Federal Court of Australia

CZC19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1083

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

YATES J:

Introduction

1    This is an appeal from a judgment of the Federal Circuit Court of Australia (the Federal Circuit Court) which dismissed the appellant’s application for judicial review of a decision of the second respondent, the Immigration Assessment Authority (the IAA). The decision under review was the IAA’s decision to affirm an earlier decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister) not to grant the appellant a protection visa (specifically, a Safe Haven Enterprise Visa (SHEV)) under s 65 of the Migration Act 1958 (Cth) (the Act).

2    The single question that arises in this appeal is whether, for the purposes of s 473DC(1) of the Act, certain information contained in a submission to the IAA, as part of a fast track review, was “new information”, or whether it was information that was “before the Minister” when the decision in respect of the appellant’s application for a SHEV was made. The appellant’s grounds of appeal are structured around this question.

3    Section 473DC(1) of the Act provides:

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

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

 (b)     the Authority considers may be relevant.

…

4    Section 473DD provides:

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.

Background

The appellant’s application for a SHEV

5    The appellant is a citizen of Iraq. On 17 May 2013, he arrived in Australia. On 6 April 2017, he applied for a SHEV.

6    His then claims for protection were that he was from Al Diwaniya, where he worked in the construction industry. His brother—referred to as “H”—worked to protect the then Prime Minister of Iraq, Nouri al-Maliki, as one of his retinue in the Green Zone. The Mahdi Army (MA) and the Asa’ib al-Haq (AAH) threatened the appellant. They wanted the appellant to ask H to stop working with the Prime Minister, who they accused of treason and of being a “stooge”. H had to stop visiting the applicant and other members of the family in Al Diwaniya. The threats increased. The appellant was sent a threatening letter with a bullet. The letter said that this was a “warning”. The appellant’s father became afraid for the appellant and H. The appellant complained to the Al-Jazaer Police Centre, and requested protection. No security or legal measures were taken, and the appellant became exposed to harm.

7    At the time he made these claims for protection, the appellant was represented by a registered migration agent.

8    On 29 March 2019, the appellant attended an interview with a delegate of the Minister. Prior to this interview, he changed his representation. A new migration agent accompanied him to the interview. Also, prior to his interview, the appellant advised that “much of what was in his statement of claims was not reliable”.

9    The delegate’s Decision Record states:

At the commencement of the PV interview, the applicant was advised that although the Department was aware that his application was prepared and submitted in 2016 with the assistance of a different migration agent and that he had since changed his representing agent, it was still his responsibility to ensure that all the information in relation to his PV application was accurate. He was asked to confirm if he was aware of what was in his application including his claims for protection. The applicant stated that he was aware of the content of his application, however, the statement of claims was ‘ninety percent incorrect’ and his claims were ‘completely different’. The applicant was advised that the statement of claims would in that case be disregarded and his claims presented at the PV interview would be considered in its stead.

Given the applicant’s concerns regarding the statement of claims submitted (as noted above) with his PV application, I have given no weight to discrepancies and omissions between the applicant’s narrative at the PV interview and the contents of his Statement of Claims submitted with his PV application. As such, in this decision, I have relied on primarily the applicant’s testimony at his PV interview as well as any other information already before the Department, for example, his arrival interview, where relevant. At the end of the interview the applicant’s agent made an oral submission, which has been considered in this assessment.

10    On 17 June 2019, the delegate refused the appellant’s application for a SHEV. The delegate’s decision was referred to the IAA under s 473CA of the Act.

H’s application for a TPV

11    H also left Iraq. On 7 July 2013, he arrived in Australia. On 6 October 2016, he applied for a protection visa (specifically, a Temporary Protection Visa (TPV)) under s 65 of the Act. He also attended an interview. As it happens, the interview was also conducted on 29 March 2019, with the same delegate who interviewed the appellant. H’s interview was conducted before the appellant’s interview. He was represented by the same, newly-appointed migration agent who represented the appellant.

12    The delegate’s Decision Record in respect of H’s application for a TPV states:

At the commencement of the PV interview, the applicant was advised that although the Department was aware that his application was prepared and submitted in 2016 with the assistance of a different migration agent and that he had since changed his representing agent, it was still his responsibility to ensure that all the information in relation to his PV application was accurate. He was asked to confirm if he was aware of what was in his application including his claims for protection. The applicant stated that he was aware of the content of his application but it had mistakes and was unclear.

Given the applicant’s concerns regarding the statement of claims submitted (as noted above) with his PV application, I have given no weight to discrepancies and omissions between the applicant’s narrative at the PV interview and the contents of his Claims statements submitted with his PV application. As such, in this decision, I have mainly relied on the applicant’s testimony at his PV interview and any information already before the Department for example, his arrival interview, where relevant.

At the end of the interview, the applicant’s agent made an oral submission, which has been considered in this assessment.

13    On 5 June 2019, the delegate refused H’s application for a TPV.

The IAA’s review of the decision in respect of the appellant’s application

14    On 23 July 2019, the IAA concluded its review of the appellant’s application and decided to affirm the delegate’s decision.

15    At [4] – [13] of its Decision Record, the IAA discussed the material that was before it. The discussion includes reference to a written submission that was provided by the appellant’s migration agent on 12 July 2019 (the IAA submission).

16    The IAA submission commenced by stating:

First, I would like to refer to the fact that the delegate of the department agreed to not to rely [sic] on the written statement of the applicant’s brother which was prepared by the former Migration agent due to the omissions in that statement, the delegate herself realised that the written statement of the applicant’s brother was not in fact a true reflection of what happened to the applicant in Iraq. The audio recording of the PV interview refers to this fact.

17    At [6] of its Decision Record, the IAA summarised that part of the delegate’s Decision Record which I have quoted at [9] above. At [7], the IAA reflected on whether there was a significant difference between the appellant’s statement of claims, as originally made, and the general claims he had made in his interview. Regardless of any difference, the IAA noted that, at the start of the interview, the appellant and his new migration agent had been told that the delegate would disregard the previous information that had been provided, and that the appellant would need to raise all his claims at the interview. The IAA noted further:

7.    … At the end of the interview the applicant was given time to consider whether he had covered everything that he wanted to talk about. When the interview resumed he said that there was nothing else that he wished to say. The current agent made an oral submission and did not raise any concerns with the delegate’s approach or indicate that there was information in the statement of claims or former agent’s statement, or information provided by H, that should be considered. The applicant and agent were advised that any information received before a decision was made would be considered. No further information or comment was provided in the three months before the delegate made the decision.

18    Having noted these matters, the IAA said:

8.    I am satisfied that the applicant and his current agent were aware that the delegate was only considering the claims that were raised and discussed at the interview. I am satisfied that the applicant had a real and meaningful opportunity to identify any claims that he had made in his application which he continued to press but which were not discussed at the interview, as well as any other information including information that could be provided by H. I am satisfied that the claims as presented at the interview are the claims that the applicant seeks to rely on. The applicant has not asked for an interview and in any event, for the same reasons as given above, I have considered, but decided not to exercise, my discretion to obtain further information or comment from the applicant on this issue.

19    The IAA then returned to the IAA submission. This submission referred to a statement made by H. At [9] of the Decision Record, the IAA noted that H’s statement was not in the review material (meaning, the material provided to the IAA under s 473CB of the Act) or in the IAA submission. The IAA then recorded that the IAA submission set out:

9.    ... what is presumably intended to be the “true” information about H and his history and activities in Iraq, and includes references to what appears to be H’s own interview with the Department. The information in the IAA submission relates to H’s role as a body guard for a former Iraqi prime minister and his coming to the adverse attention of certain militia groups. For the reasons I give further below, I have accepted that H worked in that role and came to adverse attention because of it. I have also accepted that the applicant was threatened in an attempt to get him to influence H. As I have accepted the claims that the new information appears to support, I am not satisfied that there are exceptional circumstances to justify considering this new information.

20    However, the IAA submission also set out two new claims, which the IAA also considered to be new information.

21    The first was an unsupported assertion by the migration agent, attributed to H, that a militia group had contacted the appellant’s and H’s father about them after they had come to Australia. As recorded in [10] of the IAA’s Decision Record:

10.    … The assertion is that after H left Iraq (which was after the applicant had left Iraq), people came to the father’s house to say that they were trying to contact H but he was not answering. The father told these people that the applicant and H were in Australia but the people did not believe him. Because of this, after H and the applicant were released from immigration detention, they took photographs outside Luna Park in Sydney and published these on Facebook to show everyone that they had left Iraq. No reference has previously been made to this information in the present matter and I am satisfied that it is new information. …

22    After noting a lack of evidentiary support for this new information, including a deficiency in materials supplied with the IAA submission, the IAA concluded that there were no exceptional circumstances which would allow it to consider the new information: s 437DD(a).

23    The second new information was an assertion by the migration agent that, in a post-interview submission, he had referred to H having shot at, and arrested, Al Qaeda members. The migration agent said that, because of this, H was at risk of harm from Al Qaeda and Islamic State, as well as the other militia groups (referred to above). At [12], the IAA rejected the contention that any such claim had been made on the appellant’s behalf:

12.    … Neither the applicant nor his agent provided a written post-interview submission in this matter. I have listened to the agent’s oral submission at the end of the SHEV interview but there is no reference to this incident or any claimed profile with Al Qaeda or Islamic State because of this incident in that submission. I am not satisfied that the applicant or the current agent raised this issue during or post the applicant’s interview and I am satisfied that this is also new information.

24    The IAA did not consider that this new information satisfied the criteria in s 473DD(b) (it was not credible) or that, under s 473DD(a), there were exceptional circumstances which would allow the IAA to consider it.

25    Therefore, acting on s 473DD, the IAA did not consider, for the purposes of the fast track review, the information that a militia group had contacted the appellant’s and H’s father, inquiring as to H’s whereabouts, or the information that H had shot at, or arrested, Al Qaeda members and that, because of this, H was at risk of harm from Al Qaeda and Islamic State as well as other militia groups.

The Federal Circuit Court

26    The appellant’s application for judicial review was based on a single ground:

1. The Authority failed to complete the exercise of its jurisdiction as the same delegate decided both the application of the applicant and his brother [H] – with [H] first and then the applicant. The information about [H] from [H’s] interview was known to the delegate at the time he/she made the applicant’s decision. The adviser relied upon this information in the submission to the IAA but the IAA excluded it as being new information. Because the delegate was aware of the information it was not “new information” and should not have been excluded by the IAA pursuant to s 473 DD of the Act.    

27    The appellant tendered the delegate’s Decision Record in respect of H’s unsuccessful application for a TPV. In that Decision Record, the delegate recounted H’s claims that he had been threatened by a person identified as Ibrahim Jabber. The threats were to “leave his job or be killed”. H also claimed that he was further told that, if he wished to stay in his role, he would be required to “meet their demands, which were to allow some of the people to enter the Green Zone and to release ... some prisoners”.

28    The primary judge referred to the following passage in the Decision Record:

... [H] claimed that after [the appellant’s] departure, he left the country to protect the rest of his family and feared that they would start threatening his father. [H] added that his father, on the other hand advised Ibrahim that both [H] and [the appellant] had left Iraq and apologised to Ibrahim that they did not help him when they were in Iraq. [H] claimed that his father said so to Ibrahim to protect the rest of the family.

Further, [H] claimed that he was scared of the AAH and Al Qaida both, because he had injured one and arrested three in his role with the PMO.

29    The essence of the appellant’s case for judicial review was that as H had attended an interview with the delegate on the same day as, but before, the appellant’s interview, the information which H had given to the delegate was information that was “before the Minister” when the delegate made her decision in respect of the appellant’s application for a SHEV. Therefore, the IAA erred in treating as “new information” the claim concerning Ibrahim’s visit to the appellant’s and H’s father, and the claim that H had shot at, and arrested, Al Qaeda members and feared harm from Al Qaeda, Islamic State, and other militia groups.

30    The primary judge rejected the appellant’s case. His Honour reasoned that:

31.    Taken to its logical extreme, the applicant’s submission amounts to a proposition that all information in relation to every application that has been before a delegate, would be before the Minister, in relation to every other application. The fact that the delegate was the same in both the applicant’s case and that of his brother is, to the Court’s mind, irrelevant. The Court agrees with the submissions of the first respondent that the term “before” must be referrable to the delegate, considering a particular application and a particular decision that the delegate makes, in respect of that application.

31    In coming to his conclusion, the primary judge took particular account of the comments made by the IAA at [7] of its Decision Record (quoted above). The primary judge also noted the requirements of s 5AAA(2) of the Act in relation to non-citizens claiming to be a person in respect of whom Australia has protection obligations:

For the purposes of this Act, it is the responsibility of the non-citizen to specify all particulars of his or her claim to be such a person and to provide sufficient evidence to establish the claim.

32    The primary judge also addressed the question of materiality, and decided that issue adversely to the appellant:

35.    An issue has arisen as to whether or not, even if the Court is wrong in the above analysis and the information was, in fact, before the Minister, that in light of the comments made by the Authority, as to the credibility of the information and the reasons for rejecting it, whether or not it would have made a difference. The relevant test is whether or not, had the information been received, there would have been a realistic prospect of a different outcome. The Authority proceeded on the basis that there had been a generalised threat made to the applicant, but was satisfied that, given the passage of time and the fact that the applicant’s brother H no longer resided in Iraq, that the applicant faced no real chance of harm now and in the reasonably foreseeable future, if he was returned to Iraq.

36.    The Authority also noted that no harm had befallen to the applicant’s father, younger brother, wife or others in the immediate family, since they had left Iraq. The Court is reasonably satisfied that, even had the information been accepted, there would have been no realistic prospect of a different outcome. Therefore, in terms of materiality the matter must fail.

33    The primary judge therefore dismissed the appellant’s application for judicial review, with costs.

The Appeal

Introduction

34    As filed, the appellant’s notice of appeal contained four grounds. In his written outline of submissions, the appellant foreshadowed an application to amend his notice of appeal to add an additional (fifth) ground. In response, the Minister did not object to leave being granted. That being so, on 28 June 2021 I granted leave to the appellant to file and rely on an amended notice of appeal raising the additional ground of appeal.

Ground 1

35    Ground 1 is:

The primary judge erred in finding that the delegate had advised the applicant that he would be disregarding his brother [H’s] statement and the applicant did not object to this.

36    This ground relates to a comment made by the primary judge in [8] of his Honour’s reasons, where his Honour was seeking to summarise aspects of the IAA submission. In doing so, his Honour said:

... Those submission states [sic] that the interview with the delegate, on 29 March 2019, the delegate agreed not to rely upon a written statement of the applicant’s brother H, as it was not a true reflection of what happened to the applicant in Iraq. The delegate said that they would disregard the statement and consider the claims that the applicant presented at his interview. The applicant agreed with this approach. At the conclusion of the interview, the applicant’s migration agent did not raise any claim that there was information contained in Hs [sic] that should be considered.

37    In fact, when dealing with the appellant’s application, the delegate said that she would disregard the appellant’s statement of claims, not H’s statement of claims, and consider the claim that the appellant presented at his interview: [6] of the Decision Record. Earlier, in [5] of the Decision Record, the IAA noted that, at H’s interview, the delegate had “agreed not to rely on” H’s written statement.

38    As the appellant submits, it seems that, in [8] of his Honour’s reasons, the primary judge “mixed together paragraphs 5 and 6” of the IAA’s Decision Record. This, however, is of no moment. It had no operative effect on the primary judge’s conclusion that the sole ground of review, on which the appellant relied, was not made out.

Grounds 2 and 3

39    These grounds can be dealt with together.

40    Ground 2 is:

The primary judge erred in concluding that The Authority had not failed to complete the exercise of its jurisdiction by excluding from consideration the adviser’s submission concerning what the applicant’s brother [H] had told the delegate in his interview with the delegate.

41    Ground 3 is:

The primary Judge should have found that the adviser’s submission concerning what the applicant’s brother [H] had told the delegate in his interview with the delegate was not “new information” as the same delegate decided both the application of the applicant and his brother [H] - with [H] first and then the applicant. Because the delegate was aware of the information it was not “new information” and should not have been excluded by the IAA pursuant to s 473DD of the Act.

42    These grounds are the cornerstone of the appellant’s appeal.

The appellant’s submissions

43    The appellant submits that, when the delegate made her decision in respect of his application for a SHEV, she was “actually aware” of the evidence that H had given in respect of his application for a TPV. Indeed, by comparing the Decision Record in respect of H’s application with the Decision Record in respect of the appellant’s application, the appellant submits that the delegate used the former as a template for the latter.

44    The appellant submits, correctly, that the primary judge construed the words “before the Minister” in s 473DC(1)(a) as confined to information that was before the Minister in the appellant’s application. The appellant submits that this construction is too narrow. He submits that if, in a given case, a delegate is actually aware of information, at the time the delegate makes his or her decision in respect of the visa application, then this information is “before the Minister” for the purposes of s 473DC(1)(a).

45    The appellant submits that there was no bar on the delegate using H’s evidence for the purposes of the appellant’s application, provided s 57 of the Act was complied with. He calls in aid cases in which, he says, the delegate fastened on “similarities in claims made by different applicants”, including one case (BRH18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 74 (BRH18)) in which he submits that the IAA accepted a submission that it should, in each of three separate fast track reviews, consider the three sets of submissions that had been provided, respectively, in the three reviews, in circumstances where the referred applicants were members of the same family—a matter which, the appellant points out, attracted no criticism from the Full Court.

46    The appellant submits that reliance on the fact that neither the appellant nor his migration agent referred to H’s evidence at the time of the appellant’s SHEV interview is misplaced. He submits:

19.    ... It was not necessary for them to refer the delegate to H’s evidence in order for that evidence to be before the delegate. As explained above, the hearing of H’s claims had immediately preceded the applicant’s hearing. The same delegate had conducted that hearing and the adviser had been present. It was clear that the delegate knew what H’s evidence was. The interconnected nature of their claims meant that it would be inevitable that the delegate would compare the evidence given by each brother. …

47    The appellant submits that the fact that the appellant’s migration agent summarised H’s evidence in the IAA submission provides “support” for the proposition that it was his desire and understanding that this information would have been used “at the time of the hearing before the delegate”.

48    The appellant also makes this submission:

20.     The construction of the primary judge means that in this case had the delegate made a single reference to the brother’s evidence then the information in the adviser’s submission was not new information-whereas even though the same information was physically in the delegate’s possession at the time of the applicant’s decision it was not before the delegate because the delegate made no reference to it in her reasons. This does not accord with AWL18 v Minister for Home Affairs [2021] FCA 235 and BDR18 v The Minister for Home Affairs [2020] FCA 212.

49    As to the form of the information “before the Minister”, the appellant submits that this should be treated as a matter of substance rather than “the specific physical manifestation which must have been before the Minister”. This submission seems to be directed to the proposition that, having had actual awareness of H’s evidence given at H’s interview, the information concerning H’s evidence, subsequently and separately summarised by the migration agent in the IAA submission, was, in substance, the same information, and not “new information”, when given to the IAA. In other words, the difference in form between the information which H had given orally to the delegate in respect of his application for a visa, and the migration agent’s own written summary of H’s evidence, as recounted in the IAA submission, does not mean that the information in the IAA submission is “new information”.

Consideration

50    I am not persuaded that these grounds reveal error by the primary judge.

51    At the outset, it is important to bear in mind that, even though these grounds, and the appellant’s submissions on appeal, speak generally of information of which the delegate was “actually aware”, the two matters of concern to the appellant’s appeal are the claim concerning “Ibrahim’s” visit to the appellant’s and H’s father, and the claim that H had shot at, and arrested, Al Qaeda members and feared harm from Al Qaeda, Islamic State, and other militia groups. This focus should not be lost. I will refer to these as the two claims.

52    Section 473DC(1) provides the distinguishing characteristics of “new information”: it is constituted by documents or information that the IAA considers may be relevant, which were not “before the Minister” when the decision under s 65 of the Act was made. By dint of s 473DD, in making a decision in relation to a fast track reviewable decision, the IAA must not consider any new information unless it meets the requirements of paras (a) and (b) of that provision. How s 473DD is to be applied is discussed in AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; 384 ALR 196 at [2] – [13].

53    The appellant contends that the two claims were “before the Minister” because the delegate had “actual awareness” of them because of H’s earlier interview. The Minister contends that the two claims were “not before the Minister” because they were not part of the appellant’s claims at his own interview with the delegate.

54    I do not accept the bare proposition that a delegate’s “actual awareness” of information, when making a fast track decision, means, necessarily, that the information is “before the Minister” for the purposes of applying s 473DC(1)(a) of the Act. As the Minister points out, expressed at this level of generality, the appellant’s proposition has no limits as to what information might be within the delegate’s “actual awareness”. The primary judge expressed the same criticism.

55    Further, the notion of “actual awareness” cannot have any useful, or indeed meaningful, role in determining what is, and what is not, “new information” for the purposes s 473DC of the Act. The notion certainly finds no expression within Pt 7AA itself. Apart from considering the review material referred to in s 473CB(1)(a) and (b), and what might be gleaned from that material, how is the IAA to know, for the purpose of conducting its review, the information of which the delegate has an “actual awareness”?

56    In the present case, it may be accepted, for the purposes of argument, that, at the time the delegate made her decision in respect of the appellant’s application, she was “actually aware” of the substance of H’s claims, including the two claims. The two claims were not, however, part of the appellant’s claims.

57    At his interview, the appellant, through his migration agent, disowned his statement of claims. The delegate informed the appellant that “it was still his responsibility to ensure that all the information in relation to his PV application was accurate”. The appellant was then asked to confirm his awareness of what was in his application, including his claims to protection.

58    After affirming his awareness, the appellant, again, disowned his statement of claims—“it was ‘ninety per cent’ incorrect and his claims were ‘completely different’”. In those circumstances, the delegate informed the appellant that the statement of claims would be disregarded and that the claims he presented in his interview would be considered instead. Having established that baseline, the delegate gave no weight to discrepancies and admissions between the statement of claims and the “narrative” given by the appellant at his interview.

59    As the Minister points out, at his interview the appellant did not:

(a)    provide the delegate with separate evidence from H in the form of a statement or other document setting out H’s claims;

(b)    seek to have H attend as a witness in the appellant’s interview;

(c)    provide a summary of H’s oral evidence;

(d)    seek further time to provide a written summary of H’s evidence;

(e)    provide copies of the documents relied on by H; or

(f)    ask for evidence from H to be treated as evidence in the appellant’s “case”.

60    In short, the appellant did not make the two claims or provide information in respect of them.

61    At the end of the interview, the appellant was given time to consider whether he had “covered everything that he wanted to talk about”. At the resumption of his interview, the appellant told the delegate that “there was nothing else he wished to say”. The appellant’s migration agent then made oral submissions. The migration agent “did not raise any concerns with the delegate’s approach”. He did not indicate that there was information provided by H that should be considered.

62    The appellant and his agent were then advised that any information received by the delegate before she made her decision, would be considered. This was clearly an invitation to the appellant to provide, if he wished, any additional information to support his application. In the three months before the delegate made her decision, the appellant did not provide additional information or make further comments.

63    The definition of “new information” in s 473DC(1) of the Act, and the IAA’s consideration of relevance under para (b) thereof, directs attention to the decision made under s 65 of the Act in respect of the referred applicant. In the context of an application for a protection visa, such a decision is one reached having regard to the referred applicant’s claims for protection, not some other person’s claims for protection.

64    On the facts of this case, it is impossible to see how the two claims, which were part of H’s application for a protection visa, can be considered to be information that, under s 473DC(1)(a) of the Act, was “before the Minister” for the purposes of the delegate making her separate decision in respect of the appellant’s own application for a protection visa. As I have said, these were not claims which the appellant made to support his application. There was no reason for the delegate to think otherwise. The two claims were certainly not comprised in material provided by the appellant to the delegate before her decision was made: s 473CB(1)(b).

65    It was the appellant’s responsibility to specify the particulars of his claims to be a person in respect of whom Australia has protection obligations, and to provide sufficient evidence to establish those claims: s 5AAA of the Act. It was not for the delegate to speculate (which she did not) on the reasons why the appellant framed and advanced his own application for a protection visa in the way he did, or to assume (which she did not) that he wished to support his claims for protection by claims which H advanced but which the appellant, himself, did not advance in his own interests. The delegate assessed the appellant’s own claims on their own merits. It was only at the time of making the IAA submission that the appellant, through his migration agent, raised the two claims, even though he had been given every opportunity to provide further information and to make further comments, prior to the delegate making her decision.

66    The appellant’s submission that there was no bar to the delegate using H’s evidence, provided s 57 of the Act was complied with, is difficult to follow. Section 57 addresses the position where the Minister has information which he or she considers would be the reason, or part of the reason, for refusing to grant a visa, or for deciding that the visa applicant is an excluded fast track review applicant. The relevance of the appellant’s submission to the circumstances of the present appeal—particularly as to why H’s evidence would be the reason, or part of the reason, for refusing the appellant’s protection visa application—is not at all clear. In any event, as the Minister submitted, the argument that there was no bar to the delegate using H’s evidence misses the point. Pursuing this argument sheds no light on whether or not, in the present case, the two claims were “before the Minister” for the purposes of s 473DC(1)(a) of the Act when the delegate made her decision in respect of the appellant’s application. The fact that, in other cases, a delegate or the IAA has used information across separate visa applications involving members of the same family, also misses the point, for the same reason.

67    The appellant’s submission recorded at [48] above is also difficult to follow. It appears to proceed on the basis that the two claims constituted information that was “before the Minister” when the delegate made her decision in respect of the appellant’s visa application. However, that is not the case, for the reasons I have given. It also seems to proceed on the basis that there was a proper occasion for the delegate to refer to H’s evidence in respect of the two claims. But, in reality, there was no proper occasion for the delegate to refer to H’s evidence in respect of these claims, and, in her decision in respect of the appellant’s application, the delegate did not make reference to H’s evidence in that regard. The appellant’s submission simply raises a different case for consideration.

68    For these reasons alone, Grounds 2 and 3 of the appeal fail. It is not necessary for me to consider the subsidiary question raised by the appellant concerning whether, as a matter of form, the two claims, expressed through the medium of the IAA submission, constituted the same information which, the appellant contends, was “before the Minister”: [49] above.

Ground 4

69    Ground 4 is:

The primary Judge erred in finding that even if the Authority had erred by excluding the adviser’s submission concerning what [H] had said at his interview with the delegate this error was not sufficiently material to be a jurisdictional error.

70    In light of my conclusion on Grounds 2 and 3, this ground of appeal does not fall for determination. I will, however, briefly consider it.

71    Jurisdictional error consists of a material breach of an express or implied condition of the valid exercise of a decision-making power conferred by statute: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 at [31]. In MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 390 ALR 590 (MZAPC), the majority explained at [29] – [31]:

[29]     The constitutionally entrenched jurisdiction of a court to engage in judicial review of the decision, where that jurisdiction is regularly invoked, is no more and no less than to ensure that the decision-maker stays within the limits of the decision-making authority conferred by the statute through declaration and enforcement of the law that sets those limits. To say that the decision is affected by jurisdictional error is to say no more and no less than that the decision-maker exceeded the limits of the decision-making authority conferred by the statute in making the decision. The decision for that reason lacks statutory force. Because the decision lacks statutory force, the decision is invalid without need for any court to have determined that the decision is invalid.

[30]     The statutory limits of the decision-making authority conferred by a statute are determined as an exercise in statutory interpretation informed by evolving common law principles of statutory interpretation. Non-compliance with an express or implied statutory condition of a conferral of statutory decision-making authority can, but need not, result in a decision that exceeds the limits of the decision-making authority conferred by statute. Whether, and if so in what circumstances, non-compliance results in a decision that exceeds the limits of the decision-making authority conferred by the statute is itself a question of statutory interpretation.

[31]    Having expounded the contemporary understanding of jurisdictional error in substantially those terms, Kiefel CJ, Gageler and Keane JJ, who constituted the plurality in Hossain, proceeded to enunciate a common law principle of statutory interpretation. The principle enunciated is that a statute conferring decision-making authority is not ordinarily to be interpreted as denying legal force to every decision made in breach of a condition which the statute expressly or impliedly requires to be observed in the course of a decision-making process. The statute is instead “ordinarily to be interpreted as incorporating a threshold of materiality in the event of non-compliance”.

(Footnotes omitted).

72    In MZAPC, the majority (at [39]) also confirmed—as held (by majority) in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at [46]—that the question of materiality of the breach is an ordinary question of fact in respect of which the applicant for judicial review bears the onus:

[39]    Bearing the overall onus of proving jurisdictional error, the plaintiff in an application for judicial review must bear the onus of proving on the balance of probabilities all the historical facts necessary to sustain the requisite reasonable conjecture. The burden of the plaintiff is not to prove on the balance of probabilities that a different decision would have been made had there been compliance with the condition that was breached. But the burden of the plaintiff is to prove on the balance of probabilities the historical facts necessary to enable the court to be satisfied of the realistic possibility that a different decision could have been made had there been compliance with that condition.

(Footnotes omitted).

73    This determination involves a counterfactual analysis: CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; 268 CLR 76 at [47]. The enquiry is backward looking and concerns what the decision-maker did in the particular case: BDY18 v Minister for Immigration and Border Protection [2020] FCAFC 24; 273 FCR 170 at [88].

74    In the present case, in relation to the new information that people had come to the appellant’s and H’s father’s house looking for H, the IAA noted that the appellant had not indicated what, if any, parts of this information were said to relate to his own claims, other than the claim that H had been of adverse interest to certain persons in 2013. However, the fact that H had been of adverse interest in 2013 was a matter which the IAA accepted, in any event, without the need to have regard to H’s interview with the delegate: see [9] of the Decision Record.

75    Even accepting that H had been of adverse interest, the IAA also noted that Nouri Al-Maliki was no longer the Iraqi Prime Minister and H no longer worked for him. Therefore, the IAA concluded that, in that respect, H no longer had a profile that had attracted the adverse interest in him in 2013.

76    Further, the IAA made the following findings at [27] – [28] of the Decision Record:

27.    The applicant has not claimed that any militia, organisation or person has approached, threatened, harassed or harmed his father or younger brothers (who all remain in the family home in AD) for any reason associated with the applicant or H since 2013. The applicant also told the delegate that his own wife and daughter returned to AD to live with the applicant’s family after the applicant departed Iraq, and both remain there today. He has not claimed that his wife or daughter have been approached, or been asked about him, or that they fear any harm from any militia or person because of the applicant’s profile or past history. Further, the applicant said that he sold his share of his business to his business partner, who continued to operate the business. The applicant has not claimed that any group or person has approached the business partner to ask about the applicant or H.

28.    On the evidence before me, even accepting that the applicant was of interest to the group for the purpose of influencing H, I am not satisfied that there is any more than a remote chance that the applicant remains of adverse interest to any militia group for any reason, or that he will come to the adverse attention of any such group should he return to Iraq. I am not satisfied that he faces more than a remote chance of harm because of his, or his brother H’s, past profiles or histories.

77    Had it been necessary for me to decide Ground 4, I would not have been persuaded that the primary judge erred in his conclusion on the question of materiality. In short, had the IAA considered the new information constituted by the two claims, I am not persuaded that, realistically, that information, if accepted as true, could have resulted in a different decision, having regard to the other findings made by the IAA.

Ground 5

78    Ground 5 is:

The primary judge should have found that the Secretary failed to form an opinion under s 473CB(1)(c), reasonably and rationally, as to what records were relevant to the review to be conducted by the Authority, because the Secretary failed to provide the digital recording of [H’s] SHEV interview to the Authority

79    Section 473CB(1) of the Act requires the Secretary to give to the IAA certain “review material”. In ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; 383 ALR 407 at [6] – [8], the plurality discussed the nature of the “review material” and the purpose for its provision to the IAA:

[6]      “Review material”, which the Secretary is obliged in every case to provide to the Authority and which the Authority is obliged in every case to consider in exercising that jurisdiction, comprises material within three categories. The first is a statement concerning the referred decision setting out the findings of fact made by the delegate, referring to the evidence on which those findings were based and giving reasons for the decision. The second is material provided by the referred applicant to the Minister before the delegate made the referred decision. The third is other material in the Secretary’s possession or control considered by the Secretary to be “relevant” to the review in the sense that it is “capable directly or indirectly of rationally affecting assessment of the probability of the existence of some fact about which the Authority might be required to make a finding”.

[7]    Conformably with the nature of the jurisdiction to be exercised by the Authority in the conduct of the review, the obligation of the Authority to “consider” the review material provided to it by the Secretary is to “examine the review material … to form and act on its own assessment of the relevance of that material to the review of the referred decision”.

[8]    The purpose of obliging the Secretary to provide the review material to the Authority and of obliging the Authority to consider the review material provided to it by the Secretary is evidently to ensure that the Authority, in conducting its de novo consideration of the merits of the referred decision, has and examines for itself the same information that was before the Minister and that was therefore available to be taken into account by the delegate when making the referred decision.

(Footnotes omitted).

80    The appellant submits that the information in H’s interview with the delegate (in the form of a recording) was “before the Minister” when the delegate made her decision with respect to the appellant’s visa application. He submits that this information was “manifestly relevant” to his own claims. He submits that, for this reason, it was necessary for the Secretary to provide the recording to the IAA under s 473CB(1) of the Act so that the IAA, when conducting its review, could be, as far as possible, in the same position as the delegate. He submits that there was an interdependence between his claims and H’s claims and that, unless it knew of the evidence that H had given to the delegate, the IAA was confronted with an “information gap”. He submits that if the Secretary were acting reasonably, the recording of H’s interview would have been provided to the IAA.

81    It is not in dispute that, in carrying out the duty under s 473CB(1), the Secretary must act reasonably and on a correct understanding of the law: CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; 375 ALR 47 at [6] Kiefel CJ and Gageler J (in dissent on the outcome, but not in this particular respect); Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AWT19 [2021] FCAFC 58 at [59]. But, obviously, Ground 5 in this appeal is founded on an acceptance of Grounds 2 and 3. It is for this reason that Ground 5 cannot succeed.

82    The recording of H’s interview was not review material falling within s 473CB(1)(a) or s 473CB(1)(b) of the Act. Nor could it be material falling within s 473CB(1)(c). In this latter regard, I accept the Minister’s submission that where relevance is framed by reference to what was “before the Minister”, it cannot be legally unreasonable for the Secretary to fail to give to the IAA review material that was not “before the Minister”. The IAA was not confronted with an “information gap”. There was no interdependence between the appellant’s claims and H’s claims.

Disposition

83    The appellant has failed to make out his grounds of appeal. The appeal must be dismissed. The appellant should pay the Minister’s costs.

Associate:

Dated:    10 September 2021