Federal Court: The Immigration Assessment Authority (IAA) cannot consider new information unless it is credible "personal information", which means information about an identified, or reasonably identifiable, individual. Could the IAA have determined the identity of an individual the subject of a previous IAA decision by accessing the IAA's records, with the result that such a person was "reasonably identifiable"? Alternatively, does "personal information" imply knowledge of a person's name?
The Appellant applied for a Safe Haven Enterprise visa and claimed to be entitled to protection by reason of being a Faili Kurd, among other things.
The Minister refused to grant the Appellant the visa and that refusal was automatically referred to the Immigration Assessment Authority (IAA) under Pt 7A of the Migration Act 1958 (Cth) for review.
The Appellant's representative provided a submission to the IAA. Among other things, that submission "quoted lengthy extracts from a previous decision made by the Authority concerning an unidentified Faili Kurd". There was nothing to suggest any personal link between the Appellant and that other Faili Kurd, except that both claimed to be Faili Kurd.
The IAA could only accept new information in limited circumstances, by reason of the following provision in the Migration Act:
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.
[Underlining added in the original]
Section 5 of the Migration Act provided:
Personal information has the same meaning as in the Privacy Act 1988.
Section 6 of the Privacy Act 1988 (Cth) read as follows:
Personal information means information or an opinion about an identified individual, or an individual who is reasonably identifiable:
(a) whether the information or opinion is true or not;
(b) whether the information or opinion is recorded in a material form or not.
The IAA refused to have regard to the extracts from the previous decision by saying as follows:
5. Additionally, the submission makes reference to a previous IAA decision which has been published on the IAA website. The decision is dated prior to the delegate’s decision. No reasons have been provided as to why this new information either could not have been provided before the date of the delegate’s decision or why it should be considered credible personal information when the decision is de-identified. There is no information before me to indicate the applicant in the previous IAA decision is in any way related to the applicant in this matter. The applicant has not satisfied me that s.473DD(b) is met with regard to the new information provided. Further, the applicant and his representative had already been provided with ample opportunity to provide information on all the matters in question, and had been made aware by the delegate that he would have regard to any information which was provided to him before a decision was made.
The IAA affirmed the Minister's decision and the Appellant then applied to the Federal Circuit Court (FCCA) for judicial review of the IAA's decision.
The FCCA dismissed that application and the Appellant eventually appealed the FCCA's decision to the Federal Court (FCA).
The questions to the FCA were as follows:
Question 1: Can it be said that, "taking into account the statutory framework of Pt 7A of the Migration Act and the purpose of s 473DD, the individual who was the subject of the previous decision of the Authority was, 'reasonably identifiable'... because it would be easy for the Authority to determine the identity of the individual by accessing the Authority’s records, and because a member of the public could make an application under the Freedom of Information Act 1982 (Cth) for information concerning the identity of the individual"?
Question 2: Can it be said that where the IAA "publishes a decision and deletes the applicant’s name pursuant to its statutory obligation under s 473EC of the Migration Act, the applicant remains, 'an identified individual'"? In other words, is it "enough that the Authority knows that the information is about a particular person, even though it does not know the name of the person"?
Question 3: "... to come within s 473DD(b)(ii) of the Migration Act, the personal information must be demonstrated by the applicant to be, amongst other things, 'credible'. [Is there] a tension between the requirement that the information be 'credible' and the definition of 'personal information' which applies, 'whether the information is true or not'"?
The FCA answered those questions as follows:
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