FEDERAL COURT OF AUSTRALIA

ESQ17 v Minister for Immigration and Border Protection [2019] FCA 826

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant is to pay the costs of the first respondent as agreed or assessed.

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

REASONS FOR JUDGMENT

STEWART J:

Introduction

1    This is an appeal from a judgment of the Federal Circuit Court of Australia (FCC) in ESQ17 v Minister for Immigration & Border Protection [2018] FCCA 2589. The case before the FCC was an application for a constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) in respect of a decision of the Immigration Assessment Authority under Part 7AA of the Act. The Authority’s decision was to affirm a decision of a delegate of the Minister not to grant the applicant a Safe Haven Enterprise Visa (SHEV) (the protection visa).

2    Two grounds of appeal are argued before me.

3    First, it is said that the FCC should have found that the Authority fell into jurisdictional error in failing to properly exercise its jurisdiction in respect of information submitted to the Authority. In particular, this raises a question in relation to how the Authority treated information submitted on the appellant’s behalf to it and whether that information constitutes “new information” as referred to in s 473DD of the Act.

4    Secondly, it is said that the FCC should have found that the Authority fell into error by failing to assess the link between the appellant and a relative of the appellant.

Background

5    The appellant, identified by the pseudonym ESQ17, is a citizen of Sri Lanka. He arrived in Australia on or about 14 November 2012, having landed at Christmas Island from a boat that brought him from Sri Lanka via the Cocos Keeling Islands.

Application for protection visa

6    On 29 August 2016, the appellant lodged an application for a protection visa with the Department of Immigration & Border Protection. His application included evidence of the following facts.

7    The appellant is a Tamil and a Hindu. After leaving school he worked on his father’s farm and for his brother’s construction company. In 2008 some people from his village whom he knew from school became interested in the Tamil National Alliance (TNA). The appellant started attending TNA meetings twice a month with them.

8    The president of the TNA branch when he first began to attend in 2008 was his “cousin’s brother”, whom he named as “K” (name redacted).

9    In 2011, the appellant was one of 14 people elected to the TNA council in his district. His role was as council secretary. This involved typical secretarial and organising work.

10    The appellant also attended TNA meetings in other villages within his district whenever possible. As a result of these activities with the TNA, the appellant described his political profile in the district as “significant”.

11    In the lead up to the election in September 2012, the appellant began to receive anonymous threats. In August 2012, a group of three or four armed men went to his home in search of him. He was not there, but the armed men told his parents that he should no longer be involved with the TNA and should stop organising meetings for them. They told the appellant’s father that if the appellant continued to do so his life would be in danger.

12    Later that month, an unknown group of people again went to his home. They carried weapons. They threatened the appellant’s father and mother, asking for him. Once again, the appellant was not there. The group again threatened to shoot the appellant if they saw him.

13    The appellant’s father was upset and frightened and told the appellant not to return home. Because of that, the appellant went to stay with an aunt who lived somewhere else. He moved amongst his friends’ homes to avoid discovery. When he reported the matter to the police he was simply told to go to another safer place if the people came and threatened him again.

14    After the election, the unknown group again went to his parents’ home twice more. They asked for the appellant and when his parents would not tell them, they beat his father.

15    Following this, fearing for his safety, the appellant’s parents told him he would not be safe in Sri Lanka. Some friends suggested that he should try and seek protection in Australia.

16    In his application for a protection visa, the appellant said that he feared being abducted, detained, tortured, shot and killed by the Sri Lankan government and the unknown armed group if he returned to Sri Lanka. He feared that he would be targeted because he was a known supporter of the TNA, having served as secretary of the council in his district and being well known for his involvement. He also said that his “cousin’s brother”, K, is a TNA local member of Parliament.

17    In his application for a protection visa, the appellant submitted that from his affiliation with the TNA it can be imputed that he is a supporter of the Liberation Tigers of Tamil Eelam (LTTE). However, the appellant also submitted evidence that the leadership of the TNA had denied having any allegiance to the LTTE. The appellant submitted that one of the reasons why he believes that he is perceived as being an LTTE sympathiser is because K is an Eastern Provincial Council member.

18    In relation to complementary protection under s 36(2)(aa) of the Act, i.e. that there are substantial grounds for believing that as a necessary and foreseeable consequence of the appellant being removed from Australia to Sri Lanka there is a real risk that he will suffer significant harm, the appellant made submissions with regard to the adverse treatment of people returning to Sri Lanka after failed asylum claims are brought. He submitted that he would be subjected to degrading treatment or punishment (s 36(2A)(d)).

Decision of the delegate

19    By a decision dated 26 July 2017, a delegate of the Minister refused the application. The delegate’s record of decision (ROD) summarised the appellant’s claims for protection as follows.

20    First, he is a young Tamil male from eastern Sri Lanka. These factors heighten the risk of harm towards him. He fears harm from the Sri Lankan authorities for these reasons.

21    Secondly, he was a known active supporter of the TNA who left Sri Lanka after some adverse encounters. Due to his support for the TNA (in conjunction with an upcoming election), he would be harmed by Sri Lankan authorities and others (members of paramilitary groups) if he was returned to Sri Lanka.

22    Thirdly, he fears risk of harm from the Sri Lankan authorities because he departed Sri Lanka illegally (in about October 2012) and would be returned to Sri Lanka as a failed asylum seeker from Australia.

23    The delegate found the appellant to be a “low-level TNA supporter”.

24    The delegate recorded that the appellant identified “his mother’s cousin’s son”, K, as the only relative who is involved in politics. The appellant had stated that he was last in contact with K in late 2012. The appellant had said that his father had told him that K is an elected member of the “local district government” and is aligned with the TNA.

25    The appellant was asked to provide information about the TNA. He was asked when it was formed. He stated “I’m not too sure. I can’t remember. But I think it’s 1990 sometime.” The delegate then noted on the basis of “country information” that the party was formed in 2001. The delegate noted that the appellant incorrectly stated that the TNA currently has 22 members in Parliament on the basis that “country information” notes that the TNA has 16 members in Parliament.

26    The delegate recorded that various matters were put to the appellant based on country information. These included that after the 2015 elections TNA supporters have not experienced political violence, that the TNA formally leads the opposition and has a majority of seats in the Northern Provincial Council, and that it remains unclear why the appellant fears return to Sri Lanka when there are no constitutional, legal or other restrictions barring minorities from participating in politics.

27    The delegate concluded that he was not satisfied that the appellant had an ongoing commitment to the party. He said that the appellant’s testimony revealed a general lack of awareness and steadfastness, and that the appellant no longer had any kind of commitment to or interest in the party. The delegate said that given that the appellant’s own family is not, and never has been, involved in politics and the appellant has not expressed any desire to have any connection with the TNA, he does not accept that the appellant would support the TNA if he were to return to Sri Lanka.

28    The delegate rejected the appellant’s contention that his Tamil ethnicity would of itself lead to an imputed association with the LTTE.

29    Ultimately, the delegate was not satisfied that the appellant is a refugee as defined in s 5H(1) of the Act and concluded that he is accordingly not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(aa) of the Act. The delegate was also not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed to Sri Lanka, there is a real risk that he will suffer significant harm as defined in s 36(2A) of the Act, and consequently found that he is not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(aa) of the Act as claimed by him, i.e. no complementary protection obligations.

30    The ROD records that the following information was “before” the delegate:

•    Departmental file CLF2015/79988 relating to the applicant.

•    Australian case law as footnoted throughout the assessment record.

•    Country information as footnoted throughout the assessment record including any relevant country information assessment prepared by the Department of Foreign Affairs and Trade specifically for the purpose of assessing protection obligations (see Direction No.56).

•    The United Nations High Commissioner for Refugees Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, Re-issued, Geneva, December 2011 (the UNHCR Handbook).

•    Procedures Advice Manual 3: Refugee and Humanitarian - Refugee Law Guidelines

•    Procedures Advice Manual 3: Refugee and Humanitarian - Complementary Protection Guidelines

•    Procedures Advice Manual 3: Refugee and Humanitarian - Common Processing Guidelines

•    Procedures Advice Manual 3: Refugee and Humanitarian - Temporary Protection and Fast Track Assessment Process

Referral of the delegate’s decision to the Authority for review

31    The appellant is a “fast track applicant” as defined in s 5(1) of the Act and therefore the delegate’s decision was automatically referred by the Department to the Authority for limited merits review under the “Fast Track Assessment Process” in Part 7AA. Thus, on 31 July 2017, the delegate’s decision was referred to the Authority for review pursuant to s 473CA of the Act. In terms of s 473CB, the Secretary must give to the Authority “review material” in respect of the referred decision. The “review material” includes amongst other things “material provided by the referred applicant to the person making the decision before the decision was made”. The Authority, in turn, must review a fast track reviewable decision referred to it, and in so doing, must pursue the objective in s 473FA “of providing a mechanism of limited review that is efficient, quick, free of bias and consistent with the Division 3 (conduct of review)”.

Decision of the Authority

32    Submissions were made on behalf of the appellant to the Authority. In particular, it was refuted that the appellant does not have a political or ethnic profile and that he would not be of interest to the authorities on return to Sri Lanka. It was submitted that when the appellant’s claims were viewed cumulatively and alongside the independent information that was before the delegate at the time of the delegate’s decision, it is clear that the appellant possesses a profile which would cause the Sri Lankan authorities to consider him to be a threat in post-conflict Sri Lanka.

33    The submissions on behalf of the appellant also challenged the delegate’s conclusions that the appellant was only a low-level TNA member and did not have a significant or adverse political profile. The submissions challenged the delegate’s conclusion that the appellant was not at risk of serious harm because of the changed circumstances in Sri Lanka. In doing so, reference was made to a UNHCR report on “Credibility assessment and related assumptions” and a journal article entitled “Young People’s Everyday Politics in Post-Conflict Sri Lanka”. Reference was also made to Human Rights Council reports and a Department of Foreign Affairs and Trade “country information” report.

34    By a decision dated 29 September 2017, the Authority affirmed the decision of the delegate to refuse the appellant’s application for a protection visa.

35    The reasons of the IAA include, at para [3], the following with regard to the additional information furnished by the appellant to the Authority:

The IAA received a submission from the applicant’s representative on 15 August 2017. To the extent that this engaged in argument with the delegate’s decision based on information which was before the delegate, I have had regard to it. Additionally, the submission refers to a number of pieces of information sourced from country information reports about the situation in Sri Lanka which were not before the delegate and which therefore amount to new information. The new information is either undated or dated prior to the delegate’s decision. All of this new information is country information rather than personal information. No reasons have been provided as to why this new information either could not have been provided before the date of the delegate’s decision or why it should be considered credible personal information. The applicant has not satisfied me that s 473DD(b) is met with regard to any of the new information provided. Further, the applicant and his representative had already been provided with ample opportunity to provide information on all the matters in question, and had been made aware by the delegate that he would have regard to any information which was provided to him before a decision was made. I am therefore not satisfied that there are exceptional circumstances to justify considering this new information.

36    From this it would appear that the additional information referred to in paragraph [3] above as having been included in the submissions made on behalf of the appellant was not considered by the Authority in its decision. That was on the basis that the conditions of neither paragraph (a) nor (b) of s 473DD of the Act were met. I will return to consider this section in more detail.

37    The Authority’s reasons refer in several places to the appellant’s relative, K. The reasons record that the appellant’s “mother’s cousin’s son, K, was and continues to be an active member of the TNA, and president of his local TNA branch”. It is recorded that the appellant has consistently claimed that his “mother’s cousin’s son (referred to by the applicant as his cousin’s brother), a person called K” was the president of his local branch of the TNA.

38    The Authority concluded as follows with regard to the level of the appellant’s political involvement:

As discussed above, I am not satisfied that, in the context of a predominantly Tamil village where the majority of residents support the TNA, that the applicant’s role as Secretary of his local TNA council was particularly significant or high-profile. The applicant has consistently stated that his mother’s cousin’s son (K) has been an active member of the TNA for many years in a senior position (President of his branch and Member of Parliament). He has recently spoken to his father who reported that K continues to be an elected representative. He has not claimed that K was ever persecuted or threatened with harm as a result of his political activities or membership of TNA, yet he is in a far more significant and high profile position than the applicant. The applicant stated that he organised meetings sometimes with the help of friends yet has not indicated that either the President or any other of the office bearers or volunteers at his local branch of the TNA were harassed, threatened or harmed in any way. The applicant has not offered any explanation about why he personally was singled out for harassment and threats in the way he described in his written statement.

39    Ultimately, the Authority stated that it had considered the appellant’s claims both individually and cumulatively and it had found that he did not suffer serious harm in Sri Lanka prior to his departure and was not of adverse interest to the Sri Lankan authorities, opposing political party members or any other persons prior to his departure. The Authority concluded that it is “not satisfied that there is a real chance of the applicant facing serious harm on his return or subsequently in the reasonably foreseeable future, from the Sri Lankan authorities or any other persons”.

40    The Authority also rejected the complementary protection claim. In doing so, the Authority referred to its earlier conclusion of not being satisfied that the appellant will be imputed to be a member or supporter of the LTTE. It also referred to not being satisfied on the country information that the mere fact of having left Sri Lanka, claimed asylum abroad, or spent a reasonably lengthy period of time in a country such as Australia, leads to the imputation of a political opinion of being against the government, or that the authorities would take an adverse interest towards the appellant that leads to a real chance of harm.

Federal Circuit Court

41    By application dated 23 October 2017, the appellant applied to the FCC for an order that the decision of the Authority be quashed and for a writ of mandamus directed to the Authority requiring it to determine the appellant’s application according to law.

42    The appellant asserted three grounds of review in the FCC, but only two remain relevant. They were in the following terms:

Ground 2

The Authority fell into jurisdictional error in failing to properly exercise its jurisdiction in respect of information submitted to the Authority (IAA at [3]); failed to ask correct questions and / or asked incorrect questions and irrational / illogical and / or denied procedural fairness and and / or misconstrued ss 473DC and 473DD of the Act.

Particulars

2.1     The Authority ignored the information.

2.2     The Authority failed to take into account the information.

2.3     The Authority failed to properly classify that the information was new information;

2.4     The Authority erred in consideration of the section s 473DD in the circumstances. The Authority failed to consider whether the delegate should have considered the relevant information in any event (such that there was no need to apply exceptional circumstances test).

2.5     The claim of the Applicant’s uncle was involved with TNA was critical claim.

2.6     There were exceptional circumstances which was ignored.

2.7     The Authority committed jurisdictional error.

Ground 3

The Authority fell into error by failing to assess the actual link between the Applicant’s uncle who is a MP. The Authority’s consideration of the Applicant’s claims thereby resulted in jurisdictional error.

Particulars

3.1     The Authority ignored the claims regarding the link between the Applicant and the Applicant’s uncle.

3.2     The Authority erred in consideration of the Applicant’s link to TNA in that the Authority failed to address whether the Applicant could be subject of harm upon return to Sri Lanka and failed to take into account the relevant guidelines (including UNHCR guidelines) and other information in respect of and failed to assess if the Applicant was at risk (thereby failing to ask correct question or asking incorrect questions and failed to give these claims realistic consideration and thereby committed jurisdictional error.

3.3     The Authority failed to consider the Applicant’s link and the risk because of the link.

3.4     The Authority finding (IAA at [25]) is as a result of failing to constructively consider the Applicant’s claims.

3.5     The Authority committed jurisdictional error.

43    The reasons of the primary judge summarise in detail the appellant’s claim for protection and the decision of the Authority, and then set out the three grounds of review pressed before it.

44    In relation to ground 2, the primary judge rejected the submission that the material identified by the Authority was not new information as referred to in s 473DD of the Act. It was reasoned that the Authority was correct to find that the information referred to in the submissions on behalf of the appellant which had not been before the delegate was new information. It was found that on a fair reading of the Authority’s reasons, the Authority took into account both limbs of s 473DD of the Act and had applied a requirement that the new information should be personal information.

45    The primary judge reasoned as follows on ground 3:

[42]    In relation to ground 3, Mr Kumar advanced that the link between the applicant and his mother’s cousin’s son, K, was an integer of the applicant’s claim to fear harm that should have been the subject of express findings. For reasons earlier given, I do not accept that any such claim fairly arose on the material. In respect of the claim of fear of harm by reason of his association with the TNA, the Authority took into account the applicant’s evidence in relation to the existence of his mother’s cousin’s son, K, as summarised above. There was no separate claim to fear harm that fairly arose in respect of the link between the applicant’s mother’s cousin’s son, K, and the applicant.

[43]    The Authority’s reasons reflect giving a real and genuine consideration to the applicant’s evidence in relation to the applicant’s claims to fear harm by reason of association with the TNA and there was no ignoring of the applicant’s evidence or failure to consider the applicant’s evidence by the Authority. Further, there was no constructive failure by the Authority to exercise its jurisdiction. No jurisdictional error as alleged in ground 3 is made out.

46    The reasons “earlier given” referred to by the primary judge in [42] deal with a part of the submissions made to the delegate which lists, amongst 11 dot-points in support of why the appellant has reason to believe that he is perceived as being an LTTE sympathiser and someone who possesses anti-government ideologies, the fact that K, his “first cousin”, is an Eastern Provincial Council member. In relation to that, the primary judge found that “there was no separate claim to fear of harm advanced by the applicant expressly or on a fair reading of the material before the Authority to fear of harm because of having a first cousin, K”. The primary judge went on to record that the Authority, in its reasons, considered the appellant’s association in the context of including the fact that he had a first cousin who had been involved in the Eastern Provincial Council and continued to hold such a position.

Grounds of appeal

47    The following grounds of appeal are asserted before me:

Ground 1

His Honour fell into error. His Honour should have found that the Authority fell into jurisdictional error in failing to properly exercise its jurisdiction in respect of information submitted to the Authority (IAA at [3]); His Honour should have found that the Authority failed to ask correct questions and / or asked incorrect questions and irrational / illogical and / or denied procedural fairness and / or misconstrued s 473DD of the Act in consideration of the information.

Particulars

(a)     The Appellant would provide further particulars upon receipt of written judgment.

(b)     The Authority ignored the information and failed to take into account the information.

(c)     The Authority failed to properly classify that the information was new information;

(d)     The Authority erred in consideration of the section s 473DD in the circumstances. The Authority failed to consider whether the delegate should have considered the relevant information in any event (such that there was no need to apply exceptional circumstances test).

(e)     The claim of the Applicant’s uncle was involved with TNA was critical claim.

(f)     There were exceptional circumstances which was ignored or construed very narrowly.

(g)     The Authority committed jurisdictional error.

Ground 2

His Honour should have found that the Authority fell into error by failing to assess the actual link between the Applicant’s brother-in-law who is a MP. The Authority’s consideration of the Applicant’s claims thereby resulted in jurisdictional error.

Particulars

(a)     His Honour should have found that the Authority failed to intellectually engage and ignored the claims regarding the link between the Applicant and the Applicant’s uncle.

(b)     His Honour should have found that the Authority erred in consideration of the Applicant’s link to LTTE (by TNA’s connection to LTTE / being remnants of LTTE) in that the Authority failed to address whether the Applicant could be subject of harm upon return to Sri Lanka and failed to take into account the relevant guidelines (including UNHCR guidelines) and other information in respect of and failed to assess if the Applicant was at risk (thereby failing to ask correct question or asking incorrect questions and failed to give these claims realistic consideration and thereby committed jurisdictional error.

(c)     The Authority failed to consider the Applicant’s link and the risk because of the link.

(d)     The Authority finding (IAA at [25]) is as a result of failing to constructively consider the Applicant’s claims.

(e)     The Authority committed jurisdictional error.

Ground 1: new information

The parties’ submissions

48    The appellant submits that the information referred to in its submission to the Authority was not “new information” and that the Authority fell into error in failing to consider the information as the subject matter was the same as was already before the delegate. To that extent, the appellant submits that the country information was not new information, but corroborative information on a pre-existing issue.

49    Alternatively, if the information is “new information”, the appellant submits that the Authority was required to engage with the information in a more meaningful way in deciding whether the information should be considered. The appellant submits that the primary judge should have found that the Authority erred in construing s 473DD in that it should have considered other aspects of the information, such as the importance of the information, in determining whether the Authority ought to have considered it.

50    The appellant also submits that the Authority erred in its interpretation of “exceptional circumstances” under s 473DD of the Act.

51    The Minister submits that the appellant’s error is to conflate the identification of an issue with factual information about that issue – just because the information that is presented relates to an issue that was before the delegate does not mean that that information is not new information within the meaning of the applicable provisions. The Minister also defends the Authority’s rejection of the “new information”, and submits that failure to satisfy either paragraph (a) or (b) of s 473DD is sufficient to justify rejection of the new information, and that even if there was a jurisdictional error in relation to either (a) or (b) but not both then the decision would stand.

Consideration

52    The relevant provisions from the Act are the following:

473DC Getting new information

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

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

(b)     the Authority considers may be relevant.

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

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

(a)     in writing; or

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

473DD Considering new information in exceptional circumstances

For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

(a)     the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

(b)     the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

(i)     was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

(ii)     is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.

53    Section 473DE deals with new information that the Authority acquires other than from the referred applicant and its obligations to advise the referred applicant of that new information. It is not presently relevant.

54    In Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 353 ALR 600, it was held by Gageler, Keane and Nettle JJ (the joint judgment) at [24] that the term “new information” must be read consistently when used in ss 473DC, 473DD and 473DE as limited to “information” (which may or may not be recorded in a document), in the ordinary sense of a communication of knowledge about some particular fact, subject or event, that meets the two conditions set out in s 473DC(1)(a) and (b). The first of those is that the information was not before the Minister or delegate at the time of making the decision to refuse to grant a protection visa. The second is that the Authority considers that the information may be relevant.

55    The joint judgment (at [29]) held that the preconditions set out in s 473DD(a) must always be met before the Authority can consider any new information. Whatever the source of new information, the Authority needs always to be satisfied that there are “exceptional circumstances” to justify considering it.

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

57    It was held (at [31]) that the conditions in paragraphs (a) and (b) are cumulative – once the Authority is satisfied that there are exceptional circumstances to justify considering new information, paragraph (b) sets out a further precondition that must also be met before the Authority can consider new information that is given to it, or proposed to be given to it, by the applicant. In respect of new information within that category, the Authority must be satisfied of one or other of the circumstances set out in subparagraphs (i) and (ii) of paragraph (b).

58    From the above, it is clear that information that was not before the delegate, but which was then submitted by the appellant to the Authority, was rightly categorised as “new information” by the Authority if the Authority considered it to be relevant. If the information was not relevant, then the Authority made no error in not considering it. If it was considered as relevant, then it was new information, and the Authority was then correct to consider whether the preconditions to considering it in s 473DD were met.

59    As indicated, information in this context is in the ordinary sense of a communication of knowledge about some particular fact, subject or event. The word “information” has been taken as referring to knowledge of relevant facts or circumstances communicated to, or received by, the relevant decision-maker: SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2; 150 FCR 214 at [205] per Allsop J. There is nothing to suggest that what is “new”, as a qualifier to “information”, is to be assessed or determined with reference to whether the issue that it is relevant to is a new or a pre-existing issue. To the contrary, it is clear from the text of s 473DC(1) and the treatment of it in Plaintiff M174, that information may be “new” in relation to a pre-existing issue.

60    The appellant’s submission to the contrary must accordingly be rejected.

61    In CHF16 v Minister for Immigration and Border Protection [2017] FCAFC 192, Gilmour, Robertson and Kerr JJ at [46] left open the question of whether the Authority must consider and make findings upon both the preconditions in paragraphs (a) and (b) of s 473DD, or whether having found that one or other of the preconditions is not met it can then not consider the information.

62    However, in AUH17 v Minister for Immigration and Border Protection [2018] FCA 388 at [33], Mortimer J accepted in the circumstances of that case that there was nothing erroneous about the Authority directing its attention to (b) rather than (a). It was held that where the appellant had not put any express material before the Authority to explain why he was relying on the new information for the first time, the Authority was not in error to identify (b) as not being satisfied, and that that was enough to trigger the prohibition in s 473DD. BRA16 v Minister for Immigration and Border Protection [2018] FCA 127 at [26] per Gilmour J is to the same effect. I respectfully agree.

63    There is a difference in the nature of the satisfaction required in each of paragraph (a) and (b) – in (a) it is a requirement that “the Authority is satisfied”, whereas in (b) the requirement is that “the referred applicant satisfies the Authority”.

64    The Authority found that the information was not personal information and that no reasons had been provided as to why the information could not have been provided before the date of the delegate’s decision. In the circumstances, the appellant failed to satisfy the Authority that the precondition in (b) was met, and the Authority did not commit jurisdictional error in not considering the new information.

65    In my opinion, that would be enough, and in the circumstances of this case the Authority would not need to consider exceptional circumstances (i.e. para (b)) separately. As it happens, it did, and concluded that it was not satisfied that there were exceptional circumstances to justify considering the new information. Even if there was jurisdictional error with regard to the Authority’s engagement with exceptional circumstances, a point on which I need reach no conclusion, the decision to reject the new information nevertheless stands.

66    The appellant refers to BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958 at [46]-[47] per White J for the proposition that the Authority can commit jurisdictional error by applying too narrow an interpretation of the term “exceptional circumstances”. There is a credible argument to that end in the present case because the Authority appears only to have considered two matters, namely that the appellant had ample opportunity to provide information on all relevant matters and that he had been made aware that the delegate would have regard to any information that was provided to him before a decision was made. However, as I have indicated, it is not necessary to decide this point.

67    It follows that there was no error by the primary judge in relation to ground 1, which must fail.

Ground 2: the connection between the appellant and K

The parties’ submissions

68    The appellant submits that the Authority did not consider, or did not adequately consider, the issue of his link to a family member as part of its forward-looking test. The different grounds to that submission are captured in the notice of appeal as set out above at [47].

69    The Minister submits that the Authority considered, and engaged with, the appellant’s claim that he was at risk by reason of his association with the TNA, of which the relative’s position was a small component. It is submitted that that component was addressed as part of the Authority’s assessment, which included a rejection of the appellant’s evidence about the alleged threats from men who had visited his parents’ home.

70    The Minister submits that in its treatment of the issue in relation to complementary protection, the Authority reiterated its broader findings about the appellant’s risk of harm in relation to his TNA associations. It was not necessary, in those circumstances, it is submitted, to make further specific reference to the appellant’s relative, and the positions that he held.

Consideration

71    The Authority did not fail to engage with, nor did it ignore, the appellant’s claims regarding the link between him and his relative, K. As I have shown above (at [37]-[38]), the Authority considered that relationship in some detail.

72    The following was stated in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 per French, Sackville and Hely JJ at [46]:

It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised “with an eye keenly attuned to error”. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.

73    That principle applies in this case. The Authority was plainly aware of the appellant’s assertion that his relative’s involvement in the TNA reflected on him, his political involvement or association, and any perception that that may link him to the LTTE. The primary judge was not in error in his rejection of this ground of challenge to the decision of the Authority.

Conclusion

74    In the circumstances, the appeal falls to be dismissed with costs.

Associate:

Dated:    4 June 2019