Federal Court of Australia

BVZ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1803

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is allowed;

2.    The orders of the Federal Circuit Court (the FCC) made on 29 October 2019 are set aside.

3.    A writ of certiorari be issued quashing the affirmation by the Immigration Assessment Authority (the IAA) on 3 November 2017 of the decision of the Minister’s delegate to refuse the Appellant’s application for a Safe Haven Enterprise Visa.

4.    The matter be remitted to the IAA so that another member may undertake the review required by s 473CC of the Migration Act 1958 (Cth) in accordance with law.

5.    The First Respondent is to pay the Appellant’s costs of and incidental to the appeal to this Court and of and incidental to the judicial review proceedings in the FCC.

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

REASONS FOR JUDGMENT

WHITE J:

1    The appellant appeals from a decision of the Federal Circuit Court (the FCC) dismissing his application for judicial review of a decision of the Immigration Assessment Authority (the IAA).

2    The appellant, a national of Sri Lanka, arrived at Christmas Island on 27 August 2012. He was an unauthorised maritime arrival, as defined in s 5AA of the Migration Act 1958 (Cth) (the Act).

3    On the lifting of the bar, the appellant applied for a Safe Haven Enterprise Visa (SHEV) on 20 August 2015. That application was refused by the Minister’s delegate on 3 May 2016 and the refusal was affirmed on review by the IAA on 16 June 2016.

4    The appellant then commenced judicial review proceedings and, while unsuccessful in the FCC (BVZ16 v Minister for Immigration [2017] FCCA 775), his appeal to this Court succeeded: BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958; (2017) 254 FCR 221. The matter returned to the IAA for the review of the delegate’s decision to be conducted in accordance with law.

5    On its further consideration, the IAA again affirmed the decision of the delegate. The appellant’s application for judicial review of the second IAA decision was unsuccessful: BVZ16 v Minister for Immigration [2019] FCCA 3641. The present appeal is brought against that decision.

6    The IAA decision to which I refer in these reasons is the second IAA decision.

7    The appellant’s Notice of Appeal contained two grounds but the appellant pursued only the first. I will refer to the detail of this ground shortly but note that it concerns the question of whether the IAA member properly understood and/or applied s 473DD of the Act concerning the circumstances in which “new information” may be considered.

Factual setting

8    The confined nature of the appeal means that it is not necessary to set out all the circumstances of the appellant’s claim for protection in detail. It is sufficient to record that the appellant claimed protection on the basis that he is a Tamil from the north of Sri Lanka; that his home village is in an area which had been infiltrated by the Liberation Tigers of Tamil Eelam (LTTE) and, during the Civil War, had often been subject to attack by the Sri Lankan Army; that the appellant’s brother had been killed in one such attack; that the appellant and his family had fled to India where they remained as refugees until February 1988; that they had returned to Sri Lanka but had again fled to India in 1990; that the appellant had remained there until 2008; that after returning to Sri Lanka to marry, the appellant had returned to India and remained there between 14 April 2010 and March 2012; and that between 13 March 2012 and 10 August 2012, when the appellant and his wife had left Sri Lanka to travel to Australia, the appellant had been subject to periodic intensive questioning by the Sri Lankan Police, a Special Task Force member and by customs officers. The appellant claimed that in those interrogations he had been repeatedly accused of having supported the LTTE.

Statutory provisions and principles

9    The IAA is to review fast track reviewable decisions referred to it under s 473CA by considering the same material as was considered by the delegate, without accepting or requesting new information and without interviewing the referred applicant – see s 473DB(1). However, s 473DC(1) of the Act authorises the IAA, subject to the terms of Pt 7AA, to “get” any documents or information that were not before the Minister when the Minister made the decision under s 65 and which the IAA considers may be relevant (defined as “new information”).

10    The IAA is not obliged to “get, request or accept” any new information (s 473DC(2) but may “invite” a person to give new information (s 473DC(3)).

11    The operation of s 473DC is subject to s 473DD, which provides:

473DD 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.

12    As is apparent, s 473DD contains two preconditions, both of which must be satisfied before the IAA can consider new information. The second precondition contains internal alternatives, so that satisfaction of one or other of the alternatives will satisfy it.

13    A number of matters of approach concerning the application of s 473DD have now been settled in the authorities. They include AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; (2020) 94 ALJR 1007 which was delivered while the judgment on this appeal was reserved. The parties provided supplementary submissions concerning the significance of the decision in AUS17 for this appeal.

14    The settled matters of approach include:

(a)    section 473DD imposes a duty on the IAA to assess new information that it has “got” against the specified criteria and to take the new information into account if satisfied that those criteria are met: AUS17 at [6];

(b)    the IAA cannot consider any new information at all unless satisfied that there are exceptional circumstances justifying it doing so and, if the visa applicant is the source of the information, is satisfied as to one or other of the elements in subpara (b): BDY18 v Minister for Immigration and Border Protection [2020] FCAFC 24; (2020) 273 FCR 170 at [23];

(c)    the term “exceptional circumstances” in subpara (a) is to be given a broad meaning and requires that consideration be given to all the relevant circumstances: Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176, (2017) 257 FCR 111 at [104]; Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110, (2018) 264 FCR 249 at [51]. What is required is a contextual evaluation having regard to all the circumstances of the case: BDY18 at [25];

(d)    the matters which will amount to “exceptional circumstances” justifying consideration of the new information for the purposes of subpara (a) are not capable of exhaustive statement. They need not be unique, unprecedented or very rare but cannot be circumstances which are regularly, routinely or normally encountered: Plaintiff M174/2106 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217 at [30];

(e)    although the requirements of subparas (a) and (b) are cumulative, they overlap. If the new information is found to satisfy either or both the criteria in subpara (b), the IAA must take that circumstance into account when considering whether the subpara (a) criterion is satisfied: AUS17 at [11]-[12]. That is to say, the IAA’s satisfaction of either or both of the limbs in subpara (b) may inform its satisfaction under subpara (a) that there are exceptional circumstances justifying consideration of the new information: BBS16 at [102]: AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111; (2018) 162 ALD 442 at [14]. By way of example, the IAA’s satisfaction that the new information could not have been provided to the Minister at the time of the s 65 decision may contribute to its satisfaction that there are exceptional circumstances justifying consideration of the new information: CQW17 at [48]; CHF16 v Minister for Immigration and Border Protection [2017] FCAFC 192, (2017) 257 FCR 148 at [17]-[18], DYS16 v Minister for Immigration and Border Protection [2018] FCAFC 33, (2018) 260 FCR 260 at [31]-[33]; CAQ17 v Minister for Immigration and Border Protection [2019] FCAFC 203 at [91];

(f)    the exceptional circumstances may comprise a single factor or be found in a combination of factors considered collectively: AQU17 at [13]. This necessitates consideration of all relevant circumstances because, even though no one factor may be exceptional, the circumstances in combination may be such as reasonably to be regarded as exceptional: AQU17 at [7]-[8];

(g)    subparagraphs (b)(i) and (ii) involve different considerations. The former requires a factual enquiry as to whether or not the new information could have been presented to the Minister, whereas the later requires an evaluation of the significance of the new information in the context of the referred applicant’s claims more generally: BBS16 at [105];

(h)    the “personal” information to which subpara (b)(ii) refers is information about the referred applicant which was not previously known to the Minister, even if known to the referred applicant: Plaintiff M174 at [33];

(i)    an error in the formation of the state of satisfaction as to one precondition may infect the other: BDY18 at [26]; and

(j)    it is the satisfaction of the IAA which is required by both subparas (a) and (b). Accordingly, it is for the IAA, and not the Court on review, to form the required state of satisfaction: BDY18 at [28].

15    In relation to s 473DD(b)(ii), the plurality in Plaintiff M174 (Gageler, Keane and Nettle JJ) said that all that the IAA needs to be satisfied about in order that this precondition be met is that: “(1) the information is credible information about an identified individual, or an individual who is reasonably identifiable; (2) the information was not previously known by either the Minister or the referred applicant; and (3) had the information been known by either the Minister or the referred applicant, the information may have affected the consideration of the referred applicant’s claims”, at [34].

16    The requirement that the personal information to which subpara (b)(ii) refers be “credible” has been considered in a number of the authorities. In CSR16 v Minister for Immigration and Border Protection [2018] FCA 474, Bromberg J said:

[41]    In my view all that the “credible” element of the s 473DD(b)(ii) criteria requires is the Authority’s satisfaction that the “new information” is information which is open to be or capable of being accepted by the Authority as truthful (or accurate, or genuine). It is only at the deliberative stage of its review that the Authority will be required to determine whether or not the “new information” is true. The s 473DD(b)(ii) criteria is concerned with an earlier or anterior stage of the review directed at whether “new information” should be received by the Authority so that it may be considered at the deliberative stage.

[42]    The criteria is a filtering mechanism designed to separate information worthy of consideration at the deliberative stage from that which is not. In that context, the word “credible” is used in relation to information, not in the sense that the information is believed, but in the sense that the information is capable of being believed. It is only information that the Authority is satisfied is “evidently not credible” … that fails to meet the credibility requirement imposed by the s 473DD(b)(ii) criteria.

(Citation omitted)

17    This understanding of the requirement that the personal information be credible appears to have been endorsed by the Full Court in Minister for Immigration and Border Protection v CLV16 [2018] FCAFC 80; (2018) 260 FCR 482 at [17]. As the reasons of Mortimer J in ALJ18 v Minister for Home Affairs [2020] FCA 491 at [24]-[25] indicate, the Minister has in other appeals to this Court challenged the correctness of CSR16. However, in this case, no submission was made by the Minister to the effect that the approach in CSR16 set out above was wrong and should not be followed. During the period in which this judgment was reserved, a majority in a Full Court (Mortimer and Jackson JJ) has held that CSR16 was correctly decided: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020] FCAFC 159 at [62].

The new information

18    The matter which gives rise to the present appeal is a claim which the appellant made in May 2016. The claim was new because the appellant had not mentioned it in his arrival interview or in his interview with the Minister’s delegate on 19 December 2015. The claim was raised only after the delegate’s decision had, in accordance with Pt 7AA of the Act, been referred to the IAA on 6 May 2016.

19    The new information which the appellant sought to have considered by the IAA member comprised:

(i)    his statement on 22 May 2016 in which be claimed that, some 15-20 days before he had left Sir Lanka on 10 August 2012, he had been taken by members of the Sri Lankan Army to an army camp and detained for two days. During this time he had been interrogated and tortured, including by being hung from his feet upside down (initially while nearly naked and later while wholly naked), by being beaten with wooden sticks, by having a glass bottle inserted forcibly into his mouth, and by having a pipe inserted into his anus. The appellant also claimed that he had been told at the time of his release that his wife would face similar treatment;

(ii)    a report of a general practitioner dated 1 June 2016 which provided some support for symptoms suffered by the applicant being attributable to the claimed episode of torture;

(iii)    a report dated 5 October 2017 from a clinical psychologist concerning her treatment of the appellant which also provided some support for his claims; and

(iv)    a report from a general practitioner of 11 October 2017 concerning her treatment of injuries which the appellant attributed to the claimed episode of torture.

The IAA reasons

20    The IAA member noted the explanation given by the appellant in his statement of 22 May 2016 for not having made the claim previously. That explanation was as follows:

[12]    The reason I did not mention this incident of serious harm previously either to my legal representative or to the delegate who interviewed me in December 2015 was due to the following reasons:

a.    Upon arrival in Australia I was afraid to disclose the incident of torture that I underwent as I was afraid the Australian authorities would perceive me to be a member of the LTTE and I could have been returned to Sri Lanka the time I arrived by boat the Australian authorities were returning Tamils who had arrived by boat in large numbers,

b.    I was too embarrassed to disclose this incident that occurred to me in the past either to my representative or the department officers as the experience was humiliating and degrading, being a male it was difficult to open up and talk about it, as the incident affected me greatly mentally.

[13]    This statement has been read back to me over the phone in Tamil by my representative who assisted me in preparing this statement. As my representative assisted me to prepare this statement over the phone I was able to disclose this truth to him and felt less embarrassed.

[14]    Though I have been able to share the facts about this particular incident I am now deeply troubled as certain things I had wanted not to remember are coming back to my mind, I am afraid I could be mentally affected and depressed.

21    The IAA member considered separately the application of s 473DD to the appellant’s statement of 22 May 2016 and to the two medical reports of October 2017. That is to say, the IAA member considered first whether the appellant’s statement of 22 May 2016 could be considered under s 473DD and then, and only then, addressed the question of whether the two medical reports could be considered. As the FCC Judge noted at [53], this was odd because the medical reports “could only go to support the new claim of the Applicant” and, if that claim was rejected, the medical reports had little relevance. As will be seen, the approach of the IAA was “odd” for a further reason.

22    The IAA member did not refer at all to the report of the general practitioner of 1 June 2016 and I understood counsel for the Minister to accept that it was open to conclude that the report had been overlooked. However, counsel for the appellant did not submit that this was, by itself, indicative of jurisdictional error. She submitted only that it would “build into the assessment of the credibility” of the appellant’s claims.

23    The IAA set out its reasons concerning the new claim under the heading “The new claim”. The IAA member was particularly concerned about the long period which had elapsed before the appellant had made the new claim and the reasons which he had given for not making the claim earlier. The member said:

[13]    While I accept that distress and embarrassment may be a reason a person does not disclose information of this type in some circumstances, given the significance of this interrogation, detention and assault, I do not consider it is plausible that the applicant was unable to mention this to his lawyer before the delegate had produced the decision. His application for protection rests squarely on whether he may face harm now or in the foreseeable future and a central claim would be that he has experienced harm from the Sri Lankan authorities in the past. An event such as the one he claims occurred in July 2012 is so inherently relevant to, and potentially indicative of a real chance of serious harm that I do not accept he would not disclose this, or at least some aspect of it (for example the fact that he was detained and beaten but without referring to the sexual violence) until after his application had been refused, particularly as the delegate had specifically warned him that failing to raise claims at the interview or before the decision was made might mean that he could not raise them if his application was refused.

[14]    I also take into account that the applicant has said that he was able to discuss the incident with his lawyer by telephone because he felt less embarrassed. He has not explained why he was not able to do this before the decision was made, to ensure that his complete and personal claims were properly before the delegate.

[15]    Further, I take into account that by the time of the interview the applicant had been in Australia for three years and was being assisted by a migration lawyer. I do not accept that by this time, the applicant was too scared to provide details of mistreatment by the Sri Lankan authorities because he thought he might be sent back to Sri Lanka.

[16]    Having regard to all of the factors set out above, I do not accept the applicant's reasons for not raising the claims before the delegate made her decision. This leads me to doubt the timing and content of the claims. The applicant has not satisfied me as to either of the matters in s.473DD(b). Nor am I satisfied that there are exceptional circumstances to justify considering this new information.

(Emphasis added)

24    Then, and only then, the IAA member addressed the question of whether the medical reports of 5 and 11 October 2017 could be considered. The member gave the following reasons for concluding that they could not be considered:

[17]    The applicant has provided two medical reports. Both are from registered medical practitioners and concern the applicant. The first is from the applicant's current medical practitioner and is dated 11 October 2017, while the second document is a psychological report in respect of the applicant, dated 5 October 2017. Both post-date the delegate's decision and in that sense, could not have been provided to the delegate before that decision was made. The doctor's report notes that the applicant has been attending for treatment since 18 July 2017 and sets out the applicant's as-reported history and records the results of physical examinations in Australia. The report notes an area on the applicant's kidney which is abnormal on ultrasound and "which possibly may be a result of blunt force trauma such as being beaten repeatedly with a pipe", as well as a scar on his left forearm and a scar on his left lower shin which are "consistent with his explanation" of being beaten with a pipe. The report also notes that the applicant has been ashamed and found it difficult to describe his injuries and symptoms to doctors. The psychologist's report notes that the applicant has been receiving specialised torture and trauma support since 30 September 2016 and that the issues he has raised are consistent with the personal history that he provided.

[18]    Both reports indicate that the applicant did not attend and seek treatment until after the IAA had affirmed the delegate's decision and both reports are based on the applicant's as-reported claims. As noted above, the reports refer to injuries and diagnoses that are consistent with the applicant's claimed history but do not confirm the applicant's claimed history or state that there are no other explanations for these issues. I am not satisfied that the reports are probative of the applicant's claims and for this reason, together with my earlier observations in relation to the applicant's failure to raise these claims before the delegate, I am not satisfied that there are exceptional circumstances to justify considering these reports.

25    As is apparent, the IAA member attached significance to the fact that, while the reports referred to injuries and diagnoses which were consistent with the appellant’s claimed history, they did not confirm it, or state that there were no other explanations for the injuries and diagnoses; that (seemingly because of that matter) the reports were not probative of the appellant’s claims and that those circumstances, together with the member’s earlier views about the appellant’s failure to raise the claims before the delegate, meant that there did not exist exceptional circumstances justifying consideration of the new evidence. It is a matter of significance for the appeal that the IAA did not consider the medical reports when evaluating the appellant’s explanation for his belated provision of the new information.

The application to the FCC

26    In the FCC, the appellant alleged two different forms of jurisdictional error, only the first of which is relevant presently. That was that the IAA had “misapplied” s 473DD when determining whether it could consider the new information.

27    The FCC Judge rejected this contention. The Judge considered that the IAA member’s reasoning under the heading “The new claim” indicated that the member had not been satisfied “as to why this material was not before the delegate” and had not been satisfied that the appellant’s statement of 22 May 2016 constituted “credible personal information”, at [50]. The Judge also said that the IAA member had “for good measure” added that he was not satisfied that there were exceptional circumstances for the purposes of subpara (a), at [52].

28    In relation to the medical reports, the Judge considered that the IAA had accepted that subpara (b)(i) had been satisfied but had not been satisfied that there were exceptional circumstances justifying the consideration of the new information, at [56]-[58].

The appellant’s submissions

29    The outline of submissions provided by counsel for the appellant in advance of the appeal hearing indicated that counsel would argue that there had been a constructive failure by the IAA to exercise its jurisdiction because:

(a)    it had conflated the “enquiries” required by s 473DD(b)(i) and (ii);

(b)    it had conflated the subpara (b) “enquiry” with the subpara (a) enquiry; and

(c)    it had adopted an unduly narrow construction of the term “exceptional circumstances” in subpara (a).

30    Counsel’s initial submission was that the IAA’s rejection of the appellant’s explanation for not having raised the claim of interrogation and torture in his claim for protection before the delegate (which seemed to relate to subpara (b)(i)) did not mean that the underlying claim was not credible. The basis on which the IAA had found that subpara (b)(i) was not satisfied could not be dispositive of subpara (b)(ii), as (it was submitted) the IAA had reasoned.

31    Counsel then submitted that the IAA had reasoned that “exceptional circumstances” for the purpose of subpara (a) did not exist, by reference to the findings concerning subpara (b).

32    Counsel also advanced what she described as a “more refined submission”. This was that the IAA’s assessment of whether the information in the appellant’s statement was “credible personal information” had proceeded on an unduly narrow understanding of that term, evidenced by:

(a)    the IAA member’s reliance almost exclusively on his rejection of the appellant’s explanation for the delay in providing the statement concerning the claimed interrogation and torture;

(b)    the failure of the IAA member to have regard to the medical reports provided by the appellant to support that claim; and

(c)    the failure of the IAA member to adopt an approach along the lines stated by Bromberg J in CSR16, outlined above.

33    Counsel accepted that the IAA member had, at [17]-[18], had regard to the medical reports, but emphasised that that had occurred only after the member had stated his satisfaction that neither s 473DD(a) or (b) had been satisfied, so that he could not consider the appellant’s claim of interrogation and torture.

Consideration

34    Like the FCC Judge, I consider it odd that the IAA considered the application of s 473DD to the new claim without, as part of that consideration, also having regard to the medical reports on which the appellant relied. That is because it was self-evident that the appellant’s purpose in providing the medical reports was to support his new claim in both its content and its timing.

35    However, it convenient to put the appellant’s submissions concerning that aspect of the IAA’s reasons to one side for the moment and to address first the issues raised by the appeal independently of this matter.

36    The IAA understood that s 473DD prohibited it from considering the new information provided by the appellant unless it was satisfied of both the subpara (a) and (b) conditions. For this reason, the IAA identified at the commencement of its reasons the information provided by the appellant which was new information and that which was not. The IAA also referred, at [12], to the submission of the appellant’s representative as to “why all of the new information should be considered”.

37    Having made that identification, the IAA then addressed the question of whether the new information could be considered. In doing so, it addressed first the appellant’s claim of interrogation and torture in July 2012, characterising that as “the new claim”.

38    I have emphasised these two matters about the approach of the IAA because they provide the context for the passages in its reasons which followed.

39    It is evident that, in [13]-[15] of the reasons, the IAA addressed first the issue under s 473DD(b)(i), that is, whether the new claim could have been provided to the Minister before the delegate had made her decision on 3 May 2016. Given that the new information comprised an additional claim of the appellant (as opposed, say, to additional evidence of an existing claim or evidence of some more recent relevant development), this meant naturally that there would be focus on the appellant’s explanation for not having made the claim of interrogation and torture until 22 May 2016 (some four years and nine months after his arrival in Australia, some nine months after his application for the SHEV, some five months after his interview with the Minister’s delegate, and some three weeks after the delegate’s decision). The omission of the appellant to have made the claim earlier and at a time when it would have been in his interest to do so, made it almost inevitable that there arose a question as to the veracity of the claim and of the appellant’s explanation for not having made the claim earlier. It is accordingly unsurprising that, in [13]-[15], the IAA addressed directly the explanation proffered by the appellant (through his representative) for the new claim not having been made earlier.

40    In [13], the IAA concluded that the obvious relevance of the new claim made it implausible that the appellant had been unable even to inform his own lawyer of any part of the claim and, in turn, for the delegate to have been informed. This was especially so as the delegate had warned the appellant that “failing to raise claims at the interview or before the decision was made might mean that he could not raise them if his application was refused”, at [13].

41    In [14], the IAA noted that the appellant had been able to discuss the claim with his lawyer in May 2016 but had not explained why he had been unable to do so earlier.

42    In [15], the IAA referred to the length of time the appellant had been in Australia and to the assistance he had been receiving from a migration lawyer. This led the IAA to reject the appellant’s explanation that he had been “too scared to provide details of mistreatment by the Sri Lankan authorities because he thought he might be sent back to Sri Lanka”, at [15].

43    The IAA then concluded, at [16]:

Having regard to all of the factors set out above, I do not accept the applicant’s reasons for not raising the claims before the delegate made her decision.

44    This conclusion (and the omission of the IAA to refer to the other explanation which the appellant had provided for the new claim being made only belatedly) made inevitable the finding of the IAA that the appellant had not satisfied it of the subpara (b)(i) matter, namely, that the new information could not have been provided to the Minister before the delegate’s decision.

45    In the very next sentence of [16], the IAA then said:

This leads me to doubt the timing and content of the claims.

46    Although not stated so expressly, the evident focus of this sentence was on s 473DD(b)(ii), that is, whether the new claim was “credible personal information”. Consideration of the time at which the new claim was made and its content were, considered rationally, an intrinsic part of the assessment of the credibility of the claim. The IAA’s rejection of the appellant’s explanation for the time at which the complaint was made went directly to its credibility. This was reflected in the IAA’s statement that it doubted both the timing and credibility of the claim. That statement of assessment may have been concise but, in context, and reading the reasons fairly and in a way which is not unduly critical (BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 93 ALJR 1091 at [38]), it is evident that the IAA was saying that it did not regard the new claim as credible.

47    The impression that the IAA was referring to subpara (b)(ii) when it said that it doubted the timing and content of the claims is confirmed by the fact that, in the very next sentence, it said:

The applicant has not satisfied me as to either of the matters in s.473DD(b).

48    The IAA then addressed s 473DD(a), saying:

Nor am I satisfied that there are exceptional circumstances to justify considering this new information.

49    When the IAA’s reasons are considered in the way just discussed, it can be seen that it addressed separately each element in s 473DD. That being so, I do not consider that the FCC Judge was wrong in rejecting the appellant’s contention that the IAA had “conflated” the requirements of subparas (b)(i) and (ii). This was a case in which the matters bearing upon subpara (b)(i) (being the timing and content of the new claim) were also pertinent to subpara (b)(ii). That being so, it is unsurprising that the IAA regarded the matters bearing upon its satisfaction of the former as also informing its satisfaction of the latter. To do so was not to conflate the requirements of the two subparagraphs.

50    The decision of Bromberg J in CSR16, on which counsel for the appellant relied, was delivered after the decision of the IAA presently under consideration. It was accordingly not possible for the IAA to make any express reference to that decision. However, on my assessment, this is a matter of no moment. That is because the IAA had found that the appellant’s new claim was not credible, in the sense discussed in CSR16. That finding was sufficient for the IAA to conclude that the appellant had not satisfied it of the subpara (b)(ii) matter.

51    As the IAA considered that the appellant had not satisfied either subpara (b)(i) or subpara (b)(ii), there was, strictly speaking, no need for it to have considered whether there were exceptional circumstances (subpara (a)).

52    The decision of the High Court in AUS17 makes plain that the matters bearing upon satisfaction of subpara (b) may inform satisfaction of the “exceptional circumstances” condition. That was obviously so in the circumstances of the present case. The IAA’s rejection of the explanation for the new claim not having been made earlier and the lack of satisfaction that the new claim was credible personal information was plainly relevant to the assessment of whether there were exceptional circumstances. In fact, subject to the matter to be considered next, the appellant’s submissions did not indicate any rational means by which the IAA could have been satisfied that exceptional circumstances existed justifying the consideration of the new claim when his explanation for not making the new claim earlier had been rejected and when the IAA was not satisfied that the new claim was credible.

53    If matters had stood here, this would have meant that the appeal should be dismissed.

54    However, it is necessary to consider counsel’s submission concerning the failure of the IAA to consider the medical reports when considering the credibility of the new information provided by the appellant. As already noted, counsel submitted that this indicated an unduly narrow understanding by the IAA of the term “credible personal information”.

55    Paragraphs [17] and [18] of the IAA’s reasons have been set out earlier. Both their place in the IAA’s reasons and their content indicate that the IAA considered the reports of the appellant’s general practitioner and the psychologist only after having found that the appellant had not, in relation to his own account, satisfied either of the conditions in s 473DD in respect of the new information.

56    Further, the manner in which the IAA addressed the medical reports suggests that it regarded them as being relevant only to the question of whether the appellant had been subject to the interrogation and torture he claimed, and not as relevant to the appellant’s explanation for not having raised the claims earlier:

[18]    … As noted above, the reports refer to injuries and diagnoses that are consistent with the applicant's claimed history but do not confirm the applicant's claimed history or state that there are no other explanations for these issues. I am not satisfied that the reports are probative of the applicant's claims and for this reason, together with my earlier observations in relation to the applicant's failure to raise these claims before the delegate, I am not satisfied that there are exceptional circumstances to justify considering these reports.

(Emphasis added)

57    These passages indicate that the IAA’s rejection of the appellant’s explanation for the lateness of the claim was reached without regard to the medical and psychological reports and therefore to the whole of the information.

58    The IAA appears not to have appreciated that both reports were relevant to the assessment of the credibility of the appellant’s explanation for having raised the new claim only belatedly, and not just to the credibility of his claims concerning those incidents. For example, in the report of 11 October 2017, the general practitioner said:

He has been so ashamed about this treatment [the insertion of objects into his rectum] and the sequelae he has found it difficult to describe to doctors to ask for help …

[The appellant] experiences symptoms consistent with post traumatic stress disorder. He has a low mood and recurrent involuntary thoughts about the events of 2012 …

I hope to continue to work with [the appellant and his wife] to help them recover from their traumatic experience.

(Emphasis added)

59    In her report of 5 October 2017, the psychologist reported:

Furthermore [the appellant’s] hypervigilance, sensitivity to reminders of his traumatic history and high levels of anxiety restrict his ability to verbalise specific details of his past experience, such as recalling dates, locations and the times of sequence of events; consistent with the scientific literature on the psychological impact of trauma.

(Emphasis added)

60    This expert medical evidence concerning the appellant’s mental health went directly to the explanation proffered by the appellant for the belated making of the new claim. Despite that, in determining whether the new information (being the appellant’s new claim) could be considered, the IAA did not have regard to it. The IAA thereby failed to have regard to the whole of the information when addressing the question of whether it could be “considered”. This was an error.

61    There are various ways in which the error which the appellant imputes to the IAA may be expressed. It may be a failure to consider the new information as a whole in the assessment of whether it constituted “credible personal information”. It may be a misunderstanding by the IAA of the way in which it was to discharge its function. However, the precise characterisation of the error is not important. The IAA was bound to consider whether the appellant’s new information was credible personal information: AUS17 at [6], [11]. It was required to undertake that consideration in accordance with law. This was an essential requirement for the discharge of the statutory obligation to review imposed on the IAA by s 473CC of the Act. In undertaking that review, the IAA had to consider whether the new information provided to it by the appellant could be considered: AUS17 at [6]-[7]. That issue had to be determined by regard to all “the information, evidence and arguments” relevant to it: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [44]. By failing to have regard to the medical reports when considering whether the appellant’s new information was credible personal information, the IAA failed to comply with this part of its statutory task. That was jurisdictional error.

62    This case is distinguishable from Re Minister and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59 in which it was held that a feature to consider evidence corroborating an applicant’s account, having rejected that account, was not an error of law, at [12]-[14] (Gleeson CJ), at [49] (McHugh and Gummow JJ). This is not a case of the kind to which Gleeson CJ referred in [14] of Applicant S20:

Decision-makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others. Ordinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole. I do not think that the Tribunal member intended to convey that she made up her mind about the evidence of the applicant/appellant before taking account of the evidence of the witness who was said to corroborate him.

63    Instead, the compartmentalised reasoning adopted by the IAA meant that it considered both the appellant’s claim and the medical evidence independently of the other, and without considering the new information as a whole.

64    It may be that the IAA’s error could also be said to have made its decision legally unreasonable, because of irrationality in the reasoning process – see Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [130]-[131]. However, counsel did not contend for such a characterisation and it need not be considered.

65    The IAA’s error should be regarded as material because it affected a foundational step in its reasoning, that is, its rejection of the appellant’s reasons for not raising his new claim before the Minister’s delegate. As previously noted, the IAA had relied on that conclusion in the assessment of the s 473DD(b)(i) criterion and, in turn, on the assessment of the s 473DD(a) criterion. Given its importance to the IAA’s reasoning, it can be concluded that the error has deprived the appellant of the possibility of a successful outcome: Hossain v Minister for Immigration and Border Protection [2018] HCA 34, (2018) 264 CLR 123 at [72]; Applicant S270/2019 v Minister for Immigration and Border Protection [2020] HCA 32 at [4].

66    Accordingly, I consider that, for this limited reason, the appeal must be allowed.

The Minister’s “procedural power” submission

67    In reaching this conclusion, I have not overlooked the submission of counsel for the Minister that the IAA is not under any duty to explain its reasons for declining, pursuant to s 473DD of the Act, to consider “new information”. Counsel made this submission by reference to BVD17 at [16] and [40] and to CAQ17 at [119]-[120].

68    In BVD17, the plurality said, at [16], that the IAA “in giving reasons for [the] ultimate decision to affirm or remit is not required to give reasons for the exercise or non-exercise of a procedural power such as those conferred on it by s 473DC(1) or s 473GB(3)”. In CAQ17 at [119], Derrington and Steward JJ cited BVD17 as authority for the proposition that the IAA is under no obligation to provide reasons for its determination as to whether information obtained by it or given to it was “new information”. However, contrary to counsel’s submission, neither BVD17 nor CAQ17 was concerned with the requirement for reasons to be provided by the IAA in respect of its decision as to whether it should consider new information which it has received. Following the decision in AUS17 at [6] that the IAA is bound to assess the new information it has received against the s 473DD criteria, it would seem inappropriate to regard the decision on whether the new information can be considered under s 473DD as the exercise of a “procedural power”. In any event, in the present case, the IAA did give reasons and did thereby disclose its reasoning.

Conclusion

69    For these reasons given above, the appeal must be allowed. The orders of the Court are:

(a)    The appeal is allowed;

(b)    The orders of the FCC made on 29 October 2019 are set aside.

(c)    A writ of certiorari be issued quashing the affirmation by the IAA on 3 November 2017 of the decision of the Minister’s delegate to refuse the appellant’s application for a Safe Haven Enterprise Visa.

(d)    The matter be remitted to the IAA so that another member may undertake the review required by s 473CC of the Act in accordance with law.

(e)    The first respondent is to pay the appellant’s costs of and incidental to the appeal to this Court and of and incidental to the judicial review proceedings in the FCC.

Associate:

Dated:    17 December 2020