FEDERAL COURT OF AUSTRALIA

DNN17 v Minister for Immigration and Border Protection (No 2) [2019] FCA 296

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

ALLSOP CJ:

1    This is an appeal from orders made by a judge of the Federal Circuit Court of Australia dismissing an application for review of a decision of the Immigration Assessment Authority made on 11 July 2017 under Pt 7AA of the Migration Act 1958 (Cth), which affirmed the decision of a delegate of the Minister not to grant the appellant a Safe Haven Enterprise visa.

Procedural history

2    The appellant, who applied for a Safe Haven Enterprise visa on 8 February 2016, is a citizen of Sri Lanka. A summary of the appellant’s claims that were made to the delegate was set out at [2]–[3] of the primary judge’s reasons, as follows:

2    … The applicant claimed to fear harm because as a child he carried messages for the Liberation Tigers and Tamil Eelam (“LTTE”) and his father was forced by the LTTE to carry those messages and pass messages to the applicant. The applicant alleged that during the Sri Lankan civil war the applicant and his family were displaced. The applicant alleged that they were relocated into internal displaced people (“IDP”) camps and that he and his father were named as having carried messages for the LTTE and questioned by the Sri Lankan Criminal Investigation Division (“CID”) and that officers of the CID threatened and assaulted the applicant and his father.

3    The applicant alleged his father moved away due to fear and to look for work. The applicant alleged he was questioned about his father’s whereabouts and mistreated, and that the applicant feared that the treatment would escalate in his being abducted and disappeared. The applicant alleged that his mother and father arranged for him to depart illegally by boat in August 2012. In mid-2015 the applicant’s mother told him his father had been caught by the authorities and was assaulted and required medical treatment and that the applicant’s father had now gone into hiding, and that the authorities asked about the applicant, and that the Sri Lankan army has also inquired about him at his school and among his friends.

3    The delegate refused to grant the visa on 20 October 2016. The Authority informed the appellant on 28 October 2016 that the application for the protection visa had been referred to the Authority for review.

4    In response to an invitation by the Authority, the appellant provided additional submissions on 30 November 2016, which the Authority took into account when making its decision. On 11 July 2017, the Authority affirmed the delegate’s decision.

5    The proceedings before the Federal Circuit Court were then commenced on 4 August 2017. The appellant was given the opportunity to file an amended application, affidavit evidence and submissions, but did not do so. At the hearing, the appellant was self-represented but confirmed that he understood the nature of the proceedings as explained to him by the Court.

6    The Federal Circuit Court dismissed the application on 15 March 2018.

The Authority’s reasoning

7    As discussed at [5]–[16] of the reasons for judgment of the primary judge, the Authority considered the various materials and claims presented by the appellant. Its considerations and reasoning can be summarised as follows:

(a)    The appellant relied on new information in the form of a World Policy Blog Report but could not explain why he had been unable to provide it to the delegate or why the report contained personal credible information that was unknown at the time of the delegate’s decision, such that the Authority therefore did not have regard to the blog;

(b)    The Authority took into account more recent country information than was before the delegate pursuant to s 473DE(3)(a) of the Act;

(c)    The Authority referred to inconsistencies in the appellant’s evidence that indicated, in the view of the Authority, that he was exaggerating the risk of harm to himself, such as his claim that Singhalese people paid his father to transport weapons for the LTTE (a Tamil organisation) or his claim that his father went into hiding despite also asserting that his father relocated to find work;

(d)    As to the monitoring of Tamils by Sri Lankan authorities, the Authority did not consider that this would amount to serious harm by reference to the United Nations High Commissioner for Refugees guidelines and the available DFAT country information;

(e)    The Authority did not consider that the appellant faced a real chance of serious harm on account of his political opinion, his age, his being Tamil, his place of residence, his or his family’s involvement with the LTTE, his or his family’s history with the Sri Lankan authorities, his status as a failed asylum seeker, or his failed departure from Sri Lanka; and

(f)    The Authority was not satisfied that any process or penalty the appellant may face on return to Sri Lanka would amount to persecution for the purpose of the Act.

8    Accordingly, the Authority was not satisfied that the appellant met the refugee or complementary protection criteria in s 36(2)(a) and s 36(2)(aa) of the Act respectively.

The Federal Circuit Court proceedings

9    In the application for judicial review filed on 4 August 2017, the appellant relied on five grounds of review, which were set out at [22] of the primary judge’s reasons, as follows:

1. The Second Respondent in its decision and reasons in paragraph 4 refused to accept the World Policy Blog Report that was published 4 weeks before the delegate’s decision on the ground that why “the applicant has not provided an explanation why he was unable to provide the delegate or why the report contains personal credible information that was unknown at that time of the delegates decision.” This finding was made using excessive authority to refuse to accept new information and further made an unreasonable finding on unreasonable grounds just because the applicant was unable to provide the above report that was published 4 weeks before the interview. The Second respondent made a jurisdictional error thereby.

2. The Second Respondent made an error in its finding by failing to accept that the applicant was a minor at the time he passed messages to the LTTE under his father’s direction and has no knowledge of the contents of the messages and also couldn’t understand them. The Second respondent made an erroneous finding that “I consider the application provided credible, detailed claims at the SHEV interview explaining how he would pass through check points and deliver the messages.” The Second Respondent failed to understand the fact that the messages are confidential and not to be tampered with and further the applicant had no knowledge of it but knew the way and manner how he passed through the check point being a young boy. Here the Second Respondent made an error on relevant fact finding and made a jurisdictional error.

3. The first and Second Respondent used excessive authority to reject the claims at the interview that the applicant’s father’s involvement in transporting arms for the LTTE, his father’s disappearance and the authorities’ interrogations with that regard were as applicant’s exaggerations. These relevant facts are ignored by the Respondents and made an erroneous finding that this made a jurisdictional error.

4. The Second Respondent used excessive authority in rejecting the main claims but was accepting the general claims in order to reject the applicant’s protection visa on the grounds that the applicant would not face serious harm on his return. The Respondents categorically rejects the main claims such as the father’s involvement in transporting weapons, and his involvement in passing messages for the LTTE and thereby failed to accept the relevant facts and made jurisdictional errors.

5. The Second respondent failed to give the applicant to respond to any doubts the Respondents had during the interview and after the submissions to the Second Respondent and thus made an error on the grounds of procedural fairness.

10    The primary judge considered each of the appellant’s grounds of review in turn at [23]–[29], ultimately concluding that the application failed to reveal any jurisdictional error.

11    With respect to the first ground of review, the primary judge noted that the appellant made no submission to explain why the World Policy Blog Report was not provided to the delegate. His Honour held that there was no reason to believe that the Authority had not properly had regard to the requirements of s 473DD of the Act and concluded that the Authority’s reasons for rejecting the report given this lack of explanation could not be said to be unreasonable, irrational or illogical.

12    The primary judge considered the appellant’s second ground of review to consist of various assertions: that the Authority erred in relation to the appellant’s absence of knowledge as to the contents of the messages that he passed to the LTTE; that the Authority erred in relation to its credibility findings concerning the appellant; that the Authority failed to understand that the documents were confidential; and that the Authority failed to understand his claims. At [24]–[25], the primary judge concluded that the Authority did make dispositive findings that were open on the material before it and which could also not be said to be unreasonable, irrational or illogical.

13    The third ground of review was found by the primary judge not to amount to jurisdictional error because it simply amounted to the appellant’s disagreement with the Authority’s adverse finding in relation to his father’s involvement in transporting arms, rather than revealing any jurisdictional error in the Authority’s fact-finding.

14    The primary judge similarly concluded that the fourth ground of review did not give rise to any jurisdictional error because it constituted a further disagreement with the Authority’s adverse finding concerning his fear of serious harm and amounted to an invitation that the Court engage in impermissible merits review.

15    Finally, the primary judge interpreted Pt 7AA of the Act as not requiring the Authority to invite the appellant to comment on, or give the appellant an opportunity to respond to, the Authority’s adverse findings, with the consequence that, contrary to the fifth ground of review, there was no denial of procedural fairness because the Authority had complied with the statutory regime.

The present appeal

16    On 4 April 2018, the appellant filed a notice of appeal against the orders of the Federal Circuit Court. That notice raised the following four grounds of appeal:

(1)    The Federal Circuit Court adopted an unduly narrow view of the errors in fact finding and thereby made a jurisdictional error.

(2)    The IAA made jurisdictional errors by rejecting my relevant claims completely by giving irrational, irrelevant and unacceptable reasons based on irrational fact finding and thus made jurisdictional errors.

(3)    The IAA misconstrued and misinterpreted my claims and rejected them without any legitimate reasons or explanations and thus made jurisdictional errors.

(4)    The IAA used excessive authority and failed to take into consideration the genuine claims and made a decision which is sufficiently defective and establishes confusion giving rise to jurisdictional errors.

17    The appellant did not file submissions prior to the hearing of the appeal on 22 August 2018. The appellant appeared for himself on that day and effectively asked for an adjournment. I provided the appellant with an opportunity of further time in the circumstances set out in my judgment on the day: DNN17 v Minister for Immigration and Border Protection [2018] FCA 1283.

18    In the orders made on 22 August 2018, I allowed the appellant until 12 September 2018 to file and serve any submissions upon which he seeks to rely in support of the appeal and in answer to the affidavit of Mr Fisher affirmed on 24 July 2018. The appellant filed submissions on 10 September 2018 by Mr Turner, solicitor, which indicated that the appellant would seek leave to raise four new grounds:

(1)    That the Authority failed to carry out its statutory duty;

(2)    The Authority misinterpreted what constituted “laws of general application”;

(3)    The Authority relied upon an invalid direction; and

(4)    The Appellant was denied procedural fairness.

19    Thus the four grounds of appeal previously enunciated (with the exception of that complaining of a lack of procedural fairness) were not maintained. Nevertheless, in fairness to the primary judge, it is appropriate to say why they should have failed.

First Original Ground of Appeal

20    The appellant’s particulars in support of the first ground of appeal contain three main assertions, namely that the Federal Circuit Court:

(a)    dismissed his application without “giving consideration to the errors in fact finding on the part of the IAA”;

(b)    should have given the appellant more time to instruct a barrister; and

(c)    failed to consider the appellant’s oral submissions in relation to the impossibility of providing proof of arrest and torture by Sri Lankan authorities to the Authority.

21    As noted by the primary judge at [26]–[27], the mere disagreement with an adverse finding that was open to the reviewing body does not give rise to jurisdictional error. Of course, it is to be remembered that factual findings, including credit findings, are not immune from review for jurisdictional error: see CWR16 v Minister for Immigration and Border Protection [2018] FCA 859 at [60]–[65], and the cases cited therein. In this case, however, it was open to the Federal Circuit Court to conclude that the Authority’s reasoning was not irrational, illogical or unreasonable and so there was no jurisdictional error.

22    As to the procedural fairness aspects of this ground of appeal, the appellant:

(a)    chose not to file an amended application or additional affidavit evidence and submissions despite being given the opportunity to do so;

(b)    had the nature of the Federal Circuit Court proceedings sufficiently explained to him by the primary judge; and

(c)    made oral submissions at the hearing in the Federal Circuit Court.

23    The lack of legal representation in such proceedings was recently considered by Rares J in SZRIF v Minister for Immigration and Border Protection [2015] FCA 680, at [26]–[27]:

26    The Tribunal must deal with a vast number of persons of all different nationalities, ages, personalities, languages, and circumstances making claims before it for protection visas under s 36(2). There is no requirement in the law that those persons be provided with legal representation in the Tribunal at the expense of the Commonwealth. Nor is that the position in relation to litigation in the Courts. The Courts recognise that, among other things, they are assisted by trained lawyers appearing before them to present evidence and put arguments. Nonetheless, ordinarily, it is a fundamental right of every individual to appear in person before a court to represent himself or herself, or, if the person wishes or can afford to do so, he or she may be represented by a lawyer. There is no common law right for persons to have a lawyer to represent them in court proceedings at public expense: Dietrich v The Queen (1992) 177 CLR 292. However, as the High Court held in Dietrich 177 CLR 292, the Courts have powers to stay criminal proceedings where an accused is unrepresented if that lack of representation will result in an unfair trial.

27    Similarly, there is no common law right for persons to have a lawyer represent them at public expense in administrative proceedings, such as those before the Tribunal, or in claims for judicial review arising from administrative decisions. Often a court will be assisted by the provision of an argument and evidence presented by a lawyer on behalf of a party. But, everyone has the personal right to come before a court to present his or her own case and argument.

24    In that context, the first respondent additionally submitted that the Minister’s solicitors provided a list of legal service providers to the appellant several months prior to the proceedings. This submission was supported by the affidavit of Mr Asaf Fisher, affirmed on 24 July 2018, which was read, and fully interpreted and explained to the appellant, during the hearing of this appeal on 22 August 2018. The appellant indicated that he understood the contents of the affidavit and that he did not wish to object to any part of it. Therefore, I would accept the first respondent’s submission as to procedural fairness and conclude that the appellant had ample time and assistance to arrange legal representation for the proceedings. The appellant was not denied procedural fairness on that basis.

25    Regarding the issue of proof, the primary judge noted at [19] that the appellant requested a second opportunity to put his case on the basis that his claim had not been assessed properly. However, his Honour explained in response that the Court could only consider whether or not the Authority’s decision complied with statute and the requirements of procedural fairness and could not revisit the merits of that decision. The appellant’s contention in this regard should be rejected.

Second Original Ground of Appeal

26    In relation to the second ground of appeal, the appellant took issue in his particulars with the Authority’s view that the appellant had exaggerated the risk of harm to himself and that the Authority had made a jurisdictional error by unreasonably ignoring and avoiding relevant factual claims without giving valid reasons to justify its conclusion. To the contrary, as noted by the primary judge at [20], [21] and [23], the Authority did provide reasons to justify its findings and it was open to the Federal Circuit Court to conclude on the material before it that those reasons were not unreasonable, irrational, irrelevant or otherwise unacceptable. Accordingly, no jurisdictional error was established on this basis.

Third Original Ground of Appeal

27    With respect to the third ground of appeal, the appellant asserted that the Authority failed to consider various matters, including:

(a)    the constant harassment, torture and detention of the appellant and his father on suspicion of LTTE involvement;

(b)    that the appellant’s father transported weapons for the LTTE and, along with the appellant, passed secret messages to the LTTE;

(c)    the continuous interrogation of the appellant by security officers in relation to his and his father’s LTTE involvement; and

(d)    the misunderstanding as to how child soldiers were recruited by the LTTE.

28    In answer to these points, the first respondent, referring to the particular factual findings outlined above at [7], submitted that:

(a)    The Authority did take into account, and accept, that the appellant and his father were questioned and assaulted, and that the appellant was further threatened and questioned when his father went away;

(b)    The Authority’s rejection of the weapon transportation claim was reasonably based on various factors, including that the appellant’s claim was made late without persuasive reasons justifying that lateness and the implausibility of the appellant’s assertion that the Singhalese paid his father to transport weapons since the LTTE was a Tamil organisation;

(c)    The Authority’s conclusion as to the frequency of the appellant’s interrogation was reasonably based on its finding that the Sri Lankan authorities would not question a schoolboy about the same issues as often as the appellant claimed; and

(d)    The Authority validly relied on country information that did not support the proposition that children of the appellant’s age were recruited as child soldiers.

29    I consider that these findings, as noted by the first respondent, correctly demonstrate that the Authority gave appropriate consideration to the matters raised by the appellant. In particular, the Authority indicated at [9], [10] and [15] that it was willing to accept the appellant’s claims to some extent. However, in this case, it was open to the Authority to conclude that these were outweighed by other claims that were found to have been exaggerated. Accordingly, no jurisdictional error has been made out on this ground.

Fourth Original Ground of Appeal

30    The appellant’s fourth ground of appeal restates various elements in his first three grounds of appeal: that the IAA used excessive authority and failed to consider his genuine claims. This ground is again directed to the conduct of the Authority and not the Federal Circuit Court. Nevertheless, as noted by the primary judge at [25], the Authority provided sufficient reasons for the adverse credibility findings that it made against the appellant, which led to the rejection of his claims. While such findings may be reviewed for jurisdictional error (see [21] above), I am not satisfied that the findings here were affected by any jurisdictional error because the Authority based them on the materials and considerations outlined in [7] and [28] above.

31    The Authority’s reasoning was a nuanced assessment of the claims that demonstrated its engagement with the original matters raised by the appellant and I am unable to discern any jurisdictional error in its process of reasoning nor in the conclusions that it reached.

Appeal submissions put by Mr Turner on 10 September 2018

32    The appellant’s first contention was that the Authority failed to carry out a de novo review of the appellant’s application and instead conceived of its task as supporting the Minister’s decision, particularly because it did not have regard to the World Policy Blog Report.

33    The second argument contested the Authority’s characterisation of the Sri Lankan Immigrants and Emigrants Act 1949 as a law of general application as it only applies to those who depart Sri Lanka illegally, and was found to have been applied inconsistently.

34    The third new ground asserted that the Practice Direction for Applicants, Representatives and Authorised Recipients, which limited the length of the appellant’s submissions, was invalid because it was inconsistent with s 473DF(2) of the Act by severely limiting the length of submissions provided.

35    The appellant’s final contention was that the Authority’s findings constituted a denial of procedural fairness because it made certain findings based on guesswork. (This was a different argument on procedural fairness to that propounded by the appellant in the original four grounds of appeal.)

Response to Mr Turner’s submissions

36    The first respondent filed supplementary submissions in response on 27 September 2018, in which it was acknowledged that, while these were grounds that aimed to expose error in the Authority’s decision (as opposed to the primary judge’s reasoning) and that were not advanced before the Federal Circuit Court, the appellant had been unrepresented and the first respondent was not prejudiced in meeting these new grounds, excepting the question of costs.

37    In response to the first new ground, the first respondent submitted that the Authority did provide reasons for its conclusion that it was not required to consider the document (at [4]). Moreover, it was observed that the Authority’s finding of past harm (at [15]) concerned what was described as “routine questioning” and did not relate to any suspicion that the appellant or his father had any involvement with transporting weapons or other activities with the LTTE, beyond carrying messages.

38    With respect to the second new ground, the first respondent stated that it was open to the Authority to characterise the Immigrants and Emigrants Act 1949 as a law of general application because it did apply generally to Sri Lankans who had breached Sri Lankan law without selective or discriminatory enforcement and that, in any event, the Authority provided (at [23]–[28]) other reasons in support of its conclusion that the appellant was not at risk of serious harm on account of any processes or penalties that he would face upon his return.

39    Addressing the third new ground, the first respondent made several contentions: that the Practice Direction was not a legislative instrument either by reference to s 8 of the Legislation Act 2003 (Cth) or general law principles; that s 473FB of the Act does not confer any entitlement for a submission to be made to the Authority in relation to the delegate’s decision or new information; that the Authority at all times retains a discretion to accept new information or to continue to hear from an applicant, notwithstanding non-compliance with the Practice Direction; and that there was no evidence that the appellant attempted to make a submission that exceeded the stated page limit.

40    In relation to the fourth and final new ground, the first respondent argued that the list of claims, found at [31] of the appellant’s submissions, that were said to be based on guesswork was better characterised as various ways of rejecting the available evidence, such as through findings that the appellant had exaggerated certain claims.

Consideration

The first (new) ground

41    As to the first ground, that the Authority did not carry out its statutory duty, the two points made were that: the Authority did not turn its mind afresh to the claims, having instead looked to see whether there was error; and secondly, that the Authority failed to act reasonably in not allowing the material in.

42    Mr Turner examined in detail the reasons of the Authority in an attempt to show that the Authority can be seen to have viewed its task as appellate, rather than de novo, review. With respect, I do not consider that the submission is made out. A fair reading of the reasons permits the (comfortable) conclusion that the Authority understood its task of review.

43    The second aspect of the first new ground was the failure to consider the World Policy Blog Report. It was said to have not been considered because of an overly narrow interpretation of s 473DD of the Act. Section 473DD is in the following form:

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.

44    It was submitted that the relevant circumstances were that: the World Policy Blog was dated 21 September 2016; the last entry in it was dated 23 September 2016; the delegate’s decision was 20 October 2016 (27 days later); and the appellant’s application had been made on 4 February 2016. The Authority stated at [4] of its reasons:

The applicant provided a submission to the IAA dated 30 November 2016 (“the IAA submission”). The IAA submission in part is the applicant’s response to the decision and repeats his claims before the delegate. I do not consider these parts of the IAA submission to be new information and I have had regard to them. The applicant attached to the IAA submission three reports from Tamil Net and one report from the World Policy blog. None of the reports were before the delegate. I consider all the reports are new information. The Tamil Net reports all post-date the delegate’s submission. They all refer to allegations of mistreatment by Sri Lankan security forces against Tamils. Two of the reports relate to Northern province, the other report is of events in Eastern province. None of the reports refer to acts of the security forces against people suspected of connection to the LTTE. I do not consider the Tamil Net reports are relevant to the applicant’s claims and I have not had regard to them. The World Policy blog pre-dates the delegate’s decision by less than approximately 4 weeks. The applicant has not provided an explanation why he was unable to provide the World Policy blog report to the delegate or why the report contains personal credible information that was unknown at the time of the delegate’s decision. I am not satisfied there are exceptional circumstances which justify my considering the World Policy blog and I have not had regard to it.

45    It was submitted that given the short time between the availability of the document and the delegate’s decision, the relevance of the document in that it was capable of influencing the consideration of the claims, and the matters that the Authority found in favour of the appellant, the decision not to find “exceptional circumstances” must have disclosed a misconception of the test.

46    The difficulty with this submission is that it was not shown that it could not have been provided to the delegate before a decision was made. Indeed, it was not submitted that it could not have been. Rather, it was submitted that the whole of s 473DD had not been addressed.

47    I reject these submissions. The last two sentences of [4] of the Authority’s reasons display a global approach to s 473DD, but not one that indicates any overly narrow construction. Amongst the pre-conditions for reception of new material is that contained in s 473DD(1)(b) – that the applicant persuades the Authority that any new information was not, and could not, have been provided to the Minister before a decision was made.

48    I also reject the submission that the Authority should have taken the World Policy Blog into account because it was a submission, and not new information. It was both and the Act set out the conditions for its reception.

49    Given the above matters, the relevance of the World Policy Blog to the claims is not determinative of whether there was an error.

The second (new) ground

50    The submission that the Immigration and Emigrants Act 1949 (Sri Lanka) is not a law of general application was to the effect that (a) it only applies to those who depart illegally; (b) it is applied inconsistently; and (c) that the law is directed primarily to failed asylum seekers.

51    I reject this submission. The characterisation of the law as one that applied to all Sri Lankan citizens. The Authority found at [29] of its reasons:

I am also satisfied that the provisions and penalties of the IAEA are laws of general application that apply to all Sri Lankans equally. The law is not discriminatory on its terms, nor is there country information before me that indicates that the law is applied in a discriminatory manner or that it is selectively enforced.

52    Further, there were other reasons expressed at [23]–[28] of the reasons as to why the Authority did not accept that there was a relevant risk of harm arising from the enforcement of the law in question.

The third (new) ground

53    The argument is that the Practice Direction so severely limits the length of submissions as to be inconsistent with the Act.

54    Section 473FB is relevantly in the following terms:

(1)    The President may, in writing, issue directions, not inconsistent with this Act or the regulations as to:

(a)    the operations of the Immigration Assessment Authority; and

(b)    the conduct of reviews by the Authority.

(2)    Without limiting subsection (1), the directions may:

(a)    relate to the application of efficient processing practices in the conduct of reviews by the Immigration Assessment Authority; or

(b)    set out procedures to be followed by persons giving new information to the Authority in writing or at interview.

…

(5)    The Immigration Assessment Authority is not required to accept new information or documents from a person, or to hear or continue to hear a person at an interview, if the person fails to comply with a relevant direction that applies to the person.

55    The Practice Direction relevantly stated in paras 20–24:

20.    For the purposes of the review, you may provide a written submission on the following:

    why you disagree with the decision of the Department

    any claim or matter that you presented to the Department that was overlooked.

21.    Any submission must be concise. It should identify and address the issues you want us to consider in our review. Your submission should be no longer than 5 pages and should be provided to us within 21 days of your case being referred to us by the Department. We may return longer submissions. If we return your submission we will give you a short deadline by which to provide a revised submission that complies with this direction. If you do not comply with that deadline we will make our decision without the benefit of your submissions.

22.    We can only consider new information (information that was not before the Department) in very limited circumstances as set out in section 473DD of the Migration Act. We must be satisfied that there are exceptional circumstances to justify considering the new information provided by either you or the Department.

23.    If you want to give us new information, you must also provide an explanation 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.

24.    Your explanation should be no longer than 5 pages and must accompany any new information you give to us.

56    As the first respondent submitted, an applicant may want to provide the Authority with different kinds of information. First, there is a submission as to why the applicant disagrees with the decision including as to why a claim or matter that was presented was overlooked. There is a limit of five pages on this: see paras 20–21. Secondly, new information may be presented. Thirdly, an accompanying explanation to new information, addressing the conditions in s 473DD may be provided to make it relivable. There is a limit of five pages on the explanation; but there is no limit on the new information.

57    Even if the Direction is a legislative instrument (see below) it cannot be said to detract from statutory rights or be ex facie unfair. The Direction is consistent with an expeditious hearing. The Authority nevertheless could hear the applicant even if the Direction were not complied with.

58    Further, the Full Court in DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12; 258 FCR 551 at [79]–[103] concluded that para 21 was not inconsistent with s 473DC or s 473DD, or an unreasonable exercise of power under s 473FB.

59    The argument also assumed that the Direction was a legislative instrument. It is not. It is not registered as a legislative instrument for s 8(3) of the Legislation Act 2003 (Cth). It does not purport to determine or alter the content of law: s 8(4) of the Legislation Act 2003 (Cth). Nor does it purport to alter the scope and content of the Authority’s powers under Pt 7AA of the Act; see Uelese v Minister for Immigration and Border Protection [2016] FCA 348; 248 FCR 296 at [45]–[47] and [54]. It is not issued by the Minister but by the President of the Authority. It is not legislative in character.

60    Further, to the extent that the argument can be seen as one based on unfairness to this applicant, there was no evidence that the Direction restricted him in any way.

The fourth (new) ground

61    The procedural fairness argument is based on the submission that the Authority’s findings were based on speculation and guesswork, and not reasonably probative material. Paragraph 31 of the supplementary submissions which contains the articulation of the argument is as follows:

Findings of the Authority based on guesswork:

a)    Appellant exaggerating his claims to suggest he was personally involved in assisting the LTTE, whereas he was merely carry [sic] out school activities, albeit LTTE related activities.

b)    Doubts about the frequency the Appellant claims he was questioned by the Sri Lankan authorities when travelling to and from school.

c)    Considered the new claims the Appellant made about his father transporting weapons for the LTTE to be another example of Appellant exaggerating his claims.

d)    Not accepting that the Appellant’s father was caught or assaulted by the Sri Lankan authorities and then released in 2015.

e)    Rejecting the claims that the contents of the LTTE messages were maps or related to hospitals or troop movements.

f)    Not accepting that the Appellant’s father was in hiding, had disappeared or was missing.

g)    Rejecting the Appellant’s claims that that [sic] his father transported weapons for the LTTE and was paid to do so by Singhalese people and the Sri Lankan authorities are looking for or targeting the Appellant’s father on suspicion of him transporting weapons for the LTTE.

h)    Rejecting the Appellant’s claims that the Sri Lankan authorities have questioned the Appellant’s mother, school and friends about his whereabouts in relation to their suspicion that the Appellant and his father had any involvement with transporting weapons or other activities with the LTTE, beyond carrying messages.

62    With respect, these findings, individually or collectively, do not display guesswork, irrationality, unreasonableness or an inattendance to the statutory task. The Authority did not require positive evidence before rejecting a factual assertion: Selvadurai v Minister for Immigration and Ethnic Affairs [1994] FCA 301; 34 ALD 347 at 348, cited by the Full Court in CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 at [65].

Conclusion

63    None of the new grounds is made out.

64    The appeal should be dismissed with costs.

Associate:

Dated:    8 March 2019