Federal Court of Australia

AAZ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 407

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed and the notice of contention upheld.

2.    The appellant pay the first respondent’s costs as agreed or assessed.

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

REASONS FOR JUDGMENT

ALLSOP CJ:

1    This is an appeal against orders made by the Federal Circuit Court of Australia on 29 May 2020 dismissing the appellant’s application for judicial review of a decision of the second respondent, the Immigration Assessment Authority (IAA). The IAA had affirmed a decision of a delegate of the first respondent (the Minister) to refuse the appellant’s application for a Safe Haven Enterprise (subclass 790) visa (SHEV application). The SHEV application was refused because the delegate and the IAA determined that the appellant was not a non-citizen in respect of whom Australia has protection obligations.

2    The appellant is a Sunni Muslim from the Baghdad Province of Iraq. He arrived in Australia in 2013 and submitted his SHEV application in November 2016. The appellant made a number of claims in his SHEV application, including that in 2010 he had been the subject of a targeted bomb attack. The appellant claimed that the bomb had been planted in his car and had exploded while he was driving. He claimed that he was seriously injured as a result of the attack. It is the IAA’s treatment of the appellant’s evidence concerning this attack which was the subject of the appeal to the Federal Circuit Court and is the subject of the present appeal.

3    In his SHEV application, the appellant stated:

23. One time when I was driving to Anbar a bomb was attached to my car – it exploded after I had been driving for 2-3 hours. See attached police report.

24. The force of the explosion lifted my car into the air and there was lots of noise and dust.

25. I was found unconscious by some fellow drivers who took me to the local hospital. I spent 3 weeks in hospital and decided I was no longer safe in Iraq.

4    The appellant attended an interview with the delegate in August 2018 (SHEV interview). At that interview the appellant claimed that he had a number of surgeries after the car bombing and had scars on his body. The delegate summarised the information provided at the SHEV interview concerning the car bombing as follows:

When questioned at [the] SHEV interview regarding his claimed car bombing, he stated that in 2010 he was driving by himself from Ramadi to Baghdad when near Fallujah he felt a “bump” on the back of his head and then woke up in hospital with no memory of what had happened. He stated that the explosion caused a “problem in the back of [his] neck” requiring operations to remove shrapnel. No medical or physical evidence was provided as to the nature of his injury.

The applicant initially maintained that following the car bomb attack, which according to the letter submitted from al-Majd Police Station occurred on 22 January 2010, he spent only “3 weeks” in hospital, before deciding it was no longer safe to remain in Iraq, however he did not depart for Turkey until December 2010. When it was put to the applicant that this contradicted his earlier statement that [his colleague’s] murder in 2010 was his reason for departure he stated that he had made a mistake as it was a long time ago and that the murder actually occurred in 2009, although he provided no explanation for the conflicting statements or for choosing to remain in Iraq for [a] further year. … On further questioning about the bombing the applicant then contradicted himself again, stating that he spent “a month and a half” in hospital before being released and staying at his uncle’s house for six months in Al Anbar and a further few months at home in Baghdad (prior to departure to Turkey).

5    The transcript of the SHEV interview suggests that the appellant attempted to show the delegate his scarring during the interview:

Member: Okay. So the explosion happened. How long were you in hospital for then?

Applicant: I was in hospital for one and a half months.

Member: Did you say like a few months?

Applicant: Yeah a few months. At the hospital one and a half months. And then I stayed at home for 11 months because I cannot walk normally because my head is like this big. I got too many things still on my head. Not surgery just to remove a couple of things. After 6 months I got two things on here.

Member: Is a scar there?

Applicant: I don’t know if you can see. Actually too many of them.

Member: No really. You got hair on them.

Applicant: Two of them yeah so first thing I stayed one and a half months in the hospital and then I stay 6 months at my uncle’s house. And then after five months I have to go to the hospital to do small surgery to remove couple of them not all of them.

6    In an affidavit affirmed on 23 March 2020, which was filed in the proceeding below, the appellant stated that he had shown the delegate scarring to his head, face, right foot and leg, and left and right hands.

7    In October 2018, the delegate refused to grant the appellant a visa. The protection visa decision record reflects that the delegate had concerns about the appellant’s credibility, finding that his responses at the SHEV interview were “inconsistent and contradictory, both internally and with his written statements provided previously to the Department”. After outlining a number of contradictions in the appellant’s evidence in respect of a number of the claims that he made, the delegate stated:

the sheer volume of contradictions, inconsistencies and omissions pertaining to these key events in the applicant’s claimed timeline cannot be attributed to memory problems or that the amount of information imparted to the applicant’s legal representative was overwhelming. Instead I find it is evidence the applicant has fabricated events in order to bolster his refugee claims.

8    The delegate did not accept that the appellant was the victim of a targeted car bombing.

9    The matter was referred to the IAA for review pursuant to Part 7AA of the Migration Act 1958 (Cth). In late November 2018, on two occasions, the appellant’s migration agent made submissions and sent further material to the IAA on his behalf. Included in the further material were photographs of different parts of the appellant’s body purporting to show the scarring incurred by the appellant as a result of the 2010 car bomb attack.

10    In early December 2018, the IAA affirmed the decision of the delegate to refuse the appellant’s SHEV application. Before addressing the appellant’s claims for protection in its reasons, the IAA considered whether the material provided on behalf of the appellant in November 2018 constituted “new material” under s 473DC of the Act. Sections 473DC and 473DD provide:

473DC Getting new information

(1)     Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:

(a)     were not before the Minister when the Minister made the decision under section 65; and

   (b)     the Authority considers may be relevant.

(2)     The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.

(3)     Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:

   (a)     in writing; or

(b)     at an interview, whether conducted in person, by telephone or in any other way.

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.

11    The IAA found that the photographs of the appellant’s scarring constituted “new information” under s 473DC(1). The IAA was not satisfied that there were exceptional circumstances to justify considering the photographs as new information under s 473DD, stating at [15] of its reasons:

Several photos said to depict the injuries in the applicant’s body were also provided, showing scars on different parts of his body. They appear to have [been] taken in a home setting. No information was provided as to when they were taken. Neither is any explanation or medical evidence about the scars noting there could be many explanations. I note the applicant’s evidence at the interview was he had surgery performed on his neck. I also note that the delegate raised concerns that no medical or physical evidence was provided as to the nature of the applicant’s injury. I consider the new information has very little probative value as evidence that the injuries/scars were the result of the claimed targeted bombing of his car in 2010. I am not satisfied there are exceptional circumstances to justify considering this new information.

12    At [16], the IAA summarised the appellant’s claims as follows:

•    He is a Sunni Muslim of Arab ethnicity from Baghdad, Iraq. His parents and all his siblings reside in Baghdad.

•    He worked as an electrician after obtaining a degree in that area. His older brother is a qualified electrical engineer. He worked with his older brother as a subcontractor on US aid restoration projects.

•    He and his family were threatened due to their being Sunnis and the work of him and his brother.

•    His family were forced to leave home on 21 May 2006 and were not allowed to return until 15 September 2009.

•    In January 2010, he was subjected [to] a bomb attack which was planted in his car while he was driving. He was seriously injured as a result.

•    He travelled to Turkey. He was registered with the UNHCR in Turkey, and was granted resettlement rights in USA.

•    He participated in a freedom protest in Baghdad in March 2013.

•    He is very opinionated which would lead to him of [sic] being targeted and killed in Iraq.

•    In Australia he married an Australian citizen (Iraqi refugee) with whom he had young children.

•    He fears harm as a Sunni Muslim, who is persecuted by the majority Shia population and regime and he is at a heightened risk due to his work in the US aid projects.

13    At [17]–[32], the IAA made a number of factual findings concerning these claims. These paragraphs outline in detail the inconsistencies in the appellant’s evidence in his written application and SHEV interview. At [19], the IAA stated that it found the appellant’s evidence concerning his claims to have been harmed and to fear harm due to his Sunni religion and his work associated with the US army to be “confused and largely inconsistent”.

14    At [21], the IAA accepted that before the appellant’s family relocated to Anbar in 2006, due to sectarian conflict, they might have received anonymous threatening notes or had graffiti painted on their wall with the words to the effect that they had to leave because they were Sunnis. The IAA did not accept, however, that any threat the family received before their displacement in May 2006 was related to the appellant or his brother’s work with the US army. The IAA recounted the appellant’s evidence concerning his alleged work as an electrician on US aid restoration projects at [22]–[25]:

22. The applicant’s evidence as to the work he did for the US aid projects and the threat received has not been consistent. The applicant stated in the visa application that he worked as an electrician on a subcontractor basis to perform maintenance tasks at US army base from June 2004 to December 2010, and that since he was employed by the US Army, he and his family faced increased attacks. His employer was shot dead by unknown militia assailants. Not long after that his family home was shot at and a threatening notes was left in their garage saying that he and his brother had to leave Iraq or else they would be killed. The applicant further claimed he was subjected to a targeted bomb attack on his car in January 2010.

23. When asked at the interview, the applicant initially stated that he did this work from 2003 to 2007. He stated that he and his brother obtained this work through A. He stated that he did not work in the US army base and only went to [the] army base to obtain ID cards so he could enter the work site. He gave examples of his work involving rebuilding damaged schools, which involved hundreds of people. He said his brother M was working as a supervisor and every contract of theirs could last for one and a half years. The applicant claimed that he also worked as a driver/security guard for the MP Mr Al Juboori from August 2009 to December 2009 and he did this job along with other jobs because it was shift work. He also stated that he was in Syria for six months in 2009. His evidence does not suggest his work on the US aid projects was substantial or regular.

24. When asked at the interview when the first trouble started, the applicant claimed that he personally received a phone call in 2010 (he later changed it to 2009) threatening him because he worked for the Americans. He also initially confirmed that he had faced no problems from 2004 until 2010. He stated he didn’t take the phone threat seriously until A was killed, that was when he and his brother stopped the work involving US aid projects and went to live with his uncle in Anbar. He stated that A was shot a few months after the applicant was threatened by phone, though there an earlier attempt on A’s life. When it was put to him that A being shot in 2010 was not consistent with the claimed timing of the bombing of his car in January 2010, the applicant then stated A was shot in 2009. I note this evidence was also not consistent with what he stated in the visa application that he worked for the US army base from June 2004 until December 2010.

25. In response to the delegate’s questioning on the threatening notes at the interview, the applicant did not refer to the claim made in the visa application that his family home was shot at and a note was left in their garage saying he and his older brother had to leave Iraq or else would be killed. Later during the interview he claimed that a car exploded 20 metres from his house and his younger brother was injured. The applicant further claimed that due to the fear that the explosion may have been a targeted attack on the applicant and his older brother because of their work, his older brother and his younger brother went to live in Syria for six months before returning to Iraq, during which time the applicant he himself was already in Syria. This claim was not raised in the visa application. Given the claimed significance of this incident, the lack of any mention of it in the visa application casts serious doubt as to the veracity of this claim. The car exploded 20 metres away from his house. I consider it is speculative to assert it was targeted at the applicant or his brother. I am willing to accept a car bomb may have exploded near the applicant’s home, but I am not satisfied it was targeted at the applicant, his brothers or his family. I am not satisfied that his younger brother was injured as a result or that his brothers travelled to Syria for the reasons claimed.

15    At [26], the IAA set out the appellant’s evidence concerning the alleged car bomb attack:

In respect of the alleged bomb attack on his car, although this claim was made in his entry interview, his evidence overall was not compelling. In his visa application, he stated it occurred when he was driving to Anbar (from Baghdad), whereas in the interview he stated it occurred when he was driving on his way to Baghdad. His evidence was also not consistent as to the time he spent in the hospital. In the visa application he stated that he spent three weeks in hospital. At the interview, he initially stated that he stayed in the hospital for a considerably longer period (nine months) and later stated he was in hospital for one and a half months and stayed at home for 11 months. Later again he stated that he spent six months in his uncle’s house and had undergone further surgery after five months. The applicant provided a document said to be a police report of the incident dated 27 January 2010 and vehicle registration certificate indicating a Mercedes registered in his name was targeted by a bomb on 22 January 2010. No documentation relating to his injury and hospital treatment was provided. The applicant stated at the interview that he needed the police report for insurance claim. The police report does not mention his personal injury.

16    At [27]–[28], the IAA recounted the appellant’s evidence on his departure from Iraq some time in 2011, including his travel to and work in Turkey, his recognition as a refugee in Turkey and his opportunity to resettle in the United States. At [29], the IAA set out the appellant’s evidence concerning his departure for Australia:

The applicant stated in the visa application that he returned to Iraq in January 2013 as the person he was living with in Turkey had been granted and accepted resettlement in the USA. His evidence again changed over time relating to the period leading to his departure for Australia. He did not claim in the visa application that he went to Erbil, Kurdistan due to concerns about his safety. However, at the interview, he stated he was only in Baghdad for less than 10 days and spent most of his time in Erbil, as it was too dangerous in Baghdad. This would suggest that he left Baghdad in January/February 2013. When he was asked about the claim of participation in a peace protest in Baghdad in March 2013 made in his visa application, he responded it was a long time before he went to Turkey, maybe 2011 but he was not sure. However, towards the end of the interview, after having a chance to consider the concerns put to him by the delegate, the applicant recounted a number of dates he had recorded in his phone. This includes that he left Baghdad on May 2013 and three weeks before he left he went to a protest. When it was put to the applicant that this contradicted his earlier evidence that he was in hiding in Erbil in the days leading up to his departure, the applicant stated that he was confused. I further note that in his visa application he stated that he left his family home on 1 May 2013 and travelled to Erbil and stayed there for four days before leaving for Iran and then for Australia.

17    At [30]–[32], the IAA made a number of adverse findings as to the appellant’s credibility:

30. At the interview, the applicant attributed some of the inconsistencies to possible errors in communication with his lawyer who prepared his visa application. When it was put to the applicant that as a matter of due diligence, the lawyer would normally have given him the opportunity to correct the statement, he stated that he corrected it when he saw errors, maybe there was some misunderstanding. He also stated that he could not remember some of the timing because there were too many dates. While I accept that miscommunications can occur, the applicant’s evidence at the interview relating to a number of key aspects of his material claims was also internally inconsistent and often changing. The applicant is seeking asylum in Australia. The applicant is well educated. He had sought asylum in Turkey. Given the alleged brutal attack on him and person A and the claimed reason for the attack which was linked to his work for the US army backed projects, I consider these matters would be significant events in his life. In light of the volume of significant contradictory information provided, I am not satisfied the discrepancies was due to miscommunications with his lawyer. I do not accept he could not recall the timing of significant incidents at the interview was because there were too many dates. I consider the applicant has not provided a truthful account of his past experience relating to his material claims.

31. On balance and in light of the applicant’s relatively detailed description of his contractor work for the US force involving rebuilding schools or other projects, I accept the applicant might have done some contractor work while he was also engaging in private electrical work. Although the visa application referred to a copy of his US Army ID card, it was not attached to the application and the applicant stated at the interview that he did not keep either an original or a copy of the card. He provided a number of documents relating to the work for the MP Mr Al Juboori and provided plausible details about this work. He was also able to speak with relative details about his work for the pharmaceutical company and his training/travelling overseas in this role. I accept he had worked in these jobs. I consider it is much more likely he and his brother’s work on the US army funded projects was on and off and irregular. This is also explained by that he worked as a bodyguard for the MP in late 2009 and he was in Syria for six months in 2009. I am satisfied the applicant had continued his subcontracting work on the US aid projects up until the end of 2010 as stated in his visa application on an irregular basis before he moved on to work for the pharmaceutical company.

32. In light of my concerns about the applicant’s credibility and the prevalence of document fraud in Iraq, I give the police report and the vehicle registration certificate no weight. Even though person A might have been killed, I am not satisfied that the applicant and his brother were targeted because of their work on US backed projects. I accept that the applicant was accepted by the UNHCR as a refugee in 2012/2013, although the reasons for that recognition are not before me. On the evidence before me, I do not accept the applicant received a threatening phone call, noting his brother who was supervising hundreds of people, did not received a phone call himself. I do not accept his family home was shot at, or a threatening note left in their garage because of his and his brother’s work. I do not accept that he and his brother had to move as a result. I do not accept a bomb exploded near his family home was targeted at him or his family. I also do not accept that the applicant’s car was targeted by a bomb. The applicant claimed at the interview that he had surgeries done because of his injury which had left him with scars on his body. I accept the applicant may have been previously injured or scarred, but I am not satisfied it was in the circumstances claimed. I do not accept that the applicant participated in a protest in Baghdad either in 2013 or earlier. I do not accept he spent most of his time in Erbil after [he] left Turkey in January 2013 fearing his safety in Baghdad. I do not accept that the applicant’s unwilling to resettle in the US was because he was resentful that the US had destroyed Iraq or he was worried that it would place his family at an increased risk, noting he had worked on the US aid projects for a number of years and had approached the US Army base in obtaining identification cards. I do not accept his mere assertion that [the] US was not safe. The applicant’s unwillingness to resettle in the US further supports a finding that he was not threatened or targeted by any one in Iraq before he went to Turkey seeking asylum or before he finally left Iraq in 2013. I am not satisfied that the applicant was of adverse interest to anyone in Iraq, including but not limited to Shia militias or the Iraqi authorities.

18    At [34]–[45], the IAA considered whether the appellant had a well-founded fear of persecution, concluding at [45]:

Overall, I am not satisfied that the applicant faces a real chance of being subject to violence or any other harm, for reasons of his residence in Baghdad, his Sunni ethnicity, his or his brother’s past work, his time in Australia, and/or his seeking of asylum in Turkey or in Australia or any other reason, if he were to return to Baghdad, Iraq now or in the reasonably foreseeable future. I am not satisfied that the applicant has a well-founded fear of persecution for any of the reasons claimed.

19    For the same reasons, the IAA concluded at [49] that the appellant did not face a real risk of significant harm if he were to return to Iraq.

The decision of the Federal Circuit Court

20    In January 2019, the appellant sought judicial review of the IAA’s decision before the Federal Circuit Court. The amended originating application relied upon at the hearing before the Federal Circuit Court judge set out two grounds for review:

1.     The Authority erred in not considering the photographs of the applicant’s scarring as it erroneously treated them as containing new information for the purposes of s 473DD of the Act.

2.     The Authority erred in relying upon evidence that did not exist as it found that the applicant stated at the interview that he needed the police report of the bombing of his car for an insurance claim when the applicant made no such claim.

21    On 29 May 2020, the Federal Circuit Court judge dismissed the application for review. In respect of ground 1, the Federal Circuit Court judge found that the IAA had erred in its finding that the photographs provided to it were new information. At [25]–[26], the Federal Circuit Court judge stated:

25. The Court accepts that by the applicant attempting to show the scars to the delegate, and the dialogue surrounding that, there was information before the delegate about scarring which was said to be the result of the alleged car bombing in January 2010. The question for this Court’s consideration was whether the later provision of photographs of bodily scarring on the applicant’s body constituted ‘new information’ or not.

26. The photographs provided to the Authority clearly depicted scarring. The photographs relied upon, obviously, only constituted a visual narrative of what the applicant claimed to be the result of the alleged bombing. There was no supporting medical evidence which had been put before the Authority which might have, in conjunction with a viewing of the photographs, added an extra novel context or dimension to what had already occurred before the delegate when the applicant had shown his scars to the delegate, and said to the delegate that he had suffered such scarring as a result of the bombing. The photographs were merely confirmatory of those earlier claims.

(Footnote omitted.)

22    The Federal Circuit Court judge then considered whether the photographs constituted “new information” under s 473DC of the Act. His Honour cited the following passage in BJK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCAFC 171; 272 FCR 15 at 22 [30]–[32], where the Full Court considered whether photographs provided to the IAA of scarring to an applicant’s abdomen were “new information” in circumstances where the applicant had shown the scarring to the delegate in an interview:

[30] There is scope to doubt whether the photographs amounted to “new information”. It was not in question that the Minister’s delegate was shown, in person, the Father’s abdominal scarring. The information conveyed to him in person was, if not the same, then at least very closely related in nature to the information conveyed by the photographs. Both purported to (and, presumably, did) communicate the nature and extent of the Father’s abdominal scarring. That being so, the Father’s contention that the photographs were not “new information” is superficially attractive.

[31] It might be slightly less so in light of the fact that the photographs were taken many months after the Minister’s delegate’s visual inspection of the Father’s abdominal scarring. A visual observation of a particular state of affairs made at a particular point in time might not assimilate the same information as an equivalent observation at a later point in time. The information conveyed to the Minister’s delegate (by means of his visual inspection) might more specifically be characterised as the nature and extent of the Father’s abdominal scarring at that point in time. A photograph of the scarring taken at some other point in time might not convey the same information.

[32] As interesting as that question might be to ponder, it is not one that requires further analysis. This ground can be dismissed on the safer and more immediate footing that the error it bespeaks (if there was one) was not material to the Father’s Review Decision.

23    As suggested by [32] set out above, the Full Court did not conclude one way or the other as to whether the photographs constituted new information. Their Honours instead concluded at 272 FCR 23 [38] that the alleged error was not material to the IAA’s decision:

The photographs (which were in evidence before both the FCCA and this court) depict no more than what the Authority readily accepted: namely, that the Father had endured what appeared to be significant medical difficulties in the past. There is no prospect that the Authority might have decided anything differently had it taken account of the Father’s photographs. Even assuming that it erred by characterising them as “new information” — itself a proposition open to doubt — that error was immaterial to the result.

24    The Federal Circuit Court judge concluded at [31] of his Honour’s reasons that, to the extent the IAA found that the photographs constituted new information, it was in error:

The Court is persuaded that it should follow the obiter of the Court as expressed in BJK17. The scarring as depicted in the applicant’s photographs was clearly visible, and the Court infers that they were the same as, or not materially different to, the scarring earlier shown to and described by the applicant to the delegate. It was old scarring depicted in photographs which were undated. It was clearly open for the Authority to find that the photographs were of very little probative value as evidence that the scars were the result of the claimed targeted bombing of the applicant’s car. The photographs were also not probative of how the applicant was injured such that scarring occurred.

25    In relation to ground 2, the Federal Circuit Court judge accepted that the IAA had erred when it stated that the appellant had obtained the police report so that he could make an insurance claim. The Federal Circuit Court judge cited the relevant portion of the SHEV interview transcript, which clearly showed that the appellant made no such statement:

Member: After the explosion and you were fearing for your life you went to the Police did the Police give you a report.

Applicant: Because when you lose your car you have to prove where’s your car gone because most of the people lose the car. So basically because a lot of cars get stolen and then they get used for explosives so in order to wash my hands of the car basically we have to go to the Police station and report that the car was bombed basically.

26    Despite finding that the IAA had made the errors identified by the appellant, the Federal Circuit Court judge dismissed both grounds on the basis that the errors were not material to the IAA’s decision. At [38], the Federal Circuit Court judge found that the photographs and the erroneous insurance claim finding were issues “peripheral to the important questions which had to be addressed by the Authority”, stating at [38]–[40]:

38. … On those important questions, the Authority made findings adverse to the applicant after having cumulatively considered all of the evidence before it. Relevantly, the Authority found as follows:

a)     The photographs were of little probative value when assessing the applicant’s claims as to whether the applicant sustained injuries and was scarred as a consequence of the alleged car bombing in 2010.

b)     The Authority pointed to a significant number of discrepancies and inconsistencies in the claims made by the applicant, causing the Authority to find, at [30] of its reasons, that the applicant had not provided a truthful account of his past experiences relating to his material claims. The Authority made adverse credibility findings at [26], [27], [30] and [32] of its reasons.

c)     The Authority did not accept that the applicant’s car had been targeted for bombing. The Authority accepted that the applicant had scarring but was not satisfied that such scars were due to the claimed car bombing.

39. The adverse credibility findings made by the Authority went to the root of the applicant’s claims for fearing harm should he return to Iraq. The fact that the Authority failed to have regard to the photographs provided to it was unsurprising in the light of the applicant not providing any contemporaneous photographs of alleged injuries sustained by the applicant in 2010 consistent with a car bombing, or any medical report verifying that the applicant had sustained injuries as claimed at that time. A series of photographs lacking any factual context was of no value to the Authority. Even if the Authority had considered that there were exceptional circumstances justifying its consideration of the photographs, any such consideration could not have realistically resulted in the Authority arriving at a different decision.

40. The same considerations apply to the Authority’s insurance claim finding. Though the error on the part of the Authority is incapable of explanation, the making of such error was not critical to, or material to, the final decision arrived at by the Authority. Put another way, the Authority was not distracted from properly arriving at a considered decision by its having made the erroneous insurance claim finding. Such finding, in any event, was inconsequential in the light of the Authority’s other finding that the car bombing, as claimed by the applicant, did not occur. In the light of such finding, the reason for the making of any report to the police was irrelevant. The error was within jurisdiction.

27    The Federal Circuit Court judge concluded his reasons by finding, at [43], that the decision could not be considered legally unreasonable or as one lacking an evident and intelligible justification, in the sense discussed by the High Court in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at 363 [66] and 367 [76].

The grounds of appeal

28    The appellant now appeals from the judgment of the Federal Circuit Court. In his notice of appeal, filed on 12 June 2020, the appellant relies on three grounds:

1.     The primary judge erred in finding that the breach of the Act by the Authority in excluding as new information photographs of the applicant’s scarring was not sufficiently material to amount to jurisdictional error.

2.     The primary judge erred in finding that the reliance by the Authority upon the fact that the applicant had reported the bombing of his car to the police for insurance purposes when there was no evidence that this was the purpose of the report was not sufficiently material to amount to a jurisdictional error.

3.     The primary judge should have found that there was a jurisdictional error arising from the errors of the Authority identified in grounds 1 and 2 hereof both individually and in combination.

29    On 15 July 2020, the Minister filed a notice of contention containing one ground, namely that the Federal Circuit Court judge erred by concluding that the photographs were not “new information” before the IAA within the meaning of s 473DC(1) of the Act. The Minister contends the Federal Circuit Court judge ought to have held that the IAA did not err in finding that the photographs were “new information”. It is convenient to deal first with the issue raised by the notice of contention.

Were the photographs “new information”?

30    Part 7AA of the Act, which provides for a fast track review of decisions in which a delegate of the Minister has refused to grant a protection visa, has been examined by the High Court in detail on a number of occasions: Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 264 CLR 217 at 225–232 [13]–[38]; BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; 373 ALR 196 at 198–201 [3]–[17]; CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; 375 ALR 47 at 48–50 [2]–[8]; Minister for Immigration and Border Protection v CED16 [2020] HCA 24; 380 ALR 216 at 222–223 [21]–[24] and 224 [30]; ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; 383 ALR 407; AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; 384 ALR 196 at 197–200 [2]–[13]; Minister for Home Affairs v DUA16 [2020] HCA 46; 385 ALR 212; and DVO16 v Minister for Immigration and Border Protection [2021] HCA 12.

31    The IAA when conducting its review is engaged in a de novo consideration of the merits of the decision that has been referred to it: Plaintiff M174/2016 264 CLR at 226 [17]. The “simplified outline” to Part 7AA, contained in s 473BA, states that the IAA is “required to pursue the objective of providing a mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3 (conduct of review)”: see also s 473FA. It describes the review as “on the papers”: see also s 473DB(1) which precludes the IAA from accepting or requesting new information or interviewing a referred applicant. The limitation in s 473DB(1) is, however, expressed to be “subject to” the remainder of Part 7AA, which leaves some room for the IAA to “fashion its procedure” in a given review: Plaintiff M174/2016 264 CLR at 235–236 [49]. The IAA may depart from s 473DB(1) when the terms of s 473DC and s 473DD are met.

32    The statutory regime is premised on the IAA examining the same information that was before the Minister: ABT17 383 ALR at 410 [8]. In this respect, s 473CB requires the Secretary to provide to the IAA all material provided by the referred applicant to the delegate (as the person making the decision) before the decision was made and any other material that is in the Secretary’s possession or control and is considered by the Secretary to be relevant to the review.

33    “New information” is defined in s 473DC(1) (dealing with “getting” new information) as documents or information that were not before the Minister when the Minister made the decision under s 65 and the IAA considers may be relevant. The information will be relevant if it is capable of rationally affecting the IAA’s assessment of the probability of the existence of some fact about which the IAA might be required to make a finding in determining afresh whether or not to be satisfied that the criteria for the grant of a protection visa have been met: CED16 380 ALR at 222 [23] and ABT17 383 ALR at 410 [9]. Under s 473DD, the IAA must not consider any new information unless the IAA is satisfied that there are exceptional circumstances to justify considering it and the applicant satisfies the IAA that the new information was not, and could not have been, provided to the Minister or is credible personal information which was not previously known and, had it been known, may have affected the consideration of the applicant’s claims. For a discussion of the principles concerning s 473DD and the meaning of “exceptional circumstances”, see the recent Full Court decision of ELQ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 27 at [5]–[14] and the High Court decision of AUS17 384 ALR at 197–200 [2]–[12].

34    Justices Gageler, Keane and Nettle addressed the meaning of “new information” in Plaintiff M174/2016 264 CLR at 228 [24]–[25]:

[24] The term “new information” must be read consistently when used in ss 473DC, 473DD and 473DE as limited to “information” (which may or may not be recorded in a document), in the ordinary sense of a communication of knowledge about some particular fact, subject or event, that meets the two conditions set out in s 473DC(1)(a) and (b). The first is that the information was not before the Minister or delegate at the time of making the decision to refuse to grant the protection visa. The second is that the Authority considers that the information may be relevant.

[25] There is no inherent dichotomy between new information which meets the two conditions set out in s 473DC(1)(a) and (b) and review material which the Secretary is required to give the Authority under s 473CB. That is because review material is not limited to information that was before the Minister or delegate at the time of making the decision to refuse to grant the protection visa.

(Emphasis added and footnotes omitted.)

35    The plurality in Plaintiff M174/2016 264 CLR at 228 [24] referred to SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2; 150 FCR 214 at 259 [205], in which I stated:

Information is that of which one is told or apprised; it is knowledge communicated concerning some particular fact, subject or event: The Complete Oxford English Dictionary (2nd ed, 1991). In this context, the word has been taken as referring to knowledge of relevant facts or circumstances communicated to, or received by, the Tribunal: Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 at [3], approved in VAF at [24] or knowledge which has come to, or has been gained by, the Tribunal: Paul at [95].

36    At 264 CLR 229 [27], in the context of the paragraphs cited above, the plurality in Plaintiff M174/2016 stated:

Information contained in review material given to the Authority by the Secretary that was not before the Minister or delegate at the time of making the decision to refuse to grant the protection visa will become new information if and when the Authority considers that the information may be relevant. The Authority will not need to invoke s 473DC in order to receive that new information. However, given that the Authority’s obligation under s 473DB(1) to conduct its review by considering the review material is subject to Pt 7AA, the Authority will need to comply with s 473DD, and where applicable s 473DE, if the Authority is to take that new information into consideration.

37    It is important to note that Part 7AA distinguishes between the statutory concepts of “information” (specifically, “new information”) and “review material”: see in this respect the recent Full Court decision of Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AWT19 [2021] FCAFC 58 at [53]–[63] and High Court decision of DVO16 [2021] HCA 12 at [15]. As Kerr and Mortimer JJ noted in AWT19 at [54], s 473CB refers to “review material” in the sense of the form in which information has come to be embedded or stored. In contrast, the term “information” is used in a deliberately open-ended context. The information is “new information” because it is new to the consideration of the visa application; the information does not need to be chronologically new, as the definition in s 473DC makes plain: AWT19 at [60]. Note, however, that in CED16 380 ALR at 222 [21], the majority applied the holding in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at 440 [28] concerning the same terminology in Part 7 of the Act to Part 7AA to conclude that “the term information in the context of [Div 3] cannot sensibly be read as extending beyond knowledge of facts or circumstances relating to material or documentation of an evidentiary nature”.

38    In the recent decision of ABT17, the High Court considered the circumstances in which the IAA could and should exercise its power to get and consider new information under ss 473DC and 473DD. The majority held that the IAA’s power to invite an applicant to an interview is subject to an implied condition of reasonableness, and this reasonableness condition can compel the IAA to exercise the powers at its disposal to get and consider new information in order to supplement the review material so as to place itself in as good a position to assess credibility as had been the delegate. In coming to this conclusion, the majority identified the potential for what it referred to as an “informational gap”. This “informational gap” arose from the absence of a requirement on a delegate to record information acquired from an applicant in a prescribed way: see ABT17 383 ALR at 410–411 [10]–[12]. The majority stated at 411–412 [13]–[16]:

[13] However, the potential for a record of an interview conducted in accordance with the Code of Procedure to take a variety of forms creates potential for an informational gap to arise in the review material where an interview with the referred applicant has been conducted by the delegate in person and has been audio recorded but not video recorded. Provision of the audio recording as part of the review material will then not put the Authority in the position of having and being able to examine for itself the totality of the information available to the delegate and required by the Code of Procedure to be considered by the delegate when making the referred decision. Missing from the review material will be a visual impression of how the referred applicant appeared during the interview — his or her demeanour.

[14] An informational gap of that nature has potential to impact on the Authority’s assessment of the credibility of the account given by the referred applicant during the audio recorded interview and in turn has potential to impact on the Authority’s assessment of the referred applicant’s overall credibility. “Impressions formed by a decision-maker from the demeanour of an interviewee may be an important aspect of the information available to the decision-maker.” That has “long been recognised” and continues to be appreciated despite awareness on the part of sophisticated decision-makers that “an ounce of intrinsic merit or demerit” measured by reference to objectively established facts and the apparent logic of events “is worth pounds of demeanour”.

[15] The potential significance of demeanour is illustrated by the present case. Here, as will be seen, the Authority was troubled by a concern that the appellant’s evidence in his audio recorded interview with the delegate was generally lacking detail and at times vague and hesitant. An interview was the obvious means by which the Authority might seek to resolve these matters of concern, given that the Authority was evidently not convinced by the country information alone to uphold the delegate’s ultimate decision, however “plausible” the appellant’s account of his personal circumstances might be. At an interview the Authority could seek answers in relation to those aspects of the appellant’s evidence that troubled the Authority by raising questions which had not previously been raised with the appellant. The Authority could thus develop an informed impression of the credibility of the appellant based on his responses to such questions and an observation of his demeanour. The appellant’s responses and the demeanour of the appellant inextricably associated with them would be new information relevant to his personal circumstances.

[16] There can be no doubt that the powers of the Authority to get and consider new information enable the Authority to bridge such an informational gap by inviting the referred applicant to a further interview to be conducted in person or by video link in order to assess and consider his or her demeanour for itself. The Authority’s own visual impression of the referred applicant’s appearance during such an interview would necessarily constitute new information within the power of the Authority to get because it would communicate knowledge of an evidentiary nature which would be open to be considered by the Authority to have the potential to bear on the Authority’s assessment of the referred applicant’s credibility and which was not before the Minister when the delegate made the referred decision. The new information so got by the Authority would then meet the preconditions to its consideration by the Authority on the basis that it was not and could not have been before the Minister when the delegate made the referred decision and on the basis of the Authority’s satisfaction that the existence of any informational gap is sufficiently aberrant within the scheme of de novo review for which Pt 7AA provides to make existence of the informational gap in the particular review alone enough to constitute “exceptional circumstances” justifying its consideration irrespective of how frequently such an informational gap might arise in practice.

(Emphasis added and footnotes omitted.)

39    As the Full Court noted in AWT19 at [67], the approach taken by the majority in ABT17 (with Nettle, Gordon and Edelman JJ in dissent on this point) indicates that the concept of “new information” is to be construed relatively literally. Drawing upon the majority’s statement at 412 [16] of ABT17, Kerr and Mortimer JJ stated at [67] that the way a narrative told to the delegate is then told to the IAA can be “new information”. The reality that the topics within the narrative may have been relayed to the delegate will not prevent the telling of the narrative to a new decision maker being “new information” in circumstances where the new decision maker can see and hear a person. As I explained at [3] of AWT19:

… Parliament is not to be taken to have created a procedure whereby the character of “new information” is to be denied because it can be logically deduced (proof by comparative experience being impossible by reason of the loss of the recording) that some of the words used before the delegate will be repeated before the Authority or that most of the words used (as translated) by the applicant at the interview will be on the same subjects discussed earlier with the delegate. Such logical strictness (perhaps pedantry) is not demanded by the language of Part 7AA. The procedure under Part 7AA is supposed to be an efficient, but fair, way of reviewing material and information given to a delegate and available to the Secretary. Recognising the true nature of translation (DVO16 at [4]–[8]), and even assuming English may be the language of an applicant, to deny the ability to remedy an informational gap by denying the character of newness to an entirely fresh oral recounting of events on subjects, because there has been an earlier oral recounting about the same subjects (the record of which has been lost), and thereby create either procedural gridlock or an interference with or an undermining of fair efficacy of the procedure, is not demanded by the words of Part 7AA.

40    In AWT19, the Full Court held (at [51]) that where a recording of the applicant’s interview with the delegate is not available or where for some different reason there is an “informational gap”, then the question for the IAA is whether it is necessary for the purposes of the discharge of its review task to remedy the “informational gap”.

41    In the present case, an “informational gap” was necessarily created when the appellant showed the delegate his scarring in the SHEV interview and the delegate (although acting conformably with Div 3 of Part 2 and the Code of Procedure) did not record that information, preventing some record of the information from forming part of the review material provided to the IAA by the Secretary. As the Full Court said in AWT19, it is then a decision for the IAA as to what to do about that informational gap. This will depend upon whether the IAA thinks it is necessary for the purposes of the discharge of its review task to remedy the informational gap and if so how. AWT19 and the cases cited at [49] of that decision demonstrate that much will depend on the centrality of the informational gap to the particular review being undertaken by the IAA. In ABT17, the visual appearance of the applicant, including his mannerisms and demeanour, was central to the credibility findings of the delegate and this meant that the IAA was obliged to invite the applicant for an interview to cure that informational gap by allowing the IAA to see for itself the applicant’s demeanour and appearance.

42    Here, it is unnecessary to determine whether the IAA would have been obliged to invite the appellant to an interview to cure the informational gap because the appellant himself proffered that information in the form of photographs attached to his submissions.

43    On the majority’s construction of “new information” in ABT17, the information contained in those photographs was necessarily “new information” in the sense that it was not before the delegate at the time the delegate made his or her decision. Whilst the topic of the information conveyed in the photographs was a topic covered in the interview with the delegate, namely the scarring to the appellant’s body, the facts, knowledge or opinions conveyed or communicated about that topic were not the same. For example, and as the Minister submitted, the information conveyed by a three dimensional, in-person inspection of the scarring, in the particular conditions of the room in which the interview was conducted, was necessarily different to the information about the scarring conveyed by two-dimensional photographs of the appellant taken in a home setting on an unspecified date.

44    The Federal Circuit Court judge concluded that the scarring as depicted in the appellant’s photographs was clearly visible, and his Honour inferred that they were “the same as, or not materially different to, the scarring earlier shown to and described by the applicant to the delegate”. It is not in question that the photographs are of the appellant’s body. It should be noted, however, that the areas of the appellant’s body shown in the photographs do not accurately match the areas that the appellant in his affidavit identified as being shown to the delegate. It is somewhat difficult to determine what areas of the appellant’s body are shown in the photographs, but the photographs appear to depict the appellant’s head, elbows, torso and both legs and feet.

45    As explained above, the appellant in his affidavit stated that he showed the delegate his head, face, right foot and leg, and left and right hands. The relevant part of the transcript, which was relied upon by the Federal Circuit Court judge in the portion of his Honour’s reasons which dealt with this issue, set out at [5] above, suggests that the appellant showed the delegate scarring to his head. There is no indication in the affidavit evidence nor transcript that the appellant showed the delegate scarring to his torso, elbows, left leg and left foot. It is difficult to accept the Federal Circuit Court judge’s conclusion that the scarring shown in all of the photographs was the “same as, or not materially different to, the scarring earlier shown to and described by the applicant to the delegate” in circumstances where the appellant says he showed different areas of his body, and thus different scars, to the delegate compared to those portrayed in the photographs.

46    The scarring shown in at least some of the photographs could not have been in substance the same scarring shown to the delegate in person because it was on different areas of the appellant’s body. This distinction is important in circumstances where the appellant has submitted in this Court that the materiality of the scarring, or its probative strength, is in the sheer number of scars and the consistency of the scarring across his body, including the depth and age of the scars. It was the cumulative effect of the scarring that the appellant placed reliance on in his submissions to assert that the scarring was corroborative evidence of a car bomb attack.

47    Based on the appellant’s account of the areas of his body that he says he showed to the delegate and the SHEV interview transcript, the photographs of the scarring to the appellant’s torso, elbows, left leg and left foot constitute new information for the purposes of s 473DC and s 473DD. In addition to the analysis set out above concerning all of the photographs, this provides an additional basis to conclude that, to the extent the Federal Circuit Court judge found that these photographs were not new information, this finding was in error.

48    The appellant submitted that a conclusion that the photographs were not new information would be consistent with previous decisions of this Court. The appellant referred to the decision of Bromwich J in ABJ17 v Minister for Immigration and Border Protection [2018] FCA 950; 260 FCR 295, which was cited by the Federal Circuit Court judge. In ABJ17, the appellant had provided the IAA with an English translation of a court document from Iran. While the translation was given to the IAA, only the original, untranslated copy of the document had been given to the delegate. The IAA determined that the information contained in the translated document was information that was before the delegate at the time of making the decision under review and, thus, the IAA determined that the translated court document did not constitute “new information” for the purpose of s 473DC. The IAA then proceeded on the basis that it was not required to satisfy the requirements of s 473DD before considering the translated document. In concluding that the translated document was not new information under s 473DC, Bromwich J made the following comments at 260 FCR 304–305 [21]–[23]:

[21] The Minister further submits that the English translation of the summons comprised “information” as that word is understood in s 473DC(1), that is “evidentiary material” or “knowledge communicated or received concerning some fact or circumstance” that was before the delegate when the original decision was made, citing, respectively, SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 at [18] and Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 at [53]. The Minister submits that, objectively, the original and translated document communicated the same information and both the delegate and the Authority received the same information. It is said that the original summons was not able to be comprehended by the delegate solely due to her inability to comprehend Farsi. However, that lack of comprehension did not change the nature or content of the information communicated by the document or received by the relevant decision-maker.

[22] The Minister’s submissions must be accepted and preferred to those for the appellant. It should be observed that the appellant’s submissions were advanced on a somewhat bifurcated basis, with it being contended separately that the translation was neither a “document” nor “information” that had been before the delegate. For present purposes at least, I do not consider it to be sound to treat the reference in s 473DC(1) to “documents” and to “information” as having any meaningful difference in application to the translation document; rather, the terms reflect only that “new information”, as it is globally defined, may be manifested differently, but the focus of the provision remains on confining the review to the substance of what was before the delegate unless quite stringent criteria are met. This is the entire purpose of the scheme for review in Pt 7AA. The phrase “documents or information (new information)” in s 473DC(1) must be read in a substantive and practical way and as part of a unified scheme, not in an unduly technical way.

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

49    In DFS16 v Minister for Home Affairs [2019] FCA 944; 166 ALD 410, the appellant had initially provided in support of his visa application a document in Tamil, which was provided to the IAA as part of the review material pursuant to s 473CB. The appellant then gave an accredited English translation of the Tamil document to the IAA. The IAA had reasoned that the translation was not new information. The appellant in DFS16 submitted that the decision of Bromwich J in ABJ17 was plainly wrong and inconsistent with the statement of the plurality in Plaintiff M174/2016 264 CLR at 228 [24], set out above at [34], because a translation of a document amounts to a “communication of knowledge about some particular fact”. Justice Kerr held that Bromwich J’s conclusion was not “plainly wrong”, nor was it inconsistent with the plurality’s decision in Plaintiff M174/2016 because there was “nothing in the reasoning of the plurality … to suggest that what constitutes information should be understood as contingent on the Tribunal’s capacity to apprehend it”: DFS16 166 ALD at 423 [57]. At 166 ALD 424 [70]–[74], Kerr J stated:

[70] The Secretary gave the document in Tamil, conveying that information, to the Authority pursuant to s 473CB as part of the “material provided by the referred applicant to the person making the decision before the decision was made”.

[71] Thereafter the applicant took it upon himself to provide the Authority with an accredited translation of that document into English. He did so. The applicant does not contend, and has never contended, that that translation was inaccurate in any respect.

[72] Mr Jones’ submission that the Authority received that translation as a “communication of knowledge about some particular fact”, being the meaning in English of the document, might be thought to import a degree of artificiality to the analysis.

[73] On one view, all that occurred was that DFS16, then thinking it to be in his interests to do so, provided the Authority with the means to enable it (accurately) to comprehend “information” he himself had earlier put before the delegate. The position would appear to be indistinguishable from that as would apply had the delegate failed to open an encrypted document and had therefore ignored it, but later the applicant had provided the Authority with the technical means of de-encrypting it. Despite its different embodiment, it would be the same information. In such a circumstance, s 473DC is not engaged; there never would have been a provision of any “new information”.

74 Such reasoning would be consistent with Bromwich J’s analysis in ABJ17 at [22] …

50    In indicating his agreement with the conclusion Bromwich J, Kerr J stated at 166 ALD 425 [78]:

… I am not persuaded that what the plurality stated at [24] in M174 must be read as if it were a dictionary definition of “information”. In the context of that passage as a whole, including their Honours’ footnoted reference to Allsop J’s reasoning in SZEEU, the reading I refer to at [60]-[62] as being available, appears to me more likely to have been that which the plurality intended. It concerned the subject matter of the information, not the manner in which the information was manifested. Having reached that conclusion, I would adopt what was stated by Bromwich J at [22] that s 473DC(1) of the Act “must be read in a substantive and practical way and as part of a unified scheme, not in an unduly technical way.”

51    The decisions of ABJ17 and DFS16 must now be examined in the light of the High Court’s reasons in DVO16 [2021] HCA 12 at [4]–[6] where the majority said the following about the nature of translation in the context of Part 7AA review:

[4] The function of translation in a curial or administrative setting is interpretation of communications as accurately and completely as possible. The process of interpretation involves comprehension of words spoken or written in a source language, conversion to a target language, and delivery in a manner faithful both to the content of the words and to the register and style of the speaker or writer. That, at least, is the ideal.

[5] Long past is the time when an interpreter might have been thought to be appropriately described as a “translating machine” or “bilingual transmitter” performing a function “not different in principle from that which in another case an electrical instrument might fulfil in overcoming the barrier of distance”. More accurate is to conceive of an interpreter as a “bilingual mediating agent between monolingual communication participants in two different language communities” and to recognise that “total equivalence” between words spoken or written in a source language and words translated into a target language is a “chimera”. Translation is not a “simple word-matching exercise” but “a difficult and sophisticated art” which, “[t]o be done well”, “requires not only linguistic sophistication and sensitivity to ‘minor’ linguistic details (which may be correlated with vast differences in conceptualization), but also an intimate knowledge of the cultures associated with the language in question, of the social and political organization of the relevant countries, and of the world-views and life styles reflected in the linguistic structure”.

[6] Professor Wigmore noted the “peculiarity” of language that “the most perfect system of signs, the most richly developed language, leads only to a partial comprehension ... whose degree of completeness depends upon the nature of the subject treated, and the acquaintance of the hearer with the mental and moral character of the speaker”. Imperfections in communication arising out of mistranslation of words spoken or written in one language into another language are inherent in the human condition, as are imperfections in communication arising out of misuse or misunderstanding of words spoken or written in a common language. “Perfect interpretations” simply “do not exist”.

(Footnotes omitted.)

See also the reasons of Edelman J at [51]–[53].

52    These expressions of the matter by the High Court in the above passage reflect what was said by Wigney J in BVC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 565 at [98], where his Honour considered the correctness of the decisions of ABJ17 and DFS16, stating:

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

53    It is strictly unnecessary for the resolution of this appeal for me to decide the correctness or otherwise of ABJ17 and DFS16. I would only add my view that the question may not be whether an earlier decision of a single judge on appeal is “plainly wrong” but whether out of comity it should be followed. If I were required to come to a decision, however, I would, with respect, agree with the remarks of Wigney J at [98] of his Honour’s reasons in BVC20, particularly in the light of the High Court’s comments in DVO16.

54    During the course of the hearing of this appeal, I raised with counsel for the Minister whether the IAA had statutory authority to consider the information communicated by the photographs if I were to find that it was not new information, in circumstances where the photographs themselves were not before the delegate but the object of the photographs, being the scarring, had been shown to the delegate in person, and the photographs were not material forwarded to the IAA by the Secretary. Counsel for the Minister submitted that the IAA would not have statutory authority to consider the information conveyed by the photographs at all if it was not deemed to be “new information”, but this was not a basis upon which the Minister sought to have the appeal dismissed. Consistent with the Minister’s submission, it appears that the IAA would not have authority to consider the photographs if they did not contain “new information” but were also not included in the “review material” provided by the Secretary, even if the requirements in ss 473DD (pertaining to when the IAA can consider new information) were satisfied. In the context of a legislative scheme for de novo review in which the IAA “has and examines for itself the same information that was before the Minister”: ABT17 383 ALR at 410 [8], this anomaly fortifies my conclusion as to the meaning of “new information” in ss 473DC and 473DD.

55    It is to be noted that this issue was not squarely addressed by the Court in ABJ17 and DFS16. In those cases, the IAA proceeded on the basis that it was considering the untranslated document, which formed part of the review material. According to the IAA, the English translation simply allowed it to better comprehend the content of the untranslated document. Such an approach is questionable in the light of the High Court’s comments on translation and interpretation in DVO16 and the clear distinction between “review material” and “information” elucidated by the High Court in DVO16 at [15] and the Full Court in AWT19.

56    For these reasons the Minister’s notice of contention should succeed. I do not consider that the IAA erred in finding that the photographs were new information. It was then open to the IAA to conclude that there were no exceptional circumstances to consider the information because the photographs were of little probative weight in circumstances where the IAA accepted the appellant had scarring. The photographs only conveyed this information and did not assist in establishing how the scarring was incurred.

Materiality of error

57    To establish jurisdictional error, the error or errors made by the IAA must be material in the sense that there is a realistic basis to consider that the IAA’s ultimate conclusion might have been different if the alleged error had not been made: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 at 134–135 [29]–[31] (Kiefel CJ, Gageler and Keane JJ); SZMTA 264 CLR at 433 [2]–[4] and 445–446 [45]–[50] (Bell, Gageler and Keane JJ); CRU18 v Minister for Home Affairs [2020] FCAFC 129; 277 FCR 493 at 506 [37].

58    The threshold for materiality was expressed by Bell, Gageler and Keane JJ in SZMTA 264 CLR at 445 [45] and [46] as follows:

[45] Materiality, whether of a breach of procedural fairness in the case of an undisclosed notification or of a breach of an inviolable limitation governing the conduct of the review in the case of an incorrect and invalid notification, is thus in each case essential to the existence of jurisdictional error. A breach is material to a decision only if compliance could realistically have resulted in a different decision.

[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.

59    An erroneous finding of fact, such as the IAA’s finding concerning the police report, will typically not amount, in and of itself, to jurisdictional error: CRU18 277 FCR at 503 [29] citing NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 167 at [9] (Heerey, Nicholson and Selway JJ). A finding of fact involving an error might constitute jurisdictional error if, for example, it is shown to be irrational, or unreasonable, or lacking in an intelligible justification (in the senses contemplated by authorities such as Li 249 CLR 332 (French CJ, Hayne, Kiefel, Bell and Gageler JJ) and Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at 647–648 [130] (Crennan and Bell JJ)) or where it had substantive centrality and importance: SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231; 77 ALD 402 at 407 [19]; Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; 267 FCR 628 at 640–641 [44]–[47]; and Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132; 271 FCR 595 at 624–625 [104]. Where an impugned finding is but one of a number of findings that independently may have led to the IAA’s ultimate conclusion, jurisdictional error will generally not be made out: Muggeridge v Minister for Immigration and Border Protection [2017] FCAFC 200; 255 FCR 81 at 90 [35(6)] citing Wigney J in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516; 69 AAR 210 at 221 [55]; and CRU18 277 FCR at 505–506 [35]–[37]. Where a decision-maker relies on intermingled findings or matters in coming to an ultimate conclusion and there is no proper basis for one of the findings, jurisdictional error may result: ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; 250 FCR 109 at 129 [74]; and CGA15 v Minister for Home Affairs [2019] FCAFC 46; 268 FCR 362 at 378 [61].

60    An error may be material if it affected the decision maker’s assessment of the appellant’s credibility: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 at 507–512 [36]–[44]. The assessment of materiality of an error in this context is complex, as observed by Lee J in SZTFQ v Minister for Immigration and Border Protection [2017] FCA 562 at [44] and [45]:

[44] It is not realistic to put the various aspects of the appellant’s evidence into hermetically sealed boxes or to approach the reasoning of the Tribunal member on the basis that this is how the evidence was approached. The assessment of credibility is necessarily an impressionistic one, which, if properly formed, takes into account all of the evidence. As the Full Court (Hill, Sundberg and Stone JJ) observed in VAAD v Minister for Immigration & Multicultural Affairs [2005] FCAFC 117 at [79] “an assessment of credibility is not necessarily linear”. Put another way, although it is not accurate to say that the Hospital Evidence was minor, as Gleeson CJ commented in Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 89, “[d]ecisions as to credibility are often based upon matters of impression, and an unfavourable view taken upon an otherwise minor issue may be decisive.” The finding that the appellant had been deceitful about the hospital was plainly not an issue the Tribunal member had considered to be peripheral to assessing his creditworthiness.

[45] To be too confident that emphatic disbelief on one issue would not inform, even subconsciously, the approach taken to weighing other evidence of the person disbelieved is, to my mind, to underplay the complexity of the anatomy of decision-making. As Kirby J observed in Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1 at 23 [81]:

… decision-making is a complex mental process. Disbelief of a litigant or witness on one point might carry over to affect the decision-maker's disbelief of the same person on other points. Contrary-wise, establishing that an initial disbelief of a person's credibility on one matter was erroneous might convince a decision-maker of the need to revisit other conclusions and to look at the person's entire evidence in a new light.

61    The appellant submitted that the IAA’s failure to consider the photographs and its error in relation to the purpose of the police report were material because both the photographs and police report were corroborative evidence of a central claim put forward by the appellant, being that he was the victim of a car bomb attack. The appellant submitted that had the IAA not made these errors, it may have come to a different conclusion as to whether the appellant had been the victim of a targeted car bomb attack and thus whether he was entitled to a protection visa. The appellant submitted that the two alleged errors were material to the adverse credibility findings made by the IAA in relation to the car bomb attack.

62    As the Minister submitted, and as the Federal Circuit Court judge found, the appellant’s submission in this respect is difficult to accept when the nature of the IAA’s credibility findings is appreciated. The IAA pointed to a number of discrepancies and inconsistencies in the appellant’s claims, causing the IAA to find at [30] that the appellant’s evidence at the SHEV interview relating to key aspects of his material claims was internally inconsistent and that the appellant had not provided a truthful account of his past experiences relating to his material claims. The inconsistencies in the appellant’s evidence as to the nature and duration of the work he did for US aid projects, the year in which his employer was murdered, the threats he and his family received, the explosion near his house and what triggered him to leave Iraq were highlighted at [22]–[25] of the IAA’s decision, set out at [14] above. Further inconsistencies in the appellant’s evidence concerning his departure from Iraq to Australia were highlighted at [29] of the IAA’s reasons, set out at [16] above.

63    In respect of the alleged car bomb attack, the IAA found at [26] that the appellant’s evidence was not compelling for the following reasons:

(1)    In his visa application, the appellant stated that it occurred when he was driving to Anbar (from Baghdad), whereas in his SHEV interview he stated it occurred when he was driving on his way to Baghdad.

(2)    The appellant’s evidence was not consistent as to the time he spent in hospital. In the visa application he stated that he spent three weeks in hospital. At the SHEV interview he stated that he stayed in hospital for nine months, then he stated he stayed in hospital for one and a half months and stayed at home for 11 months. Later in the interview, he stated he spent six months at his uncle’s house and had undergone surgery after five months.

(3)    No documentation relating to the appellant’s injury and hospital treatment was provided.

(4)    The appellant claimed that after the bomb attack he decided it was no longer safe in Iraq. He stated in his visa application that he travelled to Turkey and lived with his friend. However, he also gave evidence that he worked for a pharmaceutical company in Iraq from November 2010 to November 2011. At the SHEV interview he stated that he went to Turkey first in 2011 as part of his work for the pharmaceutical company. In this respect, the IAA found at [27] that the appellant’s continued presence in Iraq was not consistent with his claimed fear after the bomb incident.

64    There is no direct challenge by the appellant to the credibility findings made by the IAA, including those at [26], [27], [30] and [32] of its reasons. This is not always fatal to an appellant’s case where it is said that an error as to central evidence affects the credibility findings made by a tribunal: see SZQYM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 779 at [23] and [136]–[145]. This is not, however, a matter in which the IAA made findings on the appellant’s credibility based on a false factual premise: cf SZQYM at [140].

The photographs

65    The IAA accepted that the appellant had scarring, but it was not satisfied that the injury occurred in the circumstances claimed. The IAA concluded that the photographs were of little probative force because, although they were corroborative of an injury, they offered no assistance in identifying the cause of the injury; the IAA noted at [15] that there could be many explanations for the scars in the photographs. Indeed, without further explanation, the photographs were only capable of supporting a conclusion that the appellant had scarring to numerous parts of his body: see BJK17 272 FCR at 23 [38]. This information is of little probative value in circumstances where the IAA accepted, in the absence of the photographs, that the appellant had scarring to his body and had incurred some type of injury. It is unclear how consideration of the photographs could have altered the conclusion of the IAA in these circumstances. As the Federal Circuit Court judge found at [39]:

… a series of photographs lacking any factual context was of no value to the Authority. Even if the Authority had considered that there were exceptional circumstances justifying its consideration of the photographs, any such consideration could not have realistically resulted in the Authority arriving at a different decision.

66    The appellant’s submissions raised a new, albeit related, issue on appeal, being that the IAA (incorrectly) stated at [15] that the appellant gave evidence that he had surgery to his neck. It was said by the appellant that the probative effect of the photographs would have increased in the mind of the IAA if it had appreciated that the appellant said that he had undergone surgeries to his head, not his neck, because there were photographs of scarring to his head. Again, it is difficult to understand how this finding had any material impact on the IAA’s conclusion where the IAA accepted that the appellant had scarring to his body and may have been injured in the past.

67    The fact is that the photographs otherwise unexplained and without expert evidence or medical records take the matter no further and do not weaken the strong credibility findings made by the IAA.

The police report

68    The Minister conceded both at the hearing of this appeal and the hearing before the Federal Circuit Court judge that the IAA made an error when it stated that the police report had been obtained by the appellant for insurance purposes. The issue in dispute between the parties is whether this error was material.

69    The appellant submitted that this error was material because it affected the IAA’s assessment of the police report and its decision to give the report little weight, in circumstances where the report was a key piece of corroborating evidence that the appellant put forward to substantiate his claim that he had been the victim of a car bomb attack. It was submitted by the appellant that the IAA took an adverse view of the report because there was nothing in the report about the injuries suffered by the appellant and, if it had been obtained for insurance purposes, the report ought to have contained that information. According to the appellant, if the IAA had properly understood what the police report was purporting to do (which was, in effect, to establish that the appellant had been the victim of a bomb attack and not the perpetrator), then the absence of any reference to his injuries was quite explicable. The appellant submitted that the IAA’s finding that the document was false was affected by its misunderstanding as to why the appellant obtained the report.

70    With respect, it is difficult to conceive how the IAA’s finding that the report was for insurance purposes contributed to its adverse finding in relation to the appellant’s credit. The appellant submitted during the oral hearing that implicit in the IAA’s statement that the police report was obtained for insurance purposes was a conclusion that if the appellant had been reporting the accident for an insurance claim and he had been seriously injured, it would be natural for him to tell the police about the injuries and hope that the police would include it in the report so that the appellant could claim it on his insurance. Counsel for the appellant submitted that this formed part of the IAA’s reasons as to why this critical piece of corroborating evidence was not sufficient to overcome the other credibility concerns relating to the bomb incident. This submission is based on an assumption that the IAA thought that the report ought to have contained information about the appellant’s injuries because it was obtained for insurance purposes. With respect, the IAA made no such finding. It is not clear from the IAA’s reasons that the (inaccurate) fact that the report was obtained for insurance purposes had any bearing on its assessment of the report or its broader credit findings.

71    The appellant’s submissions ignore the reasons given by the IAA for rejecting the police report: the prevalence of document fraud as well as the broader credibility findings made in relation to the appellant’s evidence concerning his claims.

Other matters raised by the appellant that are said to go to materiality

72    The appellant raised a number of other matters which he submitted went to the realistic possibility of a different outcome if the matter were to be remitted to the IAA, including that:

(1)    The SHEV interview was conducted in English, which is not the appellant’s first language. The interpreter, who was present to assist the appellant when the interpreter thought it appropriate, only intervened in the interview on approximately ten occasions. This was not taken into account by the delegate or the IAA.

(2)    Both the delegate and the IAA relied upon, in part, the absence of medical records supporting the alleged bomb attack to dismiss that aspect of the appellant’s claims. The appellant submitted that he was not given any opportunity by the delegate to explain why he didn’t have any medical records and, given that he had been accepted as a refugee by the United Nations High Commissioner for Refugees (UNHCR) without having those records, it would not be expected that the appellant would try to get those records having already been accepted as a refugee without them. Counsel for the appellant submitted that the absence of medical records may have been explained by the instability in the region between 2014 and 2016.

73    These matters were not raised as separate grounds of appeal and counsel for the appellant conceded that, individually, they did not amount to jurisdictional error. The appellant submitted, however, that the matters were relevant as circumstances surrounding the decision which go to what is realistically possible on the matter being remitted to the IAA.

74    Two points can be made about these submissions. First, as a preliminary note, there is no evidence to suggest that the UNHCR granted the appellant refugee status on the same grounds as the claims made by the appellant in his SHEV application in Australia. The absence of medical records may or may not have been relevant to the UNHCR’s decision. Secondly, at the hearing of the appeal these matters were said by counsel for the appellant to affect the credit findings made by the IAA and, if rectified, may lead to a different conclusion on the credibility of the appellant if the matter were to be remitted. The difficulty with this submission is that the Court’s task is not to look at what could happen if the matter were remitted to the IAA to be determined again. The task is to look at the decision of the IAA that is before the Court and determine whether the outcome of that decision could or may have been different if the error had not been made.

75    For these reasons, the grounds set out in the appellant’s notice of appeal fail. The appeal should be dismissed with costs and the notice of contention upheld.

Associate:

Dated:    28 April 2021