ALI18 v Minister for Immigration
[2019] FCCA 2257
•2 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ALI18 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2257 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Afghanistan – Authority finding that the applicant could relocate to Mazar-e-Sharif – whether relocation reasonable and whether the Authority erred in considering new information considered – jurisdictional error established in the relocation assessment. |
| Legislation: Acts Interpretation Act 1901 (Cth), ss.2, 33 |
| Cases cited: AQU17 v Minister for Immigration (2018) 162 ALD 442 MZYXP v Minister for Immigration [2013] FCA 1352 |
| Applicant: | ALI18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 354 of 2018 |
| Judgment of: | Judge Driver |
| Hearing date: | 16 August 2019 |
| Delivered at: | Sydney |
| Delivered on: | 2 October 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr A Byrne |
| Solicitors for the Applicant: | D'Ambra Murphy Lawyers |
| Counsel for the Respondents: | Ms K Hooper |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The title of the first respondent is amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
A writ of certiorari shall issue removing the record of the Immigration Assessment Authority decision made on 12 January 2018 into this Court for the purpose of quashing it.
A writ of mandamus shall issue requiring the Immigration Assessment Authority to redetermine according to law the review referred to it.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 354 of 2018
| ALI18 |
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 12 January 2018. The Authority affirmed a decision of the 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 male citizen of Afghanistan. He arrived in Australia on 6 May 2013 at Christmas Island as an unauthorised maritime arrival.[1] On 30 January 2017, the applicant applied for a SHEV.[2] The applicant’s claims in support of the visa application are set out in a statutory declaration commencing at CB 78. The applicant is a Hazara Shia, in his early 30s, from the district of Jalrez, Wardak province, in Afghanistan.[3] From 2009 to 2013, he worked as a taxi driver, transporting passengers between Jalrez and Kabul, and while doing so:[4]
a)the applicant was frequently stopped, questioned, kicked and his car and passengers searched by the Taliban;
b)the Taliban would threaten him, demanding that he bring to them any passengers who worked for the government, and indicating that, if he disobeyed, he would be harmed; and
c)on one occasion the applicant was stopped by the Taliban and kicked because his hair was too long.
[1] Court Book (CB) 89, 197, 244
[2] Safe Haven Enterprise Visa
[3] CB 246 at [16]
[4] CB 247 at [20]; CB 249 at [32]-[33]
In around February 2013, when the applicant was in Kabul, three Taliban members went to his family home in the district of Jalrez and told his mother that he had been transporting government workers.[5] The applicant’s mother told him that the Taliban were after him and that, if he returned, he would be killed. He thus became fearful that it was not safe in Afghanistan and organised to travel to Australia.[6]
[5] CB 247-248 at [24]-[25]
[6] CB 247-248 at [21], [24]-[25]
In around May 2017, the applicant’s mother was shot and admitted to a hospital in Kabul for treatment. She had since been discharged from the hospital but her condition was deteriorating.[7]
[7] CB 247 at [17]-[18]
In his statutory declaration, the applicant addressed the proposition that he could internally relocate within Afghanistan, as follows:[8]
23. I cannot relocate within Afghanistan because the Taliban are influential everywhere in the country even in Kabul where the central government is located.
24. I do not have anyone willing to help me for fear of retaliation from the Taliban or protect me from Daesh and other Sunni extremist groups.
[8] CB 80
On 28 May 2017, the applicant’s representative wrote to the Minister’s Department and asked that consideration be given to expediting the applicant’s interview.[9] The representative wrote:
We write on behalf of our abovementioned client to request your utmost consideration in expediting his IMA interview date in order to be able to travel to India to be his mother who was shot in Maidan Shahar in Afghanistan to be treated.
His mother has already been discharged from a Kabul hospital but her conditions is deteriorating. Our client is planning to have his mother traveled to India where he will meet her.
(errors in original)
[9] CB 117
By letter dated 13 June 2017, the applicant was invited to attend an interview scheduled for 27 June 2017, in relation to his SHEV application.[10]
[10] CB 121
By email dated 24 June 2017, the applicant provided two forms notifying of incorrect answers in his SHEV application. Relevantly, the second of those two forms[11] stated that the applicant’s brother had come back to Afghanistan temporarily to look after the applicant’s mother.
[11] at CB 128
On 5 July 2017, the delegate refused to grant the applicant a SHEV.[12] The delegate, relevantly, set out details of members of the applicant’s family,[13] including identifying members of his family who lived in Kabul. Those family members included the applicant’s sister and her husband and his family. The delegate recorded the applicant having stated that his mother lived occasionally with two of his sisters, who lived in Kabul.[14]
[12] CB 197
[13] CB 200
[14] CB 200
The delegate’s refusal of the visa application turned on his findings that the applicant could reasonably relocate to both of Kabul and Mazar-e-Sharif. The delegate set out the matters articulated by the applicant at interview, in opposition to such findings.[15] They concerned, in summary, the dangerousness of the entirety of Afghanistan, insecurity in Kabul, the applicant’s ethnicity and faith in relation to relocation to Kabul, the presence of the Taliban in Western Kabul, members of the Taliban having the potential to locate the applicant in Kabul and punish him for his prior work as a taxi driver, and the presence of spies working around Afghanistan who would report to the Taliban about the applicant’s status as a returnee from a Western country.[16]
[15] from CB 202
[16] CB 203
The delegate’s decision records that the applicant was asked whether there were any factors that would impact his ability to live in Mazar-e-Sharif.[17] The applicant stated in response that:
the Governor of Balkh province recently stated that Mazar-e Sharif is a city which is about to collapse because it has been besieged by the Taliban. The applicant mentioned Kunduz city, of Kunduz province, having been attacked by the Taliban. The applicant noted the general security situation of Mazar-e Sharif is deteriorating.
[17] CB 203
The delegate’s decision also indicates that the applicant raised, in the context of his potential relocation to Mazar-e-Sharif, concerns about his ethnicity and faith, the security situation, and the Taliban presence in Mazar-e-Sharif.[18]
[18] CB 204
The delegate’s decision was referred for review by the Authority on 11 July 2017.[19]
[19] CB 221
By letter sent by email on 11 July 2017,[20] the Authority wrote to the applicant informing him of the referral. Enclosed with the Authority’s correspondence were an information brochure and the Authority’s “Practice Direction for Applicants, Representatives and Authorised Recipients” (Practice Direction).
[20] CB 220
Relevantly, the Authority’s information brochure informed the applicant that the Authority aims to complete most reviews within six weeks.[21] The information brochure also explained the circumstances in which the Authority was permitted to consider new information,[22] and that if the applicant wanted the Authority to consider new information, he needed to provide an explanation as to why it:
• could not have been provided to the department before it made the decision to refuse you a protection visa, or
• is credible personal information that, had it been known to the department, may have affected the department's decision.
[21] CB 223
[22] CB 224
The Authority’s Practice Direction similarly informed the applicant of the limited circumstances in which the Authority was permitted to consider new information, and stated at [24]-[25]:[23]
[23] CB 231
If you want to give us new information, you must also provide an explanation in writing as to why:
• the information could not have been given to the Department before the decision was made, or
• the information is credible personal information which was not previously known and may have affected consideration of your claims, had it been known.
Your explanation should be no longer than 5 pages and must accompany any new information you give to us. If you provide to us, or refer in your submission to any new information, your explanation must specify why that new information is relevant to the review.
The Authority’s Practice Direction prescribed for the purposes of s.473HF(1)(a) of the Migration Act 1958 (Cth) (Migration Act) the methods of giving to it a “document or thing”, as follows:[24]
[24] CB 232
Giving documents to the IAA
32. Where possible, you should give us documents by emailing them to: [email protected].
33. For the purposes of section 473HF(1)(a) of the Migration Act, if you are required or permitted to give us a document or thing, you may do so by one of the following methods:
• by emailing it to: [email protected]; or
• by posting it to: GPO Box 9955, Sydney NSW 2001.
On 17 July 2017,[25] 7 August 2017,[26] 9 November 2017[27] and 27 December 2017[28] the applicant contacted the Authority apparently for the purposes of enquiring as to the status of the review and confirming his address for correspondence.
[25] CB 234
[26] CB 235
[27] CB 237
[28] CB 238
On 12 January 2018, the Authority made its decision, affirming the decision of the delegate not to grant the applicant a SHEV.
The Authority stated, at [3]-[4] of its reasons, that it had regard to the material given to it by the Secretary under s.473CB and that “[n]o further information has been obtained or received from the applicant”.
The Authority reasoned, in summary and relevantly, that:
a)aspects of the applicant’s factual claims, concerning interest in the applicant by the Taliban, were fabricated;[29]
b)the Authority accepted that between 2009 and 2013, when working as a taxi driver, the applicant on a number of unspecified occasions was stopped, questioned, and physically assaulted by the Taliban,[30] however it did not accept that these matters indicated the applicant would be of adverse interest to the Taliban on his return to Afghanistan;[31]
c)the Authority was satisfied that the events involving the Taliban were isolated, and had occurred over four years ago. It was not satisfied that the circumstances arising from the applicant’s former work as a taxi driver, the past events involving the Taliban, and the applicant’s non-compliance with the Taliban’s demands, gave rise to a well-founded fear of future harm on the applicant’s return or in the reasonably foreseeable future;[32]
d)the Authority accepted that there was more than a remote chance of the applicant facing serious harm amounting to persecution as a Hazara in the district of Jalrez, if the applicant attempted to return there;[33]
e)the real chance of persecution to the applicant in the district of Jalrez did not relate to all areas of Afghanistan. Specifically, there was no real chance of serious harm to the applicant in Mazar-e-Sharif.[34] The Authority was satisfied, having regard to the security presence in Mazar-e-Sharif, the limited capacity of Islamic State, the passage of time since the last attack in Mazar-e-Sharif and the focus of other insurgent groups including the Taliban, and the applicant’s own profile, that there was not more than a remote chance of harm to the applicant in Mazar-e-Sharif;[35]
f)the Authority was not satisfied that the applicant would face a real chance of serious harm on the basis of his being a Hazara Shia returnee from a Western country, any actual or imputed pro-Western political opinion, or that he would be considered a spy, infidel, or non-believer, on his return to Mazar-e-Sharif now or in the reasonably foreseeable future;[36]
g)the Authority did not accept that the applicant faced a real chance of harm through generalised violence or for any other reason, in or in accessing Mazar-e-Sharif;[37]
h)with respect to the complementary protection criterion, the Authority considered the issue of relocation by the applicant to Mazar-e-Sharif. The Authority structured its reasons by reference to matters going to whether there was a real risk of significant harm to the applicant in Mazar-e-Sharif,[38] and matters going to the reasonableness of relocation in light of the applicant’s circumstances;[39]
i)in assessing the former matter, the Authority found at [75][40] that the risk to the applicant of generalised violence in Mazar-e-Sharif was remote; and
j)having regard to the totality of the evidence and the factors it discussed from [76][41] and following, which included the general security situation and harm not constituting significant harm[42] the Authority concluded that it was reasonable for the applicant to relocate to Mazar-e-Sharif.
[29] at CB 248-249 at [30]-[31]
[30] at CB 249 at [32]
[31] CB 249 at [33]
[32] at CB 249 at [34]
[33] CB 250 at [40]
[34] CB 250 at [41]-[42]
[35] CB 251 at [49]
[36] CB 253 at [60]
[37] CB 253-254 at [61]-[64]
[38] CB 255 at [72]-[75]
[39] CB 255-257 at [76]-[84]
[40] CB 255
[41] CB 255
[42] CB 257 at [83]-[84]
The current proceedings
These proceedings began with a show cause application lodged on 9 February 2018. At the trial of this matter on 16 August 2019, the applicant sought and was granted orally (without objection by the Minister) leave to file and rely upon a further amended application. There are six grounds in that application but only Grounds 3, 4 and 6 were pressed. Those grounds are:
3. In applying the relocation test in s.36(2B)(a) of the Act, the Respondent fell into jurisdictional error by failing to take into consideration, in determining whether it would be reasonable for the Applicant to relocate, the personal circumstances of the Applicant.
4. In applying the relocation test in s.36(2B)(a) of the Act, the Respondent fell into jurisdictional error by failing to take into consideration, in determining whether it would be reasonable for the Applicant to relocate, the likelihood that, if returned to Afghanistan, the Applicant will in fact travel to Wardak or Kabul province to care for his ailing mother.
Particulars – Ground 3 and 4
(a)Section 36(2B)(a) requires consideration of the subjective personal circumstances of the Applicant.
(b)Significant personal circumstances of the Applicant (in respect of which the Respondent was on notice) included:
(i) The Applicant's family, including his mother, being located Wardak province or Kabul province;
(ii) The Applicant’s mother’s having been shot in Maiden Shahar (Wardak province) in 2017, and hospitalised in Kabul (Kabul province);
(iii) The grave condition of the Applicant's mother's health;
(iv) The Applicant's desire to look after his mother.
(c)In deciding that it would be reasonable for the Applicant to relocate for the purposes of s.36(2B)(a). the Respondent's analysis reveals that the Respondent failed to take into account the circumstances in (b).
(d) In this way, the Respondent failed properly to consider whether it would be reasonable for the Applicant to relocate to Mazar-e-Sharif.
6.The IAA failed to discharge its statutory function under s 473DD by overlooking, and failing to consider, new information.
Particulars
a. The delegate of the Department of Immigration and Home Affairs found, as at July 2017, that "the applicant is an adult male of working age and there is no evidence that he has any health problems or any identified specific vulnerabilities” (CB213);
b. On 9 November 2017, as recorded in an IAA Case File Note (CB237), the applicant stated that “he has back pain”. That was ‘new information’ for the purposes of s 473DD.
c. At [4] (CB244) in the IAA Decision, the IAA found at [4] that: “No further information has been obtained or received from the applicant”. That was an error; see particular (b).
d. The IAA was required to consider the new information for the purposes of considering whether it fell within the statutory exception in s 473DD to the “primary rule” (s 473DC).
f. The error was material. For example, the IAA stated at IAA Decision [81] (CB256) that: “I am satisfied that the applicant is an able-bodied man of working age with no identified vulnerabilities”.
The only evidence I have before me is the book of relevant documents filed on 9 April 2018.
Both the applicant and the Minister prepared helpful pre-hearing written submissions which were augmented orally at the trial. I gave counsel for the applicant the opportunity to make post-hearing submissions in relation to the Full Federal Court decision in Minister for Immigration v DZU16[43] and related authorities. The solicitor for the applicant advised the Court on 20 August 2019 that that opportunity would not be taken up.
Consideration
Grounds 3 and 4 – did the Authority err in considering whether it would be reasonable for the applicant to relocate to Mazar-e-Sharif for the purposes of s.36(2B)(a) of the Migration Act?
[43] [2018] FCAFC 32
Applicant’s contentions
Grounds 3 and 4 are concerned with the Authority’s asserted failure, in applying s.36(2B)(a) of the Migration Act, to consider significant subjective personal circumstances of the applicant including, in particular, as relate to his sick mother.
In CRI026 v The Republic of Nauru,[44] the High Court considered the issue of the reasonableness of relocation when assessing a claim for complementary protection under the Refugees Convention Act 2012 of the Republic of Nauru, by reference to authorities decided in relation to refugee claims prior to the introduction of s.5J of the Migration Act, including citing at [39] the observation of Gummow, Hayne and Crennan JJ in SZATV v Minister for Immigration[45] at [27] in relation to a claim for refugee protection:
What is 'reasonable', in the sense of 'practicable', must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality.
[44] [2018] HCA 19
[45] (2007) 233 CLR 18
The High Court stated at [39]:
Accordingly, depending on the issues and circumstances identified by the applicant, the decision maker not only will need reliable information as to the safety and suitability of the place of relocation but also will need to pay careful regard to the applicant's personal and family circumstances. It is only when and if the decision maker concludes on that basis that internal relocation would be reasonable that the claim for complementary protection may be rejected on that basis.
(applicant’s emphasis retained)
The Authority accepted that the applicant’s mother had been shot and was admitted to a hospital in Kabul[46] and also noted the applicant’s claim that, although she has been discharged from hospital, his mother's condition was deteriorating.[47] However, the Authority paid no regard to the circumstances of the applicant’s mother when considering if it would be reasonable for the applicant to relocate to Mazar-e-Sharif. For example, it did not consider whether the health of his mother was such that it would be unreasonable to expect him to relocate to Mazar-e-Sharif, and not seek to visit his mother in Jalrez (or Kabul).
[46] CB 247 at [18]
[47] CB 247 at [17]
In CRI026 at [40], the High Court made it clear that each case “is fact specific and must be dealt with accordingly”. This position is consistent with the fact sensitive analysis endorsed by the Full Federal Court in CSO15 v Minister for Immigration[48] at [48]. The circumstances of the applicant’s mother were relevant to that enquiry, and were facts before the Authority. The Authority’s failure to consider them in the context of the reasonableness of relocation amounted to jurisdictional error, with the Authority failing to discharge its statutory function.
[48] [2018] FCAFC 14
Minister’s contentions
Ground 3 alleges that the Authority failed to consider the applicant’s “personal circumstances” in applying s.36(2B)(a). Ground 4 alleges that the Authority failed to consider, in assessing reasonableness, the likelihood that the applicant will travel to Wardak or Kabul province to care for his ailing mother.
In SZATV at [24], the plurality held that “[w]hat is ‘reasonable’, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation”. Application of the internal relocation principle depends upon the framework set by an applicant’s particular objections to relocation. Within that framework, the decision-maker is required to determine objectively whether relocation is open, but to conduct that inquiry circumscribed by the applicant’s particular objections.[49]
[49] MZYXP v Minister for Immigration [2013] FCA 1352 at [61]
The Minister contends that there was no error by the Authority in limiting its consideration of the applicant’s mother’s circumstances to that appearing at [17]-[18][50] of its reasons.
[50] CB 247
The circumstances of the applicant’s mother as at 28 May 2017[51] arose in the context of an inquiry by the applicant’s representative as to whether the applicant’s interview with the Minister’s Department could be expedited, so as to permit the applicant to travel to India to visit his mother. The applicant was represented at that stage of the visa application process. No submission whatsoever was advanced that the applicant’s mother’s future circumstances and the applicant’s potential future need to travel to care for his mother, were of relevance to the reasonableness of the applicant’s relocation within Afghanistan. The information before the Authority disclosed that a number of members of the applicant’s family were resident in Kabul, and two of those family members were available to, and did, care for the applicant’s mother in Kabul. The applicant’s need to travel to India to visit his mother was a matter of historical significance only.
[51] CB 117
To construe the material before the Authority as squarely articulating a claim that, relevant to the reasonableness of the applicant’s relocation to Mazar-e-Sharif was his need in the future to travel to Kabul to care for his mother, necessitates a significant and impermissible degree of constructive or creative activity.[52] The Minister contends that no jurisdictional error is demonstrated by Grounds 3 and 4 of the application.
[52] NABE v Minister for Immigration (No.2)[2004] FCAFC 263; (2004) 144 FCR 1 at 19 [58]; NAVK v Minister for Immigration [2004] FCA 1695 at [15]
Resolution
The Authority dealt with the circumstances of the applicant’s mother in the following terms at [17]-[18]:[53]
On the 28 May 2017, the applicant's representative sent an email to the Department requesting that consideration be given to expediting the applicant's protection visa interview in order for the applicant to "travel to India to be with his mother who was shot in Maiden Shahar in Afghanistan to be treated". The applicant's mother "has already been discharged from a Kabul hospital but her condition is deteriorating". The applicant is "planning to have his mother travel to India where he will meet her".
I accept the applicant's mother was shot and was admitted to a hospital in Kabul for treatment. The applicant has not claimed nor is there any evidence before me that the events involving his mother have any connection to the applicant's claims and I am satisfied that these events will not have any repercussions for the applicant on his return.
[53] CB 247
As to the reasonableness of relocation, for the purposes of the complementary protection assessment, the Authority stated this at [76]-[78]:[54]
I have considered whether it is reasonable for the applicant to relocate to Mazar-e-Sharif. The applicant has provided information on this issue in his protection visa application, statement and interview and in the representative's submissions to the Department. I have taken all of this information into account.
In UNHCR's opinion relocation is reasonable only where the individual has access to shelter, essential services (sanitation, health care, education) and livelihood opportunities, and a traditional support network of members of his or her (extended) family or members of his or her larger ethnic community. Traditional extended family and tribal community structures of Afghan society are the main protection and coping mechanisms for people in Afghanistan, who rely on these networks for their safety and economic survival, including access to accommodation and an adequate level of subsistence.[55]
UNHCR advises that there are exceptions to the requirement of external support, being, single able bodied men and married couples of working age without identified specific vulnerabilities. UNHCR considers that such persons may, in certain circumstances, be able to subsist without family and community support in urban and semi-urban areas that have the necessary infrastructure and livelihood opportunities to meet the basic necessities of life and that are under effective Government control (as Mazar-e-Sharif] is).[56] DFAT also assesses internal relocation is generally more successful for single men of working age - provided they are able to make use of family or tribal networks. DFAT has stated that a lack of financial resources and lack of employment opportunities are the greatest constraints on successful internal relocation and that unemployment and underemployment are high across Afghanistan.[57]
[54] CB 255-256
[55] DFAT, "DFAT Country Information Report Afghanistan 18 September 2017", 18 September 2017, CISEDB50AD5680.
[56] UNHCR, "UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Afghanistan", 19 April 2016, UN6C8EFBB3.
[57] DFAT, "DFAT Thematic Report Hazaras in Afghanistan 2015-16 update", 8 February 2016, CIS38A8012186.
At [82][58] the Authority considered the impact of the applicant having a number of immediate family members living in Kabul and the circumstance that he may be, to some degree, financially responsible for them. The Authority noted that the applicant would be arriving in Mazar-e-Sharif unaccompanied without dependents and saw this as a positive.
[58] CB 257
There was no consideration by the Authority of the applicant’s emotional needs to see his family in Kabul and, more particularly, as asserted by the applicant, whether it would be reasonable for the applicant to be isolated from his mother, in particular, having accepted that she had been shot and was remained unwell. This was, to my mind, no small matter and required consideration in order to assess the reasonableness of relocation. It was, in my view, no answer for the Authority to say that the applicant had made no specific claims concerning the implications for him of his mother’s circumstances and, in my view, the issue squarely arose on the available material as to whether it would be reasonable for the applicant to relocate to a place where he would be isolated from his mother. The applicant had apparently taken the trouble to go to India to see his mother who was then receiving medical attention which, on any view, demonstrated a filial sense of responsibility and concern. The psychological impact of isolation on the applicant needed to be taken into account in considering the reasonableness of relocation. It was not and the omission goes to jurisdiction.
The applicant should receive the relief he seeks.
Ground 6 – did the Authority fail to appreciate and consider “new information”?
Applicant’s contentions
Section 473DD of the Migration Act states:
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.
The High Court held, in Plaintiff M174/2016 v Minister for Immigration[59] at [24] that the term “new information” must be read consistently when used in ss.473DC and 473DD “as limited to ‘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, that meets the two conditions set out in s.473DC(1)(a) and (b)”.
[59] (2018) 92 ALJR 481
Adopting that approach, the Full Federal Court in BYA17 v Minister for Immigration[60] recently stated at [55]-[57] in relation to new information (news reports) that was provided to the Authority but not referred to in its "fast track" decision:
... in our view the IAA’s failure to make any reference to the news reports in its reasons, coupled with its detailed consideration of the other new information on which the appellants sought to rely, entitles an inference to be drawn that it did not consider the news reports either in the exercise of its functions under s 473DD or in arriving at its substantive decision: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at 346 [69] (McHugh, Gummow and Hayne JJ). In other words, these considerations provide a proper basis for inferring on the balance of probabilities that the IAA “... failed in the discharge of [its] exact function according to law”, being to form a state of satisfaction under s 473DD in respect of whether it should have considered the information in the news reports and, if satisfied that they should be considered in the review, to consider them: cf Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; (1949) 78 CLR 353 at 360 (Dixon J).
In the event that the Court so found, subject to the questions raised by the amended notice of contention which we consider below, the Minister accepted that the IAA was required to consider the information for the purposes of considering whether it fell within the statutory exception in s 473DD to the “primary rule” excluding new information.
Finally, it should be borne in mind that absent satisfaction of the criteria in s 473DD, the review of a fast track reviewable decision under Part 7AA is limited to the material before the Minister at the time that she or he made the initial decision. As such, a decision on whether to consider new information is a decision about the very scope and nature of the review decision. By contrast, Part 7-reviewable decisions are subject to full merits review by the Tribunal including a hearing with the Tribunal, which must make the correct or preferable decision at the time that it makes its decision on the material before it, including evidence of relevant, supervening events: Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 at [47]- [51] (Kirby J), [98]-[101] (Hayne and Heydon JJ) and [140]-[142] (Kiefel J (with whose reasons on this issue Crennan J agreed at [117])). Absent any mention therefore by the IAA of an applicant’s request for new information to be taken into account, an applicant would be left entirely in the dark as to whether even the very limited statutory rules of procedural fairness applicable to the fast track review were complied with by the IAA.
(applicant’s emphasis retained)
[60] [2019] FCAFC 44
The same jurisdictional error is said to have occurred here.
As indicated in the particulars of the new ground, information was provided to the Authority on 9 November 2017[61] (after the delegate had made his decision on 5 July 2017[62]) that the applicant had "back pain". This is said to be "new information" for the purposes of s.473DD, the delegate having earlier found (in July 2017) that "the applicant is an adult male of working age and there is no evidence that he has any health problems or any identified specific vulnerabilities".[63]
[61] CB 237
[62] CB194-219
[63] CB 213
The applicant contends that, as this was "new information", the Authority was obliged to give consideration to that new information in determining the scope and nature of its review decision.[64] The Authority decision, however, discloses that the Authority overlooked that information completely ("No further information has been obtained or received from the applicant"[65]). The new information is said to have also been material, best illustrated by the finding of the Authority[66] that it was satisfied that the applicant "is an able-bodied man of working age with no identified vulnerabilities" in the context of considering complementary protection and relocation.
[64] see BYA17 at [55]-[57]
[65] CB 244 at [4]
[66] CB 256 at [81]
Accordingly, the applicant contends that the Authority fell into jurisdictional error by failing to discharge is statutory function under s.473DD by overlooking, and failing to consider, new information presented by the applicant.
Minister’s contentions
Section 473DD of the Migration Act imposes a statutory prohibition on the Authority considering “new information” (as defined by s.473DC(1)). That prohibition applies unless there are exceptional circumstances that justify considering the new information and the new information meets one of the requirements of either s.473DD(b)(i) or (ii) of the Act; ss.473DD(a) and (b) impose cumulative requirements.[67]
[67] see Plaintiff M174 at [29]-[31] (Gageler, Keane and Nettle JJ) and at [88] (Gordon J); BRA16 v Minister for Immigration [2018] FCA 127 at [26]; AQU17 v Minister for Immigration (2018) 162 ALD 442 at [13]; Minister for Immigration v CQW17 (2018) 162 ALD 427 at [36]
As noted above at [42], in Plaintiff M174/2016, Gageler, Keane and Nettle JJ considered the meaning of the term “new information”. Their Honours held at [24] that:
The term "new information" must be read consistently when used in ss 473DC, 473DD and 473DE as limited to "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 [SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2; (2006) 150 FCR 214 at 259 [205]], that meets the two conditions set out in s 473DC(1)(a) and (b). The first is that the information was not before the Minister or delegate at the time of making the decision to refuse to grant the protection visa. The second is that the Authority considers that the information may be relevant.
In ESQ17 v Minister for Immigration[68] Stewart J held, at [58]-[59]:
From the above, it is clear that information that was not before the delegate, but which was then submitted by the appellant to the Authority, was rightly categorised as “new information” by the Authority if the Authority considered it to be relevant. If the information was not relevant, then the Authority made no error in not considering it. If it was considered as relevant, then it was new information, and the Authority was then correct to consider whether the preconditions to considering it in s 473DD were met.
As indicated, information in this context is in the ordinary sense of a communication of knowledge about some particular fact, subject or event. The word “information” has been taken as referring to knowledge of relevant facts or circumstances communicated to, or received by, the relevant decision-maker: SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2; 150 FCR 214 at [205] per Allsop J. There is nothing to suggest that what is “new”, as a qualifier to “information”, is to be assessed or determined with reference to whether the issue that it is relevant to is a new or a pre-existing issue. To the contrary, it is clear from the text of s 473DC(1) and the treatment of it in Plaintiff M174, that information may be “new” in relation to a pre-existing issue.
(Minister’s emphasis retained)
[68] [2019] FCA 826
A failure by the Authority to appreciate that material before it constitutes “new information” can give rise to a jurisdictional error,[69] provided such failure is material to the Authority’s discharge of its review function. Addressing the question of materiality requires consideration of whether the absence of the error could have resulted in the making of a different decision.[70]
[69] BYA17
[70] Hossain v Minister for Immigration (2018) 359 ALR 1 at [31] per Kiefel CJ, Gageler and Keane JJ
The Minister submits that there was no “new information” as defined by s.473DC(1), before the Authority.
The Minister contends that the applicant did not convey to the Authority knowledge of any “relevant” fact or circumstance. The applicant referred to his having back pain in the context of enquiring as to the progress of his review which, by that stage, had been on foot for a period of some months. There is nothing in the case note, viewed objectively, which supports a conclusion that the applicant referred to his back pain in the context of it having any relevance whatsoever to the Authority’s decision on the review, let alone to an assessment of the precise issue of the reasonableness of relocation by the applicant to Mazar-e-Sharif. This conclusion is supported by reference to the failure on the part of the applicant to advance any submissions directed to the matters identified in s.473DD of the Migration Act, as he had been informed of what was required of him by the Authority’s Practice Direction at [24].[71]
[71] CB 231
The Minister submits that it is apparent that the Authority did not regard the matter communicated by the applicant as recorded in the case note (or indeed any of the other case notes) as constituting “information”.[72] That was, objectively, correct; the matters communicated by the applicant orally by telephone as recorded in the case notes went to administrative issues such as the timing of the Authority’s decision, and the Authority’s record of the applicant’s address and name. It is evident from the content of the case notes, and their number, that the applicant was experiencing a degree of anxiety as to the progress and outcome of his review. It was in that context that the applicant referred the Authority to his having back pain and not having a lawyer. The case note at CB 238 supports such a conclusion; the applicant there referred to his Medicare card having expired, and the Authority’s officer informed the applicant that a letter could be sent to him for provision to Medicare.
[72] CB 244 at [4]
The Minister submits that nothing in the applicant’s oral communications constituted “new information” within the meaning of s.473DC(1). They did not contain “information”, nor did they contain information considered by the Authority to be relevant.
The Minister makes the following two submissions, further and in the alternative to his primary submissions above.
First, on the assumption that what the applicant conveyed orally to the Authority as recorded in its case note at CB 237 contained, objectively, “new information” within s.473DC(1), it was not incumbent on the Authority to consider that new information in circumstances where the applicant did not comply with s.473HF(1)(a).
An applicant may put to the Authority new information, as defined, and request that the Authority consider that new information by reference to the requirements in s.473DD of the Migration Act. However, where an applicant is required or permitted to give a document or thing to the Authority, as is the case with respect to the provision of new information, that applicant “must” do so by a method set out in a direction under s.473FB.[73]
[73] section 473HF(1)(a)
The Authority’s Practice Direction at [33] stipulates that this may be done by email or by postal correspondence. Although the Practice Direction is administrative and not legislative in its character,[74] any presumption that the term “may” confers discretion[75] on an applicant is displaced by implication when the terms of the Practice Direction are read in their proper context, including in the context of the mandatory language in s.473HF(1)(a).
[74] DGZ16 v Minister for Immigration & Anor [2017] FCCA 623; appeal dismissed in DGZ16 v Minister for Immigration (2018) 258 FCR 551
[75] Acts Interpretation Act 1901 (Cth), ss.33(2A) and 2(2)
The term “may”, where used in the Practice Direction at [33] means that it is permissible for an applicant to correspond with the Authority by the means identified, not that an applicant is at large to communicate with the Authority by any means of their choosing. It was not, therefore, compliant with the requirements of the Practice Direction and s.473HF(1)(a) for the applicant to endeavour to put before the Authority new information, orally in a telephone conversation with (apparently) an officer of the Authority. That new information was not properly before the Authority, such that it was obliged to consider the application of s.473DD to it.
Further, where an applicant does not comply with the requirements of the Authority’s Practice Direction, here as to the method of communication,[76] as to the provision of a submission directed to s.473DD[77] and as to the timeframe within which new information must be given,[78] the Authority is not obliged to consider new information put to it.[79]
[76] Practice Direction CB 232 at [33]
[77] Practice Direction CB 231 at [24]
[78] Practice Direction CB 232 at [28]
[79] section 473FB(5); AST18 v Minister for Home Affairs & Anor [2018] FCCA 1990 at [24]–[26]; DHV16 v Minister for Immigration & Anor[2018] FCCA 349 at [97]
In these circumstances, the Authority was under no obligation to consider the new information.
Secondly, the applicant has not demonstrated that any error by the Authority was material. The fact of the Authority not considering whether the oral communication as to the applicant’s back pain satisfied the criteria in s.473DD could have had no impact on the Authority’s decision. The applicant made no attempt whatsoever to address his onus of satisfying the Authority as to s.473DD(1)(b) and there was no evidence before the Authority bearing on s.473DD(1)(a). The communication amounted to no more than a bare statement by the applicant, absent any medical evidence corroborating the applicant’s statement and identifying relevant matters such as a diagnosis, the severity of any condition, and its future prognosis.
Resolution
I prefer the Minister’s submissions on this ground.
In particular, s.473FB of the Migration Act is in the following terms:
(1) The President may, in writing, issue directions, not inconsistent with this Act or the regulations as to:
(a) the operations of the Immigration Assessment Authority; and
(b) the conduct of reviews by the Authority.
(2) Without limiting subsection (1), the directions may:
(a) relate to the application of efficient processing practices in the conduct of reviews by the Immigration Assessment Authority; or
(b) set out procedures to be followed by persons giving new information to the Authority in writing or at interview.
(3)The Immigration Assessment Authority must, as far as practicable, comply with the directions. However, non-compliance with any direction does not mean that the Authority's decision on a review is an invalid decision.
(4) If the Immigration Assessment Authority deals with a review of a decision in a way that complies with the directions, the Authority is not required to take any other action in dealing with the review.
(5) The Immigration Assessment Authority is not required to accept new information or documents from a person, or to hear or continue to hear a person at an interview, if the person fails to comply with a relevant direction that applies to the person.
I have previously found that s.473FB(5) creates an anterior discretion to the considerations dealt with under s.473DD.[80] It follows that there is no obligation on the Authority to embark on the consideration required by s.473DD in circumstances where an applicant fails to comply with a relevant direction.
[80] DHV16 at [97]; see also footnote 79 above
As noted by the Minister, the Authority’s Practice Direction at [33] stipulates that new information is to be provided to the Authority by email or by postal correspondence.
The information in question was provided in a telephone call to the Authority on 9 November 2017 in the context of the applicant seeking an update on his case. Among other things, there was a reference to him having back pain and not having a lawyer and him being anxious about the outcome of his case before the Authority.
It is exceedingly unlikely that this simple communication was intended to be, and was, the proffering of new information by the applicant in relation to any claim for protection. Even if it was, however, the Authority was under no obligation to:
a)consider whether the information was new information for the purposes of either ss.473DC or 473DD; or
b)give any consideration to the matters stipulated in s.473DD.
That is because the information was not provided in accordance with a requirement in the Authority’s Practice Direction and s.473FB relieved the Authority of any obligation to accept (or consider accepting) the hypothetical new information.
Conclusion
The applicant has succeeded in establishing that the decision of the Authority is affected by jurisdictional error. I will order that the decision be quashed and the matter remitted to the Authority for further consideration.
I will hear the parties as to costs.
I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 2 October 2019
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