DHV16 v Minister for Immigration & Anor
[2018] FCCA 349
•14 March 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DHV16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 349 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka – applicant disbelieved in critical respects and other fears found not to be well-founded – applicant attempting to introduce new information to corroborate his claims – Authority not satisfied in relation to the matters set out in s.473DD(b) of the Migration Act 1958 (Cth) – whether the Authority adopted an unduly narrow construction of s.473DD(b) considered – jurisdictional error established. |
| Legislation: Acts Interpretation Act 1901 (Cth), s.25D Migration Act 1958 (Cth), ss.65, 430, 473CB, 473DB, 473DC, 473DD, 473EA, 473FB |
| Cases cited: AUS17 v Minister for Immigration & Anor [2017] FCCA 1986 DVF16 v Minister for Immigration [2017] FCCA 2778 Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318 Minister for Immigration v SZGUR (2011) 241 CLR 594 VCAD v Minister for Immigration [2005] FCAFC 1 |
| Applicant: | DHV16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 3052 of 2016 |
| Judgment of: | Judge Driver |
| Hearing dates: | 13 November 2017, 7 February 2018 |
| Delivered at: | Sydney |
| Delivered on: | 14 March 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms E Grotte |
| Solicitors for the Applicant: | Michaela Byers, Solicitor |
| Counsel for the Respondents: | Mr B Kaplan |
| Solicitors for the Respondents: | HWL Ebsworth |
ORDERS
A writ of certiorari shall issue removing the record of the Immigration Assessment Authority decision made on 13 October 2016 into this Court for the purpose of quashing it.
A writ of mandamus shall issue, requiring the Immigration Assessment Authority to redetermine the review referred to it, according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3052 of 2016
| DHV16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 13 October 2016. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from the initial written submissions of the parties.
The applicant is a Sri Lankan national who arrived in Australia by boat on 19 November 2012.
On 7 January 2013 the applicant had an entry interview.[1]
[1] the delegate refers at [5] to an arrival interview earlier on 19 October 2012
On 5 February 2016 the applicant applied for a Safe Haven Enterprise Visa (SHEV).[2]
[2] Court Book (CB) l
Relevantly, the applicant claimed that his family had been branded an LTTE[3] family. In particular, he claimed that one of his sisters (N) had been an active combatant with the LTTE who was gang raped by Sri Lankan soldiers and who fled to the UK.
[3] Liberation Tigers of Tamil Eelam
On 26 May 2016 the applicant attended an interview with the delegate.[4]
[4] CB 408 at [7]. The delegate at [6] refers to the interview as being on 24 March 2016
On 19 August 2016 the delegate refused the SHEV application.[5] The delegate found that the applicant did not have a sister who fought with the LTTE and, indeed, had no biological sister at all.
[5] CB 331
The Minister referred the fast track reviewable decision to the Authority on 31 August 2016.[6]
[6] CB 360
On 31 August 2016 the Authority acknowledged referral of the applicant's case from the Minister’s Department.[7]
[7] CB 359
On 1 September 2016 the applicant appointed another agent to act for him. On 5 September 2016 the new agent wrote to the Authority about the provision of new information.
On 8 September 2016 the agent sent a medical report[8] and an affidavit from N in the UK[9] by email.
[8] CB 377
[9] CB 379
On 22 September 2016 the agent sent an affidavit from the applicant’s mother[10] by email.
[10] CB 385
On 12 October 2016 the agent sent a DNA test report[11] by email.
[11] CB 401
On 13 October 2016 the Authority affirmed the decision not to grant the applicant a protection visa.[12] Like the delegate, the Authority found that the applicant had no biological sister. The Authority therefore rejected the applicant’s claims concerning his sister, as well as other claims relating to his family.
[12] CB 407
On 4 November 2016 the applicant lodged his judicial review application in this Court.
The current proceedings
As noted above, these proceedings began with a judicial review application lodged on 4 November 2016. That application was subsequently amended. At the commencement of the trial of this matter on 13 November 2017, counsel for the applicant sought an adjournment in order give further consideration to the grounds in the application. That adjournment was granted. I gave the applicant leave to file and serve a further amended application and I sought additional written submissions, with the hearing to be resumed on 7 February 2018. The further amended application filed on 24 November 2017 contains the following grounds:
1.The Authority acted unreasonably under s473DD in finding that the evidence provided to the Authority relating to the applicant's biological sister was new information, which could not be considered because there was no explanation as to why it had not been provided prior to the Minister's delegate making his decision. The Authority and thereby fell into jurisdictional error.
Particulars
a. The delegate made the following findings:
i. At [43] the delegate found that he was not satisfied that the applicant has biological sisters as claimed in his application for protection visa;
ii. At [47] the delegate considered country information regarding the prevalence of document fraud in Sri Lanka and the discrepancies found between both the birth certificates submitted by the applicant and placed no weight on the document produced by the applicant claiming to be his sister's birth certificate.; and
iii. At [48] the delegate did not accept the applicant has biological sisters and that one of his sisters was LTTE as claimed.
b. In order to rebut the delegate's findings in accordance with [20] of the Authority, Practice Direction No. 1, the applicant provided documentation relating to his biological sister to the Authority;
c. At [6] the Authority found that the following documentation was not new information:
i. The applicant's sister's affidavit sworn by her on 6 September 2016 and
ii. The Medical Report relating to the applicant.
d. At [6] the Authority found that the following documentation was new information:
i. The applicant's sister's asylum status in UK;
ii. The affidavit sworn by the applicant's mother;
iii. Three birth certificates attached to the applicant's mother's affidavit; and
iv. Sibling DNA test.
e. All the documentation is evidence provided to rebut the delegate's finding that the applicant does not have a biological sister and in particular the DNA test is credible personal information that ought to have been considered by the Authority as it could affect the outcome of the consideration of the applicant's claims. The Authority erred in not considering this information and acted unreasonably in doing so.
3. The Authority adopted an unduly narrow construction of s473DD by confining its determination of the new information to whether or not the applicant provided an explanation in accordance with the Practice Direction 1 and in so doing, misconstrued its statutory task and constructively failed to exercise jurisdiction under s 473DD.
Particulars
a. At [7]-[9] the Authority reasoned that a failure to provide an explanation was determinative of the matters sets out in s 473DD. In doing so, it constructively failed to exercise jurisdiction under s 473DD.
b. In determining whether the new information as identified by the Authority could be considered by it, section 473DD required the Authority to determine whether there were exceptional circumstances to justify its consideration of the new information as well as determining whether it is satisfied as to why the new information was not and could not have been provided to the Minister before the Minister made its decision, OR that the new information was credible personal information which was not previously known, and had it been known, may have affected the consideration of the applicant's claims.
c. The DNA test is credible personal information in accordance with subsection 473DD(b)(ii) that directly addressed the question of whether or not the applicant has a biological sister. This new information could affect consideration of the applicant's claims.
d. Subsection 473DD(b)(i) requires a factual inquiry into whether or not the information could have been provided to the Minister, and is not limited to whether or not an explanation as to why it was not has been proffered. The factual inquiry could include an inquiry as to the nature of the new information.
e. Subsection 473DD(a) requires a consideration by the Authority of all relevant circumstances in determining whether there are exceptional circumstances that justify the consideration of the new information. The relevant circumstances include a consideration of the significance of the new information in the context of the applicant's claims and of its nature and probative value.
Ground 2 in that application was abandoned.
I have before me as evidence the court book filed on 30 January 2017. In addition to the original and supplementary written submissions filed by both the applicant and the Minister, they made oral submissions through their counsel at the resumed hearing of the matter on 7 February 2018. I have been assisted by those submissions.
Consideration
These proceedings raise difficult questions concerning the interpretation of s.473DD of the Migration Act 1958 (Cth) (Migration Act). The operation of that section has already been the subject of detailed consideration in the Federal Court, but not all questions of interpretation have been answered in those proceedings. This case provides a vehicle to address some of the unanswered questions. It is appropriate to begin first with the contentions of the applicant and the Minister on the issues of interpretation and the application of the legislation in the context of this decision of the Authority.
Applicant’s contentions
The applicant contends that the Authority acted unreasonably under s.473DD in finding that the evidence provided to the Authority relating to the applicant's biological sister was new information and thereby fell into jurisdictional error.
As extracted at [17] above, the particulars for this ground are that the delegate found at [43][13] that he was not satisfied that the applicant has biological sisters as claimed in his application for protection visa.
[13] CB 344-345
At [47][14] the delegate considered the country information regarding the prevalence of document fraud in Sri Lanka and the discrepancies found between both the birth certificates (the applicant’s own and N’s) submitted by the applicant and placed no weight on the document produced by the applicant claiming to be his sister's birth certificate in making his findings as to the claims regarding the applicant's sister.
[14] CB 345
At [48][15] the delegate found that the applicant did not have biological sisters as he claimed and found that he did not have a sister who had been a combatant for the LTTE as he claimed.
[15] CB 345-346
In order to address these findings of fact, the applicant provided documentation relating to N, to the Authority “in accordance with” Practice Direction No. l (the Practice Direction) issued on 21 April 2016.[16] The documentation was an affidavit of N sworn on 6 September 2016 in the United Kingdom,[17] a letter from the UK Visas and Immigration Asylum Casework Unit confirming N’s grant of asylum,[18] a UK Border Agency Application Registration Card with photo identity[19] and a DNA test report dated 30 September 2016 confirming the siblingship of N and the applicant,[20] as well as an affidavit of the applicant's mother annexing birth certificates of her children.[21]
[16] CB 369 at [20]-[28]
[17] CB 379
[18] CB 381
[19] CB 383
[20] CB 401
[21] CB 385
At [6][22] the Authority found that N’s birth certificate and the medical report relating to the applicant were not new information because they were included in the material referred by the Secretary under s.473CB of the Migration Act.
[22] CB 408
At [6][23] the Authority found that the remaining documentation did amount to “new information”, but it determined at [9][24] that it was prevented from considering the new information because it was not satisfied as to the matters set out in s.473DD(b). The reasons given for this conclusion are set out in [7]-[8].
[23] CB 408
[24] CB 409
Section 473DD provides:
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 Authority determined that the "new information" could not be considered by it because it did not comply with the relevant Practice Direction of May 2016[25] in that reasons were not provided as to why the information could not have been given before the delegate made a decision, and also because there was no explanation provided by the applicant as to why the information was credible personal information which was not previously known and, had it been known, may have affected the consideration of the applicant's claims.
[25] signed by the President on 21 April 2016 and issued on 1 May 2016
The explanation as to why the new information was not provided to the Minister before the delegate made the decision is said to be self-evident. The applicant could not have known that the delegate would have found that he did not have any biological sisters and that N was not his biological sister, until after the decision was made. It was only once it was determined by the delegate that this was a dispositive issue for the delegate that the applicant obtained the new information.
Having found that there was no explanation provided in conformity with the Practice Direction, the Authority concluded that it was not satisfied “in relation to the matters set out in s.437DD(b)”.
The Authority is said to have acted unreasonably by basing its decision to refuse consideration of the new “highly relevant and critical” information regarding the applicant's siblingship on the fact that no explanation had been provided to it. The applicant submits that the provision of an explanation can only be a factor in the overall consideration of the issue of whether the new information ought to be considered. He contends that a failure to provide an explanation cannot be determinative.[26] The Authority confined its determination of whether to consider the new information to whether an explanation had been provided by the applicant. This approach to the exercise of its discretion under s.473DD is said to have been legally unreasonable.
[26] BVZ16 v Minister for Immigration [2017] FCA 958 at [46]
The Authority also failed to consider s.473DD(a).[27]
[27] BVZ16 at [34]-[37]
The new information addressed the substantive merits of the applicant's case. No consideration was given by the Authority to whether there were any exceptional circumstances to justify considering the new information. There is no indication in the decision or statement of reasons that the Authority considered s.473DD(a). "Exceptional circumstances" will be those which are out of the ordinary course and which will justify the new information being considered even though the new information had not been provided to the Minister at the time of the s.65 decision. A variety of matters may be capable of bearing upon those circumstances,[28] such as the highly relevant and critical nature of the information.
[28] BVZ16 at [43]
The failure to consider whether there were any "exceptional circumstances to justify considering the new information" is said to be legally unreasonable and constitutes jurisdictional error.
Ground 3
The applicant contends, in the alternative, that the Authority adopted an unduly narrow construction of s.473DD by confining its determination of the new information to whether the applicant provided an explanation in accordance with the Practice Direction. The Authority appears to have reasoned that a failure to provide an explanation was determinative of the matters set out in s.473DD. In doing so, the Authority is said to have constructively failed to exercise its jurisdiction under s.473DD, which amounts to jurisdictional error.[29]
[29] BVZ16 at [46]-[47]
Ground 3 in the previous amended application and the expanded Ground 3 in the further amended application rely on the decision of White J of the Federal Court in BVZ16 at [47]-[48].
In that decision, the Court concluded that the Authority had acted on an inappropriately narrow understanding of the reach of the term “exceptional circumstances” in s.473DD of the Migration Act. This had occurred because the Authority in that case had confined its consideration of whether there were exceptional circumstances to the evaluation of the applicant's explanation for not having provided the information earlier. White J in BVZ16 found that this error amounted to a constructive failure by the Authority to exercise jurisdiction of the kind discussed in Craig v State of South Australia[30] at 177-8.
[30] (1995) 184 CLR 163
It is the applicant's contention in the present case that the Authority made the same error.
Reliance for this contention is also drawn from the Full Federal Court's conclusions and reasoning in Minister for Immigration v BBS16[31] in which it agreed with White J’s reasons in BVZ16 for concluding that the Authority in that case had adopted an inappropriately narrow understanding of the phrase "exceptional circumstances" in s.473DD of the Migration Act.
[31] [2017] FCAFC 176
In BBS16 the Full Federal Court rejected the Minister's contentions that his Honour had misconstrued or misapplied the term “exceptional circumstances” under s.473DD of the Migration Act. The Full Court also agreed with White J's findings and reasons that “the requirements of subparas (a) and (b) of s.473DD are cumulative but may nevertheless overlap to some extent, with the effect that the IAA's consideration of either of both limbs in subpara (b) may inform the IAA's satisfaction under subpara (a) as to whether there are exceptional circumstances to justify consideration the new information”.[32] Further, at [103]-[105] the Full Court said:
That is not to say, however, that the matters in subparas (b)(i) and (ii) are the only matters to be considered by the IAA in determining whether it is satisfied that there are exceptional circumstances to justify considering any new information.
As White J explained, the phrase “exceptional circumstances” is to be given a broad meaning, along the lines of circumstances which are unusual or out of the ordinary. This necessarily requires that consideration be given to all relevant circumstances” (see the authorities cited by his Honour at [39]-[41] of BVZ16).
For the reasons given by his Honour, including his references to relevant extrinsic material, we respectfully agree that subparas (b)(i) and (ii) would be understood as referring to different kinds of new information. The former provision requires a factual inquiry as to whether or not the new information could have been presented to the Minister. The latter provision requires an evaluation of the significance of the new information in the context of the referred applicant's claims more generally.
[32] at [102]
The Full Court in BBS16 also agreed with White J’s conclusion and reasons for rejecting the Minister's claim that on the proper construction of s.473DD(b)(ii) of the Migration Act, the phrase “which was not previously known” should be construed as meaning “not previously known to [the referred applicant]”. The Court held that the provision applies to new information given to the Authority by a referred applicant which, if it had been known by either the Minister or the referred applicant, may have affected the consideration of the referred applicant's claims for protection.[33]
[33] BBS16 at [106]
The alleged error
Section 473DD of the Migration Act precludes the Authority from considering any “new information”, which is information that was not before the Minister when the Minister made the decision, and which the Authority considers is relevant, unless the Authority is satisfied that:
a)there are exceptional circumstances to justify considering it; and
b)the new information was:
i)either not provided and could not have been provided to the Minister before the Minister made the decision; or
ii)the new information was 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 Authority decided that it was not satisfied in relation to the matters set out in s.473DD(b),[34] and that prevented the consideration of the new information. The Authority stated at [8][35] that the applicant offered no explanation as to why the information was not provided to the Minister before the decision was made and at [7] suggested that the delegate had given the applicant ample opportunity to provide any further relevant information prior to the decision being made.
[34] CB 409 at [9]
[35] CB 408
However, the applicant would not have known that the delegate was intending to make an adverse finding that he did not have any biological sisters and that N was not actually his sibling. This finding was not obviously open on the known material, and the applicant had provided what he believed was evidence of his relationship with his sister. It was only once the delegate made the decision that the applicant became aware that he had to provide more compelling evidence of, not only his blood relationship with his sister, but her status in the UK, and to address the inconsistencies in the birth certificates.
The Authority also focused its consideration of the new information only on the requirements set out in s.473DD(b) and only addressed the requirements in relation to "new information" that are set out in the Practice Direction. It said nothing about whether there were any exceptional circumstances enabling it to consider the new information. That is said to be a requirement in addition to the requirements set out in s.473DD(b).[36]
[36] BBS16; BVZ16; AUS17 v Minister for Immigration & Anor [2017] FCCA 1986
The Authority did not turn its mind to the question of whether there were any exceptional circumstances, such the nature of the new information and probative value of that purportedly corroborative evidence, in particular the DNA test. It could be that the “highly relevant and probative nature” of the new information informed the question of whether exceptional circumstances existed. This is said to have been a relevant consideration.
The material was provided in order to address and corroborate the applicant's claims. The Authority is said to have failed to have regard to all such material considerations in determining whether to consider the new information under the provisions of s.473DD.[37]
[37] AUS17
As stated by White J in BVZ16 and the Full Federal Court in BBS16, the requirements of subparagraphs (a) and (b) of s.473DD are "cumulative but may nevertheless overlap". The provisions are said to require not only a factual enquiry as to whether or not the new information could have been presented to the Minister, but also an evaluation of the significance of the new information.
The applicant also submits that the Authority erred in focussing its attention only on whether an explanation was forthcoming from the applicant as to whether the new information was "credible personal information". He submits that he provided information that addressed the question of his relationship with N and whether she was his sister and whether he had any sisters. The information clearly is "personal" and the information, which was not previously known by the Minister, clearly may affect the consideration of the applicant's claims had it been previously known. The applicant submits that the Authority can determine for itself whether the information satisfies s.473DD(b)(ii) after it conducts an evaluation of the significance of the new information in the context of the applicant's claims more generally. The applicant submits that the phrase "not previously known" in s.473DD(b)(ii) refers to both the Minister or the delegate whose decision might have been affected,[38] whereas the approach adopted by the Authority shifted the onus onto the applicant to demonstrate and explain why the information was "credible personal information", and in the absence of any such explanation from the applicant, the Authority did not perform its statutory task.
Minister’s contentions
[38] BBS16 at [106]
Grounds 1 and 3
In Ground 1, the applicant asserts that the Authority “acted unreasonably under s.473DD in finding that the evidence provided to the Authority relating to the applicant’s biological sister was new information and thereby fell into jurisdictional error”. In particular (e) to this ground, the applicant states that the material that he gave to the Authority was “evidence provided to rebut the delegate’s finding that [he] does not have a biological sister.” The evidence comprised the following:
a)the affidavit made by N;[39]
b)documents relating to that person’s migration status in the United Kingdom;[40]
c)an affidavit made by the applicant’s mother on 5 September 2016;[41]
d)birth certificates of the applicant[42] and his brother;[43] and
e)a DNA test report dated 30 September 2016.[44]
[39] CB 379-380
[40] CB 381-383
[41] CB 385-386
[42] CB 387-388
[43] CB 389-390. The birth certificate of the person said to be the applicant’s sister (CB 391-392) did not comprise new information: CB 408 at [6]
[44] CB 401 (together, New Material)
In his submissions, the applicant asserts that the Authority made the jurisdictional errors identified by White J in BVZ16 at [34]-[37] and [46]-[47] with respect to the New Material. Put another way, in his written submissions the applicant appears to accept that the New Material did, in fact, satisfy the definition of “new information” in s.473DC(1). The Minister therefore responds to Ground 1 on the basis that the applicant is not asserting that the Authority erred in law, in some unspecified way, by characterising the New Material as new information.
There are a number of difficulties with the applicant’s reliance on BVZ16.
First, the Authority found[45] that the applicant had not complied with the Practice Direction, issued pursuant to s.473FB of the Migration Act, a copy of which had been given to the applicant on 31 August 2016.[46]
[45] at CB 408 at [8]
[46] CB 369-372
Paragraphs [23] and [24] of the Practice Direction provided as follows:
If you want to give us new information, you must also provide an explanation 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.
Your explanation should be no longer than 5 pages and must accompany any new information you give to us.
It is clear, therefore, that the Authority found that the applicant had not complied with [23]-[24] of the Practice Direction. Having done so, the Authority was empowered not to accept the New Material.[47] The Minister contends that the applicant has not challenged that decision in these proceedings. The Authority’s power not to accept the new information is confirmed by ss.473DB(1)(a) and 473DC(2). The fact that the Authority did not refer, specifically, to these provisions in its reasons is said to be immaterial. The power existed at the relevant time and the precondition to its valid exercise, namely, non-compliance with the Practice Direction, is said to have been met. It is well-established that a mistake by an administrative decision-maker as to the source of power to do an act will not invalidate the act, so long as a power to do the act was available at the time and all conditions antecedent to its valid exercise were satisfied.[48]
[47] section 473FB(5)
[48] see, for example, R v Bevan; Ex parte Elias and Gordon (1942) 66 CLR 452 at 487 per Williams J; Lockwood v Commonwealth (1954) 90 CLR 177 at 184 per Fullagar J; Australian Broadcasting Tribunal v Saatchi & Saatchi Compton (Vic) Pty Ltd (1985) 10 FCR 1 at 9 per Bowen CJ, 17 per Fox J, 23 per Wilcox J; Commissioner of Taxation v Cripps & Jones Holdings Pty Ltd (1987) 17 FCR 55 at 62-63 per Bowen CJ, Fox and Burchett JJ; Federation of Australian University Staff Associations v Academic Salaries Tribunal (1985) 19 FCR 397 at 405 per Evatt, Neaves and Wilcox JJ; Brown v West (1990) 169 CLR 195 at 203 per Mason CJ, Brennan, Deane, Dawson and Toohey JJ; Johns v Australian Securities Commission (1993) 178 CLR 408 at 426 per Brennan J; Mercantile Mutual Life Insurance v Australian Securities Commission (1993) 40 FCR 409 at 412-413 per Black CJ; Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318 at 362 [124] per Heydon J; Chief Executive Centrelink v Aboriginal Community Benefit Fund Pty Ltd (2016) 248 FCR 236 at 256 [91] per Griffiths J (with whom Perram J and Mortimer J agreed at 241 [22] and 261-262 [114], respectively)
The Minister submits that, read fairly and in context, therefore, the Authority’s reasons at [8][49] ought to be treated as those that it gave to justify its non-acceptance of the New Material. This alone is said to be sufficient to meet Ground 1. It is also said to be sufficient to meet Ground 3, which asserts that the Authority “adopted an unduly narrow construction of s.473DD by confining its determination of the new information to whether or not the applicant provided an explanation in accordance with the Practice Direction”.
[49] CB 408
Secondly, the Authority’s findings in the first sentence at [8][50] fed into its conclusion, at [9],[51] that the applicant had not satisfied it of the matters described in s.473DD(b). That conclusion is separate from, and independent of, the conclusion stated in the second sentence in [8].[52]
[50] CB 408
[51] CB 409
[52] CB 408. Cf VBAP of 2002 v Minister for Immigration [2005] FCA 965 at [32]-[33] per North J; VCAD v Minister for Immigration [2005] FCAFC 1 at [23] per Gray J
The applicant criticises the Authority’s findings at [8],[53] claiming that the explanation as to why the New Material was not given to the Minister before a decision was made under s.65 was “self-evident”. That criticism is said to be no more than an appeal to the merits. In any case, the applicant was on notice, at the hearing conducted on 26 May 2016, that the delegate had reservations not only about his claim regarding his sister, but also as to whether he did, in fact, have a biological sister. Those reservations were based, in part, on the applicant’s own evidence, which he gave during the entry interview, that he had no siblings other than a brother.[54] The applicant was at liberty to provide the New Material to the delegate between 26 May and 19 August 2016. He failed to do so.
[53] CB 408
[54] CB 343 at [35]
Thirdly, contrary to the applicant’s submissions, the reasoning in BVZ16 at [46]-[47], which concerned the range of matters to which regard may be had when determining whether there exist exceptional circumstances to justify consideration of new information,[55] is said not to be apposite in the present case, as the Authority did not make a finding on that criterion with respect to the New Material. For this reason, too, the issue raised in Ground 3 is said not to arise on the facts of the present case.
[55] cf s.473DD(a)
Ground 3
In this ground, the applicant contends that the Authority “confined its consideration of whether there were exceptional circumstances to the evaluation of the applicant’s explanation for not having provided the information earlier”.[56]
[56] applicant’s further submissions at [6]
The Minister submits that the applicant faces the following difficulties.
First, the applicant’s argument is said to overlook the fact that the Authority’s decision not to consider the new information provided by the applicant turned on his not having satisfied the Authority of the matters described in s.473DD(b). The Authority made no finding in respect of the criterion in s.473DD(a). In those circumstances, it is difficult to say, as the applicant does, that the Authority’s assessment of whether there existed exceptional circumstances to justify consideration of the new information was confined to temporal matters.
Contrary to the applicant’s submissions, none of the relevant cases that bind this Court[57] stand for the proposition that the Authority must, as a condition of the proper exercise of its jurisdiction, consider, and make findings upon, both ss.473DD(a) and (b), at least where new information is provided by a referred applicant (or by somebody on his or her behalf). Nor is that proposition supported by this Court’s judgment in AUS17, in which it was held that the Authority had made a jurisdictional error by adopting an unduly narrow interpretation of the expression “exceptional circumstances” in s.473DD(a).[58] In this connection, the Minister seeks to clarify that, in BVZ16 at [36], White J did not hold that it is a jurisdictional requirement for both limbs of s.473DD to be considered. To make good this submission, it is necessary to examine closely both White J’s reasons and those given by the primary judge. It will be recalled that White J stated the following at [36]:
… I respectfully disagree with the conclusion of the FCC Judge on this point. In my opinion, the FCC Judge erred in failing to find that the IAA had considered only the subpara (a) requirement. The FCC Judge had accepted (at [23]) that it would have been erroneous for the IAA not to have considered the subpara (b) requirement. It follows that the FCC Judge should have found jurisdictional error by the IAA in failing to discharge the task of review imposed by s 473DB(1).
(emphasis retained)
[57] BVZ16; BBS16 and CHF16 v Minister for Immigration [2017] FCAFC 192
[58] see also DVF16 v Minister for Immigration & Anor [2017] FCCA 2778. In that case, this Court held that the Authority, in deciding whether to consider new information that had been provided to it, did not have regard to anything other than “the temporal question” and, in particular, “the corroborative value” of the new information
In this Court, the primary judge relevantly stated the following:[59]
If indeed the IAA had not considered whether s.473DD(b) had been satisfied, as the applicant contended, then its decision would have been erroneous because the matters to which that paragraph refers are, by virtue of the terms of that section, ones which the IAA is obliged to consider when dealing with “new information”. However, the IAA’s discussion of the applicant’s explanations for not having disclosed the new information at the application stage reveals an appreciation of the requirements of s.473DD(b) and, in particular, s.473DD(b)(i). … The IAA’s conclusion that the requirement in s.473DD(b)(i) had not been met was an independent basis for affirming the delegate’s decision. …
Consequently, it is not necessary to consider the applicant’s argument that the IAA’s finding as to the absence of exceptional circumstances was erroneous. …
(emphasis retained)
[59] BVZ16 v Minister for Immigration & Anor [2017] FCCA 775 at [23]-[24]
Earlier, at [21], the primary judge observed that the applicant had submitted that, while the Authority “discussed his explanations for not having disclosed the new information earlier than he had, it had not articulated express conclusions as to whether that information could not have been provided earlier, was credible and had not been previously known.”[60]
[60] at [21]
When the primary judge’s reasons are read as a whole, it is clear that his Honour did not hold that the Authority must consider, and make findings upon, both ss.473DD(a) and (b) before it can decide not to consider new information. On the contrary, the fact that his Honour considered it unnecessary to determine the question whether the Authority’s finding in relation to the existence of exceptional circumstances was erroneous fortifies the Minister’s construction of s.473DD.
White J’s reasons at [36] must be read in the light of what the primary judge stated. Indeed, there is some support for the Minister’s construction later in White J’s reasons, at [48], where his Honour held that the primary judge made an appellable error by not finding jurisdictional error on the part of the Authority for misconstruing s.473DD(a). The finding of jurisdictional error in [36] could only be correct if it were assumed, as the Minister argues his Honour did in that paragraph, that s.473DD(a) had been misconstrued by the Authority.
In any event, in none of BVZ16, BBS16 or CHF16 was the Federal Court confronted with a case in which the Authority had considered, and made findings on, the matters described in s.473DD(b). Each supports the proposition that the Authority’s satisfaction (or lack thereof) that new information could not have been provided to the Minister at the time of the decision made under s.65 or that the new information is credible personal information which was not previously known may contribute to its satisfaction that there are exceptional circumstances to justify consideration of the new information. None says anything about, or supports, the inverse proposition, that is, that the factors going to the existence of exceptional circumstances may contribute to the Authority’s satisfaction in respect of the matters described in s.473DD(b).
Secondly, the applicant treats the Authority’s decision record as comprising the reasons for the Authority’s conclusion at [9][61] that it was not satisfied in relation to the matters set out in s.473DD(b). However, the Authority is not under a duty to give reasons as to why it is, or is not, satisfied of the matters described in s.473DD. Section 473EA(1)(b) of the Migration Act and s.25D of the Acts Interpretation Act 1901 (Cth) (Acts Interpretation Act), require the Authority to “se[t] out the reasons for the decision” and to “se[t] out the findings on material questions of fact and refer to the evidence or other material on which those findings were based”, respectively. Each, however, imposes an obligation on the Authority with respect to its ultimate decision on the review, not to procedural or antecedent decisions made throughout the review.[62] It should be noted that this question was raised in argument, but not determined by the Full Court, in CHF16 at [49].
[61] CB 409
[62] cf, in relation to s.430 of the Migration Act, Minister for Immigration v Yusuf (2001) 206 CLR 323 at 346 [68]-[69] per McHugh, Gummow and Hayne JJ, 390-392 [216]-[217], 396 [235] per Callinan J
If this construction of s.473EA(1) of the Migration Act and s.25D of the Acts Interpretation Act were correct, the consequences are said to be as follows:
a)the Court cannot infer that what is contained in the Authority’s decision record constitutes, or was intended to constitute, a comprehensive statement of the matters considered by the Authority with respect to the matters described in s.473DD(b)(ii).[63] Absent a duty to give reasons for any decision made under s.473DD, the Authority is not required to identify, canvass or discuss in its statement of reasons what it did, or did not, take into account in determining whether the criterion in s.473DD(b) has been satisfied. While the Court may, of course, draw inferences from what the Authority has said, to conclude that the Authority did not consider anything other than what is set out in [4]-[5] and [7]-[8][64] presupposes that the Authority was under a statutory duty to set out all of the reasons for its non‑satisfaction of the circumstance described in s.473DD(b)(ii). Such a duty, however, does not exist; and
b)relatedly, there may be reasons to support the Authority’s finding at [9][65] that have not been stated.[66] Put another way, the Court cannot infer from an absence of reasons that the Authority had no good reason for that finding.[67] Thus, the Authority may have considered that the new information in question was not “credible”, but that it was not necessary to state the reasons why. The Authority may have reached that view in the light of its serious concerns with respect to the applicant’s credibility[68] and the various inconsistencies in his claims concerning his family members.[69] Or there may have been other reasons for that conclusion. Whatever those other reasons may have been, they were not required to be stated. While the Authority did refer, at [8][70], to the fact that the applicant had not given any reasons why the Authority should be satisfied of the matters in s.473DD(b), it may have chosen to do so merely to highlight the applicant’s non-compliance with the Practice Direction – the consequence of which enlivens the Authority’s power in s.473FB(5).
[63] Minister for Immigration v SZGUR (2011) 241 CLR 594 at 605-606 [31]-[32] per French CJ and Kiefel J (as her Honour then was), 623 [91] per Heydon J and 623 [92] per Crennan J; SZREO v Minister for Immigration [2012] FMCA 1189 at [69]-[70] per Barnes FM (as her Honour then was)
[64] CB 408
[65] CB 409
[66] Hu v Minister for Immigration [2004] FCAFC 63 at [13], [18] per Hill and Marshall JJ
[67] Vishnumolakala v Minister for Immigration [2007] FCA 248 at [13] per Finn J; Vishnumolakala v Minister for Immigration (No.2) [2007] FCA 594 at [3] per Finn J
[68] CB 411 at [22]
[69] CB 412 at [23]-[28]
[70] CB 408
Thirdly, the Minister submits that, before the Authority can make a finding in a referred applicant’s favour in respect of the circumstances described in s.473DD(b), the applicant must satisfy the Authority of those matters. It is notable that the opening words of s.473DD(b) use the active voice and require the referred applicant actively to take certain steps. Thus, the referred applicant would need to articulate the reason(s) why new information provided to the Authority is “credible” and which, “had it been known, may have affected the consideration of [his or her] claims”. If a referred applicant has not gone some way to articulating the reasons why the Authority should be so satisfied, his or her ability to persuade the Authority is, at the very least, significantly weakened. At worst, the failure to advance such reasons may well be sufficient, in itself, for the Authority to conclude that the applicant has not satisfied the Authority of the matters in s.473DD(b), though it may not be necessary to decide this question on the facts of the present case.
Resolution
It is appropriate to begin with Ground 3 in the further amended application. As I indicated to the parties in oral argument, the first ground adds little to the third ground. Further, if jurisdictional error is established in the third ground, the first ground need not be considered. Conversely, if no jurisdictional error is established by the third ground, it is hard to envisage how the first ground could succeed.
The material facts
The applicant's claims for a protection visa included a claim that N was a member of the LTTE who had engaged in combat during the last phase of the war in Sri Lanka. He claimed that since his arrival in Australia in November 2012 he had learnt that N had been gang raped by Sri Lankan Army soldiers in January 2013. He claimed that the incident had been covered in the media. N fled to the United Kingdom and was residing there. She had been targeted by the authorities in 2013 once they became aware of her involvement with the LTTE after she was released from an IDP[71] camp. The applicant claimed that he was at risk of torture because of his relationship with N, which placed him at risk of being assumed to have also been involved with the LTTE.[72]
[71] Internally Displaced Persons
[72] CB 337, 339
As stated above at [8], The applicant's application for a SHEV was refused by the delegate on 19 August 2016.[73] The reasons for the refusal are set out at CB 335-358.
[73] CB 331
The delegate conducted a hearing and the applicant produced to the delegate a copy of the birth certificate of N who was living in the UK. He also produced to the delegate two interview recordings of N, whom the applicant claimed was his sister who sought refuge in the UK.
The delegate was not satisfied that the applicant had any biological sisters because he had not mentioned them at the arrival interview, his responses regarding N lacked details, and the birth certificate of N contained inconsistencies with his own birth certificate.[74] The delegate noted that document fraud was prevalent in Sri Lanka and therefore placed no weight on the document produced by the applicant as his sister's birth certificate.
[74] CB 344-345 at [43]-[45]
The delegate also did not accept that the applicant had any biological sisters or that one of them was a former LTTE combatant,[75] and so did not proceed to consider whether he would face any risk of either serious or significant harm for reason of his relationship with N.
[75] CB 345-346 at [48]
The decision to refuse the visa was then referred to the Authority on 31 August 2016.
The applicant was sent a copy of the Practice Direction dated 21 April 2016.[76]
[76] CB 369-372
The applicant appointed a new representative on 1 September 2016.[77]
[77] CB 374
The applicant's new representative informed the Authority on 5 September 2016 that the applicant intended to provide an affidavit from N explaining her claims and her relationship with the applicant and also exploring the possibility of a DNA test to establish the relationship.[78]
[78] CB 375
The following further information was provided to the Authority prior to its decision:[79]
a)a medical report from Dr Malcolm Hughes, specialist surgeon and accredited endoscopist;
b)an affidavit of N sworn on 6 September 2016 attesting to her sibling relationship with the applicant and the circumstances of her seeking asylum in the UK;
c)a letter from the UK Home Office dated 26 March 2015 confirming that N had been granted asylum in the UK;
d)N’s UK registration card with a photo of her;
e)an affidavit from the applicant's mother setting out the correct dates of birth of herself and the applicant's father, and the identity of the applicant’s siblings and their respective dates of birth;
f)certificates of birth of the various members of the applicant's family; and
g)a DNA test dated 30 September 2016 attesting to the siblingship of the applicant and N.
[79] CB 377-401
The decision of the Authority in respect of the new information
The decision of the Authority is at CB 407. The Authority affirmed the decision not to grant the applicant a protection visa.
The Authority noted at [3] that it had regard to the material referred to it by the Secretary under s.473CB of the Migration Act.
It then set out at [4]-[5] the information, which had been provided to it by the applicant's representative.
The Authority determined that the information set out above in [83(b)-(g)] constituted "new information". At [7] of its decision, the Authority stated that the delegate had explained to the applicant and his representative that there were limits on the Authority's ability to consider new information and that further information may be taken into account if provided before it made a decision.
At [8]-[9] the Authority stated:
The applicant has not advanced reasons why the information could not have been provided before the delegate made a decision, nor is there an explanation why the information is credible personal information which was not previously known and may have affected consideration of the applicant's claims had it been known. The new information does not therefore comply with the Practice Direction of May 2016 made under s.473FB of the Act (the Practice Direction). I also note that the DNA information was provided well outside the period specified in the Practice Direction.
Having regard to the information before me, I am not satisfied in relation to the matters set out in s.473DD(b) of the Act and am prevented from considering the new information.
Did the Authority err by not considering s.473DD(a)?
The Authority’s reasons are silent on whether there were any exceptional circumstances to justify considering the new information. Notwithstanding the Minister’s submissions concerning the lack of an obligation to give reasons as to its satisfaction in relation to the matters dealt with in s.473DD, the Authority has given reasons about its lack of satisfaction in relation to s.473DD(b). Its silence as to s.473DD(a) supports the inference that it did not consider that provision was material. That is logical as paragraphs (a) and (b) of s.473DD impose cumulative obligations on an applicant. If an applicant cannot satisfy the Authority as to (a) or (b), the Authority cannot accept the proffered new information. It logically follows that if the Authority is not satisfied as to the matters dealt with in s.473DD(b) it may consider the question of exceptional circumstances to be immaterial.
I accept the Minister’s submissions that there is no authority binding upon this Court that there is an obligation on the Authority to consider both ss.473DD(a) and (b) before deciding whether to receive new information. In particular, I accept the Minister’s submissions concerning the correct interpretation of BVZ16 set out above at [64]-[68]. Further, the Full Federal Court in CHF16 at [46] specifically left open the question. As is noted in the Minister’s submissions, the authorities to date have focussed on the scope of s.473DD(a) rather than (b). While it is established that a finding of exceptional circumstances under s.473DD(a) may be informed by the consideration of the factors set out in s.473DD(b), the reverse proposition does not necessarily follow. Much would depend upon the circumstances of the particular case.
In the present case, the applicant did not advance any exceptional circumstances supporting the acceptance of the new information. The focus of the Authority’s attention was in my view appropriately on the considerations set out in s.473DD(b). The Authority was not satisfied as to those matters and in my opinion it did not err in not considering whether there were any exceptional circumstances.
Did the Authority misconstrue s.473DD(b)?
In my opinion, the Authority did misconstrue s.473DD(b) in three respects. First, the Authority found that the applicant had not advanced reasons why the information is credible personal information which was not previously known and may have affected consideration of the applicant’s claims had it been known. This finding betrays a misunderstanding that the relevant person who was unaware of the new information was not the applicant, but rather, the Minister. The applicant would not know what the Minister did or did not know, apart from what he had provided, and it was self-evident that the applicant had not furnished the new information to the Minister previously.
Secondly, it was also self-evident that the new information, particularly the result of the DNA test, was, on its face, credible personal information which may have affected the consideration of the applicant’s claims had it been known. As I stated in DVF16 at [25]-[26], an applicant does not have to explain the blindingly obvious to the Authority, where the explanation for the provision of the new information plainly stems from the decision of the delegate and inheres in the information itself. In any event, the applicant’s representative, in her letter dated 5 September 2016, put the Authority on notice that a DNA test was being proposed to prove that the applicant and N are siblings.
It is true that the delegate put the applicant on notice at the hearing that he had doubts about the applicant’s claims concerning N, extending to whether she was truly the applicant’s sister. The applicant might have provided further corroborative information to the delegate between the hearing on 26 May 2016 and the delegate’s decision on 19 August 2016. That was a relevant consideration for the Authority and, indeed, was referred to by the Authority at [7] of its reasons.
However, it is apparent on the face of the DNA test report that that information did not exist until the report was created on 30 September 2016, well after the delegate’s decision, and following the apparent provision of DNA samples from the applicant and N, located on opposite ends of the world.
Thirdly, the Authority erred by conflating the requirements of s.473DD(b) with the requirements of the Practice Direction made under s.473FB of the Migration Act. I was not taken to any authority on the interpretation of s.473FB(5), let alone the inter-relationship, if any, between that provision and s.473DD. There is nothing in s.473DD(b) which renders non compliance with the Practice Direction a relevant consideration. The Authority’s reasons, however, identify that purported non compliance as the principal (and perhaps the only) reason why it was not satisfied as to the matters set out in s.473DD(b).
It is true that s.473FB(5) provides that the Authority is not required to accept new information from a person who fails to comply with a relevant direction but that provision, in my view, goes to an antecedent discretion[80] whether to embark upon the consideration required by s.473DD, which in turn is a qualified prohibition on the receipt of new information. In other words, the Authority has a discretion, enlivened by a finding of a failure to comply with a relevant direction, whether to embark upon the consideration of s.473DD at all. By embarking upon that consideration, the Authority had, in my opinion, moved beyond the exercise of that antecedent and non compellable discretion.
[80] as adumbrated by counsel for the Minister at the trial in oral submissions
Further, the argument that s.473FB(5) has some bearing upon the consideration under s.473DD assumes that there is a relevant direction. In my view, the obligation imposed by the Practice Direction to provide an explanation for the provision of information is not relevant where that explanation is self evident and inheres in the information itself.
The DNA test was furnished outside the time period specified in the Practice Direction. The simple answer to that concern is, however, that the DNA report could not be provided before it existed. Further, and in any event, the Authority was notified well within the period specified in the Practice Direction of an intention to provide the DNA report.
The errors made by the Authority in its application of s.473DD(b) go to jurisdiction. Jurisdictional error having been established by Ground 3, it is not necessary to consider Ground 1.
Conclusion
The applicant has succeeded in establishing that the decision of the Authority is affected by jurisdictional error. He should receive the relief he seeks.
I will hear the parties as to costs.
I certify that the preceding one hundred and two (102) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 14 March 2018
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