DLB17 v Minister for Immigration & Anor
[2018] FCCA 1299
•28 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DLB17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1299 |
| Catchwords: PRACTICE & PROCEDURE – Leave sought to amend application – leave granted to amend the application to include the ground that the Authority incorrectly applied the test in sub-s.473DD(b)(ii) of the Migration Act 1958 (Cth). |
| Legislation: Migration Act 1958 (Cth), ss.5J, 473DD, 486I, pt.7AA Convention Relating to the Status of Refugees (1951) as amended by the Protocol Relating to the Status of Refugees (1967), Article 1A(2) |
| Cases cited: BVZ16 v Minister for Immigration & Border Protection [2017] FCA 958 CHF16 v Minister for Immigration & Border Protection [2017] FCAFC 192 CSR16 v Minister for Immigration & Border Protection [2018] FCA 474 |
| Applicant: | DLB17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 416 of 2017 |
| Judgment of: | Judge Smith |
| Hearing date: | 30 April 2018 |
| Date of Last Submission: | 14 May 2018 |
| Delivered at: | Sydney and Perth |
| Delivered on: | 28 May 2018 |
REPRESENTATION
| Solicitors for the Applicant: | Mr G Arujunan, AUM Legal |
| Counsel for the First Respondent: | Mr P M Knowles |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
Leave is granted to amend the application to include the ground that the decision of the Authority was affected by jurisdictional error, in that the Authority incorrectly applied the test in sub-s.473DD(b)(ii) of the Migration Act 1958 (Cth) for the consideration of new information.
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 416 of 2017
| DLB17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Immigration Assessment Authority made on 4 July 2017. The Authority affirmed a decision of a delegate of the first respondent to refuse to grant the applicant a protection visa.
The applicant is a citizen of Afghanistan who arrived in Australia by boat on 2 April 2013. On 24 June 2016 he lodged an application for a protection visa. That application was supported by a statement made by the applicant in which he made the following claims:
a)the applicant was persecuted in Afghanistan on account of his Hazara ethnicity, his Shia Muslim religion and previous service in the military during the communist era in Afghanistan;
b)he suffered mental trauma because he witnessed the execution of Hazara people by the Taliban in Afghanistan;
c)the applicant was a well-known person in his village as he was in charge of managing the village’s finances. He had also worked for a number of non-governmental organisations in Afghanistan;
d)he had been repeatedly threatened and assaulted by the Taliban who had forcibly removed him from his house and threatened to kill him. The abuse intensified in the two months leading up to the applicant’s departure from Afghanistan; and
e)since the applicant’s departure from Afghanistan the Taliban has threatened his family who remain in Afghanistan. The Taliban has asked after the applicant and demanded to know his whereabouts.
On 1 December 2016, a delegate of the Minister made a decision to refuse to grant the applicant a visa and the matter was referred to the Authority for review.
On 25 December 2016, the applicant sent the Authority a written submission in which he included some country information that had not been before the delegate, as well as addressing some of the delegate’s reasons for decision. It will be necessary to refer to this submission in more detail later in these reasons.
On 4 July 2017, the Authority made its decision to confirm the delegate’s decision.
The applicant now seeks judicial review of the Authority’s decision.
In its reasons for decision, the Authority firstly referred to, and purported to deal with, the submission made by the applicant to it. Its reasons in this respect will be dealt with in more detail later in these reasons.
The Authority then turned to deal with the material that it considered it was entitled to under the provisions of pt.7AA of the Migration Act 1958 (Cth). The following summary of its reasons in this respect are adapted from the first respondent’s submissions:
5.The Authority considered country information regarding the security situation in Parwan Province. On the basis of this information, and because of its concerns relating to the accuracy and consistency of the Applicant’s evidence, the Authority did not accept that the Applicant had been targeted, abducted or otherwise harmed by the Taliban or any other insurgent group. Similarly, the Authority did not accept that the Applicant had witnessed the execution of Hazara Shias, or that his family had been threatened since he came to Australia.
6.The Authority also rejected the Applicant’s claim to have worked for an NGO as fabricated. The Authority noted that the Applicant did not mention this in his earlier entry interview and preferred his earlier evidence that he had worked as a car painter for 15-20 years.
7.The Authority accepted, however, that the Applicant had served in the Afghan military, was well-known in his village, and may have had responsibilities in the village. These factors, the Authority held, were unlikely to make him the target of an attack from the Taliban. The Authority relied in this regard on country information which indicated that persons with connections with the army, the government or the international community had a high-risk profile.
8.In considering the risk of violence, the Authority acknowledged that there was evidence of “a degree of risk to persons travelling on the roads in Pawan Province in terms of criminal and insurgent violence”. However the Authority did not accept that the Taliban or other insurgents targeted Hazara Shias on the basis of religion or ethnicity. The Authority held that the Applicant did not have the profile of person likely to be the target of violence and his risk of harm from “generalised violence” was reduced by the fact that he would not need to be a frequent user of roads in the less secure parts of the province. This caused the Authority to conclude that while the risk of harm from insurgent or criminal violence was “credible” it was “remote”.
9.The Authority went on to make a number of other findings, including that:
(a)The Applicant would be able to travel from Kabul to his home province without being exposed to a risk of serious harm;
(b)To the extent the Applicant faced a risk of harm from insurgent or criminal violence, it would not constitute a well-founded fear of persecution for the purposes of s 5J of the Act because it would not be for the essential and significant reason of the Applicant’s race, religion, nationality, membership of a social group, or political opinion; and
(c)It would not be unreasonable, and would not of itself constitute serious or significant harm, if the Applicant’s freedom of movement upon return to Afghanistan was restricted to his former home area.
10.In light of these findings, the Authority was not satisfied that the Applicant met the refugee criterion in s 36(2)(a) of the Act. In assessing the complementary protection criterion in s 36(2)(aa) of the Act, the Authority reached the same conclusion having regard to its previous factual findings. The Authority further held that any risk faced by the Applicant from insurgent and criminally motivated violence was a risk faced by the population of the country generally, which invoked the operation of the exception in s 36(2B)(c) of the Act.
(Citations omitted)
Consideration
The application filed by the applicant contains the following four grounds:
The Immigration Assessment Authority unreasonably gave too much weight to the entry interview statement rather than assessing the claim put forward for the protection visa application.
The IAA failed to disclose the country information it relied on in arriving at its decision.
The IAA committed jurisdictional error by unreasonably not accepting that reducing or limiting his freedom of movement in and out of his former home area would not amount to serious or significant harm.
The IAA committed jurisdictional error by failing to consider the latest country information published on continuing deterioration of the security situation in Afghanistan.
Shortly before the hearing, which was set to take place in Perth, the applicant filed an application seeking an order that the matter be transferred to the Melbourne Registry of the Court and for there to be an adjournment. The purpose of these applications was to allow Counsel in Melbourne to act in the matter. In support of the applications the applicant filed an affidavit to which was annexed proposed amended grounds of review.
The proposed grounds in that document are entirely different from the grounds set out above and it is clear that the applicant wished to abandon the original grounds of review. It is important to note that that is the case even though the applicant was, and has been at all times, legally represented in connection with these proceedings and that, at the time of the application, his lawyer had certified pursuant to s.486I of the Act that there were reasonable grounds for believing that the proceedings had a reasonable prospect of success.
Both applications were unsuccessful and the hearing proceeded on the day. The applicant confirmed that he no longer relied on the original grounds in the application but instead wished to rely on the grounds in the proposed grounds prepared by Counsel in Melbourne.
The first question, then, is whether leave ought to be given to the applicant to rely on those grounds. For the reasons that follow, that leave will be refused because there are insufficient merits in them. A second issue arose at the hearing concerning the way in which the Authority dealt with the information contained in the applicant’s written submissions to it. Leave is granted to amend the application to include that issue, however, it will be resolved against the applicant and the application must be dismissed.
First proposed ground: “The IAA erred in its application of the ‘real chance’ test in finding at [51] ‘the chance of the applicant being seriously harmed in returning to and living in his home area to be credible’ but finding that this did not constitute a real chance of serious harm. The IAA asked itself the wrong question, or alternatively, applied the wrong test, or alternatively, made a finding that was irrational.”
This ground cannot be supported on any sensible reading of [51] of the Authority’s reasons. The Authority stated:
51.Weighing all the evidence before me. I consider the chance of the applicant being seriously harmed in returning to and living in his home area to be credible, but given his lack of any other profile, his past experience travelling to and living in Parwan Province, the overall security outlook in the province, and the infrequency which he would need to travel on the roads in less secure parts of the province, I find that chance of him being seriously harmed in insurgent or criminally motivated violence to be credible, but remote. On the basis of the above information, I am also satisfied he could continue to travel on the roads (such as he has in the past for work) in the relative security of his home district. Accordingly, I am satisfied there is not a real chance of him being seriously harmed in generalised, insurgent or criminal violence in returning to his home area in Parwan Province. It follows that I am also satisfied he would be able to safely access his home area on return to the country.
The essence of the applicant’s argument is that it is not possible for the Authority, acting reasonably and on a proper understanding of the law, to find on the one hand that the chance of serious harm was credible but on the other that the chance was remote. That is not correct.
It was a criterion for the grant of the protection visa, that the applicant satisfy the definition of a refugee within the meaning of the Act. In order to do so, there had to be a real chance of Convention[1] based harm: sub-s.5J(1)(b). The term “real chance” was, before the introduction of s.5J into the Act, used to explain what constituted a “well-founded fear of persecution” within the meaning of Article 1A(2) of the Refugees Convention: Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379; [1989] HCA 62. In Chan the High Court explained that a fear of Convention based harm is “well-founded” when there was a real chance of that harm occurring in the sense that there was a risk that was “substantial”, “not remote” and which excluded “the far-fetched possibility of persecution”: Chan at 389, 398 and 429. The inclusion in s.5J of the phrase “real chance” in the context of that understanding of the definition of refugee in the Refugees Convention is not to be seen as changing any of the understanding of what constitutes a refugee as developed by the authorities in and since Chan.
[1] Convention Relating to the Status of Refugees (1951) as amended by the Protocol Relating to the Status of Refugees (1967), Article 1A(2).
Against that background it is clear that, when the Authority found that the chance of harm coming to the applicant was “credible but remote”, it was making a factual assessment that the risk of harm, while believable, did not rise to a level that amounted to a “real chance” of persecution. So understood, the reasons of the Authority do not reveal any misunderstanding of the law or irrationality or unreasonableness. For that reason, there are no real prospects of the ground succeeding and leave is refused to amend the application to include it.
Second proposed ground: “The IAA made a finding that was irrational, in that it could not rationally be supported by the country information on which the IAA purported to rely for that finding.
Particular (a): “The IAA at [48] relied on DFAT[2] country information that there have been serious attacks by the Taliban targeting Hazara Shias ‘in part due to their religious or ethnic background’.”
Particular (b): “The IAA nevertheless found in the same paragraph that ‘there is little or no evidence that Hazaras are being systematically targetted (sic) by the Taliban or other groups, including on the roads’.”
[2] Department of Foreign Affairs & Trade.
The relevant parts of the Authority’s reasons are:
47.In terms of security on the roads, DFAT assesses that criminals and insurgents on the roads tend to target people who appear wealthy or are associated with the government or the international community in attacks that can include kidnapping for ransom. People from all ethnic groups are vulnerable to these attacks and it can be difficult to ascertain the motivation for attacks, and to separate criminal attacks from insurgent activity. The question of whether his religion or ethnicity would play a factor on the roads is somewhat unclear. DFAT equivocates in its assessment of the risks to Hazara Shia on the roads, but concedes that there have been incidents where Hazara Shias may have been targetted, in part due to their religious or ethnic background, citing serious attacks involving Hazara Shias travelling in Ghazni and Zabul provinces. However, DFAT also concurs with the assessment of other organisations – such as UNAMA[3] in its mid-year report on the protection of civilians in conflict – that the primary motivations for these abductions can include holding hostages for ransom, prisoner exchanges, and a perception that the abductees have links with the government or the international community.
48.That assessment is consistent with reporting from the Afghanistan Analysts’ Network, which analysed eight separate abductions which were reported in the media as targeting Hazara Shias. That analysis revealed that while there is concern among the Hazara community, there has been considerable misreporting in relation to these attacks, and with the exception of one serious incident in Zabul, there is little or no evidence to support a conclusion that Hazaras are being systematically targetted by the Taliban or other groups, including on the roads.
(Emphasis added, citations omitted, without alteration)
[3] United Nations Assistance Mission in Afghanistan.
A plain reading of these two paragraphs together reveals the following: first, the task in which the Authority was involved in the paragraphs was to assess the risk of the applicant being targeted by Taliban on roads in Afghanistan. Secondly, as shown in the highlighted part of [47], there was some lack of clarity about the question; thirdly, the Authority then analysed the country information concerning the issues; fourthly, while it found that DFAT has expressed opinions suggesting that Hazara Shias had been targeted, there was evidence to the opposite effect. Finally, the Authority accepted, given the acceptance by DFAT of another report to this effect, that there was “little or no evidence to support a conclusion that Hazaras are being systematically targeted [sic] by the Taliban”.
Far from being inconsistent in its findings, these paragraphs simply show that the Authority has undertaken the task of analysing country information in order to determine a question that was relevant to the existence of the risk of harm to the applicant, being a Hazara Shia, with the possibility that he might travel on roads in Afghanistan. The applicant did not suggest that the Authority’s assessment of the country information referred to by it in its footnotes to the paragraphs was not open on that material. For those reasons, there is nothing illogical about the Authority’s reasons in this respect and leave to include it in the application is refused.
Third proposed ground: “The IAA erred in its application of the ‘real chance’ test by erroneously requiring that Hazara Shias must be ‘systematically targeted’ in order for there to be a real chance of serious harm on the basis of religion and/or ethnicity.”
This ground relies upon the same particulars as ground 2. However, the ground cannot be sustained on any reading of [47] and [48] of the Authority’s reasons.
All of the reasoning in those paragraphs proceeds upon an acceptance of the fact that people who travel on roads, including Hazara Shias, are at risk of serious harm. The Authority states, in the second sentence, “people from all ethnic groups are vulnerable to these attacks”. The real question dealt with in [47] and [48] was the reasons for which any particular person travelling on the roads might be attacked. The reason for a particular attack is important in the definition of a refugee in the Act because, in order to be a refugee, the applicant had to have a well-founded fear of persecution “for reasons of” race, religion, nationality, membership of particular social group or political opinion: sub-ss.5J(1)(a) and (b).
Once those two matters are understood, it is clear that when the Authority referred to systematic targeting it was not referring to the likelihood or risk of harm, but rather the reason for which that harm might be incurred. Leave to amend to include the third proposed ground is refused.
Fourth proposed ground: “The IAA erred in finding that the applicant’s submissions to the IAA did not contain credible personal information within the meaning of s473DD of the Migration Act because his evidence of having returned to his work with NGOs was inconsistent with his supposed previous evidence to have worked with the NGOs on a voluntary basis. The IAA’s decision not to consider the new information in the submissions therefore miscarried because it was based on a misunderstanding of the applicant’s claims and evidence.”
This ground is based upon the assertion that the applicant had never previously claimed to have worked for an NGO on a voluntary basis. It was argued that, because that was the case, the Authority proceeded on a false understanding of the applicant’s claims which, in turn, led it not to consider the information that was before it. The problem for the applicant is that the Authority was in fact correct to say that the applicant had claimed to have worked on a voluntary basis for NGOs between 2010 and 2013: see Ex. A, page 93. As formulated, then, this ground has no prospects of success.
Fifth proposed ground: “The IAA’s finding that the applicant had contrived his connection to two NGOs was premised on a misunderstanding of the applicant’s evidence, leading to a constructive failure to exercise jurisdiction.”
This ground is based on the same mistaken premise as the fourth proposed ground and leave to raise it is refused for the same reason as that ground.
Further issue: “new information” and s.473DD of the Act
As I have noted, another issue arose at the hearing in respect of the way in which the Authority dealt with the information contained in the applicant’s submission to it. The parties were given leave to file submissions concerning the issue.
Before examining the reasons for the Authority’s consideration of that submission it is necessary to briefly set out the relevant statutory provisions.
Restrictions are imposed upon the Authority as to when it can consider “new information”. That term was explained by the plurality in Plaintiff M174/2016 v Minister for Immigration & Border Protection [2018] HCA 16 as follows:
24The 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). The first is that the information was not before the Minister or delegate at the time of making the decision to refuse to grant the protection visa. The second is that the Authority considers that the information may be relevant.
(Citations omitted)
Section 473DD provides:
…
For the purposes of making a decision in relation to a fast track reviewable decision [the 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.
This provision was explained by the plurality in Plaintiff M174/2016 at [29] through to [34]:
29The precondition set out in s 473DD(a) must always be met before the Authority can consider any new information. Whatever the source of new information, the Authority needs always to be satisfied that there are “exceptional circumstances” to justify considering it.
30Quite 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”.
31Cumulatively upon the precondition set out in s 473DD(a) that the Authority must be satisfied that there are exceptional circumstances to justify considering new information, s 743DD(b) sets out a further precondition that must also be met before the Authority can consider new information that is given to it, or proposed to be given to it, by the referred applicant. In respect of new information within that category, the Authority must be satisfied of one or other of the circumstances set out in s 473DD(b)(i) and (ii).
32The circumstance of which the Authority needs to be satisfied in order to meet s 473DD(b)(i) is that the new information that is given, or proposed to be given, by the referred applicant was not, and could not have been, provided to the Minister before the Minister or delegate made the decision to refuse to grant the protection visa. No explication of that circumstance is required in the present case.
33The circumstance of which the Authority needs to be satisfied in order to meet s 473DD(b)(ii) does require some explication. In that provision, the term “personal information” takes its defined meaning within the the Act of “information or an opinion about an identified individual, or an individual who is reasonably identifiable”. Unaided by considerations of legislative history, the reference in s 473DD(b)(ii) to personal information which was not previously “known” might have been read as confined to personal information not previously known to the referred applicant. Legislative history, however, is against that reading. The provision is the result of an amendment to the Bill for the 2014 Amendment Act made in the Senate. The purpose of the amendment was explained at the time as being to “extend the types of ‘new information’ that a referred applicant may present to [the Authority] to include, for example, evidence of significant torture and trauma which, if it had been known by either the Minister or the referred applicant, may have affected the consideration of the referred applicant’s asylum claims by the Minister”. The Full Court of the Federal Court has correctly recognised that the identified purpose is best achieved by reading the reference to personal information which was not previously known as encompassing personal information which, although previously known to the referred applicant, was not previously known to the Minister.
34Accordingly, all that the Authority needs to be satisfied of in order to meet the precondition to its consideration of new information given, or proposed to be given, by the referred applicant set out in s 473DD(b)(ii) is that: (1) the information is credible information about an identified individual, or an individual who is reasonably identifiable; (2) the information was not previously known by either the Minister or the referred applicant; and (3) had the information been known by either the Minister or the referred applicant, the information may have affected the consideration of the referred applicant’s claims.
(Citations omitted, without alteration)
Importantly, for present purposes there is some overlap between the requirements of sub-pars.(a) and (b). In BVZ16 v Minister for Immigration & Border Protection [2017] FCA 958, White J explained:
9The 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 reasons have been adopted and applied by a number of later decisions including Minister for Immigration & Border Protection v BBS16 [2017] FCAFC 176 at [102]-[106]; and CHF16 v Minister for Immigration & Border Protection [2017] FCAFC 192 at [17]-[18].
The relevant parts of the Authority’s reasons are at [9]. I have adopted the Minister’s approach by inserting numbers in the paragraph so that later reference to the reasoning is more easily understood.
9.[1] 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. [2] I am not satisfied this information was not, and could not have been, provided to the Minister before the delegate made their decision. [3] 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. [4] 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. [5] 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. [6] Moreover, those claims are inconsistent with his earlier evidence. [7] 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.
(References and emphasis added)
The issue arises because in this passage the Authority, on one view, appears to base its consideration on the conclusion that the information in the submission was “not previously known”. It is not entirely clear what the Authority meant by that, but it is possible to infer that the Authority meant that it was not satisfied that the material was not previously known to the applicant. If that were the case, then it would have proceeded on a misunderstanding of that phrase in sub-s.473DD(b)(ii)
The applicant submitted, and the Minister accepted, that sub-s.473DD(b)(ii) required that the information in question was not previously known either by the applicant or by the Minister or his delegate: see Plaintiff M174/2016 at [34]; see also BBS16 at [106]. The High Court in Plaintiff M174/2016 explained:
34.Accordingly, all that the Authority needs to be satisfied of in order to meet the precondition to its consideration of new information given, or proposed to be given, by the referred applicant set out in s 473DD(b)(ii) is that: (1) the information is credible information about an identified individual, or an individual who is reasonably identifiable; (2) the information was not previously known by either the Minister or the referred applicant; and (3) had the information been known by either the Minister or the referred applicant, the information may have affected the consideration of the referred applicant's claims.
The applicant argued that the Authority did not address the first of those criteria and that noting an apparent inconsistency (see finding [6] in the Authority’s reasons above at [31]) did not amount to a proper consideration of the credibility of the information. He argued that, on a proper reading of [9] of the Authority’s reasons, the only matter considered in connection with sub-s.473DD(b)(ii) was whether the information was known by the applicant. That revealed a misunderstanding of that provision and led the Authority to leave the information out of its consideration.
The Minister argued that the sentence marked [7] was a conclusion in respect of the exceptional circumstances in s.473DD(a) and that, because the Authority had regard to “all of the circumstances”, there was no error in its conclusion. If that submission is accepted, any error concerning sub-s.473DD(b)(ii) was immaterial because the requirements of ss.473DD(a) and 473DD(b) are cumulative.
The Minister also argued that a proper reading of sentences [3], [4], [5] and [6] of the Authority’s reasons at [9] is that it found that the new information was not credible personal information and, therefore, did not meet the first condition.
The Minister argued that the Authority’s reasoning at [8] sets out the basis for doubting the new claims. Put briefly, the Authority noted that the applicant had previously made no claims in relation to road checkpoints, and also noted the applicant’s stated rationale for returning to work for financial reasons was inconsistent with previous evidence that he worked as a volunteer. The reasoning in the fourth, fifth and sixth sentences of its reasons at [9] relate back to this reasoning: namely, whether there was an explanation for why the applicant did not raise the claims previously, and whether the claims were inconsistent with previous evidence. The Authority simply was not satisfied that the new information, although personal information about the applicant, was credible.
The Minister submitted that the Authority’s reasoning in this case was relevantly identical in its approach to that considered in DYS16 v Minister for Immigration & Border Protection [2018] FCAFC 33 at [37]-[39]. The Court there explained the Authority’s reasoning as follows:
37The psychiatric report had also contained a summary of the history, given by DYS16 to the psychiatrist. Much of this was not new information: it had previously been given to the Minister’s delegate. Some of it was, however, “new” in the sense that it had not previously been advanced by DYS16 in support of his claims. Some of this new information was found, by the IAA, to have been inconsistent with information previously provided by DYS16. These assertions, if accepted, might have further undermined DYS16’s credibility when assessed by the IAA. They led to the IAA’s conclusion, at [8] of its reasons, that it was “unable to be satisfied that any of the new information which he [had] provided to the treating psychiatrist [was] credible or that it could not have been provided before the delegate made his decision.” As a result, the IAA declared at [8] that it was not satisfied that the requirements of s 473DD(b) had been met or that there existed exceptional circumstances which justified consideration being given to this new information.
38Ultimately, the IAA came to the view, recorded at [9] of its reasons (to which we have already referred above at [22] and [23]), that the psychiatrist’s assessment of DYS16’s credibility did not carry more weight than the IAA’s own assessment.
39This conclusion was, in our view, clearly open to the IAA in the circumstances of this case.
It is true, as the Minister submits, that the Court in DYS16 found that this reasoning was open to the Authority; however, the meaning of “credible” in sub-s.473DD(b)(ii) was not in issue in those proceedings. However, it was in issue in CSR16 v Minister for Immigration & Border Protection [2018] FCA 474. There, Bromberg J held that credible information in the context of sub-s.473DD(b)(ii) means information “which is open to be or capable of being accepted by the Authority as truthful” as opposed to information that is, on a final basis, held to be truthful: CSR16 at [41]. In other words, in assessing the threshold issue in sub-s.473DD(b)(ii), the Authority is not to determine whether it believes the new information. The question is posed at a much lower threshold.
The Minister submits that the reasoning in CSR16 sits uncomfortably with the decision in DYS16. That may be so, but it is not a matter for this Court to resolve. Bromberg J expressly addressed the issue that arises in these proceedings. His Honour was exercising the appellate jurisdiction of the Federal Court and I am bound to apply the law as determined by him.
I am satisfied that, at [9] of its reasons, the Authority was addressing the issue of whether the new information was “credible”. Inconsistency between versions of events or claims often provides a logical basis to disbelieve one or both versions of events or claims. However, on the basis of the decision in CSR16, I conclude that the Authority was not addressing the correct question, but rather, determining whether it accepted the truth of the new information. It did not properly apply sub-s.473DD(b)(ii); however, whether the Authority accepts the credibility of new information is relevant to the question of whether there are “exceptional circumstances” for the purposes of s.473DD(a). That is so, whether credibility is taken at the entry level suggested in CSR16, or at the level of personal acceptance which the Authority adopted here. For that reason, and because I accept that the Authority took into account all of the circumstances (as it said), I find that its finding that s.473DD(a) was not met was open to it on the approach that it took.
As the requirements of s.473DD are cumulative, the Authority’s conclusion that there were no “exceptional circumstances” meant that the Authority was prohibited from considering the “new information” for the purposes of the review of the delegate’s decision.
While this issue was ultimately decided against the applicant, there is, in my view, sufficient merit in it to warrant the grant of leave to the applicant to amend his application to raise the ground.
Conclusion
There is no jurisdictional error in the Authority’s decision. Leave is granted to amend the application to include the ground that the decision of the Authority was affected by jurisdictional error, in that the Authority incorrectly applied the test in sub-s.473DD(b)(ii) of the Act for the consideration of new information but the application must be dismissed.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Smith
Date: 28 May 2018
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