FEDERAL COURT OF AUSTRALIA

DSD16 v Minister for Immigration and Border Protection [2018] FCA 1782

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The costs of the appeal be assessed on a lump sum basis.

3.    If the parties agree on a lump sum figure in relation to the respondent's costs, they are to file a joint minute of proposed orders.

4.    In the absence of any joint proposed order:

(a)    within 28 days, the first respondent file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Courts Costs Practice Note (GPN-COSTS).

(b)    within 28 days thereafter, the appellant file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of GPN-COSTS; and

(c)    the matter of an appropriate lump sum figure for the first respondents costs be referred to a Registrar for determination.

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

REASONS FOR JUDGMENT

COLVIN J:

1    The Minister's decision to refuse to grant the appellant a protection visa was affirmed by the Immigration Assessment Authority on 8 November 2016. His application to review the Authority's decision in the Federal Circuit Court was unsuccessful. He now brings an appeal in this Court.

2    Before the Authority, the appellant sought to rely on new information that included three documents. Section 473DD of the Migration Act 1958 (Cth) limits the circumstances in which the Authority can consider new information. Two requirements must be met before the Authority can do so. First, the Authority must be satisfied that there are exceptional circumstances to justify considering the new information: s 473DD(a). Second, the applicant before the Authority must satisfy the Authority that the new information either (i) was not and could not have been provided to the Minister before the decision on the visa application; or (ii) is credible personal information not previously known and had it been might have affected the consideration of the applicant's claims: s 473DD(b).

3    For the appellant it is said that the Authority approached the issue whether it was prohibited by s 473DD from considering the three documents on the wrong legal basis.

4    The sole ground of appeal is to the effect that the primary judge erred in failing to find that the Authority applied the wrong legal approach in forming the view that it was not satisfied there were exceptional circumstances. Quite properly, it is accepted by the Minister that if the Authority was found to have applied the wrong legal approach when evaluating whether it held the required states of satisfaction specified in the two requirements then that would amount to jurisdictional error. However, The Minister says that the primary judge found correctly that there was no such error.

5    For the following reasons the Minister's submissions should be upheld and the appeal should be dismissed with costs.

The two requirements in s 473DD

6    The two requirements to be met in order for the prohibition under s 473DD to apply to new information are separately stated. The section does not require a judgment to be formed taking into account both requirements or by balancing them. They are cumulative requirements: AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111 at [13]. If one requirement is not met, then the new information must not be considered. There is no need to go on and consider whether the other requirement is met: AUH17 v Minister for Immigration and Border Protection [2018] FCA 388 at [26] and BPC16 v Minister for Immigration and Border Protection [2018] FCA 920 at [98].

7    However, it does not follow that factual matters relied upon to satisfy the Authority that the new information is credible personal information that may have affected the outcome (being one means of satisfying the second requirement) are irrelevant and should not be considered when evaluating whether there are exceptional circumstances to justify the consideration of the new information (being the first requirement), or vice versa. As to that point, in CHF16 v Minister for Immigration and Border Protection [2017] FCAFC 192, a Full Court of this Court reserved the question for another day, stating at [46]:

Whether it is possible, as a matter of substance in a given case, to consider all exceptional circumstances without considering whether the new information could not have been provided to the Minister before the Minister made the decision or was credible personal information not previously known which may have affected the consideration of the claims, we prefer to leave to a case in which it is necessary to decide it.

8    Since then, the point has been considered in other cases.

9    In BZV16 v Minister for Immigration and Border Protection [2017] FCA 958; (2017) 254 FCR 221, White J expressed the view that the two requirements 'are cumulative but may nevertheless overlap': at [9]. That view was approved and applied in Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 at [102].

10    Further, in forming a view whether it is satisfied that there are exceptional circumstances the Authority undertakes an evaluative judgment: Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 at [75]. To 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': Plaintiff M174/2016 at [30]. Plainly, whether that is so depends upon the particular circumstances and the evaluation of those circumstances is entrusted to the Authority by the requirement that it be satisfied as to the exceptional character of the circumstances.

11    In a particular case, a view as to whether information is credible and of a kind that may have affected the consideration by the Minister of the applicant's claims may be relevant to whether there are exceptional circumstances. For example, highly credible or incontrovertible material dealing with a particular issue relevant to the application may make it exceptional. It is in that sense that the two requirements overlap. Indeed, in Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110 at [51], it was said that matters relevant to the second requirement will usually form part of the consideration of all relevant circumstances required for the purposes of forming the state of satisfaction as to whether there are exceptional circumstances for the purposes of the first requirement. Even so, 'it is a misconception that the factors in s 473DD(b)(i) and (ii) 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': AQU17 at [14].

12    As a result it would be wrong for the Authority to approach the task of considering whether it had reached the required state of satisfaction that there are exceptional circumstances on the basis that anything to do with whether the information is credible personal information (or was not or could not be provided to the Minister before the decision on the visa application) was irrelevant or only to be considered when evaluating whether the second requirement was met.

13    On the other hand, there is no error in the Authority forming the view that it is not satisfied that there are exceptional circumstances and on that basis finding that the prohibition on considering the new information applies without considering whether the second requirement in s 473DD is met.

14    Further, in a case where matters relating to credibility that were evidently relevant to whether there were exceptional circumstances (such as in the case of my example about incontrovertible material) then a failure by the Authority to consider that matter when forming a view whether it was satisfied that there were exceptional circumstances may show that the Authority has approached the matter on the basis of a misunderstanding as to what s 473DD provides and therefore has made a decision that is reviewable for jurisdictional error.

The reasons of the Authority

15    The Authority described the nature of the three documents relied upon as new information. No issue is taken with the description. It was set out at para 6 as follows:

Attached to the submission were copies of three documents: The first is a translated letter from the Colombo Criminal Investigation Department (dated 12 November 2015) to the local police requesting the applicant present at their office in respect of an enquiry. The second is a letter from a Justice of the Peace (dated 10 December 2015) in the applicant's area attesting that the applicant had been accused of helping the LTTE, was badly assaulted several times and that according to the applicant's wife, since his departure, police, army and unidentified armed men have been coming in search of, and threatening to harm, the applicant. The third is a letter from an attorney in Jaffna district (dated 15 February 2015) attesting that the applicant was forced to help the LTTE, and that due to this LTTE activity he arrested several times, detained, threatened and badly assaulted and that since his departure, the applicant's wife has been harassed several times and that she is subject to worsening threats.

16    For the appellant it was submitted that the Authority's description of the documents was no more than a recitation and did not reveal any consideration of the contents. Reliance was placed upon CQW17 for the submission that a restatement or bare description of documents does not reveal any consideration by reference to relevant matters of the kind required to form the state of satisfaction. However, I would distinguish the present case from an instance where there was simply a restatement. The way the documents were described by the Authority was to focus upon the key content of the documents that was relevant to the way the appellant had supported his application for a visa. The matters described were then deployed in what followed as the Authority considered matters that arose from the nature of the contents of the documents. Therefore, this is not a case where the Authority simply described the documents and did no more.

17    Having referred to those three documents the Authority said: 'I note that the applicant has never claimed that he was arrested, nor that his wife has been subject to threats'. That observation is plainly a reference to a matter bearing only on the third document. For the Minister it was properly conceded that was the case. It is an observation based upon the other records available to the Authority as to the claims made by the applicant to that time. It reflects an engagement with the content of the document in the context of the claims advanced by the appellant before the Minister for the purpose of addressing the question whether there were exceptional circumstances. No complaint is made about the correctness of the observation.

18    Further, the nature of the observation indicates that the Authority is considering matters relating to credibility of the content of the document. The Authority did not simply observe that the information was new. The way which the observation is expressed (namely, 'the applicant has never claimed') is the usual manner in which such a matter may be expressed when considering whether the information is credible or reliable.

19    In context, the fact that no equivalent observation is made about the other two documents does not establish that the Authority did not consider matters relevant to the credibility of those documents or the information within them. It indicates no more than a view by the Authority that no similar comment could be made about the contents of those other two documents. In other words, it indicates a view by the Tribunal that those documents were consistent with the appellant's accounts up to that time and therefore that was not a matter that weighed against their credibility.

20    Then the Authority dealt with other matters as follows in para 7:

The applicant claims these letters were not previously available to him when the case was presented to the delegate. While I am prepared to accept that the applicant may not have had these documents in his possession earlier, no explanation has been provided as to why he had not been able to obtain them earlier, particularly given they pre-date the delegate’s decision by eight to eighteen months and all also predate the application. The referred material also does not show the applicant had indicated to the delegate that he was seeking to obtain further evidence, or indeed that his wife was being threatened or that he had previously been arrested.

21    These observations concern, at least in part, matters that would be relevant also to the question whether the second requirement had been met by reason of the terms of s 473DD(b)(i). This is significant because it is a further demonstration that the Tribunal is not excluding the consideration of information on the basis that it is only relevant to the second requirement and therefore is not to be considered on the question whether there are exceptional circumstances.

22    The Authority then concluded that that there were no exceptional circumstances to justify the consideration of the three documents.

23    So, the Authority has only considered, as to the three documents, whether they met the first requirement and has found that they do not. However, in doing so consideration has been given to material that would also be relevant to whether the second requirement is met. For reasons I have given adopting such an approach was consistent with the terms of s 473DD and did not indicate an incorrect legal understanding of how the provision applied.

24    For the appellant it was submitted that the consideration by the Authority had focussed only on the 'temporal issue' as to why the documents had not been provided earlier and there was a failure to engage with the question of exceptional circumstances beyond that aspect. In particular, it was submitted that the final sentence of para 6 was not a consideration of the credibility of the documents or the information within them. In my view, the Authority was not confining its consideration in the manner submitted. It was not limiting its consideration to whether there had been an explanation for delay. It was observing that the fact that one document raised matters that had not been advanced before and there was no explanation as to why the documents were not previously provided were reasons why exceptional circumstances had not been demonstrated. The reason those observations were significant because they were matters that affected the credibility of the documents and the information within them.

25    Therefore, the Tribunal was not confining its consideration in the manner submitted and was applying the appropriate legal approach. It is not for this Court to consider whether, applying that approach, it would be satisfied that there were exceptional circumstances or indeed whether there are other aspects that the court may bring to account in forming a view on that topic. It is the satisfaction of the Authority on which the qualifications to the prohibition on new information depend.

No error by the primary judge

26    The primary judge considered the authorities, reviewed the reasons of the Authority and reached the conclusion that there was no jurisdictional error because the reasons of the Authority showed that it was evaluating the weight of material as part of its determination as to whether there were exceptional circumstances: at [39]. For reasons I have given, there has been no error demonstrated in the conclusion reached by the primary judge.

Conclusion

27    The appeal should be dismissed with costs.

Associate:

Dated:    20 November 2018