Federal Court of Australia

DHJ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 364

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed with costs to be taxed if not otherwise agreed.

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

REASONS FOR JUDGMENT

COLLIER J:

1    Before the Court is an appeal from a decision of the Federal Circuit Court of Australia in DHJ16 v Minister for Immigration and Border Protection [2019] FCCA 109 of 21 January 2019. On 1 April 2020, I delivered my decision in DHJ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 414, granting the applicant an extension of time under rule 36.05 of the Federal Court Rules 2011 (Cth) to file the notice of appeal now before the Court (Extension Judgment).

2    The primary decision affirmed the 7 October 2016 decision of the Immigration Assessment Authority (Authority), which in turned affirmed the 15 August 2016 decision of a delegate of the Minister to refuse to grant the appellant a Temporary Protection Visa (subclass 785) under the Migration Act 1958 (Cth) (Migration Act).

3    The background to these proceedings, the decision of the Authority, and the decision of the primary Judge are summarised at [2]-[30] of the Extension Judgment.

notice of appeal

4    The appellant relies on the following particularised ground of appeal:

1.    The Federal Circuit Court erred in not finding that the Second Respondent (Authority) constructively failed to exercise its jurisdiction by returning or failing to take into account the contents of a letter dated 18 September 2016 sent to the Authority by the Appellant’s migration agent.

Particulars

a.    At all material times, the Authority was required to conduct reviews in accordance with the Practice Direction for Applicants, Representatives and Authorised Recipients (Practice Direction).

b.    Under the Practice Direction, a referred application may give the Authority three kinds of information:

i.    A submission as to why the referred applicant disagrees with the decision of the Department. [sic] and as to any claim or matter presented to the Department by the referred applicant that was overlooked: para 20. There is a 5 page limit on submissions of this kind: para 21.

ii.    New information: para 22. There is no stipulated page limit for the provision of new information to the Authority.

iii.    An explanation, to accompany any new information given, as to why the information could not have been given to the Department before the decision was made, or as to why the information is credible personal information which was not previously known and may have affected the referred applicant’s claims, had it been known: para 23. There is a 5 page limit on the explanation of accompanying new information: para 24.

c.    On 18 September 2016 the Appellant’s representative sent to the Authority a 97 page letter containing submissions and new information (First Submission).

d.    The First Submission predominantly consisted of ‘new information’, not of ‘submissions’ in the sense in which that term is used in paragraphs 20-21 or 23-24 of the Practice Direction.

e.    On 21 September 2016 the Authority sent the Appellant’s representative a letter in which:

i.    the Authority stated that the First Submission ‘exceeds the 5 page limit’;

ii.    it informed the Appellant’s representative that the Authority was returning the First Submission in order to permit him ‘to provide a concise submission which identified the issues and that complies with the Practice Direction’; and

iii.    the Authority acknowledged that much of the First Submission was country information that was not before the Department and which was therefore ‘new information’.

f.    On 4 October 2016 the Appellant’s representative sent to the Authority a considerably shorter submission (Second Submission) in the place of the First Submission.

g.    In the Authority’s decision:

i.    the Authority found that the First Submission did not comply with the Practice Direction on the basis that it ‘exceeded the 5 page limit’;

ii.    the Authority said that it had returned the First Submission ‘[p]ursuant to paragraph 21 of the Practice Direction’;

iii.    the exception of specified matters referred to at [5] and [6] of its decision record, the Authority did not have regard to the submissions or new information contained in the First Submission; and

iv.    the Authority found that the Appellant would not face a real chance of persecution and/or a real risk of significant harm if he were to relocate within Pakistan, and that it would be reasonable for him to do so,

h.    The Authority erred:

i.    by failing to determined:

i.    which parts of the ‘First Submission’ consisted of ‘submissions’ and which parts consisted of ‘new information’; and

ii.    whether those parts of the ‘First Submission’ which consisted of ‘submissions’ exceeded the 5-page limit for ‘submissions’ in paragraph 21 of the Practice Direction;

ii.    by incorrectly determining that the First Submission did not comply with the Practice Direction, and that it had the power to return the First Submission, because the First Submission exceeded the ‘5-page limit’, in circumstances were:

i.    that limit only applied to those parts of the First Submission which consisted of ‘submissions’, and not those parts of the First Submission which consisted of ‘new information’;

ii.    the power to return the First Submission only arose if those parts of the First Submission which consisted of ‘submissions’ exceeded the 5-page limit;

iii.    the First Submission predominantly consisted of ‘new information’, not ‘submissions’; and

iv.    the Authority did not determine whether those parts of the First Submission which consisted of ‘submissions’ exceeded the 5-page limit, but instead applied that ‘limit’ to both the ‘submissions’ and ‘new information’ within the First Submission;

iii.    in purporting to return the First Submission pursuant to paragraph 21 of the Practice Direction, in circumstances where:

i.    the power to return the First Submission only arose if those parts of the First Submission which consisted of ‘submissions’ exceeded the 5-page limit;

ii.    the Authority incorrectly proceeded on the basis that the ‘5-page limit’ applied to both the ‘submissions’ and ‘new information’ contained within the First Submission;

iii.    the Authority did not determine whether those parts of the First Submission which consisted of ‘submissions’ exceeded the 5-page limit, and if so by how much; and

iv.    the Authority thereby purported to exercise its power to return the First Submission upon an incorrect understanding as to whether the First Submission breached the ‘page limit’ in paragraph 21 and/or as to the extent to which the First Submission breached that page limit; and

iv.    in the premises, by failing to consider submissions and new information contained within the First Submission relevant to whether the Appellant would be at risk throughout Pakistan and/or whether he could reasonably relocate to Pakistan.

i.    If the Authority had not erred in the respects identified in paragraph (h) above, there is a realistic possibility that the Authority could have determined that the Appellant satisfied s 36(2) of the Migration Act, insofar as:

i    the Authority’s misunderstanding of the Practice Direction and/or of the First Submission affected how the Appellant’s representative exercised his right to provide submissions or new information to the Authority (in the Second Submission);

ii     if not for the errors identified above:

i.    the Authority could have proceeded to consider the ‘submissions’ contained in the First Submission in its assessment of whether the Appellant satisfied s 36(2) of the Migration Act; and

ii.    the Authority could have concluded on the basis of those submission that the Appellant faced a real chance of persecution throughout Pakistan     and/or that it would not be reasonable for him to relocate to Pakistan; and/or

iii.    if not for the errors identified above:

i.    the Authority could have proceeded to consider whether the ‘new information’ contained in the First Submission satisfied s 473DD of the Migration Act;

ii.    if satisfied that the new information satisfied s 473DD, the Authority could have considered that ‘new information’ in its assessment of whether the Appellant was eligible for a protection visa; and

iii.    the Authority could have concluded on the basis of the ‘new information’ that the Appellant face a real chance of persecution throughout Pakistan and/or that it would not be reasonable for him to relocate to Pakistan.

j.    in the premises:

i.    the Authority’s decision was affected by jurisdictional error; and

ii.    the Federal Circuit Court erred in not finding that the Authority’s decision was affected by jurisdictional error.

5    Based upon that particularised ground of appeal, the appellant seeks the following orders:

1.    The appeal be allowed.

2.    The orders made by the Federal Circuit Court on 21 August 2019 be set aside and, in their place, the following orders be made:

a.    A writ of certiorari removing into this Court to be quashed the purported decision of the Second Respondent dated 7 October 2016 (Decision).

b.    An order by way of mandamus that the Second Respondent, differently constituted, reconsider the application for review in accordance with law and any directions of the Court.

3.    The First Respondent pay the Appellant’s costs and incidental to the appeal and the proceedings in the Federal Circuit Court of Australia below.

Notice of contention

6    On 19 May 2020, the Minister filed a notice of contention for the primary decision to be affirmed on the following grounds:

(a)    the Second Respondent was not required, under s 473FB(5) of the Migration Act 1958 to accept the new information or documents in the “First Submission” because, as stated by the Second Respondent and found by the primary Judge at [81]-[82], the Appellant’s representative failed to comply with the applicable Practice Direction at all and especially insofar as it required the matters under s 473DD to be addressed in the submissions (as to which see ABC17 v Minister for Immigration and Border Protection [2018] FCA 254 at [9]-[10] (Allsop CJ);

(b)    the Second Respondent was not obliged to consider the “First Submission” under s 473DD because it did not comply with the Practice Direction and the return of the “First Submission” was an exercise of an antecedent discretion under s 473FB(5) (see DHV16 v Minister for Immigration and Border Protection (2018) 331 FLR 204, [2018] FCCA 349 at [97] (Judge Driver), and as was held by the primary judge at [127]-[131]);

(c)    even if there were non-compliance by the Second Respondent with the Practice Direction with respect to the “First Submission” (which is denied), then any non-compliance was not material and the Appellant suffered no practical injustice in circumstances where the Appellant’s representative provided the “Second Submission”, which was considered by the Second Respondent and the Appellant does not challenge any other aspect of the Second Respondent’s decision (as the primary judge found at [58]).

relevant background

7    Of critical relevance to this appeal is the following background summarised in the Extension Judgment:

4    The applicant provided two separate submissions, respectively dated 18 September 2016 (the First Submission) and 4 October 2016 (the Second Submission), to the Authority in support of the review of the delegate’s decision. The First Submission was 97 pages long.

5    By letter dated 21 September 2016, emailed to the applicant’s then lawyer, the Authority stated that it was returning the First Submission, and wrote further:

You acknowledge your 97 page submission fails to comply with Practice Direction 1 issued by the President of the AAT. It exceeds the 5 page limit. We are returning the submission to you to allow you to provide a concise submission which identifies the issues and that complies with the Practice Direction. Although you identify your Code of Conduct obligation to act in the best interest of your client as justification for providing a non-compliant submission, the President has issued this Practice Direction in recognition of the fast-track nature of the limited review conducted by the IAA. Any written submission you provide to the IAA for your client should comply with the Practice Direction.

Much of your submission is country information not before the Department of Immigration. It therefore is new information. The further statement of your client and the attachments thereto may also be new information. Your submission also does not comply with the Practice Direction requirement that you provide an explanation as to why any new information your client may give to the IAA is information that could not have been given to the Department of Immigration before the decision was made, or is credible information which was not previously known and may have affected consideration of your client’s claims had it been known.

We will allow you until 03 October 2016 to provide a revised submission which complies with the Practice Direction. If you do not comply with that deadline, the Practice Direction sets out the IAA will make a decision without the benefit of your submission.

…

24    The applicant’s claim before the primary Judge can be summarised as follows:

(1)    The Practice Direction does not impose a page limit on the provision of new information by a visa applicant, and should not be construed as imposing such a page limit.

(2)    Although the Authority recognised that much of the First Submission set out new information, it nonetheless rejected the First Submission for the stated reason that it exceeded the 5 page limit set out in the Practice Direction. In so doing, the Authority misinterpreted and misapplied the Practice Direction.

(3)    The Authority, having misinterpreted and misapplied the Practice Direction, fell into jurisdictional error because it failed to consider whether it could take into account the new information pursuant to s 473DD of the Migration Act.

…

26    In relation to the first and second aspects of the applicant’s claim before the Federal Circuit Court, the primary Judge at [42] noted that if the Authority’s letter was to be read as imposing a generic 5 page limit, then that could reveal a misunderstanding of the Practice Direction, which does not place any page limit on the provision of new information. The limitation on new information imposed by the Practice Direction related to the provision of an explanation as to why the Authority should consider the new information.

27    The primary Judge at [91]-[94] found that the correspondence from the Authority in relation to the First Submission did not evidence any misinterpretation of the Practice Direction by the Authority. The correspondence, in effect, mirrored the relevant paragraphs of the Practice Direction. When the Authority’s letter was read in context, the 5 page limit plainly related to the submission identifying the issues, not to any new information provided. The Authority’s statement in the correspondence regarding the provision of new information correctly requested that such information be explained as required by the Practice Direction.

28    In relation to the third aspect of the applicant’s claim before the Federal Circuit Court, the primary Judge noted that, under s 473DC(2) of the Migration Act, the Authority is under no duty to accept new information.

29    His Honour observed at [73] that the First Submission could be characterised as an “incredibly long list of unexplained references to country information sources, other than for some general and short, restatement of the applicant’s claims to fear harm”. The applicant gave no explanation as to why any new information – which was not identified – could not have been given to the delegate, or was credible personal information not previously known. The primary Judge found that the Authority was not obliged to turn its mind to s 473DD of the Migration Act in circumstances where the applicant had failed to specify which information in the First Submission was before the delegate, and that which was new information.

Submissions of the parties

8    In summary, the appellant submitted:

    The First Submission was not 97 pages of “submissions” in the sense in which that term is used in paras 20, 21 or 23 of the Practice Direction.

    Most of the First Submission was comprised of “new information”.

    The First Submission alternated between parts that were “submissions” and parts that were “new information”. The Practice Direction does not require the two types of information to be separated.

    The Authority was required to determined which parts of the First Submission were “submissions” and which parts were “new information” before determining that the document breached the page limits under paras 20 and 23 of the Practice Direction, and before determining to return the document under para 21 of the Practice Direction.

    The primary Judge erred in finding that the Authority’s characterisation of the First Submission was “no more than to characterise the document in the same terms used by the [appellant]’s representative”.

    The Authority stated that it returned the First Submission because “[i]t exceeded the 5 page limit”, pursuant to para 21 of the Practice Direction. However, the restriction in para 21 only relates to “submissions”.

    As the primary Judge correctly observed at [42]: “If the [Authority’s] letter [of 21 September 2016] is to be read as imposing a generic comprehensive or ‘strict’ five-page limit then such a reliance could reveal a misunderstanding of the Practice Direction as the applicant contends in the current proceeding”. The primary Judge was wrong to reject that construction of the letter and the Authority’s decision. The phrase “it exceeded the 5 page length limit” is clear and permits no other construction.

    The better reading of the Authority’s letter and decision, is that the Authority exercised its power under para 21 of the Practice Direction as it returned the First Submission because it thought it was a “submission” which was 92 pages in excess of the relevant page limit. The Authority proceeded on the misunderstanding that the 5 page limit applied to the entirety of the First Submission.

    The error of the Authority can be characterised in several ways:

(a)    The Authority failed to determine which parts of the First Submission consisted of “submissions” and which parts consisted of “new information”, and whether the “submissions” exceeded the 5-page limit.

(b)    The Authority applied a blanket page limit to the First Submission, erring in how it determined the First Submission did not comply with the Practice Direction, and that it had the power to return the First Submission.

(c)    The Authority erred in deciding to return the First Submission.

(d)    The Authority failed to consider the submissions and new information in the First Submission which was relevant to the Authority’s decision.

    The Authority’s error was material to its decision that the delegate’s decision should be affirmed in the following ways:

(a)    The Authority wrongly thought that it could return material provided by applicants unless that material was of a certain length and within certain restrictions. This error affected how the appellant exercised his right to make submissions and provide new information.

(b)    The First Submissions contained “submissions” – relevant to the basis on which the appellant’s claims were refused – which the Authority did not take into account. The submissions were capable of affecting the Authority’s assessment of whether the appellant could safely and reasonably relocate to Lahore.

(c)    The First Submission contained “new information” which the Authority did not proceed to consider pursuant to ss 473DD or 473FB(5) of the Migration Act. Some of the new information post-dated the delegate’s decisions and was relevant to the security situation in Lahore. The information could have affected the Authority’s conclusion in relation to the safety of the appellant relocating to Lahore.

9    In relation to the Minister’s notice of contention, the appellant submitted, in summary:

    The Practice Direction was issued pursuant to s 473FB of the Migration Act, but that does not mean that the Authority’s ability to return submissions under [21] of the Practice Direction was an exercise of power under s 473FB(5), or that the Authority exercised power under s 473FB(5) when it returned the First Submission.

    Section 473FB(5) of the Migration Act permits the Authority not to accept new information or documents from a person where the person fails to comply with a relevant direction. Paragraph [21] of the Practice Direction permits the Authority to return “submissions” that do not comply with a specific requirement of the Practice Direction. Both discretions are hence enlivened by different circumstances.

    The better interpretation of relevant events is that, when the Authority returned the First Submission, it did so by exercising its power under [21] of the Practice Direction and not under s 473FB(5) of the Migration Act.

    Ground (c) of the notice of contention should be rejected, as the Authority’s conduct misled the appellant into refraining from taking up an opportunity to be heard: MIBP v WZARH (2015) 256 CLR 326 at [59]; BXP16 v MICMSMA [2020] FCA 530 at [72]. The primary Judge was wrong to conclude the contrary.

10    The Minister relevantly submitted, in summary:

    There is no jurisdictional error in the Authority’s decision, as the primary Judge found, because the Authority did not misinterpret or misapply the Practice Direction.

    The primary judgment should also be upheld on the basis that the Authority was not obliged, under s 473FB(5), to accept the first 97-page document as it did not comply with the Practice Direction (for the reasons the Authority explained) and its return of that document was an exercise of the antecedent discretion under that provision.

    The letter from the Authority dated 21 September 2016 must be read as a whole.

    The appellant’s representative characterised the Second Submission as a document that “did not include all of the ‘submissions’ contained in the” First Submission.

    As the primary Judge found, it was “reasonably open to” and “appropriate for” the Authority to return the First Submission when it made no attempt to comply with the requirements of the Practice Direction (and, indeed, deliberately flouted them).

    The Authority’s correspondence of 21 September 2016 and its reasons for decision reflect the correct understanding of the Practice Direction and the differences between submissions, new information and explanations.

    Having regard also to the Second Submission, it appears that any error in understanding the practical and proper effect of the Practice Direction lay with the appellant’s representative, and not with the Authority.

    The appellant’s argument that the Authority must sift through a document provided (irrespective of that document’s length, contents, arrangement or presentation, or where it is apparent that the document does not comply, in whole or in part, with a relevant Practice Direction) would render s 473FB(5) of the Migration Act practically nugatory. Section 473FB(5) of the Migration Act ––which relevantly provides that the Authority is not required to accept new information or documents from a person if the person fails to comply with a relevant direction that applies to the person––provides an antecedent discretion whether to embark upon consideration of s 473DD of the Migration Act.

    It is clear from the Authority’s letter of 21 September 2016 that it was not using the word “submission” in a strict technical sense as seen from the different ways in which the word “submission” is deployed throughout the letter, namely:

(a)    by the adoption of the term used by the appellant’s representative;

(b)    by the notation that the “submission” also comprises “new information”;

(c)    by the identification of the non-compliance with the Practice Direction insofar as it requires an explanation to be given with respect to the “new information”; and

(d)    by the invitation to provide a revised “submission” and an “additional submission”.

    The appellant does not challenge the Authority’s identification of the non-compliance with the Practice Direction insofar as it requires an explanation to be given with respect to “new information”.

    Having regard to the purpose of the Practice Direction, the admitted non-compliance by the appellant’s representative, and the additional identified non-compliance with the Practice Direction, it was open to the Authority not to accept the First Submission and to return it.

    As his Honour said, the point had not been reached where the Authority “was required to separate ‘the wheat from the chaff’”. This is consistent with the position under s 473FB(5) and the reasonable exercise of the antecedent discretion under that provision.

    The Authority did not affect how the appellant responded. As the primary Judge found, any error in understanding the practical and proper effect of the Practice Direction lay with the appellant’s representative.

    If the appellant’s representative had been operating under a misapprehension said to be caused by what the Authority said, then that could have been the subject of direct evidence from the representative. No such evidence was adduced.

    The submissions that the appellant contended the Authority failed to take into account by returning the First Submission were effectively restated in the Second Submission and the substance of those submissions were addressed by the Authority in its consideration of relocation, about which no separate complaint is made.

    The two pieces of country information that post-dated the delegate’s decision address, in substance, the state of affairs before the delegate’s decision, but, in any event, the substance of the country information was addressed by the Authority in its consideration of relocation.

consideration

Relevant legislation and Practice Direction

11    The provisions of the Migration Act of particular relevance to the proceedings before the Court are s 473DD and s 473FB(5). Section 473DD of the Migration Act relevantly 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.

12    Section 473FB of the Migration Act relevantly provides:

Practice directions

…

(5)     The Immigration Assessment Authority is not required to accept new information or documents from a person, or to hear or continue to hear a person at an interview, if the person fails to comply with a relevant direction that applies to the person.

13    The Practice Direction the subject of the appellant’s contentions is also central to the determination of this appeal and materially provided at the relevant time as follows:

Practice Direction for Applicants, Representatives and Authorised Recipients

This direction is given under section 473FB of the Migration Act 1958 (Migration Act).

About this direction

1.    The Immigration Assessment Authority (IAA), in carrying out its functions under the Migration Act, is required to provide a mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3 of Part 7AA of the Migration Act.

2.    The President of the Administrative Appeals Tribunal (AAT) may give directions as to the operations of the IAA and the conduct of reviews by the IAA.

3.    This direction sets out the requirements to be followed by applicants (you) and their representatives and authorised recipients when dealing with the IAA (us).

4.    In this Direction:

Department means the Department of Immigration and Border Protection

writing and correspondence include email.

5.    This direction has effect from 2 May 2016.

6.    The Practice Direction for Applicants, Representatives and Authorised Recipients executed on 16 September 2015 is revoked.

…

Submissions and new information

20.    For the purposes of the review, you may provide a written submission on the following:

•    why you disagree with the decision of the Department

•    any claim or matter that you presented to the Department that was overlooked.

21.    Any submission must be concise. It should identify and address the issues you want us to consider in our review. Your submissions should be no longer than 5 pages and should be provided to us within 21 days of your case being referred to us by the Department. We may return longer submissions. If we return your submission we will give you a short deadline by which to provide a revised submission that complies with this direction. If you do not comply with that deadline we will make our decision without the benefit of your submissions.

22.    We can only consider new information (information that was not before the Department) in very limited circumstances as set out in section 473DD of the Migration Act. We must be satisfied that there are exceptional circumstances to justify considering the new information provided by either you or the Department.

23.     If you want to give us new information, you must also 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 your claims, had it been known.

24.    Your explanation should be no longer than 5 pages and must accompany any new information you give to us.

25.    All documents that are not in English should be translated into English by a translator with a ‘Translator’ level accreditation from the National Accreditation Authority for Translators and Interpreters (NAATI). Both the documents and the translations should be provided.

26.    Any new information you give to us that we have not requested of you, must be given to us within 21 days of the date on which your case was referred to us by the Department. Any new information given to us by the Department that has not been requested, must also be given to us within 21 days of the referral.

14    In summary, and against the background of this legislation, the appellant claimed that the Authority erred in refusing to consider the appellant’s First Submission dated 18 September 2016.

Content of the First Submission

15    Examining the First Submission, the appellant’s representatives wrote, materially, as follows:

…

We note that the Practice guidance requests the applicant or his representative to forward submission no longer than 5 pages. However, we note that the case officer has refused the application on that there is no real chance of the applicant being seriously harmed in [sic] by Sunni militias or terroririst [sic] groups. We note that Code of Conduct of the Migration Agents Authority obligates the Agents to act in the lawful interests of the clients. We submit that it is an obligation of the Agent to provide sufficient corroborative country information in support of the applicant’s claim addressing the issues including why internal relocation in not a reasonable option in the applicant’s case. We also note that the applicant did not have immigration legal representation at the DIBP interview stage and therefore, he should be given an opportunity to present his submission addressing the issues adequately. Accordingly, we submit that our submission should be accepted though it is longer than five pages.

16    The appellant’s representatives then requested that the Authority provide a particular report to them in order to allow submissions to be made. They further submitted that the appellant was a Turi Shia, and that this was a “significant aspect of claim in his protection visa matter and the DIBP failed to look into this aspect of claim and failed to ask relevant questions and failed to consider relevant considerations in relation to the above aspect of his claim.” The appellant’s representatives submitted that, in light of the alleged failure of the decision maker to assess the appellant’s claim under his Turi ethnic identity, and ask to relevant questions, the appellant should be given an opportunity to present his claims before the Authority.

17    The First Submission then stated that the appellant feared that he would be seriously harmed if he returned to Pakistan because of his ethnic identity (Turi), his religion (practising Shia Islam), his imputed political opinion (holding a political opinion against the Taliban), and his particular social group (namely a young male of the Turi Tribe, living in the West). The First Submission referred to complementary protection obligations, and submitted that there was no meaningful option for the appellant to relocate or obtain effective protection from the Pakistan authorities in Pakistan.

18    Following these statements, the First Submission then set out lists of material, under the following headings:

    Reports and Statements on political and security situation in Parachinar in Kurram Agency in Pakistan, and specific to the problems of Turi (12 items);

    Reports and Statements on persecution against religious minorities and in particular against Shia’s [sic] in Pakistan (35 items);

    Recent Reports and Statements from recognised Independent sources on persecution against religious minorities and in particular against Shia’s [sic] in Pakistan (15 items);

    Islamic extremism in Punjab, particularly in Lahore (7 items);

    Terrorist network and activities in Lahore (11 items);

    Influence of Sunni Islamic extremist in Multan (4 items);

    Recent Reports and Statements on persecution against Shia intellectuals (11 items);

    News and statements on the escalation of Sunni-Shia tension in the Middle East, its links with the Pakistani Taliban and the serious consequence the Shia minorities in Pakistan in a foreseeable future (7 items);

    Influence and network of Islamic terrorists in Pakistan (13 items);

    Recent Background Articles and reports on the general human rights situation in Pakistan (5 items);

    Relevant RRT Country Advice Reports (9 items);

    Recent RRT Decisions on Pakistan on persecution against Turis (21 items); and

    Recent RRT Decisions on Pakistan on persecution against Shias (11 items).

19    Following these lists, headings are inserted throughout the balance of the First Submission, with associated expanded lists of material, but also, in some instances, with statements which appear to be contentions of the appellant’s representatives. An example of this technique can be seen under the heading “Human Rights abuses and humanitarian crisis in Northwestern Pakistan and in particular in Parachinar”. After 6 expanded items were listed, the First Submission continued:

7. We submit the following from the forgoing discussion on the recent political and security situation in Parachinar in Kurram agency.

(a) . Turi Shia tribe is one of the tribes in Parachinar in Kurram agency.

(b) . Taliban consider Turi Shia as non-Muslim.

(c) . Turi tribe vehemently opposed Al Qaeda and Taliban and have fought against them.

(d) . Due to the anti-Taliban stands of the Turi, members of the Turi have been targeted.

(e) . There is no effective rule of law in Parachinar in Kurram agency.

(f) . The Pakistan government has no effective control over the Kurram agency region.

(g) . Sectarian violence continues in Kurram agency.

(h) . Frontier Crime Regulation discriminates against Tribes in FATA.

20    Another example appears later in paras 43, 44 and 45 of the First Submission, which appear to be specific contentions by the appellant’s representatives referable to material set out, and such issues as sectarian tension, conflict between Shias and Sunnis in Pakistan, the role of the Taliban, and the prospects for the appellant.

21    This pattern is repeated throughout the First Submission.

Response of the Authority

22    In its letter dated 21 September 2016 to the appellant’s representatives, the Authority relevantly wrote as follows:

The IAA has received your request for access of documents, your submission dated 18 September 2016, your request for an extension of time to provide an additional submission in response to the review material released to your client and your request your client be invited to a hearing.

On 21 September 2016, the IAA released to you the documents you requested, outside of FOI. You and your client have access to the same review material as the IAA. Your client is not therefore at any disadvantage due to the delay in the Department of Immigration processing FOI applications and in those circumstances, the IAA will not await the outcome of your applicant's FOI application to the Department of Immigration before making a decision.

You acknowledge your 97 page submission fails to comply with Practice Direction 1 issued by the President of the AAT. It exceeds the 5 page limit. We are returning the submission to you to allow you to provide a concise submission which identifies the issues and that complies with the Practice Direction. Although you identify your Code of Conduct obligation to act in the best interest of your client as justification for providing a non-compliant submission, the President has issued this Practice Direction in recognition of the fast-track nature of the limited review conducted by the IAA. Any written submission you provide to the IAA for your client should comply with the Practice Direction.

Much of your submission is country information not before the Department of Immigration. It therefore is new information. The further statement of your client and the attachments thereto may also be new information. Your submission also does not comply with the Practice Direction requirement that you provide an explanation as to why any new information your client may give to the IAA is information that could not have been given to the Department of Immigration before the decision was made, or is credible information which was not previously known and may have affected consideration of your client's claims had it been known.

We will allow you until 03 October 2016 to provide a revised submission which complies with the Practice Direction. If you do not comply with that deadline, the Practice Direction sets out the IAA will make a decision without the benefit of your submission.

…

Conclusions

23    I am not satisfied that the Authority constructively failed to exercise its jurisdiction by returning or failing to take into account the contents of the First Submission.

24    First, the Authority was established by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) which commenced on 18 April 2015. As the Explanatory Memorandum accompanying the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 explained, the legislation created a fast track assessment process for relevant applicants, and

introduc[ed] more rapid processing and streamlined review arrangements, creating a different processing model for protection assessments which acknowledges the diverse range of claims from asylum seekers, helping to resolve protection applications more efficiently.

25    It is not in dispute that the Practice Direction was an authorised document properly issued pursuant to s 473FB of the Migration Act. The requirement that submissions of a visa applicant be limited to 5 pages is consistent with the model of fast-tracking applications, established by this legislation.

26    Second, the appellant conceded in the First Submission that the document failed to comply with the Practice Direction. In this respect, the appellant characterised the document as “submissions”. The Authority was entitled to accept the appellant’s characterisation of the document, particularly in light of its length. To that extent, as the learned primary Judge observed at [79], it was “reasonably open to the IAA to return the First Submission to the applicant so as ‘...to allow you to provide a concise submission’…”

27    Third, it is plain that, as a general proposition, the Authority is proscribed by s 473DD of the Migration Act from considering new information unless, in summary, the Authority is satisfied that there are exceptional circumstances to justify considering the new information and an explanation is provided by the visa applicant as to why the new information was not previously provided or known. Insofar as I can glean from the First Submission, the explanation of the appellant for seeking to put such extensive material before the Authority was that:

    It was the obligation of the appellant’s representatives to provide sufficient corroborative country information to support the appellant’s claim and address relevant issues; and

    The appellant did not have immigration legal representation before the delegate, and should be given an opportunity to adequately address relevant issues.

28    It appears from these contentions that, notwithstanding the appellant’s categorisation of the material as “submissions”, the appellant sought to put new information before the Authority within the meaning of s 473DD of the Migration Act. However, to the extent that the appellant sought to do so, the appellant gave no explanation to the Authority referable to s 473DD, in particular why there were exceptional circumstances justifying the consideration of new information, why the information could not have been provided earlier to the Minister, or why it was credible personal information not previously known to the appellant. In this respect I note that “exceptional circumstances” in this context include those which are “unusual or out of the ordinary” (Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; 257 FCR 111 at [104]) or special by reason of their weight, quality or a combination of such related factors (BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958; 254 FCR 221 at [39]-[43] (White J), ELQ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 27 at [12]).

29    Ultimately, however, I agree with the observation of the learned primary Judge at [123] that in circumstances where the appellant’s representatives failed in the First Submission to delineate between what was information before the delegate, what was new information in respect of which the appellant sought to engage s 473DD of the Migration Act, and what was “submissions”, the Authority was not obliged to turn its mind to s 473DD and consider whether it should accept “new information” provided by the appellant.

30    Fourth, and critically, to the extent that the appellant criticised the alleged failure of the Authority to distinguish between “submissions” and “new information”, it is painfully obvious that throughout the 97 page First Submission the appellant himself made no attempt to identify material by reference to those categories. As to whether the Authority failed its statutory task in “failing” to do so, I consider that:

    It is incompatible with the Authority’s key function in conducting expedited consideration of visa applications that it be required to undertake the potentially difficult task of distinguishing submissions from new information in a document combining the two, particularly in circumstances where the appellant has not done so.

    It is open to me to infer that the failure on the part of the appellant’s representatives to distinguish between submissions and new information in the First Submission was a calculated attempt to inappropriately blur the categories before the Authority, to avoid the necessity of justifying the inclusion of new information by reference to the criteria prescribed by s 473DD of the Migration Act, and to simultaneously avoid the necessity of complying with the 5 page limit on submissions prescribed by the Practice Direction.

    Notwithstanding the contention of the appellant that the Authority was obliged to differentiate the material in the first submission between “submissions” and “new information”, any such differentiation and categorisation could potentially have been open to immediate challenge, on the basis that it is unclear whether the voluminous amounts of material under various headings and/or in various lists should be considered as “new information” or should be read with the intermittent summations to constitute “submissions”. So, for example, it would be entirely reasonable to read the expanded material in paras 1 to 6 under the heading “Human Rights abuses and humanitarian crisis in Northwestern Pakistan and in particular in Parachinar” with the summation in para 7, such as to constitute a “submission”.

    Even in his notice of appeal the appellant simply pleads that “The First Submission predominantly consisted of ‘new information’, not of ‘submissions’…” The appellant himself in his submissions has not identified which paragraphs of the First Submission are “submissions” and which are “new information”. In such circumstances, I consider it entirely unreasonable that the Authority should have been expected to do so.

31    Finally, I reject the contention of the appellant that the Authority misunderstood either the Practice Direction or the First Submission.

32    In my view the appropriate order is to dismiss the appeal, with costs to be taxed if not otherwise agreed.

Associate:

Dated:    16 April 2021