FEDERAL COURT OF AUSTRALIA

BII17 v Minister For Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1376

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    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

ANASTASSIOU J:

1    The appellant appeals from a decision of the Federal Circuit Court: BII17 v Minister For Immigration & Anor [2019] FCCA 1788. The Circuit Court dismissed an application for judicial review of a decision of the second respondent, the Immigration Assessment Authority, which had affirmed a decision made by a delegate of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs not to grant the appellant a temporary protection visa. The appellant seeks leave to appeal from the Circuit Court upon a ground not advanced before that Court.

2    For the reasons that follow leave to rely upon the new ground is refused and the appeal is dismissed.

Background

3    The appellant is an Iraqi citizen. On 13 October 2012 he entered Australia as an unauthorised maritime arrival and was placed in a detention centre before being granted a bridging visa.

4    On or around 22 March 2016 the appellant applied for the visa. On 19 December 2016 a delegate of the Minister refused to grant the visa.

5    The application was referred to the Authority. On 24 February 2017 the Authority affirmed the delegate’s decision to refuse the visa. The appellant’s application for judicial review to the Circuit Court was rejected. As stated above, the ground relied upon by the appellant before the Circuit Court was different to the ground for which leave is sought in this Court. Accordingly, it is unnecessary to consider the decision of the Circuit Court further.

Decision of the Authority

6    The factual findings of the Authority were not in dispute in this appeal. However, so much of the background facts as are necessary to understand the appeal are set out below.

7    The authority found that the appellant is a Sunni Muslim. Before arriving in Australia he resided in Hay Al-Thawra in Iraq, where his father ran a music shop. The appellant and his younger brother worked at the music shop, with the appellant working there three days per week since 2008 after completing his studies.

8    In 2010, after the fall of the Saddam regime, a local Shi’a militia demanded his father close the shop as it was un-Islamic. His father refused, and in September of 2010 was murdered by the militia.

9    The remainder of the family, including the appellant’s younger brother, then fled Hay Al-Thawra and began occupying an abandoned mud building in Ur-Beid, Iraq. They were informed by friends in Hay Al-Thawra that the militia was still looking for the appellant’s younger brother. The appellant’s younger brother left Iraq for Australia, and was subsequently granted a protection visa on 20 September 2011.

10    The Authority accepted the appellant’s evidence up to this point. However, it did not accept the appellant’s evidence regarding the events said to have led to the militia turning their attention to the appellant.

11    The appellant stated that in May 2012 after his brother had successfully fled Iraq, he received word from his friends that the militia were now looking for him due to their anger at his brother’s escape. He gave evidence that shortly after receiving this information, a note was put under the door of his dwelling by the militia, threatening to kill him. He subsequently fled on a false passport to Australia, as referred to above.

12    In rejecting the evidence of the appellant’s reasons for leaving Iraq, the Authority said:

8.     In terms however of the subsequent targeting of the applicant, the reasons as given make no sense. The applicant’s evidence was that there had been no indication that he had been of any interest to militia groups until May 2012, a year after [the appellant’s brother] had left. At this time he received word from his friends that the militia were looking for him. The militia also placed a threat letter under the door of the family’s mud-brick dwelling in Ur-Beid. The applicant did not know how the militia had managed to locate him. At the PV interview the delegate asked the applicant why, if the militia were seeking him to kill him, they did not do so when they located him, rather than leaving him a letter. The applicant responded that they wanted him to live in fear, also they wanted [the appellant’s brother] to come back. The delegate asked how, in view of that, he had concluded that the militia intended to kill him. The applicant responded that he knew that from the letter. This does not answer the question of why the militia did not in fact kill him once they had located him. I do not accept that the applicant was of interest to a militia group or that he received a threat letter as stated.

13    In considering whether the appellant was eligible for protection from a well-founded fear of persecution, following from the above, the Authority held that the appellant had not been threatened personally. The Authority stated:

12.     I accept that the applicant’s father received threats and was consequently killed in September 2010, due to his business of selling or hiring out musical instruments. I also accept his father was threatened in 2010 and did not comply with the militia’s demands that he cease his “un-Islamic” activities. However, I am not satisfied that the applicant has been threatened with harm in the past. Following his death, neither [the appellant’s brother] nor the [appellant] sought to continue their father’s business. There is no reason why he would now be specifically targeted by the militias threatening him on the basis of his past casual work, as the demands were complied with.

14    The Authority went on to have regard to how views in Iraq about music and the arts have changed since 2010. These findings were based upon a 2012 report by the United Nations High Commissioner for Refugees titled “UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Iraq, May 2012” (the Report).

15    Briefly pausing the description of the Authority’s reasons, two things need to be said about the Report. First, as is apparent, this report was published after the appellant’s brother was granted a protection visa. Second, this report was not considered by the Minister’s delegate in rejecting the appellant’s application, and as such constituted ‘new information’ before the Authority within the meaning of s 473DD of the Migration Act 1958 (Cth). The Authority’s use of the Report in alleged breach of s 473DD of the Act is the sole ground of review now pressed.

16    On 7 February 2017, before making its decision, the Authority invited the appellant to comment on the Report. The appellant did so by letter dated 20 February 2017.

17    In relation to the Report, the Authority said:

13.     Further to this, country information indicates that since his father’s death in 2010 there has been a change in how music and the arts are viewed. After years of reported persistent attacks against artists, actors and singers for their (perceived) engagement in “un-Islamic” or “Western” activities, Iraq’s cultural scene is said to be flourishing again. Artists report restrictions resulting from intolerance and strict interpretations of Islamic values, rather than by direct attacks. In January 2011 the Minister of Education reversed a decision of his predecessor to ban music and theatre classes in art institutes. The applicant was invited to comment on this information.

…

15.     Following the closing of the shop, the applicant and his family moved to Ur-Beid outside of Nasiriyah but remained in the same general area for some two years without further action being taken against him. I acknowledge that the death of his father was distressing to the applicant and his family, such that they felt it necessary to flee at the time, however given the change in attitude towards music and the arts, and the passage of time since his departure from Iraq, I am not satisfied there is a real chance that he would be harmed now or in the foreseeable future because of his past activities assisting his father in the instrument sale/hire shop. I also note that the decision to grant a permanent protection visa to the applicant’s brother [redacted] was made on 20 September 2011. This predates the publishing of the country information referred to at paragraph 13 above, which indicates a lessening of the intolerance surrounding music and the arts.

The appeal to this Court

18    As noted above, the appellant sought to press only one ground of appeal not raised below, and abandoned his ground of appeal before the Circuit Court. The new ground was:

The Second Respondent misunderstood the nature of its powers, asked the wrong question, and erred in its application of section 473DD of the Migration Act 1958 (Cth) ("the Act") when it determined that it should take into account and rely upon "new information" when making its decision, and thus erred in the exercise of its jurisdiction.

Particulars

1.1 The Second Respondent obtained of its own motion the "UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Iraq", published in May 2012, which was, by the time of the IAA's decision, 4 and 3/4 years earlier.

1.2 The UNHCR Eligibility Guidelines contained, or were, "new information" for the purposes of sections 473DC and 473DD of the Act.

1.3 The Second Respondent could only consider this new information if there were "exceptional circumstances" justifying the admission and consideration of that information (473DD(a) of the Act).

1.4 The Second Respondent identified one "reason" why the Guidelines should be considered, which was that the Minister's delegate had referred to the UNHCR Eligibility Guidelines of 2009 (which the delegate had referred to for the purposes of corroborating the Applicant's account of what happened to his father in 2010), and the 2012 Guidelines were the most recent.

1.5 The Second Respondent did not ask whether the existence of a more recent set of Guidelines in a particular series than one mentioned in the decision under review constituted "exceptional circumstances", in the sense of circumstances out of the ordinary or unusual, as required under section 473DD(a).

1.6 If the Second Respondent had asked that question, and/or correctly understood the nature of the question to be asked, and/or the nature of the statutory test to be applied, the Second Respondent could not have concluded that the existence of this country information constituted "exceptional circumstances", in the sense of unusual, or out of the ordinary.

19    The above ground raises three issues:

(1)    whether leave should be granted to amend the notice of appeal to advance the new ground;

(2)    whether the Authority erred by using the Report in non-conformity with s 473DD; and

(3)    whether, if the Authority so erred, the error was material to the Authority’s determination.

20    I deal with each question in turn, though they overlap.

Should leave to amend be granted?

21    The principles governing leave to amend are well established. The key consideration is whether it is expedient in the interests of the administration of justice to allow a new ground to be raised on appeal: Gupta v Minister for Immigration and Border Protection (2017) 255 FCR 486 at [81] per Gilmour and Mortimer JJ. More specific considerations were explained by the Full Court in VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 at [48] (as re-affirmed in Sun v Minister for Immigration and Border Protection [2016] FCAFC 52; 243 FCR 220 at [89]-[90] and Gupta at [81]-[82]):

The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. …

22    The appellant did not seek to explain why the ground had not been raised below, save to identify that there was a different legal team with carriage of the matter on appeal. The Minister did not submit that he suffered any particular prejudice as a result of the new ground being raised, however, the Minister submitted there would be prejudice to the legislative scheme under which the decision under review was made. The Minister also submitted that although typically leave to amend requires consideration of the merits of the appeal, in the context of the presently relevant legislative scheme it was not required. Given the forgoing it is convenient to consider the legislative scheme first.

23    As the appellant arrived in Australia as an unauthorised maritime arrival between 13 August 2012 and 1 January 2014, his application was governed by Part 7AA of the Act, being subject to the “Fast track review process” set out in that Part. Division 2 of Part 7AA provides that, after making a decision about an application, the Minister must refer it as a fast track decision to the Authority. The Authority is to be provided certain specific material, largely but not exclusively consisting of the material that was before the Minister: s 473CB. Division 3 further specifies that the review of the decision is to be “on the papers”, and the requirements of the Division 3 are to be taken as an exhaustive statement of the natural justice hearing rule in application to fast track decisions. Division 3 contains s 473DD and is discussed further below.

24    A review by the Authority is not akin to full merits review in the Administrative Appeals Tribunal: BYA17 v Minister for Immigration and Border Protection [2019] FCAFC 44; 269 FCR 94 at [57]. Though the subject matter of the review by the Authority is the merits of the material before the Minister, the Authority is restricted in its power to consider information not considered by the Minister (s 473DD considered further below). Further, the only powers the Authority has upon the conclusion of a review are to affirm the decision or remit it for reconsideration with or without directions; the Authority cannot remake the decision itself: s 473CC.

25    Following a decision by the Authority, the applicant may seek judicial review in the Circuit Court. The applicant may then seek to appeal to this Court, which has no original jurisdiction in reviewing a fast track decision: s 467A of the Act. The jurisdiction of this Court is limited to its appellate jurisdiction: see ss 24 and 25 of the Federal Court of Australia Act 1976 (Cth).

26    The Minister also relied upon case law explaining the role of an appellate court considering whether to grant leave to amend when exercising appellate jurisdiction.

27    In AXL16 v Minister for Border Protection [2018] FCA 208 Perram J declined to determine a substantive ground of appeal that had not adequately been considered by the primary judge, his Honour instead remitting the matter back to the Circuit Court. His Honour emphasised the distinct role of an appellate court in his reasons as follows (at [26], as affirmed by the Full Court in BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94; 263 FCR 292 at [26]-[27]):

That leaves the substantive ground pursued in the Court below. In light of the above findings this case has not yet been adequately tried. The Federal Court of Australia Act 1976 (Cth) confers appellate, not original, jurisdiction on the Court in cases such as the present: s 24(1)(d). The exercise of appellate jurisdiction is concerned with the correction of error: … It would erode the appellate nature of this Court’s jurisdiction if it were routinely to carry out the Federal Circuit Court’s work for it: … On this basis I decline to decide the substantive ground.

(citations omitted)

28    In AAM15 v Minister for Immigration and Border Protection [2015] FCA 804; 231 FCR 452 Perram J declined to grant leave to pursue additional grounds on appeal. His Honour explained the difficulties with an appellate court hearing and determining such matters (at [14], affirmed by BZD17 at [28]):

One is confronted, then, with the situation that this Court is being called upon in the exercise of its appellate jurisdiction to decide the entirety of the matters which were for trial, including two new grounds, in circumstances where none of the issues to be decided in this Court were ever decided in the Court below. Section 476A of the Act explicitly removes this Court’s original jurisdiction in cases of this kind. Of course, the ability of this Court to hear fresh grounds of appeal or to entertain a notice of contention is not circumscribed by s 476A as they are both aspects of the Court’s appellate jurisdiction. But s 476A is, I think, relevant to whether I should, by leave, permit fresh grounds and a notice of contention when to do so will mean that this Court performs the trial court’s entire function. As a matter of substance, that is what s 476A appears aimed at preventing. There is this further matter, too: Pt 8 of the Act, which regulates judicial review of refugee determinations, ensures that there is one substantive trial in the Federal Circuit Court followed by one substantive appeal to this Court followed by a more cursory review by the High Court. If this Court, in substance, determines a case at first instance by entertaining fresh grounds and a notice of contention this structure is thwarted because no appeal lies to the High Court other than by special leave which is rarely granted and then only on the grounds set out in s 35A of the Judiciary Act 1903 (Cth). If the matter is effectively tried in this Court then the appellant is denied a layer of appellate scrutiny.

29    The Full Court in BZD17 held that the approach taken by Perram J in AMA15 was consistent with the view that following advent of special leave of appeal to the High Court, intermediate appellate courts should be considered final courts of appeal (at [29], the Full Court citing Morris v R (1987) 163 CLR 454 at 475 (Dawson J) and Smith Kline & French Laboratories (Aust) Ltd v Commonwealth (1991) 173 CLR 194 at 217-218). Their Honours went on to state at [30]:

We agree that the considerations identified in AXL16 and AAM15 tell strongly against this Court ordinarily determining substantive grounds of judicial review which the FCC has failed to determine. Nonetheless in the circumstances of this case, we consider that there are a number of compelling factors against remitting the matter to the FCC. First, both parties submitted at the hearing that they wish the substantive issues on the appeal to be determined by this Court. Secondly, this is a case where, for the reasons given below, the errors are so apparent from the Tribunal’s reasons that there would be no apparent utility in remitting the matter to the FCC. As such, we consider that the overarching purpose in s 37M of the Federal Court of Australia Act 1976 (Cth) would best be served by this Court determining the substantive grounds of review of the Tribunal’s decision, as reflected in Grounds 1 and 2(c) of the amended grounds of appeal.

30    The first respondent drew particular attention to the judgment of Flick J in CWD16 v Minister for Immigration and Border Protection [2018] FCA 578. CWD16 concerned an appeal against a judgment of the Circuit Court denying an application for judicial review against a decision of the Authority as in the present case. The similarities between CDW16 and the present case continue: both appellants were represented by a lawyer before the Circuit Court; both appellants were represented by different counsel at the hearing before this Court; and, both appellants expressly abandoned reliance upon the grounds previously advanced before the Circuit Court, instead seeking to agitate breaches of s 473DD of the Act.

31    Flick J considered two factors to weigh in favour of granting leave, both of which are also present in the current appeal. First, that the new grounds sought to be advanced did not require fresh evidence on appeal. Second, that the ground concerned a mandatory provision of the regime (s 473DD).

32    Despite these factors, his Honour did not grant leave. His Honour set out the following reasons why leave should be refused (at [28]):

•    the application to amend is not supported by any affidavit setting forth any reason for seeking leave to amend or any explanation as to why the new argument sought to be raised on appeal was not previously relied upon;

•    although the Appellant was not represented by Counsel before the Federal Circuit Court, he was represented by a solicitor;

•    there is an absence of any explanation for the delay in proposing to amend the existing Notice of Appeal, the appeal having been set down for hearing in late December 2017 and the proposed amendment not being foreshadowed until shortly before the hearing of the appeal; and

•    the facts relied upon to support the proposed new argument placing reliance upon s 473DD of the Migration Act do not expose any self-evident error in the manner in which the Authority dealt with the 9 August 2016 report – the characterisation by the Authority of that report as not constituting “new information” and as “simply recount[ing] the applicant’s own claims” was an assessment consistent with the claims being made.

Also of relevance is the fact that the grant of leave to amend in the circumstances of the present case would have a tendency to:

•    prejudice the scheme of Pt 7AA of the Migration Act by occasioning delay in the resolution of “fast track reviewable decisions” … ; and

•    impermissibly seeking to transfer into this Court when exercising its appellate jurisdiction a solitary argument that it could not have entertained in its original jurisdiction – that tendency only being underlined in the present proceeding by reason of the abandonment of the only existing Ground of Appeal which was otherwise relied upon in support of invoking the appellate jurisdiction of this Court.

Also of relevance is the fact that:

•    irrespective of Pt 7AA of the Migration Act, there is a legitimate public interest in cases of the present kind being resolved as expeditiously as a proper consideration of the case permits …

(citations omitted)

33    All of the above matters are apposite in the present case save that here the appellant was represented by counsel not a solicitor before the Circuit Court. In addition in this case, the primary judge stated at [24] that:

The Authority found that there were exceptional circumstances to justify the consideration of that new information, being the country information upon which it relied. No challenge had been made to that finding by the applicant.

34    Though no transcript was in evidence, I infer from this that the appellant’s then counsel made a deliberate forensic decision not to challenge that finding. See Singh v Minister for Immigration and Border Protection and Another [2018] FCAFC 52; 261 FCR 556 at [61].

35    For the foregoing reasons leave to amend is denied.

36    In coming to this conclusion I place little weight in the appellant having abandoned the ground advanced below. As described by counsel for the appellant, there is an ‘empty formalism’ in drawing a distinction between adding a ground while retaining a hopeless ground run below, and replacing the hopeless ground with a substantive one on appeal. The Court is assisted by parties pressing only those grounds which have merit, and not burdening it with having to determine hopeless ones.

Did the Authority have regard to the Report in breach of s 473DD?

37    Given the forgoing I need not consider in any detail the merits of the substantive ground of appeal. However, I do so as it raises an important point of principle concerning the reasons to be provided when determining whether ‘exceptional circumstances’ exist to admit ‘new information’.

38    The appellant challenges the use of the Report, being ‘new information’, on the basis that the Authority did not apply the correct test for consideration of “new information” under s 473DD as above. That section provides:

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.

39    The Minister did not cavil with the characterisation of the Report as “new information”, however submitted there was no error in the Authority’s approach. The Authority considered the admissibility of the Report at paragraphs [3] to [5]:

3.     I have had regard to the material referred by the Secretary under s.473CB of the Migration Act 1958 (the Act). No further information was received from the applicant.

4.     I have also obtained additional information, this being the UN High Commissioner for Refugees (UNHCR) "UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Iraq”, published 31 May 2012. The delegate referred only to the previous paper: "UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Iraq" of 1 April 2009. The 2009 guidelines referred to by the delegate were superseded by these published in 2012 and these remain the current UNHCR guidelines, I consider that there are exceptional reasons to justify considering it.

5.     On 7 February 2017 I invited the applicant to comment on the part of these guidelines relating to Individuals Perceived as Contravening Traditional Practices or Social Mores. On 22 February 2017 the applicant provided a response. I am satisfied that the information contained within the applicant’s response was not before the Minister and could not have been provided before the delegate’s decision. The information relates to issues that have been raised with the applicant after the delegate’s decision. I am satisfied that there are exceptional circumstances for considering it.

40    The appellant alleges the Authority failed to properly satisfy itself of the presence of ‘exceptional circumstances’ as required by s 473DD(a). This submission is put on several bases.

41    The appellant first submits that the reference in paragraph [4] to ‘exceptional reasons’ reflects that the Authority proceeded on the basis of a misstatement of the law and, therefore, its decision is infected with jurisdictional error. The Authority’s consideration of ‘reasons’ was said to be different to ‘circumstances’ in that ‘reasons’ directs attention to the Authority’s reasons for using the information, whereas ‘circumstances’ casts a wider net, catching matters which would affect the fairness of using the material to the applicant.

42    The Minister submitted that drawing a distinction between ‘reasons’ and ‘circumstances’ in the present case would be to be reading the reasons of the decision maker with “an eye keenly attuned to the perception of error” as warned against by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at [30]. This submission was buttressed by reference to paragraph [5] of the Authority’s decision record where the Authority concludes there are “exceptional circumstances” justifying the consideration of the new information.

43    The Minister’s submissions are preferable on this question. Though one can imagine a case where consideration of ‘reasons’ and ‘circumstances’ would be indicative of error, this is not such a case.

44    The appellant also submitted that the Authority failed to adequately identify the ‘exceptional circumstances’ it relied upon in meeting the test in s 473DD and that none could be present in this case. In support of this contention the appellant drew upon Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 264 CLR 217, where the plurality Gageler, Keane and Nettle JJ said at [30]:

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

(citations omitted)

45    The appellant submitted that the present circumstances could raise to the level described in Plaintiff M174 as there was nothing exceptional or out of the ordinary about the Report or the facts surrounding its use by the Authority. It was said that relying on an older version of a report in circumstances such as present was nothing unusual, let alone exceptional.

46    The Minister submitted that the appellant’s submissions on this point lacked a clear basis in a category of jurisdictional error and were really an attack on the merits of the Authority’s exercise of its decision making power upon a merits review. Further, the Minister relied upon s 473EA of the Act, which governs the Authority’s decision and written statement, as a basis for the Authority to make ‘procedural decisions’ without providing reasons. Section 473EA does not, in terms, specify this power. However, it has been so interpreted by the High Court in BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; 93 ALJR 1091. The Minister drew particular attention to the last sentence of [16] of the judgment of the Court. Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ discussed the application of s 473EA as follows:

Two further provisions of Pt 7AA are also appropriate to be mentioned. Section 473EA, which is located within Div 4, requires a decision of the Authority on a review under Pt 7AA to be accompanied by a written statement setting out both "the decision of the Authority on the review" and "the reasons for the decision". The analysis in Minister for Immigration and Citizenship v SZGUR [(2011) 241 CLR 594] of the materially identical requirement in s 430 for the Refugee Review Tribunal to give a statement of the reasons for its decision in a review under Pt 7 supports two conclusions about which there is no dispute in the appeal. One is that the decision of the Authority on the review to which s 473EA refers is the ultimate decision of the Authority under s 473CC(2) either to affirm the fast track reviewable decision referred to it or to remit the decision referred to it for reconsideration in accordance with such directions or recommendations as are permitted by regulation. The other is that the Authority, in giving reasons for that ultimate decision to affirm or remit, is not required to give reasons for the exercise or non-exercise of a procedural power such as those conferred on it by s 473DC(1) or s 473GB(3).

(emphasis added and citations omitted)

47    Given that the Authority need not give reasons for the exercise of a procedural power, including s 473DD, the Minister submitted that the only source of error for a decision under that section is where the decision record indicates the Authority considered new information without considering the application of s 473DD at all or stating a conclusion as to the presence of exceptional circumstances.

48    It is notable that the High Court in BVD17 does not refer to s 473DD as being a ‘procedural power’ for which reasons need not be given. BVD17 does however refer to ss 473DC(1) as being “such a” procedural power. That subsection enables the Authority to ‘get’ ‘new information’ if it is relevant and was not before the Minister at the time of his decision. Similarly, the Minister cited CDZ16 v Minister for Immigration and Border Protection [2017] FCA 967, where Logan J also found that reasons were not required for the Authority to have discharged its duty under s 473DC(1).

49    There are substantial differences between the tests contained in ss 473DC(1) and 473DD. The former is a permissive power, enabling the Authority to ‘get’ new information where it is relevant and was not before the minister. The use of such information is restricted by s 473DD, which requires, as set out above, “exceptional circumstances to justify considering the new information”. Section 473DD is mandatory and restrictive. Further, ‘relevance’ is a lower bar than ‘exceptional circumstances’.

50    Those differences notwithstanding, the power within s 473DD is unquestionably ‘procedural’ as it is analogous to the power in ss 473CD(1). Both concern the admissibility of material, not the grant or refusal of relief. Given this I consider the High Court’s reasoning in BVD17 to be applicable to s 473DD and the ‘exceptional circumstances’ test.

51    I would add that though there are many cases in which an applicant for a visa through the fast track procedure has challenged the Authority for failing to consider relevant information, neither counsel for the Minister nor the appellant could find any authorities in which s 473DD was successfully invoked in the way the appellant sought to do so here.

Was the Report material to the Authority’s decision?

52    As I have concluded that leave to rely upon the new ground should not be given, I need not consider whether the Report was material to the Authority’s decision.. However, if I am wrong regarding the question of leave, I would deny the appeal on the basis the Report was not material to the Authority’s decision.

53    The Minister challenged the materiality of the reliance on the Report by reference to Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at 606 [32], 616-617 [69], 623 [91]-[92]; [2011] HCA 1 as referred to with approval in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 93 ALJR 252. As the High Court said in SZMTA at [45], “A breach is material to a decision only if compliance could realistically have resulted in a different decision”.

54    The question of materiality centred upon the following paragraphs of the Authority’s decision:

12.     I accept that the applicant’s father received threats and was consequently killed in September 2010, due to his business of selling or hiring out musical instruments. I also accept his father was threatened in 2010 and did not comply with the militia’s demands that he cease his “un-Islamic” activities. However, I am not satisfied that the applicant has been threatened with harm in the past. Following his death, neither [the appellant’s brother] nor the applicant sought to continue their father’s business. There is no reason why he would now be specifically targeted by the militias threatening him on the basis of his past casual work, as the demands were complied with.

13.     Further to this, country information indicates that since his father’s death in 2010 there has been a change in how music and the arts are viewed. After years of reported persistent attacks against artists, actors and singers for their (perceived) engagement in “un-Islamic” or “Western” activities, Iraq’s cultural scene is said to be flourishing again. Artists report restrictions resulting from intolerance and strict interpretations of Islamic values, rather than by direct attacks. In January 2011 the Minister of Education reversed a decision of his predecessor to ban music and theatre classes in art institutes. The applicant was invited to comment on this information.

14.     On 22 February 2017 the applicant responded that “the theory is different than the practical way and what is going on”. He re-iterated that his brother had been granted protection, that his father had been killed and that his family had fled as a result of the incidents. He stated the Shia group are very dangerous, and that even though the new Minister “made some changes at University it does not lead to say that our shop can be re-opened and I can resume my father’s business as we did in the past”. There is nothing in the more recent country information to indicate that in Government-controlled areas of Iraq, such as Dhi Qar province, that the community view relating to music and the arts has changed again, or again become more conservative. Taking into account the applicant’s evidence and the country information before me, I am of the view that there would no longer be a real chance of the applicant suffering harm for this reason.

15.     Following the closing of the shop, the applicant and his family moved to Ur-Beid outside of Nasiriyah but remained in the same general area for some two years without further action being taken against him. I acknowledge that the death of his father was distressing to the applicant and his family, such that they felt it necessary to flee at the time, however given the change in attitude towards music and the arts, and the passage of time since his departure from Iraq, I am not satisfied there is a real chance that he would be harmed now or in the foreseeable future because of his past activities assisting his father in the instrument sale/hire shop. I also note that the decision to grant a permanent protection visa to the applicant’s brother [redacted] was made on 20 September 2011. This predates the publishing of the country information referred to at paragraph 13 above, which indicates a lessening of the intolerance surrounding music and the arts.

16.     In considering whether there would be a real chance that he would be harmed if he returned to work selling or hiring out musical instruments in Iraq, I conclude on the basis of the country information as quoted above that there would not. In any event, I am not satisfied he would have any continuing involvement in the industry. I note the shop was closed in 2010 and since that time the applicant has not been associated with this type of work. He has completed a Bachelor degree in Education/Biology Sciences. The applicant gave evidence that he applied for government jobs in his field of study but positions in this area were limited and there were no vacancies at the time of his application. This was the only reason that he went to work for his father. I find that the applicant would not work selling or hiring musical instruments, should he return to Iraq, and this would not be because of any modification of his behaviour. Following the family’s relocation to Ur-Beid, the applicant said that he was considering enrolling for his Master’s degree at Thiqar University and was studying at home in preparation for this. He did not however enrol for his Master’s as he left the country.

55    The Minister submitted that the Report was not material to the Authority’s conclusion that the appellant did not have a well-founded fear of harm. This was said to flow from several findings made by the Authority as set out above, such findings being antecedent to any necessity to consider the Report. Specifically, reference was made to following findings made by the Authority: that the appellant had not been threatened with harm in the way he alleged (at [12]) and that the appellant would not work in the music industry on return to Iraq (at [16]).

56    In my view, the Minister’s submissions should be accepted. The Authority considered two bases on which the appellant may fear harm upon his return due to his historical connection to the music industry: first, the specific threat to the appellant due to his past involvement and relationship to his father, and second, the general threat to him should he resume trade in the music business.

57    In relation to the first, the Authority did not need to consider the Report, as it did not accept that the appellant had been threatened as he alleged, or that he would be specifically targeted in future due to his past involvement. The Authority at [12] states “I am not satisfied that the applicant has been threatened with harm in the past … [t]here is no reason why he would now be specifically targeted by the militias threatening him on the basis of his past casual work, as the demands were complied with.” The reasons of the Authority do not disclose any reliance on the Report to come to this conclusion.

58    Regarding the second, the Authority did not accept that the appellant would re-enter the music industry. Given this finding, there was no need for the Authority to consider how attitudes had changed in Iraq. It follows that the putative error identified by the appellant was not material in the sense contemplated by the authorities.

Disposition

59    The appeal is dismissed with costs.

Associate:

Dated:    28 September 2020