FEDERAL COURT OF AUSTRALIA

EBO17 v Minister for Immigration and Border Protection [2018] FCA 1227

ORDERS

THE COURT ORDERS THAT:

1.    Leave is granted to the appellant to file the “Further Amended Notice of appeal from the Federal Circuit Court of Australia” dated 8 August 2018.

2.    Leave for the appellant to rely on the grounds of appeal set out in the “Further Amended Notice of appeal from the Federal Circuit Court of Australia” dated 8 August 2018 is refused.

3.    The appeal is dismissed.

4.    The appellant pay the costs of the first respondent, as agreed or assessed.

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

REASONS FOR JUDGMENT

ROBERTSON J:

Introduction

1    This appeal is from orders made by the Federal Circuit Court of Australia on 26 February 2018. By those orders the appellant was granted leave to rely on his amended application dated 26 February 2018 but the amended application was dismissed, with costs.

2    The appellant arrived in Australia by boat on 22 March 2013 and he was given an entry interview on 28 March 2013. On 19 May 2016 the appellant lodged an application for a Temporary Protection visa (TPV). A delegate of the Minister for Immigration and Border Protection (the delegate) refused to grant the visa on 9 November 2016, and the Department of Immigration and Border Protection (the Department) referred the matter to the Immigration Assessment Authority (the Authority) on 16 November 2016.

3    On 18 August 2017, the Authority affirmed the decision not to grant the appellant a TPV.

4    The appellant is a national of Pakistan, a Shia Muslim, and an ethnic Pashtun who originated from the Pesh-e-Imam neighbourhood of Parachinar city in the Kurram Agency. He claimed to fear harm from the Taliban due to his religion, his ethnicity, as a returnee from a Western country, and because of his association with a group working against the Taliban.

The decision of the Authority

5    The Authority, at [7], said that it had obtained new information about Shia Muslims in Pakistan and about Shia Muslims from Parachinar and Upper Kurram specifically. All of this information was published after the date of the delegate’s decision and, given this, and given that the information provided updated information about the developing situation in Pakistan for Shia Muslims, and for Shia Muslims from Parachinar and Upper Kurram specifically, the Authority was satisfied that there were exceptional circumstances to justify considering this information.

6    The Authority, at [8], summarised the appellant’s claims as follows:

•    From 2008 to 2009 he was studying pre-engineering in Peshawar with a view to matriculating to university. He resided at a Peshawar student hostel with other Parachinar Shia students and in May 2008 one of his friends from the hostel was found dead in Peshawar having been shot by unidentified men. After this the applicant and some other students began to receive threating telephone calls. The hostel frequently received letters from the Taliban threatening the Parachinar Shia students who stayed there. He claims that in November 2009 his uncle was abducted from Peshawar while they were shopping together and that his uncle’s kidnappers subsequently informed the applicant that he (the applicant) had been their target. The applicant returned to Parachinar where he received several further threatening telephone calls from his uncle’s abductors. The applicant suspects that the perpetrators were either the Taliban and/or Sunni Muslims who had to leave Parachinar in 2007. He considers that he was targeted because he was a Parachinar Shia pursuing higher education.

•    In May/June 2010 the applicant began to drive a taxi within Parachinar in Shia areas, and sometimes he supported the Haidari Blood Bank group by driving employees around to different areas for blood donation. Some time at the end of 2010 he received threatening calls from the Taliban. They told him that he was supporting the Shia community by supporting the medical system for Shias and that he was on their target list to kidnap and kill. His life was in danger because they would kill him as an infidel, and at this time they were targeting all who were supporting the Shia community. He considers that he may also have been targeted because he came from a wealthy family and his father was a famous and prominent elder.

•    He decided to leave the country and in February 2011 he travelled to the United Arab Emirates (UAE) where he worked as a taxi driver until early January 2013, when he was deported from the UAE with many other Shia Muslims. He was too scared to return to Parachinar other than to briefly visit his family, and was too scared of the Taliban to continue living there. He went to Islamabad and departed from the Islamabad airport on 3 March 2013 with the intention of travelling onward to Australia.

•    He fears that he will suffer the same fate as his kidnapped uncle. He fears sectarian groups like the Taliban, and Lashkar-e-Jhangvi (LeJ), and Islamic State (or ISIS) which have threatened and perpetrated attacks against Shia Muslims throughout the country. He also fears Sunni Muslims who have been displaced from Parachinar and who are now working with these groups and who will target him as a Shia Muslim from Parachinar. He also fears that he will be targeted by these actors because he was a Shia Muslim pursuing higher education, from a wealthy family, whose father was a famous and prominent elder. He also fears that if he returns to Pakistan he will suffer persecution and serious harm as a returnee from Australia who will be treated as an infidel and a spy for westerners and Australians, and would be an easy target for the Taliban. The Pakistan army commanders work in collusion with the Taliban and the police are too scared of the Taliban to take action.

7    At [31], the Authority said:

Although I accept that the applicant’s life was threatened in 2009 in the course of telephone negotiations with kidnappers over the price of releasing the applicant’s uncle, who was abducted in Peshawar, no harm ever came to the applicant in Parachinar on this basis over the subsequent year and given that some eight years have now passed, I am not satisfied that there is a real chance that these kidnappers would seek to harm the applicant within the foreseeable future if he were to return to Parachinar, or anywhere else in Pakistan other than Peshawar. However, given the extent to which Parachinar has been affected by several mass casualty attacks in the recent year, I cannot currently discount the possibility that Parachinar may see several further attacks of this kind within the foreseeable future. Parachinar has a not insubstantial population of some 40,000 persons, the vast majority of which are Shia Muslims, and it is unlikely that the applicant would be so unfortunate as to be seriously harmed by an attack of this kind if he were to return to Parachinar. Even so, given the current security situation in Parachinar I accept that if he were to return and reside in Parachinar for the foreseeable future that there is a small, but nonetheless real, chance of his being killed or seriously injured in an attack of this kind for reason of his being a Shia Muslim.

8    At [32], the Authority said:

Pursuant to s.5J(1)(c), in order for the applicant to be found to have a well-founded fear of persecution, the real chance of harm must relate to all areas of Pakistan. At the TPV interview, the delegate asked the applicant there (sic) was anywhere else in Pakistan where he could live safely. The applicant said that there was not because the Sunnis who were displaced from Parachinar were spread out all over Pakistan and working with the Taliban. The applicant had also said that that such displaced Parachinar Sunni Muslims were also working with other groups like Islamic State. He also said that groups like the Taliban and Islamic State and LeJ were active across Pakistan and that he would be immediately identifiable as a Shia Muslim from Parachinar by his accent and the details on his national identity card, and his name. The delegate asked whether, safety aside, there was any other reason why he could not relocate to a place like Lahore or Islamabad. The applicant said there was not.

9    At [35], the Authority said:

I accept that Shias can sometimes be identified through common Shia names, and that the applicant may also be identified as a Shia Muslim by his attendance of Shia mosques. His national identity card and his accent would also indicate his having originated from Kurram and may identify him to others as a Shia from Parachinar, and the assumption that he is a Parachinar Shia Pashtun of either the Turi or the Bangash tribe. Like other Parachinar, and Upper Kurram, Shias living in Islamabad the applicant would be identifiable to others in this way. Even so, and although I accept that the applicant’s life was threatened by his uncle’s Peshawar kidnappers in 2009, I do not accept that the applicant is currently (sic) any specific interest to these persons, or to any Sunni Muslims who have been displaced from Parachinar or Upper Kurram, or to the Taliban or any other extremist group such as LeJ or Islamic State. The applicant is not a community leader or a prominent high profile professional, and even if he were to resume his studies in engineering the possibility that this would lead to his becoming a high-profile professional is too speculative. While there have been occasional reports of the kidnapping of wealthy migrants from tribal areas, and while the applicant’s family is wealthy, the evidence does not indicate that there is a significant trend of such abductions, and Islamabad generally sees little crime or violence from insurgent attacks of a more general nature. While I accept that there likely is a significant community of displaced Parachinar Sunni Muslims living in Islamabad, and while Sunni extremist groups like the Taliban and LeJ and Islamic State have undertaken operations in Islamabad or its surrounding areas, the evidence does not satisfy me that a person of the applicant’s circumstances would face harm of any kind in Islamabad.

(Footnote omitted.)

10    Having found, at [37], that the appellant did not meet the requirements of the definition of refugee in s 5H(1) of the Migration Act 1958 (Cth) and did not meet s 36(2)(a), the Authority turned to consider complementary protection.

11    At [40], the Authority accepted that if the appellant were to return and reside in Parachinar for the foreseeable future there was a small, but nonetheless real, chance of his being killed or seriously injured. The Authority was therefore satisfied that if the appellant were to return and reside in Parachinar for the foreseeable future there was a real risk of his being killed or seriously injured, and was satisfied that this amounted to his facing a real risk of significant harm in his home area of Parachinar. However, the Authority continued at [41]-[42]:

… pursuant to s.36(2B) of the Act there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm, and for the reasons already given above I am not satisfied that the applicant would face a real risk of suffering harm of any kind if he were to return to and reside in Islamabad, a location he could return to directly by air. I am therefore not satisfied that the applicant would face a real risk of significant harm in Islamabad.

As for the question of whether it is reasonable for the applicant to relocate to Islamabad, at the TPV interview the applicant was asked whether, the issue of safety aside, there was any other reason why he could not relocate to a place like Lahore or Islamabad. The applicant said there was not. DFAT has observed that Shias relocate with relative ease and frequency because of family and communal networks throughout Pakistan. Although there is no information on the extent of Bangash Shia communal networks in Islamabad specifically, there is a significant population of Shia Muslims who have migrated from Kurram, including those from Parachinar’s predominant Turi tribe with whom the Shia Bangash are closely associated. Cities like Islamabad provide greater access to employment, education and health care services, and Turi migrants in Islamabad have told DFAT these factors were central to their decision to relocate from Kurram Agency. Although more expensive to reside in than in rural areas, such expenses are to some extent offset by higher wages paid in large urban centres, particularly for those with relevant skills, including foreign language and computer skills; and the applicant is literate in English and well-educated. Migrant communities also provide support networks which can help alleviate higher living costs in these areas. Although the applicant has no family in Islamabad he is a single able-bodied man without dependents who has demonstrated his capacity to live apart from his family in Peshawar, the UAE and Australia. Although his only previous work experience is that of working as a taxi driver in the UAE, he is nonetheless well-educated and literate in Urdu and English, and he has the backing of a wealthy family and may choose to pursue employment as a taxi driver, or in Islamabad’s extensive public sector, or he may choose to continue his education in engineering at one of Islamabad’s universities. I consider it significant that, safety issues aside, the applicant himself did not consider that he would face any problems in relocating to a place like Islamabad.

(Footnote omitted.)

12    The Authority therefore did not accept that the appellant would face a real risk of harm of any kind in Islamabad and, having regard to his overall circumstances, including the overall livelihood and security situation in Islamabad, the Authority was satisfied that it would be reasonable for the appellant to relocate to Islamabad, an area of the country where there would not be a real risk that he will suffer significant harm.

13    Also relevant, as will later appear, is a reference in [16] of the Authority’s reasons to a May 2008 Dawn news article dated 9 May 2008, which the Authority said the appellant provided to it, a reference in [28] of those reasons to a Jaffria News article dated 12 May 2012, and a reference in [29] of those reasons to a Newsweek article dated 27 July 2013.

Proceedings in the Federal Circuit Court of Australia

14    The amended grounds of review before the primary judge were as follows:

1.    The Authority denied procedural fairness to the Applicant.

Particulars

(a)    The Authority refused to consider written submissions made on the Applicant’s behalf because they were more than five pages in length. The Authority relied on a Practice Direction 1 dated May 2016 made by the President of the Administrative Appeals Tribunal under s473FB. The making of the Direction in so far as it purports to limit submissions to no more than five pages and to return longer submissions to an applicant is beyond the power given in s473FB to make Directions.

(b)    In the alternative, limiting submissions to 5 pages was an unreasonable exercise of the power to issue practice directions.

2.    The Authority erred by failing to consider the full case put on behalf of the Applicant by ignoring the submissions of the Applicant’s representative in relation to the “entry interview”… and the Applicant’s credibility in respect of his claim to have been threatened by the Taliban in 2010.

15    The amended grounds of review were under the hand of the appellant’s legal representatives. The appellant was represented by those legal representatives before the primary judge.

16    In relation to Ground 1, the primary judge said that the solicitor who appeared for the appellant accepted that the primary judge was bound by the decision in DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12 and that in those circumstances this ground must fail. The Court also noted that although the submissions were in excess of five pages they were considered by the Authority.

17    In relation to Ground 2, the primary judge concluded, at [37], that while it was the case that the Authority’s reasons did not refer to the authorities, the reasons did reflect considering the substance of the submissions. The Authority’s reasons referred to whether or not the entry interview should be taken into account in light of the express reference and overlap of topics in respect of the entry interview as referred to in the submissions dated 7 December 2016 and the findings of the Authority in relation to the 2010 telephone calls.

18    At [38]-[39], the primary judge said:

I do not accept that there was a failure by the Authority to have regard to the whole of the applicant’s representative’s submissions in relation to the entry interview in respect of the adverse findings concerning the 2010 telephone calls. Further the reference in the Authority’s reasons in paragraph 3 supports the Authority having had regard to the submissions in relation to this issue concerning the credibility of the applicant in respect of the 2010 telephone calls.

Accordingly I do not accept that there was a failure to consider the totality of the applicant's claims or a failure to consider the applicant’s full case in relation to the 2010 telephone calls. The Authority made adverse credibility findings in that regard that were open to the Authority for the reasons given by the Authority and cannot be said to lack an evident and intelligible justification. It was not necessary for the Authority to expressly refer in its reasons to every detail in the submissions and that includes the footnoted authorities.

The appeal

19    The proposed grounds of appeal have involved three phases.

20    First, on 23 May 2018, Tracey J ordered that the appellant file and serve a Notice of Appeal in the form apparently annexed to the appellant’s affidavit filed on 22 March 2018, within seven days. The form these grounds took was:

1.    The decision of the Tribunal

a.    Is affected by an error of law; and

b.    Denied me procedural fairness.

21    A second phase was an interlocutory application for leave to amend the notice of appeal to this Court. That application was dated 28 May 2018.

22    The proposed amended notice of appeal was in the following terms:

The Appellant appeals from the judgment as set out in this notice of appeal.

2.    The Second Respondent acted legally unreasonably in failing to seek out new information from the Appellant insofar as it related to the reason why he was not able to provide to the delegate, the country information that he wished to be considered by the Tribunal as new information.

3.    The Second Respondent took into account new information without assessing whether exceptional circumstances existed to justify its consideration, being the information mentioned in footnotes 2-9, 11 and 13 of the reasons of the Second Respondent (excluding the DFAT material and material post-dating the decision of the delegate).

4.    The Second Respondent took into account new information without assessing whether exceptional circumstances existed to justify its consideration, being the entry interview mentioned in paragraph 22 of the Second Respondent’s reasons.

…

The Appellant appeals from the whole of the judgment from the Federal Circuit Court of Australia given 20/12/2017 at Melbourne.

Grounds of appeal

1.    The Tribunal failed to consider evidence relevant to the applicant’s employment prospects in his home region, in that it failed to consider the evidence of his past experience in not being able to find adequate employment there and having to move elsewhere for employment.

2.    The Tribunal failed to consider a claim that arose on the evidence before it, being that the applicant would not have been able to find adequate employment in his home region, arising by reason of the evidence that he could not find adequate employment there when he last lived there.

3.    The Tribunal failed to draw to the applicant’s attention, an issue arising in relation to the review, being whether the applicant could obtain adequate employment in his home region.

23    The appellant submitted that he would not advance the same arguments as advanced before the Federal Circuit Court but would seek leave to depart from the manner in which his case was conducted before that Court and make new arguments as to why the decision of the Authority was affected by jurisdictional error.

24    The appellant submitted, in relation to the need for an extension of time, that the delay was not lengthy and that there was a reasonable explanation for the delay set out in the affidavit of Ms Judy Swan dated 25 (sic) May 2018. This affidavit says nothing about the period after 28 May 2018.

25    Further, in the appellant’s submissions, it was said that the appellant frankly accepted that there was no adequate explanation for why the grounds now sought to be advanced were [not] raised in the Federal Circuit Court. The appellant submitted that the merit in the appellant’s case outweighed these considerations.

26    These grounds were not pressed.

27    The appellant also sought leave, pursuant to s 27 of the Federal Court of Australia Act 1976 (Cth), to rely on material that was not before the Federal Circuit Court. This application was not pressed.

28    The Minister submitted that the form of notice of appeal for which leave was granted appeared at AB 377-378. No such document had been filed. A proposed amended form of notice of appeal was at AB 411-415. No notice of appeal had been filed.

29    The Minister submitted that the written submissions filed on behalf the appellant addressed three grounds, two of which did not appear to have been articulated in any draft notice of appeal.

30    The Minister submitted that leave should be refused to agitate the new grounds at AB 411-413 and in the appellant’s written submissions because, the Minister submitted, they were without merit and because certain of those grounds required evidence.

31    The third phase involved the following grounds which were pressed, in that they were the subject of the appellant’s application to amend the notice of appeal in respect of which he had been granted an extension of time by Tracey J.

32    The grounds for which leave was sought were as follows, as written:

1    The FCC decision is affected by appellable error in that it refused to issue constitutional writs directed to the Immigration Assessment Authority (the IAA), such writs being appropriate because:

a.    The IAA failed to afford procedural fairness to the applicant as required by s473GB(3)(b) of the Migration Act 1958 (Cth), in that the IAA did not inform the applicant of the existence of a certificate made under s 473GB(5).

b.    The decision of the IAA is affected by legal unreasonableness, in that the IAA failed to consider seeking out new information, or in that it failed to seek out new information, from the applicant in relation to its concerns about the applicant’s credibility.

c.    The IAA failed to perform a review exactly as required by the Migration Act 1958 (Cth) in that it took into account “new information” without first being satisfied that exceptional circumstances justified that course.

33    The appellant applied for leave to rely on these grounds. The grant of leave was opposed by the Minister.

34    Counsel for the appellant accepted that the proposed judicial review case was a brand-new case. He accepted there was no adequate explanation for why it was not run below. The only factors on which he submitted weight should be placed in the appellant’s favour were the strong merits of the grounds and the substantial prejudice to the appellant where no other party suffered material prejudice by the grant of leave.

35    Counsel for the Minister opposed the grant of leave. Counsel for the Minister submitted that there was no explanation at all for the delay since 24 May 2018 and the material suggested that it was not for lack of legal representation. He also submitted, in terms of prejudice, that the most recent proposed grounds of appeal dated 8 August 2018 was the date that the Minister’s written submissions were due in this Court.

36    He also opposed the grant of leave in respect of the first proposed ground on the basis that it raised a new factual point and because it would require a single judge to depart from the decisions of the Full Court in Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; 158 ALD 198 and in AYF16 v Minister for Immigration and Border Protection [2018] FCAFC 129. The Minister also submitted that the third proposed ground would require further evidence.

37    Counsel for the appellant submitted there was no need for any new evidence.

Proposed ground 1a

38    This proposed ground concerned a certificate under s 473GB. Counsel for the appellant submitted that the Court should find that he was not made aware of the existence of that certificate. Counsel submitted that given the nature of the scheme, any communication between the Authority or the Department and the appellant would be seen in the Court Book. In the absence of any material in the Court Book to indicate the appellant was informed of the existence of the certificate, the proper factual inference from the evidence before the primary judge was that he was not.

39    The appellant accepted that a Full Court in BBS16 held that the Authority does not have any obligation to inform a person of the existence of such a certificate. The appellant submitted that the Court in BBS16 was clearly wrong. The appellant submitted his argument did not depend on an appellant needing to be given an opportunity to make submissions about the scope or validity of a certificate. The appellant did not challenge the validity of the certificate in this case. The argument was that there existed a power capable of affecting the appellant’s interests, or at least one in respect of which the appellant could be understood to have an interest in its exercise. Except for provisions such as 473DA, or some other clear statement, it would be implied first that procedural fairness was a condition on the exercise of the powers adverse to an applicant later in the process. And that the content of natural justice here would include an obligation to inform the appellant of the existence of the certificate, so that he may be in a position to make argument about it, or perhaps even seek to advance new information to seek to persuade the Authority to exercise that power favourably. That was a carbon copy of the alternative ratio from MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081; 243 FCR 1. On a proper reading of s 473DA, the submission continued, it assumed that some of the ordinary content of the hearing rule was found in s 473GB and excluded all of that which was not to be found within s 473GB. But because s 473GB(3)(b) itself implied some content to procedural fairness in the form of informing an applicant of the existence of the certificate, s 473DA did not work to exclude that aspect of procedural fairness. Counsel accepted that if the appellant was to have any prospects of success on this ground it would need to be before a Full Court. Counsel also accepted that BBS16 squarely decided that there was no procedural fairness obligation on the Authority to inform the appellant of the existence of the certificate.

40    Counsel for the Minister submitted that this ground could not succeed unless the Court did not follow the Full Court’s decisions in BBS16 and AYF16. Moreover, the proposed ground raised a factual question of whether the certificate was drawn to the appellant’s attention. The Minister submitted it was too late to raise the issue now. The Minister also submitted that where, as here, the appellant accepted that the certificate was valid, one did not get to MZAFZ territory, let alone the further difficulties that Pt 7AA erected. In BBS16 the Full Court said, at [100], that the second limb of the analysis in MZAFZ had no application. The Full Court said:

[100]    For similar reasons, Beach J’s second limb has no application. That is because a referred applicant’s “procedural fairness” entitlements in respect of a s 473GB certificate/notification and related information are exhaustively stated in s 473GB(3). For the reasons explained above, those “entitlements” all depend upon how the IAA exercises its discretionary powers under that provision. Nothing we have said above is intended to indicate that there is no scope for the bias limb of procedural fairness to apply in an appropriate case. Moreover, there may be scope for a judicial review challenge to an adverse decision by the IAA where the IAA has had regard to an invalid s 473GB certificate/notification and related information if the referred applicant somehow becomes aware of this fact.

41    Counsel for the Minister also submitted that there was a further difficulty in the appellant’s path which was that any procedural fairness obligation would only be to draw to the attention of the referred applicant something that was credible, relevant and significant. Here no attempt had been made to obtain the document that was the subject of the (valid) certificate. In those circumstances, the Court could not be satisfied that there had been some species of practical injustice by reason of the document not being drawn to the attention of the appellant. The proposed issue raised a factual question about what the document was.

Proposed ground 1b

42    Counsel for the appellant submitted that despite the statutory injunction in s 473DB(1), it was difficult to understand how any decision-maker, acting reasonably, would not at least consider whether to seek out new information from an appellant prior to dismissing their claims to protection (a matter of life and death in many cases) on credibility grounds, especially where those adverse credibility findings were expressed in terms of “doubt” and not absolute conviction. If such consideration were given, one would expect to read something in the reasons for decision explaining why further information was not sought out (this need not be at an interview, and so, need not contravene the injunction in s 473DB(1)).

43    Counsel for the appellant focused on [20]-[25] of the Authority’s reasons. He drew attention to the circumstance that the delegate conducted an in-person interview. Counsel argued by analogy to the position in Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326, which did not involve Pt 7AA, as to the importance of interviewing a person when credibility was in issue.

44    Counsel for the appellant submitted it was inexplicable why the Authority felt able to decisively conclude that the appellant was lying about the claimed threats in 2010, in circumstances where it also accepted that he was telling the truth about earlier threats of harm.

45    The Minister submitted that the Authority was intended to operate as a review largely on the papers. The Authority had no duty to get new information. There was no reason of substance advanced why the Authority needed to interview the appellant. It had the benefit of the delegate’s interview and the appellant’s answers. It had the benefit of the appellant’s submissions. It was open to the Authority to form doubts about the appellant’s claims based on that material, for the reasons that it identified. The Authority had the audio record of the appellant’s Departmental entry interview. The Authority’s findings were either not expressed in terms of doubt at all or doubt in the sense of uncertainty.

Proposed ground 1c

46    The appellant submitted the nature of the review undertaken by the Authority required it to limit its attention to the “review material” supplied by the Secretary under s 473CB. In this case, the Authority thought that there were exceptional circumstances to justify considering the new information mentioned in footnote 1 of its reasons, and set out its reasons for why that was so, at [7]. However, the appellant submitted, the Authority also considered the following new information without satisfying itself of the test in s 473DD:

•    “Peshawar: Man Killed”, Dawn, 9 May 2008 – footnote 4.

•    “Shia passenger coach attacked in Kurram Agency, Pakistan”, Jaffria News, 12 May 2012 – footnote 7.

•    “Parachinar Targeted by Taliban”, Newsweek, 27 July 2013 – footnote 8.

47    Counsel for the appellant submitted that because the Tribunal mentioned these three items of information, this justified an inference that they were material to the decision. The appellant accepted that in cases where this kind of argument was advanced, a fair question may be whether the Court should infer that the Authority did satisfy itself of the test in s 473DD but simply failed to say that in its reasons (noting the limited obligation in s 473EA). However, an inference of that kind could not be sustained in this case given the Authority’s specific attention to this matter at [7] of its reasons. The appellant submitted the Authority did not have authority to consider those three items of new information. In doing so, it performed a function that did not exactly correspond with the function required of it under the Migration Act. It involved a failure to comply with the procedure required by law, which procedure appeared as part of an exhaustive statement of the hearing rule. Any failure to comply with this procedure was, the appellant submitted, jurisdictional.

48    Counsel for the appellant also relied on the Practice Direction dated 22 September 2016 as to the giving of information to the Authority by the Secretary of the Department, particularly by reference to the following:

Where the written statement of a decision to refuse a protection visa that is referred to us for review contains a reference to a document comprising country of origin information, then:

a)    if the document is available to us in CISNET – the document in CISNET will be taken to be review material given to us by you pursuant to paragraph 473CB (1)(c) of the Act; or

b)    if the document is not available to us in CISNET – you must give the document to us in electronic form along with any other material that is in your possession or control and is considered (at the time the decision is referred to us) to be relevant to the review.

49    Counsel for the Minister submitted, in relation to a previous iteration of this proposed ground, that it alleged that the Authority took into account new information without assessing whether exceptional circumstances existed. The ground proceeded on the unproven assumption that information mentioned in footnotes 2 – 9, 11 and 13 of the Authority’s decision was ‘new information’ within the meaning of s 473DC. That turned on whether the information was “before the Minister” within the meaning of s 473DC(1)(a). That was a question of fact. The appellant should not be permitted to raise this question for the first time on appeal: Water Board v Moustakas [1998] HCA 12; 180 CLR 491. The Minister submitted that proposed ground 1c appeared to raise the same point, and so must fail for the same reason.

50    Counsel for the Minister submitted that new information in terms of s 473DC was, relevantly, a document that was not before the Minister when the Minister made the decision. The three documents of which the appellant complained fell into the category of the departmental file. The first document was one which the appellant apparently provided to the delegate and so it was not new information. That showed that it was not a legitimate form of reasoning to say that only the pieces of country information footnoted in the delegate’s decision were before the delegate. There was plainly a category of material that was before the delegate because the appellant provided it. The same applied to the other two documents. The Court Book was an inadequate factual record to be deciding this factual question. There was also an issue, counsel submitted, as to the materiality of these documents.

Consideration

51    Counsel for the appellant accepted that each of the three issues he sought to agitate on the appeal were new: they were not before the primary judge. It follows, as counsel accepted, that the appellant needs leave to rely on these new issues.

52    One factor relevant to the exercise of the discretion to grant leave is whether or not the appellant was legally represented before the primary judge. He was. He accepted that there was no adequate explanation for why the grounds now sought to be advanced were not raised before the primary judge.

53    Another factor to bear in mind is the risk of this Court in its appellate jurisdiction becoming the court of first instance as the primary judge has not considered these proposed new grounds. This consideration has an added dimension where questions of fact are involved.

54    The overall question is the interests of justice in the particular case. The apparent merits, or lack of merits, of the proposed new grounds are relevant.

55    Turning to proposed ground 1a, I am not prepared to assume that the certificate was not drawn to the appellant’s attention. There is no application before me pursuant to s 27 of the Federal Court of Australia Act. I find it is not in the interests of justice to grant leave to the appellant to rely on this new ground. I refer to [52]-[54] above. Leave to rely on this ground is refused. I am also bound to follow BBS16 and AYF16. I do not accede to the invitation on behalf of the appellant to grant leave to rely on this ground and refer the matter to a Full Court.

56    In relation to proposed ground 1b, I also find it is not in the interests of justice to grant leave to the appellant to rely on this new ground. I refer again to [52]-[54] above. As articulated, the proposed ground has no merit. It comes close to saying that because the Authority could have exercised the power, it was legally unreasonable for it not to have done so, compare Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [15] per Kiefel CJ. Leave to rely on this ground is refused.

57    In relation to proposed ground 1c, I am not prepared to assume or to draw the inference that the material mentioned in the impugned footnotes was not before the delegate when the delegate made the decision under s 65 and I am therefore not prepared to assume or infer that the material was “new information” within the meaning of s 473DC(1). The date of the primary decision was 9 November 2016. The material in the footnotes dates from 2008, 2012 and 2013. Indeed, footnote 4, as I read it, refers to an article provided by the appellant at the TPV interview. It seems likely that the material in the other two footnotes is in the same category. I am certainly not prepared to find the opposite. Again, there is no application before me under s 27 of the Federal Court of Australia Act. This proposed ground in particular shows the risk of this Court on appeal being asked to perform for the first time the task of the Federal Circuit Court. I find it is not in the interests of justice to grant leave to the appellant to rely on this new ground. Leave to rely on this ground is refused.

Conclusion and orders

58    The application for leave to rely on each of the grounds not argued before the Federal Circuit Court is refused. It follows that since these were the only proposed grounds, the appeal must be dismissed, with costs.

Associate:

Dated:    17 August 2018