AJH19 v Minister for Immigration - [2019] FCCA 2599

FEDERAL CIRCUIT COURT OF AUSTRALIA

AJH19 v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 2599

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Bangladesh – applicant’s factual claims believed in part but his fears found not to be well-founded – whether the Authority failed to consider integers of the applicant’s claims or erred in rejecting new information considered – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36, 65, 473DC, 473DD

Cases cited:

Applicant WAEE v Minister for Immigration [2003] FCAFC 184

BVZ16 v Minister for Immigration [2017] FCA 958

CHF16 v Minister for Immigration (2017) 257 FCR 148

CIH16 v Minister for Immigration [2018] FCA 1317

DNA17 v Minister for Immigration [2019] FCAFC 146

DPH17 v Minister for Immigration & Anor [2019] FCCA 2258

DYS16 v Minister for Immigration (2018) 260 FCR 260

Htun v Minister for Immigration (2001) 194 ALR 244

Khan v Minister for Immigration (1987) 14 ALD 291

Minister for Immigration v BBS16 (2017) 257 FCR 111

Minister for Immigration v SZMTA (2019) 93 ALJR 252

NABE v Minister for Immigration (No 2) (2004) 144 FCR 1

Plaintiff M174/2016 v Minister for Immigration [2018] HCA 16

SZTFI v Minister for Immigration [2015] FCA 322

Applicant:

AJH19

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 260 of 2019

Judgment of:

Judge Driver

Hearing date:

13 September 2019

Delivered at:

Sydney

Delivered on:

18 October 2019

REPRESENTATION

Counsel for the Applicant:

Ms U Okereke-Fisher

Solicitors for the Applicant:

ABU Legal

Counsel for the Respondents:

Mr G Johnson

Solicitors for the Respondents:

HWL Ebsworth

ORDERS

The application as amended on 2 September 2019 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 260 of 2019

AJH19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 15 January 2019. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from the submissions of the parties.
The applicant is a citizen of Bangladesh who arrived in Australia in June 2013 and on 16 November 2016 made an application for a Safe Haven Enterprise Visa (SHEV).[1] He claimed to fear harm in his home country on the basis of his political opinion. In particular he claimed that he had been in Bangladesh, and continued in Australia to be, a member of the Bangladesh National Party (BNP). He claimed to have been threatened in the past by members of the Sarbohara Party and the Awami League. He claimed that his uncle was a local BNP politician and that his uncle’s home had been attacked. From 2006 to 2013 (when he left for Australia) the applicant was less involved in BNP activities and travelled regularly to Dhaka where his brother had a shop. He had participated in meetings and demonstrations of the BNP since coming to Australia.[2]
[1] [1]; Court Book (CB) 151
[2] The applicant’s claims are summarised by the Authority at [6]; CB 151-152
On 1 November 2018 the delegate refused to grant the applicant a SHEV.[3] The applicant’s matter was referred to the Authority.[4] On 27 November 2018 the applicant, through his representative, sent to the Authority a written submission (Authority submission).[5]
[3] CB 92
[4] CB 132
[5] CB 141
On 15 January 2019 the Authority affirmed the decision under review.[6]
[6] CB 150
The Authority had regard to the applicant’s submission and took it into account observing that it restated the applicant’s claims that were before the delegate, addressing the delegate’s decision and issues arising from the decision.[7]
[7] [5]; CB 151
The Authority detailed the applicant’s evidence given in his interview with the delegate concerning his political affiliations and history with the BNP in Bangladesh.[8] The Authority referred to relevant country information concerning political unrest in Bangladesh at [16].[9] By reference to the evidence, the Authority accepted the applicant’s uncle was a local BNP politician in Barisal and that the applicant was a member of the BNP from 2002.[10] It accepted that the applicant may have received threatening phone calls while he was politically active with the BNP. However the Authority did not accept that the applicant was a committed BNP activist or held a position of significance in the party.[11] The Authority considered the paucity of the applicant’s understanding of any specific policies of the BNP undermined his claim. It found that his political involvement was linked to his uncle holding an influential local position.
[8] [11]-[15]; CB 152-153
[9] CB 153-154
[10] [17]; CB 154
[11] [18]; CB 154
The Authority accepted the applicant’s claims concerning attacks on his uncle.[12] However it found that it was the uncle, and not the applicant, who was the target of the attacks and that the applicant was of little or no interest to the opposition parties.[13] The Authority referred expressly to the applicant’s evidence that he moved “more permanently” to Dhaka after the BNP lost power in 2006 and that he was only infrequently involved with the party during this period. The Authority considered it implausible that the applicant was of continued interest to the opposition parties after 2006 but that his uncle continued his involvement with the party without apparent difficulty.[14] The Authority did not accept the applicant was continually threatened by the Sarbohara Party or the Awami League, or that he was of any interest to the police or Bangladeshi authorities at any point.
[12] [19]; CB 154-155
[13] [20]; CB 155
[14] [21]; CB 155
In relation to the applicant’s participation in BNP activities since coming to Australia, the Authority accepted that the applicant had participated in some activities, including attending a demonstration against the Bangladesh Prime Minister in 2018.[15] It did not accept however that the applicant had been involved in the BNP in Australia for as long as he had indicated, and found that his involvement in the events was low-level.[16] The Authority was not satisfied that the applicant would actively participate in BNP activities in the future if he returned to Bangladesh.[17]
[15] [24]; CB 156
[16] [24]; CB 156
[17] [25]; CB 157

The current proceedings

These proceedings began with a show cause application filed on 11 February 2019. The applicant now relies upon an amended application filed on 2 September 2019. There are two particularised grounds in the amended application:
Ground One:
The Authority failed to consider certain integers of the Applicant’s claims relating to Police Brutality, thereby leading to a failure to exercise jurisdiction.
PARTICULARS
a) Politics in Bangladesh especially against the Awami League is unsafe and Police Brutality has escalated. [Paragraph 14, CB 40]
b) The power of the police is such that no one can do anything about their brutality. [Paragraph 16, CB 40]
c) If I was returned I fear being tracked down by the Awami League members who threatened me previously. [Paragraph 18, CB 41]
d) The Police brutality against BNP supporters is horrifying and I can get no help from the State. [Paragraph 20, CB 41]
Ground Two:
The Authority fell into jurisdictional error by failure to consider New Information provided by the Applicant pursuant to s 473DD; in that it failed to consider the new information advanced by the Applicant in accordance with the law, failed to consider explanations and reasons advanced by the Applicant. In doing so, it constructively failed to exercise its jurisdiction under s.473DD.
PARTICULARS
The Applicant’s agent sent a submission dated 27 November 2018 to the Authority (the “IAA Submission”)[CB 142-146]. The IAA Submission included the following information:
(i) [The applicant] says that his name was on the voter list, something the case officer did not acknowledge, but that he did not vote as voting has to occur in one’s home area and he was in Dhaka and unable to return home because of insecurity. [“Voting Information”][CB, 142]
(ii) Moving to Dhaka was not permanent and that is why the dates vary. He went to help (not work for) his brother in 2002 and did so on and off throughout the following 8 years. The case officer has concluded that [the applicant] was in Dhaka primarily to work for his brother. I am instructed that he did not say this…. [Dhaka Information] [CB, 142]
(iii) The list of names did not include his own because they were the list of the Rockdale branch of the BNP Australia group. I am told there are 3 groups and [the applicant] is a member of the Lakemba branch. [Protest Information] [CB 143]
(iv) Political affiliation is a critical, survival tool in daily life in Bangladesh. Party membership provides a social network, protection and identity. Support for a political group is part of the Bengali culture. [Political Information] [CB 143]
Having to regard to the timetable put in place by orders made by a registrar, the applicant strictly required leave to rely upon the amended application. However, the Minister did not oppose leave being granted and I did not consider it necessary to make an order granting leave.
The only evidence I have before me is the court book filed on 23 April 2019.
Both the applicant and the Minister filed pre-hearing written submissions and made helpful oral submissions through their counsel at the trial of the matter on 13 September 2019. I have been assisted by those submissions.

Consideration

Ground One – did the Authority fail to consider integers of the applicant’s claims relating to police brutality?

In the applicant’s statutory declaration dated 9 November 2016,[18] the applicant made the claims referred to in the particulars of this ground (collectively the “Police Brutality Claim”). The Police Brutality Claim suggests that:
a)opposition politics against the Awami League is unsafe and the associated violence has escalated, leaving ordinary Bangladeshis helpless;
b)ability to get specific evidence of violence is frustrated by strict censorship and the power of the police to do as they please such that no one can do anything about police brutality; and
c)police brutality against BNP supporters is horrifying and no one can help the victims of such police brutality. The Authority is alleged to have failed to consider or address the Police Brutality Claim.
[18] CB 40-42
Essentially, the applicant’s contention under Ground One is that the Authority failed to consider certain integers of his claims, which were expressly articulated and “squarely” arose from the material before the Authority. Consequently, the Authority is said to have failed to exercise jurisdiction. It is the applicant’s submission that the Authority’s decision record neither deals with nor addresses the Police Brutality Claim, other than a reiteration of the claim in [15] of the decision.[19]
[19] CB 153
The fundamental criterion for the grant of a protection visa is contained in s.36(2)(a) of the Migration Act 1958 (Cth) (Migration Act), which provides that the applicant be a non-citizen in Australia in respect of whom, the Minister is satisfied Australia has protection obligations because the person is a refugee. A “refugee” is relevantly defined under s.5H of the Migration Act. Pursuant to s.5J(1)(b) of the Migration Act and for the purpose of ascertaining whether the applicant’s fear of persecution is “well-founded”, the Authority was required to determine whether there is a real chance that if the applicant returned to Sri Lanka, he would be persecuted for one or more of the Convention reasons in s.5J(1)(a).
In the decision record[20] the Authority accepted that:
a)the applicant’s uncle was a local BNP politician in Barisal;
b)the applicant was a BNP member between 2002 and 2006 when he was a ward press secretary;
c)the applicant may have received threatening calls when he was politically active with the BNP;
d)the applicant’s political involvement was primarily linked to his relative’s holding an influential local position in the BNP; and
e)in late 2006, persons politically opposed to his uncle, who had affiliations with the Sarbohara Party and the Awami League, attacked the house the applicant was sharing with his uncle.
[20] [17]-[19]; CB 154
In light of the particulars outlined above and the Authority’s findings as outlined above at [17], the applicant argues that the Authority was required to consider whether the applicant would be the subject of police brutality given his BNP membership and affiliation with the BNP as accepted by the Authority. The applicant submits that the Authority clearly failed to give “proper, realistic and genuine” consideration to the question whether there was a real chance that the applicant will suffer harm (in the form of police brutality) by reason of being a BNP supporter. The Authority failed to engage in a genuine and active intellectual manner with this integer of the applicant’s protection claim.[21]
[21] Khan v Minister for Immigration (1987) 14 ALD 291
The applicant asserts that the Authority failed to exercise jurisdiction by failing to consider whether there was a real chance that the applicant would suffer persecution arising from police brutality (because he is a BNP supporter), if he was returned to Bangladesh.
In SZTFI v Minister for Immigration[22] at [53], Perry J explained:
As I recently explained in SZTDY v Minister for Immigration and Border Protection [2015] FCA 303 at [38] with respect to the circumstances in which a failure to consider a contention will sound in such error:
A failure to consider a contention amounting to a failure by the Tribunal to exercise its jurisdiction will relevantly arise where there has been a failure to consider a “substantial, clearly articulated argument” that, if accepted, might establish a well-founded fear of persecution for a Convention reason (Dranichnikov v Minister for Immigration and Citizenship [2003] HCA 26; (2003) 197 ALR 389 at [24] (Gummow and Callinan JJ (Hayne J agreeing at [95])); Plaintiff M61/2010 v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319 at [90] (the Court); see also the helpful recent discussion of relevant principle in SZSSC v Minister for Immigration and Border Protection [2014] FCA 863; (2014) 142 ALD 150 at [81]-[82] (Griffiths J). Equally, there will be a constructive failure to exercise jurisdiction if the Tribunal fails to consider a claim, which “squarely” arises on the material before the Tribunal in the sense that “it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal”: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1 at [58] (the Court). In either case, the constructive failure to exercise jurisdiction may properly be seen as a failure to carry out the review required by s 414 of the Act: NABE at [55]; Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 at [42] (Allsop J with whom Spender J agreed at [1].
[22] [2015] FCA 322
Likewise in NABE v Minister for Immigration (No 2)[23] at [58] the Full Federal Court cited the following decisions:
The Tribunal is required to deal with the case raised by the material or evidence before it – Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157 at 180[114] (Merkel J). There is authority for the proposition that the Tribunal is not to limit its determination to the ‘case’ articulated by an applicant if evidence and material which it accepts raise a case not articulated – Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 63 (Merkel J); approved in Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at 293 – 294 (Wilcox and Madgwick JJ).”
[23] (2004) 144 FCR 1
In Htun v Minister for Immigration[24] at [42], Allsop J (as his Honour then was) noted:
The requirement to review the decision under s 414 of the Act requires the Tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration in the sense discussed in Minister for Aboriginal Affairs v Peko Wallsend (1986) 162 CLR 24; and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1
[24] (2001) 194 ALR 244
The applicant submits that, given the object of s.36(2)(a) and the task before the Authority, to conclude that it was not satisfied that the applicant was a person to whom Australia owed protection obligations without undertaking the necessary steps required by statute to consider the applicant’s express claims, was a complete failure to exercise jurisdiction, leading to jurisdictional error.
I prefer the Minister’s submissions in relation to this ground.
The proposition that the Authority failed to consider certain integers of the applicant’s claim relating to police brutality must be rejected. The Tribunal recognised the applicant’s reference to police brutality.[25] However, in circumstances where the claim was that police would target BNP supporters, this claim was subsumed in findings of greater generality by the Authority, that found the applicant to have only been a low-level supporter of the BNP in the past, and that he would not participate in BNP activities if he were to return to Bangladesh.[26] That was sufficient to dispose of the claim.
[25] [11] and [15]; CB 153
[26] Applicant WAEE v Minister for Immigration [2003] FCAFC 184 at [47]
Further, and in any event, the delegate did not separately consider any claim made by the applicant regarding police brutality, but no challenge to this oversight was raised in the applicant’s representative’s submission to the Authority.
The ground does not establish error by the Authority.

Ground Two – did the Authority err by failing to identify new information in the submission made on behalf of the applicant to the Authority?

Applicant’s contentions

Pursuant to Ground Two, the applicant asserts that in the Authority submission, he introduced four classes of information (as described in the particulars above) that were not before the delegate at the time of the decision, namely:
a)voting information;
b)Dhaka information;
c)protest information; and
d)political information.
The Authority found that the Authority submission restated some of the applicant’s claims that were before the delegate, addressed the delegate’s decision and issues arising and to the extent that it regarded the Authority submission as argument rather than information, the Authority considered it.[27] The applicant proceeds on the basis that the four classes of information constitute “new information” for the purpose of s.473DD and the Authority failed to consider the new information.
[27] [5]; CB 151
The term "new information" must be read to mean "information" (which may or may not be recorded in a document), in the ordinary sense of a communication of knowledge about some particular fact, subject or event which was not before the Minister or delegate at the time of making the decision to refuse to grant the protection visa and which the Authority considers may be relevant.[28] Paragraphs [3]–[5] of the decision[29] represents the totality of the Authority’s decision in relation to new information.
[28] Plaintiff M174/2016 v Minister for Immigration [2018] HCA 16 at [24]
[29] CB 151

In essence, the applicant contends that, with respect to new information included in the Authority submission, the Authority erred in its construction of s.473DD, as outlined below:
a)with respect to the voting information, the applicant sought to provide additional information to explain the reason he did not vote. In her decision, the delegate had stated “I note that the applicant did not obtain a National ID card or register to vote in the 2008 elections when he was eligible to do so”. Subsequently, the delegate found that the applicant was a low level member and supporter of the BNP.[30] Relevantly, the applicant contends that the voting information was new information, which was relevant to his case. He submits that the Authority was required to consider whether the voting information satisfied the requirement of the alternative limbs in subparagraphs (b)(i) or (b)(ii) of s.473DD and whether exceptional circumstances existed to justify consideration of the voting information. The Authority is said to have erred in (a) failing to consider and assess the voting information pursuant to s.473DD; and (b) classifying the voting information as argument, not information;
b)with respect to the Dhaka information, the applicant proceeds on the basis that the Dhaka information was information, which was not before the Minister or delegate at the time of making the decision to refuse to grant the protection visa and which the Authority considers may be relevant, and as such was new information. The delegate is said to have misstated the reason and circumstances surrounding the applicant’s move to Dhaka and had stated “Given the information currently before me I am unable to make a finding about when exactly the applicant moved to Dhaka”.[31] The applicant had advanced the Dhaka information to provide clarification on the reason and time period in which the applicant moved to Dhaka. The Authority is said to have erred in concluding that the Dhaka information was not information.[32] Consequently, the Authority is said to have failed to consider the Dhaka information pursuant to s.473DD and failed to state whether or not it was satisfied that there were exceptional circumstances to justify considering the Dhaka information; and
c)likewise, with respect to the protest information, the applicant proceeds on the basis that the protest information was a “particular fact, subject or event” which was not before the Minister or delegate at the time of making the decision to refuse to grant the protection visa and which the Authority considers may be relevant, and as such was new information. The delegate noted that at the SHEV interview, the applicant claimed that he participated in the protest against the Bangladeshi Prime Minister and the leader of the Awami League, Sheikh Hasina, when she visited Australia in April 2018.[33] Furthermore, the delegate noted that the applicant’s name was not on the list of persons who were at the protest as published in SBS news. Subsequently, the delegate found that it was not conclusive that the applicant attended the protest even though it was plausible that the applicant would participate in a protest against the Bangladeshi Prime Minister. Relevantly, the protest information was provided to clarify why the applicant’s name was not on the list. The Authority is said to have erred in concluding that the protest information was not new information.[34] Consequently, the Authority is said to have failed to consider the protest information pursuant to s.473DD and failed to state whether or not it was satisfied that there were exceptional circumstances to justify considering the protest information.
[30] CB 99
[31] CB 99
[32] [5]; CB 151
[33] CB 102
[34] [5], CB 151
Finally, to further buttress his BNP membership claims and provide insight on the reasons for political affiliation in Bangladesh, the applicant put forward the political information. The Authority is said to have failed to consider the political information pursuant to s.473DD.
Section 473DD imposes restrictions on when the Authority can consider new information. Pursuant to s.473DD, the Authority is precluded from considering new information unless it is satisfied of the matters in subparagraphs (a) and (b). The relevant principles with respect to the construction of s.473DD are outlined below.
In BVZ16 v Minister for Immigration[35] White J stated at [9]:
The requirements of subparas (a) and (b) are cumulative but may nevertheless overlap to some extent. The Authority’s satisfaction that the new information could not have been provided to the Minister at the time of the s 65 decision (subpara (b)(i)) may contribute to its satisfaction that there are exceptional circumstances to justify considering the new information. So also may the Authority’s satisfaction that the new information is credible personal information which had not previously been known (subpara (b)(ii)). Accordingly, one would expect the IAA to consider the subpara (b) matters when considering in a given case whether the circumstances are exceptional. Obviously enough, however, the matters which may contribute to a finding that the circumstances in a particular case are exceptional may extend beyond those specified in subparas (b)(i) and (ii) and it seems improbable that the Authority could be satisfied, by reference to one matter only, that an applicant’s circumstances are not exceptional.
(applicant’s emphasis retained)
[35] [2017] FCA 958
His Honour’s view was affirmed in Minister for Immigration v BBS16[36] at [102]–[103] (Kenny, Tracey and Griffiths JJ) and cited with apparent approval by the Full Federal Court in CHF16 v Minister for Immigration[37] at [17]–[18] (Gilmour, Robertson and Kerr JJ) and DYS16 v Minister for Immigration[38] at [31]–[33] (Tracey, Murphy and Kerr JJ). In BBS16 at [102] the Full Federal Court stated:
We are unpersuaded by the Minister’s contentions that in BVZ16 White J misconstrued or misapplied the term “exceptional circumstances” under s 473DD. We respectfully agree with his Honour’s reasons for concluding that the IAA in that case adopted an inappropriately narrow understanding of that phrase. In particular, we agree with his Honour’s findings and reasons that the requirements of subparas (a) and (b) of s 437DD are cumulative but may nevertheless overlap to some extent, with the effect that the IAA’s consideration of either or both of the limbs in subpara (b) may inform the IAA’s satisfaction under subpara (a) as to whether there are exceptional circumstances to justify considering the new information. That is not to say, however, that the matters in subparas (b)(i) and (ii) are the only matters to be considered by the IAA in determining whether it is satisfied that there are exceptional circumstances to justify considering any new information.
(applicant’s emphasis retained)
[36] (2017) 257 FCR 111
[37] (2017) 257 FCR 148
[38] (2018) 260 FCR 260
In CIH16 v Minister for Immigration[39] at [45] Derrington J noted:
The discussion by the Full Court identifies that there will be occasions when the satisfaction or non-satisfaction of the two limbs of s 473DD(b) will inform the determination of whether exceptional circumstances exist to warrant the consideration of new information. That appears to be self-evident. If the information in question has the characteristic that it could not have been provided to the Minister previously or is credible personal information not previously known that might affect the decision, it would, in nearly all scenarios, add to the conclusion that it is “out of the ordinary” or “unusual”. However, it is also clear that the wide scope of the expression “exceptional circumstances” means that it will not be necessary on every occasion to consider the criteria of the two limbs of s 473DD(b). This was made clear in AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111 (AQU17), which was a decision of the same Full Court that decided CQW17 and handed down the same day. In that case their Honours said:
[14] As the plurality in Plaintiff M174 made clear, what will amount to exceptional circumstances is inherently incapable of exhaustive statement. Each case will be different to every other case and must be treated on its merits and the matters for the Authority to take into consideration must necessarily vary from case to case. It is a misconception that the factors in s 473DD(b)(i) and (ii) of the Act must, in all cases, be considered by the Authority in deciding whether “exceptional circumstances” exist as s 473DD(b) does not codify what constitutes “exceptional circumstances”. Rather, s 473DD(b) sets out the further preconditions that must also be met before the Authority can consider the new information cumulatively upon the precondition set out in s 473DD(a): Plaintiff M174 at [31]. As BVZ16, BBS16 and CHF16 illustrate, in many cases consideration of the factors in ss 473DD(b)(i) and/or (ii) may assist the Authority in deciding whether or not it is satisfied that exceptional circumstances exist but whether those factors will have bearing upon that decision will depend on the particular case.
[39] [2018] FCA 1317
From the foregoing, the applicant submits that it can be inferred that in determining whether or not to have regard to new information the Authority must consider whether (a) exceptional circumstances exist; and (b) if the new information is proffered by the referred applicant, be satisfied that the applicant satisfies one of the alternative pre-conditions in s.473DD(b).
Consequently, the applicant submits that it was a failure to complete the exercise of jurisdiction required embarked on, in not dealing with reasons advanced by the applicant for the purpose of the assessment in s.473DD. The applicant relies on the authorities and arguments outlined above to conclude that failure to consider the new information provided by the applicant in the Authority submission pursuant to s.473DD amounts to failure to complete the task of jurisdiction embarked on, leading to jurisdictional error.

Minister’s contentions

The Minister seeks to avoid a finding of jurisdictional error in respect of this ground on the following bases.
Addressing first the voting information, this was raised by the applicant’s representative in the context of addressing a specific finding by the delegate that the applicant did not have a National ID card or register to vote in the 2008 elections when he was eligible to do so.[40] The delegate had relied upon this information in considering the applicant’s connection to the BNP after he started travelling to Dhaka. The Authority made no references in its decision to the applicant’s voter registration in 2008 as being indicative of a lack of political interest.[41] Having regard to its reasons for decision, there is said to be no basis upon which it could be inferred that the Authority considered that the voting information may be relevant. The Authority considered it to be argument directed towards an aspect of the delegate’s reasoning, which was plainly its intention. The applicant in his submission made no attempt to present the voting information as new factual material for consideration, or to seek to give an explanation as to why the information was not earlier revealed or why it was credible personal information. The Minister contends that the Authority was entitled to treat the information as it did.
[40] CB 99
[41] see [20]; CB 155
Similarly, in relation to the Dhaka information, this was an attempt by the applicant to address and respond to findings of the delegate concerning the applicant’s travel to Dhaka.[42] The significance for the delegate of the move to Dhaka was what motivated it. The delegate was not satisfied the applicant went to Dhaka to escape political persecution from the Awami League. The Minister submits that the Dhaka information did not actually address this finding. That the applicant went to Dhaka to help rather than work for his brother was of no significance to the delegate. Neither was it of any significance to the Authority, which relied on the applicant’s own evidence that he was infrequently involved with the BNP after 2006.[43] In any event the Authority appeared to accept the applicant’s submission that he travelled to Dhaka to “help” his brother.[44] The Minister submits that the Dhaka information was not “new information”. The Minister submits that the Authority did not err as contended.
[42] CB 99
[43] [20]; CB 155
[44] [18]; CB 154
In relation to the protest information, the applicant was responding to a finding by the delegate that he had not been included in a list of names of individuals who had been reported in a newspaper article to have attended the protest against the Bangladesh Prime Minister in 2018.[45] The Minister submits that the Authority may be inferred not to have considered the protest information to have been relevant because it accepted the applicant had attended the protest.[46]
[45] CB 102
[46] [24]; CB 156
In relation to the political information, having regard to the information in full, and in context[47] the Minister submits that this paragraph was a general submission about political affiliation in Bangladesh and was a challenge to the delegate’s decision. It did not contain or constitute “new information” as defined in Part 7AA.
[47] CB 143
To the extent that any of the above identified information were to be found by the Court to be new information for the purposes of Part 7AA, in light of the manner in which the Authority determined the review, notwithstanding any failure by the Authority properly to apply s.473DC and s.473DD of the Migration Act, the Minister contends that no jurisdictional error would arise because the applicant was not denied a realistic possibility of a successful outcome.[48]
[48] Minister for Immigration v SZMTA (2019) 93 ALJR 252

Resolution

In the second ground the applicant contends that the Authority erred in failing to consider new information provided by the applicant, and that it failed to consider the “explanations and reasons advanced by the applicant”. The applicant identifies four pieces of information said to have arisen from the applicant’s submission dated 27 November 2018.
In dealing with this ground, it is necessary to answer two questions. The first question is whether the Authority erred in failing to identify certain parts of the applicant’s submission to it as “new information” as that term is understood under ss.473DC and 473DD of the Migration Act. If the answer to that question is “no”, that is the end of the matter. If the answer to that question is “yes”, then the following question is whether the error was material.
Section 473DC is in the following terms:
(1)   Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information ( new information ) that:
(a)   were not before the Minister when the Minister made the decision under section 65; and
(b)   the Authority considers may be relevant.
(2)   The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(3)   Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a)   in writing; or
(b)at an interview, whether conducted in person, by telephone or in any other way.
Where new information is identified by the Authority, it cannot consider it without dealing with the requirements of s.473DD. I infer that the Authority did consider the whole submission, because it stated that it did at [5] of its decision.[49] If, therefore, the Authority was wrong in treating the whole submission (with the exception of certain country information) as argument rather than information, then it would have also erred by not considering the requirements of s.473DD.
[49] CB 151
This is not a subjective question for the Authority to determine. It is, ultimately, an objective question for the Court to determine. In a case like the present, it is not an easy question to answer because of the intermingling of argument with potential new facts. The courts have made clear, nevertheless, that in many cases it will be necessary for the Authority to separate new facts from argument in a submission.[50]
[50] DNA17 v Minister for Immigration [2019] FCAFC 146 at [38]
It is necessary then to consider the particular parts of the submission that the applicant contends were information rather than argument. There are four parts of the submission that are described as the “voter information”, the “Dhaka information”, the “protest information” and the “political information”.
The asserted information was as follows:
a)the voter information is set out in the delegate’s decision at CB 98-99 and is referred to in the Authority submission at CB 142;
b)the Dhaka information is set out at CB 99 in the delegate’s decision and is referred to in the Authority submission also at CB 142;
c)the protest information is set out in the delegate’s decision at CB 102 and is referred to in the Authority submission at CB 143; and
d)the political information was likewise referred to in the Authority submission at CB 143 based on claims previously made by the applicant of his BNP affiliation.
In DPH17 v Minister for Immigration & Anor[51] I stated at [45]-[47]:
[51] [2019] FCCA 2258
For present purposes it is important to note that it is now well established that, in dealing with a submission provided to the Authority, it will frequently be necessary for the Authority to separate argument from information.[52] Where information is identified in a submission, it will generally be necessary for the Authority to consider whether the information is “new” information as defined.
It seems to me that, leaving aside the lack of a distinction between claims and information, and focusing instead on the distinction between argument and information, as a general proposition in any case there are four possibilities for the Authority to consider when dealing with a submission:
a)there may be a reagitation of arguments previously put using information that was before the delegate;
b)new arguments responsive to the delegate’s decision may be raised which draw on information that was before the delegate;
c)a submission may take issue with findings by the delegate and seek to deploy information that was not before the delegate in order to respond to the delegate’s findings; or
d)the submission may raise an argument or claim that was not considered by the delegate and seek to support it by reference to information that was not before the delegate.
It may safely be assumed that example (a) above would not involve the provision of new information. Conversely, example (d) would involve the provision of new information. Example (b) would probably not involve the provision of new information but example (c) may do. A finding on whether or not it does will generally involve careful consideration.
[52] See DNA17 v Minister for Immigration [2019] FCAFC 146 at [38]
In my view, the present case is an example of the circumstance described at (b) above. The information in the submission was not new. It had been before the delegate. The applicant was simply engaging in argument over the way in which the delegate dealt with the information. The Authority was correct to treat the submission as merely argument.

Conclusion

The applicant has failed to establish that the decision of the Authority is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate:

Date: 18 October 2019