See DVO16 v Minister for Immigration and Border Protection [2021] HCA 12; 95 ALJR 375 at [12].
Tag: exceptional circumstances
It is entirely permissible to read reasons in respect of s 473DD and infer from what is not said that things were not considered
The Minister’s recycled argument that there is ‘no duty to give reasons’ in respect of s 473DD, and that it is not permissible to infer from what is not referred in reasons that the thing not referred to was not considered, was rejected in AUS17.
Although not subject of express analysis, this can be the only consequence of the reasoning of the plurality.
After confirming that s 473DD(b)(i) and (ii) are mandatory relevant considerations for s 473DD(a), the plurality said at [17]-[18]:
17. The Authority affirmed the decision of the delegate, finding amongst other things that the appellant had fabricated his claim to fear mistreatment at the hands of the EPDP and had embellished his claim to fear mistreatment at the hands of the Sri Lankan Army. The Authority recorded in the statement of reasons for its decision on the review that the letter was "new information" which it had not considered in making its decision on the review. That was for reasons which the Reviewer who constituted the Authority for the purpose of the review explained in the following terms:
"I accept the letter of support from Appathuray Vinayagamoorthy could not have been provided to the delegate as it was written after the delegate's decision. However, the information it provides recounts the claims already provided by the applicant and in that regard there is no reason to believe that the applicant could not have obtained a letter outlining this information earlier and provided it to the Minister. I am not satisfied that any exceptional circumstances exist that justify considering the new information."
18. Plainly enough, the Authority assessed the letter against the criterion specified in s 473DD(b)(i), finding that criterion not to be met. It went on to assess the letter against the criterion specified in s 473DD(a), finding that criterion not to be met. There being nothing to suggest that the letter was incapable of being assessed by the Authority to meet the criterion specified in s 473DD(b)(ii), what the Authority should have done, but evidently did not do, was assess the letter against the criterion specified in s 473DD(b)(ii) and then take that assessment into account in going on to assess the letter against the criterion specified in s 473DD(a).
In the Minister’s written submissions in AUS17, the recycled argument relating to the absence of a duty to give reasons in respect of a s 473DD decision appears at [46] and [51].
At the hearing, the following exchange also occurred:
EDELMAN J: Do you accept that, conversely, if there were circumstances that were so glaring or important that a failure to mention those circumstances might justify an inference that those circumstances had not been considered?
MR KENNETT: That may occur . …
See also the written reply submissions at [9] which contend that s 473DD findings are always material to the eventual decision and so therefore there is actualy a ‘duty’ to give reasons in respect of s 473DD, and the plurality at [6].
The IAA’s ‘visual impression’ that it forms based on observations in an interview is ‘new information’, and so should impressions based on reviews of audio or video recordings
If the IAA interviews an applicant, it might them form an impression of the demeanour of the applicant. This impression is ‘new information’ and attracts the obligation to invite comment, under s 473DE. In ABT17 v Minister for Immigration and Border Protection [2020] HCA 34 at [16] the plurality said:
... The Authority's own visual impression of the referred applicant's appearance during such an interview would necessarily constitute new information within the power of the Authority to get because it would communicate knowledge of an evidentiary nature which would be open to be considered by the Authority to have the potential to bear on the Authority's assessment of the referred applicant's credibility[27] and which was not before the Minister when the delegate made the referred decision[28].
See also [17]:
Were some aspect of the referred applicant's appearance during the interview to end up being so glaringly undermining of the referred applicant's credibility as to lead the Authority to consider in advance of reasoning on the facts that the appearance of itself "would", as distinct from "might", be the reason or part of the reason for affirming the decision of the delegate[31], the Authority would come under an obligation to explain that to the referred applicant and to invite the referred applicant to comment[32]. ...
By parity of reasoning, the IAA’s impression it forms based on observations it makes from listening to or watching a recording should also be ‘new information’, because these impressions are also ‘knowledge of an evidentiary nature’.
Hence, it is unreasonable if the IAA ([25]):
... without good reason, ... does not invite a referred applicant to an interview in order to gauge his or her demeanour for itself before it decides to reject an account given by the referred applicant in an audio recorded interview which the delegate accepted in making the referred decision wholly or substantially on the basis of its own assessment of the manner in which that account was given.
New information obtained under s 473DC must necessarily mean there are exceptional circumstances
One would have thought this was obvious, despite attempts to constrain the meaning and operation of s 473DD and excessively defer to the IAA. The High Court has now confirmed that proposition. In ABT17 v Minister for Immigration and Border Protection [2020] HCA 34 at [16] the plurality said:
.. The new information so got by the Authority would then meet the preconditions to its consideration by the Authority on the basis that it was not and could not have been before the Minister when the delegate made the referred decision[29] and on the basis of the Authority's satisfaction that the existence of any informational gap is sufficiently aberrant within the scheme of de novo review for which Pt 7AA provides to make existence of the informational gap in the particular review alone enough to constitute "exceptional circumstances" justifying its consideration irrespective of how frequently such an informational gap might arise in practice[30].
‘Exceptional circumstances’ is not limited to whether the applicant could have provided the information earlier
BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958 concerned the IAA’s exclusion of information on the sole basis that the applicant could have but did not provide it to the delegate. White J said at [46]-[47] this was an unduly narrow interpretation of ‘exceptional circumstances’.
His Honour stated:
[41] Generally, consideration of whether exceptional circumstances exist will require consideration of all the relevant circumstances. That is because even though no one factor may be exceptional, in combination the circumstances may be such as reasonably to be regarded as exceptional…
…
[43] … exceptional circumstances will be those which are out of the ordinary course and which will justify the new information being considered even though it had not been provided to the Minister at the time of the s 65 decision. A variety of matters may be capable of bearing upon those circumstances. (emphasis added)
His Honour also observed at [34]-[35] that the requirements in s 473DD(a) and (b) overlap, so that even though they are cumulative, the fact that information could have been provided to the delegate earlier but was not cannot be decisive. Thus, information that could have been provided earlier but was not (s 473DD(b)(i)) might nonetheless be personal information that had it been known, would have affected the decision (s 473DD(b)(ii)), and in light of that significance (or otherwise), there was an ‘exceptional’ circumstance (s 473DD(a)).
His Honour’s reasoning was endorsed in Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 at [102]-[112].
The Full Court left open the possibility that the IAA failing to consider a particular piece of information in deciding whether there were ‘exceptional circumstances’ may constitute jurisdictional error: [114].