What happened
The first respondent, who was born in Iraq but claims Iranian citizenship by descent and identifies as a Sabean-Mandaean Arab from the Ahwaz province, lodged an application for a protection visa on 13 August 2015. He claimed to fear persecution in Iran on the basis of his religion and ethnicity. On 17 February 2016 a delegate of the Minister refused the visa and the matter was automatically referred to the Immigration Assessment Authority (IAA) under Pt 7AA of the Migration Act 1958 (Cth). Among the review material provided under s 473CB was a certificate purportedly issued under s 473GB(5) that post-dated the delegate's decision.
The IAA accepted that Sabean-Mandaeans face intensifying official harassment and that Arabs in Iran suffer a high level of societal discrimination. It further accepted that the risk of violence increases dramatically for those who publicly assert cultural or political rights. Nevertheless, the IAA was not satisfied that the first respondent faced a real chance of serious harm for the purposes of s 36(2)(a) or a real risk of significant harm for the purposes of s 36(2)(aa). Central to its reasoning, set out at [28]-[30] and [36], was the finding that the first respondent had not practised his religion regularly in Iran or Australia, was not a prominent community member, and would not become politically active on return. At [51]-[52] the IAA concluded that the cumulative discriminatory treatment did not meet the thresholds for torture, cruel or inhuman treatment, degrading treatment or arbitrary deprivation of life.
The first respondent had sought to provide the IAA with new information on 23 March 2016. This included a statutory declaration and supporting letter from the Arab Front for the Liberation of Ahwaz (AFLA) disclosing that he had been a clandestine member since age 18, had filmed victims of persecution, had participated in demonstrations in Sydney after arrival, and had played for a football team whose logo was regarded as treasonous in Iran. The IAA summarised this at [8] and at [9] refused to consider it. The IAA noted the numerous occasions on which the first respondent had confirmed that his claims were complete and concluded that, because he had given no explanation for the delay in providing the information, there were no exceptional circumstances under s 473DD.
The first respondent commenced judicial review in the Federal Circuit Court of Australia (FCCA). His amended application raised two grounds: misapplication of the real chance and real risk tests, and reliance on an invalid s 473GB certificate. The primary judge rejected most of the first ground but upheld an aspect of it relating to complementary protection. At [75] his Honour held that the IAA's finding that the first respondent would not assert political, economic or cultural rights was not a complete answer; the IAA was required to consider whether the Iranian state's denial of ICCPR rights meant that the very act of asserting those rights would expose him to significant harm, and whether his non-exercise of the rights was caused by that risk. The primary judge found it unnecessary to decide the second ground but indicated that MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081; 243 FCR 1 did not apply because of the different statutory regime in Pt 7AA, particularly s 473DA.
The Minister appealed on two grounds: procedural unfairness in the FCCA and error in the approach to s 36(2)(aa). The first respondent filed a notice of contention ultimately raising three grounds: misapplication of the real chance test and failure to apply S395 principles, reliance on an invalid s 473GB certificate or denial of procedural fairness, and misconstruction of "exceptional circumstances" in s 473DD relying on BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958. After a hearing on 21 September 2017 the Full Court (Kenny, Tracey and Griffiths JJ) delivered judgment on 10 November 2017. The Court allowed the Minister's appeal, upheld the notice of contention in part, and ordered the parties to agree or make submissions on final orders including costs. The practical effect is that the IAA decision is set aside and the review is remitted to the IAA to be determined according to law, with particular attention to the proper application of S395 and s 473DD.
Why the court decided this way
The Full Court began by summarising the Pt 7AA scheme at [30], emphasising that s 473DA(1) states that Div 3 together with ss 473GA and 473GB is an exhaustive statement of the natural justice hearing rule. This exhaustive character was central to its rejection of the notice of contention grounds concerning the s 473GB certificate. The Court held at [33] that the Minister had been denied procedural fairness in the FCCA because the "Dispositive Issue" concerning ICCPR rights had not been raised in the application, submissions or orally. Paragraph [17] of the first respondent's FCCA submissions, which referred to the IAA not considering why the applicant might not become politically active, did not sufficiently raise the ICCPR point. The Minister had been deprived of the chance to cite MZYYL and SZSWB. Because the first respondent did not demonstrate that remittal would be futile, the appeal had to succeed on this ground alone.
On the substantive error alleged in the appeal, the Court at [44]-[50] held that the primary judge's reasoning at [75] was inconsistent with binding authority. The Court quoted extensively from SZTAL at [14] on the contemporary approach to statutory construction and from MZYYL at [18]-[20] to the effect that the complementary protection regime is a code whose definitions differ from those in the ICCPR and CAT. The plurality in SZTAL had made clear that where words are taken from a treaty the court must still begin with the statute; the ICCPR is not incorporated in its entirety. The primary judge's requirement that the IAA undertake a "dual consideration" of ICCPR breaches and causation of modified behaviour therefore misapplied the statute. The Court noted at [50] that different considerations might arise for a s 36(2)(a) claim, thereby foreshadowing its acceptance of the notice of contention on that issue.
Turning to the notice of contention, the Court at [79]-[83] accepted that the IAA had failed to apply the principles in S395. It set out at [81] the key IAA findings that the first respondent did not have a prominent profile and would not change his behaviour. Those findings, combined with the country information that risk "increases dramatically" for those who assert rights, squarely raised the question whether the first respondent's low profile was itself the product of fear of the harm the IAA had accepted existed for more active individuals. Quoting McHugh and Kirby JJ in S395 at [43], the Court held that the IAA's failure to inquire into the reason for modified conduct involved jurisdictional error. The Court found it unnecessary to deal with the other alleged errors in the real chance assessment.
On the s 473GB ground the Court at [88]-[101] carefully distinguished MZAFZ. It explained that in Pt 7AA the certificate and related material are review material under s 473CB(1)(c) and are not "new information" within Subdiv C. Section 473GB(3) gives the IAA two separate discretions: to have regard to the material and, if appropriate having regard to any Secretary's advice, to disclose it. Because s 473DA makes the statutory provisions exhaustive of natural justice, the mere fact that the IAA may have had regard to an invalid certificate does not automatically vitiate the review in the same way as under Pt 7. The Court described the Pt 7AA scheme as "remarkable" at [98] but held that it was the scheme Parliament had enacted. The ground was therefore rejected.
Finally, on s 473DD the Court at [102]-[115] expressly agreed with White J in BVZ16. It held that "exceptional circumstances" requires a broad inquiry into all relevant circumstances and that the matters in s 473DD(b) can inform the assessment under (a). The IAA's paragraph [9] was read fairly (citing Wu Shan Liang) as resting on the absence of any explanation for delay. The Court pointed out that the statutory declaration and AFLA letter provided a clear security-based explanation for non-disclosure, yet the IAA made no reference to that material. This was both a misconstruction of the provision and a constructive failure to exercise jurisdiction by failing to take account of relevant material. The Court left open whether the new information might ultimately be considered "new information" or review material but held that the IAA must reconsider the s 473DD question on a correct understanding of the law. These errors were sufficient to uphold the notice of contention in part and require remittal.
Before and after state of the law
Prior to this judgment the law on complementary protection was settled by MZYYL, SZSWB and the Full Court's own earlier decision in SZTAL (FCAFC). Those authorities established that ss 36(2)(aa), 36(2A) and 5(1) create an exhaustive domestic code. While the provisions were enacted to implement aspects of the CAT and ICCPR, Parliament had deliberately chosen different language and had not incorporated the treaties in their entirety. The High Court's subsequent decision in SZTAL (HCA) reinforced that construction begins with the statutory text.
The law on modified conduct was governed by S395, which had been applied in countless refugee cases but whose application to complementary protection had been left open. NABE had clarified the obligation to consider claims arising squarely on the material. In the fast-track context, BVZ16 had recently held that "exceptional circumstances" in s 473DD could not be read as turning solely on the absence of an explanation for delay. MZAFZ had established that an invalid public interest immunity certificate under s 375A produced jurisdictional error because it infected the procedural fairness obligations under Pt 7.
After this judgment the position is clearer in several respects. First, a judge conducting judicial review of an IAA decision may not introduce an ICCPR analysis that was not advanced by the applicant without affording the Minister an opportunity to be heard; failure to do so will constitute procedural unfairness. Second, the ICCPR is not to be used as a free-standing standard by which to measure whether a risk of harm arising from modified behaviour meets the s 36(2)(aa) threshold; the statute's own definitions of significant harm control. Third, S395 reasoning applies with full force to IAA reviews under s 36(2)(a) whenever the tribunal's own findings show that a low-profile applicant would face dramatically increased risk if he or she were to become more active. Fourth, when an IAA decision-maker is considering new information under s 473DD, a narrow focus on the lack of an explanation for delay, to the exclusion of any explanation for earlier non-disclosure or the significance of the information itself, will be a jurisdictional error. Fifth, the different architecture of Pt 7AA means that an invalid s 473GB certificate does not automatically vitiate a review in the manner described in MZAFZ; the IAA's discretionary powers under s 473GB(3) are to be exercised according to the statute and the exhaustive natural justice rule in s 473DA.
The judgment also confirms that s 473DA(1) is not limited by the words "in relation to the matters they deal with" that appeared in the former s 422B, reinforcing the breadth of the exhaustive statement.
Key passages with plain-English translation
Paragraph [33]: "The Minister's claim that he was denied procedural fairness should be accepted. We find that the Dispositive Issue was not raised by anyone prior to the FCCA publishing its reasons for judgment. Accordingly, the Minister was denied an opportunity to address the Dispositive Issue."
Plain English: The judge surprised everyone by deciding the case on a legal argument about the ICCPR that no one had mentioned. That was unfair to the Minister, so the appeal must succeed on that point alone.
Paragraph [50]: "in our respectful view, the primary judge erred in the emphasis he gave to the ICCPR in [75] of his Honour's reasons for judgment. It is important to note that this paragraph was primarily directed to the first respondent's claim for complementary protection. Different considerations arise in respect of his claim for protection under s 36(2)(a)..."
Plain English: The judge went too far in treating the ICCPR as the main yardstick for the complementary protection claim. The Act's own words come first. The Court leaves open that the ICCPR might matter differently for a straight refugee claim.
Paragraph [82]: "Having regard to these findings by the IAA (which did not depend on any of the new information which was discarded by the IAA), in the light of S395 the IAA should have asked why the first respondent had not in the past practised his religion more extensively or been more politically active and, moreover, why he would not alter his past behaviour if he were returned to Iran."
Plain English: Once the IAA accepted that active people face much worse harm, it had to ask whether the only reason this man stayed quiet was that he was scared of exactly that harm. Failing to ask that question was a legal mistake.
Paragraph [9] of the IAA reasons (quoted and criticised at [108]-[112]): "The applicant has not provided any explanation as to why the information could not have been provided earlier. I am not satisfied there are exceptional circumstances to justify considering the new information provided by the applicant."
Plain English: The IAA said, in effect, "you had lots of chances to tell us this before, you didn't explain why you waited, so I'm not looking at it." The Full Court held that this treated one factor as decisive and ignored the security explanation the man had actually given.
Paragraph [112]: "we consider that the IAA made a similar error to that which was identified in BVZ16... That reflects a misconstruction and misapplication of s 473DD."
Plain English: The IAA read the words "exceptional circumstances" too narrowly. The law requires it to look at everything relevant, including the man's explanation that revealing his political ties earlier could have endangered his family in Iran.
What fact patterns trigger this precedent
This judgment will be triggered whenever an IAA decision under Pt 7AA involves a protection claimant who has a low religious or political profile but country information indicates that more active or prominent persons with the same characteristics face a dramatically increased risk of harm. In such cases the IAA must expressly consider whether the claimant's past inactivity or low profile is itself the product of fear of that harm.
The decision is also engaged whenever an applicant provides the IAA with information after the delegate's decision and includes any explanation, however brief, for why the information was not given earlier. If the IAA focuses only on the absence of an explanation for delay and does not refer to the substance of any security or other reason for earlier non-disclosure, the decision is liable to be set aside for misconstruction of s 473DD.
The procedural fairness aspect is engaged in any judicial review proceeding, whether in the FCCA or this Court, where the judge or tribunal member proposes to decide the matter on a legal proposition (particularly one involving unincorporated international instruments) that has not been squarely raised by the parties. The Minister must be given an opportunity to address authorities that emphasise the primacy of the statutory text.
The distinction drawn between Pt 7 and Pt 7AA certificate cases will apply whenever a challenge is brought to an IAA decision that may have had regard to a s 473GB certificate or related material. The mere invalidity of the certificate will not, without more, constitute jurisdictional error.
How later courts have treated it
The judgment itself treats earlier authorities in a particular way that later courts must now follow. It applies S395 at [82] to the IAA context without hesitation, thereby confirming that the High Court's reasoning is not confined to Refugee Review Tribunal decisions. It follows MZYYL, SZSWB and SZTAL at [46]-[49] for the proposition that the complementary protection provisions are a code that does not import the full text or jurisprudence of the ICCPR. It follows BVZ16 at [102] on the broad construction of exceptional circumstances and expressly approves White J's reasoning that the paragraphs of s 473DD overlap and that all relevant circumstances must be considered.
The judgment distinguishes MZAFZ at [88]-[99] on the basis of the materially different language of s 473DA compared with the former s 422B. Later courts applying this decision will therefore start from the premise that the exhaustive statement in s 473DA limits the procedural fairness consequences that can flow from an invalid s 473GB certificate. The Court also cites Farah Constructions and Shrestha for the uncontroversial but important proposition that deciding a case on an unraised point is procedurally unfair.
Because the judgment is itself a recent Full Court authority, it does not discuss its own subsequent treatment. However, the detailed consideration given to the interaction between the S395 line of authority and the new fast-track regime, and the careful statutory construction exercise concerning s 473DD and s 473GB, indicate that the decision is intended to provide authoritative guidance on the limits of IAA decision-making in circumstances that arise frequently in fast-track reviews.
Still-open questions
The Court expressly left open at [51] and [115] what the IAA will ultimately decide on remittal once it reconsiders the new information under a correct understanding of s 473DD. It did not decide whether the migration agent's submission and statutory declaration could properly be characterised as "new information" or whether some of it might instead form part of the review material under s 473CB.
The Court noted at [100] that nothing in its reasons should be taken as suggesting that the bias limb of procedural fairness is excluded by s 473DA. It left for another day the question whether a referred applicant who somehow learns of an invalid s 473GB certificate that the IAA has considered without disclosure might still mount a successful judicial review application on bias or unreasonableness grounds.
The precise boundaries of the discretion in s 473GB(3) remain to be explored. The Court described the scheme as "remarkable" at [98] but did not decide whether, in an extreme case, the IAA's refusal to disclose highly probative favourable material could amount to legal unreasonableness. Nor did the Court decide whether the obligation to give a s 473GD direction when disclosure occurs carries with it any further procedural fairness consequences.
The relationship between the real chance test under s 5J(1)(b) for refugee claims and the real risk test under s 36(2)(aa) for complementary protection was not fully explored because the Court found it unnecessary to deal with all grounds once the S395 error was established. Whether the modification-of-behaviour reasoning from S395 can ever apply to a complementary protection claim therefore remains unanswered.
Finally, the Court did not resolve the first respondent's contention that the IAA had relied on an irrelevant consideration when it used the applicant's low level of religious practice both to assess the risk and to infer he would not become politically active. That ground was left undecided at [84]. These open questions will require resolution in future fast-track litigation.