BOF18 v Minister for Immigration

FEDERAL CIRCUIT COURT OF AUSTRALIA

BOF18 v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 3103

Catchwords:
MIGRATION – Application for judicial review of decision of Immigration Assessment Authority – application to submit new information to IAA – application of section 473DD of the Migration Act 1958 – exceptional circumstances – legal unreasonableness – assessment of credibility of evidence – no jurisdictional error established – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss. 5AA, 5H, 5J, 35A, 36, 46A, 65, 473CB, 473CC,

473DA, 473DB, 473DC, 473DD, 473DE

Migration Regulations 1994 (Cth), Sch. 2

Cases cited:

Applicant WAEE v Minister for Immigration & Multicultural & Indigenous

Affairs (2004) 75 ALD 630

AQU17 v Minister for Immigration & Border Protection (2018) 162 ALD 442

BMB16 v Minister for Immigration & Border Protection [2017] FCAFC 179

BVZ16 v Minister for Immigration & Border Protection [2017] FCA 958

Chan v Minister for Immigration (1989) 169 CLR 379

Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437

Minister for Immigration & Border Protection v SZUXN [2016] FCA 516

Minister for Immigration & Border Protection v SZVFW [2018] HCA 30

Minister for Immigration and Citizenship v Li (2013) 297 ALR 225

Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611

Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR

259

Minister for Immigration v Guo (1997) 191 CLR 559

MZZJO v Minister for Immigration & Border Protection [2014] FCAFC 80

NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004]

FCAFC 10

Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018)

353 ALR 607

Plaintiff M64/2015 v Minister for Immigration & Border Protection (2015) 258

CLR 173

Re Minister for Immigration & Multicultural & Indigenous Affairs and Anor; ex

parte Applicants S134/202 (2003) 211 CLR 441

S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR

473

SZQAU v Minister for Immigration & Citizenship [2011] FCA 1243

Applicant:

BOF18

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

ADG 121 of 2018

Judgment of:

Judge Brown

Hearing date:

6 June 2019

Date of Last Submission:

6 June 2019

Delivered at:

Adelaide

Delivered on:

8 November 2019

REPRESENTATION

Counsel for the Applicant:

Mr Barnes

Solicitors for the Applicant:

Beena Rezaee Legal & Migration

Counsel for the Respondents:

Mr d'Assumpcao

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The first respondent’s name be changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
All outstanding applications be dismissed.
The applicant pay the first respondent’s costs filed in the sum of seven thousand, three hundred and twenty eight dollars ($7,328.00).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 121 of 2018

BOF18

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for judicial review of a decision of the Immigration Assessment Authority,[1] made on 1 March 2018. This decision confirmed an earlier decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, which was made on 28 April 2017, not to grant him a protection visa pursuant to the provisions of the Migration Act 1958 (Cth).[2]
[1] Hereinafter referred to as “the IAA”
[2] Hereinafter referred to as “the Act”
The central issues in the case centre on how the IAA approached new information, which the applicant did not provide to the ministerial delegate but did wish the IAA to consider.
The applicant is a citizen of Afghanistan, who arrived at Christmas Island, by boat, on 2 April 2013, without a visa. He is a Hazara by ethnicity and a Shia by religion. He claims to be at risk of suffering persecution, if returned to Afghanistan because he fears he will be targeted by the Taliban. He is now thirty seven years of age and an automotive spray painter by occupation.
The applicant has provided an account of his family being subjected to a significant level of upheaval on account of the civil war in Afghanistan, involving the Taliban, from 1992 onwards, which resulted in the family moving internally within Afghanistan, on several occasions, shifting from their original home in Kabul, until ultimately ending up in Mazar-e-Sharif. The applicant’s father is also a spray painter and the applicant learnt his trade from his father.
Between 1992 and 1996, the applicant worked for his father, in Mazar-e-Sharif. In 1996, the applicant was able to open his own business. In 1998, the Taliban took control of Mazar-e-Sharif. At this time, the applicant claims his father was targeted by the Taliban.
This led to the family fleeing to Pakistan, where they remained until 2003. The family then returned to Kabul where both the applicant and his father opened separate businesses as spray painters.
The applicant claims he was successful in his business and did work for prominent individuals within the Afghani government, which would have created some form of profile of him being a successful Hazara business person. It is his case that he leased his premises from a prominent Pashtun, known as “The Commandant”, who was also a Talib.
At the same time, the applicant claims his father, in his business, was engaged in spray painting buses for the government, which it used to transport troops. The constant change of colour of the buses’ paintwork being a tactic used to confuse Taliban ambushes. The applicant’s brother was also involved in the father’s business.
The applicant further claims that, in November of 2012, his father was kidnapped by the Taliban. He (the applicant) was alerted to this event by neighbours of his father, who also advised his brother not to come to work.
Thereafter the applicant claims that a few weeks later, the Taliban also came to the applicant’s workshop to seize him. He was not there at the time, being nearby at a coffee shop. His foreman came to advise him that some Pashtuns were looking for him. The applicant was alarmed by mention of Pashtuns and decided not to go to his workshop but rather return to his home and hide. The majority of members of the Taliban are Pashtuns.
In this context, the applicant and his brother decided to flee Afghanistan. The applicant claims to be entitled to the protection of Australia because he will be subject to persecution in Afghanistan on account of the following:
·He is a Hazara and a Shia;
·He will be imputed with political opinions relating to his family’s time in Mazar-e-Sharif and his father’s targeting by the Taliban;
·His familial relationship to his father and his brother, who performed work for the Afghani government, particularly its armed forces;
·He will be identified as a wealthy and successful spray painter;
·The lease of his premises from the Talib Pashtun man;
·His attempted abduction by the Taliban; and
·He will be a failed asylum seeker, who has resided in the west for a significant period of time.

Legal considerations relevant to the grant of protection visas

Pursuant to section 65 of the Act, the Minister is required to grant any visa arising under the Act, if satisfied that the conditions attaching to such visa have been satisfied by the applicant concerned.
As previously indicated, the applicant has applied for a protection visa. Section 35A of the Act creates two classes of protection visas known respectively as Safe Haven Enterprise Visas “SHEV” and Temporary Protection Visas “TPV”.
In respect of each such protection visa, the criteria required to be satisfied are set out in Schedule 2 to the Migration Regulations 1994. In general terms, any applicant is required to satisfy the primary criterion contained in section 36(2)(a) or (aa) of the Act.
Section 36(2)(a) requires an applicant to satisfy the Minister that he or she is a refugee and therefore owed protective obligations by Australia. The expression refugee is defined in section 5H and provides a person is a refugee if that person:
“in the case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country;”
The expression well-founded fear of persecution is defined by section 5J and requires the applicant concerned:
·to fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
·be subject to a real chance of being persecuted for one of these reasons, if returned from Australia; and
·the persecution in question would involve the applicant suffering serious harm.
These sections reflect the definition appearing in the Refugees Convention, to which Australia is a signatory and which provides that a refugee is a person who:
“…owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
The High Court has established that this definition has both subjective and objective elements. The question to be asked by the relevant decision maker being does the applicant subjectively fear persecution and is that fear objectively well-founded.
In assessing the objective aspects, the decision-maker concerned must determine what is likely to happen to the applicant concerned if he or she is returned to the country. Necessarily these matters are predictive in nature. They are often encapsulated under the rubric of the real chance test.
In this context, the High Court has said as follows:
“The objective element requires the decision-maker to decide what may happen if the applicant returns to the country of nationality. That is an inquiry which requires close consideration of the situation of the particular applicant …
Because the question requires prediction of what may happen, it is often instructive to examine what has happened to an applicant when living in the country of nationality. If an applicant has been persecuted for a Convention reason, there will be cases in which it will be possible, even easy, to conclude that there is a real chance of repetition of that persecution if the applicant returns to that country. Yet absence of past persecution does not deny that there is a real chance of future persecution.
Again, because the question requires prediction, a decision-maker will often find it useful to consider how persons like the applicant have been, or are being, treated in the applicant’s country of nationality. That is useful because it may assist in predicting what may happen if the applicant returns to the country of nationality. …”[3]
[3] S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473 at 478–479 [72]–[73]
In cases such as Chan v Minister for Immigration[4] and Minister for Immigration v Guo,[5] the High Court has indicated that a fear can be well-founded even if there is no certainty or even probability that it will be realised; or even though there is only a ten percent chance that persecution will occur. However, far-fetched possibilities of persecution must be excluded.
[4] Chan v Minister for Immigration (1989) 169 CLR 379
[5] Minister for Immigration v Guo (1997) 191 CLR 559
Pursuant to section 36(2)(aa), a person is entitled to a protection visa, if there are substantial grounds for believing that if he or she is removed from Australia and returned to his or her country of origin, there is a real risk that he or she will suffer significant harm.
This is known as the complementary protection criterion. It codifies Australia’s international treaty obligations not to subject a person to the risk of non-refoulement – that is the risk of suffering persecution if returned to a particular country.
In the current matter, the applicant claims to face a real chance of persecution, from the Taliban or related anti-government forces because of ethnicity, religion and political affiliations, which will be imputed to him on his return to Afghanistan.

The Jurisdiction of the IAA

Due to the manner of the applicant’s arrival in Australia, he is classified under the Act, as an unauthorised maritime arrival into Australia [see section 5AA]. Pursuant to section 46A this classification prevents any such person from being able to apply automatically for any form of visa, including a protection visa, unless the Minister authorises it, on the basis of being satisfied that it is in the public interest to do so.
In the relevant jargon, this process is known as lifting the bar. The applicant was interviewed, as an unauthorised maritime arrival, by departmental officers, in June of 2013. The bar to his application was lifted on 1 April 2016 and his SHEV application was made, with the assistance of a migration agent, on 18 June 2018.
A consequence of the Minister allowing any applicant to make a visa application, in this way, is that such an applicant becomes characterised as a fast track applicant and, as such, the manner in which his/her application is to be determined and any review process arising is prescribed by Part 7AA of the Act.
Part 7AA of the Act mandates a process of review in respect of all decisions made by ministerial delegates in respect of such fast track applicants. In broad terms, if the delegate declines to grant a protection visa under the Act, the decision in question must be referred to the IAA, for review, as soon as practicable after it has been made.
As previously indicated, the ministerial delegate declined to grant the applicant a SHEV on 28 April 2017. The applicant provided a statutory declaration in support of his claim.[6] He also took part in an interview with the delegate on 19 April 2017.
[6] See Case Book at 62–66
The delegate’s decision was referred to the IAA on 4 May 2017. Between the date of referral and the date of decision, the applicant provided several pieces of new information, which had not been before the delegate, which he wished the IAA to consider. This included the following:
·The applicant’s further statutory declaration of 18 May 2017, which indicated the applicant had located his workshop foreman, claimed to be present when the Pashtuns had come there, in Tajikistan;[7]
·A statutory declaration from the foreman setting out evidence regarding the incident;[8]
·Evidence regarding an attack on a Hazara village in the vicinity of Mazar-e-Sharif on 19 August 2017 and a further attack on a Shia mosque in the applicant’s familial suburb of Pu-e-Khusht;[9] and
·Further country information regarding Afghanistan, particularly a DFAT thematic report relevant to the situation of Hazaras in Afghanistan in 2017.
[7] Ibid at 200–203
[8] Ibid at 206–207
[9] Ibid at 214
On 10 January 2018, the IAA invited the applicant to comment on information available to it, which indicated that the situation for Hazaras was generally secure in Mazar-e-Sharif due to the efforts of the Afghani security forces. In this context, the applicant was asked to comment on whether he could safely relocate to this part of Afghanistan.
This issue is potentially relevant to considerations of complementary protection. Section 36(2B) of the Act provides that it is taken not to be a real risk a person will suffer significant harm in a particular country if satisfaction is reached in respect of the following considerations:
·it would be reasonable for the applicant in question to relocate to another area of the country concerned, where there was no real risk of he or she suffering significant harm; or
·the applicant could obtain protection from relevant state authorities to avoid suffering such significant harm; or
·the real risk was one faced by the whole population of the country concerned not the particular applicant personally.
In this context, the applicant provided evidence regarding the situation currently prevailing in Mazar-e-Sharif and why his personal circumstances would not warrant him being safe in that city, particularly because of the risk of the Taliban being able to track him down there.

Legal provisions relating to new information

Section 473CB sets out the material, which the Secretary of the Department[10] must provide to the IAA. It includes the reasons of the delegate; any material provided by the applicant concerned to the original decision-maker; and any other material considered to be relevant.
[10] Hereinafter referred to as “the Secretary”
Section 473CC provides as follows:
“(1)   The Immigration Assessment Authority must review a fast track reviewable decision referred to the Authority under section 473CA.
(2)     The Immigration Assessment Authority may:
(a)     affirm the fast track reviewable decision; or
(b)remit the decision for reconsideration in accordance with such directions or recommendations of the Authority as are permitted by regulation.”
The procedure of the IAA and how it is to conduct its fast track review function is delineated in section 473DA, particularly what application the rules of natural justice have to fast track matters, including any requirement to refer documents to an applicant for comment. The section reads as follows:
“Exhaustive statement of natural justice hearing rule
(1) This Division, together with sections 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority.
(2) To avoid doubt, nothing in this Part requires the Immigration Assessment Authority to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.”
Section 473DB indicates that a fast track review is to be conducted only in respect of the material referred to the IAA by the Secretary without accepting or requesting any new information or interviewing the applicant concerned. In the jargon of administrative review, the review arising under Part 7AA is to be “on the papers” alone.
In this context, the IAA’s authority to access additional review material, to that provided to it by the Secretary, is limited and delineated exhaustively in Subdivision C of Part 7AA.
Section 473DC grants the IAA a discretion to obtain new information not previously before the Minister at time of decision if it might be relevant. Section 473DC(3) provides the IAA with a further discretion to invite an applicant to provide further information either in writing or through the medium of an interview.
However, the IAA is under no obligation or duty to obtain such information regardless of whether it is requested to do so by the applicant whose case has been referred to it or any other person [see section 473DC(2)].
The exercise of the discretion provided by section 473DC is subject to the satisfaction of two cumulative but overlapping consideration,[11] provided by section 473DD. The IAA is prohibited from considering new information unless two overlapping considerations are satisfied namely:
·The IAA is satisfied that there are exceptional circumstances sufficient to justify it considering such material; and
·The applicant concerned satisfies the IAA the new information:
·either could not have been provided to the Minister at time of decision; or
·is credible personal information not previously known and had it been known, may have affected the consideration of the claims made.
[11] See BVZ16 v Minister for Immigration & Border Protection [2017] FCA 958 at [9] per White J

If the IAA is satisfied that such exceptional circumstances arise, it is required, pursuant to section 473DE(1), to give the information so obtained to any referred applicant whose fast track review is being considered by it, subject to two provisos:
·firstly, the information has, in fact, been considered by the IAA;
·secondly, it prospectively forms part of the reasoning to be potentially adopted by the IAA for affirming a delegate’s decision.
If these provisos are satisfied the IAA is required to either invite the relevant applicant to comment in writing or at interview on such new information. However, these provisions are subject to a rider contained in section 473DE(3)(a) which provides that the requirement to provide new information, to an applicant, does not apply, if the information concerned is “not specifically about the referred applicant and is just about a class of persons of which the referred applicant is a member”.
As a consequence of the Full Court decision in BMB16 v Minister for Immigration & Border Protection[12] it is clear that the function of the IAA is to evaluate, for itself, the review material provided under section 473CB together with any new information it obtains and then to either affirm the delegate’s decision or remit the decision for reconsideration, in accordance with such directions or recommendations as are permitted under the Regulations. Accordingly, it is open to the IAA to reach a different conclusion to the delegate in respect of matters arising in the review in question.
[12] BMB16 v Minister for Immigration & Border Protection [2017] FCAFC 179
It is also clear, from what was said by the High Court in Plaintiff M174/2016 v Minister for Immigration and Border Protection,[13] that the various powers conferred upon the IAA, including that contained in section 473DD, must be exercised within the bounds of legal reasonableness, in the sense explained in Minister for Immigration and Citizenship v Li.[14]
[13] Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 353 ALR 607 at [21]
[14] Minister for Immigration and Citizenship v Li (2013) 297 ALR 225
In Li,[15] the plurality of the High Court (Hayne, Kiefel & Bell JJ) determined that a decision which lacked “an evident and intelligible justification” was liable to be characterised as an unreasonable one and therefore one which did not involve the proper exercise of the jurisdiction conferred upon the relevant decision-maker. As such, decisions lacking such an intelligible justification are also liable to be vitiated on the basis of jurisdictional error.
[15] Li (supra) at [75]–[76]
Following on from Li, in Minister for Immigration & Border Protection v Singh, the Full Court identified two distinct areas in which a tribunal may fail to discharge the jurisdiction conferred upon it by acting in a manner which is legally unreasonable.
Firstly, such a tribunal discharges its reasoning functions in a way which is unreasonable in the sense that it is illogical or otherwise lacking in intelligibility. This refers to the process of reasoning, utilised by the relevant decision-maker concerned, in reaching a decision. It is focussed on process, including the application of any relevant statutory criteria to such a decision.
Secondly, the outcome of the proceedings is coloured by some species of caprice or arbitrariness, which renders the decision legally unreasonable, although the applicable jurisdictional questions have been addressed by the decision-maker in question. This second area is outcome focussed.[16]
[16] Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44]
Essentially, in conducting its supervisory jurisdiction over a delegated decision-maker, the court is required to look at the outcome of the exercise of the power delegated to ascertain whether it is one characterised by an extreme level of arbitrariness, which renders the decision no decision at all as it is outside the range of possible outcomes which are defensible in respect of both the facts and the law.
It is also clear, from relevant Federal Court authority, that the level of illogicality or unreasonableness necessary to found jurisdictional error must be “extreme” not merely a situation where the minds of potential decision makers (and indeed a court on judicial review) might differ as to the outcome of the issue in question.[17] There must be no doubt that the decision sought to be vitiated is, on its face, axiomatically unreasonable.
[17] See Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99
In Singh the Full Court indicated that the resolution of any controversy regarding legal unreasonableness would inevitably be fact dependent. However, supervision and the search for intelligible justification, although involving a degree of scrutiny of factual issues, could not involve the substitution of the reviewer’s own judgment for that of the decision-maker. [18]
[18] See Singh (supra) at [48]
In Minister for Immigration & Border Protection v SZVFW[19] Kiefel CJ said as follows of the considerations applicable to legal unreasonableness:
“…it serves to highlight the fact that the test for unreasonableness is necessarily stringent. And that is because the courts will not lightly interfere with the exercise of a statutory power involving an area of discretion. The question is where that area lies.”
[19] Minister for Immigration & Border Protection v SZVFW [2018] HCA 30 at [11]
Accordingly, the test of whether a decision is legally unreasonable is one which is to be applied strictly. In addition, it is one which is invariably driven by an analysis of the applicable facts and the identification of justification for the conclusions reached. Again in SZVFW Gageler J said as follows:
“…legal unreasonableness is invariably fact dependent and requires a careful evaluation of the evidence. That is, assessment of whether a decision was beyond power because it was legally unreasonable depends on the application of the relevant principles to the particular factual circumstances of the case, rather than by way of an analysis of factual similarities or differences between individual cases. Where reasons are provided, they will be a focal point for that assessment. It would be a rare case to find that the exercise of a discretionary power was unreasonable where the reasons demonstrated a justification for that exercise of power.”[20]
[20] Minister for Immigration & Border Protection v SZVFW (supra) at [84]
If the IAA fails to exercise any power conferred upon it reasonably it can render invalid its jurisdiction to conduct a review of any ministerial decision referred to it pursuant to section 473CC. Essentially legal reasonableness or an absence of legal unreasonableness is an essential element in the lawfulness of decision-making, including by the IAA and must also inform the processes of each such decision maker, including in respect of any decision to accept new information.
In Plaintiff M174, the High Court indicated that the expression new information should be read in a consistent fashion, when used in sections 473DC, 473DD and 473DE and was
“…limited to "information" (which may or may not be recorded in a document), in the ordinary sense of a communication of knowledge about some particular fact, subject or event, that meets the two conditions set out in s 473DC(1)(a) and (b). The first is that the information was not before the Minister or delegate at the time of making the decision to refuse to grant the protection visa. The second is that the Authority considers that the information may be relevant.”[21]
[21] See Plaintiff 174 (supra) at 608 [24] per Gageler, Keane and Nettle JJ
The plurality in Plaintiff M174 considered that the structure of section 473DD imposed restrictions on when the IAA could consider new information. In particular, the first precondition set out in 473DD(a) must always be met. Whatever was the source of the new information, the IAA needs always to be satisfied that there are exceptional circumstances to justify considering it.
In this context, the Court said as follows:
“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".”[22]
[22] Plaintiff M174 (supra) at 609 [30]
Thereafter the Court confirmed the alternative limbs contained in section 473DD(b)(i) and (ii) were cumulative on the existence of exceptional circumstances. Thus the IAA had to be satisfied either:
·The new information was not and could not have been provided to the delegate; or
·Is credible personal information which was not previously known and had it been known, may have affected the claim concerned.
It was up to the IAA to determine, for itself, whether it had reached a state of satisfaction, regarding whether the new information should or should not be accepted on the basis of the criteria contained in section 473DD. In determining whether it was or was not legally unreasonable for the IAA to reach the decision which it did, this Court in conducting its review function is obliged to read the entirety of the IAA’s reasons fairly and as whole.[23]
[23] See Plaintiff M64/2015 v Minister for Immigration & Border Protection (2015) 258 CLR 173 at [60]

The grounds of review

The applicant commenced the proceedings on 3 April 2018. He has amended the grounds of review on two subsequent occasions. There are currently two grounds of review, which can be summarised as follows:
·Having accepted that exceptional circumstances applied to the admission of new information relating to the attack on the mosque in Pol-e-Khusht, the IAA had not properly considered this information or had considered it in an illogical, irrational or unreasonable fashion, which had led to a failure to exercise the statutory jurisdiction conferred upon it; and
·The IAA had acted in a procedurally unfair way, resulting in jurisdictional error, in how it exercised its power conferred by section 473DD, in respect of the new information provided by the applicant by him and his former foreman in each of their respective statutory declarations of 18 May 2017.

Ground One

In a formal sense, this is ground three of the second amended application. The ground is expressed in the following terms:
“Having found that there was new information to which exceptional circumstances applied, the IAA failed to consider that information in its reasoning:
a)The IAA found that there was new information to which exceptional circumstances applied (at [34]).
b)The new information was that:
i)On 21 October 2017, the attack on the Sh-ia mosque was in his family's suburb of Pol-e-Khusht (CB 214)
ii)DFAT Thematic Report Hazaras in Afghanistan (CB 214)
c)Having made those findings the IAA failed to consider the new information in or about [93] of its reasons. It was illogical, irrational or legally unreasonable to fail to consider this new information when making a finding that ‘the subsequent year[s] have seen further attacks of this kind in 2016 and 2017...’.
d)Affirming the decision not to grant the applicant a protection visa without considering the new information to which exceptional circumstances were held by the IAA to apply was illogical, irrational or legally unreasonable.”
The ground relies on new information, which was provided to the IAA following the ministerial delegate’s decision. The new information was contained in a letter from the applicant’s advisor, the relevant parts of which read as follows:
“Most important for him is the proximity of the latest violence to his family, their inability to move anywhere else outside of Afghanistan without his support and the danger of a return by [the applicant] to Afghanistan and Kabul in particular.
On 19 August 2017, he wanted the IAA to be aware of the attack on the Hazara villiage Mirza Olang in the north of Afghanistan, near the city of Mazar-e-Sharif and on 21 October 2017 the attack on the Shi’ia mosque was in his family’s suburb of Pul-e-Khusht.
The DFAT Thematic Report Hazaras in Afghanistan 2017, has not included the events named above as they have occurred after its production. The more pessimistic evaluation in this 2017 report would therefore have to be further modified by the latest Shi’ia and Hazara attacks. The economic viability of Afghanistan decreases all the while. The ability of the Hazaras, the applicant included, to access security or to be able to have any sort of normal life in their own country similarly decreases.”[24]
[24] Case Book at 214
The IAA categorised this letter as containing new information, which attracted the application of section 473DD. The IAA further considered that it had been produced in order to highlight the applicant’s contention that the security situation, for Hazaras, in Afghanistan was worsening rather than improving.[25]
[25] See Case Book at 395 [35]
In this context, the IAA rejected the evidence regarding the attack near Mazar-e-Sharif as not being relevant on the basis that the IAA was not required to consider the reasonableness of an internal relocation as it was focussing on the situation for the applicant in Kabul.
On this basis, it did accept the information raised in respect of the attack on Pul-e-Khusht as it was specifically relevant to the situation pertaining to the applicant’s family, who lived proximate to it. It also accepted the up-date Thematic Report on the basis it took “into account relevant security developments in Afghanistan in the second half of 2016 and through 2017 attacks against the Shia Hazara population”.
In respect of the report, the IAA disclosed that it had before it an earlier version of the report, which had also been before the delegate. It noted the 2017 report was an update to this report. In this context, particularly in light of the submission that the security situation for Hazaras was worsening in Afghanistan generally and also because a specific submission had been made in respect of the applicant’s own familial situation, the IAA accepted that there were sufficiently exceptional circumstances to justify the admission of this new information.
The applicant’s complaint is that, having accepted the new information, the IAA has not put it to use in assessing his claim for protection, particularly in respect of the Pul-e-Khusht mosque attack, which it had earlier explicitly accepted as being relevant to the applicant’s case. Essentially the applicant contends that the IAA did not consider an essential element of his case.
To paraphrase the submissions of Mr Barnes, counsel for the applicant, there is nothing in the reasons of the IAA to indicate that it had regard to the November 2017 mosque attack in how it assessed the real chance of whether the applicant would suffer harm if returned to the area of Kabul from which his family originated and therefore it has not exercised the jurisdiction conferred upon it.
Essentially, Mr Barnes contends that the IAA did not consider the case put before it by his client and therefore did not exercise its jurisdiction to review the decision of the ministerial delegate, which included considering any new information.
In this context, I accept that the IAA was required to deal with the case put before it. I also accept that it is a jurisdictional error for a decision maker not to consider legislative criteria relating to protection, advanced by an applicant. As the High Court indicated in Applicants S134/202:
“… a decision maker cannot be said to be satisfied or not satisfied if effect is not given to those criteria because, for example, they have been misconstrued or overlooked.”[26]
[26] See Re Minister for Immigration & Multicultural & Indigenous Affairs and Anor; ex parte Applicants S134/202 (2003) 211 CLR 441 at [85]
The central question for the Court is whether a fair reading of the whole of the IAA’s reasons indicate that it did, in fact, misconstrue or overlook this aspect of the applicant’s case, leading to a failure of jurisdiction. In undertaking this assessment, I must bear in mind the oft quoted passage from the High Court in Minister for Immigration & Ethnic Affairs v Wu Shan Liang and avoid reading the IAA’s reasons with an eye keenly attuned to the perception of error at the expense of a fair reading of the reasons as a whole.[27]
[27] Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
In his submissions, Mr Barnes puts considerable weight on the portions of the IAA decision, which deal specifically with the question of whether the applicant would suffer a real chance of persecution, on the basis of being a Shia Hazara, if he returned to Kabul. In resolving this issue, the IAA said as follows:
“There have however been occasional mass casualty attacks perpetrated against Shia Muslim and/or Hazara gatherings by other groups in Kabul. In December 2011, there was a bomb attack upon Kabul's Abu Fazl Mosque during Shia Muslim Ashura commemorations perpetrated by the Pakistani militant group Lashkar-e-Jhangvi (LeJ). This killed more than 80 people and was one of three coordinated December 2011 Ashura attacks in Afghanistan, with smaller scale attacks occurring in Mazar-e-Sharif and Kandahar. Since 2015, several further mass casualty attacks have been staged against Shia Muslim and/or Hazara community targets, with Islamic State aligned groups either claiming responsibility or suspected of responsibility. The most significant of these occurred on 23 July 2016 when two explosions occurred in Kabul targeting a peaceful demonstration of Hazaras, killing at least 85 people and wounding over 400 others. In the aftermath of this attack credible sources assessed that Islamic State seemed to be capable of planning and executing occasional operations against not so-fortified targets, with the help of local recruits, that can cause mass casualties; and that Islamic State was likely to continue infrequent "one-off" attacks in urban areas, primarily in Jalalabad and Kabul, and that Shia Hazaras would be among the likely targets. The subsequent year have seen further attacks of this kind in 2016 and 2017, though on a smaller but still significant scale, in Kabul and also in Herat, and also in a district of Balkh Province.
While the foreseeable future may see occasional attacks of this kind, I am not persuaded that the applicant would face a real chance of harm as a consequence of such an attack in a city like Kabul where Hazaras Shias make up a large portion of the population of some four million inhabitants. Even allowing for broader insurgent attacks in Kabul and the manner which Kabul sees more civilian casualties as a consequence of the civil conflict than anywhere else in Afghanistan, the size of Kabul and the manner in which such attacks overwhelmingly target the areas of central Kabul where Afghan government and foreign personnel work and live, rather than the western neighbourhoods where Hazaras live and work, I am satisfied that there is not more than a remote chance of the applicant being harmed by insurgent groups on his return to Kabul.”[28]
[28] See Case Book at 406 [93]–[94]
Ultimately, the IAA concluded that there was no more than a remote chance the applicant would be harmed if he returned to Kabul. In light of this finding, Mr Barnes points to the self-evident fact that, in the IAA’s lengthy recitation regarding the security situation in Afghanistan, there is no reference whatsoever to the Pul-e-Khusht mosque attack or the 2017 Thematic report other than the oblique reference to further attacks of this kind in 2016 and 2017.
As such, Mr Barnes contends that the IAA did not conduct the necessary risk assessment in the light of the evidence provided by the applicant, including the new information accepted by the IAA itself and therefore there is a failure of jurisdiction.

In contrast, Mr d’Assumpcao, counsel for the first respondent contends that a careful reading of the reasons of the IAA, as a whole, does not indicate that the matters advanced by the applicant have been overlooked or were not subject to any level of consideration whatsoever.
To the contrary, he contends that the IAA made specific reference to the material in question, when it exercised its discretion to admit it, as new information, pursuant to section 473DD. This is so.
In addition, I accept that a fair reading of the relevant portion of the reasons also indicate that the IAA understood the purpose for which the material was being proffered from the applicant’s perspective, namely to establish a worsening of the security situation, for Hazaras, from 2016/2017 onwards.
As such, I do not consider that it can be said that the IAA did not consider one central aspect of the applicant’s case, namely that he did not believe he would be safe, in Kabul, because of his ethnicity and religion. In my view, from a reading of the reasons, as a whole, the IAA did conduct such an assessment.
In addition, Mr d’Assumpcao points to other aspects of the IAA’s reasons, which indicate that the IAA did properly conduct the required level of assessment of the real chance of the applicant suffering serious harm if returned to Kabul specifically and Afghanistan generally by reference to other country information at its disposal.
In particular, the IAA made the following findings about the security situation in Afghanistan:
“Information before me indicates that while the security situation throughout Afghanistan is fluid and complex, the government maintains effective, but not absolute control in major urban areas such as Kabul. While violent incidents involving insurgents still occur and there remains concern over the capacity of law enforcement and judicial systems, it has been assessed that security in the urban areas is typically better than in rural areas.
While members of local Taliban networks have, in recent years, been accused of abducting or otherwise attacking Shia Hazaras in insecure rural areas, credible sources do not suspect the Taliban of having perpetrated attacks of this kind against Shia Hazaras in major cities like Kabul, Herat and Mazar-e Sharif, in recent years. There are no recent reports before me of the Taliban carrying out mass casualty attacks against the Hazara and/or Shia population in Kabul, instead attacks which have been carried out by the Taliban in Kabul have been against government and security personnel, media personnel, and the international community.”[29]
[29] Ibid at 406 [91]–[92]
Mr d’Assumpcoa places weight on the IAA’s finding that the situation in Afghanistan is currently fluid and complex but the government maintained effective if not absolute control in major urban areas such as Kabul. As indicated above, the IAA also indicated an acceptance that there had been mass casualty events in 2017.
Mr d’Assumpcao characterises this as the IAA taking a global approach, which led to the completion of its jurisdictional task, which was to assess the level of the risk to the applicant, if he was returned to Afghanistan. It did so by undertaking a summary of country information, in a generic sense, which it was entitled to do. This did not necessitate the need to specifically refer to each and every incident of terrorist attack, in assessing the degree of risk to the applicant.
In NAHI v Minister for Immigration & Multicultural & Indigenous Affairs the Full Court of the Federal Court said as follows:
“It is clear from its reasons for decision that the Tribunal did rely on ‘country information’ in making its assessment of the future, and that the conclusion that it reached was open to the Tribunal on the basis of the material it used. Both the choice and the assessment of the weight of such material were matters for the Tribunal. The Court cannot substitute its own view of the material, even if it had a different view from that reached by the Tribunal.”[30]
[30] NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [13] per Gray, Tamberlin & Lander JJ
I accept that both the choice of what aspects of country information were to be persuasive and the weight to be given to that material were issues solely within the fact finding jurisdiction of the IAA.[31] Further, care must be taken by a reviewing court, such as this one, to too readily draw a conclusion that an issue has been overlooked by the primary decision maker.
[31] See SZQAU v Minister for Immigration & Citizenship {2011] FCA 1243 at [13] per Flick J
As the Full Court said in Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs:
“The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.”[32]
[32] Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 75 ALD 630 at 641 [47]
In its reasons, the IAA indicated that it accepted the applicant had provided the relevant new information in an attempt to persuade it that the security situation had worsened in 2016/2017. However, it ultimately concluded that, although there had been attacks in 2016 and 2017, these were on a smaller but still significant scale than previously.
It conceded that there was a probability of further occasional attacks in future, including in Kabul. However, given the size of Kabul and where the majority of attacks had occurred, it characterised the chance of the applicant being harmed by insurgent groups as remote.
In my view, the reasons of the IAA in respect of this issue must be regarded as extensive and comprehensive. The issue of the mosque attack has been raised in the reasons and its relevance to the applicant’s case acknowledged. I do not accept that because this attack was not again specifically mentioned in the evaluation section of the reasons, it was necessarily overlooked.
Apart from the location of the attack, the applicant provided scant detail in respect of it. In any event, the IAA accepted that there had been attacks in 2016/2017. It cannot thus be said to be unreasonable for the IAA to conclude, on the basis of the evidence available to it, that the 2016/2017 incidents had been of less significant scale than previously.
Thus, in my view, the issue of the mosque attack cannot be regarded as being one dispositive to the jurisdictional task of the IAA, which was to assess the degree of risk, to the applicant, in Kabul. The IAA provided detailed reasons as to why it considered that the chance of the applicant being harmed by insurgents, in the western neighbourhoods of Kabul was remote.
In these circumstances, I do not consider the applicant has established any jurisdictional error arising under this ground of review.

Ground Two

This ground is numbered seven in the second amended application and reads as follows:
“The decision of the Immigration Assessment Authority (IAA) dated 1 March 2018 (Decision) was affected by jurisdictional error in that the IAA failed properly to construe and apply s. 473DD of the Migration Act 1958 (Cth) to the new information submitted to it by the Applicant on the review of the decision of the Delegate rejecting his application for a Safe Haven Enterprise Visa.
a.On 25 and 26 May 2017 the Applicant provided to the IAA, through his migration act, further information, including new information obtained after the Delegate’s decision.
b.This new information was set out in the Applicant’s Second Statutory Declaration dated 18 May 2017 and a statement and translation thereof of “A”, the former foreman at the Applicant’s workshop in Afghanistan.
c.The information provided constituted “new information” under s. 473DC(1) of the Act.
d.The new information satisfied s. 473DD(b)(i) as new information which was not, and could not have been provided to the Minister before the Minister made the decision under review.
e.The IAA’s misconstrued the requirement of “exceptional circumstances” under s. 473DD(a) and adopted an inappropriately narrow view, by considering only those matters in s. 473DD(b) as to whether or not the requirement was met.
f.Further, or in the alternative, the IAA’s reasoning for rejecting the new information were irrational.”
This ground turns on the IAA’s rejection of the new information proffered by the applicant in the form of the statutory declarations provided by him and his foreman in respect of the visit of Taliban/Pashtuns to his workshop in January 2013 and the alleged abduction of his foreman. In support of the veracity of the evidence provided by the foreman, the applicant provided his Tajikistan refugee registration card.
In his statutory declaration, prepared for the delegate,[33] the applicant indicated that he and his father had moved back to Kabul in 2011 and had opened workshops “a few hundred metres away” from each other. Due to his work on government buses, the applicant’s father developed a profile with the Taliban, who abducted him from his workshop in November of 2012.
[33] See Case Book at 65
Thereafter, the applicant claimed that the Taliban came for him, at his workshop, a few weeks after his father had been taken. He was not there at the time and he was told by his young apprentice that there were some Pashtuns wanting to speak with him. In the applicant’s own words, Pashtuns meant trouble for me. On that basis, he went home and made plans to leave Afghanistan.
Against this background, the applicant claims the Pashtuns took his foreman, who has been identified as “A” in relevant documents. The applicant asserted that he had “no idea to this day what happened to this man”.
The delegate did not accept that this aspect of the applicant’s claim was genuine. The delegate doubted the applicant had any degree of profile with the Taliban. In this context, it was noted the applicant had remained at his home for approximately two months after the incident and since his departure no member of his family had suffered any harm.
It was also noted that the Taliban did have the capacity to locate people of interest to them and, in this context, the applicant had indicated that his business premises was owned by a member of the Taliban. The combination of these factors caused the delegate to doubt the credibility of the applicant’s account.
After the delegate’s decision, the applicant provided a further statutory declaration to the IAA.[34] In this document, the applicant attempted to clarify what he asserted were misunderstandings on the part of the delegate regarding his claim, which can be summarised as follows:
·He leased his workshop from a Talib. However, he himself largely dealt with another person, who was a Pashtun. He paid his rent to this person.
·The Talib known as “the Commandant” rarely came to his workshop.
·The applicant’s workshop was a significant distance away from his father’s workshop, being an hour and a half by car away.
·In these circumstances, he was not open to having been doubted in respect of his evidence on account of the fact that he had continued to attend his own workshop for around two months after his father’s abduction.
[34] Ibid at 200–203
Thereafter, the applicant deposed as follows:
“Rejecting my claim completely meant that the case officer did not accept that the Taliban came to my workshop, two months after my father was taken, and took away my foreman, whose fate and whereabouts at the time of interview were unknown. Because of the case officer's rejection of the facts of my claim, I made more attempt to see if anyone I knew in Afghanistan had heard anything from A, my foreman.
Amazingly my attempts to find A located him in Tajikistan. We were able to make contact and talk for the first time since the dğy he was taken away from my workshop in Kabul. He has written his story 9f what happened after he was taken and sent his ID from Tajikistan. This is new; information but was not available at the time of interview and is very important to consider as it goes to the credibility of my claims.
It has been a miracle that we have found each other and I ask you to read his statement about what has happened to him since 2013 when he was taken away from my workshop.
He was a prisoner of the Taliban in Maidan Wardak straight after his kidnapping. He had been drugged unconscious during the trip in the car out of Kabul and he had been badly injured during the time of his imprisonment He was not alone during his imprisonment and he managed to escape with two others when the Afghan forces and the Taliban were engaged in fighting. He finally managed to get to Tajikistan where he was able to get some medical treatment for his injuries. He is there to the present time. He has provided his phone number in Tajikistan to be contacted if corroboration is needed.
Talking to A, there seems no doubt that if I had been in the workshop, it would have been me who was taken away. The connection with my father and our work was too direct and A knows it was me they were after.”[35]
[35] See Case Book at 201–202 [8]–[12]
In his statutory declaration A indicated that he had been the applicant’s foreman and had been working at his workshop on 9 January 2013 when a number of Pashto speaking people had come inside asking for the applicant. He had then despatched a young apprentice to locate the applicant, who was in a nearby coffee shop. The applicant had fled the scene when he learnt, from the apprentice, of the arrival of the Pashtuns.
When the apprentice returned to the workshop, A deposed as follows:
“When the young apprentice came he said that the applicant escaped. They held me and I said I don't know. Then they forced me inside a vehicle and took me away with them and caused me lose consciousness inside the vehicle. When I regained consciousness I saw that I was in a dark place and there were a number of other people next to me who were also prisoners like me.”[36]
A then deposed that he was held and tortured for about three months until he was liberated by the Afghan army during a fire fight. He then escaped to Tajikistan but is currently in Kyrgyzstan.
[36] Ibid at 206
The IAA characterised this as new information to which section 473DD applied, as it had not been before the delegate. In this context, the IAA identified the potential application of the new information as being germane to the credibility of the applicant’s claims for protection.
The IAA identified two features in respect of the information: firstly, it related to events which had occurred in Afghanistan; and, secondly, those events had occurred prior to the applicant’s arrival in Australia. In this context, the IAA noted that the explanation provided by the applicant in respect of why the information had not been provided earlier was that, it was only with the rejection of his claim for asylum, he made attempts to ascertain the whereabouts of A, which fortuitously were successful.
In respect of this explanation, the IAA found as follows:
“I have considered the applicant's explanation however I consider that had such information been so fundamental to his case, or to the assessment of his credibility, as he now claims that it is he would have sought to ascertain and provide this information to the Department prior to the decision being made. He did not. Furthermore, I find the applicant's explanation that he "made more attempts" to locate A after the delegate's decision to be contrived given that he has not previously made mention that such attempts were under way or that such information could possibly have been provided.”[37]
[37] Ibid at 393 [23]
In addition, the IAA rejected A’s statement on the basis of its assessment of its credibility. Essentially, it found that elements of A’s evidence were inconsistent with aspects of the account provided by the applicant himself in the following aspects:
·A referred to his abductors being Pashto speakers, whilst the applicant asserted that it was members of the Taliban, who came to pick him up;
·A provided a specific date for when he was abducted – 9 January 2013; whilst the applicant indicated that the incident had occurred a few weeks after his father’s abduction, which in turn was inconsistent with what he had said at his protection visa interview, which was that it was around ten days more prior to his departure at the end of January 2013.
As a consequence of this reasoning, the IAA was not satisfied that exceptional circumstances existed to justify the further consideration of this new information.
Mr Barnes characterises the reasoning of the IAA, in reaching the conclusion that there were no exceptional circumstances sufficient to justify the admission of this new information as being irrational and unreasonable on the following grounds:
·Firstly, the applicant should not be prejudiced for gathering new information in an attempt to answer criticisms arising from the referred decision of the delegate;
·Secondly, there is no obvious inconsistency between A’s description of his abductors as being Pashtuns and the applicant’s apprehension those seeking him out were the Taliban, given the majority of members of the Taliban are Pashtuns. Mr Barnes categorises this reasoning as being flimsy; and
·Thirdly, it is unfair for the IAA to make distinctions in respect of various dates, which relate to events occurring a significant period beforehand. The SHEV application being in June 2016. In addition, few is an extremely imprecise quantification of weeks. Indeed, the impression, in respect of dates, may be indicative of veracity, rather than contrary.
In support of his contention, Mr Barnes relies on MZZJO v Minister for Immigration & Border Protection[38] in which the Full Court cautioned against undue reliance, by decision makers, on early entry interviews. It should be noted, I think, that the statutory declaration in question was prepared some years after the applicant’s irregular maritime arrival interview.
[38] MZZJO v Minister for Immigration & Border Protection [2014] FCAFC 80 at [56] per North, Bromberg and Mortimer JJ
Mr d’Assumpcao submits that the IAA did correctly discharge its jurisdiction arising under section 473DD. It is his position that the IAA did consider each of the components contained in the section and its conclusions were reasonably open to it.
I accept that the reasons of the IAA do disclose a proper level of appreciation of the effect of section 473DD. Before new information can be considered the IAA must reach a state of satisfaction that exceptional circumstances justify its consideration.
Whether or not there are such exceptional circumstances, in the ordinary sense of that word, is to be informed by the considerations contained in either limb of section 473DD(b) or a combination of them.
In the present matter, the IAA accepted that the issues raised by A, was not information that could have been placed before the delegate. It thereafter turned to consider factors relevant to the second limb, namely whether the information was credible personal information with the potential to be influential to the outcome of the applicant’s claim.

Accordingly, in my view, it was a central function of the IAA’s jurisdictional task, to assess the credibility of the new information. In my view, the IAA approached this task by weighing and assessing a variety of considerations.
Firstly, it noted that the information had not been sought earlier in circumstances in which the applicant was likely to have been aware of its potential importance. Secondly, the IAA was concerned that the information had only come to hand after the delegate had made a negative finding in respect of the applicant’s claim for asylum. This caused the IAA to consider that the material from A had been contrived.
Thirdly, the IAA made its own assessment of the credibility of the information, in the light of other evidentiary material available to it. In my view, it was incumbent upon the IAA to embark on this exercise given the restrictions imposed on it receiving new evidence provided by section 473DD. This was incumbent in its task of assessing whether exceptional circumstances existed sufficient to warrant the consideration of the new information.
Given the structure of the section, it was open to the IAA to consider the overall credibility of the new information in its consideration of whether exceptional circumstances existed. After all, it is difficult to see how exceptional circumstances would warrant the consideration of unbelievable evidence. The applicant’s chief complaint is that the manner in which the IAA determined this new information to lack credibility was legally unreasonable in the sense that its analysis of it lacked rationality and logic.
In AQU17 v Minister for Immigration & Border Protection[39] the Full Court described the matters to be considered under section 473DD in the following terms:
“…what will amount to exceptional circumstances is inherently incapable of exhaustive statement. Each case will be different to every other case and must be treated on its merits and the matters for the Authority to take into consideration must necessarily vary from case to case. It is a misconception that the factors in s 473DD(b)(i) and (ii) of the Act must, in all cases, be considered by the Authority in deciding whether “exceptional circumstances” exist as s 473DD(b) does not codify what constitutes “exceptional circumstances”. Rather, s 473DD(b) sets out the further preconditions that must also be met before the Authority can consider the new information cumulatively upon the precondition set out in s. 473DD(a)…in many cases consideration of the factors in ss 473DD(b)(i) and/or (ii) may assist the Authority in deciding whether or not it is satisfied that exceptional circumstances exist but whether those factors will have bearing upon that decision will depend on the particular case.” citations removed
[39] AQU17 v Minister for Immigration & Border Protection (2018) 162ALD 442 at 447
In this case, I am satisfied that the IAA’s assessment of the lack of credibility attaching to the new information was a consideration it was entitled to utilise in determining whether exceptional circumstances existed.
It is Mr d’Assumpcao’s submission that the various bases on which the IAA determined the new information lacked credibility were factual findings which were logically open to the IAA. Although it is conceivable that another decision maker, for example, may have accepted there was no real distinction between the descriptor Pashtun and Taliban; and considered the inconsistencies about dates not to be significant; that does not necessarily render the subject decision illogical.
Different decision makers may reach different conclusions about the same evidentiary issues as a result of placing differing levels of weight on the various factual matters concerned. Caution must be taken not to turn a process of judicial review into a review of the merits of the decision concerned.
I agree. In this context, the following comments of Crennan & Bell JJ in Minister for Immigration & Citizenship v SZMDS[40] are germane:
“What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.”
[40] Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at 649 [135]
In my view, the findings regarding the credibility of the new information and the circumstances surrounding its production were matters to which the IAA was entitled to have regard and make findings about in exercising its jurisdiction, arising under section 473DD, as to whether exceptional circumstances existed to justify the admission of new evidence.
I concede another decision maker may have reached a different conclusion regarding the exceptionality of A’s evidence but that does not render the IAA’s determination to reject it either illogical or irrational. In Minister for Immigration & Border Protection v SZUXN [41] Wigney J said as follows in respect of the issue of applying principles relating to legal unreasonableness to a primary decision maker’s finding of fact in respect of an issue of credit:
“Considerable caution must, however, be exercised before too readily acceding to a proposition that adverse findings as to credit expose jurisdictional error… That is because assertions of illogicality and irrationality can all too readily be used to conceal what is in truth simply an attack on the merits of the Tribunal’s findings and decision. In SZMDS, Crennan and Bell JJ made it plain that the deployment of illogicality or irrationality to achieve merits review should not be sanctioned.”
[41] Minister for Immigration & Border Protection v SZUXN [2016] FCA 516
In my view, the reasons of the IAA indicate that it understood its jurisdictional task, as stipulated by section 473DD and did not make any findings of fact which were not open to it on the evidence available to it. Essentially, it was open to the IAA to be satisfied that no exceptional circumstances existed because it did not accept the new information concerned was credible.
In these circumstances the second ground of review has not been made out and the application should therefore be dismissed.
The Minister seeks costs. I accept that costs, as calculated by reference to the applicable schedule of the Court’s rules, should follow the event. The appropriate awards of costs is an amount of $7,328.00.
For all these reasons, the orders of the Court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding one hundred and twenty-nine (129) paragraphs are a true copy of the reasons for judgment of Judge Brown.

Associate:

Date:8 November 2019

[2019] FCCA 3103

8 November 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Jurisdiction