FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Border Protection v EEI17 [2018] FCAFC 166

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is allowed.

2.    The orders dated 9 March 2018 in proceeding SYG2931/2017 in the Federal Circuit Court of Australia be set aside.

3.    In lieu of the orders referred to in Order 2 above, the application to review the decision of the second respondent dated 22 August 2017 be dismissed.

4.    The first respondent pay the appellant’s costs of this appeal and in the Court below.

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

REASONS FOR JUDGMENT

THE COURT:

1.    INTRODUCTION

1    The Minister for Immigration and Border Protection (Minister) appeals from a decision and orders of the Federal Circuit Court of Australia (FCCA) quashing a decision of the Immigration Assessment Authority (IAA). The grounds of appeal raise the question of the correct approach of the IAA to the reasons provided by the delegate of the Minister. Most particularly, they concern the manner in which the IAA considered the reasons given by the delegate insofar as they concern the claimed ethnicity of the first respondent (hereinafter referred to as the respondent).

2.    BACKGROUND

2    The respondent arrived in Australia from Iraq in March 2013 and on 30 December 2016 lodged an application for a protection visa subclass XE-790 Safe Haven Enterprise Visa (SHEV) pursuant to s 65 of the Migration Act 1958 (Cth) (Act). His application was considered by a delegate of the Minister on 4 July 2017. The delegate refused the respondent’s application on the basis that she was not satisfied that the respondent was owed protection obligations pursuant to s 36 of the Act.

3    On 22 August 2017, the IAA determined that the decision of the delegate should be affirmed. The respondent then filed an application for review in the FCCA. After hearing the application, the primary judge decided that the decision of the IAA should be quashed.

4    The Minister has filed a Notice of Appeal in this Court, advancing the following grounds:

(1)    The primary judge erred in holding (at J[22]) that it was not open to the IAA when reviewing a fast track reviewable decision simply to decide for itself the respondent’s claims by reference to the material the respondent placed before the delegate without also considering the delegate’s findings, evidence upon which those were made, and the delegate’s reasons. At the hearing, the Minister orally amended this ground to clarify that he disputed the primary judge’s construction of the term “considering” and thus the extent to which the delegate’s findings needed to be considered by the IAA and referred to in its written decision.

(2)    The primary judge erred in finding (at J [50] – [52]) that the IAA fell into jurisdictional error in its review, under s 473DB(1) of the Act, of the delegate’s decision, by failing to consider the delegate’s findings and evidence upon which those findings were based in circumstances where the primary judge:

(a)    held (at J[44]) that a claim based on the respondent’s being a “Bidoon”, which had not been made by the [respondent], did not arise squarely on the material before the IAA;

(b)    further and alternatively, should have held that the delegate’s references to “Bidoon” were in the nature of a typographical, or similar, errors.

5    The Minister was represented at the appeal by Mr Hamish Bevan, of Counsel. The respondent was represented by Mr Victor Kline, of Counsel. Both filed written submissions in advance of the hearing.

3.    THE DECISION OF THE DELEGATE

6    The delegate records that the respondent’s claims for protection were based; first, on fears arising from the kidnap of his brothers K and M in 2011, and fears that if the respondent returns to Iraq he will also be kidnapped and killed; secondly, a claim that his brother A returned to Iraq in 2017 and was killed as a result of making enquiries relating to the whereabouts of K and M; thirdly, claims of being a person of Arab/Bedouin mixed ethnicity; fourthly, a claim to be a Shia Muslim; fifthly, that ISIS and other Sunni militias will persecute him because he is a Shia Muslim; sixthly, that he has an imputed political opinion (that he does not support the sectarian agenda and violent practices of ISF and Shia Militias); and finally, that he will face persecution as a failed asylum seeker and on account of his perceived Western opinions.

7    In her statement of reasons, the delegate makes a number of observations about the identity of the respondent. She notes that his country of citizenship is Iraq and refers to his passport and Iraqi identity card, which were issued respectively in June 2012 and January 2013. Under the heading “Ethnicity – Arab/Bedouin” she says:

The [respondent] has not raised any specific claims regarding his mixed ethnicity. In the absence of any evidence to the contrary, I accept the [respondent’s] mother is a Bidoon. I find that the [respondent] is an Iraqi citizen and has not had any issues because of his mother’s ethnicity as a Bidoon.

8    It will be seen later that the references in this section to “Bidoon” did not arise from any claim made by the respondent, or from the evidence before the delegate. It is this anomaly that lies at the centre of the present appeal. It appears in two further parts of the delegate’s reasons.

9    Under the heading “Failed Asylum Seeker/Returnee from the West” the delegate rejects the respondent’s claim that he will be targeted by unknown persons responsible for the deaths of his brothers and states that she accepts that the respondent is an Iraqi citizen “of Arab/Bidoon ethnicity”. She rejects the respondent’s claim that his brothers K and M were kidnapped because of their race, religion, nationality, membership of a particular social group or political opinion and that his brother A was killed because he made enquiries regarding the kidnapping of his brothers K and M.

10    In a section entitled “Refugee criteria assessment – s 36(2)(a) of the Act” the delegate uses the heading “Ethnicity – Arab/Bidoon” and says:

The [respondent] stated that his mother is of Bidoon ethnicity however did not raise any specific issues regarding his ethnicity. Nevertheless, from the information provided, it does not appear his mother was an undocumented Bidoon. DFAT assesses that Bidoons face low levels of official and societal discrimination.

…

There is no information before me to indicate that the [respondent] has been persecuted because of his Arab/Bidoon ethnicity.

11    The delegate’s reference to “DFAT” in the final sentence of the first paragraph quoted above is a reference to a Department of Foreign Affairs and Trade (DFAT) Country Information Report on Iraq dated 26 June 2017, which was before both the delegate and the IAA.

12    Relevantly, that report states the following:

Bedouin

3.3    Bedouins are concentrated in the south and west. Bedouins have traditionally been nomadic and involved in camel and livestock herding. Many have now settled in urban and rural areas. They often live scattered in illegal buildings and settlements or within IDP communities where they are tolerated by local officials. Given the large number of IDPs in Iraq, it is difficult to obtain reliable information on the treatment of individual Bedouins, including the potential for discrimination and violence. DFAT is not aware of any specific incidents of mistreatment of Bedouins on the basis of their ethnicity by the Government or wider community, although understands that the Government has done little to improve access to services in Bedouin communities.

3.4    The situation for stateless Bedouin who may also be described as Bidoons (an Arabic word meaning ‘without’) is more complex. Many Bedouin are stateless and do not hold the identification documentation necessary to guarantee freedom of movement and access to services such as healthcare and education. This is exacerbated by divergent practices amongst local authorities along with practical and cultural obstacles. Stateless Bedouins have disproportionately high rates of illiteracy, poverty and unemployment and can face eviction as they often do not own the land on which they settle.

3.5    Overall, DFAT assesses that Bedouins face low levels of official and societal discrimination. Stateless Bedouins face high levels of official discrimination.

…

Bidoon

3.57     The Bidoon are a group of often stateless persons in the Gulf region, primarily Kuwait, including those unable to gain citizenship at the time of Kuwait’s independence due to a lack of documentation, as well as those who renounced their citizenship to move to Kuwait (from countries such as Iraq). There is little verifiable information available on the status of Bidoon in Iraq. During the Gulf War a number of Bidoon fled (or were deported) to Iraq and subsequently faced difficulties re-entering Kuwait. Kuwait considered those who fled to Iraq as supporters of the Ba’ath Party regime and therefore not loyal to Kuwait. An estimated 100,000 Bidoon entered Iraq during this period. The majority are Sunni, with a small minority being Shia. More than 80 per cent are reported to live in the south, although some have moved to the north.

3.58    Approximately 47,000 Bidoon were granted Iraqi nationality by the Ba’ath Party regime through an assistance package called ‘makremiayah’. To obtain citizenship, Bidoon had to declare that Kuwait was not their place of birth (that is, they had to renounce association with Kuwait) and often needed sponsorship from a local tribal group. After 2003, Bidoon were no longer able to claim citizenship through ‘makremiayah’. Bidoon who were unable or unwilling go through ‘makremiayah’ remain stateless. In-country contacts report that approximately 54,000 Bidoon remain stateless. A stateless person has to prove that he or she was registered during the 1957 Census in order to gain citizenship. Local authorities reportedly maintain a certain degree of flexibility for Bidoons with regards to this requirement. Bidoons can access Iraqi nationality through their affiliation with some tribal groups, provided they do not declare ‘Kuwait’ as their place of birth. Bidoon may face difficulty in obtaining Iraqi nationality documentation due to a combination of not being registered or not being able to meet the supporting documentation requirements. Stateless Bidoon do not have access to many services and public sector job opportunities, nor can they register land in their own names, sign rental contracts or inherit. Births and deaths of stateless Bidoons are not normally registered by Iraqi officials.

3.58    DFAT assesses that stateless Bidoon are subject to a moderate level of official discrimination. DFAT has no evidence of targeted violence against Bidoon communities.

13    The delegate then proceeds to consider the refugee criteria assessment in relation to the respondent’s Shia religion, the security situation in southern Iraq, and the respondent’s position as a failed asylum seeker returning from the West. She concludes that he is not a refugee as defined by s 5H(1) of the Act, and that he does not satisfy the complementary protection criteria under s 36(2)(aa) of the Act.

4.    THE DECISION OF THE IAA

14    The decision of the IAA commences with an observation that the respondent claims to be a Shia of mixed Arab and Bedouin ethnicity from Iraq. It records the respondent’s claims for protection, which broadly correspond to the claims identified by the delegate (except that the delegate also identifies the respondent’s Arab/Bedouin mixed ethnicity as a claim), and refers to the respondent’s nationality and ethnicity.

15    In relation to nationality, the IAA accepts that the respondent’s name is as he claimed and that he is a national of Iraq. It also accepts that he was born and lived for the first few years of his life in one town but resided in a different city for most of his life located in the Dhi Qar governorate.

16    In relation to his ethnicity, the IAA states as follows:

[10]     The [respondent] claimed he is a Shia of mixed Arab and Bedouin ethnicity as his father is Arab and his mother is Bedouin.

[11]     The Australian Department of Foreign Affairs and Trade (DFAT) reports that Bedouins are concentrated in the south and west of Iraq. DFAT are not aware of any specific incidents of mistreatment of Bedouins on the basis of their ethnicity by the Government or wider community. DFAT note the situation for stateless Bedouin who may also be described as Bidoons (an Arabic word meaning “without”) is more complex as they are stateless and do not hold the identification documentation necessary to guarantee freedom of movement and access to services such as healthcare and education (footnoted reference to DFAT, Country Information Report – Iraq, 26 June 2017, CISEDB50AD4631, paragraphs 3.3 – 3.5).

17    The IAA then makes the following relevant finding:

[12]     I accept the [respondent] is a Shi Muslim of mixed Arab/Bedouin ethnicity as claimed. However, I note the [respondent’s] consistent evidence that both his parents are Iraqi citizens; that he holds identification documents; and has received six years of primary and several years of middle school education. I also note the [respondent] has not claimed that he personally feared any harm as a result of his mixed Arab/Bedouin ethnicity.

18    The IAA then proceeds to consider and dismiss each of the respondent’s claims.

5.    THE DECISION OF THE FCCA

5.1    The grounds of review before the primary judge

19    The respondent was represented by a solicitor before the learned primary judge. He relied on three grounds of review; (1) that the IAA ignored or failed to give sufficient weight to relevant material; (2) that he was denied procedural fairness by the IAA’s failure to review relevant material; and (3) that the IAA failed to comply with its statutory obligation under s 473CC of the Act to review the “fast track reviewable decision” of a delegate by failing to address an issue clearly arising from the material before it.

20    The particulars filed in support of each of these grounds begin with a number of factual assertions and then address asserted failures on the part of the IAA as follows:

1.    The [respondent] is ethnically Bedoon, has a Bedoon family background and is from Iraq.

2.     A Bedoon is a stateless person from Kuwait (the word “Bedoon in Arabic literally means “without nationality” or “without citizenship”), who may or may not have been granted nationality of a third party accepting state (in this case, Iraq). The [respondent’s] mother is a Bedoon.

3.     A Bedouin is a nomad.

4.     A person can be a Bedoon and a Bedouin.

5.    The [IAA] failed to consider the [respondent’s] Bedoon ethnicity and family background in its review of the [respondent’s] refusal protection visa application (procedural fairness)

6.    The [respondent’s] Bedoon ethnicity and family background are important integers of the [respondent’s] protection visa application

7.     The failure: to consider the [respondent’s] Bedoon ethnicity and family background, or to give sufficient weight to the same; and, in all the circumstances, to review relevant material relating to the same amount to jurisdictional error.

8.     The [IAA] failed to consider or make any findings as to the decision of a delegate of the [Minister] that the [respondent] was ethnically a Bidoon and his mother was a Bidoon. The [respondent’s] Bidoon ethnicity and mother’s ethnicity clearly arose on the face of the fast track reviewable decision.

9.     In failing to consider or make any findings as to the above, the [IAA] failed to comply with the requirements of s 473CC of the Migration Act 1958.

5.2    The decision

21    In thorough and carefully expressed reasons, the learned primary judge identifies the principal issue as being whether the IAA failed properly to consider whether the respondent was a Bidoon ([1]) (noting, as we do here, that “Bidoon” and “Bedoon” (in contrast to “Bedouin”) are interchangeable spellings. We use the former here).

22    The primary judge notes that in a statement that accompanied his SHEV application the respondent states that he is a citizen of Iraq, that his mother is “Bedouin” and his father is Arabic. He also notes that the respondent’s statement includes the following passages; “Poor people and Bedouins such as ourselves were targeted because we lacked connections to people with power…” and “The authorities have denied us any protection because we are poor, Bedouin, and victims of a human rights abuse…”.

23    After carefully reviewing the legislation and some authorities concerning the nature of a review required to be undertaken by the IAA, the primary judge expresses his conclusions as to the nature of the task of the IAA in conducting a review pursuant to Part 7AA of the Act:

[21]     …the task of the [IAA] is to consider the merits of an applicant’s application for a SHEV by considering the “review material”. That requires the [IAA] “to view or contemplate attentively ... examine ... scrutinise ... to fix the mind upon ... to reflect upon” the review material, and determine whether, on the basis of its consideration of the review material, the delegate’s decision should be affirmed or remitted for reconsideration according to directions or recommendations the [IAA] is permitted to make under reg.4.43 of the Regulations…

[22]     One of the materials the [IAA] must consider is the delegate’s statement that sets out the delegate’s findings of fact, which refers to the evidence on which those findings are based, and which gives reasons for their decision. In these circumstances it is not open to the [IAA] when reviewing a fast track decision simply to decide for itself the applicant’s claims by reference to the material the applicant placed before the delegate without also considering the delegate’s findings, the evidence on which the delegate relied for those findings, and the delegate’s reasons. The [IAA] is of course not required to consider whether the delegate made an error; the [IAA] is required to reach its own view about the merits of an applicant’s claims. But in determining for itself the merits of an applicant’s claims, the [IAA] must consider the matters contained in the delegate’s statement as well as the other material that is comprised in the “review material” that is referred to it under s.473CB of the Act.

(citations omitted, emphasis added)

24    The primary judge summarises the grounds advanced before him, when understood in the light of the submissions made on behalf of the respondent, as involving a failure on the part of the IAA to consider three matters; first, the delegate’s incorrect reliance on a 2015 DFAT report; secondly, a claim made by the respondent that he is a Bidoon; and thirdly, the delegate’s findings that the respondent’s mother is a Bidoon and that he has not had any issues because of his mother’s Bidoon ethnicity and that DFAT assessed Bidoons as facing low levels of official discrimination.

25    The primary judge rejects the first two of these contentions, finding that the delegate referred to the correct (2017) DFAT report and that there was no claim advanced based on the respondent being of Bidoon ethnicity. Neither of these findings is challenged in the current appeal.

26    However, the primary judge did find that the IAA erred by failing to consider the findings that the delegate made in relation to the respondent’s Bidoon ethnicity. The learned primary judge said:

[49]    …As I have already noted, the delegate referred to the [respondent] having stated that his mother was a Bidoon and seemingly not an undocumented Bidoon; but the [IAA] did not refer to the delegate’s having made these findings, or the evidence and reasons on which the delegate relied for making these findings.

[50]     In my opinion, the [IAA] did not consider the delegate’s decision as it was required to do by s.473DB of the Act. In particular, the [IAA] did not consider the delegate’s findings of fact that the [respondent’s] mother was a Bidoon and seemingly not an undocumented Bidoon, and that Bidoons face low levels of official and societal discrimination. And although the [IAA] referred to the Report, being evidence on which the delegate relied for her findings, the [IAA] did not refer to the Report in the context of considering the evidence on which the delegate relied for making her findings. Had the [IAA] considered the delegate’s findings, and the evidence on which the delegate relied for those findings – that is, had the [IAA] viewed or contemplated attentively, or examined, scrutinised, or fixed its mind upon, or reflected upon the delegate’s findings and the evidence on which the delegate relied – the [IAA] would have in some way manifested that activity in its reasons. More particularly, had the [IAA] considered the delegate’s findings, it is reasonable to expect the [IAA] would have referred to the fact that the delegate assessed the [respondent] as being a Bidoon whereas in his statement the [respondent] claimed he was a Bedouin, and explained why the [IAA] considered that the [respondent] was to be assessed as a Bedouin rather than a Bidoon.

[51]     It appears the [IAA] approached its tasks simply by considering for itself the material that was before the delegate without considering any of the delegate’s findings or the evidence on which the delegate relied. There is no question the [IAA] was not only entitled, but bound to consider the material that was before the delegate with a view to determining for itself whether on the basis of that material the delegate’s decision should be affirmed or remitted for consideration; and there is no question that when undertaking that task the [IAA] was not required to consider whether the delegate made any error or otherwise made a decision that it was not the preferable decision to make. The [IAA’s] tasks, however, were not limited to considering the material that was before the delegate; its tasks extended to considering the delegate’s statement of reasons, and in particular the delegate’s findings of fact the delegate made, and the evidence and reasons on which the delegate relied for making those findings.

(emphasis added)

6.    THE STATUTORY SCHEME

27    The statutory regime under Part 7AA of the Act is designed to provide a limited form of review for decisions such as that made by the delegate in the present case; s 473BA.

28    Section 473CC provides:

(1)      The Immigration Assessment Authority must review a fast track reviewable decision referred to the Authority under section 473CA.

(2)    The Immigration Assessment Authority may:

(a)      affirm the fast track reviewable decision; or

(b)      remit the decision for reconsideration in accordance with such directions or recommendations of the Authority as are permitted by regulation.

29    Section 473DB is entitled “Immigration Review Authority to review the decision on the papers”. It provides:

(1)      Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB:

(a)      without accepting or requesting new information; and

(b)      without interviewing the referred applicant.

(2)      Subject to this Part, the Immigration Assessment Authority may make a decision on a fast track reviewable decision at any time after the decision has been referred to the Authority.

30    Section 473CB(1) identifies the information that the Secretary must give to the IAA in respect to a fast track reviewable decision referred to the IAA being:

(a)    a statement that:

(i)      sets out the findings of fact made by the person who made the decision; and

(ii)      refers to the evidence on which those findings were based; and

(iii)      gives the reasons for the decision;

(b)      material provided by the referred applicant to the person making the decision before the decision was made;

(c)      any other material that is in the Secretary's possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review;

(d)    the following details:

(i)     the last address for service provided to the Minister by the referred applicant for the purposes of receiving documents;

(ii)     the last residential or business address provided to the Minister by the referred applicant for the purposes of receiving documents;

(iii)     the last fax number, email address or other electronic address provided to the Minister by the referred applicant for the purposes of receiving documents;

(iv)     if an address or fax number mentioned in subparagraph (i), (ii) or (iii) has not been provided to the Minister by the referred applicant, or if the Minister reasonably believes that the last such address or number provided to the Minister is no longer correct—such an address or number (if any) that the Minister reasonably believes to be correct at the time the decision is referred to the Authority;

(v)     if the referred applicant is a minor—the last address or fax number of a kind mentioned in subparagraph (i), (ii), (iii) or (iv) (if any) for a carer of the minor.

31    Section 473DC provides:

Getting new information

(1)      Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:

(a)      were not before the Minister when the Minister made the decision under section 65; and

(b)      the Authority considers may be relevant.

(2)    The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.

(3)      Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:

(a)      in writing; or

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

32    Section 473EA addresses the form of the IAA’s decision:

Written statement of decision

(1)      If the Immigration Assessment Authority makes a decision on a review under this Part, the Authority must make a written statement that:

(a)      sets out the decision of the Authority on the review; and

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

(c)      records the day and time the statement is made…

33    In Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 353 ALR 600 (M174/2016), the majority (Gageler, Keane, Nettle JJ) described the function of the IAA in the context of the statutory regime:

[16]     Section 473CC(1) provides in that context that the [IAA] “must review a fast track reviewable decision referred to the [IAA] under section 473CA”. Section 473CC(2) goes on to provide that the [IAA] may either “affirm the fast track reviewable decision” under s 473CC(2)(a) or “remit the decision for reconsideration in accordance with such directions or recommendations of the [IAA] as are permitted by regulation” under s 473CC(2)(b).

[17]    Notwithstanding the inability of the [IAA] to set aside a fast track reviewable decision and to substitute its own decision, the [IAA] when conducting a review of a fast track reviewable decision is not concerned with the correction of error on the part of the Minister or delegate but is engaged in a de novo consideration of the merits of the decision that has been referred to it. The task of the [IAA] under s 473CC(1) is to consider the application for a protection visa afresh and to determine for itself whether or not it is satisfied that the criteria for the grant of the visa have been met. The powers conferred on the [IAA] by s 473CC(2) then enable the [IAA] to make orders appropriate to give effect to the outcome of its own determination of the merits. If the [IAA] is not satisfied that the criteria for the grant of the visa have been met, the appropriate order for the [IAA] to make is to affirm the decision under review. If the [IAA] is so satisfied, and the [IAA] has found no other statutory impediment to the grant of the visa, the appropriate order for the [IAA] to make is to remit the decision for reconsideration by the Minister in accordance with such permissible directions or recommendations as the [IAA] considers are appropriate to give effect to the [IAA]'s determination.

    (footnotes omitted)

See, to similar effect Gordon J at [85], Edelman J at [95].

34    These statements leave no room for doubt as to the nature of the decision of the IAA. The obligation of the IAA is to consider the materials and provide its decision as to whether or not the visa applicant is entitled to the grant of a visa. The IAA is not concerned with the correction of error on the part of the delegate but is engaged in a de novo consideration of the merits of the decision that has been referred to it. The task of the IAA under s 473CC(1) of the Act is to consider the application for a protection visa afresh. This was not a matter of dispute between the parties.

7.    CONSIDERATION

7.1    The submissions

35    The Minister contends that the primary judge wrongly imposed on the IAA a higher threshold or burden as to what it must do in order to discharge its obligations of review than is warranted by the legislative scheme and authorities applying it. He submits that the primary judge erred by finding that the IAA was required to actively engage with what the delegate had said about the claims extends beyond the review task, in circumstances where the obligation of the IAA is not to correct error on the part of the delegate but to consider the claims made by the visa applicant afresh as a hearing de novo, citing M174/2016.

36    In oral submissions in support of the appeal, Mr Bevan placed most emphasis on ground 2 of the appeal. Ground 2 draws attention to the primary judge’s reasoning at [50] – [52], which emphasises a requirement on the part of the IAA to consider and refer to the delegate’s incorrect findings that the respondent was of Arab/Bidoon ethnicity, rather than Arab/Bedouin ethnicity, and the evidence concerning the respondent’s ethnicity. The Minister submits that the primary judge effectively held that the IAA had properly considered all of the claims advanced on behalf of the respondent, and yet he required the IAA to go further and explain an apparent inconsistency or anomaly in the delegate’s reasons. The Minister submits that there is no obligation on the part of the IAA to set out in its reasons an analysis of the delegate’s decision. Furthermore, the Minister contends that the primary judge’s conclusion ignores parts of the IAA’s reasons where it makes clear that it had regard to the “review material”. In this regard the Minister refers to the IAA decision at [3], where it states explicitly that it has had regard to the material given by the Secretary under s 473CB of the Act, and other parts of the IAA reasons where it is apparent that the IAA did have regard to the decision of the delegate. Having done so, and determined the merits of the respondent’s claims, the Minister submits there was nothing that the IAA omitted to do.

37    The respondent submits that the fast track review process under Part 7AA of the Act is fundamentally different to Part 7 of the Act. In the latter, the Administrative Appeals Tribunal (Tribunal), upon review, may exercise all of the powers of the original decision maker and substitute a new decision; s 415 of the Act. Furthermore, the Tribunal may invite the applicant to appear before it. In the case of the IAA, subject to the provisions of Part 7AA concerning “new information”, it is limited to reviewing the decision of the delegate on the materials sent to it by the Secretary which are confined to two species of information; the delegate’s decision; and the material provided by the applicant to the delegate for the purpose of making that decision. The IAA is limited in its role to affirming the original decision or remitting the matter back to the original decision maker for reconsideration. The respondent submits that given these limitations, it is difficult to conceive of the IAA being able to affirm the original decision or, on remittal, to afford any benefit to the original decision maker in its reconsideration, without the IAA having relevantly addressed the delegate’s decision.

38    The respondent submits that under Part 7AA of the Act, the fundamental right to adduce new evidence and the right to be heard have been “taken away”, and all that is left is the review of the decision of the delegate and the materials on which the decision was made. He submits that “it cannot be correct to say that the IAA can proceed to only consider one of those sets, and ignore the other”. Section 473DB of the Act requires that the IAA must review a fast track reviewable decision by considering the review material. Accordingly, the respondent submits that the Act itself makes it mandatory for the IAA to consider the delegate’s reasons. Thus, in the present case, the IAA did not properly and relevantly address the delegate’s decision, as the primary judge correctly found.

7.2    Consideration of ground 2 of the appeal

39    It is convenient to address ground 2 of the appeal before ground 1.

40    The factual setting for this ground is not in dispute. As we have noted, the delegate made findings; that the respondent had stated that his mother is of Bidoon ethnicity; that the respondent did not raise any specific issues regarding his ethnicity; and that from the information provided it does not appear the respondent’s mother was an undocumented Bidoon. The delegate also records that DFAT assesses that Bidoons face low levels of official and societal discrimination.

41    The reference to the respondent’s mother as being of Bidoon ethnicity did not arise from a claim made before the delegate, either by the respondent or otherwise. In no evidence put before the delegate did the respondent suggest that his mother was of Bidoon ethnicity. To the contrary, he consistently maintained that he was of mixed Arab/Bedouin race. However, whilst the delegate recorded that the respondent’s mother was a Bidoon and incorrectly stated that DFAT assesses that “Bidoons” (rather than Bedouins) face low levels of official and societal discrimination, it is the case that the DFAT report stated that a documented Bedouin (which, as a Bedouin Iraqi citizen, the respondent is here) would face low levels of official and societal discrimination.

42    The IAA statement of reasons records that it has “had regard to the material given by the Secretary under s 473CB of the [Act]”. As noted above, that material includes the statement required under s 473CB(1)(a), being the delegate’s decision; and the material set out in s 473CB(1)(b), being the material provided by the respondent to the delegate. Furthermore, it is apparent from the reasons of the IAA that it did indeed have regard to these materials.

43    The present dispute does not lie at the level of whether the IAA was provided the material pursuant to s 473CB, but whether the IAA’s regard to it required reflection in its reasons. The primary judge identified the anomalies in the delegate’s reasons to be the “Relevant Findings”. These were; that the respondent did not in his application raise any specific issues regarding his ethnicity; the respondent’s mother did not appear on the materials to be an undocumented Bidoon; DFAT assessed that Bidoon face low levels of official and societal discrimination; and there was no information before the delegate to indicate that the respondent has been persecuted because of his Arab/Bidoon ethnicity.

44    It was in the context of these findings by the delegate that the primary judge concluded at [50] that the IAA had failed to “consider” the delegate’s decision as it was required to do under s 473DB of the Act. The balance of [50] reveals that the primary judge was criticising the IAA for failing in its reasons to identify the delegate’s anomalous findings of fact. The gravamen of the primary judge’s criticism was that the IAA failed to set out in its reasons an analysis of the factual errors in the delegate’s findings. However, we do not consider that the statutory scheme is such that the IAA had an obligation to do so.

45    First, the anomalies were irrelevant to the consideration by the IAA of the respondent’s application as a hearing de novo. Section 473DB of the Act identifies that the IAA must review a fast track reviewable decision referred to it under s 473CA of the Act by considering the review material provided to it under s 473CB of the Act. The “review” required under s 473DB requires the IAA to conduct a merits review of the decision of the delegate. The IAA is not concerned with the correction of error on the part of the delegate but is engaged in a de novo consideration of the merits of the decision that has been referred to it. The task of the IAA under s 473CC(1) is to consider the application for a protection visa afresh; Plaintiff M174/2016 at [17], [85] and [100].

46    Secondly, the IAA was required to consider the review materials as defined insofar as those materials were relevant to the review that it conducted. The “review material” is identified in s 473CB(1) of the Act. It includes the delegate’s decision and other materials provided to the delegate; other material that is in the Secretary’s possession considered by the Secretary to be relevant to the review; and the personal details such as the address for service and email address of the visa applicant.

47    Thirdly, the obligation to provide reasons under s 473EA(1) of the Act does not extend to providing an analysis of matters that are not material to the de novo review that it is conducting. Section 473DB(1) makes plain that the IAA must review a fast track reviewable decision (here, the delegate’s decision) by “considering” the review material. However, there is a distinction to be drawn between considering material and the required contents of the statement of reasons of the IAA. Section 473EA(1) provides that if the IAA makes a decision on review, it must make a written statement that sets out the decision on the review and sets out the reasons for the decision and records the day and time the statement is made. The requirement for the reasons for the decision draws its content from the nature of the review being conducted. The IAA is not concerned with the correction of error on the part of the delegate but is engaged in a de novo consideration of the merits of the decision that has been referred to it. As we have noted, the task of the IAA under s 473CC(1) of the Act is to consider the application for a protection visa afresh.

48    In the present case the primary judge concluded, and there is no dispute on appeal, that the ethnicity of the respondent as a Bidoon (as opposed to a Bedouin) was not the subject of any claim for protection. There is no dispute that the IAA otherwise considered each of the claims as advanced by the respondent. In those circumstances the obligation on the part of the IAA to give reasons within s 473EA(1) of the Act did not extend to an obligation to accept, reject or otherwise comment upon the apparent anomalies within the delegate’s reasons concerning the respondent’s Bidoon ethnicity. Even under the more rigorous requirements imposed by s 430(1) of the Act, where the Tribunal is obliged not only to set out its reasons for the decision but also set out the findings on any material questions of fact and refer to evidence or other material on which findings of fact were based, the Tribunal is only obliged to set out what its findings were on the questions of fact that it considered material; Minister for Immigration v Yusef [2001] HCA 30; (2001) 206 CLR 323 at [69]. In the present case, the erroneous observations of the delegate were irrelevant to the live claims made by the respondent. Furthermore, the process of analysis of the delegate was in any event irrelevant to the consideration of the materials on the de novo review of his case.

49    In our respectful view, the error of the learned primary judge arose because he conflated the requirement under s 473DB(1) for the IAA to conduct a review by considering the review material, with the requirement under s 473EA(1)(b) to provide reasons for the decision. The obligation to give reasons is not commensurate with the obligation to consider the review material. Section 25D of the Acts Interpretation Act 1901 (Cth) applies to s 473EA of the Act; BVD17 v Minister for Immigration and Border Protection [2018] FCAFC 114 (per Flick, Markovic and Banks-Smith JJ) (BVD17) at [47]-[49]. The IAA is not required to do more than set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based. The fact that a matter is not mentioned in a statement of reasons does not mean that it was not considered; see Minister for Immigration v SZGUR [2011] HCA 1; (2011) 241 CLR 594 at [32], [32] (French CJ, Kiefel J, Heydon J and Crennan J agreeing); BVD17 at [45]; AQR17 v Minister for Immigration and Border Protection [2018] FCA 901 at [14]-[15].

50    Accordingly, we allow ground 2(a) of the appeal.

51    In ground 2(b), the Minister contends that the primary judge should, in the alternative, have held that the delegate’s references to “Bidoon” were in the nature of typographical or similar errors. We have noted above that for the purposes of the review conducted by the IAA in the present case, it was not necessary for the IAA to make specific reference to the “Bidoon” aspect of the reasons of the delegate. Accordingly, ground 2(b) is rejected.

7.3    Consideration of ground 1 of the appeal

52    In ground 1 the Minister contends that the primary judge erred in holding at [22] that it was not open to the IAA when reviewing a fast track reviewable decision simply to decide for itself the respondent’s claims by reference to the material the respondent placed before the delegate without also considering the delegate’s findings, evidence upon which those findings were made and the delegate’s reasons. During the course of argument, the Minister clarified that the challenge was the primary judge’s construction of the word “considering” as set out in [21] of the reasons, as requiring the IAA “to view or contemplate attentively… examine… scrutinise… to fix the mind upon… to reflect upon”. However, as the hearing progressed it became apparent that the real focus of the appeal was upon ground 2. In our view, the primary judge’s finding at [22] simply reflects the language of s 473DB when read with s 473CB. For that reason, this ground must fail.

8.    DISPOSITION

53    Accordingly, we order that:

(1)    The appeal is allowed.

(2)    The orders dated 9 March 2018 in proceeding SYG2931/2017 in the Federal Circuit Court of Australia be set aside.

(3)    In lieu of the orders referred to in Order 2 above, the application to review the decision of the second respondent dated 22 August 2017 be dismissed.

(4)    The first respondent pay the appellant’s costs of this appeal and in the Court below.

Associate:

Dated:    28 September 2018