FEDERAL COURT OF AUSTRALIA

BVC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 565

ORDERS

THE COURT ORDERS THAT:

1.    The appellant be granted leave to amend his original notice of appeal.

2.    The appeal be dismissed.

3.    The appellant pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

WIGNEY J:

1    This appeal concerns the operation of the rather obscure and clumsy provisions of Div 3 of Pt 7AA of the Migration Act 1958 (Cth) which apply to the review of so-called “fast track reviewable decisions” by the Immigration Assessment Authority. If the aim of the legislature in enacting Pt 7AA was, as suggested by s 473BA of the Migration Act, to provide for a mechanism of limited review in respect of such decisions which is, amongst other things, “efficient” and “quick”, but nonetheless fair, the opacity and perverse operation of some of the provisions appears to have largely foiled that objective.

2    The appellant, a citizen of Iran, arrived in Australia in June 2013 in circumstances which made him an “unauthorised maritime arrival” for the purposes of the Migration Act. Because he was deemed to be an unauthorised maritime arrival, he was not able to validly apply for a visa in Australia by reason of subs 46A(1) of the Migration Act, though the Minister for Home Affairs eventually determined, pursuant to subs 46A(2), that subs 46A(1) did not apply to the appellant. That allowed the appellant to apply for a protection visa under s 36 of the Migration Act, which he in due course did in April 2017. The result of having passed through the s 46A gateway was that the appellant was taken to be a “fast track applicant” for the purposes of the Migration Act. That in turn meant that if his protection visa application was refused by the Minister, as it in due course was, that “fast track reviewable decision” was not reviewable by the Administrative Appeals Tribunal, but was instead required by s 473CA of the Migration Act to be referred to the Authority.

3    The Authority reviewed the decision to refuse the appellant’s protection visa application as it was required to do by s 473CC of the Migration Act. In conducting that review, the Authority was required to apply the provisions of Div 3 of Pt 7AA of the Migration Act. As will be seen, the main issue raised by this appeal is whether it did so. In any event, on 22 October 2018, the Authority affirmed the decision of the Minister, by his delegate, to refuse the appellant’s application for a protection visa.

4    The appellant then applied to the Federal Circuit Court of Australia, pursuant to s 476 of the Migration Act, for an order quashing the Authority’s decision and for a writ of mandamus directed to the Authority requiring it to “determine the [appellant’s] application according to law”. The appellant claimed that the Authority had acted without jurisdiction, or had failed to validly exercise its jurisdiction. Those contentions were rejected by the primary judge in the Circuit Court and the appellant’s application was refused.

5    The appellant’s appeal to this Court raises two issues about the Authority’s conduct of the review of the refusal of the appellant’s application for a protection visa. Before addressing those issues, it is necessary to provide some further detail concerning the nature of the claims that provided the basis for the appellant’s protection visa application, the manner in which the Minister’s delegate dealt with those claims in refusing the application, and the manner in which the Authority dealt with the claims in its review.

The appellant’s claims and the delegate’s decision

6    The essential basis upon which the appellant claimed that Australia owed him protection obligations in terms of subss 36(2)(a) and (aa) of the Migration Act was that he feared that he would be persecuted if returned to Iran, or that there was a real risk that he would suffer significant harm in Iran, because he was not a practising Muslim and did not observe or comply with the norms or behaviour that would be expected of a practising Muslim in Iran. He claimed that because he did not appear or act like a practising Muslim he was likely to be persecuted or harmed by members of the “Basij” or “morality police” or other similar organisations associated with the Islamic regime in Iran. He claimed that he would be arrested, imprisoned and executed as an apostate if returned to Iran.

7    The appellant relied on two particular incidents that he claimed had occurred before he left Iran to demonstrate what was likely to happen to him if he was returned to Iran.

8    The first incident, which was referred to by the decision-makers as the “dress code incident”, was an incident in which the appellant came to the attention of the morality police because he was seen to be sporting a “spiked up” haircut and wearing clothes that did not comply with Iran’s conservative dress code. He claimed that the morality police harassed him on this occasion and that, when he resisted, he was hit on the hand with a baton. That resulted in a fracture to his figure which required surgery. That surgery left him with a scar on his right hand.

9    The second incident, which was referred to as the “Ramadan incident”, occurred during Ramadan, a period during which practising Muslims are required to fast during the daylight hours. Members of the Basij confronted the appellant in the street when he was observed drinking water. The appellant said that he told the Basij that he had a medical condition which required him to drink a lot of water. When the Basij nonetheless continued to harass him, he told them that he was not a practising Muslim. That led to him being beaten, arrested and detained overnight. The appellant claimed that he was raped during that detention, that the Basij filmed that rape, and subsequently threatened to release that film.

10    The Minister’s delegate did not accept that the appellant’s claims were credible and found that the appellant did not face a real chance of serious harm in Iran either on the basis that he was not a practising Muslim or on the basis of his appearance.

11    It is unnecessary, for the purposes of addressing the issues raised by the appeal, to consider the delegate’s reasons for rejecting the appellant’s claims concerning the so-called Ramadan incident. It suffices to say that the delegate found that the appellant’s claims concerning that incident were “illogical, farfetched and lacking plausible basis” and that his evidence that he had been detained and raped “appear[ed] to have been fabricated” for the purpose of strengthening his visa application.

12    It is, however, necessary to give more detailed consideration to the way the delegate addressed the so-called dress code incident. That is because the appellant’s grounds for challenging the Authority’s decision hinge to a considerable extent on what occurred during the appellant’s interview by the delegate when he was giving evidence concerning this incident.

13    The delegate’s reasons note that during the interview it was “put to the [appellant] that there was information before the Department to indicate that he was in a fist fight on the Gold Coast, in which he sustained injuries to the right hand”; to which the appellant responded that while he “acknowledged” that some of the scarring related to the Gold Coast incident, some of the scarring “pre-dated” it. The transcript of the interview, which was in due course provided to the Authority, records the exchange between the delegate and the appellant in relation to this issue as follows:

Case officer: In terms of the injury of your hand there, I’m also aware of the fact that you not too long ago were in a fist fight on Cavill Avenue on the Gold Coast is it possible that that is an injury from that?

Interpreter: That’s the scar that you’re talking about?

[Appellant]: This from a long time ago.

Case officer: They look like they’re quite similar scars. They both looked quite recent.

Interpreter: I have the photos of the scar were sustained. You can notice this was a scar from the time that precedes that night, that fist fight.

….

Case officer: I’ll tell you what [appellant], rather than, unless you have it right there, you can submit that photograph at a later time….

14    What appears to have occurred during this exchange is that, when the delegate suggested that the injury to the appellant’s hand may have been the result of a recent fist fight in Australia, the appellant showed the delegate scars on his hand and indicated that one of them was “from a long time ago”. He was obviously suggesting that the scar he was referring to was the one that resulted from the dress code incident. When the delegate indicated that both the scars “look quite recent”, the appellant showed the delegate a photograph. The delegate then indicated that the appellant could submit that photograph at a later time.

15    Evidence adduced by the appellant in the Circuit Court indicated that the photograph that the appellant showed to the delegate was in fact a digital image that was stored on his phone. That explains why a print of the photograph was not given to the delegate at that time. It was common ground in the Circuit Court that the appellant did not subsequently submit a print of the photograph after the interview as he had been invited by the delegate to do.

16    The delegate’s reasons did not refer to the fact that the appellant had shown the delegate a photograph or digital image during the course of the interview. The delegate did note that the appellant had “acknowledged that some of the scarring related to the recent altercation on the Gold Coast” but that he had “claimed that some of it pre-dated this incident”. A fair reading of the interview transcript reveals, however, that the appellant not only said that some of the scarring on his hand pre-dated the fight on the Gold Coast; he also showed the delegate the scar on his hand which he said was caused by the dress code incident, showed the delegate a photograph apparently taken on the night of the Gold Coast fight, and pointed out to the delegate the scarring depicted in the photograph which appeared to pre-date the Gold Coast fight. It is tolerably clear that the appellant claimed that the photograph assisted or corroborated his claims concerning the dress code incident and effectively put paid to any suggestion that the scarring on his hand which he claimed was caused by the dress code incident was the result of the Gold Coast fight.

17    The delegate nevertheless rejected the appellant’s claim that he was assaulted during the dress code incident. The delegate accepted that the appellant may have been approached and spoken to for contravening dress standards, but ultimately found that the claim that he was physically assaulted was “disproportionate and farfetched”. It is not entirely clear why that was so, particularly given that the delegate referred to information from the Department of Foreign Affairs and Trade which appeared to acknowledge that there had been incidents of harassment of men for violating the dress code in Iran, albeit that those incidents were likely to have been the result of “either over-zealous enforcement by individual security authorities in particular locations (particularly outside of major cities), or because the individual has come to the attention of authorities for separate activities, particularly political activism”.

18    The delegate also did not accept that the scarring on the appellant’s hand assisted his case. The delegate reasoned as follows in that regard:

Irrespective of the concerns raised at interview regarding the cause of scarring to the [appellant’s] right knuckles, I note that scarring in and of itself does not serve as evidence that the claimed assault occurred, and given my finding that the circumstances appear farfetched, I am not satisfied that the scarring was sustained in the manner described.

The Authority’s review of the delegate’s decision

19    Part 7AA of the Migration Act applied to the delegate’s decision to refuse the appellant’s protection visa application. That is because, as was noted at the outset, the appellant arrived in Australia as an “unauthorised maritime arrival” between 13 August 2012 and 1 January 2014 and had been given a written notice by the Minister under subs 46A(2) of the Migration Act. He was therefore a “fast track applicant” as defined in s 5 of the Migration Act. He was also a “fast track review applicant” because he was not an “excluded fast track review applicant” as those expressions are defined in s 5. The decision to refuse the appellant’s protection visa application was a “fast track decision”, as defined in s 5, and a “fast track reviewable decision” as defined in s 473BB of the Migration Act.

20    Because it was a “fast track decision”, the decision to refuse the appellant’s protection visa application was not a “Part 7–reviewable decision” and was therefore not reviewable by the Tribunal. It was instead referred to the Authority as required by s 473CA of the Migration Act.

The statutory scheme in relation to reviews conducted by the Authority

21    Section 473CB provides that the Secretary of the Department must give the Authority certain material, which is referred to as the “review material”, in respect of each fast track reviewable decision which is referred to the Authority under s 473CA. The review material includes, in summary, the reasons of the decision-maker, the “material provided by the referred applicant” to the decision-maker, and “any other material that is in the Secretary’s possession or control and is considered by the Secretary … to be relevant to the review”.

22    Division 3 of Part 7AA deals with the manner in which reviews are to be conducted by the Authority. Section 473DA, which is in Div 3, provides as follows:

473DA Exhaustive statement of the natural justice hearing rule

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

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

23    Section 473DB compels the Authority to undertake its review “on the papers”. That section provides as follows:

473DB Immigration Assessment Authority to review decisions on the papers

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

(a)     without accepting or requesting new information; and

(b)     without interviewing the referred applicant.

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

24    The ordinary position, therefore, is that the Authority is to review the decision by considering the “review material” and is not to accept or request any “new information” or interview the referred applicant. There are, however, provisions that permit “new information” to be received or considered by the Authority in limited circumstances.

25    Section 473DC provides as follows:

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.

26    Section 473DD, however, places a limitation on the use of any “new information” (as defined in subs 473DC(1)) unless certain conditions are satisfied. It provides as follows:

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.

27    Section 473DE provides that certain new information must be given to the referred applicant and s 473DF deals with the situation where a referred applicant is invited to give new information, or to give comments on new information, pursuant to s 473DC and s 473DE respectively.

The Authority’s decision

28    Due to the operation of subs 473DB(1) of the Migration Act, the appellant did not appear before the Authority to present evidence or advance arguments. Nor is there any indication, in the Authority’s reasons or otherwise, that the Authority exercised its discretion to obtain any new information, or even considered whether it should exercise that discretion.

29    Like the delegate, the Authority gave separate consideration to the so-called Ramadan and dress code incidents. Like the delegate, the Authority was not satisfied that either of those incidents in fact occurred.

30    It is again unnecessary, for the purposes of this appeal, to give any detailed consideration to the Authority’s reasons for rejecting the appellant’s claims concerning the Ramadan incident. It suffices to say that the Authority referred to what it considered to be “significant credibility issues surrounding many key elements of this claimed incident”: Decision and Reasons of the Authority dated 22 October 2018 at [18]. Those credibility issues included apparent inconsistencies between what the appellant said when he was first interviewed by an officer of the Department shortly after his arrival in Australia as compared with what he told the delegate (Reasons at [10] and [11]), and certain aspects of the appellant’s version of events which the Authority considered to be “surprising” and possessing “no plausible explanation”: Reasons at [13]-[16].

31    The Authority’s reasons for finding that the dress code incident did not occur are recorded in paragraphs 20 and 21 of the Reasons. It is necessary to set those paragraphs out in their entirety to fully appreciate the appellant’s arguments on appeal.

Moreover, the [appellant] has claimed at PV interview that this event took place when he was 17 to 18 years of age (estimated to be in or around 2005 or 2006), whilst at Arrival Interview, he claimed the event took place ‘last summer’ (the Arrival Interview was 27 June 2013). This is a significant discrepancy, even considering estimations of time frames. The [appellant] claimed a scar on his right hand was the result of this incident. The delegate advised the [appellant] that he was aware that the [appellant] had recently been involved in a fist fight on the Gold Coast. He asked the [appellant] whether his injury was the result of this. The [appellant] showed the delegate his scar on his right hand and a photograph, seemingly in an attempt to distinguish between the claimed older scar from the Dress code incident and that which was sustained more recently, during the fist fight. I accept he has such a scar. The [appellant] has not submitted any other evidence to the delegate or to the IAA to substantiate his claim that he has two different scars or that this scar was caused by the injury he claims was sustained by the morality police.

I note the available country information, which confirms the trend of the morality police turning their attention towards dress code and hair style and at certain periods, cracking down on individuals for non-adherence to the expected dress codes. It is not implausible that the [appellant] may have, on occasion, not follow the strict dress code imposed by the Iranian authorities in their enforcement of religious ideals, and may have even faced low level harassment on occasion. However, I am not satisfied that the morality police assaulted the [appellant]. I do not accept that the Dress code incident occurred.

32    A number of points may be made concerning the findings and reasoning by the Authority in these paragraphs of the Reasons.

33    First, it is clear that the Authority had been provided with and had considered the transcript of the interview between the delegate and the appellant.

34    Second, the Authority’s finding that there was a “significant discrepancy” between what the appellant said concerning the timing of the dress code incident at the arrival interview and at the interview with the delegate would appear to be erroneous. The error appears to be the product of a misreading of the transcript of the appellant’s interview with the delegate. The appellant did not say, at that interview, that the dress code incident occurred when he was 17 to 18 years of age. What he did say at that interview was that he was 17 to 18 years of age when he first had issues with the police. He then appeared to suggest that it was only after being stopped by the morality police two or three times that someone in his position may be fined or required to give an undertaking. He said that it was at that point that the police could easily “beat you up”. He then referred to the dress code incident: the specific occasion that he was hit by the baton and his finger was broken. He did not say exactly when that incident occurred.

35    Third, it is abundantly clear that the Authority was aware that the appellant had shown the delegate the scar on his hand and also a photograph of his hand which was taken after the Gold Coast fist fight. It is equally clear that the Authority was aware that the appellant had shown the delegate the photograph for the purpose of supporting his claim that one of the scars on his hand was the result of the dress code incident and was distinguishable from the injuries or scars that he suffered as a result of the fight on the Gold Coast. The Authority must have gleaned this information from the transcript of the appellant’s interview by the delegate.

36    Fourth, there could be no doubt that the Authority did not have before it the photograph that the appellant showed the delegate. That is effectively common ground. As the evidence before the Circuit Court revealed, the reason that the Authority did not have the photograph was because the appellant in fact only showed the delegate a digital image of the photograph which was stored on his mobile phone. The appellant did not have a print of the photograph and did not subsequently provide any such print to the delegate. As a result, the “review material” did not include any physical copy of the image or photograph.

37    Fifth, the Authority says nothing about the fact that it did not have the photograph before it. There is nothing in the Authority’s reasons to suggest that it turned its mind to the question of why it did not have the photograph. It is not clear from the transcript itself, and therefore may not have been clear to the Authority, that the reason there was no photograph in the review material was because the appellant had only shown the delegate a digital image on his phone. In any event, there is nothing to indicate that the Authority queried why the review material that was before it did not include the photograph. Nor is there any indication whatsoever that the Authority turned its mind to whether it could or should exercise its discretion under s 473DC of the Migration Act to get a print of the photograph or a copy of it. The question whether that discretion could and should have been exercised is addressed later. It turns on whether a print of the photograph could be considered to be “new information” for the purposes of s 473DC.

38    Sixth, there are some indications that the Authority misunderstood a critical aspect of the nature of the review it was undertaking. That is apparent from the Authority’s statement that the appellant had not submitted “any other evidence to … the [Authority] to substantiate his claim that he has two different scars …”. A “referred applicant” in the appellant’s position had no right or entitlement to submit any evidence to the Authority. The Authority may invite a referred applicant to give “new information” pursuant to s 473DC, but even then the Authority must not consider any information provided in response to that invitation unless satisfied of the matters referred to in s 473DD of the Migration Act. Otherwise the Authority’s review is “on the papers”; that is, confined to a consideration of the review material.

39    Seventh, while it appeared that the Authority was sceptical about the appellant’s evidence concerning the scars on his hand, the Authority made no finding of fact in relation to that issue. The Authority’s scepticism is first revealed by its use of the word “seemingly” in describing the appellant’s apparent purpose in showing the delegate the image on his phone; that is, to “distinguish between the claimed older scar from the Dress code incident and that which was sustained more recently, during the fist fight”. The Authority then states: “I accept he has such a scar”. While it is somewhat unclear, that would appear to be a reference to the scar sustained during the recent fist fight. The Authority then appears to express doubt about whether the appellant in fact has two scars, because reference is made to the fact that the appellant had not submitted “any other evidence” to either the delegate or the Authority to “substantiate” that claim, or the claim that the older scar was the result of the dress code incident. The Authority does not, however, go on to indicate whether it did or did not accept the appellant’s claim that he had two scars, one of which was an older one not incurred during the Gold Coast fist fight.

40    Eighth, the Authority ultimately states that it was not satisfied that the appellant was assaulted by the morality police or that the so-called dress code incident occurred. It is, however, somewhat unclear why that was the case. The Authority’s reasoning in relation to that finding is at best scant and somewhat unpersuasive. The Authority does not link its non-satisfaction back to what it considered to be the “significant discrepancy” between what the appellant said about the timing of the incident in the arrival interview and what he said before the delegate. Even if it did, as noted earlier, there was in fact no such discrepancy because the appellant did not, as the Authority suggested, tell the delegate that the incident occurred when he was 17 to 18 years of age. Nor does the Authority suggest that the appellant was not a credible witness, or that his claims and evidence concerning the incident were in any way implausible or lacked credibility.

41    The Authority’s finding that it was not satisfied that the dress code incident occurred appears to be based largely on country information that was before it. The Authority accepted that it was not implausible that the appellant may on occasion not have followed the strict dress code imposed by the Iranian authorities and that this may have resulted in “low level harassment on occasion”: Reasons at [21]. The Authority appears, however, to have been persuaded by the country information that the appellant was unlikely to suffer any serious harassment or harm as a result of dress code violations because instances of serious harassment for dress code violations generally occurred outside major cities. The appellant resided in Tehran. It seems to be implicit in the Authority’s reasons that it therefore found the appellant’s account of the dress code incident to be implausible, though it does not expressly say as much: Reasons at [32]-[33].

42    Ultimately the Authority concluded that the appellant may have suffered low level harassment by the morality police by reason of his non-compliance with the strict dress code in Iran, or his hairstyle. Critically, however, the Authority was not satisfied that any harassment that the appellant may face on return to Iran as a result of his dress or hairstyle would amount to serious harm: Reasons at [34]. It therefore was not satisfied that the appellant faced a real chance of serious harm on that basis.

43    The Authority was also not satisfied that the appellant faced a “real chance of coming to the adverse attention of the Iranian authorities on return to Iran, for reasons of his rejection of Islam and non-adherence to a religion”: Reasons at [31]. Given the fairly narrow grounds that were agitated both in the Circuit Court and on appeal, it is unnecessary to give any detailed consideration to the Authority’s findings and reasoning that supported this conclusion.

44    The Authority accordingly found that the appellant did not meet the criteria in subs 36(2)(a) of the Migration Act: Reasons at [35]. The Authority also found, for essentially the same reasons, that the appellant did not meet the criteria in subs 36(2)(aa) of the Migration Act: Reasons at [38]-[40].

Proceedings in the Circuit Court

45    The appellant’s application to the Circuit Court contained three grounds.

46    The first ground was that the Authority “acted without jurisdiction by acting unreasonably”. Four particulars of the alleged unreasonableness were provided. Two of them were either not pressed before the primary judge, or the findings made in respect of them are not the subject of the appeal. The two particulars that are relevant to the appeal are: first, the failure of the Authority to “request the photograph of the [appellant’s] scarring under s 473DC”; and second, the Authority’s failure to “independently assess the photograph of the [appellant’s] scarring”.

47    The second ground of appeal was that the jurisdiction of the Authority was “vitiated by reason of the failure of the Secretary to forward documents to the [Authority] in regard to the fist fight on the Gold Coast, including photographs”. This ground appeared to be primarily directed at an alleged failure on the part of the Secretary to comply with s 473CB of the Migration Act on the basis that the image or photograph shown to the delegate by the appellant during the interview was subsequently not given to the Authority.

48    The third ground, which involved an allegation that the Authority did not consider certain “integers” of the appellant’s claim, was rejected by the primary judge and is not the subject of the appeal.

The s 473DC ground

49    The primary judge noted that the allegation that the Authority had failed to request the photograph pursuant to s 473DC was “not persisted with because the section talks about the IAA receiving new material”: Judgment at [27] (judgment name redacted as per BVC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCA 586). His Honour concluded that “[t]his [the photograph] was not new material” but rather was “material that was before the Delegate”: Judgment at [27].

50    The appellant did not dispute that the allegation of unreasonableness on the basis of the failure to request the photograph under s 473DC of the Migration Act was not pressed before the primary judge. As will be seen, however, the appellant nevertheless sought leave to raise this argument on appeal, essentially on the basis he was wrong to concede that the photograph was not “new information” for the purposes of s 473DC. The primary judge did not separately address the appellant’s contention that the Authority acted unreasonably in not independently assessing the photograph.

The s 473CB ground

51    The primary judge rejected the appellant’s ground concerning the Secretary’s failure to comply with s 473CB of the Migration Act on the basis that the photograph was not in the Secretary’s possession or control. His Honour found, in that regard (at Judgment [31]), that:

It was not a photograph that the Secretary had, or that the Delegate had, or that was there in the material. It was a photograph, as has now become apparent, on the phone of the [appellant], and the [appellant] did nothing to ensure that the Delegate or the Department had a copy of it.

52    The primary judge appears to have accepted that subs 473CB(1)(b) of the Migration Act “could not be complied with”, but reasoned that the fault in that regard lay with the appellant, not the Secretary or the Delegate: Judgment at [32]. That was because the appellant did not give the delegate a copy of the photograph. His Honour found (Judgment at [33]):

It does seem to me that this was a matter that was within the power of the [appellant] to ensure happen. He was asked to do so, and he simply did not do so. It is somewhat unsatisfactory but, it is, it would seem to me, totally in the hands of the [appellant]. Therefore, I cannot see that there has been any jurisdictional error displayed by grounds 1 and the alternative ground 2.

53    Despite finding that there was no jurisdictional error arising from the fact that there had been non-compliance with s 473CB, the primary judge went on to consider the question of the materiality of that non-compliance. His Honour referred to Minister for Immigration and Border Protection v SZMTA (2019) 274 CLR 421 and stated that the question was whether “compliance could realistically have resulted in a different outcome”: Judgment at [34]. His Honour answered that question in the negative. His Honour referred to the Authority’s finding that the appellant had not submitted any other evidence to the delegate or the Authority to “substantiate his claim that he has two different scars or that this scar was caused by the injury he claims was sustained by the morality police” and then reasoned as follows (Judgment at [36]-[37]):

That is all this photograph could have gone to, as to whether he did have the two different scars, given at different times. Whether it does that or whether it does not, is really a matter for an assessor of fact, but it seems to me that the real question is not whether there were scars given at different times. It was whether that photograph was sufficient evidence to corroborate a claim that the [appellant] makes that he sustained an injury by the morality police that occurred because he wore western clothing. That is the materiality.

This particular photograph, in my view, could never have gotten to the point where it could realistically have resulted in a different outcome. So that is just another aspect to grounds 1 and 2 that fortified my conviction that there has been no jurisdictional error illustrated by those two grounds.

54    It should perhaps be noted, in this context, that a print of the photograph was in evidence before the primary judge. While the precise basis upon which his Honour concluded that the photograph could not “realistically have resulted in a different outcome” is somewhat unclear, the conclusion appears to have been based, at least in part, on his Honour’s consideration of the photograph.

Grounds of appeal and submissions

55    The appellant applied for leave to amend his original notice of appeal. The Minister opposed leave being granted on the basis that the appellant’s second ground of appeal, which alleged that the Authority unreasonably failed to consider exercising its discretion to get new information pursuant to s 473DC, was not advanced in the Circuit Court.

56    The appellant’s grounds of review in the Circuit Court did include a ground based on the failure of the Authority to exercise its discretion under s 473DC. It would appear, however, that the appellant effectively abandoned that ground on the basis of an apparent acceptance that the Authority could not have exercised the discretion to get the photograph because it was not “new information”. The appellant sought to effectively re-agitate that ground, along with an allegation that the Authority should have exercised the s 473DC discretion to get new information which explained the scarring on his hand.

57    The Minister did not contend that he would be prejudiced in any way if the appellant was permitted to raise the appeal ground concerning s 473DC. It does not follow, however, that leave should be granted. This Court should not too readily grant leave to raise arguments that were not agitated in the Circuit Court because that would essentially be contrary to the legislative scheme under the Migration Act which limits the Court’s original jurisdiction in relation to migration decisions: AAM15 v Minister for Immigration and Border Protection (2015) 231 FCR 452; FCA 804 at [14].

58    Despite that principle, this is an appropriate case for the grant of leave. The appellant’s argument concerning s 473DC was, at least to a certain extent, sought to be agitated in the Circuit Court. It is perhaps not difficult to understand why the appellant effectively abandoned that ground in the Circuit Court. It is a rather obscure provision that raised complex and difficult issues in the circumstances of this case. The appellant now effectively seeks to put the argument in a slightly different way. His arguments are purely legal in nature and do not involve any particular evidentiary issues that could have been, but were not, dealt with in the Circuit Court. The Minister had effectively already responded to the appellant’s new arguments in his written submissions.

59    The appellant’s grounds of review, as ultimately settled in his amended notice of appeal, were as follows (as drafted, excluding mark-up):

1.    The IAA acted without jurisdiction by acting unreasonably in that it:

a.    Failed to consider to, or request new information of the Appellant’s scarring by way of explanation of it (or the photographs of it), in particular placing the scar (or the photographs of it) in proper context, under s 473DC,

b.    Failed to get the photograph of the Appellant’s scarring under s 473DC.

2.    In the alternative, the jurisdiction of the IAA was officiated by reason of the failure of the Secretary to forward documents to the IAA including photographs of the Appellant’s scarring under s 473CB.

60    It is convenient to deal with the appeal ground concerning s 473CB before addressing the ground based on the failure to exercise, or consider exercising, the discretion under s 473DC of the Migration Act. Consideration will then be given to the question of the materiality of any failure to comply with either of those provisions.

Was there any non-compliance with s 473CB?

61    A failure by the Secretary to comply with subs 473CB(1) may result in or establish a jurisdictional error on the part of the Authority as it may prevent the Authority from conducting the “review” contemplated by subs 473CB(1)(b) of the Migration Act: EMJ17 v Minister for Immigration and Border Protection [2018] FCA 1462 at [41] point (5); EVS17 v Minister for Immigration and Border Protection (2019) 268 FCR 99; FCAFC 20. It is immaterial who may be to blame for the non-compliance or breach: EMJ17 at [41] point (5).

62    It is manifestly apparent that the review of fast track reviewable decisions which is envisaged by Pt 7AA is a review “on the papers”; meaning the “review material” specified in subs 473CB(1). That includes “material provided by the referred applicant to the person making the decision before the decision was made”: subs 473CB(1)(b). The alleged breach of subs 473CB(1) in this case is that the photograph which the appellant showed to the delegate during the interview was not given to the Authority. The Minister conceded that the photograph was not given to the Authority but contended that there was nevertheless no breach of subs 473CB(1) of the Act. The question whether there was, in the circumstances, a breach of subs 473CB(1) appears to hinge on the answer to three questions: first, was the digital image that the appellant showed to the delegate during the interview “material”; second, if so, was it “provided” to the delegate; and third, does it matter that a copy of the image was not in the Secretary’s possession or control at the time of the Secretary’s purported compliance with subs 473CB(1)?

Was the digital image “material” for the purposes of subs 473CB(1)(b)?

63    The word “material” is somewhat of a linguistic chameleon. Its meaning will very much depend on the context in which it is used. The Macquarie Dictionary contains no less than 15 different definitions, ranging from “the substance or substances of which a thing is made or composed” to “of or relating to matter, as distinguished from form”. One of the definitions which may have some relevance is “information, ideas, or the like on which a report, thesis, etc., is based”.

64    The Migration Act does not contain any definition of the word “material”. Nor did either party take the Court to any authority which considered the meaning of “material” as used in s 473CB, or the Migration Act, or in any analogous context. It is a somewhat curious word to be employed in s 473CB. That is because s 473DC, which effectively defines the expression “new information”, employs the words “documents or information”, not “material”, when referring to what was not before the Minister when the relevant decision was made. That would suggest that the word “material”, when used in s 473CB, may have a meaning different to, and perhaps broader than, “documents or information”.

65    The Minister did not contend that a digital image could not constitute “material” for the purposes of s 473CB. Indeed, it appeared to be at least implicit in the Minister’s submissions that the digital image shown to the delegate in this matter was “material”. That is because the Minister submitted, albeit in the context of the appeal ground relating to s 473DC, that the digital image was a document or information that was “before” the Minister. That was the basis upon which it was said that the image was not “new information” for the purposes of s 473DC. It is difficult to see how something could be said to be “before” the Minister if it was not “material” provided by the referred applicant. It would also appear that the primary judge also accepted that the photograph was “material that was before the Delegate”: Judgment at [27]; see also [30].

66    It also does not appear that the Minister submitted in the Circuit Court that the digital image was not “material” for the purposes of s 473CB. If that submission was made, it was not referred to by the primary judge in his reasons. More significantly, the primary judge did not find that the digital image was not “material”. The primary judge’s findings, as best they can be comprehended, simply turned on the fact that the appellant did not subsequently submit the photograph to the delegate.

67    It is, in any event, difficult to see why a digital image could not be said to be “material”. A hard copy or print of a photograph would undoubtedly constitute “material” for the purposes of s 473CB. It is difficult to see why the same could not be said of a digital image. Of course a digital image, as distinct from the device on which the image is stored, is less tangible than a hard copy or print of a photograph. It does not follow, however, that a digital image cannot be “material” for the purposes of s 473CB. There is nothing in the text, context or apparent purpose of s 473CB to suggest that the word “material” should be restricted to documents or other physical items.

68    It is true that, considered in context, “material” must be something that the Secretary can subsequently “give” to the Authority. It does not follow, however, that it must be a tangible document or thing. Information provided by an applicant orally during an interview, for example, is not a tangible item or thing. It would, however, plainly be “material” for the purposes of s 473CB. It is no doubt for that reason that interviews are recorded and the Authority would in the ordinary course be provided with a transcript or perhaps sound recording of the interview.

Was the image “provided” to the delegate?

69    The more difficult question in this matter is whether the digital image was “provided” to the delegate. As already noted, it is common ground that the appellant showed the delegate the image on his phone and, while the delegate told the appellant that he could “submit that photograph at a later time”, that did not happen. The question is: did the appellant “provide” the digital image to the delegate by showing it to the delegate on his phone, even though he did not later submit a hard copy or soft copy of that image?

70    The Minister contended, or at least appeared to contend, that the act of showing the delegate the image on the phone did not amount to providing the image to the delegate. The basis of that contention appeared to be that the contrary conclusion would give rise to obvious “practical ramifications”. Those practical ramification were said to be that if, as occurred in this case, no copy of the image was left with or submitted to the delegate, the Secretary would have to “go out and get it” for the purposes of complying with subs 473CB(1) of the Migration Act.

71    The practical ramifications referred to by the Minister do not provide a sound reason for concluding that the digital image was not relevantly “provided” to the delegate for the purposes of s 473CB in the circumstances of this case. The word “provided” is not defined in the Migration Act. There is nothing in the text, context or purpose of s 473CB of the Migration Act generally to suggest that it should not be given its ordinary meaning, or that it should be given a limited or restricted meaning. The Minister did not submit otherwise, either in the Circuit Court or on appeal. Nor did he take the Court to any authority which supported his contention that the appellant did not “provide” the photograph to the delegate when he showed it to the delegate during the interview.

72    One of the dictionary definitions of “provide” is “to furnish or supply” (Macquarie Dictionary). If the word “provided”, when used in s 473CB, is given that meaning, it is difficult to see why it could not be said that, when the appellant showed the digital image to the delegate, he provided it.

73    Showing a decision-maker a digital photograph is, in a sense, a way of furnishing or supplying the decision-maker with the information depicted in or revealed by the image or photograph. Information, in that context, means “that of which one is told or appraised; … knowledge communicated concerning some particular fact, subject or event”: SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214; FCAFC 2 at [205]; Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at [24] (per Gageler, Keane and Nettle JJ). By showing the delegate the photograph, the appellant “provided” the delegate with the information contained or depicted in it.

74    It matters not that the digital photograph is not formally submitted to, or left with, the decision-maker in some more permanent or tangible form. There is no particular provision or procedure which requires a visa applicant to formally tender or submit documents or other items that they may show to a decision-maker during the course of an interview. Interviews of visa applicants should not be approached as if they were an adversarial proceeding.

75    When a visa applicant in the appellant’s position shows a decision-maker a photograph or other item in the course of an interview, the applicant is essentially providing the information or knowledge conveyed by the photograph to the decision-maker. The fact that the applicant may not tender or submit the photograph does not mean that the information in it was not provided. It is, in a sense, no different to the situation which occurs when an applicant conveys information to a decision-maker orally. Information given or conveyed to a decision-maker orally can be said to have been furnished or supplied, and therefore provided, to the decision-maker. It matters not that the information is not tendered or left with the delegate in some more tangible form. Of course, information provided orally may be recorded so that a transcript or record of the communication can later be produced if necessary. That does not alter the fact that the information was “provided” when first conveyed to the decision-maker.

76    The appellant accordingly “provided” the digital image to the delegate when he showed the delegate the photograph on his mobile phone. The fact that he did not then, or later, formally submit or provide a tangible copy of the image, in the form of a print of the photograph or otherwise, does not mean that he did not provide the delegate with the information conveyed by the image when it was shown to the delegate. The apparent contention that there was no breach of s 473CB because the appellant did not later submit a copy of the photograph is considered later.

77    It should be emphasised, in this context, that the Minister’s apparent contention that the image was not “provided” to the delegate appears to be somewhat inconsistent with the submissions that the Minister advanced in relation to the s 473DC ground. As will be seen, the Minister contended that the Authority was not required to consider the exercise of its discretion under s 473DC to get a copy of the photograph because a copy of the photograph was not, or would not have been, “new information”. That was said to be because the photograph was information which had been before the Minister. It is difficult to see how the photograph, or the information conveyed by it, was before the Minister if it had not been “provided”. That also appears to have been the conclusion reached by the primary judge, who found that the photograph was “material that was before the Delegate” and was “put before the Delegate by the [appellant]”: Judgment at [27] and [30]. It is implicit in those findings that the primary judge considered that the photograph had been “provided” to the delegate. He certainly did not expressly conclude otherwise. The Minister did not submit that the primary judge’s findings in that regard were wrong, let alone file a notice of contention in relation to them.

78    As for the supposed “practical ramifications” relied on by the Minister, there would in fact be no practical ramifications if decision-makers in the position of the delegate ensured that any material provided to them, including information which is provided in an intangible form, is recorded or retained in some form so that it can subsequently be given to the Authority. Indeed, the fairness of the statutory review scheme pursuant to Pt 7AA very much depends on such steps being taken. If such steps are not taken, the Authority may well end up conducting its review on the basis of incomplete material; that is, otherwise than on the basis of all of the material that was before the original decision-maker. Decision-makers who interview visa applicants in respect of potential fast track decisions should be particularly alive to the difficulties that may be encountered if they don’t take effective steps to record or retain all material that is provided to them during the course of the interview. As the Full Court observed in AUF18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCAFC 222 at [66], the “nature of the review to be carried out by the Authority underlines the importance of the Authority being provided with all relevant documents”.

79    Decision-makers in respect of fast track decisions appear to take appropriate steps in the case of information which applicants provide orally. As already noted, it would appear that interviews that are conducted with fast track applicants are generally recorded so that a transcript of the interview can be given to the Authority. Such steps should also be taken in the case of all other material which is provided in an intangible form. If, for example, an applicant physically demonstrates something during the interview, the delegate should ensure that the transcript of the interview will contain an accurate record of what has occurred. More significantly, for present purposes at least, if the delegate is shown an image, or a document, during the interview, the delegate should ensure that a record of that image or document is somehow retained. As the events of this proceeding show, problems can arise if the delegate simply suggests to the applicant that they can submit the image or document at a later time.

Does it matter that the appellant did not later provide a hard copy of the image?

80    The primary judge’s reasons for rejecting the appellant’s contention that there had been a failure to comply with s 473CB were based almost entirely on the fact that the appellant did not later submit a copy of the photograph to the delegate. His Honour reasoned, in effect, that it was the appellant’s fault that no copy of the digital image was given to the Authority. According to the primary judge, the fact that the delegate left it up to the appellant to supply a copy of the photograph, and that the appellant did not supply the photograph, meant that subs 473CB(1)(b) “could not be complied with”: Judgment at [32]. While that was said to be “somewhat unsatisfactory”, it was “totally in the hands of the [appellant]”: Judgment at [33]. While it is somewhat unclear, what his Honour appeared to be saying was that because it was the appellant’s fault that the photograph was not given to the Authority, there was either no breach of subs 473CB(1)(b), or if there was, it was a breach which was somehow excusable or immaterial.

81    The primary judge’s reasoning and conclusion, whatever it may have been, was erroneous. Once it is accepted that material that was provided to the decision-maker before the decision was made was not subsequently given to the Authority by the Secretary, it follows that there was a breach of, or non-compliance with, subs 473CB(1). It is essentially immaterial who was at fault, though that may be relevant to a consideration of the implication of the breach and the relief that may be granted.

82    It may readily be accepted that the fact that the appellant did not, after the interview, submit a copy of the photograph as he was in effect invited to do, meant that it was difficult for the Secretary to comply with subs 473CB(1) of the Migration Act. The problem for the Secretary was that a copy of the photograph was not in the Secretary’s possession or control. That problem was not necessarily the appellant’s fault. The problem was as much the product of the fact that the delegate did not take appropriate steps to ensure that a record or copy was made and retained of all the material that was provided by the appellant during the interview. That was the delegate’s responsibility.

83    In any event, and perhaps more fundamentally, the existence of the problem did not absolve the Secretary of the need to comply with subs 473CB(1)(b). It may be noted, in that regard, that unlike subs 473CB(1)(c), material that falls within subs 473CB(1)(b) must be given to the Authority even if it is not in the Secretary’s possession or control. In other words, the fact that the Secretary did not have all of the material that had been provided by the appellant to the delegate was the Secretary’s problem, not the appellant’s problem. It could not be ignored, as it appears it effectively was. There is certainly no evidence to suggest that the Secretary did anything to address the problem.

Conclusion in relation to compliance with subs 473CB(1)

84    The primary judge erred in his consideration of the appellant’s ground of review concerning non-compliance with subs 473CB(1). The digital image or photograph that the appellant showed to the delegate during the interview was “material” that was “provided” by the appellant to the delegate. The Secretary did not give the Authority that material as required by subs 473CB(1)(b). As a result, the Authority’s review of the decision to refuse the appellant’s visa application was not conducted in accordance with the statutory scheme in Div 3 of Pt 7AA. That is because subs 473DB(1) required the review to be conducted on the basis of the “review material” provided to the Authority under s 473CB. That review material was incomplete.

85    It should be added, in this context, that it is apparent from the Authority’s reasons that it knew that the appellant had showed the delegate a photograph during the interview. It must also have known that the review material sent to the Authority in purported compliance with subs 473CB(1) did not include that photograph or a copy of it and was therefore incomplete. There is nothing to suggest that the Authority appreciated that this presented any problem or difficulty, or that if it did that it attempted to do anything about it. That would tend to suggest that the Authority misunderstood or failed to appreciate the nature of the review jurisdiction that it was exercising.

86    Putting the last mentioned point to one side for the moment, the fact that the Secretary did not fully comply with s 473CB in this matter does not necessarily compel the conclusion that there was a jurisdictional error by the Authority. That is because not every breach of subs 473CB(1) will result in jurisdictional error. Rather, that will depend on the gravity of the breach: EVS17 at [35]. That will, to a large extent, depend on the materiality of the material that was not given to the Authority. That issue will be considered separately after consideration is given to the s 473DC ground.

Failure to exercise the s 473DC discretion

87    It is now well-established that the various powers conferred upon the Authority by the provisions in Div 3 of Pt 7AA, including s 473DC, are conferred on the implied condition that they are to be exercised within the bounds of reasonableness as explained in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; see also Plaintiff M174/2016 at [21] (per Gageler, Keane and Nettle JJ), [86] (per Gordon J), [97] (per Edelman J); Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475; FCAFC 210 at [82]; DPI17 v Minister for Home Affairs (2019) 366 ALR 665; FCAFC 43 at [35]-[36]. It is also well-established that a failure on the part of the Authority to consider exercising the discretion in s 473DC may be legally unreasonable, but that is not necessarily the case: DPI17 at [37]-[39].

88    The appellant contended that it was legally unreasonable for the Authority to consider exercising its discretion to obtain two types or categories of documents or information: first, “new information of the Appellant’s scarring by way of explanation of it (or the photographs of it), in particular placing the scar (or the photographs of it) in proper context”; and second, “the photograph of the Appellant’s scarring”. It was not in dispute that the Authority did not consider exercising its discretion under s 473DC in relation to either of those types or categories of documents, namely: the photograph; and, separately, contextual or more information to explain the scarring. There is certainly nothing in the Authority’s reasons to suggest that it did. The question is whether the Authority acted unreasonably, in the Li sense, in that regard.

89    Different issues arise in relation to each of these two types of documents or information.

Exercise of the s 473DC discretion to get the photograph

90    The main issue in relation to the exercise of the s 473DC discretion to get the photograph is whether the photograph was, or could conceivably have been considered to be, “new information” as defined in subs 473DC(1). If it was not new information, it was not open to the Authority to exercise its discretion to get the photograph.

91    There is no doubt that during the interview the appellant showed the delegate a digital image or version of the photograph which was stored on his phone. For the reasons given in the context of the s 473CB ground, that amounted to providing the delegate with the information depicted in the image, or communicating knowledge about the facts revealed by that image. That information or knowledge concerned the scarring or injury to the appellant’s hand depicted in the photograph and, more importantly, was relevantly “before the Minister” or the delegate for the purposes of subs 473DC(1)(a). It must follow that it was not open to the Authority to exercise its discretion to get the same information. The Authority therefore could not ask the appellant, or anyone else, to provide it with the digital image. That is so even though the Authority did not have that image before it because it had not been provided it by the Secretary pursuant to subs 473CB(1)(b).

92    There is, however, a potential issue as to whether it would have been open to the Authority to exercise its discretion to get a print of the photograph. The issue arises because subs 473DC(1) defines “new information” as being “documents or information” that meets the two conditions set out in subparagraphs (a) and (b). Something may be information even if it is not recorded in a document: Plaintiff M174/2016 at [24] (per Gageler, Keane and Nettle JJ). For the reasons just given, “information”, in the form of the digital image, was before the delegate. A “document” in the form of a hard copy or print of the photograph was not. A document includes a photograph: s 2B of the Acts Interpretation Act 1901 (Cth). Was it therefore open to the Authority to get a copy of that document by exercising its discretion under subs 473DC(1)?

93    The answer to that question, on balance, is “no”. That is essentially because the information depicted in, or the knowledge of facts conveyed by, the digital image is, for all intents and purposes, the same as that depicted in or conveyed by any hard copy or print of the photograph.

94    In ABJ17 v Minister for Immigration and Border Protection (2018) 260 FCR 295; FCA 950, a visa applicant had provided a delegate of the Minister with an untranslated copy of a “court slip” which was in Farsi. The delegate apparently could not speak, read, or write Farsi, but nevertheless gave the document no weight for various reasons. The delegate’s decision to refuse the visa application was referred to the Authority. The applicant gave the Authority an English translation of the court slip. The Authority received and considered the translation on the basis that it was not new information for the purposes of s 473DD. The applicant argued in subsequent judicial review proceedings that the Authority was wrong to do so because the translation was in fact new information. That argument was rejected at first instance and on appeal.

95    Bromwich J considered that there was no “meaningful difference” between the words “documents” and “information” in the global definition of “new information” in subs 473DC(1); rather, “the focus of the provision remains on confining the review to the substance of what was before the delegate unless quite stringent criteria are met”: ABJ17 at [22] (emphasis in original). His Honour held, in that context, that the information in the untranslated Farsi document was in substance the same as the information in the translation. His Honour said (at [23]):

The focus must therefore be on the substance, and not the form, of what was before the delegate. A faithful translation of a document that was before the delegate, no differently to an improved copy of a document that was otherwise difficult to read, does not engage the concept of being “new” in the sense which the phrase “documents or information (new information)” conveys. The requirement is that the document, in the sense of the information it conveys, or the information itself, be new, and not that its capacity to be comprehended or understood is new. In this case, the information in the original summons was before the delegate, but in Farsi. Had the delegate, by chance, been able to read Farsi, no translation would have been necessary. Had the delegate decided to use a Farsi-English dictionary, no translation would have been necessary, although such process may not have been very reliable or accurate. The provision of the English translation achieves the same practical purpose, but to a higher standard that is more likely to accord with the original in terms of the information conveyed and able to be comprehended. A change in comprehension is not a change in the information to which that comprehension applies.

(Emphasis in original.)

96    Bromwich J’s finding in ABJ17 was followed by Kerr J in DFS16 v Minister for Home Affairs (2019) 166 ALD 410; FCA 944. Kerr J was not persuaded that Bromwich J’s reasoning or conclusion was plainly wrong. Indeed, his Honour indicated (at [78]) that he would have reached the same conclusion as Bromwich J. Kerr J expressed the view (at [57]) that for “something to be information, it must be at least potentially comprehensible but there is no super-added test that it be actually comprehended”.

97    Similarly in BKX18 v Minister for Home Affairs [2020] FCA 432, Logan J held (at [61]), in the context of documents that were translated from Kurdish to English after the delegate’s decision, that he was not persuaded that the views expressed by Bromwich J were clearly wrong.

98    The finding that a document in Farsi, Kurdish, or any other language conveys or communicates the same information or knowledge as an English translation is, with respect to their Honours, highly questionable, at least where the recipient of the document cannot read the relevant language and makes no attempt to do so. To such a person, the untranslated document conveys very little, if any, information or knowledge. It amounts to just a series of symbols on a page. The fact that the recipient could have, if he or she had chosen to do so, use a translation dictionary to decipher those symbols and glean some meaningful information from the document seems beside the point. That is so particularly in circumstances where that was not done. It is difficult to see how, in such circumstances, the substance of the information in the untranslated document could be said to have relevantly been “before” that person. As desirable as it might be for the Authority to be able to consider a translated version of a document that was before the delegate, it is difficult to accept that the translation is not new information and that the Authority would, in those circumstances, be subject to the constraints in s 473DD.

99    Nevertheless, the reasoning in those cases does appear to have some application in this case, whatever may be the correct position in relation to untranslated versus translated documents. That is because there could be little doubt that the information or knowledge conveyed by the digital image which was shown to the delegate was in substance the same as the information or knowledge that was, or would have been, conveyed by a hard copy or print of that image. The appellant submitted that the “digital file” and the printed photograph were not “equivalent information”. That was said to be because digital files contain a “wealth of information that is not reproduced on paper”, including “the date of the file’s creation or manipulation”. The difficulty for the appellant, however, is that the delegate was only shown the digital image. The delegate was not shown any of the other digital information that may have been in the digital file.

100    It is, in those circumstances, difficult to see how it would have been open to the Authority to exercise its discretion to get a copy of the hard copy photograph from the appellant. That is because the photograph contained, in substance, the same information as the digital version of the photograph which was shown to the delegate. It would not constitute or comprise “new information” for the purposes of s 473DC because it was, in substance, the same as the information which was before the delegate.

101    It should also perhaps be added that, even if a print of the photograph could be said to be “new information”, it is difficult to see how the Authority could have considered it in any event. That is because there could be little doubt that a print of the photograph could have been provided to the Minister before the Minister, or his delegate, made the decision under s 65 of the Migration Act. In those circumstances, the referred applicant would not have been able, in any event, to persuade the Authority that the print of the photograph satisfied subs 473DD(b)(i) of the Migration Act. The fact that the Authority would not, in any event, have been able to consider the photograph would have been a good reason not to exercise the discretion under s 473DC to get the photograph in the first place.

102    One could be forgiven for thinking that it is somewhat absurd that, in the particular circumstances of this case, the Authority was in effect precluded by s 473DC or s 473DD from either getting or considering a document or information which was before the delegate whose decision the Authority was reviewing, but which it did not have in the review material. That is particularly the case given that the statutory scheme under Pt 7AA is clearly premised on the Authority having all of the material that was before the original decision-maker.

103    The solution to that seemingly absurd conundrum is, however, rather simple. Once the Authority realised that it did not have the photograph, the appropriate course for it to have taken was not to seek to exercise its discretion under subs 473DC(1). It was, rather, to simply ask the Secretary to provide it with a copy of the photograph, given that it was part of the review material that should have been sent to the Authority pursuant to s 473CB. While the Secretary may not have had a copy of that document, it would have been a relatively simple step to contact the appellant to ensure that a copy could be provided. There is nothing to suggest that the Authority gave any thought to the fact that it had not been sent the photograph as part of the review material, let alone how that issue was able to be resolved. Had it done so, it is far less likely that its decision would have been the subject of review proceedings in the Circuit Court.

Exercise of the s 473DC discretion to get contextual information

104    The appellant contended that, even if the Authority could not have attempted to get a copy of the photograph because it was not “new information”, the Authority could nonetheless have exercised its discretion to get an “explanation” of the appellant’s scarring. This appeared to amount to a contention that the Authority should have exercised its discretion to get more information from the appellant concerning the scar or scars on his hand in the absence of the photograph which the Authority did not have before it.

105    There are at least two fundamental problems with that contention. First, it is highly doubtful that any explanation which the appellant may have been able to give in relation to the scar or scars on his hand would be “new information”. The delegate asked the appellant about the scars on his hand and the appellant provided information to the delegate in response. That information was before the delegate. Second, even if such an explanation was new information, and it was accordingly open to the Authority to exercise its discretion to get that information, it could not be said that the failure of the Authority to consider exercising that discretion was legally unreasonable in all the circumstances.

106    The appellant contended that it was unreasonable because the Authority did not have the photograph before it. While it is true that the Authority did not have the photograph, there was nothing to suggest to the Authority that the appellant would have been able to give any explanation of the scarring on his hand over and above that which he gave the delegate. It is, at best, speculative to contend, as the appellant did here, that the appellant would have been able to give any further information to put the scarring “in proper context”.

107    The test of legal unreasonableness is stringent: Li at [108]-[109], [113] (per Gageler J). The act or omission which is said to be unreasonable will only be legally unreasonable if it is shown to be outside the area of “decisional freedom” within which a valid decision or exercise of discretion can be made having regard to the subject matter, scope and purpose of the relevant legislation: Li at [28] (per French CJ), [66] (per Hayne, Kiefel and Bell JJ). The appellant has not shown that to be the case in relation to the Authority’s failure to consider the exercise of its discretion under s 473DC of the Migration Act.

Conclusion in relation to s 473DC ground

108    The appellant has, in all the circumstances, failed to demonstrate that the Authority acted unreasonably, in the Li sense, in not considering exercising its discretion under s 473DC to get a copy of the photograph from the appellant, or to get an explanation of the scarring on his hand.

MATERIALITY

109    For the reasons given earlier, the primary judge erred in not finding that the Secretary failed to comply with subs 473CB(1) because the material which was sent to the Authority in purported compliance with that section did not include the digital image or photograph that the appellant provided to the delegate. It does not follow that there was jurisdictional error on the part of the Authority. Not every breach of subs 473CB(1) of the Migration Act will result in jurisdictional error. That will depend upon the gravity of the breach: EVS17 at [35].

110    The gravity of the breach will in turn depend, to a large extent, on the materiality of the documents which were not sent to the Authority. The question is not whether the missing documents would have affected the outcome of the review having regard to the Authority’s reasons and the way it undertook its fact finding assessment of the appellant’s claims. Rather the question is whether the documents that were not provided by the Secretary could have resulted in the making of a different decision: EVS17 at [42] citing Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at [31] (per Kiefel CJ, Gageler and Keane JJ).

111    As was noted earlier, the primary judge found, in effect, that the photograph could not have resulted in the making of a different decision if it had been provided in compliance with s 473CB(1). While his Honour’s reasoning in support of that conclusion was, to say the least, rather scant, his conclusion was nevertheless correct, or at least not shown to be in error. In all the circumstances, it cannot reasonably be concluded that the photograph could have affected the outcome of the Authority’s review given the nature or content of the photograph, the claims made by the appellant, and the Authority’s reasons for rejecting those claims. That is so for a number of reasons.

112    First, the photograph was, at its very highest, capable of proving no more than that the appellant had suffered some injury to his hand at some time in the past and before the relatively recent incident that had occurred on the Gold Coast. When one looks at the photograph, even that is perhaps doubtful, however the issue should be addressed on the basis that the photograph is at least capable of proving that fact. What is important, however, is that the photograph was not capable of proving precisely how or when the prior injury was sustained, let alone that it was sustained in Iran as a result of the appellant being hit by a baton wielded by the “morality police”.

113    In those circumstances, the photograph was deserving of little, if any, weight as corroborative evidence. That finding I supported by the fact that the photograph was obviously not a significant part of the appellant’s case before the delegate. Indeed, it was only really produced by the appellant when he was confronted with the suggestion that the scar on his hand was the result of a recent fist fight on the Gold Coast. The photograph had been given little weight by the delegate and in all the circumstances was likely to have been given little, if any, weight by the Authority.

114    Second, that point is perhaps confirmed by the Authority’s reasoning, such as it was. The Authority was plainly aware of the existence of the photograph and the circumstances in which the appellant had shown it to the delegate. While the Authority did not have the photograph before it, and accordingly did not make any express finding about what it depicted, the Authority’s reasoning suggests that if it had been given the photograph, it was nevertheless unlikely to have given it any, or any significant, weight. That is so even if the Authority had accepted that it showed that the appellant had an older scar on his hand. That is apparent from the Authority’s observation (Reasons at [20]) that the appellant had not submitted any other evidence to substantiate his claim that “this scar was caused by the injury he claims was sustained by the morality police”. That was in many respects similar to the stance taken by the delegate.

115    Third, and related to the first two points, while the Authority’s reasons for rejecting the appellant’s claim concerning the dress code incident are sparse and somewhat unpersuasive, if not unsatisfactory, it appears that it was the country information which was the main reason for rejecting the claim. In particular, the Authority appears to have been swayed by the country information which suggested that overzealous enforcement of the dress code by the morality police mostly occurred outside Iran’s larger cities and was therefore unlikely to occur in Tehran where the appellant resided. That information appears to have persuaded the Authority that it was unlikely that the appellant was assaulted and injured by the morality police as he had claimed. That again tends to suggest that, even if the Authority had accepted that the photograph provided some evidence of a past injury to the appellant’s hand, it is highly doubtful that that acceptance was likely to have led the Authority to accept that the injury had been sustained as a result of the overzealous actions of the morality police in Iran.

116    Fourth, even if the photograph could have resulted in the Authority accepting that the dress code incident had occurred and the appellant had been injured as he claimed, there is nothing to suggest that that finding could have had any impact on the Authority’s findings concerning the appellant’s other claims. In particular, the Authority’s rejection of the appellant’s claims concerning the so-called Ramadan incident was based on independent reasoning concerning “credibility issues … surrounding many key elements” of that incident. There is nothing to suggest that the photograph, or the findings made concerning the dress code incident, were likely to have had any impact on the Authority’s consideration of the Ramadan incident.

117    Fifth, even in the rather unlikely event that the photograph persuaded the Authority that the dress code incident had in fact occurred, it still would not necessarily have followed that the Authority’s broader findings that it was not satisfied that the appellant faced a real chance of serious harm would have been any different. The dress code incident was only one event in the past which had resulted in the appellant suffering harm. Even if the Authority accepted that the single dress code incident had occurred at some point in the past, it is highly likely that the Authority would nevertheless still have found that the appellant did not have a well-founded fear of suffering serious harm in the future if returned to Iran, particularly having regard to the findings made by the Authority in relation to the country information.

118    The appellant relied heavily on the analysis of materiality in EVS17, which was also a case where there had been a breach or failure to fully comply with s 473CB of the Migration Act. While the analysis of materiality in EVS17 is a useful guide to how the question of materiality should be approached and evaluated by the Court in cases involving a breach of s 473CB, the facts and circumstances of this case are far removed from those considered in EVS17.

119    It should be acknowledged that the evaluative exercise that must be undertaken to assess whether the provision of other material to the Authority, in this case a single document, could have resulted in the making of a different decision is not always easy. Reasonable minds may differ. In this matter, however, the appellant has failed to persuade the Court that a different decision could have been made if the Authority had been given the photograph.

CONCLUSION AND DISPOSITION

120    The appellant has demonstrated that the primary judge erred in rejecting the contention that the Secretary failed to comply with s 473CB because it did not give the Authority all of the material which had been provided by the appellant to the delegate as required by subs 473CB(1)(b). There was such a breach because the photograph formed part of the review material but was not given to the Authority. The appellant has not, however, demonstrated that the primary judge erred in concluding that any such breach of subs 473CB(1) was not a material breach. In all the circumstances, the provision of the photograph could not have resulted in a different decision having regard to the Authority’s reasons and the other findings it made.

Associate:

Dated:    30 April 2020