EBZ17 v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

EBZ17 v Minister for Home Affairs [2019] FCA 661

Appeal from: EBZ17 v Minister for Immigration & Anor [2019] FCCA 79
File number: NSD 186 of 2019
Judge: ROBERTSON J
Date of judgment: 13 May 2019
Catchwords: MIGRATION – appeal from Federal Circuit Court of Australia dismissing an application for judicial review of decision of Immigration Assessment Authority – whether the Authority erred in not considering expert report, that is, in concluding that it was not satisfied that exceptional circumstances existed to justify considering the new information
Legislation: Migration Act 1958 (Cth) s 473DD
Cases cited: Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 353 ALR 600
Date of hearing: 13 May 2019
Registry: New South Wales
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 35
Counsel for the Appellant: The Appellant appeared in person with the aid of an interpreter
Counsel for the First Respondent: Mr J Kay Hoyle
Solicitor for the First Respondent: Mills Oakley Lawyers
Counsel for the Second Respondent: The Second Respondent submitted to any order of the Court, save as to costs

ORDERS

NSD 186 of 2019
BETWEEN:

EBZ17

Appellant
AND:

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

JUDGE:

ROBERTSON J

DATE OF ORDER:

13 MAY 2019

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs, as agreed or assessed.

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


REASONS FOR JUDGMENT

ROBERTSON J:

Introduction

  1. This is an appeal from the judgment and orders of a judge of the Federal Circuit Court of Australia given and made on 23 January 2019.

  2. The appellant was found by the Immigration Assessment Authority (the IAA) to be a citizen of Pakistan who was born near Parachinar in Upper Kurram Agency.  He lived in or near Parachinar all his life before travelling to Australia.  He is Pashtun.  He is a member of the Turi tribe and a Shia Muslim.  He is a Syed, a person descended directly from the Prophet Muhammad.

  3. The appellant arrived in Australia on 28 September 2012 as an unauthorised maritime arrival. On 16 February 2016 he lodged an application for a protection visa.

  4. On 15 August 2017 the IAA affirmed a decision of a delegate of the first respondent, the Minister, made on 12 December 2016, not to grant the appellant a Safe Haven Enterprise Visa, pursuant to s 65 of the Migration Act 1958 (Cth).

  5. The primary judge dismissed the appellant’s application for judicial review of the decision of the IAA.

    Ground of appeal

  6. The ground of appeal is in the following terms:

    The Immigration Assessment Authority (“the Authority”) found in paragraph 14 of its decision that, on application of s 473DD of the Migration Act 1958 (Cth), exceptional circumstances did not exist to justify considering a supplementary expert report provided by the appellant…

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Details
Case
[2019] FCA 661
Decision Date

CaseChat Overview and Summary

In the case of EBZ17 v Minister for Home Affairs, the appellant sought judicial review of a decision made by the Immigration Assessment Authority (IAA) regarding their application for a visa. The appellant contended that the IAA had erred in not considering an expert report submitted as part of their application, which they argued contained new information that should have been taken into account. The Federal Circuit Court of Australia dismissed the appeal, and the appellant now appeals to the Federal Court. The central legal issue was whether the IAA had erred in not considering the expert report due to a failure to identify exceptional circumstances as required by s 473DD of the relevant Act.

The Federal Court considered the appellant's arguments that the IAA's conclusion was irrational, that the IAA failed to consider whether part of the report could be considered, and that the IAA did not properly consider the requirements of s 473DD(b). The Court found that the appellant's arguments did not adequately address why the IAA's reasoning was flawed, and that the IAA had, in fact, considered different aspects of the report and applied different reasoning to each part. The Court also found that the IAA did not take a narrow view of "exceptional circumstances" and that its reasoning was within the scope permitted by s 473DD.

The Court concluded that the IAA's decision not to consider the expert report was legally sound. The report contained unsubstantiated assertions and much of the information it contained was already before the IAA, either from other sources or from a previous report by the same author. The IAA was not satisfied that the circumstances were exceptional enough to warrant considering the new information. The Court found no legal error in the IAA's consideration of whether exceptional circumstances existed to justify considering the new information.

The appeal was dismissed, and the appellant was ordered to pay the respondent's costs, as agreed or assessed.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant pay the first respondent’s costs, as agreed or assessed.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

At [14], the IAA said as follows:The report contains a number of unsubstantiated assertions, including about the likely consequences for the [appellant]. I note that there is other information already before me about many of the matters addressed in the report, including attacks perpetrated by Sunni extremist groups on Shias, other religious minorities and others in Pakistan; the Pakistani Government’s approach to terrorism, the activities of Sunni extremist groups, sectarian violence in Pakistan, the security situation in Pakistan, and the repatriation of IDPs to Kurram Agency. Having regard to the range of other information that is before me, including the new information I have obtained and the previous extensive report the author provided to the delegate; and the limited evident relevance of much of the information to the [appellant’s] individual claims for protection, I am not satisfied that exceptional circumstances exist to justify considering the new information.The decision of the primary judge The relevant paragraphs of the reasons for judgment of the primary judge were as follows, at [25]-[31]:Much has been written about this provision. It suffices to note the following propositions that have now been established:a)the requirements of ss.473DD(a) and (b) must both be met before the Authority is able to consider the new information;b)what will amount to “exceptional circumstances” is inherently incapable of exhaustive statement;c)the matters referred to in sub-ss.473DD(b)(i) and (ii) may be, but are not necessarily, relevant to the consideration of whether there are “exceptional circumstances;d)it is an error to take too narrow a view of what will amount to “exceptional circumstances” but each case turns on its own facts.See Plaintiff M174/2016 v Minister for Immigration & Border Protection (2018) 92 ALJR 481; DLB17 v Minister for Home Affairs [2018] FCAFC 230; AQU17 v Minister for Immigration & Border Protection [2018] FCAFC 111; Minister for Immigration & Border Protection v BBS16 (2017) 257 FCR 111. As I have observed, the applicant sent the Authority a supplementary report by an expert, Mr Hussain. That report was not before the delegate when he made his decision and was treated by the Authority as containing “new information”. It was not satisfied that there existed exceptional circumstances to justify considering that new information and so did not consider it for the purposes of making its decision on review. It explained the reason for that conclusion in the following passages of its reasons:…The applicant contends that the Authority erred in this consideration. Taken at face value, the ground in the amended application is misguided. The Authority did not refuse to do anything. Rather, in accordance with the dictates of s.473DC of the Act, it did not consider certain of the information in the report because it was not satisfied that the requirements of s.473DD were met. The applicant’s submissions more accurately address this fact. There, the applicant argued that the Authority erred in three ways:a) its conclusion was irrational or illogical;b)the Authority failed to consider the option of considering part of the report (involving up to date country information on the security situation and attacks on Shias), while not considering the balance of the report; andc) it failed to consider the matters in s.473DD(b).The first of these was no more than an assertion. The applicant did not explain at all why the reasoning process set out at [11] to [14] of the Authority’s statement of reasons was either irrational or illogical. He did not explain why, in the face of the breadth and nature of the inquiry into whether there are exceptional circumstances, the Authority’s conclusion was not open for the reasons given by it. In those circumstances, this argument rises no higher than an expression of disagreement with the Authority’s conclusion and so is rejected.The second argument, too, must be rejected. The Authority did have regard to different aspects of the report and applied different reasoning to each aspect. It noted, at [11], that some parts of the report were before the delegate. It identified the different topics addressed in the report: [12]. It noted the general, but not universal, failure of the author to articulate a connection between the information in the report and the applicant’s claims: [13]. It noted that a number of the assertions by the author were unsubstantiated: [14]. Finally, it noted that there were parts of the report that, while relevant, were the subject of a range of other information before the Authority: [13] and [14]. In light of this, I am not satisfied that the Authority did fail to consider whether it could consider parts of the report and reject others.The third argument must also be rejected. First, the Authority was not required to consider the application of s.473DD(b) because both parts of s.473DD must be met before the Authority can consider new information and the Authority found that s.473DD(a) was not met. Secondly, the Authority did not take an overly narrow view of the meaning of “exceptional circumstances”. Its reasoning shows that it addressed the cogency of the report (by reference in part to the lack of reasoning in it and the lack of apparent relevance of some of the material in it) as well as the fact that some of the information in it was also dealt with in other material available to the Authority. This was not a case where, as in BVZ16 v Minister for Immigration & Border Protection (2017) 254 FCR 221, the Authority considered only whether the information was available prior to the delegate’s decision and proceeded on the basis that that was determinative of whether there were exceptional circumstances.Ground 3 is rejected. The submissions of the parties

Ratio Decidendi

Legal Principle Established

The Minister submitted that the primary judge did not make any appellable error.Consideration As I have noted, the reasoning of the IAA was that the report contained a number of unsubstantiated assertions, including about the likely consequences for the appellant. The IAA noted that there was other information already before it about many of the matters addressed in the report, including: attacks perpetrated by Sunni extremist groups on Shias, other religious minorities and others in Pakistan; the Pakistani Government’s approach to terrorism; the activities of Sunni extremist groups; sectarian violence in Pakistan; the security situation in Pakistan; and the repatriation of internally displaced people to Kurram Agency. The IAA had regard to the range of other information that was before it, including: the new information it had obtained and the previous extensive report the same author provided to the delegate; and the limited evident relevance of much of the information to the appellant’s individual claims for protection. In those circumstances, the IAA was not satisfied that exceptional circumstances existed to justify considering the new information, as required by s 473DD(a). As the plurality said in Plaintiff M174/2016, at [31]: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). It is enough to exclude “new information” if, as here, the IAA is not satisfied as to s 473DD(a). It does not appear that the appellant or his advisers put to the IAA any material showing or suggesting that there were exceptional circumstances to justify the IAA considering the new material in the report in question. I note that the IAA by its email of 19 May 2017 asked that issue to be addressed about that the submissions sent thereafter, dated 9 August 2017, did not do so. Thus, the IAA’s reasons for it not being satisfied that there were exceptional circumstances to justify considering new information were not reasons given in response to material put to it to meet that precondition, and could not be said to be an error going to jurisdiction on that basis. In my opinion, the IAA did not take too narrow a view as to what might constitute exceptional circumstances. The IAA’s consideration and reasoning was within the field of choice given to it by s 473DD. It identified what was new in the report of May 2017, examined its contents, and decided that there were not exceptional circumstances to justify considering it. This was in contrast to the new information that the IAA did take into account, as explained at [3] of its reasons. The IAA evaluated the circumstances and was not satisfied those circumstances were exceptional. I see no legal error in the IAA’s consideration of whether it was satisfied that there were exceptional circumstances to justify considering the new information.