FEDERAL COURT OF AUSTRALIA

ALJ18 v Minister for Home Affairs [2020] FCA 491

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

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

3.    On or before 4 pm on 20 May 2020, the parties file any agreed proposed minute of orders fixing a lump sum in relation to the first respondent’s costs.

4.    In the absence of any agreement having been reached, the matter of an appropriate lump sum figure for the first respondent’s costs be referred to a Registrar for determination.

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

REASONS FOR JUDGMENT

MORTIMER J:

Introduction and summary

1    This is an appeal from orders made by the Federal Circuit Court on 21 December 2018, dismissing the appellant’s application for judicial review of a decision of the Immigration Assessment Authority and ordering the appellant to pay the first respondent’s costs in the amount of $5,000.00: see ALJ18 v Minister for Immigration and Border Protection [2018] FCCA 3835.

2    For the reasons set out below, the appeal will be dismissed.

Relevant background

3    The appellant is a citizen of Afghanistan and is of Shia Hazara ethnicity. The appellant arrived in Australia as an unauthorised maritime arrival on 1 May 2013 and was interviewed by a delegate on 8 July 2013.

4    There is then a gap of several years in the chronology, which is unexplained by the evidence. On 31 May 2016, the appellant was informed that the s 46A “bar” preventing him from applying for a visa had been lifted, and he was invited to apply for a Temporary Protection (subclass 785) visa (TPV) or a Safe Haven Enterprise (subclass 760) visa (SHEV). He subsequently submitted an application for a TPV under cover of a letter dated 12 September 2016.

5    The appellant attended an interview with a delegate of the Minister on 27 January 2017; however, under cover of a letter dated 1 February 2017 but clearly sent some time after that, he advised the Minister that he wished to withdraw his application for a TPV and replace it with an application for a SHEV. The appellant enclosed his SHEV application with this letter.

6    The appellant set out his claims in a statutory declaration dated 2 February 2017, which was forwarded with the letter dated 1 February 2017.

7    He stated that he feared returning to Afghanistan because he believed that, if he returned, he would “suffer persecution, due to [his] Hazara ethnicity, [his] religious belief as a Shi’a Muslim and [his] imputed political views as someone opposed to the Taliban”.

8    He stated that, in 2013, while working as a taxi driver, he was stopped by three armed men from the Taliban who beat him and took his passenger. The next day he received a death threat from the passenger’s family, who accused him of being an informant. He found out that the passenger was himself a member of the Taliban who was caught up in “an internal conflict within the group”.

9    He also stated that he feared “getting killed by the Taliban if … sent back to Afghanistan for seeking protection in a western country and adopting … a foreign culture”.

10    On 31 March 2017, the Minister’s delegate informed the appellant that his application for a visa had been refused because she was not satisfied that the appellant was a person in respect of whom Australia has protection obligations. It is not necessary to consider the delegate’s reasons for the purposes of this appeal.

Immigration Assessment Authority

11    On 4 April 2017, in accordance with s 473CA of the Migration Act 1958 (Cth), the delegate’s decision was referred to the Immigration Assessment Authority. On 1 May 2017, the appellant’s migration agent made submission to the Authority on behalf of the appellant. Those submissions included, relevantly, the following passages, which were referred to as “significantly relevant facts that were not referred to by the delegate in the decision”:

The incident of 2013 when the Applicant car was stopped at a roadblock and sustained injuries was not the only time that the Applicant suffered injuries in the hands of the Taliban. In 2009, the Taliban stopped the Applicant car when he was transporting livestocks for his butcher shop at the [redacted] market. The Taliban confiscated all his livestock worth over 100,000 Afghani (equivalent of $2000), severely beat him and left him on the roadside to die. He was warned not to carry on a business at the market …

In May 2013, the Taliban killed the Applicant’s brother-in-law after stopping his car at a roadblock. He was driving his newly bought passenger car working between Kandahar and [redacted]. His car was stopped at the area of [redacted] and the Taliban killed him and his assistant driver (both Hazara). The Applicant was at Christmas Island when received the news. The Applicant strongly believes that he could have had the same fate as his brother-in-law if he did not fled Afghanistan.

12    On 17 January 2018, the Authority affirmed the decision of the delegate of the Minister not to grant a protection visa. The Authority considered the appellant’s claims that he was beaten and robbed by the Taliban in 2009, and that his brother-in-law was killed by the Taliban in 2013, were new information for the purposes of s 473DD of the Migration Act. That section provides:

For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

(a)    the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

(b)    the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

(i)    was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

(ii)    is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.

13    The Authority dealt with the claims at [4]-[7] of its reasons:

Each of these new claims predates the delegate’s decision by a considerable period. He was advised about the importance of raising full and complete claims, and it was well within the applicant’s control to raise these claims in his earlier written and oral evidence. He was assisted in the preparation of his visa application by his representative, and was given opportunities to raise his claims during the visa interview. In that context, I consider the failure to put forward these claims at an earlier point raises questions as to whether they are credible.

In terms of his claim that he was beaten, the applicant advanced specific claims about the incident involving the Taliban in 2013. In that context, his failure to raise claims relating to other issues he had with the Taliban, including a claim that he was beaten and left for dead in 2009, is concerning. I note that this claim was not raised in the arrival interview, the visa application or the visa interview before the delegate.

In terms of the claim that his brother-in-law was killed by the Taliban in May 2013, I note the applicant was specifically asked about his sisters in the interview. He confirmed they lived in [redacted], and that their husbands lived in Iran. He confirmed his wife has two brothers and three sisters. He stated that one of the brothers was in [redacted], and the other was in Iran. He did not advance a claim that his brother-in-law was murdered by the Taliban in 2013.

In the circumstances, I am not satisfied these claims are credible personal information, and given his failure to raise these claims at an earlier point in this application, I am not satisfied there are exceptional circumstances that justify the IAA considering the new information and claims.

14    The Authority otherwise found that the appellant had not met the criteria for a protection visa.

Federal Circuit Court

15    The appellant applied for judicial review of the Authority’s decision on 31 January 2018. He was legally represented. By his amended application, the appellant advanced one ground of review:

The Immigration Assessment Authority erred in its task under s.473DD of the Migration Act 1958 (Cth) by misapplying the requirement that any ‘new information’ be ‘credible personal information’ in s.473DD(b)(ii) of the Act.

16    The Federal Circuit Court made orders dismissing the judicial review application on 21 December 2018. As can be seen from [21] of the Federal Circuit Court’s reasons, before that court, so far as is relevant to the construction of s 473DD(b)(ii), the appellant put forward two arguments.

17    The first argument relied on this Court’s decision in CSR16 v Minister for Immigration and Border Protection [2018] FCA 474. The appellant contended that, contrary to CSR16, in deciding that the new information was not credible personal information, the Authority “was in substance concerned with assessing whether the claims were in fact truthful”: Federal Circuit Court reasons at [21(g)(i)].

18    The second argument engaged with the Authority’s reasons for finding that the new information was not credible personal information. The appellant contended the Authority had found that the new information was not credible personal information “on account of [the information] not having been raised earlier”: Federal Circuit Court reasons at [21(g)(ii)]. The appellant stated that this effectively treated s 473DD(b)(ii) as equivalent to s 473DD(b)(i), an improper construction because it denied at least one of ss 473DD(b)(i) and (ii) any utility.

19    The Federal Circuit Court found that, on a proper reading of the Authority’s reasons, the Authority had not made the error identified in CSR16. The Federal Circuit Court noted that “[t]he question of whether information is credible is an evaluative judgment for the [Authority] to make”: at [30]. The Federal Circuit Court found that it was open to the Authority to find, for the reasons it gave, that the new information was not credible personal information.

20    With respect to the second argument, the Federal Circuit Court found the Authority had not treated ss 473DD(b)(i) and (ii) as if they were equivalent. The Federal Circuit Court held the Authority’s finding that the new information was not credible personal information had not turned on the appellant’s ability to provide the information earlier by itself; “[r]ather, it turned on the credibility finding it had made in relation to the factual context it had before it by reference to the ‘review material’”: at [34].

The ground of appeal and the parties’ arguments

21    The appellant filed a notice of appeal on 24 January 2019. The delay in this Court is explained by the fact that the final hearing in this matter was adjourned by consent pending the outcome of BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; 93 ALJR 1091. As it has turned out, the resolution of this appeal does not turn on the issues raised and determined in BVD17.

22    Before this Court, the appellant relied on the same ground of appeal that he relied on before the Federal Circuit Court. However, in this Court he was unrepresented. He filed some written material in support of his appeal. That material can be described as going to the reasons why he should be granted a visa, rather than to the issues on the appeal. That is no criticism of the appellant; he put what he thought might be relevant before the Court. I explained to him at the hearing why it was not relevant.

23    The Minister submitted that the Authority had not misconstrued s 473DD. The Minister submitted that CSR16 could be distinguished because the Authority did not use the kind of conclusive language used in CSR16 in finding that the new information was not credible personal information. The Minister submitted that it was open to the Authority to have regard to any failure to bring forward new information at an earlier point in time in considering whether the information was credible personal information, particularly in circumstances where the appellant received assistance in preparing his visa application and was advised of the importance of raising full and complete claims. Alternatively, the Minister submitted that, if an error was made, it was not material, because:

(a)    the Authority had not been satisfied there were exceptional circumstances to justify it considering the information;

(b)    the requirements that there be exceptional circumstances and that the information be credible personal information are cumulative; and

(c)    the appellant had not sought to challenge the Federal Circuit Court’s finding that the Authority had not erred in failing to be satisfied that there were exceptional circumstances.

24    As I have said, the Minister submitted that CSR16 could be distinguished. Before I consider the ground of appeal, something more should be said about this, because, although the Minister submitted that CSR16 could be distinguished, he contended in his written and oral submissions that CSR16 was wrongly decided. Counsel for the Minister informed the Court that the Minister has challenged, and continues to challenge, the correctness of CSR16 in other proceedings in this Court.

25    Counsel accepted that the Minister did not seek special leave to appeal from the decision in CSR16. Yet it is apparent from a list provided to the Court after the hearing in this matter that the Minister has sought to impugn the correctness of CSR16 on six occasions. Of those, in five cases (DLB17 v Minister for Home Affairs [2018] FCAFC 230; BNV18 v Minister for Home Affairs (No 2) [2019] FCA 378; EPT17 v Minister for Home Affairs [2019] FCA 570; EDS16 v Minister for Immigration and Border Protection [2019] FCA 1618; BDY18 v Minister for Immigration and Border Protection [2020] FCAFC 24) the Court found it unnecessary to determine the Minister’s challenge to the correctness of CSR16. One matter (Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 (Federal Court of Australia, WAD20/2020, commenced on 7 February 2020)) has yet to be heard.

26    CSR16 was cited with apparent approval by the Full Court in Minister for Immigration and Border Protection v CLV16 [2018] FCAFC 80; 260 FCR 482 at [17]. CSR16 is a considered decision of a judge of this Court exercising appellate jurisdiction and I proceed on the basis it represents the law. As I said recently in Alfred v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 457 at [22]:

Comity serves institutional purposes, “uphold[ing] the authority of the courts and confidence in the law by the value it places upon consistency in judicial decision-making and mutual respect between judges”: see Hicks v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 757 at [74]-[76] (affd [2004] FCAFC 114; 138 FCR 475), cited with approval in Batterham v QSR Limited [2006] HCA 23; 225 CLR 237 at [73] and Frugtniet v Australian Securities and Investments Commission [2017] FCAFC 162; 255 FCR 96 at [93].

27    If a well-resourced and experienced litigant such as the Minister considers a decision of this Court is wrong, the appropriate course of action is to lodge an appeal, or seek leave to appeal. To take the course the Minister is deliberately pursing in relation to CSR16 tends to undermine the institutional purposes of which French J (as his Honour then was) spoke in Hicks v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 757, and it is certainly not appropriate conduct for a model litigant.

28    In a different but not unrelated context, Allsop J (as his Honour then was) emphasised the need for the executive branch to respect, and act in accordance with, the law as declared by the Court, subject to the exercise of legislative power by the Parliament to alter the law if the executive branch considers that is what should occur: see Federal Commissioner of Taxation v Indooroopilly Children Services (Qld) Pty Ltd [2007] FCAFC 16; 158 FCR 325 at [3]-[6].

29    In addition to the institutional purposes to which French J referred in Hicks, I also consider that, with respect, the reasoning in CSR16 about s 473DD is correct, and I adopt the same approach to the construction of s 473DD(b)(ii) as that set out by Bromberg J in CSR16.

Resolution

30    There is no debate that the preconditions set out in s 473DD which are required to be satisfied before the Authority can consider “new information” are cumulative. However, there is a degree of overlap in them, and it is for that reason that if the Authority adopts too narrow an approach it may fall into error.

31    In BDY18, the Full Court expressed it this way at [23]-[26]:

So, the Authority must be satisfied that there are exceptional circumstances in all cases. In addition, where the visa applicant is the source of the information, the Authority must be satisfied of one of the other circumstances set out in s 473DD(b)(i) and (ii) before it can consider new information.

As to what is meant by exceptional circumstances, in Plaintiff M174/2016, Gageler, Keane and Nettle JJ said 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’.

Whether a particular instance is exceptional requires a contextual evaluation by reference to all the circumstances of the case. The requisite state of satisfaction as to whether there are exceptional circumstances cannot be formed by focussing upon a particular aspect to the exclusion of other matters. Section 473DD(a) requires all the circumstances to be evaluated together to determine whether they are exceptional. The phrase ‘exceptional circumstances’ is to be given a broad meaning and matters that form part of those circumstances may overlap with those referred to in s 473DD(b). As to these matters, see Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; (2017) 257 FCR 111 at [104] (Kenny, Tracey and Griffiths JJ); AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111 at [14] (McKerracher, Murphy and Davies JJ); Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110; (2018) 264 FCR 249 at [51] (McKerracher, Murphy and Davies JJ); and the analysis by Mortimer J in CVV16 v Minister for Home Affairs [2019] FCA 1890 at [23]-[27].

Section 473DD specifies two requirements, those in para (a) and those in para (b) (which itself has two alternatives). The two requirements in (a) and (b) are cumulative. If one is not met then the new information must not be considered. There is no need to go on and consider the other requirement: AUH17 v Minister for Immigration and Border Protection [2018] FCA 388 at [34]. However, because the considerations that are relevant to the two requirements may overlap, an error as to the formation of the state of satisfaction as to one may infect the other.

32    BDY18 was a case where the jurisdictional error was that the Authority, in applying s 473DD, had formed its state of satisfaction in a legally unreasonable way. That is not how the argument was put in this case to the Federal Circuit Court, nor how it is put in the notice of appeal. Nevertheless, the general approach set out by the Full Court is applicable.

33    The next point to note is that ss 473DD(b)(i) and (b)(ii) are expressed in the alternative. In other words, as the Full Court pointed out in BDY18, the Authority must always be satisfied there are exceptional circumstance to justify considering the new information. An applicant must also satisfy the Authority that either:

(a)    the new information was not, and could not have been, provided to the delegate prior to the delegate’s decision: para (b)(i); or

(b)    the new information is credible personal information which was not previously known and, had it been previously known, may have affected the consideration of the referred applicant’s claims: para (b)(ii).

34    Section 473DD(b)(ii) refers, as its text makes clear, to whether the information could have affected the delegate’s consideration of whether to grant or refuse a protection visa. The reference to “not previously known” in s 473DD(b)(ii) could be a reference to what was known, or not known, by the delegate or the applicant or both. The language could also be suggestive of a more objective and hypothetical test, without reference to the state of mind of either the delegate or an applicant. It is not necessary to determine this construction question for the purposes of resolving the issue in this appeal.

35    As Bromberg J explained in CSR16 at [42], the term “credible” is used in s 473DD(b)(ii) as “a filtering mechanism designed to separate information worthy of consideration at the deliberative stage from that which is not”. His Honour said at [41]:

In my view all that the “credible” element of the 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). It is only at the deliberative stage of its review that the Authority will be required to determine whether or not the “new information” is true. The s 473DD(b)(ii) criteria is concerned with an earlier or anterior stage of the review directed at whether “new information” should be received by the Authority so that it may be considered at the deliberative stage.

36    I respectfully agree. The same approach was taken by O’Bryan J in BOS17 v Minister for Immigration and Border Protection [2020] FCA 75 at [43], adopting Bromberg J’s approach in CSR16, and adding:

The word “credible” does not impose a requirement that the information be believed by the Authority or that it be judged by the Authority to be more likely than not true.

37    Finally, in terms of principle, it is important to recognise that the whole purpose of s 473DD is to deal with a circumstance that is an exception to the usual way in which the Authority is required to review a decision. The usual way is set out in s 473DB(1) – a review under Part 7AA is to be decided without accepting or requesting new information and without interviewing a visa applicant. Thus, the premise of s 473DD is that there is further “new” information that has not been disclosed to the delegate. The mere fact of non-disclosure is therefore not a sufficient basis for the rejection of new information, otherwise the purpose of the exception for which s 473DD provides would be frustrated. The objective of s 473DD is to take the non-disclosure as a starting point and then to require the Authority to engage in an evaluative exercise about whether there is, in accordance with the text of the provision, a sufficient justification to make an exception to the operation of s 473DB(1).

Application of the principles to [4]-[7] of the Authority’s reasons

38    It was not disputed by the Minister that the only part of the Authority’s reasons which was relevant to the ground of appeal (and the ground of review before the Federal Circuit Court) was [4]-[7], which I have extracted above. While it would usually be the case that the Authority’s reasons need to be considered as a whole, the application by the Authority of s 473DD was a discrete matter, dealt with only in these paragraphs. Of course, on the question of “materiality”, if that is reached, the whole of the Authority’s reasons will need to be considered, together with the entirety of the material placed before it.

39    At least on the material before the Court (there being no transcript of the delegate interview before the Court), the 2009 and 2013 incidents considered at [4]-[7] of the Authority’s reasons do not appear to have been raised by the appellant as part of his protection claims prior to the agent’s submission. I make this finding in a qualified way because the terms of the agent’s submissions to the Authority could be read as suggesting that the appellant had mentioned them before:

There are several significantly relevant facts that were not referred to by the delegate in the decision.

40    Nevertheless, the proceeding has always been conducted – including when the appellant was legally represented before the Federal Circuit Court – on the basis that the appellant had not, in fact, mentioned these matters in any of his written or oral statements prior to the Authority’s review. The doubts about this highlight one of the difficulties with an “on the papers” review: such uncertainties are less likely to be flushed out and resolved, one way or the other, where there is no interview.

41    On the s 473DD issue itself, one of the difficulties posed by the framing of the Authority’s reasons is that the Authority does not refer in terms to the separate components of s 473DD. Its reasons mix the considerations in each of ss 473DD(a), (b)(i) and (b)(ii).

42    However, it would appear that the structure of the reasons is as follows:

(a)    Paragraph [4] deals with matters going to s 473DD(b)(i) and (ii). The Authority appears to find the appellant has not satisfied it the information could not have been provided to the delegate. The last sentence in [4] confirms the Authority also considers the new information is not “credible personal information”, so that [4] encompasses some consideration by the Authority of both para (b)(i) and para (b)(ii).

(b)    Paragraph [5] deals with the 2009 incident with the Taliban. The terms of this paragraph suggest it forms part of the Authority’s assessment of s 473DD(b)(ii), and possibly also s 473DD(a).

(c)    Paragraph [6] deals with the killing of the appellant’s brother-in-law by the Taliban in May 2013. The terms of this paragraph again suggest it forms part of the Authority’s assessment of s 473DD(b)(ii), and possibly also s 473DD(a).

(d)    Paragraph [7] deals with the Authority’s conclusion on s 473DD(a) and (b)(ii).

43    I accept the Minister’s submission that the Authority did not err in the way identified by Bromberg J in CSR16. The language used by the Authority in [4] – that the failure to put forward the claims earlier “raises questions” whether they are credible – indicates the Authority did not consider it needed to make (and was not making) any finding whether or not the claims were true.

44    Similarly, if the second way in which the argument was put to the Federal Circuit Court is encompassed by the ground of appeal, I would also reject that argument, as the Federal Circuit Court did. In [5] and [6], the Authority did not treat the mere fact of non-disclosure as sufficient to find the precondition in s 473DD(b)(ii) was not met; nor did it treat paras (b)(i) and (b)(ii) as if they were to the same effect. Rather, although it did so briefly, the Authority explained both why it found that para (b)(i) was not met (in substance finding the appellant could and should have told the delegate about these matters) and also why it did not find the content of the appellant’s narrative of the two events to be capable of being accepted as true.

45    Further, and fatally to the appeal in my opinion, read fairly these passages explain why the Authority was not satisfied there were exceptional circumstances justifying it having regard to the new information. Its reasons are briefly expressed, but clear enough. It considered the appellant had had a reasonable opportunity to raise these two aspects of his narrative during the visa application process, particularly given he had the assistance of a migration agent. It found both incidents were obviously specific, and occurred a considerable time before his protection visa application in February 2017. It was open to the Authority to make the findings it did.

46    Since the satisfaction of the Authority on s 473DD(a) was a precondition which needed to be met cumulatively with either of ss 473DD(b)(i) or (ii), the fact the Authority was not satisfied about para (a), there being no separate challenge to the formation of its satisfaction about that precondition, means the ground of appeal must be rejected.

47    There is no appellable error in the conclusions reached by the Federal Circuit Court.

48    In those circumstances, it is unnecessary to say anything about the Minister’s materiality submissions.

49    The Minister’s supplementary submissions about CSR16 contended:

In circumstances where the Minister’s appeal in BTW17 is yet to be determined and it has been requested that the matter be listed before a Full Bench the Minister requests that, in the event her Honour is not satisfied that this matter is not distinguishable from CSR16, this matter be adjourned pending the outcome in BTW17.

50    As is now apparent, I have not accepted it is appropriate to adjourn this appeal pending BTW17. CSR16 forms part of the applicable law, and I have set out why as a matter of comity it should be applied, and further that in any event I consider it to be correct. The Minister chose not to seek special leave to appeal from the orders in CSR16. It is inappropriate to request the Court to depart from the usual course of its business to accommodate the Minister’s apparently ongoing objection to the statement of legal principle set out in that decision. As it turns out, I have not found the error identified in CSR16 to exist in the Authority’s decision in this case. Even if I had done so, I would not have adjourned this appeal.

51    The appeal must be dismissed. There is no basis for anything but the usual order as to costs.

Associate:

Dated:    20 April 2020