DKF17 v Minister for Immigration
[2019] FCCA 723
•7 June 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DKF17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 723 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Bangladesh – applicant not believed – whether the Authority applied the correct test under s.473DD of the Migration Act 1958 (Cth) or whether the Authority failed to complete its task of review considered – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.5, 5H, 36, 473BB, 473DA, 473DC, 473DD, 473EA, 473GA, 473GB |
| Cases cited: Allesch v Maunz (2000) 203 CLR 172 AQU17 v Minister for Immigration [2018] FCAFC 111 AUH17 v Minister for Immigration [2018] FCA 388 BCQ16 v Minister for Immigration [2018] FCA 365 BVZ16 v Minister for Immigration (2017) 254 FCR 221 CHF16 v Minister for Immigration [2017] FCAFC 192 CIH16 v Minister for Immigration [2018] FCA 1317 CSR16 v Minister Immigration [2018] FCA 474 EAA16 v Minister for Immigration & Anor [2018] FCCA 2624 FKQ17 & Ors v Minister for Immigration & Anor [2018] FCCA 1281 Minister for Immigration v BBS16 [2017] FCAFC 176 Minister for Immigration v CLV16 [2018] FCAFC 80 Minister for Immigration v CQW17 [2018] FCAFC 110 Minister for Immigration v CRY16 [2017] FCAFC 210 Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 Plaintiff M174/2016 v Minister for Immigration (2018) 353 ALR 600 R v Kelly [1999] UKHL 4; [2000] QB 198 |
| Applicant: | DKF17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 2407 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 22 March 2019 |
| Date of last submissions: | 12 April 2019 |
| Delivered at: | Sydney |
| Delivered on: | 7 June 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr P Bodisco |
| Solicitors for the Applicant: | ABU Legal |
| Solicitors for the Respondents: | Mr J Lambe of HWL Ebsworth |
ORDERS
The further amended application filed on 29 March 2019 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2407 of 2017
| DKF17 |
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 26 July 2017. 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 initial written submissions filed on behalf of the Minister on 15 March 2019.
The applicant is a male citizen of Bangladesh. The applicant's initial claims were set out in his temporary protection visa application and supporting statement received by the Minister’s Department on 21 April 2016.[1] The applicant claimed that his father was a member of the Bangladesh National Party (BNP), and that from a young age he used to witness meetings in his family's home between his father, grandfather and uncle, and other important political leaders.
[1] Court Book (CB) 7
The applicant claimed that he wanted to be part of politics from a young age, however, owing to different views to that of his father, he had been attracted to the ideals of the Bangladesh Awami League (AL). The applicant claimed that he was the secretary of the AL's Student League (Chattra League[2]), and that his popularity amongst the grassroots level workers and supporters led to other AL leaders attempting to push the applicant to resign, in addition to death threats. He claimed that he had moved from the Kalihati region to Dhaka but had been recognised by AL leaders there, who subsequently tried to kill him.
[2] inconsistently also spelt Chhatra and Chatra
On 20 December 2016 the delegate refused to grant the temporary visa application.[3] In light of objective country information, the delegate accepted some of the applicant's claims. The delegate accepted that the applicant was a supporter of the AL but not a member, that the applicant had been kidnapped by unknown people, that the applicant had been attacked by unknown people and hospitalised as a result, and that the applicant had spent two years in Malaysia before making the journey to Australia.
[3] CB 102
The delegate rejected the applicant's claims with respect to the role he had in the Chattra League and any subsequent threats he experienced as a result, and considered that there was no real chance that the applicant would be persecuted due to his profile as a person in favour of the AL.
Authority decision
On or about 5 January 2017, the decision of the delegate was referred to the Authority.[4]
[4] CB 214
On 27 January 2017, the applicant's representative provided submissions and documents to the Authority for consideration.[5] In a case note dated 30 January 2017, a member of the Authority noted that she called the applicant's representative and told him that it seemed that he had attached a submission that related to another applicant.[6] On the same date, the applicant's representative sent by way of email, further submissions and documents in relation to the applicant.[7]
[5] CB 227
[6] CB 243
[7] CB 244
The Authority affirmed the delegate's decision to refuse to grant the visa.[8] It considered the information provided to it.[9] The Authority initially addressed the fact that the applicant's representative had sent it material relating to a different applicant. Although the representative subsequently provided material in respect of the applicant, the Authority made note of the “considerable similarities in the wording” of some parts of these documents.[10]
[8] CB 256
[9] CB 257 from [3]
[10] CB 257 at [3]
The Authority considered the information provided to it, and noted that some elements of the submissions repeated the applicant's claims and explanations to the delegate, in addition to providing argument relating to the weight given by the delegate to certain information.[11] The Authority ultimately found that the submissions and accompanying material were new information,[12] however, it was not satisfied that exceptional circumstances existed to justify considering that information.[13]
[11] CB 257 at [4]
[12] CB 257 at [4]
[13] CB 257 at [5]
While accepting that the applicant may have had some low-level involvement with the AL, the Authority found that the applicant had exaggerated his profile within that party and fabricated past incidents of harm.[14] In light of the credibility findings, the Authority was not satisfied that he had ever been harmed because of his political involvement or that he was a person of any adverse interest to any persons in Bangladesh at the time of this departure.[15] The Authority found that the applicant did not meet the requirements of the definition of “refugee” under s.5H(1) of the Migration Act 1958 (Cth) (Migration Act), and did not meet s.36(2)(a).[16]
[14] CB 263 at [26]
[15] CB 263 at [26]
[16] CB 264 at [33]
The Authority considered complementary protection from [34] of its decision,[17] and in light of its credibility findings, the Authority was not satisfied that the applicant's family difficulties and the consequences of this would entail a level of pain, suffering or humiliation such as required under s.5(1) of the Migration Act, or that they would otherwise amount to significant harm within the meaning of s.36(2)(aa). Having considered the applicant's claims and circumstances both individually and cumulatively, the Authority was not satisfied that there was a real risk of him suffering significant harm.[18]
[17] CB 264
[18] CB 265 at [39]
The current proceedings
These proceedings began with a show cause application lodged on 31 July 2017. The application has been amended several times since then. An amended application was produced but not filed. Ultimately, the applicant relied upon a further amended application filed by leave on 29 March 2019. There are two grounds in that application:
Ground One:
The [Authority] has failed to apply the correct test.
Particulars:
The [Authority] breached section 473DD of the Migration Act 1958 (Cth) in dealing with submissions advanced by the Applicant in determining whether “exceptional circumstances” exist by effectively failing to take into account the matters referred to in section 473DD(b)(ii) of the Act.
Ground Two:
The [Authority] failed to complete the task of jurisdiction embarked upon.
Particulars:
By failing to take into account submissions filed on behalf of the Applicant and/or misdirecting itself that [the] submissions were “new information”, the [Authority] has failed to complete the task of jurisdiction embarked upon.
I have before me as evidence the court book filed on 15 February 2018. The applicant and the Minister both prepared pre-hearing written submissions and, pursuant to leave granted at the trial, they also filed additional post-hearing submissions.
Consideration
In relation to the first ground in the further amended application, the applicant submits as follows.
In dealing with submissions advanced by the applicant and contained at CB 245, the Authority held at [5]:[19]
The submission and material purport to address adverse credibility findings made by the delegate regarding the applicant's involvement with the Chatra League and particularly his claim to have held the role of secretary. It is evident from the recording of the TPV interview on 23 November 2016 that the applicant was clearly on notice that these claims were in doubt. Further, the applicant was told at that interview that if he did not give the Department of Immigration and Border Protection (the Department) all relevant information and his application was refused, he may not have another chance to provide the information. He was advised on completion of the interview that he could send anything further to the delegate until the time a decision was made. Although the applicant did not have a migration agent present at the interview, he was represented in the TPV application by the same migration agent who now represents him before the IAA. I am not satisfied that there are any exceptional circumstances to justify considering the new information.
[19] CB 257
It is said to be clear by a fair reading of this analysis that the Authority has concerned itself solely with the criterion contained in s.473DD(b)(i). The Authority has held that the new information could have been provided to the Minister.
There is, however, no reference to the alternative criterion anticipated by s.473DD(b)(ii).
The submission referred to is a six page document contained in the court book:[20]
[20] CB 245
a)the document is initially in first person, addressed to the Authority from the applicant, and later changes “tense”;[21]
[21] CB 246
b)the document responds to findings as made by the delegate, in particular adverse credibility findings made regarding his knowledge of and commitment to the AL;[22]
c)the document contains new information by reference to a document sourced as "Political parties in Bangladesh CPM - CMI Working Paper Series" on:
i)the lack of ideological distinction between the political parties in Bangladesh - a response to credibility concerns held by the delegate;[23]
ii)the AL’s fluid commitment to secularism - a response to credibility concerns held by the delegate;[24]
iii)the applicant's status as Secretary of the Chattra League and low education - a response to credibility concerns held by the delegate;[25]
iv)the applicant's explanation as to why he provided erroneous answers to questions about party membership; and an explanation as to the level of disorganisation in the party organisation which thwarted his ability to obtain corroborative information, drawn from a document "Political Parties in South East Asia: The Challenge of Change Page 132-133";[26]
v)the applicant's response to concerns about his level of "organisational capacity" - a response to credibility concerns held by the delegate;[27]
vi)observations from the document titled "CPM-CMI Working paper series, Page 43" regarding the distinction between the political parties’ manifestos and policies in practice;[28] and
vii)observations drawn from a web site regarding the general lack of literacy among the membership of political parties - a response to credibility concerns held by the delegate.[29]
[22] CB 245
[23] CB 246
[24] CB 246
[25] CB 246
[26] CB 247
[27] CB 248
[28] CB 248
[29] CB 248
It is said to be clear that the information turns on matters regarding the applicant's credibility and on issues relevant to his claim to have been a party member of some prominence in the AL. It is also said to be clear that the applicant was relying on objective material which may be regarded as credible.
The applicant invites the Court to infer that the material responds to concerns raised by the delegate, and therefore may be regarded as not "previously known".
Finally, as the material is said to go to the credibility issues which were ultimately determinative of the adverse findings made by the delegate, their consideration may have "affected the consideration of the referred applicant's claims".
In Plaintiff M174/2016 v Minister for Immigration,[30] the plurality (Gageler, Keane and Nettle JJ) described the function of the Authority in the context of the statutory regime:[31]
Section 473CC(1) provides in that context that the Authority "must review a fast track reviewable decision referred to the Authority under section 473CA". Section 473CC(2) goes on to provide that the Authority may either "affirm the fast track reviewable decision" under s 473CC(2)(a) or "remit the decision for reconsideration in accordance with such directions or recommendations of the Authority as are permitted by regulation" under s 473CC(2)(b).
Notwithstanding the inability of the Authority to set aside a fast track reviewable decision and to substitute its own decision, the Authority when conducting a review of a fast track reviewable decision is not concerned with the correction of error on the part of the Minister or delegate but is engaged in a de novo consideration of the merits of the decision that has been referred to it. The task of the Authority under s 473CC(1) is to consider the application for a protection visa afresh and to determine for itself whether or not it is satisfied that the criteria for the grant of the visa have been met. The powers conferred on the Authority by s 473CC(2) then enable the Authority to make orders appropriate to give effect to the outcome of its own determination of the merits. If the Authority is not satisfied that the criteria for the grant of the visa have been met, the appropriate order for the Authority to make is to affirm the decision under review. If the Authority is so satisfied, and the Authority has found no other statutory impediment to the grant of the visa, the appropriate order for the Authority to make is to remit the decision for reconsideration by the Minister in accordance with such permissible directions or recommendations as the Authority considers are appropriate to give effect to the Authority's determination.
[30] (2018) 353 ALR 600
[31] at [16]-[17]
The applicant contends that Part 7AA contains no express statutory constraint upon a party's ability to participate in the review process by way of making submissions; nor in his submission is any such constraint necessarily to be implied. The ability at least to make a submission and the minimal (but nevertheless fundamentally important) procedural protection thereby provided, as opposed to a freedom to supplement the facts to be taken into account without there being “exceptional circumstances” (s.473DD), does not frustrate or impede the legislative objective sought to be achieved by Part 7AA and the provision of a “limited form of review”. An opportunity to make submissions, together with an opportunity to “present material information”, forms part of a “principle [that] lies deep in the common law” and is an “indispensable requirement of justice”.[32]
[32] cf. Allesch v Maunz (2000) 203 CLR 172 at 184 [35] per Kirby J
The applicant submits that a legislative constraint upon the ability to provide information should not be readily construed as extending to a constraint upon the separate procedural protection of the right to make "submissions". The continuing ability to make "submissions", as opposed to an ability to provide additional factual material other than in "exceptional circumstances", provides a claimant with a final opportunity to make submissions as to why (for example) different factual findings should be made upon the existing material or why adverse findings as to credit made by a delegate were misplaced.
Section 473DC provides as follows:
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.
The applicant submits that s.473DC(l) confers a discretionary power; ie the Authority "may ... get any documents or information". Section 473DC(2) is expressed as a negative; ie the Authority "does not have a duty to get, request or accept, any new information". So expressed, s.473DC(2) leaves unconfined the discretionary power conferred by s.473DC(l) to "get any documents or information (new information) that ... the Authority considers may be relevant", other than the constraint that the discretion must be exercised in a manner which best promotes the object and purpose of the Migration Act as a whole and gives effect to (in particular) the fast track review process.
Section 473DD of the Migration Act provides as follows:
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.
The applicant notes that the two limbs of s.473DD(b) are expressed as alternatives.[33] In CSR16 Bromberg J concluded that “all that the ‘credible’ element of s.473DD(b)(ii) criteria requires is the Authority's satisfaction that the ‘new information’ is information which is open to be or capable of being accepted by the Authority as truthful (or accurate, or genuine). It is only at the deliberative stage of its review that the Authority will be required to determine whether or not the ‘new information’ is true”. [34] The criteria, it was said, are a “filtering mechanism”.[35] Previously, in CHF16 v Minister for Immigration[36] at [46], Gilmour, Robertson and Kerr JJ did not consider it “necessary” to consider whether there is an “obligation cast by s.473DD to consider and make findings upon both (a) and (b) once the Authority has found that either (a) or (b) was not satisfied”.
[33] CSR16 v Minister Immigration [2018] FCA 474 at [37]
[34] at [41]
[35] at [42]
[36] [2017] FCAFC 192
The applicant submits that ss.473DC and 473DD confine the circumstances in which the Authority may be called upon to consider "new information". Those circumstances were considered by Robertson, Murphy and Kerr JJ in Minister for Immigration v CRY16.[37] The issue also received the attention of the High Court in Plaintiff M174 where Gageler, Keane and Nettle JJ observed that:[38]
The term "new information" must be read consistently when used in ss.473DC, 473DD and 473DE as limited to "information" (which may or may not be recorded in a document), in the ordinary sense of a communication of knowledge about some particular fact, subject or event, that meets the two conditions set out in s.473DC(1)(a) and (b).
(footnote omitted)
[37] [2017] FCAFC 210 at [69]-[82]
[38] at [24]
The applicant submits that of more immediate concern to the present proceedings is s.473EA, a provision found within Division 4 of Part 7AA which is headed "Decisions of Immigration Assessment Authority". That section provides as follows:
Immigration Assessment Authority's decision and written statement
Written statement of decision
(1)If the Immigration Assessment Authority makes a decision on a review under this Part, the Authority must make a written statement that:
(a) sets out the decision of the Authority on the review; and
(b) sets out the reasons for the decision; and
(c) records the day and time the statement is made.
How and when written decisions are taken to be made
(2) A decision on a review is taken to have been made:
(a) by the making of the written statement; and
(b) on the day, and at the time, the written statement is made.
(3) The Immigration Assessment Authority has no power to vary or revoke a decision to which subsection (2) applies after the day and time the written statement is made.
Return of documents etc.
(4) After the Immigration Assessment Authority makes the written statement, the Authority must:
(a) return to the Secretary any document that the Secretary has provided in relation to the review; and
(b) give the Secretary a copy of any other document that contains evidence or material on which the findings of fact were based.
Validity etc. not affected by procedural irregularities
(5) The validity of a decision on a review, and the operation of subsection (3), are not affected by:
(a) a failure to record, under paragraph (1)(c), the day and time when the written statement was made; or
(b) a failure to comply with subsection (4).
The applicant relies on the recent Full Federal Court decision in Minister for Immigration v CQW17.[39] There, the Court considered in detail the reasons of White J in BVZ16 v Minister for Immigration[40] and the cases which have followed them. Their Honours expressed support for White J's reasons and clarified their application. The appellant relied upon a large portion of the Full Federal Court's reasons and it is appropriate to set out the relevant parts:[41]
[39] [2018] FCAFC 110 (McKerracher, Murphy and Davies JJ)
[40] (2017) 254 FCR 221
[41] [47]-[49]
Third, the Authority took an inappropriately narrow view of the breadth of the expression “exceptional circumstances”, and in doing so made a similar error to that identified in BVZ16 at [9] and [35]-[37] and the Full Court in BBS16 at [102]-[106].
In BVZ16 White J said (at [9]):
The requirements of subparas (a) and (b) are cumulative but may nevertheless overlap to some extent. The Authority's satisfaction that the new information could not have been provided to the Minister at the time of the s 65 decision (subpara (b)(i)) may contribute to its satisfaction that there are exceptional circumstances to justify considering the new information. So also may the Authority's satisfaction that the new information is credible personal information which had not previously been known (subpara (b)(ii)). Accordingly, one would expect the IAA to consider the subpara (b) matters when considering in a given case whether the circumstances are exceptional. Obviously enough, however, the matters which may contribute to a finding that the circumstances in a particular case are exceptional may extend beyond those specified in subparas (b )(i) and (ii) and it seems improbable that the Authority could be satisfied, by reference to one matter only, that an applicant's circumstances are not exceptional.
His Honour's view was affirmed in BBS16 at [102]-[103] (Kenny, Tracey and Griffiths JJ) and cited with apparent approval by the Full Court in CHF16 at [17]-[18] (Gilmour, Robertson and Kerr JJ) and DYS16 at [31]-[33] (Tracey, Murphy and Kerr JJ).
In BBS16 the Full Court said:
We are unpersuaded by the Minister's contentions that in BVZ16 White J misconstrued or misapplied the term "exceptional circumstances" under s 473DD. We respectfully agree with his Honour's reasons for concluding that the IAA in that case adopted an inappropriately narrow understanding of that phrase. In particular, we agree with his Honour's findings and reasons that the requirements of subparas (a) and (b) of s 437DD are cumulative but may nevertheless overlap to some extent, with the effect that the IAA' s consideration of either or both of the limbs in subpara (b) may inform the IAA's satisfaction under subpara (a) as to whether there are exceptional circumstances to justify considering the new information.
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.
(emphasis in CQW17 retained)
The applicant submits that the expression “exceptional circumstances” in subparagraph (a) has a broad meaning and it is not possible to state exhaustively what factors will be relevant or what the Authority must consider in a particular case.[42] The Authority is obliged to consider all relevant circumstances, and as White J observed in BVZ16, the matters in (b)(i) and/or (ii) will usually form part of the consideration. In the circumstances of the present case, the applicant submits that the Authority did not evaluate the significance of the relevant part of the new information, or turn its mind to whether it was credible personal information capable of informing its satisfaction as to the existence of exceptional circumstances. As held by Derrington J in CIH16 v Minister for Immigration,[43] on a fair reading of [6], the Authority's finding as to (b)(i) was decisive, and this bespeaks an overly narrow interpretation of the expression “exceptional circumstances”.
[42] Plaintiff M174 at [30]
[43] [2018] FCA 1317
The applicant contends that, had the Authority properly undertaken its task under s.473DD, it would have:
a)turned its mind to whether the information was credible information which may properly have affected the consideration of his claims in that regard; and
b)would have dealt with the submissions that related to his political involvement with the AL as potentially relevant to its decision.
The discussion by the Full Federal Court identifies that there will be occasions when the satisfaction or non-satisfaction of the two limbs of s.473DD(b) will inform the determination of whether exceptional circumstances exist to warrant the consideration of new information. If the information in question has the characteristic that it could not have been provided to the Minister previously or is credible personal information not previously known that might affect the decision, it would, in the applicant’s submission, add to the conclusion that it is "out of the ordinary" or "unusual". However, it is also clear that the wide scope of the expression "exceptional circumstances" means that it will not be necessary on every occasion to consider the criteria of the two limbs of s.473DD(b). This was made clear in AQU17 v Minister for Immigration,[44] which was a decision of the same Full Federal Court that decided CQW17 and handed down the same day. In that case their Honours stated:[45]
As the plurality in Plaintiff M174 made clear, what will amount to exceptional circumstances is inherently incapable of exhaustive statement. Each case will be different to every other case and must be treated on its merits and the matters for the Authority to take into consideration must necessarily vary from case to case. It is a misconception that the factors in s.473DD(b)(i) and (ii) of the Act must, in all cases, be considered by the Authority in deciding whether "exceptional circumstances" exist as s.473DD(b) does not codify what constitutes "exceptional circumstances". Rather, s.473DD(b) sets out the further preconditions that must also be met before the Authority can consider the new information cumulatively upon the precondition set out in s. 473DD(a): Plaintiff M174 at [31]. As BVZ16, BBS16 and CHF16 illustrate, in many cases consideration of the factors in ss.473DD(b)(i) and/or (ii) may assist the Authority in deciding whether or not it is satisfied that exceptional circumstances exist but whether those factors will have bearing upon that decision will depend on the particular case.
[44] [2018] FCAFC 111
[45] at [14]
The applicant submits that, having ascertained the procedure for determining what might amount to “exceptional circumstances", it is appropriate to turn to the question of its meaning. In this respect the recent decision in AQU17 is most helpful. Their Honours at [13] recognised that the term is not defined and should be given its ordinary meaning, being a reference to circumstances which "may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon: BVZ16; Plaintiff M174." Reference was also made to that part of the reasons of the plurality in Plaintiff M174, being Gageler, Keane and Nettle JJ, where at [30] their Honours referred with approval to R v Kelly, [46] reproduced at [30] above:
Quite what will amount to exceptional circumstances is inherently incapable of exhaustive statement. The word "exceptional", in such a context, is not a term of art but "an ordinary, familiar English adjective": "[t]o be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered".
[46] [1999] UKHL 4; [2000] QB 198 at [51]
In AQU17 their Honours held that when ascertaining whether exceptional circumstances exist, an arbiter of fact may consider a combination of factors which, when viewed together, will satisfy the description, or consider one factor on its own as sufficient. The answer to the question is "fact specific" and depends upon the circumstances of each case. It is not irrelevant that in AQU17 the Court found the Authority had correctly approached the question of whether "exceptional circumstances" existed by considering both limbs of s.473DD(b). That conclusion was reached despite there being no express reference to the second limb because the Authority’s determination was plainly based upon such a consideration.
Nevertheless, the determination of what amounts to "exceptional circumstances" in any particular case is an evaluative exercise by the Authority and, generally speaking, each case will turn on its particular facts.[47] Relevantly, the Full Federal Court in AQU17 stated as to the evaluative approach:[48]
Nor, contrary to the appellant's submissions, was the Authority obliged to evaluate the credibility of the new information or the significance of the new information to the appellant's case beyond the consideration given, absent some feature or matter to cause, or which should have caused, the Authority to consider that there was something about the appellant's case which made it unusual or out of the ordinary. Nor does it appear from the material that anything was put to the Authority about the appellant's personal circumstances or reason for the later inconsistent account, which was potentially relevant to the issue of "exceptional circumstances".
[47] AUH17 v Minister for Immigration [2018] FCA 388 at [32]
[48] at [17]
In relation to the second ground, the applicant relies upon supplementary submissions. This ground refers to submissions made to the Authority and contained at CB 245. Relevantly, he submits as follows.
The applicant contends that his submissions were mischaracterised as being "new information" as opposed to a "submission", and due to the misdirection, the Authority has failed to complete the task of its jurisdiction.
The document in question contains:
a)assertions regarding the applicant's commitment to AL ideology;[49]
b)reflections on the changing platform of the AL with respect to secularism;[50]
c)reflections on whether party members are aware of the AL’s platform;[51]
d)reflections on whether a party leader's image could inspire membership;[52]
e)reflections on the ideological commitment of most members;[53]
f)reflections on the difficulty in obtaining his membership information because of the lack of a "filing system" with respect to membership;[54]
g)reflections on the political culture in Bangladesh with respect to party loyalty;[55]
h)reflections on his own organisational capacity to perform the task of Secretary of the Chattra League;[56] and
i)reflections on his lack of education and familial ties to the BNP.[57]
[49] CB 245
[50] CB 246
[51] CB 246
[52] CB 246
[53] CB 246
[54] CB 247
[55] CB 247
[56] CB 248
[57] CB 248-249
The applicant submits that, on a fair reading, the material contains new information with respect to source material, but it contains more than that. It contains submissions on information which was already before the Authority. These were intertwined with the new information.
The applicant submits that the submissions turn on the findings as made by the “case officer” as opposed to matters the applicant was placed on notice about during the temporary protection visa interview.[58]
[58] CB 246
The Authority, in dealing with the material, states:[59]
Apart from some elements of the submissions which repeat the applicant's claims and explanations to the delegate and make what could be characterised as argument relating to the weight given by the delegate to certain information, I find that the submissions and the accompanying material are new information.
[59] CB 257 at [4]
The applicant submits that that is a misdirection. The submissions are referable to the findings of the delegate, and therefore could not have been made at an earlier stage. He contends that the submissions are not new information, and by the Authority misdirecting itself accordingly, the applicant has been denied an important opportunity to advance his case.
Part 7AA, s.473DA(1) provides that Division 3, together with ss.473GA and 473GB, "is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority". Part 7AA, it has been said, "modifies (by restricting) the common law principles of procedural fairness".[60]
[60] BCQ16 v Minister for Immigration [2018] FCA 365 at [71] per Thawley J
Of present relevance to the power of the Authority to consider "new information" as a prelude to making a further decision are ss.473DC and 473DD. Those sections are found within Division 3 of Part 7AA.
The applicant relies on observations as made by Flick, Griffiths and Perry JJ in Minister for Immigration v CLV16:[61]
[61] [2018] FCAFC 80 at [14]-[15]; [34]-[50]
Section 473DC provides as follows:
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.
Section 473DC(1), it may be noted, confers a discretionary power – i.e., the Authority “may ... get any document or information”. Section 473DC(2) is expressed as a negative – i.e., the Authority “does not have a duty to get, request or accept, any new information”. So expressed, s.473DC(2) leaves unconfined the discretionary power conferred by s.473DC(1) to “get any document or information (new information) that ... the Authority considers may be relevant”, other than the constraint that the discretion must be exercised in a manner which best promotes the object and purpose of the Migration Act as a whole and gives effect to (in particular) the fast track review process.
…
Considerable care, however, needs to be exercised when giving content to what is meant by the term "submission" in the context of ss.473DC and 473DD of the Migration Act.
The Authority, it is concluded, is not precluded by ss.473DC and 473DD from entertaining a "submission" directed to such matters as:
othe information already made available to the Authority and the consequences which it is "submitted" should flow from that already established pool of factual information; or
othe reasons why "new information" should be considered, including a "submission" as to why such "new information" satisfies the criteria in s 473DD.
But for any constraint imposed upon the Authority to "vary or revoke" its initial decisions made in each of the two current proceedings, and confined to the ability of the Authority to consider such a "submission", it is concluded that:
othe making of submissions by visa applicants is consistent with the administrative processes which have been endorsed by the Authority itself in (inter alia) its Practice Direction for Applicants, Representatives and Authorised Recipients issued by the President (the “Practice Direction”); and
osection 473DC of the Migration Act does not preclude the Authority from considering a submission, being a submission confined to the existing pool of factual information which was before the delegate when the fast track reviewable decision was first made or a submission as to why, pursuant to s.473DD, "new information" should be taken into account.
Presently left to one side is the fate of a submission such as that made on 8 December 2016 in the AHT17 proceeding which unquestionably trespassed beyond arguments as to the consequences flowing from the existing pool of factual information and which unquestionably set forth "new information".
Each of these conclusions should be briefly addressed.
The Authority's administrative processes & its Practice Direction
Any broadly expressed contention that the Authority could not entertain a "submission" made in relation to the fast track review function being exercised is to be summarily rejected.
Any such broadly expressed contention is contrary to:
othe administrative processes endorsed by the Authority in an "information sheet" and the Practice Direction which are distributed to review applicants.
Such processes and guidance as has been given by the Authority, it must nevertheless be recognised at the outset, are more directed to those more commonly presented factual situations in which the visa has been refused and the application has been referred to review as opposed to those (hopefully rare) factual situations in which the Authority has made an internal administrative error and thereafter seeks to revisit or "re-open" a decision once made.
If attention is momentarily focussed upon (for example) the Practice Direction, it provides in part as follows:
Submissions and new information
For the purposes of the review, you may provide a written submission on the following:
owhy you disagree with the decision of the Department
oany claim or matter that you presented to the Department that was overlooked.
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.
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.
If you want to give us new information, you must also provide an explanation as to why:
othe information could not have been given to the Department before the decision was made, or
othe information is credible personal information which was not previously known and may have affected consideration of your claims, had it been known.
While a different version of the Practice Note was given to the visa applicants in each of the proceedings (one dated 21 April 2016 and the other dated 14 October 2016) they are relevantly the same for present purposes.
The requirement to provide an explanation was, it may be noted, the subject of observations by Allsop CJ in ABC17 v Minister for Immigration and Border Protection [2018] FCA 254 at [8] to [10].
In those circumstances where the Authority has not made a decision, no argument could prevail that a visa applicant could not make a submission to the Authority in relation to a fast track reviewable decision referred to the Authority for review. The relevance of the guidance provided in the "information sheet" and the Practice Direction for present purposes is to lend support to an expectation on the part of visa applicants that submissions would in fact be taken into account. Having provided visa applicants with that guidance, it would be contrary to good administrative decision-making for the Authority to invite the submission, receive the submission but to fail to take the submission into account. The reference to "good administrative decision-making" is of course subject to the observations of the High Court in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6, (2003) 214 CLR 1 and Attorney-General (NSW) v Quin (1990) 170 CLR 1.
It is not to be lightly assumed, of course, that the Practice Direction is either misleading or (wholly or in part) invalid. Indeed, Senior Counsel for the Minister shrank from advancing such a submission. The highest the Minister's submission rose was to contend that paras [20] and [21] of the Direction were "incomplete".
Any constraint upon the ability of the Authority to take into account a submission which had been made must be found in some express or necessarily implicit legislative constraint.
The making of a "submission", "new information" & section 473DC
Section 473DC neither expressly nor implicitly precludes the ability of the Authority to take into account a submission made by a visa applicant. No legislative provision other than s.473DC was identified as the source of any such constraint.
Section 473DC(1) is expressed in terms of the ability of the Authority to "get any documents or information"; s.473DC(2) is expressed in terms of an absence of a "duty to get ... or accept, any new information". The term "submission" is not employed in s.473DC.
Notwithstanding the absence of any "duty to get ... or accept, any new information", s.473DC(2) does not expressly (or implicitly) preclude the Authority from exercising the discretionary power conferred in s.473DC(1) by the term "may" to "get any documents or information". Indeed, s.473DC(1) expressly confers a power to "consider" any such document or information which "may be relevant".
Given the absence of any constraint and the existence of a discretionary power for the Authority to "consider" information that "may be relevant", it is difficult to understand any argument - separate from either (possibly) s.473DD or s.473EA(3) - that the Authority was constrained from giving consideration to a submission by the terms of s.473DC. Yet such a broadly expressed argument was in fact advanced on behalf of the Minister. The argument advanced was not understood to be confined to a constraint upon the Authority to entertain a submission only in those circumstances where a decision had already been made.
The submission advanced on behalf of the Minister that s.473DC constrained the ability of the Authority to entertain a "submission" is rejected.
It is concluded that a "submission" which only addresses the information already made available for consideration by the Authority and which contains no additional factual information is neither:
oa "document"; nor
o"information"
for the purposes of the definition of "new information" as set forth in s.473DC.
The applicant further submits that guidance may be drawn from an authority of this Court in FKQ17 & Ors v Minister for Immigration & Anor.[62]
[62] [2018] FCCA 1281
I prefer the Minister’s submissions on the issues raised.
On 27 and 30 January 2017, some 22 and 25 days respectively after the referral of the delegate's decision to the Authority, the applicant's representative provided the Authority with (relevantly) the following documents in pdf format[63] (collectively, New Documents):
a)a member list, purporting to be a record of the applicant's role as Secretary of his local branch of the Bangladesh Student (Chattra) League;
b)a cutting, being two media articles dated 3 June 2014 and 22 November 2014 in relation to political conflict in Bangladesh;
c)a party letter, being a copy of a letter dated 12 January 2010 from the president of the Kalihati Upazila Chattra League, declaring that the applicant was the Secretary of his local branch of the Bangladesh Student (Chattra) League; and
d)a submission, being a submission to the Authority signed by the applicant (New Submission Document). The submission made arguments in relation to the delegate's findings but also sought to give some new information to the Authority.
[63] CB 227-250
The Authority found that the new information in the New Documents did not meet the requirements of s.473DD and accordingly found that it was bound to not consider it.[64]
[64] see CB 257 at [4] and [5]
Ground 2 of the amended application goes to whether the Authority correctly distinguished between "new information" (as that phrase is used in Part 7AA of the Migration Act) and submissions in the New Documents. These matters are, in the scheme of Part 7AA, logically anterior to those raised by Ground 1. For that reason, it is convenient to deal with Ground 2 before Ground 1.
Ground 2 - Did the Authority properly engage with the question of whether the New Documents (or aspects thereof) were "new information"?
Ground 2 asserts that the Authority mistakenly considered the New Documents to be "new information" and in doing so, erroneously found it was bound to not consider them. The gist of this ground is the contention that the New Documents were mischaracterised by the Authority as being "new information" when they ought properly have been characterised as "submissions".[65]
[65] see applicant’s supplementary submissions filed on 29 March 2019 at [3]
"New information" is a term defined by the Migration Act.[66] The scope of the term "submission" is not defined by the Migration Act but was considered by the Full Federal Court in CLV16 at [50].[67] For the purposes of Ground 2 in the amended application, the operative component of the definition of a "submission" is simply that a submission is not "new information".
[66] see ss.473BB and 473DC
[67] a paragraph relied on by the applicant: see [11] of the applicant’s supplementary submissions
The applicant summarises certain aspects of the New Submission Document and submits that those matters are properly characterised as "submissions" and not "new information". I accept that certain aspects of the New Submission Document are not "new information" within the meaning of Part 7AA of the Migration Act and are properly characterised as "submissions". For the reasons that follow, it is not necessary to descend into the detail of which aspects of the New Submission Document amounts to "submissions" and which amount to "new information".
The distinction between "new information" and "submissions" is significant because "submissions" do not attract the operation of s.473DD, that section being confined in operation to "new information". Accordingly, the Authority will fall into error (which may be jurisdictional) if it finds that it is bound by s.473DD to not consider information that is properly characterised as a "submission".[68]
[68] see CLV16 at [49]
In this case, I accept the Minister’s contention that the Authority made no such error. The Authority was alive to the fact that the New Submission Document contained some material that was properly characterised as a "submission" and some material that was properly characterised as "new information". At [4], it summarised the content of the New Documents and then found:
Apart from some elements of the submissions which repeat the applicant's claims and explanations to the delegate and make what could be characterised as argument relating to the weight given by the delegate to certain information, I find that the submissions and the accompanying material are new information.
In the following paragraph, the Authority went on to consider the application of s.473DD and concluded in the final sentence of that paragraph:
I am not satisfied that there are any exceptional circumstances to justify considering the new information.
The Authority’s failure to expressly disaggregate the New Documents into new information and submissions in its reasons is not an error, given that the Authority is not under an obligation to give reasons for its decision to receive or reject information. The reasons given establish that the Authority drew the necessary distinction between new information and submissions and no inference is available that the Authority erred in the application of the distinction. In a different case, such an inference might be available, for instance if it were impossible to make the distinction between what was new information and what were submissions. This is not that case. The applicant does not contend that it was impossible for the Authority to draw the necessary distinction. On the contrary, the applicant contends that it was both possible and necessary to do so. The Authority’s reasons state that it did do so, and I see no reason to go behind that statement.
The Authority's findings at [4] as extracted above draw a sufficiently clear distinction between those elements of the New Documents that were new information and those that were not. So much is indicated by the Authority's use of the words "apart from". The findings in relation to "exceptional circumstances" at [5] are confined to "the new information". Having regard to the distinction made by the Authority at [4] and considering the well-established principle that the Authority's reasons should not be read with an eye keenly attuned to error,[69] I am not satisfied that the Authority erred in the manner alleged by Ground 2.
Ground 1 - did the Authority apply the correct test in determining whether "exceptional circumstances" exist?
[69] see Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 272
By Ground 1, the applicant contends that the Authority erred by failing, in its application of the test in s.473DD(a), to take into account the matters referred to in s.473DD(b)(ii). The applicant’s submissions extensively review the relevant principles as derived from the authorities.
The test in s.473DD(a) requires the Authority to determine whether there exist exceptional circumstances to justify its consideration of the new information. As the applicant’s submissions correctly acknowledge, circumstances that are "exceptional" within the meaning of s.473DD(a) are “inherently incapable of exhaustive statement”.[70]
[70] Plaintiff M174/2016 at [30] and comprise those circumstances that are unusual or out of the ordinary: see, e.g. BVZ16 at [39]-[41] and Minister for Immigration v BBS16 [2017] FCAFC 176 at [104]
The assessment of "exceptional circumstances" requires the Authority to consider "all the relevant circumstances"[71] which will necessary vary depending on the facts of each individual case.[72]
[71] BBS16 at [104]
[72] AQU17 at [14]
Importantly, the circumstances that ought properly be taken into account in the assessment of "exceptional circumstances" may but do not necessarily include the factors in s.473DD(b).[73]
[73] AQU17 at [14]; BVZ16 at [9]; BBS16 at [102]
In this case, the Authority found that there were no exceptional circumstances justifying its consideration of the new material at [5]. It is the validity of that finding that is put in issue by Ground 1.
The relevant passages of the Authority's reasons are as follows:
a)at [4], the Authority noted that the New Documents comprised "documents dating from 2007 and 2010 which purport to evidence the applicant's role as Secretary of his local branch of the Bangladesh Student (Chatra) League… media articles, pre-dating the delegate's decision, regarding a family who has family members of both the Awami League and another party, and an article about intra party violence within the Chatra League";
b)at [5], the Authority noted that "the submission and material purport to address adverse credibility findings made by the delegate regarding the applicant's involvement with the Chatra League and particularly his claim to have held the role of secretary";
c)at [5], the Authority also observes that "[i]t is evident from the recording of the TPV interview on 23 November 2016 that the applicant was clearly on notice that these claims were in doubt";
d)at [5], the Authority notes that "the applicant was told at [the TPV] interview that if he did not give the Department of Immigration and Border Protection … all relevant information and his application was refused, he may not have another change [sic] to provide the information"; and
e)the Authority also observes at [5] that the applicant "was represented in the TPV application by the same migration agent who now represents him before the [Authority]".
These matters led the Authority to make the conclusion in relation to exceptional circumstances that is now impugned.
The passage of the Authority's reasons extracted at [67(a)] above is clearly referable to the matters in s.473DD(b)(i). The Authority makes no explicit finding in relation to s.473DD(b)(i) but it plainly had those matters in its mind when it made its assessment of exceptional circumstances.
The Authority also considered the nature of the new information, that being information seeking to address the adverse credibility findings made by the delegate. So much is clear from the extracts of the Authority's reasons that appear above at [67(a)] and [67(b)]. The applicant's submission that "the Authority did not evaluate the significance of the relevant part of the new information" is in this respect incorrect. The Authority's consideration of the factual context in which the new information arose is a matter that is properly taken into account in considering exceptional circumstances, either as a matter going to the matters in s.473DD(b)(ii)[74] or otherwise as one of the "relevant circumstances" the Authority was bound to consider.[75]
[74] see, eg EAA16 v Minister for Immigration & Anor [2018] FCCA 2624 at [42]
[75] BBS16 at [104]
The Authority's use of the word "purports" in the passages at [67(a)] and [67(b)] above is significant. The word "purport" is defined by the Macquarie Dictionary to mean "to profess or claim". The Oxford Dictionary defines "purport" as to "appear to be or do something, especially falsely". I accept the Minister’s submission that the word is used in the Authority's reasons to denote its doubts about the credibility of the New Documents. In this manner, on a fair reading the Authority considered, but did not make explicit findings in relation to, the matters in s.473DD(b)(ii) when it came to its conclusion in relation to exceptional circumstances.
The passages extracted at [67(c)] and [67(d)] above reveal the Authority's consideration of the circumstances surrounding the applicant's failure to put the new information before the delegate. This is a matter properly taken into account in the Authority's consideration of exceptional circumstances though will not, generally, be sufficient to answer the question.[76]
[76] see, eg BVZ16
Further, the Authority expressed its conclusion in relation to exceptional circumstances in very broad terms, being "not satisfied that there are any exceptional circumstances". In these circumstances, and given the Authority's consideration of the various matters outlined above, I am unwilling to infer that the Authority adopted too narrow a construction of s.473DD(a). In fact, on a fair reading of [4] and [5] of the Authority’s reasons, the Authority took into account all the relevant circumstances in arriving at the conclusion that there existed no exceptional circumstances to justify considering the new information. This is not a matter in which the Authority was "satisfied by reference to one matter only, that an applicant's circumstances are not exceptional".[77]
[77] cf BVZ16 at [9], as cited by the Full Federal Court in CQW17 at [48]
The applicant's submissions rely on the decision of Derrington J in CIH16 where his Honour found that the Authority had adopted an overly narrow interpretation of s.473DD by considering its finding on the matters in s.473DD(b)(i) as decisive of the inquiry under s.473DD(a). For the reasons outlined above, this is not such a case. The Authority engaged with all the relevant circumstances.
Conclusion
The applicant has been unable to establish that the decision of the Authority is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 7 June 2019
18
2