DQS19 v Minister for Immigration

[2020] FCCA 1638

FEDERAL CIRCUIT COURT OF AUSTRALIA

DQS19 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1638

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka – Authority refusing to consider new information under s.473DD of the Migration Act 1958 (Cth) – whether the Authority erred in this regard considered – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.5AAA, 46A, 430, 473CC, 473DA, 473DB, 473DC, 473DD, 473DE, 473EA

Cases cited:

ABJ17 v Minister forImmigration [2018] FCA 950

ADN17 v Minister for Immigration & Anor [2018] FCCA 3606

ADN17 v Minister for Home Affairs [2019] FCA 1037

AKK17 vMinister for Immigration & Anor [2017] FCCA 2486

AUH17 v Minister for Immigration [2018] FCA 388

AXB17 v Minister for Immigration & Anor [2018] FCCA 514

BDY18 v Minister for Immigration [2020] FCAFC 24

BOS17 v Minister for Immigration [2020] FCA 75

BRA16 v Minister for Immigration [2018] FCA 127

BVD17 v Minister for Immigration [2019] HCA 34

BVZ16 v Minister for Immigration [2017] FCA 958

Carrascalao v Minister for Immigration (2017) 252 FCR 352

CHF16 v Minister for Immigration [2017] FCAFC 192

CQJ17 v Minister for Immigration & Anor [2020] FCCA 1438

CSR16 v Minister for Immigration [2018] FCA 474

DGZ16 v Minister for Immigration [2018] FCAFC 12

DYS16 v Minister for Immigration [2018] FCAFC 33

Minister for Immigration v BBS16 [2017] FCAFC 176

Minister for Immigration v CED16 [2020] HCA 24

Minister forImmigration v CLV16 [2018] FCAFC 80

Minister for Immigration v CQW17 [2018] FCAFC 110

Minister for Immigration v SZGUR (2011) 241 CLR 594

Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259

Plaintiff M64/2015 v Minister for Immigration (2015) 258 CLR 173

Plaintiff M174/2016 v Minister for Immigration (2018) 353 ALR 600

Win vMinister for Immigration [2000] FCA 1457

Win v Minister for Immigration (2001) 105 FCR 212

Applicant: DQS19

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 375 of 2019

Judgment of: Judge Driver

Hearing date: 18 June 2020

Delivered at: Sydney, by telephone to Perth

Delivered on: 21 July 2020

REPRESENTATION

Counsel for the Applicant: Mr F A Robertson

Solicitors for the Applicant: AUM Legal

Counsel for the Respondents: Ms S J Oliver

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application as amended on 21 May 2020 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 375 of 2019

DQS19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. The applicant seeks judicial review of decision of the Immigration Assessment Authority (Authority) made on 22 August 2019.  The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.

2. The following statement of background facts is derived from the submissions of the parties. 

3. The applicant, a citizen of Sri Lanka, arrived in Australia as an unauthorised maritime arrival on 13 October 2012.[1]

   [1] Court Book (CB) 1-16

4. On 8 April 2016, the bar pursuant to s.46A of the Migration Act 1958 (Cth) (Migration Act) having been lifted, the applicant applied for the visa.[2]

   [2] CB 38-104; CB 117-142

5. On 24 August 2016, the applicant attended an interview before the delegate.[3]

   [3] CB 175

6. On 2 November 2016, the delegate refused to grant the application for the visa.[4] The decision was referred to the Authority for review pursuant to Part 7AA of the Migration Act on 4 November 2016.[5]

   [4] CB 182-198

   [5] CB 210

7. On 24 November 2016, the applicant’s representative provided written submissions to the Authority.[6]

   [6] CB 226-233

8. On 7 December 2016, the Authority affirmed the decision.[7] The applicant sought judicial review of that decision[8] and was ultimately successful in having the decision set aside on appeal.[9] The matter was remitted to the Authority for reconsideration on 4 July 2019.[10]  In allowing the appeal, Mortimer J held that the Authority had not considered a claim made by the applicant that he would be detained by the authorities on his return to Sri Lanka on the basis that he had failed to “come forward” as a person who had “been with” the LTTE when prompted to do so.  In other words, the applicant claimed to fear harm because he had misled authorities about his involvement with the LTTE.  A contention by the Minister that the error was not material was ultimately not pursued.[11]

   [7] CB 244-259

   [8] ADN17 v Minister for Immigration [2018] FCCA 3606, CB 260

   [9] ADN17 v Minister for Home Affairs [2019] FCA 1037 (ADN17 FCA), CB 261-262

   [10] CB 261-262

   [11] see ADN17 FCA at [17]-[19]

9. On 18 August 2019, the applicant’s representative provided untranslated documents to the Authority with a request for a further seven days in which to provide translations and submissions.[12]

   [12] CB 270-276

10. On 20 August 2019, the Authority refused to grant the applicant’s request for additional time to provide submissions, and noted that any information that was to be provided needed to satisfy s.473DD before it could be considered.[13]

    [13] CB 277-278

11. On 21 August 2019, the applicant’s representative provided translations of the documents provided on 18 August 2019.[14]

    [14] CB 281-291

12. On 22 August 2019, the Authority affirmed the decision to refuse to grant the applicant a visa.[15] In conducting the review, the Authority considered whether it could have regard to “new information” which the applicant had provided to it on 25 November 2016 and 18 August 2019. 

    [15] CB 297-311

13. In relation to the material provided on 25 November 2016, the Authority:

    a)found that parts of the submissions referred to and made arguments in relation to the delegate’s decision, and to that extent they were not “new information”;[16] and

    b)found that the submissions referred to country information that was not before the delegate and was therefore “new information”.[17] In relation to this new information, the Authority found that the applicant had not satisfied it as to the matters in s.473DD(b) of the Migration Act, and that it was not satisfied that exceptional circumstances existed to justify considering the new information.[18]

    [16] CB 298, [6]

    [17] CB 298, [7]; the relevant country information is identified in footnotes 1-7 of the Authority’s decision

    [18] CB 299, [8]

14. In relation to the material provided on 18 August 2019,[19] the Authority noted that the applicant had provided a letter and attachments, and on 21 August 2019, had provided translations of the attachments.[20] The attachments related to the applicant’s cousin who, according to the letter, was taken by force to join the LTTE[21] and was captured at the end of the war and had disappeared.[22] The Authority noted that none of this information was before the delegate, and therefore it was “new information”.[23] The Authority found that the applicant had not satisfied it that the new information was “credible personal information which, had it been known, may have affected the consideration of the applicant’s claims” as per s.473DD(b)(ii), and the Authority was not satisfied that there were exceptional circumstances to justify considering this new information.[24]

    [19] CB 284-291

    [20] CB 299, [9]

    [21] Liberation Tigers of Tamil Eelam

    [22] CB 299, [9]

    [23] CB 299, [9]

    [24] CB 299-300, [10]

The current proceedings

1. These proceedings began with a show cause application filed on 24 September 2019.  The applicant now relies upon an amended application filed on 21 May 2020.  There are five grounds in that application:

   Ground 1

   The decision of the Immigration Assessment Authority (‘Authority’) was vitiated by jurisdictional error in that the conclusion that there were not exceptional circumstances to justify consideration of the new information referred to in its’ reasons at [9] – [10] was legally unreasonable.

   Ground 2

   The decision of the Immigration Assessment Authority (Authority) was vitiated by a constructive failure to exercise jurisdiction in that the Authority misapplied section 473DD(b) of the Migration Act 1958 (Cth), erroneously requiring both sub-paragraphs of s 473DD(b) to be satisfied, alternatively failing to consider whether s 473DD(b)(i) was satisfied, thereby resulting in a misconception of what the statutory power it was exercising entailed.

   Ground 3

   The decision of the Immigration Assessment Authority (Authority) was vitiated by a constructive failure to exercise jurisdiction in that the Authority misapplied section 473DD(a) of the Migration Act 1958 (Cth), by failing to consider whether that section was satisfied on the basis that the ‘new information’ fell within either s 473DD(b)(i) or (ii) and that combined with the timing of the receipt of the information sufficiently constituted exceptional circumstances and instead erroneously relying on its findings in respect of s 473DD(b)(ii) to conclude that exceptional circumstances do not exist.

   Ground 4

   The decision of the Immigration Assessment Authority (Authority) was vitiated by a constructive failure to exercise jurisdiction in that the Authority misconstrued or misapplied the words 'credible personal information' in section 473DD(b)(ii) of the Migration Act 1958 (Cth), resulting in a misconception of what the statutory power it was exercising entailed.

   Ground 5

   The decision of the Immigration Assessment Authority (Authority) was vitiated by a constructive failure to exercise jurisdiction in that the Authority misconstrued or misapplied the words 'may have affected the consideration of the referred applicant’s claims' in section 473DD(b)(ii) of the Migration Act 1958 (Cth), resulting in a misconception of what the statutory power it was exercising entailed, alternatively the conclusion was legally unreasonable

2. The only evidence I have before me is the court book filed on 6 November 2019. 

3. Both the applicant and the Minister filed helpful pre-hearing submissions and made extensive oral submissions through their representatives at the trial on 18 June 2020. 

Consideration

1. As is noted in the applicant’s submissions, the amended grounds in support of this application are all inter-related. They all relate to the allegedly erroneous reasoning process adopted by the Authority when dealing with “new information”.

2. The new information that was sought to be relied upon is set out at CB 284 – 291 and referred to in the submissions made to the Authority.[25] That material goes to the contention that the applicant’s cousin “vanished” after admitting forced LTTE involvement to the authorities during the Sri Lankan civil war. That new information supported the applicant’s claim that he feared harm from authorities arising from his forced involvement with the LTTE.

   [25] CB 271-272

3. The Authority was not satisfied at [9]-[10] that the information was credible personal information.  The Authority was also not satisfied at [10] that there were exceptional circumstances which justified the consideration of that material.  No separate reasons were given for the conclusion about exceptional circumstances.  Rather, it was a conclusion articulated after concluding that the new information was not “credible personal information”.

4. The applicant’s contentions in relation to the ground are clearly open and finely honed. The issues in relation to the various elements of s.473DD are highly technical. On the basis of the currently available authorities and having considered the parties’ submissions, both written and oral, I prefer the Minister’s submissions on the grounds advanced.

5. As noted above, all five grounds in the amended application filed on 21 May 2020 relate to the Authority’s application of s.473DD of the Migration Act in respect of the “new information” the applicant sought to put before it (in the material provided on 18 August 2019). In the circumstances, the application for review is concerned only with the following two paragraphs of the Authority’s decision:[26]

   [26] CB 299-300, [9]-[10]

   On 18 August 2019, the applicant, through his agent, provided a letter and attachments to the IAA. On 21 August 2019, the applicant provided translations of these attachments. The attachments relate to the applicant’s cousin who, according to the letter, was also taken by force to join the LTTE and was captured at the end of the war. The applicant states that this cousin came forward and disclosed his recruitment to the authorities and this was the last that the family saw of him. The applicant states that he believed his cousin was being detained and was not aware that he had in fact disappeared at the time of the interview. The letter states that the applicant produced these documents after the agent asked for proof that anyone that the applicant knew had come forward and suffered harm as a result. None of this information was before the delegate and I am satisfied that it is new information.

   The documents do not identify the cousin’s profile with the LTTE or the reason(s) for his detention beyond stating that he had surrendered to the Sri Lankan Army (SLA) on 18 May 2009, which I note was at the immediate end of the civil conflict. The applicant asserts that the cousin was a forced LTTE recruit but there is no other evidence of the cousin’s status or involvement with the LTTE. The applicant has not claimed at any time that he was ever questioned about any family members other than his father, or that he fears harm because of any association with any family members other than his father. There is nothing in the provided documents to indicate that the cousin has been, or will be, linked to the applicant in any way. Even accepting that the applicant’s cousin was detained and disappeared at the end of the war and is still missing, the documents now provided do not support the assertion that the authorities are now detaining or otherwise harming persons who did not disclose a previous, brief and coerced involvement with the LTTE. There is other information before me which refers to the risks faced by returning asylum-seekers, including those who were, or are imputed to have been, involved with the LTTE. Having regard to all of these factors, the applicant has not satisfied me that this new information is credible personal information which, had it been known, may have affected the consideration of the applicant’s claims. I am not satisfied that there are exceptional circumstances to justify considering this new information.

The grounds of review

a)Grounds 1 and 3 relate to the Authority’s conclusion that there were not exceptional circumstances to justify considering this new information;

b)Ground 2 contends that the Authority erred and misapplied s.473DD(b) of the Migration Act, by erroneously requiring that both subparagraphs of s.473DD(b) be satisfied; and

c)Grounds 4 and 5 relate to the Authority’s consideration of whether the new information was “credible personal information” under s.473DD(b)(ii) of the Migration Act.

General principles in relation to “new information”

1. The Authority had jurisdiction to review the decision of the delegate under s.473CC, Part 7AA of the Migration Act. The combined effect of ss.473DA(1), 473DB(1) and 473DC(2) of the Migration Act, is that the primary obligation of the Authority is to conduct a review of a delegate’s decision on the papers, “without accepting or requesting new information” and “without interviewing the referred applicant”.[27] That primary obligation is imposed “subject to this Part”.[28] Section 473DD is a provision in Part 7AA that can qualify the primary obligation, but only in circumstances where the restrictions on the consideration of “new information” by the Authority contained in that section are satisfied.

   [27] BVD17 v Minister for Immigration [2019] HCA 34 at [14]; DGZ16 v Minister for Immigration [2018] FCAFC 12 at [69]

   [28] BVD17 at [14]

2. 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.[29]

   [29] see Plaintiff M174/2016 v Minister for Immigration (2018) 353 ALR 600 at [24] per Gageler, Keane and Nettle JJ

3. It has been said that “information” is simply that of which one is informed.[30] Another definition of “information” is knowledge of relevant facts or circumstances communicated to or received by the decision maker.[31]  The current definition is the communication of knowledge about some particular fact, subject or event that is of an evidentiary nature.[32]

   [30] see Win vMinister for Immigration [2000] FCA 1457 at [11] per Katz J; see also the appeal: Win v Minister for Immigration (2001) 105 FCR 212 at [16]–[22] per Whitlam, Tamberlin and Sackville JJ

   [31] see ABJ17 v Minister forImmigration [2018] FCA 950 at [25] per Bromwich J; AKK17 vMinister for Immigration [2017] FCCA 2486 at [45]; Minister forImmigration v CLV16 [2018] FCAFC 80 at [51] per Flick, Griffiths and Perry JJ. Note, however, ABJ17 at [27] per Bromwich J

   [32] Minister for Immigration v CED16 [2020] HCA 24 at [21]

4. It is clear that the purpose of Part 7AA is to provide a mechanism for a fair but limited review of fast track reviewable decisions. The scheme of the Migration Act encourages fast track applicants to put forward complete claims for protection at an early stage of an application (consistently with the requirements of s.5AAA(2) of the Migration Act).

1. Consistent with the primary obligation of the Authority and the limited nature of a review under Part 7AA, the Authority can only consider “new information” if it is satisfied that the requirements of s.473DD had been met. Section 473DD provides:

   For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

   (a)the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

   (b)the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

   (i)was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

   (ii)is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.

2. Where the “new information” is given, or proposed to be given, by the referred applicant, the requirements of s.473DD(a) and (b) must be satisfied.

3. The requirements in s.473DD(a) and (b) are cumulative requirements, the Authority must not consider new information unless it is satisfied that both paragraph (a) and paragraph (b) of s.473DD are satisfied.[33]

   [33] Plaintiff M174/2016 at [31]; Minister for Immigration v CQW17 [2018] FCAFC 110 at [36]; BVZ16 v Minister for Immigration [2017] FCA 958 at [9] ; Minister for Immigration v BBS16 [2017] FCAFC 176 at [102]; CHF16 v Minister for Immigration [2017] FCAFC 192 at [17]-[18] and DYS16 v Minister for Immigration [2018] FCAFC 33 at [31]

4. The cumulative structure of s.473DD(a) and (b) means that the Authority is prohibited from considering new information unless it is satisfied of the matters in paragraphs (a) and (b)(i) or (b)(ii).[34] For that reason, if the Authority is not satisfied that the requirements of s.473DD(b) were met, a failure to explicitly consider s.473DD(a) would ordinarily not give rise to jurisdictional error.[35]

   [34] CQW17 at [67]; BRA16 v Minister for Immigration [2018] FCA 127 at [26]

   [35] BDY18 v Minister for Immigration [2020] FCAFC 24 at [26]; AUH17 v Minister for Immigration [2018] FCA 388 at [33]-[34]; CQW17 at [68]; BOS17 v Minister for Immigration [2020] FCA 75 at [40]

1. In relation to “exceptional circumstances” under s.473DD(a), it is well settled that what will amount to exceptional circumstances is incapable of exhaustive statement.[36] It is also well settled that the matters under s.473DD(b)(i) and (ii) are potentially relevant in considering whether “exceptional circumstances” exist under s.473DD(a). In BDY18, the Full Federal Court stated at [25]:

   Whether a particular instance is exceptional requires a contextual evaluation by reference to all the circumstances of the case. The requisite state of satisfaction as to whether there are exceptional circumstances cannot be formed by focussing upon a particular aspect to the exclusion of other matters. Section 473DD(a) requires all the circumstances to be evaluated together to determine whether they are exceptional. The phrase ‘exceptional circumstances’ is to be given a broad meaning and matters that form part of those circumstances may overlap with those referred to in s 473DD(b). …

   [36] Plaintiff M174/2016 at [30]; CQW17 at [69]

2. In AQU17 v Minister for Immigration,[37] the Full Federal Court stated at [14]:

   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.

   [37] [2018] FCAFC 111

3. In AQU17 the Full Federal Court also considered the facts or matters that might materially bear on the Authority’s consideration of “exceptional circumstances”, and commented at [17]:

   Although the appellant argued that the Authority took too narrow a view as to what constitutes exceptional circumstances, the appellant was unable to point to any fact or matter materially bearing upon the Authority’s consideration as to whether it was satisfied of the requirement under s 473DD(a) that was not taken into account and, had it been taken into account, would have materially borne upon its consideration. In our opinion, it has not been shown that the Authority took an unduly restricted approach to the question of whether exceptional circumstances existed. The fact that a different account was put to the Authority would not, of itself, constitute “exceptional circumstances” to justify consideration of the new information. 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”. In the present case, as the Authority reasoned, the new information was information which the appellant could have provided the delegate in response to direct questioning on the topic and was information which was inconsistent with the version of events he gave the delegate. In our opinion, it was open to the Authority to decide, having regard to those matters, that it was not satisfied that exceptional circumstances existed.

4. Having regard to the above discussion and principles, the Authority may, depending on the circumstances of the case, err in its consideration of s.473DD(a) if it:

   a)fails to consider the matters in s.473DD(b) before concluding the requirements in s.473DD(a) were not satisfied;[38] or

   b)takes too narrow a construction to the term “exceptional circumstances”, by, for example, relying solely on its findings in relation to the matters in s.473DD(b) as the basis for its finding that there were not exceptional circumstances to justify consideration of new information.[39]

   [38] CQW17 at [69]; BOS17 at [40]; and BVZ16

   [39] BVZ16; BBS16 at [102]-[106]; and CHF16

5. In Plaintiff M174/2016 the High Court considered what the Authority needed to be satisfied of for the purposes of s.473DD(b)(ii) of the Migration Act. The majority (Gageler, Keane and Nettle JJ) stated at [33]-[34]:

   The 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 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 or 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.

   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.

6. In CSR16 v Minister for Immigration,[40] Bromberg J found jurisdictional error, in that the Authority in that case had imposed a higher standard of satisfaction than the criteria in s.473DD(b)(ii) requires. The error in CSR16 was the intellectual step of deliberating on and forming a concluded view about an applicant’s claims at a preliminary stage. At [41], Bromberg J stated:

   In my view all that the “credible” element of the 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. The s 473DD(b)(ii) criteria is concerned with an earlier or anterior stage of the review directed at whether “new information” should be received by the Authority so that it may be considered at the deliberative stage.

   [40] [2018] FCA 474

7. His Honour went on to find at [42]:

   The criteria is a filtering mechanism designed to separate information worthy of consideration at the deliberative stage from that which is not. In that context, the word “credible” is used in relation to information, not in the sense that the information is believed, but in the sense that the information is capable of being believed. It is only information that the Authority is satisfied is “evidently not credible” (VEAL v Minister for Immigration and Multicultural Affairs [2005] HCA 72; (2005) 225 CLR 88 at [17] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ) that fails to meet the credibility requirement imposed by the s 473DD(b)(ii) criteria. 

8. The Minister considers that CSR16 was wrongly decided. The Minister observes that Parliament has plainly contemplated that the Authority might not be satisfied certain new information is “credible”, otherwise s.473DD(b)(ii) would not provide an efficient “filtering mechanism”.[41] To date, however, the Full Federal Court has not yet determined the Minister’s contentions regarding this.[42] At this time, this Court is bound by CSR16, in circumstances where it applies.

   [41] CSR16 at [42]

   [42] The Minister is arguing this in the Federal Court appeal of Minister for Immigration v BTW17 (WAD20/2020), which the Minister is seeking to be heard before a Full Bench. The matter is yet to be listed for hearing.

9. As to the state of satisfaction to be reached, the Full Federal Court in BDY18 relevantly observed at [28]:

   …both requirements in section 473DD depend on the state of satisfaction of the Authority. It is for the Authority, and not the Court on review, to form the required state of satisfaction. The Court may take a different view but that would be insufficient to establish jurisdictional error. There must be an error of a kind that demonstrates that the required state of satisfaction has not been formed by the Authority. In that regard, an implied standard of reasonableness must be met.

10. Because the considerations that are relevant to s.473DD(b) may also be relevant to s.473DD(a), an error as to the formation of the state of satisfaction as to one may infect the other.[43]

    [43] BDY18 at [26]

11. In relation to judicial review generally, it is well settled that, in reviewing the Authority’s decision, its reasons should not be scrutinised “minutely and finely with an eye keenly attuned to the perception of error”.[44]

    [44] Carrascalao v Minister for Immigration (2017) 252 FCR 352 at [45], quoting Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at [30]

Grounds 1 and 3

1. I agree with the Minister that the applicant’s submissions on Grounds 1 and 3 incorrectly assume that the only basis for the finding that the Authority was not satisfied that there were “exceptional circumstances” were what the applicant describes as the conclusions as to whether the information was “credible personal information” for the purposes of s.473DD(b)(ii) of the Migration Act.

2. I accept that the discussion at [9]-[10] of the Authority’s decision cannot and should not be read as limited to its consideration of whether the requirements of s.473DD(b)(ii) were satisfied. There is no basis to read the Authority’s decision so narrowly.

3. Rather, in those paragraphs, the Authority discussed a broad range of matters that were relevant to its consideration of all of the matters under s.473DD. The paragraphs reveal that the Authority evaluated all of the circumstances it considered relevant in its assessment of the requirements of s.473DD, and in particular s.473DD(a). For example:

   a)at [9], the Authority discussed the reasons given by the applicant for the late provision of the information, and why the information was not provided to the delegate before the delegate made his decision, which was relevant to its consideration of s.473DD(a), (b)(i) and (b)(ii). In particular, the Authority states:

   …The applicant states that he believed his cousin was being detained and was not aware that he had in fact disappeared at the time of the interview” (which must be a reference to the visa interview with the delegate) and “The letter states that the applicant produced these documents after the agent asked for proof that anyone that the applicant knew had come forward and suffered harm as a result;

   b)at [10], the Authority discussed what might be seen as deficiencies in the materials provided (for example, that they did not identify the cousin’s profile with the LTTE, and that there was no evidence of the cousin’s status or involvement in the LTTE). These were relevant considerations for the purposes of ss.473DD(a) and (b)(ii);

   c)at [10], the Authority also discussed the failure of the applicant to raise the issues concerning his cousin earlier, which were relevant considerations for the purposes of ss.473DD(a), (b)(i) and (b)(ii); and

   d)at [10] the Authority also discussed the review material before it, which included country information as to the treatment of returnees with links or imputed links to the LTTE, which was inconsistent with the applicant’s claims to fear harm. Again, these were relevant considerations for the purposes of both ss.473DD(a) and (b)(ii). 

4. The fact that, contextually, the Authority referred to its non-satisfaction in relation to the matters under s.473DD(b)(ii) before referring to s.473DD(a) is not sufficient for a conclusion to be drawn that the discussion preceding those conclusions was limited only to a consideration of s.473DD(b)(ii) of the Migration Act.

5. In the circumstances, insofar as these grounds rely on the Authority’s findings in [9]-[10] as being limited only to a consideration of s.473DD(b)(ii), the grounds are unpersuasive and no error arises.

6. Further, in relation to Ground 1, I reject the contention that the factors in ss.473DD(b)(i) and (ii) of the Migration Act must, in all cases, be considered by the Authority in deciding whether “exceptional circumstances” exist. Section 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).[45] Whilst in some 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, whether those factors will have bearing upon that decision will depend on the particular case.[46]

   [45] AQU17 at [14]

   [46] AQU17 at [14]

7. Ground 1 does not establish jurisdictional error on the part of the Authority.

8. Further, in relation to Ground 3, the present case does not involve the kind of error found in BDY18. In the present case, the Authority’s reasons in relation to “exceptional circumstances” were not confined solely to its consideration of the matters in s.473DD(b)(ii) (for the reasons set out above). Rather, in the present case, the Authority evaluated all of the circumstances relevant in its assessment of the requirements of s.473DD(a).

Ground 2

1. I accept the Minister’s submission that there is no basis to infer that the Authority misconstrued the requirements in s.473DD(b)(i) and (ii) and failed to understand that they were alternatives to each other.

2. The only basis for drawing such an inference would be the absence of any explicit reference to s.473DD(b)(i) in the Authority’s reasons. However, I am unwilling to infer that the Authority’s discussion in [9]-[10] was a complete statement of the Authority’s reasons for why it was not satisfied that the requirements of s.473DD were satisfied in this case.

3. Section 473EA(1) of the Migration Act does not require the Authority to give its reasons for any “procedural” decision that it makes, including a decision whether to consider new information under s.473DD.[47]

   [47] see BVD17 at [49]; see also AXB17 v Minister for Immigration & Anor [2018] FCCA 514 at [29]

4. In Minister for Immigration v SZGUR at [69],[48] Gummow J (with whom Heydon and Crennan JJ agreed) explained that s.430(1) (which corresponds with s.473EA(1), as confirmed by the Full Federal Court in BVD17 at [49]:

   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.

   [48] (2011) 241 CLR 594

5. As further explained by the High Court in Plaintiff M64/2015 v Minister for Immigration,[49] where a decision maker is not obliged to give reasons for a decision, “it is difficult to draw an inference that the decision has been attended by error of law from what has not been said by the [decision maker]”.[50]

   [49] (2015) 258 CLR 173 at [25]

   [50] It does not follow, however, that the Authority is entitled to be completely silent in relation to its exercise of power under s.473DD: see CQJ17 v Minister for Immigration & Anor [2020] FCCA 1438 at [27]-[28].

6. In any event, as the requirements in s.473DD(a) and (b) are cumulative, the Authority did not need to expressly refer to s.473DD(b)(i) in its reasons, as the conclusion in relation to s.473DD(a) was sufficient to prohibit the Authority from considering the new information.

7. For that reason, given the Authority was not satisfied that the requirement of s.473DD(a) was met, any purported failure to explicitly consider s.473DD(b)(i) (in this case) would not give rise to material jurisdictional error in any event.[51]

   [51] BDY18 at [26]; AUH17 at [33]-[34]; CQW17 at [68]

Grounds 4 and 5

1. I also accept that the Authority’s findings under s.473DD(b)(ii) in the present case do not give rise to jurisdictional error of the kind identified in CSR16 In CSR16, Bromberg J found jurisdictional error, in that the Authority had imposed a higher standard of satisfaction than the criteria in s.473DD(b)(ii) requires. The error in CSR16 was the intellectual step of deliberating on and forming a concluded view about a referred applicant’s claims at a preliminary stage.

2. In the present case, in my view, CSR16 does not apply, as the Authority did not form a concluded view about the applicant’s claims when applying s.473DD(b)(ii). Its reasons do not reveal that the Authority interpreted “credible” in s.473DD(b)(ii) as requiring anything more than “capable of being accepted… as truthful”.[52]

   [52] CSR16 at [41]

3. The Authority in the present case did not explicitly express concerns about the credibility of the new information. It did not make any express finding that the new information was not true. Rather, in considering s.473DD generally, the Authority noted the information was provided late in the application process and discussed the reasons given for not raising the information earlier, as well as referring to deficiencies in the new information, including the fact that the new information did not provide information as to the cousin’s, profile, status or involvement in the LTTE.[53]

   [53] see CB 299-300, [10]

4. The matters discussed by the Authority at [9]-[10] were not only relevant to whether the new information was capable of being believed, but also to whether, had it been known, it may have affected the consideration of the applicant’s claims. In this regard, the Authority’s observations in [10] about the deficiencies in the information (that is, the lack of details concerning the cousin’s profile, status or involvement with the LTTE), together with its discussion of country information as to assessing the risk to returnees who may be imputed with LTTE links, was directly relevant to the probative value of the new information and whether it may have affected the consideration of the applicant’s claims. It can be inferred that the Authority was saying that, without details concerning the cousin’s profile, status or involvement with the LTTE, the information was of little probative value to the assessment, having regard to the available country information, of the treatment the applicant may receive on return to Sri Lanka. It cannot, however, be inferred that the Authority preferred country information as to the risks faced by returning asylum-seekers over the account in the new information as to what had happened to the applicant’s cousin.

1. In the circumstances of this case, there is simply no basis for the Court to find that the Authority misunderstood or applied a higher threshold that was required under s.473DD(b)(ii).

2. Further, there is no basis to find that the Authority’s finding that the information was not “credible personal information” rests on a conclusion as to credibility. The text of the Authority’s decision does not support such a conclusion. The Authority relevantly found at [10]:[54]

   …the applicant has not satisfied me that this new information is credible personal information which, had it been known, may have affected the consideration of the applicant’s claims. …

   [54] CB 299-300

3. The findings of the Authority in the present case are distinguishable from those considered in BOS17.  In BOS17, the Authority had only stated it was not satisfied that the relevant information was “credible personal information”, it did not explicitly refer to the second part of the test under s.473DD(b)(ii) that the information, if it had been known, may have affected the consideration of the referred applicant’s claims. Whilst in BOS17, the Court rejected the Minister’s submission that the Authority’s conclusion at [44] that the new information was not “credible personal information” should be read as a shorthand reference to a conclusion that the letter did not satisfy the entire test under s.473DD(b)(ii), the present case does not involve a similar difficulty. In the present case, the Authority referred to the entirety of the test in s.473DD(b)(ii) in its conclusionary paragraph. It did not limit its conclusion to whether the information was “credible personal information”.

4. In relation to Ground 5 in particular, I accept that there is no basis for the Court to infer that the Authority misunderstood the second part of the test in s.473DD(b)(ii) (that is, had the new information been known, it may have affected the consideration of the applicant’s claims). The language used by the Authority in [10] is a direct reflection of the terms of s.473DD(b)(ii) in the Migration Act. The Authority does not restate the test, state it incorrectly, or ever refer to the test requiring that the new information “would” result in a different decision.

5. At [10], the Authority stated:

   …There is nothing in the provided documents to indicate that the cousin has been, or will be, linked to the applicant in any way. Even accepting that the applicant’s cousin was detained and disappeared at the end of the war and is still missing, the documents now provided do not support the assertion that the authorities are now detaining or otherwise harming persons who did not disclose a previous, brief and coerced involvement with the LTTE.

6. However, that statement does not indicate a misunderstanding by the Authority of the requirement that the new information may as opposed to would affect the consideration of the applicant’s claims. Rather it is a recognition of the fact that the Authority had before it country information as to the risk of harm to returnees, even those imputed with LTTE links, which did not support the applicant’s claims.

7. I am satisfied that the Authority’s findings under s.473DD(b)(ii) were open to it and no jurisdictional error arises.

8. In any event, even if the Authority erred in its application of s.473DD(b)(ii) , the Authority’s finding that there were no exceptional circumstances under s.473DD(a) to justify considering the new information was sufficient to prevent the Authority from having regard to the new information. In the circumstances, a jurisdictional error does not arise in this case.

Conclusion

1. The applicant has failed 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.

2. I will hear the parties as to costs.

I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate:

Date: 21 July 2020