ABD18 v Minister for Home Affairs

[2019] FCCA 3012

FEDERAL CIRCUIT COURT OF AUSTRALIA

ABD18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 3012

Catchwords:
MIGRATION – Safe Haven Enterprise visa – decision of the Immigration Assessment Authority – where the Authority categorised new information as a new claim – whether the Authority erred in its consideration of “exceptional circumstances” – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), pt.7AA, ss.46A, 65, 473CA, 473CB, 473DD, 473EA

Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth)

Cases cited:

ABD18 v Minister for Immigration & Anor [2018] FCCA 3378

AYK17 v Minister for Immigration & Border Protection [2019] FCA 1053
CMY17 v Minister for Immigration & Border Protection [2018] FCA 1333
DFP16 v Minister for Immigration & Border Protection [2018] FCA 1901
Minister for Immigration & Border Protection v CLV16 [2018] FCAFC 80

Applicant: ABD18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 41 of 2019

Judgment of: Judge Kendall

Hearing date: 31 July 2019

Date of Last Submission: 31 July 2019

Delivered at: Perth

Delivered on: 23 October 2019

REPRESENTATION

Counsel for the Applicant: Mr M Guo

Solicitors for the Applicant: Estrin Saul Lawyers

Counsel for the First Respondent: Ms A Ladhams

Second Respondent: Submitting appearance, save as to costs

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application for judicial review be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 41 of 2019

ABD18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for judicial review of a decision of the Immigration Assessment Authority (the “IAA”) dated 6 February 2019.

2. The IAA’s decision affirmed a decision of a delegate of the then Minister of Immigration and Border Protection (the “Minister”) to refuse to grant the applicant a Safe Haven Enterprise visa (the “visa”) under s.65 of the Migration Act 1958 (Cth) (the “Act”).

3. It is uncontroversial that in order to obtain relief in this Court, the applicant must establish that the IAA has fallen into jurisdictional error.

Background

1. This matter has previously been before this Court. On that occasion, the Court found that a previous decision of the IAA was affected by jurisdictional error.  The decision was, accordingly, remitted for re-hearing: ABD18 v Minister for Immigration & Anor [2018] FCCA 3378 (“ABD18 No.1”).

2. The history of the matter was set out in extensive detail in the Court’s previous judgment in ABD18 No.1. For present purposes, and in light of the confined nature of the sole ground of review before the Court (discussed below), the Court adopts the background provided in the Minister’s submissions (dated 26 July 2019) at [3]-[12]. This summary was not in dispute. The Court has cross-checked all references contained in that summary and has analysed the materials contained in the 296 page Court Book (“CB”) before the Court. The summary provided is accurate. The Court also adopts [4] in the applicant’s written submission and has incorporated it into the summary that follows. But for minor additions below, the relevant summaries provide as follows.

3. The applicant is a citizen of Afghanistan who arrived in Australia at Christmas Island on 21 April 2013 by sea as an unauthorised maritime arrival (CB 7).

4. By letter dated 2 May 2016, the applicant was advised that the Minister had exercised his power under s.46A(2) of the Act to allow him to lodge a valid application for the visa (CB 30-31).

5. On 10 November 2016, the applicant lodged an application for the visa (CB 36-93). The applicant claimed to fear serious harm on the basis of being a Shia Hazara. He also claimed that the Taliban suspected that he was working with a Non-Government Organisation (an “NGO”), based on an incident in December 2012 when, the applicant claimed, he was driving his truck filled with construction materials for some time behind an American Army convoy. The applicant claimed that when he stopped for the night the Taliban came searching for the owner of his truck and took the truck. The applicant claimed that one week after this occurred, the Taliban searched for him in his home village and, when they could not find him, they burned down his home (CB 82-85).

6. On 20 January 2017, the applicant attended an interview with a Ministerial delegate to discuss his visa application and his claims that he was a person in respect of whom Australia has protection obligations (CB 107-126). The applicant’s migration agent provided a post interview submission on 2 February 2017 (CB 151-172).

7. On 14 March 2017, the delegate made a decision refusing to grant the applicant the visa (CB 174). An extensive outline of the delegate’s decision is found in [11]-[16] of ABD18 No.1.

8. On 21 March 2017, the matter was referred to the IAA for review in accordance with s.473CA of the Act (CB 196).

9. On 11 April 2017, the applicant’s migration agent provided a submission to the IAA which included new information (CB 212-219).

10. On 18 December 2017, the IAA affirmed the delegate’s decision not to grant the applicant the visa (CB 226-246). That decision was the subject of the Court’s determination in ABD18 No.1.  Ultimately, the Court remitted the matter to the IAA for reconsideration (CB 247).

11. On 11 January 2019, the applicant’s migration agent provided a further submission to the IAA titled ‘Written Submission to the Immigration Assessment Authority’ (CB 253-265).

12. Paragraph [7] in that submission is relevant to the issues that need to be canvassed in this judgment (discussed below). That paragraph provides:

    7. Furthermore, the IAA should find that the Applicant faces a real risk of significant harm when attempting to reach his home region and/or when seeking to access essential health and other services not available to him in his home region of Malistan. Given that the Applicant has been assessed by the Department as being extremely vulnerable, it is probable that he will need to seek assistance from health and other services unavailable in his remote rural home region. The risk of harm he would face in attempting to travel by road in Ghazni is very real. …

13. This paragraph then refers to various sources of country information.

14. The IAA dealt with this paragraph at CB 273-274 at [14]-[15] of its reasons, as follows:

    14. The 2019 submission claims that “it is probable” that the applicant will need to access health services, and that such services may not be available in Malistan. The submission notes that the applicant was referred to the Primary Application and Information Service (PAIS) for assistance and that this means the applicant was assessed as being “extremely vulnerable”. The applicant did not raise this claim before the delegate and neither do I consider that it arose on the material. While an otherwise unarticulated claim may arise on the information before a decision maker, there needs to be some evidence or material suggestive of the existence of each element of the claim to be considered. A fear of persecution or significant harm is an essential factual element of claims for protection and if this does not arise on the material before a decision maker, a relevant claim based on these fears does not arise (referencing EXV17 v MHA [2018] FCA 1780 as footnote 1). Although the applicant asked at the interview that his mental health “be taken into consideration” he did not claim to have any diagnosed mental health conditions, to require treatment or care, or to fear harm from accessing or denial of access to care in Afghanistan. The applicant did not indicate any fear of persecution or other harm in respect to this claim and I am satisfied that it did not otherwise arise and as such is new information.

    15. There is no information before me identifying the reason(s) that the applicant was deemed eligible for PAIS assistance, or that the invitation related to any medical or mental health concerns. The applicant, having accepted the PAIS assistance, was assisted by a migration agent to prepare the application and at the interview. Although the applicant asked at the interview that his mental health “be taken into consideration”, he did not provide any evidence in his application, at the interview or in his IAA submission that he has been assessed by a medical practitioner, diagnosed with any condition, or that he is on any treatment plan or medication. He has not provided any evidence that his physical or mental health precludes him from any work or has impacted on his ability to find and maintain work. Apart from his claim to suffer tension, sleep problems and some forgetfulness, he has not provided any evidence that his lifestyle in Australia has been, or is being affected by medical or mental health issues. I also consider relevant the Full Court of the Federal Court of Australia finding that exposing the IAA to the prospect of receiving an ever-changing or continually emerging factual account of the claims for protection being advanced would run counter to the legislative objective of “fast track” decision making (referencing MIBP v CLV16 [2018] 80 as footnote 2). Having regard to all of the above, I am not satisfied that there are exceptional circumstances to justify considering this new information.

    (Citations omitted)

15. On 6 February 2019, the IAA again affirmed the delegate’s decision not to grant the applicant the visa (CB 271-291).

16. On 17 July 2019, the applicant filed an application for judicial review in this Court.  That application contained one ground of review, which states:

    1. The Immigration Assessment Authority (IAA) erred by finding that there were no exceptional circumstances to justify the consideration of the new information that the Applicant may need to travel outside of Malistan.

    Particulars

    a. At [14] the IAA identified the new information amounted to a new claim.

    b. At [15] the IAA concluded that there were no exceptional circumstances to justify the consideration of the new information, but only by:

    i.      referring to the lack of evidence of certain matters as the IAA considered would have related to the new information; and

    ii.      referring to dicta that ‘exposing the IAA to the prospect of receiving and ever-changing or continually emerging factual account of the claims for protection being advanced would run counter to the legislative object of “fast track” decision making’.

    c. In doing so, the IAA:

    i.      adopted an unduly narrow view of what may constitute exceptional circumstances by failing to appreciate the significance of its own finding that the new information was a new claim; and

    ii.          misunderstood the law in applying the dicta, because the dicta was irrelevant to the issue;

    iii.     misunderstood the new information as an ‘ever-changing or continually emerging factual account’ rather than as a claim in its own right.

17. On the basis of the above, the core issue before this Court is whether the IAA erred in its approach to ‘exceptional circumstances’ as provided in s.473DD of the Act.

18. The only materials in evidence before the Court were those provided in the Court Book (“CB”) (marked as Exhibit 1). The applicant provided written submissions on 17 July 2019. The Minister provided written submissions in response on 26 July 2019.

19. On 31 July 2019, the matter came on for hearing. The Court has had regard to the transcript of the hearing in writing this judgment. 

20. At the hearing, Mr Guo, of Counsel, appeared for the applicant by video-link from Melbourne. Ms Ladhams, of the Australian Government Solicitor, appeared for the Minister.  The quality of the written and oral advocacy before the Court was very high.  The Court thanks Mr Guo and Ms Ladhams for their considerable assistance with what proved to be a jurisprudentially complex matter. 

The IAA’s Decision

1. The IAA’s decision is 20 pages long and appears at CB 271-291. The Minister’s submissions at [16] provided an accurate summary of the IAA’s decision. The Court adopts that summary as its own.  That summary, with some additions, provides as follows.

2. The IAA provided an overview of the background of the application and the delegate’s findings (CB 272 at [1]-[4]).

3. The IAA then indicated that it had had regard to the material given by the Secretary under s.473CB of the Act (CB 272 at [5]).

4. The IAA noted that on 11 April 2017, the applicant, through his then-migration agent, provided a submission to the IAA. Parts of this submission referred to and made argument in respect of claims and information that were before the delegate.  The IAA found that, to that extent, this was not new information.  The submission contained new information relating to the applicant’s family and personal circumstances, being: his father has passed away and the applicant is now the head of the family; the relationship with his brothers is not harmonious or close and he does not consider his family in Kabul would offer him any support; and, he is an educated individual (CB 272 at [6] and [7]).

5. The IAA was not satisfied that there were exceptional circumstances to consider new information relating to the applicant’s family and personal circumstances that arose from the 2017 submissions from the applicant’s migration agent (CB 272-273 at [8]-[10]). The IAA (again, with regard to the information in the 2017 submission), also did not consider that there were exceptional circumstances for what it considered was a new claim that the applicant would be targeted because he was an “educated individual” (CB 273 at [11]).

6. The 2017 submission contained references to country information reports which were not before the delegate.  The IAA found this to be new information but found that it was now outdated.  The IAA did not consider there were exceptional circumstances for considering that country information. Instead, the IAA obtained more recent (and more specific) country information that it would consider (CB 273 at [12] and 275 at [18]-[20]).

7. The IAA then referenced the 2019 submissions from the applicant’s migration agent and the new information contained therein. It did so at [14]-[15], as outlined above at [17].

8. The IAA noted that the 2019 submission makes what appears to be a new claim that the applicant will face harm in Malistan due to the existence of Taliban checkpoints and roadblocks. It noted that the applicant claimed that these checkpoints or roadblocks will expose him to harm, including when attempting to reach Malistan, accessing essential health and other services which exist outside Malistan, and due to restricted food availability in that area. The IAA noted that this claim arose from a significant change in circumstances in Malistan that post-dates the delegate’s decision.  On that basis the IAA was satisfied that it could not have been provided to the Minister before the delegate made the decision, and that there were exceptional circumstances to justify considering it (CB 274 at [16]).

9. The IAA then noted that the new information referred to in the 2019 submission consists of country reports and media reports which post-dated the delegate’s decision. The IAA was satisfied that this new information could not have been provided to the Minister before the delegate made the decision and exceptional circumstances existed for it to be considered (CB 274-275 at [17]). The IAA then referenced new country information that it had obtained and would consider (CB 275 at 19).

10. The IAA then summarised the applicants claims “as initially made” (CB 275-276 at [21]) and further information and “evidence” that was provided after the delegate “put” certain matters to the applicant at interview (CB 277 at [22]).  The IAA noted:

    At the interview the delegate put information to the applicant which contradicted aspects of the applicant’s claims. Following consultation with his then-migration agent, the applicant provided further evidence that:

    • A was killed by the Taliban in 1999, not 2009.

    • The applicant’s parents had not gone missing in 2009. His father is still alive and lives in Kabul, but his mother has passed away.

    • His other brothers and his sister-in-law (R’s wife) do not live in Pakistan as he previously claimed. They reside in Kabul with his father. They have lived in Kabul since before the applicant left Afghanistan in 2013. His brothers have attended private high schools and one is attending university in Kabul.

    • The family does not have any financial problems in Kabul.

    • His wife and daughter lived in Kabul for about three months but now live in hiding in Jaghori. His daughter attended school briefly in Kabul but has been unable to continue because they are in hiding.

    • Everything that he said about the incident involving his truck is true.

    • He is under constant tension and sometimes he can’t sleep or remember things. He asked that his mental health be taken into consideration.

11. The IAA considered that the exaggeration of the applicant’s past history and the conflation of time indicated that the applicant had embellished his claimed history to enhance his profile. The IAA noted that the applicant only admitted his false claims when he was confronted with evidence of it (CB 278 at [25]). The IAA did not accept that the applicant’s false claims were due in any way to mental health issues or lapses in memory.

12. The false claims led the IAA to have significant concerns with the credibility of the applicant’s evidence in relation to his past and future profile which it took into account in its assessment of the claims (CB 278 at [26]).  The IAA stated:

    While I note his claim that he is under tension and has difficulty remembering things, I do not accept that his false claims were due in any way to mental health issues or lapses in memory. I consider that the fact that the falsehoods went beyond merely stating that he had no family in Afghanistan, together with his conduct in maintaining his false claims indicates that he was deliberately embellishing or fabricating claims. I do not accept that his proffered explanation is the only reason that he made these false claims and this leads me to have significant concerns with the credibility of the applicant’s evidence in relation to his past and future profile. I have taken this into account in my assessment of his current claims.

13. At CB 278 at [27], the IAA accepted that the applicant is a Shi’a and a Hazara from the Malistan District.  At CB 278 at [28], the IAA determined that Malistan is the area to which he will return. 

14. The IAA did not accept that the applicant or his truck were of any specific interest to the Taliban or were targeted by the Taliban. The IAA accepted that the truck was stolen and that the applicant’s documents were in the truck. However, the IAA found that the applicant was not working for an NGO and had not claimed that he had any documents in his vehicle which associated him with any NGO, foreign forces or the government (CB 279 at [32]).

15. The IAA was not satisfied that the truck incident was anything other than an opportunistic incident of theft or that the applicant was currently or would be in the future of any ongoing interest to the Taliban or anti-government elements because of the truck incident or his general work transporting goods (CB 279 at [33]). The IAA did not accept that the Taliban or any other group came to the applicant’s village looking for him or that his house was burned down as a result of the truck incident (CB 279 at [33]).

16. The IAA accepted that the applicant’s brother was killed by the Taliban in about 1999, but was not satisfied that the applicant was of interest to the Taliban or any other anti-government element (an “AGE”) because of his association with his brother (CB 279-280 at [34]).

1. The IAA was not satisfied that the applicant faces a real chance of harm from the Taliban or any other AGE arising from the truck incident in 2012, his transport work, or the death of his brother in 1999 (CB 280 at [35]).

2. The IAA then assessed the country information relevant to the security situation in Malistan and the applicant’s home district in Ghazni Province (CB 280-281 at [37]-[40]).

3. The IAA was not satisfied that the 2018 attacks in and around Malistan demonstrated that the Taliban was targeting Hazaras, Shi’as or Shi’a Hazaras on the basis of religion or ethnic profiles (CB 281 at [41]-[42]). Rather, the IAA found that the recent violence was directed at the government and, in particular, police and security forces (CB 281 at [42]).

4. The IAA determined that information before the IAA did not support the claim that that the applicant would face a real chance of harm from any anti-government elements or other Pashtun groups as a Shi’a and a Hazara in Malistan. The IAA considered that there was only a remote chance that the applicant would be caught up as a bystander in violence (CB 282 at [45]).

5. The IAA considered that food restrictions in Malistan due to inaccessibility would not be a long term or ongoing issue and was not satisfied that the applicant would face any more than a remote chance of harm arising from food availability in Malistan (CB 282 at [46]).

6. The IAA found that the applicant would not face a real chance of serious harm in accessing his home area of Malistan. Although the IAA accepted that road travel in parts of Afghanistan remains dangerous, and that the applicant may be stopped and searched while travelling between Kabul and Malistan, the IAA was not satisfied that the applicant had any adverse profile with the Taliban or that the Taliban or any other group was systematically targeting or harming Shi’a Hazaras along the road the applicant would travel (CB 282-283 at [47]-[50]).

7. The IAA was not satisfied that the applicant had any intention, need or interest in resuming driving trucks in Malistan, should he return there. This finding took into account evidence given by the applicant at his protection visa interview about his skills and employment prospects (CB 284 at [55]).

8. The IAA considered that there was only a remote possibility that the applicant would be identified by any anti-government group as having been in the West and was not satisfied that the applicant faced a real chance of harm as a failed asylum-seeker who had been in the West (CB 284-285 at [56]-[60]).

9. Having regard to all of the above, the IAA was not satisfied that the applicant has a well-founded fear of persecution (CB 285 at [61]).

10. Turning to the complementary protection assessment, the IAA found that for the same reasons given in relation to the refugee assessment, there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm (CB 286 at [66]). 

Applicant’s Written Submissions

1. In written submissions before this Court, the applicant contended:

   a)the information in paragraph 7 of the 2019 written submissions provided to the IAA (see [15] above) that it is probable that the applicant will need to seek assistance from health and other services unavailable in his remote rural home region was correctly identified by the IAA as new information;

   b)the new information was also correctly identified by the IAA at [14] of its reasons as a “new claim”;

   c)the IAA was wrong, however, to refer to judicial review principles, in the form of its footnote 1, in reaching its conclusion that the new information was a new claim, since the IAA’s task was of course one of merits review, not judicial review. Nothing much turns on this for the present proceeding, except that the misapplication of judicial review principles is consistent with an inference that the IAA misunderstood the law more generally;

   d)accepting the characterisation of the claim as ‘new information’, the IAA concluded at [15] that there were no exceptional circumstances justifying its consideration. The first four sentences of the paragraph are observations about the absence of evidence which the IAA expected should have been provided. The balance of the paragraph is the IAA recording that it considers it ‘relevant’ to the assessment of exceptional circumstances that ‘exposing the IAA to the prospect of receiving an ever-changing or continually emerging factual account of the claims for protection being advanced would run counter to the legislative objective of “fast track” decision making’;

   e)the IAA’s reasoning that there were no exceptional circumstances is erroneous for a number of reasons;

   f)first, even though the IAA recognised the new information was a new claim, the actual reasoning about exceptional circumstances, at [15], shows no appreciation of the significance of the new information being a new claim, as opposed to being (for example) evidence in support of an already-made claim;

   g)binding Federal Court authority is to the effect that the fact new information is a new claim is itself significant, and is capable of informing the assessment of exceptional circumstances;

   h)in DFP16 v Minister for Immigration & Border Protection [2018] FCA 1901 (“DFP16”), the appellant gave new information to the IAA which, like in the present case, was recognised by the IAA as amounting to a new claim. The new claim was that the profile of the appellant’s father and his links to the LTTE were greater than what were disclosed to the appellant’s representative during the delegate stage. 

   i)in DFP16, Justice Colvin said of the new information (at [14]):

   … more significantly for present purposes, it was information that the Authority itself identified as giving rise to a new protection claim of a kind that may have affected the outcome. Accordingly, it was a matter that a decision-maker with a proper understanding of the requirements of s 473DD would be expected to have brought to account in forming the required state of satisfaction as to whether there were exceptional circumstances. The question is whether the Authority did so.

   j)his Honour concluded (at [19]-[21]):

   19.The balance of the reasoning is focussed only on the previous opportunities that had been afforded to the appellants to raise their claims, including the specific reference to the fact that new information would only be able to be presented to the Authority in exceptional circumstances.  The purpose of that reasoning may be considered to go beyond considering whether there were earlier opportunities to raise the new claim to also raise questions about the credibility of the information.  However, the reasons do not engage with the significance of the information and whether it was information that may have affected the result had it been known to the Minister’s delegate.

   20.Given that the Authority had identified the claim as new and recited how it may be significant (and given that the claim by the appellants was based on the father’s profile or links with the LTTE), the failure to consider those aspects in the reasons indicates that they were not matters brought to bear by the Authority in forming the required state of satisfaction as to whether there were exceptional circumstances.

   21.For those reasons, I infer that the Authority was guided by an unduly narrow view of what may constitute exceptional circumstances in reaching the view that requirement (a) had not been met.

   k)DFP16 is binding and not relevantly distinguishable from the present case. In both cases, the IAA identified the information as a new claim. In both cases, the IAA’s reasoning only focussed on ‘the credibility of the information’. This is despite, in both cases, the IAA being aware of how the new information may be significant. In both cases, the claim being new and the potential significance were not brought to bear in forming the required state of satisfaction as to whether there were exceptional circumstances, and therefore the IAA took an unduly narrow view of the term;

   l)second, the reference to ‘exposing the IAA to the prospect of receiving an ever-changing or continually emerging factual account of the claims for protection being advanced would run counter to the legislative objective of “fast track” decision making’ is a direct copy of the obiter of Flick J in Minister for Immigration & Border Protection v CLV16 [2018] FCAFC 80 at [54] (“CLV16”). The context of his Honour’s obiter, however, was the analysis of whether submissions to the IAA could qualify as ‘new information’;

   m)the IAA has literally taken Flick J out of context. By concluding that ‘exposing’ the IAA to the new claim would ‘run counter to the legislative objective of “fast track” decision making’, the IAA misapplied the law, or to use alternative taxonomy, made an error of law. There is nothing in Pt.7AA nor CLV16 which is to the effect that consideration of new claims ‘run counter’ to the fast track process, either in terms or by implication. Indeed, consideration of a new claim, or any other type of new information, is expressly contemplated by s.473DD;

   n)this of itself demonstrates jurisdictional error, although the applicant also puts his case cumulatively;

   o)this is not a mere passing (albeit incorrect) reference to CLV16. The IAA itself described the obiter as ‘relevant’ to its assessment of exceptional circumstances; and

   p)the IAA’s characterisation of the new claim as an ‘ever-changing or continually emerging factual account’, on the correct understanding of Flick J’s obiter in CLV16, is to mistake the new information as a submission. Yet this is directly inconsistent with its earlier, correct, identification of the new information as a new claim. This reinforces the inference that the IAA did not correctly apply the law.

Minister’s Written Submissions

1. The Minister’s written submissions were broken into a number of parts aimed at addressing the sole ground of review.

2. The first of these parts, titled “The IAA’s approach”, provided as follows:

   a)it is clear from the opening words of [14] of the IAA’s decision that the ‘new information’ the IAA was considering at [14] and [15] was the information in the document titled “Written Submission to the Immigration Assessment Authority”, prepared by the applicant’s legal representative, which stated that:

   i)“it is probable” that the applicant will need to access health services; and

   ii)such services may not be available in Malistan;

   b)the IAA then correctly identified that the evidentiary foundation relied upon in the submission to support the assertion that the applicant will need to access health services was that the applicant had been referred to the Primary Assistance and Information Service (“PAIS”) for assistance with his application and this indicated that he had been assessed by the Department as being ‘extremely vulnerable’;

   c)the balance of [14] addresses whether the information described above was in fact ‘new information’. In so doing, the IAA considered whether there was any existing claim for protection based on the applicant’s mental health, either expressly made or emerging clearly from the materials. The IAA noted that although the applicant had requested that his mental health ‘be taken into consideration’ he had not made any claim to have a diagnosed mental health condition, to require treatment or care, or to fear harm from accessing or denial of access to care in Afghanistan. In these circumstances, the IAA was satisfied that the information was ‘new information’; and

   d)at [15], the IAA concluded that there were not exceptional circumstances to justify considering the new information. In reaching this conclusion, the IAA noted that there was no information before it to identify the reasons the applicant was deemed eligible for a PAIS referral. The IAA then proceeded to observe that, despite being represented, the applicant had not provided any evidence with his application, at his interview or with his IAA submission that he had been assessed by a medical practitioner, diagnosed with any condition, or was on any treatment plan or medication. The IAA noted that aside from the applicant’s claims to suffer from tension, sleep problems and forgetfulness, he had not provided any evidence that his physical or mental health had or would impact on his ability to work or had affected his lifestyle. The IAA also referred to a Federal Court case suggesting that exposing the IAA to continually emerging factual account of an applicant’s claims for protection would run counter to the legislative objective of fast track decision-making.

3. In explaining why this approach was not impugned with jurisdictional error, the Minister submitted:

   a)the approach taken by the IAA was open to it and does not represent an unduly narrow approach to the application of s.473DD(a);

   b)in considering whether there were exceptional circumstances to justify considering the new information that the applicant would probably need to access mental health services which may not be available to him in Malistan, it was entirely open to and appropriate for the IAA to take into account the lack of evidence to support the factual premise underpinning the new information. This included that the applicant had not provided any evidence of, or even claimed to have, any diagnosed mental health condition or to require any form of treatment for any mental health condition. It was also appropriate for the IAA to take into account its views that the PAIS referral relied on by the applicant did not disclose that the applicant had any mental health condition;

   c)there are no mandatory prescribed factors that must be taken into account in determining whether exceptional circumstances exist in all cases. The IAA has not, in express terms, directly considered the factors in s.473DD(b) as informing its view in relation to whether there were exceptional circumstances to justify considering the new information, but this is not necessary in all cases;

   d)in the present case, it would be open to the Court to find that the IAA has implicitly considered the s.473DD(b) factors. However, even if the Court declined to make such a finding, and instead found that the IAA had only considered the factors identified at particular (b) of ground 1 of the amended application, this would not amount to jurisdictional error;

   e)in this case, the finding of the IAA that there was no evidence before it to confirm that the applicant has a diagnosed mental health condition for which he may need treatment was itself a sufficient basis for the conclusion that there were no exceptional circumstances to justify considering the new information that the applicant will probably need to access health services that may not be available in Malistan;

   f)additionally, in AYK17 v Minister for Immigration & Border Protection [2019] FCA 1053 (“AYK17”), the Federal Court (at [64]) listed factors that may be relevant to a decision of the IAA not to consider the factors in s.473DD(b) in reaching a conclusion on s.473DD(a), including that:

   The new material was a bare assertion made for the first time in the written submissions to the Authority.  There are a myriad of cases that demonstrate it is not “out of the ordinary course, unusual, special or uncommon” for new claims to be made or expanded upon after the delegate had made his or her decision.  It might be thought that a bare assertion is exactly the sort of claim that Parliament sought to exclude from consideration by the Authority consistently with the reasoning of the Court in CLV16 at [54]…;

   g)the new information relevant to the present application could properly be characterised as a ‘bare assertion’. It is speculative in nature. This is another reason for the Court to find that the IAA did not take an unduly narrow view in its application of s.473DD(a); and

   h)further and alternatively, even though the IAA did not in the present matter consider the factors relevant to s.473DD(b) in express terms, it would be open to the Court to find that the IAA did, in any event, clearly consider factors which would be relevant in any consideration of the requirements of s.473DD(b). In particular:

   i)the IAA’s comments at [14] clearly amount to a finding that the new information was not before the delegate, which is relevant to s.473DD(b)(i). The Minister acknowledges that the IAA decision is silent as to whether or not the new information could have been provided prior to the delegate’s decision, but nothing turns on this in circumstances where the applicant did not endeavour to satisfy the IAA that the new information could not have been provided prior to the delegate’s decision; and

   ii)the IAA’s comments at [15] in relation to the PAIS referral not including any evidence that it related to medical or mental health concerns, along with its further comments at [15] in relation to the absence of any evidence that the applicant has a diagnosed condition, that he requires treatment or that any mental health condition would impact on his ability to find work or otherwise affected his lifestyle, were relevant to both the credibility of the new information, as well as whether it could have affected consideration of the applicant’s claims. In assessing the IAA’s reasons in relation to s.473DD, it should also be borne in mind that the IAA is not required, under s.473EA of the Act, to give comprehensive reasons for any finding in relation to s.473DD.

4. In response to the applicant’s written submissions at [12]-[21], the Minister further contended in writing:

   a)the applicant’s reliance on DFP16 does not establish his case. The applicant relies on a distinction in that case between new information which amounts to a new claim and new information such as evidence in support of an existing claim. Even if the IAA’s reasons at [14] amount to a characterisation of the new information as a new claim, the present case is easily distinguishable from DFP16;

   b)in DFP16, Colvin J clearly considered that two aspects of the IAA’s description of the new information were significant. The first was the IAA’s assessment that the new information raised a new claim. The second was that the claim suggested that the applicant’s father’s links with the Liberation Tigers of Tamil Eelam (“LTTE) and such profile were greater than previously indicated, in circumstances where the IAA then proceeded in its substantive reasons to examine in some detail the nature of actual and perceived links with the LTTE that may expose Tamils in Sri Lanka to a risk of harm, with profile and links to the LTTE being a significant part of the claim to protection considered by the IAA;

   c)the present case is different, in that the second aspect of significance was clearly missing. The IAA has not in the present case identified the new information as being ‘of a kind that may have affected the outcome’. Rather, the IAA’s efforts in pointing out the complete lack of evidence underpinning the new information tends to suggest that the IAA implicitly considered that the new information was not of a kind that may have affected the outcome of the matter. Further, the IAA’s quotation of the words ‘it is probable’ in the opening sentence of [14] suggests that the IAA was very much alert to the speculative nature of the new information;

   d)nothing in DFP16 requires that new information that is or can be characterised as a new claim for protection be treated any differently for the purposes of s.473DD than any other type of new information. Nor is this evident from other case law. The Federal Court has rejected the suggestion that a new claim can be severed from the information on which it is based, and confirmed that any new claim which relies on new information not in the factual pool of information before the delegate, cannot be considered by the IAA unless the requirements of s.473DD are met;

   e)the IAA’s reference to a passage of CLV16 does not amount to jurisdictional error in the present case. In the relevant passage of CLV16, the Full Court expresses the view that the expression ‘new information’ as defined in s.473DC(1) ‘seeks to identify the sources whereby new factual material is sought to be placed before the Authority’. This was in the context of noting different uses of the terms ‘information’ and ‘documents’ throughout Pt.7AA of the Act. The Court then proceeded to make the comments referred to by the IAA, that to expose the IAA to the prospect of an ever-changing or continually emerging factual account of the claims for protection would run counter to the legislative objective of fast track decision-making. The Court ended the paragraph by noting that a submission directed to an established pool of factual information would not amount to new information;

   f)there is nothing controversial about the Full Court’s comments that to expose the IAA to the prospect of receiving an ever-changing or continually emerging factual account of an applicant’s claims for protection is contrary to the legislative objective of fast track decision making. Indeed, the very terms of s.473DD indicate that consideration of new information (be it claims or evidence) is only permitted in exceptional circumstances. In other words, the consideration of a changing or emerging factual account of an applicant’s claims is intended to be the exception rather than the norm;

   g)on a proper understanding of [54] of CLV16, it cannot be said (as the applicant does) that the IAA has mistaken the new information as a submission. Indeed, on a proper reading of [54] of CLV16, had the IAA interpreted the new information simply as a submission directed to an established pool of information, it would not have classified such a submission as new information;

   h)there is no jurisdictional error based on the IAA’s treatment of new information in accordance with s.473DD of the Act.

Oral Submissions Made on behalf of the Applicant

1. At hearing, Mr Guo of Counsel for the applicant stated:

   a)the IAA’s first error is that it did not take into account or appreciate its own finding that the new information was a new claim.  For this reason this case is on all fours with DFP16;

   b)in DFP16 the IAA identified that the new information amounted to a new claim and that there was some significance to this new claim vis-à-vis the way in which the applicant in that case put his protection claims;

   c)the IAA spends an extensive amount of time in this matter discussing the issue of travel (which clearly arose within the context of the new claim) and it can be inferred from this that it considered the claim significant or that it may have affected the outcome;

   d)at [39]-[40], the IAA accepts that there was evidence to the effect that it was dangerous for people travelling to and from and in and around Malistan, a matter that directly relates to the new claim. The IAA appreciated that there were risks arising in relation to travel and that that was part of how the applicant had put his case in relation to the original claims.  The IAA engaged in an extensive analysis addressing that to reach a conclusion that there was no real risk; 

   e)it is necessarily the case that when one considers the question of whether the new claim would have made a difference had it been known (see s.473DD(b)(ii)), that the more a person needs to travel (in this case for medical services) suggests the more chance that the person will be exposed to the risk. Hence, whether it is a real risk after that additional exposure is another question, but the proposition that the more exposure there is to travel the higher the risk will be necessarily follows and needed to be considered;

   f)the second error is that it is quite clear that the obiter of CLV16 is about whether a submission can amount to new information.  The IAA itself accepted that the new information was not a submission, but a new claim.  Hence, the fact that the IAA applied this obiter suggests that it did not properly understand what this obiter was about and directly and actively applied it incorrectly;

   g)the IAA has characterised the new information (or new claim, as the IAA accepted it was) as a factual account of the claims when it is not an account of claims.  Rather, it is a claim itself and there was a complete absence of the consideration of the information as a new claim which, if considered, could have resulted in a different decision; 

   h)the Minister says that this new claim is “speculative”.  All claims are inherently speculative because they all posit the question, or ultimately require assessment of the question: is there a real risk?  It is fundamental in a refugee assessment to engage in a degree of speculation;

   i)the Court ought to be slow to infer that there was some other basis that was considered by the IAA but which was not expressed; and

   j)the very nature of the fast track system, and s.473DD, expressly contemplates that new claims can be made. Hence, it cannot be said an applicant raising a late claim runs counter to fast track processing.

Oral Submissions Made on behalf of the Minister

1. At hearing, Ms Ladhams of Counsel for the Minister stated:

   a)what the Court was dealing with in DFP16 was a discussion by the IAA about the circumstances in which LTTE involvement could amount to significant harm.  The new information in that case went directly to the extent of the applicant’s involvement with the LTTE. When the Court is talking about the significance of the new information in DFP16, it is talking about the significance of the new information in the context of its own findings and discussions;

   b)the Minister accepts that the new information that was considered by the IAA in [14]-[15] was new information provided in the context of travel;

   c)here, the IAA had not or did not recognise the medical claims as being significant in the way that the Court in DFP16 did;

   d)the new information that is the subject of the claim can be expressed as follows:

   i)the applicant would likely require medical treatment; and

   ii)that treatment would not be available in Malistan, or may not be available in Malistan;

   e)although this was raised in the context of travel, it is not “significant” because the IAA, in any event, found that the applicant did not face a real risk because of travel and because there were no assertions as to what treatment the applicant would require, where that treatment would be provided and the extent of any travel he would or might need to undertake. Hence, there is nothing in the new information provided by the applicant to show how it could be significant in this particular case;

   f)it is relevant to look at how the claims were advanced and what the IAA actually decided.  In the submission that contained the new information, it was not “put” with any certainty.  Rather, it was put in a hypothetical or speculative way or raised as a “possibility” based on the mere existence of a PAIS referral;

   g)the findings at [15] about the lack of evidence are very relevant to what the IAA was required to consider.  Having recognised that there is no evidence, or that there was insufficient evidence, from which the IAA could conclude that the applicant does in fact have a medical condition that requires treatment, the new information was a “bare assertion” without a plausible evidentiary basis;

   h)the evidence before the IAA was a request by the applicant that his mental health be taken into account.  The IAA has found that that did not amount to a claim that he did in fact have a mental health condition that had been diagnosed or that required treatment;

   i)if the Court is to look at whether the new information could have affected consideration of the claims by the delegate, the applicant submits it could have because the delegate might have asked more questions, and might have got further information. Such submission is akin to saying, “Had the applicant provided different information and further evidence of his claims, it might have affected the outcome.”  That could be said of every single case;

   j)it is very difficult to see how there could realistically have been a different outcome here in the absence of any evidence to show what medical condition the applicant had, what treatment was required, whether or not that treatment was available in Malistan and, if not, where that medical treatment would be available. The applicant has not provided any evidence of any of these things and this is particularly relevant in the context of s.473DD(b) – because the onus is on the applicant to satisfy the IAA that the requirements of s.473DD(b) are met and he has simply made no attempt to do so in this particular case; and

   k)the new facts sought to be placed before the IAA are the probable need for medical treatment and the possible unavailability of that treatment in Malistan.  The IAA’s reference to CLV16 is not out of context.  The applicant was seeking to put new factual information before the IAA, and there is no jurisdictional error in referring to judicial authority in a decision, given that the statement referred to is not controversial. 

Consideration

1. Section 473DD of the Act relevantly provides:

   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.

2. Section 473DD of the Act prohibits the IAA from considering new information unless two requirements are met. The first of those requirements is that the IAA is satisfied that there are “exceptional circumstances”: s.473DD(a). The second requirement is that new information either (i) was not and could not have been provided to the Minister before the decision on the visa application; or (ii) is credible personal information not previously known and had it been might have affected the consideration of the applicant’s claims: s.473DD(b).

3. The Court notes the summary of the principles relevant to s.473DD provided by Thawley J in CMY17 v Minister for Immigration & Border Protection [2018] FCA 1333 at [26], as follows:

   (1)The requirements of s 473DD(a) and (b) are cumulative. The Authority is prohibited from considering new information unless it is satisfied of the matters in both paragraph (a) and subparagraph (b)(i) or (ii) or both: CQW17 at [36]; AQU17 at [13].

   (2)The words ‘exceptional circumstances’ are not defined and are to be given their ordinary meaning; circumstances are ‘exceptional’ if the circumstances may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon: AQU17 at [13].

   (3)What will amount to ‘exceptional circumstances’ is inherently incapable of exhaustive statement and must depend on the particular circumstances of the visa applicant’s case: Plaintiff M174 at [30]; AQU17 at [14]. There may be a combination of factors which, when viewed together, constitute ‘exceptional circumstances’, or one factor itself may be sufficient for ‘exceptional circumstances’ to exist: AQU17 at [13].

   (4)The Authority’s satisfaction that there are exceptional circumstances (subparagraph (a)) to justify considering the new information extend beyond, but might be contributed to by, the Authority’s satisfaction that the new information:

   (a)could not have been provided to the Minister at the time of the s 65 decision (subparagraph (b)(i)); or

   (b)is credible personal information which had not previously been known (subparagraph (b)(ii)): CQW17 at [48]-[49].

   (5)Whilst it always depends on the particular facts, a failure by the Authority to turn its mind to the matters in subparagraphs (b)(i) and (b)(ii) in determining whether it is satisfied that there are ‘exceptional circumstances’ for the purposes of paragraph (a) may constitute jurisdictional error: CQW17 at [51]-[53]. However, it is a misconception that the matters in (b)(i) and (ii) must, in all cases, be considered by the Authority in deciding whether ‘exceptional circumstances’ exist under (a): AQU17 at [14]. Nor is there a requirement to make an express finding under (b)(i) or (ii) for the purpose of considering whether ‘exceptional circumstances’ exist under (a): AQU17 at [16].

   (6)It is possible that the Authority’s consideration of the existence of exceptional circumstances under paragraph (a) is relevant to its satisfaction as to the matters in paragraph (b), however it would be necessary to identify:

   (a)the circumstances contended to be exceptional; and

   (b)how consideration of such asserted exceptional circumstances might have informed the Authority’s consideration of the matters in (b): CQW17 at [71]-[72].”

4. The question for this Court is: did the IAA adopt an unduly narrow view of what were “exceptional circumstances” pursuant to s.473DD of the Act when it declined to consider new information advanced by the applicant?

5. Here, the information provided consisted of a submission from the applicant’s migration agent dated 11 January 2019 which, relevantly, claimed that:

   i)the applicant would likely require medical treatment; and

   ii)treatment would may not be available in Malistan.

6. As noted above, the IAA addressed this new information at [14]-[15] in its decision.  For ease of reference, those paragraphs provide:

   14. The 2019 submission claims that “it is probable” that the applicant will need to access health services, and that such services may not be available in Malistan. The submission notes that the applicant was referred to the Primary Application and Information Service (PAIS) for assistance and that this means the applicant was assessed as being “extremely vulnerable”. The applicant did not raise this claim before the delegate and neither do I consider that it arose on the material. While an otherwise unarticulated claim may arise on the information before a decision maker, there needs to be some evidence or material suggestive of the existence of each element of the claim to be considered. A fear of persecution or significant harm is an essential factual element of claims for protection and if this does not arise on the material before a decision maker, a relevant claim based on these fears does not arise. Although the applicant asked at the interview that his mental health “be taken into consideration” he did not claim to have any diagnosed mental health conditions, to require treatment or care, or to fear harm from accessing or denial of access to care in Afghanistan. The applicant did not indicate any fear of persecution or other harm in respect to this claim and I am satisfied that it did not otherwise arise and as such is new information.

   15. There is no information before me identifying the reason(s) that the applicant was deemed eligible for PAIS assistance, or that the invitation related to any medical or mental health concerns. The applicant, having accepted the PAIS assistance, was assisted by a migration agent to prepare the application and at the interview. Although the applicant asked at the interview that his mental health “be taken into consideration”, he did not provide any evidence in his application, at the interview or in his IAA submission that he has been assessed by a medical practitioner, diagnosed with any condition, or that he is on any treatment plan or medication. He has not provided any evidence that his physical or mental health precludes him from any work or has impacted on his ability to find and maintain work. Apart from his claim to suffer tension, sleep problems and some forgetfulness, he has not provided any evidence that his lifestyle in Australia has been, or is being affected by medical or mental health issues. I also consider relevant the Full Court of the Federal Court of Australia finding that exposing the IAA to the prospect of receiving an ever-changing or continually emerging factual account of the claims for protection being advanced would run counter to the legislative objective of “fast track” decision making. Having regard to all of the above, I am not satisfied that there are exceptional circumstances to justify considering this new information.

   (Citations omitted)

7. The applicant has raised concerns in relation to the IAA’s reference to the dicta in CLV16.  Although not entirely clear, the applicant’s concern in this regard seems to be that the IAA should not have referenced that decision in determining whether exceptional circumstances exist.

8. The Court cannot see any error in the IAA’s reference to the decision in CLV16.  The relevant passage in CLV16 (per Flick, Griffiths and Perry JJ) provides as follows:

   The expression “new information” as defined in s 473DC(1), it is concluded, seeks to identify the sources whereby new factual material is sought to be placed before the Authority. To expose the Authority to the prospect of receiving an ever-changing or continually emerging factual account of the claims for protection being advanced would run counter to the legislative objective of “fast track” decision-making. But there remains no clearly expressed legislative intent to deny to a claimant the ability to place before the Authority – and to have the Authority in fact consider – a submission directed to an established pool of factual information.

9. The Court is not satisfied that the IAA’s reference to [54] in CLV16 is errant, or that the IAA has taken CLV16 out of context. Rather, the IAA’s reference is entirely appropriate and uncontroversial and a factor that it was entitled to consider in determining whether there were exceptional circumstances that allowed it to consider the information provided.

10. At [54] in CLV16, the Court understands the Full Court to be saying that new claims and new information are not always the same thing. It may be that information that was before the delegate can give rise to a claim that was not made expressly to the delegate. Such claim can arise from the “existing pool of factual information”. However, where the new claim is based on factual assertions that were not made before the delegate, this is “new information”.

11. At [14], the IAA clearly indicated that the claim was not expressly or implicitly raised before the delegate.  Rather, it was a new claim. The IAA can be understood to have impliedly rejected that the new claim was part of an established pool of factual information. The reference to CLV16 can be seen as the IAA identifying that the “new claim” fell into the category of “new information” as it came from an “emerging” factual account and, as such, was counter to the legislative regime. 

12. There is no error in this regard. When introducing Pt.7AA, the Explanatory Memorandum to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth) states:

    The measures will prevent those asylum seekers who attempt to exploit the merits review process by presenting new claims or evidence to bolster their original unsuccessful claims only after they learn why they were not found to engage Australia’s protection obligations by the Department of Immigration and Border Protection.

    …

    The complete package of reforms proposed in this Bill intend to place an emphasis on all fast track applicants to articulate their protection claims in a legitimate and authentic way at the earliest possible opportunity. As such, the IAA’s primary function of limited review is underpinned by a presumption that there should be no further requirement to consider new information in a case involving a fast track review applicant. A fast track review applicant has had ample opportunities to present their claims and supporting evidence to justify their request to international protection throughout the decision-making process and before a primary decision is made on their application…

13. The Court is not suggesting here that the applicant was attempting to exploit the merits review process by making a new claim. However, it is clear that the legislative intention is that new claims ought not to be considered other than in the restricted circumstances found under s.473DD of the Act. This is uncontroversial and there is ample judicial discussion of the fast track regime that makes it quite clear that raising new claims is, by all measures, difficult.

14. That does not mean, however, that it cannot happen.  Nor can it be said here that the IAA was suggesting that it could not. 

15. The Court agrees with the Minister that there is nothing controversial about the IAA’s reference to the Full Court’s comments that to expose the IAA to the prospect of receiving an ever-changing or continually emerging factual account of an applicant’s claims for protection is contrary to the legislative objective of fast track decision making. Indeed, the very terms of s.473DD indicate that consideration of new information (be it claims or evidence) is only permitted in exceptional circumstances. In other words, the consideration of a changing or emerging factual account of an applicant’s claims is intended to be the exception rather than the norm. Here, the IAA is simply highlighting that the Federal Court has rejected the suggestion that a new claim can be severed from the information on which it is based, and confirmed that any new claim which relies on new information not in the factual pool of information before the delegate cannot be considered by the IAA unless the requirements of s.473DD are met.

1. Here, it is clear that the new information provided by the applicant was assessed as new information raising a new claim. The question that arises is whether the IAA failed to actively engage with that new information when it determined that there were no exceptional circumstances to justify considering the new information.  That is, do the reasons engage with the significance of the information and whether it was information that may have affected the result had it been known to the Minister’s delegate?

2. The Court is guided here by the analysis provided by Colvin J in DFP16.  That judgment merits detailed analysis here.

3. The appellants in DFP16 were a father and son of Tamil ethnicity.  They came to Australia from Sri Lanka in January 2013, arriving on Christmas Island.  Their applications for protection visas were refused by a delegate of the Minister.  The IAA then affirmed the refusal of their visa applications.  The applicants then filed an application for judicial review in the Federal Circuit Court.  That application was unsuccessful. The applicants appealed from that decision.  On appeal to the Federal Court, the matter was heard by Colvin J.

4. The appellants advanced a single ground of appeal to the effect that the Circuit Court had erred in failing to find error by the IAA in not considering certain new information.  The appellants argued that the new information they sought to rely upon before the IAA was ‘an unsigned statement to the effect that:

   a)The appellant’s father had formally trained for six months with the LTTE; and

   b)the appellant had not disclosed that fact to Departmental officials or his migration agent because he was scared it would create trouble for him both in Australia and Sri Lanka.

5. Justice Colvin explained that the contention advanced for the appellants was to the effect that the primary judge should have found that the IAA displayed a misunderstanding of the nature and extent of the statutory prohibition in s.473DD of the Act in considering whether to refer to the new information. The IAA had found that there were no exceptional circumstances to justify considering the new information. It did not consider, in express terms, the elements of either of the limbs of s.473DD(b).

6. As explained by Justice Colvin (at [10]), the IAA reasoned in the following way in recording why it was not satisfied that there were “exceptional circumstances” to refer to the new information: 

   10.The reviewer began by describing the new information (para 4).  In the course of doing so he described the new information as being a statement in which the father ‘makes a new protection claim’.  The new claim was said to be that he had trained for six months with the LTTE prior to his arrest ‘and therefore his profile and links to the LTTE were greater than he disclosed to his representative’.  It is significant that the information was described in this way for two reasons.  First, the information is assessed as raising a new claim.  Second it is a claim that the father’s LTTE profile and links were greater.  In this regard, I note that the Authority in its substantive reasons affirming the decision not to grant the visa applications went on to examine in some detail the nature of actual and perceived links with the LTTE that may expose Tamils in Sri Lanka to a risk of harm (paras 41 to 48).  So profile and links to the LTTE were a significant part of the claim to protection considered by the Authority.  The Authority reviewer concluded:

   I am not satisfied that [the father] was of ongoing interest to the Sri Lankan authorities at the time he left Sri Lanka, except as the subject of routine, intermittent monitoring.

7. Justice Colvin continued:

   11.A person who was found to have actual links through having participated in training over an extended period may have been found to be in a different risk category.  Even if the Sri Lankan authorities did not know about the participation, it may have been that the prospect that such participation may be discovered would be considered relevant.

   12.Returning then to the reasons, the Authority reviewer next recognised that fear of adverse consequences is not uncommon among protection visa applicants (para 5).  This was a reference to the explanation that had been given by the father for the failure to provide the information any earlier.  The reviewer noted that the information pre‑dated the decision by the Minister’s delegate and that there were three previous occasions when there was an opportunity to disclose the information.  As to the third of those occasions the Authority dealt in some detail with the fact that at the father’s interview for the purposes of the decision by the Minister’s delegate it had been explained that it was extremely important that all information be provided because on a review by the Authority it can only consider information provided to the Department unless exceptional circumstances apply.  This too is a consideration of the explanation in the sense that it is adverting to matters that stand against the explanation.

   13.The Authority then found:  ‘The applicant’s reasons for non‑disclosure do not satisfactorily explain his failure to provide the information before the delegate made a decision’.  The Authority then amplified the reasoning to support that finding by referring to what had occurred before the Minister’s delegate and the fact that the appellants had been represented by a migration agent.  The reviewer then concluded:  ‘Considering all of the above factors, I am not satisfied there are exceptional circumstances’.

   14.The new information was of a character that might fall within the terms of the language used in s 473DD to describe the second limb of requirement (b) on the basis that it was ‘credible personal information which was not previously known and, had it been known, may have affected the consideration of the … claims’ of the father and therefore the son. (The reference to ‘not previously known’ is a reference to not previously known to the Minister: Plaintiff M174/2016 at [33]). However, more significantly for present purposes, it was information that the Authority itself identified as giving rise to a new protection claim of a kind that may have affected the outcome. Accordingly, it was a matter that a decision-maker with a proper understanding of the requirements of s 473DD would be expected to have brought to account in forming the required state of satisfaction as to whether there were exceptional circumstances. The question is whether the Authority did so.

8. His Honour outlined the competing contentions of the parties, as follows:

   15.For the appellants, it was contended that the reference to the statement raising a new claim was no more than a brief restatement or recitation of what comprised the new information. It was submitted that the Authority considered only whether the information could have been provided at an earlier time. Further, it was said that there had been no consideration in express terms as to whether the claim may have affected the outcome. These matters were said to disclose a failure to properly understand the nature of what was required by s 473DD when forming the state of satisfaction as to whether there were exceptional circumstances.

   16.For the Minister, it was said that there was engagement with the required task. It was emphasised that the Authority did not need to address the second limb of requirement (b) when determining whether there were exceptional circumstances. The requirements in (a) and (b) are cumulative and there is no obligation to consider (b) if (a) is not met. Further, it was a matter for the Authority as to whether it was satisfied and provided it formed that satisfaction with a proper understanding of what was required by s 473DD then there was no jurisdictional error. As the Authority had considered matters that might be relevant to whether the new information was outside the routine or normal and did so in a manner that did not indicate that it misunderstood the required task there was no error. It was for the appellants to demonstrate jurisdictional error by the Authority on the basis that it acted on an incorrect understanding of what was required by s 473DD and they had failed to discharge that onus.

9. His Honour then assessed whether there was an evident failure on the part of the IAA to act on a proper understanding of s.473DD:

   17.The Authority began by identifying the matters in the statement as raising a new claim.  Although the Authority then said ‘and there his profile and links to the LTTE were greater than he disclosed to his representative or the Department of Immigration’, those were the words actually used in the statement which said:

   Before my arrest in Sri Lanka, I had participated in six months of formal training with the LTTE.  My profile and links to the LTTE were greater than I had advised my agent and the Department.

   18.Therefore, having regard to the context, I accept that the reasons of the Authority were simply identifying the claim as new and reciting the nature of the claim.  There was no consideration by the Authority at this point in the reasons of the significance of the claim for the visa applications by the appellants.

   19.The balance of the reasoning is focussed only on the previous opportunities that had been afforded to the appellants to raise their claims, including the specific reference to the fact that new information would only be able to be presented to the Authority in exceptional circumstances.  The purpose of that reasoning may be considered to go beyond considering whether there were earlier opportunities to raise the new claim to also raise questions about the credibility of the information.  However, the reasons do not engage with the significance of the information and whether it was information that may have affected the result had it been known to the Minister’s delegate.

   20.Given that the Authority had identified the claim as new and recited how it may be significant (and given that the claim by the appellants was based on the father’s profile or links with the LTTE), the failure to consider those aspects in the reasons indicates that they were not matters brought to bear by the Authority in forming the required state of satisfaction as to whether there were exceptional circumstances.

   21.For those reasons, I infer that the Authority was guided by an unduly narrow view of what may constitute exceptional circumstances in reaching the view that requirement (a) had not been met.

   22.It was not argued for the Minister that this matter should be approached on the basis that the reasons did not disclose all of the reasons of the reviewer so it is not necessary to consider the issues that arise concerning the inferences that might be drawn from a failure to refer to a matter where reasons do not have to be provided on a procedural matter:  BCQ16 v Minister for Immigration and Border Protection [2018] FCA 365 at [50] (Thawley J) and CVS16 v Minister for Immigration and Border Protection [2018] FCA 951 at [29] (Bromwich J). In that regard, I note that given the form of the reasons there would have been difficulties in presenting such a position as the reasons dealt with the matter in some detail. In that context, it is unlikely that such an important aspect was considered but went unexpressed in the reasons.

10. Justice Colvin then assessed the approach of the primary judge, finding:

    27.The primary judge found that ‘the Authority considered the nature and content of the new information, the explanation why it was not submitted to the Delegate, and the satisfactoriness of that explanation in the circumstances’:  DFP16 v Minister for Immigration and Border Protection [2018] FCCA 1586 at [139]. On that basis the primary judge found that it was open to the Authority to conclude that that it was not satisfied that there were exceptional circumstances: at [140]. However, that reasoning fails to recognise the significance for the question whether a proper understanding of the statutory provision guided the decision of the failure to engage with whether the information had any significance for the visa applications.

    28.The primary judge at [133] also found that the case appeared to be ‘on all fours’ with Plaintiff M174/2016.  However, the reasons of the Authority in Plaintiff M174/2016 (recorded at [64]‑[65]) show a close engagement with whether the information had significance for the applicant’s claim and is to be contrasted in that respect with the present case. Therefore, the present case is not factually analogous to the circumstances considered in Plaintiff M174/2016.

11. His Honour found that, in light of the above, the IAA had taken an unduly narrow view of what may constitute exceptional circumstances and had, accordingly, erred in a material way.

12. Here, as in DFP16, the information is assessed by the IAA as raising a new protection claim. It is a claim that the applicant will probably need to access medical services for a mental health condition and he might not be able to access those services in Malistan.  That issue had not been raised previously by the applicant.  Any suggestion that it was is rejected.

13. It is evident that in claiming that he might not be able to access essential medical services in Malistan, the applicant is saying that he might need to travel to get those services. This is significant because the IAA, in its substantive reasons affirming the decision not to grant the visa application, spent a great deal of time canvassing the country information relevant to travel of Afghanistan’s roads (noting, in particular, [16] and [48]-[54]). Ultimately, the IAA determined that road travel was not an issue for this applicant.

14. The question then is whether the IAA has properly engaged with this significant issue as articulated in the new claim/new information. 

15. The Court finds that the IAA did engage with and properly address this significant issue. 

16. Here, the new claim does not go as far as the new claim in DFP16.  In that case, the new information indicated that the appellants were of a greater profile to the LTTE – something that was clearly significant to the way in which the applicants in that case had put their protections claims.  The new information went directly to the extent of the applicant’s involvement with the LTTE and the IAA failed to engage with whether the information had any significance for the visa applications.

17. Here, the new claim simply states that it was it is probable that the applicant will need to access health services, and that such services may not be available in the applicant’s home state of Malistan. As such, he might need to travel to obtain health care services.

18. The IAA assessed this issue by finding that there was simply no evidence before it to confirm that the applicant has a diagnosed mental health condition for which he may need treatment.  This was itself a sufficient basis for the conclusion that there were no exceptional circumstances to justify considering the new information that the applicant will probably need to access health services that may not be available in Malistan.  In this regard, the Court accepts the Minister’s submissions that the IAA’s focus on the lack of evidence underpinning the new information makes it clear that that the IAA considered that the new information was not of a kind that may have affected the outcome of the matter. 

19. The Court also notes the Minister’s arguments in relation to the decision in AYK17. As noted, the Federal Court (at [64]) listed factors that may be relevant to a decision of the IAA not to consider the factors in s.473DD(b) in reaching a conclusion on s.473DD(a), including that:

    The new material was a bare assertion made for the first time in the written submissions to the Authority.  There are a myriad of cases that demonstrate it is not “out of the ordinary course, unusual, special or uncommon” for new claims to be made or expanded upon after the delegate had made his or her decision.  It might be thought that a bare assertion is exactly the sort of claim that Parliament sought to exclude from consideration by the Authority consistently with the reasoning of the Court in CLV16 at [54]…;

20. This is precisely what has occurred in this case.  Here, the new information can properly be characterised as a ‘bare assertion’.  It is entirely speculative in nature.

21. The Court also accepts the Minister’s argument that there is nothing in DFP16 that requires that new information that is or can be characterised as a new claim for protection be treated any differently, for the purposes of s.473DD, than any other type of new information. A new claim cannot be severed from the information on which it is based. Any new claim which relies on new information not in the factual pool of information before the delegate, cannot be considered by the IAA unless the requirements of s.473DD are met.

22. Here, the IAA found that the requirements of s.473DD had not been met. No exceptional circumstances could be found that permitted the new claim to be to assessed because the information provided simply lacked substance and, contextually, added nothing to the overall assessment made by the IAA.

23. When reading the IAA’s decision as a whole, it is clear that the IAA has considered the significance of this new, speculative information and whether it may have affected the relevant decision. At [15], the IAA explained that there was nothing before it to indicate that the applicant’s mental health was a factor that would cause him significant harm. In the Court’s view, [15] clearly indicates that the IAA engaged with the significance of the new claim and whether it may have affected the result. The IAA expressly noted that there was nothing to indicate why the PAIS assistance had been provided. Had that information been supplied, or had the applicant advanced evidence of a medical condition or a need for treatment, then the IAA may well have formed a different view about whether the applicant’s claimed mental health condition affected his ability to travel in Afghanistan.  Unfortunately, the new information that was provided was sparse and unsupported. There was, for example, no material or evidence that the applicant was the subject of any treatment plan or medication that would have required him to travel to obtain either.

24. Further, the applicant had not provided any evidence that his physical or mental health precluded him from any work or impacted on his ability to find and maintain work and he had not provided any evidence that his lifestyle in Australia had been, or was, affected by medical or mental health issues such that this would continue were he to return to Malistan.  In effect, there was simply nothing in the new claim advanced that raised it to the level of “something that must be accepted and assessed.”

25. When looked at in this context, it cannot be said that the IAA erred in the sense addressed in DFP16.

26. The IAA has not adopted an unduly narrow view of s.473DD of the Act as the applicant suggests. The sole ground of review is, accordingly, dismissed.

Conclusion

1. The Court is satisfied that the IAA has not erred in the way suggested by the applicant in the sole ground of the judicial review application or otherwise.

2. The application is, accordingly, dismissed.

I certify that the preceding ninety-nine (99) paragraphs are a true copy of the reasons for judgment of Judge Kendall

Associate: 

Date:  23 October 2019