FEDERAL COURT OF AUSTRALIA

BFV18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1362

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    Order 1 of the orders made by the primary judge on 18 December 2019 be set aside, and in lieu thereof, there be the following orders:

(a)    a writ of certiorari issue quashing the decision of the second respondent made on 14 February 2018.

(b)    a writ of mandamus issue, compelling the second respondent to review the decision of the first respondent under Pt 7AA of the Migration Act 1958 (Cth) according to law.

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

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

REASONS FOR JUDGMENT

CHARLESWORTH J:

1    The appellant is a citizen of Iraq. He is a Shia Muslim of Arab ethnicity. He arrived in Australia in early 2013 as an “unauthorised maritime arrival” within the meaning of s 5AA of the Migration Act 1958 (Cth). On 11 October 2016, the appellant lodged an application for a protection visa. In support of his application the appellant claimed to fear harm from a paramilitary group known as the Mahdi Army. He also claimed to fear persecution by virtue of his religious beliefs as a secularised moderate who was opposed the ideals of radical Islam.

2    A delegate of the then-named Minister for Immigration and Border Protection refused to grant the visa. That decision was automatically referred to the Immigration Assessment Authority for review under Pt 7AA of the Act. The Authority affirmed the delegate’s decision.

3    The primary judge dismissed an application for judicial review of the Authority’s decision:  BVF18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2019] FCCA 3684. This is an appeal from that judgment.

4    For the reasons that follow, the appeal should be allowed.

the visa application

5    For the appellant to qualify for the grant of the visa it was necessary that the Minister be satisfied that (among other things) the appellant fulfilled either the criterion in s 36(2)(a) of the Act (the refugee criterion) or the criterion in s 36(2)(aa) (the complementary protection criterion):  see s 36(1A) and s 65(1) of the Act. The refugee criterion would be fulfilled if the Minister was satisfied that the appellant was a person to whom Australia owed protection obligations because he was a “refugee” as defined in s 5H of the Act. It relevantly provides:

(1)    For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:

(a)    in a case where the person has a nationality—is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country

6    Section 5J relevantly provides:

(1)    For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)    there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)    the real chance of persecution relates to all areas of a receiving country.

Note: For membership of a particular social group, see sections 5K and 5L.

(2)    A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note: For effective protection measures, see section 5LA.

(3)    A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a)    conflict with a characteristic that is fundamental to the person’s identity or conscience; or

(b)    conceal an innate or immutable characteristic of the person; or

(c)    without limiting paragraph (a) or (b), require the person to do any of the following:

(i)    alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

(ii)    conceal his or her true race, ethnicity, nationality or country of origin;

(iii)    alter his or her political beliefs or conceal his or her true political beliefs;

…

7    The appellant provided a written statement in support of his visa application. It contained assertions that:

(1)    his father was a member of the Ba’ath Party and that he had served as a staff officer in the Ba’athist Army under the Saddam regime;

(2)    his Uncle was accused of associating with the Islamic opposition to the Saddam regime and engaging in hostile activities;

(3)    his family was targeted by security groups, their assets were seized and in 1993 they were displaced to another province;

(4)    at the fall of the Saddam regime, his brother J joined the Iraqi military and had worked for coalition forces as a liaison officer, and another brother had also joined the Iraqi military;

(5)    as a result, he and his family were accused of cooperating with occupying forces and suffered intimidation and threats, including by the Mahdi Army;

(6)    his brother J was abducted in 2009 by an “unidentified organisation” and his fate was unknown;

(7)    J’s abduction had been confirmed by a letter from the Ministry of Interior and the family still does not know his fate;

(8)    he relocated with his brother M to another city and they later fled to Australia to avoid persecution; and

(9)    he had been the victim of a data breach by the Department of Immigration and Border Protection and he feared persecution as a result of the data breach should he be returned to Iraq.

8    The data breach referred to in the supporting statement was a breach of security affecting the website of the Department, enabling members of the public to access personal information about people who were held in immigration detention on 31 January 2014, including the appellant.

9    The appellant participated in an interview with the delegate in the company of his migration agent. In the course of the interview, the appellant made further claims to the effect that he had suffered persecution by reason of his occupation as a hairdresser in Iraq and that his family had been forced to relocate as a result of threats and harassment following the data breach. He also provided a number of documents in support of his claims. They included:

(1)    a letter from the Deputy Director of the Minister for the Interior confirming that the appellant’s brother had been a member of the Iraqi Security (Police) Force and that he was missing (the DDMI letter);

(2)    a letter denouncing the appellant’s family (the denouncement letter);

(3)    other documents (unidentified in this proceeding) that are said to have been provided to the delegate “between minutes 13-28” of the interview.

10    The delegate accepted that the appellant’s family were forced to relocate during the Saddam regime, that his father had served in the Ba’athist Army, that two of his brothers had served with the Iraqi military following the collapse of the regime and that his brother J had gone missing in 2009.

11    The delegate said that no evidence had been produced to support the claim that J had been abducted and that the asserted reasons for J’s disappearance were “speculative”. The delegate said that “no corpse was found, no documents were provided”. The delegate rejected the appellant’s claims in relation to his work as a hairdresser and the claim that his family had been forced to relocate because of the data breach. The delegate was not satisfied that the appellant fulfilled either the refugee criterion or the complementary protection criterion and so refused to grant the visa.

12    The delegate’s decision was a “fast track reviewable decision” within the meaning of the Act.

13    Section 473CA of the Act provides that the Minister must refer a fast track reviewable decision to the Authority as soon as reasonably practicable after the decision is made. The Authority must review a fast track reviewable decision that is referred to it under s 473CA:  s 473CC(1).

14    Section 473CB relevantly provides:

Material to be provided to the Immigration Assessment Authority

(1)    The Secretary must give to the Immigration Assessment Authority the following material (review material) in respect of each fast track reviewable decision referred to the Authority under section 473CA:

…

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

15    The appellant’s representative provided a written submission to the Authority. By those submissions, the appellant withdrew his claims that his family were forced to relocate in 2017 following the data breach and his claim that he had been persecuted by reason of his occupation as a hairdresser. It was submitted that the appellant had falsified those claims because he had “panicked” at the interview before the delegate and because of his fear of being returned to Iraq.

16    The submissions went on to say this of the denouncement letter:

The Applicant provided a letter of denouncement provided to his family by his tribe denouncing both himself and his brother [M]. The Delegate considered this letter as a claimed threat letter from the Mahdi army and rejected it. However the letter was not submitted as or understood as a threat letter from the Mahdi Army, but very clearly explained, on the letter, as a denouncement by the Tribe. This was due to the brothers not paying their dues to the Tribal protection fund. It is a letter indicating that by not paying their dues, the brothers have disassociated themselves from the Tribe and will not receive any protection from it. The letter is plausible within the culture of Iraq, which was not understood by the Delegate. This increases the risk of punishment by the Militias for other perceived sins, because there would be no social costs to the Militias for imposing punishments on persons without strong tribal affiliations. Further they have no strong connections to Karbala, being originally from [place name redacted]. In addition, DFAT country information report – Iraq, 2017, indicates that there remains discrimination against former members of the Baathist regime (and by implication their families). The fact that the family is not from Kerbala [sic] is likely to increase the discrimination due to lack of tribal and political connections there.

17    The submissions complained of the delegate’s finding that there was no evidence the appellant’s brother J had been abducted.

18    The submissions went on to assert that the appellant would face persecution if returned to Iraq by reason of his status as a “moderate and secularized Shia”. Among other things, it was claimed that the appellant was in a relationship with a woman and that the refusal of the visa would result in his partner accompanying him to Iraq where they would live to together as an unmarried couple, contrary to Sharia law. It was said that living together whilst unmarried would be demonstrative of his modern secular views and so expose him to a risk of persecution. It was submitted that these issues had squarely arisen before the delegate but had not been fully explored, such that there were exceptional circumstances to justify the Authority receiving and considering the new information.

19    It was also submitted that the appellant would be at risk of being persecuted because he was a “non-conformist”, including because he had a tattoo on his right arm depicting a “skeleton ruling on a throne with a crown”. The agent submitted that the appellant would be considered a Satanist because of the tattoo and that he would be subject to severe punishment on religious grounds.

20    On 9 February 2018 (a Friday), the relevant member of the Authority sent an email to the Department of Immigration and Border Protection bearing the heading “POST-REFERRAL REQUEST FOR DOCUMENTS”. It relevantly stated:

We have received a file referral from you in relation to the above applicant. The documents listed below appear to be missing or incomplete:

•    There are a number of documents provided by the applicant at the PV interview (from minutes 13 – 28) which are not included in the referred file. Can these please be provided? Thank you.

Could you please review the Department file, and arrange to resend the documents within 2 working days of receiving this request.

21    The letter went on to request that the documents be provided by way of upload to an information system, and to request that the Department notify the Authority when the documents had been uploaded.

THE AUTHORITY’S DECISION

22    Section 473DB(1) of the Act provides:

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.

23    The Authority’s powers to obtain and consider new information is confined by s 473DC and s 473DD of the Act in, relevantly, the following terms:

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.

…

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.

24    The Authority notified the appellant of its decision to affirm the delegate’s decision by email sent on 14 February 2018, that is, on the Wednesday following its request to the Department for the provision of the missing documents. Detailed written reasons for the decision were provided on the same day. The Authority stated (at [3]) that it had had regard to “the material given by the Secretary” under s 473CB of the Act. It then referred to the submissions that had been provided by the appellant’s representative and summarised (at [4]) what it characterised as “claims” made in the submissions that were “new information”, including:

a)    The applicant had falsely stated at the interview with the delegate (‘the PV interview’) that he had been beaten three times while working as a barber in [location redacted], and that his family had recently left [location redacted]. He made these false claims out of fear of being returned to Iraq;

b)    He provided a letter of denouncement at the PV interview. This is a letter indicating that by failing to pay their dues into the Tribal Protection Fund, he and his brother [M] have disassociated themselves from their tribe and have now been denounced by the tribe;

c)    [Name redacted], otherwise known as [E], is his girlfriend. She is a non-Muslim. She has now indicated that she would return to Iraq with the applicant if his visa were refused and live with him in an unmarried relationship. This would place both her and the applicant at extreme risk of being killed as adulterers;

d)    The applicant has a full arm tattoo of a crowned skeleton ‘ruling on a throne’ which would be considered Satanic in Iraq. This would cause him to be punished due to non-conformity with societal and Shari’a rules;

…

25    The Authority went on to assess the “new information” against the requirements of s 473DD. It concluded:

5.    In relation to point (a) above, I note that the applicant attended the PV interview on 16 October 2017 and the delegate’s decision was made on 15 December 2017. I am not satisfied that the applicant was unable to withdraw his false claims or clarify his evidence to the delegate during this period. I am however satisfied that this is credible personal information in that it goes to the evidence, or part of the evidence, provided by the applicant to the delegate and that had it been previously known it may have affected the consideration of the applicant’s claims. I am satisfied that this is an exceptional circumstance and I have had regard to this information.

6.    Turning to point (b), the audio record of the PV interview notes that this document was tabled as claimed. It did not form part of the review material. The applicant stated at the interview ‘this is a letter sent to my father asking him to denounce two of his sons’. The applicant provided no further information relating to the document at the interview. He now claims that the reason he and his brother were denounced by their tribe was failing to pay their dues into the Tribal Protection Fund. There is no indication in the submissions of 8 February 2018 as to why the applicant did not give the delegate any further evidence relating to the letter and I am not satisfied that he could not have done so. The review material is entirely silent on the existence of ‘Tribal Protection Funds’ in Iraq. The applicant has not satisfied me that his recent statement regarding the denouncement letter is credible information. I am also not satisfied that there are exceptional circumstances to justify its consideration.

7.    In relation to the information set out at paragraph (c), Mr Taylor contends that this is not new information but was an unarticulated claim that arises on the material before me. I do not accept this contention. The delegate asked the applicant at the PV interview whether he knew a number of people. He responded ‘she’s my girlfriend’ to [her] name, adding that she lived in Darwin and that he first met her when she was working at the Darwin Immigration Detention Centre and he was a detainee at that centre. He did not provide any information about her religion. In answer to the delegate’s questions, the applicant stated that Eloise had no intention of moving to Sydney (where he resides) or he to Darwin. I do not accept as plausible the statement that she would now intend to accompany him to Iraq if he is returned there and do not consider that this comprises credible personal information. I do not accept that such a claim could not have been provided to the delegate. I am not satisfied that exceptional circumstances warrant consideration of the claim as set out at point (c) above.

8.    In relation to the applicant’s tattoo as described at point (d), the submission notes that the applicant did have such a tattoo prior to the PV interview but chose not to display it to the delegate. Section 473DD(b)(i) is not met. I accept that the claim that the applicant has such a tattoo is factually correct. The applicant chose not to display his tattoo to the delegate therefore it would appear that the tattoo would also not be visible in Iraq unless he chose to display it. The applicant claims that he would be punished in Iraq due to non-conformity with societal and Shari ’a rules however this would only be the case if he chose to display his tattoo. Mr Taylor notes that the applicant did not show the delegate his tattoo out of fear of being judged or considered to be a bad person. I am therefore not satisfied that the applicant would display his tattoo in Iraq, for similar reasons. The applicant has proved no information to support the assertion that he will be at risk because of his tattoo. The applicant has not satisfied me that the existence of his Satanic tattoo comprises credible personal information which may have affected consideration of his claims. In considering whether exceptional circumstances justify consideration of this claim, I note that the applicant’s then representative Dr Al Jabiri made no mention in his submission of December 2016 of Western influences or that the applicant would in any way be considered a non-conformist in Iraq. The applicant has provided no information that leads me to conclude that exceptional circumstances warrant consideration of this claim, and I do not.

26    In relation to the reasons for the death of the appellant’s brother J, the Authority said (at [14]):

There is nothing in the review material which confirms that the applicant’s brothers [J and A] were members of the Iraqi Security Forces (ISF) however the applicant has consistently claimed that this is the case and I am prepared to accept that they were. I also accept that in July 2009 [J] went missing in Basra province and is presumed dead. Country information from 2012 confirms that Iraqi soldiers and policemen were killed on a daily basis. Members of the ISF were also reportedly singled out for assassination when off-duty, including in their homes. Because members of the ISF, regardless of rank, were often attacked in their private environment, e.g. their homes or private vehicles, their family members, guards and drivers as well as civilian passers-by were also at risk of being killed or wounded. In the applicant’s case however, he does not claim that the Mehdi Army came to their home seeking to harm [J and A], but to threaten the other members of the family. The applicant reports that the Mehdi Army came to the family home a number of times over several years, verbally threatened the applicant’s father at the front door, and then went away. He does not claim that any of his family came to harm in [place name redacted], that any of these threats were ever made good, that any Mehdi Army members approached or threatened him or his brothers when they were out of the house or or [sic] that there was any escalation of the oral threats. I do not consider the stated scenario to be plausible and do not accept that Mehdi Army members approached the applicant’s house between 2008 and 2012 and threatened his family. I consider that this claim reflects poorly on the applicant’s credibility.

27    The Authority went on to reject the appellant’s claim that he and his family were at risk of harm from the Mahdi Army. Whilst the appellant had reported incidents in which members of the Mahdi Army had come to the family home and made threats, the Authority said there was no claim to the effect that the threats had ever been acted upon. Later in its reasons, the Authority said (at [23]):

The applicant has claimed that on return to Iraq he would be targeted by Shia militia groups because his brothers [J and A] worked with the coalition forces as officers in the ISF until [J’s] disappearance in 2009. I have not accepted that the applicant or any other members of his family were threatened due to [J’s or A’s] employment or as a result of [J’s] disappearance. DFAT currently assesses that the risk of societal violence in Iraq to those who have worked with the international community is moderate. Although I accept that, across the whole of the country, the risk to people who formerly worked for or with foreign companies or the coalition forces is moderate, the country information does not support the conclusion that this risk is extended to members of their family. Further to this, I note it has now been nine years since the applicant’s brothers worked with the coalition forces and the remaining family members have not been harmed or received any adverse attention due to this during that time. I am not satisfied that there is a real chance that the applicant would face harm due to his brothers’ former employment or the disappearance of [J], on return to Iraq.

(footnote omitted)

28    The Authority went on to accept that the appellant was “moderate and secular”, that he was opposed to fundamentalist groups and their ideals, including the radical Islamist goal of establishing Iraq as an Islamist State. The Authority said (at [24]):

…  I accept that he holds these views but do not accept that he has openly or publicly espoused or declared them.  …

GROUNDS OF APPEAL

29    To succeed on his application for judicial review it was necessary for the appellant to show that the Authority’s decision was affected by jurisdictional error:  Act, s 474; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

30    The grounds of appeal in this Court (as amended) encapsulate some, but not all, of the arguments advanced at first instance. They are expressed as follows:

1.    The IAA lacked jurisdiction in that the Secretary had not provided to it all material provided by the Appellant or otherwise referred the matter appropriately under s473CB including:

  (a)    The ‘denouncement letter’ and the ‘DDMI letter’; and

(b)    All documents provided by the Appellant between minutes 13-28 of the PV interview,

2.    The IAA failed to consider relevant documents and material being;

  (a)    The ‘denouncement letter’ and the ‘DDMI letter’; and

(b)    All documents provided by the Appellant between minutes 13-28 of the PV interview.

3.    The IAA misconstrued and misapplied s473DD or otherwise failed to consider:

  (a)    …

(b)    The information regarding the Appellant’s ‘un-islamic’ [sic] relationship,

  (c)    The claim in regard to the Applicant’s tattoos.

31    The task of this Court is to determine whether the primary judge erred in dismissing the application for judicial review. The above grounds do not assert appealable error on the part of the primary judge. Rather, they allege jurisdictional error on the part of the Authority. The grounds of appeal will be approached on the assumption that they are intended to allege error by the primary judge in failing to find that the decision of the Authority was affected by jurisdictional errors of the kind referred to.

32    The first two grounds may be considered together.

GROUNDS 1 AND 2

33    The denouncement letter and the DDMI letter were both admitted in evidence before the primary judge.

34    Argument proceeded from the factual premise that the Secretary had provided neither of those documents to the Authority. The inference that the documents were not provided clearly arises on the material before me. At first instance it was the Minister’s responsibility to include in a court book the material that was before the Authority. The letters were not included among that material. The Authority did not have the material on the Friday before making the decision and expressly stated in its reasons that the documents were not among the review material. Had the documents subsequently been provided to the Authority in response to its request, I am satisfied that the Authority would have said as much in its reasons.

35    In relation to the denouncement letter, the primary judge said:

55.    The applicant submitted that that the Authority cannot know what is new information without having the Denouncement Letter. The applicant submitted that while the Authority rejected the information provided in the applicant’s migration agent’s submission regarding the Denouncement Letter, it did so without having the Denouncement Letter itself. However, it should be noted that the Authority referred to the contents of the Denouncement Letter in the same terms as had the applicant’s migration agent and the Authority’s summary of those contents was accurate.

56.    The new information affected by the Denouncement Letter is said to be that the applicant’s father was told 20 days prior to the applicant’s Protection Visa interview in 2017 that his sons are traitors and collaborators in Australia. As stated above, that statement by the applicant was made to support his assertion that he was at risk because of the data breach. At the Protection Visa interview, the applicant said that because of this approach his whole family had to flee [their home province]. However, the applicant withdrew that claim before the Authority that his whole family had fled [place name redacted] as a result of the applicant’s father being told his sons are traitors and collaborators in Australia. The Authority found that the applicant’s withdrawal of that claim affected the applicant’s credibility.

57.    The Authority considered that information and found that there was no explanation as to why the applicant did not give the Delegate that new information and was satisfied that the applicant could have done so. The Authority found the recent statement not to be credible information that there were otherwise no exceptional circumstances to justify its consideration.

(original emphasis)

36    The primary judge went on to conclude (at [58]) that the Authority’s findings in respect of the denouncement letter were open to it to make and so did not disclose jurisdictional error. Any failure by the Secretary to provide the Authority with a copy of the denouncement letter did not constitute jurisdictional error because its provision could not have resulted in a different decision (at [59] – [65]).

37    The primary judge went on to summarise the submission that had been made to the Authority about the DDMI Letter and the Authority’s conclusions in respect of it in terms that are not challenged on this appeal. The primary judge said:

76.    The Authority accepted the assertions in the DCMI [sic] letter that J was a member of the Iraqi Security Forces and that he was missing presumed dead. The statement in the DDMI Letter that ‘it is believed that he was kidnapped by an unknown militia’ does not materially affect the Authority’s findings. Whether he was kidnapped or not is not the critical or material information. The relevant information, which the Authority accepted, was that the brother was a member of the Iraqi Security Forces, was missing and presumed dead. The findings of the Authority accepted, that there was violence involved in his disappearance, whether kidnapped or otherwise.

77.    The failure of the Secretary to provide the Authority with a copy of the DDMI Letter did not result in any demonstrable unfairness to the applicant and therefore was not a material breach of s 473CB of the Act.

38    The two contentions underlying grounds 1(a) and 2 is that the Secretary failed to provide the Authority with the denouncement letter and the DDMI letter in accordance with the obligation under s 473CB of the Act and that, as a consequence, the Authority had no jurisdiction to conduct the review. The first contention may be accepted. The obligation to provide the two letters to the Authority arose because, on any view of the facts, the letters constituted “material provided by the referred applicant to the person making the decision before the decision was made”. On all of the material before the primary judge, the proper inference is that neither letter had been provided to the Authority at the time that it exercised its power to affirm the delegate’s decision.

39    However, it does not follow that the Authority’s decision was affected by jurisdictional error. As the Full Court said in EVS17 v Minister for Immigration and Border Protection (2019) 268 FCR 299 (at [35]):

What then is the consequence of a failure to comply with s 473CB(1)? A failure by the Secretary to comply with s 473CB(1)(b) of the Act may prevent the Authority from conducting the ‘review’ contemplated by Pt 7AA such that jurisdictional error on the part of the Authority is established. But the parties were agreed, and we accept, that not every breach of s 473CB(1) of the Act will result in jurisdictional error. Rather, whether that is so will depend upon the gravity of the breach.

40    In Minister for Immigration and Border Protection v CPA16 (2019) 268 FCR 379 the Court said (at [32]):

We consider the following principles to be applicable:

(1)    Section 473CB(1) of the Act is mandatory in its terms. It provides that the Secretary must give the ‘review material’ to the Authority. The Authority is required to undertake a de novo consideration of the merits of the decision referred to it rather than to correct error in the delegate’s decision. That the Authority must consider the application afresh without the benefit, except in the limited circumstances set out in Pt 7AA, of an oral hearing or the ability for the applicant to provide additional material, brings into sharp focus the importance of compliance with s 473CB(1), such that the Authority has all of the material before it that was provided by the applicant to the delegate: EVS17 at [32]-[34].

(2)    Where the Secretary fails to give review material to the Authority in breach of s 473CB(1) that will result in jurisdictional error where the review material that was not provided could have resulted in the making of a different decision. A contravention only results in jurisdictional error if the error is material in the sense that it operates to deprive the applicant of the possibility of a successful outcome: EVS17 at [42]; Hossain at [30]-[31]; SZMTA at [2], [3], [48], [49].

(3)    Whether the document or information which was not given to the Authority could have resulted in it making a different decision must be assessed ‘realistically’: SZMTA at [45], [49] and [50].

(4)    In order for the Court to decide whether the Authority’s decision could realistically have been different evidence of the content of the document or information is relevant and admissible, and it is appropriate to have regard to the Authority’s decision: SZMTA at [50] and [71].

(5)    The applicant for judicial review has the onus of proof to show that the missing document or information is material: SZMTA at [4], [41].

(6)    Speculation as to how the missing document or information ‘may’ have affected the decision is not enough to discharge the onus of demonstrating materiality. The Court must decide whether non-compliance with s 473CB(1) has operated to deprive the applicant of the possibility of a successful outcome; ie whether the Authority’s decision could realistically have been different: SZMTA at [68], [69] and [71].

41    See also Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 Kiefel CJ, Gageler and Keane JJ (at [30]).

42    The two letters were before the delegate. Their content was not “new information” within the meaning of s 473DC. On a fair reading of the Authority’s reasons, the letters were not treated in that way. Rather, the Authority identified that certain parts of the submissions provided to it by the appellant’s migration agent relating to the meaning and significance of the letters had not been previously advanced before the delegate. The Authority proceeded on the basis that the submissions were new information to the extent that they added to or differed from submissions or evidence that had been previously provided. The Authority went on to assess whether the recent submissions fulfilled the conditions for the receipt of new information under s 473DD of the Act. No error has been demonstrated in that approach.

43    On appeal, as at first instance, the appellant contended that the Authority could not apply s 473DD of the Act to the submissions about the letters without giving proper consideration to the letters themselves, which it could not do without first obtaining possession of them. I do not accept that contention.

44    In respect of the denouncement letter, the Authority accepted that the content of the letter was as the migration agent had asserted in the submissions. That asserted content differed from the meaning and use to which the letters had been put during the course of the interview with the delegate. The Authority was entitled to have regard to both the fact and significance of that difference.

45    It has not been shown that the outcome of the Authority’s assessment of the submissions as “new information” under s 473DD of the Act would have been any different had the letters been among the materials provided to the Authority by the Secretary.

46    Similarly, as the primary judge said, the Authority accepted the appellant’s assertion that the DDMI Letter was to the effect that J had been a member of the Iraqi Security Forces and that he was missing and was presumed dead. The Authority concluded that there was violence involved in his disappearance. It did not adopt the delegate’s finding that the cause of death was speculative. On a fair reading of the Authority’s reasons (particularly the passages extracted at [25] – [26] above), the Authority should be understood to have proceeded from the factual footing that J’s death was related to his role in the Iraqi Security Forces, including his work as a liaison officer with the coalition forces. It did not go so far as to state that J had been murdered, but nor did the DDMI Letter.

47    In the circumstances, the primary judge was correct to conclude that the reference in the DDMI Letter to a belief that J had been kidnapped was not information that could have altered the outcome. Contrary to submissions made before this Court, the letter did not contain any express statement to the effect that J had been murdered.

48    As to the documents referred to in ground 1(b), it was for the appellant to establish that there were additional documents in existence that the Authority was obliged to consider but did not. The additional documents were not adduced in evidence in the proceedings before the primary judge. Accordingly, the appellant could not discharge his burden of demonstrating that any failure by the Secretary to comply with any obligation to provide the documents to the Authority affected the exercise of the Authority’s powers of review in a way that might have deprived the appellant of a successful outcome. It was open to the appellant to invoke compulsive processes in the proceedings at first instance to obtain such documents as were necessary to establish jurisdictional error on the part of the Authority in connection with any additional missing materials. The grounds of appeal do not allege appealable error by the primary judge in failing to make any orders compelling the production of additional documents.

49    It follows that the first two grounds of appeal must be rejected.

GROUND 3

50    This ground concerns the Authority’s conclusions as to two new claims that had been made by the appellant’s migration agent. They will be dealt with separately.

Proposed unmarried relationship

51    The appellant submitted that the Authority committed jurisdictional error by characterising the information concerning the appellant’s relationship as new information. It was submitted that the claim that the appellant would be subject to persecution by reason of his living in an unmarried relationship with his partner was one that fairly arose on the materials before the delegate and so ought to have been considered as part of his substantive claims. I do not accept that submission. The appellant first disclosed his relationship with his partner to the delegate in the course of an interview conducted in September 2017. He told the delegate that his partner then resided in Darwin and that she had no intention of moving to Sydney to reside with him there. There was no suggestion that she would move to Iraq to live with the appellant should he be removed from Australia. There was no information before the delegate as to the partner’s religion, nor as to her preparedness to relocate, nor as to her willingness to reside with the appellant there. The prospect that the partner would do so simply did not arise on the material before the delegate. The Authority was correct to characterise the information as “new information” and to assess it against the criteria in s 473DD of the Act.

52    It was then submitted that the Authority erred in concluding that the information was not personal credible information. It was submitted that the information provided to the delegate and the information provided to the Authority ought not to have been regarded as inconsistent because relationships “change and deepen over time”. That submission is not in accordance with the submissions that had been made to the Authority. Those submissions stated (as an alternative proposition) that the consequences of the appellant residing with his partner in an unmarried relationship in Iraq had not been fully explored before the delegate because the appellant could not have anticipated that his visa application would be rejected.

53    The Authority’s conclusion that the information was not “credible personal information” for the purposes of s 473DD(b)(ii) was based on its conclusion that it was not plausible that the appellant’s partner now intended to accompany him to Iraq. The appellant’s new claim in relation to his partner was not accompanied by evidence that would render it plausible that his partner would have formed that intention, having previously demonstrated no intention to relocate from Darwin to Sydney to live with the appellant. In the circumstance, it was open to the Authority to conclude that the information was not credible and so refuse to consider it as a substantive question arising on the review.

Tattoo

54    As explained by the majority in Hossain, “jurisdictional error is an expression not simply of the existence of an error but of the gravity of that error” (at [25]). A failure to comply with a condition attending the exercise of a statutory power must be shown to be material in the sense that compliance with the condition could have resulted in the making of a different decision: Hossain at [31] (Kiefel CJ, Gageler and Keane JJ); Shrestha v Minister for Immigration and Border Protection (2018) 264 CLR 151 at [10] (Keifel CJ, Gageler and Keane JJ). If the Authority misconstrues or misapplies s 473DD and so misapprehends its power to receive new information, the error will be material if the proper application of the provision may have led to the receipt of the new information by the Authority and if consideration of the information may have affected the outcome of the Authority’s decision on the review.

55    Section 473DD(b)(ii) of the Act imports similar notions of materiality. It confers upon the Authority the task of determining whether information not previously provided to the original decision-maker may have affected the consideration of the referred applicant’s claims, had the information been known to the original decision-maker (here, the Minister’s delegate). Proper performance of the Authority’s task depends upon a correct understanding of the visa applicant’s claims as well as a correct understanding of the nature and content of the new information and its potential significance to the claims. It also depends upon a correct understanding of the visa criteria.

56    The appellant submitted that the Authority erred in misapplying s 473DD of the Act, including because it failed to identify the significance of the tattoo (and the submissions made in relation to it) to his claims. That submission should be accepted. I have concluded that the Authority erred in the application of s 473DD in numerous respects. For the reasons explained below, the errors are material and so properly characterised as jurisdictional. The appeal should be allowed on that basis.

57    The Authority accepted the fact that the appellant had a tattoo. The reasons must also be understood as involving acceptance of the appellant’s explanation for concealing the tattoo from view of the delegate for fear of being judged as a “bad” person by Australian authorities. The Authority turned that explanation back on the appellant, concluding that he would conceal the tattoo from the authorities in Iraq for “similar reasons”. The Authority said that the appellant had “proved [sic] no information to support the assertion that he will be at risk because of his tattoo”. It concluded that the appellant had not demonstrated that the existence of the tattoo comprised “credible personal information which may have affected consideration of his claims”.

58    The Authority’s reasoning involves a misapplication of s 473DD(b) of the Act. It is well established that the conditions in subs (b)(i) and (b)(ii) are alternatives, such that only one of them need be satisfied. The Authority’s reasoning does not contain any conclusion as to whether or not the existence of the tattoo or its implications was information that “was not and could not have been” provided to the delegate within the meaning of subs (b)(i). The appellant’s asserted fear of the consequences of revealing the tattoo to the delegate appears to have been accepted by the Authority as a matter of fact, and yet no consideration is given as to whether the appellant’s explanation was sufficient to satisfy the first of the two alternate conditions in subs (b). If the first of those conditions was fulfilled, there would be no occasion to consider the alternate criterion in s 473DD(b)(ii).

59    I am also satisfied that there is error in the application of s 473DD(b)(ii) in any event.

60    The fact of the tattoo on the appellant’s right arm and the implications of the tattoo for the appellant was properly to be regarded as “personal information”. The Authority did not suggest otherwise, nor did it state that the information was not “credible”. Its conclusion that s 473DD(b)(ii) was not satisfied turned on its assessment that the information could not have affected the consideration of the appellant’s claims. That conclusion appears to rest on two bases, namely that the appellant could and would conceal the existence of the tattoo as a matter of fact and that he had provided no information to support the assertion that he would be at risk because of it. In drawing the latter conclusion, the Authority failed to have regard to the information provided at [21] of the appellant’s written submissions about the image depicted in the tattoo and its asserted meaning and implications:

TATTOOS. The Applicant has provided evidence that he fears harm on the basis of his full arm tattoo which is of a ‘spiritist’ genre with a skeleton depicted as ruling on a throne with a crown, which appears in the form of a ‘king of death’ and which would be considered as satanic, and would be the cause of him being punished for non-conformity with the requirements of the society and Shari’a. The Applicant’s representative indicated that the Applicant has suffered psychological harm [submissions page 10], and it is noted that the Applicant comes from a culture in which it is taboo (Haram), and thus makes a person religiously unclean. The fact that the Applicant’s brother also has similar tattoos of large skulls on a full arm tattoo means the brothers would be considered together as Satanists, “emos”, adulterers, and punished. The Applicant has provided further information in his statutory declaration why this information could not be provided previously and of the significant impact these tattoos would create in Iraq and how it would place his life at risk. The reasons why the Applicant and his brother hid their tattoos from the Delegate was because of coming from a culture where such tattoos with motifs which would be considered as satanic lead to deep discrimination against an individual. For this reason the Applicant and his brother felt that they could not show their tattoos to persons in Authority including the Delegate, out of fear of being judged for that and considered as ‘bad people’.

61    By that submission, the appellant asserted the additional facts that were said to give rise to the risk of harm in connection with the tattoo. The submissions complained that the delegate had not considered the appellant’s claim to be “secularised” (other than his claims related to his occupation as a hairdresser). The submissions ought to have been understood by the Authority as relevant to the claims (made as early as December 2016) to fear harm because of his moderate religious and political beliefs. The claims were expressed in writing as follows:

It is our central submission on behalf of our client that there can be no doubt that if he could be returned to Iraq he would fact a real risk of sever persecutory treatment. [The appellant] has genuine and well-founded fears of suffering severe harm, if returned to Iraq, on the grounds of:

Religion: Our client is a moderate and now secularised Shia Iraqi who is considered to be hostile to the dominant Shia fundamentalist Islamists in the Shia militias and therefore kafir, an apostate enemy of Islam who deserves only death, no matter what Iraqi civil law may prohibit.

…

Political opinion: Because of his secularised and now fugitive status, he would also be imputed to be hostile to the radical Islamist goal of establishing Iraq as an Islamic state under an Islamic regime based only on Sharia’s law.

The cumulative effect of these elements of his status creates a heightened profile for him which realistically and appreciably increase the risk of severe persecutory treatment against him, particular at the hands of local Shia radical armed groups who dominate life in [place name redacted] and elsewhere in Iraq.  …

62    The submissions went on to assert that the emergence in Iraq of a religiously inspired sect demonstrated “a radical Shia hegemony which is an alarming threat to moderate Iraqis like our client”. The submissions referred the delegate to multiple sources of country information in support of the appellant’s claims. The Authority was incorrect in its conclusion that no material had been provided to support the assertion that the appellant would be at risk because of the tattoo. The Authority did not grapple with the assertion that the tattoo, if seen, would expose the appellant as a person opposed to the religious and political ideals of extreme Islam.

63    The consequences of those errors cannot be avoided by concluding that the appellant could and would conceal his tattoo from view. To reason in that way was to misapprehend the statutory definition of a refugee in the manner explained from [5] of these reasons.

64    The Authority’s conclusion that there were no exceptional circumstances warranting consideration of “this claim” is also affected by error, in three respects. First, the existence of the tattoo was not a claim. It was an objective fact that was capable of affecting the Authority’s determination of the appellant’s extant claim to be a person associated with views hostile to radical Islamic ideals. Second, the Authority incorrectly concluded that the information provided to the delegate had not included any claim that the appellant “would in any way be considered a non-conformist in Iraq”. The claim advanced by the appellant was that he was “moderate and now secularised”. That claim had previously been supported by evidence that the appellant strongly opposed Islamic ideals and that he was in fact hostile to the goal of establishing an Islamic state under Sharia law. The claim before the delegate was to the effect that the appellant’s religious and political beliefs were non-conformist. Third, in determining whether there were no exceptional circumstances warranting consideration of the information, the Authority gave no consideration to the explanation the appellant had advanced for not revealing the existence of the tattoo to the delegate. As observed earlier, that explanation appears to have been accepted by the Authority, if only for the purpose of supporting its conclusion that the appellant was able to conceal the tattoo with his clothing if he feared the consequences of revealing it. The reasons of the Authority indicate that no consideration was given to the question of whether the explanation for not revealing the tattoo at an earlier time constituted an “exceptional circumstance” within the meaning of s 473DD(a) of the Act.

Materiality

65    It is apparent that the Authority did not consider the tattoo to have any bearing on the outcome because of the appellant’s demonstrated ability to conceal it with his clothing for the course of the interview with the delegate. To illustrate the error in that aspect of the Authority’s reasoning, it is convenient to extract what the Authority said later in its reasons of the appellant’s claims to fear persecution by reason of his status as a religious moderate (at [24]):

I have accepted that the applicant is a moderate/secular Shia Muslim. Considering whether the applicant faces harm from Shia militias or Shia armed groups due simply to being a Shia, I am not satisfied on the material before me that this is the case. The applicant claims that he is opposed to fundamentalist groups and ideals, including the radical Islamist goal of establishing Iraq as an Islamist state under an Islamic regime based only on Sharia law. I accept that he holds these views but do not accept that he has openly or publicly espoused or declared them. Country information indicates that in Daesh/ISIS controlled areas, Sunni civilians who do not support that organisation or its ideals/religious views face a high risk of violence including death, however there is no indication in the review material that this occurs to Shias in areas where Shia militias are prevalent. The applicant claims that he will be perceived as ‘un-Islamic’ and consequently targeted by Shia militias due to working as a barber undertaking Western-style haircuts but I have not accepted this claim. I am not satisfied that the applicant faces a real chance of harm on the basis that he is a moderate or secular Shia Muslim.

(footnotes omitted)

66    Had the existence of the tattoo been considered in the context of the above claims, it would have been necessary for the Authority to consider not only its existence per se but also the imputations conveyed by its design:  AHB16 v Minister for Home Affairs [2018] FCA 2006 at [31] – [33]. In the present case, the design was said to outwardly identify the appellant as a Satanist who was opposed to the religious and political ideals of extreme Islam.

67    It would then have been necessary to ask whether it was reasonable for the appellant to modify his manner of dressing on each day of his life in such a way that a tattoo situated on his right arm would never be revealed to the authorities in Iraq. The circumstance that the appellant was able to conceal the tattoo for the period of time over which his interview with the delegate was conducted might be relevant to that enquiry, but it could not on any reasonable view be determinative of it. Whether information about the tattoo could have affected the outcome of the delegate’s decision did not turn merely on the question of whether it was possible for the appellant to wear clothing that would in the ordinary course conceal the tattoo from public view for periods of time. Rather, the questions raised by s 5J(3) of Act include whether permanent concealment of the tattoo might constitute a modification of behaviour the appellant could reasonably take so as to avoid a real chance of persecution in his receiving country, and whether such modification would conflict with a characteristic fundamental to the appellant’s identity or conscience or conceal his innate or immutable characteristic or his true religious beliefs. As McHugh and Kirby JJ said in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 at [40], “persecution does not cease to be persecution … because those persecuted can eliminate the harm by taking avoiding action within the country of nationality.” In my view, the enactment of s 5J of the Act should be understood as giving effect to the same principle.

68    Relatedly, it would be necessary to consider whether the asserted risk of persecution was or was not enhanced by the possibility that the tattoo may be discovered inadvertently or involuntarily. Had those questions been considered by the delegate, it could not be said that they could not have affected the consideration of the appellant’s claims within the meaning of s 473DD(b)(ii). It was not open to the Authority to conclude otherwise.

69    For similar reasons I am satisfied that the errors affecting the interpretation and application of s 473DD of the Act to be material to the outcome of the review conducted by the Authority so that the errors are properly to be characterised as jurisdictional. Had the Authority correctly applied s 473DD of the Act, it might have considered the information concerning the fact and significance of the tattoo in a manner that may have affected the outcome of its review.

70    Little has been said of the reasons of the primary judge in relation to this issue. The reasons of the primary judge do no more than to recite the reasons of the Authority and to state (without elaboration) that the findings of the Authority in connection with the tattoo were open to it. The primary judge erred in rejecting the ground for judicial review relating to the application of s 473DD of the Act to the new information concerning the tattoo.

71    The third ground of appeal is upheld to that extent. It follows that the appeal should be allowed.

Associate:

Dated:    23 September 2020