AAQ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

THE APPEAL 22 This appeal focusses attention on the question of whether the IAA erred by refusing to consider the new information as set out in the covering email, the further statement and the Jegasothy letter. 23 Section 473DD of the Act provides: Considering new information in exceptional circumstances For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless: (a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and (b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information: (i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or (ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims. 24 The appellant contends that there was no discussion by the IAA as to whether the new information amounted to "credible personal information" within s 473DD(b)(ii). He submits that the IAA did not undertake any review of the new information itself in order explicitly to come to a reasoned view on this point. It is not, he submits, sufficient for the IAA simply to say that because the new information is new, it is not credible information, citing Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110. He submits that the IAA failed to evaluate the significance of the relevant part of the new information, or turn its mind to whether it was credible personal information capable of informing its satisfaction as to the existence of exceptional circumstances, as the Court in CQW17 at [51] had required. In so doing, the IAA failed to recognise the significant peril in which the appellant would be placed if he is returned to Sri Lanka, especially having regard to his distinctive physical characteristics as an amputee. The appellant submits that the FCCA erred in concluding that the IAA had expressly considered and rejected the explanation given by the appellant in support of the late provision of the new information as not satisfactory, when the IAA had simply stated its conclusion. 25 During argument, a further issue arose, namely whether or not the IAA had sufficiently considered the Jegasothy letter, not for a hearsay purpose, but rather as a document that identified that in 2013 the appellant had told the Reverend a version of events consistent with the new information as set out in the further statement. In supplementary written submissions, the appellant contends that the IAA failed to consider whether the Jegasothy letter provided evidence that the new information was not simply a recent invention, but was consistent with a version of events given to the Reverend well before the decision of the delegate, thereby adding to the credibility of the new information. 26 The Minister submits that the IAA made express findings as to whether the new information set out in the covering email, further statement and Jegasothy letter could have been provided to the delegate. He further submits that the IAA made express findings at [8] to [10] in relation to the credibility of the new information, and the effect it would have on consideration of the appellant's claims at [11] of its reasons. Those findings were in relation to the new information as set out in both the further statement and the Jegasothy letter. Having regard to the matters set out in [8] to [10] the IAA also reached a conclusion that there did not exist exceptional circumstances within s 473DD(a). In so finding, the Minister submits that the decision of the IAA reflects no error, and that the primary judge was correct in so concluding. 27 In his supplementary submissions in relation to the Jegasothy letter, the Minister notes that in the four statements and interviews given by the appellant prior to the further statement, the appellant had expressly disclaimed any suggestion that he was a member of the LTTE. Even so, it was the Reverend's evidence that shortly after the first of these statements the appellant had disclosed to him involuntary membership of the LTTE. The Minister submits that the IAA did not err by failing in terms to consider whether the evidence of the Reverend was corroborative of the credibility of the appellant's claims to have been a member of the LTTE. That is because at [10] the IAA recorded that the Reverend had recounted having been told by the appellant in 2013 that he was an LTTE member, but found that this did not otherwise appear to add any independent substantiation. 28 In BVZ16 White J said: [9] The requirements of subparas (a) and (b) are cumulative but may nevertheless overlap to some extent. The Authority's satisfaction that the new information could not have been provided to the Minister at the time of the s 65 decision (subpara (b)(i)) may contribute to its satisfaction that there are exceptional circumstances to justify considering the new information. So also may the Authority's satisfaction that the new information is credible personal information which had not previously been known (subpara (b)(ii)). Accordingly, one would expect the IAA to consider the subpara (b) matters when considering in a given case whether the circumstances are exceptional. Obviously enough, however, the matters which may contribute to a finding that the circumstances in a particular case are exceptional may extend beyond those specified in subparas (b)(i) and (ii) and it seems improbable that the Authority could be satisfied, by reference to one matter only, that an applicant's circumstances are not exceptional. His Honour's view was affirmed in Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 at [102]-[103] (Kenny, Tracey and Griffiths JJ) and cited with apparent approval by the Full Court in CHF16 v Minister for Immigration and Border Protection [2017] FCAFC 192 at [17]-[18] (Gilmour, Robertson and Kerr JJ), DYS16 v Minister for Immigration and Border Protection [2018] FCAFC 33 at [31]-[33] (Tracey, Murphy and Kerr JJ) and CQW17 at [48] (McKerracher, Murphy and Davies JJ). See also, generally in the context of s 473DD, BDY18 v Minister for Immigration and Border Protection [2020] FCAFC 24 at [23]-[28] (McKerracher, Colvin and Jackson JJ). 29 In BBS16 the Full Court said: [102] We are unpersuaded by the Minister's contentions that in BVZ16 White J misconstrued or misapplied the term "exceptional circumstances" under s 473DD. We respectfully agree with his Honour's reasons for concluding that the IAA in that case adopted an inappropriately narrow understanding of that phrase. In particular, we agree with his Honour's findings and reasons that the requirements of subparas (a) and (b) of s 437DD [sic] are cumulative but may nevertheless overlap to some extent, with the effect that the IAA's consideration of either or both of the limbs in subpara (b) may inform the IAA's satisfaction under subpara (a) as to whether there are exceptional circumstances to justify considering the new information. [103] That is not to say, however, that the matters in subparas (b)(i) and (ii) are the only matters to be considered by the IAA in determining whether it is satisfied that there are exceptional circumstances to justify considering any new information. [104] As White J explained, the phrase "exceptional circumstances" is to be given a broad meaning, along the lines of circumstances which are unusual or out of the ordinary. This necessarily requires that consideration be given to all the relevant circumstances in determining whether or [sic] there are "exceptional circumstances" (see the authorities cited by his Honour at [39]-[41] of BVZ16). 30 In CQW17 the Full Court expanded upon the scope of "exceptional circumstances" within s 473DD: [51] The expression 'exceptional circumstances' in subpara (a) has a broad meaning and it is not possible to state exhaustively what factors will be relevant or what the Authority must consider in a particular case: Plaintiff M174 at [30]. The Authority is obliged to consider all relevant circumstances, and as White J observed in BVZ16 the matters in (b)(i) and/or (ii) will usually form part of the consideration. In the circumstances of the present case, the Authority did not evaluate the significance of the relevant part of the New Raid Information, or turn its mind to whether it was credible personal information capable of informing its satisfaction as to the existence of exceptional circumstances. On a fair reading of paragraph six, the Authority's finding as to (b)(i) was decisive, and this bespeaks an overly narrow interpretation of the expression 'exceptional circumstances'. 31 Although the appellant contends that the IAA failed to take into account and give consideration to whether the new information was "credible personal information", and took an inappropriately narrow view of the breadth of the expression "exceptional circumstances" in applying s 473DD of the Act, I am not satisfied that its approach reflects jurisdictional error. 32 Fairly read, I consider that the IAA's conclusion that it was not satisfied that there were exceptional circumstances to justify considering the new information contained in the further statement and the Jegasothy letter within s 473DD(a) was based on: its conclusion that the appellant had not provided any satisfactory explanation as to why the new information could not have been provided earlier within s 473DD(b)(i); and that it was not credible personal information not previously known that may have affected consideration of the claims within s 473DD(b)(ii). The appellant has been unable to point to any fact or matter materially bearing upon the IAA's consideration as to whether it was satisfied of the requirement under s 473DD(a) that was not taken into account. 33 The matters which are set out earlier in [8] to [12] of the IAA's reasons provide the foundation for its conclusion that the new information was not credible personal information. In [8] the IAA described the numerous opportunities which the first respondent had earlier in the process to provide the new information, his knowledge about the limitations of providing new information and the fact that he had not previously raised the new information notwithstanding that it related to events which occurred prior to the delegate's decision on 17 May 2017. In [9] of its reasons the IAA rejected the appellant's statement that he feared disclosing the new information. At [10] the IAA gave consideration to the matters described in the Jegasothy letter and whether the Jegasothy letter provided substantiation of the new information. In [11], the IAA reasoned that because there was no further explanation for the appellant's failure to bring the new information earlier, and because the new information substantially changed the nature of his protection claims, the IAA was not satisfied that it was credible personal information. At [12] the IAA concluded that it was not satisfied that there were exceptional circumstances to justify considering the new information. 34 The appellant points in particular to two matters that are said to reflect error, or an absence of reasoning on the part of the IAA. First, he submits that fairly read, the reasoning of the IAA is confined to consideration only of the explanation for the failure to provide the new information earlier. Even within that consideration, the IAA did not refer to or consider the explanation offered by the appellant, namely, as he states in his further statement, he lied earlier to avoid being marked as a former LTTE cadre and as a terrorist according to many countries, including, as he understood it, Australia. In the covering email he explained that he realised that the IAA review is a final merit review and "a last opportunity to state all of my protection claims". However, it is apparent from the reasoning at [5] and [7] that the IAA adverted both to the substance of the new information and the explanation for not providing it earlier, before arriving at the conclusion expressed at [9]. Whilst all of the aspects of that explanation are not recited in its conclusion, it is apparent that the IAA adverted to them in arriving at its conclusion. 35 Secondly, the appellant contends that the IAA provided no reasoning for the rolled up conclusions apparently addressing s 473DD(b)(ii) set out in [11], namely: (a) that the new information is not credible personal information; and (b) that the new information is not information that may have affected consideration of the appellant's claims. 36 In relation to (a), whilst there is no reasoning provided as to why the new information is not credible, the IAA considered whether the Jegasothy letter provided independent substantiation of the new information, and concluded that it did not at [10]. Although the IAA did not explicitly state so, I infer that the IAA considered the lack of corroborative materials in assessing the credibility of the new information. The IAA also adverted to the fact that the new statement substantially changed the nature of the protection claims advanced. That of itself, may be considered to a matter bearing on the credibility of the claims. As the Full Court in AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111 noted at [17], the IAA is not required "to evaluate the credibility of the new information or the significance of the new information to the appellant's case beyond the consideration given, absent some feature or matter to cause, or which should have caused, the Authority to consider that there was something about the appellant's case which made it unusual or out of the ordinary". It is true that the IAA did not in terms address attention to the fact that the Jegasothy letter records that in April/May 2013, shortly after his arrival in Australia and well before the decision of the delegate, the appellant informed the Reverend of his personal history in terms that are in broad accordance with the new information now advanced. However, whilst that may suggest that the appellant had earlier made a prior consistent statement of events now advanced in the further statement, of itself the Jegasothy letter does not corroborate the evidence in the further statement. It cannot be said that consideration of that material "may have affected the consideration of the [appellant's] claims" within s 473DD(b)(ii). 37 In relation to (b), there can be no doubt that if the information in the further statement were received it would significantly have affected consideration of the appellant's claims, because rather than being a victim who was caught up in events as a young man trying to flee the effects of the conflict between the LTTE and the SLA, the new information places him as a formerly active member of the LTTE, which significantly increases the risk profile associated with his return to Sri Lanka. The consequence of refusing to consider that evidence is likely to be significant. However, the predicate to the acceptance of that new information is that there are "exceptional circumstances" within s 473DD(a) to justify its consideration. The circumstances to which the section draws attention are not the content of the new information (although they may have a bearing on the consideration of the requirements of the section) but rather those pertinent to its availability.

At a glance

Court

Decision date

Before

Source

Judgment (8 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (6)