BEC17 v Minister for Immigration

[2018] FCCA 1711

FEDERAL CIRCUIT COURT OF AUSTRALIA

BEC17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1711

Catchwords:
MIGRATION – Application for judicial review of decision of Immigration Assessment Authority (IAA) affirming decision not to grant a temporary protection visa – whether the IAA addressed applicant’s claim based on his being a returnee from a Western country – whether IAA failed to consider claim based on generalised violence – whether the IAA applied an erroneous understanding of the kind of harm the risk of the occurrence of which the applicant was required to prove – whether IAA assessed the applicant’s claimed fear of harm in the region from which he came by reference to the risk of harm in another region – whether IAA adopted an unnecessarily narrow construction of “exceptional circumstances” when considering whether it should consider new information – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.5H(1),36(2)(aa), 65, 473DC(1), 473DD, 473GB

Cases cited:

BA (Returns to Baghdad) Iraq CG [2017] UKUT 00018 (IAC)
Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176
MZAFZ v Minister for Immigration & Border Protection [2016] FCA 1081

Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018]

HCA 16

Applicant: BEC17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 828 of 2017

Judgment of: Judge Manousaridis

Hearing date: 12 June 2018

Date of Last Submission: 12 June 2018

Delivered at: Sydney

Delivered on: 29 June 2018

REPRESENTATION

Counsel for the Applicant: Mr A Kumar

Solicitor for the Applicant: Westside Legal

Solicitor for the First Respondent: Mr T Galvin of Minter Ellison Lawyers

ORDERS

1. The application to amend the application to include a ground based on the first respondent’s not having disclosed to the applicant the certificate dated 18 January 2017 that was issued purportedly pursuant to s.473GB of the Migration Act 1958 (Cth) (Act) is dismissed.

2. The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 828 of 2017

BEC17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, who is a citizen of Iraq and a Shia Muslim, applies for judicial review of a decision made by the second respondent (IAA) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Temporary Protection (subclass 785) visa (TPV).

Claims for protection

1. The applicant stated his claims for protection in a statutory declaration that forms part of his application for a TPV.[1] In that declaration the applicant stated as follows:

   a)He has a wife and two children who live in Iraq, three brothers who live in and are citizens of Australia, a brother who lives in Germany, a sister who lives in Sweden, and other sisters who live in Iraq.

   b)The applicant fears returning to Iraq because in Basra, being the city in which the applicant had lived all his life, lawlessness and chaos, kidnapping and extortion of those who have family members is very common, and those who have family overseas are usually perceived to be wealthy and targeted by gang members or militia members “on these bases”.

   c)The applicant fears he will be killed or kidnapped if he goes back to Iraq because the community there at large knows he has siblings who live in Australia, Germany, and Sweden. The applicant is aware of some people who lost their lives even though their families paid the ransom gangs wanted. He referred to his cousin having been kidnapped one year before the applicant departed Iraq and released only after his cousin’s family paid the kidnappers USD50,000; and to a neighbour, who was a doctor, also having been kidnapped just one month before the applicant left Iraq.

   d)The applicant escaped from Iraq because a few days before his departure he heard from a friend and neighbours that “the gang started to intensify its efforts to kidnap people who are perceived as wealthy in the street” where the applicant lived; and that some of the applicant’s friends told him that “eyes on me” because the applicant has all of his brothers overseas.

   e)One night a “group of people forced their way into our house” while the applicant and his family were visiting his relatives.

   f)Around six months after he arrived in Australia, the applicant’s wife and children moved to live with his wife’s family in the outskirts of Basra because “of the fear we have that my kids will be kidnapped because of the perception about our wealth”.

   [1] CB71

2. The applicant concluded his statutory declaration as follows:[2]

   I seek Australia’s protection as a member of a particular social group, namely the perception about me and my family in Iraq because we have brothers in the overseas countries.

   [2] CB72, [9]

IAA’s reasons

1. The IAA was satisfied the applicant’s evidence was accurate.[3] The IAA, therefore, accepted the applicant fears being killed or kidnapped by criminals; that his cousin had been kidnapped and held for ransom for ten days; that other kidnappings may have occurred in Basra; that he was the victim of a house breaking and theft while he and his family were not at home; and that the applicant has family members who reside in Western countries.[4] The IAA, however, was not satisfied the house breaking was an attempted kidnapping.[5]

   [3] CB162, [7]

   [4] CB162, [8], [9]

   [5] CB162, [9]

2. The IAA found that the applicant’s cousin’s kidnapping appeared to be a “crime of opportunity rather than a planned event specifically targeting the applicant’s cousin”. The IAA noted that the applicant and his family lived in Basra from 2006 until the applicant departed in 2013, the applicant’s household had a single income and that he worked as a construction labourer, and the applicant does not own a motor vehicle. The IAA further noted that, apart from his having a number of siblings who fled Iraq and sought asylum overseas, the applicant provided no evidence to indicate why his household would be perceived as a high value target such that it would be of particular interest to criminals or militias.[6]

   [6] CB164, [14]

3. The IAA then considered whether there was a real chance the applicant would be the victim of kidnapping or other acts of violence in the foreseeable future if he were to return to the Basra area. The IAA concluded the applicant does not have a real chance of being harmed on that basis. It relied on the following matters:

   a)Neither the applicant nor his family have been the victims of more serious crimes in the past.

   b)The applicant did not state that any of his siblings who remain in the Basra area, or his wife or children, have been victims of any crimes since he departed Iraq.

   c)Country information indicated that while generalised violence occurs it is at a significantly lower level than in Baghdad. The IAA referred to information contained in the “DFAT Country Report, Iraq” dated 13 February 2015 that in 2013 the number of casualties in Basra was 10% of that in Diyala province. The IAA also referred to country information that suggested that violent crime in Iraq has increased significantly since the beginning of 2013, but found there was nothing in the materials referred to in submissions made by the applicant to indicate the prevalence of serious crime is now at such level where there is a real chance that the applicant would be the victim of more serious crime such as kidnapping or other acts of violence in the foreseeable future, should he return to Basra.

4. The IAA also considered whether the applicant faced a real chance of harm if he were to return to Iraq because he is a Shia Muslim, even though the applicant made no such claim. The IAA noted that the applicant originates from a Shia dominated region of Iraq; and although there was evidence that Sunni armed groups have attacked locations in the southern provinces, “overall the level of violence is much lower [there] than elsewhere in Iraq”. The IAA also noted that while material to which it referred indicated that violence does occur in cities such as Basra, it was not satisfied  “on the referred material that there is a real chance that the applicant will suffer serious harm in Basra as a result of Sectarian conflict”. The IAA also considered whether the applicant is at real risk of harm “from generalised violence of Shia militias or armed groups due simply to being a Shia”, and concluded there was nothing in the referred material to indicate that he is.[7]

   [7] CB164, [16]

5. The IAA considered the applicant’s claim that he faced harm due to his having left Iraq and having sought asylum in Australia. The IAA found there was nothing in the country information it identified to suggest that returnees are perceived as wealthy and consequently targeted by criminals, and concluded it was not satisfied the applicant faces a real chance of harm on the basis that he has spent time in Australia or that he subsequently sought asylum in Australia.[8]

   [8] CB164-165, [17]

6. On the basis of the findings the IAA concluded it was not satisfied the applicant was a refugee within the meaning of s.5H(1) of the Migration Act 1958 (Cth) (Act). Relying on the same findings, the IAA concluded there are not substantial grounds for believing that as a necessary and foreseeable consequence of being returned from Australia to Iraq, there is a real risk that the applicant will suffer significant harm and, therefore, the applicant did not satisfy the complementary criterion provided for by s.36(2)(aa) of the Act.

Ground 1

1. The applicant relies on the two grounds stated in the amended application. The applicant also makes a formal submission in relation to a matter which is not stated in the amended application.

2. The first ground is as follows:

   The Authority fell into jurisdictional error in failing to address claim/issue in relation to the risk to the Applicant upon return to Iraq whilst it has addressed the risk of general population in the Applicant’s area of habitual residence (IAA at [15]-[16]) it failed to address whether the Applicant returning from overseas would be at risk rather addressing only claim/issue whether because he has relatives in western countries but failed to address whether the Applicant was at risk whether as returnee and/or cumulatively with the risk from increased violence.

   Particulars

   1.1The Authority fell into error as it failed to take into account the issue of the Applicant’s risk as returnee from Western country.

   1.2The Authority had fallen into error failing to consider this with the risk of generalised violence.

   1.3The issue of previous targeting/cumulatively with generalised information [sic] was not considered.

   1.4The Authority had fallen into jurisdictional error.

Parties’ submissions

1. In his written submissions the applicant submits the IAA failed to apply the correct test in relation to sectarian violence to the applicant’s circumstances when assessing whether the applicant had a well-founded fear of persecution.[9] The applicant submits the IAA failed to engage with the applicant’s claims, because it instead “found that “generalised violence does occur, it is significantly lower than Baghdad” (CB 164 at [15]) and this did not attract protection”. The applicant submits the IAA appears “to construe the Applicant or the family members have to be victims “of more serious crimes” (CB 164 at [15])”.[10] He also submits:[11]

   The Applicant’s claim was of violence and related circumstances of the Applicant. The incidences of sectarian violence increased the risk to the Applicant. The claims of the Applicant can amount to serous [sic]/significant harm whilst the Authority is engaging with victims “of more serious crimes” and misapprehending the definitions of this under the Act and the Applicant’s case.

   [9] Applicant’s Outline Submissions, [14]

   [10] Applicant’s Outline Submissions, [15]

   [11] Applicant’s Outline Submissions, [16]

2. At the hearing before me Mr Kumar, who appeared for the applicant, said that the essence of the applicant’s case in ground 1 is that the IAA assessed the risk of harm to the applicant by reference to the relative risk of harm which persons in the Basra area faced compared to the risk persons faced in other parts of Iraq, and in particular in Baghdad; and that the IAA failed to consider whether the risk the applicant would face would amount to significant harm. Mr Kumar submitted that the fact the level of violence in the Basra area might be 10% of the level of violence elsewhere did not necessarily mean that the applicant did not face a real risk of significant harm in the Basra area.

3. The Minister, in his written submissions, interprets ground 1 and the written submissions made in support of it as making two claims. The first is that the IAA failed to consider the applicant’s claims in relation to the time spent in a western country, and generalised violence; and the second is that the IAA failed to apply the correct test in relation to sectarian violence.[12] As to the first of these two claims, the Minister, in his written submission, submits the IAA considered the claims in relation to the time spent in a western country, and generalised violence.[13] As to the second of the claims, the Minister submits the IAA plainly applied the correct test.[14]

   [12] First respondent’s written outline of submissions, [11]

   [13] First respondent’s written outline of submissions, [12]

   [14] First respondent’s written outline of submissions, [13]

4. In my opinion, ground 1, when considered with the submissions made in support of it, may be taken as making four claims:

   a)The IAA did not consider the applicant’s claims based on his being a returnee from a Western country.

   b)There was before the IAA a claim based on generalised violence in Basra, but the IAA failed to consider that claim.

   c)The IAA assessed the applicant’s claim of fear of harm by incorrectly asking itself whether the applicant would face the risk of more serious crime such as kidnapping or other acts of violence.

   d)The IAA erroneously assessed the risk of future harm to the applicant if he were to return to Basra by reference to the relative risk of harm in Baghdad.

Failure to consider claim based on returnee status?

1. There is no question the IAA identified as a claim that the applicant would face harm because he left Iraq and had sought asylum in Australia. As I have already noted, the IAA found there was nothing in the country information it identified to suggest that returnees are perceived as wealthy and consequently targeted by criminals, and for that reason it was not satisfied the applicant faces a real chance of harm on that basis.

Failure to consider claim based on generalised violence?

1. In my opinion, there was not before the IAA any claim based on generalised violence. The applicant’s claim was that he faced the risk of being kidnapped or harmed because he would be perceived as wealthy because he had siblings who lived in Western countries. The IAA considered that claim, but, for the reasons I have already set out, it did not accept it.

2. Even if the applicant can be taken to have made a claim of fear of harm based on generalised violence, the IAA made dispositive findings about that. The IAA made those findings when considering whether the applicant would face harm because he is a Shia Muslim. The IAA considered country information and asked itself in terms whether the applicant would be at risk of real harm from generalised violence; and it concluded, on the basis of country information, that Shias in Shia dominated provinces of southern Iraq “are at low risk of generalised violence”.[15]

   [15] CB164, [15]

Incorrectly restrict consideration to serious harm based on kidnapping and other acts of violence?

1. It is true that, in not accepting the applicant’s claim that he faced the risk of being kidnapped or harmed because he would be perceived as wealthy because he had siblings who lived in Western countries, the IAA found that nothing in the material which the applicant’s representative had provided to the IAA indicated that the prevalence of crime in Iraq had risen to such a level such that there is a real chance the applicant would suffer kidnapping or other acts of violence. That finding, however, must be viewed in the context in which it was made, namely, the applicant’s claim that he feared kidnapping or some other act of harm because of his being perceived to be wealthy because he has siblings who live in a Western country. In that context, the only harm the applicant could reasonably have been interpreted by the IAA as claiming he feared was that which would flow from his being a target for extortion; and the threats associated with that extortion involved kidnapping or some other act of violence. The IAA, therefore, manifested no misunderstanding of the law it was required to apply, and therefore made no jurisdictional error, by not accepting this part of the applicant’s claim.

Assessment of harm by reference to relative harm?

1. Although the IAA referred to Basra having a casualty rate of 10% of that prevailing in Diyala province, I am not satisfied that it assessed the risk to the applicant if he were to return to Basra by reference or solely by reference to the greater risk of harm people experience in Diyala province. First, the IAA referred to the applicant’s personal profile, namely, the applicant and his family having lived in Basra since 2013, the applicant’s being a construction worker, and the absence of any matter, other than the applicant’s siblings having fled Iraq to seek asylum overseas. Second, the IAA referred to none of the applicant’s family having suffered any harm in Basra, both before and after the applicant left Iraq. Third, the IAA referred to the material provided by the applicant’s representative which contained country information specifically about “the crime situation in Basrah” (sic),[16] and concluded on the basis of that information it was not satisfied there was a real risk the applicant would be a victim of kidnapping or other acts of violence,[17] or that the applicant would otherwise face a real risk of harm from generalised violence.[18] These findings cannot reasonably be taken to have been made on the basis of the IAA’s assessment of the relevant risk of harm in Basra as compared to other regions in Iraq. On the contrary, I find the IAA made these findings on the basis of information that related to Basra, the applicant’s profile, and the applicant’s family.

   [16] CB150-154

   [17] CB164, [15]

   [18] CB164, [16]

Conclusion

1. For these reasons, ground 1 fails.

Ground 2

1. The second ground relates to what it identifies as “new information” as that expression is used in s.473DD of the Act. Before I set out the ground it will be useful to set out s.473DD, the “new information”, and what the IAA said about that information.

Section 473DD

1. Section 473DD of the Act provides as follows:

   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.

1. The expression “new information” is defined in s.473DC(1)  to mean “any document or information that . . . were not before the Minister when the Minister made the decision under section 65; and . . . the Authority considers may be relevant”.

The “new information”

1. The “new information” to which ground 2 relates is information contained in a document titled “SUBMISSIONS IN RELATION TO THE APPLICANT . . . IAA 17/01787” (Submission).[19] The Submission was prepared and forwarded to the IAA by the applicant’s representative, and is expressed to contain the representative’s comments in relation to “the delegate’s refusal reasons”. After referring to the delegate’s acceptance that the applicant’s cousin had been kidnapped and held for ransom, that a neighbour, being a doctor, was kidnapped and held for ransom, that the applicant’s house was broken into, and that the applicant has siblings living in western countries, the representative stated the applicant “fear[s] that he will be kidnapped because of all these indications”. After noting the applicant comes from Basra, the representative submits the applicant’s fears are not far-fetched or fanciful “because the country information tells us that Basra is a very dangerous place”.

   [19] CB150-154

2. After setting out a passage from the applicant’s statutory declaration, the representative then set out extracts from two sources. One is the “US OSAC Report for 2016”, and the other is the decision of the UK Upper Tribunal I BA (Returns to Baghdad) Iraq CG.[20] The representative submitted that although the UK Upper Tribunal “talk in specific about Bagdhad”, it refers to “the general situation in Iraq, also”, and that the representative believes that the “situation in Basra, especially in relation to “kidnapping” is comparable to that in Baghdad”. The representative made other submissions as well.

   [20] [2017] UKUT 00018 (IAC)

3. The IAA referred to the Submission, and treated it as containing three classes of information. The first was the representative’s submissions themselves which the IAA said “may be referred to as argument rather than new information”. The second is what the IAA described as the “Iraq 2016 Crime & Safety Report: Basrah” (sic) published by the United Stated Department of State on 10 March 2016. That is a reference to the “US OSAC Report for 2016” referred to in the Submissions. The IAA said the applicant referred to that report and quoted from it at his interview before the delegate, and, for that reason, it did not consider the report to constitute new information. Third, the IAA referred to the UK Upper Tribunal decision referred to in the Submission. The IAA regarded the information in the Submission extracted from the UK Upper Tribunal to be “new information”, and said as follows:[21]

   In considering however whether exceptional circumstances warrant consideration of the case, the applicant in that matter sought asylum on the basis that he worked for a foreign owned company in Baghdad, he was a Sunni Muslim and as he had spent time in the West he might be at heightened risk of kidnapping. The Tribunal identified the central issue as “whether a person with the appellant’s particular profile would be at serious risk at real risk of serious harm if he returned to Baghdad at this time”. As both the appellant’s profile and the city of return differ from that of the applicant in this matter, I am not satisfied that exceptional circumstances warrant consideration of the additional information. I have not therefore had regard to the Upper Tribunal decision.

   [21] CB161, [5]

Ground 2 and competing submissions

1. Ground 2 is as follows (errors in original)

   The Authority fell into jurisdictional error in failing to properly exercise its jurisdiction in respect of information submitted to the Authority (IAA at [4]-[5). The Authority’s applied test in respect of s 473DD; falling into error as to the construction of s 473DD; failing to ask correct question or asking incorrect questions and take all circumstances into account.

   Particulars

   2.1The Authority fell into error as it failed to take into account all matters constituting exceptional circumstances and it took into account to consider the information it classified as new information, (particularly 1AA at [5]).

   2.2The Authority had fallen into in application of section s 473DD was applicable in the circumstances and should have been engaged with all circumstances in complying with the section.

   2.3The Authority had fallen into in application of section 473DD in that it has not asked the correct questions was applicable in the circumstances and should have been engaged with all circumstances in complying with the section.

   2.4The Authority fell into error in failing to take into account all the subsections of s 473DD and considering it individually and cumulatively and thereby has misconstrued the Act.

   2.5The Authority has fallen into error in failing to deal with other relevant considerations.

   2.6The Authority had fallen into in application of section s 473DD was applicable in the circumstances and should have been engaged with all the circumstances in complying with the section.

2. In his written submissions,[22] the applicant relied on the following passage from the judgment of Gageler, Keane, and Nettle JJ in Plaintiff M174/2016 v Minister for Immigration and Border protection:[23]

   Quite what will amount to exceptional circumstances is inherently incapable of exhaustive statement.  The word “exceptional”, in such a context, is not a term of art but “an ordinary, familiar English adjective”:  “[t]o be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered”.

   Cumulatively upon the precondition set out in s 473DD(a) that the Authority must be satisfied that there are exceptional circumstances to justify considering new information, s 473DD(b) sets out a further precondition that must also be met before the Authority can consider new information that is given to it, or proposed to be given to it, by the referred applicant.  In respect of new information within that category, the Authority must be satisfied of one or other of the circumstances set out in s 473DD(b)(i) and (ii).

   [22] Applicant’s Outline Submissions, [24]

   [23] [2018] HCA 16 at [30] and [31] (footnote omitted)

3. The applicant submits the IAA “has not engaged with the consideration of the exceptional circumstances in a meaningful way”.[24] The applicant further submits the IAA adopted a very narrow understanding of “exceptional circumstances”.[25]

   [24] Applicant’s Outline Submissions, [26]

   [25] Applicant’s Outline Submissions, [27], [28], in the latter paragraph relying on Minister for Immigrationand Border Protectionv BBS16 [2017] FCFCA 176, at [102]

4. In his oral address, Mr Kumar submitted the IAA did not apply an active intellectual process to whether there were exceptional circumstances justifying the IAA’s considering the new information.

5. The Minister, in his written submissions, submits the IAA had regard to the cumulative requirements prescribed by s.473DD, it had regard to the content of the country information and the applicant’s circumstances, and did not apply an “inappropriately narrow understanding” of the phrase “exceptional circumstances”.[26]

   [26] First respondent’s written outline of submissions, [17]

6. The competing submissions raise two issues. The first is whether the IAA engaged in an active intellectual process when considering whether there were exceptional circumstances that would warrant the IAA giving consideration to the information it identified as new information; and the second is whether the IAA in any event gave an inappropriately narrow construction of the expression “exceptional circumstances”.

Did IAA actively engage in an active intellectual process?

1. There can be no doubt that the IAA considered whether information contained in the Submission contained “new information” and whether there were exceptional circumstances to warrant its considering the new information; and that it engaged in an active intellectual process in considering those two questions. As I have already noted, the IAA considered that the Submission contained three classes of information, one of which it characterised as submissions, and not “information”; the other as information that had already been provided to the delegate, and therefore not “new information”; and information – that part of the UK Upper Tribunal decision that was extracted in the Submissions (Upper Tribunal information) – which the IAA considered to be “new information”. It was reasonably open to the IAA to characterise the information contained in the Submissions into these three categories. The IAA then considered whether there were exceptional circumstances that warranted consideration of the Upper Tribunal information; and the IAA answered that question in the negative because it found the information to be irrelevant or not sufficiently relevant to assessing the applicant’s claims. This manifests an active intellectual engagement with the question the IAA considered to be relevant, namely, whether there were exceptional circumstances warranting its considering the Upper Tribunal information.

Inappropriately narrow construction of “exceptional circumstances”?

1. Apart from referring to the IAA’s reason for not accepting there were exceptional circumstances – the information related to a profile that was different from that of the applicant, and to a city that was different from that to which the applicant would return – the applicant does not identify the respects in which he submits the IAA took an inappropriately narrow construction of the expression “exceptional circumstances”. Whether or not the IAA took such a narrow construction is a matter that is to be determined by inference from the IAA’s reasoning.

2. As I have already noted, the IAA concluded there were no exceptional circumstances that warranted its considering the Upper Tribunal information because it did not consider that information to be relevant or sufficiently relevant because the information related to a person with a different profile from that of the applicant, and to a different city from that in which the applicant had lived. These findings were reasonably open to the IAA.

3. In these circumstances it cannot be said the IAA adopted a narrow construction of the expression “exceptional circumstances”. That is so because it is difficult to imagine how it could ever reasonably be said that exceptional circumstances exist in relation to information that is not relevant to the issues that are before the IAA. If anything, characterising new information as relevant would be a necessary, although not sufficient, condition before the IAA could rationally or reasonably consider whether there are exceptional circumstances that would warrant the IAA considering such information.

4. Although not raised by any party, it is at the very least arguable that, having concluded the Upper Tribunal information was not relevant, the IAA ought to have concluded that it was not “new information” within the meaning of s.473DC(1) of the Act. As I have already noted, under s.473DC(1) information will be “new information” if both the information was not before the Minister when the Minister made the decision under s.65 of the Act and the IAA considers that information “may be relevant”; and the IAA considered the Upper Tribunal information was not relevant. Assuming, however, the IAA ought to have concluded the information was not “new information” because it was not satisfied it was relevant, its failure to do would not have resulted in the IAA having made a jurisdictional error. That is so because, by not being satisfied there were exceptional circumstances to warrant its considering the Upper Tribunal information, the IAA had concluded it would not consider that information, which is the same result the IAA would have arrived at had it concluded the Upper Tribunal information was not “new information” because it was not satisfied it was relevant.

5. In any event, I am not satisfied the Tribunal applied an inappropriately narrow or otherwise erroneous construction of “exceptional circumstances”.

Conclusion

1. For these reasons, ground 2 also fails.

Ground based on s.473GB certificate

1. In his written submissions, the applicant states he intends to introduce  the following additional ground:[27]

   [27] Applicant’s Outline Submissions, [33]

   The Authority denied the Applicant procedural fairness in relying upon an invalid notice issued pursuant to s.473GB of the Act.

   Particulars

   A.The s 473GB notice refers to information that was not to be disclosed to the [Applicant].

   B.The [Applicant] was denied procedural fairness.

   C.The Authority committed jurisdictional error.

2. This ground is directed to a certificate dated 18 January 2017 that was purportedly issued under s.473GB of the Act (Certificate). The applicant submits the IAA did not disclose the Certificate and that, by not disclosing it to the applicant, the IAA denied the applicant procedural fairness.[28] The applicant relies on the judgment of Beach J in MZAFZ v Minister for Immigration & Border Protection.[29] The Minister, on the other hand, relying on Minister for Immigration and Border Protection v BBS16,[30] submits that the principles considered in MZAFZ do not apply to reviews conducted by the IAA under Part 7AA of the Act.

   [28] Applicant’s Outline Submissions, [35]

   [29] [2016] FCA 1081

   [30] [2017] FCAFC 176

3. Counsel for the applicant accepts that BBS16 decided that the principles considered in MZAFZ do not apply to reviews conducted by the IAA under Part 7AA of the Act. Counsel formally submits, however, that the Full Federal Court erred in so deciding. Given counsel’s concession, there would be no utility in granting the applicant leave to amend the application to include the proposed ground 3.

Disposition

1. I propose to order that leave not be granted to the applicant to amend the application by including a claim based on the IAA not having disclosed to the applicant the existence of the Certificate; and that the application otherwise be dismissed.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 29 June 2018