Federal Court of Australia

DQN19 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1162

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

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

REASONS FOR JUDGMENT

BESANKO J:

Introduction

1    This is an appeal from an order made by the Federal Circuit Court and Family Court of Australia (Division 2) (the Federal Circuit Court) on 16 September 2021. On that date, the Federal Circuit Court made an order that the appellants’ Further Amended Application for Review filed on 7 April 2021 be dismissed (DQN19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 43). There are four grounds of appeal against that order.

2    The first appellant is a citizen of Iran and he arrived in Australia on 26 July 2013 as an unauthorised maritime arrival. The second appellant is the wife of the first appellant, the third appellant is the son of the first and second appellants and the fourth appellant is their daughter.

3    On 19 September 2016, the first appellant was invited to make an application for a Temporary Protection (subclass 785) visa or a Safe Haven Enterprise (subclass 790) visa (SHEV) and, on 23 March 2017, the appellants made an application for a SHEV.

4    On 29 July 2019, a delegate of the Minister refused to grant visas to the appellants. The matter was referred to the Immigration Assessment Authority (the IAA) for a review of the decision of the delegate and, on 15 August 2019, a representative of the appellants provided to the IAA what the appellants claimed was new information within s 473DD of the Migration Act 1958 (Cth) (the Act). That is significant in light of the first ground of appeal. On 9 September 2019, the IAA affirmed the decision of the delegate. On 23 September 2019, the appellants filed an Originating application for review of the decision of the IAA. On 16 September 2021, the Federal Circuit Court dismissed the appellants’ Further Amended Application for Review filed on 7 April 2021.

The Decision of the IAA

5    The IAA noted that only the first appellant had raised protection claims and that the other three appellants indicated that they did not have their own claims for protection and had not claimed to fear harm in Iran. They were not interviewed by the delegate and the delegate only considered the first appellant’s risk of harm in Iran. The other appellants and their lawyer did not express any concern about the delegate’s approach in their submissions to the IAA and this was despite the fact that all four appellants claimed to have adopted Christianity. The IAA said that despite the fact that only the first appellant presented protection claims, the factual assertions and documentary evidence before the IAA indicated that some of the potential “risks fears” by the first appellant would also arise in relation to the second, third and fourth appellants. In those circumstances, the IAA said that in its assessment, it considered the risk of future harm to all appellants in relation to claims that arose on the material before it, including because all claimed to have engaged in Christian activities and all had requested asylum in Australia.

6    The first appellant made a number of claims in his application for a SHEV based on his conversion to Christianity. Those claims were summarised by the IAA as follows:

•    The first applicant became friends with a Christian man, ‘A’, while undertaking his military service between 1982 and 1984. The two discussed religion and this led to the applicant developing an interest in Christianity. The first applicant was then posted to Kurdistan and was not able to communicate with A for a period.

•    After completing military service in 1984 he found A’s house in Tehran and visited him on occasion. Through A he was introduced to some private domestic churches in Tehran. In those churches, he met more Christian people and learned more about Christianity.

•    A introduced him some people in Shiraz so he could go to the domestic churches in his home city. The first applicant’s wife was the only person who knew about his religious conversion and she also eagerly accepted this religion. They both began attending these domestic churches.

•    One day the first applicant was not able to attend church due to illness. On that day the church group was detected by members of the Ettela’at. The first applicant was sure the Ettela’at knew his name as it was listed in the members of the domestic church and so they could easily find him. He believed the arrested church attendees would be tortured and sentenced to death.

•    He decided to come to Australia to for fear of being persecuted, arrested or even executed. He immediately left Iran with his family and fled to Australia

•    Since coming to Australia he has followed his desired religion. He and his family became members of a Christian community.

•    Conversion from Islam to Christianity attracts the death penalty in Iran. The first applicant fears the authorities will kill him if he returns.

7    The first appellant was interviewed by the delegate in July 2019 and he provided further information about his claims. The IAA summarised that further information as follows:

•    He never accepted Islam. Since becoming interested in Christianity he did not practice Islam.

•    In 1991 he was fired from his job as a driver for an oil company because he did not attend prayer. He was replaced with a strict Muslim.

•    He attended home church around 10 times in Iran. The day after the home church sessions in Iran the applicant would receive a coded phone call to indicate the session had proceeded without issue. If he did not receive a call the following day it meant something was wrong.

•    After the session he missed due to illness he did not receive a call. He went to see the home church organiser, ‘Y’. Y explain that he had not heard anything from the group either but that two persons who ran the group had disappeared so he knew something was wrong. The applicant fears the two were arrested, would have been tortured and would have told the authorities the identities of the members of their church group. So he decided to leave the country.

•    He was baptised 6 years ago in Australia. He considers he became a Christian when he was baptised, but he considered himself Christian at heart while in Iran.

•    His wife only became interested in Christianity in Australia.

8    The IAA said that it had regard to the material given by the Secretary under s 473CB of the Act. In addition, submissions were provided to the IAA by the appellants’ registered migration agent in a letter to the IAA dated 15 August 2019 (the agent’s letter). Those submissions contained a number of claims.

9    One of the claims made in the agent’s letter was that the previous migration agent’s unprofessional conduct may have contributed to the refusal of the application and may have prevented full information reaching the delegate. The IAA noted that there was no explanation as to how the former migration agent’s conduct so inhibited the appellants. The submissions did not set out what information the appellants were precluded from providing or clearly identify whether they have now provided that information. Furthermore, they did not explain how the former migration agent’s conduct prevented them from providing it. The IAA noted that it was evident from the review material that the former migration agent withdrew his representation in June 2018 which was more than a year prior to the delegate’s decision.

10    The agent’s letter also provided what was claimed to be new information in relation to certain events involving the third appellant. That aspect of the claims is not the subject of complaint before this Court and it is sufficient to note that the IAA considered that the requirements in s 473DD of the Act for the consideration of new information by the IAA were not met in relation to that information.

11    The IAA noted that the agent’s letter dated 15 August 2019 attached three letters. One of those letters is relevant in terms of the grounds of appeal and it is a letter from a Dr Saman Setayesh dated 22 March 2019. The doctor’s letter is in the following terms:

To whom it may concern,

This is to certify that [the first appellant] who was unfortunate few years ago, when involved in a serious MVA, developed a spinal injury, which progressively got worse.

He underwent couple of surgery, the most recent few weeks ago which had to do it urgently.

He has a spinal lesion which affected weakness on left side of body, causing him to be dependent on wheelchair.

Also, as fro any of the injury like this, he has developed spasticity of left arm, which he has had many medications and also Botox injection. Unfortunatley it is not working much for him and getting rehabilitation to preserve some of his functions.

His diagnosis is consistent with Brown-Sequard spinal injury.

He is unable to work due to the extend of his medical conditions.

The relevant documents, reflecting recent correspondences with specialist, are attached for your reference.

should you have any further query, please contact us.

(Original formatting retained.)

12    The IAA said that, to the extent that the submissions in the agent’s letter addressed the findings of the delegate or contained legal argument, it did not convey new information and that it had had regard to it. With respect to the doctor’s letter, the IAA decided that the requirements in s 473DD for it to consider that as new information were not met and it did not consider the doctor’s letter. This aspect of the IAA’s decision is the subject of Ground 1 of the Notice of appeal.

13    Section 473DC of the Act gives the IAA the power to get any documents or information (new information) that were not before the Minister when the Minister made the decision under s 65 of the Act and that the IAA considers may be relevant. The appellants claim that the IAA acted in a manner which was legally unreasonable in not utilising the power in s 473DC of the Act to obtain information from the agent and the doctor concerning the first appellant’s medical condition and the extent to which it may have affected the first appellant’s presentation and performance at the interview by the delegate. These complaints are the subject of Grounds 3 and 4 of the Notice of appeal.

14    The IAA considered the first appellant’s evidence with respect to his Christian activities and beliefs when he was in Iran and then after his arrival in Australia.

15    The IAA described the first appellant’s narrative about his exposure to the Christian faith in Iran as shifting and vague and as generally lacking credibility. The IAA had a number of concerns. I will identify the subject matter of those concerns. It is not necessary to set out the details of each concern.

16    The subject matter of the IAA’s concerns were as follows:

(1)    The first appellant’s account of his wife’s conversion to Christianity;

(2)    The first appellant’s account of a raid on a church session;

(3)    The first appellant’s account of being tortured and harassed by the authorities in Iran;

(4)    Earlier interviews by officers in Australia during which the first appellant described himself as Shia Muslim and made no reference to Christianity;

(5)    The fact that the family members of Christian converts in Iran are ordinarily harassed by authorities in Iran and that had not occurred in the first appellant’s case.

17    The IAA’s conclusion concerning the first appellant’s claimed religious activities in Iran was as follows:

20.    … On the whole his information regarding his Christian activities in Iran was unpersuasive and not indicative that he was recounting lived experiences. I do not accept the first applicant became interested in Christianity in Iran, that he ever attended any home churches or any Christian events while in Iran. Nor do I accept the second applicant ever attended any church or engaged in any Christian events in Iran. I consider these claims have been fabricated in their entirety.

18    With respect to the first appellant’s claimed Christian activities following his arrival in Australia, the IAA said that it was not satisfied that the first appellant “evidenced” a sincere and genuine commitment to the Christian faith. Again, as with the first appellant’s evidence about his activities in Iran, the IAA said that it had a number of concerns about the first appellant’s evidence about his Christian activities and beliefs in Australia. Again, I will identify the subject matter of those concerns and it is not necessary to set out the details of each concern.

19    The subject matter of the IAA’s concerns were as follows:

(1)    The first appellant’s scant and limited knowledge of the first church he attended and the church at which he was baptised;

(2)    The first appellant’s uncertainty about the date upon which he was baptised;

(3)    The first appellant lied about matters concerning the topic of whether he was to be rebaptised in the church he was currently attending;

(4)    The first appellant did not seek out a church to join, but rather he was invited to do so;

(5)    The first appellant provided very little detail about his Christian activities in Australia;

(6)    An inconsistency between the first appellant and current church leaders about the former’s involvement in religious activities other than attendance at Sunday church services.

20    The IAA did note some matters in favour of the first appellant’s claims being that he had some involvement in the Edge Church and that the minister of that church held the view that the first appellant and his wife had made a genuine and personal commitment to the Christian faith. However, those matters did not overcome the IAA’s concerns. The IAA expressed its conclusions as follows:

30.    Weighing the information before me I am simply not satisfied that the first applicant is a sincere adherent to the Christian faith or that his religious activities in Australia were in furtherance of a sincere belief. He has demonstrated a profound lack of knowledge in respect of fundamental details, such as not knowing what a Mormon was, that he was baptised a Mormon, or that he attended a Mormon church for around a year. He has also been imprecise with key details of his own religious narrative. Despite suggesting he became Christian when he was baptised, he has on occasion provided significantly different dates for his baptism and has radically shifted his narrative in respect of whether he needs to be re-baptised at the Edge Church. He was able to recite certain bible passages at the interview with the delegate, but struggled to convey why those passages held particular meaning to him. His perfunctory responses when discussing Christianity, and his delay in seeking out a church Australia [sic] and only starting to attend church after being invited did not support his assertion to have developed a keen interest in Christianity more than 30 years ago or his claim to have eagerly followed his desired religion in Australia. I accept that the applicant attends church in Australia and has undergone a baptism. However I do not accept that he is a sincere follower of the Christian faith, and I consider that his religious activities in Australia were motivated mostly by a desire to obtain a favourable migration outcome.

21    The appellants claim that the IAA failed to give realistic consideration to relevant evidence of an integer of the first appellant’s claim and, in particular, it failed to make any reference in its reasons to the extensive explanation provided by the first appellant to the delegate regarding the differences between Christianity and Islam. This complaint is the subject of Ground 2 of the Notice of appeal.

22    I turn to the grounds of appeal. I will address the primary judge’s reasons in the course of dealing with the grounds of appeal.

The Grounds of Appeal

Ground 1

23    Ground 1 is in the following terms:

1.    The learned Primary Judge erred in not holding that the Second Respondent (“the IAA”) had committed jurisdictional error in that the IAA did not properly reach a state of satisfaction when exercising its powers under s473DD(a) and (b)(ii) of the Migration Act 1958, in that it did not properly consider, or failed to give proper, genuine and realistic consideration to whether there existed exceptional circumstances to justify considering new information provided by the Appellants’ representative, nor did it assess whether the new information was credible personal information not previously known to the Minister which, had it been know [sic], may have affected the Appellants’ claim.

Particulars

(A)    The letter dated 15 August 2019 from the Appellants’ representative, Kamran Ghambari (“the representative’s letter”), was rejected from consideration in so far as it went to the First Appellant’s medical condition; and

(B)    The letter from Dr Saman Setayesh of 22 March 2019 (“the doctor’s letter”) was rejected from consideration by the IAA.

24    The doctor’s letter is set out above (at [11]). The relevant passage in the agent’s letter (referred to in the ground of appeal as the representative’s letter) was as follows:

There are, we submit some very evident compassionate circumstances which the Delegate failed to discuss or allow for. Attached to this appeal are various letters. One of these is from Dr Saman Setayesh, referring to the injuries suffered by [the first appellant] in a very serious Motor Vehicle Accident (MVA). In essence, [the first appellant] suffers from Brown-Sequard Spinal Injury which is associated with a lesion on the spinal cord, and which causes weakness or paralysis on one side of the body – in [the first appellant’s] case, his left side is severely affected, and he is confined to a wheel-chair.

Not only does the condition impose limitations on his mobility and activities, but he requires strong pain-killers which are associated with side-effects such as drowsiness and loss of concentration. Consequently, there are realistic matters which impact his ability to express himself clearly and accurately during interview. Added to this are significant language barriers which impact not just daily living but his ability to understand the finer points of religious teaching. and also limit his ability to express his ideas and feelings clearly.

25    Section 473DD of the Act is in the following terms:

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.

26    In rejecting the doctor’s letter as new information because it did not meet the requirements of s 473DD, the IAA first noted that the doctor’s letter was dated approximately four months before the delegate’s decision. The IAA said that no effort had been made to explain why this letter could not have been provided prior to the delegate’s decision or how it may have affected consideration of the appellants’ claim or whether any exceptional circumstances exist that might justify the IAA considering it. These three references are references (in order) to the respective requirements in s 473DD(b)(i), s 473DD(b)(ii) and s 473DD(a). The IAA said that the letter is dated well after the former migration agent stopped acting for the appellants and, therefore, it was not satisfied that any malfeasance on his part contributed to the delayed provision. The IAA noted that the agent’s letter contained an assertion that due to his spinal condition, the first appellant required strong pain killers which had side effects such as drowsiness and loss of concentration and that this impacted on his ability to express himself clearly and accurately during the interview. The IAA correctly noted that it appeared that the letter was being provided to account for deficiencies in the first appellant’s evidence at interview. The IAA noted that the doctor’s letter did not mention any such pain medication and there was no medical evidence before it regarding any prescription. The first appellant did not indicate that he had any difficulties during the interview, including when he was directly asked about his health by the delegate. The first appellant’s representative had not otherwise commented on the letter and there had been no effort to identify or correct any particular error or omissions which were allegedly attributable to the medication.

27    The IAA said that as it was satisfied that the first appellant had a spinal condition and was reliant on a wheelchair based on information which was before the delegate, the doctor’s letter was of no material relevance to its assessment. There are no exceptional circumstances that justified the IAA’s consideration of the letter and nor had the first appellant satisfied the IAA that either limb of s 473DD(b) was met in respect of the letter.

28    There is no complaint by the appellants about the IAA’s reasoning with respect to the requirement in s 473DD(b)(i). The appellants’ complaint centres on the requirement in s 473DD(b)(ii). The IAA did not expressly address whether the information was credible personal information which was not previously known. It appears to have proceeded on the basis that it could assume that to be the case, or at least that it could deal with the requirement in s 473DD(b)(ii) without considering that aspect of the requirement. The IAA reached the view that the doctor’s letter could not have affected the consideration of the first appellant’s claim.

29    With respect, White J provided a comprehensive summary of the relevant principles regarding the operation and application of s 473DD in BVZ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1803. Neither party challenged his Honour’s summary of the relevant principles. His Honour said (at [13]–[17]):

13    A number of matters of approach concerning the application of s 473DD have now been settled in the authorities. They include AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; (2020) 94 ALJR 1007 which was delivered while the judgment on this appeal was reserved. The parties provided supplementary submissions concerning the significance of the decision in AUS17 for this appeal.

14    The settled matters of approach include:

(a)    section 473DD imposes a duty on the IAA to assess new information that it has “got” against the specified criteria and to take the new information into account if satisfied that those criteria are met: AUS17 at [6];

(b)    the IAA cannot consider any new information at all unless satisfied that there are exceptional circumstances justifying it doing so and, if the visa applicant is the source of the information, is satisfied as to one or other of the elements in subpara (b): BDY18 v Minister for Immigration and Border Protection [2020] FCAFC 24; (2020) 273 FCR 170 at [23];

(c)    the term “exceptional circumstances” in subpara (a) is to be given a broad meaning and requires that consideration be given to all the relevant circumstances: Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176, (2017) 257 FCR 111 at [104]; Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110, (2018) 264 FCR 249 at [51]. What is required is a contextual evaluation having regard to all the circumstances of the case: BDY18 at [25];

(d)    the matters which will amount to “exceptional circumstances” justifying consideration of the new information for the purposes of subpara (a) are not capable of exhaustive statement. They need not be unique, unprecedented or very rare but cannot be circumstances which are regularly, routinely or normally encountered: Plaintiff M174/2106 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217 at [30];

(e)    although the requirements of subparas (a) and (b) are cumulative, they overlap. If the new information is found to satisfy either or both the criteria in subpara (b), the IAA must take that circumstance into account when considering whether the subpara (a) criterion is satisfied: AUS17 at [11]-[12]. That is to say, the IAA’s satisfaction of either or both of the limbs in subpara (b) may inform its satisfaction under subpara (a) that there are exceptional circumstances justifying consideration of the new information: BBS16 at [102]: AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111; (2018) 162 ALD 442 at [14]. By way of example, the IAA’s satisfaction that the new information could not have been provided to the Minister at the time of the s 65 decision may contribute to its satisfaction that there are exceptional circumstances justifying consideration of the new information: CQW17 at [48]; CHF16 v Minister for Immigration and Border Protection [2017] FCAFC 192, (2017) 257 FCR 148 at [17]-[18], DYS16 v Minister for Immigration and Border Protection [2018] FCAFC 33, (2018) 260 FCR 260 at [31]-[33]; CAQ17 v Minister for Immigration and Border Protection [2019] FCAFC 203 at [91];

(f)    the exceptional circumstances may comprise a single factor or be found in a combination of factors considered collectively: AQU17 at [13]. This necessitates consideration of all relevant circumstances because, even though no one factor may be exceptional, the circumstances in combination may be such as reasonably to be regarded as exceptional: AQU17 at [7]-[8];

(g)    subparagraphs (b)(i) and (ii) involve different considerations. The former requires a factual enquiry as to whether or not the new information could have been presented to the Minister, whereas the later requires an evaluation of the significance of the new information in the context of the referred applicant’s claims more generally: BBS16 at [105];

(h)    the “personal” information to which subpara (b)(ii) refers is information about the referred applicant which was not previously known to the Minister, even if known to the referred applicant: Plaintiff M174 at [33];

(i)    an error in the formation of the state of satisfaction as to one precondition may infect the other: BDY18 at [26]; and

(j)    it is the satisfaction of the IAA which is required by both subparas (a) and (b). Accordingly, it is for the IAA, and not the Court on review, to form the required state of satisfaction: BDY18 at [28].

15    In relation to s 473DD(b)(ii), the plurality in Plaintiff M174 (Gageler, Keane and Nettle JJ) said that all that the IAA needs to be satisfied about in order that this precondition be met is that: “(1) the information is credible information about an identified individual, or an individual who is reasonably identifiable; (2) the information was not previously known by either the Minister or the referred applicant; and (3) had the information been known by either the Minister or the referred applicant, the information may have affected the consideration of the referred applicant’s claims”, at [34].

16    The requirement that the personal information to which subpara (b)(ii) refers be “credible” has been considered in a number of the authorities. In CSR16 v Minister for Immigration and Border Protection [2018] FCA 474, Bromberg J said:

[41]    In my view all that the “credible” element of the s 473DD(b)(ii) criteria requires is the Authority’s satisfaction that the “new information” is information which is open to be or capable of being accepted by the Authority as truthful (or accurate, or genuine). It is only at the deliberative stage of its review that the Authority will be required to determine whether or not the “new information” is true. The s 473DD(b)(ii) criteria is concerned with an earlier or anterior stage of the review directed at whether “new information” should be received by the Authority so that it may be considered at the deliberative stage.

[42]    The criteria is a filtering mechanism designed to separate information worthy of consideration at the deliberative stage from that which is not. In that context, the word “credible” is used in relation to information, not in the sense that the information is believed, but in the sense that the information is capable of being believed. It is only information that the Authority is satisfied is “evidently not credible” … that fails to meet the credibility requirement imposed by the s 473DD(b)(ii) criteria.

(Citation omitted)

17    This understanding of the requirement that the personal information be credible appears to have been endorsed by the Full Court in Minister for Immigration and Border Protection v CLV16 [2018] FCAFC 80; (2018) 260 FCR 482 at [17]. As the reasons of Mortimer J in ALJ18 v Minister for Home Affairs [2020] FCA 491 at [24]-[25] indicate, the Minister has in other appeals to this Court challenged the correctness of CSR16. However, in this case, no submission was made by the Minister to the effect that the approach in CSR16 set out above was wrong and should not be followed. During the period in which this judgment was reserved, a majority in a Full Court (Mortimer and Jackson JJ) has held that CSR16 was correctly decided: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020] FCAFC 159 at [62].

30    I will refer to this case as BVD16 (No 2) to distinguish it from an earlier decision by the same judge (BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958; (2017) 254 FCR 221 at [33]–[37]).

31    The IAA did not reject the doctor’s letter because it did not directly serve to support his claim to be a genuine Christian. It accepted, it seems, that evidence explaining the first appellant’s deficiencies at the interview could be information that may have affected the first appellant’s claim. It decided as a matter of fact that the letter did not do that.

32    The delegate gave detailed reasons and, in the course of those reasons, she referred to information which the first appellant had provided during the course of his SHEV interview. For example, the delegate said the following:

I find the information provided by the applicant during his SHEV interview raises serious credibility concerns in respect to the applicant’s claim that he attended house churches in Iran, in making this finding I place weight on the following …

I find that the information provided during his SHEV interview displays significant differences to the claims that were described in his written statement. For these reasons, in addition to other credibility concerns that are listed below, I do not accept that the applicant attended a house church party prior to leaving Iran.

During his SHEV interview, the applicant was asked about the steps that he took to become a Christian …

While the applicant was able to relay two verses from the Bible during his SHEV interview, his responses when he was asked about the church where he was baptized indicate that he has not developed a knowledge or understanding of the Christian faith that would be expected from a person who has claimed to have attended regular bible studies over 12 months before being baptised, nor of a person who has claimed to believe in Christianity for 30 years …

I also place weight on the fact that the applicant stated during interview that he left the LDS church because of restrictions such as “no shopping on Saturday and Sundays” ...

33    The IAA considered whether the first appellant was a sincere adherent to the Christian faith and whether his religious activities in Australia were in furtherance of a sincere belief. It reached the conclusions summarised above (at [15]–[20]).

34    Although the IAA in its approach to s 473DD(b)(ii) did not follow the three steps identified in Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217 (see BVZ16 (No 2) at [15]), that is of no consequence in terms of jurisdictional error if there was no jurisdictional error in the IAA’s conclusion that the doctor’s letter was not information which may have affected the first appellant’s claims.

35    The appellants’ principal argument was that the IAA made the same error as the IAA made in BVZ16 (No 2) in that it had not determined the significance of the new information in the context of the appellants’ claims more generally (at [14(g)]) or it had compartmentalised the alleged new information without considering it as a whole (at [63]).

36    In my opinion, the IAA in this case did not make that error and the decision in BVZ16 (No 2) is distinguishable and does not assist the appellants.

37    In BVZ16 (No 2), the new information consisted of a statement by the appellant in which he claims to have been tortured some 15 to 20 days before he left Sri Lanka. The circumstances of the acts constituting torture were capable of causing embarrassment to the appellant. That was one item of new information. Other items of new information were a report from a clinical psychologist concerning her treatment of the appellant which also provided some support for his claims and a report of a general practitioner concerning her treatment of injuries which the appellant attributed to the claimed episode of torture. In that case, the IAA had considered separately the application of s 473DD to the appellant’s statement and to the two medical reports. The IAA was concerned about the long period which had elapsed before the appellant had made the new claim and the reasons which he had given for not making the claim earlier. The IAA did not consider the medical reports when evaluating the appellant’s explanation for his belated provision of the new information. The judge considered that that was significant because there was information in the medical reports that was capable of supporting the appellant’s explanation for his delay in advancing the new claim.

38    Justice White said the following (at [60]):

This expert medical evidence concerning the appellant’s mental health went directly to the explanation proffered by the appellant for the belated making of the new claim. Despite that, in determining whether the new information (being the appellant’s new claim) could be considered, the IAA did not have regard to it. The IAA thereby failed to have regard to the whole of the information when addressing the question of whether it could be “considered”. This was an error.

39    His Honour said that instead of having regard to the information, the IAA adopted “compartmentalised” reasoning and that meant that it considered both the appellant’s claim and the medical evidence independently of the other, and without considering the new information as a whole (at [63]). His Honour said the following as to the nature of the error made by the IAA (at [61]):

There are various ways in which the error which the appellant imputes to the IAA may be expressed. It may be a failure to consider the new information as a whole in the assessment of whether it constituted “credible personal information”. It may be a misunderstanding by the IAA of the way in which it was to discharge its function. However, the precise characterisation of the error is not important. The IAA was bound to consider whether the appellant’s new information was credible personal information: AUS17 at [6], [11]. It was required to undertake that consideration in accordance with law. This was an essential requirement for the discharge of the statutory obligation to review imposed on the IAA by s 473CC of the Act. In undertaking that review, the IAA had to consider whether the new information provided to it by the appellant could be considered: AUS17 at [6]-[7]. That issue had to be determined by regard to all “the information, evidence and arguments” relevant to it: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [44]. By failing to have regard to the medical reports when considering whether the appellant’s new information was credible personal information, the IAA failed to comply with this part of its statutory task. That was jurisdictional error.

40    As I have said, the appellants in this case submit that the IAA failed to consider the information as a whole. They made the following submission in writing:

There are fair inferences to be drawn from the doctor’s letter, particularly in the light of the letter from the representative, and the IAA has not fairly addressed this credible new personal information, and how it relates to and impacts on the First Appellant’s claim.

41    I do not accept that submission. The doctor’s letter makes no reference to pain killers and the effect that they may have on the first appellant’s presentation and performance during interview. The letter does refer to “many medications” in relation to spasticity of left arm, but no further details are provided. There were apparently documents attached to the doctor’s letter, but they are not included in the Appeal Book and no application was made by the appellants to put them before the Court. In my opinion, this case is quite different from the case of BVZ16 (No 2). The agent’s statement is effectively a submission. The doctor’s letter lends no support to the assertion that the first appellant was taking pain killers and that this affected his presentation and performance during the interview. As the IAA noted, the first appellant said nothing when the delegate inquired about his health and the first appellant’s lawyer (it is not clear to me whether this should be a reference to registered migration agent) did not comment on the doctor’s letter. Nor was any attempt made to identify those aspects of what the first appellant said at the interview which may have been affected by any medication he was taking.

42    The IAA was aware of the agent’s submission, but found that there was no evidence to support it. The IAA was entitled to take that approach. There was no evidence and it was open to the IAA to decline to draw any inference, particularly in the circumstances it identified.

43    The first appellant also complained about the IAA’s approach to the question of exceptional circumstances. In circumstances where the appellants have not satisfied either s 473DD(b)(i) or (ii) there was strictly no need for the IAA to consider para (a). In any event, I am not convinced that there has been any error in relation to the IAA’s consideration of exceptional circumstances. Although the IAA’s treatment of the paragraph was brief, the fact of the matter is that it is very difficult to see how there could be exceptional circumstances where the appellants are unable to satisfy the IAA that the new information was not and could not have been provided to the Minister before the Minister made the decision under the s 65 of the Act and that the appellants could not satisfy the IAA that the information may have affected the consideration of the appellants’ claims.

44    The primary judge’s reasons for rejecting this ground of judicial review were as follows (at [18]–[19]):

18    The Authority well appreciated that the first applicant had a spinal condition, and that he was reliant upon a wheel chair for mobilisation. The Authority accepted that the delegate also had that knowledge at the time of the protection visa interview. The letter from Dr Setayesh did not relevantly amplify upon such condition. In such circumstances, it was open for the Authority to find that there was no evidence before the Authority to suggest that had the delegate known of the contents of the letter, it was information which may have affected the consideration of the applicant’s claims, such that it could have resulted in the delegate making a different decision.

19    The Authority specifically found that neither limb of s. 473DD(b) was met in respect of the letter. In such circumstances, the Authority was entitled to find that there were no exceptional circumstances justifying its consideration of the contents of that letter …

45    For the reasons I have given, there is no error in the primary judge’s approach and this ground of appeal must be rejected.

Ground 2

46    Ground 2 is in the following terms:

2.    The learned Primary Judge erred in not holding that the IAA had committed jurisdictional error in that the IAA failed to give realistic consideration to relevant evidence of an integer of the First Appellant’s claim.

Particulars

The IAA found that the First Appellant “demonstrated a profound lack of knowledge in respect of fundamental details [of Christianity]”, but failed to make any reference in its reasons to the extensive explanation provided by the Appellant to the Delegate regarding the differences between Christianity and Islam.

47    The reference in the particulars of this ground to “the extensive explanation provided by the first appellant to the delegate regarding the differences between Christianity and Islam” is a reference to the following passages in the delegate’s decision:

During interview, the applicant provided information about his knowledge of Christianity, and the differences between Christianity and Islam. He provided the following information:

–    Christianity believes in forgiveness. Islam believes in murdering.

–    Islam believes that there is a punishment, you have to punish someone back.

–    Christianity talks about forgiveness.

–    Islam says sometimes you can lie. Christianity doesn’t believe in a lie.

–    In Islam, they promote Heaven as fairies and women, but in Christianity they believe you join the god with immortal life.

–    In Islam all the prophets do not rise from the dead. Jesus the prophet raised from the death.

–    In Islam they believe if you criticise the prophet you are weak and you are not human.

–    In Christianity, even if the prophet of the god says something, you should research and you should believe it, they give you a choice to choose.

–    Islam do not accept any other religion.

–    There is no equality in Islam, the Quran says if the woman doesn’t obey you can punish them. Christianity says you love your wife like your own body.

48    The appellants’ counsel referred to this information provided by the first appellant to the delegate and submitted that although it did not show “a profound theological depth”, it did show that there was a fundamental perception by the first appellant of different approaches to Heaven and of Christianity’s emphasis on forgiveness.

49    The appellants submit that the IAA’s failure to refer to this evidence was a jurisdictional error. The appellants put their argument on the basis that the IAA did not give proper, genuine or realistic consideration to the merits of the appellants’ case, or on the basis that the IAA failed to take into account relevant materials going to statutory performance. As developed, the argument rests on the proposition that the failure to take into account relevant material affected the IAA’s exercise of its statutory power (Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [84] per McHugh, Gummow and Hayne JJ).

50    With respect to the expression, “proper, genuine and realistic consideration”, in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 178 ALD 304, Kiefel CJ, Keane, Gordon and Steward JJ said the following (at [26]–[27]):

26    Labels like “active intellectual process” and “proper, genuine and realistic consideration” must be understood in their proper context. These formulas have the danger of creating “a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision-maker’s] decision can be scrutinised”. That is not the correct approach. As Mason J stated in Peko-Wallsend, “[t]he limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind”. The court does not substitute its decision for that of an administrative decision-maker.

27    None of the preceding analysis detracts from, or is inconsistent with, established principle that, for example, if review of a decision-maker’s reasons discloses that the decision-maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument; misunderstood the applicable law; or misunderstood the case being made by the former visa holder, that may give rise to jurisdictional error.

(Citations omitted.)

51    The inference to be drawn from a failure to mention a matter depends on the circumstances of the case. A failure to mention a matter does not necessarily mean that it has been overlooked. At the same time, to mention a matter in a cursory fashion may lead to a conclusion that effectively it has not been taken into account (Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and Arts [2011] FCAFC 59; (2011) 180 LGERA 99).

52    The appellants’ argument is not that there was a failure to take into account a relevant consideration which is mandatory (Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at [39]–[40] per Mason J (as his Honour then was)), but rather a failure to take into account what is said to be relevant material.

53    In the latter case, it is not always a jurisdictional error for an administrative tribunal to ignore relevant material. Whether it is or not depends on the cogency of the material and its importance in the assessment of the applicant’s claim (Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 (SZRKT) at [111]–[112], [119] and [122] per Robertson J).

54    The approach taken by Robertson J in SZRKT was followed by the Full Court of this Court in Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431. The Full Court said that the determining matters were the importance of the material to the exercise of the administrative body’s function and the seriousness of the error. The Full Court said (at [68]–[70]):

68    In SZJSS at [27]-[28] (a passage extracted by Robertson J in SZRKT at [96]) the joint judgment of the Court recognised as a proposition flowing from Yusuf that “jurisdictional error may include ignoring relevant material in a way that affects the exercise of a power”. In this passage, the Court is not dealing with relevant considerations in the Peko-Wallsend sense. Rather, as we consider Robertson J recognised in SZRKT (at [97]), it is describing an example of jurisdictional error where, in a given case, ignoring relevant material demonstrated a failure to perform the statutory task cast upon it by the combined provisions in the Migration Act because of the nature of the claims made and the nature of the material ignored.

69    In Kirk (at [60]-[70] and especially [69]), the High Court made express what has always been implicit in the use and application of the term “jurisdictional error”. Specifically, the Court explained that jurisdictional error is a term that takes its colour from its context and that, when the High Court in Craig v South Australia (1995) 184 CLR 163 explained why it was not prepared to follow Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 and why tribunals, unlike courts, could not “authoritatively” determine questions of law, there lay behind the use of the term “authoritatively” unexpressed premises about what is meant by jurisdictional error. The Court did not seek to define the concept in Kirk, but rather acknowledged the futility of doing so, since limits on power with respect to a particular decision can only be found in the relevant statute, in the context of a particular decision, particular reasons and particular evidence and material on which the decision is based.

70    With respect, we consider this is the conclusion reached by Robertson J in SZRKT, most directly expressed at [98], where his Honour states that the identification of jurisdictional error cannot “put out of account the actual course of decision-making by the Tribunal” and cannot proceed “by reference to categories or formulas”, observing that “there are many ways, actual or constructive, of failing to consider the claim”. His Honour develops this at [111] by disavowing any jurisdictional/non-jurisdictional distinction between claims and evidence and instead finding, correctly in our respectful opinion, that the “fundamental question must be the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error”. We agree with his Honour’s analysis.

55    The evidence said by the appellants to have been overlooked by the IAA fails to meet this test. It shows some very basic understanding of Christianity, but it is to be recalled that it is not said that the first appellant did not attend church in Australia or that he had not been baptised. The IAA found that those events had occurred. The answer to the appellants’ argument is that the IAA actually analysed the first appellant’s commitment to Christianity carefully and in detail (see [15]–[20] above) and reached conclusions which were open to it on the evidence.

56    A further argument advanced by the appellants was that the IAA fell into the trap of placing too much weight on the ability or inability of the first appellant to answer questions about religious doctrine or tenets. Certainly, it is necessary to be careful about that matter and the weight placed on it as Kenny J pointed out in Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108; (2010) 187 FCR 362 (SZLSP) (at [37]–[39]).

57    The IAA did not commit such an error in this case where it referred to the first appellant’s perfunctory knowledge of Christianity, but also a large number of other matters which it identified (see [15]–[20] above).

58    The primary judge found that the IAA actively intellectually engaged with the first appellant’s claims about his Christian faith. His Honour said that this was not a case where the IAA made findings about a lack of faith on the part of an applicant because such applicant had been unable to recite chapter and verse from the Bible. This was not a case where the IAA required the first appellant to meet a particular standard of Christian knowledge so as to demonstrate his adherence to the Christian faith. The primary judge adopted the passages from the reasons of Kenny J in SZLSP at [37]–[39].

59    For reasons I have given, there is no error in the primary judge’s approach and this ground of appeal must be rejected.

Grounds 3 and 4

60    It is convenient to deal with these grounds together. Both raise a consideration of s 473DC of the Act and its application to the facts of this case. The grounds are as follows:

3.    The learned Primary Judge erred in not holding that the IAA had committed jurisdictional error in that the IAA was legally unreasonable in failing to utilise its powers under s473DC of the Migration Act to obtain information relevant to the issue of whether consideration should have been given by the IAA to the representative’s letter and the doctor’s letter.

Particulars

The IAA asserted that it was satisfied as to the First Appellant’s spinal condition and need for a wheelchair (“the debilitating condition”) from information that was before the delegate. But the delegate made no reference in her decision to the First Appellant’s debilitating condition. The IAA needed to ask the First Appellant’s representative and doctor for information as to how the debilitating condition may have affected the First Appellant’s performance at interview by the delegate, rather than speculate on the matter.

4.    The learned Primary Judge erred in not holding that the IAA had committed jurisdictional error in that the IAA was legally unreasonable in failing to utilise its powers under s473DC of the Migration Act to obtain information from the First Appellant’s representative and doctor relevant to the issue of whether, assuming the IAA had determined to give consideration to the representative’s letter and the doctor’s letter, the debilitating condition may have affected the First Appellant’s performance at interview by the delegate, rather than speculate on the matter.

61    The distinction between the two grounds is that Ground 3 relates to getting information for the purposes of making a decision under s 473DD concerning the doctor’s letter and the agent’s letter, and Ground 4 relates to the next stage, the effect of the condition and medication on the first appellant’s presentation and performance at interview. Two further observations should be made. First, the grounds of appeal identify persons to whom a request for further information should be made as the agent and the doctor. In submissions, the appellants also identified the first appellant as a person to whom a request for further information should be made. Secondly, this is a case in which the new information was likely to involve, on the appellants’ case, a request for information from more than one source. The request may have been made of the first appellant as to the drugs he was taking and how he felt during the interview. The request may have been of the doctor as to the drugs the first appellant was taking and how they may have affected him during the interview.

62    With respect to Grounds 3 and 4, the essence of the appellants’ argument was that the IAA had left a question “hanging”. That question was as to how the first appellant’s presentation and performance at interview was affected by his medical condition and the drugs he takes for it. The IAA should have utilised its power in s 473DC to get new information.

63    The appellants sought to rely on my decision in CPP17 v Minister for Immigration, Citizenship Migrant Services and Multicultural Affairs (No 2) [2021] FCA 199 in which I upheld a claim of legal unreasonableness in connection with a failure to exercise the power in s 473DC of the Act. That case was quite different from the present. The appellant in that case had been the subject of domestic violence and the question was whether there was an ongoing risk of that occurring. The IAA made a finding that there was no indication that the threat of violence was ongoing. The finding was based on what I referred to (at [93]) as slender circumstantial evidence. Those circumstances are quite different from the circumstances before the IAA in this case.

64    With respect to Grounds 3 and 4, the Minister referred to the cases dealing with legal unreasonableness. The Minister submits that the first appellant made a decision about what submissions and new information he would provide to the IAA and it was not for the IAA to fill in the gaps by exercising its non-compellable power to get new information about the first appellant’s medical condition, his medication and the potential impact of his condition or any medication that he might have taken on his presentation and performance at the delegate’s interview. If a question was “left hanging” that was a result of decisions made by the first appellant and his advisers regarding the information that was put before the IAA.

65    I do not consider that the IAA acted in a legally unreasonable manner in failing to get new information. The appellants had decided what information they would seek to put before the IAA. At no time did the appellants indicate what answers or information given at the interview may have been affected by any drugs the first appellant was taking for his medical condition. Furthermore, as the IAA said, the first appellant did not indicate that he had any difficulties during the interview, including when the delegate directly inquired about his health.

66    There was a suggestion by the appellants that the IAA should have inquired as to whether the appellants’ migration agent was acting for them at the time the delegate called for information or submissions. It is said that the IAA “swept aside” the issue. It is not clear to me what matter this submission is directed to in light of the fact that the non-satisfaction of s 473DD(b)(i) is not in issue. In any event, I cannot see any basis for concluding that there was an obligation on the IAA to ask the second migration agent how long he had been acting for the appellants.

67    The primary judge said that there was nothing before the delegate at the time of the SHEV interview to suggest that the first appellant was experiencing any difficulty in answering questions put to him by the delegate or that the first appellant was otherwise unable to understand and coherently respond to questions put to him. The primary judge said that there was no medical evidence before the IAA suggestive of any such difficulty, or any suggestion that the first appellant would have laboured under any such difficulty because of any medication then being taken by him. In those circumstances, the primary judge said that it was well within the IAA’s area of decisional freedom for it not to obtain new information about the first appellant’s entire medical condition at the time of the interview. The primary judge said that the decision-making process was undertaken in a fast track scheme of review and that a decision-maker such as the IAA was best placed to appreciate whether, and if so when, it ought to get further information. The primary judge said that the fact that the IAA did not do so in the present case was unremarkable.

68    For the reasons I have given, the IAA did not commit a jurisdictional error in failing to get new information under s 473DC of the Act and these grounds of appeal must be rejected.

Conclusion

69    The appeal is dismissed.

Associate:    

Dated:    29 September 2023

SCHEDULE OF PARTIES