Fim18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 623
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FIM18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 623
File number(s): PEG 159 of 2020 Judgment of: CHIEF JUDGE ALSTERGREN Date of judgment: 11 August 2022 Catchwords: MIGRATION – Protection Visa – decision of the Immigration Assessment Authority (“Authority”) – review by Authority under Pt 7AA of Migration Act 1958 (Cth) – where Authority obtained “new information” – where Authority assessed new information against the criteria in s 473DD(a) but not s 473DD(b) – whether the Authority is able to consider new information not provided by a referred applicant – whether the Authority is required to consider s 473DD(b) where new information is not given by a referred applicant – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 46A, 473DC, 473DD
Explanatory Memorandum to Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth)
Cases cited: AUS17 v Minister for Immigration and Border Protection [2020] HCA 37 Division: Division 2 General Federal Law Number of paragraphs: 42 Date of last submission/s: 13 May 2022 Date of hearing: 2 May 2022 Place: Perth Counsel for the Applicant: Mr McIntyre SC Solicitor for the Applicant: Rebus Legal Counsel for the First Respondent: Mr Johnson Solicitor for the First Respondent: Sparke Helmore The Second Respondent: Submitting appearance save as to costs ORDERS
PEG 159 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FIM18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIPAND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
CHIEF JUDGE ALSTERGREN
DATE OF ORDER:
11 AUGUST 2022
THE COURT ORDERS THAT:
1.The name of the first respondent be changed to the “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The applicant’s application filed on 4 June 2020 be dismissed.
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
CHIEF JUDGE ALSTERGREN:
INTRODUCTION
On 4 June 2020, the applicant filed an application in this Court seeking judicial review of a decision of the Immigration Assessment Authority (“Authority”) dated 6 May 2020. The Authority affirmed a decision of a delegate of the first respondent (“Minister”) to refuse to grant the applicant a Temporary Protection (subclass 785) visa (“visa”).
The materials before the Court are the judicial review application, a Court Book which I have marked as an Exhibit, an outline of written submission filed on behalf of the applicant on 13 May 2021, an outline of written submissions filed on behalf of the Minister on 27 May 2021 and supplementary submissions filed on behalf of the applicant on 10 May 2022 and on behalf of the Minister on 13 May 2022. I have also considered the helpful oral submissions provided by Mr McIntyre SC as Counsel for the applicant and Mr Johnson as Counsel for the Minister.
For the reasons that follow, I dismiss the application.
Background
The applicant is a citizen of Iran. He arrived in Australia as an unauthorised maritime arrival in December 2012 (Court Book (“CB”) 91). By virtue of his arrival, the applicant was unable to apply for a protection visa until the Minister lifted the bar pursuant to s 46A of the Migration Act 1958 (Cth) (“Act”) on 29 March 2016 (CB 19).
The applicant filed an application for the visa on 28 March 2017 (CB 21-63). In the applicant’s summary of claims provided in support of his application, the applicant stated that he attended a protest against the government in 2009. The Basij and Sepah opened fire on the protesters and people around the applicant were shot. He took them to a hospital. The applicant was arrested, detained and tortured by the Basij who asked him if he worked for the Americans. He remained detained for 33 days and when he was released he was required to check in every month. He did so for one or two years and would often be questioned when he would report in. He was scared he would be taken to jail and told that he would be hanged. Since his departure the Iranian authorities have come looking for him.
The applicant attended an interview before the delegate of the Minister on 23 October 2017 (CB 73). He provided various translated documents and a photograph (CB 75-87).
The delegate refused to grant the applicant the visa on 2 March 2018 (CB 88-103). The delegate was not satisfied that the applicant faced a real chance or a real risk of serious or significant harm.
As the applicant was also found to be a fast track review applicant, the delegate’s decision was referred to the Authority for review (CB 104-105). The referral was dated 7 March 2018.
On 8 April 2018, the applicant’s lawyers provided the Authority with a written submission and further information (CB 107-167). On 12 April 2018, the Authority returned the applicant’s submission and asked that it be revised as it did not meet the Authority’s practice direction (CB 168). The applicant provided a response (including further information) on 19 April 2018 (CB 169-175).
The Authority affirmed the delegate’s decision on 12 September 2018 (CB 179-190). A judge of this Court (on 30 March 2020) quashed the Authority’s decision and remitted the matter for rehearing (CB 19).
On 22 April 2020, the Authority wrote to the applicant and advised him that it was reconsidering his case (CB 194-200).
On 6 May 2020, the Authority again affirmed the delegate’s decision not to grant the applicant the visa (CB 204-220).
Authority’s Decision
The scope of the applicant’s sole ground of review is narrow. It relates only to the Authority’s application of s 473DD of the Act to a particular piece of information – the 2020 Department of Foreign Affairs & Trade (“DFAT”) Report. It is therefore unnecessary that I summarise the Authority’s decision.
Instead, I will focus on the particular paragraph in issue which provides:
20. Finally, I note that the original IAA review of this case obtained a June 2018 report written by the Department of Foreign Affairs and Trade relating to the consideration of Iranian Asylum seeker claims. This document was obtained, because it superseded an earlier, April 2016 document by DFAT which had been cited by the delegate. For the same reasons, I have also obtained the 2018 DFAT report, and a subsequently published April 2020 updated version of the Iranian Asylum seeker report prepared by DFAT. As these documents provide up to date information about the consideration of Iranian Asylum seeker claims I am satisfied that there are exceptional circumstances to justify obtaining these reports. I have considered them.
Judicial Review Application
The application for judicial review was filed on 4 June 2020 and contains a single ground of review as follows:
1.The Immigration Assessment Authority erred in law in considering a 2020 DFAT Report which it identified as new information in relation to which it was satisfied, for the purposes of section 473DD(b), that there were exceptional circumstances to justify considering it, when it proceeded to consider it contrary to the prohibition in section 473DD of the Migration Act against considering new information unless the prerequisite to the exception to the prohibition against considering new information in section 473DD(b) was also satisfied, that is, that the referred applicant satisfied 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 was not, and could not have been, provided to the Minister before the Minister made the decision under section 65.
The sole ground of review is longwinded and could have been pleaded more succinctly. It also refers to the incorrect sub provision (it should say “for the purposes of section 473DD(a), that there were exceptional circumstances to justify considering it”). This typographical error was acknowledged by Mr McIntyre SC during the hearing.
Put simply, the applicant is arguing that the Authority erred as it took into account the DFAT Report without considering whether it met s 473DD(b) of the Act. For the sake of completeness, I note that both parties were in agreement that the DFAT Report was “new information”.
Consideration
To understand the applicant’s argument, it is necessary to refer to the legislation:
473DC Getting new information
(1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:
(a) were not before the Minister when the Minister made the decision under section 65; and
(b) the Authority considers may be relevant.
(2) The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(3) Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a) in writing; or
(b) at an interview, whether conducted in person, by telephone or in any other way.
473DD Considering new information in exceptional circumstances
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.
The applicant argues that, in determining whether it could (and should) consider the DFAT Report, the Authority only considered s 473DD(a) of the Act. It is submitted that the Authority is precluded from considering the information unless both s 473DD(a) and s 473DD(b) are met. The Authority here did not consider s 473DD(b).
I accept that the Authority did not consider s 473DD(b) of the Act at all. It only considered s 473DD(a). However, the circumstances here are that the Authority was not required to consider s 473DD(b) of the Act and was only required to consider s 473DD(a) of the Act.
The reason for this is simple. The applicant did not “give” the information to the Authority. Rather the Authority “got” the information or, as the Authority stated, it “obtained” the new information.
Section 473DD(b) is only required to be satisfied if the new information is given to the Authority by the referred applicant. The onus to satisfy s 473DD(b) is placed on the applicant only in circumstances where it was the applicant who provided the new information. It would be absurd if the applicant was required to satisfy the Authority that the information the Authority had obtained itself met s 473DD(b). It would cast an onus on the applicant which the applicant did not purport to enliven.
I also note the Explanatory Memorandum of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth) wherein it was explained with reference to s 473DD of the Act:
912. Paragraph 473DD(a) provides that for the purposes of making a decision in relation to a fast track reviewable decision, the IAA must not consider any new information unless the Authority is satisfied that there are exceptional circumstances to justify considering the new information.
913. This component of the test would apply to instances where:
•the IAA sought new information at its discretion including where it got new information under new subsection 473DC(1) that it considered relevant; and/or
•a referred applicant provided new information to the IAA of their own volition.
914. Under this component of the test, the IAA would not be able to consider any new information in relation to making a decision fast track reviewable decision unless the Authority was satisfied that there are exceptional circumstances to justify considering the new information. Exceptional circumstances has not been defined and will provide a reviewer of the IAA with discretion to ascertain what he or she thinks are exceptional dependent on the characteristics of each fast track reviewable decision. It will be a matter for the IAA to develop guidelines to assist in the interpretation of this phrase, which has been deliberately left undefined as circumstances will differ from case to case.
…
917. Paragraph 473DD(b) provides that for the purposes of making a decision in relation to a fast track reviewable decision, the IAA must not consider any new information unless, in addition to paragraph 473DD(a), 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 was not, and could not have been, provided to the Minister before the Minister made the decision under section 65.
918. Where an applicant provides or seeks to provide the IAA with new information of their own volition, they would also have to satisfy the component of the test outlined in paragraph 473DD(b) in addition to the component in paragraph 473DD(a).
919. The purpose of imposing an additional component where a referred applicant gives or seeks to give new information to the IAA is to reinforce the policy position that fast track applicants must be forthcoming with all of their claims and provide all available information to the Minister before a fast track decision is made under section 65 of the Migration Act.
Plainly, s 473DD(b) was only intended to be necessary where the applicant provides the new information. Not when the Authority obtains the new information itself.
The majority of the High Court in AUS17 v Minister for Immigration and Border Protection [2020] HCA 37 (“AUS17”) can be seen to have endorsed this in the following passages:
7. The criteria that must be met if the Authority is to take new information that it has got into account in making its decision on the review vary according to the provenance of the new information that has been obtained by the Authority. All new information is required to meet the criterion specified in s 473DD(a) that the Authority is satisfied of the existence of "exceptional circumstances" justifying its consideration of that new information.
8. New information obtained from the referred applicant is required to meet at least one of the additional criteria specified in s 473DD(b). The additional criterion specified in s 473DD(b)(i) is met if the referred applicant satisfies the Authority that the new information meets the bipartite description of information that was not before the Minister at the time of making the referred decision and that could not have been before the Minister at the time of making the referred decision. The additional criterion specified in s 473DD(b)(ii) is met if the referred applicant satisfies the Authority that the new information meets the tripartite description of "credible personal information", that was not previously known, and that may have affected consideration of the referred applicant's claims to be a person in respect of whom Australia has protection obligations if it had been previously known.
9. Section 473DD(b)(ii) was inserted during the parliamentary process which resulted in the enactment of Pt 7AA for the express purpose of expanding the circumstances in which new information obtained from a referred applicant might be considered by the Authority beyond those which would have prevailed had s 473DD(a) been left to operate only in combination with s 473DD(b)(i). Section 473DD(b)(ii) to that extent modifies the policy manifest in s 5AAA, s 473DB and s 473DD(b)(i) of casting responsibility on the applicant for a protection visa to provide evidence to establish his or her claims to be a person in respect of whom Australia has protection obligations at the time of making the application. Section 473DD(b)(ii) allows for a very limited second opportunity to provide evidence that might previously have been provided.
As noted at [7] in AUS17, the criteria to be met is dependent upon how the Authority obtained the new information. In all circumstances, s 473DD(a) must be met. However, if the “provenance” of the information is the referred applicant, only then is the “additional criteria” in s 473DD(b) required to be met.
Justice Edelman in AUS17 added:
24. My only departure from the joint reasons is that I do not consider that such a reasoning procedure is demanded by the logic of s 473DD. In my view, an alternative approach that is equally open to the Authority as a matter of law is to consider s 473DD(a) first. If the "exceptional circumstances" criterion were not met, then there would not be a further requirement for the Authority to consider either limb of s 473DD(b) individually. This alternative approach by the Authority would align with the same manner of consideration of s 473DD(a) by the Authority where the new information is not given or proposed to be given to the Authority by the referred applicant, such as where new information is given by the Secretary. In the scenario where new information is given by the Secretary, the Authority would never turn to consider s 473DD(b) independently, although the issues raised by the two limbs of s 473DD(b) might often be considered as material circumstances in the assessment of whether there are "exceptional circumstances". This alternative approach also recognises that there will be some cases where the criteria in s 473DD(b) might not be relevant to s 473DD(a). One of those cases might be where new country information is provided to the Authority either by the Secretary or by the referred applicant. In considering whether exceptional circumstances exist, the Authority is not required to ask itself whether the country information is "credible personal information" within s 473DD(b)(ii). Plainly, country information is not personal information, which in broad terms is "information or an opinion about an identified individual, or an individual who is reasonably identifiable"
It is clear therefore that, where the information has not been provided by the applicant, the Authority will never turn to consider s 473DD(b) of the Act itself (because it is not necessary to do so).
Accordingly, there is no obligation on the Authority to consider s 473DD(b) of the Act when the new information has not been provided by the applicant nor is the applicant required to satisfy the Authority that the information meets s 473DD(b) of the Act.
I note that His Honour explained that the matters in s 473DD(b) may nevertheless be relevant to s 473DD(a) in circumstances where the Authority has, for example, obtained country information independently of an applicant. Clearly, the Authority here did consider s 473DD(b)(i) as it noted that the DFAT Report had superseded the version considered by the delegate and provided “up-to-date” information. It is implicit in those statements that the DFAT Report could not have been provided to the delegate or obtained by the delegate.
In relation to s 473DD(b)(ii), I refer to His Honour Justice Edelman’s remarks in the final statement of [24] in AUS17. In circumstances where country information is plainly, not "information or an opinion about an identified individual, or an individual who is reasonably identifiable", s 473DD(b)(ii) was not a “material circumstance” that was required to inform the Authority’s assessment of “exceptional circumstances”.
As recognised by Mr Johnson in his oral submissions, the applicant’s case as developed in oral and in supplementary submissions differed from what was advanced in the sole ground of review and in written submissions. A further argument was put by the applicant as follows:
Justice Edelman then continues in his reasons by going beyond what was necessary to the case before that Court relating to new information provided by the Applicant. He raises hypothetical circumstances “where new information is given by the Secretary” or “new country information is provided to the Authority either by the Secretary or by the referred applicant” and suggests they may be circumstances where the Authority may be able to consider new information by only considering whether exceptional circumstances exist and not being “required to ask itself whether the country information is “credible personal information” within s 473DD(b)(ii)”. With respect, Justice Edelman’s obiter dicta discussion of the possibility of s 473DD authorising the consideration of new information from a source other than the referred applicant overlooks the interpretation for which the present Applicant contends, dictated by the use of the conjunctive word “and” between s 473DD(a) and s 473DD(b) and the disjunctive word “or” between s 473DD(b)(i) and s 473DD(b)(ii), that the Fast Track procedure in s 473DD prohibits consideration of new Information other than that “given or proposed to be given … by the referred applicant”.
As I understand, the applicant is alternatively arguing that the Authority cannot have regard to ‘new information’ which has not been provided by the applicant.
I respectfully disagree.
Section 473DC gives the Authority the discretionary ability to get new information (being ‘any documents or information’) that it may consider relevant to a fast track decision. This can be from any ‘person’, not just a referred applicant. As the Explanatory Memorandum states “Under section 473DD, the IAA cannot consider that new information for the purposes of making a decision in relation to a fast track reviewable decision unless the test in section 473DD is met”.
As Mr Johnson submitted, while s 473DC and s 473DD have different work to do (one being a discretionary power and the other a prohibition), they are ‘conjoined’ in the sense that they both derive their purpose or application from the concept of ‘new information’. The definition of new information is found in s 473DC(1), and there is no basis for it to be inferred that this is limited to information provided by a referred applicant only. There is also no basis to consider that the reference to ‘new information’ in s 473DD is to be read as being restricted to information only provided by a referred applicant. Had that been intended, it would have been made clear in the chapeau, as opposed to just in relation to s 473DD(b).
Accordingly, to the extent the applicant contends that the Authority erred in considering information that was not provided by the applicant, this is rejected. The Authority was expressly empowered by s 473DC to obtain information, and, for the reasons I have given above, subject to meeting s 473DD(a) of the Act, the Authority was able to consider that information.
The applicant’s argument is untenable. The Authority here properly applied s 473DD of the Act and made no jurisdictional error.
The sole ground of review is dismissed.
CONCLUSION
The applicant is represented by Senior Counsel instructed by solicitors, I need go no further to consider the Authority’s decision for any other error in these circumstances.
Since the matter was heard the name of the Minister has changed. I will therefore make an order that the name of the first respondent be changed to the “Minister for Immigration, Citizenship and Multicultural Affairs”.
The application is dismissed.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of Chief Judge Alstergren. Associate:
Dated: 11 August 2022
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