Federal Court of Australia

AZAFF v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCAFC 176

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be changed to Minister for Immigration, Citizenship and Multicultural Affairs.

2.    The application for an extension of time filed on 5 February 2021 be dismissed.

3.    Leave to rely on the amended draft notice of appeal annexed to the affidavit of Catherine Follett filed on 6 October 2021 be refused.

4.    The applicants pay the costs of the first respondent to be taxed if not otherwise agreed.

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

REASONS FOR JUDGMENT

THE COURT:

introduction

1    Before the Court is an application for an extension of time to appeal a decision of the Federal Circuit Court of Australia (now Division 2 of the Federal Circuit and Family Court of Australia) delivered ex tempore on 3 June 2020 (AZAFF v Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 1540 (primary decision)). The applicant also seeks leave in the appeal to rely on new arguments not raised before the primary Judge.

2    Before the primary Judge the present applicants sought judicial review of a decision of the second respondent, the Immigration Assessment Authority, (IAA) made on 11 December 2017, affirming a decision of a delegate of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister) of 20 October 2017 to refuse protection visas to the applicants.

3    The amended draft notice of appeal (amended draft notice of appeal) on which the applicants seek leave to rely is dated 29 September 2021, and is annexed to the affidavit of their solicitor, Ms Follett, filed on 6 October 2021.

4    The Minister opposed the application for an extension of time and the application for leave to rely on the amended draft notice of appeal.

5    Both the applicants and the Minister were represented by Counsel at the hearing. The parties made submissions on the application for extension of time, leave to rely on the amended draft notice of appeal, and (on the premise that leave may be granted) proposed grounds of appeal.

6    For reasons that follow, the applicant’s application for an extension of time and application to rely on the amended draft notice of appeal must fail.

background

7    The applicants are citizens of Vietnam. The first and second applicants are sisters. The third applicant was born in 2016 in Australia, whilst in community detention, and is the daughter of the first applicant.

8    On 19 March 2011 the first and the second applicants arrived in Australia as unauthorised maritime arrivals, and were held in detention. The first applicant made a protection claim which was assessed by the Department of Immigration and Border Protection (as it then was). Relevant assessments found that the first applicant (and, by reliance on her application, the second applicant) were not owed protection obligations by Australia. The first and second applicants sought judicial review of those decisions, and the determinations were upheld by the Federal Circuit Court of Australia (as that Court was then known), a Judge of the Federal Court of Australia exercising the appellate jurisdiction of the Court, and the High Court in an application for special leave: AZAFF v Minister for Immigration and Border Protection [2016] HCASL 205; AZAFF v Minister for Immigration and Border Protection [2016] FCA 80 and AZAFG by her litigation guardian AZAFF v Minister for Immigration and Border Protection [2016] FCA 81.

9    On 23 August 2017, whilst in detention, the applicants were invited to apply for a temporary protection visa or Safe Haven Enterprise visa following a data breach by the Department of Immigration and Border Protection in 2014. The basis of that invitation rested on the implications of the data breach, which had not been previously assessed in determining the applicants’ protection claims. On 11 September 2017 the first applicant applied for a Safe Haven Enterprise (class XE) visa. The second and third applicants sought to be included in the applicant’s protection claim on the basis of their membership of the applicant’s family unit. This application was made under the “fast track” assessment process.

10    Relevantly, the first applicant claimed that, prior to arriving in Australia, she and the second applicant were living on the streets in Vietnam as “street children”. She claimed that her parents had abandoned her and her sister at a young age. She claimed that she and the second applicant collected empty cans to earn money, and travelled some 1,300 kilometres across Vietnam, before boarding a boat for Australia. The first applicant stated that she was fearful of returning to Vietnam with her sister and new daughter as practising Catholics and failed asylum seekers, and claimed that the applicants would be unable to continue study, gain good employment or reintegrate easily in Vietnam.

11    On 11 September 2017 the Department wrote to the first applicant, and pursuant to s 91W of the Migration Act 1958 (Cth) (Migration Act) requested the production of evidence of the identity, nationality or citizenship of the first and second applicants

12    Also on 11 September 2017 a migration agent and lawyer, Sr Symonds, wrote to the Department on behalf of the applicants, and advised that the first and second applicants had no identity documents, and that this fact had previously been the subject of a statutory declaration by the first applicant. At that time the first applicant claimed that she did not know anyone in Vietnam, and accordingly was unable to provide relevant identity documentation.

13    On 17 October 2017, prior to the delegate’s decision, the Australian Border Force caused a letter to be sent to the Embassy of the Socialist Republic of Vietnam seeking the assistance of the Embassy in registering in Vietnam the birth of the third applicant. This correspondence included details of the first, second and third applicants, as well as the third applicant’s father.

Decision of the delegate of the Minister

14    On 20 October 2017 a delegate of the Minister made the decision to refuse the applicants’ protection visa application.

15    The delegate was not satisfied that the applicants had taken reasonable steps to obtain and produce identity documents from Vietnam as required under s 91W of the Migration Act. Nonetheless, the delegate proceeded to make findings on the applicants’ identity and protection claims on the basis of information provided by the applicants as well as that otherwise available to the delegate from, inter alia, the Department.

16    Ultimately, the delegate did not accept key aspects of the claims of the applicants. The delegate relevantly said:

I have overall concerns over the applicant’s credibility. I do not accept the applicant’s claimed identity and have concerns that elements of her claims have been exaggerated or fabricated in the belief that it would enhance the success of her PV application. Having considered the applicant’s claims and information provided during the PV interview, I accept the following:

•    The applicant is a citizen of Vietnam.

•    The applicant is a Catholic.

•    The applicant’s daughter was born in Australia.

•    The applicant was affected by the departmental data breach.

•    The applicant would be a failed asylum seeker who left Vietnam unlawfully if returned.

I do not accept that:

•    The applicant is a former street child of Vietnam.

•    The applicant has a heightened profile in Vietnam for being a Catholic or for any community activity.

•    The applicant has a profile of interest to the Vietnam authorities.

17    Relevantly, in relation to the third applicant, the delegate observed:

PSG - Child born in Australia

The applicant fears applicant 3 (her daughter) is in need of protection as she was born in Australia and does not hold any Vietnamese identity documents. Furthermore, she fears she and her husband … will be imprisoned upon return to Vietnam.

As I have found the applicant does not have a well-founded fear of persecution on the basis of her religion, political opinion ‘data breach and implication if returned’ or PSG ‘failed returned asylum seeker who left Vietnam unlawfully,’ there is no reason why the applicant would be perceived to be an opponent of the Vietnamese Government or have a political profile of interest to Vietnamese authorities. Therefore, I do not accept the applicant would be imprisoned upon arrival and applicant 3 subsequently left without care if returned to Vietnam.

The Law on Vietnamese Nationality, Article 15 states: ‘…A child born inside or outside the Vietnamese territory whose parents, at the time of his/her birth, are both Vietnamese citizens has Vietnamese nationality’.

Given the Law on Vietnamese Nationality, the applicant could apply to the Vietnamese authorities to obtain Vietnamese identity documents for applicant 3. If the applicant does not register for a hộ khẩu the household registration system in Vietnam, applicant 3 may be prevented from accessing government services such as healthcare and education, but the decision to register is within the applicant's control. Further, there is no information that applicant 3 would be prevented from accessing non−government healthcare or education.

A search of country information could not locate any information on the treatment of children born outside of Vietnam. There is no country information to indicate children born outside of Vietnam would be treated differently to those returning as failed asylum seekers, including any discrimination.

The country information noted above under 'PSG − Failed Asylum Seeker who left Vietnam unlawfully' indicates the applicant is likely to be questioned, briefly detained and fined as a result of departing Vietnam illegally. Given applicant 3 is a young child it would be unlikely they would receive the same treatment. The processing of failed asylum seekers by the Vietnamese authorities does not amount to serious harm and therefore does not involve persecution.

In addition, there is no information to suggest that parents of children born outside of Vietnam are discriminated against or treated any differently to children born inside Vietnam.

Considering the above, I am satisfied applicant 3 does not face a real chance of persecution on account of being born in Australia.

Furthermore, throughout the PV interview the applicant often referred to not knowing what to do if she went back to Vietnam as a fear. She claimed she would not know how to obtain identity documents, where to live, would not know anyone and how to get a job. It was not until I put to the applicant during the PV interview that these fears do not amount to serious harm or persecution and is not a reason for why she is owed protection, she then claimed she would be bullied, beaten and arrested for not having any identity documents and because she lived on the streets. DFAT reports that returnees with no documentation may be briefly detained by the Ministry of Public Security (MPS) for the purpose of confirming their identity. DFAT does not report of any ill−treatment of returnees. The applicant was not a person of interest to the authorities at the time of leaving Vietnam and has not claimed to fear the Vietnamese authorities, with the exclusion on the basis of her religion which I have discounted above. I accept the applicant may be briefly detained and questioned on arrival, however this does not amount to serious harm as per the Act.

Additionally, country information indicates there are various non−government organisations and civil society organisations that exist in Vietnam who administer support services to single mothers, women and immigrants. NGOs catering to women in general exist with Department of Foreign Affairs and Trade (DFAT) stating that at present seven Australian Government agencies are operating within Vietnam offering a range of services. DFAT also reports that returnees to Vietnam have received assistance from Vietnamese provincial authorities and International Organisation for Migration (IOM) providing assistance to reintegrate them into the community. Furthermore, the applicant is now married and claimed during the PV interview that her husband's family is living in Vietnam, indicating she would have support networks in Vietnam.

During the PV interview the applicant claimed she feared 'society' upon returning to Vietnam. She claimed when she worked in Vietnam the people she worked for would abuse her and they would continue to take advantage of her if returned as she has no skills to be able to work. I do not find it plausible society in general would target and harm the applicant or former employers would remember or be able to locate and target her if she is returned. I do not accept the applicant would face a real chance of persecution from the general public in Vietnam.

As such, I do not accept the applicant has a profile of interest to the Vietnamese authorities or the public. The applicant would have access to support services in Vietnam to assist with re-establishment in Vietnam. Additionally, the applicant is no longer a child. She is married and has a child of her own. She has been educated in Australia and has acquired life skills to be able to live and subsist in Vietnam.

(footnotes omitted)

18    The delegate determined that the applicants did not meet the requirements of s 36 of the Migration Act as they did not have a well-founded fear of persecution and were not owed protection obligations as a refugee under s 5H (1) of the Migration Act. Accordingly, the Safe Haven Enterprise (Class XE) visas were refused.

Decision of the IAA

19    On 25 October 2017, the delegate’s decision was referred to the IAA for review under the “fast track” review process pursuant to Part 7AA of the Migration Act. In accordance with s 473CB of the Migration Act the IAA considered the material provided by the Secretary of the Department.

20    On 9 November 2017, the applicants, by Sr Symonds as their representative, made written submissions to the IAA. In relation to those submissions the IAA observed at [6]-[8] of its reasons that:

6.     I have had regard to the material given by the Secretary under s.473CB of the Migration Act 1958 (Cth) (the Act). On 9 November 2017 the IAA received a submission on behalf of the applicant and applicant sister from their representative, Sr Mary Symonds.

7.     Section 473DD of the Act provides that the IAA must not consider any new information from an applicant unless satisfied there are exceptional circumstances to justify considering the new information, and the new information was not and could not have been provided to the Minister or is credible personal information which was not previously known and had it been known may have affected the consideration of the applicant’s claims. The additional document provided on 9 November 2017 comprises a submission by the applicant’s representative addressing the delegate’s decision and findings. As such, it may be regarded as argument rather than new information and I have had regard to it. The submission does however contain new information from the applicant, as follows:

•    She found someone on Facebook who lives in Quang Binh province and asked them to contact the Catholic Church to locate her baptismal records. They tried but the church that the applicant had attended did not hold records;

•    The Department had found her story of being a street child implausible and concluded that it would have been highly unlikely that she could travel from Quang Binh to Saigon and then to Vun Tau. She didn’t do this quickly. When she caught the bus in Quang Binh and asked the driver if he could take them for free, they didn’t go straight to Saigon but to the next town where she would find work in restaurants or pick up cans to sell. She was resourceful and gradually moved from one town to another ending in Saigon. They did the same when moving to Vung Tau where she boarded the boat.

8.     The issue of the applicant’s claimed identity has been raised throughout the application process. At the PV interview the delegate directly stated that in her view section 91W of the Act would apply, as the applicant had not provided any identity documents. In relation to the second point, the issue of the sisters’ travel has been discussed on a number of occasions in the period 2011 to 2017. There is nothing in the document of 9 November 2017 to indicate why the new information could not have been provided earlier or why it comprises credible personal information. The applicants have not satisfied me that either ss. 473DD (b)(i) or 473DD (b)(ii) are met. I am also not satisfied that s.473DD(a) is met and have not had regard to those statements.

(emphasis added)

21    In relation to the third applicant, the IAA materially observed at [13], [24] and [33]-[34]:

13.     The applicant child is relying on the claims of the applicant, the family unit criteria and her own claim as follows:

•    She was born in Australia so all of her documentation is from Australia. She will be unable to attend school in Vietnam and will end up on the streets.

…    

24.     The applicant further claims, on behalf of the applicant child, that as the child was born in Australia she will be without any official documentation in Vietnam and will be unable to access education. The applicant child’s birth has been registered in Australia and on 17 October 2017 the Department requested the Vietnamese authorities to register her birth in Vietnam and issue a Vietnamese Birth Certificate. There is nothing before me to indicate that this request will be refused and I am not satisfied that such documents would not be issued before the applicant and applicant child depart Australia.

…

33.    The applicant has additionally claimed that the applicant child will be refused access to education due to having been born in Australia and not possessing Vietnamese identity documents. As a consequence of this she is likely to become a street child. I have concluded that steps are in place to register her birth in Vietnam and provide relevant documents. In relation to whether she will be denied education due to having been born overseas, country information indicates that education in Vietnam is compulsory, theoretically tuition-free (fees exist for textbooks, uniforms etc.) and universal through age 14. There is nothing before me to support the applicant’s contention and I reject it.

35.     I am not satisfied that the factors as discussed above cumulatively raise the applicant’s or applicant child’s profile to a level such that either of them would face a real chance of serious harm on return to Vietnam.

(emphasis added)

22    The IAA concluded that the applicants did not have a well-founded fear of persecution, and were not owed protection obligations as refugees under the Migration Act. The decision to refuse the Safe Haven Enterprise (Class XE) visas was affirmed.

Decision of the Primary Judge

23    On 29 December 2017 the applicants commenced proceedings in the Federal Circuit Court. In that proceeding, the applicants relied on two grounds of review. Those grounds were as follows:

1.    The Second Respondent (“the Authority”) failed to exercise its jurisdiction to “review” (within the meaning of subs. 473CC of the Migration Act 1958 (Cth) (“the Act”)) the correct “fast track decision”, namely the decision to refuse the first two applicants (AZAFF and AZAFG) a protection visa under s. 91W of the Act, but rather reviewed a purported exercise of power under s. 65, and thereby committed jurisdictional error.

2.    The Authority failed to consider the exercise of the discretionary power in subs. 473DC(3) of the Act to seek new information from the applicants in relation to a letter dated 17 October 2017 from Australian Border Force to the Embassy of Vietnam, and this failure was, in the circumstances, legally unreasonable.

24    On 3 June 2020 the primary Judge dismissed the application for judicial review.

25    In relation to the first ground of review the primary Judge did not accept that the Authority was required to review the decision under s 91W of the Migration Act. Rather, the relevant source of power in the fast track review process under Part 7AA was s 65 of the Migration Act. The primary Judge observed:

8.    I am fortified in that view by the reference in section 473DC, which is part of Part 7AA, which refers to a decision under section 65. There is no reference in Part 7AA to section 91W. Mr Ower did not refer to any authority for his submission on that point and I reject this ground.

26    In relation to the second ground of review, the primary Judge noted the submissions of the applicant that the IAA had considered the only “gateway” for the consideration of new information was s 473DD of the Migration Act, which was incorrect because:

    Section 473CB was an additional “gateway” by way of referral of material by the Secretary of the Department to the IAA;

    Section 473DC was a further possible gateway; and

    If the IAA had properly recognised that these sections were additional gateways for the consideration of new information, this would necessarily have led to the IAA exercising the discretion referred to in s 473DC (3).

27    The primary Judge observed:

12.    I accept [the Minister’s] submissions that section 473DD is the only “gateway” for the consideration of new information in Part 7AA and in the case of new information given other than by the referred applicant only subsection 473DD(a) needs to be satisfied, that is “exceptional circumstances”. I do not accept that the use of the phrase indicates error by the Authority or indeed a failure to consider the exercise of a supposed discretion under 473DC. That being the case there is no evidence one way or another about whether the Authority considered the exercise of the discretion, and the argument at that point must fall foul of the High Court decision in BVD17.

13.    Further, even if there was an error of the kind asserted by Mr Ower, I am not satisfied that any such error was material. The applicants were invited to make submissions about the letter to the Vietnamese Embassy by the Department or Border Force in the letter of 22 November 2017. It was not suggested that anything further could have been said and the applicants in my view have not been deprived of the possibility of a successful outcome, or rather, if the onus rests on the applicant, the applicants have not satisfied me that they have been deprived of the possibility of a successful outcome by any such error. Therefore ground 2 is not made out and the application is dismissed.

APPeal to this court

28    Following the grant of pro bono legal assistance the applicants filed the amended application for an extension of time and sought leave to rely on the amended draft notice of appeal currently before the Court.

29    In relation to the application for an extension of time, the applicants relied on an earlier affidavit filed by the first applicant on 5 February 2021 in which she deposed as follows (as written):

4.    I understand that the period to appeal has expired.

5.    We have been unable to obtain a barrister to act on a pro bono basis to help us with our appeal.

6.    We have been unable to raise any money to pay for a barrister.

7.    We do not have work rights and do not have a source of income that would cover the legal costs.

8.    If an extension of time is not granted, we will not be able to seek review of the decision and we will be deported.

9.    If we are to be deported, by sister’s child is approximately three (3) months and my daughter is approximately five (5) years of age. My daughter has just started reception. We would be prejudiced should this application not be accepted.

10.    There is no prejudice to the Minister in granting an application for an extension of time.

30    In her affidavit filed on 6 October 2021 the solicitor for the applicants, Ms Follett, deposed that the original draft notice of appeal was not filed within time for the reasons given by the first applicant in her affidavit, and further that the amended notice of appeal was not filed within the time prescribed by the Federal Court Rules 2011 (Cth) (Federal Court Rules) because the lawyers only became aware of the matter on 20 September 2021.

31    In relation to the substantive grounds of appeal as set out in the amended notice of appeal, at the hearing the applicants did not press proposed grounds 1 and 2(a). They relied on the following grounds:

2.     The learned Primary Judge erred in not holding that the Authority committed an error of jurisdiction in that it failed to consider the exercise of the discretionary power in subs. 473DC(3) of the Act to seek new information from the applicants:

        …

(b)     as to the general welfare of the applicant child if she were returned to Vietnam, and in particular whether free education would be available to her as an Australian born child of a failed refugee applicant mother

3.     The learned Primary Judge erred in not holding that the Authority committed an error of jurisdiction in that it failed to communicate to the first applicant (mother of the child applicant) that the Authority would not consider giving a primacy to the best interests of the applicant child, with a view to giving opportunity to the first applicant to put on information to persuade the Authority to give such primacy

4.     The learned Primary Judge erred in not holding that the Authority committed an error of jurisdiction in that it failed to consider whether the “new information” referred to in [7] and [8] of the Authority’s Decision and Reasons was “credible” personal information for the purposes of subs. 473DD(b)(ii) that would permit of it being acceptable as new information to be taken into account, in that it was capable of being accepted by the Authority as truthful, or accurate or genuine.

(underlining in original)

SUBMISSIONS OF THE PARTIES

32    In summary the applicants submitted as follows:

    Their grounds of appeal have merit, and concern important issues of law;

    There is no perceptible prejudice to the Minister if the Court extended time to file the amended notice of appeal, compared with the great prejudice to the applicants if the extension of time was refused;

    They sought to rely on new grounds of appeal raising issues not before the primary Judge, and to that extent rely on principles set out in the judgment of Derrington J in Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125, in particular:

•    They have sought an explanation from Counsel who appeared for them before the primary Judge as to his failure to raise arguments as to the position of the applicant’s daughter and the credibility of new information at the point of reception;

•    No prejudice arises to the Minister if new grounds are raised, compared with the great prejudice to the applicants if the Court refuses leave to rely on new grounds;

•    There is no question of additional evidence that might be brought to bear in the court below; and

•    The new grounds have merit and raise issues of great importance.

    In relation to ground 2(b):

•    Where a child is involved in decisions made by the Executive the decision-maker must have in mind the best interests of the child as having an at least equal primacy in the decision-making: cl 3 (1) UN Convention on the Rights of the Child (CROC), Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273;

•    If the decision-maker intends not to take into account the CROC it is required to accord natural justice to the subject of the decision, including giving notice of the intention to depart from the terms of the CROC and allow the subject of the decision to present a case against such departure;

•    The IAA was making an assessment under s 36 of the Migration Act and should have been alert to the issues arising for the child as a member of a social group (namely children born in Australia of Vietnamese parents);

•    The delegate was remiss in not indicating to the applicants that she did not give primacy to the best interests of the third applicant;

•    The IAA was remiss in not utilising the powers available under s 473DC, which provides a capacity for the IAA to get new information from an applicant. As a matter of law the IAA behaves unreasonably where it does not have information on a relevant matter but the applicant does;

•    The “informational gap” in the present case is the lack of knowledge of the fate of members of the particular social group of which the third applicant is a member by reason of her Australian birth, in relation to the degree of discrimination against members of such a group in the fields of education, health and more generally. Although the first applicant apparently claimed that the child would be refused access to education which country information indicated was compulsory, there was no information provided in the DFAT Report on Vietnam concerning the fate of those in the third applicant’s particular social group;

•    It was legally unreasonable for the IAA not to use its powers under s473DC to obtain information as to the best interests of the third applicant as a member of a particular social group in the event of removal to Vietnam.

    Ground 3 followed ground 2(b), to the extent that the IAA committed reviewable error in not taking into account as a primary consideration the best interests of the third applicant, having failed to request further information on the third applicant’s prospects as a member of a particular social group;

    In relation to ground 4:

•    The IAA was confronted with two pieces of “new information” which it refused to admit on the basis that there was nothing in the accompanying documentation to indicate why the new information “comprises credible personal information”. This new information was:

i.    She found someone on Facebook who lives in Quang Binh province and asked them to contact the Catholic Church to locate her baptismal records. They tried but the church that the applicant had attended did not hold records;

ii.    The Department had found her story of being a street child implausible and concluded that it would have been highly unlikely that she could travel from Quang Binh to Saigon and then to Vung Tau. She didn’t do this quickly. When she caught the bus in Quang Binh and asked the driver if he could take them for free, they didn’t go straight to Saigon but to the next town where she would find work in restaurants or pick up cans to sell. She was resourceful and gradually moved from one town to another ending in Saigon. They did the same when moving to Vung Tau where she boarded the boat.

•    As Bromberg J explained in CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 at [41]:

…all that the “credible” element of s 473DD(b)(ii) requires is the Authority’s satisfaction that the “new information” is information which is open to be or capable of being accepted by the Authority as truthful (or accurate or genuine). It is only at the deliberative stage of its review that the Authority will be required to determine whether or not the “new information” is true….

•    The IAA failed to adopt this two-stage approach to the admission of personal information. Instead, the IAA simply placed the burden on the informant to satisfy the IAA as to credibility. In the absence of inherent incredibility the new information should have been allowed in to take a place in the deliberative stage of the IAA’s decision-making, where the IAA could determine the truth or not of the information.

33    In summary, the Minister submitted:

    The application to extend time to file a notice of appeal should be refused in circumstances where:

•    The applicants were legally represented before the primary Judge;

•    The application for extension of time was filed on 5 February 2021, following a delay of 218 days. This delay is very substantial;

•    The evidence adduced by the applicants falls well short of demonstrating that it is in the interests of the administration of justice for time to be extended;

•    The applicants’ inability to obtain legal advice or representation in inadequate explanation for the delay; and

•    There is a relevant public interest in the prompt disposition of administrative law matters.

    The Court should refuse leave to the applicants to rely on the draft amended notice of appeal, including grounds 2(b), 3 and 4 because :

•    The applicants were legally represented before primary Judge;

•    No evidence was adduced explaining why the proposed amended grounds of appeal were not relied on below. A change of representation on appeal does not constitute adequate explanation for seeking to rely on new grounds;

•    If leave is granted the matter would be essentially re-tried, but without the possibility of an appeal to the Full Court.

    Specifically in relation to ground 2(b):

•    Ground 2(b) essentially required the IAA to exercise s 473DC(3) in order to construct, and then substantiate, a “particular social group” claim or claims by the third applicant;

•    In relation to the applicants’ claim concerning the CROC, any legitimate expectation that a decision-maker would act in conformity with the CROC arose only in a discretionary decision-making context. A decision whether to grant a protection visa is not a discretionary decision;

•    In Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 304 Gaudron J said that it was arguable that Australian citizenship carried with it a common law right on the part of children and their parents to have a child’s best interests taken into account, at least as a primary consideration, in all discretionary decisions. The third applicant child in this case was not an Australian citizen, and nor were her parents;

•    The reference by the applicants to the existence of an “informational gap” in the review materials was misconceived. Particular claims were made on behalf of the third applicant, however the IAA acknowledged and considered those claims, and rejected them; and

•    This was not a case in which there was a new dispositive issue before the IAA in relation to which it needed, but did not have, information from the applicants.

    Ground 3 similarly fails.

    In relation to ground 4, the IAA did not err in its understanding of the word “credible” in s 473DD (b)(ii) or its application of this requirement.

Consideration

34    The decision of the primary Judge was delivered on 3 June 2020. Rule 36.03(a) of the Federal Court Rules required the applicants to file a notice of appeal within 28 days of the date of that decision. The time in which to appeal expired on 1 July 2020. On 5 February 2021 the applicants filed their application for an extension of time and draft notice of appeal (and subsequent amended application and notice of appeal on 6 October 2021) pursuant to r 36.05 of the Federal Court Rules. They were clearly significantly out of time to file their appeal against the primary decision, being 218 days late.

35    The grant of an extension of time will not be granted unless it is in the interests of justice: Singh v Minister for Immigration and Border Protection [2017] FCAFC 195 at [20]. Relevant considerations were outlined by the Full Court in GOK18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 169 at [23]. Those considerations are, in summary:

(1)    Whether there is an adequate explanation for delay;

(2)    The relative prejudice the parties may suffer if the application is allowed or disallowed; and

(3)    The merits of the proposed grounds of appeal.

36    In this case we also note that the applicants rely on arguments not raised before the primary Judge. Leave to rely on a notice of appeal including grounds not brought before the primary Judge should only be granted by the Court in circumstances where it is in the interests of justice to do so: see Doves v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 134 at [21]; O’Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310 at [319]; VUAX v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 238 FCR 588; [2004] FCAFC 158 at [46]; Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125 at [13].

37    In this case it is appropriate that consideration of the application for an extension, and leave to rely on the amended draft notice of appeal, be considered together. We note the similar approach adopted by the Full Court in GOK18 at [23].

Explanation for delay in filing notice of appeal, and failure to raise new grounds in earlier proceedings

Failure to file notice of appeal in time

38    In explaining the delay in filing a notice of appeal the applicants relied on an affidavit of the first applicant dated 5 February 2021, and an affidavit of the applicants’ solicitor Ms Follett filed on 6 October 2021. We note again that the applicants’ case is that:

    The applicants were unable to afford legal representation, and only obtained pro bono legal assistance in September 2021;

    If an extension of time in which to appeal was not granted, the applicants would be deported and would face prejudice in circumstances where the third applicant was 5 years of age, and the second applicant had a 3 months old child; and

    There was no prejudice to the Minister if the application for an extension of time was granted.

39    At the hearing, Counsel for the applicants also submitted that it was not only in the personal interests of the applicants for an extension of time to be granted, but also in the interests of the administration of justice and how “Australia addresses the best interests of a child” who was “in the care and custody of the nation” (transcript p 8 ll 29-33).

40    In considering an application to extend time for the lodgement of an appeal, both the length of the delay and any explanation offered are relevant: DGPZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 107 at [19]; BVG17 v BVH17 [2019] FCAFC 17 at [34].

41    The evidence placed before the Court has done little to explain the inordinate length of delay in this case. The heart of the applicants’ evidence is that the applicants were unable to obtain or afford legal assistance in relation to the appeal.

42    While we accept that the applicants may have limited availability to gain employment (and an associated steady stream of income sufficient to maintain private legal representation), we also note that no evidence was put as to the applicants’ finances referable to the possibility of acquiring legal representation (particularly in light of evidence discussed by the delegate of substantial sums of money apparently transferred by the first applicant to persons in Vietnam between 2013 and 2017).

43    Further, the applicants did not provide any explanation as to their attempts to raise funds, or any steps taken to retain Counsel, in circumstances where the applicants were represented by solicitors and Counsel before the primary Judge.

44    This Court has previously held that a delay caused by an applicant’s attempts to gain legal representation can be a relevant factor where the applicant has provided evidence to that effect, and that delay is not inordinate: see for example Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120 at [45]. That is not the case currently before the Court.

45    An inability to obtain legal representation is not, of itself, adequate explanation for delay: GOK18 at [25]; DKT16 v Minister for Immigration and Border Protection [2019] FCAFC 208 at [31]; Vu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 90; 276 FCR 516 at [41]-[44]; BLX16 v Minister for Immigration and Border Protection [2019] FCAFC 176 at [31].

46    In our view no satisfactory explanation has been given for the applicants’ lengthy delay in filing a notice of appeal from the decision of the primary Judge.

Explanation for new grounds of appeal

47    An appeal to the Full Court of the Federal Court is not an opportunity for appellants to raise an issue for the first time in the appellate jurisdiction, without an exceptional reason: see VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588; [2004] FCAFC 158 at [46]-[48]. We note the observations of Bromwich J in Han v Minister for Home Affairs [2019] FCA 331 at [10]:

[10]     Appeals, even appeals by way of rehearing such as this appeal, are not to be relegated to the role of only providing an opportunity to conduct a second trial upon a different basis, the first trial having failed. Longstanding and much-cited authority of the High Court makes this abundantly clear, supported by related considerations raised by numerous cases in the Full Court of this Court, of which only few will be cited.

[11]    In University of Wollongong v Metwally (1985) 60 ALR 68 (also reported as University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481) it was stated by all six justices of the High Court sitting that (60 ALR at 71; 59 ALJR at 483):

It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.

[12]    The above passage from Metwally was quoted in Coulton v Holcombe (1986) 162 CLR 1 at 8. In Coulton v Holcombe, the following (again, much-cited) observations were made by four justices of the High Court as to the application of the principle to appeals by way of rehearing (at 7):

To say that an appeal is by way of rehearing does not mean that the issues and the evidence to be considered are at large. It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish. The powers of an appellate court with respect to amendment are ordinarily to be exercised within the general framework of the issues so determined and not otherwise. In a case where, had the issue been raised in the court below, evidence could have been given which by any possibility could have prevented the point from succeeding, this Court has firmly maintained the principle that the point cannot be taken afterwards …

[13]     In VUAX, the following pertinent observation was made (at [46]):

In our view, the application for leave to rely upon the sole ground of appeal now raised should be refused. Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so: O’Brien v Komesaroff (1982) 150 CLR 310; H v Minister for Immigration & Multicultural Affairs; and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [20]–[24] and [38]. In relation to consideration (2) I note that the applicant has been unable to sufficiently explain why the new grounds of appeal were not raised before the primary Judge. The fact that the applicants were represented by Counsel before the primary Judge does not weigh in their favour; see Tohi at [117]; Raibevu v Minister for Home Affairs [2020] FCAFC 35 at [95]

48    The applicants’ rationale for not raising the new grounds in this case before the primary Judge, in circumstances where the applicants had legal representation in the Court below, remains unclear. Relevantly, Counsel for the applicant submitted at the hearing:

As to the present failure to explain the proposed grounds not being run below, I can only say that the appellants have requested an affidavit of explanation from counsel below. There has been no response from counsel. We can only say there are two possibilities open: A, he did not think of these grounds or B, he thought of them but decided not to employ them. And in either case, the appellants submit that the interests of justice in this case override any argument resting on the failure below or of explanation. We do understand that the failure to provide explanation – which is a point taken up by a number of judges in Full Federal Court decisions – is regrettable, but it was not within our power to force the issue. So I can only say that there are, really, only two possibilities and we submit that the merits – which we hope will gain favour with the court – the merits are sufficient, at least on a preliminary overview, to permit of expansion into a full appeal…

(transcript p 9 18-29)

49    No evidence as to the applicant’s attempts to contact their previous solicitors and Counsel appears to have been adduced by the applicants. In relation to the applicants’ submission that they had sought an explanation from their previous Counsel of why grounds set out in the amended draft notice of appeal were not advanced below, we note that, at least at the time of the hearing of the appeal, there was no evidence of any such explanation. Further, the details of how such explanation had been sought were vague – we note for example the absence of relevant correspondence evidencing such request for explanation.

50    The absence of an explanation as to why grounds were not raised in the Court below is a significant matter: see Raibevu v Minister for Home Affairs at [95]; AAD16 v Minister for Immigration and Boarder Protection [2018] FCA 1433 at [26]-[27]; see also Tohi at [13]. As a general proposition, the making of a forensic decision by the legal representation in the proceedings below not to raise a particular argument weighs strongly against a grant of leave: see Tohi at [13]; DKT16 v Minister for Immigration and Border Protection [2019] FCAFC 208 at [31]; Singh v Minister for Immigration and Border Protection (2018) 261 FCR 556, 574 [61].

51    This is not a case where a self-represented litigant did not fully appreciate the extent of matters which may be raised before the primary Judge in relation to an application for review. Rather, in this case, the applicants were legally represented before his Honour: contrast for example Leota at [45]-[46].

52    As the Minister also correctly submits, the fact that the applicants have new legal representation on appeal is also not an adequate explanation in and of itself: Say v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 84 at [5].

53    In our view the applicants have not satisfactorily explained why they seek to rely on grounds of appeal concerning matters not raised before the primary Judge.

54    It follows that the absence of adequate explanation weighs against both applications.

Prejudice

55    On balance we are satisfied that the prejudice the applicants would experience should their application for an extension of time be refused exceeds that of the Minister. However we do not accept that the Minister would suffer no prejudice, including by reference to the Minister’s entitlement to swift commencement of appeals against the Minister for decisions in his or her favour, and the denial of the right to appeal in circumstances where an appeal is only available by a grant of special leave: see Leota at [44]; AAM15 v Minister for Immigration ad Border Protection [2015] FCA 804; (2015) 231 FCR 452 at [14].

56    Similarly, while the applicants stand to face greater prejudice than the Minister if leave is refused in this matter, there is substance to the submission that there is a public interest in the finality of litigation: Say v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 84 at [5]. However, this is not a matter in which procedural fairness to the Minister would work strongly against the grant of leave, where there was no relevant evidence that might have been brought by the applicants in the Court below; Tohi at [13]; see also Han at [20]; MBJY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 11 at [90]; Murad v Assistance Minister for Immigration and Border Protection [2017] FCAFC 73 at [20].

57    It follows that, on balance, the prejudice to the applicants weighs in favour of the applicants in respect of both applications.

The merits of the proposed grounds of appeal

58    In relation to the merits of proposed grounds of appeal, it is well established that this Court, in considering an application for extension of time and application for leave to rely on new grounds of appeal, need only take an impressionistic approach: GOK18 at [32]; NWQR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 30 at [31]; Singh v Minister for Immigration and Border Protection [2017] FCAFC 195 at [21].

59    The Court is not to descend into a complete or full determination of the issues: GOK18 at [32].

60    Turning now to the grounds in the amended draft notice of appeal on which the applicants seek to rely, we find as follows.

Grounds 2(b) and 3

61    In ground 2(b) the applicants claim that the primary Judge erred by not finding that the IAA committed an error of jurisdiction, by failing to consider the exercise of the discretionary power in s 473DC (3) of the Migration Act. The applicants say that the discretion that ought to have been exercised by the IAA was the seeking of new information by the IAA as to the general welfare of the third applicant if she were sent to Vietnam, including whether the third applicant as a “child of a failed refugee applicant mother” would have free education available to her upon arrival. The applicants rely on the High Court decision of Minister for Immigration and Ethnic Affairs v Teoh (1995) 39 ALD 206.

62    Ground 3 complains that the primary Judge erred by failing to determine that the IAA committed an error of jurisdiction. That alleged error was that the IAA did not communicate to the applicant that it “would not consider giving a primacy to the best interests of the applicant child” and therefore not providing the applicant (as the litigation guardian and mother of the third applicant) the opportunity to put information to the IAA to persuade it in its determination to give such primacy as a matter of natural justice. The applicants particularly rely on ABT17 v Minister for Immigration and Border Protection (2020) 383 ALR 407.

63    Grounds 2(b) and 3 overlap, and will be considered together.

64    Relevantly, s 473DC of the Migration Act provides:

Getting new information

(1)    Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any document 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 required 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.

65    In our view grounds 2(b) and 3 are without merit, for the following reasons.

66    First, the applicants contend that third applicant’s best interests were not taken properly into account by the IAA, but rather that they were “bundled up with that of mother”. However, looking at the decision of the IAA with an eye not attuned to the perception of error, it is plain that the IAA did consider the claims put forward by the third applicant. In particular, the IAA considered the circumstances of the third applicant as a child, as a child born overseas to Vietnamese parents, and the extent to which the third applicant as such a child could be the subject of discrimination and/or disadvantage should she relocate to Vietnam. On the basis of the material before it the IAA was satisfied that the third applicant would not be the subject of discrimination and/or disadvantage for reasons hypothesised by the applicants. The IAA rejected the submission of the applicants that the third applicant would “end up on the streets” because she would be unable to attend school as a child born overseas. That was a finding of fact by the IAA, within the scope of the review process.

67    Second, to the extent that Teoh required an invitation to be given to an applicant to make representations concerning the best interests of a child, such principles as discussed in Teoh do not conform with the legislative framework subsequently enacted in Part 7AA of the Migration Act. In particular, s 473DA(1) provides that Part 7AA Div 3 of the Migration Act, together with ss 473GA and 473GB, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the IAA. There is nothing in Teoh which compels the IAA to engage in the process of invitation and investigation contended by the applicants, particularly in respect of a substantially unarticulated claim concerning the third applicant.

68    To this extent there is no room for a contention that the IAA acted unreasonably in the exercise of its powers to determine the applicants’ claims.

69    Third, we agree with the Minister that there is no substance, even at an impressionistic level, to the proposition inherent in grounds 2(b) and 3 that the decision of the IAA was discretionary. As Griffiths J explained in SZRLY v Minister for Immigration and Citizenship [2012] FCA 1459 at [29]:

Secondly, as the Minister pointed out, there is a long line of authority to the effect that the principle in Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 291 per Mason CJ and Deane J (to the effect that there is a legitimate expectation that administrative decision-makers will act in conformity with the Convention), has no application to a decision whether or not to grant a protection visa, because such a decision is not discretionary (see, for example, SZBPQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 568 at [17]–[19] per Hely J (an application for special leave to appeal was refused: SZBPQ by his next friend v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA Trans 249); Minister for Immigration and Multicultural Affairs v Anthonypillai (2001) 106 FCR 426 at [36] and M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 146 at [53] per Goldberg, Weinberg and Kenny JJ).

(emphasis added)

70    We also note the following observations of the Full Court in Singh v Minister for Home Affairs [2020] FCAFC 7 at [62]:

The appellant’s submissions obfuscated how the interests of a child were to be a primary consideration in reaching the specified state of satisfaction. The insurmountable hurdle for the appellant is that it is now well accepted that un-enacted treaty obligations do not impose obligations on decision-makers to take into account international obligations arising thereunder. This was the considered conclusion in Kaur which concerned the formation of a state of mind on which a power was conditioned. It did not concern the exercise of a discretion. In SZRLY v Minister for Immigration and Citizenship [2012] FCA 1459 at [29], Griffith J referred to the existence of a long line of authority to the effect that the principle in Teoh has no application to the exercise of a non-discretionary power. Similarly, here the process engaged in by the Tribunal was the formation of a state of satisfaction, a task not involving an exercise of discretion.

71    Finally in relation to this point we note the observation of Hely J in SZBPQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 568, in relation to the interaction of CROC and the findings in Teoh in the context of a protection application. Although his Honour was considering that interaction in relation to a decision of the-then Refugee Review Tribunal, the following comments remain apt:

17    However, the appellant’s reliance upon the CROC, and Teoh’s case, is misplaced. That is because the RRT’s task was to determine whether it was satisfied that the appellant was a person to whom Australia had ‘protection obligations’ under the Refugees Convention as amended by the Refugees Protocol: s 36(2) of the Act. If the RRT was so satisfied, then it was required to grant the visa: s 65(1)(a) of the Act. If the RRT was not so satisfied, then it was required to refuse to grant the visa: s 65(1)(b) of the Act. No element of discretion is involved in which the interests of the appellant as a child could be brought to bear as a ‘primary consideration’. Hence, there was no scope for the application of principles derived from the reasoning of the majority in Teoh’s case, and no error on the part of the RRT in failing to take into account the provisions of the CROC in coming to its decision.

18     The RRT was bound to apply the provisions of the Act (and in particular s 91R) and the Refugees Convention, rather than the provisions of the CROC. The gravamen of the appellant’s complaint under ground 1 is that the RRT failed to give effect to what are said to be rights accruing to the child under the CROC. It was no part of the RRT’s function to do so.

19     Some support for this conclusion flows from the judgment of Madgwick J in Tuitavake v Minister for Immigration & Multicultural Affairs [1999] FCA 1160. In that case his Honour rejected a contention that Teoh’s case and Australia’s obligations under the CROC mandated a reading of the relevant Migration Regulations such that they would be inapplicable to an applicant where their application would be adverse to the best interests of her children.

(emphasis added)

72    To the extent that the applicants have sought to make an argument referable to Teoh, the alleged primacy of considerations concerning children, and CROC in the context of a protection application under the Migration Act, it appears that this is well-trodden ground. This Court has consistently found that the argument is misconceived.

73    None of the cases on which the applicants rely, including the Full Court’s decision in Vaitaiki v Minister for Immigration & Ethnic Affairs [1998] FCA 5 (deportation of non-citizen convicted of offences), DXQ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1184 (cancellation of visa), Poroa v Minister for Immigration and Border Protection [2017] FCA 826 (cancellation of visa), Nweke v Minister for Immigration and Citizenship [2012] FCA 266 (cancellation of visa), and Promsopa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1480 (cancellation of visa), involved applications for protection visas such as those currently the subject of proceedings before this Court.

74    Fourth, at an impressionist level there is no “informational gap” as claimed by the applicants such that it was legally unreasonable for the IAA not to seek new information from the applicants. To the extent that the applicants rely on the decision of the High Court in ABT17 in support of their claim of “informational gap”, they plainly misapply relevant principles.

75    In ABT17 the High Court found that there had been an informational gap where the delegate had had the benefit of an interview in person with the applicant, but the IAA was only provided with an audio recording of that interview. In that case there was an informational gap in the form of the applicant’s demeanour, on which the IAA made findings different to those of the delegate. As Kiefel CJ, Bell, Gageler and Keane JJ observed:

13.    However, the potential for a record of an interview conducted in accordance with the Code of Procedure to take a variety of forms creates potential for an informational gap to arise in the review material where an interview with the referred applicant has been conducted by the delegate in person and has been audio recorded but not video recorded. Provision of the audio recording as part of the review material will then not put the Authority in the position of having and being able to examine for itself the totality of the information available to the delegate and required by the Code of Procedure to be considered by the delegate when making the referred decision. Missing from the review material will be a visual impression of how the referred applicant appeared during the interview − his or her demeanour.

14.    An informational gap of that nature has potential to impact on the Authority's assessment of the credibility of the account given by the referred applicant during the audio recorded interview and in turn has potential to impact on the Authority's assessment of the referred applicant's overall credibility. “Impressions formed by a decision-maker from the demeanour of an interviewee may be an important aspect of the information available to the decision-maker.”[24] That has “long been recognised”[25] and continues to be appreciated despite awareness on the part of sophisticated decision-makers that “an ounce of intrinsic merit or demerit” measured by reference to objectively established facts and the apparent logic of events “is worth pounds of demeanour”.

76    The outcome of ABT17 was that the IAA was taken to act unreasonably where it did not invite the applicant for an interview to review their demeanour before rejecting the applicant’s account, in circumstances where the delegate made original findings based on the demeanour contrary to that subsequently made by the IAA.

77    In this case, there is no such informational gap in the review materials before the IAA as was in ABT17.

78    As the Minister correctly submitted in this case:

… Particular claims were made on behalf of the third applicant. The Authority acknowledged and considered those claims… Specifically, it did not accept that the third applicant would not acquire Vietnamese identity documents, or be denied education.

Legal reasonableness did not compel the Authority to exercise its s473DC (3) power so as to embark on an exploratory exercise as to the existence of some possible further claim(s) and/or evidence in relation to the third applicant’s circumstances. Ultimately it was the applicants’ responsibility to present the claims and evidence they relied on in support of their application : s5AAA; SZLPH v Minister for Immigration and Border Protection (2018) 266 FCR 105 at 117 [53].

(emphasis added)

79    Plainly the IAA considered the case put before it in relation to the third applicant, and made responsive findings to those claims and submissions of the applicants within the confines of the fast track review process.

80    Grounds 2(b) and 3 are have no merit.

Ground 4

81    The remaining ground of appeal contends that the primary Judge erred by not finding that the IAA committed an error of jurisdiction, being a failure to consider new information set out in the applicants’ submissions as credible personal information within the meaning of s 473DD(b)(ii) of the Migration Act.

82    Relevantly, s 473DD 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)    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.

83    The new information concerned the identity of the first and second applicants and their attempts to comply with the s 91W direction given by the delegate (specifically, relating to baptismal records), and, information regarding the journey of the first and second applicants across Vietnam. The IAA ultimately had no regard to this new information.

84    The applicants relied on the construction of s 473DD of the Migration Act by Bromberg J in CSR16 v Minister for Immigration and Border Protection [2018] FCA 474. This construction was upheld by the Full Court in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020] FCAFC 159 (at [62]).

85    As Mortimer and Jackson JJ observed in BTW17:

77.    ...the terms of s 473DD(b)(ii) operate as a filter, which the Authority is required to apply to ‘new information’ proposed to be presented by a visa applicant. The subsection sets a threshold, requiring a visa applicant to satisfy the Authority the new information has that character, or, if it does not have that character, that it was not and could not have been provided to the Minister or her or his delegate prior to the s 65 decision (s 473DD(b)(i)).

86    However, as their Honours continued to point out at [77]:

… In either case the Authority must still be satisfied there are ‘exceptional circumstances’ justifying including the new information in the material to be considered by the Authority on its review

87    In Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 at [29]-[31] Gageler, Keane and Nettle JJ explained:

29.    The precondition set out in s 473DD(a) must always be met before the Authority can consider any new information. Whatever the source of new information, the Authority needs always to be satisfied that there are “exceptional circumstances” to justify considering it.

30.    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”.

31.    Cumulatively upon the precondition set out in s 473DD(a) that the Authority must be satisfied that there are exceptional circumstances to justify considering new information, s 473DD(b) sets out a further precondition that must also be met before the Authority can consider new information that is given to it, or proposed to be given to it, by the referred applicant. In respect of new information within that category, the Authority must be satisfied of one or other of the circumstances set out in s 473DD(b)(i) and (ii).

    (footnotes omitted)

88    Turning now to the present case, it cannot logically be said that the IAA did not properly approach the task of applying s 473DD. Under s473DD the IAA must be satisfied of both subsections (a) and (b). As was pointed out in Plaintiff M174/2016, if the IAA is not satisfied that there are exceptional circumstances to justify considering new information (for the purposes of s 473DD (a)), it does not examine whether that new information is credible.

89    In relation to the new information set out in Sr Symonds’ submissions, the IAA examined s 473DD(b) first, however in the same paragraph of its decision as its consideration of s 473DD(a). As the IAA explained:

8.    … There is nothing in the document of 9 November 2017 [being the submissions of Sr Symonds] to indicate why the new information could not have been provided earlier or why it comprises credible personal information. The applicants have not satisfied me that either ss473DD(b)(i) or 473DD(b)(ii) are met. I am also not satisfied that s473DD(a) is met and have not had regard to these statements.

90    Insofar as appears on the material before this Court, the applicants did not run a case before the IAA that there were exceptional circumstances to justify the IAA considering the new information on which they sought to rely. The IAA was not satisfied that there were exceptional circumstances within the meaning of s 473DD(a), and accordingly the IAA was prohibited by s 473DD from considering that alleged “new information”.

91    Second, it is difficult to see how the two pieces of new information on which the applicants sought to rely were actually “new information” relevant to a fast track reviewable decision. The first piece of information, relating to the first applicant’s baptismal records, concerned material sought to be adduced by the first applicant in response to the Delegate’s s 91W request. As s 91W plainly provides:

…

(2)    The Minister must refuse to grant the protection visa to the applicant if:

(a)    the applicant has been given a request under subsection (1); and

(b)    the applicant refuses or fails to comply with the request, or produces a bogus document in response to the request; and

(c)    the applicant does not have a reasonable explanation for refusing or failing to comply with the request, or for producing the bogus document; and

(d)    when the request was made, the applicant was given a warning, either orally or in writing, that the Minister cannot grant the protection visa to the applicant if the applicant:

(i)    refuses or fails to comply with the request; or

(ii)    produces a bogus document in response to the request.

92    The alleged inability of the first applicant to locate her baptismal records, and accordingly substantiate her identity for the purposes of compliance with s 91W and the request made by the delegate for such information, was ultimately irrelevant. The delegate proceeded to make findings concerning the first applicant’s identity and protection claims on the information available to the delegate. In turn, the IAA noted the finding of the delegate, and continued to state that it was unnecessary for it to consider whether s 91W applied in the case before it.

93    Further, the applicants’ contentions concerning their identity as “street children” and their journey across Vietnam were found by the IAA to be implausible. We are unable to identify how what appeared to be an unparticularised or supported statement of the applicants concerning their journey across Vietnam, contained in submissions of their migration agent, could be described as credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims. Even if that information concerning the applicants’ travels were credible, there was apparently nothing before the IAA to demonstrate why that information “was not previously known”. This issue was directly addressed by the IAA at [8] of its reasons.

94    The manner in which the “new information” was put to the IAA, and the nature of that information, were such that there was no occasion for the IAA to consider whether it was credible personal information within the meaning of s 473DD(b)(ii) of the Migration Act.

95    No error is apparent in the reasons of the IAA.

96    Proposed ground 4 has no merit.

conclusion

97    Generally speaking, the grant of an extension of time and grant of leave to rely on new grounds are founded on an acceptable explanation for delay, an explanation of the reason why the new grounds were not run in the Court below, the nature of any prejudice to the other parties, the merits of the proposed grounds of appeal, and the overall interests of justice. In light of our views expressed above concerning the length and explanation for delays, and the absence of merit in the grounds of appeal on which the applicants seek to rely, we are not persuaded that it is in the interests of justice that we grant either the application for extension of time to file a notice of appeal be granted or leave to rely on the amended draft notice of appeal.

Associate:

Dated:    2 November 2022