FEDERAL COURT OF AUSTRALIA

BDY18 v Minister for Immigration and Border Protection [2020] FCAFC 24

ORDERS

THE COURT ORDERS THAT:

1.    Appeal allowed.

2.    The decision of the second respondent be set aside and the matter be remitted to the second respondent for determination according to law.

3.    The first respondent do pay the costs of the appeal to be assessed if not agreed.

4.    There be liberty to apply to vary the cost orders within 7 days.

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

REASONS FOR JUDGMENT

THE COURT:

1    The appellants are members of a family comprising father, mother and two children. Their applications for protection visas have been refused. When their applications were under consideration by a delegate of the Minister for Immigration and Border Protection, they were asked to produce documents to support the father's claim. The father says that by mistake the documents were sent to the wrong email address. The failure to produce the documents became an important part of the reasons why the appellant's applications were refused. When the decision was made by the delegate, the father realised his mistake.

2    The refusal of the visa application was reviewed by the Immigration Assessment Authority. The relevant documents were provided to the Authority but it was not satisfied that it could receive the documents on the review. The appellants claim that the documents should have been received by the Authority when it undertook its review of the case.

3    The present appeal concerns whether the Authority failed to properly perform its statutory task when it refused to receive the documents as part of the review. The claim made is that the decision by the Authority not to receive the documents was based upon factual findings that were made by a process of reasoning that was illogical and unreasonable. It is accepted by the Minister that if that claim is made out then there has been jurisdictional error and the matter should be sent back to the Authority for reconsideration.

4    The appellants need leave to make the claim because they did not raise it in the Federal Circuit Court.

5    Therefore, there are two issues for determination. First, should leave be given to raise the claim? Second, was the factual reasoning of the Authority to support its decision not to receive the documents legally unreasonable? As the merits have been fully argued and an understanding of the merits of the appeal ground is necessary to deal with the question of leave, it is convenient in this instance to deal with the second issue first.

The history of the appellants' claim to protection

6    The appellants came to Australia in 2013 from Iran. They arrived by boat from Indonesia. Their arrival was not authorised. They made application for protection visas. The father says that charges were brought against him by his employer in Iran because of his actions at work which reflected his religious beliefs. When he applied for a protection visa, he described the charges as relating to disrespecting the Ayatollah and encouraging religious disobedience. He says that he was bailed on those charges and he fled Iran with his family because of his fear that he would be imprisoned. He also claims to have been detained twice for his religious observance while in Iran. He says that he was convicted in his absence on the charges brought against him and sentenced to 15 years imprisonment. He claims that if he is sent back to Iran he will be immediately detained and probably tortured.

7    It was not until March 2017 that the appellants were told that the processing of their applications had commenced. Mandatory health check examinations were arranged for the family. An interview was then scheduled for 27 April 2017. There is no record of the interview in the material before the Court. However, it appears that in the course of the interview the father was asked to provide documents to support his claim that he had been charged and sentenced as he claimed. It is common ground that the documents did not reach the delegate before she made the decision on the applications.

8    In July 2017, a delegate of the Minister informed the appellants that their visa applications were refused. The delegate recorded concerns about the plausibility and credibility of some of the claims made by the father and mother. Based on country information, the delegate found that the claims by the husband that he had been detained twice for monthly periods of time were difficult to accept for a person who had no religious or activist profile. The delegate also questioned the account of the husband that when he was released from detention he was not charged for four months, particularly given his claim that he was eventually convicted and sentenced to 15 years imprisonment. The delegate also noted that after his release on bail, the husband was able to apply for and was issued an Iranian passport which he used to depart the country lawfully and without hindrance.

9    The delegate then stated:

Furthermore [the father] was asked to provide evidence of his court case, such as the summons he received to attend court or a letter from his lawyer to attest to the charges; however as of the date of this decision, the Department has received no post-interview submissions or supporting documentary evidence proving [the father's] Court charges.

10    The delegate did not accept that the father was arrested or detained and was sentenced in his absence to 15 years imprisonment.

11    The appellants say that the father did take steps to provide evidence to the delegate about the charges and the conviction, but they were sent to the wrong email address. The error was not discovered until after the decision was made by the delegate.

Review by the Immigration Assessment Authority

12    The relevant provisions of the Migration Act 1958 (Cth) provided for an automatic review by the Authority of the decision by the delegate. As part of the review process, the father provided a statutory declaration explaining the circumstances that had led to the documents being sent to the wrong email address. In the statutory declaration he said:

(1)    during his interview he was asked to provide evidence of his court case in Iran and he said he would provide the evidence after the interview;

(2)    he was given seven days to provide the information and the case officer wrote her email on a piece of paper;

(3)    on 5 May 2017 he sent an email to the case officer requesting additional time as he was waiting to receive evidence from Iran;

(4)    on 7 May 2017 he sent a church document relating to his wife's claim based upon her conversion to the Christian faith since arriving in Australia;

(5)    on 10 May 2017 he emailed three court documents and a power of attorney to the case officer (the documents were not translated into English);

(6)    after that he received the notification that the visa applications were refused and the decision was explained;

(7)    he was surprised to see reference in the decision to the fact that he had not sent in any evidence;

(8)    on 25 July 2017 he sent a further email checking that the email address was correct and he did not receive a reply;

(9)    he engaged the services of a migration agent and forwarded the emails to her;

(10)    it emerged that he had misread the email address (reading the handwritten address as containing the letter 'v' when it was an 'r');

(11)    with the assistance of a friend he retrieved delivery failure notifications from his spam folder;

(12)    he had since been told that the documents on which he relies must be translated into English and he subsequently provided translations to the Authority;

(13)    the documents had been sent to him electronically by his lawyer in Iran and the lawyer holds the originals; and

(14)    he does not have regular access to the internet and is not good with technology.

13    The appellants sought to rely on the delivery failure notifications and the documents before the Authority. The documents included what were said to be court documents relating to the charges brought against the father in Iran and the sentences imposed as well as a power of attorney given to a lawyer (Court Documents).

14    The Act provides that the Authority must not consider new information unless certain conditions are met. Those conditions are stated in s 473DD. The conditions are expressed in terms that require the Authority to be satisfied as to certain things before new information can be considered. The Authority formed the view that it was not satisfied and therefore the Court Documents could not be received as new information. Broadly speaking there were two reasons given by the Authority for that view. First, the Authority was not satisfied that the father did attempt to send the Court Documents to the delegate as he claimed. Second, the Authority had a number of concerns about the credibility of the Court Documents.

15    In the result, the Authority affirmed the decision by the delegate.

Application for judicial review and appeal

16    The appellants sought judicial review of the Authority's decision in the Federal Circuit Court. The application was refused. The appellants now bring an appeal against that decision. Initially, the appeal grounds were to the effect that the primary judge was in error in not upholding the grounds of review argued unsuccessfully before the primary judge. However, the appellants no longer advance that case on appeal. Instead, they seek leave to amend their grounds of appeal to argue new grounds. The proposed new grounds were set out in submissions filed for the appellants. In the course of argument those grounds were further refined. The proposed ground as developed in argument reduced to a single ground with four particulars.

17    We would state the ground as argued as being that the decision by the Authority as to whether it was satisfied as to the matters stated in s 473DD was reached by a process of reasoning that was illogical or legally unreasonable. Four particular matters were relied upon, namely:

(1)    Alleged errors in the findings by the Authority concerning the length of the original term of imprisonment imposed on the father.

(2)    The manner in which the Authority made findings based on the email failure notifications.

(3)    Alleged errors in the findings as to whether the father should have had knowledge of the outcome of his appeal in Iran.

(4)    The failure by the Authority to assess the credibility of the Court Documents in the context of the whole of his claim, particularly the respects in which the content of the Court Documents were consistent with his claim.

18    The Minister opposed the grant of leave to amend the grounds of appeal to raise the above ground. The Court heard argument both on the leave question and the merits of the ground.

Summary of decision

19    For the following reasons, we grant leave to raise the amended ground of appeal and allow the appeal with costs. We will reserve liberty to apply to vary the cost orders in case any party contends that different cost orders are appropriate. Having regard to the nature of the appeal ground and the findings made by the Authority concerning the credibility of the account by the father as to whether he attempted to send the Court Documents to the delegate, we expect that consideration would be given to whether the matter should be remitted for redetermination by a different reviewer.

The statutory provisions concerning receipt of new information by the Authority

20    Part 7AA of the Act provides for the review by the Authority of the refusal of certain types of protection visa applications. Broadly speaking, Part 7AA applies where there has been a refusal of a protection visa application made by a person who arrived in Australia by boat in an unauthorised way after 13 August 2012 but before 1 January 2014 (and any child of that person born in Australia). Such persons are referred to in the Act as 'fast track applicants'. The review process applies automatically and there is no other merits review process available to fast track applicants. The argument proceeded on the basis that the appellants were fast track applicants.

21    Within Part 7AA is an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Authority: Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217 at [20]. Therefore, it is the statutory provisions in Part 7AA that describe the procedural protections afforded to a visa applicant when the application is referred to the Authority. As to the procedure, there is a duty on the Secretary of the Department to give to the Authority certain review material, including material provided by the visa applicant to the original decision maker (usually a case officer who acts as a delegate of the Minister in deciding whether to grant the application). The Authority may get 'new information' being documents or information that was not before the Minister when the original decision was made and that the Authority considers may be relevant.

22    However, the Authority must not consider new information unless certain conditions are met. They are stated in s 473DD which provides as follows:

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

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

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

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

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

23    So, the Authority must be satisfied that there are exceptional circumstances in all cases. In addition, where the visa applicant is the source of the information, the Authority must be satisfied of one of the other circumstances set out in s 473DD(b)(i) and (ii) before it can consider new information.

24    As to what is meant by exceptional circumstances, in Plaintiff M174/2016, Gageler, Keane and Nettle JJ said at [30]:

Quite what will amount to exceptional circumstances is inherently incapable of exhaustive statement. The word 'exceptional', in such a context, is not a term of art but 'an ordinary, familiar English adjective': '[t]o be exceptional a circumstance need not be unique or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered'.

25    Whether a particular instance is exceptional requires a contextual evaluation by reference to all the circumstances of the case. The requisite state of satisfaction as to whether there are exceptional circumstances cannot be formed by focussing upon a particular aspect to the exclusion of other matters. Section 473DD(a) requires all the circumstances to be evaluated together to determine whether they are exceptional. The phrase 'exceptional circumstances' is to be given a broad meaning and matters that form part of those circumstances may overlap with those referred to in s 473DD(b). As to these matters, see Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; (2017) 257 FCR 111 at [104] (Kenny, Tracey and Griffiths JJ); AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111 at [14] (McKerracher, Murphy and Davies JJ); Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110; (2018) 264 FCR 249 at [51] (McKerracher, Murphy and Davies JJ); and the analysis by Mortimer J in CVV16 v Minister for Home Affairs [2019] FCA 1890 at [23]-[27].

26    Section 473DD specifies two requirements, those in para (a) and those in para (b) (which itself has two alternatives). The two requirements in (a) and (b) are cumulative. If one is not met then the new information must not be considered. There is no need to go on and consider the other requirement: AUH17 v Minister for Immigration and Border Protection [2018] FCA 388 at [34]. However, because the considerations that are relevant to the two requirements may overlap, an error as to the formation of the state of satisfaction as to one may infect the other.

27    Because s 473DD requires the Authority to be satisfied as to matters under both (a) and (b), the prohibition upon considering new information applies if it is not satisfied as to either.

28    Finally, it is to be noted that both requirements depend upon the state of satisfaction of the Authority. It is for the Authority, and not the Court on review, to form the required state of satisfaction. The Court may take a different view but that would be insufficient to establish jurisdictional error. There must an error of a kind that demonstrates that the required state of satisfaction has not been formed by the Authority. In that regard, an implied standard of reasonableness must be met.

29    So, when it comes to considering whether the Authority's decision may be reviewed for unreasonableness, as Allsop CJ (Wigney J agreeing) said in Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at [12]:

Crucial to remember … is that the task for the Court is not to assess what it thinks is reasonable and thereby conclude (as if in an appeal concerning breach of duty of care) that any other view displays error; rather, the task is to evaluate the quality of the decision, by reference to the statutory source of the power and thus, from its scope, purpose and objects to assess whether it is lawful. The undertaking of that task may see the decision characterised as legally unreasonable whether because of specific identifiable jurisdictional error, or the conclusion or outcome reached, or the reasoning process utilised.

General principles to be applied where unreasonableness in factual findings is alleged

30    The following principles, as stated in Vo v Minister for Home Affairs [2019] FCAFC 108 at [43] (Derrington, Banks-Smith and Colvin JJ) when considering whether there had been jurisdictional error by the Administrative Appeals Tribunal by reason of a breach of the implied standard of reasonableness in making factual findings, apply equally to the review of a decision by the Authority:

(1)    the test for unreasonableness is stringent and extremely confined: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [11], [52], [135];

(2)    where reasons have been provided then the reasons are the focal point for assessing whether the decision was unreasonable: Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [46]-[47];

(3)    unreasonableness will not be demonstrated on the basis of a complaint about the weight given to particular evidence or material because determination of the weight to be given to evidence or material is a matter entrusted to the Tribunal: Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297 at [4]-[5];

(4)    it is for the Tribunal to reach conclusions about credibility and unreasonableness is not shown by complaints about credibility findings alone, but may be demonstrated where a finding on credit on an objectively minor matter of fact is used as a basis for rejecting the entirety of the claimant's evidence (a conclusion to be reached with a high degree of caution): CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496 at [40]-[45] and DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175 at [30];

(5)    generally speaking, the Tribunal has the authority to reach conclusions about the inferences that might be drawn from particular evidence or material;

(6)    the Tribunal is not required to refer to every piece of evidence placed before it: ETA067 v The Republic of Nauru [2018] HCA 46 at [13];

(7)    …

(8)    mere strong disagreement with factual reasoning does not establish jurisdictional error: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at [40];

(9)    a decision (not just a part of a decision) which lacks an evident and intelligible justification is unreasonable: SZVFW at [10], [82];

(10)    a decision that no reasonable person could have arrived at is one circumstance in which the decision may be unreasonable, but there may be others - the category is not limited to such instances: SZVFW at [10], [59], [82], [89], [133]; and

(11)    there must be an error that is so grave both as to its nature and the significance of its subject matter that it results in a decision that has been reasoned in a manner that it is not authorised: Hossain at [25], [30]-[31].

31    In support of the appeal, reliance was also placed upon the decision of Murphy J in BNV18 v Minister for Home Affairs (No 2) [2019] FCA 378 at [27] where his Honour, albeit in a different statutory context, collected authorities to the effect that there should be an active intellectual engagement in the performance of the statutory task and that the decision-maker should avoid a 'quest to disbelieve' as well as irrationality or legal unreasonableness.

Reasoning by the Authority in refusing to receive documents as new information

32    When the decision to refuse the appellants' visa applications was referred to the Authority, a migration agent acting for the appellants provided a statutory declaration of the father to the Authority.

33    By then, translations of the Court Documents had been provided to the Authority by the migration agent. The translations stated on their face that they were undertaken by a NAATI accredited professional translator on 4 August 2017. They described charges that related to the father's religious belief as a person of Ismaili faith, a form of Muslim faith not recognised by the constitution of Iran.

34    The migration agent had earlier sent untranslated versions of the Court Documents and a church document to the Authority under cover of an email dated 3 August 2017. The email indicated that translations were being obtained. Three of the untranslated documents were headed with the Emblem of Iran and the scales of justice. Two of those documents were endorsed with what appeared to be a signature and a handwritten date. The document without the Emblem of Iran appeared to bear handwritten signatures.

35    The migration agent also forwarded copies of delivery failure notifications to the Authority by email dated 22 August 2017. The notifications were a few pages in length. They included long sections of computer code that were meaningless to the untutored. However, each notification took the form of an email with the subject reference 'Failure Notice'. The notifications were dated 5 May, 10 May and 25 July 2017. They each included a statement that 'Below this line is a copy of the message'. There then followed computer code of some length. In each case, the three failure notice emails then set out a sending email address that included the name of one of the children of the family, a date and time for the undelivered message and a subject. Each of the emails had been sent to the same email address. There was no issue that the address as shown was an address for the delegate who made the decision except that instead of using the correct address ending 'border.gov.au' it stated 'bovdev.gov.au'.

36    The notifications for 5 May and 25 July 2017 then included the text of the email message that had not been delivered. In the case of the notification for 5 May 2017, it said:

To whom it may concern

This is [father] and [mother]

We were supposed to prepare some extra documents from our country(Iran) in order to prove for our case and the time you gave us was one week, but it seems one week is not enough to prepare all of them. So, I will be appreciate [sic] if you give us one week more for this issue.

Thanks regard

[name of father]

[name of mother]

Sent from my iPhone

37    The date of 5 May 2017 was one week after the interview with the Minster's delegate on 27 April 2017.

38    In the case of the notification dated 25 July 2017 (sent after the decision was made by the delegate), the text of the email in the body of the notification was:

Hello sir/madam

Would you please help me and reply this email. Because I want to know this email address is right or no [sic].

Thanks

[name of father]

Sent from my iPhone

39    In the case of the notification for 10 May there was no text. However, amongst other things, there was a description of the content type as being 'image/jpeg' and a reference to a filename 'IMG_1357.JPG'.

40    There was no delivery failure notification for 7 May 2017 which was when the father said he sent the church document.

41    The Authority received the statutory declaration as new information and then reasoned in the following way as to receiving the Court Documents (paras 5-6):

In his new statutory declaration the father claims that he emailed the delegate on three occasions in May 2017 providing her with further evidence. However, after receiving the delegate's decision he realised that she did not receive this evidence and was advised by his migration agent that the email address he had for the delegate was incorrect. A friend then assisted him in finding the 'delivery failure notifications' in his spam folder. The applicants have provided copies of email failure notices in respect of emails the father attempted to send to the delegate on 5 May 2017 and 10 May 2017 before her decision. The father further claims that he emailed the delegate a church document on 7 May 2017 but has not provided a copy of this email. He further claims that he sent three court documents and one power of attorney to the delegate on 10 May 2017. I note the email failure notice of 5 May 2017 shows his original email requesting additional time to provide documents but the email failure notice of 10 May 2017 does not show his original email. I am willing to accept that the father was not aware that his emails of the 5 May 2017 and 10 May 2017 had been not been received by the delegate until after he received the delegate's decision so I am satisfied these email failure notices were not, and could not have been provided to the Minister before the decision. In his new statutory declaration the father further claims that he emailed the delegate on the 25 July 2017 asking if it was the correct email address and never received a reply and has provided a copy of the email failure notice in respect of that email which also shows his original email. As it post-dates the delegate's decision, I accept that this email failure notice was not, and could not have been, provided to the Minister before the decision. Nonetheless, as the father has not provided the original emails of the 7 and 10 May 2017, when he purportedly attempted to send the court documents, power of attorney and church document to the delegate, I am not satisfied on the evidence that he attempt to send these documents on these occasions. For these reasons I am not satisfied there are exceptional circumstances to justify considering the three email failure notices he has provided to the IAA. Given this, the applicants have not also not satisfied me that the court documents, power of attorney and church document that have now been provided to the IAA were not, and could not have been, provided to the Minister before the Minister made the decision.

I also have concerns about the credibility of the court documents and power of attorney that have been provided. In the application for protection the father indicated that the applicants departed Iran on 18 February 2013 and he was convicted and sentenced to 15 years towards the end of 2014. However the court documents he has now provided indicates he was convicted and sentenced on 10 August 2012 (prior to his departure) to eighteen years for one offence and two years for another. In his statement of claims dated in February 2017 he claimed that his lawyer had appealed the decision but did not think it would be successful and did not appear to be aware of any further information in regards to his appeal. The translation of the court order dated indicates that an appeal was lodged on his behalf, and as a result, his sentence was reduced from 23 years imprisonment to 15 years by court order dated 11 March 2014. I find it difficult to believe that he would not be aware of his court appeal outcome that was finalised years prior in 2014. I also note that that there are a number of inconsistencies in these documents in regards to the numerical reference to his original conviction and the date of his first conviction and his original sentence. I also note that the translation of the power of attorney does not indicate a date of signature so I cannot be satisfied on the evidence when it was prepared. In his statutory declaration he claimed that these documents were sent to him electronically by his lawyer but he has not provided any evidence of these communications. Given these concerns the applicant has not satisfied me that the three court documents and power of attorney are credible personal information. I am also not satisfied there are exceptional circumstances to justify considering these documents.

42    It can be seen that in para 5 the Authority concluded that it was not satisfied that the father attempted to send the Court Documents or the church document. On that basis, the Authority found that both the requirement for exceptional circumstances (s 473DD(a)) and the requirement that the information could not have been provided to the Minister (s 473DD(b)(i)) were not met as to those documents. The Authority appears to have accepted that the emails of 5 and 10 May and 25 July were sent. However, the Authority stated that because the original emails for 7 and 10 May were not provided, the Authority was not prepared to accept that there was an attempt to send the Court Documents and the church document on those two occasions. The reasoning appears to assume that the absence of text in the non-delivery notifications for 10 May was significant because the Authority accepted that the 5 May email (where the notification included the text of the email) had been sent.

43    In para 6 the Authority reasoned that the Court Documents were not credible personal information (s 473DD(b)(ii)) and concluded that there were no exceptional circumstances to justify considering the Court Documents.

44    The Authority then affirmed the decision not to grant protection visas to the applicants. It did so without considering the Court Documents.

Why the reasoning in para 5 was unreasonable

45    The reasoning by the Authority in para 5 suffers from a number of defects.

46    First, the decision by the delegate referenced a request to provide evidence of the court proceedings in Iran. That request provided the context in which to evaluate whether the appellants took steps for those documents to be sent to the delegate. The request made it likely that there had been an attempt to respond by sending documents of the kind sought by the request, namely the Court Documents. The delegate's understanding that they had not been sent despite being requested was critical to the formation by the delegate of the required states of satisfaction that conditioned the circumstances in which the Court Documents might be received as new information.

47    Second, having accepted that the email of 5 May 2017 was sent, the Authority did not bring to account the content of that email in determining whether the Court Documents were sent as part of the email on 10 May 2017. The fact that the appellants had taken the trouble, within the one week deadline, to send an email seeking additional time to send the documents (as they were being obtained from Iran) was a significant fact to be brought to account in determining for the purposes of forming the required states of satisfaction for the purposes of s 473DD. The explanation that they were being sought from Iran was consistent with the email referring to documents of the kind that had been requested by the delegate.

48    Third, the fact that there was no text in the emails as reproduced in the failure notifications of 10 May 2017 was explicable by the possibility that there was no text in the email itself and the email simply attached the documents. This possibility was obvious and was a matter that would be expected to be considered by a reasonable decision-maker undertaking the task of the Authority. Submissions were advanced for the appellants to the effect that it could be deduced from the non-delivery notification for 10 May that the message comprised an attached .JPG file and that was a matter that supported a conclusion that the relevant documents were attached. However, it is not to be expected that the reviewer had expertise to be able to form views of that kind. Rather, a reasonable approach to decision making would recognise the possibility that the email had no text and simply included the relevant documents as an attachment. In other words, the absence of text in the notification was explicable by that possibility which a reasonable decision-maker would consider.

49    Fourth, the statutory declaration of the father that was presented to the Authority and received by it as new information stated that it had been prepared with the assistance of a named migration agent. In the body of the statutory declaration was a statement that the emails of 5, 7 and 10 May had been forwarded to the migration agent. The finding by the Authority was, in that context, a finding that emails with the attached documents did not exist. Given that the Authority accepted that the emails had been sent, but found that there was no attempt to send emails with the relevant documents attached, it was a finding of some seriousness because it indirectly impugned the migration agent. It was a finding that could not reasonably be made by a decision-maker adopting appropriate circumspection in making findings of that character without some other basis for the finding.

50    Fifth, having accepted that on 10 May 2017 the father had attempted to send an email of some description to the delegate, a decision-maker acting reasonably would have considered what that email could have said or contained if indeed it did not attach the Court Documents. The absence of any other explanation for the sending of an email on 10 May 2017 and the failure by the Tribunal to address that aspect in its reasons was a failure to engage with an obvious and compelling point in favour of the account given by the father as to what happened concerning the sending of the Court Documents to the Tribunal.

51    Sixth, the Authority has not provided any reasons as to why the statement by the father in his statutory declaration should not be accepted. The evidence of the father given by the declaration was that the documents had been sent by email. While the Authority was not required to give reasons for its decision not to consider the email notifications as new information, in the context of the reasons which it did give, and its acceptance of the statutory declaration as new information, this gap in its reasons taken together with the matters we have described meant that the reasoning lacked an evident and intelligible justification for not accepting the father's account.

52    Seventh, the Authority made the findings without making the simple request for the emails to be provided. Although the Authority had no duty to get the information for the purpose of forming the requisite states of satisfaction, when it formed the view that the information in the statutory declaration was new information it had power to request and consider the emails themselves. The fact that the Authority formed its views without making that simple request manifests unreasonableness in the approach the formation of the required states of satisfaction.

53    In the above circumstances, the conclusion that on the evidence the father did not attempt to send the Court Documents on 10 May 2017 was supported by reasoning that was unreasonable in the requisite sense. It fell outside the range of conclusions that were open to a decision-maker undertaking the fact finding task of the Authority for the purpose of forming the states of satisfaction required by s 473DD of the Act.

Consequence for Authority's conclusion concerning exceptional circumstances

54    In para 5, the Authority reasoned that it was not satisfied that there were exceptional circumstances to justify considering the email failure notifications. However, it did not, at that point, reach a view as to whether there were exceptional circumstances pertaining to the Court Documents. Rather, it went on in para 6 to consider the credibility of those documents. It formed the view that they were not credible personal information. On that basis, the Authority concluded that it was not satisfied that there were exceptional circumstances to justify considering the Court Documents. It appears that conclusion rested solely upon a finding that the documents were not credible.

55    Before the primary judge there was an issue concerning the proper approach to be adopted in considering whether information was 'credible personal information' for the purposes of s 473DD(b)(ii). It has been held that the relevant state of satisfaction to be formed is whether the personal information is credible in the sense that it is open to or capable of being accepted: CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 at [41]-[42] (Bromberg J). The primary judge accepted the 'open to or capable of being accepted' test but found that any error by the Authority as to the approach to credibility did not infect the finding as to exceptional circumstances.

56    As we have noted, the grounds advanced before the primary judge were not pressed on appeal and the primary judge's conclusions as to those matters stand. When those grounds were still being pressed in the appeal, the Minister formally contended that s 473DD(b)(ii) permitted the Authority to reach a firm conclusion as to the credibility of information for the purposes of considering whether there was 'credible personal information'. However, the Minister accepted that it was not necessary to determine the notice of contention for the purposes of addressing the ground upon which the appeal was ultimately argued, namely that the factual findings for the purposes of s 473DD were illogical and legally unreasonable.

Why the reasoning in para 6 was unreasonable

57    The Authority identified a number of matters to support its conclusions that it was not satisfied that (a) the Court Documents were 'credible personal information' and (b) that there were exceptional circumstances to justify considering the documents. As we have noted, because the conclusion concerning exceptional circumstances was not separately reasoned it rests solely upon the views of the Authority as to the lack of credibility of the Court Documents.

58    The matters relied upon by the Authority to conclude that the Court Documents were not credible personal information and, for that reason, there also were not exceptional circumstances were:

(1)    the father had said he departed Iran on 18 February 2013 and was convicted and sentenced to 15 years imprisonment towards the end of 2014 whereas the Court Documents indicated that he was convicted and sentenced on 10 August 2012 (before his departure) to a total of 20 years imprisonment;

(2)    the father said that his lawyer had appealed the decision but did not think it would be successful when the translation of the court order showed that on appeal his sentence was reduced from 23 years to 15 years by court order dated 11 March 2014;

(3)    it was difficult to believe that the father was not aware of the outcome of the appeal that was finalised in 2014;

(4)    there were inconsistencies in the Court Documents as to the numerical reference to the original conviction and the date of the father's first conviction and original sentence;

(5)    the translation of the power of attorney for the lawyer did not indicate a date of signature so it did not indicate when it was prepared; and

(6)    the father had not provided any evidence of his communications with his lawyer by which he said he obtained the documents.

59    Save that the original order referred to terms of imprisonment totalling 23 years not 20 years, each of the above findings is supported by the materials before the Authority. Counsel for the appellants submitted that the error concerning the original sentence showed that the Authority had not properly considered the material. However, the submission is not supported by the fact that save for that one error all the other matters are supported by the materials and involve a close consideration of both the Court Documents and the account given by the father. Further, the error itself was not material to a conclusion concerning the credibility of the documents. Significantly, the point being made by the Authority was that the original conviction was not for 15 years and it was imposed before the appellants left Iran which was contrary to the version of events provided by the father. These aspects are supported by the material that was before the Authority.

60    It was further submitted that there was no inconsistency in the numerical reference to the original conviction. This submission was made on the basis that the Authority was referring to the number of years of the original sentence which was consistently stated in the Court Documents to be 23 years. However, we accept the submission for the Minister that the words 'numerical reference' used by the Authority refer to the identification reference numbers on the documents. It is apparent from the documents that they do contain an inconsistency. We also accept that the phrase 'date of his first conviction and original sentence' is a reference to the singular date of those events as stated in the Court Documents (where there do appear to be two different dates), not some inconsistency in the documents concerning the length of the initial sentence.

61    Nevertheless, there is merit in the submission for the appellants that a conclusion as to whether the Authority was satisfied that the Court Documents were credible could not be reached by a process of collecting the evidence that cast doubt on their credibility. An approach which focussed only upon the material that supported a conclusion that the Court Documents were not credible was not consistent with the statutory task which required the Authority to act reasonably in forming the required state of satisfaction. It would be a 'quest to disbelieve' instead of an objective evaluation of all the material. The same would be the case irrespective of whether the test as to credible personal information is whether the information is open to or capable of being accepted or whether it allows the Authority to form a final view as to its credibility. If the Authority adopted a one-sided perspective then that would be an unreasonable manner in which to approach the relevant fact-finding task.

62    In that regard, the Authority reached its conclusion by compiling a list of respects in which there were inconsistencies between the content of the Court Documents and the account given by the father. However, the Authority failed to consider the following respects in which the Court Documents were consistent with his claims.

63    First, there were three offences identified in the Court Documents.

64    Second, the offences related to insulting the supreme leader of Iran, namely the Ayatollah.

65    Third, the offences related to what the father had done as an employee.

66    Fourth, the offending conduct was attributed to the father's Ismaili (Esmaeili) faith.

67    Fifth, the sentence imposed was 15 years.

68    Sixth, the order under appeal was stated in the appeal order to have been made on 16 February 2013 which was two days before the appellants said they had fled Iran.

69    Seventh, the account given by the father was that four months after the first occasion that he was detained he was given a letter to go to court and he went to Branch 53 of the General Courts. The documents refer to Branch 53.

70    Eighth, the father's account was that when he arrived at Branch 53 he was arrested and held in custody and then released on bail. He then got a lawyer. The notation in the first order that forms part of the Court Documents is that the father was temporarily arrested until further notice from 9 May 2012 'on the basis of insulting the supreme leader and high ranking state officials, and sacrilege to Islamic values and religious beliefs'. These details are consistent with the father's account of being arrested and detained before he was charged.

71    Ninth, the orders refer to the father being represented by the lawyer who provided the power of attorney.

72    Further, there was no material before the Authority concerning the nature of the documents or the appeal process in Iran. The Authority did not recognise the limitations that posed where it was seeking to evaluate the credibility of the documents. For example, the documents as translated referred to a 'draft date'. The Authority appears to have assumed that the date was that of the order rather than some other date, such as the date of commencement of the relevant proceedings.

73    The reasonableness of the Authority's approach to fact-finding in para 6 is to be evaluated having regard to the overall nature of the statutory task being discharged by the Authority. It was undertaking a fast track statutory review in which there were two possible outcomes, either the decision to refuse the visa applications was to be upheld or the matter was to be referred back to the delegate.

74    Where, as in the present case, there was new information, which if accepted, meant that the delegate had proceeded upon a false premise and the process before the delegate would not be confined in the manner of a fast track review, then that was an important aspect to be brought into account in determining whether the decision was reasonable. One possible consequence in such cases is the disadvantage to a visa applicant of the credibility of the material being evaluated for the first time as part of the fast track process. Instead of the resources available to the Minister being used to assess the credibility of the Court Documents, including the ability to make further inquiries and deploy available expertise as to the authenticity of documents, the Authority could not receive the Court Documents unless it formed the required states of satisfaction. If the circumstances explained adequately why the documents were not before the delegate when the decision was made, then the reasonableness of the approach to fact finding was to be assessed having regard to the disadvantage to a visa applicant of having the question of the credibility of those documents finally determined for the first time by the Authority as part of the fast track process.

75    For those reasons, the fact that the Authority had, by a process of reasoning that was jurisdictionally defective, found that the appellants did not attempt to provide the Court Documents to the delegate was an important part of the context for evaluating whether the reasoning in para 6 was legally reasonable.

76    If the Authority had found that there was an attempt to provide the Court Documents to the delegate (a possibility that must be recognised once the reasoning in para 5 is shown to be defective) then the unreasonableness of the Authority in forming its own concluded view as to the credibility of those documents so as to exclude them from its own substantive consideration would be manifest. The nature of the decision to be made, namely whether the matter should be sent back to the delegate, would be informed by the fact that the Court Documents had not been considered by the delegate when they would have been but for circumstances that have been adequately explained by the visa applicant.

77    An issue arose as to whether the impugned reasoning in para 5 might be said to have infected the subsequent finding in para 6 concerning the credibility of the Court Documents. There is nothing in the way the Authority expressed its reasons to indicate that the finding to the effect that the Authority was not satisfied that the father had attempted to send the documents infected the subsequent reasoning as to why the Authority found that the documents were not credible personal information.

78    There is a hint that matters in para 5 may have carried over into para 6 in the opening words to para 6 being 'I also have concerns about the credibility of the court documents and power of attorney that have been provided' (emphasis added). However, that language is just as consistent with the Authority taking the view that the issues with credibility were a separate and additional basis as to why a favourable state of satisfaction from the perspective of the appellants could not be formed.

79    For the Minister it was submitted that, in those circumstances, the Authority's reasoning in each of paras 5 and 6 should be approached on the basis that they provided independent foundations to support the conclusion by the Authority that it could not receive the Court Documents as new information. On that basis it was said that if the reasoning in para 6 has not been shown to be reviewable for jurisdictional error then the appeal must fail.

80    However, it remains significant that the effect of the Authority's reasoning process was that the credibility of the Court Documents was evaluated in circumstances where the Authority had already concluded that it was not satisfied that there was any attempt to send the Court Documents to the delegate on a date that was just under two weeks after the interview with the delegate. Further, it is to be noted the credibility of the Court Documents was not assessed in the context of the overall claims made by the appellants. The Authority's reasoning was that the documents were not credible and therefore it was not satisfied that there were exceptional circumstances.

81    Therefore, the appellants have demonstrated that the reasoning in para 6 was defective in two respects. First, it failed to approach its task as requiring an evaluation of all of the relevant material and instead simply collected reasons for a particular result. Second, the consequence for the reasoning in para 6 of the defective reasoning in para 5 is that it removes the possibility of the credibility of what the father was saying about the Court Documents having been sent to the wrong email address being brought to account to support the position of the appellants as to the credibility of the Court Documents. It was legally unreasonable for the required state of satisfaction to be reached by an approach to fact-finding of that kind.

There should be leave to amend to raise the new ground

82    The principles to be applied in considering whether to grant leave to amend to raise a new ground of appeal for the first time on appeal were summarised in CHZ19 v Minister for Home Affairs [2019] FCA 914 at [31]-[39] (Colvin J).

83    In this case the application to raise the new ground was made when pro bono legal assistance was first provided to the appellants in the appeal. This explains why the amendment was made and when. However, it is to be noted that the ground was not raised before the primary judge where the appellants were legally represented. Therefore, this is an instance where the concerns about the first instance decision being reduced to a preliminary skirmish are manifest.

84    On the other hand, the subject matter of the proceedings counts in favour of allowing leave, as does the merit of the ground. In this case, if the appellants' claims are correct the father will face 15 years imprisonment and likely torture if sent back to Iran, outcomes that would have a devastating effect on all appellants.

85    It was submitted for the Minister that leave should be refused because it raises matters that could have been answered by evidence before the primary judge. It was submitted that if the ground had been advanced below then the Minister could have required the appellants to produce the emails that were alleged to have been sent for the purpose of determining whether in fact the relevant email attached the Court Documents. It was submitted that the evidence of the emails would have been relevant for two reasons.

86    First, it was submitted that if the emails showed that the Court Documents had not been sent as an attachment to the undelivered emails then that would show that the decision was not unreasonable as to the result. However, it is the unreasonableness of the decision that was made that is to be evaluated. Its unreasonableness depends upon the material that was before the decision-maker at the time of the decision. An application to review a decision made by a statutory decision-maker for jurisdictional error is focussed upon whether the statutory task was performed in accordance with the legislation. It is not a factual inquiry as to whether the outcome would have been correct if there had been a different set of materials before the decision-maker. Therefore, that argument should not be accepted.

87    Second, it was submitted that where it has been demonstrated that there is reviewable error in the form of unreasonableness, the Court on an application for review could consider material that was not before the decision-maker for the purpose of concluding whether the error was material. Materiality is concerned with the significance of the failure to conform to the statutory task entrusted to the decision-maker. As reasoned in Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123, where a statutory requirement must be met in order for there to be a valid exercise of power then it is to be construed as providing for invalidity only where there is a material breach: at [29]-[30] (Kiefel CJ, Gageler and Keane JJ).

88    Conduct that is said to amount to jurisdictional error is only material (and therefore jurisdictional) if compliance with the requirement could realistically have resulted in a different decision: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [38], [44]-[45] (Bell, Gageler and Keane JJ). The inquiry is backward looking and concerns what the decision-maker did in the particular case: PQSM v Minister for Home Affairs [2019] FCA 1540 at [65] (Colvin J); and LKQD v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1591 at [46]. Compliance is determined by reference to what might have occurred if there had been different material before the decision-maker.

89    Both submissions advanced by the Minister invite the Court to form its own view as to the decision that should have been made. To do so would be to usurp the statutory authority entrusted to the decision-maker and go beyond the nature of the Court's review jurisdiction.

90    There was, in any event, a realistic possibility that a different decision could have been reached by the Authority which would not have involved the Authority seeing a copy of the emails. Had the Authority not made the errors we have identified, it could well have considered the Court Documents in its review and, perhaps, have remitted the decision to the delegate for reconsideration on the basis that he took them into account. That possibility was a realistic one, and is sufficient to establish that the errors were material regardless of the content of the emails (which it did not have).

91    Therefore, the proposed new ground raises matters of legal argument only and do not give rise to factual issues that might have been addressed in the manner contended for by the Minister. Those matters do not count against the grant of leave.

92    For those reasons, there should be leave to amend the notice of appeal to raise the ground as articulated in the course of oral argument.

Associate:

Dated:    27 February 2020