Federal Court of Australia

BON17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1851

ORDERS

THE COURT ORDERS THAT:

1.    Orders 2 and 3 of the orders of the Federal Circuit Court made on 28 July 2020 be set aside and in lieu thereof it be ordered that:

(a)    A writ of certiorari be issued to the Immigration Assessment Authority quashing its decision made on 29 July 2019 affirming the decision not to grant the appellant a Safe Haven Enterprise visa;

(b)    The matter be remitted to the Immigration Assessment Authority for determination according to law and in accordance with the reasons herein;

(c)    The first respondent pay the appellant’s costs of the application before the Federal Circuit Court.

2.    The first respondent pay the appellant’s costs of the appeal, as agreed or taxed.

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

REASONS FOR JUDGMENT

SC DERRINGTON J:

Introduction

1    The appellant appeals from a judgment of the Federal Circuit Court (FCC) delivered on 28 July 2020, dismissing his application for judicial review of a decision of the Immigration Assessment Authority, affirming a decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister) not to grant the appellant a Safe Haven Enterprise (subclass 790) visa (SHEV). The appeal turns on the construction and operation of s 473DD within Part 7AA of the Migration Act 1958 (Cth).

2    In the Notice of Appeal, the appellant contends that the FCC erred in not finding that the Authority’s decision was affected by jurisdictional error in that the Authority:

a. misconstrued s 473DD in considering its purported application to the three components of new information;

b. formed its state of satisfaction as to s 473DD in a legally unreasonable way in deciding not to consider one or more of the three components of new information; and/or

c. acted unreasonably by not getting new information under s 473DC from the applicant about the three components.

3    In oral submissions, only the first and third grounds were pressed.

4    The Minister has sought leave to rely upon a Notice of Contention, filed on 1 December 2020, by which he seeks to uphold the decision of the primary judge, in particular the dismissal of ground one of the application before the FCC, on the basis that the Authority did not fail to consider a mandatory relevant consideration or otherwise fall into jurisdictional error in its application of s 473DD of the Migration Act, because the Authority did not fail, in substance, to assess satisfaction of the criteria in ss 473DD(b)(i) and (b)(ii) of the Act, and did not fail to take the outcome of its assessment into account in determining whether there existed exceptional circumstances within s 473DD(a).

5    The Notice of Contention was not filed within 21 days after the service of the Notice of Appeal, as required by r 36.24 of the Federal Court Rules 2011 (Cth). The application for leave and an extension of time is made on the basis that, after the delivery of the judgment of the FCC and the filing of the Notice of Appeal in this Court, on 14 October 2020, the High Court of Australia delivered its judgment in AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; (2020) 94 ALJR 1007, which judgment concerns the interpretation of the section of the Migration Act the subject of this appeal.

6    The appellant opposed the grant of leave but made submissions on the substance of the Notice of Contention during oral argument and was given the opportunity to seek leave to file further written submissions in reply to the Notice. No such leave was sought. In the circumstances where no prejudice to the appellant has been asserted, leave is granted to the Minister to rely on the Notice of Contention.

Relevant legislative provisions

7    Part 7AA of the Migration Act is concerned with the fast track review process in relation to certain protection visa decisions. Section 473CC imposes a duty on the Authority to review a “fast track reviewable decision” referred to it by the Minister by which a delegate of the Minister has refused under s 65 to grant a protection visa to the “referred applicant”.

8    Section 473DB requires the Authority to perform that duty by “considering” the “review material” provided to it by the Secretary at the time of referral “without accepting or requesting new information” and “without interviewing the referred applicant”, save to the extent that the Authority “gets” new information from the referred applicant or some other person under s 473DC and goes on to “consider” that new information under s 473DD.

9    Section 473DC of the Migration Act provides:

Getting new information

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

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

(b) the Authority considers may be relevant.

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

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

(a) in writing; or

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

10    Section 473DD of the Migration Act provides:

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.

11    As the High Court of Australia has recently explained, s 473DD(b)(ii) was inserted “for the express purpose of expanding the circumstances in which new information obtained from a referred applicant might be considered by the Authority beyond those which would have prevailed had s 473DD(a) been left to operate only in combination with s 473DD((b)(i)”: AUS17 at [9].

Background facts and procedural history

12    The appellant is an Afghani citizen, who is Shia Muslim and of Hazara ethnicity. On 29 August 2016, his application for a SHEV, made on 16 October 2015, was refused by a delegate of the Minister in a fast track reviewable decision which the Minister referred to the Authority.

13    Central to the appellant’s claims to be a person in respect of whom Australia has protection obligations were his claims to fear persecution from the Taliban as he is Shia Muslim, of Hazara ethnicity, and does not support the Taliban. In particular, the appellant claimed that the Taliban attempted to force the appellant to transfer his family’s land to them in or around 2000 or 2001. When the appellant did not agree to do so, he was physically harmed by the Taliban. He claimed that he then decided to leave Afghanistan and travelled to Pakistan and Iran where his family joined him. He resided unlawfully in Pakistan and Iran until he departed for Australia in 2012. The appellant also claimed that his parents were reported to the Taliban by the leader of the village (who was said to work for the Taliban), and they were killed after returning from Pakistan, where they had travelled to for medical treatment for the appellant’s mother.

14    The delegate did not accept the appellant’s claims that his parents were targeted due to the issue concerning the family’s land, that he had received threats from the leader of the village or the Taliban because of his family’s land (or for any other reason), nor that the appellant or his family were targeted by the leader of the village, the Taliban, or anyone in Afghanistan for any reason.

15    By operation of s 473CA of the Migration Act, the matter was referred to the Authority and, on 7 February 2017, the Authority affirmed the decision of the delegate.

16    The FCC subsequently quashed that decision of the Authority and remitted the matter to the Authority, differently constituted.

17    Under cover of an email dated 17 July 2019 from the appellant’s migration agent to the Authority, the appellant informed the Authority that there had been “numerous and significant changes which are personal and relevant” to his claims for protection and which postdate the delegate’s decision. The email attached, inter alia, written submissions, and noted that a statutory declaration by the appellant would be forthcoming. That declaration, dated 18 July 2019, attested: to an attack in November 2018 in Jaghori, where his wife and children were living, and many Hazara had been killed; that two of the appellant’s sons went missing at the time and are presumed dead; and that his family fled to Quetta in Pakistan.

18    In its decision and reasons of 29 July 2019 (IAA Reasons), the Authority affirmed the decision of the delegate, finding amongst other things that the appellant had invented the claims that a person who was said to be working for the Taliban was responsible for his parents’ deaths in order to strengthen his claims that he would face harm from that person or the Taliban (IAA Reasons [31]). The Authority found that the appellant was not of any interest to anti-Government elements at the time of his departure, and would not be on his return, and that he would not face a real chance of harm arising from his ethnicity, his religion, the general level of violence, road travel, his period of residence in Australia, or any combination of these factors (IAA Reasons [77]-[78]).

19    The Authority recorded that the attachments to the email of 17 July 2019 from the appellant’s migration agent and the appellant’s statutory declaration were “new information” (IAA Reasons [6]-[7]). In considering the “new information” that related to his family, the Authority said (IAA Reasons [9]):

Both the 2019 submission and his Statutory Declaration assert that the applicant’s family no longer reside in his village in Jaghori district, and due to a recent outbreak of violence in the District, fled to Pakistan and are currently residing in Quetta. This claim was not before the delegate. It is new information. This issue is raised in very general terms in the submission without any specific details being provided. No information is provided when the applicant’s family departed their home, or what specific factors led to their departure, or how they travelled, or why they went to Pakistan, or where specifically they are located now, or what their intentions for the future are. I note that since his arrival in Australia, the applicant in this case has consistently asserted that he is the father of five children. In context of the claimed move by his family to Quetta, the 2019 Submission indicates that the applicant’s wife and his five children moved to Pakistan. However, as I have noted the applicant’s Statutory Declaration had previously indicated that two of the applicant’s sons went missing in November 2018, have not been seen since that time, and are presumed deceased. The Submission also reiterated these claims about his missing sons. These assertions are clearly at odds with each other, and would seem to indicate that the applicant has not been entirely forthcoming. While on its face these events are all said to have occurred around November 2018, well after the date of the s.65 decision, I have serious doubts about the veracity of these claims and given the paucity of any useful detail around much of the claims, the unexplained contradictions in his evidence about his family, I am not satisfied that there are exceptional circumstances to justify the consideration of the new information about [h]is family.

Ground one

20    The appellant contends that the FCC erred in not finding that the Authority’s decision was affected by jurisdictional error in that it had misconstrued s 473DD in considering its purported application to the three components of new information, being the attack in Jaghori, that two of his sons were missing, presumed dead, and that his family had fled to Quetta. A failure by the Authority to first assess new information against the criterion specified in s 473DD(b)(i) and s 473DD(b)(ii), before making a determination in the purported application of the criterion in s 473DD(a) that exceptional circumstances do not exist is characterised as a failure to take account of a mandatory relevant consideration: AUS17 at [12].

21    In the FCC, the primary judge accepted that the Authority had made a finding only in relation to the criterion in s 473DD(a) and held (FCC Reasons [29]):

…there is nothing in the wording of the section which prevents the IAA from determining the question of exceptional circumstances without reference to the matters referred to in subsection (b). In considering the question of ‘exceptional circumstances’ there is nothing to prevent the IAA from making an evaluative assessment of the claims at that stage, which is what it did here.

22    The primary judge did not have the benefit of the judgment in AUS17. That decision explains, at [10]-[12]:

10.     Section 473DD would be at war with itself, and the purpose of s 473DD(b)(ii) would be thwarted, if the circumstance that there was new information from a referred applicant meeting the description in either s 473DD(b)(i) or s 473DD(b)(ii) were able to be ignored by the Authority in assessing the existence of exceptional circumstances justifying consideration of that new information in order to meet the criterion specified in s 473DD(a).

11.     Logic and policy therefore demand that the Authority assess such new information as it might obtain from the referred applicant first against the criteria specified in bot s 473DD(b)(i) and s 473DD(b)(ii) and only then against the criterion specified in s 473DD(a). If neither of the criteria specified in s 473DD(b)(i) and s 473(b)(ii) is met, the Authority is prohibited from taking new information into account in making its decision on the review. Further assessment of the new information against the criterion specified in s 473DD(a) is redundant. If either the criterion specified in s 473DD(b)(i) or the criterion specified in s 473DD(b)(ii) is met, that is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a). If both the criterion specified in 473DD(b)(i) and the criterion specified in s 473DD(b)(ii) are met, that too is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DVictims’ Charter Act 2006D(a) and which must heighten the prospect of that criterion being met.

12.     The result … is that the Authority does not perform the procedural duty imposed on it by s 473DD in its conduct of a review if it determines in the purported application of the criterion in s 473DD(a) that exceptional circumstances justifying consideration of new information obtained from the referred applicant do not exists without first assessing that information against the criteria specified in bot s 473DD(b)(i) and s 473DD(b)(ii) and then taking the outcome of that assessment into account in its assessment against the criterion specified in s 473DD(a).

23    The Minister accepted, appropriately, that the finding of the primary judge cannot stand in light of the decision in AUS17. That alone is a sufficient reason to uphold ground one of the appeal.

The Notice of Contention

24    By his Notice of Contention, however, the Minister contends that the Authority did not fail, in substance, to assess satisfaction of the criterion in s 473DD(b)(i) and (ii) and did not fail to take the outcome of its assessment into account in determining whether there existed exceptional circumstances within s 473DD(a). The Minister submits that the final words of para [9] in the IAA Reasons, “I am not satisfied that there are exceptional circumstances to justify the consideration of the new information about [h]is family” were informed by “the reasoning in the balance of the paragraph” and “reflect a consideration by the Authority … of satisfaction of s 473DD(b)(i), with other relevant matters including matters bearing on s 473DD(b)(ii)” (RS [15]).

25    This submission cannot be accepted. It is plain that the Authority did not make a finding in relation to the criterion in either s 473DD(b)(i) or s 473DD(b)(ii). The Authority recorded that, “While on its face these events are all said to have occurred … well after the date of the s 65 decision, I have serious doubts about the veracity of these claims…”.

26    The Minister contends that para [9] is to be construed as containing an implied finding in respect of the criterion in s 473DD(b)(ii) that the new information was “not credible personal information”. The appellant submits that any such finding would reveal an error by the Authority in undertaking a substantive evaluative process as to the veracity of the appellant’s complaints at the procedural stage.

27    In CSR16 v Minister for Immigration and Border Protection [2018] FCA 474, Bromberg J held, at [43], that the Authority misconstrued s 473DD(b)(ii) and misconceived what the exercise of the statutory power entailed in requiring satisfaction that the new information was true. His Honour explained, at [41]-[42]:

41.     …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” (VEAL v Minister for Immigration and Multicultural Affairs (2005) 225 CLR 88 at [17] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ) that fails to meet the credibility requirement imposed by the s 473DD(b)(ii) criteria.

28    This approach was upheld by the Full Court of the Federal Court in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020] FCAFC 159, where Mortimer and Jackson JJ observed, at [76]-[77]:

76.     Particularly in a scheme premised on a review “on the papers”, there is a real difficulty with the Authority undertaking some kind of substantively evaluative process at this point, and weighing the new information, the visa applicant’s explanation of why it should be considered, and the existing review material together, and then reaching some relatively definitive findings about the credibility of the visa applicant (which would occur in deciding if the new information were “true”). That difficulty is that the Authority is, in substance, taking into account material that is not before it on the review in determining the credibility of the visa applicant. That is neither what the legislative scheme of Pt 7AA contemplates nor what it permits. Fresh decisions on the review must be based on the review material before the Authority: they cannot be based on extraneous material, which is what “new information” is, until it is admitted. That, in our opinion, is an important reason why the approach identified by Bromberg J in CSR16 is correct.

77.     Viewed in its context, as Bromberg J identified at [42], the terms of s 473DD(b)(ii) operate as a filter, which the Authority is required to apply to “new information” proposed to be presented by a visa applicant. The subsection sets a threshold, requiring a visa applicant to satisfy the Authority the new information has that character, or, if it does not have that character, that it was not and could not have been provided to the Minister or her or his delegate prior to the s 65 decision (s 473DD(b)(i)). In either case the Authority must still be satisfied there are “exceptional circumstances” justifying including the new information in the material to be considered by the Authority on its review. Considering s 473DD as a whole, there is no basis to suppose Parliament intended some kind of intensive and final analysis of the probative value of new information to occur within the confines of s 473DD(b)(ii).

29    The Minister contends that holding “serious doubts about the veracity” of the claims does not equate to a finding of truth, or otherwise, in relation to those claims and so no such error is revealed. Relying on BTW17, the Minister contends that all that is required is that the Authority be “satisfied that the new information is ‘capable of being believed’. That means, conversely, the Authority is able to decide that the new information is not capable of being believed” (BTW17 at [81]).

30    In my view, the implied finding sought to be identified by the Minister in respect of the criterion in s 473DD(b)(ii) that the new information was “not credible personal information” cannot be discerned from para [9]. It may be that the Authority’s expression of doubt related to whether the facts asserted did indeed occur after the date of the s 65 decision, or it may have related to the Authority’s view as to whether or not the claims were “credible personal information”. In either case, the Authority made no finding that the claims were not credible (cf: BTW17 at [24]; CSR16 at [35]). It expressed its satisfaction only in relation to the criterion in subparagraph (a), without assessing the statutory declaration against the criterion specified in s 473DD(b).

31    The dismissal by the primary judge of ground one of the application to the FCC cannot be upheld on the basis relied on in the Notice of Contention.

Ground two

32    The appellant contends that the FCC should have found that the Authority’s decision was affected by jurisdictional error because the Authority acted unreasonably by not exercising its discretion under s 473DC of the Migration Act to get new information in relation to the three matters raised in the appellant’s statutory declaration.

33    The appellant submits that it was legally unreasonable for the Authority to have relied on the lack of detail about why the family had fled to Quetta, and the inconsistency between the statutory declaration and the submissions as to the number of the appellant’s children who had fled, to find that there were no exceptional circumstances to justify consideration of the new information. The appellant submits that any such lack of detail or ambiguity could have been easily remedied had the Authority exercised its power under s 473DC of the Migration Act.

34    The appellant relied on the decision of the High Court of Australia in Minister for Home Affairs v DUA16 [2020] HCA 46, which was concerned with two applicants for protection visas, DUA16 and CHK16. The High Court reaffirmed, at [27], that there is no general obligation on the Authority to get new information and that “this is so even if the submissions are hopeless, or if they contain errors, even major errors, about facts or law. However, the power in s 473DC is still subject to the usual implication that it must be exercised within the bounds of legal reasonableness.” In the circumstances of CHK16, which were described as “extreme” (at [28]), the Court held that it was legally unreasonable for the Authority not to have asked why the submissions with which it was provided did not relate to the applicant, but nevertheless proceed to decide the review without making further inquiry (at [31]). In relation to DUA16, however, the Court held that it was not legally unreasonable for the Authority to fail to exercise its powers under s 473DC to get new information in circumstances where it had determined that a small amount of information relating to a different applicant had been included in the submissions on behalf of DUA16 by mistake and the Authority had disregarded the errors and pointed out that the requirements in s 473DD for consideration of new information had not been met (at [34]).

35    A finding that a conclusion drawn by an administrative decision maker is unreasonable is stringent and not lightly made. It is well established that Courts will not lightly interfere with the exercise of a statutory power involving an element of discretion: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 at [11] per Kiefel CJ. Here, had the Authority appropriately considered s 473DD(b)(i) and (ii) and then turned its mind to s 473DD(a), it would have been within the sphere of its decisional freedom not to proceed to obtain new information when it had retained concerns as to its veracity. The reliability or the potential reliability of the information to be considered will usually be an important consideration for the Authority when determining whether to exercise its power under s 473DD(a).

36    In the present circumstances, given the conclusion I have reached in relation to ground one, and as the Notice of Contention fails, it is unnecessary to determine the second ground of appeal.

Disposition

37    For the reasons set out above, the appeal should be allowed with costs. It follows that orders should be made setting aside the orders of the primary judge dismissing the appellant’s application and requiring the appellant to pay the Minister’s costs below. The Authority’s decision should be set aside and the matter should be remitted for redetermination by the Authority.

Associate:

Dated:    23 December 2020