FEDERAL COURT OF AUSTRALIA

CSF17 v Minister for Home Affairs [2019] FCA 569

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to adduce fresh evidence on appeal be dismissed.

2.    The application for leave to amend the grounds of appeal be dismissed.

3.    The appeal be dismissed.

4.    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

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): see CSF17 v Minister for Home Affairs & Anor [2018] FCCA 2611. The IAA had affirmed a decision of a delegate (Delegate) of the First Respondent (Minister) not to grant the Appellant a safe Haven Enterprise (Class XE 790) visa (SHEV).

Background

2    The Appellant is a Sri Lankan Tamil who arrived in Australia by boat in October 2012. On 14 March 2016, the Appellant applied for a SHEV. The Delegate refused to grant the Appellant a SHEV on 11 January 2017. On 29 May 2017, the IAA affirmed the Delegate’s decision (the First IAA Decision). The Appellant sought judicial review of the First IAA Decision, and on 24 August 2017 the following orders were made by the FCCA:

BY CONSENT THE COURT ORDERS THAT:

1.    A writ in the nature of certiorari issue, quashing the decision of the Second Respondent [being the IAA] dated 29 May 2017 in the matter bearing IAA reference: IAA17/01758.

2.    A writ in the nature of mandamus issue remitting the matter to the Second Respondent for redetermination according to law.

3.    The First Respondent pay the Applicant’s costs, being the filing fee, and any setting down fee, if levied and paid.

…

THE COURT NOTES THAT:

1.    The First Respondent concedes that the decision of the Second Respondent is affected by jurisdictional error in that the Second Respondent failed to deal with an integer of a claim which clearly arose on the material before it. If accepted, that claim was capable of affecting the Second Respondent’s finding as to whether the applicant would face serious harm: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1.

2.    In particular, the Second Respondent had before it a record of the applicant’s entry interview which indicated that the applicant claimed that he had been forced to train with the Liberation Tigers of Tamil Eelam (LTTE) in preparation for conflict. Despite this, at [22] of its decision, the Second Respondent found that the applicant had “not made any direct claims that he personally was ever associated with the LTTE”.

3    The IAA conducted a second review of the Delegate’s decision and, on 23 February 2018, the IAA again affirmed the Delegate’s decision not to grant the Appellant a SHEV (the Second IAA Decision).

4    The Appellant’s claims as summarised in the Delegate’s decision are as follows:

•    He is a Tamil from Trincomalee.

•    He was approached to join and fight with the Tamil Eelam Liberation Organisation (TELO) when he was about 17. A month later he left his area and would travel between Batticaloa and Colombo as his mother had arranged for him to leave. He was doing this when around June 1990 he was caught by the Sri Lankan Army (SLA) at Trincomalee. He and many others were accused of being LTTE. The others were all lined up and killed but, being at the end of the line, he escaped before he was killed. He was rescued and resumed travelling between Batticaloa and Colombo.

•    In 1991 he went to Qatar because it was not safe in Sri Lanka. He returned in 1996 for three months. The Sri Lankan navy base was close to his house. Navy officers saw him and asked questions about where he had been. They threatened him because he was Tamil and must therefore be involved in the LTTE.

•    Shortly after he left for Singapore and then Saudi Arabia.

•    In 2001 naval officers set his father on fire because he was Tamil. His father died. His wife and her family also had problems with the forces.

•    He returned to Sri Lanka in 2009. He bought a van and a truck and used to deliver wholesale vegetables to shops. He drove all around Sri Lanka.

•    Around 2010 he was delivering vegetables from Dambulla to Trincomalee. Police stopped him at a checkpoint, forced him out of the car and told him to unload all the vegetables. He resisted, telling them the war was over, there was no need for this. The police threatened to shoot him if he did not comply, so he did. He was targeted because he was Tamil; Sinhalese drivers were able to pass.

•    At a big checkpoint at Mankulan on the Jaffna road the police put cartridges in the back of his lorry when he went to register his documents. His assistant observed this and told him. He approached someone about the matter who reported it to someone higher up. This person told him to shut up, broke his SIM card, told him to go and not to come back or there would be problems.

•    He was often followed by police who did not want him to drive throughout Sri Lanka but remain in Trincomalee. This was because they knew he had money and would often demand money or liquor from him. If he refused they threatened to kill him. They would abuse him for being Tamil.

•    He had a shop near Trincomalee. Every day the police would come to take money and steal goods. His family were scared of the police and said nothing. He went to the police station and made a complaint to the police chief who spoke to the officers he accused. They said he was lying. Because the majority of police are Sinhalese they did not believe him.

•    Because he attempted to make a complaint he was arrested by police and put in gaol and threatened he would be murdered for speaking out. He was friendly with one of the officers and he got him out that day. The officer advised him it was not safe to remain in Sri Lanka.

•    In 2015 he was able to buy his wife a motorcycle to allow her to run errands but his wife said it is dangerous for her to have a motorbike because it draws unwanted attention from the police.

•    Since coming to Australia, he has received threats from the police. On 24 December 2012 the police came to his home and asked his wife where he was. She told them he was in Qatar. They said she was lying and they would make enquiries.

•    They will continue to go after him because he is a Tamil perceived to have money and who owned a successful business. Because he has been away a long time, they would think he had earned a lot of money. But they may target him because of his past suspected support for the LTTE.

•    Recently the navy came to his house and asked about him. His house is close to the naval base and they know who lives in the area. They would know who he is because he owned a shop and had money.

•    If he returns he will be subjected to imprisonment, torture and death from the authorities, including the police and navy.

•    He will also experience problems as a failed asylum seeker because the authorities detain and question people about where they were and what they were doing. He will be perceived to have let the country down and to have been speaking against the government because he left.

•    He departed Sri Lanka without his passport.

The Second IAA Decision

5    The IAA summarised the background to the review at [1]-[4]. It set out the information that had been before it as follows:

5.    I have had regard to the material given by the Secretary under s.473CB of the Migration Act 1958 (the Act).

6.    The applicant provided a submission dated 18 January 2017 to the IAA. The submission contains new information which was not given to the delegate, which was that on 25 December 2016 the applicant’s nephew’s motorbike was broken and he was beaten by the Criminal Investigations Department (CID) in Sri Lanka. During the attack he was told that members of “their family” should not be doing business. The CID also asked [about] the applicant’s whereabouts. Before this the CID had approached the applicant’s wife and demanded that she pay them money. She did not do so and the applicant believes this was why his nephew was attacked.

7.    The alleged attack on the applicant’s nephew and the threat to the applicant’s wife occurred before the delegate’s decision was made on 11 January 2017. Even though the attack on the nephew, at least, occurred not long before the finalisation of the decision, the applicant has not provided any reason why the information could not have been provided to the delegate before the decision was made, and he has not satisfied me that this is the case. The applicant has also not satisfied me that the information is credible personal information that may have affected consideration of his claims. The information provided in the submission is quite vague and lacking in detail or context; the relevance to the applicant’s circumstances of the comment that the family should not be doing business is not apparent, given that he is, in fact, no longer doing business in Sri Lanka. It is not apparent why the applicant believes the attack on his nephew was connected with the threat to his wife. Nor does it seem particularly credible that this apparently new demand and threat would occur so long after the applicant’s departure, given the evidence of little subsequent interest in him or his family, apart from the incidents he told the delegate about which occurred in late 2012 and possibly around early 2016, which did not involve the CID. Overall, and given the limited probative value of the new information, I am also not satisfied that there are exceptional circumstances to justify considering it.

8.    The applicant also provided new information that his relatives had recently told him that a Tamil man who was returned to Sri Lanka from Australia was gaoled for five days and the CID had demanded ten lakhs for his release. The applicant’s family had not told him anything more about the fate of this man. It is not clear when this incident occurred and the applicant has not satisfied me that the information could not have been given to the delegate before the decision was made. Nor has he satisfied me that it is credible personal information which may have affected consideration of his claims, as there is nothing to suggest that the circumstances of this man – apart from the fact that he was a Tamil man returned from Australia – are similar to those of the applicant. Given that the information is of limited relevance or assistance in assessing the applicant’s claims, and given that the delegate considered other information about the treatment of Tamils returning to Sri Lanka from other countries including Australia, I am also not satisfied that there are exceptional circumstances to justify considering it.

9.    The applicant provided new country information consisting of a report by the United Nations Committee against Torture, published in December 2016, and a newspaper article about that report, also published in December 2016. The reports pre-date the delegate’s decision and the applicant has not satisfied me that they could not have been provided to the delegate before the decision was made. Nor has he satisfied me that they are credible personal information that may have affected consideration of his claims, as the reports contain general information about the human rights situation in Sri Lanka which is of little direct relevance to the situation of the applicant given the factual findings I have made about his circumstances. I am also not satisfied that there are exceptional circumstances which justify considering the reports, particularly given that the delegate considered country information from a wide range of sources covering similar issues.

10.    In accordance with s.473DC(1) of the Act I have obtained new information, that being the most recent Department of Foreign Affairs and Trade (DFAT) Country Information Report for Sri Lanka, which is dated 24 January 2017 and was therefore published after the date of the delegate’s decision and could not have been given to the delegate. The information is relevant because it relates to the situation of Sri Lankans who have departed Sri Lanka illegally and sought asylum; and also about the treatment of the Tamil population by security forces in areas of northern and eastern Sri Lanka formerly occupied by the LTTE, and the circumstances of that population under current political and security conditions. The delegate considered information in the 2015 DFAT Report for Sri Lanka, which provides a similar assessment to that in the later Report, but the 2017 report is DFAT’s most recent assessment and contains the most up to date information. I am satisfied that there are exceptional circumstances to justify considering this new information: s.473DD(a).

(Footnotes omitted.)

6    The IAA considered whether the Appellant was a refugee for the purposes of s 5H(1) of the Migration Act 1958 (Cth) (the Migration Act) (at [11]-[40]) and concluded that the Appellant did not meet the requirements of that section and consequently did not satisfy s 36(2)(a) of the Migration Act. The IAA then considered whether the Appellant satisfied the complementary protection provisions contained in s 36(2)(aa) and concluded that, as there were no substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there was a real risk that the Appellant would suffer significant harm.

FCCA Decision

7    Before the primary judge, the Appellant relied on a single ground of review that took issue with the IAA’s reasons for having rejected new information submitted by the Appellant by his 18 September 2017 submissions. That ground as advanced before the primary judge is set out at [24] of the primary judge’s reasons as follows (unaltered):

1.     The IAA adopted an unduly narrow construction of s473DD by confining its determination of the new information to whether or not the applicant provided an explanation in accordance with the Practice Direction 1. At [6] - [8] the IAA reasoned that s failure to provide an explanation was determinative of the matters set out in s473DD. In doing so, it constructively failed to exercise its jurisdiction under s473DD.

2.     Particulars

a.     On 11 January 2017 the delegate refused the applicant’s protection visa application;

  b.     On 29 May 2017 the first IAA affirmed the delegate’s decision;

c.     The applicant sought judicial review of the IAA decision and on 24 August 2017, by consent, the Court quashed the decision of the first IAA and remitted the matter for redetermination according to law;

d.     The applicant provided a submission dated 18 January 2017 to the second IAA;

  e.     The 18 January 2017 submissions contained new information that:

i.     On 25 December 2016 the applicant’s nephew’s motorbike was broken and he was beaten by the CID;

ii.     During the attack the applicant's nephew was told that member of “their family” should not be doing business;

   iii.     The CID also asked the applicant’s whereabouts;

iv.     The CID had also approached the applicant’s wife and demanded that she pay them money. She did not do so and the applicant believes that was why his nephew was attacked;

v.     A Tamil man who was returned to Si Lankan from Australia was goaled for 5 days and the CID has demanded 10 Lakhs for his release;

vi.     No explanation why the applicant could not have provided to the delegate before the decision;

f.     There were only 18 days (over the Christmas/New Year break) between the nephew being attacked on 25 December 2016 and the delegate making the decision on 11 January 2017. The submission dated 18 January 2017 reveals the applicant’s intention to give the new information to the delegate but the delegate made the decision first. This reasoning by the IAA is also legally unreasonable.

8    In her Honour’s judgment, the legislative framework is set out as follows:

9.    Part 7AA provides for review of “fast track reviewable decisions” by the Authority. Under s.473CB, the Secretary of the Department of Immigration and Border Protection must give the Authority specified “review material” in respect of each fast track reviewable decision referred by the Minister, including “material provided by the referred applicant to the person making the decision before the decision was made”.

10.    The Authority is limited in its use of new information in undertaking its review. Section 473DB of the Act requires the Authority to review the Delegate’s decision by considering the “review material” without accepting or requesting new information, and without interviewing the applicant. However, under s.473DC(1) of the Act, the Authority may get any new information. “New information” is defined in s.473DC(1) as information that:

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

   (b)     the Authority considers may be relevant.

11.    Section 473DD of the Act sets out the circumstances in which the Authority may consider “new information” 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.

12.    The requirements in s.473DD(a) and (b) are cumulative, that is, the Authority cannot consider new information unless the requirements of both paragraphs (a) and (b) are met. The matters prescribed in s.473DD may inform the Authority’s consideration of whether exceptional circumstances exist. As summarised by the written submissions of the Minister, AQU17 v the Minister for Immigration and Border Protection [2018] FCAFC 111 at [17] held that to make good a contention of jurisdictional error, where the argument is that the Authority took too narrow a view of what constitutes exceptional circumstances, an applicant must point to some:

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.

9    The primary judge then set out the new information that the Appellant had provided in his 18 January 2017 submissions as follows:

14.    As I have said, the Applicant made a submission to the Authority dated 18 January 2017. In that submission, the Applicant made claims which had not been made previously. They had not been raised in his arrival interview, his SHEV application or at the Delegate’s interview. The letter stated, under the heading “New Personal Information to be Considered”:

On the 25 December 2016 my nephew’s motorbike was broken and he was beaten by the Criminal Investigations Department (CID) in Sri Lanka. My nephew tells me that members of the CID who attacked him said that our family should not being doing business. The CID also demanded my nephew tell them my whereabouts. My nephew lied and said that I was in Qatar. Prior to this the CID had also approached my wife and demanded she pay them 1 Lak. The CID threatened her and said if she did not pay she would be in trouble and she could not tell anyone. My wife has not paid the money and I believe this is why the CID attacked my nephew.

My relatives have also recently told me that a Tamil man who was returned from Australia was jailed for 5 days. The CID said that he had to pay 10 Laks to be released, which he did. My family has not told me if he was tortured, or if he is still alive now as they would not want to upset me with these details.

15.    The remainder of the letter provided country information, claiming it was new information published in December 2016, and made submissions in relation to torture and abduction practices against Tamils in Sri Lanka. The Applicant did not in the letter say why the information could not have been provided to the Delegate, whether the information was credible personal information, or whether there were exceptional circumstances that justified the Authority considering the information.

10    The primary judge then referred to the relevant parts of the IAA’s decision as follows:

16.    The Applicant’s ground of review focuses on [6], [7] and [8] of the Authority’s reasons. The Authority at [6] summarised the extract from the letter I have already referred to [set out in her Honour’s reasons at [14]-[15]], and then, in [7] and [8], said as follows:

[7]     The alleged attack on the [A]pplicant’s nephew and the threat to the [A]pplicant’s wife occurred before the [D]elegate’s decision was made on 11 January 2017. Even though the attack on the nephew, at least, occurred not long before the finalisation of the decision, the [A]pplicant has not provided any reason why the information could not have been provided to the [D]elegate before the decision was made, and he has not satisfied me that this is the case. The [A]pplicant has also not satisfied me that the information is credible personal information that may have affected consideration of his claims. The information provided in the submission is quite vague and lacking in detail or context; the relevance to the [A]pplicant’s circumstances of the comment that the family should not be doing business is not apparent, given that he is, in fact, no longer doing business in Sri Lanka. It is not apparent why the [A]pplicant believes the attack on his nephew was connected with the threat to his wife. Nor does it seem particularly credible that this apparently new demand and threat would occur so long after the [A]pplicant’s departure, given the evidence of little subsequent interest in him or his family, apart from the incidents he told the [D]elegate about which occurred in late 2012 and possibly around early 2016, which did not involve the CID. Overall, and given the limited probative value of the new information, I am also not satisfied that there are exceptional circumstances to justify considering it.

[8]     The [A]pplicant also provided new information that his relatives had recently told him that a Tamil man who was returned to Sri Lanka from Australia was gaoled for five days and the CID had demanded ten lakhs for his release. The [A]pplicant’s family had not told him anything more about the fate of this man. It is not clear when this incident occurred and the [A]pplicant has not satisfied me that the information could not have been given to the [D]elegate before the decision was made. Nor has he satisfied me that it is credible personal information which may have affected consideration of his claims, as there is nothing to suggest that the circumstances of this man – apart from the fact that he was a Tamil man returned from Australia – are similar to those of the [A]pplicant. Given that the information is of limited relevance or assistance in assessing the [A]pplicant’s claims, and given that the [D]elegate considered other information about the treatment of Tamils returning to Sri Lanka from other countries including Australia, I am also not satisfied that there are exceptional circumstances to justify considering it.

17.    The Authority otherwise accepted a number of claims made by the Applicant, in terms of the Applicant’s explanations and chronology. The Authority accepted the following, and limited its findings as follows:

(a)    that the Applicant’s father was killed in appalling circumstances in 2001 by the Sri Lanka Navy, and that his wife and members of her family also suffered during the war as the Applicant claimed in his statement. The Authority considered, however, that “these events occurred in the specific context of the civil war and have no bearing on the future risk of harm faced by the [A]pplicant” (at [14]);

(b)    that the Applicant was approached by TELO. On the basis of independent country information, the Authority accepted that the claim that the Applicant had trained with the LTTE was “broadly plausible”, and that he was “forced to do training with a Tamil militant organisation”. The Authority found that the training “lasted for only a brief time and occurred prior to 1991” (at [16], [20]);

(c)    although the Authority accepted that the Applicant had been accused of being with the LTTE, it appeared to the Authority that this was an “accusation made purely on the basis of his Tamil ethnicity and place of residence and in the context of wartime security operations, rather than because of any specific information that the authorities had about his activities” (at [16]);

(d)    that, in 1990, the Applicant had been detained with 70 others by the SLA on suspicion of being with the LTTE and had managed to escape;

(e)    that the Applicant had been targeted for extortion as a “Tamil who was perceived to have money”, but the credible evidence did not support a conclusion that the Applicant was targeted specifically because of his past suspected support for the LTTE. The Authority noted the Applicant’s claim that, after this 1990 incident, he went to Saudi Arabia to work and remained in the Middle East and Singapore for most of the next 20 years, until 2009 when he returned to Sri Lanka (at [17]). The Authority noted that the Applicant was able to travel in and out of Sri Lanka on several occasions over that period without difficulty, and the Authority was satisfied that he was of no adverse interest to the authorities at that time;

(f)    the Authority accepted that he was questioned by officers of the Sri Lankan Navy during a visit home in 1996, but was satisfied, on the basis of his account, that this was a routine incident in which the Applicant was targeted because he was a Tamil, and not because he had done anything in particular to bring him to the adverse attention of the authorities. Whilst country information indicates that, during the war, Tamils were routinely subjected to cordon and search operations, the Applicant does not claim to have had any similar experiences since the war ended in 2009 (at [18]);

(g)    the Authority, in relation to his wife, accepted that the police questioned his wife about his whereabouts in December 2012, but did not accept that this was because of his past support for the LTTE, rather, the Authority considered it more likely that the police were enquiring about the Applicant either because they intended to demand money from him, or because they suspected that he may have departed illegally. The Authority was not satisfied that these enquiries indicated there was any real chance that the Applicant faced harm on return for any reason (at [30]).

(h)    the Authority found that, on the basis of the Applicant’s evidence about his past activity and experiences, and, given the changed security conditions in Sri Lanka indicating a different focus on the part of the authorities as to who might be of adverse interest in relation to LTTE connections or activity, it was satisfied there is no real chance that the Applicant would be subjected to harm now, or on return to Sri Lanka, in the reasonably foreseeable future, because of actual or suspected LTTE connections;

(i)    the Authority records the Applicant’s claim that, when he returned from the Middle East, he bought a shop in Trincomalee and a lorry, which he drove around northern and eastern Sri Lanka, buying vegetables for resale. The Authority noted his evidence indicated he had another vehicle, which he used to courier parcels from Colombo to Trincomalee. The Authority was prepared to accept the Applicant’s account that he was, at various times, stopped at check-outs, and that the police tried to provoke him, and that they would come to his shop every day and demand soft drinks, cigarettes and money. Sometimes they were drunk;

(j)    the Authority observed that the Applicant had provided slightly different details of these events at various times, however the overall account was broadly consistent and the Authority was prepared to accept that the events happened broadly as he described, and that his account of being targeted for extortion as a Tamil who was perceived to have money was also consistent with country information considered by the Delegate.

18.    The credible evidence, however, in the Authority’s view, did not support a conclusion that the Applicant was targeted specifically because of his past suspected support for the LTTE. Given his limited connection with any armed group and the length of time since it occurred, the Authority was not satisfied that this played any part in the mistreatment of the Applicant after 2009, some 20 years later. The Authority recited the evidence of the Applicant regarding his businesses, and that he made good money from his businesses, and that the shop continued to operate under his brother after the Applicant left Sri Lanka until his brother died in 2015.

19.    On balance, the Authority considered that the Applicant’s evidence was that, when he sold the shop after his brother’s death, he made a loss, but the Authority was not satisfied that this was to do with the extortion. The fact that the shop continued to operate from 2009 until 2015 indicated, in the Authority’s view, that the demands of the police for soft drinks, cash and cigarettes did not threaten the capacity of the Applicant to earn a livelihood from the shop (at [25]).

20.    The Authority concluded that, whilst demonstrating a disturbing level of corruption on the part of the police, the credible evidence does not indicate that this extortion reached the threshold for serious harm. It did not support a finding that the financial consequences of having to provide goods and cash threatened the Applicant’s capacity to earn a livelihood or to subsist (at [26]).

21.    The Authority considered the reasonably foreseeable future and did not accept, on the evidence, that the Applicant would be killed by the police if he returns to Sri Lanka. The Authority observed at [27]:

It is not clear why the [A]pplicant thinks that this might happen. I’m not satisfied that there is any evidence to indicate that his life was in danger prior to his departure, or that the police would wish to kill him, because of anything that happened prior to his departure. The evidence indicates and suggests that, if the police thought they could continue to obtain benefits from the [A]pplicant, there is no reason why they would wish to kill him. I note, in any case, that the [A]pplicant sold his vehicle to fund his travel to Australia. His shop was operated by his brother until 2015, when his brother, sadly, died. The shop, too, has now been sold. How the [A]pplicant might make a living on return to Sri Lanka is a matter for speculation, although I am satisfied that, given his history, he will be able to do so. However, as it seems doubtful that the [A]pplicant would have the particular businesses that he did before coming to Australia, I am not satisfied that he would continue to be a target for extortion if he were to return to Sri Lanka. I consider that the [A]pplicant’s claim that he would be targeted, because he would be perceived to be wealthy, having returned from Australia, to be highly speculative and it appears that any such suspicion would most likely not be borne out by the [A]pplicant’s actual circumstances on return.

22.    At [28], the Authority considered country information and stated that the information no longer refers to criminal activity, such as extortion, being a major problem in eastern Sri Lanka. The Authority concluded at [29]:

Overall, considering his past experiences, his likely circumstances on return, and the country information indicating that there is likely to be less corrupt activity and more capacity to seek redress if the [A]pplicant returns to Sri Lanka now or in the reasonably foreseeable future, I am not satisfied that there is a real chance that he would face extortion, or consequent threats to his life or safety, such as to amount to serious harm if he returns.

23.    The Authority then considered the inquiry since the Applicant’s departure, but was not satisfied that these claims demonstrated a real chance of harm to the Applicant (at [30]–[32]). The Authority was not satisfied that the Applicant faced a real chance of persecution on return to Sri Lanka as a Tamil male who sought asylum for leaving Sri Lanka illegally (at [33]–[40]), and the Authority, in conclusion, was not satisfied that the Applicant satisfied either the refugee protection criterion or the complementary protection criterion for the grant of a SHEV (at [41], [49], respectively).

11    The Appellant had been self-represented and had appeared with the assistance of an interpreter before the primary judge. The Appellant had made oral submissions to the effect that he had had assistance in the preparation of the letter but did not make submissions regarding its content. Her Honour’s consideration of this ground appears at [30]-[36]:

30.    As I have said, the Applicant’s ground focuses on [6], [7] and [8] of the Authority’s reasons which I have referred to above. It is only necessary that one of the findings of the Authority, in those paragraphs, be sustained. Because the requirements of s.473DD are cumulative, even if one of the findings is affected by error, so long as the other finding is not, then whatever error the Authority might have made could not be jurisdictional (see BRA16 v Minister for Immigration and Border Protection [2018] FCA 127 at [26]).

31.    Whilst the Applicant’s use of the expression “unduly narrow” in his grounds invokes the language of BVZ16 v Minister for Immigration and Border Protection [2018] FCA 127, I do not consider there is any foundation for a similar conclusion in this case, having regard to the Authority’s findings at [7] and [8]. The Authority has demonstrated an engagement with the substance of paragraph (b) of s.473DD, because the Authority found that, first, the information provided in the 18 January 2017 letter was “quite vague and lacking in detail or context”, and secondly, the relevance to the Applicant’s circumstances of the comment that the family should not be doing business is not apparent, given that he is, in fact, no longer doing business in Sri Lanka (and I note that the Authority dealt with the Applicant’s business history at [22], [23], [25], [27], as I have identified above).

32.    The Authority also found that the timing of the attack on the Applicant’s nephew did not seem “particularly credible”, as it occurred so long after the Applicant’s departure, given the evidence that the Applicant or his family had been of little subsequent interest, apart from the incidents he had told the Delegate about in late 2012 and, possibly, around early 2016, which did not involve the CID (which group the submission identified as related to the attack). The Authority considered that the information was of “limited probative value”.

33.    In my view, the Authority’s consideration tells positively against a conclusion that the Authority adopted an unduly narrow construction of exceptional circumstances, or, indeed, a narrow construction of the circumstances.

34.    Further, the Applicant did not advance any reasons in support of a contention that there were exceptional circumstances to justify considering the new information. I have referred previously to AQU17 at [17]. The Authority, at [8] to [10], considered the other new information that the Applicant had provided in the letter of 18 January 2017, and was not satisfied, for the reasons it gave, that there were exceptional circumstances to justify it. For the reasons the Authority gave, I find that the Authority did not err.

35.    Particular (f) of the ground of review is to the effect that there were only 18 days between the Applicant’s nephew being attacked and the Delegate making her decision, and that the letter of 18 January 2017 reveals the Applicant’s intention to give the new information to the Delegate. The Applicant’s particular asserts that the reasoning by the Authority is also legally unreasonable. Why this is so, is not made clear. No other particulars are provided. If the Applicant contends that the Authority ought to have taken into account the short period of time between the attack on the Applicant’s nephew and the date of the Delegate’s decision, the Authority expressly took that matter into account at [7], when it said:

Even though the attack on the nephew, at least, occurred not long before the finalisation of the decision (the [D]elegate’s decision), the [A]pplicant has not provided any reason why the information could not have been provided to the [D]elegate before the decision was made, and he has not satisfied me that this is the case”.

36.    The Authority’s assessment of the “new information” was orthodox and considered. There is no error apparent on the part of the Authority.

12    The primary judge concluded that the IAA did not fall into jurisdictional error and dismissed the application for judicial review.

The appeal

13    The notice of appeal initially filed before this Court advances a single ground of appeal (without alteration):

The Federal Circuit court failed to find, in respect of the IAA’s reasoning that the IAA declined its jurisdiction to me on the basis of grounds including the main grounds stated in my Federal Circuit Court Application filed at the Federal Circuit Court on 15 March 2018. Further Grounds with particulars of the grounds will be filed and served in my Amended Notice of Appeal when court orders it.

14    The Appellant filed an affidavit dated 17 September 2018, deposing (without alteration):

2.    I propose to seek further legal advices in respect of the Federal Court Application once I have obtained the transcript of the FCC’s hearing and judgment.

 3.    I do not agree with the IAA’s and the Federal Circuit Court’s decision.

4.    I rely on facts and grounds of review stated in my Federal Circuit Court Application and in the Form 121 to leave to appeal.

 5.    I still fear persecution in my home country.

15    On 27 January 2019 the Appellant emailed the Court requesting an adjournment of the 14 February 2019 hearing as he wished to be represented but his solicitor and barrister of choice were not available. The Appellant proposed alternative dates in March and April 2019. The Minister’s lawyer advised that he neither consented to nor opposed the application for an adjournment. My chambers advised the parties that any application for an adjournment should be supported by an affidavit setting out the relevant facts and circumstances relied upon, and would be heard and determined on 14 February 2019. The parties were advised that they should prepare for the hearing of the substantive appeal on 14 February 2019 if the adjournment were not granted.

16    On 8 February 2019 the Appellant filed a formal interlocutory application seeking orders that the 14 February 2019 hearing of the appeal be vacated and proposing alternative dates. The Appellant filed an affidavit in support of that interlocutory application deposing as follows:

2    I have not instructed a lawyer to appear for me at the hearing yet because the solicitor I wish to retain (Mr. Senthil Rajan) is unfortunately already appearing in another case at the same time. Mr Senthil Rajan is familiar with my case and has previously provided me with advices [sic]. He is a sole practitioner and is unable to send another solicitor from his office to represent me.

3    I have been advised Mr. Senthil Rajan wishes to brief Mr. Foster of Counsel who is also familiar with my case but who is appearing with Mr. Senthil Rajan in the other case.

4    I request that the hearing date be changed to a date where both lawyers are available to appear for me. I am advised their suitable dates are: weeks commencing March 18, 20, 21, 27, 28, 29, April 3, 4, 5, 10, 11, 12, 15, 16, & 18.

17    When this matter came before me on 14 February 2019, notwithstanding the position the Court had been earlier advised, the Minister by his solicitor indicated that the application for an adjournment was opposed on the basis that there was no material before the Court to indicate that the Appellant had actually taken steps to secure representation. The Minister’s solicitor noted that the notice of appeal had been filed in September yet as of February no notice of acting had been filed by any lawyer on the Appellant’s behalf, nor had the Minister received any correspondence from any lawyer purporting to act for the Appellant. The Minister however accepted that there would be no prejudice to him if the adjournment were granted, except for the costs in relation to the 14 February 2019 hearing. I was unpersuaded that in the circumstances applying I should not grant an adjournment.

18    I made the following orders:

 1.    The hearing of the appeal be adjourned to 27 March 2019.

2.    Any solicitor engaged by the Appellant file a notice of acting no later than 4.00 pm on 21 February 2019.

3.    Any application to amend the grounds of appeal be filed no later than 4.00 pm on Friday 28 February 2019.

4.    The Appellant file and serve any written submissions 10 business days before the hearing.

5.    The Minister file and serve any responsive written submissions 5 business days before the hearing.

 6.    Costs be reserved.

19    On 22 February 2019 a notice of acting was filed on behalf of the Appellant. On 1 March 2019 an amended notice of appeal was filed. On 18 March 2019 an affidavit of Senthil Rajan Sinnarajah was filed, deposing that the Appellant seeks leave to put before the Court two documents referred to in the amended notice of appeal that had not been reproduced in the Appeal Book. Those two documents are identified as a DFAT Country Report dated 24 January 2017 and a UNHCR document entitled “Eligibility Guidelines for Assessing the International Protection needs of Asylum Seekers from Sri Lanka” dated 21 December 2012. At [6] the deponent states that those documents are attached to the affidavit. No such copies are annexed.

20    The Appellant did not file and serve written submissions prior to the 27 March 2019 hearing, but his counsel indicated that they had been prepared and provided to the Minister’s solicitor, and that they could be filed that day. I gave leave for those submissions to be filed.

Grounds of appeal

21    The Appellant’s proposed amended grounds of appeal are as follows (unaltered):

Grounds of appeal

The Federal Circuit court failed to find, in respect of the IAA’s reasoning that the IAA declined its jurisdiction to me on the basis of grounds including the main grounds stated in my Federal Circuit Court Application filed at the Federal Circuit Court on 15 March 2018. Further Grounds with particulars of the grounds will be filed and served in my Amended Notice of Appeal when Court orders it.

The Appellant seeks leave to rely upon the following Grounds not argued before the Federal Circuit Court and to adduce further evidence:

A.    The IAA erred when it misstated the DFAT Country Report 24 January 2017, such misstatement excluding the Appellant from monitoring, arrest, detention or prosecution in Sri Lanka, when the DFAT report did not so exclude him.

Particulars

i.    At Paragraph 19 of its decision [CB291] the IAA stated inter alia: ‘DFAT’s most recent report assesses that individuals now at risk, should they come to the attention of the authorities, are any members of the LTTE’S leadership who have not been apprehended: former members who committed terrorist or serious criminal acts during the conflict or who provided weapons or explosives to the LTTE: former combatants and the LTTE members employed in administrative or other roles: those who provided a high level of non-military support to the LTTE during the conflict: and people suspected of seeking to revive the LTTE or undermine the unified Sri Lankan state, including in some cases through activities undertaken outside Sri Lanka’;

ii.     Footnotes references were to paragraphs 3.9. 3.38-3.43. 3.44-3.45;

iii.     A perusal of these portions of the DFAT 2017 report reveals that the DFAT report does not limit interest by Sri Lankan authorities to these groups, merely stating those at highest risk of monitoring, arrest, detention or prosecution included former leadership [Para 3.38 [CB291]. The DFAT report thereafter discusses remaining high profile high risk, or hard core former members (3.40), low-profile LTTE members (3.42), and high Profile leaders of pro-Tamil diaspora groups (3.45).

iv.     Accordingly the IAA misunderstood the evidence, or otherwise made a decision no reasonable decision maker would make, in coming to the conclusion that it was not satisfied there is a real chance that the Applicant faces serious harm amounting to persecution for reasons of his Tamil ethnicity or because of imputed LTTE links on return to Sri Lanka. [CB266]

B.     The IAA erred when it referred to the “UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka” 21 December 2012, but failed to refer to that portion of the report which categorised the Applicant as a person who may need international Protection.

Particulars

i.     The IAA referred to the 2012 UNHCR report at paragraph 19 [CB291]:

  ii.     The UNHCR report stated at 27:

“However, previous (real or perceived) links that go beyond prior residence within an area controlled by the LTTE continue to expose individuals to treatment which may give rise to a need for international refugee protection, depending on the specifics of the individual case. The nature of these more elaborate links to the LTTE can vary, but may include people with the following profiles:

1)     Persons who held senior positions with considerable authority in the LTTE civilian administration, when the LTTE was in control of large parts of what are now the northern and eastern provinces of Sri Lanka:

   2)     Former LTTE combatants or “cadres”; ...”

iii.    The IAA accepted the Applicant was forced to do training with a militant organisation [CB290/1], and so, having trained, would be a combatant or ‘cadre’ and fit within category 2.

v.     In failing to consider this aspect of the UNHCR report, the IAA erred when it failed to take into account a matter which the IAA was obliged to do or otherwise made a decision no reasonable decision maker would make it was not satisfied there is a real chance that the Applicant faces serious harm amounting to persecution for reasons of his Tamil ethnicity or because of imputed LTTE links on return to Sri Lanka. [CB266]

(Emphasis in original.)

Leave to adduce new evidence on appeal

The Appellant’s submissions

22    The written and oral submissions made on the Appellant’s behalf did not address whether leave ought to be granted to adduce new evidence on appeal.

The Minister’s submissions

23    By supplementary submissions filed 20 March 2019, the Minister observes that, pursuant to s 27 of the Federal Court of Australia Act 1976 (Cth) (FCA Act) the Court has power to received additional evidence on appeal, but that r 36.57(1) of the Federal Court Rules 2011 (Cth) (Rules) requires that a party apply for the Court to receive such further evidence by filing an affidavit at least 21 days before the hearing of the appeal, setting out the facts on which the application relies; the grounds of appeal to which the application relates; the evidence that the applicant wants the Court to receive; and why the evidence was not adduced in the court below.

24    The Minister notes that the affidavit of Mr Sinnarajah was filed only nine days before the hearing of the appeal and two days before the Minister’s submissions fell due. The Minister notes that on 19 March 2019, unsealed copies of the two documents referred to in that affidavit were provided to the Minister’s solicitor.

25    With respect to the exercise of the Court’s power to receive new evidence on appeal, the Minister refers to Alliance Craton Explorer Pty Ltd v Quasar Resources Pty Ltd [2013] FCAFC 29; 296 ALR 465 (Alliance) per North, Cowdroy and Katzmann JJ at [42]. I will set out that paragraph in full:

The evidence is certainly not fresh. There is no apparent reason why, if it were relevant, it was not tendered below. Still, the Court has the power to receive the evidence. The power, conferred by s 27 of the Federal Court of Australia Act 1976 (Cth) (“FCA Act”), is not confined to fresh evidence. The discretion is a wide one, constrained only by the subject matter, scope and purpose of the legislation, and there are no invariable rules: Cf. CDJ v VAJ (1998) 197 CLR 172 at [116] (McHugh, Gummow and Callinan JJ), which concerned the operation of s 93A(2) of the Family Law Act 1975 (Cth), which is in similar terms. Yet, as the Court emphasised in Sobey v Nicol (2007) 245 ALR 389, where the relevant principles are discussed at [68]-[72], the discretion is to be exercised in the context of an appeal by way of rehearing. A rehearing is not a hearing de novo. Its purpose is to correct error. The rules of court lay down a procedure for making an application for the Court to receive further evidence on an appeal (Federal Court Rules 2011 (Cth) (“the Rules”), r 36.57), with which Alliance did not comply. Applications must be filed at least 21 days before the hearing of the appeal and be accompanied by an affidavit stating not only the evidence the applicant wishes the Court to receive but also the facts on which the application relies, the grounds of appeal to which it relates, and the reason why the evidence was not adduced in the court below. The Court has power to abridge the time (r 1.39), indeed to dispense altogether with compliance with the Rules (r 1.34). But no application was made for the Court to exercise either of these powers (at least not formally) and in the present circumstances we see no good reason to do so.

26    As the Minister submits, in Alliance their Honours had regard to the absence of any explanation for the late tender of the evidence; the “doubtful merit” of the evidence in question; the fact that leave would not further the overarching purpose of the civil practice and procedure provisions as set out in s 37M of the FCA Act; and that, in the interests of justice, leave should not be granted (at [43]-[44]).

27    The Minister submits that the merits of the evidence has “assumed pre-eminence in subsequent decisions and particularly in relation to appeals concerning migration decisions” (citing Sami v Minister for Immigration and Citizenship [2013] FCAFC 128; 139 ALD 1 (Sami) at [7] and MZZUQ v Minister for Immigration and Border Protection [2015] FCA 157 at [24]).

28    With respect to the current matter, the Minister submits as follows:

11.     In spite of this, and irrespective of any potential significance of the evidence to the Fresh Grounds, the first respondent submits that the Court ought not exercise its discretion to allow the appellant to tender further evidence. The Affidavit makes no realistic attempt to comply with the requirements of r 36.57. For the Court to accede to this application would be tantamount to impermissibly shifting the arena of dispute from a primary judge to an appellate court: see, e.g. Mohammed v Minister for Immigration and Border Protection [2018] FCA 2085 and Kassem v Minister for Home Affairs [2019] FCA 244, the latter citing AXL16 v Minister for Immigration and Border Protection [2018] FCA 208 and BVG17 v BVH17 [2019] FCAFC 17.

12.     In any event the first respondent submits that the proposed grounds that the further evidence apparently supports are not of sufficient merit to warrant the grant of leave. For the reasons outlined below, this is not a case where the further evidence was likely to have led to a different result had it been available at the hearing before the primary judge: c.f. DHS17 v Assistant Minister for Immigration and Protection [2018] FCAFC 209 at [33]-[34].

Consideration

29    In considering whether or not the Court ought to exercise its power to receive new evidence on appeal pursuant to s 27 of the FCA Act, I have had regard to the authority relied upon by the Minister. I note the following statement of the Full Court in Sami at [7]:

The requirements of r 36.57 reflect the principles which apply to questions of fresh evidence on appeals. Generally, if the evidence could have been adduced below by the exercise of reasonable diligence it will not be admitted on appeal (see, for example, Moore v Minister for Immigration and Citizenship (2007) 161 FCR 236; [2007] FCAFC 134 at [4] [7]). Further, unless the evidence is of such relevance and weight that its admission would be likely to lead to a different result it also will not usually be admitted on an appeal. In the present case, the potential relevance and weight of the proposed fresh evidence must be assessed having regard to the limits on the Court’s jurisdiction to review the decision of the AAT – that is, for jurisdictional error only, no review of the merits of the AAT’s decision being permissible by this Court either at first instance or on appeal.

30    Sami was recently applied by Collier J in Kassem v Minister for Home Affairs [2019] FCA 244, where her Honour refused leave to adduce fresh evidence on appeal from a decision of the FCCA. Her Honour acknowledged that the proposed evidence related directly to the jurisdictional error alleged to have been made, rather than relating to the merits of the Tribunal’s decision, and noted the submission advanced by the appellants that the proposed evidence had sufficient relevance and weight that its admission was likely to lead to a different outcome than that reached by the primary judge. At [20], her Honour said:

However – the fact remains that this is the hearing of an appeal from a primary decision of the Federal Circuit Court. Recently in BVG17 v BVH17 [2019] FCAFC 17 at [56] the Full Court reiterated that there is extensive case law rejecting any obligation on the part of an appellate court to determine matters which should have been considered and determined by the Court at first instance. I also note, and adopt, the observation of Perram J in AXL16 v Minister for Immigration and Border Protection [2018] FCA 208 at [26] that the Federal Court of Australia Act 1976 (Cth) confers appellate, not original, jurisdiction on the Court in cases such as the present and that the exercise of appellate jurisdiction is concerned with the correction of error. While the decision of the Authority concerning the migration agent post-dated the decision of his Honour, it is also the case that the appellants could have sought to rely on the evidence in their affidavits in the Federal Circuit Court proceedings in this case. It is unclear why they did not – although again I note that they were not legally represented in those proceedings.

31    Crucially, her Honour found that the evidence sought to be relied upon was relevant to allegations of fraud and required examination and testing, which was properly to be done by a trial court, not an appellate court. Her Honour thus refused the application.

32    In the present matter, I was mindful that the Appellant had not complied with all of the procedural requirements of r 36.57(1) of the Rules. However, the Court may dispense with compliance with the Rules and the relevance and weight of the proposed evidence is the determinative factor in deciding whether leave ought to be granted: see Alliance and Sami. In order to better assess the weight and relevance, I therefore reserved consideration of whether or not to allow the Appellant to adduce new evidence until I had considered whether or not to grant leave to amend the grounds of appeal.

33    I thus granted leave for the two documents sought to be relied upon (being a DFAT report of 24 January 2017 and UNHCR Guidelines of 21 December 2012) to be filed for the limited purpose of determining the Appellant’s application for leave to rely on grounds not advanced before the primary judge.

Leave to amend grounds of appeal

Appellant’s submissions

34    In support of the application for leave to rely on new grounds, the Appellant cited and relied upon the reasoning of Bromwich J in Han v Minister for Home Affairs [2019] FCA 331 at [8]-[9]:

8    …[I]n many cases it will be entirely appropriate, to decide the question of whether to grant leave to advance an entirely new proposed ground of review in the form of a ground of appeal by giving dominant, but not exclusive, weight to the merit of the proposed ground. Merit is necessary, but not of itself ordinarily sufficient. Other features will generally need to be absent or present. Possible further considerations for the granting of leave in addition to merit include such things as an acceptable explanation for the ground not being run below, the nature and extent of any injustice (beyond a merely adverse result) that may result if the issue raised is not addressed, and the lack of prejudice to the opposing party. The decision to grant or refuse leave is then made by weighing the competing considerations, which are sometimes finely balanced.

9    The approach of relying predominantly on merit as the basis for leave becomes more problematic when there is no adequate explanation for the ground not having been advanced at the trial in the court below and other circumstances also tell against leave being granted. Care needs to be taken to ensure that a focus on merit does not have the troubling practical effect that a new ground sought to be raised is effectively heard and determined by this Court in the exercise of its appellate jurisdiction as though leave was not required. …

35    The Appellant submitted as follows (at 7):

In this case it is submitted leave ought be granted upon the showing of merit. It is submitted both aspects have sufficient merit. While the 2 aspects of the new ground do require additional evidence (being the UNHCR 21 12 2012 & DFAT 24 January 2017) for which leave is also being sought, their consideration will not add any significant time to the hearing. It is accordingly expedient to do so (see Vaux v Minister for Immigration & Multicultural & Affairs 238 FCR 588 at [46] - [48]).

36    In oral submissions, Mr Foster (appearing on behalf of CSF17) confirmed that the Appellant was not legally represented before the primary judge.

Minister’s submissions

37    With respect to the grant of leave to rely on the proposed amended grounds of appeal, the Minister submits that leave should only be granted if it is expedient in the interests of justice to do so, relying on Murad v Assistant Minister for Immigration and Border Protection [2017] FCAFC 73; 250 FCR 510 (Murad) per Griffiths and Perry JJ at [19], citing VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 (VUAX) per Kiefel, Weinberg and Stone JJ at [46]-[48]. The Minister notes that in VUAX it was held at [49] that where “there is no explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused”.

38    The Minister submitted that no explanation had been advanced by the Appellant for his failure to raise the issues now sought to be agitated on appeal.

Consideration

39    In Murad, Griffiths and Perry JJ held at [19]-[20]:

19    The general principles guiding the decision whether or not to permit a ground to be raised on appeal which was not run below are well settled. They are reflected in the following observations of the Full Court in VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 at [46]-[48] (and which were recently reaffirmed in substance by Flick and Rangiah JJ in Sun v Minister for Immigration and Border Protection [2016] FCAFC 52; 243 FCR 220 at [89]-[90]):

46    In our view, the application for leave to rely upon the sole ground of appeal now raised should be refused. Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so: O’Brien v Komesaroff (1982) 150 CLR 310; H v Minister for Immigration & Multicultural Affairs; and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [20]-[24] and [38].

47    In Coulton v Holcombe (1986) 162 CLR 1, Gibbs CJ, Wilson, Brennan and Dawson JJ observed, in their joint judgment, at 7:

“It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.”

48    The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. In our view, the proposed ground of appeal has no merit. There is no justification, therefore, for permitting it to be raised for the first time before this Court.

20    In Summers v Repatriation Commission [2015] FCAFC 36; 230 FCR 179, in discussing the relevant principles, the Full Court stated at [94] that, generally speaking, leave is more likely to be granted to permit a fresh issue to be raised on appeal where the new point turns only upon a question of construction or upon a point of law, or where the facts are not in controversy. A Full Court constituted by five Justices approved that passage in Haritos v Commissioner of Taxation [2015] FCAFC 92; 233 FCR 315 at [79].

40    However, given that the Appellant was unrepresented before the primary judge, and that the Minister does not submit he will suffer prejudice if leave to rely on new grounds is granted, I would not understand that decision to bar the Court from considering the merits of the proposed amended grounds of appeal in order to determine whether leave should be granted.

Proposed new grounds of appeal

Proposed Ground A

41    Proposed Ground A takes issues with the IAA’s treatment of a DFAT Country Report dated 24 January 2017, alleging that the IAA misstated that report.

The Appellant’s submissions

42    The Appellant submits that the IAA’s reasoning at [19] misstates the 24 January 2017 DFAT report. The relevant part of that paragraph of the IAA’s reasons is as follows:

… DFAT’s most recent report assesses that individuals now at risk, should they come to the attention of the authorities, are any members of the LTTE’s leadership who have not been apprehended; former members who committed terrorist or serious criminal acts during the conflict or who provided weapons or explosives to the LTTE; former combatants and LTTE members employed in administrative or other roles; those who provided a high level of non-military support to the LTTE during the conflict; and people suspected of seeking to revive the LTTE or undermine the unified Sri Lankan state, including in some cases through activities undertaken outside Sri Lanka. …

43    The Appellant submits that that DFAT report identifies persons who are of various levels of interest to the Sri Lankan authorities, including those who are at high risk, in a non-exhaustive manner. That is clear from the report’s use of the word “including” before listing the categories of persons. The Appellant submits that the IAA has referred only to the classes of persons identified as being at “highest risk” in the 24 January 2017 DFAT report, and frames that list as if it is comprehensive. The IAA does not refer at all to the classes of persons identified in the DFAT report as being “low-risk” (which includes former combatants) at all.

44    Mr Foster made oral submissions that the Appellant had been forced to undertake training but had not actually fought, so would not fall within the categories if understood as limited only to those set out at [19] of the Second IAA Decision, but a proper reading of the relevant parts of the 24 January 2017 DFAT report (particularly cl 3.38) establishes that there is “no such limitation whatsoever”.

45    Mr Foster submitted that whether the Appellant had trained with the LTTE or the TELO (the Tamil Eelam Liberation Organisation, another Tamil militant organisation) was not determinative of whether or not he would face harm from the Sri Lankan authorities, despite the 24 January 2017 DFAT report specifically identifying those who had had LTTE involvement. Mr Foster submitted that the IAA did not properly engage with a person in the Appellant’s situation, and whether or not he could be expected to face harm on the basis of the content of the 24 January 2017 DFAT report.

46    In the course of his submissions, I raised with Mr Foster whether the force of his submission might be undermined by the fact that, at [16] of its reasons, the IAA noted that “[t]he applicant does not claim that the Sri Lankan authorities were aware that he had done this training, or that it was ever specifically mentioned in subsequent dealings with the authorities …”. In response, Mr Foster took me to various other paragraphs of the IAA’s decision where the IAA explicitly accepted that the Appellant had been accused of LTTE involvement and had been detained on suspicion of LTTE involvement (at [16] and [17] of the Second IAA Decision). Mr Foster submitted that these findings show that, notwithstanding the Appellant not having claimed that the authorities were aware of his militant training, the IAA had clearly accepted that he was viewed as “being LTTE”.

The Minister’s submissions

47    With respect to proposed ground A, the Minister’s initial written were as follows:

16.    By proposed ground A, the appellant asserts that the Immigration Assessment Authority (Authority) erred by “misstating” the DFAT Report at [19] of its decision: see Appeal Book (AB) at p 291. The error is said to arise by the Authority noting at [19] the risk profile attributed by the DFAT Report to:

…any members of the LTTE’s leadership who have not been apprehended; former members who committed serious criminal acts during the conflict or who provided weapons or explosives to the LTTE; former combatants and the LTTE members employed in administrative or other roles; those who provided a high level of non-military support to the LTTE during the conflict; and people suspected of seeking to revive the LTTE or undermine the unified Sri Lankan state, including in some cases through activities undertaken outside Sri Lanka…

but failing to consider the risk profile that the DFAT Report attributes to “hardcore former members (3.40), low-profile LTTE members (3.42), and high profile leaders of pro-Tamil diaspora groups. (3.45)”. There appears to be an implicit assertion in this ground that the applicant falls into one or all of these categories whose risk profile the IAA is said to have unreasonably failed to consider.

17.    The applicant has never made a claim to be a high profile member of a pro-Tamil diaspora group. The DFAT Report acknowledges that “hardcore former members” and “low profile former members” of the LTTE may be detained in rehabilitation centres: see [3.40], [3.42]. That risk is only applicable to “hardcore former members” and “low profile former members” who came to the attention of Sri Lankan authorities.

18.    Accordingly, the short answer to this proposed ground lies in the Authority’s findings at [16] and [20] (AB at 290-291):

[16]    … I accept that the applicant was forced to do training with a Tamil militant organisation… prior to 1991. The applicant does not claim that the Sri Lankan authorities were aware that he had done this training, or that it was ever specifically mentioned in subsequent dealings with the authorities and in my view it is doubtful that it would now be known.

[20]    He does not claim to have been investigated in relation to LTTE connections, or to have been directly accused of LTTE involvement since the end of the war.

19.    Given the Authority’s finding that Sri Lankan authorities were not aware of the appellant’s peripheral involvement in the LTTE, the DFAT Report risk profiles that [the] appellant says the Authority unreasonably failed to consider could not be applicable to him. In these circumstances, the first respondent submits that proposed ground A is not of sufficient merit to warrant the grant of leave.

(Minister’s emphasis.)

48    By his supplementary written submissions, the Minister notes that the Appellant did not identify any passage of the DFAT Report that suggests a person of the Appellant’s profile would face harm. Further, the IAA had noted at [19] that, on the basis of a UNHCR Report, a person of the Appellant’s profile was not a person requiring protection. Consequently, the Minister submits, even if the IAA had misstated the information in the DFAT report as alleged by the Appellant, such a misstatement was not material as it could not have realistically resulted in a different decision (citing Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 93 ALJR 252 (SZMTA) at [45]). That was because there had been nothing in the country information or other material that had been before the IAA to suggest that the Appellant specifically, or a person with the Appellant’s profile, is at risk of serious harm.

49    In oral submissions, Mr Lambe on behalf of the Minister submitted that the Appellant had not identified which part of the 24 January 2017 DFAT report that would support his claim that a person with the profile of the Appellant would face harm. Mr Lambe observed that the Appellant had not claimed, and nor had the IAA found, that the Sri Lankan authorities knew or suspected that the Appellant had had any connection with Tamil militant organisations. He submitted that the IAA had made explicit findings at [16] and [17] that the Appellant had no “specific information … about his activities” and “was of no adverse interest to the authorities at that time”.

Consideration

50    Having considered the submissions advanced on behalf of the Appellant and the Minister, I am unpersuaded that Proposed Ground A has sufficient merits to justify this Court granting leave to raise it on appeal.

51    I am unsatisfied that any misstatement of the 24 January 2017 DFAT report was material to the IAA’s decision. In coming to that conclusion, I have had regard to the reasoning of the plurality in SZMTA (Bell, Gageler and Keane JJ):

45    Materiality, whether of a breach of procedural fairness in the case of an undisclosed notification or of a breach of an inviolable limitation governing the conduct of the review in the case of an incorrect and invalid notification, is thus in each case essential to the existence of jurisdictional error. A breach is material to a decision only if compliance could realistically have resulted in a different decision.

46    Where materiality is in issue in an application for judicial review, and except in a case where the decision made was the only decision legally available to be made, the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof. Like any ordinary question of fact, it is to be determined by inferences drawn from evidence adduced on the application.

52    Whether or not the IAA faithfully described the full import of the cited paragraphs of the 24 January 2017 DFAT report, the Appellant has not established that that report, properly construed, would have led to a finding that a person with the Appellant’s profile, if returned to Sri Lanka, would face harm beyond that which the IAA accepted was neither of the character nor significance as would engage the provisions of the Migration Act. In that regard, I note the explicit findings made by the IAA that the Appellant had no notable profile and that the authorities had no adverse interest in him (at [16] and [17] respectively). I note that the IAA found, at [18], that the Appellant’s accepted account of the traumatic events when he had narrowly escaped being shot “occurred in the context of wartime security operations which targeted Tamils generally as suspected LTTE supporters”. The IAA made findings that the Appellant had advanced no claims of similar mistreatment since the war ended in 2009. Those were all factual findings, open to it on the materials, that the IAA was entitled to make.

53    The Appellant should not be granted leave to rely on Proposed Ground A.

Proposed Ground B

54    Proposed Ground B takes issue with the IAA’s treatment of a UNHCR report dated 21 December 2012.

The Appellant’s submissions

55    The Appellant submits that the IAA summarised aspects of the UNHCR Guidelines, but did not refer to other parts which specifically mention categories of persons who may require refugee protection. The IAA’s consideration of the UNCHR Guidelines is as follows:

19.    UNHCR’s 2012 Guidelines for assessing the eligibility of Sri Lankans for asylum state note [sic] that given the degree of control exercised by the LTTE over the Northern and Eastern Provinces during the conflict, everyone living there necessarily had contact with the LTTE and its civilian administration. UNHCR assessed in 2012 that there was no longer a presumption of a requirement for protection simply for reason of being of Tamil ethnicity and a prior resident of areas of the country previously under the control of the LTTE, although some Tamils remained at risk of harm because of particular past connections with the LTTE. There is no more recent evidence before me to suggest that there are risks for a wider range of people than those identified by the UNHCR in 2012 as potentially requiring protection; indeed, the weight of recent country information indicates that due to the easing of the security situation and the election of a new government in 2015, the risk of harm faced by the Tamil population – depending on individual circumstances – has decreased. …

56    The Appellant submits that it is clear from the UNHCR Guidelines that, despite the statement regarding the need for protection purely on the basis of Tamil ethnicity and having lived in an LTTE-controlled area, there are categories of persons who remain at risk such that they may well require international refugee protection. The Appellant refers to the categorisation of persons who are at risk of harm on the basis of suspected links with the LTTE at 27 of the UNHCR Guidelines:

…[P]revious (real or perceived) links that go beyond prior residency within an area controlled by the LTTE continue to expose individuals to treatment which may give rise to a need for international refugee protection, depending on the specifics of the individual case. The nature of these more elaborate links to the LTTE can vary, but may include people with the following profiles:

1)    Persons who held senior positions with considerable authority in the LTTE civilian administration, when the LTTE was in control of large parts of what are now the northern and eastern provinces of Sri Lanka;

2)    Former LTTE combatants or “cadres”;

3)    Former LTTE combatants or “cadres” who, due to injury or other reason, were employed by the LTTE in functions within the administration, intelligence, “computer branch” or media (newspaper and radio);

4)    Former LTTE supporters who may never have undergone military training, but were involved in sheltering or transporting LTTE personnel, or the supply and transport of goods for the LTTE;

5)    LTTE fundraising and propaganda activists and those with, or perceived as having had, links to the Sri Lankan diaspora that provided funding and other support to the LTTE;

6)    Persons with family links or who are dependent on or otherwise closely related to persons with the above profiles.

57    The Appellant refers to the fact that the IAA had accepted the Appellant’s claim to have trained with the LTTE to be plausible (at [16]), and that the IAA had accepted that the Appellant had been accused of being with the LTTE (at [16]); that he had been detained by the Sri Lankan army in 1990 on suspicion of LTTE involvement (at [17]); and that the Appellant’s account of his wartime experiences was plausible and credible (at [18]).

58    I interpolate that Mr Foster drew the Court’s attention to the fact that, although the IAA accepted that the Appellant had trained with the LTTE at [16], his claim was actually to have been forced to train with the TELO, another Tamil militant organisation, not the LTTE. However the Minister took no point that that distinction was of substance.

59    The Appellant submits that the IAA did not refer to the relevant section of the UNHCR Guidelines (as set out above), which would have “raised the issue of whether, because of his wartime experience, he may require … international refugee protection”. The Appellant submits that, given that the IAA accepted that the Appellant had been forced to train with the TELO, he fits within category 2 of the list contained in the UNHCR Report (as set out above), being “cadres”.

The Minister’s submissions

60    With respect to Proposed Ground B, the Minister submits as follows:

20.    By ground B, the appellant asserts that the IAA either made [an] illogical decision or failed to consider a mandatory relevant consideration by not considering an aspect of the UNHCR Guidelines, being a passage apparently at p 27 stating that “former LTTE combatants or cadres” may need international refugee protection, “depending on the specifics of the individual case”.

21.    There are two major problems with this proposed ground. Firstly, it is at best arguable that the appellant falls into the category of “former LTTE combatants or cadres”. The IAA found that the appellant’s involvement with the LTTE was limited to a brief period of compulsory training: see, e.g. [20]. The applicant never claimed to have had involvement with the LTTE as a combatant or cadre.

22.    Secondly, and most significantly, it is the first respondent’s submission that the Authority simply preferred the DFAT report to the UNHCR Guidelines insofar as the DFAT Report outlined the risk of harm faced by certain Tamil groups in Sri Lanka. At [19], the IAA observed (after referring to the UNHCR guidelines):

There is no more recent evidence before me to suggest that there are risks for a wider range of people than those identified by the UNHCR in 2012 as potentially requiring protection; indeed, the weight of recent country information indicates that due to the easing of the security situation and the election of a new government in 2015, the risk of harm faced by the Tamil population - depending on individual circumstances - has decreased. DFAT’s most recent report assesses…

23.    The Authority’s ensuing reasons at [19] and [20] reflect its implicit rejection of the UNHCR guidelines where they are inconsistent with the DFAT Report. It is well settled that the use of country information is a matter for the IAA: see, e.g. NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]. It was open for the IAA to prefer one item of country information to another. Any further attempt to agitate that issue amounts to impermissible merits review. For this reason, proposed ground B is not of sufficient merit to warrant the grant of leave.

61    Given that such a point had not been foreshadowed, I granted leave to the Minister to file supplementary submissions, including as to the meaning of “cadres” for the purposes of Proposed Ground B. The Minister submits as follows:

20    the UNHCR Guidelines use the word “cadre” either as synonymous with combatant or as denoting some level of active involvement in the organisation. So much can be inferred from p 6 of the report, which refers to the need to carefully consider (when assessing protection obligations) “certain former members of the LTTE, in particular former combatants [emphasis added]”. There is no separate reference to former cadres.

62    The Minister submits that the Appellant’s limited involvement with the TELO does not place him in the category of an LTTE combatant or “cadre”, and that the Appellant had no profile as such, having never come to the attention of the Sri Lankan authorities in connection with his involvement with the TELO.

Consideration

63    I am unsatisfied, on the reasonably impressionistic level at which I am to consider the merits of proposed grounds of appeal, that Proposed Ground B has sufficient prospects of success to warrant leave being granted.

64    The relevant passage of the IAA’s reasoning is as follows:

19    UNHCR’s 2012 Guidelines for assessing the eligibility of Sri Lankans for asylum state note [sic] that given the degree of control exercised by the LTTE over the Northern and Eastern Provinces during the conflict, everyone living there necessarily had contact with the LTTE and its civilian administration. UNHCR assessed in 2012 that there was no longer a presumption of a requirement for protection simply for reason of being of Tamil ethnicity and a prior resident of areas of the country previously under the control of the LTTE, although some Tamils remained at risk of harm because of particular past connections with the LTTE. There is no more recent evidence before me to suggest that there are risks for a wider range of people than those identified by the UNHCR in 2012 as potentially requiring protection; indeed, the weight of recent country information indicates that due to the easing of the security situation and the election of a new government in 2015, the risk of harm faced by the Tamil population – depending on individual circumstances – has decreased. …

(Emphasis added.)

65    I accept that the IAA did not explicitly recite the list of people having profiles that would “expose individuals to treatment which may give rise to a need for international refugee protection” as set out at 27 of the UNHCR Guidelines. However, I take the words “people … identified by the UNHCR in 2012 as potentially requiring protection” at [19] of the IAA’s decision as a reference to that list of categories of persons at 27 of the UNHCR Guidelines, especially given that, in the preceding sentence, the IAA acknowledged that “some Tamils remained at risk of harm because of particular past connections with the LTTE”. In my view, the fact that the IAA did not explicitly include or summarise that list does not give rise to an inference that it did not actively engage with that information as it might affect the potential risk a person in the Appellant’s position would face. I am reinforced in that conclusion given that the IAA then went on to set out the classes of persons identified by the more recent 24 January 2017 DFAT report as at risk.

66    I accept the general submissions advanced by the Minister that the use to which country information is put is a matter for the IAA on the basis of NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]. However, I do not accept that that principle would shield a decision from being set aside if the IAA had relied upon a material misstatement or misunderstanding of country information. In the present case, I do not consider the IAA to have materially misstated or misunderstood the UNHCR Guidelines.

67    I accept the Minister’s submission that the Court should not accept that the Appellant falls within the category of “former LTTE combatant or cadre”. The Appellant never claimed to have fought on behalf of the LTTE (or any other militant organisation), only to have been forced to undertake a period of training.

68    It is untenable for the Appellant to argue that the IAA’s decision should be set aside on the basis that the IAA failed to consider that aspect of the UNHCR Guidelines, when the specific aspect of the Guidelines sought to be relied upon do not apply to the Appellant.

69    I would not grant the Appellant leave to advance Proposed Ground B.

70    Even had I concluded otherwise, I reject that the error would give rise to jurisdictional error. The Appellant does not take issue with the IAA’s finding at [16] that it is doubtful that the Sri Lankan authorities would be aware of his having participated in such training. It is for the IAA, not the Court, to make findings of fact. If the Sri Lankan authorities had no reason to know that CSF17 ever participated in such training, the materiality of the error asserted is difficult to discern.

71    Having found that Proposed Ground A and Proposed Ground B lack sufficient merits to warrant the grant of leave to advance new grounds on appeal, there is no utility in granting leave to adduce fresh evidence. I therefore refuse that application.

72    I now turn to consideration of the remaining ground of appeal.

Original ground of appeal

73    By his initial notice of appeal, the Appellant advanced the following ground:

The Federal Circuit court failed to find, in respect of the IAA’s reasoning that the IAA declined its jurisdiction to me on the basis of grounds including the main grounds stated in my Federal Circuit Court Application filed at the Federal Circuit Court on 15 March 2018. Further Grounds with particulars of the grounds will be filed and served in my Amended Notice of Appeal when [the] Court orders it.

74    Before the primary judge, the Appellant had relied upon a single ground of review that took issue with the IAA’s reasons for having rejected new information submitted by the Appellant by his 18 September 2017 submissions. That ground is set out unaltered at [24] of the primary judge’s reasons as follows:

1.     The IAA adopted an unduly narrow construction of s473DD by confining its determination of the new information to whether or not the applicant provided an explanation in accordance with the Practice Direction 1. At [6] - [8] the IAA reasoned that s failure to provide an explanation was determinative of the matters set out in s473DD. In doing so, it constructively failed to exercise its jurisdiction under s473DD.

2.     Particulars

a.     On 11 January 2017 the delegate refused the applicant’s protection visa application;

  b.     On 29 May 2017 the first IAA affirmed the delegate’s decision;

c.     The applicant sought judicial review of the IAA decision and on 24 August 2017, by consent, the Court quashed the decision of the first IAA and remitted the matter for redetermination according to law;

d.     The applicant provided a submission dated 18 January 2017 to the second IAA;

  e.     The 18 January 2017 submissions contained new information that:

i.     On 25 December 2016 the applicant’s nephew’s motorbike was broken and he was beaten by the CID;

ii.     During the attack the applicant's nephew was told that member of “their family” should not be doing business;

   iii.     The CID also asked the applicant’s whereabouts;

iv.     The CID had also approached the applicant’s wife and demanded that she pay them money. She did not do so and the applicant believes that was why his nephew was attacked;

v.     A Tamil man who was returned to Si Lankan from Australia was goaled for 5 days and the CID has demanded 10 Lakhs for his release;

vi.     No explanation why the applicant could not have provided to the delegate before the decision;

f.     There were only 18 days (over the Christmas/New Year break) between the nephew being attacked on 25 December 2016 and the delegate making the decision on 11 January 2017. The submission dated 18 January 2017 reveals the applicant’s intention to give the new information to the delegate but the delegate made the decision first. This reasoning by the IAA is also legally unreasonable.

The Appellant’s submissions

75    The Appellant refers to the IAA’s treatment of the information in question at [6]-[7]:

6.    The applicant provided a submission dated 18 January 2017 to the IAA. The submission contains new information which was not given to the delegate, which was that on 25 December 2016 the applicant’s nephew’s motorbike was broken and he was beaten by the Criminal Investigations Department (CID) in Sri Lanka. During the attack he was told that members of “their family” should not be doing business. The CID also asked [about] the applicant’s whereabouts. Before this the CID had approached the applicant’s wife and demanded that she pay them money. She did not do so and the applicant believes this was why his nephew was attacked.

7.    The alleged attack on the applicant’s nephew and the threat to the applicant’s wife occurred before the delegate’s decision was made on 11 January 2017. Even though the attack on the nephew, at least, occurred not long before the finalisation of the decision, the applicant has not provided any reason why the information could not have been provided to the delegate before the decision was made, and he has not satisfied me that this is the case. The applicant has also not satisfied me that the information is credible personal information that may have affected consideration of his claims. The information provided in the submission is quite vague and lacking in detail or context; the relevance to the applicant’s circumstances of the comment that the family should not be doing business is not apparent, given that he is, in fact, no longer doing business in Sri Lanka. It is not apparent why the applicant believes the attack on his nephew was connected with the threat to his wife. Nor does it seem particularly credible that this apparently new demand and threat would occur so long after the applicant’s departure, given the evidence of little subsequent interest in him or his family, apart from the incidents he told the delegate about which occurred in late 2012 and possibly around early 2016, which did not involve the CID. Overall, and given the limited probative value of the new information, I am also not satisfied that there are exceptional circumstances.

8.    The applicant also provided new information that his relatives had recently told him that a Tamil man who was returned to Sri Lanka from Australia was gaoled for five days and the CID had demanded ten lakhs for his release. The applicant’s family had not told him anything more about the fate of this man. It is not clear when this incident occurred and the applicant has not satisfied me that the information could not have been given to the delegate before the decision was made. Nor has he satisfied me that it is credible personal information which may have affected consideration of his claims, as there is nothing to suggest that the circumstances of this man – apart from the fact that he was a Tamil man returned from Australia – are similar to those of the applicant. Given that the information is of limited relevance or assistance in assessing the applicant’s claims, and given that the delegate considered other information about the treatment of Tamils returning to Sri Lanka from other countries including Australia, I am also not satisfied that there are exceptional circumstances to justify considering it.

76    The Appellant submits that there were only 16 days during which the information could have been provided to the Delegate prior to the making of the decision. The Appellant further submits:

… As the new information indicates that his wife ‘has not paid the money’, which describes a period of time post-demand, it is possible the time frame is less than 16 days.

Noting that the information needed to have come from Sri Lanka over the Australian Christmas break, and included research materials, it is conceivable that it was not possible that the new information could not have been capable of being provided to the delegate before the 11th January, and the IAA ought to have been so satisfied.

77    In oral argument, Mr Foster submitted that, given the timeframe, the IAA should have accepted that that information could not realistically have been provided to the Minister, and thus that the information satisfied s 473DD(b)(i). Nevertheless, Mr Foster accepted that the Appellant had advanced no explanation for the delay to the IAA.

78    Mr Foster acknowledged that the IAA had made explicit findings that it was not satisfied that the information was credible (at [7] of its reasons). No ground is advanced with respect to those findings.

79    Although not articulated with reference to the primary judge’s reasons, I therefore take the Appellant to submit that her Honour erred by concluding (at [30]-[36]) that the IAA had not fallen into jurisdictional error in finding that s 473DD(b)(i) was not satisfied.

The Minister’s submissions

80    With respect to s 473DD of the Migration Act, the Minister submits:

24    The primary judge’s conclusion that the IAA did not make a jurisdictional error in applying s 473DD to the New Statement is based on her Honour’s conclusion at [35] that the IAA did not adopt an unduly narrow construction of “exceptional circumstances”, as that phrase appears in s 473DD(a). If the IAA properly makes a negative finding in relation to one limb of s 473DD, that is sufficient to preclude the s 473DD assessment from being affected by jurisdictional error. This is because, as the primary judge rightly noted, the two limbs of s 473DD are cumulative, non-satisfaction of one being sufficient to require the IAA to not consider the relevant piece of new information: BRA16 v Minister for Immigration and Border Protection [2018] FCA 127.

25    It is well settled that the matters in s 473DD(b) can inform the IAA’s conclusion in respect of s 473DD(a): see, e.g. BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958 at [9]; Minister for Immigration and Border Protection v BBSI6 [2017] FCAFC 176 (BBSI6) at [102]; AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111 at [14].

26    In finding that the IAA had correctly applied the “exceptional circumstances” limb of s 473DD, the primary judge found that the IAA had demonstrated an engagement with the substance of paragraph (b) of s 473DD. The IAA’s findings that the New Statement did not seem “particularly credible”, was (in part) of no apparent relevance to the appellant’s claims and was “quite vague and lacking in detail or context”, as observed by the Court, speak to the IAA’s engagement with, in particular, s 473DD(b)(ii).

27    An additional finding by the IAA in respect of the New Statement noted by the Court at [32] was simply that it was of “limited probative value”. The probative value of information speaks directly to the second element of s 473DD(b)(ii), that being a requirement that the new information “may have affected the consideration of the referred applicant’s claims”. A negative finding in relation to probative value is properly taken into account in the IAA’s assessment of “exceptional circumstances” and the Court was correct to so find at [33].

28    Her Honour also correctly noted that the appellant had not identified any circumstance(s) that he said constituted “exceptional circumstances”, which the IAA had not taken into account: for a similar case, see AQUJ 7 v Minister for Immigration and Border Protection [2018] FCAFC 111 at [l7].

29    It bears noting that the factors observed by the Court as going to the IAA’s finding on “exceptional circumstances” were not the only factors considered by the IAA. At [7], in relation the New CID Information, the IAA said “Overall... I am also not satisfied that there are exceptional circumstances to justify considering [the New CID Information].” The IAA’s use of the term “overall” incorporates its findings in the preceding sentences of paragraph [7]. Those findings included a finding in relation to s 473DD(b)(i). The IAA made a similarly broad “exceptional circumstances” finding (albeit without the use of the term “overall”) at [8] in relation to the New Jail Information.

30    The first respondent’s submission is that the IAA considered, as it was required to do, “all the relevant circumstances” when it made its s 473DD(a) findings in relation to the New Statement: see BBS16 at [104]. Accordingly, her Honour was correct to dismiss this aspect of the appellant’s judicial review application.

81    With respect to legal unreasonableness, the Minister notes that the contention advanced before the primary judge was unparticularised. The Minister submits:

32    Her Honour postulated that the contention could be that the IAA ought to have taken into account the short period of time between the attack on the appellant’s nephew and the date of the delegate's decision in making its findings under s 473DD. As was noted by the Court at [35], that fact was taken into account by the IAA at [7] of its reasons: CB 262.

33    What becomes clear from that passage of the IAA’s reasons is that the IAA considered the short period of time but had no material before it to explain why or how that short period meant that the information could not have been provided to the delegate prior to the decision. Nor was it explained how the short period of time might have influenced the IAA’s determination of “exceptional circumstances”. In these circumstances, the first respondent submits that the IAA’s decision is not tainted by legal unreasonableness.

Consideration

82    No error is made out with respect to s 473DD of the Migration Act.

83    The primary judge correctly stated (at [12]) that the test contained in s 473DD is cumulative; both limbs must be satisfied in order for the IAA to be entitled to consider new information. In that regard, I adopt the reasoning of Robertson J in BRA16 v Minister for Immigration and Border Protection [2018] FCA 127 at [26]:

26    Even if the IAA had made an error in respect of its consideration of the matters described in s 473DD(b), any error could not be jurisdictional, as a finding adverse to the appellant was made in respect of s 473DD(a). The chapeau to s 473DD imposes a prohibition on the consideration of new information. That prohibition can only be displaced if the requirements of both ss 473DD(a) and (b) can be satisfied. The word ‘and’ separating subparas (a) and (b) is conjunctive. The position is not that new information given by a referred applicant can be considered if either s 473DD(a) or s 473DD(b) is met. Indeed, as the Minister correctly submits, the Minister's submission is consistent with BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958 at [36] where White J proceeded upon the assumption that the Authority had misconstrued s 473DD(a) (as his Honour later held at [46]-[47]). It is also consistent with the Full Court's observation at [46] in CHF16.

84    Although paras (a) and (b) of s 473DD are cumulative, I proceed on the basis that the matters relevant to s 473DD(b) can inform the IAA’s conclusion in respect of s 473DD(a). In that regard, I note the reasons of the Full Court (Kenny, Tracey and Griffiths JJ) in Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; 257 FCR 111:

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

103    That is not to say, however, that the matters in subparas (b)(i) and (ii) are the only matters to be considered by the IAA in determining whether it is satisfied that there are exceptional circumstances to justify considering any new information.

104    As White J explained, the phrase “exceptional circumstances” is to be given a broad meaning, along the lines of circumstances which are unusual or out of the ordinary. This necessarily requires that consideration be given to all the relevant circumstances in determining whether or there are “exceptional circumstances” (see the authorities cited by his Honour at [39]-[41] of BVZ16).

105    For the reasons given by his Honour, including his references to relevant extrinsic material, we respectfully agree that subparagraphs (b)(i) and (ii) should be understood as referring to different kinds of new information. The former provision requires a factual inquiry as to whether or not the new information could have been presented to the Minister. The latter provision requires an evaluation of the significance of the new information in the context of the referred applicant’s claims more generally.

106    We also respectfully agree with White J’s conclusion and reasons for rejecting the Minister’s claim in support of his notice of contention in BVZ16 that, on the proper construction of s 473DD(b)(ii), the phrase “which was not previously known” should be construed as meaning “not previously known to [the referred applicant]”. The provision applies to new information which is given to the IAA by a referred applicant which, if it had been known by either the Minister or the referred applicant, may have affected the consideration of the referred applicant’s claims for protection. …

85    I refer also to the reasons of McKerracher, Murphy and Davies JJ in AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111:

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

86    I am satisfied that the primary judge was not in error when her Honour concluded (at [31]) that the IAA’s reasons demonstrate that it had engaged with the substance of s 473DD(b). Specifically, I am unpersuaded that any error is made out with respect to the IAA’s finding at [7] that, despite the alleged attack only having occurred shortly before the making of the Delegate’s decision, no explanation had been provided to the Delegate as to why the information was not provided prior to the making of the decision. The primary judge considered the then unparticularised claim on the understanding that it took issue with the IAA’s refusal to consider the new information despite the short time frame between the event and the making of the Delegate’s decision at [35]. Her Honour noted that the IAA had expressly considered that at [7] of its reasons, before concluding that the IAA’s assessment of the new information “was orthodox and considered” and that no error was made out.

87    Furthermore, the IAA made explicit findings that the information was not credible, and that, as the new information had limited probative value, there were no exceptional circumstances to justify its consideration (at [7]). Thus, even if the Appellant were able to make out his claim that the IAA’s decision with respect to s 473DD(b)(i) was legally unreasonable, such a finding would have no effect upon the validity of the IAA’s decision made pursuant to s 473DD(a), given that the two limbs of s 473DD (a) and (b) are cumulative, such that both must be satisfied.

88    It must be accepted that an unrepresented applicant, particularly one who may not have effective English language skills, is not to be punished for any deficiencies in those regards. Nonetheless, the system provides guidance to applicants as in the IAA’s Practice Direction for Applicants, Representatives and Authorised Recipients (sent to the Appellant with an instructional document in both English and Tamil entitled “What you need to know about the IAA” on 16 January 2017). That material explains that new information can be considered only if there are exceptional circumstances, and that the review applicant must explain why it could not have been provided to the Department prior to the making of the visa refusal decision, or why it is credible personal information that, if known to the Department, may have affected the visa refusal decision. If the Appellant had a satisfactory explanation for not having put before the Delegate the information he later sought to persuade the IAA to accept as “new information”, he nevertheless failed to advance it. The period available to him can be accepted to have been short but it was not so brief as to have required the IAA to infer that it would not have been possible to do so. It was for him to explain if that had been the case. The IAA cannot be criticised for applying the legislative framework that parliament has established for the disposition of its review task, notwithstanding that it is an attenuated system and expressly stated to be a fast-track system.

89    The original ground of appeal must fail.

Disposition

90    The application for leave to amend the notice of appeal and to raise new grounds not run below must be dismissed. The application for leave to adduce fresh evidence on appeal must be dismissed. The appeal must also be dismissed. I would order that the Appellant pay the Minister’s costs as assessed or agreed.

Associate:

Dated:    29 April 2019