FEDERAL COURT OF AUSTRALIA

CIH16 v Minister for Immigration and Border Protection [2018] FCA 1317

ORDERS

THE COURT ORDERS THAT:

1.    Leave to file an amended notice of appeal be granted.

2.    The appeal be allowed.

3.    The orders of the primary judge be set aside and in lieu thereof it is ordered that:

(a)     a writ of certiorari issue quashing the decision of the second respondent made on 8 April 2017;

(b)     the matter is remitted to the second respondent for determination according to law.

4.    The first respondent pay the appellant’s costs of the appeal.

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

REASONS FOR JUDGMENT

DERRINGTON J:

Introduction

1    This is an appeal from a decision of a judge of the Federal Circuit Court of Australia (FCC), delivered on 1 February 2018. That decision dismissed an application pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act) for judicial review of a decision of the Immigration Assessment Authority (the IAA) made on 8 April 2017.

2    The grounds in the original Notice of Appeal were, it appears, drafted by a person unfamiliar with the requirements of this Court. However, the grounds of the Application for judicial review in the FCC had been drafted by a legal practitioner and gave some content to the arguments the appellant sought to advance in that Court and, subsequently, on appeal.

3    At the hearing of the appeal Mr Bodisco, for the appellant, sought leave to file an amended Notice of Appeal containing a single ground. That was not opposed by the Minister, leave was given and the appeal was fought solely on that ground.

Background

4    It is necessary to set out in some detail the decision of the IAA. This arises because the appellant complains the IAA failed to find there were “exceptional circumstances” such that certain information and documents, which were not before the delegate, could be received and considered.

5    The appellant is a person of Tamil ethnicity and of the Hindu faith. He comes from Batticaloa District in Sri Lanka. He arrived in Australia as an unauthorised maritime arrival on 17 August 2012 and applied for a Safe Haven Enterprise Visa (SHEV) on 13 September 2015. On 27 May 2016, a delegate of the Minister declined to grant him a visa because he did not meet the requisite criteria. That decision was reviewed and affirmed by the IAA. However, on 9 February 2017 the FCC, with the consent of the parties, declared the IAA’s decision to be void and of no effect. It was quashed and the matter remitted to the IAA for redetermination according to law.

6    Prior to the second determination of the IAA, the appellant was once against invited to submit any additional material on which he relied. He was informed that additional material would only be considered if the requirements of s 473DD of the Migration Act were satisfied. Pursuant to that invitation the appellant, by his representatives, sent several documents containing further information. The present appeal concerns the determination by the IAA not to consider one of those documents; being a letter from a Dr Hughes of 28 February 2017.

Second Decision of the IAA

7    The appellant advanced a number of claims for protection to the IAA, which can be summarised as follows:

(a)    That he faced a real chance of serious harm if he were forced to return to Sri Lanka because of his past political involvement in the activities of the Liberation Tigers of Tamil Eelam (LTTE), his previous arrests at the hands of the Criminal Investigation Department or Karuna Group, the association of his relatives in that group or his relatives’ political activities, the authority’s view that he comes from an LTTE family, or his political opinions regarding support for and commemorating Tamil martyrs.

(b)    In the alternative, that all of those factors place him at risk of facing serious harm as a necessary and foreseeable consequence of being removed from Australia to Sri Lanka.

8    In accordance with the orders of the FCC, the IAA reconsidered the decision of the Minister/delegate and, on 18 April 2017, affirmed it. The reasons given by the IAA were of considerable length, running to 114 paragraphs of careful analysis of the material and claims before it. Those reasons show the existence of the following events relevant to the matters in issue:

(a)    That the IAA had before it the material referred by the Secretary under s 473CB of the Migration Act, which included submissions provided by the appellant’s former representatives dated 26 May 2016.

(b)    It had obtained the most recent DFAT country report for Sri Lanka. It was acknowledged this was not available at the time of the decision of the delegate. However, because it was from an authoritative source, the delegate had relied upon an earlier DFAT report, and DFAT’s assessment was prepared specifically for the purpose of protection status determination, it was accepted these were “exceptional circumstances” justifying consideration of it as “new information” pursuant to ss 473DC and 473DD of the Migration Act.

(c)    The IAA received a submission and further information from the appellant’s then representative and, to the extent to which the submissions discussed the evidence, before the delegate, including Country Information and responded to the delegate’s decision, those documents were not held to constitute “new information” and could be considered.

(d)    The IAA considered that new Country Information was provided to it by the appellant in the form of photographs, records and a report but decided it had not been established that this information could not have been provided to the delegate. Further, it had not been shown the information could be regarded as credible personal information not known prior to the delegate’s decision, nor was it established that, if it had been known, it may have affected the consideration of the appellant’s claims (see s 473DD). For that reason, “exceptional circumstances” had not been established justifying its reception.

(e)    The IAA rejected various photographs sent by the appellant who said he believed they had been destroyed, but were subsequently located. These were said to be relevant to the claim that he had been involved with the LTTE. However, the IAA determined he had not explained why, given he knew the delegate had concerns about his alleged political activities, they could not have been supplied between the SHEV interview in November 2015 and the delegate’s decision six months later. Moreover, the photographs did not appear to assist the appellant’s case.

(f)    On 10 March 2017, the appellant’s representative emailed further information to the IAA. Specifically, photographs of persons the appellant claimed were related to him and members of the LTTE, a photograph of the appellant at an LTTE event, various other documents in Tamil, some with accompanying English translations, a complaint made recently to the Sri Lankan police in Tamil, evidence of complaints made to the New South Wales Police regarding threats to the appellant, a statutory declaration from the appellant dated 25 February 2017, letters issued by the TMVP, with accompanying English translations, and a letter from a Dr Hughes dated 28 February 2017.

(g)    The IAA accepted further submissions from the appellant dated 12 March 2017. On the basis that they discussed the evidence, including Country Information, which had been before the delegate and in response to the delegate’s decision based on that material, they were not “new information”. They also responded to the DFAT 2017 report which came into existence after the initial decision and so could not previously have been provided to the delegate. The IAA held there were “exceptional circumstances” to justify reception of the submissions.

(h)    The photographs and accompanying information all related to events prior to the appellant’s arrival in Australia. The IAA decided that because the appellant was aware of the need to provide all information to the delegate, it was not satisfied the information was credible personal information, or that it could not have been provided prior to the delegate’s decision. It followed that there were no “exceptional circumstances” to justify its reception and consideration.

(i)    The IAA held that the letter from Dr Hughes dated 28 February 2017, was new information which post-dated the delegate’s decision. The letter referred to an examination of the appellant on the day it was dated and recorded he had scarring on his arms and in his anus consistent with his history. The letter also set out the history given to the doctor – claims made by the appellant that pre-dated the delegate’s decision. The IAA identified the history recited in the letter was inconsistent with the appellant’s claims and he had not explained why the examination by Dr Hughes could only take place after the delegate’s decision. It was not satisfied there were “exceptional circumstances” to justify consideration of the letter.

(j)    The IAA accepted information from the appellant in the form of a statutory declaration concerning threats of violence against him when he was in Sri Lanka and threats of violence against him in Australia. There is no challenge to the acceptance of this information.

(k)    English translations of letters written in Bengali on TMVP letterhead, which were before the delegate on 10 March 2007, were not regarded as new information.

9    After dealing with the above issues the IAA turned its attention to the merits of the review. In general terms, its reasons identified serious concerns about the appellant’s credibility and the veracity of the majority of his protection claims. It set out the general nature of the claims and then identified the inconsistencies, variations and changes in the several statements made by him which called into question their veracity. It considered the claims that he had been arrested, beaten and tortured and found they were implausible. In particular, it was unlikely he was able to escape from detention or that, after fleeing the country to Singapore, he then returned to Sri Lanka through the ordinary channels.

10    The IAA also noted a wide variety of changes to the appellant’s evidence about his living arrangements. He regularly registered his address with the local police and this was inconsistent with the assertion he had escaped detention. It was also inconsistent with the claim he was hiding from the police. As a result of the significant changes, inconsistencies and implausibility of his evidence, the IAA found him not to be a credible witness. It found he was prepared to exaggerate, embellish and fabricate aspects of his evidence in order to enhance his claims for protection. The IAA did not accept he was arrested, questioned and tortured. It gave adequate reasons as to why it reached that conclusion.

11    It did, however, identify that, from 2013, he had consistently maintained the claim that he was tortured by being hit with boots and with ice being placed in his anus. He had consistently claimed the sequelae of the ice torture still caused him pain today and he claimed he had regularly informed the Department, or those interviewing him, of the difficulties associated with that torture, but was too embarrassed to mention it expressly. The IAA was concerned that, regardless of his embarrassment, there was insufficient explanation for his failure to mention any ongoing symptoms arising from that problem to his doctors prior to the delegate’s determination.

12    The IAA also noted some consistency in the appellant’s evidence about his being arrested but it also noted he claimed to have been released and so those claims became incredible. It considered certain documents alleged to be letters from the Karuna Group on TMVP letterhead, but ultimately doubted the veracity of those letters.

13    In summary, the IAA rejected the appellant’s claimed grounds for a protection visa based on his alleged adverse interactions with Sri Lankan authorities. At [39] of its reasons it said:

Given the inconsistencies, changes, implausibility and credibility issues with the applicant’s evidence, and notwithstanding that some of his supporting documentation such as the history recorded in his medical records in 2013 may be seen as providing a level of corroboration, based on the totality of his evidence, I reject the applicant’s claim that he was arrested, questioned and tortured by the CID and Karuna Group on 12 June 2012. I do not accept that he or his family received the letters with TMVP letterhead from the Karuna Group or CID.

14    The IAA did not accept the appellant was of any adverse interest to either the Sri Lankan authorities or to the Karuna Group, because of any alleged links to the LTTE or any imputed political views.

15    The appellant claimed he feared harm from the Sri Lankan authorities because of his family’s links with the LTTE. He asserted his maternal grandmother’s sister was a famous Tamil non-violent protestor and an uncle had been killed because he was a Tamil. He also claimed his father’s business was targeted because he was a Tamil. At the SHEV interview he claimed he had worked for the LTTE in peacetime. He had not mentioned this in his bio-data and arrival interviews. He said he did not disclose this earlier because he was fearful of doing so lest the Sri Lankan authorities become aware of it. The IAA found that explanation to be disingenuous because he subsequently acknowledged the Sri Lankan authorities were already aware of his work for the LTTE.

16    The IAA determined the appellant was not politically active in the way he claimed and he was not of adverse interest to the Sri Lankan authorities before or after he left Sri Lanka because of any links to the LTTE or for other imputed political opinions. It was not satisfied the appellant, or his immediate family, were ever of adverse interest to, or targeted by, the Sri Lankan authorities on that basis.

17    The IAA also considered the appellant’s claims that he was threatened by other Tamil people in Australia. Whilst it accepted that some threatening conduct occurred, it determined much of the appellant’s claim to be fabricated or embroidered. It found he was not a credible witness and he had consistently demonstrated a willingness to fabricate, exaggerate and/or embellish his evidence in order to boost his protection claims. It also found his attendance at Martyr’s Day rallies in Australia were for the purpose of strengthening his claims to be a refugee.

18    In consequence of those findings the IAA determined it was not satisfied the appellant would, as he claimed he would, participate or involve himself in Martyr’s Day or similar activities in Sri Lanka if he returned.

19    The IAA then turned its attention to the Country Information relating to the situation in Sri Lanka in the post-war period and the position of persons there with known or imputed LTTE links. It concluded the appellant was not at risk of harm now, or in the reasonably foreseeable future, by reason of any links to the LTTE or any imputed political opinion. That was for a number of reasons which the IAA identified. They included that merely residing in an LTTE controlled area did not give rise to a need for protection; the appellant’s uncle had been killed about 30 years ago; he was able to travel to and from Singapore and Malaysia in 2010 without being stopped or questioned by authorities at the airport; he had never been arrested, questioned, detained or harmed by the authorities; and, his family has not been questioned about his whereabouts since he left Sri Lanka. Whilst the IAA accepted the appellant attended Martyr’s Day events in Australia, it was not satisfied those activities were other than for the purposes of strengthening his refugee claim.

20    As a result of the above findings the IAA concluded that the appellant did not satisfy the Convention grounds, or the complementary protection grounds. Similarly, it concluded his circumstances would not satisfy the convention grounds or the complementary protection grounds by reason of him being a failed asylum seeker or his illegal departure from Sri Lanka. The IAA also considered the cumulative effect of the appellant’s circumstances as a whole and concluded he did not satisfy the Convention grounds for the granting of a protection visa on that basis either.

21    Finally, the IAA considered separately whether the appellant was entitled to a protection visa on the complementary protection grounds. Taking into account its previous findings, it held there were no substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to Sri Lanka, there was a real risk he would suffer significant harm. For that reason he did not meet the requirements in s 36(2)(aa) of the Migration Act.

Decision of the Federal Circuit Court

22    The thrust of the argument before the FCC was that the IAA committed a jurisdictional error by failing to determine “exceptional circumstances” existed to enable the letter from Dr Hughes to be considered. At the hearing of the application for review before that Court, the solicitor for the appellant identified the issue as being whether the letter from Dr Hughes was wrongly excluded because the IAA misconstrued and misapplied s 473DD. In particular, the question was whether the IAA considered s 473DD(b)(ii) and asked itself whether the letter contained credible personal information not previously known and, were it known, may have affected the consideration of the appellant’s claims.

23    The primary judge concluded that, on a fair reading of the IAA’s reasons, it had considered all elements of the tests for the reception of new information and did not misconstrue the section. Unfortunately, he did not explain why.

24    A further ground before the FCC was that the IAA had no regard to the content of corroborative material, specifically translations of the alleged TMVP letters. Those letters were purportedly from the TMVP Group, and the appellant claimed their receipt and content gave rise to a fear of harm. The primary judge concluded that the IAA took the nature, content and quality of the TMVP letters fully into account. Again, his Honour did not explain how that was done. This matter was not pursued on this appeal and rightly so given it lacked any merit.

25    Finally, the appellant claimed the letter from Dr Hughes was not “new information” and ought not to have been classified as such. It was argued it was merely corroborative of evidence advanced previously. The primary judge determined the letter was correctly identified as new information and no jurisdictional error arose. This ground was also not advanced on appeal.

The issue before this Court

26    The issue in this matter concerns the nature of the additional material the appellant referred to the IAA and, in particular, the letter from Dr Hughes which, importantly for present purposes, identified that the appellant had scarring on his anus. That letter, the appellant alleged, was corroborative of his allegations of torture and ought to have been considered by the IAA as “new information”.

27    The ground of appeal is stated in the amended Notice of Appeal and reads:

His Honour erred in failing to discern jurisdictional error in circumstances where the IAA breached s 473DD of the Migration Act 1958 (Cth) in dealing with the letter of Dr Hughes of 28 February 2017 when determining whether “exceptional circumstances” existed by effectively failing to take into account the matters referred to in s 473DD(b)(ii) of the Act

Consideration

Correction of error

28    It is to be kept steadily in mind that this Court has no original jurisdiction in most matters arising under the Migration Act and, especially, in relation to the decisions of the IAA. As Bromwich J eloquently put it in CVS16 v Minister for Immigration and Border Protection [2018] FCA 951, [15] (CVS16):

While this Court may be called upon to form its own view as to what transpired before the Authority, this may only be done in the context of the need to find error on the part of the primary judge. This Court has no original jurisdiction in most migration matters, including judicial review of decisions of the Authority, and therefore no business reconsidering the Authority’s reasons as though it was conducting judicial review at first instance, effectively overlooking the vitally important role of the primary judge. This particularly important manifestation of the role of this Court in migration appeals from the Federal Circuit Court is supported by both long-standing and current authority: see the Full Court decision in Sathiyanathan v Minister for Immigration and Multicultural Affairs [2000] FCA 210 at [10]; see also SZJHE v Minister for Immigration and Citizenship [2008] FCA 1771 at [6]–[8]; CNN15 v Minister for Immigration and Border Protection [2017] FCA 579 at [13]–[14]; and DPE16 v Minister for Immigration and Border Protection [2018] FCA 61 at [11]. As Flick J pointed out in BGZ15 v Minister for Immigration & Border Protection [2017] FCA 1095 at [8], taking such an approach impermissibly reduces proceedings before the Federal Circuit Court to a “preliminary skirmish”, as decried in Coulton v Holcombe (1986) 162 CLR 1 at 7.

29    The decision of the primary judge disclosed a clear error, being the failure to provide any reasons for the conclusion that the IAA had correctly applied s 473DD when refusing to take into consideration Dr Hughes’ letter. That issue was an important part of the appellant’s case and he was entitled to be provided with reasons as to why it did not succeed. The Minister adopted the very proper position of not suggesting the decision of the FCC contained any such reasons and it was accepted by all parties that a sufficient error existed so as to enliven the power of the Court to consider the correctness of the IAA’s reasons. The manner in which the primary judge dealt with this issue is set out in more detail below. Further, and regardless of the question of the adequacy of the reasons on this topic, the primary judge also erred in accepting the IAA had applied the correct test under s 473DD when determining whether exceptional circumstances applied in relation to Dr Hughes letter.

The statutory scheme

30    The operation of Part 7AA has now been assayed in various cases and there is no need to repeat it here. Generally, however, the “fast track” process expedites the review of delegates’ decisions “on the papers” and without recourse to further information or a hearing. The IAA has no power to grant protection visas, but merely to affirm the decision to refuse a visa or refer the matter back to the Minister for further consideration: CVS16, [4]. In BVD17 v Minister for Immigration and Border Protection [2018] FCAFC 114, the Full Court (Flick, Markovic and Banks-Smith JJ) carefully set out the operation of Part 7AA and at [31] summarised it in the following passage:

In summary, the scheme of Pt 7AA is that, except in limited circumstances, the Authority must review de novo a fast track decision referred to it on the papers, those papers being the review material provided to it by the Secretary of the Department, and conduct that review without accepting or requesting new information or interviewing the referred applicant. It may receive and take into account confidential information the subject of a Certificate and has a discretion as to whether to use such information or disclose it to the referred applicant. That is the nature of the statutory scheme against which issues of legal unreasonableness are to be considered.

31    A question may exist as to whether the Secretary may give to the IAA pursuant to s 473CD(1) material not before the Minister/delegate as “review material” which is not then required to satisfy the “new information” provisions in s 473DC. That is a most unlikely construction of Part 7AA, although it seems some accept that this might be so. That issue does not arise in this case where the “new information” was sought to be included in the IAA’s review by the visa applicant.

32    The provisions relevant to the introduction of new information to the IAA are ss 473DC and 473DD. They provide:

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.

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.

33    It should be noted that s 473DD has a differential application depending on whether the information in question was given to the IAA by the referred applicant or acquired by the IAA on its own initiative. The provisions of s 473DD(b) are only applicable to the former circumstance. They do not have any direct relevance to new information obtained by the IAA independent of the applicant. It is, therefore, unlikely both limbs of s 473DD(b) must always be applicable to a consideration of whether there are “exceptional circumstances” justifying the consideration of new information.

Did the contents of Dr Hughes’ letter contain “new information”?

34    The majority of Dr Hughes’ letter consists of a recital of the appellant’s history as it was, apparently, relayed to him. At the end of the letter, in two short paragraphs, the doctor stated the results of his medical examination being:

On examination, he has a healed laceration on his left proximal forearm on the medial aspect which is two centimetres long and is consistent with the history of a deep knife injury.

Anal examination revealed a scar consistent with the trauma with a piece of ice just as he described. He occasionally blacks out as a consequence of the injury to the back of his head from kicking.

35    In the reasons of the delegate dated 27 May 2016, reference is made to the appellant’s claim, first advanced in 2013, that he was tortured in 2012 and, in particular, by having a block of ice inserted into his anus. He clarified that it was not an ice cube but rather a block of ice. So, as at 27 May 2016 when the delegate made his decision, there existed a claim by the appellant that he had been tortured by having a block of ice inserted in his anus and that claim had been maintained since 2013. The import of Dr Hughes’ letter is that it identified the appellant had scarring in his anus consistent with the trauma he had described. It may be the existence of this scarring was previously known to the appellant although there is no evidence to that effect and neither he, nor his advisers, sought to assert the same to the IAA.

36    The IAA dealt with the application of s 473DD to Dr Hughes’ letter in the following way:

13.    The letter from Dr Hughes dated 28 February 2017 was not before the delegate and is new information. The letter post-dates the delegate’s decision, and refers to an examination of the applicant by the doctor on the day it is dated and records the applicant has scars on his arm and in his anus that are consistent with the applicant’s history. The letter also sets out the history the applicant gave to the doctor and it, that all pre-dates the delegate’s decision and among other things, says that the applicant was accused of being a member of the LTTE who was helping with burying corpses and that his photograph has been circulated by the Sri Lankan authorities at the airports. This is inconsistent with the applicant’s claims for protection. The applicant provided other medical records to the delegate in December 2015 following the SHEV interview. The applicant has not explained why the examination by Dr Hughes could only take place after the delegate’s decision. I am not satisfied there are exceptional circumstances that justify considering the doctor’s letter.

37    In effect, it observed the letter post-dated the delegate’s decision, as did the examination of the appellant by the doctor. The history given by the appellant recorded in the letter also pre-dated the delegate’s decision and was to some extent inconsistent with other evidence given by the appellant. The IAA also expressed concern that the appellant had not explained why the examination by Dr Hughes could only take place after the delegate’s decision.

38    As to the IAA’s application of s 473DD to the letter, the totality of the primary judge’s reasons are that:

[59]    In relation to Ground 4, Mr Hodges argued that the Authority had failed to have regard to the second limb of s 473DD, and that, particularly, there was no reference to credible personal information in assessing whether the Authority had had regard to both limbs of s 473DD in considering the doctor’s report.

[60]     Furthermore, on a fair reading of the Authority’s reasons, there is no basis for inferring that the authority failed to have regard to both limbs of s 473DD in determining whether or not the letter from Dr Hughes dated 28 February 2017 was one to which the Authority should have regard.

39    Unfortunately, the primary judge did not identify how it could be ascertained the IAA had regard to both limbs of s 473DD in considering whether the letter was information to which it could have regard. Counsel for the Minister could not identify any basis for the conclusion on this important issue in the reasons for judgment.

40    His Honour apparently perceived that the IAA had intended to take into account both limbs of s 473DD(b) on the basis that they were each relevant to the decision of whether “exceptional circumstances” existed. This, it can be inferred from his Honour’s reasons, was not a case where the IAA did not find that the two limbs were not relevant to the question, but was a case where it had concluded that it was appropriate to take them into account. Indeed, he found they were taken into account. No Notice of Contention under r 36.24 of the Federal Court Rules 2011 (Cth) was filed in an attempt to uphold the primary judge’s decision on the basis that he could have found the IAA had not considered it necessary to take into account the two limbs when ascertaining whether “exceptional circumstances” existed. Nevertheless, that issue was fairly raised by the Minister in his written submissions and was appropriately before the Court.

The reasons of the IAA as to its findings of “exceptional circumstances”

41    An unusual aspect of the approach taken by this Court to its consideration of the Part 7AA regime is the conclusion reached in several decisions that there exists no requirement for the IAA to give any reasons as to why it might accept or reject further material as “new information” under s 473DD: CVS16 at [25] – [30] and BCQ16 v Minister for Immigration and Border Protection [2018] FCA 365. There is no need to consider the correctness of those decisions in this matter as here the IAA did provide reasons for its refusal to consider Dr Hughes’ letter. However, many cases before the IAA are likely to be affected by information proffered as “new information”, or “confidential information” under Division 6 of Part 7AA. The exclusion of a Chapter III Court from considering the exercise of powers, or discretions, that directly affect the validity of the exercise of ultimate powers is, arguably, antithetical to the obligation of such a Court to ensure the Executive acts within legislated boundaries. Indeed, such an interpretation may hinder the Court from fulfilling its Constitutional obligation.

Was the correct test for determining “exceptional circumstances” applied?

42    As the Minister correctly submitted the requirements of s 473DD(a) and (b) are cumulative. Each must be satisfied before the IAA can consider new information it has acquired or has been provided: Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 353 ALR 600. Although that is not directly relevant for present purposes.

43    The essential question here is whether the IAA erred by concluding s 473DD(a) had not been satisfied because there were no “exceptional circumstances” that justified the consideration of Dr Hughes’ letter. It was argued that, in determining whether “exceptional circumstances” existed, the IAA was also required to consider whether the letter contained “credible personal information which was not previously known and had it been known, may have affected the consideration of the … applicant’s claim” and it did not. To put it another way, the argument was that the IAA committed a jurisdictional error in its assessment of the existence of “exceptional circumstances” by failing to ascertain the extent to which the two limbs of 473DD(b) had been satisfied, especially the second.

The relevance of the two limbs of s 473DD(b)

44    The basis for the appellant’s argument is found in a number of cases including the recent Full Court decision in Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110 (CQW17), (McKerracher, Murphy and Davies JJ). There, the Court considered in detail the reasons of White J in BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958 and the cases which have followed them. Their Honours expressed support for White J’s reasons and clarified their application. The appellant relied upon a large portion of the Full Court’s reasons and it is appropriate to set out the relevant parts:

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

[48] In BVZ16 White J said (at [9]):

The requirements of subparas (a) and (b) are cumulative but may nevertheless overlap to some extent. The Authority’s satisfaction that the new information could not have been provided to the Minister at the time of the s 65 decision (subpara (b)(i)) may contribute to its satisfaction that there are exceptional circumstances to justify considering the new information. So also may the Authority’s satisfaction that the new information is credible personal information which had not previously been known (subpara (b)(ii)). Accordingly, one would expect the IAA to consider the subpara (b) matters when considering in a given case whether the circumstances are exceptional. Obviously enough, however, the matters which may contribute to a finding that the circumstances in a particular case are exceptional may extend beyond those specified in subparas (b)(i) and (ii) and it seems improbable that the Authority could be satisfied, by reference to one matter only, that an applicant’s circumstances are not exceptional. (Emphasis added.)

His Honour’s view was affirmed in BBS16 at [102]–[103] (Kenny, Tracey and Griffiths JJ) and cited with apparent approval by the Full Court in CHF16 at [17]–[18] (Gilmour, Robertson and Kerr JJ) and DYS16 at [31]–[33] (Tracey, Murphy and Kerr JJ).

[49] In BBS16 the Full Court said:

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

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

(Emphasis added)

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

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

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

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

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

45    The discussion by the Full Court identifies that there will be occasions when the satisfaction or non-satisfaction of the two limbs of s 473DD(b) will inform the determination of whether exceptional circumstances exist to warrant the consideration of new information. That appears to be self-evident. If the information in question has the characteristic that it could not have been provided to the Minister previously or is credible personal information not previously known that might affect the decision, it would, in nearly all scenarios, add to the conclusion that it is “out of the ordinary” or “unusual”. However, it is also clear that the wide scope of the expression “exceptional circumstances” means that it will not be necessary on every occasion to consider the criteria of the two limbs of s 473DD(b). This was made clear in AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111 (AQU17), which was a decision of the same Full Court that decided CQW17 and handed down the same day. In that case their Honours said:

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

The meaning of “exceptional circumstances”

46    Having ascertained the procedure for determining what might amount to “exceptional circumstances”, it is appropriate to turn to the question of its meaning. In this respect the recent decision in AQU17 is most helpful. Their Honours at [13] recognised that the term is not defined and should be given its ordinary meaning, being a reference to circumstances which “may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon: BVZ16; Plaintiff M174.” Reference was also made to that part of the reasons of the plurality in Plaintiff M174/2016 v Minister for Immigration & Border Protection (2018) 353 ALR 600 being Gageler, Keane and Nettle JJ where at [30] their Honours cited with approval the following passage from R v Kelly [2000] QB 198, [51]:

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

47    In AQU17 their Honours held that when ascertaining whether exceptional circumstances exist an arbiter of fact may consider a combination of factors which, when viewed together, will satisfy the description, or consider one factor on its own as sufficient. The answer to the question is “fact specific” and depends upon the circumstances of each case. It is not irrelevant that in AQU17 the Court found the IAA had correctly approached the question of whether “exceptional circumstances” existed by considering both limbs of s 473DD(b). That conclusion was reached despite there being no express reference to the second limb because the IAA’s determination was plainly based upon such a consideration.

48    Nevertheless, the determination of what amounts to “exceptional circumstances” in any particular case is an evaluative exercise by the IAA and, generally speaking, each case will turn on its particular facts: AUH17 v Minister for Immigration and Border Protection [2018] FCA 388 at [32] (AUH17). Relevantly, the Full Court in AQU17 said as to the evaluative approach:

[17]    Nor, contrary to the appellant’s submissions, was the Authority obliged to evaluate the credibility of the new information or the significance of the new information to the appellant’s case beyond the consideration given, absent some feature or matter to cause, or which should have caused, the Authority to consider that there was something about the appellant’s case which made it unusual or out of the ordinary. Nor does it appear from the material that anything was put to the Authority about the appellant’s personal circumstances or reason for the later inconsistent account, which was potentially relevant to the issue of “exceptional circumstances”.

49    The Minister relied upon the last sentence as indicating that the applicant carried an onus to satisfy the IAA of the existence of “exceptional circumstances”. Whilst there is no need to determine the correctness of that submission, it can be accepted that in this case the appellant did not provide submissions to the IAA as to how or why there were “exceptional circumstances” to justify consideration of the information in the letter. Dr Hughes’ letter was merely sent under cover of a letter from the appellant’s legal advisers, together with a number of other documents, and no attempt was made to identify anything special about the manner in which it was obtained or the information it contained. On the other hand, the opinion of Dr Hughes upon examination of the appellant was self-evidently important information that did not exist previously.

Satisfaction of the criteria

50    The Minister submitted that Part 7AA is structured such that care ought to be taken before it is concluded that the facts surrounding the existence of “new information” can be regarded as being “exceptional circumstances”. This is based upon s 473DB mandating that the proceedings of the IAA are to be without neither new information nor any interview of the applicant. It is argued that the exception created by Subdivision C concerning “additional information” must, therefore, be read more strictly than might otherwise be the case. That submission should not be accepted. The regime regulating the conduct of the IAA must be read as a whole. Whilst there is no doubt that, as a general rule, its determinations are to be without additional information, the Legislature has seen fit to make exceptions to that rule and prescribed the identification of “exceptional circumstances” as being the occasion where that rule does not apply. The words of ss 473DC and 473DD are to be given their ordinary meaning as construed in accordance with legitimate canons of construction and, as such, they carve out from the general prohibition, the occasions when additional material can be considered. That, it appears, is made expressly clear by the use of the words that appear at the commencement of s 473DB: “Subject to this Part”. No exegesis needs be given to the direction of the Parliament as to when the general prohibition on the consideration of additional information is excepted.

51    Nevertheless, it can be accepted that the operation of s 473DD is conditional upon the IAA being satisfied of a number of matters. In s 473DD(a) there must be a satisfaction of the existence of “exceptional circumstances” and, when s 473DD(b) is considered, the applicant is required to satisfy the IAA that one or both of the limbs can be engaged.

Application to the present case

52    Here, the essential question is whether or not the IAA adopted an unduly narrow interpretation of the concept of “exceptional circumstances” when considering if exceptional circumstances existed in relation to the information contained in the letter from Dr Hughes? An answer to that question will appear from an analysis of the IAA’s reasons as to whether there were circumstances which took this case out of the usual or ordinary course so as to justify consideration of the new information.

53    The relevant information is contained in Dr Hughes’ letter, to which there were two parts. It included a recording of the appellant’s history as told to Dr Hughes which was, to some extent, inconsistent with several other versions of events the appellant had previously advanced. The letter also included Dr Hughes’ opinion based on an examination of the appellant. It is pertinent to note that Dr Hughes is a specialist surgeon and endoscopist. Of particular relevance was the opinion that the appellant had scarring in his anus. There is probably very little doubt that the information about the scarring was credible information and personal to the appellant and is consistent with his claim to having been tortured. That said, it does not by itself prove the appellant was tortured. It proves that he has scarring on that part of his body only.

54    A focus of the IAA’s consideration of Dr Hughes’ letter concerned the timing of the acquisition of the information in it. It observed that the examination of the appellant, and the doctor’s letter produced subsequently, both post-dated the delegate’s decision and that the letter contained a record of a history given by the appellant which was inconsistent, in some respects, with his prior claims. It then observed that the appellant had, in December 2015, provided other medical records to the delegate following his SHEV interview. It was apparent these made no reference to the anal scarring even though, as the IAA noted, he had claimed, since 2013, to have been tortured by having ice placed in his anus. The IAA then identified an absence of any explanation as to why the evidence had not been provided previously. It said, “The applicant has not explained why the examination by Dr Hughes could only take place after the delegate’s decision.”

55    Reading the IAA’s decision as a whole it is apparent it reasoned the claims about torture had been advanced for some significant period of time and the appellant, who might have assumed some physical manifestation of the torture may have remained, could have attended upon a specialist for examination and provided a report well before the delegate’s decision on 27 May 2016. Additionally, no reason was advanced as to why the appellant had not sought to have an examination earlier so that the information could have been provided to the delegate.

56    The IAA’s reference to that failure of is significant. It emphasised its concern about the delay and indicated that, in the absence of any explanation as to why the evidence was not obtained earlier, the failure to do so rendered the circumstances unexceptional. The IAA noted that the appellant had been represented at all relevant times during his visa application process. The IAA was also aware, as evidenced by its reasons, that the appellant had been given an opportunity in 2016 to present additional material to the IAA.

57    The Minister submitted that, when ascertaining whether “exceptional circumstances” existed, the IAA took into account the second limb of s 473DD(b). It was submitted that the reference in paragraph [13] of its reasons to the history given by the appellant to the doctor being inconsistent with his claims for protection, evidenced that. On its own, that submission would be difficult to accept. However, when consideration is given to the totality of the IAA’s reasons concerning which of the several pieces of new information would be considered, the reasons in paragraph [13] assume a different complexion. The appellant sent to the IAA a substantial amount of material prior to its initial decision in July 2016 and then more prior to the determination of 18 April 2017. In its reasons it considered in relation to each piece of new information whether “exceptional circumstances” existed to justify its consideration. In doing so, on four separate occasions it referred to both limbs of s 473DD(b), either in terms or by necessary implication, when considering that issue: see paragraphs [7], [8], [11] and [12]. It is difficult to imagine that the IAA did not have both of the limbs in mind when it considered whether “exceptional circumstances” existed in relation to the information in Dr Hughes’ letter. In these circumstances it can be accepted the IAA’s observation, that the history given by the appellant to Dr Hughes was inconsistent with earlier claims, shows that it considered the credibility of at least some of the information in the letter.

58    The difficulty is that the IAA did not expressly consider the credibility of the essential piece of information in Dr Hughes’ letter, being the information about the anal scarring. That scarring is, self-evidently, relevant to the appellant’s claim that he had been tortured by having a block of ice placed in his anus. Although Counsel for the Minister submitted that it was only probative of the existence of scarring and not of the torture, that submission must be rejected. Taken together with the appellant’s evidence of the nature of the torture inflicted upon him, the evidence of the scarring “tends towards proof” of the torture having occurred. At the very least it supported that claim.

59    Dr Hughes’ letter contained two separate and distinct pieces of information. First, was the appellant’s history as Dr Hughes recorded it. The second was the expression of Dr Hughes’ opinion of scarring on the appellant following his examination. The IAA considered whether there were exceptional circumstances in relation to the information relating to the history by taking into account both limbs of s 473DD(b). That was consistent with its treatment of other documents and information which had been provided to it. However, in relation to the information concerning Dr Hughes’ findings, it did not take into account the second limb being whether it was credible personal information not previously known and which might have affected the consideration of the appellant’s claim. Had it done so, it would have observed that the evidence of the anal scarring was supportive of the exact torture claim that had been rejected. Moreover, it would have recognised the rejection of the torture claim as having reduced the appellant’s reputation in the eyes of the delegate. The allegation of torture and the rejection of it was a significant part of the appellant’s claim.

60    The failure of the IAA to apply the second limb of s 473DD(b) when considering whether “exceptional circumstances” existed in relation to Dr Hughes’ opinion, demonstrates an error of law amounting to a jurisdictional error. The IAA determined, as it should have, to consider whether exceptional circumstances existed to warrant the consideration of the information in Dr Hughes’ letter and it did so properly in relation to the information concerning the appellant’s history. However, it did not do so in relation to Dr Hughes’ findings and opinions.

61    As an alternative, the Minister submitted there was no need in the present case to take into account the extent to which each and every piece of information in the letter satisfied the elements of s 473DD(b)(ii). Whilst there is some force in that submission, it cannot be accepted. Here, the medical opinion was undoubtedly credible personal information that might have affected the consideration of the appellant’s claim. It went to an important element of his claim. It was not a characteristic of the information able to be ignored in ascertaining if there were “exceptional circumstances”.

62    There are some similarities between this case and CHF16 v Minister for Immigration and Border Protection [2017] FCAFC 192 (CHF16), although it must be kept in mind that each case will turn on its own facts.

63    The necessary conclusion is that the IAA misapplied the test of whether “exceptional circumstances” existed in relation to the opinions expressed by Dr Hughes in his letter of 28 February 2017.

Materiality of any error

64    The Minister submitted that if there was an error in rejecting Dr Hughes’ letter, it would not amount to a jurisdictional error because it was not material and would not have altered the IAA’s decision. In doing so reliance was placed on the recent decision of the High Court in Hossain v Minister for Immigration and Border Protection [2018] HCA 34. The plurality (Kiefel CJ, Gageler and Keane JJ) said at [31]:

Thus, as it was put in Wei v Minister for Immigration & Border Protection, “[j]urisdictional error, in the sense relevant to the availability of relief under s 75(v) of the Constitution in the light of s 474 of the Migration Act, consists of a material breach of an express or implied condition of the valid exercise of a decision-making power conferred by that Act”. Ordinarily, as here, breach of a condition cannot be material unless compliance with the condition could have resulted in the making of a different decision.

65    The comments of Edelman J (at [72]) indicated a slightly more robust approach to determining whether an error was sufficiently material to establish jurisdictional error:

72 In summary, although the issue will always be one of construction of the express or implied terms of the statute, an error will not usually be material, in this sense of affecting the exercise of power, unless there is a possibility that it could have changed the result of the exercise of power. In other words, materiality will generally require the error to deprive a person of the possibility of a successful outcome. There may be unusual circumstances where an error is so fundamental that it will be material whether or not a person is deprived of the possibility of a successful outcome. One circumstance, for reasons that could include respect for the dignity of the individual, may be an extreme case of denial of procedural fairness. Another may be the circumstance discussed by Nettle J, where a decision maker fails to exercise jurisdiction to decide a question according to the applicable criterion. No such circumstances arise on this appeal.

(Footnotes omitted).

66    These two approaches converged in the even more recent decision of the High Court in Nobarani v Moriconte [2018] HCA 36. There the Court (Kiefel CJ, Gageler, Nettle, Gordon and Edelman JJ) edged closer to the test preferred by Edelman J in Hossain. In the joint judgment of the Court, it was held:

38    The catch-all, “on any other ground”, includes circumstances of a denial of procedural fairness. Those circumstances were not encompassed by the equivalent South Australian rule that was in force at the time of this Court's decision in Stead v State Government Insurance Commission. Nevertheless, the common law applied in that case, and the earlier case of Balenzuela v De Gail, contains an equivalent requirement to a "substantial wrong or miscarriage" before the power to order a new trial would arise. That requirement, reflected also in the usual requirement before an error will be considered to be jurisdictional and certiorari will lie, is that the error must usually be material in the sense that it must deprive the party of the possibility of a successful outcome. As this Court said in Stead:

All that the appellant needed to show was that the denial of natural justice deprived him of the possibility of a successful outcome. In order to negate that possibility, it was, as we have said, necessary for the Full Court to find that a properly conducted trial could not possibly have produced a different result.

    (Footnotes omitted).

67    Here, the alleged error related to the matters of which the IAA ought to have had regard when determining whether there were “exceptional circumstances” so as to warrant the consideration of Dr Hughes’ medical opinion. It follows that the question to be determined is, if the IAA had considered the credibility of the evidence and whether it might have affected its ultimate conclusion, would that possibly have affected its conclusion as to the existence of “exceptional circumstances”.

68    In relation to the issue of materiality, the argument before the Court from both parties wrongly focused on the outcome of the actual review by the IAA, whereas the alleged error primarily concerned the exercise of the power under s 473DD. Only after consideration of that matter can the exercise of power under s 473CC be considered.

69    For the reasons identified above, the correct application of the test for “exceptional circumstances” may well have caused the IAA to consider the medical opinion. Upon such consideration the IAA might have accepted the appellant’s claims of torture, which it had hitherto disbelieved, and remitted the application back to the Minister/delegate. It cannot be said that the error was not material because it could not possibly have produced a different result.

Conclusion

70    It follows from the above that the application for review to the FCC ought to have succeeded in that the primary judge ought to have found that the IAA had misapplied the statutory test in s 473DD for whether exceptional circumstances existed and ordered that a writ of certiorari issue to quash its decision.

71    The appellant ought to have leave to file the amended notice of appeal, the appeal should be allowed and the matter must be remitted to the IAA for determination according to law.

72    The Minister must pay the appellant’s costs of the appeal.

Associate:

Dated:    7 September 2018