BDY18 v Minister for Home Affairs
[2019] FCCA 195
•5 February 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BDY18 & ORS v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 195 |
| Catchwords: MIGRATION – Protection visa application – review of decision of Immigration Assessment Authority – whether the IAA erred in failing to consider “new information” – whether the IAA erred in its task under s.473DD of the Migration Act 1958 (Cth) (the “Act”) by misapplying the requirement that ‘new information’ be ‘credible personal information’ in s.473DD(b)(ii) of the Act – whether the IAA erred in relation to whether “exceptional circumstances” existed that would allow it to consider “new information” – whether discretion under s.473DC of the Migration Act 1958 (Cth) allowing the IAA to obtain new information ought to have been exercised – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 5J, 36, 46A, 65, 473DA(1), 473DC, 473DD, 473GA, 473GB, Pt.7AA |
| Cases cited: ApplicantNABD of 2002 v Ministerfor Immigration and Multicultural and Indigenous Affairs (2005) 84 ALD 545 |
| First Applicant: | BDY18 |
| Second Applicant: | BDZ18 |
| Third Applicant: | BEA18 |
| Fourth Applicant: | BEB18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 138 of 2018 |
| Judgment of: | Judge Kendall |
| Hearing date: | 27 September 2018 |
| Date of Last Submission: | 27 September 2018 |
| Delivered at: | Perth |
| Delivered on: | 5 February 2019 |
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 Respondents: | Australian Government Solicitor |
| The Second Respondent: | Submitting appearance, save as to costs |
ORDERS
The applicant’s application for judicial review is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 138 of 2018
| BDY18 |
First Applicant
| BDZ18 |
Second Applicant
| BEA18 |
Third Applicant
| BEB18 |
Fourth Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application filed on 12 March 2018, amended on 17 September 2018, BDY18, BEA18, BDZ18 and BEB18 (the “applicants”) seek judicial review of a decision of the Immigration Assessment Authority (the “IAA”) made on 15 February 2018.
The IAA affirmed a decision of a delegate of the Minister for Home Affairs (the “Minister”) to refuse to grant the applicants Safe Haven Enterprise visas (“SHEVs”).
The applicants filed an amended application on 14 September 2018. It raised two grounds of review:
a)The IAA erred in its task under s.473DD of the Migration Act 1958 (Cth) (the “Act”) by misapplying the requirement that ‘new information’ be ‘credible personal information’ in s.473DD(b)(ii) of the Act.
b)The IAA unreasonably failed to consider whether to exercise its power under s.473DC of the Act to obtain ‘new information’ about the treatment of Ismailis in Iran.
These two grounds replaced the applicants’ original grounds of review raised in their originating application filed on 12 March 2018.
In substance, the applicants’ first ground of review relates to whether the IAA erred in its task under s.473DD of the Act generally, as opposed to s.473DD(b)(ii) of the Act specifically. This is because the requirements of ss.473DD(a) and (b) are cumulative, such that an error in relation to any of these subsections will not constitute a jurisdictional error unless that error can be seen to have affected the IAA’s task under s.473DD as a whole. This is articulated further within these reasons.
Background
Having reviewed all of the material before it, including a detailed Court Book (“CB”) spanning 392 pages, the applicants’ written submissions dated 14 September 2018, the Minister’s written submissions dated 6 September 2018 and the Minister’s written submissions dated 20 September 2018, the Court accepts the following information as the relevant background to this matter.
The applicants are citizens of Iran (CB 55, 88, 120 and 145).
BDY18 is a 45-year-old male of Persian ethnicity and Ismaili faith (CB 55 and 57).
BEA18 is a 33-year female of Persian ethnicity and of the Mormon faith (CB 88 and 90). She is BDY18’s wife (CB 254 and 357).
BDZ18 and BEB18 are the children of the marriage (CB 251).
BDY18, BEA18 and BDZ18 left Iran lawfully, before coming to Australia as unauthorised maritime arrivals (see CB 20-21 and 38-40). They arrived at Christmas Island on 6 April 2013 (CB 62). BEB18 was born in Australia (CB 120).
On 18 August 2016, the applicants were invited to apply for a visa, after the Minister exercised his powers to lift the bar under s.46A(2) of the Act.
On 6 February 2017, the applicants lodged an application for the SHEVs (CB 42-198). As part of the SHEVs applications, BDY18 made a statutory declaration outlining his claims for protection (CB 173-178).
On 27 April 2017, the applicants attended an interview with a delegate of the Minister in relation to the SHEVs applications (CB 243-245).
The applicants BDY18 and BEA18 made various claims for protection (CB 357 at [9]-[10] and 254).
On 13 July 2017, a delegate of the Minister refused to grant the applicants’ SHEVs (CB 246-270).
On 14 July 2017, the delegate referred the applicants’ refusal decision to the IAA for review (CB 279).
On 15 February 2018, the IAA affirmed the delegate’s decision (CB 354-373).
IAA’s Decision
The IAA’s decision appears at CB 354 to 369.
Relevantly, the IAA:
a)summarised BDY18’s protection claims as follows (CB 357 at [9]):
i)He was born in Neyshaboor, Khorasan Province and is a citizen of Iran.
ii)He follows the Ismaili faith, a minority Shia Muslim sect regarded as heretical in Iran.
iii)He experienced discrimination due to his religion. When he was approximately 10 years old, he relocated to Mashhad with his family as it was easier to hide their religion in a bigger city.
iv)He worked for a government department called the Culture Heritage Organisation on short term contracts and was never offered a permanent position because of his religion. He was also forced to attend prayer at work.
v)In 2009, he travelled with a large group from his religious community to Syria to see their spiritual leader but after having a bus accident on the way, the Iranian Embassy would not assist them and they were denied the insurance claim because they did not have an Islamic Sheikh with them.
vi)After refusing to travel to Tehran for the anniversary of the death of Ayatollah Khomeini in or around 2011, he was interviewed by workplace security five to eight times in an eight to nine month period. He was told his non-participation in various things was a crime and his contract was not renewed.
vii)Just before the end of his last contract, he was arrested by the Ministry of Intelligence of the Islamic Republic of Iran (“Ettelaat”) outside of his workplace. During his first period of detention, he was questioned about his religion, practices and prayers, and was psychologically tortured and sleep deprived. He was released after approximately 45 days and four months later, he received a letter to go to Court. When he arrived at Court, he was subsequently arrested for an additional 40 days by the Ettelaat. He was released on bail and engaged the help of a lawyer.
viii)He decided to leave Iran because he believed his life was in danger and fled Iran with his family legally in February 2013 before he was blacklisted. After he fled Iran, his lawyer attended Court on his behalf towards the end of 2014. He was convicted and sentenced to 15 years in prison for disrespecting the regime and causing offence to the Ayatollah and for a third offence he is unsure of. His lawyer appealed the decision.
ix)He believes he will be arrested and tortured by the authorities should he return.
b)summarised BEA18’s protection claims as follows (CB 357-358 at [10]):
i)She is a 32 year old female born in Mashhad Khorasan Province, Iran.
ii)She married her husband on 3 December 2003 and was raised in the Ismaili faith.
iii)Before she left Iran, she had heard about Jesus. When she arrived in Australia she met some missionaries who took her to their Church. She converted to Mormonism approximately six months after arriving in Australia. On 26 October 2013 she was baptised and confirmed a member of the Church of Jesus Christ of Latter-day Saints the following day.
iv)She is afraid if she returns to Iran, she will be considered an apostate by the authorities and she will be harmed and possibly killed.
c)noted that it had received a number of documents on behalf of the applicants which included (CB 355 at [3]):
i)a letter from the Church of Jesus Christ of Latter-day Saints in relation to BEA18 (“Church Document”) (CB 322);
ii)three translated documents each entitled “Court Order” relating to BDY18 (“Court Documents”) (CB 327-332);
iii)a translated Power of Attorney document, appointing a lawyer to defend BDY18 in legal and criminal matters (“Power of Attorney”) (CB 333);
iv)copies of three email failure notices in relation to attempts made by BDY18 to email the delegate in May and July 2017; and
v)a statutory declaration from BDY18 signed on 21 August 2017.
d)stated in relation to BDY18’s statutory declaration signed 21 August 2017 and the email failure notices (CB 355 at [4]-[5]):
4.The father's new statutory declaration post-dates the delegate's decision and I am satisfied that it was not, and could not have been, provide [sic] to the Minister before the Minister made the decision. The father's new statutory declaration outlines his response to the delegate's decision and provides evidence and argument in respect of why the new documents he has provided to the IAA should be considered by the IAA and also refers to alleged events that occurred after the delegate's decision which are relevant. I am satisfied there are exceptional circumstances to justify considering the father's new statutory declaration.
5.In his new statutory declaration the father claims that he emailed the delegate on three occasions in May 2017 providing her with further evidence. However, after receiving the delegate's decision he realised that she did not receive this evidence and was advised by his migration agent that the email address he had for the delegate was incorrect. A friend then assisted him in finding the "delivery failure notifications" in his spam folder. The applicants have provided copies of email failure notices in respect of emails the father attempted to send to the delegate on 5 May 2017 and 10 May 2017 before her decision. The father further claims that he emailed the delegate a church document on 7 May 2017 but has not provided a copy of this email. He further claims that he sent three court documents and one power of attorney to the delegate on 10 May 2017. I note the email failure notice of 5 May 2017 shows his original email requesting additional time to provide documents but the email failure notice of 10 May 2017 does not show his original email. I am willing to accept that the father was not aware that his emails of the 5 May 2017 and 10 May 2017 had been not been received by the delegate until after he received the delegate's decision so I am satisfied these email failure notices were not, and could not have been provided to the Minister before the decision. In his new statutory declaration the father further claims that he emailed the delegate on the 25 July 2017 asking if it was the correct email address and never received a reply and has provided a copy of the email failure notice in respect of that email which also shows his original email. As it post-dates the delegate's decision, I accept that this email failure notice was not, and could not have been, provided to the Minister before the decision. Nonetheless, as the father has not provided the original emails of the 7 and 10 May 2017, when he purportedly attempted to send the court documents, power of attorney and church document to the delegate, I am not satisfied on the evidence that he attempt [sic] to send these documents on these occasions. For these reasons I am not satisfied there are exceptional circumstances to justify considering the three email failure notices he has provided to the IAA.
e)was not satisfied that the Court Documents, Power of Attorney and Church Document that were provided to the IAA were not, and could not have been, provided to the Minister before the Minister made the decision (CB 356 at [5]).
f)expressed concerns about the credibility of the Court Documents and Power of Attorney, stating (CB 356 at [6]):
6.In the application for protection the father indicated that the applicants departed Iran on 18 February 2013 and he was convicted and sentenced to 15 years towards the end of 2014. However the court documents he has now provided indicates he was convicted and sentenced on 10 August 2012 (prior to his departure) to eighteen years for one offence and two years for another. In his statement of claims dated in February 2017 he claimed that his lawyer had appealed the decision but did not think it would be successful and did not appear to be aware of any further information in regards to his appeal. The translation of the court order dated indicates that an appeal was lodged on his behalf, and as a result, his sentence was reduced from 23 years imprisonment to 15 years by court order dated 11 March 2014. I find it difficult to believe that he would not be aware of his court appeal outcome that was finalised years prior in 2014. I also note that that there are a number of inconsistencies in these documents in regards to the numerical reference to his original conviction and the date of his first conviction and his original sentence. I also note that the translation of the power of attorney does not indicate a date of signature so I cannot be satisfied on the evidence when it was prepared. In his statutory declaration he claimed that these documents were sent to him electronically by his lawyer but he has not provided any evidence of these communications. Given these concerns the applicant has not satisfied me that the three court documents and power of attorney are credible personal information. I am also not satisfied there are exceptional circumstances to justify considering these documents.
g)noted as follows in relation to the Church Document (CB 356 at [7]):
7.In regards to the church letter, the applicants have provided the IAA with a handwritten letter from Bishop David Ronmez of The Church of Jesus Christ of Latter-day Saints who confirmed that the mother is a member of their church and that her home ward congregation is in Heathridge, I accept that the mother was baptised and attended this church so I accept that the letter is credible personal information. In her decision the delegate also accepted that the mother had attended church services since 2013 and had been baptised in this church. However, the delegate was not satisfied that she has a genuine commitment to, or a belief in, the Christian religion due to her significant lack of knowledge of the Christian faith and found that her attendance at church was about companionship rather than a deep personal connection to the religion. Although the delegate requested letters from the mother’s church or pastor to confirm her attendance and gave weight to the fact that no supporting documentation had been provided prior to her decision, the letter that has now been provided from her church merely states that the mother was a member of their church and the address of her home ward congregation. Given the lack of further information in the letter and that it provides little corroborative value in respect of the genuineness of the mother’s conversion, I am not satisfied it would have allayed the delegate’s concerns. I am not satisfied that, had the delegate received this letter, that it may have affected the consideration of the applicants’ claims. I am also not satisfied there are exceptional circumstances to justify considering this letter.
h)accepted that:
i)BDY18 followed the Ismaili religion and moved with his family to Mashhad when he was around 10 years of age (CB 358 at [12]-[13]).
ii)based on BDY18’s evidence and country information, it was plausible that as followers of a non-recognised sect of Ismaili, BDY18 and his family experienced social discrimination on the basis of their religion and that they moved to Mashhad for this reason (CB 358 at [14] and 359 at [17]).
iii)BDY18’s siblings lost their government jobs because of their religion and that gatherings were restricted (CB 358 at [14] and 359 at [17]).
iv)BDY18 disclosed his religion on his employment application and was told not tell his colleagues that he was Ismaili and was forced to attend Islamic prayers at this workplace (CB 358 at [15] and 360 at [17]).
v)BDY18 was offered short term contracts and not permanent employment because of his religion (CB 358 at [15] and 360 at [17]).
i)found it plausible that BDY18’s cousin may have been blamed for a crime because of his religion and killed many years ago (CB 358 at [14] and 359 at [17]).
j)found it plausible that BDY18’s failure to attend the anniversary of the death of the Ayatollah Khomeini and his religion would attract negative attention from his government employer. The IAA accepted that BDY18 did not attend the anniversary and was questioned on a number of occasions over 8 to 9 months and that he was accused of causing problems for not participating in certain workplace activities. The IAA was satisfied that the comments by BDY18 that he did not think Ayatollah Khomeini was the religious leader and that he did not want to participate in celebrating him would be taken seriously and it is plausible that his employment contract was not renewed for this reason (CB 360 at [18]).
k)was willing to accept BDY18’s claims about a dispute over an insurance claim in relation to a trip to Syria and that the claim was not paid because there was no Sheikh on the trip. BDY18’s oral evidence was compelling and detailed about this dispute (CB 361 at [20]). However, the IAA did not accept that BDY18 was questioned in 2010/2011 by workplace security and his contracts were not renewed and that he was subsequently detained by the Ettelaat because of the Syrian trip (CB 361 at [20]).
l)found that BDY18 did not provide the same level of detail about his second period of detention and that there was an inconsistent timeline of events (CB 361-362 at [21]). The IAA also found it difficult to believe that the Ettelaat would release BDY18 and then 4 months later he would receive a letter to attend court and be arrested again by the Ettelaat (CB 362 at [21]).
m)had concerns about inconsistencies in BDY18’s evidence and the plausibility of his subsequent court case and conviction (CB 362 at [22]).
n)was not satisfied that BDY18 had sent any further documentary evidence prior to the delegate’s decision and did not accept new information provided by BDY18 to support this claim (CB 355-356 at [4]-[7] and 362 at [22]).
o)did not accept that BDY18 was detained on a second occasion shortly before leaving Iran or that he was subsequently charged and required to attend court and convicted in his absence. The IAA found that BDY18 had fabricated these claims because there were inconsistencies about bail and advice from his lawyer about there being no case in court (CB 362 at [22]-[23]).
p)accepted, in relation to BEA18, that she was introduced to and attended church in Australia and was baptised on 26 October 2013 (CB 364 at [29]). The IAA also accepted that BEA18 had not told her family in Iran about her conversion. However, given BEA18’s lack of knowledge about her Christian faith, the IAA was not satisfied that she had a genuine belief in Christianity and did not demonstrate a genuine attempt to gain any knowledge in the 4 years since she had purportedly converted to Christianity (CB 363-364 at [26]-[29]).
q)found that the applicants did not meet the requirements of s.36(2)(a) of the Act (CB 367 at [42]).
r)concluded that the applicants were not owed complementary protection obligations (CB 367-368 at [43]-[48]).
Legislative Framework
Generally, the IAA will review a fast track reviewable decision without accepting or requesting new information and without interviewing the referred applicant: s.473DB of the Act.
However, 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.
Specifically, s.473DC of the Act provides:
(1)Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information ( new information ) that:
(a)were not before the Minister when the Minister made the decision under section 65; and
(b)the Authority considers may be relevant.
(2)The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(3)Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a)in writing; or
(b)at an interview, whether conducted in person, by telephone or in any other way.
Section 473DD of the Act, in turn, 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 the IAA.
Judicial Review Application
By way of their amended application dated 14 September 2018 the applicants rely on two grounds of review.
Ground 1
The IAA had erred in its task under s.473DD of the Migration Act 1958 (Cth) by misapplying the requirement that ‘new information’ be ‘credible personal information’ in s.473DD(b)(ii) of the Act.
Applicants’ submissions
The applicants did not particularise this ground in their amended application. The applicants did, however, submit as follows in their written submissions dated 14 September 2018:
a)The applicants provided ‘new information’ to the IAA which included the Court Documents and Power of Attorney. The IAA found at [6] of its reasons that these documents were not ‘credible personal information’.
b)In making the finding that these documents were not ‘credible personal information’, the IAA misapplied the requirement that ‘new information’ be ‘credible personal information’ as prescribed by s.473DD(b)(ii) of the Act.
c)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) criteria) meant that the ‘new information’ only needed to be ‘capable of being believed at the deliberative stage of the Authority’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.
d)The IAA’s approach to s.473DD(b)(ii) of the Act was wrong because it 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.
e)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.
f)However, 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).
g)The borrowing of findings in this context is not in itself wrong. In BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958, 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.
h)However, 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.
i)The IAA then used this 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.
During the hearing, counsel for the applicants drew the Court’s attention to the case of DHH16 v Minister for Immigration & Anor [2018] FCCA 1638 (“DHH16”). Counsel argued that this matter was on point and that Judge Driver’s approach in DHH16 should be followed.
Minister’s submissions
In response, the Minister relevantly contended:
a)The requirements of s.473DD(a) and s.473DD(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 M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 (“Plaintiff M174/2016”) 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)The findings of the IAA in relation to each of the documents amounting to new information were open to it on the material before it.
d)In relation to the documents, the IAA made findings that there were not exceptional circumstances to justify considering the new information. Those findings alone were sufficient to prevent the IAA from being able to have regard to the new information.
e)The Court should not conclude that the IAA’s discussion at [6] and [7] was a complete statement of the IAA’s reasons for why it did not consider exceptional circumstances existed in relation to the documents. Section 473EA(1) of the Act does not require the IAA to give its reasons for any “procedural” decision that it makes, including a decision whether to consider new information under section 473DD.
f)In Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594, Gummow J (with whom Heydon and Crennan JJ agreed) explained that s.430(1) (which corresponds with section 473EA(1)) “does not create any requirement that the Tribunal record generally ‘what it did’ in conducting its review, and does not require the Tribunal, in every case, to describe or state the procedural steps taken by it in reviewing the relevant decision”.
g)As explained by the High Court in Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173, where a decision-maker is not obliged to give reasons for a decision, “it is difficult to draw an inference that the decision has been attended by error of law from what has not been said by the [decision-maker]”.
h)In BVD17 v Minister for Immigration and Border Protection [2018] FCAFC 114 at [41]-[51]; BCQ16 v Minister for Immigration and Border Protection [2018] FCA 365 at [50]; CVS16 v Minister for Immigration and Border Protection [2018] FCA 951 at [26]-[29], the Courts have held that the IAA is not required to give reasons for procedural decisions made under section 473DD.
i)In so far as the IAA made findings that the documents were not “credible personal information” under section 473DD(b)(ii) of the Act, those findings do not give rise to jurisdictional error of the kind identified in CSR16.
j)In CSR16, Bromberg J found jurisdictional error, in that the IAA had imposed a higher standard of satisfaction than the criterion in section 473DD(b)(ii) requires. The Court interpreted “credible” in section 473DD(b)(ii) as meaning “capable of being accepted by the Authority as truthful (or accurate, or genuine)” and not whether the information “is true” (at [41]).
k)This Court is presently bound by the decision in CSR16. However, 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].
l)Parliament has plainly contemplated that the IAA might not be satisfied certain information is “credible”, otherwise section 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]).
m)In any event, the present case is distinguishable from CSR16 for the following reasons:
i)In its consideration of the documents, the IAA did not make a precursory finding that BDY18 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 applicants’ claims to review; 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 documents. That finding, under section 473DD(a), is sufficient to preclude the IAA considering the relevant documents. In the circumstances, if there is any error in the findings under section 473DD(b)(ii) (which is denied), those errors had no material effect, given the IAA’s findings under section 473DD(a) in this case (Hossain v Minister for Immigration and Border Protection [2018] HCA 34).
n)In so far as the applicants contend that the IAA’s decision under s.473DD(a) is infected by error because the IAA borrowed its flawed findings under s.473DD(b)(ii) to form the basis (or at least a significant part of the basis) of its assessment as to whether ‘exceptional circumstances’ existed (applicants’ submissions at [20]), no error arises as alleged.
o)As was explained 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 particular, White J saw no error in the IAA relying on a finding as to whether new information is credible personal information when deciding whether exceptional circumstances exist.
p)His Honour’s reasons in BVZ16 have been adopted and applied by a number of later decisions including Minister for Immigration & Border Protection v BBS16 [2017] FCAFC 176 at [102]-[106]; and CHF16 v Minister for Immigration & Border Protection [2017] FCAFC 192 at [17]-[18].
q)This issue was further considered by Judge Smith in DLB17 v Minister for Immigration [2018] FCCA 1299 (“DLB17”). In DLB17, His Honour specifically considered the issue of whether an error in relation to the test to be applied under s.473DD(b)(ii) affected the validity of the IAA’s consideration of section 473DD(a). His Honour said (at [43]):
… on the basis of the decision in CSR16, I conclude that the Authority was not addressing the correct question, but rather, determining whether it accepted the truth of the new information. It did not properly apply sub-s.473DD(b)(ii); however, whether the Authority accepts the credibility of new information is relevant to the question of whether there are “exceptional circumstances” for the purposes of s.473DD(a). That is so, whether credibility is taken at the entry level suggested in CSR16, or at the level of personal acceptance which the Authority adopted here. For that reason, and because I accept that the Authority took into account all of the circumstances (as it said), I find that its finding that s.473DD(a) was not met was open to it on the approach that it took.
r)In the circumstances, even if the IAA in the present case erred in its findings in respect of section 473DD(b)(ii) (which is denied), it was still open to the IAA to consider those findings when considering section 473DD(a). Any error for the purposes of section 473DD(b)(ii) does not also infect any findings under section 473DD(a) of the Act.
s)In all the circumstances of this case, no jurisdictional error arises in relation to the IAA’s assessment of the new information in this case.
During proceedings, counsel for the Minister argued that DHH16 was “very different” to the case currently before this Court.
Consideration
Section 473DD(b)(ii) of the Act
Relevantly, the IAA was not satisfied that the Court Documents, Power of Attorney and Church Document were not and could not have been provided to the delegate before the delegate made its decision (CB 356 at [5]). As a result, the applicants failed to satisfy s.473DD(b)(i) of the Act in relation to these documents. It was therefore necessary for the documents to meet the requirements of s.473DD(b)(ii) of the Act.
The applicants’ amended application challenges the IAA’s finding as they relate to the Court Documents and the Power of Attorney.
The applicants argue that the IAA was not satisfied that the Power of Attorney and Court Documents were “credible personal information” because it did not believe the new information. The applicants argue that this is an error because the IAA should have found that the documents were not capable of being believed.
Ground 1 turns upon a determination of whether the IAA applied too high a threshold as it relates to the ‘credibility’ of the ‘new information’ (namely the Court Documents and Power of Attorney) and, as a consequence, whether the IAA misapplied s.473DD(b)(ii) of the Act. The applicants rely on the findings made by the Federal Court of Australia in CSR16 to support this proposition.
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.
In CSR16 found that the ‘new information’ before it was not credible because the applicant’s fear was not genuine: CSR16 at [35]. The error made by the IAA in CSR16 was deliberating on and forming a concluded view about the applicants’ claims before it determined what information it could and could not have regard to.
As noted by Judge Smith in EAA16 v Minister for Immigration & Anor [2018] FCCA 2624 (“EAA16”) at [42], the question of genuineness of a claimed fear is one that has to be determined after the IAA has determined what information it can and cannot have regard to and not before it has made that determination. This Court agrees.
As noted above, the Minister submitted here that the intellectual step of deliberating on and forming a concluded view about the applicants’ claims that occurred in CSR16 is not present in this matter. As such, CSR16 is distinguishable.
Here, the IAA had concerns about the credibility of the Court Documents and Power of Attorney. In assessing whether the Court Documents and Power of Attorney satisfied s.473DD(b)(ii) of the Act, the IAA made the following relevant observations at [6]:
a)in his application for protection BDY18 indicated that the applicants departed Iran on 18 February 2013 and he was convicted and sentenced to 15 years towards the end of 2014;
b)the Court Documents indicate BDY18 was convicted and sentenced on 10 August 2012 (prior to his departure) to eighteen years for one offence and two years for another;
c)the translation of the Court Documents dated indicates that an appeal was lodged on BDY18’s behalf, and as a result, his sentence was reduced from 23 years imprisonment to 15 years by court order dated 11 March 2014;
d)it was difficult to believe that BDY18 would not be aware of his court appeal outcome that was finalised years prior in 2014;
e)there are a number of inconsistencies in the Court Documents in regards to the numerical reference to his original conviction and the date of his first conviction and his original sentence.
f)the translation of the Power of Attorney does not indicate a date of signature and as a result the IAA could not be satisfied on the evidence when the Power of Attorney was prepared; and
g)BDY18 claimed in his statutory declaration that these documents were sent to him electronically by his lawyer but he has not provided any evidence of these communications.
The Court is not satisfied that when the IAA undertook its review of the Court Documents at [6] of its reasons it was only engaged in a process of assessing whether the Court Documents were capable of being accepted as truthful, accurate or genuine (CSR16). Rather, the IAA assessed the truthfulness of the contents of the Court Documents.
The IAA notes several inconsistencies between BDY18’s evidence contained in his application for protection and the information contained within the Court Documents. For those reasons, the IAA concluded that the Court Documents were not credible personal information.
The IAA stated that, given its concerns, outlined at [6] of its reason, the applicants had not satisfied it that the Court Documents and Power of Attorney are credible personal information. From a plain reading of the IAA’s reasons for decision at [6], the Court accepts that the IAA did not accept the Court Documents as being ‘credible’ because they were inconsistent with BDY18’s evidence contained in his application for protection. In doing so the IAA made a determination, albeit impliedly, as to whether the “new information” was true.
Accordingly, the IAA’s conduct is demonstrative of the type of error found by Bromberg J in CSR16. “Credible” in section 473DD(b)(ii) has the meaning “capable of being accepted by the Authority as truthful (or accurate, or genuine)” and not whether the information “is true” (CSR16 at [41]).
The Court notes that the IAA made reference to a number of inconsistencies in the Court Documents in regards to the numerical reference to BDY18’s original conviction and the date of his first conviction and his original sentence. The Court is willing to accept that when making this observation the IAA was suggesting that the Court Documents may not be capable of being accepted as truthful, accurate or genuine. However, the IAA did not expand on these observations and the Court is unwilling to accept that this comment remedies what the Court considers to be to a misapplication of s.473DD(b)(ii) of the Act.
In relation to the Power of Attorney, the IAA utilised the findings it made about the credibility of the Court Documents to conclude that the Power of Attorney was also not credible personal information (CB 356 at [6]). As a result, the finding that the Power of Attorney is not credible personal information was infected by the IAA’s misapplication of s.473DD(b)(ii) in relation to the Court Documents.
Exceptional Circumstances
Section 473DD of the Act prohibits the IAA from considering new information unless two conditions are satisfied. There must be “exceptional circumstances to justify” considering the new information and ss.473DD(b) must also be satisfied.
As explained by a majority of the High Court in Plaintiff M174/2016 at [30] in relation to s.473DD(a) “[q]uite what will amount to exceptional circumstances is inherently incapable of exhaustive statement”. Further, the matters that the IAA takes into consideration when determining whether exceptional circumstances exist must necessarily vary from case to case: AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111 at [14].
The Court accepts that the factors in s.473DD(b)(ii) may contribute to the IAA’s satisfaction as to whether ‘exceptional circumstances’ to justify considering the new information exist (BVZ16 at [9] per White J).
In this matter, the IAA determined that ‘exceptional circumstances’ did not exist such that it was prohibited under ss.473DD from considering the Court Documents, the Power of Attorney and the Church Document. The IAA stated at [6] and [7] of its reasons:
I am also not satisfied there are exceptional circumstances to justify considering these documents.
As noted above, counsel for the applicants made oral submissions that Driver J’s approach in DHH16 should apply to this case. In relation to whether DHH16 relates to this matter, the Court is persuaded by the Minister’s argument that DHH16 is very different to the case currently before this Court.
The Court in DHH16, in effect, found that there had been too narrow an interpretation of exceptional circumstances because the IAA did not consider both limbs of s.473DD(b) of the Act and did not consider whether there might be other relevant material.
That is not the case in this matter.
Here, the IAA determined that the new information did not satisfy either s.473DD(b)(i) or s.473DD(b)(ii) of the Act. This is clear from its reasons at [6] and [7].
On a plain reading of the IAA’s decision at [6] and [7], the IAA arrived at its conclusion that no exceptional circumstances existed after it considered both s.473DD(b)(i) and s.473DD(b)(ii) in some detail. The Court is satisfied that it used these findings to inform its decision that there were no exceptional circumstances to justify considering the documents.
Having made the finding that that the IAA did use the finding it had made in relation to s.473DD(b)(ii) when determining if there were ‘exceptional circumstances’ pursuant to s.473DD(a), the issue still remains as to whether this caused the IAA to commit jurisdictional error in completing its task under s.473DD of the Act.
Jurisdictional error
In 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.
Since the hearing of this matter, DLB17 was upheld on appeal by the Full Court of the Federal Court of Australia in DLB17 v Minister for Home Affairs [2018] FCAFC 230 (“DLB17 Appeal”). On appeal, the Full Court relevantly stated at [21]-[22]:
21.Consistently with this position, the Full Court has held that each case must be treated on its own merits and the considerations relevant to the existence of exceptional circumstances will vary from case to case: AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111 per McKerracher, Murphy and Davies JJ (at [14]).
22.In this case, the Authority said that it had considered the question of exceptional circumstances by reference to “all the circumstances”: see Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; (2017) 257 FCR 111 per Kenny, Tracey and Griffiths JJ (at [104]). The Authority was not obliged to articulate its reasoning in any greater detail: CVS16 v Minister for Immigration and Border Protection [2018] FCA 951 per Bromwich J (at [25]-[30] and the citations therein cited). The assessment of exceptional circumstances does not require the Authority, in all cases, to consider the matters relevant to the criterion in s 473DD(b)(ii): AQU17 (at [14]). The Authority is, however, permitted to consider these matters, including by assessing whether the information is credible: AQU17 (at [16]). Even if the credibility of information for the purposes of s 473DD(b)(ii) is to be assessed at the lower threshold suggested by the primary judge (that is that the new information is arguable), there is no prohibition on the Authority going further when considering the requirement for exceptional circumstances. That is, the Authority may, even if it accepts a contention to be arguable, test it so as to consider for itself whether it is satisfied as to the truth of the new information. Any suggestion to the contrary would be inconsistent with the decision in Plaintiff M174/2016 and the purposely broad range of considerations relevant to the establishment of exceptional circumstances.
(Emphasis added)
Following the Full Court’s reasoning in DLB17 Appeal, the Court finds that the IAA’s finding in relation to s.473DD(a) was not ‘infected’ by its misapplication of credibility threshold in relation to s.473DD(b)(ii). It was open to the IAA to make factual findings as to the truth of the Power of Attorney and Court Documents when determining if exceptional circumstances existed and it did so here.
It cannot be said here that the IAA’s misapplication of s.473DD(b)(ii) of the Act had any material effect on its review. The IAA was able to make the same factual findings as to the truth of the Power of Attorney and Court Documents when determining if exceptional circumstances existed in relation to s.473DD(a). An error under s.473DD(b)(ii) of the Act does not equate to an error under s.473DD(a) in the specific context of this matter.
There is also no apparent error in the factual findings which supported the IAA’s credibility conclusions. Nor have the applicants suggested that any of the findings that the IAA made at [6] and [7] of its reasons are wrong.
Further, it has not been argued that the IAA, in its determination of s.473DD(a), should have considered other relevant matters which it did not. If that had been the case, the IAA’s approach would clearly amount to an error. Here, the Court is satisfied that the IAA took into account all circumstances relevant to determining whether exceptional circumstances existed.
Accordingly, the Court finds that the IAA’s finding that s.473DD(a) of the Act was not met was open to it and the approach taken sound.
Applying BRA16 and DLB17 Appeal (as well as observing the approach of Judge Vasta in EDH17 v Minister for Immigration & Anor [2018] FCCA 2965 at [30]-[34]), the Court concludes that the IAA’s misapplication of s.473DD(b)(ii) does not constitute jurisdictional error because it did not affect the IAA’s task under s.473DD of the Act. This is so because the requirements of s.473DD are cumulative and the IAA’s findings in relation to s.473DD(a) of the Act were open to it.
As a result of the IAA’s conclusion that there were no “exceptional circumstances”, the IAA was prohibited from considering the Power of Attorney, Church Documents and Court Documents.
Accordingly, Ground 1 fails.
Ground 2
The IAA unreasonably failed to consider whether to exercise its power under s 473DC of the Act to obtain ‘new information’ about the treatment of Ismailis in Iran.
Applicants’ submissions
In relation to Ground 2, the applicants submitted:
a)BDY18 raised claims that he ‘follows the Ismaili faith, a minority Shia Muslim sect regarded as heretical in Iran’. The IAA accepted that BDY18 follows the Ismaili sect of Islam as he ‘demonstrated a detailed understanding of the religion when questioned by the delegate during the protection visa interview’ (CB 358 at [12]).
b)The IAA further accepted that BDY18 and his family has suffered mistreatment in the past for reasons of their Ismaili religion. Specifically, the IAA accepted that:
i)‘as followers of a non-recognised sect of Islam, [BDY18] and his family experienced social discrimination on the basis of their religion and that they moved to Mashhad for this reason’ (CB 359 at [17]);
ii)BDY18’s ‘siblings had lost their government jobs for this reason, that their religious gatherings were restricted’ (CB 359 at [17]);
iii)BDY18’s ‘cousin may have been blamed for a crime because of his religion and killed many years ago’ (CB 359 at [17]);
iv)‘the combination of the [BDY18’s] religion and action by not attending the anniversary of the death of Ayatollah Khomeini would have attracting [sic] negative attention from his government employer’ and that he ‘was subsequently questioned in this regard on a number of occasions over eight to nine months and accused of causing problems for not participating in certain activities in his workplace’ (CB 360 at [18]);
v)BDY18’s ‘comments to his government employer, that he did not think Khomeini was the religious leader and did not want to participate in celebrating him, would be taken seriously and it is plausible that his contract was not renewed for this reason’(CB 360 at [18]); and
vi)BDY18 ‘was detained on one occasion by the Ettelaat as he claims and was questioned about his religion and asked to spy for them’ (CB 361 at [21]).
c)The above extract represents the only country information considered by the IAA in relation to the treatment of Ismailis in Iran. By the IAA’s own assessment, this amounted to ‘very little country information’ relating to BDY18’s core claim for protection.
d)Importantly, the IAA’s complaint was not that there was ‘very little country information’ supporting the BDY18’s claims, but rather, that there was ‘very little country information’ on the subject matter generally.
e)However, despite conceding that there was ‘very little’ information before it, the IAA then went on to make a determinative finding:
Although I accept that the Ismaili sect may be subject to official and social discrimination in Iran as a non-recognised sect of Islam, there is no recent country information before me that indicates that the Ismaili community in Iran are being actively targeted and persecuted by the Iranian community or government.
f)While there was no ‘duty’ for the IAA to get new information (i.e. country information) on the current treatment of Ismailis in Iran (owing to the operation of s.473DC(2)), the relevant question is whether its failure to do so was reasonable (see Plaintiff M174/2016 at [21]).
g)In Plaintiff M174/2016, the High Court held that a failure by the IAA to exercise its discretionary power under s.473DC(3) to get ‘new information’ may be challenged on the grounds of legal unreasonableness: per Gordon J at [86] and Edelman J at [97]. The Full Court of the Federal Court also held the same in Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210 (“CRY16”) and Minister for Immigration and Border Protection v DZU16 [2018] FCAFC 32 (“DZU16”).
h)In FGC17 v Minister for Immigration & Anor [2018] FCCA 2217, Kendall J outlined at [64]-[68], the application of legal unreasonableness in relation to the IAA’s discretionary powers under s.473DC:
64.“Unreasonableness” can be inferred in circumstances where it is unclear how the decision maker arrived at their decision not to exercise a discretionary power: Li at [76]. The inference is made having regard to the facts and to the statutory purpose to which the discretion to obtain new information under s.473DC(3) of the Act is directed: Li at [82] and CRY16 at [83].
65.The applicant bears the onus of establishing the basis for drawing the inference necessary to make out the alleged jurisdictional error: Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594 at [67].
66.A conclusion that the exercise of the discretionary decision-making power is unreasonable arises where the decision “lacks an evident and intelligible justification” (Li at [76]) and involves scrutiny of the factual circumstances in which the power comes to be exercised: Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at [48].
67.It is accepted that the discretionary powers conferred on the IAA by s.473DC of the Act are to be exercised reasonably (CRY16 at [81]-[82]) and that there are circumstances in which it may be legally unreasonable not to consider the exercise of the discretionary power under s.473DC(3) of the Act (DZU16 at [88]).
68.In order to be successful here, the applicant must show that the IAA’s decision not to exercise its discretionary powers under s.473DC(3) of the Act was ‘unreasonable’ because the decision cannot be justified intelligibly on the particular facts of this case.
i)There is no evidence to suggest that the IAA exercised, or even considered exercising, its power under s.473DC to obtain documents or information to remedy the delegate’s inadequate collection of country information.
j)After finding that it has ‘very little country information’ at hand (i.e. in the ‘review material’), it was legally unreasonable for the IAA not to turn its mind to whether it should obtain more country information (even if it were to ultimately decide not to). Part of the reason for this is because ‘attention to current information is not merely preferable, it is a core aspect of lawful formation of a state of satisfaction’ as to the criterion in s.36(2): Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 (“MZYTS”) at [73]. Although MZYTS related to a Tribunal decision and not an IAA decision, the broader principle that ‘attention to current information … is a core aspect of lawful formation of a state of satisfaction’ remains relevant.
k)The applicants do not advance this argument as a broad proposition. It appears clear from s.473DC(2) that the IAA does not have an obligation to seek out more information, or even verify whether the information before the delegate was adequate for the purpose of making a decision under s.36(2) of the Act. However, given the IAA’s own finding that the country information before it was inadequate, the requirement of reasonableness meant the IAA was required to consider obtaining new information itself.
l)As such, it was unreasonable for the IAA not to turn its mind to the consideration of whether it should pro-actively obtain (or attempted to obtain) new information, in circumstances where the IAA itself conceded that amount of information before it was insufficient.
Minister’s submissions
In response, the Minister submitted:
a)Ground 2 alleges that the IAA unreasonably failed to consider whether to exercise its power under s.473DC of the Act to obtain ‘new information’ about the treatment of Ismailis in Iran.
b)Legal unreasonableness as a ground of review is established in migration matters in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 (“Li”); and, more recently, Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 (“SZVFW”) and Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1.
c)The High Court has observed, with reference to s.75(v) of the Constitution and jurisdictional error, that where a statutory power is conferred the legislature is taken to intend that the discretion is to be exercised reasonably (Minister for Immigration and Citizenship v SZIAI [2009] HCA 14; (2009) 259 ALR 429) and justly (see Kruger v The Commonwealth [1997] HCA 27; (1997) 190 CLR 1 at 36 per Brennan CJ) (see also Li at [65]-[66] per Hayne, Kiefel and Bell JJ, where the majority explained that a decision made in the exercise of a statutory power is unreasonable in a legal sense when it lacks an evident and intelligible justification (at [76])).
d)The requirement that a statutory power be exercised within the bounds of reasonableness is an implied condition of the statutory conferral of the power (SZVFW at [53] (Gageler J) at [80] (Nettle and Gordon JJ) and at [131] (Edelman J); see also Plaintiff M174 at [21]). The precise content of that which is required must be determined as a matter of statutory construction of the relevant provisions giving rise to the discretion. Part of that process will involve a consideration of the nature of the repository of the power (SZVFW at [51]-[53], [84] and [134]-[135]).
e)Ground 2 cannot succeed in the present case, when one has regard to the statutory obligations of the IAA in Part 7AA of the Act.
f)It is clear that the purpose of Part 7AA is to provide a mechanism for a limited review of fast track reviewable decisions. Division 3 of Part 7AA and s.473DA of the Act make clear that the Division is an exhaustive statement of the natural justice hearing rule in relation to reviews conducted by the IAA. The common law rules of procedural fairness do not govern the way in which reviews by the IAA are to be conducted under Part 7AA of the Act (Plaintiff M174 at [20]; CCW16 v Minister for Immigration and Border Protection [2017] FCCA 2 at [69]).
g)The combined effect of ss.473DA(1), 473DB(1) and 473DC(2) of the Act, is that the IAA was required, as a primary requirement (Plaintiff M174 at [22]), to conduct a review of the delegate’s decision on the papers, expressly without the need to provide an opportunity for an applicant to provide further information or to interview an applicant and provide an opportunity for comment (Plaintiff M174 at [22]; DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12 at [69]; EUQ17 v Minister for Immigration [2018] FCCA 696 per Judge Lucev at [24]).
h)More specifically, the Act provides that the IAA is not under any duty to get, request or accept any new information, even if requested to do so by a referred application, another person, “or in any other circumstances” (s.473DC(2)). The clear statement that there is no duty to get new information is understandable when regard is had to the limited nature of the review provided under Part 7AA of the Act.
i)In Plaintiff M174, Gageler, Keane and Nettle JJ made the following observations on the difference between the review provided by the IAA compared to reviews by other Tribunals (at [42]):
Unlike the Administrative Appeals Tribunal, the former Refugee Review Tribunal, and the former Migration Review Tribunal, the Authority is not empowered to set aside the decision under review and to substitute its own decision. Nor is the Authority empowered to “exercise all the powers and discretions that are conferred” on the person who made the decision under review.
j)The Court concluded in Plaintiff M174 that the IAA’s review is of the decision to refuse to grant a protection visa to a fast-track applicant, regardless of whether or not the decision under review is legally effective (at [52]).
k)The clear legislative intent expressed in s.473DC(2) is that, under no circumstances, is the IAA under a duty to get, request or accept any new information. In CRY16, the Full Court held that whilst the IAA is not under a duty to get information, a failure to consider getting new information may be unreasonable if (as in that case) the new information relates to an issue that was not before the delegate (in that case, the issue of relocation, which had not been addressed in the interview with the delegate) (at [82]; see also [72], [75]-[76]. See also Minister for Immigration and Border Protection v DZU16 [2018] FCAFC 32 (“DZU16”).
l)The present case is distinguishable from CRY16 and DZU16, in that the determinative issues in the present case were the same before the delegate and the IAA. This is not a case where new information or a new issue had arisen upon which the applicant had not had the opportunity to comment.
m)For these reasons, an obligation to consider exercising the power under s.473DC did not arise in this case. That is particularly so when regard is had to the fact that the weight that the IAA gives to country information is a matter for it, as part of its fact-finding function (Minister for Immigration & Multicultural Affairs v Indatissa [2001] FCA 181; (2001) 64 ALD 1 at [32] per Sundberg, Emmett and Conti JJ). Similarly, the question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court (NAHI v Minister for Immigration and Indigenous Affairs [2004] FCAFC 10 at [11]).
n)It is well established in the context of reviews under Part 7 of the Act that, the Tribunal is not obliged to investigate or conduct an inquiry to discover whether a visa applicant’s case might be better put or supported by other evidence (Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41 at [36] and [49]; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43]; Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20]). Those principles would apply equally to reviews under Part 7AA, particularly given that the primary requirement expected of the IAA (Plaintiff M174 at [22]) is to conduct a review of the decision on the papers, without providing an opportunity for an applicant to provide further information, or interview an applicant, or provide an opportunity for an applicant to comment, or for the IAA to get, request or obtain new information from an applicant.
o)Having regard to the statutory scheme created by Part 7AA of the Act, it cannot be said that the IAA in the present case had any obligation to consider exercising its powers under s.473DC of the Act.
p)In all the circumstances, the IAA did not act unreasonably in not exercising its powers under s.473DC of the Act, and jurisdictional error cannot and does not arise in this case.
Consideration
In this matter, the applicants allege that the country information before the IAA was ‘inadequate’ and that, when the IAA noted, in relation to the treatment of Ismailis in Iran that it had (by its own assessment), ‘very little country information’ relating to BDY18’s core claim for protection it should have considered exercising its power under s.473DC(3) of the Act and sought more information.
It is well accepted that the discretionary powers conferred on the IAA by s.473DC of the Act are to be exercised reasonably. However, the Court does not agree with the applicants’ proposition that the country information before the IAA was ‘inadequate’ or that the IAA ought to have considered exercising its power under s.473DC(3) of the Act.
In this regard the Court notes as follows:
a)In Plaintiff M174, the High Court stated:
20.Division 3 of Pt 7AA governs the conduct of the review by the Authority in a manner which also bears on the nature of a fast track reviewable decision that is capable of being the subject of that review. In the same way as subdiv AB of Div 3 of Pt 2 is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters with which it deals in relation to the initial decision of the Minister or delegate, Div 3 of Pt 7AA "is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by [the Authority]"[22].
21.There is no dispute between the parties that the various powers conferred on the Authority by Div 3 of Pt 7AA are conferred on the implied condition that they are to be exercised within the bounds of reasonableness, in the sense explained in Minister for Immigration and Citizenship v Li[23], with the consequence that an unreasonable failure to exercise such a power can render invalid a purported performance by the Authority of the duty imposed on it by s 473CC to conduct a review and either to affirm or to remit the decision under review.
22.Within Div 3, s 473DB sets out the primary requirement that, subject to the Part, the Authority is to review a fast track reviewable decision referred to it under s 473CA by considering the review material provided to the Authority under s 473CB without accepting or requesting new information and without interviewing the referred applicant. To that primary rule, subdiv C of Div 3 admits of exceptions. The principal provisions of subdiv C providing for those exceptions are contained in ss 473DC, 473DD and 473DE. Close attention needs to be paid to each of those provisions and to their interrelationship.
(Emphasis added)
b)The choice and interpretation of country information is a factual matter for the decision maker alone: ApplicantNABD of 2002 v Ministerfor Immigration and Multicultural and Indigenous Affairs (2005) 84 ALD 545.
c)There was no ‘duty’ on the part of the IAA to get new information (i.e. country information) on the current treatment of Ismailis in Iran because of the operation of s.473DC(2) of the Act. It had information before it that it had determined was both relevant and reliable (CB 359 at [16]).
d)Under Part 7 of that Act, the Tribunal is not obliged to investigate or conduct an inquiry to discover whether a visa applicant’s case might be better put or supported by other evidence: SZNVW [36] and [49]. The Court agrees with the Minister’s submission that given the statutory context of the IAA’s review under Part 7AA (Plaintiff M174 at [22]), that this applies equally to the IAA.
e)The Court agrees with the respondent’s submissions that neither CRY16 nor DZU16 are applicable to the facts of this case. Those cases, which criticise the IAA for not exercising its discretion, involve the IAA addressing a new issue that had not been dealt with by the delegate. That is not the case here.
f)A conclusion that the exercise of the discretionary decision-making power is unreasonable arises where the decision “lacks an evident and intelligible justification” (Li at [76]).
By its own admission, the IAA noted that there was “very little” country information relating to BDY18’s core claim for protection. However, the IAA did have country information before it relating to BDY18’s core claims for protection which it utilised to form the relevant conclusions on the applicants’ protection claims. The IAA did not state in its reasons that the information it had was “inadequate” or “insufficient”, such that it, reasonably, ought to have obtained more information.
Having regard to the above, the Court is not satisfied that that the IAA’s failure to consider the exercise of its discretionary power under s.473DC(3) of the Act was legally unreasonable. Rather, it was logical and justified. It had relevant country information before it which it utilised to complete its review within the confines of the statutory scheme created by Part 7AA of the Act.
Having regard to the Court’s observations at paragraph 61 above, the particular circumstances of this case fall short of engaging any obligation on the part of the IAA to exercise the power pursuant to s.473DC(3) of the Act.
Accordingly, Ground 2 fails.
Conclusion
The applicant’s application for judicial review is dismissed.
I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 5 February 2019
42
2