BLR17 v Minister for Immigration

[2019] FCCA 1352

FEDERAL CIRCUIT COURT OF AUSTRALIA

BLR17 & ORS v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1352

Catchwords:
MIGRATION – Administrative Appeals Tribunal – Safe Haven Enterprise (class XE) (subclass 790) visa – application dismissed.

Legislation:

Migration Act 1958 (Cth).

Cases cited:

AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111;

162 ALD 442

BVZ16 v Minister for Immigration & Anor [2017] FCA 958; 254 FCR 221

CHF16 v Minister for Immigration and Border Protection [2017] FCAFC 192

CLS15 v Federal Circuit Court of Australia [2017] FCA 577; 72 AAR 502

CPE15 v Minister for Immigration and Border Protection [2017] FCA 591

Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176;

257 FCR 111; 158 ALD 198

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6;

185 CLR 259; 70 ALJR 568; 136 ALR 481; 41 ALD 1

Minister for Immigration v CQW17 [2018] FCAFC 110; 162 ALD 427

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1; 219 ALR 27

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

HCA 16; 92 ALJR 481

First Applicant: BLR17

Second Applicant: BMD17

Third Applicant: BME17

Fourth Applicant: BMF17

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION 

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: MLG 692 of 2017

Judgment of: Judge Mercuri

Hearing date: 17 October 2018

Date of Last Submission: 17 October 2018

Delivered at: Melbourne

Delivered on: 24 May 2019

REPRESENTATION

Counsel for the applicant: Mr M. Kenneally

Solicitors for the applicant: Victoria Legal Aid

Counsel for the respondents: Ms N. Campbell

Solicitors for the respondents: Clayton Utz

ORDERS

1. The applicant’s application filed 6 April 2017, as amended on

   
   

   19 September 2018 and further amended on 18 October 2018 be dismissed.

2. The applicant pay the first respondent’s costs in a sum to be fixed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 692 OF 2017

BLR17

First applicant

BMD17

Second applicant

BME17

Third applicant

BMF17

Fourth applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for judicial review of a decision of the Immigration Assessment Authority (“the IAA”) affirming the decision of the first respondent, the Minister for Immigration and Border Protection (“the Minister”) not to grant the applicant a Safe Haven Enterprise (Class XE) Subclass 790 visa (“SHEV visa”) under the Migration Act 1958 (Cth) (“the Act”).

2. It is common ground that for the purposes of this application, only the first applicant’s claims for protection are relevant. 

The applicant’s claims

1. The first applicant is an Iranian citizen[1] who arrived in Australia together with his wife, the second applicant and their children, the third and fourth applicants on 1 September 2012.[2]

   [1] Court book page 1.

   [2] Court book page 123.

2. The first applicant claims to fear harm if he returned to Iran on the basis of:

   a)his interest in Christianity in Iran;

   b)his conversion to Christianity in Australia; and

   c)his political opposition of the Iranian regime.

3. In relation to the latter basis of the first applicant’s fear of harm, the first applicant claimed that:

   a)as a taxi driver in Iran, he was expected to promote and celebrate the Iranian government, display a picture of the President of Iran in his taxi and transport passengers to religious events;

   b)he was against the President’s election policies and therefore refused to display the President’s picture, he was particularly against the regime because he believed that it was corrupt and had destroyed Iran, and that the leadership of the country were dictators who did not allow freedom of thought, speech and choice[3];

   c)his opinions would be seen as a betrayal of the regime as he was expected to be a supporter and advocate of that regime and its policies;

   d)the Basij had arrested him, detained him and interrogated him about his friendships with Christians and his Christian activities;

   e)the Basij had cancelled his taxi license; and

   f)

   the Heresat had interviewed his wife twice about her Christian activities and had asked her to come in for a third time on

   
   

   12 August 2012 which precipitated their decision to flee Iran.[4]

   [3] Court book pages 517 to 518 at paragraph [10].

   [4] Court book page 518.

4. The first applicant also claimed that upon his return he would be harmed because:

   a)the authorities were aware that he and his family had sought asylum in Australia following a data breach by the Department of Immigration and Border Protection in February 2014;

   b)he and his family no longer have passports; and

   c)he and his family would be detained and arrested on their arrival in Iran.

The IAA’s reasons

1. On 10 March 2017, the IAA affirmed the decision of the delegate of the Minister not to grant the applicant a SHEV visa.[5]

   [5] Court book page 515 to 530.

2. The IAA had regard to the material referred to it by the Secretary under section 473CB of the Act.

3. The IAA also considered whether it should have regard to submissions and further information provided by the applicant’s representative on
   27 October 2016. It concluded that whilst the submission was not ‘new information’, the character references provided, translated summons dated 29 April 2012 and evidence of cancellation of the first applicant’s taxi licence dated 30 April 2012 did constitute ‘new information’ for the purposes of Part 7AA of the Act.

4. After considering the nature of the ‘new information’ and the background to the applicant’s visa application process, the IAA concluded that there were no ‘exceptional circumstances’ which warranted considering this ‘new information’[6]. This is discussed further below.

   [6] Court book page 516 at paragraphs [6] to [7].

5. Similarly, the IAA considered further submissions provided on the first applicant’s behalf on 28 November 2016 and concluded that there were no ‘exceptional circumstances’ which warranted considering this ‘new information’[7].

   [7] Court book pages 516 to 517 at paragraph [8].

Ground one

1. The first ground of review is:

   The Immigration Assessment Authority (Authority) failed to exercise its jurisdiction and/or asked itself the wrong question by failing to consider if the applicant had a well-founded fear of serious harm for reason of his political opinion in the foreseeable future.

   Particulars

   (a)The first applicant claimed to fear persecution for reason of his political opposition to the Iranian regime.

   (b)The first applicant had expressed his political opinion in his work as a taxi driver by refusing to display President Ahmadinejad’s poster on his taxi and refusing to participate in transporting passengers to Imam Khomeini shrine (political actions).

   (c)The first applicant claimed that he was harmed as a result of these political actions.

   (d)The Authority found the first applicant had not been previously harmed for his political actions, and was not at risk of harm in the future due to his previous political actions.

   (e)The Authority did not, however, consider if the applicant would be at risk of serious harm for reason of his political opinions upon his return to Iran.[8]

   [8] Applicant’s further amended application filed 19 October 2018.

2. In support of this ground, the first applicant pointed to paragraph 8 of his statement of 7 August 2015, where he stated:

   …I was against [Ahmadinejad‘s] election and policies and refused to have his picture on my taxi.  I was particularly against his regime as I believe they were corrupt and have destroyed Iran beyond repair. They were dictators who did not allow freedom of thought, speech or choice in Iran in any respect.[9]

   [9] Court book at page 66.

3. In addition, paragraph 18[10] of the first applicant’s representative’s written submissions stated:

   The applicant instructs that his opinions in this respect are seen as a betrayal of the Islamic regime and his occupation, in which he is expected to be a supported and advocate for the government and their policies. [11]

   [10] This appears to be a typographical error – the excerpt referred to appears in page 66 of the court book at paragraph [19].

   [11] Court book page 66.

4. As stated above, the first applicant claimed that as a result of his political activity:

   a)he was arrested and interrogated by the Basij;

   b)the Basij cancelled his taxi licence; and

   c)the Heresat interviewed his wife.

5. Whilst the IAA found that he had refused to display Ahmadinejad’s poster on his taxi, it did not accept that Basij had interrogated him, cancelled his taxi licence or indeed that the Heresat had interrogated his wife. Consequently, the IAA found that the first applicant would not be imputed with an anti-regime profile for having not displayed Ahmadinejad’s picture. The IAA went on to say:

   I consider the applicants do not face a real chance of harm from Iranian authorities due to the applicant’s husband’s refusal to put Ahmadinejad posters on his taxi, from any claimed links to Christian passengers or purported Christian activity or perceived anti-Islamic behaviour.[12]

   [12] Court book page 521 at paragraph [24].

6. The first applicant submitted that by claiming to fear harm on the basis of his political activity and beliefs; in particular, the first applicant’s fear of harm due to his political opposition to the Iranian government, the IAA was obliged to, but did not consider whether the first applicant’s political views would put him at risk in the foreseeable future. 

7. The first applicant submitted that the IAA made no findings as to whether the applicant would be harmed if he returned to Iran, but rather on the harm the applicant experienced in the past as a result of his political activities and views. 

8. It was submitted on behalf of the applicants that this amounted to a failure by the IAA to exercise its jurisdiction to consider the applicant’s claim to fear harm based on his political opinion.

9. The applicant referred to the court to the Federal Court decision of CPE15 v Minister for Immigration and Border Protection
   [2017] FCA 591, in which Mortimer J considered how to assess the future risk of harm to a person. The court said:

   To make that assessment, there must be speculation about the future, and the period of time throughout which that speculative task must be carried out has been expressed to include so much of the future as is “foreseeable”.[13]

   [13] CPE15 v Minister for Immigration and Border Protection [2017] FCA 591 at [59].

10. It was argued on behalf of the applicant that in this case, the IAA did not undertake its statutory task because by focusing only on past conduct, it did not consider what would happen to the applicant if they were to return to Iran. In particular, the applicant submitted that this is evident from the fact that the IAA did not consider any contemporary country information regarding political opinions and the status of political freedom in Iran.[14]

    [14] Transcript page 5 at lines 45 to 46.

11. It is well settled that in considering the tribunal’s reasons, this court ought not construe them “minutely and finely with an eye keenly attuned to the perception of error” in reference to the comments of Brennan CJ, Toohey, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259; 70 ALJR 568; 136 ALR 481; 41 ALD 1 (“Wu Shan Liang”).[15]

    [15] Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259; 70 ALJR 568; 136 ALR 481; 41 ALD 1 at [272].

12. In Wu Shan Liang, the majority considered the role of a reviewing court in a judicial review application. In this context, the majority, in considering the reasoning of the court below, said:

    …The Court continued: “the reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.”

    These propositions are well settled.  They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.  In the present context, any court reviewing a decision upon refugee status, must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision (footnotes excluded).[16]

    [16] Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259; 70 ALJR 568; 136 ALR 481; 41 ALD 1 at [272].

13. In Wu Shan Liang, the Honourable Justice Kirby also helpfully set out a series of principles which should guide a judge conducting judicial review of an administrative decision maker’s reasons. In particular, he said:

    The reasons under challenge must be read as a whole. They must be considered fairly. It is erroneous to adopt a narrow approach, combing through the words of the decision-maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law.[17]

    [17] Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259; 70 ALJR 568; 136 ALR 481; 41 ALD 1 at [291].

14. In this instance, the IAA made the following relevant findings:

    The applicant husband claims that he was targeted and suffered reprisals for refusing to put posters of Mahmoud Ahmadinejad on his taxi.  … I accept that in 2009 the applicant husband may have refused to put Ahmadinejad posters on his taxi, however I do not accept as plausible that in such a heightened security environment, if authorities suspected the applicant husband of engaging in anti-government activity, they would wait two years to take action against him.

    The applicant claims that Iranian authorities believed he engaged in anti-government activities because he refused to put Ahmadinejad posters on his taxi and carried Christian passengers.  … I do not accept that the applicant husband was imputed with an anti-government profile as a result of refusing to put Ahmadinejad posters on his taxi or because he carried Christian passengers.  Nor am I satisfied that these actions combined would impute him with an anti-government profile.[18]

    [18] Court book page 519 at paragraphs [15] and [16].

15. After considering the applicant’s husband’s evidence throughout the protection visa process in relation to his claims, including inconsistencies in the applicant’s evidence and the circumstances in which the applicant’s wife was issued with her passport in 2012, the IAA concluded:

    For these reasons, I consider the applicant’s do not face a real chance of harm from Iranian authorities due to the applicant husband’s refusal to put Ahmadinejad pasters on his taxi, from any claimed links to Christian taxi passengers or purported Christian in Iran or perceived anti-Islamic behaviour.[19]

    [19] Court book page 541 at paragraph [24].

16. A fair reading of the IAA’s reasons, when read in context and in their entirety in the sense required by the reasoning in Wu Shan Liang reveals that the IAA concluded that the applicant did not face a real chance of harm based on a prospective assessment of whether the applicant would face such harm in the foreseeable future. 

17. I find that the IAA did give consideration to whether the first applicant faced a fear of harm based on his political opinion in the foreseeable future. It is not unreasonable for an assessment of foreseeable risk to be conducted against the background of what has occurred in the past.

18. For completeness, to the extent that the applicant seeks to draw a distinction between the applicant’s political conduct as distinct from his political views in this ground, this is, in my view, a distinction without a difference. It is clear that the IAA accepted that the first applicant refused to put up the poster in his taxi in 2009. That and any other claimed political action is a mere manifestation of an underlying political opinion which drives such action. To the extent that the IAA considered whether the first applicant faces a reasonable chance of harm in the future arising from his political actions, that in turn implicitly also covers his underlying political opinion. 

19. For these reasons, this ground is not made out.

Ground two

1. The second ground of review is:

   The Authority failed to consider the first applicant’s clearly articulated and/or squarely raised claim to fear serious or significant harm on the basis of his status as a failed asylum seeker upon being involuntarily returned to Iran.

   Particulars

   (a)The first applicant claimed that if returned to Iran he would be arrested and detained for having applied for asylum in Australia.

   (b)Implicit in the first applicant’s claim was that he would not return to Iran voluntarily, and would only return to Iran involuntarily.

   (c)The Authority did not make any finding as to whether the applicant’s would or could be involuntarily returned to Iran.

   (d)The Authority proceeded to consider the first applicant’s claim to fear harm as a failed asylum seeker on the basis that the applicants would return to Iran voluntarily.[20]

   [20] Applicant’s further amended application filed 19 October 2018.

2. This ground is based on a claim that the IAA failed to consider the first applicant’s claim that he feared harm on the basis that he would be involuntarily returned to Iran. 

3. It was further submitted that in considering this aspect of the first applicant’s claim, the IAA only considered country information which related to voluntary returnees.[21] 

   [21] Court book pages 523 to 525 at paragraphs [35] and [44].

4. The first applicant argued that the facts in this case were similar to those in CLS15 v Federal Circuit Court of Australia [2017] FCA 577; 72 AAR 502 (“CLS15”) in which the court found that the Administrative Appeals Tribunal (“the Tribunal”) had failed to deal with an integer of the appellant’s claim; namely, his claim to be a failed asylum seeker forcibly returned.[22]

   [22] CLS15 v Federal Circuit Court of Australia [2017] FCA 577; 72 AAR 502 at [57]-[60].

5. This court is bound by the reasoning in CLS15 unless, as submitted on behalf of the Minister, that case can be distinguished on its facts.

6. The question which arises therefore is whether the first applicant in this case has made a claim that he would fear harm if forced to return to Iran or if he was returned involuntarily.

7. In NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1; 219 ALR 27 (“NABE”) the Full Court of the Federal Court considered whether a failure to deal with an express or implied claim could amount to a jurisdictional error. The Full Court noted:

   Where the Tribunal fails to make a finding on “a substantial, clearly articulated argument relying upon established facts” that failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction … [23]

   [23] NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1; 219 ALR 27 at [55].

8. The Full Court went on to say:

   There is authority for the proposition that the Tribunal is not to limit its determination to the ‘case’ articulated by an applicant if evidence and material which it accepts raise a case not articulated… It has been suggested that the unarticulated claim must be raised ‘squarely’ on the material available to the Tribunal before it has a statutory duty to consider it … The use of the adverb “squarely” does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the tribunal, such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.[24]

   [24] NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1; 219 ALR 27 at [58].

   …

   It is plain enough, in the light of Dranichnikov, that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. … Every case must be considered according to its own circumstances. Error of fact, although amount to misconstruction of an applicant’s claim, may be of no consequence to the outcome. It may be “subsumed in findings of greater generality or because there is a factual premise upon which [the] contention rests which has been rejected …[25]

   [25] NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1; 219 ALR 27 at [63].

1. In this instance, the applicant’s submission in support of his application for a SHEV contained the following under the heading ‘claims’:

   1.We are instructed that (the applicant) fears persecution in Iran for the following reasons:

   a.His political opinion.

   b.His membership to the particular social groups:

   i.       Apostates in Iran

   ii.      Failed asylum seekers returning to Iran from a Western country.

   2.In addition to the above, the applicant fears that there is a real risk he will suffer significant harm in the event of his removal to Iran …[26]

   [26] Court book page 63.

2. At paragraph 14 of that same document, the first applicant’s representative went on to say:

   The applicant instructs that he fears, in the event of his removal to Iran, that he will be identified as a failed asylum seeker and may be persecuted by the Iranian government on this basis.  The applicant’s fears in this respect have been heightened as a result of the ‘data breach’ of February 2014, in which personal information about himself and his family was publicized online in an unauthorised breach of privacy…[27]

   [27] Court book page 63.

3. The first applicant’s representative dealt further with this issue under the heading ‘The applicant’s membership to the particular social group, “Failed asylum seekers returning to Iran from a Western country”’ in the following submission:

   … We further note the applicant’s current lack of passport may result in his asylum claims becoming known to the Iranian authorities in the event of his deportation from Australia.

   We contend that it is the process by which the applicant would be removed from Australia that may expose his asylum claims to the Iranian authorities.  …[28]

   [28] Court book pages 70 to 71 at paragraphs [35] to [38].

4. It is not in dispute that the first applicant claimed that if he returned to Iran, he would be detained and arrested upon re-entry because his family does not have passports.[29]

   [29] Court book page 148 at paragraph [30].

5. It is submitted on behalf of the first applicant that it is therefore implicit that the applicants would only return to Iran involuntarily. It is said that this is also consistent with the submissions made on the applicants’ behalf on 7 August 2015 in which their representative said:

   The applicant instructs that he fears, in the event of his removal to Iran that he will be identified as a failed asylum seeker and may be persecuted.[30]

   [30] Court book page 65 at paragraph [14].

6. Further references to the risks of torture arising from the applicant’s lack of a passport are also contained in the applicant’s SHEV application[31] and written submissions[32] filed 7 August 2015.

   [31] Court book page 148 at paragraph [30].

   [32] Court book page 73 at paragraph [47].

7. The IAA addressed the applicant’s claim to fear harm in the event of his return to Iran in its reasons by stating “… he will undoubtedly be detained and interrogated by the authorities as to his absence and lack of passport.”[33]

   [33] Court book page 523 at paragraph [31].

8. The IAA dealt with the data breach at paragraphs 32 and 33.[34] 

   [34] Court book page 523.

9. The IAA then dealt with the first applicant’s fear of harm “as an asylum seeker returning from a western country.”[35] In this context, the authorities referred to evidence that the Iranian authorities “do not prosecute voluntary returnees”[36] and also made reference to country information which stated that “a voluntary returnee is unlikely to attract much interest from authorities amongst the large regular international movements of Iranians.”[37]

   [35] Court book page 523 at paragraph [34] and [35].

   [36] Court book page 523 at paragraph [34].

   [37] Court book page 523 at paragraph [35].

10. At paragraph 35 of its decision record, the IAA went on to say:

    Further to this, border authorities in practice regularly accept Iranians with valid Iranian travel documents returned involuntarily to Iran.  DEFAT is not aware of any legislative or social barriers to returnees finding shelter or work in Iran, provided they have sufficient identification to enter Iran.  In light of this I am satisfied that if the applicants return to Iran, they will not face a real chance of persecution as a failed asylum seeker or for any other reason (emphasis added).[38]

    [38] Court book page 523 at paragraph [35].

11. In CLS15, the court concluded on the basis of the evidence before it:

    … a clearly articulated argument was advanced by the appellant in respect of his anticipated status as a failed asylum seeker for the purposes of s 36(2)(a).[39]

    [39] CLS15 v Federal Circuit Court of Australia [2017] FCA 577; 72 AAR 502 at [46].

12. The court further held:

    [56] … In circumstances where the reasons of a decision-maker may be fairly amenable to different meanings, one of which might demonstrate error, the principles stated in WAEE and Wu Shan Liang may of course require that the reasons be interpreted beneficially, that is, in favour of validity.  However, not all kinds of ambiguity are suitable for resolution by preferring one of two alternative meanings.  The ambiguity may be such as to evidence confused thinking on the part of the Tribunal or to fairly indicate that the Tribunal has asked itself the wrong question. In such cases, the ambiguity should not be resolved by attributing to the Tribunal implied findings that do not naturally arise from the text of the reasons for the decision, considered in light of all of the surrounding circumstances.  In some cases, the very nature of the ambiguity may prevent such an implication being made.  I consider this to be such a case.

    [57] The circumstances that the appellant had never made any claim founded on a premise that he would return to Iran other than by forcible removal from Australia is important.  No occasion arose for the Tribunal to consider the appellant’s protection visa application on the assumption that he would ever return voluntarily.[40]

    [40] CLS15 v Federal Circuit Court of Australia [2017] FCA 577; 72 AAR 502 at [56]-[57].

13. The court concluded in CLS15 that the tribunal had failed to consider an integer of the applicant’s claim; namely that he was a failed asylum seeker forcibly returned to Iran. That case is distinguishable from the present circumstances on the facts.

14. To the extent that the applicant claims to fear harm from removal to Iran, it is clear that this is a reference to fear of harm arising from the fact that:

    a)the applicant did not have a valid passport; and

    b)on return to Iran, the applicant would be identified as a failed asylum seeker.

15. When one considers the material filed on behalf of the first applicant in its entirety, the first applicant did not make an express claim to fear harm if returned to Iran forcibly, nor does such a claim arise in the sense discussed in NABE. 

16. Having reached this conclusion, this ground is not made out. 

Grounds three and four

1. As both grounds three and four relate to the operation of section 473DD of the Act, I will deal with them together. In essence, both grounds allege that the IAA applied an unduly narrow definition of ‘exceptional circumstances’ in section 473DD(a) of the Act by limiting it to the matters set out in section 473DD(b)(i) and (ii) of the Act.

2. The third ground of review is:

   The Authority constructively failed to exercise its jurisdiction by asking itself the wrong question in relation to its power to consider new information under s.473DD of the Act by adopting a definition of ‘exceptional circumstances” that was confined to whether the information could have been provided to the Minister’s Delegate.

   Particulars

   (a)The first applicant provided ‘new information’ on 27 October 2016 relating to his conversation (sic) to Christianity and his taxi driver license being cancelled.

   (b)The Authority was only able to consider the new information if it was satisfied the information met the criteria in s.473DD(b)(i) or s.473DD(b)(ii) of the Act, and that there were exceptional circumstances pursuant to the s 473DD(a) of the Act to justify considering the material.

   (c)Section 473DD(b)(i) of the Act provides that the applicant must have been unable to provide to the new information to the Minister.

   (d)The meaning of ‘exceptional circumstances’ is not confined to the matters in s 473DD(b)(i) or (ii).

   (e)The Authority found at paragraphs [6]-[7] I its reasons that it was not satisfied there were exceptional circumstances permitting consideration of the new information.

   (f)The Authority in considering if it was satisfied that exceptional circumstances justified consideration of the new information confined its inquiry to whether the information could have been provided to the Delegate of the Minister (Delegate).

   (g)Therefore, the Authority applied an unduly definition of exceptional circumstances, limited to the matters in s473DD(b)(i) (emphasis in original).[41]

   [41] Applicant’s further amended application filed 19 October 2018. 

3. The fourth ground of review is:

   The Authority constructively failed to exercise its jurisdiction by asking itself the wrong question in assessing whether exceptional circumstances existed pursuant to s 473DD(a) of the Act in relation to new information provided by the applicant by not considering potential exceptional circumstances clearly arising from the material including the content and relevance of the information and/or that the information may have satisfied s 473DD(b)(ii).

   Particulars

   (a)The first applicant provided “new information” on
   27 October 2016 relating to his conversation (sic) to Christianity and his taxi driver license being cancelled.

   (b)The Authority was only able to consider the new information if it was satisfied the information met the criteria in s 473DD(b)(i) or s.473DD(b)(ii) of the Act, and that there were exceptional circumstances pursuant to s 473DD(a) to justify considering the material.

   (c)Section 473DD(b)(ii) refers to information that credible personal information (sic) not previously known to the Minister, and, had it been known, may have affected the consideration of the referred applicant’s claims.

   (d)The Authority found at paragraph [6] – [7] in its reasons for decision that it was not satisfied there were exceptional circumstances permitting consideration of the new information.

   (e)The Authority in considering if it was satisfied that exceptional circumstances justified consideration of the new information confined its inquiry to whether the applicant satisfied s 473DD(b)(i)

   (f)The Authority did not consider whether the information satisfied s.473DD(b)(ii).

   (g)The Authority, as a result, in considering exceptional circumstances did not consider relevant matters.  Specifically, the nature of the information itself as personal information relevant to the applicant’s claims.[42]

   [42] The applicant’s further amended application filed 19 October 2018. 

4. It is common ground that as this application arises under Part 7AA of the Act, other than in limited circumstances, the IAA is only required to consider the ‘review material’ provided to it under section 473CB of the Act, without accepting or requesting new information or interviewing the applicant.[43] Section 473DC of the Act does permit the IAA to obtain any documents or information which were not before the Minister and which the IAA considers to be relevant, although it does not have a duty to do so.

   [43] Migration Act 1958 (Cth) s. 473DB.

5. Relevantly for these proceedings, section 473DD of the Act provides that in dealing with a fast track reviewable decision under Part 7AA of the Act, the IAA must not consider any new information unless:

   a)the IAA is satisfied that there are exceptional circumstances to justify considering the new information; and

   b)the referred applicant satisfies the IAA that in relation to any new information given or proposed to be given to the IAA, 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.

6. It is common ground that the term ‘exceptional circumstances’ is to be given a wide meaning. The applicant argued that in this case, the IAA gave that term an unduly restricted interpretation and focused on whether there was a reasonable excuse for the information not having been provided earlier. The applicant also argued that the IAA should have and did not consider the relevance of the new information to the applicant’s claims and whether it was credible personal information.

7. The Full Court of the Federal Court has recently reviewed cases in relation to section 473DD in AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111; 162 ALD 442 (“AQU17”) and Minister for Immigration v CQW17 [2018] FCAFC 110; 162 ALD 427 (“CQW17”). Both of these cases were heard and determined by the same full bench[44] and were delivered on the same day.

   [44] McKerracher, Murphy and Davies JJ.

8. In CQW17, the Full Court held:

   There can be no question that the requirements of s 473DD(a) and (b) are cumulative. That is plain as a matter of statutory interpretation. The Authority is therefore prohibited from considering new information unless it is satisfied of the matters in subparas (a) and (b) (emphasis in original).[45]

   [45] Minister for Immigration v CQW17 [2018] FCAFC 110; 162 ALD 427 at [36].

9. Notwithstanding the well-established principles in Wu Shan Liang, the Full Court went on to say:

   …it is nonetheless clear that the Authority did not consider whether the (relevant new information) was credible personal information which was not previously known and, had it been known, may have affected the consideration of CQW17’s claims under subpara (b)(ii).[46]

   [46] Minister for Immigration v CQW17 [2018] FCAFC 110; 162 ALD 427 at [37].

10. The Full Court in CQW17 considered the IAA’s decision to refuse to consider the new information and relevantly noted:

    What is missing from the Authority’s decision is any indication that it considered the fact that the raid to which CQW17 referred occurred in Iraq, or that his parents and family were forced to flee Iraq out of fear for their safety.[47]

    …

    … the Authority took an inappropriately narrow view of the breadth of the expression ‘exceptional circumstances’ and in doing so made a similar error to that identified in BVZ16 at [9] and[35]-[37] and the Full Court in BBS16 at [102] – [106].[48]

    [47] Minister for Immigration v CQW17 [2018] FCAFC 110; 162 ALD 427 at [45].

    [48] Minister for Immigration v CQW17 [2018] FCAFC 110; 162 ALD 427 at [47].

    …

    The expression ‘exceptional circumstances’ in subpara (a) has a broad meaning and it is not possible to state exhaustively what factors will be relevant or what the Authority must consider in a particular case: Plaintiff M174 at [30]. The Authority is obliged to consider all relevant circumstances, and as White J observed in VBZ16 the matters in (b)(i) and/or(ii) will usually form part of the consideration. In the circumstances of the present case, the Authority did not evaluate the significance of the relevant part of the (new information) or turn its mind to whether it was credible personal information capable of informing its satisfaction as to the existence of exceptional circumstances. On a fair reading of paragraph six, the Authority’s finding as to (b)(i) was decisive, and this bespeaks and overly narrow interpretation of the expression ‘exceptional circumstances’.[49]

    [49] Minister for Immigration v CQW17 [2018] FCAFC 110; 162 ALD 427 at [51].

11. Similarly, in AQU17 it was argued by the appellant that:

    …in focusing only on the appellant’s failure to take the opportunity to provide the information at the interview, in which the appellant gave a response that was inconsistent with the information with another response in that interview, the Authority limited itself to an unduly narrow interpretation of ‘exceptional circumstances’ in section 473DD(a).[50]

    [50] AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111; 162 ALD 442 at [6].

12. After referring to the relevant case law in relation to this section[51], the Full Court held in AQU17:

    In the present case, the question for the Authority was what, if anything, took the circumstances of the appellant’s case out of the usual or ordinary course to justify consideration of the new information. It was necessary for the authority to examine whether there was anything about the new information or the appellant’s circumstances which meant that there were exceptional circumstances justifying consideration of the new information.  …

    Contrary to the appellant’s submission, the Authority did not conclude that the s473DD(a) requirement was not met solely upon an evaluation as to whether the new information was information that could have been provided to the Minister’s delegate. Although the Authority did not make any finding in express terms in respect of the s473DD(b)(ii) requirement, the primary judge was correct to hold that the Authority, in substance, addressed as a factor bearing upon whether exceptional circumstances existed, whether the new information was credible information that, had it been known to the delegate, may have affected consideration of the appellant’s claims. It is not to the point that no express finding was made under s473DD(b)(ii), as the exceptional circumstance test did not require an express finding to be made. The Authority plainly based its conclusion that exceptional circumstances did not exist upon its lack of satisfaction that the new information was credible.[52]

    [51] BVZ16 v Minister for Immigration & Anor [2017] FCA 958; 254 FCR 221; Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; 257 FCR 111; 158 ALD 198; CHF16 v Minister for Immigration and Border Protection [2017] FCAFC 192; and Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 92 ALJR 481.

    [52] AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111; 162 ALD 442 at [15]-[16].

13. In the present case, the IAA dealt with the new information at paragraphs 6 and 7 of its written reasons.[53] In considering the documents submitted on the applicant’s behalf on 27 October 2016 (as distinct from the submissions themselves to which the IAA did have regard), the IAA noted:

    a)the new information pre-dated the delegate’s decision and it was unclear why it had not been provided earlier;

    b)the documents were provided by a representative who did not appear to be a registered migration agent;

    c)the applicant had been assisted by legal representation at the time that he submitted his initial application for a SHEV supported by a detailed 41 page submission;

    d)the applicant had the benefit of two protection visa interviews which occurred over two days in September 2015 and lasted for over 5 hours in total;

    e)the new information related to issues discussed in the PV interviews; and

    f)the applicant had ample time following the PV interviews to provide the new information before the delegate made their decision some 12 months later, but did not do so.[54]

    [53] Court book page 516.

    [54] Court book page 516 at paragraphs [6] and [7].

14. The IAA then stated that it was not satisfied that there were exceptional circumstances which warranted the IAA considering the new information. 

15. Importantly, in considering the IAA’s decision in relation to the new information provided on 27 October 2016, it is appropriate to also have regard to how the IAA dealt with the further correspondence received about the applicant having been baptised on 27 November 2016. This information was provided to the IAA on 28 November 2016 to which it did have regard. The IAA said:

    I am satisfied that this information could not have been provided to the delegate prior to the PV decision.  As part of the delegates’ decision including a finding that the applicant husband had not converted to Christianity as he had not been baptised, I accept that exceptional circumstances exist to justify considering this new information.[55]

    [55] Court book page 516 at paragraph [8].

1. It is implicit in the IAA’s findings in relation to the November 2016 material that the IAA considered that information to be credible personal information which might have had a bearing on the outcome of the applicant’s application. This evidences that the IAA was aware of the types of factors which might go towards establishing whether exceptional circumstances did exist.

2. I conclude that when the IAA’s reasons are read fairly and in their entirety, there is no evidence that the IAA applied an unnecessarily restrictive interpretation of ‘exceptional circumstances’. Nor do I find that in this case, the IAA determined whether ‘exceptional circumstances’ existed by reference only to whether or not the applicant could have provided the material to the delegate at an earlier stage in the process.

3. It is evident from both the factors outlined in paragraph 67, when read in the context of the IAA’s reasons relating to all of the new information provided, that the IAA had regard to all of the relevant circumstances in coming to its view that exceptional circumstances did not exist in this case. For example, the IAA had regard to the fact that the applicant had the benefit of legal advice from a very early stage in the process as well as a lengthy PV hearing over a two day period which ensured that all of the relevant information was before the decision maker.

4. It is also noteworthy that in this case, as in AQU17, the applicant does not point to any other factor that the IAA ought to have had regard to but which it did not in considering whether ‘exceptional circumstances’ existed.

5. I find that the conclusion reached by the IAA was reasonably open to it.

6. For these reasons, grounds three and four are not made out.

Conclusion

1. As none of the applicant’s grounds have been made out, the application should be dismissed with costs.

I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Judge Mercuri.

Date: 24 May 2019