Federal Court of Australia

EAC16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1657

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    Paragraphs 1 and 2 of the orders of the Federal Circuit Court of Australia made on 26 June 2020, by which the appellant’s application to that Court was dismissed with costs, be set aside, and in lieu thereof it be ordered that –

(a)    a writ of certiorari issue to the Immigration Assessment Authority quashing its decision dated 7 December 2016, by which the refusal of the applicant’s application for a temporary protection visa was affirmed; and

(b)    a writ of mandamus issue to the Authority requiring it to undertake its review according to law.

3.    The parties are to confer in relation to orders as to costs in this Court and below, and if agreement is reached, a proposed consent order should be submitted to the Chambers of the Honourable Justice Wheelahan by 4.00 pm on Friday, 20 November 2020.

4.    If the parties are unable to agree in relation to orders as to costs, then by 4.00 pm on Friday, 27 November 2020, the parties are to file and serve written submissions, not to exceed three pages, in support of their proposed orders as to costs.

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

REASONS FOR JUDGMENT

WHEELAHAN J:

Introduction

1    The appellant appeals orders of the Federal Circuit Court made on 26 June 2020 by which his application to that court seeking judicial review of a decision of the Immigration Assessment Authority was dismissed.

2    The appeal raises one issue: were the accepted errors by the Authority in its evaluation of new information for the purposes of s 473DD of the Migration Act 1958 (Cth) material in the sense that as a result of the errors the appellant was deprived of the realistic possibility of a different outcome?

Background

3    The appellant is an Iranian national. He arrived at Christmas Island on 29 September 2012 as an unauthorised maritime arrival. He was accompanied by his wife and youngest son, both of whom returned to Iran in 2015.

4    The appellant first applied for a protection visa on 18 September 2013. That application was deemed to be invalid. Later, the appellant was invited to apply for a visa after the bar under s 46A(1) of the Migration Act was lifted, and he then lodged an application for a temporary protection visa dated 12 October 2015.

5    On 19 August 2016, a delegate of the Minister rejected the appellant’s application for a protection visa. On 30 August 2016, the application was referred to the Authority for review pursuant to Part 7AA of the Migration Act.

6    On 12 September 2016, the appellant provided written submissions to the Authority. The appellant also submitted a letter dated 13 September 2016 from a Captain in the Salvation Army providing a reference in support of his application (Salvation Army letter). The letter and its treatment by the Authority are central to the appeal.

7    On 7 December 2016, the Authority affirmed the delegate’s decision to refuse the application for a visa.

The Authority’s decision

8    For the purposes of the appellant’s first application for a protection visa in 2013, he made a statutory declaration dated 18 September 2013 (2013 declaration) that was prepared on his behalf by his then representatives, BMA Lawyers. In the 2013 declaration, the appellant claimed under the headings “Why I left my country”, and “Why I believe they will harm or mistreat me if I go back” the following –

(1)    In about 2008, he commenced making wine in his warehouse, and distributing it to friends and family. Sometimes, he provided wine to people on terms that they would pay later. When he followed up payment, people stated that if he continued to pursue them for money they would report him to the authorities. He stated that he knew that he would be seriously harmed by the Iranian authorities for producing and selling wine. About three months prior to his departure, the authorities raided his warehouse, and he went into hiding before fleeing Iran.

(2)    His wife and children were regularly harassed in Iran.

(3)    He may be at risk of serious harm upon return to Iran because he had travelled to a Western country and claimed asylum.

(4)    He may be at risk of harm because he no longer followed the Islamic faith.

9    In relation to the fourth point, in his 2013 declaration the appellant stated as follows –

Furthermore, I feared harm in Iran given I no longer believe in Islam. I became disenchanted with the faith. I felt it was strictly interpreted and relied upon by the Iranian Regime to perpetrate harm. Since coming to Australia, I have had the opportunity to explore different faiths. I have been attending my local Catholic Church each Sunday. I am enjoying learning about Christianity and feel that it may be a good religion for me. I want to complete further research before making my decision. Given I was born into the Islamic faith and no longer believe in the Islamic faith; I believe I would be seriously harmed in Iran.

10    Later in the 2013 declaration, the appellant stated –

Further, I may be at risk of harm given I no longer follow the Islamic faith. Individuals who do not follow Islam in Iran are at risk of serious harm. I would be in particular risk of harm given I was born into the Islamic faith and have decided to renounce it. Further, I would be harmed given I have taken an interest in the Christian faith.

11    The above passages raised two issues: (1) that the appellant no longer followed the Islamic faith; and (2) that the appellant was exploring Christianity.

12    The appellant relied on the 2013 declaration in support of his application for a temporary protection visa dated 12 October 2015. In the personal details section of the application, the appellant stated that his religion was Shia Muslim.

13    On 18 January 2016, the appellant was interviewed. The delegate summarised the interview, insofar as it concerned any claims about religion, at [59] of his statement of reasons –

…At the beginning of the PV interview the applicant stated he was an adherent of the Shia sect of Islam. When he was asked about his religion in more depth, he reiterated that he was a religiously Shia Muslim. The applicant was asked about his claim to fear punishment by the Iranian authorities because of his associations to other religions in Australia. The applicant replied that he said no such thing. When asked whether he attended other religious events, the applicant stated he had sometimes attended Church with friends, however, he confirmed he still considered himself to be Muslim. The applicant stated he had no other claims for protection other than his claim regarding the consumption, production and sale of wine. When the inconsistency between his written application and comments made at PV interview were put to him, the applicant stated he had not previously made claims regarding religion or conversion. The applicant was referred to his written statement of claims from his PV application, which had his name and signature which was sent from BMA Lawyers in 2013. The applicant said he did not claim that. He stated he had two friends who were Christian with whom he had attended church with, who had asked if he wished to convert which he declined. He stated he was 63 years old, and had lived for 63 years as a Muslim so he did not think he would change religion now. …The applicant was asked to confirm the signature on the statement was his, which he confirmed. He then confirmed the statement was his. The applicant was referred to the section which described fear of religious persecution due to his claimed loss of belief in Islam and his interest in Christianity. The applicant claimed he never said that to the lawyer. The applicant was asked if, when having made the statement, it was read back to him. He stated they did not. He claimed he never said anything about religious conversion or apostasy. He suggested the interpreter explained something incorrectly.

14    The primary judge listened to a recording of the protection visa interview, and found that the account by the delegate at [59] of his written reasons referred to above was an accurate summary of what occurred at 1 hour, 30 minutes to 1 hour, and 50 minutes of the interview. The primary judge stated that the account by the delegate was significant for five reasons. First, the appellant stated expressly that he was a “Shia Muslim”. Second, even though he attended a Christian church, he considered himself a Muslim. Third, he said he had no other claims for protection “other than his claim regarding the consumption, production and sale of wine”. Fourth, when his prior statements about Christianity were put to him, he disavowed them. Fifth, he said expressly that, at his age, “he did not think he would change his religion now.”

15    On 27 July 2016, and in response to a request to respond to information adverse to his case, the appellant submitted a further statutory declaration dated 27 July 2016 (2016 declaration). In respect of his religion, the appellant stated as follows in the 2016 declaration –

In [the 2013 declaration], I also talked about my religion. I believe I have been misunderstood by the DIBP in relation to this issue. In my protection visa interview, I stated that the claims I made in my [2013 declaration] about my religious conversion were not correct. I explained that I was not claiming a fear of [persecution] on the basis of my religion and was not thinking about converting. I wish to clarify my claims in relation to my religion. As I get older, I no longer consider myself a practising muslim nor am I a religious person. I am also wanted by the authorities for selling and producing alcohol as a western activity and believe I could be imputed with an anti islam view if I am returned to Iran. I therefore fear I may be harmed by the authorities as a non [practising] muslim.

16    The primary judge made the following observations about the passage from the 2016 declaration set out above. First, the appellant stated clearly he was not “a religious person”. Second, he stated that he feared harm as a non-practising Muslim. Third, he referred to being “misunderstood” by the Department, which was the second occasion on which the appellant had claimed a misunderstanding or miscommunication about his religion, the first being during his visa interview.

17    As I have mentioned, on 19 August 2016, the delegate refused the appellant’s application for a temporary protection visa, following which it was referred to the Authority.

18    By letter dated 12 September 2016, the appellant wrote to the Authority. In relation to his religious status, the appellant stated in his letter –

Religious Status

Contrary to para 59 [of the delegate’s statement of reasons which is set out at [13] above], I didn’t introduce myself as a Shia Muslim. I said I was born a Shia. I never believed in it. If I did I wouldn’t be producing and selling alcohol; that is the biggest affront to the religion. I said I was born a Shia Muslim. I haven’t officially changed my religion but I’m in the process of it.

So at the time of the interview, I said that I hadn’t changed my religion and because I hadn’t officially changed my religion. That wasn’t central to my claim. I was still Shia Muslim ‘in name’ because at that time I was still investigating. Now, I am more determined to convert, but at that time, my answer was because I hadn’t changed my religion officially.

The main issue that I have is my previous activities. Religion is not central to my claim, but I can see there is a lot of weight put on this question. My primary claim is about alcohol. Initially, because I had not changed my religion officially, religion was secondary. But considering that my wife has now betrayed me and revealed my secret to the authorities I am now more determined to change my religion.

I am more knowledgeable about Christianity and I have a stronger faith because of my studies. It took me this long to completely understand the religion and make up my mind about the change. I am now determined this is the faith I want to follow but it’s not because my wife has revealed this secret. I can never return to Iran because of these death sentences: first and primary, that I have these activities in producing and selling wine, and now, because my wife has told the authorities I have turned my back on religion.

There is a term in Farsi that the clerics use to refer to someone who turns their back on religion, translated that is “apostate.” If someone is labelled as an apostate, they are arrested and killed, to set an example for other people.

I always said I was born as a Shia. I’ve never considered myself a Shia. I can say that I didn’t believe anything until I started studying Christianity. At the moment, I don’t label myself anything. But I would like to be baptised as a Christian because that is what I have chosen. I have been going to church for the past two years and studying this religion and I have friends that can vouch for that.

19    In addition to the above, the appellant submitted the Salvation Army letter to the Authority, which was dated 13 September 2016, and which stated –

13 September 2016

To whom it may concern:

Re: Reference for [the appellant]

I have known [the appellant] for approximately 2 years now, after meeting him when I was in my previous appointment as the corps officer at [Location A] — [Location B] of the Salvation Army.

My initial introduction to [the appellant] was when he came to The Salvation Army for help to support him and his family who were living in [Location B] at that time. Over the years [the appellant] continued to attend The Salvation Army community lunch on a weekly basis and through these weekly meetings I got to know [the appellant]. As I got to know [the appellant] more I invited him along to our church services which were held on a Sunday morning and [the appellant] became a regular attender.

As time went by we continued our conversations about faith and religion, and [the appellant] showed a keen interest in the Christian faith, at times sharing together in prayer particularly for him, his family and the circumstances he found himself in.

During that time I have experienced [the appellant] to be a gentle natured polite and considerate man who has shown me, and others he has come into contact with, the utmost respect. There came a time when his family returned back to Iran and he expressed his deep sadness for this, yet despite the sadness he was feeling, [the appellant] expressed that for various reasons he needed to stay in Australia. After his family returned to Iran [the appellant] could no longer afford the rent in the house he was staying in, and I helped him to move out and make the arrangements to tidy his house up before leaving.

[The appellant] is very distressed about the prospect of having to return to Iran. [The appellant] has become a Christian, and is very strong in his Christian faith. His great fear is that if he is required to return to Iran the government will most certainly kill him. It is my hope and prayer that this reference will serve to support him in his application to remain in Australia.

For further clarification, please don’t hesitate to contact me on [phone number].

Yours Sincerely,

[Name omitted] (Captain)

Divisional Secretary The Salvation Army Central Victoria Division’

20    The primary judge made two material observations about the information in the Salvation Army letter. First, the writer stated that the appellant “has become a Christian”. Second, the letter spoke to the appellant’s engagement with Christianity up to the date it was written.

The Authority’s consideration of the Salvation Army letter

21    The Authority determined not to consider the Salvation Army letter in its review of the appellant’s application. That determination was in error for reasons that I will explain.

22    Section 473DB of the Migration Act sets out a requirement that the Authority is to review a decision referred to it by considering the “review material” provided to the Authority under s 473CB without accepting or requesting new information, and without interviewing the referred applicant. This is subject to specific powers to get, and in specified circumstances and on specified conditions, to consider new information, including by inviting the referred applicant to give new information in writing, or orally at an interview. Section 473DD mandates that the Authority must not consider new information unless the cumulative conditions in (a) and (b) are engaged –

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.

23    As to the necessary condition in paragraph (a) that there be “exceptional circumstances”, in Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 264 CLR 217 Gageler, Keane and Nettle JJ stated 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”.

(footnote omitted)

24    As to the alternate conditions set out in s 473DD(b)(i) and (ii), Gageler, Keane and Nettle JJ stated in Plaintiff M174/2016 at [31] –

Cumulatively upon the precondition set out in s 473DD(a) that the Authority must be satisfied that there are exceptional circumstances to justify considering new information, s 473DD(b) sets out a further precondition that must also be met before the Authority can consider new information that is given to it, or proposed to be given to it, by the referred applicant. In respect of new information within that category, the Authority must be satisfied of one or other of the circumstances set out in s 473DD(b)(i) and (ii).

25    In relation to the condition in s 473DD(b)(ii) that the information “was not previously known”, in Plaintiff M174/2016 Gageler, Keane and Nettle JJ held at [33] that as a result of legislative history, the reference to personal information which was not previously known encompasses personal information which, although previously known to the referred applicant, was not previously known to the Minister.

26    The circumstances in which new information might meet either of s 473DD(b)(i) or (ii) is logically to be assessed first, before considering whether the exceptional circumstances criterion in s 473DD(a) is satisfied. If either s 473DD(b)(i) or (ii) is met, then that is a circumstance that must be factored into the subsequent assessment of whether the new information meets the criterion in s 473DD(a): AUS17 v Minister for Immigration and Border Protection [2020] HCA 37 at [11] (Kiefel CJ, Gageler, Keane and Gordon JJ).

27    In relation to the Salvation Army letter, the Authority was not satisfied that either of the alternative sets of criteria in s 473DD(b)(i) or (ii) was engaged. The Authority’s reasons were as follows –

15    Although the letter post-dates the delegate’s decision and does not specify precise dates as to when the applicant became a Christian and developed a strong Christian faith, it is not apparent why the letter could not have been provided to the delegate before the decision was made. As noted above, the letter describes the author’s dealings with the applicant over a two year period. Moreover, while I accept that the letter expresses views genuinely held by the author, I am not satisfied that it contains credible personal information, as information in this letter appears to be inconsistent with other information provided by the applicant. For example, in the September 2013 statutory declaration, which was resubmitted without amendment with the TPV application lodged in November 2015, the applicant stated that he had attended the Catholic Church; he made no mention of contact with the Salvation Army. Nor did he mention this at the January 2016 TPV interview, at which he stated that he was not a Christian, he had not converted to Christianity despite invitations by friends to do so, he was not interested in changing his religion at his age, and he did not fear returning to Iran for reason of his religious beliefs. The applicant was informed at the interview that he could provide further information to the delegate at any time before a decision was made, and in fact he did provide further information in a statutory declaration dated 27 July 2016 in response to a “natural justice letter” sent by the delegate. He did not provide any information at that time indicating that he had now made a firm commitment to becoming a Christian; indeed, he stated that he is “not a religious person”. He again indicated that he was not relying on religious claims, including a conversion to Christianity. If it were the case that the applicant had developed a strong faith and become a Christian between his last contact with the delegate in July 2016, or after the delegate’s decision was made on 19 August 2016, this rapid development would, in my view, cast significant doubt on its genuineness, especially in light of the applicant’s comments at the TPV interview in January that he really had no intention of taking up a new religion. I am not satisfied that the requirements of s.473DD(b)(i) or (ii) are met, or that there are exceptional circumstances which justify consideration of this letter.

28    As to the criteria in s 473DD(b)(i), the primary judge held that the Authority was in error in treating the Salvation Army letter as containing information that could not have been put before the delegate. The primary judge took the view that the letter was new information because it was not in existence at the time the delegate made his decision, and also because the substance of the letter contained new information. In particular, the primary judge held that the letter contained information about the appellant’s religious beliefs up to the date of the letter, namely 13 September 2016. In addition, the primary judge held that because the letter spoke of the appellant having “become a Christian”, for that reason also it contained new information. The primary judge held that the Authority erred in finding that the Salvation Army letter could have been provided before the delegate’s decision. I take this to be an error of law in the construction and application of s 473DD(b)(i) of the Act that was liable to go to the lawful exercise of the Authority’s jurisdiction. There is no challenge on appeal by the Minister to this aspect of the primary judge’s decision.

29    As to the criteria in s 473DD(b)(ii), the primary judge held that the Authority had misapplied the condition that the information be credible by going beyond an assessment of whether the contents of the letter were capable of being believed. The primary judge applied the following passage from CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 at [43] (Bromberg J) –

The Authority required satisfaction that the “new information” was true when all that the s 473DD(b)(ii) criteria requires is the Authority’s satisfaction that the new information is capable of being believed at the deliberative stage of the Authority’s review. In so doing the Authority misconstrued s 473DD(b)(ii) and misconceived what the exercise of its statutory power entailed.

30    The reasons of Bromberg J in CSR16 referred to above were approved by the Full Court in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020] FCA 1008 at [56]-[78] (Mortimer and Jackson JJ, Besanko J not deciding).

31    There is no challenge by the Minister to the primary judge’s finding that the Authority had misconstrued the criteria in s 473DD(b)(ii). However, the primary judge held that neither of the errors that he identified was jurisdictional, because his Honour held that the errors were not material.

Materiality

32    In Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 it was held that an error in a statutory decision-making process is not jurisdictional if the error is not material. At [29]-[30], Kiefel CJ, Gageler and Keane JJ stated –

29    … Ordinarily, a statute which impliedly requires that condition or another condition to be observed in the course of a decision-making process is not to be interpreted as denying legal force and effect to every decision that might be made in breach of the condition. The statute is ordinarily to be interpreted as incorporating a threshold of materiality in the event of non-compliance.

30    Whilst a statute on its proper construction might set a higher or lower threshold of materiality, the threshold of materiality would not ordinarily be met in the event of a failure to comply with a condition if complying with the condition could have made no difference to the decision that was made in the circumstances in which that decision was made. …

(Footnote omitted.)

33    Their Honours went on to state at [31] that –

31    … Ordinarily, as here, breach of a condition cannot be material unless compliance with the condition could have resulted in the making of a different decision.

34    In Hossain, the relevant error made by the Administrative Appeals Tribunal was not jurisdictional, because the decision was lawful on an independent ground that was not affected by error.

35    The question of materiality was considered by the High Court again in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421. There, the question in issue in the three appeals before the Court was the materiality of a failure of the Administrative Appeals Tribunal to accord procedural fairness by not disclosing an invalid notification ostensibly made under s 438 of the Migration Act. Bell, Gageler and Keane JJ held at [2] that a breach of an obligation to disclose the notification was a jurisdictional error if, and only if, the breach was material, and that the breach would be material if it operated to deny the applicant an opportunity to give evidence or make arguments to the Tribunal and thereby deprived the applicant of the possibility of a successful outcome. Their Honours went on to state that proof of materiality rested on the applicant for judicial review. At [46], their Honours stated –

46    Where materiality is in issue in an application for judicial review, and except in a case where the decision made was the only decision legally available to be made, the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof. Like any ordinary question of fact, it is to be determined by inferences drawn from evidence adduced on the application.

36    At [48] and [50], their Honours stated –

48    In the case of an invalid notification, where the court on judicial review of a decision of the Tribunal can infer that the Tribunal left the notified document or notified information out of account in reaching its decision, the question that still remains is whether there is a realistic possibility that the Tribunal’s decision could have been different if it had taken the document or information into account. The court must be careful not to intrude into the fact-finding function of the Tribunal. Yet the court must be alive to the potential for a document or information, objectively evaluated, to have been of such marginal significance to the issues which arose in the review that the Tribunal’s failure to take it into account could not realistically have affected the result.

…

50    In order to inform curial determination both of how the Tribunal in fact acted in relation to the notified document or notified information and of whether its decision could realistically have been different if the relevant breach had not occurred, evidence of the content of the document or information is relevant and admissible.

37    The application of the principles identified above is illustrated by the consideration of one of the three appeals before the High Court, SZMTA, where there were documents that were the subject of an invalid s 438 certificate that were not referred to in the Tribunal’s statement of reasons. At [69], Bell, Gageler and Keane JJ identified that the court below had failed to determine “whether the Tribunal’s decision could have been different if the Tribunal had taken the documents and information into account”. Their Honours held at [70] that having regard to the contents of the documents before the Tribunal, the appropriate inference was that taking them into account could not realistically have made any difference to the Tribunal’s decision. Amongst other things, their Honours held at [71] that the significance of one of the documents, which was a letter of support, was to be evaluated in the context of the Tribunal’s rejection on credibility grounds of the factual basis of one of the central claims. That rejection had occurred taking account of a considerable number of other documents and letters of support, and it was held that it was “simply not realistic to conclude that yet another communication of that nature could have made any difference to the Tribunal’s evaluation of the first respondent’s credibility”.

38    The application of the principles in SZMTA demonstrates that the question of materiality is to be considered in relation to the actual decision under review, and not against the prospect that another decision-maker might take a different course. That is because the primary question before the Court in considering materiality is whether the decision in issue was made outside the scope of the statutory authority to decide, and not whether the granting of relief would be futile: cf, Hossain at [13]-[14] (Kiefel CJ, Gageler and Keane JJ) and at [78] (Edelman J), and Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141 at 145 (Mason, Wilson, Brennan, Deane and Dawson JJ).

39    Returning to the present case, the primary judge held for two reasons that the errors that his Honour identified in the Authority’s decision were not material. The first reason was that his Honour considered that no error had been identified in relation to the Authority’s finding that exceptional circumstances had not been shown to exist for the purposes of the necessary condition in s 473DD(a). It is accepted by the Minister on this appeal that in this respect the primary judge was in error. The judge was in error for the reasons explained in AUS17 v Minister for Immigration and Border Protection [2020] HCA 37 at [11] to which I referred above, namely that if either s 473DD(b)(i) or (ii) is engaged, then that is a circumstance that must be factored into the subsequent assessment of whether the new information meets the criterion in s 473DD(a). I record here that AUS17 post-dated the primary judge’s decision, which was supported by other authority which his Honour cited.

40    The Authority found that neither s 473DD(b)(i) nor (ii) was engaged. Had it been satisfied that either was met, then it was required to factor that finding into its evaluation of whether it was satisfied that exceptional circumstances existed for the purposes of s 473DD(a). Taking those matters into account could have resulted in a different outcome in relation to whether the Authority was satisfied that exceptional circumstances existed. For that reason, the Authority’s errors in relation to the application of s 473DD(b)(i) or (ii) were material to the Authority’s consideration of s 473DD(a), and on appeal this was not in issue between the parties.

41    The second reason for which his Honour held that the Authority’s errors were not material is that his Honour considered that a proper consideration of the Salvation Army letter by the Authority could not have made a realistic difference to its conclusion in relation to the appellant’s claim based upon his religious beliefs. I have already set out at [27] above the material passage at [15] of the Authority’s statement of reasons as to why it did not consider the letter to be credible personal information. It is necessary to say more about the Authority’s reasons for rejecting the appellant’s claims based upon his religious beliefs.

42    The Authority stated in its statement of reasons at [26] that the appellant had provided “extremely inconsistent and contradictory information about his religious beliefs”. The Authority referred to what it considered to be inconsistencies in the material before it –

(1)    the passage in the 2013 declaration, to which I referred in [9] above;

(2)    the appellant’s application dated 12 October 2015, in which the appellant stated that his religion was Shia Muslim, to which I referred at [12] above;

(3)    the statements made by the appellant in his interview in January 2016, to which I referred at [13] above; and

(4)    the submissions that the appellant made in his letter to the Authority dated 12 September 2016, to which I referred at [18] above.

43    The Authority concluded at [31] of its statement of reasons –

… While I accept that the applicant has attended church in Australia, I do not accept that he has been genuinely exploring Christianity. The shifting and changing evidence about this, together with my negative view of his overall credibility leads me to conclude that the applicant’s interaction with Christian communities in Australia has been engaged in primarily because he thought it might assist his claims to refugee status, although I accept that he has also been motivated by the social interaction with his friends who also attend. I do not accept that this attendance at church would be known to the Iranian authorities and I do not accept that the applicant would face harm for this reason should he return. I do not accept that he would seek to practise the Christian religion in Iran not because he would be afraid to do so, but because he is not a Christian.

44    The appellant had also claimed before the primary judge that the Authority’s finding that the Salvation Army letter was inconsistent, and therefore was not credible, was illogical and unreasonable. The primary judge rejected this claim, holding that the Authority’s reasoning was open to it. That finding was initially challenged by the appellant in this Court, but the challenge was abandoned and is therefore not in issue.

45    The primary judge’s reasons for holding that the letter could not realistically have made a difference to the outcome, and the primary judge’s reasons for holding that the Authority’s conclusions were open to it, were in some respects intermingled at [61] to [67] of his Honour’s reasons for judgment. In relation to the materiality of the Salvation Army letter to the result, the primary judge held at [62]-[63] –

62    First, the Authority in this matter had the Letter before it and clearly and self-evidently engaged with the content of the Letter. The Authority expressly considered the information in the Letter and the possibility that the Applicant might have developed a strong Christian faith between his last contact with the delegate in July 2016, or after the delegate’s decision in August 2016, and the date of the Letter. So much is apparent from the following sentence contained within paragraph [15]:

If it were the case that the applicant had developed a strong faith and become a Christian between his last contact with the delegate in July 2016, or after the delegate’s decision was made in 19 August 2016, this rapid development would, in my view, cast significant doubt on its genuineness especially in light of the applicant’s comments at the TPV interview in January that he really had no intention of taking up a new religion’

63    Second, the Authority made findings in relation to the Letter. As noted above, it expressly found at paragraph [15] that there was a significant doubt about the genuineness of the Applicant taking up a new religion. It reached such a conclusion after setting out and examining the history of the Applicant’s statements as to his Christianity and considering and weighing those statements alongside the content of the Letter. This was not a case where the Applicant does not know what the Authority concluded in respect of the Letter.

46    The primary judge then held that there was ample material which could support the Authority’s conclusion that the statements in the Salvation Army letter did not reflect a genuine commitment to Christianity, before concluding at [67] –

67.    For all of the above reasons, I am satisfied that the errors made by the Authority could not have realistically made a difference to the outcome, and I am also satisfied that the reasoning of the Authority was neither illogical or unreasonable.

The appellant’s grounds of appeal to this Court

47    The appellant maintained the following two grounds of appeal –

1.    The Federal Circuit Court erred in finding that the IAA’s misconstruction of s 473DD(b)(i) of the Migration Act 1958 (Cth) (the Act) in finding that the information in a letter from [the Salvation Army] could have been provided before the delegate’s decision was not material to the ultimate outcome.

2.    Further and alternatively, the Federal Circuit Court erred in finding that the IAA’s misconstructions of “credible personal information” in its application of s 473DD(b)(ii) of the Act to the facts in finding that [the Salvation Army letter] was not “credible” was not material to the ultimate outcome.

48    I have already referred to the appellant’s case as argued on appeal, namely that the primary judge was in error in finding that the Authority’s errors could not realistically have made a difference to the outcome, and were therefore not jurisdictional.

Consideration

49    Senior counsel for the Minister argued with some force that, having regard to the Authority’s reasons for concluding that the information in the Salvation Army letter was not credible, there was no realistic prospect that the Authority would have come to a different view in relation to the appellant’s claims if it had determined to consider the information in the letter. Counsel relied in particular on the statements in [15] of the Authority’s reasons, set out at [27] above, that the letter contained information that was inconsistent with other information provided by the appellant, to which the Authority referred. While there was much merit in the submissions made on behalf of the Minister, I have respectfully come to a different view from that taken by the primary judge.

50    In Hossain at [78], Edelman J observed that the assessment of whether a person was deprived of the possibility of a successful outcome “does not take place in a universe of hypothetical facts”; rather, the materiality of an error “is assessed against the existing facts before the Tribunal”. Nonetheless, the assessment does involve a past hypothetical which, as Mortimer and Bromwich JJ explained in Chamoun v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 66 at [70], may involve some nuance in approach, which may mean that the Court cannot simply take the decision-maker’s reasons as they stand –

On judicial review, where there is an identification of legal error and an assessment of whether it was an error which should be characterised as jurisdictional, there is a significant element of reconstruction involved. The reviewing court is asking: what if the repository of the power had (relevantly here) properly understood the nature of his power? That reconstructive exercise cannot simply be done by taking the reasons and findings as they stand, because those reasons are a product which incorporates the misunderstanding. The approach must be more objective, and nuanced, than that. Otherwise, there is a risk that the decision-maker’s reasons are used in a way which amounts to prejudgment. Such prejudgment would itself normally give rise to error. It cannot be used as proof of immateriality.

51    In this appeal, the question of materiality is to be assessed on the basis that the Authority was not satisfied that s 473DD(b)(i) or (ii) was engaged, which involved errors. Those errors are properly accepted by the Minister to have been material to the Authority’s consideration of whether it was satisfied that there were exceptional circumstances for the purposes of s 473DD(a). That acceptance by the Minister carries with it an acceptance that there must have been some realistic possibility that the Authority, if it had correctly directed itself, would have been satisfied that the Salvation Army letter contained credible personal information in the sense that it was capable of being accepted as reliable, and that there was also a realistic possibility that the Authority would have been satisfied that there were exceptional circumstances to justify considering the new information. One must take account of those possibilities when addressing the remaining question that arises, which is whether there was a realistic possibility that the new information might have led to a different outcome for the appellant.

52    There are four material observations to be made about the Authority’s reasons at [15] of its statement of reasons for deciding not to consider the Salvation Army letter.

53    First, the Authority’s statement that it was not apparent why the letter could not have been provided to the delegate, was possibly a product of the Authority’s erroneous consideration of s 473DD(b)(i). Had the Authority given consideration to s 473DD(b)(i) in a way that did not involve error, then there was a realistic possibility that it might have assessed in a different way the possible reasons why a letter such as the Salvation Army letter was not given to the delegate.

54    Second, the Authority rejected the letter as being credible because it “appears to be” inconsistent with other information, and because other information, and in particular the appellant’s 2016 declaration, “cast significant doubt” on the genuineness of the claim that the appellant had developed a strong faith, and had become a Christian. These were expressions of scepticism about the reliability of the new information in the letter, but fell short of complete rejection of it. This may be compared with a case bearing some similarities to the present case, ABH18 v Minister for Home Affairs [2020] FCA 620, where the Authority concluded that the central piece of new information was “implausible”, which led Charlesworth J to conclude that the Authority had in substance given consideration to the new information, with the consequence that the Authority’s error in applying s 473DD was not material. In this case, the Authority did not address as part of its deliberative process whether the new information could be reconciled with the other material, or whether it should be rejected. To cast doubt upon the new information at a threshold procedural stage was akin to rejecting one piece of circumstantial evidence when considered alone: cf, Chamberlain v The Queen (No 2) [1984] HCA 7; 153 CLR 521 at 535-6 (Gibbs CJ and Mason J).

55    Third, the Authority accepted that the Salvation Army letter expressed views genuinely held by its author. That acceptance points to a realistic possibility that upon a full consideration of all the material, the author’s statements that the appellant had become a Christian and was very strong in his Christian faith might have carried some weight. And if some weight had been given to the views expressed in the letter, there was a realistic possibility that the Authority may have assessed the appellant’s credibility differently.

56    Fourth, the contents of the letter bore directly upon claims that the Authority rejected, including that he had turned his back on Islam, and that he would seek to practise his Christian faith. The letter could not be characterised as being of marginal significance. The Authority may reasonably have concluded that the letter was capable of being corroborative of the appellant’s claims in his submission to the Authority dated 12 September 2016, and if it was viewed in that way, there was a realistic possibility that the complexion of the Authority’s assessment of the appellant’s credibility may have been different.

57    The arguments of counsel for the Minister in support of the submission that there was no realistic possibility of a different outcome pointed to some cogent reasons to doubt whether the Authority would have come to a different conclusion upon its review of the appellant’s application had it determined to consider the information in the Salvation Army letter. However, and as senior counsel for the Minister accepted in argument, the question is not whether there was a likelihood that the decision would have been different, but whether objectively there was a realistic possibility of a different outcome. In SZMTA at [48], which I have set out at [36] above, Bell, Gageler and Keane JJ cautioned against the court intruding into the fact-finding function of the decision-maker, but stated that the court should be alive to the potential for a document to have been of such marginal significance to the issues on review, that failure to take it into account could not realistically have affected the result. I am cautious about rejecting a realistic possibility of a different outcome when the contents of the letter, if accepted, might have gone some way to corroborating some elements of the appellant’s claims, and where the Authority’s consideration of those claims and the appellant’s credibility did not necessarily take a sequential path, with elements of the claims considered in isolation from each other: Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 [2003] HCA 30; 198 ALR 59 at [14] (Gleeson CJ).

58    For all these reasons, notwithstanding the merit and attraction in the submissions that were put on behalf of the Minister, in the factual circumstances of this case I am persuaded to accept the appellant’s submission that as a result of the Authority’s errors in the application of s 473DD, the appellant was denied a realistic, as opposed to a fanciful, chance of a different outcome.

Conclusion

59    The appeal will be allowed. There will be orders that Constitutional writs issue. I will determine costs on the papers.

Associate:    

Dated:    17 November 2020