CYM16 v Minister for Immigration
[2019] FCCA 369
•19 February 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CYM16 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 369 |
| Catchwords: MIGRATION – Application for remedies under s.476 of the Migration Act 1958 (Cth) (Act) in relation to decision made by the Immigration Assessment Authority (Authority) affirming decision of a delegate not to grant Safe Haven Enterprise visa – whether Authority considered applicant’s claims – whether Authority made any jurisdictional error by concluding that the requirement under s.473DD(b) of the Act was not satisfied in circumstances where the Authority made no finding about whether s.473DD(a) of the Act was satisfied – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.5, 5H, 36(2)(aa), 65, 473DC, 473DD, 473DE |
| Cases cited: AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111 COE16 v Minister for Immigration and Border Protection [2019] FCCA 246 CQW17 v Minister for Immigration and Border Protection [2017] FCCA 2378 Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110 Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 VZ16 v Minister for Immigration and Border Protection [2017] FCA 958 |
| Applicant: | CYM16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 2761 of 2016 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 7 February 2018 |
| Date of Last Submission: | 7 February 2018 |
| Delivered at: | Sydney |
| Delivered on: | 19 February 2019 |
REPRESENTATION
| Applicant in person assisted by an interpreter |
| Counsel for the First Respondent: | Mr T Reilly |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2761 of 2016
| CYM16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, a citizen of Sri Lanka, seeks judicial review of the decision of the second respondent (Authority) affirming a decision of a delegate of the first respondent (Minister) not to grant the applicant a Safe Haven Enterprise (Class XE Subclass 790) visa (SHEV).
At the hearing before me counsel for the Minister submitted that the Authority approached s.473DD of the Migration Act 1958 (Cth)(Act) in the same manner as the Authority had approached that section in CQW17 v Minister for Immigration and Border Protection,[1] where Judge Cameron found that the Authority’s approach resulted in its making a jurisdictional error. Counsel for the Minister informed me that the Minister had appealed the orders made in CQW17; and counsel for the Minister accepted that if the Federal Court were to endorse “the entirety of Judge Cameron’s reasons, then that would be a jurisdictional error in this case too”.[2] I heard the matter and reserved judgment.
[1] [2017] FCCA 2378
[2] T8.5
The appeal from the orders of Judge Cameron was heard by the Full Court of the Federal Court in Minister for Immigration and Border Protection v CQW17.[3] The Minister’s made out his grounds of appeal, but on a narrower basis than that contended by the Minister. The appeal, however, was dismissed because the Full Court upheld a notice of contention on which the respondent had relied. I have received no submissions from the Minister about the relevance of the Full Court’s judgment in CQW17. I will, nevertheless, consider the grounds on which the Full Court upheld the Minister’s appeal against Judge Cameron’s orders for the purpose of determining whether the Authority made any error in its construction or application of s.473DD of the Act.
[3] [2018] FCAFC 110
Claims for protection
The applicant stated his claims for protection in a statement that accompanied his application for a SHEV, and may be summarised as follows:[4]
a)The applicant is Tamil and a Hindu.
b)The applicant worked in Saudi Arabia from around 1986 to around 1991 because he wanted to escape the danger in Sri Lanka “at the time”.
c)In 1991, a few months after he returned to Sri Lanka, while the applicant was travelling to meet a friend he was stopped by two members of the Sri Lankan Army (SLA), interrogated about where he was going, and accused of being a member of Liberation Tigers of Tamil Eelam (LTTE). The applicant was forced to go to a SLA camp where the applicant was further interrogated, beaten, tortured, and detained for fifteen days. The applicant was then taken to another prison and held “without any charges or convictions”. For about one year the applicant was detained in different SLA camps until he was released to the Gram Seveka officer who took the applicant home.
d)From about 1994 to May 2012 the applicant owned a grocery shop that was near a SLA camp. The applicant was constantly approached by members of the SLA and the Criminal Investigation Department (CID) who took items from the applicant’s store without paying. Whenever the applicant requested payment he was verbally abused and harmed. The applicant became afraid to request payment, and this impacted on the applicant’s business and livelihood and the livelihood of his family.
e)In about May 2012 two CID members who were armed with pistols came to the applicant’s store. The applicant had seen these people in his store previously and had allowed them to take products from the applicant’s store without paying. The applicant informed them that their account with the applicant at his store was high and they promised to pay their loans. The next day the same two CID members came to the applicant’s store to purchase some goods, but when the applicant asked them to settle their account, the two CID members verbally abused the applicant stating that “[y]ou can give money and support to the LTTE but why can’t you give this to us”. The applicant was then dragged out of his store, beaten and threatened by the two CID members, and was told words to the effect, “[c]ome to our camp this evening. We will cut you to pieces”.
f)The applicant did not go to the camp that evening and he did not return to his shop or his home for fear of being found by the CID. The applicant instead maintained a low profile and stayed with his friend until departing Sri Lanka for Australia.
[4] CB72-75
During his interview with the delegate the applicant further claimed that he was contributing money and groceries from his shop to the LTTE and to the Karuna group, and that his wife continued to do so for two years after the applicant left Sri Lanka.[5]
[5] CB108, [34]
Delegate’s reasons
The delegate, who made his decision on 27 July 2016, found the applicant was credible in relation to some of his claims, such as his family education and employment. The delegate, however, had significant concerns regarding his central claims about the harms he fears from the Sri Lankan authorities, and found the applicant embellished and exaggerated his claims to support his application for protection. The delegate, therefore, did not accept the applicant was beaten by the CID during May 2012, or that the applicant was asked to report to the army camp in May 2012. The delegate then assessed the applicant’s claims based on his being a Tamil, a Hindu, and a failed asylum seeker, but was not satisfied Australia owed the applicant protection obligations.
Submissions to Authority
On 25 August 2016, after the matter had been referred to the Authority, the applicant provided to the Authority a document titled “Reasons why I disagree with the decision of the Department of Immigration” (IAA Submissions).[6] That document contained an extract from what appears to be a report titled “Preliminary Observations of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment” (New Information). The extract states that the report is dated 7 May 2016. The New Information expressed an opinion that “torture is a common practice carried out in relation to regular criminal investigations in a large majority of cases by the Criminal Investigation Department (CID) of the police”.[7]
[6] CB126-129
[7] CB129
Authority’s decision
At the beginning of its reasons the Authority referred to the IAA Submission, and to the inclusion in the IAA Submissions of “new information from a report dated 7 May 2016 titled Preliminary Observations of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment regarding torture and ill treatment of detainees in Sri Lanka by the CID”.[8] The Authority then said the following:
The new information pre-dates the delegate’s decision. The applicant did not provide any explanation as to why the new information was not and could not have been provided to the delegate, or why it may be regarded as credible personal information that was not known, or had it been known may have affected the consideration of the applicant’s claims. As a result I am not satisfied in relation to the matters set out in s.473DD(b) of the Act and have not considered the new information in my assessment.
[8] CB136, [4]
The Authority then considered the applicant’s factual claims. The Authority did not accept the applicant was detained by the SLA in 1991 following his return from Saudi Arabia. The IAA found there to be discrepancies in the applicant’s account about the duration of his detention;[9] and having concluded it was not satisfied the applicant had been detained by the SLA the Authority was not satisfied the applicant had been tortured by the SLA.[10] The Authority accepted the applicant operated a grocery store in Batticaloa in Sri Lanka’s Eastern Province, and that he would have encountered the LTTE and may have been forced to contribute money and groceries from his store. Relying on country information, however, the IAA did not accept that this continued to occur in 2010 and 2012 because the LTTE was a spent force by May 2009 when the Sri Lankan government announced military victory over the LTTE and complete territorial control over Sri Lanka.[11]
[9] CB137, [7]
[10] CB137, [9]
[11] CB137-138, [11]
Next, the Authority considered the applicant’s claims based on facts the Authority accepted. First it considered whether the applicant was a “refugee” within the meaning of s.5H(1) of the Act.
a)The Authority was not satisfied the applicant had a well-founded fear of persecution because of his Tamil ethnicity, or because he might be imputed with holding a pro LTTE political opinion. The Authority relied on the current guidelines on Sri Lanka published by the United Nations High Commissioner for Refugees which identified different classes of profiles of persons who might be at risk, finding that the applicant did not hold any of those profiles; and also on information contained in a report by the Department of Foreign Affairs and Trade (DFAT) to the effect that high level and low level members of the LTTE would attract the attention of the authorities, but noting that the applicant confirmed that he had never been a member of the LTTE. The Authority also relied on the applicant’s not having attracted the attention of the Authorities because of the grocery stores contributions he may have been required to make to the LTTE.
b)The Authority was also not satisfied the applicant had a well-founded fear of persecution because he would be a failed asylum seeker. That is so even though the Authority accepted that, on his return, the applicant is likely to be charged under the Immigrants and Emigrants Act 1949 (IE Act) and that he would be detained for a relatively short period immediately on his return, and that the applicant would be fined.
For these reasons, the Authority was not satisfied the applicant was a ‘refugee” and, for that reason, the applicant did not satisfy the criterion for the granting of a SHEV provided for by s.36(2)(a) of the Act.
Finally, the Authority considered whether the applicant satisfied the complementary protection criterion provided for by s.36(2)(aa) of the Act. Relying substantially on the matters on which it relied for concluding the applicant was not a “refugee” within the meaning of s.5H(1) of the Act, the Authority concluded there are no substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country there is a real risk the applicant will suffer significant harm.
Grounds of application
The applicant’s application contains the following grounds:
The Internal Assessment Authority (IAA) erred in law, with error being a jurisdictional error, in that it failed to consider crucial my claim for protection.
When the IAA affirmed the decision not to grant a protection visa for me it erred in law. The IAA did not invite me including for a hearing/invitation to comment on or respond to the adverse information in which it relied to refuse my protection visa application. The IAA must have invited me to provide my comments in writing and/or to appear before the IAA to give evidence and present arguments relating to the issues raised and relied to refuse my protection visa in relation to my referred application with the IAA.
The IAA declined to exercise its jurisdiction in my case. I need a new IAA hearing/invitation (natural justice) to give my case again with new evidence.
The IAA has not considered at all the complementary protection available to me in Australia.
I will provide the details of these grounds and if I find any other grounds of review when I file my Amended Application.
In response to my asking the applicant, who is not legally represented, whether he wished to make any submissions in support of his application, the applicant said he wanted to say nothing. During the hearing, however, I informed the applicant of what counsel for the Minister said about Judge Cameron’s judgment in CQW17. I arranged for a copy of his Honour’s reasons for judgment to be given to the applicant during the hearing. I informed the applicant there was an appeal against that judgment and that it was likely that the applicant would receive a communication either from the Minister or from the Court about the outcome of that appeal.
As I have already noted, the Full Federal Court upheld the Minister’s challenged to Judge Cameron’s orders, but I am unaware whether the Minister has written to the applicant. As I will shortly discuss, I am of the opinion that the judgment of the Full Federal Court in CQW17 eliminates as a possibility the availability of the reasoning of Judge Cameron in CQW17 as a ground or reason for setting aside of the Authority’s decision in the case before me. For that reason I do not consider it is necessary for me to invite submissions on the relevance of the Full Federal Court’s judgment in CQW17.
In the remainder of these reasons I will consider the grounds set out in the application and, after I set out s.473DD of the Act, and some principles that have been decided in relation to that provision, the judgment in CQW17.
Grounds stated in application
The grounds stated in the application make a number of claims. The first is that the Authority failed to consider the applicant’s claims for protection or, at least, a crucial aspect of the applicant’s claims for protection. This part of the ground, however, says nothing more. My summary of the Authority’s reasons indicates the Authority did consider the applicant’s claims. It first considered the factual elements of the applicant’s particular claims and for reasons which it gave did not accept those elements of his claims that asserted detention by the SLA or beatings at the hands of the SLA. The Authority then assessed the Applicant’s claims on the basis of facts the Authority did accept and, again for reasons that it gave, concluded it was not satisfied the applicant satisfied the criteria for the granting of a SHEV. There is nothing in the material before me that suggests the Authority did not consider the applicant’s claims or any essential element of those claims.
Second the grounds claim the Authority erred in law by not inviting the applicant to a hearing or otherwise to comment or respond to adverse information on which the Authority relied in deciding to refuse the applicant a SHEV. The ground does not identify, however, the adverse information on which it is said the Authority relied and which the Authority ought to have provided to the applicant for his comments. Further, the ground does not disclose the grounds on which the Authority could have come under an obligation to invite the applicant to a hearing or otherwise invite the applicant to comment on information the Authority proposed to consider. Thus, there is nothing to suggest the Authority relied on any “new information” such as to trigger the obligation provided for by s.473DE of the Act.
Third, the ground claims the Authority declined to exercise its jurisdiction in relation to the applicant’s case, and that the applicant needs a new invitation or hearing to present his case with new evidence. The Authority did exercise jurisdiction in relation to the applicant’s case by considering the applicant’s claims and deciding it on the basis of the reasons it has given. Further, that the applicant proposes to provide further information to the Authority is no ground for setting aside the Authority’s decision.
Fourth, the applicant claims the Authority did not consider the applicant’s claims based on complementary protection. I do not accept that claim. The Tribunal did consider the applicant’s claims against the complementary protection criterion provided for by s.36(2)(aa) of the Act.[12]
Construction of s.473DD[13]
[12] CB142-144, [35]-[43]
[13] I reproduce here much of what I discussed in COE16 v Minister for Immigration and Border Protection [2019] FCCA 246
Section 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 expression “new information” is defined in s.473DC(1) of the Act as any document or information that “were not before the Minister when the Minister made the decision under section 65” and “the Authority considers may be relevant”.
Section 473DD of the Act has been considered by the Full Federal Court on a number of occasions, including in Minister for Immigration and Border Protection v CQW17.[14] The effect of what the Full Federal Court said in CQW17 is that before the Authority can consider “new information” it must be satisfied of the matters stated in both s.473DD(a) and of either one of s.473DD(b)(i) or s.473DD(b)(ii) of the Act.[15] In other words, the requirements of s.473DD(a) and either one of s.473DD(b)(i) or s.473DD(b)(ii) of the Act are cumulative.
[14] [2018] FCAFC 110
[15] See also the judgment of Gageler, Keane, and Nettle JJ in Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 at [31]: “Cumulatively upon the precondition set out in s 473DD(a) . . . s 473DD(b) sets out a further precondition that must also be met before the Authority can consider new information that is given to it, or proposed to be given to it, by the referred applicant. In respect of new information within that category, the Authority must be satisfied of one or other of the circumstances set out in s 473DD(b)(i) and (ii).”
Paragraph (a) of s.473DD requires that the Authority be satisfied there are “exceptional circumstances to justify considering the new information”. The meaning of “exceptional circumstances” in the context of s.473DD was considered by Gageler, Keane, and Nettle JJ in Plaintiff M174/2016 v Minister for Immigration and Border Protection:[16]
Quite what will amount to exceptional circumstances is inherently incapable of exhaustive statement. The word “exceptional”, in such a context, is not a term of art but “an ordinary, familiar English adjective”: “[t]o be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered”. Cumulatively upon the precondition set out in s 473DD(a) that the Authority must be satisfied that there are exceptional circumstances to justify considering new information, s 473DD(b) sets out a further precondition that must also be met before the Authority can consider new information that is given to it, or proposed to be given to it, by the referred applicant. In respect of new information within that category, the Authority must be satisfied of one or other of the circumstances set out in s 473DD(b)(i) and (ii).
[16] [2018] HCA 16 at [30] and [31] (footnote omitted)
Then there is s.473DD(b)(i) of the Act which requires that the information “was not, and could not have been, provided to the Minister before the Minister made the decision under section 65”. That paragraph suggests it applies to information that exists at the time the Minister makes a decision under s.65 of the Act, whether or not an applicant was aware of the existence of the information.
Next, there is s.473DD(b)(ii) of the Act which requires that the information 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 expression “credible personal information” is not defined in the Act. Subsection 5(1) of the Act, however, provides that “personal information” has the same meaning as in the Privacy Act 1988 (Cth). Section 6 of that Act defines “personal information” as “information or an opinion about an identified individual, or an individual who is reasonably identifiable . . . whether the information or opinion is true or not”, and “whether the information or opinion is recorded in a material form or not”.
In Plaintiff M174/2016 Gageler, Keane, and Nettle JJ proceeded on the footing that “personal information” as defined in s.5(1) of the Act was the meaning to be assigned to “personal information” contained in s.473DD(b)(ii).[17] After considering the meaning of “not previously known”, their Honours concluded as follows:[18]
Accordingly, all that the Authority needs to be satisfied of in order to meet the precondition to its consideration of new information given, or proposed to be given, by the referred applicant set out in s 473DD(b)(ii) is that: (1) the information is credible information about an identified individual, or an individual who is reasonably identifiable; (2) the information was not previously known by either the Minister or the referred applicant; and (3) had the information been known by either the Minister or the referred applicant, the information may have affected the consideration of the referred applicant's claims.
[17] [2018] HCA 16 at [33]: “In that provision, the term “personal information” takes its defined meaning within the Act of “information or an opinion about an identified individual, or an individual who is reasonably identifiable”.
[18] [2018] HCA 16 at [34]
The next matter to note is that although paragraphs (a) and (b) of s.473DD are cumulative that does not imply the Authority must consider them sequentially – first paragraph (a) then either one of paragraphs (b)(i) or (b)(ii). That is because matters that are relevant to assessing whether paragraph (a) is satisfied may also be relevant to assessing whether either of paragraphs (b)(i) or (b)(ii) is satisfied, and matters that may be relevant to assessing whether either of paragraph (b)(i) or (b)(ii) is satisfied may be relevant to assessing whether (a) is satisfied. This point was made by White J in BVZ16[19] in a passage that has been approved by the Full Federal Court on four occasions:[20]
The requirements of subparas (a) and (b) are cumulative but may nevertheless overlap to some extent. The Authority’s satisfaction that the new information could not have been provided to the Minister at the time of the s 65 decision (subpara (b)(i)) may contribute to its satisfaction that there are exceptional circumstances to justify considering the new information. So also may the Authority’s satisfaction that the new information is credible personal information which had not previously been known (subpara (b)(ii)). Accordingly, one would expect the IAA to consider the subpara (b) matters when considering in a given case whether the circumstances are exceptional. Obviously enough, however, the matters which may contribute to a finding that the circumstances in a particular case are exceptional may extend beyond those specified in subparas (b)(i) and (ii) and it seems improbable that the Authority could be satisfied, by reference to one matter only, that an applicant’s circumstances are not exceptional.
[19] [2017] FCA 958 at [9]
[20] This passage was set out with approval by the Full Federal Court in CQW17 at [48] after which the Court noted: “His Honour’s view was affirmed in BBS16 at [102]-[103] (Kenny, Tracey and Griffiths JJ) and cited with apparent approval by the Full Court in CHF16 at [17]-[18] (Gilmour, Robertson and Kerr JJ) and DYS16 at [31]-[33] (Tracey, Murphy and Kerr JJ).”
In BVZ16 White J held that the Authority had confined “its consideration of whether there were exceptional circumstances to the evaluation of the” review applicant’s “explanation for not having provided the information earlier”; and by doing so the Authority “had applied an unduly narrow interpretation of the term “exceptional circumstances””.[21]
[21] [2017] FCA 958 at [46]
Also relevant is the judgment of the Full Federal Court’s in AQU17 v Minister for Immigration and Border Protection.[22] In that case it was submitted the Authority had taken too narrow a view of what constitutes exceptional circumstances. The Full Federal Court noted, however, that the review applicant “was unable to point to any fact or matter materially bearing upon the Authority’s consideration as to whether it was satisfied of the requirement under s 473DD(a) that was not taken into account and, had it been taken into account, would have materially borne upon its consideration”.[23] That implies that before it can be found the Authority has taken too narrow a view of what constitutes exceptional circumstances, it is necessary to identify some fact or matter materially bearing upon the Authority’s consideration as to whether it was satisfied of the requirement under s 473DD(a) that was not taken into account and, had it been taken into account, would have materially borne upon its consideration
[22] [2018] FCAFC 111
[23] [2018] FCAFC 111, at [17]
Relevance of CQW17
In CQW17 the visa-applicant provided two items of new information to the Authority, one relating to a raid on the visa-applicant’s father’s house in Iran (which the Full Federal Court called “New Raid Information”), and one relating to the applicant’s not being a practising Muslim (which the Full Federal Court called “New Religious Information”). As for the New Religious Information the Authority referred to the visa-applicant’s not having provided any information about why that information had not or could not have been provided to the delegate, and concluded it was not satisfied the information could not have been provided to the delegate before the decision (being the matter provided for by s.473DD(b)(ii) of the Act), or that it was credible personal information which was not previously known and, had it been known, may have affected the consideration of the visa-applicant’s claims (being the matter provided for by s.473DD(b)(ii)). As to the New Raid Information the Authority accepted the information could not have been provided to the delegate (thus satisfying the matter provided for by s.473DD(b)(i)), but the Authority concluded without giving any reasons that it was not satisfied there are exceptional circumstances to justify the consideration of the New Raid Information (being the matter provided for).[24]
[24] The Authority’s reasons are contained in paragraphs 5 and 6 of its reasons for decision that are reproduced at CQW17 v Minister for Immigration and Border Protection [2017] FCCA 2378, [15]
Judge Cameron found that in relation to the New Religious Information the Authority did not consider whether there were exceptional circumstances because it had concluded that the matter provided for by s.473DD(b) of the Act had not been satisfied. His Honour found the Authority’s failure to do so was a jurisdictional error.
Before the Full Federal Court the Minister submitted that Judge Cameron made an appealable error in holding that, in addition to having considered, and made findings on, the requirements of s.473DD(b) of the Act in relation to the New Religious Information, the Authority was also required to consider and make findings on the requirements of s.473DD(a) of the Act. The Minister further submitted that Judge Cameron ought to have found that the Authority was empowered to exclude that information from consideration, solely on the basis of its findings in relation to s.477DD(b).[25]
[25] Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110, [62]
The Full Federal Court found that Judge Cameron had proceeded on the incorrect view that the decision in BVZ16 bound him to conclude that the Authority’s failure to consider s.473DD(a) constituted a jurisdictional error.[26] The Full Federal Court said:[27]
. . . . The primary judge was in error to consider that BVZ16 dictated a finding of jurisdictional error, particularly in circumstances where he was addressing whether consideration of subpara (a) could affect consideration of subpara (b) rather than the other way around.
Whether the Authority’s consideration of the existence of exceptional circumstances under subpara (a) is relevant to its satisfaction as to the matters in subpara (b)(ii) will depend upon the facts of the case. Although CQW17 argues that the Authority’s failure to consider subpara (a) means it did not give proper consideration to the requirement under subpara (b)(ii), he did not take the Court to anything that indicated: (i) what he asserted the exceptional circumstances to be; or (ii) how consideration of such asserted exceptional circumstances might have informed the Authority’s consideration to show that the new information is credible personal information which was which was not previously known, and had it been known, may have affected consideration of CQW17’s claims.
We are not persuaded this is a case where consideration of whether exceptional circumstances existed could have affected the Authority’s decision as to subpara (b)(ii), and we do not consider that the Authority’s failure to consider subpara (a) amounted to jurisdictional error. We respectfully consider the primary judge erred in that regard.
[26] Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110, [68]
[27] Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110, [71]-[73]
I now turn to the circumstances of the Authority’s treatment of the New Information in the case before me. The Authority’s reasons for deciding not to consider the New Information under s.473DD is not materially distinguishable from the Authority’s reasons in CQW17 for its decision not to consider the New Religious Information: the Authority in the case before me only expressly considered the application of s.473DD(b) of the Act and, having found it did not apply, concluded it would not consider the New Information without expressly considering whether there were exceptional circumstances to justify considering the New information.
I find that the Authority did not consider whether there were any exceptional circumstances to justify considering the New Information. That by itself, however, does not necessarily mean it made any jurisdictional error. Paragraphs (a) and (b) of s.473DD must both be satisfied before the Authority can consider new information so that if either (a) or (b) is not satisfied then, under s.473DD, the Authority is prohibited from considering new information. The question, however, is whether in the circumstances of this case the Authority’s considering whether there were exceptional circumstances could have gave affected the Authority’s considering of whether s.473DD(b)(i) or s.473DD(b)(ii) of the Act were satisfied. In my opinion, that question must be answered in the negative.
First, the New Information, at least in the circumstances of the case before me, was not reasonably open to being characterised as information that could not have been provided to the delegate before he made his decision; and there is nothing before the Authority that it could reasonably have considered to constitute exceptional circumstances but which it could also have reasonably considered to be relevant to determining whether the New Information could not have been provided to the delegate before he made his decision. The delegate made his decision on 27 July 2016 but the New Information is dated 7 May 2016. Second, the New Information, again in the circumstances of the case before me, was not reasonably open to being characterised as “personal information”. That is, it was not reasonably open to the Authority to characterise the New Information as “information or an opinion about an identified individual, or an individual who is reasonably identifiable”; and, again, there is nothing before the Authority that it could reasonably have considered to constitute exceptional circumstances but which it could also have reasonably considered to be relevant to determining whether the New Information constituted credible personal information.
In these circumstances, it is not reasonably arguable that the Authority made any jurisdictional error by concluding, for the reasons it did, that the New Information did not satisfy s.473DD(b) of the Act and, for that reason, it could not consider it. Thus, the judgment of the Full Federal Court in CQW17 removes Judge Cameron’s reasoning in CQW17 as a ground or an arguable ground for concluding the Authority in the case before me made a jurisdictional error.
Conclusion and disposition
The grounds stated in the application do not disclose any jurisdictional error by the Authority; and the Authority made no jurisdictional error in concluding, for the reasons it did, that the New Information did not satisfy s.473DD(b) of the Act. I propose, therefore, to order that the application be dismissed. I will deal with the question of costs at the time I propose my order.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 19 February 2019
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