FEDERAL COURT OF AUSTRALIA

BKX18 v Minister for Home Affairs [2020] FCA 432

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of and incidental to the appeal, and of the application for an extension of time within which to appeal, to be fixed by a registrar if not agreed.

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

REASONS FOR JUDGMENT

LOGAN J:

1    The appellant is a citizen of the Republic of Iraq. He is an ethnic Kurd who adheres to the Sunni branch of the Islamic faith.

2    The appellant arrived in Australia by boat on 29 September 2012. He was not then the holder of a visa issued under the Migration Act 1958 (Cth) (the Act) authorising his entry into Australia. He is therefore what the Act (s 5AA) terms an “unauthorised maritime arrival”.

3    On 14 November 2015, the Minister whose office is now known as “Minister for Home Affairs” (Minister) issued to the appellant a notice under s 46A(2) of the Act. That permitted him to apply under the Act for a Temporary Protection visa or a Safe Haven Enterprise visa (SHEV). The appellant chose to apply for the latter. He applied under the Act for a SHEV on 7 March 2016.

4    On 11 April 2017, a delegate of the Minister decided to refuse the appellant's visa application. As the Act required, this decision was then referred to the Immigration Assessment Authority (Authority) for review. On 8 February 2018, the Authority decided to affirm the Minister’s delegate's decision.

5    The appellant then applied to the Federal Circuit Court of Australia (Federal Circuit Court) for the judicial review of the Authority’s decision. On 12 September 2018, the Federal Circuit Court dismissed the judicial review application. The appellant failed to file a notice of appeal in respect of the order of dismissal within the prescribed time. However, I was persuaded in February 2019 to grant him an extension of time. He has now appealed pursuant to that extension against the order dismissing his judicial review application.

6    As it did in the Federal Circuit Court, and quite properly, the Authority has filed a submitting appearance. The Minister is therefore the only active party respondent.

7    The appeal was initially heard in the May 2019 appeal sittings. However, the amount of time allocated for its hearing was insufficient for submissions to be completed, having regard to the issues pressed. That meant that the hearing of the appeal had to be adjourned to the next appeal sittings, which was in August 2019. Certainly in hindsight but probably also, with respect, in prospect, the time allocation in May for this case was always fraught with the prospect of an adjournment.

8    Overlisting of this type of case by the registry can also sometimes be antithetical to their timely disposal for another reason. In some migration appeals, if efficiently argued by counsel, the issues for determination emerge with such clarity after exchanges in oral argument that it is frequently possible, time permitting, to determine them the same day with reasons for judgment delivered ex tempore. Even if this appeal were of that category, and it was not, insufficient time remained to adopt that course once the submissions were finally completed.

9    The consequence of being obliged to adjourn or to reserve judgment can be, and in this case was, that other judicial duties and approved absences intrude such that delivery of judgment is then delayed. That is a matter of personal regret. I provide this explanation as a necessary courtesy to the parties and to sound a cautionary note to the registry in relation to listing practices. Lest it be thought otherwise, I also record that the length of time required for oral submissions was not a reflection of the efficiency of counsel but rather of the complexity and diversity of the issues raised by the grounds of appeal which were pressed. Each of those grounds was truly at least arguable. I have been much assisted by the submissions of counsel in relation to them. In particular, the appellant should be assured that his counsel, Mr Rebetzke, put forward everything which might reasonably and responsibly be said in favour of the allowance of the appeal.

10    I turn then to the grounds of appeal. As filed, they are:

1.    The learned trial judge erred in not holding that the [Authority] misconceived its task or asked a wrong question in the approach to the s 473DD(b)(ii) question of whether the new information was ‘credible new information.’

2.    The learned trial judge erred in not holding that the [Authority’s] decision was affected by jurisdictional error to the extent that it its finding that all new information was not information that could not have been given to the Minister before the date of the delegate's decision on 11 April 2017 in circumstances where the new information included documents produced on 31 May 2017.

3.    The learned trial judge, erred in law in interpreting s 473DD(a) of the [Act] as a ‘threshold’ test.

4.    The learned trial judge erred in not considering whether interpretation difficulties at the SHEV interview should have been considered by the [Authority] in determining whether there were exceptional circumstances to accept new information.

5.    In the premises, the learned trial judge erred in not finding that the [Authority’s] decision was affected by jurisdictional error by regarding itself legally bound not to consider the new information referred to in grounds 2 and 3 of the application filed 22 March 2018 (that is, the new information with respect to the [appellant’s] contact with his family [ground 2] and the new information with respect to past harm to the [appellant’s] brothers and the identification of the perpetrators of past harm to the [appellant] [ground 3]).

[sic]

11    The appellant subsequently abandoned appeal ground 3. Understanding the remaining grounds of appeal also requires that grounds 2 and 3 of the grounds of review in the Federal Circuit Court be reproduced:

2.    The [Authority] erred in by regarding itself legally bound not to consider new information with respect to the [appellant’s] contact with his family.

Particulars

(a)    The [Authority] found the question of the [appellant’s] contact with his family was “extensively discussed at the SHEV interview, during which time the delegate identified concerns about the plausibility of [the appellant’s …] claim”.

(b)    The [Authority] failed to take into account the fact that there was imperfect communication at the SHEV interview via an interpreter as relevant to the tasks required by s.473DD(a) and (b);

  (c)    The decision not to consider the information was legally unreasonable.

3.    The [Authority] erred in regarding itself legally bound not to consider new information with respect to past harm to the [appellant’s] brothers and the identification of the perpetrators of part harm to the [appellant].

Particulars

(a)    The [Authority] failed to take into account the fact that there was imperfect communication at the SHEV interview via an interpreter as relevant to the tasks required by s.473DD(a) and (b);

   (b)    The decision not to consider the information was legally unreasonable.

[sic]

12    To deal with the grounds of appeal it is necessary to detail the claims made by the appellant for protection and the administrative consideration of those claims.

13    The appellant had the benefit of assistance from a migration agent in the preparation of his SHEV application. As initially formulated by him in a statutory declaration forming part of that application, the appellant made these claims. He stated that, on 30 May 2012, he had been engaged in organising, for delivery to customers, goods in storage in his business premises in the province (“S”) in Iraq, where he was born, when three men who were armed and had their faces covered entered the premises. The lights in the premises went off. One of the armed men then threatened to kill him if he did not pay them $US200,000 in three days’ time. He was also threatened with death and that “bad things” would happen to his family if he went to the police.

14    The appellant claimed that there had been an incident in his local area some six months previously in which a child had been kidnapped and, even after a ransom of $US350,000 had been paid, the child had been killed.

15    The appellant stated that he had discussed the threat made to him with his father who counselled him to leave Iraq. The appellant stated that he did not know why he personally had been targeted but that his family were considered wealthy because they operated businesses. The appellant formed the view that he would be killed if he did not leave Iraq. Accordingly, on 1 June 2012, he left Iraq for Malaysia. He then went to Indonesia and paid money to a people smuggler to be conveyed to Australia by boat.

16    As to why he did not seek help from authorities in Iraq in relation to the incident, the appellant stated:

There is no law or regulation in Iraq. It is a mess in Iraq. I knew that if I sought help I would receive no protection as no one cares. Even if I wanted to ask for help I couldn't as the men threatened that if I informed the authorities they would kill me.

17    The appellant also stated in the statutory declaration that he had not been in contact with his family for three years and was not aware as to whether they still lived in the area where the incident occurred. His stated last knowledge of them was that, after he had left Iraq, his family did not open four storage facilities used for business and had stayed away from them. He also stated that they had installed security cameras around their property and “never left the house on their own”.

18    The appellant stated that he feared that if he were to return to Iraq and the people who threatened him found out he was back that he would be targeted and likely killed.

19    The appellant also mentioned that, before the incident in 2012, he had travelled on separate occasions to Turkey, Syria and China on business. His business imported goods from Turkey and China.

20    Accompanied by his migration agent, the appellant attended an interview with an officer of the Minister’s department in relation to his SHEV application on 21 February 2017. The interview was conducted with the assistance of a Kurdish interpreter.

21    The Minister’s delegate accepted that the appellant was threatened in an attempt to extort money from him, as a member of a particular social group namely, “wealthy businessmen in [S]”. However, the delegate concluded, taking into account the circumstances in which the appellant had left Iraq and country information concerning the situation in S, that the chance that, if the appellant returned there, he would suffer harm by reason of his membership of that particular social group was remote. The delegate was not satisfied that the appellant faced a real chance of persecution were he to return to Iraq.

22    The appellant had the benefit of assistance from a solicitor and migration agent in relation to the review conducted by the Authority as a sequel to the rejection of his SHEV application by the Minister’s delegate.

23    The appellant’s solicitor made a detailed submission to the Authority on 31 May 2017. Annexed to that submission were statements made by the appellant, other members of his family and related documents, as well as some country information. There is no dispute that, in its reasons for decision, the Authority offered an accurate summary of the submission and the annexed documents. The Authority stated (at [4]):

4.    The [appellant’s] representative provided a submission to the [Authority] dated 31 May 2017. To the extent this discusses findings of the delegate this is not new information for the purpose of s.473DC(l) of the Act and I have had regard to it in my assessment. However, the submission raised new information consisting of: new claims of past harm to the [appellant’s] brothers; new claims that it was members of the Kurdistan Workers’ Party (the PKK) who harmed the [appellant] in the past; new claims as to why the [appellant] had not been in touch with his family in the three years prior to lodging the SHEV application; new claims about the quality of interpretation at the SHEV interview; and new country information. The following documents, which also constitute new information, were attached in support of the submission:

•    statutory declaration from the [appellant’s] dated 30 May 2017 (the statutory declaration) indicating that there were issues with the interpreter at the SHEV interview, providing new evidence on why he had not been in touch with his family, and raising new claims in relation to incidents of past harm to his brothers in Iraq;

•    an undated statement and accompanying translation by the [appellant’s] brother [M] relating to why the family had not been in contact [M’s] statement);

•    statement and accompanying translation by the [appellant’s] brother [Y] …, dated 22 May 2017 ([Y’s] statement);

•    ‘businessmen membership card’ of the [appellant’s] brother [Y], issued in 2010 and expiring in 2012 (the membership card);

•    copy and translation of a report from the Police Department of [ST] dated 20 August 2013 regarding an incident against the [appellant’s] brother [Y] (the August police report);

•    copy and translation of a medical report from [S] Emergency Hospital dated 15 September 2013 regarding an injury to the [appellant’s] brother [Y] (the hospital report);

•    photographs purporting to demonstrate the claimed assault against the [appellant’s] brother [Y] from an incident occurring in 2013, with an explanatory blurb from the [appellant] (2013 photos);

•    copy and translation of a report made by the [appellant’s] brother [Y] to the Police Department of [ST] dated 20 October 2016 (the October police report);

•    photographs purporting to show damage to property and injuries against the [appellant’s] brother [Y] from a claimed incident in December 2016 (the 2016 photos);

•    a purported article from PUKMEDIA dated 20 December 2016 reporting on the harm to the [appellant’s] brothers (the PUKMEDIA article); and

•    a statement and accompanying translation by Mr [A], undated (Mr [A’s] statement)

[sic]

24    The Authority’s reasons disclose that it then methodically addressed the submission and its annexures, commencing with the alleged deficiencies in translation at the interview on 21 February 2017. That makes it convenient first to address ground 4 of the notice of appeal.

Ground 4 – “interpretation deficiencies”

25    As the Authority accurately related in its reasons, the appellant made three claims in his statutory declaration which accompanied his solicitor’s submission with respect to interpretation deficiencies. The Authority detailed and analysed each of those claims, having first listened itself to a recording of the interview. Those claimed deficiencies and the Authority’s related findings were as follows:

    alleged mistranslation of the location of the appellant’s birth - alleged to have been translated as S, rather than the town of D. The Authority noted that D is in S province “and as such nothing turns on this matter”. The Authority also found, “Further there is other evidence in the referred material relating to the location of the appellant’s birth, supporting that [the appellant] was born in D as contended”;

    alleged mistranslation of the appellant’s ability to manage his business – the Authority found “nothing turns on the evidence in relation to whether he stated he could or could not manage a business”;

    alleged mistranslation of the location of the appellant’s storage facility – the Authority noted (correctly) that the Minister’s delegate’s decision stated that the storage facility was out of town but also noted (equally correctly) that this “was only one consideration in [the delegate’s] assessment of whether the applicant faced a real chance of future harm”. The Authority also stated that, “on listening to the SHEV interview, I understood the appellant’s evidence was that the storage facility was on the main street, 20 minutes away from his shop rather than out of town as stated in the decision record”. Accordingly, the Authority did not consider this was, as the appellant had asserted, an error on the part of the interpreter.

26    In relation to the alleged interpretation deficiencies in the interview, the Authority noted that, at the beginning of the interview, the appellant indicated that he could understand the interpreter. The Authority further noted that the appellant had been given an opportunity to liaise with his representative during the interview and the representative had made oral submissions at the end of the interview. The Authority also found (and this finding was not challenged in the court below) that neither the appellant nor the representative had “identified any concerns with the interpretation or suggested the applicant had not been able to put forward his claims due to any issues with the interpretation, either during the interview or any time up until the making of the decision”.

27    Having undertaken this analysis, the Authority concluded (at [8]):

The [appellants] have not satisfied me that this new information was not and could not have been provided to the Minister before the making of the decision, or that it is credible personal information, which was not previously known, and had it been so, may have affected consideration of the [appellant’s] claims. Further, having regard to all the above matters, I am also not satisfied that there are exceptional circumstances to justify considering this new information as set out in the [appellant’s] statutory declaration. I must not consider it.

[sic]

In light of the remaining grounds of appeal, the Authority’s formulation of this conclusion assumes quite some importance because it encapsulates the Authority’s understanding of the meaning and effect of s 473DD of the Act. In its reasons, the Authority repeated this formulation of the meaning and effect of s 473DD in its analysis of other annexures to the submission.

28    The learned primary judge, with respect accurately, observed (at [4]) of the Authority's reasons insofar as they addressed the subject of new information that the Authority had divided that subject into two categories, “consisting of, firstly, new claims about the standard of interpretation in the SHEV interview and secondly, about why the applicant had not contacted his family in the three years before lodging his SHEV application”.

29    Later in his reasons for judgment, his Honour (at [12]) expressed his general understanding of the meaning and effect of s 473DD of the Act in relation to the reception of new information in this way:

Section 473DD, first, has a threshold that the applicant must satisfy the decision-maker that there were exceptional circumstances justifying consideration of new information. If that is established, then the two limbs of subparagraph (b) fall to be considered.

30    Having abandoned appeal ground 3, the appellant no longer challenged this summation of the effect of s 473DD. Nonetheless, in describing ground 4, the appellant stated that it was “essentially a complaint that the primary judge erred in not finding that the Authority misconstrued or misapplied the test in s 473DD(a)”. That description, and certainly the way in which it was then developed, moved the challenge rather beyond just whether interpretation difficulties had to be considered in the context of s 473DD(a).

31    The appellant developed this challenge by reference to the submission made to the Authority as to the reason why none of the new information annexed to that submission had not been disclosed by the appellant earlier. The reason put forward in the submission was the appellant did not know of it until a phone call with his brother Y on 13 April 2017. It was submitted that the Authority’s reasons focused on why the various items of new information itself “could not” have been (obtained and) provided earlier instead of considering the reason put forward by him. This was then said to be a similar jurisdictional error to that found in Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111 at [110] - [112] (BBS16).

32    The appellant then submitted that it was evident from its reasons that the Authority did not consider, as relevant to whether there were exceptional circumstances for considering the new information:

(a)    the difficulty with the translation at the interview as a possible exceptional circumstance which was raised by the appellant's statement; and

(b)    the fact that translations of the documents in the Kurdish language annexed to the submission were not in existence until after the delegate’s decision.

33    It was then submitted to follow from the fact that the Authority failed to discuss these circumstances that an inference should be drawn that, in consideration of the “exceptional circumstances” test in s 473DD(a), the Authority unduly constrained itself to the circumstances relevant to the alternate limbs of s 473DD(b).

34    The way in which ground 4 was developed and, in particular, the reason asserted by the appellant as to why he had not known earlier of the new information, makes it desirable to set out from the Authority’s reasons (at [9] to [12]) how it dealt with the subject of contact between the appellant and his family after he had arrived in Australia:

Contact with his family

9.    New evidence was provided in the statutory declaration and in [M’s] statement as to why the [appellant] had not been in contact with his family.

10.    The question of the [appellant’s] contact with his family was not a new issue, rather it was raised in the [appellant’s] written statement accompanying the SHEV application and it was extensively discussed at the SHEV interview, during which time the delegate identified concerns about the plausibility of this claim. The [appellant] gave evidence during that interview as to why he had not been in touch with his family, which as discussed further below, was different to the information in the statutory declaration. He had the opportunity at that time to provide the new information and did not do so. I also note that there was over a month between the SHEV interview and the decision and the [appellant] did not raise this new information at that time. Similarly, in respect of M’s statement, noting that the [appellant] was aware there were questions about the plausibility of his claims, there was no contention of animosity between the [appellant] and his family, and absent any other suggestion that the [appellant] was otherwise unable to contact his family, it is not clear why the [appellant] could not have provided [M’s] statement prior to the making of the decision.

11.    I also note that content of the statutory declaration and [M’s] statements are inconsistent, not only with each other, but also with evidence provided by the [appellant] during his SHEV interview. At the SHEV interview, the [appellant] stated that he had not been in contact with his family in the three years preceding the SHEV application because: he had no need to contact them as they knew he was safe; it was costly; and they were busy. In contrast, he claims in the statutory declaration that he ceased contact with his family in September 2013 because they were not forthcoming about what was going on with them at home, he became frustrated and decided there was no point maintaining contact with them. [M’s] statement was that the family chose to stop calling the [appellant] because he was having a hard time and they did not want him to know what had happened to them. I consider that each of these accounts is different and that they are not an elaboration of evidence given by the [appellant] in the SHEV application, which calls into the question the credibility of this information. In this context, this new information would has little evidentiary value in assessing the [appellant’s] protection claims.

12.    Overall, the [appellant] has not satisfied me that the new information could not have been provided to the delegate before the decision was made and nor am I satisfied that it is credible personal information that was not previously known, and had it been known may have affected consideration of the [appellant’s] claims. On the totality of the evidence before me, including all of the matters discussed above, I am also not satisfied that there are exceptional circumstances to justify considering this new information. I must not consider these aspects of the statutory declaration or [M’s] statement in its entirety.

35    The similarity of formulation by the Authority in paragraph 12 as to why it was obliged not to consider those parts of the appellant's statutory declaration dealing with contact with his family and his brother, M’s statement, with its formulation of why it was obliged not to consider the asserted errors of translation will be noted.

36    The Authority’s reasons also disclose a very thorough analysis of the information annexed to the submission concerning past harm stated to have been experienced by the appellant’s brothers, Y and M, at the hands of the Kurdistan Workers’ Party (PKK) on three separate occasions: 20 August 2013; 19 October 2016; and 20 December 2016. The Authority expressly noted the appellant's submission that it was only after his visa refusal that he made contact with his family and learned of these incidents. Overall, the Authority was sceptical about the appellant’s asserted period of no contact with his family as well as the credibility of the information itself. The Authority was not persuaded that the information could not have been obtained prior to the delegate’s decision. Based on its analysis, the Authority also found an absence of any exceptional circumstances with respect to this information.

37    Of Mr A’s statement, the Authority accurately summarised (at [19]) that it had these features:

    Mr A had been a successful businessman in [S];

    he had been attacked by the PKK; and

    he had fled to Turkey.

Using a like formulation to that related above, the Authority then concluded that it was obliged not to receive the information in Mr A’s statement for these reasons:

This document is undated and there is nothing before me to indicate why this could not have been provided to the delegate prior to the making of the decision. I note that it is not clear on the evidence provided how Mr [A]is connected or known to the [appellant]. In the statement accompanying the [appellant’s] SHEV application, it is claimed that a friend of the [appellant’s] father was shot at by unknown persons. However, this person is not named, and it is not clear from whether this is in fact Mr [A]. I also note that Mr [A’s] statement does not indicate the nature of the claimed attack or state when, or where, it was alleged to have occurred. The document does not provide personal information about the [appellant], and it is not clear on what basis this is relevant to assessing the [appellant’s] claims for protection.

38    In his reasons for judgment and after noting that the appellant had not pressed the ground based on translation errors at the interview, the learned primary judge stated (at [12]):

To the extent that the [Authority] failed to consider new information relating to the [appellant’s] contact with his family, at paragraph [10] and [11] of its reasons, the [Authority] found that the issue of the [appellant’s] contact with his family was not a new issue, but rather that it had been raised in the [appellant’s] written statement accompanying the SHEV application.

His Honour then noted (at [13]) that the subject of contact between the appellant and his family, “was also extensively discussed at the SHEV interview during which time the delegate identified concerns about the plausibility of the claim”. This, I interpolate, is indeed true of that interview, having regard to the detailed summary in the delegate’s reasons. His Honour also highlighted the Authority’s noting of the facts that over a month had passed between the interview and the delegate's decision, and that the appellant had not raised that new information at that time. Having so done, his Honour also noted, correctly as the excerpt from the Authority’s reasons discloses, that, “The same considerations applied to a statement said to be from the [appellant’s] brother called [M]”. His Honour added, again correctly, having regard to the Authority’s reasons, that the Authority had, “questioned the credibility of the information, finding that the new information would have little evidentiary value in assessing the applicant’s protection claims”.

39    The learned primary judge concluded (at [16]) that ground 2 of the grounds of review, insofar as pressed was really a solicitation, contrary to Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Wu Shan Liang), to review on the merits the Authority’s conclusions as to the reception of new information. His Honour further concluded (at [17]) that the Authority's decision-making process on this subject was “appropriate” and “not illogical”.

40    For his part, the Minister submitted that the conclusion reached by the primary judge was correct, because all that the Authority had done in relation to the information in the annexures to the submission was to make “findings having regard to the cumulative requirements of section 473DD” and “did not adopt an ‘inappropriately narrow understanding’ of the phrase ‘exceptional circumstances’”.

41    The general structure of the “fast track” scheme found in the Act for review of decisions such as that made by the Minister’s delegate in respect of a person such as the appellant (a “referred applicant”) was described by Gageler, Keane and Nettle JJ (with whose reasons Gordon and Edelman JJ agreed, adding, respectively, additional reasons) in Plaintiff M174/ 2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217, at [6] to [18] (M174). The conduct of that review, as their Honours noted at [20], is governed by Div 3 of Pt 7AA of the Act. Their Honours then observed, at [22]:

Within Div 3, s 473DB sets out the primary requirement that, subject to the Part, the Authority is to review a fast track reviewable decision referred to it under s 473CA by considering the review material provided to the Authority under s 473CB without accepting or requesting new information and without interviewing the referred applicant. To that primary rule, subdiv C of Div 3 admits of exceptions. The principal provisions of subdiv C providing for those exceptions are contained in ss 473DC, 473DD and 473DE.

42    It is with s 473DD of the Act that ground 4 and the other remaining grounds of appeal are concerned. For that reason, it is necessary to detail the observations made in the joint judgment in M174 in relation to that section.

43    Gageler, Keane and Nettle JJ observed, at [28], of s 473DD, that it “imposes restrictions on when the Authority can consider new information”, the section providing:

For the purposes of making a decision in relation to a fast track reviewable decision, [the 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.

44    Paragraph (a) of s 473DD, their Honours stated, at [29], was a precondition which “must always be met before the Authority can consider any new information”. That statement, surely, is consistent with the above-quoted observation of the primary judge that s 473DD “first, has a threshold”. As to the phrase “exceptional circumstances” in s 473DD(a) of the Act, Gageler, Keane and Nettle JJ stated, at [30]:

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”.

[Footnote references omitted]

45    Having regard to what is stated in M174 as to the open-ended embrace of the phrase “exceptional circumstances” and the seminal discussion by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 as to what will constitute a “relevant consideration” for jurisdictional error purposes, neither “the difficulty with the translation at the SHEV interview as a possible exceptional circumstance which was raised by the appellant’s statement” nor “the fact that translations of the documents in the Kurdish language annexed to the submission were not in existence until after the delegate’s decision” was a “relevant consideration” for the purposes of s 473DD(a) of the Act. That is not to say that the Authority could not have taken either or each of these considerations into account, only that it was not obliged so to do. All that was put (at [6]) by the appellant’s solicitor in the submission of 31 May 2017 that covered the annexures as to why the Authority should take the new information they contained into account was “they were not before the delegate and could not have been provided before the delegate's decision was made”. As formulated, ground 4 is indeed an impermissible solicitation to conduct merits review, which was rightly characterised as such and rebuffed by the learned primary judge.

46    As to the submission based on the Full Court's judgment in BBS16, it must first be said that the judgment in that case predates M174. It must therefore be read subject to what is stated in M174. However, the Full Court’s discussion in BBS16 of s 473DD(b) is cited with express approval by Gageler, Keane and Nettle JJ, in M174, at [33], fn 35. Moreover, the Full Court’s conclusion in BBS16, at [111], that the Authority’s “conclusion that it was not satisfied that there were exceptional circumstances to justify considering this new information”, “based on the [the Authority’s] finding that the first respondent had not provided any explanation as to why the information could not have been provided earlier”, evinced a misunderstanding of the meaning of s 473DD(a) is completely congruent with the observations in the joint judgment in M174 as to the breadth of meaning of “exceptional circumstances”.

47    The appellant’s allegation of over-narrowness in approach to s 473DD(a) by the Authority has given me much pause for thought. However, in the end I have concluded that its difficulty lies not in a continued acceptance of the conclusion by the Full Court in BBS16 that “exceptional circumstances” could embrace information which could have been provided earlier but in demonstrating that there is an analogous deficiency in the Authority’s reasons, read fairly in light of what was stated in Wu Shan Liang.

48    True it is that the formulation adopted by the Authority inverts the order of s 473DD, adverting to the s 473DD(a) “exceptional circumstances” criterion last rather than first. That is not, with respect, good practice. It certainly could in particular circumstances be conducive to error of the kind found in BBS16. However, I remind myself that the reasons of an administrative body such as the Authority are not to be read narrowly and with an eye for error. Further, they should not be read out of the context of the administrative decision-making continuum (Jebb v Repatriation Commission (1988) 80 ALR 329 at 333) of which they form part. As with the tribunal review considered in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152, at [40], “the Act assumes that issues can be identified as arising in relation to the decision under review”. Thus, the earlier course of the administrative decision-making continuum up to the time when the Authority comes to make its decision will colour and shape the issues on a particular review.

49    The Authority did not, in terms, hold that a conclusion that information could have been provided earlier precluded satisfaction that there existed “exceptional circumstances”. Such is the breadth of that phrase, it was not irrelevant also to take such a consideration into account in relation to s 473DD(a). Further, it was the appellant himself, by his solicitor in the covering submission of 31 May 2017, who, under the general rubric of s 473DC and s 473DD, and apart from relevance, raised as the only other reason why the new information in the annexures should be received by the Authority, was that “they were not before the delegate and could not have been provided before the delegate’s decision was made”. It is hardly surprising therefore that the Authority considered this subject both in the context of s 473DD(b) and s 473DD(a). That is what the appellant, in effect, invited the Authority to do. Reading the Authority's reasons fairly and as a whole, this circumstance was taken into account but that was part of a staged, multi-factorial analysis of the new information. It is just that, at the end of that analysis, the Authority was, with respect to the new information, left in the position of not being satisfied that there existed “exceptional circumstances”. I therefore reject ground 4.

50    Adhering to the structure of s 473DD, it is convenient next to consider ground 2.

Ground 2 - Alleged misconstruction or misapplication of s 473DD(b)(i)

51    An overarching difficulty which attends ground 2 and, for that matter, ground 1 is that, if, as I have concluded, the learned primary judge made no error in concluding that the Authority’s approach to s 473DD(a) was not affected by jurisdictional error, any error made by the Authority in relation to s 477DD(b) could not be material in the sense discussed in Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123. That is because, as Kiefel CJ, Gageler and Keane JJ put it, at [31], in concluding their discussion of jurisdictional error in that case, “Ordinarily, … breach of a condition cannot be material unless compliance with the condition could have resulted in the making of a different decision”. Because the precondition set out in s 473DD(a) must always be met before the Authority can consider any new information, if the Authority concludes, without legal error, that the s 473DD(a) precondition is not met, any legal error in its consideration of whether one or the other of the conditions in s 473DD(b) is met cannot be material, as compliance with the requirements of that paragraph necessarily could not result in the making of a different decision. The error would not, for this reason, be jurisdictional.

52    Consideration of this ground first requires that the definition of “new information” in s 473DC of the Act be set out. It provides:

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

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

   (b)    the Authority considers may be relevant.

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

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

  (a)    in writing; or

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

53    The appellant’s submissions proceeded from this observation made by Gageler, Keane and Nettle JJ in M174, at [24], about “new information” as defined in ss 473DC, 473DD and 473DE of the Act:

The term “new information” must be read consistently when used in ss 473DC, 473DD and 473DE as limited to “information” (which may or may not be recorded in a document), in the ordinary sense of a communication of knowledge about some particular fact, subject or event, that meets the two conditions set out in s 473DC(1)(a) and (b). The first is that the information was not before the Minister or delegate at the time of making the decision to refuse to grant the protection visa. The second is that the Authority considers that the information may be relevant.

[Footnote reference omitted]

54    It was then put that:

… ‘new information’ is therefore a communication of knowledge about some fact, subject or event. It is not the fact, subject or event of itself which is new information, but a communication of some knowledge about the fact, subject or event. Obviously, there can be no communication about a fact, subject or event without knowledge of it.

[Emphasis by appellant in submissions]

55    The next step in the appellant’s submission was that both the Authority and, in dismissing the judicial review application, the primary judge, had reasoned that:

… because the fact, subject or events about which the communications conveyed knowledge occurred before the date of the delegate’s decision, it followed (or was open to be concluded for the purposes of s 473DD(2)(b)(i)) that it could not be the case that the new information ‘could not have been’ provided before the delegate made the decision.

56    The answer to this submission is also to be found in fealty to the High Court’s observations in Wu Shan Liang in relation to the reasons of an administrator. Reading the Authority’s reasons as a whole, and, as I have already observed, the Authority’s approach in relation to the new information in the annexures to the submission of 31 May 2017 was multi-factorial.

57    As the Minister correctly observed in submissions, the Authority did consider that the new information in the annexures would have been available to the appellant to obtain prior to the making of the delegate’s decision but it did not stop its consideration there. The Authority also examined, in detail, the explanation given by the appellant as to why he had not been aware of this information until after the delegate’s decision. It is plain from the Authority’s reasons that it was sceptical about this explanation. Even so, the Authority then reasoned that there was no suggestion of animosity between the appellant and the members of his family, no suggestion that the appellant was unable to contact them, that over a month had passed between the interview and the making of the delegate’s decision; and that the appellant had never informed the Department that he was seeking to obtain more information. The Authority further reasoned, having regard to the course of events up to and including the circumstances of the interview (where the subject of contact with the appellant’s family was, as the Authority noted, “extensively discussed”), that the appellant must have been aware of the relevance of supporting the basis of his visa claim with further information.

58    It was all of this which informed the Authority’s absence of satisfaction for the purposes of s 473DD(b)(i). In determining whether it was satisfied as required by that provision, the Authority did not just look to whether the information predated the delegate’s decision but also why it had not been earlier communicated. As the learned primary judge pithily (at [17]) put it, the Authority’s reasoning was “appropriate” and “not illogical”.

59    It is to be remembered that the touchstone in s 473DD for consideration of new information is entirely satisfaction based. The purpose of a provision so based and its ramifications in relation to the judicial review of a decision so based are no new subjects. Section 473DD exemplifies a type of provision which, as Isaacs and Rich JJ pointed out in Bankstown Municipal Council v Fripp (1919) 26 CLR 385 at 403, has as its object the prevention of litigation on questions of jurisdictional fact by the introduction into the jurisdictional fact criterion of elements of opinion, belief or satisfaction by the decision-maker. Administrative decisions entailing the making of a satisfaction based decision are not unexaminable on judicial review but the ramifications for that review were long ago expressed by Latham CJ in R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 at 430:

[W]here the existence of a particular opinion is made a condition of the exercise of power, legislation conferring the power is treated as referring to an opinion which is such that it can be formed by a reasonable man who correctly understands the meaning of the law under which he acts. If it is shown that the opinion actually formed is not an opinion of this character, then the necessary opinion does not exist.

To this, Latham CJ added, at 432:

It should be [emphasised] that the application of the principle now under discussion does not mean that the court substitutes its opinion for the opinion of the person or authority in question. What the court does do is to inquire whether the opinion required by the relevant legislative provision has really been formed. If the opinion which was in fact formed was reached by taking into account irrelevant considerations or by otherwise misconstruing the terms of the relevant legislation, then it must be held that the opinion required has not been formed. In that event the basis for the exercise of power is absent, just as if it were shown that the opinion was arbitrary, capricious, irrational, or not bona fide.

Like sentiments to those voiced by Latham CJ in this latter passage were notably later expressed by Dixon J in another root authority, Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353, at 360. All of the considerations expressed by Latham CJ lie behind my approval of the learned primary judge’s description of the reasoning of the Authority as “appropriate” and “not illogical”. In so regarding the Authority’s decision in relation to the proffered new information, his Honour correctly recognised the limits of judicial review in relation to a satisfaction based criterion.

60    The appellant also submitted that, in any event, the translations from Kurdish into English of annexed documents were created after the delegate’s decision and, as I understood it, that this was a relevant consideration not taken into account by the Authority. The answer to that aspect of the appellant’s submissions is, as the Minister submitted, supplied by observations made by Bromwich J in ABJ17 v Minister for Immigration and Border Protection (2018) 260 FCR 295 (ABJ17), at [23]:

The focus must therefore be on the substance, and not the form, of what was before the delegate. A faithful translation of a document that was before the delegate, no differently to an improved copy of a document that was otherwise difficult to read, does not engage the concept of being “new” in the sense which the phrase “documents or information (new information)” conveys. The requirement is that the document, in the sense of the information it conveys, or the information itself, be new, and not that its capacity to be comprehended or understood is new. In this case, the information in the original summons was before the delegate, but in Farsi. Had the delegate, by chance, been able to read Farsi, no translation would have been necessary. Had the delegate decided to use a Farsi-English dictionary, no translation would have been necessary, although such process may not have been very reliable or accurate. The provision of the English translation achieves the same practical purpose, but to a higher standard that is more likely to accord with the original in terms of the information conveyed and able to be comprehended. A change in comprehension is not a change in the information to which that comprehension applies.

61    I should follow the views expressed by Bromwich J in ABJ17 unless persuaded that they are clearly wrong. I am not so persuaded. The Authority was not satisfied that the information in the annexed documents could not have been provided before the delegate’s decision was made. Some of those documents were in Kurdish. However, as Bromwich J observed in the passage quoted, “The provision of the English translation achieves the same practical purpose, but to a higher standard that is more likely to accord with the original in terms of the information conveyed and able to be comprehended. A change in comprehension is not a change in the information to which that comprehension applies”.

62    It follows that, however put, ground 2 must be dismissed. Again in keeping with the sequence in s 473DD, I now turn to ground 1.

Ground 1 – Alleged misconstruction or misapplication of s 473DD(b)(ii)

63    I have already highlighted, in considering ground 2, an overarching difficulty for the appellant flowing from the dismissal of ground 4.

64    The appellant’s submissions in relation to ground 1 had as their foundation the following statement made by the Full Court in Minister for Immigration and Border Protection v CLV16 (2018) 260 FCR 482, at [17], about s 473DD(b), in which the Full Court in turn referred with approval to observations made by Bromberg J in CSR16 v Minister for Immigration and Border Protection [2018] FCA 474:

The two limbs of s 473DD(b) are expressed as alternatives: CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 at [37]. Justice Bromberg there went on to conclude that “all that the ‘credible’ element of s 473DD(b)(ii) criteria requires is the Authority’s satisfaction that the ‘new information’ is information which is open to be or capable of being accepted by the Authority as truthful (or accurate, or genuine)”: [2018] FCA 474 at [41]. “It is only at the deliberative stage of its review”, said his Honour, “that the Authority will be required to determine whether or not the ‘new information’ is true”. The criteria, it was said, is a “filtering mechanism”: [2018] FCA 474 at [42].

65    The appellant submitted that the Authority had either misconstrued or misapplied s 473DD(b)(ii) of the Act by imposing a requirement that the annexed new information be true, as opposed to capable of being accepted as true at a later, deliberative stage. Thus, in relation to the annexed police and hospital reports, it was submitted that the Authority had referred to inconsistencies but had not questioned their apparent authenticity. It was submitted that the Authority’s consideration of these documents did not entail any finding that the reports were incapable of being accepted as truthful, accurate or genuine.

66    The Minister submitted that the Authority had not made any findings about whether any of the appellant’s “new information” was true. He further submitted, without detailed elaboration, that the Authority’s findings with respect to s 473DD(b)(ii) of the Act were open to it. The latter submission took up the general statement made by the learned primary judge (at [17]), already referred to, that the Authority’s decision-making was “appropriate” and “not illogical”.

67    I agree that the Authority did not make any finding in respect of any of the annexed new information that it was not true. In that sense, there was no violation of the s 473DD(b)(ii) criteria.

68    However, that does not completely answer the challenge made by the appellant. What is more troubling is whether the Authority made a finding that some or all of the information was at least, and as s 473DD(b)(ii) envisages, credible.

69    Subparagraph 473DD(b)(ii) of the Act contains constituent elements to which the Authority must advert in terms of its satisfaction concerning the new information under its consideration. These were summarised in this way by Gageler, Keane and Nettle JJ in M174, at [34]:

… [All] that the Authority needs to be satisfied of in order to meet the precondition to its consideration of new information given, or proposed to be given, by the referred applicant set out in s 473DD(b)(ii) is that:

(1)    the information is credible information about an identified individual, or an individual who is reasonably identifiable;

(2)    the information was not previously known by either the Minister or the referred applicant; and

(3)    had the information been known by either the Minister or the referred applicant, the information may have affected the consideration of the referred applicant’s claims.

70    The first of these identified elements at least requires satisfaction that the proffered new information is or is not credible. Yet, using as an example the excerpt, quo ted above, from the Authority’s discussion of the appellant’s “contact with his family”, what the Authority did (at [11]) was to state, in respect of the appellant’s and M’s statements:

I consider that each of these accounts is different and that they are not an elaboration of evidence given by the [appellant] in the SHEV application, which calls into the question the credibility of this information.

[Emphasis added]

To “call into question” credibility is one thing; to find an absence of credibility or, put another way, incapability of acceptance, is quite another. What follows in the Authority’s reasons is, as I have already noted, a formulation which is repeated in respect of other information:

Overall, the [appellant] has not satisfied me that the new information could not have been provided to the delegate before the decision was made and nor am I satisfied that it is credible personal information that was not previously known, and had it been known may have affected consideration of the [appellant’s] claims.

[Emphasis added]

71    In the context of s 473DD(b)(ii), the words emphasised are not just formulaic. The use of the singular, inanimate noun, “it” in such a generic way entails no discrete assessment at all of the credibility of the multiple items of new information from different sources which were annexed to the appellant’s solicitor’s letter of 31 May 2017. Giving every deference to Wu Shan Liang, the conclusion to which I am driven about the Authority’s reasons, exemplified by the foregoing analysis of the “contact with his family” section, is that the Authority did not, as it ought to have under s 473DD(b)(ii), reach conclusions as to its satisfaction in relation to the credibility of the new information. It went part way down that path in its “calls into the question” finding but stopped short of a conclusion.

72    For these reasons, I conclude that the Authority did not comply with s 473DD(b)(ii) of the Act. Ground 1 should therefore be upheld.

Ground 5

73    Appeal ground 5 was, as the appellant correctly acknowledged in submissions, really a “conclusion to be drawn from grounds 1, 2, and 4”. The difficulty for the appellant, and it is fatal to the outcome of his appeal, is the absence of any legal error by the Authority in relation to an absence of satisfaction as to “exceptional circumstances”, s 473DD(a).

74    For the reasons already given, upholding ground 1 does not mean that the appeal must be allowed. That is because the Authority’s s 473DD(b)(ii) error was not jurisdictional. I therefore dismiss the appeal.

Associate:    

Dated:    3 April 2020