FEDERAL COURT OF AUSTRALIA

AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the costs of the first respondent, such costs to be taxed in default of agreement.

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

REASONS FOR JUDGMENT

THE COURT:

1    This appeal concerns s 437DD of the Migration Act 1958 (Cth) (“the Act”). The section is contained in Part 7AA of the Act, which governs the review process for a decision made by the first respondent (“the Minister”) not to grant a protection visa to a “fast track applicant”. For present purposes it is sufficient to note the following salient features of the review process:

(a)    s 473CA imposes a duty on the Minister to refer a fast track reviewable decision to the Immigration Assessment Authority (“the Authority”) as soon as reasonably practicable after the decision is made;

(b)    s 473CB imposes a duty on the Secretary to the Department of Immigration and Border Protection (“the Secretary”) to give the Authority the “review material” in respect of each fast track reviewable decision that is referred by the Minister. The “review material” includes a statement that sets out the findings of fact made by the person who made the decision, refers to the evidence on which those findings were based, and gives reasons for the decision. The “review material” also includes “material provided by the referred applicant to the person making the decision before the decision was made” and “any other material that is in the Secretary’s possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review”;

(c)    s 473CC(1) provides that the Authority “must review a fast track reviewable decision referred to the Authority under section 473CA”. In Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 (“Plaintiff M174”), the High Court held that the task of the Authority under s 473CC is to consider the application for a protection visa afresh and to determine for itself whether or not it is satisfied that the criteria for the grant of the visa had been met;

(d)    s 473DB sets out the requirement that, subject to the Part, the Authority is to review a fast track reviewable decision referred to it under s 473CA by considering the “review material” provided to the Authority under s 473CB without accepting or requesting new information and without interviewing the referred applicant; and

(e)    s 473DD is an exception to the prohibition under s 473DB on the Authority considering new information.

2    Section 473DD provides as follows:

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.

3    The issue in the present case concerns the restriction in s 473DD(a), namely the Authority must not consider new information unless it is satisfied that there are “exceptional circumstances” to justify considering the new information.

4    The appellant is a Tamil citizen of Sri Lanka. He arrived in Australia in November 2012 as an unauthorised maritime arrival and made an application for a protection visa in February 2017, claiming to fear persecution for reasons that included his perceived links to the Liberation Tigers of Tamil Eelam (“LTTE”). One of his claims was that he was arrested and tortured by the Criminal Investigation Department (“CID”) in August 2011, but was released after paying a bribe. He also claimed that in May 2012 he was stopped by CID officers who told him to attend their office the next day with more money. The Minister’s delegate, who reviewed his visa application, did not accept that the incidents with the CID occurred. His visa application was refused and the refusal was referred to the Authority for review as required by s 473CB. Before the Authority concluded its review, the appellant provided the Authority with a statutory declaration which included details of the appellant’s arrest and detention by the CID in August 2011. The appellant’s account in his statutory declaration included the “new information” that the appellant had refused to give the CID his true identity and details as he knew that he was on the watch list as a searched for LTTE fugitive and that they would kill him if they knew who he was.

5    The Authority was not satisfied that there were exceptional circumstances to consider this new information and did not take it into account in its review. The Authority gave the following explanation:

In his declaration the [appellant] stated that when he was detained by the Criminal Investigation Department (CID) in August 2011 the CID did not know who he was and he “refused to give them my true identity and details as I knew I was on the watch list as searched for LTTE fugitive”. The [appellant] did not advance this claim at the SHEV interview when asked about his 2011 detention and I find that this is new information. I have had regard to the [appellant’s] response to questions put to him at the interview about this matter. The delegate advised the [appellant] that she could not understand why the CID did not come looking for him when he did not report back to them as this was one of the conditions of his release. The [appellant’s] response to this question was that “the address they had was my father’s one so they went looking for me there”. The [appellant] did not advance that he “refused to give them my true identity” and that they did not know his real name. I consider that the [appellant] had the opportunity at the interview to advise the delegate of the claim that he did not give the CID his real name. Furthermore, the response the [appellant] gave at the interview (that they had his father’s address) contradicts his claim that the CID did not identify him during the period he was detained. I am not satisfied that there are exceptional circumstances to consider this new information.

6    The appellant argued that in focusing only on the appellant’s failure to take the opportunity to provide the information at the interview, in which the appellant gave a response that was inconsistent with the information with another response in that interview, the Authority limited itself to an unduly narrow interpretation of “exceptional circumstances”. It was submitted that there was no consideration evident in the decision record of any matter beyond the failure of the appellant to provide the information at the interview and the Authority thereby failed to consider all the matters capable of constituting the circumstances of the appellant’s case as “exceptional”. It was submitted that this was an error of the same character as the error identified in BVZ16 v Minister for Immigration and Border Protection (2017) 254 FCR 221 (“BVZ16”), Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 (“BBS16”), and CHF16 v Minister for Immigration and Border Protection [2017] FCAFC 192 (“CHF16”). In each of those cases it was held that the Authority failed to address all the matters bearing upon whether it should have been satisfied that there were “exceptional circumstances”.

7    In BVZ16, White J, after reference to R v Kelly [2000] QB 198 at [51] and other authorities, held that “exceptional circumstances” will be those that are out of the ordinary course and which justify the new information being considered even though the information was not provided to the Minister at the time of the s 65 decision. White J stated that, generally, consideration of whether “exceptional circumstances” exist will require consideration of all relevant circumstances because even though no one factor may be exceptional, in combination the circumstances may be such as reasonably to be regarded as exceptional. White J found that the Authority, in that case, had adopted an inappropriately narrow understanding of the scope of the term “exceptional circumstances” in applying s 473DD because the Authority had confined its consideration as to whether there were exceptional circumstances to the evaluation of the appellant’s explanation for not having disclosed the information earlier. His Honour reasoned that whilst the requirements in s 473DD(a) and s 473DD(b) are cumulative, they may nevertheless overlap and because ss 473DD(b)(i) and 473DD(b)(ii) involve different considerations, both considerations are potentially relevant in considering whether the circumstances are “exceptional” and meet the requirements of s 473DD(a).

8    In BBS16 the Full Court agreed with White J that the phrase “exceptional circumstances” is to be given a broad meaning along the lines of circumstances that are unusual or out of the ordinary and, the Court stated, this “necessarily requires that consideration be given to all the relevant circumstances in determining whether there are ‘exceptional circumstances’”. The Full Court rejected the Minister’s contention that White J had misconstrued or misapplied the term “exceptional circumstances” in s 473DD(a), holding that the Authority’s consideration of either or both of the limbs in sub-para (b) may inform the Authority’s satisfaction under sub-para (a) as to whether there are exceptional circumstances to justify considering the new information. The Full Court held that the Authority, in that case, had made a similar error to that which was identified in BVZ16 because the Authority’s lack of satisfaction that there were exceptional circumstances to justify considering the new information was based only on the Authority’s finding that the visa applicant had not provided any explanation as to why the new information could not have been provided earlier. The Authority did not address other matters potentially relevant to whether the issue of “exceptional circumstances”, which included material which explained why the visa applicant had not previously disclosed the new information.

9    In CHF16, the Full Court likewise held that the Authority erred in determining that it was not satisfied that there were exceptional circumstances to justify considering the new information. The Full Court reasoned that the Authority considered only the fact that the new information, which related to events prior to the primary decision being made, was not brought forward by the appellant and did not take into account why the new information was not brought forward earlier “or any other circumstances”, stating that the Authority “did not address itself to whether the material was credible personal information or information of such a character which was not previously known to the Minister and, had it been known, may have affected the consideration of the appellants’ claims”. The Full Court posited, but left open, the question whether it is possible, as a matter of substance in a given case, to consider “exceptional circumstances” without considering each of the s 473DD(b) matters.

10    In the Court below, the primary judge rejected the appellant’s contention that the Authority had committed the same legal error by confining its consideration of the s 473DD(a) requirement “exclusively” to an evaluation of the matters under s 473DD(b)(i). The primary judge held that the Authority had “dealt with the substance” of the matters mentioned in s 473DD(b)(ii), although it did not specifically refer to that subsection. At [37], the primary judge noted that the appellant’s “only issue” with the Authority’s finding that it was not satisfied that there were exceptional circumstances justifying the consideration of the new information “was based on the [appellant’s] perception that the Authority had not considered the matters required by s 473DD(b)(ii) of the Act, so as to properly inform itself about whether there were exceptional circumstances”. The primary judge concluded that as the Authority did consider the matters required by s 473DD(b)(ii) of the Act, “the Authority properly considered the matters required to be considered under s 473DD(a) of the Act”.

Grounds of Appeal

11    There are two grounds of appeal. Ground 1 challenges the correctness of the primary judge’s finding that the Authority had considered the s 473DD(b)(ii) requirement. Ground 2 challenges the correctness of the primary judge’s finding that the Authority “properly considered the matters required to be considered under s 473DD(a) of the Act”.

 Consideration

12    In support of the appeal grounds, counsel for the appellant submitted that it was “essential … at a minimum” for the Authority to evaluate the credibility of the new information and the significance of the new information to the appellant’s claims. It was submitted that there was not only no actual finding on the s 473DD(b)(ii) matters, but also that merely noting an inconsistency in the accounts did not constitute proper consideration as to whether the new information was credible personal information that may have affected the consideration of the appellant’s claims. It was also submitted that the primary judge misunderstood the appellant’s argument below. It was submitted that s 473DD(a) and s 473DD(b) are cumulative, not co-extensive, requirements so that the question of whether “exceptional circumstances” exist cannot be answered just by looking at the s 473DD(b) matters, but also requires consideration of whether there is anything out of the ordinary that justifies consideration of the new information. It was submitted that the Authority’s reasons did not reveal any consideration beyond the fact of the inconsistent accounts, which was an inadequate basis upon which to decide that “exceptional circumstances” did not exist to justify consideration of the new information. It was put that there was no consideration of the importance of the new information to the appellant’s claims, or of the appellant’s personal circumstances, or of the credibility of the new information, or of the reason for the later inconsistent account.

13    As a matter of construction, it is undoubtedly correct that s 473DD(a) and s 473DD(b) are cumulative requirements. Section 473DD(a) imposes the requirement that the Authority must not consider new information unless it is satisfied that there are exceptional circumstances to justify considering the new information. Section 473DD(b) imposes the further requirement that the new information was not, and could not have been, provided to the Minister before the Minister made the decision to refuse to grant the protection visa (s 473DD(b)(i)) or is new information that 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 (s 473DD(b)(ii)). “Exceptional circumstances” is not a defined term for the purposes of s 473DD(a) and the words are to be given their ordinary meaning. In ordinary meaning, circumstances are “exceptional” if the circumstances may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon: BVZ16; Plaintiff M174. In Plaintiff M174 the plurality (Gageler, Keane and Nettle JJ with whom Gordon and Edelman JJ each agreed in separate reasons) observed at [30] in relation to the requirement in s 473DD(a):

Quite what will amount to exceptional circumstances is inherently incapable of exhaustive statement. The word “exceptional”, in such a context, is not a term of art but “an ordinary, familiar English adjective”: “[t]o be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered”.

The quotation is from R v Kelly at [51], which was also cited in BVZ16 for the meaning “exceptional circumstances” in the context of s 473DD(a). There may be a combination of factors which, when viewed together, constitute “exceptional circumstances”, or one factor of its own which may be sufficient for “exceptional circumstances” to exist. In each case, whether there are exceptional circumstances must depend on the particular circumstances of the visa applicant’s case.

14    As the plurality in Plaintiff M174 made clear, what will amount to exceptional circumstances is inherently incapable of exhaustive statement. Each case will be different to every other case and must be treated on its merits and the matters for the Authority to take into consideration must necessarily vary from case to case. It is a misconception that the factors in s 473DD(b)(i) and (ii) of the Act must, in all cases, be considered by the Authority in deciding whether “exceptional circumstances” exist as s 473DD(b) does not codify what constitutes “exceptional circumstances”. Rather, s 473DD(b) sets out the further preconditions that must also be met before the Authority can consider the new information cumulatively upon the precondition set out in s 473DD(a): Plaintiff M174 at [31]. As BVZ16, BBS16 and CHF16 illustrate, in many cases consideration of the factors in ss 473DD(b)(i) and/or (ii) may assist the Authority in deciding whether or not it is satisfied that exceptional circumstances exist but whether those factors will have bearing upon that decision will depend on the particular case.

15    In the present case, the question for the Authority was what, if anything, took the circumstances of the appellant’s case out of the usual or ordinary course to justify consideration of the new information. It was necessary for the Authority to examine whether there was anything about the new information or the appellant’s circumstances which meant that there were exceptional circumstances justifying consideration of the new information. The Authority referred to the fact that at the time of the interview it was expressly put by the delegate to the appellant that she could not understand why the CID did not come looking for him when he did not report back to them, as this was one of the conditions of his release and the Authority considered that the appellant had the opportunity at the interview to advise the delegate of the claim that he did not give the CID his real name. The Authority also referred to the fact that the new information was a contradictory account of what the appellant said had happened when he was detained by the CID in August 2011.

16    Contrary to the appellant’s submission, the Authority did not conclude that the s 473DD(a) requirement was not met solely upon an evaluation as to whether the new information was information that could have been provided to the Minister’s delegate. Although the Authority did not make any finding in express terms in respect of the s 473DD(b)(ii) requirement, the primary judge was correct to hold that the Authority, in substance, addressed as a factor bearing upon whether exceptional circumstances existed, whether the new information was credible information that, had it been known to the delegate, may have affected consideration of the appellant’s claims. It is not to the point that no express finding was made under s 473DD(b)(ii), as the exceptional circumstances test did not require an express finding to be made. The Authority plainly based its conclusion that exceptional circumstances did not exist upon its lack of satisfaction that the new information was credible.

17    Although the appellant argued that the Authority took too narrow a view as to what constitutes exceptional circumstances, the appellant was unable to point to any fact or matter materially bearing upon the Authority’s consideration as to whether it was satisfied of the requirement under s 473DD(a) that was not taken into account and, had it been taken into account, would have materially borne upon its consideration. In our opinion, it has not been shown that the Authority took an unduly restricted approach to the question of whether exceptional circumstances existed. The fact that a different account was put to the Authority would not, of itself, constitute “exceptional circumstances” to justify consideration of the new information. Nor, contrary to the appellant’s submissions, was the Authority obliged to evaluate the credibility of the new information or the significance of the new information to the appellant’s case beyond the consideration given, absent some feature or matter to cause, or which should have caused, the Authority to consider that there was something about the appellant’s case which made it unusual or out of the ordinary. Nor does it appear from the material that anything was put to the Authority about the appellant’s personal circumstances or reason for the later inconsistent account, which was potentially relevant to the issue of “exceptional circumstances”. In the present case, as the Authority reasoned, the new information was information which the appellant could have provided the delegate in response to direct questioning on the topic and was information which was inconsistent with the version of events he gave the delegate. In our opinion, it was open to the Authority to decide, having regard to those matters, that it was not satisfied that exceptional circumstances existed.

18    Accordingly, we are of the view that the appeal must be dismissed. In view of our conclusion, we have not addressed the Minister’s notice of contention.

Associate:

Dated:    13 July 2018