FHM18 v Minister for Immigration and Anor
[2020] FCCA 3253
•3 December 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FHM18 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 3253 |
| Catchwords: MIGRATION – Immigration Assessment Authority – Safe Haven Enterprise Visa (SHEV) – whether the Authority fell into jurisdictional error by failing to consider the applicant’s health when considering the possibility of the applicants return or internal relocation – whether the Authority fell into jurisdictional error by failing to perform its statutory task – whether the Authority fell into jurisdictional error by misconstruing or misapplying the phrase “exceptional circumstances” in s 473DD(a) of the Migration Act 1958 (Cth) – whether the Authority fell into jurisdictional error in that its decision lacked evident and intelligible justification and was legally unreasonable – whether the Authority fell into jurisdictional error in that it did not perform the procedural duty imposed on it by s 473DD of the Migration Act 1958 (Cth) in its conduct of the review – jurisdictional error is made out – the application is upheld. |
| Legislation: Migration Act 1958 (Cth), ss.414, 473, 493, |
| Cases cited: AUS17 v Minister for Immigration and Border Protection [2020] HCA 37 DWN027 v The Republic of Naru (2018) 355 ALR 238 Franco-Buitrago v Minister for Immigration and Multicultural Affairs [2000] FCA 1525 Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 Minister for Immigration and Border Protection v MZYTS (2013) FCR 431 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 NABE v Minister for Immigration and Indigenous Affairs (No 2) (2004) 144 FCR 1 NNN v Minister for Immigration and Multicultural Affairs [1999] FCA 1290 Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 353 ALR 600 SZAVT v Minister for Immigration and Citizenship (2007) 233 CLR 18 |
| Applicant: | FHM18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | CAG 77 of 2019 |
| Judgment of: | Judge Humphreys |
| Hearing date: | 5 November 2020 |
| Date of Last Submission: | 5 November 2020 |
| Delivered at: | Parramatta |
| Delivered on: | 3 December 2020 |
REPRESENTATION
| Solicitors for the Applicant: | Mr Kikkert – Kikkert Law |
| Counsel for the Respondents: | Mr Johnson |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is upheld.
An order that the decision of the Immigration Assessment Authority be quashed.
A writ of mandamus directed to the Immigration Assessment Authority requiring it to determine the applicant’s application according to law.
The first respondent to pay the applicant’s legal costs fixed in the amount of $7467.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
CAG 77 of 2019
| FHM18 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant claims to be a national of Afghanistan. On 22 November 2016 the applicant lodged an application for a Safe Haven Enterprise Visa (“SHEV”). On 12 June 2018, a delegate of the Minister for Immigration (“the delegate”) refused to grant the visa. The matter was referred to the Immigration Assessment Authority (“the Authority”) for merits review. On 11 September 2018, the Authority affirmed the delegate’s decision not to grant the applicant a protection visa. On 28 June 2019, this Court remitted the matter back to the Authority for reconsideration.
On 24 October 2019 the Authority determined to, again, not grant the applicant a SHEV. The applicant now seeks judicial review of the Authority’s second decision.
The Immigration Assessment Authority’s Decision
The Authority’s decision runs to some 15 pages of extensive discussion of the applicant’s claims and relevant country information. It is not necessary for the Court to summarise the entirety of the Authority’s decision, as the crux of the applicant’s claims of jurisdictional error revolve around the aspects of the decision outlined in paragraphs 4, 5, 6 and 7 not to consider 3 items of new information provided to the Authority post the delegates decision. It is appropriate to set out those paragraphs in full:
4. Additionally some new information has been provided in the form of a statement from the applicant's brother, Mr KHN, in support of his applicant's claims about when the applicant was in the Pakistan city of Quetta to meet Mr KHN. Also provided is documentary evidence of Mr KHN's 2012 travel to Pakistan. Although MR KHN's statement post-dates the delegate's decision it is otherwise not apparent why such a statement, and the associated documentary evidence of Mr KHN's 2012 travel to Pakistan, could not have provided to the delegate before the delegate made his decision. The documentary evidence of Mr KHN's 2012 travel to Pakistan substantiates Mr KHN's presence in Pakistan during 2012 and that he went there for a "Family visit" but it does not specifically establish that the applicant was in Pakistan at this time. Mr KHN's statement does assert that this was the case but the willingness of the applicant's own brother to make such an assertion does not make for exceptional circumstances. In such circumstances I am not satisfied that there are exceptional circumstances to justify considering this new information.
5. New information is also provided in the form of what is said to be a statement of support from Dr KH regarding the applicant's current health and mental issues. The document is dated 3 July 2018 and it would seem that Dr KH is a general practitioner. His letter is addressed to the Department and it certifies that the applicant has been in Dr KH's care since May 2016 and it is stated that the applicant suffers from depression, anxiety, stress disorder, insomnia and low mood, and that worrying about his future has caused his depression to deteriorate and that it would be appreciated if the applicant's medical condition would be considered. Again, although this statement post-dates the delegate's decision it is otherwise not apparent why such a statement could not have been provided to the delegate before he made his decision. It is not apparent that the applicant's mental health situation has been sufficiently serious as to warrant any specific treatment such as from a mental health specialist or by way of medication. It is not suggested that any of this has affected the applicant's capacity to live his life other than in its affect upon his mood, his level of stress and his sleep. It is not reported that such matters have affected the applicant's capacity to give evidence or to earn a livelihood or to ensure his own security. In such circumstances I am not satisfied that there are exceptional circumstances to justify considering this new information.
6. New information is also provided in the form of a country information report about the situation in Afghanistan for Hazaras written by an academic advocating that Afghan Hazaras should be given asylum in Australia. This report only became available on 8 October 2019 and so I am satisfied that s.473DD(b)(i) is met. It also provides comment on certain recent developments with regard to the security situation in Jaghori District and so I am satisfied that there are exceptional circumstances to justify considering this new information. Given these recent developments I have also obtained new information about the situation in Afghanistan for persons like the applicant sourced from the three most recent versions of certain reports which featured in the delegate's decision (these being the latest UNAMA annual report and the latest DFAT and EASO reports for Afghanistan).Given that the applicant has already had the opportunity to provide such new country information as he might wish in support of his application I have not invited the applicant to provide any further information in this regard. Grounds of Judicial Review.
7. The IAA previously obtained new country information from various outlets which was published during 2018 but given that I now have access to more recently published country information I am not satisfied that there are exceptional circumstances to justify considering the 2018 published new information.
The grounds of judicial review are set out in an initiating application filed with the Court on 19 November 2019. They are as follows (less particulars):
Ground One:
The Immigration Assessment Authority (IAA) fell into jurisdictional error by failing to consider the applicant’s health when considering the possibility of the applicant’s return to Jaghori or his internal relocation.
Ground 2
The Authority fell into jurisdictional error by failing to perform its statutory task.
Ground Three
The IAA fell into jurisdictional error by misconstruing or misapplying the phrase “exceptional circumstances” in s 473DD(a) of the Migration Act 1958 (Cth).
Ground Four
The IAA fell into jurisdictional error in that its decision lacked evident and intelligible justification and was legally unreasonable.
Given the manner in which the matter developed, leave was granted for the applicant to add a further ground of review that specifically raised the issue canvased by the decision of the High Court, in AUS17 v Minister for Immigration and Border Protection [2020] HCA 37 (“AUS17”) as it related to this matter.
That Ground is as follows:
Ground Five
The IAA fell into jurisdictional error in that that it did not perform the procedural duty imposed on it by s 473DD of the Migration Act 1958 (Cth) in its conduct of the review in accordance AUS17 v Minister for Immigration and Border Protection [2020] HCA 37 .
The Applicant’s Submissions
In written submissions filed with the Court, in relation to ground one, the legal representative for the applicant submitted that failing to consider the applicants health when considering the possibility of internal relocation, could constitute jurisdictional error. In SZAVT v Minister for Immigration and Citizenship (2007) 233 CLR 18 at [24] per Gummow, Hayne and Crennan stated that what is “reasonable”, in the sense of “practicable”, in regards to relocation must depend upon the particular circumstances of the applicant and the impact upon that person, of relocating within the country. Accordingly, an applicant’s own particular circumstances must be carefully considered when considering relocation, including the applicant’s health vulnerabilities.
The Federal Court has also found that an applicant’s health was a relevant consideration when considering relocation in the following cases: NNN v Minister for Immigration and Multicultural Affairs [1999] FCA 1290 per Madgwick J and Franco-Buitrago v Minister for Immigration and Multicultural Affairs [2000] FCA 1525 per Tamberlin J involving the applicant’s son’s ill-health, and the availability of medical facilities. It was submitted that it was not open to the Authority to not consider the applicant’s medical certificate/statement of support. By not considering the applicant’s health when considering the possibility of internal relocation, the Authority made a jurisdictional error.
In relation to ground two, it was submitted that the Authority has discretion to access and determine what new information should be considered. However, to sufficiently undertake the statutory task of review (s 414 of the Migration Act 1958 (Cth) (“the Act”)) all relevant information must be considered. By failing to take into account evidence of the applicant’s current health and mental issues the Authority failed to undertake its statutory task of review or reach the requisite state of satisfaction.
This matter is comparable to Minister for Immigration and Border Protection v MZYTS (2013) FCR 431 (“MZYTS”), where a failure to consider the most recent country information and a claim about increased risk of persecution if the applicant returned to Zimbabwe constituted a failure to form the “state of satisfaction” required to reach a decision pursuant to s 36(2)(a) of the Act.
In this matter, like MZYTS, the applicant wished the Authority to consider information to “consolidate his claim and contradict information raised by the Tribunal at the hearing”.
In relation to ground three, it is conceded that this is related to the first and second ground. It was submitted that the Authority fell into jurisdictional error by misconstruing or misapplying the phrase “exceptional circumstances” in s 473DD(a) of the Act. It was submitted that the Authority adopted an inappropriately narrow view of understanding of the term. Although the Act does not define “exceptional circumstances”, the explanatory memorandum indicates the intention of a broad discretion (Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment, 915).
The Authority’s refusal to consider the applicant’s medical certificate, demonstrates an inappropriate and narrow understanding of the scope of the term “exceptional circumstances” in a situation where the Authority was required to consider the applicant’s health when considering the possibility of internal relocation. It was submitted that it was difficult to see how “exceptional circumstances” did not exist in circumstances where a decision-maker must consider all the applicant’s personal circumstances, including the applicant’s health when considering the possibility of internal relocation. It was submitted that ground two and three are interrelated in that the Authority did not undertake its statutory task in relation to the applicant, and additionally, alternatively failed to exercise its discretion as prescribed by the High Court in Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 353 ALR 600.
In relation to the fourth ground, it was submitted that the Authority committed jurisdictional error and that the decision lacked evident and intelligible justification and, as such, was legally unreasonable: see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332. It was submitted that it was legally unreasonable for the Authority to refuse to consider the applicant’s medical certificate. This was in circumstances where the Authority was legally required to consider the applicant’s health when considering his return to Jaghori and to find that it was “not satisfied there are exceptional circumstances to justify considering this new information”.
In supplemental submissions filed by the applicant at the request of the Court, it was submitted on behalf of the applicant that the Authority’s decision contains jurisdictional error when considered in the light of the recent High Court decision of AUS17. It was submitted that at paragraphs 4, 5 and 6 of its decision, the Authority fails to follow the now mandated path of considering the provisions of both s 473DD(b)(i) and (ii) of the Act, before determining whether or not there are exceptional circumstances such as to justify the receipt of the new information provided to it pursuant to s 473DD(a) of the Act.
In relation to paragraph 4 of the Authority’s decision, it was submitted that there was no reference or finding by the Authority in relation to
s 473DD(b)(i) or (ii) of the Act. There was no use of the term ‘personal credible information’, rather, the Authority went directly to the issue of whether there were exceptional circumstances.
In relation to paragraph 5 of the Authority’s decision, it was submitted that the Tribunal assessed the matter on the basis of whether there were exceptional circumstances before and without assessing either of the criteria under s 473DD(b)(i) or (ii) of the Act. The applicant refutes the first respondent’s suggestion that there was no need to find that the latter was ‘personal credible information’ as the Doctor’s letter clearly was. There are many circumstances where a letter from a Doctor may not fit that description.
Finally, in regards to paragraphs 6 and 7 of the Authority’s decision, the applicant submits that it can never be the case that ‘country information’ could never be regarded as ‘credible personal information’ and thus need not be considered against the criterion of s 473DD(b)(ii) of the Act, and the Authority still needed to make a determination in that regard.
The First Respondent’s Submissions
It is not contested by the first respondent that the letter from a Dr K Hamid (“the Dr KH letter”) constitutes new information for the purposes of s 473DD of the Act. Accordingly, the Authority was required to consider the letter having regard to the provisions of s 473DD of the Act. The Authority found that there were no exceptional circumstances as required under s 473DD(a) of the Act to justify considering this new information and accordingly, rejected it.
In relation to ground one, the applicant argues that the Authority fell into jurisdictional error because it failed to consider the applicant’s health. In all of the material that was before the Authority, there is nothing that mentions the applicant’s health apart from the Dr KH letter. It is submitted that the Authority was not prevented from considering the Dr KH letter by reason of s 473DD of the Act.
It is submitted that the difficulty with the applicant’s submission is that, save for any error by the Authority in its consideration of s 473DD of the Act, there was no other material as to the applicant’s health that the Authority could consider, let alone was obliged to consider: see DWN027 v The Republic of Naru (2018) 355 ALR 238 at [7], and NABE v Minister for Immigration and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [58]-[60].
In relation to ground two, it was submitted that this ground represents little more than a rephrasing of ground one and suffers from the same fatal defects. It is argued that the Authority was required by statute to take into account all relevant information and that, because the Authority did not take account all of the information contained within the Dr KH letter, it failed to perform its statutory task. Again, this submission is founded upon the incorrect assumption that the Dr KH letter was properly before the Authority.
The applicant’s reliance upon MZYTS is also misconceived. In that case, the Full Court found that the then Refugee Review Tribunal failed to perform its statutory task because it failed to have regard to country information that was put before it. As the Full Court in that case explained:
[32] The Tribunal’s task on review under s 414 of the Migration Act is to form, for itself and on the material before it, the requisite state of satisfaction under s 65 of the Migration Act in respect of the criterion (or criteria) for a visa in issue before it. Relevantly, and almost uniformly for the Tribunal (putting complementary protection to one side), the criterion is the one set out in s 36(2)(a) of the Migration Act, which picks up Art 1 of the Refugees Convention.
In this case, having excluded the Dr KH letter, the Authority was not permitted to have regard to it. Ground two is predicated upon the assumption that the Dr KH letter was before the Authority, which it was not.
In relation to ground three, the applicant contends that, in deciding to exclude the Dr KH letter pursuant to s 473DD of the Act, the Authority adopted an inappropriately narrow reading of the term “exceptional circumstances”. The thrust of this argument is that the Authority’s discretion in respect of whether or not there were “exceptional circumstances” miscarried, in circumstances where the Authority must “consider all the applicant’s personal circumstances, including the applicant’s health when considering the possibility of internal relocation”.
It is submitted that the Authority’s jurisdiction to consider an issue will only arise if there is some issue in submission before it, to enliven it. The applicant’s argument assumes its conclusion at its premise. It assumes that the Dr KH letter was before the Authority as a way of explaining why the letter should have been considered.
In relation to ground four, it is submitted on behalf of the applicant that it was legally unreasonable not to consider the Dr KH letter. Very little is offered by way of an explanation in relation to the argument, however, it appears to be predicated upon the unsupported assertion that the Authority was obliged to take into account the applicant’s health. However this obligation could only have arisen if the Dr KH letter was already before the Authority. Again, it’s not clear why it is said that the Tribunal’s reasoning, as to whether it was permitted to consider the new information pursuant to s 473DD of the Act was legally unreasonable. In essence, ground four is little more than a rewording of ground three and suffers from the same circularity. No jurisdictional error arises
In relation to ground five, the first respondent submits, in supplemental submissions, that the approach by the Authority either conformed to the requirements of AUS17 or even if it did not, (which is not admitted) the error was not such that it was material and would have made a difference to the outcome or the error was not jurisdictional in nature.
It was submitted that a reading of AUS17 does not require a formulaic consideration of the provisions of s 473DD(b) of the Act, if it can be inferred from the assessment carried out by the Authority that the requisite consideration has occurred, that is the substance of the criteria proscribed by s 473DD(b)(i) and (ii) of the Act, had been considered prior to a consideration of the criteria in s 473DD(a) of the Act.
In relation to the letter from Dr KH, the Authority stated that it was not apparent how the applicant’s mental health situation, which was not so serious as to require specific mental health treatment, affected his capacity to live his life other than the effect upon his mood. It was submitted that this amounted to a consideration of the criteria under
s 473DD(b)(ii) of the Act. It was submitted that this consideration was not and could not be restricted to a consideration of ‘exceptional circumstances’ under s 473DD(a) of the Act. It is suggested that the letter was clearly credible personal information although it was not referred to as such.
In the alternative it was submitted that the information, even if it had been admitted, was not ‘material’ as defined in Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at [135].
In relation to the KHN letter, it is submitted that the appropriate inference to be drawn, is that the information if known would not have affected the consideration of the applicant’s claims. It is submitted that the appropriate inference is that the Authority had regard to the factors in s 473DD(b)(i) and (ii) of the Act and that it factored this into its consideration of exceptional circumstances. Further, the letter was not material to the outcome even if it had been admitted.
In relation to the country information, this was not information that was given by the applicant to the Authority and thus did not enliven the requirements of s 473DD(b) of the Act. AUS17 has no applicability in this circumstance.
Consideration.
Part 7AA (of the Act) reviews are considerably constrained by the relevant legislative provisions. Section 473DB(1) of the Act provides as follows:
(1) Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB:
(a) without accepting or requesting new information; and
(b) without interviewing the referred applicant.
Section 473DD of the Act is in the following terms:
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.
Section 473DD of the Act was recently considered by the High Court in AUS17 where the following was said:
[11]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.
[12] 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) (footnotes omitted).
The Court then went on in AUS17 at [17] to set out the reasons of the reviewer to exclude the new information and then consider the issue at [18]. The judgements reads as follows:
…I accept the letter of support from Appathuray Vinayagamoorthy could not have been provided to the delegate as it was written after the delegate‘s decision. However, the information it provides recounts the claims already provided by the applicant and in that regard there is no reason to believe that the applicant could not have obtained a letter outlining this information earlier and provided it to the Minister. I am not satisfied that any exceptional circumstances exist that justify considering the new information.
[18] Plainly enough, the Authority assessed the letter against the criterion specified in s 473DD(b)(i), finding that criterion not to be met. It went on to assess the letter against the criterion specified in s 473DD(a), finding that criterion not to be met. There being nothing to suggest that the letter was incapable of being assessed by the Authority to meet the criterion specified in s 473DD(b)(ii), what the Authority should have done, but evidently did not do, was assess the letter against the criterion specified in s 473DD(b)(ii) and then take that assessment into account in going on to assess the letter against the criterion specified in s 473DD(a).
What flows from the above is that there is a requirement for the Authority to firstly assess new information against the criterion set out in s 473DD(b)(i) and (ii) of the Act. Only then should an assessment be made against the criterion in s 473DD(a) of the Act. A failure to follow this assessment process will amount to jurisdictional error.
It appears that there is no absolute requirement for the specific mention as to whether or not the criterion in s 473DD(b)(i) and (ii) of the Act have been considered and are met, if that can be plainly ascertained or inferred from the reasons of the Authority. Having said that, clearly the safest course for the Authority in reviewing such information would be to make a specific finding as to whether or not the criteria in s 473DD(b) (i) and (ii) of the Act are met prior to considering whether the criteria in s 473DD(a) of the Act are met.
In relation to the new information in the form of a statement from the applicant’s brother, Mr KHN, at paragraph 4 of the Authority’s reasons, there is clear reference to the provisions of s 473DD(i) of the Act in that the Authority notes “it is otherwise not apparent why such a statement… could not have been provided to the delegate before the delegate made his decision.”. The Authority then goes on to deal with the issue of exceptional circumstances, which it finds do not exist. The Court is not satisfied that an assessment however appears to have been made, as to whether or not the new information met the criteria in s 473DD(b)(ii) of the Act. There is no mention of the term ‘credible personal information’. There is nothing else to allow the Court to infer that the Authority turned its mind to the terms of s 473DD(b)(ii) of the Act.
Whilst it may in some cases be clear that the material is not personal credible information, such as country information, as noted by Edelman J in AUS 17 at [24], there is nothing to suggest that the statement referred to in paragraph 4 of the Authority’s decision was incapable of being assessed against the criterion in s 473DD(b)(ii) of the Act. Only if the information was clearly incapable of being so assessed would it be possible for the Authority not to then consider s 473DD(b)(ii) after (i) of the Act. Again, caution would dictate in such circumstances that a specific finding be made on this issue by the Authority. Accordingly, the Court is satisfied that the Authority fell into jurisdictional error in the manner outlined in AUS17.
It was next put by the first respondent to the Court that even if the Authority at paragraph 4 of its decision had failed to follow the requirements set out in AUS17, the Authority did not make any adverse finding in relation to the applicant on this issue of his purported visit to Pakistan. No finding was made at all. This was not the case in the delegate’s decision. It was submitted that the error (which was not admitted) was thus not material to the outcome and so should not result in the application succeeding. Whilst it might be attractive to deal with materiality on an individual issue basis, it is best left to be dealt with after an assessment of the reasons for excluding new material at [5], [6] and [7].
In relation to Dr KH’s letter, there is reference to the fact at paragraph 5 of the Authority’s decision that the letter post-dates the delegate’s decision but it is not apparent why it could not have been provided to the delegate before the delegate’s decision was made. Having made this determination, the Authority went on to find that it was not satisfied that there were exceptional circumstances to justify considering this new information.
Whilst it could be argued that there was an oblique reference to the requirements of s 473DD(b)(i) of the Act, the Court is not satisfied that there was any clear engagement of the criterion specified in
s 473DD(b)(ii) of the Act. There is no reference to the fact that it was credible personal information. There is some discussion about what the impact of the evidence is as to the applicant’s capacity to give evidence, earn a livelihood or ensure his own security. These statements however do not constitute a clear engagement with the provisions of
s 473DD(b)(ii) of the Act.
Given the clear direction from the High Court in AUS17 set out above, the Court is satisfied that the failure to refer to the requirements of
s 473DD(b)(ii) of the Act by the Authority constitutes jurisdictional error on the basis that the Authority has not performed its procedural duty and has failed to take account of a mandatory relevant consideration in the purported application of the criterion in s 473DD(a) of the Act.
In relation to the new country information at paragraph 6 of the Authority’s decision, there is a clear and unequivocal reference to the fact that the criteria of s 473DD(i) of the Act are met. Given that, as well as the fact that the material was also incapable of being assessed against the criteria of s 473DD(ii) of the Act, the Court is not satisfied that a failure to refer to s 473DD(ii) of the Act constitutes jurisdictional error. Again, caution would now dictate that the preferable course is for a statement that the provisions of s 473DD(ii) of the Act are not met before considering if there are exceptional circumstances.
At paragraph 7 of its decision, the Authority states that it had ‘previously obtained new country information from various outlets which was published during 2018, but given that I now have access to more recently published country information I am not satisfied that there are now exceptional circumstances to justify considering the 2018 published new information’. There is no clear engagement with the provisions of
s 473DD(b)(i) or (ii) of the Act. Clearly this information was incapable of being assessed against s 473DD(b)(ii) of the Act. Thus it was not necessary to engage with s 473DD(b)(ii) of the Act. The Court rejects the applicant’s submission that new country information could be ‘credible personal information’. By its very nature, country information is broad and general in nature and not specific to an individual. Further, there was no need to engage with s 473DD(b) of the Act as the information was not provided by the applicant.
When considering the issue of materiality, the Court notes that that issue does not appear to have been raised directly in AUS17. The parties were not in dispute as to the materiality of the material. The material outlined in [15] in AUS17 recounted claims already provided by the applicant. Notwithstanding this, the High Court found jurisdictional error on the basis of a non-performance of a procedural duty.
The Court is not satisfied, that the receipt of the material subject to challenge in this matter may not have made a difference had it been considered by the Authority. It involves issues that go to the credit of the applicant’s overall claims.
In these circumstances it is not necessary for the Court to consider the other grounds raised by the applicant, nor have they been pressed, given the way the matter developed in argument.
Conclusion
Accordingly, the application is upheld and the Court grants the relief sought in the initiating application filed with the Court.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Humphreys
Associate:
Date: 3 December 2020
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