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[2017] FCAFC 192
appellant. Appeal allowed; orders of the Federal Circuit Court set aside and in lieu thereof the decision of the Immigration Assessment Authority dated 25 July 2016 is set aside; parties to file written...
2 cited instruments linked from this judgment.
The Full Federal Court held that the Immigration Assessment Authority made a legal mistake when it refused to look at important new evidence from a Sri Lankan Tamil father about his wife being sexually assaulted by CID officers, family arrests, suicide attempts and threats tied to his past and illegal departure from Sri Lanka. The Authority only focused on the fact that these events happened before the original visa refusal and that the man had chances to speak earlier. The court said this was too narrow an approach to 'exceptional circumstances' under s 473DD. All surrounding facts, including why the information came late, its seriousness and how it could affect the protection claims, had to be considered. The appeal was allowed, the Authority's refusal was quashed, and the case must be looked at again properly.
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The appellants, a Tamil father (CHF16) and his teenage son (CHG16) from Trincomalee in Sri Lanka's Eastern Province, arrived in Australia by boat and lodged a combined Safe Haven Enterprise Visa (SHEV) application on 21 August 2015. They claimed protection on the basis of their Tamil ethnicity, Hindu religion, and fear of harm from Sri Lankan authorities, LTTE-related accusations, and criminal elements. The delegate refused the application on 9 June 2016 after an interview on 28 October 2015 at which a registered migration agent was present and after a post-hearing submission had been filed on 11 November 2015.
On 4 July 2016 the father provided a detailed submission to the Immigration Assessment Authority (the Authority) under the fast-track review regime in Part 7AA of the Migration Act 1958 (Cth). That submission contained extensive "new information" not before the delegate. It alleged that, after the interview but before the delegate's decision, CID officers in Sri Lanka had arrested the father's extended family members in Mullaitivu, that in May 2016 CID officers had sexually assaulted his wife in Trincomalee (leading to a suicide attempt of which the children were unaware), that the family had been branded as LTTE supporters because of the father's and son's illegal departure, and that the CID had obtained the family's details from the Department through the data-breach publication on the Department's website. The submission also explained the father's earlier reluctance to disclose these matters: he had believed he would be granted protection, feared that interpreters or Department officers might pass information to Sri Lankan authorities, and was mentally traumatised by the events.
At paragraph [5] of its reasons dated 25 July 2016 the Authority expressly recognised that the submission contained "new information" within the meaning of s 473DC. It summarised the new claims (arrest of extended family, sexual assault of the wife in May 2016, her suicide attempt, and the applicant's forced work for the LTTE). It then noted the opportunities the applicant had been given at interview and in writing, the presence of a migration agent, and the fact that "this new information relates to events which occurred prior to the primary decision being made." On that basis the Authority stated it was "not satisfied there are exceptional circumstances to justify considering the new information" under s 473DD(a). The Authority proceeded to affirm the delegate's decision, finding the father did not meet the refugee criterion in s 5H(1) or the complementary protection criterion in s 36(2)(aa), and that the son therefore could not satisfy the family-unit criteria.
The appellants sought judicial review in the Federal Circuit Court. That Court dismissed the application on 6 March 2017, holding at [42] and [65] that on a fair reading the Authority had taken the appellants' claims into account and was not required to set out every circumstance when deciding whether exceptional circumstances existed. The appellants appealed to the Full Federal Court. By the time of the appeal hearing on 10 November 2017, the Full Court had delivered judgment in Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176, which itself approved the construction of s 473DD adopted by White J in BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958. The Full Court (Gilmour, Robertson and Kerr JJ) granted leave to rely on the amended grounds, allowed the appeal, set aside the orders of the Federal Circuit Court, quashed the Authority's decision, and directed the parties to file written submissions on costs.
The dispositive reasoning appears at [44]. The Court read paragraph [5] of the Authority's reasons "as a whole and in context" and concluded that the Authority had confined its consideration of "exceptional circumstances" to two matters only: (i) that the new information related to events which occurred prior to the primary decision, and (ii) that the applicant had been given multiple opportunities to present his claims earlier but had not done so. The Authority had not addressed why the information had not been provided earlier (the explanations contained in the 4 July 2016 submission), whether the information was "credible personal information" not previously known to the Minister which might have affected the consideration of the claims (s 473DD(b)(ii)), or any other circumstances of the appellants.
This approach was held to reflect the same error identified in BVZ16 and BBS16. At [18] the Court expressly approved White J's statement that the phrase "exceptional circumstances" must be given a broad meaning "along the lines of circumstances which are unusual or out of the ordinary" and that this "necessarily requires that consideration be given to all the relevant circumstances". The Court emphasised at [44] that the Authority had not "address[ed] 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". The overlap between s 473DD(a) and (b) meant that a failure to consider the (b) integers could vitiate the (a) assessment.
The Full Court rejected the Minister's invitation to read [5] more benevolently. It refused to infer that the Authority had weighed the content of the new claims, the applicant's mental trauma, the gravity of the sexual assault allegation, or the data-breach context simply because those matters appeared earlier in the reasons. The Court noted at [47] that the explanations in the 4 July letter were not contradictory but cumulative, and that the Authority had made no finding that they were inconsistent. Because the Authority had misunderstood the scope of the power conferred by s 473DD(a), it had failed to perform the statutory task required by s 473DB(1) and had fallen into jurisdictional error. The primary judge's conclusion at [65] that the Authority had taken the appellants' claims into account was therefore erroneous.
The Court found it unnecessary to decide two further issues: whether the Authority must make express findings on both (a) and (b) once it has found one limb unsatisfied ([46]), and whether s 473EA and s 25D of the Acts Interpretation Act 1901 (Cth) impose a duty to give reasons for the exceptional-circumstances conclusion ([49]). Those questions were left for future cases.
Prior to BVZ16, BBS16 and the present case, the precise content of "exceptional circumstances" in s 473DD(a) had received little authoritative treatment. Section 473DD was inserted by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) as part of the fast-track review scheme intended to streamline decisions on protection claims by unauthorised maritime arrivals. The statutory text is deliberately terse: the Authority "must not consider any new information unless" both (a) and (b) are satisfied. Early single-judge decisions had taken divergent approaches to whether the Authority was obliged to consider the (b) matters when assessing (a).
BVZ16 (White J) clarified that the two limbs are cumulative but may overlap, that satisfaction of either (b)(i) or (b)(ii) may contribute to a finding of exceptional circumstances, and that "exceptional circumstances" is not limited to the (b) integers but requires a broad evaluation of all relevant circumstances. BBS16 (Tracey, Murphy and Kerr JJ) expressly approved that reasoning at [102]-[104], emphasising that the phrase connotes circumstances that are "unusual or out of the ordinary" and that the Authority must consider "all the relevant circumstances". BBS16 also settled the construction of s 473DD(b)(ii), holding that "not previously known" refers to knowledge of either the Minister or the applicant.
The present judgment consolidates that position. After CHF16, the law is clear that an Authority which confines its exceptional-circumstances assessment to the mere fact that the information relates to pre-decision events, or to the existence of earlier opportunities to present claims, without considering the applicant's explanations, the credibility or potential impact of the information, or any other relevant circumstance, commits jurisdictional error. The decision reinforces that the fast-track regime does not relieve the Authority of the obligation to engage in a real and substantive evaluation of the statutory criteria. It also confirms that a "fair reading" of the Authority's reasons cannot cure a fundamental misconstruction of the power.
Paragraph [5] of the Authority's reasons (the critical passage):
"This new information relates to events which occurred prior to the primary decision being made. I am not satisfied there are exceptional circumstances to justify considering the new information."
Plain-English translation: The Authority decided the only thing that mattered was that the horrible things the man described had already happened before the visa officer made the first decision. Because he could have mentioned them earlier, there were no "special reasons" to look at them now. The Full Court said this reasoning was far too narrow.
Paragraph [44] (the Full Court's dispositive finding):
"In our opinion, the proper and fair reading of [5] the Authority's reasons is that, in considering whether or not it was satisfied that there were exceptional circumstances, it considered only the fact that the new information which related to events which occurred prior to the primary decision being made was not brought forward before. It did not take into account why the new information was not brought forward before or any other circumstances."
Plain-English translation: When we read the Authority's short paragraph sensibly and in context, it is obvious they only asked one question: "Did these events happen before the first decision?" They never asked why the man waited until July to tell them, whether the story about his wife's rape and the family's arrests was believable, or how serious the consequences would be if the story was true. That was the wrong legal test.
Paragraph [18], adopting BBS16:
"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 there are 'exceptional circumstances'"
Plain-English translation: "Exceptional circumstances" does not have a narrow or technical meaning. It simply means something out of the ordinary. To decide whether something is out of the ordinary you must look at every relevant fact about the particular case, not just one or two convenient ones.
Paragraph [46] (leaving a question open):
"Whether it is possible, as a matter of substance in a given case, to consider all exceptional circumstances without considering whether the new information could not have been provided to the Minister before the Minister made the decision or was credible personal information not previously known which may have affected the consideration of the claims, we prefer to leave to a case in which it is necessary to decide it."
Plain-English translation: The Court is not deciding today whether an Authority could ever lawfully say "no exceptional circumstances" without also looking at the specific questions in s 473DD(b). But it warned that trying to ignore (b) while deciding (a) is risky and may miss the real point of the statute.
CHF16 will be engaged whenever an Authority purports to apply s 473DD but its reasons disclose that it has limited its exceptional-circumstances assessment to the temporal fact that the "new information" concerns events predating the delegate's decision or to the existence of prior opportunities to present claims. Typical triggers include:
The precedent is not engaged if the Authority expressly weighs the applicant's explanation for late disclosure, the objective credibility of the new material, its potential effect on the refugee or complementary protection assessment, country information updates, and any other case-specific integers, even if it ultimately finds the circumstances are not exceptional.
Subsequent Full Court and single-judge decisions have treated CHF16 as authoritative on the breadth of the "exceptional circumstances" inquiry. It has been applied to set aside Authority decisions that focused solely on the timing of events or on the applicant's failure to provide information "at the earliest opportunity". Courts have cited [44] of CHF16 for the proposition that a "proper and fair reading" of concise reasons may nevertheless reveal an impermissibly narrow approach.
The decision has been read together with BBS16 and BVZ16 as forming a trilogy that defines the current law. Later cases have confirmed that the Authority is not required to "slavishly" list every circumstance, but its reasons must not demonstrate that it has excluded obviously relevant integers. The open question left at [49] concerning the obligation to give reasons has continued to generate litigation, with some judges holding that s 25D of the Acts Interpretation Act applies to the s 473DD anterior decision while others have preferred to decide cases on narrower grounds.
CHF16 has also been distinguished in cases where the Authority's reasons, although brief, expressly refer to the content of the new claims, the applicant's mental health, the plausibility of the new allegations, and the absence of any satisfactory explanation for non-disclosure. In those matters courts have been willing to infer that a broader assessment occurred.
Three significant issues remain unresolved after CHF16. First, the precise content of the duty (if any) to give reasons for a conclusion that exceptional circumstances do not exist. The Court expressly declined to decide whether s 473EA read with s 25D of the Acts Interpretation Act requires the Authority to set out findings on material questions of fact and the evidence relied upon when it refuses to consider new information. That question continues to divide single judges and awaits Full Court clarification.
Second, the Court left open whether, as a matter of substance, it is possible to conduct a lawful exceptional-circumstances assessment without considering the integers in s 473DD(b). While the Minister's formal submission that satisfaction of (a) alone is sufficient was acknowledged as literally correct, the Court noted at [46] that such an approach "has a tendency to sidestep the real issue". Future cases will have to decide whether an Authority that ignores (b) can ever demonstrate it has lawfully considered all relevant circumstances.
Third, the interaction between s 473DD and the obligation of procedural fairness (or its statutory analogue in Part 7AA) remains unsettled in cases where the new information, if accepted, would fundamentally alter the factual matrix. CHF16 did not have to address whether a failure to consider credible new information that could affect the outcome might also breach the duty to conduct a "review" under s 473DB. That issue, and the related question of the materiality threshold for jurisdictional error in the fast-track context, will require further litigation.
Practitioners should therefore continue to argue, in appropriate cases, that the Authority's reasons demonstrate a narrow approach, that the Authority was required to weigh the specific explanations and the inherent seriousness of the new claims, and that the statutory duty to give reasons extends to the anterior s 473DD decision. Until the Full Court resolves the open questions, each case will turn on a close forensic reading of the Authority's paragraph dealing with new information.
Introduction 1 This appeal has as its central issue the proper and fair reading of the reasons of the Immigration Assessment Authority (the Authority), given on 25 July 2016. 2 The context in which that issue arises is provided by s 473DD of the Migration Act 1958 (Cth), a section in Pt 7AA. This section prevents the Authority from considering new information except in exceptional circumstances. 3 The appeal is from the judgment and orders of the Federal Circuit Court of Australia given and made on 6 March 2017 dismissing, with costs, the application for judicial review to that Court.
Factual circumstances 4 As found by the Authority, the two appellants are a family unit consisting of a father and his (then) teenage son. They claimed to be of Tamil ethnicity and of Hindu religion and to be from Trincomalee, Eastern Province, Sri Lanka. On 21 August 2015, the appellants lodged a valid application for a Safe Haven Enterprise Visa (SHEV). 5 The Authority found that it was prevented from considering certain information in a submission from the appellant father made on 4 July 2016 because it was "new information" and the Authority was not satisfied that there were exceptional circumstances to justify considering the new information. 6 The substance of the matter was considered by the Authority under the following headings: "Fear of Harm from the Sri Lankan Authorities" and "Failed Asylum Seeker/Illegal Departure/Data Breach" and the conclusion was reached, at [49], that "The applicant [father] does not meet the requirements of the definition of refugee in s. 5H(1). The applicant does not meet s.36(2)(a)." 7 The Authority then made a complementary protection assessment and concluded, at [58], that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there was a real risk that the appellant father will suffer significant harm. The appellant did not meet s 36(2)(aa). 8 The Authority also said, at [60], that as the appellant father did not meet the definition of refugee or the complementary protection criterion, it followed that the appellant son did not meet the family unit criteria in either s 36(2)(b)(i) or s 36(2)(c)(i).
The statutory provisions 9 The central provision was in the following terms: 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. 10 Section 473DC defined "new information" as follows: 473DC Getting new information (1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that: (a) were not before the Minister when the Minister made the decision under section 65; and (b) the Authority considers may be relevant. 11 These provisions have been construed and applied recently in BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958 and in Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176.
The amended notice of appeal 12 The ground of appeal was that the Federal Circuit Court erred "in failing to make a judgment independent of the IAA findings as to whether there were exceptional circumstances in whether to exercise power under s473DD of the Act." 13 The appeal was argued as raising the question whether the Authority fell into jurisdictional error when considering its obligations under s 437DD. It was submitted that the Authority failed to recognise the "new information" before it; that it adopted an incorrect interpretation of the term "exceptional circumstances"; that as a result it failed to consider all the circumstances of the appellants when deciding whether the circumstances of the case were exceptional; and that it erred in determining that there were no exceptional circumstances in existence to justify the consideration of the "new information".
The Authority's decision on s 473DD 14 The submissions dated 4 July 2016 to the Authority from the appellant father contained the following: I refer to the above matter and to the letter dated 9 June 2016 from the Department of Immigration and Border Protection (DIBP) and to your letter dated 15 June 2016. In your letter dated 15 June 2016 you attached an information sheet where you indicated that I can provide to you any new information if there are any exceptional circumstances that I can justify for you to consider. Further the information is relevant and was not provided to the DIPB when it made the decision. The following new information that I am providing below was not provided to the DIBP before the DIBP rejected my application and I am of the opinion that if I got the opportunity to provide the following information to the DIBP before it made the decision, it would have definitely affected the DIBP decision. After I attended the interview with the DIBP, I was satisfied that I would be granted protection in Australia and I would not be sent back to Sri Lanka to face harassment and torture leading to death from the Sri Lankan government authorities, Sri Lankan Tamil armed groups and from the criminal minded CID and police officers in civil who were following me and were in search to arrest me before I departed Sri Lanka New Information: After I arrived in Australia the above criminal minded officers had been harassing my wife and children since then. I had indicated this to the DIBP but was not taken into consideration when deciding my case. Now the situation has turned out to be more dangerous after the CID officers started to arrest my extended family members who were in Mullaitivu along with me after the conflict in 1990. My sister's family members and my wife's family members are presently targeted by the CID officers recently. I got the information only recently before my case was rejected and hence I consider these as real evidence to be taken into consideration. My sister []'s husband [] owns a cycle shop. In 2008, one of the senior army officers was shot by the LTTE cadre who was waiting at the entrance of the cycle shop while my brother in law Y[] was involved in the repairs. My brother in law was arrested as the LTTE cadre escape arrest and was branded as a LTTE accomplice. In 2013, []'s case was adjourned and the CID or police or army did not proceed with the case. My elder sister is married to my wife's brother Mr S[] who owns his own business dealing with Mechanical and Electronical repairs. My wife's other brother N[] was also living with all of us in Mullaitivu between 1990 and 2003. The CID in Thambalakamam had arrested all three of them Mr [], S[] and N[] on the grounds that they had been serving in the LTTE. During the interrogation the CID officers had mentioned to them that they are aware that my son P[] and I had fled from Sri Lanka by illegal boat and they had gathered information from the DIBP as to our details in Australia. My brothers in law were taken for interrogation separately and was questioned as to their involvement in the LTTE before 2003. They had questioned them as to my involvement as well. The officers continue to interrogate them and had ordered them to report to them when they arrest me at the airport on my arrival in Sri Lanka. They have indicated that I had been serving as a LITE cadre fighting the Sri Lankan Army in the past and had escaped arrest before they confirmed my participation in the war. My brothers-in law were released after the intervention of the local members of the Parliament after the officers had been bribed. The CID officers are still visiting home asking whether I had returned back by illegal means into Sri Lanka. They had told them that I would be taken away and killed for escaping by illegal means and for waging war against the Sri Lankan Army. In May 2016, the CID officers had visited home and questioned my wife living in Trincomalee town as to my expected return back to Sri Lanka. The officers asked my wife why she was living in Trincomalee town when all her relatives are living in Thambalakamam. The officers knew that my wife was alone after the children left to school had visited her and had questioned my wife as to our involvement in the LTTE in the past between 1990 and 2003. My wife had repeatedly denied any involvement in the LTTE and the CID officers had sexually abused my wife. They had warned my wife to keep the matter secret and if she attempted to publicise their atrocities she would be taken away and killed. The officers had visited her repeatedly that she had to move to Thambalalkamam to evade further sexual harassment. The relatives and neighbours in Thambalakamam including the doctors are aware that the CID officers had reaped my wife. My wife attempted to suicide before the children came to realize what happened to her. My son in Australia is unaware as to these incidents and I beg and plead with you to treat this information as a secret as it could affect my children's life. My children in Sri Lanka had questioned my wife and she had managed to convince them as a false rumor, I am unable to give protection to my wife being her husband and I am mentally traumatised and depressed from the time I heard this information. The CID officers are visiting my relatives and are threatening them with imprisonment if they informed the Human Rights organization or the Red Cross or any other local or foreign media as to this atrocities. The CID had told my wife that when they arrest me on my arrival she would be left alone. They threatened my wife that if I tried to escape arrest from them my other twin son P[] would be abducted and my brothers-in-law would be taken into custody. There is no rule of law in Sri Lanka. The Prevention of Terrorism Act is in force and still people are taken for interrogation and some of them are murdered once it is established that they are LTTE supporters in the past. Many innocent Tamil youths and LTTE supporters are still interrogated and sexually harassed daily in Sri Lanka. The Sri Lankan government continues to convince the foreign countries with exaggerated procedures that they would not arrest failed asylum seekers overseas. In reality they are arresting all those who returned back recently. The government's intention is to wipe out the Sri Lankan Tamils were supporters of the LTTE in the past so that no one would come forward to regroup the LTTE in the future. In my case the DIBP had made publicly available our personal information on their Immigration website through which the Sri Lankan CID officers had access to the Sri Lankan who escaped persecution through illegal boats to Australia. As I am one of them, the CID had arrested my relatives, raped my wife and had threated to abduct my other twin son if my son and I failed to surrender to them on our return. I made this application through a foreign lawyer who used an interpreter to understand me to lodge this statement and application. During the interview with the lawyer who helped me and also during the interview with the DIBP case officer both with the assistance of Tamil interpreters, I feared to mention information about me and my family as I feared that either the DIBP or the interpreters could pass those information to the Sri Lankan authorities. There is no other way for the CID officers to know how we fled from Sri Lanka. Now my life is at stake. I could be arrested and killed on my arrival in Sri Lanka. If my application is rejected, I would end up being tortured and killed by the CID. No one has the power to take these CID officers or the army officers or the murderers who are the Tamil armed groups to the Courts who are responsible for the murders that are happening behind closed doors. No foreign journalists or foreign humanitarian organization are given access to these innocent victims so that they could publicise these atrocities to the worlds. Already the Sri Lankan ex president Rajapakse is escaping from being tried for genocide and the present president Sirisena who was a minister under Rajapakse regime is protecting him. These are new information for you to consider. I feared to mention these during the interview as I could be departed by the Australian government, which had already departed Sri Lankan Tamil boat arrivals in the past, who have disappeared. I do not want to be one of them. 15 The paragraph of the Authority's decision and reasons applying s 473DD read as follows, at [5]: In the submission the applicant also raised that: just before his SHEV was finalised, the Criminal Investigation Department (CID) in Sri Lanka arrested his extended family members; in May 2016 his wife was sexually assaulted by CID officers on the basis of the applicant's involvement with the LTTE and his subsequent illegal departure to Australia; his wife has subsequently attempted to commit suicide; while residing in Mullaitivu, the applicant had been forced to work for the LTTE and will be identified upon return by ex-LTTE cadres who now work for the CID. This information was not before the delegate and I consider it to be 'new information.' The applicant was interviewed in relation to his claims for protection on 28 October 2015 with a registered migration agent present. During this interview the applicant was provided the opportunity to present all his claims for protection. At the end of the interview the delegate provided the applicant an opportunity to submit any further detail to his claims for protection. The delegate also provided the applicant's representative an opportunity to provide a written submission which was submitted to the delegate on 11 November 2015. During the interview the applicant was explained (sic) the importance of providing all his claims for protection as early as possible. The applicant was also represented by a registered migration agent who was provided through the Department's Primary Application Information Service (PAIS). A decision was made on 9 June 2016. This new information relates to events which occurred prior to the primary decision being made. I am not satisfied there are exceptional circumstances to justify considering the new information.
The parties' submissions 16 As we have said, the appellants submitted that the Authority failed to recognise the "new information" before it; that it adopted an incorrect interpretation of the term "exceptional circumstances"; that as a result it failed to consider all the circumstances of the appellants when deciding whether the circumstances of the case were exceptional; and that it erred in determining that there were no exceptional circumstances in existence to justify the consideration of the "new information". 17 The appellants relied on BVZ16 at [8]-[9] and on BBS16. In the former case, White J said: [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. … [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). 18 In the later decision, BBS16, the Full Court said: [77] In BVZ16, White J found that the IAA had adopted an inappropriately narrow understanding of the scope of the term "exceptional circumstances" in applying s 473DD. In particular, his Honour found that the IAA was wrong to reason that there were no exceptional circumstances because the rejection of the referral applicant's explanation for not having disclosed the new information earlier was decisive of the requirement that the circumstances be exceptional. The Minister submitted that the IAA can only consider new information if both ss 473DD(a) and (b) are satisfied. The Minister drew attention to White J's description of these requirements as "conjunctive". The Minister submitted, however, that White J erred in his reasoning at [9] and [35]-[36] of BVZ16 in concluding that the IAA was obliged under s 473DD to consider, and make findings on both alternative limbs of s 473DD(b) in order to be satisfied under s 473DD(a). Accordingly, so the Minister submitted, if the IAA is not satisfied as to the matter in (a), it is unnecessary for it to proceed to make findings in relation to either of the limbs in (b). … [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 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 there are "exceptional circumstances" (see the authorities cited by his Honour at [39]-[41] of BVZ16). … [106] We also respectfully agree with White J's conclusion and reasons for rejecting the Minister's claim in support of his notice of contention in BVZ16 that, on the proper construction of s 473DD(b)(ii), the phrase "which was not previously known" should be construed as meaning "not previously known to [the referred applicant]". The provision applies to new information which is given to the IAA by a referred applicant which, if it had been known by either the Minister or the referred applicant, may have affected the consideration of the referred applicant's claims for protection. This is made clear by [29] of the Supplementary Explanatory Memorandum to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 which, in addressing revised paragraph 473DD of the Bill said (emphasis added): 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 consideration of the referred applicant's asylum claims by the Minister. … [112] For these reasons, we consider that the IAA made a similar error to that which was identified in BVZ16. Instead of addressing other matters which were potentially relevant to the issue of "exceptional circumstances", including the first respondent's explanation as to why he had not previously disclosed his affiliation with AFLA, the IAA reasoned that, because the referred applicant had not provided any explanation as to why the new information could not have been provided earlier, the IAA was not satisfied that there were exceptional circumstances. That reflects a misconstruction and misapplication of s 473DD. 19 The appellants submitted that the Authority confined its consideration of whether there were "exceptional circumstances" to a finding that the new information related to events that occurred before the primary decision was made. It was submitted that this conflated s 473DD(b) with s 473DD(a) and considered the timing of the events relating to the new information as the only relevant circumstance in determining whether there were exceptional circumstances, without having regard to all of the other circumstances of the appellants in the context in which the information was sought to be relied upon by them. 20 The appellants submitted that the primary judge was in error at [42] and [65]. 21 In those paragraphs, the primary judge reasoned as follows: [42] The Authority referred to the date of the decision and relevantly said that this new information relates to events which occurred prior to the primary decision being made. It was in those circumstances that the Authority was not satisfied there were exceptional circumstances to justify considering the new information. … [65] … In exercising the power under s. 473DD of the Act, it is not necessarily (sic) for the Authority to set out all the first applicant's circumstances in considering whether to exercise the power under s.473DD of the Act. On a fair reading of the Authority's reasons, it is apparent that the Authority did take into account the first applicant's claims in relation to considering whether there were exceptional circumstances to justify considering the new information. 22 As to [42], the appellants submitted that, even if it were open to the primary judge to infer that the Authority, having considered that the events to which the new information related occurred before the primary decision, held that s 473DD(b) could not be satisfied, it was necessary for the Authority to consider also s 473DD(a) and failure to consider that provision would amount to a jurisdictional error, referring to BVZ16 at [36] and [37]. As to [65], the appellants submitted that the primary judge's construction of s 437DD was wrong in law, having regard to the construction and application of that provision in BVZ16. 23 The appellants submitted that the primary judge fell into the same error as the Authority in only considering the temporal elements - that the information related to events that occurred before the primary decision - of whether the new information was able to be considered and did not have regard to all the circumstances. 24 The appellants also submitted that it was not open for the primary judge to make the findings he made at [65] where the content of the Authority's reasons in respect of the exercise of its power pursuant to s 473DD was confined to its [5]. 25 The Minister submitted that the appellant father gave conflicting explanations in his 4 July 2016 letter as to why he had not provided the new information earlier to the delegate. One reason was that he was satisfied that he would be granted protection in Australia and another was that he feared to mention the information to either the Department or the interpreters because he believed they might pass information to the Sri Lankan authorities. 26 The Minister submitted that the Authority set out the key aspects of the new information, identified why it was new information and recounted the multiple opportunities the appellant father had had to provide information, noted that he had been represented and, in all those circumstances, was not satisfied there were exceptional circumstances to justify considering the new information. The Authority did not refer to the appellant father's distress because it was plainly not the basis upon which he had chosen not to provide the information to the delegate. 27 In those circumstances, the Minister submitted, the primary judge held that the Authority was not required to, in effect, slavishly set out all of the appellants' circumstances in determining whether there were exceptional circumstances to justify considering new information. 28 The Minister submitted the last two sentences of [5] should not be read in isolation. The Minister disputed that the Authority's not being satisfied that there were exceptional circumstances to justify considering new information resting entirely upon the sentence before, or turning entirely upon the fact that the new information related to events which occurred prior to the primary decision being made. 29 What happened, the Minister submitted, was that the Authority noted the submission at the beginning of [4]. At [5], the Authority was showing its awareness of the content of what was being said in the submission that was new. 30 There was no reason to assume or conclude on the probabilities that the Authority was not cognisant of the content or had it out of its mind for the purpose of its exercise of deciding whether or not there were exceptional circumstances. 31 So all of those things, at least, were ultimately taken into account in support of the conclusion that there were no exceptional circumstances to justify considering the new information. 32 While most of the points went to the integer that the appellant father could have provided the information but did not, the Authority was also aware of the content of the information, and although the Authority may ultimately have seen the matter that the appellant father could have provided information, but did not, as being the most important, it could not be said that the conclusion that there were exceptional circumstances was based entirely upon the proposition that the information related to events which occurred prior to the decision being made. 33 The Minister submitted that, first, it was permissible for the Authority to take into account in deciding this question whether or not the appellant father had had ample opportunity to raise it. There could be no criticism of it doing that. Even only looking at that matter was going beyond considering merely the fact that the events occurred prior to the decision being made. But also, that the Authority plainly gave weight to the fact that the appellant father did not, despite opportunity, bring forward the new information did not mean that the Authority ignored what was in the information or did not consider anything else. 34 The Minister submitted that the error now alleged was not before, nor the error considered by, the primary judge. 35 The Minister submitted that the Authority's reasons at [5] should be read as setting out what the Authority regarded as the matters of most weight. The Authority had no duty "to state reasons for it being satisfied or not satisfied under s 473DD". Section 473EA, which provided that, if the Authority made a decision on a review under Pt 7AA, the Authority must make a written statement that: (a) set out the decision of the Authority on the review; and (b) set out the reasons for the decision, did not apply to the Authority's state of mind as to whether or not there were exceptional circumstances to justify considering new information. 36 The Minister submitted that there was no obligation cast by s 473DD to consider and make findings upon both (a) and (b) once the Authority had found that either (a) or (b) was not satisfied. 37 The Minister submitted that there could be no error on the part of the Authority in failing to address an argument that was never put to it in relation to a claim that was never made to it. 38 The Minister submitted that, even if the Authority did err as alleged by the appellants, a grant of relief was futile as the appellant father could not satisfy the requirements of s 473DD(b). 39 In relation to BBS16, the Minister submitted that the main point of distinction with the present case was that, in BBS16 at [110]-[112], the Full Court found that the Authority, in that case, had not considered the referred applicant's reason for not telling the delegate the "new information" later given to the Authority. No such inference should be drawn here. 40 In answer to the Minister's submission that the Authority had no duty to state its reasons for concluding that it was not satisfied that there were exceptional circumstances, the first appellant relied on s 25D of the Acts Interpretation Act 1901 (Cth): see at [7] of his written submissions filed, by leave, on 24 November 2017 after the hearing. That provision is in the following terms: 25D Content of statements of reasons for decisions Where an Act requires a tribunal, body or person making a decision to give written reasons for the decision, whether the expression "reasons", "grounds" or any other expression is used, the instrument giving the reasons shall also set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based. 41 The first appellant's submission was that the state of satisfaction of the Authority under s 473DD was a finding on a material question of fact and accordingly, pursuant to s 25D of the Acts Interpretation Act, the Authority was required to set out within the written decision such findings. The first appellant submitted there was a statutory duty to give reasons in respect of both the Authority's overall "decision" and in respect of its satisfaction or otherwise pursuant to s 473DD. In any event, because the exercise of power pursuant to s 473DD was so determinative of the overall decision on the grant of a visa, the duty to give reasons "for the decision" extended to reasons for the "exercise of the power." The first appellant also referred to Minister for Immigration and Border Protection v AMA16 [2017] FCAFC 136 at [74] where, in a different context, Griffiths J said that the fair-minded lay observer should be attributed with knowledge of the following relevant matters:: (a) the IAA had a statutory obligation under s 473EA to give a written statement for its decision, including the reasons for the decision; and (b) consistently with the Minister's concession in the appeal, s 25D of the Acts Interpretation Act 1901 (Cth) also applies with the consequence that the IAA's statement of reasons must also set out the IAA's findings on material questions of fact and refer to the evidence or other material on which those findings were based. 42 The second appellant, in his written submissions filed by leave after the hearing, submitted in this respect that the statutory scheme was not consistent with the limited scope of s 473EA(1) propounded by the Minister. Section 473DD clearly contemplated the making of a decision by the Authority as to whether or not there were "exceptional circumstances." The proposed limited scope of s 473EA(1) as only applying to a "final decision" and not an "antecedent decision" required the insertion of words of limitation into s 473EA(1). The second appellant also relied on s 25D of the Acts Interpretation Act and on AMA16.
Consideration 43 We grant leave to the appellants, to the extent it is necessary, to rely on the arguments advanced in their written submissions. The dispositive issue is one of statutory construction, where that issue of construction has been the subject of higher judicial authority since the decision of the primary judge on 6 March 2017. In the circumstances, we see no prejudice to the Minister, other than perhaps in relation to costs below. We will hear the parties on the question of the costs below. 44 In our opinion, the proper and fair reading of [5] the Authority's reasons is that, in considering whether or not it was satisfied that there were exceptional circumstances, it considered only the fact that the new information which related to events which occurred prior to the primary decision being made was not brought forward before. It did not take into account why the new information was not brought forward before or any other circumstances. 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. We do not accept the submission on behalf of the Minister that the paragraph should be read as, in effect, containing other reasons for the conclusion of the Authority. In so concluding, we have read the paragraph as a whole and in context. 45 It follows that, in our view, the primary judge was in error in concluding, at [65] and [66] that the Authority did take into account the appellants' claims in relation to considering whether there were exceptional circumstances to justify considering the new information. 46 There is one point of construction which we do not find it necessary to pursue. This point is the Minister's submission that there is no obligation cast by s 473DD to consider and make findings upon both (a) and (b) once the Authority has found that either (a) or (b) was not satisfied. It is not necessary to consider this point further because the Authority in the present case has misunderstood the scope of (a) of s 473DD when concluding that it was not satisfied that there were exceptional circumstances to justify considering the new information. Whether it is possible, as a matter of substance in a given case, to consider all exceptional circumstances without considering whether the new information could not have been provided to the Minister before the Minister made the decision or was credible personal information not previously known which may have affected the consideration of the claims, we prefer to leave to a case in which it is necessary to decide it. In a formal sense the Minister's submission is correct but, as a matter of substance, it has a tendency to sidestep the real issue. 47 Although we do not see it as presently relevant, we do not accept the submission on behalf of the Minister, at [21], that the appellant father gave conflicting explanations in his 4 July 2016 letter as to why he had not provided the new information earlier to the delegate. The Authority did not so find and as we read the letter the statements are not in conflict but are cumulative. 48 As to the Minister's submission that a grant of relief would be futile as the appellant father could not satisfy the requirements of s 473DD(b), we refer in this respect to the decision of the Full Court in BBS16 at [106], which we have set out above. The Authority did not decide the issue on this ground and the question of law has been decided against the Minister by the earlier Full Court. That question of law was whether "not previously known" applied only to the referred applicant. Since that expression applies also to the Minister, that issue remains, or may remain, to be explored by the Authority. The Minister accepted this construction at [8] of his written submissions on BBS16 filed, by leave, after the hearing. 49 Although other matters were the subject of submissions, we do not find it necessary to deal with them. In particular, whether or not there is an obligation on the Authority, arising from either or both s 473EA of the Migration Act and s 25D of the Acts Interpretation Act, to give reasons for its conclusion as to "exceptional circumstances" was not fully argued and in those circumstances we prefer to express no opinion on that issue.
Conclusion and orders 50 The appeal is allowed. We will hear the parties on costs. At present and provisionally, we see those issues as being, on the appeal, whether the Minister should pay the additional costs occasioned by the separate representation of the appellant father and the appellant son and, in relation to the costs at first instance, whether the general principle that the ultimately unsuccessful respondent should pay the applicant's or applicants' costs should not apply in light of a shift in the basis of the ultimately successful attack on the Authority's decision. Submissions on costs should be in writing and should be limited to 3 pages on the part of each of the Minister, the appellant father and the appellant son. The Minister should have 7 days from the date of this order to file and serve his submissions and the appellant parties should each have a further 7 days to file and serve their submissions in response. I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Gilmour, Robertson and Kerr.
CHF16
Minister for Immigration and Border Protection
Appeal allowed; orders of the Federal Circuit Court set aside and in lieu thereof the decision of the Immigration Assessment Authority dated 25 July 2016 is set aside; parties to file written submissions on costs limited to 3 pages each.