FEDERAL COURT OF AUSTRALIA

BLR17 v Minister for Immigration and Border Protection [2019] FCA 2167

ORDERS

THE COURT ORDERS THAT:

1.    The Appellant be granted leave to file an amended notice of appeal.

2.    The appeal be allowed.

3.    The orders of the Federal Circuit Court made on 24 May 2019 be set aside and in lieu thereof:

(a)    a writ of certiorari issue quashing the decision of the Second Respondent; and

(b)    a writ of mandamus issue, remitting the matter to the Second Respondent and requiring it to determine the matter according to law.

4.    The First Respondent pay the Appellants’ costs of the appeal and the proceeding below.

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

REASONS FOR JUDGMENT

MURPHY J:

1    This is an appeal by a family from Iran from a judgment of the Federal Circuit Court delivered on 24 May 2019, dismissing an application for judicial review of a decision of the second respondent, the Immigration Assessment Authority (Authority), made 10 March 2017. The Authority affirmed the decision of the delegate of the first respondent, the Minister for Immigration and Border Protection (Minister), to refuse to grant the appellants protection visas. The first appellant is the father of the family. The three other appellants are his wife and their two children. The second, third and fourth appellants did not make separate applications for visas and their claims are based on the fact that they are members of the same family unit as the first appellant.

2    For the reasons I now explain, I made orders on the day of the hearing to allow the appeal and for the Minister to pay the appellants’ costs.

The facts and procedural history

3    The first appellant is an Iranian citizen who arrived in Australia by boat with his family, without visas, in November 2012. Each of the appellants was therefore an “unauthorised maritime arrival” under the Migration Act 1958 (Cth) (the Act).

4    On 13 July 2015 the Minister invited the appellants to apply for a Temporary Protection Visa or a Safe Haven Enterprise Visa (protection visa). The appellants applied for a protection visa on 7 August 2015, and the appellants set out their claims for protection in a statement by the first appellant and written submissions by their migration agent attached to the visa application. Relevantly to the appeal, the first appellant’s claims included that, if returned to Iran, there is a real chance that he will face persecution by the Iranian authorities because of his anti-Iranian government political beliefs.

5    That claim can be seen in the first appellant’s statement and written submissions. In his statement the first appellant said:

I was against [President Ahmadinejad’s] election and policies and refused to have his picture on my taxi. I was particularly against his regime as I believe they were corrupt and have destroyed Iran beyond repair. They were dictators who did not allow freedom of thought, speech or choice in Iran in any respect.

6    The written submissions said:

The applicant instructs that his opinions in this respect are seen as a betrayal of the Islamic regime and his occupation, in which is expected to be a supporter and advocate for the government and their policies.

And also that:

…the applicant’s views are of a kind likely to expose him to persecution if removed to Iran. The Department must have regard to the nature of the applicant’s views, not merely the ways in which he has expressed them. The applicant instructs that he opposes the oppression and corruption that is endemic in the Iranian government and their affiliated groups, and in particular, the way in which the Iranian regime restricts freedom of expression and religion.

We contend that the risks faced by the applicant cannot be assessed upon the implicit premise that the applicant could remain silent or lie about his political views…

7    A delegate of the Minister interviewed the first appellant on 22 and 28 September 2015. On 16 September 2016 the delegate decided to refuse to grant the first appellant a protection visa.

8    The appellants were “fast track applicants” under the Act. Pursuant to Pt 7AA of the Act the delegate’s decision was a “fast track reviewable decision”, and it was therefore referred to the Authority for review.

9    On 10 March 2017 the Authority decided to affirm the delegate’s decision not to grant the appellants protection visas.

10    On 6 April 2017 the appellants filed an application for judicial review in the Federal Circuit Court. The Court made orders dismissing the application on 24 May 2019: BLR17 & Ors v Minister for Immigration and Anor [2019] FCCA 1352.

The appeal to this Court

11    On 21 June 2019 the appellants filed an appeal to this Court against the orders of the primary judge.

Ground One

12    Ground one of the appeal reflects the first ground of the application below. It alleged:

1.    The Federal Circuit Court erred in failing to find that the Immigration Assessment Authority (Authority) had failed to consider the first appellant’s claim to fear serious harm in the foreseeable future due to his political opinion.

Particulars

a.    The first appellant claimed to fear harm for reason of his political opinion opposed to the Iranian regime.

b.    The first appellant had previously expressed his political opinion by refusing to display election posters for President Ahmadinejad on his taxi.

c.    The Authority found the first appellant would not be at risk of any harm upon return to Iran due to his “refusal to put Ahmadinejad pasters [sic] on his taxi, from any claimed links to Christian taxi passengers or purported Christian in Iran or perceived anti-Islamic behaviour” (see Authority’s reasons for decision, [24]).

d.    Ground one of the first appellant’s further amended application dated 18 October 2018 in the Federal Circuit Court contended that the Authority had considered the first appellant’s risk of future of [sic] harm due to his political activities in the past, but not his risk of harm due to his political opinion in the future.

e.    The Federal Circuit Court found that the first appellant’s political actions were a manifestation of his political opinion (Federal Circuit Court reasons for judgement (FCC), [29]).

f.    The Federal Circuit Court held that the Authority in considering the first appellant’s risk of harm due to his political activities implicitly considered his risk of harm due to his political opinion (FCC, [25] - [28]).

g.    The Federal Circuit Court fell into error in holding that distinction between the first appellant’s political opinion and political activities was a distinction without difference.

h.    Whether the first appellant would be at risk of serious harm in the future due to his political opinion, was a distinct question from whether the first appellant would be at risk of harm due to his specific political actions in the past.

i.    The Authority - by failing to consider if the first appellant faced a real chance of serious harm in the foreseeable future due to his political opinion - asked itself the wrong question and/or failed to complete its statutory task to assess the first appellant’s claims to be a refugee within the meaning of s36(2)(a) of the Migration Act 1958 (Cth) (the Act).

13    This ground is based on [15], [16], and [24] of the Authority’s reasons, where the Authority said:

[15] The applicant husband claims that he was targeted and suffered reprisals for refusing to put posters of Mahmoud Ahmadinejad on his taxi. At the PV interview he stated that in late 2011, Basij officials came to the taxi rank and questioned him about ten times. In 2009 and 2010, hundreds of thousands of demonstrators protested against official claims that Mahmoud Ahmadinejad won the 2009 presidential election. The response by Iranian authorities was swift and brutal, with thousands of demonstrators detained, beaten and harassed by security forces. The clampdown by Iranian authorities was so overwhelming that prisons were overflowing, forcing some protesters to be held in make-shift detention facilities, including buses or other vehicles. I accept that in 2009 the applicant husband may have refused to put Ahmadinejad posters on his taxi, however I do not accept as plausible that in such a heightened security environment, if authorities suspected the applicant husband of engaging in anti-government activity, they would wait two years to take action against him.

[16] The applicant claims that Iranian authorities believed he engaged in anti-government activities because he refused to put Ahmadinejad posters on his taxi and carried Christian passengers….At the PV interview, both the applicant husband and the applicant wife stated that it was not possible to trust anyone in Iran as the authorities have the population under surveillance and there are informers everywhere. The applicant husband stated that in the taxi driver ranks there were informants spying on other drivers and reporting to the Basij… I do not accept that the applicant husband was imputed with an anti­government profile as a result of refusing to put Ahmadinejad posters on his taxi or because he carried Christian passengers. Nor am I satisfied that these actions combined would impute him with an anti-government profile.

…

[24]…The applicant husband and applicant wife claim to have been targeted by Iranian authorities, including the Basij and Herasat, however I find it implausible that persons at such risk would nevertheless be able to depart Iran using their own passports through an international airport without encountering difficulties. I do not accept that the applicant husband and the applicant wife were of interest to Iranian authorities, including the Basij and Herasat, when they departed Iran or that the Basij has visited the applicant husband’s father since they departed Iran. For these reasons I consider the applicants do not face a real chance of harm from Iranian authorities due to the applicant husband’s refusal to put Ahmadinejad posters on his taxi, from any claimed links to Christian taxi passengers or purported Christian activity in Iran or perceived anti-Islamic behaviour.

(Emphasis added.)

14    Before the Federal Circuit Court the appellants submitted that the Authority failed to give proper consideration to the first appellant’s claims that if he returns to Iran he will face a real chance of persecution because of his anti-Iranian government political beliefs.

15    The primary judge did not accept that submission. Her Honour said the following (at [26]-[29]) and dismissed this ground:

[26]    After considering the applicant’s husband’s evidence throughout the protection visa process in relation to his claims, including inconsistencies in the applicant’s evidence and the circumstances in which the applicant’s wife was issued with her passport in 2012, the IAA concluded:

For these reasons, I consider the applicant’s do not face a real chance of harm from Iranian authorities due to the applicant husband’s refusal to put Ahmadinejad pasters on his taxi, from any claimed links to Christian taxi passengers or purported Christian in Iran or perceived anti-Islamic behaviour.

[27]    A fair reading of the IAA’s reasons, when read in context and in their entirety in the sense required by the reasoning in Wu Shan Liang reveals that the IAA concluded that the applicant did not face a real chance of harm based on a prospective assessment of whether the applicant would face such harm in the foreseeable future.

[28]    I find that the IAA did give consideration to whether the first applicant faced a fear of harm based on his political opinion in the foreseeable future. It is not unreasonable for an assessment of foreseeable risk to be conducted against the background of what has occurred in the past.

[29]    For completeness, to the extent that the applicant seeks to draw a distinction between the applicant’s political conduct as distinct from his political views in this ground, this is, in my view, a distinction without a difference. It is clear that the IAA accepted that the first applicant refused to put up the poster in his taxi in 2009. That and any other claimed political action is a mere manifestation of an underlying political opinion which drives such action. To the extent that the IAA considered whether the first applicant faces a reasonable chance of harm in the future arising from his political actions, that in turn implicitly also covers his underlying political opinion.

Consideration

16    It is uncontentious that the Authority gave consideration to whether on return to Iran the first appellant will face a real chance of persecution because of his past political activities, including his refusal to carry posters of President Ahmadinejad in his taxi. It is plain from its reasons that the Authority found that the first appellant’s political activities in Iran were not such that he would be imputed by the Iranian authorities with having an anti-regime political opinion and there was therefore not a real chance that he would face persecution. The appellants accepted that it was open to the Tribunal to so find.

17    The appellants submitted, however, that the Authority erred by failing to consider whether on return to Iran there was a real chance that the first appellant will face persecution as a result of any future public expression of his political beliefs. They submitted that the Authority’s reasons show that it focused only on whether the first appellant would have an adverse profile with the Iranian authorities because of his past political activities.

18    Before me the Minister accepted that the Authority’s reasons made no express reference to the first appellant’s political beliefs, but argued that the first appellant’s political profile with the Iranian authorities, actual or imputed, was “inextricably linked” to his political beliefs. The Minister contended, in summary, that the Authority’s findings at paragraphs 15, 16 and 24 show that it did consider the first appellant’s political actions and thus his political beliefs, and found that he did not have and would not be imputed by the Iranian government with having an anti-Iranian government profile and thus he would not face a real chance of persecution for that reason, on return to Iran. The Minister respectfully submitted that the primary judge’s reasoning and findings were correct.

19    To decide whether if the first appellant returns to Iran there is a real chance he will face persecution because of his political beliefs necessarily required the Authority to engage in some speculation or prediction as to what might occur in the reasonably foreseeable future: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 279 (Brennan CJ, Toohey, McHugh and Gummow JJ) and 288 (Kirby J); NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [13] (Gray, Tamberlin and Lander JJ). When making a prediction as to what may happen in the future it will, of course, often be instructive to examine what has happened in the past.

20    But absence of past persecution does not deny that there may be a real chance of persecution in the future: S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473 (S395/2002) at [74] (Gummow and Hayne JJ)). For example, a visa applicant may give expression to his or her political beliefs in the future, which may give rise to him or her developing an adverse profile with the relevant authorities and result in a real chance of persecution. It is therefore necessary for the decision-maker’s consideration to go further than just the visa applicant’s past political actions or activities.

21    In the present case it was necessary, first, for the Authority to consider and decide whether the first appellant held anti-Iranian regime political views as he claimed. Second, if the Authority found that the first appellant held such views, it was necessary for it to consider questions such as:

(a)    how strongly he held those anti-regime political views;

(b)    whether on return to Iran he was likely to, or might, express those anti-regime political beliefs in the reasonably foreseeable future, and if so through what actions or activities; and

(c)    what potential repercussions the first appellant might face if he did express his anti-regime political beliefs in such a way or ways.

Further, if the Authority found that the first appellant held anti-regime political beliefs but that on return to Iran he was unlikely to publicly express those beliefs, it was necessary to consider whether he would be staying silent in order to conceal those beliefs from the Iranian authorities: see s 5J(3)(c)(iii) of the Act; S395/2002 at [40] and [41] (McHugh and Kirby JJ) and at [80] (Gummow and Hayne JJ).

22    The Minister accepted that the Authority’s statutory task of review required it to give consideration to such questions. The thrust of his submissions was that the Court should hold that, on a fair reading of the Authority’s reasons, it did so.

23    I do not accept the Minister’s submissions.

24    First, the Authority’s finding that there was not a real chance that the first appellant will face persecution for his political beliefs if he returns to Iran, was almost entirely backwards-looking. It focused on the first appellant’s past political activities and the attendant implications in relation to any anti-regime profile he had or would be imputed with.

25    There is little or nothing in the Authority’s reasons to support the Minister’s submission that it should be understood to have considered the questions in [21] above:

(a)    at paragraph 15, the Authority said that the first appellant may have refused to carry posters of President Ahmadinejad on his taxi and implicitly accepted that he had so refused in the balance of its reasons. But the Authority did not accept that this meant that the first appellant was suspected by Iranian authorities of engaging in anti-government activities in 2009. It found that in such a “heightened security environment” it was implausible that the Iranian authorities would have waited two years to take action against him;

(b)    at paragraph 16, the Authority did not accept that the first appellant was or would be imputed with having an anti-government profile as a result of his refusal to put posters of President Ahmadinejad on his taxi or because he carried Christian passengers; and

(c)    at paragraph 24, the Authority only looked back at past matters. Having done so the Authority found that the first appellant and his wife were not of interest to Iranian authorities; and did not face a real chance of harm from Iranian authorities due to, amongst other things, the first appellant’s refusal to put posters of President Ahmadinejad on his taxi.

26    The Authority’s reasoning only addressed whether, by reason of the first appellant’s past activities he was likely to have developed an adverse profile with the Iranian authorities such that he may face a real chance of persecution on return to Iran. That consideration was backwards-looking and the Authority did not turn to consider whether the first appellant might publicly express those views or engage in anti-regime political activities in the future. It did not consider whether any such future political expression or activities might mean that he will face a real chance of persecution in the reasonably foreseeable future.

27    Second, the Authority did not assess whether on return to Iran the first appellant will face a real chance of persecution by reference to contemporaneous country information. That too supports the inference that the Authority’s consideration of the risk of persecution was backwards-looking. It is difficult to see how the Authority could give genuine and realistic consideration to the first appellant’s claim that if he returns to Iran he will face a real chance of persecution as a result of any future expression of anti-regime political beliefs, without the Authority having referred to contemporaneous country information in relation to the existence of the risk of harm faced by people who have or are imputed with anti-regime political beliefs.

28    Third, the Authority implicitly accepted that the first appellant refused to put posters of President Ahmadinejad on his taxi in 2009, in circumstances where: (a) he claimed to have been told by his employer that he must show support for President Ahmadinejad’s candidacy in the presidential election; and (b) there existed a “heightened security environment” such that if the Iranian authorities suspected him of engaging in anti-government activity they would have promptly taken action against him.

29    It was therefore open to the Authority to find that the first appellant’s political views were strongly held. Yet at no point did the Authority make an express finding that the first appellant actually held anti-regime political beliefs or as to the strength of those views, either in relation to the period up to 2012 when the appellants left Iran or at the time of the Authority’s decision in March 2017. The Authority summarised the first appellant’s claims and implicitly accepted that in 2009 he refused to put posters of President Ahmadinejad on his taxi because he was against President Ahmadinejad’s policies and election. But the Authority did not make a finding as to the existence or strength of the appellant’s claimed belief that he was against President Ahmadinejad’s regime, considered it to be corrupt and dictatorial, and believed that it had destroyed Iran beyond repair. Not having done so the Authority was hamstrung in giving appropriate consideration to whether the first appellant would, if he were to return to Iran, engage in anti-regime political activities in the reasonably foreseeable future, as a result develop an adverse profile and therefore face a risk of persecution.

30    In my view the Authority did not give genuine and realistic consideration to the first appellant’s claim that if he returns to Iran he will face a real chance of persecution as a result of any future expression of his anti-regime political beliefs, which consideration could have been dispositive of the review: see NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [63] (Black CJ and French and Selway JJ); ETA067 v The Republic of Nauru [2018] HCA 46; (2018) 360 ALR 228 at [14] (Bell, Keane and Gordon JJ). As the Minister accepted, such an error is ‘material’ in the sense that it denied the appellants the possibility of a successful outcome: Hossain v Minister for Immigration and Border Protection [2018] HCA 34 (Hossain) at [30] (Kiefel CJ, Gageler and Keane JJ. The Authority’s error was therefore jurisdictional.

31    In my respectful view the learned primary judge erred by failing to so find.

32    Ground one of the appeal is established.

Ground Two

33    Ground two of the appeal is an amalgam of grounds three and four of the application below.

34    It arises from the fact that, following the delegate’s refusal to grant the protection visas to the appellants, they provided further material to the Authority on 27 October 2016, being:

(a)    a written submission;

(b)    three character references (the Character References);

(c)    a copy of a summons for the first appellant to attend the Taxi Service Security Office issued by the Judiciary of the Islamic Republic of Iran dated 29 April 2012 with an accompanying English translation (the Summons to attend the Taxi Service Security Office); and

(d)    a copy of a document confirming a taxi licence cancellation, issued by the Taxi Service Management Authority of Tehran with an accompanying English translation (the Taxi Licence Cancellation). That document is not dated but the “Expiry Date” is noted as 30 April 2012;

(together, the October Information).

35    On 28 November 2016 the appellants provided the Authority a further submission which largely concerned the fact that on 27 November 2016 the first appellant was baptised as a Christian (the Baptism Information).

36    Section 473DD of the Act restricts the circumstances in which the Authority is able to consider new information. It 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.

The term “new information” is defined in s 473DC(1) of the Act to mean documents or information that were not before the Minister (which includes his delegate) when the decision under s 65 was made, and that the Authority considers may be relevant.

37    This ground concerns the Authority’s decision that there were not ‘exceptional circumstances’ under s 473DD for it to consider the October Information, and that it was thus prohibited from doing so. The Authority said the following at paragraphs five to seven:

[5]    The submission also includes new information which was not before the delegate, comprising character references from individuals associated with a church attended by the applicants, including a pastor, a refugee and migrant community worker and a Small Group Leader. In addition, translated copies were submitted of a summons dated 29 April 2012 for the applicant husband to appear before the Taxi Service Security Office and a cancelled taxi licence with an expiry date of 30 April 2012.

[6]    The new information relates to events that pre-date the delegate’s decision and it is not apparent why they were not provided earlier. The applicants’ representative (who did not represent the applicants at the PV stage) has the title ‘Refugee Advocate’ and does not appear to be a registered migration agent. I note that the applicants received the benefit of legal representation in 2015 when they made their PV applications, which included a detailed forty-one page statement of claims, articulating why the applicant husband has a well-founded fear of persecution and why he faces a real chance of persecution if he were to be returned to Iran.

[7]    The applicants’ PV interviews occurred over a two day period in September 2015, were around five and a half hours in total duration and the applicants were accompanied at the interviews by their (former) representative. The issues to which the new information relates were discussed at the PV interviews. The applicants had ample opportunity in the year between the PV interviews in September 2015 and the delegate’s decision in September 2016 to present additional information, but did not do so. I am not satisfied that there are exceptional circumstances to justify considering the new information.

38    The Authority accepted (at paragraph 8) that it was permitted to consider the Baptism Information, doing so in the following terms:

[8]     On 28 November 2016 a further submission was received from the applicants’ representative about the membership of the Gateway Baptist Church and advising that the applicant husband was baptised at the church on 27 November 2016. I am satisfied that this information could not have been provided to the delegate prior to the PV decision. As part of the delegate’s decision included a finding that the applicant husband had not converted to Christianity as he had not been baptised, I accept that exceptional circumstances exist to justify considering this new information.

39    Under this ground of appeal the appellants alleged:

The Federal Circuit Court erred by not finding that the Authority asked itself the wrong question or failed to consider all relevant circumstances in assessing whether it was satisfied there were “exceptional circumstances” to consider new information submitted by the appellants.

Particulars

a.    The appellants’ claims for protection included a claim that the first appellant’s licence as a taxi driver had been cancelled due to his political activities; and a claim that the appellant’s had converted to Christianity.

b.    On 27 October 2016, the appellants’ [sic] submitted to the Authority:

i.    an original and translation of a summons dated 29 April 2012 requiring the first appellant to appear at the Taxi Service Security Office;

ii.    an original and translation of a notification that the first appellant’s Taxi Driving Licence had been cancelled; and

iii.    references from Christian churches and groups the first appellant had participated in (the October information).

c.    The material was “new information” that the Authority could not consider unless s 473DD(a) and (b) of the Migration Act 1958 (Cth) (the Act) were satisfied.

d.    The Authority found that it was not satisfied “exceptional circumstances” existed to justify consideration of the new information.

e.    The Authority did not expressly consider if the new information was “credible personal information” pursuant to s 473DD(b)(ii) of the Act.

f.    The appellants by the further amended application in the Federal Circuit Court argued:

i.    by ground 3 that the Authority adopted an unduly narrow definition of exceptional circumstances in considering the October information; and/or

ii.    by ground 4 that the Authority failed to consider relevant exceptional circumstances – whether the October information satisfied s 473DD(b)(ii) of the Act and/or the information’s relevance to the assessment of the appellants’ claims.

g.    The Federal Circuit Court noted that the Authority had found exceptional circumstances existed in relation to the first appellant’s baptism certificate based on the fact the Baptism occurred after the Delegate’s decision, and on the certificate’s relevance to the Delegate’s adverse findings that the appellants had not been baptised (FCC, [68] - [69]).

h.    The Federal Circuit Court held that the matters the Authority referred to in relation to the October information (FCC, [67]), coupled with the finding that the baptism certificate satisfied s 473DD(a) in part due to its relevance to the appellant’s [sic], demonstrated that the Authority had had regard to all the relevant circumstances in the assessment of exceptional circumstances (FCC, [70] - [71]).

i.    The Federal Circuit Court fell into error in relying on the Authority’s consideration of the Baptism certificate to infer that the Authority had considered the probative value and relevance of the October information to the first appellant’s claims.

j.    The Authority’s reasons in relation to the October information focused exclusively on the appellant’s opportunities to provide the information to the Minister and contained no consideration of the new information’s relevance, credibility, probative value, or whether it satisfied s 473DD(b)(ii).

k.    It can be inferred that the Authority treated the question of whether the appellants had an opportunity to provide the October information to the Minister as decisive and consequentially:

i.    adopted an unduly narrow definition of exceptional circumstances; and/or

ii.    failed to consider circumstances relevant to exceptional circumstances.

40    The primary judge did not accept grounds three and four of the application below. Her Honour referred with approval (at [61]-[66]) to the decisions in AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111; (2018) 162 ALD 442 (AQU17) and Minister for Immigration v CQW17 [2018] FCAFC 110; (2018) 162 ALD 427 (CQW17). Then her Honour said the following (at [67]-[74]) and dismissed those grounds:

[67]    In the present case, the IAA dealt with the new information at paragraphs 6 and 7 of its written reasons. In considering the documents submitted on the applicant’s behalf on 27 October 2016 (as distinct from the submissions themselves to which the IAA did have regard), the IAA noted:

a.    the new information pre-dated the delegate’s decision and it was unclear why it had not been provided earlier;

b.    the documents were provided by a representative who did not appear to be a registered migration agent;

c.    the applicant had been assisted by legal representation at the time that he submitted his initial application for a SHEV supported by a detailed 41 page submission;

d.    the applicant had the benefit of two protection visa interviews which occurred over two days in September 2015 and lasted for over 5 hours in total;

e.    the new information related to issues discussed in the PV interviews; and

f.    the applicant had ample time following the PV interviews to provide the new information before the delegate made their decision some 12 months later, but did not do so.

[68]    The IAA then stated that it was not satisfied that there were exceptional circumstances which warranted the IAA considering the new information.

[69]    Importantly, in considering the IAA’s decision in relation to the new information provided on 27 October 2016, it is appropriate to also have regard to how the IAA dealt with the further correspondence received about the applicant having been baptised on 27 November 2016. This information was provided to the IAA on 28 November 2016 to which it did have regard. The IAA said:

I am satisfied that this information could not have been provided to the delegate prior to the PV decision. As part of the delegates’ decision including a finding that the applicant husband had not converted to Christianity as he had not been baptised, I accept that exceptional circumstances exist to justify considering this new information.

[70]    It is implicit in the IAA’s findings in relation to the November 2016 material that the IAA considered that information to be credible personal information which might have had a bearing on the outcome of the applicant’s application. This evidences that the IAA was aware of the types of factors which might go towards establishing whether exceptional circumstances did exist.

[71]    I conclude that when the IAA’s reasons are read fairly and in their entirety, there is no evidence that the IAA applied an unnecessarily restrictive interpretation of ‘exceptional circumstances’. Nor do I find that in this case, the IAA determined whether ‘exceptional circumstances’ existed by reference only to whether or not the applicant could have provided the material to the delegate at an earlier stage in the process.

[72]    It is evident from both the factors outlined in paragraph 67, when read in the context of the IAA’s reasons relating to all of the new information provided, that the IAA had regard to all of the relevant circumstances in coming to its view that exceptional circumstances did not exist in this case. For example, the IAA had regard to the fact that the applicant had the benefit of legal advice from a very early stage in the process as well as a lengthy PV hearing over a two day period which ensured that all of the relevant information was before the decision maker.

[73]    It is also noteworthy that in this case, as in AQU17, the applicant does not point to any other factor that the IAA ought to have had regard to but which it did not in considering whether ‘exceptional circumstances’ existed.

[74]    I find that the conclusion reached by the IAA was reasonably open to it.

The Minister’s submissions

41    The Minister submitted that the Authority’s reasons do not disclose any error in its approach to dealing with the October Information, and that the primary judge did not fall into error in rejecting grounds three and four of the application below. The Minister argued that, because subs (a) and (b) of s 473DD are cumulative and the Authority determined that no exceptional circumstances existed under subs (a), it was not required to proceed to consider whether:

(a)    the information could not have been provided to the Minister before the delegate’s decision (under subs (b)(i)); or

(b)    the information was credible personal information which was not previously known and, had it been known, may have affected consideration of the appellants’ claim (under subs (b)(ii)).

42    The Minister further submitted that in finding that there were no exceptional circumstances to justify considering the October Information, the Authority had regard to the following matters:

(a)    the appellants had the benefit of representation in 2015 when they made their protection visa applications, which included a detailed 41-page statement articulating why the first appellant had a well-founded fear of persecution and why he faced a real chance of persecution if he were to be returned to Iran;

(b)    the appellants’ protection visa interviews occurred over a two-day period in September 2015, and were approximately five and a half hours in total duration and the appellants were accompanied at the interviews by their former representative;

(c)    the issues to which the new information related were discussed at the protection visa interviews; and

(d)    the appellants had ample opportunity in the year between the protection visa interviews in September 2015 and the delegate’s decision in September 2016 to present additional information, but did not do so.

43    The Minister contended that the matters the Authority considered went to both the relevance and the significance of the October Information as well as the ability of the appellants to provide that material before the delegate’s decision, which shows that it did not apply an unduly narrow definition of ‘exceptional circumstances’ under s 473DD(a). The Minister also argued that the Authority’s approach to the Baptism Information demonstrated that it was aware of the types of factors which might go towards establishing whether exceptional circumstances exist to justify considering new information, which supported the submission that the Authority had not taken too narrow a view of exceptional circumstances.

44    Lastly, the Minister submitted that, similarly to AQU17, the appellants were unable to identify any fact or matter which materially bore upon the Authority’s consideration of exceptional circumstances which was not taken into account and, had it been taken into account, would have made any difference to the outcome. The Minister contended that even if the Authority applied too narrow a definition of exceptional circumstances, that error was not material because it had not been shown that there were or may have been exceptional circumstances.

Consideration

45    It is plain as a matter of statutory interpretation that the requirements of s 473DD(a) and (b) are cumulative. It is therefore impermissible for the Authority to consider new information unless it is satisfied as to the existence of exceptional circumstances under subs (a) and also as to the requirements under subs (b)(i) or (ii): see Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 (Plaintiff M174) at [31].

46    The Minister was therefore correct in submitting that the Authority, having decided that no exceptional circumstances existed under subs (a), was not required to consider the matters under subs (b)(i) and (ii). But that submission somewhat missed the point, and failed to directly meet the appellants’ argument. As the Full Court said in CHF16 v Minister for Immigration and Border Protection [2017] FCAFC 192; (2016) 257 FCR 148 (CHF16) at [46]: “[i]n a formal sense the Minister’s submission is correct but, as a matter of substance, it has a tendency to sidestep the real issue.”

47    “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 they may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon. In Plaintiff M174 at [30] the plurality (Gageler, Keane and Nettle JJ with whom Gordon and Edelman JJ each agreed in separate reasons) said in relation to this:

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”.

Given the breadth of the phrase, whether exceptional circumstances exist such that new information may be considered by the Authority will depend on the particular facts of the case.

48    Further, as White J found BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958; (2017) 254 FCR 221 (BVZ16) at [9], while the requirements of subs (a) and (b) are cumulative they may nevertheless overlap to some extent, and thus consideration of the requirements under subs (b)(i) and/or (ii) may inform the Authority’s assessment of whether or not exceptional circumstances exist under subs (a). Accordingly one would expect the Authority to consider the subs (b) matters when considering whether exceptional circumstances exist in a given case, such that it can consider the new information.

49    Justice White’s approach was approved in Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; (2017) 257 FCR 111 (BBS16) at [102]-[104] (Kenny, Tracey and Griffiths JJ) where the Full Court confirmed that in deciding whether there are exceptional circumstances to justify considering new information, consideration must be given to all relevant circumstances. The Full Court held (at [111]-[112]) that the Authority had erred in that case because its satisfaction that exceptional circumstances did not exist was based only on the Authority’s finding that the applicant had not provided any explanation as to why the new information could not have been provided earlier, and it did not address other potentially relevant matters.

50    Similarly, in CHF16 at [43]-[45] (Gilmour, Robertson and Kerr JJ) the Full Court held that the Authority erred because it only considered the fact that the new information was not brought forward by the appellants earlier; it did not take into account why it was not brought forward earlier “or any other circumstances”; and it did not address itself to whether the material was credible personal information or information of such a character which was not previously known to the Minister and, had it been known, may have affected the consideration of the appellants’ claims.

51    In my view the Authority fell into a similar error in the present case.

52    The entirety of the Authority’s reasoning in relation to whether exceptional circumstances existed to justify it considering the October Information is found in paragraphs six and seven of its reasons (set out at [37] above).

53    It is therefore necessary to give careful attention to those paragraphs. In paragraph six of its reasons the Authority said:

The new information relates to events that pre-date the delegate’s decision and it is not apparent why they were not provided earlier. The applicants’ representative (who did not represent the applicants at the PV stage) has the title ‘Refugee Advocate’ and does not appear to be a registered migration agent. I note that the applicants received the benefit of legal representation in 2015 when they made their PV applications, which included a detailed forty-one page statement of claims, articulating why the applicant husband has a well-founded fear of persecution and why he faces a real chance of persecution if he were to be returned to Iran.

This shows that the Authority considered whether the appellants could have provided the October Information earlier and their reasons for not doing so. The first sentence expressly said that, and the balance of the paragraph referred to the fact that the appellants had the benefit of legal advice and the opportunity to provide the October Information earlier, but did not do so.

54    In paragraph seven the Authority said:

The applicants’ PV interviews occurred over a two day period in September 2015, were around five and a half hours in total duration and the applicants were accompanied at the interviews by their (former) representative. The issues to which the new information relates were discussed at the PV interviews. The applicants had ample opportunity in the year between the PV interviews in September 2015 and the delegate’s decision in September 2016 to present additional information, but did not do so. I am not satisfied that there are exceptional circumstances to justify considering the new information.

The first sentence of this paragraph again shows the Authority’s focus on whether the appellants could have provided the October Information earlier. Similarly, the third sentence of the paragraph shows that the Authority considered whether the appellants could have provided the October Information earlier, by noting in essence that they could have done so in the lengthy period between the protection visa interviews and the delegate’s decision. The final sentence just records the Authority’s conclusion on the issue of exceptional circumstances, not how that decision was reached.

55    In my view paragraph six of the Authority’s reasons and the first, third and final sentences of paragraph seven, show that the Authority only considered that the appellants had the opportunity to bring the October Information forward earlier, that they did not do so, and that they had provided no explanation in that regard. The Minister argued however that the second sentence of paragraph seven, in which the Authority said “[t]he issues to which the new information relates were discussed at the PV interviews” shows that the Authority’s consideration went further than that. The Minister argued that, read in context, this sentence shows that in deciding that there were not exceptional circumstances to justify considering the October Information, the Authority assessed the relevance and significance of that information.

56    I do not accept the Minister’s submissions. On a fair reading of the Authority’s reasons, without an eye keenly attuned to the perception of error, the second sentence of paragraph seven merely noted that the issues raised by the October Information had been discussed in the appellants’ protection visa interviews. That discussion can only have been about the appellants’ claims, it could not have been about the relevance and significance of the documents themselves as they had not at that point been brought forward. When that sentence is read in context, it is just another part of the Authority’s conclusion that the appellants could and should have brought forward the October Information earlier.

57    In deciding whether exceptional circumstances existed to justify it considering the Summons to Attend the Taxi Service Security Office and the Taxi Licence Cancellation, the Authority was required:

(a)    to consider all relevant circumstances, which one would usually expect to include consideration of the requirements under s 473DD(b)(i) and (ii): as noted above in the references to BVZ16, BBS16 and CHF16; and

(b)    to engage in an “active intellectual process” in that regard: Tickner v Chapman [1995] FCA 1726; (1995) 57 FCR 451 at 462-3.

58    First, in my view the Authority erred by failing to consider whether the Summons to Attend the Taxi Service Security Office and the Taxi Licence Cancellation satisfied the requirement under subs (b)(ii); that is, whether those documents constituted credible personal information which was not previously known and, had it been known, may have affected consideration of the appellants’ claims.

59    It is plain that the appellants brought forward those documents to support their claim that the cancellation of the first appellant’s taxi licence was related to his anti-regime political activities in Iran. The documents were obviously ‘personal’ but the Authority did not turn to consider whether they were ‘credible’, and if so whether they may have affected the delegate’s consideration of the appellants’ claims. If the Authority had considered the documents and decided they were credible, it was open for it to see them as providing substantial documentary support for the appellants’ claim. In deciding that exceptional circumstances did not exist to justify considering the documents, but going no further in its consideration than noting that the “issues” were discussed in the protection visa interviews, the Authority took too narrow a view of exceptional circumstances and thereby failed to consider all relevant circumstances.

60    Second, to merely note that the “issues” were discussed in the protection visa interviews (which can only have been a discussion of the appellants’ claim rather than about the documents themselves) shows that the Authority did not engage in an active intellectual process in relation to the relevance and significance of the documents. If those documents are genuine it was open to see them as providing documentary support for the appellants’ claims, but the Authority did not engage in an active intellectual process in relation to their relevance and significance. Had the Authority engaged in that process, the more relevant or significant it found the documents, the more the scales would tip in favour of a finding that exceptional circumstances existed to justify considering them: CAQ17 v Minister for Immigration and Border Protection [2019] FCAFC 203 at [92] (Derrington and Steward JJ).

61    Third, I do not accept the Minister’s submission that the fact that the Authority took the correct approach to assessing exceptional circumstances in relation to the Baptism Information shows that it adopted the correct approach in regards to the October Information. While I accept that it indicates that the Authority understood the correct approach, having regard to the Authority’s reasoning in paragraphs six and seven, I am satisfied that in relation to the two documents to which I have referred to, the Authority took too narrow an approach to exceptional circumstances. Understanding the correct approach and applying the correct approach are different things.

62    Fourth, it is correct that the Authority was not required to provide reasons in respect of its exercise of discretion under s 473DD: see CVS16 v Minister for Immigration and Border Protection [2018] FCA 951 at [25]-[30] (Bromwich J); BYA17 v Minister for Immigration and Border Protection [2019] FCAFC 44; (2019) 163 ALD 483 (BYA17) at [46]-[50] (Rares, Perry and Charlesworth JJ). But the Minister went further than that, essentially arguing that any deficiencies in the Authority’s reasoning in respect to the exercise of discretion under s 473DD should be understood in light of the fact that it was not required to provide reasons at all.

63    That argument has little force when the Authority set out over two paragraphs the reasons which it said underpinned its decision that exceptional circumstances did not exist to justify it considering the October Information. The fact that the Authority voluntarily provided those reasons rather than pursuant to an obligation, does not prevent a Court drawing inferences from the reasons: Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 177; (2016) 246 FCR 146 at [72] (Kenny, Flick and Griffiths JJ).

64    I consider the Authority’s error to be material in the sense that it denied the appellants the possibility of a successful outcome: Hossain at [30]. The Authority expressly rejected the appellants’ claim that the first appellant’s taxi licence was cancelled because of his political activities. If credible, the Summons to Attend the Taxi Service Security Office and the Taxi Licence Cancellation indicate that the first appellant was summonsed to attend the security office at around the same time that his taxi licence was cancelled. The documents are prima facie significant to the appellants’ claim that the first appellant suffered persecution at the hands of government bodies because of his anti-regime political activities. If they had been considered by the Authority, there is a realistic possibility that a different outcome would have been reached on the appellants’ visa applications.

65    Ground two is established.

Conclusion

66    I have made orders allowing the appeal and setting aside the orders of the Federal Circuit Court. In lieu thereof I made orders for the issue of a writ of certiorari to quash the decision of the Authority and a writ of mandamus issue to remit the application to the Authority to be determined according to law. I also made orders for the Minister to pay the appellants’ cost of the appeal and the proceeding below.

Associate:

Dated:    20 December 2019

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