FEDERAL COURT OF AUSTRALIA

BIK17 v Minister for Home Affairs [2020] FCA 1086

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to amend his Notice of Appeal first notified by the appellant on 19 February 2019 and subsequently made both in writing and orally before the Court in February 2020 be refused.

2.    The Appeal be dismissed.

3.    The appellant pay the first respondent’s costs of and incidental to the Amendment Application referred to in Order 1 above and 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

FOSTER J:

Introduction

1    The appellant appeals from a decision of the Federal Circuit Court of Australia delivered by Judge Smith ex tempore on 7 August 2018 (BIK17 v Minister for Immigration and Border Protection [2018] FCCA 2713). His Honour dismissed the appellant’s application for judicial review of a decision of the Immigration Assessment Authority (IAA) given on 21 February 2017 (IAA’s decision). The IAA had affirmed a decision of a delegate of the first respondent (Minister) dated 9 November 2016 (delegate’s decision) not to grant a temporary protection visa (TPV) to the appellant pursuant to s 65 of the Migration Act 1958 (Cth) (Act).

2    The delegate’s decision was referred to the IAA on 14 November 2016. The appellant met the definition of a “fast track applicant” specified in s 5(1)(a)(i)–(iii) of the Act. Accordingly, his application before the IAA was governed by Pt 7AA of the Act. There was no dispute about these matters in the Circuit Court or before me.

3    The appellant is a Sunni Muslim of Arab ethnicity and a citizen of Iraq. At the present time, he is 40 years of age. He arrived in Australia by boat as an unauthorised maritime arrival on 14 March 2013. The appellant applied for a TPV on 31 March 2016. He attended interviews with departmental officers on 17 March 2013, 31 March 2013 and 21 September 2016.

4    By his Amended Application in the Circuit Court filed on 5 July 2018, the appellant specified only one ground of review, namely:

The Authority made a jurisdictional error by misunderstanding its task on review as it relied upon a failure to mention details at the entry interview of the Applicant.

5    The primary judge rejected that ground of review and dismissed the appellant’s Application for Judicial Review. He also ordered the appellant to pay the Minister’s costs of the Circuit Court proceedings.

6    By Notice of Appeal dated 13 August 2018 and filed on 22 August 2018, the appellant appealed to this Court from the decision of Judge Smith. In that Notice of Appeal, the appellant specified only one ground of appeal, namely:

The primary judge erred in holding that the Authority did not make a legal error when it relied upon a failure to mention details at the entry interview of the applicant.

7    In due course, the appellant’s Appeal in this Court was set down for hearing on 20 February 2019 before Wheelahan J. In the afternoon of 19 February 2019, the appellant attempted to file and seek to rely upon an Amended Notice of Appeal in which he abandoned the sole ground of appeal specified in his Notice of Appeal filed on 22 August 2018 and identified two new grounds of appeal which he then sought to press. Those proposed new grounds of appeal raised contentions and arguments which had not been raised at all in the Circuit Court in support of the appellant’s Application for Judicial Review in that Court. By those two new grounds, the appellant raised issues which were, as at February 2019, likely to be the subject of consideration by the High Court in the matter of BVD17 v Minister for Immigration and Border Protection (2019) 373 ALR 196 (BVD17). As at February 2019, the High Court had granted special leave in BVD17 but had not yet heard argument on the appeal in that case.

8    Following submissions from the parties (both oral and written), Wheelahan J made orders adjourning both the appeal and the appellant’s application for leave to rely upon the two new grounds of appeal notified by the appellant on 19 February 2019 until after the High Court had given judgment in BVD17.

9    On 9 October 2019, the High Court gave judgment in BVD17. In that judgment, the High Court addressed a number of questions concerning the correct construction of Pt 7AA and s 473GB of the Act which have some relevance in the present case.

10    By these Reasons for Judgment, I determine the appellant’s application for leave to amend his Notice of Appeal and, in light of my decision in respect of that application, I determine his appeal.

The Proposed New Grounds of Appeal

11    The appellant set out the two new grounds of appeal in his Written Submission dated 25 February 2020 and filed on 26 February 2020 in the following terms:

Ground Two: Jurisdictional Error

The learned Primary Judge failed to find that the IAA failed to exercise its discretionary powers pursuant to s 473GB(3) within the bounds of reasonableness. Reasonable exercise of the discretionary power in s 473GB(3) required disclosure of the certificate and the material the subject of the certificate (collectively the “Protected Information”) in circumstances where (i) the certificate was invalid; (ii) the Authority had regard to the Protected Information; (iii) s 473GB did not apply to the Protected Information and s 57 (2) was enlivened; and (iii) [sic] the Authority failed to exercise its discretion under 473DC(3). Non-disclosure of the Protected Information undermined the Appellant’s participation in the proceeding and was unreasonable leading to an IAA decision that was plainly unjust and lacking an evident and intelligent justification.

PARTICULARS

a)    The 473GB Certificate was issued on 09 November 2016. It precedes the delegate’s decision on 21 February 2017. The Certificate was part of the material before the delegate as such was part of the review material.

b)    The IAA acknowledged that it had regard to the material referred by the secretary under s 473CB (this included the certificate) – [AB 298, Paragraph3]

c)    On its face, the 473GB Certificate was invalid in that it did not comply with s 473GB(1)(a). S 473GB(1)(a) refers to public interest immunity and one of the specified basis states “contains information relating to an internal working document and business affairs” has never been either a necessary or sufficient basis for public interest immunity whether at common law or under statute.

GROUND THREE

The learned Primary Judge failed to consider whether the IAA fell into jurisdictional error by an erroneous construction of s 473DD in that it dealt with the submissions made by the Appellant inconsistently, such that it cherry-picked and consequently considered new information in circumstances where it had found that it was not satisfied that there were exceptional circumstances to justify the consideration of the new information submitted by the Appellant. In doing so, it constructively failed to exercise its jurisdiction under s 473DD.

PARTICULARS

a)    On 18 December 2016 the Appellant’s representative provided a submission to the Authority (the “Submission”). The submission included three items of new information. The Authority noted that the Submission contained arguments including legal argument addressing the delegate’s decision and was not new information and he had regard to it. [Paragraph 4 and 5, AB298]

b)    With respect to the new information, the Authority found that the Appellant failed to provide explanations pursuant to s 473DD and on that basis found that there were no exceptional circumstances to justify the consideration of the new information submitted. [Paragraph 7 and 9, AB298].

c)    Subsequently, the Authority referred to and relied on new information provided in the Submission in its decision [see Paragraphs 33 and 41] to the Appellant’s detriment, in circumstances where it had stated at Paragraph 9 that “there are no exceptional circumstances to justify the consideration of the new information submitted”.

12    I shall refer to Ground 2 as specified by the appellant as “the s 473GB ground”. I shall refer to Ground 3 as specified by the appellant as “the s 473DD ground”.

13    The references to paragraphs 3, 4, 5, 7, 9, 33 and 41 in the particulars provided in respect of new appeal grounds 2 and 3 are references to those paragraphs in the IAA’s decision a copy of which is at 225–248 in the Court Book which was tendered and admitted into evidence in the Circuit Court and marked as Exhibit A. Those folios are AB297–AB320 in the Appeal Book filed in this Court. The IAA’s decision is also found at AB11–AB34 in this Court’s Appeal Book

The IAA’s Decision

14    At [1]–[10] of its Decision, the IAA said:

Visa application

The referred applicant (the applicant) claims to be a Sunni Arab from Iraq. On 31 March 2016 he lodged an application for a Temporary Protection Visa (TPV).

On 9 November 2016 a delegate of the Minister for Immigration and Border Protection refused to grant the visa.

Information before the IAA

I have had regard to the material referred by the Secretary under s.473CB of the Migration Act 1958 (the Act).

The applicant’s representative provided a submission to the IAA on 18 December 2016. The submission contains argument, including legal argument, addressing the delegate’s decision. I do not consider this aspect of the submission to be new information and have had regard to it.

The submission also includes excerpts from the following three items of new information:

•    a May 2015 internet news item referring to accusations that Shia militia men in Basra have demanded protection money from businesses: http://www.defenseone.com/threats/2015/05/irag-losing-control-nearly-100000-militiamen-enlisted-fight-isis/113434/

•    a January 2016 internet news article on the security situation in Basra: http://www.thenational.ae/world/middle-east/fear-has-become-a-fact-of-life-in-basra

•    a February 2015 news article addressing the dangers posed by Shia militia groups and referring to the range of crimes allegedly perpetrated by these groups, including sexual assault: http://foreignpolicy.com/2015/02/19/irans-shiite-militias-are-running-amok-in­iraq/.

Section 437DD 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.

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.

The applicant was represented in the TPV application process and a submission was provided to the delegate following the TPV interview. I note that there is information before me referring to the range of crimes perpetrated by Shia militia groups in Iraq, including extortion and requests for payment for protection [Department of Foreign Affairs and Trade (DFAT), “DFAT Country Report Iraq”, 13 February 2015, CISEC96CF1160; United Nations High Commissioner for Refugees (UNHCR), “UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Iraq”, 31 May 2012, 3577]. There is also recent information before me regarding the security situation in the south of Iraq, including Basra province [UK Home Office, “Country Information and Guidance Iraq: Security situation in Baghdad, the south and the Kurdistan Region of Iraq (KRI)”, 12 August 2016, OGD7C848D67].

Having carefully considered the circumstances in this case, I am not satisfied that there are exceptional circumstances to justify the consideration of the new information submitted.

Applicant’s claims for protection

The applicant’s claims are contained in the information referred to the IAA. They can be summarised as follows:

•    He is a Sunni Muslim from Al Zubair in Basra province in the south of Iraq. The population of Basra province is mainly Shia.

•    He does not actively practise his Sunni faith and has never entered a mosque.

•    He lived in the family home in Al Zubair all his life. His parents and siblings still live there, other than two married sisters, who live nearby. There used to be a lot of Sunnis in Al Zubair but many have left the area.

•    He operated his own mechanical repair business in Al Zubair from 2005 until his departure from Iraq. Business was good and he was financially successful. He sometimes employed one or two people in the workshop and his brother also worked for him. There were some other Sunni businesses in the area, which was largely made up of other mechanical repair businesses.

•    In 2012, armed people he recognised as members of the Mahdi Army came to his shop demanding money. He knew these people were from the Mahdi Army because he recognised the picture of Moqtada Al-Sadr, the leader of the Mahdi Army, that they carried or wore. The people from the Mahdi Army called him an infidel and demanded that he pay them money to enable them to fight those who did not support Islam. They visited him on a number of occasions and issued similar threats. He did not take these threats seriously as he saw them as simply verbal communication and did not think matters would escalate as they did.

•    He thinks that he was targeted because he is a Sunni Muslim, because he was financially successful, and because he was not aligned with, and therefore had no protection from, any other organisation. In 2010 he did some mechanical work on vehicles owned by an employee of a foreign-owned company, and he thinks this may also have brought him to the attention of the Mahdi Army.

•    On the morning of 25 January 2013, the Mahdi Army visited his workshop early in the morning. He was not there at this time as his brother generally went to the workshop ahead of the applicant in the mornings in order to open the workshop. Members of the Mahdi Army shot his brother in the leg and shot the other workers in the workshop. A neighbouring business owner telephoned him and told him what had happened.

•    He immediately ran away and hid on a relative’s farm about 35 kilometres from his family home. Later in the day of 25 January 2013 he heard from his family that the Mahdi Army had also visited his home looking for the applicant and had assaulted two of his sisters. He found out that his shop had been damaged. He thinks that the Mahdi Army’s actions were acts of revenge or punishment for his refusal to comply with their demands for money.

•    The applicant did not report these matters to the authorities as he could not trust the police. There are militia group members in the police force.

•    He stayed in hiding for ten days before leaving Iraq. His family has told him that his shop is permanently closed.

•    He fears that he will be killed by the Mahdi Army because he refused to comply with their demands for money, because he is a Sunni Muslim and because he will be seen as someone who is opposed to the Mahdi Army. He also fears he will be targeted because he is seen as a wealthy business-owner.

•    The authorities in Iraq cannot protect him because the Mahdi Army has contacts within the police and the government. He would not be safe anywhere in Iraq as the Mahdi Army is everywhere.

•    He fears harm from Daesh, an armed Sunni group, and as a result of the security situation throughout Iraq.

15    At [11]–[44], the IAA set out its findings in relation to the appellant’s claims and also provided reasons for those findings. Those findings may be summarised as follows:

(a)    The IAA did not accept that the appellant was perceived in Iraq to be unreligious or un-Islamic on the basis of his failure to attend Mosque, lack of interest in religion or any other behaviour. The IAA did not accept that the appellant was of any interest to any Shia or Sunni armed group or any other group or person for this reason ([14]);

(b)    The IAA found that there was no credible evidence before it to suggest that, even if the appellant returned to his former work as the owner of a small mechanical repair shop upon his return to Iraq, he would be perceived to be a wealthy individual ([17]);

(c)    The IAA did not accept that the appellant was or is of any adverse interest to the Mahdi Army or any other Shia or Sunni armed group on the basis of mechanical repair work on vehicles owned by the employee of a foreign company in 2010 ([20]); and

(d)    The IAA did not accept the appellant’s claims concerning the violent attacks by the Mahdi Army upon his brother and sisters ([21]–[44]).

16    As to the matters referred to at [15(d)] above, the IAA concluded that a number of inconsistencies in the claims concerning the Mahdi Army’s alleged visits to his workshop made by the appellant from time to time in different interviews were significant when assessing the appellant’s credibility. In particular, at [38]–[44], the IAA said:

I accept that Mahdi Army has been involved in extortion and requests for payment for protection, however, having regard to the vague, inconsistent and implausible nature of important aspects of the applicant’s evidence relating to the claimed visits of the Mahdi Army to his workshop, I do not accept that the applicant was the victim of such demands.

Events of 25 January 2013

During the TPV interview and in his TPV application, the applicant claimed that on 25 January 2013 members of the Mahdi Army visited his workshop and shot his brother before going to his home and assaulting two of his sisters. In the TPV interview, he claimed that he learned of the assault of his sisters by members of the Mahdi Army during a telephone call with his parents on 25 January 2013. In his TPV application he claimed that he learned of the assault of his sisters in a telephone conversation with his brother, while in the entry interview he claimed that he learned of the assault of his sisters the day before he left Iraq, around 2 February 2013.

In the entry interview of 31 Mardi 2013, the applicant claimed that the Mahdi Army shot the ‘workers’ at the workshop, as well as shooting the applicant’s brother in the leg, before assaulting two of his sisters at his home. The applicant did not refer to the shooting of the other employees of the workshop in his TPV application or in the TPV interview.

In his submission of 18 December 2016 to the IAA, the applicant’s representative sought to address the inconsistency in the applicant’s evidence relating to the manner in which the applicant became aware of the claimed assault of his sisters by members of the Mahdi Army. He advises that the applicant maintains that his father told him of the assault of his sisters, not his brother. The applicant attributes the inclusion of the statement in his TPV application that it was his brother who told him to an error made by the phone interpreter used in the preparation of the statement of claims accompanying his TPV application. There are two references to the applicant’s brother advising the applicant of the assault of his sisters and other events of 25 January 2013 in the same paragraph of the applicant’s statement. I consider it unlikely that the interpreter would make the same error of interpretation twice and I note that the applicant claims that another error or errors made by the same interpreter accounts for other inconsistencies in the applicant’s evidence. As previously noted, the applicant signed a declaration in his TPV application to confirm that the information provided in the application was complete, correct and up-to-date in every detail. The application was completed with the assistance of a representative. I do not accept that the inclusion of the claim that it was the applicant’s brother who informed him of his sisters’ assault in the applicant’s TPV application occurred as a result of interpreter error.

Having regard to the inconsistency of the applicant’s claims regarding the events of 25 January 2013, and in particular to the omission of any reference to these events in the applicant’s account of his reasons for leaving Iraq in the 17 March 2013 arrival interview, I do not accept these events occurred as claimed.

Mahdi Army’s interest in the applicant

The applicant claims that his family continues to live in the family home in Al Zubair in Basra province where the claimed assault on his sisters occurred. He has not claimed that any members of his family have been harmed or threatened by the Mahdi Army or any other group or person since he left Iraq. The delegate asked the applicant why he thought the Mahdi Army would have any interest in him now, given that he claims they have exacted revenge by shooting his brother and assaulting his sisters, it is four years since he left Iraq, and he is no longer associated with the business. The applicant explained that the Mahdi Army wants revenge for his failure to obey them and they have nothing else, only hatred and the desire to kill (or words to that effect). I agree with the delegate that it is not plausible that the Mahdi Army would retain such a strong interest in the applicant for the reasons claimed.

Having regard to all of the information before me, in particular my concerns regarding the applicant’s evidence, including the omission of any reference to matters relating to the Mahdi Army in his account of his reasons for leaving Iraq in his arrival interview, I do not accept that armed members of the Mahdi Army visited the applicant’s shop on multiple occasions to threaten him and demand money, whether motivated by financial gain, anti-western sentiment, sectarian sentiment, or a mixture of these reasons. Neither do I accept that members of the Mahdi Army shot the applicant’s brother and the applicant’s employees in the workshop, damaged the workshop and his family home, and assaulted his sisters as revenge or punishment for his refusal to comply with their demands for money, because of his Sunni faith, or his past work on vehicles owned by the employee of a foreign company. I do not accept that the applicant is of any particular adverse interest to the Mahdi Army, or any other Shia militia group, on the basis of a failure to comply with demands for money, his claimed perceived wealth, or because of his past work on foreign owned vehicles.

17    The IAA then proceeded to make its refugee assessment of the appellant having regard to the statutory criteria. At [80], the IAA concluded that the appellant did not meet the requirements of the definition of a refugee in s 5H(1) of the Act and did not meet the requirements of s 36(2)(a) of the Act. The IAA then moved on to make a complementary protection assessment (at [81]–[90]). It concluded (at [91]) that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to Iraq, there was a real risk that the appellant would suffer significant harm. Therefore, the IAA concluded the appellant did not meet the requirements of s 36(2)(aa).

The Circuit Court’s Decision

18    In light of the appellant’s abandonment of the only ground of appeal relied upon by him in his Notice of Appeal, the decision of the Circuit Court has now become moot. This is because the appellant now wishes to rely upon two new grounds of appeal in this Court by which he seeks to raise matters which were not argued at all before the primary judge. He must obtain leave to rely upon those two new grounds before he will be permitted to do so. He accepts this. For present purposes, it is sufficient to note that the primary judge viewed the single judicial review ground raised before him as raising the two matters which he succinctly identified at [11] of his judgment as follows:

Essentially, the applicant’s argument came down to these two propositions: first, in order to properly fulfil its obligation to review the delegate’s decision, the Authority must intellectually engage with the question of whether an admission made at an arrival interview ought to be forgiven in the circumstances of that arrival interview (“forgiven” in the sense that it is not to be taken as an indication of lack of credibility). Secondly, the Authority ought to consider whether the matters raised at the arrival interview should be construed so as to cover later claims that were made later in the process of an application for a protection visa. He argued, in other words, that what was said at the arrival interview by an applicant in response to questions put to him or her ought to receive a beneficial construction.

19    Having briefly outlined the appellant’s arguments, the primary judge proceeded to address those arguments. At [20], his Honour concluded that, contrary to the appellant’s contentions, the IAA had engaged intellectually with the question whether the appellant’s failure to mention at his arrival interview on 17 March 2013 that one of the reasons he had left Iraq was that he feared harm at the hands of the Mahdi Army ought to be forgiven in all of the circumstances.

20    At [23]–[24], his Honour expressed his ultimate conclusions in the following terms:

In my view, although it is not necessary to come to a determined view about this, it is not as a question of a priori obligation necessary for the Authority to give a so-called beneficial construction to any claim made. What the Authority did here, was to take into account the circumstances in which statements were and were not made, to compare them with claims that were later made and to having considered the difference between both, as well as the circumstances in which the later claims were admitted, come to a view that it did not accept that it was intended at the earlier interview to refer to the later claim. It cannot be questioned that it was open, in the sense of being legally available to the Authority, having considered those matters and having turned its mind to the issues raised by the applicant in support of his contentions, to conclude that the earlier failure by the applicant to raise a significant claim was partly, at least, sufficient to undermine the applicant’s credibility.

For all of those reasons, I consider that the Authority did not fall into any jurisdictional error when it took into account, to some extent, the applicant’s omission to raise a claim concerning the Mahdi Army at the arrival interview that took place on 17 March 2013.

Proposed Grounds of Appeal 2 and 3

21    As I see matters, the appellant’s prospects of success in relation to the two new grounds of appeal will substantially influence the outcome of my consideration as to whether or not the appellant should be granted leave to raise and rely upon those two new grounds of appeal. For this reason, I have decided to address the appellant’s prospects in relation to those two new grounds before finally determining whether I will grant leave to him to raise either or both of those two new grounds.

Appeal Ground 2 – the s 473GB Ground

Some Particular Facts Relevant to the s 473GB Ground

22    On 9 November 2016, the Assistant Director, Temporary Protection Visa Assessment Branch, Delegate of the Minister, issued a certificate pursuant to s 473GB(5) of the Act (certificate). That certificate was forwarded to the IAA on 14 November 2016. In that way, it became part of the “review material” before the IAA (as to which, see s 473CB). The certificate was in the following terms:

NOTIFICATION REGARDING THE DISCLOSURE OF CERTAIN INFORMATION COVERED BY SECTION 473GB OF THE MIGRATION ACT 1958

I notify the Immigration Assessment Authority that section 473GB of the Migration Act 1958 applies to a document or information in the document titled ‘[details partly redacted] Applicant Integrity Form’ contained in PDF Portfolio: [details redacted].

In my view, this document or information should not be disclosed to the referred applicant or the referred applicant’s representative because:

(a)    the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest because it contains information relating to an internal working document and business affairs.

(b)    the document, or any matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence.

The Immigration Assessment Authority’s use and disclosure of a document or information covered by this certificate is subject to subsections 473GB(3) and 473GB(4) of the Migration Act 1958.

This certificate is made pursuant to subsection 473GB(5) of the Migration Act 1958.

[Name and position number redacted]

Assistant Director

Temporary Protection Visa Assessment Branch

Delegate of the Minister for Immigration and Border Protection

Date: 09/11/2016

23    I shall refer to the document specified in the certificate as “the Applicant Integrity Form”. In his submissions, the appellant referred to the certificate and the contents of the Applicant Integrity Form described in the certificate together as “the Protected Information”. In these Reasons, I shall adopt the same nomenclature for that material.

24    The Applicant Integrity Form was in the departmental file and was, for that reason, part of the review material forwarded to the IAA on 14 November 2016. That Form was, therefore, before the IAA at all relevant times during its consideration of the appellant’s case. It had also been before the delegate. The existence of the certificate, the contents of the certificate and the contents of the Applicant Integrity Form were all matters which were not disclosed to the appellant at any time before 21 February 2017 when the IAA’s decision was given. The IAA acknowledged (at [3] of its Decision) that it had had regard to the material referred to it by the Department under s 473CB which description included the Protected Information.

25    The Applicant Integrity Form was referred to and listed as item 9 in the Index to the Court Book tendered as Exhibit A at the hearing in the Circuit Court. It was not reproduced in that Court Book and was not separately tendered in evidence in the Circuit Court. That Court Book is part of the Appeal Book in this Court but the Applicant Integrity Form was not made available to me at the hearing of the appellant’s Appeal.

The Appellant’s Argument (the s 473GB Ground)

26    The appellant argued that the certificate was invalid because it did not comply with the requirements of s 473GB(1)(a) of the Act. Section 473GB(1) is in the following terms:

473GB    Immigration Assessment Authority’s discretion in relation to disclosure of certain information etc.

(1)    This section applies to a document or information if:

(a)    the Minister has certified, under subsection (5), that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 473GA(1)(a) or (b)) that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or

(b)    the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence.

27    The appellant submitted that an assertion that a document “contains information relating to an internal working document and business affairs” could never have sustained a claim for public interest immunity with the consequence that the certificate could not be supported by s 473GB(1)(a) and, for that reason, was invalid. The appellant also argued that the certificate was invalid because it had been drafted in such a manner as to suggest that the separate statutory bases upon which a s 473GB(5) certificate might be supported (viz subpars (a) and (b) of s 473GB(1)) were, in fact, cumulative requirements, a proposition which was erroneous. The appellant did not submit that the validity of the certificate could not be supported by s 473GB(1)(b) if that subsection alone were to be relied upon as the appropriate statutory foundation for the issue of the certificate. It is to be remembered that the author of the certificate stated on the face of the certificate that the Applicant Integrity Form and the contents of that Form had been given to the Minister or an officer of the Department in confidence.

28    Having submitted that the certificate was invalid, the appellant submitted that the invalidity of the certificate enlivened the operation of s 57(2) of the Act thereby requiring the Minister to disclose the contents of the Applicant Integrity Form to the appellant because the contents of that document were “relevant information” and were no longer protected by s 473GB. The appellant next submitted that, having been notified that s 473GB applied to the contents of the Applicant Integrity Form in circumstances where the section did not, in fact, apply, the IAA was required to exercise the discretions reposed in it pursuant to s 473GB(3) reasonably and affirmatively. A reasonable and affirmative exercise of those discretions inevitably required disclosure of the contents of the Applicant Integrity Form to the appellant.

29    Alternatively, the appellant submitted that, upon the true construction of Pt 7AA of the Act, s 473DC was engaged in the circumstances of the present case and, as a consequence, the IAA was required to exercise the discretion reposed in it by s 473DC(3) reasonably and affirmatively. Such an exercise of that discretion would inevitably require the IAA to provide the contents of the Applicant Integrity Form to the appellant and invite him to respond to the information contained in that Form. The IAA failed to provide the contents of that document to the appellant and failed to invite him to respond to those contents. These failures were legally unreasonable and in contravention of s 57(2) of the Act.

30    The appellant submitted that the IAA exercised its discretion under s 473GB(3)(a) by having regard to the contents of the Protected Information without considering whether or not the certificate was valid. Alternatively, the appellant submitted that, in all the circumstances, the IAA proceeded as if the certificate was valid. In support of this latter submission, the appellant relied upon certain observations made by the plurality in BVD17 (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ) at 205 [36].

31    After referring to Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111 (BBS16) at 143–144 [95]–[100], the appellant submitted that it can reasonably be inferred that the observations made by the Full Court (Kenny, Tracey and Griffiths JJ) at 143 [96] implied or contemplated that the IAA would not have regard to information protected by a certificate issued pursuant to s 473GB(1) if the certificate were invalid unless and until the information protected by the certificate has been disclosed to the fast track applicant.

32    The appellant submitted that, in the circumstances of the present case, he suffered practical injustice because the Protected Information had not been disclosed to him; the IAA had had regard to the Protected Information in making its decision; the appellant had not been given an opportunity to advance any argument in light of the Protected Information; and the Protected Information was arguably adverse to his case. This last point was advanced as an inference which the Court should draw.

33    The appellant’s submissions in relation to the s 473GB ground were summarised at [30] of his 2020 Written Submission in the following way:

The appellant concludes that it was legally unreasonable, in the circumstances, for the Authority to exercise the Discretion so as not to disclose the Protected Information to the Appellant considering the invalidity of the certificate, the operation of s57(2) and the exercise of its discretion to have regard to the Protected Information pursuant to s 473GB(3)(a). Consequently, the decision lacks an evident and intelligible justification in circumstances where the Authority knew that it had in its possession Information that is presumably adverse to the Appellant, it had the power to disclose the information and there was statutory power under s57(2) requiring the disclosure of such information.

34    Those submissions were further explained in oral submissions before me when, in Reply, Counsel for the appellant submitted the following (at Transcript 27 ll 10–45):

MS OKEREKE-FISHER: Yes, your Honour. So that’s basically – that ground lives or dies based on the classification there. Then with respect to the – relative to ground 2, the way in which my friend had talked about the two distinct strands is important to clarify the way in which the appellant has framed his case. The appellant is not – the case has not been framed along the lines of procedural fairness obligation. Rather, what the appellant says is that the focus of the case is the exercise – the reasonableness of the exercise or non-exercise of the discretions in 473GB. So the formulation around an unreasonable failure to exercise the discretion favourably is wrong. What the appellant says is that a reasonable exercise of the discretion in 473GB, subsection (3), in face of a valid – of an invalid certificate, would have required disclosure of the protected material.

Another way to look at it is that in the face of an invalid certificate, it was an unreasonable exercise of the discretion in 473GB for the Authority to proceed to exercise the discretion in 473GB(3)(a) and have regard to the protected information in circumstances where the very statutory framework on which it would rely, which is 473GB, has fallen away. So the submission that the appellant is making is that if the certificate is invalid, 473GB does not apply to the document or information, and if that’s the case – and it’s very important to look at the correlation between paragraph 10 of the High Court’s decision in BVD17 and paragraph 96 in BBS16. So where the Full Court says that one of the things that – one of the steps that the Authority has to take before it chooses to exercise the discretion is to actually have regard – not have regard; is to check on the

HIS HONOUR: I think the word is “consider”, isn’t it?

MS OKEREKE-FISHER: Sorry, your Honour.

HIS HONOUR: Consider whether the certificate is valid or invalid.

MS OKEREKE-FISHER: Valid or not. And the question then – and subsequent to that, what the appellant then says is if, upon consideration – upon considering the validity, it finds that the certificate is invalid, it was then an unreasonable exercise of the discretion to proceed as if the certificate was valid. Because it would have relied on the potency of 473GB to exercise the discretion to have regard. So is the having of the regard in the face of an invalid certificate which basically crystallises the error. So this is not a case where the applicant is saying that there was an unreasonable failure to exercise the discretion so as to disclose a certificate. So that’s a clarification that the applicant would like to make with respect to that.

35    Counsel continued in the same vein at Transcript 28 ll 25–35:

MS OKEREKE-FISHER: Yes, your Honour. So that’s why the appellant then says if – putting aside, as accurately as your Honour said – 473GB ceases to apply in the face of an invalid certificate, then there are other provisions within the Act that come into play. 57, subsection (2) obviously, like the appellant did concede, has its own fundamental problems with respect to whether or not it does constitute relevant information. However, what the appellant is then saying is apart from 57, subsection (2), the 473DC, subsection (3) – there is an exercise of discretion that was open to the Authority. Now, with respect to my friend’s submission that that was misconceived, it’s very important to basically explain what the appellant was saying. The appellant was not saying that the protected information is new information for the purpose of 473DC, subsection (3). That’s not the appellant’s submission.

The Minister’s Counter-Arguments (the s 473 GB Ground)

36    In BVD17, at 198 [1]–[2], the plurality said:

… The question of general importance in the present appeal is whether the giving of a notification under s 473GB(2)(a) triggers an equivalent obligation of procedural fairness on the part of the Immigration Assessment Authority (“the Authority”) to disclose the fact of notification to a referred applicant in a review under Pt 7AA.

The short answer is that procedural fairness does not oblige the Authority to disclose the fact of notification under s 473GB(2)(a) to a referred applicant in a review under Pt 7AA. The short reason is that s 473DA precludes such an obligation from arising.

37    Justice Edelman agreed in the result but for different reasons.

38    The s 473GB(5) certificate under consideration in BVD17 was a valid certificate.

39    At [10]–[14] of his Written Submission dated 26 February 2020 (incorrectly dated 26 February 2019) and filed on 27 February 2020, the Minister submitted the following in respect of BVD17:

Section 473CA mandates referral of a fast track reviewable decision to the IAA and, upon that referral, s.473CB requires the Secretary of the Department of Immigration and Border Protection to give the IAA the “review material” (at [4]). Sections 473GA and 473GB qualify the obligation of the Secretary under s.473CB. Section 473GB imposes cumulative obligations and confers supplementary powers on the Secretary and on the IAA in respect of any document to which s.473GB applies (at [5]-[9]). How the IAA conducts a review in accordance with s.473CC is addressed in Division 3 of Part 7AA (at [11]).

Within Division 3 of Part 7AA, s.473DA(1) states that Division 3 is taken to be an exhaustive statement of requirements of the natural justice hearing rule “in relation to reviews conducted by the Immigration Assessment Authority” (at [13]-[14]). The primary obligation of the IAA, pursuant to s.473DB(1), is to consider the review material without accepting or requesting new information or interviewing the applicant. The words “subject to this Part” in s.473DB(1) indicate that the generality of the primary obligation can be qualified by the operation of other provisions within Part 7AA. Those provisions include s.473DC(1), s.473DC(3) and s.473GB (at [15]).

The decision to which s.473EA refers is the ultimate decision of the IAA under s.473CC(2). The IAA is not required to give reasons for the exercise or non-exercise of a procedural power such as those conferred on the IAA by s.473DC(1) or s.473DC(3) (at [16]).

Unlike s.422B(1) and (2) of the Act (in Part 7), the prescription in s.473DA(1) is not framed to confine the exhaustiveness of its operation to the discrete subject matter of the provisions to which it refers. Instead, it extends the exhaustiveness to the “entirety of the performance of the overriding duty imposed on the Authority by s.473CC(1)”. The reasoning in Minister for Immigration and Border Protection v SZMTA (2019) 93 ALJR 252 (SZMTA) in respect of s.422B(1) and (2) has no application to the IAA (at [31]). The entirety of the content of the IAA’s obligation of procedural fairness in the context of notification under s.473GB(2)(a) is “to be found in the outworkings of the discretions conferred on the Authority by s.473GB(3)”. A procedural fairness analysis is not the “lens” through which the content of the procedural obligations imposed on the IAA under Part 7AA is to be determined (at [34]-[35]).

The plurality confirmed that s.473GB provided for the exercise of statutory discretions conferred on the IAA by s.473GB(3)(a) and s.473GB(3)(b). The IAA has no power to have regard to the notified information unless it affirmatively exercises the discretion to have regard to it (s.473GB(3)(a)) and the IAA has no power to disclose the notified information unless the IAA affirmatively exercises the discretion to disclose the information (s.473GB(3)(b)). In respect of the exercise of the discretions, it is not contentious that the discretions are subject to an implied condition that they be exercised reasonably. However, the IAA is under no obligation to give reasons for the exercise or non-exercise of a procedural power. It follows that the “mere failure of the Authority to mention the discretion conferred by s.473GB(3)(b) cannot support the drawing of an inference that the exercise of the discretion was not considered”.

40    The propositions which I have extracted at [39] above were not contentious in the Appeal before me. In any event, I think that they are correct and I accept them.

41    The Minister did not concede that the certificate was invalid. The Minister submitted that the question of whether the certificate was valid or invalid did not need to be answered in the present case.

42    The Minister argued that the reasoning of the High Court in BVD17 makes clear that Pt 7AA is a distinct statutory regime. He submitted that no parallel, or analogous reasoning, can be drawn from Pt 5 or Pt 7 of the Act or the authorities which have considered those Parts of the Act. This is why, so the Minister submitted, the High Court in BVD17 concluded that its reasoning in Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 (SZMTA), in respect of s 438 of the Act, had no application to s 473GB or Pt 7AA. The Minister argued before me that this conclusion is entirely consistent with the decision of the Full Court in BBS16. In that case, the Full Court rejected the argument that the decision of Beach J in MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1 has any application to Pt 7AA of the Act.

43    Accordingly, so the Minister submitted, the effect of an invalid s 473GB(5) certificate falls to be considered solely within the restricted statutory scheme of Pt 7AA of the Act.

44    The Minister next contended that the decision in BVD17 also makes clear that the IAA is under no obligation to inform an applicant about the existence of a s 473GB(5) certificate. That is, the IAA has no obligation to inform a referred applicant that it has been notified by the Minister about a document or documents pursuant to s 473GB(1) and (5). This proposition holds good whether the certificate is valid or invalid. So much follows from the statements of principle and the observations made by the Full Court at 141–144 [85]–[101] in BBS16. BBS16 involved an invalid certificate.

45    The Minister next contended that it followed from the above submissions that, in the present case, the IAA was under no obligation or duty to inform the appellant of the existence of the certificate or the substance of the notification that it conveyed (or, by extension, the contents of the Applicant Integrity Form). The fact that no disclosure of any of the Protected Information was made did not constitute any error on the part of the IAA.

46    The Minister next argued that, within the constrained framework of Pt 7AA, there is no scope to appeal to and rely upon other Parts of Div 3 of Pt 7AA (for example, s 473DC(3) in respect of a document which is subject to a s 473DB(5) certificate). In BVD17 (at 205 [35]), the plurality made clear that the entirety of the IAA’s obligation of procedural fairness in respect of a s 473GB(5) certificate is to be found in the “outworking of the discretions conferred on the [IAA] by s 473GB(3)”. The Minister submitted that those discretions relevantly conditioned whether the IAA will have regard to the documents and whether the IAA will disclose the documents to the referred applicant. There is no room in the Pt 7AA statutory scheme to read the certificate or the information to which it relates as “new information”. For that reason, reliance upon s 473DC(3) or s 473DE of the Act is foreclosed.

47    In BVD17, the High Court also confirmed that there is no obligation on the part of the IAA to provide reasons in respect of any procedural decision, including a decision to exercise or not exercise the discretions conferred upon it by s 473GB(3). That circumstance affects the nature of the inferences that may be permissibly drawn when the IAA states reasons or when it does not state reasons (see DKF17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1963 at [15]–[19] per Thawley J). It follows that the mere failure of the IAA to mention the discretion conferred by s 473GB(3)(b) cannot support any inference that the exercise of that discretion was not considered (see the judgment of the plurality in BVD17 at 206 [39]–[40]). In the present case, so the Minister submitted, the IAA made no reference to the contents of the certificate or the contents of the Applicant Integrity Form. The appellant can draw no inference or any comfort from those facts. In particular, the Minister submitted that the appellant can draw no inference, in the absence of any other facts, to the effect that the IAA’s exercise or non-exercise of the procedural power in s 473GB(3) was unreasonable.

48    The Minister also contended that, even if it be the case that the IAA was required to consider whether or not the certificate is valid or invalid, no relevant inference supportive of the appellant’s submissions can be drawn from the IAA’s reasons in the present case. In particular, the mere fact that a certificate is valid or invalid, in the present circumstances, does not permit any inference as to unreasonableness, including whether the information was adverse or, indeed, whether the IAA had regard to it at all.

49    It is trite law that the onus remains on the applicant for judicial review to establish the facts upon which a claim for relief is founded (see BVD17 at 205 [38] in the judgment of the plurality). In the present case, there is insufficient evidence to support the inference urged upon the Court by the appellant.

Analysis and Decision (the s 473GB Ground)

50    The first step in the appellant’s argument in support of this ground is the proposition that the certificate was invalid. I have endeavoured to capture the appellant’s submissions as to why this is so at [27]–[28] above.

51    Section 473GB(1) makes clear that there are alternative bases upon which the Minister may legitimately issue a certificate under that section. The first is the public interest immunity basis essentially embodied in s 473GB(1)(a) and the other is the confidentiality basis embodied in s 473GB(1)(b). This much is clear from the use of the word “or” between the two subparagraphs of s 473GB(1).

52    Although the bases for the issue of a s 473GB certificate as specified in s 473GB(1) are alternative and not cumulative, the Minister may nonetheless rely upon both these bases in any given certificate issued by him. In the present case, in my view, that is what he did. In other words, in the present case, the Minister relied upon the public interest immunity basis as well as the confidentiality basis. The appellant addressed his submissions to the former but not the latter although the appellant did make a submission that the Minister had misunderstood s 473GB(1) by approaching the issue of the certificate upon the basis that the requirements in subpars (a) and (b) of that subsection were cumulative.

53    The appellant correctly submitted that the certificate could not be sustained upon the public interest immunity basis. In my view, however, that is not the end of the matter. For the reasons already explained, I think the Minister was also entitled to rely upon the confidentiality basis. That being so, for the appellant to successfully contend that the certificate was invalid, he would need to establish that the claimed confidentiality basis was not sustainable. The appellant did not undertake that burden. There is no material before me which would support the proposition that the certificate is invalid because the Applicant Integrity Form and the information contained therein were not provided to the Minister in confidence within the meaning of s 473GB(1)(b).

54    For the above reasons, I do not think that the appellant has made good his proposition that the certificate was invalid.

55    The Minister did not concede that the certificate was invalid. Rather, he submitted that it did not matter whether the certificate was valid or invalid in the present case. He went on to submit that, whether or not the certificate was invalid, the s 473GB ground should be rejected in any event.

56    At 203 [28] in BVD17, the plurality identified the substance of BVD17’s argument as follows:

The thrust of the appellant’s argument at the hearing of the appeal was that the reasoning in SZMTA concerning the operation of s 438(2)(a) to give rise to an obligation of procedural fairness within the scheme of Pt 7 is transferable to the operation of s 473GB(2)(a) within the scheme of Pt 7AA. The Minister, as first respondent to the appeal, relied on the differences between the two schemes emphasised in earlier reasoning of the Full Court of the Federal Court in Minister for Immigration and Border Protection v BBS16 [(2017) 257 FCR 111; 158 ALD 198; [2017] FCAFC 1786 (BBS16)].

57    Then, at 203 [29], the plurality expressed its conclusion in respect of that argument in the following terms:

Identification of the incidents of the Authority’s obligation to afford procedural fairness in the conduct of a review under Pt 7AA necessarily begins with the prescription in s 473DA(1) that Div 3, together with ss 473GA and 473GB, “is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the [Authority]”. For reasons which will become apparent, that prescription is alone sufficient to preclude an obligation of procedural fairness on the part of the Authority to disclose the fact of notification under s 473GB(2)(a) to a referred applicant. Whether such an obligation would arise as an incident of the Authority's obligation to afford procedural fairness within the scheme of Pt 7AA were it not for the prescription in s 473DA(1) need not be explored.

58    At 203 [30] in BVD17, the plurality adverted to some parallels between s 422B(1) and (2) and s 473DA(1) of the Act. Then, at 203–204 [31], the plurality adverted to some differences between Pt 7 of the Act and Pt 7AA of the Act as follows:

Unlike the prescriptions in s 422B(1) and (2) as interpreted in SZMTA [At [35]-[37]. See also WAJR v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 624; 80 ALD 435; [2004] FCA 106 at [57]; Minister for Immigration and Citizenship v SZMOK (2009) 247 FCR 404; 257 ALR 427; 110 ALD 15; [2009] FCAFC 83 at [9]], however, the prescription in s 473DA(1) is not framed to confine the exhaustiveness of its operation, in defining the content of the obligation to afford procedural fairness which it acknowledges, to the discrete subject matters of the provisions to which it refers. Instead, it extends the exhaustiveness of its operation, in defining the content of the Authority's obligation to afford procedural fairness, to the entirety of the performance of the overriding duty imposed on the Authority by s 473CC(1) to review a fast track reviewable decision referred to it under s 473CA. The reasoning in SZMTA [At [27]-[37]], that an incident of the obligation of procedural fairness which conditions performance of the overriding duty of the Tribunal to conduct a review under Pt 7 can arise outside the scope of the discrete subject matters of the provisions to which s 422B(1) and (2) refer, can therefore have no application to the Authority.

59    At 204 [32], the plurality addressed the appellant’s arguments in a little more detail. At 204–205 [33]–[36], the plurality dealt with those arguments as follows:

The argument would deprive s 473DA(1) of any meaningful operation. It cannot be accepted. The evident purpose of s 473DA(1) in prescribing that the provisions to which it refers are to be taken to be an “exhaustive statement of the requirements of the natural justice hearing rule” is to require that those provisions be construed as a codification of the incidents of the Authority's acknowledged obligation of procedural fairness. The prescription does not preclude all implications. Importantly, it does not preclude an implication that a statutory power within the provisions to which s 473DA(1) refers must be exercised only within the bounds of legal reasonableness. What the prescription does preclude is an incident of the Authority’s obligation of procedural fairness arising as a matter of implication through the application of the common law principle of statutory interpretation according to which, where the exercise of a power or the performance of a duty is conditioned by a requirement to afford procedural fairness, "regard must be had to the circumstances of the particular case to ascertain what is needed to satisfy the condition" with the result that “[i]t is not possible precisely and exhaustively to state what the repository of a statutory power must always do to satisfy [the] condition” [Kioa v West at CLR 611; ALR 367. See also at CLR 585].

The consequence of the codifying effect of s 473DA(1) was correctly stated by the Full Court of the Federal Court constituted by Robertson, Murphy and Kerr JJ in Minister for Immigration and Border Protection v CRY16 [(2017) 253 FCR 475; [2017] FCAFC 210 at [67]] and in Minister for Immigration and Border Protection v DZU16 [(2018) 253 FCR 526; 357 ALR 474; [2018] FCAFC 32 at [99]]. The consequence is that, except to the extent that procedural unfairness overlaps with legal unreasonableness, procedural fairness analysis is not the “lens” through which the content of the procedural obligations imposed on the Authority in the conduct of a review under Pt 7AA is to be determined.

Consistent with the earlier conclusion of the Full Court in BBS16 [At [100]], the entirety of the content of the Authority’s obligation of procedural fairness in the context of a notification under s 473GB(2)(a) is to be found in the outworking of the discretions conferred on the Authority by s 473GB(3). Section 473DA(1) leaves no room for an additional obligation of disclosure to arise in the manner recognised in SZMTA.

For completeness, the overlapping operation of s 473DA(2) in the circumstances giving rise to the present appeal is also to be noted. The prescription in s 473DA(2), it will be recalled, is to the effect that nothing in Pt 7AA requires the Authority to give to a referred applicant any material that was before the Minister when making the decision under s 65. There might be circumstances in which the prescription would not prevent the Authority being required to provide material that was before the Minister to a referred applicant as an incident of a legally reasonable exercise of the discretion conferred on it by s 473DC(3) [Plaintiff M174/2016 at [49], [97]]. Similarly, there might be circumstances in which the prescription would not prevent the Authority being required to provide such material to a referred applicant as a consequence of a legally reasonable exercise of the discretion conferred on it by s 473GB(3)(b). However, the prescription does operate to preclude an obligation on the part of the Authority to give such material to a referred applicant from otherwise arising as a matter of implication.

60    The plurality then turned to deal with a challenge to the Full Court’s conclusion in BVD17 that there was insufficient evidence from which to infer that the IAA failed to consider exercising the discretion conferred upon it by s 473GB(3)(b). The plurality observed (at 205 [38]) that it is the plaintiff in an application for judicial review of administrative action who has the onus of establishing on the balance of probabilities the facts on which a claim to relief is founded. The plurality continued (at 205 [38]):

… To the extent that the factual basis for a claim to relief is sought to be founded on an inference to be drawn from a decision-maker’s statement of reasons, the appropriateness of drawing the inference falls to be evaluated having regard to two settled principles. One is that such a statement of reasons must be read fairly and not in an unduly critical manner [Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; 136 ALR 481; 41 ALD 1]. The other is that it must be read in light of the content of the statutory obligation pursuant to which it was prepared [SZGUR at [32], [70], [91]-[92]].

61    At 206 [40], the plurality stated its conclusion in respect of the appellant’s argument based upon discretion in the following terms:

Given that the Authority was under no obligation to give reasons for its exercise or non-exercise of any procedural power, the mere failure of the Authority to mention the discretion conferred by s 473GB(3)(b) cannot support the drawing of an inference that the exercise of the discretion was not considered. The Authority’s specific reference to taking particular country information into account as “new information”, thereby indicating an exercise of discretion under s 473DC(1), lends no added support to the drawing of the inference. Having been before the delegate at the time of the decision under review, the information contained in the documents in the departmental file did not meet the description of “new information”. The Authority’s reference to one statutory power having been exercised in respect of one category of information cannot be taken to indicate that the Authority failed to consider the exercise of another statutory power in respect of another category of information.

62    The following propositions may be taken from BVD17:

(a)    The statutory scheme in Pt 7AA of the Act does not provide for any obligation of procedural fairness on the part of the IAA to disclose the fact that the Minister has issued and forwarded to it a certificate under s 473GB of the Act;

(b)    The entirety of the content of the IAA’s obligation of procedural fairness in the context of the issue and forwarding of a s 473GB certificate to the IAA is to be found in the outworking of the discretions conferred on the IAA by s 473GB(3);

(c)    Section 473DA(1) of the Act leaves no room for an additional obligation of disclosure to arise in the manner recognised by the High Court in SZMTA; and

(d)    The discretionary powers reposed in the IAA by s 473GB(3) are subject to an implied obligation to exercise those powers reasonably.

63    The Minister submitted that the IAA was permitted to consider exercising the discretions reposed in it by s 473GB(3) whether or not the certificate forwarded to it is valid or invalid. In either event, so the Minister submitted, the way in which the IAA must address the issue is through the procedural discretions contained within s 473GB(3). This submission cannot now be accepted in its entirety in light of the observations made by the plurality (Gageler, Keane, Nettle and Gordon JJ) at [11]–[13] in Minister for Immigration and Border Protection v CED16 [2020] HCA 24 (CED16) to the following effect:

The first respondent had sought leave at the hearing of the appeal to the Federal Court to rely on proposed grounds of appeal formulated in terms differing from the grounds on which he had relied in the application before Judge Street. In his reasons for judgment delivered in September 2018, Derrington J granted the first respondent leave to rely on just one of those proposed grounds of appeal. The ground of appeal on which his Honour then granted leave was formulated in terms that the decision of the Authority “was affected by jurisdictional error because the statutory condition required to enliven the discretionary powers under s 473GB(3)(a) and (b) had not been met”. As the ground was particularised by the first respondent, the statutory pre-condition in s 473GB(2)(a) to the enlivening of the powers conferred by s 473GB(3)(a) and (b) had not been met “because the Certificate was invalid, it not having been issued for the purposes of s 473GB(1)”.

The Minister for his part had conceded at the hearing of the appeal to the Federal Court that the Certificate was invalid. The concession was well made. The reason specified in the Certificate, that the Identity Assessment Form was a “Departmental working document”, was plainly an insufficient basis for “a claim by the Crown in right of the Commonwealth in a judicial proceeding” that information or matter contained in the Identity Assessment Form “should not be disclosed”. The Certificate therefore failed to meet the description in s 473GB(1)(a), as a consequence of which the whole of s 473GB (including the duty imposed on the Secretary by s 473GB(2)(a) and the powers conferred on the Authority by s 473GB(3)(a) and (b)) simply had no application to the Identity Assessment Form.

To determine the appeal on the sole ground of appeal on which his Honour ultimately granted the first respondent leave to rely, Derrington J was accordingly required to turn his attention to the effect on the decision of the Authority of the non-enlivening of the powers conferred by s 473GB(3)(a) and (b). …

64    I have held that the certificate is valid. Nonetheless, in the present case, it does not matter whether the certificate is valid or invalid. Even if the certificate is invalid, there is no room for the engagement of s 57 or s 473DA in the manner relied upon by the appellant. In any event, given that the Applicant Integrity Form is not before the Court, there is no basis upon which I could conclude it contained “relevant information” within the meaning of s 57.

65    The appellant’s resort to s 473DC is misconceived. The Full Court made clear at 142 [92] in BBS16 that neither the certificate nor the information protected by the certificate is “new information” within the meaning of that section (as to which, see Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 (M174) at 228 [24]; SZMTA at 440 [28]; and CED at [20]–[23] per Gageler, Keane, Nettle and Gordon JJ and at [28]–[30] per Edelman J).

66    At 143 [95]–[97] in BBS16, the Full Court said:

Where the Secretary gives such a document or information to the IAA in compliance with the Act the Secretary must notify the IAA that s 473GB applies (s 473GB(2)). The Secretary also has a discretion to give the IAA any written advice that the Secretary thinks relevant about the significance of the document or information. Sub-section 473GB(3) is important. It deals with the circumstances where the IAA is given a document or information and is notified (by the Secretary) that s 473GB applies. In those circumstances the IAA has two separate discretionary powers to consider, namely:

(a)    whether to have regard to any matter contained in the document or to the information; and

(b)    if it thinks it appropriate, having regard to any advice given to the Secretary under s 473GB(2)(b), to disclose to the referred applicant any matter contained in the document or the information.

Fourthly, having regard to the statutory regime in Pt 7AA, and s 473GB in particular, if the IAA is given a s 473GB certificate/notification and related information, it is a matter for the IAA to consider whether or not it will have regard to any matter contained in that material. One of the things which the IAA will need to consider in determining whether or not it should exercise that power is whether it considers that the certificate/notification is valid or not. If the IAA determines to have regard to any such material, it then must turn its mind to whether it thinks it appropriate to disclose any matter contained in the material to the referred applicant. In making that decision the IAA must have regard to any advice given to it by the Secretary under s 473GB(2)(b).

The scheme of Pt 7AA is such that the only opportunity which a referred applicant will get to comment on such material is if the IAA decides for itself to disclose the material to the applicant prior to it making a decision on the review. The regime does not create any duty on the part of the IAA (or any entitlement on the part of the referred applicant) to be involved in the IAA’s determinations as to whether the certificate/notification is valid or not, nor whether the IAA should accept or reject any written advice provided to it by the Secretary under s 473GB(2)(b). For completeness, it might be noted that, if in the exercise of its discretion, the IAA decides to disclose some material to the referred applicant under s 473GB(3)(b), the IAA must give a direction under s 473GD concerning restrictions on the publication of the relevant material or its further disclosure (s 473GB(4)).

67    In the present case, the appellant contended that the existence of the certificate, the certificate itself and the information protected by the certificate should have been disclosed by the IAA to the appellant and that the IAA’s failure to do so was legally unreasonable. That is, although the IAA was under no duty to disclose the certificate or the information protected by it to the appellant, in the circumstances of the present case, its failure to do so was an exercise of a discretion reposed in it by s 473GB(3)(b) of the Act which was unreasonable. In my view, however, the appellant is simply not in a position to make good his claim of unreasonableness.

68    In BVD17, the documents and information which were the subject of the certificate had not been put into evidence. For that reason, the appellant abandoned his contention that, even if the IAA had considered exercising the discretion bestowed upon it by s 473GB(3)(b), its failure to exercise the discretion to disclose the documents and information to the appellant was legally unreasonable. The appellant in BVD17 gave up this contention because the weight reasonably able to be given to the confidential quality of the documents and information could not be assessed because the documents and information had not been put into evidence. See the judgment of the plurality at 202–203 [27]–[28].

69    In the present case, the Applicant Integrity Form was not put into evidence in the Circuit Court or in this Court. It was referred to in the Court Book in the Circuit Court but not reproduced in that Court Book. In those circumstances, as was the case in BVD17, the Court is not able to assess the confidential quality of the Applicant Integrity Form nor the information contained in it and is not able to assess whether, in the event that the s 473GB(3)(b) discretion had been engaged, the failure on the part of the IAA to disclose the certificate and the information contained in the Applicant Integrity Form was legally unreasonable.

70    In the present case, the appellant has not been able to identify any basis upon which the conclusion of legal unreasonableness urged by him upon the Court can be sustained. The mere fact that the IAA did not make specific reference to the certificate or the Applicant Integrity Form in its decision does not provide any information as to the IAA’s consideration of the s 473GB(3) discretions.

71    The Minister also submitted that, in order to satisfy the Court that the IAA had been guilty of jurisdictional error, the appellant has to demonstrate that the error was “material” (as to which, see Hossain v Minister for Immigration and Border Protection (2019) 264 CLR 123 and SZMTA). The Minister submitted that, in the present case, the appellant cannot demonstrate anything. He cannot demonstrate that the subject matter of the certificate was adverse to the appellant or that the IAA took it into account in some fashion adverse to the interests of the appellant. In addition, the Minister argued that the current relevant test is one of “materiality” and not “practical injustice” as submitted by the appellant.

72    For all the above reasons, and also for the reasons submitted by the Minister (which I accept save for the submission addressed by me at [63] above), I am of the opinion that the appellant has no prospect of succeeding on the s 473GB ground were I to grant leave to him to amend his Notice of Appeal to raise that ground.

Appeal Ground 3 – the s 473DD Ground

The Appellant’s Argument (the s 473DD Ground)

73    At the heart of the appellant’s arguments in support of this ground is the proposition that the IAA dealt with material in a submission dated 18 December 2016 made by the appellant’s representative to the IAA (the December 2016 submission) inconsistently.

74    The IAA addressed the December 2016 submission to some extent at [4]–[9] of its decision. These paragraphs have been extracted in full at [14] above. At [5], the IAA identified three items of new information contained in the December 2016 submission which it considered was “new information”. At [9], the IAA concluded that it was not satisfied that there were exceptional circumstances to justify its considering the new information.

75    The appellant appears to accept the correctness of the IAA’s reasoning and decision set out at [4]–[9] of its decision. Indeed, the appellant seems to rely upon those passages as the first plank in his argument that, in later paragraphs of its decision, the IAA erroneously characterised other material in the December 2016 submission as “argument” and took it into account in making its decision when it should have treated that material as “new information” to which it should not have had any regard. The appellant submitted that, in this way, the IAA had misunderstood s 473DC and s 473DD of the Act and applied those sections inconsistently to material in the December 2016 submission.

76    The appellant identified certain passages in the December 2016 submission which he contended constituted “new information” (and not merely “argument”). Those passages were:

(a)    Applicant confirm that he did not mention that the militias requested that he pay 2000 to 3000, and that it may be attributed to some interpretation mistakes because the interpreter who helped him in his statement writing was on the phone and there was clear difficulty in understanding the interpreter, he also maintain that Racs [Refugee Advice and Casework Service] may put the wrong figures in his statement because he did not mention that it was what the militia requested.

(b)    The applicant maintain that the shia militia requested that he pay money in attempt to humiliate the applicant and to provoke the applicant because he is a Sunni Muslim, the request of money was for this purpose only as the applicant believe, their need to his money is secondary motive, he was requested to pay money because they know in advance that he was Sunni person and that this is the way to provoke and intimidate him, it is like saying that you are Sunni and you have to pay for us to fight Sunnis, we will fight them with your money, so it was a sign of intimidation nothing more, nothing less.

(c)    The applicant maintain that his father was the person who told him about the rape of his sisters [names deleted], and not the brother, he attribute this error to the phone interpreter while Racs were taking his statement, he maintain that it was very difficult for him to hear the interpreter, therefore, the error may resulted from the incorrect conveying of the words.

77    As to the passage cited at [76(a)] above, the appellant contended that that was clarifying (but new) information. As to the information extracted at [76(b)] and [76(c)] above, the appellant argued that this information was new and had not been before the IAA and was required to be dealt with in the same fashion as the three items of new information referred to at [5] of the IAA’s decision.

78    The appellant then pointed to [31], [32], [33], [34], [40], [41], and [44] of the IAA’s decision and submitted that the material referred to in those paragraphs based upon the material set out at [76] above extracted from the December 2016 submission constituted “new information” within the meaning of s 473DD of the Act (as to which, see s 473DC, M174 and CED16).

79    At [16] above, I have extracted [38]–[44] of the IAA’s decision. I now set out [31]–[38] of that decision:

During the TPV interview the applicant claimed that members of the Mahdi Army came to his workshop on five to seven occasions. They asked him to pay a sum of money regularly to help them fight the ‘pigs’ (or infidels). The amount of money was not discussed. Despite prompting from the delegate, the applicant was not able to recall in which months when these visits started or occurred, other than to indicate that they occurred ‘before the beginning of the new year’ and before the claimed events of 25 January 2013. He indicated that the visits occurred ‘once a month, twice a month, sometimes three times a month’. He said that sometimes three or four men came, but usually it was five men. When he refused to pay the men from the Mahdi Army money, they asked the applicant why he didn’t support them. The applicant replied that he didn’t support anyone. The members of the Mahdi Army didn’t say anything to this, but regarded him with hatred and the applicant felt they would return to seek revenge.

In the entry interview of 31 March 2013, the applicant said that the Mahdi Army ‘kept coming for money’ to help them fight people who didn’t support Islam. They threatened that if he didn’t give them money, it wouldn’t be good for him. In his TPV application the applicant said seven to eight visits occurred starting in 2012. He claimed that the men who visited his workshop said that he had to start paying because he was an infidel and they asked for USD $2,000 to 30,000.

There is clearly a typographical error in the amount referred to in the applicant’s TPV application, nevertheless, the reference to a specific sum is inconsistent with the applicant’s claim in his TPV interview that no amount was discussed. In a submission to the IAA, the applicant’s current representative advised that the applicant claims that the mention of this, or any, figure in the statement accompanying his TPV application may be an error of interpretation as the applicant did not mention that this was what the militia had requested. The applicant’s representative submits that the applicant advised his then representative that he earned these amounts and the interpreter must have been confused and mistakenly written in the applicant’s statement that the Mahdi Army asked the applicant to pay these amounts.

While it is not implausible that there might be an error in the transcription or interpretation of figures, I consider that it is implausible that the interpreter would have included figures in a context where there had been no mention of any figures or specific sums of money. The applicant signed a declaration in his TPV application to confirm that the information provided in the application was complete, correct and up-to-date in every detail. I note that the application was completed with the assistance of a representative. I do not accept that the information regarding the sum of money demanded by the Mahdi Army was included by the interpreter in the applicant’s statement in his TPV application in error.

There are some differences in the applicant’s account of his feelings in relation to the visits of the Mahdi Army and their demands for money. In his entry interview of 31 March 2013 the applicant claimed that he did not take the multiple visits of the Mahdi Army seriously. In his TPV application the applicant said he did not approach the police for help after being visited by the Mahdi Army because members of the Mahdi Army are in the police and he was afraid the police would not help him. When asked by the delegate during the TPV interview why he did not take the Mahdi Army’s visits seriously, the applicant said he did not imagine that things would reach that level and he thought that it was just verbal communication.

The applicant has claimed he was afraid of the Mahdi Army, that he had heard they killed people, and that he believed they were extremely powerful. He claimed in his TPV interview that the members of the Mahdi Army were armed when they visited his workshop. I find it hard to accept that the applicant would not take repeated threatening visits of armed men from the Mahdi Army seriously.

The applicant claimed in his TPV interview that he did not know whether the Mahdi Army had approached any other workshop owners in the neighbourhood, which he described as made up of other mechanical repair shops, including some businesses owned by other Sunnis. I consider this claim to be somewhat implausible.

I accept that Mahdi Army has been involved in extortion and requests for payment for protection, however, having regard to the vague, inconsistent and implausible nature of important aspects of the applicant’s evidence relating to the claimed visits of the Mahdi Army to his workshop, I do not accept that the applicant was the victim of such demands.

80    The appellant then submitted that, having regard to the conclusion expressed by the IAA at [9] of its decision, it was not open to the IAA to have regard to the information contained in any of [31]–[44] of its decision which was based upon the material extracted at [76] above. He argued that that information was “new information” not merely “arguments”. The appellant submitted that this constituted impermissible cherrypicking. The appellant went on to submit that, by having regard to the material in those paragraphs, the IAA committed jurisdictional error.

The Minister’s Counter-Arguments (the s 473DD Ground)

81    The Minister submitted that, in Minister for Immigration and Border Protection v CLV16 (2018) 260 FCR 482 (CLV16), the Full Court (Flick, Griffiths and Perry JJ) made clear that the terms of s 473DC and s 473DD (and, indeed, Pt 7AA more generally) do not prevent an applicant from making, or the IAA from receiving, a submission. Bearing in mind the definition of “new information” in s 473DC(1), it will not always be a straightforward task to identify what is a “submission” as distinct from “new information”.

82    In the December 2016 submission, the appellant sought to comment on, and provide an explanation for, potential inconsistencies arising from the “established pool of factual information” before the IAA constituted by the review material (as to which, see 494 [54] in CLV16). In particular, the appellant was concerned to address a number of inconsistencies between multiple versions of his claims for protection. The Minister submitted that the matters raised by the appellant in the December 2016 submission, and considered by the IAA, did not involve any change to the factual framework but rather an argument as to the significance of a number of alleged inconsistencies.

83    The Minister also submitted that, even if it were to be accepted that the IAA had considered new information without assessing whether s 473DD allowed it to do so, the appellant must nonetheless establish that any such error was jurisdictional. The Minister submitted that there were two reasons why the appellant could not do so in the present case. The Minister set out those reasons at [27] and [28] of his Written Submission in the following terms:

First, even if [31] and [44] of the Decision involved consideration of new information it would not follow that the IAA’s rejection of other information in accordance with s.473DD was erroneous. They are conceptually distinct and it is apparent that the appellant raises no claim that the IAA’s rejection of the other information (at [4]-[9] of the Decision) was erroneous. Put another way, an error in misidentifying something as a submission when it is in fact new information has no logical bearing on whether in respect of different information the IAA made an error in failing to allow such information to be considered.

Secondly, the error itself worked in favour of the appellant. He was given an opportunity to present an explanation for an inconsistency that, on the appellant’s own argument, he would otherwise have been prevented from relying on. In the absence of the error, all that would have been before the IAA was the inconsistency. It is difficult to see how the error could have been material in such circumstances.

Analysis and Decision (the s 473DD Ground)

84    The appellant accepts that the IAA was correct when it treated the three items of information described by it at [5] of its decision as “new information” within sub-Div C of Div 3 of Pt 7AA of the Act. The appellant also accepts that the IAA correctly dealt with that “new information” by declining to consider it.

85    The complaint made by the appellant is that, in later paragraphs of its decision, it treated material that was truly “new information” as “submission” or “argument” and then had regard to that material in making its decision. Because it treated that material as “submission” or “argument”, it did not approach the question of whether it could and should take into account that material by reference to the requirements of s 473DD.

86    It is true that the IAA referred to the December 2016 submission at [33] of its decision and adverted to the assertion in that submission that the inconsistency highlighted at [31] and [32] in respect of the mention of money may have been an interpretation error. At [34], the IAA said that it did not accept that contention.

87    Quite clearly, the IAA regarded that material in the December 2016 submission as “argument” or “submission”. In my view, this was the correct characterisation of that material. In any event, the IAA entertained that “argument” or “submission” being advanced on behalf of the appellant before rejecting it. In the circumstances, the IAA committed no error in doing so. In particular, it committed no jurisdictional error in doing so.

88    At [41] of the IAA’s decision, the IAA considered the argument advanced in the December 2016 submission that the inconsistency between versions given by the appellant as to who it was who conveyed to him that his sisters had been assaulted was also an interpretation error. Again, the IAA considered that submission but rejected it for the reasons explained at [41].

89    In addition to the above matters, I am also of the opinion that the submissions made by the Minister at [27] and [28] of his Written Submission which I have extracted at [83] above are correct. The consequence of this is that, even if I am wrong in the conclusions which I have expressed at [87]–[88] above, the s 473DD ground is bound to fail in any event.

The Appellant’s Application for Leave to Amend his Notice of Appeal

90    It was common ground at the hearing before me that the appellant required the leave of the Court to raise the proposed two new grounds of appeal. The appellant argued that, in the present case, there was discernible jurisdictional error and that the grant of leave would not cause any prejudice to the Minister.

91    The only explanation advanced on behalf of the appellant of the circumstance that neither of the proposed new grounds was raised in the Circuit Court was that “new Counsel has approached the appeal from a different perspective”. I do not consider this to be a weighty consideration in the circumstances of the present case. After all, the appellant had been represented by Counsel at the hearing in the Circuit Court. The appellant submitted that the relevant test was that the Court should grant leave if it is expedient and in the interests of justice for arguments which were not before the primary judge to be considered for the first time on appeal. He also submitted that the potential prejudice to the appellant outweighs the administrative and costs prejudice which the Minister might suffer.

92    After referring to the relevant authorities which are referred to in the parties’ Written Submissions, the Minister submitted the following:

(a)    The circumstances in which this Court will allow a party to rely on a new argument that he failed to put below will be exceptional.

(b)    The merit of any proposed ground is a relevant factor but is not determinative; were it to be so then the grant of leave would be rendered otiose or formulaic. There is a balance between the other relevant factors such as conduct and prejudice and the merits of any ground; the weaker the ground the greater the need for the other factors to be favourable to the appellant.

(c)    The assessment of whether a ground has merit is “impressionistic”; a proposed ground must be sufficiently arguable so as not to be fanciful, illogical, devoid of merit or impermissible and to be such that it is appropriate to hear full argument.

(d)    This Court exercises appellate jurisdiction, not original jurisdiction and the Court should not ordinarily determine matters that should have been considered and determined at first instance: see also Kassem v Minister for Home Affairs [2019] FCA 244 at [20]. The first respondent will also lose one tier of appeal.

93    In my view, the appellant has provided no satisfactory explanation as to why these proposed two new grounds of appeal were not litigated in the Circuit Court. In addition, I place some weight upon the circumstance that to allow the appellant to rely upon those grounds now would remove from the present dispute one layer of appeal. However, to my mind, the most important consideration in the present case is the lack of merit in either of the proposed new grounds. For the reasons which I have explained in detail above, I consider that neither ground has any merit. Accordingly, I propose to refuse leave to the appellant to raise the proposed new grounds of appeal.

Conclusions

94    The appellant has abandoned Ground 1 in his Notice of Appeal. I have refused him leave to raise proposed Grounds 2 and 3. It follows that, not only must his application for leave to amend his Notice of Appeal be refused, but his Appeal must also be dismissed. Costs should follow the event.

95    There will be orders accordingly.

Associate:

Dated:    29 July 2020