DKF17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

BACKGROUND 3 The background to this appeal may be found in the thorough and careful account provided by the primary judge: DKF17 at [3] to [12]. Because of the confined nature of the appeal, it is not necessary for the background to be extensively repeated. 4 It is sufficient to record that, on review of the delegate's decision by the Authority, the appellant had provided a submission and further material which the Authority accepted included "new information" within the meaning of s 473DC(1) of the Migration Act 1958 (Cth). However, the Authority was not satisfied that there were any exceptional circumstances to justify considering the new information. The Authority stated at A[3] to A[5]: 3. On 27 January 2017 the applicant's representative provided a submission and accompanying material to the IAA. The IAA contacted the representative to advise that the submission appeared to relate to a different applicant. A further email was received on 30 January 2017 attaching a submission in respect of this applicant, in addition to the other material. I note that both the initial submission and the correct submission are more in the nature of statements, written in the first person and signed by the respective applicants. There are considerable similarities in the wording of some parts of these documents. 4. The (correct) submission refers to country information and makes claims in response to the delegate's reasoning. Accompanying it are documents dating from 2007 and 2010 which purport to evidence the applicant's role as Secretary of his local branch of the Bangladesh Student (Chatra) League. Also submitted were media articles, pre-dating the delegate's decision, regarding a family who has members of both the Awami League and another party, and an article about intra party violence within the Chatra League. Apart from some elements of the submissions which repeat the applicant's claims and explanations to the delegate and make what could be characterised as argument relating to the weight given by the delegate to certain information, I find that the submissions and the accompanying material are new information. 5. The submission and material purport to address adverse credibility findings made by the delegate regarding the applicant's involvement with the Chatra League and particularly his claim to have held the role of secretary. It is evident from the recording of the TPV interview on 23 November 2016 that the applicant was clearly on notice that these claims were in doubt. Further, the applicant was told at that interview that if he did not give the Department of Immigration and Border Protection (the Department) all relevant information and his application was refused, he may not have another change [sic] to provide the information. He was advised on completion of the interview that he could send anything further to the delegate until the time a decision was made. Although the applicant did not have a migration agent present at the interview, he was represented in the TPV application by the same migration agent who now represents him before the IAA. I am not satisfied that there are any exceptional circumstances to justify considering the new information. 5 The appellant's application for judicial review before the Federal Circuit Court included a ground of review to the effect that the Authority failed to take into account the matters referred to in s 473DD(b)(ii) when reaching the state of satisfaction required by s 473DD(a). 6 The Federal Circuit Court dismissed the application. The paragraph of its reasons upon which the appellant ultimately focussed particular attention in its ground of appeal as amended was J[71]. However it is convenient to set out a little more (footnotes omitted): [67] The relevant passages of the Authority's reasons are as follows: a) at [4], the Authority noted that the New Documents comprised "documents dating from 2007 and 2010 which purport to evidence the applicant's role as Secretary of his local branch of the Bangladesh Student (Chatra) League… media articles, pre-dating the delegate's decision, regarding a family who has family members of both the Awami League and another party, and an article about intra party violence within the Chatra League"; b) at [5], the Authority noted that "the submission and material purport to address adverse credibility findings made by the delegate regarding the applicant's involvement with the Chatra League and particularly his claim to have held the role of secretary"; c) at [5], the Authority also observes that "[i]t is evident from the recording of the TPV interview on 23 November 2016 that the applicant was clearly on notice that these claims were in doubt"; d) at [5], the Authority notes that "the applicant was told at [the TPV] interview that if he did not give the Department of Immigration and Border Protection … all relevant information and his application was refused, he may not have another change [sic] to provide the information"; and e) the Authority also observes at [5] that the applicant "was represented in the TPV application by the same migration agent who now represents him before the [Authority]". … [69] The passage of the Authority's reasons extracted at [67(a)] above is clearly referable to the matters in s.473DD(b)(i). The Authority makes no explicit finding in relation to s.473DD(b)(i) but it plainly had those matters in its mind when it made its assessment of exceptional circumstances. [70] The Authority also considered the nature of the new information, that being information seeking to address the adverse credibility findings made by the delegate. So much is clear from the extracts of the Authority's reasons that appear above at [67(a)] and [67(b)]. The applicant's submission that "the Authority did not evaluate the significance of the relevant part of the new information" is in this respect incorrect. The Authority's consideration of the factual context in which the new information arose is a matter that is properly taken into account in considering exceptional circumstances, either as a matter going to the matters in s.473DD(b)(ii) or otherwise as one of the "relevant circumstances" the Authority was bound to consider. [71] The Authority's use of the word "purports" in the passages at [67(a)] and [67(b)] above is significant. The word "purport" is defined by the Macquarie Dictionary to mean "to profess or claim". The Oxford Dictionary defines "purport" as to "appear to be or do something, especially falsely". I accept the Minister's submission that the word is used in the Authority's reasons to denote its doubts about the credibility of the New Documents. In this manner, on a fair reading the Authority considered, but did not make explicit findings in relation to, the matters in s 473DD(b)(ii) when it came to its conclusion in relation to exceptional circumstances. 7 In light of the matters the primary judge had referred to, the primary judge did not infer that the Authority adopted too narrow a construction of s 473DD(a): J[73]. To the contrary, his Honour concluded that, on a fair reading of its reasons, the Authority took into account all the relevant circumstances in arriving at the conclusion that there existed no exceptional circumstances to justify considering the new information and that the matter was not one where the Authority was "satisfied by reference to one matter only, that an applicant's circumstances are not exceptional", citing BVZ16 at [9], and the Full Court of this Court in CQW17 at [48] (the full case references are set out below).