DLB17 v Minister for Home Affairs

Link copied
Case Copied 14 min read

FEDERAL COURT OF AUSTRALIA

DLB17 v Minister for Home Affairs [2018] FCAFC 230

Appeal from: DLB17 v Minister for Immigration & Anor [2018] FCCA 1299

File number:

WAD 263 of 2018

Judges:

MCKERRACHER, BARKER AND BANKS-SMITH JJ

Date of judgment:

18 December 2018

Catchwords:

MIGRATION – protection visa – fast-track review decision – appeal from a decision of the Federal Circuit Court of Australia – whether the Immigration Assessment Authority erred in its application of the test in s 473DD(a) of the Migration Act 1958 (Cth) – consideration of new information by the Authority – whether there were “exceptional circumstances” warranting the consideration of new information – what constitutes “exceptional circumstances” – where no jurisdictional error identified in the Authority’s approach

Held:  appeal dismissed

Legislation:

Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 36(2B)(c), 46A, 473CA, 473CB, 473DC, 473DD, 473DD(a), 473DD(b), 473DD(b)(i), 473DD(b)(ii)

Cases cited:

AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111

CVS16 v Minister for Immigration and Border Protection [2018] FCA 951

Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111

Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 92 ALJR 481

Date of hearing:

6 November 2018

Registry:

Western Australia

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

27

Counsel for the Appellant:

Mr MGS Crowley (Pro Bono)

Solicitor for the Appellant:

AUM Legal

Counsel for the First Respondent:

Mr P Knowles

Solicitor for the First Respondent:

Sparke Helmore

Counsel for the Second Respondent:

The Second Respondent submits to any order of the Court, save as to costs

ORDERS

WAD 263 of 2018
BETWEEN:

DLB17

Appellant
AND:

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

JUDGES:

MCKERRACHER, BARKER AND BANKS-SMITH JJ

DATE OF ORDER:

18 DECEMBER 2018

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs, to be assessed if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

THE COURT:

INTRODUCTION

  1. The appellant appeals from the decision of the Federal Circuit Court of Australia by which it dismissed an application for judicial review of the decision of the second respondent, the Immigration Assessment Authority. The Authority had affirmed the decision of a delegate of the first respondent, the Minister for Home Affairs to refuse the appellant a Safe Haven Enterprise Visa (SHEV). The issue on appeal is whether the Authority misconstrued or misapplied the test in s 473DD of the Migration Act1958 (Cth) in making a decision not to have regard to certain “new information” advanced by the appellant in support of his claims.

    BACKGROUND

  2. The appellant, a citizen of Afghanistan, arrived in Australia as an unauthorised maritime arrival. He was informed on 17 March 2016 that the Minister had exercised the discretion in s 46A of the Act to permit the appellant to make a valid visa application. The appellant made…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read DLB17 v Minister for Home Affairs and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2018] FCAFC 230
Decision Date

CaseChat Overview and Summary

DLB17 filed an appeal against the Minister for Home Affairs regarding the refusal of his application for a Subclass 866 Special Humanitarian Visa (SHEV). The Federal Circuit Court of Australia reviewed the decision of the Immigration Assessment Authority (IAA), which had affirmed the delegate's decision to deny the SHEV. The appellant argued that the IAA erred in its application of the test under section 473DD(a) of the Migration Act 1958 (Cth) when it decided not to consider new information provided by the appellant. The key legal issues before the court were whether the IAA correctly applied the test for "exceptional circumstances" to justify the consideration of new information and if the IAA's assessment of this information was appropriate.

The court examined the IAA's decision to not consider the new information provided by the appellant. The IAA concluded that the new information did not meet the criteria for exceptional circumstances as it was neither credible nor previously unknown. The court upheld the IAA's decision, finding that it had appropriately considered the new information and correctly determined that it did not warrant consideration. The court further noted that the IAA was not required to articulate its reasoning in detail, as long as the decision-making process was rational and justifiable. The test for exceptional circumstances, as outlined in Plaintiff M174/2016, is inherently broad and must be assessed on a case-by-case basis. The IAA's decision to reject the new information was consistent with the legal principles established in previous cases.

The court dismissed the appeal and ordered the appellant to pay the costs of the first respondent, the Minister for Home Affairs, in accordance with Rule 39.32 of the Federal Court Rules 2011. The court found no error in the IAA's application of the test for exceptional circumstances and upheld the decision to deny the appellant's SHEV application.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant pay the first respondent’s costs, to be assessed if not agreed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The delegate refused the appellant’s application for a SHEV. The matter was referred to the Authority for review on 8 December 2016.THE DECISION OF THE AUTHORITY By a decision dated 4 July 2017, the Authority affirmed the delegate’s decision. Before coming to the substantive review, the Authority was required to decide whether it should take into account “new information” provided in a written statement provided by the appellant. Of particular relevance to the assessment of whether the circumstances were such to warrant the consideration of “new information”, as the Authority recorded (at [7]-[9]), were these new claims by the appellant:7.The applicant also claims for the first time in his submission that he was arrested at three different checkpoints while he was travelling for work. He claims on the fourth and last occasion he was detained at the first checkpoint in the Khimchik area. He claims he was released on the first three occasions due to the intervention of village elders. He claims he as [sic] released on the condition that he would no longer work for NGOs, but he returned to this work due to financial reasons.8.In his written statement the applicant stated that he was forcibly removed from his home by the Taliban on frequent occasions. The applicant did indicate that he would be harassed on his way to work, and they would be taken off the roads. He made no mention of checkpoints or the intervention of village elders, but claimed he was detained at a Taliban base. The applicant has previously claimed that he was a volunteer worker for the NGOs, and as such the suggestion in the submission that he would return to this work due to financial reasons contradicts his earlier evidence.9.This new information related to his past claims, but did not form part of his original claims, whether at the arrival, application or visa interview stages. I am not satisfied this information was not, and could not have been, provided to the Minister before the delegate made their decision. I am also not satisfied it is credible personal information which was not previously known and, had it been known, may have affected the consideration of the applicant’s claims. I have considered whether its omission was due to the applicant’s claims of trauma, but I am not satisfied that this is the case. The applicant had multiple opportunities to raise those claims if they were genuine, and he did not indicate any concerns in giving evidence at those stages. Moreover, those claims are inconsistent with his earlier evidence. In all the circumstances, I am also not satisfied there are exceptional circumstances to justify consideration of the new information, and I have not considered the information pursuant to s.473DD of the Act.(Emphasis added.) On the substantive review, which is not the direct focus of the appeal, the Authority considered country information regarding the security situation in Parwan Province. On the basis of this information, the Authority did not accept that the appellant had been targeted, abducted or otherwise harmed by the Taliban or any other insurgent group or that the appellant had witnessed the abduction or execution of Hazara Shias, or that his family had been contacted by the Taliban since he came to Australia. It also rejected the appellant’s claim to have worked for an NGO, finding these claims were contrived. The Authority noted that the appellant did not mention this in his earlier entry interview and preferred his earlier evidence that he had worked as a car painter for between 15 and 20 years.

Ratio Decidendi

Legal Principle Established

It is contended that the primary judge ought to have found that in this way the Authority had misdirected itself in reaching its state of satisfaction as to “exceptional circumstances”.CONSIDERATION In Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 92 ALJR 481, the plurality (Gageler, Keane and Nettle JJ) held (at [30]):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”.(Citations omitted.) Consistently with this position, the Full Court has held that each case must be treated on its own merits and the considerations relevant to the existence of exceptional circumstances will vary from case to case: AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111 per McKerracher, Murphy and Davies JJ (at [14]). In this case, the Authority said that it had considered the question of exceptional circumstances by reference to “all the circumstances”: see Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111 per Kenny, Tracey and Griffiths JJ (at [104]). The Authority was not obliged to articulate its reasoning in any greater detail: CVS16 v Minister for Immigration and Border Protection [2018] FCA 951 per Bromwich J (at [25]-[30] and the citations therein cited). The assessment of exceptional circumstances does not require the Authority, in all cases, to consider the matters relevant to the criterion in s 473DD(b)(ii): AQU17 (at [14]). The Authority is, however, permitted to consider these matters, including by assessing whether the information is credible: AQU17 (at [16]). Even if the credibility of information for the purposes of s 473DD(b)(ii) is to be assessed at the lower threshold suggested by the primary judge (that is that the new information is arguable), there is no prohibition on the Authority going further when considering the requirement for exceptional circumstances. That is, the Authority may, even if it accepts a contention to be arguable, test it so as to consider for itself whether it is satisfied as to the truth of the new information. Any suggestion to the contrary would be inconsistent with the decision in Plaintiff M174/2016 and the purposely broad range of considerations relevant to the establishment of exceptional circumstances. More specifically, the appellant argues that in referring to a need to return for financial reasons the Authority had (without intelligible justification, rational explanation, consideration of possible alternatives or inviting the appellant back to expand upon or explain his position) assumed that the financial reasons to which the appellant was referring were his own financial reasons as distinct from the financial benefit to the village whom he was serving as treasurer.