ALJ18 v Minister for Immigration
[2018] FCCA 3835
•21 December 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ALJ18 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3835 |
| Catchwords: MIGRATION – Protection visa application – review of decision of Immigration Assessment Authority – whether the IAA erred in failing to consider “new information” – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 5J, 36, 46A, 65, 473DA(1), 473DC, 473DD, 473GA, 473GB |
| Cases cited: BRA16 v Minister for Immigration and Border Protection [2018] FCA 127 |
| Applicant: | ALJ18 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 59 of 2018 |
| Judgment of: | Judge Kendall |
| Hearing date: | 19 September 2018 |
| Date of Last Submission: | 19 September 2018 |
| Delivered at: | Perth |
| Delivered on: | 21 December 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr R. Saul-Jahnke |
| Solicitors for the Applicant: | Estrin Saul Lawyers |
| Counsel for the First Respondent: | Ms S. Oliver |
| Solicitors for the First Respondent: | Sparke Helmore Lawyers |
| The Second Respondent: | Submitting appearance save as to costs |
ORDERS
The applicant’s originating application filed on 31 January 2018 and amended on 6 September 2018 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 59 of 2018
| ALJ18 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application filed on 31 January 2018, amended on 6 September 2018, the applicant seeks judicial review of a decision of the Immigration Assessment Authority (the “IAA”) made on 17 January 2018.
The IAA refused the applicant’s application for a Safe Haven Enterprise visa (“SHEV”).
In support of his application before this Court, the applicant raised one ground of review. Broadly, he argued that the IAA had erred in relation to its task under s.473DD(b)(ii) of the Migration Act 1958 (Cth) (the “Act”) by misapplying the requirement that any ‘new information’ be ‘credible personal information’.
Background
The procedural and factual background to these proceedings is relatively uncontentious. Having reviewed all of the material before it, including a detailed Court Book (“CB”) spanning 207 pages, the Court adopts the background facts outlined by the applicant at paragraph 3 to 9 in his written submissions dated 13 September 2018. These background facts are, relevantly, as follows.
The applicant is a citizen of Afghanistan who arrived as an unauthorised maritime arrival at Christmas Island on 7 May 2013 (CB 51).
On 31 May 2016, the Department of Immigration advised the applicant that the bar pursuant to s.46A of the Act had been lifted. The applicant was then invited to apply for a Temporary Protection (Subclass 785) visa (“TPV”) (CB 25). On 19 September 2016, the applicant applied for a TPV (CB 31).
The applicant attended an interview with the delegate on 27 January 2017 (CB 92). On 7 February 2017, the applicant advised that he wished to withdraw the TPV application and replace it with a SHEV application (CB 95; 101).
On 7 February 2017, the applicant submitted a SHEV application (CB 108), together with a statutory declaration dated 2 January 2017 (CB 147).
The applicant’s claims were set out in statutory declarations accompanying his TPV application (CB 69 (dated 17 August 2016)) and his SHEV application (CB 147 (dated 2 January 2017)) and can be summarised as follows:
a)He is a Hazara and Shia Muslim.
b)From 2009 he worked as a taxi driver taking passengers between Nilee and Dasht.
c)In 2013 he was taking a passenger to the area of Tamazon when he was stopped by three armed Taliban members at a roadblock. His passenger was taken and he was beaten. The next day he received a death threat from the family of the passenger, who were also members of the Taliban, and was accused of being an informant. He found out that his passenger had been targeted due to internal conflict within the Taliban.
On 31 March 2017, a Ministerial delegate refused to grant the applicant the SHEV (CB 165).
On 4 April 2017, the delegate’s decision was referred to the IAA for review under Part 7AA of the Act (CB 176).
On 1 May 2017, the applicant provided written submissions to the IAA (CB 181).
On 17 January 2018, the IAA affirmed the delegate’s decision (CB 188).
IAA’s Decision
The IAA’s decision appears in the Court Book at pages 188 to 203.
Relevantly, the IAA:
a)noted that the applicant had provided a submission (the “Submission”) containing the following new claims (CB 189) at [3]):
i)the applicant had been stopped by the Taliban in 2009 when he was transporting livestock for his butcher shop. Approximately $2000 in livestock was taken. The applicant was severely beaten and left by the road to die; and
ii)the applicant’s brother-in-law was killed by the Taliban in May 2013. His car was stopped in Jarliz. The applicant’s brother-in-law and another passenger were killed. He found out about this while in detention on Christmas Island.
(“the New Claims”)
b)addressed the New Claims, observing (at CB 189 [4] – [7]):
4.Each of these new claims predates the delegate’s decision by a considerable period. He was advised about the importance of raising full and complete claims, and it was well within the applicant’s control to raise these claims in his earlier written and oral evidence. He was assisted in the preparation of his visa application by his representative, and was given opportunities to raise his claims during the visa interview. In that context, I consider the failure to put forward these claims at an earlier point raises questions as to whether they are credible.
5. In terms of his claim that he was beaten, the applicant advanced specific claims about the incident involving the Taliban in 2013. In that context, his failure to raise claims relating to other issues he had with the Taliban, including a claim that he was beaten and left for dead in 2009, is concerning. I note that this claim was not raised in the arrival interview, the visa application or the visa interview before the delegate.
6.In terms of the claim that his brother-in-law was killed by the Taliban in May 2013, I note the applicant was specifically asked about his sisters in the interview. He confirmed they lived in Dasht, and that their husbands lived in Iran. He confirmed his wife has two brothers and three sisters. He stated that one of the brothers was in Dasht, and the other was in Iran. He did not advance a claim that his brother-in-law was murdered by the Taliban in 2013.
7.In the circumstances, I am not satisfied these claims are credible personal information, and given his failure to raise these claims at an earlier point in this application, I am not satisfied there are exceptional circumstances that justify the IAA considering the new information and claims.
c)was not satisfied the New Claims were credible personal information and, given the applicant’s failure to raise these claims at an earlier point in this application, was not satisfied there were exceptional circumstances that justified the IAA considering the new information and claims.
d)noted that the applicant’s Submission contained minor points of clarification in relation to the applicant’s existing claims and references to new country information (CB 189-190 at [8] and [10]). The IAA was satisfied there were exceptional circumstances to justify consideration of the points of clarification and the new country information (CB 190 at [8] and [11]).
e)summarised the applicant’s protection claims as follows (CB 190-191 at [13]):
i)He is a citizen of Afghanistan and a member of the Hazara ethnic group. He is a Shia Muslim.
ii)He fears returning to Afghanistan because he would be persecuted due to his Hazara ethnicity, his Shia Islam faith, and an imputed political view that he is someone opposed to the Taliban.
iii)Since 2009 the applicant was a taxi driver, taking passengers in and around his home area near Nili in Daykundi Province.
iv)In 2013, he picked up a passenger who asked to be taken to the area of Tamazan. This area has a mixed Hazara and Pashtun population and the applicant usually avoided going there, but agreed to on this occasion.
v)Shortly before they arrived at the destination, they were stopped by three armed men at a roadblock. The men were wearing black clothing and had headscarves covering their faces. They spoke Pashto. The applicant realised they were from the Taliban.
vi)The men jumped in the car and put it over. He soon realised that he was not the target, but his passenger. The applicant was beaten and left there. The Taliban took his passenger. He did not know who his passenger was at the time. The passenger was killed.
vii)He managed to drive back to Nili. He told others at the taxi rank what had happened to him. The next day he received a death threat from the family of the passenger. After they found out who the driver of the taxi was, they accused the applicant of being an informant.
viii)He later found out his passenger was also from the Taliban, and that he was targeted due to an internal conflict within the group.
ix)The people who were after the applicant were Talib Pashtuns. They believe the applicant handed their family member (the passenger) over to the Taliban.
x)The applicant also fears being killed by the Taliban if he is sent back to Afghanistan for seeking protection in a Western country and adopting a foreign culture.
xi)The Taliban persecute and kill Hazara people because of their ethnicity and religion. His facial features, and his name, define him as a Hazara person, and would only be a matter of time before he was killed or seriously injured.
xii)There is no area in Afghanistan that he would be safe. He does not believe the authorities in Afghanistan can protect him if he returns. There are many Hazaras being killed every day and the government cannot do anything to stop these killings. The authorities either are with the Taliban or are scared of them.
f)found that the applicant’s claims, in relation to the incident in his home area in Daykundi in or around 2013 while he was working as a taxi driver, was not credible and did not accept that the incident occurred. The IAA gave reasons for this finding at [19] – [35] of its reasons for decision.
g)noted that the applicant claims to fear harm from the Taliban, Islamic State, and other groups, on the basis of his ethnic and religious background as a Shia Hazara, and on the basis of an imputed profile or political opinion against those groups because of his ethnic and religious background (CB 194 -195 at [36]) but, having considered the relevant country information (CB 195 at [37]-[42]), found that there is not a real chance of the applicant being harmed on the basis of his ethnic and religious profile in his home area, whether by Islamic State Khorasan Province (“ISKP”) or any other person or group;
h)accepted that the applicant may face some societal or official discrimination in areas where Hazaras are not in the majority but found that it would be low level and infrequent.
i)accepted that:
i)Hazaras may be underrepresented in senior government, but did not consider this impacts on the applicant in any material way (CB 196 at [47]);
ii)some division between groups continues to exist but the IAA was not satisfied it would threaten the applicant’s capacity to subsist, or otherwise constitute serious harm (CB 196 at [47]),
but found that the applicant would be returning to a Hazara dominant province, Daykundi, and in that context, the chance or risk of discrimination for reasons of his ethnicity, religion or related profile is likely to be even more remote (CB 196 at [47]);
j)found there was not a real chance of the applicant being seriously harmed by the Taliban, ISKP or any other person or group, whether in relation to the claimed abduction in 2012, or for reasons relating to his religion, ethnicity, any actual or imputed political opinion, or any related profile (CB 196-197 at [48]);
k)did not accept the applicant’s specific claims in relation to his profile and road security, but did accept the applicant was a taxi driver and that this was his most recent occupation.
l)considered the relevant country information relating road security in the applicant’s home province of Daykundi and the surrounding provinces (CB 197 at [50] to [54]) and concluded that:
i)if the applicant were to return to his employment as a taxi driver he would spend considerable periods on the roads in his home area (CB 198 at [55]);
ii)the applicant has no connections with the government, security forces or the international community, and was satisfied he would not be targeted for these reasons if he was stopped on the roads (CB 198 at [56]);
iii)there is also nothing else about the applicant’s profile that would suggest he would be targeted for other reasons, such as other past conflicts with other communities, or tensions in relation to land access (CB 198 at [56]); and
iv)there was only remote chance that the applicant would be stopped by an insurgent group and be at risk of abduction or other serious harm due to his ethnic, religious or any other actual or imputed profile in the roads in his home area (CB 198 -199 at [56]);
m)was satisfied, in terms of the applicant’s employment and travels on the roads, that he could take reasonable steps to modify his conduct to avoid any future chance or risk of harm by either not taking taxi jobs that take him out of the secure situation in Daykundi, or he could seek to find more secure work that would not require him to travel on the roads (CB 199 at [57]);
n)did not consider there was a real chance or risk of the applicant being seriously harmed during his brief stay in Kabul prior to travelling to his home area (CB 199 at [59]) or on the road from Kabul to his home area (CB 199-200 at [60]-[61]).
o)noted the applicant’s claims to fear persecution related to his time in Australia and that he fears harm on the basis that he sought asylum in the west, and would be seen to have adopted a foreign/western culture.
p)considered the relevant country information (CB 200-201 at [64] and [65]) and concluded that the applicant’s links to the west and Australia are limited and of relatively short duration, and in the context of widespread migration (estimated to be in the millions) from Afghanistan between the west, Iran and Pakistan over the last two decades the applicant’s profile is likely to be unremarkable and not uncommon (CB 201 at [65]).
q)was not satisfied there is a real chance of the applicant being seriously harmed on the basis that he sought asylum in a western country, adopted a foreign (western) culture, or through any other related opinion or profile;
r)accepted there are security risks in Daykundi but, when having regard to:
i)the applicant’s lack of any profile or proximity to those with a risk profile;
ii)the lack of advice to suggest that a person with the applicant’s profile would be at a real chance or real risk of harm, even in a cumulative sense; and
iii)the comparatively favourable security assessment within Daykundi,
found the chance or risk of the applicant being seriously harmed in generalised or insurgent violence within his home area to be remote even though credible.
s)ultimately concluded, in relation to the remote chance of the applicant being harmed in generalised violence, that s.5J(1)(a) and 5J(4)(a) of the Act would also not be satisfied;
t)found that the applicant did not meet the requirements of the definition of refugee in s.5H(1) of the Act and did not meet s.36(2)(a) of the Act;
u)considered whether the applicant met the criterion for complementary protection, namely whether there were substantial grounds for believing that the applicant would face a real risk of significant harm (as defined in s.36(2A) of the Act), by reference to:
i)the applicant’s claim in relation to being involved in an abduction and murder of a Pashtun Talib man in his home area which the IAA had concluded did not occur (CB 203 at [78]);
ii)the earlier finding that there is no real risk of the applicant facing significant harm in the context of generalised and insurgent violence in the country;
iii)the societal discrimination the applicant may face would not amount to significant harm; and
iv)did not, for reasons set out earlier in its reasons for decision , face a real chance of suffering serious harm upon return to Afghanistan for reason related to his religion, his ethnicity, any imputed political opinion or profile, as a result of seeking asylum in the west (Australia), or adopting a foreign (western) culture, in generalised violence, or on the basis of any other related profile (CB 203 at [79]); and,
as a result, concluded that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to the receiving country, there was a real risk that the applicant would suffer significant harm (CB 203 at [79]-[80]);
v)found the applicant did not meet s.36(2)(aa) of the Act (CB 203 at [80]); and
w)affirmed the decision not to grant the applicant a protection visa (CB 203).
Legislative Framework
Subdivision C of Div 3 of Pt 7AA of the Act, allows the IAA to obtain additional information in limited circumstances. Sections 473DC and 473DD of the Act set out the circumstances in which the IAA can get and consider new information as part of its review.
Relevantly, s.473DC(2) of the Act provides:
(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.
Section 473DD of the Act provides:
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a)the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b)the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i)was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii)is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.
Section 473DA(1) of the Act stipulates that Div 3, together with s.473GA and s.473GB, is taken to be an exhaustive statement of the requirements of natural justice in relation to reviews conducted by that authority.
Judicial Review Application
Applicant’s Submissions
The applicant’s one ground of review was outlined in his amended application filed 6 September 2018 as follows:
The Immigration Assessment Authority erred in its task under s.473DD of the Migration Act 1958 (Cth) by misapplying the requirement that any ‘new information’ be ‘credible personal information’ in s.473DD(b)(ii) of the Act.
The applicant did not particularise this ground in his amended application. However, his written submissions dated 5 September 2018 provided:
a)the Submission to the IAA contained the New Claims which were described by the IAA as follows:
i)‘The applicant has been stopped by the Taliban in 2009 when he was transporting stock for his butcher shop. Approximately $2000 in livestock was taken. The applicant was severely beaten and left by the road to die.’ (CB 189 at [3(a)]). (“First New Claim”)
ii)‘The applicant’s brother-in-law was killed by the Taliban in May 2013. His car was stopped in Jarliz. The applicant’s brother-in-law and another passenger were killed.’ (CB 189 at [3(b)]). (“Second New Claim”)
b)In relation to the First New Claim, the IAA said that this claim was ‘concerning’ (CB 189 at [5]) as ‘this claim was not raised in the arrival interview, the visa application or the visa interview before the delegate.’ (CB 189 at [5]).
c)In relation to the Second New Claim, the IAA made a similar finding, emphasising that this claim has not been made at an earlier point in time with IAA stating that ‘He did not advance a claim that his brother-in-law was murdered by the Taliban in 2013.’(CB 189 at [6]).
d)The IAA explained why it decided not to exercise its power under s.473DD of the Act and consider the New Claims at paragraph 7 of its reasons for decision stating (CB 189 at [7]):
In these circumstances, I am not satisfied these claims are credible personal information, and given his failure to raise these claims at an earlier point in this application not satisfied there are exceptional circumstances that justify the IAA considering the new information.
e)In making the above finding, the IAA misapplied the requirement that ‘new information’ be ‘credible personal information’ as prescribed by s.473DD(b)(ii).
f)In CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 (“CSR16”) Bromberg J explained at [38]-[42] that ‘credible personal information’ (within the meaning of the s.473DD(b)(ii) of the Act criteria) meant that the ‘new information’ only needed to be ‘capable of being believed at the deliberative stage of the IAA’s review’. At [41]-[42], Bromberg J said:
[41]In my view all that the “credible” element of the s 473DD(b)(ii) criteria requires is the Authority’s satisfaction that the “new information” is information which is open to be or capable of being accepted by the Authority as truthful (or accurate, or genuine). It is only at the deliberative stage of its review that the Authority will be required to determine whether or not the “new information” is true. The s 473DD(b)(ii) criteria is concerned with an earlier or anterior stage of the review directed at whether “new information” should be received by the Authority so that it may be considered at the deliberative stage.
[42] The criteria is a filtering mechanism designed to separate information worthy of consideration at the deliberative stage from that which is not. In that context, the word “credible” is used in relation to information, not in the sense that the information is believed, but in the sense that the information is capable of being believed. It is only information that the Authority is satisfied is “evidently not credible” (VEAL v Minister for Immigration and Multicultural Affairs [2005] HCA 72; (2005) 225 CLR 88 at [17] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ) that fails to meet the credibility requirement imposed by the s 473DD(b)(ii) criteria.
g)The IAA’s approach to s.473DD(b)(ii) was wrong for at least two reasons:
i)Firstly, the IAA was in substance concerned with assessing whether the claims were in fact truthful at the s.473DD stage, when that is not the task required of the IAA: CSR16 at [41]. In doing so, the IAA applied a higher standard of satisfaction than the criteria required. (“Reason 1”)
ii)Secondly, to reject the claims as not being ‘credible personal information’ on account of not having been raised earlier is to effectively treat that alternative in s.473DD(b)(ii) as the same as the ‘was not, and could not have been, provided to the Minister before the Minister made the decision under section 65’ in s.473DD(b)(i). On their proper construction, the content of s.473DD(b)(i) and s.473DD(b)(ii) must be different. These two limbs are expressed as alternatives[1] and to treat them as the same, would deprive at the least one of any utility. (“Reason 2”)
[1] Noting that in BZV16 v Minister for Immigration and Border Protection [2017] FCA 958 (BZV16), White J said at [37]: ‘I would also uphold an additional and related contention of the appellant. This was to the effect that, even if the FCC Judge had been correct in finding that the IAA had addressed s 473DD(b)(i), this would not have completed the IAA’s statutory task, given that subpara (b) is expressed in alternatives. The circumstance that the appellant may not have been able to satisfy subpara (b)(i) did not foreclose him being able to satisfy subpara (b)(ii).’
h)In BRA16 v Minister for Immigration and Border Protection [2018] FCA 127 (“BRA16”) Gilmour J observed at [26] that:
Even if the IAA had made an error in respect of its consideration of the matters described in s 473DD(b), any error could not be jurisdictional, as a finding adverse to the appellant was made in respect of s 473DD(a). The chapeau to s 473DD imposes a prohibition on the consideration of new information. That prohibition can only be displaced if the requirements of both ss 473DD(a) and (b) can be satisfied.
i)In Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 (“Plaintiff M174”), Gageler, Keane, and Nettle JJ similarly described the cumulative assessment set out in s.473DD at [31]:
Cumulatively upon the precondition set out in s 473DD(a) that the Authority must be satisfied that there are exceptional circumstances to justify considering new information, s 473DD(b) sets out a further precondition that must also be met before the Authority can consider new information that is given to it, or proposed to be given to it, by the referred applicant. In respect of new information within that category, the Authority must be satisfied of one or other of the circumstances set out in s 473DD(b)(i) and (ii).
j)The present case is distinguishable from BRA16. In the present case the IAA’s behaviour was different insofar as it chose to borrow its findings under s.473DD(b)(ii) on credibility to assist with its assessment of ‘exceptional circumstances’ under s.473DD(a).
k)The borrowing of findings in this context is not in itself wrong. In BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958 (BVZ16), White J said at [9] that the factors in s.473DD(b)(i) and s.473DD(b)(ii) may contribute to the IAA’s satisfaction as to whether there are ‘exceptional circumstances’ to justify considering the new information:
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. [Emphasis added]
l)In the present matter, the IAA’s finding about the credibility of the ‘new information’ under s.473DD(b)(ii) was flawed because it applied the wrong credibility threshold.
m)The IAA used its flawed s.473DD(b)(ii) credibility assessment to form the basis (or at least a significant part of the basis) of its assessment as to whether ‘exceptional circumstances’ existed. In doing so, the IAA borrowed a flawed finding and caused its ‘exceptional circumstances’ assessment to be infected by the same error.
Minister’ Submissions
In contrast, the Minister relevantly contended:
a)The requirements of ss.473DD(a) and (b) are cumulative requirements in that the IAA must not consider new information unless it is satisfied that both paragraph (a) and paragraph (b) of s.473DD are satisfied (Plaintiff M174 at [31]; BVZ16 at [9]).
b)It follows from the fact that the requirements in paragraphs (a) and (b) of s. 473DD are cumulative that if one of those requirements does not exist, then the IAA must not consider the new information (BRA16 at [26]).
c)In the present case, the IAA found:
i)In relation to the applicant’s new claims, that:
· Each claim pre-dated the delegate’s decision by a considerable period (CB 189, [4]). By this finding it can be inferred that the IAA was not satisfied that the requirements of s.473DD(b)(i) were met in relation to the New Claims; and
· Neither of the New Claims were raised in the applicant’s arrival interview, his visa application or in his interview before the delegate (CB 189, [4]-[5]); despite the applicant having been advised about the importance of raising full and complete claims (CB 189 at [4]), having been assisted in the preparation of his application by a representative (CB 189 at [4]), having advanced specific claims about an incident involving the Taliban in 2013 (CB 189 at [5]), and having been specifically asked in his interview about his sisters (CB 189 at [6]). In the circumstances, the IAA was not satisfied that the New Claims were “credible personal information” for the purposes of s. 473DD(b)(ii) (CB 189 at [6]); and
· Given the applicant’s failure to raise the New Claims at an earlier point in the application, having regard to the circumstances that the applicant had been advised about the importance of raising full and complete claims (CB 189, [4]), had been assisted in the preparation of his application by a representative (CB 189, [4]), had advanced specific claims about an incident involving the Taliban in 2013 (CB 189, [5]), had been specifically asked in his interview about his sisters (CB 189, [6]), and had not raised the claims in his oral or written evidence (CB 189, [4]), the IAA was not satisfied that there were exceptional circumstances to justify considering the New Claims (CB 189, [7]).
d)In so far as the IAA made findings that the ‘new information’ was not “credible personal information” under s.473DD(b)(ii) of the Act, those findings do not give rise to jurisdictional error of the kind identified in CSR16.
e)In CSR16, Bromberg J found jurisdictional error where the IAA had imposed a higher standard of satisfaction than the criteria in s.473DD(b)(ii) requires. The Court interpreted “credible” in s.473DD(b)(ii) as meaning “capable of being accepted by the IAA as truthful (or accurate, or genuine)” and not whether the information “is true” (at [41]).
f)It is accepted that this Court is presently bound by the decision in CSR16, but that that decision sits uncomfortably with the Full Court’s judgment in DYS16 v Minister for Immigration and Border Protection [2018] FCAFC 33 at [37]-[39] (see in this regard DLB17 v Minister for Immigration [2018] FCCA 1299 per Judge Smith).
g)Parliament has plainly contemplated that the IAA might not be satisfied certain information is “credible”, otherwise s.473DD(b)(ii) would not provide an efficient “filtering mechanism” (CSR16 at [42]). Further, there is nothing in CSR16 that supports the proposition that an assessment of whether information is “credible” is in some way restricted only to the information itself. For example, no criticism is levelled at the IAA for engaging in a process of assessing the veracity of new information, not on its face, but by reference to “review material” which had been received by the IAA (see CSR16 at [39]).
h)The present case is distinguishable from CSR16 for the following reasons:
i)In its consideration of the ‘new information’, the IAA did not make a precursory finding that the applicant did not have a genuine fear of the kind claimed (unlike the finding in CSR16 at [6]: “Moreover, I am not satisfied that the applicant does have a genuine fear of this kind and I am therefore not satisfied that it is credible personal information”). The error in CSR16 was the intellectual step of deliberating on and forming a concluded view about the applicant’s claims; and that did not occur in the present case.
ii)The IAA in the present case was not satisfied that there were exceptional reasons to justify considering the ‘new information’. That finding, under s.473DD(a), was sufficient of itself to preclude the IAA considering the ‘new information’. In the circumstances, if there is any error in the findings under s.473DD(b)(ii) (which is denied), those errors had no material effect, given the IAA’s findings under s.473DD(a) in this case.
iii)In BRA16, Gilmour J observed (at [26]):
Even if the IAA had made an error in respect of its consideration of the matters described in section 473DD(b), any error could not be jurisdictional, as a finding adverse to the appellant was made in respect of s 473DD(a). The chapeau to s 473DD imposes a prohibition on the consideration of new information. That prohibition can only be displaced if the requirements of both ss 473DD(a) and (b) can be satisfied.
iv)In BVZ16 at [9] per White J, it is entirely appropriate for the IAA to consider the matters in s.473DD(b), as well as any other relevant matters, when considering whether the circumstances in a particular case are exceptional, for the purposes of s.473DD(a) of the Act. In the present case, the failure of the applicant to make the new claims at any earlier stage, given those matters were known to him, was a relevant matter to which the IAA could have regard when deciding whether exceptional circumstances existed in this case.
v)In all the circumstances, no jurisdictional error arises in relation to the IAA’s assessment of the new information in this case.
Consideration
The applicant argues that the IAA’s approach to s.473DD(b)(ii) of the Act was wrong for at least two reasons. The Court will determine the applicant’s sole ground of review addressing each of these reasons in turn.
Reason 1
The IAA was in substance concerned with assessing whether the claims were in fact truthful at the s.473DD stage, when that is not the task required of the IAA. In doing so, the IAA applied a higher standard of satisfaction than the criteria required.
It is not in dispute that the Court is bound by the decision in CSR16. As noted earlier, Bromberg J broadly explained in CSR16 at [41] that:
a)the “credible” element of the s.473DD(b)(ii) criteria requires the IAA’s satisfaction that the “new information” is information which is open to be or capable of being accepted by the IAA as truthful (or accurate, or genuine);and
b)it is only at the deliberative stage of its review that the IAA will be required to determine whether or not the “new information” is true.
The determination of Reason 1 turns upon whether the IAA applied too high a threshold as it related to ‘credibility’ and as a consequence misapplied ss.473DD(b)(ii) of the Act.
As noted above, the Minister made submissions that the error in CSR16 did not occur in the present case and as a consequence CSR16 is distinguishable. The error made by the IAA in CSR16 was that it found that the information was not credible because it had found that the applicant’s fear was not genuine: see CSR16 at [35]. The question of genuineness of a claimed fear was clearly one that had to be determined after the IAA had determined what information it could and could not have regard to and not before it had made that determination (EAA16 v Minister for Immigration & Anor [2018] FCCA 2624 (“EAA16”) at [42] as per Judge Smith). The Minister argued that the intellectual step of deliberating on and forming a concluded view about the applicant’s claims that occurred in CSR16 is not present in this matter.
In assessing whether the New Claims satisfied s.473DD(b)(ii) of the Act, the IAA stated that “the failure to put forward these claims at an earlier point raises questions as to whether they are credible.” (CB 189 at [4]). The IAA also stated that the applicant’s failure to raise claims relating to other issues he had with the Taliban, including a claim that he was beaten and left for dead in 2009, was “concerning” (CB 189 at [5]).The IAA then went on to conclude that it was not satisfied the New Claims were credible personal information (CB 189 at [7]).
The Court agrees that it can reasonably be argued that these words, “concerning” and “credible”, show that the IAA was determining not whether the information was credible, but whether it believed the information. However, the Court agrees with the Minister that the IAA in the present case did not make the same error as was made in CSR16. The Court also agrees with the Minister’s submissions that no criticism can be levelled at the IAA for engaging in a process of assessing the veracity of new information, not on its face, but by reference to “review material” which it had received (CSR16 at [39]).
In addressing whether the New Claims satisfied s.473DD(b)(ii) of the Act, the IAA noted, amongst other things, that:
a)the New Claims were not raised in the applicant’s arrival interview, his visa application or in his interview before the delegate (CB 189, [4]-[5]);
b)despite the applicant having been advised about the importance of raising full and complete claims he failed to raise the raise the New Claims (CB 189 at [4]);
c)the applicant was assisted in the preparation of his application by a representative (CB 189 at [4]); and
d)the applicant advanced specific claims about an incident involving the Taliban in 2013 (CB 189 at [5]).
The question of whether information is credible is an evaluative judgment for the IAA to make. The IAA is not prevented from having regard to the factual context in which the information arose (EAA16 at [42]).
Here, the IAA assessed whether the New Claims were credible and did so in the context outlined above. The Court is satisfied that, when the IAA considered the cumulative effect of these factors and placed the applicant’s failure to raise the New Claims in that context, the conclusion that the applicant’s failure raised questions as to whether the New Claims were “credible” was open to it by reference to “review material”.
The Court finds that in the circumstances of the present case, the IAA’s reference to “credible” in its analysis of the New Claims is a reference to the criterion in s.473DD(b)(ii) of the Act. On a fair reading, this was a reference to whether or not the New Claims were credible personal information. This is entirely consistent with the IAA engaging in a preliminary determination, rather than engaging in the final deliberative process required of the IAA under Part 7AA of the Act (CRM18 v Minister For Home Affairs & Anor [2018] FCCA 3312 at [19] per Judge Street).
The Court does not accept that the IAA went beyond this preliminary determination and applied too high a threshold as it related to ‘credibility’.
Reason 2
To reject the claims as not being ‘credible personal information’ on account of not having been raised earlier is to effectively treat that alternative in s.473DD(b)(ii) as the same as the ‘was not, and could not have been, provided to the Minister before the Minister made the decision under section 65’ in s.473DD(b)(i). On their proper construction, the content of s.473DD(b)(i) and s.473DD(b)(ii) must be different. These two limbs are expressed as alternatives and to treat them as the same, would deprive at the least one of any utility.
In relation to Reason 2 as advanced by the applicant, the IAA is permitted to consider the factual context in which any new information arises as part of its analysis of whether that information is ‘credible’. In this case, the applicant’s inability to raise those claims at an earlier date formed part of that context. The IAA’s finding that the New Claims were not ‘credible personal information’ did not turn on the applicant’s inability to raise them earlier per se. Rather, it turned on the credibility finding it had made in relation to the factual context it had before it by reference to the “review material”.
For the reasons given above, the Court is satisfied that the IAA correctly applied s.473DD(b)(ii) of the Act and did not treat the two limbs of s.473DD(b) as the same.
Further, the Court finds that the IAA did, as part of its statutory task, consider the first limb of s.473DD(b) of the Act. The IAA noted that the New Claims pre-dated the delegate’s decision by a “considerable period” (CB 189 at [4]) and it is self-evident from the factual context of this case that, in practical terms, the New Claims could very easily have been provided to the Minister before the Minister made the decision under s.65 of the Act.
Further, it is not necessary for the IAA to effectively repeat verbatim the parts of the relevant statute which guide its review task. As such, the Court is willing to infer that, despite not making an explicit reference to s.473DD(b)(i) of the Act, the IAA did satisfy itself that the requirements of s.473DD(b)(i) of the Act were met in relation to the New Claims.
No error of any sort arises in these circumstances.
Exceptional Circumstances
Whether the IAA accepts the credibility of new information is relevant to the question of whether there are “exceptional circumstances” for the purposes of s.473DD(a) of the Act: BVZ16 at [9] per White J. This is so whether credibility is taken at the entry level suggested in CSR16, or at the level of acceptance applied by the IAA in this matter.
The Court is satisfied that the applicant’s failure to raise the New Claims at any earlier stage, given that those matters were known to him, was relevant to the IAA deciding whether exceptional circumstances existed in this matter. The Court accepts that the IAA took into account all of the circumstances (see [4]-[8] of its reasons) and finds that the IAA’s finding that ss.473DD(a) of the Act was not met was open to it in the particular factual circumstances of this case.
As the requirements of s.473DD of the Act are cumulative (Plaintiff M174 per Gageler, Keane, and Nettle JJ at [31]) the IAA’s conclusion that there were no “exceptional circumstances” meant that the IAA was prohibited from considering the New Claims for the purposes of the review of the delegate’s decision.
Accordingly, the Court finds no jurisdictional error in relation to this ground of review.
Conclusion
For the reasons above, the applicant’s application seeking judicial review of a decision of the IAA made on 17 January 2018 to refuse the applicant’s application for a protection visa is dismissed
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Date: 21 December 2018
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