FEDERAL COURT OF AUSTRALIA

CPU18 v Minister for Home Affairs [2019] FCA 922

ORDERS

THE COURT ORDERS THAT:

1.    The appellant’s notice of appeal filed on 4 February 2019 is dismissed.

2.    The appellant is to pay the first respondent’s costs to be taxed failing agreement.

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

REASONS FOR JUDGMENT

REEVES J:

1    This appeal concerns a confined issue relating to the Immigration Assessment Authority’s (the IAA) application of s 473DD of the Migration Act 1958 (Cth) in the course of conducting a fast track review of the appellant’s application for a Safe Haven Enterprise visa (SHEV). The appellant lodged that application in June 2017.

2    Section 473DD provides:

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.

3    In this appeal, the appellant claimed that the Federal Circuit Court judge erred in concluding ([2019] FCCA 208 at [21]) that the IAA had “[engaged] appropriately with the requirements” of that section when it concluded that it was not satisfied that exceptional circumstances existed to justify consideration of certain new information provided to it by the appellant (IAA Reasons at [10]).

4    In particular, the appellant claims that the primary judge erred in applying ss 473DD(b)(ii) above. Or, as expressed in his sole ground of appeal:

… The [IAA] failed to engage with the issue of exceptional circumstances, construed it narrowly and / or misapprehended what constituted exceptional circumstances and failed to intellectually engage with the issue ...

5    I interpolate that, at the hearing of this appeal, the appellant’s counsel did not press any of the other issues raised in his ground of appeal, or any of the other issues raised in his written submissions, including that related to the IAA’s Practice Direction.

6    The information in contention in this appeal was contained in a Personal Statement that was included in a bundle of documents the appellant claims he sent to the Minister of Home Affairs’ (the first respondent’s) Department in May 2016. It is not in dispute that the Department did not receive that bundle of documents. Nonetheless, the Personal Statement was before the IAA because, as recorded in its reasons (IAA reasons at [5]), it was included in a submission it received from the appellant on 21 August 2017. It is also not now in dispute that the Personal Statement included information which constituted new information for the purposes of s 473DD. That Statement was dated 9 June 2014 and was 30 pages long.

7    The IAA considered that new information and the application of s 473DD at [4]–[10] of its reasons. Having done so, it came to the following conclusion (IAA reasons at [10]): “[i]n the circumstances, I am not satisfied that exceptional circumstances exist to justify consideration of this new information”.

8    The course it followed to come to that conclusion may be summarised as follows. First, it described the circumstances in which the bundle of documents was sent to the Department and the contents thereof, including a “‘Personal Statement’ … dated 9 June 2014 relevantly including some new claims and information” (IAA reasons at [4]–[6]). Those circumstances led the IAA to conclude that the documents in the bundle were “new information” (IAA reasons at [6]).

9    Thereafter the IAA reviewed the contents of the Personal Statement itself. First, it observed that it contained some country information and some general background information. With respect to those two sets of information, it concluded it was “not satisfied that, had it been know [sic known], this new information may have affected consideration of the [appellant’s] claims”. By its terms, this conclusion is clearly directed to the concluding words of s 473DD(b)(ii) above: “had it been known, may have affected the consideration of the referred applicant’s claims”.

10    Next, the IAA reviewed the other information contained in the Personal Statement. Noting that its contents presented “a very different picture to [the appellant’s] evidence before the delegate”, it compared the version of various events as recounted to the delegate with those set out in that Statement (IAA reasons at [8]). That review was followed by the following reasoning (IAA reasons at [9]) that led, in turn, to its ultimate conclusion which is already set out above (see at [7]):

The Personal Statement is dated 2014 and the circumstances of its creation are unclear particularly given his protection visa and later SHEV application were lodged years later. The applicant had the assistance of representatives and accredited translators with his SHEV application (including the accompanying and contemporaneous statutory declaration), interview and post interview submission and should accurately reflect the applicant’s claims. The claims in the SHEV application, interview and post interview submission are those most recently raised by the applicant. The applicant has had a number of opportunities to provide his complete claims, including in the SHEV application, protection visa application, SHEV interview and post interview submission. No explanation has been given to explain the significant differences in the version of events now being presented.

11    There are, in my view, at least two salient features of this reasoning. The first is the topic addressed in the first sentence. In my view that relates to, what I will describe as, the timing issue raised, in part, by s 473DD(b)(i) above. Specifically, the fact that the Personal Statement was dated in 2014, about three years before the appellant lodged his SHEV application, told against any claim that it could not have been provided to the Minister before his delegate made his or her decision on that application. It should be noted that the appellant has not sought to contend to the contrary in issue in this appeal.

12    The second feature concerns the views expressed in the remainder of the paragraph. They draw a comparison between the claims the appellant made to the delegate and the claims he made in his Personal Statement. They highlight the assistance the appellant received to prepare the former and the fact that they comprised the most recent record of his claims. The final sentence then notes the absence of any explanation for “the significant differences in the version of events now being presented”.

13    Read together and fairly, I consider these observations are directed to the credibility of the personal information contained in the Personal Statement and to whether that information was likely to have been known previously to the appellant, within the terms of s 473DD(b)(ii). To be specific, they engage with the words of s 473DD(b)(ii): “is credible personal information which was not previously known …” (emphasis added).

14    It follows from this review of the IAA’s reasons that it did engage appropriately with the concept of exceptional circumstances as it is expressed in s 473DD. Conversely, it did not, as the appellant’s counsel claimed it did, adopt the inappropriately narrow approach described by White J in BVZ16 v Minister for Immigration and Border Protection (2017) 254 FCR 221; [2017] FCA 958 at [47]. As a consequence, I do not consider the primary judge erred in reaching the same conclusion (set out at [3] above).

15    For these reasons, there is no merit in the appellant’s sole ground of appeal. His notice of appeal must therefore be dismissed.

16    The orders will be:

1.    The appellant’s notice of appeal filed on 4 February 2019 is dismissed.

2.    The appellant is to pay the first respondent’s costs to be taxed failing agreement.

Associate:    

Dated:    14 June 2019