Federal Court of Australia AUY17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 350 Appeal from: AUY17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCfamC2G 39 File number: VID 571 of 2021 Judgment of: MOSHINSKY J Date of judgment: 5 April 2022 Catchwords: MIGRATION – appeal – protection visa – unauthorised maritime arrival – referral to Immigration Assessment Authority – new information – whether the Authority failed to consider the criterion in s 473DD(b)(ii) of the Migration Act 1958 (Cth) – whether error material – held: appeal allowed Legislation: Migration Act 1958 (Cth), s 473DD Cases cited: AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 (2020) 171 ALD 477 Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 20 Date of hearing: 5 April 2022 Counsel for the Appellant: Dr A McBeth Solicitor for the Appellant: Wimal & Associates Counsel for the First Respondent: Mr JA Barrington Solicitor for the First Respondent: Sparke Helmore Solicitor for the Second Respondent: The second respondent filed a submitting notice, save as to costs ORDERS VID 571 of 2021 BETWEEN: AUY17 Appellant AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent IMMIGRATION ASSESSMENT AUTHORITY Second Respondent order made by: MOSHINSKY J DATE OF ORDER: 5 APRIL 2022 THE COURT ORDERS THAT: 1. The appeal be allowed. 2. Paragraphs 2 and 3 of the orders of the primary judge made on 13 September 2021 be set aside. 3. In lieu thereof, it be ordered that: (a) A writ of certiorari issue to quash the decision of the second respondent dated 15 February 2017. (b) The matter be remitted to the second respondent, to be determined in accordance with law. (c) The first respondent pay the applicant's costs of the proceeding, fixed in the amount of $7,853. 4. The first respondent pay the appellant's costs of the appeal, to be fixed as a lump sum. 5. Within 14 days, the parties file any agreed proposed minute of orders fixing a lump sum in relation to the appellant's costs of the appeal. 6. In the absence of any agreement: (a) within 21 days, the appellant file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court's Costs Practice Note (GPN COSTS); (b) within a further 14 days, the first respondent file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of the Costs Practice Note (GPN COSTS); and (c) in the absence of any agreement having been reached within a further 14 days, the matter of an appropriate lump sum figure for the appellant's costs of the appeal be referred to a Registrar for determination. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT MOSHINSKY J: 1 The appellant, a citizen of Sri Lanka of Tamil ethnicity, arrived in Australia by boat in September 2019. The appellant is an "unauthorised maritime arrival" for the purposes of the Migration Act 1958 (Cth). 2 In December 2015, the appellant applied for a protection visa. 3 On 6 September 2016, a delegate of the first respondent (the Minister) refused the application for a protection visa. 4 The matter was referred to the Immigration Assessment Authority (the IAA) for review, pursuant to Pt 7AA of the Migration Act. 5 On 4 October 2016, the appellant's legal representative provided a submission to the IAA (AB 159-163). A section of the submission was headed "New Information". This section of the submission set out a basis upon which it was contended that the appellant had an "additional fear" if returned to Sri Lanka. In support of that contention, the appellant provided a letter from the Tamil Refugee Council dated 4 October 2016 (AB 166-167) (the TRC Letter). Further, the appellant provided a copy of a letter from a Member of Parliament dated 1 October 2016 (AB 165) (the MP's Letter). The submission stated that the letter was being provided in response to an adverse credibility finding by the delegate. 6 On 15 February 2017, the IAA decided to affirm the decision not to grant the appellant a protection visa (AB 175-189). The IAA decided that the TRC Letter was "new information" for the purposes of Pt 7AA and that it should not be considered. Similarly, in relation to the MP's Letter, the IAA decided that it was "new information" and that it should not be considered. 7 The appellant applied to the then Federal Circuit Court of Australia for judicial review of the IAA's decision. On 13 September 2021, the Federal Circuit and Family Court of Australia (Div 2) decided that the application for judicial review should be dismissed. 8 The appellant appeals to this Court from the judgment of the Federal Circuit and Family Court. 9 The appellant's amended notice of appeal contains three grounds, but it is only necessary to consider ground 1. Ground 1 is that the primary judge erred in failing to find that the IAA had not considered whether items of new information contained credible personal information in the manner required by s 473DD(b)(ii) of the Migration Act. The particulars to that ground refer to the TRC Letter and the MP's Letter. 10 Section 473DD of the Migration Act provides as follows: 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. 11 This provision was considered by the High Court of Australia in AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494 (AUS17). Of particular relevance for present purposes, Kiefel CJ, Gageler, Keane and Gordon JJ held at [11]: Logic and policy therefore demand that the Authority assess such new information as it might obtain from the referred applicant first against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and only then against the criterion specified in s 473DD(a). If neither of the criteria specified in s 473DD(b)(i) and s 473DD(b)(ii) is met, the Authority is prohibited from taking the new information into account in making its decision on the review. Further assessment of the new information against the criterion specified in s 473DD(a) is redundant. If either the criterion specified in s 473DD(b)(i) or the criterion specified in s 473DD(b)(ii) is met, that is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a). If both the criterion specified in s 473DD(b)(i) and the criterion specified in s 473DD(b)(ii) are met, that too is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a) and which must heighten the prospect of that criterion being met. (Emphasis added.) 12 As this paragraph makes clear, it is necessary for the IAA to consider the criteria specified in both subparagraph (i) and subparagraph (ii) of s 473DD(b). Thus, even where the IAA considers that subparagraph (i) is satisfied, it is incumbent on the IAA to consider whether or not subparagraph (ii) is satisfied. 13 In the present case, the IAA considered the "new information" issue in relation to the TRC Letter at paragraphs 7 and 8 of its decision. In paragraph 7, the IAA stated that it considered the TRC Letter to be new information. In paragraph 8, the IAA accepted that this new information "could not have been provided to the department before the decision was taken to refuse the [appellant's] PV application". The IAA therefore, in substance, considered subparagraph (i) of s 473DD(b). However, in my view, the IAA did not consider subparagraph (ii) of s 473DD(b). The IAA did not refer to subparagraph (ii). Nor did it refer to the question posed by subparagraph (ii), namely, whether the new information was "credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims". 14 I note that the primary judge stated at [15] that the IAA had considered whether the information in the TRC Letter was credible personal information under subparagraph (ii) of s 473DD(b). The primary judge referred to the IAA's statement (in paragraph 8) that there was no evidence to suggest that the Sri Lankan authorities had had, or would have, access to the information confidentially supplied by the appellant to the UNHCR. The primary judge stated that, in so finding, the IAA "was not accepting that the [appellant's] claim of fear, based upon what was set out in the [TRC Letter], was credible". With respect, I do not agree that the IAA thereby considered whether the criterion in s 473DD(b)(ii) was satisfied. The IAA did not refer to the provision or to the test posed by the provision, namely whether the TRC Letter was "credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims". (Compare paragraphs 5 and 6 of the IAA's decision, where it engaged with this provision in relation to other new information.) I note that "credible" in this context means capable of being believed: see Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 (2020) 171 ALD 477 at [75]-[77] per Mortimer and Jackson JJ. The IAA did not engage in any such consideration of the new information in the TRC Letter. I therefore do not read paragraph 8 of the IAA's decision as a consideration of whether or not the criterion in s 473DD(b)(ii) was satisfied. 15 In circumstances where the TRC Letter referred to a "recent interview" by Sri Lanka's Minister of Justice, and the appellant's submission indicated that the interview had been given on 17 September 2016 (which was after the delegate's decision), and the statements in the interview were said to have created an additional fear for the appellant for the reasons indicated in the letter, it was open to the IAA to conclude that the new information was credible personal information which was not previously known and, had it been known, may have affected the consideration of the appellant's claims. 16 Accordingly, the IAA did not carry out the statutory task of considering whether subparagraph (ii) of s 473DD(b) was satisfied in relation to the TRC Letter. 17 In relation to the MP's Letter, the IAA considered this to be "new information": see paragraph 9 of the IAA's decision. It is conceded by the Minister that the IAA did not consider whether subparagraph (ii) of s 473DD(b) was satisfied in relation to the MP's Letter. Thus, in this respect, the IAA did not carry out its statutory task. 18 I am satisfied that the IAA's errors were material in the sense that there could realistically have been a different outcome. Had the IAA considered that the criterion in s 473DD(b)(ii) was satisfied, there is a realistic possibility that it would have decided that there were exceptional circumstances under s 473DD(a) and thus considered the TRC Letter and the MP's Letter. In that event, the body of material before the IAA would have been different, and more expansive, than the material it considered, and there is a realistic possibility of a different outcome. Insofar as the primary judge held at [25] that any error in relation to the MP's Letter was not material, on the basis that the IAA accepted certain of the appellant's claims which were "mirrored" in the MP's Letter, in my view the material in the letter went beyond these claims. 19 For these reasons, ground 1 is made out. It follows that the appeal is to be allowed and the decision of the primary judge set aside. In lieu of the orders of the primary judge, there should be orders that: (a) a writ of certiorari issue to quash the decision of the IAA; and (b) the matter be remitted to the IAA, to be determined in accordance with law. 20 I will hear the parties on costs. [Discussion with counsel then took place in relation to costs.] I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Moshinsky. Associate: Dated: 7 April 2022