FEDERAL COURT OF AUSTRALIA

EBZ17 v Minister for Home Affairs [2019] FCA 661

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

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

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

REASONS FOR JUDGMENT

ROBERTSON J:

Introduction

1    This is an appeal from the judgment and orders of a judge of the Federal Circuit Court of Australia given and made on 23 January 2019.

2    The appellant was found by the Immigration Assessment Authority (the IAA) to be a citizen of Pakistan who was born near Parachinar in Upper Kurram Agency. He lived in or near Parachinar all his life before travelling to Australia. He is Pashtun. He is a member of the Turi tribe and a Shia Muslim. He is a Syed, a person descended directly from the Prophet Muhammad.

3    The appellant arrived in Australia on 28 September 2012 as an unauthorised maritime arrival. On 16 February 2016 he lodged an application for a protection visa.

4    On 15 August 2017 the IAA affirmed a decision of a delegate of the first respondent, the Minister, made on 12 December 2016, not to grant the appellant a Safe Haven Enterprise Visa, pursuant to s 65 of the Migration Act 1958 (Cth).

5    The primary judge dismissed the appellant’s application for judicial review of the decision of the IAA.

Ground of appeal

6    The ground of appeal is in the following terms:

The Immigration Assessment Authority (“the Authority”) found in paragraph 14 of its decision that, on application of s 473DD of the Migration Act 1958 (Cth), exceptional circumstances did not exist to justify considering a supplementary expert report provided by the appellant to the Authority in May 2017. The Authority erred in making this finding under s 473DD in a manner which involved jurisdictional error. The Federal Circuit Court, in paragraphs 24 to 31 of its judgment, rejected this ground of review. The Federal Circuit Court erred in rejecting this ground of review.

7    This ground reflected Ground 3 of the application for judicial review before the primary judge.

The statutory provisions

8    As noted by the primary judge at [24], s 473DB of the Migration Act requires, subject to Pt 7AA, that the IAA is to review a fast track reviewable decision referred to it under s 473CA by considering the “review material” provided to it under s 473CB without accepting or requesting new information and without interviewing the referred applicant. “New information” is information or documents that were not before the delegate and which the IAA considers may be relevant to the review.

9    Section 473DD is an exception to the prohibition on the IAA considering new information. It provides:

473DD    Considering new information in exceptional circumstances

For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

(a)    the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

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

(i)    was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

(ii)    is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.

The decision of the IAA

10    The relevant paragraphs of the decision of the IAA were as follows.

11    At [3], the IAA said it had obtained new information about recent violent incidents in the appellant’s home area of Parachinar. This information post-dated the delegate’s decision and provided more current information than was before the delegate regarding the changing situation in some parts of Pakistan. The IAA said that in view of this and the shifting environment in some areas of Pakistan, it was satisfied that exceptional circumstances existed to justify the consideration of that new information.

12    At [6], the IAA said that on 17 May 2017 the appellant’s representative provided a 33 page “expert report” prepared by an individual retained by the appellant’s representative’s firm, together with a copy of the letter of engagement to the author for his preparation of the report.

13    At [11], the IAA said that this “expert report” was not before the delegate and was new information, although some of its contents were also included in a report submitted to the delegate that was already before the IAA and which it had considered. The report’s author stated that the report was based on his “specialised knowledge” as evidenced by his résumé which was attached to the report. His résumé indicated that he was a permanent resident of Australia with “a background in Parachinar” in Pakistan. He stated that he held a Bachelor of Laws, a Bachelor of Arts and a postgraduate diploma in International Human Rights Law. His employment history included employment by NGOs in Afghanistan and settlement services organisations in Australia and Nauru, and a brief period “fundraising and representing Australia for UNHCR”.

14    The IAA said, at [12], the report addressed the delegate’s decision and included a range of country information about matters such as: the operations of militant groups and military forces in and around the appellant area of origin; the activities of religious extremist groups and individuals across Pakistan; attacks on Shias in Australia and other western countries; the international strategic context; the Pakistani government’s approach to terrorism; the security situation in Pakistan; the repatriation of internally displaced people to Kurram Agency; attitudes of Sunni Muslims to Shia Muslims in Pakistan; various images; and lists of attacks on Shias and others.

15    The IAA said, at [13], that other than that part of the report directly addressing the delegate’s decision, the author had generally not articulated the connection between the information provided and the appellant’s individual claims. It was not evident how some information relating to areas other than the appellant’s home area, such as that relating to the alleged mistreatment of Shia Muslims in Australia and Sweden, was relevant to the appellant’s claims for protection. Similarly, the connection between reports of recent incidents relating to Shias, other religious minorities and other high profile individuals in areas of Pakistan other than Kurram Agency was not clear. The pertinence of information relating to the appellant’s home region other than attacks targeting Shias, including reports of attacks on members of the security forces and political leaders was similarly uncertain. The report included information relating to recent attacks on Shias in the appellant’s home area. The IAA was satisfied that the new information it had obtained in relation to recent attacks in Parachinar provided a clear indication of the current situation faced by Shias in Upper Kurram Agency.

16    At [14], the IAA said as follows:

The report contains a number of unsubstantiated assertions, including about the likely consequences for the [appellant]. I note that there is other information already before me about many of the matters addressed in the report, including attacks perpetrated by Sunni extremist groups on Shias, other religious minorities and others in Pakistan; the Pakistani Government’s approach to terrorism, the activities of Sunni extremist groups, sectarian violence in Pakistan, the security situation in Pakistan, and the repatriation of IDPs to Kurram Agency. Having regard to the range of other information that is before me, including the new information I have obtained and the previous extensive report the author provided to the delegate; and the limited evident relevance of much of the information to the [appellant’s] individual claims for protection, I am not satisfied that exceptional circumstances exist to justify considering the new information.

The decision of the primary judge

17    The relevant paragraphs of the reasons for judgment of the primary judge were as follows, at [25]-[31]:

Much has been written about this provision. It suffices to note the following propositions that have now been established:

a)    the requirements of ss.473DD(a) and (b) must both be met before the Authority is able to consider the new information;

b)    what will amount to “exceptional circumstances” is inherently incapable of exhaustive statement;

c)    the matters referred to in sub-ss.473DD(b)(i) and (ii) may be, but are not necessarily, relevant to the consideration of whether there are “exceptional circumstances;

d)    it is an error to take too narrow a view of what will amount to “exceptional circumstances” but each case turns on its own facts.

See Plaintiff M174/2016 v Minister for Immigration & Border Protection (2018) 92 ALJR 481; DLB17 v Minister for Home Affairs [2018] FCAFC 230; AQU17 v Minister for Immigration & Border Protection [2018] FCAFC 111; Minister for Immigration & Border Protection v BBS16 (2017) 257 FCR 111.

As I have observed, the applicant sent the Authority a supplementary report by an expert, Mr Hussain. That report was not before the delegate when he made his decision and was treated by the Authority as containing “new information”. It was not satisfied that there existed exceptional circumstances to justify considering that new information and so did not consider it for the purposes of making its decision on review. It explained the reason for that conclusion in the following passages of its reasons:

…

The applicant contends that the Authority erred in this consideration. Taken at face value, the ground in the amended application is misguided. The Authority did not refuse to do anything. Rather, in accordance with the dictates of s.473DC of the Act, it did not consider certain of the information in the report because it was not satisfied that the requirements of s.473DD were met. The applicant’s submissions more accurately address this fact. There, the applicant argued that the Authority erred in three ways:

a)    its conclusion was irrational or illogical;

b)    the Authority failed to consider the option of considering part of the report (involving up to date country information on the security situation and attacks on Shias), while not considering the balance of the report; and

c)    it failed to consider the matters in s.473DD(b).

The first of these was no more than an assertion. The applicant did not explain at all why the reasoning process set out at [11] to [14] of the Authority’s statement of reasons was either irrational or illogical. He did not explain why, in the face of the breadth and nature of the inquiry into whether there are exceptional circumstances, the Authority’s conclusion was not open for the reasons given by it. In those circumstances, this argument rises no higher than an expression of disagreement with the Authority’s conclusion and so is rejected.

The second argument, too, must be rejected. The Authority did have regard to different aspects of the report and applied different reasoning to each aspect. It noted, at [11], that some parts of the report were before the delegate. It identified the different topics addressed in the report: [12]. It noted the general, but not universal, failure of the author to articulate a connection between the information in the report and the applicant’s claims: [13]. It noted that a number of the assertions by the author were unsubstantiated: [14]. Finally, it noted that there were parts of the report that, while relevant, were the subject of a range of other information before the Authority: [13] and [14]. In light of this, I am not satisfied that the Authority did fail to consider whether it could consider parts of the report and reject others.

The third argument must also be rejected. First, the Authority was not required to consider the application of s.473DD(b) because both parts of s.473DD must be met before the Authority can consider new information and the Authority found that s.473DD(a) was not met. Secondly, the Authority did not take an overly narrow view of the meaning of “exceptional circumstances”. Its reasoning shows that it addressed the cogency of the report (by reference in part to the lack of reasoning in it and the lack of apparent relevance of some of the material in it) as well as the fact that some of the information in it was also dealt with in other material available to the Authority. This was not a case where, as in BVZ16 v Minister for Immigration & Border Protection (2017) 254 FCR 221, the Authority considered only whether the information was available prior to the delegate’s decision and proceeded on the basis that that was determinative of whether there were exceptional circumstances.

Ground 3 is rejected.

The submissions of the parties

18    The appellant filed no written submissions. At the commencement of the hearing of the appeal the appellant applied for an adjournment. I refused this application for reasons I then gave.

19    The Minister submitted the requirements of s 473DD(a) and s 473DD(b) were cumulative; at least two of the three pre-conditions in (a) and (b)(i) or (b)(ii) must apply in order for the IAA to be satisfied that the requirements of s 473DD were met: Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 353 ALR 600 at [31] per Gageler, Keane and Nettle JJ, [78] per Gordon J, [100] per Edelman J; Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; 257 FCR 111 at [102]; AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111; 162 ALD 442 at [13].

20    The Minister submitted that what constituted “exceptional circumstances” pursuant to s 473DD(a) was “inherently incapable of exhaustive statement”; it was not a term of art but a term with an ordinary meaning, albeit one with a broad meaning: Plaintiff M174/2016 at [30] per Gageler, Keane and Nettle JJ; BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958; 254 FCR 221 at [39]-[42] per White J; BBS16 at [104]. To be exceptional, the Minister submitted, a circumstance need not be unique or rare but it “cannot be one that is regularly, or routinely, or normally encountered”: Plaintiff M174/2016 at [30] per Gageler, Keane and Nettle JJ. The application of the criterion will involve an evaluative judgment by the decision-maker: Plaintiff M174/2016 at [75] per Gageler, Keane and Nettle JJ. The Full Court of the Federal Court in DYS16 v Minister for Immigration and Border Protection [2018] FCAFC 33 noted, at [17], that s 473DD(a) did not require the IAA, in its evaluation, to be satisfied of a particular fact or facts.

21    The Minister submitted that there was no obligation on the part of the IAA to consider the matters set out in s 473DD(b); they applied only to new information given by an applicant to the IAA: Plaintiff M174/2016 at [29] and [88]; DBE16 at [64]. Consistently with this, the IAA’s approach in the present case, where no reference was made to the matters in s 473DD(b), was not disapproved in similar cases: DDQ17 v Minister for Immigration and Border Protection [2018] FCA 1223 at [27]; BHE17 v Minister for Immigration and Border Protection [2018] FCA 757 at [32].

22    The Minister submitted the chapeau to s 473DD stated that the “referred applicant satisfies the IAA that, in relation to any new information…” (Minister’s emphasis) the pre-conditions in (b)(i) or (b)(ii) were met. Consistently, the AAT Practice Direction required applicants to provide an explanation as to why (b)(i) or (b)(ii) were satisfied: in Plaintiff M174/2016 at [38] per Gageler, Keane and Nettle JJ. Although there was, strictly speaking, no onus or burden, the words of the chapeau called for “some material by way of explanation”: AUH17 v Minister for Immigration and Border Protection [2018] FCA 388 at [33] per Mortimer J.

23    The Minister submitted that the appellant before the primary judge challenged the IAA’s reasons in respect of the expert report on a range of grounds, including that it was irrational, failed to segment the expert report by reference to different parts of the information and failed to consider the matters in s 473DD(b). It was correct that the IAA did not make any express reference to the matters set out in s 473DD(b). As the authorities referred to by the Minister showed, he submitted, the mere fact that the IAA did not refer to those matters or chose to consider the statutory question posed by s 473DD(a) first did not, as a matter of principle, form a basis on which to conclude that there was a jurisdictional error. The sections did not create a code and did not require treatment of specific statutory question in a particular way or in a particular order. There was no obligation on the IAA, the Minister submitted, to refer to the matters in s 473DD(b).

24    The Minister submitted that it was apparent that the IAA did not treat the issues under consideration too narrowly. It was evidently aware of the temporal context for the report as a whole because it found that the report was not before the delegate and was new information. It considered a wide range of factors in assessing the expert report, including that some of its contents had been considered by the delegate and was therefore to be considered by the IAA, and specifically examined the differing types of country information contained in the report, some of which were not relevant, some of which the IAA did not consider because it preferred to rely on other country information dealing with the same issues (as it was entitled to do). In addition, the Minister submitted, the IAA identified a number of unsupported assertions about the applicant. It may be inferred, the Minister submitted, not only that the IAA considered the probative value of the material but that it assessed how the material related to the appellant’s claims. The reasons also showed that the IAA adopted a careful approach to distinct aspects of the expert report.

25    The Minister submitted that the primary judge did not make any appellable error.

Consideration

26    As I have noted, the reasoning of the IAA was that the report contained a number of unsubstantiated assertions, including about the likely consequences for the appellant.

27    The IAA noted that there was other information already before it about many of the matters addressed in the report, including: attacks perpetrated by Sunni extremist groups on Shias, other religious minorities and others in Pakistan; the Pakistani Government’s approach to terrorism; the activities of Sunni extremist groups; sectarian violence in Pakistan; the security situation in Pakistan; and the repatriation of internally displaced people to Kurram Agency.

28    The IAA had regard to the range of other information that was before it, including: the new information it had obtained and the previous extensive report the same author provided to the delegate; and the limited evident relevance of much of the information to the appellant’s individual claims for protection.

29    In those circumstances, the IAA was not satisfied that exceptional circumstances existed to justify considering the new information, as required by s 473DD(a).

30    As the plurality said in Plaintiff M174/2016, at [31]:

Cumulatively upon the precondition set out in s 473DD(a) that the Authority must be satisfied that there are exceptional circumstances to justify considering new information, s 473DD(b) sets out a further precondition that must also be met before the Authority can consider new information that is given to it, or proposed to be given to it, by the referred applicant. In respect of new information within that category, the Authority must be satisfied of one or other of the circumstances set out in s 473DD(b)(i) and (ii).

31    It is enough to exclude “new information” if, as here, the IAA is not satisfied as to s 473DD(a).

32    It does not appear that the appellant or his advisers put to the IAA any material showing or suggesting that there were exceptional circumstances to justify the IAA considering the new material in the report in question. I note that the IAA by its email of 19 May 2017 asked that issue to be addressed about that the submissions sent thereafter, dated 9 August 2017, did not do so. Thus, the IAA’s reasons for it not being satisfied that there were exceptional circumstances to justify considering new information were not reasons given in response to material put to it to meet that precondition, and could not be said to be an error going to jurisdiction on that basis.

33    In my opinion, the IAA did not take too narrow a view as to what might constitute exceptional circumstances. The IAA’s consideration and reasoning was within the field of choice given to it by s 473DD. It identified what was new in the report of May 2017, examined its contents, and decided that there were not exceptional circumstances to justify considering it. This was in contrast to the new information that the IAA did take into account, as explained at [3] of its reasons. The IAA evaluated the circumstances and was not satisfied those circumstances were exceptional. I see no legal error in the IAA’s consideration of whether it was satisfied that there were exceptional circumstances to justify considering the new information.

34    I see no appellable error on the part of the primary judge.

Conclusion and orders

35    The appeal should be dismissed, with costs.

Associate:

Dated:    13 May 2019