FEDERAL COURT OF AUSTRALIA

CMY17 v Minister for Immigration and Border Protection [2018] FCA 1333

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THAWLEY J:

1    On 14 February 2018, the Federal Circuit Court of Australia dismissed the appellant’s application under s 476 of the Migration Act 1958 (Cth) for judicial review of a decision of the Immigration Assessment Authority made on 16 May 2017. The Authority affirmed a decision of the delegate of the Minister for Immigration and Border Protection not to grant the appellant a Safe Haven Enterprise Visa.

BACKGROUND

2    The appellant is a Sri Lankan citizen. He is of Tamil ethnicity, born in the Northern Province. He lived in Sri Lanka from when he was born in 1967 until 1990 when he left to India following intense fighting between the Sri Lankan Army (SLA) (which controlled his village) and the Liberation Tigers of Tamil Eelam (LTTE). The appellant registered with the Indian authorities and was given a refugee card. He married his wife, whom he met in a refugee camp, and they had three children together in India. They returned to Sri Lanka in August 2001 during a moment of peace following a ceasefire.

3    The appellant’s claims may be summarised as follows:

(1)    The appellant returned to live in his wife’s village which was controlled by the SLA. That village was also in the Northern Province of Sri Lanka. Conflict between the SLA and LTTE recommenced after he had returned.

(2)    In 2006 and 2007 people in the region disappeared, were killed or detained.

(3)    In March 2006, the appellant’s brother-in-law (Mr X) was shot and killed at home in a neighbouring village. The appellant had worked for Mr X in his transport business. The police commenced an investigation into the death of Mr X. The appellant claimed he was called by the police for questioning and that he was detained by the police once or twice a month, sometimes for as much as one or two days. Mr X’s widow reported the repeated questioning to the Human Rights Commission, the International Committee of the Red Cross and the Sri Lankan Monitoring Mission. During the questioning the appellant was asked about the complaints to these organisations and about details of Mr X’s business.

(4)    In 2008, when there had been an attack on an SLA camp near his village, the appellant was taken with five or six other people from the village to the SLA camp where he was kept for one week. He was interrogated about whether he was involved with the LTTE and the SLA threatened to hurt his family. After his release, he was again repeatedly questioned.

(5)    He was again detained by the SLA for 3 days in June 2012 on suspicion of supporting the LTTE. He was interrogated by the police on 5 July 2012. The appellant believed he was detained because of his Tamil ethnicity and because of the complaints made by his sister-in-law (Mr X’s widow) in relation to the police questioning.

(6)    In July 2012, two men were taken by the police for questioning and one never returned. He stated that these two men were among the five or six who had been taken in 2008 on suspicion of links with the LTTE.

4    The appellant departed Sri Lanka illegally on 10 August 2012, arriving in Australia by boat on 27 August 2012.

5    In 2015, the appellant’s sister-in-law (Mr X’s widow, who used to live with the appellant’s wife) left Sri Lanka for India.

6    The appellant applied for a SHEV on 13 April 2016. He was interviewed on 9 August 2016.

THE DELEGATE

7    On 12 October 2016, the delegate refused the application for a SHEV.

8    The delegate did not accept that the SLA used to go into homes in the appellant’s village in 2002 or 2003 as the ceasefire between the Sri Lankan government and the LTTE, which was brokered by Norway in 2002, only “started to unravel” in 2005. The delegate’s reasons included:

Country information states that it was following the suicide attack on Sri Lanka’s Army Commander Lieutenant-General Sarath Fonseka on 25 April 2006, that the authorities returned to pre-ceasefire security arrangements with the re-instating of checkpoints in the north and east of the country. The applicant confirmed this at the PV interview when he was asked for his observations of the ceasefire – he stated that he observed “in the news” that the SLA and LTTE held talks in Colombo and were talking “in a friendly way”. His knowledge of the period of the ceasefire was further checked, and he conceded that he was not confident that it ended in 2002/2003. For this reason I do not accept that the SLA went into people’s homes in 2002/2003.

9    In relation to the claim with respect to him being taken to an SLA camp and detained for a week in 2008, the delegate stated:

At the PV interview, the applicant was asked for the duration of his detention on this occasion. He stated that he was detained for two days. It was put to the applicant that in his written claims he stated that he was detained for a week, the applicant explained that the enquiries lasted a week but he was detained for two days, after which he was moved to a smaller camp closer to his home where he had to go on a daily basis for the next five days. The applicant also states in his written claims that on this occasion the SLA officers who detained him threatened to hurt his family. He was asked at the PV interview about any threats made, and he stated that the only threat made by the people who held him was that they would shoot and kill him. It was put to the applicant that in his written claims he stated that the people who held him threatened to hurt his family. The applicant stated that he had not mentioned that threat at the PV interview because that threat “is a common thing there”, and that he thought he was being asked at the PV interview about threats made only to him personally. According to the applicant, after his release by the SLA, he was repeatedly detained and questioned by the SLA until June 2012, always on suspicion of LTTE links and in connection to the 2008 attack on the SLA camp. It was put to the applicant that the civil conflict had ended in 2009, and that there were likely to have been other incidents since the claimed 2008 attack on that particular SLA camp, he stated that nothing else had happened in his area since the 2008 attack. I find it implausible that three years after the end of the conflict, and four years after an attack on a camp, the SLA was still detaining the applicant to question him about that attack when more serious incidents had occurred since 2008, such as the heavy fighting that brought the conflict to an end in April/May 2009. By the applicant’s own account, when the SLA was looking for people with links to the LTTE, its practice (observed from the period prior to the applicant’s departure to India) was to go family by family, call entire families out to their front yards and question a family together. While I accept that the applicant’s area was controlled by the SLA as were parts of the north at various times (as noted above), I find that the applicant’s account of the claimed attack on the SLA camp is lacking in detail. I therefore do not accept it. As I do not accept the claim of a 2008 attack on the SLA camp, I do not accept the applicant’s claims of being taken, detained and questioned by the SLA in connection to the attack. Also as the applicant has stated that he was never personally targeted by the SLA during its checks for people with LTTE links, I do not accept that he was singled out and taken or detained by time. I do not accept that personally, he was or is of any interest to the SLA.

10    As to the incident in July 2012, the delegate stated:

The applicant further stated at the PV interview that, in July 2012 two people from his village were taken by the SLA on suspicion of links with the LTTE. The applicant stated that these two were among the five or six who were taken with him in 2008 by the SLA in connection with the LTTE. He claimed that when the two were taken by the SLA, only one person returned. It was put to the applicant that he had stated in his written claims that the two people who were taken in July 2012 and never seen again were former employees of [Mr X] who were taken by the Police in relation to his death. The applicant then stated that the two people were taken by the Police. He further stated that the SLA took people in connection with the LTTE, while the Police took people in connection with [Mr X]. I find that the inconsistencies in the applicant’s accounts raise serious credibility concerns.

11    The delegate also set out what she perceived to be inconsistencies in the appellant’s account of his interactions with police following the death of Mr X in 2006. This led the delegate not to accept that the appellant was of special interest to the police in that matter, beyond employment and family links. The delegate stated:

Regarding his interactions with the Police, he stated at the PV interview that in the matter of [Mr X’s] 2006 death, the Police came to his home to question him in the period before 2007/2008, however after 2007/2008, the Police took him and his sister-in-law to the Police station to question them. The applicant has also stated that his sister-in-law lodged complaints in November 2006 in relation to the repeated questioning, and that the organisations that received the complaints advised that as there was a Police investigation into the matter there was nothing they could do. It is noteworthy that the applicant stated at different times during the PV interview that on the one hand his sister-in-law was only questioned at home while he was taken to the Police station, and on the other hand that they were both taken to the Police station after 2007/2008.

12    The delegate noted the applicant’s claim that he had managed Mr X’s business and sometimes worked as a bus conductor. The delegate concluded that he had elevated his role in the business by claiming to have managed it on the basis that the only supporting evidence he provided in relation to his role in the business was a Conductor ID card.

13    The delegate considered it implausible that the police attention had shifted to the appellant from Mr X’s widow following her departure from Sri Lanka. The delegate noted that Mr X died about 10 years earlier. The delegate noted that the appellant’s wife and children, including adult children in employment, had lived in Sri Lanka without any claims of persecution from government or non-government sources.

14    The delegate stated:

The applicant also claims that people who were looking for [Mr X’s] widow are now looking for him, and also that “big businessmen” have gone to his wife asking for money, possibly from transactions [Mr X] may have entered into. The applicant claims that the “big businessmen” have told his wife that they will not hesitate to kill him. I find that if the applicant had played a significant role in the business, he would not have had to speculate about [Mr X’s] transactions, which would have occurred while the applicant was still in Sri Lanka. Furthermore, as the business operated for a period of time in the applicant’s absence, I find that he currently has no relevant links to the business. On the basis of information before me, I do not accept that the applicant is of interest to any businessmen in Sri Lanka.

15    The delegate also referred to a claim made by the appellant at his PV interview that he had been diagnosed with a terminal illness. The appellant had not provided satisfactory evidence of a medical condition. The delegate noted that appellant had not made a protection claim on the basis of his medical condition beyond stating that his wife had advised him to remain in Australia.

16    The delegate did not consider that the appellant faced a real chance of persecution for any of the reasons claimed if he were to return to Sri Lanka in the foreseeable future. Accordingly, the delegate was not satisfied that the appellant was a refugee as defined by s 5H(1) of the Act and, therefore, was not satisfied that Australia had protection obligations under s 36(2)(a).

17    The delegate:

(1)    considered that the appellant, if returned to Sri Lanka, would be doing so as a member of the particular social group “failed Tamil asylum seekers who departed Sri Lanka illegally”;

(2)    was not satisfied that, as a member of the particular social group, being questioned by the authorities on his return to Sri Lanka, being charged with an offence under the Immigrants and Emigrants Act 1948 (Sri Lanka) and being held for a short period of time until released on bail, or being made to pay a fine for departing illegally, rose to the level of “significant harm” for the purposes of a claim for complementary protection under s 36(2)(aa) of the Act;

(3)    found there was no real risk that the appellant would face significant harm for any of the reasons claimed if he were to return to Sri Lanka.

18    Accordingly, the delegate did not consider the appellant was a person in respect of whom Australia had protection obligations under s 36(2)(aa) of the Act.

19    Before turning to the decision of the Authority it is useful to set out parts of the legislative scheme pursuant to which the Authority was to conduct its review.

LEGISLATIVE BACKGROUND

20    The Minister must refer a fast track reviewable decision to the Authority as soon as reasonably practicable after the decision is made: s 473CA.

21    The Secretary of the Department of Home Affairs must give the Authority the “review material”, which includes:

(1)    a statement (that sets out the findings of fact made by the person who made the decision, refers to the evidence on which those findings were based, and gives reasons for the decision);

(2)    material provided by the referred applicant to the person making the decision before the decision was made; and

(3)    any other material that is in the Secretary’s possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review: s 473CB.

22    The Authority “must review a fast track reviewable decision referred to the Authority under section 473CA”: s 473CC(1). The task of the Authority under s 473CC is to consider the application for a protection visa afresh and to determine for itself whether or not it is satisfied that the criteria for the grant of the visa had been met: Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 92 ALJR 481 at [17]. The Authority can affirm the decision or remit it for reconsideration: s 473CC(2).

23    Subject to Part 7AA, the Authority is to review a fast track reviewable decision referred to it under s 473CA by considering the “review material” provided to the Authority under s 473CB without accepting or requesting “new information” and without interviewing the referred applicant: s 473DB.

24    One exception to the prohibition under s 473DB on the Authority considering “new information” is furnished by s 473DC and s 473DD. Amongst other things, the latter section deals with when the Authority may consider “new information” put forward by a “referred applicant”. It provides:

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)    it 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.

25    Section 473DD was recently considered in two Full Court decisions: Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110 and AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111.

26    The following principles emerge:

(1)    The requirements of s 473DD(a) and (b) are cumulative. The Authority is prohibited from considering new information unless it is satisfied of the matters in both paragraph (a) and subparagraph (b)(i) or (ii) or both: CQW17 at [36]; AQU17 at [13].

(2)    The words “exceptional circumstances” are not defined and are to be given their ordinary meaning; circumstances are “exceptional” if the circumstances may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon: AQU17 at [13].

(3)    What will amount to “exceptional circumstances” is inherently incapable of exhaustive statement and must depend on the particular circumstances of the visa applicant’s case: Plaintiff M174 at [30]; AQU17 at [14]. There may be a combination of factors which, when viewed together, constitute “exceptional circumstances”, or one factor itself may be sufficient for “exceptional circumstances” to exist: AQU17 at [13].

(4)    The Authority’s satisfaction that there are exceptional circumstances (subparagraph (a)) to justify considering the new information extend beyond, but might be contributed to by, the Authority’s satisfaction that the new information:

(a)    could not have been provided to the Minister at the time of the s 65 decision (subparagraph (b)(i)); or

(b)    is credible personal information which had not previously been known (subparagraph (b)(ii)): CQW17 at [48]-[49].

(5)    Whilst it always depends on the particular facts, a failure by the Authority to turn its mind to the matters in subparagraphs (b)(i) and (b)(ii) in determining whether it is satisfied that there are “exceptional circumstances” for the purposes of paragraph (a) may constitute jurisdictional error: CQW17 at [51]-[53]. However, it is a misconception that the matters in (b)(i) and (ii) must, in all cases, be considered by the Authority in deciding whether “exceptional circumstances” exist under (a): AQU17 at [14]. Nor is there a requirement to make an express finding under (b)(i) or (ii) for the purpose of considering whether “exceptional circumstances” exist under (a): AQU17 at [16].

(6)    It is possible that the Authority’s consideration of the existence of exceptional circumstances under paragraph (a) is relevant to its satisfaction as to the matters in paragraph (b), however it would be necessary to identify:

(a)    the circumstances contended to be exceptional; and

(b)    how consideration of such asserted exceptional circumstances might have informed the Authority’s consideration of the matters in (b): CQW17 at [71]-[72].

THE AUTHORITY

27    The delegate’s decision was referred to the Authority on 26 October 2016.

28    On 15 November 2016, a solicitor and migration agent wrote to the Authority indicating she had been instructed by the appellant to provide a statement to the Authority. The statement was dated 15 November 2016 and included the following:

3.    I am told that the case officer did not accept that the Army used to go into homes in my village in 2002/2003 because this was the time of the ceasefire. As I said at my interview, I was not confident about the dates when the ceasefire ended, but I do remember that in the period after the ceasefire ended and the conflict resumed, the Army checked people’s homes in my village.

4.    I am told that the case officer did not accept that the LTTE attacked an SLA camp near my house in 2008 or that I was questioned after this incident, because my account lacked detail. During my interview with the case officer, I was not asked to provide more detail about the attack on the camp. I am happy to provide further details about my memory of these events if the IAA wishes to ask me questions about it. As I told the case officer in my interview, the Army camp that was attacked by the LTTE was only about 500 metres from my home. After the attack on the camp, the LTTE left the area but the Army became suspicious of the Tamils in my village because of our proximity to the camp. The reason the Army continued to question me and others in the village was not just about the attack on the camp, but because they then suspected us of LTTE links. Most of the people in my village were Muslim, so it was easy for the SLA to continue to target the Tamils in my area because we were a minority.

5.    I am told the case officer said I gave inconsistent accounts of being questioned by the police after [Mr X’s] death. I want to clarify that it was only me who was taken to the police station to be questioned on the first instance, while [Mr X’s] wife was just questioned at her house. On later occasions, the police took us both to the police station to be questioned.

6.    The case officer did not think I was of special interest to the police in the matter. However, as I have explained, I believe that the authorities targeted me because I managed [Mr X’s] business and was related to him. The case officer did not seem to believe that I managed [Mr X’s] business because I had only provided my conductor ID card. However, there is no such document that I had as manager of the business that I could provide. As I have explained, I knew the details of the business including its income, expenditure and business deals. I was often present when [Mr X] made business deals including the lending and borrowing of money. Although the business generated profits, it also had debts and [Mr X] owed money to other people and businesses he borrowed from. The case officer did not ask me to provide more information about the transactions but I can provide further details about my role as a manager of the business if the IAA asks me questions about it.

7.    I believe that in addition to my knowledge of [Mr X’s] business, I was continuously questioned and targeted by the authorities because of my Tamil ethnicity. Although [Mr X’s] Sinhalese employees were questioned by the authorities at the beginning of the investigation, the authorities did not continue to pursue them as they did me. The authorities came to my house regularly to question me about [Mr X’s] death but never gave me a warrant or any documents about the investigation. The Sinhalese people did not experience the same problems with the authorities.

8.    As I explained in my interview, my sister-in-law was forced to flee Sri Lanka after [Mr X’s] death because the businessmen that [Mr X] borrowed money from and the authorities regularly threatened her, demanding money. I disagree with the case officer that it is implausible that the attention from the authorities and businessmen would shift to me now that she is in India. Before I left Sri Lanka, my sister-in-law was still repaying [Mr X’s] business debts. However now that she has gone, the debts have remained unpaid. I am worried that the businessmen will target me for the money they are owed because I knew about those dealings. One of the business [Mr X] borrowed from is a travel business, [ABC Buses], which has about sixty busses. As explained to the case officer, businessmen have gone to my wife asking for money. I am fearful that if I am returned to Sri Lanka, these people will find me and extort me for money and harm me and my family because of my role in the business.

9.    If the IAA has any concerns about my credibility and my claims I request that I be given an in-person interview to allow me to respond to these concerns.

29    On 16 May 2017, the Authority notified the appellant that it had decided to affirm the decision under review. In relation to the appellants statement, the authority stated as follows (at A[5]-A[6]):

5.    On 16 [sic] November 2016, the applicant provided the IAA with a statement. A migration legal advice organisation assisted the applicant to prepare the statement. This statement refers to matters that were before the delegate and challenges the delegate’s findings on some of those matters and to this extent I am satisfied that it is not new information and I have considered it.

6.    The statement also claims that the applicant can provide the IAA with further information in relation to certain of his claims. The applicant has not stated what this information is, how it is relevant, why it was not provided earlier in the application process or what exceptional circumstances exist to justify considering this new information now. The applicant also makes a request for an in-person interview in the event that the IAA has concerns about credibility and/or claims. Section 473DB of the Act provides that subject to Part 7AA, the IAA must review decisions on the papers without interviewing the applicant. Section 473DC also provides that the IAA does not have a duty to get, request or accept any new information, whether the IAA is requested to do so by an applicant or in any other circumstances. The IAA may only consider new information in limited circumstances. Furthermore, there is no statutory entitlement to an interview. Taking all of this into account, and on the basis of the evidence before me, I am not satisfied that there are exceptional circumstances to justify considering the new information referred to by the applicant or that an interview with the applicant is necessary or required in the circumstances.

30    The Authority noted that the Department of Foreign Affairs and Trade had released an updated version (dated 24 January 2017) of the country information report (dated 18 December 2015) which had been considered by the delegate. The Authority considered this to be “new information” and was satisfied that there were “exceptional circumstances” to justify considering it. The Authority considered whether it should give particulars of the new information to the appellant under s 473DE, but decided not to taking into account, first, that the information was not specifically about the appellant and was about a class of persons of which the appellant was a member and, secondly, that the 2017 report was substantially the same as the information contained in the 2015 report.

31    The Authority set out the appellant’s claims in terms which were in substance the same as they had been set out by the delegate. The Authority accepted that Mr X had been shot and killed but it did not accept that the appellant faced a real chance of serious harm arising from that matter. It did accept that he might be questioned by police in relation to Mr X’s murder, which remained unsolved. However it noted that the appellant had been questioned in the past and had not experienced significant harm as a result. The Authority also did not accept that the appellant faced a real chance of harm in respect of Mr X’s business debts, an imputed LTTE association, being a Tamil catholic from the North of Sri Lanka, his previous interactions with the Sri Lankan authorities or from being a returned asylum seeker who fled Sri Lanka illegally.

32    The Authority also dealt with the appellant’s medical condition. The Authority considered the appellant’s illegal departure and concluded that the appellant would not be given a custodial sentence although he might be detained for several days. The Authority considered the provisions of the Immigrants and Emigrants Act 1948 (Sri Lanka) were laws of general application and that country information did not suggest it was discriminatory on its terms, that it was applied in a discriminatory manner or that it was selectively enforced.

33    The Authority was not satisfied that the appellant would face a real chance of serious harm arising from the murder of his brother-in-law, his brother-in-law’s business debts, an imputed support for or association with the LTTE, his previous interactions with the Sri Lankan authorities, his medical condition, being a Tamil Catholic from the North and being a returned asylum seeker who fled Sri Lanka illegally. The Authority also concluded that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of his return from Australia there was a real risk that the appellant would suffer significant harm.

FEDERAL CIRCUIT COURT

34    There was only one ground of judicial review advanced before the Federal Circuit Court. The appellant argued that the Authority adopted an unduly narrow construction of s 473DD of the Act “by confining its determination of the new information to whether or not I provided an explanation in accordance with Practice Direction Number 1 and in so doing, misconstrued its statutory task and constructively failed to exercise jurisdiction under s 473DD”. This was supported by the following “particulars”:

a.    At paragraph 6 the IAA reasoned that a failure to provide an explanation was determinative of the matters set out in s 473 DD. In doing so, its constructively failed to exercise jurisdiction under s 473DD.

b.    In determining whether the new information as identified by the IAA could be considered by it, s 473DD required the IAA to determine whether there were exceptional circumstances to justify its consideration of the new information as well as determining whether it is satisfied as to why the new information was not and could not have been provided to the Minister before the Minister made its decision or that the new information was credible personal information which was not previously known, and had it been known, may have affected the consideration of my claims; and

c.    Subsection 473DD(a) requires a consideration by the IAA of all relevant circumstances in determining whether there are exceptional circumstances that justify the consideration of the new information. The relevant circumstances include a consideration of the significance of the new information in the context of my claims and its nature and probative value.

35    As to this ground of judicial review, the Federal Circuit Court reasoned (at J[47]):

… As the Authority’s reasons record, the nature of the further information that the applicant might wish to provide was not provided, was not identified and it was not stated how it is relevant, why it was not provided earlier and what the exceptional circumstances were to justify its existence.

36    The Federal Circuit Court also set out various submissions advanced by the appellant at the hearing which did not strictly fall within the ground advanced in the application for judicial review. The Federal Circuit Court set out why those submissions did not establish jurisdictional error.

THE APPEAL

37    The appellant advanced seven grounds of appeal before this Court. The first ground of appeal corresponded with the ground advanced before the Federal Circuit Court. The second to seventh grounds of appeal are new.

Ground one

38    The first ground of appeal was in the following terms:

The Immigration Assessment Authority (IAA) adopted an unduly narrow construction of s473DD of the Migration Act 1958 by confining its determination of the matters set out in s473DD in considering the “exceptional circumstances”. In doing so, it constructively failed to exercise jurisdiction under s473DD of the Migration Act 1958.

39    Section 473DD operates in relation to “new information” whether or not that new information is given, or proposed to be given, by a “referred applicant”. However, where the new information is given, or proposed to be given, by a “referred applicant”, s 473DD(b) provides that the referred applicant must satisfy the Authority that 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)    it 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.

40    The appellant’s statement of 15 November 2016 to the Authority was largely constituted by submissions disputing the findings of the delegate. It also stated:

(1)    in relation to the events of 2008: “I am happy to provide further details about my memory of these events if the IAA wishes to ask me questions about it”;

(2)    in relation to Mr X’s business: “The case officer did not ask me to provide further information about the transactions but I can provide further details about my role as manager of the business if the IAA asks me questions about it”;

(3)    “If the IAA has any concerns about my credibility and my claims I request that I be given an in-person interview to allow me to respond to these concerns”.

41    The appellant did not:

(1)    make an express request for the Authority to consider “new information”;

(2)    identify the content of any new information which he wanted the Authority to consider;

(3)    provide any fact or submission which put the Authority into a position where it could form a view about whether any such new information fell within s 473DD(b)(i) and (ii) on the basis that it:

(a)    was not, and could not have been, provided to the Minister before the delegate made the decision; and

(b)    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.

42    The Authority was correct to reason as it did at A[6], set out at paragraph [29] above. This ground of appeal must fail.

Grounds 2 to 7

43    Grounds two to seven are new and leave is required in order for them to be raised for the first time on appeal: Murad v Assistant Minister for Immigration and Border Protection (2017) 250 FCR 510 at [19]. A central consideration to whether leave should be granted revolves around whether the new grounds of appeal have merit. None of the grounds have merit for the reasons set out below. Accordingly, leave is refused to raise grounds two to seven.

44    Ground 2: asserts that the Authority’s failure to exercise the power under s 473DC(3) to put the appellant on notice that the Authority was considering affirming the delegate’s decision on the basis of new credibility findings was legally unreasonable. This ground misunderstands the statutory scheme. Section 473DC(3) gives the Authority a discretion to invite a person to give new information. However, as s 473DC(2) makes clear, there is no “duty to get, request or accept, any new information”. The Authority’s view of the appellant’s credibility, to the extent it differed from that of the delegate, was not “new information” and the Authority was under no obligation as a matter of procedural fairness to forewarn the appellant that its views in respect of credibility might in some ways differ from those of the delegate – cf: ss 473DA and 473DB.

45    Ground 3: asserts that the Authority misapplied the test under s 36(2)(a) by failing to take into account “the historic suspicion held by the authorities in Sri Lanka towards the applicant, which suspicion would result in his being imputed with a pro-LTTE opinion”. The Authority considered the appellant’s claims concerning his fear of being imputed with a pro-LTTE opinion: at A[22] to A[30]. The Authority concluded, as a matter of fact, that the appellant did not face a real chance of serious harm on the basis of a real or imputed profile as a supporter of LTTE or due to any association with the LTTE: at A[30]. Those findings were open on the review material and there was no illogicality or irrationality in the Authority’s reasoning process.

46    Ground 4: asserts a denial of procedural fairness in failing to put to the appellant the 2017 DFAT country information. There was no obligation on the part of the Authority to put that information to the appellant because the information was not specifically about the appellant: s 473DE(3)(a). Nor is it apparent that it was materially different from the country information which had been before the delegate.

47    Ground 5: asserts error on the part of the Authority in failing to “consider the political and security position in Sri Lanka into the reasonably foreseeable future when [that situation] … was fluid”. This ground is not made out. The authority had regard to whether the appellant would suffer harm in the future – see, for example: A[35] to A[38] and A[41] to A[45].

48    Ground 6: asserts error in failing to hold that the harm the appellant would face if he were returned to Sri Lanka would be due to the essential and significant reason of his real or imputed political opinion as a supporter of the LTTE, motivated by deliberate conduct of his persecutors amounting to systematic and discriminatory conduct. The Authority did not consider that there was a real chance of serious harm. The Authority did not consider that the appellant would be imputed with a pro-LTTE opinion. Those conclusions were open on the material before the Authority and there was no jurisdictional error attending the decision based on the conclusions. This ground is also not made out.

49    Ground 7: asserts that the Authority “did not properly address and deal with the likelihood of pre-trial detention in considering the [appellant’s] claim for a protection visa on the complementary protection ground”. This ground is not made out. The authority dealt with the appellant’s claims concerning pre-trial detention in the context of a complementary protection claim at A[48] to A[57]. In particular, the Authority dealt adequately with pre-trial detention at A[54].

Further submissions after hearing

50    At the hearing on 15 August 2018, the Minister made submissions concerning the conduct of the proceedings in the Federal Circuit Court and of the primary judge and referred to two decisions: SZWBH Minister for Immigration and Border Protection (2015) 229 FCR 317 (Mansfield, Tracey and Mortimer JJ) and DEP16 v Minister for Immigration and Border Protection (No 2) [2017] FCA 1528 (Allsop CJ). These were provided to the appellant.

51    Judgment was reserved on 15 August 2018.

52    On 21 August 2018, without leave, the appellant filed written submissions which addressed the authorities mentioned above and annexed media articles about the primary judge. The Minister objected to leave being granted to rely on the further written submissions. In circumstances where it was the Minister who, at the hearing of the appeal, raised the conduct of the proceedings in the Federal Circuit Court and of the primary judge, leave was granted to the appellant to rely on the written submissions. In particular, although the appellant had an opportunity at the hearing to reply, as the Minister submitted, the authorities did not appear to have been provided to the appellant before the hearing, nor did it appear that the issues the subject of the submissions had been raised with the appellant before the hearing.

53    The written submissions observed that DEP16 concerned different facts from the appellant’s case and had no relevance to his claims. I accept that submission. It played no role in the conclusions set out above.

54    The written submissions catalogued a number of decisions of the primary judge determined adversely to asylum seekers. The appellant submitted this was of relevance because of the considerable discretion that trial courts have in making findings of fact. This submission misunderstands the role of the Federal Circuit Court. Its task was strictly one of judicial review. It was not entitled to make findings of fact and it did not purport to do so.

55    The role of this Court is to determine whether the Federal Circuit Court erred. For the reasons identified above, the Federal Circuit Court was correct in concluding that the Authority did not err in a way which went to its jurisdiction, including in the manner in which it made its findings of fact.

56    Finally, the written submissions point out that the appellant’s illness should not be understood as a “pivotal claim”. I have approached the matter on that basis.

CONCLUSION

57    The appeal is dismissed with costs.

Associate:

Dated:    3 September 2018