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[2017] FCA 958
appellant. The orders of the Federal Circuit Court made on 3 March 2017 are set aside. The decision of the Immigration Assessment Authority of 16 June 2016 affirming the decision not to grant the appellant a...
A Tamil man from Sri Lanka who arrived by boat gave new details after his visa refusal about being tortured and sexually assaulted by the army just before he left. The IAA refused to look at this evidence, saying his explanations for not mentioning it earlier (fear of being sent back and embarrassment) did not create 'exceptional circumstances'. The Federal Court held that the IAA had only looked at one narrow question instead of all the relevant factors and had ignored the separate requirements in s 473DD(b). This was a jurisdictional error. The appeal was allowed, the IAA decision quashed, and the case sent back for a fresh review by a different member.
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The appellant, a Sri Lankan national of Tamil ethnicity, arrived in Australia without a visa on 27 August 2012 and was therefore an unauthorised maritime arrival within the meaning of s 5AA of the Migration Act 1958 (Cth). Section 46A(1) barred him from making a valid visa application until the Minister exercised discretion under s 46A(2) on 13 July 2015 to permit him and his wife to apply for a Temporary Protection visa or a Safe Haven visa (Subclass 790). The appellant lodged his Safe Haven visa application on 15 August 2015 and became a fast track applicant as defined in s 5(1). He was interviewed by a delegate on 4 December 2015. On 3 May 2016 the delegate refused the visa. That refusal was a fast track reviewable decision, triggering the Pt 7AA review mechanism inserted by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth).
3 cited instruments linked from this judgment.
As required by s 473CA, the delegate's decision and the s 473CB material were referred to the Immigration Assessment Authority (IAA). The IAA was prima facie required by s 473DB(1) to conduct the review on the papers without accepting or requesting new information and without interviewing the referred applicant. However, ss 473DC and 473DD conferred a limited power to obtain and consider new information. "New information" is defined in s 473DC(1) as documents or information that were not before the Minister (or delegate) when the s 65 decision was made and which the IAA considers may be relevant.
On 21 April 2016 the appellant was given the IAA's Practice Direction which warned that new information could be considered only in very limited circumstances. His migration agent then lodged a submission (which the IAA accepted was not new information), a statutory declaration made by the appellant on 22 May 2016, and a short letter from his general practitioner. The new statement contained claims not previously advanced: that 15-20 days before departing Sri Lanka on 10 August 2012 the appellant had been taken to an army camp, detained for two days, hung upside down (first nearly naked, then naked), beaten with wooden sticks, had a glass bottle forced into his mouth, and had a pipe inserted into his anus. He was warned that his wife would receive similar treatment. The appellant explained at [12] of his statement that he had not mentioned this earlier because he feared Australian authorities would perceive him as an LTTE supporter and return him with other Tamils, and because he was too embarrassed and mentally affected as a male victim of sexual violence. The GP letter recorded scars on the appellant's left leg, foot, forearm and right shin, trauma from the rectal insertion, treatment for a scrotal abscess, and lower back pain attributed to war-related trauma.
The IAA summarised this material at [5]-[6] of its reasons but declined to consider it. At [7] it rejected the fear-of-return explanation, noting that LTTE accusations had been "squarely an issue" at the SHEV interview, that the appellant had been represented, and had lived in Australia for three years. At [8] it accepted that embarrassment was natural but found the appellant could have mentioned the detention without intimate details, given that he had disclosed other incidents. At [9] the IAA stated simply: "I do not accept there are exceptional circumstances to justify considering the information." It affirmed the delegate's refusal.
The appellant sought judicial review in the Federal Circuit Court on the single ground that the IAA had fallen into jurisdictional error by failing to consider the new information and by determining that no exceptional circumstances existed. The FCC dismissed the application, finding that the IAA had in substance addressed s 473DD(b)(i) when it rejected the appellant's explanations. The appellant appealed to the Federal Court on two grounds. The IAA filed a submitting notice. The Minister filed a Notice of Contention arguing that s 473DD(b)(ii) was inapplicable because the information was known to the appellant himself.
White J allowed the appeal. His Honour held that the IAA had addressed only the s 473DD(a) question and had not discharged the distinct statutory tasks in s 473DD(b). Further, the IAA had applied an unduly narrow construction of "exceptional circumstances" by treating its rejection of the late-disclosure explanations as decisive rather than evaluating all relevant circumstances of the appellant's case. The Minister's Notice of Contention was rejected. Orders were made setting aside the FCC orders, quashing the IAA decision, and remitting the matter to the IAA for reconsideration by a different member.
White J began by emphasising the statutory text and structure of Pt 7AA. Section 473DD is cast in mandatory terms: the IAA "must not consider any new information unless" both (a) and (b) are satisfied. The two limbs are cumulative but may overlap. Satisfaction that information could not have been provided earlier (s 473DD(b)(i)) or that it is credible personal information not previously known which might have affected the claims (s 473DD(b)(ii)) can contribute to satisfaction that exceptional circumstances exist under (a). Conversely, matters bearing on exceptional circumstances can extend beyond (b). At [9] White J observed that it seemed "improbable that the Authority could be satisfied, by reference to one matter only, that an applicant's circumstances are not exceptional".
His Honour then turned to the IAA's reasons. The structure was critical. After summarising the new claims at [5], the IAA set out the two explanations at [6], rejected each in turn at [7] and [8], and concluded at [9] using the exact language of s 473DD(a). There was no reference to the language of either limb of s 473DD(b), no finding that the information could have been provided earlier, and no evaluation of whether the information was credible personal information not previously known to the decision-maker. The IAA's focus was on the veracity of the explanations for late disclosure rather than on a broader assessment against the statutory criteria. White J held that this could not be characterised, even allowing for the caution in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272, as an implicit consideration of s 473DD(b).
A separate but related error was the narrow construction of "exceptional circumstances". White J surveyed the authorities at [39]-[41]: An v Minister for Immigration and Citizenship [2007] FCAFC 97; (2007) 160 FCR 480, Hatcher v Cohn [2004] FCA 1548; (2004) 139 FCR 425 (Kiefel J), Griffiths v The Queen (1989) 167 CLR 372, Ho v Professional Services Review Committee No 295 [2007] FCA 388 and R v Kelly [2000] QB 198. These authorities establish that "exceptional" describes circumstances that are out of the ordinary and that a combination of factors may suffice even if no single factor is exceptional. The statutory context of Pt 7AA (fast-track, paper-based review with a strong expectation that all claims will be presented initially) and the word "justify" in s 473DD(a) reinforce that the term must not be read narrowly.
The IAA appeared to treat its rejection of the embarrassment and fear explanations as decisive. That reasoning, White J held at [47], reflected "an inappropriately narrow understanding of the reach of the term 'exceptional circumstances'". The IAA had not evaluated the appellant's Tamil ethnicity, the history of harm to his family during the civil war, the repeated questioning and monitoring, the specific nature of the late-disclosed torture and sexual violence (noting that victims of sexual violence are often reluctant to disclose), and the potential significance of the new information to the core protection claims. This amounted to a constructive failure to exercise the jurisdiction conferred by s 473DB(1), consistent with the principles in Craig v The State of South Australia (1995) 184 CLR 163 at 177-178 and Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 at [74].
White J also rejected the Minister's Notice of Contention. The contention was that s 473DD(b)(ii) applies only to information not previously known to the applicant. His Honour gave three reasons for rejecting that construction. First, if the subparagraph referred only to the applicant's knowledge, it would be largely illusory because such information would already satisfy s 473DD(b)(i). Second, the reference to the effect the information "may have affected the consideration of the referred applicant's claims" points to the original decision-maker's knowledge. Third, the Supplementary Explanatory Memorandum to the 2014 Amendment Act described the new paragraph as extending the types of new information to include evidence of significant torture and trauma which, if known by either the Minister or the referred applicant, might have affected consideration of the claims. That extrinsic material was inconsistent with the Minister's narrow reading. Accordingly, s 473DD(b)(ii) requires an evaluation of the significance of the new information in the context of the applicant's claims more generally.
Because both grounds succeeded and the Notice of Contention failed, the appeal was allowed and the matter remitted.
Before the 2014 Amendment Act, review of protection visa refusals for unauthorised maritime arrivals was conducted by the Refugee Review Tribunal under Pt 7 with broader powers to receive new evidence and conduct hearings. The 2014 Amendment introduced Pt 7AA to create a "fast track" system. The IAA was intended to conduct primarily paper-based reviews. Section 473DB(1) expressly requires the IAA to review the delegate's decision by considering only the s 473CB material "without accepting or requesting new information" and "without interviewing the referred applicant". Sections 473DC and 473DD then create a tightly controlled exception.
The pre-existing authorities on "exceptional circumstances" (for example in extradition, sentencing and migration contexts) emphasised that the term is not a term of art, denotes circumstances that are unusual or out of the ordinary, and can arise from a combination of factors. Hatcher v Cohn and An were leading Federal Court decisions. R v Kelly supplied the often-cited passage that "exceptional" describes a circumstance "out of the ordinary course, or unusual, or special, or uncommon" and "need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered".
After BVZ16, the law is clearer in three respects. First, decision-makers must address both limbs of s 473DD and cannot treat satisfaction or non-satisfaction of (b) as automatically answering (a). Second, the assessment of exceptional circumstances must be holistic; it is not sufficient to examine only the applicant's explanation for late disclosure. Third, s 473DD(b)(ii) is not limited to information unknown to the applicant; it encompasses credible personal information not known to the original decision-maker that might have affected the outcome. The decision reinforces that jurisdictional error of the Craig and Kirk type will be found where an administrative decision-maker asks itself the wrong question or misunderstands the statutory task.
Subsequent amendments have not altered the text of s 473DD, so BVZ16 remains authoritative on its construction.
At [9] the IAA said: "I do not accept there are exceptional circumstances to justify considering the information."
Plain-English translation: After deciding the man's explanations for keeping quiet were not believable, the IAA used the exact wording of s 473DD(a) and stopped. It never asked the separate questions required by s 473DD(b).
White J at [9]: "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."
Plain-English translation: The two parts of the test overlap, but "exceptional circumstances" is a broader concept. You cannot dismiss a case as non-exceptional just because one explanation for late disclosure fails.
At [36]: "the FCC Judge should have found jurisdictional error by the IAA in failing to discharge the task of review imposed by s 473DB(1)."
Plain-English translation: Because the IAA ignored part of the statutory test, it never lawfully completed its review. That is a jurisdictional error.
At [47]: "The IAA member does seem to have reasoned that her rejection of the appellant's explanation for not having disclosed the new information earlier was decisive of the requirement that the circumstances be exceptional. This seems to reflect an inappropriately narrow understanding of the reach of the term 'exceptional circumstances'."
Plain-English translation: The IAA thought "if his excuse for being late is no good, then there are no exceptional circumstances". That is too narrow. The law requires looking at everything about the man's situation.
At [56] (dealing with the Notice of Contention and the Supplementary Explanatory Memorandum): "The reference to an extension of the types of new information which may be presented is inconsistent with the construction of subpara (b)(ii) for which the Minister contends."
Plain-English translation: Parliament deliberately widened the category of new information to cover things like evidence of torture that the decision-maker did not know about. The Minister's attempt to read (b)(ii) as applying only to things the applicant himself did not know is therefore wrong.
BVZ16 is triggered whenever an IAA decision under Pt 7AA involves a refusal to consider new information and the reasons suggest that the member has (a) addressed only the s 473DD(a) question in language that tracks that paragraph, (b) treated the applicant's explanation for non-disclosure as decisive without a broader evaluation, or (c) failed to make distinct findings about both limbs of s 473DD(b). Typical triggers include:
The precedent does not apply where the IAA expressly addresses both (a) and both alternatives in (b), evaluates all relevant circumstances, and reaches a conclusion open on the material. It is not an invitation to merits review; the jurisdictional error must be apparent from the reasons or from the IAA's failure to ask itself the right question.
Later Full Court and single-judge decisions have treated BVZ16 as authoritative on the construction of s 473DD. It has been followed in cases concerning late disclosure of sexual assault (e.g. Applicant WAH v Minister for Immigration and similar matters), new country information, and medical reports. Courts have repeatedly emphasised that the IAA must not "compartmentalise" the two limbs and must evaluate the whole of the applicant's circumstances.
The decision has been cited for the proposition that a narrow focus on the credibility of the explanation for late submission can reveal both a failure to consider s 473DD(b) and an impermissibly narrow view of "exceptional circumstances". It has been distinguished where the IAA reasons, read fairly and without an eye keenly attuned to error (Wu Shan Liang), demonstrate that both limbs were considered and that the broader context was taken into account.
No court has overruled BVZ16. It remains the leading single-judge authority on the interaction of the two limbs of s 473DD and the breadth of the exceptional circumstances test. Subsequent High Court decisions on analogous fast-track provisions have not cast doubt on its reasoning.
Several questions remain unresolved. First, precisely how the IAA is to record its consideration of the overlapping but distinct criteria in a concise statutory statement of reasons. The tension between the need for brevity and the obligation to demonstrate that both limbs have been addressed continues to generate litigation.
Second, the precise content of the "broader circumstances" that must be considered when assessing exceptional circumstances. While BVZ16 makes clear that ethnicity, history of harm, psychological barriers to disclosure and the significance of the new material are relevant, the boundaries are not closed. Whether, for example, systemic delays in legal representation or country information about generalised trauma in a particular ethnic group must always be considered remains unsettled.
Third, the interaction between s 473DD and the IAA's procedural fairness obligations under s 473DE where new information is received from a source other than the applicant is not fully explored.
Fourth, the extent to which an IAA member may permissibly have regard to the fact that an applicant was represented and had years in Australia when weighing explanations for late disclosure, without this sliding into an impermissible merits assessment, continues to divide decision-makers.
Finally, the correct approach where only part of a submission constitutes new information (as with the migration agent's covering letter in this case) still produces divergent outcomes. These open questions ensure that BVZ16 will continue to be cited and refined in the migration jurisdiction for the foreseeable future.
Most practitioners do not realise that the IAA's apparent scepticism about late disclosure of sexual violence can itself become evidence of the very psychological barrier the statute requires the IAA to weigh when assessing exceptional circumstances; a failure to recognise that feedback loop is one of the commonest jurisdictional errors post-BVZ16.
WHITE J: 1 This is an appeal from a decision of the Federal Circuit Court (the FCC) dismissing an application for judicial review of a decision of the Immigration Assessment Authority (IAA). 2 The appellant is a national of Sri Lanka who, with his wife, arrived without a visa at Christmas Island by boat on 27 August 2012. As such he was an unauthorised maritime arrival, as defined in s 5AA of the Migration Act 1958 (Cth). 3 By reason of being an unauthorised maritime arrival, the appellant was precluded from making a valid visa application: s 46A(1). However, on 13 July 2015, the Minister exercised the power under s 46A(2) of the Migration Act to permit the applicant and his wife to apply for a Temporary Protection visa or a Safe Haven visa (Subclass 790). 4 On 15 August 2015, the appellant applied for a Safe Haven visa and, accordingly, became a "fast track applicant" as that expression is defined in s 5(1) of the Migration Act. The appellant was interviewed by a delegate of the Minister on 4 December 2015 who subsequently, on 3 May 2016, refused the grant of the visa. The delegate's decision was a "fast track reviewable decision" which meant that the means for review of it are those contained in Pt 7AA of the Migration Act. That Part was introduced into the Migration Act by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) (the 2014 Amendment). 5 As required by s 473CA, the delegate's decision was referred to the IAA, together with the material required by s 473CB. Subject to some qualifications, the IAA was then required by s 473DB of the Migration Act to review the delegate's decision by considering the material provided by the Department under s 473CB(1) without accepting or requesting "new information" and without interviewing the appellant. However, despite s 473DB, the IAA was authorised to "get" relevant information which had not been before the Minister or the Minister's delegate and could at its discretion invite a person to give "new information". 6 The term "new information" is defined in s 473DC(1) of the Migration Act to mean "documents or information … that": (a) were not before the Minister when the Minister had the decision under s 65; (b) the Authority considers may be relevant. 7 Section 473DD imposes a significant limitation on the use which the IAA may make of "new information". It provides: 473DD 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. 8 As can be seen, s 473DD provides that the IAA "must not consider" new information unless both of two conditions are satisfied. The first is that the IAA be satisfied that there are "exceptional circumstances to justify" considering the new information. The second (which contains alternatives) is that the IAA be satisfied that the new information was not, and could not have been, provided to the Minister before the Minister made the decision, or that it be previously unknown "credible personal information" which, had it been known, may have affected consideration of the appellant's claim. 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. 10 In the present case, the appellant was provided on 21 April 2016 with a Practice Direction issued by the President of the IAA. That Practice Direction informed the appellant that he could provide a written submission and told him that the IAA could consider new information only in "very limited circumstances". 11 The appellant did wish the IAA to consider new information and his migration agent lodged material on his behalf. The material comprised a submission from the migration agent, a statement from the appellant himself made on 22 May 2015, and a short letter from his general practitioner. I will return to the contents of the second and third documents shortly. 12 The IAA member accepted that the submission from the migration agent was not "new information" as defined and had regard to it on the review. However, the member declined to consider the appellant's statement and the letter from the general practitioner, saying that she was not satisfied that there were exceptional circumstances to justify the information being considered. After reviewing the material which had been before the delegate's Minister and the submissions provided by the appellant's migration agent, the IAA member affirmed the decision not to grant the appellant a Safe Haven visa. 13 The FCC dismissed the appellant's application for review of the IAA decision (BVZ16 v Minister for Immigration [2017] FCCA 775), and the appellant now appeals against that decision to this Court. The Amended Notice of Appeal contains two grounds. 14 The Second Respondent to the appeal, the IAA, filed a submitting notice. 15 The Minister filed a Notice of Contention to which I will refer later in these reasons. 16 In order to understand the grounds of appeal and the Notice of Contention, it is necessary to record some further matters of background. 17 The principal elements of the claim to a Safe Haven visa presented originally by the appellant were as follows: (a) the appellant is Tamil from the north of Sri Lanka; (b) his village was in an area which had been infiltrated by the Liberation Tigers of Tamil Eelam (LTTE) during the civil war in Sri Lanka and had often been subject to attack by the Sri Lankan Army; (c) the appellant's brother had been killed in one such attack; (d) thereafter, in April 1985, he and his family (the appellant then being nine years old) had to fled to India where they remained as refugees until February 1988 when they returned to Sri Lanka; (e) the appellant's family found that the unrest in Sri Lanka continued and so once again (in 1990) fled to India where they remained until 2008; (f) the appellant returned to Sri Lanka in 2008 in order to marry but he and his wife lived in fear, as it was apparent that, being a Tamil, he was under suspicion and Tamils were frequently targeted by Sri Lankan authorities. Their apprehensions were heightened because there were several army and navy camps near to the place in which they were living, resulting in their perception that they were under close scrutiny; (g) between 14 April 2010 and March 2012, the appellant and his wife again lived in India, claiming asylum there; (h) in the period between 13 March 2012 and 10 August 2012 when they left Sri Lanka to travel to Australia, the appellant and his wife lived again in Sri Lanka. In this period, the appellant was subject to periodic intensive questioning by the Sri Lankan Police, a Special Task Force member and customs officers. The appellant describes these as interrogations in which he was repeatedly accused of having supported the LTTE. 18 The appellant said that he feared harm or mistreatment by the Sri Lankan authorities, particularly the Criminal Investigation Department (CID) and members of Tamil paramilitary groups, if he returned to Sri Lanka. 19 In his statement of 22 May 2016, the appellant made claims which he had not raised previously. These were to the effect that, some 15-20 days before he had left Sri Lanka on 10 August 2012, he had been taken by members of the Sri Lankan Army to an army camp where he had been detained for two days. During this time he had been interrogated and tortured, including by being hung from his feet upside down (initially while nearly naked and later while wholly naked), by being beaten with wooden sticks, by having a glass bottle inserted forcibly into his mouth, and by having a pipe inserted into his anus. He said that he had been told at the time of his release that his wife would face similar treatment. 20 The appellant acknowledged that he had not previously mentioned these claims and gave the following explanation: [12] The reason I did not mention this incident of serious harm previously either to my legal representative or to the delegate who interviewed me in December 2015 was due to the following reasons: (a) upon arrival in Australia I was afraid to disclose the incident of torture that I underwent as I was afraid the Australian authorities would perceive to be a member of the LTTE and I could have been returned to Sri Lanka as at the time I arrived by boat the Australian authorities were returning Tamils who had arrived by boat in large numbers. (b) I was too embarrassed to disclose this incident that occurred to me in the past either to my representative or the department officers as the experience was humiliating and degrading, being a male it was difficult to open up and talk about it, as the incident affected me greatly mentally. [13] This statement has been read back to me over the phone in Tamil by my representative who assisted me in preparing this statement. As my representative assisted me to prepare this statement over the phone I was able to disclose this truth to him and felt less embarrassed. [14] Though I have been able to share the facts about this particular incident I am now deeply troubled as certain things I had wanted not to remember are coming back to my mind. I am afraid I could be mentally affected and depressed. 21 The letter from the general practitioner was brief. It indicated that the appellant had informed the general practitioner that he had been assaulted by the Sri Lankan Army and had "sustained cuts to [his] left leg and foot, left forearm and right shin"; that the appellant had scars from those injuries; that the appellant had been traumatised by the insertion of the plastic tube into his rectum; that the appellant had been treated for a scrotal abscess after coming to Adelaide; and that the appellant suffered lower back pain attributable to trauma he had sustained "during the war". 22 The IAA characterised the appellant's letter of 22 May 2016 and the letter from the general practitioner as new material. It is implicit in that characterisation that the IAA considered that the information may have been relevant to the appellant's claim. 23 After summarising the content of the new material, the IAA gave the following explanation for not considering the new material: [6] In this statement the applicant claims he had not previously mentioned this to his legal representative or to the delegate because he was afraid that Australian authorities would perceive him to be an LTTE member and was frightened he would be returned with other Tamils. He also claims he was too embarrassed to disclose the incident because the experience was humiliating and degrading and as a male who had been mentally affected, it was difficult for him to open up. [7] The new information relates to material which was squarely an issue at the SHEV Interview on 4 December 2015. The substance of his protection claim rests on his claims that he has repeatedly been accused of, and interrogated about, LTTE membership and support and he has provided details of various other incidents in which he claims he was detained and interrogated about this. He was specifically asked about incidents of detention and torture during the SHEV Interview and he responded with descriptions of those incidents. Given these factors, and the fact that he was represented and had been residing in Australia for three years by the time he was questioned by the delegate, I do not accept his explanation that the was afraid he would be suspected of being returned on account of being perceived as an LTTE member. [8] The applicant also claims he was previously too embarrassed to disclose the incident to either the delegate or his representative. While I accept if these events occurred it would be natural for the applicant to experience feelings of embarrassment and shame and that that may impede his willingness to recall and discuss the details, I do not consider this as an explanation as to why he previously made no mention of being detained for two days in July 2012. I consider he need not have provided intimate details about the torture to make the delegate aware that he had been detained and interrogated as recently as one month before he left Sri Lanka. Given he disclosed various other similar incidents with basic detail I do not accept he would not have mentioned that the event occurred, even if he did not wish to discuss the finer details. [9] I do not accept there are exceptional circumstances to justify considering the information. (Emphasis added) 24 In the FCC, the appellant pursued only one ground of review, namely: The Immigration Assessment Authority (IAA), Second Respondent, fell into jurisdictional error in failing to consider the new information provided by the Applicant and in determining that there were no exceptional circumstances in existence in the case to justify considering the information. I will refer to the reasons of the FCC Judge in the consideration of the two grounds of appeal.
Ground 1A 25 Ground 1A complains of a finding by the FCC Judge that the IAA had made a determination about the s 473DD(b) requirement. The appellant contends that, properly understood, the IAA had made a finding only about the s 473DD(a) requirement. 26 The FCC Judge did make the finding which the appellant now seeks to impugn. He did so when addressing the appellant's submission that the IAA had addressed only s 473DD(a). The reasoning of the FCC Judge is contained in the following passages: [22] The applicant submitted that this review … turned on whether the IAA's lack of satisfaction that any relevant exceptional circumstances had existed was erroneous. [23] If indeed the IAA had not considered whether s.473DD(b) had been satisfied, as the applicant contended, then its decision would have been erroneous because the matters to which that paragraph refers are, by virtue of the terms of that section, ones which the IAA is obliged to consider when dealing with "new information". However, the IAA's discussion of the applicant's explanations for not having disclosed the new information at the application stage reveals an appreciation of the requirements of s.473DD(b) and, in particular, s.473DD(b)(i). Contrary to the applicant's argument, in substance if not in terms, the IAA found that it was not satisfied that the new information could not have been provided to the Department before the delegate decided to refuse the visa application. The IAA's conclusion that the requirement in s.473DD(b)(i) had not been met was an independent basis for affirming the delegate's decision. Because it was not contended that any such conclusion was erroneous, I find that the IAA's decision can be supported on this basis and so will not be set aside. [24] … [25] It is important to note that the only bases which the applicant advanced to the IAA as justifying it considering the new information were his explanations for not having disclosed it earlier. Consequently, it is not surprising that the IAA concluded its discussion of the applicant's explanations with the statement that it did not accept that there were exceptional circumstances which justified it considering the new information. That statement simply reflected that nature of the arguments advanced to it. It is also not surprising that that statement was brief because, although the IAA had to address s.473DD(a), anything it might have said had already been said in the context of s.433DD(b)(i). In the circumstances, it did not need to say more than it did and, as senior counsel for the applicant observed in addresses, the matters referred to in s.433DD do not need to be considered in any particular order. 27 As can be seen, the FCC Judge considered that the IAA's consideration of the appellant's explanation for not having disclosed the new information earlier revealed "an appreciation" by the IAA member of the requirements of s 473DD(b) and was, in effect, a finding (albeit expressed in negative terms) that the new information could have been provided to the Department before the decision on the visa application was made. The FCC Judge acknowledged that the IAA had not referred "in terms" to s 473DD(b)(i) but considered that he had done so "in substance". 28 In submitting that this characterisation of the IAA's reasons was wrong, the appellant's counsel noted, first, the terms in which [9] of the member's reasons was expressed (which replicated in substance the terms of s 473DD(a)) and the absence of any use of terms corresponding with those used in either subpara (b)(i) and (ii). Secondly, counsel submitted that, when the reasons are read in context, the reasoning in [6], [7] and [8] was directed to the conclusion in [9], which should be understood as a conclusion about the subpara (a) requirement only. 29 Counsel for the Minister submitted that four matters considered cumulatively and in context indicated that the IAA had considered both subparas (a) and (b). He submitted that the IAA's summary in [5] of the new information indicated an awareness of the context in which the information had arisen and that the information was pertinent to the appellant; that the summary in [6] of the appellant's explanation for not providing the information earlier indicated an appreciation by the IAA member of the factual and statutory context in which the information had been provided; that the evaluation in [7] of the new information in the broader circumstances of the appellant's claim indicated a consideration of subpara (b)(i) and an appreciation of subpara (b)(ii); and the evaluation in [8] of the explanation for the appellant's failure to have provided the information earlier in the broader context of the appellant's claim to protection reflected an appreciation of the requirements of subpara (a) and of both limbs of subpara (b). In support of this last point, counsel submitted that the IAA had "considered whether the information could have been provided at an earlier point in time" (thus reflecting an appreciation of subpara (i) of s 473DD(b)), the explanation for not providing the information earlier (which on a fair reading should be taken to have involved consideration of whether it was personal information that was previously known to the appellant in terms of subpara (ii) of s 473DD(b)), and the explanation for not providing the information earlier (subpara (a) of s 473DD). 30 In considering these submissions, the Court should keep in mind the caution emphasised by the plurality in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 that it "should not be concerned with 'looseness in the language'" nor with "unhappy phrasing" in the reasons of decision-makers such as the IAA and should not construe those reasons minutely "with an eye keenly attuned to the perception of error". 31 Nevertheless, despite these cautions, I do not consider that the reasons of the IAA can be construed in the way for which counsel for the Minister contends. The structure of the reasons counts strongly against that understanding of them. It can be inferred from [4] and [5] of the reasons that the IAA member was conscious that there were statutory limitations on her ability to consider the new information provided by the appellant. Having summarised the new information in [5], the IAA member noted in [6] the two explanations given by the appellant for not having mentioned the new information previously. The first was the appellant's claim that he was afraid that Australian authorities would perceive him to be an LTTE member and afraid that he would be returned to Sri Lanka with other Tamils. The IAA member addressed that explanation in [7] and, in the final sentence of that paragraph, rejected it. 32 The IAA member addressed the second explanation (the appellant's embarrassment arising from the humiliating and degrading nature of the claimed experience and his difficulty in speaking about it) in [8] and, again, rejected it. 33 It is understandable that the IAA member would have wished to scrutinise closely the applicant's late disclosure of the new information. The circumstances in which the claims were made gave rise naturally to questions about their veracity. That understanding and the content of [6], [7] and [8] indicate that the IAA member was engaged in an examination of the veracity of the appellant's explanation, rather than in some more general evaluation of the material against either of the subpara (b)(i) or (b)(ii) criteria. 34 Having rejected both explanations for the late disclosure of the new information, the IAA member then immediately expressed her conclusion in [9] that there were not exceptional circumstances justifying the consideration of the new information. In these circumstances, I do not consider that it can be concluded that the IAA member considered the significance of the new information in the light of the appellant's personal circumstances more generally or the way in which the claims in the new information related to the earlier claims made by the appellant. 35 The IAA member's findings in [7] and [8] would have enabled her to conclude that the new information could have been provided to the Minister before the time of the delegate's decision with the effect that the subpara (a) requirement was not satisfied. However, it seems significant that the IAA member did not express her conclusion in those terms. Instead, the member used only the terms of s 473DD(a). Moreover, and in any event, there is no indication that the IAA member considered the new material having regard to the criterion stated in subpara (b)(ii). 36 For these reasons, I respectfully disagree with the conclusion of the FCC Judge on this point. In my opinion, the FCC Judge erred in failing to find that the IAA had considered only the subpara (a) requirement. The FCC Judge had accepted (at [23]) that it would have been erroneous for the IAA not to have considered the subpara (b) requirement. It follows that the FCC Judge should have found jurisdictional error by the IAA in failing to discharge the task of review imposed by s 473DB(1). 37 I would also uphold an additional and related contention of the appellant. This was to the effect that, even if the FCC Judge had been correct in finding that the IAA had addressed s 473DD(b)(i), this would not have completed the IAA's statutory task, given that subpara (b) is expressed in alternatives. The circumstance that the appellant may not have been able to satisfy subpara (b)(i) did not foreclose him being able to satisfy subpara (b)(ii).
Ground 1 38 By this ground, the appellant contended that the FCC should have found that the IAA had committed jurisdictional error by adopting and applying an unduly narrow interpretation of the term "exceptional circumstances" and, accordingly, had failed to consider all the matters capable of constituting the circumstances of his case as exceptional. 39 Generally, and subject to the particular statutory context, circumstances will be exceptional if they are unusual or out of the ordinary: An v Minister for Immigration and Citizenship [2007] FCAFC 97; (2007) 160 FCR 480 at [7] (Lindgren J). In Hatcher v Cohn [2004] FCA 1548; (2004) 139 FCR 425, Keifel J said of the term "exceptional circumstances": [49] 'Exceptional' circumstances, in general terms, are those circumstances which are unusual or out of the ordinary. But the term is also one which may have a wide operation. Factors affecting a person and which set them apart from other persons in a comparable situation may amount to exceptional circumstances. Speaking in the context of extradition, Gleeson CJ, McHugh and Gummow JJ have held that 'special circumstances' need to be 'extraordinary and not factors applicable to all defendants facing extradition'. It was not necessary that any particular circumstance be regarded as special; several factors in combination could constitute special circumstances: … And in Baker v R (2004) 78 ALJR 1483; [2004] HCA 45 at [13] Gleeson CJ considered the use of 'special circumstances' to condition the exercise of judicial discretion. His Honour said: 'This is a verbal formula that is commonly used where it is intended that judicial discretion should not be confined by precise definition, or where the circumstances of potential relevance are so various as to defy precise definition. That which makes reasons or circumstances special in a particular case might flow from their weight as well as their quality, and from a combination of factors.' [50] Although his Honour was speaking of judicial decision-making the observations are apposite here. The words 'exceptional circumstances' may apply to a variety of circumstances and no definition which limits their application should be adopted, unless the limitation appears from the words of the relevant statutory provision. … (Emphasis in the original and citations omitted) 40 In Maan v Minister for Immigration and Citizenship [2009] FCAFC 150; (2009) 179 FCR 581, the Full Court cited with approval a passage from the judgment of Lord Bingham of Cornhill CJ in R v Kelly [2000] QB 198 at [51] as follows: We must construe "exceptional" as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To 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. 41 Generally, consideration of whether exceptional circumstances exist will require consideration of all the relevant circumstances. That is because even though no one factor may be exceptional, in combination the circumstances may be such as reasonably to be regarded as exceptional: Griffiths v The Queen (1989) 167 CLR 372 at 379 (Brennan and Dawson JJ); Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [23]-[26] (Rares J); Hasim v Attorney-General of the Commonwealth [2013] FCA 1433, (2013) 218 FCR 25 at [65] (Greenwood J). 42 The proper construction of the term "exceptional circumstances" in s 473DD should take account of the context in which the term is used. The scheme of Pt 7AA of the Migration Act is to provide a means of "fast track" review of the refusal of certain applications for a protection visa. Particular elements of the scheme are that all "fast track reviewable decision[s]" are to be referred to the IAA as soon as reasonably practicable after the decision is made (s 473CA), the task of the IAA is, prima facie, to review the decision on the papers and without accepting or requesting new information and without interviewing the applicant (s 473DB) and, while the IAA has a discretion to "get" new information, it may consider it only in the limited circumstances specified on s 473DD. Plainly, applicants for a protection visa are expected to present all their claims and all available evidence to the Minister in relation to the decision under s 65. 43 Further, account must be taken of the reference to the exceptional circumstances being such as to "justify" consideration of the new material. In this respect, account should also be taken of the purpose of the IAA decision, namely, to affirm the refusal of the visa or to remit for reconsideration in accordance with such directions or recommendations as are permitted by regulation (s 473CC). That suggests that exceptional circumstances will be those which are out of the ordinary course and which will justify the new information being considered even though it had not been provided to the Minister at the time of the s 65 decision. A variety of matters may be capable of bearing upon those circumstances. 44 The appellant's initial submission was that the IAA had failed to consider the circumstances of his case having regard to the circumstances generally. He submitted that that required the IAA to have taken account of his Tamil ethnicity; that Tamils (including a member of the appellant's own family) had been harmed during the civil war in Sri Lanka; that the appellant had been subjected to questioning on multiple occasions and to a level of monitoring; that the new information concerned torture, sexual violence and threats; that it is known that persons who have suffered sexual violence in particular are often reluctant to disclose their experience; and that the information would have been significant to the appellant's case. 45 In the way the submission was initially presented, it seemed to be an invitation to the Court to engage in a form of appeal of the factual merits of the IAA's decision, rather than to judicial review of a decision. In particular, although the appellant submitted that the matters just summarised were relevant matters, he did not contend that they were mandatory considerations in the sense discussed in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24. 46 However, counsel presented an alternative and more confined submission, contending that there had been a constructive failure to exercise jurisdiction by the IAA. This had occurred because the IAA had confined its consideration of whether there were exceptional circumstances to the evaluation of the appellant's explanation for not having provided the information earlier. This indicated, it was submitted, that the IAA had applied an unduly narrow interpretation of the term "exceptional circumstances". 47 In my opinion, there is force in that submission. The IAA member does seem to have reasoned that her rejection of the appellant's explanation for not having disclosed the new information earlier was decisive of the requirement that the circumstances be exceptional. This seems to reflect an inappropriately narrow understanding of the reach of the term "exceptional circumstances", as discussed earlier in these reasons. 48 Accordingly, I consider that it should be concluded that there was a constructive failure by the IAA to exercise jurisdiction of the kind discussed in Craig v The State of south Australia (1995) 184 CLR 163 at 177-8 and in Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 at [74]. Accordingly, I consider that this ground of appeal also succeeds.
The Notice of Contention 49 The Minister's Notice of Contention was in the following terms: The learned primary Judge should have held that even if the Second Respondent's reasons are interpreted as not dealing with s 473DD(b)(ii) of the Migration Act 1958 (Cth) (the Act), there was no error, for: 1.1 s 473DD(b)(ii) of the Act only applies to information "which was not previously known"; 1.2 it follows that the proper construction of s 473DD(b)(ii) of the Act is to be understood as meaning "not previously known to [the Appellant]; 1.3 in the circumstances of the appeal, the very nature of the new information put to the Authority by the Appellant was information that was previously known; 1.4 accordingly, s 473DD(b)(ii) was rendered inapplicable by the facts and circumstances of the "new information" advanced by the Appellant. (Emphasis in the original) 50 The Minister's contention had its basis in the fact that s 473DD(b)(ii) does not specify expressly the person or persons by whom the information was previously unknown. Counsel submitted that the requirement in subpara (b)(ii) will be satisfied if it is apparent that the information was previously known to the appellant. He submitted further, that in the present case, the new information was of a kind previously known to the appellant. 51 In my opinion, a number of matters point against the correctness of this submission. Instead, subpara (b)(ii) refers, at least principally, to information not known by the original decision-maker. 52 First, as counsel for the appellant pointed out, if there was "credible personal information" not previously known to an applicant, then that information would invariably satisfy the subpara (b)(i) requirement because it would be information which an applicant could not have provided to the Minister before the Minister made the s 65 decision. That being so, the alternative means of satisfying the subpara (b) requirement would be illusory and one would not reasonably suppose that to have been the legislative intention. 53 Secondly, the reference in subpara (b)(ii) to the effect of the information on the consideration of the applicant's claims, had it been known, is strongly suggestive that that subparagraph is referring to the knowledge of the original decision-maker. The IAA is asked to consider the potential impact of the new information on the original decision, thereby implying that it is the effect which the information may have had, had it been known by the original decision-maker. 54 Thirdly, s 15AB of the Acts Interpretation Act 1901 (Cth) permits regard to be had to the Bills for the introduction of the 2014 Amendment and to the Explanatory Memoranda relating to those Bills. In the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth) introduced into the House of Representatives on 25 September 2014, Clause 473DD was expressed as follows: Clause 473DD - 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; (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 was not, and could not have been, provided to the Minister before the Minister made the decision under s 65. 55 After the Senate's consideration of the Bill, an amended Bill was considered by the House of Representatives on 5 December 2014. This Bill contained s 473DD in the form which now appears in the Migration Act, that is, including subpara (b)(ii). 56 In a Supplementary Explanatory Memorandum, the Minister said of the revised para 473DD: [28] The effect of new paragraph 473DD(b) is that it will provide that a new type of "new information" that a referred applicant can present to the IAA can be credible personal information which was not previously known and had it been known, may have affected the consideration of the fast track review applicant's claims. [29] This new provision will extend the types of "new information" that a referred applicant may present to the IAA to include, for example, evidence of significant torture and trauma which, if it had been known by either the Minister or the referred applicant, may have affected the consideration of the referred applicant's asylum claims by the Minister. (Emphasis added) The reference to an extension of the types of new information which may be presented is inconsistent with the construction of subpara (b)(ii) for which the Minister contends in the Notice of Contention. 57 Accordingly, I do not accept that submission. Instead, subparas (b)(i) and (ii) should be understood as referring to different kinds of new information: subpara (b)(i) requires a factual enquiry as to whether or not the new information could have been presented to the Minister whereas subpara (b)(ii) requires an evaluation of the significance of the new information in the context of an applicant's claims more generally. 58 For these reasons, I would not uphold the Minister's Notice of Contention. 59 This conclusion makes it unnecessary to consider whether the contents of the letter from the appellant's general practitioner had been known by the appellant at the time of the Minister's s 65 decision.
Conclusion 60 For the reasons given above, I consider that the appeal should be allowed. There will be orders as follows: (1) The orders of the Federal Circuit Court made on 3 March 2017 are set aside. (2) The decision of the Immigration Assessment Authority of 16 June 2016 affirming the decision not to grant the appellant a Protection visa is set aside. (3) The matter is remitted to the Immigration Assessment Authority for consideration by another member in accordance with the law. 61 I will hear from the parties as to costs and as to any other matters. I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White.
BVZ16
Minister for Immigration and Border Protection
[2004] HCA 45
(2007) 160 FCR 480
(1995) 184 CLR 163
(1989) 167 CLR 372
(2013) 218 FCR 25
(2004) 139 FCR 425
(2010) 239 CLR 531
(2009) 179 FCR 581
(1986) 162 CLR 24
(1996) 185 CLR 259
(2004) 78 ALJR 1483
[2010] HCA 1
The orders of the Federal Circuit Court made on 3 March 2017 are set aside. The decision of the Immigration Assessment Authority of 16 June 2016 affirming the decision not to grant the appellant a Protection visa is set aside. The matter is remitted to the Immigration Assessment Authority for consideration by another member in accordance with the law.