FEDERAL COURT OF AUSTRALIA

BHE17 v Minister for Immigration and Border Protection [2018] FCA 757

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant 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

BARKER J:

1    The appellant appeals from a decision of the Federal Circuit Court of Australia dismissing his application for judicial review of a decision of the Immigration Assessment Authority. By its decision, the Authority affirmed a decision of a delegate of the Minister for Immigration and Border Protection to refuse to grant the appellant a Safe Haven Enterprise (subclass 790) visa (SHEV) under the Migration Act 1958 (Cth).

2    The appellant, who is about 24 years of age at the time of the appeal, is an Afghan national of Hazara ethnicity and Shia Muslim faith. He is from the Ghazni province, but left Afghanistan for Pakistan with his parents when he was a young child.

3    In November 2012, the appellant arrived in Australia by boat as an unauthorised maritime arrival.

4    On 7 January 2016, the Department of Immigration and Border Protection invited the appellant to lodge an application for a Temporary Protection (subclass 785) visa, or a SHEV. He applied for a SHEV the following month.

5    In his statutory declaration submitted with his SHEV application, the appellant said he believed his family fled Afghanistan, when he was a child, due to fighting and insecurity in the country, and for fear of being killed by armed groups due to their Hazara ethnicity.

6    He said the situation for people of Hazara ethnicity in Pakistan was also not safe and, when old enough, he decided to go to Iran for work, which he did, for about 18 months, until he was deported to Afghanistan. He then travelled back to Quetta in Pakistan. He left Pakistan in 2012 for Australia.

7    The appellant stated that Quetta was not a safe place for him to live and work, nor was Afghanistan, due to being Hazara and Shia Muslim. He referred to people being kidnapped based on their race and religion and the dangers of travelling within Afghanistan for people of Hazara ethnicity. He said that Shia Hazaras were vulnerable to targeted killings carried out by the Taliban in Afghanistan, and Pashtuns and Baluchs in Pakistan alike.

8    In summary, he claimed to fear being seriously harmed by the Taliban, Pashtuns or other armed groups including as a result of his ethnicity, religion and having sought asylum in a western country, meaning he would be accused of spying on behalf of western countries. He also said he was at risk of being seriously harmed or killed on the roads to his village in Afghanistan, upon which he would need to regularly travel for necessities. He described the Taliban’s presence as strong and that Hazaras were killed indiscriminately.

9    The delegate refused the appellant’s SHEV application on 7 September 2016, and the application was then automatically referred by the Minister to the Authority for fast track review under the Act.

10    The Authority affirmed the delegate’s decision on 17 February 2017.

11    On 24 March 2017, the appellant applied for judicial review of the Authority’s decision in the Circuit Court. A judge of the Circuit Court dismissed the application on 5 December 2017, finding that no jurisdictional error had been made by the Authority in its decision-making.

12    The appellant now appeals from the judgment and orders of the Circuit Court on the single ground that the judge erred in failing to find that the Authority had misconstrued or misapplied ss 473DC, 473DD and 473DF of the Act.

13    In essence, the issue is whether the judge erred in failing to find that the Authority erred in failing to consider certain information given to the Authority by the appellant’s representative at a late stage in the Authority’s decision-making process, the Authority having earlier on considered relevant similar materials submitted to it.

14    To understand this ground fully, however, it is necessary both to set out those provisions of the Act and to explain how the appellant’s SHEV application was dealt with by the delegate, the Authority and the judge.

Relevant provisions

15    Section 473DC of the Act provides:

473DC    Getting new information

(1)     Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:

(a)     were not before the Minister when the Minister made the decision under section 65; and

(b)     the Authority considers may be relevant.

(2)     The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.

(3)     Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:

(a)     in writing; or

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

16    Section 473DD provides:

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.

17    Section 473DE provides:

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.

18    Section 473DF provides:

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.

Delegate’s Decision

19    In addition to the appellant’s SHEV application, the appellant’s migration agent provided the Department with an outline of submissions in May 2016, addressing the reasons why the appellant was not able to obtain documentary evidence of his Afghani identity, nationality and citizenship.

20    The appellant then attended an interview with the delegate in July 2016. He was assisted at the interview by a Hazaragi speaking interpreter. It would appear he was also accompanied by his migration agent as his representative.

21    After the interview, in July 2016 his representative submitted a further lengthy outline of submissions containing a range of country information, which addressed issues raised at the interview in respect of the appellant’s identity, and the security situation in Afghanistan in relation to Hazara Shias, Ghazni province, and road safety.

22    These submissions also addressed the appellant’s fear of persecution based on his membership of the particular social group of “failed Hazara asylum seekers who have fled to the west”, and actual or imputed political opinion of being anti-Taliban, pro-west and pro-government. Finally, the submissions provided country information regarding the appellant’s claims for complementary protection.

23    On 7 September 2016, the delegate refused the appellant’s application. She considered country information regarding the security situation in Jaghori, Afghanistan, where the appellant was born, and concluded the appellant did not face a real risk of persecution in Jaghori based on being Hazara Shia, finding there was a lack of insurgent violence in that district.

24    In terms of having safe access to Jaghori, the delegate found, based on country information, that the appellant would be able to safely and legally access his home district.

25    In relation to his claim regarding his fear of harm based on being a failed asylum seeker and returnee from the west, the delegate considered that country information indicated there was a general lack of evidence as to persecution on this basis in Afghanistan.

26    In her decision, the delegate acknowledged the instability of Afghanistan, however found that the volatility was not such as to create a real chance the appellant would face persecution if returned to Jaghori.

27    The delegate stated that, considering the country information referred to in assessing whether the appellant met the refugee criteria under s 36(2)(a) of the Act, she also found there was no real risk the appellant would suffer significant harm if returned to Jaghori, meaning the s 36(2)(aa) complementary protection criteria were also not met.

28    The matter was then referred to the Authority on or about the same date.

Authority’s Decision

29    A week later, on 13 September 2016, the Authority, in a letter sent to the appellant, acknowledged the referral of the delegate’s refusal decision. Then, between October 2016 and February 2017 there was a steady flow of correspondence between the Authority and the appellant’s representative.

30    The chronology of these communications is as follows:

    On about 4 October 2016, the appellant's representative provided a further statutory declaration of the appellant to the Authority. In it he stated his fears if returned to Afghanistan; information regarding the situation in the Ghazni province (in which Jaghori is located); security problems for Hazara people in Quetta, Pakistan; and difficulties faced by Afghan refugees in Iran.

    On 5 October 2016, the appellant’s representative gave the Authority an expert opinion on the return of Hazaras to Afghanistan, written by Professor William Maley, AM.

    On 5, 10 and 19 October 2016, the appellant’s representative gave the Authority news articles and country information regarding security in the Ghazni province; Taliban “road terror” in Afghanistan; recent attacks in Kabul; and the Parwan province.

    On 19 October 2016, the appellant’s representative sent the Authority submissions.

    On 24 October 2016, the Authority wrote to the appellant inviting him to comment, by 7 November 2016, on information which it said may lead it to conclude that future attacks upon the Shia Hazara population were likely to be infrequent and not to such an extent as to pose a real chance or risk of harm to him. He was also invited to provide information regarding why it would not be reasonable for him to relocate to other areas of Afghanistan, and comment in response to country information regarding areas in Afghanistan that were home to high Hazara populations and considered safe, such as the city of Mazar-e-Sharif.

    On 8 and 9 November 2016, further submissions were provided to the Authority by the appellant’s representative, along with documents outlining “the story of one recent abduction and kidnapping of a returnee to Herat” submitted to “shed light” on the impact of this crime on the affected individual and his family.

    On 9 and 12 November 2016, the appellant’s representative gave the Authority media articles concerning Mazar-e-Sharif.

    On 23 November 2016, the appellant’s representative sent the Authority a further expert opinion of Professor Maley on the return of Hazaras to Afghanistan; as well as an amended schedule of articles regarding attacks in Kabul.

    On 2 December 2016, the Authority wrote to the appellant noting that it had come to its attention “that some of the information in our previous letter [dated 24 October 2016] did not explain why the information [was] relevant to the review”, giving reasons why the information was relevant, and inviting him to further comment on the information by 16 December 2016.

    On 17, 18 and 19 December 2016, the appellant’s representative gave the Authority further media articles and country information in respect of the Taliban; Mazar-e-Sharif; Vice President Dostum; the pardoning of a Pashtun Sunni extremist, Gulbuddin Hekmatyar; politics in the Balkh province; and the state of war, insurgency and politics in Afghanistan.

    On 19 and 22 December 2016, the appellant’s representative gave the Authority submissions in response to the Authority’s 2 December 2016 invitation letter.

    On 10 January 2017, the appellant’s representative gave the Authority what was described as an “Updated Combined pdf Set of Recent News Articles regarding Gulbuddin Hekmatyar”.

    On 13 January 2017, the appellant’s representative gave the Authority media articles regarding violence in Afghanistan in the first three weeks of 2017.

    On 30 January 2017, the appellant’s representative gave the Authority media articles and country information under cover of an email that stated:

Please find attached:

1    an updated Combined Media Articles pdf regarding Vice President General Abdul Rashid Dostum showing that political rivals have made serious strikes at seeking to silence his voice which has been the most vocal anti-Taliban voice in Afghanistan politics. The fact that the Washington Post does not dismiss the allegations as baseless would tend to reinforce the apparent pro-Gulbuddn Hekmatyar position of the United States. The new President is now in office but nothing so far has indicated any change approach in Afghanistan.

2    an opinion article from Ein News expressing the opinion that the former U.S. President Obama has left the new U.S. President Trump a disaster in terms of the current security situation and military failure in Afghanistan

The Submission in response to the IAA request for comment on 1 December 2016 will follow.

    On 9 February 2017, the appellant’s representative gave the Authority a further amended schedule of media reports of attacks in Kabul, stating that this was because “there have been further attacks between November 2016 and 8 February 2017 including an attack on the Supreme Court in the last 48 Hours”, together with copies of the related articles.

31    Save for a present debate in the appeal about the status of the information given by the appellant’s representative to the Authority on 10 January 2017 and 30 January 2017, it appears the Authority did not object to the receipt of these various other documents and, indeed, considered them in their decision-making.

32    In this regard, at [3]-[17] of its decision record, the Authority set out the information it had regard to in affirming the delegate’s decision. The Authority determined whether it was satisfied there were “exceptional circumstances” for considering, as “new information”, country information the appellant had provided, especially in regard to attacks on Shia Muslims in Mazar-e-Sharif and Kabul which post-dated the delegate’s decision. The Authority was satisfied there were exceptional circumstances allowing it to consider such new information (as provided for by s 473DC and s 473DD), stating at [12]:

… The reports present new information which impact on the consideration of the applicant’s claims and particularly in relation to the assessment of whether the applicant will face harm in the reasonably foreseeable future and the viability of relocation to Mazar-e-Sharif. I am satisfied that there are exceptional circumstances for considering this information.

33    However, in respect of information the appellant had provided in January 2017, including in relation to political figures in the Balkh province in Afghanistan and an opinion piece referring to issues facing the United States in regard to Afghanistan’s security situation, the Authority stated it was not satisfied there were exceptional circumstances in which this information could be considered, noting at [14] that “the representative has not advised how these articles are relevant to the consideration of the [appellant]’s claims”.

34    In this appeal, the debate ensues concerning just what "these articles" comprised which the Authority rejected, having regard to the terms of [13] and [14] in particular.

35    Paragraphs [12]-[14] of the Authority’s decision should be set out fully (with emphasis added):

12.    Just prior to the delegate’s decision there were a number of reports of a suicide bombing targeting Hazaras in Kabul on 23 July 2016. Although this event was referred to by the delegate in the decision, there have been further reports since the delegate’s decision of attacks on Shia on 12 October 2016 in Kabul and Mazar-e-Sharif and in Kabul on 21 November 2016 which I have obtained. I have also obtained updated country information on the security situation dated January 2016 and 1 November 2016 and the presence of Hazaras in Mazar-e-Sharif. The reports present new information which impact on the consideration of the applicant’s claims and particularly in relation to the assessment of whether the applicant will face harm in the reasonably foreseeable future and the viability of relocation to Mazar-e-Sharif. I am satisfied that there are exceptional circumstances for considering this information.

13.    On 24 October 2016 and 2 December 2016 the [Authority] invited the applicant to comment on information in respect to the Kabul suicide bombing of 23 July 2016, subsequent attacks on Shias and provide information relating to reasonableness of relocation to places within Afghanistan, including Mazar-e-Sharif. On 8 November 2016, 9 November 2016, 12 November 2016, 17 December, 19 December 2016 and 22 December 2016 the applicant’s representative provided responses which included primarily media articles in respect to the security situation in Herat, Mazar-e-Sharif and Samangan and the political figures in Balkh province. As the information was provided in response to an invitation from the [Authority], I am satisfied that the information contained within the responses was not before the Minister and could not have been provided before the delegate’s decision. The information relates to issues that have been raised consequently to the delegate’s decision. I am satisfied that there are exceptional circumstances to justify considering it.

14.    On 10 January 2017 and the 30 January 2017 the applicant’s representative sent further articles in respect to the political figures in Balkh province and an opinion article on the issues which the former US president has left to the new US president in regard to Afghanistan’s security situation. The information relating to political figures in Afghanistan and Balkh province is further new information pertaining to what was provided in response to the invitation previously. The opinion piece is also new information. Other than providing an update on the political situation the representative has not advised how these articles are relevant to the consideration of the applicant’s claims. I am not satisfied that there are exceptional circumstances for considering them.

36    As I say, it is [14] that has caused the current debate as it is acknowledged by the parties that the information excluded, depending on one’s construction of the Authority’s reasons, may include the information, or some of it, apparently accepted for consideration at [13].

37    Ultimately, the Authority affirmed the delegate’s decision not to grant the appellant a SHEV. In particular, it was not satisfied the appellant faced a well-founded fear of persecution, or real risk of significant harm in Mazar-e-Sharif, and that, accordingly, it was reasonable for him to relocate to that city. It followed he did not satisfy either the protection or complementary protection provisions of s 36(2)(a) and s 36(2)(aa) of the Act.

Judicial Review in the Federal Circuit Court

38    On 24 March 2017, the appellant filed his application for judicial review. Before the judge in the Circuit Court, he alleged that:

(1)    the Authority failed to consider one of his expressly-articulated claims;

(2)    the Authority failed to consider all of his circumstances when considering the reasonableness of his relocation to Mazar-e-Sharif; and

(3)    the Authority misapplied or misconstrued ss 473DC, 473DD and 473DF of the Act; particulars of which are set out below.

39    The judge found (1) and (2) were not made out. Those findings are not pursued on this appeal.

40    The third ground was also found not to be sustained by the judge. It is pursued on this appeal. The particulars provided by the appellant in support of this ground in the Court below were:

a.    At [14] of its reasons for decision, the [Authority] was not satisfied that there were exceptional circumstance for considering information about Balkh province because the representative had not described the relevance of that information to the [appellant]’s claim.

b.    The information had been provided in response to an invitation from the [Authority] to provide information relating to the reasonableness of relocation to Mazar-e-Sharif.

c.    The [Authority] had previously found that this information was ‘new information’, and was therefore considered by it to be relevant by virtue of s 473DC(1)(b) of the Act.

d.    The [Authority]’s misapprehension was the only stated basis for it not being satisfied about exceptional circumstances, and it thereby erred by not considering that information.

41    The judge found that the Authority considered both limbs in s 473DD(a) and (b) and, accordingly, it was open to it to find that certain articles were not relevant to considering the appellant’s claims. His Honour considered that the Authority’s reasons should not be read with a keen eye for error, and found that it was a matter for the Authority to determine whether or not information was relevant to the consideration of the appellant’s claims.

42    The judge held that even if the Authority was in error in determining whether the articles were relevant to the appellant’s claims, the error was one made within its jurisdiction and so did not give rise to jurisdictional error.

Appeal to This Court

43    As noted above, the appellant appeals from the judgment and orders of the judge on the sole ground that the judge in the Circuit Court erred in failing to find that the Authority had misconstrued or misapplied ss 473DC, 473DD and 473DF of the Act.

44    The following particulars of the ground are advanced:

1.    In its reasons for decision, the [Authority] concluded that:

a.    Section 473DD(a) and (b)(i) were met in relation to particular items of new information (at [13]); and

b.    Section 473(DD)(a) was not met in respect of identical (as well as additional) items of information because the representative had not described their relevance to the appellant's claims (at [14]).

2.    The learned primary judge concluded that the [Authority]'s conclusion at [14] of its reasons for decision was open to it because, in that Court's view, the [Authority] had considered both limbs of s 473DD given its references to the nature of the information and the appellant's claims.

3.    The learned primary judge erred by:

a.    failing to also consider the [Authority]'s findings at [13] of its reasons for decision; and

b.    concluding that any error was within jurisdiction.

4.    The learned primary judge ought to have found that the [Authority] had misconstrued or misapplied ss 473DC, 473DD and 473DF because, on a fair reading of its reasons for decision, the [Authority]:

a.    had already determined the relevance of the new information (at [12]);

b.    had been satisfied that s 473DD(a) and (b)(i) were met in relation to identical items of new information (at [13]);

c.    had only considered s 473DD(a) (at [14]) (cf BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958 (BVZ16) at [36]);

d.    evidently considered the updated additional information to be relevant to its review of the decision referred to it (at [33], [49]); and

e.    adopted an inappropriately narrow understanding of ‘exceptional circumstances’ by treating as decisive the representative's failure to provide an explanation (cf BVZ16 at [47]).

45    In his outline of written submissions, the appellant says:

This case considers the interaction of ‘exceptional circumstances’ in s 473DD(a) with the concept of relevance under s 473DC(1)(b) of the [Act], the apparent acceptance and rejection of the same ‘new information’ by a decision-maker under s 473DD, and the rejection of additional information provided in response to an invitation to give new information or written comments in the context of s 473DF.

46    The appellant submits, by reference to Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16, that:

    When reviewing a fast track reviewable decision, the Authority can “get” (in the sense of seek out) “new information” which was not before the Minister when the decision under s 65 was made and the Authority considers may be relevant: s 473DC(1). It does not have a duty to get, request or accept, any new information: s 473DC(2). However, it may invite a person, orally or in writing, to give new information in writing: s 473DC(3)(a).

    “Information” is used in the ordinary sense of a communication of knowledge about some particular fact, subject or event.

    “New information” can only be considered in exceptional circumstances: s 473DD. The Authority must not consider any new information unless:

(a)    it is satisfied that there are exceptional circumstances to justify considering it; and

(b)    the referred applicant satisfies it that the new information:

(i)    was not, and could not have been, provided to the Minister before the Minister made the decision under s 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.

    What amounts to exceptional circumstances is inherently incapable of exhaustive statement. The word “exceptional” 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”.

    Certain new information must be given to a referred applicant: s 473DE. Relevantly, the Authority must give to the applicant particulars of any new information if that new information has been, or is to be, considered by the Authority under s 473DD, would be the reason, or a part of the reason, for affirming the decision, explain to the applicant why the new information is relevant to the review, and invite him or her to give comments on the new information in writing: s 473DE(1).

    Section 473DF applies if, relevantly, a referred applicant is invited to give new information (under s 473DC) or invited to give comments on new information (under s 473DE). The information or comments are to be given within a period that is prescribed by regulation and specified in the invitation: s 473DF(2). If the referred applicant does not give the new information or comments in accordance with the invitation, the Authority may make a decision on the review without taking any further action to get the information or the referred applicant’s comments on the information: s 473DF(4)(a).

47    The appellant refers to [14] of the Authority’s reasons, concerning the articles submitted on 10 and 30 January 2017, and says the reasons are erroneous because “the same articles had been included in submissions of 24 October 2016 and 2 December 2016”, and which the Authority was satisfied justified consideration.

48    In short, the appellant submits the judge fell into error because:

(1)    the Authority had self-identified the relevance of the information in issue;

(2)    the Authority adopted a contradictory approach to country information in [13] and [14]; and

(3)    the Authority’s interpretation of “exceptional circumstances” was unduly narrow.

49    The Minister opposes the appeal and contends that the appellant’s description of the issue arising on appeal is incorrect, as no question of the interaction between s 473DC(1)(b) and s 473DD arises.

50    The Minister submits the central issue is whether the Circuit Court erred in holding that the Authority had not made a jurisdictional error in deciding not to consider new information, in the s 473DC(1) sense of the term. The Minister contends this question requires consideration of whether the Authority misconstrued or misunderstood the s 473DD criteria.

51    The Minister argues that each of the three propositions advanced by the appellant, as to why it was the judge erred, should be rejected.

52    I will consider the parties’ submissions in relation to each proposition advanced by the appellant before considering the ground of appeal as a whole.

Proposition 1: The Authority self-identified the relevance of the information.

53    The appellant addresses his first proposition to the following effect:

    The judge ought to have concluded that the Authority misapprehended s 473DC(1)(b) of the Act. The Authority acted on an erroneous basis when rejecting the representative’s submissions of 10 and 30 January 2017 on account of a lack of explanation of their relevance.

    The relevance of the information was identified by the Authority in its letters dated 24 October 2016 and 2 December 2016. The Authority was acting under s 473DE of the Act which requires it to explain to a referred applicant why the new information is relevant to the review: s 473DE(1)(b). It can invite referred applicants to give new information under s 473DC or comment on new information in writing under s 473DE (s 473DF(1)). Here, its correspondence indicates that it was acting under both provisions – that is, in some cases to “comment”, in other case to give information. Certain material had been provided by the appellant’s representative in response to an invitation from the Authority to provide comment and information about particular matters including the reasonableness of relocation, particularly to Mazar-e-Sharif. It was therefore relevant for that reason. It is also apparent from the history of their correspondence that the country information provided by the representative to the Authority was given in response to the Authority’s invitation to provide information.

    Second, the Authority was concerned that the appellant’s representative had not explained the relevance of the information. However, it had already accepted that certain and partly identical information was “new information” at [13] of its reasons. Whatever the appellant’s representative may have said, the Authority had previously determined that the information was relevant (reasons for decision at [12]).

    Third, it is clear from other parts of its decision that, having regard to the subject matter under consideration, the Authority evidently considered the updated and additional information addressed at [14] of its reasons to be relevant to its review. For example, at [33] and [49] of its decision record, the Authority twice referred to the ethnic Tajik governor and Vice President Dostum as having set aside their differences in order to restore security in Balkh province, but that this alliance was a reluctant and fragile one.

    Fourth, there is no statutory obligation on an appellant to explain the relevance of information. There is no requirement comparable to, for example, s 473DD(b) of the Act, which requires referred applicants to satisfy the Authority that, in relation to any new information given, or proposed to be given, the information was not, and could not have been, provided to the Minister before the decision was made under s 65, or was credible personal information which was not previously known and, had it been known, may have affected consideration of the referred applicant’s claims.

54    The Minister submits that this proposition is misplaced, as the appellant does not recognise the distinction between, and distinct roles of, s 473DC and s 473DD. The Minister submits:

Section 473DC(1) relevantly defines the phrase ‘new information’: see 473BB. If the Authority ‘considers’ that a ‘document’ or a piece of ‘information’ ‘may be relevant’ (cf s 473DC(1)(b)), and that document or piece of information is one that was ‘not before the Minister when the Minister made the decision under section 65’ (cf s 473DC(1)(a)), then the document or piece of information becomes ‘new information’ for the purposes of Part 7AA of the Act. The inquiry conducted by the Authority under s 473DC(1) is anterior to that which it conducts under s 473DD. If the Authority decides to ‘get’ or ‘accept’ (cf s 473DC(2)) information, and that information satisfies the definition in s 473DC(1), it would, then, assess the new information against the requirements of s 473DD. If the new information satisfies the requirements of s 473DD, the Authority will be under an implied duty to consider it in the context of the review of the delegate’s decision; if not, then, as the chapeau to s 473DD commands, the Authority will be prohibited from considering the new information. Section 473DB(1)(a) supports this construction.

55    The Minister submits that in this case the Authority characterised the country information attached to the 10 January and 30 January 2017 emails as “new information”, meaning it considered the information “may” be relevant. The Minister refers to the observation of this Court in CDZ16 v Minister for Immigration and Border Protection [2017] FCA 967, that the s 473DC(1)(b) criterion is that the Authority subjectively considers that information “may”, not “must” be relevant.

56    The Minister contends that, in this case, the Authority then went on to determine whether the new information satisfied s 473DD, which required much more than that the information “may” be relevant. To this end, the Minister says the Authority can determine that country information may be relevant to the broad topic of Afghanistan’s security situation, but that exceptional circumstances do not exist to justify considering it when making its review decision, and this is what the Authority decided here.

Proposition 2: The Authority adopted a contradictory approach to country information.

57    The appellant submits that:

    In dismissing the judicial review application, the judge failed to consider the Authority’s inconsistent findings at [13] and [14] of its reasons for decision. It concluded, at [13], that ss 473DD(a) and (b)(i) were met in relation to particular items of new information. However, s 473(DD)(a) was not met in respect of identical (as well as additional) items of information because the representative had not described their relevance to the appellant’s claims: at [14]. In short, the Authority adopted an inconsistent approach to country information addressing the same topic, being the influence of political figures in Balkh province. The country information considered at [14] of its decision were “further articles” about the same country information considered at [13], in respect of which it had been satisfied that there were exceptional circumstances to justify their consideration.

    The Authority’s contradictory conclusions about the same country information are apparent from a comparison of the representative’s submissions over the course of the review. The representative’s submission of 10 January 2017 (considered at [14]) contained articles that had previously been submitted to it on 19 December 2016 and in respect of which it had been satisfied of exceptional circumstances to justify their consideration (see reasons for decision at [13]). These articles were an Asia Times article dated 2016; a terrorism profile dated 2015; a New York Times article dated 2013; an Al Jazeera article dated 2016; an Outlook article from 2016; and a Firstpost printout.

    The representative’s submission of 30 January 2017 (considered at [14]) of the Authority’s reasons for decision) also contained articles that had previously been submitted to the Authority on 17 December 2016 and in respect of which it had been satisfied of exceptional circumstances to justify their consideration (see reasons at [13]). These articles were news articles entitled “Dostum calls Taliban the enemy not brothers”; “Dostum’s bodyguards come under attack”; “Dostum accuses President of nepotism”; “Dostum terms Abdullah’s remarks inappropriate”; “Dostum accuses Ghani of monopolising power”; “Dostum’s remarks cause concern over Afghan stability”; and “One dead in shootout between Dostum and Noor supporters”.

    The additional information provided in the representative’s submissions of 10 and 30 January 2017 pertained to a particular topic: the influence of prominent political figures in Balkh province. Given the manner in which they were described by the representative (for example, updated combined media articles), the 10 and 30 January 2017 submissions clearly updated the country information presented in the November and December 2017 submissions. The Authority failed to consider updated country information in relation to a topic of evident interest about which it had earlier been satisfied its consideration was justified. The submission of 30 January 2017 provided more articles about the same political figures which had become available after 17 December 2016, being a Guardian article dated 24 January 2017 and a Sydney Morning Herald article dated 29 January 2017. However, the Authority erroneously concluded that there were not exceptional circumstances for considering more contemporaneous information than earlier submitted. A referred applicant has given new information or comments in accordance with the Authority’s invitation. Even if the absence of a duty on the Authority to accept any new information in any circumstance, as contemplated by s 473DC(2), extended to a response given to its own invitation to comment or give new information for s 473DF purposes, s 473DC(2) in terms only applies to new information and not comment.

58    The Minister submits there are three difficulties with this second proposition:

(1)    that it was “not at all obvious” that the Authority’s reasons at [14] are inconsistent with its findings at [13], in reference to the appellant’s criticism that the Authority was not satisfied that there were exceptional circumstances to justify the consideration of country information contained in the 10 and 30 January 2017 emails, which was identical to country information it have been given in 2016. The Minister submits that the Authority’s references to “further” articles and “further” new information, at [14], show it must have isolated the documents not previously given to it. The Minister contends this construction is fortified by the Authority’s description, also at [14], of the country information as “providing an update of the political situation” in Afghanistan;

(2)    that, even if the Authority’s reasons are read so as to include the new information already given, and even if this is to be characterised as a misunderstanding of s 473DD, any error could not be jurisdictional as it could not have affected the exercise of the Authority’s dispositive powers under s 473CC(2), with the information having already satisfied the s 473DD criteria; and

(3)    that the appellant’s submissions regarding the information not provided prior to the January 2017 emails, amount to an appeal to the merits of the Authority’s findings. In this regard, the Minister submits:

… Whether or not the additional items of country information ‘updated the country information presented in the November and December submissions’ is not to the point; that does not address the question posed by s 473DD(a). If it did, that would have the consequence that satisfaction (or non-satisfaction) of the criterion of s 473DD(b)(i) is decisive of the existence of exceptional circumstances, which this Court has held is not the case. Nor is it the point that the country information went to ‘a topic of evident interest’. The appellant’s submissions run into the difficulty identified by White J in BVZ16 v Minister for Immigration and Border Protection [2017] FCA 959 (BVZ16) at [44]-[45] in that they seek to invite the Court ‘to engage in a form of appeal of the factual merits of the [Authority]’s decision’ not to consider the additional items of country information.

59    The Minister also submits that the appellant, in his correspondence of 10 and 30 January 2017, did not comment on the information contained in the Authority’s invitation, but merely attached articles; and notes that, in any event, the time for responding to the invitation lapsed on 16 December 2016.

Proposition 3: The Authority’s interpretation of “exceptional circumstances” was unduly narrow.

60    The appellant notes that the judge concluded there was no basis to find that the Authority adopted an erroneously narrow meaning of exceptional circumstances. He contends that, on a fair reading of the Authority’s reasons at [14], the judge ought to have found the Authority had only considered one limb, being s 473DD(a), and so committed a jurisdictional error. See BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958 at [36] (White J).

61    The appellant says the Authority stated it was not satisfied there were exceptional circumstances for considering an update on the political situation, because his representative had not described the relevance of that information in respect of his claims. The appellant argues this was the only basis for it not being satisfied that exceptional circumstances existed.

62    The appellant contends that in BVZ16, jurisdictional error was identified on the part of the Authority in failing to discharge its s 473DB(1) task of review, on the basis that its construction of “exceptional circumstances” was unduly narrow in circumstances where the Authority confined its consideration to evaluating an appellant’s explanation for not having provided information earlier.

63    The appellant submits that a similar error was identified by the Full Court in Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176, in which it was also held that the Authority adopted an inappropriately narrow understanding of “exceptional circumstances” by treating the representative’s failure to provide an explanation as decisive.

64    Further, in respect of what he refers to as “other matters”, the appellant notes that his representative’s repeated statements in emails attaching country information, that a submission in response to the Authority’s invitation to comment would follow, were of no real consequence. He says that such a submission had been made on 19 and 22 December 2016. He states that these repeated references made it clear that the relevance of the information being submitted was self-evidently a response to the Authority’s invitation to comment and give new information at the time it was provided.

65    The appellant argues that, even if his submissions were late or out of time, this was not a reason that the Authority proffered in rejecting them.

66    Finally, citing [46]-[48] of the decision in BVZ16, the appellant says that any error was not an error within jurisdiction, because the misconstruction or application of ss 473DC, 473DD and 473DF affected the Authority’s obligation to review the fast track decision referred to it. The appellant submits that if the duplicate items of identical country information had been considered, the Authority would not have erred.

67    He contends that the Authority’s error arises from its failure to consider written comments on new information, as well as the provision of new information, which the appellant provided in response to invitations under both s 473DC and s 473DE. The appellant submits this information was recent and relevant to the issue of his relocation to Mazar-e-Sharif, which was of interest to the Authority and may have impacted on the outcome. He states that a beneficial reading of the Authority’s reasons cannot excuse jurisdictional error.

68    In a well-known statement of the law, Mason J in Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1986) 162 CLR 24 at 39-40; [1986] HCA 40 said the ground of failure to take into account a relevant consideration can only be made after the decision-maker fails to take into account a consideration which is bound to take into account in making that decision. His Honour added:

What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the Court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors…are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard.

69    The Minister submits that whether or not the Authority is satisfied there are exceptional circumstances involves an evaluative exercise (emphasis as in submission):

As a Full Court of this Court recognised recently in DYS16 v Minister for Immigration and Border Protection [2018] FCAFC 33 at [17], s 473DD(a), unlike s 473DD(b), does not require the Authority ‘to be satisfied of the existence of a particular fact or facts’. The Authority’s inquiry under s 473DD(a) is evaluative and the range of matters to which it may have regard is broad and unconfined by the terms of the section. It is not the case, for example, that the Authority is required, for the purposes of its assessment of the existence (or absence) of exceptional circumstances, to take into account those matters identified in ss 473DD(b)(i) or (ii). No decision of the High Court or this Court so holds. If, however, the Authority proceeds upon the basis that the failure by the referred applicant to explain satisfactorily (or at all) why the information was not given to the delegate is decisive of the existence of exceptional circumstances, then it may indicate that it has misunderstood the broad ambit of the phrase ‘exceptional circumstances’. That, in turn, may result in jurisdictional error if the Authority has not properly considered the matters described in ss 473DD(b)(i) and (ii). That is how BVZ16 (at [36]-[37]) was read by Gilmour J in BRA16 v Minister for Immigration and Border Protection [2018] FCA 127 at [26].

70    The Minister contends that in the present case, unlike in BVZ16 and cases which have followed it, the Authority did not misunderstand the scope of the term “exceptional circumstances”. The Minister submits that it also cannot be said that the Authority confined itself to the appellant’s failure to explain the relevance of the new information, as submitted by the appellant. The Minister says the Authority took the following matters into account, as demonstrated at [14] of its reasons, namely:

    that the new information considered political figures in the Balkh province and contained an article regarding issues the former United States president left behind in regard to the security situation in Afghanistan, demonstrating an appreciation of the nature and substance of the new information;

    that, in so far as the new information concerned Afghan political figures and the Balkh province, it was “further” information “pertaining to what was provided in response to the invitation previously”, indicating an assessment of the connection between the subject matter of the new information and information previously given to it;

    that the new information provided an update on Afghanistan’s political situation, showing an appreciation of the new information’s currency, among other things; and

    that the appellant’s representative did not otherwise advise how the articles were relevant to the appellant’s claim.

71    In relation to this final matter, the Minister contends that this was something the Authority was entitled to have regard to, and notes that it has not been suggested that this was an irrelevant consideration. He refers to s 473DD(a), stating that this requires the Authority to be “satisfied” of the existence of exceptional circumstance. The Minister notes the Court’s observation in AUH17 v Minister for Immigration and Border Protection [2018] FCA 388 at [33], that (b) at least calls for some material from an applicant by way of explanation. However, the Minister does not suggest that (a) imposes any burden on the referred applicant.

72    In any event, the Minister says, Pt 7AA of the Act does not impose a duty on the Authority to give reasons why it is, or is not, satisfied of matters in s 473DD of the Act. In support of this argument, the Minister notes s 473EA(1)(b) of the Act and s 25D of the Acts Interpretation Act 1901 (Cth) impose obligations on the Authority with respect of its ultimate decision to affirm or remit the delegate’s decision, but not regarding procedural or antecedent decisions made throughout the review process. He contends, in this regard:

… That is because the words ‘the decision’, as they appear in s 473EA(1)(b), refer to ‘the decision of the Authority on the review’ (cf s 473EA(1)(a)) which, in turn, refer back to the words in the chapeau to subs (1), ‘decision on a review under this Part’. That is how the analogous obligation imposed by s 430(1)(b) of the Act on the former Refugee Review Tribunal … has been construed by the High Court. There is no good reason why s 473EA(1)(b) ought not to be construed in the same way.

73    The Minister develops this constructional argument to the following effect:

    As to the obligation to state findings on material questions of fact and to refer to the evidence or other material on which those findings are based, there is also no sound reason why that obligation should be read any more broadly than the analogous obligations imposed on the Refugee Review Tribunal by s 430(1)(c)-(d). Those provisions were held in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 to relate to the findings and evidence or other material considered by the Tribunal to be material to its “conclusion” (that is to say, its conclusion on the review). Reading the obligation imposed by s 25D of the Acts Interpretation Act in the same way in the present context would be consistent with the Minister’s construction of s 473EA(1)(b).

    The practical consequence of these submissions for present purposes is that, absent a duty to give reasons for any decision made under s 473DD, the Court cannot infer that what is contained in the Authority’s written statement at [14] constitutes, or was intended to constitute, a comprehensive statement of the matters that it considered as to whether the requirements of s 473DD were satisfied. There being no duty on the Authority to give reasons for its decision under s 473DD, it is, as the High Court observed in Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 at [25]; [2015] HCA 50, “difficult to draw an inference that the decision has been attended by an error of law from what has not been said by [it]”.

Consideration

74    As I said at the outset of these reasons, and as becomes clear in considering the submissions of the parties, the key issue in contest in the appeal – which the appellant has sought to articulate, one way or another, in his three propositions – concerns what the Authority said in [14] of its decision record or may be taken to have said in the proper construction of [14].

75    I have set out at [35] above, [12]-[14] of the Authority’s decision record.

76    I have also set out at [30] of my reasons above, a short chronology of communications between the appellant’s representative and the Authority by which the appellant supplied either comment or information to the Authority.

77    What becomes apparent is that after a steady supply of information, most if not all of which was, commendably, requested or otherwise received and considered by the Authority, and is not the subject of contest in this appeal, some confusion arises as to what the Authority did with the information supplied by the appellant's representative under cover of the correspondence of 10 January 2017 and 30 January 2017. (I note in passing that no issue arises on the appeal as to the information that the appellant’s representative gave to the Authority on 13 January 2017 and 9 February 2017 neither of which appear to be referred to at [12]-[14] of the Authority's decision record.)

78    As the parties agree in their submissions, under the fast track decision-making process encapsulated in Pt 7AA of the Act, the Authority may get, request or accept “new information” (as defined by s 473BB and s 473DC(1)).

79    Where “new information” is given, requested or accepted, the Authority “must not” consider that information unless, as provided for by s 473DD:

(a)    it is satisfied there are “exceptional circumstances” to justify considering the new information; and

(b)    the referred applicant satisfies the Authority that the new information either was not or could not have been provided to the Minister before the Minister (or delegate) made the decision under s 65; or it is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.

80    Decisions such as BVZ16 and BBS16 have emphasised the breadth of the expression “exceptional circumstances” and have found the Authority will commit a jurisdictional error in its decision-making if it confines its regard to only some factors (such as an applicant’s explanation as to why they could not have provided the Minister with information at the earlier stage of decision-making under Pt 7AA).

81    It is also important to note, as the parties have here, that it is open to the Authority to invite an applicant to provide new information or to give comments to the Authority in writing or at an interview.

82    It is also open to an applicant to give the Authority new information, whether mere information or comments in writing, in the hope, if not expectation, that the Authority will accept it is relevant to its decision-making and accept it for consideration.

83    However, as s 473DC(2) makes it clear, the Authority does not have to accept any new information that the applicant (or their representative) or any other person presents to it.

84    As I have observed above, in this case the Authority, commendably in my view, did accept for consideration a range of new information voluntarily submitted by the appellant's representative.

85    In my view, on a fair reading of the whole of the decision record of the Authority and in particular [12]-[14] thereof, the "articles" in relation to which the Authority was not satisfied about the existence of exceptional circumstances to justify their consideration, only included those articles that were additional to those that the Authority had identified at [13], and had, at [13] said it would consider.

86    The particular information then that the Authority focused on at [14] was that relating to, as it described it, "political figures in Afghanistan and Balkh province" and the "opinion piece".

87    The information relating to the political figures, on a proper construction of what the Authority stated, was that referred to at para (1) of the email of 30 January 2017, and set out above in the second last bullet point at [30] above.

88    The opinion article plainly is that referred to at para (2) of the same email of 30 January 2017.

89    Whether or not it is open to argue that these two categories of information might be seen to be "relevant" to the Authority's decision-making, because articles arguably related to the same general security issues in Afghanistan had been previously provided and apparently accepted by the Authority as helpful and relevant to the Authority's previous decision-making, I do not accept that the Authority, by stating that the appellant had not explained how this new information was relevant, committed a jurisdictional error in finding there were no exceptional circumstances to justify it considering those two categories of new information.

90    A debate about new information and its relevance to decision-making may at times become circular or tendentious. The Authority ultimately is empowered to determine whether there are exceptional circumstances to justify its consideration of new information. It may well make a judgement that others disagree with. It may well, on some views, after the event be considered to have made a factual mistake in exercising its power.

91    But even if either of those situations should arise – and I do not consider there is any firm basis upon on which to say the Authority made a mistake of judgment or fact in this instance – then it would be an error falling within the exercise of the decision-making power of the Authority, not one that exceeds it. It would not be one going to some critical aspect of its decision-making that highlights a failure to ask itself whether there were exceptional circumstances justifying consideration of the new information.

92    Nor can it be said that this is a case where the Authority adopted a limited understanding of what exceptional circumstances means.

93    The Authority already had a significant amount of information before it. To the extent that the new information may have added to that already accepted as relevant and justifying consideration by the Authority does not, in my view, make it impermissible for the Authority to decide that there were no exceptional circumstances justifying its particular consideration.

94    I do not find any necessary inconsistency between the exceptional circumstances finding in [13] of the Authority's decision record and its failure to find exceptional circumstances existed in relation to the two categories of material dealt within [14] of its decision record.

95    I consider that, on a fair reading of the Authority's reasons, given the quantity of material that it had already accepted for consideration, and in the absence of what it considered to be the provision on behalf of the appellant of a good explanation as to the relevance of the late provided two categories of information, it was open to it to find there were no exceptional circumstances justifying the consideration of that material.

96    It is not argued that the Authority, in making its findings at [14], acted unreasonably in a Minister for Immigration and Citizenship v Li and Another (2013) 249 CLR 332; [2013] HCA 18 sense. The question raised is whether the Authority misapplied the exceptional circumstances criteria in the particular facts and circumstances of this case.

97    For reasons I have just given, I do not consider that the Authority did misconstrue any of the relevant provisions. Its decision-making process and its findings followed a logical pathway. No error on the part of the judge in the Circuit Court is revealed in finding there was no jurisdictional error on the part of the Authority.

98    For these reasons the appeal should be dismissed with costs.

Conclusion and Orders

99    For the reasons given above, the Court orders:

(1)    The appeal be dismissed.

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

Associate:

Dated:    14 June 2018