Tag Archives: exceptional circumstances

‘Exceptional circumstances’ and s 473DD of the Migration Act

BVZ16 v Minister for Immigration and Border Protection (2017) 254 FCR 221; [2017] FCA 958

  • ‘exceptional circumstances’ means out of the ordinary, etc.
  • Not possible to be prescriptive about the content of the term
  • In determining ‘exceptional circumstances’, there is an overlap with the matters in s 473DD(b); both (i) and (ii) go towards the existence of ‘exceptional circumstances’: [8]
  • While s 473DD(b)(i) and (ii) are not ‘mandatory relevant considerations’ when assessing whether there are ‘exceptional circumstances’, the lack of reference to them and/or confining the consideration to other matters may demonstrate an incorrectly narrow understanding: [45]-[47]
  • It is wrong to reason:

[7] The new information relates to material which was squarely an issue at the SHEV Interview on 4 December 2015.  The substance of his protection claim rests on his claims that he has repeatedly been accused of, and interrogated about, LTTE membership and support and he has provided details of various other incidents in which he claims he was detained and interrogated about this.  He was specifically asked about incidents of detention and torture during the SHEV Interview and he responded with descriptions of those incidents.  Given these factors, and the fact that he was represented and had been residing in Australia for three years by the time he was questioned by the delegate, I do not accept his explanation that the was afraid he would be suspected of being returned on account of being perceived as an LTTE member.

[8] The applicant also claims he was previously too embarrassed to disclose the incident to either the delegate or his representative.  While I accept if these events occurred it would be natural for the applicant to experience feelings of embarrassment and shame and that that may impede his willingness to recall and discuss the details, I do not consider this as an explanation as to why he previously made no mention of being detained for two days in July 2012.  I consider he need not have provided intimate details about the torture to make the delegate aware that he had been detained and interrogated as recently as one month before he left Sri Lanka.  Given he disclosed various other similar incidents with basic detail I do not accept he would not have mentioned that the event occurred, even if he did not wish to discuss the finer details.

[9] I do not accept there are exceptional circumstances to justify considering the information.

Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176

  • BVZ16 is correct: [102]
  • In particular, the IAA demonstrates a wrongly narrow understanding of ‘exceptional circumstances’  if it only considers only whether an explanation for why the ‘new information’ was not provided earlier: [111]-[112]
  • Thus, (on nothing more than an application of BVZ16) it is incorrect to reason:

This information was not before the delegate at the time of the s 65 decision, and is ‘new information’.  The applicant was interviewed by a delegate of the Minister on 29 September 2015.  At the beginning of the protection visa interview the applicant confirmed there was nothing in his application form which was false or misleading.  He also stated, ‘I do not have anything more or less to add.’  He also made an affirmation confirming all his claims for protection were true.  At the end of the protection visa interview the applicant was asked if he had put forward all his claims for protection to which he responded, ‘yes’.  He was also asked if there was anything else he wanted to tell the delegate, to which he responded, ‘no’.  During the protection visa interview, the applicant was also put on notice in regard to raising all claims for protection to the delegate.  He was given information in the protection visa interview in respect to the limitations of providing new information if his protection visa application was refused and referred to the IAA for review.  On the evidence before me the applicant has not mentioned his membership of association to AFLA or any other political organisation.  The applicant has never claimed to have participated in any political protects either in Iran or Australia.  The applicant’s claims of joining AFLA, playing for a [football] team in Sydney, his parents being questioned as a result of his involvement with the [football] team and participating in political rallies are all stated to have occurred prior the delegate’s decisions being made on 17 February 2016.  The applicant has not provided any explanation as to why the information could not have been provided earlier.  I am not satisfied there are exceptional circumstances to justify considering the new information provided by the applicant.

CHF16 v Minister for Immigration and Border Protection [2017] FCAFC 192

  • The IAA errs in construing ‘exceptional circumstances’ if it does 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”: [44]
  • Thus, it is incorrect to reason:

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.

  • It may that a proper construction of s 473DD means it is possible for there to be ‘exceptional circumstances’ even if neither of s 473DD(b)(i) or (ii) are made out: [46]

EMJ17 v Minister For Immigration and Border Protection [2018] FCA 1462

  • Whether “exceptional circumstances” exist for the purposes of s 473DD may depend in part on the nature and content of the new information which has been obtained: [62]

DFP16 v Minister for Immigration and Border Protection [2018] FCA 1901

  • The fact that ‘new information’ consists of a new claim is significant to examination of whether there are exceptional circumstances (and the failure to appreciate this shows an unduly narrow understanding of the term ‘exceptional circumstances’)

AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111

  • This decision is difficult to reconcile with the other authorities. At [17] the Court effectively concludes that the IAA only needs to take into account what is expressly put before it by the applicant in determining whether there are ‘exceptional circumstances’. Also implicit in the Court’s reasoning is that it will never be enough to argue that the rejected new information may have potentially have caused a different assessment of the other matters before the delegate–but this is surely inconsistent with BVZ16, BBS16 and s 473DD(b)(ii).

‘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].