CRM18 v Minister for Home Affairs

The proposed notice of appeal 9 The proposed amended notice of appeal seeks to raise a single ground, not raised in the Federal Circuit Court, as follows: 1A. The Second Respondent (Authority) engaged in jurisdictional error in its consideration of "new information" contrary to ss 473DD and 473DE of the Migration Act. Leave should be granted to raise this ground not raised in the Federal Circuit Court. Particulars a. A Delegate of the First Respondent (Minister) refused the Appellant's application for a Safe Haven Enterprise visa. b. The Delegate had regard, relevantly, to Departmental file BCC2016/2279231 relating to the Appellant in making this decision: Delegate's decision at p 9. c. The decision of the Authority: a. considers information which did not form part of Departmental file BCC2016/2279231 relating to the Appellant; and b. considers information which formed part of the Departmental file relating to the Appellant's brother (Brother Information): Decision at [15], [16], [17], [18], [191, [20], [21], [22], [32], [33], [37]. d. Despite a reference to the interview with the Appellant's brother in the Delegate's decision, the Brother Information was not listed in the "Material before the decision maker" by the Delegate: Delegate's decision at pp 3, 9. e. In the premises: a. The Brother Information was not 'before the Minister' in respect of the Delegate's determination under s 65 in respect of the Appellant, in whole or in part. The Brother Information was only 'before the Minister' in respect of the Delegate's determination in respect of the Appellant's brother, in whole or in part. b. In the alternative, the Brother Information except for the Delegate's interview with the Appellant's brother (Non-Interview Brother Information) was not 'before the Minister' in respect of the Delegate's determination under s 65 in respect of the Appellant. The Non-Interview Brother Information was only 'before the Minister in respect of the Delegate's determination in respect of the Appellant's brother. f. In the premises: a. The Brother Information was 'new information' for the purposes of s 473DC of the Migration Act in its entirety: or b. In the alternative, the Non-Interview Brother Information was 'new information' for the purposes of s 473DC of the Migration Act. g. The Authority considered the Brother Information (or, in the alternative, the Non­Interview Brother Information) without satisfying itself as to whether 'exceptional circumstances' existed in respect of that information for the purposes of s 473DD. h. The Authority considered the Brother Information (or, in the alternative, the Non­Interview Brother Information): a. without giving the Appellant particulars of the Brother Information (or, in the alternative, the Non-Interview Brother Information); b. explaining to the Appellant why the Brother Information (or, in the alternative, the Non-Interview Brother Information) was relevant to the review; and c. inviting the Appellant to give comments on the Brother Information (or, in the alternative, the Non-Interview Brother Information); for the purposes of s 473DE. i. The Brother Information (or, in the alternative, the Non-Interview Brother Information) was material to the Authority's exercise of its discretion to affirm the decision not to grant the Appellant's application for a Safe Haven Enterprise visa. j. The Authority's decision was hence affected by jurisdictional error. k. … 10 Despite the complexity of this wording, the only point which was sought to be raised, and for which leave was sought to raise it, was that four findings by the IAA, at [16], [17] and [21], necessarily required consideration of the evidence that H had given in respect of his own application, being evidence other than that provided in his interview with the delegate. It was put that this Court should draw that inference in respect of each of the four findings. It was common ground that H's interview with the delegate, referred to as his protection visa or SHEV interview, was before the delegate and was therefore not new information within s 473DC(1).

The statutory provisions 11 The relevant statutory provisions of the Migration Act were: 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. (2) The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances. (3) Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information: (a) in writing; or (b) at an interview, whether conducted in person, by telephone or in any other way. 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.

The evidence 12 The evidence in support of the application for an extension of time explained the delay in an affidavit by the applicant's solicitor dated 27 November 2018. That evidence is that the solicitor purported to file a notice of appeal against the primary judge's orders on 19 November 2018 (before the appeal period expired) but made a mistake in doing so, as a consequence of which the purported notice of appeal was not lodged until 23 November 2019. The applicant's solicitor deposed as follows: 3. On 19 November 2018, I filed a Form 121 - Notice of Appeal from the Federal Circuit Court of Australia through the Federal Court's eLodgment service (the 19 November Form). … 4. When I lodged the 19 November Form through the eLodgment service, I mistakenly identified the 19 November Form in the online filing form as a Form 122 - Notice of Appeal from the Federal Court of Australia, not as a Form 121. … 6. On or about 20 November 2018, the time for filing of a notice of appeal from Judge Street's orders expired. 7. On 22 November 2018, I received an email from eLodgment_admin@fedcourt.gov.au advising that the 19 November Form had been filed incorrectly as a Form 122, instead of a Form 121, and that lodgement had been rejected for that reason. … … 10. The failure to file a Notice of Appeal within time is explained by the above circumstances. Had the mistaken identification of the 19 November Form been brought to my attention within the time for filing of a notice of appeal, the 19 November Form would have been filed within that time period. 13 I accept this evidence. 14 The Minister did not take issue with the explanation for the delay, and acknowledged the delay was short, and that he would not suffer prejudice if an extension of time were granted. The Minister did not oppose an extension of time in order for the Court to consider the proposed ground of appeal advanced by the applicant. However, the Minister submitted, the ground did not identify a jurisdictional error in the decision of the IAA. 15 As to the application to advance on the appeal a ground asserting jurisdictional error by the IAA that was not advanced before the primary judge, the applicant submitted that the new ground was not advanced at first instance because the applicant did not have access to the documents on which that ground is based at that time. He referred to an affidavit of his solicitor affirmed 9 April 2019 showing, amongst other things, that he had previously attempted to seek the documents through a request in correspondence to the Minister's solicitors. He submitted that the proposed ground was narrow in compass, relied upon limited new evidence, and was capable of resolution within the time previously allotted for determination of the application for extension of time 16 The Minister submitted that because the proposed ground of appeal had insufficient prospects of success, leave should be refused. 17 As to substantive appeal, the Minister had served an affidavit dated 8 May 2019 affirmed by Mr Joshua Contin concerning a request by the IAA on 9 April 2019 to the Department of Home Affairs in relation to the applicant's brother H's protection visa interview recording. As the proposed ground of appeal was identified by counsel for the applicant in opening, that affidavit was no longer relevant and counsel for the Minister did not seek to read it. 18 Counsel for the applicant then sought to tender, in chief, the IAA's decision and reasons in relation to the applicant's brother H. I rejected that tender for reasons I then gave. Those reasons were, in summary: first that the document was produced too late, it having been provided to counsel for the Minister only moments before the commencement of the hearing and in circumstances where time did not permit proper consideration of that document by counsel for the Minister; and, second, the applicant's brother H's IAA decision and reasons were not sufficiently probative in light of the absence from the evidence or proposed evidence of both the file of the brother H and of H's protection visa interview.

The delegate's decision 19 The relevance of the delegate's decision to the ground of appeal is to determine what information was before the delegate. 20 It was clear that the delegate had before him for the purposes of deciding the applicant's claim for a visa under s 65 the interview that the same delegate had conducted with the applicant's brother H. This material, referred to as the applicant's brother's SHEV interview on 27 June 2017, was referred to by the delegate twice.

The IAA's decision and reasons 21 As I have said, the IAA affirmed the decision not to grant the applicant a protection visa. 22 At [14], the IAA referred to the new statement by the applicant's brother, H. This material was provided in support of the applicant's review by the IAA. 23 The IAA said that this raised, in part, new claims. The IAA said that it did not accept the explanation that this new information could not have been provided to the Minister because the applicant was not previously represented before the Minister. 24 At [15], the IAA referred to other new evidence by the applicant's brother, about Hezbollah seeking to recruit the brother, and considered this to be new information which it was not satisfied there were exceptional circumstances to justify considering. 25 At [16]-[22], the IAA referred to further new claims by the applicant's brother. Again, the IAA said it was not satisfied that there were exceptional circumstances to justify considering those new claims. 26 The four passages, in three paragraphs, in the IAA's reasons on which the applicant sought to rely were as follows: 16. … [H] did not previously claim that he was being investigated or imputed to be a spy for this reason and did not raise any claims during his protection visa interview in respect of his fiancé. No corroborating information has been provided to indicate that the hotel he worked in was in an area controlled by Hezbollah or otherwise infiltrated by Hezbollah, and the fact that he has not previously raised this claim casts real doubt on its genuineness. I am not satisfied there are exceptional circumstances to justify considering this new claim. 17. … However, [H] did not previously mention that [A] was injured in the manner he now states and I find it very difficult to believe that [H] does not know how [A] broke his leg during the incident, during which he claims he was present. I am not satisfied this new information is credible. I am not satisfied there are exceptional circumstances to justify considering this new claim. … 21. … [H] and the applicant previously claimed that the family comes from the town of [K] and have not previously referred to "[F]" and there is no information before me to indicate they are the same place and for this reason I consider this aspect of these claims to be new information. [H] also did not previously claim that his father had complained to the police who indicated that they should comply with these people or that he hid in several areas prior to departing Lebanon. …

The parties' submissions 27 The applicant submitted the delegate's decision listed "Material before the decision maker". This included, relevantly, "Departmental file BCC2016/2279231 relating to the applicant." That list did not include any departmental file or documents in respect of the applicant's brother H. The material in Departmental file BCC2016/2279231 was before this Court in the Appeal Book. The Department also released a document entitled "Departmental file BCC2016/2279231 (entry Interview)", which was relevantly identical to another document in the Appeal Book. 28 The applicant submitted the IAA decision relied upon material provided both in respect of the applicant and in respect of his brother H. 29 As I have said, the applicant submitted the findings at [16], [17] and [21] necessarily required consideration of the evidence that H had given in respect of his own application, being evidence other than that provided in his interview with the delegate. 30 The applicant submitted the IAA's decision did not advert to any consideration of whether material provided in support of H's application for a protection visa was for that reason "new information". 31 The applicant submitted that the term "new information" was used consistently across ss 473DC, 473DD and 473DE: Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 353 ALR 600 at [24]. He submitted that information provided to the IAA as "review material" may still constitute "new information": Plaintiff M174/2016 at [25]. 32 The applicant submitted s 473DD provided that, for the purposes of making a decision in relation to a fast track reviewable decision, the IAA must not consider any "new information" unless subclauses (a) and (b) were satisfied. This included, relevantly, satisfaction on the part of the IAA that there were exceptional circumstances to justify considering the new information. The IAA must still comply with s 473DD in respect of "new information" provided to it as "review material": Plaintiff M174/2016 at [27]. 33 In a practical sense, the applicant submitted, the information about the applicant's brother H may have been "before the delegate" in the sense that the same person made the same decision on both applications. But this did not mean that that information was before the delegate in respect of his statutory task to determine whether to grant or refuse a visa to the applicant under s 65 of the Migration Act. H's evidence was provided in respect of his own application. This evidence should not be considered to have been before the delegate in respect of the applicant's application merely because the same person made decisions on both the applicant's and H's applications. 34 The applicant submitted that to the extent that the IAA considered the information about the applicant's brother H which was not information from H's protection visa interview, it considered information which was not "before the Minister" in respect of the applicant. That information was hence "new information" for the purposes of s 473DC. The IAA was barred from considering this "new information", the applicant submitted, without first conducting an inquiry, and forming a state of satisfaction, pursuant to s 473DD. 35 The applicant submitted the impermissible consideration of "new information" was material to the IAA's exercise of power. The exercise of power in this case was hence conditional upon consideration of information that the IAA was prohibited from considering. If the IAA had not considered the information, the applicant submitted it could have changed the result of the IAA's exercise of power: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 359 ALR 1 at [29]-[31]. The Court should not assume that an inquiry into "exceptional circumstances" would have inevitably led to the conclusion that such circumstances existed; that inquiry was for the IAA, not the Court, to make. In the premises, the applicant submitted the IAA decision was affected by jurisdictional error. 36 The Minister submitted that it was necessary first to address the information relating to the applicant's brother H that the applicant submitted constituted new information. 37 What was apparent from these paragraphs, the Minister submitted, was that the IAA had before it two sources of information relating to claims advanced by the applicant's brother in connection with his protection visa application and which relevantly coincided with some of the applicant's own protection claims. In relation to paragraphs [15]-[22] the IAA considered in some detail the content of a statement it received from the applicant's brother H. 38 The Minister submitted that the IAA considered the content of H's statement and recognised, at [14], that whilst some of it constituted argument concerning the delegate's decision and thus was not new information for the purposes of Part 7AA of the Migration Act, the statement also raised new claims. The IAA considered those new claims and it addressed those claims as being new information. It considered by reference to the requirements of s 473DD whether it was permitted to have regard to those new claims. 39 At [32], [33] and [37] the IAA referred to information relating to H that was derived from his protection visa interview with the delegate. The delegate who interviewed H was the same delegate who interviewed the applicant and decided not to grant the applicant a visa. 40 The Minister submitted in relation to the IAA's reference to information from H provided in the statement given to the IAA, the IAA properly recognised that it contained, in part, new information for the purposes of Part 7AA, and it proceeded to consider whether it could have regard to that information taking into account the factors set out in s 473DD. 41 The Minister submitted that to the extent the applicant contended that the delegate in this matter having referred to H's protection visa interview was not a sufficient basis for it be concluded that the information from the interview was "before the Minister when the Minister made the decision under section 65" for the purposes of s 473DC(1), the submission should be rejected. In this case H's protection visa interview was before the delegate who made the decision in the applicant's case. That information was not, and was incapable of being characterised as, new information as defined in s 473DC(1) for the purposes of the applicant's fast track review. Here, the delegate expressly considered information from H's protection visa interview. H's protection visa interview was "before" the officer of the Department who exercised delegated power from the Minister under s 65 of the Migration Act. At the hearing, the applicant accepted that H's protection visa interview was "before" the delegate. 42 In relation to the applicant's contention that this Court should draw the factual inferences sought by him, as described at [10] above, the Minister's submitted that there was simply insufficient evidence for the Court to make those inferences. The Minister submitted that the IAA in its decision was careful in specifying the source of information on which it relied in considering H's statement. The Minister referred to the IAA's decision at [16] where, in the same sentence as it stated that H "did not previously claim that he was being investigated or imputed to be a spy", the IAA also referred to the fact H "did not raise any claims during his protection visa interview". The Minister submitted that it was sufficiently clear on the face of that paragraph that the IAA was directing its attention to what was raised by H in his protection visa interview. There was no dispute that H's protection visa interview was before the delegate, and it was not, of itself, new information. The Minister submitted the same conclusion should be drawn in respect of the other specific matters raised by the applicant, and referred to the IAA's reasons at [19] and [20]. 43 The Minister submitted that it should not be inferred, reading the decision fairly, that the IAA was referring to documents or information unspecified and, indeed, which were not before the IAA in respect of the applicant's review. Having regard to the decision itself, and appreciating that the IAA can be taken to understand the strictures of Part 7AA in considering information, the Minister submitted the Court should not, absent some specific reference to a certain other document, infer that the IAA was referring to other information in drawing its conclusions. 44 The Minister also submitted that ordinarily it is for the Federal Circuit Court to take evidence and then to determine matters on the basis of that evidence, not for this Court to do so. Had evidence been put on below, the Minister submitted that he might have sought to put on his own evidence to meet it. 45 The Minister submitted that if the Court granted the applicant an extension of time (and, presumably, leave to rely on the ground of appeal not raised before the primary judge), the appeal should be dismissed, with costs.

Consideration 46 I accept the explanation for the short delay and that in this case the solicitor's procedural error should not prevent the applicant being able to maintain his challenge the decision of the Federal Circuit Court. I take into account the explanation for the delay, that the delay was short, that the Minister would not suffer prejudice if an extension of time were granted and that the Minister did not oppose an extension of time in order for the Court to consider the proposed ground of appeal advanced by the applicant. I grant the extension of time. 47 For the reasons which follow, I do not grant leave to the applicant to rely on the proposed new ground. 48 In my opinion, the task on which the applicant asks the Court to embark is not one which is appropriate in the exercise of the Court's appellate jurisdiction. The issue sought to be raised is whether or not inferences should be drawn in relation to the sources for four findings by the IAA. 49 On the applicant's case as sought to be advanced, the IAA had three possible sources for what it said about the applicant's brother H not having previously raised various claims. One possible source was the applicant's documents or information that were before the delegate. A second possible source was the applicant's brother H's protection visa interview, which the applicant accepted was also "documents or information" that were before the delegate. The third possible source is the applicant's brother H's other documents or information, that is, documents or information lying outside the first two possible sources. 50 I do not accept the applicant's submission that the global or total language of the findings that various claims had not previously been raised by H necessarily meant (as a matter of logic) the decision maker had considered all of the above sources, including new information. Whether the decision maker in fact considered those sources in making the impugned findings depends, at least in part, on what those sources contain. If this ground as sought to be advanced had been raised before the primary judge in the ordinary course, both the second and third possible sources would or should have been before the primary judge. It would then have been possible to see with some accuracy what the source was likely to have been of the four impugned statements by the IAA in its decision and reasons in relation to the applicant. 51 The primary judge would have been able, at least, to see what was in and what was not in the applicant's brother H's protection visa interview. This Court is not in that position as that protection visa interview is not before the Court. 52 Similarly, the primary judge would have been able, at least, to see what was in the applicant's brother H's other material, that is, material other than his protection visa interview. Again, this Court is not in that position as that other material is not before the Court. 53 In my opinion, it is not appropriate for this Court on appeal to accede to the invitation to draw inferences as to the source of the four impugned statements where two of the three possible sources are not before the Court. While it would be possible to do so, it would not be possible to do so with the desirable degree of certainty, and it would be an inappropriate exercise involving unnecessary speculation, in the absence of those primary materials. 54 For these reasons, as I have indicated, I refuse the applicant's application for leave to advance the single ground of appeal on which he now seeks to rely, that ground being a ground not taken before the primary judge.

Conclusion and orders 55 For the reasons I have given, the extension of time should be granted, leave to rely on the new ground not raised before the primary judge should be refused and the appeal should be dismissed. The applicant should pay the costs of the first respondent. I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson.