out its functions under the Migration Act, the IAA is to pursue the objective of providing a mechanism of limited review that is efficient and quick. While there will be discretionary powers for the IAA to get new and relevant information and to get information in the most suitable and convenient way from applicants, the IAA is under no duty to accept or request new information or interview an applicant.

As a limited review body, other than in exceptional circumstances, the IAA is prohibited from considering any new information for the purposes of making a decision, irrespective of whether the IAA obtained it through its discretionary powers or an applicant provided it of their own volition. New information will only be considered if the IAA is satisfied that there are exceptional circumstances to justify the consideration of that new information. For example, exceptional circumstances may be found where there is evidence of a significant change of conditions in the applicant's country of origin that means the applicant may now engage Australia's protection obligations. Where an applicant provides or seeks to provide the IAA with new information of their own volition, they would also have to satisfy the IAA that the new information could not have been provided to the Minister before the primary decision was made. The limited review mechanism supports the measures in the Migration Amendment (Protection and Other Measures) Bill 2014 which clarify the responsibility of asylum seekers to specify the particulars of their claim, provide sufficient evidence to establish their claim and encourage complete information to be provided upfront. The measures will prevent those asylum seekers who attempt to exploit the merits review process by presenting new claims or evidence to bolster their original unsuccessful claims only after they learn why they were not found to engage Australia's protection obligations by the Department of Immigration and Border Protection.

The IAA will be independent of the Department of Immigration and Border Protection and be established as a separate office within the RRT. The Principal Member of the RRT will be responsible for the overall operation and administration of the IAA and will be able to issue practice directions and guidance decisions to the IAA. A Senior Reviewer will be appointed to oversee the functions and operations of the IAA and perform any powers and functions delegated by the Principal Member. The Senior Reviewer and reviewers of the IAA will all be engaged under the Public Service Act 1999.

14    The IAA is established by Div 8 of Pt 7AA. The IAA is part of the Migration and Refugee Division of the Administrative Appeals Tribunal (AAT) (the Refugee Review Tribunal (RRT) has been amalgamated into the AAT). The members of the IAA include inter alia Senior Reviewers and Reviewers who, under s 473JE(1), are persons engaged under the Public Service Act 1999 (Cth) (the Public Service Act).

15    The procedure for referring a fast track reviewable decision to the IAA is set out in Div 2 of Pt 7AA. The Minister is obliged to refer a fast track reviewable decision (as defined in s 473BB) to the IAA “as soon as reasonably practicable after the decision is made” (s 473CA). At the same time as the referral is made (or as soon as reasonably practicable thereafter), the Secretary must give to the IAA certain material, which is known as “review material”, in respect of each referred decision (s 473CB(1)). The review material must include a copy of the primary decision-maker's written reasons for decision and any material provided to the primary decision-maker by the referred applicant. Significantly, the review material must also include (emphasis added): “[a]ny 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 [IAA]) to be relevant to the review” (s 473CB(1)(c)). This provision lies at the heart of the appeal.

16    The IAA is obliged to “review” a fast track reviewable decision which is referred to it under s 473CA (s 473CC(1)).

17    Division 3 of Pt 7AA describes the conduct of a review of a fast track reviewable decision by the IAA. Section 473DA is an important provision:

473DA Exhaustive statement of natural justice hearing rule

(1)    This Division, together with sections 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority.

(2)    To avoid doubt, nothing in this Part requires the Immigration Assessment Authority to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.

18    The proper construction of this provision, and whether it entirely ousts the natural justice hearing rule is raised by the notice of contention. It is notable, however, that the exclusion focusses exclusively on the first limb of natural justice, which relates to the fair hearing rule, and not the other limb relating to bias.

19    The legislative scheme obliges the IAA to conduct its review of a fast track reviewable decision referred to it by considering the review material provided to it under s 473CB, without accepting or requesting new information and without interviewing the referred applicant (s 473DB(1)). In other words, the review is generally conducted on the papers and focuses on the review material provided by the Secretary to the IAA.

20    There are provisions in Subdiv C of Div 3 concerning the IAA getting documents or information which were not before the primary decision-maker when he or she made the decision under s 65 and which the IAA considers may be relevant. Such documents or information are described as “new information” (s 473DC). It is made clear that the IAA does not have a duty to get, request or accept, any new information if requested to do so by a referred applicant or anyone else (s 473DC(2)). The IAA may, however, invite a person to give new information to it, either orally or in writing (s 473DC(3)).

21    The IAA is prohibited from considering any new information unless:

(a)    it is satisfied that there are “exceptional circumstances to justify considering the new information”; and

(b)    the referred applicant satisfies the IAA that the new information was not, and could not have been, provided to the Minister before a decision was made under s 65 or the new information is ‘credible personal information’ which was not previously known but, if known, may have affected the consideration of the referred applicant's claims (s 473DD).

22    The IAA is obliged to give certain new information to a referred applicant in the circumstances specified in s 473DE.

23    When it makes a decision on a review under Pt 7AA, the IAA is obliged under s 473EA to give a written statement, which must:

(a)    set out the IAA's decision on the review;

(b)    set out the reasons for the decision; and

(c)    record the day and time the statement is made.

24    After making the written statement, the IAA is obliged to return to the Secretary any document that the Secretary has provided to it in relation to the review and to give the Secretary a copy of any other document that contains evidence or material on which the IAA's findings of fact were based (s 473EA(4)).

25    The IAA is obliged to notify the referred applicant of its decision on a review by giving a copy of the written statement to the person within 14 days after the day on which the decision is taken to have been made (s 473EB(1)).

26    Division 5 of Pt 7AA contains provisions concerning the exercise of the IAA's powers and functions. It is desirable to set out s 473FA, which describes inter alia how the IAA is to exercise its functions:

473FA    How Immigration Assessment Authority is to exercise its functions

(1)    The Immigration Assessment Authority, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3 (conduct of review).

Note: Under section 473DB the Immigration Assessment Authority is generally required to undertake a review on the papers.

(2)    The Immigration Assessment Authority, in reviewing a decision, is not bound by technicalities, legal forms or rules of evidence.

27.    It is notable that it is explicitly stated in s 473FA(1), in carrying out its functions, the IAA is to pursue the objective set out therein and that an element of that objective is to provide a mechanism which is free of bias (and consistent with Div 3).

31    Section 473GB should also be noted, as it relates to the disclosure of information, which arises in this proceeding. The terms of that provision are set out in [10] above. In view of the central importance of ss 473DD and 473DE, the full terms of those provisions should be noted:

473DD    Considering new information in exceptional circumstances

For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

(a)    the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

(b)    the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

(i)    was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

(ii)    is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.

473DE    Certain new information must be given to referred applicant

(1)    The Immigration Assessment Authority must, in relation to a fast track reviewable decision:

(a)    give to the referred applicant particulars of any new information, but only if the new information:

(i)    has been, or is to be, considered by the Authority under section 473DD; and

(ii)    would be the reason, or a part of the reason, for affirming the fast track reviewable decision; and

(b)    explain to the referred applicant why the new information is relevant to the review; and

(c)    invite the referred applicant, orally or in writing, to give comments on the new information:

(i)    in writing; or

(ii)    at an interview, whether conducted in person, by telephone or in any other way.

(2)    The Immigration Assessment Authority may give the particulars mentioned in paragraph (1)(a) in the way that the Authority thinks appropriate in the circumstances.

(3)    Subsection (1) does not apply to new information that:

(a)    is not specifically about the referred applicant and is just about a class of persons of which the referred applicant is a member; or

(b)    is non-disclosable information; or

(c)    is prescribed by regulation for the purposes of this paragraph.

Note:     Under subsection 473DA(2) the Immigration Assessment Authority is not required to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.

32    It is convenient to address the two grounds of appeal in turn.

(a) Ground 1 of the notice of appeal

33    The Minister’s claim that he was denied procedural fairness should be accepted. We find that the Dispositive Issue was not raised by anyone prior to the FCCA publishing its reasons for judgment. Accordingly, the Minister was denied an opportunity to address the Dispositive Issue.

34    It is no answer to point to [17] of the first respondent’s written submissions below (see [22] above). That submission did not raise the ICCPR either explicitly or implicitly. It is also notable that the Dispositive Issue was not mentioned in the first respondent’s judicial review application in the FCCA.

35    We are satisfied that the failure to alert the parties to the Dispositive Issue deprived the Minister of the opportunity of addressing the merits of the Dispositive Issue. The Minister said that if he had had that opportunity, he would have drawn the primary judge’s attention to potentially relevant cases, such as MZYYL and SZSWB. The first respondent did not submit that if the matter were remitted to the FCCA the Minister had no possibility of a successful outcome.

(b) Ground 2 of the notice of appeal

36    This ground relates to the primary judge’s finding that the IAA erred in rejecting the first respondent’s claim for complementary protection. As noted above, the Minister contended that the primary judge’s finding involved three errors.

37    It is desirable to first set out some relevant provisions in the Act relating to complementary protection. Section 36(2)(aa) provided that a criterion for the grant of a protection visa under that provision is that the applicant is a non-citizen in Australia in respect of whom:

… the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.

38    Section 36(2A) identified the circumstances which constitute “significant harm”, namely that the non-citizen will be “subjected to”, inter alia:

    “torture”;

    “cruel or inhuman treatment or punishment”; or

    “degrading treatment or punishment”.

39    Sub-section 36(2B) specified various circumstances in which there is taken not to be a real risk that a non-citizen will suffer significant harm.

40    Section 5(1) contained the following relevant definitions:

“Covenant” means the International Covenant on Civil and Political Rights, a copy of the English text of which is set out in Schedule 2 to the Australian Human Rights Commission Act 1986.

…

“cruel or inhuman treatment or punishment” means an act or omission by which:

(a)    severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)    pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)    that is not inconsistent with Article 7 of the Covenant; or

(d)    arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

“degrading treatment or punishment” means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)    that is not inconsistent with Article 7 of the Covenant; or

(b)    that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

“receiving country”, in relation to a non-citizen, means:

(a)    a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b)    if the non-citizen has no country of nationality--a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

…

“torture” means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)    for the purpose of obtaining from the person or from a third person information or a confession; or

(b)    for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)    for the purpose of intimidating or coercing the person or a third person; or

(d)    for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e)    for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

41    Some of these provisions were recently considered by the High Court in SZTAL. The central issue there was whether the definitions of “cruel or inhuman treatment or punishment” and “degrading treatment or punishment” in s 5(1) of the Act required the intentional infliction of pain or suffering or an intention to cause extreme humiliation. The High Court held, by majority, that the ordinary meaning of the word “intention” applied and therefore referred to actual, subjective, intention – knowledge or foresight of a result is not to be equated with intent but may have evidential significance.

42    The relevant significance of SZTAL lies in the observations of the High Court on the contemporary approach to statutory construction and the relevance of international law and treaties to that process. Those observations may be summarised as follows:

(a)    The relevant provisions of the Act relating to complementary protection were inserted by the Migration Amendment (Complementary Protection) Act 2011 (Cth). They provide an additional basis for the grant of a protection visa which arises from Australia’s protection obligations under the CAT and the ICCPR. In brief, the protection obligations arise if the Minister has substantial grounds for believing that, “as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm”. Paragraphs (c), (d) and (e) of s 36(2A) then respectively provide that a non-citizen will suffer significant harm if, inter alia, the non-citizen will be “subjected to torture”, or “subjected to cruel or inhuman treatment or punishment” or “subjected to degrading treatment or punishment”.

(b)    The definition of “torture” in Art 1(1) of the CAT is substantially reproduced in s 5(1) of the Act. There are, however, some differences. For example the definition in s 5(1) is wider than Art 1(1) because the definition is not confined to pain or suffering which is “inflicted by or at the instigation of or with the consent of acquiescence of a public official or other person acting in an official capacity”.

(c)    The definition in s 5(1) of “cruel or inhuman treatment or punishment” departs significantly from the definition in Arts 2 and 7 of the ICCPR because the latter instrument does not define “cruel, inhuman or degrading treatment or punishment”, nor does it include a requirement of intention. As Edelman J noted at [79] of SZTAL, the concept of “cruel or inhuman treatment or punishment” in the Act “operates as an extension of the provisions in relation to torture rather than to implement any particular international obligation” (see also SZTAL at [4] per Kiefel CJ, Nettle and Gordon JJ).

(d)    The plurality in SZTAL described the contemporary approach to statutory construction at [14] (footnotes omitted):

14.    The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.

(e)    Where words in a statute are taken from an international treaty this may suggest that, where the words have a different meaning in international law, that particular meaning was intended to be imported into the statute (see at [18], citing Koowarta v Bjelke-Petersen [1982] HCA 27; 153 CLR 168 (Koowarta) at 265). But where there is no settled meaning of such words from any international law sources, the position is different. Thus, in the circumstances of SZTAL, the definition of “torture” in s 5(1) of the Act should be construed on the basis that the Parliament intended to incorporate into the statute the same effect as the corresponding provision in Art 1(1) of the CAT, but that approach does not apply to the meaning of the word “intentionally”. That is because the ICCPR does not expressly require that pain and suffering of the requisite be intentionally inflicted, nor has that provision been subsequently interpreted as importing such a requirement (see SZTAL at [4] per Kiefel CJ, Nettle and Gordon JJ).

43    SZTAL was handed down after the primary judge published his reasons for judgment in this matter (see BBS16 v Minister for Immigration & Anor [2017] FCCA 4). As noted above, the primary judge reasoned in [75] that, in circumstances where the IAA appeared to accept country information to the effect that Arabs were subject to significant harm if they asserted political, economic and cultural rights, it was an incomplete answer to the first respondent’s claim to complementary protection that the IAA found that he had not and would not publicly agitate in support of such rights. The primary judge found that the IAA needed to consider whether the denial of such rights in Iran involved a relevant breach of the ICCPR “such that the mere act of asserting those rights would expose a person to a real risk of significant harm”. The primary judge found that the IAA was required to consider whether there was a relevant denial of rights under the ICCPR and also whether the first respondent’s non-exercise of those rights was a consequence of that denial because of the risk of harm arising from any attempted exercise of the rights.

44    For the following reasons, ground 2 of the notice of appeal should be upheld. The primary judge was wrong to conclude in [75] that the IAA needed to consider whether the denial of the first respondent’s political, economic and cultural rights involved a relevant breach of the ICCPR.

45    The particular significance which the primary judge attached to the ICCPR was inconsistent with several binding authorities. These authorities make it clear that, although some aspects of the ICCPR were incorporated into domestic law by operation of some provisions in the Act, the ICCPR has not been incorporated in its entirety. The primary judge’s reasoning at [75] reveals that his Honour took a much broader view of the relevance of the ICCPR to the first respondent’s claim for complementary protection. With respect, his Honour’s view was inconsistent with at least three decisions of the Full Court of this Court and the High Court’s recent decision in SZTAL (which post-dates his Honour’s decision).

46    In MZYYL, the Full Court (Lander, Jessup and Gordon JJ) emphasised the primary importance of the relevant terms of the Act in considering a claim for complementary protection, as opposed to the terms of any international law treaties notwithstanding that the statutory complementary protection regime “engages” Australia’s express and implied non-refoulment obligations under various international law treaties, including the ICCPR. This is reflected in [18]-[20] of the Full Court’s reasons for judgment (emphasis in original):

18.    The Complementary Protection Regime provides criteria for the grant of a protection visa in circumstances where the Minister is not satisfied that Australia has protection obligations to that non-citizen under the Refugees Convention. The regime establishes criteria “that engage” Australia's express and implied non-refoulement obligations under the International Covenant on Civil and Political Rights, done at New York on 16 December 1996 (ICCPR), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, done at New York on 10 December 1984 (CAT) and the Convention on the Rights of the Child, done at New York on 20 November 1989 (CROC) (collectively the International Human Rights Treaties): Commonwealth, Parliamentary Debates, House of Representatives, 24 February 2011, 1357 (Chris Bowen, Minister for Immigration and Citizenship). The Complementary Protection Regime is a code in the sense that the relevant criteria and obligations are defined in it and it contains its own definitions: see, by way of example, the definitions in s 5 of the Act of “torture” and “cruel or inhuman treatment or punishment”. Unlike s 36(2)(a), the criteria and obligations are not defined by reference to a relevant international law. Moreover, the Complementary Protection Regime uses definitions and tests different from those referred to in the International Human Rights Treaties and the commentaries on those International Human Rights Treaties. For example, the definition of “torture” in the Complementary Protection Regime is different from that in the CAT: see s 5(1) of the Act, Art 1 of the CAT and the Explanatory Memorandum in relation to the Bill at [52]. Further, the International Human Rights Treaties do not require the non-citizen to establish that the non-citizen could not avail himself or herself of the protection of the receiving country or that the non-citizen could not relocate within that country. Sections 36(2B)(a) and (b) have adopted a different and contrary position. Sections 36(2B)(a) and (b) relieve Australia from its protection obligations in s 36(2)(aa) if those two particular circumstances are satisfied.

19    Further, the test adopted in ss 36(2)(aa), (2A) and (2B) is significant harm, not irreparable harm, being the test referred to in the General Comment No 31 on the ICCPR (Human Rights Committee, General Comment No 31: The Nature of the General Legal Obligations Imposed on State Parties to the Covenant, 80th sess, UN Doc CCPR/C/21/Rev.1/Add.13 (26 May 2004) at [12]), or serious harm, being the standard referred to and defined in s 91R of the Act.

20    It is therefore neither necessary nor useful to ask how the CAT or any of the International Law Treaties would apply to the circumstances of this case. The circumstances of this case are governed by the applicable provisions of the Act, namely ss 36(2)(aa) and 36(2B), construed in the way that has been indicated.

47    In SZSWB at [30], a Full Court constituted by Gordon, Robertson and Griffiths JJ followed the approach in MZYYL in emphasising that the “starting point” in respect of a claim for complementary protection is the words of the legislation, particularly those in s 36(2)(aa).

48    MZYYL was then applied by another Full Court (Kenny, Buchanan and Nicholas JJ) in SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69; 243 FCR 556. In that decision, the Full Court rejected the appellants’ submission that MZYYL was plainly wrong. The Full Court did not accept the appellants’ contention that the jurisprudence concerning Art 7 of the ICCPR (or the equivalent provision in Art 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (opened for signature 4 November 1950. 213 UNTS 221 art 4(2). (entered into force 3 June 1952)) assisted in resolving the meaning of some contested definitions relating to complementary protection in s 5(1) of the Act. Their Honours stated at [61] that, while it was true to say at a general level that the statutory complementary protection regime was enacted to give effect to Australia’s obligations under several international instruments, including the ICCPR, the relevant definitions in the Act “show that the Parliament did not intend by these provisions to implement the relevant obligations under … the ICCPR in their entirety”. Where, however, the statutory regime adopts the standards of an international treaty, it is necessary to consider the relevant treaty provisions and relevant jurisprudence (at [65]).

49    On appeal, a similar approach was taken by the High Court in SZTAL, which is summarised in [42] above.

50    For these reasons, in our respectful view, the primary judge erred in the emphasis he gave to the ICCPR in [75] of his Honour’s reasons for judgment. It is important to note that this paragraph was primarily directed to the first respondent’s claim for complementary protection. Different considerations arise in respect of his claim for protection under s 36(2)(a), as will become apparent when we address below ground 1 of the notice of contention.

51    A question arises whether this finding of appealable error on the part of the primary judge is affected by the notice of contention which, as will shortly emerge, will be upheld. The finding of appealable error that we have just made is to some extent overtaken by our finding below that there is further error as regards the construction and application of the phrase “exceptional circumstances” in s 473DD of the Act. As we explain, it will be a matter for the IAA on the remitter to determine whether, properly construed, s 473DD has any application to the migration agent’s submission and the accompanying material. As matters stand at present, it is unclear whether or not the IAA will conclude that it is entitled to consider any of that new information. That is a matter for future determination by the IAA. It is inappropriate for this Court to speculate as to what the ultimate outcome will be.

The notice of contention

52    The first respondent’s notice of contention, as initially filed, raised two grounds. The first was that the FCCA should have upheld his challenge on the basis that the IAA made an error of law because it misapplied both the “real chance” test in s 5J(1)(b) of the Act and the “real risk” test in s 36(2)(aa) and failed to reach the requisite level of “satisfaction” required by ss 36(2)(a) and (aa) of the Act.

53    The second ground was that the IAA acted upon a certificate which was invalidly issued under s 473GB of the Act or, alternatively, denied the first respondent procedural fairness. The Minister acknowledged that the certificate was invalid because it was based on the erroneous assumption that simply because a document is an internal working document of the Department, it is covered by s 473GB of the Act.

54    Without opposition, leave was granted to raise a third ground, namely that the IAA misconstrued the expression “exceptional circumstances” in s 473DD(b) and so constructively failed to exercise its jurisdiction, relying upon White J’s recent decision in BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958 (BVZ16).

55    The parties’ submissions on each of these three grounds may be summarised as follows.

Ground 1 of the notice of contention

56    The first respondent submitted that the primary judge should have found that IAA had misapplied the real chance test within the meaning of s 5J(1)(b) of the Act. This complaint is directed to the first respondent’s claim for protection under s 36(2)(a). The first respondent contended that the IAA was required to consider claims made by him, or claims which squarely arose from the material before the IAA, citing NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1 (NABE). Having found that persons with the first respondent’s characteristics face a high level of societal discrimination in Iran, that official harassment was “intensifying”, and that a risk of violence “increases dramatically” if a person asserts a political or cultural right, a proper application of the “real chance” test should have resulted in a favourable finding for the first respondent.

57    Moreover, the first respondent submitted the IAA erred in not considering and making relevant findings as to whether the first respondent would in fact assert cultural rights if he were to return to Iran and, instead, confined its consideration and findings to political rights.

58    As to the IAA’s finding that the first respondent would not assert a political right, because this finding was not expressed without any doubt, the IAA was obliged to consider the risk of persecution on the possibility that its finding was wrong, citing Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; 93 FCR 220 (Rajalingam) at [62] per Sackville J (with whom North J agreed) and see also Dhiman v Minister for Immigration and Multicultural Affairs [2000] FCA 221 (Dhiman) at [12] per Sundberg, Katz and Hely JJ.

59    The first respondent further contended that the IAA erred in not considering why he might not become politically active and, in particular, to consider whether this would be because he feared the harm that would follow if he was politically active, citing S395.

60    The first respondent contended that further errors by the IAA were that it gave no consideration to the consequences of the “intensifying” harassment and whether, applying the forward-looking real chance test, there was a real chance that his harassment might become “serious harm” at some future point. Moreover, he contended that, to the extent that the IAA relied upon its finding that he did not practice his religion often to conclude that he would not fight discrimination on ethnic grounds, the IAA relied upon an irrelevant or irrational consideration, citing Wei v Minister for Immigration and Border Protection [2005] HCA 51; 222 CLR 149 (Wei) at [33].

61    The Minister acknowledged that the IAA had to consider the claims made by the first respondent in considering whether he faced a “real chance” of persecution upon return to Iran, citing NABE. The Minister’s primary submission on this requirement was that, fairly read, the IAA’s reasons indicate that the IAA had met that requirement. In particular:

(a)    The IAA’s findings at [32]-[35] regarding societal discrimination faced by Arabs in Iran included a finding that the risk of discrimination increases dramatically for Arabs who attempt to publicly assert “cultural or political rights” (at [32]). Furthermore, by reference to UK Home Office country information, the IAA found that harassment of Arabs by authorities all involved Arabs being harmed as a result of their participation in various political protests. Putting aside information which the IAA had to disregard pursuant to s 473DD, the IAA noted that the first respondent had not otherwise claimed that he had participated in any political protests and that his low profile meant that there was no real chance of him facing serious harm as an Arab. The Minister submitted that the IAA’s findings dealt with the first respondent’s cultural and political rights and that there was no failure to address that part of the first respondent’s case concerning the former rights.

(b)    As to the first respondent’s reliance upon Rajalingam, the Minister submitted that the IAA had no uncertainty regarding its findings to the effect that the first respondent would not assert rights upon return to Iran such as to give rise to a real chance of serious harm. Accordingly, there was no requirement for the IAA to address the issue on a counterfactual.

(c)    As to the first respondent’s contention that the primary judge should have found that the IAA was obliged to consider whether it was through a fear of persecution that he would not become more politically active, the Minister submitted that no claim was made that the first respondent would become more politically active were it not for the risk of persecution and that he would modify his behaviour to avoid that risk.

(d)    Nor was there any failure by the IAA to consider whether intensifying harassment would become serious harm in the future because it is evident from the IAA’s findings at [29]-[30] and [36]-[37] that the IAA did make findings regarding the future on the basis of the first respondent’s return to Iran, taking into account his personal circumstances and how the discriminatory treatment would affect him, as outlined by the IAA in [28].

(e)    As to the first respondent’s submissions regarding [36] of the IAA’s reasons (the IAA’s non-satisfaction that the first respondent would not be politically active on return to Iran), the Minister submitted that this finding was not dependent upon the IAA’s finding that the first respondent does not practice his religion often. Rather, the findings at [36] reflect the IAA considering both cumulatively and individually the first respondent’s claim that he had a well-founded fear of persecution upon return to Iran as a Sabean-Mandaean and/or as an Arab.

Ground 2 of the notice of contention

62    The first respondent submitted that the s 473GB certificate was invalid because, relying upon MZAFZ, protecting an internal working document from disclosure is not a proper basis for such a certificate. He further submitted that it could be inferred that the IAA had had regard to the certificate and he emphasised that the Minister had not adduced any evidence which identified the material to which the certificate related. Accordingly, he submitted that MZAFZ applied and that it was wrong of the primary judge to distinguish that case because of the operation of s 473DA(1). He submitted that the relevant provisions of Pt 7AA should be construed on the basis that the Parliament intended that a review applicant have a meaningful opportunity to satisfy the IAA of a matter identified in s 473DD(b), citing Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 (Li) at [61] and Singh at [61].

63    Alternatively, the first respondent submitted that, applying MZAFZ, by acting upon an invalid certificate, the IAA constructively failed to carry out a review as required by s 473DB.

64    The Minister accepted that the certificate was not a valid certificate under s 473GB, applying this aspect of MZAFZ. But irrespective of whether the certificate was relied upon by the IAA, the Minister submitted that there was no jurisdictional error because the primary judge correctly distinguished this case from both MZAFZ and Singh in the light of the particular and different statutory regime in Pt 7AA, with particular emphasis on the significance of s473DA and the “much more limited obligation of disclosure under s 473DE(1)”.

65    The Minister submitted that the effect of s 473DA(1) and the absence in that provision of the words “in relation to the matters they deal with” (which appear in s 422B) meant that s 473DA(1), together with ss 437GA and 473GB, are an exhaustive statement of the natural justice hearing rule in relation to reviews conducted by the IAA.

66    This, it was submitted, is reinforced by s 473DA(2) which reaffirms that nothing in Pt 7AA requires the IAA to give to a referred applicant any material which was before the primary decision-maker. Accordingly, a fast-track applicant is not entitled by anything in Pt 7AA to be given the documents that were before the delegate when the adverse s 65 decision was made.

67    The more limited obligation of disclosure under s 473DE(1) relates entirely to particulars of new information that has been or is to be considered by the IAA under s 473DD and would form part of the reason for affirming the primary decision.

68    In contrast with the operation of provisions such as ss 360 and 425 in relation to Pt 7 reviews, s 473DB(1) obliges the IAA, subject to Pt 7AA, to review a fast track reviewable decision on the papers and there is no opportunity for the referred applicant to appear.

69    Assuming that the IAA did consider the certificate there was in any event no procedural unfairness because the statutory regime under Pt 7AA did not require the IAA to give the referred applicant a document that was before the delegate or to provide particulars which were not required to be given under s 473DE.

70    Li was said by the Minister to be distinguishable because the obligation to provide an applicant with a meaningful opportunity to participate in a review as found in that case derived from s 360, which has no application in Pt 7AA.

71    Singh was said to be distinguishable because there was no comparable provision in Pt 7AA to ss 359A and 375A (which are in Pt 5), which were central to the Full Court’s reasoning in that case. MZAFZ is similarly distinguishable by reference to the differently worded provisions in Pt 7, so submitted the Minister.

Ground 3 of the notice of contention

72    In support of this ground, the first respondent emphasised that he had sought to place before the IAA further information about his political activity, participation in political rallies, and his involvement with a football team. The new information was set out in a letter dated 23 March 2016 from the first respondent’s migration agent to the IAA. The letter was accompanied by a statutory declaration sworn by the first respondent on 21 March 2016. Relevantly, the first respondent deposed that:

    when he was 18 years old, he joined the Arab Front for Liberation of Ahwazi Province (AFLA) and that, for security reasons, he never revealed his membership to anybody, including his family members;

    his duties with AFLA included shooting videos and taking photos of the victims of discrimination, abuse, persecution and that he provided the videos and photos to his uncle, through whom he had joined AFLA;

    after being granted a bridging visa in December 2012, he moved to Sydney and became “a very active member in the Ahwazi community” and, in particular, the Sabean-Mandaean community in Sydney;

    since arriving in Sydney, he participated in demonstrations against the Iranian Government and supported the liberation and separation of Ahwaz province from what he described as the “Iranian occupation”;

    he had been told by friends that the Iranian authorities were aware of his activities in Australia; and

    in mid-2015 he joined a football team in Sydney, and that the team used a certain flag or logo on their shirts and a certain team flag, which he said constituted treason and carried capital punishment in Iran. He said that photos and videos of the football matches were published on social media and on the AFLA website and would have been seen by Iranian authorities. He said that his parents were “harassed and questioned” by Iranian authorities in 2015 because of his sporting and political activities in Australia.

73    The first respondent attached to his statutory declaration various material in further support of his application. We will summarise some of that material in [114] below.

74    This new information was summarised by the IAA in [8] of its reasons for decision. In [9] the information was described by the IAA as being “new information” because it was not before the delegate. It is desirable to set out in full [9] of the IAA’s reasons for decision. A central issue is whether, on a proper and fair reading of that paragraph, the IAA reasoned that there were no exceptional circumstances simply because the first respondent had not explained his delay in providing the information, in which case the matter would be on all fours with BVZ16, or whether the IAA took into account other relevant circumstances in concluding that it was not satisfied that there were exceptional circumstances:

This information was not before the delegate at the time of the s 65 decision, and is ‘new information’. The applicant was interviewed by a delegate of the Minister on 29 September 2015. At the beginning of the protection visa interview the applicant confirmed there was nothing in his application form which was false or misleading. He also stated, ‘I do not have anything more or less to add.’ He also made an affirmation confirming all his claims for protection were true. At the end of the protection visa interview the applicant was asked if he had put forward all his claims for protection to which he responded, ‘yes’. He was also asked if there was anything else he wanted to tell the delegate, to which he responded, ‘no’. During the protection visa interview, the applicant was also put on notice in regard to raising all claims for protection to the delegate. He was given information in the protection visa interview in respect to the limitations of providing new information if his protection visa application was refused and referred to the IAA for review. On the evidence before me the applicant has not mentioned his membership of association to AFLA or any other political organisation. The applicant has never claimed to have participated in any political protects either in Iran or Australia. The applicant’s claims of joining AFLA, playing for a [football] team in Sydney, his parents being questioned as a result of his involvement with the [football] team and participating in political rallies are all stated to have occurred prior the delegate’s decisions being made on 17 February 2016. The applicant has not provided any explanation as to why the information could not have been provided earlier. I am not satisfied there are exceptional circumstances to justify considering the new information provided by the applicant.

75    The first respondent submitted that this reasoning by the IAA involves an inappropriately narrow understanding of the phrase “exceptional circumstances” as held by White J in BVZ16 at [47].

76    As noted above, the Minister did not oppose the first respondent being able to raise this additional ground in his notice of contention but submitted that there would be cost implications if this was the only successful ground.

77    In BVZ16, White J found that the IAA had adopted an inappropriately narrow understanding of the scope of the term “exceptional circumstances” in applying s 473DD. In particular, his Honour found that the IAA was wrong to reason that there were no exceptional circumstances because the rejection of the referral applicant’s explanation for not having disclosed the new information earlier was decisive of the requirement that the circumstances be exceptional. The Minister submitted that the IAA can only consider new information if both ss 473DD(a) and (b) are satisfied. The Minister drew attention to White J’s description of these requirements as “conjunctive”. The Minister submitted, however, that White J erred in his reasoning at [9] and [35]-[36] of BVZ16 in concluding that the IAA was obliged under s 473DD to consider, and make findings on both alternative limbs of s 473DD(b) in order to be satisfied under s 473DD(a). Accordingly, so the Minister submitted, if the IAA is not satisfied as to the matter in (a), it is unnecessary for it to proceed to make findings in relation to either of the limbs in (b).

Consideration of the notice of contention

78    We will address each of the three grounds in turn.

(a) Ground 1 of the notice of contention

79    As is evident from the summary above of the parties’ respective submissions, the relevant legal principles relating to ground 1 of the notice of contention were not seriously disputed. A body such as the IAA, which is conducting an inquisitorial review process in which there is a claim for protection under s 36(2)(a) of the Act must not only consider and determine the case as articulated by the protection visa applicant, but also do so in relation to an unarticulated claim which is nevertheless raised clearly or squarely on the material before that review body (see NABE at [58]-[61] per Black CJ, French and Selway JJ).

80    The dispute between the parties focused on whether the IAA had discharged this obligation in the particular circumstances here. For the following reasons, we consider that the IAA failed to do so.

81    It is desirable to reiterate in summary form the key elements of the IAA’s findings and reasoning for rejecting the first respondent’s s 36(2)(a) claim:

(a)    The IAA acknowledged that the first respondent’s claims for protection were in part based on his religion. At [24] of its reasons for decision, the IAA accepted that the first respondent belonged to the Sabean-Mandaean faith but found that he did not practice his faith regularly. It noted at [25] that the first respondent claimed to have left Iran because of the “persecution and sectarian discrimination” he faced as a result of his religion.

(b)    By reference to country information, the IAA found that Mandaeans of Iran “have suffered harassment as a result of religious discrimination” – they are not able to talk about their faith or rituals and are considered unclean by their Muslim neighbours when touching or handling food. It found that Sabean-Mandaeans, along with other minority religious groups, face harassment by Iranian authorities by denying them access to higher education and government employment. The IAA noted at [27] that, over the past few years, the Sabean-Mandaean community, whose members are unprotected, “have been facing intensifying official harassment”.

(c)    Notwithstanding its findings that the first respondent belonged to a religious minority group and feared discriminatory treatment in Iran, the IAA was not satisfied that this amounted to serious harm in his particular circumstances. This was principally because of its findings that he did not practice his religion regularly and could practice and participate in religious activity in Iran when he chose to do so (see [29] and [30] of the IAA’s reasons for decision, which are set out in [5] above). A related finding by the IAA at [29] was that the first respondent was not “a prominent member of the Sabean community”. Implicitly, the IAA considered that more prominent members of that religious group faced a greater risk of serious harm.

(d)    The IAA then turned its attention to the first respondent’s claim based upon his association with the Arab community. The IAA accepted that he was an Arab and, having regard to country information (including the DFAT report), that there is a high level of societal discrimination against Arabs which can lead to unfair treatment, in areas such as employment and access to housing and services (see [32]). It also noted DFAT’s view that Arab Iranians who do not come to the attention of the authorities are subject to only low levels of adverse attention but that this “risk increases dramatically for Arabs who attempt to publically (sic) assert cultural or political rights”. The IAA concluded at [35] that, putting aside the impermissible new information, the first respondent had not otherwise claimed that he had participated in any political protests in the past and that his profile was not one which would attract adverse attention. Accordingly, there was no real chance of him facing serious harm on account of him being an Arab.

(e)    The IAA then cumulatively considered the first respondent’s claims relating to both his religion and his association with the Arab community. Its conclusions are set out in [36] of its reasons for decision (which is set out in [5] above). It is plain from the terms of [36] that the IAA’s rejection of the first respondent’s claims rested on its findings that, based on his past history, the first respondent did not have a prominent profile, either religiously or politically, which would attract adverse attention and that he would not change his behaviour if he were returned to Iran in respect of either his religious or his political activities.

82    Having regard to these findings by the IAA (which did not depend on any of the new information which was discarded by the IAA), in the light of S395 the IAA should have asked why the first respondent had not in the past practised his religion more extensively or been more politically active and, moreover, why he would not alter his past behaviour if he were returned to Iran. The IAA needed to inquire, and make relevant findings, as to whether this was because of the very harm which the IAA accepted confronted more prominent and active religious and political proponents. As McHugh and Kirby JJ observed in S395 at [43] (to similar effect, see Gummow and Hayne JJ at [82]):

43.    The notion that it is reasonable for a person to take action that will avoid persecutory harm invariably leads a tribunal of fact into a failure to consider properly whether there is a real chance of persecution if the person is returned to the country of nationality. This is particularly so where the actions of the persecutors have already caused the person affected to modify his or her conduct by hiding his or her religious beliefs, political opinions, racial origins, country of nationality or membership of a particular social group. In cases where the applicant has modified his or her conduct, there is a natural tendency for the tribunal of fact to reason that, because the applicant has not been persecuted in the past, he or she will not be persecuted in the future. The fallacy underlying this approach is the assumption that the conduct of the applicant is uninfluenced by the conduct of the persecutor and that the relevant persecutory conduct is the harm that will be inflicted. In many - perhaps the majority of - cases, however, the applicant has acted in the way that he or she did only because of the threat of harm. In such cases, the well-founded fear of persecution held by the applicant is the fear that, unless that person acts to avoid the harmful conduct, he or she will suffer harm. It is the threat of serious harm with its menacing implications that constitutes the persecutory conduct. To determine the issue of real chance without determining whether the modified conduct was influenced by the threat of harm is to fail to consider that issue properly.

83    Based on the IAA’s own findings, which flowed from the material before it, it had to consider whether the first respondent would not practice his faith more often and be more politically active on return to Iran because he feared the harm that would follow. Its failure to address these matters involves jurisdictional error.

84    As noted above, under ground 1 of the notice of contention, the first respondent claimed that the primary judge erred in several other respects, not limited to the S395 error. In view of his success in relation to S395 it is unnecessary to determine those other matters.

(b) Ground 2 of the notice of contention

85    As noted above, the first respondent’s challenge to the primary judge’s rejection of his case concerning the undisclosed s 473GB certificate and its related information was based on two grounds:

(a)    it was a jurisdictional error per se for the IAA to act upon the certificate, citing Beach J’s reasoning in [40] and [44] of MZAFZ; and

(b)    alternatively, notwithstanding s 473DA(1), the failure to disclose the certificate constituted a contravention of the statutory scheme in Pt 7AA relating to procedural fairness.

86    Although a copy of the certificate was included in the Appeal Book, the Minister elected not to disclose the related information. In substance, all that is known about that information is to be derived from the reference in the certificate to it being a document or information relating to an “Identity Assessment Form” contained in an identified PDF Portfolio.

87    The Minister did not contest that the certificate was invalid. Nor did he seriously dispute that the Court should infer that the IAA had considered both the certificate and the related information because of the IAA’s statement in [5] of its reasons for decision that it had “had regard to the material referred to the Secretary under s 473CB...”. It was common ground that the referred material must have included the certificate and the related information notwithstanding that the material post-dated the delegate’s decision. There is no express reference to the certificate in the IAA’s reasons for decision. Because the related information is unknown, there is no way of knowing confidently whether or not the related information is referred to the IAA’s reasons.

88    As noted above, the first respondent relied on both limbs of Beach J’s decision in MZAFZ. Focussing for the moment on the first limb, the central issue is whether Beach J’s findings and observations regarding the consequences which flow from an invalid certificate in the context of a Pt 7 proceeding also apply in the context of an invalid certificate under Pt 7AA of the Act.

89    There were essentially four steps in Beach J’s reasoning in MZAFZ in support of his Honour’s conclusion that it was jurisdictional error of itself for the AAT to act on an invalid certificate in a Pt 7 proceeding. Those steps are set out in [40]-[44] of his Honour’s reasons for judgment:

(a)    if the Tribunal acted on an invalid certificate it followed a procedure contrary to law and the purported issue of an invalid certificate by the Minister infected the process or procedure adopted by the Tribunal in relation to such documents (at [40]);

(b)    in acting on an invalid certificate, it could be inferred that the Tribunal may not have properly turned its mind to whether or not it ought to have made disclosure under ss 424AA or 424A of the Act (both of those provisions are in Pt 7) (at [41]);

(c)    if the Tribunal had realised that the certificate was invalid, it would have had to consider whether the documents supported the visa applicant’s application for a protection visa and whether disclosure of the documents should be made to the review applicant assuming that s 422B did not preclude such a requirement, possibly as part of the Tribunal’s obligations under ss 425 and 427(1)(c) (at [42] and [43]); and

(d)    for the Tribunal to have proceeded or acted on an invalid certificate was not a process according to law and of itself constituted jurisdictional error (at [44]).

90    The first respondent approached the issue of whether or not the first limb of Beach J’s analysis in MZAFZ applied to a s 473GB certification and/or notification on the basis that such material could be “new information” for the purposes of Pt 7AA and whether provisions such as ss 473DD and 473DE applied. In our view, that approach is incorrect. For the following reasons we consider that the issue is properly addressed by reference to ss 473GB and not by reference to the provisions in Pt 7AA which relate to “new information”.

91    First, generally (as is the case here) the s 473GB certificate/notification and related documents will be given to the IAA by the Secretary in discharging his or her duty under s 473CB(1)(c). Any such material would then become “review material” within the meaning of s 473CB. The IAA is obliged, subject to Pt 7AA as a whole, to consider that review material (s 473DB(1)) in discharging its statutory duty to review the decision which has been referred to it under s 473CA (s 473CC(1)).

92    Secondly, the terms of s 473DB strongly suggest that a s 473GB certificate/notification and related information are not “new information” for the purposes of Subdiv C of Div 3 of Pt 7AA. That is because that provision requires the IAA (subject to Pt 7AA as a whole) to review the referred decision by considering the review material provided to it under s 473CB (which, in the circumstances here, includes the certificate and related information) without accepting new information. We strongly doubt that the reference at the outset of s 473DB(1) to “Subject to this Part” was intended to bring in via a back door the possibility of a s 473GB certificate/notification and related information being “new information”. Rather, we consider that that phrase should be construed as referring to documents or information which are the subject of Subdiv C of Div 3.

93    Thirdly, the structure of Pt 7AA supports the view that a s 473GB certificate/notification and related information are not “new information”. As noted above, generally such material will be provided to the IAA by the Secretary acting under s 473CB(1)(c). That provision is in Div 2 of Pt 7AA. Division 3 deals with the conduct of a review by the IAA. It is notable that s 473DA (which is in Subdiv A of Div 3) provides that Div 3, together with ss 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the IAA. The provisions dealing with new information are all contained in Subdiv C of Div 3. Sections 473GA and 473GB are not contained in that Subdivision. They are located in Div 6, a separate division, which deals with disclosure of information.

94    Section 473GB applies in its terms to a document or information of a kind identified in s 473GB(1). That involves two categories:

(a)    where the Minister has certified that disclosure would form the basis of a claim for public interest immunity; and

(b)    where the matter contained in the document or the information was given to the Minister or a Departmental officer in confidence.

95    Where the Secretary gives such a document or information to the IAA in compliance with the Act the Secretary must notify the IAA that s 473GB applies (s 473GB(2)). The Secretary also has a discretion to give the IAA any written advice that the Secretary thinks relevant about the significance of the document or information. Sub-section 473GB(3) is important. It deals with the circumstances where the IAA is given a document or information and is notified (by the Secretary) that s 473GB applies. In those circumstances the IAA has two separate discretionary powers to consider, namely:

(a)    whether to have regard to any matter contained in the document or to the information; and

(b)    if it thinks it appropriate, having regard to any advice given to the Secretary under s 473GB(2)(b), to disclose to the referred applicant any matter contained in the document or the information.

96    Fourthly, having regard to the statutory regime in Pt 7AA, and s 473GB in particular, if the IAA is given a s 473GB certificate/notification and related information, it is a matter for the IAA to consider whether or not it will have regard to any matter contained in that material. One of the things which the IAA will need to consider in determining whether or not it should exercise that power is whether it considers that the certificate/notification is valid or not. If the IAA determines to have regard to any such material, it then must turn its mind to whether it thinks it appropriate to disclose any matter contained in the material to the referred applicant. In making that decision the IAA must have regard to any advice given to it by the Secretary under s 473GB(2)(b).

97    The scheme of Pt 7AA is such that the only opportunity which a referred applicant will get to comment on such material is if the IAA decides for itself to disclose the material to the applicant prior to it making a decision on the review. The regime does not create any duty on the part of the IAA (or any entitlement on the part of the referred applicant) to be involved in the IAA’s determinations as to whether the certificate/notification is valid or not, nor whether the IAA should accept or reject any written advice provided to it by the Secretary under s 473GB(2)(b). For completeness, it might be noted that, if in the exercise of its discretion, the IAA decides to disclose some material to the referred applicant under s 473GB(3)(b), the IAA must give a direction under s 473GD concerning restrictions on the publication of the relevant material or its further disclosure (s 473GB(4)).

98    As senior counsel for the Minister frankly acknowledged in oral address, this is truly “a remarkable scheme”. That is an accurate characterisation of those parts of the statutory scheme in Pt 7AA which relate to s 473GB certificates and notifications because of the severe limitations imposed upon disclosure to the referred applicant of any such certificate/notification and the related material, no matter how prejudicial or favourable the material may be. Moreover, even though the discretionary powers conferred upon the IAA by s 473GB have to be exercised reasonably in the legal sense, the opportunity for a referred applicant to challenge the exercise or non-exercise of those discretionary powers will in practice be limited because the person normally will have no knowledge or awareness of the existence of the certificate/notification or related information. That will be the case even if the IAA has had regard to such material in conducting its review but has determined, in its discretion, not to disclose the existence of that material or any of its contents.

99    For these reasons, we consider that the first limb of Beach J’s analysis in MZAFZ has no application to a Pt 7AA review.

100    For similar reasons, Beach J’s second limb has no application. That is because a referred applicant’s “procedural fairness” entitlements in respect of a s 473GB certificate/notification and related information are exhaustively stated in s 473GB(3). For the reasons explained above, those “entitlements” all depend upon how the IAA exercises its discretionary powers under that provision. Nothing we have said above is intended to indicate that there is no scope for the bias limb of procedural fairness to apply in an appropriate case. Moreover, there may be scope for a judicial review challenge to an adverse decision by the IAA where the IAA has had regard to an invalid s 473GB certificate/notification and related information if the referred applicant somehow becomes aware of this fact.

101    For these reasons, ground 2 of the notice of contention is rejected.

(c) Ground 3 of the notice of contention

102    We are unpersuaded by the Minister’s contentions that in BVZ16 White J misconstrued or misapplied the term “exceptional circumstances” under s 473DD. We respectfully agree with his Honour’s reasons for concluding that the IAA in that case adopted an inappropriately narrow understanding of that phrase. In particular, we agree with his Honour’s findings and reasons that the requirements of subparas (a) and (b) of s 437DD are cumulative but may nevertheless overlap to some extent, with the effect that the IAA’s consideration of either or both of the limbs in subpara (b) may inform the IAA’s satisfaction under subpara (a) as to whether there are exceptional circumstances to justify considering the new information.

103    That is not to say, however, that the matters in subparas (b)(i) and (ii) are the only matters to be considered by the IAA in determining whether it is satisfied that there are exceptional circumstances to justify considering any new information.

104    As White J explained, the phrase “exceptional circumstances” is to be given a broad meaning, along the lines of circumstances which are unusual or out of the ordinary. This necessarily requires that consideration be given to all the relevant circumstances in determining whether or there are “exceptional circumstances” (see the authorities cited by his Honour at [39]-[41] of BVZ16).

105    For the reasons given by his Honour, including his references to relevant extrinsic material, we respectfully agree that subparagraphs (b)(i) and (ii) should be understood as referring to different kinds of new information. The former provision requires a factual inquiry as to whether or not the new information could have been presented to the Minister. The latter provision requires an evaluation of the significance of the new information in the context of the referred applicant’s claims more generally.

106    We also respectfully agree with White J’s conclusion and reasons for rejecting the Minister’s claim in support of his notice of contention in BVZ16 that, on the proper construction of s 473DD(b)(ii), the phrase “which was not previously known” should be construed as meaning “not previously known to [the referred applicant]”. The provision applies to new information which is given to the IAA by a referred applicant which, if it had been known by either the Minister or the referred applicant, may have affected the consideration of the referred applicant’s claims for protection. This is made clear by [29] of the Supplementary Explanatory Memorandum to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 which, in addressing revised paragraph 473DD of the Bill said (emphasis added):

This new provision will extend the types of “new information” that a referred applicant may present to the IAA to include, for example, evidence of significant torture and trauma which, if it had been known by either the Minister or the referred applicant, may have affected consideration of the referred applicant’s asylum claims by the Minister.

107    Paragraph 9 of the IAA’s reasons for decision is directed to that part of the submission dated 23 March 2016 (and the material which accompanied it), which raised the first respondent’s claims that, as an Arab, he joined AFLA when he was 18 years old and cannot return to Iran because of his political involvement with that organisation, as well as to his participation in rallies against the Iranian government in Australia. The material also included information concerning the first respondent’s participation in a football team and that team’s support for the independence of the Province of Ahwazi. These claims had not previously been raised by the first respondent.

108    As noted above, the submission was accompanied inter alia by a statutory declaration from the first respondent. Significantly, it contained an explanation as to why the first respondent had not previously disclosed his membership of, and activities for, AFLA. He explained that members of AFLA usually never reveal their details to others for security reasons and it was for that reason that he never revealed his membership of AFLA to anybody. He said that if any “information leaks out, it could be detrimental and fatal to us and our families in Iran”. Later in the statutory declaration, the first respondent stated that he was shocked when his visa protection application was rejected and that: “The AFLA advised me to notify the Department of Immigration about my affiliation with the AFLA movement. I therefore notify the Department of my affiliation with the AFLA”. Plainly, therefore, the first respondent was offering an explanation as to why he had not previously disclosed to the Department his affiliation with AFLA.

109    The supporting material to the submission also included a translated letter which purported to be from AFLA. The undated letter gave a Netherlands address. The letter was addressed to the Department. It confirmed the first respondent’s membership of AFLA and his “clandestine activities inside Alahwaz”. It also contained the following statement (without alteration):

It is also very important to inform you that when [the first respondent] joined our Front, he took a vow not to divulge any secret of our Front to any one; for this reason he did not mentioned his clandestine activity to the Australian authority. However, after we were told that he did not reveal his clandestine activity, the Front ordered him to narrate the full truth to the Australian authority including all the details of his clandestine activities in Alahwaz and the severe persecution he and his family encountered in Alahwaz.

110    This material could well constitute “credible personal information” which was not previously known to the IAA and may have affected the consideration of the first respondent’s claims. Yet there is no indication in the IAA’s reasons that it turned its mind to this material in concluding that there were no exceptional circumstances for the purposes of s 473DD.

111    Fairly read (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259), we consider that the IAA’s conclusion that it was not satisfied that there were exceptional circumstances to justify considering this new information was based on the IAA’s finding that the first respondent had not provided any explanation as to why the information could not have been provided earlier. All the matters which are set out earlier in [9] (and also in [8]) provide the foundation for that conclusion. Thus the IAA described the numerous opportunities which the first respondent had earlier in the process to provide the information, his knowledge about the limitations of providing new information and the fact that he had not previously raised any of the new information notwithstanding that it related to events which occurred prior to the delegate’s decision on 17 February 2016. In addition, it is notable that the IAA made no reference at all to the material which explained why the first respondent had not previously disclosed his affiliation with AFLA, notwithstanding that this was a relevant matter to be taken into account in assessing whether there were exceptional circumstances for the purposes of s 473DD.

112    For these reasons, we consider that the IAA made a similar error to that which was identified in BVZ16. Instead of addressing other matters which were potentially relevant to the issue of “exceptional circumstances”, including the first respondent’s explanation as to why he had not previously disclosed his affiliation with AFLA, the IAA reasoned that, because the referred applicant had not provided any explanation as to why the new information could not have been provided earlier, the IAA was not satisfied that there were exceptional circumstances. That reflects a misconstruction and misapplication of s 473DD.

113    There may also be an additional and related error in that the IAA’s reasons reveal an evident failure to take into account material provided by the first respondent which formed an important part of his explanation as to why he had not previously disclosed his affiliation with AFLA. This apparent omission, if established, would likely involve jurisdictional error because of a constructive failure by the IAA to exercise jurisdiction, as identified in Craig v South Australia [1995] HCA 58; 184 CLR 163 at [14].

114    The possible error emerges from the following analysis. There is a reference in [8] of the IAA’s reasons for decision to a submission having been made that AFLA had advised the first respondent to notify the Department of his affiliation with AFLA. This is a reference to the migration agent’s letter dated 23 March 2016 to the IAA. Later in the same paragraph of the IAA’s reasons for decision (i.e. [8]), it is stated that, to support his claims, the first respondent had provided a letter of support from AFLA in the Netherlands. The IAA said that the letter stated that the first respondent is an Ahwazi citizen and a member of AFLA. That description of the letter makes no reference to that part of the letter which confirmed the first respondent’s evidence in his statutory declaration (a claim to similar effect was made in the migration agent’s submission) as to why he had not previously told the Department of his affiliation with AFLA (see [108] above, which was also mentioned in his migration agent’s submission). The AFLA letter, if authentic, supported the first respondent’s explanation for the delay in raising his affiliation with AFLA but the IAA did not directly address that potentially important matter. This may involve jurisdictional error. It is unnecessary and perhaps inappropriate, however, to express a definitive conclusion on that matter, particularly in circumstances where it was not raised by either party.

115    For these reasons, this part of the notice of contention should be upheld. The referred review should be remitted to the IAA, which will need to determine, on a proper understanding of the meaning and scope of s 473DD, whether it should consider any of the new information which was provided to it. That is a matter for the IAA to consider and determine, not this Court.

116    For completeness, it might be noted that there was other new information provided by the first respondent to the IAA which the IAA refused to consider for reasons which are set out in [11] and [12] of its reasons for decision. This other new information, which included a letter of support from the President of the Sabean-Mandaean Association in Australia, a video and various country information, was not considered by the IAA and is not included in ground 3 of the notice of contention.

Conclusion

117    For these reasons, the appeal should be allowed and the notice of contention upheld in part. The parties should, within 14 days hereof, seek to agree orders, including as to costs, which give effect to these reasons. If they are unable to do so, they should within that time each file and serve a brief written submission, not exceeding five pages in length, setting out the orders for which they contend and reasons in support. Finalisation of orders will then be made on the papers and without a further oral hearing.

Associate:

Dated:    10 November 2017