FEDERAL COURT OF AUSTRALIA

ARP18 v Minister for Home Affairs [2019] FCA 472

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the application to be taxed unless otherwise agreed.

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

REASONS FOR JUDGMENT

BURLEY J:

1.    INTRODUCTION

1    The appellant is a citizen of Sri Lanka who arrived in Australia as an unauthorised arrival in early 2013. In January 2017, he lodged an application for a class XE 790 Safe Haven Enterprise Visa. A delegate of the Minister for Immigration and Border Protection (as it then was) considered, and then refused the Visa on 30 May 2017. The decision of the delegate was reviewed by the Immigration Assessment Authority (IAA) pursuant to Part 7AA of the Migration Act 1958 (Cth) and, on 18 January 2018, the authority affirmed the decision of the delegate.

2    The appellant then applied to the Federal Circuit Court of Australia (FCCA) for a review of the IAA’s decision. On 18 June 2018, the FCCA dismissed that application; ARP18 v Minister for Home Affairs [2018] FCCA 2143.

3    On 28 June 2018, the appellant filed a notice of appeal in this Court from the decision of the FCCA. Shortly before the hearing, the notice was amended to take the following form:

1.    The Federal Circuit Court erred in finding that the Immigration Assessment Authority did not constructively fail to exercise its jurisdiction.

Particulars

(i)     The Authority refused, pursuant to s. 473DD, to consider all documents submitted by the Appellant by applying an unduly narrow interpretation of the term "exceptional circumstances" in that section.

  (ii)     The Court found at AB 516 [21]

"on a fair reading of the IAA 's reasons for refusing to have regard to the new information, it considered whether exceptional circumstances existed to have regard to this new information for the purposes of s473DD(a)"

and went on to say at [23]

"It is plain that the IAA understood, and applied in substance, section 473DD. That it did not expressly refer to the statute in making each finding, is not indicative of jurisdictional error of the kind identified in BVIZ6 (supra) or at all".

2.    The Federal Circuit Court erred in finding that the IAA did not err by failing to consider whether an International Treaty Obligations Assessment had been made.

Particulars

(i)     The letter from an officer of the First Respondent's department AB 501 states

"The department will assess any implications for you personally as part of its normal processes”.

(ii)     There is, therefore, a reasonable inference that the assessment was done.

(iii)     The Authority at CB 487 [38] considered what would happen to the Appellant on his return to Sri Lanka. There was no consideration of this assessment.

(iv)    There is, therefore, a reasonable implication that the assessment was not before the Authority.

(v)     It, therefore, appears that the Authority was not provided with the letter or any document or information concerning the International Treaty Obligations Assessment.

(vi)    Where the Authority is aware, or should be aware, that it has not been provided with all the relevant material, it cannot be the case that it can simply ignore the Secretary's failure. It should have sought the letter and assessment under s. 473DC.

(vii)    The Federal Circuit Court erred in finding at CB 532 [32] that

"I do not accept that any such claim fairly arose on the material before the Authority in the circumstances of the present case."

(viii)     The Federal Circuit Court also erred in finding that the Authority's analysis of the Appellant's circumstances at CB 486 [36]-[38] included any analysis which could have been included in the assessment.

4    The appellant was represented by Turner Coulson Immigration Lawyers, who filed written submissions in advance of the hearing. The Minister was represented by Mr J Kay Hoyle, of counsel, who also filed written submissions and, subject to the question of costs, consented to the filing of the amended notice of appeal as set out above. Following the hearing, the appellant provided the Court with the decision of the Full Court in EVS17 v Minister for Immigration and Border Protection [2019] FCAFC 20 (Allsop CJ, Markovic and Steward JJ). The parties were invited to provide a short submission as to the relevance of that decision. On 22 February 2019, counsel for the Minister provided a submission.

5    It will be seen that the grounds of appeal focus attention on the alleged failure of the IAA to have regard to “new information” within s 473DD of the Act (ground 1) and an alleged failure to consider whether an International Treaty Obligations Assessment (ITOA) had been made (ground 2).

6    The Minister contends that the appeal should be dismissed, but also relies on a Notice of Contention in which he contends that the decision of the FCCA should be upheld on the following further ground:

Insofar as the Federal Circuit Court found that in the circumstances the failure of the Secretary to provide to the Authority a letter dated 14 March 2014 from the first respondent to the appellant (the "data breach letter") constituted a breach of s.473CB(l), the Court erred. The Federal Circuit Court ought to have found that:

a.     The data breach letter was not before the delegate and did not form part of the applicant's claims;

b.     The data breach letter was not relevant to the review;

c.     By reason of (a) and (b), there was, contrary to the finding at [33] of the judgment, no breach of s.473CB(l)(c) of the Act.

2.    THE DECISION OF THE IAA

7    The present appeal does not concern the detailed findings of the IAA insofar as it involved the rejection of the claims made by the appellant, but rather focuses on information that the IAA is said to have failed to consider. In this regard, it is convenient to set out in full the reasoning of the IAA in relation to the information to which it had regard.

3.    I have had regard to the material given by the Secretary under s.473CB of the Migration Act 1958 (the Act).

4.     On 26 June 2017 the IAA received a submission on behalf of the applicant, in so far as it engages in legal argument regarding the delegate’s decision, it is not new information and I have had regard to it.

5.     The submission includes the claim that the Ealam People’s Democratic Party (EPDP) suspected the applicant was using his role in a youth organisation to fundraise for the LTTE. I note in his statement of claims the applicant said his friends from the youth organisation told him the EPDP made inquiries about him and were suggesting he was an LTTE supporter who was using his role with the youth organisation to promote the LTTE cause and recruit followers. The claim regarding the suspected fundraising activities of the applicant was not before the delegate and is new information. No explanation has been provided in the submission as to why this claim is only being made now, or why it should be considered by the IAA.

6.    I note the applicant had assistance from a solicitor to prepare his statement of claims, and was represented by the solicitor at the SHEV interview. The applicant was given ample opportunity to raise his claims, including being told at the beginning of the SHEV interview of the importance of providing complete information, and that he may not have another chance to provide further information in support of his claims. The fact that this issue is only being raised now, having regard to those circumstances, raises questions as to the veracity of the claim. I am not satisfied there are exceptional circumstances to justify consideration of the new claim.

7.     The submission includes additional information regarding a Hindu festival the applicant claims to have participated in on 27 November 2012. The information provides further details regarding the name of the festival, and the date it occurred on in 2012 based on the Tamil solar calendar. The information was not before the delegate and is new information. The applicant has not satisfied me either of the matters in s.473DD(b) are met with regard to this additional information. Furthermore, it is not apparent to me on the information before me that there are exceptional circumstances to justify considering the information.

8.     The submission also includes a number of additional documents. The first two documents are printouts from Internet sites regarding the date of Karthigai deepam festival in 2012. It is not clear when the information was published. The documents do not contain information that could be described as personal information. The applicant has not satisfied me either of the matters in s.473DD(b) are met with regard to these additional documents. I am not satisfied there are exceptional circumstances to justify considering the information. With regard to the additional three documents, the submission indicates that after the decision to refuse his protection visa the applicant contacted his parents in Sri Lanka. Prior to this time he had not spoken to his parents for about one year because his parents decided it was best they did not speak with him as he would get very distressed about the phone calls. On hearing the news about the refusal of the visa his parents made the decision to supply the applicant with some additional documents.

10.     The first document purports to be a letter, dated 20 June 2017, from Jaffna Teaching Hospital regarding treatment the applicant’s mother has received for mental health issues since 2013 as a result of harassment related to army intelligence searching for her son. The letter is not on official letterhead, it is unsigned, the letter writer is not identified, and the applicant is not identified by name in the letter as the person who was being searched for. The letter is dated after the delegate’s decision and on its face could not have been provided before the delegate made the decision, although I note it is clear the applicant’s mother has been receiving treatment since 2013, and no similar documentation was provided prior to the delegate’s decision. Having regard to this and the contents of the letter, I am not satisfied there are exceptional circumstances to justify considering this document.

11.     The second document purports to be a letter of support, dated 21 June 2017, from a member of the Northern Provincial Council detailing the issues for the applicant’s family in Sri Lanka as a result of the applicant’s adverse profile. The letter describes the applicant’s brother’s work for a political party during the election time and threats to him from security forces. The letter also indicates the applicant was “assaulted and handled” by the Army, Intelligence and EPDP in the beginning of 2013 “due to certain reasons”, and that security forces are in search of the two brothers and often visit their parents. The letter is dated after the delegate’s decision and on its face it could not have been provided before the delegate made the decision, although I note the letter deals with events that occurred well before the date of the letter. I note the letter writer has provided no information regarding the source of the information provided in the letter, and I am not satisfied the writer has any direct knowledge about events concerning the applicant or the applicant’s parents. The applicant has not satisfied me s.473DD(b) is met. The letter appears to have been created at the behest of the applicant in support of his application, and I have been provided with no reason why a similar letter of support could not have been sought earlier. I am also not satisfied there are exceptional circumstances to justify considering this document.

12.     The third document purports to be a Warrant of Arrest in the applicant’s name for suspicion of supporting the LTTE, issued on 17 July 2013. The submission indicates the applicant’s parents received the document following the applicant’s departure from Sri Lanka. No information has been provided as to precisely when and how the applicant’s parents came into possession of the document. Given the applicant departed Sri Lanka in May 2013, and the applicant has indicated he was only recently out of contact for one year, the applicant has not satisfied me the document could not have been provided prior to the delegate’s decision. In addition, I find it entirely implausible that this important document would not have been brought to the applicant’s attention, particularly given the potentially serious consequences to the applicant. I also note the poor quality of the document. The applicant has not satisfied me as to either of the matters in s.473DD(b). I am also not satisfied there are exceptional circumstances to justify considering the document.

8    The claims made by the appellant were summarised by the IAA as follows:

(1)    On 27 November 2012 the appellant was detained by the Sri Lankan army for lighting candles at the front of his house on a Hindu festival day, which coincided with LTTE Martyrs Day. He was beaten and accused of supporting the LTTE;

(2)    his motorbike was confiscated by the army one day whilst he was riding to class, however, with police assistance it was returned to him;

(3)    Sri Lankan authorities visited his home on numerous occasions making enquiries about him and his involvement with the LTTE. He was regularly harassed by the army and, as a result, went into hiding and stayed at friends’ homes at night;

(4)    in January 2013 the EPDP made enquiries with two of his friends who were in the youth organisation to which he belonged and accused him of supporting the LTTE;

(5)    he departed Sri Lanka using a valid passport in May 2013 and made his way to Australia by boat from Indonesia;

(6)    Sri Lankan authorities continued to make enquiries about him after he had departed Sri Lanka; and

(7)    if he is returned to Sri Lanka, he fears he will be arrested, detained and harmed or killed by authorities at the airport or by authorities or parliamentary groups in his home area, because they suspect he is involved with the LTTE. He believes he will be suspected of having something to hide because he left Sri Lanka after the EDEP enquired about him, and also that there will be suspicion about him because he has been away from the country for so long.

9    In relation to the claim referred to in (1) above, the IAA found that the appellant had provided consistent evidence concerning the Hindu festival of lights which coincided with LTTE Martyrs day. It accepted that he was detained, assaulted and questioned about the lighting of lamps and regarding any support that he gave to the LTTE. However, it rejected the claims made set out in (3) and (4) above, variously finding them implausible or representing embellished evidence made in support of his claims for protection. The IAA did not accept that the appellant was of interest to authorities prior to his departure from Sri Lanka. Whilst the IAA accepted that the appellant had departed Sri Lanka in the terms set out in (5) above, it rejected the appellant’s claim that he was a person of interest after his departure. After considering country information available to it, the IAA found that it was not satisfied that the appellant faces a real chance of harm on the basis of his Tamil ethnicity.

10    The IAA noted that the appellant does not claim to have left Sri Lanka illegally, but rather departed Colombo using a valid Sri Lankan passport. It is material to the grounds of appeal to identify how the IAA addressed the appellant’s claim that, if he is returned involuntarily to Sri Lanka, he will be arrested, detained and harmed or killed by the authorities. The IAA found:

37     Information from DFAT indicates all involuntary returnees undergo checks on arrival in Sri Lanka, including by the State Intelligence Service and the [Criminal Investigation Department (CID)]. For those travelling on a temporary travel document, as would be the case for the applicant, investigation is undertaken to confirm identity, which often includes an interview, contacting authorities in their home area, and neighbours and family, and checking criminal or court records, a process that can take several hours. According to DFAT all returnees are treated according to standard procedures irrespective of ethnicity, and are not subject to mistreatment during processing at the airport. DFAT acknowledges they are aware of a small number of allegations of torture or mistreatment raised by asylum seekers who have returned to Sri Lanka, however the reports cannot be verified as many of the allegations were made anonymously, often to third parties, and sometimes long after the torture is alleged to have occurred. Since 2009 thousands of asylum seekers have been returned to Sri Lanka, from countries including Australia, and there have been relatively few allegations of torture or mistreatment. Therefore, DFAT assesses the risk of torture or mistreatment for the majority of returnees is low, and continues to reduce. The country information in the referred material indicates those returnees who are mistreated are predominantly people suspected of having substantial links to the LTTE, or to separatist activities such as criticising the government, rather than relating to being a failed Tamil asylum seeker.

38.    I accept the Sri Lankan authorities may infer the applicant sought asylum in Australia due to the manner of his return. I accept some asylum seekers with actual or perceived links to the LTTE may be at risk of harm during arrival processing. I have found the applicant would not be of adverse interests to authorities on his return to Sri Lanka, and I do not consider the applicant faces a real chance of harm for being a Tamil who sought asylum in Australia, or because he spent a period of time in Australia.

11    The IAA concluded that it was not satisfied that the appellant met the requirements necessary for the grant of the Visa.

3.    THE DECISION OF THE FCCA

12    The appellant was represented by a solicitor before the FCCA. The grounds of review relied upon were as follows:

1.     The Authority constructively failed to exercise its jurisdiction.

Particulars

The Authority refused, pursuant to s 473DD, to consider documents submitted by the Applicant. In doing so it applied an unduly narrow interpretation of the term "exceptional circumstances" in that section.

2.    The Authority acted unreasonably, or constructively failed to exercise its jurisdiction, in not ensuring that it had been provided all relevant documents under s 473CB to enable it to exercise its jurisdiction to review the delegate's decision, including the outcome, if any, of an International Treaties Obligation Assessment in relation to the Applicant, and then to invite the Applicant to comment on those documents or that information.

Particulars

The Applicant's personal information had been made public in an unauthorised manner by the Minister's Department in February 2014. The Authority did not consider whether an International Treaty Obligations Assessment had been carried out in respect of the Applicant following the breach, or if it had been carried out what the result had been.

13    In relation to ground 1, the primary judge noted that the appellant relied upon the decision in BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958; (2017) 254 FCR 221 for the proposition that the IAA had fallen into error in dealing with the new information before it. After summarising the detail of the argument, the primary judge’s reasoning was as follows:

[22]     The Authority’s reasons are not to be read with a keen eye for error in relation to the new information. It is clear from the Authority’s reasons at paragraph 5 and 6 that the Authority took into account the significance of the information. The identifying by the Authority of the significance of the information supports the Court finding that the Authority has had regard to both limbs of s 473DD(b) of the Act.

[23]     I do not accept that the Authority conflated the considerations under the two limbs of s 473DD(b) of the Act, nor does the reference to questions as to veracity of the claim in the Authority’s reasons suggest that the Authority approached the matter other than as a preliminary determination as to whether the applicant met the criteria under s 473DD of the Act. Indeed, the reference to questions as to veracity of the claim also supports the Court finding that the Authority understood and had regard to both limbs of s 473DD(b) of the Act.

[24]     I do not accept that the Authority conflated the alternative consideration under s 473DD(b) of the Act. The Authority’s reasons should be read as a whole. On a fair reading, the Authority’s reasons support the Court finding that the Authority did not misconstrue or misapply s 473DD of the Act, or adopt an erroneous meaning of exceptional circumstances, or fail to have regard to both limbs of s 473DD(b) of the Act. The determination of whether or not the new information the requirements under s 473DD of the Act was not flawed and there was no constructive failure by the Authority to exercise its jurisdiction as alleged in ground 1. No jurisdictional error as alleged in ground 1 is made out.

14    Ground 2 concerned a letter dated 14 March 2014 (the data breach letter) from the Secretary of the Department of Immigration and Border Protection to the appellant. It was entitled “unauthorised access to personal information” and informed the appellant that, in February 2014, a routine report released on the Department’s website unintentionally enabled access to some personal information about people, including the appellant, who were in immigration detention on 31 January 2014. This information was accessible online for a short period of time before it was removed from the department’s website. After apologising for the inadvertent potential unauthorised access to the personal information, the letter said:

The information that it was possible to access was your name, date of birth, nationality, gender, details about your detention (when you were detained, reason and where) and if you have other family members in detention.

The information did not include your address (or any form of address), phone numbers or any other contact information. It also did not include any information about protection claimed that you or any other person may have made, and did not include any other information such as health information.

The department will assess any implications for you personally as part of its normal processes. You may also raise any concerns you have during those processes.

15    The primary judge found (at [27]) that there was no ITOA assessment carried out and no further correspondence informing the appellant that there would be such an assessment. As a consequence, the primary judge held that the part of ground 2 founded upon the possibility of an ITOA assessment was not supported by any evidence and the hypothetical existence of material in relation to an ITOA assessment is not capable of making out any failure by the Secretary under s 473CB of the Act or any unreasonable failure by the IAA to consider exercising its powers under s 473DC of the Act.

16    The primary judge accepted the appellant’s submission that the data breach letter can be said to have been in the possession or control of the Secretary. However, the primary judge then relevantly found:

[31]     For the reasons earlier given, the hypothetical possibility of an ITOA assessment is not a matter that the letter proves and there is no basis to find that the Authority engaged in any illegal unreasonableness in failing to exercise a power under s 473DC of the Act in not seeking additional information about the data breach. Mr Jones submitted that it would have been apparent to the Authority that the applicant was in detention at the time of conducting the review and that accordingly, there was information before the Authority by reason of which the Authority should have exercised its powers to seek information about the data breach and any ITOA assessment.

[32]     I do not accept that the fact that the applicant was in detention at the relevant time gives rise, in the circumstances of the present case, to there being legal unreasonableness from the failure to consider or to exercise the power under s 473DC of the Act as advanced by Mr Jones. The position may have been otherwise had the applicant articulated an express claim relating to the data breach. That course was open to the applicant as a result of the letter sent by the Authority in relation to the review and no such claim was advanced. I do not accept that any such claim fairly arose on the material before the Authority in the circumstances of the present case.

[33]     Further, whilst I do accept that the letter objectively can be said to be relevant and, to that extent, find in favour of the applicant in that there was a breach of s 473CB of the Act by the Secretary that does not of itself give rise to disabling the Authority from conducting the review required under Part 7AA of the Act. The Court is of the view that the position in relation to the letter is similar to that where it is alleged that there has been overlooked a document in the course of the review. The test to be applied in that regard is whether the information is credible, relevant and significant in determining whether there has been a jurisdictional error.

…

[35]     The data breach letter on its face could only have significance in the circumstances of this case, in the absence of any other claim by the applicant, to the possible risk that authorities were aware that the applicant had sought asylum in Australia. That fact was taken into account in the Authority’s dispositive findings in respect of the applicant’s claimed fear of harm by reason of having sought asylum in Australia. Accordingly, the letter in the circumstances of the present case and the failure of the Secretary to provide the same to the Authority was not credible, relevant and significant information.

4.    RELEVANT LEGISLATION

17    The grounds of appeal give rise to consideration of the following provisions of the Act.

473CB        Material to be provided to Immigration Assessment Authority

(1)    The Secretary must give to the Immigration Assessment Authority the following material (review material) in respect of each fast track reviewable decision referred to the Authority under section 473CA:

(a)    a statement that:

(i)    sets out the findings of fact made by the person who made the decision; and

(ii)    refers to the evidence on which those findings were based; and

   (iii)    gives the reasons for the decision;

(b)    material provided by the referred applicant to the person making the decision before the decision was made;

(c)    any other material that is in the Secretary’s possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review;

(d)    the following details:

(i)    the last address for service provided to the Minister by the referred applicant for the purposes of receiving documents;

(ii)    the last residential or business address provided to the Minister by the referred applicant for the purposes of receiving documents;

(iii)    the last fax number, email address or other electronic address provided to the Minister by the referred applicant for the purposes of receiving documents;

(iv)    if an address or fax number mentioned in subparagraph (i), (ii) or (iii) has not been provided to the Minister by the referred applicant, or if the Minister reasonably believes that the last such address or number provided to the Minister is no longer correct—such an address or number (if any) that the Minister reasonably believes to be correct at the time the decision is referred to the Authority;

(v)    if the referred applicant is a minor—the last address or fax number of a kind mentioned in subparagraph (i), (ii), (iii) or (iv) (if any) for a carer of the minor.

(2)    The Secretary must give the review material to the Immigration Assessment Authority at the same time as, or as soon as reasonably practicable after, the decision is referred to the Authority.

Subdivision C—Additional information

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 Immigration Assessment 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 Immigration Assessment 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 Immigration Assessment Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

(b)    the referred applicant satisfies the Immigration Assessment Authority that, in relation to any new information given, or proposed to be given, to the Immigration Assessment 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.

5.    THE APPEAL

5.1    Ground 1

18    In ground 1, the constructive failure to exercise jurisdiction by the IAA alleged by the appellant concerns the refusal of the Authority to consider all of the additional documents that it considered fell within the definition of “new information”. The appellant contends that the FCCA erred in finding that the IAA did not constructively fail to exercise its jurisdiction.

19    In its written submissions, the appellant identifies four items of wrongly rejected new information; (a) a claim that the EPDP suspected the appellant was using his role in a youth organisation to fundraise for the LTTE (fundraising claim); (b) information regarding the 27 September 2012 Hindu festival that the appellant claimed to have participated in (festival information); (c) a letter of support dated 21 June 2017 from a member of the Northern Provincial Council (21 June 2017 letter); and (d) the 17 July 2013 Warrant for Arrest (Warrant). Broadly, the appellant submits that the rejection of each was based on a misapplication of the requirements of s 473DD of the Act because of a failure on the part of the Authority to recognise that the requirements of subsections 473DD(a) and (b) are cumulative but may nonetheless overlap to some extent, citing BVZ16 at [9]. The appellant also contends that the reasons provided by the primary judge were inadequate because they simply repeated matters of general principle without tying the principles to the finding of the Authority or the submissions advanced to it; BDS17 v Minister for Immigration and Border Protection [2018] FCA 1683.

20    The Minister defends the decision of the primary judge on the basis, broadly, that the IAA assessed the new information in each case by reference to a range of matters, notably the temporal aspects (whether the information was before the Delegate), the explanatory aspects (whether an explanation had been provided) and the probative significance of the material (whether the material was credible or capable of being believed). The Minister submits that the absence of reference to subsection 473DD(b) or extended consideration of the matters in subsection 473DD(b), is not determinative so long as the consideration of matters in subsection 473DD(a) engaged with the circumstances in which the material was provided, including the probative value of the material. In any event, the Minister contends that the matters in subsection 473DD(b) were considered, for example by reference to the veracity of the fundraising claims at paragraph [5] of the IAA’s decision and the fact that the information was not personal information (at paragraph [7] of the IAA’s decision).

21    In AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111, the Full Court (McKerracher, Murphy and Davies JJ) considered several recent decisions bearing upon s 473DD, including BVZ16. It summarised the effect of White J’s reasoning in that case as being that, whilst the requirements of subsections 473DD(a) and (b) are cumulative, they may nevertheless overlap and because subsections 473DD(i) and (ii) involve different considerations, both considerations are potentially relevant in considering whether the circumstances are “exceptional” and meet the requirements of subsection 473DD(a). The Full Court said at [13]:

As a matter of construction, it is undoubtedly correct that s 473DD(a) and s 473DD(b) are cumulative requirements. Section 473DD(a) imposes the requirement that the Authority must not consider new information unless it is satisfied that there are exceptional circumstances to justify considering the new information. Section 473DD(b) imposes the further requirement that the new information was not, and could not have been, provided to the Minister before the Minister made the decision to refuse to grant the protection visa (s 473DD(b)(i)) or is new information that 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 (s 473DD(b)(ii)). “Exceptional circumstances” is not a defined term for the purposes of s 473DD(a) and the words are to be given their ordinary meaning. In ordinary meaning, circumstances are “exceptional” if the circumstances may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon: BVZ16; Plaintiff M174. In Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 353 ALR 600] the plurality (Gageler, Keane and Nettle JJ with whom Gordon and Edelman JJ each agreed in separate reasons) observed at [30] in relation to the requirement in s 473DD(a):

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”.

The quotation is from R v Kelly at [51], which was also cited in BVZ16 for the meaning “exceptional circumstances” in the context of s 473DD(a). There may be a combination of factors which, when viewed together, constitute “exceptional circumstances”, or one factor of its own which may be sufficient for “exceptional circumstances” to exist. In each case, whether there are exceptional circumstances must depend on the particular circumstances of the visa applicant’s case.

22    The High Court refused the special leave application to appeal from the Full Court’s decision in AQU17; AQU17 v Minister for Immigration and Border Protection [2018] HCASL 327.

23    As the plurality in Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 353 ALR 600 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 subsections 473DD(b)(i) and (ii) of the Act must, in all cases, be considered by the Authority in deciding whether “exceptional circumstances” exist as subsection 473DD(b) does not codify what constitutes “exceptional circumstances”. Rather, subsection 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 subsection 473DD(a); Plaintiff M174 at [31]. In many cases consideration of the factors in subsections 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.

24    Having regard to these principles, I now turn to consider each of the items of new information identified by the IAA.

25    In the case of the fundraising claim, the IAA’s findings are at paragraphs [5] and [6], which are set out above. Whilst no specific reference is there made to s 473DD, it is apparent from later paragraphs that the IAA here addresses the requirements of that section. In paragraph [5], the IAA observed that no explanation had been provided as to why the claim was being raised late, or why it should be considered by the IAA. The former may be considered to go to the consideration in subsection 473DD(b)(i), the latter to the aspect of subsection 473DD(b)(ii) insofar as the question is how the information may have affected the consideration of the appellant’s claims. These points are developed in paragraph [6], where the IAA observed that the appellant had the assistance from a solicitor to prepare his initial claims and was represented by the solicitor at the SHEV interview, yet the additional information was only brought forward recently. Here, the IAA was engaging with the subsection 473DD(b)(i) requirement and considering whether the appellant had satisfied it that the new information could not have been provided before the Minister made the decision under s 65. The IAA then considered that the lateness also raises questions as to the veracity of the claim. This engages with subsection 473DD(b)(ii), as to whether it is credible personal information. Having regard to each of these matters, the IAA then concluded that it was not satisfied that there are exceptional circumstances to justify consideration of the new claim. This engages with the statutory question in subsection 473DD(a). No error is demonstrated in this approach.

26    The IAA then addressed the festival information in its reasons at paragraphs [7] and [8]. Three brief points may be made about this aspect of ground 1. First, the submissions advanced on behalf of the appellant before the primary judge indicate that the complaint arising from the refusal by the IAA to consider the additional festival information was abandoned. Secondly, the reason for that was that, as the submission said, the IAA accepted the appellant’s claim concerning the festival in its entirety and accordingly the failure to accept the additional festival information was irrelevant. This submission must be accepted. As much is apparent from the reasoning of the IAA at paragraph [18]. Thirdly, and in any event, the briefly expressed reasons of the IAA, taken in the context of the earlier paragraphs of its reasons, indicates that it did have regard to the proper considerations in determining that the circumstances did not warrant the inclusion of that information.

27    The IAA addressed the 21 June 2017 letter and the Warrant (as well as a letter dated 20 June 2017 from the Jaffra Teaching Hospital, which was identified as a fifth item of wrongly rejected new information in the FCCA appeal but not pressed in this Court) in its reasons at paragraphs [9] – [12]. Having regard to the principles relevant to the application of s 473DD as set out in AQU17, in my view the reasons of the IAA do not reflect the error asserted. In relation to each item of information, the IAA provided a brief summary of the nature of the information, reviewed its content, considered the circumstances in which it was provided and determined that the requirements of the section were not met.

28    Although not a ground of appeal, in his written submissions the appellant contends that the primary judge failed to give adequate reasons for his decision in relation to the alleged new information. It is true that the reasons given by the primary judge are brief. In particular, those reasons, whilst referring to the decision of the IAA at paragraphs [5] and [6] (which concern the new fundraising claim), do not go on and in terms refer to the balance of the complaints made concerning the new information, and in particular do not include specific findings in relation to the 21 June 2017 letter and the Warrant. However, as the Minister points out in his written submissions, this criticism is to be considered in the context of the way that the argument was put to the primary judge below. In his written submissions, the appellant contended before the primary judge that the errors of the IAA in respect of the 21 June 2017 letter and the Warrant were the same as those for the fundraising claim. Although the primary judge should perhaps have been more meticulous in his reasons to state that the challenge to the reasoning in paragraphs [5] and [6] of the Authority’s reasons failed, and accordingly the equivalent challenge to the reasoning of the IAA in paragraphs [7] – [12] also failed, in my view, having regard to the submissions below, that is how the reasoning of the primary judge should be understood. Furthermore, as I have noted, I do not find there to be any error in the reasoning of the IAA insofar as it concerns the analysis in paragraphs [7] – [12] of the IAA’s reasons. Accordingly, ground 1 of the appeal must be dismissed.

5.2    Ground 2

29    In ground 2 the appellant contends that the primary judge erred in failing to find that the IAA failed to consider whether an ITOA had been made. The ground is based on the premise that an ITOA was conducted (particular (ii)) and that the IAA was not provided with any document concerning such assessment or a copy of the data breach letter (particular (iv)). The appellant contends first that the Secretary erred in failing to provide the IAA with these materials, secondly that the IAA ought also to have sought them under s 473DC of the Act, and thirdly that the primary judge erred at [32] in finding that no claim fairly arose on the material before the IAA concerning the data breach and the ITOA.

30    This ground must be rejected for the following reasons.

31    First, the evidence does not support the contention that an ITOA was conducted. An affidavit sworn by Ernest Zanatta, a manager in the Protection Assessments Section of the Department of Home Affairs, which was admitted without objection in this appeal, deposes to the fact that no ITOA had been conducted. This buttresses a finding by the primary judge to similar effect at [27], that there was no ITOA assessment and that the applicant received no further correspondence informing him that there would be an ITOA assessment.

32    Secondly, the primary judge found that no claim was made by the appellant in support of his visa application arising from the circumstances of the data breach (at [32]). No evidence suggests that the primary judge was wrong in reaching this conclusion. In this regard it may be observed that the data breach letter is dated 14 March 2014, several years before the decision of the delegate in 2017. There was ample opportunity for such a claim to be made.

33    Having regard to these circumstances, there is no basis upon which it may be concluded that the Secretary was in possession or control of documents relating to the ITOA assessment (within s 473CB(1)(c)) or that such materials were included in materials provided by the appellant to the person making the decision before the decision was made (within s 473CB(1)(b)). As there was no claim made in relation to the ITOA assessment, and the Secretary did not have those materials, there is no basis upon which it may be concluded that they fall within s 473CB(1)(a)(ii) of the Act.

34    Thirdly, there is no dispute that the appellant received the data breach letter. The appellant contends that the Secretary ought to have provided it to the IAA in order to comply with the requirements of s 473CD(1)(c) and that the failure to do so amounted to a jurisdictional error. Alternatively, he contends that the IAA ought to have got the data breach letter pursuant to s 473DC.

35    As a matter of principle, a breach of s 473CB(1)(c) could arguably, in an appropriate case, have the consequence that the decision of the IAA was affected by jurisdictional error. The statutory scheme of Part 7AA contemplates limited merits review on the “review material” provided by the Secretary to the IAA. The “review material” must include material which the Secretary considers to be relevant. It is implicit that the statute contemplates that the Secretary’s view as to relevance be reasonably formed on a correct understanding of the law; EMJ17 v Minister for Immigration and Border Protection [2018] FCA 1462 at [42] (Thawley J).

36    In EVS17 the Full Court considered the scheme of Part 7AA in the context of a complaint that the Secretary had failed to provide material provided by the referred applicant to the decision maker, in breach of s 473CB(1)(b). It noted that the language of s 473CB is mandatory and that the Secretary must give the IAA the material set out therein (at [32]). The Full Court then said:

33        The intent of Pt 7AA is to provide an efficient, but fair, process of review in accordance with the terms of the Act: see [18]-[19] above. The Authority is expressly required to pursue that objective by providing a “mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3”: s 473BA. Division 3 sets out the way in which the Authority is to conduct the review. It expressly confines the material to which the Authority may have regard in undertaking its review to the material provided by the Secretary under s 473CB and, except in the limited circumstances set out in Subdiv C of Div 3, without accepting or requesting new information or interviewing the applicant. Further, in undertaking its review, the Authority is not concerned with the correction of error on the part of the Minister or delegate but undertakes a de novo consideration of the merits of the decision referred to it. It is required to consider the application afresh and determine for itself whether the criteria for a protection visa have been met: see Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 92 ALJR 481 at [17].

37    Having regard to the scheme, the Full Court found that a failure by the Secretary to comply with s 473CB(1)(b) of the Act may prevent the IAA from conducting the “review” contemplated by Pt 7AA such that jurisdictional error on the part of the IAA is established. However, not every breach of s 473CB(1) will result in jurisdictional error; at [35] of the decision. The Full Court then proceeded to consider whether, on the facts in that case, the failure to comply with s473CB(1)(b) was sufficient to amount to jurisdictional error.

38    In my view the Secretary has not erred in the manner contended by the appellant or indeed the requirements of s 473CB(1) more generally. In this regard it is to be repeated that the appellant advanced no claim on the basis of the data breach letter. Accordingly, the data breach letter did not form part of evidence on which the findings of the delegate were based within s 473CB(1)(a)(ii). Nor was it part of the material provided by the appellant to the delegate within s 473CB(1)(b). Subsection 473CB(1)(c) requires that the Secretary provide any other material that is in the Secretary’s possession or control and which is considered by the Secretary to be relevant to the review. In the absence of any claim being made before the delegate concerning the data breach letter it is difficult to conclude that the Secretary unreasonably treated the data breach letter as irrelevant and I do not do so.

39    Furthermore in my view, even assuming a breach to have taken place, it is plain that it could not be considered material, or of sufficient gravity, to amount to a jurisdictional error in the sense contemplated in Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 92 ALJR 780 at [25]. The issue to which the data breach letter might go is the risk that the Sri Lankan authorities would be aware that he had sought asylum in Australia but been refused. At worst the letter would have disclosed that fact. However, the IAA considered this possibility at [38] in reaching its conclusions.

40    Having regard to these matters, it follows that to the extent that the primary judge found that the Secretary failed to provide the data breach letter to the IAA in breach of s 473CB(1)(c), he did so in error. However, as he concluded that the breach was in any event not material, this does not affect the outcome of these proceedings.

41    The alternative submission advanced by the appellant is that the IAA ought to have sought the data breach letter (or the ITOA materials) pursuant to s 473DC of the Act.

42    Subsection 473DC(1), however, provides that the IAA may get new information that it considers relevant. Subsection 473DC(2) eschews any duty on the IAA to do so. In circumstances where the IAA has not had notice of a fact that may be relevant (here, the conduct of an ITOA), where there is a finding of fact that no ITOA took place and where, in any event, there is no duty on the IAA to seek additional information, the result must be that the FCCA did not err in finding an absence of a failure to consider on the part of the IAA.

43    Accordingly, ground 2 of the appeal must be dismissed.

6.    DISPOSITION

44    The appeal must be dismissed. The Appellant must pay the Minister’s costs of the appeal.

Associate:

Dated:    5 April 2019