FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110

ORDERS

THE COURT ORDERS THAT:

1.    The First Respondent be granted an extension of time within which to file the Notice of Contention dated 31 January 2018.

2.    The appeal be dismissed.

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

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    The appellant, the Minister for Immigration and Border Protection (the Minister), appeals from a judgment of the Federal Circuit Court (FCC) which quashed a decision of the Immigration Assessment Authority (the Authority) (see CQW17 v Minister for Immigration & Another [2017] FCCA 2378). The Authority affirmed the decision of a delegate of the Minister to refuse to grant a protection visa to the first respondent, CQW17. CQW17 opposes the appeal and in addition seeks leave to file a notice of contention by which he relies on certain additional grounds to support the primary judge’s conclusion.

2    The appeal and notice of contention concern whether, in deciding that it was not permitted to consider “new information” put forward by CQW17, the Authority correctly construed and applied s 473DD in Part 7AA of Migration Act 1958 (Cth) (the Act). For the reasons we explain we consider that the FCC erred in the construction and application of s 473DD but the judgment should be affirmed on grounds other than those relied on by the primary judge. We therefore dismiss the appeal.

Section 473DD

3    Section 473DD of the Act governs the circumstances in which the Authority may consider new information put forward by a referred applicant. It provides:

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)    it 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 factual and procedural background

4    CQW17 is a 25 year old male citizen of Iraq who arrived in Australia on 8 May 2013 by boat. As such he was an unauthorised maritime arrival as defined in s 5AA of the the Act, and he was precluded from making a valid visa application: s 46A(1). On 21 October 2016 the Minister exercised his power under s 46A(2) to allow CQW17 to make an application for a protection visa.

5    On 24 November 2016 CQW17 applied for a temporary protection visa and accordingly became a “fast track applicant”, as that expression is defined in s 5(1) of the Act. In seeking a protection visa he claimed to fear harm at the hands of the Mahdi Army and other militia groups in Iraq on the basis that: (a) he will be perceived to not be of Arab ethnicity (as he was born in Iran and his accent reveals this) and therefore a “stranger” or “foreigner”; (b) the general security situation in Iraq; (c) his employment as a hairdresser, and specifically the fact that he gives western style haircuts, beard trims or eyebrow treatment; (d) his having tattoos on his body; (e) if returned to Iraq he would return with his Christian wife, who he fears would be killed because she will not wear a veil; and (f) if returned to Iraq he will be recruited by the Mahdi Army.

6    CQW17 was interviewed by a delegate of the Minister (delegate) on 7 March 2017. On 12 April 2017 the delegate decided to refuse to grant a protection visa. It is unnecessary to recount the delegate’s reasons for refusal given the narrow scope of the appeal before us.

7    The delegate’s decision was a “fast track reviewable decision” under s 473BB in Pt 7AA of the Act. As required by s 473CA, on 20 April 2017 the Minister referred the delegate’s decision to the Authority for review.

8    Subject to Pt 7AA, s 473DB(1) required the Authority to review the delegate’s decision by considering the review material provided to it under s 473CB, without accepting or requesting “new information” and without interviewing CQW17. Section 473DD in Pt 7AA provides the Authority may consider new information only if it is satisfied of the matters in subparas (a) and (b) of that provision.

The new information

9    CQW17 provided additional written submissions to the Authority on 4 May 2017, including the following information which was not before the delegate. First, CQW17 submitted:

[M]y brother who is living in Iran has told me that there was a raid on my family house and my father was terribly affected and traumatised and because of that danger and the absence of law and order to follow an arrest on those raiders now my father together with my mum and the rest of my family were forced to leave Iraq and go back to Iran.

We call this the New Raid Information. Next, he submitted:

Her [his Christian partner’s] parents are very appalled and disappointed to our relationship, they never accepted that I am a Muslim only by name when it comes to practicing and rituals. I don’t practice any of the Islamic orders, I drink, dance and date girls and I am very adopted to the Western culture in style and mentality.

We call this the New Religious Information.

The Authority’s decision in relation to the new information

10    On 30 May 2017 the Authority notified CQW17 of its decision on the visa application (the Authority’s decision), in which it affirmed the delegate’s decision not to grant CQW17 a protection visa.

11    In relation to the new information the Authority’s decision set out the requirements of s 473DD at paragraph four. It concluded that it was not permitted under s 473DD to consider the New Religious Information and the New Raid Information.

The application for judicial review to the FCC

12    CQW17 sought judicial review of the Authority’s decision in the FCC on the basis of three broad and unparticularised grounds. In the course of the hearing, in the discharge of his duty as a model litigant, the Minister raised an additional issue. This additional ground was whether the Authority had erred because it was required to, but did not, turn its mind to whether exceptional circumstances existed to justify it considering the New Religious Information.

13    In his judgment on the application the learned primary judge dismissed the three broad grounds set out in the application but found in favour of CQW17 on the additional ground raised.

14    His Honour summarised the Minister’s submissions in relation to the additional ground as follows (at [16]):

Section 473DD(a) of the Act is concerned with whether exceptional circumstances exist which would justify consideration by the IAA of “new information”. The Minister observed in relation to the quoted para.5 that the IAA had not explicitly “referenced” s.473DD(a) when deciding whether to consider “new information” from the applicant but submitted that a finding that any one subparagraph of s.473DD is not satisfied is sufficient for the IAA to find that s.473DD is not satisfied with the consequence that it need not consider the “new information”. He argued that s.473DD only obliges the IAA to make findings in respect of both subparagraphs if it ultimately finds s.473DD is satisfied and so has regard to the “new information”. He also submitted that it should be inferred that even though the IAA had not referred expressly to s.473DD(a), it ought to be inferred that had it nevertheless considered whether exceptional circumstances warranting consideration of the information existed.

15    His Honour, however, concluded (at [18]-[19]):

…The difference between the IAA’s reasoning in para.5 of its decision record and its reasoning in para.6, where the possible existence of exceptional circumstances was expressly considered, lies in the fact that in the latter s.473DD(b) had been satisfied and so s.473DD(a) had to be addressed squarely, whereas in the former s.473DD(b) had not been satisfied. I infer, in that circumstance, that the IAA believed that it was not necessary for it to also consider s.473DD(a) in the context of the discussion in para.5 of its decision record.

The question then is whether such a failure amounts to jurisdictional error. On appeal in BVZ16 v Minister for Immigration & Anor [2017] FCA 958, White J found at [36] and [37] that it does. There his Honour found that as the trial judge I had erred by not finding that the IAA had erred by only considering s.473DD(a) and not s.473DD(b) too. As a result, I must conclude in this case that the IAA’s failure to consider s.473DD(a) amounts to a similar reviewable error.

(Emphasis added.)

16    His Honour made orders quashing the Authority’s decision and remitted the review application to the Authority to be determined according to law.

17    The Minister appealed to this Court on 20 October 2017. On 31 January 2018 CQW17 sought leave to file a notice of contention out of time.

The Notice of Contention

18    Having regard to our decision it is convenient to commence with the notice of contention. It contains four grounds other than those relied on by the primary judge, on the basis of which CQW17 contends the decision of the primary judge should be upheld.

The extension of time application

19    Pursuant to r 36.24 of the Federal Court Rules 2011 (Cth) CQW17 had 21 days to file any notice of contention following service of the notice of appeal from the FCC decision. The date upon which CQW17 was served with the notice of appeal is not clear, but it is uncontentious that he did not file a notice of contention within the 21 day period allowed.

20    On 31 January 2018, through Legal Aid New South Wales, CQW17 filed an application for an extension of time to file the notice. The application is supported by an affidavit of Katie Wrigley, the solicitor with the carriage of the application, which attaches the notice of contention sought to be filed. Ms Wrigley’s unchallenged evidence is that the delay in filing the notice of contention resulted from the fact that CQW17 cannot afford a lawyer and is in immigration detention. Because he is in detention the task of seeking legal assistant has fallen to his wife who has experienced significant difficulties and delay in obtaining pro bono legal representation.

21    It is appropriate to allow an extension of time because; (a) the delay in filing the notice was for reasons largely beyond the CQW17’s control. He and his wife attempted to obtain legal assistance at an early date and the delay resulted from the (apparently) limited capacity of Salvos Legal to progress the matter in a timely way. Once the matter was referred to Legal Aid New South Wales, the notice and extension of time application were filed expeditiously; (b) the Minister has suffered no material prejudice and does not oppose the extension of time; and (c) the notice of contention raises a serious question as to whether the Authority’s decision was made according to law. It is in the interests of justice to ensure that an administrative decision arguably affected by jurisdictional error is not carried into effect, especially where the affected person may suffer real prejudice: ARK16 v Minister for Immigration and Border Protection [2018] FCA 825 at [25] per Mortimer J.

22    Having regard to the way the argument proceeded, it is convenient to commence with Grounds 3 and 4 of the notice of contention.

Grounds 3 and 4 – the grounds relating to the New Raid Information

23    In his written submissions to the Authority on 4 May 2017 CQW17 raised, for the first time, the New Raid Information – that is, that his parents’ home had been raided and his parents and the rest of the family had been forced to flee Iraq, as set out at [9] above. The Authority dealt with this new information at paragraph six of its decision:

The applicant also states that he has recently been informed by members of his family that there was a raid on his parents’ house and they have been forced to relocate to Iran. If this event post-dated the delegate’s decision then it clearly could not have been provided to the delegate. The applicant goes on to discuss why he could not return to Iran, however as he is an Iraqi national the central consideration is whether he is unable or unwilling to avail himself of the protection of Iraq, not of Iran. I am not satisfied that there are exceptional circumstances to justify the consideration of this information.

Ground 3 and 4 of the notice of contention both concern this paragraph of the Authority’s decision.

24    Ground 3 is in the following terms:

The primary judge should…have held that the IAA’s decision was affected by jurisdictional error as the IAA failed to consider section 473DD(b)(ii) when determining whether there were “exceptional circumstances” for the purposes of section 473DD(a), in relation to the new information that there had been a raid on the First Respondent’s parents’ house in Iraq and they had been forced to relocate to Iran.

CQW17 says that in assessing whether it is satisfied that exceptional circumstances exist under s 473DD(a) the Authority should have but did not have regard to the matters in s 473DD(b)(ii), and too narrowly construed exceptional circumstances.

25    Ground 4 is in the following terms:

The primary judge should alternatively or in addition have held that the IAA’s decision was affected by jurisdictional error as the IAA failed to consider section 473DD(b)(ii) when determining whether there were “exceptional circumstances” for the purposes of section 473DD(a), in relation to the new information that there had been a raid on the First Respondent’s parents’ house in Iraq and they had been forced to relocate to Iran.

CQW17 says that in assessing whether exceptional circumstances exist under s 473DD(a), the Authority should have but did not consider relevant material provided to it (that is, the New Raid Information), which constitutes a constructive failure to exercise its jurisdiction: see Craig v South Australia [1995] HCA 58; (1995) 185 CLR 163 at [14].

The Minister’s contentions

26    The Minister characterises Ground 3 as a contention that the Authority’s assessment of whether exceptional circumstances exist (subpara (a)) required consideration of whether that new information is credible personal information which was which was not previously known, and had it been known, may have affected consideration of CQW17’s claims (subpara (b)(ii)). The Minister says this cannot be the case.

27    The Minister submits, first, that the conjunctive ‘and’ separating subparas (a) and (b) of s 473DD means that the requirements of s 473DD(a) and (b) are cumulative. He says the correctness of this approach is supported by standard principles of statutory interpretation, and by decisions of the High Court and the Full Court of this Court: see Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 (Plaintiff M174) at [31]; Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 (BBS16) at [102]; CHF16 v Minister for Immigration and Border Protection [2017] FCAFC 192 (CHF16) at [17]-[18] and DYS16 v Minister for Immigration and Border Protection [2018] FCAFC 33 (DYS16) at [31]. The Minister contends therefore that the Authority is prohibited from considering new information unless it is satisfied of the matters in subparas (a) and (b)(i) or (ii).

28    On that basis the Minister says that if a referred applicant cannot meet either requirement, the Authority must not consider the new information. If the Authority is not satisfied that exceptional circumstances exist to justify considering the new information under subpara (a), the prohibition on considering that information remains, even if the Authority does not consider the matters in subpara (b)(i) or (ii), or misconstrues or misapplies those subparagraphs in the process.

29    Second, the Minister contends that s 473DD(a) does not require the Authority to be satisfied of the existence of a particular fact or facts. He accepts that, in some cases, whether new information could not have been provided to the Minister at the time of the decision under s 65 (subpara (b)(i)), or is credible personal information that was not previously known but, had it been known, may have affected the consideration of CQW17’s claim (subpara (b)(ii)), may be relevant to the Authority’s assessment of exceptional circumstances, and refers to the decisions in BVZ16 v Minister for Immigration & Anor [2017] FCA 958 (BVZ16) at [9] per White J, BBS16 at [102], CHF16 at [17]-[18] and DYS16 at [31].

30    The Minister argues, however, that no decision of this Court or the High Court suggests that either or both of subparas (b)(i) and (ii) must be considered by the Authority in deciding whether it is satisfied that exceptional circumstances exist under subpara (a). The Minister contends that in circumstances where the Authority’s discretion in deciding whether exceptional circumstances exist is unconfined by the terms of s 473DD, it is wrong to read subpara (a) as requiring the Authority to take a particular matter into account unless such an implication is to be found in the subject matter, scope and purpose of the Act. He says that there is nothing in the text of s 473DD to suggest that matters set out in subpara (b)(ii) must be taken into account in determining the existence of exceptional circumstances. The Authority may, or may not, decide to have regard to those matters but they should not be treated as mandatory relevant considerations.

31    The Minister notes, as an aside, that the High Court in Plaintiff M174 said (at [75]) that the Authority’s lack of satisfaction as to subpara (a) “involved an evaluative judgment which was elaborately explained by the Authority and eminently justified by the reasons in gave” despite the fact that the Authority did not refer to or use any of the language in subparagraph (b)(ii). The Minister invites the Court to infer from this that had the matters in subpara (b)(ii) been a necessary consideration with respect to subpara (a), the High Court would have said so.

32    Third, in relation to Ground 4, the Minister says that the Authority identified the nub of the New Raid Information in the first sentence of paragraph six of its decision (set out at [23] above) which shows that the Authority was aware that CQW17 was claiming that events had taken place in Iraq that required his family to flee the country. In his contention the fact that the Authority did not set out the New Raid Information in full does not mean that the Authority overlooked it. It would not be a fair reading of the Authority’s decision to hold that its conclusion as to exceptional circumstances was based solely on CQW17’s submission about why he could not return to Iran.

33    Fourth, the Minister submits that the Authority did not focus solely on whether CQW17 could have provided the new information to the Minister prior to the delegate’s decision being made and therefore did not adopt an impermissibly narrow interpretation of exceptional circumstances in subpara (a). In the Minister’s submission the Authority gave consideration to the New Raid Information in the first and third sentences of paragraph six of its decision, in a way that broadly reflected the requirements of s 473DD(b)(ii). He argues this distinguishes the present case from BVZ16.

34    Fifth, the Minister argues that the fact the Authority did not provide more detailed reasons for its not being satisfied of the criterion in s 473DD(a) does not mean it misinterpreted the expression exceptional circumstances. He says that the Authority’s task was to make an evaluative judgment in relation to the New Raid Information, and that it did so based on the limited information given to it by CQW17, which did not rise higher than bare assertion. In circumstances where CQW17 did not, for example, identify whom his brother suspected had raided the family home, or state why CQW17 fears harm and from whom he fears harm, the Minister says there was a satisfactory basis for the Authority’s conclusion that ‘exceptional circumstances’ did not exist such as to permit it to consider that information.

35    If it is found that the Authority overlooked the relevant part of the New Raid Information and/or misconstrued s 43DD(a), the Minister advanced the alternative contention that the result would not be jurisdictional error for two reasons:

(1)    the claims identified in the New Raid Information were not substantial, nor did they rely on established facts: see SZUTM v Minister for Immigration and Border Protection (2016) 241 FCR 214 (SZUTM) at 228 [45] per Markovic J, citing Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALJR 1088 (Dranichnikov) at 1092 [24] per Gummow and Callinan JJ. The Minister describes the New Raid Information as bare assertions at a high level of generality which lacked any evidentiary support, and argues that the alleged error by the Authority is inconsequential in circumstances where there was a finding as to subpara (b)(i) and no possibility of CQW17 satisfying the requirements in subpara (b)(ii); and

(2)    even if the Authority was required to consider the New Raid Information, given its lack of detail it could not be characterised as the kind of relevant material the ignorance of which could sound in invalidity. The Minister contends that the New Raid Information was not so cogent, and did not play such an important part in the assessment of CQW17’s claims that its being overlooked would amount to a jurisdictional error: Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 (SZRKT) at [112] and [122] per Robertson J. The Minister contends that information did not centrally relate to whether CQW17 had a well-founded fear of persecution or whether there was a real risk he would suffer significant harm if he were returned to Iraq.

Consideration

36    There can be no question that the requirements of s 473DD(a) and (b) are cumulative. That is plain as a matter of statutory interpretation. The Authority is therefore prohibited from considering new information unless it is satisfied of the matters in subparas (a) and (b). However we do not accept the Minister’s contentions that the Authority correctly applied the provision. Grounds 3 and 4 of the notice of contention are made out.

37    First, paragraph six of the Authority’s decision represents the totality of its reasoning in relation to the New Raid Information. It is established that the Court should not construe the reasons of decision-makers such as the Authority minutely “with an eye keenly attuned to the perception of error”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. Bearing this in mind, it is nonetheless clear that the Authority did not consider whether the New Raid Information was credible personal information which was not previously known and, had it been known, may have affected the consideration of CQW17’s claims, under subpara (b)(ii).

38    As the Minister observed, the Authority set out the New Raid Information in the first sentence of paragraph six of its decision:

The applicant also states that he has recently been informed by members of his family that there was a raid on his parents’ house and they have been forced to relocate to Iran.

However, contrary to the Minister’s submissions, this does not show that the Authority considered the New Raid Information. On a fair reading it is merely a brief restatement of that information. The function of this sentence was only to introduce the subject of the New Raid Information so that it could be dealt with in the rest of the paragraph.

39    Consideration of a representation or submission by a decision-maker requires an “active intellectual process directed at that representation or submission”: Tickner v Chapman [1995] FCA 1726; (1995) 57 FCR 451 at 462-3 per Black CJ; AGA16 v Minister for Immigration and Border Protection [2018] FCA 628 at [31] per Moshinsky J. The Authority’s restatement does not show any real consideration in the sense of an “active intellectual process” directed at the material.

40    The second sentence of paragraph six observes (correctly in our view) that the New Raid Information may satisfy the requirements of subpara (b)(i) if the events in question had occurred after the delegate’s decision:

If this event post-dated the delegate’s decision then it clearly could not have been provided to the delegate.

41    The third sentence of paragraph six said:

The applicant goes on to discuss why he could not return to Iran, however as he is an Iraqi national the central consideration is whether he is unable or unwilling to avail himself of the protection of Iraq, not of Iran.

42    In the Minister’s submission, this shows that the Authority gave consideration to CQW17’s assertion that he would not be able to return to Iraq. We disagree. On a fair reading, this sentence means no more than what it says: it was not relevant that CQW17 considered he could not return to Iran (because he is citizen of Iraq not Iran). The Minister was unable to point to anything which shows that the Authority considered any relevant aspect of the New Raid Information as it related to the risks of persecution or harm CQW17 said he would face if returned to Iraq. We do not accept that paragraph six should be read as, in effect, containing other reasons for the Authority’s decision than what emerges from a fair reading.

43    The final sentence of paragraph six states:

I am not satisfied that there are exceptional circumstances to justify the consideration of this information.

It sets out the Authority’s conclusion in relation to ‘exceptional circumstances’ under subpara (a) and it does not show consideration of the matters which would fall under subpara (b)(ii).

44    The gist of the New Raid Information was that, after CQW17 had come to Australia, his family home had been raided and his parents and the rest of his family were forced to flee Iraq. Such information was relevant as to whether CQW17 has a well-founded fear of persecution if he were returned to Iraq or whether there is a real risk he would suffer significant harm in Iraq. On a fair reading of its decision the Authority distracted itself from the parts of the New Raid Information that related to Iraq by focusing on and then dismissing the relevance of Iran.

45    What is missing from the Authority’s decision is any indication that it considered the fact that the raid to which CQW17 referred occurred in Iraq, or that his parents and family were forced to flee Iraq out of fear for their safety. The Authority did not deal with the part of the New Raid Information concerning CQW17’s fear of persecution if returned to Iraq, which should have been the central consideration.

46    Second, contrary to the Minister’s submissions, the New Raid Information was more than bare assertion. While brief, it was sufficiently detailed that it may have had a probative bearing on the Authority’s consideration of CQW17’s claims. CQW17 identified the source of the information (his brother), the event (a raid on his family home), the consequences (that his family fled the country) and the reasons they had done so (that there was an absence of law and order that meant the raiders were unlikely to be arrested). The decisions relied on by the Minister in his submissions (Dranichnikov, SZUTM and AWT15 v Minister for Immigration and Border Protection [2017] FCA 512) relate to a different statutory context and provide little support for his contentions.

47    Third, the Authority took an inappropriately narrow view of the breadth of the expression ‘exceptional circumstances’, and in doing so made a similar error to that identified in BVZ16 at [9] and [35]-[37] and the Full Court in BBS16 at [102]-[106].

48    In BVZ16 White J said (at [9]):

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.

(Emphasis added.)

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).

49    In BBS16 the Full Court said:

We are unpersuaded by the Minister’s contentions that in BVZ16 White J misconstrued or misapplied the term “exceptional circumstances” under s 473DD. We respectfully agree with his Honour’s reasons for concluding that the IAA in that case adopted an inappropriately narrow understanding of that phrase. In particular, we agree with his Honour’s findings and reasons that the requirements of subparas (a) and (b) of s 437DD are cumulative but may nevertheless overlap to some extent, with the effect that the IAA’s consideration of either or both of the limbs in subpara (b) may inform the IAA’s satisfaction under subpara (a) as to whether there are exceptional circumstances to justify considering the new information.

That is not to say, however, that the matters in subparas (b)(i) and (ii) are the only matters to be considered by the IAA in determining whether it is satisfied that there are exceptional circumstances to justify considering any new information.

(Emphasis added.)

50    The Minister wrongly describes the question as being whether, in assessing if exceptional circumstances under subpara (a) exist, the Authority is required to treat the matters in subparas (b)(i) and (ii) as mandatory relevant considerations. CQW17 did not advance that argument. Instead, consistently with the authorities to which we have referred, CQW17 contends that in the circumstances of his case the Authority should have, but did not, give consideration to the matters under subpara (b)(ii) in deciding that it was not satisfied that exceptional circumstances exist under subpara (a).

51    The expression ‘exceptional circumstances’ in subpara (a) has a broad meaning and it is not possible to state exhaustively what factors will be relevant or what the Authority must consider in a particular case: Plaintiff M174 at [30]. The Authority is obliged to consider all relevant circumstances, and as White J observed in BVZ16 the matters in (b)(i) and/or (ii) will usually form part of the consideration. In the circumstances of the present case, the Authority did not evaluate the significance of the relevant part of the New Raid Information, or turn its mind to whether it was credible personal information capable of informing its satisfaction as to the existence of exceptional circumstances. On a fair reading of paragraph six, the Authority’s finding as to (b)(i) was decisive, and this bespeaks an overly narrow interpretation of the expression ‘exceptional circumstances’.

52    With respect to the Minister’s arguments in the alternative, the Minister correctly observes that whether a failure to consider relevant material constitutes jurisdictional error will depend on considerations including the circumstances of the case, the nature and cogency of the material, and the place of the material in the assessment of the claims: VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [77]; SZRKT at [112]. We do not, however, accept the Minister’s contention that the New Raid Information is peripheral, too vague or insufficiently cogent to be rationally probative in the Authority’s reasoning.

53    The relevance of the New Raid Information is clear enough. The Authority decided (at paragraph 19) that there is no real chance that CQW17 would be seriously harmed due to generalised or sectarian violence if he is returned to Amarah in Iraq. The gist of the New Raid Information was to the contrary. It asserted there were considerable dangers and an absence of law and order in Iraq as shown by the fact that CQW17’s family home in Iraq had been raided, arrests were unlikely and the event was sufficiently serious to warrant his parents and the rest of his family fleeing the country.

54    It is not for the Court to decide the credibility of the New Raid Information but, on its face, it is cogent and has a logical bearing on the risks he would face if returned to Iraq. It is therefore capable of affecting the Authority’s decision as to whether CQW17 has a well-founded fear of persecution or that there is a real risk he will suffer significant harm in Iraq, his country of origin. Had the Authority properly undertaken its task under s 473DD it would have: (a) turned its mind to whether the information was credible information which may properly have affected the consideration of his claims in that regard; and (b) would have dealt with the New Raid Information that related to Iraq as potentially relevant to its decision.

55    Grounds 3 and 4 of the notice of contention are made out.

Grounds 1 and 2 – the grounds relating to the New Religious Information

56    At paragraph five of its decision, the Authority set out the reasons for its refusal to consider the New Religious Information. In Grounds 1 and 2 of the notice of contention CQW17 challenges that decision. In view of our conclusions on Grounds 3 and 4, it is unnecessary to deal with these grounds.

The Appeal

57    Given our conclusions on Grounds 3 and 4 of the notice of contention it is strictly unnecessary to deal with the sole ground of appeal. However, the issue was fully argued and it is appropriate to set out our view.

58    The Authority dealt with the New Religious Information at paragraph five of its decision, which relevantly states:

In his email the applicant…raises new claim for protection, this being that he is a non- practising Muslim, he drinks (presumably alcohol), dances and dates girls. This has not been raised at any point during the applicant’s PV application process and is new information. The applicant has not provided any information as to why the information as not or could not have been provided to the Department of Immigration and Border Protection (the Department). I note that the applicant was represented before the Department. I am not satisfied that this information could not have been provided to the delegate before the decision was made or that it constitutes credible personal information which was not previously known and had it been known may have affected the consideration of the applicant’s claims.

59    In the last sentence of the paragraph the Authority:

(1)    addressed whether the information could have been provided to the delegate before the decision was made (subpara (b)(i)); and

(2)    addressed (at least arguably) whether the information constitutes credible personal information which was not previously known and had it been known may have affected the consideration of CQW17’s claims (subpara (b)(ii)).

The Authority, however, made no reference to the requirement under subpara (a) that it be satisfied as to the existence of exceptional circumstances to justify considering the new information.

60    Before the FCC the Minister submitted that since subparas (a) and (b) of s 473DD are cumulative, if the Authority is not satisfied of the matters in subparas (b)(i) and (ii) the Authority is prohibited from considering new information even if it does not consider or make a finding in respect of exceptional circumstances under subpara (a). Thus, having decided in the present case that it was not satisfied as to the requirements under subparas (b)(i) and (ii), the Authority was not obliged to consider the requirement under subpara (a).

61    The primary judge did not accept this submission, and held that the decision in BVZ16 required a finding that the Authority fell into jurisdictional error by failing to consider the requirement under subpara (a).

62    The Minister’s notice of appeal contains a single ground of appeal:

The primary judge made an appealable error in holding that, in addition to having considered, and made findings on, the requirements of section 473DD(b) of the Migration Act 1958 (Cth) in relation to the new information described in paragraph 5 of the reasons of the second respondent (Authority), the Authority was required to consider, and make findings on, the requirements of section 473DD(a) in relation to that information, thereby falling into jurisdictional error, and his Honour ought to have found that the Authority was empowered to exclude that information from consideration solely on the basis of its findings in relation to section 473DD(b).

CQW17’s contentions

63    CQW17 does not dispute that the Authority must be satisfied of the requirements under both subparas (a) and (b) of s 473DD before it can consider new information, but denies that necessarily leads to the conclusion that the primary judge fell into error.

64    CQW17 relies on the decisions in BVZ16 at [9] and BBS16 at [102] which hold that the requirements of subparas (a) and (b) are cumulative, but nonetheless may overlap to some extent, such that consideration by the Authority of the requirements under subparas (b)(i) and (ii) may contribute to its satisfaction as to the existence of exceptional circumstances under subpara (a). Those cases held that by failing to give consideration to the requirements under subpara (b)(i) and (ii) when assessing whether it is satisfied that exceptional circumstances exist under subpara (a), the Authority misconstrued the breadth of the expression ‘exceptional circumstances’ and made a jurisdictional error. CQW17 says the correctness of this approach gains further support from the Explanatory Memorandum to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Explanatory Memorandum) at [915].

65    On CQW17’s submission, the reasoning in BVZ16 and BBS16 applies in the reverse circumstance: that is, consideration as to whether “exceptional circumstances” exist may contribute to the Authority’s satisfaction as to whether the New Religious Information is credible personal information that was not previously known under subpara (b)(ii). He submits that the Authority’s failure to turn its mind to this question means that it misconstrued the statutory test and made a jurisdictional error.

Consideration

66    The appeal is made out, but on a narrower basis than that contended for by the Minister.

67    As we have said, the cumulative structure of s 473DD(a) and (b) means that the Authority is prohibited from considering new information unless it is satisfied of the matters in subparas (a) and (b)(i) or (ii). Having said this, the Minister’s contention that the Authority is not required to consider whether exceptional circumstances exist under subpara (a) if it has decided that (b) is not made out misses the point. As the Full Court said in CHF16 “[i]n a formal sense the Minister’s submission is correct but, as a matter of substance, it has a tendency to sidestep the real issue”: at [46].

68    The primary judge found, as do we, that on a fair reading of its decision the Authority did not address the question of whether exceptional circumstances existed under subpara (a). His Honour inferred, as would we, that the Authority did not think it necessary to consider this limb of s 473DD in light of its conclusion that it was not satisfied as to the requirements under subparas (b)(i) and (ii). However, in our respectful view the primary judge erred in understanding the decision in BVZ16 (later affirmed in BBS16) as providing that he was bound to conclude that the Authority’s failure to consider subpara (a) constitutes jurisdictional error.

69    The present case involves a different question than that before the Court in BVZ16 (as well as BBS16 and CHF16). The question in those cases was whether, on a fair reading of the Authority’s decisions, the confined nature of the Authority’s consideration as to whether exceptional circumstances exist including its failure to consider the narrower matters in subpara (b)(i) and/or (ii), showed that it had misunderstood the breadth of “exceptional circumstances”. As the plurality in Plaintiff M174 acknowledged, what will amount to exceptional circumstances is incapable of exhaustive statement: at [30]. BVZ16 and the subsequent cases stand for the proposition that the matters under subparas (b)(i) and (ii) are potentially relevant in considering whether exceptional circumstances exist under subpara (a), and the Authority had erred in failing to consider them before concluding the requirements in s 473DD(a) were not satisfied.

70    The Minister’s appeal in this case essentially involves the reverse position. CQW17 contends that whether exceptional circumstances exist under subpara (a) was a matter capable of informing the Authority’s decision as to whether the new information was credible personal information pursuant to subpara (b)(ii).

71    We do not rule out the possibility that consideration of the matters in subpara (b) may be affected by consideration of whether there are exceptional circumstances under subpara (a). However that was not the question before the Court in BVZ16, and the narrower terms of subpara (b)(ii) may make it less susceptible of such “overlapping” interpretations. The primary judge was in error to consider that BVZ16 dictated a finding of jurisdictional error, particularly in circumstances where he was addressing whether consideration of subpara (a) could affect consideration of subpara (b) rather than the other way around.

72    Whether the Authority’s consideration of the existence of exceptional circumstances under subpara (a) is relevant to its satisfaction as to the matters in subpara (b)(ii) will depend upon the facts of the case. Although CQW17 argues that the Authority’s failure to consider subpara (a) means it did not give proper consideration to the requirement under subpara (b)(ii), he did not take the Court to anything that indicated: (i) what he asserted the exceptional circumstances to be; or (ii) how consideration of such asserted exceptional circumstances might have informed the Authority’s consideration to show that the new information is credible personal information which was which was not previously known, and had it been known, may have affected consideration of CQW17’s claims.

73    We are not persuaded this is a case where consideration of whether exceptional circumstances existed could have affected the Authority’s decision as to subpara (b)(ii), and we do not consider that the Authority’s failure to consider subpara (a) amounted to jurisdictional error. We respectfully consider the primary judge erred in that regard.

74    The Minister made out this ground of appeal.

Conclusion

75    The Minister made out the appeal ground alleged but on the basis that Grounds 3 and 4 of the notice of contention are upheld, the appeal must be dismissed.

76    We are not aware of any reason why costs should not follow the event and we have made orders for the Minister to pay CQW17’s costs. However, we have not heard the parties in relation to costs and we grant liberty to apply in relation to costs. Should either party seek a different costs order we will allow the filing of short submissions on costs (no more than two pages) within seven days, and short submissions in response within seven days thereafter. The Court will then deal with the question of cost on the papers.

I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices McKerracher, Murphy and Davies.

Associate:

Dated:    13 July 2018