APL18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

FCCA judgment 10 The FCCA judge concluded (at [40] of his Honour's reasons) that there was no error in the IAA's approach to the baptismal certificate. His Honour gave the following reasons for that conclusion (at [38]-[39]): [38] … Read fairly, the Authority's reasons disclose that it considered the certificate in the context of the applicant's broader claims in circumstances where the applicant had conspicuously failed to give any explanation as to how the certificate tied in with his claims to fear harm in Iran. In so doing, the Authority properly assessed the question of "exceptional circumstances" by reference to the material before it, especially in the context of the applicant's claims. The Authority correctly dealt with the baptism certificate as an item of "new information". [39] As I put to the representatives at the trial, if the Authority had taken the baptism certificate into account, it would have raised more questions than it answered. In order to answer those questions, the Authority might have needed to consider getting further information, either in writing or orally from the applicant in order to explain the significance of the certificate. The scheme of Part 7AA of the Migration Act is that significant new information, particularly where it is inconsistent with earlier claims, needs to be explained when it is presented rather than left dangling before the Authority with an unspoken invitation to make further enquiries.

Issue on appeal 11 The notice of appeal contends that the following matters constituted exceptional circumstances within the meaning of s 473DD of the Act, that justified the IAA's considering the baptismal certificate: 2. I am a citizen of Iran. I arrived in Australia as born Shia Muslim but did not believe in Islam and did not had opportunity to explore other religions. I made a refugee claim. I was moving towards the atheism. While my application was on foot I found the opportunity to explore Christianity and started researching Christianity. I attended the interview on 15 March 2017 in relation to my claim and s 65 decision was made on 26 May 2017. And at this time I was not baptised and not converted to Christianity yet. Accordingly I was not in a position to provide my conversion or Baptism Certificate to the Minister before s 65 decision was made: s 473DD (a) and s 473DD (b)(1) of the Migration Act 1958. I was baptised on the 05th of August 2017 and subsequently I provided my certificate of baptism to the IAA and the decision was under IAA assessment at this time. 3. I was not represented during the entire process of my application and I presented my Baptism Certificate. My level of English language was poor. I believed the IAA should be in a position to know that risk of Muslim convert to Christianity under the Sharia Laws in Iran as this is an established position not only in Australia but around the globe. And consequently the risk I would face if I am return to Iran as the penalty for a convert from Islam is execution by way of hanging from the neck. 4. It is important to note that all had occurred while I was suffering from depression and anxiety. The Psychologist report was presented to the IAA confirms that. … 7. … I am a human being and my life should be worth that much to consider my provided information. I am a Christian and I can not return to Iran. If I am returned I will be killed. 12 On that basis, the notice of appeal contends that the IAA made an error of law by not considering the new information. It follows, according to the appellant, that the FCCA erred by failing to identify the IAA's error. The notice also contends that the FCCA "did not place sufficient weight for the circumstance and the risk of harm to my life while making its decision on my appeal application". 13 Thus, the issue posed by the appeal is whether the FCCA judge erred in holding that there was no jurisdictional error by the IAA when it found that it was not satisfied that there were exceptional circumstances to justify considering the new information under s 473DD(a) of the Act.

Appellant's submissions 14 The appellant argued that the FCCA failed to give real, genuine and proper consideration to the subjective circumstances of the appellant, in assessing whether there were "exceptional circumstances". 15 The appellant made the following points concerning his circumstances: (1) At the time of the IAA process, he was not legally represented and had no knowledge of the Australian migration laws and the requirements under the scheme of Pt 7AA of the Act, including any requirement to explain the "particular details" to the IAA. (2) The appellant could not afford private legal representation and free and pro bono legal advice was not available for him or he did not have the capacity to seek such assistance due to his language and being new to Australia. (3) Regardless of what he previously believed or not, he was a born Muslim in Iran, and registered as Muslim in Iran. He accepted Christianity here and that is a formal conversion from Islam to Christianity for him legally under the Islamic Sharia Laws. Such a conversion carries the death penalty in Iran. That risk was not properly assessed and no proper consideration given to that fact. "In fact he was not treated as human but a number." (4) The appellant's conversion is genuine and there is no evidence to the contrary. He is now a practising Christian. Accordingly, the appellant's conversion "should not be questioned, ignored or given less weight because of the big general picture of his application, in absence of any evidence with probative value in contra. It is submitted that any doubt in the absence of evidence in contra can only be defined as speculations". (5) The appellant has been through a lot of difficulties in Australia living in uncertainty with the risk of being forced to return to Iran and the trauma he suffered on the way to Australia. Consequently the applicant was suffering from depression and anxiety during the time when his matter was before the Department and the IAA. Accordingly he was a vulnerable human being. (6) The appellant is a person of an excellent character "and his credibility should give to him as he did not do anything for court to do not accept his claim of being a genuine Christian".

Consideration 16 In Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217, the plurality stated, in relation to the requirement in s 473DD(a), at [30]: Quite what will amount to exceptional circumstances is inherently incapable of exhaustive statement. The 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". 17 In Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; (2017) 257 FCR 111 at [104], the Full Court stated that "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 [not] there are 'exceptional circumstances'." The Full Court found (at [112]-[113]) that the IAA had erred in failing to consider matters of potential relevance to the issue of "exceptional circumstances", which included material which explained why the visa applicant had not previously disclosed the new information. 18 In CHF16 v Minister for Immigration and Border Protection [2017] FCAFC 192; (2017) 257 FCR 148, the Full Court also found error by the IAA in its consideration of whether there were "exceptional circumstances" within the meaning of s 473DD(a). At [44], the Court concluded that, on a fair reading of the IAA's reasons, it "did not address itself to whether the material was credible personal information or information of such a character which was not previously known to the Minister and, had it been known, may have affected the consideration of the appellants' claims". 19 In AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111; (2018) 162 ALD 442, the Full Court considered a case involving "new information" about the appellant's conduct in Sri Lanka and his reasons for that conduct. The appellant argued that the IAA had failed to consider the importance of the new information to the appellant's claims, the appellant's personal circumstances, the credibility of the new information, and the reason for the later inconsistent account. 20 At [15], the Full Court considered that it was "necessary for the Authority to examine whether there was anything about the new information or the appellant's circumstances which meant that there were exceptional circumstances justifying consideration of the new information". 21 Rejecting the appellant's submission, the Full Court concluded (at [17]): …[T]he appellant was unable to point to any fact or matter materially bearing upon the Authority's consideration as to whether it was satisfied of the requirement under s 473DD(a) that was not taken into account and, had it been taken into account, would have materially borne upon its consideration. In our opinion, it has not been shown that the Authority took an unduly restricted approach to the question of whether exceptional circumstances existed. The fact that a different account was put to the Authority would not, of itself, constitute "exceptional circumstances" to justify consideration of the new information. Nor, contrary to the appellant's submissions, was the Authority obliged 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. Nor does it appear from the material that anything was put to the Authority about the appellant's personal circumstances or reason for the later inconsistent account, which was potentially relevant to the issue of "exceptional circumstances". In the present case, as the Authority reasoned, the new information was information which the appellant could have provided the delegate in response to direct questioning on the topic and was information which was inconsistent with the version of events he gave the delegate. In our opinion, it was open to the Authority to decide, having regard to those matters, that it was not satisfied that exceptional circumstances existed. 22 The appellant did not make any submission to the IAA that the matters on which he now relies provided justification for the IAA considering the "new information". Although the appellant submitted that the IAA should have exercised its discretion to seek or obtain information that would have led it to find "exceptional circumstances" in the appellant's case, by s 473DC(2), the IAA had no 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". The appellant did not explain how the IAA could have been required to presume that the appellant was a Christian and would be killed if returned to Iran for the purpose of deciding whether to consider the baptismal certificate. 23 As the Minister observed, the IAA's lack of satisfaction as to the existence of exceptional circumstances was based on the apparent inconsistency of the baptismal certificate with the appellant's previous statements concerning his agnosticism, and the lack of any accompanying explanation or information about when or how his interest in Christianity developed. In the absence of any other relevant information, those matters provided an ample basis for the IAA's conclusion that there were no "exceptional circumstances" that justified consideration of the "new information". 24 The FCCA judge's reasons for concluding that there was no error in the IAA's conclusion on this point do not reveal error. As his Honour observed, the IAA was required to consider the question of "exceptional circumstances" by reference to the material before the IAA.

Conclusion 25 The appeal must be dismissed. Costs should follow the event. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gleeson.