Bon17 v Minister for Immigration
[2020] FCCA 2058
•28 July 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BON17 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2058 |
| Catchwords: MIGRATION – Protection visa – whether IAA misconstrued power to consider new information – was failure to consider new information unreasonable – was failure to ‘get’ new information unreasonable – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.473DB(2), 473DC, 473DD, 473DD(a) & (b)(i) & (ii), 476(1), 473DE, 473EA and Sub-div.C of Div.3 of Pt.7AA |
| Cases cited: BYM16 v Minister for Immigration & Border Protection [2017] FCCA 2445 Minister for Immigration & Border Protection v BBS16 [2017] FCAFC 176 |
| Applicant: | BON17 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | ADG 304 of 2019 |
| Judgment of: | Judge Heffernan |
| Hearing date: | 6 July 2020 |
| Date of Last Submission: | 6 July 2020 |
| Delivered at: | Adelaide |
| Delivered on: | 28 July 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms Costello SC |
| Solicitors for the Applicant: | Beena Rezaee Legal & Migration |
| Counsel for the Respondents: | Mr Chan |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The applicant has leave to amend the originating Application.
The Application is dismissed.
The applicant do pay the costs of the first respondent in the amount of SEVEN THOUSAND, FOUR HUNDRED AND SIXTY SEVEN DOLLARS ($7,467.00).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 304 of 2019
| BON17 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review, brought pursuant to s 476(1) of the Migration Act 1958 (Cth) (‘the Act’), of a decision of the Immigration Assessment Authority (‘the IAA’) dated 29 July 2019. That decision affirmed an earlier decision of a delegate of the first respondent refusing to grant the applicant a Safe Haven Enterprise visa (‘the visa’).
The originating Application was filed in August 2019. The applicant was given leave to file an Amended Application by 13 February 2020. On 19 June 2020, the applicant filed an amended originating Application.
The first respondent objected to the applicant being given leave to pursue the Amended Application on the basis that it was filed well outside the timeframe within which leave had been granted. That objection was pressed strongly in its written Outline of Submissions. The first respondent was right to protest at the lateness of the proposed Amended Outline of Submissions. There was no formal application before the Court seeking leave to amend out of time. The applicant has had the same solicitor acting since this matter was before the IAA. No explanation has been given for the failure to file an Amended Application within the time provided for by orders to which he consented. The remarks of Smith J in BYM16 v Minister for Immigrationand Border Protection[1] are apposite to this matter:
“There appears to be an attitude amongst legal practitioners who act for applicants in migration proceedings that neither the rules of Court nor Court orders, even those made by consent, apply to them. Perhaps that attitude has been encouraged by years of judicial lassitude, combined with the cost-consciousness of practitioners appearing for the Minister, or their adherence to the perceived breadth of the obligations of the model litigant. Whatever be the cause of this attitude, it must change.
The power of the Court to grant an amendment is to be exercised for the purpose of enabling the just, efficient and economical resolution of the proceedings. No doubt, the merits of any grounds sought to be raised by an amendment are ordinarily relevant to the exercise of that power. However, in circumstances where an opportunity to amend has already been given, but eschewed, and there is no explanation for a very late and prejudicial application for amendment, the merits are not necessarily decisive”.[2]
[1] [2017] FCCA 2445.
[2] Ibid, [6]-[7].
In any event, I was satisfied that it was appropriate to allow the applicant to be heard on the proposed Amended Application. The first respondent did not seek an adjournment. It quite properly conceded that it would not incur prejudice if the amendment were to be granted. It provided the Court with detailed Written Submissions in good time for the final hearing. The proposed ground is at least arguable. This matter relates to an application for a protection visa and is of considerable importance to the applicant. All of those matters point in favour of granting leave to amend.
I grant leave for the applicant to rely on the Amended Application. An order will be made to that effect.
The Amended Application abandoned the three grounds of application originally pleaded and raises a fourth new ground as follows:
“In relation to the Three Components of new information particularised below, the IAA erred by:
a.misconstruing s 473DD in considering its purported application to the Three Components;
b.forming its state of satisfaction as to s473DD in a legally unreasonable way in deciding not to consider one or more of the Three Components; or
c.acting unreasonably by not getting new information under s 473DC from the applicant about the Three Components.
Particulars
The Three Components were:
i.There was an attack in Jaghori on 6 November 2018 where the Applicant’s wife and five children were living.
ii.The applicant’s two sons went missing on 11 November and were presumed dead.
iii.The applicant’s family fled to Quetta in Pakistan after the November 2018 violence.”
Background
The applicant indicated in his written Outline of Submissions that he adopted the summary of facts and documents set out in the first respondent’s Written Submissions. For that reason, it is convenient to set that summary out below verbatim:[3]
[3] The reference to ‘SHEV’ is the Safe Haven Enterprise Visa.
“3The applicant, a citizen of Afghanistan, arrived on Christmas Island as an unauthorised maritime arrival on 13 November 2012: Court Book (CB) 96. On 2 September 2015, the department advised the applicant that it had lifted the bar pursuant to s 46A of the Act: CB 21-27.
4On 16 October 2015, the applicant lodged an application for the SHEV advancing the following claims (CB 29-77):
(a)He was a Hazara Shia Muslim who previously opposed a Taliban official, (name redacted).
(b)(name redacted) sought the applicant’s land but the applicant repeatedly refused to give up his land. In 2001, the applicant was summoned to the Taliban office and beaten.
(c) The applicant and his family relocated to Pakistan, and then to Iran.
(d)The applicant’s parents travelled to Pakistan for medical treatment. Upon return to Afghanistan, they were killed by the Taliban.
(e)The applicant feared harm on the bases that he was a Hazara Shia who previously opposed the Taliban and (name redacted).
5The applicant attended an interview with the delegate on 11 December 2015: CB 90-92. On 29 August 2016, the delegate refused to grant the applicant the SHEV: CB 96-133. On 1 September 2016, the matter was referred to the Authority: CB 135-137. On 14 October 2016, the Authority invited the applicant to comment on information: CB 142-145. The applicant provided a statement in response on 21 October 2016: CB 146-148. On 2 December 2016, the Authority again invited the applicant to comment on information: CB 150-153. On 23 December 2016, the applicant provided a submission and two expert reports in response: CB 158-174. On 7 February 2017, the Authority affirmed the delegate’s decision: CB 175-197.
6On 31 May 2019, the Federal Circuit Court remitted the matter back to the Authority: CB 198.1 The applicant provided the Authority with a submission (the 2019 submission) and new information on 17 (CB 203-227) and 18 July 2019 (CB 228-232) and on 29 July 2019, the Authority affirmed the delegate’s decision (CB 233-259).
The Authority’s decision
7The Authority had regard to the material given by the Secretary under s 473CB of the Act (CB 237, [3]), and the arguments advanced by the applicant in his submissions: CB 237-238, [5]-[6]. The Authority also had regard to the following new information:
7.1Country information provided by the applicant in 2017: CB 237, [4];
7.2The applicant’s responses in October and December 2016 to the Authority’s invitation to comment, including the submission and expert reports provided: CB 237-238, [5];
7.3Country information referenced in the 2019 submission: CB 240, [14]; and
7.4Updated country information on Afghanistan obtained by the Authority: CB 240, [14].
8However, the Authority declined to consider the following new information:
8.1Information in the applicant’s 2019 submission and statutory declaration that his family had relocated to Pakistan and that two of his sons were missing, on the basis that the Authority had serious doubts of the veracity of these claims because they lacked detail and were contradictory to other claims made: CB 239, [9]; and
8.2A medical report of the applicant’s purported mental health issues and other information in the 2019 submission on his mental health, on the basis that the evidence was inconsistent and vague: CB 239, [10]-[12].
9The Authority found that the material covered by a s 473GB certificate was irrelevant to the applicant’s protection claims and excluded the material from its consideration: CB 240, [15].
Factual findings
10The Authority accepted the applicant’s identity as claimed, and that he was a Shia Muslim of Hazara ethnicity: CB 242, [17]. The Authority found that his receiving country was Afghanistan: CB 242, [19].
11The Authority did not accept the applicant’s narrative with respect to the Taliban, (name redacted) and the purported land dispute on the bases that the narrative was illogical, inconsistent, not mentioned in the applicant’s first two interviews and required prompting from the delegate at the SHEV interview: CB 242-244, [20]-[29]. The Authority found that he was not, and would not now, be of any interest to the Taliban or (name redacted). The Authority found that he had departed Afghanistan for Iran for employment: CB 244, [29].
12The Authority accepted that the applicant’s parents were travelling so that his mother could receive medical treatment, and that they died on their travels: CB 244, [30]. However, in light of its findings that he was not in any conflict with (name redacted) or the Taliban and his own acknowledgement that it was only speculative that (name redacted) was involved in the death of his parents, the Authority found that the applicant invented the claim that (name redacted) was involved with his parents’ deaths: CB 244, [31]. The Authority did not accept that the death of his parents contributed to his profile in Afghanistan in any way.
13The Authority identified that the remaining claims to be determined were with respect to the applicant’s status as an Hazara Shia and his inability to travel or live outside of Jaghori safely: CB 245, [34].
14Based on the applicant’s concession at the SHEV interview that Jaghori would be safe, the Authority found that if returned, he would return to the family home in Jaghori: CB 245, [35].
15The Authority accepted that the applicant would be identified as an Hazara and that the country information indicated that Hazaras faced discrimination and marginalisation in Afghanistan: CB 247, [41]. Nevertheless, as the applicant’s claims did not advance any specific discrimination faced by him or his family in the past beyond a general assertion of “difficulties”, the Authority found that any discrimination the applicant would face did not amount to serious harm: CB 247, [42]. Further, as he had the support of family and experience resettling in Iran and Australia, the Authority found that he would have the skills and resilience to resettle in Jaghori: CB 247-248, [43].
16The Authority accepted that he would continue to practise his Shia faith in Afghanistan: CB 248, [45]. With respect to his assertion that the Islamic State in Khorasan Province (ISKP) was active in Jaghori, the Authority found that there was no country information or evidence to corroborate that claim: CB 248, [45].
17With respect to the reports authored by an academic from the Australian National University (ANU), the Authority found that the reports were based on historical information, not based on the applicant’s circumstances and were not entirely objective: CB 249, [48]. The Authority also recorded that other articles co-authored by the same academic used inflammatory language, referred to only selective sources and inferred that no Hazara is or ever could be safe, which was contradicted by other sources: CB 249, [49].
18Based on country information, the Authority was not satisfied that the applicant would face a real chance of harm due to a perception that he was pro-government: CB 250, [53].
19With respect to his claims that he would need to travel outside Jaghori and would face difficulties if he did so, the Authority was not satisfied that there was a real chance that he would not be able to secure work, or access basic services, in Jaghori. Based on country information and his own evidence, the Authority found that he would not be denied a capacity to subsist in Jaghori: CB 250-251, [55].
20With respect to his claim that he would need to travel outside Jaghori to attend university, based on his age and the lack of any indication from him or his family that anyone was to attend university, the Authority found that neither the applicant nor his family would need to travel outside Jaghori to attend tertiary education: CB 251, [57].
21The Authority accepted that if returned to Afghanistan, the applicant would first be returned to Kabul: CB 251, [58]. Based on country information, the Authority found that there was not a real chance that he would face harm on the roads on the way to Jaghori: CB 252, [61]. The Authority concluded that there was not a real chance that the applicant would face serious harm as an Hazara Shia in Jaghori: CB 252, [63].
22The Authority considered whether the applicant would face harm as a failed asylum seeker, even though such a claim was not made: CB 252, [64]. Based on country information and his history of having departed Afghanistan previously, the Authority found that he would not face a real chance of any harm as the only people who knew of the applicant’s links to the West were his family members, and he had not indicated that he would tell anyone of his Western exposure, or that his behaviour would identify him with the West: CB 252-254, [65]-[71]. The Authority did not accept that he had any intention to change his behaviour in Afghanistan: CB 254-254, [71]. The Authority also did not accept that he was ever, or would now be, of any interest to anti-government elements in Afghanistan: CB 254, [72].
23 The Authority concluded that the applicant did not face a real chance of harm because of his Hazara ethnicity, his time in Australia or his status as a failed asylum seeker: CB 254, [73]. Accordingly, he did not meet the definition of refugee in s 5H and did not meet s 36(2)(a): CB 254, [74].
24Relying on its anterior findings, the Authority found that there were not substantial grounds for believing that as a necessary and foreseeable consequence of being returned, the applicant would face a real risk of significant harm for any reason: CB 254-255, [75]-[78]. Accordingly, he did not meet s 36(2)(aa): CB 255, [79].”
Legislative framework
The procedures providing for the IAA to ‘get’ and consider new information when conducting a fast-track review are set out in Subdivision C of Division 3 of Part 7AA of the Act.
Relevantly for these proceedings the power to ‘get’ new information is established by s 473DC which provides:
“Getting new information
(1)Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information ( new information ) that:
(a)were not before the Minister when the Minister made the decision under section 65; and
(b)the Authority considers may be relevant.
(2)The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(3)Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a)in writing; or
(b)at an interview, whether conducted in person, by telephone or in any other way.”
Before new information may be considered by the IAA, the test in s 473DD must be satisfied. The cumulative requirements are as follows:
“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 new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i)was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii)is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.”
The strictly limited nature of a fast-track hearing and the attenuated form of natural justice provided for in Part 7AA has resulted in a significant amount of judicial discussion in relation to the above sections. As a result, some broad and uncontentious observations can be made. The term ‘exceptional circumstances’ has a broad meaning consistent with circumstances that are unusual or out of the ordinary and for that reason it is necessary to consider all relevant circumstances when determining whether there are ‘exceptional circumstances’.[4] Circumstances need not be unique, unprecedented or very rare in order to be exceptional but they cannot be of a kind regularly or normally encountered.[5] ‘Exceptional circumstances’ may arise from a single factor or a combination of factors.[6] The requirements in s 473DD(a) and (b) are cumulative. The factors in s 473DD(b)(i) and (ii) need not both be considered in all cases when determining whether ‘exceptional circumstances’ exist however a consideration of the factors in both s 473DD(b)(i) and (ii) might assist in assessing whether ‘exceptional circumstances’ do exist.[7] For the purposes of assessing s 473DD(b)(ii), ‘personal information’ which was not previously known, includes information not previously known by either the applicant or the Minister.[8] Beyond general observations of that kind, it is not possible to be prescriptive about what will or will not amount to ‘exceptional circumstances’ because in every matter any fact or circumstance or combination of them pointed to in order to establish exceptionality will need to be assessed in light of the context of the matter as a whole.
Submissions
[4] Minister for Immigration & Border Protection v BBS16 [2017] FCAFC 176.
[5] Plaintiff M174/2016 v Minister for Immigration & Border Protection (2018) 264 CLR 217 at [30].
[6] AQU17 v Minister for Immigration & Border Protection (2018) 162 ALD 442 [14].
[7] BVZ16 v Minister for Immigration & Border Protection (2017) 254 FCR 221.
[8] Op cit, Plaintiff M174/2016 at [34], [78] & [100].
Applicant’s submissions
In the submission of the applicant, the crucial passage which illustrates that the IAA fell into jurisdictional error comes at paragraph 9 of the Decision Record. The IAA reasoned as follows:
“Both the 2019 submission and his Statutory Declaration assert that the applicant’s family no longer reside in his village in Jaghori district, and due to a recent outbreak of violence in the District, fled to Pakistan and are currently residing in Quetta. This claim was not before the delegate. It is new information. This issue is raised in very general terms in the submission without any specific details being provided. No information is provided when the applicant’s family departed their home, or what specific factors led to their departure, or how they travelled, or why they went to Pakistan, or where specifically they are located now, or what their intentions for the future are. I note that since his arrival in Australia, the applicant in this case has consistently asserted that he is the father of five children. In context of the claimed move by his family to Quetta, the 2019 Submission indicates that the applicant’s wife and his five children moved to Pakistan. However, as I have noted the applicant’s Statutory Declaration had previously indicated that two of the applicant’s sons went missing in November 2018, have not been seen since that time, and are presumed deceased. The Submission also reiterated these claims about his missing sons. These assertions are clearly at odds with each other, and would seem to indicate that the applicant has not been entirely forthcoming. While on its face these events are all said to have occurred around November 2018, well after the date of the s.65 decision, I have serious doubts about the veracity of these claims and given the paucity of any useful detail around much of the claims, the unexplained contradictions in his evidence about his family, I am not satisfied that there are exceptional circumstances to justify the consideration of the new information about is family.”
The applicant identified thirteen defects in this passage and I have set them out verbatim from his written Outline of Submissions:
“12.The IAA’s reasoning about whether to consider the Three Components of new information suffers from a number of defects.
(a)The IAA failed to consider in relation to exceptional circumstances the lag in time since the IAA’s decision in February 2017 and the IAA’s fresh decision in July 2019, which delay was as a result of the applicant’s successful judicial review case.
(b)The IAA failed to consider in relation to exceptional circumstances the fact that the new information included a very significant and tragic component: the presumed deaths of two of his five children.
(c)The IAA failed to consider in evaluating the new information and finding it too lacking in detail to justify its consideration that in fact the applicant had only a small window in which to provide updated information to the IAA. The IAA’s letter to the applicant dated 3 July 2019 CB 202 stated “On 31 May 2019 a court remitted your case back to us for reconsideration We will now proceed to reconsider your case. … act quickly in your dealings with us, as a decision may be made at any time”. The applicant then quickly provided the statutory declaration, submissions and country information even without having any guidance as to what the IAA was particularly interested to hear more about.
(d) The IAA’s reasoning about the paucity of “any useful detail around much of the claims” was unreasonable given that the applicant had many issues to address in page limited submissions that had to be submitted urgently because a decision may be made by the IAA at any time.
(e)The IAA ignored detailed submissions about the attacks in Ghazni Province, Jaghori and Malistan (CB 206 at [4]) which corroborated the first of the Three Components.
(f)The IAA found there was “no information” about what specific factors led to the family’s travel to Pakistan, but the submissions explained that there was a major attack on Jaghori on 6 November 2018 where the Applicant’s wife and five children were living (CB 206).
(g)The IAA gave no real reason to reject the first of the Three Components of the new information (attack on wife and five children in Jaghori). The IAA stated arbitrarily that it had serious doubts about the veracity of these claims without explaining why component one was not believed.
(h)The IAA found that the applicant’s case was inconsistent because the submission said his wife and five children had fled to Pakistan but his statutory declaration said two of his sons had gone missing presumed dead. In fact, the applicant’s evidence was consistent and logical. The statutory declaration set out the three components chronologically: 1) attack, 2) sons missing presumed dead 3) family have now fled to Pakistan. At [3] of the statutory declaration the applicant said he is very sad about his sons and worried about his wife and other children. There is simply no inconsistency in the applicant’s statutory declaration. The IAA was on a quest to disbelieve him.
(i)The IAA says the submission said his wife and five children had fled to Quetta whereas his statutory declaration “had previously indicated” that his two sons went missing in November 2019. In fact, the statutory declaration was subsequent to the submission as it was dated 18 July 2019, whereas the submission was dated 15 July 2019.
(j)The email to the IAA from the applicant’s lawyer had no inconsistency (CB204), stating:
“The submissions refer to a number of recent attacks on Hazara Shias like Mr Safderi. These incidents postdate the delegate’s decision and are personal, credible information as it refers to persons who were known to Mr Safderi such as the missing of his two sons and the fleeing of his family to Quetta, Pakistan.”
(k)The IAA’s reasoning that the assertions indicated the applicant had not been entirely forthcoming was not reasoning that any reasonable decision maker would engage in: the statutory declaration was logical and consistent, the only reasonable conclusion was that the applicant’s representative misspoke when submitting that his wife and five children had fled to Quetta whereas obviously his wife had fled with three children as two were missing presumed dead.
(l)The IAA said nothing about its power in s473DC to get new information, instead complaining about a lack of specific details when the IAA could have asked the applicant to provide further information.
(m)The IAA did not consider in relation to the Three Components of information whether it was credible personal information or information that could not have been provided before the delegate’s decision, reasoning only about exceptional circumstances by evaluating in a wrong and defective way the credibility of the new information.”
Further, the applicant submitted that it was unreasonable in the relevant sense for the IAA to fail to consider exercising its discretion under s 473DC. It was submitted, and I accept, that it is well-established that particular circumstances may arise during the course of a review which require the IAA to consider exercising this power.[9] In this case, it was submitted that it was not within the IAA’s power to reach a conclusion that there were no ‘exceptional circumstances’ to receive the new information because the information provided by the applicant was not detailed enough to enable a reasonable assessment to be made of it without the IAA using the power it had under s 473DC to get further new information which might clarify the new information it rejected.
[9] Minister for Immigration & Border Protection v CRY16 (2017) 253 FCR 475; Minister for Immigration & Border Protection v DZU16 (2018) 253 FCR 526.
Counsel for the applicant submitted that it was clear from the decision record that the IAA did not apply a concept of ‘exceptional circumstances’ that any reasonable speaker of English would agree with. That is because the three components of new information proffered by the applicant were each of them “awful things” that had happened to the applicant’s family and which bore relevantly on important claims, particularly with respect to the risk of generalised violence should the applicant be required to return to his country of origin. The IAA appeared to have ignored that the events had taken place during the period of time in between its first decision and the matter being remitted for reconsideration. It seems that the only measure against which the IAA considered whether there were exceptional circumstances was its assessment of the credibility of the applicant’s statutory declaration in light of his lawyer’s submissions. This was inappropriate because the IAA is only required to consider the threshold question about whether to consider the new information and not at the evaluative stage of whether to accept the claims and make a finding as to their impact on the question of risk of harm.
In support of his submissions, the applicant referred the Court to the recent decision of the Full Court in BDY18 v Minister for Immigration & Border Protection.[10] It was submitted that the approach taken by the Court in that matter represented more or less a template for considering the applicant’s complaint. In effect, it was submitted that BDY18 was a comparable case and binding on me. The important principle was that “(t)he requisite state of satisfaction as to whether there are exceptional circumstances cannot be formed by focusing upon a particular aspect to the exclusion of other matters.”[11] If the IAA does nothing more than embark upon a process of collecting evidence which casts doubt on the credibility of the new information, then it would be acting unreasonably because it was nothing more than a “quest to disbelieve”. The applicant submitted that that is what occurred in this matter. The IAA did not make an evaluation of all the relevant material but simply collected reasons directed towards a particular result. One practical effect of this was the inherent artificiality that a failure to consider the new information brought to the overall assessment of the substance of the applicant’s claims. The failure to consider the new information meant that the IAA reasoned on the basis that the applicant’s family had returned to and remained in Afghanistan without problems. Had the three components of new information been considered by the IAA and had it exercised its discretion to obtain further new information it might have reached a different conclusion and the applicant might have succeeded in establishing the risk of harm that he asserted. In that sense the error was said to have been material because it might have deprived the applicant of the possibility of a successful outcome.
[10] [2020] FCAFC 24.
[11] Ibid, [25].
First respondent’s submissions
The first respondent submitted that there was no substance to the complaint that the IAA misconstrued s 473DD. The IAA had no duty to give reasons for procedural decisions or cite a dictionary definition of the word ‘exceptional’. What was required was simply that it consider all of the relevant circumstances and make a decision that was reasonable.[12] It was submitted that the IAA clearly did so. It was open to the IAA to consider the credibility of the new information in considering exceptional circumstances. Having concluded that it did not regard it as credible, and that exceptional circumstances did not exist, the IAA was not, because of the cumulative nature of s 473DD(a) and (b), required to go on to consider sub-section (b) separately. It was submitted that the decision in BDY18 was distinguishable on its facts.
[12] DLB17 v Minister for Home Affairs [2018] FCAFC 230 [22].
As far as the complaint of an unreasonable failure to exercise the power in s 473DC to obtain new information was concerned, it was submitted that a failure by the IAA to make any express reference to s 473DC did not of itself establish jurisdictional error. Given the limited nature of review under Part 7AA, the fact that the IAA is not under a duty to accept or request new information, the lack of a request that the IAA should either give more time for the provision of new information or exercise the discretion in s 473DC, unreasonableness could not be established.
Consideration
Did the IAA misconstrue s473DD in considering its application to the new information?
As will become apparent from the following remarks, to some extent this aspect of the applicant’s argument overlapped with the complaint that the exercise of the discretion under s 473DD was unreasonable in the legal sense.
I am not satisfied that the applicant has demonstrated that the IAA misconstrued the application of s 473DD to the new information on which the applicant sought to rely. That submission was based on the underlying contention that the IAA had applied a concept of the term ‘exceptional’ that no reasonable speaker of English would agree with. As the IAA, quite sensibly, did not attempt to define the expression ‘exceptional circumstances’, then as the applicant has submitted, the only way to test that contention is by a close consideration of the reasoning in which it engaged. I do not accept the contention that the IAA failed to consider what the applicant described as ‘the lag in time’ since the original IAA’s decision when considering the question of exceptional circumstances. The implication of the passage of time on the question of whether it should receive new information appears to have been at the forefront of the IAA’s considerations. It was for that reason that it concluded that the country information which it had originally relied on was no longer representative of current conditions in Afghanistan.[13] As a result, the IAA obtained a range of recently published new (country) information relating to the position of Hazara’s in the Jaghori District of Afghanistan, the Ghazni Province and the ongoing security situation in Afghanistan generally. It was for the same reason it was satisfied that, “there are exceptional circumstances to justify considering the new information which has been cited by the applicant in his submissions to the IAA”.[14] That new information included a significant amount of country information.
[13] CB, 240 [14].
[14] Ibid.
Contrary to the submission of the applicant, the IAA also considered the claim about the presumed deaths of two of the applicant’s five children. That was part of the new information with respect to which the IAA had serious doubts about veracity.[15] That being the case, the inherent tragedy of that claimed event took its capacity to establish ‘exceptional circumstances’ no further. Had the IAA accepted that claim on its face, then the applicant’s argument about the gravity of the events having a potential relevance to an assessment of ‘exceptional circumstances’ might have had more traction. As it is, the decision-maker simply disbelieved that claim.
[15] CB, 239 [9].
I accept the applicant’s submission that the IAA’s letter to him, dated 3 July 2019,[16] provided him with an unknown window of time in which to make submissions and seek to provide any new information. The exhortation to, “act quickly in your dealings with us, as a decision may be made at any time ...”, could have the tendency to introduce an element of uncertainty for an applicant. How quickly should an applicant act? Would the ability to respond as thoroughly as advised be compromised by the need to put material before the IAA as soon as possible in order to come within an unknown and unknowable deadline? I was informed by counsel for the first respondent that the letter was in a standard form used by the IAA. I accept that that is the case but it was of a slightly different standard form to a letter used by the IAA for the same purpose during the course of 2019. In another matter which was dealt with by this Court, the standard letter expressed the need for urgency in these terms: “act quickly in your dealings with us (as we aim to complete the review within six weeks of the case being remitted to us).”[17] There is no evidence in this matter that the representative of the applicant made a request for additional time to provide either written submissions or new information. The written submissions provided were detailed although were required to be limited in length by virtue of a Practise Direction issued by the IAA for submissions of this kind. There was no limit to the length or nature of any new information the applicant was able to submit in response to the letter. However, in the context of this matter the submission is not persuasive. There is no evidence that the applicant’s representative sought permission to submit a lengthier set of submissions than those provided. There was no reason in the circumstances for the IAA to draw an inference that the new information comprised in the applicant’s statutory declaration[18] was lacking in detail because of the narrow window in which the applicant had to submit it. In the absence of any request for further time in which to submit new information, the IAA was entitled to assume that the applicant had submitted all that he had wanted to. There is no evidence before me identifying what, if any, further new information could not be provided by virtue of the tight timeframe. Further, as the source for the new information about his family and the impact the attack in Jaghori had on them was the applicant himself, a logical conclusion would have been that the applicant had included everything in his statutory declaration that he claimed to have known. In any event, what is known from the Decision Record is that the IAA regarded the new information as lacking in detail. I am not satisfied in all of the circumstances that a reasonable consideration of that information required an allowance to be made for the fact that the applicant had finalised his response to the letter of 3 July within twelve days. The matter having been remitted for reconsideration in May 2019, and the applicant being represented, then in the context of the fast-track review provided for in Part 7AA, he was on notice that once he was advised by the IAA that it had received the remittal of the matter, any submissions or new information he might attempt to introduce would be required promptly[19]. A decision was liable to be made at any time. His martialling of new information for the reconsideration of his case could have commenced at any point after the matter was remitted.
[16] CB, 202.
[17] ENJ17 v Minister for Home Affairs [2019] FCCA 3462 [34].
[18] CB, 231.
[19] Section 473DB(2).
The refusal of the IAA to accept some new information from the applicant did not mean that it ignored the potential relevance of the attacks in Ghazni Province, Jaghori and Malistan. As it made clear in the Decision Record, it did have regard to new information cited in the applicant’s written submission, which included “the Lowy Institute Article”[20] which had been footnoted by the applicant in his written submissions as the source of information about those attacks.[21] The IAA was therefore aware of and considered the information which corroborated the first limb[22] of the first component of the new information the applicant sought to introduce.
[20] CB, 240 ‘footnote 6’.
[21] CB, 206 [4] ‘footnote 8’.
[22] ie; the fact of the attacks.
The applicant submitted that one of the reasons the decision of the IAA with respect to the new information was unreasonable is that its reasoning was defective because it found that there was no information as to why the family had left for Pakistan. To the contrary, the applicant says there was an obvious inference to be drawn that the reason was directly related to the attacks. I take the view that such an inference would have been open to the IAA. However, in assessing the information the IAA was not in error by observing that there was no information about when the applicant’s family departed their home; or what specific circumstances led to their departure; or how they travelled to Pakistan; or why it was Pakistan they travelled to; or their plans for the future. The absence of all of those details was a matter it regarded as relevant to its conclusion that the issue had been raised in general terms with a lack of specific information. There was no defect in the reasoning of the IAA in that regard.
As for the complaint that the IAA gave no reasons for rejecting the first component of the applicant’s new information, it should be noted that the IAA found there were no exceptional circumstances which warranted it receiving the new information. It seems clear from the reasons, that this was based on a consideration of the new information as a whole in so far as it specifically related to the applicant’s family and that it did not break it down into the three components identified by the applicant in his submissions. As I have observed above, the IAA did consider the new information relating to the attacks themselves. As submitted by the first respondent, the IAA was not required to give reasons for procedural decisions. Section 473EA establishes the IAA’s duty in terms of recording a decision:
“Immigration Assessment Authority's decision and written statement
Written statement of decision
(1)If the Immigration Assessment Authority makes a decision on a review under this Part, the Authority must make a written statement that:
(a) sets out the decision of the Authority on the review; and
(b) sets out the reasons for the decision; and
(c) records the day and time the statement is made.
How and when written decisions are taken to be made
(2)A decision on a review is taken to have been made:
(a) by the making of the written statement; and
(b) on the day, and at the time, the written statement is made.
(3)The Immigration Assessment Authority has no power to vary or revoke a decision to which subsection (2) applies after the day and time the written statement is made.”
The scope of s 473DE has been held by the Full Court to be as follows:
“The fact that the Authority did not refer to or explain the exercise of its discretion in its reasons does not assist the appellant in this case. As Thawley J noted in BCQ16 v Minister for Immigration & Border Protection [2018] FCA 365 (at [45], [49]–[50]), the Authority’s obligation to provide written reasons under s 473EA(1) does not require a statement as to the exercise of a procedural decision in the course of the review. This is consistent with the fact that the statutory scheme contemplates that a person may have no knowledge of the existence of a Certificate …
… The Minister submits that the reference to ‘decision’ in s 473EA(1)(b) as a matter of statutory construction is a reference to the decision by the Authority on the review and does not extend to procedural decisions that may have been made in the course of the review. We accept that construction, taking into account the terms of Division 4 of Pt 7AA as a whole. Division 4 provides for a regime whereby the ‘decision on a review’ is made by a written statement, the time and date are recorded, the decision is irrevocable, the review documents are then returned to the Secretary and the referred applicant is notified of the decision by being provided with a copy of the written statement. The construction contended for by the Minister is also consistent with the use of the word ‘decision’ in, for example, s 473DB(2), which refers to the Authority making a decision on a fast track reviewable decision at any time after the fast track reviewable decision is referred to it. Such reference is clearly a reference to a decision to affirm the delegate’s decision or remit it for consideration.”[23]
[23] BVD17 v Minister for Immigration & Border Protection (2018) 261 FCR 35 [42], [47].
The IAA was not required to set out its reasoning for the procedural decision not to consider the new information provided by the Applicant. Nonetheless, it did so and that reasoning discloses that the combination of the paucity of detail and what it found to be inconsistencies caused it to have serious doubts about the veracity of it and hence the finding that there were no ‘exceptional circumstances’.
Turning to the inconsistency submission, the IAA was incorrect when it said that the statutory declaration of the applicant had been provided prior to the submission. The chronology was that it was provided the day after the written Outline of Submissions from the representative. That error does not amount to much. The point that was being made by the IAA was about the inconsistency in the information. The applicant is correct in his submission that there is no internal inconsistency in his statutory declaration. An attack was said to have occurred, a few days later two of his sons went missing, they were presumed to be dead and his family had now fled to Quetta in Pakistan. The IAA did not find that there was an internal inconsistency in that document. There was an internal inconsistency in his written Outline of Submissions. The applicant had five children. It was first claimed that two of his sons had gone missing on 11 November 2018 and were presumed dead[24]. It was then claimed that the applicant had no family links to Mazar e Sharif because his wife and five children had fled to Pakistan.[25] Given the later contents of the statutory declaration, I reject the first respondent’s submission that it would not have been open to the IAA to conclude that the claim about five children to Pakistan might have been as a result of the typographical error. It does not therefore follow that this was the only inference open to it. The submissions and the statutory declaration were made three days apart. It was not unreasonable for the IAA to have concluded that there was an inconsistency in the materials which had remained unexplained. The conclusion it reached did not lack an intelligible justification. As to the failure to mention the power the IAA had under s 473DC to get new information, in the context of considering ‘exceptional circumstances’, it was not required to do so. It is well established that there is no general duty on a Tribunal, or in this case the IAA, to make enquiries in order to evaluate the material an applicant has put before it.[26] It is not for the IAA to make the case for the applicant.[27]
[24] CB, 207.
[25] CB, 208.
[26] Ashraf v Minister for Immigration & Border Protection [2018] FCAFC 50; SZMJM v Minister for Immigration & Citizenship [2010] FCA 309.
[27] SZNBX v Minister for Immigration & Citizenship [2009] FCA 1403; Chen v Minister for Immigration & Citizenship [2011] FCAFC 56.
The final complaint made about the process of reasoning undertaken by the IAA was that it failed to consider s 473DD(b)(i) and (ii), namely whether the information was credible personal information or information that could not have been provided before the delegate’s decision. The effect of that failure was that the IAA only considered the question of ‘exceptional circumstances’ by evaluating the new information in the wrong and defective way I have referred to above. As I have noted above, the requirements in s 473DD(a) and (b) are cumulative. Whilst the matters in those subsections may overlap, there is nothing in the wording of the section which prevents the IAA from determining the question of exceptional circumstances without reference to the matters referred to in subsection (b). In considering the question of ‘exceptional circumstances’ there is nothing to prevent the IAA from making an evaluative assessment of the claims at that stage, which is what it did here.[28]
[28] Op cit, DLB17, [22].
As I indicated at the outset of this section of my reasons, I am not satisfied that the applicant has demonstrated that the IAA misconstrued the operation of s 473DD in its application of it to the new information.
Did the IAA form its state of satisfaction as to s473DD in a legally unreasonable way in deciding not to consider the new information?
As the High Court has recently reaffirmed, whether or not a decision is unreasonable must be determined in the context of the scope, purpose and objects of the statutory source of power under which the decision was made.[29] A consideration of that context will demonstrate the scope of ‘decisional freedom’ open to the decision-maker.[30] Whether a decision is legally unreasonable will always be fact dependent and a careful evaluation of the evidence will be required.[31] It is clear that a decision which lacks an evident and intelligible justification may well be found to be unreasonable. Where the reasons do disclose such a justification it will be rare for a court to find that the exercise of a discretionary power was unreasonable. That proposition has been explained in the following way in a recent decision of the Full Court:
“If the reasons do provide an intelligible justification for the exercise of the power, legal unreasonableness is unlikely to be found, unless the ultimate exercise of the power itself is legally unreasonable, but that will be rare. Having regard to the approach of the three Justices in SZVFW High Court, where the reasons do disclose an intelligible justification for the exercise of the power, the judicial review court may point to additional reasons which were not relied upon by the primary decision-maker as reinforcing the court’s finding that there was no unreasonableness in the legal sense. A court exercising judicial review jurisdiction is not, however, entitled to replace a primary decision-maker’s reasons which do not disclose an intelligible justification for the exercise of the power with reasons which were not relied upon by the decision-maker. That would involve a transgression of the proper limits of judicial review. Those limits are not transgressed, however, where the judicial review court finds that the reasons given by the decision-maker do provide an intelligible justification, a conclusion which is then reinforced by additional reasons which could have been relied upon by the decision-maker but were not.[32]
[29] Minister for Immigration & Border Protection v SZVFW [2018] HCA 30; see also Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 [28]; Minister for Immigration & Border Protection v Stretton (2016) 237 FCR 1 [11]-[12].
[30] Ibid, Li, [28].
[31] Ibid, SZVFW, [84].
[32] Minister for Immigration & Border Protection v Haq (2019) 365 ALR 202 [35].
Where reasons are given, the focus of the enquiry must be on the reasons themselves.
The scope of the power in s 473DD is that of a discretion which can only be exercised if the cumulative conditions in s 473DD(a) and (b) have been satisfied. Each of those cumulative conditions require a degree of discretionary evaluation. The discretion created by s 473DD exists in the context of the overarching prohibition against considering new information unless those cumulative conditions have been met. The purpose of that prohibition is to strictly limit the receipt and consideration of information which was not before the delegate who made the original decision refusing a protection visa to a fast-track applicant. The object of the prohibition is to facilitate the limited form of review created by the statute for fast track decisions. The scope of decisional freedom to consider new information is necessarily confined because it must be exercised in a manner consistent with the object and purpose of Part 7AA of the Act.
In that context, the refusal of the IAA to consider the new information cannot be said to have been unreasonable. The reasons of the IAA disclose an intelligible justification. It found that the information had a paucity of detail, the was an inconsistency between one aspect of the submissions made on behalf of the applicant, presumably on his instructions, and it had serious doubts about its veracity. For those reasons it concluded that ‘exceptional circumstances’ did not exist to consider it. It may be that within the scope of decisional freedom, minds might have differed as to whether ‘exceptional circumstances’ existed in this case. That does not establish that the decision was unreasonable in the legal sense. That is particularly so given the fact that the IAA did find that ‘exceptional circumstances’ existed which made it appropriate to consider other new information in the form of the country information which was cited by the applicant and to which I have referred above. That country information was directed to current conditions in Afghanistan, including security conditions, and in particular with respect to the Jaghori District and the Ghazni Province. It also included information about the attacks in October and November 2018 to which the applicant had referred in his written Outline of Submissions and which formed the backdrop to the new information which the IAA rejected. In other words, whilst the IAA did not consider that part of the new information proffered by the applicant which he said was specifically relevant to his family, the foundational issue, which the applicant unsuccessfully claimed, had been the cause of his family relocating to Pakistan, namely the risks in that area of Afghanistan to Hazara Shias and hence the likely risk to the applicant himself, was considered.
I have considered the decision in BDY18 on which significant emphasis was placed by the applicant in this matter. As was apparent from those reasons[33] the decision in that matter was, with respect, an orthodox application of the relevant principles to the specific facts of that matter. I do not regard it as establishing a new process of reasoning which must be applied with respect to establishing whether factual findings were legally unreasonable. It does not establish that there should be a departure from the general principle that legal unreasonableness cannot be established by a consideration of factual similarities or differences between individual cases.[34]
[33] Op cit, BDY18, [30].
[34] Op cit, SZVFW, [84].
I am not satisfied that it has been established that the IAA exercised its discretion with respect to s 473DD in a manner that was unreasonable. I do not accept the submission that, as found in BDY18, the IAA was on “a quest to disbelieve” the applicant.
Unreasonable failure to exercise discretion pursuant to s473DC
As I have already observed, the failure of the IAA to make reference to its power under s 473DC to obtain new information does not of itself establish any jurisdictional error. The onus is on the applicant to demonstrate that the decision not to obtain new information from the applicant about his claims was unreasonable in the circumstances. It was not the role of the IAA to make the applicant’s case for him. That was particularly so in the context of Part 7AA where it was not required to accept or request new information. I have indicated above that I do not accept the submission of the applicant that it was not within the power of the IAA to find that there were no ‘exceptional circumstances’ in the absence of having exercised its power under s 473DC on the basis that the new information provided by the applicant was not detailed enough to make that finding. The IAA was entitled to make its determination on the basis of the case presented to it by the applicant. It would not have been lost on the IAA that the applicant had at all relevant stages been represented by the same migration agent. As in DUZ17,[35] there was no request from the applicant’s representative for that power to be exercised and for that reason no “trigger” which might have required it to depart from the position it had obviously taken with respect to the new information in question. The IAA was clearly not oblivious to the power it had under s 473DC because it exercised that power to obtain additional country information over and above that which it accepted from the applicant. I am not satisfied that it has been demonstrated that there was an unreasonable failure on the part of the IAA to obtain new information from the applicant which might have had the effect of adding more substance to the new information he had articulated.
[35] DUZ17 v Minister for Home Affairs [2019] FCA 1593 [51].
For the above reasons I am not satisfied that jurisdictional error has been demonstrated and I make the orders to be found at the beginning of these reasons.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Heffernan
Associate:
Date: 28 July 2020
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