FEDERAL COURT OF AUSTRALIA

FOF17 v Minister for Immigration and Border Protection [2019] FCA 100

ORDERS

THE COURT ORDERS THAT:

    The appeal be dismissed.

    The appellant pay the first respondent’s costs of the appeal to be assessed in default of agreement.

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

REASONS FOR JUDGMENT

WHEELAHAN J:

Introduction

1    The appellant has brought this appeal against orders of the Federal Circuit Court of Australia dismissing his application to that court for judicial review of a decision of the Immigration Assessment Authority (the Authority). The Authority had affirmed a decision of a delegate of the Minister to refuse the appellant a Safe Haven Enterprise visa.

2    In brief, the appellant challenges the primary judge’s rejection of a ground of review that was directed to the Authority’s decision not to consider certain information in documents that the appellant had sent to the Authority which had not been before the delegate. That decision raised the operation of s 473DD of the Migration Act 1958 (Cth). The appellant alleges that the Authority fell into jurisdictional error by treating non-compliance with a Practice Direction of the Authority as alone being determinative of its inability to consider the information.

Background

3    The appellant is a citizen of Sri Lanka of Tamil ethnicity who arrived in Australia by boat in October 2012. On 6 June 2016, the appellant lodged an application for a visa. On 29 March 2017, a delegate of the Minister refused the appellant’s application. As the delegate’s decision was a “fast track reviewable decision” for the purposes of Part 7AA of the Migration Act, the delegate’s decision was referred to the Authority as required by s 473CA of the Act. On 30 November 2017, the Authority determined to affirm the decision of the delegate not to grant the appellant a protection visa.

4    In support of the review of his application, the appellant sent further submissions to the Authority. One submission dated 8 May 2017 was accompanied by four single-paged documents that were identified as documents translated into English from Tamil. It is evident from the Authority’s reasons that the Authority determined not to consider the information in these documents. One of the two grounds of review before the Federal Circuit Court challenged the Authority’s decision not to consider the documents. That ground was rejected by the primary judge. Before this Court, the appellant challenges the primary judge’s decision in relation to two of the four documents, and maintains that the Authority fell into jurisdictional error in not considering the two documents.

Consideration by the Authority of new information

5    In order to evaluate the appellant’s case, it is necessary to refer to the statutory framework within which the Authority reviewed the delegate’s decision.

6    The delegate’s decision was subject to the terms of Part 7AA of the Migration Act, which provide for what the simplified outline in s 473BA of the Act describes as “a limited form of review” of a “fast track decision”. Under s 473CA of the Act the Minister must refer the decision to the Authority as soon as reasonably practicable after the decision is made. For a more complete description of the scheme established by Part 7AA of the Act, see Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 353 ALR 600 at [7]-[38].

7    Relevant to the present case is s 477DD of the Migration Act which mandates that the Authority is not to have regard to “new information” upon its review of a delegate’s decision unless the pre-conditions in that provision are engaged. 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.

8    The pre-condition in s 473DD(a) of the Act, namely that the Authority is satisfied that there are exceptional circumstances to justify considering the new information, must always be met before the Authority can consider any new information: Plaintiff M174/2016 at [29]. As to what are “exceptional circumstances”, in Plaintiff M174/2016 Gageler, Keane and Nettle JJ stated –

[30]    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”.

(footnote omitted)

9    In addition, s 473DD(b) sets out a further pre-condition that must be met before the Authority can consider new information given, or proposed to be given to it by the referred applicant, namely that the Authority must be satisfied of one or other of the circumstances set out in s 473DD(b)(i) and (ii): Plaintiff M174/2016 at [29], [31].

10    What amounts to “new information” takes its content from s 474DC of the Act, which 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.

11    In this case, it was not in issue that the two documents that were the subject of the appellant’s submissions on appeal contained new information.

12    It is also necessary to refer to s 473FB of the Migration Act concerning practice directions of the Authority, which provides –

473FB    Practice directions

(1)    The President may, in writing, issue directions, not inconsistent with this Act or the regulations as to:

(a)    the operations of the Immigration Assessment Authority; and

(b)    the conduct of reviews by the Authority.

(2)    Without limiting subsection (1), the directions may:

(a)    relate to the application of efficient processing practices in the conduct of reviews by the Immigration Assessment Authority; or

(b)    set out procedures to be followed by persons giving new information to the Authority in writing or at interview.

(3)    The Immigration Assessment Authority must, as far as practicable, comply with the directions. However, non-compliance with any direction does not mean that the Authority’s decision on a review is an invalid decision.

(4)    If the Immigration Assessment Authority deals with a review of a decision in a way that complies with the directions, the Authority is not required to take any other action in dealing with the review.

(5)    The Immigration Assessment Authority is not required to accept new information or documents from a person, or to hear or continue to hear a person at an interview, if the person fails to comply with a relevant direction that applies to the person.

13    Applicable to the Authority’s review in the present case was a five-page Practice Direction dated 6 February 2017 that was before the Court. Paragraphs 23 to 30 of the Practice Direction concern new information –

23.    We can only consider new information (information that was not before the Department) in very limited circumstances as set out in section 473DD of the Migration Act. We must be satisfied that there are exceptional circumstances to justify considering the new information provided by either you or the Department.

24.    If you want to give us new information, you must also provide an explanation in writing as to why:

•    the information could not have been given to the Department before the decision was made, or

•    the information is credible personal information which was not previously known and may have affected consideration of your claims, had it been known.

25.    Your explanation should be no longer than 5 pages and must accompany any new information you give to us. If you provide to us, or refer in your submission to any new information, your explanation must specify why that new information is relevant to the review.

26.    If you provide or refer to new information such as country information reports or media articles, you must provide a copy of that information or extract part(s) of the information on which you rely. You must identify the source of the information. Lists of publicly available documents or hyperlinks to publicly available documents are not acceptable.

27.    All documents that are not in English should be translated into English by a translator with a ‘Translator’ level accreditation from the National Accreditation Authority for Translators and Interpreters (NAATI). Both the documents and the translations should be provided.

28.    Any new information you give to us that we have not requested of you, must be given to us within 21 days of the date on which your case was referred to us by the Department. Any new information given to us by the Department that has not been requested, must also be given to us within 21 days of the referral.

29.    We may separately invite you to provide new information or to comment on new information that may be adverse to your case.

•    If we invite you to provide new information, you must provide that information within the period specified in the invitation.

•    If we invite you to make comments on new information, you must provide those comments within the period specified in the invitation.

30.    You do not need to give us any information or document that you previously gave to the Department.

14    Of particular relevance to the present case is paragraph 26 of the Practice Direction (set out above), which stated that the source of the new information must be identified.

The two documents relevant to the present case

15    The Authority’s reasons for deciding that it could not consider any of the four documents sent to it by the appellant with the submission of 8 May 2017 were as follows –

12.    The second IAA submission is accompanied by what it identifies as English translations of the “latest country information”. Contrary to the IAA’s ‘Practice Direction’, two of the translations do not specify the source of the information. Another two of the translations pre-date the delegate’s decision [29 March 2017], and as there is no explanation before me as to why they were not provided earlier, or how as general country information, they constitute credible personal information. For the reasons as given above, I am not satisfied exceptional circumstances exist to justify consideration of these four sources, nor has the applicant has not [sic] satisfied me as to either of the matters in s.473DD(b).

13.    One of the translations, an article from the ‘New Tamils’ news website, postdates the delegate’s decision and for that reason I am satisfied it could not have been provided any earlier. The article discusses the return of a particular Tamil person from Australia to Sri Lanka who had contact with an Australian media organisation. The article suggests that this led to the person and his family being abducted and tortured by the “army intelligence unit”. The article appears to make very specific claims regarding the mistreatment of this person, which are not substantiated in the article itself. I am not satisfied this article constitutes credible, personal information about the applicant and overall I am not satisfied that exceptional circumstances exist to justify its consideration.

16    The case below and the argument on appeal proceeded on the basis that the two translations that did not specify the source of the information that are referred to in paragraph [12] of the Authority’s reasons set out above were: (i) a document dated 15 April 2017 identified as having been translated on 6 May 2017 from Tamil and titled “We are detectives: Do not fight against us! There will be serious repercussions”; and (ii) an undated document also identified as having been translated on 6 May 2017 from Tamil and titled “Torture continues in the North and East”.

The decision of the Federal Circuit Court

17    Before the Federal Circuit Court the appellant advanced the following ground of review relating to the two documents, which was amplified by some particulars –

The IAA adopted an unduly narrow construction of s 473DD at paragraph [12] of the IAA decision in relation to the question of whether to consider new information provided by the applicant … in that the IAA confined its consideration to whether the applicant had complied with the Practice Direction. In so doing the IAA misconstrued its statutory task and constructively failed to exercise jurisdiction under s 473DD.

18    The primary judge rejected the ground of review for the following reasons –

17.    … I do not accept that the Authority conflated the task under s 473DD of the Act by taking into account the failure to identify the source of the information. That was a relevant consideration in relation to the matters under s 473DD of the Act.

18.    I do not accept the argument developed by Ms McNeil in her written submissions and orally that the Authority had determined the question of s 473DD(b) of the Act by reference to the Practice Direction. The Authority’s reasons, on a fair reading, do not support that contention. The Authority expressly referred to a consideration of whether the material was in existence before the delegate’s decision. In that regard it is apparent that there is an error in relation to the reference to two translations pre-dating the delegate’s decision. I do not regard that error as material or giving rise to any jurisdictional error in a determination under s 473DD of the Act. That is because it is apparent that the Authority was identifying the want of an explanation in respect of the material and that the Authority did take into account both limbs of s 473DD of the Act and the significance of the material in determining whether there were exceptional circumstances to justify consideration of the same.

19.    Notwithstanding the succinct and skilful argument of Ms McNeil, the Court finds the Authority did not confine its consideration to whether the applicant had complied with the Practice Direction and that the Authority did not misconstrue or fail to properly exercise its jurisdiction under s 473DD of the Act in relation to consideration and determination of whether the four translations met the requirements of s 473DD of the Act. …

The submissions on appeal

Submissions on behalf of the appellant

19    The sole ground of appeal relied upon by the appellant reflected the underlying ground that had been rejected by the primary judge. The appellant contended that the primary judge had erred in not finding that the Authority had confined its consideration to whether the appellant had complied with the Practice Direction.

20    Counsel for the appellant submitted that the appellant’s case depended upon establishing that the Authority, as a matter of fact, proceeded as if the non-compliance with the Practice Direction meant that exceptional circumstances under s 473D(a) of the Act were absent. Consequently, counsel submitted that it was necessary to understand which parts of paragraph [12] of the Authority’s reasons applied to new information that did not comply with the Practice Direction (Practice Direction information), and which parts of paragraph [12] of the Authority’s reasons applied only to the other two items of information.

21    At the heart of the appellant’s case was a submission that the Authority treated non-compliance with the Practice Direction alone as being definitive of the absence of exceptional circumstances, thereby preventing consideration of the documents by operation of s 473DD of the Act.

22    Counsel for the appellant referred to the statement in the third sentence of paragraph [12] of the Authority’s reasons that, “Another two of the translations pre-date the delegate’s decision, and as there is no explanation before me as to why they were not provided earlier…”. Counsel submitted that for the purposes of s 473DD(a) of the Act, this statement concerned the other information, and did not describe the Practice Direction information which was either undated or post-dated the primary decision and did not pre-date the decision. Counsel submitted that with respect to the Practice Direction information, the Authority mentioned only one matter as being relevant to the existence of exceptional circumstances for the purposes of s 473DD(a) of the Act, being the statement in the second sentence of paragraph [12] of the Authority’s reasons that, “Contrary to the IAA's Practice Direction two of the translations do not specify the source of the information”. Counsel submitted that the appellant’s case that the Authority treated non-compliance with the Practice Direction alone as being determinative was supported by the absence of anything else in paragraph [12] of the Authority’s reasons to indicate that the Authority had assessed the criteria in s 473DD(b) in relation to the Practice Direction information.

23    Counsel for the appellant made other submissions concerning the relationship between ss 473FB(5), 473DC and 473DD of the Act, including a submission that it would be it would be wrong and jurisdictionally erroneous for the Authority to proceed on the basis that, due to the contravention of the Practice Direction, there were no exceptional circumstances enabling acceptance and consideration of the new information.

24    Counsel for the appellant accepted his case hinged on the Court’s construction of paragraph [12] of the Authority’s reasons, and that if the Court was against the appellant in relation to the submissions advanced as to the proper understanding of paragraph [12] of the reasons, then the appellant’s points of law did not arise, and the appeal must fail.

Submissions on behalf of the Minister

25    In response, counsel for the Minister submitted that the Authority did not at [12] of its reasons confine itself to the appellant’s non-compliance with the Practice Direction in relation to the two relevant documents. Counsel submitted that the fact that the source of the alleged translations of country information was not identified as required by the Practice Note was potentially relevant to both limbs of s 473DD of the Act, and is not an irrelevant consideration. Otherwise, the Authority’s reasons indicated that it considered neither limb of s 473DD was engaged, as the primary judge had held at [18] of the reasons for judgment.

Consideration

26    I do not accept the appellant’s submissions as to how paragraph [12] of the Authority’s reasons is to be fairly understood. In my opinion, the Authority did not at [12] of its reasons refer to non-compliance with the Practice Direction simpliciter as being the relevant feature of the Authority’s consideration. Rather, it was the fact that the translations did not specify the source of the information that was material. The source of the information was potentially relevant to whether the information was credible for the purposes of s 473DD(b)(ii), and to whether there were exceptional circumstances for the purposes of s 473DD(a). The absence of an identified source was capable of bearing upon both issues because without an identified source all that the Authority had was two type-written pages. The third sentence of paragraph [12] indicates in a compendious way that in relation to each of the four documents neither s 473DD(a) nor (b) was satisfied “[f]or the reasons as given above”, which I take to refer to the absence of any identified source of the information in the undated and post-dated documents.

27    It follows that I do not consider that there was any error in the primary judge’s rejection of the appellant’s claim that the Authority had confined its consideration to whether the appellant had complied with the Practice Direction.

28    The appeal will be dismissed with costs.

Associate:

Dated:    12 February 2019