Ground 1
11 The appellant submitted that he had made claims arising from his mental health before the delegate and the Authority. He submitted that the Authority did not consider those claims. Further, he submitted that the Authority had determined that information about those claims, contained in the statutory declaration of 23 October 2018, was "new information" which did not satisfy the criteria in s 473DD of the Act such that it not be considered. He argued that, as the mental health claims had been pressed before (and considered by) the delegate, those claims did not constitute "new information" and ought to have been considered without applying s 473DD. Thus the Authority had erred, so he submitted, by failing to consider them and misapplying s 473DD.
12 In their submission of 4 October 2018 to the Minister's delegate, the appellant's lawyers had made reference to "the vulnerability of the applicant" and requested that "significant regard is given to his poor mental health and history of torture and trauma when assessing his evidence". As to the appellant's mental health, no supporting material, even in the form of a statement by the appellant detailing his symptoms, accompanied that submission to the delegate. The appellant had not made any earlier such statement to the Minister's department.
13 In a statutory declaration of 23 October 2018, submitted to the Authority by new lawyers, "Refugee Legal", the appellant stated, at [29]:
29. I have been feeling mentally disturbed recently. I feel depressed, my fears are increasing and I am unable to stop my thoughts. I have been prescribed an antidepressant medication to assist with my symptoms. I have another appointment at 3pm today with a doctor.
14 This information was taken up in the covering submission to the Authority, also dated 23 October 2018, made on the appellant's behalf by Refugee Legal. It was put that "minor inconsistencies relied upon by the delegate were a result of the mental state of the applicant at the time of his entry interview, as well as poor advice he received about the application process". This submission also expressly adopted the earlier submission of 4 October 2018.
15 The relevant paragraph of the Authority's reasons is [5], in which the Authority states, with reference to the submission of Refugee Legal:
5. Included with the submission is a statutory declaration from the applicant. The statutory declaration restates many of the applicant's claims. It also reiterates and expands on the applicant's explanations for not mentioning key aspects of his claims at his entry interview. It provides further explanation for some material, such as the photos, already before the delegate. The applicant also refers to his mental health issues. This is put forward to explain some of the omissions and inconsistencies in the applicant's testimony. In the submission to the IAA, the agent states that "the applicant is suffering from ongoing depression and related symptoms for which he is currently being medicated". In their submission to the IAA, the agent states that this may have affected the applicant's ability to provide this information earlier. The agent does not explain why this would be or provide any evidence of the medication the applicant is asserted to be taking. Similarly, the applicant provides no details in his statutory declaration of the medicine he is taking (nor even its name). There is no evidence from a medical professional attesting to the applicant's medical condition, his program of treatment or the effects of any drugs he is taking. I note that in the submission to the IAA, the agent cites the applicant's lack of English language skills and his unfamiliarity with Australian migration law as the reason why the new information in the statutory declaration was not put forward earlier. However, the applicant was in Australia for almost four years prior to lodging his application, he was represented at his interview with the Department, and his representative made a post-interview submission to the delegate. The applicant had the benefit of a translator in preparing his SHEV application and an interpreter at his SHEV interview. I consider that he had more ample opportunity and assistance to put forward any claims he wished to make in regard to his SHEV application. Given the assistance provided to the applicant during the primary process and the repeated opportunities to provide any new information, I also have serious doubts about the credibility of information set out in the statutory declaration given that it is only now being provided.
16 The Authority then turns, at [6] of its reasons, to the separate subject of the appellant's volunteer work with the Qaim Foundation. Having so done, it states, at [7], "I am not satisfied that there are exceptional circumstances that justify consideration of this information under s.473DD". "[T]his information" is an omnibus reference both to the mental health statements in the statutory declaration as well as to those statements concerning the Qaim Foundation found there.
17 In Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217, at [24] (M174), Gageler, Keane and Nettle JJ, stated that, "The term 'new information' must be read consistently when used in ss 473DC, 473DD and 473DE as limited to 'information' (which may or may not be recorded in a document), in the ordinary sense of a communication of knowledge about some particular fact, subject or event". For the latter proposition, their Honours cited with approval SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214, at [205].
18 The statutory declaration of 23 October 2018 contained, at [29], the first evidentiary material submitted by the appellant, a generalised, lay self-description though it was, for his hitherto only asserted mental condition. The statements in [29] were a communication of fresh knowledge about that fact and therefore "new information". Nowhere in [5] of its reasons does the Authority state that this information is not "new information". Instead, the Authority's assessment of that information is qualitative in terms of when it emerged and its generality and lay assertion features. That assessment is implicitly based on an assumption that the condition described in the statutory declaration is a continuance of the asserted condition referred to in the earlier submission of 4 October 2018.
19 By the time Refugee Legal made its submission and forwarded the additional statutory declaration, less than a month had passed from when the submission was made to the delegate on 4 October 2018. The appellant offered no explanation, either in the statutory declaration of 23 October 2018 or even, via Refugee Legal in the covering letter of that date, why this information could not earlier have been provided to the delegate. Plainly enough, the Authority also had reservations about the utility in any event of the statements made by the appellant in his statutory declaration of 23 October 2018 about his mental health, given their lay quality and generality.
20 Against this background, the Authority was entitled to be satisfied, for the purposes of s 473DD of the Act, that there were no exceptional circumstances justifying its considering that information for the purposes of its review. Given that satisfaction, the Authority was obliged by s 473DD of the Act not to consider that information in conducting its review.
21 What remained then for the purposes of the review itself was an assertion in a submission of 4 October 2018 to the delegate, repeated in a submission of 23 October 2018 to the Authority, that the appellant's mental health condition was explanatory of inconsistencies in the appellant's earlier accounts of his experiences. As did the Full Court in Minister for Immigration and Border Protection v CLV16 (2018) 260 FCR 482, at [53] - [56] (CLV16), we consider that there is a distinction to be drawn between information, be it "new information" or otherwise, and a submission based on information.
22 The existence of such a distinction is a separate, although not unrelated, subject from whether the Authority is obliged to consider a submission made to it. It was only in relation to the latter subject that the Minister submitted that CLV16 was inconsistent with the later judgment of the High Court in BVD17 v Minister for Immigration and Border Protection (2019) 93 ALJR 1091 (BVD17).
23 Assuming for the moment, contrary to the Minister's submission about the effect of BVD17, that the Authority was under an obligation to consider, for the purposes of the review itself, the mental health explanation in the submission of 23 October 2018, the only material reasonably capable of supporting it (the statements in [29] of the statutory declaration of 23 October 2018) to which the appellant came to advert was either precluded from consideration by s 473DD or, as we highlight below, assumed by the Authority in the appellant's favour. In the context of the review itself, a failure to consider a submission offering an explanation which required an evidentiary foundation in circumstances where there was no such foundation could never cross the "threshold of materiality" so as to constitute a jurisdictional error: Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123, at [29] - [30] (Hossain).
24 In any event, we are not persuaded that, in conducting the review itself, the Authority did not advert to the appellant's mental health as a possible explanation for inconsistency in his accounts of his experiences. Even though the s 473CC function of the Authority in reviewing a "fast track reviewable decisions", such as the present, is not identical to that of the Administrative Appeals Tribunal (Tribunal) under s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), it is, nonetheless, also part of an "administrative continuum": Frugtniet v Australian Securities and Investments Commission (2019) 93 ALJR 629, at [53], per Bell, Gageler, Gordon and Edelman JJ. The ramifications of being part of an administrative continuum are necessarily dictated by the particular statutory scheme, but one feature shared by the Authority with the Tribunal is that described in Re Easton and Repatriation Commission (1987) 6 AAR 558, at 561, "The ambit of a review by the [Tribunal] is necessarily influenced by the ambit of the steps and proceedings that have taken place prior to its review, for the function of the [Tribunal] is to review a decision". That statement was endorsed by Davies J in Jebb v Repatriation Commission (1988) 80 ALR 329, at 333 - 334 and, in turn, by Kirby J in Shi v Migration Agents Registration Authority (2008) 235 CLR 286, at [45]. One of the "steps and proceedings" earlier in the administrative continuum was the submission made to the delegate on 4 October 2018.
25 The inconsistencies perceived by the delegate, and also by the Authority, arose from a failure by the appellant, when interviewed on 7 May 2013 (which the Authority terms the "entry interview"), to make any claims regarding working for the Americans in Afghanistan or being targeted by the Taliban. These claims, which grounded his asserted fear of persecution, were made only in the appellant's statutory declaration of 24 February 2017, appended to his SHEV application and then in a subsequent interview prior to the delegate's decision (which the authority termed the "SHEV interview").
26 As had the delegate, the Authority expressly grappled with the possible mental health explanation raised by the appellant's previous advisors in their submission of 4 October 2018. In its reasons, at [14], the Authority acknowledged "that there can be caveats around reading too much into entry interview responses" and then recited, accurately, "The agent variously made claims that the applicant was still disoriented and traumatised by the boat journey, received poor advice from other detainees, and instructed by the interviewing officer to keep his answers brief (a message that the applicant claims was reinforced by the interpreter)" (our emphasis). Having disclosed, at [15], that it had listened, personally, to the almost 2 hour entry interview, the Authority stated, at [16]:
16. While I do not discount that he may still have been affected by his ordeal, there was a period some weeks between the end of what would have been an arduous boat trip and his entry interview. The applicant appeared alert and responsive at interview and was able to supply details about his religion, schooling and family composition without apparent hesitation.
Of that entry interview, the Authority stated, at [17]:
17. The entry interviewer asked the applicant a straightforward question - "What was the last job that you had before you left Pakistan?" The applicant responded that he was a student before he left Pakistan. The officer asked the applicant if he ever travelled outside of Pakistan prior to coming to Australia, and the applicant said no.
27 It is thus clear that adverse mental health at the time of the entry interview was assumed by the Authority in the appellant's favour as a possible explanation for inconsistency between what he then stated and the statements which he made in his statutory declaration of 24 February 2017 and during his SHEV interview. It is just that the Authority, for logical reasons, chose not to accept that possible explanation.
28 Further, it was the appellant's mental health at the time of the entry interview which, if raised by material capable, if accepted, of being reasonably probative, might have served to explain inconsistencies, not the appellant's mental health as at October 2018. The appellant did not, in terms, state in his 23 October 2018 statutory declaration that his then present condition had been continuous from the time of that entry interview. For this reason also, even were that assumption in the appellant's favour not regarded as a taking up by the Authority for consideration in the review itself of the "mental health" submission, be that as made to the delegate or repeated to the Authority, no failure to advert to that submission would, having regard to Hossain, cross the "threshold of materiality".
29 The submission in relation to the appellant's mental health, even as made to the delegate, was never an integer of why he claimed to fear persecution. It was, however, put forward as an explanation for why his initial failure to refer to particular integers of his claim should not affect its credibility. It may be accepted that to fail to respond to a substantial, clearly articulated argument relying upon established facts was not just a denial of natural justice but also a failure to exercise jurisdiction: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088. But, save for benign inferences one might perhaps draw from the very experience of the particular boat journey and an impression arising from listening to the entry interview, there were no "established facts" in the material before the delegate as to the appellant's mental health at any time after his arrival in Australia. As mentioned, the Authority's permissible conclusion under s 473DD of the Act meant that there were no other such "established facts" for the purposes of the Authority's review. The Authority responded to the only aspect of the appellant's mental health argument even conceivably supported by an "established fact" in the material before it for the purposes of the review.
30 All of this lends an academic quality to the appellant's submission that the Authority was under an obligation to consider the submissions which he made about his mental health and, for that matter, to the Minister's submission that, in light of BVD17, CLV16 should no longer be regarded as correct because it holds that a failure by the Authority to consider submission of 23 October 2018, made to it in accordance with the practice direction issued under s 473FB of the Act, can amount to a jurisdictional error.
31 As at the time when CLV16 and BVD17 were decided, the President of the Administrative Appeals Tribunal, acting pursuant to s 473FB of the Act, had issued directions in respect of the practice of the Authority. Similarly, when the present case was decided by the Authority, such presidential directions had been issued. They were contained in a Practice Direction dated 6 February 2017. On the subject of submissions to the Authority, it was directed, at [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.
32 In BVD17, in their joint judgment, at [32], Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ referred to, and rejected, a submission by the appellant in that case that all that the prescription in s 473DA(1) achieved, was "to prevent recourse to provisions in Pt 7AA other than Div 3 and ss 473GA and 473GB in determining the express or implied incidents of the Authority's obligation of procedural fairness". Materially for present purposes, their Honours highlighted as an example of what would follow from the application and an acceptance of this submission, that it would preclude "an implication arising from the requirement of s 473FB for the Authority, so far as practicable, to comply with a direction by the President as to the conduct of reviews".
33 This submission, and thus that example of what would follow from its acceptance, their Honours stated in BVD17, at [33], "would deprive s 473DA(1) of any meaningful operation" and "cannot be accepted". Given their earlier reference to an implication arising from s 473FB of the Act, the immediately following observations by their Honours, also at [33], are particularly relevant for present purposes:
33. … The evident purpose of s 473DA(1) in prescribing that the provisions to which it refers are to be taken to be an "exhaustive statement of the requirements of the natural justice hearing rule" is to require that those provisions be construed as a codification of the incidents of the Authority's acknowledged obligation of procedural fairness. The prescription does not preclude all implications. Importantly, it does not preclude an implication that a statutory power within the provisions to which s 473DA(1) refers must be exercised only within the bounds of legal reasonableness. What the prescription does preclude is an incident of the Authority's obligation of procedural fairness arising as a matter of implication through the application of the common law principle of statutory interpretation according to which, where the exercise of a power or the performance of a duty is conditioned by a requirement to afford procedural fairness, "regard must be had to the circumstances of the particular case to ascertain what is needed to satisfy the condition" with the result that "[i]t is not possible precisely and exhaustively to state what the repository of a statutory power must always do to satisfy [the] condition".
[Emphasis added]
34 Also in BVD17, having referred with approval to the understanding in two earlier judgments of the Full Court of this Court as to the codifying effect of s 473DA(1) of the Act, their Honours further observed, at [34], that, "The consequence is that, except to the extent that procedural unfairness overlaps with legal unreasonableness, procedural fairness analysis is not the 'lens' through which the content of the procedural obligations imposed on the Authority in the conduct of a review under Pt 7AA is to be determined". Put in affirmative terms, the "lens" through which the content of the procedural obligations imposed on the Authority in the conduct of a review under Pt 7AA is to be determined is through what is stated in Pt 7AA, either expressly or by necessary implication.
35 As to CLV16, the actual decision in that case stands for these propositions. The first, is that there is nothing in s 473DC and s 473DD of the Act which precludes the consideration of a submission by or on behalf of an applicant to the Authority. The second, is that, in circumstances where a submission, related to the reception of identified "new information", had been put to the Authority in conjunction with such information but inadvertently not considered by the Authority prior to making what purported to be a "decision", the Authority was not precluded by s 473EA from vacating that earlier, purported decision and considering whether, in light of the submission and the "new information", it should consider that "new information" and then making a decision. That is because, the Authority at least had to consider whether, in light of the submission and the proffered "new information", it should consider that "new information" for the purposes of the review. A failure so to do constituted a jurisdictional error with the consequence, as in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597, that the earlier, purported decision was no decision at all.
36 The Court's conclusion that neither s 473DC nor s 473DD of the Act precluded the obligation to consider the submission for that purpose was in part informed by an implication flowing from s 473FB that the President might lawfully have, and had, issued a practice direction which permitted, subject to specified conditions, a submission to the Authority and that the applicant had made just such a submission. A later application for special leave to appeal against the Full Court's judgment in CLV16 failed: CLV16 v Minister for Immigration and Border Protection [2018] HCATrans 266. Nothing in BVD17 calls into question the propositions which dictated the actual decision in CLV16.
37 In the present case, as [5] of its reasons demonstrates, the Authority did consider whether or not, having regard to the submission to it by Refugee Legal and the appellant's statutory declaration of 23 October 2018, it ought to receive the "new information" about the appellant's mental health for the purposes of the review itself. Thus, it did not commit the jurisdictional error identified in CLV16. Having permissibly decided that no "exceptional circumstances" existed warranting the consideration of this "new information", the position which obtained, as we have mentioned, was that there was nothing before the Authority for the purposes of the review itself, other than the possibility assumed in the appellant's favour, but ultimately permissibly rejected, flowing from the circumstances of his sea voyage to Australia, which reasonably admitted of a finding that the absence of reference at the entry interview to experiences later related was explicable by the appellant's mental health.
38 What follows from the foregoing is that, however one approaches ground 1, it must be rejected.
39 Further, if anything, the passage in BVD17 which we have emphasised rather suggests that non-compliance with presidential directions made under s 473FB of the Act can have jurisdictional error implications. Once this is appreciated, it is neither necessary nor desirable in the circumstances of the present case further to explore the metes and bounds of an implication flowing from the lawful making of a presidential direction under s 473FB permitting the making of a submission to the Authority by an applicant, the requirement, found in s 473FB(3) that the Authority "as far as practicable" comply with such presidential directions and the prescription (also found in s 473FB(3)) that a failure to comply with such a direction "does not mean that the Authority's decision on a review is an invalid decision". All it is necessary to conclude is that, for the reasons given, if there were any such implications, they were not productive of any jurisdictional error. It is not necessary to consider whether everything stated in CLV16 is reconcilable with the later decided BVD17. It is trite that any such inconsistencies would be resolved by the ultimate appellate status of the pronouncements in BVD17 but their identification (if there are any) ought to await a case where the facts require that identification.