FEDERAL COURT OF AUSTRALIA

FKO17 v Minister for Home Affairs [2019] FCA 98

ORDERS

THE COURT ORDERS THAT:

1.    The appellant have leave to file an amended notice of appeal in the form of the proposed amended notice of appeal dated 7 November 2018 and filed with the appellant’s outline of submissions, and that the proposed notice attached to the appellant’s submissions stand as the amended notice of appeal.

2.    The appellant have leave to rely upon the grounds in the amended notice of appeal.

3.    The appeal is allowed.

4.    The orders numbered 2 and 3 of the Federal Circuit Court made 2 July 2018 are set aside.

5.    A writ of certiorari issue quashing the decision of the second respondent dated 22 November 2017.

6.    A writ of mandamus issue requiring the second respondent to undertake a review of the appellant’s referred application for a protection visa according to law.

7.    The first respondent pay the appellant’s costs of the appeal, to be assessed in default of agreement.

8.    There be no order as to the costs of the proceeding before the Federal Circuit Court.

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

REASONS FOR JUDGMENT

WHEELAHAN J:

Introduction

1    The appellant sought judicial review in the Federal Circuit Court of Australia of a decision of the Immigration Assessment Authority (the Authority) which affirmed a decision of a delegate of the first respondent (the Minister) to refuse the appellant’s application for a protection visa. On 2 July 2018, the Federal Circuit Court dismissed the appellant’s application for judicial review, and the appellant appeals that decision to this Court.

2    Before this Court, the appellant and the Minister were represented by counsel. The Authority filed a notice submitting to any order of the Court save as to costs. Counsel for the appellant, who did not appear below, relied upon a proposed amended notice of appeal which raised arguments that were not put before the primary judge. It shall be necessary to consider whether the appellant should have leave to rely on the amended notice of appeal, and upon the new arguments that were put to this Court.

Background

3    The appellant is a citizen of Sri Lanka, and is a Hindu of Tamil ethnicity. The appellant travelled to Australia with his wife and four children by boat, and arrived at Christmas Island in November 2012. In November 2016, the appellant applied for a Safe Haven Enterprise visa. Included in that application were the appellant, his wife, and their four children, who were all minors at that time. In April 2017, a delegate of the Minister refused the application. The delegate’s decision was treated as a “fast track reviewable decision” for the purposes of Part 7AA of the Migration Act, and was referred to the Authority as required by s 473CA of the Act. In November 2017, the Authority affirmed the delegate’s decision to refuse the application for a visa.

4    In support of his application for a visa the appellant claimed that from 2000 he and his wife had owned and managed a grocery shop in Sri Lanka, and that from 2004 he also operated an auto-rickshaw. The appellant claimed that his business was targeted by the Sri Lankan authorities and by the Tamil Makkal Viduthalai Pulikal party (TMVP), as they wanted him to support the TMVP.

5    The appellant claimed that in March 2008, he ran in a local election as an independent candidate, and was elected. He claimed that this required him to move away from his home town to another town, while his family stayed in the home town. The appellant claimed that while away, he was protected by local police but that the police could not protect his wife and children as that was beyond their responsibility. The appellant claimed that while he was away, the TMVP visited his wife, and threatened his and his family’s lives, and that he continued to receive these threats for five years.

6    The appellant claimed that in May 2008, the TMVP asked him to run in a provincial election on their behalf. He stated that groups such as the TMVP were unable to win seats on their own, and used violence to gain control of candidates. The appellant stated that he refused to run on behalf of the TMVP because they were a corrupt and violent group. The appellant claimed that the TMVP threatened his life and safety, including by holding weapons, and threatening to shoot him without warning. The appellant claimed that he was then approached by the Eelam People’s Democratic Party (EPDP) who offered him protection from the TMVP if he joined them. The appellant claimed that he accepted their offer as he was scared for himself and for his family’s safety and believed that their political position was allied with his own. In May 2008, the appellant ran as an EPDP candidate in the provincial election but was unsuccessful. The appellant claimed that on the night of the provincial election, the TMVP brutally attacked and beat his wife at their home. He claimed that the TMVP had come to kill him, but that he was away. The appellant’s wife registered a complaint about the attack with the Human Rights Commission of Sri Lanka.

7    The appellant also claimed that on 20 July 2008 the TMVP attacked his family again, and that during the attack his wife was severely beaten, and that she injured her right knee while trying to flee.

8    The appellant claimed that in September 2012 the TMVP threatened his family again. The appellant stated that the TMVP threatened and harassed his wife by pointing a gun at her head. In a record of the entry interview of the appellant’s wife, she is recorded as stating that, “8/9/2012 election was held and Karana and Pillyan group came on 15 September to shoot and kill him”. The appellant’s family then left their home town and joined the appellant in the other town where he had been staying. The appellant and his family then left Sri Lanka in November 2012. The appellant claimed that if he returned to Sri Lanka with his family, the TMVP would be able to find his family and that he feared that the TMVP would kill his family due to his political beliefs, and his refusal to join the TMVP.

9    The appellant’s wife made a statement in support her own application for a visa by which, subject to one clarification, she confirmed that the claims by the appellant were true and correct to the best of her knowledge.

The delegate’s decision

10    The delegate refused the applications for protection visas because the delegate was not satisfied that the appellant held a well-founded fear of persecution, and because there were no complementary protection grounds that were engaged. In consequence of the rejection of the appellant’s application, those of his wife and children were also rejected

11    Material to the arguments presented on appeal, the delegate accepted that the appellant was elected to the local council on 10 May 2008 and that the appellant’s wife was subject to an attack on 10 May 2008. The delegate also accepted that the appellant’s wife sustained an injury to her knee in July 2008 that required a knee reconstruction that was undertaken in Australia. The delegate did not accept that the TMVP had targeted the appellant to get him to support their party, and in particular did not accept that the TMVP attempted forcibly to recruit the appellant. The delegate stated that the appellant was asked several times in the visa interview whether anything happened to the appellant between 2008 and 2012 and in the absence of an answer concluded that nothing happened to him. The delegate noted that the appellant himself was not harmed in the period 2008 to 2012, and did not accept that the appellant himself was of interest to the TMVP. While the delegate acknowledged the incidents involving the appellant’s wife, the delegate did not accept that the TMVP had attacked the appellant’s wife or family, or that they were threatened as claimed in 2012. The delegate further found that even if the appellant’s claims were accepted, the TMVP and EPDP were now politically aligned, and did not accept that the appellant would now face harm for having supported one party over the other in 2008.

New information

12    Upon the delegate’s decision being referred to the Authority, the Authority sent a copy of its Practice Direction to the appellant. The Practice Direction provided that the appellant might provide to the Authority submissions and new information. The appellant subsequently made a submission to the Authority which was in the form of a signed statement and some attachments. By his own statement the appellant stated that he had concealed facts and not given a full account of his involvement with the EPDP, because it had been involved in atrocities. The appellant denied any personal involvement in such atrocities, but stated that he was concerned that he would be seen as a former member of EPDP responsible for such atrocities. The appellant then provided in his statement further information about his membership of and involvement with the EPDP.

13    The appellant also submitted to the Authority a statement of his wife dated 23 May 2017, and statements of each of his two eldest children. The statement of the appellant’s wife referred to the TMVP verbally abusing her in 2008 after the appellant had left their home town –

At that time I and my three children were alone. TMVP member came and verbally abused me. They said: Your husband is not with you. We will come and stay with you.

I had to open the door of the house whenever they came. Otherwise they threatened that they would shoot my children.

14    The appellant’s wife’s statement also referred to an incident after the second election in 2008 where five TMVP persons came and pointed a gun at her head and threatened to kill her. She claimed that they attacked her with an iron rod, and that she had 21 stitches on her head. The statement referred to the TMVP attending the house on 20 July 2008 and to the appellant’s wife tripping and injuring herself while fleeing the house for which she underwent an operation in Australia. Material to this appeal is that the appellant’s wife also stated –

During 2008-2012 TMVP attempted to abduct our children. When our children were unsafe in that country we came here seeking refuge.

TMVP members went to the school and told my children that they had shot dead my husband.

15    The statement of the appellant’s eldest child stated that he had seen the TMVP attack his mother in May 2008. The eldest child also stated that –

The TMVP people came to my school and they threatened me saying that they killed my father. This had occurred many times.

16    In a statement to the Authority the appellant’s second child stated –

While I was studying in Sri Lanka a person came to my class room and he told me that he is coming from my father’s office and my father send him to pick me up from school. My mother has told me that I shouldn’t leave with anyone except she comes and picks me up from school. For that reason, I didn’t go with him, I waited for my mother to come to pick me up.

I told her what happened and my mother ask my father if he send anyone to pick me up. He said he didn’t send anyone so I do not know who came. It might be the people who are in the opposite party.

17    The Migration Act imposes restrictions on the capacity of the Authority to consider “new information”. Section 473DB sets out a primary requirement that, subject to the Part, the Authority is to review a fast track reviewable decision referred to it under s 473CA by considering the “review material” provided to the Authority under s 473CB without accepting or requesting new information, and without interviewing the referred applicant: Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 353 ALR 600 at [22]. To that rule, there are exceptions. Section 473DC(3) permits the Authority to get new information by inviting a person to give new information to the Authority. In this case, by its Practice Direction the Authority invited the appellant to give it new information.

18    However, s 473DD of the Act mandates that the Authority must not consider new information given to the Authority by a referred applicant unless the cumulative conditions in (a) and (b) are engaged –

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.

19    The pre-condition in s 473DD(a) applies to all new information, and the alternate pre-conditions in s 473DD(b) apply to new information that a referred applicant gives, or proposes to give to the Authority.

20    In relation to the submissions made by the appellant to the Authority, and in particular the four statements that were supplied, the Authority had to consider whether any of the material constituted new information, and if so, whether it was able to consider the information.

The decision of the Authority

New information

21    The Authority commenced its reasons for decision by considering whether it should have regard to the further material submitted by the appellant. In relation to the appellant’s own statement concerning particularly his involvement with the EDPD, the Authority was not satisfied as to the credibility of the facts asserted in the statement or the documents said to support them. The Authority stated that it was not satisfied as to the matters in s 473DD(b) of the Migration Act, and was not satisfied that there were exceptional circumstances to justify considering the new information.

22    In relation to the appellant’s wife’s statement, the Authority considered that it did not constitute new information. In its reasons, the Authority focussed on the claims that members of the TMVP came to the family home, as set out at paragraph [13] above. The Authority did not in considering whether the wife’s statement contained new information make any express reference to the claims of attempts to abduct the appellant’s children in the period 2008 to 2012, or that TVMP members had attended the school and told the children that they had shot dead the appellant, as set out at paragraph [14] above.

23    The Authority’s reasons in relation to whether it could consider the information in the appellant’s submissions and the statements of his wife and two eldest children are found in paragraphs [10]-[15], which I shall set out in full. The reference in the reasons to the second applicant is to the appellant’s wife –

10.    The submission sets out what the primary applicant refers to as the "true facts" of his involvement with the EPDP but it does not make any other claims except that the primary applicant left Sri Lanka because the EPDP "resorted to violence". The submission attaches two photographs but does not explain who the persons in the photographs are or why they are relevant to the primary applicant's claims. It also attaches 11 documents that refer to the primary applicant and his role with the EPDP. All of these documents refer to the primary applicant providing support to individuals but none of them refer to any of the issues that the primary applicant has previously claimed, or indicate that the primary applicant has suffered any harm in Sri Lanka. All of these documents refer to events that occurred before the primary applicant left Sri Lanka but they are all dated after the delegate's decision and the primary applicant has not explained why they were not and could not have been provided before the decision.

11.    While I note his explanation that he was too scared to raise his EPDP involvement at the interview, I also note that he has not claimed to have become scared until the comments were made by the interviewing officer. He has not explained why he was scared or unable provide the "true facts" and the above documents to the Department before the interview. The primary applicant has not satisfied me as to the credibility of these facts or documents. I also take into account that the "true facts" do not raise any other claims to fear harm in Sri Lanka and do not refer to any of the claims that were before the delegate. The attached documents do not refer to or raise any other incidents that the primary applicant claims give rise to a fear of harm.

12.    Having regard to all of these factors I have significant concerns as to the credibility of the information and documents that he now seeks to provide the IAA. The primary applicant has not satisfied me as to the matters in s.473DD(b) and further, I am not satisfied that there are exceptional circumstances to justify considering any of this new information.

13.    The submission attaches a further statement from the second applicant that refers to some of the inconsistencies and concerns raised by the interviewing officer and attaches a further copy of documents that were provided with the SHEV application. This part of the second applicant's statement is not new information.

14.    The second applicant’s further statement also claims that members of the political party Tamil Makkal Viduthalai Pulikal (TMVP) came to the family home while the primary applicant was away and said "Your husband is not with you. We will come and stay with you" and that the second applicant "had to open the door of the house whenever they came" because they threatened to shoot her children. This claim was not raised in either the primary or the second applicant's SHEV statements, nor was it raised at the interview. However, it is consistent with a statement made by the second applicant at the end of her entry interview in February 2013, where she stated that the Karuna and Pillayan group would come and ask her if they could live with her because her husband was absent. I also note that while the second applicant was present at the interview, she was there as a support person and did not give evidence or make separate claims. The interviewing officer asked the primary applicant on a number of occasions whether there were any incidents apart from the ones set out in the SHEV statements and the primary applicant did not refer to this issue; however, the primary applicant has referred to his family suffering continual threats and harassment by the TMVP. I also note that both SHEV statements indicate that they are only summaries of claims and are not exhaustive statements of reasons. Having regard to all of these factors, I am satisfied that this is not new information.

15.    The submission attaches statements and documents from the two eldest child applicants [reference numbers omitted]. The statements purport to corroborate the primary applicant’s claims of his role with the EPDP and also refer to issues that the child applicants claim to have themselves experienced in Sri Lanka. None of this information was before the delegate. The applicants have not explained why these issues were not raised in the primary or second applicant’s statements or at the interview. The applicants have not satisfied me as to the matters in s 473DD(b) and further, I am not satisfied that there are exceptional circumstances to justify considering this new information.

Reasons for affirming the delegate’s decision

24    The Authority accepted that the appellant stood for elections in 2008, and that he was a candidate for the EPDP during the provincial council elections.

25    The Authority referred to information that by 2011 the TMVP and the EDPD were politically aligned, but that they had been political rivals during the 2008 elections. The Authority accepted that the assault on the appellant’s wife in May 2008 was carried out by members of the TMVP because of the appellant’s profile at the election. The Authority considered that the second assault of the appellant’s wife in July 2008 occurred because of the report of the May 2008 assault that she had made to the Sri Lankan Human Rights Commission.

26    As to the period 2008 to 2012, the Authority stated that the only claim that the appellant had made was to the interviewing officer when he claimed that during that period his wife was arrested a number of times. The Authority stated that this claim was uncorroborated, and that neither the appellant or his wife had made that claim before. The Authority did not accept that the appellant’s wife was subject to any arrest or detention during this period.

27    In relation to the appellant’s claim that he had been under police protection, the Authority concluded that the appellant had received such protection during the council elections in March 2008, but that this was general protection for candidates that was of limited duration, and that it did not indicate that the appellant had any particular risk profile. The Authority did not accept that the appellant was under police protection once the March 2008 election had concluded.

28    The Authority did not accept the claim that the appellant’s wife was threatened by the TMVP in September 2012. The Authority’s reasons included information relating to political alignment between the TMVP and the EPDP at that time. The Authority was not satisfied that the appellant was of any adverse interest to the TMVP after the May 2008 elections. The Authority was not satisfied that the appellant faced a real chance of harm at the hands of the TMVP or any other political or paramilitary organisation should he return to Sri Lanka.

29    The Authority accepted the claims by the appellant’s wife that the TMVP came to the family home on two occasions in 2008, and that the men returned and demanded sexual favours and threatened the appellant’s wife and her children if she did not comply, and that therefore the appellant’s wife had suffered conduct that may amount to serious harm. The Authority was satisfied that the appellant’s wife was targeted because she was living alone and was identified as a vulnerable person. However, the Authority was satisfied that the appellant’s wife would not be seen as single and vulnerable if she was to return to Sri Lanka.

30    In relation to claims of attempted kidnap of the appellant’s children, the Authority stated –

37.    At the end of the interview the primary applicant stated that he was scared for his children because the TMVP kidnaps children. He has not provided any further information or evidence, nor has he claimed that the TMVP ever attempted to kidnap his children. I am not satisfied that the primary applicant’s children were ever subjected to attempted kidnapping and I do not accept this claim.

38.    The primary applicant also said that the TMVP told his wife and children that he had been shot dead. He has not explained when this is alleged to have occurred but I am prepared to accept that the statements were made in the context of the TMVP attending the family home, most likely in 2008.

31    It should be noted that the reasons of the delegate of the Minister for refusing the appellant’s application did not refer to the appellant’s statement in the interview that he was scared for his children because the TMVP kidnaps children.

32    The Authority concluded that it was not satisfied that the appellant faced a real chance of harm arising from his profile or activities should he return to Sri Lanka, and nor did his wife or children. The Authority also concluded that there were no complementary protection grounds that were engaged.

The decision of the Federal Circuit Court

33    Before the Federal Circuit Court the appellant was represented by a solicitor. One ground of review was advanced which alleged jurisdictional error by the Authority in rejecting the appellant’s claims without either it or the delegate making inquiries of the appellant’s wife as to the claimed events, including the alleged incident in September 2012. The primary judge rejected this ground essentially because the appellant had not sought to put any new information before the Authority concerning the alleged September 2012 incident despite having notice that the delegate had made an adverse finding in relation to that claim. The primary judge relied on the fact that the statement of the appellant’s wife that was provided to the Authority did not address the claimed September 2012 incident.

34    On appeal, there was no direct challenge to the primary judge’s reasons in relation to the ground of review that was argued before the Federal Circuit Court, save that it was submitted that the primary Judge had stated erroneously (at [9]) that the Authority was satisfied that there were “exceptional circumstances” to justify considering the wife’s statement. There was no such finding in the Authority’s reasons.

The grounds of appeal

35    The notice of appeal was filed before the written reasons of the primary judge were published, and at the time that it was filed, the appellant was self-represented. The notice contains one broad ground alleging unspecified “jurisdictional error” by the primary judge.

36    Counsel for the appellant sought leave to rely upon an amended notice of appeal. Counsel for the Minister opposed the application for leave to amend the notice on the ground that the proposed amendments raised new issues, and that they lacked merit. However, counsel for the Minister stated that the new grounds did not cause any prejudice. The parties were content to present full argument directed to the proposed amended grounds, as if on appeal, and that I should reserve my decision on the application for leave to amend. I considered this to be the appropriate course in the circumstances because counsels’ submissions were commendably focussed, and the merits of the proposed grounds would be the leading consideration as to whether new arguments should be permitted, and in turn whether leave to amend the notice of appeal should be given.

37    The two proposed grounds of appeal are as follows –

1.    His Honour erred in finding that the [the Authority] considered new information in accordance with s 473DC and 473DD of the Act. His Honour should have found that the Authority failed to exercise the power in s 473DC and 473DD or improperly exercised the powers in those sections in regard to:

(a)    the statements in the applicant wife’s statutory declaration that:

“During 2008-2012 TMVP attempted to abduct our children.”

“TMVP Members went to the school and told my children that they had shot dead my husband.”

(b)    the statements in the son’s statutory declaration that:

“The TMVP people came to my school and threatened me saying they had killed my father. This happened many times.”

(c)    The statements in the daughter’s statutory declaration that:

“While I was studying in Sri Lanka a person came to my class room and he told me that he was coming from my father’s office and my father send him to pick me up from school. My mother has told me I shouldn’t leave with anyone except she comes and picks me up from school for that reason I didn’t go with him, I waited for my mother to come and pick me up. I told her what happened and my mother ask my father if he send anyone to pick me up. he said he didn’t send anyone so I do not know who came. it might be people who are in the opposite party.”

2.    His Honour should have found that the Authority overlooked the following information which was critical to claims made by the applicant:

(a)    the statements in the applicant wife’s statutory declaration that:

“During 2008-2012 TMVP attempted to abduct our children.”

“TMVP Members went to the school and told my children that they had shot dead my husband.”

(b)    The statements in the son’s statutory declaration that:

“The TMVP people came to my school and threatened me saying they had killed my father. This happened many times.”

(c)    The statements in the daughter’s statutory declaration that:

“While I was studying in Sri Lanka a person came to my class room and he told me that he was coming from my father’s office and my father send him to pick me up from school. My mother has told me I shouldn’t leave with anyone except she comes and picks me up from school for that reason I didn’t go with him, I waited for my mother to come and pick me up. I told her what happened and my mother ask my father if he send anyone to pick me up. he said he didn’t send anyone so I do not know who came. it might be people who are in the opposite party.”

The parties’ submissions

38    Counsel for the parties prepared written submissions. The oral submissions of counsel for the appellant had a different emphasis from that of his written submissions, and I propose therefore to consider the submissions of the appellant that were presented in oral argument.

The submissions of the appellant

39    Counsel for the appellant framed his submissions by reference to the pre-condition in s 473DD(b)(ii) of the Migration Act. Counsel submitted that in relation to the statements of the appellant’s wife and children that were provided to the Authority, there was no assessment by the Authority as to whether the information that I have set out under paragraph [14] above relating to the attempts to abduct the children was credible personal information that may have affected the consideration of the claim. Counsel relied on the decision of Derrington J in CIH16 v Minister for Immigration and Border Protection [2018] FCA 1317, and the decisions of the Full Court in Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110 and AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111 to support a submission that in considering whether exceptional circumstances exist for the purposes of s 473DD(a), the Authority is obliged to consider all relevant circumstances, and that the matters referred to in s 473DD(b) will usually form part of that consideration.

40    Counsel drew a parallel between this case and CIH16 and submitted that the absence of any reference in the Authority’s reasons to the information in the wife’s statement concerning the attempts to abduct the children, or the corresponding information in the statements of the children, supported an inference that the credibility of the information was not considered for the purposes of determining whether the pre-condition in s 473DD(b)(ii) of the Act was engaged, which had the consequence that no finding about the credibility of that information was taken into account for the purposes of determining whether exceptional circumstances existed for the purposes of the pre-condition in s 473DD(a). Counsel relied on paragraphs [10]-[15] of the Authority’s reasons to support the inference that the Authority did not consider all the information in the wife’s statement or the corresponding information in the children’s statements against the pre-condition in s 473DD(b)(ii). In particular, there was reference in paragraph [11] of the Authority’s reasons to the credibility of information in the appellant’s own submission to the Authority, but there was no reference by the Authority in paragraph [15] to any evaluation of the credibility of the information in the wife’s statement about the attempts to abduct the children, or to the credibility of the information in the children’s statements. Furthermore, paragraphs [13] and [14] of the Authority’s reasons referred to other information in the wife’s statement, with no suggestion that the information was not credible.

41    Counsel for the appellant also relied on paragraphs [37]-[38] of the Authority’s reasons to support an inference that the Authority had not considered the credibility of the information about the attempts to abduct the children. Counsel submitted that the Authority’s statement in paragraph [37] of its reasons that the appellant had not provided any further information or evidence or claimed that the TMVP ever attempted to kidnap his children was incorrect in that, although the Authority did not consider such information, the appellant had provided it.

The submissions of the Minister

42    Counsel for the Minister made an over-arching submission that the Court should not read the reasons of the Authority with an eye keenly attuned to the perception of error, relying on Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.

43    In relation to the appellant’s submissions concerning whether the Authority considered s 473DD(b)(ii) of the Act in relation to the wife’s statements about the attempted abduction of the children, counsel for the Minister submitted that paragraphs [10] and [11] of the Authority’s reasons (which I have set out under paragraph [23] above) indicated that the credibility of the information in the appellant’s own submission was in issue. Counsel submitted that paragraph [14] of the reasons indicated that credibility was also in issue in relation to the information in the wife’s statement, because of the reference to the failure to raise the claim concerning the TMVP coming to the family home in the initial statements, or before the interviewing officer. Counsel submitted that in that context, the last two sentences of paragraph [15] of the Authority’s reasons are to be understood as relating to both limbs of s 473DD(b).

44    In relation to the appellant’s reliance on the reasons of Derrington J in CIH16 v Minister for Immigration and Border Protection [2018] FCA 1317, counsel drew attention to the reasons of the Full Court in AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111 at [14], where the Full Court stated –

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.

45    Counsel emphasised the first sentence in the above passage. Counsel also submitted that the decision of Derrington J in CIH16 was distinguishable because the new information that was the subject of that case was objective evidence in the form of observations of scarring recorded in a medical report, and that such information was of a different character to claims in the form of accounts by the appellant which have differed over time.

46    Counsel for the Minister submitted that there was no obligation upon the Authority to refer to every contention made by an applicant in its written reasons: Applicant WAEE v Minister for Immigration (2003) 236 FCR 593 at [46]. Counsel relied on the decision of Bromwich J in CVS16 v Minister for Immigration and Border Protection [2018] FCA 951 which held that the Authority was not obliged to give any reasons as to why it might accept or reject new information under s 473DD. I note that in holding that the Authority was not obliged to give reasons in relation to the whether s 473DD was engaged, Bromwich J followed the decision of Thawley J in BCQ16 v Minister for Immigration and Border Protection [2018] FCA 365 which concerned s 473EA(1) and which his Honour held to be indistinguishable. BCQ16 was followed by the Full Court in BVD17 v Minister for Immigration and Border Protection [2018] FCAFC 114 at [42] (cf, CIH16 at [41]). Counsel for the Minister relied on the reference by Bromwich J in CVS16 at [21] to the observations of Gummow J in Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [67] to [70], and to what Bromwich J described as the “steep hurdle” to be surmounted in proving that something not referred to in reasons has been overlooked in circumstances where there was no obligation to make such a specific reference. Counsel submitted that the appellant had not established that the wife’s statement concerning the attempts at abducting the children had been overlooked by the Authority. Counsel submitted that this was substantially the same information as that contained in the children’s statements, and the conclusion not to consider that information in the wife’s statement was subsumed within the Authority’s determination not to consider the information in the children’s statements: Applicant WAEE at [47]. Counsel also submitted that the Court should be slow to infer that the Authority, in considering the pre-conditions under s 473DD, had examined some aspects of the wife’s statement that were the subject of paragraph [14] of its reasons, but had overlooked the remainder of the statement.

47    In relation to paragraph [37] of the Authority’s reasons, counsel for the Minister submitted that the Authority should be understood as stating that in the context of the limitations in s 473DD, the Authority did not have within its permissible field of information any claim by the appellant that the TMVP ever attempted to kidnap his children. Counsel submitted that in considering paragraph [37] of the Authority’s reasons the Court should have regard to the structure of the reasons, which commenced with the Authority’s determination of what “new information” it could consider, and that having identified that information, paragraph [37] should be understood as being referrable to the information that the Authority was permitted to consider.

Consideration

Leave to amend the notice of appeal and to raise new arguments

48    Leave is required to raise a new argument on appeal. The reasons for this practice include the distinct roles of a court exercising original jurisdiction, and a court exercising appellate jurisdiction: Coulton v Holcombe (1986) 162 CLR 1 at 7. Leave to raise a new argument may be granted if it is expedient in the interests of justice to do so: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 at [46]. Typically, in considering whether it is expedient in the interests of justice to allow a new point to be raised on appeal, the Court may consider any explanation for the point not having been raised at first instance, the merit of the point, and whether there is any prejudice to other parties in allowing the point to be raised on appeal: VUAX at [48].

49    Counsel for the Minister fairly stated that the new grounds did not cause any prejudice. As to the explanation for the failure to present the new arguments to the primary judge, the appellant’s solicitor by an affidavit affirmed 7 November 2018 deposed that the involvement of counsel in presenting the appellant’s case before this Court led to the formulation of the new grounds. For the reasons that I shall develop further, I consider that the proposed grounds have merit. In these circumstances, the interests of justice favour giving leave to the appellant to rely upon the new arguments within the amended grounds because, upon the hypothesis that there is jurisdictional error attending the Authority’s decision, the appellant will suffer substantial injustice if he is unable to obtain a remedy.

The appeal

50    In my view, the Authority’s reasons disclose two material errors.

51    It is convenient to commence with paragraph [37] of the Authority’s reasons which I have set out under paragraph [30] above. The Authority referred to a claim made by the appellant in his interview that he was scared for his children because the TMVP kidnaps children. The Authority did not accept that claim for reasons including that “[h]e has not provided any further information or evidence, nor has he claimed that the TMVP ever attempted to kidnap his children”.

52    Sections 473DC and 473DD of the Act refer to the Authority getting, requesting, accepting and inviting new information, and to a referred applicant giving or proposing to give new information to the Authority. The restrictions that are imposed by s 473DD are not directed to the Authority’s power to invite, get, request, or accept new information, or upon a referred applicant’s ability to give the Authority new information. Rather, the restrictions are imposed on the Authority’s ability to consider new information: EMJ17 v Minister For Immigration and Border Protection [2018] FCA 1462 at [60] (Thawley J).

53    The statements of the appellant’s wife and two children that were the subject of the Authority’s reasons at paragraphs [14] and [15] in combination provided further information about attempts to kidnap the appellant’s children and, because the statements were provided to the Authority by the appellant, the information can be characterised as claims by the appellant that the TMVP attempted to kidnap his children. At least in relation to the children’s statements, the Authority determined that it could not consider the information. But it quite another thing to suggest, as the Authority did at [37], that the appellant did not provide the information, and that he did not claim that the TMVP attempted to kidnap his children, which evidently went to the appellant’s credit. The Authority relied on the non-provision of further information and the suggestion that the appellant had not claimed that the TMVP attempted to kidnap his children to diminish the appellant’s credibility and then to reject claims he made in his interview.

54    I accept that the Authority’s reasons are to be read in a practical common-sense manner and are not be construed with an eye keenly attuned to the perception of error: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271–2. The extent to which the Court should construe reasons of an administrative body in a way that is beneficial to the decision-maker will depend upon the statutory framework and factual context.

55    I do not accept the submissions made on behalf of the Minister that the Authority’s reasons at [37] should be understood as stating only that, in the context of the limitations in s 473DD, the Authority did not have within its permissible field of information any claim by the appellant that the TMVP had attempted to kidnap his children. The difficulty with the Minister’s submission is that is not what the Authority said. The Authority said that the appellant had not provided any further information or evidence. It was the failure to provide further information, and not the mere absence of information, that was relied on by the Authority to reject the appellant’s claims in relation to the threats to abduct his children. A practical common-sense approach to the Authority’s reasons does not permit the construction which counsel for the Minister advanced, particularly because the Authority referred to further information.

56    Had there been a mere absence of information because the Authority was precluded by s 473DD of the Act from considering the new information, then the Authority may not have rejected the appellant’s claims on the ground stated, which was directed to the appellant’s failure to provide further information and evidence. For this reason, the Authority’s error at [37] in stating that the appellant had not provided any further information or evidence was a material error, because it may have affected the outcome.

57    Part 7AA of the Migration Act provides for a limited form of review of fast track reviewable decisions: s 473FA(1). One of the features of the scheme of Part 7AA that exists for the benefit of referred applicants is the capacity of the Authority to consider new information given to it by a referred applicant if the pre-conditions in s 473DD are engaged. There are many cases where the Court has considered whether a failure by a tribunal to have regard to claims and information before it may amount to jurisdictional error: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2015) 236 FCR 593 at [52]; ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109 at [61]-[67]. The error in paragraph [37] of the Authority’s reasons goes beyond an omission to consider material before the Authority, because paragraph [37] contains an affirmative statement that further information was not provided to the Authority, when it had been. And the erroneous finding that further information and evidence were not provided, and that the appellant had not claimed that the TMVP had ever attempted to kidnap his children, were then relied upon to dismiss the appellant’s claim about his concerns that the TMVP might kidnap his children. The Authority’s error was fundamental, and had the consequence that there was a constructive failure to undertake the review of the appellant’s application that s 473CC of the Act required. If the Authority had not made the error in paragraph [37] it may have assessed the appellant’s claim about his concerns that TMVP kidnap children differently, and it may have considered the appellant’s credibility differently. The error was therefore material. For these reasons, the error was jurisdictional: Hossain v Minister for Immigration and Border Protection (2018) 359 ALR 1 at [31].

58    The second error in the Authority’s decision is that I infer that the Authority did not consider whether the information in the statements of the appellant’s wife and two eldest children was credible for the purposes of evaluating whether the pre-condition in s 473DD(b)(ii) of the Act was engaged. That inference is supported by the combined force of a number of features of the Authority’s reasons.

59    First, the Authority’s reasons at [10] to [12] refer to the credibility of the information provided by the appellant himself, and at [12] the Authority stated that it had significant concerns about the credibility of that information and documents that the appellant had sought to provide to the Authority. By way of contrast, no reference to credibility appears in paragraph [15] of the Authority’s reasons in relation to the children’s statements.

60    Second, paragraph [14] of the Authority’s reasons addresses the credibility of claims in the wife’s statement about the visits by the TMVP to the family home. The Authority considered that this information was consistent with a statement made at the end of her entry interview and was therefore not new information. No other consideration is given to the wife’s statement, and in particular, there is no reference to her claims in relation to the attempted abduction of the children.

61    Third, paragraph [15] of the Authority’s reasons refers to the children’s statements. While there is a reference to the appellant having not satisfied the Authority as to the matters in s 473DD(b), there is no express reference to any consideration of the credibility of the information in the statements. The reference to s 473DD(b) is explicable by the Authority’s statement that there was no explanation why the issues were not raised in the statements of the appellant or his wife or at the interview, which would be relevant to the pre-condition in s 473DD(b)(i). Even then, that would have to be reconciled with paragraph [37] of the Authority’s reasons where it records that at the end of the interview, the appellant stated that he was scared for his children because the TMVP kidnaps children.

62    Fourth, the Authority’s statement in paragraph [37] of its reasons that the appellant had not provided any further information or evidence about the claim that TMVP attempted to kidnap his children is consistent with the Authority not having considered the credibility of the information for the purposes of evaluating whether the pre-condition in s 473DD(b)(ii) was satisfied.

63    Fifth, I consider that if the credibility of the claims in the children’s statements had been evaluated, then on the assumption that the Authority had determined to provide reasons for its decision that s 473DD precluded consideration of the information, one would expect to see consideration of that topic.

64    Sixth, in evaluating paragraph [15] of the Authority’s reasons, it is relevant to take account of the error in paragraph [37] of the Authority’s reasons that I have identified above, which I consider to be a striking error. Any benefit of the doubt that the Authority might have been given on the question whether it had considered the pre-condition in s 473DD(b)(ii) is forfeited: cf, John Fairfax Publications Pty Ltd v Rivkin (2003) 201 ALR 77 at [5]-[6], noting the reference by Gleeson CJ to “the thirteenth stroke of a clock: not only wrong in itself; but such as to cast doubt on everything that went before”, citing Thomas Hardy’s Far From the Madding Crowd. Acknowledging the absence of a statutory requirement to furnish reasons in relation to determining whether the preconditions in s 473DD of the Act are engaged, the failure in this case to direct attention to the credibility of the information in the statements of the eldest children and the appellant’s wife concerning attempts to kidnap the children is exposed by the reasons that have been given: Soliman v University of Technology, Sydney (2010) 207 FCR 277 at [55].

65    The pre-conditions in s 473DD(a) and (b) are cumulative, so that both must be engaged in order that the Authority may consider new information given by a referred applicant: Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 353 ALR 600 at [31]. The Authority’s failure to consider whether the information in the statements concerning the attempted abduction of the children was credible had the consequence that the Authority’s consideration of the pre-conditions in s 473DD(b) miscarried. In considering whether exceptional circumstances existed for the purposes of s 473DD(a), the Authority was required to consider all relevant circumstances: Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110 at [51]. Had the Authority considered that the new information was credible, that may have been relevant to whether it considered that exceptional circumstances existed for the purposes of s 473DD(a). And had the information been considered, the Authority may have come to a different conclusion in relation to the appellant’s credibility and in relation to his claims in support of his application for a protection visa. On this ground, there was a constructive failure to exercise jurisdiction of the same order as that identified by White J in BVZ16 v Minister for Immigration and Border Protection (2017) 254 FCR 221 at [47], which was approved by the Full Court in Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111 at [102].

Conclusions

66    The application for leave to file an amended notice of appeal is granted. The appellant has leave to rely on the grounds in the amended notice of appeal. The appeal will be allowed. I will make orders for constitutional writs to issue quashing the Authority’s decision and requiring that the Authority undertake its review of the appellant’s referred application again according to law. I will hear the parties on the question of costs.

Associate:

Dated:    12 February 2019