DHJ16 v Minister for Immigration - [2019] FCCA 109

FEDERAL CIRCUIT COURT OF AUSTRALIA

DHJ16 v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 109

Catchwords:
MIGRATION – Application for a review of the decision of the Immigration Assessment Authority (IAA) – whether the IAA failed to exercise its jurisdiction by failing to consider new information – whether there was a stipulated page limit for the provision of “new information” to the IAA – whether the IAA adopted a “proper construction” of the Practice Direction pursuant to s.473FB – whether the IAA “misinterpreted and misapplied” the Practice Direction – whether such a “misconstruction” and misapplication” of the Practice Direction caused the IAA to fall into jurisdictional error pursuant to s.473DD – no jurisdictional error found – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.473CC, 473DC, 473DD, 473FB, 476

Cases cited:
Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163; (2005) 69 ALJR 873; (1995) 131 ALR 595
DGZ16 v Minister for Immigration and Border Protection & Anor [2018] FCAFC 12
Plaintiff M174/2016 v Minister for Immigration and Border Protection & Anor [2018] HCA 16; (2018) 92 ALJR 481; 353 ALR 600
Minister for Immigration and Border Protection v CLV16 [2018] FCAFC 80

Applicant:

DHJ16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 3042 of 2016

Judgment of:

Judge Nicholls

Hearing date:

3 July 2018

Date of Last Submission:

3 July 2018

Delivered at:

Sydney

Delivered on:

21 January 2019

REPRESENTATION

Counsel for the Applicant:

Mr G. Johnson

Solicitors for the Applicant:

Hunter Shafiz Lawyers

Counsel for the Respondents:

Mr H. Bevan

Solicitors for the Respondents:

HWL Ebsworth Lawyers

ORDERS

The application made on 4 November 2016 is dismissed.
The applicant pay the first respondent’s costs as agreed or assessed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3042 of 2016

DHJ16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 4 November 2016, seeking review of the decision of the Immigration Assessment Authority (“the IAA”), made on 7 October 2016 which affirmed the decision of the Minister’s delegate (“the delegate”) to refuse a Temporary Protection (subclass 785) visa to the applicant.
In evidence before the Court is a bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”).

Background

The following background is relevant. The applicant is a citizen of Pakistan who arrived in Australia on 23 September 2012 (CB 35, CB 95, and CB 292). The applicant applied for a protection visa which was received by the Minister’s department on 12 October 2015 (CB 9). He made his claims to protection in a written statement that was attached to the application for the protection visa (CB 268 to 272).
Through his migration agent, the applicant provided an initial submission to the IAA dated 18 September 2016 (CB 323 – CB 420) (“the First Submission”). By letter dated 21 September 2016, the IAA advised the applicant that it was returning the First Submission as it did not comply with Practice Direction 1 (“the Practice Direction”) issued by the President of the Administrative Appeals Tribunal. The IAA determined that the First Submission did not comply with the Practice Direction as it exceeded the “5 page length limit” (CB 438.6).
Nevertheless, the IAA noted that in the First Submission, the applicant requested that the IAA forbear from making a decision until the applicant had received access to documents through a freedom of information process. The IAA decided not to await the outcome of the freedom of information process as the IAA itself provided the documents sought by the applicant ([5] at CB 454).
The IAA also considered the applicant’s contention that that he had been denied procedural fairness by the delegate and sought to be invited to a hearing before the IAA ([6] at CB 454). The IAA noted that it had not had any further regard to the information in the First Submission ([7] at CB 455).
The IAA instead allowed the applicant to provide a revised “concise submission” in compliance with the Practice Direction (CB 438). On 4 October 2016, the applicant, again through his migration agent, provided a second submission to the IAA (“the Second Submission”).
The IAA noted that the Second Submission contained 45 links to country information that was not before the delegate, and was considered by the IAA to be new information. The IAA was not satisfied by reference to the explanations advanced by the applicant that there were exceptional circumstances justifying consideration of the country information links ([9] at CB 455). The IAA was not satisfied that it was required to invite the applicant to an interview ([10] at CB 455 to CB 456).

The Ground of Review

The applicant’s ground for review in the amended application is as follows:
“1. The Authority constructively failed to exercise its jurisdiction by rejecting or failing to take into account the contents of a letter dated 18 September 2016 sent to the Authority by the applicant’s migration agent.
Particulars
A) On 18 August 2016 the applicant’s matter was referred to the Authority: CB 311. Attached to the Acknowledgment of the Referral letter was a copy of the Practice Direction for Applicants, Representatives and Authorised Recipients: CB 319.
B) On 18 September 2016 the applicant’s migration agent sent to the Authority a 97 page letter contained submissions and additional information addressing ‘why internal relocation is not possible in our applicant’s case’.
C) On 21 September 2016 the Authority sent the applicant’s migration agent a letter by which it informed the agent that the Authority was returning the agent’s ‘submission’ dated 18 September 2016 on the basis that it failed to comply with the Practice Direction: CB 438. The Authority in its letter acknowledged that much of the agent’s submission is country information that was not before the Department.
D) On 4 October 2016 the applicant’s migration agent sent to the Authority a considerably shorter submission in the place of the earlier submission dated 18 September 2016.
E) In its decision, the Authority found that the submission dated 18 September 2016 did not comply with the Practice Direction, on the basis that it ‘exceeded the 5 page length limit’: [4]; CB 454. With the exception of minor matters referred to at [5] and [6] of its decision record, the Authority did not have regard to the submission dated 18 September 2016: [7]; CB 455.
F) The Authority was in error in rejecting or failing to take into account the content of the submission dated 18 September 2016 on the basis that it was non-compliant with the Practice Direction. Under the Practice Direction, a referred applicant may give the Authority three kinds of information:
i) A submission as to why the referred applicant disagrees with the decision of the Department, and as to any claim or matter presented to the Department by the referred applicant that was overlooked: para 20. There is a 5 page limit on submissions of this kind: para 21.
ii) New information: para 22. There is no stipulated page limit for the provision of new information to the Authority.
iii) An explanation, to accompany any new information given, as to why the information could not have been given to the Department before the decision was made, or as to why the information is credible personal information which was not previously known and may have affected of the referred applicant’s claims, had it been known: para 23. There is a 5 page limit on the explanation accompanying new information: para 24.
G) As the Authority acknowledged in its letter dated 21 September 2016, much of the submission dated 18 September 2016 was country information not before the Department. The Authority was in error in rejecting or not taking into account the 18 September 2016 (in particular the extracted country information that made up a significant portion of the document) by misunderstanding or misapplying the effect of the Practice Direction.”
[Errors in original]

Submissions to the Court

In both written and oral submissions before this Court, the applicant noted that there were three aspects of his claim.
The first aspect addresses the proper construction, and meaning, of the Practice Direction. The relevant parts of the Practice Direction are reproduced at [30] below.
The applicant argued that the Practice Direction should not be construed so as to impose a page limit upon the provision of new information. Paragraph 27 of his written submissions to the Court (dated 19 June 2018) is in the following terms:
“In relation to a ‘submission’ referred to in para 20 of the Practice Direction, the Practice Direction stipulates there is a 5 page limit on submissions of this kind: para 21. In relation to any explanation accompanying new information referred to in para 23 of the Practice Direction, a 5 page limit is also stipulated: para 24. To that extent, a submission to the Authority that was limited to five pages addressing the matters referred to in para 20 of the Practice Direction, and limited to an additional five pages in addressing the matters referred to in para 23 of the Practice Direction, would not of itself be non-compliant with the Practice Direction. By contrast to the matters set out in paras 20 and 23 there is no stipulated page limit for the provision of new information to the Authority.”
The second aspect of the applicant’s claim is that the IAA misinterpreted and misapplied the Practice Direction such as to cause it to reject the First Submission.
The applicant noted that the IAA recognised that the First Submission included new information in its letter dated 21 September 2016 (CB 438):
“Much of your submission is country information not before the Department of Immigration. It therefore is new information.”
The applicant also noted that the reason that the IAA returned the First Submission was that it “exceeded the 5 page length limit” (CB 438, [4] at CB 454).
This was argued to be a misinterpretation and misapplication of the Practice Direction at [30] of the applicant’s written submissions (dated 19 June 2018):
“…This is a misconstruction of the Practice Direction. As noted above, not only does the Practice Direction not impose a five page limit on submissions to the Authority in a general sense, but more particularly the Practice Direction does not impose a page limitation at all on new information.”
The third aspect of the applicant’s claim is that, having misinterpreted and misapplied the Practice Direction, the IAA fell into jurisdictional error.
The applicant acknowledged that, while the IAA had no duty to accept or request information pursuant to s.473DC(2) of the Act, it nevertheless had a duty to consider whether it could take into account new information presented to it by reference to prescribed matters in s.473DD of the Act. The IAA failed to perform this duty and therefore fell into jurisdictional error.
The Minister argued that there was no denial of procedural fairness by the IAA, and even if there had been, the applicant failed to demonstrate any “practical injustice” that gives rise to jurisdictional error.
First, the Minister highlighted that the IAA gave the applicant the opportunity to provide a revised submission in a more concise form. The applicant took this opportunity by way of the Second Submission.
The Minister then argued that, since the IAA considered the contents of the Second Submission at [4] to [10] (CB 454 – CB 456) of its decision record, the applicant was not denied procedural fairness.
Second, the Minister argued that the purpose of the Practice Direction is to encourage concise submissions, and therefore the applicant must demonstrate a practical injustice that arises out of the allegation of denial of procedural fairness.
The Minister’s written submissions at [9] are in the following terms:
“Posing the question rhetorically: what, precisely, is it that was material and significant in the first 97-page submission but which was not then incorporated by the applicant’s migration agent in the subsequent submission that was then allegedly either erroneously included in or excluded from consideration by the Authority in the conduct of the review under Pt 7AA? While the applicant deliberately eschews this task (see applicant’s submissions at paragraphs 34-35), there is nothing to suggest that the Authority failed to consider anything that had been advanced on behalf of the applicant in support of his claims to protection.”
The Minister reiterated this in oral submissions, and highlighted the fact that the applicant has failed to identify precisely the information that is said to be in the First Submission and was not in the Second Submission, which was either not new information, or was new information that satisfied s.473DD of the Act.
The Minister made reference to Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 to demonstrate that a necessary element of jurisdictional error is that the Tribunal’s purported exercise of its power has been affected. Therefore, the applicant’s failure to specify a practical injustice did not give rise to jurisdictional error.
In response to the Minister’s contention that there was no denial of procedural fairness, the applicant highlighted at the hearing that there were aspects of the First Submission that were not included in the Second Submission. Therefore, while the IAA gave consideration to the material in the Second Submission, it nevertheless denied the applicant procedural fairness by failing to consider matters that had not been included.
Further, in response to the Minister’s contention that there was no practical injustice, the applicant argued that the IAA failed to conduct an analysis of the prescribed matters in s.473DD of the Act and therefore deprived the applicant of his primary opportunity to put new information before the IAA. While the applicant acknowledged that much of the content in the First Submission may not have been material, to his claims he argued that there was material information that the IAA improperly excluded from its consideration.

The Relevant Parts of the Act

For current purposes the following sections of the Act are of note:
s 473CC – Review of decision
(1) The Immigration Assessment Authority must review a fast track reviewable decision referred to the Authority under section 473CA.
(2) The Immigration Assessment Authority may:
(a) affirm the fast track reviewable decision; or

(b) remit the decision for reconsideration in accordance with such directions or recommendations of the Authority as are permitted by regulation.

s 473DC - Getting new information
(1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:
(a) were not before the Minister when the Minister made the decision under section 65; and
(b) the Authority considers may be relevant.

(2) The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(3) Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a) in writing; or
(b) at an interview, whether conducted in person, by telephone or in any other way.

s 473DD – Considering new information in exceptional circumstances
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

(ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.

Consideration

The first aspect of the applicants ground relies on what he says is the proper construction, and understanding, of the Practice Direction made pursuant to s.473FB of the Act.
The Practice Direction is reproduced in the Court Book (CB 319 to CB 322). For current purposes the following is relevant:
“Submissions and new information
20. For the purposes of the review, you may provide a written submission on the following:
·why you disagree with the decision of the Department
·any claim or matter that you presented to the Department that was overlooked.
21. Any submission must be concise. It should identify and address the issues you want us to consider in our review. Your submission should be no longer than 5 pages and should be provided to us within 21 days of your case being referred to us by the Department. We may return longer submissions. If we return your submission we will give you a short deadline by which to provide a revised submission that complies with this direction. If you do not comply with that deadline we will make our decision without the benefit of your submissions.
22. We can only consider new information (information that was not before the Department) in very limited circumstances as set out in section 473DD of the Migration Act. We must be satisfied that there are exceptional circumstances to justify considering the new information provided by either you or the Department.
23. If you want to give us new information, you must also provide an explanation in writing as to why:
·the information could not have been given to the Department before the decision was made, or
·the information is credible personal information which was not previously known and may have affected consideration of your claims, had it been known.
24. Your explanation should be no longer than 5 pages and must accompany any new information you give to us.
In short, I understand the applicant’s submission here to be as follows. Both the matters set out at [20] and [23] of the Practice Direction are subject to a five page limitation. The applicant does not argue that the IAA did not comply with the Practice Direction in this regard.
However, the applicant argued there was no stipulated page limit for the provision of new information to the IAA (with reference to [22] at CB 321 of the Practice Direction).
In that light the applicant argued that the IAA did not have regard to the extracted country information in the First Submission which was some 92 pages in length. This was said to be confirmed by the IAA itself at [7] (CB 455) of its decision record:
“I have not had further regard to the information in the first IAA submission.”
For the sake of completeness, I note that there was no dispute that the IAA did have regard to the contents of the Second Submission.
The second aspect of the applicant’s argument was that the IAA “misapplied” the Practice Direction in relation to the First Submission.
The applicant directed attention to the IAA’s reasons for decision ([4] at CB 454) and the letter of 21 September 2016 (CB 438 – CB 439) by which it “returned” the First Submission to the applicant. He submitted that the reasons given for this return are “broadly consistent” as between the decision record and the letter of return.
Those reasons were said to be that the submissions exceeded the five-page “limit”. The applicant argues that, the imposition of the five page limit to the entirety of the First Submission was a misconstruction, and misapplication, of the Practice Direction.

The applicant argues that the Practice Direction did not impose a five-page limit on submissions to the IAA in a “general sense”. That is, when read fairly, the Practice Direction provides for five page limits on submissions in relation to each of the following. First, written submissions in relation to the matters referred to in [20] of the Practice Direction. Second, another five-page limit on submissions explaining the matters set out at [23].
Importantly, the applicant argues that the Practice Direction does not impose any five-page, or indeed any page, limitation on “new information”. The relevant limitation is as to the explanation as to why the IAA should consider the new information, not the length of that new information.
I agree with the applicant that that submission was consistent with the Minister’s own submission in DGZ16 v Minister for Immigration and Border Protection & Anor [2018] FCAFC 12 (“DGZ16”) (see at [93]). Further, as set out in DGZ16 the five-page limitation was said not to prevent the IAA “from considering submissions that exceeded the page limit” in relation to “information” (also at [93]).
In the current case the Minister did not appear to challenge, or resile from his submissions in DGZ16 in the current case. (However see further below).
If the IAA’s letter is to be read as imposing a generic comprehensive or “strict” five-page limit then such a reliance could reveal a misunderstanding of the Practice Direction as the applicant contends in the current proceeding. (However see further below).
The applicant’s submission before the Court as expressed as the “third aspect” to his argument is that such a misconstruction, and misapplication, of the Practice Direction is sufficient to say that the IAA fell into jurisdictional error.
This is said to be because the relevant country information, referred to in the First Submission, was not considered pursuant to s.473DD. I understood this to mean that the IAA did not give consideration to the matters set out at (a) and (b) of s.473DD of the Act, with a view to deciding whether the prohibition set out at the beginning of s.473DD of the Act applied in the applicant’s circumstances.
Some care must be taken here because, as the applicant himself also acknowledges, the IAA, with reference to s.473DC(2) of the Act, is under no duty to accept any new information. The applicant’s argument focuses on the assertion that the IAA still had a duty to consider whether it could take into account the information in the First Submission (with reference to s.473DD).
However it is important not to forget the actual legal error pleaded in the ground of the amended application. That is that the IAA “constructively failed to exercise its jurisdiction” by failing to take into account the “contents” of the First Submission. That is, a constructive failure to conduct the review.
The applicant’s focus in his submissions is on a “strict” compliance with s.473DD. That is, the jurisdictional error is said to be the failure of the IAA to engage with the task set out in s.473DD.
However as set out above the ground focuses on what is said to be a constructive, and particular, failure to exercise jurisdiction. That requires a focus not only on one section of the IAA’s jurisdiction, but the entirety of the relevant scheme, and the IAA’s application of it to the circumstances before it.
In this light the Minister submitted that the task of the IAA arising from Part 7AA of the Act, (with reference in particular to s.473CC) is to consider the application for the protection visa “afresh”, and to determine whether the grounds for the grant of the visa have been met (Plaintiff M174/2016 v Minister for Immigration and Border Protection & Anor [2018] HCA 16).
The relevant statutory scheme within which this task is to be exercised includes the restrictions imposed by s.473CC and s.473DD. This also includes the “restriction” in the Practice Direction.
I agree with the Minister’s submissions, founded as they are on the reasoning and findings in DGZ16, that these “constraints” are statutorily imposed to encourage, and promote, concise submissions from applicants.
Therefore, also consistent with the Minister’s submissions in DGZ16 and the Full Court’s approach in that case, the focus of the Practice Direction is not necessarily to be characterised as a “narrow opportunity” to provide new information, (there is no page limitation for new information, see DGZ16 at [93]), but rather to promote concise submissions about the matters referred to at [20] and [23] of the Practice Direction.
In this light the current dispute between the parties is as follows. The Minister argues that the First Submission contained 45 links, or references, to country information which the applicant urged the IAA to consider.
The applicant’s submissions before the IAA set out a large number of points said to emerge from the country information (CB 446 – CB 447). The “ultimate” thrust of the submissions could be understood as being, with reference to that country information, to argue against the delegate’s finding that the applicant could reasonably relocate away from his local area in Pakistan, and safely and reasonably relocate elsewhere in Pakistan (CB 106 – CB 107).
That background gives context to the IAA’s approach to the First Submission. One, the IAA acknowledged that the submissions had been made ([4] at CB 454). Further the IAA noted that the applicant was not disadvantaged by the Department’s delay in responding to a Freedom of Information (“FOI”) request, because the IAA gave the applicant access to the documents he sought.
Two, while the First Submission was “returned” (for reason of length), the IAA nonetheless identified an argument and/or claim that the delegate had failed to consider, namely the applicant’s claim to fear harm as it was said to arise from his membership of the Turi tribe ([6] at CB 454).
Three, while the IAA said it had no “further” regard to the First Submission (the Minister emphasised the word “further”) nonetheless it made clear that the consideration of the question of any possible future interview of the applicant, would await the Second Submission.
Four, the IAA gave detailed consideration to the Second Submission. A point which the applicant does not now dispute. This included specific consideration of the 45 items of country information (referred to in the First Submission), which the IAA “cross checked” with country information referred to in the delegate’s decision. The IAA was unable to identify any of this country information as being country information on which the delegate relied. These were therefore “new information”, and the IAA found it was not satisfied that the matters in s.473DD(a) and (b) were made out. The applicant makes no attack now on the IAA’s findings in this regard.
The applicant argues, in short, that whatever the IAA did with the Second Submission, its failure to turn its mind to the information in the First Submission, was itself revelatory of jurisdictional error.
Given the precise nature of the applicant’s ground (a constructive failure to exercise jurisdiction) I agree with the Minister that to succeed in his argument now the applicant would need to show how the IAA’s exercise of its jurisdiction miscarried.
As set out above the applicant relies on the alleged misapplication of the Practice Direction and the IAA’s statement that it had no regard to it. Noting of course as the Minister submits that what was said was: no “further” regard, given the matters set out at [4] – [6] of the decision record (CB 454).
The applicant relies on Minister for Immigration and Border Protection v CLV16 [2018] FCAFC 80 (“CLV16”) at [42] for the proposition that: “Having provided the visa applicants with that guidance, [that is the matter set out in the Practice Direction], it would be contrary to good administrative decision-making for the Authority to invite the submission, receive the submission but fail to take the submission into account.”
However I also respectfully take note that at [74] of CLV16 the Full Court exposed the tension in s.473DD between: “…the constraints imposed by s.473DD, and the power of the Authority to entertain a ‘‘submission”, and “Although such difficulties may be accepted, those difficulties cannot preclude a visa applicant from advancing his or her claims in such a manner as he or she sees fit. It remains for the Authority to sort the wheat from the chaff.”
The applicant alleges that the IAA fell into error because it failed to take into account the contents of the First Submission. This directs attention not only to the IAA’s decision record, but to its letter of 21 September 2016 to the applicant (CB 438 – 439).
There are a number of features of the IAA’s decision record, and letter, that are relevant to the current consideration.
One, the IAA specifically referred to the submissions dated 18 September 2016. That is, the applicant’s First Submission. This of itself is not sufficient to fully address the applicant’s ground, given that the complaint is that the IAA did not take into account the “contents” of the submissions. Nonetheless, it is an element in answer to the applicant’s argument now.
Two, the IAA noted that the applicant had been given access to documents he had requested, and that this access had been granted by the IAA “outside” of the FOI provisions.
Three, the IAA made reference to the written submissions as being 97 pages in length. In this light the IAA noted that: “…it exceeds the five page limit”.
It is here that the dispute before the Court take shape. The applicant argues that the document of 18 September 2016 was not just “submissions” (as said to have been described by the IAA), but also comprised “new information” thus engaging what was relevantly said in CLV16.
However it is important to note, as the Minister submits, that the IAA’s reference to the document as “submissions” is no more than to characterise the document in the same terms used by the applicant’s representative, a migration agent, Mahalingam Sutharshan of Parish Patience Immigration Lawyers (see CB 420), who authored the document (see the references to “submission” at CB 324 – CB 325).
In effect, the applicant’s representative has characterised the document as “submissions” even though the actual submissions of “substance” are barely of one page in length (CB 419). Even then, most of it, if not all, is the representative’s “argument” as to why the IAA should accept the long list of references to country information that follows (for some 94 pages) interspersed with a bare reiteration of the applicant’s claim to fear harm (see for example at CB 326 and CB 419).
I agree with the Minister that what the representative sought to put forward to the IAA in the letter dated 18 September 2016 were “submissions” which were, in effect a restatement of the applicant’s claims (for example CB 326 – see the three “points” set out there) followed by item after item of references to websites, country reports and media articles.
That is the “submissions” were an incredibly long list of unexplained references to country information sources, other than for some general and short, restatement of the applicant’s claims to fear harm.
Four, there is nothing in the “submissions” to indicate that the representative, who was a migration agent (as he emphasised in the submissions), properly understood the relevant statutory scheme set out at Part 7AA of the Act.
There was no dispute between the parties before the Court that Part 7AA set out Parliament’s intention as to the “fast track” review that applied to the applicant’s circumstances.
The representative’s approach in the “submissions” (the “First Submission”) was to simply “list” well over 260 references to country information, which in turn included many other references to country information, and Refugee Review Tribunal decisions.
As is made clear in s.473DD, the distinction between information that was before the delegate, and information that an applicant seeks to put before the IAA, (which was not before the delegate) is important in the statutory scheme relating to the fast track process.
The Practice Direction is directed towards fulfilling, and meeting, the requirements of the fast track process. It is to be remembered that the statutory scheme provides for a “fast track” review of the delegate’s decision. Consistent with the statutory scheme the Practice Direction requires that submissions concerning why the applicant disagrees with the delegate’s decision, and any claim that he says was “overlooked” by the delegate, “must be concise”. (With reference to [20] – [21] of the Practice Direction).
In that light it was reasonably open to the IAA to return the First Submission to the applicant so as: “…to allow you to provide a concise submission” (the IAA’s letter at CB 438.7).
Five, as set out above, a part of the applicant’s argument now before the Court is that there is a distinction between submissions, and new information. That is, the Practice Direction sets a five-page limit on submissions ([20] – [21]) and the explanation as to why the information could not have been given to the Department ([23] – [24]), and the actual new information in respect of which, as the applicant now says, the Practice Direction imposes no page limit.
Even accepting this latter part of the applicant’s argument, that does not assist him in the circumstances presented. That is because the First Submission made no attempt whatsoever to identify, and delineate, what of the long list of country, and other, information references, are “new information” for the purposes of s.473DD.
Further and importantly, no attempt was made to provide any explanation as to why any new information could not have been given to the Department, or was credible personal information not previously known (with reference to Practice Direction [23]). Such explanation again must be no longer than five pages (Practice Direction [24]).
The applicant’s representative’s approach in the First Submission was to, in effect, take issue with the fast track process, and to argue that he be allowed to make submissions of any length: “…in the lawful interests of the clients” of migration agents.
There may well be policy issues involved in arguing about the merits, or otherwise, of the fast track system. They are not issues to be aired in individual cases before the IAA, or for that matter before this Court. Plainly they are issues for Parliament.
In the meantime it was therefore appropriate for the IAA to return the First Submission: “… to allow you to provide a concise submission which identifies the issues and that complies with the Practice Direction” (CB 438.7). I agree with the Minister that the IAA’s approach was consistent with what was relevantly said in DGZ16. The IAA did not misunderstand or misapply that part of the Practice Direction.
Six, notwithstanding the applicant’s representative’s failure to identify what was new information in the First Submission, the IAA did, in any event, seek to identify the character of the information contained in those submissions.
In this light the IAA told the applicant’s representative, in its letter of 21 September 2016: “Much of your submission is country information not before the Department of Immigration. It is therefore new information. The further statement of your client and the attachments thereto may also be new information” (CB 438.8).
Given that, and importantly, given the applicant’s argument now before the Court, the IAA also advised: “… Your submission also does not comply with the Practice Direction requirement that you provide an explanation as to why any new information your client may give to the IAA is information that could not have been given to the Department of Immigration before the decision was made, or is credible information which was not previously known and may have affected consideration of your client’s claims had it been known” (CB 438.9).
Again the IAA’s letter reveals an understanding consistent, or at least not inconsistent, with the Practice Direction. There is nothing in the IAA’s letter to support the applicant’s proposition now that the IAA misunderstood or misapplied the Practice Direction.
The applicant’s representative was, in effect, directed to those parts of the Practice Direction dealing with new information, and the need for an explanation from the applicant.
Seven, in short the IAA’s letter “mirrors” the paragraphs of the Practice Direction which feature now in the applicant’s argument.
The fourth paragraph of the IAA’s letter (CB 438.6) addressed Practice Direction [20] – [21]. That is, any submissions directed to the matters at Practice Direction [20] must be “concise” and be “no longer than five pages” (with reference to [21]). The applicant’s representative otherwise acknowledged that the submissions were longer than five pages.
The fifth paragraph of the IAA’s letter (CB 438.8) addressed the matter of “new information”. The IAA correctly, and consistent with the statute and the Practice Direction, advised that the First Submission did not comply with the Practice Direction in that no explanation regarding the new information was provided.
There is nothing in this part of the IAA’s letter to say that the identification of the new information, and its presentation, was confined to 5 pages. The reference to “five page limit” in the fourth paragraph, when read fairly, plainly relates to “concise submission which identifies the issues” (that is with reference to Practice Direction [20] and [21]).
Eight, no issue was taken by the applicant before the Court with the IAA’s treatment as revealed in its decision record, of the Second Submission. However, it is of value to consider it given what it implies about the First Submission, and its author.
This document sets out, a restatement in general terms, of the basis of the applicant’s claim to fear harm (CB 443.4). It then lists 45 links to country information sources under some of the “general headings” of the claims to fear harm. (CB 443.5 – CB 446.5).
The Second Submission acknowledges that: “…due to the restriction on submission as a result of the Practice Guidance, we now only provide links to the IAA to have a look of the country information” (CB 446.6).
Again there is nothing in the IAA’s letter of 21 September 2016 to cause the applicant’s representative to present, or “restrict”, the Second Submission in this way. In the circumstances it appears that the applicant’s representative, a migration agent, has himself misunderstood the relevant statutory scheme, and the terms of the Practice Direction in circumstances where it cannot be said that the IAA’s letter misled him in this way.
In any event, the applicant’s representative does not provide any “explanation” as required by the Practice Direction at [23] (in relation to new information), because he says, with reference to the country information links in the letter: “…that above country information is not a new information” (CB 446.6).
The reason given for this is (at CB 446.6):
“…because the applicant has mentioned that he is Turi and we submit there are enough evidence confirms that Turi-Shias face a real risk of harm in Pakistan.”

[Errors in original].

What follows in the letter is a series of dot points as to why the applicant faces harm on return to Pakistan (CB 446.7 CB 447.7). Ultimately the “Conclusion” is as follows:
“2. We request the IAA to consider all evidence submitted to the DIBP and IAA including country submission on persecution against Turi Shias when assessing the applicant’s claim.
3. The overwhelming evidence we provided in our submission, clearly indicates that internal relocation is not a reasonable option in our applicant’s case.
4. For the reasons outlined above, we submit that the applicant’s political opinion (imputed), religious and racial background and membership of a to particular social group are essential and significant reasons for the persecution that would, were out client to return to Pakistan, involve serious harm amounting to systematic and discriminatory conduct.
5. We further submit in the particular circumstances of our client’s case and in the light of the above information that the applicant should be recognised as a refugee.”

[Errors in original]

No real attempt is made in the Second Submission to address the matters raised by the IAA in its letter of 21 September 2016 in relation to the country information. Simply to assert that the country information links (even in their revised form) is not “new information” because the applicant claimed to fear harm as a Turi, makes no attempt to address the relevant statutory regime, and in particular s.473DD, and for that matter the underlying thrust of the Practice Direction.
It may be said that up to, and including the First Submission, the representative sought to take issue with what he saw to be the “unfairness”, or “restriction”, of the statutory regime, and the Practice Direction. However, the Second Submission reveals the very misunderstanding by the representative of the Practice Direction (and the statutory regime) of which the applicant now accuses the IAA.
It may be appropriate for those in the Minister’s Department concerned with such matters, to refer the applicant’s representative to the relevant authority for consideration as to whether the representative (a migration agent) requires training and instruction in the fast track regime, so as to be able to properly fulfil his obligations as a migration agent.
Nine, the IAA’s decision record confirms the view set out above that the IAA did not misunderstand or misapply the Practice Direction. Nor, importantly, that it failed to consider “relevant information” in the First Submission because of the approach it took as explained in its letter of 21 September 2016.
The difficulty for the applicant now before the Court arises from the nature of the First Submission itself.
For the reasons set out above, there was no error in the IAA’s finding that the applicant’s: “…agent provided a 97 page submission” ([4] at CB 454). The document was, on the evidence, of 97 pages in length.
Importantly, however, when [4] of the IAA’s decision record is read with the terms of the letter of 21 September 2016, it was reasonably open to the IAA to find that this document was not consistent with the Practice Direction. The Practice Direction (at [21]) requires a “concise” submission on the matters raised at Practice Direction [20]. There is little, if anything, in the First Submission to say that there was a concise submission in relation to those matters.
The IAA said that it gave the applicant’s representative the opportunity to provide a: “revised submission in compliance with the Practice Direction” ([4] at CB 454). When, again, read fairly, and in context of its letter of 21 September 2016, this included the opportunity to provide “new information” with an explanation as to why the IAA should have regard to it in the circumstances envisaged by s.473DD.
As set out above, the applicant’s representative replied (in the Second Submission) that the information (with reference to the country information “links” in the Second Submission) “… is not a new information” (CB 446.6). No attempt is made to satisfactorily explain this, particularly in light of the importance of the distinction between “old” and “new” information in the statutory regime.
The only “explanation” offered is that this information “… confirms that Turi-Shias face a real risk of harm in Pakistan” (CB 446.6). This makes no attempt to address the IAA’s statement in its letter of 21 September 2016 that the country information (referred to in the First Submission) was “… not before the Department of Immigration” (CB 438).
In its decision record the IAA had specific regard to the issue as it was raised in the First Submission (see [6] at CB 454). When regard is had to the text of the First Submission, the Turi Shia claim appears to be central, if not exclusively so, to the applicant’s claim to fear harm (CB 325.7 – CB 326.1).
This part of the First Submission does seek, at least initially, to address the matters raised at the dot points of Practice Direction [20]. That is, why the applicant disagrees with the decision of the Department, albeit in a superficial and general way.
However as the First Submission ultimately made clear the purpose for raising this matter in those submissions, is to persuade the IAA to invite the applicant to a “hearing”. (CB 326.1).
The IAA addressed this both in its letter of 21 September 2016 (CB 439.3) and at [6] of its decision record (CB 454):
“The first IAA submission submits the delegate failed to consider the applicant’s claim he is a member of the Turi tribe and that natural justice requires the IAA to invite the applicant to a hearing to present this claim. When returning the first submission to the migration agent, I replied the IAA does not conduct hearings and that after receiving any revised submission, I would assess if I it was necessary to invite the applicant to provide new information.”

[Errors in original]

In that sense the IAA did have regard to the First Submission, in light of the “submission” actually made.
Ten, a point of dispute between the parties at the hearing before the Court was as follows. The applicant’s ground asserts a constructive failure to exercise jurisdiction, because the IAA failed to take into account the contents of the First Submission. A part of this dispute involved the matter of procedural fairness (see [19] – [24] above).
The particulars assert that these submissions were a combination of submissions, and “additional information”. As set out above, in essence, this was country information. The allegation is that the IAA failed to take the country information into account.
The Minister argued that the applicant, before the Court, failed to identify precisely what information was in the First Submission (and not in the Second Submission), and was not new information such that the IAA should have considered it. The Minister pressed that the applicant should not be permitted to leave his ground “at that level of generality” that simply said the IAA failed to consider country information because it returned the First Submission.
In response, the applicant submitted that it is not now for the applicant to identify, nor for the Court to do so, what information was in the First Submission, and not in the Second Submission, and what was new information. That is a task for the IAA.
The IAA’s error therefore is said to be that it did not turn its mind to whether s.473DD was engaged in relation to any part of the First Submission. The reason it failed to do so was said to be because it misapplied, and misapprehended, the requirements of the Practice Direction.
I do not agree with the latter part of the applicant’s submission here for the reasons already set out above.
As to the first part of this submission, I also do not agree that the IAA was obliged to turn its mind immediately to s.473DD in circumstances where the applicant’s First Submission failed to delineate what was information before the delegate, and what was new information in respect of which he sought to engage s.473DD.
Undoubtedly, as the applicant also submitted, the IAA “… needs to do its job under s.473DD”. But the applicant’s representative also had a “job to do”. That is, to present to the IAA submissions about the delegate’s decision, and new information accompanied by the relevant explanation, in a way that was consistent with the statutory regime, and the Practice Direction.
What the IAA’s letter of 21 September 2016 sought to do, was to obtain from the applicant’s representative submissions, and explanations, consistent with the Practice Direction’s requirements, and the relevant statutory regime.
In his submissions before the Court, the applicant’s counsel submitted that in “most of the cases” (relating to the IAA) the IAA engaged “in some form of deconstruction” in “analysing” the different parts of any letter it receives from an applicant, or his or her representative.
The applicant’s counsel sought to draw from what was said in CLV16 at [74]:
“It remains for the authority to sort the wheat from the chaff.”
I respectfully understood the Full Court to use that phrase as an example to illustrate, or highlight, the IAA’s task in considering the submissions made to it in that case.
In the current case, however, even though the applicant’s representative described the First Submission as “submissions”, the reality is that in essence, and overwhelmingly, the document was simply a list stretching over 90 plus pages of web links, and other documents, with the implication that the IAA would then go and read and consider every single item. All of this was done without regard by the applicant’s migration agent to the statutory requirements, and the Practice Direction.
Such an approach is inimical to, if not simply contrary to, the entire fast track processing regime required by the statute.
To respectfully draw on the description used by the Full Court in CLV16, the First Submission did not, for all the reasons set out above, reach the point where the IAA was required to separate “the wheat from the chaff”. That point was reached with the Second Submission about which the applicant now makes no complaint concerning the IAA’s approach, or its consideration.
The applicant’s ground is not made out. It is appropriate to dismiss the application. I will make the appropriate order.

I certify that the preceding one hundred and thirty-two (132) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Date: 21 January 2019