FEDERAL COURT OF AUSTRALIA

CVK16 v Minister for Immigration and Border Protection [2017] FCA 1434

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant to pay the costs of the first respondent, to be assessed if not agreed.

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

REASONS FOR JUDGMENT

MCKERRACHER J:

BACKGROUND

1    The appellant is a citizen of Sri Lanka who arrived in Australia at Christmas Island on 14 November 2012. He was taken into immigration detention as an unlawful non-citizen pursuant to s 189(3) of the Migration Act 1958 (Cth). By letter dated 28 August 2015 the Department of Immigration and Border Protection advised the appellant that the Minister had now exercised his power under s 46A(2) of the Migration Act to lift the bar under s 46A(1) to allow him to lodge a valid application for either a Temporary Protection Subclass 785 visa or a Safe Haven Enterprise Subclass 790 visa (Safe Haven visa). The letter invited the appellant to lodge an application for a protection visa of one of these two classes.

2    On 13 October 2015, the appellant made an application for a Safe Haven visa. The application was supported by a written statement by the appellant and various attached documents. On 15 February 2016, the Department invited the appellant to accept assistance through the Primary Application and Information Service (PAIS) to assist him in making his application for protection, and the appellant consented to receiving assistance from PAIS. On 27 May 2016, the Department invited the appellant to attend an interview on 1 June 2016 to discuss his visa application and his protection claims. The appellant attended a protection visa interview on that date.

3    On 15 July 2016, a delegate of the Minister made a decision refusing to grant the appellant a Safe Haven visa, as the delegate of the Minister found that the appellant is not a person in respect of whom Australia has protection obligations pursuant to subs 36(2)(a) or (aa) of the Migration Act. The delegate also was satisfied that the appellant did not meet the definition of ‘excluded fast track review applicant’ in s 5(1) of the Migration Act.

4    In accordance with s 473CA of the Migration Act, on 19 July 2016 the delegate’s decision was automatically referred to the Immigration Assessment Authority to conduct a review of the delegate’s decision.

5    On 19 July 2016, the Authority notified the appellant that the decision to refuse him a Safe Haven visa had been referred to the Authority. The Authority also provided the appellant with information about the Authority and the review process in the English and Tamil languages, and the Practice Direction issued by the President of the Authority on 21 April 2016. The Authority’s procedures were explained to the appellant by his migration agent on 25 July 2016. On 4 August 2016, the appellant provided submissions to the Authority together with a number of supporting documents. The appellant provided further submissions to the Authority on 10 August 2016. On 2 September 2016, the Authority affirmed the delegate’s decision not to grant the appellant a visa.

6    On 29 September 2016, the appellant lodged an application with the Federal Circuit Court of Australia seeking judicial review of the Authority’s decision. The appellant filed an amended application with the Federal Circuit Court on 22 December 2016. The sole ground of application was that the Authority ‘erred in concluding, at [11], that the [appellant’s] claim was ‘new information’ and in doing so constructively failed to exercise its jurisdiction to review the decision.’

7    The application was heard on 8 February 2017, and on 20 March 2017 the Federal Circuit Court ordered that the application as amended be dismissed.

8    The appellant filed a notice of appeal appealing from the whole of the judgment of the Federal Circuit Court given on 20 March 2017. The sole ground of appeal is that:

1.    The learned judge erred in law in finding that a new claim was within the definition of new information, as that term is defined by section 473DC of the Migration Act 1958 (Cth).

THE LEGISLATION

9    Part 7AA was inserted by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth). In addition to this case, some of the key provisions of Pt 7AA have been recently summarised by the Full Court of the Federal Court in AMA16 v Minister for Immigration and Border Protection [2017] FCAFC 136 (at [12]-[27]) and Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 (at [30]). As outlined in s 473BA, Pt 7AA is intended to provide a limited form of review of certain decisions to refuse protection visas to some applicants, including unauthorised maritime arrivals like the appellant, who entered Australia on or after 13 August 2012, but before 1 January 2014, and who had not been taken to a regional processing country. These applicants are described as ‘fast track review applicants’ and decisions to refuse to grant them protection visas are known as ‘fast track reviewable decisions’. Whether they be fast track review applicants or excluded fast track review applicants they are described collectively as ‘fast track applicants’. Under Pt 7AA, fast track reviewable decisions must be referred by the Minister to the Authority, created under Div 8 of Pt 7AA, as soon as reasonably practical after a decision is made. A person cannot make an application for review directly to the Authority. The Authority is required to pursue the objective of providing a mechanism of limited review that is efficient, quick, free of bias and consistent with Div 3 of the Migration Act. It does not hold hearings and is required to review decisions on the papers that are provided to it when decisions are referred to it. In exceptional circumstances the Authority may consider new material and may invite referred applicants to provide or comment on new information at an interview or in writing. The Authority may affirm a referred decision or may remit the decision for reconsideration in accordance with directions.

10    Under s 473BB there are various definitions applicable to Pt 7AA. Under Div 2 of Pt 7AA there is an explanation and specification as to the referral of fast track reviewable decisions to the Authority and the conduct of the review. This includes a stipulation by s 473DA that the Division, together with s 473GA and s 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Authority and, in particular, nothing requires the Authority to give a referred applicant any material that was before the Minister when the Minister made the decision under s 65.

11    Pursuant to s 473DB, the review is to be on the papers, expressly without accepting or requesting new information or interviewing the referred applicant. However, by s 473DC, although subject to Pt 7AA, the Authority may, in relation to a fast track decision, get any documents or information that were not before the Minister when the Minister made the decision under s 65 and that the Authority considers may be relevant. Such documents are described as ‘new information’. The Authority may invite a person orally or in writing to give new information in writing or at an interview whether conducted in person, by phone or any other way. However, it does not have a duty to get, request or accept any information, regardless of whether the Authority is requested to do so by a referred applicant or by any other person or in any circumstances.

12    Importantly, to this case, ss 473DD, 473DE, 473DF deal with ‘new information’ as follows:

473DD    Considering new information in exceptional circumstances

For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

(a)    the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

(b)    the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

(i)    was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

(ii)    is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.

473DE    Certain new information must be given to referred applicant

(1)    The Immigration Assessment Authority must, in relation to a fast track reviewable decision:

(a)    give to the referred applicant particulars of any new information, but only if the new information:

(i)    has been, or is to be, considered by the Authority under section 473DD; and

(ii)    would be the reason, or a part of the reason, for affirming the fast track reviewable decision; and

(b)    explain to the referred applicant why the new information is relevant to the review; and

(c)    invite the referred applicant, orally or in writing, to give comments on the new information:

(i)    in writing; or

(ii)    at an interview, whether conducted in person, by telephone or in any other way.

(2)    The Immigration Assessment Authority may give the particulars mentioned in paragraph (1)(a) in the way that the Authority thinks appropriate in the circumstances.

(3)    Subsection (1) does not apply to new information that:

(a)    is not specifically about the referred applicant and is just about a class of persons of which the referred applicant is a member; or

(b)    is non-disclosable information; or

(c)    is prescribed by regulation for the purposes of this paragraph.

Note:    Under subsection 473DA(2) the Immigration Assessment Authority is not required to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.

473DF    Invitation to give new information or comments in writing or at interview

(1)    This section applies if a referred applicant is:

(a)    invited under section 473DC to give new information in writing or at an interview; or

(b)    invited under section 473DE to give comments on new information in writing or at an interview.

(2)    The information or comments are to be given within a period that is prescribed by regulation and specified in the invitation.

(3)    The Immigration Assessment Authority may determine the manner in which, and the place and time at which, an interview is to be conducted.

(4)    If the referred applicant does not give the new information or comments in accordance with the invitation, the Immigration Assessment Authority may make a decision on the review:

(a)    without taking any further action to get the information or the referred applicant’s comments on the information; or

(b)    without taking any further action to allow or enable the referred applicant to take part in a further interview.

13    The remaining provisions in Pt 7AA are not directly relevant to the sole issue under appeal.

14    Although there is a definition of ‘new information’ in the Migration Act, the thrust of this appeal is the argument that a ‘new claim’ is different from ‘new information’.

Explanatory Memorandum

15    There was a very lengthy Explanatory Memorandum (EM) to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth) which introduced Pt 7AA. The EM was not referred to in evidence and submissions but does perhaps provide a little guidance in resolving the present problem. In the context of discussing what was ‘new information’, the following appears in the EM.

16    The Bill’s purpose was to amend the Migration Act to:

…

•    create a new fast track assessment process and remove access to the Refugee Review Tribunal (RRT) for fast track applicants, who are defined as unauthorised maritime arrivals (UMAs) who entered Australia on or after 13 August 2012 and made a valid application for a protection visa, and other cohorts specified by legislative instrument;

•    require the Minister to refer fast track reviewable decisions to the [Authority] which will conduct a limited merits review on the papers and either affirm the fast track reviewable decision or remit the decision for reconsideration in accordance with prescribed directions or recommendations;

•    create discretionary powers for the [Authority] to get new information and permit the [Authority] to consider new information only in exceptional circumstances;

•    provide the manner in which the [Authority] is to exercise its functions, notify persons of its decisions, give and receive review documents and disclose and publish certain information and enable the Principal Member of the RRT to issue practice directions and guidance decisions to the [Authority];

•    establish the [Authority] within the RRT, and provide that the Principal Member of the RRT is to be responsible for its overall operation and administration and specify delegation powers and employment arrangements to apply to the Senior Reviewer and Reviewers of the [Authority];

…

17    The EM further states that:

A key component of the fast track assessment process is that fast track applicants will not be permitted to seek review from the RRT of their protection visa decisions. The Bill will instead, require the Minister to refer, as soon as reasonably practicable, certain decisions made in respect of fast track review applicants to the [Authority]. The Authority will conduct a limited review of these decisions.

There will also be fast track applicants who in turn, will be excluded fast track review applicants. After an assessment of their protection claims, excluded fast track applicants will be those who have found to have put forward claims that indicate they have been previously been refused protection, already have protection available elsewhere or have unmeritorious claims and as such, their cases suggest prompt resolution of their status should be a priority. Excluded fast track review applicants will not have access to any form of merits review. Excluding these applicants from merits review will stop unmeritorious claims being considered by the [Authority] which can lead to delays in departure and an inefficient and costly use of resources. Decisions made in relation to certain excluded fast track applicants who are identified as vulnerable can be referred to the [Authority] by way of a legislative instrument. All fast track applicants will continue to have access to judicial review.

New Part 7AA establishes the [Authority] and the new limited merits review framework. Under this Part, the Minister will be required to refer fast track reviewable decisions to the [Authority] and provide the [Authority] with review material as soon as reasonably practicable after the primary decision to refuse to grant a protection visa has been made under section 65 of the Migration Act. Similar to the RRT, the [Authority] will have the power to either affirm the decision or remit the decision to the department for reconsideration in accordance with prescribed directions or recommendations.

In carrying out its functions under the Migration Act, the [Authority] is to pursue the objective of providing a mechanism of limited review that is efficient and quick. While there will be discretionary powers for the [Authority] to get new and relevant information and to get information in the most suitable and convenient way from applicants, the [Authority] is under no duty to accept or request new information or interview an applicant.

As a limited review body, other than in exceptional circumstances, the [Authority] is prohibited from considering any new information for the purposes of making a decision, irrespective of whether the [Authority] obtained it through its discretionary powers or an applicant provided it of their own volition. New information will only be considered if the [Authority] is satisfied that there are exceptional circumstances to justify the consideration of that new information. For example, exceptional circumstances may be found where there is evidence of a significant change of conditions in the applicant’s country of origin that means the applicant may now engage Australia’s protection obligations. Where an applicant provides or seeks to provide the [Authority] with new information of their own volition, they would also have to satisfy the [Authority] that the new information could not have been provided to the Minister before the primary decision was made. The limited review mechanism supports the measures in the Migration Amendment (Protection and Other Measures) Bill 2014 which clarify the responsibility of asylum seekers to specify the particulars of their claim, provide sufficient evidence to establish their claim and encourage complete information to be provided upfront. The measures will prevent those asylum seekers who attempt to exploit the merits review process by presenting new claims or evidence to bolster their original unsuccessful claims only after they learn why they were not found to engage Australia’s protection obligations by the Department of Immigration and Border Protection.

…

(emphasis added)

THE APPELLANT’S NEW MATERIAL AND HOW THE AUTHORITY DEALT WITH IT

18    On 19 July 2016, the Authority wrote to the appellant, saying, amongst other things:

The Department ... has provided us with all documents they consider relevant to your case. This includes any material that you provided to the departmental officer before they decided to refuse you a protection visa. The [Authority] will proceed to make a decision on your case on the basis of the information sent to us by the department, unless we decide to consider new information. We can only consider new information in limited circumstances, which are explained in the attached factsheet and Practice Direction.

(emphasis added.)

19    The letter included a fact sheet in both the English and Tamil languages. Relevantly, the fact sheet included the following statements:

We will only consider the information that was before the department at the time when the department’s refusal decision was made, except in limited circumstances when new information might be considered.

What information does the [Authority] have about my case?

The department will provide the [Authority] with all documents the department considers relevant to your case. This includes any documents you provided to the department in connection with the protection visa application. Generally, we will conduct a review of the department’s decision solely on the basis of the information provided by the department.

Can I provide new information to the [Authority]?

We can only consider new information if there are exceptional circumstances to justify considering the new information. New information is information that is relevant and was not before the department when it made its decision.

If there is new information that you want us to consider, you must also provide an explanation why the information:

could not have been provided to the department before it made the decision to refuse you a protection visa; or

is credible personal information that, had it been known to the department, may have affected the department’s decision.

…

(emphasis added.)

20    The last of these passages was also reflected in the enclosed Practice Direction.

21    The appellant sent a submission, together with some documents, to the Authority late on 4 August 2016. There is no challenge to the way in which the Authority dealt with that material.

22    The appellant sent a further communication to the Authority late on 10 August 2016. In his covering letter, the appellant said that he ‘would like to add some more important submission to the [Authority] with regard to the review of the refusal of my protection visa’.

23    The submission begins as follows:

I would like to include some crucial and different ‘information’ to be attached to my submission. The incident relates to the criminal charge I had in this country. …

(emphasis and quote marks added.)

24    The delegate had referred to the appellant’s charge in Australia and its subsequent withdrawal in the context of his consideration of the criterion in s 36(1C) of the Migration Act. It is common ground that, before the delegate, the appellant did not give any other details about this charge insofar as his claims to protection were concerned.

25    The supplementary submission to the Authority then proceeded to:

(a)    outline the effect the charge had on the appellant;

(b)    assert that the incident was ‘widely spread throughout [his] village’;

(c)    provide details concerning the alleged circumstances giving rise to the charge and its withdrawal;

(d)    explain why he had not mentioned it in his protection visa interview; and

(e)    specify, for the first time, why he says he feared harm as a result.

26    The Authority set out a summary of this material. Apart from the fact of the charge and its subsequent withdrawal, everything else was new. The appellant does not now say to the contrary and does not suggest that the new information should have been examined as distinct from his new claim.

27    The Authority then assessed the material. It considered that the appellant’s claim:

to fear specific harm as a consequence [of the charge] is new information, because it substantially changes and adds to the basis on which his claims were initially made before the delegate.

28    The Authority did not consider that there were ‘exceptional circumstances which justify consideration of the new information’. This was because the appellant included the information about the charge in his application (notwithstanding its embarrassing nature) and he must have known that the delegate ‘would have been aware of the circumstances of his detention’. The Authority found it ‘difficult to accept’ that the appellant did not provide the delegate with ‘all of the information now given to the [Authority] about the circumstances which led to his being charged and the consequent fears that the holds’ and that it was ‘hard to believe’ that, given its extenuating nature, he felt ‘too uncomfortable’ to provide the material to the delegate.

29    The Authority was not satisfied that any of the conditions of s 473DD were met and accordingly did not have regard to the material.

30    The appellant sought judicial review in the Federal Circuit Court, which rejected his application.

31    The appellant contends that the Federal Circuit Court erred in finding that the Authority’s decision did not involve jurisdictional error.

IN THE FEDERAL CIRCUIT COURT

32    As noted by the primary judge (at [15]), the primary complaint of the appellant is directed to [11] and [12] of the Authority’s decision. In those paragraphs, it was noted that the appellant claimed a fear of harm in relation to the knowledge throughout his village that he was charged with sexual penetration of a child under 16 years old. Those charges were ultimately withdrawn but he claimed that the fact of the charges put him at risk of harm in Sri Lanka.

33    The Authority concluded at [12]:

Although the fact that the applicant was charged with this offence was in the information considered by the delegate, I consider that the applicant’s claims to fear specific harm as a consequence is new information, because it substantially changes and adds to the basis on which his claims were initially made before the delegate. While I have some sympathy for the predicament of the applicant I do not consider that there are exceptional circumstances which justify consideration of the new information, being the claims that the applicant fears harm in Sri Lanka as a result of being charged in Australia, from the community in general who know about the charge, from the family of the girl, and from armed groups connected with the girl’s father...

34    As noted in the Federal Circuit Court (at [17]), the appellant submitted that the AAT erred in concluding that the statutory prohibition against receiving ‘new information’ also applied to appellant’s further claim. Before the Federal Circuit Court, the appellant submitted that the Authority’s obligation is to consider any claim made by an applicant and that to make a decision without considering all of the claims fails to complete the exercise of the jurisdiction conferred and, consequently, establishes jurisdictional error.

THE APPELLANT’S CONTENTIONS

35    The appeal now raises the same short question about whether the advancing of a further ‘claim’ based on existing information already before the Authority is caught by the provisions of s 473DC and S 473DD in relation to ‘new information’.

36    The primary judge concluded (at [44]) that the interpretation advanced by the appellant below ‘would disregard what is plainly Parliament’s intention’. His Honour held (at [45]) that it is artificial to distinguish between ‘claims’ and ‘information’ and that a claim cannot exist in a vacuum.

37    The appellant accepts that a claim cannot exist in a vacuum. However, he argues that a claim can be based on material which is already before the decision maker. The appellant does not contend that a claim based solely on new information can be properly raised.

38    The appellant argues that the duty of a court is to give the words of the statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, but not universally, that meaning will correspond with the grammatical meaning of the provision. The context, including legislative history and extrinsic materials, has utility only to the extent that it assists in fixing the meaning of the statutory text: Thiess v Collector of Customs (2014) 250 CLR 664 (at [22]) (the Court); Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503 (at [39]) (the Court); Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 (at [47]) (Hayne, Heydon, Crennan & Kiefel JJ). See also Certain Lloyd’s Underwriters Subscribing to Contract No IHOOAAQS v Cross (2012) 248 CLR 378 per French CJ and Hayne J (at [23]-[26]).

39    The appellant says that:

(a)    section 473DC(1) permits the Authority, subject to Pt 7AA, to ‘get any documents or information’ (called ‘new information’) that ‘were not before the Minister when the Minister made the decision under section 65’ and ‘the [Authority] considers may be relevant’;

(b)    new information is defined by virtue of s 473BB as ‘any documents or information’. The section expressly omits any reference to claims. Parliament could have defined new information to constitute ‘any documents, information or claims’ which were not before the primary decision maker;

(c)    the difference between a claim and new information could also arise where a further claim arises based upon findings made by the primary decision maker;

(d)    for example, if a primary decision maker concludes (in the face of a denial by an applicant) that an applicant has committed an offence. The fact that the primary decision maker has made that conclusion may give rise to an additional claim of fear of harm arising out of the finding that the offence had been committed;

(e)    the decision of the primary judge would have the effect that, on review, that additional claim could not be made (absent a conclusion that s 473DD(b)(ii) is engaged). Using the example cited, the appellant says it is difficult to see how a finding of fact that an offence was committed by an applicant would constitute ‘credible personal information which was not previously known’;

(f)    the argument in relation to the distinction between information and claims can also be demonstrated by reference to s 423A which provides:

How Tribunal is to deal with new claims or evidence

(1)    this section applies if, in relation to an application for review of an RRT-reviewable decision (the primary decision) in relation to a protection visa, the applicant:

(a)    raises a claim that was not raised in the application before the primary decision was made; or

(b)    presents evidence in the application that was not presented in the application before the primary decision was made.

…

(g)    section 423A expressly distinguishes between a claim on one hand and ‘evidence’ on the other. It expressly provides for the consequences of a claim being raised that was not raised in the application before the primary decision was made. No such distinction appears in Pt 7AA.

40    It was within the gift of Parliament, the appellant contends, to use the same wording in Pt 7AA when defining ‘new information’. It chose not to do so. For that reason, the primary judge’s conclusion that ‘it is plain that Parliament’s intention in enacting these provisions was to restrict applicants to material put before the delegate, save in exceptional circumstances’ (at [44] of the reasons) was, the appellant argues, erroneous in so far as the conclusion extends to a claim based on pre-existing evidence and information.

THE MINISTER’S CONTENTIONS

41    The Minister argues that the primary judge’s reasons for rejecting the appellant’s interpretation of the statutory provisions in Pt 7AA dealing with new information are correct. The primary judge observed (at [44]) that it was plain that Parliament’s intention in enacting s 473DC and s 473DD of the Migration Act was to restrict applicants to material put before the delegate, save in exceptional circumstances.

42    The primary judge then noted (at [44]) that s 473DC and s 473DD must be read in their context, and that the Authority does not review decisions of delegates in the same way as the Administrative Appeals Tribunal (AAT). After setting out differences in the way that the Authority can review decisions, his Honour concluded (at [44]) that given the limited statutory function of the Authority, ‘it would be very odd if the Authority could consider new claims as a general rule’.

43    The Minister says this is correct, as it is in accordance with the statutory regime established by Part 7AA, especially having regard to the following aspects:

(1)    that, by s 473DA, Div 3 of Pt 7AA is taken to be an exhaustive statement of the requirements of the natural justice hearing rule which operates to the exclusion of the common law: see BBS16 (at [93]); AFK16 v Minister for Immigration and Border Protection [2016] FCCA 1826 per Judge Cameron (at [12]); CDR16 v Minister for Immigration and Border Protection [2016] FCCA 2759 per Judge Driver (at [34]);

(2)    that, by s 473DB, the review is to be on the papers by reference to the ‘review material’ (defined in s 473CB) and ‘without interviewing the referred applicant’; and

(3)    the Authority’s powers on review in s 473CC(2) (which do not include a power to set aside the delegate’s decision and substitute a new decision).

44    The conclusion is also consistent with the following provisions which were introduced into the Migration Act at the same time by way of the Migration and Maritime Powers Amendment Act:

(1)    section 5AAA(2), which provides that, for the purposes of the Migration Act, it is ‘the responsibility of the non-citizen to specify all particulars of his or her claim to be such a person’ in respect of whom Australia owes protection obligations and ‘to provide sufficient evidence to establish the claim’; and

(2)    section 423A, which provides that the AAT is to draw certain inferences where an applicant raises new claims or evidence. The Minister says there was no need for an equivalent provision in Pt 7AA because ‘new information’ (that is not in the ‘review material’) was already excluded unless certain conditions were satisfied.

45    The Minister agrees with the primary judge who considered (at [45]) that it was artificial to distinguish between ‘claims’ and ‘information’, where his Honour said:

While a "claim" in the most general terms is simply an expression of fear of return to another country for some reason, a "claim" does not exist in a vacuum. It only carries with it meaning capable of consideration if it is accompanied by asserted facts and circumstances. Those facts and circumstances are undoubtedly "information" for the purposes of ss.473DC and 473DD of the Migration Act.

46    The Minister says the distinction the appellant seeks to draw between ‘new claims’, on the one hand, and ‘new information’, on the other, is illusory. A non-citizen claims to be a person in respect of whom Australia owes protection obligations. That claim can only be advanced and ultimately made good by giving information about the factual circumstances that pertain to the non-citizen and his or her country of origin. It is the provision of information (that is, by particulars and evidence) that permits a claim to be assessed by the relevant decision maker against the applicable legal criteria. The Minister submits that that opportunity arose before the delegate.

47    The Minister contends the appellant’s reliance upon the distinction in s 423A of the Migration Act between raising new claims or evidence that were not before the primary decision maker is also misplaced. Section 423A’s reference to both claims and evidence must be seen in its proper context, namely, as part of a scheme of a full merits review of a primary decision where on review the visa applicant is entitled to present whatever further evidence and make whatever new claims that they wish. This is to be contrasted with the very much narrower scheme of review of decisions under Pt 7AA of the Migration Act.

48    I also note a recent decision of the Full Court, BBS16 (Kenny, Tracey and Griffiths JJ) delivered on 10 November 2017, after the hearing of this appeal. BBS16 also concerned Pt 7AA of the Act. In that matter, the first respondent had provided the Authority with a letter from his migration agent along with a statutory declaration and a letter from a member of the Arab Front for Liberation of Ahwazi Province. Contained within that material was a new claim by the first respondent that he participated in political activities in Iran and Australia. The Authority refused to consider what the Authority collectively referred to as ‘new information’ because it was not satisfied that there were exceptional circumstances warranting its consideration. In his notice of contention, the first respondent argued that the Authority applied an inappropriately narrow understanding of the phrase ‘exceptional circumstances’ in s 473DD(b) when refusing to consider the ‘new information’. Although the Full Court was not asked to determine whether there is a distinction between a ‘new claim’ and ‘new information’, of relevance to this matter is the Court’s reasoning that arises from the consideration of the respondent’s notice of contention: the Court considered the new claim and the supporting information collectively as ‘new information’ and did not seek to draw any distinction between the two.

CONSIDERATION

49    The narrow point for the appellant is that:

(a)    there is no impediment on the Authority considering new claims based on the same existing information; and

(b)    if a new claim on the same information is put before it, it should consider it.

50    Such a submission for the appellant might well have force in a different forum and thus does give pause for consideration. In courts of law, if all the same information or evidence is relied upon before the reviewing court and there is otherwise no prejudice, a different legal consequence could be advanced and considered. However, the Migration Act dictates a limited function of the Authority. As the primary judge observed (at [44]), if such a submission were accepted, it would disregard what is plainly Parliament’s intended interpretation of s 473DC and s 473DD. In my view, it is plain that Parliament’s intention in enacting these provisions was to restrict applicants to material put before the delegate, save in exceptional circumstances. The provisions must be read in their context. That context includes these factors:

(a)    The Authority does not stand in the shoes of the original decision maker in the same way as the AAT. It cannot substitute its own decision; it can only affirm the decision or remit the case for further consideration.

(b)    The Authority’s function is not to deal with the applications for review but to review adverse decisions referred to it by the Department.

51    In my view, given the limited statutory role of the Authority, the reasons of the Federal Circuit Court were correct. The Explanatory Memorandum, if it were necessary, puts the matter beyond doubt.

52    The Minister makes a further point that, even if there was jurisdictional error in failing to take into account the new claim, to remit it would be pointless as the existing information could not possibly support the new claim. Implicitly, the appellant tends to accept this would be so. However, he argues that the difference is that the Authority does have the power to seek additional information in relation to the claim, should it wish to do so. Therefore, it cannot be said that it would be futile to remit it to the Authority if there has been jurisdictional error because it is possible that the Authority may choose to get new information, especially if the claim has merit. However, having rejected the appellant’s interpretation of the statutory provisions, his application must fail.

CONCLUSION

53    The new claim did involve ‘new information’ and therefore the statutory prohibition against receiving ‘new information’ also applies to the appellant’s new claim. It pertained to a different fear.

54    Although the submissions of the Minister have prevailed on this occasion, the Court is grateful to the helpful argument and assistance given by pro bono counsel, Mr Robertson.

Associate:

Dated:    1 December 2017