BAK18 v Minister for Home Affairs

1. The appeal is allowed.
2. The orders of the Federal Circuit Court of Australia made on 2 October 2018 are set aside and, in their place, the following orders are made: (a) constitutional writs issue quashing the decision of the Immigration Assessment Authority (the "Authority") made on 28 February 2018 and remitting the matter to the Authority for determination of the decision referred to the Authority by the Secretary pursuant to s 473CA of the Migration Act 1958 (Cth), concerning the appellants, according to law having regard to the reasons published today together with these orders; and (b) the first respondent pay the costs of the applicants of and incidental to the proceeding before the Federal Circuit Court of Australia.
3. The first respondent pay the costs of the appellants of and incidental to the appeal to this Court. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

GREENWOOD J: 1 The appellants in this appeal (QUD 755/2018) are described as BAK18, BAL18, BAM18 and BAN18. They are Sri Lankan citizens of Tamil ethnicity. 2 BAK18 is the husband of BAL18. Their children are an elder daughter, BAM18 and a younger daughter, BAN18 who was born in Australia. BAK18, BAL18 and BAM18 arrived in Australia as unauthorised maritime arrivals on 18 April 2013. However, they had travelled together with, and thus arrived with, the mother of BAK18, described as BBJ18 and another son of BBJ18 (the brother of BAK18), BBI18. The individuals described as BBJ18 (the mother of the two sons) and BBI18 (the youngest son of BBJ18 and brother of BAK18) are appellants in the separate appeal (QUD 757/2018). The husband of BBJ18 (and father of BAK18 and BBI18) died in 2002 in India. In these reasons, depending upon the context, I describe the BAK18 appellants and the BBI18 appellants as either appellants, applicants or claimants. 3 The two appeals were not heard together. They were heard one after the other. QUD 755/2018 was heard first, followed by QUD 757/2018 in the afternoon. That separation is concerned, in part, with arguments about the extent to which aspects of the matters relevant to this appeal are relevant to the other, and vice versa. In these reasons, I will address aspects of the chronology that touch on both appeals and particularly aspects of the chronology in this present appeal emphasised by the appellants. 4 As to the relationship between the various appellants described earlier, the following family tree depicts the relationships: 5 On 17 August 2016, the Minister's Department invited BAK18 to make an application for a Temporary Protection visa or a Safe Haven Enterprise (subclause 790) visa (a "Safe Haven visa"). Included within that invitation were BAL18, BAM18 and BAN18. On 12 December 2016, BAK18, by a migration agent, Ms Rebecca Lim, applied for a Safe Haven visa which included his wife and two daughters as his dependents. 6 In the "fact sheet" accompanying the letter of 17 August 2016 (entitled "Invitation to Apply Fact Sheet"), the appellants were told this: If there are members of the same family unit as you (such as a partner or dependent children) in Australia, you can apply together on the same form. ... If members of the same family unit as you have made separate applications, please notify the Department when you make your application, to ensure your applications are considered together. 7 In the application dated 12 December 2016, Ms Lim said: They [BAK18, his wife and two children] live with his mother [BBJ18] who is Sinhalese and a survivor of rape, torture and breast cancer; and his brother [BBI18]. She cannot be separated from both her sons and grandchildren as she needs her family intact. 8 On 4 January 2017, the Department, by letter, advised the appellants that (among other things), processing of the application had commenced. 9 In the context of statements made addressing the topic of the appellants' obligation to provide additional information or documents within 14 days of a request, the letter said: "any information received before the decision is made will be considered". 10 On 3 May 2017, by letter, the Department requested BAK18 and BAL18 to attend an interview to discuss the application and his protection claims. The Case Officer would be "Rob". 11 In the accompanying document (entitled "Important Information about your Protection Visa interview"), the appellants are told this: The assessment of whether you are eligible for a Protection visa will be made by a delegated officer on behalf of the Minister. The assessment may be made by a different officer to the one that interviews you. The officer making the assessment (the delegated officer) will consider the recording of the interview (if you consent to the interview being recorded), and all other information you have provided the Department, and may make that assessment without further contact with you. 12 On 17 May 2017, BAK18 was interviewed by Rob. The Immigration Assessment Authority ("IAA") notes at para 6 of the decision that: Under the headings "Other issues - procedural - interviewed by one delegate decided by another delegate" and "Other issues - procedural - family unit" the representative puts forward discussion about the decision making process. The submission noted that the applicant was not put on notice that the delegate who interviewed the applicant would not be deciding the case and that the interviewing officer indicated that the applicant and his wife would be considered as members of the same family unit along with his brother and mother in the assessment. In this regard the submission to the IAA includes a Statutory Declaration from the representative who assisted the applicant with his SHEV application which states that when the applicant and his wife were interviewed "they were to be included as members of the family unit with his brother and mother" and that she was not informed the applications would be assessed separately until she received the decision. I note that initially in the SHEV interview the interviewing officer stated that the decision could be made by another officer; however toward the end of the interview with the applicant the interviewing officer stated that as the decision maker he intended to look at the applicant together with his brother and mother as members of the same family unit and this may have raised some expectations that were not met. 13 Counsel for the appellants observes in submissions, based on the audio recordings exhibited to the affidavit of Angus Francis, that the Departmental Case Officer, Rob, explained to BAK18 that he recognised that there were very strong emotional ties and bonds within the family, including reliance by the mother (BBJ18) on both sons for her medical care (as well as a lack of support in Sri Lanka) which would mean that they would all (the two sons, BAK18, BBI18, BAK18's wife BAL18, and BBJ18) have to reside "as a family unit" in Sri Lanka. 14 On 31 July 2017, the Minister's delegate, Protection Visa Case Officer, Stephen, refused the appellant's application for a Safe Haven visa. 15 As already mentioned, BBJ18 (the mother/grandmother) and BBI18 (the younger son) arrived in Australia as unauthorised maritime arrivals on 18 April 2013 together with BAK18, BAL18 and BAM18. 16 On or about 24 October 2013, BBI18, the younger son, provided a statement to the Minister setting out various protection claims. A further statement was provided to the Minister on 7 July 2014 setting out further details of protection claims. These two statements are described as the "Initial Statements". They were made prior to the lodging of an application by the younger son (BBI18) and his mother (BBJ18) for a Safe Haven visa. 17 On 18 July 2016, BBI18 was invited to lodge an application for either a Safe Haven visa or a Temporary Protection visa. The invitation attached the "fact sheet" containing the same statements quoted at [6] of these reasons. 18 On 4 September 2016, the younger son lodged an application for a Safe Haven visa which included "his mother as his dependent". It was lodged by Ms Lim. In that application, BBI18 attached a statement setting out aspects of his claims. In it he refers to three interviews called "Entry and Screening Interviews" with a Departmental Officer and he refers to "a detailed statement in my screening interview" which seems to be a reference to the statements of 23 October 2013 and 4 July 2014. In the letter lodging the application, Ms Lim says this (among other things): … The Applicant [BBI18] is an unmarried 27 year old male of mixed Tamil and Sinhalese ethnicity. He practices the Hindu faith. He is the primary carer for his mother [BBJ18] who is Sinhalese and a survivor of rape, torture and breast cancer. She is unable to sign the application because she has lost much of her memory due to her breast cancer and the abuse she suffered in Sri Lanka. We were able to complete her application from the information provided by her son [BBI18]. We will provide a letter from her oncologist when it is in hand. This family fled Sri Lanka and sought safety in India in 1990. [BBI18] is frightened to return to Sri Lanka. He is caring for his ill mother and cannot be separated from her. He does not have any close networks in Sri Lanka or knowledge of the systems and agencies. He does not own any land or house in Sri Lanka. He participated in a protest against the forced return of Sri Lankan refugees from India. He is featured in the video clip report in Tamil and we have provided the links to … both the Tamil and English news published in March 2013. … Complementary Protection While [BBI18's] claims for protection are in no way conceded, in the event the decision maker considers he and his dependent mother do not meet the criteria as set out under the Migration Act 1958, we ask the decision maker to recommend that they be afforded complementary protection and meet the criterion for protection of a SHEV visa. … [footnotes omitted] 19 In his statement supporting the visa application, BBI18 says that his father was severely abused by the occupying Indian army (which had established a camp opposite the family house in the village in an Eastern Province of Sri Lanka) in the period 1987 to 1990; his father was beaten and tortured in April 1990 due to a particular village incident; his father was accused of links to the LTTE in 1990; his parents were attacked in the family home in 1990; his mother was brutally raped and tortured in April 1990 by soldiers of the Sri Lankan army; he and his family were displaced to Indian refugee camps from 1990-2012; he travelled to Sri Lanka on 17 August 2011 and again on 7 January 2012; on the second occasion he hoped to see his father's house in the village of Painkulam but the village was occupied by SLA soldiers; he returned to Palamthoddam to stay with a friend; the next day he was taken into custody at an SLA camp due to an incident in the village along with another 11 or so Tamil male adults; he was beaten, kicked and punched and ultimately released; he was very frightened and released and returned to India in April 2012. As to his mother [BBJ18] he says this: After arrival in Australia 4 I cannot be separated from my mother and she cannot be forced to return to live in Sri Lanka as she is very unwell. I do not want to be permanently separated from my only brother who as my eldest sibling should arrange and conduct my marriage rituals in the course of time. Since I have lost my father, my eldest brother must act as my father and help me with my needs. 5 … 6 It would be devastating to my family if I was removed from them. We have been an intact family living in refugee camps in India. When we had problems with the QBranch, we all decided to seek a solution and remain an intact family. We travelled to Australia together on the same boat seeking permanent protection as an intact family. 20 On 1 May 2017, BBI18 was invited to attend an interview with Case Officer Rob on 15 May 2017. The interview took place with Rob on that day. As already mentioned, BAK18 was interviewed by Rob on 17 May 2017. 21 On 21 August 2017, Ms Lim sent an email to Protection Visa Officer, Rob Hatter, attaching a report dated 8 August 2017 from Dr Burgess-Limerick, a Psychologist, who was providing professional advice to BBJ18 (the mother/grandmother). In that report, Dr Burgess-Limerick describes BBJ18 in this way: … [BBJ18] is part of a fully functional extended family unit in Australia. She and her extended family have a strong sense of familiarity, safety, and belonging here. [BBJ18] gives every indication of functioning well in her home environment to date. Her sons and daughter in law take care of her and she supports her family with detailed practical day to day care. Her two sons, daughter-in-law and granddaughters are all critical to her mental health. I am deeply concerned that separating [BBJ18] from her eldest son and his family, will have a catastrophic impact on the family and on [BBJ18] herself. I strongly recommend that [BBJ18], and her sons, daughter-in-law and granddaughters are allowed to stay in Australia as an intact family unit for the health and well being of every member of the family. Yours sincerely Tracey Burgess-Limerick, PhD Registered Psychologist 22 The application by BBI18 and his mother BBJ18 was refused by the Minister's delegate, "Stephen" on 18 October 2017. This delegate decided the application by BBI18 (including his mother, BBJ18) and the application by BAK18 (and his dependents). BAK18's application had been refused on 31 July 2017. As to the application by BAK18 and his dependents, the delegate (Stephen) advised the appellants in a letter dated 31 July 2017 that the refusal decision had been referred to the IAA for review under Part 7AA of the Migration Act 1958 (Cth). The delegate also said that the Department had provided the IAA with the following information: "the attached decision record; any material you gave to the Department before the refusal decision was made; any other material the Department considers to be relevant to the review; [and BAK18's contact details]" [emphasis added]. 23 As to the refusal decision concerning BBI18 and his mother, the delegate (Stephen) also referred the refusal decision to the IAA for review. In the letter to those appellants of 19 October 2017, the delegate said that the Department had provided information to the IAA and described that information in the same terms as the quote at [22] of these reasons. 24 The BAK18 appellants say that the delegate did not give the IAA the material held by the Department concerning claims for protection by BBI18 and BBJ18, that is, the claims made by the mother (BBJ18) of the two sons and the claims made by the youngest son (BBI18), as part of the material relevant to the review of the decision concerning the BAK18 claimants. The BAK18 appellants say that that material also included the "Initial Statements" made by BBI18 in October 2013 and July 2014 identifying aspects of the factual basis for claims for protection. 25 The BBI18 and BBJ18 appellants say that the delegate did not give the IAA, so far as the review of the refusal decision concerning their application is concerned, the material held by the Department concerning the claims made by BAK18, or the Initial Statements of BBI18. 26 The BAK18 appellants say that they were told that all claims of the BAK18 appellants would be assessed by the delegate together with the claims of BBI18 and BBJ18, "as members of the same family unit". They also say that the material concerning the younger brother (BBI18) and the mother of the two sons is "relevant" to the review of the refusal decision concerning the BAK18 appellants since they are all from the same family unit, and the material concerning the BBI18 appellants goes to whether the IAA could reach a state of satisfaction about the claims of the BAK18 appellants as to whether BAK18 holds a well-founded fear of persecution for a Convention reason or whether the elements of a claim to complementary protection are made out. 27 The BAK18 appellants say that on 4 August 2017, the IAA advised the appellants that the Department had provided the Authority with "all documents they consider relevant to your case". This was said to include "any material that you provided to the departmental officer before they decided to refuse you a protection visa". 28 On 22 August 2017, the BAK18 appellants lodged, by email, submissions dated 21 August 2017 with the IAA in which the IAA's attention was drawn to the circumstance that the application by the BAK18 claimants had not been considered "together with" the claims made by the BBI18 and BBJ18 claimants and that delegate "Rob" had expressly told the BAK18 claimants that the claims would be considered together with the claims of the BBI18 and BBJ18 claimants. 29 As to the review by the IAA of the refusal decision concerning the BBI18 and BBJ18 claimants, the IAA sent those claimants a letter dated 25 October 2017 which contained the statements quoted at [22] of these reasons. 30 On 11 November 2017, the BBI18 appellants lodged, by email, submissions dated 11 November 2017. Those submissions referred to the submissions lodged on behalf of the BAK18 appellants lodged on 22 August 2017 (dated 21 August 2017) and made the corresponding point that delegate "Rob" had told BAK18 that his claims would be considered together with those of the BBI18 appellants. 31 On 15 February 2018, the IAA wrote to the Department of Home Affairs and, among other things, said this: … 3. In his statement of claims [BBI18] makes a number of references to "statements from Refugee Advice and Casework Services (RACS)" and he corrects errors made in that statement. No RACS statement has been referred to the IAA and it is not apparent that the delegate had regard to a statement from RACS. The IAA raises this as the Reviewer is seeking to avoid the same jurisdictional error as recently found in the case 'CWG17' where the IAA review decision was quashed because the IAA did not have regard to material given by the applicant as part of his application as this material was not referred to the IAA. To avoid a similar error can DHA please check if there is such a statement from RACS and if this was provided by the applicant as part of his SHEV application: stressing the point that IF the applicant provided this as part of this SHEV application can DHA please refer this? Thank you in advance for your assistance with this matter. 32 On 28 February 2018, the IAA affirmed the decision to refuse the BAK18 appellants a Safe Haven visa. The appellants say that the IAA did not take into account any of the material concerning the application made by BBI18 (the younger brother of BAK18) and BBJ18 (the mother of both brothers) and the claims made for the grant of protection visas to those family members as part of the family factual matrix in deciding whether s 36(2)(a) or s 36(2)(aa) were engaged so far as the BAK18 appellants are concerned. Two decisions were issued on 28 February 2018. The same reviewer decided the review of the refusal decision concerning the BBI18 appellants. The IAA affirmed the decision to refuse the BBI18 appellants a Safe Haven visa. In doing so, the IAA did not have the "Initial Statements" of BBI18 from October 2013 and July 2014 and did not have before it any of the material concerning the claims for protection of the BAK18 family members in deciding whether s 36(2)(a) or s 36(2)(aa) were engaged so far as the BBI18 appellants are concerned. 33 Before turning to the question of how these various matters are said to find expression in a failure to discharge the statutory review function giving rise to jurisdictional error on the part of the IAA, and error on the part of the primary judge in failing to identify jurisdictional error on the part of the IAA, it is necessary to say something further about the claims made by the BAK18 appellants, the relationship between the facts and circumstances of those claims and the facts and circumstances of the claims of the family members BBJ18 and BBI18, and something further about the submissions dated 21 August 2017 (lodged by email on 22 August 2017) to the IAA on behalf of the BAK18 appellants. 34 As to the claims of the BAK18 appellants which were said to give rise to Australia's protection obligations and which were the subject of examination by the IAA in conducting its review function, the IAA noted these matters in its summary at para 13: • [BAK18] was born in Trincomalee, Sri Lanka. His father was Tamil, his mother Sinhalese and the applicant identifies as Tamil. • His parents' mixed marriage attracted disapproval. • In his statement of claims the applicant described the experiences of his parents, and other Tamils, in Sri Lanka. During the civil war the Indian Peace Keeping Force (IPKF) was present in Sri Lanka and his parents experienced harassment and abuse. His father was a village leader and came to the attention of the IPKF and the Sri Lankan army; he was accused of being an LTTE supporter, was regularly rounded up in security exercises, was detained and was beaten. His mother [BBJ18] was assaulted by soldiers when pregnant and she miscarried, and she was later burnt and raped by army soldiers. Because of their experiences the applicant hates Sri Lanka. • Due to the escalation in the civil war fighting the applicant's parents decided to take the family to India. In 1990 the applicant, his parents and his infant brother [BBI18] took a boat to India. They lived as refugees in India in refugee camps and the applicant has provided refugee identify documents in support of his claim. Life as refugees in India was difficult for the applicant and his family. The applicant's father died in India in 2002. • The applicant married another Sri Lanka refugee [BAL18] in India in 2010. • From 2009 the applicant became involved with Tamil political parties in India and supported a number of parties that supported Tamil rights. He was involved in protests and demonstrations, including a protest where an effigy of then Sri Lankan President Rajapaksa was burned. The applicant has provided photographs in support of his claims, including a photograph of his infant daughter [BAM18] carrying an LTTE Tiger flag. • One of the parties the applicant supported in India was the Naam Tamilar Katchi, and he has provided a photograph of himself with the party leader. Refugees in the refugee camps in India were not allowed to be involved in political activity and for this reason the party leader did not want him to become an official party member. However he was active in protesting against the Sri Lankan government and was one of a key group of 20 organisers. The Indian authorities, through the Q Branch, monitored these activities and the applicant was taken from the camp by the Q Branch on up to five occasions and had his details taken and was fingerprinted and videotaped. He was assaulted by the Q Branch officers. One occasion they warned him he would be taken to a special camp if he continued his activities. The applicant's wife stated at her own SHEV interview that the applicant has a Tiger tattoo. • The applicant believes the Q Branch and the Indian authorities share information with the Sri Lankan authorities and the Sri Lankan government is suspicious of Tamils who are active while abroad. The Sri Lankan government has demanded the return to Sri Lanka of about 450 people and one of the people named on that list was one of the men who organised a protest with the applicant. A Sri Lankan intelligence officer was active in the refugee camp in India and the person who reported this officer to the Q Branch was later killed and his wife was attacked. The Sri Lankan officer went into hiding but "we found the man and beat him up and he escaped". • The applicant's younger brother was taken into custody by the Sri Lankan army in 2012. • In 2013 the applicant decided to leave India with his wife and daughter and, along with his mother and his brother, he came to Australia by boat. • In Australia the applicant has become involved with a cricket team comprising Tamils in Australia. He is the captain of the team and the team's activities have attracted social and mainstream media coverage and the applicant has provided copies of a Facebook post for his team, the Brisbane Cool Boys, photographs, a letter from Tamil Eelam Cricket dated 11 May 2017 and a media article from Brisbane Times dated March 2016. The teams and individual players have been abused and harassed by some who impute them with LTTE associations. The applicant also uses social media to share information about government activities against the Tamil people. • The applicant is aware of accounts of harassment and harm to Tamils in Sri Lanka and fears he would be harmed by the authorities if returned. He is concerned that because of his father's activities and his own political activism that the Sri Lankan authorities may be aware of him and he would be targeted on return. • The applicant has no support network in Sri Lanka to assist in any resettlement and he and his family would be vulnerable because they have lived in India, and now Australia, for most of their lives. He has not kept in contact with any relatives in Sri Lanka and has little knowledge of life in Sri Lanka. • His mother and brother reside at the same address in Australia as the applicant and his wife and daughters. His mother has had breast cancer and has ongoing care needs. Medical reports regarding her treatment have been provided. • The applicant has been training in logistics and provided certificates of his qualifications. • The applicant's personal information was breached by the department and he lodged a complaint with the Privacy Commissioner. 35 As to the submission dated 21 August 2017 to the IAA by the representatives for the BAK18 appellants, that submission attached a document which is an extract from a Safe Haven visa application submitted to the Department of Immigration and Border Protection by a person who was a captain of a Tamil Eelam cricket team in Australia known as the "Ocean 12 team". That team is said to be a cricket team of Tamil refugees based in Sydney. The document, or at least the extract from the document, was provided to BAK18 on the footing that it had, it seems, in part at least assisted that person in demonstrating to the Department that Australia's protection obligations had been engaged so far as that other person was concerned. The point the BAK18 appellants make is that although, of course, the extract was concerned with the circumstances of that other person, it was nevertheless said to be "new information" put to the IAA which suggested, in the context of BAK18's claims, that BAK18's role as a captain of the "Cool Boys Tamilander cricket team" in Brisbane which participated in Tamil Eelam cricket competitions in Australia (and had as its team logo a tiger emblem) was not merely evidence of BAK18's involvement in Tamil Eelam cricket in Australia, but was evidence of a factor apparently thought to be important previously in determining whether Australia's protection obligations had been engaged: that is, the extract described as the "Ocean 12 Statement" was said to be evidence capable of supporting a finding, in the context of the overall matrix of fact, that a person might well hold a subjective fear of persecution from Sri Lankan authorities based, in part, upon an association with a Tamil Eelam cricket team, should he (as it is in this case) return to Sri Lanka. In the Ocean 12 Statement, particular reference is made to that applicant's links with, and his team's links with, BAK18 as the captain of the Cool Boys Tamilander cricket team together with photographs of the Ocean 12 applicant and BAK18. 36 The circumstance that such material had contributed towards a finding that Australia's protection obligations had been engaged in respect of the person the subject of that application who, like BAK18, was a captain of a Tamil Eelam cricket team participating in Tamil Eelam cricket competitions (and who on the material had engaged with BAK18) was said to be a circumstance, by reference to the new information, which the IAA was required to take into account in determining whether Australia's protection obligations had been engaged so far as the BAK18 appellants were concerned. 37 In the Federal Circuit Court, the appellants (that is, the BAK18 appellants) sought judicial review of the IAA's decision on seven grounds. However, relevantly for present purposes, the following three grounds are the important grounds. 38 First, that the IAA failed to properly apply s 473DD of the Act when assessing the "new information" put to the IAA concerning the Ocean 12 Statement: ground 1. 39 Second, the IAA's review under s 473CC of the Act miscarried due to the Minister's failure to comply with s 473CB of the Act: ground 2. 40 Third, the IAA unreasonably failed to obtain or consider obtaining the material (described as "further documents and information") relating to the application for a protection visa by BBI18 and BBJ18: ground 3. 41 The primary judge rejected each ground of review holding that there was no jurisdictional error in the IAA's assessment of the "new information"; the Minister's delegate did not fail to comply with s 473CB(1) of the Act by not giving the IAA the material concerning the protection claims of the BBI18 and BBJ18 claimants as part of the review material in reviewing the decision concerning the BAK18 claimants; and, it was not unreasonable for the IAA to not get the material concerning the protection claims of BBI18 and BBJ18, of its own volition. 42 Accordingly, the application before the primary court was dismissed. 43 Division 2 of Part 7AA of the Act is concerned with the referral of fast track reviewable decisions to the IAA. Section 473CA requires the Minister to refer such a decision to the IAA as soon as reasonably practicable after the decision is made. A "fast track reviewable decision" includes a "fast track decision" in relation to a "fast track review applicant". A fast track decision is a decision, relevantly for present purposes, to refuse to grant a protection visa to a fast track applicant: s 473BB, s 5(1). The BAK18 applicants are "fast track applicants": s 5(1). Apart from the s 473CA referral obligation cast on the Minister, s 473CB obliges the Secretary of the Department to give material called the "review material" to the IAA "in respect of each fast track reviewable decision" referred to the IAA under s 473CA. The "review material" is described at s 473CB(1)(a) to (d). Relevantly for present purposes, s 473CB(1)(a) to (c) is in these terms: (a) a statement that: (i) sets out the findings of fact made by the person who made the decision; and (ii) refers to the evidence on which those findings were based; and (iii) gives the reasons for the decision; (b) material provided by the referred applicant to the person making the decision before the decision was made; (c) any other material that is in the Secretary's possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review. … 44 Section 473CB(2) provides that the Secretary must give the "review material" to the IAA at the same time as, or as soon as reasonably practicable after, the decision is referred to the IAA. 45 Section 473CC provides that the IAA must review a fast track reviewable decision referred under s 473CA. 46 Section 473DC is concerned with a discretionary power conferred on the IAA to "get any documents or information (new information)", within the limits of the section. That section is in these terms: 473DC Getting new information (1) Subject to this Part, the [IAA] may, in relation to a fast track decision, get any documents or information (new information) that: (a) were not before the Minister when the Minister made the decision under section 65; and (b) the [IAA] considers may be relevant. (2) The [IAA] does not have a duty to get, request or accept, any new information whether the [IAA] is requested to do so by a referred applicant or by any other person, or in any other circumstances. (3) Without limiting subsection (1), the [IAA] may invite a person, orally or in writing, to give new information: (a) in writing; or (b) at an interview, whether conducted in person, by telephone or in any other way. 47 Section 473DD is concerned with a prohibition cast upon the IAA to consider any new information other than in accordance with the section. Section 473DD is in these terms: 473DD Considering new information in exceptional circumstances For the purposes of making a decision in relation to a fast track reviewable decision, the [IAA] 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. [emphasis added] 48 By the first ground of appeal, the BAK18 appellants say that the "new information" put to the IAA by the appellants is the Ocean 12 Statement which is the extract concerning the Ocean 12 cricket team contained in the submission dated 21 August 2017. The extract relating to the relevant person is identified as the extract at Vol 2 of the BAK18 appeal papers particularly, at pp 353 to 362. As to this material, the BAK18 appellants contended before the IAA that the Authority was "required" to consider BAK18's engagement in the Tamil Eelam Cool Boys cricket team and the significance of that role for BAK18 and his protection claims in light of the significance which was said to have been attached to another claimant's engagement in another Tamil cricket team in attracting, in part at least, protection obligations owed to that other person presumably as matters that were thought to be material in causing that person to hold a well-founded fear of persecution should that person return to Sri Lanka and, in like terms, might reasonably cause BAK18 to hold a well-founded fear of persecution (because of his activity with Tamil political parties in India) should he return to Sri Lanka due, in part at least, to his like role as a captain of a Tamil Eelam cricket team in Australia and one which has a Tamil tiger as its emblem. 49 The IAA understood the contention to be that it must consider the Ocean 12 Statement (extract) because there were, or the IAA ought to be satisfied that there were, "exceptional circumstances" to justify considering the new information thus engaging s 473DD(a) of the Act. The IAA understood the exceptional circumstances to be that the "new information … relates to and has been put forward in support of a claim" (and the reference to a claim is to be understood as a reference to another Safe Haven visa claim where that material was thought to be influential as earlier described). At paras 10 and 13 (dot points 6, 7 and 12) of the decision, the IAA notes that BAK18 put his claim on the footing that he feared harm by Sri Lankan authorities should he return to Sri Lanka due to his father's activities and his own political activism with Tamil political parties in India from 2009 "and cricket in Australia". At para 10, the IAA said this: The applicant put forward his claim to be involved in political activity in India and cricket in Australia and provided substantial documentary evidence to support this to the Minister and as noted below I accept his claims in this regard. As there is already substantial material before me regarding his activities and I have accepted his claims I am not satisfied that there are exceptional circumstances to justify considering the new information. I have also accepted his claim that the applicant's mother was burned by soldiers in Sri Lanka and I am not satisfied that there are exceptional circumstances to justify considering the photograph provided to the IAA. 50 The circumstance that there is already substantial material before the decision-maker "regarding [BAK18's] activities" would not, by itself, exclude the possibility that there are exceptional circumstances to justify considering "new information". Reaching a state of satisfaction for the purposes of s 473DD(a) that there are no exceptional circumstances to justify considering the new information because there is "already substantial material before me", misapplies the statutory test. The decision-maker must ask himself or herself whether he or she can reach a state of satisfaction that there are exceptional circumstances and that those circumstances justify considering the new information. Apart from the state of satisfaction that the IAA must reach as to whether there are exceptional circumstances to justify considering the new information, BAK18 must satisfy the Authority either that, in relation to the new information given to the IAA by BAK18, the information was not, and could not have been, provided to the Minister before the Minister made the decision (by his delegate) under s 65 of the Act to refuse the grant of a Safe Haven visa, or that the new information is credible personal information which was not previously known and, had it been known, may have affected the consideration of BAK18's claims. 51 The question of whether there are exceptional circumstances takes into account all the relevant circumstances in order to enable the IAA to evaluate the relevant factors and characterise those factors as giving rise to exceptional circumstances or not, and some of those factors may include a number of the considerations recited at s 473DD(b)(i) and (ii). 52 At para 10, in relation to BAK18's claims to be involved in political activity in India and cricket in Australia, the decision-maker also says that because "I have accepted his claims I am not satisfied that there are exceptional circumstances to justify considering the new information". Assuming for the moment that there are or might be evident exceptional circumstances, it would be unlikely that those circumstances would "justify" considering new information if the decision-maker has accepted the claims of the applicant. An acceptance of the claims of the applicant would likely make it unnecessary to consider the contended exceptional circumstances because, having accepted the claims of the applicant, irrespective of whether there are exceptional circumstances, those circumstances would not "justify" considering the new information because the question to which the new information might go is, in effect, no longer in issue. 53 The decision-maker's statement that he has accepted the claims of the BAK18 applicants has a number of dimensions to it. Some of the factual claims have been accepted and some have not. Those factual claims that have been accepted have nevertheless not resulted in an acceptance by the IAA of the claims of the BAK18 applicants such that those facts give rise to a state of satisfaction in the IAA that BAK18 holds a well-founded fear of persecution should he return to Sri Lanka or that s 36(2)(aa) is engaged. That follows for the IAA as to s 36(2)(a) of the Act because the decision-maker does not accept that the factual matters accepted by the IAA suggest persecution involving serious harm for the purposes of s 5J of the Act and as to s 36(2)(aa), the decision-maker does not accept that those matters give rise to substantial grounds for believing that, as a necessary and foreseeable consequence of being returned to Sri Lanka, there is a real risk that BAK18 will suffer significant harm. 54 As to the question of BAK18's engagement in Tamil Eelam cricket in Australia, the decision-maker regarded that matter as principally a "sporting and social" matter. At para 22, the IAA said this: Since his arrival in Australia the applicant has been involved with a Tamil cricket team and has shared information on social media about the treatment of Tamils. I note Tamil Eelam Cricket, of which he is a high profile member as a team captain, identifies with the "Tamil homeland" and encourages the sharing of the Tamil language and culture. The letter from the association outlined the coverage the teams and players have received on social and mainstream media and advised that the association has attracted abuse from some who have associated them with the LTTE, and that individual players have also been harassed. However I am not satisfied that such harassment amount[s] to serious harm for the purposes of s.5J of the Act. Nor am I satisfied that the association, or its members, would attract adverse attention from authorities in Sri Lanka or be perceived as Tamil activists; from the letter provided it is evident that Tamil Eelam Cricket is principally a sporting and social entity and that while it associates with the Tamil homeland and the name Tamil Eelam was chosen deliberately, this was done with the "aim of normalising this phrase" and with the hope that "with time [Tamil Eelam] will come to be associated with the geographical location it refers to rather than a politicised concept which rose to prominence during the Sri Lankan Civil War". While such statements may have attracted abuse on social media I am not satisfied that those associated with the organisation or the cricket teams would be perceived as Tamil activists by the authorities in Sri Lanka. As noted the election of the Sirisena government has resulted in a relaxation on restrictions placed by the previous government on Tamil diaspora organisations and events. 55 BAK18's ultimate point is that the Ocean 12 Statement was capable of supporting a finding that another person held a subjective fear of persecution from Sri Lankan authorities based, in part, on an association with BAK18's Tamil Eelam cricket team and "this type of finding" would be at least relevant to the IAA's assessment of BAK18's claims (although the material would not be determinative of the claims). Moreover, the Ocean 12 Statement is said to be capable of supporting a finding that BAK18's Tamil Eelam cricket team was perceived by others as supportive of Tamil Eelam, the LTTE and the notion of a Tamil geographical homeland. BAK18 says that "this type of finding" would be relevant to an assessment by the IAA, on review, of BAK18's claims. BAK18 also notes that the IAA did engage on this issue of the extent to which participants in Tamil Eelam cricket might be thought to be Tamil activists by authorities in Sri Lanka and concluded at para 22, as quoted at [54] of these reasons, that it was not satisfied that such a perception would arise within authorities in Sri Lanka. BAK18 says that the document constituting the new information should have been examined and weighed in the balance and, at the very least, the BAK18 appellants were entitled to have the IAA engage with s 473DD(a) and (b) and determine whether it could be satisfied about the statutory factors rather than expressly not engaging with those factors on the footing that it did not need to do so because it "already had substantial material" regarding BAK18's "activities" and, in any event, his claims had been accepted. I have already addressed some of the difficulties with those two considerations in the IAA putting to one side the contended new information. 56 The BAK18 appellants say that by taking that course, the IAA engaged in jurisdictional error. 57 The Minister says that the description at para 10 of the IAA's decision was simply designed to mention the topic of BAK18's engagement in Tamil Eelam cricket and was not designed to rehearse the facts or the arguments about the topic or documents going to the topic. However, at para 10, the IAA does more than that and expressly explains the two grounds on which it decided that it would not examine the Ocean 12 Statement. 58 The question for the IAA was whether the new information was to be considered, and BAK18's contention about it could only be addressed by engaging with the integers of s 473DD(a) and (b). 59 As to the merits of that material (which is an entirely different question), clearly enough there is nothing in the nature of "similar facts" capable of being engaged by the material and the particular facts which led to findings concerning the captain of the Ocean 12 Tamil Eelam cricket team do not lend probative weight to the matrix of fact relevant to BAK18's circumstances. I have considered the Ocean 12 Statement. The difficulty for the BAK18 appellants on this topic is that, fairly read, the IAA was astute to the contention that BAK18's engagement in Tamil Eelam cricket teams in Australia and particularly the Cool Boys Tamilander cricket team (and its engagement with other Tamil Eelam teams including the Ocean 12 team and its captain) was a circumstance that could give rise to persecution of BAK18 on the ground of his political opinions (about the LTTE or a Tamil identity or Tamil homeland agitated from India and then by engagement in Tamil cricket teams in Australia). However, the IAA was not persuaded that authorities in Sri Lanka would reach the conclusions about BAK18 that such engagement was said to engender: see paras 10 and 22 of the IAA decision. 60 Although I am satisfied that the IAA engaged in jurisdictional error in failing to engage with the integers of s 473DD(a) and (b) in addressing the new information, I am not satisfied that the failure to do so, in the context of the document and the IAA's reasons fairly read, crossed the "threshold of materiality" so as to render the decision invalid: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 ("Hossain"), Kiefel CJ, Gageler and Keane JJ at [28]-[31]; Shrestha v Minister for Immigration and Border Protection [2018] HCA 35; (2018) 264 CLR 151 ("Shrestha"), Kiefel CJ, Gageler and Keane JJ at [1], [10] and [11]; Minister for Immigration v SZMTA (2019) 264 CLR 421 ("SZMTA"), Bell, Gageler and Keane JJ at [44], [45]-[50] and [72]; CNY17 v Minister for Immigration and Border Protection [2019] HCA 50 ("CNY17"), 13 December 2019, Kiefel CJ and Gageler J at [15]. In Hossain, Kiefel CJ, Gageler and Keane JJ at [25] accept the proposition put by Professor Jaffe that jurisdictional error "is an expression not simply of the existence of an error but of the gravity of that error" (original emphasis) with the result that "legal force and effect" is not to be denied to every decision that might be made in breach of a condition required by the statute to be observed in the course of a decision-making process. The statute ordinarily is to be construed as incorporating a threshold of materiality in the event of non-compliance: Hossain at [29]. In Hossain at [31], Kiefel CJ, Gageler and Keane JJ note and affirm the proposition that jurisdictional error "in the sense relevant to the availability of relief under s 75(v) of the Constitution" [emphasis added] in the light of s 474 of the Migration Act, consists of a "material breach" of an express or implied condition of the valid exercise of the decision-making power conferred by the Act. This suggests that the materiality or gravity of the breach goes to whether a remedy lies under s 75(v) of the Constitution. However, in CNY17, Kiefel CJ and Gageler J observe at [15] that where non-compliance with the statutory pre-condition occurs and non-compliance is "immaterial", non-compliance does not render the decision "invalid". In other words, materiality or immateriality goes to validity not just whether a remedy lies. A decision in breach of a statutory pre-condition to the exercise of the power remains valid where the threshold of materiality is not crossed. 61 I am not satisfied that, had the IAA properly engaged with s 473DD of the Act, it would have led to a state of satisfaction in the IAA that would have caused it to consider the new information and, objectively viewed, I am not satisfied that the new information could have had a material effect on the outcome of the IAA's decision. 62 Accordingly, ground 1 of the appeal fails. 63 By ground 2, the BAK18 appellants say that the IAA's statutory duty is to review a fast track reviewable decision referred to it under s 473CA and it must do so "by considering the review material" given to it under s 473CB by the Secretary: s 473DB(1), within the limits set out in the section. Those limits seek to confine, subject to Part 7AA of the Act, the IAA to a consideration of the "review material" in undertaking a review of a referred decision. Those limits are, subject to Part 7AA: "without accepting or requesting new information"; and "without interviewing the referred applicant": s 473DB(1)(a) and (b). 64 The essential contention of the BAK18 appellants is that the IAA's review (s 473CC(1)) of the referred decision miscarried because the IAA was not in a position to review the referred decision "by considering the review material" as not all of the "relevant review material" was referred to the IAA as required by s 473CB(1). Section 473CB(1)(c) (see [43] of these reasons) provides that the "review material" in respect of each fast track reviewable decision referred to the IAA under s 473CA includes (within the exhaustive categories in s 473CB(1)) "any other material that is in the Secretary's possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review". 65 Section 473CB(1)(c) contemplates possession or control and the state of the Secretary's consideration as to relevance at the time of the referral. 66 The BAK18 appellants say that the "material" in the possession or control of the Secretary concerning the claims of BBI18 and BBJ18 (including the Initial Statements) was "plainly relevant" to the review of the decision concerning the BAK18 appellants. As to threshold facts, it was common ground before the primary judge (and the subject of findings) that when the Minister's delegate "Stephen" refused the application of the BAK18 applicants for a Safe Haven visa, the Department had "possession" of "material" concerning the claims of the BBI18 and BBJ18 applicants (including the Initial Statements), and in deciding the application of the BAK18 appellants, the delegate did not consider any of that material. Further, when delegate "Stephen" referred his decision concerning the BAK18 appellants to the IAA, he did not give the IAA the material concerning the application and claims made by BBI18 and BBJ18. 67 On the question of "relevance", the appellants say these things. The delegate who conducted the interview with BAK18 (a delegate called "Rob") told him that the claims of the BAK18 applicants would be considered together with the claims of the BBI18 and BBJ18 applicants as members of the same family unit. The IAA notes that this "may have raised some expectations that were not met": IAA, para 6; [12] of these reasons. Whatever the legal characterisation of such a representation by the delegate might be, along with any "expectation" so engendered, the BAK18 appellants say that delegate "Rob" plainly thought that the material concerning the BBI18 and BBJ18 applicants was relevant or very likely to be relevant (at least at that point in time) to a consideration of the claims of the BAK18 applicants on the express footing that all of the claimants were (and are) members of the same family unit (who had all arrived together on the same boat as unauthorised maritime arrivals). 68 The BAK18 appellants say that delegate "Stephen" decided both the application by the BAK18 applicants and the application by the BBI18 and BBJ18 applicants although each application was decided separately. The BAK18 appellants say that delegate "Stephen" must have been aware or ought to be taken to have been aware (by reason of the availability of the audio-recording of the interviews conducted by "Rob" with BAK18) that BAK18 had been told that the claims of all family members would be considered together. They say that delegate "Stephen" took no step to depart from the position put by delegate "Rob" to BAK18 (thus giving rise to the understanding or expectation residing in BAK18) that the application of the BAK18 applicants would be considered together with the claims of the BBI18 and BBJ18 applicant family members. 69 The BAK18 appellants say that it follows that an inference arises that at the time of the consideration of the application by the BAK18 appellants by "Stephen" and at the time of the decision, the material concerning the BBI18 and BBJ18 appellants was thought to be "relevant" to the application by the BAK18 appellants. They say that the state of relevance endured at the moment in time that delegate "Stephen" elected (almost immediately upon making the decision) to refer his refusal decision to the IAA for review and, in doing so, he was standing in the shoes of the Secretary. 70 Apart from the notion that delegate "Rob" thought that both applications ought to be considered and decided together as all applicants were members of a "family unit", and delegate "Stephen" did not tell BAK18 that a different approach would be or had been adopted, the BAK18 appellants say that the "material" concerning the applications of the BBI18 and BBJ18 applicants was "plainly relevant" to the review of the decision to refuse the BAK18 applicants a Safe Haven visa because that material was capable of having probative value, one way or the other, as to whether the IAA should, or should not, affirm the refusal decision under review. The BAK18 applicants say that the material exhibited probative value going to a review of the decision by the IAA because the material concerns claims for protection arising out of the same matrix or overlapping matrices of facts and circumstances giving rise to the claims of the BAK18 applicants. 71 The BAK18 appellants say that the details of BBI18's claim regarding his detention in 2012 and having been seen publicly holding an LTTE flag were relevant to the IAA's assessment of whether the BAK18 appellants were at greater risk of an "imputed profile" by virtue of an association with BBI18. The BAK18 appellants say that no delegate, acting reasonably, could have formed the view that the material was "not relevant" to a review by the IAA of the referred decision. 72 The Minister says that there was no failure on the part of the Secretary to refer review material to the IAA as required by s 473CB(1)(c). The Minister says that follows because the BAK18 claimants had "plenty of opportunity" to put the material relating to BBI18 and BBJ18 before the delegate prior to the delegate's decision and they failed to do so. The Minister says that the BAK18 claimants had been told, before the delegate's decision was reached, that they needed to put all of the information upon which they were relying in relation to the Safe Haven visa application to the delegate and that if they failed to do so they might not have another chance to do so after an adverse decision was reached. The Minister says that the material that the BAK18 appellants now seek to rely upon was "for whatever reason" not put before the Minister or the delegate. The Minister also says that the scheme of the Act is that decisions made under s 65 of the Act are made based on information before the Minister or the delegate and that reviews under Part 7AA are intended to be "quick and fast" and to provide "limited avenues for consideration of new information". The Minister says that the material relating to the BBI18 and BBJ18 appellants was "simply not relevant to the review". The Minister acknowledges that the comments described earlier in these reasons were made by delegate "Rob" to BAK18 but says that the comments "were not unambiguous". The Minister also says that even if there has been a failure by the Secretary to comply with s 473CB(1)(c), the failure to comply with that provision of the Act was not material because it could not have made a difference to the outcome. 73 Although the scheme of the Act seeks to confine the scope of the material to be considered by the IAA in conducting a review of a referred decision and contains particular proscriptions about when new information might be considered, s 473CB(1) identifies review material which must be provided by the Secretary to the IAA. The IAA is required to conduct a review of a referred decision by considering the review material. Although the Minister says that the BAK18 claimants had "plenty of opportunity" to put material relating to the BBI18 and BBJ18 claimants before the delegate making the decision in relation to the application by the BAK18 claimants, there is a very good reason why the BAK18 claimants did not take that course. Those claimants had been told by delegate "Rob" that the claims of BAK18, his wife and his two children would be considered together with the claims made by BAK18's brother, BBI18 and the mother of the two sons, BBJ18. BAK18 was told that the claims would be considered together because the claimants were all members of a family unit: a mother, two sons, a daughter-in-law and two children who are the grandchildren of BBJ18. At no point was BAK18 told that there had been any change to that position. 74 The Minister says that "for whatever reason", the material concerning the BBI18 and BBJ18 applicants was not put before the Minister or his delegate. However, there is no need to speculate about the reason why the BAK18 applicants did not take the step of putting the BBI18 and BBJ18 material before the delegate. BAK18 had been told that the applications for Safe Haven visas lodged by the BAK18 applicants and the BBI18 applicants would be heard together as members of a family unit and thus the claims of each of the applicants would be considered together. Once BAK18 was told by the Minister's delegate that his claims for a Safe Haven visa (on his own behalf and on behalf of his dependents) would be considered together with the claims of his brother and mother as members of a family unit, and correspondingly the claims of his brother and mother would be considered together with the claims of the BAK18 applicants, the BAK18 applicants acted upon that advice or statement in relation to their applications. That statement having been made to BAK18 by a delegate of the Minister, can there be any doubt or surprise that BAK18, as the eldest brother, would have spoken with his younger brother and mother about how he now understood the Executive Government of the Commonwealth proposed to consider the applications of something as important to them as applications for Safe Haven visas? Apart from the circumstances going to the claims of the two brothers, this must have been especially true for someone in the position of the mother (of the two brothers) who, in 1990, before fleeing to India to escape brutality had been harassed and pushed by soldiers (of either the Sri Lankan army or the IPKF or both) causing a miscarriage and who had then been raped by army soldiers and inflicted with burns (that is, set alight), as the IAA accepted. 75 The statement by delegate "Rob" not only conditioned the response of the BAK18 applicants (and the BBI18 applicants) in terms of their understanding of the need or otherwise to reciprocally lodge in each application material lodged in the other, it also suggests that delegate "Rob" regarded the circumstances of the BAK18 applicants and the BBI18 applicants as having practical inter-dependence, that is, relevance to each other. 76 I accept that the claims made by the BBI18 and BBJ18 applicants and the contextual historical facts out of which those claims emerge, as reflected in the summary at para 13 of the IAA's reasons for decision, have an inter-dependence with the claims and factual circumstances concerning their family members reflected in the claims of the BAK18 applicants. 77 I am satisfied that the Secretary was in possession of material relevant to the claims of the BAK18 applicants (that is, the material lodged by the BBI18 claimants) when delegate "Stephen" decided the application made by the BAK18 applicants. Delegate "Rob" had caused the BAK18 applicants to reach the understanding already described and I am satisfied that BAK18, BBI18 and BBJ18 acted on that understanding. However, at the time of the decision by delegate "Stephen" to refuse the grant of a Safe Haven visa to the BAK18 applicants, did the Secretary consider the BBI18 and BBJ18 material "to be relevant" to the review of the BAK18 refusal decision? 78 At one level, the disaggregation of the consideration of the two applications (so that the claims of the family unit were no longer to be considered together), suggests that delegate Stephen did not consider the material going to the claims of the BBI18 and BBJ18 applicants as "relevant" to the claims of the BAK18 applicants and vice versa. However, two things should be noted. First, delegate Stephen mentions in his "Protection Visa Decision Record", although only briefly in his summary of the claims of the BAK18 applicants, some aspects of the treatment by the military of BAK18's father and the assault by the military upon BAK18's mother. Second, it is readily apparent that many aspects of the claims of the BBI18 and BBJ18 claimants are recited in the IAA's summary of the claims made by the BAK18 applicants in the IAA's reasons for decision in undertaking the statutory review function concerning the review of the delegate's referral decision concerning the BAK18 applicants. In that review, the IAA was not, of course, undertaking a review of the delegate's refusal decision concerning the BBI18 applicants. 79 I am satisfied that there is a basis for concluding that the claims or circumstances of BK18's younger brother and mother were sufficiently worth mentioning and thus inter-dependent and relevant to the BAK18 decision and clearly the IAA, in undertaking its review of the BAK18 decision, extensively mentions facts, circumstances and claims made by the BBI18 and BBJ18 applicants. 80 I am satisfied that there is a sufficient basis for concluding that the claims of the BBI18 and BBJ18 applicants remained relevant (consistent with the inter-dependence adopted by delegate "Rob") at the date of the decision by the delegate "Stephen", that is to say, were considered to be relevant. The material relating to those claims in the possession of the Secretary was thus relevant to the BAK18 decision and the IAA's review of it. The extensive references by the IAA to the claims of the BBI18 and BBJ18 applicants in the review of the BAK18 referral decision demonstrates the degree of relevance between the claims of the family members, at least so far as the IAA was concerned. 81 I am satisfied that the review material concerning the referral of the BAK18 refusal decision to the IAA included the material in the Secretary's possession going to the claims of the BBI18 and BBJ18 applicants which, at the time of the referral of the refusal decision to the IAA, was considered to be relevant. For that purpose, delegate "Stephen" was standing in the shoes of the Secretary. 82 The IAA observes that delegate "Rob's" observations may have raised some "expectations" that were not met. Had the Minister's delegate considered the claims of all applicants as part of a family unit, consistent with the statements made to BAK18, all material relating to all claims of the family members would have been before the decision-maker. That material would have been referred to the IAA in undertaking a review of the referred refusal decision concerning the BAK18 applicants and all material would have been referred to the IAA in undertaking a review of the referred refusal decision concerning the BBI18 and BBJ18 applicants. For some reason, the delegate chose to disaggregate the family unit and treat the applications as entirely separate applications as if the applicants were not members of a family unit. Fundamentally, this caused the assessment of the claims of the respective applicants to miscarry and it caused the IAA not to be presented with all of the material which would have enabled it to undertake a review of the refusal decision and determine whether the refusal decision should be affirmed or not. The circumstance that the claims of all family members were not considered together does not, by reason of segmentation and differentiation, mean that the Secretary was not in possession of material relevant to a review of the refusal decision concerning the BAK18 applicants and correspondingly in possession of material relevant to a review of the refusal decision concerning the BBI18 and BBJ18 applicants. 83 It is not possible to say whether the failure to refer the BBI18 and BBJ18 material to the IAA as part of the review material to be considered by the IAA in discharging its review function made no difference to the review of the referral decision concerning the BAK18 applicants. The contentions in the BBI18 material might or might not have made a difference. It is simply not possible to say and it follows that it is not possible to say that the failure to comply with s 473CB(1)(c) was "not material" or that "it could not have made a difference" in the sense those notions are understood in Hossain, Shrestha, SZMTA and CNY17: see [60] of these reasons. 84 Accordingly, the primary judge fell into error in failing to find jurisdictional error on the part of the IAA in the discharge of its review function due to the failure on the part of the Secretary to refer review material falling within the scope of s 473CB(1)(c) of the Act to the IAA in conducting a review of the delegate's decision to refuse a Safe Haven visa to the BAK18 applicants. 85 Accordingly, the decision of the primary judge must be set aside and the matter remitted to the IAA for further consideration of the BAK18 refusal decision having regard to the material concerning the BBI18 claimants as part of the "review material" relating to a review of the BAK18 refusal decision. 86 It is not necessary to consider ground 3 of the appeal to this Court. I certify that the preceding eighty-six (86) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.