BBN18 v Minister for Immigration
[2020] FCCA 1768
•20 August 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BBN18 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1768 |
| Catchwords: WORDS AND PHRASES – “personal information”. |
| Legislation: Migration Act 1958 (Cth), ss.5, 5H, 36, 473BA, 473CB, 473DA, 473DB, 473DC, 473DD, 473GA, 473GB |
| Cases cited: AQU17 v Minister for Immigration (2018) 162 ALD 442 AUH17 v Minister for Immigration [2018] FCA 388 AYK17 v Minister for Immigration [2019] FCA 1053 BRA16 v Minister for Immigration [2018] FCA 127 BZC17 v Minister for Immigration (2018) 264 FCR 667 CAQ17 v Minister for Immigration [2019] FCAFC 203 Carrascalao v Minister for Immigration [2017] FCAFC 107 CDZ16 v Minister for Immigration [2017] FCA 967 CSR16 v Minister for Immigration [2018] FCA 474 DGZ16 v Minister for Immigration (2018) 258 FCR 551 Hossain v Minister for Immigration [2018] HCA 34 Minister for Immigration v BBS16 (2017) 257 FCR 111 Minister for Immigration v SZMTA (2019) 264 CLR 421 Plaintiff M174/2016 v Minister for Immigration (2018) 264 CLR 217 WAGO of 2002 v Minister for Immigration [2002] FCAFC 437 |
| Applicant: | BBN18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 582 of 2018 |
| Judgment of: | Judge Driver |
| Hearing date: | 29 June 2020 |
| Date of last submissions: | 17 July 2020 |
| Delivered at: | Sydney |
| Delivered on: | 20 August 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms R Graycar |
| Solicitors for the Applicant: | Alan Rigas Solicitors |
| Counsel for the Respondents: | Ms M Yu |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
The application as amended on 8 August 2019 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 582 of 2018
| BBN18 |
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 5 February 2018. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from the submissions of the parties.
The applicant is an Iraqi citizen who arrived in Australia as an unauthorised maritime arrival in June 2013. He had been living in Cyprus for some years and then came to Australia by boat. On 14 August 2017 the delegate refused to grant the applicant a SHEV.[1] The delegate's decision was a fast track reviewable decision and was referred to the Authority for review on 18 August 2017.[2]
[1] Safe Haven Enterprise Visa; Court Book (CB) 148-161
[2] CB 164
As noted above, on 5 February 2018, the Authority affirmed the delegate's decision.[3]
[3] CB 707
The applicant’s claims for protection are set out in his statement at CB 76-80, and by the delegate at CB 150 and the Authority at [11].[4] In summary, he claimed that:
[4] CB 709
a)his father was a member of the Ba’ath Party and was murdered in 2004 by the Dawa Party or its militia;
b)he was also a member of the Ba’ath Party since 1980 or 1981 and did four years military service between 1990 and 1994 including the provision of security for the President;
c)in 2003 the US invaded Iraq and there was a civil war during which the Al Dawa Party took revenge against former Ba’ath Party members and members of security agencies;[5]
d)he was shot at in late 2004 or early 2005 by H, with whom he had attended school and who is now a high level member of the Dawa Party;
e)he subsequently fled Iraq in 2006 to live and work in Cyprus, until travelling to Australia in mid-2013 because his rights in Cyprus had gradually eroded;
f)he feared being arrested or killed by the Dawa Party, its militia or the security forces because of his past military service, because he is a Ba’athist, and/or because they erroneously believe he informed on H during the 1991 uprising; and
g)given his lengthy absence from Iraq, he also fears that the Iraqi government, or the Dawa Party or its militia, will suspect him as a member or supporter of Daesh.
The Authority decision
[5] [12], CB 77
Information before the Authority
The Authority had regard to the referred material (pursuant to s.473CB of the Migration Act 1958 (Cth) (Migration Act)) and noted that the applicant’s representative had provided a submission, with 14 attached documents. In relation to the aspects of the submission that engaged with the delegate’s decision, the Authority treated those as argument.[6] The Authority also noted at [7] that the submission included “several apparently new claims” that were not made to the delegate: first, that his father had been recognised for his service to the Ba’ath Party with the award of a certificate, a medal and a gun; and secondly, that the applicant had witnessed many former members of the Ba’athist security forces being murdered.
[6] CB 708
The Authority noted at [8] that no explanation had been provided as to why these claims had not previously been made, either by the applicant or his adviser (noting he had been professionally represented throughout). Nor had the applicant identified why they should be treated as credible personal information. No evidence had been provided in support of either claim and the first appeared to the Authority to contradict earlier evidence about his father. His second new claim also appeared to contradict his evidence that he had largely stayed indoors after the fall of the Saddam Hussein regime, and the Authority doubted the veracity of both new claims.
The Authority concluded at [8] that the applicant had not satisfied the Authority that the information could not have been provided to the Minister, nor that it was credible personal information and the Authority was not satisfied that there were exceptional circumstances for considering it. The Authority also noted the country information that was provided at [9] and found at [10] that neither the applicant nor his representative had explained why the items of country information listed in that paragraph, which all predated the delegate’s decision, had not previously been provided and was not satisfied that the criteria for departing from the prohibition on the consideration of that new information were satisfied.
The Authority’s decision on the substantive claims
The Authority accepted at [14]-[15] that the applicant is an Iraqi national and a Shia Muslim of Arab ethnicity, that he was born in a named location in Karbala governorate, and that, apart from his four years military service, he lived in the same address in Karbala until his departure from Iraq in 2006.
The Authority accepted at [20] that the applicant's father was a member of the Ba’ath Party, but found that he was not a high level member, and that he had died in 2004. Despite having some doubts, the Authority accepted at [21] that his death was politically motivated.
The Authority also accepted at [22] that the applicant may have been a sympathiser or low-level member of the Ba’ath Party, and at [26] that he completed four years of military service as a guard in the Special Security organisation between 1990 and 1994, and that his family's Ba’athist connections assisted him in obtaining this preferred position.
However, the Authority did not accept at [42]-[44] that, because of an imputed political opinion, he was shot at in 2005 by a school colleague who has risen to a high level in the Dawa Party or its militia or that the Iraqi government, or the Dawa Party or its militia, will suspect the applicant of being a Daesh member or supporter should he return to Iraq.
The Authority concluded at [44] that the chance that the applicant will suffer harm if returned to Iraq because he will be imputed as a Daesh member or supporter, or because of his military service, is remote. The Authority was not satisfied at [45]-[47] that there was a real chance that the applicant will suffer harm because of his low-level membership of the Ba’ath Party or his father's Ba’ath Party membership, and in particular was not satisfied at [47] there was a real chance that he will suffer harm from the Dawa Party or its militia, or other Shia militias, as a result of his Ba’athist connections.
While the Authority accepted at [49] that the applicant may experience some challenges settling back into life in Karbala governorate given he has been absent for around 12 years, it noted that he had a strong family network there who have continued to live in his home town during that time. The Authority was not satisfied at [49] there was a real chance that he would suffer harm as a failed asylum seeker from a Western country.
The Authority accepted at [53] that Shias have been subject to isolated attacks in Karbala governorate in the past, and that a lower risk of harm does not necessarily preclude there being a real risk of harm. However, in this case, the Authority found at [53] that not only was there a lower risk of harm from both sectarian and more general violence, but also having regard to the nature and frequency of incidents in that governorate it was not satisfied that the level of harm is such that it rose to a real chance.
Accordingly, the Authority found at [54] that the applicant did not satisfy the requirements of the definition of refugee in s.5H(1) of the Migration Act, and thereby did not satisfy s.36(2)(a) of the Migration Act. For the same reasons, the Authority found at [57]-[59] that the applicant did not satisfy the complementary protection requirements.[7]
[7] section 36(2)(aa) of the Migration Act
The current proceedings
These proceedings began with a show cause application filed on 6 March 2018.
The applicant now relies upon an amended application filed on 8 August 2019. There is one particularised ground in that application as amended:
1. The Second Respondent (the IAA) failed to make a proper assessment of “new information” which had been provided to it, pursuant to s.473DD of the Migration Act 1958 (Cth).
Particulars
a.The IAA, at [8] of its decision, found that there were no exceptional circumstances to justify considering new information in the form of a claim that was put forward in written submissions prepared by the Applicant's representative (at CB 183).
b.The claim referred to at (a) was to the effect that, the Applicant's father held a senior position in the Ba’ath Party and that in recognition of his service to the Ba’ath Party, the Applicant's father was awarded with a certificate, a medal and a gun commemorating his excellent service in the military under Saddam Hussein (the new information).
c.In finding that there were no exceptional circumstances to justify considering the new information, the IAA unduly narrowed its consideration of the term "exceptional circumstances" in s.4 73DD(a) of the Act by focusing on the lack of explanation as to why the new information ought to be considered and failing to have regard to the full context of the new information provided by the Applicant to it.
d.The new information merely augmented and did not contradict facts which were otherwise accepted by the IAA on the evidence before it.
e.In finding that the new information was not credible personal information, the IAA proceeded on an unwarranted assumption that there was a contradiction between the Applicant's father being decorated for military service as compared with his earlier evidence that his father was an educational supervisor at a school.
f. The matters referred to above were material to the IAA’s conduct of the review. Consequently, the IAA’s decision was affected by jurisdictional error.
I have before me as evidence the court book filed on 16 April 2018.
Both the applicant and the Minister filed pre-hearing written submissions and made oral submissions through their counsel at the trial of this matter on 29 June 2020. I have been assisted by those submissions.
Having regard to the course of oral argument, I invited post hearing submissions from counsel on the meaning of the words “personal information” in s.473DD(b)(ii) of the Migration Act. Submissions on that issue were filed on behalf of the applicant on 17 July 2020.
Consideration
Section 473DD of the Migration Act is relevantly set out as follows:
Considering new information in exceptional circumstances
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.
Ground 1: unduly narrow consideration of the term “exceptional circumstances”
Where a claim or a piece of evidence is considered, it is necessary for the decision maker to give proper, genuine and realistic consideration to the relevant claim or evidence.[8]
[8] see e.g. Carrascalao v Minister for Immigration [2017] FCAFC 107 at [35]
In AYK17 v Minister for Immigration[9] at [67]-[68], Farrell J held that the Authority had failed to complete its legislated task in circumstances where it had failed to make an assessment under s.473DD(b)(ii) of the Migration Act (i.e. the Authority had failed to consider whether the relevant new information was “credible personal information which was not previously known and, had it been known, may have affected the consideration of the applicant’s claims”) in determining whether “exceptional circumstances” existed for the purposes of s.473DD(a). Her Honour held that this was so despite the fact that the applicant had not provided an explanation for why the new information had not been previously provided, as in AYK17’s case there had not been any major doubts as to the applicant’s credibility, and the new information that was sought to be adduced was for the purposes of augmenting (and not contradicting) an existing factual claim that had been accepted by the Authority as true (see [65] of the judgment).
[9] [2019] FCA 1053
Having regard to the reasoning in AYK17, the applicant submits that the Authority at [8] of its decision, unduly narrowed its consideration of the term “exceptional circumstances” in s.473DD(a) of the Migration Act in finding that there were no exceptional circumstances to justify considering the new information. It is said to have done so by focusing on the lack of explanation as to why the new information ought to be considered and failing to have regard to the full context of the new information provided by the applicant to it. Similarly, the Authority is said to have erred in finding that this new information was not credible personal information for the purposes of s.473DD(b)(ii) of the Migration Act, for the following reasons.
First, the Authority is said to have focused on the lack of explanation as to why the new information ought to be considered, without regard to the relevance or context of the new information in which the new information had been provided in the written submissions to the Authority.
Secondly, the new information about the applicant’s father having been given a certificate, medal and gun in recognition for his military service and as part of the Ba’ath Party is said to have been consistent with, and augmented the claims that had already been made at [9] of his written statement to the effect that his father had been an active member of the Ba’ath Party.
Thirdly, the new information sought to be introduced is said to have been “personal information” in the sense that it was specifically about a “person”, being the applicant’s father, whose claimed position in the Ba’ath Party and related death were matters which were relevant to the applicant’s claims to fear harm in Iraq.
Fourthly, the Authority had accepted, at [19]-[21] of its decision, that the applicant’s father was a member of the Ba’ath Party and that his death was politically motivated. However the Authority was only prepared to accept at [22] that the applicant’s father was a mid-level member of the Ba’ath Party and that the applicant himself was only a low-level member or sympathiser. In this regard, the new information about the applicant’s father having been awarded a certificate, medal and gun would, in the applicant’s submission, have been relevant to (and may have changed) the assessment of the applicant’s father’s political profile, and by extension, that of the applicant himself.[10]
[10] see Hossain v Minister for Immigration [2018] HCA 34 at [72]
Fifthly, contrary to the Authority’s comment at [8] of its decision where it stated that there was a contradiction between the applicant’s father being decorated for military service as compared with the applicant’s earlier evidence that his father was an educational supervisor at a school, there was, in the applicant’s submission, no such contradiction between these matters. The applicant clearly stated at [9] of his written statement that his father was both an active member of the Ba’ath Party and an educational supervisor at a school, and he goes on to mention the existence of a practice where people such as himself, were conscripted into the Iraqi military in the 1990s. Against this background, it is said to be not necessarily correct to say that there was a contradiction of the kind identified by the Authority in the applicant’s evidence as the applicant’s evidence indicated that there could well have been a time where the applicant’s father had also served in the military. For the Authority to dismiss the credibility of the new information for these reasons is said to amount to a jurisdictional error in circumstances where the Authority proceeded on an “unwarranted assumption” as to matters relevant to the formation of its view as to the credibility of the new information.[11]
[11] WAGO of 2002 v Minister for Immigration [2002] FCAFC 437 at [54]
The applicant submits that, had the Authority properly considered the new information provided in assessing whether the applicant met the criteria for the grant of a SHEV in s.36(2) of the Migration Act, the outcome of the Authority’s decision may have been different. As such the Authority’s error is said to have been material to its decision to affirm the refusal of the applicant’s visa.[12]
[12] Minister for Immigration v SZMTA (2019) 264 CLR 421 at [48]
I prefer the Minister’s submissions on the ground of review advanced.
The applicant commences by suggesting that the Authority is obliged to give “proper, genuine and realistic consideration to the relevant claim or evidence”, referring to the Full Federal Court’s decision in Carrascalao at [35]. That case concerned a decision of the Minister to cancel a visa pursuant to s.501 of the Migration Act four hours after the Full Federal Court had set aside an earlier cancellation decision. It did not concern decision making in the context of Part 7AA, nor the prohibition imposed by s.473DD on considering new information (as defined in s.473DC(1)). The issue before this Court cannot be considered without reference to the specific statutory framework that governs Part 7AA in general, and s.473DD in particular.
Review pursuant to Part 7AA and the role of the Authority
Part 7AA of the Migration Act provides for a limited form of review of “fast track decisions” (see s.473BA) for the cohort of people described in that section.
The Authority’s role has been described by the High Court in Plaintiff M174/2016 v Minister for Immigration[13] (Gageler, Keane and Nettle JJ) at [17] as conducting a “de novo consideration of the merits of the decision that has been referred to it” (as opposed to reviewing error on the part of the delegate) (and see also Gordon J at [85] and Edelman J at [95].
[13] (2018) 264 CLR 217
Some of the key elements of the statutory framework governing Part 7AA include the following:
a)section 473DA provides that Division 3 of Part 7AA, with ss.473GA and 473GB, “is taken to be an exhaustive statement of the requirements of the natural justice hearing rule”;
b)as the Full Federal Court explained in DGZ16 v Minister for Immigration[14] at [75]-[76]:
There is no requirement in Pt 7AA, equivalent to s.425, which provides that the Tribunal must invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. Indeed, as we have noted, by s.473DB, subject to Pt 7AA, the Authority must review the fast track reviewable decision by considering the review material provided to it without accepting or requesting new information and without interviewing the referred applicant.
It was open to the Authority to disagree with the delegate’s evaluation of the material without providing to the appellant an opportunity to respond.
c)pursuant to s.473DB, the Authority must review a fast track decision referred to it “on the papers”, by considering the review material (see s.473CB) and “without accepting or requesting new information and without interviewing the referred Applicant” (this has been described as the “primary rule”[15]). Unlike a review conducted under either Part 5 or Part 7, there is (subject to s.473DC) no opportunity for an applicant to appear before the Authority for an interview (though the Authority will generally have a recording of the interview that was conducted by the delegate when considering whether to grant the visa);
d)section 473DC provides the Authority with a statutory discretion to “get new information”. This is defined in s.473DC(1) as information that was not before the Minister when the decision was made and which the Authority considers may be relevant.[16] However, s.473DC(2) makes it clear that the 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 …”;
e)section 473DD prohibits the Authority from considering any new information (whether it was obtained by the Authority pursuant to s.473DC or provided by the applicant) other than in exceptional circumstances (s.473DD(a)). Even if the Authority finds that there are exceptional circumstances, that material may only be considered if it additionally meets at least one of the criteria in either s.473DD(b)(i) or (ii).[17]
[14] (2018) 258 FCR 551
[15] see BZC17 v Minister for Immigration (2018) 264 FCR 667 at [26] per Mortimer J
[16] see, on the question of the relevance of the information, the decision of Logan J in CDZ16 v Minister for Immigration [2017] FCA 967 at [10], and see also AYK17 at [36]
[17] see M174 at [29]-[31]
“New information” and s.473DD
The text of s.473DD is set out above. It is apparent that the requirements in paragraphs (a) and (b) of s.473DD are cumulative.[18]
[18] see Plaintiff M174 of 2016 at [31] per Gageler, Keane and Nettle JJ, [78] per Gordon, [100] per Edelman J (and see also Minister for Immigration v BBS16 (2017) 257 FCR 111; [2017] FCAFC 176 at [102]; and AQU17 v Minister for Immigration (2018) 162 ALD 442 at [13]
As the High Court also observed in Plaintiff M174 of 2016 at [30], referring to s.473DD(a), “quite what will amount to exceptional circumstances is inherently incapable of exhaustive statement”. An exceptional circumstance is one which, while it “need not be unique, or unprecedented, or very rare”, must not be “one that is regularly, or routinely, or normally encountered”.[19] The application of that criterion will, inevitably, involve an evaluative judgment by the Authority.[20] The Full Federal Court noted in AQU17 at [13]-[14]:
In each case, whether there are exceptional circumstances must depend on the particular circumstances of the visa applicant’s case. … [E]ach case will be different to every other case and must be treated on its merits and the matters for the Authority to take into consideration must necessarily vary from case to case.
[19] Plaintiff M174 of 2016 at [30]
[20] Plaintiff M174 of 2016 at [75]
It has also been held by the Federal Court that there is no prescribed manner in which an assessment of whether to accept new information must be undertaken, as Mortimer J pointed out in AUH17 v Minister for Immigration[21] at [32], consistently with the Full Federal Court decision in AQU17, each case must be considered on its merits. Nor is it necessary for the Authority in every case to consider both paragraphs (a) and (b), given that the requirements are cumulative,[22] each case is fact dependent. A fortiori, there is no obligation in each case separately to consider paragraphs (a), (b)(i) and (b)(ii): each case will depend upon its own circumstances.[23]
[21] [2018] FCA 388
[22] cf Plaintiff M174 of 2016 at [31]; [78] and [100]; and see BRA16 v Minister for Immigration [2018] FCA 127 at [26], AQU17 at [14], and see also AYK17 at [66]
[23] see CAQ17 v Minister for Immigration [2019] FCAFC 203 at [37] per Mortimer J and at [122] per Derrington and Steward JJ
There is a key relevant difference between paragraphs (a) and (b) in s.473DD. Paragraph (a) applies both to situations where the Authority seeks out new information, and to those, such as this case, where the new information is sought to be provided by an applicant. In relation to paragraph (a), the Authority must not consider the new information unless it satisfied that there are exceptional circumstances to justify considering it. By contrast, paragraph (b) applies only “in relation to any new information given, or proposed to be given, to the Authority by the referred applicant”. That paragraph requires that the applicant “satisfies the Authority” in relation to either s.473DD(b)(i) or (ii), one of which must apply, in addition to the Authority also finding that there are “exceptional circumstances” (cf s.473DD(a)) for considering the information. As the Full Federal Court explained in AQU17 at [17]:
Nor, contrary to the appellant’s submissions, was the Authority obliged to evaluate the credibility of the new information or the significance of the new information to the appellant’s case beyond the consideration given, absent some feature or matter to cause, or which should have caused, the Authority to consider that there was something about the appellant’s case which made it unusual or out of the ordinary. Nor does it appear from the material that anything was put to the Authority about the appellant’s personal circumstances or reason for the later inconsistent account, which was potentially relevant to the issue of “exceptional circumstances”.
That is, while there is no formal onus of proof in the context of a review pursuant to Part 7AA, s.473DD(b) requires the applicant to satisfy the Authority of at least one of the matters in that paragraph. As Mortimer J explained in AUH17 at [33]:
… there was nothing erroneous about the Immigration Assessment Authority directing its attention to (b) rather than (a), since the text of (b) does suggest an applicant must “satisfy” the Immigration Assessment Authority about why the information was not provided earlier. That at least calls for some material from an applicant by way of explanation, although in a statutory setting such as this there is no burden imposed. In circumstances where the appellant had not put any express material before the Immigration Assessment Authority to explain why he was relying on these facts for the first time, the Immigration Assessment Authority was not in error to identify (b) as not satisfied. That was enough to trigger the prohibition in s 473DD.
It is against that background, and in the context of the particular facts of this case, that the application before this Court comes to be considered.
The applicant relies on the decision of Farrell J in AYK17 at [67]-[68]. In that case, her Honour, after noting at [66] that each case was fact dependent, found that while it was not necessary for the Authority in all cases to consider paragraph (b) of s.473DD, it was an error not to have done so in that particular case. This does not assist the applicant in this case.
The applicant does not clearly identify how the reasons given by the Authority at [8] of the decision demonstrate that it “unduly narrowed its consideration of “exceptional circumstances” (and compare AQU17 at [13]-[17]). By contrast with that and other decisions in which no error has been found, the Authority in this case referred expressly to the criteria in each of ss.473DD(a), (b)(i) and (b)(ii) in the impugned paragraph and made particular and express findings in relation to each. While it is apparent that the applicant does not agree with the finding, none of the matters identified in the applicant’s submissions go further than identifying disagreement with the Authority’s ultimate conclusion. Even if there were some factual error, that is insufficient to give rise to jurisdictional error such as would vitiate the decision.
The applicant’s reliance on the Full Federal Court decision in WAGO of 2002 at [54] is misplaced for a number of reasons:
a)that case did not involve Part 7AA. The issue was not, as it was in this case, whether to exercise a discretionary but statutorily limited power to depart from the prohibition on the consideration of new information on a review;
b)the factual issue in that case concerned the Tribunal having failed to take into account relevant material; in that case, evidence from a corroborative witness. That has no factual analogy to what is involved here; and
c)a finding as to whether information is “credible personal information not previously known” is not itself a credibility finding.[24] Rather it is a filtering mechanism concerned with whether the new information should be received so it may be considered at the deliberative stage.
[24] see CSR16 v Minister for Immigration [2018] FCA 474 at [41]-[42]
As for what is stated in the applicant’s submissions, that had the Authority considered the new information, it may have made a different decision on the visa application, that is not the test for determining whether to depart from the prohibition on the consideration of new information, in the context of the “primary rule”,[25] i.e. that pursuant to s.473DB(1), a fast track review (Part 7AA) is to be conducted on the papers. It must be recalled that the heading to s.473DD is “Considering new information in exceptional circumstances”. If the circumstances are not found to be exceptional and additionally, even if they are, unless one of the paragraphs of s.473DD(b)(i) and (ii) is satisfied, s.473DD remains a prohibition on the consideration of claims that were not made to the delegate.
[25] BZC17 at [26]
In oral argument, counsel for the applicant suggested that the word “personal” in the phrase “credible personal information” in s.473DD(b)(ii) should be interpreted broadly. This was reinforced in the post-hearing submissions. I had raised whether personal information is restricted to information about the applicant or does it extend to information about any person? The short answer is that the broader interpretation is the correct one. This was made clear by the High Court in Plaintiff M174/2016 at [33] where the plurality stated that the expression takes its defined meaning within the Migration Act of “information or an opinion about an identified individual, or an individual who is reasonably identifiable”.[26]
[26] Section 5(1) of the Migration Act, definition of “personal information” read with s.6(1) of the Privacy Act 1988 (Cth)
Conclusion
The applicant has failed to demonstrate that the decision of the Authority is affected by any jurisdictional error. It 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 forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 20 August 2020
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