AKJ18 v Minister for Immigration - [2020] FCCA 3

FEDERAL CIRCUIT COURT OF AUSTRALIA

AKJ18 v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 3

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Iran – applicant’s fears found not to be well-founded – whether the applicant is an unauthorised maritime arrival and whether the Authority erred in considering whether to receive new information considered – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.5H, 36, 65, 473DD, 477

Cases cited:

AQU17 v Minister for Immigration [2018] FCAFC 111

BVZ16 v Minister for Immigration (2017) 254 FCR 221

CSR16 v Minister for Immigration [2018] FCA 474

CWW18 & Ors v Minister for Immigration & Anor [2020] FCCA 26

DLB17 v Minister for Immigration & Anor [2018] FCCA 1299

DLB17 v Minister for Immigration [2018] FCAFC 230

DYS16 v Minister for Immigration [2018] FCAFC 33

FFZ18 v Minister for Immigration & Anor [2020] FCCA 1

Hossain v Minister for Immigration (2018) 92 ALJR 780

Plaintiff M174/2016 v Minister for Immigration (2018) 353 ALR 600

Applicant:

AKJ18

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 218 of 2018

Judgment of:

Judge Driver

Hearing date:

28 November 2019

Delivered at:

Sydney

Delivered on:

24 March 2020

REPRESENTATION

Counsel for the Applicant:

Mr J Williams

Solicitors for the Applicant:

Barriston Lawyers

Counsel for the Respondents:

Mr G Johnson

Solicitors for the Respondents:

DLA Piper

ORDERS

The application as amended on 22 March 2019 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 218 of 2018

AKJ18

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND 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 24 November 2017. 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 Minister filed on 22 November 2018.
The applicant is a citizen of Iran who came to Australia in October 2012 and on 5 May 2016 made an application for a Safe Haven Enterprise Visa (SHEV). He claimed that he was born into a strict Shia Muslim family, and that he grew to resent the restrictions of his religion. He claimed to have encountered various incidents of discrimination including violence perpetrated against him for religious and political reasons, as he claimed also to have been involved in the 2009 presidential election campaign. He claimed that he had been informed by a friend at his work there was a warrant out for his arrest, and that since he came to Australia his wife had divorced him, that she had lost her job and that his son was harassed at school.
On 11 April 2017 the delegate refused to grant the applicant a SHEV.[1] On 19 April 2017 the applicant’s matter was referred to the Authority.[2] On 22 May 2017 the applicant, through his migration agent, sent an email to the Authority attaching a number of documents, including a divorce certificate, letters of support for the applicant from the Salvation Army, photographs of the applicant participating in Hillsong Church activities, and his baptism certificate.[3] On 29 May 2017 the applicant’s agent sent to the Authority further documents, including a submission addressing the delegate’s decision and raising new claims.[4]
[1] Court Book (CB) 151
[2] CB 172
[3] CB 183
[4] Supplementary Court Book

Authority’s decision

On 24 November 2017 the Authority affirmed the decision under review.[5]
[5] CB 201
The Authority considered the documents provided to it on 22 May 2017 and 29 May 2017.[6] The Authority found the divorce certificate not to be new information as it had been before the delegate.[7] It considered the remainder of the documents attached to the representative’s email to be new information.[8] The Authority declined to consider the new information by reference to s.473DD of the Migration Act 1958 (Cth) (Migration Act).
[6] [3]; CB 202
[7] [5]; CB 202
[8] [6]; CB 202
The Authority did not accept the applicant was of any adverse interest to the Iranian authorities for any reason when he departed Iran in 2013.[9] It was not satisfied he would engage in any political activities that would attract the interest of the authorities on return to Iran out of a lack of interest, rather than a fear of persecution.[10] The Authority was not satisfied the applicant faced a real chance of harm from the Mousavi during the 2009 presidential elections or because of his actual, or perceived, political and/or religious opinion or lack of Islamic practice because of his previous experiences during his employment with Gamma Company and the Pars Company.[11] The Authority noted the applicant had departed Iran on his own genuine passport, which was taken by the people smuggler, and that he may return on a temporary travel document and may be questioned on return.[12] The Authority was not satisfied the applicant would face a real chance of serious harm as a failed asylum seeker from Australia.
[9] [39]; CB 215
[10] [39]; CB 215
[11] [40]; CB 215
[12] [44]; CB 216
The Authority was not satisfied that the applicant met the requirements of the definition of refugee in s.5H(1) of the Migration Act.[13] Neither was it satisfied that he was entitled to complementary protection pursuant to s.36(2)(aa) of the Migration Act.[14]
[13] [46]; CB 216
[14] [51]; CB 217

The current proceedings

These proceedings began with a show cause application lodged on 28 January 2018. That was about four weeks outside the time prescribed under s.477(1) of the Migration Act. The applicant required an extension of time under s.477(2). I granted the extension of time on 29 November 2018 and also made further orders as to the filing of additional material. The applicant now relies upon an amended application dated 22 March 2019 and annexed to the affidavit of Behrooz Ehsani, the solicitor for the applicant. I granted leave for the applicant to file and rely upon that further amended application on 1 March 2019.
The grounds in that application as amended are:
Ground 1: The IAA erred by finding that there were not exceptional circumstances to justify consideration of new information regarding the submission dated 23 and 29 May 2018, pursuant to section 473DD(a) and (b) of the Migration Act 1958 (Cth)
1. The finding by the IAA at [3]-[17] that there were not “exceptional circumstances” to justify consideration of the “new information” regarding the “submission and a number of supporting documents” dated 23 and 29 May 2018, was affected by jurisdictional error for the following reasons.
(i) At [6], the IAA observed that the “submission raises new claims in regards to the applicant’s renunciation of Islam and his interest in Christianity and recent Christian conversion and provides a number of supporting documents including photos of the applicant during his volunteer work with the Salvation Army, a support letter from Major Colin Elkington of the Salvation Army, a photo of the applicant during his baptism and his baptism certificate, photos of the applicant attended various churches and a letter from the Australian Iranian Community Organisation.
(ii) The IAA erred at [12], by finding that “I am not satisfied there are exceptional circumstances to consider these new claims and the related new information and documents provided in support of these claims” pursuant to section 473DD(a) and (b)(ii).
(iii) The IAA failed to consider the requirements pursuant to section 473DD(a) of the Migration Act 1958 (Cth) in conjunction with the requirement pursuant to section 473DD(b)(i)(ii) of the Migration Act 1958 (Cth); and/or
(iv) There were exceptional circumstances to justify consideration of the “submission and a number of supporting documents” dated 23 and 29 May 2018 pursuant to section 473DD(a) of the Migration Act 1958 (Cth); and/or
(v) the “submission and a number of supporting documents” dated 23 and 29 May 2018 was not and could not have been provided to the Minister before the Minister made the decision under section 65 pursuant to section 473DD(b)(i) of the Migration Act 1958 (Cth); and/or
(vi) the IAA misapplied principle with regard to whether the … “submission and a number of supporting documents” dated 23 and 29 May 2018 was “credible personal information” pursuant to section 473DD(b)(ii) of the Migration Act 1958 (Cth); and/or
(vii) the IAA failed to take into account whether the “submission and a number of supporting documents” dated 23 and 29 May 2018, which was not previously known to the delegate and if it was known by the delegate, whether it would have affected the consideration of the applicant’s claims, pursuant to section 473DD(b)(ii) of the Migration Act 1958 (Cth).
(viii) In the premises, the IAA took an inappropriately narrow view of the breadth of the expression “exceptional circumstances” in section 473DD of the Migration Act 1958 (Cth). As a consequence, the review by the IAA pursuant to section 473CC of the Migration Act 1958 (Cth) miscarried by way of jurisdictional error.
Particulars
The new information dated 23 and 29 May 2018
a) At [3], the “IAA received a submission and number of documents on behalf of the applicant on 23 and 29 May 2017.”
b) At [6], the IAA observed that the “submission raises new claims in regards to the applicant’s renunciation of Islam and his interest in Christianity and recent Christian conversion and provides a number of supporting documents including photos of the applicant during his volunteer work with the Salvation Army, a support letter from Major Colin Elkington of the Salvation Army, a photo of the applicant during his baptism and his baptism certificate, photos of the applicant attending various churches and a letter from the Australian Iranian Community Organisation.” The IAA was “satisfied that the new information and documents discussed below in relation to his renunciation of Islam and conversion to Christianity is new information.”
c) At [7], the IAA observed the “submission claims that the applicant renounced Islam “a long time ago” and considered himself a Christian from 2013 but did not raise these claims before the Department because his former agent advised him not to as he had no supporting evidence and told him that departmental delegates do not believe claims of Christian conversion and such claims may undermine the legitimacy of their initial case. It claims the applicant was uncomfortable and fearful of insisting on his new claims in relation to his renunciation of Islam and conversion to Christianity due [to] the Muslim background of his former agent and the interpreter at the protection visa interview and was not aware of the code of conduct that they must abide by.”
d) At [8], the IAA observed that “[e]ven if I were to accept that the applicant was advised by his former agent not to raise these claims, I have significant concerns about he evidence the applicant has now provided in support of these new claims.
e) At [9], the IAA observed that the “submission further claims that, after moving to Sydney, the applicant visited a number of charity organisations and Churches and became close friends with a large number of Christian people. It claims he became an irregular member of Hillsong Church and visited them time to time with his friends.” The IAA observed that “I also note that the existence of these photos allegedly taken in August 2014 also contradicts the applicant’s claim that his former agent advised him not to raise his Christian conversion claim as he had no documentary evidence.”
f) At [10], the IAA observed that the “submission further claims that when the applicant moved to Sydney he went to the Salvation Army in Auburn in order to undertake a similar volunteer role with them but the position was taken and he started participating in the English classes and found a volunteer position with the library of the Australian Iranian Community Organisation.” The IAA observed that “I find the letter does not provide corroborative evidence in regards to the applicant’s claims of having renounced Islam and converted to Christianity.”
g) At [11], the IAA observed “[a]lthough I am satisfied the applicant was baptised at this church on this day, I have also given weight to the timing of the baptism which was within a few weeks of the delegate’s decision and little information has been provided in regards to why the applicant was not baptised earlier if he had been genuinely committed to Christianity for four years and consider the priority he gave his work commitments is indicative of someone who did not place much importance on his new faith. In the absence of any other supporting evidence referred to above, I do not accept that the applicant’s baptism is an indication of the genuineness of his Christian conversion.
Jurisdictional error
h) The IAA erred at [12] by finding there are exceptional circumstances to consider these new claims and the related new information and documents provided in support of these claims.
12. Although I accept that the applicant expressed an interest in Christianity in 2013 and learnt about the basic tenants of Christianity whilst volunteering for the Salvation Army, that he attended the Hillsong Church on one occasion and was baptised at the Liberty Baptist Church, overall, I find the evidence he has provided in support of his new claim to have genuinely renounced Islam and converted to Christianity is unconvincing and I do not consider these claims to be credible but rather have been fabricated for the purpose of his protection visa application. For these reasons I am not satisfied there are exceptional circumstances to consider these new claims and the related new information and documents provided in support of these claims.
Ground 2: The respondents failed to follow procedures required by law
2. The decision by the IAA is vitiated by jurisdictional error as the applicant was not an “unauthorised maritime arrival” (UMA) as defined by section 5AA of the Migration Act 1958 (Cth) and therefore was not “fast track applicant” as defined by section 5 of the Migration Act 1958 (Cth). As a consequence, the applicant was not notified of the decision made by the delegate to the Minister on 11 April 2017 pursuant to section 66 of the Migration Act 1958 (Cth).
Particulars
a) On 2 March 2013, the applicant departed Iran by plane for Indonesia.
b) On 15 March 2013, the applicant left Indonesia for Australia by boat and shortly after, the boat was intercepted by the Australian Navy.
c) The applicant was first detained on board a vessel belonging to the Commonwealth of Australia, carrying the flag of the Commonwealth of Australia, which is registered to Canberra, as the Australian Capital Territory (ACT) of the Commonwealth of Australia.
d) At the relevant time that the boat was intercepted, neither the vessel belonging to the Commonwealth of Australia or the ACT were excised offshore places as defined by section 5 of the Migration Act 1958 (Cth).
e) On 18 March 2013, the applicant arrived at Christmas Island.
f) The port on Christmas Island was declared a port on 22 January 1981. Section 3 of the Migration Amendment Act (No 2) 1980 (Cth), which provided the power to proclaim a port on Christmas Island, came into effect a day later, on 23 January 1981. As a consequence, the purported appointment of a port as a proclaimed port, in respect of an area of waters within the Territory of Christmas Island, by notice published in the Commonwealth of Australia Gazette on 22 January 1981, is invalid.
a) At [1], the IAA observed that the “referred applicant (the applicant) claims to be a citizen of Iran. On 5 May 2016 he lodged an application for a Safe Haven Enterprise Visa (application for protection). On 11 April 2017 a delegate of the Minister for Immigration and Border Protection (the delegate) refused the grant of the visa.”
b) The applicant was not a “UMA” and was not a fast track reviewable person. As a consequence, the applicant was not notified of the decision by the delegate to the Minister made on 11 April 2017 pursuant to section 66 of the Migration Act 1958 (Cth).
In addition to the court book filed on 29 March 2018, I have before me as evidence the affidavit of Mr Ehsani referred to above, and a later affidavit by Mr Ehsani made on 25 November 2019.
I also received the affidavit of Kay Lynn Ng made on 1 March 2019. In that affidavit, Ms Ng deposes as to the circumstances of the applicant’s arrival at Christmas Island.
A supplementary court book was also filed on 21 November 2018.
At the trial of this matter on 28 November 2019, counsel for the applicant sought an adjournment having regard to other proceedings relating to the status of the declared port at Christmas Island. I declined that adjournment application but ordered that the parties have the opportunity to make post hearing submissions following the delivery of judgment in a related matter.[15] The common issue in those two cases and in a third matter CWW18 & Ors v Minister for Immigration & Anor[16] concerns the question whether the applicant is a “fast track applicant”.
[15] FFZ18 v Minister for Immigration & Anor [2020] FCCA 1. Nothing further was filed in response to that decision
[16] [2020] FCCA 26

Consideration

In CWW18 I rejected an identical argument as put in these proceedings in respect of Ground 2. I reject Ground 2 in the present proceedings for the same reasons as I rejected Ground 1 in CWW18.
The remaining ground (Ground 1) concerns the question of whether the Authority erred in its application of s.473DD of the Migration Act in respect of new information. I agree with the Minister’s submissions relating to this issue.
The applicant contends that the Authority erred by finding that there were not exceptional circumstances to justify consideration of new information under s.473DD of the Migration Act. The applicant focusses upon the Authority’s conclusions expressed at [12] that it was not satisfied there were exceptional circumstances to consider the new claims raised by the applicant in his submission dated 29 May 2017 and the documents provided in support of the claims, being the documents provided by the applicant through his agent by email dated 22 May 2017 and summarised by the Authority at [6].[17]
[17] CB 202
The applicant asserts that at [12] of the Authority’s reasons its finding regarding exceptional circumstances was made pursuant to s.473DD(a) and (b)(ii). This is a mischaracterisation of the Authority’s reasons. The Authority was plainly in this paragraph expressing its conclusions only in respect of s.473DD(a). This is not to suggest that the Authority did not, in the preceding paragraphs addressing particular documents provided by the applicant, express findings along the way directed towards the requirements under s.473DD(b). However, the conclusions expressed at [12] were made in respect of the requirement under s.473DD(a).
The applicant submits that the Authority failed to consider the requirements of s.473DD(a) “in conjunction with” the requirements under s.473DD(b)(i) and (ii). However, binding authority makes it clear, as the applicant acknowledges elsewhere in his submissions, that the requirements of s.473DD(a) and (b) are cumulative.[18] That is, it is not in all cases necessary for the Authority to address s.473DD(b) factors when determining whether exceptional circumstances exist under s.473DD(a).[19]
[18] Plaintiff M174/2016 v Minister for Immigration (2018) 353 ALR 600
[19] AQU17 v Minister for Immigration [2018] FCAFC 111 at [14]

The applicant submits that there were exceptional circumstances to justify consideration of the claims and documents, although he does not articulate what these circumstances were. In any event, it is necessary for the applicant to establish that the Authority misconstrued s.473DD, not to invite the Court to engage in the assessment required of the Authority.
The applicant submits that the claims and documents were not and could not have been provided to the Minister before the Minister made the decision under s.65 of the Migration Act. That may or may not be the case. The Authority expressed findings under s.473DD(b)(i) in respect of certain documents provided.[20] However, it was unnecessary for the Authority to make express findings under s.473DD(b)(i).[21]
[20] see for instance at [8] and [10]; CB 202-204
[21] AQU17 at [16]
The applicant asserts that the Authority misapplied the principle in respect of s.473DD(b)(ii). The applicant does not specify in respect of what information the Authority is said to have erred. Suffice to say that the Authority at [12] expressed its conclusions with respect to s.473DD(a), and absent an error in the Authority’s approach to that provision, no jurisdictional error is made out. This is so even if the Authority made an error in some respect under s.473DD(b)(ii), yet it is unclear how it is said that the Authority so erred, as any such error would be immaterial to the decision.[22] By reference to the Authority’s reasoning at [12] it could scarcely be suggested that the Authority is prevented from forming a view as to the credibility or believability of a new claim in the course of determining whether exceptional circumstances exist under s.473DD(a). There is no authority against this proposition.
[22] Hossain v Minister for Immigration (2018) 92 ALJR 780
The applicant submits that the Authority took an “inappropriately narrow view of the breadth of the expression ‘exceptional circumstances’”. To the extent in making this submission the applicant attempts to invoke the kind of error identified in a very different factual context in BVZ16 v Minister for Immigration.[23] No such error arises here. The Federal Court found in BVZ16 that the “inappropriately narrow understanding” taken by the Authority in that case of the expression “exceptional circumstances” arose because the Authority had confined its consideration of whether there were exceptional circumstances to the evaluation of the appellant’s explanation for not having provided the information earlier. The Authority’s clear and detailed reasons here stand in stark contrast.
[23] (2017) 254 FCR 221
To the extent that what can be taken from the applicant’s submissions is that the Authority misconstrued s.473DD in a manner akin to the error identified in CSR16 v Minister for Immigration,[24] that argument should be rejected.[25] In CSR16 Bromberg J held at [43] that the Authority had:
…determined that the ‘new information’ that the appellants sought to have it consider did not meet the s.473DD(b)(ii) criteria by imposing a higher standard of satisfaction than the criteria requires. The Authority required satisfaction that the ‘new information’ was true when all that the s.473DD(b)(ii) criteria requires is the Authority’s satisfaction that the new information is capable of being believed at the deliberative stage of the Authority’s review. In so doing the Authority misconstrued s 473DD(b)(ii) and misconceived what the exercise of its statutory power entailed.’
[24] [2018] FCA 474
[25] It is the Minister's formal submission that CSR16 was wrongly decided but he concedes that that decision is binding on this Court.
To this end CSR16 is distinguishable, on the basis that in CSR16 the Federal Court expressed binding views as to the effect and operation of s.473DD(b)(ii), and in particular the meaning to be ascribed to the word “credible” as it appears in that sub-paragraph. This was in a context where the Authority, as the Court noted at [34], did not make any express findings in respect of s.473DD(a). By contrast, in the present case the Authority did make findings in respect of s.473DD(a). Put another way, the Federal Court in CSR16 said nothing about the correct approach to interpreting and applying s.473DD(a), which is the main issue in the present matter.
The same distinction was drawn by this Court in the matter of DLB17 v Minister for Immigration.[26] That case is on point, and plainly correct (or is at least not plainly incorrect and for that reason should as a matter of comity be followed in this matter). In particular, the Court was correct in the view expressed at [43] that whether the Authority accepts the credibility of new information is relevant to the question of whether there are exceptional circumstances for the purposes of s.473DD(a). It is to be recalled that the notion of “exceptional circumstances” is of wide ambit, and not subject to exhaustive definition.[27]
[26] [2018] FCCA 1299. The decision in DLB17 was affirmed on appeal by the Full Federal Court in DLB17 v Minister for Immigration [2018] FCAFC 230
[27] Plaintiff M174/2016
As submitted above, as the paragraphs in s.473DD are cumulative, any error that might have arisen in respect of s.473DD(b) would not undermine the Authority’s conclusions in respect of s.473DD(a), unless the Authority could be shown to have misconstrued paragraph (a). The applicant has not established that it is contrary to a correct understanding of s.473DD for the Authority to take into account in determining whether exceptional circumstances exist that a new claim or new evidence advanced by an applicant is not credible. It was open to the Authority to draw the conclusions it did in respect of the new information advanced by the applicant.
Further, to the extent the applicant relies upon DYS16 v Minister for Immigration[28] it is unclear how that case advances the applicant’s position having regard to the findings of the Authority in this case. The meaning of “credible” as it appears in s.473DD(b)(ii) did not arise for consideration in that matter.
[28] [2018] FCAFC 33
The Minister addresses in his submissions one issue raised by me at the extension of time hearing. The issue raised was whether there was some point in which the Authority’s consideration of new information at [6]-[17] of its decision record stopped being in respect of s.473DD and developed into a consideration of the substantive issues.
For the following reasons I accept that the Authority did not fall into error in considering whether it could consider the new information.
First, the Authority considered at [7] whether to take into account the applicant’s new claim that he had renounced Islam and converted to Christianity. This claim was supported by documents, some of which post-dated the delegate’s decision.[29] At [12], after quite detailed consideration of the claim and the supporting documents, the Authority concluded it was not satisfied there were exceptional circumstances justifying consideration of the new claims and related information. The Authority then considered at [13] whether it could consider a new claim relating to accusations made by the applicant’s ex-wife to the Iranian authorities. The Authority concluded that it was not satisfied the information could not have been given to the delegate, or that it was credible personal information, or that exceptional circumstances existed justifying consideration of the information. Further, at [14] the Authority was not satisfied there were exceptional circumstances to consider new information being clarification in relation to photos of the applicant in western style dress. At [15] the Authority considered a new claim that the applicant was employed on a contract position with the Pars Company. The Authority was not satisfied of any of the matters in s.473DD in respect of this information. The Authority came to similar conclusions in respect of the information it addressed at [16], relating to his military service, and at [17], relating to an incident in 2001 where local workers attacked foreign workers at a project site on which he was working, and where he helped the foreign workers escape thus attracting adverse attention from the Sepah and Basij.
[29] [8]; CB 202-203
In light of the fact that in respect of all of the new information advanced by the applicant for consideration, the Authority found at least that it was not satisfied there were exceptional circumstances, as noted above, this matter is distinguishable from CSR16. As the requirements to be satisfied under paragraphs (a) and (b) of s.473DD are cumulative,[30] there would be no jurisdictional error unless (at least) the Authority erred in relation to its findings of a lack of exceptional circumstances.
[30] Plaintiff M174/2016
In DLB17 the issue on the appeal was whether the Authority misconstrued or misapplied the test in s.473DD of the Migration Act in making a decision not to have regard to certain “new information” advanced by the appellant in support of his claims. The Authority in that case, in considering the existence of exceptional circumstances under s.473DD(a), assessed the veracity of new claims against the claims as earlier advanced by the appellant, and at one point identified a contradiction between the claims and the previously made claims.
In considering whether the Authority had erred in its approach to s.473DD, the Full Federal Court held at [22]:
In this case, the Authority said that it had considered the question of exceptional circumstances by reference to “all the circumstances”: see Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; (2017) 257 FCR 111 per Kenny, Tracey and Griffiths JJ (at [104]). The Authority was not obliged to articulate its reasoning in any greater detail: CVS16 v Minister for Immigration and Border Protection [2018] FCA 951 per Bromwich J (at [25]-[30] and the citations therein cited). The assessment of exceptional circumstances does not require the Authority, in all cases, to consider the matters relevant to the criterion in s 473DD(b)(ii): AQU17 (at [14]). The Authority is, however, permitted to consider these matters, including by assessing whether the information is credible: AQU17 (at [16]). Even if the credibility of information for the purposes of s 473DD(b)(ii) is to be assessed at the lower threshold suggested by the primary judge (that is that the new information is arguable), there is no prohibition on the Authority going further when considering the requirement for exceptional circumstances. That is, the Authority may, even if it accepts a contention to be arguable, test it so as to consider for itself whether it is satisfied as to the truth of the new information. Any suggestion to the contrary would be inconsistent with the decision in Plaintiff M174/2016 and the purposely broad range of considerations relevant to the establishment of exceptional circumstances.
For the same reasons I accept that there was no error by the Authority in the present case in its analysis of the new claims and information sought to be advanced by the applicant. It was open to the Authority to take into account the matters it identified as part of the relevant circumstances for the purposes of the assessment under s.473DD(a) of the Migration Act.

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 thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate:

Date: 24 March 2020