DLH16 v Minister for Immigration
[2019] FCCA 201
•1 February 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DLH16 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 201 |
| Catchwords: MIGRATION – Application for review of a decision of the Immigration Assessment Authority – whether the Authority failed to consider a claim of the Applicant – new information – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 197AB, 473CB, 473DC, 473DD, 473EA, 473FB |
| Cases cited: BVC15 v Minister for Immigration and Border Protection (2017) 255 FCR 471 |
| Applicant: | DLH16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | MLG 2493 of 2016 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 30 October 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 1 February 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Solomon-Bridge |
| Solicitors for the Applicant: | Carina Ford Immigration Lawyers |
| Counsel for the First Respondent: | Mr Wood |
| Solicitors for the First Respondent: | DLA Piper |
ORDERS
The application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $7,467.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2493 of 2016
| DLH16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Before the Court is an application for judicial review in respect of a decision of the Immigration Assessment Authority (‘the Authority’) dated 19 October 2016, by which the Authority affirmed a decision of the delegate of the First Respondent (‘the delegate’) dated 29 July 2016 to refuse to grant the Applicant a Safe Haven Enterprise (Class XE) (subclass 790) visa (‘SHEV’). The Authority found the Applicant did not satisfy the criterion for the grant of a protection visa under ss.36(2)(a), 36(2)(aa), 36(2)(b) and 36(2)(c) of the Migration Act 1958 (Cth) (‘the Act’).
The Applicant relied upon an amended application and written submissions both filed 2 October 2018. The three grounds of application advanced by the Applicant in the amended application are as follows:-
“1. The Second Respondent failed to consider the Applicant's claims and, as a result, fell into jurisdictional error
Particulars
1.1 The Second Respondent, in its summary of the Applicant's claims referred and subsequently given to it by the First Respondent, set out the following claim:
ISIS was actively looking for new recruits and support in the Akkar region, Qabaait and Fnaydek areas and particularly targeted their recruitment at people with military training.
1.2 In submissions made to the First Respondent accompanying the Applicant's application for the visa, the Applicant explicitly claimed to fear recruitment by ISIS, being a family member of a high-ranking military officer and being seen as a potential recruit for ISIS by virtue of his military experience.
1.3 In the Applicant's statutory declaration, submitted to the First Respondent and referred to the Second Respondent, the Applicant stated:
ISIS was actively looking/or new recruits and support in the Akkar region, Khabit and Fnaydek. As part of their recruitment they looked at people with military training or people who were old military officers.
1.4 Despite this, the Second Respondent, at paragraph 7, stated that the Applicant "did not carry forward any claims about ISIS trying to recruit him" outside of an August 2015 letter from the Applicant's representative to the Department. The Second Respondent determined that the Applicant "made no mention of these particular claims" elsewhere, and found that the Applicant was "not pursuing these claims and therefore they will not be assessed''. These claims were clearly advanced by the Applicant and the Second Respondent failed entirely to consider these claims.
5. The Second Respondent misconceived the scope of its jurisdiction and powers, and thereby committed jurisdictional error, in failing to appreciate that it had the power to conduct an oral interview with the Applicant in respect of his claims.
6. The Second Respondent failed to assess whether it could consider certain new information sought to be put before it by the Applicant pursuant to s 473DD of the Migration Act 1958 (Cth).
Particulars
6.1 The information which the Second Respondent failed to assess is listed in footnote 1 on Court Book 322.”
The First Respondent submits that no jurisdictional error attends the decision of the Authority and that the application should be dismissed. Both parties seek costs.
The First Respondent relies upon written submissions filed 17 October 2018. The Court also had before it the evidence as contained in the Court Book.
History
The Applicant was born on 18 August 1992 and is a citizen of Lebanon. He is a Sunni Muslim from the village of Qabaait, Akkar Province. He arrived in Australia on 7 July 2013 as an unauthorised maritime arrival.
On 17 November 2015, the Applicant lodged an application for the SHEV.
The delegate refused to grant the SHEV on 29 July 2016. The delegate accepted that the Applicant has neurological damage to his brain which results in the Applicant having difficulty with planning, organisation and judgment and which can also cause him to be angry and impulsive. The delegate also accepted the Applicant’s father was a member of the Lebanese Armed Forces (LAF) for over 20 years, primarily as a Corporal. The delegate did not accept however the Applicant’s claims that Hezbollah had previously targeted his father, or that the Applicant, his father or any other family members have a profile with, or had been previously targeted by Islamic State of Iraq and Syria (ISIS). Further, the delegate did not accept the Applicant’s memory was impaired or had deteriorated in general.
On 2 August 2016 the proceeding was referred to the Authority.
The Authority had regard to the material referred by the Secretary under s.473CB of the Act and noted it included submissions made by the Applicant’s representative to the Department in August 2015, November 2015 and March 2016. Those submissions included information as to the Applicant’s psychological condition, country information and responses to adverse information. The Applicant thereafter made a written submission to the Authority dated 7 September 2016. The Authority said as to that submission, in paragraphs 4 and 5 of its Decision and Reasons (‘the Decision Record’):-
“4. On 7 September 2016 the IAA received a submission providing reasons the applicant disagreed with the delegate’s decision and inferring that aspects of his claims had been overlooked. To the extent that the submission contains arguments responding to the delegate’s decision, reasserts claims and makes reference to country information that was before the delegate, I am satisfied that this does not constitute new information and have had regard to it.
5. The submission contends that there was country information in existence at the time of the decision which the delegate failed to consider. While I note the articles existed as they predated the delegate's decision, on the evidence I am not satisfied that they were before the delegate and I find that they constitute new information for the purposes of this review. The reports relate to ISIS’ presence in Northern Lebanon, a matter that was squarely at issue at the SHEV interview which was attended by the applicant's representative, and which was also addressed in a post-interview submission. The reports are publicly available and precede the delegate's decision. The applicant was not limited to providing this information prior to or at the SHEV interview and could have done so at any time until the decision was made. The submission does not address why the reports could not have been provided before that time, or why they may be considered credible personal information. On the basis of the information before me, I am not satisfied that the information falls within s.473DD(b)(i) or s.473DD(b)(ii), nor am I satisfied there are exceptional reasons to justify considering the information.”
The Applicant’s claims were summarised by the Authority in its Decision Record, at paragraph six, relevantly, as follows:-
“- His father served in the Lebanese military for over 20 years. He attained the rank of Corporal and maintained a high profile in the area. He was targeted by various groups including Hezbollah. Between 2006 and 2008 Hezbollah tried to influence him to give them access to weapons and military intelligence.
- The situation became more dangerous for his father and their family with the rise of Islamic State (ISIS). Many thousands of ISIS fighters have crossed the Syria-Lebanon border and have positioned themselves in the Akkar and Tripoli areas.
- ISIS was actively looking for new recruits and support in the Akkar region, Qabaait and Fnaydek areas and particularly targeted their recruitment at people with military training.
- In June 2013 he and his father were returning to Akkar from Tripoli when they were stopped and surrounded by a number of cars. The men told his father to get out of the car. He refused and they bashed him. They said his father had no choice but to support ISIS. They warned that they knew their whole family and where they lived. His father was very scared and agreed to help, but told them he would need a few weeks to organise things. He eventually got out of the car and tried to help his father but he was grabbed by the ISIS men who threatened to kill him unless his father kept his word to them.
- He ran to his aunt’s house. His father was eventually released and joined him there. He then stayed with his aunt for three or four days. His cousin helped arrange for him to travel to Australia.
- About two months after he arrived in Australia, his family were attacked and threatened in Fnaydek. ISIS had gathered the whole village there and threatened to kill them if they resisted or refused to join ISIS. They singled out his father’s cousin and beheaded him in front of everyone as a warning.
- Several weeks later his father was attacked by six to seven armed men at his wife’s (applicant’s step-mother’s) house, close by to his mother’s house. His mother and sisters heard screams and went to the house. His sisters were grabbed by the men who ripped their clothes and headscarves. The men told his father that if he did not give them what they wanted within 24 hours they would rape his daughters in front of him and then behead them like they had done to his cousin. His father was very scared – he agreed to help ISIS but asked for a few hours in which to arrange things.
- His father and family fled to Beirut where they lived in a tent city for approximately nine months. They then went to Malaysia and are still there.
- ISIS have already directly threatened him. He fears being harmed (detained, tortured, killed) by them and by other extremist groups in Lebanon on the basis of his and his family’s connection to the Lebanese army and to his father who has since fled.”
Consideration
Ground One
On 28 August 2015, the Applicant, by his agent, requested that the Minister exercise his discretionary power under s.197AB of the Act to make a “residence determination” in favour of the Applicant that would effectively enable the Applicant to live in “community detention”.[1] This letter was written in advance of any application by the Applicant for any form of protection visa. In that letter, the Applicant’s agent relevantly stated:-
“4… [The applicant] was forced to flee Lebanon, leaving behind his family. His father had military training and both he and his father were wanted by ISIS to join their militia in Lebanon. Due to ongoing threats and harassment [the applicant] fled Lebanon leaving his family behind …”
[1] Submissions of the First Respondent dated 17 October 2018, 3.
The Authority noted in relation to the above and as set out in paragraph seven of the Decision Record, the following:-
“7. I note that in August 2015, prior to lodging the SHEV application, the applicant’s representative wrote to the department in relation to another aspect of the applicant’s migration status. In that letter, it was submitted that ISIS wanted the applicant and his father to join ISIS and that the applicant left Lebanon due to ‘ongoing threats and harassment’. However, I note that the applicant did not carry forward any claims about ISIS trying to recruit him, only that they threatened him to obtain military intelligence from his father. Nor did the applicant claim that there were any ‘ongoing threats and harassment’ against him influencing his decision to leave Lebanon – rather he stated that he left Lebanon shortly after being threatened once, in the roadside incident. Subsequent to this letter, the applicant submitted his SHEV application and was interviewed in relation to his protection claims. During the SHEV interview the applicant confirmed he had raised all of his claims for protection and that there was nothing more he wished to add. On this basis, and because he made no mention of these particular claims in his application, his interview, his post-interview submissions, or his submission to the IAA, I find the applicant is not pursuing these claims and therefore they will not be assessed.”
The Applicant submits that the Authority was obliged to consider the Applicant’s claim to fear recruitment by ISIS. It is not in dispute between the parties that the Authority did not consider the claim that the Applicant now says he made to the Authority, namely that ISIS was trying to recruit him. The issue is whether the Authority was required to consider that claim.
The Applicant submits that a claim which has been made by an Applicant should not lightly be considered to have been later abandoned. The Federal Court recently observed that the fact that an Applicant did not refer to a claim in his evidence before the Administrative Appeals Tribunal “[did] not provide a basis to infer an abandonment of the claim”.[2]
[2] BVC15 v Minister for Immigration and Border Protection (2017) 255 FCR 471, 55.
The Applicant further argues that in its own summary of the Applicant’s claims, the Authority identified the Applicant’s claim to fear personal recruitment by ISIS as having been made in the following:-
“ISIS was actively looking for new recruits and support in the Akkar region, Qabaait and Fnaydek areas and particularly targeted their recruitment at people with military training.”[3]
[3] Decision Record, 6.
The above paragraph from the Decision Record clearly relates to paragraph 9 of the Applicant’s statutory declaration dated 16 November 2015 which was, relevantly, as follows:-
“ISIS was actively looking for new recruits and support in the Akkar region, Khabit and Fnaydek. As part of their recruitment they looked at people with military training or people who were old military officers.”
The Court notes that thereafter, in his statutory declaration of 16 November 2015, the Applicant declared the following in respect of the above claim:-
“10. As my father was a high ranking official, this made him a target for ISIS in the area. One day my father and I were returning from Tripoli to Akkar. This was a few days before I departed Lebanon for Australia and was the reason for fleeing Lebanon. I believe it was sometime in June 2013. We were about 15-20 minutes from our home when we were stopped and surrounded by approximately four cars.
11. My father was told to get out of the car but he refused. He was then forced out of the car and bashed in front of me by about four or six men. I stayed in the car as I was so afraid of what might happen to us.
12. They told my father that he had no choice but to support ISIS and give them what they wanted. I still don't know if they were trying to force my father to join ISIS or if they wanted weapons or military information. They warned my father that they knew his whole family and where we lived. My father was so afraid that he agreed to help them but said that he needed a few weeks to organise things.
13. I eventually got out of the car and went to help my father but I was grabbed by the ISIS men and they told my father that unless he kept his word he could consider his son dead.”
The Court finds the Applicant’s claim throughout his SHEV application and review was that he was at risk as a result of his connection to his father, his father having been targeted for recruitment by ISIS, or if not recruitment, for weapons or military information. The Authority considered the risk of harm to the Applicant in this context and in so doing considered the Applicant’s claim.
As submitted by the First Respondent, the Authority’s careful analysis of the disparity between the Applicant’s agent’s letter of 28 August 2015 sent in advance of the Applicant’s protection visa application, and the Applicant’s evidence given in connection with his protection visa application, was open to it on the evidence before it. It was open to the Authority to find that the Applicant did not indicate at his interview with the delegate on 2 March 2016, in his post hearing submissions to the delegate nor in his submissions to the Authority, the claim that he feared recruitment by ISIS.
Furthermore, in the application for the SHEV, the Applicant’s agent in a covering submission, stated:-
“The Applicant is a member of a particular social group, being family members of high ranking military officers who are, as a result of their military positions, seen as either potential recruits for ISIA, or are imputed with an anti-ISIS political opinion. As detailed in the Applicant's statutory declaration he and his family have been specifically targeted by ISIS due to their connections within the Lebanese military. The Applicant and his family are recognised as having connections to the Lebanese military and are therefore targets of ISIS for either recruitment or as enemies of ISIS. The Applicant's family have already been attacked by ISIS. This includes his father's cousin being beheaded, his sisters being physically threatened and also the Applicant and his father being attacked. As his family have now publically refused to join/assist ISIS and therefore they will continue to be targeted should they return to Lebanon.”[4]
[4] Court Book, page 71.
The attached statutory declaration declared by the Applicant on 16 November 2015 did not, in fact, indicate that the Applicant had himself been targeted for recruitment, but that his father, as a high ranking military official, was a target for ISIS. The Applicant claimed that his father was assaulted by men who told him that if he did not cooperate, the Applicant would be killed. The Applicant’s claim made to the delegate and the Authority was that he fears harm from ISIS by reason of his association to his father. That claim, as stated earlier, was considered by the Authority.
The Authority also considered whether the Applicant had a real chance of being forced to be recruited by ISIS in the future. The Authority found, relevantly, as follows:-
“34. I have not accepted that the applicant and his father had been previously targeted by ISIS and I do not accept that the Arsal ISIS abduction and beheading incident bears on the applicant’s circumstances. I am satisfied that the applicant does not face a real chance of being targeted and harmed by ISIS upon return due to his father’s LAF profile, his father’s or his refusal to join ISIS, or his father’s resistance to providing intelligence. I am also satisfied that the applicant would not face a real chance of harm on account of his father’s or his father’s cousin’s links to the LAF.”
This ground must fail.
Ground Five
On 2 August 2016, the Authority wrote to the Applicant and acknowledged the referral. Attached to the Authority’s acknowledgement letter was:-
a)an “information sheet”, which relevantly noted that “[i]n very limited circumstances, we may invite you to give us new information or comments about your case in writing or at an interview”;
b)a practice direction issued under s.473FB of the Act, which relevantly noted as follows:-
“Interviews
32. Interviews may be held in very limited circumstances in accordance with the provisions set out in the Migration Act. An interview may be held for us to obtain specific new information from you or another person. An interview may also be held to allow you to comment on new information that we have considered that may be adverse to your case. We will not conduct a full rehearing of the evidence or information that was before the Department.”
On 7 September 2016, the Applicant, by his agent, made a submission to the Authority. It was relevantly, as follows:-
“Procedural fairness and requirement to interview the Applicant
3. We submit from the outset that should the IAA form preliminary concerns regarding the veracity of the Applicant’s evidence, it is incumbent on the IAA to invite the Applicant to attend an interview, so that the IAA can make its own assessment of the Applicant’s evidence and general credibility. It should be noted that Applicants are heavily reliant on assistance when preparing their initial statutory declarations, and are not always aware of the matters that may have significance to their claims, until those matters are explored in detail during an interview with the delegate.”
On 12 October 2016, the Authority emailed the applicant’s agent and stated, relevantly:-
“I note you have indicated that it may be incumbent on the IAA to invite the applicant to an oral hearing. Please note that the IAA does not conduct oral hearings and will only obtain new information in very limited circumstances …”
The Applicant submits that the Authority failed to appreciate that it had a power to conduct an interview with the Applicant under s.473DC(3) of the Act.
Section 473DB(1) of the Act is as follows:-
“(1) Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB:
(a) without accepting or requesting new information; and
(b) without interviewing the referred applicant.”
However, s.473DC of the Act provides:-
“(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 newinformation:
(a) in writing; or
(b) at an interview, whether conducted in person, by telephone or in any other way.”
This ground cannot succeed. The Authority’s email set out in paragraph 26 above, responded to a particular submission made by the Applicant. That submission was to the effect that, as a matter of “procedural fairness”, it was “incumbent” on the Authority to conduct an interview with the Applicant “so that the IAA can make its own assessment of the Applicant’s evidence and general credibility”. As submitted by the First Respondent, a fair reading of the Authority’s email, in context, was a rejection of this submission.
The Authority acknowledged in the information sheet and practice direction (as referred to in paragraph 24 above) its power in relation to new information and interviews.
The Authority was not obliged to invite the Applicant to a hearing. It had no duty to do so. It was not a requirement of procedural fairness and there was no legal unreasonableness in the Authority proceeding as it did. As this Court held in DBA16 v Minister for Immigration [2017] FCCA 320 at paragraph 46, in observations that were approved by the Federal Court in DBA16 v Minister for Immigration and Border Protection [2017] FCA 1580 at paragraph 17:-
“46. If the Authority were compelled to invite an applicant to an interview merely because his or her credibility is called into question, the result would be the Authority generally coming under an obligation to issue an invitation, as adverse credit findings are made in the majority of cases coming before the courts. That would not only be inconsistent with the text of s 473DC(2), but would also defeat the purpose of the [fast track review process].”
The Authority demonstrated its understanding of the power under s.473DC(3) of the Act. The Authority determined, in the circumstances of this case, and in its discretion, not to exercise that power.
Ground Six
Section 473DD of the Act is 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 contends that the Authority made a jurisdictional error, by not considering, against the criteria in s.473DD of the Act, two items of country information referred to in a footnote of the Applicant’s submission to the Authority dated 7 September 2016.
The Applicant’s submission to the Authority dated 7 September 2016 was, relevantly, as follows:-
“12. The delegate made an adverse credibility finding regarding the Applicant’s late disclosure of his claims related to ISIS.
…
14. The delegate also noted that the Applicant provided no ‘explanation about why the applicant would think he would be linked to terrorism if he told his account’. The delegate has not considered the explanation provided in our submission dated 7 March 2016 which states that the Applicant was aware of a number of claims that ISIS fighters were claiming persecution, entering a safe third country and then executing terrorist attacks. On the basis of this, the Applicant was afraid that if he disclosed his claims the Australian government would assume that he was from ISIS and would detain him. In support of this claim, we provided an article attached to the submission at annexure seven which supports these claims. We note that other country information was available at the time of the delegate’s decision* which supports this proposition. We submit that the IAA should take this information into account, given that the delegate has failed to do so.
15. We submit that the Applicant has put forward credible reason why he did not feel comfortable disclosing his claims relating to ISIS at his initial interview. The Applicant did not merely state that ‘he thought the government would think he was a terrorist’, the Applicant also provided a cogent reason support by country information provided to the delegate for why he held this concern. In our view, no weight should be given to the Applicant’s omission in his entry interview.
…
* See, e.g. Marc Thiessen, How ISIS smuggles terrorists among Syrian refugees (27 April 2016) Newsweek [hyperlink]; Nick Gutteridge, Rise of European jihadis: EU admits ISIS is exploiting refugee crisis to infiltrate Europe (6 April 2016) Express [hyperlink].”
(Emphasis added).
The Applicant submits the articles footnoted in the Applicant’s submission went to supporting the Applicant’s credibility.
The Applicant argues that the Authority’s failure to mention the new information in its decision, in circumstances where other sources referred to the Authority by the Applicant were cited, compels the inference that the Authority overlooked it and did not assess whether it could or should consider that additional new information pursuant to s.473DD of the Act.
Section 473EA(1) of the Act does not require the Authority to give its reasons for any “procedural” decisions that it makes, including a decision whether to consider new information under s.473DD of the Act. As Gummow J (with whom Heydon and Crennan JJ agreed) explained in Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at paragraph 68, s.430(1) of the Act (which corresponds to s.473EA(1)) “does not create any requirement that the Tribunal record generally ‘what it did’ in conducting its review, and does not require the Tribunal, in every case, to describe or state the procedural steps taken by it in reviewing the relevant decision”.
The Court accepts the First Respondent’s submission that as the Authority is not required to give reasons for its decision not to consider new information, an inference that the Decision Record contains the Authority’s reasoning for making that decision should not be drawn.
If the above finding is wrong, and the Authority overlooked the footnoted references then there is still no jurisdictional error attending the decision of the Authority. This is because what was missed by the Authority was that the Applicant asserted there was additional country information, not actually provided by the Applicant, which supported the earlier proposition of the Applicant that there had been claims in the media that ISIS fighters were claiming persecution and entering the West and executing terrorist attacks. This proposition was already before the Authority, as it had been before the delegate in country information provided to the delegate by the Applicant.
Further, the Court finds that the reference to the two items of country information could not have met the mandatory criterion in s.473DD(b) of the Act. In CVS16 v Minister for Immigration and Border Protection [2018] FCA 951 at paragraph 23, Bromwich J accepted the submissions of the Minister, where a like argument was raised by the Applicant, which were, relevantly, that:-
“29. Thirdly, the Minister submits that, if the documents in question comprised new information as defined, and it is assumed that the Authority did not ask itself the questions posed by ss.473DD(a) and (b) (that is, that it overlooked the documents), the result is not jurisdictional error, for the following reasons.
30. To determine whether a jurisdictional error has been made, the critical question will always be whether the decision-maker has made a decision outside of the limits of the functions and powers conferred upon him or her or does something which he or she lacks power to do or whether the decision-maker has “incorrectly decided something which [he or she] is authorised to decide” [Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 141 [163] per Hayne J]. The former is a jurisdictional error; the latter is an error within jurisdiction.
31. In the present context, much will depend upon the circumstances and the nature of the new information. For example, it cannot be said that invalidity is the result if, on judicial review, the information is determined not to meet the requirements of s.473DD(b) - which the Minister submits can be said of the four documents under consideration. The information contained in each document could have been provided to the Minister before a decision was made under s.65 of the Migration Act [cf s.473DD(b)(i)), or, if such information can be said to comprise credible personal information vis-à-vis the applicant, was previously known (cf s.473DD(b)(ii))].
32. Accordingly, in the Minister’s submission, even if each item met the definition of new information, the Authority’s failure to ask the questions posed by s.473DD did not, in the circumstances of the present case, affect the exercise of its decision-making power under s.473CC, since none of the four items could have been considered under s.473DD in any event. If the Authority’s exercise of power is unaffected, jurisdictional error cannot be the result.”
In the circumstances here, the new information which the Applicant argues the Authority overlooked clearly does not satisfy s.473DD(2)(b)(i) of the Act as the information was published in April 2016 and could have been provided to the delegate before the decision was made in July 2016. Nor was it personal information that was capable of being relevant to the Applicant’s submission.[5]
[5] Migration Act 1958 (Cth) s.473DD(b)(ii).
If it did fail to consider the new information, the Court finds such failure by the Authority was immaterial and therefore did not involve jurisdictional error.
The application shall be dismissed with costs.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Associate:
Date: 1 February 2019
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