FEDERAL COURT OF AUSTRALIA

FJW17 v Minister for Home Affairs [2019] FCA 881

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs as agreed or taxed.

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

REASONS FOR JUDGMENT

MARKOVIC J:

1    This is an appeal from orders made by the Federal Circuit Court of Australia (Federal Circuit Court) dismissing an application for judicial review of a decision of the Immigration Assessment Authority (Authority): FJW17 v Minister for Immigration [2018] FCCA 3000 (FJW17). The Authority had affirmed a decision of a delegate of the first respondent (Minister) refusing to grant the appellant a Safe Haven Enterprise (subclass 790) visa (Visa).

background

2    The appellant is a citizen of Sri Lanka of Tamil ethnicity and Hindu religion. He arrived in Australia on 23 April 2013 as an unauthorised maritime arrival. On 5 July 2016 he applied for the Visa.

3    In support of his application for the Visa the appellant made the following claims:

(1)    when he was 18 or 19 his parents received a letter from the Tamil Makkal Viduthalai Pulikal (TMVP) requiring them to attend a meeting. They did not do so. As a result, the appellant was abducted by the TMVP (Karuna) and was held for a day before he escaped. The appellant claims that he was badly tortured by TMVP members. He required stitches in his tongue and lost half the vision in his right eye;

(2)    the appellant was taken to hospital and his mother, distressed by what had happened, threatened to complain to human rights organisations about his treatment. The following day the Karuna Group, together with the local police, came to the appellant’s house. They destroyed everything there and told the appellant’s mother that if she reported the incident to the human rights organisations they would shoot everyone in the family;

(3)    approximately one month later the appellant travelled to Jaffna because he feared that the Karuna Group would kidnap him again and kill him. He remained in Jaffna for about a year but had to return home to Batticaloa because of the war. Upon his return to Batticaloa he kept a low profile;

(4)    in about September 2011 the appellant registered to contest the October 2011 election as a candidate for the Elavar Democratic Front (EDF), a political party. He did not join the EDF because he supported its agenda but because he wanted that party to lose, as they were working with the Sri Lankan government. While with the EDF the appellant learnt that the Sri Lankan government was involved in buying and selling votes and interfering with the political process;

(5)    the EDF did not succeed at the 2011 election. The appellant learned from his friends, who were members of the EDF and had campaigned with him, that the EDF was looking for him;

(6)    a month before the appellant left Sri Lanka, his mother informed him that people were roaming outside their house and on one occasion she had seen an unknown man trying to open the gate but failing to do so because it was locked; and

(7)    the appellant fled Sri Lanka on 10 April 2013. While in detention in Queensland he learnt from his mother that suspicious people were still roaming around his house.

4    The appellant fears harm because of his Tamil ethnicity and actual and imputed political opinion from the EDF, TMVP and the Sri Lankan government. He also fears harm because he departed Sri Lanka illegally and because he was the subject of a data breach by the Department of Immigration and Border Protection (Department) in February 2014.

5    On 13 March 2017 a delegate of the Minister refused to grant the Visa.

6    On 16 March 2017 the delegate’s decision was referred to the Authority for review. On 6 April 2017 the appellant provided a written submission to the Authority (Submission).

7    On 16 November 2017 the Authority affirmed the delegate’s decision.

the authority’s decision

8    The Authority first addressed the information that was before it. It noted that it had regard to the material provided by the Secretary pursuant to s 473CB of the Migration Act 1958 (Cth) (Act).

9    The Authority referred to the Submission, observing that it contained argument about the findings and basis of the delegate’s decision and that much of the information referred to in it was already before it in the materials that had been provided by the Secretary. The Authority concluded that, to the extent the Submission contained argument and material which was already before it, it did not consider it to be new information.

10    The Authority then considered two documents that were included with the Submission: a letter from Mr A. Wijayaratnum JP, a member of the Kalmunai Municipal Council and president of the Illankai Tamil Arasu Kadchy, dated 23 March 2017 (March 2017 Letter) and a copy of an Australian interim Medicare card for the appellant’s brother. Only the Authority’s consideration of the March 2017 Letter is relevant to the appeal. In relation to that document, at [5] of its decision record the Authority said:

As part of the submission, the representative referred to and included a letter in support of the applicant’s claims by Mr A. Wijayaratnum JP, a member of the Kalmunai Municipal Council and President of the lllankai Tamil Arasu Kadchy, dated 23 March 2017. The letter was not before the delegate and is new information. As the letter post-dates the date of the delegate’s decision, I am satisfied the letter was not in existence and could not have been provided to the delegate prior to their decision. The information contained in the letter refers to his status as a candidate for the EDF in the Council elections of 2011 and other claimed activities undertaken by the applicant to destroy votes. I note that this information relates to events that occurred a number of years before the letter was written and was referred to by the applicant in his claims for protection before the delegate. The applicant has not satisfied me that the new information could not have been provided to the delegate prior to their decision. There is no indication in the referred materials that the applicant is personally known to the author and it appears the author is attesting to the applicant’s activities on the basis of having it reported to him, rather than through personal knowledge of the events. The applicant has not satisfied me that the letter is credible personal information which was not previously known, and had it been known, may have affected the consideration of the applicant’s claims. I do not consider that s.473DD(b) is met. The applicant was represented by a legally qualified registered migration agent who provided detailed post-interview submissions to the delegate on his behalf. I consider that the applicant had adequate opportunity to provide information in support of his claims for protection prior to the delegate’s decision. On this basis, I am also not satisfied that there are exceptional circumstances to justify considering the new information.

11    The Authority then turned to consider the appellant’s claims noting first, at [12] of its decision record, that it had listened to the audio recordings of the appellant’s entry interview and his visa interview with the delegate.

12    The Authority accepted that the Appellant was a Sri Lankan citizen of Tamil ethnicity; the appellant’s family was asked by the TMVP to attend a meeting in about March 2008; and the appellant was abducted and mistreated by members of the TMVP/Karuna Group in order to extort money from his family. However, given the timing of the appellant’s abduction relative to the contact by the TMVP/Karuna Group with his family and their non-attendance at the scheduled meeting, the Authority considered that the appellant’s abduction and mistreatment occurred in response to his family’s failure to attend a meeting with the TMVP.

13    The Authority also accepted that shortly after the appellant’s escape from his abductors his mother may have expressed an intention to make a complaint to human rights organisations which was met with retaliatory action from the Karuna Group and the local police. However, having regard to the appellant’s circumstances and the events which occurred, the Authority was satisfied that the letter from the TMVP requiring that the appellant’s family attend a TMVP meeting and the damage to the family home by the TMVP/Karuna Group were actions directed towards his family, rather than the appellant individually, and that the appellant’s abduction and mistreatment were retaliatory actions targeting his family’s decision to withhold funds and not attend the TMVP meeting as requested.

14    Relevant to grounds 1 and 2 in the appellant’s amended notice of appeal, at [17] of its decision record the Authority said:

17.    During his visa interview, the applicant stated that his mother arranged for him to travel to Jaffna where he kept a low profile staying with a friend of his father’s, who owned a shop. He experienced no adverse encounters with the Sri Lankan authorities, including the police, during this time and returned to his home in Batticaloa after a period of 12 months.

15    The Authority then considered the appellant’s claim that he was involved with the EDF. Given his failure to demonstrate a level of understanding about the EDF and its political environment, the Authority expressed its doubt that the appellant had stood as a candidate for the EDF in the 2011 elections as he claimed. The Authority found that the appellant’s claims of political activity, standing as a candidate for the EDF and the destruction of votes to rig election outcomes were a recent invention included in the Visa application to bolster his claim for protection. The Authority was not satisfied that those things occurred and thus was not satisfied that the appellant was targeted by EDF members or went into hiding following the 2011 election as he claimed. The Authority was not satisfied that the appellant would be imputed with anti-government opinion because he was involved in the EDF in the lead up to the 2011 elections or because he engaged in political activity. Nor was the Authority satisfied that people reported to be roaming near the appellant’s family home after the election or in 2013 were acting with adverse intent towards the appellant.

16    At [27] of its decision record, the Authority concluded as follows in relation to the appellant’s claim to fear harm from the Sri Lankan authorities:

27.    I accept that given the applicant’s prior experience of being abducted and mistreated, he is concerned that he may be targeted by the Sri Lankan authorities including the police and paramilitary groups such as the TMVP and Karuna Group, on return to Sri Lanka for imputed involvement with the LTTE or as a means for extorting money from his family. Country information before the delegate indicates that the security situation in Sri Lanka has improved with evidence of a reducing rate of extortion which still occurs but is not targeting a specific group. Country information also indicates that the Karuna Group is no longer able to carry out its activities as it once did as an active paramilitary force. Recent reports of country information do not support a conclusion that Tamils, including young Tamil men from the Eastern Province, are being systematically targeted and subjected to serious harm because of their race and/or area of origin. Given the applicant’s ability to reside in Jaffna for twelve months after escaping from his abductors in 2008/2009 and his return to live and work in Batticaloa without further adverse encounters, I am satisfied that he does not hold a profile of adverse interest with the Sri Lankan authorities including the police and paramilitary groups such as the TMVP and Karuna Group. For these reasons I am not satisfied there is a real chance the applicant would be targeted by the Sri Lankan authorities, including the police or paramilitary groups, on return to Sri Lanka.

(emphasis added, footnotes omitted.)

17    The Authority considered that the prospect of the appellant facing future extortion or abduction by the TMVP or other criminal entities on return to Sri Lanka was remote and was satisfied that the appellant would not face a real chance of serious harm on return to Sri Lanka because of his connection to his family who run a successful jewellery business or in the event he returned to work in that business.

18    The Authority also considered the appellant’s claims arising from his illegal departure from Sri Lanka. The Authority accepted that the appellant had departed Sri Lanka illegally and that he would return as a failed asylum seeker. However, it did not accept that the appellant would be imputed with anti-government opinion because he sought asylum in Australia, nor did it accept the appellant would suffer serious harm on account of having departed Sri Lanka illegally in breach of the Immigrants and Emigrants Act 1949. The Authority was satisfied that the Immigrants and Emigrants Act was a law of general application that was not applied in a discriminatory manner. In addition the Authority did not accept that the appellant would be denied or unable to access mental health services in Sri Lanka on account of any reason in s 5J(1)(a) of the Act.

19    The Authority concluded that the appellant did not face a real chance of serious harm on return to Sri Lanka and thus found that the appellant did not satisfy s 36(2)(a) of the Act.

20    Relying on its earlier findings the Authority also did not accept that the appellant faced a real risk of significant harm and was not satisfied that his mental health condition gave rise to a real risk of significant harm or that he would face a real risk of significant harm as a necessary and foreseeable consequence of being returned to Sri Lanka because he had departed illegally. Thus the Authority concluded that the appellant did not satisfy s 36(2)(aa) of the Act.

federal circuit court proceeding

21    The appellant advanced two grounds of review in the Federal Circuit Court which were (as written):

The IAA misunderstood in respect of what I said about my hiding in Jaffna, Sri Lanka.

The IAA has not complied with s 473DD of the Migration Act 1958

Particulars:

I told Immigration that I was in hiding in Jaffna, Sri Lanka.

Paragraph 27 of the IAA’s decision dated 16 November 2017 contradicts what I stated to the DIBP as the IAA did not mention about my hiding in Jaffna, Sri Lanka.

The letter given to the IAA was rejected as it was given after the DIBP’s refusal. The IAA should have admitted the letter as the letter confirms including that I was an EDP candidate and I burnt the votes. It is personal credible information and I complied with s 473DD(a)(b)(ii).

I need a obtain transcript of the Immigration interview CD in order to provide further particulars of my ground and other grounds and particulars.

22    In relation to the first ground the primary judge concluded that there was no evidence that the appellant had told the Department that he went “into hiding” in Jaffna. At [25] of FJW17 his Honour recorded what the evidence disclosed:

… The applicant told the enhanced screening interviewer that he went to Jaffna for a year after he left hospital. In his written claims for protection the applicant stated that he travelled to Jaffna as he was scared that the Karuna group would kidnap him and kill him, and that he stayed for a year. The delegate in its decision recorded this claim as having been made. The delegate accepted the applicant had moved to Jaffna for one year after he was abducted by the Karuna Group/TMVP. No mention is made that the applicant told the delegate he was “in hiding” in Jaffna. The delegate recorded the applicant’s claim that he went into hiding after the 2011 election, until he departed Sri Lanka. However, this was two years after he returned from Jaffna.

(footnotes omitted.)

23    The primary judge found that, insofar as the appellant had informed the delegate that he had kept a “low profile” in Jaffna, the Authority had noted this. The primary judge held that it was open to the Authority to refer to the appellant’s residence in Jaffna and his capacity to live and work there without encountering adverse treatment as being a part of its conclusion that the appellant did not hold a profile that would place him at risk with the authorities.

24    In relation to the second ground, which concerned the Authority’s treatment of the March 2017 Letter, the primary judge held that the “new information” was the information included in that letter seeking to support the appellant’s claims. The primary judge concluded that the Authority did not err in finding that neither limb of s 473DD of the Act was satisfied in relation to the March 2017 Letter.

The appeal

25    The appellant relies on an amended notice of appeal filed on 23 April 2019 in which he raises three grounds of appeal as follows:

1.    The Federal Circuit erred when it failed to find that the IAA had misunderstood the evidence in respect of what the applicant said about [the applicant] hiding in Jaffna.

Particulars

a.    The IAA considered the applicant ‘kept a low profile staying with a friend of his father’s who owned a shop’ (para 17) which implicitly suggested he was not in hiding and could have been discovered by authorities;

b.    The IAA concluded ‘Given the applicant’s ability to reside in Jaffna for twelve months after escaping his abductors in 2008/2009 and his return to live and work in Batticaloa without further adverse encounters, I am not satisfied that there is a real chance the applicant would be targeted by the Sri Lankan authorities, including the police and paramilitary groups, on return to Sri Lanka.’ (para 27);

c.    The evidence given did not disclose the applicant merely ‘kept a low profile’ but that he was in hiding [transcript page/s to be provided], which implicitly suggested the applicant could not have been subject to adverse encounters while in Jaffna;

d.    The conclusion that the applicant ‘kept a low profile’ misunderstood the evidence such that the IAA was able to incorrectly conclude, because the applicant had not been subject of adverse encounters (in Jaffna), it was ‘not satisfied that there is a real chance the applicant would be targeted by the Sri Lankan authorities, including the police and paramilitary groups, on return to Sri Lanka’, a finding it would not be able to make had it correctly understood the evidence.

e.    The Federal Circuit stated ‘There is no evidence before the Court that the applicant told the Minister’s Department at any stage that he went “into hiding” in Jaffna.’ And ‘No mention is made that the applicant told the delegate he was “in Hiding” in Jaffna.’ [25]

f.    The Federal Circuit erred in not finding that the IAA erred when the IAA misunderstood the evidence.

2.    The Federal Circuit erred when it failed to find that the IAA had misunderstood the evidence in respect of what the applicant said about [the applicant] hiding in Jaffna, such error leading the IAA to reach an unreasonable conclusion or a conclusion that no reasonable decision maker would make, amounting to jurisdictional error.

Particulars

See Particulars to Ground 1 above

Such error amounting to jurisdictional error.

3.    The Federal Circuit Court erred when it found the IAA had not complied with S 473DD of the Migration Act

Particulars

a.    The letter given to the IAA was rejected as it was given after the DIBP’s refusal. The IAA should have admitted the letter as the confirms including that the applicant was an EDP candidate and burnt the votes.

b.    The letter is personal credible information which complied with S 473DD (a) and (b) (ii).

(emphasis in original.)

26    In support of grounds 1 and 2, the appellant relies on an affidavit affirmed by Rajani Somasundaram, a NAATI certified provisional interpreter experienced in interpretation from Tamil into English and English into Tamil since 2010. Ms Somasundaram prepared a transcript of what she describes as “the Protection Visa interview CD” which was the interview of the appellant by the delegate.

Grounds 1 and 2

27    It is convenient to consider these grounds together as they both raise the Authority’s characterisation of answers given by the appellant at his interview with the delegate. The appellant relies on the following parts of the transcript of the interview where the delegate, denoted by the letter “M”, asked him about his time spent in Jaffna:

M:    Um…did you have to register ah…weekly when you got to Jaffna?

I:    Did you have to register weekly in Jaffna?

A:    Not needed. (inaudible). If landed have to Die or otherwise stay.

I:    There no need um…if anything happen you have to die, that’s it, otherwise you will live.

M:    Ah no.. like.. as you are a fighting aged Tamil living in Jaffna during the war were you required to report to the Police station every week?

I:    During the war time while you were living in Jaffna do you need to inform the Police every week of your stay?

A:    Have to report. I didn’t tell.

I:    Yes, we have to report but I didn’t report.

M:    You didn’t report? Did they do house searches in your area during that time?

I:    Did they look for people coming to each house?

A:    No. At that time war. Army will come to do check. Army and STF will come.

I:    That time war was happening and SDF and army

A:    Will do round up

I:    round up.

M:    So, if you didn’t register wouldn’t they have found out that, that you didn’t register when they did their regular checks of the area?

I:    If you haven’t register yourself didn’t they find out you while they do their regular checks?

A:    Didn’t find me means. I was in a safe place. I was in the basement of the ‘Vairamalikai’ boss’s house. Under the Jewellery shop.

I:    Ah.. I was in a very safe place, that is an underground place of ‘Vairamalikai’ boss’s place.

M:    Sorry?

A:    Gold shop.

I:    ‘Vairamalikai’ It is a shop name ‘Vairamalikai’. ‘Vairamalikai’ is means diamonds house in English but the Tamil name is ‘Vairamalikai’.

A:    They left me there. Because my father is friendly with him.

I:    Because that boss was known to my father.

M:    So, did you go out at all?

I:    So, did you go out from there?

A:    No.

I:    No.

M:    So you just stayed in the basement the whole time?

I:    So, you stayed in the place you told underground.

A:    The place below. There is space for the car also.

I:    So, there’s a place to park the car as well.

M:    How long were you staying inside this shop?

I:    How long did you stayed below the shop?

A:    Not inside all the time. At night time they will close the shop. Once the shop is closed I will come up to the shop.

I:    So, not always I was in the basement when they close the shop in the night I used to come up to the shop.

A:    Their house is in up. Inside the shop on the top.

I:    The house also on top of the shop.

M:    Um…why didn’t you just register? Because the authorities as I understand weren’t after you.

I:    Why didn’t you register? The authorities were looking for you. Why didn’t you register.

A:    If I register they can find out where I stay.

I:    If I register then they will know no? Where I am living.

M:    Why was that a problem?

I:    Why that’s a problem for you?

A:    Because ‘Karuna’ group and they did together. Police camp is next.

I:    Because

A:    Next to the place where the injustice had happened to me

I:    Because, Karuna group and the police are close by.

A:    In my village they knew I escaped.

I:    In my village they know that I escaped and ran away from there.

Appellant’s submissions

28    The appellant submitted that the Authority mischaracterised his evidence when, at [17] of its decision record, it said that “he kept a low profile”, and that the clear meaning of those words was that the appellant did not keep within the bounds of a residence while he was in Jaffna which would have allowed the authorities to become aware of his existence and location. The appellant submitted that, properly characterised, his evidence was that he did not leave the residence and was, in effect, in hiding and that his evidence did not suggest that the authorities could have known where he was. The appellant contended that the import of the Authority’s understanding of his evidence was that the authorities would have been aware of his existence and that such an interpretation was contrary to his evidence and demonstrated that the Authority misunderstood the evidence, amounting to jurisdictional error.

29    The appellant submitted that the Authority relied on its mischaracterisation to draw its conclusion at [27] of its decision record (see [15] above). As I understand the submission put by the appellant, he says that the primary judge considered it was open to the Authority to find that the appellant did not hold a profile that would place him at risk of the authorities despite the fact that he did not give any evidence to that effect to the Department. He contended that the primary judge erred in not finding that the Authority erred when it misunderstood the evidence before the delegate.

Consideration

30    In addressing the appellant’s claims the Authority had before it the material given to it by the Secretary under s 473CB of the Act and the appellant’s submissions. That is, it had a range of material, including the recording of the appellant’s interview with the delegate. Insofar as the appellant’s claim to have spent time in Jaffna was concerned that material included:

(1)    the transcript of the appellant’s “enhanced screening interview” which included:

How long did you stay in Jaffna for?

1 year.

(2)    the record of the appellant’s unauthorised maritime arrival and induction interview in which the only reference to time spent in Jaffna was in response to the question “what do you think will happen to you if you return to your country of nationality (residence)?” as follows:

A    I will be killed if I go back

Q:    Why?

A:    Because of what already happened to me – it could happen to me again

Q:    Why not live in a safer area of Sri Lanka?

A:    I lived on Jaffna for 1 year and went back to my village. You might think it is safe but it is not. You don’t know when they will come for you. We are not protected in Jaffna.

(3)    the appellant’s statement of claims provided to the Department under cover of an email dated 5 July 2016 in which the appellant said:

I was treated for my injuries for about a month. After staying home for a month, I travelled to Jaffna as I was scared that Karuna group will kidnap me again and kill me. I stayed in Jaffna for about one year but due to war had to return to Batticaloa, my home.

31    None of the other material provided by the appellant referred to time spent by him in Jaffna and, to the extent the material set out above referred to the appellant’s time spent in Jaffna, it did not suggest that he was in hiding while there.

32    At the interview with the delegate, in the appellant’s answers to questions on the topic of his time spent in Jaffna, the appellant said that he did not register with or report to the police in Jaffna as he was required to do because to do so would mean that they would know where he lived; at the time the Sri Lankan Army was undertaking checks of homes and rounding people up; and he was in a “safe place” in the basement of his father’s friend’s home and shop during the day and came up to the shop at night when the shop was closed.

33    The Authority’s characterisation of the appellant’s evidence must be considered in light of all the matters that were before it including the recording of the interview with the delegate. When that is done the appellant’s assertion of mischaracterisation of his evidence cannot be accepted. It is a settled principle that the reasons of an administrative decision-maker, such as the Authority, are not to be construed minutely with an eye keenly attuned to error or scrutinised in an overzealous manner in an attempt to discern some error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. But that is what the appellant urges the Court to do in this case.

34    The Authority’s reasons at [17] do not mischaracterise or misunderstand the evidence but summarise the substance of what was before it. That is that the appellant spent some time in Jaffna; he stayed with a friend of his father’s who owned a shop; and he experienced no adverse encounters or attention from the Sri Lankan authorities while there. The use of the phrase “low profile” is apt to describe what the appellant did, namely remain in the basement of the shop/residence during daylight hours and then emerge from there to the shop in the evenings.

35    If I am wrong about that and the Authority did mischaracterise or misunderstand the evidence, I accept the Minister’s submission that the finding at [27] in relation to the appellant’s time spent in Jaffna was not material to its ultimate conclusion, also at [27] of its reasons, that it was “not satisfied there is a real chance the [appellant] would be targeted by the Sri Lankan authorities, including the police or paramilitary groups, on return to Sri Lanka”. That conclusion was reliant on a number of findings in addition to the finding about the appellant’s ability to reside in Jaffna, which he seeks to impugn. Those findings included: the appellant was abducted by members of the TMVP/Karuna Group because his family failed to attend a TMVP meeting (at [14]); the action taken by the TMVP members/Karuna Group were aimed at the appellant’s family and not the appellant individually (at [16] and [26]); country information indicated that the security situation in Sri Lanka had improved with evidence of a reduced rate of extortion not aimed at any particular group; country information indicated that the Karuna Group no longer acts as a paramilitary force; country information did not support a conclusion that young Tamil males, including those from the Eastern Province, were being systematically targeted and subjected to serious harm because of their race or religion; and the appellant’s return to live and work in Batticaloa without further adverse encounters (at [27]).

36    Grounds 1 and 2 are thus not made out.

Ground 3

37    This ground concerns the Authority’s treatment of the March 2017 Letter at [5] of its decision record (see [10] above) and raises the issue of whether the Authority misapplied s 473DD of the Act.

Legislative framework and applicable principles

38    Sections 473DC and 473DD, which are found in Subdiv C of Div 3 of Pt 7AA of the Act titled “Additional information”, relevantly provide:

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.

…

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.

39    In Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 353 ALR 600; [2018] HCA 16 (M174/2016) at [24] Gageler, Keane and Nettle JJ held that the term “new information” was to be read consistently in ss 473DC, 473DD and 473DE as information “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)”. At [29]-[34], in considering s 473DD, their Honours said:

29.    The precondition 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.

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

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

32.    The circumstance of which the Authority needs to be satisfied in order to meet s 473DD(b)(i) is that the new information that is given, or proposed to be given, by the referred applicant was not, and could not have been, provided to the Minister before the Minister or delegate made the decision to refuse to grant the protection visa. No explication of that circumstance is required in the present case.

33.    The circumstance of which the Authority needs to be satisfied in order to meet s 473DD(b)(ii) does require some explication. In that provision, the term “personal information” takes its defined meaning within the Act of “information or an opinion about an identified individual, or an individual who is reasonably identifiable”. Unaided by considerations of legislative history, the reference in s 473DD(b)(ii) to personal information which was not previously “known” might have been read as confined to personal information not previously known to the referred applicant. Legislative history, however, is against that reading. The provision is the result of an amendment to the Bill for the 2014 Amendment Act made in the Senate. The purpose of the amendment was explained at the time as being to “extend the types of ‘new information’ that a referred applicant may present to [the Authority] to include, for example, evidence of significant torture and trauma which, if it had been known by either the Minister or the referred applicant, may have affected the consideration of the referred applicant's asylum claims by the Minister”. The Full Court of the Federal Court has correctly recognised that the identified purpose is best achieved by reading the reference to personal information which was not previously known as encompassing personal information which, although previously known to the referred applicant, was not previously known to the Minister.

34.    Accordingly, all that the Authority needs to be satisfied of in order to meet the precondition to its consideration of new information given, or proposed to be given, by the referred applicant set out in s 473DD(b)(ii) is that: (1) the information is credible information about an identified individual, or an individual who is reasonably identifiable; (2) the information was not previously known by either the Minister or the referred applicant; and (3) had the information been known by either the Minister or the referred applicant, the information may have affected the consideration of the referred applicant’s claims.

(footnotes omitted.)

40    In BVZ16 v Minister for Immigration and Border Protection (2017) 254 FCR 221 (BVZ16) White J considered the operation of s 473DD of the Act. At [8]-[9] his Honour said:

8    As can be seen, s 473DD provides that the IAA “must not consider” new information unless both of two conditions are satisfied. The first is that the IAA be satisfied that there are “exceptional circumstances to justify” considering the new information. The second (which contains alternatives) is that the IAA be satisfied that the new information was not, and could not have been, provided to the Minister before the Minister made the decision, or that it be previously unknown “credible personal information” which, had it been known, may have affected consideration of the appellant’s claim.

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

41    At [41] White J explained that a consideration of whether there are exceptional circumstances “will require consideration of all the relevant circumstances” because, as his Honour observed, “even though no one factor may be exceptional in combination the circumstances may be such as reasonably to be regarded as exceptional”. In Minister for Immigration and Border Protection v BBS16 (2017) 158 ALD 198; [2017] FCAFC 176 (BBS16) a Full Court of this Court agreed with White J’s construction of the term “exceptional circumstances”: at [104].

42    In AQU17 v Minister for Immigration and Border Protection (2018) 162 ALD 442; [2018] FCAFC 111, a Full Court of this Court (McKerracher, Murphy and Davies JJ) also considered the operation of s 473DD of the Act. After referring to the decisions in BVZ16, BBS16 and CHF16 v Minister for Immigration and Border Protection (2017) 162 ALD 1; [2017] FCAFC 192 their Honours said at [13]-[14]:

13    As a matter of construction, it is undoubtedly correct that s 473DD(a) and (b) are cumulative requirements. Section 473DD(a) imposes the requirement that the Authority must not consider new information unless it is satisfied that there are exceptional circumstances to justify considering the new information. Section 473DD(b) imposes the further requirement that the new information was not, and could not have been, provided to the Minister before the Minister made the decision to refuse to grant the protection visa (s 473DD(b)(i)) or is new information that 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 (s 473DD(b)(ii)). “Exceptional circumstances” is not a defined term for the purposes of s 473DD(a) and the words are to be given their ordinary meaning. In ordinary meaning, circumstances are “exceptional” if the circumstances may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon: BVZ16; Plaintiff M174. In Plaintiff M174 the plurality (Gageler, Keane and Nettle JJ with whom Gordon and Edelman JJ each agreed in separate reasons) observed at [30] in relation to the requirement in s 473DD(a):

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

The quotation is from R v Kelly at [51], which was also cited in BVZ16 for the meaning “exceptional circumstances” in the context of s 473DD(a). There may be a combination of factors which, when viewed together, constitute “exceptional circumstances”, or one factor of its own which may be sufficient for “exceptional circumstances” to exist. In each case, whether there are exceptional circumstances must depend on the particular circumstances of the visa applicant’s case.

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.

Appellant’s submissions

43    The appellant submitted that in finding that the March 2017 Letter was new information, because it post-dated the date of the delegate’s decision and “was not in existence and could not have been provided to the delegate prior to their decision”, the Authority made a finding under s 473DD(b)(i) of the Act. The appellant contended that the Authority erred when it made its further finding that the information in the March 2017 Letter “relates to events that occurred a number of years before the [March 2017 Letter] was written and was referred to by the [appellant] in his claims for protection before the delegate” and was not satisfied “that the new information could not have been provided to the delegate prior to their decision”.

44    The appellant submitted that the Authority’s conclusion that it was not satisfied that there were exceptional circumstances to justify it considering the new information as required by s 473DD(a) could not stand if the Court was to find that s 473DD(b)(i) was satisfied. The appellant observed that exceptional circumstances are those that are out of the ordinary course which justify the new information being considered, even though the information was not provided to the Minister at the time the decision was made under s 65 of the Act, and whether exceptional circumstances exist requires consideration of all of the circumstances because even though no one factor may be exceptional, in combination, the circumstances may be such as reasonably to be regarded as exceptional, relying on BVZ16. The appellant said that in BVZ16 the Court reasoned that, whilst the requirements of s 473DD(a) and s 473DD(b) are cumulative, they may nevertheless overlap and because the considerations in s 473DD(b)(i) and (ii) involve different considerations, both are potentially relevant in considering whether the circumstances are exceptional for the purposes of s 473DD(a).

45    The appellant submitted that the Authority failed to consider why the March 2017 Letter had not been provided earlier and whether material contained in it was relevant to s 473DD(a). He submitted that the primary judge erred in finding that the Authority did not comply with s 473DD of the Act and that it should have admitted the March 2017 Letter.

Consideration

46    For the following reasons this ground cannot succeed.

47    When [5] of the Authority’s decision record is read as a whole, it is clear that the Authority’s finding that the March 2017 Letter was not before the delegate because it post-dated the delegate’s decision was not a finding for the purposes of s 473DD(b)(i) which precluded any further consideration of the requirements of that subsection. In making that finding the Authority was observing that, given its date, the March 2017 Letter could not in fact have been before the delegate. That the document or information was not before the Minister at the time the decision was made is a matter to be considered in determining whether the information is “new information”: see s 473DC(1)(a). The Authority concluded that the March 2017 Letter was “new information”.

48    The Authority then turned to consider s 473DD of the Act. It did so first by considering whether the “new information” as contained in the March 2017 Letter “could not have been provided to the delegate” before the decision was made under s 65 of the Act, as required by s 473DD(b)(i). Contrary to the appellant’s submissions, the earlier finding that the March 2017 Letter was not before the Authority was not the end of the matter.

49    The Authority considered the content of the March 2017 Letter to determine whether the “new information” could not have been provided to the Minister prior to making the decision under s 65 of the Act. The content of the March 2017 Letter or, put another way, the knowledge it conveyed, was the relevant information: see M174/2016 at [24]. The Authority noted that the March 2017 Letter concerned events that had occurred a number of years prior to its date and related to events that were the subject of the appellant’s claims for protection. The Authority thus concluded that, given that content, the appellant had not satisfied it that the “new information” could not have been provided to the delegate prior to him making his decision. Accordingly there was no error in the Authority’s consideration of s 473DD(b)(i) of the Act.

50    It is apparent that the Authority then considered whether the March 2017 Letter met the requirements of s 473DD(b)(ii) of the Act. The Authority found that the appellant had not satisfied it that the March 2017 Letter met the requirements of that subsection, namely that it was credible personal information not previously known and, had it been known, may have affected the consideration of the appellant’s claims. The Authority’s finding in that regard was open to it. Having considered the March 2017 Letter the Authority found that its author set out events that had been reported to him rather than basing his observations on his own knowledge of the appellant. The Authority thus concluded that the appellant had not satisfied it that the March 2017 Letter met the requirements of s 473DD(b)(ii).

51    The appellant also seeks to impugn the Authority’s finding that it was not satisfied that there were exceptional circumstances to justify it considering the March 2017 Letter pursuant to s 473DD(a) of the Act. The crux of the appellant’s argument is that in considering whether there were “exceptional circumstances” the Authority failed to have regard to the content of the March 2017 Letter and the reasons why it had not been provided earlier.

52    As the authorities establish, what amounts to “exceptional circumstances” will vary from case to case; it is not the case that the factors in s 473DD(b)(i) and (ii) of the Act must always be considered by the Authority in deciding whether “exceptional circumstances” exist; and s 473DD(b) does not codify what constitutes “exceptional circumstances” but 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).

53    In this case, the Authority considered the appellant’s circumstances and, in particular, that he was represented at the time of his interview with the delegate, provided post-hearing submissions and had sufficient opportunity to provide information in support of his claims prior to the delegate’s decision. The Authority did not expressly refer to the content of the March 2017 Letter or why it had not been provided earlier. As to the former it was clearly aware of the content of the March 2017 Letter. It had earlier described the March 2017 Letter and it noted that the appellant had adequate opportunity to provide material to corroborate his claims. As to the latter the Submission, under cover of which the March 2017 Letter was provided to the Authority, provided no explanation as to why it could not have been provided earlier. No error has been established in the Authority’s findings in relation to s 473DD(a).

conclusion

54    For those reasons the appeal should be dismissed. As the appellant has been unsuccessful he should pay the Minister’s costs. I will make orders accordingly.

Associate:

Dated:    12 June 2019