FEDERAL COURT OF AUSTRALIA

CAQ17 v Minister for Immigration and Border Protection [2019] FCAFC 203

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The first and second appellants pay the costs of the first respondent, to be fixed by way of a lump sum.

3.    On or before 4 pm on 9 December 2019, the parties file any agreed proposed minute of orders fixing a lump sum in relation to the first respondent’s costs.

4.    In the absence of any agreement having been reached, the matter of an appropriate lump sum figure for the first respondent’s costs 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

MORTIMER J:

1    I have had the advantage of reading the reasons for judgment of Derrington and Steward JJ. I gratefully adopt their Honours’ summary of the background to the appeal, the parties’ arguments and the applicable legislative provisions. For the following reasons, I agree that the appeal should be dismissed.

The factual premise for the ground of appeal

2    There was a distinct lack of clarity in the evidence on the appeal about what was the correct factual context for the appellants’ arguments. This is illustrated, as one example, in the difference between the findings of the Immigration Assessment Authority (at [18] of its reasons) that the personal claims made by the second appellant were “new information”, and the finding of the Federal Circuit Court (at [46] of its reasons) that the claims were not new information.

3    There were also difficulties presented by the key submission on behalf of the appellants that, prior to the review before the Authority, the evidence did not disclose that the second appellant had made any claims to protection herself, and instead she had only made “derivative” claims, which I took to be another way of saying that she only relied on her husband’s claims to be owed protection by Australia.

4    It will be necessary to address what the evidence establishes was the situation before the delegate, and before the Authority, because as counsel for the appellants properly accepted, the factual premise in ground one is that the claims being made on behalf of the second appellant before the Authority had not been made by her before and therefore were “new information”.

5    It is on the basis of that factual premise that the appellants’ ground of appeal rests: namely that the Authority took an unduly narrow, and legally flawed, approach to its consideration of whether there were “exceptional circumstances” justifying it considering the new information as part of its review.

6    At [43]-[49] of its reasons the Federal Circuit Court found:

In respect of paragraph [18] of the Decision, the First Respondent raises a preliminary issue. The issue is that the Second Applicants’ claims or information are not new claims or new information. To make good this proposition, the First Respondent relies on the decision of the High Court in Plaintiff M174/2016, and in particular, the consideration given by their Honours to what may constitute new information. At paragraph [24], Justices Gageler, Keane and Nettle stated as follows:

‘The term “new information” must be read consistently when used in ss 473DC, 473DD and 473DE as limited to “information” (which may or may not be recorded in a document), in the ordinary sense of a communication of knowledge about some particular fact, subject or event ..’

On the basis of the above, the First Respondent then submits that when regard is had to the submission made by the Second Applicant, which is reproduced in Court Book 574-579 (in particular paragraph [11] on page 576), what was being put was essentially speculation about the delegate’s motives, and not a communication of some particular fact, subject, or event as contemplated by the High Court.

Paragraph [11] of the Second Applicant’s submission, as reproduced at page 576 of the Court Book, is set out below:

‘The Delegate concludes that this Applicant has not been sexually harassed or abused in the past, yet how does she come to this conclusion when she has not interviewed this applicant. This Applicant might not have mentioned anything about sexual abuse in the past, but it could have been for the very reason the Delegate states “the majority of sexual cases tend to go unreported due to social stigma.” This applicant could well have been sexually abused by authorities or even these Karuna people in the past, but not told her husband for fear of being stigmatised and in a one on one interview with a female Delegate, might very well have opened up to her. This is all speculation, but nevertheless the onus was on the Delegate to interview this applicant and dispel any of the above speculation

I consider there to be force in the First Respondent’s submission. The Second Applicant in that paragraph is not advancing a claim in relation to being sexually abused or harassed. It is difficult to ascertain from the text above what new information or new claim, or what new knowledge of an event, is being put forward. In my view, no actual claim is put forward, and certainly no new information of the type described by the High Court. Indeed when the text above is considered, it is difficult to see what the Authority could actually have done in relation to what is said to be the personal claim.

The point above can be illustrated by comparison to the judgment of Justice Colvin in DFP16 referred to earlier. In that matter, a claim was clearly made that the appellant’s father had trained for six months with the LTTE and therefore the applicant’s profile was greater than previously disclosed. What was advanced there was a particular piece of new information. That stands in contrast to this matter where the Second Applicant submitted that her claims relate to her husband, the First Applicant, and, to the extent there is a sexual harassment claim, there is no claim that was advanced that she actually experienced the sexual abuse or harassment.

It is to be noted that the balance of paragraph [18] of the Decision then makes clear that the Second Applicant was relying on the claims of the primary applicant and makes the observation that the Second Applicant had many opportunities to raise these claims before any decision was made, but did not do so.

For the above reasons, I dismiss ground one of the grounds of review.

(Original emphasis, and emphasis added in bold.)

7    The Full Court’s decision in DNA17 v Minister for Immigration and Border Protection [2019] FCAFC 146 at [32], by reference to another Full Court decision of Minister for Immigration and Border Protection v CLV16 [2018] FCAFC 80; 260 FCR 482 (at [35]), clarifies that submissions made to the Authority are not – in themselves – “new information”. In DNA17 at [32] the Full Court said:

As noted by the primary judge, in CLV16, the Full Federal Court observed that the Authority is not precluded by either s 473DC or s 473DD from considering a submission from a visa applicant directed to such matters as the information already made available to the Authority and the consequences which are said to flow from that already established pool of factual information (at [35]).

8    The appellants’ argument was that the Federal Circuit Court erred in finding the second appellant had not made a “new claim” before the Authority (as indeed the Authority appeared to accept at [18] of its reasons). Describing what is in issue as a “claim” may pay insufficient attention to the description of “information” given by the plurality in Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 264 CLR 217 at [24], as “a communication of knowledge about some particular fact, subject or event”. As senior counsel for the Minister contended in this appeal, what matters is whether what is in a “claim” are new or different facts, or factual information, or whether what is occurring is that a visa applicant is relying on the same facts, or factual information, but characterised in a different way. In the latter case, this will not be new information. Questions of characterisation are in the nature of a submission: they are not facts, or factual information.

9    The Federal Circuit Court’s focus, and the focus in oral argument on the appeal on behalf of the appellants, was on the written submissions put before the Authority on behalf of the second appellant by the appellants’ then migration agent. These submissions were put before the Authority as a separate set of submissions to those put before the Authority on behalf of the first appellant. On behalf of the three child visa applicants, the agent expressly informed the Authority that they relied on the submissions made on behalf of the first appellant.

10    The Practice Direction issued by the Authority instructs review applicants as follows:

For the purposes of the review, you may provide a written submission on the following:

• why you disagree with the decision of the Department

• any claim or matter that you presented to the Department that was overlooked.

11    How the Practice Direction conforms to the terms of Pt 7AA, and the Authority’s function to review the visa application “afresh” (see Plaintiff M174 at [17]) may be put to one side for the purposes of this appeal. The relevant point here is that the content of the Practice Direction may well explain the focus on the delegate’s decision in the agent’s submissions.

12    These submissions mistakenly asserted the second appellant had ticked the relevant box in the Form 790C to indicate she was making her own claims for protection. In fact, nether the “yes” nor the “no” box were ticked. The agent’s submissions also wrongly identified this form as “Form 790b”.

13    Nevertheless, the second appellant did fill out the section underneath those boxes. That section instructs visa applicants that:

This section (Questions 88 to 96) must be completed for applicants making their own claims for protection.

14    The second appellant filled out this section of the form, at least as much as the first appellant did in his own Form 790C. The content of their entries are identical for this part of their respective forms. Both appellants identified Sri Lanka as the country they did not wish to return to. Both then stated: “My story is attached”.

15    The only “story” which was attached to the five protection visa applications was a statement identified as that of the first appellant. In that statement (at [12]-[15]) the first appellant narrated a key incident about when people from the TMVP (Karuna faction) came to his house, when he was not home but his wife was. Plainly, what was in those paragraphs were matters the first appellant was indicating he had been told by his wife, the second appellant. Later in the statement there was an account of further visits by the same faction to the house while his wife was home and he was absent. Still later in this statement (which contained many references to country information), was a section titled “Women and Children with Certain Profiles”, which described accounts of violence against women and children, including sexual violence, and which could not on any rational view have any applicability to the first appellant’s contended fears of harm to himself. Aside from these specific parts of the statement, it is clear that the large bulk of the statement (including the apparently generic parts) was directed to the first appellant’s personal claims for protection and fear of harm, and expressly so.

16    The way the second appellant’s form was filled out, perhaps in conjunction with these specific parts of the statement not directly related to the first appellant, prompted an inquiry from the delegate to the appellants’ agent. Relevantly, the delegate inquired:

I am interviewing [the first appellant] on Tuesday 8 November 2016 and I need to clarify a couple of things with you.

The application lodged on 24 April 2016 indicates that [the first appellant’s] wife is making her own claims, yet I do not have a copy of a statement from her in the application itself and she is not being interviewed.

Can I clarify if her claims are actually those of her husband?

17    The response from the appellants’ agent was:

[The first appellant’s] wife has made claims based on her husband’s statement and the problems that she suffered, given his profile. Therefore, her claims relate to the threats, harassment and treatment she received, based on her husband’s circumstances.

18    There was a further question from the delegate, which may indicate the delegate was unclear about the meaning of the agent’s response:

Can I please clarify with you that [the first appellant’s] wife is not intending to be interviewed? We have not booked her to attend an interview and she is listed as a dependant in her husband’s application.

19    The agent did not appear to answer this question. The second appellant was not interviewed by the delegate. That failure to interview the second appellant was the subject of a part of both the first and second appellants’ written submissions to the Authority.

20    In her reasons, the delegate identified the second appellant as “a member of the family unit” of the first appellant. The delegate referred in her reasons to the first appellant’s fears about whether his wife and children may be targeted if he returns to Sri Lanka, including by way of sexual abuse. The delegate then found:

Applicant 2 was not subjected to sexual harassment and abuse prior to leaving Sri Lanka. This claim is speculative and I will discuss this in the following section under protection obligations.

21    Otherwise, and until later in her reasons, all the factual findings made by the delegate concerned the first appellant’s claims. Then, under the heading “Sexual harassment and abuse”, the following findings were made:

Applicant 1 is fearful that applicant 2 and his daughters are at risk of harm because of their gender if they are separated upon return at the airport. Following the war human rights abuses took place against the civilian population inflicted by both sides of the conflict. Many women lived with challenges that threatened their freedom, dignity and security. While the incidence of sexual assaults by military personnel has decreased with the downsizing of the army in the north and east of the country, there still remains a climate of fear amongst Tamil women. Issues facing female headed households include the lack of income generation and employment opportunities as well as high levels of debt. This can lead to sexual exploitation by community leaders, family members and the military. Women mostly at risk are war widows (of which there are one in four families) and women activists. There have been complaints made against the CID as well.

DFAT refers to former female LTTE members who can face sexual harassment and stigmatisation within their communities. DFAT also points out the sexual harassment is punishable under Section 345 of the Penal Code and can carry a maximum 5 year’s imprisonment. The majority of sexual assault cases tend to ‘go unreported due to social stigma. President Sirisena has expressed a commitment to taking action to prevent the abuse of women (and children), including the speeding up of the trial process for these offences. Some recent high-profile cases of violence against women, including the gang rape and murder of a school girl in Jaffna in May, sparked community outrage and led to calls to introduce the death penalty.’

Applicant 2 and her children would not be returning to Sri Lanka unaccompanied. They will have the support of applicant 1 as well as other family members including male family members even if they are detained and questioned at the airport (see below). Applicant 2 is not a single woman on her own lacking any support within her community and she has not been sexually harassed or abused in the past.

I am therefore satisfied all applicants do not hold a well-founded fear of persecution for this reason.

(Original emphasis and footnotes omitted.)

22    In my opinion, these cannot be described as findings about the first appellant, his fears of harm, or any claims for protection made by him. They are findings about the second appellant and the children. The last sentence makes that abundantly clear. These findings appear under the overall heading of “Australia’s Protection obligations”.

23    The delegate’s reasoning is therefore, with respect, somewhat confused. No doubt some of that confusion was caused by the agent’s communications. However, I find the delegate did, in fact, assess claims made in relation to the second appellant, in her own right. That is, the delegate went beyond treating the second appellant as simply a member of the family unit of the first appellant, and assessed whether the second appellant herself satisfied the criteria for a protection visa. Nor was the second appellant only treated by the delegate as a witness in respect of events on which the first appellant relied to advance his own claims to fear persecution.

24    Returning then to the submissions made by the agent on behalf of the second appellant to the Authority, it is apparent why some time was spent criticising the delegate’s reasons and the failure to interview the second appellant. At [9]-[12], the agent submitted:

We submit that the Delegate had approached the interview of the Main Applicant with a predetermined view or mindset that she was going to reject the application of the Main Applicant and this Applicant, given she never had the intention of interviewing Applicant 2.

The Delegate addresses the issue of Sexual harassment and abuse when considering the Main Applicant’s case. The Delegate was duty bound to interview this Applicant, given she has accepted that “many women lived with challenges that threatened their freedom, dignity and security and in relation to sexual assaults there still remains a climate of fear among Tamil women.”

The Delegate concludes that this Applicant has not been sexually harassed or abused in the past, yet how does she come to this conclusion when she has not interviewed this applicant. This Applicant might not have mentioned anything about sexual abuse in the past, but it could have been for the very reason the Delegate states “the majority of sexual cases tend to go unreported due to social stigma.” This applicant could well have been sexually abused by authorities or even these Karuna people in the past, but not told her husband for fear of being stigmatised and in a one on one interview with a female Delegate, might very well have opened up to her. This is all speculation, but nevertheless the onus was on the Delegate to interview this applicant and dispel any of the above speculation.

That given this fear of the applicant, we refer you to the following…

25    The term “Main Applicant” here refers to the first appellant.

Conclusion on the factual premise

26    As the Minister submitted, the Federal Circuit Court was correct in its factual conclusions at [43]-[49] of its reasons, and at [46] in particular. There were no new facts put before the Authority in the agent’s written submissions, nor in the email extracted at [17] above. The “fear” identified in the last sentence of the extract at [24] above was a fear of the kind which had already been outlined in the material before the delegate, such as it was. Even the agent admitted that beyond this was only speculation.

27    Therefore, the factual premise of ground one of the appeal is not made out. The second appellant did not put forward any new facts, or factual information, even if it could be said she made a “claim” before the Authority. All of the facts and factual information were contained in the material which was before the delegate, such as it was. The agent’s submissions added nothing in a factual sense to what was already there. The Authority was incorrect in its factual finding at [18] of its reasons to find that the second appellant was now asserting personal claims for the first time, and that they constituted “new information”. However, there is no jurisdictional error in that factual finding by the Authority, nor was it contended by the appellants that there could be.

28    Ground one must fail on this basis alone.

29    However, even if I am wrong, and the Authority was correct in its finding at [18] of its reasons to identify “new information” in what was contained in the agent’s written submissions, I would not uphold the ground of appeal, for the following reasons.

Other reasons not to uphold the ground of appeal

30    There are three other reasons why I would not, in any event, uphold the ground of appeal:

(a)    the Authority made a finding under s 473DD(b)(i) and that was sufficient to justify its refusal to accept the “new information”;

(b)    there was no error in its approach to exceptional circumstances under s 473DD(a); and

(c)    even if there was an error, it was not material to the outcome of the review.

A finding made under s 473DD(b)(i)

31    First, in my opinion, a fair reading of [18] of the Authority’s reasons, in the context of the whole of the reasons, discloses that it made two, separate, findings in that paragraph. It is as well to repeat [18]:

Having considered all of the evidence before me, I am satisfied that at the time of the decision, the second applicant had not made any personal claims and was relying on the claims of the primary applicant. I am therefore satisfied that the assertion of personal claims now is new information. For the reasons I have set out above, I am satisfied that the second applicant and her lawyer were given many opportunities to raise these claims before the decision was made and did not do so. I am not satisfied that there are exceptional circumstances to justify considering this new information and I have not done so.

32    The first half of this paragraph was the Authority’s conclusion that the second appellant had made personal claims for the first time before the Authority.

33    The second half of this paragraph, commencing with “For the reasons I have set out above…” should in my opinion be read as a finding under s 473DD(b)(i): namely, that the second appellant did not satisfy the Authority that the new information could not have been provided to the Minister prior to the delegate making her decision under s 65. Reading what the Authority outlined prior to [18], and on which it relied for this finding, it is apparent it did not accept the agent’s argument that the second appellant was shut out of an opportunity to make her claims before the delegate, nor did it accept that she was consciously denied the opportunity for an interview. Rather, it found the agent did not request an interview for the second appellant on several occasions when he had the opportunity to do so, nor did he clarify if she was making her own claims.

34    I consider this part of [18] should be understood as a separate finding under s 473DD(b)(i).

No error in approach to exceptional circumstances

35    The last sentence of [18] of the Authority’s reasons, about exceptional circumstances, is properly read as a second and separate finding, under s 473DD(a). The Authority relied in part on the circumstances it had already outlined, which concerned why the claims on behalf of the second appellant were not made before the delegate, and the missed opportunities to request for her to be interviewed. As the Minister submits, the Authority also considered (see [10] of its reasons) what was in the media articles to which the agent’s submissions referred, and it is correct that this aspect of the Authority’s reasons should be seen as part of its explanation for why it saw no exceptional circumstances, since the media articles were factual information said to support the second appellant’s new claim.

36    Even though there was reliance by the Authority on matters which also go to s 473DD(b)(i), I do not consider there is any error disclosed in the Authority’s approach to the concept of exceptional circumstances in s 473DD(a). Indeed, the appellants’ argument positively asserts that s 473DD(b) can be brought into the exceptional circumstances analysis: if that is true for subpara (ii), it is also true for subpara (i).

37    It is correct there was no express assessment by the Authority of whether the second appellant’s new claim (as the Authority identified it) was “credible personal information” within the meaning of s 473DD(b)(ii). As the authorities reveal, there does not have to be such an assessment in every case. The circumstances in each review by the Authority will be different, and must be carefully assessed. In some circumstances, perhaps because of factors such as the nature of the factual information now sought to be put before the Authority, an absence of any such consideration might indicate the Authority has taken an overly narrow view of what might be encompassed by “exceptional circumstances”. That is not what occurred here – indeed, in a sense, by its finding in [18], the Authority was accepting the factual information (as it saw it) was credible. However, the agent’s submissions had not satisfied the Authority that there was a justification for the “claims” not being raised at the delegate level, and therefore there was no justification for allowing them to be raised for the first time before the Authority, noting (as it did in [19]) that the circumstances in which it could consider new information were limited.

38    In the circumstances of this review, there was no jurisdictional error in the approach taken.

Any error not material to the outcome of the review

39    Even if the Authority erred in its approach to the breadth of the concept of exceptional circumstances, in particular by not looking at whether what the second appellant sought to present was “credible personal information”, in my opinion the error was not material to the outcome of its review. That is because of the fact-finding in which the Authority engaged later in its reasons.

40    Under the heading “Fear of harm for family”, the Authority considered whether the second appellant faced a risk of harm based on her gender. It did so by reference to the first appellant’s claims (and its non-acceptance of there being any real chance of him suffering serious harm) but then also by a separate assessment of the risks faced by women in Sri Lanka, referring to country information. It found, correctly, at [47] that:

There are no claims or evidence before me that the second applicant has suffered any threats, harassment, discrimination or violence (other than the claims linked to the primary applicant).

41    That finding was relevant because it affected how the Authority assessed the applicability of the country information to the second appellant, in terms of the well-foundedness of any fear she had about harm on her return to Sri Lanka.

42    The Authority also considered (from [60]-[77] of its reasons) the risks to both the first and second appellants on return to Sri Lanka, by reason of their illegal departure and by reason of them being returned asylum seekers. At [68] in particular it expressly considered the risks to the children.

43    In other words, the Authority went beyond the express claims made both to the delegate and to the Authority, which centred on the first appellant as the primary applicant for the protection visa. There was no realistic possibility that an error of the kind asserted by the second appellant could have affected the outcome of the review: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 163 ALD 38 at [45] (Bell, Gageler and Keane JJ). That is because, even if the Authority had found exceptional circumstances, all it would have considered was the content of the agent’s submissions on behalf of the second appellant. The matters it did consider and determine, in respect of the second appellant as if she had made her own claims to protection, were at least as expansive as the matters addressed in those submissions. And yet the Authority still did not form the requisite state of satisfaction. For that reason, the appellants were not deprived of the realistic possibility of a different outcome, even if the Authority erroneously took too narrow an approach to the concept of exceptional circumstances in s 473DD(a).

A further matter

44    Finally, even if all those hurdles could have been overcome on the appeal, there may have been a real question about appropriate relief. The ground of appeal relates only to the second appellant. Aside from some general references to corroboration (which do not sit easily with the content of ground one being about a personal claim by the second appellant), there was no argument on the appeal that the Authority’s review in respect of the first appellant miscarried. It is not necessary to address this point, given the conclusions I have reached, but it is important to identify it as a further hurdle to the appeal succeeding in respect of all the appellants, and in particular the first appellant.

Associate:

Dated:    25 November 2019

REASONS FOR JUDGMENT

DERRINGTON AND STEWARD JJ:

Introduction

45    This is an appeal from a decision of the Federal Circuit Court of Australia (FCC) which dismissed an application for judicial review in respect of a decision of the Immigration Assessment Authority (the Authority). The Authority had affirmed a decision of a delegate of the Minister not to grant the appellants protection visas.

46    There are five appellants in this matter. They were all applicants for protection visas. The father and husband in the group was the first applicant and his wife the second. Their three children were respectively the third, fourth and fifth applicants. They will be collectively referred to as the appellants.

Background

47    The appellants are all Tamil Hindus from the Batticaloa district, in the east of Sri Lanka. They arrived in Australia (on the Cocos Islands) on 4 November 2012 as unauthorised maritime arrivals.

48    On 29 March 2016, the appellants applied for Safe Haven Enterprise (Sub-class 790) Visas. The first appellant indicated in his application form that he was raising his own claim for protection. The second appellant did not specifically indicate whether she was or not, but did indicate in the Form 790C that her story was “attached”. However, no statement or story by the second appellant was attached to the visa application. The only statement attached to the applications was the first appellant’s, which articulated his claims for protection.

49    On 26 October 2016, the Minister’s delegate sent an email to the appellants’ legal representative inquiring as to whether the second appellant was making her own claims. It was indicated that the Department did not then have a copy of a statement from her. The legal representatives were asked to clarify whether her claims were actually those of her husband. In his statement, the first appellant had claimed that, as a result of his involvement in political activities, some men, said to be from a rival political faction, came to his home whilst he was not there, pushed their way in, held a gun to his wife’s head and threatened to kill the first appellant.

50    By correspondence in reply on 2 November 2016, the appellants’ solicitors advised the delegate that the second appellant had made claims based on the first appellant’s statement and the problems that she suffered given his profile. It was then said that her claims “relate to the threats, harassment and treatment she received, based on her husband’s circumstances”. That was somewhat unhelpful in the context of the claim now sought to be advanced by the second appellant.

51    On 3 November 2016, the delegate responded and sought clarification as to whether the second appellant was intending to be interviewed. There was no response to that email. There was no explanation why the migration agent for the second appellant did not respond to the delegate’s email.

52    The first appellant was interviewed by the delegate on 7 February 2017. The appellants’ representative was also in attendance but they did not ask that the second appellant be interviewed.

53    No correspondence or further submissions were provided to the delegate after the hearing.

54    On 1 March 2017, the delegate refused to grant the appellants the visas which they had sought. In the light of the correspondence entered into between the delegate and the appellants’ representative, the delegate formally dealt with the matter before her on the basis that the first appellant was advancing the substantive claims and the other appellants claimed to be members of the family unit. However, substantively, the delegate identified that the first appellant expressed fear that his family and, in particular, his wife and children, would be sexually abused were they to return to Sri Lanka. It was concluded that the second appellant was never exposed to sexual abuse in Sri Lanka and the assertion that there was a fear of sexual harassment or abuse was considered to be speculative. The delegate considered the country information relating to the sexual abuse of women in Sri Lanka and determined that the second appellant was not within the category of persons who would have a reason to fear sexual harassment or abuse were she to return, and that she had not ever encountered such abuse of that nature. The delegate held that she was “therefore satisfied all of the applicants do not hold a well-founded fear of persecution for this reason.”

55    Given that the claim of persecution was only made by the first appellant, this finding was not necessary. Save that, in the confusion caused by the appellants’ agent, it could not be said that the delegate acted in an inappropriate manner by considering the question.

56    The matter then proceeded to the Authority.

57    On 23 March 2017, the appellants’ legal representative sent two written submissions to the Authority, one on behalf of the first appellant and one on behalf of the second. Of importance for the present matter is what is said were assertions in the submissions of the second appellant that she was subjected to sexual harassment and abuse as a result of her husband’s activities.

58    After considering the submissions sent on behalf of the first and second appellants, the Authority affirmed the decision not to grant the appellants the visas on 21 April 2017. To the extent to which the submissions on behalf of the second appellant indicated that she was making a claim on her own behalf, the Authority considered such information to be “new information” within the meaning of s 473DC of the Migration Act 1958 (Cth), but at [18] of its reasons found that there were no exceptional circumstances to warrant its consideration. It said:

Having considered all of the evidence before me, I am satisfied that at the time of the decision, the second applicant had not made any personal claims and was relying on the claims of the primary applicant. I am therefore satisfied that the assertion of personal claims now is new information. For the reasons I have set out above, I am satisfied that the second applicant and her lawyer were given many opportunities to raise these claims before the decision was made and did not do so. I am not satisfied that there are exceptional circumstances to justify considering this new information and I have not done so.

59    The appellants sought review of the Authority’s decision by an application for review filed on 11 May 2017. An amended application was filed on 22 January 2019. By ground one of the amended application it was alleged that the Authority had erred by refusing (in [8], [9], [10] and [18] of its reasons) to consider new information, including (in respect of [18]) refusing to consider new information said to relate to sexual harassment and abuse.

60    It was this determination which gave rise to the ground of appeal now pursued in this Court.

61    The FCC determined that the information provided by the second appellant did not advance a claim that she had been sexually abused or harassed. The primary judge also held that no actual claim was being advanced by the submissions made on the second appellant’s behalf, such that there was no “new information” which might have been the subject of the exercise of power. Further, the Court held that, even assuming there was some “new information” contained in the second appellant’s submission, the Authority made no error in determining that there were no exceptional circumstances to justify its consideration.

Appeal to this Court

62    The only ground of appeal pursued before this Court was ground one of the notice of appeal, which read:

1.    The primary judge erred in failing to find that the Second Respondent had adopted an incorrect approach in determining whether new information was to be considered.

Particulars

a.    The primary judge wrongly determined the Second Appellant’s personal claim was not new information.

b.     The primary judge wrongly determined that the Second Respondent did not adopt an unduly narrow approach in considering whether exceptional circumstances existed within the meaning of s 473DD of the Migration Act 1958 (Cth).

The relevant legislative provisions

63    For the purposes of this matter, ss 473DC and 473DD are especially relevant. They provide:

473DC    Getting new information

(1)    Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:

(a)    were not before the Minister when the Minister made the decision under section 65; and

   (b)     the Authority considers may be relevant.

(2)    The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.

(3)    Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:

   (a)    in writing; or

(b)    at an interview, whether conducted in person, by telephone or in any other way.

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.

64    Section 473DE(1) is also relevant. It provides:

473DE    Certain new information must be given to referred applicant

(1)    The Immigration Assessment Authority must, in relation to a fast track reviewable decision:

(a)    give to the referred applicant particulars of any new information, but only if the new information:

(i)    has been, or is to be, considered by the Authority under section 473DD; and

(ii)    would be the reason, or a part of the reason, for affirming the fast track reviewable decision; and

(b)    explain to the referred applicant why the new information is relevant to the review; and

(c)    invite the referred applicant, orally or in writing, to give comments on the new information:

    (i)    in writing; or

(ii)    at an interview, whether conducted in person, by telephone or in any other way.

Consideration

Operation of ss 473DC and 473DD

65    Limited attention was paid by the parties to the manner in which ss 473DC and 473DD operated, either individually or together. As the heading to Subdivision C (“Additional information”) suggests, both provisions are concerned with further information which may be obtained and considered by the Authority. Section 473DC affords to the Authority a discretion to “get” any documents or information which were not before the Minister when the relevant decision was made and which the Authority considers may be relevant. Other than those two requirements the discretion is otherwise unconfined.

66    However, s 473DD restricts the type of information which the Authority may “consider”. It does that by prohibiting the Authority from considering new information unless it satisfies the criteria prescribed in sub-paragraphs (a) and (b) of s 473DD. However, the tests are not wholly objective. Whether any piece of new information passes the test is dependent upon the Authority reaching a state of satisfaction about it. In sub-paragraph (a) the Authority must be “satisfied” that there are exceptional circumstances to justify consideration of the new information. The cumulative requirement in sub-paragraph (b) is that the Authority be “satisfied” either that the new information was not and could not have been provided to the Minister when the initial decision was made, or that it is credible personal information which was not previously known and, had it been known, may have affected the consideration of the appellants’ claim.

67    The issue on appeal is whether the Authority’s non-satisfaction that there were exceptional circumstances to justify the receipt of the submissions on behalf of the second appellant was vitiated by error. In other words, was the Authority’s lack of satisfaction as to the requirement in sub-paragraph (a) validly formed as required by the Act?

68    In many ways, as a matter of substance, the requirements of s 473DD(a) and (b) are or are analogous to jurisdictional facts on which the discretion to consider further information is conditioned. Moreover, there is no real difference in the principles by which a Court might identify an error in the formation of a state of mind necessary for the vitiation of a subjective jurisdictional fact and those applicable to the state of satisfaction or non-satisfaction of the matters in s 473DD(a) and (b).

69    Were it to have been the case that the facts on which consideration of “new information” was conditioned were objective, this Court would have had complete power to determine whether they existed. Slightly different issues arise where the pre-condition is the subjective state of mind of a decision-maker. In Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 651 [130], Gummow J observed:

In Bankstown Municipal Council v Fripp ((1919) 26 CLR 385 at 403), Isaacs and Rich JJ pointed out that, with the object of preventing litigation on questions of jurisdictional fact, the legislature may introduce into the criterion elements of opinion or belief by the decision-maker. Section 65 of the Act is an example. The prosecutor was entitled to the grant of a visa only if the Minister were “satisfied” that the prosecutor answered the description in s 36(2).

See also his Honour’s comments with McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165 at 1175 [54].

70    However, the conditioning of the requirements on the Authority’s state of satisfaction does not completely prevent the Court’s review of the veracity of the state of mind so formed, even if the grounds on which that might occur are more limited than where an exercise of power is conditioned upon an objective fact: EHF17 v Minister for Immigration and Border Protection [2019] FCA 1681, [66]-[69].

71    The locus classicus of the principles in relation to examining a subjective state of mind which conditions the operation of statutory power is that of Dixon J in Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 at 360. There his Honour identified those circumstances which might vitiate the existence of a purported state of mind in the following terms:

If he does not address himself to the question which the [statute] formulates, if his conclusion is affected by some mistake of law, if he takes some extraneous reason into consideration or excludes from consideration some factor which should affect his determination, on any of these grounds his conclusion is liable to review. Moreover, the fact that he has not made known the reasons why he was not satisfied will not prevent the review of his decision. The conclusion he has reached may, on a full consideration of the material that was before him, be found to be capable of explanation only on the ground of some such misconception. If the result appears to be unreasonable on the supposition that he addressed himself to the right question, correctly applied the rules of law and took into account all the relevant considerations and no irrelevant considerations, then it may be a proper inference that it is a false supposition. It is not necessary that you should be sure of the precise particular in which he has gone wrong. It is enough that you can see that in some way he must have failed in the discharge of his exact function according to law.

72    If the person whose state of mind is in question has committed any of the above errors, the requisite state of mind will not exist for the purposes of the legislation: R v Connell; Ex parte The Hetton Bellbird Collieries Ltd (1944) 69 CLR 407, 432; S20/2002 at 1168 [8] per Gleeson CJ. However, the Court will not substitute its own state of mind or belief as to what that state of mind ought to have been.

73    In this case the question which arises involves ascertaining whether, in reaching the state of non-satisfaction that exceptional circumstances existed, the Authority was required to (but failed to) take into account certain matters. This draws attention to the expression from the passage of Dixon J above of “or excludes from consideration some factor which should affect his determination”. It is apparent that expression is analogous to a failure to take into account a “relevant consideration” in the context of jurisdictional error in the exercise of a discretionary power. This analogy was identified in Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252, where the High Court, when considering the operation of s 65 of the Migration Act, said, at 270 [54]:

The question which arises, by reference to s 65(1), is whether the Minister can reach a state of non-satisfaction about the criteria if the Minister puts out of consideration whether there was an answer to the information contradicting the employment history put forward by the appellant. An analogy may be drawn with material, or relevant, considerations. In Avon Downs Pty Ltd v Federal Commissioner of Taxation the Commissioner was required to be satisfied as to the state of voting power at the end of the year of income in question. Dixon J said that the Commissioner’s decision was subject to review, inter alia, if he “excludes from consideration some factor which should affect his determination”. Where a decision-maker is bound to take a factor into account but does not, the requisite state of satisfaction is not reached.

(footnotes omitted)

74    Relevantly, for the latter proposition the plurality relied upon Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 211 CLR 411 at 471 [85] and Foster v Minister for Customs and Justice (2000) 200 CLR 442 at 447 [7]-[8] per Gleeson CJ and McHugh J.

75    Applying the analogy with a failure to take into account a “relevant consideration”, it might be thought that, in determining whether it is satisfied or not, the Authority is required to take into account those matters which are expressly or impliedly identified by the Act as being mandatory. Any implication will arise from the nature, scope and purpose of the provision: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 45-46. Other than the factors which the Authority is expressly or impliedly obliged to consider, or those which it is expressly or impliedly bound to ignore, the matters which it might take into account are unconfined.

76    However, as is discussed below, this approach may not always be appropriate where the formation of the relevant state of mind requires a factually idiosyncratic analysis of the circumstances of a particular case. The above approach concerns “legality” and the obligation of the repository of power to comply with the requirements of the legislation by taking account of those matters which the legislature has expressly or impliedly required. Where the issue is dependent upon the facts of the particular case at hand, it is not possible to legislate for all of the mandatory requirements which might be applicable to infinitely variable situations.

Appellants’ submissions that the Authority erred in forming its state of mind

77    The appellants’ submissions, as to the alleged error of the Authority in reaching the state of mind that it was not satisfied that there were exceptional circumstances to justify the receipt of the new information, were not entirely clear. It was not directly said that the Authority was obliged to take into account the matters in sub-paragraph (b) or the circumstances relevant to those issues. In part, the submission appeared to be that the Authority was bound to consider that circumstances relevant to matters in sub-paragraph (b) “may” be relevant to sub-paragraph (a). That, however, is an overly nuanced submission. In effect, it amounts to a submission that consideration had to be given to those circumstances.

78    The primary judge referred to the decision of the High Court in Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217, where the majority (Gageler, Keane and Nettle JJ) assayed in some detail the provisions of Part 7AA of the Migration Act relating to fast track review processes. Their Honours considered that s 473DC was entirely facultative in the sense it merely identified the occasions on which the Authority can “get”, in the sense of seek out and physically obtain, new information (at 228 [23]). By contrast, their Honours considered s 473DD as imposing restrictions on when the Authority could consider new information. In that respect they identified that the pre-condition in s 473DD(a) must always be met before any new information could be considered, in the sense that there must be “exceptional circumstances” to justify its consideration. At 229 [30] their Honours said:

Quite what will amount to exceptional circumstances is inherently incapable of exhaustive statement. The word “exceptional”, in such a context, is not a term of art but “an ordinary, familiar English adjective”: “[t]o be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered”.

(footnote omitted)

79    Their Honours then noted that there was a further cumulative pre-condition in s 473DD(b) to the Authority’s consideration of new information.

80    Although s 473DD does not expressly authorise the Authority to consider new information, but rather identifies when it must not, it appears that the power to consider the new information has its foundation in that section. Relevantly, subs 473DE(1)(a)(i), which concerns the obligation of the Authority to give an applicant particulars of the new information, suggests that s 473DD is, in fact, an authorising power. It specifically refers to new information that “has been, or is to be, considered by the Authority under s 473DD” which relates to the “consideration” of new information subsequent to the satisfaction of the two pre-conditions.

81    The legislative scheme created by the above provisions is somewhat unusual. Section 473DB requires the Authority to review the fast track reviewable decision by considering the review material without, inter alia, accepting or requesting new information. That prohibition is subject to the other sections in Part 7AA. According to M174/2016, s 473DC creates a discretion in the Authority to “get any… new information” but only in the sense of being able to seek it out. Thereafter, on its face, s 473DD identifies what “new information” the Authority must not consider. It does not specifically or expressly provide that the Authority may (in the face of the prohibition in s 473DB(1)(a)) consider any new information, but an implication arises from (at least) subs 473DE(1)(a)(i) that it empowers the Authority to consider it. One difficulty is that, as the power to “consider” the new information is implicit, there is a paucity of indicators as to whether the power is discretionary and, if so, a paucity of indicators as to what matters the Authority must or must not take into account in determining whether to consider the new material.

82    In support of their submission that the Authority was obliged to consider circumstances relevant to the matters in sub-paragraph (b), the appellants relied upon the decision in BVZ16 v Minister for Immigration and Border Protection (2017) 254 FCR 221. There, White J discussed the considerations which the Authority is to take into account when determining whether it is satisfied that exceptional circumstances exist. At 231 [41], his Honour said:

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: Griffiths v The Queen (1989) 167 CLR 372 at 379 (Brennan and Dawson JJ); Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [23]-[26] (Rares J); Hasim v Attorney-General (Cth) [2013] FCA 1433; (2013) 218 FCR 25 at [65] (Greenwood J).

83    His Honour recognised that the circumstances pertaining to whether exceptional circumstances exist may, in an appropriate case, overlap with the circumstances relevant to the satisfaction of either of the requirements in s 473DD(b). That is to say, for example, if the documents or information could not have been provided to the Minister, those circumstances may also be relevant as to whether exceptional circumstances exist: see at 224 [9]. Despite that, the appellants’ submission seemed to suggest that the decision in BVZ16 is authority for the proposition that the matters relevant to sub-paragraph (b) were mandatory considerations for sub-paragraph (a).

84    The Minister accepted the proposition that sub-paragraphs (a) and (b) of s 473DD are cumulative and may overlap to some extent. However, he relied on the recent decision in AQU17 v Minister for Immigration and Border Protection (2018) 162 ALD 442 as superseding, to some extent, the obiter in BVZ16. In AQU17, the Full Court emphasised that the question of whether there are exceptional circumstances must depend upon the particular circumstances of the case. It acknowledged that, whilst the circumstances relevant to the determinations in sub-paragraphs (a) and (b) of s 473DD may overlap, there is no obligation, in considering whether exceptional circumstances exist, to consider the matters which may be relevant to sub-paragraph (b). At [13] and [14], the Full Court said:

13 As a matter of construction, it is undoubtedly correct that s 473DD(a) and s 473DD(b) are cumulative requirements. Section 473DD(a) imposes the requirement that the Authority must not consider new information unless it is satisfied that there are exceptional circumstances to justify considering the new information. Section 473DD(b) imposes the further requirement that the new information was not, and could not have been, provided to the Minister before the Minister made the decision to refuse to grant the protection visa (s 473DD(b)(i)) or is new information that 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 (s 473DD(b)(ii)). “Exceptional circumstances” is not a defined term for the purposes of s 473DD(a) and the words are to be given their ordinary meaning. In 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: BVZ16; Plaintiff M174. In Plaintiff M174 the plurality (Gageler, Keane and Nettle JJ with whom Gordon and Edelman JJ each agreed in separate reasons) observed at [30] in relation to the requirement in s 473DD(a):

Quite what will amount to exceptional circumstances is inherently incapable of exhaustive statement. The word “exceptional”, in such a context, is not a term of art but “an ordinary, familiar English adjective”: “[t]o be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered”.

The quotation is from R v Kelly at [51], which was also cited in BVZ16 for the meaning “exceptional circumstances” in the context of s 473DD(a). There may be a combination of factors which, when viewed together, constitute “exceptional circumstances”, or one factor of its own which may be sufficient for “exceptional circumstances” to exist. In each case, whether there are exceptional circumstances must depend on the particular circumstances of the visa applicant’s case.

14 As the plurality in Plaintiff M174 made clear, what will amount to exceptional circumstances is inherently incapable of exhaustive statement. Each case will be different to every other case and must be treated on its merits and the matters for the Authority to take into consideration must necessarily vary from case to case. It is a misconception that the factors in s 473DD(b)(i) and (ii) of the Act must, in all cases, be considered by the Authority in deciding whether “exceptional circumstances” exist as s 473DD(b) does not codify what constitutes “exceptional circumstances”. Rather, s 473DD(b) sets out the further preconditions that must also be met before the Authority can consider the new information cumulatively upon the precondition set out in s 473DD(a): Plaintiff M174 at [31]. As BVZ16, BBS16 and CHF16 illustrate, in many cases consideration of the factors in ss 473DD(b)(i) and/or (ii) may assist the Authority in deciding whether or not it is satisfied that exceptional circumstances exist but whether those factors will have bearing upon that decision will depend on the particular case.

85    In this matter the primary judge adopted and applied the observations of the Full Court in AQU17 which, as far as they go, would appear to be correct.

86    However, the decision did not identify what factors the Authority is required to consider in reaching its state of satisfaction or non-satisfaction of the twin requirements of s 473DD. As appears from the above quote, in the course of discussing what might amount to “exceptional circumstances”, it was observed that the factors relevant to the determination will depend on the nature of the case, a particular factor or a combination of factors may be sufficient, and the matters to be considered will vary from case to case. Still, that says little, if anything, about what type of factors are mandatory and which are not.

87    As mentioned previously, the approach which requires the person whose state of mind is relevant to consider those factors which are expressly or impliedly mandated may not be applicable in all of those cases where the matter in question is factually distinctive. That is possibly more applicable in this case where the Authority has no obligation “to get, request or accept any new information”. Indeed, the nature of the fast-track process is directed to undertaking the review without considering new information. That tends against the suggestion that there might exist any obligation to consider any particular matter in the process of reaching a state of satisfaction about the existence of exceptional circumstances. If the Tribunal has an unconfined discretion to not accept new material proffered to it, there is a not inconsiderable argument that it would not be obliged to consider specific factors when deciding whether “exceptional circumstances” existed.

88    If the Authority does receive new information and decides to accept it, and turns its mind to s 473DD(a) to ascertain whether it reaches the necessary state of satisfaction, there is little if anything in the words of that provision which create some mandatory factors for consideration. There is no statutory process which requires the Authority to consider the facts advanced by the applicants in support of that conclusion. The material may have been obtained by the Authority of its own volition and there is no limitation as to the avenues by which it might come to the Authority’s attention.

89    Nevertheless, where the occasion arises for the Authority to ascertain whether it is satisfied that exceptional circumstances exist, it is necessarily involved in the adjudicative task of assessing the application for a protection visa by the fast-track method. Primarily, that is to proceed on the material before the delegate, save where the exception for new information applies. In that context, it may be that a necessary consideration will be the reason or reasons why the information was not before the delegate, that being the relevant exclusionary criterion in s 473DC(1), which has the consequence that an exception is to be found. Those circumstances must take the case at hand outside of those regularly, routinely or normally encountered: M174/2016. The reasons why the information was not before the delegate will vary from case to case. The information may not have been known to the applicant or not in existence at the time of the delegate’s decision. However, it is not easy to discern any additional mandatory factors.

90    However, seeking to ascertain what factors must be considered in reaching the state of satisfaction or non-satisfaction for the purposes of s 473DD(a) may be the wrong approach. As the overall question for the authority involves a factually idiosyncratic analysis where the facts and circumstances which might support or deny the existence of exceptional circumstances will vary from case to case, it may simply be that it is not possible to identify, as a matter of statutory construction, what are or are not matters or factors which must be considered. In the reaching of the relevant state of mind, perhaps the real question is whether the Authority has asked itself the correct question and applied the correct test, being whether there are exceptional circumstances to justify the consideration of the “new information” despite it not having been before the Minister when the initial decision was made. If the Authority has failed to consider significant matters factually relevant to the question of whether exceptional circumstances existed, it is likely that an inference arises that it either asked itself the wrong question or failed to apply the correct test. In that way it is not that the legislation mandates consideration of particular facts or types of fact, but that it requires the Authority to consider the factual matrix of the circumstances of the application before it and apply the prescribed statutory test. Those circumstances will dictate those factors which are obviously relevant factors and those which are obviously irrelevant.

91    Necessarily, a consideration of whether there are exceptional circumstances may, in a particular case, require the Authority to examine facts relevant to the matter to be considered in sub-paragraph (b) of s 473DD: CMY17 v Minister for Immigration and Border Protection [2018] FCA 1333 at [26]. There is no requirement that they be considered in all cases. However, as the “exceptional circumstances” are required to exist to justify a departure from the general prohibition on the consideration of “new material” as imposed by s 473DB(1), the facts relevant to the matters in sub-paragraphs (b)(i) and (ii) which will often be pertinent to whether exceptional circumstances exist are those relating to why the information was not before the Minister when the original decision was made. Each sub-paragraph has elements which give rise to such temporal consideration, in that (b)(i) refers to information which was not and could not have been provided to the Minister at the relevant time and (b)(ii) refers to information which was not known at that earlier time. So matters relevant to why the information was not or could not have been provided to the Minister or to why certain information was not known earlier will frequently be relevant to whether exceptional circumstances exist. Whether they are in a particular case will depend upon the circumstances.

92    That is not to say that matters concerning the substance or merits of the new information will not sometimes be relevant. Were a piece of compelling information in existence at the time of the Minister’s decision but not revealed due to an oversight, its degree of relevance may tip the scales towards a favourable decision, whereas less significant information may not have done so in the same circumstances.

93    For the sake of completeness, it might be observed that s 473DD(b) has a slightly different structure. It operates if the “applicant satisfies the Authority” of the matters in (i) or (ii). In that scenario, the implication may be that the Authority is required to take into account or have regard to the matters advanced by the applicant as establishing either outcome.

The case advanced by the appellants

94    The case advanced by the appellants before the Court as to the manner in which the Authority allegedly erred in its consideration of whether exceptional circumstances existed was opaque at best. In broad terms it seemed to be that, when considering whether exceptional circumstances existed, the Authority did not take into account a claim which the second appellant was said to be advancing that she held a well-founded fear of harm from sexual assault. The gravamen of the complaint was possibly that the Authority focused on the reasons why the claim was not advanced earlier rather than its merits, quality or substance. However, the precise nature of that claim was not easy to identify.

The initial case advanced on appeal

95    In the appellants’ written submissions it was said that the Authority failed to consider whether there were exceptional circumstances for considering the new information concerning the second appellant that “she did experience sexual violence in Sri Lanka as her husband had claimed before the primary decision maker”. It was submitted that the second appellant had indicated in the visa application form that she was making her own claim (because she had ticked the box indicating as such), and that in the submissions to the Authority she had given evidence of the sexual violence which corroborated her husband’s evidence on that topic. That was said to particularly arise from paragraph [11] of the submissions, which said:

The Delegate concludes that this Applicant has not been sexually harassed or abused in the past, yet how does she come to this conclusion when she has not interviewed this applicant. This Applicant might not have mentioned anything about sexual abuse in the past, but it could have been for the very reason the Delegate states “the majority of sexual cases tend to go unreported due to social stigma.” This applicant could well have been sexually abused by authorities or even these Karuna people in the past, but not told her husband for fear of being stigmatised and in a one on one interview with a female Delegate, might very well have opened up to her. This is all speculation, but nevertheless the onus was on the Delegate to interview this applicant and dispel any of the above speculation.

96    The difficulty with the case as initially framed was that it failed on the evidence. First, the submission that the second appellant had ticked a box in the application form indicating that she was advancing claims in her own right, but the rest of the application was derivate on her husband’s claims, was erroneous. The second appellant did not respond to question 87 in her application form which asked “Are you making your own claims for protection?” Whilst there were two boxes adjacent to that question, such that the applicant might indicate “yes” or “no”, neither was marked. Further, on the hearing of the appeal, Counsel for the appellants submitted that the claim advanced by the second appellant was first advanced to the Authority by the terms of the submissions which were given on her behalf. That was not consistent with the submission that the second appellant had made her claim in the application form. Second, contrary to the appellants’ written submissions, there was no claim advanced in the statement attached to the first appellant’s application which suggested that the second appellant had suffered sexual abuse or harassment. The statement had the appearance of being the combination of a pro-forma document which recited several sources of country information concerning Sri Lanka and particulars of the first appellant’s circumstances. In it, reference was made to country information which identified that, after the cessation of the civil war in 2010, there were reported incidents of sexual and gender based violence against women and girls in former conflict zones. Incidents of rape were reported in the north of the country, as well as in camps and detention centres. Although the written submissions to this Court stated that the submission to the Authority on behalf of the second appellant contained “new corroborative information” and “a first-hand account of the claimed episode of from the victim, rather than a second-hand account from the husband of the claimed victim”, nothing of that nature appeared. The first appellant’s statement made no claim that the second appellant was so assaulted, and neither did the second appellant’s submissions to the Authority. Third, reliance on paragraph [11] of the submissions made on behalf of the second appellant was misguided. That paragraph did not make any claim or statement or provide any information. It consisted of mere hypothetical conjecture by the author, and seemingly was based on a misunderstanding of the appellants’ claims.

The case advanced during the oral hearing

97    During the hearing of the appeal, the “new information” which was alleged had been given to the Authority was said to be the fact that the second appellant was advancing her own claim that, because she was associated with the first appellant, she would suffer sexual abuse or harassment were she to return to Sri Lanka. This, so it was submitted, arose from the terms of the submission made to the Authority on behalf of the second appellant, and by the terms of the email of 2 November 2016 which, it was said, provided some integers of the claim — albeit a claim first made over four and a half months later.

98    This assertion of what constituted the “new claim” was advanced for the first time at the hearing of the appeal.

The respondent’s submissions in relation to the new claim

99    Mr Johnson SC for the Minister submitted the following:

(a)    First, the second appellant did not make a new claim by the giving of her submissions to the Authority.

(b)    Second, nothing in the submissions given to the Authority amounted to “information” so as to be “new information” within s 473DD. To the extent to which the Authority thought that it was being provided with new information, it was not correct.

(c)    Third, to the extent to which the email of 2 November 2016 was relied upon as affording new information, as it was given to the delegate prior to the delegate’s determination and was before her, it could not amount to “new information”.

(d)    Fourth, even if there was a new claim which amounted to new information, the Authority was correct not to consider that there were “exceptional circumstances” which would justify it being considered.

(e)    Fifth, even if the new claim was new information and was required to be considered, the Authority dealt with the claim in any event.

Whether a new claim was made in the submissions

100    Although the appellants submitted the second appellant had made a new claim to the Authority, the arguments relating to it involved a lack of clarity with respect to the expression “claim”. On occasions it was used in the sense that the second appellant was advancing a separate claim as a person to whom Australia owed protection obligations; that is, she was advancing a claim that she was entitled to refugee status and that she was not merely a member of the family unit of a person to whom protection obligations were owed. On other occasions, the word was used in a broader sense, to indicate an assertion or submission that she suffered fear of harm arising from potential sexual abuse or harassment were she to be returned to Sri Lanka.

101    Further, the submissions made on behalf of the second appellant did not make it immediately apparent how it was that the new claim by the second appellant arose from the terms of the submissions sent to the Authority. Reliance was placed on the first paragraph of those submissions which stated:

The delegate has clearly erred in making her decision in that this Applicant, the wife of the main applicant had made her own claims for a Protection visa and in the Form 790B, she had ticked the box “Yes” for the applicant raising their own claims for protection.

(errors in original)

102    To the extent to which it was said that the second appellant had ticked a box indicating that she was making her own claim, that statement was factually incorrect. To the extent to which it suggests that the second appellant made her own claim to the delegate, that was disavowed by Counsel for the appellants, who submitted that the second appellant first made her own claim in those submissions. There is nothing in the terms of that paragraph which suggests that a new claim was being advanced on behalf of the second appellant. It was no more than an erroneous assertion of the effect of the application form.

103    Paragraphs [2] to [11] of the submission were also relied upon, but they equally do not advance any new claim. They concern complaints about procedural fairness and end with the conjecture which appears in paragraph [11].

104    Paragraph [12] of the submissions then reads: “Given this fear of the applicant, we refer you to the following”. Thereafter, reference was made to several pieces of country information concerning Sri Lanka. Most predated the delegate’s decision, and those that did not were unrelated to claims that women in the position of the second appellant were the subject of sexual abuse and harassment.

105    The submissions of the appellants were unable to relate the reference to “this fear” to any particular fear held by the second appellant articulated in either the first appellant’s original statement or the second appellant’s submissions to the Authority. In its context, it may have referred to the fear mentioned in paragraph [11] of the submissions, which was a fear of being stigmatised if the second appellant told her husband that she had been raped or sexually abused, even though there was no evidence that had occurred. It may have been a fear of sexual assault or abuse were she to be returned, although that is pure surmise.

106    There is much force in the Minister’s submission that no new personal claim was being advanced by the second appellant by her submissions given to the Authority. There is no clearly articulated claim and, with the greatest respect to the submissions advanced by Counsel for the appellants, no claim arises inferentially. The submission made to the Authority is little more than an argumentative discourse, seemingly based on a misunderstanding of the appellants’ circumstances, and which occasionally engaged in speculation concerning irrelevant points. Whatever else it might do, it does not advance a new claim on behalf of the second appellant that she actually had a fear of harm from sexual abuse or harassment were she to return to Sri Lanka.

107    It can be accepted that a submission made to an Authority that an applicant actually holds a fear of harm — which was not agitated to the delegate — will amount to “new information”, because it contains a new assertion of fact: FBR18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1620 at [66]-[79] per Farrell J. However, in this case, the submissions of the second appellant to the Authority were so badly drawn and so poorly framed that it is not possible to give the reference to “this fear” any coherent meaning. To do so would be to engage in speculation. It is not possible to reach the conclusion that the words advanced a new claim on behalf of the second appellant.

The new claim did not amount to “new information”

108    Alternatively, the Minister submitted that, if the assertions in the second appellant’s submissions to the Authority amounted to a claim, it did not amount to “new information”. The foundation of that submission was that the issue of the existence of a fear that the second appellant and her daughter were at risk of sexual assault or harassment, were they to return to Sri Lanka, was alive before the Minister’s delegate who considered and dealt with it.

109    In the delegate’s reasons it was identified that the first appellant held these fears for his wife and daughter if they were separated when they were returned. In other words, it was first considered as part of his claims to persecution. The delegate considered the issue in detail and held that the risks to women and girls form sexual abuse or harassment in Sri Lanka were not applicable to persons in the position of the female appellants. It was observed that the second appellant was not a single woman and was not without community support. It was also observed that she had not been sexually assaulted in the past. The delegate then determined that none of the appellants held a well-founded fear of persecution for this reason. In this latter respect it was directing its attention to a personal claim by the second appellant based on the assertions of the risk of sexual violence.

110    It follows that information that the second appellant had a claim to the effect that she and her daughter were at risk of sexual abuse were she to return to Sri Lanka was one which was not only before the Minister’s delegate but was dealt with by her. The finding that she did not have any well-founded fear of harm for this reason tends to support that conclusion.

111    The Minister also submitted that the submissions relied upon by the appellants as advancing a new claim were not “new information”, in the sense that the statements were not in the nature of a communication of knowledge about some particular fact, subject or event: Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217, 228 [24]; DNA17 v Minister for Immigration and Border Protection [2019] FCAFC 146, [31]. As identified previously, the contents of paragraph [11] of the second appellant’s submissions were generally speculative statements about hypothetical scenarios. They contained no imparting of “information” about the second appellant which comes within the meaning of information for the purposes of ss 473DC and 473DD.

112    In the light of the above, it can be safely concluded that the appellants have not discharged the onus of showing that the alleged claim of a fear of harm arising from the sexual abuse or harassment of the second appellant or her daughter was “new information” in respect of which the Authority was required to apply the provisions of s 473DD.

113    Were it necessary to determine, it would be correct to say that the Authority was in error in concluding that the alleged new claim was “new information”. The primary judge determined that it was not and that conclusion appears to be correct.

The email of 2 November 2016 was not new information

114    The appellants also submitted that the email sent by their representatives on 2 November 2016 was “new information” which the Authority ought to have accepted. However, the difficulty with this submission is that the email was sent to the delegate prior to the decision being made. In order for information to be considered as “new information” under s 473DC, it must not have been before the delegate. Here there is nothing to suggest that requirement has been satisfied. The reference in the delegate’s reasons to the evidence in CLF2016/7258 would suggest to the contrary, in that it is apparent that the file relating to the appellants’ applications were considered by the delegate in reaching her decision.

115    Further, the information in the email can be correctly considered as part of the correspondence between the delegate and the appellants which resulted in the conclusion that the second appellant claimed to be a dependant of the first appellant and based her claim on the case advanced by him. It was neither more nor less. The Authority did not turn its mind to whether it constituted new information and it was plainly correct in not doing so.

There were no exceptional circumstances to warrant consideration of the new claim

116    On the assumption the new personal claims of the second appellant constituted “new information”, the next question is whether the Authority failed to correctly determine that there were no exceptional circumstances justifying consideration of that information.

117    To the extent to which the new information was that the second appellant feared harm from sexual assault or abuse, the Authority determined that it was not satisfied that there were exceptional circumstances to justify considering it: see [18] of the reasons which is set out above.

118    The basis of the appellants’ complaint in relation to this is not entirely clear, but appears to be that the Authority only considered that the second appellant and her lawyer were given many opportunities to raise her claims before the delegate’s decision was made and did not do so. That, however, does not accurately describe the Authority’s determination. It had considered the specific circumstances surrounding the inquiry of the second appellant of whether she was making her own claim, that she had not done so, and that she had indicated she was relying on the claims of her husband. It also referred to the unanswered email from the delegate of 3 November 2016. It further described the process which occurred at the interview with the delegate and the opportunity which the second appellant and her adviser had to advance her claim. It was observed that at no time during the interview process did the appellants’ lawyer request that the second appellant be interviewed. It was further observed that, in the three week period after the interview, no post-interview submissions were sent to the delegate. The recitation of those facts appears from [12] to [17] of its decision. The Authority’s consideration of the circumstances was broad and encompassing.

119    The appellants submit that the Authority did not consider, in ascertaining whether there were exceptional circumstances, that the information was credible personal information which was not previously known and had it been known may have affected a consideration of the claim. The factual accuracy of that submission is not without some doubt. The Authority’s conclusion for rejecting the information is brief and general, but it must be kept in mind that it had no obligation to provide reasons for its determination as to whether information obtained by it or given to it was “new information”: BVD17 v Minister for Immigration and Border Protection (2019) 93 ALJR 1091, 1100 [40]. It may well be that the Authority identified its main concern as to why there were not exceptional circumstances and, from an objective point of view, the persistent failure of the appellants to advance the second appellant’s claim was necessarily a substantial matter. It does not follow, however, that it did not consider other matters. In this respect, Mr Johnson SC for the Minister referred to the decision of the majority in Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 at 185-186 [25], concerning the manner in which reasons of a decision-maker should be considered where there is no duty to give reasons:

It is well settled that in the context of administrative decisionmaking, the court is not astute to discern error in a statement by an administrative officer which was not, and was not intended to be, a statement of reasons for a decision that is a broad administrative evaluation rather than a judicial decision. It is possible that error of law on the part of the Delegate might be demonstrated by inference from what the Delegate said by way of explanation of his decision; but it must be borne in mind that the Delegate was not duty-bound to give reasons for his decision, and so it is difficult to draw an inference that the decision has been attended by an error of law from what has not been said by the Delegate. Further, “jurisdictional error may include ignoring relevant material in a way that affects the exercise of a power”; but here the plaintiff does not show that relevant material was ignored simply by pointing out that it was not mentioned by the Delegate, who was not obliged to give comprehensive reasons for his decision. Further, the Delegate’s letter is “not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed”

(footnotes omitted)

120    Those observations are applicable in the present case. Although the Authority explained why it considered that there were not exceptional circumstances justifying the admission of the alleged “new information”, it is apparent that the explanation was brief, and there is no indication that the matters referred to were its only considerations. Indeed, there is force in the Minister’s submissions that the matters considered by the Authority did take into account the substance of s 473DD(b)(i) by considering the evidence that was also relevant to whether the claims could have been advanced to the Minister. It is unclear that the Authority turned its mind to whether or not the evidence was credible personal information.

121    It follows that the appellants have not been able to establish whether the Authority failed to take into account any matter which might have affected its decision.

122    Further, even if the matters in s 473DD(b)(ii) were not considered, as the Full Court in AQU17 identified, there is no mandatory obligation on the Authority to consider the circumstances pertaining to the matters in sub-paragraph (b) when considering sub-paragraph (a). There is nothing in the circumstances of the present case which demonstrates any error by the Authority by failing to address the matters in sub-paragraph (b) when concluding that exceptional circumstances did not exist for the reception of the alleged new material. No submission was made by the appellants which would identify why, in the circumstances of the present case, it was necessary in the fulfilment of the Authority’s statutory task for it to consider whether the alleged information was unknown credible personal information.

123    It can be added that the material which was said to be “credible personal information” was not identified with any great precision. At best it was a reference to the alleged fear held by the second appellant mentioned in the submissions from the appellants’ representative, however, as has been indicated above, that statement was, in its context, so vague and meaningless that it would be difficult for it to be described as “credible”.

124    It follows that even if the information now relied upon was “new information”, no error has been shown in the Authority’s conclusion that it was not satisfied that there were exceptional circumstances to justify considering it.

The Authority dealt with the new claim in any event

125    It is, perhaps, illustrative of the vagueness of the case as advanced to the Authority that, even though the Authority determined that the new claim advanced on behalf of the second appellant amounted to new information and that there were no exceptional circumstances justifying its reception, it nevertheless considered those claims. That may not be a correct analysis of what the Authority actually did, however, the amorphous and changeable nature of the appellants’ submissions as to what exactly its case was and is has generated that somewhat enigmatic state of affairs.

126    As Mr Johnson SC for the Minister submitted, from [42] of its reasons the Authority set out its consideration of whether the second appellant and her daughter faced a risk of harm from sexual abuse. The Authority considered the country information concerning such abuse and the incidence of sexual assault and rape. However, it concluded that the second appellant was not within that category of persons who might be adversely impacted in that manner. At [47], it concluded:

There are no claims or evidence before me that the second applicant has suffered any threats, harassment, discrimination or violence (other than the claims linked to the primary applicant). While I accept that some Tamil women may face significant challenges and risks of serious harm, the country information (including the most recent United Nations information) indicates that these risks are greater for women who are not supported by partners or family. I take into account that the second applicant is not a war widow, household head or internally displaced person. There are no claims or evidence before me that she has been involved in any activism, truth-seeking or similar activities. I also note that if she were to return to Sri Lanka, she will be returning with the primary applicant, as part of the primary applicant’s family unit and to her community. I am satisfied that the second applicant does not face a real chance of serious harm on the basis of her gender.

127    The last sentence demonstrates the Authority turned its mind to the nature and extent of any risks which might have been faced by the second appellant and, in particular, by reference to the possibility of her being sexually assaulted. In context, the reference to harm on the basis of gender was a reference to sexual assault or harassment.

128    It follows that the Minister’s submission that the Authority considered and dealt with the alleged new “claim”, that the second appellant had a well-founded fear of harm based on the incidence of sexual assault or harassment in Sri Lanka, should be accepted. Even if some error was shown to have existed in the Authority’s alleged conclusion that the second appellant’s new claim was “new information” in respect of which there were no “exceptional circumstances”, any such error would not be material because there was no possibility of a different result were the error not to have been made: Minister for Immigration and Border Protection v SZMTA (2019) 163 ALD 38 at [45].

Conclusion

129    The necessary conclusion from the above is that the submissions advanced by the appellants cannot be sustained. There was no error in the Authority not being satisfied of the existence of exceptional circumstances to justify receiving the asserted new information. There was also no error by the primary judge in determining that the assertions did not amount to “information”.

130    No error has been shown to exist in the determinations of the primary judge, and the appeal must be dismissed. The appellants must pay the first respondent’s costs.

Associate:    

Dated:    25 November 2019