Federal Court of Australia

CYJ17 v Minister for Immigration and Multicultural Affairs [2025] FCA 432

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant to pay the first respondent’s costs, as agreed or taxed.

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

REASONS FOR JUDGMENT

NEEDHAM J:

1    This is an appeal from a decision in the Federal Circuit and Family Court of Australia (Division 2) (FCFCoA) delivered on 13 October 2022. The primary judge dismissed an application for judicial review of a decision of the Immigration Assessment Authority to affirm the decision of a delegate of the Minister for Immigration and Multicultural Affairs to refuse the appellant’s application for a Safe Haven Enterprise (Class XE) (Subclass 790) visa (protection visa).

How should “new information” under s 473DD be considered?

2    The appellant filed a notice of appeal on 3 November 2022. The notice of appeal lists only one ground of appeal, with typographical errors amended:

Grounds of appeal

SOLE GROUND:

Jurisdictional Error – The honourable Court below failed to consider that the Authority fell into jurisdictional error by adopting an erroneous construction of s473DD.

PARTICULARS:

The IAA:

(i)    misconstrued 473DD(b)(ii);

(ii)    made inaccurate factual statements;

(iii)    failed to consider new information in accordance with the law;

(iv)    failed to consider explanations and reasons advanced by the Applicant and adopted an unduly narrow construction of s 473DD. In doing so, it constructively failed to exercise its jurisdiction under s 473DD leading to jurisdictional error.

3    The question of substance in this appeal is whether the new information sought by the appellant to be taken into account pursuant to s 473DD of the Migration Act 1958 (Cth) was “material” in the sense used in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12.

4    The Minister concedes that each of the Authority’s and the primary judge’s submissions involved an error. In relation to the Authority’s decision, the Minister does not take issue with the fact that the Authority did not comply with s 473DD in its analysis of the new information, in that it did not assess the credibility of the new information. In relation to the primary judge’s decision, her Honour applied a different test from that set out in LPDT v Minister: understandably, as LPDT v Minister was a decision delivered after the decision of the primary judge.

5    The plurality in LPDT v Minister (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ, with Beech-Jones J agreeing on jurisdictional error and materiality at [38]) said (at [13]–[14], references omitted):

The applicant must satisfy the court on the balance of probabilities that the alleged error in fact occurred. Unless the error is of a type such as those identified at [6] above (where the error is always material and therefore jurisdictional), whether the error is, or is not, material is determined by inferences drawn from the evidence adduced on the application.

The question in these cases is whether the decision that was in fact made could, not would, “realistically” have been different had there been no error. “Realistic” is used to distinguish the assessment of the possibility of a different outcome from one where the possibility is fanciful or improbable. Though the applicant must satisfy the court that the threshold of materiality is met in order to establish that the error is jurisdictional, meeting that threshold is not demanding or onerous.

6    The respondent, very fairly, recognised that I can be satisfied that the applicant’s new information was not properly considered. As the matter was argued, the question was whether the new information was “material” to the decision. The Minister says that it was not material, as the outcome of the Authority would “inevitably have been the same”. The appellant says that the new information should have been taken into account and, effectively, that his state of mind at the interview stage (both with at the arrival interview and at the protection visa interview) was a relevant factor.

7    I now turn to the facts of the matter.

The appellant applies for a protection visa

8    The appellant, a national of Bangladesh, arrived in Australia on 30 January 2013 as an unauthorised maritime arrival. He attended an Irregular Maritime Arrival Entry Interview on 7 March 2013 with an officer of the Department of Immigration and Citizenship.

9    The appellant applied for a protection visa on 14 June 2016. In his application, the appellant claimed fear of harm from the Awami League due to his Hindu faith and attendance at Jamaat-e-Islami protests while studying in college between 2007–2008. He claimed that he was pressured by Awami League activists to join their party, beaten by them for participating in the protests and was often harassed at his family’s bakery where he worked.

10    On 8 December 2016, the appellant attended a visa interview. On 23 December 2016, his application was refused by a delegate of the Minister. The matter was referred to the Authority on 6 January 2017.

The Authority’s decision

11    The Authority considered whether to accept new information that was provided by the appellant. The information included:

(a)    an online “BD News” article about Awami League supporters attacking Hindus in Bangladesh;

(b)    an explanation in submissions clarifying information regarding a dispute he had with an Awami League “agent” named Sekander who he explained was a family friend to whom the appellant loaned money to be taken overseas; and

(c)    country information relating to the appellant’s alleged participation in a protest.

12    The Authority was not satisfied that any of this new information met the criteria under s 473DD of the Migration Act to be considered. In particular, the Authority was of the view that the new information regarding the agent “contradict[ed]” the appellant’s evidence during the protection visa interview, and that it was not apparent why this information was only provided at this stage. The news article provided by the appellant also pre-dated the delegate’s decision.

13    The Authority did not accept that the appellant was subject to discrimination or serious harm as a result of his religious beliefs. The Authority rejected many aspects of the appellant’s claims, and found that the appellant was not a credible witness.

14    The Authority concluded at [35] of its decision:

I have not accepted the applicant or his brothers were pressured by AL cadres to join the AL. I have not accepted the applicant was beaten up by AL cadres after attending a JI protest. I have not accepted that the applicant was harassed or threatened at his brother’s shop by AL cadres or that either AL or BNP cadres demanded political donations from him. I have not accepted that the applicant was robbed on his way to Nazipur or Pirojpur to buy bakery materials. I have not accepted the applicant was threatened by the AL after the 2008 election and up until the time he departed Bangladesh. I have not accepted the applicant was beaten by Tamils in Malaysia on the request of the AL in Bangladesh. I am not satisfied there is a real chance that the applicant will suffer serious harm from either the AL or BNP on his return to Bangladesh.

15    While the Authority accepted that there have been attacks on Hindus in Bangladesh in recent years, it found at [39] “the prospect of the applicant being caught up in an attack against the Hindu community or being forcibly displaced from his land and being denied protection or otherwise suffering serious harm to be remote”. The Authority did not consider that there was a real chance of harm after returning to Bangladesh due to his status as an asylum seeker.

16    The Authority was not satisfied that the appellant met the definition of refugee, nor that there was a real risk that he would suffer significant harm, under ss 36(2)(a) or 36(2)(aa) of the Migration Act respectively. On 14 June 2017, the Authority affirmed the delegate’s decision.

The proceedings before the primary judge

17    The appellant filed an application for judicial review on 3 July 2017, relying on the following “Grounds of application”:

1.    In making decision, the IAA acted without jurisdiction or in excess of jurisdiction when it failed to take into account relevant considerations.

2.    The IAA failed to assess harm based on my claims.

3.    The IAA failed to assess the present situation in Bangladesh since I left.

4.    The IAA decision effected by the natural justice.

5.    The IAA made decision without any verification of my genuine documentary evidences and statement.

6.    The IAA decision is identical or similar of the Departmental decision.

18    The appellant also provided the following particulars in his application:

IAA unreasonably raised doubt over my claims for my religious believe Hindu minority in Bangladesh. The Department and the IAA misunderstood or misconstrued the facts which was effect the decision.

And for the safety of my life I forced to leave Bangladesh by boat. When it became worse, I decided to leave Bangladesh.

I argue that the Department and the IAA asked many irrelevant questions to test the credibility of my evidence.

The Department and the IAA found inconsistency because the questions were asked in such a manner for which I was not prepared after arrived by boat in Australia. Sometimes I was nervous and confused at the time of interview with the Department & the IAA. I did not understand interpreter properly.

For the protection of my life and I became serious target by the Muslim Fundamentalist and their activists.

The Department has accepted that I was very confused. I, myself was not understanding what answer I was giving for what question. I will provide more details in my Amended Application.

I believe I was denied procedural fairness when the hearing was conducted not freely and fairly.

19    The appellant appeared in person at the hearing on 5 September 2022.

20    The primary judge outlined a number of deficiencies with the appellant’s grounds of review. Her Honour was not satisfied that the Authority’s decision was identical or substantially the same as the decision of the delegate, and considered that the Authority had undertaken its own independent assessment of the appellant’s claims and evidence. The primary judge determined that it was open to the Authority to conclude that the appellant’s risk of harm as a Hindu was remote, and to attribute the appellant’s confusion during the protection visa interview to a lack of credibility. The primary judge considered that the balance of the grounds went to the merits of the Authority’s decision.

21    At the hearing, noting that the appellant was self-represented, counsel for the respondent considered three potential issues with the Authority’s consideration of the new information provided by the appellant under s 473DD of the Migration Act. However, the respondent submitted that any errors in the Authority’s decision were not material so as to amount to jurisdictional error. The three potential issues, and the way they were dealt with by the primary judge, were as follows:

(a)    The Authority did not expressly apply the criterion set out in s 473DD(b)(ii) when considering the new information that the “agent” was the appellant’s family friend. The primary judge found that the Authority “did engage to some extent with the credibility of the information” by finding that it contradicted the appellant’s previous account of the agent, but to the extent that there was an error, the information that the agent was the appellant’s family friend could not be realistically capable of altering the Authority’s finding that the dispute constituted a private matter, and did not ground a finding that the appellant has a fear of serious harm.

(b)    The Authority did not expressly consider whether country information contained in the news article provided by the appellant constituted “credible personal information” under s 473DD(b)(ii). However, the primary judge considered that the news article contained only general country information and there was no realistic possibility of a different result had the Authority applied the statutory criterion.

(c)    The Authority failed to consider the context of the appellant’s journey to Australia where, in his words, he “had to fight with dead” in considering the appellant’s responses at the arrival interview. However, the primary judge found it was open to the Authority not to refer to this aspect of the appellant’s submissions, presumably because it did not regard it as new information in light of previous evidence given by the appellant as to his escape from Bangladesh. The primary judge also considered that the Authority may be considered to have received new information with respect to the appellant’s state of mind as to why he “was afraid to add more details” regarding his political involvement at the protection visa interview, namely that he was afraid that he would be accused of providing inconsistent accounts of information. However, the primary judge determined that the Authority’s failure to consider this information did not deprive the appellant of the possibility of a different result to amount to jurisdictional error.

22    The primary judge dismissed the application on 13 October 2022. At that point, the leading authority on materiality was MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17, which was applied by the primary judge. In that decision, Kiefel CJ, Gageler, Keane and Gleeson JJ considered that the court’s role in determining materiality involves determining the counterfactual question of whether the decision that was made could realistically have been different. The plurality explained at [38]:

The counterfactual question of whether the decision that was in fact made could have been different had there been compliance with the condition that was in fact breached cannot be answered without determining the basal factual question of how the decision that was in fact made was in fact made. Like other historical facts to be determined in other civil proceedings, the facts as to what occurred in the making of the decision must be determined in an application for judicial review on the balance of probabilities by inferences drawn from the totality of the evidence. And like other counterfactual questions in civil proceedings as to what could have occurred – as distinct from what would have occurred – had there been compliance with a legal obligation that was in fact breached, whether the decision that was in fact made could have been different had the condition been complied with falls to be determined as a matter of reasonable conjecture within the parameters set by the historical facts that have been determined on the balance of probabilities.

(references omitted).

23    The plurality in MZAPC v Minister considered at [51] that while the court is not “to assume the function of the decision-maker”, it “is nevertheless in each case charged with the responsibility of determining for itself whether the result in fact arrived at by the decision-maker in the decision-making process could realistically have been different had that procedural irregularity not occurred.”

This appeal

What is the relevant law?

24    Section 473DD of the Migration Act, which is now repealed, relevantly provided as at 14 June 2017:

473DD Considering new information in exceptional circumstances

For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

(a)    the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

(b)    the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

(i)    was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

(ii)    is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.

25    Section 473DD was considered by the High Court in AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494; [2020] HCA 37, where Kiefel CJ, Gageler, Keane and Gordon JJ stated at [11]:

Logic and policy therefore demand that the Authority assess such new information as it might obtain from the referred applicant first against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and only then against the criterion specified in s 473DD(a). If neither of the criteria specified in s 473DD(b)(i) and s 473DD(b)(ii) is met, the Authority is prohibited from taking the new information into account in making its decision on the review. Further assessment of the new information against the criterion specified in s 473DD(a) is redundant. If either the criterion specified in s 473DD(b)(i) or the criterion specified in s 473DD(b)(ii) is met, that is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a). If both the criterion specified in s 473DD(b)(i) and the criterion specified in s 473DD(b)(ii) are met, that too is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a) and which must heighten the prospect of that criterion being met.

26    “Credible personal information” is considered to be “information which is open to be or capable of being accepted by the Authority as truthful (or accurate, or genuine)” (CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 at [41] (Bromberg J)). At this stage, the decision-maker does not need to determine whether or not this information is true.

27    With respect to the meaning of “exceptional circumstances”, in Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; (2018) 92 ALJR 481; [2018] HCA 16, Gageler, Keane and Nettle JJ noted at [30]:

Quite what will amount to exceptional circumstances is inherently incapable of exhaustive statement. The word “exceptional”, in such a context, is not a term of art but “an ordinary, familiar English adjective”: “[t]o be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered”.

28    As noted above, materiality was most recently considered by the High Court in LPDT v Minister. In that decision, the plurality held at [7] (with Beech-Jones J agreeing at [38]) that in most cases, an error will be material where “there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred.” In discussion with the Court, counsel for the respondent agreed that this was a “low bar”.

The Minister’s submissions

29    The Minister addressed the three issues regarding s 473DD(b) considered by the primary judge and summarised at [21] above.

30    The Minister contended that the primary judge correctly found that the Authority did not adequately engage with the credibility of the purportedly new information regarding Sekander or “the agent” in accordance with s 473DD(b)(ii). However, the Minister submitted that even if this information were properly considered under this provision, it would not meet the requirements of s 473DD(b)(ii) as it was “an irrelevant detail about the substance of the claims” and therefore not “capable of ‘affecting the consideration of the referred applicant’s claims’”. The Minister further submitted that to the extent that this information should have been accepted as meeting s 473DD(b)(ii), there was nevertheless no jurisdictional error as it could not have realistically affected the Authority’s ultimate outcome. The Minister noted that the fact that the agent was a family friend was not a relevant or material consideration, and the date of the argument about money was given as 2007–8. The Minister’s counsel, Ms Francois, took me to the appellant’s original visa application, which did not mention the money dispute. When the matter came before the Authority, there was consideration of the money dispute with Sekander ([21] of the Authority’s decision). The Authority considered that:

Given that this dispute occurred around 2007 and 2008 and the applicant did not leave Bangladesh until 2011 and nothing happened to him during that time I am also satisfied that there is not a real chance that this prior dispute will cause him any harm in the future.

31    The Minister noted that the submission received from the appellant on 27 January 2017 was the first occasion when Sekander was identified as a family friend. The information was given as an explanation for the reason for the transaction. The respondent submitted that the fact that Sekander was a family friend – in the context of an argument in 2007–8 – made no difference and could not have had any impact on the outcome of the delegate’s, or the Authority’s, decision.

32    The respondent argued that the news article did not meet the requirements under s 473DD(b) as it was information that could have been provided to the delegate of the Minister before his decision was made, and the information would not have “affected the consideration of” the appellant’s claims as “the question of attacks on Hindus was not in dispute and the real issue was the effectiveness of state protection at the time of the decision which the article did not address.” To the extent that the Authority made an error, the respondent submitted that this would not have lead to a different outcome to amount to jurisdictional error. The Minister further noted that it is unclear that the news article, which referenced specific people and their conduct, would indeed constitute country information, or rather was more in the vein of “personal information”.

33    Finally, the respondent submitted that the information provided by the appellant regarding how his answers to his arrival interview should be considered in the context of the appellant’s journey to Australia and his fears of providing inconsistent information amounted to a submission, as the facts underlying this submission were already known to the delegate. In any event, the Minister submitted that this information “could not explain the fundamental inconsistencies and vagueness in the various versions of the appellant’s claims” and therefore would not meet the requirements under s 473DD(b) nor the test for materiality to constitute jurisdictional error.

34    In oral submissions, the Minister made an additional submission which was that the concerns that the appellant expressed about his state of mind at the time of the interviews were adequately dealt with by the Authority. The Minister submitted that the appellant’s claims in respect of his journey to Australia was not considered to be new information by the Authority, but a submission that was in fact taken into account by the Authority at [18], [23] and [24] of its decision where the Authority assessed how the appellant answered questions during the arrival interview. This information was not, unlike the information regarding the agent and the news article, expressly identified as new information in [4]–[7] of the Authority’s decision.

The appellant’s submissions

35    The appellant was unrepresented and appeared via an interpreter. He did not file any written submissions. The Minister’s submissions, both oral and written, were interpreted to him, and he said that he had understood them.

36    The appellant said that it should not be taken from the fact that he did not leave Bangladesh until 2011 that he had no problems, either specifically with Sekander, or more generally. He said that his problems “increased slowly” and he had no guarantee of safety. He sought to give specific examples of matters that had occurred to his family while he was away, as evidence from the bar table, but these were matters that occurred as recently as two months ago and were not before the Authority.

37    The appellant said that the materiality of the BD News article was that “every day Hindus are being attacked and persecuted and harassed, and that is why the [Hindu population of Bangladesh] is decreasing there day by day. They have no say, the Hindus there”.

38    In relation to the information about Sekander being a family friend, the appellant said that the importance of that was that they were “very angry. And they will do anything. They will attack or they will harm me, and that is why also I cannot go back”.

39    As to his state of mind at the interviews, he made no specific submissions on that point, although he acknowledged that he made a submission about his poor state of mind at the time. He did not add to it when invited to say anything that he wanted to.

Should the new information have been taken into account?

40    The three areas of new information must each pass the following tests, in order for them to be available to be considered by the Authority. They are:

(a)    there must be exceptional circumstances to justify considering the new information; and

(b)    it was either:

(i)    not and could not have been provided to the Minister before the decision was made; or

(ii)    credible personal information which was not previously known and, had it been known, may have affected the consideration of the appellant’s claims.

41    Much of the submissions from the Minister centred on the question of whether the failure to consider the information was material (that is, whether it was a realistic possibility that it could have made a difference, as expressed by the plurality in LPDT v Minister). But the matter falls on the first hurdle, because there are no “exceptional circumstances” justifying the Authority considering the new information. In relation to the appellant’s state of mind, and the news article (whether it was country information or not), there is nothing exceptional about the circumstances in which they were produced.

42    If I am wrong on that point, then it seems to me that, while each piece of information is credible in the sense that it was not “inherently implausible” (as conceded by the Minister) and so “capable of being believed”, I need to consider the test at s 473DD(b)(ii) and determine whether the errors made (ie, the failure to engage with the proper tests regarding the new information) “could, not would, ‘realistically’ have been different had there been no error”. I am required to engage with the counterfactual (see MZAPC at [38]) and determine whether, if taken into account, the result could have been different.

43    The three pieces of new information, when regarded against the significant credit findings made by the Authority at [13]–[14] above, could not realistically have made a difference to the outcome. Even had the Authority regarded the information about the money dispute with Sekander, and the BD News article as to particular attacks on Hindus, as credible, the weight of that evidence is negligible when looked at against the findings the Authority actually made. As noted above in [15], the Authority accepted that there had been attacks on Hindus in Bangladesh.

44    In relation to the money dispute, the findings of the Authority correctly noted that this was a private, and not a political matter, and given the time lapse between the dispute and the leaving of Bangladesh, was unlikely to result in harm to the appellant on his return. If anything, the fact that the dispute was with a family friend made it more of a personal, rather than a broader, issue for the appellant.

45    I agree with the Minister’s submission that the Authority was careful to consider the state of mind of the appellant, and had noted that the initial interview was not the place for all of the information to be obtained. I also accept the submission that there are no exceptional circumstances, and the information in relation to the family friend and the country information was available to have been provided to the Minister.

46    The information could not realistically have made a difference, had it been considered by the Authority or by the primary judge, and accordingly the appeal must fail.

Orders

47    The appeal should be dismissed. The appellant is to pay the respondents’ costs, as agreed or taxed.

Associate:

Dated:    5 May 2025