FEDERAL COURT OF AUSTRALIA

AGK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 668

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.

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

REASONS FOR JUDGMENT

ANDERSON J:

Introduction

1    The appellant, a citizen of Pakistan, appeals from a decision of the Federal Circuit Court of Australia (Circuit Court) dismissing the appellant’s application for judicial review of a decision of the Immigration Assessment Authority (Authority). The Authority affirmed a decision of a delegate of the Minister for Immigration and Border Protection refusing to grant the appellant a temporary protection visa (visa).

2    The appellant claims, in summary, that the Authority committed a jurisdictional error in the course of determining whether there were exceptional circumstances to justify the consideration of certain “new information” for the purposes of s 473DD(a) of the Migration Act 1958 (Cth) (Act). The relevant information was a copy of a purported decision of a local Jirga council in 2010, with an accompanying uncertified English translation. On its face, the Jirga decision records that the appellant faces a death sentence in Pakistan (or at least a part of Pakistan) in relation to engaging in pre-marital sex in the appellant’s youth.

3    The Authority held that no exceptional circumstances existed to justify considering the Jirga decision. In response, the appellant accepts that the Authority, in applying s 473DD(a), is not required in all cases to consider the matters expressly addressed in s 473DD(b), which includes, amongst other things, the credibility of the information. However, the appellant contends that, in the circumstances of the present case, the Authority erred by failing to have regard to the credibility and potential importance of the Jirga decision in assessing whether there were exceptional circumstances to justify considering that information.

4    For the reasons expressed below, my view is that the Authority did not commit the jurisdictional error alleged by the appellant. Although the Authority did not expressly state so, a fair reading of the Authority’s reasons, in light of the surrounding circumstances, reveals that the Authority did have regard to the credibility and potential importance of the Jirga decision. The Authority understood the purpose for which the appellant presented the new information, but the Authority doubted the credibility of the Jirga decision. This, in conjunction with factors, led to there being, in the Authority’s view, an absence of exceptional circumstances.

5    The appellant’s appeal to this Court is accordingly dismissed.

Background

6    The appellant was born in 1994. He is a Pakistani citizen from the Kurram Agency in the Federally Administered Tribal Areas of Pakistan. He arrived in Australia in October 2012. In July 2015, he made an application for the visa. He attended an interview with the delegate of the Minister for Immigration and Border Protection in September 2015.

7    Relevantly for the present case, the appellant claimed to have had a romantic and sexual relationship in Pakistan with a person whom he described as his “girlfriend”. (These reasons will continue to refer to this person as “the girlfriend”.) The appellant claimed that he was at risk of harm from her family because the girlfriend’s cousin had informed her family about him and his girlfriend having sex. The appellant also claimed to have been the subject of a decision by a “Jirga” (a local council involving tribal leaders) that he was to be punished by death in relation to his pre-marital relations.

8    On 29 September 2016, the delegate refused to grant the visa, and provided reasons for that decision (Delegate’s Reasons). The delegate found that the appellant had been in a relationship, but not one involving “pre-marital relations”: Delegate’s Reasons at [80] and [93]. The delegate did not accept that any Jirga decision had been made: ibid at [83] and [93]. In relation to the appellant’s alleged relationship with the girlfriend, the delegate’s decision record expressed the following:

Pre-marital relations

[76]    The applicant claims he was caught having sex with [the girlfriend] at school in Pakistan by [the girlfriend’s] cousin. The applicant fears that because [the girlfriend’s] cousin has informed [the girlfriend’s] family, the applicant and [the girlfriend] would be subject to tribal law punishment which means they will both face a public death penalty. The applicant also fears harm from [the girlfriend’s] family due to the shame and dishonour brought upon her family.

[77]    It was noted that the applicant’s claim of pre-marital sex was not made at his Arrival interview. The applicant claimed the omission was due to him being new in the detention camp, he was stressed and was ashamed. When put to the applicant that he may be fabricating the claim in order to be afforded protection, the applicant denied the assertion and re-iterated his earlier reasons of being stressed and feeling ashamed. The applicant also claimed the Arrival interview was short and he later learned it was not shameful to talk about sex.

[78]    I acknowledge that the applicant did not raise the claim of pre-marital relations in his Arrival interview and that it is possible that the claim has been fabricated to enhance a profile of someone who is owed protection. Nonetheless, I also have other concerns about the claimed pre-marital relation with [the girlfriend]. When asked for further details about [the girlfriend’s] current situation in Pakistan, the applicant stated that tribal law indicates that both parties have to be punished together. When asked if he would not be punished if he was not in the village, the applicant replied that if he was caught anywhere in Pakistan, he and [the girlfriend] will be killed. The applicant was then questioned what punishment would occur if [the girlfriend] marries and the applicant replied it was agreed and written in a paper that if within 10 years, he is located, he would be punished. When asked for evidence of the written decision, the applicant then stated that the decision was not in writing as the decision was taken by a Jirga. The applicant also stated that the rules of the tribe were if [the girlfriend] marries and is accepted, he would be protected. The applicant added that his father had informed him that [the girlfriend] is at her home and is ‘ok’.

[79]    Given the applicant's responses above and country of origin information outlined below, I have concerns with elements of the applicant's claim of pre-marital relations. Despite the applicant's claims of shame and stress, the introduction of the claim did not occur until his SHEV application. The applicant provided contradictory testimony regarding whether the decision from the Jirga was in writing or not. There is a lack of country of origin information to support time limits for punishment and that both ‘guilty’ parties have to be punished together following a Jirga decision. Country of origin information outlined below also indicates women are treated severely with respect to honour crimes and this contrasts with the applicant’s claims that [the girlfriend] is fine.

[80]    I have balanced the above concerns with the following factors. I accept that the applicant would have felt shame and embarrassment about the alleged incident. I note that in the Arrival interview, the applicant alluded to other issues when asked whether he had anything else to say that he was not asked about. The applicant’s response was there (are) too many things in my heart. I note also the Arrival interview was conducted by a female and cultural aspects may have impacted on the applicant’s desire to relate details of the incident. Further, the applicant has provided details of relationships with members of the opposite sex including a female friend in Indonesia and the applicant currently has a girlfriend in Australia. I also note the applicant’s Protection visa application makes reference to a ‘death penalty’, a public execution and that in Pashtun culture if a boy and girl get caught having sex with out marriage, the elders bring boy and girl to public place and shoot them to death. However, the application has not specifically claimed in any written statement that a Jirga was conducted and a punishment was issued by the Jirga. I consider it has been speculation on the applicant’s behalf as to what would happen if he is returned to his home area in Kurram Agency Pakistan. On the basis of the above, I accept the applicant was in a relationship with [the girlfriend] but I do not accept the claim of pre-marital relations.

[81]    The applicant emphasised that his father had told him that, a person’s behaviour was more important than government laws; the Pakistani government authorities do not become involved in local issues and that local problems may be resolved through local Jirga councils involving local tribal leaders. This is consistent with country of origin information for disputes in the FATA. However, in the applicant’s case, I consider there have been elements of the claim that have been fabricated and embellished and I find that the relationship has not drawn the adverse attention of local tribal leaders. There is no information that anyone in the applicant’s family or [the girlfriend’s] family has been physically harmed as a result of the applicant’s and [the girlfriend’s] claimed pre-material relations. I note that country of origin information indicates that in certain circumstances, there is also a high evidentiary requirement of four adult male witnesses for punishment to occur and people making false accusations are also subject to punishment. The applicant has not submitted any claims that there were four adult male witnesses to the incident who could verify [the girlfriend’s] cousin’s account. Further, I could find no information that there is a requirement for both parties to be present for a punishment to occur or that there is a time limit for the punishment.

[82]    In tribal areas, the punishment for sexual offences such as adultery (zina) is stoning to death. DFAT report that the Pakistan Federal Government governs FATA under the Frontier Crimes Regulations (FCR) and the FCR permits collective punishment of family or tribal members of those found guilty of criminal acts. The US State Department report on Human Rights Practices for Pakistan (USSDHRPP) indicates that informal justice systems exists especially in rural areas where tribal leaders in Pashtun areas may hold local council meetings (panchayats or Jirga’s) in defiance of established legal systems. The USSDHRPP report that in Pashtun areas, primarily the FATA, councils were held under the FCR guidelines and the councils often subject women to violent punishment or death for so-called honour related crimes.

[83]    Taken collectively, I consider there has been a concern about the relationship between the applicant and [the girlfriend] and there were attempts at reconciliation between the applicant's family and [the girlfriend’s] family. However, I do not accept any Jirga decision was made and hence that a death penalty has been imposed upon the applicant by a Jirga. I nevertheless accept that the applicant has been in a relationship with [the girlfriend]; that the applicant's family's attempts at reconciliation with [the girlfriend’s] family have been rejected and that the applicant fears harm from [the girlfriend’s] family due to possible shame and dishonour brought upon her family.

9    The delegate accepted that, if the appellant returned to the Kurram Agency, he faced a real risk of significant harm from the family of the woman in question: ibid at [155]. However, the delegate found that the appellant could relocate within Pakistan to avoid that risk: ibid at [165].

Referral to the Authority

10    The delegate’s decision was referred to the Authority in accordance with s 473CA of the Act. For this purpose, the appellant provided submissions dated 25 October 2016 to the Authority, which, amongst other things, disputed the delegate’s finding that the appellant had not had pre-marital relations, and that no Jirga decision had been made. Relevantly to the present appeal, the submissions expressed the following:

12.    … it is submitted that the Applicant should be afforded procedural fairness to provide additional supportive evidence with relation to the above findings as it is not evident from the departmental interview that the Applicant was advised that lack of additional evidence from him to support his claim of pre-marital sex with [the girlfriend] in Pakistan and further evidence of Jirga decision being made on this very issue would render such finding by the Department.

11    The appellant’s submissions provided various additional documents to the Authority, including what was described in the submissions (at para 17) as a “Compromised [sic] reached between the parties through members of the Jirga”. In relation to the additional documents, the submissions expressed the following:

In regards to the above documents we submit that the information contain in the documents does not have new information which attract section 473DD of the Migration Act. It actually corroborating the claim made by the applicant. Information is in support of his claim on fear for serious harm from Tribunal authorities. …

12    The appellant’s submissions to the Authority relevantly attached a document that provided as follows:

Translation of a Jirga Decision from Urdu to English

Compromise reached between the parties through Members of the Jirga

First Party: [name redacted] son of [name redacted], currently residing at Parachinar, Kurram Agency

Second Party: [appellant’s father’s name] son of [name redacted], currently residing at Parachinar, Kurram Agency

There had been illicit relationship between [the appellant] son of [appellant’s father’s name], the Second Party and Miss [girlfriend’s name] daughter of the First Party. In this regard, the parties decided to seek assistance by the jirga members. And we, jirga members, have arrived at the following decision after obtaining full authority by the parties for a compromise between them:

(1) Because it is a matter of honour and prestige, it has been decided that the parties will kill both of them, the girl and the boy. In case any of the parties violate this decision or back out from it, their house will be burnt and they will be ousted from the village; they will not be allowed to take part in any social event for life and there would be no interaction with them forever.

The decision has been compiled for the purpose of record.    Dated: 15-10-2010

Signatures in Urdu by:

[name redacted], JIRGA MEMBER

[name redacted], JIRGA MEMBER

[name redacted], JIRGA MEMBER

Signatures in English by:

Master [name redacted], JIRGA MEMBER

Signature in Urdu by the First Party: [name redacted] son of [name redacted]

Signature in Urdu by the Second Party: [appellant’s father’s name] son of [name redacted]

I certify that this is a true translation of the attached document.

([name of translator]) Professional Translator Urdu > English

Dt.11-10-2016                NAATI No: [number redacted]

13    As can be seen, the document is, on its face, an English translation (made on 11 October 2016) of a record of a decision made by certain Jirga members on 15 October 2010. (I was informed by counsel for the appellant in this Court that the original version of this document was before the Authority, but that it was not included in the court book in the Circuit Court or the appeal book in this Court.) I will refer to this document below as the “Jirga Translation”.

Authority’s decision

14    On 13 December 2016, the Authority affirmed the delegate’s decision not to grant the appellant a visa. Its reasons were split into two parts: the “Background to the review” and the “Applicant’s claims for protection” (IAA Reasons (Background and claims)) and the “Factual findings” (IAA Reasons (Findings)).

15    For the purposes of this appeal, the critical part of the Authority’s reasons relates to its determination that, for the purposes of s 473DD(a) of the Act, there were not exceptional circumstances to justify considering “new information” in the form of the Jirga Translation. For reference, s 473DD of the Act provides as follows:

Considering new information in exceptional circumstances

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.

16    The relevant paragraphs of the IAA Reasons (Background and claims) that dealt with the Jirga Translation are as follows:

Information before the IAA

[3]    I have had regard to the material referred by the Secretary under s.473CB of the Migration Act (the Act).

[4]    On 26 October 2016, the IAA received an email submission from the referred applicant’s representative. The submission comprises two elements.

[5]    Firstly, it contains legal argument addressing the decision made by the delegate. I do not consider this element of the submission to be new information and have had regard to it. The applicant’s representative argues that the applicant should have the opportunity to clarify and provide further information in response to the Delegate’s findings in relation to the applicant’s claimed relationship with his girlfriend. During an interview conducted on 30 September 2015 for the purposes of the applicant’s TPV application, the Delegate asked the applicant a series of questions about his claim to have had a relationship with a woman. He put to the applicant that his claim to have had a girlfriend with whom he engaged in sex was fabricated to strengthen the applicant’s claims to protection. I am satisfied that the applicant was aware of the potential for the Delegate to conclude that his claim to have had a relationship with a woman with whom he engaged in sex was fabricated and that he was afforded the opportunity during the interview to address the Delegate’s concerns and to provide information in relation to this claim. I note that the applicant provided several additional documents (in support of his claimed identity) following the TPV interview but did not provide any additional information in support of his claim to have had a relationship or sex with a woman.

[6]    The second element of the submission is three documents which were not before the delegate and are new information. Section 473DD requires that the IAA must not consider any new information unless it is satisfied that there are exceptional circumstances to justify considering the new information. In relation to information provided by the applicant, there is a further requirement that the applicant must satisfy the IAA that the new information was not, and could not have been, provided to the delegate before the delegate made his decision, or that the new information is credible personal information that was not previously known and, had it been known, may have affected the outcome of the applicant’s claims.

[7]    The IAA ‘Practice Direction for Applicants, Representatives and Authorised Recipients’ directs applicants, representatives and others seeking to provide new information to the IAA on behalf of the applicant to provide an explanation as to why the information could not have been given to the Department before the decision was made, or the information is credible personal information which was not previously known and may have affected consideration of the applicant’s claims, had it been known. The submission does not include any such explanation.

…

[9]    The second document is an uncertified copy of a purported decision made by a Jirga, a tribal council, relating to the applicant’s claimed relationship with a woman, dated 15 October 2010, accompanied by an uncertified copy of a translation into English. The applicant’s representative submits that the IAA should consider this new information because the applicant was not made aware during the TPV interview that the lack of additional evidence from him to support his claim of pre-marital sex with a woman in Pakistan, including further evidence of a Jirga decision, could lead the Delegate to make an adverse finding in relation to his claims regarding a relationship with a woman. As discussed, I am satisfied that the applicant was aware that the veracity of this aspect of his claims was in question and that he had the opportunity to provide additional evidence following the TPV interview. I am not satisfied that there are exceptional circumstances to justify the consideration of this information.

…

17    Having determined not to consider the new information presented by the appellant, the Authority continued to review the delegate’s decision. In doing so, the Authority adopted a different approach to the delegate in relation to the appellant’s claims. In particular, the Authority found that, although the appellant had some form of relationship with a woman, they had not had sex, and the relationship was not, and was not perceived to be, romantic. The IAA Reasons (Findings) expressed the following about the appellant’s alleged relationship with his girlfriend:

Relationship with girlfriend

[22]    The applicant claims that he had a girlfriend and that his tribe and his girlfriend’s family and tribe want to kill him because he and his girlfriend were seen to have engaged in pre-marital sex on one occasion.

[23]    When asked why he left Pakistan in his entry interview, the applicant did not mention that his tribe and his girlfriend’s family and tribe wanted to kill him because he was seen engaging in sex with his girlfriend, nor did he mention any past or current relationship with a woman. In his TPV application the applicant explained that he did not fully describe his circumstances during the entry interview because of the limited time available and the stress he felt in the situation. He also claimed that he did not mention the issues arising from his relationship with his girlfriend because he felt embarrassed as such matters are shameful in his culture, and because the departmental officer told him that he would have another opportunity to tell his story in another interview.

[24]    When asked about the omission of this claim in his entry interview during the TPV interview, the applicant explained that he felt stressed as being in the detention centre was a new situation, he was not in good condition, he felt too embarrassed and ashamed to mention this claim and he was only given a few sentences in which to explain his reasons for leaving Pakistan. He also claimed that he had made it clear to the interviewing officer that he ‘could not say everything in 45 minutes’ and would ‘not tell her anything’. The delegate put to the applicant that this claim was added to enhance his claims to protection, to which the applicant replied that he was under oath, and again referred to the stress he felt in the detention centre and a new country, and the embarrassment he felt that prevented him from talking about sex. He also claimed that the entry interview was of 45 minutes duration and he not able to fully explain his circumstances in that amount of time.

[25]    I have reviewed the recording of the entry interview, which is of approximately one hour and forty minutes’ duration. I note that the interviewing officer was female. The applicant did not, during the recorded interview, tell the interviewing officer that he could not tell her everything in 45 minutes, or that he would not tell her anything. The applicant does not indicate that he was unwell during the interview. The recording does not include any reference to a second interview, but I accept that the applicant may have expected to have a second interview on the basis of advice from departmental staff or other applicants for protection.

[26]    I accept that entry interviews are relatively brief and are not designed to explore an applicant’s claims for protection in detail. The interviewing officer asked the applicant to tell her in a few sentences why he left Pakistan and the applicant therefore had a relatively limited opportunity to explain his reasons for leaving Pakistan. However, notwithstanding the interviewing officer’s instructions, the applicant provided a detailed response in which he referred to the security situation, his cousin’s claimed killing by the Taliban, his cousin’s claimed profile as a village elder who spoke out against the Taliban, the impact of protracted conflict on his area, including food and medicine shortages and interruptions to utilities and education, and the arrival in the area of the Babu group, their activities and a threat to his father from that group.

[27]    Having regard to the detailed nature of the applicant’s response, I am not satisfied that the format of the interview or the interviewing officer’s instructions discouraged or prevented him from presenting the central reasons for his departure from Pakistan.

[28]    At the start of the interview the interviewing officer advised the applicant that ‘this is your opportunity to provide information regarding your circumstances’ and asked the applicant to provide honest and accurate information in the interview, which the applicant agreed to do. I am satisfied that the applicant was aware of the importance of providing accurate responses during his entry interview. I am not satisfied, having regard to the instructions from the interviewing officer, that the applicant was given or held the impression that it would be acceptable to omit important information about key reasons for his departure from Iraq on the basis that there would be another interview, whether or not he was advised or aware that there would be a later interview.

[29]    I accept that, were it true, the matter of sex with his girlfriend may have been embarrassing to the applicant. I also accept that this embarrassment may have been felt more keenly in the presence of a female interviewing officer. However, in view of his undertaking to provide honest and accurate responses, and the later claimed centrality of this claim to the applicant’s motivations for leaving Pakistan, I find it implausible that he would not have mentioned these events in some form in his arrival interview when asked why he left Pakistan had they occurred as claimed. I note that the substance of the applicant’s claim to have left Pakistan because he was afraid that his tribe and his girlfriend’s family wished to kill him because of a relationship with his girlfriend could have been conveyed without referring explicitly to sex. When asked whether he had a girlfriend or partner, the applicant responded that he did not have a girlfriend and that his father was the one who would decide such matters. I note that his response was relaxed and good humoured and there was no hesitation or embarrassment evident in the applicant’s responses to questions about the existence of a girlfriend or his reasons for leaving Pakistan.

[30]    I do not accept that a desire to avoid embarrassment would have prevented the applicant from referring to the claimed relationship or led him to omit any reference to his fear of being killed because of this relationship.

[31]    I am willing to accept that the applicant felt a degree of stress during his entry interview due to his situation in detention in a new country, that he had a fairly limited opportunity in this interview in which to provide his reasons for leaving Pakistan, and that he may have felt a degree of embarrassment about discussing sex with his girlfriend, if this claim was true. However, for the reasons discussed, I do not accept that these factors, individually or cumulatively, provide an adequate explanation for the applicant’s failure to mention this claim, or any relationship with a girlfriend in his entry interview.

[32]    In his TPV application the applicant claimed that the one incident of sex with his girlfriend took place at school early one morning before school started, while in his TPV interview, the applicant claimed it occurred at a party to celebrate leaving school. In his entry interview and in his TPV application, the applicant claimed to have stopped attending school in approximately 2010, and on the limited evidence available, he appears to have left Pakistan some time in 2011.

[33]    I have significant reservations regarding the applicant’s claim to have had a romantic relationship with a woman that included one instance of sex. I am willing to accept that he had some form of a relationship with a woman, but having regard to the evidence before me, I do not accept that the applicant had, or was perceived to have had, a romantic relationship in which the woman was considered to be his girlfriend, or that he engaged in, or was observed engaging in, sex with her, or that he is of any adverse interest to members of his tribe, members of his claimed girlfriend’s family or tribe, or any other group or person on this basis. It follows that I do not accept that the applicant or his family have received any visits or threats from members of his claimed girlfriend’s family or tribe, that the applicant’s tribe has threatened the applicant, his family or his claimed girlfriend, or that there was any Jirga decision or discussion in relation to the applicant or his claimed girlfriend.

Federal Circuit Court’s decision

18    The appellant sought judicial review of the Authority’s decision in the Circuit Court on 17 January 2017. The first ground of review in the appellant’s further amended application in that Court alleged that the Authority misconstrued or misapplied s 473DD of the Act when the Authority refused to consider the Jirga Translation on the basis that there were not exceptional circumstances for doing so: see AGK17 v Minister for Immigration & Anor [2019] FCCA 1156 (FCCA Reasons) at [15].

19    The Circuit Court heard the judicial review application on 12 March 2019 and delivered its decision on 3 May 2019. In relation to the Jirga Translation, the Circuit Court acknowledged that the translation corroborated the appellant’s claim to have been caught having sex with his girlfriend, but that, contrary to the appellant’s submissions to the Authority, it did not logically follow that such corroboration is not “new information” for the purposes of s 473DD of the Act: FCCA Reasons at [38]–[39]. As such, the Circuit Court agreed with the Authority’s finding that the Jirga Translation was “new information” for those purposes: ibid at [40].

20    The appellant further submitted in the Circuit Court that the Authority should have, but failed to, consider the matters set out in s 473DD(b)(ii) of the Act. The Circuit Court considered the decisions of Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; 257 FCR 111 (BBS16), AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111; 162 ALD 442 (AQU17) and DLB17 v Minister for Home Affairs [2018] FCAFC 230 (DLB17) before relevantly concluding as follows:

[50]    In short, as set out above, the IAA in the current case understood correctly, as was plain in the migration agent’s submissions, that the Jirga decision was put forward by the applicant to corroborate his claim concerning being “caught” having premarital sex with his girlfriend.

[51]    In that light, the applicant has not pointed (as was respectfully found in AQU17 at [17]:

“…to any fact or matter materially bearing upon the Authority’s consideration as to whether it was satisfied of the requirement under s 473DD(a) that was not taken into account and, had it been taken into account, would have materially born upon its consideration”.

[52]    The “flaw” in the applicant’s argument now is, contrary to authority to infer that in all cases the IAA must have regard to s.473DD(b)(ii). Further, to understand that each case must be considered with reference to its own circumstances.

[53]    In the current case, I agree with the Minister that the IAA had considered all the matters required of it. The legislative direction to the IAA was that it must not consider “new information”. The exception to this required the IAA to be satisfied that exceptional circumstances existed and that the applicant satisfied it that either of the matters at s.473DD(b) existed.

[54]    In the current case, the only relevant explanation or argument provided by the applicant to the IAA was in the submissions made by his migration agent.

[55]    Those submissions asserted that the applicant should be given the opportunity to have the information in the Jirga decision considered by the IAA because he was not told by the Delegate at the interview that his lack of evidence in support of the premarital sex claim would lead to the finding made by the Delegate.

[56]    This is exactly what the IAA considered at [9] of its decision record. The applicant has not now pointed to anything else in the circumstances presented by this case and arising from those circumstances that was relevant to the consideration of exceptional circumstances. There is nothing in the migration agent’s submissions, or elsewhere, to have compelled the IAA to consider s.473DD(b)(ii). (Noting also in that regard that the date of the Jirga decision pre-dated the Delegate’s decision by some years).

[57]    In all, ground one is not made out.

21    The Circuit Court also dismissed the second ground of review in that Court (FCCA Reasons at [58]–[84]), which is irrelevant to this appeal. The appellant’s judicial review application was accordingly dismissed by the Circuit Court: ibid at [85].

Appeal to this Court

22    The appellant appealed to this Court on 21 May 2019. The appellant’s notice of appeal only includes one ground of appeal, but it is supported by lengthy particulars. The ground of appeal is as follows:

1.     The FCCA erred in failing to find that the second respondent (Authority) had erred when determining whether there were exceptional circumstances under s 473DD(a) of the Migration Act 1958 (Cth) to justify considering new information, in particular, the “Jirga decision” submitted by the appellant.

Particulars

a.     The appellant provided the Authority with a “Jirga decision”, which was “new information” for the purposes of s 473DD, and which corroborated the appellant’s claim to fear harm in Pakistan on account of having engaged in premarital sex with his girlfriend (Relationship Claim): AGK17 v Minister for Immigration and Border Protection [2019] FCCA 1156 (AGK17) at [40], [50].

b.     The Authority found that there were not exceptional circumstances to justify c    onsidering the Jirga decision: Authority’s decision at [9]. In doing so, the Authority erred by:

i.     considering only whether the appellant knew that the veracity of the Relationship Claim was in issue and whether he had previously had the opportunity to bring the Jirga decision forward;

    ii.     failing to consider either or both of:

   A.     the potential relevance of the Jirga decision to the determination of the appellant’s case, and whether this impacted upon whether there were exceptional circumstances for considering the Jirga decision;

   B.     whether the Jirga decision satisfied s 473DD(b)(ii), and, if so, whether this bore upon whether there were exceptional circumstances for considering the Jirga decision.

  c.     The FCCA found that:

i.     the Authority understood the purpose for which the appellant put the Jirga decision forward. As such, the appellant had not pointed to “to any fact or matter materially bearing upon the Authority’s consideration as to whether it was satisfied of the requirement under s 473DD(a) that was not taken into account and, had it been taken into account, would have materially born upon its consideration”: AGK17 [50]-[51];

ii.     the appellant’s case had proceeded on the basis that, in all cases regarding s 473DD(a), “the IAA must have regard to s.473DD(b)(ii)”: AGK17 at [52];

iii.     there was nothing in the appellant’s migration agent’s submissions to the Authority, “or elsewhere”, that compelled the Authority to consider s 473DD(b)(ii): AGK17 at [56].

d.     In reasoning in this way, and in failing to find that the Authority had erred, the FCCA made the following errors:

i.     the findings referred to in particulars (c)(i) and (iii) above involved error as the appellant had pointed to the following matters, not considered by the Authority when assessing the Jirga decision under s 473DD(a), that were relevant to that assessment:

   A.     the degree of support that the Jirga decision, if accepted, would provide to the appellant’s claims (and in particular the Relationship Claim);

   B.     the important of the Relationship Claim, to which the Jirga decision was relevant;

   C.     the factors in s 473DD(b)(ii) and the ease with which the Jirga decision was capable of satisfying them;

ii.     not finding that the Authority had erred in the manner outlined in particular (b) above in light of the matters referred to in particular (d)(i) above;

iii.     making the finding referred to in particular (c)(ii) above in circumstances where the appellant had submitted that “the factors in s 473DD(b)(i) and (ii) need not, in every case, be considered by the IAA when deciding whether ‘exceptional circumstances’ exist”. Rather, the appellant’s case was that the circumstances of his case, including the matters outlined at particular (d)(i) above, meant that consideration of the s 473DD(b)(ii) factors was required in the present case.

23    The appeal was heard on 21 February 2020. The appellant was represented by Mr Mostafa of counsel, and the Minister was represented by Mr Reilly of counsel. Both had filed written outlines of submissions in support of their clients.

Submissions

Appellant’s submissions

24    The appellant contends, in summary, that the Authority’s reasons (in particular [5] and [9] of the IAA Reasons (Findings)) demonstrate that the credibility or potential importance of the Jirga Translation to the appellant’s case was not considered by the Authority when applying s 473DD(a) of the Act.

25    The appellant submits that it was erroneous for the Authority not to consider the credibility or potential importance of the Jirga Translation for the following broad reasons:

(1)    first, the Jirga Translation was directly relevant to significant findings of fact that had been made against the appellant by the delegate. Moreover, the Authority itself recognised the importance of the claimed relationship to the appellant’s claims for protection. According to the appellant, the Jirga Translation, if taken at face value, cast significant doubt on the Authority’s findings regarding that relationship, and the conclusion that the appellant could safely return to his home area;

(2)    second, although the submissions by the appellant’s representative’s to the Authority displayed a misunderstanding of the relevant legislative provisions (in particular, the submission that the Jirga Translation was not “new information”), the submissions nevertheless drew the Authority’s attention to the purposes for which the appellant advanced the Jirga Translation; and

(3)    third, the matters referred to in s 473DD(b) may affect whether there are exceptional circumstances to justify considering new information.

26    The appellant further argues the Circuit Court erred in the following ways:

(1)    first, the “flaw” in the appellant’s argument identified at [52] of the FCCA Reasons (as extracted above at [20]) did not exist. The appellant accepted that it was not necessary for the Authority to have regard to the matters in s 473DD(b) in every case in which the “exceptional circumstances” question arises, and the appellant did not advance a case in the Circuit Court premised upon the matters in s 473DD(b) being a mandatory relevant consideration under s 473DD(a); and

(2)    second, there were various matters that required the Authority, when dealing with s 473DD(a), to look beyond the question as to whether the appellant already had a sufficient opportunity to present the Jirga decision. According to the appellant, these matters included the cogency of the Jirga Translation at face value, the capability of the Jirga decision satisfying ss 473DD(b)(i) and (ii), and the importance of the appellant’s claims regarding the claimed relationship to the Authority’s decision.

Minister’s submissions

27    In response, the Minister contends, in summary, that the Authority correctly applied s 473DD(a) of the Act in determining that there were no exceptional circumstances to justify it considering the Jirga Translation. In this regard, the Minister highlights that “exceptional circumstances” for these purposes cannot be ones that are regularly or routinely or normally encountered.

28    The Minister submits that the appellant’s claim that the Authority did not consider the credibility or potential importance of the Jirga Translation is misconceived. According to the Minister, the Authority understood that the Jirga Translation was put forward as corroborative of the appellant’s claim to have been caught having pre-marital sex with his girlfriend and, as such, the alleged significance of the Jirga Translation to the appellant’s claims can therefore be taken to have been understood by the Authority.

29    The Minister further argues that the Authority was not obliged to make any express finding as to the credibility of the Jirga Translation. To impose such an obligation would, in the Minister’s submission, impose on the Authority, in the course of considering s 473DD(a), a requirement to also find whether s 473DD(b)(ii) was also satisfied. While the considerations under para (a) of s 473DD can overlap with those in para (b), there is no general requirement that the Authority must consider the requirements of s 473DD(b) when considering the requirements of s 473DD(a). In any event, the Minister submits that there is nothing in the Authority’s reasons to indicate that it considered the Jirga Translation to be credible.

Relevant principles

“Exceptional circumstances”

30    What amounts to “exceptional circumstances” for the purposes of s 473DD(a) of the Act is “inherently incapable of exhaustive statement”: Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 264 CLR 217 (Plaintiff M174) at [30] per Gageler, Keane and Nettle JJ. That said, for a circumstance to be “exceptional”, it “need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered”: R v Kelly [2000] 1 QB 198 at 208 per Lord Bingham of Cornhill CJ, for the Court of Appeal, quoted in Plaintiff M174 at [30] per Gageler, Keane and Nettle JJ; see also Maan v Minister for Immigration and Citizenship [2009] FCAFC 150; 179 FCR 581 at [51] per Dowsett, Greenwood and Collier JJ; AQU17 at [13] per McKerracher, Murphy and Davies JJ and CAQ17 at [89] per Derrington and Steward JJ.

31    The Authority should consider all the relevant circumstances of the case in determining whether or not there are exceptional circumstances to justify the consideration of new information: BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958; 254 FCR 221 (BVZ16) at [39]–[41] per White J; BBS16 at [104] per Kenny, Tracey and Griffiths JJ; AQU17 at [13]; Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110; 264 FCR 249 (CQW17) at [51] per McKerracher, Murphy and Davies JJ; DLB17 at [22] per McKerracher, Barker and Banks-Smith JJ; BLR17 v Minister for Immigration and Border Protection [2019] FCA 2167 (BLR17) at [47] per Murphy J. That said, the proper construction of the term “exceptional circumstances” should take account of the context in which that term is used in Pt 7AA of the Act. This particularly includes that the prima facie statutory position is that the Authority is to review the “fast track reviewable decision” on the papers and without accepting or requesting new information: s 473DB(1); BVZ16 at [42]; CAQ17 at [89]. Indeed, there is no duty for the Authority to get, request or accept any new information: s 473DC(2); see also DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12; 258 FCR 551 at [75] per Reeves, Robertson and Rangiah JJ.

Interaction between paragraphs (a) and (b) of s 473DD

32    The criteria under paras (a) and (b) of s 473DD of the Act are cumulative: Plaintiff M174 at [31]; see also AQU17 at [13] and BLR17 at [45]. But those criteria may overlap to some extent: BBS16 at [102], citing BVZ16 (see [9]). The result is that the Authority’s consideration of para (b) may inform the Authority’s state of satisfaction in relation to whether there are exceptional circumstances for the purposes of para (a): BBS16 at [102]; CVV16 v Minister for Home Affairs [2019] FCA 1890 (CVV16) at [24]–[25] per Mortimer JJ; CAQ17 at [91]. Indeed, some decisions have expressed that one would usually, frequently, or often expect the Authority to consider the matters relevant to para (b) in applying para (a): BVZ16 at [9]; CQW17 at [51]; CAQ17 at [91]; BLR17 at [57(a)]. Even so, that does not mean that the matters under para (b) must, in all cases, be considered by the Authority in deciding whether exceptional circumstances exist: AQU17 at [14]; CVV16 at [24]; CAQ17 at [91] and [122].

33    The extent to which para (b) of s 473DD bears upon the determination as to whether exceptional circumstances exist for the purposes of para (a) will depend on the circumstances of the particular case: AQU17 at [14], citing BVZ16, BBS16 and CHF16 v Minister for Immigration and Border Protection [2017] FCAFC 192; 162 ALD 1; CAQ17 at [86]. In my view, Derrington and Steward JJ outlined the appropriate approach to reviewing the exercise of s 473DD(a) as follows in CAQ17 at [90]:

… seeking to ascertain what factors must be considered in reaching the state of satisfaction or non-satisfaction for the purposes of s 473DD(a) may be the wrong approach. As the overall question for the authority involves a factually idiosyncratic analysis where the facts and circumstances which might support or deny the existence of exceptional circumstances will vary from case to case, it may simply be that it is not possible to identify, as a matter of statutory construction, what are or are not matters or factors which must be considered. In the reaching of the relevant state of mind, perhaps the real question is whether the Authority has asked itself the correct question and applied the correct test, being whether there are exceptional circumstances to justify the consideration of the “new information” despite it not having been before the Minister when the initial decision was made. If the Authority has failed to consider significant matters factually relevant to the question of whether exceptional circumstances existed, it is likely that an inference arises that it either asked itself the wrong question or failed to apply the correct test. In that way it is not that the legislation mandates consideration of particular facts or types of fact, but that it requires the Authority to consider the factual matrix of the circumstances of the application before it and apply the prescribed statutory test. Those circumstances will dictate those factors which are obviously relevant factors and those which are obviously irrelevant.

Nature and cogency of the new information

34    Given the breadth of the expression “exceptional circumstances” in s 473DD(a) of the Act (see CQW17 at [51]), the nature and cogency of the new information are relevant factors in characterising whether the requisite circumstances exist to justify the consideration of that information. This will naturally include the relevance, credibility and reliability of the new information. For this reason, it is important for the Authority to consider the entirety of the new information in applying s 473DD(a): see CCR18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 9 at [42] and [47] per Jackson J.

35    In respect of the degree of relevance of the new information, Derrington and Steward JJ, in the course of considering the relevant principles, expressed the following in CAQ17 at [92]:

That is not to say that matters concerning the substance or merits of the new information will not sometimes be relevant. Were a piece of compelling information in existence at the time of the Minister’s decision but not revealed due to an oversight, its degree of relevance may tip the scales towards a favourable decision, whereas less significant information may not have done so in the same circumstances.

Consideration

36    In accordance with the principles outlined above, it was clearly relevant (although not necessarily mandatory) for the Authority in the present case to take into account the nature and cogency of the Jirga Translation in assessing whether exceptional circumstances existed to justify considering that new information. The Authority did not expressly state in its reasons that it had considered the credibility and potential importance of the Jirga Translation. However, based on a fair reading of the Authority’s reasons, my view is that, contrary to the appellant’s submission, the Authority did have regard to the credibility and potential importance of that document. This conclusion is based upon three broad cumulative factors.

37    The first factor pertains to the context in which the Authority assessed the Jirga Translation for the purposes of s 473DD and, in particular, the history of the appellant’s claims regarding the purported Jirga decision. That history has been recorded above. In particular, the applicant did not raise the claim of pre-marital sex in his arrival interview. Instead, he said at that interview that he did not have a girlfriend or partner. Then, when the applicant raised the Jirga decision at his interview with the delegate, the applicant said that the decision was not in writing (although his evidence on this was inconsistent). And when the appellant had the opportunity to provide further documents to the delegate after that interview, he provided several additional documents, but did not provide any additional information in support of his claim to have had a sexual relationship with the girlfriend. On this basis, in conjunction with other concerns, the delegate dismissed the existence of a Jirga decision. Thus, when the existence of Jirga Translation (which was purportedly recording events that occurred six years prior) arose for the first time after the delegate’s adverse decision, it was presented to the Authority in questionable circumstances. It was not as if the appellant had failed to disclose the Jirga Translation to the delegate “due to an oversight”: cf CAQ17 at [92].

38    The second factor is that the purpose for which the appellant was presenting the Jirga Translation was patently obvious to the Authority. Discussion of the Jirga decision, and the appellant’s relationship with the girlfriend, was a prominent part of the delegate’s reasons (of which the Authority had notice). Then, when the appellant’s representatives provided the Jirga Translation to the Authority, the submissions on the appellant’s behalf expressly stated that the “supportive evidence” related to the appellant’s claim of pre-marital sex with his girlfriend and the Jirga decision (see above at [10]). The same submissions stated that the new information, including the Jirga Translation, was being provided because it corroborated the appellant’s claim to fear serious harm from Tribal authorities if removed to Pakistan (see above at [11]). The Authority proceeded to expressly acknowledge and have regard to the legal argument contained in those submissions (see IAA Reasons (Background and claims) at [5], as extracted above at [16]). In light of these matters, the reasonable inference is that the Authority was plainly aware of the significance of the Jirga Translation to the appellant’s claims to protection.

39    The third factor is the particular language used by the Authority in its reasons. For this purpose, it is necessary to focus on the first sentence of the Authority’s consideration of the Jirga Translation at [9] of the IAA Reasons (Background and claims), which provided as follows:

[9]    The second document is an uncertified copy of a purported decision made by a Jirga, a tribal council, relating to the applicant’s claimed relationship with a woman, dated 15 October 2010, accompanied by an uncertified copy of a translation into English. The applicant’s representative submits that the IAA should consider this new information because the applicant was not made aware during the TPV interview that the lack of additional evidence from him to support his claim of pre-marital sex with a woman in Pakistan, including further evidence of a Jirga decision, could lead the Delegate to make an adverse finding in relation to his claims regarding a relationship with a woman. As discussed, I am satisfied that the applicant was aware that the veracity of this aspect of his claims was in question and that he had the opportunity to provide additional evidence following the TPV interview. I am not satisfied that there are exceptional circumstances to justify the consideration of this information.

(Emphasis added.)

40    In conjunction with the first and second factors considered above, the first sentence of [9] of the IAA Reasons (Background and claims) is, properly construed, more than merely descriptive of the new information which the appellant sought for the Authority to consider. In my view, the dual references to “uncertified”, and the reference to the “purported” nature of the decision, instead expose the scepticism held by the Authority towards the credibility of the document.

41    It must be recalled that the Authority, in making a written statement of its decision and reasons for the purposes of s 473EA of the Act, is not obliged to give reasons in relation to its discretion under s 473DD: CVS16 v Minister For Immigration and Border Protection [2018] FCA 951 at [25]–[30] per Bromwich J; CAQ17 at [119]; Minister for Immigration and Border Protection v AUS17 [2019] FCA 1686 (AUS17 (FCA)) at [25] per Logan J; ABH18 v Minister for Home Affairs [2020] FCA 620 at [25] per Charlesworth J; see also, in relation to the procedural discretion under s 473GB(3)(b) of the Act, BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; 93 ALJR 1091; 373 ALR 196 at [40] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ. Although the court remains entitled to draw inferences from reasons voluntarily provided by the Authority (BLR17 at [63], citing Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 177; 246 FCR 146 at [72] per Kenny, Flick and Griffiths JJ), the position remains that the Authority is not obliged to articulate its reasoning in any great detail: DLB17 at [22]; see also AUS17 (FCA) at [25]. This curbed expectation is consistent with the design of Pt 7AA of the Act, which was intended to provide an efficient and quick means of limited review: see s 473FA; Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth) pp 8-9 and Plaintiff M174 at [1] per Gageler, Keane and Nettle JJ, [80] per Gordon J and [96] per Edelman J.

42    In light of these principles, my view is that it would be inapt in the present case to draw an inference from the Authority’s reasons that, to apply the test in CAQ17 at [90], the Authority “asked itself the wrong question or failed to apply the correct test”. The Authority’s reasoning in respect of the Jirga Translation may have been concise, and otherwise centred on the Authority’s view that the appellant already had a sufficient opportunity to provide additional evidence, including the Jirga Translation, after his interview with the delegate. But the Authority’s failure to expressly state that it had considered the credibility and cogency of the Jirga Translation does not, in my view, lead to the inference that the Authority failed to consider those matters, or that the Authority otherwise failed to engage in an active intellectual process in relation to the credibility and potential significance of the Jirga Translation. Moreover, to conclude with the broader point, to characterise such a “failure” as an error impugning the valid exercise of the Authority’s statutory jurisdiction would, in my view, impose a more demanding burden on the Authority’s expression of its reasoning than the statutory framework of Pt 7AA of the Act warrants.

43    Thus, in my view, the Authority, in considering the Jirga Translation for the purposes of its discretion under s 473DD of the Act, did not commit the jurisdictional error alleged by the appellant.

Request for adjournment pending High Court appeal

44    Two days ago, on 19 May 2020, my chambers informed the parties that I intended to deliver judgment in the present proceeding today, on 21 May 2020. In an email response later that day, the solicitor for the appellant requested that judgment in the present proceeding be reserved until the High Court had heard and determined case no. S71/2020 (AUS17 v Minister for Immigration and Border Protection & Anor) (AUS17), which will consider s 473DD of the Act. The email from the solicitor (who also represents the visa applicant in AUS17) noted that an adjournment of the present proceeding was raised with the Minister’s solicitor on 11 May 2020, but that the Minister had informed the appellant on 19 May 2020 that the Minister did not consent to the adjournment proposed by the appellant.

45    Yesterday, on 20 May 2020, my chambers notified the parties that I would not adjourn the present proceeding as requested by the appellant, and would continue to deliver my judgment as initially indicated. It is appropriate for me to explain why I adopted that course.

46    In AUS17, like the present case, the Authority affirmed a decision of a delegate of the Minister for Immigration and Border Protection not to grant the visa applicant a protection visa. Relevantly, the visa applicant’s then-representative provided to the Authority various documents including a letter in support from a former Sri Lankan Member of Parliament. The author of the letter in support stated that he knew the visa applicant personally and corroborated a number of the visa applicant’s claims.

47    It was accepted that the letter in support was “new information”, but the Authority determined that exceptional circumstances did not exist to justify considering the letter in support. The Authority’s reasons in AUS17 relevantly expressed the following:

[10]    I accept the letter of support … could not have been provided to the delegate as it was written after the delegate’s decision. However, the information it provides recounts the claims already provided by the applicant and in that regard there is no reason to believe that the applicant could not have obtained a letter outlining this information earlier and provided it to the Minister. I am not satisfied any exceptional circumstances exist that justify considering the new information.

48    Upon judicial review, the Circuit Court held that there was a constructive failure of jurisdiction by the Authority because of the misapplication of s 473DD: AUS17 v Minister for Immigration & Anor [2017] FCCA 1986 at [50]. The Circuit Court summarised its reasons in this regard as follows:

[47]     I see the same error [as identified by White J in BVZ16] in this case. The Authority failed to have regard to all material considerations in determining whether to accept the new information pursuant to s.473DD. In particular, the Authority’s consideration in relation to s.473DD(a) was not informed by the consideration of both sub paragraphs of s.473DD(b). Further, a material consideration to which the Authority should have had regard was that the letter in issue was provided to corroborate several of the applicant’s claims, in response to the adverse decision of the delegate. A relevant consideration for the Authority was the probative value of that purportedly corroborative evidence.

49    Upon appeal to this Court, Logan J allowed the Minister’s appeal: Minister for Immigration and Border Protection v AUS17 [2019] FCA 1686. His Honour viewed that the Circuit Court, in interpreting the Authority’s obligations under s 473DD(a), had unduly elevated the prominence of the matters identified in s 473DD(b). Logan J explained as follows:

[24]    It seems to me, with respect, that the learned primary judge proceeded on the basis that, in turning its mind to the subject for satisfaction posited by s 473DD(a) of the Act, the Authority was obliged to be “informed” by a consideration of the matters specified in s 473DD(b). I am not at all sure that in BVZ16 White J intended to convey that there was such an obligation although, with respect, I can see how certain passages in the judgement might be read that way. However that may be, in light of [Plaintiff M174] and AQU17, the basis upon which the primary judge proceeded must now be regarded as mistaken. It follows that the Minister has made out his first proposition.

50    In remarks that bear some resemblance to my analysis above, Logan J then continued to consider the nature and extent of the Authority’s obligations to provide reasons, and the manner in which a court upon judicial review is to consider those reasons:

[25]     As to the Minister’s second proposition, the Authority was obliged (s 473EA) to give reasons for its decision on the review it conducted, not separately for why it was or was not satisfied that it was permitted by s 473DD, in the conduct of that review, to consider new information, here the Letter of Support. So much necessarily follows, in my view, from what was stated in respect of cognate provisions governing the former Refugee Review Tribunal in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405, at [67], per McHugh J and in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, at 396 [235], per Callinan J. As it happens, the Authority chose, voluntarily, to make brief reference to why it considered it could not, for the purposes of determining the review, consider the Letter of Support. The Authority is hardly to be criticised for making that reference.

[26]     It is axiomatic that the reasons of the Authority, as with those of other administrative tribunals and officials, must not in later judicial review (or related appellate) proceedings be read narrowly and with an eye for error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, at 272. Approaching the Authority’s reasons in this way, I am not persuaded that the Authority was unaware that the Letter of Support, if accepted, was capable of corroborating at least some of the respondent’s claims. True it is that the Authority has not employed the word “corroborate”, but the description “letter of support” which was adopted by the Authority conveys that understanding, in my view. Once this is appreciated, what the Authority is conveying in its reasons is that it is not satisfied that this corroborative letter could not have been obtained and furnished to the Minister before the delegate made the decision under review. That is a sufficient basis, explained in tolerably clear, if abbreviated, terms, for satisfaction that no exceptional circumstances exist. The Minister’s second proposition is also made out.

51    On 24 April 2020, Kiefel CJ and Keane J granted the visa applicant special leave to appeal Logan J’s decision to the High Court: AUS17 v Minister for Immigration and Border Protection & Anor [2020] HCATrans 55 (AUS17 (Special Leave Transcript)). It is clear from the transcript of the hearing of the special leave application that the legal issue of importance warranting the grant of special leave relates to the interaction between paras (a) and (b) of s 473DD, and the line of authority in this Court in respect of that issue (as summarised above at [32]–[33]). The visa applicant in AUS17 contends that the ratio of Logan J’s decision is in conflict with the ratio of certain decisions of the Full Court of this Court: AUS17 (Special Leave Transcript) at pp 8–9.

52    The High Court’s approach to the issues in AUS17, once determined, clearly has the potential to alter the broad approach established in this Court in relation to the interpretation of s 473DD. However, my view is that there is only a limited prospect of the impending appeal in AUS17 influencing the outcome of my decision in the present case. These may, of course, be famous last words. But the basis for this view is that the decision in the present case did not hinge on the acceptance of any particular interpretation of s 473DD adverse to the appellant’s case. Instead, I materially agree with the appellant’s submissions in respect of the applicable legal principles. In particular, based on prevailing authority, I accept that the matters addressed in para (b) of s 473DD may influence the application of para (a) of that section, and I accept that the nature and cogency of the new information is a relevant consideration in assessing the exceptionality of the circumstances.

53    Rather than hinging on any particular interpretation of s 473DD, the present decision instead turned on a factual inference from administrative reasons, namely whether or not the Authority, as a matter of fact, considered the credibility and potential relevance of the Jirga Translation. The appellant submitted the Authority did not. I disagreed, and concluded that the Authority did consider those matters. In my view, the maintenance of a debate over the proper inference from the Authority’s reasons in the present case is not a sufficient basis for adjourning the present proceeding as requested by the appellant, particularly where the present proceeding has been heard, I have reached my decision, and I have prepared full reasons for that decision. And, if the appellant, after reviewing my reasons, disagrees with my decision, there remains an avenue of appeal open to him.

Conclusion

54    For the reasons expressed above, the appellant’s appeal to this Court is dismissed. The appellant will pay the first respondent’s costs of the appeal.

Associate:

Dated:        21 May 2020