Federal Court of Australia

CGX19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 1145

ORDERS

THE COURT ORDERS THAT:

(1)    The appellant have leave to rely on grounds 1-3, 5 and 6 of his notice of appeal.

(2)    The appeal be allowed.

(3)    The orders of the Federal Circuit Court of Australia made on 26 February 2020 be set aside, and in lieu thereof it be ordered:

(a)    a writ of certiorari issue to the Immigration Assessment Authority quashing the decision made on 16 May 2019 to affirm the decision of the delegate to refuse CGX19 a Safe Haven Enterprise visa (“the delegate’s decision”);

(b)    a writ of mandamus be issued to the Immigration Assessment Authority requiring it to exercise the power under s 473DD of the Migration Act 1958 (Cth) and to review the delegate’s decision according to law.

(4)    On or before 4pm on 4 October 2023 the parties file and serve submissions on the costs of the appeal (limited to 2 pages).

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

REASONS FOR JUDGMENT

KENNY J:

1    This is an appeal from a judgment of the Federal Circuit Court of Australia delivered on 26 February 2020, dismissing an amended application for judicial review of a decision of the Immigration Assessment Authority (“the Authority”). The Authority affirmed the decision of a delegate of the respondent Minister to refuse the appellant a Safe Haven Enterprise visa (“protection visa”). The primary judgment has the citation CGX19 v Minister for Immigration & Anor [2020] FCCA 421 (“PJ”).

2    Since he was out of time, the appellant filed an application for an extension of time regarding his appeal and a supporting affidavit in early April 2020. On 4 June 2020, a Registrar of the Court ordered, by consent, that the draft notice of appeal accompanying the supporting affidavit be treated as the appellant’s notice of appeal. On 12 April 2022, the Court ordered that “[t]he time within which the appellant be permitted to file a notice of appeal be extended to 12 April 2022 and that the notice of appeal annexed to the appellant’s affidavit dated 3 April 2022 be taken to have been filed on that day”.

3    The appellant was legally represented throughout the proceeding in the Federal Circuit Court and in this Court until 11 February 2022. He has been self-represented in this Court since that date.

4    For the following reasons, I would allow the appeal.

BACKGROUND

5    The appellant is a citizen of Bangladesh and a Sunni Muslim. He arrived in Australia by boat in August 2013 as an unauthorised maritime arrival under the Migration Act 1958 (Cth) (“Migration Act”). An officer of the Minister’s Department interviewed the appellant on Christmas Island on 30 August 2013 and on 22 November 2014. The appellant is recorded as saying that he left Bangladesh because he was a supporter of the Bangladesh Nationalist Party (“BNP”). Subsequently, by letter dated 20 September 2016, the Department invited him to apply for a protection visa upon the basis that the Minister, in exercise of the discretion in s 46A(2), had lifted the bar created by s 46A(1) of the Migration Act.

6    On 18 May 2017, the appellant applied for a protection visa with the assistance of a migration agent. In an accompanying statutory declaration dated 15 May 2017 the appellant stated that he left Bangladesh because of political issues. He stated that he, his father and most of the people in his village were persecuted because they supported the Bangladesh Jatioabadi Chatro Dal Party (“BJC”), a party that supported the BNP. The appellant claimed that he and his father had attended public meetings and that, at these meetings, his father had been violently attacked by supporters of the Awami League, which was the governing political party at the time. The appellant stated:

The other locals who belonged [to] or supported the governing Awami League would target these meetings and confront each other. It was in these meetings that my father would be beaten. They would turn up with sticks, hockey sticks, big knives like machetes. There would be 40 or 50 attackers who would turn up. I witnessed some of these attacks myself.

7    The appellant also said that his brother, an office-holder in the BJC, was targeted by Awami League supporters. He said that his brother had attended “a big gathering and demonstration with his party”, where he “was caught by government supporters and beaten by them and the police”. The appellant stated that his brother had been arrested and detained in prison in Dhaka.

8    After his brother was arrested, the appellant stated that he was “very scared and anxious”, especially after his father fled Bangladesh. He said that his brother was still in prison at that time. When he attended a demonstration after his father had left, he was “attacked by local members of the government party”. He said that shortly after this, he decided to leave Bangladesh. He said that since leaving the country “[a] lot of my friends ... have been beaten or jailed because they have been caught up in the restrictions on opposition groups and meetings”. He also said that the police could not protect him and that it would be difficult to find another place in Bangladesh where he would be safe. Finally, the appellant said that he feared that he could be jailed “because [his] name appeared in [the] list of asylum seekers” that the Department had made public.

The Delegate’s Decision

9    The appellant attended an interview to discuss his application on 6 December 2017. The appellant’s migration agent subsequently made further representations to the Department by letter dated 13 December 2017. These representations included country information. By letter dated 2 April 2019, the delegate notified the appellant that his protection visa application had been refused.

10    The delegate accepted that the appellant “has a family history of supporting [the] BNP; attending group meetings; and rallied to support the BNP” and that it was “plausible” that he was “involved with the BNP, as a low to moderate supporter”. The delegate was not satisfied, however, that the appellant “held a high political profile in his local area or was a political activist for the BNP in Bangladesh”. The delegate did not accept the appellant’s claim that he and other members of his family had been “black listed for travel”.

11    The delegate also considered the appellant’s involvement in the BNP while residing in Australia, noting that the appellant said that he did not attend group meetings because they were held in Sydney. The delegate concluded that:

His participation with BNP in both Bangladesh and in Australia, do not reflect what I would expect a political activist or a prominent member in the BNP to partake in. Once again, I would expect a greater level of detail of participation in relations [sic] to day to day political activities for the party, and greater responsibility in leading events rather than taking directions and orders from others, from someone claiming to have a high political profile.

The delegate did not accept the appellant’s “testimony in regards to him being targeted by the A[wami] L[eague]”. The delegate concluded that he was just “one of a number of people involved in an altercation in a public place which [was] more indicative of generalised violence than being individually targeted”.

12    The delegate referred to the country information in 2017 and 2018 DFAT reports, which led the delegate to conclude:

The country information ... indicates that there has been arrests, torture and forced disappearances of high level BNP supporters and that BNP protesters have also been harmed. However, it also indicates that in the current Bangladesh political climate, in the lead up to the national election, ordinary supporters are generally neither at risk of harm nor at risk of violence on a day-to-day basis due to their political affiliation. Ordinary members or supporters who engage in political activities and demonstrations face an elevated risk. While I have accepted that the [appellant] is a member of the BNP, I have not accepted that the applicant is a high profile member or politically active to a level that would draw adverse attention from opposition political parties. His level of involvement in political activities in Bangladesh and his activities in Australia have not been at an active level or at a level to draw adverse attention to himself from the opposition political party.

13    The delegate referred specifically to country information about the national elections in Bangladesh in December 2018 before concluding that:

The country information ... indicates that there has been arrests, torture and forced disappearances of high level BNP supporters and that BNP protesters have also been harmed. However, it also indicates that in the current Bangladesh political climate, in the aftermath of the 2018 national election, incidences of PMV have been relatively modest. The reports suggest that ordinary supporters are generally not at risk of harm or at risk of violence on a day-to-day basis due to their political affiliations. Ordinary members or supporters who engage in political activities and demonstrations face an elevated risk.

... Even if I were to accept that he will engage in political activities upon return to Bangladesh, given the sheer number of ordinary members and supporters of the BNP party, increased participation in political activities in times of heightened political tension, variations on the level of violence and risk according to location and timing together with the [appellant’s] low-level political profile, the chances of him being specifically targeted during political activities is likely to be low.

On the basis of the evidence before me, as an ordinary member with a low political profile, I am not satisfied that the applicant has such a profile that would cause him to come to the attention of the A[wami] L[eague] or affiliated organisations. ...

14    Accepting that the appellant would be considered a failed asylum seeker on return to Bangladesh, the delegate was not satisfied that there was a real chance that he would be penalised on his return, or face any other harm as a consequence of his illegal departure or having sought asylum in Australia. As a consequence, the delegate was not satisfied that he faced a real chance of persecution by reason of his illegal departure or being a failed asylum-seeker.

15    While the delegate accepted that the appellant had been affected by the Departmental data breach in February 2014, the delegate found that he did not face a real chance of harm on this account.

16    Having regard to these findings, the delegate was not satisfied that the appellant faced a real chance of persecution on return to Bangladesh. Nor was the delegate satisfied that there were substantial grounds for believing there was a real risk that he would suffer significant harm if returned there. The delegate declined to grant the appellant a protection visa on the basis that he did not meet the criteria in s 36(2)(a) or (aa) of the Migration Act.

17    The appellant was notified by letter dated 8 April 2019 that the delegate’s decision had been referred to the Authority for review.

The Authority’s Decision

18    By letter dated 3 May 2019 the appellant’s migration agent made submissions to the Authority with respect to what the agent described as new information and other submissions concerning the delegate’s findings based on country information. Various documents accompanied the 3 May 2019 letter, including the appellant’s 2 May 2019 statutory declaration, country information, documents regarding the appellant’s involvement with the BNP in Australia, and his Facebook activity.

19    The Authority advised the appellant by letter dated 16 May 2019 that it had decided to affirm the delegate’s decision not to grant the appellant a protection visa.

20    In making its decision, the Authority accepted that, in so far as the information in the appellant’s 2 May 2019 statutory declaration (see [4(a)] of its reasons) “post-dates” the delegate’s decision, it could not have been provided to the delegate. The Authority noted, however, that “the recent claims are not consistent with evidence previously provided by the applicant on this specific point”. In this connection, the Authority said that:

The applicant has consistently stated since arrival in Australia that he was not a member of the BNP in Bangladesh and in his statutory declaration of May 2017 notes that his brother was joint Secretary of the JCD (referred to as BJC). He makes no mention of any JCD position held by himself in Bangladesh. When specifically asked by the delegate on 6 December 2017 whether he had been involved with the BNP in Australia the applicant initially stated that “I am out of my country so now how can I support?”, then added that he had attended a BNP meeting in 2016 in Sydney. When then asked of any other involvement with the BNP in Australia the applicant stated that “there is no such committee in South Australia”. The applicant now claims to have been a member of BNP Australia since 2013, to have previously been an executive member and since August 2018, a Joint Convener of BNP SA.

Regarding the letters dated 28 January 2019 and 28 April 2019, identified at [4c] and [4d] of its reasons, the Authority also noted that they were inconsistent “with the evidence [the appellant] provided between 2013 and 2017 as to his political activities since arrival in Australia”.

21    In relation to all three documents, the Authority concluded they did not meet the criteria in s 473DD of the Migration Act, and thus the Authority could not consider them. The Authority stated that:

[I]nclusion of the new claims and supporting documents may lead to adverse conclusions regarding [the appellant’s] credibility. I am not satisfied that there are exceptional circumstances to justify their consideration.

22    Further, since the Authority was not satisfied that s 473DD applied to permit it to consider the photograph and airline booking record identified at [4(b)] and [4(e)] of its reasons, it could not consider them either.

23    The Authority also noted the appellant’s statement “that he was not aware that his on-line activities were relevant to his protection claim until advised by his current legal representative” was inconsistent with what he said during his interview with the delegate, where the delegate had “directly asked” him “whether he had been involved with BNP issues on-line” and the appellant had responded “I read the newspapers”. The Authority inferred that this meant that “he was not active on-line”. The Authority was not satisfied that the Facebook screenshots (identified in its reasons at [4(f)]) “could not have been provided to the delegate or that they comprise credible personal information which may have affected consideration of his claims”. The Authority concluded that “[a]s neither limb of s 473DD(b) is met I have not had regard to the new information”.

24    The Authority declined to exercise its discretion under s 473DC of the Migration Act to get new information from the appellant by way of interviewing him. It rejected a submission made on the appellant’s behalf that certain identified reports were available to the delegate (and therefore not “new” information in the statutory sense) because they were “available on the internet, or may be on CISNET”. Further, with one exception, the Authority was not satisfied that there were exceptional circumstances (within s 473DD) “justifying the consideration of these new reports/articles”: see [12] of the Authority’s reasons. The exception was the document referred to by the Authority as the “Odhikar report”, as to which the Authority stated (at [13]):

The Odhikar report post-dates the delegate’s decision and could not have been provided to her. In her decision, the delegate references the Odhikar Human Rights Monitoring Report for August 2018. Ms Rutherford references the April 2019 report in support of the contentions that in the first three months of this year authorities have been reported to attack opposition parties, that political activists have attacked and vandalised the houses of BNP, JCD and Juba Dal workers, that voter intimidation by the A[wami] L[eague] is ongoing and that the A[wami] L[eague] carries out violent and oppressive behaviour without consequence. The report in question contains comprehensive detail on the current human rights situation in Bangladesh and I am satisfied that special circumstances justify its consideration.

25    Under the heading “Factual findings”, the Authority accepted that the appellant and his family had supported the BNP, but concluded that he had not “bother[ed] to register” to vote in Bangladesh: see Authority’s reasons at [17]. The Authority also accepted that the appellant “attended many local events for BNP supporters and country information supports that violence between supporters of the BNP and of the A[wami] L[eague] was at that time commonplace”. It accepted the appellant’s evidence that he was “punched and hit with a stick” on one such occasion, but rejected his later claim that there were fatalities to be an “embellishment made solely for the purpose of [his] protection visa application”. The Authority added (at [18]):

The applicant remained in his home for a further month after this event; he has not indicated that there were any further actions against him by A[wami] L[eague] supporters and I find there were not. I conclude that the applicant was not of any interest to A[wami] L[eague] activists or supporters.

26    The Authority rejected (at [19]) the appellant’s claims that his family was “blacklisted” on the basis that he had “provided no evidence at all to support any claim of blacklisting”. Regarding the appellant’s claims about the targeting of his brother, it further stated (at [20]):

Due to the variations in the evidence I am not satisfied that the applicant’s brother was targeted or gaoled for a prolonged period. I accept that he was arrested and gaoled due to taking part in a demonstration and released after the applicant’s mother paid a bribe. I conclude that after this event he remained in the family home. I do not accept that the applicant’s family were targeted due to their support of the BNP or any membership of the BNP or JCD.

27    In summary, although the Authority accepted (at [24]-[25]) that the appellant supported the BNP’s policies and had attended local meetings when invited and “that he was assaulted by A[wami] L[eague] members or supporters during a confrontation in 2013”, it also noted (at [25]) that the appellant had not claimed to “have encountered any other incidents of harm in the past due to his political views and activities”. Further, it did not accept that his family had been “targeted due to their political views” and “found that the [appellant] was and is of no interest to A[wami] L[eague] activists, members or supporters”: reasons at [25]. The Authority concluded (at [25]) that:

The country information does not support the conclusion that the [appellant] would face a real chance of harm from politically motivated violence in his home area, if he continues to support the BNP in the future in the same way that he did in the past.

28    The Authority rejected the appellant’s claims that he faced a real chance of harm on his return to Bangladesh on the basis that he departed the country illegally, noting that “[t]here is no information in any of the material before me to support that the Bangladeshi authorities enforce the E[migration] O[rdinance] Act [(1982)] against returning Bangladeshi asylum seekers who left without a passport”. It added that “[t]here is nothing in the material before me indicating any mistreatment of returnee asylum seekers” and referred to DFAT country information to this effect: see reasons at [27].

29    The Authority considered the Departmental data breach, to which the delegate had referred. Accepting that some of his personal information may have been released as a result of the breach, the Authority stated (at [21]):

The applicant contends that the release of this data will lead to his gaoling on return for having spoken negatively about the Bangladeshi government. Details of the applicant’s claims for protection were not part of the report that was released. There is nothing before me to indicate that this information was accessed by the Bangladeshi authorities during the eight days that it remained on-line. ...

30    Ultimately, having regard to these matters, the Authority concluded that the appellant did not meet the criteria in s 36(2)(a) or s 36(2)(aa) of the Migration Act. Accordingly, it affirmed the delegate’s decision to refuse the appellant a protection visa.

FEDERAL CIRCUIT COURT PROCEEDING

31    By consent orders made on 26 June 2019, the matter was fixed for a show cause hearing on 11 February 2020, under rule 44.12 of the Federal Circuit Court Rules 2001 (Cth) (as they were at that date). Rule 44.12 was as follows:

(1)    At a hearing of an application for an order to show cause, the Court may:

(a)    if it is not satisfied that the application has raised an arguable case for the relief claimed—dismiss the application; or

(b)    if it is satisfied that the application has raised an arguable case for the relief claimed—adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or

(c)    without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.

(2)     To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.

32    The appellant subsequently filed an amended application for review, with eight identified grounds.

33    On 11 February 2020 the primary judge made various orders. Omitting the first order correcting the first respondent’s name, these orders were as follows:

...

2.    Leave is granted to the applicant to file in Court and to rely upon the amended  application dated 7 February 2020 and directs that an electronic copy be filed and served on or before 14 February 2020.

3.    The show cause hearing is dispensed with.

4.     The matter is fixed for final hearing at 11:00am on 26 February 2020.

5.     The applicant file and serve any further submissions on or before 21 February 2020.

6.     The first respondent file and serve any further submissions on or before 12:00pm 25 February 2020.

A note to these orders stated that “the hearing will be in relation to ground 7 in the amended application”.

34    The primary judge did not deliver reasons for the above orders (at least not independently of whatever he may have said in court that day) and their intended effect is unclear. His Honour did not provide reasons to indicate whether he was or was not satisfied that any ground set forth in the applicant’s amended application raised an arguable case for the relief. His Honour did not dismiss the application or any part of it pursuant to Rule 44.12(1)(a): see [31]. The primary judge did, however, grant leave to the then applicant to rely on his amended application, with all eight grounds. His Honour also set the matter down for a final hearing, after having “dispensed with” the show cause hearing.

35    I interpolate at this point that Mr Reilly, for the Minister, gave a different account of the hearing on 11 February 2020. He was not present that day, however; and I am unable to reconcile his account with the orders that the primary judge in fact made on that occasion. It is unnecessary to dwell on these differences because in the end nothing really turns on the different appreciations of the outcome of the hearing.

36    Whatever the true position, the parties apparently proceeded on the basis that ground 7 was to be the only ground argued at the final hearing on 26 February 2020, as the note to the 11 February 2020 orders indicated. The note could not, however, take the place of an order to this effect. The 11 February 2020 orders left the fate of the other grounds unclear. I was not shown any record to the effect that his Honour held that none of these other grounds raised an arguable case for relief. Notwithstanding my request at the hearing, the Minister declined to provide the Court with any transcript that might have clarified the position.

37    At the hearing before his Honour on 26 February 2020, the parties addressed their arguments only to ground 7. Having heard argument, the primary judge gave judgment the same day. His Honour’s reasons only addressed ground 7. Notwithstanding this, by orders made that same day, his Honour in fact dismissed the entirety of the application and by implication all the grounds on which it relied. The primary judge’s orders were as follows:

1.    The amended application filed on 14 February 2020 is dismissed.

2.    The applicant pay the first respondent’s costs fixed in the amount of $7,467.00

38    This judgment brought an end to the whole of the proceeding in the Federal Circuit Court, even though there is nothing to show that his Honour ever addressed any ground other than ground 7. The appellant appealed from this judgment.

Reasons of the primary Judge

39    The primary judge commenced his reasons by outlining the appellant’s claims in support of a protection visa, referring to the delegate’s decision, and providing details of the Authority’s decision.

40    Ground 7, the one ground to which the primary judge directed his attention, was as follows:

By failing to provide an intelligible reason for its failure to consider using its powers pursuant to section 473DC of the Migration Act, [the Authority] made a decision so unreasonable that no reasonable person would have made it.

Particulars

a.    In dealing with the “data breach” claim advanced by the Applicant, [the Authority] has made a decision so unreasonable that no reasonable person would have made it by failing to consider utilising its powers pursuant to section 473DC to invite the Applicant to respond to its finding that there was no information before it to suggest that the authorities in Bangladesh had accessed his personal data – despite the delegate having found at [CB 214] to the contrary;

b.    In dealing with the “data breach” claim advanced by the Applicant, [the Authority] has made a decision so unreasonable that no reasonable person would have made it by failing to consider utilising its powers under s 473DC to put the applicant on notice as to country information it held and which were [sic] material to its findings at paragraph [21] of the decision.

41    In his analysis of this ground, the primary judge noted that CGX19 specifically relied on EMJ17 v Minister for Immigration and Border Protection [2018] FCA 1462 (“EMJ17”) and EBY17 v Minister for Immigration and Border Protection [2019] FCA 222 (“EBY17”): PJ at [29], [30]. His Honour held, however, that EMJ17 and EBY17 were distinguishable, because “the facts in each of those cases are clearly different in respect of the reasons of the Authority” in the present case: PJ at [32]. The primary judge held that no error of the kind identified in EMJ17 (see [79] below) had been made by the Authority, and therefore EMJ17 was inapplicable. (I interpolate here that no relevant error was in fact identified in EBY17.) In his Honour’s view, CGX19 had not established jurisdictional error as alleged in Ground 7, and his Honour dismissed CGX19’s application: PJ [36]-[37].

THE APPEAL

42    The appellant’s notice of appeal reiterated each of grounds 1 to 7 as they appeared in the appellant’s amended application for judicial review in the Federal Circuit Court. Only ground eight was omitted.

43    The appellant, who was self-represented at the hearing, did not provide the Court with any written submissions in support of his appeal. The respondent Minister appeared by counsel at the hearing and filed written submissions.

44    The Minister initially submitted that since only ground 7 of the appellant’s amended judicial review application was the subject of his Honour’s reasons for judgment, the appellant could only contest the judgment on that ground. I doubt this is so, given that the orders of the primary judge with which this appeal is concerned dismissed the entirety of the application, with all its grounds, notwithstanding that the primary judge’s reasons addressed only ground 7. There was also some argument about whether it would have been open to the appellant to have sought leave to appeal an interlocutory judgment prior to the “final hearing” on 26 February 2020. The difficulty facing a potential appellant was, however, that since his Honour did not in fact make any orders with respect to any ground at the hearing on 11 February 2020, there was no order (or interlocutory judgment) from which to seek leave to appeal. In the end, it unnecessary to explore this further because the Minister effectively abandoned this position.

45    The Minister’s ultimate position was that grounds 1-3, 5 and 6 (all of which concerned s 473DD) should be treated as if they were new grounds. In this context, Mr Reilly, for the Minister, conceded that it was expedient and in the interests of justice that the appellant be granted leave to raise them, given that the primary judgment predated AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; 269 CLR 494 (“AUS17”).

46    In light of this and to the extent necessary, I would grant the appellant the leave he required to raise grounds 1-3, 5 and 6. In so doing, I have had regard to the Minister’s concession; the course of the proceeding below; the fact that much of the Minister’s argument on the appeal concerned the Authority’s application of s 473DD; and that there is merit in the appellant’s claim in ground 2 that the Authority “applied the incorrect test with respect to section 473DD”. Further, as the Minister acknowledged, the four other grounds the subject of concession also turned to some extent on s 473DD. The same considerations do not apply to ground 4, and I would not grant leave with respect to it.

Minister’s submissions on the appellant’s grounds

47    The Minister made written submissions on grounds 1 and 3, 5 and 6, but, as will become apparent, it is unnecessary to detail them here.

48    On the question whether the Authority had erred in its application of s 473DD, the Minister submitted that the Authority had effectively addressed s 473DD(b)(ii) by outlining its concerns about credibility and effectively addressed s 473DD(b)(i) by noting the date on which the documents had been provided and then commenting that there were no exceptional circumstances. The Minister submitted that the latter comment should be read as a statement that there was no information before the Authority to take these circumstances out of the ordinary. The Minister contended that s 473DD should be read to allow the Authority to reject information at a preliminary stage if it does not consider that the information is credible personal information. Mr Reilly, for the Minister, submitted that it was clear that this is what the Authority had done, because “the [A]uthority has squarely said that [the information] is inconsistent with information that he gave earlier”. The Minister submitted that the Authority’s reasons were “in substance, in accordance with [AUS17] even if they don’t follow precisely the scheme laid out in AUS17”.

49    At the hearing, the Minister further submitted, in relation to ground 5, which concerned airplane tickets, that “it’s hard to see how that can be not credible personal information in the sense of indicating the applicant caught a plane, but evidently, the Authority thought that they weren’t credible in terms of supporting his claim to have been involved in BNP in Australia”. In relation to ground 6, which concerned Facebook entries, the Minister submitted that the Authority, in [8], found that the appellant’s response to the delegate’s question in conjunction with other evidence led to the conclusion that the information was not credible personal information and therefore did not fulfil the requirement in s 473DD(b)(ii).

50    The Minister submitted that ground 7 should fail for the reasons stated by the primary judge.

Consideration

Ground 2

51    I propose to address first the Authority’s application of s 473DD of the Migration Act, because this provision lies at the heart of most of the appellant’s grounds of appeal. It was also at the heart of Mr Reilly’s oral submissions. In so doing, I address the appellant’s ground 2, which specifically asserted that the Authority “applied the incorrect test with respect to section 473DD”.

52    Division 3 of Pt 7AA of the Migration Act governs the Authority’s manner of review. Pursuant to s 473DB the Authority is required to review a “fast track reviewable decision” by considering the “review material” that the Departmental Secretary has sent it: s 473DB(1). The Authority must conduct its review “without accepting or requesting new information” except where the Authority “gets” new information from the referred applicant or another person under s 473DC and “considers” new information under s 473DD.

53    The scheme is most easily understood if ss 473DC and 473DD are read together. Section 473DC provides:

(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.

54    Section 473DD provides:

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 satisfied 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.

55    In this case CGX19 asked the Authority to consider new information in six documents. The Authority described these documents (at [4] of its reason) as follows:

a)    Statutory declaration of the applicant dated 2 May 2019;

b)    Photograph of a meeting which is stated to have taken place on 26 December 2016; the applicant is stated to be in the audience;

c)    Letter to the applicant dated 28 January 2019 from the President of the Bangladesh Nationalist Party Australia;

d)    “To whom it may concern” letter dated 28 April 2019 from the President of the Bangladesh Nationalist Party Australia;

e)    Ticketing details indicating that the applicant plus two others flew from Adelaide to Sydney on 25 December 2018 and returned to Adelaide on 1 January 2019;

f)    Various Facebook screenshots from August 2018 onwards.

56    In their joint judgment in AUS17, Kiefel CJ, Gageler, Keane and Gordon JJ explained how the Authority was to apply s 473DD. Their Honours said at [11]-[12]:

Logic and policy… demand that the Authority assess such new information as it might obtain from the referred applicant first against the criteria specified in both 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 (ii) is met, the Authority is prohibited from taking the new information into account in making its decision on the review. ... 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 s 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 473DD(a) and which must heighten the prospect of that criterion being met.

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 exist without first assessing that information against the criteria specified in both 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). The nature of the non-performance of the procedural duty in such a case is not inaccurately characterised as a failure to take account of a mandatory relevant consideration in the purported application of the criterion in s 473DD(a).

57    Pursuant to s 473DD(b)(i) the Authority must consider whether the referred applicant (here CGX19) has satisfied it that the new information was not, and could not have been, provided to the delegate before the delegate made the decision to refuse to grant the protection visa. Further, pursuant to s 473DD(b)(ii) the Authority must consider whether the referred applicant has satisfied it that the new information: (1) is credible information about an identified individual (or a reasonably identifiable individual); (2) was not previously known by either the delegate or the referred applicant; and (3) had the information been known by either of them, may have affected the consideration of the referred applicant’s claims: see Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 264 CLR 217 (“Plaintiff M174”) at [34]. The final step is for the Authority to consider, pursuant to s 473DD(a) whether it is satisfied that there are exceptional circumstances to justify considering the new information. To quote Gageler, Keane and Nettle JJ in Plaintiff M174 at [30], “[t]he word “exceptional”, in such a context, is not a term of art but “an ordinary, familiar English adjective”: ‘[t]o be exceptional a circumstance need not be unique, or unprecedented, or very rare: but it cannot be one that is regularly, or routinely, or normally encountered’”. In considering this issue, it is proper to take into account the circumstance that the referred applicant has satisfied the Authority of the criterion in s 473DD(b)(i) and/or s 473DD(b)(ii). Having assessed the new information against the criteria in s 473DD and satisfied itself that the new information should be considered under that provision, the Authority must take that new information into account in making its decision on the review if the criteria are relevantly met: see AUS17 at [6].

58    In determining whether the Authority has met these requirements, the Court is not required to engage in a formulaic consideration of s 473DD(b). The Court may be able to infer that s 473DD(b)(i) and (ii) have been satisfied, even if the precise statutory language of those provisions has not been used: APH17 v Minister for Immigration, Citizenship Migrant Services and Multicultural Affairs [2021] FCA 23 (“APH17”) at [79]; also FGI18 v Minister or Immigration, Citizenship Migrant Services and Multicultural Affairs [2022] FCA 57 (“FGI18”) at [27]-[28].

59    In this case, in declining to consider the information as the referred applicant requested, the Authority stated as follows:

5.    Inasmuch as the applicant’s statutory declaration post-dates the delegate’s decision, it could not have been provided to the delegate. In this document the applicant claims that he was the Vice-President of his college’s branch of the Jatiyatabadi Chhatra Dal (the JCD or student wing of the BNP) from 2003 to 2005. He also claims that he has been a member of the BNP Australia since 2013 and that since August 2018 he has held a position of Joint Convener of the South Australian branch of BNP Australia (“BNP SA”). He states that the duties of this position include organising other members of BNP SA, recruitment, communicating with BNP Australia, media contact and discussion of political events in Bangladesh. The 28 January 2019 letter from the President of the BNP Australia is entitled “Appoint As a Joint Convener of BNP South Australia State” and notes that the applicant, who had previously been an executive member, has been appointed joint convenor of BNP South Australia. The applicant claims that he attended BNP Australia meetings in Sydney on 26 December 2016 and 26 December 2018. The documents at (b) to (e) above have been provided in support of this new claim.

6.    In considering whether there are exceptional circumstances to justify considering the new information, I note that the recent claims are not consistent with evidence previously provided by the applicant on this specific point. The applicant has consistently stated since arrival in Australia that he was not a member of the BNP in Bangladesh and in his statutory declaration of May 2017 notes that his brother was joint Secretary of the JCD (referred to as BJC). He makes no mention of any JCD position held by himself in Bangladesh. When specifically asked by the delegate on 6 December 2017 whether he had been involved with the BNP in Australia the applicant initially stated that “I am out of my country so now how can I support?”, then added that he had attended a BNP meeting in 2016 in Sydney. When then asked of any other involvement with the BNP in Australia the applicant stated that “there is no such committee in South Australia”. The applicant now claims to have been a member of BNP Australia since 2013, to have previously been an executive member and since August 2018, a Joint Convener of BNP SA.

7.    Turning to the supporting documents at (b) to (e), the photograph at (b) is that of a number of men holding some sort of meeting. The applicant has not satisfied me that either limb of 473DD(a) applies to this document. The two recent documents from the President of BNP Australia (at (c) and (d)) have been provided in support of the applicant’s current claims which, as noted above, are inconsistent with the evidence he provided between 2013 and 2017 as to his political activities since arrival in Australia. I conclude that inclusion of the new claims and supporting documents may lead to adverse conclusions regarding the applicant’s credibility. I am not satisfied that there are exceptional circumstances to justify their consideration. The airline booking details at (e) show that the applicant and two others spent a week in Sydney in late December 2016. The applicant has not satisfied me that either limb of 473DD(a) applies to this document and I have not had regard to it.

8.    In addition to the statements relating to his BNP, JCD, BNP Australia and BNP SA membership, the applicant states that he has shared and liked on-line material which is critical of the Bangladeshi government. He has provided nine pages of screenshots, five of these pages are dated 6 August 2018, three pages show activity undertaken “yesterday” and one the day that the images were downloaded, which is not stated. The applicant contends in his statutory declaration that he was not aware that his on-line activities were relevant to his protection claim until advised by his current legal representative. At his December 2017 interview, however, the delegate directly asked the applicant whether he had been involved with BNP issues on-line. The applicant’s response to this question was “I read the newspapers”, from which I infer that he was not active on-line. The applicant has not satisfied me that the on-line images could not have been provided to the delegate or that they comprise credible personal information which may have affected consideration of his claims. As neither limb of s.473DD(b) is met I have not had regard to the new information on this issue in the statutory declaration or as described at (f) above.

60    As noted above, CGX19 requested the Authority to consider the information in six documents. The first issue the Authority was required to address was whether CGX19 satisfied it that the new information (as identified in [55] above) was not, and could not have been, provided to the delegate before the delegate made the decision to refuse to grant him a protection visa. This was the criterion in s 473(b)(i). In this context, it worth noting that CGX19 attended an interview with the delegate on 6 December 2017 and that the delegate made the decision on 2 April 2019.

61    The Authority began its analysis with the statement that since the 2 May 2019 statutory declaration came into existence after the delegate’s decision, it “could not have been provided to the delegate”. This might be thought consistent, broadly speaking, with an attempt to address first the criterion in s 473DD(b)(i), in conformity with AUS17.

62    From the outset, however, the Authority did not approach the application of s 437DD as AUS17 required. First, the issue was not whether the statutory declaration “was not, and could not have been” provided to the delegate before 2 April 2019. Rather, the issue was whether the new information that the statutory declaration sought to convey was of this character. I note, in passing, that the statutory declaration evidently contained some information relating to CGX19’s circumstances after his interview on 6 December 2017 and other information concerning his circumstances after the delegate’s decision on 2 April 2019. It also contained information relating to his circumstances at earlier times. It was, however, for the Authority to make its own analysis of the information with respect to the criterion in s 473DD(b)(i).

63    Furthermore, the Authority did not address at this point whether CGX19 satisfied it that the new information conveyed by items (b) – (f) (as identified in [55] above) was not, and could not have been, provided to the delegate before the delegate refused to grant CGX19 a protection visa. The Authority did not examine at any point whether the information in items (b) – (e) met the criterion in s 473DD(b)(i). It addressed this issue with respect to the information at (f) at the wrong stage in its analysis, that is, only at the end of its discussion of whether the new information that CGX19 requested it to consider met the criteria in s 473DD to allow it to do so: see [59] above. In failing to assess all the new information by reference to the criterion in s 473DD(b)(i), and at the correct stage in its analysis, the Authority failed to apply s 473DD according to law as required by AUS17.

64    The second issue the Authority was required to consider was whether CGX19 satisfied it that the new information (as identified in [55] above) was credible information about him (or another reasonably identifiable individual), which was not previously known but, had it been known, may have affected the consideration of CGX19’s claims. The third issue for the Authority was final and separate, in the sense it came last and took account of the outcomes of the Authority’s consideration of the first two issues. This was whether the Authority was satisfied that there were exceptional circumstances to justify considering the new information.

65    The Authority failed to approach these two latter issues in the way laid out in AUS17 and as it should have done. The Authority did not consider the issue of exceptional circumstances after considering the two issues to which s 473DD(b)(i) and (ii) gave rise. Rather, the issue of exceptional circumstances was considered ahead of the issues in s 473DD(b)(i) and (ii). This was a significant departure from what AUS17 was later to hold was the lawful way in which s 473DD was to be applied, and led to further error.

66    In considering the issue of exceptional circumstances in the wrong place in its analysis, the Authority focussed on the fact that “the recent claims” were, in its assessment, inconsistent with the referred applicant’s previous evidence. It was not open to the Authority to approach the issue of exceptional circumstances in this way, however. The Authority not only erred by assessing the issue of exceptional circumstances at this point but also by reference to the consistency of the new information with the material previously before the delegate. As explained at [71] below, in determining whether the criteria in s 473DD were met, the Authority had not yet entered upon the deliberative stage of reviewing the delegate’s decision. Its task with respect to s 473DD was a preliminary one: to determine whether the criteria in s 473DD were met in order that it could consider the new information as the referred applicant requested. Whether the new information was inconsistent with the material before the delegate, and what followed from this if it was, was to be addressed by the Authority in the course of its review: see [71] below. Further, as AUS17 indicated, whether the circumstances were exceptional, in the sense of being out of the ordinary, was a matter for the Authority to address last in its consideration of s 473DD, having regard to the outcome of its consideration of the issues raised by s 473DD(b)(i) and (ii).

67    Having proceeded erroneously with respect to the exceptional circumstances issue, the Authority proceeded erroneously when considering the issues to which s 473DD(b)(ii) gave rise: whether CGX19 satisfied it that the new information (as identified in [55] above) was credible information about him, which was not previously known and had it been known may have affected the consideration of his claims.

68    I note that the Authority did not specifically consider the information in the 2 May 2019 statutory declaration by reference to s 473DD(b)(ii) and the issues to which it gives rise. This was an error, as AUS17 explained. The Authority did, however, apparently address issues of this kind with reference to the information in the documents identified at (b)-(f) in [55] above since it appears that the reference in the Authority’s reasons to s 473DD(a) should be understood as a reference to s 473DD(b), including s 473DD(b)(ii).

69    For the most part, the reasoning supporting the Authority’s conclusion that none of the new information in the documents in (b) to (f) in [55] above satisfied either limb of s 437DD(b) is somewhat opaque. The Authority might have taken the view that some of the information in these documents did not satisfy s 473DD(b)(i) because the documents contained information about events before the delegate made the visa refusal decision in April 2019 and, in consequence, the information could have been provided before the decision was made. If so, the Authority did not clearly identify the items of new information that it found fell into this class. Further, at least some of these documents apparently contained information that post-dated the delegate’s decision.

70    The Authority apparently addressed itself to s 473DD(b)(ii) in examining this later information. In relation to the documents at (c) and (d) in [55] above, the Authority took the view that it should not consider the new information in them because it was inconsistent with the referred applicant’s previous statements and “may lead to adverse conclusions regarding [his] credibility”. Similarly, the Authority apparently rejected the ticketing details at (e) on a similar basis, even though, as the Minister conceded, it was “hard to see how they were not credible personal information in the sense of indicating the applicant caught a plane”. I infer from the Authority’s reasons that it found that the information in the documents at (e) did not meet the criteria in s 473DD(b)(ii) because it took the view that it was inconsistent with the material before the delegate. The Authority took much the same approach to the Facebook screenshots identified at (f), apparently taking the view that the information in this material was inconsistent with the referred applicant’s previous answers to the delegate at his interview in 2017 (and also stating that it was not satisfied that this material could not have been given earlier to the delegate).

71    As already indicated, however, there was a problem with the Authority’s approach in assessing the credibility of the new information by reference to the material that had been before the delegate. In determining whether it was satisfied that the new information was “credible” the Authority was required only to consider whether the information was capable of being believed, and not whether it should be accepted as true. This latter question was for the Authority to consider as part of the deliberative process in the subsequent review of the delegate’s decision, as explained by Bromberg J in CSR16 v Minister for Immigration and Border Protection [2018] FCA 474. At [41]–[42], his Honour said as follows:

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.

The criteria [in s 473DD(b)(ii)] 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.

72    This analysis was recently approved in AZT22 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 90 at [17]-[20]. It has also been applied on other occasions: see, for example, DBX16 v Minister for Immigration and Border Protection [2021] FCA 238 at [107]-[114] and the other authorities there mentioned.

73    In seeking to apply s 473DD(b)(ii), the Authority did not address itself to the correct question: that is, the Authority did not ask itself whether the information was “credible”, in the sense that it was capable of being believed (and leaving aside whether it should be believed, having regard to its consistency with the material before the delegate). Rather, it addressed itself to an issue that could only arise on review if it answered this threshold question in the affirmative. It is only once the Authority is engaged in the review that the Authority can properly address the issue of inconsistency.

74    Lastly, as explained in AUS17, it was only after it had addressed s 473DD(b)(ii) that the Authority was in a position to consider the issue of exceptional circumstances in s 473DD(a) and to factor into this consideration the outcomes of its examination of the two limbs of s 473DD(b). Plainly enough, the Authority addressed the exceptional circumstances issue at too early a point in its analysis and without factoring in these outcomes.

75    I accept that a decision such as this should not be “scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) [1996] HCA 6; 185 CLR 259 at 272. Even allowing for this, I am not persuaded that the errors identified in the present case are comparable to those in APH17 or FGI18.

76    The errors made by the Authority in this case were so fundamental that the Authority failed to address the correct statutory questions, and there was a constructive failure on the Authority’s part to exercise the power conferred by s 473DD. The errors were material. I am satisfied that, as “a matter of reasonable conjecture”, had the Authority addressed the correct statutory questions to which s 473DD gave rise the Authority might have reached a different decision with respect to at least some of the new information, and that this may well have affected the Authority’s decision on review. See MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 273 CLR 506 at [38]; and Nathanson v Minister for Home Affairs [2022] HCA 26; 403 ALR 398 at [32]-[33]. See also AZT22 at [75]-[89]. Accordingly, for the above reasons I would uphold ground 2 of the appellant’s appeal, and allow the appeal.

77    It is unnecessary to address the appellant’s grounds 1 and 3, 5 and 6, which also invoked s 473DD.

Ground 7

78    As to ground 7, which the primary judge considered and rejected, I would make the following general observations.

79    It will be recalled that the primary judge rejected the appellant’s submission that, in discussing the discretion conferred on the Authority by s 473DC to get new information, the Authority made an error of the kind identified by in EMJ17 and EBY17. The appellant in EMJ17 had contended that the Authority erred by proceeding on the basis that it had to be satisfied that there were “exceptional circumstances” before it could exercise the discretion in s 473DC to get new information. The Court accepted this submission. Thawley J held in EMJ17 at [62]:

The Authority’s reasons are to be read in a practical common-sense manner and not be construed with an eye keenly attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-2. The last sentence of A[7] indicates that the Authority approached the task of whether to get new information under s 473DC on the basis that it was required to be satisfied there were “exceptional circumstances” within the meaning of s 473DD. That was erroneous. Whether “exceptional circumstances” exist for the purposes of s 473DD may depend in part on the nature and content of the new information which has been obtained; the question whether to get new information arises before the information has been obtained.

80    The applicant in EBY17 unsuccessfully relied on EMJ17. Bromwich J accepted the correctness of [62] in EMJ17, but his Honour rejected the applicant’s submission that the Authority had committed the same error in his case: see EBY17 at [66].

81    As we have seen, the primary judge also held in this case that no error of the kind identified in EMJ17 had been made by the Authority, and therefore EMJ17 was inapplicable.

82    Reference to the appellant’s ground 7 indicates that it was made in relation to his data breach claim: see [40] above. Notwithstanding this, summary of the argument in support of ground 7 in the primary judge’s reasons at [29]-[31] indicates that the argument presented at the hearing before his Honour departed to an extent from that foreshadowed by the ground set forth in CGX19’s amended application. At the hearing, the issue was whether the Authority erred in considering CGX19’s request that the Authority “consider interviewing” him under s 473DC. CGX19 relied on EMJ17 and EBY17 in support of a submission that the Authority erred in its consideration of whether to exercise the power in s 473DC by indicating that there was a need for it to be satisfied that “exceptional circumstances applied” before the power could be exercised.

83    The primary judge rejected this argument in his reasons at [32]-[36]. His Honour stated as follows:

32.    Notwithstanding the skilful submissions of Mr Bodisco in this regard, the facts in each of those cases are clearly different in respect of the reasons of the Authority. The principle identified is clearly binding on this Court. It becomes a question of a fair reading of the Authority’s reasons as to whether an error of the kind identified by the learned Thawley J in EMJ17 has occurred in the present case by the Authority.

33.    The first respondent submitted that the Authority was identifying in para 9, prior to the concluding sentence, a combination of factors to be taken into account in relation to the general discretion to get information under s.473DC of the Act. The first respondent in that regard made reference to the clear identification of the whole of the limbs of 473DD of the Act in para 3, in the evaluation by the Authority in para 9 and following of the requirements of s.473DD of the Act.

34.    Those reasons clearly identify that the Authority appreciated that s.473DD of the Act was concerned with “considering the new information”. The penultimate sentence, the Court finds in the circumstances of the present case, was that a recitation of a historical factor referable, together with the other factors, to the consideration of the discretion in the use of the reference “I have therefore” and is not supportive of the proposition that the Authority regarded its discretion as requiring the existence of exceptional circumstances before it could be exercised under s.473DC of the Act.

35.    In this regard, the Court considers that the reference by the Authority correctly describing “my discretion under section 473DC to get any new information from the applicant” is entirely consistent with the Authority’s understanding that there was a general discretion. For these reasons, the Court regards each of the cases that have been identified by the learned Mr Bodisco as distinguishable and that this is not a case where the error of the kind identified by the learned Thawley J has occurred.

36.    Accordingly, no jurisdictional error of the kind alleged in ground 7 has been made out.

84    At the hearing of this appeal, Mr Reilly, for the Minister, submitted that “[the] ground was correctly dismissed by his Honour and we agree with his Honour’s reasons”.

85    In this case, the Authority’s reasons relevantly stated:

[CGX19] was represented at the time of his PV application and in the interview with the delegate. I consider that the applicant has had a fair opportunity to provide evidence and put his case in relation to all relevant matters. Further to this, I note that the applicant was advised and notified that it was his responsibility to provide all his information as early as possible and that the [the Authority] would only consider material provided to it by the Department on referral of the decision unless exceptional circumstances applied. I have therefore not exercised my discretion under s 473DC to get any new information from the applicant.

86    The reference to “exceptional circumstances” in the above passage did not, in my view, indicate that the Authority erroneously proceeded on the basis that, in order for it to exercise the discretion conferred by s 473DC to get new information, it had to be satisfied that there were “exceptional circumstances”. Rather, this passage indicates that the Authority declined CGX19’s request for an interview because the Authority considered that CGX19 had already had “a fair opportunity” to provide supporting material. Furthermore, the Authority observed, he had been told of the need to provide his material “as early as possible” and that the Authority “would only consider material provided to it by the Department on referral of the decision unless exceptional circumstances applied”. The reference to “exceptional circumstances” here was, in terms, to a reference to a requirement to be so satisfied before the Authority could “consider” new information under s 473DD, rather than to a requirement to be so satisfied before the Authority could “get’ new information under s 473DC. I accept that, as the Minister submitted, this was not an error of the kind identified in EMJ17.

87    It may be thought that the above analysis draws rather a fine line between permissible and impermissible references to “exceptional circumstances” with respect to the interconnected provisions of ss 137DC and 473DD. It seems to me, however, that at the stage when the Authority is considering whether to exercise its discretion in s 473DC to get new information, it is, as EMJ17 indicates, premature to have regard to any necessarily tentative assessment about whether the new information would lead to it being satisfied that there were “exceptional circumstances” to justify its subsequent consideration. This is principally because the Authority’s satisfaction as to whether there are “exceptional circumstances” to justify it considering the information under s 473DD(a) cannot be reached without having regard to the new information that would be the subject of its consideration. This cannot occur before the Authority has obtained that information.

Disposition

88    For the reasons stated, I would make the following orders:

(1)    The appellant have leave to rely on grounds 1-3, 5 and 6 of his notice of appeal.

(2)    The appeal be allowed.

(3)    The orders of the Federal Circuit Court of Australia made on 26 February 2020 be set aside, and in lieu thereof it be ordered:

(a)    a writ of certiorari issue to the Immigration Assessment Authority quashing the decision made on 16 May 2019 to affirm the decision of the delegate to refuse CGX19 a Safe Haven Enterprise visa (“the delegate’s decision”);

(b)    a writ of mandamus be issued to the Immigration Assessment Authority requiring it to exercise the power under s 473DD of the Migration Act 1958 (Cth) and to review the delegate’s decision according to law.

(4)    On or before 4pm on 4 October 2023 the parties file and serve submissions on the costs of the appeal (limited to 2 pages).

Associate:

Dated:    27 September 2023