BNW16 v Minister for Immigration

[2018] FCCA 3973

FEDERAL CIRCUIT COURT OF AUSTRALIA

BNW16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3973

Catchwords:
MIGRATION – Application for judicial review – Immigration Assessment Authority – consideration of ‘exceptional circumstances’ under s.473DD of the Migration Act 1958 – application allowed.

Legislation:

Migration Act 1958 (Cth), ss.473DD, 473DC

Cases cited:

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

Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110

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

Plaintiff M64-2015 v Minister for Immigration and Border Protection [2015]

HCA 50

Applicant: BNW16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: MLG 1336 of 2016

Judgment of: Judge Riethmuller

Hearing date: 14 December 2018

Date of Last Submission: 14 December 2018

Delivered at: Melbourne

Delivered on: 14 December 2018

REPRESENTATION

Counsel for the Applicant: Mr Aleksov

Solicitors for the Applicant: WLW Migration Lawyers

Counsel for the First Respondent: Mr Wood

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. A writ of certiorari issue directed to the Second Respondent, quashing the decision of the Second Respondent dated 9 June 2016.

2. A writ of mandamus issue directed to the Second Respondent, requiring the Second Respondent to determine according to law the application for review.

3. The First Respondent pay the Applicant’s costs fixed at $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1336 of 2016

BNW16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Delivered extempore)

1. This is an application for judicial review of a decision of the Immigration Assessment Authority (‘the IAA’) made on 9 June 2016, reviewing a decision of a delegate of the Minister refusing a protection visa on 29 April 2016.  The visa application had been made in 2015, after some difficulties around an invalid application that was initially made.

2. The applicant himself had arrived in Australia back in 2012, as an unaccompanied minor.  It appears that the applicant was a minor of around 15 years when he arrived in Australia, and that his father is dead.

3. The applicant’s claims are conveniently summarised at paragraph 16 of the IAA’s decision, as follows:

   The applicant’s father worked for the government and in mid-2011 “was attacked by the Taliban when he was in Ghazni. Sometime later the applicant’s father received a letter from the Taliban threatening him and advised him to stop working for the government.  Two months later, in late 2011 or early 2012, the applicant’s father was killed by the Taliban.  The Taliban left a note on his father’s body warning villagers not to touch his body”

   After the applicant’s father was killed, the applicant received a letter from the Taliban demanding that the applicant surrender to them.  Alternatively they demanded the money which his father earned while working for the government.  The applicant believed that the Taliban had asked for the applicant because they wanted him to fight with them. He feared he would be beheaded.

   …

   The applicant fears returning to Tarakai as the Taliban have a stronghold there. They often kidnap people and force them to fight with the Taliban.

   He also fears from the Taliban as his father worked for the government and was killed. The Taliban will force him to fight with them or kill him as a punishment for his father’s work.

   He fears harm as he has spent time in Australia. He may be accused of being an infidel or spy. He also fears harm because he is now westernised, drinks alcohol and does not practice his faith.

   He fears harm from Islamic State (IS).

4. The applicant lodged an application setting out four grounds, however pursued only the first two grounds in the proceedings before me.

Ground 1

1. Ground 1 is framed as follows:

   1. The IAA failed to afford procedural fairness to the applicant, in that it did not disclose to him the existence of a certificate under

   
   

   s 473GB of the Migration Act 1958 (Cth).

2. This ground concerned whether or not the applicant ought to have been provided with a copy of a certificate from the IAA. 

3. Ultimately, it seems clear that, before me, the applicant cannot succeed, as a result of the decision in Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176. I therefore formally refuse this ground, noting however that it was raised and argued, so that the applicant has open to him the possibilities of arguing it on appeal.

Ground 2

1. Under ground 2, the applicant claims that the IAA failed to comply with s.473DD of the Migration Act 1958 (Cth).

2. In this case, the applicant had provided to the IAA a statement relating to an alleged kidnapping of him as a child.  That statement appears in the Court Book (‘CB’) at pp.143 to 144.

3. The applicant sets out in that statement a description of an incident where he was kidnapped and tortured by way of cutting his fingers and fingernails, whilst he believed he was being videoed for the purpose of attempting to extract money from his father.  The statement had not been provided prior to the decision by the delegate.

4. The relevant provision of the legislation is s.473DD, which is in the following terms:

   Considering new information in exceptional circumstances

   For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

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

(b)  the referred applicant satisfies the Authority that, in relation to any newinformation 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 provision relies upon the definition of ‘new information’ contained in s.473DC which 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. In this case the IAA turned its mind to the statement by the applicant, and gave the following reasons for concluding that there were not exceptional circumstances to justify the IAA considering this new information.  The IAA’s reasons were as follows:

   9. For the purposes of s.473DC I consider the information contained in the statutory declaration to be 'new information.' While the applicant has provided reasons as to why he did not provide this information earlier, I am not satisfied this information could not have been provided to the delegate prior to the s.65 decision being made. I have taken into consideration that the applicant arrived in Australia as an unaccompanied minor, and that recounting past events can be distressing. However I note that the applicant had turned 18 years old prior to the TPV interview and was provided immigration assistance through the Department of Immigration and Border Protection's Primary Application Information Service (PAIS). During the TPV interview the applicant was notified of the importance of raising all his claims for protection and was explained the limitations of providing new information subsequent to the s.65 decision. He confirmed he understood these matters, and did in fact raise an additional claim for protection. At the end of the interview the applicant confirmed that he had raised all his claims for protection. The delegate also advised the applicant that any further information could be submitted to her and it would be taken into consideration on the basis it was received prior to her decision being made. The decision was made four months subsequent to the TPV interview which I consider to be sufficient time for the applicant to have provided any additional information. I note the applicant did provide the delegate additional information and documents one month after the interview. Having regard to all the circumstances, I am not satisfied there are exceptional circumstances to justify consideration of the new information.

3. The legislative provision is one that is difficult to follow on a brief reading. It requires careful consideration, and has required a large number of cases in the courts to unpack the nuances of meaning contained within it. It is clear, however, that subsections (a) and (b) of s.473DDmust both be satisfied in order for the IAA to consider any new information.

4. In this case, there is no question that the material would fall within the definition of ‘new information’ contained in s.473DC. The IAA, in this case, appears to have considered only subsection (a) as to whether or not there are exceptional circumstances to justify considering the new information, rather than having gone on to consider subsection (b).

5. Whilst it seems clear that it is information that could not fall within s.473DD(b)(i) (although, I note, at least some argument was raised by counsel against this proposition), it is information that quite arguably falls within subsection (b)(ii), in that it is information that was not previously known to the Minister or decision-makers, and arguably is credible personal information. The meaning of ‘credible’ in this context is not limited to personal information that is likely to, or is actually, accepted by the decision-maker, but rather material that is sufficiently credible that it should not be rejected as incredible, or material that could not found a possible acceptance by the decision-maker. In this sense, it seems as though the applicant had a strong case that the material in the statutory declaration, given the terms of it, was likely to come within the meaning of ‘credible’ personal information.

6. The IAA, when considering the matter, is said to have confined its considerations to whether or not there was an adequate explanation for the delay in providing the information, rather than considering the facts and circumstances more generally, which is necessarily required by the general test of exceptional circumstances in s.473DD(a). In this regard, the facts and circumstances that would be relevant under s.473DD(b) could also be, and in many cases will be, relevant in determining the more general question of exceptional circumstances before one goes on to consider the more specific limitations in subsection (b).

7. There have been a number of cases on this topic, which are difficult, because the issue it requires the Court to consider what is often relatively brief reasons on this issue in the written reasons of decision-makers in order to form a view as to whether or not the decision-maker has properly applied the provisions of the legislation.  Two cases in particular have been relied upon in argument before me.

8. In Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110, the Court considered a decision by the IAA where the relevant reasons related to two separate pieces of information, and were dealt with separately by the Court. The first was set out in [23] of the Full Court’s reasons, in the following terms:

   23. In his written submissions to the Authority on 4 May 2017 CQW17 raised, for the first time, the New Raid Information – that is, that his parents’ home had been raided and his parents and the rest of the family had been forced to flee Iraq, as set out at [9] above. The Authority dealt with this new information at paragraph six of its decision:

   The applicant also states that he has recently been informed by members of his family that there was a raid on his parents’ house and they have been forced to relocate to Iran. If this event post-dated the delegate’s decision then it clearly could not have been provided to the delegate. The applicant goes on to discuss why he could not return to Iran, however as he is an Iraqi national the central consideration is whether he is unable or unwilling to avail himself of the protection of Iraq, not of Iran. I am not satisfied that there are exceptional circumstances to justify the consideration of this information.

   Ground 3 and 4 of the notice of contention both concern this paragraph of the Authority’s decision.

9. The second (at [58]), is as follows:

   58. The Authority dealt with the New Religious Information at paragraph five of its decision, which relevantly states:

   In his email the applicant...raises new claim for protection, this being that he is a non- practising Muslim, he drinks (presumably alcohol), dances and dates girls. This has not been raised at any point during the applicant’s PV application process and is new information. The applicant has not provided any information as to why the information as not or could not have been provided to the Department of Immigration and Border Protection (the Department). I note that the applicant was represented before the Department. I am not satisfied that this information could not have been provided to the delegate before the decision was made or that it constitutes credible personal information which was not previously known and had it been known may have affected the consideration of the applicant’s claims.

10. A further decision, of AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111, considered reasons of the IAA in these terms:

    5. The Authority was not satisfied that there were exceptional circumstances to consider this new information and did not take it into account in its review. The Authority gave the following explanation:

    In his declaration the [appellant] stated that when he was detained by the Criminal Investigation Department (CID) in August 2011 the CID did not know who he was and he “refused to give them my true identity and details as I knew I was on the watch list as searched for LTTE fugitive”. The [appellant] did not advance this claim at the SHEV interview when asked about his 2011 detention and I find that this is new information. I have had regard to the [appellant’s] response to questions put to him at the interview about this matter. The delegate advised the [appellant] that she could not understand why the CID did not come looking for him when he did not report back to them as this was one of the conditions of his release. The [appellant’s] response to this question was that “the address they had was my father’s one so they went looking for me there”. The [appellant] did not advance that he “refused to give them my true identity” and that they did not know his real name. I consider that the [appellant] had the opportunity at the interview to advise the delegate of the claim that he did not give the CID his real name. Furthermore, the response the [appellant] gave at the interview (that they had his father’s address) contradicts his claim that the CID did not identify him during the period he was detained. I am not satisfied that there are exceptional circumstances to consider this new information.

11. What is apparent from the Full Court decisions is that the reasoning in the first of the two quoted examples from CQW17 was sufficient to result in error, and that the reasoning at [58] (as quoted above) did not result in error. The reasoning referred to in AQU17 was found not to have resulted in error.

12. The difference in nuance appears to come down to the question of whether or not the decision-maker had limited themselves simply to whether or not the information in question could have been provided earlier, or had gone on to consider circumstances more broadly, such as the credibility.

13. In AQU17, the reference to ‘contradictory’ information showed that the decision-maker had looked at the matter more broadly than the more limited question of whether or not the material could have been provided earlier.

14. Similarly, when one looks at the quotes from CQW17, the second of the two quotes ends with a statement that shows a level of consideration beyond whether or not information could have been provided earlier, even though it was set out in a very brief and quite formulistic way: that was missing from the earlier statement quoted at [23] of the decision.

15. I am also mindful, as counsel for the Minister points out, that the Court should not be quick to assume error, and bear in mind that this is often a question of inferences drawn from written decisions, in circumstances where, on many of these issues, specific reasons do not necessarily have to be articulated:  see for example the discussions in Plaintiff M64-2015 v Minister for Immigration and Border Protection [2015] HCA 50.

16. I turn then to consider the specific reasons given in this particular case. A number of factors are important to note. The first is that the opening sentence of the paragraph superficially appears to refer to the wrong section of the Act, referring to s.473DC rather than s.473DD. However, the definition of ‘new information’ is contained within s.473DD and, read carefully, it seems clear that the IAA member was focusing on this definition of ‘new information’ when embarking upon the consideration relevant to this subsection.

17. The next sentence provides, effectively, a summary of what the paragraph is about, and that is that the decision-maker considered that, whilst the applicant had provided reasons, the decision-maker was not satisfied that the information could not have been provided prior to the s.65 decision being made.  That is, that the consideration embarked upon by the IAA appears to be reasons to explain why the information could have been provided earlier, or why the IAA was not satisfied as to the reasons why the information could not have been provided earlier.  The reasoning sets out a number of opportunities in which the information might have been given, clearly supporting the introductory statement.

18. Towards the end of the paragraph, the decision-maker then returns to more general statements, pointing out that, having regard to all of the circumstances, the decision-maker was not satisfied that there are exceptional circumstances to justify the new information.

19. Nowhere is there mention of credibility.  Nowhere is there mention that this information would be unreliable because it appears to be a recent invention.  The unusual circumstances of the case, involving a child, and particularly traumatic events, as relied upon in the statement, would require at least some degree of consideration.  Nor is the potential significance of this information to the applicant’s case considered.

20. When standing back and looking at the reasons as a whole, I am ultimately persuaded by the applicant that the decision-maker has erred in the application of s.473DD(a) by unduly limiting themselves to the explanation for not providing the information earlier, rather than all of the circumstances that are necessary to consider whether or not exceptional circumstances apply in this case.

21. Counsel for the Minister also argued that, should I come to this view, that there would be reasons not to conclude there was error, or to exercise the discretion not to remit the matter.  This flows from the findings of the IAA (at [31]) where the IAA accepted that there was a real chance that the applicant may be kidnapped and tortured, and possibly killed, if he were to return to the area in which he grew up.  The IAA then went on to consider whether or not the applicant could relocate to Kabul, and ultimately concluded that the applicant could reasonably relocate to Kabul, and that he would not face a real risk of serious harm in Kabul.

1. On first impression, it appears that, as the applicant had won the point with respect to risk in his home town, and that this information went to that risk, that it was unlikely to make a difference to the outcome. 

2. However, as counsel for the applicant points out, the full extent and precise nature of that risk does bear upon the question of the extent to which the applicant may be safe in Kabul, and the extent to which he might be subject to the risk of the Taliban or others pursuing him in Kabul, or taking steps to try and secure either his participation in the Taliban or extracting other benefits from him.  In this regard, I also note that his mother, it seems, remains living in the area, with extended family.

3. In the circumstances of the case, I am persuaded that it is possible that this information could have made a difference to the overall outcome.

4. Therefore, ultimately, I am not persuaded to refuse to grant relief in this case.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date: 21 February 2019