EAI17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2023] FedCFamC2G 586
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EAI17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FedCFamC2G 586
File number(s): SYG 2789 of 2017 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 6 July 2023 Catchwords: MIGRATION – application for remedies under s 476 of the Migration Act 1958 (Cth) in relation to a decision of the Immigration Assessment Authority (Authority) affirming a decision not to grant a Safe Haven Enterprise visa – whether in determining whether to consider new information the Authority considered whether a document constituted credible personal information – Authority did not do so – relief granted. Legislation: Migration Act 1958 (Cth) ss 5, 5H(1), 36(2)(aa), 65, 473DC, 473DD, 476
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) Sch 2, Pt 2
Cases cited: ANL17 v Minister for Immigration & Anor [2020] FCCA 637
APH17 v Minister for Immigration, Citizenship, Migrations Services and Multicultural Affairs [2021] FCA 23
AUS17 v Minister for Immigration and Border Protection [2020] HCA 37
BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958
CSR16 v Minister for Immigration and Border Protection [2018] FCA 474
DLB17 v Minister for Home Affairs [2018] FCAFC 230
Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110
Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16
Division: General Number of paragraphs: 48 Date of hearing: 4 May 2022 Place: Sydney Solicitor for the Applicant: Mr S Hodges of Hodges Legal, by telephone Solicitor for the First Respondent: Mr A Taverniti of Sparke Helmore Lawyers, by video ORDERS
SYG 2789 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EAI17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
JUDGE MANOUSARIDIS
DATE OF ORDER:
6 july 2023
THE COURT ORDERS THAT:
1.The name of the first respondent be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The decision of the second respondent (Authority) made on 25 August 2017 affirming the decision of a delegate of the first respondent made on 17 February 2017 not to grant the applicant a Safe Haven Enterprise visa is quashed.
3.The Authority review the delegate’s decision referred to in order 2 according to law.
4.The first respondent pay the applicant’s costs set in the amount of $8,371.30.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
The applicant, a citizen of Sri Lanka, applies for remedies under s 476 of the Migration Act 1958 (Cth) (Act) in relation to a decision made by the second respondent (Authority) affirming a decision of a delegate of the first respondent (Minister) not to grant the applicant a Safe Haven Enterprise visa (SHEV).[1]
[1] There is no question that the applicant is a “fast track applicant” within the meaning of s 5 of the Act.
CLAIMS FOR PROTECTION
The applicant set out his claims for protection in a statement that formed part of his application for a SHEV.[2] The applicant there claimed as follows:
[2] CB72-75
(a)The applicant is a Tamil, and a Hindu. He was born in Northern Province, Sri Lanka.
(b)In 1997 the applicant was displaced from his family home. The applicant went to check out another house “whereupon” he was arrested by the Sri Lankan Army (SLA), and detained in a particular area for 12 days. The applicant was suspected of being a member of the Liberation Tigers of Tamil Eelam (LTTE) “due to the area” the applicant was from. The applicant was tortured.
(c)After the 12 days of detention, the applicant was transferred to another centre, and was kept there for 2 months. The applicant was abused, given little food and water, and he was questioned frequently. The applicant was then transferred to a prison. He appeared in court and was granted bail.
(d)After being granted bail, the applicant went to Trincomalee to make arrangements to return to Jaffna, but the roads were closed, and the applicant was not able to return to Jaffna until 1999.
(e)While in Jaffna the applicant worked at his sister’s shop. The applicant was regularly called in for questioning, and he was interrogated whenever there were bombings.
(f)After the war ended, the applicant opened a furniture business, but the authorities were suspicious of the applicant’s business. They questioned the applicant about how he obtained the funds to start the business, suspecting he had received funds from the LTTE.
(g)Every day before opening his shop, the applicant had to report to the “[SLA]/CID to sign in” (the “CID” being the Criminal Investigation Department). The applicant was beaten for “at least an hour” every time he checked in. On many days the applicant was unable to open his shop because he was “unwell, bruised and battered”.
(h)On a day in 2012, when the applicant was returning home from his shop at night-time, a group of approximately 12 people attacked him. The attackers attempted to stab the applicant, but he managed to escape. The applicant was treated in hospital for two days.
(i)The applicant reported the incident to the police, but the police did not investigate the incident. The applicant was told that he could not expect any assistance. The applicant reported that he suspected it was the SLA who had been regularly questioning the applicant about his funds.
(j)The applicant was very fearful for his life because the police did not investigate the attack. The applicant subsequently closed his business.
(k)Shortly after the applicant was asked by phone to report to “the Fourth Floor CID in Colombo for their inquiries”. The applicant did not comply with the request because he was very afraid; it was very well known that people who go to the “Fourth Floor do not return or if they do they have been severely tortured”. The applicant’s parents also insisted he not attend the “Fourth Floor”.
(l)The applicant started staying in different locations until arrangements could be made for the applicant to leave Sri Lanka.
(m)After the applicant left Sri Lanka the CID went to “my place” looking for the applicant. The applicant’s father was detained on two occasions and tortured. On the second occasion the applicant’s father “confessed” the applicant had fled Sri Lanka and gone to Australia.
(n)The applicant fears he will be tortured and most likely killed if he returns to Sri Lanka. The applicant fears he will be called for inquiry by the CID at the “fourth floor”, and that, given his records are on file, he will be arrested at the airport immediately on his arrival.
BEFORE THE DELEGATE
The delegate accepted: [3]
[3] CB128
(a)the applicant is of Tamil ethnicity, and was born and grew up in Northern Province;
(b)in 1997 the applicant was detained and tortured, and then released on bail;
(c)the applicant was not specifically targeted between 1997 and 2012;
(d)the applicant worked at his sister’s shop;
(e)the applicant’s sister and her husband were questioned about their own business interests;
(f)occasionally the applicant was questioned in relation to nearby security incidents;
(g)the applicant operated his own furniture store for three months in 2012 with financial assistance from his family;
(h)army personnel questioned the applicant for the purposes of extortion;
(i)the applicant had been assaulted by a group of 12 unidentified men, but this was an opportunistic crime;
(j)the applicant closed his shop in 2012 after being assaulted; and
(k)the applicant was not targeted after that time up to his departure from Sri Lanka.
The delegate, however, did not accept: [4]
(a)the applicant was suspected of using LTTE finance to open and operate his business;
(b)the applicant received a phone call asking the applicant to report to the “4th Floor” for investigations in Colombo;
(c)the applicant’s sister was questioned due to her connection with the applicant;
(d)the applicant’s court case from 1997 is ongoing; and
(e)the questioning in 2012 was related to the applicant’s detention in 1997.
[4] CB128
On the basis of these findings, and country information, the delegate was not satisfied the applicant satisfied the criteria for the granting of a SHEV.
DOCUMENTS PROVIDED TO THE AUTHORITY
On 24 April 2017 the applicant’s representative (Representative) sent an email to the Authority attaching two documents.[5] The first is a document the Representative described as “Arrest Warrant - dated 27/12/2016”.[6]
[5] CB161
[6] CB163
The “Arrest Warrant” purports to have been issued by the Registrar of the District Court in Jaffna. It is headed “Warrant of Arrest”, and is dated “27/12/2016”; the name of the applicant appears to be handwritten next to two sets of printed words, the first being “Name and address of person in respect of whom warrant is issued” and “Person to whom warrant is directed”; and next to the printed words “Particulars of alleged offence or reasons for issue of warrant” there appear the handwritten words “arrest under the Prevention of Terrorist Act”. Under the section containing the printed words “Person to whom warrant is directed”, there appear the printed words “You are hereby required and authorized [sic] to arrest the abovenamed person and to produce him before this Court”.[7]
[7] CB163
In his email of 24 April 2017, the Representative stated the following:
The PV decision was made on 17 February 2017.
The arrest warrant carries the date 27/12/2016.
The arrest warrant was handed to the applicant’s parents (by the local post office) when they returned to . . . in December 2016. The applicant’s parents had only returned to . . . in December 2016.
When the applicant’s parents had informed the applicant the applicant states the DIBP interview had concluded and as the interview was over the applicant did not see the need to forward this document at the time to the delegate.
The original document was sighted by me and appears to be a genuine document issued by the Sri Lankan police.
The applicant is able to provide the original document (arrest warrant) should the IAA require this, to make a finding.
There is nothing to suggest the “Warrant of Arrest” was issued by the police. The “Warrant of Arrest” was purportedly issued by the “Registrar District Court Jaffna”; and the only signature is that which appears above the printed word “Judge”.
The second document that was attached to the Representative’s email is a document the Representative described as a “letter dated 20/2/2016 issued by Traders Association in support of the applicant’s claims” (Letter of Support). The letter states that the applicant “has left the Island for his safety”; the applicant had a furniture store in town; and the applicant stopped the “furniture center [sic] and left the island for his safety”.
On 15 June 2017 the Representative sent an email to the Authority attaching “a press article with an English translation” (Press Article).[8]
[8] CB164-CB165
AUTHORITY’S REASONS
The documents the applicant provided to the Authority were not before the delegate, and for that reason the documents constituted “new information” within the meaning of s 473DC(1) of the Act. That meant the Authority could consider the new information only if the Authority were satisfied of the matters specified in s 473DD of the Act.
As for the “Warrant of Arrest”, the Authority referred to the statement the Representative made about how that document came into the possession of the applicant, and to the reasons the Representative communicated about why the applicant did not provide the information to the delegate. The Authority then made the following findings:[9]
The document was provided to the applicant prior to a decision being made. At his SHEV interview the applicant was made aware that he was required to put forward all of the information in support of his protection claims. I would consider the issuance of an arrest warrant crucial information to support the applicant’s claims. I am not swayed by the applicant’s reasons for not providing the document to the delegate prior to a decision being made as not seeing the need to forward this document at the time to the delegate nor is any other exceptional reason for considering the information apparent to me. I am not satisfied that exceptional circumstances exist to justify considering this new information.
[9] CB172, [6]
The Authority was also not satisfied there were exceptional circumstances to justify its considering the Letter of Support. The Authority found that the applicant provided no explanation why the letter could not have been provided to the delegate before the delegate made his decision, or why the Letter of Support is credible personal information that may have affected the consideration of the applicant’s claims.
As for the Press Article, the Authority noted the translation stated it appeared in a Tamil local newspaper on 14 May 2008, and that it made no reference to the applicant or his claims. The Authority, therefore, did not consider the Press Article to be relevant.[10]
[10] CB173, [8]
The Authority then found, or accepted the following:
(a)the applicant is from Jaffna and is a citizen of Sri Lanka;[11]
[11] CB174, [13]
(b)the applicant experienced harassment and discrimination on the basis of his Tamil ethnicity during the time of the conflict;[12]
(c)the applicant had family members that were part of the LTTE in the 1980’s that had left Sri Lanka as a result of their affiliation with the LTTE, and that the applicant had family members that were killed during the conflict;[13]
(d)the applicant was displaced, arrested, and detained by the SLA for a few months, and the applicant was visited by the ICRC (that is, the International Committee of the Red Cross), was charged either under the ER (that is, the Emergency Regulations), or the PTA (that is, the Prevention of Terrorism Act), and released on bail in 1997;[14]
(e)the applicant lived in Trincomalee with his sister and was interrogated and questioned and eventually returned to Jaffna in 1999;[15]
(f)during the years of the conflict, given that the applicant was a Tamil he may have been perceived to have supported the LTTE and been harmed as a result; [16]
(g)the applicant opened a furniture shop in 2012, which he operated for approximately three months;[17]
(h)the applicant was harassed by Sri Lankan authorities, and required to report to the SLA camp when he operated his business;[18]
(i)the applicant was harassed for a combination of reasons, including the applicant’s Tamil ethnicity, originating from Jaffna, operating a large business, and extortion; but not because the applicant was suspected of having procured LTTE funds;[19]
(j)on a day in 2012, when returning home from his shop, the applicant was attacked by 12 men, but the men were not from the Sri Lankan authorities; the attack was an opportunistic crime;[20] and
(k)the applicant closed his business because of the attack, after which the applicant returned to his previous place of residence; and members of the SLA came to the applicant’s aunt’s house and made inquiries about the applicant’s whereabouts.[21]
[12] CB175, [15]
[13] CB175, [15]
[14] CB175, [15]
[15] CB175, [15]
[16] CB175, [15]
[17] CB176, [16]
[18] CB176, [18]
[19] CB176, [18]
[20] CB176-CB177, [19]
[21] CB177, [20]
The Authority was not satisfied that:
(a)after he closed his shop in 2012, the applicant was questioned by the CID, assaulted by the CID, or that he was telephoned and required to attend the “fourth floor” of the CID offices in Colombo;[22]
(b)apart from an instance where the Sri Lankan authorities attended the applicant’s aunt’s home shortly after he closed his business, the Sri Lankan authorities showed a continued interest in the applicant, or that the applicant chose to live in different locations because of any threats by the Sri Lankan authorities;[23] and
(c)after the applicant left Sri Lanka the CID went to his home looking for him, the applicant’s father was detained on two occasions, and on the second occasion the applicant’s father confessed the applicant had fled Sri Lanka.[24]
[22] CB177, [21]
[23] CB177, [22]
[24] CB178, [23]
Having made these findings, the Authority considered whether the applicant had a well-founded fear of persecution on the ground of his being a young Tamil male from a former LTTE controlled area, a furniture businessman, and a person who had been the victim of an attempted extortion. The Authority was not satisfied there is a real chance the applicant will suffer harm now or in the reasonably foreseeable future for those reasons.[25] The Authority was not so satisfied, notwithstanding the findings I have set out in paragraph 16 of these reasons, because:
(a)country information indicates that, since the applicant departed Sri Lanka, the situation in Sri Lanka had markedly improved for Tamils;[26]
(b)five years had passed since the applicant was attacked, and the Authority was not satisfied there has been continued interest in the applicant since that time;[27]
(c)although criminal activity, including extortion, may occur in Northern Province, the Authority was not satisfied that, in the applicant’s personal circumstances, the “degree of extortion reaches the threshold for serious harm amounting to persecution”;[28] and
(d)the applicant has not claimed to have been involved with the LTTE, or supported their cause.[29]
[25] CB179, [27]
[26] CB178-CB179, [24]
[27] CB178-CB179, [26]
[28] CB179, [26]
[29] CB179, [27]
Next, the Authority considered whether the applicant has a well-founded fear on the ground that he had departed Sri Lanka illegally, and would be returning to Sri Lanka as a failed asylum seeker. For reasons that are not relevant to the ground on which the applicant relies in this Court, the Authority was not satisfied the applicant faces a real chance of persecution on this ground.[30]
[30] CB179-181, [28]-[35]
On the basis of these findings, the Authority concluded the applicant did not meet the requirements of the definition of “refugee” given in s 5H(1) of the Act.[31] Also on the basis of these findings, and on additional findings it is unnecessary to set out, the Authority concluded it was not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s being removed from Australia to Sri Lanka, there is a real risk he will suffer significant harm; and, for that reason, the Authority found the applicant does not satisfy the requirements of s 36(2)(aa) of the Act.
[31] CB181, [36]
GROUND OF APPLICATION
The applicant relies on the amended application filed on 18 June 2018 which contains four grounds. In the applicant’s written submissions, however, the applicant said he does not intend to proceed with grounds 2, 3, and 4 “as they stand or individually”. The applicant said he intends to rely only on ground 1, which is directed to the Authority’s decision not to consider the “Warrant of Arrest”; and that “it is proposed to indicate briefly how the reasons of the IAA at the paragraphs identified in [grounds 2, 3, and 4] were impacted by failure to consider the arrest warrant”.[32]
[32] Applicant’s outline of submissions, [16]
The applicant, therefore, only relies on ground 1 of the amended application, which is as follows (errors in original):
The Assessor committed jurisdictional error when applying s473DD of the Act to determine if there were exceptional circumstances to consider the arrest warrant dated 27 December 2016.
Particulars
s473DD (b) (ii) assessment:
a. The Assessor considered “the issuance of an arrest warrant crucial information to support the applicant’s claims” [CB 172, 6], this consideration amounts to a partial satisfaction of s473DD (b) (ii), that is “had it been known, may have affected the consideration of the referred applicant’s claims”
b. The Assessor did not make a finding that the arrest warrant was not credible personal information, therefore it could be said that the Authority’s consideration that the issuance of an arrest warrant crucial information to support the applicant’s claims” at [CB 172, 6] amounts to the Authority having impliedly accepted that the arrest warrant was “credible personal information ...” (s473DD (b) (ii)).
c.In any event the Applicant had satisfied the Assessor that the arrest warrant was “credible personal information” on the basis of the Authority’s consideration at [CB 172, 6] and the absence of explicit findings that the arrest warrant was not credible personal information.
s473DD (a) assessment:
d. The Assessor was not satisfied that exceptional circumstances exist to justify considering the new information being the arrest warrant [CB 172,6].
e.When applying 473DD (a) the Assessor failed to consider that “exceptional circumstances” is to be given a broad meaning, this is so because the Assessor’s consideration at [CB 172,6] namely that “the issuance of an arrest warrant crucial information to support the applicant’s claims” was an evaluation of the significance of the new information that was undertaken in the context of the Applicant’s claims, however not considered as part of 473DD (a) assessment.
f. The fact that the Assessor did consider the issuance of an arrest warrant to be “crucial information to support the applicant’s claims” ought to have been considered as part of s473DD (a) assessment.
Parties’ submissions
In his written submissions the applicant submits that, when determining whether it should consider the “Warrant of Arrest”, the Authority was required to consider cumulatively whether the matters identified in s 473DD(a) and s 473DD(b) of the Act applied to the “Warrant of Arrest”; but the Authority only considered whether s 473DD(a) applied. The applicant submits the Authority did not consider whether either of s 473DD(b)(i) or s 473DD(b)(ii) of the Act applied. The Authority, therefore, did not consider s 473DD(b)(ii) “in looking at special [sic] circumstances”.[33] The applicant further submits the Authority erred by not considering all the relevant circumstances before deciding whether they were “exceptional”, these circumstances being the following (errors in original):[34]
•The seriousness of an arrest warrant issued in 2016 for an offence under the Prevention of Terrorist Act;
•The . . . issue of the warrant, after the SHEV interview;
•The manner in which the warrant became known to the Applicant. It is admitted that there is a missing link in this consideration. The applicant’s parents collected it from the Post Office in December 2016. There is no evidence of when and how the warrant was communicated by the parents to the applicant.
•The possible outcome of a charge under the Prevention of Terrorist Act;
•The relevance of the warrant and inevitable arrest of the applicant to other issues in the delegate's decision.
[33] Applicant’s outline of submissions, [11], [12]
[34] Applicant’s outline of submissions, [15]
In short, the applicant submits the Authority made an error of the sort White J found the Authority made in BVZ16 v Minister for Immigration and Border Protection.[35]
[35] BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958
The Minister, in his written submissions, appears to accept the Authority did not expressly refer to s 473DD(b)(ii) of the Act when determining whether it should consider the “Warrant of Arrest”. The Minister submits, however, that it should be inferred the Authority did consider s 473DD(b)(ii) of the Act, noting that the Authority is not required to engage in any particular formulaic consideration of s 473DD(b), it being sufficient if, in a particular case, the Court is able to infer from the Authority’s reasons that the requisite assessment has occurred.[36] In particular, the Minister submits as follows (underlining in original):[37]
Thus, the proper inference to be drawn is that the Authority did not consider that the arrest warrant was “capable of being accepted as truthful or accurate or genuine” under s 473DD(b)(ii) precisely because, if it were credible personal information, it would have expected it to have been provided to the delegate by the applicant once it came into his possession. It was open to the Authority to reach this finding because of the unpersuasive explanation provided by the applicant for the late provision of the information.
[36] First Respondent’s Outline of Submissions, [29], relying on APH17 v Minister for Immigration, Citizenship, Migrations Services and Multicultural Affairs [2021] FCA 23, at [79]
[37] First Respondent’s Outline of Submissions, [31]. The quotation in the Minister’s submissions is taken from CSR16 v Minister for Immigration and Border Protection [2018] FCA 474, at [41], [42]
In his oral submissions Mr Taverniti, who appeared for the Minister, also submitted that the “Warrant of Arrest” by itself was incapable of constituting credible personal information.
Before I consider the parties’ competing submissions, it will be necessary to set out s 473DD of the Act, and what the cases have said about the proper construction of that section.
Section 473DD of the Act
It is necessary to begin with the notion of “new information”.[38] It is defined in s 473DC(1) of the Act as information that was “not before the Minister when the Minister made the decision under section 65” and which “the Authority considers may be relevant”. The significance of information being “new information” is that s 473DD of the Act prohibits the Authority from considering such information “[f]or the purposes of making a decision in relation to a fast track reviewable decision”, 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.
[38] This and the following 7 paragraphs substantially reproduce what I said in ANL17 v Minister for Immigration & Anor [2020] FCCA 637, at [43]-[52]
The Full Federal Court has considered s 473DD of the Act on a number of occasions, including in Minister for Immigration and Border Protection v CQW17.[39] The Full Federal Court held that before the Authority can consider “new information” it must be satisfied of the matters stated in both s 473DD(a) and of either one of s 473DD(b)(i) or s 473DD(b)(ii) of the Act. In other words, the requirements of s 473DD(a), and either one of s 473DD(b)(i) or s 473DD(b)(ii) of the Act, are cumulative.
[39] Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110
Paragraph (a) of s 473DD of the Act requires the Authority be satisfied there are “exceptional circumstances to justify considering the new information”. The meaning of “exceptional circumstances” in the context of s 473DD of the Act was considered by Gageler, Keane, and Nettle JJ in Plaintiff M174/2016 v Minister for Immigration and Border Protection:[40]
Quite what will amount to exceptional circumstances is inherently incapable of exhaustive statement. The word “exceptional”, in such a context, is not a term of art but “an ordinary, familiar English adjective”: “[t]o be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered”.
Cumulatively 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 473DD(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).
[40] Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16, at [30], [31] (footnote omitted)
Then there is s 473DD(b)(i) of the Act, which requires that the information “was not, and could not have been, provided to the Minister before the Minister made the decision under section 65”. The text of that paragraph suggests it covers both information that did not exist before the Minister made his decision under s 65 of the Act, and existing information an applicant did not know existed but which, for whatever reason, could not have been provided to the Minister by the time the Minister made his or her decision.
Next there is s 473DD(b)(ii) of the Act, which requires that the information be “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 expression “credible personal information” is not defined in the Act. Subsection 5(1) of the Act, however, provides that “personal information” has the same meaning as in the Privacy Act 1988 (Cth). Section 6 of that Act defines “personal information” as “information or an opinion about an identified individual, or an individual who is reasonably identifiable . . . whether the information or opinion is true or not”, and “whether the information or opinion is recorded in a material form or not”.
In Plaintiff M174/2016 Gageler, Keane, and Nettle JJ proceeded on the footing that “personal information” as defined in s 5(1) of the Act was the meaning to be assigned to “personal information” contained in s 473DD(b)(ii).[41] After considering the meaning of “not previously known”, their Honours concluded as follows:[42]
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.
[41] Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16, at [33]: “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””.
[42] Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16, at [34]
The next matter to note is that, although paragraphs (a) and (b) of s 473DD are cumulative, that does not imply the Authority must consider them sequentially – first paragraph (a) then either one of paragraphs (b)(i) or (b)(ii). That is because matters that are relevant to assessing whether paragraph (a) is satisfied may also be relevant to assessing whether either of paragraphs (b)(i) or (b)(ii) is satisfied, and matters that may be relevant to assessing whether either of paragraphs (b)(i) or (b)(ii) is satisfied may be relevant to assessing whether (a) is satisfied. This point was made by White J in BVZ16[43] in a passage that has been approved by the Full Federal Court on a number of occasions:[44]
The requirements of subparas (a) and (b) are cumulative but may nevertheless overlap to some extent. The Authority’s satisfaction that the new information could not have been provided to the Minister at the time of the s 65 decision (subpara (b)(i)) may contribute to its satisfaction that there are exceptional circumstances to justify considering the new information. So also may the Authority’s satisfaction that the new information is credible personal information which had not previously been known (subpara (b)(ii)). Accordingly, one would expect the IAA to consider the subpara (b) matters when considering in a given case whether the circumstances are exceptional. Obviously enough, however, the matters which may contribute to a finding that the circumstances in a particular case are exceptional may extend beyond those specified in subparas (b)(i) and (ii) and it seems improbable that the Authority could be satisfied, by reference to one matter only, that an applicant’s circumstances are not exceptional.
[43] BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958, at [9]
[44] This passage was set out with approval by the Full Federal Court in Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110, at [48] after which the Court noted: “His Honour’s view was affirmed in BBS16 at [102]-[103] (Kenny, Tracey and Griffiths JJ) and cited with apparent approval by the Full Court in CHF16 at [17]-[18] (Gilmour, Robertson and Kerr JJ) and DYS16 at [31]-[33] (Tracey, Murphy and Kerr JJ).”
In BVZ16 White J held that the Authority had confined “its consideration of whether there were exceptional circumstances to the evaluation of the” review applicant’s “explanation for not having provided the information earlier”; and by doing so, the Authority “had applied an unduly narrow interpretation of the term “exceptional circumstances””.[45]
[45] BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958, at [46]
In DLB17 v Minister for Home Affairs the Full Federal Court identified the principles that must be applied when determining whether the Authority, in the circumstances of a particular case, has undertaken the tasks s 473DD of the Act requires it to undertake, as explained by White J in BVZ16:[46]
In this case, the Authority said that it had considered the question of exceptional circumstances by reference to “all the circumstances”: see Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; (2017) 257 FCR 111 per Kenny, Tracey and Griffiths JJ (at [104]). The Authority was not obliged to articulate its reasoning in any greater detail: CVS16 v Minister for Immigration and Border Protection [2018] FCA 951 per Bromwich J (at [25]-[30] and the citations therein cited). The assessment of exceptional circumstances does not require the Authority, in all cases, to consider the matters relevant to the criterion in s 473DD(b)(ii): AQU17 (at [14]). The Authority is, however, permitted to consider these matters, including by assessing whether the information is credible: AQU17 (at [16]). Even if the credibility of information for the purposes of s 473DD(b)(ii) is to be assessed at the lower threshold suggested by the primary judge (that is that the new information is arguable), there is no prohibition on the Authority going further when considering the requirement for exceptional circumstances. That is, the Authority may, even if it accepts a contention to be arguable, test it so as to consider for itself whether it is satisfied as to the truth of the new information. Any suggestion to the contrary would be inconsistent with the decision in Plaintiff M174/2016 and the purposely broad range of considerations relevant to the establishment of exceptional circumstances.
[46] DLB17 v Minister for Home Affairs [2018] FCAFC 230, at [22]
These authorities must now be viewed in the light of what the High Court said in AUS17 v Minister for Immigration and Border Protection:[47]
Logic and policy therefore demand that the Authority assess such new information as it might obtain from the referred applicant first against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and only then against the criterion specified in s 473DD(a). If neither of the criteria specified in s 473DD(b)(i) and s 473DD(b)(ii) is met, the Authority is prohibited from taking the new information into account in making its decision on the review. Further assessment of the new information against the criterion specified in s 473DD(a) is redundant. If either the criterion specified in s 473DD(b)(i) or the criterion specified in s 473DD(b)(ii) is met, that is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a). If both the criterion specified in s 473DD(b)(i) and the criterion specified in s 473DD(b)(ii) are met, that too is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a) and which must heighten the prospect of that criterion being met.
The result, as has been recognised by the Federal Court in numerous other cases, is that the Authority does not perform the procedural duty imposed on it by s 473DD in its conduct of a review if it determines in the purported application of the criterion in s 473DD(a) that exceptional circumstances justifying consideration of new information obtained from the referred applicant do not exist without first assessing that information against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and then taking the outcome of that assessment into account in its assessment against the criterion specified in s 473DD(a). The nature of the non-performance of the procedural duty in such a case is not inaccurately characterised as a failure to take account of a mandatory relevant consideration in the purported application of the criterion in s 473DD(a).
[47] AUS17 v Minister for Immigration and Border Protection [2020] HCA 37, at [11], [12] (footnotes omitted)
Determination
I do not accept the Minister’s submission that it should be inferred the Authority impliedly reasoned that the “Warrant of Arrest” was not capable of being accepted as truthful or accurate or genuine (and therefore being credible personal information) because, if it had been, the applicant would have provided the “Warrant of Arrest” to the delegate before the delegate made his decision.
First, the Authority’s express reasoning was directed to determining whether the applicant’s explanation for not having provided the “Warrant of Arrest” to the delegate constituted exceptional circumstances: it was not directed to whether the “Warrant of Arrest” was credible personal information. That is apparent from the following passage from the Authority’s reasons (emphasis added):[48]
I am not swayed by the applicant’s reasons for not providing the document to the delegate prior to a decision being made as not seeing the need to forward this document at the time to the delegate nor is any other exceptional reason for considering the information apparent to me.
[48] CB172, [6]
Second, the Authority’s reason for not accepting the applicant’s explanation for not providing the “Warrant of Arrest” to the delegate is premised on the “Warrant of Arrest” being credible personal information; it is this (assumed) quality of the “Warrant of Arrest” that led the Authority not to accept the applicant’s explanation for not having provided it to the delegate.
Third, it is conceivable the Authority could have reasoned as follows:[49]
(a)if the “Warrant of Arrest” were credible personal information, the applicant would have provided it to the delegate (Premise);
(b)the applicant did not provide the “Warrant of Arrest” to the Authority; and
(c)the “Warrant of Arrest” is not credible personal information.
[49] Being the form of reasoning logicians call modus tollens: If A then B; not B; therefore, not A.
If the Authority did so reason, it is reasonable to expect it would have expressly concluded it was not satisfied the “Warrant of Arrest” was credible personal information; and it would have set out its reasons for so concluding. That the Authority did neither of these things is a basis for inferring, and I find, that the Authority did not reason in the manner I identify in paragraph 41 of these reasons.
Even if the Authority did reason in the manner I identify in paragraph 41 of these reasons, it would have been unreasonable or irrational for the Authority to do so. The Premise is to the effect that the applicant’s failure to provide to the delegate the “Warrant of Arrest” necessarily implies, that is, by itself establishes, that the “Warrant of Arrest” is not genuine. That, however, would have been an irrational premise for the Authority to apply, because there was evidence before the Authority, in addition to the applicant’s not having provided the “Warrant of Arrest” to the delegate, that was, or may have been, relevant to determining whether the “Warrant of Arrest” was genuine. The evidence that was before the Authority includes the “Warrant of Arrest” itself. The Authority could reasonably have concluded it was not satisfied the “Warrant of Arrest” is genuine only after it had actively engaged with the material before it that was, or may have been, relevant to whether the “Warrant of Arrest” is genuine with a view to determining whether the “Warrant of Arrest” is genuine. The Authority did not undertake any such task.
CONCLUSION AND DISPOSITION
The Authority did not consider whether the “Warrant of Arrest” was credible personal information within the meaning of s 473DD(b)(ii) of the Act and, therefore, the Authority did not consider whether the “Warrant of Arrest” might have constituted exceptional circumstances for the purposes of s 473DD(a) of the Act. The Authority, therefore, made the error the Authority was found to have made in BVZ16.
Given my conclusions, the Minister’s submission that the “Warrant of Arrest”, by itself, is incapable of being credible personal information may be taken to be a submission that the Authority’s failure to consider whether the “Warrant of Arrest” constituted credible personal information was not material to the Authority’s decision. Whether the “Warrant of Arrest” is capable of constituting credible personal information turns on whether the “Warrant of Arrest” is genuine. It is not inevitable that, had the Authority turned its mind to whether the “Warrant of Arrest” constituted credible personal information, it would have concluded it was not satisfied the “Warrant of Arrest” is not genuine.
The applicant, therefore, succeeds on ground 1 of the amended application. I will order that the Authority’s decision be quashed, and that the Authority review the delegate’s decision according to law.
The parties agreed that costs should follow the event. Mr Hodges, who appeared for the applicant, said that, if the applicant succeeded, costs should be set in the amount provided for by Part 2 of Schedule 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), that amount being $8,371.30. I will therefore order that the Minister pay the applicant’s costs set in the amount of $8,371.30.
Finally, I will order that the Minister’s name be changed to reflect his current description.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 6 July 2023
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