FEDERAL COURT OF AUSTRALIA

BDR18 v Minister for Home Affairs [2020] FCA 212

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

LEE J:

A    INTRODUCTION

1    The appellant is a Shia Hazara and an Afghan national, whose home area is the district of Jaghori within Ghazni province. He arrived at Christmas Island in August 2012 and was thus designated an unauthorised maritime arrival under the Migration Act 1958 (Cth) (Act).

2    In May 2016, the appellant applied for a Safe Haven Enterprise Visa (SHEV). That application was refused by a delegate of the first respondent (Minister) in March 2017. The appellant appeals from a dismissal by the Federal Circuit Court of an application for judicial review of a decision of the second respondent (IAA), which had affirmed the refusal by the Minister’s delegate not to grant the appellant a SHEV.

3    It is unnecessary for the purposes of this appeal to detail further the factual and procedural background. It is uncontroversial and can be found at [2]–[24] of the judgment below: BDR18 v Minister for Home Affairs [2018] FCCA 2737.

4    The appellant advanced three grounds of appeal (a further ground, Ground Two, was abandoned prior to the hearing). Each ground was supplemented by particulars, which I will set out upon dealing with each ground. The grounds of appeal were as follows:

(1)    the primary judge erred in holding that the IAA did not fail to consider a claim raised clearly or squarely on the material before the IAA and did not, thereby, make a jurisdictional error (Ground One);

(3)    the primary judge erred in holding that the IAA did not act unreasonably in failing to consider whether to exercise its power under s 473DC(3) of the Act (Ground Three);

(4)    the IAA failed to comply with s 473DD(a) and s 473DE(1) of the Act (Ground Four).

5    As will be explained below, Ground Four was not advanced before the primary judge, and there was a dispute between the parties as to whether leave ought to be granted to permit the appellant to advance this ground. Grounds One and Three are in relevantly identical terms as those advanced in the Court below.

6    For the reasons which follow, none of the grounds withstands scrutiny. It follows that the appeal must be dismissed.

B    GROUND ONE

B.1    The particulars, the IAA decision and the decision of the primary judge

7    The particulars to this ground were as follows:

(1)    The appellant provided a written submission to the delegate on 16 December 2016. The written submission noted that the appellant “is a young adult”.

(2)    The appellant provided a written submission to the IAA on 6 April 2017 (First Submission) (IAA decision at [4]).

(3)    The IAA noted that the First Submission “contends that ‘the IAA [should] take into consideration [the appellant's] young age and relatively little experience of adult life in Afghanistan’” (IAA decision at [8]).

(4)    The IAA recognised this contention as a “claim” (Youth Claim) (IAA decision [8]). The Youth Claim related to a fear of persecution on the basis of membership of a particular social group, that is, Afghan youths.

(5)    The IAA held the Youth Claim was “new information” under s 473DC of the [Act], applied the test under section s 473DD to the claim and was “not satisfied there are exceptional circumstances to justify the consideration of this new information”.

(6)    On this basis, the IAA failed to consider the Youth Claim.

(7)    This amounted to a jurisdictional error in circumstances where:

a.    The Youth Claim was raised clearly or squarely on the material before the IAA.

b.    The IAA considered the “inconsistent” information provided by the appellant about his age but failed to make any specific finding as to his age (IAA decision at [19] to [25]).

c.    There was country information before the IAA relevant to the Youth Claim:

i.    IAA invited the appellant to comment on new country information, the appellant responded with a submission referring to extracts of other country information that were not before the delegate (Second Submission) and the IAA was “satisfied that the information was not and could not have been provided to the delegate and that there are exceptional circumstances to justify considering it under s 473DD” (IAA decision at [13]).

ii.    The Second Submission contained country information regarding “Afghan youth” being “deprived of basic access to healthcare” and having “significantly worse mental health profiles” (Second Submission at page 13).

8    It is important to emphasise initially that the relevant claim, recognised as such by the IAA at [8] of its reasons, was said by the appellant to be that “the IAA [should] take into consideration [the appellant's] young age and relatively little experience of adult life in Afghanistan’” (Alleged Youth Claim). That passage was contained in a submission made to the IAA on the appellant’s behalf on 6 April 2017 (April 2017 Submission). The appellant submitted that the Alleged Youth Claim had been raised “clearly and squarely” on the materials and thus the IAA’s failure to consider that claim, due to its assessment of the Alleged Youth Claim as “new information” under s 473DC(1) (which it refused to consider pursuant to s 473DD), amounted to jurisdictional error.

9    In its reasons, the IAA stated the following in reference to the Alleged Youth Claim at [8]:

This claim was not before the delegate. It is new information. The applicant has previously claimed to have arrived as a youth and as discussed below I have considered his age more broadly; however to the extent that this submission is claiming that as a youth the applicant fears harm, this claim has not been expressly raised previously. Nor has the applicant expressly claimed that his relatively little experience of adult life would impact on his return. The applicant has not satisfied me that this information could not have been provided to the Minister before the delegate made his decision or that it is credible personal information which was not previously known and, had it been known, may have affected the consideration of the applicants’ claims. Having regard to all the circumstances, I am also not satisfied there are exceptional circumstances to justify the consideration of this new information.

10    The primary judge summarised at [27] the effect of the above passage in response to this ground and then held at [28]–[29]:

I do not accept that the material before the Authority required the Authority to address the alleged youth claim. The applicant never articulated the claim at any time before the delegate where he was represented and the Court finds that it cannot be said that such a claim clearly arose on the material before the Authority. The country information submitted to the Authority did not amount to a claim that the applicant feared persecution in Afghanistan simply because of his age or inexperience of adult life. That country information was put forward to support a claim to fear psychological harm if the applicant were to relocate to Mazar-e-Sharif and thus to render relocation unreasonable.

I accept the first respondent’s submission that no such claim clearly arose on the material before the Authority. No jurisdictional error as alleged in ground 1 is made out.

B.2    Legal principles

11    The term “clearly and squarely” is an invocation of now well-established principle, as set out in the judgment of the Full Court of this Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at 18–20 [58]–[61] per Black CJ, French and Selway JJ. Recently in Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; (2017) 257 FCR 111, the Full Court (Kenny, Tracey and Griffiths JJ) said the following at 139 [79]:

A body such as the IAA, which is conducting an inquisitorial review process in which there is a claim for protection under s 36(2)(a) of the Act must not only consider and determine the case as articulated by the protection visa applicant, but also do so in relation to an unarticulated claim which is nevertheless raised clearly or squarely on the material before that review body.

12    If I may respectfully say so, a helpful summary of the relevant principles was set out more recently by the Full Court of this Court (Collier, McKerracher and Banks-Smith JJ) in AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; (2018) 261 FCR 503 at 509–510 [18].

B.3    The appellant’s submissions

13    Although the submissions referable to this ground were somewhat unclear, it appears that the appellant advanced two interconnected submissions: first, it was submitted that the Alleged Youth Claim clearly and squarely arose on the material before the delegate and thus the IAA was in error to have classified that claim as “new information” (First Submission); and secondly, the appellant contended that the Alleged Youth Claim clearly and squarely arose on the material before the IAA, including material post-dating the delegate’s decision, such that the IAA fell into error by not considering that claim (Second Submission). Although necessarily overlapping, it is convenient that I deal with the submissions in turn.

B.3.1    The First Submission

14    Although it was unclear as to whether or not the appellant contended that the Alleged Youth Claim as purportedly arising on the material before the delegate was “articulated” or “unarticulated”, the written submissions pointed to two pieces of information that were before the delegate.

15    The first is a passage from a submission made to the delegate on the appellant’s behalf on 16 December 2016 (Delegate Submission) in support of a claim against relocating the appellant to Kabul, Mazar-e-Sharif and Herat. That passage is as follows:

[The applicant] is a young adult. Returning him to any part of Afghanistan would lead to a life of extreme hardship. In addition to the lack of emotional support from his family unit, has put [the applicant] under additional stress. is not qualified nor experience [sic] in any salary-generating activities. Therefore, he would not have the capacity to subsist in any region of Afghanistan.

16    Secondly, the appellant relies upon the delegate’s finding that the appellant was 23 years old at the time of the decision (Delegate’s Age Finding).

17    It is convenient to summarise what I understand to be the steps in the appellant’s argument on the First Submission:

(1)    the Alleged Youth Claim was raised before the delegate;

(2)    because the Alleged Youth Claim was so raised it could not be “new information” for the purposes of s 473DC(1);

(3)    because the Alleged Youth Claim was not “new information”, s 473DD could have no application;

(4)    because the IAA considered s 473DD to be engaged and determined that the Alleged Youth Claim did not satisfy either of paras (a) or (b) of that provision, it did not consider the Alleged Youth Claim (which it had incorrectly characterised as “new information”); and

(5)    it therefore follows that the failure to consider the Alleged Youth Claim amounted to jurisdictional error.

B.3.2    The Second Submission

18    The appellant’s submissions went further. He also submitted that, on the basis of all of the information that was before the IAA, including information submitted to the IAA that post-dated the delegate’s decision (Further Information), the Alleged Youth Claim arose. The Further Information was as follows.

19    First, the appellant points to the age of the appellant being in issue before the IAA, although noting that the IAA made no express finding in relation to his age (IAA’s Age Consideration).

20    Secondly, are the following passages (Report Contentions) in a submission made on the appellant’s behalf to the IAA on 12 December 2017 (IAA Submission), including:

We also draw your attention to the opinion of Dr Schuster who also describes the difficulties young men such as [the applicant], without supportive patronage networks, face when attempting to secure accommodation in Afghanistan.

21    The IAA Submission then set out the following portion of a transcript of interview with Dr Liza Schuster identified as being taken from a report authored by “Asylos”, entitled “Afghanistan: Situation of Young Male ‘Westernised’ Returnees to Kabul”:

Also if you do find somewhere to rent, even though this is very difficult, people don’t want to rent unless it is to a family. So the expectation is that families will rent apartments. If a single person, especially a woman, even a man, in general it won't be rented to him because he will be regarded with suspicion. Why isn’t he staying with an extended member of the family or with friends? If he is alone will [he] be bringing women in, is he going to have male friends who will be drinking, is he going to disturb other members of the block? So homes are normally rented to families, you normally will know somebody who will vouch for you. If you don’t, and I've actually seen this, you might be able to persuade one of the estate agents to rent you a property but then they will follow up, they will have had a conversation with you to try and identify mutual acquaintances and go through the network until they can get some information about you. They will want to know, are you a good character, are you going to pay your bills? The good character is very important. So if you are living in Kabul and you don’t have a social network, you don't have somebody who can vouch for you, it becomes very difficult to get a contract. And it can also be withdrawn from you within days. The case which I saw, in the building where I lived, there was somebody who was moving in and they hadn't fully unloaded the furniture and the word had come back — ‘don’t rent to this person’, and they had to pack up and move again. And that's not unusual. I got my place through a friend of a friend and that’s how it works.

22    A similar quotation is then set out (purportedly from a Professor Alessandro Monsutti). The provenance of this quotation is a little unclear, as it is footnoted to a source in the following way: “The Situation for Hazaras in Afghanistan, 9 August 2010, para 55), quoted in William Maley, “On Relocation to Kabul of Members of the Hazara Minority in Afghanistan”, 19 November 2012 , www.facebook.com/labo r4refugees/posts/”. In any event, the quote reads.

In Afghanistan, people are linked to their families and social networks. If you are from one place, you cannot readily relocate elsewhere. The state does not provide strong services. In a society where the state provides so little support, life is organised around social networks and face-to-face relations. If someone returns to Afghanistan, he or she could not live outside his or her traditional or family area.

23    The Report Contentions then conclude with the following submission by the appellant’s representative:

We submit that in the declining economic and security situation in Afghanistan, [the applicant] will struggle to find adequate employment to enable him [to] support and protect himself, and would clearly be at acute risk as a vulnerable young adult on return with no familial network to help protect him. We strongly submit that this risk is found throughout Afghanistan [in] its entirety and that relocation is unreasonable.

24    Thirdly, the appellant notes that the IAA Submission includes country information which contends that “deportees are the most likely group of all Afghan youth to be deprived of basic access to healthcare and have significantly worse mental health profiles than youth with no migration background” (Country Information Contention). That information was drawn from a report referred to as the “EASO report”, and was submitted to the IAA in response to its invitation to comment on new country information obtained from various sources, including the Department of Foreign Affairs and Trade. The IAA held that the IAA Submission in its entirety was “new information” under s 473DC(1) and it was satisfied that the requirements of s 473DD were satisfied, including that there were exceptional circumstances to justify consideration of that information.

B.4    Consideration

B.4.1    The First Submission: The claim was not raised before the delegate

25    As is evident from the authorities following NABE, a claim does not need to be articulated or expressly advanced to be one that will attract the review obligation of the IAA. The IAA will also be required to consider an unarticulated claim if it is raised clearly or squarely on the material. Notwithstanding this proposition, the First Submission fails at the first hurdle; the Alleged Youth Claim was not raised before the delegate.

26    First, the Delegate Submission refers to the appellant as a young adult whose return would lead to a life of extreme hardship, that he would not be able to subsist in any region of Afghanistan due to the lack of emotional support from his family and that he is not qualified or experienced in any salary-generating activities. The Delegate Submission contained country information that the appellant said showed that his return was unreasonable, and this particular passage was submitted to the delegate as a reason not to return the appellant to any part of Afghanistan. The passage was set out in a section of the Delegate Submission dealing with the United Nations High Commission for Refugees Guidelines on Internal Flight and Relocation Alternative, under the heading of “(t)he Reasonableness Analysis”.

27    It cannot be said that this information clearly and squarely raises a claim before the delegate that the IAA was bound to consider. Although it may be accepted that the passage refers to the appellant’s status as a young adult, the submission stops short of a claim that he fears persecution on that basis. The reference to his lack of qualifications, work experience and lack of emotional support from his family are not sufficiently characterised as a claim that his inability to subsist in Afghanistan for those reasons amounts to persecution on the basis of his age. Nor can such a claim be inferred as being one which arises notwithstanding that it is unarticulated. To infer such a claim from this passage would amount impermissibly to “constructive or creative activity”: NABE at 18 [58].

28    Secondly, the Delegate’s Age Finding goes nowhere. For the delegate to have simply found that the appellant was 23 years old at the time of the delegate’s decision does not, without more, sufficiently raise a claim that the IAA was bound to consider that the appellant fears persecution on the basis of his being an Afghan youth. As it happens, as the Minister correctly submits, the appellant’s own claimed date of birth put him at the age of 25 by the time of the IAA’s decision. Either age would not naturally place him in the alleged social group of “Afghan youth” sufficient for the IAA to be required to consider the claim. As a matter of ordinary English, one would consider a “youth” to be a young man between boyhood and full adulthood.

29    On these bases, the IAA did not err in characterising the Alleged Youth Claim as “new information” under s 473DC(1). There being no challenge by this ground to the IAA’s determination that the tests in s 473DD were not satisfied, the First Submission must be rejected.

B.4.2    The Second Submission: The submission proceeds from a faulty premise, and in any event, the claim was not raised on the Further Information.

30    The Second Submission proceeds from a faulty premise. By contending that the Further Information before the IAA raised the Alleged Youth Claim, and that by application of the principles outlined above it must follow that the IAA was bound to consider that claim and could not cast it aside pursuant to s 473DC(1) and s 473DD, the submission in effect asserts, albeit implicitly, that a “claim” cannot be “new information” for the purposes of s 473DC(1). That assertion is incorrect.

31    Recently in FIR17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 122 at [8]–[11], I referred to two judgments of this Court in which the issue arose as to whether a “claim” can be “new information” for the purpose of s 473DC(1): CVK16 v Minister for Immigration and Border Protection [2017] FCA 1434; (2017) 257 FCR 297; AYK17 v Minister for Immigration and Border Protection [2019] FCA 1053. In CVK16, McKerracher J upheld (at 309 [50]-[51]) the finding of the judge below which was in the following terms (CVK16 v Minister for Immigration [2017] FCCA 235 at [45]):

[I]t is in my view artificial to distinguish between “claims” and “information”. While a “claim” in the most general terms is simply an expression of fear of return to another country for some reason, a “claim” does not exist in a vacuum. It only carries with it meaning capable of consideration if it is accompanied by asserted facts and circumstances. Those facts and circumstances are undoubtedly “information” for the purposes of ss.473DC and 473DD of the Migration Act.

32    On this basis, the IAA was correct to classify any information that was not before the delegate, whether arising on the materials as a “claim” or otherwise, as “new information”. Once again, there being no challenge made to the IAA’s determination under s 473DD, the Second Submission must fail.

33    However, even if it is permissible to distinguish between “claims” and “information” for the purposes of 473DC(1) such that the IAA is bound to consider any such claim, the appellant has failed to establish that the Further Information raised the Alleged Youth Claim.

34    First, the IAA’s Age Consideration is of no moment. No claim of persecution whatsoever is raised by the fact of the IAA’s consideration of the appellant’s age, particularly in circumstances where the IAA declined to make any specific finding on that issue.

35    Secondly, the Alleged Youth Claim is not raised by the Report Contentions, including the extracts of certain passages attributed to Dr Schuster and Professor Monsutti, set out at [21]–[22] above. Notwithstanding that the appellant’s representative in the IAA Submission introduced the relevant passage by Dr Schuster as ‘describ[ing] the difficulties young men such as [the applicant], without supportive patronage networks’, the extract of the transcript of interview with Dr Schuster does not refer to the youth of returnees; it refers to the difficulties for any person attempting to obtain rental accommodation in Kabul as a single person. Given the title of the Asylos Report is cited as “Afghanistan: Situation of Young Male ‘Westernised’ Returnees to Kabul”, it may have been suggested that the IAA could have found that the passage was directed to the plight of young male returnees. However, in the absence of more of the Asylos Report being before the IAA that inference simply cannot be drawn. The passage attributed to Professor Monsutti goes no further, likewise not referring at all to the youth of returnees.

36    The concluding submission of the appellant within the Report Contentions set out at [23] contends that the appellant will struggle to support himself in Afghanistan by way of employment, and without a family network he would be at acute risk as a vulnerable young adult. The Minister submitted, adopting the reasoning of the primary judge at [28], that this submission did not amount to a claim of persecution in Afghanistan simply because of his age or inexperience of adult life, but rather was put in support of a claim of psychological harm if he was relocated. Although this may be so, I nevertheless accept the submission of the appellant on this point that the fact that some of the material was provided in a different context, that is in relation to the issue of relocation, does not mean that the material was not before the IAA for all purposes. Regardless, however, the Report Contentions point only to the difficulties of young adults subsisting in Afghanistan generally without familial support. They do not raise a claim that clearly emerges on the materials that the appellant fears persecution on the basis of him being an Afghan youth.

37    Thirdly, the Country Information Contention was contained within the IAA Submission, and included the contention that young Afghan returnees suffer deprivation of basic access to healthcare and have significantly worse mental health profiles than other youth. As with his response to the Report Contentions above, the Minister also disputed that this information raised a claim that the IAA ought to have considered for the reason that it was directed to the potential for the appellant to suffer psychological harm if he was to be relocated. Pausing here, it is worth noting that there is some force in the appellant’s submission on this point. Ms Ambikapathy for the appellant argued that given the IAA Submission, which included the Country Information Contention, was accepted as new information in its entirety, it is not for the IAA to “quarantine the relevance or use” of that information for one purpose, being country information, in circumstances where it was also relevant to other issues, namely the Alleged Youth Claim. However, even accepting that to be the case, it is no answer to the question of whether the Country Information Contention can be properly regarded as a claim to fear persecution as an Afghan youth which was raised clearly and squarely before the IAA. In my view, it cannot.

38    The Country Information Contention rises no higher than the contention that Afghan youth returnees experience worse mental health outcomes than non-returnees and that they are deprived of access to healthcare. It is not a claim to fear persecution on the basis of his status as a member of a social group, being Afghan youths. As the primary judge correctly held at [28], the Country Information Contention was put forward to support a claim to fear psychological harm, not on the basis of a fear of persecution. No claim raises clearly and squarely from this material.

B.4.3    Conclusion on Ground One

39    It is to be borne in mind that a finding that a claim clearly emerges is not to be made lightly: AYY17 at 510 [18]. Further, even if it was the case that this ground was more finely balanced, it remains to note that the appellant was represented at all stages of the application and review processes and the judicial review proceeding. As was recognised by the primary judge and by the Minister in his submissions, the appellant faces the further hurdle that a Court will be less willing to accept a submission that a claim has clearly or squarely arisen on the materials if the party is represented and has had opportunities to advance that claim: AYY17 at 510 [18], 514 [30]–[31]; Kasupene v Minister for Immigration & Citizenship [2008] FCA 1609; (2008) 49 AAR 77 at 84 [21] per Flick J.

40    For these reasons Ground One must fail.

C    ground three

C.1    The particulars

41    This ground was particularised as follows:

(1)    The IAA made numerous adverse credibility findings based on apparent inconsistencies and evolutions of the information arising out of the evidence given by the appellant:

a.    at the arrival interview on 17 September 2012, entry interview on 19 November 2012 and/or visa interview on 1 December 2016; and/or

b.    In his invalid protection visa application lodged on 27 September 2013 (Invalid Application), his subsequent but superseded Safe Haven Enterprise Visa application lodged 16 May 2016 (Superseded Application) and his final Safe Haven Enterprise Visa application lodged 31 May 2016 (SHEV Application).

(2)    The decision of the delegate made no mention of the Invalid Application or the Superseded Application.

(3)    On 14 December 2017, the IAA requested a copy of the statutory declaration of the appellant in the Invalid Application under a “Post Referral Request For Documents”.

(4)    The apparent inconsistencies or evolutions in the information provided by the appellant, particularly in relation to the Invalid Application and the Superseded Application, were not put to the appellant.

(5)    As a result of the apparent inconsistencies or evolutions in the information provided by the appellant, the IAA did not accept a number of the appellant's claims and upheld the decision not to grant the appellant a visa, but did so on a different basis to the delegate.

(6)    In these circumstances, the IAA ought to have considered whether to exercise its power under s 473DC(3) and invite the appellant, orally or in writing, to comment on the documents, the apparent inconsistencies or evolutions in the information provided by the appellant.

(7)    The IAA failed to do so and, accordingly, the IAA fell into jurisdictional error.

C.2    The appellant’s submissions

42    In support of this ground, the appellant pointed to the IAA’s finding of certain inconsistencies in his evidence which led it to make adverse credibility findings. These included:

    a finding that the appellant was not a truthful witness with regard to his date of birth (at [25]);

    findings that the appellant’s evidence regarding certain assertions had ‘evolved’, ‘changed’ or ‘varied’ (at [31], [38], [46]); and

    findings that there was no credible basis to certain claims and that they had been provided in order to enhance his claims for protection (at [52], [57]).

43    The essence of the appellant’s complaint on this ground is that it was unreasonable for the IAA to not have exercised its discretion under s 473DC(3) to request his comment on these apparent inconsistencies. Such a request was required, it was said, because the delegate had not had before him, or had regard to, some of the evidence relied upon by the IAA that demonstrated those inconsistencies, namely the Invalid Application and the Superseded Application.

44    In making this submission, the appellant seeks for this Court, as it did in the Court below, to draw the inference that the Invalid Application was not before the delegate. This was said to be clear for three reasons. First, by reason of the fact that the delegate did not expressly refer in its reasons to either application. Secondly, that inference was also said to be open on the basis that the IAA had made a formal request to the Department of Home Affairs (Department) for that application. It is said that in circumstances where it was incumbent on the Secretary of the Department, under s 473CB(1)(b) and (c), to provide to the IAA the documents provided by the appellant to the delegate, and any other material in the Secretary’s possession or control that the Secretary considers relevant to the review, the IAA’s request for the Invalid Application makes clear that the delegate must not have had the Invalid Application before it. Thirdly, the appellant made submissions in respect of the affidavit of Alan Smith sworn 15 March 2019 (Smith Affidavit) filed by the Minister, which was read during the hearing in this Court. The Smith Affidavit showed that on 28 November 2016, the delegate “viewed” a document which contained, among other things, the Invalid Application. As I detail more fully in respect of Ground Four below, the appellant asserted that such access, being more than three months before the delegate’s decision, was not sufficient to establish that it was before the delegate at the time he made the decision. To the extent the primary judge found that no inference could be drawn that the Invalid Application was not before the delegate, his Honour was said to be in error.

45    It was said to follow that, as a consequence of the delegate not having considered those applications, there was nothing obvious or any signal to the appellant from the delegate’s decision that would have prompted the appellant to have made submissions or seek to give any new information to the IAA about the matters arising from those applications.

46    The appellant thus submitted that because the IAA had found the above inconsistencies in the appellant’s evidence, including between the Invalid Application, the Superseded Application other evidence, the IAA should have requested the appellant’s comment on those inconsistencies as new information.

47    To support this proposition the appellant relies upon the decision of the Full Court of this Court in Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; (2017) 253 FCR 475. The appellant points to the fact that in that case, as here, the IAA affirmed the decision on a different basis than the delegate. He points to the reasons of the Full Court in CRY16 at 494 [82] where it was held that it was unreasonable for the IAA to fail to consider the exercise of the discretionary power in 473DC(3) in circumstances where the IAA “knew that it did not have, but the respondent was likely to have, information on his particular circumstances and the impact upon him of relocation”.

48    The appellant also relies on the decision of Barker J in DFW16 v Minister for Immigration and Border Protection [2018] FCA 746. In that case his Honour found at [62] that the IAA should have at least considered whether to invite the appellant to comment on apparent inconsistencies it had identified in two applications. That finding was made, it was submitted in similar circumstances to the appellant’s case, in a context where the delegate had made no reference to the earlier applications and the IAA had made adverse credibility findings based on inconsistencies in the appellant’s evidence.

49    On these bases the appellant contended that the IAA ought to have considered the exercise of its power under s 473DC(3) to request that he provide comment on those inconsistencies, and the fact that he did not do so was legally unreasonable.

C.3    Consideration

50    As is plain from the foregoing summary, it should be noted at the outset that the appellant’s submissions on this ground proceeded from the premise that the Invalid Application was not before, and the Superseded Application had not been considered by, the delegate. The Minister disputed this contention, relying upon the Smith Affidavit which he contended established that this was not in fact the correct position. As will be explored more fully in consideration of Ground Four, I accept the Minister’s submission on this point. Proceeding from that acceptance, the balance of the appellant’s submissions on this ground must fall away. Be that as it may, I nevertheless propose to deal with the underlying merits of the appellant’s contentions.

51    The starting point of the analysis is as was stated by the Full Court of this Court (Reeves, Robertson and Rangiah JJ) in DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12; (2018) 258 FCR 551 at 568–569 [69]:

[T]he starting point must be the terms of Pt 7AA and, subject to Pt 7AA, the obligation on the Authority to review a fast track reviewable decision by considering the review material without accepting or requesting new information and without interviewing the referred applicant: s 473DB(1). Also, by s 473DA, Div 3 is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Authority. …

52    This does not mean, however, that the discretion to request new information pursuant to s 473DC(3) is at large. As was stated by Gageler, Keane and Nettle JJ in Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217 at 227 [21] (Gordon J agreeing at 245 [86], Edelman J agreeing at 250 [100]):

the various powers conferred on the Authority by Div 3 of Pt 7AA are conferred on the implied condition that they are to be exercised within the bounds of reasonableness, in the sense explained in Minister for Immigration and Citizenship v Li [(2013) 249 CLR 332], with the consequence that an unreasonable failure to exercise such a power can render invalid a purported performance by the Authority of the duty imposed on it by s 473CC to conduct a review and either to affirm or to remit the decision under review.

53    What is required to establish legal unreasonableness will depend on the facts of each case. It must therefore be borne in mind that analogous cases are to be treated with caution lest they distract from the Court’s ultimate task. As Nettle and Gordon JJ stated in Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 at 574 [84]:

[L]egal unreasonableness is invariably fact dependent and requires a careful evaluation of the evidence. That is, assessment of whether a decision was beyond power because it was legally unreasonable depends on the application of the relevant principles to the particular factual circumstances of the case, rather than by way of an analysis of factual similarities or differences between individual cases. Where reasons are provided, they will be a focal point for that assessment. It would be a rare case to find that the exercise of a discretionary power was unreasonable where the reasons demonstrated a justification for that exercise of power.

(emphasis in original)

54    With this in mind, I accept the submissions of the Minister that CRY16 and DFW16 are not apposite. As the Minister correctly submitted, this was not a case like CRY16 where the IAA decided the matter on a basis not relied upon by the delegate that had never been previously raised so there was no evidence about it. In CRY16 the Full Court held that the issue of internal relocation of the appellant to Lebanon, which was the basis upon which the IAA rejected the appellant’s claims, had never been explored or been the subject of findings by the delegate: at 494 [82]. That is not this case. Here, even if it be accepted (which I do not) that the Invalid Application was not before, nor was the Superseded Application considered by, the delegate, the issue of inconsistencies in the appellant’s evidence in a number of respects had been a live issue before the delegate. It is not to the point that some of the findings of the delegate and the IAA differed in respect of that evidence. As the Minister correctly submitted, the mere fact that the IAA’s reasoning differed from that of the delegate cannot without more give rise to an obligation on the IAA to consider the exercise of its s 473DC(3) power given the scheme of Part 7AA, and in particular s 473DB(1): DGZ16 at 568–569 [69].

55    The Minister made two submissions in respect of the appellant’s reliance on DFW16. First, he submitted that that primary judge was correct at [36] to find that case to be distinguishable. Secondly, and alternatively, the Minister submitted that DFW16 was wrongly decided. As I indicated during the hearing, given I have come to the conclusion that the Minister’s first submission on this ground should be accepted, it is unnecessary that I proffer a view as to the correctness of that decision.

56    As to the first submission, in DFW16, the previous visa application that was not referred to by the delegate appeared to be a significant, if not the only, piece of evidence that the IAA compared with the appellant’s subsequent evidence to reach its conclusion that there were inconsistencies in the appellant’s evidence over time. In those circumstances, Barker J found that the IAA had acted unreasonably in failing to consider whether it should invite the appellant to comment on those inconsistencies before finally disposing of the appellant’s visa application: at [62]. That is not the case here. Here, the IAA did not find the presence or absence of a past claim based only, or even principally, upon the Invalid or Superseded applications. As the Minster put it, the Invalid and the Superseded Applications in this case were thus “simply part of a body of material noted by the IAA such that none had particular significance or were the only basis for the findings made by it”. The primary judge was therefore correct to hold at [37] that the IAA was under no obligation to expressly consider the exercise of its s 473DC(3) power.

57    Ground Three must therefore fail.

D    ground four

D.1    The particulars

58    The particulars for this ground were as follows:

(1)    The Invalid Application was not before the delegate.

(2)    On 14 December 2017, the IAA requested a copy of the Invalid Application under a “Post Referral Request For Documents”.

(3)    The Invalid Application was ‘new information’ under s 473DC.

(4)    The IAA had regard to and considered the Invalid Application.

(5)    The IAA failed to consider whether there were ‘exceptional circumstances’ to justify consideration of the Invalid Application in accordance with s 473DD(a).

(6)    The IAA made numerous adverse credibility findings based on apparent inconsistencies and evolutions of the information arising out of the evidence given by the appellant, including information in the Invalid Application.

(7)    The IAA failed to give the Appellant particulars of the Invalid Application in accordance with s 473DE(1).

D.2    Leave

59    This ground was not raised before the primary judge. As I mentioned to the parties during the hearing, I was content to hear submissions on the merits of the ground, but would reserve my decision on the issue of leave.

60    The principles as to the grant of leave to raise a fresh ground on appeal are summarised in the judgment of the Full Court of this Court in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588. In that case, the Court (Kiefel, Weinberg and Stone JJ) said at 598–599 [48]:

The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. …

61    The Minister forcefully resisted the grant of leave in both his written and oral submissions on the basis that the appellant failed to provide an adequate explanation as to why it was not raised below. Counsel for the appellant with commendable frankness conceded there was no adequate explanation.

62    During the hearing, Counsel for the Minister pointed to the prejudice occasioned by the fact that the Minister could have called evidence on this point below. The appellant countered this by saying that given the Smith Affidavit was filed in the proceeding, and that evidence was of a kind that the Minister could have called below, there was no prejudice.

63    As I noted to Counsel for the appellant during the hearing, migration cases are not a species of appeal litigation where the usual rules do not apply. The granting of leave is a statutory discretion which has to be exercised conformably with the mandate in s 37M(3) of the Federal Court of Australia Act 1976 (Cth), which requires any such discretion to be exercised consistently with the overarching purpose.

64    In the absence of any adequate explanation as to why the point was not raised previously, and accepting the submission of the Minister that other evidence may have been available and adduced below if the point had been taken in a timely fashion, I do not consider leave should be granted. The notion that migration appeals can be converted to hearings de novo is one which should be dispelled. Although not decisive, I am fortified in this conclusion by the consideration that even if I were to grant leave, the ground lacks merit, as the following reasons demonstrate.

D.3    The appellant’s submissions on Ground Four

65    This ground relies upon the same premise as that raised by Ground Three, namely that the Invalid Application was not before the delegate. However, it asserts that this premise, if correct, should found a conclusion that the requirements of 473DD(a) and s 473DE(1) of the Act were not the subject of compliance.

66    As referred to above, the appellant submits that this Court ought to find that the Invalid Application was not before the delegate for three reasons: first, it was not referred to expressly by the delegate; secondly, the IAA made a formal request to the Department for it to be provided; and thirdly, that the Smith Affidavit shows no more than that the delegate had, over three months prior to the decision, accessed the Invalid Application from the Department’s files, such access it was said was not sufficient to establish that it was before the delegate at the time he made the decision.

67    Much was made by the appellant during argument on the appeal of the third reason. The first and second reasons appeared to be called in aid as support for that reason. No doubt this was because the Minister put great emphasis in his written and oral submissions on the Smith Affidavit being a complete answer to the appellant’s assertion that the delegate had not had the Invalid Application before him. The appellant’s submission as to why the Smith Affidavit was no answer to his contentions on this ground, as I understand it, proceeded by the following steps.

68    First, the appellant noted that the Smith Affidavit, which was unchallenged, showed that on 28 November 2016, the Delegate “viewed”, but did not “extract”, a document which contained, among other things, the Invalid Application (including the statutory declaration that accompanied the Invalid Application).

69    Secondly, the appellant then relied upon s 473DC(1)(a), which states that “new information” is, inter alia, information that was not before the Minister when the Minister made the decision under section 65. He submitted that this paragraph showed that two requirements must be met in order for information to be “new”: that the information was not before the Minister; and that it was not before the Minister when the Minister made the decision. The appellant made submissions in respect of each requirement.

70    In relation to the requirement that the information was not before the Minister, the appellant submitted that for information to have been before the Minister, it must have been “literally” before him in a “physical sense”. Conversely, it was said, information will not be “before” the Minister simply because it is within the knowledge of the Department, or within the Minister’s constructive knowledge in the sense of being accessible to him, or under his control. Reliance for this proposition was placed upon the decision of the Full Court of this Court in DTK17 v Minister for Immigration and Border Protection [2018] FCAFC 170; (2018) 265 FCR 538 at 551 [37]–[38] per McKerracher, Gleeson and Burley JJ.

71    The submission then turned to the express wording of the provision requiring that the information was not before the Minister when the decision was made. The appellant submitted that information viewed by the delegate at some point in time, here some nearly four months prior to the decision, but which was not before him at the time of making the decision, is still capable of being “new information”. That is, the appellant submitted that there is a temporal element within s 473DC(1)(a) which required contemporaneity.

72    It was said that the mere fact that the delegate may have been aware of the Invalid Application, at a point in time earlier than the decision, and may have continued to have access to that information, is not enough.

73    The next step in the submission was that because the Invalid Application was not before the delegate at the time of the decision and it was therefore “new information” for the purposes of s 473DC(1), the delegate was therefore required to assess whether there were exceptional circumstances to justify considering the new information pursuant s 473DD(a). The appellant submitted that it did not and therefore its decision was infected by jurisdictional error.

74    During the course of oral submissions, I raised with Counsel for the appellant the notion that the requirements of s 473DD are cumulative; that is, in order for the IAA to consider any such new information, that information needs to satisfy both s 473DD(a), the exceptional circumstances requirement, and (b), which relevantly provides that the referred applicant must satisfy the IAA that the new information which they have given the IAA was not, and could not have been, provided to the delegate before the delegate made the decision, or is credible personal information. In response, the appellant submitted that s 473DD(b) does not apply because that paragraph contemplates information that is referred to the IAA by the applicant, not information of this kind. I put to Counsel that what ultimately must flow from s 473DD(a) and (b) being cumulative is that if the information cannot satisfy this requirement in (b), then s 473DD in its entirety cannot be satisfied. On that basis, after some discussion, Counsel ultimately conceded that the very nature of the Invalid Application meant that it was a type of information not contemplated by s 473DD. The submission as ultimately formulated therefore became that the IAA was not permitted to have regard to that information, irrespective of whether the requirement of paragraph (a) was satisfied. On that basis, the appellant during oral submissions ultimately did not press the part of this ground which impugned the IAA’s failure to give particulars of the new information, pursuant to s 473DE.

75    Finally, the submission concluded by arguing that because the IAA considered the Invalid Application in making its decision, in particular in coming to its conclusion that there were inconsistencies in the appellant’s evidence as outlined above at [42], it therefore “considered” that new information when this was not permitted. This was contended to have amounted to jurisdictional error on the part of the IAA.

D.4    Consideration

76    Again, even if it was open to be raised, this ground fails at the first hurdle: I do not accept that the Invalid Application was not before the delegate at the time of the decision.

77    As I indicated to Counsel during the course of oral submissions, I do not accept that the passage in DTK17 is authority for the proposition that the Act can be sensibly interpreted as requiring that all relevant evidence be viewed on or about the day of the delegate’s decision. The high-water mark, it seems to me, of the appellant’s submission is the content one gives to the word “when” in 473DC(1)(a). As I stated during the hearing, there is some force in the submission of the appellant that that content is to be determined as a matter of fact and degree. For instance, it could not be sensibly said that if the delegate looked at the material the day before the decision that it is not material before the delegate when the delegate made the decision. However, as the Minister conceded, there may be a situation where if the information was before the delegate at a time so remote from the decision-making process it could not be sensibly regarded as satisfying the provision.

78    The passage in DTK17 does not support the appellant’s argument. That passage, on my reading, draws a distinction between what in different contexts of the law might be regarded as knowledge and attribution of knowledge. It does not provide support for the proposition that paragraph (a) is satisfied because the delegate viewed the Invalid Application some three months or so before the decision was made. Nor did Counsel for the appellant point to any authority supporting the asserted contemporaneity requirement attached to the word “when”.

79    It may have been a somewhat more persuasive submission had the Smith Affidavit not been read. Although I agree with the reasoning of the primary judge at [34] that the absence of express reference by the delegate to the Invalid Application is not determinative, there is some force in the appellant’s reliance on the fact that the IAA requested from the Department the information that had allegedly not been submitted to the IAA in accordance with s 473CB(1). Nevertheless, as the appellant’s Counsel rightly submitted, whether the Invalid Application was not before the delegate is a question of fact in respect of which the appellant bore the onus. As I said during the hearing, the difficulty with the appellant’s case on this ground is that it is put in circumstances where this issue was not a contested factual issue below.

80    After consideration of the evidence before me, I am not satisfied, as required by s 140 of the Evidence Act 1995 (Cth), that the Invalid Application was not before the delegate.

81    No leave should be granted in relation to Ground Four (and it would fail in the event leave was granted).

E    Conclusion

82    None of the grounds advanced on the appeal having succeeded, the appeal must be dismissed with costs.

Associate:

Dated:    26 February 2020