DDG17 v Minister for Home Affairs

[2018] FCCA 3538

FEDERAL CIRCUIT COURT OF AUSTRALIA

DDG17 v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 3538

Catchwords:
MIGRATION – Protection visa application – review of decision of Immigration Assessment Authority – where applicant abandons sole ground of review at hearing – no jurisdictional error – application dismissed.

PRACTICE & PROCEDURE – Leave sought to amend application to include a ground concerning the way in which the Authority considered “exceptional circumstances” – inadequate explanation for the delay – insufficient merit in amended ground – leave refused.

Legislation:

Migration Act 1958 (Cth), ss.473DC, 473DD, 473EA, pt.7AA

Cases cited:

AQU17 v Minister for Immigration & Border Protection [2018] FCAFC 111
BVZ16 v Minister for Immigration & Border Protection (2017) 254 FCR 221
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Plaintiff M174/2016 v Minister for Immigration & Border Protection (2018) 92 ALJR 481

Applicant: DDG17

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2221 of 2017

Judgment of: Judge Smith

Hearing date: 8 November 2018

Date of Last Submission: 8 November 2018

Delivered at: Sydney

Delivered on: 8 November 2018

REPRESENTATION

Solicitors for the Applicant: Mr M Jones, Parish Patience Immigration Lawyers

Solicitors for the Respondents: Mr A Fisher, HWL Ebsworth Lawyers

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $7,328.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2221 of 2017

DDG17

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for review of a decision of the Immigration Assessment Authority dated 26 June 2017.  The Authority affirmed a decision of a delegate of the Minister to refuse to grant the applicant a protection visa.

2. The applicant is a citizen of Sri Lanka who arrived in Australia on 27 August 2012 and lodged an application for a protection visa on 24 February 2016. The applicant’s claims for protection are set out in summary at [1] of the Authority’s reasons which I will adopt for the purposes of this application:

   1. The referred applicant (the applicant) claims to be a Catholic Tamil male from the Mullaitivu District in the Northern Province of Sri Lanka. He fears returning to Sri Lanka because he would be at risk of being harmed by the Sri Lankan authorities, including the CID and paramilitary groups, for suspicion of being a member of the Liberation Tigers of Tamil Eelam (LTTE) on the basis of his ethnicity, area of origin and for having spent approximately ten months in a rehabilitation centre. He also fears harm because he departed the country illegally, has not complied with reporting conditions and has attended diaspora memorial events. On 27 July 2013, he made an invalid application for a Protection (subclass 866) visa. On 24 February 2016, he lodged an application for a Safe Haven Enterprise (subclass 790) visa.

   ...

3. On 15 November 2016 a delegate of the Minister made a decision to refuse to grant the applicant a protection visa and the matter was referred to the Authority for review pursuant to pt.7AA of the Migration Act 1958 (Cth).

4. On 23 January 2017 the applicant’s migration agent sent to the Authority, for the purposes of review, certain information which had not been before the delegate.  That information included a news article and the translation of it into English concerning the arrest of a former combatant.  In the email to which the document was attached, the agent stated[1]:

   …

   This country information was not before the delegate, it was published after the delegate’s decision was made and is relevant for the consideration of the review applicant’s claims as the review applicant is also an ex detainee who had undergone rehabilitation.

   It is submitted that there are exceptional circumstances to consider this new information sent to the IAA in the form of country information due to the relevance and significance of the material that is submitted herewith.

   ...

   [1] Exhibit A, p.442.

5. The Authority made its decision on 26 June 2017.  Given the nature of the grounds in the application, it is not necessary to set out the reasons of the Authority other than in respect of the information to which I have just referred and what the Authority said at [13]:

   13. On 23 January 2017, under cover of an email from the applicant’s former representative, the applicant furnished a copy of a news article, dated 22 January 2017, about recent targeting of former combatants who had undertaken rehabilitation. I accept this is new information. It post-dates the delegate’s decision, and as such I am satisfied that the article was not, and could not have been, provided to the delegate prior to decision. As the article does not appear to relate specifically to the applicant’s personal circumstances, I am not satisfied there are exceptional circumstances to justify considering this information.

6. In the applicant’s original application there was one ground of review that has now been abandoned in light of authority which it is accepted is binding on this Court.  However, in his written submissions the applicant seeks leave to raise a further ground related to the way in which the Authority dealt with the information sent to it by the applicant’s agent on 23 January 2017.  The applicant accepts that if that leave is refused, then the application must be dismissed.

7. The Court made orders on 4 October 2017 including orders allowing the applicant to file an amended application by 18 January 2018.  Subsequently, there has been no amended application filed. On 21 February 2018 the matter was set down for hearing on 8 November 2018. Given the ground in the application, the matter was listed for hearing at the same time as a matter that also raised the same ground in order that the Court may save time in dealing with the same issue. That listing appears to have been wasted. The solicitor for the applicant explains that the new ground came to light when the matter was being reconsidered for the purpose of the hearing.  That may be accepted, however, I do not accept that that presents a reasonable basis for the delay in bringing the application.

8. Essentially, the principles upon which the application is based were first exposed by White J in the decision of BVZ16 v Minister for Immigration & Border Protection (2017) 254 FCR 221, which was handed down on 18 August 2017. The issue has had many hearings both at first instance and on appeal since that time, thus it would be surprising that somebody of the competence and experience of the applicant’s solicitor would not have been aware of that issue.

9. In any event, the solicitor for the applicant submits that regardless of the delay, leave ought to be granted because the Minister has been able to deal with the point and also because the point has sufficient merit.  I accept the fact that the Minister has been able to deal with the point is in favour of the leave being granted.  In light of that, I will turn to the merits of the proposed new ground.

10. In essence, the ground is that in [13] of its decision the Authority took too narrow a view of what amounts to “exceptional circumstances”.  In particular, it is argued that the reasoning of the Authority in that respect is evident from the last sentence in that the Authority considered that there would only be exceptional circumstances if it were satisfied that the matters in sub-s.473DD(b)(ii) of the Act were met. 

11. Before dealing with that point, I note that principles concerning the operation of s.473DD as related to this ground have been, in my view, accurately summarised in the first respondent’s submissions at [13]:

    13. The authorities establish the following presently relevant propositions in relation to s 473DD:

    (a) First, the requirements of s 473DD – found in paragraphs (a) and (b) – are cumulative. As the Full Federal Court said recently, that is “plain as a matter of statutory interpretation” (Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110, [36]). As such, the IAA is “prohibited from considering new information unless it is satisfied of the matters in subparas (a) and (b)” (CQW17 [2018] FCAFC 110, [36] (emphasis in original); see also BRA16 v Minister for Immigration and Border Protection [2018] FCA 127 at [26]; Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16, [31]).

    (b) Second, circumstances are “exceptional” if they may “reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon” (AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111, [13] citing BVZ16 v Minister for Immigration and Border Protection (2017) 254 FCR 221 and Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16, [30]).

    (c) Third, the IAA falls into jurisdictional error if it adopts and applies an unduly narrow construction of “exceptional circumstances” by confining its consideration of whether there were exceptional circumstances to the adequacy of the applicant’s explanation for not providing information earlier (BVZ16 v Minister for Immigration and Border Protection (2017) 254 FCR 221, [47]; Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176, [112]; CHF16 v Minister for Immigration and Border Protection [2017] FCAFC 192, [44]).

    (d) Fourth, the matters prescribed by s 473DD(b) may inform the IAA’s consideration of whether exceptional circumstances exist to justify consideration of new information BVZ16 v Minister for Immigration and Border Protection (2017) 254 FCR 221, [9]; Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176, [102]).

    (e) Fifth, to make good a contention that the IAA took too narrow a view of what constitutes exceptional circumstances, an applicant must point to 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 (AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111, [17]).

    (Without alteration)

12. In addition to the paragraph, the solicitor for the applicant also relied upon [14] of the decision of the Full Court of the Federal Court of Australia in AQU17 v Minister for Immigration & Border Protection [2018] FCAFC 111:

    As the plurality in Plaintiff M174 made clear, what will amount to exceptional circumstances is inherently incapable of exhaustive statement. Each case will be different to every other case and must be treated on its merits and the matters for the Authority to take into consideration must necessarily vary from case to case. It is a misconception that the factors in s 473DD(b)(i) and (ii) of the Act must, in all cases, be considered by the Authority in deciding whether “exceptional circumstances” exist as s 473DD(b) does not codify what constitutes “exceptional circumstances”. Rather, s 473DD(b) sets out the further preconditions that must also be met before the Authority can consider the new information cumulatively upon the precondition set out in s 473DD(a): Plaintiff M174 at [31]. As BVZ16, BBS16 and CHF16 illustrate, in many cases consideration of the factors in ss 473DD(b)(i) and/or (ii) may assist the Authority in deciding whether or not it is satisfied that exceptional circumstances exist but whether those factors will have bearing upon that decision will depend on the particular case.

13. The difficulty with the argument, in my view, is that it takes an overly narrow view of the reasons given in [13]. Taking into account not only the nature of the Authority, but the fact that the Authority had no obligation under s.473EA(3) of the Act to give any reasons in respect of its consideration of s.473DD, no narrow reading of [13], or in fact, its other dealing with s.473DD, is appropriate. What must be done is to consider what is said there in the context overall of the reasons, and in particular, the immediate context of the whole of [13]. Once that is done, several matters may be noted.

14. First, by the Authority’s acceptance that the information about former combatants was new information, it must be taken to have considered that that information may be relevant, otherwise it would not have amounted to new information within the meaning of sub-s.473DC(1)(b).

15. Secondly, the Authority notes that it accepted that the information post-dated the delegate’s decision and therefore was not and could not have been provided to the delegate prior to the decision. That appears to relate broadly to the consideration in s.473DD(b). The fact that the Authority accepted that proposition suggests, firstly, that it took that fact into account, and secondly, that it took it as a matter that was favourable to the applicant.

16. The fact that it referred to a matter that was referable at least to s.473DD(b), in particular sub-s.473DD(b)(i), does not, however, suggest that it was only addressing that issue at the time. The question of what it was addressing, in my view, is answered by its conclusion, namely, that there were no exceptional circumstances. That means that unlike the decision in BVZ16, at least in this respect, the Authority was not restricting itself to considering any one particular matter.  It was considering matters that included the matter in sub-s.473DD(b)(i).  That is the matter, as explained in a number of cases set out above and in particular AQU17 at [14] that may, depending on the circumstances, be relevant to the consideration of exceptional circumstances.

17. The next matter is the final sentence which commences with the word “as”.  Mr Jones, the solicitor for the applicant, relied heavily on that word as indicating that that was the only reason given by the Authority, and therefore the syllogism was that if, and only if, the matters in sub-s.473DD(b)(ii) were satisfied, then there would be exceptional circumstances. I do not accept that that is the case and placing such reliance on the word “as” is, as I have said, focusing too narrowly on a particular word without having regard to its context in contrast with the proper approach as described by the High Court of Australia in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 and numerous cases since.

18. What the Authority was explaining in the last sentence of [13] was that even though it had accepted that the new information post-dated the delegate and could not have been provided, there is no exceptional circumstances because it did not appear to relate specifically to the applicant’s personal circumstances. In other words, it was not satisfied, or it did not accept, the contention made by the applicant’s agent in the email of 23 January 2017. Once it came to that view it cannot be contested that it was open to the Authority that there were no exceptional circumstances given that the purpose of s.473DD is to act as a gateway to the consideration of new information for the purposes of making a decision in respect of a fast-track reviewable decision.

19. It would be highly unlikely, in my view that a matter which was unlikely to affect the outcome of the decision could amount to exceptional circumstances.  However, I do note in that respect as the High Court made clear in Plaintiff M174/2016 v Minister for Immigration & Border Protection (2018) 92 ALJR 481, those matters are inherently incapable of exhaustive statement. I find that the argument that is sought to be raised now is based solely on a reading of the Authority’s reasons in [13] which is not open on a proper approach to the reasons of an administrative decision-maker.

20. For those reasons, and given I have found that there is no reasonable basis for the delay in bringing the application to amend, and in spite of the absence of prejudice to the Minister, at least insofar he was able to deal with the point, I find that there are insufficient prospects of the ground to warrant the grant of leave and I refuse the grant of leave.

Conclusion

1. For those reasons, and given the concession I have noted above, and the abandonment of ground 1, the application must be dismissed. 

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date:       4 December 2018