FEDERAL COURT OF AUSTRALIA

EPT17 v Minister for Home Affairs [2019] FCA 570

ORDERS

THE COURT ORDERS THAT:

1.    Leave be granted to the appellant to raise the proposed new ground of appeal and to amend the notice of appeal in terms of the proposed amended notice of appeal annexed to the appellant’s written submissions dated 7 August 2018.

2.    The amended notice of appeal referred to in Order 1 is taken as filed.

3.    The appeal is dismissed.

4.    The appellant is to pay the costs of the first respondent as agreed or assessed.

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

REASONS FOR JUDGMENT

PERRY J:

1.    INTRODUCTION

1    The appellant is a citizen of Afghanistan who arrived in Australia in early 2013 as an unauthorised maritime arrival. On 24 March 2017, he applied for a Safe Haven Enterprise (Class XE) Subclass 790 visa (the safe haven visa).

2    This is an appeal from a decision of the Federal Circuit Court of Australia (the FCC) dismissing the appellant’s application for judicial review of a decision by the Immigration Assessment Authority (the IAA) given on 11 September 2017. The IAA is established by Div 8 of Pt 7AA of the Migration Act 1958 (Cth) (the Act) and is part of the Migration and Refugee Division of the Administrative Appeals Tribunal (the AAT). The IAA had affirmed a decision of a delegate of the first respondent, the Minister for Home Affairs (the Minister), to refuse to grant the appellant the safe haven visa.

3    Both the delegate and the IAA accepted that the appellant was at risk of persecution in his home region but found that the appellant could relocate to another location in Afghanistan. While the arguments in the FCC and on appeal relate to this finding, the appellant seeks leave to raise a new, related ground on appeal and does not pursue the ground dismissed by the FCC. Specifically, by a draft amended notice of appeal annexed to the appellant’s written submissions filed on 7 August 2018, the appellant alleges that the Authority proceeded on a misunderstanding of the criteria in s 473DD of Part 7AA which provides that the Authority may consider new information on the fast track review only where certain criteria are met and for this reason fell into jurisdictional error.

4    I also note that the parties were agreed that judgment on the appeal should await the Full Court’s decision in BYA17 v Minister for Immigration and Border Protection [2019] FCAFC 44 (BYA17). Following judgment in BYA17 on 14 March 2019, the Minister and the appellant filed further submissions on 15 and 16 April 2019 respectively in which they agreed that BYA17 was not directly dispositive of this appeal.

5    For the reasons set out below, leave should be granted to the appellant to raise the new ground of appeal and to file and serve the amended notice of appeal. However, the appeal should be dismissed.

2.    BACKGROUND

2.1    The criteria for the grant of a protection visa

6    The safe haven visa for which the appellant applied is a class of temporary protection visa, as provided for by s 35A of the Act. As such, it was necessary among other things for the appellant to satisfy the criteria for a protection visa in either s 36(2)(a) (the refugee criterion) or subs 36(2)(aa) (the complementary protection criterion): see s 35A(6) of the Act.

7    Turning first to the refugee criterion, at the relevant time s 36(2)(a) provided that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has protection obligations “because the person is a refugee”. A person is a “refugee” for the purposes of the Act if the person (relevantly) “is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country” (s 5H). In turn, s 5J(1) of the Act provided that:

(1)    For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)    there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)    the real chance of persecution relates to all areas of a receiving country.

(emphasis added)

8    In this regard, I note that the enactment of s 5J by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) had the effect of rendering the question of whether a visa applicant could reasonably relocate irrelevant to a consideration of the refugee criterion.

9    In the alternative, s 36(2)(aa) of the Act provides that it is a criterion for a protection visa that the applicant is a non-citizen in Australia “in respect of whom the Minister is satisfied that Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm”. The phrase “significant harm” is defined in s 36(2A) to mean arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment. Relevantly for present purposes, s 36(2B)(a) provides that there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that “it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm”.

2.2    The appellant’s claims

10    The appellant claimed to fear harm, including kidnapping and possible death, on the basis of his religion as a Shi’a Muslim and by reason of his Hazara ethnicity. His fear was based on difficulties which his family had encountered with Pashtun and Taliban groups in the province of Uruzgan where he grew up. He claimed that his uncle had been killed by Pashtuns and that his father had fled to Iran while the rest of his family remained near his home. The appellant claimed that he had not seen his father since his father’s escape but believed that he is sometimes in Pakistan.

11    The appellant claimed that he could not relocate to a different part of Afghanistan for the following reasons:

24. I could not have fled to a different part of Afghanistan as I could be identified and targeted by the Taliban. I understand that the Taliban have informants who would know that I was new in the area and would report me as soon as I arrived in a new place. I also fear to travel on the roads leading to Kabul or Kandahar as these roads are being watched by the Taliban. I understand if I had fled on this route they would have stopped, identified and killed me. I did not have any family or contacts that would be able to protect me if I left my village.

…

32. I have no family or personal connections in Kabul, Kandahar or other cities that could offer protection or invite me into the community. As I would be an outsider in any community, I fear that the reasons why I fled Afghanistan will be discovered by informants and reported to the Pashtuns or Taliban. I fear that I could be found, targeted and killed. Just because I am a single person, it does not make it any safer or possible to move to a strange city. I am a young Hazara Shi’ia and this is just the sort of person the Taliban want to get rid of.

12    The appellant also claimed that while his brother had lived in Kabul, his brother felt so unsafe that he had moved to Iran.

2.3    The delegate’s decision

13    After summarising the appellant’s claims, the delegate made a number of findings of fact relevantly, in relation to the appellant’s family situation.

14    The delegate noted that at the protection visa interview, the appellant claimed that he financially supported only his mother and younger brother, Mr S. However, the delegate put to the appellant that there was information before the Department indicating that he was sending money to his father in Kabul which in turn suggested that his father was not missing but was residing in Kabul. The appellant testified that the money being sent in his brother’s and father’s names eventually went to his home village, and that, while the money was initially sent to Kabul in his brother’s and father’s names, his father was not present in Afghanistan or Kabul. Rather the money was forwarded to his home through an agent. The appellant’s representative added that under the hawala system, a money agent in Kabul has the father’s Taskera, and Departmental records do not indicate who is collecting the money.

15    The delegate however found that the appellant’s father had been living in Kabul based upon the transaction report indicating that his father was the beneficiary of funds sent to Kabul and was not satisfied that the appellant’s father was working in Iran, as the appellant claimed. The delegate did accept however that the appellant’s brother had resided in Kabul but is now working in Iran, even though the delegate did not accept that he had been in Iran for three years as the appellant claimed.

16    The delegate then turned to consider whether Australia owed the appellant protection obligations. Turning first to the refugee criterion, while the delegate accepted that the appellant would face serious harm amounting to persecution if he were to return to his home area in the Uruzgan province on the basis of his race and religion, he did not consider that the real chance of persecution related to all areas of Afghanistan, and focused on Mazar-e-Sharif. The delegate also found that the appellant was not without support in Afghanistan and was satisfied that the appellant’s father, who (the delegate had found) was residing in Kabul, would provide assistance to the appellant should he require it. The delegate concluded that he was not satisfied that there is a real chance that the appellant would face persecution from the Pashtuns, the Taliban or any affiliated group, or any other extremist groups in Mazar-e-Sharif by reason of his religion, race or any other reason.

17    For the same reasons, the delegate found that the appellant did not face a real risk of significant harm in Mazar-e-Sharif due to his race or religion so as to satisfy the criterion for complementary protection under s 36(2)(aa) of the Act and found that it was reasonable for the appellant to relocate to Mazar-e-Sharif. Nor did the delegate consider, based upon country information, that the appellant would face a real risk of significant harm due to generalised harm in Mazar-e-Sharif as he does not have a profile or association with those identified as targets of the Taliban or other anti-Government elements in Mazar-e-Sharif.

18    I note that, despite the delegate focusing exclusively upon Mazar-e-Sharif, it was not in dispute that relocation to Mazar-e-Sharif was not discussed with the appellant. While the issue of the appellant’s possible relocation within Afghanistan was discussed during the second half of the appellant’s interview with the Department on 8 June 2017, the discussion focused exclusively upon relocation to Kabul.

2.4    The review by the IAA

2.4.1    The referral of the delegate’s decision to the IAA for review under Part 7AA of the Act

19    It was not in issue that the appellant is a “fast track applicant” as defined in subs 5(1)(a)(i)-(iii) of the Act and therefore that the delegate’s decision was subject to limited merits review by the IAA under the Fast Track Assessment Process (fast track review) in Part 7AA of the Act (comprising ss 473BA-473JF). As such, on 27 July 2017, the delegate’s decision was referred to the IAA for review pursuant to s 473CA of the Act. Where a referral is made under this provision, the Secretary must give to the IAA “review material” in respect of the referred decision (s 473CB). That material must include a copy of the delegate’s written reasons and any material provided to the delegate by the applicant, together with “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 [IAA]) to be relevant to the review” (s 473CB(1)(a)-(c)). The IAA, in turn, must “review” a fast track reviewable decision referred to it (s 473CC(1)), and in so doing, must pursue the objective in s 473FA “of providing a mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3 (conduct of review).”

2.4.2    The appellant’s submission to the IAA

20    When read together with s 473DA, the scope of material which may be considered by the IAA on a fast track review is limited by Subdiv B and C of Division 3 of Part 7AA (comprising ss 473DB-473DF). The effect of these provisions is that the IAA conducts the fast track review on the papers by reference to the material provided to it by the Secretary under s 473CB(1). As I later explain, this is subject to an exception pursuant to which the IAA may consider new information under s 473DC where the criteria in s 473DD are met: Minister for Immigration and Border Protection v AMA16 [2017] FCAFC 136; (2017) 254 FCR 534 (AMA16) at [19] (Griffiths J) (with whom Dowsett J at [1] and Charlesworth J at [97] relevantly agreed); see further below at [37].

21    On 7 September 2017, the solicitor for the appellant wrote to the IAA (the IAA submission) requesting that it exercise the discretion under s 473DC(3) to afford the appellant an oral hearing in order to allow him to provide new information on two issues:

(1)    relocation to Mazar-e-Sharif, given that the appellant had not been given notice that this was a live issue and given an opportunity to be heard on that issue, and that it was a fundamental basis of the decision to refuse the visa application; and

(2)    the delegate’s finding that the appellant’s father was resident in Kabul and not in Iran as the appellant claimed, being a matter “of central importance to the reasonableness of [the appellant’s] relocation to Kabul in consideration of both his refugee claims and his complementary protection claims” (emphasis in original).

22    As to the second issue, the IAA submission argued that the sole basis for the delegate’s finding was AUSTRAC records obtained by the Department of the appellant transferring money to Afghanistan in the name of his father and brother. It was submitted that the Department had failed to put the AUSTRAC records to the appellant or to provide him with sufficient detail about them in order to enable him fairly to respond and that the delegate’s finding was in any event legally unreasonable.

23    In support of the allegation of legal unreasonableness, the IAA submission referred to country information not before the delegate about the widespread use of hawala as an informal system of international money transfer and its mechanics. This country information pre-dated the delegate’s decision. The submission also described the appellant’s particular use of that system in transferring money to Afghanistan to his mother and brother as follows:

We are instructed by [the appellant] that the system of hawala that he used to transfer funds used the possession of a Taskera at the recipient end which matched the name that he transferred the funds in, as the form of “password”. [The appellant’s] oral instructions to our firm are that his mother was holding both the Taskera for his father and brother and she would simply tell him which Taskera she was holding at that time and he would list that name on the funds transfer. A male relative in her village would then present that Taskera at the “end” of the transaction to collect the money. [the new Taskera information]

Critically, the fact of the funds being initially sent to Kabul did not provide any logical basis for a finding that the recipient of the funds was physically present in Kabul. Instead that was simply the first step in the process (Australia → Afghanistan/Kabul) which was then followed by the next steps (Afghanistan/Kabul → Afghanistan/local destination).

24    It was submitted that the IAA ought to address the consequence of the alleged legal unreasonableness through acceptance of this new information under s 473DC.

2.4.3    The IAA’s decision

25    By its decision dated 11 September 2017, the IAA affirmed the delegate’s decision to refuse the appellant a protection visa. In its reasons, the IAA first considered the information to which it would have regard on the fast track review. It quoted the new Taskera information from the IAA submission at [6] of its reasons, accepted that it was new information, but decided not to have regard to it for reasons I later explain: see below at [45] and [61]-[64].

26    Nor, while accepting that the further country information was new information, was the IAA satisfied that it could not have been provided to the delegate, that it was credible personal information not previously known, that it may have affected the consideration of the appellant’s claims, or that there were exceptional circumstances justifying consideration of the new information (IAA reasons at [8]).

27    The IAA was also not satisfied that an interview was required or necessary, noting that there was no right to a hearing and that any new information obtained from the appellant at an interview conducted under s 473DC could only be considered subject to s 473DD of the Act. In this regard, the IAA found that:

9. … I am satisfied the applicant has had an opportunity to present his claims orally and provide evidence in relation to those matters which he now seeks a hearing. He was represented at the protection visa interview. The representative requested and the delegate granted a period of time for the lodgement of a post-interview submission. Two post-interview submissions were received from the representative prior to the decision being made.

28    The IAA then turned to consider whether the appellant had a well-founded fear of persecution for the purposes of the refugee criterion in s 36(2)(a) of the Act. In this regard, the IAA considered the appellant’s account of his level of contact with his father and the location of his father and brother, finding that:

29. I consider the explanations provided for the applicant’s use of his father’s and brother’s name when sending money to his family in Afghanistan to be unconvincing and implausible. The information before the Department provides specific details of each money transfer transaction including times, names and address of the person who ordered the transaction (the applicant), the names and address of the person who was the beneficiary of the transaction and where each money transfer was placed and received. The information also indicates an address in Kabul has been listed against several money transfer transactions where the applicant’s brother and father [sic] names have been listed as beneficiaries. I am not satisfied that the transferred money has been collected by anyone other than those people listed in the transaction report as beneficiaries.

29    The IAA also considered information contained in the post-interview submissions given to the delegate and was not satisfied that it evidenced that the appellant’s father and brother were not in Kabul during the relevant periods (IAA reasons at [30]-[33]). The IAA concluded that:

34. Having regard to the evidence as a whole, including the information before the Department, I am not satisfied the applicant has been a truthful witness about his level of contact with his father and the whereabouts of his father and brother, [Mr] S. I am satisfied that the applicant has regular contact with his father and brother, [Mr] S and that he has been sending money to father and brother, [Mr] S since his arrival in Australia. I am satisfied the applicant has been sending this money through the money transfer system and that it has been collected by his father and brother, [Mr] S in Kabul, Afghanistan.

30    The IAA considered the appellant’s claims that, after the death of his uncle, his family’s dispute with the Pashtun and Taliban continued, to be implausible and therefore was not satisfied that the circumstances arising from this dispute gave rise to a well-founded fear of harm.

31    That notwithstanding, the IAA accepted that there was a real chance of the appellant being subjected to serious harm on return to his home area due to his ethnicity (IAA reasons at [52]-[56]). However, based on country information, the IAA was satisfied that the appellant did not face a real chance of serious harm in Kabul from Pashtuns or Taliban on account of the past dispute between his family and the Pashtuns or Taliban now or in the reasonably foreseeable future (IAA reasons at [59]). Further based on country information, the IAA was not satisfied that there was a real chance that the appellant may be subjected to serious harm in Kabul on the basis of his religion and/or ethnicity now or in the reasonably foreseeable future (IAA reasons at [70]) or for any other reason. The IAA therefore concluded that the appellant did not meet the requirements of the definition of a refugee in s 5H(1) of the Act and therefore the refugee criterion in s 36(2)(a).

32    Turning to the question of complementary protection, the IAA was satisfied that the appellant may be subject to significant physical mistreatment amounting to significant harm if he returned to his home area. However, the IAA found that it was reasonable for the appellant to relocate to Kabul and as such, under s 36(2B)(a) of the Act there is taken not to be a real risk that he will suffer significant harm in Afghanistan. In reaching that view, the IAA among other things considered the appellant’s particular circumstances and referred back to its finding that the appellant had not been a truthful witness in relation to his level of contact with his father or the whereabouts of his father or his brother, Mr S. The IAA considered the appellant would be able to earn a living and have access to the necessary infrastructure and essential services to sustain himself and meet the basic necessities of life. The IAA also noted that he would be returning to his home country where he speaks the local language and is familiar with its culture (IAA reasons at [93]-[97]).

2.5    The FCC decision

33    The FCC dismissed the application for judicial review finding that: (1) it was not legally unreasonable for the IAA to find that it was reasonable for the appellant to relocate to Kabul; (2) the adverse credibility finding in relation to the sending of money by the appellant to his father and relocation to Kabul was open and could not be said to be illogical or irrational; and (3) the issue of relocation to Kabul had been clearly raised before the delegate and any failure by the IAA to allow the appellant to provide new information in relation to Kabul or attend an interview did not give rise to any practical injustice or procedural unfairness (FCC reasons at [47]-[48]).

3.    THE APPLICATION FOR LEAVE TO AMEND TO RAISE A NEW GROUND

34    The appellant seeks leave to file a draft amended notice of appeal attached to his written submissions. The appellant does not pursue the ground dismissed by the primary judge. The draft notice of appeal would substitute for the grounds prepared by the appellant when he was unrepresented, a ground which he accepts was not raised before the primary judge relating to the question of relocation, namely:

1.    The Second Respondent asked the wrong question, misapplied the statutory test, and/or misunderstood the nature of its power, and thus erred in the exercise of its jurisdiction when it considered whether to take into account “new information” pursuant to section 473DD of the Migration Act.

Particulars

1.1    The Second Respondent incorrectly confined its consideration of “exceptional circumstances” to the conduct of the Appellant in failing to provide the information at an earlier point in time;

1.2    The Second Respondent incorrectly applied section 473DD(b)(ii), because it considered that in order to satisfy this requirement, the Appellant had to be unaware of the relevant information at the time of the delegate’s decision, whereas the requirement could be satisfied if the Appellant were aware of the information, but the Minister were not.

35    The appellant submits that leave should be granted to raise these issues for the following reasons:

4.    The new ground focuses upon the Authority’s reasoning from [6] to [9] of its decision, and principally [6] and [7]. While ordinarily fresh grounds will not be allowed on appeal, the argument is tightly confined, it does not rely upon further evidence, there is no evidence which the Respondent could have led below had the argument been pursued below, and the potential prejudice to the Appellant if an unlawful decision is allowed to stand is significant.

5.    The new ground relates to the Authority’s treatment of what it considered “new information”, and the exercise of the Authority’s power to consider new information in section 473DD of the Migration Act 1958 (Cth).

36    While initially opposing the grant of leave to file the amended notice of appeal, at the hearing the Minister submitted that leave is neither opposed nor consented to. In the circumstances, I consider that it is appropriate to grant the leave sought.

4.    CONSIDERATION

4.1    Circumstances in which new information may be considered by the IAA under the Act on a fast track review

37    As earlier mentioned, the conduct of the fast track review was governed by Div 3 of Part 7AA (comprising ss 473DA-473DF).

38    Section 473DC(1) provides that:

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.

(emphasis added)

39    “New information” in turn is “limited to ‘information’ (which may or may not be recorded in a document), in the ordinary sense of a communication of knowledge about some particular fact, subject or event, that meets the two conditions set out in s 473DC(1)(a) and (b)”: Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 92 ALJR 481 (Plaintiff M174) at [24] (Gageler, Keane and Nettle JJ) (citations omitted).

40    As required by the words emphasised above in s 473DC(1), that section must be read subject to Part 7AA. Importantly, s 473DD limits the discretion conferred on the IAA to consider new information obtained under s 473DC(1) to cases where the requirements of subparas (a) and (b) are met. Thus, s 473DD provides that:

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.

    (emphasis added)

41    The requirements of ss 473DD(a) and 473DD(b) are cumulative. As the Minister submits, the precondition in subpara (a), together with either of the preconditions in subpara (b)(i) or (ii), must apply in order for the IAA to be satisfied that the requirements of s 473DD are met and for the new information to be considered: Plaintiff M174 at [31] (Gageler, Keane and Nettle JJ) (with whom Edelman J agreed at [100]) and [88] (Gordon J); see also Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; (2017) 257 FCR 111 (BBS16) at [102] (the Court); and AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111 at [13] (the Court).

42    It follows that, despite the prima facie width of the discretion in s 473DC(1), when read in the context of Part 7AA the default position is that the IAA conducts the fast track review on the papers by reference to the material provided to it by the Secretary under s 473CB(1) (described in Plaintiff M174 at [22] as the “primary rule”): AMA16 at [19] (Griffiths J) (with whom Dowsett J at [1] and Charlesworth J at [97] relevantly agreed).

43    Finally, s 473DA provides that Div 3 (together with ss 473GA and 473GB) “is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority.”

4.2    The parties’ submissions

44    It was not in issue that, regardless of any breach of procedural fairness by the delegate in determining the issue of relocation by reference to Mazar-e-Sharif, the fact of its decision refusing to grant the appellant the protection visa was sufficient to enliven the IAA’s power and obligation to review the decision. Nor was it disputed that the IAA’s decision affirming the delegate’s decision had legal force and effect by virtue of s 473CC(2)(a) of the Act irrespective of any jurisdictional error by the delegate: see Plaintiff M174 at [52] and [70] (Gageler, Keane and Nettle JJ).

45    As mentioned, the appellant’s challenge to the IAA’s decision focused upon its reasons at [7] for finding that the new Taskera information did not meet the criteria in s 473DD, namely:

7. These claims [i.e. the new Taskera information] were not made to the delegate and I consider them to be new information. The information adds to the basis on which the applicant’s claims were made before the delegate. No explanation has been provided as to why these claims were not provided to the delegate, or why they may be considered credible personal information. At the protection visa interview, the applicant was given an opportunity to provide to response [sic] to the information before the Department regarding the details of the money transfers the applicant had made to Kabul. The applicant provided a response. The applicant was asked at the end of the protection visa interview whether he had anything else to add and whether he would like to provide any further comment on the information before the Department. The applicant provided a response. He reiterated his claims that he had no family in Kabul. The applicant was represented at the protection visa interview. The representative provided two post interview submissions addressing the issue on which the new claims are based. The representative did not put forward the explanation now being advanced. I am satisfied that the applicant was given an opportunity to present his [sic] all his claims. The applicant has presented his claims with the assistance of a representative. The applicant has not satisfied me that the information could not have been provided prior to the decision being made or that it is credible personal information which was not previously known and, had it been known, may have affected the consideration of the applicants’ [sic] claims. Having regard to all the circumstances, I am also not satisfied that there are exceptional circumstances to justify the consideration of this new information.

46    The appellant contends that there are two errors in the Authority’s approach to the appellant’s explanation of how the funds transfer operates, and, in particular, how the Taskera was used as a “password” for the agent to obtain the funds:

29. First, the Authority has focused exclusively on the Appellant’s failure to provide the information earlier, in finding that the Appellant does not meet subsection (b)(ii) of section 473DD.

30. It appears that the IAA has interpreted “not previously known” as not previously known to the Applicant, which the IAA seems to consider is a sufficient basis to reject the information.

31. This can be inferred from the IAA’s lack of satisfaction that the requirements of sub-section (b)(ii) are met; there are two other requirements, that the information be “personal” and that it be “credible”. The information is obviously “personal”.

32. Similarly, it appears to reach the level of credibility required for admissibility; if it were admitted, it would be open to the Authority to weigh the explanation up and reject it, however, if it forms the basis for rejecting its admission, some explanation would be required.

33. Second, it appears that the IAA’s consideration of “exceptional circumstances” has focused exclusively on the conduct of the [appellant] in failing to put the explanation forward when his matter was being considered by the delegate. There is no evidence that the IAA has considered the significance of the information, or its centrality to the questions of relocation and credibility.

34. The result is that the IAA has misconstrued the relevant power, or asked the wrong question, and thus erred in the exercise of its jurisdiction.(emphasis in the original)

47    As to the first issue, it was not in issue that it is unnecessary for the purposes of satisfying the criterion in s 473DD(b)(ii) to establish that the appellant did not know the information in question. It is sufficient if the Minister did not previously know it: see Plaintiff M174 at [33]-[34] (Gageler, Keane and Nettle JJ); see also BBS16 at [106] (the Court). Nor did the Minister take issue with the appellant’s submission that the new Taskera information was “credible” and “personal” information for the purposes of s 473DD(b)(ii). As such, while the Minister formally submitted that the decision in CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 as to the proper construction of the word “credible” in s 473DD(b)(ii) was not correctly decided, the Minister accepted that it was unnecessary to decide that question in the present case.

48    However, relying upon the decisions of White J in BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958; (2017) 254 FCR 221 (BVZ16) and the Full Court in BBS16, the appellant submitted that:

(1)    “exceptional circumstances” in s 473DD(a) are broader than simply the issues raised in s 473DD(b), and must be given their ordinary meaning to mean circumstances which are unusual or out of the ordinary having regard to all of the circumstances; and

(2)    whether there are “exceptional circumstances” for the purposes of s 473DD(a) cannot be considered completely independently of the matters raised in s 473DD(b).

49    As such, the appellant submitted that there is an overlap between the question of whether the IAA erred in unduly limiting its consideration of whether there were exceptional circumstances for the purposes of s 473DD(a) and the question of whether the IAA erred in failing to consider whether the new Taskera information, as credible personal information, may have affected the consideration of the appellant’s claims.

50    The appellant contended that, contrary to these principles, the IAA’s consideration of whether there were “exceptional circumstances” focused exclusively upon whether the information was new information and upon the appellant’s failure to provide the information earlier when his application was being considered by the delegate. In other words, the appellant’s counsel submitted that all of the sentences at [7] of the IAA’s reasons “are just different ways of saying either, again, that the information was new, or that the applicant had an opportunity to provide the information … or that the applicant did provide some further information”. Thus while the appellant accepted that those matters are not irrelevant, he submitted that they were “not the whole of the question.”

51    It followed, in his submission, that there is no evidence that the IAA considered the significance of the new Taskera information to the appellant’s claims, and the reference at [7] of the IAA’s reasons to the information adding to the basis on which his claims were made before the delegate was no more than a finding that the information was new. Yet in his submission the evidence as to money transfers to Kabul was critical to the question of whether it was reasonable for him to relocate to Kabul because that evidence “would, if taken at face value, suggest that the Appellant’s father and brother were in fact in Kabul, and could provide support. It was also relevant to the Appellant’s credibility more generally.” Thus, the appellant’s counsel submitted that the significance of the new Taskera information is that “it clarifies the information provided to the delegate and it also makes it more concrete and more particular, and [it] is often the provision of particular detail which fleshes out a claim and makes it feel more real and more concrete.”

52    Against this, the Minister submitted that it could be inferred from the IAA’s reasons at [7] that it considered that the new Taskera information was not information that could have affected the consideration of the appellant’s claims for the purposes of s 473DD(b)(ii) and that this was taken into account by the IAA in finding that the circumstances were not “exceptional” for the purposes of s 473DD(a).

53    In any event and for the same reasons, the Minister submitted that any error was not material and therefore not jurisdictional in nature (applying Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 92 ALJR 780 (Hossain)). It follows that the issues on the appeal ultimately turn upon the proper construction of the IAA’s reasons.

4.3    Did the IAA err in its consideration of s 473DD(a)?

4.3.1    Is the IAA required to consider the matters in s 473DD(b) in considering whether there are “exceptional circumstances” for the purposes of s 473DD(a)?

54    The appellant accepts that, strictly speaking, the IAA is not required to consider whether s 473DD(b) is satisfied before considering s 473DD(a). Nonetheless, the appellant contends that a failure to consider the matters relevant to determining whether the criteria in s 473DD(b) are met in the context of considering whether exceptional circumstances exist may lead the IAA into error for the reasons given in BBS16 and BVZ16. Thus, White J held in BVZ16 that the IAA had erred in failing to consider whether exceptional circumstances existed for the purposes of subpara (a) having regard to the matters which it was required to consider under s 473DD(b)(i) and (ii), given the overlap between the criteria in s 473DD(a) and (b). It followed, his Honour held, that the IAA had failed to discharge the function of review imposed upon it by subs 473DB(1) of the Act (BVZ16 at [36]).

55    Further and in any event, White J held that the IAA had applied an unduly narrow interpretation of the term “exceptional circumstances” in s 473DD(a) and as a result, had failed to consider all of the matters capable of rendering the circumstances of the appellant’s case exceptional. In this regard, White J held that circumstances will be exceptional if they are “unusual” or “out of the ordinary”, and this requires a “consideration of all the relevant circumstances” (BVZ16 at [39]-[41] (emphasis added)). As his Honour further explained, read in context “exceptional circumstances will be those which are out of the ordinary course and which will justify the new information being considered even though it had not been provided to the Minister at the time of the s 65 decision. A variety of matters may be capable of bearing upon those circumstances” (at [43]).

56    Thus, White J accepted the appellant’s submission that there had been a constructive failure by the IAA to exercise its jurisdiction because it had confined its consideration of whether there were exceptional circumstances to an evaluation of the appellant’s explanation for not having provided the information earlier. As his Honour held:

    47    In my opinion, there is force in that submission. The IAA member does seem to have reasoned that her rejection of the appellant’s explanation for not having disclosed the new information earlier was decisive of the requirement that the circumstances be exceptional. This seems to reflect an inappropriately narrow understanding of the reach of the term “exceptional circumstances”, as discussed earlier in these reasons.

57    In BBS16, the Full Court at [102]-[106] approved White J’s construction and held that the IAA had similarly fallen into jurisdictional error in that case. Specifically the Court held that:

    111    … the IAA’s conclusion that it was not satisfied that there were exceptional circumstances to justify considering this new information was based on the IAA’s finding that the first respondent had not provided any explanation as to why the information could not have been provided earlier … Thus the IAA described the numerous opportunities which the first respondent had earlier in the process to provide the information, his knowledge about the limitations of providing new information and the fact that he had not previously raised any of the new information notwithstanding that it related to events which occurred prior to the delegate’s decision on 17 February 2016. In addition, it is notable that the IAA made no reference at all to the material which explained why the first respondent had not previously disclosed his affiliation with AFLA, notwithstanding that this was a relevant matter to be taken into account in assessing whether there were exceptional circumstances for the purposes of s 473DD.

    112    For these reasons, we consider that the IAA made a similar error to that which was identified in BVZ16. Instead of addressing other matters which were potentially relevant to the issue of “exceptional circumstances”, including the first respondent’s explanation as to why he had not previously disclosed his affiliation with AFLA, the IAA reasoned that, because the referred applicant had not provided any explanation as to why the new information could not have been provided earlier, the IAA was not satisfied that there were exceptional circumstances. That reflects a misconstruction and misapplication of s 473DD.

4.3.2    Did the IAA fail to consider the matters in s 473DD(b) in deciding that there are no “exceptional circumstances” for the purposes of s 473DD(a)?

58    It is well established that the onus lies upon the appellant to establish jurisdictional error: BVD17 v Minister for Immigration and Border Protection [2018] FCAFC 114 at [41] (the Court); BYA17 at [35] (the Court). It follows that the appellant bears the onus of establishing the factual foundation from which it can be inferred that the IAA asked itself the wrong question or otherwise misapplied the test in s 473DD(a) in determining whether there were “exceptional circumstances” justifying a consideration of the new Taskera information.

59    In this regard, as earlier mentioned, the parties were agreed that BYA17 is not directly dispositive of the appeal. In that case, the Full Court inferred from the complete absence of any reference by the IAA in its reasons to certain items of new information that the IAA had failed to consider whether that information met the criteria in s 473DD (at [44]). By contrast in this appeal the new information is expressly considered, with the issue being whether the IAA failed to apply s 473DD correctly to that information. Nonetheless, the appellant relied upon the Full Court’s approach in BYA17 to emphasise the need for the Court to undertake a careful consideration of the IAA’s reasoning as a whole with respect to the application of s 473DD, while making it clear that his argument did not depend upon the existence of a duty on the IAA to give reasons for so-called “procedural decisions” such as those made pursuant to s 473DD: cf CVS16 v Minister for Immigration and Border Protection [2018] FCA 951 at [26]-[29] (Bromwich J); and BYA17 at [50] (the Court).

60    In any event, in my view, the appellant has not established that, in finding that exceptional circumstances had not been established, the IAA wrongly limited itself to a consideration of whether the information was new and the appellant’s conduct in failing to provide the new Taskera information before the delegate’s decision.

61    First, the IAA expressly found in the last sentence of [7] that it was not satisfied that the circumstances were exceptional “[h]aving regard to all of the circumstances” (emphasis added). Fairly read, at the least that refers back to all of the matters discussed in the preceding sentences of [7].

62    Secondly and contrary to the appellant’s submissions, those circumstances were not limited to the findings by the IAA as to the appellant’s failure to provide the new Taskera information before the delegate’s decision, despite the appellant having been afforded ample opportunity to do so. Relevantly, the IAA also took into account that it was not satisfied that the information may have affected the consideration of the appellant’s claims. Those findings were open to the IAA even though the new Taskera information was relevant to a central claim by the appellant as to the reasons why it was not practicable for him to relocate and, as accepted on the appeal, was credible personal information.

63    In this regard, the IAA had earlier found that the new Taskera information “adds to the basis on which the [appellant’s] claims were made before the delegate” (IAA reasons at [7]). The appellant submitted that this was simply a finding that the information was “new”. Fairly read, however, it is at least equally open to read this passage as finding that the new Taskera information (as the appellant accepted) did not involve any new claims; rather the new information elaborated only upon the claim made before the delegate by providing further particulars as to why the fact that moneys ostensibly sent to the appellant’s father under the hawala system in Kabul should not, in the appellant’s submission, be taken as indicating that the appellant’s father was in fact in Kabul. In other words, as the Minister submitted, properly construed, the IAA took into account that the new Taskera information did not materially alter what had already been put to the delegate.

64    It follows that the appellant has not established that the IAA misunderstood the nature of its task under s 473DD(a) and that it failed to consider all of the matters capable of rendering the circumstances of the appellant’s case exceptional. Having found that the appellant did not meet the criterion in s 473DD(a), it was not necessary for the IAA to consider whether the criteria in s 473DD(b)(i) and (ii) were met. Thus, any error in its consideration of those criteria could not be material and would not therefore be jurisdictional in nature: Shrestha v Minister for Immigration and Border Protection [2018] HCA 35; (2018) 92 ALJR 798 at [10] (Kiefel CJ, Gageler and Keane JJ) (applying Hossain).

5.    CONCLUSION

65    For these reasons, the appeal must be dismissed with costs.

Associate:

Dated:    24 April 2019