FEDERAL COURT OF AUSTRALIA

FIP17 v Minister for Immigration and Border Protection [2019] FCA 99

ORDERS

THE COURT ORDERS THAT:

1.    The time within which the applicant may bring the application for leave to appeal is extended to 5 June 2018.

2.    The applicant have leave to rely upon the amended ground of appeal in the draft amended notice of appeal annexed to the applicant’s submissions dated 9 November 2018 to the extent that it concerns the Authority’s consideration of the LTTE Intelligence Information.

3.    The appeal is allowed.

4.    The orders of the Federal Circuit Court made 16 May 2018 are set aside.

5.    A writ of certiorari issue quashing the decision of the second respondent dated 1 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    This is an application for leave to appeal a decision of the Federal Circuit Court of Australia given 16 May 2018 which dismissed the applicant’s application to that court seeking judicial review under s 476 of the Migration Act 1958 (Cth) of a decision of the Immigration Assessment Authority (the Authority). The application was dismissed in the exercise of power under r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) upon an application to show cause. Under r 44.12(2) of the Federal Circuit Court Rules, a dismissal under r 44.12(1)(a) is interlocutory, and therefore leave to appeal is required: Federal Court of Australia Act 1976 (Cth), s 24(1A).

2    The application for leave to appeal was required to be filed within 14 days of the decision: Federal Court Rules 2011 (Cth), r 35.13. On 5 June 2018, the applicant filed an application for an extension of time within which to seek leave to appeal, and for leave to appeal. The application for an extension of time was supported by an affidavit of the applicant which deposed to a misunderstanding that the applicable time limit was 21 days. The Minister did not oppose the application for extension of time. The Minister otherwise opposed a grant of leave to appeal. The Authority filed a notice submitting to any order of the Court, save as to costs.

3    At the hearing I indicated to the parties that the application for leave to appeal should be fully argued, as if on appeal: Phoenix Institute of Australia Pty Ltd v Australian Competition and Consumer Commission [2017] FCAFC 155 at [41]-[42], citing Samsung Electronics Co Ltd v Apple Inc [2013] FCAFC 138 at [21]. The parties were content with this course, and accepted that if leave to appeal were given I might proceed to determine the appeal.

4    The application for leave to appeal raised an underlying issue concerning the application of s 473DD of the Migration Act, and whether the Authority fell into jurisdictional error in determining not to consider new information submitted on behalf of the applicant, and whether the Federal Circuit Court was in error in dismissing the applicant’s application to that Court.

Background

5    The applicant is a citizen of Sri Lanka of Tamil ethnicity who arrived in Australia in October 2012 after a boat on which he was travelling from Indonesia was intercepted.

6    In August 2016 the applicant made an application for a Safe Haven Enterprise Visa. On 6 February 2017 a delegate of the Minister refused the application for the visa on the ground (inter alia) that the applicant was not a person in respect of whom Australia had protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Migration Act.

7    As the delegate’s decision was a “fast track reviewable decision” for the purposes of Part 7AA of the Migration Act, the delegate’s decision was referred to the Authority as required by s 473CA of the Act.

The Authority’s decision

8    On 1 November 2017, the Authority determined to affirm the decision of the delegate not to grant the applicant a visa. It was this decision in respect of which the applicant sought judicial review in the Federal Circuit Court.

9    In support of his application for a visa the applicant stated that he feared returning to Sri Lanka. The applicant stated that he had left Sri Lanka because he was being threatened, beaten and tortured by the Sri Lankan authorities because they suspected that he was involved with the Liberation Tigers of Tamil Eelam (LTTE).

10    Based on his generally consistent evidence of the incidents, the supporting documents, and the country information, the Authority accepted many factual elements of the applicant’s claims. The claims that the Authority accepted included the applicant’s displacement in Sri Lanka, his transfer between different camps, interrogations and beatings by the Sri Lankan Army (SLA), threats by the SLA that he would be killed, torture during questioning, and further questioning and harassment by the Sri Lankan Navy. These events occurred largely in 2009. The applicant claimed that the object of the interrogation, threats, and torture was to ascertain the applicant’s involvement with the LTTE. The Authority accepted that in 2010, the applicant was detained, taken to a camp, and beaten with a stick on suspicion that he had been involved with the LTTE. At this time he was also constantly harassed by SLA officials, interrogated, further threatened, and demands for money made. The applicant stated that in September 2010 he decided to leave Sri Lanka, because he feared he would be captured and interrogated again, and he was terrified that he would be subject to further violence or death at the hands of the SLA.

11    In 2010, the applicant left Sri Lanka for Malaysia. The applicant claimed that while he was in Malaysia his friends told him that the SLA came and asked after his whereabouts in a village in Sri Lanka, and that his sister told him that in June 2014 the Criminal Investigation Department had visited his family home, enquired where he was, and forced his family to give them a photo of him. The Authority accepted that while he was in Malaysia, the SLA came and asked his friends in the village as to the applicant’s whereabouts. However, the Authority did not consider it plausible that the authorities would wait almost four years after the applicant left Sri Lanka to ask his family where he was and to seize a photo, and then make no further enquiries about him after June 2014.

12    A material element of the applicant’s claim in relation to his involvement with the LTTE was that he was employed in a hardware shop from 1996 to 2002, and then between 2002 and 2008 he ran his own hardware shop in an area that was controlled by the LTTE. The Authority accepted that the majority of the applicant’s customers were officials from the LTTE, and that he supplied timber, paint and hardware to LTTE educational, sporting and cultural organisations in the area. The Authority also accepted that during interrogation the applicant told the SLA that when he had his hardware shop he sold most of his goods to the LTTE.

13    The Authority affirmed the delegate’s refusal to grant the applicant a visa. It did so on a number of grounds which it explained at length in its reasons, including reliance on UNHCR Guidelines, and reliance on information from the Department of Foreign Affairs and Trade that –

… Sri Lankans face a low risk of mistreatment that can amount to torture, mostly perpetrated by the police, irrespective of their religion, ethnicity, geographical location or other identity; that the incidence of torture has reduced in recent years; and that the allegations of torture pertain to a relatively small number of cases compared to the total population.

14    The Authority stated that it was satisfied that the applicant would not face a real chance of persecution due to any links to the LTTE, for any imputed political opinion, as a Tamil male from the Northern Province, if he returned to Sri Lanka, now or in the reasonably foreseeable future. The Authority also rejected the application on complementary protection grounds.

New information

15    The Migration Act imposes restrictions on the capacity of the Authority to consider “new information”. Section 473DB sets out a 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. Section 473DD mandates that the Authority must not consider new information unless 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.

16    What amounts to “new information” is informed by s 474DC of the Act –

473DC        Getting new information

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

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

  (b)    the Authority considers may be relevant.

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

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

  (a)    in writing; or

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

17    In Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 353 ALR 600, Gageler, Keane and Nettle JJ stated at [24] in relation to “new information” –

The term “new information” must be read consistently when used in ss 473DC, 473DD and 473DE as limited to “information” (which may or may not be recorded in a document), in the ordinary sense of a communication of knowledge about some particular fact, subject or event, that meets the two conditions set out in s 473DC(1)(a) and (b). The first is that the information was not before the Minister or delegate at the time of making the decision to refuse to grant the protection visa. The second is that the Authority considers that the information may be relevant.

(footnote omitted)

18    The condition set out in s 473DD(a) of the Act, namely that the Authority is satisfied that there are exceptional circumstances to justify considering the new information, must always be met before the Authority can consider any new information: Plaintiff M174/2016 at [29]. As to what are “exceptional circumstances”, Gageler, Keane and Nettle JJ stated –

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

(footnote omitted)

19    As to the conditions set out in s 473DD(b)(i) and (ii) Gageler, Keane and Nettle JJ stated –

[31]    Cumulatively upon the precondition set out in s 473DD(a) that the Authority must be satisfied that there are exceptional circumstances to justify considering new information, s 473DD(b) sets out a further precondition that must also be met before the Authority can consider new information that is given to it, or proposed to be given to it, by the referred applicant. In respect of new information within that category, the Authority must be satisfied of one or other of the circumstances set out in s 473DD(b)(i) and (ii).

20    In relation to the condition in s 473DD(b)(ii) that the information “was not previously known”, Gageler, Keane and Nettle JJ held at [33] that as a result of legislative history, the reference to personal information which was not previously known encompasses personal information which, although previously known to the referred applicant, was not previously known to the Minister, affirming the correctness of the Full Court’s decision to this effect in Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111 at [106].

21    Relevant to this application for leave to appeal, the applicant had submitted to the Authority two particular items of “new information” that the Authority determined that it was unable to consider. Those two items of information concerned the extent of the applicant’s involvement with the LTTE, and the current significance of that information. The submission to the Authority made on behalf of the applicant included the following –

[FIP17] has previously disclosed he frequently sold goods to the LTTE when he worked at his hardware shop. However [FIP17] did not fully disclose his involvement with the LTTE during this period. As well as his supply of hardware goods [FIP17] advises he was requested to have letters from LTTE intelligence sent to his hardware shop which the LTTE would then collect from him. This began approximately six months after he opened the hardware shop. In return [FIP17] was not required to join the LTTE as an active member.

This information has previously not been disclosed as [FIP17] was fearful of discussing the ways he assisted the LTTE at this time. He had been warned in Indonesia by fellow asylum seekers not to disclose that he had taken part in assisting the LTTE intelligence network as he may face detention in Australia. This fear was exacerbated by his knowledge of the detention of Tamil asylum seekers with links to the LTTE in 2009. [FIP17] acknowledges he has made a mistake in not disclosing this information sooner and apologises for his error. He realises that his review at the IAA is his last opportunity to have the merits of his matter considered. [FIP17] discussed at the Protection Visa Interview (PVIV) that he supplied the hardware goods to an LTTE member named [Person A]. A friend who also works in the area has since advised that [Person A] has been captured by the SLA and that [Person A]’s wife has been openly discussing [FIP17]’s involvement with the LTTE including his receiving letters on their behalf and its now public knowledge within the community. Our client is fearful of the authorities finding out about his assistance of the LTTE, which considering the arrest of [Person A] and also his wife’s disclosures to the community is a likely event now.

We submit that this new information does fit within the exceptions to the consideration of new information by the IAA, as set out in s 473DD of the Act for the following reasons, as it is credible personal information that was not previously known and, had it been known, may have affected the consideration of [FIP17]’s claims because it provides further reason why [FIP17] would be of ongoing adverse interest to the authorities. Secondly, we submit that there are exceptional circumstances to justify considering the new information because the new information demonstrates that he has provided support and been implicated in LTTE activities at a higher level than previously disclosed.

22    The applicant’s submission to the Authority thus identified the new information as being –

(a)    the applicant’s involvement in acting as a “letter drop” for the LTTE when he was operating his hardware shop (the LTTE Intelligence Information); and

(b)    the information about the claimed capture of Person A, and that Person A’s wife had been openly discussing the applicant’s involvement with the LTTE (the Person A Information).

23    The Authority gave reasons for its decision not to consider these two items of new information –

[6]    As to the new claim relating to his involvement with the LTTE, the applicant claims that besides his previously disclosed frequent sale of goods to the LTTE when he worked at his hardware shop he now claims six months after he opened his hardware shop (2002) he was requested and agreed to allow LTTE intelligence to send letters and collect letters from his shop. He says this information was not previously disclosed because he was fearful of discussing ways he assisted the LTTE at the time and he had been warned in Indonesia (2012) by fellow asylum seekers not to disclose that he had assisted the LTTE intelligence network as he may face deportation from Australia. He realises he made a mistake, apologises and realises the IAA review is his last opportunity to have the merits considered. He also claims that a friend has told him that a LTTE member who he discussed at the SHEV interview, [Person A], has been captured by the authorities and [Person A]’s wife is openly discussing the applicant’s involvement with the LTTE including his receiving letters and it is now public knowledge within the community. It was submitted that it was credible personal information that was not previously known and if known may have affected consideration of his claims because it provides further reason why the applicant would be of ongoing interest to the Sri Lankan authorities. It was submitted there were exceptional circumstances to justify considering the new information because it demonstrates he has provided support for and been implicated in LTTE activities at a higher level than previously disclosed.

[7]    The new information about the letter drop at his hardware shop predates the delegate’s decision by a number of years. The related information about [Person A]’s capture and his wife’s exposure of the applicant concerns events that post-date the delegate’s decision. As to the letter drop, at the SHEV interview the delegate explained to the applicant that if he did not give the Department all relevant information and his application is refused he may not have another chance to provide further information. At that interview the applicant and the delegate discussed, among other things, his connection to the LTTE through his hardware shop. The delegate informed the applicant at the end of the interview that if he provided further information prior to a decision being made it would be considered and the applicant’s representative subsequently provided further information, including some new claims, as well as detailed submissions. The applicant was represented when preparing his SHEV application and throughout the SHEV interview. The applicant has not explained how or why his fear of disclosing his involvement with LTTE intelligence has now changed. Additionally, although the new information is personal information, the applicant has not satisfied me that it is credible. It is not credible that the applicant would not have previously mentioned the letter drops that started some 15 years ago if they were true. It is also not credible that the LTTE would need to use a letter drop facility in a hardware shop when the area was at all those times under the LTTE’s control. Further, I do not consider it coincidental that the capture of [Person A] and his wife’s exposure of the applicant is claimed to have occurred after the delegate’s decision. Additionally, I do not consider it credible that after [Person A]’s capture his wife would publicly speak about the applicant’s activities, given it would further implicate [Person A] due to his connection to the applicant through the hardware shop. His claims about the recent events surrounding [Person A]’s capture and his wife’s actions could not have been provided to the delegate before the decision was made; however the applicant has not satisfied me that this new information is credible and I am not satisfied that there are exceptional circumstances to justify considering it.

The application to the Federal Circuit Court

24    Relevant to the application for leave to appeal to this Court is ground 2 of the applicant’s amended application to the Federal Circuit Court, but I shall set out both grounds of review at first instance for context –

(1)    The IAA fell into jurisdictional error in failing to carry out its statutory task of review in a legally reasonable way it would have had to consider acting under s 473DC (see: Minister for Immigration v CRY16 [2017] FCAFC 210).

Particulars

(a)    On 21 March 2017 the applicant’s representative submitted a submission and further information consisting of:

(i)    A new claim in relation to the extent of the applicant’s involvement with the LTTE;

(ii)    A new claim in relation to his participation and witness testimony given in 2014 to the International Crimes Evidence Project (ICEP) and a copy of a ICEP witness acknowledgement documents; and

(iii)    Further details about his relationship with his cousin who was a Major in the LTTE.

(b)    At [7] the IAA held that the applicant has not explained how or why his fear of disclosing his involvement with the L TTE has now changed and this claim pre-dates the delegate’s decision by 15 years. Additionally, although the new information is personal information, the applicant had not satisfied the IAA that it was credible.

(c)    At [7] the IAA held that it did not consider it coincidental that the capture of [Person A] and his wife’s exposure of the applicant is claimed to have occurred after the delegate’s decision and was not satisfied that the new information was credible.

(d)    At [9] the IAA held that the new claims that he gave evidence to the ICCEP on torture he was subjected to and killing he witnessed in Sri Lanka pre-dated the delegate’s decision by more than 2 years and the IAA was not satisfied that it personal information.

(e)    At [11] the IAA held that further details about the applicant’s relationship with his cousin pre-dated the delegate’s decision and was not credible personal information.

(f)    The IAA fell into jurisdictional error in acting in a legally unreasonable way in failing to consider exercising its discretion under s473DC (3) and invite the applicant in writing to comment on these reasons to find that the new claims and further information could have been provided to the delegate before making the decision and that the new claims and information were not credible personal information.

(2)    The IAA fell into jurisdictional error by adopting an unduly narrow construction of s 473DD by confining its determination of the new information to whether or not the application provided an explanation in accordance with the Practice direction 1. At [7]-[11] the IAA reasoned that a failure to provide an explanation was determinative of the matters set out in s 473DD. In doing so, it constructively failed to exercise its jurisdiction under s 473DD.

Particulars

(a)    On 21 March 2017 the applicant’s representative submitted a submission and further information consisting of:

(i)    A new claim in relation to the extent of the applicant’s involvement with the LTTE;

(ii)    A new claim in relation to his participation and witness testimony given in 2014 to the International Crimes Evidence Project (ICEP) and a copy of a ICEP witness acknowledgement documents; and

(iii)    Further details about his relationship with his cousin who was a Major in the LTTE.

(b)    At [7] the IAA held that the applicant has not explained how or why his fear of disclosing his involvement with the LTTE has now changed and this claim pre-dates the delegate’s decision by 15 years. Additionally, although the new information is personal information, the applicant had not satisfied the IAA that it was credible.

…

25    Within the court book before the Federal Circuit Court was a copy of the Authority’s Practice Direction dated 6 February 2017 which had been provided to the applicant, which stated (inter alia) –

24.    If you want to give us new information, you must also provide an explanation in writing as to why:

•    the information could not have been given to the Department before the decision was made, or

•    the information is credible personal information which was not previously known and may have affected consideration of your claims, had it been known.

26    In the Federal Circuit Court the proceeding was fixed for a show cause hearing pursuant to r 44.12 of the Federal Circuit Court Rules. The applicant was unrepresented at the hearing. The primary judge held that the applicant’s amended application failed to disclose any reasonably arguable case of jurisdictional error, and that it was an appropriate matter in which to exercise the Court’s powers under r 44.12 of the Rules to dismiss the proceeding. As to ground 2 of the applicant’s amended application, the primary judge held –

[29]    In relation to ground 2, on the face of the material before the Court and the reasons given by the Authority in paragraphs 7, 9 and 11, it is clear that the Authority took into account both limbs of s 473DD of the Act and the significance of the new information and did not adopt an erroneously narrow meaning of exceptional circumstances. The Authority in those paragraphs gave extensive consideration to the arguments advanced by the applicant as to the nature of the new information, whether it was credible personal information and whether there were exceptional circumstances to justify considering the new information. No arguable case of jurisdictional error is disclosed by ground 2 of the amended application.

The application for leave to appeal

The proposed ground of appeal

27    At the hearing of the application for leave to appeal to this Court the applicant was represented by counsel. In written submissions counsel formulated a proposed ground of appeal as follows –

The learned Primary Judge failed to consider whether [the Authority] fell into jurisdictional error by an erroneous construction of s 473DD in that it failed to consider the new information in accordance with the law, failed to consider explanations and reasons advanced by the Appellant and adopted an unduly narrow construction of s 473DD. In doing so, it constructively failed to exercise jurisdiction under s 473DD.

28    The proposed ground of appeal contained some particulars, which it is unnecessary to set out. During the course of argument, counsel for the applicant confined the proposed ground of appeal to the two items of new information referred to at paragraph [22] above.

29    Counsel for the Minister submitted that because this ground as formulated was a little different from the corresponding ground that had been before the primary judge, leave was required for that reason, in addition to the leave required under s 24(1A) of the Federal Court of Australia Act on account of the decision of the primary judge being interlocutory.

Submissions on behalf of the applicant

30    Counsel for the applicant submitted that with respect to the LTTE Intelligence Information, the Authority failed to consider whether there were exceptional circumstances for the purposes of s 473DD(a) applied.

31    Further, as to s 473DD(b)(i), counsel submitted that the applicant had given an explanation to the Authority as to why the LTTE Intelligence Information could not have been made available to the Minister prior to the decision, namely that: (i) he was fearful of discussing the ways in which he assisted the LTTE at the time; (ii) he had been warned in Indonesia by fellow asylum seekers not to disclose that he assisted the LTTE because that may lead to detention in Australia; and (iii) his fear was exacerbated by personal knowledge of the detention of Tamil asylum seekers with links to the LTTE in 2009. Counsel submitted that the applicant had acknowledged to the Authority that he had made an error in not disclosing the LTTE Intelligence Information, and had stated that the reason for the change of mind was the realisation that the review by the Authority was his last opportunity to have the merits of his matter considered. Counsel submitted that the Authority was therefore in error in finding at [7] of its reasons that “the applicant has not explained how or why his fear of disclosing his involvement with LTTE has now changed”, and had not given consideration to the applicant’s explanation for the purposes of s 473DD(b)(i). Counsel submitted that, in turn, this infected the Authority’s decision that exceptional circumstances did not exist for the purpose of the LTTE Intelligence Information.

32    In relation to the Person A Information, counsel submitted that the Authority erred in its construction of s 473DD with respect to that information in the following ways: (i) it dealt with the alternative matters in s 473DD(b)(i) and (ii) as if the matters were cumulative rather than alternatives; (ii) having accepted that the Person A Information post-dated the delegate’s decision, it failed to recognise that condition (b) was satisfied; and (iii) it adopted a narrow construction of “exceptional circumstances” and failed to consider the reason advanced by the applicant in support of his assertion that there were exceptional circumstances to justify considering the Person A Information. Counsel submitted that it was on the basis that the information was not credible that the Authority erroneously concluded that it was not satisfied that were exceptional circumstances to justify considering it. In this respect, counsel for the applicant relied on a passage from the reasons for judgment of Derrington J in CIH16 v Minister for Immigration and Border Protection [2018] FCA 1317 at [45] –

If the information in question has the characteristic that it could not have been provided to the Minister previously or is credible personal information not previously known that might affect the decision, it would, in nearly all scenarios, add to the conclusion that it is “out of the ordinary” or “unusual”.

33    Counsel for the applicant cited the above passage in its full context, which included Derrington J’s quotation of paragraph [14] of the reasons for decision of the Full Court in AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111 -

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

34    Counsel for the applicant further submitted that the Authority adopted an inappropriately narrow construction of “exceptional circumstances” in s 473DD(a), in that it had not considered other reasons proffered by the applicant as to why the new information should be considered pursuant to s 473DD. Counsel relied on the applicant’s submission to the Authority (set out under [21] above) that the new information: (i) provided further reasons why the applicant would be of ongoing adverse interest to the authorities in Sri Lanka; and (ii) the new information demonstrated that the applicant had provided support and been implicated in LTTE activities at a higher level than previously disclosed. In this respect, counsel relied on a passage in the reasons for judgment of the Full Court in Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111 at [103] to support a submission that the matters specified in s 473DD(b)(i) and (ii) are not the only matters to be considered by the Authority in determining for the purposes of s 473DD(a) whether it is satisfied that there are exceptional circumstances to justify considering any new information. Underpinning the submissions of counsel for the applicant that the Authority adopted an inappropriately narrow construction of “exceptional circumstances” in s 473DD(a) was the decision of White J in BVZ16 v Minister for Immigration and Border Protection (2017) 254 FCR 221, which was approved by the Full Court in BBS16. In BVZ16 White J stated at [9] –

The requirements of paras (a) and (b) are cumulative but may nevertheless overlap to some extent. The Authority’s satisfaction that the new information could not have been provided to the Minister at the time of the s 65 decision (subpara (b)(i)) may contribute to its satisfaction that there are exceptional circumstances to justify considering the new information. So also may the Authority’s satisfaction that the new information is credible personal information which had not previously been known (subpara (b)(ii)). Accordingly, one would expect the IAA to consider the para (b) matters when considering in a given case whether the circumstances are exceptional. Obviously enough, however, the matters which may contribute to a finding that the circumstances in a particular case are exceptional may extend beyond those specified in subparas (b)(i) and (ii) and it seems improbable that the Authority could be satisfied, by reference to one matter only, that an applicant’s circumstances are not exceptional.

35    White J applied this reasoning in BVZ16 in finding at [47]-[48] that the Authority’s consideration of the requirement of s 473DD(a) was too narrow, because it confined its evaluation of “exceptional circumstances” to its rejection of the applicant’s explanation for not having disclosed the information earlier.

36    The decision in BVZ16 was approved by the Full Court in BBS16 at [102] –

We are unpersuaded by the Minister’s contentions that in BVZ16 White J misconstrued or misapplied the term “exceptional circumstances” under s 473DD. We respectfully agree with his Honour’s reasons for concluding that the IAA in that case adopted an inappropriately narrow understanding of that phrase. In particular, we agree with his Honour’s findings and reasons that the requirements of subparas (a) and (b) of s 437DD are cumulative but may nevertheless overlap to some extent, with the effect that the IAA’s consideration of either or both of the limbs in subpara (b) may inform the IAA’s satisfaction under subpara (a) as to whether there are exceptional circumstances to justify considering the new information.

37    The reasons of White J in BVZ16 have received further favourable consideration in CHF16 v Minister for Immigration [2017] FCAFC 192, and Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110. In AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111 at [14] the Full Court clarified that –

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

Submissions on behalf of the Minister

38    Counsel for the Minister submitted that the terms of s 473DD do not constitute a “code” that must be invariably followed, and relied on the decision of the Full Court in AQU17 at [13]-[14]. Counsel submitted that there is no statutory mandate that requires consideration of the limbs in s 473DD(a), (b)(i) or (b)(ii) in any particular order, or that requires separate consideration of the matters in (a) as well as in (b)(i) or (b)(ii), or vice versa. Counsel submitted that the matters in s 473DD(b)(i) and s 473DD(b)(ii) are not, in any sense, mandatory relevant considerations for the purposes of considering s 473DD(a).

39    Counsel submitted that the reasons of the Authority also need to be assessed by reference to s 473EA(1)(b), which provides that the Authority must make a written statement that “sets out the reasons for the decision”, where the word “decision” has been held to refer to the decision on the review, and not to procedural decisions made in the course of the review: BVD17 v Minister for Immigration and Border Protection [2018] FCAFC 114 at [47]. Counsel relied on the decision of Bromwich J in CVS16 v Minister for Immigration and Border Protection [2018] FCA 951 at [29]-[40] who held that there was no obligation on the Authority to give reasons in respect of the discretion in s 473DD, and that there was therefore no jurisdictional error in not doing so. These decisions were relied upon to support a submission that it is “difficult to draw an inference that the decision has been attended by an error of law, from what has not been said by [the Authority]”: Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 at [25]; cf, CIH16 v Minister for Immigration and Border Protection [2018] FCA 1317 at [41].

40    Counsel drew attention to the chapeau to s 473DD(b) which is engaged if the “referred applicant satisfies the Authority” (emphasis added) that, in relation to any new information the pre-conditions in (b)(i) or (b)(ii) are met. Counsel submitted that although in this particular statutory setting there is, strictly speaking, no onus or burden, the words of the chapeau at least call for some material by way of explanation: AUH17 v Minister for Immigration and Border Protection [2018] FCA 388 at [33] per Mortimer J. In AUH17, Mortimer J held that in circumstances where the referred applicant had not put any express material before the Authority to explain why he was relying on new information, the Authority was not in error to identify s 473DD(b) as not satisfied, and that this was enough to trigger the prohibition in s 473DD.

41    Counsel submitted that the Court should not construe the Authority’s reasons minutely or with an eye keenly attuned to the perception of error, and that the Court should avoid over-zealous scrutiny so as to avoid the risk of a reconsideration of the merits of a decision: Minister far Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272. Counsel submitted that this exhortation had particular force bearing in mind the evaluative nature of the Authority’s determination of whether there were exceptional circumstances for the purposes of s 473DD(a). I will have regard to these principles in my evaluation of the Authority’s reasons.

42    Counsel for the Minister took the Court carefully through paragraphs [6] and [7] of the Authority’s reasons, and to the relevant passages from the applicant’s submissions to the Authority, which I have set out at paragraphs [21] and [23] above. In relation to the statement in paragraph [7] of the Authority’s reasons that the applicant had not explained how or why his fear of disclosing his involvement with LTTE intelligence had now changed, counsel accepted that there was a sentence in the applicant’s submission to the Authority that stated, “He realises that his review at the IAA is his last opportunity to have the merits of his matter considered.” Counsel submitted that this pointed towards, but did not fully explain the issue which the Authority identified. Counsel submitted that the Authority considered this to be an insufficient explanation.

43    Counsel for the Minister then submitted that, upon the hypothesis that it was open to find that the Authority had not considered the applicant’s explanation as to how or why his fear of disclosing his involvement with LTTE intelligence had now changed, the Authority also was not satisfied that the LTTE Intelligence Information was credible.

44    In relation to the Person A Information, counsel for the Minister acknowledged that there was apparent tension between the Authority’s statement in paragraph [7] of its reasons that “I do not consider it coincidental that the capture of [Person A] and his wife’s exposure of the applicant is claimed to have occurred after the delegate’s decision”, and the Authority’s later statement in paragraph [7] that “[h]is claims about the recent events surrounding [Person A]’s capture and his wife’s actions could not have been provided to the delegate before the decision was made”. However, counsel submitted that it was unlikely that the Authority had misunderstood the position so as to make inconsistent findings, and that the tension may be resolved if the reference to lack of coincidence is understood as being referrable to the act of the friend who raised the matter with the applicant rather than to the applicant’s claim.

45    Counsel for Minister highlighted the Authority’s finding that it did not find the Person A Information credible to the extent that it suggested that after Person A’s capture his wife would publicly speak about the applicant’s activities because it would further implicate Person A. Counsel then relied on the last sentence of paragraph [7] of the Authority’s reasons and submitted that the Authority was not making a finding about both limbs of s 473DD(b)(i) and (ii), but in any case, the new information failed to engage s 473DD(a) because the broader circumstances of the case indicated that the information was not probative. On this analysis, counsel submitted, even if the Court considered there to be error in relation to the Authority’s consideration of s 473DD(b)(i), the applicant had failed to satisfy the Authority as to the pre-condition in s 473DD(a).

46    Counsel for the Minister submitted that by extension, although the primary judge’s reasons were brief, His Honour did not fall into error in dismissing the application to the Federal Circuit Court.

Consideration

Extension of time

47    In relation to the application for extension of time within which the applicant was required to file an application for leave to appeal, the delay in filing the application was less than a week, and I accept the applicant’s explanation for the delay. As I indicated in paragraph [2] above, the Minister did not oppose the application for an extension of time. I will therefore extend time for the applicant to file the application for leave to appeal.

Leave to appeal

48    In relation to the application for leave to appeal, there are two issues which attract overlapping considerations: (i) leave to rely on a new argument; and (ii) leave to appeal because the order of the Federal Circuit Court was interlocutory.

Leave to rely on a new argument

49    As I noted at [29] above, the Minister submitted that the proposed ground of appeal was a little different from the corresponding ground of review that was before the Federal Circuit Court. Counsel for the applicant submitted that the proposed ground of appeal was the second ground of review before the Federal Circuit Court “as slightly amended”.

50    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. In relation to judicial review of migration decisions such as the decision the subject of this application, the different functions of the Federal Circuit Court and this Court are the product of the provisions of Part 8 of the Migration Act, as the following observations of Perram J in AAM15 v Minister for Immigration and Border Protection (2015) 231 FCR 452 at [14] emphasise –

One is confronted, then, with the situation that this Court is being called upon in the exercise of its appellate jurisdiction to decide the entirety of the matters which were for trial, including two new grounds, in circumstances where none of the issues to be decided in this Court were ever decided in the Court below. Section 476A of the Act explicitly removes this Court’s original jurisdiction in cases of this kind. Of course, the ability of this Court to hear fresh grounds of appeal or to entertain a notice of contention is not circumscribed by s 476A as they are both aspects of the Court’s appellate jurisdiction. But s 476A is, I think, relevant to whether I should, by leave, permit fresh grounds and a notice of contention when to do so will mean that this Court performs the trial court’s entire function. As a matter of substance, that is what s 476A appears aimed at preventing. There is this further matter, too: Pt 8 of the Act, which regulates judicial review of refugee determinations, ensures that there is one substantive trial in the Federal Circuit Court followed by one substantive appeal to this Court followed by a more cursory review by the High Court. If this Court, in substance, determines a case at first instance by entertaining fresh grounds and a notice of contention this structure is thwarted because no appeal lies to the High Court other than by special leave which is rarely granted and then only on the grounds set out in s 35A of the Judiciary Act 1903 (Cth). If the matter is effectively tried in this Court then the appellant is denied a layer of appellate scrutiny.

51    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]. In this case, there is the further consideration that the decision in respect of which leave to appeal is sought arose out of a show cause hearing under r 44.12 of the Federal Circuit Court Rules. At the hearing of such an application, r 44.13(1) confines an applicant to the relief sought and the grounds mentioned in the application: see SZTOX v Minister for Immigration and Border Protection [2015] FCAFC 77 at [20]-[21] and [25]. No application was made to amend the grounds of review that were before the Federal Circuit Court: cf, Teoh v Minister for Immigration (1994) 49 FCR 409 at 411, 416-7, 428-9.

52    The applicant was unrepresented at the hearing before the primary judge. It appears from paragraph [27] of the primary judge’s reasons that at the hearing the applicant did little more than invite the primary judge to engage in an impermissible merits review, and that nothing said by the applicant was directed to the identification of jurisdictional error.

53    The focus of the relevant ground of review before the primary judge, which I have set out under paragraph [24] above, was a contention that in determining whether the Authority should consider new information in accordance with s 473DD, the Authority confined itself to stating that the applicant had not provided an explanation in accordance with the Practice Direction, and thereby constructively failed to exercise its jurisdiction under s 473DD. In the particulars of the ground, express reference is made to the Authority’s finding that the applicant had not explained how or why his fear of disclosing his involvement with the LTTE has now changed, which was a focus of the submissions made on behalf of the applicant before this Court.

54    The reasons of the primary judge in relation to ground of review 2, which I have set out under paragraph [26] above, include the statement that, “[t]he Authority gave extensive consideration to arguments advanced by the applicant as to the nature of the information, whether it was credible personal information and whether there were exceptional circumstances to justify considering the new information”. That statement is necessarily challenged by the applicant, because the applicant submits that the Authority had incorrectly stated that the applicant had not explained how or why his fear of disclosing his involvement with the LTTE had changed.

55    The proposed ground of appeal has at least a different emphasis from the relevant ground of review that was before the Federal Circuit Court, and in all likelihood is supported by new arguments. However, to the extent that the applicant advances arguments concerning the LTTE Intelligence Information, the proposed ground of appeal remains associated with ground of review 2, which claimed that that the Authority committed jurisdictional error by determining that the applicant had not provided an explanation as to how or why his fear of disclosing his involvement with the LTTE had now changed. I am not satisfied, however, that the arguments that were advanced in relation to the Person A Information were within the grounds of review that were before the primary judge, even on a beneficial view of those grounds.

56    To the extent that the proposed ground of appeal related to the LTTE Intelligence Information, it concerns the correct interpretation of the Authority’s reasons, and the correctness of the primary judge’s conclusions in respect of those reasons: cf, ,Coulton v Holcombe (1986) 162 CLR 1 at 8; O’Brien v Komesaroff (1982) 150 CLR 310 at 319. The Minister did not submit that any specific prejudice would arise if the applicant were permitted to rely on the proposed ground of appeal. Although no specific explanation as to the presentation of the applicant’s case before the Federal Circuit Court was in evidence on this application, it is clear that the involvement of counsel in presenting the applicant’s case before this Court has led to the formulation of the proposed ground of appeal. For the reasons that I shall develop further, I consider that the proposed ground has merit. In these circumstances, the interests of justice favour allowing the applicant to rely upon the proposed ground of appeal to the extent that it concerns the Authority’s consideration of the LTTE Intelligence Information.

Leave to appeal an interlocutory order

57    The applicant also requires leave under s 25(1A) of the Federal Court of Australia Act on the ground that the decision of the primary judge was interlocutory. As the Full Court explained in Decor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-400, relevant questions for the Court in considering an application for leave to appeal are whether in all the circumstances the decision below is attended by sufficient doubt to warrant it being reconsidered, and whether substantial injustice would result if leave were to be refused, supposing the decision below to be wrong. I am satisfied that there would be substantial injustice if the decision of the Federal Circuit Court were shown to be wrong, and as I have said, I consider that the proposed ground of appeal to the extent that it concerns the Authority’s consideration of the LTTE Intelligence Information has merit. To that extent, the applicant should have leave to appeal the decision of the primary judge.

The ground of appeal

58    It is necessary to identify the Authority’s path of reasoning at paragraphs [6] and [7] of its reasons, which are set out under [23] above, in order to evaluate the submissions of the parties. The Authority’s path of reasoning in relation to the LTTE Intelligence Information is as follows –

(a)    the Authority stated that the applicant had not explained how or why his fear of disclosing his involvement with LTTE intelligence had changed;

(b)    in addition, the Authority was not satisfied that the LTTE intelligence information was credible for reasons including that it was not credible that the applicant would not have previously mentioned the information if it were true; and

(c)    the Authority did not state explicitly whether for the purposes of s 473DD(a) it considered exceptional circumstances existed to justify it considering the LTTE information.

59    I accept the submission put on behalf of the applicant that the Authority did not consider whether there were exceptional circumstances to justify it considering the LTTE Intelligence Information, at least to the extent that the Authority did not expressly address that issue. However, the Authority having stated that the applicant had not given an explanation for his change of position in relation to disclosure of the information, and having stated that it was not satisfied that the information was credible, it is at least open to say that for these reasons the Authority necessarily considered that there were no exceptional circumstances that justified considering the new information. On the other hand, it must be said that the Authority did not expressly address the question of exceptional circumstances in relation to the LTTE Intelligence Information, whereas it expressly addressed the question in relation to the Person A Information. The view I favour is that the Authority did not consider the pre-condition in s 473DD(a) in relation to the LTTE Intelligence Information, because in relation to that information it considered that the further pre-condition in s 473DD(b) was not satisfied, for the reasons that it gave. On the premise that the Authority had correctly determined that neither element of s 473DD(b) was engaged, I do not consider that there would have necessarily been any error in failing to consider whether there were exceptional circumstances in relation to the LTTE Intelligence Information, because the pre-conditions in s 473DD(a) and (b) are cumulative. However, this directs attention to the Authority’s reasoning in relation to the pre-condition in s 473DD(b).

60    I accept the submission of the applicant that the Authority was in error when it stated at [7] of its reasons that the applicant had not explained how or why his fear of disclosing his involvement with LTTE intelligence had changed. The applicant had offered an explanation in his submission to the Authority which had the following elements: (a) the applicant had feared discussing the ways in which he assisted LTTE because he had been warned in Indonesia by fellow asylum seekers not to disclose that he had taken part in assisting LTTE intelligence as he may face detention in Australia, and that fear was exacerbated by his knowledge of the detention of Tamil asylum seekers with links to the LTTE in 2009; (b) the applicant acknowledged that he made a mistake and should have disclosed the information sooner; and (c) he realised that the review by the Authority was his last opportunity to have the merits of his claim considered. As to the submissions by counsel for the Minister that the Authority’s reasons should be read as stating that there was an insufficient explanation, I do not accept that submission. To interpret the Authority’s reasons as amounting to a rejection of the applicant’s explanation would not be consistent with the reasons that the Authority actually gave, which were that the applicant had not given an explanation. It is not material to consider the submission of counsel for the Minister that the Authority had no obligation to give reasons, because the error that I have identified appears from what the Authority has said, rather than what it has not said: cf, Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 at [25].

61    The Authority’s error amounts to a failure to give consideration to a material component of the applicant’s claim that the Authority should consider new information. The Authority’s error was a material error because it could have resulted in a different decision: Hossain v Minister for Immigration and Border Protection (2018) 359 ALR 1 at [31]. It was for the Authority to evaluate the explanation that the applicant had given for not having disclosed the LTTE Intelligence Information earlier. Instead, it proceeded on the basis that no explanation had been given. In my view, this omission affected the Authority’s consideration of whether the information could have been provided to the delegate. The omission to consider the applicant’s reasons for not disclosing the information earlier also had the potential to affect the Authority’s consideration of the credibility of the LTTE Intelligence Information. The Authority stated that it was not credible that the applicant would not have previously mentioned the letter drops if they were true. Had the Authority evaluated the applicant’s reasons for not disclosing the information, and the reasons for his change of position, and accepted the applicant’s explanation, the Authority may well have approached the question of the credibility of the LTTE Intelligence Information differently. I say this in the context of the observation that I made at [10] above that, based on the applicant’s generally consistent evidence of the incidents, the supporting documents, and the country information, the Authority accepted many factual elements of the applicant’s claims. And if the Authority had been satisfied that the LTTE Intelligence Information was credible, that may have affected whether the Authority was satisfied that there were exceptional circumstances to justify considering that information for the purposes of s 473DD(a), a topic on which it made no finding in relation to the LTTE Intelligence Information. For these reasons, the Authority’s error was jurisdictional.

Relief

62    The appeal will be allowed.

63    Upon the demonstration of error in the decision below, this Court has jurisdiction to set the decision aside and to decide for itself the question that was before the Federal Circuit Court: VAAW v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 259 at [8]. Section 28(1)(b) of the Federal Court of Australia Act provides that the Court in the exercise of its appellate jurisdiction may give such judgment, or make such order, as, in all the circumstances, it thinks fit. The questions arising in the application before the Federal Circuit Court did not depend upon any contested evidence, but upon the reasons of the Authority, and the written material that was before the Authority. This Court is therefore in as good a position as the primary judge to determine the application under r 44.12 of the Federal Court Rules. The powers that were exercisable by the primary judge under r 44.12 included the power under r 44.12(1)(c) to make final orders in relation to the claims for relief and grounds mentioned in the application. During the hearing, I raised with counsel the question whether there were any further submissions that they sought to put in the event that the Court determined to deal with the underlying application on a final basis, and counsel indicated that there were no further submissions they would seek to put.

Conclusions

64    The Court will order that the time within which the applicant may bring the application for leave to appeal is extended to 5 June 2018. The draft amended notice of appeal annexed to the applicant’s submissions dated 9 November 2018 shall stand as his notice of appeal, and be taken to have been filed and served. The appeal will be allowed, and the orders of the Federal Circuit Court made 16 May 2018 will be set aside. The Court will order that constitutional writs issue quashing the decision of the Authority, and ordering that the Authority determine the review of the application referred to it under s 473CA of the Migration Act according to law.

65    I will hear the parties on the question of costs.

Associate:

Dated:    12 February 2019