Federal Court of Australia

Minister for Immigration and Border Protection v CYE17 [2020] FCA 1594

ORDERS

THE COURT ORDERS THAT:

1.    Time be extended to 2 November 2020 for the respondent to file the notice of contention dated 30 October 2020 relied upon at the hearing on 2 November 2020.

2.    Leave be granted to the respondent to rely in the appeal upon the ground identified in the notice of contention.

3.    The appeal be dismissed.

4.    The parties are to file within 7 days short minutes of order to give effect to any agreement as to costs.

5.    If no agreement is reached as to costs, each party should file a submission of no more than 2 pages within 7 days addressing costs.

6.    Any question of costs will be determined on the papers.

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

REASONS FOR JUDGMENT

THAWLEY J:

1    This is an appeal brought by the Minister for Immigration and Border Protection from orders made by the Federal Circuit Court of Australia on 23 January 2019 on judicial review of a decision of the Immigration Assessment Authority: CYE17 v Minister for Immigration and Border Protection [2019] FCCA 102 (hereafter referred to as “J”). The Federal Circuit Court ordered the issue of writs of certiorari and mandamus, respectively quashing the Authority’s decision (hereafter referred to as “A”) and directing it to determine the review of the decision of the Minister’s delegate made on 16 December 2016 according to law.

2    The relevant background facts may be found in the decision of the primary judge. It is not necessary to repeat them. They are referred to only to the extent necessary to address the issues raised by the appeal.

3    Section 473DC(1) of the Migration Act 1958 (Cth) is central to understanding the issues on the appeal. It provides:

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.

4    The respondent contended before the primary judge that the Authority had fallen into jurisdictional error because it had not assessed against the requirements of ss 473DD and 473DE a certificate issued by the Minister under s 473GB(5) and two documents to which the certificate related, namely an age assessment report and the audio recording of an age assessment interview, the latter of which was before the Federal Circuit Court in the form of a transcript. Before the primary judge, the respondent relied upon the decision of a single judge exercising this Court’s appellate jurisdiction in CED16 v Minister for Immigration and Border Protection (2018) 265 FCR 115 (CED (FC)).

5    The primary judge, regarding himself bound by the reasoning in CED (FC), concluded that the certificate was “prima facie ‘new information’”, because it was not before the delegate: J[44]. There is no issue on the appeal that this conclusion was wrong. The High Court allowed an appeal from CED (FC), holding that the certificate was “not a ‘document’ nor did it contain ‘information’ within the reference to ‘any documents or information’ in the definition of ‘new information’ in s 473DC(1)”: Minister for Immigration and Border Protection v CED16 (2020) 380 ALR 216 at [24]. This error leads nowhere because the primary judge concluded that the Authority did not consider that the certificate “may be relevant” and therefore could not be “new information” because of s 473DC(1)(b): J[48].

6    As to the report, the primary judge concluded that it could not be “new information” because it was before the delegate, such that the requirement in s 473DC(1)(a) was not satisfied: J[45]. This conclusion was plainly correct and no issue arises in the appeal in that respect.

7    As to the interview, the Minister admitted that it satisfied the requirement in s 473DC(1)(a) but contended that it did not satisfy s 473DC(1)(b). That is, the Minister contended that the Authority did not consider that the interview “may be relevant”. The primary judge inferred that the Authority did consider the transcript “may be relevant”, stating at J[46], J[49] and J[50]:

[46]    The question of whether … the transcript met the second part of the definition of “new information” is a question of fact that must be determined on the material before the Court. The question is whether the Authority considered that the … transcript, or the information in [it], may be relevant. In the context, information may be relevant if it may have a bearing on the decision to be made on the review.

[49]    However, I do consider that the Authority did consider that the transcript may be relevant. That is because there are aspects of the Authority’s reasons that are more likely than not to have come from the underlying documents and, in particular, the transcript of the identity interview and report: see, for example, [19] and [29]; cf. transcript p 16 lines 5-13, p 21 lines 7–10. The fact that the Authority relied on the information in the transcript to some extent compels the conclusion that it considered that that information may be relevant. For that reason, the transcript was “new information”.

[50]    It follows from that conclusion, applying CED16, that the Authority ought to have, but did not, consider the operation of s 473DD or s 473DE in respect of the transcript. On the authority of CED16, that failure amounted to jurisdictional error. In any event, as I have observed, the Authority relied on the information in the transcript in at least part of its reasoning. That supports the conclusion both that s 473DE applied to the information in the transcript and that the error was material.

8    The Minister contends on appeal that the primary judge erred in drawing the inference that the Authority considered that the transcript “may be relevant”.

9    In CED16 at [23], the High Court said of the word “relevant” in s 473DC(1)(b):

Consistently with the confinement of s 473DC(1)’s reference to “any documents or information” to documentation or information of an evidentiary nature, the word “relevant” in s 473DC(1)(b) can only sensibly be read as having the same meaning that the word “relevant” has in s 473CB(1)(c). Documentation or information of an evidentiary nature that the Authority considers may be “relevant” is documentation or information of an evidentiary nature that the Authority considers “capable directly or indirectly of rationally affecting assessment of the probability of the existence of some fact about which the Authority might be required to make a finding in the conduct of its review of the referred decision”.

10    It is not altogether clear whether the primary judge approached the matter on that basis or whether his Honour had something broader in mind when he observed at J[46] that “information may be relevant if it may have a bearing on the decision to be made on the review”.

11    Noting that the respondent as applicant before the primary judge bore the onus of establishing jurisdictional error on the part of the Authority, the question to be answered by the primary judge was whether the respondent had shown that the Authority considered the transcript was “documentation or information of an evidentiary nature that the Authority consider[ed] [may be] ‘capable directly or indirectly of rationally affecting assessment of the probability of the existence of some fact about which the Authority might be required to make a finding in the conduct of its review of the referred decision’”.

12    In order to determine whether information “may be relevant”, it is necessary to identify the information of an evidentiary nature, the fact about which the Authority might be required to make a finding and the way in which the evidence was “capable directly or indirectly of rationally affecting assessment of the probability of the existence of” that fact. It is desirable to identify those matters in judicial review proceedings in which it is alleged that the Authority considered the new information “may be relevant”. First, those matters assist in determining whether the Authority considered the new information “may be relevant”. Secondly, those matters need to be considered in order to determine the consequences of any established error, including whether it was material to the outcome. Whilst the primary judge concluded that the Authority considered the interview “may be relevant” and that it therefore erred in not considering the operation of ss 473DD and 473DE, his Honour did not address the consequences of the purported error, including how the error was relevantly material.

13    Having regard to the language employed by the primary judge at J[46] and the manner in which his Honour reasoned to the conclusion that the Authority considered the transcript “may be relevant” (to be discussed next) and the failure to address the consequences of the perceived error, including the question of materiality, I am satisfied that the primary judge erred, including in relation to the factual conclusion that the Authority considered the transcript “may be relevant”.

14    The only reason given by the primary judge for his inference that the Authority considered the transcript “may be relevant” was that there were aspects of the Authority’s reasons that were more likely than not to have come from the underlying documents and, in particular, the transcript of the interview and report: J[49]. His Honour referred to A[19] and A[29]. He considered that these, more likely than not, had come from transcript page 16 lines 5–13 and page 21 lines 7–10. Nothing else was referred to.

15    The first matter to note about the primary judge’s conclusion at J[49] is that the report was not “new information”. If the Authority relied on the report it could not have erred by failing to consider the operation of s 473DD or s 473DE.

16    The second matter to note about the conclusion at J[49] is that the Authority nowhere referred to the certificate, the report or the transcript. Section 473EA(1)(b), read with s 25D of the Acts Interpretation Act 1901 (Cth), requires the Authority to identify in its statement of reasons the evidence or other material on which a finding on a material question of fact is based. The statement of reasons, in a formulation seen in numerous cases including CED16, contained the statement that the Authority “had regard to the material referred by the Secretary under s 473CB”: A[3]. In CED16 at [5], [18] and [19], the High Court stated (footnotes omitted):

[5]    The Authority made its decision to affirm the decision of the delegate of the Minister not to grant the first respondent a protection visa in July 2016. The statement of reasons for its decision which the Authority then gave in accordance with s 473EA(1)(b) of the Act contained the statement that the Authority “had regard to the material referred by the Secretary under s 473CB”. The statement of reasons made no reference to the Identity Assessment Form or to the Certificate and addressed no issue concerning the identity of the first respondent.

[18]    The argument that the Authority can be inferred to have considered that the Certificate may have been relevant to the conduct of the review is put by the first respondent at two levels. At the more general level, the first respondent argues that the fact that the Certificate was given to the Authority in conjunction with the purported notification under s 473GB(2)(a) justifies the inference that the Authority accepted the Certificate to be valid for the purpose of s 473GB(1)(a) so as to enliven the powers conferred by s 473GB(3)(a) and (b) in relation to information contained in the Identity Assessment Form. At a more specific level, the first respondent argues that the statement in the Authority’s reasons that the Authority “had regard to the material referred by the Secretary under s 473CB” justifies the inference that the Authority in fact exercised the power conferred by s 473GB(3)(a) to take information contained in the Identity Assessment Form into account in making its decision to affirm the decision under review.

[19]    Whilst the more general inference is available to be drawn, the more specific inference is not. Fairly read within the statutory context in which the Authority’s reasons were given, its statement that it “had regard to the material referred by the Secretary under s 473CB” did no more than reflect the Authority’s conscious compliance with the primary procedural obligation imposed on it by s 473DB(1) to review the fast track reviewable decision referred to it by considering the review material provided to it under s 473CB. The obligation imposed by s 473DB(1) is no more than “that the Authority examine the review material provided to it by the Secretary in order for the Authority to form and act on its own assessment of the relevance of that material to the review of the referred decision”. The statement alone provides no foundation for an inference that the Authority treated any specific part of the review material as a basis for making any finding of fact that formed part of the reason for its decision to affirm the decision under review. Even less does the statement provide a foundation for an inference that the Authority took into account review material covered by any notification or purported notification under s 473GB(2)(a). However, that minor difficulty for the first respondent’s attempt to support the overall conclusion of Derrington J can be put to one side.

17    For the reasons given below, the primary judge’s conclusion that A[19] and A[29], more likely than not, “come from” the transcript was not an inference which could properly be drawn. The conclusion drawn on the basis of that inference, namely that the Authority therefore considered the transcript “may be relevant”, must necessarily also fall.

18    The Authority’s reasons at A[19] were contained in that part of its decision record that discussed the respondent’s claims in relation to the Al-Fadheela Party. From A[14] to [20], the Authority surveyed the internal inconsistencies in the evidence given by the respondent in his entry interview, statutory declaration and Safe Haven Enterprise visa (SHEV) interview, stating:

[14]    The applicant’s claims relating to the Al Fadila party, or members of a militia group associated with that party, have varied significantly over time. In his entry interview, the applicant claimed that in 2008 his neighbour, [Y], was killed by members of a militia group. He did not know the name of the militia group concerned. He said that [Y]’s brother was also killed when he went to collect [Y]’s body. When people from the applicant’s area went to collect the bodies of [Y] and his brother from the hospital, they were attacked by armed men in a vehicle. He said three men were killed in this attack and provided the names of the men who were killed. He said that [Y]’s family fled after this incident and left their house in the care of the applicant’s brother. The applicant’s brother sought to sell the house and they were then threatened by the militia group.

[15]    In the statement accompanying his SHEV application, the applicant claimed that he and his brother came to be of interest to members of a Shia militia group associated with the Al Fadila group or party after his brother intervened in a fight between their neighbour [Y] and members of this militia group in the street in June 2006. The fight started after members of the militia group verbally abused [Y] and the Sunni religion. The applicant and his brother ran away after members of the militia group threatened to kill them. After this incident, members of ‘militia groups’ started to come to the applicant’s home each month to demand payment of money to ensure the safety of the applicant’s family. Around a year later, ‘militia groups’ asked the applicant’s family to pay a large amount of money, which they could not afford to pay. [Y] was also asked to pay a large sum of money to the militia group but refused to do so. Because of this, members of ‘the militia groups’ killed [Y]’s son.

[16]    The applicant’s statement indicates that the applicant’s brother and father then went to the coroner’s office to collect ‘[Y]’s body’. In a subsequent paragraph of the statement the applicant indicates that [Y] fled Iraq after the death of his son and I conclude that the reference to collecting ‘[Y]’s body’ is intended to be a reference to the body of [Y]’s son. The applicant claimed in his statement that militia men opened fire on a group of people who were standing outside the coroner’s office following the death of [Y]’s son, including the applicant’s brother and father. He claimed that fourteen people were killed in this incident. [Y] left Iraq after this, authorising the applicant’s brother to arrange the sale of his house in his absence. In 2012, the applicant and his brother were threatened by members of a militia group associated with the Al Fadila party when they commenced negotiations to sell [Y]’s house because the militia group claimed to have confiscated the property.

[17]    In the SHEV interview, the applicant also claimed that [Y]’s son was killed by members of a militia group associated with the Al Fadila party when [Y] refused to pay money to the group. He claimed that two of [Y]’s other sons were among a group of people standing outside the coroner’s office waiting to collect the body of [Y]’s son, and were killed by armed men in a vehicle. The applicant provided the names of the two sons killed in this incident. They differ from the names of the three men killed provided in the applicant’s entry interview.

[18]    The applicant claimed that his brother was asked by [Y] to mind his house and to rent it out in his absence. He and his brother were threatened by the militia when they sought to rent the house out in 2012. The delegate put to the applicant that his brother, who travelled to Australia with the applicant and has since been granted a visa to stay in Australia, indicated in an interview with the Department that he did not hold any papers relating to the ownership of [Y]’s house, while the applicant had claimed during the SHEV interview that they did hold paperwork relating to the house. The applicant said he may have been confused. He said he relied on his brother’s advice to him and he may have misunderstood that advice.

[19]    There are other more significant inconsistencies in the applicant’s own evidence. In particular, the applicant’s evidence regarding the number and identity of the people who were killed by militia group members has varied, as has his evidence regard [sic] his knowledge of the identity of the group responsible. I note also that the applicant indicated in his SHEV application that [Y] asked the applicant’s brother to arrange the sale of his home, while in his SHEV interview he claimed that he and his brother were asked to look after and rent out the house.

[20]    I have considered the limited time available to the applicant to present his claims in the entry interview, and the potential impact of the passage of time. Having reviewed the recording of the entry interview, I accept that the applicant had a limited opportunity to present his claims. Nevertheless, the nature of the inconsistencies between his evidence in the entry interview and his later evidence is not such that they can be adequately explained on this basis. Similarly, I do not accept the time that has elapsed since the claimed incidents occurred adequately explains the changes in the applicant’s evidence.

19    The transcript at page 16 (lines 5-12) provided:

SARAH: Who would want to kidnap you?

INTERPRETER: We don’t know them.

TONI: How can you be afraid of them if you don’t know them?

INTERPRETER: Because they shot my dad and sometimes they come with special cars.

TONI: So your brothers don’t know who they are?

INTERPRETER: No-one knows. They wear like masks all the time and then they threaten and they go.

20    That part of the interview has little relevance to the Authority’s reasons at A[19] and certainly does not suggest that A[19] “comes from” the transcript. The second sentence of A[19] should be understood as the Authority referring to the inconsistencies in the respondent’s evidence in his entry interview, statutory declaration and SHEV interview as to the number of people killed by members of militia groups and the identities of the victims of those attacks. The inference is not available from a reading of the decision record as a whole, particularly A[14] to [20], that what the Authority stated in A[19] came from the transcript.

21    At A[29], the Authority stated:

As discussed, the applicant claimed in the entry interview and in his SHEV application to have been born in 1996. He advised the delegate during the SHEV interview that his year of birth is 1991. The applicant was therefore a young man of approximately 21 years of age when he left Iraq. I consider it highly likely that he sought to conceal any past employment and his education in support of his claim to be a minor on his arrival in Australia. I do not accept that the applicant did not attend school in Iraq or that he has never been employed in Iraq in the past.

22    The transcript at page 21 (lines 6-10) stated:

INTERPRETER: He told me come with me there it is better for you especially as you are afraid of the threats that you get.

TONI: What did your parents say about this?

INTERPRETER: Well they agreed on that and they told me its better for me if you leave otherwise you might die here with the explosions that happen.

23    This part of the transcript had no connection to the Authority’s conclusions at A[29]. The conclusion that A[29] came from the transcript was not open.

24    The respondent submitted that there were other parts of the interview which were relevant to the Authority’s conclusions at A[29]. The respondent referred to a denial by the respondent of having been to school at page 3 lines 12-14, at page 10 lines 8-9 and on page 16 lines 23-28. This was put to the respondent by the interviewer as implausible and inconsistent at page 27 lines 7-26. There was a denial of ever having worked at page 9 lines 10-13 and this was put to the respondent as surprising at page 27 line 28. The respondent submitted that the fact that the interviewer reached the same conclusion as the Authority about the applicant’s employment and education history makes it likely that the Authority regarded that assessment as relevant.

25    The respondent submitted that there were other aspects of the interview which provided information about events the subject of the Authority’s fact finding. In particular, it had information about the applicant’s father being shot in 2004. The Authority accepted at A[13] that the father had been shot that year. The respondent had claimed in his Entry Interview on 7 December 2012 that his father had been attacked in 2004, but he did not say he had been shot. The claim that the father had been shot was not made by the applicant in his later statutory declaration in support of his SHEV. The delegate had said the applicant claimed during the SHEV interview that the father had been “shot at”. Nevertheless the Authority accepted the claim that the father had been shot. This was said to be a further indication that the interview was taken into account and was regarded as relevant.

26    The Minister’s formal response was that no notice of contention had been filed and that, without one, the question whether the primary judge erred fell to be determined by reference only to those matters that led his Honour to grant the judicial review remedies sought by the respondent.

27    The Minister’s substantive response was as follows. The fact that, on the one hand, the departmental officers conducting the interview did not consider the respondent’s evidence that he had never attended school in Iraq or been employed to be plausible, and, on the other, the Authority did not accept his claim, did not supply the inference that the Authority had regard to the interview. At A[27] and [29], the Authority expressly referred to the evidence given by the respondent in his entry interview, SHEV application and SHEV interview. In the face of its obligation in s 473EA(1)(b), it is unlikely that the Authority had some other piece of evidence in mind when it came to make its findings at A[29].

28    As to the finding at A[13] that the father had been shot in 2004 it is unlikely that the Authority based its findings on the interview in circumstances where nothing was said in that interview as to the clothing worn by the assailants and the reasons for attacking the respondent’s father. At A[13], the Authority stated:

The applicant claimed his father was shot by unknown men dressed in black while on the way back from the farm in 2004. His father was injured but not killed in this incident. The applicant said he did not know who the men who attacked his father were, but thinks that his father was targeted because of his active practise of his Sunni religion. The applicant did not refer to any other harm or threats to his father, or any words spoken to his father during the incident. It is not apparent how he reached the conclusion that his father was attacked because of his Sunni faith. I am willing to accept that the applicant’s father was shot and injured in the street in Basra in 2004…

29    The following appeared in the delegate’s reasons:

During the PV interview, the applicant advised that in 2004, his father was shot at while returning from the farm. The applicant claims that he was targeted by unknown people dressed in black because of his strict commitment to his religion.

30    At A[9], the Authority summarised one of the claims as follows:

In 2004, his father was shot and injured by men dressed in black while returning from the farm. He does not know who shot his father. He thinks his father was targeted because of his strict commitment to his religion.

31    The better inference is that the findings at A[13] were based on evidence given by the respondent during his SHEV interview and a review of the delegate’s decision.

32    The question for the primary judge was whether the Authority considered the interview “may be relevant”. Having reviewed the material before the primary judge, my view is that the respondent did not discharge his onus of showing that the Authority did consider the interview “may be relevant”.

33    The primary judge reached his conclusion on the basis of inferences drawn from the Authority’s reasons. The interview was not referred to by the Authority in its decision record. The Authority expressly referred to the material which it considered relevant. There is no material in the Authority’s decision which could only have come from the interview. All the material in the Authority’s decision can be shown to come from material other than the interview.

34    The inference that the Authority considered the interview “may be relevant” does not have to be drawn from the Authority’s decision record. Such an inference may be drawn from the circumstances more generally. However, in the present case, those circumstances are not sufficient to draw a conclusion that the Authority considered the interview “may be relevant” in the sense of being capable directly or indirectly of rationally affecting assessment of the probability of the existence of some fact about which the Authority might be required to make a finding in the conduct of its review of the referred decision. The better inference to draw is that the Authority did not have regard to the interview at all. In Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [47], Bell, Gageler and Keane JJ observed:

The drawing of inferences can be assisted by reference to what can be expected to occur in the course of the regular administration of the Act. Although it is open to the Tribunal to form and act on its own view as to whether a precondition to the application of s 438 is met, the Tribunal can be expected in the ordinary course to treat a notification by the Secretary that the section applies as a sufficient basis for accepting that the section does in fact apply to a document or information to which the notification refers. Treating the section as applicable to a document or information, the Tribunal can then be expected in the ordinary course to leave that document or information out of account in reaching its decision in the absence of the Tribunal giving active consideration to an exercise of discretion under s 438(3). Absent some contrary indication in the statement of the Tribunal’s reasons for decision or elsewhere in the evidence, a court on judicial review of a decision of the Tribunal can therefore be justified in inferring that the Tribunal paid no regard to the notified document or information in reaching its decision.

35    The inference I would draw in all of the circumstances, including the absence of any reference in the decision record to the certificate, the interview or the record, is that the Authority treated the certificate as valid and chose to leave the documents to which it referred out of account in its decision making process.

36    Whilst strictly unnecessary, I would also observe that, even if the respondent had shown that the Authority considered the interview “may be relevant” and, further, that the circumstances were such that it therefore erred in failing to consider the operation of s 473DD or s 473DE, I would not have been satisfied that any such error would have been sufficiently material for it to constitute jurisdictional error. It was not shown on appeal how the outcome might have been different if the transcript had been shown to be “new information” and the Authority had considered the operation of ss 473DD and 473DE. In particular, it was not shown how the content of the interview (assuming it to have been relied upon by the Authority) or anything which may have been said by the respondent if he had an opportunity under s 473DD or s 473DE, could have had a bearing on the outcome.

37    On the morning of the hearing, the respondent sought leave to rely on a notice of contention. The respondent’s submissions in support of the notice of contention were to the following effect. The report was covered by the s 473GB certificate. Applying the reasoning in SZMTA at [47] and in light of the absence of any reference to the report in the Authority’s decision record, it should be inferred that the report was left out of account by the Authority. The report included the following:

The client stated that both his older brothers were in the Iraqi Police Force and that his older brother [X] left the police force after the ‘Regime’ to work as a fruit shop owner. He said his brother was threatened and could not work as a policeman anymore.

The client stated that his older brothers and his father were all policemen who worked for the Iraqi special police. His [sic] said his father is retired and receives a pension from the Iraqi Government.

…

I note that this family has strong ties to the special Iraqi police and both interviewers felt that this family could possibly be a security concern to Australia and have referred this matter to Detention Intelligence for follow up.

38    The Authority stated at A[45] and [48]:

[45]    DFAT reported in 2015 that armed Sunni groups have attacked moderate Sunnis and individuals, often on the basis that these individuals are perceived to be collaborating with the government or because they wish to coerce them into supporting Daesh. The applicant claimed in general terms to fear harm from Daesh. When asked by the delegate why Daesh would target him, the applicant explained that Daesh had no mercy for any person. The applicant does not claim to have been targeted by armed Sunni groups in the past for any reason, nor does he claim to have been, or to have been perceived to be, a collaborator with the Iraqi Government. He has not claimed that he, or any person he knows, has been pressured to support Daesh. There is no evidence before me to suggest that the applicant will be of any future adverse interest to armed Sunni groups on the basis of any perceived support for the government.

…

[48]    Having regard to the information before me, while I accept that violent incidents occur in Basra, I am not satisfied that there is a real chance of harm to the application at the hands of armed Sunni groups, or as a result of the security situation, in Basra province, now or in the foreseeable future.

39    The respondent submitted that the material in the report concerning the association of the applicant’s family with the special Iraqi police was evidence which suggested that the applicant might be perceived as a collaborator with the government. The respondent submitted that, had the Authority taken this material into account, there was a realistic possibility that it might have taken the view that this created an extra risk of persecution and a different outcome was possible – cf: Minister for Immigration and Border Protection v CPA16 (2019) 268 FCR 379 at [33]; El Jejieh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1103 per Wigney J at [144].

40    The respondent contended that:

(1)    the invalid notification under s 473GB(2)(a) amounted, without more, to an unauthorised act in breach of a limitation within the statutory procedures which conditioned the performance of the overarching duty of the Authority to conduct a review; and

(2)    the resulting decision had no legal force because the breach was material – cf: SZMTA at [44].

41    The Minister opposed leave being granted to rely on the notice of contention, noting that the respondent required an extension of time and leave to raise a ground which the respondent had not raised in its application for judicial review.

42    The Minister argued that the breach was not material: the respondent did not claim to fear harm as a result of his brothers working as police officers.

43    The respondent’s claims as recorded by the Authority at A[9] included:

He is a Sunni Muslim of Arab ethnicity who was born in Basra in the south of Iraq. He lived in Basra throughout his life in Iraq. His parents and one brother still live in Basra.

In 2004, his father was shot and injured by men dressed in black while returning from the farm. He does not know who shot his father. He thinks his father was targeted because of his strict commitment to his religion.

Following the bombing of Shia shrines in Samara by the armed Sunni group Daesh in 2006, he and his family were targeted and subjected to persecution by Shia militia groups, including groups associated with the Shia Al Fadila party, due to their Sunni faith.

In June 2006, he, his brother and their neighbour were stopped following Friday prayers by members of a Shia militia group associated with the Al Fadila party. The members of the militia group insulted their Sunni religion and an altercation ensued between the applicant’s neighbour and the militia group members. His brother intervened to save their neighbour. The militia group members threatened they would kill the applicant and his brother and they ran from the scene.

After this incident, the militia group forced his family to pay money regularly for approximately a year to avoid being beaten. The applicant’s neighbour’s son and relatives were killed by the militia group after the neighbour refused to pay money to them. The neighbour then fled the country. The applicant’s brother was authorised by the neighbour to look after his house, rent it out, or to negotiate its sale in his absence.

In April 2012, members of the militia group affiliated with the Al Fadila party came to the applicant’s home. They threatened to kill him and his brother due to their religion and because his brother was negotiating the sale of the neighbour’s property. The militia group claimed to have confiscated the neighbour’s property. They demanded that he and his brother leave the area within a short timeframe.

In July 2012 the militia group members shot at his family car and left an envelope with two bullets inside. The letter threatened that he and his brother would be killed.

If he returns to Iraq he will be killed by members of the Shia militia group associated with the Al Fadila Party.

He will be readily identified as a Sunni if he returns Iraq because of his first name, which is usually a Sunni name in Iraq, and his Sunni religious practices.

He fears being harmed by the armed Sunni group Daesh and killed as a result of generalised violence in Iraq.

44    In a submission made to the Authority on 13 January 2017, the respondent had stated:

First , we would like to mention that the applicant came to Australia accompanied by his brother [X], they left Iraq together, they witnessed some of the persecution in Iraq together as the applicant [sic] statutory declaration refer to, for example in par 5, the applicant mention [sic] how his brother [X] took him to Friday prayers, how he and his brother were stopped by alfadheelah party, how his brother intervened to save the life of [Y], and how he and his brother were threatened by alfadheela party, how he and his brother were threatened and requested to pay money, how in April 2012 their house was raided and how in July 2012 the militia shot at their car, the applicant and his brother fled Iraq together because they were targeted together.

[X] was granted the refugee status (visa 790) on 11-8-2016, while the applicant [sic] case was refused on 16-12-2016.

The delegate of the department suggested that the applicant suffered only generalised violence, although he and his brother received threats as stated above, to illustrate these threats I attached both brothers [sic] statutory declarations as I represented both of them before the department.

…

His association with his brother [X] put the applicant’s life at risk equivalent to that of his brother …

It is logical to conclude that the applicant shared the incidents in Iraq, or he was perceived as person who has links to his brother, to [Y] and his father, then we will expect that the harm which will apply to the applicant is not less than the harm faced by the applicant’s brother who was granted protection visa for almost the same reasons …

45    It is true that the respondent did not claim to fear harm as a result of his brothers working as police officers. However, the respondent did claim to fear harm from the armed Sunni group Daesh. This claim was considered by the Authority at A[45]. The Authority recognised that such harm might occur in a situation where someone was perceived to be a government collaborator. The material in the report was relevant to the Authority’s consideration of the respondent’s claim to fear harm from Daesh and the conclusions stated by the Authority at A[45]. I am satisfied that the report could realistically have resulted in the decision-maker making a different decision: CPA16 at [33].

46    The Minister resisted the granting of an extension of time on all of the usual bases, including prejudice. He submitted that he might have, for example, made inquiries about whether there was material which indicated that the report was taken into account by the Authority. However, the Minister did make careful inquiries about what the delegate had before her and should be taken to have been aware of what material was before the Authority given that the Secretary was the person who referred the review material to the Authority. It is difficult to see what evidence the Minister could have adduced to show the report was taken into account in the face of the absence of any reference to it in the Authority’s decision record. It is to be remembered in this context that its case on its appeal was that the Authority did not take into account the interview, which was also the subject of the s 473GB certificate.

47    I have taken into account the length of the delay and the explanation for it. The decision in SZMTA was delivered after the primary judge’s decision. It is plain enough that the point sought to be raised by the notice of contention became apparent late as a result of the submissions filed by the parties. Counsel for the respondent frankly conceded that it became increasingly apparent that the appellant’s position was correct that the Authority was unlikely to have taken the interview into account. The corollary of this was that the Authority was also unlikely to have taken the report into account. In my view, time should be extended to allow for the filing of the notice of contention and leave should be granted to rely on the new ground sought therein. Although the appellant’s appeal is made out, the appeal should be dismissed for the reasons given in relation to the respondent’s notice of contention – cf: James Cook University v Ridd (2020) 382 ALR 8 at [192].

48    I direct the parties to file within 7 days short minutes of order to give effect to any agreement as to costs. If no agreement is reached, each party should file a submission of no more than 2 pages within 7 days addressing costs. Any question of costs will be determined on the papers.

Associate:

Dated:    5 November 2020