Federal Court of Australia

ELQ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 27

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The Appellant pay the Respondents’ costs of and incidental to the appeal.

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

REASONS FOR JUDGMENT

The court:

Background

1    The Appellant was born in 1980 and is a Hindu male of Tamil ethnicity from an Eastern Province of Sri Lanka. The Appellant fled to India in 1990 and remained in India until he departed illegally on 19 October 2012. The Appellant arrived in Australia on 5 November 2012 and lodged an application for a Safe Haven Enterprise Visa (protection visa) on 15 April 2016. In summary, the Appellant’s claims to protection were based on his Tamil ethnicity; a fear that Sri Lankan authorities might impute that he was involved in, or supportive of, the Liberation Tigers of Tamil Ealam (LTTE) because of his uncle’s involvement with the LTTE; and his treatment, if he were to be returned to Sri Lanka, as a failed Tamil asylum seeker who departed illegally.

2    A delegate of the Minister for Immigration and Border Protection refused to grant the protection visa on 14 February 2017. That decision was affirmed by the Immigration Assessment Authority on 31 August 2017. The Appellant sought judicial review of the Authority’s decision in the Federal Circuit Court. That application was dismissed by the primary judge on 27 February 2020. By an amended Notice of Appeal filed on 10 July 2020, the Appellant raised two grounds of appeal in this Court.

3    The first ground of appeal is that the primary judge erred in failing to find that the Authority misconstrued the “exceptional circumstances” test in s 473DD(a) of the Migration Act 1958 (Cth). This ground focuses on the Authority’s conclusion that there were exceptional circumstances to justify considering a 2017 Report from DFAT (New DFAT Report) but not information that purportedly contradicted or qualified that report (DFAT Rebuttal). The DFAT Rebuttal material was referred to by the primary judge as the ‘July submissions’ and comprised summaries of general country information prepared by the Appellant’s lawyers in July 2017.

4    The second ground of appeal is that a reasonable observer might have apprehended that the Authority did not bring an impartial mind to the matter given the differential treatment of the New DFAT Report and DFAT Rebuttal material. The Appellant submitted that the apprehended bias ground was an analytical framework through which the Court could examine whether the Authority’s decision to consider the New DFAT Report, but not the DFAT Rebuttal information, was a jurisdictional error. In recognition of the somewhat tenuous foundation for this argument, the second ground of appeal was abandoned by the Appellant during the course of the hearing. Accordingly, no further consideration of that ground is necessary.

Ground one

Relevant principles

5    Part 7AA of the Act confers jurisdiction on the Authority to review a "fast track reviewable decision" referred to it by the Minister where a delegate of the Minister has refused to grant a protection visa to the "referred applicant" under s 65. The Authority is required by s 473DB to perform that duty by "considering" the "review material" provided to it by the Secretary of the Department of Immigration and Border Protection at the time of referral "without accepting or requesting new information", save to the extent that the Authority "gets" new information from the referred applicant or some other person under s 473DC and goes on to "consider" that new information under s 473DD.

6    The expression “new information” is defined in s 473DC of the Act as being any document or information that (a) was not before the Minister when the Minister made the decision under section 65 and (b) which the Authority considers may be relevant. Information is relevant if it is capable of rationally affecting the Authority’s assessment of the probability of the existence of some fact about which it might be required to make a finding about in its decision on the review: Minister for Immigration and Border Protection v CED16 [2020] HCA 24; 94 ALJR 706 at [23] (Gageler, Keane, Nettle and Gordon JJ).

7    Section 473DD relevantly provides:

Considering new information in exceptional circumstances

For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

(a)     the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

(b)     the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

(i)     was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

(ii)     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.

8    In the recent decision of AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; 94 ALJR 1007, the High Court clarified the proper construction and operation of s 473DD of the Act. At [6]-[8], Kiefel CJ, Gageler, Keane and Gordon JJ stated:

6. Though expressed to prohibit the Authority from considering new information if the criteria it specifies are not met, s 473DD necessarily operates against the background of s 473DB also to empower the Authority to consider new information if the criteria it specifies are met. For that binary outcome of the application of s 473DD to be workable, s 473DD must be construed to impose a duty on the Authority to assess new information that it has got against the specified criteria. Having performed that duty to assess the new information against the specified criteria, the Authority must take that new information into account in making its decision on the review if those criteria are met and must not take that new information into account in making its decision on the review if those criteria are not met.

7. The criteria that must be met if the Authority is to take new information that it has got into account in making its decision on the review vary according to the provenance of the new information that has been obtained by the Authority. All new information is required to meet the criterion specified in s 473DD(a) that the Authority is satisfied of the existence of "exceptional circumstances" justifying its consideration of that new information.

8. New information obtained from the referred applicant is required to meet at least one of the additional criteria specified in s 473DD(b). The additional criterion specified in s 473DD(b)(i) is met if the referred applicant satisfies the Authority that the new information meets the bipartite description of information that was not before the Minister at the time of making the referred decision and that could not have been before the Minister at the time of making the referred decision. The additional criterion specified in s 473DD(b)(ii) is met if the referred applicant satisfies the Authority that the new information meets the tripartite description of "credible personal information", that was not previously known, and that may have affected consideration of the referred applicant's claims to be a person in respect of whom Australia has protection obligations if it had been previously known.

[footnotes omitted]

9    Their Honours added at [10]-[12]:

10. Section 473DD would be at war with itself, and the purpose of s 473DD(b)(ii) would be thwarted, if the circumstance that there was new information from a referred applicant meeting the description in either s 473DD(b)(i) or s 473DD(b)(ii) were able to be ignored by the Authority in assessing the existence of exceptional circumstances justifying consideration of that new information in order to meet the criterion specified in s 473DD(a).

11. Logic and policy therefore demand that the Authority assess such new information as it might obtain from the referred applicant first against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and only then against the criterion specified in s 473DD(a). If neither of the criteria specified in s 473DD(b)(i) and s 473DD(b)(ii) is met, the Authority is prohibited from taking the new information into account in making its decision on the review. Further assessment of the new information against the criterion specified in s 473DD(a) is redundant. If either the criterion specified in s 473DD(b)(i) or the criterion specified in s 473DD(b)(ii) is met, that is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a). If both the criterion specified in s 473DD(b)(i) and the criterion specified in s 473DD(b)(ii) are met, that too is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a) and which must heighten the prospect of that criterion being met.

12. The result, as has been recognised by the Federal Court in numerous other cases, is that the Authority does not perform the procedural duty imposed on it by s 473DD in its conduct of a review if it determines in the purported application of the criterion in s 473DD(a) that exceptional circumstances justifying consideration of new information obtained from the referred applicant do not exist without first assessing that information against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and then taking the outcome of that assessment into account in its assessment against the criterion specified in s 473DD(a). The nature of the non-performance of the procedural duty in such a case is not inaccurately characterised as a failure to take account of a mandatory relevant consideration in the purported application of the criterion in s 473DD(a).

[footnotes omitted]

10    The above reasoning requires, analytically, that the Authority first consider whether any, either or both the criteria in s 473DD(b) are satisfied and, if so, take that into account in assessing whether the “exceptional circumstances” test in s 473DD(a) is satisfied. The effect of this is that the “exceptional circumstances” test in s 473DD(a) of the Act does not operate in a vacuum and is, as a matter of policy and logic, informed by the criteria in s 473DD(b) of the Act (see also the observations of the Full Court of this Court in BXT17 v Minister for Home Affairs [2021] FCAFC 9 at [108]-[119] (Markovic, O'Callaghan and Anastassiou JJ)). Notwithstanding, it is apparent from the structure and wording of the provision that the criterion in s 473DD(a) necessarily has some independent operation and must be separately satisfied.

11    In this respect, it has been earlier observed by the High Court that the phrase “exceptional circumstances” takes its ordinary, broad meaning: Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 264 CLR 217 at [30] (Gageler, Keane and Nettle JJ). However, precisely what will amount to exceptional circumstances is “inherently incapable of exhaustive definition”: Plaintiff M174/2016 at [30] (Gageler, Keane and Nettle JJ).

12    There are a great number of authorities which have considered what might constitute exceptional circumstances for the purposes of s 473DD(a): see, eg, DYS16 v Minister for Immigration and Border Protection [2018] FCAFC 33; 260 FCR 260 at [30]-[34] (Tracey, Murphy and Kerr JJ) and AAL19 v Minister for Home Affairs [2020] FCAFC 114 at [43]-[44] (Logan, Markovic and Anastassiou JJ). It has been held, for instance, that exceptional circumstances include those which are “unusual or out of the ordinary”, and justify the new information being considered by the Minister: Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; 257 FCR 111 at [104] (Kenny, Tracey and Griffiths JJ). Exceptional circumstances also encompass circumstances which may be constituted as special in a particular case by reason of their weight, quality or a combination of such related factors: BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958; 254 FCR 221 at [39]-[43] (White J).

13    In any event, given that the precondition for the consideration of new information is being ‘satisfied’ of the prescribed matters in subsections (a) and (b), it is clear that the Authority is required to make an “evaluative judgment”: DYS16 at [17] (Tracey, Murphy and Kerr JJ). That is a question over which reasonable minds might differ: EHF17 v Minister for Immigration and Border Protection [2019] FCA 1681; 272 FCR 409 at [67] (Derrington J). While the evaluative judgment is not beyond review by the Court, a “principled restraint must be adopted, lest the proper role of a reviewing court … be exceeded”: AAL19 at [49] (Logan, Markovic and Anastassiou JJ).

14    It is against this established set of principles that we consider the Appellant’s submission that the primary judge erred by misconstruing the term “exceptional circumstances”.

Appellant’s submissions

15    The Appellant’s contention in respect of ground one was summarised as follows at [7] of his written submissions:

…the IAA, in forming its subjective opinion that there are ‘exceptional circumstances’ justifying consideration of the New DFAT Report, was required to do so on a correct understanding of the law. If that was done, the Appellant says that the IAA could not have lawfully arrived at the opposite opinion in respect of the DFAT Rebuttal, given the nexus between the two. The differential treatment must necessarily be a product of a misunderstanding of the law, and specifically, of the term ‘exceptional circumstances’.

[footnote omitted]

16    The essence of the Appellant’s case is that the Authority misunderstood the “exceptional circumstances” test in s 473DD of the Act because it did not understand that the rebuttal character of new information was a consideration that needed to be taken into account. The Appellant submitted that because the DFAT Rebuttal material was provided in anticipation of the New DFAT Report, that was a consideration which supported the existence of exceptional circumstances as required by s 473DD(a) of the Act.

17    The Appellant further submitted that the Authority’s reasons did not demonstrate an ‘active intellectual process’ because the Authority did not grapple with the differential treatment of the New DFAT Report and the DFAT Rebuttal material, nor with the rebutting purpose of the DFAT Rebuttal. In support of this proposition, the Appellant relied on Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110; 264 FCR 249 at [39] (McKerracher, Murphy and Davies JJ), in which the Full Court of this Court distinguished between merely restating that new information existed, as opposed to giving real consideration to that new information, in the sense of engaging in an ‘active intellectual process’.

18    The Appellant submitted that in demonstrating the Authority had failed to form the requisite state of satisfaction under s 473DD, it was permissible to take an outcome-focused approach to that enquiry. In particular, the Appellant relied on the following passage of Dixon J in Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; 78 CLR 353 at 360:

… 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.

19    The Appellant’s submission, in this respect, was that there must have been a misunderstanding of law because the same considerations applied to the New DFAT Report (which was accepted) and the DFAT Rebuttal (which was rejected). That supposed dissonance between the approach taken to the New DFAT Report and the DFAT Rebuttal material was at the heart of the Appellant’s case.

Minister’s submissions

20    The Minister submitted that the Appellant is unable to identify any passage in the Authority’s reasons that shows it misdirected itself as to the construction of s 473DD(a): see, eg, DYS16 at [27] (Tracey, Murphy and Kerr JJ). Instead, the Appellant merely invites the Court to infer that the Authority must have misdirected itself as to the meaning of the expression “exceptional circumstances” in a general and unspecified way.

21    The Minister also submitted that this contention must be rejected on the basis that it was open to the Authority to make the evaluative judgment it did; namely, that there were exceptional circumstances to justify considering the New DFAT Report but not the DFAT Rebuttal material. He submitted that this approach was both intelligible and nuanced, having regard to the following considerations:

(1)    the New DFAT Report contained updated, credible and relevant information that was relevant to the assessment of the Appellant’s claims;

(2)    by contrast, the DFAT Rebuttal material was merely general country information, of which the Authority already had ample; and

(3)    the sources and probative weight of the information in the DFAT Rebuttal material was unnecessarily duplicative of the material already before the Authority.

22    The Minister submitted that, in truth, the Appellant’s criticism of the Authority’s approach involved a quarrel with the evaluative judgment that the Authority formed. Accordingly, there was no proper basis for this Court to infer that the Authority misunderstood the expression “exceptional circumstances” in s 473DD(a) of the Act.

Authority’s reasons

23    On 31 August 2017, the Authority affirmed the decision of the Minister to refuse the Appellant’s application for a protection visa. The Authority provided reasons for so doing, which included identifying the material that was before it for consideration. That section of the Authority’s reasons is extracted in full below.

Information before the IAA

4. I have had regard to the material given by the Secretary under s.473CB of the Migration Act 1958 (the Act).

5. The applicant’s migration lawyer provided a submission to the Immigration Assessment Authority (IAA) on 17 March 2017. This submission attaches a statutory declaration of the applicant and five documents. The submission refers to claims and issues that were before the delegate and I am satisfied that it is not new information. One of the attached documents is a link to a television news programme that was before the delegate and is not new information. The statutory declaration and the remaining four documents were not before the delegate.

6. The statutory declaration claims that two of the delegate’s findings are factually wrong, due to misunderstanding or comprehension problems at the interview with the delegate on 4 November 2016 (the interview). I have listened to the interview and I am satisfied that these are misunderstandings and that they did not become apparent until the applicant received the decision record. I am satisfied that this information could not have been provided to the Minister before the decision was made. I am satisfied that the factual findings are directly relevant to the applicant’s claims and there are exceptional circumstances to justify considering this new information.

7. The remaining five documents are:

•    Two medical reports relating to the applicant’s mental health, anxiety and depression. These documents are both dated 1 February 2017 and thus pre-date the decision. I am satisfied that these reports are new information. I am also satisfied that these reports contain credible personal information which was not previously known and, had it been known, may have affected the consideration of the applicant’s claims. I take into account that the applicant was not represented at the interview and the audio recording of the interview demonstrates that the applicant was significantly distressed at different times. I am satisfied that there are exceptional circumstances to justify considering these medical reports.

•    A country report on human rights practices from the United States Department of State (USDOS), for the year 2016. It is new information. This report was published on 3 March 2017 and I am satisfied that it could not have been provided to the Minister before the decision was made. The delegate had regard to an earlier version of this report but I consider that the 2016 report contains more up to date and relevant information. I am satisfied that there are exceptional circumstances to justify considering this information.

•    Two documents relating to refugee law in India and exit permit procedures in Tamil Nadu. The documents explain the general procedures and requirements for refugees who wish to leave India but they do not relate to the applicant personally or refer to immigration law in Sri Lanka. For the reasons I give below, I have not drawn any adverse conclusions from the applicant’s departure from India and, given he cannot be returned to India, these documents are not otherwise relevant to his application. I consider that pursuant to s.473DC(1), the documents are not relevant and I have not considered them.

8. The applicant’s lawyer provided three further documents in July 2017. The first document is a report from the International Truth and Justice Project (ITJP) into torture in Sri Lanka, dated 14 July 2017. This report was not before the delegate and is new information, but as it postdates the decision, I am satisfied that it could not have been provided before the decision was made. While the delegate did consider an earlier report from the ITJP, I consider that the 2017 report contains more up to date and relevant information. I am satisfied that there are exceptional circumstances to justify considering this information.

9. The remaining two documents appear to have been prepared by the lawyer and contain summaries of general country information from a variety of sources. These were not before the delegate and are new information. As I have noted above, the applicant was not represented at the interview and the lawyer did not start acting for the applicant until after the decision was handed down. I accept that as these documents were prepared by the lawyer, they could not have been provided to the Minister before the decision. However, the documents contain general country information that is not specific to the applicant or his claims.

10. The applicant has submitted that the information “clearly shows that the situation in Sri Lanka, contrary to the 2017 DFAT report which the Department most heavily relies on are not entirely accurate”. I note firstly that the delegate in this case considered the Department of Foreign Affairs and Trade (DFAT) country information report dated 18 December 2015. Although DFAT released an updated version of the country information report on 24 January 2017, this was not before the delegate at the time of the decision. For the reasons I set out below however, I have considered part of the 2017 DFAT report and on that basis, I have considered the applicant’s submission re the DFAT reports.

11. Both versions of the DFAT report note the following at their commencement:

This report is based on DFAT’s on-the-ground knowledge and discussions with a range of sources in Sri Lanka, including Colombo, Jaffna and Kilinochchi. It takes into account relevant and credible open source reports, including those produced by the UK Foreign and Commonwealth Office, the US Department of State, the World Bank, the International Organisation for Migration; those from relevant UN agencies, including the Office of the United Nations High Commissioner for Refugees, the United Nations Office on Drugs and Crime, the United Nations Children’s Fund, and the United Nations Development Programme; recognised human rights organisations such as Human Rights Watch and Amnesty International; Sri Lankan non-governmental organisations and reputable news organisations. Where DFAT does not refer to a specific source of a report or allegation, this may be to protect the source.

12. On the basis of the wide-ranging and divergent sources available to DFAT, I am satisfied that the DFAT reports can be regarded as reliable sources of evidence, but in any event there is also a significant amount of other country information in the material, including recent governmental, non-governmental and media reporting. Having regard to the amount of information already in the material, the sources and probative weight of that information and the fact that this new information is general country information, I am not satisfied that there are exceptional circumstances to justify considering the new country information provided by the applicant’s lawyer.

13. The submission contains a request for a ‘hearing’ if the IAA cannot make a positive decision in relation to the applicant’s claims about his uncle’s circumstances. Section 473DB of the Act provides that subject to Part 7AA, the IAA must review decisions on the papers without interviewing the applicant. Section 473DC also provides that the IAA does not have a duty to get, request or accept any new information, whether the IAA is requested to do so by an applicant or in any other circumstances. The IAA may only consider new information in limited circumstances. Furthermore, there is no statutory entitlement to a hearing. For the reasons given further below, I have accepted the applicant’s claims in relation to his uncle’s involvement with the LTTE and mental health, and I am not satisfied that an interview is necessary or required in the circumstances.

14. As noted above, the 2017 DFAT report is new information. I consider DFAT to be an authoritative source of country information and as its January 2017 report supplements the December 2015 report, I am satisfied that there are exceptional circumstances to justify considering this new information. I have considered s.473DE which provides that the IAA must give the applicant particulars of any new information if that new information would be the reason, or part of the reason, for affirming the decision. However, this requirement does not apply to information that is not about the applicant specifically and is just about a class of persons of which the applicant is a member. From the 2017 report I have obtained new information regarding Sri Lankan citizens who are returning as returned asylum seekers and/or those who departed Sri Lanka illegally. This information is not specifically about the applicant and is just about a class of persons of which the applicant is, or looking forward should he return to Sri Lanka, will be, a member. I also note that the information relating to the treatment of returned asylum seekers in the 2017 report is substantially the same as the information that was in the 2015 report.

[footnotes omitted]

Supplementary submissions

24    On 14 October 2020, the High Court handed down judgment in AUS17 and ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; 94 ALJR 928. On 23 November 2020, having regard to the potential relevance of those authorities to the present appeal, we directed that each party provide short submissions, not exceeding three pages in length, in relation to the impact, if any, of those decisions in relation to ground one of the amended Notice of Appeal. The parties made submissions that AUS17 was directly relevant to the appeal, though no submissions were advanced in respect of ABT17.

25    On 4 December 2020, the Appellant submitted that the Authority plainly did not take into account its assessment under s 473DD(b)(i) – that the information was not, and could not have been, provided to the Minister – when evaluating whether there were exceptional circumstances to justify considering the new information under s 473DD(a). He submitted that merely because the Authority accepted the fact that “the documents could not have been provided to the Minister before the decision”, that did not permit a reflexive conclusion that when the IAA came to consider s 473DD(a), it took the conclusion as to s 473DD(b)(i) into account: see, eg, SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9 at [26] (Stone J).

26    On 14 December 2020, the Minister accepted that it had misunderstood, and incorrectly articulated in its written submissions, the test to be applied under s 473DD of the Act. Nonetheless, the Minister submitted that there was no jurisdictional error by the Authority.

27    First, the Minister emphasised that the Authority’s reasoning conformed with the guidance of the High Court. The Authority, logically, considered whether the DFAT Rebuttal satisfied either or both the criteria in s 473DD(b) (at [9] of its reasons) and factored that into its subsequent assessment (at [12] of its reasons) that there were not “exceptional circumstances” to justify considering the new information. In this respect, the Minister directed attention to the remarks of Gleeson CJ in Re Minister for Immigration and Multicultural Affairs; Ex parte S20/2002 [2003] HCA 30; 77 ALJR 1165 at [14]:

Decision-makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from others. Ordinarily, they review the whole of the evidence, and consider all issues of fact, before they write anything. Expressions of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole …

28    Further, the Minister submitted that even if the Authority did err, that was not material because there is no realistic possibility that the assessment under s 473DD(a) of the Act would have been any different even if the Authority had regard to the DFAT Rebuttal material: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 at [29]-[31] (Kiefel CJ, Gageler and Keane JJ).

29    On 18 December 2020, in reply, the Appellant addressed only the issue of materiality, submitting that it was an argument not previously raised by the Minister. The Appellant further submitted that, in any event, the Court should await the decision of the High Court in MZAPC v Minister for Immigration, a matter challenging the orthodoxy of the materiality doctrine: see MZAPC v Minister for Immigration and Border Protection [2020] HCATrans 113, lines 63-67. For reasons explained below, we do not consider that necessary, as we have not decided the case on the basis that materiality is a precondition for jurisdictional error.

Consideration

30    It has been repeatedly said that this Court should not construe the reasons of administrative decision-makers minutely “with an eye keenly attuned to the perception of error”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ). For the reasons that follow, we consider that is precisely what the Appellant has done. This is particularly so when regard is had to [9]-[14] of the Authority’s reasons, extracted above at [23].

31    The Authority’s reasons fairly read make it apparent that the Authority engaged in an evaluative judgment of both the New DFAT Report and DFAT Rebuttal. It is clear from both the first and last sentence of [10] of the Authority’s reasons that the Authority appreciated the rebuttal character of the material and took that consideration into account. That supports the proposition that the Authority was engaged in an active intellectual process and appreciated that the rebuttal character of the new information was a consideration to be taken into account in determining whether there were exceptional circumstances.

32    Properly read in context, and notwithstanding the rebuttal character, the Authority then reached the view that the DFAT Rebuttal material simply contained lawyer-prepared ‘summaries’ of further country information, which were similar to, and unnecessarily duplicative of, the material which the Authority already had before it (see particularly the final sentence of [12] of the Authority’s reasons). The Authority took into account the amount of information already available, the sources and probative weight of the existing information, and that the DFAT rebuttal material was general country information, and was not satisfied there were exceptional circumstances (see also the final sentence of [9] of the Authority’s reasons).

33    That reasoning process was both intelligible and consistent with the evaluative judgment contemplated by the statutory framework. In substance, the Appellant’s objections are as to the evaluative judgment formed – not whether that assessment was formed at all or whether it took into account the rebuttal nature of the DFAT Rebuttal material. But that is beside the point. The legislature has reposed in the Authority some latitude to determine whether there are exceptional circumstances to justify considering new information and mere disagreement with the evaluative judgment formed does not constitute a jurisdictional error.

34    The supplementary submissions filed pursuant to the direction we made on 23 November 2020 do not warrant a different conclusion. The reasoning process of the Authority, and the manner in which it considered whether there were “exceptional circumstances” under s 473DD(a), reveal that although the criteria in 473DD(b)(i) had been satisfied, that alone was insufficient given the DFAT Rebuttal material was not credible personal information, and was merely information of a general nature (which the Authority already had an abundance of). We do not accept that the Authority’s assessment of s 473DD(a) was “logically distinct” from its consideration of s 473DD(b). To the contrary, we consider the Authority’s reasoning in respect of s 473DD to be consistent with the later guidance of the High Court in AUS17.

Disposition

35    For the reasons set out above, the Appellant has not established any error by the primary judge and accordingly the appeal must be dismissed with costs.

Associate:

Dated:    5 March 2021