FEDERAL COURT OF AUSTRALIA

DKF16 v Minister for Immigration and Border Protection [2019] FCA 789

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders of the primary judge made on 16 January 2019 be set aside and in lieu thereof:

(a)    The decision of the Immigration Assessment Authority dated 20 October 2016 (IAA) be set aside;

(b)    The matter be remitted to the IAA for determination according to law; and

(c)    The Minister pay the applicant’s costs of the proceeding in the Federal Circuit Court of Australia, fixed in the amount of $7,467.

3.    The first respondent pay the appellant’s costs of the appeal (the appellant’s costs), to be fixed by way of a lump sum.

THE COURT DIRECTS THAT:

4.    Within 14 days, the parties file any agreed proposed minutes of orders fixing a lump sum in relation to the appellant’s costs.

5.    In the absence of any agreement:

(a)    within 21 days, the appellant file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court’s Costs Practice Note (GPN-COSTS);

(b)    within a further 14 days, the first respondent file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of the Costs Practice Note (GPN-COSTS); and

(c)    in the absence of any agreement having been reached within a further 14 days, the matter of an appropriate lump sum figure for the appellant’s costs be referred to a Registrar for determination.

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

REASONS FOR JUDGMENT

MOSHINSKY J:

Introduction

1    The appellant, a citizen of Iran, appeals from a judgment of the Federal Circuit Court of Australia. The Federal Circuit Court dismissed the appellant’s application for judicial review of a decision of the Immigration Assessment Authority (the IAA) pursuant to Pt 7AA of the Migration Act 1958 (Cth).

Background

2    The appellant arrived in Australia by boat on 1 September 2012 as an unauthorised maritime arrival. On 24 June 2015, he lodged an application for a temporary protection visa (protection visa). The appellant’s claims are set out in the reasons of the primary judge (the Reasons) at [9] and need not be set out here. On 16 November 2015, the appellant attended an interview in relation to his application for a protection visa (the TPV interview). On 8 July 2016, a delegate of the first respondent (the Minister) refused the appellant’s application for a protection visa.

3    The matter was then referred to the IAA. On 5 September 2016, the appellant provided a submission to the IAA. Included in the submission were the contact details of two people – the appellant’s cousin in the United States, and a woman who I will refer to as “Ms B”.

4    On 20 October 2016, the IAA affirmed the decision of the delegate not to grant the appellant a protection visa. In the course of its reasons, the IAA referred to the fact that the appellant had, in his submission, provided the contact details of the cousin and Ms B, and stated that it was implied in the submission “that they could provide corroboration of aspects of [the appellant’s] claims”. The IAA decided not to exercise the power in s 473DC of the Migration Act to get new information from the cousin and Ms B. It is this aspect of the IAA’s decision that is critical for the purposes of the appeal. I will return to this aspect of the IAA’s reasons later.

The proceeding in the Federal Circuit Court

5    The appellant applied to the Federal Circuit Court for judicial review of the decision of the IAA. The appellant, who was represented by counsel in the Federal Circuit Court, relied on three grounds of review. These are set out in the Reasons at [2]. Included in the particulars under ground 1 was the contention that the “IAA collapsed its reasoning about ss 473DC and 473DD in a manner that shows that the IAA miscomprehended that its own discretion in s 473DC to ‘get information’ by calling the two numbers was constrained by limitations on considering information in s 473DD”.

6    The primary judge rejected each of the grounds of review and dismissed the application.

The appeal

7    The appellant relies on two grounds of appeal as set out in his notice of appeal. The grounds are as follows:

1.    The Judge below erred by not finding that the IAA’s decision was affected by jurisdictional error in that the IAA misconstrued s 473DC of the Migration Act 1958 (Cth).

Particulars

1.    The IAA considered whether to obtain new information from [name omitted] and [name omitted].

2.    The IAA conflated two distinct sections, where one was about obtaining new information (s473DC) and the other was about considering new information (s473DD) and thereby imposed an impermissible hurdle into s473DC.

3.    The IAA treated s473DD(b)(i) and (ii) as if they both had to be satisfied when they were alternatives, as demonstrated by the word “or” between the subsections.

2.    The Judge below erred in failing to provide adequate reasons for the dismissal of the appellant’s application for judicial review. The reasons do not address fundamental aspects of the appellant’s case such as the existence of superior court authority in support of ground 1 of the appellant’s application for judicial review – EMJ17 v Minister for Immigration and Border Protection [2018] FCA 1462.

Ground 1

8    Sections 473DC and 473DD of the Migration Act provide as follows:

473DC – Getting new information

(1)    Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:

(a)    were not before the Minister when the Minister made the decision under section 65; and

(b)    the Authority considers may be relevant.

(2)    The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.

(3)    Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:

  (a)    in writing; or

(b)    at an interview, whether conducted in person, by telephone or in any other way.

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.

9    These provisions were considered by Thawley J in EMJ17 v Minister for Immigration and Border Protection [2018] FCA 1462 (EMJ17) at [60]-[63].

10    In the present case, the IAA’s consideration of whether or not to exercise the power to obtain new information was set out at [5]-[6] of its reasons, which were as follows:

5.    Included in the submission were the contact details of two people – the applicant’s cousin in the US, and a [Ms B], a Baha’i woman who the applicant claims to have met in Tehran, and who he met by chance in Australia in December 2015. Although the applicant has not explicitly requested the IAA to contact these people, it is implied that they could provide corroboration of aspects of his claims. The IAA does not have a duty to get new information, even if requested to do so by an applicant: s.473DC(2) of the Act. It can only consider new information in exceptional circumstances: s.473DD of the Act.

6.    It was very clear at the TPV interview held on 16 November 2015 that the delegate had major concerns about the credibility of the most of the applicant’s claims, including those about which his cousin and [Ms B] might be able to provide evidence. The applicant claims that he met [Ms B] in December 2015, which was after the TPV interview. However, he was informed at the end of the interview that further information submitted before a decision was made would be considered: the decision was not made until July 2016. His former representative was present at the interview. I consider the applicant was given ample opportunity to understand the credibility concerns held by the delegate and to provide comments on or information to dispel those concerns. I consider that corroborative information from the applicant’s cousin and [Ms B] could have been provided to the delegate before the decision was made. Further, it would have been open to the applicant to submit sworn statements from these people to the IAA, rather than just providing their telephone numbers. Based on the limited information provided by the applicant about these people I am not satisfied that any information they could provide would be credible personal information not previously known which may have affected the delegate’s consideration of the applicant’s claims. I am not satisfied that there are exceptional circumstances which justify obtaining new information from these two people.

11    The appellant’s contention is that the IAA conflated the requirements of ss 473DC and 473DD, in effect reading the requirements of s 473DD into s 473DC. A contention to this effect was accepted by Thawley J in EMJ17.

12    The Minister contends that the IAA did not conflate the two sections. Rather, the Minister submits, the IAA set out in [6] a series of matters to which it had regard in considering whether or not to exercise the discretion in s 473DC. The Minister also submits that, having regard to [5] and [6] as a whole, the IAA correctly considered the relevance of the information that might be provided by the two potential witnesses. The Minister submits that EMJ17 is distinguishable on the basis that, in that case, the relevant part of the IAA’s reasons simply stated “I am not satisfied that there are exceptional circumstances to justify the IAA getting new information regarding the applicant’s application for protection in Nauru”, while in the present case the IAA referred to a series of matters.

13    In my view, the last sentence of [6] of the IAA’s reasons in the present case is best read as the IAA’s conclusion as to why it did not propose to exercise the discretion in s 473DC to get new information. As I read the paragraph, the IAA set out a series of matters to which it had regard in reaching the conclusion expressed in the last sentence of the paragraph. Accordingly, it seems to me that the IAA did, in effect, conflate the requirements of ss 473DC and 473DD. That is, the IAA in effect read the requirements of s 473DD into s 473DC.

14    Accordingly, in my view, the IAA fell into the same error that was the subject of the decision in EMJ17. As in EMJ17, the error lies in the IAA thinking the discretion in s 473DC(1) was confined by a requirement that there exist, at the time of considering whether to exercise the discretion to get new information under s 473DC(1), “exceptional circumstances” within the meaning of s 473DD(a) that would justify the IAA later considering the information: see EMJ17 at [63].

15    I acknowledge that there are differences between the wording of the paragraph of the IAA’s reasons under consideration in EMJ17 and the paragraph under consideration in the present case. However, for the reasons already indicated, I think the effect of the reasoning is substantively the same.

16    I note for completeness that [6] of the IAA’s reasons arguably contains a further error in relation to the reference to “credible personal information”, but it is unnecessary to deal with this point.

17    For these reasons, the primary judge erred, at [16]-[19] of the Reasons, in rejecting a comparable proposition that was advanced by the appellant below. It is unnecessary to examine this part of the Reasons in detail. Ground 1 of the notice of appeal is made out.

Ground 2

18    In light of the conclusion in relation to ground 1, it is unnecessary to consider ground 2.

Conclusion

19    For these reasons, the appeal is to be allowed. I propose to make orders to the following effect:

(a)    The appeal be allowed.

(b)    The orders of the primary judge be set aside and in lieu thereof:

(i)    The decision of the IAA be set aside;

(ii)    The matter be remitted to the IAA for determination according to law; and

(iii)    The Minister pay the applicant’s costs of the proceeding in the Federal Circuit Court of Australia.

(c)    The Minister pay the appellant’s costs of the appeal.

20    I will hear from the parties as to the form of the orders. [Discussion as to the form of the orders then ensued.]

Associate:

Dated:    30 May 2019