BYB18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 81
Federal Circuit and Family Court of Australia
(DIVISION 2)
BYB18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 81
File number(s): PEG 309 of 2020 Judgment of: JUDGE LUCEV Date of judgment: 10 February 2023 Catchwords: MIGRATION – Judicial review – decision of the Immigration Assessment Authority – Safe Haven Enterprise (Subclass 790) visa – citizen of Afghanistan – whether misconstruction or misapplication of s 473DD of the Migration Act 1958 (Cth) – whether jurisdictional error – writs issued Legislation: Migration Act 1958 (Cth) Pt 7AA, ss 65, 473CA, 473DD, 474, 476 Cases cited: AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111; (2018) 162 ALD 442
AUH17 v Minister for Immigration and Border Protection [2018] FCA 388
AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; (2020) 269 CLR 494; (2020) 384 ALR 196; (2020) 94 ALJR 1007
BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 268 CLR 29; (2019) 93 ALJR 1091; (2019) 373 ALR 196
BVZ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1803
BYB18 v Minister for Immigration & Anor [2020] FCCA 1832
Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352; (2017) 347 ALR 173
CHF16 v Minister for Immigration and Border Protection [2017] FCAFC 192; (2017) 257 FCR 148; (2017) 162 ALD 1
CSR16 v Minister for Immigration and Border Protection [2018] FCA 474
DYS16 v Minister for Immigration and Border Protection [2018] FCAFC 33; (2018) 260 FCR 260
Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441; (2021) 390 ALR 590
Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; (2017) 257 FCR 111; (2017) 158 ALD 198
Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110; (2018) 264 FCR 249; (2018) 162 ALD 427
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020] FCAFC 159; (2020) 171 ALD 477
Plaintiff M174 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217; (2018) 92 ALJR 481; (2018) 353 ALR 600
Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1
Division: Division 2 General Federal Law Number of paragraphs: 32 Date of last submission: 21 July 2022 Date of hearing: 21 July 2022 Place: Perth Counsel for the Applicant: Mr Crowley Solicitor for the Applicant: AUM Legal Counsel for the First Respondent: Ms Taggart Solicitor for the First Respondent: Australian Government Solicitor Second Respondent: Submitting appearance, save as to costs ORDERS
PEG 309 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BYB18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
JUDGE LUCEV
DATE OF ORDER:
10 February 2023
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.A writ of certiorari issue quashing the decision of the second respondent made on 15 September 2020.
3.A writ of mandamus issue requiring the second respondent to re-determine its review of the decision of the delegate of the first respondent made on 17 June 2017, and determine it according to law.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LUCEV
Introduction
Before the Court is an application for judicial review filed by the applicant, BYB18, on 16 October 2020 (“Judicial Review Application”) under s 476 of the Migration Act 1958 (Cth) (“Migration Act”), which was subsequently amended by an amended Judicial Review Application filed on 27 January 2021 (“Amended Judicial Review Application”). The Amended Judicial Review Application concerns a decision of the Immigration Assessment Authority (“Second Authority Decision” and “Authority” respectively) handed down 15 September 2020 in which the Authority affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the then Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, now the Minister for Immigration, Citizenship, and Multicultural Affairs (“Minister”), not to grant BYB18 a Safe Haven Enterprise (Subclass 790) visa (“SHE Visa”).
The Amended Judicial Review Application contains one ground which is set out below at [10].
The following materials are before the Court:
(a)a Court Book (“CB”) numbering 886 pages which was marked as Exhibit 1;
(b)the affidavit of BYB18 affirmed 10 October 2020;
(c)BYB18’s written submissions filed 18 May 2021 (“BYB18’s Submissions”); and
(d)the Minister’s written submissions filed 15 June 2021 (“Minister’s Submissions”).
Procedural Background
The relevant procedural background to the matter is as follows:
(a)BYB18 is a citizen of Afghanistan of Tajik ancestry who was 37 years of age at the time of the Second Authority Decision: CB 13 and 15;
(b)BYB18 arrived in Australia on 24 December 2012: CB 53;
(c)on 13 November 2016 BYB18 applied for the SHE Visa: CB 32-76;
(d)on 17 June 2017 the Delegate’s Decision to refuse the SHE Visa was made: CB 146-172;
(e)pursuant to s 473CA of the Migration Act the Delegate’s Decision was referred to the Authority for review: CB 181-193;
(f)on 19 March 2018 the Authority affirmed the Delegate’s Decision to refuse BYB18 the SHE Visa ( “First Authority Decision”): CB 220-243;
(g)on 16 April 2018 BYB18 applied to this Court (then styled the Federal Circuit Court of Australia) for judicial review of the First Authority Decision;
(h)on 6 July 2020 this Court (differently constituted) quashed the First Authority Decision and the matter was remitted to the Authority to review the SHE Visa application according to law: CB 244-245; BYB18 v Minister for Immigration & Anor [2020] FCCA 1832;
(i)on 15 September 2020 the Authority, differently constituted to the Authority which made the First Authority Decision, decided to affirm the Delegate’s Decision to refuse BYB18 the SHE Visa (“Second Authority Decision”): CB 868-886.
Claims made
The claims for protection made by BYB18 were as follows, as set out at CB 872-873 at [22]:
The applicant’s claims can be summarised as follows:
•In 1982 he was born in Warsaj District, Takhar Province.
•His father and his paternal uncle, AJ, had joint use of the family farming land. In 1987 his father passed away and AJ wanted all the land for his own family.
•Many years later the village elders confirmed the applicant and his brother, AW, owned the land. AJ and his cousins were unhappy with this.
•In December 2008 AJ, his children and cousins attacked AW when he was alone. AW received several stab wounds and one of AJ’s cousins, E, was killed. The police arrested AJ, his three sons, and AW. AJ accused AW of killing E.
•The applicant was at the mosque at the time of the incident, and a friend warned him not to return to the village. Instead he went to Takhar City where his sister lives. He travelled to Kabul with his nephew for one night, then Kandahar and Quetta before settling in Karachi, Pakistan.
•The police went to his house in Warsaj District looking for him on several occasions shortly after his departure.
•AJ is well connected to the Afghan authorities. After the applicant’s departure the police went to his house in Warsaj several times looking for him. AJ and his sons were released but AW was wrongly convicted of E’s murder.
•In 2012 the applicant and his nephew departed Pakistan by plane with the assistance of a people smuggler.
•One of AJ’s sons is a police officer in Kabul, another son is a police officer in Takhar. Two other sons are doctors in Takhar. The family are very influential in Takhar and well connected to the authorities.
•AJ has illegally retained possession of the family land in Warsaj District. The applicant’s mother and younger (unmarried) sister are living together in Takhar City and his two married sisters also reside there with their families.
•The applicant fears that if he returns to Afghanistan AJ and his allied relatives will seriously harm or kill him as revenge for E’s death and because AJ wants to prevent the applicant from reclaiming the land. He also fears harm from corrupt police allied with AJ.
•He also fears the Taliban or other militants will impute him to hold a political opinion against them, and seriously harm or kill him, because he has been away from Afghanistan and sought asylum in Australia.
Second Authority Decision
It is only necessary to refer to that part of the Second Authority Decision at CB 871-872 at [13]-[17], in which the Authority:
(a)noted the third and final submission (“Third Authority Submission”) made by BYB18’s lawyer: CB 871 at [13];
(b)noted at CB 871 at [14] that attached to the Third Authority Submission was a new statement (“New Statement”) from BYB18 in which he alleged that:
(i)in June 2018 BYB18’s brother, AW, was released from prison in Afghanistan having served ten years of an 18-year sentence;
(ii)several months after AW’s release from prison, four relatives, aligned with AJ, attacked AW. AW drew his gun and shot at the main offender but missed and hit a bystander in the leg;
(iii)the police arrested AW who explained it was an accident and that he had been attempting to act in self-defence, and the police released AW and arrested the main offender from the group of four relatives;
(iv)AW realised that he would not be able to live safely in Afghanistan as AJ, and his allied relatives, would continue to pursue him, and so AW fled to Iran, where he remains illegally, and BYB18 argued that this proves it is not safe for BYB18 to return to Afghanistan; and
(v)BYB18’s siblings (AW and three sisters) are not speaking to BYB18 because he did not stay to fight for the land which rightfully belongs to their family. Furthermore, BYB18’s nephew, who came with him to Australia and “may be” in Adelaide, is in a “spot of trouble with the law for a serious motor accident” and could be sent to jail. His nephew’s mother (BYB18’s sister), does not understand the Australian legal system and is angry BYB18 will not assist her son. This proves BYB18 cannot expect support from his sisters’ families if he returns to Afghanistan;
(c)at CB 871 at [15] observed that the New Statement:
(i)explains that these events have taken place since the Delegate’s Decision and so constitute new information which could not have been provided earlier; and
(ii)argues exceptional circumstances exist to justify consideration of the new information because it is credible and personal and because it may have affected consideration of BYB18’s claims;
(d)at CB 871-872 at [16] found that:
(i)the New Statement lacked any real detail and there was no evidence to corroborate the assertions it contains, noting BYB18 has not previously claimed that his siblings were angry with him for not staying to fight for the family land and he had not provided any reason as to why this is now purportedly the case, twelve years after his departure from Afghanistan;
(ii)the New Statement was at odds with BYB18’s evidence during his arrival interview that in 2012 his sister’s husband organised and paid the smuggler for BYB18’s and his nephew’s journey to Australia, and
(iii)BYB18 had not provided evidence to corroborate his new claim regarding his nephew and the motor vehicle incident in Australia or, in the alternative, an explanation as to why such evidence was not available to him;
(e)the lack of evidence to corroborate the new claim that AW was released eight years early from his murder sentence, or that he is in Iran, was concerning: CB 872 at [17]; and
(f)overall, the contents of the New Statement were little more than unsubstantiated assertions, and was not satisfied exceptional circumstances existed to justify consideration of the claims contained in the New Statement: CB 872 at [17].
Amended Judicial Review Application
The requirement for jurisdictional error
This Court may set aside the Second Authority Decision upon judicial review if it is affected by jurisdictional error: Migration Act, ss 474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1. The jurisdictional error must be material in the requisite sense explained in MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441; (2021) 390 ALR 590 at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ.
The onus is upon BYB18 to establish jurisdictional error in the Second Authority Decision: BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 268 CLR 29; (2019) 93 ALJR 1091; (2019) 373 ALR 196, HCA at [38] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ; Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352; (2017) 347 ALR 173 at [47] per Griffiths, White and Bromwich JJ.
It is not within the jurisdiction of this Court to review the merits of the Second Authority Decision, or to actually determine BYB18’s SHE Visa application: Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1; CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
Ground of review
The Amended Judicial Review Application sets out a single particularised ground of review, as follows:
1A. The decision of the Immigration Assessment Authority affirming the delegate’s refusal was vitiated by a misconstruction or misapplication of section 473DD of the Migration Act 1958 (Cth).
Particulars
1A.1 In declining to receive the ’new information’ described at paragraph [14], the Authority failed to bring to account in its evaluation of ‘exceptional circumstances' that the ’new information’ satisfied paragraph 473DD(b)(i).
1A.2 In declining to receive the ’new information’ described at paragraph [14], the Authority misconstrued paragraph 473DD(b)(ii) as requiring a too-high threshold of ’truthfulness’ rather than merely ‘capable of being believed’.
BYB18’s Submissions
BYB18’s Submissions address each particular of ground 1A separately.
Particular 1A.1
In relation to particular 1A.1 and the dispositive principles BYB18 submitted that:
(a)in AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; (2020) 269 CLR 494; (2020) 384 ALR 196; (2020) 94 ALJR 1007 (“AUS17”) the Authority decided there were not “exceptional circumstances” engaging 473DD(a) of the Migration Act in respect of “new information”. The Authority reasoned that the criterion under s 473DD(b)(i) of the Migration Act – whether the documents were “not, or could not have been, before the Minister when the Minister made the decision under section 65 [of the Migration Act]: AUS17 at [5] per Kiefel CJ, Gageler, Keane and Gordon JJ – was not satisfied. The Authority then decided that there were no “exceptional circumstances”;
(b)the High Court of Australia, in effect, held there was a positive duty (rather than a procedural discretion) to assess “new information” against both s 473DD(b)(i) and (ii) of the Migration Act –“credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.”: AUS17 at [5(b)(ii)] per Kiefel CJ, Gageler, Keane and Gordon JJ. There was error in the Authority not evaluating the “new information” also against s 473DD(b)(ii) of the Migration Act. Had it done so, that could have affected the view it took of “exceptional circumstances”; and
(c)although the requirements of s 473DD(a) and (b) of the Migration Act are cumulative, they overlap. If “new information” is found to satisfy either or both the criteria in s 473DD(b) of the Migration Act, the Authority must take that circumstance into account when considering whether s 473DD(a) of the Migration Act is satisfied: AUS17 at [11]-[12] per Kiefel CJ, Gageler, Keane and Gordon JJ. That is, the Authority’s satisfaction of either or both of the limbs of s 473DD(b) of the Migration Act may inform its satisfaction under s 473DD(a) of the Migration Act that there are exceptional circumstances justifying consideration of the “new information”: Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; (2017) 257 FCR 111; (2017) 158 ALD 198 at [102] per Kenny, Tracey and Griffiths JJ; AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111; (2018) 162 ALD 442 at [14] per McKerracher, Murphy and Davies JJ. In BVZ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1803 at [14(e)] per White J the Federal Court of Australia observed that:
14(e)By way of example, the IAA’s satisfaction that the new information could not have been provided to the Minister at the time of the s 65 decision may contribute to its satisfaction that there are exceptional circumstances justifying consideration of the new information: …
citing Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110; (2018) 264 FCR 249; (2018) 162 ALD 427 at [48] per McKerracher, Murphy and Davies JJ; CHF16 v Minister for Immigration and Border Protection [2017] FCAFC 192; (2017) 257 FCR 148; (2017) 162 ALD 1 at [17]-[18] per Gilmour, Robertson and Kerr JJ; DYS16 v Minister for Immigration and Border Protection [2018] FCAFC 33; (2018) 260 FCR 260 at [31]-[33] per Tracey, Murphy and Kerr JJ; CAQ17 v Minister for Immigration and Border Protection [2019] FCAFC 203; (2019) 274 FCR 477 (“CAQ17”) at [91] per Derrington and Steward JJ.
In relation to particular 1A.1 and the application of the dispositive principle to the facts BYB18 submitted that:
(a)the Authority’s error in relation to the application of the dispositive principle to the facts can be stated very briefly. The Second Authority Decision (which predated AUS17 by 30 days), reveals that only s 473DD(b)(ii) of the Migration Act was considered, and that all of the reasoning at CB 871-872 at [16]-[17] is an evaluation of the believability of the “new information”;
(b)conversely, the Second Authority Decision recognises at CB 871 at [15] that the “new information” speaks to events said to occur after the Delegate’s Decision and so constitutes new information which could not have been provided earlier. But it goes no further. The reasoning in AUS17 placed on the Authority a positive obligation to bring to account the new information under both s 473DD(b)(i) and (ii) of the Migration Act;
(c)the proper inference in context of the relatively elaborate reasoning going to s 473DD(b)(ii) of the Migration Act at CB 871-872 at [16]- [17] and no reasoning going to s 473DD(b)(i) of the Migration Act, is that s 473DD(b)(i) of the Migration Act was not considered at all. It is perfectly orthodox to have regard to the fact that reasons having been given in fact, but that were not necessary to be given, are the totality of the decision-maker’s reasoning on an issue: CAQ17 at [61] per Derrington and Steward JJ; and
(d)had the Authority gone further and considered that the fact that the new information could not have been given earlier was an independent basis to inform its evaluation of “exceptional circumstances” under s 473DD(a) of the Migration Act, the outcome might have been different.
Particular 1A.2
In relation to particular 1A.2 and the dispositive principles BYB18 submitted that in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020] FCAFC 159; (2020) 171 ALD 477 (“BTW17”) a majority of the Full Court of the Federal Court of Australia rejected the Minister’s attack on the judgment in CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 (“CSR16”). In CSR16 the Federal Court of Australia held that the reference to “credible personal information” in s 473DD(b)(ii) of the Migration Act required the Authority to be satisfied not that new information be “true” but merely that it be “capable of being accepted … as truthful”: BTW17 at [56]–[80] per Mortimer and Jackson JJ.
In relation to particular 1A.2 and the application of the dispositive principle to the facts BYB18 submitted that:
(a)the Authority does not anywhere say that the new information is incapable of being believed. Rather, its concern is that the “new information” is uncorroborated: “there is no evidence to corroborate the assertions it contains”: CB 871 at [16] and that it contains “unsubstantiated assertions”: CB 872 at [17];
(b)the Authority was sceptical that BYB18 had not previously claimed that his siblings are angry with him and cited an absence of any explanation for why that is “purportedly” now the case: CB 871 at [16]. Expressions of scepticism and a lack of corroboration are quintessentially not matters that denude information of its capacity to be believed, but are quintessentially matters to be weighed in the balance at the deliberative stage.
Minister’s Submissions
The Minister’s Submissions dealt with the matter under two headings; first, in relation to the Authority’s assessment that the new information was not credible, and, second, in relation to the alleged error in relation to s 473DD(b)(i) of the Migration Act.
New information not credible
In relation to the Authority’s assessment that the new information was not credible the Minister submitted that:
(a)the Second Authority was not satisfied that there were exceptional circumstances to consider the new information: CB 871–872 at [15]-[17];
(b)read fairly as a whole, and without an eye finely attuned for error, the Second Authority Decision reveals that it was not satisfied that the information was not capable of being believed. That overall finding is significant when considering the particular errors alleged;
(c)in short, the Authority identified at CB 871-872 at [16]-[17] that the new information:
(i)was highly general and was little more than unsubstantiated assertions;
(ii)raised matters that suggested a fundamental shift had occurred in the attitudes of BYB18’s sisters who were now said to be angry with him for having fled Afghanistan, some 12 years after his departure:
(A)when there was no explanation or identifiable basis for why that apparent change in position had occurred; and
(B)where it was not consistent with BYB18’s earlier accounts that at least one of those siblings had assisted BYB18 and his nephew to flee;
(C)where BYB18 contends the new information was to the effect that the basis for his siblings’ “disappointment” with him had been because he had not assisted his nephew with the legal difficulties arising from his motor accident; and
(D)where BYB18’s statement was: “My three sisters are very upset with me because I left for Australia and did not stay behind to fight for the land which rightfully belongs to us” and that the mother of the nephew was “angrier” with BYB18 as a result of her son’s difficulties: CB 289;
(iii)was not supported by corroborative information; and
(iv)was not provided with any explanation about why such corroboration could or could not be provided;
(d)in those circumstances, the Authority is to be understood as having concluded that the information regarding BYB18’s siblings being angry with him for fleeing Afghanistan was not credible in the sense that it was not capable of being believed. There is no error in that approach. Although the Authority was obliged not to test or assess the new information for the purpose of determining whether it was, in fact, true it was not obliged to merely consider the new information without regard to existing information: BTW17 at [72], [73] and [78(c)] per Mortimer and Jackson JJ;
(e)the Authority considered BYB18’s claim that his nephew had been involved in an accident of some kind and again observed that no corroboration or information beyond highly generalised assertions had been provided in relation to that matter. No information was provided, for example, as to when that accident had even occurred: CB 289;
(f)in the circumstances of having considered that information regarding BYB18’s siblings and nephew, and identified its non-satisfaction as to its credibility, the Authority observed that the absence of any corroborative information concerning the release of BYB18’s brother from prison, or that the brother is in Iran, “is concerning”: CB 872 at [17]; and
(g)the Authority considered the new information as a whole and concluded that where the information was highly general and amounted to unsubstantiated allegations it was not capable of being believed. There is no error in a conclusion of that kind for the purposes of s 473DD(b)(ii) of the Migration Act.
Alleged error in relation to s 473DD(b)(i) of the Migration Act
Concerning the alleged error in relation to s 473DD(b)(i) of the Migration Act the Minister submitted that:
(a)section 473DD(b)(i) of the Migration Act required that BYB18 satisfy the Authority that in relation to new information, it was not, and could not have been, provided to the Minister before the Delegate’s Decision made under s 65 of the Migration Act, and while this did not impose an onus upon BYB18, there must be some material provided by way of explanation as to why the new information was not provided earlier: AUH17 v Minister for Immigration and Border Protection [2018] FCA 388 at [33] per Mortimer J;
(b)the Authority was not obliged to uncritically accept any contention or explanation as to why new information was not provided at an earlier point. So much is evident from the requirement that the Authority must reach a state of satisfaction about that matter. It will be a matter of fact to be determined in each case whether the Authority made any relevant error in finding that it was or was not satisfied about that matter;
(c)insofar as BYB18 contends that the Authority erred in failing to “bring to account” the requirement of s 473DD(b)(i) of the Migration Act, BYB18 contends that the Second Authority Decision at CB 871-872 at [16]-[17] is all directed to the requirements of s 473DD(b)(ii) of the Migration Act;
(d)the Second Authority Decision:
(i)does not expressly refer to either s 473DD(b)(i) or (ii) of the Migration Act, however, it is apparent that the Authority was aware of their requirements and did consider them for the purpose of determining whether there were exceptional circumstances which justified consideration of the new information; and
(ii)expressly acknowledges BYB18’s contention that he could not have provided the new information to the Delegate because it was information that arose from events said to have occurred after the Delegate had decided to refuse the SHE Visa. That was the height of the available information relevant to s 473DD(b)(i) of the Migration Act;
(e)the Authority was not obliged to uncritically accept BYB18’s assertion that the new information had arisen only after the refusal of the SHE Visa in the Delegate’s Decision. Read fairly and as a whole, the Second Authority Decision reveals that the Authority was not satisfied that the information was not and could not have been provided to the Delegate;
(f)the concerns expressed in the Second Authority Decision as to the generality of the new information, the absence of any corroborative information and the unexplained change in position by BYB18’s siblings, was also relevant to the assessment of whether the Authority was satisfied that the new information was not, and could not, have been provided to the Delegate. Where BYB18’s assertion was the only information available to the Authority relevant to s 473DD(b)(i) of the Migration Act, that was the height that the Authority’s consideration could reach. Although the Authority had to consider whether the requirements of 473DD(b)(i) and (ii) of the Migration Act were satisfied, it had to do so on the basis of information before it. BYB18’s explanation did not permit for consideration of those requirements having regard to some other information;
(g)the Second Authority Decision at CB 871 at [16] therefore:
(i)noted BYB18 had not previously claimed that his sisters were angry;
(ii)noted BYB18 had not “provided any reason as to why this is now purportedly the case, twelve years after his departure from Afghanistan”; and
(iii)observed it considered that claim to be “at odds with the applicant’s evidence during his arrival interview that in 2012 his sister’s husband organised and paid for the smuggler for his and his nephew’s journey to Australia”;
(h)the Authority’s concern that BYB18 had not explained why his sisters were now angry at his departure (when the stated reason for that anger had been in existence when BYB18 departed Afghanistan) is consistent with an understanding that the Authority understood BYB18’s assertion that this was a recent development, but that, in the surrounding circumstances, that bald assertion was not persuasive;
(i)similarly, the Authority did not consider that assertion to be persuasive in relation to the question of why the information concerning BYB18’s nephew and his brother could not have been provided to the Delegate; and
(j)as set out above, it concerned BYB18’s nephew, but for the assertion it occurred after the Delegate’s Decision, no detail or information was provided about when the accident was said to have occurred. It is acknowledged that, in the case of BYB18’s brother, some information had been provided as to when it was said he had been released from jail (in 2018). Having expressly referred to that assertion in its reasons, it should not be concluded the Authority overlooked that matter. Rather, the preferable conclusion is that for the reasons given in the Second Authority Decision the Authority was not satisfied as to BYB18’s explanation.
Consideration
Requirements under s 473DD of the Migration Act
The primary rule applicable to so called fast track reviews by the Authority under Pt 7AA of the Migration Act is that they be conducted by the Authority on the review material provided to the Authority “without accepting or requesting new information and without interviewing the referred applicant”, subject to certain exceptions including those provided for in s 473DD of the Migration Act: Plaintiff M174 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217; (2018) 92 ALJR 481; (2018) 353 ALR 600 (“Plaintiff M174”) at [22] per Gageler, Keane and Nettle JJ.
Section 473DD of the Migration Act provides as follows:
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a)the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b)the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i)was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii)is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.
The exercise of the power under s 473DD of the Migration Act is anterior to the Authority’s consideration of new information given to it: Plaintiff M174 at [34] per Gageler, Keane and Nettle JJ; BTW17 at [68] per Mortimer and Jackson JJ. Effectively what the Authority does at this anterior stage is to determine what material – and in particular what, if any, new information – should be before it on the fast track review: AUS17 at [6] per Kiefel CJ, Gageler, Keane and Gordon JJ; BTW17 at [71] per Mortimer and Jackson JJ. In BTW17 at [76]-[77] per Mortimer and Jackson JJ it was further observed that:
76Particularly in a scheme premised on a review “on the papers”, there is a real difficulty with the Authority undertaking some kind of substantively evaluative process at this point, and weighing the new information, the visa applicant’s explanation of why it should be considered, and the existing review material together, and then reaching some relatively definitive findings about the credibility of the visa applicant (which would occur in deciding if the new information were “true”). That difficulty is that the Authority is, in substance, taking into account material that is not before it on the review in determining the credibility of the visa applicant. That is neither what the legislative scheme of Pt 7AA contemplates nor what it permits. Fresh decisions on the review must be based on the review material before the Authority: they cannot be based on extraneous material, which is what “new information” is, until it is admitted. That, in our opinion, is an important reason why the approach identified by Bromberg J in CSR16 is correct.
77Viewed in its context, as Bromberg J identified at [42], the terms of s 473DD(b)(ii) operate as a filter, which the Authority is required to apply to “new information” proposed to be presented by a visa applicant. The subsection sets a threshold, requiring a visa applicant to satisfy the Authority the new information has that character, or, if it does not have that character, that it was not and could not have been provided to the Minister or her or his delegate prior to the s 65 decision (s 473DD(b)(i)). In either case the Authority must still be satisfied there are “exceptional circumstances” justifying including the new information in the material to be considered by the Authority on its review. Considering s 473DD as a whole, there is no basis to suppose Parliament intended some kind of intensive and final analysis of the probative value of new information to occur within the confines of s 473DD(b)(ii). As the Full Court observed in BDY18 at [23]-[26], there is some overlap, and the factors in (b) may well inform the factors in (a).
What the Authority must not do is to “in substance embark on the conduct of its review – making a fresh decision – by using material to determine a visa applicant’s credibility that it then decides to exclude from the review. The scheme does not intend that this can occur”: BTW17 at [78(c)] per Mortimer and Jackson JJ.
New information must meet at least one of the additional criteria specified in s 473DD(b) of the Migration Act, and, relevantly here, meet the criterion specified in s 473DD(b)(i) of the Migration Act if a visa applicant “satisfies the Authority that the new information meets the bipartite description of information that was not before the Minister at the time of making the referred decision and that could not have been before the Minister at the time of making the referred decision”: AUS17 at [8] per Kiefel CJ, Gageler, Keane and Gordon JJ. Of the failure by the Authority to perform the procedural duty imposed by s 473DD of the Migration Act it was observed in AUS17 at [12] per Kiefel CJ, Gageler, Keane and Gordon JJ as follows:
12The result, as has been recognised by the Federal Court in numerous other cases, is that the Authority does not perform the procedural duty imposed on it by s 473DD in its conduct of a review if it determines in the purported application of the criterion in s 473DD(a) that exceptional circumstances justifying consideration of new information obtained from the referred applicant do not exist without first assessing that information against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and then taking the outcome of that assessment into account in its assessment against the criterion specified in s 473DD(a). The nature of the non-performance of the procedural duty in such a case is not inaccurately characterised as a failure to take account of a mandatory relevant consideration in the purported application of the criterion in s 473DD(a).
[Footnotes omitted]
Particular 1A.1
For the purposes of s 473DD(b)(i) of the Migration Act the Authority, on the basis of AUS17, had to be satisfied that the new information:
(a)was not; and
(b)could not have been,
before the Minister at the time of the making of the Delegate’s Decision.
In the Second Authority Decision the Authority:
(a)at CB 871 at [15] in relation to the New Statement repeated:
(i)what the New Statement said about when the events described therein had taken place, and that those events therefore constituted new information; and
(ii)the argument in the New Statement that exceptional circumstances existed to justify consideration of the new information because it was credible and personal and may have affected consideration of BYB18’s claims; and
(b)at CB 871-872 at [16]-[17] deals with the detail of the claims made in the New Statement and whether there was evidence of corroboration of them.
In the Second Authority Decision the Authority:
(a)did not advert to s 473DD(b)(i) of the Migration Act (and did not include s 473DD in “Applicable law” set out at the end of the Second Authority Decision: CB 883-886);
(b)did not set out or advert to the matters of which it had to be satisfied for the purposes of s 473DD(b)(i) of the Migration Act; and
(c)made no finding as to its satisfaction, or otherwise, in relation to the requirements of s 473DD(b)(i) of the Migration Act.
The failure to advert to s 473DD(b)(i) of the Migration Act or the matters of which the Authority had to be satisfied, coupled with the failure to actually make findings as to its satisfaction, or otherwise, in relation to the requirements of s 473DD(b)(i) of the Migration Act, indicate a failure by the Authority in the Second Authority Decision to undertake the procedural duty imposed by s 473DD(b)(i) of the Migration Act: AUS17 at [12] per Kiefel CJ, Gageler, Keane and Gordon JJ. Insofar as it was argued that there was not sufficient detail to form the basis for the requisite state of satisfaction that was not the basis on which the Authority considered the matter. If that was the case the Authority could and should have said so. Further, it was not sufficient for the Authority to simply repeat the arguments concerning the new information in the New Statement, and then jump to dealing with the claims made therein (and particularly as to whether they were corroborated), without performing the procedural duty imposed by s 473DD(b)(i) of the Migration Act: AUS17 at [12] per Kiefel CJ, Gageler, Keane and Gordon JJ. In these circumstances, the Second Authority Decision was affected by jurisdictional error.
Particular 1A.2
The focus of the Second Authority Decision in considering the New Statement at CB 871-872 at [16]-[17] is upon whether the new information therein corroborates the claims made in the New Statement, leading to a finding at CB 872 at [17] that the contents of the New Statement are uncorroborated statements which do not satisfy the Authority that there are exceptional circumstances justifying consideration of the claims made in the New Statement.
The Authority’s consideration of the new information in the New Statement fails to consider the essential question of whether any “credible personal information” in the New Statement might be capable of being accepted as truthful, as opposed to being true: BTW17 at [75]-[76] and [78(a)] per Mortimer and Jackson JJ. Rather, the Authority’s reasoning is all directed to an evaluation of the strength and truth of the evidence, and thus it only considered the essential truth of the new information, in order to justify the exclusion of the New Statement, which was a course that the scheme of Pt 7AA, and in particular s 473DD(b)(ii), of the Migration Act, does not permit: BTW17 at [78(c)] per Mortimer and Jackson JJ. In these circumstances, the Second Authority Decision was affected by jurisdictional error.
Conclusion and Orders
The Court has concluded that the Second Authority Decision was affected by jurisdictional error for the reasons set out at [19]-[29] above. It follows that prerogative relief ought to be granted by way of a writ of certiorari quashing the Second Authority Decision, and a writ of mandamus requiring the Authority to re-determine the matter according to law.
There will also be an order that the name of the Minister be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
The Court will hear the parties as to costs.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 10 February 2023
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