FEDERAL COURT OF AUSTRALIA

ECQ17 v Minister for Immigration and Border Protection [2019] FCA 133

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The Appellant pay the First Respondent’s costs as agreed or assessed.

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

REASONS FOR JUDGMENT

(Revised from Transcript)

KERR J:

1    This is an appeal from a decision of the Federal Circuit Court of Australia (FCCA) dismissing an application for judicial review of a decision of the Immigration Assessment Authority (IAA). The IAA had affirmed a decision of a delegate of the First Respondent (Minister) to refuse the Appellant’s application for a Temporary Protection (subclass XD 785) visa (TPV).

2    The Minister has filed a notice of objection to competency with respect to the appeal. The sole ground of appeal is that:

The Federal Circuit Court judge committed an appealable error. I am trying to get a lawyer to help me in my appeal.

3    In oral submissions, the Appellant did not further particularise the grounds that he sought to raise, and has said nothing in relation to the success or otherwise of his attempts to get a lawyer. The basis of the Minister’s objection to competency of the appeal is that it does not specify the grounds the appellant relies on, contrary to r 36.01(2)(c) of the Federal Court Rules 2011 (Cth) (the Rules).

4    The background to this matter is that the Appellant departed Sri Lanka on 27 September 2012 and arrived in Australia as an Unauthorised Maritime Arrival on 14 October 2012. The Appellant was granted a Humanitarian Stay Visa (temporary) (UJ449) on 29 May 2013 which expired on 5 June 2013. The Appellant was also granted the first of five Bridging E Visas (WE-050) (Bridging Visa). The last of those Bridging Visas was granted on 29 February 2016 and remains in effect while the Appellant seeks review of the decision refusing to grant him a TPV.

5    There are various references in the Appeal Book to the date on which the Appellant lodged his TPV application, but it appears uncontentious that it was lodged no later than 11 January 2016. That is the date appearing on the date stamp on the document at page 1 of the Appeal Book.

Delegate’s decision

6    A delegate of the Minister (Delegate) refused the Appellant’s TPV application on 2 November 2016.

7    The Delegate noted that in May 2015 the Appellant had been found to be working in breach of his visa conditions and had been issued with a Notice of Intention to Consider Cancellation. However, a decision was made not to cancel his bridging visa.

8    The Delegate summarised the Appellant’s protection claims as follows (at [7]-[9]):

7    The applicant’s written claims are summarised below:

•    He is a Sri Lankan National of Tamil ethnicity and of the Roman Catholic faith

•    He was born on 28 February 1971 in Mandaithivu, Jaffna, Northern Province, Sri Lanka.

•    He lived with his parents and five siblings until he was six years old.

•    The applicant attended school in Mandaithivu between 1978 and 1986 and completed year 10. During this time he stayed with his grandmother.

•    The applicant began fishing with his father and brothers in December 1986.

•    Mandaithivu was captured by the Sri Lankan Army on 17 June 1990. The applicant moved to the coastal village of Mulankavil, Kumunamunai, Nochchimunai on 18 June 1990.

•    The applicant’s father passed away from a heart attack on 10 December 1990.

•    The applicant married [name redacted] on 15 December 1992. They had a family of five children.

•    The applicant and his family were displaced due to the civil war between 20 July 2008 and 20 April 2009. During this time, the applicant resided at the following locations: Jeyapuram, Vannery, 8th Post, Selvanagar in Kilinochchi, Vattakachchi, Mailavaganapuram, Suthanthirapuram, Thevipuram, Puthukudiyirruppu, Iranaipalai, and Mathalam. He spent two months in bunkers to shelter from shelling, shooting and the advancement of the Army.

•    On 20 April 2009, the applicant and his family were taken to Iranaipalai for two days by the Army. Following this, they were taken to Chettikulam Camp where they stayed for two months.

•    On June 2009, the applicant and his family were taken to Mannar Murunkan Sirukandal camp where they stayed for four months. At this camp the applicant was interrogated.

•    On 16 October 2009, the applicant returned to Mandaithivu where he resumed fishing again.

•    On 2 January 2011 at 10pm, a thief entered the applicant’s house. The applicant caught him and alerted the neighbours to the thief. All the neighbours came running and beat the thief and handed him to the Navy officer who was in charge of the village. When the Navy officer questioned the thief in their presence, he confessed that he was from the Navy. Later the applicant’s name and address were taken. The Navy officer said that they will investigate this and the applicant was asked to go.

•    The applicant would normally have to obtain a pass when travelling to and from fishing. A few days after this incident, the Navy personnel asked the applicant for his name and told him ‘you are the person who beat up our colleague’. They threatened him. This became worse day by day. It did not appear that they would stop. Later, when the applicant travelled to Jaffna and returned, they detained him and asked the same thing. This happened 10 to 15 times.

•    When the applicant returned and told his wife, his wife became very scared and asked him not to go anywhere. The applicant stayed home from that time onwards. When he was at home, he read the newspaper and found out that people were travelling to Australia to seek refuge. His wife said to him ‘you don’t stay here. If you stay here, your life will be in danger. Go to Australia and save your life.’

•    After the incident with the thief who turned out to be a Navy officer, he lived a fearful life. He could not leave the house and could not go to Jaffna. A similar incident happened with another youngster and he later disappeared.

•    He is fearful that he will be killed as he was involved in catching a Navy person who came to his house as a thief.

8    The applicant attended a Protection visa interview on 11 May 2016.

9     The applicant made the following relevant additions to his written claims:

•    The applicant made an unsuccessful attempt to depart Sri Lanka illegally by boat in early September 2012. The boat was intercepted by the Sri Lankan Navy. The applicant was detained by the Sri Lankan authorities for four days and asked to provide a statement. The applicant was brought before the court in Negombo where he was represented by a lawyer, and subsequently released on bail. The applicant was required to return to court for further legal proceedings, however he departed Sri Lanka illegally by boat on 27th September 2012. The applicant now fears that if he is returned to Sri Lanka, he may be harmed as a result of this outstanding court case and for not complying with the legal proceedings.

•    The applicant also previously obtained a Sri Lankan passport with the intention of travelling to Saudi Arabia or Qatar to find work to support his large family; however after learning that the potential income was not much higher than what he was already earning in Sri Lanka, he decided not to go. The passport was issued in 2005 and valid until 2010. The applicant’s original passport is currently in Sri Lanka. Following the Protection visa interview, the applicant provided an electronic copy of the biographical page of his Sri Lankan passport.

9    The Delegate noted at [36] that:

… [t]he applicant claims to fear harm based on this incident with the Navy officer and although not expressly stated by the applicant, it is recognised that he fears harm based on his Tamil ethnicity. The applicant also fears harm in relation to an earlier attempt to depart illegally from Sri Lanka, in which we was detained by the authorities and has an ongoing court case in Sri Lanka which he has not complied with. The applicant also fears harm for having subsequently fled Sri Lanka illegally and having claimed asylum in Australia.

10    At [42] the Delegate accepted the Appellant’s recollection of the incident involving a thief who had been captured and later discovered to be an officer of the Sri Lankan Navy. The Delegate further accepted that following that event, the Appellant feared that the Navy officer would take revenge and the Appellant would be harmed in return. The Delegate further found as follows (at [50]):

During the Protection interview, I find that the applicant was able provide a high degree of context, detail and explanation about how the 2011 incident [being the incident involving an officer of the Sri Lankan Navy] impacted his daily activities. The applicant’s account is broadly supported by country information that fishermen in the Northern areas undergo security checks and clearance by the Sri Lankan Navy before they are able to go fishing at sea every day.31 Based on the applicant’s testimony at interview, I accept the applicant’s claim that the Sri Lankan Navy and Army officials made comments about his involvement in the January 2011 incident. I accept the applicant’s claim that over the period of approximately 20 months between the incident in January 2011 and his departure from Sri Lanka in September 2012, this happened seven to eight times at the Navy checkpoint while going fishing, and two to three times at the Army checkpoint when travelling to Jaffna. I note that the applicant has not claimed to have experienced any harm beyond observing these comments. I accept that the applicant feared that the Navy officer would take revenge and feared that he would be harmed in return for his involvement in the 2011 incident. Based in the applicant’s explanation at interview, I also accept that his reason for coming to Australia in September 2012 was due to his fear of harm or reprisal relating to the January 2011 incident and not for work purposes.

11    The Delegate also accepted at [53] that the Appellant’s family had been visited by Sri Lankan authorities and asked about the Appellant’s whereabouts since he had left Sri Lanka. However, the Delegate concluded that these visits were in relation to the Appellant having left Sri Lanka, rather than being related to the 2011 incident. The Delegate accepted the Appellant’s statement that the Sri Lankan authorities had stopped visiting the Appellant’s family in “the last year and half to almost two years” and further accepted that the Appellant believed that his original reason for leaving Sri Lanka was no longer a significant issue because the Sri Lankan authorities no longer visited his house and questioned his wife regarding his whereabouts. Nevertheless, the Delegate noted that the Appellant “may still maintain a level of uncertainty regarding how he would be treated by other Sri Lankan Navy and Army officers in the area if he were to be returned to Sri Lanka.”

12    The Delegate also accepted that the Appellant had previously attempted to depart Sri Lanka in early September 2012 but was intercepted by the Sri Lankan Navy. The Delegate accepted that the Appellant was detained for four days then brought before a court in Negombo and released on bail with a further court hearing remaining when he had left Sri Lanka on 27 September 2012. The Delegate accepted that the Appellant fears harm for having unsuccessfully attempted to depart Sri Lanka illegally in early September 2012, and for failing to “compl[y] with the consequent legal proceedings in Sri Lanka.” The Delegate also accepted that the Appellant had departed Sri Lanka illegally and would therefore be returning as a failed asylum seeker.

13    The Delegate summarised the factual findings at [62]:

After considering the applicant’s submission, I have arrived at the following findings of fact:

•    I accept the applicant is Francis Xavier AUGUSTINE, a Sri Lankan national, born in 1971.

•    I accept the applicant is from Mandaithivu village, Jaffna district, Northern Province, Sri Lanka.

•    I accept the applicant is of Tamil ethnicity and Roman Catholic by religion.

•    I accept that the applicant was involved in an incident in early 2011 where he captured a thief who was later discovered to be a Navy officer.

•    I accept that Sri Lankan Navy and Army officials made comments about his involvement in the January 2011 incident. I accept that this happened seven to eight times at the Navy checkpoint while going fishing, and two to three times at the Army checkpoint when travelling to Jaffna.

•    I accept that the applicant’s reason for coming to Australia in September 2012 was due to his fear of harm or reprisal relating to the January 2011 incident and not for work purposes.

•    I accept that the applicant’s family have been visited by the Sri Lankan authorities since his departure. I find that these visits were not in relation to his involvement in the January 2011 incident, but rather related to the checking of villagers who were reported to have departed the country from his village.

•    I accept the applicant made a previous unsuccessful attempt to depart Sri Lanka unlawfully. I accept that the applicant was detained by Sri Lankan authorities for four days, brought before the court in Negombo and had a court hearing pending at the time that he departed Sri Lanka.

•    I accept the applicant departed Sri Lanka unlawfully on 27 September 2012.

14    At [67], the Delegate accepted that the Appellant feared persecution on account of his Tamil race and imputed political opinion, and as a member of the following social groups: Tamil males from Jaffna; Tamil fishermen in Sri Lanka; and failed Tamil asylum seekers who departed Sri Lanka illegally. The Delegate accepted at [71] that the Appellant feared persecution on the basis of race, imputed political opinion and membership of a particular social group, thus satisfying s 5J(1)(a) of the Migration Act 1958 (Cth) (the Migration Act). The Delegate further found that the reasons of race, imputed political opinion and membership of a particular social group were the “essential and significant reason(s) for the feared persecution” in accordance with s 5J(4)(a) of the Migration Act (at [73]).

15    The Delegate accepted that the Appellant feared that he would or might face arrest, detention and possible torture, or may be killed, for reasons of his race, imputed political opinion or membership of a particular social group. The Delegate was thus satisfied that the feared persecution fell within the definition of serious harm as required by s 5J(4)(b) of the Migration Act. The Delegate was also satisfied that the persecution feared involved systemic and discriminatory conduct, satisfying s 5J(4)(c) of the Migration Act.

16    However, the Delegate then proceeded to consider whether the fear of persecution was well-founded in that there was a real chance that the Appellant would be persecuted for one or more of the reasons provided for by s 5J(1)(a) of the Migration Act.

17    The Delegate concluded at [83] that the Appellant had not been seriously harmed in relation to his involvement in the 2011 incident with a Sri Lankan Navy officer, and that his family had continued to live in Mandaithivu without incident since that time. The Delegate considered there was no information to suggest that the Sri Lankan authorities would maintain an interest in the Appellant and seek to harm him because of his involvement in the 2011 incident, and concluded that there was no real chance that the Appellant would be harmed by the Sri Lankan authorities “or other accomplices” for his involvement in that incident.

18    The Delegate referred to various country information in the context of consideration of whether the Appellant would face a real chance of persecution on the basis of his membership of a particular social group (being a Tamil male fisherman from Jaffna) at [85]-[91]. The Delegate found that there was no real chance that the Appellant would face such persecution (at [92]).

19    The Delegate then proceeded to consider whether the Appellant would face a real chance of persecution as a failed asylum seeker who had departed Sri Lanka illegally with a pending arrest warrant. The Delegate concluded at [104] that there was no real chance of harm amounting to persecution if the Appellant was to return to Sri Lanka, and consequently found there was no real chance that the Appellant would be persecuted as a returned failed Tamil asylum seeker who departed Sri Lanka illegally with an extant court order for a previous breach of Sri Lankan law.

20    In considering whether the Appellant satisfied the refugee criteria contained in s 36(2)(a) of the Migration Act, the Delegate found that the Appellant did not satisfy the definition of refugee contained in s 5H(1) of the Migration Act. The Delegate therefore concluded that the Appellant was not a person in respect of whom Australia had protection obligations pursuant to s 36(2)(a).

21    The Delegate then proceeded to consider complementary protection pursuant to s 36(2)(aa) of the Migration Act. The Delegate’s reasoning in those regards is at [108]-[113]. The Delegate concluded at [114] that there were no substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Sri Lanka, there was a real risk that the Appellant would suffer significant harm as required by s 36(2)(aa). The Delegate therefore concluded that the Appellant is not a person in respect of whom Australia had protection obligations.

22    As a fast track review applicant, the Appellant was automatically referred to the IAA for review of the Delegate’s decision.

IAA decision

23    The IAA received submissions and further evidence on behalf of the Appellant on 28 November 2016. The IAA set out the material which had been referred to it, and the further material upon which the Appellant had sought to rely at [2]-[7]. The IAA found that the submissions did not constitute new information to the extent that they discussed evidence that had been before the delegate, and had responded to the delegate’s decision based on that material. The further information received by the IAA included a letter from a priest dated 14 November 2016. Also sought to be put before the IAA was a letter from a Regional Coordinator of the Human Rights Commission of Sri Lanka, and a Sri Lankan Police message form (together with an English translation). The IAA considered each of these documents to be new information because the information had not been before the delegate and, with the exception of the Priest’s letter, pre-dated the delegate’s decision.

24    The IAA was unsatisfied that there were exceptional circumstances to justify consideration of the new information save in respect of the Priest’s Letter. The IAA’s reasoning in that regard was as follows:

4    The further information consists of country information in the form of links to a number of articles dated 3 May 2016, 25-27 May 2014 and 30 April 2016. The applicant also provided a letter from a priest dated 14 November 2016, a letter from a Regional Coordinator of the Human Rights Commission of Sri Lanka dated 5 December 2012, and a Sri Lankan Police message form (together with English translation) dated 21 July 2016. The articles, letters and message form were not before the delegate and are new information. Other than the letter from the priest dated 14 November 2016, all the other new information pre-dates the date of the delegate’s decision. The applicant did not provide any explanation as to why the new information was not and could not have been provided to the delegate, or why it may be regarded as credible personal information that was not known, and had it been known it may have affected the consideration of the applicant’s claims, other than to say he enclosed new evidence that evinces that his claims and gear of harm from the Sri Lankan Navy (SLN) are credible. The articles do not relate to the applicant or his family. The letters and message form refer to the applicant and, on the face of it, are credible personal information, However, at the TPV interview the delegate explained to the applicant the importance of providing his full claims as early as possible, that if he doesn’t provide all his protection claims and other relevant information, and the applicant is refused, he may not have another opportunity to do so, and said if he provides further information to the Department it may e considered prior to the decision being made. The applicant subsequently provided other documents to the delegate after the TPV interview. I am not satisfied that there are exceptional circumstances to justify considering the articles, the letter dated 5 December 2012 or the message form dated 21 July 2016. As the priest’s letter is dated 14 November 2016, after the date of the delegate’s decision, I am satisfied that there are exceptional circumstances to justify considering the new information and that it could not have been provided to the delegate before the decision was made.

25    The IAA also obtained new information pursuant to s 473DC(1) of the Migration Act, being country information regarding conditions in Sri Lanka from the most recent Department of Foreign Affairs and Trade country report (dated 24 January 2017). The IAA invited the appellant to comment on that information and on 19 June 2017, responsive submissions and further information were provided on the appellant’s behalf. The IAA was satisfied that the new information should be taken into account and considered.

26    Other than in respect of those matters, I will refer to the IAA’s reasons in greater detail when relevant to the issues in the appeal before me.

27    The IAA affirmed the decision of the Delegate.

The FCCA Proceedings

28    The Appellant sought review of the decision of the IAA in the FCCA.

29    The grounds advanced by the Appellant in those proceedings were set out at [27] of the primary judge’s reasons as follows:

The applicant’s grounds of application are as follows (errors in original):

Ground 1 – The IAA appears to have applied an unduly narrow interpretation of the term “exceptional circumstances”, and failed to consider all matters capable of constituting the circumstances of the applicant’s case as exceptional; See: BVZ16 v Minister for Immigration and Border Protection.

Particulars

1. As in BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958 paragraphs 46 and 47, there has been a constructive failure to exercise jurisdiction by the IAA as the IAA “confined its consideration of whether there were exceptional circumstances to the evaluation…”

2. More details to be provided once the court book is provided.

Ground 2 - The IAA committed legal error by failing to have regard to s473DD (b) of the Migration Act when considering if exceptional circumstances does exist to justify considering the “articles, letters and a Sri Lankan police message form”

Particulars

1. s473DD(b)(i) requires a “factual enquiry as to whether or not the new information could have been presented to the Minister”

2. s473DD(b)(ii) on the other hand requires “an evaluation of the significacnt of the new information in the context of an pplicant’s claims more generally” See: BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958, paragraph 57.

3. The IAA accepted that “The letters and message form refer to the applicant” and therefore on the face of it was “credible personal information”.

4. The IAA does not appear to have considered this new information it considered to be credible personal information against the s473DD(b)(ii) criteria.

5. Failing to do so amounts to a legal error.

6. More details will be provided once the court book is provided to the applicant.

Ground 3 – The AAT failed to consider an integer of the applicant’s claims that were put forward before the delegate See – In NABE v Minister for Immigration and Multicultural and Indigenous affairs (No 2).

Particulars

a. The applicant provided supporting document about his court matter to the delegate [20].

b. The IAA makes its own findings regarding the contents of these documents.

c. It is unclear if the delegate raised any concerns regarding the court documents.

d. Should the IAA have deviated from a positive finding made by the delegate concerning the court documents tendered in post the delegate’s interview, the IAA would have committed legal error for railing to put the client on notice that it would be deviating from a positive finding made by the delegate.

e. More details to be provided once the court book is made available.

Ground 4 – The IAA committed jurisdictional error at [21], by rejecting documentary evidence “out of hand” See: Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50 (4 June 2010) paragraph 36.

Particulars

a. The IAA rejected the applicant’s claim that he was detained for four days and that he was brought to Negombo court for attempting to depart Sri Lanka illegally [21].

b. The applicant provided the delegate post the delegate’s interview a letter from a lawyer who confirmed that he represented the applicant’s arrest [21], the IAA rejected the claim and in doing so did failed to consider the evidence in support of the claim.

c. It was not open for the IAA reject the claim without dealing with the documentary evidence.

d. It was not open to the IAA to make a finding as it did at [22] and state that the lawyer’s letter was not a genuine document.

(Footnotes omitted, emphasis in original.)

30    The appellant was unrepresented before the primary judge and did not make oral submissions at the hearing.

31    The primary judge’s reasons with respect to Ground 1 are as follows:

29    Ground 1 is directed to the IAA’s finding that there were no exceptional circumstances to justify considering any of the new information, other than the Priest’s Letter, that information being country information in the form of links to a number of articles, a letter from a Regional Coordinator of the Human Rights Commission of Sri Lanka dated 5 December 2012, and a Sri Lankan Police message form (together with an English translation) dated 21 July 2016. I take ground 1 to contend, at least in part, that the IAA made an error similar to the error White J found the IAA made in BVZ16 v Minister for Immigration and Border Protection [[2017] FCA 958]. Before I identify the error White J found the IAA made in BVZ16, it will be useful to say something about s.473DD of the Act.

30. Section 473DD of the Act provides as follows:

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.

31    The expression “new information” is defined in s.473DC(1) of the Act to mean “any document or information that ... were not before the Minister when the Minister made the decision under section 65; and ... the Authority considers may be relevant”. And the notion of “exceptional circumstances” in the context of s.473DD was considered by Gageler, Keane, and Nettle JJ in Plaintiff M174/2016 v Minister for Immigration and Border Protection [[2018] HCA 16 at [30] and [31]]:

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”. 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).

32    The operation of s.473DD of the Act has been considered by the Full Federal Court on a number of occasions, a recent occasion being Minister for Immigration and Border Protection v CQW17 [[2018] FCAFC 110]. The effect of what the Full Federal Court said in CQW17 is that before the Authority may consider “new information” it must be satisfied of the matters stated in both s.473DD(a) and of either one of s.473DD(b)(i) or s.473DD(b)(ii) of the Act. In other words, the requirements of s.473DD(a) and either one of s.473DD(b)(i) or s.473DD(b)(ii) of the Act are cumulative. That the requirements of these two paragraphs are cumulative does not, however, imply that the Authority must consider them sequentially – first paragraph (a) then either one of paragraphs (b)(i) or (b)(ii). That is because matters that are relevant to assessing whether paragraph (a) is satisfied may also be relevant to assessing whether either of paragraphs (b)(i) or (b)(ii) is satisfied, and matters that may be relevant to assessing whether either of paragraph (b)(i) or (b)(ii) is satisfied may be relevant to assessing whether (a) is satisfied. This point was made by White J in BVZ16 v Minister for Immigration & Anor [[2017] FCA 958 at [9]] in a passage that has been approved by the Full Federal Court on four occasions [This passage was set out with approval by the Full Federal Court in CQW17 at [48] after which the Court noted: “His Honour’s view was affirmed in BBS16 at [102]-[103] (Kenny, Tracey and Griffiths JJ) and cited with apparent approval by the Full Court in CHF16 at [17]-[18] (Gilmour, Robertson and Kerr JJ) and DYS16 at [31]-[33] (Tracey, Murphy and Kerr JJ).”]:

The requirements of subparas (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 subpara (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.

33.    In BVZ16 White J held that the IAA had confined “its consideration of whether there were exceptional circumstances to the evaluation of the” review applicant’s “explanation for not having provided the information earlier”; and by doing so “the IAA had applied an unduly narrow interpretation of the term “exceptional circumstances””.

34.     Also relevant is the judgment of the Full Federal Court in AQU17 v Minister for Immigration and Border Protection. In that case it was submitted the IAA had taken too narrow a view of what constitutes exceptional circumstances. The Full Federal Court noted, however, that the review applicant “was unable to point to any fact or matter materially bearing upon the Authority’s consideration as to whether it was satisfied of the requirement under s 473DD(a) that was not taken into account and, had it been taken into account, would have materially borne upon its consideration”.42 That implies that before it can be found the IAA has taken too narrow a view of what constitutes exceptional circumstances, it is necessary to identify some fact or matter materially bearing upon the IAA’s consideration as to whether it was satisfied of the requirement under s.473DD(a) that was not taken into account and, had it been taken into account, would have materially borne upon its consideration.

35.    As I have already noted the IAA relied on two matters for concluding it was not satisfied there were no exceptional circumstances for considering the new information. The first was the applicant did not provide any explanation why the new information was not and could not have been provided to the delegate, or why it may be regarded as credible personal information that was not known and had it been known it may have affected the consideration of the applicant’s claims, other than to say he enclosed new evidence that “evinces” that his claims and fear of harm from the SLN are credible. The second matter is that at the TPV interview the delegate explained to the applicant the importance of providing his full claims as early as possible and that he may not have another opportunity to do so.

36.    It was reasonably open to the IAA to rely on these matters to conclude there were no exceptional circumstances that would justify the IAA considering the new information. Further, ground 1 does not identify any fact or matter that could be said to have been relevant to the Authority’s consideration of whether it was satisfied of the requirement under s 473DD(a) of the Act that was not taken into account but which, had it been taken into account, would have been relevant to its consideration. In these circumstances, I do not accept the IAA took a narrow, or too narrow a view of what constitutes exceptional circumstances for the purposes of s.473DD(a) of the Act when considering whether there were exceptional circumstances justifying its considering the new information.

37.     Ground 1, therefore, fails.

32    With respect to Ground 2, which asserted that the IAA had erred in considering whether or not there had been exceptional circumstances within the meaning of s 473DD, the primary judge reasoned as follows:

39.    As I have already noted, when considering whether there were exceptional circumstances the IAA asked the applicant to explain, among other things, why the new information may be regarded as credible personal information that was not known and had it been known it may have affected the consideration of the applicant’s claims. That indicates the IAA considered whether the new information may be regarded as credible information that was not known and had it been known it may have affected the consideration of the applicant’s claims was relevant to its considering whether there were exceptional circumstances justifying the IAA’s considering the new information.

33    The primary judge’s consideration of Ground 3 was as follows:

41.    Ground 3 is directed to the IAA’s not accepting as genuine the documents the applicant provided in relation to what he claimed was a pending court case arising from his having been detained for four days following the SLN’s interception of the applicant’s attempt to leave Sri Lanka by boat. The documents are the letter purportedly from a lawyer, and two letters each dated 15 December 2002, one from the applicant’s wife, and the other from the applicant’s brother. The claim appears to be that the IAA did not accept the genuineness of the documents in circumstances where it was not clear the delegate had rejected the genuineness of the documents. The underlying premise of the ground is that it was not open to the IAA to make a finding different from that of the delegate without first giving the applicant notice of its intention that it may do so.

42.    The delegate accepted the applicant’s claim that he made a previous attempt in early September 2012 to depart Sri Lanka and was intercepted by the SLN, that the applicant was detailed for four days in Negombo and released on bail, and that there was a court hearing outstanding at the time he left Sri Lanka on 27 September 2012. The IAA, however, was not bound to accept the delegate’s findings; and when considering whether it should make a finding different from that of the delegate, the IAA was not bound to give the applicant notice of the possibility of its making a finding that was different from the delegate’s finding. That follows from the following passages from the judgment of [the] Full Federal Court’s [sic] in DGZ16 v Minister for Immigration and Border Protection [[2018] FCAFC 12 at [72] and [76]]:

[72] In our opinion, Pt 7AA contemplates that the Authority will evaluate for itself the material considered by the delegate. We do not consider that the fast track statutory regime of Pt 7AA requires the Authority to notify the referred applicant that it is considering taking a different view, adverse to the referred applicant, of the material considered by the delegate. To that extent we agree with the primary judge, at [106] that the Authority is not required to inform the appellant of specific reservations about the appellant’s case and to provide the appellant with an opportunity to respond. …

[76] It was open to the Authority to disagree with the delegate’s evaluation of the material without providing to the appellant an opportunity to respond.

43.    In his written submissions the Minister noted that where in a particular case the IAA decides a review on a different issue to the delegate, it may fall into error if it unreasonably fails to consider whether to exercise its discretionary power under s.473DC to get documents or information from an applicant. I accept the Minister’s submission that the IAA did not in the case before me decide the applicant’s case on any issues different from the issues the delegate considered, but simply reassessed the material the delegate considered.

34    Ground 4 took issue with the IAA not having accepted as genuine certain documents provided by the Appellant in relation to what he claimed was a pending court case arising from his having been detained for four days following the SLN’s interception of the Appellant attempting to leave Sri Lanka by boat. The primary judge noted the Appellant’s reliance on the decision of the Full Federal Court in Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50 (SZNSP). The primary judge said:

44.    … In [SZNSP] the Refugee Review Tribunal found the visa applicant had fabricated her claim of fear of persecution and, because of the adverse credibility findings it made against the visa applicant, the RRT decided not to give any weight to a witness statement that apparently corroborated the visa applicant’s claim. The works the Tribunal used were: “Given the adverse credibility finding, the Tribunal does not give weight to the document”. The Full Federal Court said [at [33]]:

[I]t was open to the RRT to assess the credit of the first respondent and then, in the light of that assessment, consider what weight should be given to the witness statement. This was the process followed by the RRT which it described in the sentence “Given the adverse credibility finding, the Tribunal does not give weight to the document. Although expressed in the most cryptic terms, this statement shows that the RRT made an assessment of the value of the witness statement and then considered its effect in the light of the view it had formed to that point about the credibility of the first respondent.

45.    In the case before me the IAA concluded the documents on which the applicant relied were not genuine; but it did not so conclude on the basis of a general credibility finding adverse to the applicant. As I have set out in paragraph 17 of these reasons, the IAA relied on a number of matters for concluding the documents were not genuine, and its so finding was reasonable open for the reasons it gave.

35    The primary judge therefore dismissed the application for review.

The appeal

36    The Appellant filed his notice of appeal in this Court on 9 September 2018.

Notice of objection to competency

37    As earlier noted, the Minister relies on a notice of objection to competency filed on 12 October 2018, setting out the following grounds of objection:

1.    The Notice of Appeal filed by the Appellant on 11 September 2018 does not specify the grounds the Appellant relies on in support of the appeal contrary to rule 36.01(2)(c) of the Federal Court Rules 2011 (Cth) (Rules).

2.    Under r 36.10 of the Rules, the Appellant had 28 days, from 11 September 2018, to amend their Notice of Appeal without the Court’s leave. That 28 day period expired on 9 October 2018. The Appellant has not amended their Notice of Appeal to rectify the deficiency identified in paragraph 1. Accordingly, the Notice of Appeal remains deficient.

38    No amended grounds of appeal or submissions have been filed by the Appellant. No adjournment has been sought to allow the Appellant to obtain legal advice in the time since the notice of appeal was filed on 11 September 2018.

The Minister’s submissions

39    The Minister sets out the appellant’s claims for protection and a summary of the decision of the IAA and of the primary judge.

40    With respect to his objection to competency, the Minister submits as follows:

16    The notice of appeal is reproduced at AB 679. It does not comply with r 36.01(2)(c) of the Federal Court Rules 2011 because it does not, as required, specify the grounds on which the appellant relies in support of the appeal. It contains a bear [sic] assertion that the ‘FCC Judge committed an appealable error’. On that basis, the Minister objects to the competency of the appeal by a notice of objection competency (AB 686) filed and served on 12 October 2018.

17    The notice of appeal in this case is an instance of a notice that is ‘incomprehensible or entirely unrelated to the issues dealt with in the judgment’ which the Full Court in Zegarac v Dellios [2007] FCAFC 58 recognised (at [7], [10] and [12]) could justify a conclusion that the appeal is incompetent. The notice is relevantly incomprehensible because, although it asserts error, it is impossible in the absence of at least some particularity to discern where the error lies (cf Zegarac v Dellios [2007] FCAFC 58). For the same reason, without even an attempt at some particularity, it is not clear what the relationship is between the notice and issues dealt with in the court below.

18    Nevertheless, in other matters involving, as in this case, unrepresented appellants this Court has adopted the approach of itself reviewing the decision of the court below for any self-evident error. In BGZ15 v Minister for Immigration and Border Protection [2017] FCA 1095, Flick J said:

[10]    It should not be left to this Court on appeal to itself review the reasons for decision of the primary Judge and attempt to identify appellable error. Nor should it be left to this Court to itself try to identify a ground of review that may have been available to the Applicant, irrespective of whether it was previously advanced for consideration.

19    His Honour considered that in circumstances where no appellable error is identified the ‘preferable approach’ is for ([11]):

... this Court to review the reasons for decision of the Federal Circuit Court Judge and to determine whether there is any self-evident error as to the manner in which that Court resolved the grounds of review previously advanced for consideration and which it would appear are sought to be re-agitated on appeal.

20    There is, with respect, no self-evident error in the judgment of the court below. The court below disposed of each ground agitated below by the appellant in a considered way, consistent with authority. In particular, the court’s disposition of grounds 1 and 2 relating to ‘exceptional circumstances’ correctly identifies the applicable law, and discloses no error in its application to the particular circumstances of this case. Likewise, the reasoning of the court below discloses no error either of legal principle or application in relation to ground 3 and 4 of the appellant’s application for judicial review.

Consideration

41    The Appellant has not advanced any ground of appeal to identify any error alleged to have been made in the primary judge’s reasoning. It is not the role of this Court to examine the reasons of a primary judge in detail in order to identify potential grounds of appeal on behalf of an appellant. However, because the Appellant is unrepresented, I adopt the approach taken by his Honour Flick J in BGZ15 v Minister for Immigration and Border Protection [2017] FCA 1095 (BGZ15) at [11]-[12]:

11    In such circumstances, it is considered that the preferable approach that should be pursued is for this Court to review the reasons for decision of the Federal Circuit Court Judge and to determine whether there is any self-evident error as to the manner in which that Court resolved the grounds of review previously advanced for consideration and which it would appear are sought to be re-agitated on appeal. A course which construes Grounds of Appeal which impermissibly seek to repeat arguments directed to the question of whether the Tribunal erred as though they were expressed as an argument that the Federal Circuit Court erred in not accepting like arguments previously advanced is a course which:

•    is commonly pursued in this Court;

•    recognises difficulties confronting unrepresented appellants; and

•    recognises that the Court’s duty is not solely to the unrepresented litigant but “entails ensuring that the trial is conducted fairly and in accordance with law” and a duty to strike a “balance between providing assistance to an unrepresented litigant and ensuring a fair trial for all parties” (cf. Hamod v New South Wales [2011] NSWCA 375 at [309] to [315] per Beazley JA, Giles and Whealy JJA agreeing; AMF15 v Minister for Immigration and Border Protection [2016] FCAFC 68 at [39], (2016) 241 FCR 30 at 44 to 46 per Flick, Griffiths and Perry JJ).

In striking that balance, it is necessary to balance compliance with the requirement imposed by r 36.01(2)(c) of the Federal Court Rules 2011 (Cth) to state “briefly but specifically, the grounds relied on in support of the appeal” and the need to ensure that an unrepresented appellant “suffers no meaningful disadvantage in the conduct of her or his case because she or he does not have the skills or knowledge of a lawyer” (MZAGE v Minister for Immigration and Border Protection [2016] FCA 630 at [32] per Mortimer J).

12    In the absence of any appellable error having been specifically identified in the purported Grounds of Appeal, or in the absence of an ability to construe a Ground as meaning that the primary Judge erred in not accepting much the same argument as previously advanced, this Court has no general function to resolve an unspecified and unidentified error. A consideration as to whether there is any self-evident error, it is recognised, may well fall far short of a Judge of this Court independently parsing and analysing a Tribunal decision with a view to identifying a potential argument as to jurisdictional error and thereafter proceeding to resolve that newly formulated argument. In the absence of a self-evident error, this Court has no general duty or function to itself articulate a question of law.

42    In my view the Minister’s objection to competency should be upheld.

43    The only aspect of the primary judge’s reasons that could provide a basis for this Court to conclude that there was a self-evident ground of appeal overlooked in the court below arises in respect of his Honour’s consideration of Grounds 3 and 4 as advanced before the FCCA. Those grounds took issue with the IAA having determined that documents provided by the Appellant in relation to an alleged pending court case arising from the Appellant having been detained for four days were not genuine.

44    However to express the point in that way provides an inadequate context and a too abbreviated account of the differences as to how the material before the Delegate and the IAA were dealt with.

45    The relevant paragraphs of the Delegate’s decision were as follows:

56    The applicant was asked about what will happen to him in relation to the outstanding court case if he were to return to Sri Lanka. The applicant was unsure what the consequences for his actions will be if he returns to Sri Lanka. That applicant explained that he fears that there may also be consequences for postponing the court case for such a long time (given the incident occurred in 2012 and it is now 2016), for his original offence of attempting to depart Sri Lanka illegal by boat, and his subsequent illegal departure from the country. The applicant is also concerned about whether his family will be harmed as a result of his actions.

57    At the Protection visa interview, the applicant was asked to provide documentation relating to his ongoing legal proceedings in Sri Lanka. Following the Protection visa interview, the applicant provided a letter from Attorney-At-Law, M.B.M. Mahir dated 19th May 2016 which states that ‘[the Appellant] is a suspect in the case no [redacted] at the magistrate court Negombo. I appeared for him to enlarge him on bail with two sureties and a cash deposit. Further he has to report to the courts on calling. Since he has not turned up to the courts he has been issued warrant. He can be arrested any time when he returns to Sri Lanka.’ … I find that this document corroborates with the applicant’s testimony and I accept this document as evidence of his ongoing legal proceedings in Sri Lanka.

58    In 2012, the UNHCR stated that the number of Sri Lankans attempting to leave the country in an irregular manner on boats had increased and were a common occurrence. Previously, such departures primarily took place from Negombo, however from early 2012, attempted departures from other coastal locations had been reported. The Sri Lankan authorities, including the navy, increased their vigilance and strengthened surveillance in Sri Lanka’s territorial waters, resulting in an increase in the number of boat interceptions. After interception, the persons on board were reportedly regularly detained. The UNHCR references a media report which indicates that in July 2012, the Sri Lankan authorities claim to have prevented some 700 irregular departures since the beginning of the year, and by November 2012, the Sri Lankan authorities had arrested more than 1,200 people trying to leave the country in an irregular manner. Most persons on board had a view to seek asylum in Australia.

59    Based on the information above, I accept that the applicant made a previous attempt to depart Sri Lanka in early September 2012 and was intercepted by the Sri Lankan Navy. I accept that the applicant was detained by the Sri Lankan authorities for four days, brought before a court in Negombo and released on bail, with further court hearing outstanding at the time that he left Sri Lanka on 27 September 2012. I accept that the applicant fears possible harm for his unsuccessful attempt to depart Sri Lanka illegally by boat in early September 2012 and for having not complied with the consequent legal proceedings in Sri Lankan.

(Footnotes omitted.)

46    It is uncontentious that in respect of those matters the IAA reached a different conclusion. It reasoned as follows:

19    He was much less consistent about his first unsuccessful attempt to leave Sri Lanka and subsequent events. Having considered his evidence from his TPV application, TPV interview, and his supporting documents, I have serious concerns about the truthfulness of some aspects of the applicant’s other evidence.

20    The applicant indicated at questions 3 and 86 in his TPV application that he was detained for four days, brought to court in Negombo for trying to depart illegally from Sri Lanka in 2012 and the court proceedings were still pending. He did not mention that incident in his written statement accompanying his TPV application. None of the supporting documents he provided with the TPV application mention his unsuccessful attempt to leave Sri Lanka and several of the letters (his wife’s letter of 9 November 2012; his wife’s letter of 7 November 2012 that is endorsed as correct by the Grama Niladhari; and the letter dated 12 November 2012 from M Julius a JP) confirm that he was never charged in a court or wanted by the Sri Lankan authorities. Initially at the TPV interview he said he had not tried to leave Sri Lanka previously, that he was not intercepted in a boat prior to his departure and that he had never been brought before a court in Sri Lanka and confirmed that when he departed Sri Lanka for Australia it was the first and only time he attempted to depart for Australia. When reminded of the claim in his TPV application that he was brought to Negombo Court for trying to leave Sri Lanka illegally he appeared to react with surprise before saying that he had so many other worries he forgot. Given that he claimed at the end of the interview that his only concern was the court case if returned to Sri Lanka, I do not find his explanation that he forgot to be credible. He then provided some further details including that his wife, possibly as guarantor, attends court when the matter comes up; that the lawyer appears each time and somehow gets the matter adjourned; that his wife last attended court in December 2015; and she was next due in court in August 2016 after it was adjourned on the last occasion. The delegate asked him to provide supporting documentation about this court matter. After the TPV interview he provided a letter dated 19 May 2016 from a lawyer who says he represents the applicant in the court proceedings, that he was bailed on two sureties and a cash deposit, that he is required to attend court when called, since he has not turned up at court a warrant has been issued for his arrest and he can be arrested at any time if he returns to Sri Lanka. The lawyer’s letter makes no mention of the applicant’s wife attending court in December 2015 and that the matter was adjourned to August 2016 as claimed by the applicant, a significant omission. Nor do I consider it plausible that, if an arrest warrant was issued for the applicant he would be unaware of it or fail to mention it to the delegate when discussing the court proceedings. He also provided letters from his wife and brother both dated 15 September 2012 addressed to the Divisional Secretary stating that the applicant has never been engaged in subversive activities, charged in any court or wanted by the police and asking for that to be certified so they can apply for bail and the letters are endorsed by the Divisional Secretary and the Grama Niladhari. These two letters are clearly inconsistent with the November 2012 letters discussed above.

21    Given the discrepancies in the applicant’s evidence about the incident, I reject the applicant’s claim that he was detained for four days and brought to Negombo court for trying to depart Sri Lanka illegally prior to his successful departure from Sri Lanka as a fabrication. Additionally, given the inconsistencies between the lawyer’s letter and the details the applicant provided at the TPV interview and the inconsistencies between the letters dated September 2012 he provided after the TPV interview, the letters dated from November 2012 he provided in the TPV application, together with the general incidence of document fraud in Sri Lanka, I am satisfied that the lawyer’s letter of 19 May 2016 and the letters dated 15 September 2012 from his wife and brother are not genuine but have been supplied by the applicant to boost his protection claims.

(Footnote omitted.)

47    In DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12; 258 FCR 551 (DGZ16) a full court of this Court (Reeves, Robertson and Rangiah JJ) set out the relevant principles binding on a single judge of this Court:

69    In our opinion, the starting point for analysis is not the different regime under Pt 7 and the cases decided in relation to those statutory provisions. Instead, the starting point must be the terms of Pt 7AA and, subject to Pt 7AA, the obligation on the Authority to review a fast track reviewable decision by considering the review material without accepting or requesting new information and without interviewing the referred applicant: s 473DB(1). Also, by s 473DA, Div 3 is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Authority. In our view, SZBEL is not the appropriate starting point.

70    It is to be noted that the present case is not one where the Authority has decided a point which was not the point decided by the delegate, but rather one where additional information is necessary in order to complete the review. We refer to Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210, where the Authority affirmed the decision of the delegate to refuse to grant the SHEV but on the different basis of relocation which the delegate had not addressed. Thus there may be circumstances in which it is legally unreasonable not to consider the exercise of the discretionary power in s 473DC(3).

71    In the present appeal, in our opinion, the Authority reassessed the material which the delegate had considered. The delegate did not accept the appellant’s claims largely because of the delegate’s finding that there was no CTS office in Nasiriyah during the period claimed by the appellant, which significantly undermined the credibility of the appellant’s claims to have been a CTS informant. The delegate referred to “the significant credibility issues surrounding the applicant’s claim to have been a ‘secret agent’ for the CTS”. But the delegate also tested the plausibility of the appellant’s claims to have become or remained an informant. The delegate was not satisfied that the risk in which the appellant claimed to have put himself and his family was plausible, in that the delegate did not accept that a reasonable person would continue to be an informant for altruistic reasons after being personally attacked and having his home burnt out.

72    In our opinion, Pt 7AA contemplates that the Authority will evaluate for itself the material considered by the delegate. We do not consider that the fast track statutory regime of Pt 7AA requires the Authority to notify the referred applicant that it is considering taking a different view, adverse to the referred applicant, of the material considered by the delegate. To that extent we agree with the primary judge, at [106], that the Authority is not required to inform the appellant of specific reservations about the appellant’s case and to provide the appellant with an opportunity to respond.

73    We would not however approach the resolution of the appeal by considering whether or not the delegate’s decision indicated that all aspects of the appellant’s credit were at issue in the Authority’s review. That is to view the procedure through a natural justice lens.

74    We do not accept the submission put on behalf of the appellant that the fact that the Authority in the present case accepted as being before it the submissions made by the appellant, and accepted the new information involved in those submissions, implies that the Authority was required, as a matter of legal reasonableness or otherwise, to seek further submissions from the appellant once it formed specific reservations about the appellant’s case, and to provide the appellant with an opportunity to respond.

75    There is no requirement in Pt 7AA, equivalent to s 425, which provides that the Tribunal must invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. Indeed, as we have noted, by s 473DB, subject to Pt 7AA, the Authority must review the fast track reviewable decision by considering the review material provided to it without accepting or requesting new information and without interviewing the referred applicant.

48    Thus, subject to legal unreasonableness (see Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; 254 FCR 475 (CRY16)) it is within the IAA’s statutory remit to reassess the materials that had been before the Delegate and to come to a different conclusion without giving the review applicant notice of its reservations regarding the conclusion earlier reached by the Delegate, and an opportunity to respond.

49    Before the primary judge, consistently with the duty of a model litigant, counsel for the Minister advised the Court that the principles of CRY16 would mean that the IAA would have fallen into error if it had unreasonably failed to consider whether to get documents or information from the Appellant in respect of the matters that were the subject of its findings in the above paragraphs. Counsel for the Minister however submitted that on the facts of the Appellant’s review there had been no such requirement. The primary judge accepted that submission.

50    His Honour reasoned as follows (at [43]):

I accept the Minister’s submission that the IAA did not in the case before me decide the applicant’s case on any issue different from the issues the delegate considered, but simply reassessed the material the delegate considered.

51    That reasoning is conclusionary rather than analytical but in my submission the primary judge did not thereby fall into error in holding that the IAA had done no more than to fulfil its duty to “reassess the material which the delegate had considered”: see DGZ16 at [71].

52    When examined, it is clear that the IAA’s reasons for rejecting the Appellant’s accounts were based on the Appellant’s earlier failure to raise the point and the internal inconsistencies in the various accounts provided. Such reasoning in an administrative decision-maker is unexceptional.

53    Legal unreasonableness is inherently fact and context specific. It is an aspect of the principle of statutory interpretation that Parliament expects any statutory power to be performed in a reasonable manner. In the present case, similarly to that of DGZ16, an asserted failure to consider the exercise of a discretion must be assessed in the context that pursuant to s 473DB of the Migration Act, subject to Pt 7AA, the IAA ordinarily must review a fast track reviewable decision by considering the review material provided to it without accepting or requesting new information and without interviewing a referred applicant.

54    In my opinion, in the particular circumstances before it, it was not legally unreasonable for the IAA not to have revealed its concern regarding the facts of this particular aspect of the Appellant’s review such as to require it to consider the exercise of the discretionary power in s 473DC.

55    That is not to conclude it will never be the case that where a Tribunal makes a finding contrary that of a delegate a different conclusion might be required. Legal unreasonableness is both outcome and process focussed. In the court below, counsel for the Minister made an appropriate concession that CRY16 was relevant that regard.

56    That general proposition accepted, it is sufficient for the disposition of these proceedings to indicate that the Court can discern no error in the primary judge’s conclusion. The obligation to provide the Appellant with an opportunity to respond did not engage the principle of legal unreasonableness in this specific instance.

57    In respect of a matter which was the subject of some significant attention in the hearing before me today, there was initially an issue of confusion regarding the Appellant’s contention that the process before the FCCA had overlooked reference to a letter he had received from the Sri Lankan CID which he had had translated into English and had provided to the IAA. That initial confusion was resolved by its identification as the document (at AB 473) entitled “message form”. In respect of that matter, the IAA had concluded that the document pre-dated the Appellant’s hearing before the Delegate and that there were no exceptional circumstances that would justify the IAA considering that particular new information. His Honour’s consideration of that aspect of the application before him was dealt with at [29]-[37] of his Honour’s reasons. Those reasons are comprehensive and no submission is made that they are inaccurately or otherwise unsound in the particular circumstances of this case. Such circumstances do not engage the principles that Flick J referred to in BGZ15 as would reveal self-evident error.

58    It must be acknowledged that the scheme for fast track reviews provided for by Pt 7AA of the Migration Act does not extend to providing the range of entitlements that an applicant would ordinarily be entitled to in other types of proceedings. However that circumstance arises because of a deliberate choice made by the Parliament and I can discern no error in the primary judge’s application of those constrained entitlements.

59    In these circumstances, given the form of the appeal does not comply with the requirements of the Rules to specify grounds of appeal, I would uphold the Minister’s objection to competency. The appeal is dismissed with costs to be agreed or assessed.

Associate:

Dated:    18 February 2019