FEDERAL COURT OF AUSTRALIA

BZC17 v Minister for Immigration and Border Protection [2018] FCA 902

ORDERS

THE COURT ORDERS THAT:

1.    The time in which to file a notice of appeal from the orders of the Federal Circuit Court made on 1 December 2017 is extended to19 January 2018.

2.    Leave is granted to the appellant to rely on an amended notice of appeal in the form provided to the Court and dated 10 May 2018.

3.    The appeal be allowed.

4.    The orders of the Federal Circuit Court made on 1 December 2017 be set aside and in their place, order:

(a)    The decision of the Immigration Assessment Authority made on 12 April 2017 be set aside.

(b)    The matter be remitted to the Immigration Assessment Authority for determination in accordance with law.

(c)    The first respondent pay the appellant’s costs of and incidental to the application to the Federal Circuit Court.

5.    The first respondent pay the appellant’s costs of and incidental to the appeal, to be fixed by way of a lump sum to be agreed between the parties.

6.    In the absence of any agreement as to a lump sum for the appellant’s costs, the matter of fixing a lump sum for costs is to be referred to a Registrar for determination.

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

REASONS FOR JUDGMENT

MORTIMER J:

1    The appellant appeals from orders of the Federal Circuit Court made on 1 December 2017, dismissing his application for judicial review of a decision made by the Immigration Assessment Authority in relation to his claims to be entitled to the grant of a protection visa.

2    For the reasons set out below, the appeal will be allowed.

background

3    As the Authority accepted, the appellant is a citizen of Iraq. He arrived in Australia in February 2013. For reasons that do not appear from the evidence before the Court on this appeal, the appellant did not lodge an application for a temporary protection visa until May 2016. In January 2017, a delegate of the Minister refused to grant the appellant a temporary protection visa, and the decision was referred to the Authority for review under Pt 7AA of the Migration Act 1958 (Cth).

4    In a decision made on 12 April 2017, the Authority affirmed the delegate’s decision not to grant the appellant a protection visa. On 8 May 2017 the appellant applied for judicial review of the Authority’s decision in the Federal Circuit Court. His application was, as I have noted, dismissed: see BZC17 v Minister for Immigration and Border Protection [2017] FCCA 2981.

5    The appellant’s claims and the structure and content of the Authority’s decision are set out in detail in the Federal Circuit Court’s reasons for judgment, and I do not repeat them here, other than to the extent necessary to consider the grounds of appeal.

6    The appellant advanced four grounds of judicial review before the Federal Circuit Court, although one was abandoned at the hearing. The three grounds which were pressed were as follows:

Ground 1 – Error of Law – The Tribunal acted outside of jurisdiction in overlooking photographic evidence provided by the Applicant relating to his father’s role in the military and accordingly failing to determine whether the evidence was able to be considered in the review pursuant to section 473DD of the Migration Act 1958 (Cth).

Ground 3: Error of Law – The Tribunal acted outside of jurisdiction in failing to complete the statutory task imposed by section 473DD of the Migration Act 1958 (Cth) by failing to consider whether purported ‘new information’ provided by the Applicant satisfied sub-paragraph (b) of the section.

Ground 4: Error of Law – The Tribunal acted outside of jurisdiction in unreasonably and in the absence of evidence finding at [91] “I am satisfied that the applicant has relatives and tribal connections in Basra and that his relatives and members of his tribe would, if required, act as sponsors and provide assistance or other support to him in Basra on his return to Iraq”.

7    Ground 1 related to photographs supplied by, or on behalf of the appellant, to the Authority, which had not been before the delegate. These included photographs of a bravery medal and a bravery certificate awarded to the appellant’s father. It is not in dispute that the role and status of the appellant’s father in the Iraqi army, prior to the fall of Saddam Hussein, was a central aspect of the appellant’s claims for protection.

8    The second ground of review (ie ground 3 before the Federal Circuit Court) related to the Authority’s understanding and application of s 473DD of the Migration Act, and the circumstances in which the Authority could receive and consider “new information” provided by the appellant.

9    The third ground of review (ie ground 4 before the Federal Circuit Court) related to the question whether it was reasonable for the appellant to return to Iraq and live in a part of Iraq other than Baghdad. As expressed, the ground purported to invoke the concept of legal unreasonableness.

10    The Federal Circuit Court rejected each of the grounds of review:

(a)    As to the first ground, the Federal Circuit Court held that it was open to the Authority not to be satisfied that the photographs put forward by the appellant were relevant to the claims for protection that he advanced. If the photographs were not relevant, the Federal Circuit Court held there was no obligation imposed on the Authority to apply the terms of s 473DD of the Migration Act (concerning the reception and consideration of new information) to the photographs.

(b)    The Federal Circuit Court held there was no error in the Authority’s approach in relation to other material put before the Authority by the appellant. It held that the Authority made express reference to both limbs of s 473DD, as it was required to do and that distinguished the circumstances from authorities such as CHF16 v Minister for Immigration and Border Protection [2017] FCAFC 192.

(c)    The finding that the appellant could return to Iraq and live in Basra was not affected by legal unreasonableness because the finding was open to the Authority, “given the identified connections” of the appellant with Basra.

The appeal to this court

11    The appellant filed his appeal to this Court one day out of time. An explanation for the notice of appeal being filed a day late was given by the appellant’s legal representative, Mr Hearn, who filed an affidavit affirmed on 19 January 2018. In that affidavit Mr Hearn deposed that “immediately following the proceeding” the appellant gave him instructions to “seek judicial review” of the Federal Circuit Court decision in this Court. Nothing turns on Mr Hearn’s use of the term judicial review rather than appeal, because the notice that was filed was plainly a notice of appeal in accordance with this Court’s rules. Mr Hearn deposed to some delays in receiving advice from counsel who had represented the appellant before the Federal Circuit Court about grounds of appeal, and also deposed to leave that he took in the two weeks leading up to 25 December 2017. He deposed to receiving a notice of appeal from counsel on 26 December 2017 and attempting to file it on 27 December 2017 having omitted to secure a fee waiver for his client, which caused some additional delay of several days. He finally filed the documents on 30 December 2017, but was informed they were out of time.

12    The Minister neither consented nor opposed the application for an extension of time.

13    In MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; 242 FCR 585 at [41]–[66], in the context of a review of a decision of a Federal Circuit Court judge to refuse to extend time, I set out what I consider to be the appropriate approach to the exercise of this discretion. I adopt the approach I set out in those passages, where I discuss some of the authorities dealing with the discretion to extend time.

14    I consider it is in the interests of the administration of justice that time be extended to allow the appellant to appeal. He has, through his legal representative, provided a reasonable explanation for the delay of one day and I consider the grounds of appeal have sufficient merit to warrant the extension of time being granted. There was no delay on his part in instructing his legal representatives to appeal. The Minister did not suggest there was any prejudice in an extension of time being granted. Since the application for leave was heard together with the application for appeal, there is no extra imposition on the Court’s resources, the proceedings of other litigants, or the Minister’s resources.

15    When the appellant’s submissions on the appeal were filed, those submissions indicated that the appellant would seek to rely on an amended notice of appeal. The submissions stated that the form of the proposed amended notice of appeal was attached to the submissions. That was not in fact the case and after some communication from the Court, the appellant provided a proposed amended notice of appeal on 10 May 2018.

16    The three proposed amended grounds of appeal are described in the appellant’s written submissions in the following way, reflecting almost word for word the way the grounds are expressed in the amended notice of appeal:

His Honour erred in finding at [64] that “it was open to the Authority to treat the photographs as not being relevant and therefore not being new information within s 473DC of the Act. On a fair reading of the Authority’s reasons, that is precisely what the Authority did” and further erred in not finding that jurisdictional error was established by an Assessor overlooking photographic evidence provided by the Appellant relating to his father’s role in the military and accordingly failing to consider it in the review pursuant to section 473DD of the Migration Act

His Honour erred in finding at [68] that, “The decision of the Authority in the present case clearly referred to the whole of the provisions in s 473DD of the Act. That is a basis for distinguishing the cases most recently culminating in a decision in CHF16 v Minister for Immigration and Border Protection [2017] FCAFC 192”, and in not finding that in the circumstances there had been a failure to apply the correct test under section 473DD of the Migration Act 1958 and jurisdictional error.

His Honour erred at [70] in finding, “It is apparent on the Authority’s reasons, that it was open to the Authority given the identified connections with Basra, to make the findings made in paragraph 91. It cannot be said that that finding was legally unreasonable” and further erred in not finding the decision was attended by jurisdictional error.

17    Again, the Minister neither consented nor opposed the application to rely on the amended grounds of appeal.

18    I consider it is in the interests of the administration of justice that the appellant be able to rely on the proposed amended grounds of appeal. Although differently expressed, and perhaps with different emphasis, each of the grounds essentially picks up the grounds of review advanced before the Federal Circuit Court.

19    In CPE15 v Minister for Immigration and Border Protection [2017] FCA 591 at [14], I referred to observations on the grant of leave which I had made in ALZ15 v Minister for Immigration and Border Protection [2017] FCA 279 at [30], and added:

When they are challenged, administrative decisions which may provide the foundation for the detention of an individual in Australia and her or his involuntary removal from Australia are, rightly, carefully scrutinised by courts to ensure they meet these fundamental criteria. It would be inimical to the rule of law for administrative decisions that do not meet those criteria to affect a person’s liberty, and her or his opportunity to seek or retain executive permission to remain in Australia

20    As I noted in CPE15, my observations in ALZ15 at [30] were in part directed at circumstances where an appellant is self-represented, but they also contained a statement of a broader principle. The appellant was represented below and is represented here, so he has not suffered the same disadvantages as many litigants who go through the judicial review and appeal process without any working knowledge of Australian law and Australian legal processes.

21    I consider each of the grounds is arguable. The Minister was on notice of the new grounds prior to the hearing, and has addressed them in his written submissions. This appeal provides the only mechanism to the appellant to seek to remain lawfully in Australia, by seeking to have both the decision of the Federal Circuit Court and the Authority overturned, and by giving him a further chance to persuade a decision-maker at a merits level that he is entitled to the grant of a temporary protection visa.

22    Accordingly, leave will be granted to the appellant to rely on the amended notice of appeal dated 10 May 2018.

23    At the hearing of the appeal the appellant sought to add to ground 3 a second limb, so to speak, based on the decision of the Full Court in Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210. He sought to do so by adding the following text to the existing terms of ground 3 of the amended notice of appeal:

…and by failing to consider exercising its power to get information from the appellant.

24    Although I accept the appellant’s circumstances might weigh in favour of the grant of leave, I am not persuaded the additional aspect to ground 3 is sufficiently arguable to justify such a late amendment to the amended notice of appeal. Accordingly, I refuse leave to rely on this second limb of ground 3.

resolution of the appeal

Ground One

25    Both this ground and the second ground of appeal concern the terms of s 473DC and s 473DD of the Migration Act, which provide:

473DC 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.

473DD Considering new information in exceptional circumstances

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

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

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

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

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

26    These provisions must be read with what can now be described as the “primary rule” in s 473DB(1), which 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.

27    The term “new information”, rather than being defined in a dictionary or a separate provision, is defined in s 473DC(1). It is apparent, as the Federal Circuit Court noted, that there are two limbs to the definition. The first limb concerns a matter of historical fact: namely, whether the “documents or information” were or were not before the Minister or the Minister’s delegate when the decision under review was made. The second limb relates to a state of mind the Authority must form about the relevance of the documents or information to the fast track decision which it is required to make.

28    I note that s 473DD(b) (which I consider below) imposes an additional element not contained in the actual definition of “new information”. Section 473DD, it will be recalled, contains a prohibition on the consideration of new information, unless the preconditions in the section are met. Section 473DD(b)(i) requires that not only was the information not, as a matter of fact, before the Minister’s delegate, but that it “could not have been”. In other words the “could not have been” requirement is not part of the definition of “new information” but is part of the precondition to the Authority considering any such new information.

29    The issue raised by this ground of appeal, in terms, is anterior to any issue concerning the Authority’s approach to s 473DD. Rather, ground 1 centres on whether the Authority turned its mind at all to the photographs as potential “new information”.

30    As I have noted, it is not disputed that the appellant’s father was found by the Authority to be a “mid-level officer and a member of the Ba’ath Party under the Ba’athist regime” (see [38] of the Authority’s decision). The Authority did not accept the appellant’s father was perceived to have held a prominent or senior position in the military, nor that he was perceived to have had any association with the Ba’ath party beyond what was required of all members of the military at that time under the regime of Saddam Hussein. The Authority accepted that the role of the appellant’s father in the military and his past membership of the Ba’ath party “may have been known in his community in Baghdad, and in his area of origin in Basra, following the fall of the regime”.

31    The Authority also accepted, and found, that the appellant’s father and brother had been killed in 2008. Although expressing some doubt about the matter, the Authority concluded (at [46]) that it was appropriate in the circumstances to proceed on the basis that the appellant’s father and brother were killed in August 2008 “for reasons related to the applicant’s father’s former role in the military and the Ba’ath party under the Ba’athist regime”.

32    Although it made this finding, the Authority made it clear (at [45]) that it did not accept the appellant’s father was “perceived to have held a prominent position or any role in the Ba’ath party beyond that required at the time”.

33    The photographs in question were provided by email to the Authority, together with a submission, on 13 February 2017. The submission commenced by stating that the appellant was providing “new information” to the Authority, which had not been before the delegate. The submission itself said nothing about the photographs: they were simply attached. The first photograph was identified as “Figure 1 certificate of bravery during iraq-iran war”. The second was identified as:

Figure 2 bravery medals granted to the applicant’s father from Saddam Hussein during iraq-iran war, we think that the first medal on the left is bravery medal, it dates to the gulf war 2 era, the second in the middle is known as the mother of all battles medal, it was awarded to all troops who participated in the invasion of Kuwait and the subsequent battles the following years, and the third on the right is the baath party badge, identify the wearer as party member.

34    The third photograph is described, taking the text as it appears, as “Figure 3 applicant’s fathrer with another army officers”. The fourth photograph is described as “Figure 4 applicant father in the army during the 1980 war”. The fifth photograph is described as “Figure 5 applicant father as ‘first leutenant’”. The sixth photograph is described as “Figure 6 applicant’s father as second leutenant”.

35    The appellant contends that at [5] of its decision, the Authority sets out a description of the purported new information provided by the appellant and there is no reference to the photographic material in that description. That contention is plainly correct, and was recognised as such by the Federal Circuit Court. The appellant contends the Authority overlooked the photographs and made no determination at all whether they constituted new information so as to trigger the prohibition in s 473DD, and the Authority’s consideration of the two limbs in the exception to the prohibition in that provision. The appellant points to the Authority’s finding (at [35]) that the appellant had not provided any “evidence in support” of his claim that his father was well-known or held a “prominent position” in the Iraqi military”.

36    It can be accepted, as the appellant contends, that the purpose of providing photographs to the Authority was to provide such evidence. There is therefore some force to the appellant’s contention that the Authority’s finding at [35] tends to support the impression that the Authority had overlooked the photographs that had been provided.

37    I do not accept the Minister’s submission, aligned to the approach taken by the Federal Circuit Court, that the Authority’s reasons should be read as suggesting (by their omission of any reference to the photographs) that the Authority had formed a positive view that the photographs were not relevant to the fast track decision, and therefore were not within the definition of “new information” in s 473DC(1) of the Migration Act. There is simply no basis in the reasons of the Authority for such a conclusion.

38    The photographs were treated in the same way by the appellant’s agent as the other documents submitted at the same time. All the documents, including the photographs, were attached to the submissions made to the Authority, under cover of a general introductory statement that:

Note: we would like to state that the applicant is providing the IAA with new documents that was not provided before to the department, the applicant maintain he did not provide the following documents because he thought that he should only present documents that he was asked to produce by his migration agent, for some reason, for this reason, these documents were not included in the application for protection visa, these documents are attached to this email.

39    It is true that the submission itself did not address the photographs. This fact may explain why the Authority overlooked the photographs, but the existence of a possible explanation does not alter my conclusion that the correct finding to make is that they were overlooked.

40    It is telling that the list of information at [5] of the Authority’s reasons does not refer to the photographs. Also relevant is that, immediately after the list of information in [5], the Authority sets out at [6] its (correct) understanding of the import of s 473DD of the Act:

Section 473DD requires that the IAA must not consider any new information unless it is satisfied that there are exceptional circumstances to justify considering the new information.

41    The Authority then turns to consider each item in the list it has set out at [5], and to measure it against s 473DD. There is no reference at all to the photographs.

42    I consider it is more likely than not that, as the appellant submits, the Authority overlooked the photographs and did not consider them.

43    The Federal Circuit Court was in my opinion in error to dismiss this ground of review by concluding (at [67]) that it was open to the Authority to treat the photographs, as the Federal Circuit Court found it did, as not being relevant and therefore not being new information within s 473DC of the Act. That it may have been “open” to the Authority to take this course is not to the point: the Authority’s reasons do not demonstrate that it did, in fact, take this course. The reasons are silent about the photographs. They are silent about whether the photographs “may be relevant” to the fast track review. They are silent on the first limb of the definition of “new information” in s 473DC(1)(a). There is no basis in its reasons to find, or infer, that the Authority considered the photographs against the definition of “new information” in s 473DC of the Act. The better view is that it overlooked them, and that is what I find occurred.

44    The next and more difficult question is what is the legal effect, if any, on the Authority’s decision, of the Authority overlooking the photographs?

45    In oral argument, counsel for the appellant submitted this constituted a denial of procedural fairness to the appellant. He submitted that Subdiv C, Div 3 of Part 7AA is one aspect of the codified obligations of procedural fairness to which s 473DA refers. It is the statutory method, he submitted, by which the Act regulates the opportunity of an applicant to put further material before the Authority and so to be heard on the review.

46    I am not persuaded this is the appropriate analysis. Certainly, provisions such as s 473DE can be characterised as part of the codified obligations of procedural fairness. That is because the purpose of this provision is to ensure an applicant is on notice of material the Authority considers credible, relevant and significant and which may form a reason, or part of a reason, for affirming the fast track reviewable decision, and in that sense is information adverse to the interests of an applicant.

47    In contrast, ss 473DC and 473DD concern an anterior question: namely, what kind of information may be considered by the Authority in its review of a fast track reviewable decision. The role of these provisions was described in Plaintiff M174/2016 v Minister for Immigration and Border Protection and Another [2018] HCA 16; 353 ALR 600 at [22]:

Within Div 3, s 473DB sets out the primary requirement that, subject to the Part, the Authority is to review a fast track reviewable decision referred to it under s 473CA by considering the review material provided to the Authority under s 473CB without accepting or requesting new information and without interviewing the referred applicant. To that primary rule, Subdiv C of Div 3 admits of exceptions. The principal provisions of subdiv C providing for those exceptions are contained in ss 473DC, 473DD and 473DE. Close attention needs to be paid to each of those provisions and to their interrelationship.

48    And then at [27]:

Information contained in review material given to the Authority by the Secretary that was not before the Minister or delegate at the time of making the decision to refuse to grant the protection visa will become new information if and when the Authority considers that the information may be relevant. The Authority will not need to invoke s 473DC in order to receive that new information. However, given that the Authority’s obligation under s 473DB(1) to conduct its review by considering the review material is subject to Pt 7AA, the Authority will need to comply with s 473DD, and where applicable s 473DE, if the Authority is to take that new information into consideration.

49    In Plaintiff M174 at [17] the plurality described the function of the Authority in the following terms:

Notwithstanding the inability of the Authority to set aside a fast track reviewable decision and to substitute its own decision, the Authority 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 Authority 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.

50    Thus, where material or information has been submitted to the Authority, and has been overlooked, a more appropriate analysis might be to consider the Authority’s statutory task, described in s 473CC(1):

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

51    This provision is analogous in language and purpose to the duty in, for example, s 414(1), in relation to the Administrative Appeals Tribunal. That duty was considered in the Full Court’s decision in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1. At [48], the Full Court described the conduct of a “review” as a necessary condition on the powers of the Tribunal to make a decision. The Full Court referred to the explanation given by members of the High Court in Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; 209 CLR 597 (at [14], Gleeson CJ, [43], Gaudron and Gummow JJ (McHugh J agreeing at [63]), [149], Hayne J and [163], Callinan J) of the failure to afford an applicant the oral hearing required by the Act as a failure to perform the review. The Full Court then quoted the following extract from the reasons of Callinan J in Bhardwaj:

If one thing is abundantly clear, it is that the Tribunal must, if an application has properly been made as it was here, review the Minister’s decision. This means that the Tribunal must exercise the jurisdiction of reviewing the Minister’s decision: that is to say, it must make a decision on the application and any documents properly submitted by an applicant, with, as part of, or relevant to it. To fail, or refuse to receive and consider such a document, and to make a decision without regard to it, is a failure to exercise jurisdiction.

(footnotes omitted) (emphasis added)

52    Adapting the language from the plurality in Plaintiff M174, and noting the differences between the scheme under Part 7AA and the scheme of a “full” merits review process such as that considered in NABE and Bhardwaj, it is nevertheless the case that, in order to perform its statutory task of “review”, the Authority is obliged to turn its mind to whether the “exceptions” to the “primary rule” of how the review is to be conducted might apply. The “primary rule” is, as the High Court in M174 explained, that the Authority’s review is to be undertaken by considering the review material provided to the Authority under s 473CB without accepting or requesting new information and without interviewing the referred applicant.

53    The Authority may not have a duty to “get, request or accept” new information (s 473DC(2)), but in order to perform its statutory task of review, it is obliged to turn its mind to all of the material submitted to it, at least for the purpose of deciding whether the “primary rule” in s 473DB(1) applies, or whether there is “new information” placed before it, and if so, what should occur in relation to that information. If the Authority overlooks material or information submitted to it, then it disables itself from performing this task.

54    It is difficult to see this line of argument as flowing from the oral submissions on the first ground of appeal, which were emphasised in terms of a denial of procedural fairness to the appellant.

55    Nor (even if leave had been granted) could it have been captured by the proposed additional limb to the first ground: namely that the Authority failed to “consider exercising its power to get information” from the appellant. The Authority had been given the information (ie the photographs): it did not need to consider “getting” it.

56    What it did need to do, in order to perform its task of review, was to consider whether the exceptions to the “primary rule” were applicable to material before it, or whether the primary rule applied. This is, of course, what it did in relation to all of the items it set out at [5] of its reasons. Although it had no legal duty to accept the material submitted to it (see s 473DC(2)), in order to perform its review task it was required to consider how it would approach the review, in terms of the material submitted to it. It could not perform that statutory task if it overlooked material that had been submitted to it.

57    A jurisdictional error of this kind falls within ground 1 of the amended notice of appeal. It is also captured (albeit in reasonably general terms) by the written submissions of the appellant at [17]-[20], and [27]:

The photographic material was not referred to in the Tribunal’s discussion of purported new information provided by the appellant [AB360-361], leading to the conclusion it was overlooked.

No determination was made as to whether this component of the information provided was new information and therefore able to be considered by the IAA pursuant to the provisions of section 473DD of the Act.

This constituted a failure to comply with the Act and a failure to exercise jurisdiction in respect of the purported new information.

The role of the Applicant’s father in the Iraqi Army and whether he was ‘well known’ or not in that role, was in issue in the review undertaken by the Tribunal [AB367-8] and material to the decision made.

….

The correct conclusion is that the IAA overlooked the material, or otherwise failed to exercise jurisdiction, especially in circumstances where in respect of other material the IAA gave detailed express consideration including the drawing of a conclusion in respect of the degree of relevance of material.

58    Ground 1 is made out.

The Full Court’s decision in CLV16

59    At the hearing of the appeal, counsel informed the Court that the Full Court was scheduled to hand down a relevant decision on the operation of s 473DD a few days after the appeal hearing. Accordingly, the parties were granted leave to file supplementary submissions dealing with this decision. Each party did so.

60    The Full Court decision is Minister for Immigration and Border Protection v CLV16 [2018] FCAFC 80. The Full Court’s reasons for judgment in fact relate to two proceedings: an appeal in CLV16, and a matter in the Court’s original jurisdiction entitled AHT17 v Minister for Immigration and Border Protection & Anor. There are two sets of orders, and one set of joint reasons. At [2], the Full Court stated:

Common to both proceedings are two questions, namely:

•    whether, and in what circumstances, the Immigration Assessment Authority (the “Authority”) can receive submissions; and

•    whether, and in what circumstances, the Authority has the power to “vary or revoke” a decision once made.

61    Both cases concerned a situation where the Authority made a second review decision. It did so because it had decided it had the power to “re-open” its first and earlier decision, on the basis that it had failed to consider a submission given to the Authority at the time of the first decision but which was not taken into account. It would appear that the point of the applicant in AHT17 and the first respondent in CLV16 submitting the Authority had no power to do so was that they would otherwise have the benefit of a clear jurisdictional error (at least on ordinary principles), whereas if the Authority could “re-open” its decision, and vary or revoke it, so as to afford the procedural fairness denied by the first decision, they would be deprived of their remedies on judicial review.

62    It will be apparent from the way the questions in CLV16 are framed that the ratio of this decision is not relevant to the matters in the present appeal. Nevertheless, the Full Court does make some observations about Part 7AA, and ss 473DC and 473DD, which are relevant. The Full Court concluded the Authority could receive submissions, re-open its earlier decision and vary or revoke its earlier decision. At [50] and [54], the Full Court found that a submission could not be “new information” for the purposes of Part 7AA and accordingly s 473DC did not constrain the Authority in considering the submission it had earlier overlooked:

It is concluded that a “submission” which only addresses the information already made available for consideration by the Authority and which contains no additional factual information is neither:

•    a “document”; nor

•    “information”

for the purposes of the definition of “new information” as set forth in s 473DC.

...

The expression “new information” as defined in s 473DC(1), it is concluded, seeks to identify the sources whereby new factual material is sought to be placed before the Authority. To expose the Authority to the prospect of receiving an ever-changing or continually emerging factual account of the claims for protection being advanced would run counter to the legislative objective of “fast track” decision-making. But there remains no clearly expressed legislative intent to deny to a claimant the ability to place before the Authority – and to have the Authority in fact consider – a submission directed to an established pool of factual information.

63    The Full Court saw its conclusions as consistent with the explanation of “information” given by Gageler, Keane and Nettle JJ in M174 at [24]) that the term “information” was used in Part 7AA “in the ordinary sense of a communication of knowledge about some particular fact, subject or event”.

64    The remainder of the Full Court’s decision is concerned with the question whether the Authority can “re-open” its decision (on the basis that overlooking a submission may involve a jurisdictional error), and the effect of the High Court’s decision in Bhardwaj. It should be recalled that Bhardwaj involved a potential denial of procedural fairness in circumstances where the (then) Immigration Review Tribunal had reached a decision without considering a letter from the visa applicant informing the Tribunal he could not attend a scheduled review hearing date and requesting a later date.

65    The appellant submitted the decision in CLV16, especially at [69]:

demonstrates the correctness of the concession made by learned counsel for the First Respondent in this matter in respect of ground one; that concession being that if this court is of the view that the photographic material was a) overlooked (and therefore not considered) and b) was capable of being relevant (and therefore material), then jurisdictional error has occurred.

66    The appellant also submitted that the Full Court did not disapprove Bromberg J’s decision in CSR16 v Minister for Immigration and Border Protection [2018] FCA 474, but appeared to cite it with approval, and suggested this supported the appellant’s contention that Part 7AA “creates a designedly two-step process for the consideration of purported new information”, which the Authority did not follow in the appellant’s review.

67    I do not accept these submissions. As the Minister’s supplementary submissions pointed out, the difference between CLV16 and the present appeal is that in the present appeal the first and second grounds concern the treatment by the Authority of certain documents (the photographs) proffered as evidence, rather than a “submission” made on behalf of the appellant, as the Full Court in CLV16 explains the distinction. Therefore, although the reasoning in CLV16 restates and reaffirms the general proposition in Bhardwaj, that is not a proposition which assists the appellant as I do not consider that there has been any denial of procedural fairness to the appellant, as Part 7AA prescribes the content of any such obligation.

68    The Minister does accept that CLV16 has some relevance to the Minister’s contention on the appeal that even if the Authority overlooked the photographs, that overlooking involved no jurisdictional error because the effect of s 473DC(2) is that there was no duty to consider accepting the photographs.

69    Correctly, the Minister submits the Full Court in CLV16 found that s 473DC(2) imposed no duty to get or accept new information. At [47], the Full Court found that the absence of a duty did not affect the existence or exercise of a discretionary power to “get” or “accept” new information:

Notwithstanding the absence of any “duty to get … or accept, any new information”, s 473DC(2) does not expressly (or implicitly) preclude the Authority from exercising the discretionary power conferred in s 473DC(1) by the term “may” to “get any documents or information”. Indeed, s 473DC(1) expressly confers a power to “consider” any such document or information which “may be relevant”.

70    The Minister’s submissions appear to be critical of this passage, and of this reasoning. I respectfully agree with what the Full Court has said in these passages. The presence of s 473DC(2), read with s 473DC(1), does not affect the existence of the clear discretionary power conferred by s 473DC(1) but merely emphasises its discretionary nature and (perhaps) affects the relief that may be available.

71    I do not consider the Full Court’s decision in CLV16 advances or imperils the Minister’s submission that any overlooking by the Authority could not result in a jurisdictional error. CLV16 was dealing with quite different issues, and the reasons should not be taken out of their context.

72    Accordingly, the Full Court decision in CLV16 does not affect or alter the conclusions I have reached on ground 1, nor the reasoning I have relied on to reach those conclusions.

Ground Two

73    By this ground, the appellant contends that the Federal Circuit Court should have upheld the argument that the Authority had not applied the correct approach to its task under s 473DD of considering whether the exceptions to the prohibition imposed by that provision were made out.

74    I do not consider this ground is made out. As the Federal Circuit Court found in its reasons at [68]-[69] the Authority set out the terms of the prohibition in s 473DD, and did so by reference to both limbs of the exception contained in that provision. It is not the case, contrary to the appellant’s submissions, that the Authority saw the exceptions in s 473DD as “two separate and sequential requirements”. I accept the Minister’s submission that the description given by the Authority at [6] of its reasons was consistent with decisions of this Court that, for the exception to apply, both limbs of the exception must be satisfied: see BRA16 v Minister for Immigration and Border Protection [2018] FCA 127 at [26] (Gilmour J); AUH17 v Minister for Immigration and Border Protection [2018] FCA 388 at [32]-[33] (a decision of mine). It is, as the Minister submits, a consequence of the need to meet both limbs that if the Authority has made findings that it is not satisfied as to one limb, it may not be necessary (and I emphasise the word “may”) for it to go on and consider the second limb. I left this matter open in AUH17 at [34]-[35], as did the Full Court in CHF16 at [46]. Although as the Full Court implies in CHF16, it may sometimes be necessary to consider whether (for example) the information could have been provided to the Minister in order to come to a view about exceptional circumstances, these matters will be highly fact dependent.

75    The Authority made it clear in its reasons that it was not satisfied there were exceptional circumstances to justify considering any of the categories of new information put forward by the appellant and this was sufficient, taking into account the reasoning given by the Authority, for it to consider that the exception in s 473DD was not applicable.

76    The ground must fail.

Ground Three

77    Ground Three of the notice of appeal concerns the following finding by the Authority (at [91]):

Having regard to this information, I am satisfied that the applicant has relatives and tribal connections in Basra and that his relatives and members of his tribe would, if required, act as sponsors and provide assistance or other support to him in Basra on his return to Iraq.

78    As the appellant submitted, due to the reasoning adopted, the Minister’s delegate did not consider any question of the reasonableness of relocation for the appellant to Basra. This is worth noting because it means that prior to the Authority’s review, there was no initial decision-making on this matter, and no investigation by the delegate about it.

79    The Authority made its finding at [91], both parties accept, as a consequence of an earlier finding that it was satisfied (see [61] of its reasons) there was a real chance the appellant would face serious harm on the basis of his Shia faith if he returned to Baghdad. That finding was based on the country information before the Authority. However, having further considered the country information, the Authority made the following finding (at [70]):

Having carefully considered the information before me, while I accept that incidences of violence, including criminal violence, occur in the south of Iraq, I am not satisfied that there is a real chance of harm to the applicant on the basis of his Shia faith, his Shia name, his relationship to his deceased father who was a mid-level officer in the Iraqi military and member of the Ba’ath Party under the former Ba’athist regime, his brief past employment by Pepsi, his appearance, his failure to actively practise his Shia Muslim faith, or as a result of the security situation in the south of Iraq, including in Basra, Wasit, Qadisiyah, Missan, Thi Qar and Muthanna. I am therefore not satisfied that the real chance of serious harm to the applicant on this basis relates to all parts of Iraq.

80    That finding led the Authority to conclude that the appellant did not meet the requirements of the definition of refugee in s 5(H)(1) of the Migration Act, read with s 5(J)(1) of the Act, which sets out a number of components to the concept of a well-founded fear of persecution, including (at sub-paragraph (c)) that “the real chance of persecution relates to all areas of a receiving country”.

81    Apparently in reliance of that aspect of s 5(J)(1), the Authority found (at [75]) of its decision that it was not satisfied that:

…any combination of the applicant’s circumstances would combine to expose him to a real chance of harm in Basra, Wasit, Qadisiyah, Missan, Thi Qar or Muthanna provinces.

82    When the Authority turned to consider the criteria for complementary protection it adopted the finding it had made about the real risk of harm to the appellant in Baghdad (see [83]) of its reasons). It then turned to consider the terms of s 36(2B) of the Migration Act. That section provides:

(2B)    However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)    it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or

(b)    the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or

(c)    the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.

83    Referring to its earlier findings about the number of cities in which the appellant would not face a real chance of serious harm and noting that real chance and real risk involve the application of the same standard (citing Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; 210 FCR 505), the Authority considered whether it would be reasonable for the appellant to relocate to another area of Iraq where he did not face the risks he faced in Baghdad. From [86] onwards, the Authority examined the possibility of the appellant relocating to Basra. On the basis of the country information to which it referred, it noted that local authorities had increasingly introduced stringent entry and residency restrictions, including amongst other things “sponsorship requirements”. At [89], the Authority referred to the view of the UNHCR with apparent approval and, I infer, adopted the view there set out:

In UNHCR’s view, an internal relocation alternative would only be available in the exceptional circumstances where an individual can legally access and remain in the proposed area of relocation, would not be exposed to a new risk of serious harm there, and has close family links in the proposed area, with the family willing and able to support the individual.

84    The only fact-finding in the Authority’s decision, which purports to apply the approach endorsed by the UNHCR is what appears at [90] of the Authority’s reasons, where it states:

The applicant’s national identity card, issued in Baghdad, indicates that he was born in Basra, although the applicant says he left the province at a very young age and he spent most of his life in Baghdad. He claims that his father’s family and tribe come from Basra. Although he was not in regular contact with his father’s tribe, he said people from his father’s tribe used to visit his home in Baghdad when he was a child. He claimed that ‘his tribe, his uncles’ contributed to his travel costs when he moved to Syria in 2008. He saw his tribe and his father’s family at his father’s funeral and wake which was organised in Basra, where his father’s family came from, rather than in Baghdad, where his father died.

85    It was on the basis of the facts recited at [90], and no other facts, that the Authority made the finding it did at [91]. I accept that after these paragraphs there are further findings about whether the appellant could safely access Basra if he arrived at Basra Airport, but these appear after the Authority has concluded the appellant has sufficient family support to meet the stringent sponsorship requirements it has accepted on the basis of country information would be imposed on him if he sought to return to Basra.

86    While I do not accept the appellant’s submission that this finding should be characterised as legally unreasonable, I do consider it is capable of being characterised as irrational or illogical as those terms are explained in the judgment of Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [130]:

In the context of the Tribunal’s decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.

87    I accept the correct approach for a supervising court is to be “slow, although not unwilling” to find that the task of an administrative decision-maker miscarried in a jurisdictional sense for want of logic in its reasoning process, or for reasoning or findings which can be described as ones at which no rational or logical decision-maker could arrive.

88    These are not new legal principles. In Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321, Deane J said (at 367):

When the process of decision-making need not be and is not disclosed, there will be a discernible breach of such a duty if a decision of fact is unsupported by probative material. When the process of decision-making is disclosed, there will be a discernible breach of the duty if findings of fact upon which a decision is based are unsupported by probative material and if inferences of fact upon which such a decision is based cannot reasonably be drawn from such findings of fact.

89    One way in which reasoning in a decision may be said to be irrational or illogical, is if it is unsupported by probative evidence. That is because rational and logical reasoning, in order to form the requisite state of satisfaction required by provisions such as s 65 of the Migration Act, needs to be based not only on actual factual material or information, but on factual material or information which is probative of the finding or conclusion reached. That is, factual material or information which tends to make out, or support, the finding or conclusion reached. There must be a rational connection between the factual information or material and the finding or conclusion reached.

90    There is no doubt this kind of analysis by a supervising court involves a degree of evaluation, on which reasonable judicial minds might differ. So much is demonstrated by the divergence of opinion in SZMDS between Crennan and Bell JJ on the one hand and Gummow and Kiefel JJ on the other.

91    The appropriate level of caution, and the critical requirement for the supervising court to find a connection between the lapse or want of logic or rationality and the task to be performed by the decision-maker is emphasised by the Full Court in ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; 250 FCR 109 at [47]:

Subsequent authorities have established that, for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reason, “extreme” illogicality or irrationality must be shown “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions and against the framework of the inquiry being as to whether or not there has been jurisdictional error on the part of the Tribunal” (see Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 (SZRKT) at [148] per Robertson J; SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1 (SZOOR) at [84] per McKerracher J (with whom Reeves J agreed); and Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210 at [52] per Wigney J). Illogicality or irrationality in that extreme sense may be considered not only in relation to the end result, but also extends to fact finding which leads to the end result, albeit that, as Robertson J emphasised in SZRKT at [151], the overarching question is whether the decision was affected by jurisdictional error (see also the observations of Beech-Jones J in BKE v Office of Children’s Guardian [2015] NSWSC 523 at [113] and the cases referred to therein).

92    In other words, the supervising court must be persuaded that the state of satisfaction reached, or power as exercised, was not within the authority of the decision-maker under the statutory framework, including by reference to the nature, scope and purpose of the power or function conferred: see Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at [62] (Griffiths J).

93    It is important to recall, as the Full Court said in Minister for Immigration and Border Protection v DZU16 [2018] FCAFC 32 at [87] that:

We again repeat what we said in CRY16 at [66] – that we consider it to be significant that what is reasonable, in the sense of “practicable”, in terms of relocation must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality: SZATV at [24].

94    In other words, the question of whether return to a part of a person’s country of nationality is reasonable (and practicable) is a fact intensive exercise, looking at the reality “on the ground” for the person: see CSO15 v Minister for Immigration and Border Protection [2018] FCAFC 14 at [37]-[48].

95    I consider, even with a cautious approach, the illogicality of the Authority’s reasoning is clear on the face of its decision. The appellant was, at the time of the Authority’s decision, 30 years old. The Authority accepted his evidence that he had left Basra when he was a young child. There was no evidence he had lived there since, or knew the city in any way.

96    The only information the Authority identified about the appellant’s support in Basra was what assistance had been given to the appellant in 2008, when his uncles contributed to his travel costs when he moved to Syria, together with the fact that he saw his tribe and father’s family at his father’s funeral and wake in Basra. Those events occurred more than eight years before the Authority’s decision.

97    The Authority does not refer to any evidence, and there does not appear to have been any evidence before it, about which, if any, members of the appellant’s family still lived in Basra. The reference by the Authority in [90] to “he said people from his father’s tribe used to visit his home in Baghdad when he was a child” was not probative of the matter the Authority had to decide. As a statement it provides no factual information about where the appellant’s “tribe” came from when they visited his father’s home in Baghdad, and it certainly provides no indication of whether those people are still alive, let alone where they are or whether they are willing and able to support the appellant if he were returned to Basra.

98    There was no evidence of what family relationships existed, whether they were close or remote, acrimonious or convivial. There was no evidence whether his uncles, for example, were still alive and living in Basra. There was no evidence from which it could be inferred that any of the appellant’s family in Basra were willing and able to act as sponsors for him, or to provide him with any financial assistance. There was no evidence at all about the financial circumstances of any of his family living in Basra. In contrast, there was evidence that his father and brother had been dead for more than eight years, that his mother and two sisters lived in Baghdad and that he was the last remaining male member of his immediate family.

99    The findings of the Authority at [91] are nothing more than speculation, and are not based on any probative material at all. To that extent, it is appropriate to characterise them as irrational or illogical.

100    The jurisdictional error could have been characterised in a number of ways other than irrationality or illogicality: it could have been characterised as the making of a critical finding of fact without probative evidence: see Australian Postal Corporation v D’Rozario [2014] FCAFC 89; 222 FCR 303 at [15]-[16] (Besanko J); SZNKV v Minister for Immigration and Citizenship [2010] FCA 56; 118 ALD 232 at [38] (Kenny J). Alternatively, it might be said that the Authority had drawn an inference (that it was safe for the appellant to relocate to Basra) from material which was not reasonably capable of supporting that inference: see Bond at 367 (Deane J), referred to by Gleeson CJ in Minister for Immigration and Multicultural Affairs v Rajamanikkam [2002] HCA 32; 210 CLR 222 at [25]; also Bruce v Cole (1998) 45 NSWLR 163 at 187–189 (Spigelman CJ). The Authority’s reasons might also have been characterised as revealing a misunderstanding of the legal criteria (concerning relocation) to be applied and so a constructive failure to exercise the jurisdiction conferred on it: see Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; 78 CLR 353 at 360, Dixon J; and an explanation of this by Basten JA in Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208; 3 DDCR 1 at [202].

101    Whether the error could have been characterised as a legally unreasonable exercise of power (see Stretton at [10]-[12] (Allsop CJ), is a question I prefer to reserve for closer consideration in an appropriate case. The question of how the characterisation of legal unreasonableness fits with the formation of a state of satisfaction, rather than with the exercise of a discretionary power, is an important one. Minister for Immigration and Citizenship v Li [2013] HCA 18, 249 CLR 332, and Stretton, both concerned the latter not the former.

102    The finding of the Authority at [91] was material, indeed critical, to its conclusion on the review. Having found the appellant faced a real risk of significant harm if he were to return to Baghdad, the only basis for not forming a state of satisfaction that the appellant met the complementary protection criteria was the finding that it was reasonable for him to relocate to Basra. The Authority did not consider any of the other cities it had listed as potential locations: it only considered Basra. It reached its conclusions only by reference to evidence which could not support that finding, lacking any logical or rational connection to the reasonableness and practicability of the situation which would face the appellant on any return to Basra. That is the characterisation of the jurisdictional error in the current circumstances which I consider is the most appropriate.

103    Ground 3 succeeds.

Conclusion

104    I consider the appeal should be allowed on the basis of grounds one and three in the amended notice of appeal. Even if ground one, contrary to my conclusions, did not encompass the jurisdictional error in the way I have identified it, then I would nevertheless have allowed the appeal on the basis of ground three alone.

105    There is no basis in the material for anything but the usual order as to costs. The Court’s usual practice is to fix costs by way of a lump sum and the parties will be directed to agree a lump sum if possible, failing that the matter will be referred to a Registrar for the fixing of a lump sum.

Associate:

Dated:    14 June 2016