Federal Court of Australia

ACN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] FCA 724

ORDERS

THE COURT ORDERS THAT:

1.    The name of the First Respondent be amended to the Minister for Immigration and Citizenship.

2.    Leave be granted for the Appellant to file the amended Notice of Appeal, and to raise the ground specified in the amended Notice of Appeal for the first time on appeal.

3.    The appeal otherwise be dismissed.

4.    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

BURLEY J:

1.    INTRODUCTION

1    The appellant is a citizen of the People’s Republic of Bangladesh who arrived in Australia as an unauthorised maritime arrival on 12 July 2013. On 17 August 2017 he lodged an application for a Safe Haven Enterprise (subclass 790) visa. On 22 October 2019, a delegate of the Minister for Immigration refused to grant the visa. The visa application was then referred to the Immigration Assessment Authority for merits review. On 16 December 2019, the Authority affirmed the delegate’s decision.

2    The appellant then appealed to the Federal Circuit and Family Court of Australia (Div 2) (FCFCA) for constitutional writ relief under s 476 of the Migration Act 1958 (Cth). On 9 April 2021 a judge of the FCFCA dismissed that application: ACN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 685.

3    The appellant then appealed to this court. Shortly before the hearing, counsel for the appellant, Mr PW Bodisco, sought leave to amend the Notice of Appeal to raise the following single ground (omitting particulars), noting that it had not been raised squarely before the primary judge:

That his Honour erred in not finding that the IAA had applied the incorrect test at [5] of the decision.

4    The Minister, who was represented by Mr JG Wherrett of counsel, did not oppose the grant of leave to file the amended Notice of Appeal or leave to raise a ground not raised before the primary judge, and leave was granted to file the amended Notice of Appeal and rely upon it on appeal. Both parties supplied written submissions in advance of the hearing addressing the ground relied upon.

5    The appeal focusses on whether or not the Authority misapplied s 473DD of the Migration Act, which provided as follows (as at the date the Authority made its decision):

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.

6    The appellant contends that the primary judge erred in failing to recognise that the Authority erred in its application of s 473DD(b)(ii), citing CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 at [37]–[43], and that the primary judge erred in failing to find that this error was material. The Minister accepts that the Authority erred in applying s 473DD and submits that the primary judge correctly held that it had so erred. The consequence of this admission is that the dispute between the parties concerns whether the primary judge erred in concluding that the error was not material, and hence not jurisdictional error, within the bounds of that concept as set out in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; 98 ALJR 610 at [7].

2.    BACKGROUND

7    The decision record of the Authority noted that on 18 November 2019, the appellant’s representative provided on his behalf a one-page statement by the appellant that added to the claims that he had earlier made in his August 2017 visa application.

8    The Authority said at [5] of the decision:

However, the IAA statement also contained several new claims to fear harm. The first was that because he had attended events in Australia organised by the Bangladesh National Party (BNP) the applicant would be identified as a BNP activist. The second was that he would face “severe discrimination” if returned to Bangladesh on account of his mental health issues. While some information on the applicant’s political involvement in Australia and mental state was before the delegate, in the form of photographs of the applicant participating in political activities in Australia in 2014, 2016 and 2018 (but containing no reference to the BNP) and a February 2018 psychologist’s report, neither the applicant nor his representative, who attended the August 2019 SHEV interview with him, claimed either at that interview or in the post-interview submission that he feared harm for either of these reasons. At the SHEV interview he mentioned being politically active online in Australia in 2015 and 2016 but stopping that activity because his brother was threatened. At that time he didn’t refer to himself having any involvement with the BNP or notate on the photographs that he provided that they related to BNP activities in Australia. Rather, his account of political involvement at that time, and at all times prior to this submission, related entirely to JI. In addition, in relation to his claimed involvement with the BNP in Australia it appears to have started three years prior to the 2017 SHEV application being lodged. Neither the applicant nor his representative, who also assisted him to prepare the SHEV application, has explained why he did not mention any fear of harm for this reason in the SHEV application. The applicant was warned in correspondence from the Department of Home Affairs (the Department) and at the outset of the SHEV interview that it was his responsibility to raise all his claims for protection and provide evidence in support of those claims and that he might not have another opportunity to do so. No explanation has been provided for the delay in making these claims and none is apparent to me. Nor has any information been provided about who the applicant fears will discriminate against him or what form any differential treatment will take because of his claimed mental ill-health. Furthermore no updated information has been provided about the applicant’s current psychological state or any treatment he has received in the 22 months since the psychologist saw him on it seems a single occasion in February 2018. Nor is any information provided about whether he will require psychological treatment in the future. In these circumstances I am not satisfied that there are exceptional circumstances to justify considering the new information.

(Emphasis added)

9    In his oral submissions on appeal, counsel for the appellant relied only on the second further claim made as new information, namely that the appellant would face “severe discrimination” if returned to Bangladesh on account of his mental health issues, and did not press the first further claim as to new information regarding the appellant’s political activism. I refer to this below as the mental health claim.

10    In this regard, it may be noted that in [25] of its reasons the Authority noted that in December 2018 the appellant provided to the Department of Home Affairs a letter dated 16 February 2018 from a clinical psychologist to his doctor, referring to a meeting with the appellant three days earlier where he complained of anxiety, sadness, insomnia and anger. The Authority’s decision states that the psychologist recorded that the appellant “has difficulty in identifying specific distressed thoughts. But appears to have a clinically significant degree of anxiety and depression” (as quoted in [25] of the Authority’s decision). This letter was included within the appeal papers. The Authority went on to note that at the visa interview, when the delegate was inquiring as to whether he had worked in Australia, the appellant said that he had had some mental issues and that although he had tried to find jobs he did not continue to do so because he had suffered headaches and was on medication and the doctor had given him some exercises and books to read (at [25]). The Authority noted that in the further one-page statement the appellant provided in November 2019, he was not able to provide any updated information about the otherwise unparticularised mental health condition that he suffered or information about any treatment that he had had or would require (at [25]).

11    The Authority summarised the claims advanced before it by the appellant as follows (at [6]):

•    because his late father was a JI worker he started supporting JI. He was involved with them from 2004 to 2009 during which time he learnt about the party and its policies.

•    in 2009 he became a JI worker and contributed financially to the party. As a result AL cadres regularly demanded he give them money. He paid them because they said if he did not they would abduct him or lodge a false case against him.

•    in around 2011 he was promoted by JI to the position of ‘Kormi’. Angry AL cadres threatened him again and said he should join AL but he refused.

•    in January 2012 the JI promoted him to the position of ‘Rokon’.

•    in mid-2012 he was abducted from his house by AL cadres but released after being tortured.

•    in early January 2013 he was appointed JI General Secretary in his local district.

•    in early February 2013 he was implicated in a false political case and a warrant was issued for his arrest and he went into hiding.

•    about two weeks later, when he returned home to visit his sick mother, AL cadres dragged him from the house and shot and stabbed him in the legs. They also attacked his brothers and shot his mother who came to his aid. She died of her wounds three months later.

•    at that time his attackers abducted him in a van and he fell unconscious. They thought he was dead and threw him in the jungle where he remained for a day and night until being taken to hospital by a farmer.

•    after a month in hospital he left without telling anyone. JI leaders and workers he contacted advised him to leave Bangladesh.

•    he went to the capital Dhaka and paid an agent to organise a passport and visa for him and he left Bangladesh in late May 2013.

he fears if he is returned to Bangladesh he will be arrested at the airport, detained and tortured. He also fears AL activists and associated criminals will perceive him as wealthy and abduct and extort him and stop him from continuing his business.

(Footnotes omitted)

12    For present purposes it is sufficient to note that the Authority rejected the claims so advanced on a number of grounds, including that:

(1)    it was not satisfied that the activities the appellant had claimed to have engaged in and adverse treatment that he claimed to have suffered were a “lived experience” but considered them to be lacking in credibility ([32]);

(2)    that the claims advanced concerning the appellant’s political associations were not made in his arrival interview, which the Authority considered not credible ([33]);

(3)    the appellant’s claims that his father was a local Imam and JI (Jamaat-e-Islami) supporter, among other claims about his educational background and family, were not credible or supported by his 2013 visa interview and only arose later ([35]); and

(4)    a document supplied had admittedly been doctored, undermining the credibility of other documents put forward in support of the visa application ([37]).

3.    THE APPEAL

13    The Minister accepts that the Authority erred in applying s 473DD because it did not consider ss 473DD(b)(i) and (ii) before considering s 473DD(a). As he correctly observes, the High Court in AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; 269 CLR 494 at [11]–[12] required that approach (albeit that the decision of the Authority was made in December 2019). Accordingly, the present appeal turns on whether or not the primary judge erred in his consideration of the question of materiality in relation to the mental health claim.

14    The primary judge found at [59]:

In relation to the claim that the applicant would face severe discrimination from his mental state, the lack of any updated information as to his mental condition, together with the fact that he was not undergoing any treatment or taking any prescribed medication by a medical practitioner… indicates that the Authority did take account of this claim, but rejected it. The Court is not satisfied that the exclusion of the claim at paragraph 5 of the Authority’s decision would have materially affected the outcome of the Authority’s consideration. Accordingly, no jurisdictional error exists.

15    A failure to comply with a statutory pre-condition to the exercise of power will not constitute jurisdictional error unless the error is material. In LPDT the High Court said at [7]:

In most cases, however, an error will only be jurisdictional if the error was material to the decision that was made in fact, in the sense that there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred. That is because it is now accepted that a statute which contains an express or implied condition to be observed in a decision‑making process is ordinarily to be interpreted as incorporating such a "threshold of materiality" in the event of non‑compliance.

(Footnotes omitted)

16    The High Court went on to explain that (at [15]):

… a court called upon to determine whether the threshold [of materiality] has been met must be careful not to assume the function of the decision-maker: the point at which the line between judicial review and merits review is crossed may not always be clear, but the line must be maintained.

(Footnotes omitted)

17    Further, at [16], the High Court stated that:

… unless there is identified a basis on which it can be affirmatively concluded that the outcome would inevitably have been the same had the error not been made, once an applicant establishes that there has been an error and demonstrates that there exists a realistic possibility that the outcome of the decision could have been different had that error not been made, the threshold of materiality will have been met (and curial relief will be justified subject to any issue of utility or discretion).

18    The Minister points to several decisions of this court where the question of materiality has been raised in the context of s 473DD including DPT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 15 (Colvin J at [52]); AZT22 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 90 (Banks-Smith and Jackson JJ at [80]); and BYT17 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 157 (Stewart J at [36]).

19    In these decisions, the question under consideration was whether the decision with reference to which materiality is to be considered is first, the procedural decision of the Authority under s 473DD not to consider the new information because it was not satisfied that the grounds for doing so were established, or secondly its ultimate decision to affirm the decision of the delegate. In BYT17, Stewart J considered that there is conflicting authority on the point (at [36]). His Honour did not find it necessary to resolve that difference because, on the facts of that case, the outcome of both was the same, namely that materiality and hence jurisdictional error had been established (at [46], [51]-[52]). The same approach, albeit with a different outcome, may be taken in the present case.

20    First, in my view the error in failing to consider the mental health claim under s 473DD(b) was not material because, had the Authority adopted the correct procedure and considered the application of s 473DD(b) before considering s 473DD(a), it would inevitably have reached the same conclusion, namely that the new information should not be received.

21    In relation to the requirement under s 473DD(b)(i) (that the new information was not, and could not have been, provided to the Minister before he made his decision), it is plain that the information as to the mental health claim could have been provided before the Minister made the decision under s 65. In [5] of the Authority’s decision extracted above, it is noted that no explanation was provided for the delay in making the new claim regarding the appellant’s mental health and none was apparent to the Authority. Accordingly, the requirement of that subsection is not met.

22    In relation to the requirement under s 473DD(b)(ii) (that the new information was credible personal information which was not previously known and, had it been known, may have affected the consideration of the appellant’s claims), the question is whether the Authority could have concluded that the information was “credible” in the sense of being “capable of being believed”: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020] FCAFC 159; 294 FCR 150 at [75] per Mortimer and Jackson JJ (as her Honour then was), referring to CSR16. In this regard, it is relevant to consider the explanation given by the Authority where it considered the application of s 473DD in considering the counterfactual posed by the question of materiality: BXT17 v Minister for Home Affairs [2021] FCAFC 9; 283 FCR 248 at [146].

23    In [5] of its reasons, the Authority observed that:

(1)    the mental health claim raised for the first time the claim that the appellant would face “severe discrimination” if returned to Bangladesh because of his mental health issues;

(2)    some information in relation to his mental state was before the delegate in the form of the February 2018 psychologist’s report, yet neither the appellant, nor his representative who attended the August 2019 visa interview with him, advanced a claim during that interview that he feared harm for this reason;

(3)    nor did either the appellant or his representative raise the mental health claim in his post-interview submissions;

(4)    the appellant was informed in correspondence from the Department and at the outset of the visa interview that it was his responsibility to raise all of his claims for protection and to provide evidence in support of those claims, and that he may not have another opportunity to do so;

(5)    no explanation had been provided for the delay in making the claim;

(6)    no information had been provided about who the appellant fears will discriminate against him or the form that any differential treatment will take because of his claimed mental ill-health; and

(7)    no information had been provided about the appellant’s psychological state or any treatment he had received in the 22 months between when the psychologist saw him and when he provided the further one-page statement, or whether he would require psychological treatment in the future.

24    Had the Authority considered s 473DD(b)(ii) prior to s 473DD(a), in my view these factors would inevitably have led to the conclusion that the mental health claim did not constitute “credible personal information which was not previously known and, had it been known, may have affected” the consideration of the mental health claim advanced. In this regard, it is apparent from (2) that the mental health condition of the appellant was known to the delegate before the 2019 visa interview. Further, it is apparent from (3) and (4) that although a known medical condition, the claim that the appellant feared harm on this basis was not made until November 2019. No supporting material was advanced before the Authority to indicate the basis upon which it was contended that the appellant may be the subject of discrimination or harm by reason of his medical condition (see (6)), or to support a contention that that the condition remained ongoing (see (7)).

25    Accordingly, the Authority’s error in failing to first consider the mental health claim under s 473DD(b) was not material because, had it adopted the correct procedure, it would inevitably have reached the same conclusion not to consider the new information, as is tolerably clear from its reasoning set out above. Per the approach taken by Colvin J in DPT17, this is the decision with reference to which materiality is to be considered.

26    The alternative hypothesis, described by Banks-Smith and Jackson JJ in AZT22 at [80], concerns the question of whether the overall outcome of the Authority affirming the delegate’s decision could have been affected had the further information been admitted. There is no challenge on appeal to the findings of the Authority that the balance of the claims advanced before it were properly rejected for the reasons summarised in section 2, [12] above. The remaining question is whether it is inevitable that the Authority would have reached the same conclusion in relation to the claim going to the mental health issue. In this regard the fact that, as the Authority found in (6), no information had been provided about who the appellant fears will discriminate against him, or the form that any differential treatment will take, or the point in (7) going to any ongoing mental health condition, provide ample basis to conclude that it is inevitable that the mental health claim would have failed to overturn the overall outcome of the Authority’s decision to affirm the delegate’s decision, even had the further information been admitted.

27    Accordingly, regardless of whether it is considered by reference to the Authority’s procedural decision not to consider the new information under s 473DD, or its ultimate decision to affirm the decision of the delegate, materiality and hence jurisdictional error has not been established.

4.    DISPOSITION

28    The appeal must be dismissed with costs.

Associate:

Dated:    2 July 2025