FEDERAL COURT OF AUSTRALIA

ERN17 v Minister for Immigration and Border Protection [2018] FCA 1672

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs as agreed or assessed.

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

REASONS FOR JUDGMENT

(Revised from Transcript)

THAWLEY J:

1    The appellant did not appear before the Court at the hearing of this appeal. The Minister tendered correspondence written to the solicitor on record for the appellant, none of which was responded to. The Minister made an application for the appeal to be dismissed pursuant to r 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth). Having considered the merits of the appeal, the preferable course is to deliver reasons dealing with the merits. I note this course was adopted by Flick J in ADF15 v Minister for Immigration and Border Protection [2018] FCA 1099.

2    The appellant appeals from a decision of the Federal Circuit Court of Australia dismissing his application to that court for judicial review of a decision of the Immigration Assessment Authority.

3    The appeal is based on one ground, supported by five particulars:

The IAA fell into jurisdictional error in its erroneous application of section 473DD of the Act.

Particulars

…

a.     Section 473DD of the Act relates to when the IAA [Authority] can consider new information in exceptional circumstances;

b.     Section 473DD state that the IAA must not consider any new information unless … (a) there are exceptional circumstances AND (b) the referred applicant satisfies the IAA that the new information could not be provided to the delegate before he/she made a decision and that the new information is credible personal information;

c.     Section 473DD only relates to new information provided to the IAA by the referred applicant;

d.     At (5), the IAA fell into jurisdictional error in applying the “exceptional circumstances” test from s473DD to allow itself to consider a recent DFAT report published on 24 January 2017 that was not before the delegate at the time of making the decision; and

e.     Section 473DD permits the IAA to consider new information that is not provided by the referred applicant, but it ought to have given the new information identified as “new country information regarding Tamils and Sri Lankan returnees” to the referred applicant so that the referred applicant could comment on the new information in accordance with s473DE.

4    This ground is the same as that advanced before the Federal Circuit Court.

LEGISLATIVE CONTEXT

5    The provisions of most relevance to the appeal are ss 473DC, 473DD and 473DE of the Migration Act 1958 (Cth). 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.

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.

CONSIDERATION

6    The reasons given by the Federal Circuit Court were contained in three paragraphs:

20.    Ground 1 paragraph (a) to (d) advances an alleged error by taking into account the updated DFAT country information report in finding that there were exceptional circumstances to consider the same under s 473DD of the Act. The updated country information report was country information the Authority was entitled to take into account under s 473DE(3)(a) of the Act. The footnoted references to the 2017 report do not support any finding that the information in the 2017 report engaged any obligation under s 473DE of the Act.

21.    It was open on the material before the Authority to take into account the new country information report and to find there were exceptional circumstances to consider that new information. No jurisdictional error as alleged in the Authority exercising its power under s 473DD of the Act is made out.

22.     In relation s 473DC of the Act, the Authority had identified, taking into account DFAT country information report of 2015 and the updated report of 2017, was one in respect of which there is no identified information referred to in that report by reason of which it could be said to be legally unreasonable that the Authority had failed to consider to exercise its powers under s 473DC of the Act. Further, no submission was advanced to the Authority requesting the Authority to consider the exercise of its power under s 473DC of the Act in taking into account that new country information. No jurisdictional error is made out by grounds 1(a) to (d) or by ground 1(e).

7    The reasons at J[20] reveal a misunderstanding of the statutory scheme. Section 473DE is directed to when the Authority must afford a referred applicant an opportunity to comment on new information which the Authority has considered or will consider. The “entitlement” (to adopt the primary judge’s terminology) of the Authority to consider new information is dealt with by s 473DD, not s 473DE(3)(a).

8    Paragraph J[21] contains a simple denial of the existence of the asserted error. It contains no reasoning. It is not clear what is meant by the formulaic expression: “It was open on the material before the Authority”. If the primary judge intended to justify his conclusion by reference to particular material, he should have identified the material and explained why that identified material lead to the conclusion reached. The reasons for the conclusion in J[21] are also not explained outside of J[21].

9    Notwithstanding these matters, the appeal should be dismissed for the following reasons:

(1)    Particulars (a), (b) and (c) do not purport to identify any error. These particulars also reveal an incorrect understanding of the statutory scheme. Section 473DD does not apply only to new information provided by the referred applicant. The section applies to any new information. Section 473DD(b) applies only to new information provided by a referred applicant, but s 473DD(a) applies to any new information whether or not provided by a referred applicant: CIH16 v Minister for Immigration and Border Protection [2018] FCA 1317 at [33].

(2)    Particular (d) is not made out. In circumstances where the delegate had relied upon a report prepared in 2015 by the Department of Foreign Affairs and Trade (DFAT) and an updated DFAT report had become available in 2017, it was open to the Authority to conclude that there were “exceptional circumstances” justifying it considering the updated country information: BDF17 v Minister for Immigration and Border Protection [2018] FCCA 2095 at [91]. This was not an unduly broad interpretation of what might constitute “exceptional circumstances”. The circumstances were sufficiently out of the ordinary to warrant the description “exceptional circumstances” – see: Plaintiff M174/2016 v Minister for Immigration & Border Protection (2018) 92 ALJR 481 at [30]; AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111 at [13]-[14].

(3)    Particular (e) is not made out. The Authority was not required to give particulars of the 2017 DFAT report to the appellant under s 473DE(1), nor to take the other steps contemplated by that section, including inviting him to comment, because s 473DE(1) does not apply to new information that is not specifically about the referred applicant and is just about a class of persons of which the referred applicant is a member: s 473DE(3)(a); CMY17 v Minister for Immigration and Border Protection [2018] FCA 1333 at [46]; EKW17 v Minister for Immigration and Border Protection [2018] FCA 1366 at [17]-[20].

10    It was not contended that there was jurisdictional error in failing to consider exercising the discretion under s 473DC to obtain new information from the appellant, by – for example – unreasonably failing to consider inviting him to give any document or information concerning the 2017 DFAT report – see: CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641. Nonetheless, I have considered that question by reference to the Authority’s written statement of decision and the principles discussed in CCQ17 and was not able to discern any jurisdictional error.

CONCLUSION

11    The appeal must be dismissed with costs.

Associate:

Dated:    5 November 2018