FEDERAL COURT OF AUSTRALIA

AYK17 v Minister for Immigration and Border Protection [2019] FCA 1053

ORDERS

THE COURT ORDERS THAT:

1.    Leave is refused to the appellant to rely on ground 2 of a further amended notice of appeal filed on 27 June 2018.

2.    Leave is granted to the appellant to rely on ground 3 of a further amended notice of appeal filed on 27 June 2018.

3.    The appeal be allowed.

4.    Order 2 made by the Federal Circuit Court of Australia on 24 October 2017 be set aside and in its place it be ordered that the decision of the Immigration Assessment Authority made on 3 February 2017 is set aside and the matter be remitted to the Immigration Assessment Authority (differently constituted) for determination in accordance with law.

5.    The first respondent pay the appellant’s costs of and incidental to the appeal, to be fixed by way of a lump sum to be agreed between the parties.

6.    If the appellant and the first respondent do not agree as to a lump sum for the appellant’s costs, the matter of fixing a lump sum for costs is to be referred to a Registrar for determination.

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

REASONS FOR JUDGMENT

Introduction

1    This is an appeal against a decision and orders made by the Federal Circuit Court of Australia (FCCA): AYK17 v Minister for Immigration and Border Protection [2017] FCCA 2568.

2    The FCCA Judge dismissed the appellant’s application for judicial review of a decision of the Immigration Assessment Authority (also referred to as the IAA) made under Pt 7AA of the Migration Act 1958 (Cth). The Authority affirmed a decision of a delegate of the Minister for Immigration and Border Protection to refuse the appellant a Safe Haven Enterprise visa (SHEV).

3    It is uncontroversial that the appellant (also referred to as AYK17) is a citizen of Sri Lanka who left Sri Lanka legally (on his own passport) in October 2010 and travelled to Malaysia. He left Malaysia without a passport in August 2012 to travel to Australia. He arrived in Australia as an unauthorised maritime arrival.

Claims

4    The Authority summarised AYK17’s claims to fear harm in its decision record (or DR) at DR[2] and the delegate’s attitude to those claims at DR[3] as follows:

2.    The applicant claims to fear harm from the Sri Lankan authorities arising from his imputed support of the Liberation Tigers of Tamil Eelam (LTTE) and due to his ethnicity. He also claims to fear harm due to being a returned failed asylum seeker and because of informers in his village.

3.    The delegate accepted the applicant’s factual claims including his experiences of interrogation and assault by the Sri Lankan authorities. The delegate considered the applicant’s claims against the current situation in Sri Lanka and found that the applicant does not have a well-founded fear of persecution, and there is not a real chance or risk that the applicant would suffer serious harm or significant harm if he was returned to Sri Lanka.

5    The Authority summarised the appellant’s factual claims at DR[7] as follows:

•    The applicant was born in [redacted] district, in the Northern Province of Sri Lanka. He is a Tamil Catholic.

•    Although his district was an LTTE controlled area, neither the applicant nor any member of his family has had any connection or contact with the LTTE, apart from one elder brother who undertook compulsory self-defence training with the LTTE. That brother was never detained, questioned or suspected by the authorities and is now deceased as a result of a fishing accident.

•    The applicant and his family have been displaced on several occasions due to the fighting between the LTTE and the Sri Lankan Army (SLA). The family has not been returned to their home and remain in resettlement camp administered by the church.

•    The applicant was interrogated and assaulted by the SLA and the Criminal Investigation Department (CID) on several occasions during the period 2007-2010. The applicant’s younger brother was also interrogated and assaulted during this time.

•    The applicant was required to report every fortnight to the CID office in the village.

•    The applicant was imputed to have fought with the LTTE because he was an unmarried adult male Tamil.

•    The applicant left Sri Lanka due to fear of the authorities. The applicant’s younger brother has also left Sri Lanka due to fear of the authorities.

•    The authorities have questioned his family members about his whereabouts.

•    The applicant will face harm as a returned asylum seeker.

•    The applicant will face harm as a result of informers in his village who will identify him as having been involved with the LTTE.

6    Words defined at DR[2] and DR[7] will carry the same meaning in these reasons.

Written submissions and new claim following referral to the Authority

7    Following the referral of the delegate’s decision to the Authority, AYK17’s legal advisers provided written submissions to the Authority on 27 January 2017. Mr Seymour, counsel for the appellant, conceded that the text of the written submissions is “somewhat awkward”. The written submissions said (as written, emphasis added):

We have been asked to prepare submissions re above applicant. We are doing this pro bono and request you to correspond to the Applicant directly.

Applicant claims that he has been subjected to detention and physical assaults. The Delegate has accepted that (page 3 of the Protection Visa Decision Record):

The Applicant was never member of the LTTE but fears harm for an imputed connection to the LTTE.

The applicant was subjected to detention and physical assaults as part of group ‘round ups” conducted by the Sri Lankan military in his home town.

The Applicant’s family have been questioned as to his locations.

On behalf of the applicant’s it is submitted that the Applicant holds an objective fear of harm if returned to Sri Lanka because of his imputed political opinion as a failed asylum seeker.

We submit because of the information that is available now on public domain. It is extracted below.

As some inmates who were with me were killed in incarceration, I could be seen as a potential witness of such crimes. This is one of the bases upon which I claim protection. I also claim protection as I will be imputed with the LTTE profile as they did in the early 1990s.

Country information suggests that there have been incidents involving persons suspected of LTTE activities even now.

[References and commentary on articles posted on the websites of firstpost, newsfirst and colombogazette were then set out]

Applicant has also informed us that his brother has had similar problems Sri Lanka. His brother has sustained an injury and was subsequently mistreated by Sri Lankan authorities on suspicion that he was involved in the LTTE. That brother has been granted protection in Australia.

In that light we ask your office to considerate of the Applicant’s fears.

It may also be the case that his family is suspected of LTTE connections. That suspicion can arouse further problems to the Applicant.

8    It is the words in the written submissions emphasised in bold which has been the focus of submissions on the appeal; it will be referred to as the “new material” to avoid the use of any loaded term.

IAA’s determination with respect to the new material

9    It is useful to set out what the Authority said under the heading “Information before the IAA” in its decision record. The material which is most relevant to the appeal has been emphasised in bold in DR[5]:

Information before the IAA

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

5.    The applicant’s agent provided written submissions to the IAA on 27 January 2017. Where these submissions refer to and challenge the delegate’s decision and issues that were before the delegate and I am satisfied that this is not new information. I have considered those parts of the submissions on that basis. The submissions also make what appears to be a new claim that the applicant may be a potential witness to the deaths of people in incarceration. This claim has not previously been put forward by the applicant. It is not apparent why the information was not provided to the delegate before the decision was made. No explanation has been provided. The applicant was legally represented in relation to the SHEV application and at the SHEV interview where he was asked a number of times whether he had provided all information he wished to rely on. In these circumstances and pursuant to s.473DD(a) of the Act, I am not satisfied that there are any exceptional circumstances which justify its consideration.

6.    The submissions include three media reports that refer to the arrests of suspected LTTE members. These reports contain general information and not personal information. They all pre-date the delegate’s decision. I have considered the other material before the delegate and am satisfied that these reports were not provided to the delegate before the decision. I am satisfied that this is new information. As already noted, the applicant was legally represented in relation to the SHEV application and at the SHEV interview, where he was asked a number of times whether he had provided all information he wished to rely on. In these circumstances and pursuant to s.473DD(a) of the Act, I am not satisfied that there are any exceptional circumstances which justify its consideration.

Legislation

10    As AYK17’s application for judicial review and his grounds of appeal related to whether or not the Authority’s reasons at DR[5] comply with ss 473DC and 473DD of the Migration Act in relation to the new material, it is useful to set out those provisions. Sections 473DC and 473DD appear in Pt 7AA (which relates to the fast track review process for certain protection visa decisions), in Div 3 under the under the heading “Conduct of review” and in “Subdivision C-Additional information”. They provide as follows:

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.

11    These provisions must be read with what can be described as the “primary rule” (see BZC17 v Minister for Immigration and Border Protection [2018] FCA 902 (BZC17) at [26] per Mortimer J) in s 473DB(1), which provides:

(1)    Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB:

(a)    without accepting or requesting new information; and

(b)    without interviewing the referred applicant.

FCCA’s Decision

12    The FCCA Judge’s reasons were delivered ex tempore. His Honour summarised the Authority’s decision record before setting out (at J[20]), the sole ground of judicial review on which AYK17 relied, as follows (as written):

The IAA failed to consider the claim raised by the Applicant that he had a well founded fear of being harmed on account of having witnessed people being killed while he was in custody in Sri Lanka and therefore a witness to crimes committed by the Sri Lankan authorities.

Particulars

This claim was not considered because the IAA erroneously applied s 473DD to it which was wrong because:

a.    No assessment had been carried out under s 473DC of the status of that information, and accordingly no proper conclusion could have been reached regarding it under s 473DD; and

b.    Section 473DD would not apply to properly distinct claim put forward in a review under s 473CC the Act.

13    The FCCA Judge’s consideration of this ground is set out at J[21]-[26]. As the consideration is relatively brief it is useful to set it out in full (as written):

21.    Mr Seymour of counsel on behalf of the applicant confirmed that only ground 3 was pressed. Mr Seymour submitted that there were two limbs in relation to ground 3. In relation to the first limb, Mr Seymour submitted that on the proper construction of s 473DC of the Act, the Authority was required to make a finding in relation to whether or not the new information was relevant. Mr Seymour submitted that the Authority had conflated the requirements of s 473DC of the Act with the requirements of section s 473DD of the Act and had approached the assessment under s 473DD out of context.

22.    The second argument advanced by Mr Seymour in relation to the exercise of power under s 473DD of the Act was founded on the conflation by the Authority of what was said to be information and a claim. The new information in the submission constituted identification of the applicant witnessing alleged incidents and information by the applicant asserting a claim on that basis. Mr Seymour submitted that there was a distinction between the information in that regard and that the Authority had failed to recognise the distinction in coming to assess the requirements of s 473DD of the Act.

23.    Mr Seymour took the Court to the decision of Logan J in CDZ16 v Minister for Immigration and Border Protection [2017] FCA 967 relevantly at paragraphs [8] - [10], as well as to the decision of Judge Driver in this Court in CVK16 v Minister for Immigration & Anor [2017] FCCA 235, relevantly at [41] – [46]. I do not accept the contention that s 473DC of the Act required the Authority to make an express finding identifying the relevance of the applicant’s information as to the witnessing of an alleged incident and the applicant’s information of asserting that this was a basis for his claim. It was patently relevant. It was patently information meeting the requirements of s 473DC of the Act, and the Authority patently took into account both aspects of the information referring to the potential claim and referring to the alleged witnessing of the incident. There was no failure by the Authority to consider the requirements of s 473DC of the Act. There is no substance in the assertion of any conflating with the exercise requirement under s 473DC of the Act with the exercise of the consideration that the Authority then embarked upon under s 473DD of the Act. The Authority’s reasons are not be read with a keen eye for error. The alleged error of conflation based on the alleged errors in s 473DC of the Act are not made out.

24.    The Authority clearly identified what was patently on its face new information within s 473DC of the Act. No submission was advanced to this Court that the information including the claim, are not new information. The suggestion that there was a distinction between the two is a distinction that was recognised and understood by the Authority given its reference to both the incident and claim. There was no bundling together of an erroneous understanding by the Authority of the requirements of s 473DC or s 473DD of the Act. This is not a case where any other error has been alleged under s 473DD of the Act.

25.    I note that on its face, there is no basis to hold that the Authority has adopted an erroneously narrow construction of exceptional circumstances. Further, the Authority’s reasons in relation to the new information that was received and the reference to exceptional circumstances, identifies consideration of the whole of the provisions in s 473DD of the Act. The Authority’s reasons make the reference to personal information and the reference to information that could have been provided reflect taking into account both limbs of s 473DD(b) of the Act. The Court finds that the Authority did not err in its application of s 473DD of the Act.

26.    No jurisdictional error as alleged in the amended application is made out. Accordingly, the amended application is dismissed.

14    In CDZ16 v Minister for Immigration and Border Protection [2017] FCA 967 (CDZ16) at [8]-[10], Logan J addressed a ground of appeal which was to the effect that the IAA in that case had misconstrued or misapplied ss 473DC and 473DD as follows:

8    Ground 1 proceeds upon the mistaken understanding that the term “new information”, where it appears in s 473DD, does not carry with it the meaning of that term as supplied by s 473DC(1). One element of that definition is that the information concerned must be information that the Authority “considers may be relevant”.

9    The information concerned comprised two news articles, which post-dated the Minister’s delegate’s decision and which the appellant proffered to the Authority. The appellant accepted that the Authority had correctly summarised the effect of these articles in its reasons (at [6]) in stating:

Two of the articles post-date the delegate’s decision. The first refers to a young man who was skinned alive in Ghor province because he was said to have been the distant relative of a man suspected of killing a former Taliban commander. The second article reports on Taliban suicide bombers who raided a courthouse in Ghazni city, killing 6 people in what they said was revenge for the execution of Taliban-linked prisoners.

[footnote references omitted]

The Authority expressed the view that neither article was relevant to the applicant’s particular claims.

10    In terms, s 473DC(1) consigns the subject of relevance to the Authority’s evaluative judgement and then only to the extent that the Authority “considers” that the information concerned “may”, not “must”, be relevant. Language of this kind has the effect that it is not for a court on judicial review, much less for this Court in the exercise of appellate jurisdiction, itself to determine whether the information is or is not relevant or even whether it may be relevant. It is enough that a conclusion is reasonably open to the Authority that the information may or, may not, be relevant. The Authority correctly appreciated that the articles were relevant to the general subject of violence in Afghanistan but formed the view that neither touched on a basis for the claimed fear of persecution or, for that matter, more specific issues such as an ability to live in Kabul, even if not elsewhere in Afghanistan. It was reasonably open to the Authority to consider that neither of the news articles might be relevant to a claimed basis of fear of persecution. That being so, it was unnecessary for the Authority to advert to any of the considerations specified in s 473DD, because the need to consider them is predicated upon the existence of “new information”, as defined. Neither article comprised “new information”.

15    In CVK16 v Minister for Immigration Border Protection [2017] FCCA 235 at [41]-[46], Driver J addressed the argument that new material was a new “claim to fear specific harm” but not “new information” within s 473DD. Judge Driver found (at [44]) that it would disregard what was plainly Parliament’s intention to accept that interpretation on the basis that Parliament’s intention was to restrict applicants to material before the delegate, save in exceptional circumstances. Judge Driver noted that the Authority does not review decisions of delegates in the same way as the Administrative Appeals Tribunal; it cannot substitute its own decision, it can only affirm the delegate’s decision or remit the case for further consideration. Judge Driver said that the Authority does not stand in the shoes of the original decision maker in the same way as the Tribunal and it would be very odd if the Authority could consider new claims as a general rule. Judge Driver also found (at [45]) that it would be artificial to distinguish between “claims” and “information”, saying that “claims” do not exist in a vacuum and a claim only carries with it meaning capable of consideration if it is accompanied by asserted facts and circumstances, which are “undoubtedly” “information” for the purposes of ss 473DC and 473DD.

Grounds of appeal

16    In the appellant’s amended notice of appeal, his grounds of appeal were stated as follows:

Grounds of appeal

1.    The trial judge erred in failing to find that the decision of the [Authority] made on 3 February 2017 was invalid for jurisdictional error in that the [Authority] had failed to lawfully consider the claim of the Appellant that he had a well-founded fear of persecution if returned to Sri Lanka on account of having witnessed people being killed while in custody and therefore a witness to crimes being committed by Sri Lankan authorities because:

a.    the [Authority] erroneously applied s 473DD to the claim rather than to information obtained by the [Authority]; and

b.    the [Authority] failed to properly assess and characterise the information it had obtained under s 473DC meaning that no proper application of s 473DD could have occurred.

2.    The trial judge either failed to deal with a substantive integer of the Application before the Federal Circuit Court, being the proper scope of s 473DD, or failed to provide adequate reasons in respect of rejecting that part of the Appellant’s case.

17    Rather unhelpfully, particulars a and b of the first ground of appeal related to particulars b and a (respectively) of the ground of review considered by the FCCA. Written submissions also referred to the “first ground” and the “second ground”, rather than to relevant particulars. The lack of clarity that this engendered was further exacerbated by the fact that ground “2” of the appeal was introduced with a proposed amended notice of appeal which was included with the appellant’s submissions in chief. Counsel for the appellant submitted that ground 2 was related to ground 1a (of the appeal and therefore to the FCCA Judge’s consideration of particular b of the ground of review). Counsel accepted that leave to rely on ground 2 of the appeal would be required.

18    I understand the summary of the grounds of appeal which appeared in the appellant’s written submissions in chief at [18] to mean that the grounds of appeal are, in effect:

(1)    The FCCA Judge erred in finding that s 473DC of the Migration Act would not require the Authority to make an express finding concerning the relevance of alleged “new information”; that is, the FCCA Judge erred by finding that matters not expressly disclosed in the Authority’s decision record were “patently” taken into account. I will refer to this as the “Section 473DC Ground” (although counsel for the appellant suggested that it should be referred to as the “Application of s 473DD Ground”) and I understand it to relate to ground 1b. of the appeal; and

(2)    The FCCA Judge failed to consider and determine ground 1b of the grounds of review properly, or his Honour failed to provide adequate reasons for rejecting that ground. To the extent that J[24]-[25] are intended to reject ground 1b of the grounds of review, they are based on a misconstruction of s 473DD which fails to distinguish between new information and a claim. Counsel for the appellant referred to this as the “Scope of s 473DD Ground”. I understand it to relate to ground 1a and proposed ground 2 of the appeal.

19    In his written submissions in chief at [13], AYK17 says that, in context, the new material was drawing attention to the fact that the claim of a fear of persecution based upon an imputed political opinion as a failed asylum seeker was tied to and exacerbated by his past in having been rounded up with others and in having seen other inmates killed by authorities. Counsel submitted that this would make the appellant’s particular fear of harm different to a general claim of a person having left Sri Lanka and failed in a claim to asylum (which was the more limited context for the delegate’s decision).

20    At the hearing, the appellant (through counsel) sought to raise a new ground, which he formalised as ground 3 of the appeal in a further amended notice of appeal which he was given leave to file and serve:

3.    With leave of the court to raise a ground not put before the Court below: the Authority made a jurisdictional error in making its decision in that it unduly narrowed its consideration of the term "exceptional circumstances" in s 473DD and failed to have regard to the full context of the "new information" provided by the Appellant to it in the Submission in the context of all claims made by the Appellant.

21    At the hearing, the appellant and the Minister were granted leave to file supplementary submissions in relation to the proposed ground 3, and each did so.

Minister’s submissions

22    In summary, the Minister says that the appeal should be dismissed because:

(1)    neither limb of ground 1 is made out and:

    In relation to ground 1a, as a matter of statutory construction there is no reason to differentiate between consideration of a new claim based on new information and the new information itself;

    In relation to ground 1b, the Authority considered the new information in the written submissions to be relevant and (having regard to the use of the word “may” in s 473DC(1)(b)) was not required to engage in an analysis of the extent of that relevance.

(2)    Leave to rely on ground 2 should be refused. While the Minister will not suffer prejudice if leave is given, ground 2 has insufficient prospects of success: the FCCA Judge adequately explained his reasons for rejecting the appellant’s contentions and, in any event, the grant of relief on this ground would be futile. If leave were to be given, it should be dismissed on the same basis.

(3)    Proposed ground 3 has no merit.

23    The Minister’s detailed submissions are, as far as necessary, taken up in the consideration of the grounds set out in the further amended notice of appeal.

Section 473DC Ground

Appellant’s submissions

24    At the hearing, counsel for the appellant sought to clarify what he meant by the Section 473DC Ground. Counsel said that the appellant accepts that it was not necessary for the Authority to make a finding as to whether the new material was “new information” but it is necessary to make an assessment of the relevance of the new material before applying s 473DD(a) to determine whether “exceptional circumstances” exist. It is easiest to see that that has been done if there is an express finding.

25    Counsel submitted that the Authority’s reasons do not reveal that it made the assessment of the new material required by s 473DC and the FCCA Judge was wrong to find that it had as there is “not a word of” DR[5] addressed to the question of whether the alleged new information was or was not “relevant” for the purposes of s 473DC(1)(b). Counsel says that that is not reading the Authority’s reasons with an eye keenly attuned to error.

26    Counsel submitted that it is necessary first to characterise the status of the new material under s 473DC (that is, is it “new information” and is the information “relevant”) as a step preliminary to its use under s 473DD. At the hearing, counsel relied on BZC17. In BZC17 at [27], [29] and [43] Mortimer J said:

27    The term “new information”, rather than being defined in a dictionary or a separate provision, is defined in s 473DC(1). It is apparent, as the Federal Circuit Court noted, that there are two limbs to the definition. The first limb concerns a matter of historical fact: namely, whether the “documents or information” were or were not before the Minister or the Minister’s delegate when the decision under review was made. The second limb relates to a state of mind the Authority must form about the relevance of the documents or information to the fast track decision which it is required to make.

…

29    The issue raised by this ground of appeal, in terms, is anterior to any issue concerning the Authority’s approach to s 473DD. Rather, ground 1 centres on whether the Authority turned its mind at all to the photographs as potential “new information”.

…

43    The Federal Circuit Court was in my opinion in error to dismiss this ground of review by concluding (at [67]) that it was open to the Authority to treat the photographs, as the Federal Circuit Court found it did, as not being relevant and therefore not being new information within s 473DC of the Act. That it may have been “open” to the Authority to take this course is not to the point: the Authority’s reasons do not demonstrate that it did, in fact, take this course. The reasons are silent about the photographs. They are silent about whether the photographs “may be relevant” to the fast track review. They are silent on the first limb of the definition of “new information” in s 473DC(1)(a). There is no basis in its reasons to find, or infer, that the Authority considered the photographs against the definition of “new information” in s 473DC of the Act. The better view is that it overlooked them, and that is what I find occurred.

27    Counsel submitted that the Authority in AYK17’s case failed to deal with that anterior step and “leapt over” the issue of relevance in a rush to get to s 473DD. He relied on [20] of his written submissions to the FCCA Judge but it is useful to set out [19]-[20] of those submissions as follows:

Given the simple task of statutory construction outlined above, the Applicant’s challenge to the IAA decision is that no characterisation of the alleged new information was performed by the IAA under s 473DC – specifically paragraph (b) – so that no proper determination could be made regarding the use of that information under s 473DD.

That is, the IAA made no assessment as to the relevance of the alleged new information. If it had done so, there would have been findings regarding the credibility or probity of that evidence within the context of the Applicant’s full claims that would have properly informed an assessment of whether circumstances were exceptional under s 473DD. Instead, the IAA conflated or ignored the requirements of s 473DC by moving straight to s 473DD without regard to the statutory requirement of how to inform itself compliant with Part 7AA.

28    Counsel rhetorically asked “just what is apparent on the face of the reasons of the Authority [in AYK17’s case]?” Counsel submitted that the Court would not be assisted by the FCCA Judge’s reasons (at J[23]) because his Honour, in effect, made a finding of his own that the “applicant’s information as to the witnessing of an alleged incident and the applicant’s information of asserting that this was a basis for his claim” was “patently relevant”. Counsel submitted that it is not the function of the FCCA in conducting judicial review to make such a finding and it is not demonstrable from the Authority’s decision record that it “is patent that it was taken into account”.

29    Counsel submitted that each step is mandatory. He submitted that there is nothing in s 473DD which suggests that Authority may treat any step as discretionary, relying on DYS16 v Minister for Immigration and Border Protection [2018] FCAFC 33; 260 FCR 260 (DYS16) at [16]. Counsel submitted that this is critical because it is only the assessment of relevance which informs the “evaluative judgment” required under s 473DD(a) and s 473DD(b): relying on DYS16 at [17], CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 (CSR16) at [37] and [41] and BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958; 254 FCR 221 (BVZ16) at [9].

Consideration

30    Having regard to the structure of, and language used in, DR[5] and DR[6], it is clear that the Authority understood that the task it was required to undertake in relation to the written submissions was to determine whether or not they included “new information” as defined in s 473DC(1) and, if so, whether s 473DD acted as a bar to the Authority taking that “new information” into consideration for the purposes of making a decision in relation to the fast track review.

31    As the appellant acknowledged, the meaning of the term “new information” was discussed by Gageler, Keane and Nettle JJ in Plaintiff M174/2016 v Minister for Immigration and Boarder Protection [2018] HCA 16 (Plaintiff M174/2016) at [24] as follows (footnote deleted, emphasis added):

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 is that the information was not before the Minister or delegate at the time of making the decision to refuse to grant the protection visa. The second is that the Authority considers that the information may be relevant.

32    At DR[5], the Authority found that, insofar as the written submissions referred to and challenged the delegate’s decision and issues that were before the delegate, that was “not new information”. It is plain from the Authority’s language that it was addressing s 473DC(1). It needed to say no more about that material as those submissions were not “new information”, the Authority was not restricted in considering them as part of the fast track review.

33    The Authority then moved on in DR[5] to consider the new material. The Authority said that it “appears to be a new claim”; it then found that AYK17 had not previously (that is, before his pro bono lawyers gave the written submissions to the Authority) put forward the claim that he may be a witness to the deaths of people in incarceration, and it then said that it was not apparent why “the information” was not provided to the delegate before the decision was made. On a plain reading, the Authority identified what might be “new information” for the purposes of s 473DC(1)(a).

34    The determination of the questions of whether “information” was before the delegate when the decision under s 65 was made and whether the information “may be relevant” under s 473DC is undoubtedly anterior to the decision to be made under s 473DD: see BZC17 at [29]. In BZC17, the Authority fell into error because its reasons did not mention photographs provided for the first time with submissions to the Authority; it was therefore not apparent that the Authority had made a determination of whether the photographs “may be relevant” at all and Mortimer J found that it could not be inferred that the Authority had considered the issue of relevance and decided that the photographs were not relevant. Indeed, her Honour expressly found (at [39]) that the photographs were overlooked. That is not the situation in this case.

35    In AYK17’s case the Authority expressly referred to the new material as a “new claim” and noted that no explanation had been offered for why that “information” had not been put before the delegate. The Authority then moved on to consider whether exceptional circumstances existed within s 473DD(a). It is implicit in this step that the Authority accepted that the new material “may” be relevant to the fast track review as required by s 473DC(1)(b). If it had found that the new material was not relevant to the fast track review, there would have been no necessity to consider whether the requirements of s 473DD were met, since the Authority would be required to disregard the new material as irrelevant. The appellant’s submission that the Authority “leapt over” the step required by s 473DC(1)(b) in a rush to make the determination (which it is only required to make in relation to material which satisfies the definition of “new information”) under s 473DD cannot be accepted.

36    The appellant accepts that it was not necessary for the Authority to make an express finding that the new material is “new information” as defined in s 473DC(1). Accordingly, the appellant’s criticism that there was “not a word” as to the relevance of the new material can have no significance in relation to the question of whether the Authority performed its task under  473DC(1). I respectfully adopt the reasoning of Logan J in CDZ16 at [10] as follows:

In terms, s 473DC(1) consigns the subject of relevance to the Authority’s evaluative judgement and then only to the extent that the Authority “considers” that the information concerned “may”, not “must”, be relevant. Language of this kind has the effect that it is not for a court on judicial review, much less for this Court in the exercise of appellate jurisdiction, itself to determine whether the information is or is not relevant or even whether it may be relevant. It is enough that a conclusion is reasonably open to the Authority that the information may or, may not, be relevant. …

37    The implicit finding that the new material “may” be relevant to the fast track review was reasonably open to the Authority having regard to the subject matter of the new material. While it was unnecessary, and it may have been inappropriate, for the FCCA Judge to make a finding that the new material was “plainly relevant”, nothing turns on that finding in this appeal.

38    The premise of this ground is that the assessment of whether the new material “may be relevant” under s 473DC(1)(b) is what informs the Authority’s assessment of whether the Authority’s consideration of the “new information” is barred by s 473DD. That premise is wrong, they are separate evaluative judgments:

(1)    The assessment required under s 473DC(1)(b) is not a demanding one: the Authority must decide at this stage whether the new material “may” have relevance to the fast track review. The question of relevance under s 473DC(1)(b) does not, as suggested by counsel for the appellant, require a detailed assessment of the material before the Authority to determine whether the information is sufficient to allow identification of whether exceptional circumstances exist under s 473DD(a) or whether s 473DD(b)(ii) is satisfied. I accept the Minister’s submission that, at this level, s 473DC(1) operates in favour of applicants for a visa to catch any material that was not before the delegate which might have relevance to the review of their claims by the Authority. The standard suggested by the appellant would be too exacting to perform that function.

(2)    The assessment under s 473DD is a further filter. At this stage, the Authority must only decide if it should receive the “new information” (that is, information which satisfies s 437DC) on the basis that there are extraordinary circumstances justifying its consideration and (if s 473DD(b)(ii) is relevant) it is open to be or capable of being accepted as truthful or accurate, or genuine. It is only at the final, deliberative stage, of its review that the Authority will be required to determine whether or not the “new information” is true: see CSR16 at [41]-[42]. It is this assessment under s 473DD penultimate to the deliberative stage in relation to whether or not the Authority will affirm the delegate’s decision to which DYS16 at [17], CSR16 at [37] and [41], and BVZ16 at [9] relate.

39    The Authority did not fall into jurisdictional error at the step of its reasoning concerning whether the new material was “new information” as defined in s 473DC(1), and accordingly ground 1b of the appeal is not made out.

Scope of section 473DD Ground

40    The appellant submitted that the Authority (at DR[5]) disregarded the appellant’s “alleged” new claim, and the question is whether the Migration Act authorised a new claim to be disregarded. He says that s 473DD speaks only of “new information”, not “new claims”. He says that there is no warrant in s 473DD to entirely exclude from consideration that part of his claim based upon his imputed political opinion as a failed asylum seeker who was also a witness to killing of those incarcerated with him.

41    The appellant accepted that, in CVK16 v Minister for Immigration and Border Protection [2017] FCA 1434; 257 FCR 297 (CVK16), McKerracher J found that “new information” in s 473DD extended to a “new claim”. CVK16 was an appeal from Driver J’s decision in CVK16 v Minister for Immigration Border Protection [2017] FCCA 235 on which the FCCA Judge in AYK17’s case relied.

42    Although the High Court refused special leave to appeal McKerracher J’s decision in CVK16 (see CVK16 v Minister for Immigration and Border Protection [2018] HCASL 47), the appellant says that the reasons for adopting the construction of s 473DD relied on in CVK16 at [50]-[51] are inconsistent with the High Court’s decision in Plaintiff M174/2016 at [17] where Gageler, Keane and Nettle JJ said:

Notwithstanding the inability of the Authority to set aside a fast track reviewable decision and to substitute its own decision, the Authority when conducting a review of a fast track reviewable decision is not concerned with the correction of error on the part of the Minister or delegate but is engaged in a de novo consideration of the merits of the decision that has been referred to it. The task of the Authority under s 473CC(1) is to consider the application for a protection visa afresh and to determine for itself whether or not it is satisfied that the criteria for the grant of the visa have been met. The powers conferred on the Authority by s 473CC(2) then enable the Authority to make orders appropriate to give effect to the outcome of its own determination of the merits. If the Authority is not satisfied that the criteria for the grant of the visa have been met, the appropriate order for the Authority to make is to affirm the decision under review. If the Authority is so satisfied, and the Authority has found no other statutory impediment to the grant of the visa, the appropriate order for the Authority to make is to remit the decision for reconsideration by the Minister in accordance with such permissible directions or recommendations as the Authority considers are appropriate to give effect to the Authority's determination.

The appellant says that, accordingly, CVK16 is clearly wrong and should not be followed.

43    Further, the appellant says that the result in CVK16 – in rejecting the appellant’s submission at [49] – is inconsistent with the reasoning of the Full Court in Minister for Immigration and Border Protection v CLV16 [2018] FCAFC 80; 260 FCR 482 (CLV16) at [35]:

The Authority, it is concluded, is not precluded by ss 473DC and 473DD from entertaining a “submission” directed to such matters as:

·    the information already made available to the Authority and the consequences which it is “submitted” should flow from that already established pool of factual information; or

·    the reasons why “new information” should be considered, including a “submission” as to why such “new information” satisfies the criteria in s 473DD.

44    The appellant submitted that the definition of “new information” can only apply to that part of the written submissions to the Authority stating that the appellant had been witness to inmates who were killed during incarceration as it is the only part of the written submissions which is capable of meeting the description of a communication about a particular “fact, subject or event”. The appellant submitted that that is different to what he asserts was the written submission’s argument that his claim for protection should be assessed on the basis of his imputed political opinion as a failed asylum seeker who was a witness to such killings. The appellant says that there was no warrant in the terms of s 473DD to exclude entirely from consideration that part of his claim invoking protection obligations on that basis. It is clear from DR[5] and DR[32] of the Authority’s decision record that that claim was not considered. The force of the appellant’s submissions is that, even if the information most relevant to that assessment had been excluded under s 473DD, the claim should have been assessed and the failure to do so was a jurisdictional error.

45    The appellant says that it is not clear from J[24]-[25] that the FCCA Judge grappled with the appellant’s submissions on this ground. Further, he says that the FCCA Judge’s reasoning fails to disclose properly a rationale for rejecting the construction of s 473DC advanced in that Court. The appellant says that the reasons only repeat that what the Authority did was “patent” in “taking into account” the “alleged” new information but it failed to deal with the appellant’s submission that the relevant provision only applies to information and not substantive grounds or submissions.

Consideration

46    In CVK16 at [49]-[53], McKerracher J said:

49    The narrow point for the appellant is that:

(a)    there is no impediment on the Authority considering new claims based on the same existing information; and

(b)    if a new claim on the same information is put before it, it should consider it.

50    Such a submission for the appellant might well have force in a different forum and thus does give pause for consideration. In courts of law, if all the same information or evidence is relied upon before the reviewing court and there is otherwise no prejudice, a different legal consequence could be advanced and considered. However, the Migration Act dictates a limited function of the Authority. As the primary judge observed (at [44]), if such a submission were accepted, it would disregard what is plainly Parliament’s intended interpretation of s 473DC and s 473DD. In my view, it is plain that Parliament’s intention in enacting these provisions was to restrict applicants to material put before the delegate, save in exceptional circumstances. The provisions must be read in their context. That context includes these factors:

(a)    The Authority does not stand in the shoes of the original decision maker in the same way as the AAT. It cannot substitute its own decision; it can only affirm the decision or remit the case for further consideration.

(b)    The Authority’s function is not to deal with the applications for review but to review adverse decisions referred to it by the Department.

51    In my view, given the limited statutory role of the Authority, the reasons of the Federal Circuit Court were correct. The Explanatory Memorandum, if it were necessary, puts the matter beyond doubt.

52    The Minister makes a further point that, even if there was jurisdictional error in failing to take into account the new claim, to remit it would be pointless as the existing information could not possibly support the new claim. Implicitly, the appellant tends to accept this would be so. However, he argues that the difference is that the Authority does have the power to seek additional information in relation to the claim, should it wish to do so. Therefore, it cannot be said that it would be futile to remit it to the Authority if there has been jurisdictional error because it is possible that the Authority may choose to get new information, especially if the claim has merit. However, having rejected the appellant’s interpretation of the statutory provisions, his application must fail.

CONCLUSION

53    The new claim did involve ‘new information’ and therefore the statutory prohibition against receiving ‘new information’ also applies to the appellant’s new claim. It pertained to a different fear.

47    It may be accepted that, insofar as McKerracher J’s reasoning in CVK16 at [50]-[51] was based on the limited statutory role of the Authority taken with the finding that the Authority did not stand in the shoes of the delegate, that reasoning is inconsistent with the High Court’s finding in Plaintiff M174/2016 at [17] that the Authority conducts a de novo review. It may also be accepted that if the matter to be decided in CVK16 was accurately described at [49] of that decision (as potentially involving a different claim based on no “new information”), the outcome would be inconsistent with CLV16 at [35].

48    However, the claim in CVK16 was more accurately described at [62]: the new claim involved “new information” and therefore the statutory prohibition against receiving “new information” also applied to CVK16’s new claim. That reasoning is consistent with the Full Court’s reasoning in CLV16 at [35] and on the rationale explained at [54]:

The expression “new information” as defined in s 473DC(1), it is concluded, seeks to identify the sources whereby new factual material is sought to be placed before the Authority. To expose the Authority to the prospect of receiving an ever-changing or continually emerging factual account of the claims for protection being advanced would run counter to the legislative objective of “fast track” decision-making. But there remains no clearly expressed legislative intent to deny to a claimant the ability to place before the Authority – and to have the Authority in fact consider – a submission directed to an established pool of factual information.

49    Having regard to the reasoning of the Full Court in CLV16, McKerracher J’s decision in CVK16 at [62] is not clearly wrong; indeed, in my view it is not wrong. Having regard to the reasoning of Gageler, Keane and Nettle JJ in Plaintiff M174/2016 at [17] and the Full Court in CLV16, I accept that if the new material had comprised a claim which relied only on information which was in the factual pool of information that had been before the delegate, the Authority would have been required to consider that new claim. However, as the authorities currently stand, where a new claim (such as the new material) or an elaboration of an old claim (such as that AYK17 would be imputed political opinion as a failed asylum seeker who was also a witness to killing of those incarcerated with him) relies on “new information” (that is, “knowledge about some particular fact, subject or event” which was not in the factual pool of information which had been before the delegate when the decision to refuse the visa was made), the new claim or the variation of the old claim cannot be considered by the Authority unless both paragraph (a) and one of sub-paragraphs (b)(i) or (ii) of s 473DD have been satisfied. I reject the contention that the claim is severable from the information on which it is based (whether it is an entirely new claim or a variation of an old claim), and I do not find any erroneous conflation in the Authority’s usage of “claim” and “information” in relation to the new material in DR[5].

50    Ground 1a of the appeal is not made out. In light of this finding and the reasons for it, the Court sees little utility in leave being given to the appellant to rely on the proposed ground 2. The FCCA Judge correctly identified ground 1b of the review application at J[22]. The FCCA Judge recognised that there was no claim that the new material did not contain “new information”, albeit that it was framed as a claim, and that the Authority recognised (at DR[5]) the new material’s dual nature. While the FCCA Judge’s reasoning is sparse, it does not involve error in his Honour’s finding that there was no bundling by the Authority of the requirements of ss 473DC and 473DD and that this was not a case in which AYK17 alleged error by the Authority under s 473DD.

Proposed ground 3

51    The appellant seeks leave to raise ground 3 on appeal even though it was not explicitly put in the FCCA because he would be substantially prejudiced if he were not allowed to raise it, it involves the application of the law to existing fact without the need for new evidence and, on one view, it is an extension of the existing grounds concerning the scope and application of ss 473DC and 473DD of the Migration Act.

52    The appellant submitted that the importance of the new material was potentially twofold:

(1)    It might have been an additional basis for a claim; or

(2)    It was providing additional information to supplement or amplify the existing claim based upon an imputed political opinion of a failed asylum seeker.

53    The appellant says that s 473DC highlights the statutory importance of the Authority understanding the way in which “new information” ought to be considered as if “it may be relevant” when coming to the exercise of applying s 473DD. The question for the Authority is then whether there are “exceptional circumstances to justify considering the new information” (emphasis added to the statutory language in the submission). The appellant says that language of s 473DD(a) highlights a need for attention to be given to the ways in which new information may be required to be considered or “justified” in being considered even though it is additional or supplemental to the information before the delegate, because of exceptional circumstances. That would require some assessment of the way that the information could inform the Authority’s function of assessing the claims made by the claimant.

54    The appellant submitted that it was not apparent from DR[5] that any specific assessment was made of the relevance or context of the new information (which I take to be the new material) provided in the written submissions to the Authority. The Authority focussed on the lack of explanation. The appellant says that it is not apparent that there was any attempt to ascertain if there were any exceptional circumstances arising from the nature of the information itself in the context of the existing claims to justify considering the information. There was therefore non-compliance with s 473DD(a) in a way that was jurisdictional in nature.

Consideration

55    The Minister submitted, and I accept, that the proposed third ground appears to be put in two ways.

56    The first way is, in fact, an extension of the appellant’s first ground. Put this way, the appellant continues to seek to establish an enlarged operation of the need for satisfaction of “relevance” which the Authority is required to meet under s 473DC(1)(b). For the reasons previously given, the ground understood that way is only a reiteration of the grounds considered above, and I would not be disposed to grant leave to raise it now, as I regard the appellant’s reliance on s 473DC in the manner propounded in the FCCA and on appeal as entirely misconceived.

57    I note that the Minister appeared to submit that the threshold required under s 473DC(1)(b) was that referred to by Bromberg J in CSR16 at [41], [42]. I do not accept that submission for the reasons given at [38] above.

58    The Minister said that the second way in which the ground is put appears to have in mind authorities such as BVZ16 [46]-[47] and Minister for Immigration ad Border Protection v BBS16 [2017] FCAFC 176; 257 FCR 111 (BBS16) at [102]-[112], but the appellant has not explained how those authorities have any application to the reasoning of the Authority in AYK17’s case. While that is true of the appellant’s written submissions following the hearing, in the course of the hearing, counsel for the appellant appeared to focus on the need for the Authority to consider all of the circumstances, including the relevance of s 473DD(b)(ii), in determining whether “exceptional circumstances” exist under s 473DD(a).

59    The Minister submitted that the Authority’s reasoning in AYK17’s case was analogous to that of the Authority in ABC17 v Minister for Immigration and Border Protection [2018] FCA 254 (ABC17) at [6]. The Minister submitted that in ABC17’s case, Allsop CJ at [17] found that there was no misapprehension by the Authority of the meaning of the term “exceptional circumstances” in s 473DD(a) in the circumstances of that case which included a lack of explanation for why the claim concerning ABC17’s family members had not been raised earlier and inconsistency with some aspects of how the hearing was conducted by ABC17 before the delegate and the Authority.

60    I do not accept the Minister’s submission that the Authority’s reasons set out in ABC17 at [6] are analogous to AYK17’s case. It is true that in both cases the appellant did not explain to the Authority why there were exceptional circumstances justifying its consideration of “new information”, in both cases the Authority noted opportunities provided by the delegate to provide all information relevant to their claims and they were both legally represented at the delegate’s interview. The cases are otherwise factually different.

(1)    In ABC17’s case, the Authority noted that the “new information” comprised extracts from an information book of complaints made by members of ABC17’s family to police in Sri Lanka. The extracts post-dated the delegate’s decision but the incidents giving rise to the complaints occurred eight weeks before the delegate made its decision. This demonstrated advertence to s 473DD(b)(i). The Authority accepted that the “new information” may be “credible personal information”, demonstrating advertence to s 473DD(b)(ii). The Authority noted that, contrary to the “new information”, ABC17 told the delegate at the interview that his family had not been threatened since his departure from Sri Lanka.

(2)    In AYK17’s case, at DR[5] the Authority made no express reference to consideration of whether the new material constituted “credible personal information” within s 473DD(b)(ii). The new material was an augmentation of his claims before the delegate (that he had been rounded up and incarcerated), it was not inconsistent with them. I do not accept the Minister’s submission relevant inconsistency arises from AYK17’s failure to respond to the delegate’s invitation to provide all information relevant to his claims.

61    Since the hearing of this matter, the issue which appears to be raised by the second way of understanding the proposed third ground has been considered by the Full Court (constituted by McKerracher, Murphy and Davies JJ) in Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110 (CQW17) and AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111 (AQU17). The principles derived from those cases were usefully distilled by Thawley J in CMY17 v Minister for Immigration and Border Protection [2018] FCA 1333 (CMY17) at [26] as follows:

(1)    The requirements of s 473DD(a) and (b) are cumulative. The Authority is prohibited from considering new information unless it is satisfied of the matters in both paragraph (a) and subparagraph (b)(i) or (ii) or both: CQW17 at [36]; AQU17 at [13].

(2)    The words “exceptional circumstances” are not defined and are to be given their 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: AQU17 at [13].

(3)    What will amount to “exceptional circumstances” is inherently incapable of exhaustive statement and must depend on the particular circumstances of the visa applicant’s case: Plaintiff M174 at [30]; AQU17 at [14]. There may be a combination of factors which, when viewed together, constitute “exceptional circumstances”, or one factor itself may be sufficient for “exceptional circumstances” to exist: AQU17 at [13].

(4)    The Authority’s satisfaction that there are exceptional circumstances (subparagraph (a)) to justify considering the new information extend beyond, but might be contributed to by, the Authority’s satisfaction that the new information:

(a)    could not have been provided to the Minister at the time of the s 65 decision (subparagraph (b)(i)); or

(b)    is credible personal information which had not previously been known (subparagraph (b)(ii)): CQW17 at [48]-[49].

(5)    Whilst it always depends on the particular facts, a failure by the Authority to turn its mind to the matters in subparagraphs (b)(i) and (b)(ii) in determining whether it is satisfied that there are “exceptional circumstances” for the purposes of paragraph (a) may constitute jurisdictional error: CQW17 at [51]-[53]. However, it is a misconception that the matters in (b)(i) and (ii) must, in all cases, be considered by the Authority in deciding whether “exceptional circumstances” exist under (a): AQU17 at [14]. Nor is there a requirement to make an express finding under (b)(i) or (ii) for the purpose of considering whether “exceptional circumstances” exist under (a): AQU17 at [16].

(6)    It is possible that the Authority’s consideration of the existence of exceptional circumstances under paragraph (a) is relevant to its satisfaction as to the matters in paragraph (b), however it would be necessary to identify:

(a)    the circumstances contended to be exceptional; and

(b)    how consideration of such asserted exceptional circumstances might have informed the Authority’s consideration of the matters in (b): CQW17 at [71] [72].

62    The parties were invited to indicate whether they wished to make submissions in relation to the relevance of CQW17, AQU17 and the summary of principles in CMY17 to proposed ground 3. The appellant indicated that he did not wish to make submissions against the proposition that Thawley J properly summarised the relevant principles in CMY17 at [26]; he only wished to say that his factual circumstances are more similar to those in CQW17 (at [53]) rather than those in CMY17. The Minister declined to make any further submissions. In relation to the appellant’s submission, it should be noted that in CQW17, the “new information” related to an event which occurred after the delegate’s decision and so it has little factual parallel with this case.

63    In AYK17’s case, it is clear that the Authority understood the requirements of s 473DD(b), since it adverted to the substance of paragraphs (b)(i) and (b)(ii) in its consideration of whether three media reports should be considered in DR[6] (see [9] above). There is no reference to these matters in its consideration of whether “exceptional circumstances” existed in relation to the new material at DR[5]. In my view there is no basis for a finding that it was implicit that the Authority had regard to s 473DD(b) in its consideration of the new material at DR[5], given the Authority’s approach in DR[6] to expressing why paragraphs (a) and (b) had not been made out. I construe DR[5] on the basis that the Authority considered the issue of whether “exceptional circumstances” existed only by reference to s 473DD(a). I note that that finding may be contrary to what the FCCA Judge said at J[25], however, it appears that the finding at J[25] was unnecessary for his Honour to have made having regard to the submissions referred to in his Honour’s reasons and the submissions made by the appellant to the FCCA which were included in the appeal book. I do not consider that the finding at J[25] was open to the FCCA Judge on a proper construction of the Authority’s reasons.

64    Factors which would be relevant to a decision by the Authority that it did not need to assess the new material against the factors in s 473DD(b)(ii) because it would not assist it in the determination of whether “exceptional circumstances” existed would include:

(1)    The new material was a bare assertion made for the first time in the written submissions to the Authority. There are a myriad of cases that demonstrate that is not “out of the ordinary course, unusual, special or uncommon” for new claims to be made or expanded upon after the delegate has made his or her decision. It might be thought that a bare assertion is exactly the sort of claim that Parliament sought to exclude from consideration by the Authority consistently with the reasoning of the Court in CLV16 at [54] (see [48] above).

(2)    The factual basis of the new material pre-dated the appellant’s departure from Sri Lanka and his failure to raise it earlier required explanation. As noted by the Authority, no explanation was offered for why the new material could not have been put before the delegate; that is in contrast to cases such as BVZ16.

(3)    The requirement to explain why the information had not been put before the delegate and why it was credible personal information which was not previously known and may have affected consideration of AYK17’s claims was set out at [24] of the Practice Direction for Applicants, Representatives and Authorised Representatives. The Practice Direction was included with the letter sent to AYK17 by the Authority advising of the referral of his matter to the Authority. The written submissions were made by a lawyer. The fact that they were made pro bono does not explain why these requirements were not addressed in the written submissions to the Authority.

(4)    As noted by the Authority, AYK17 was legally represented in relation to his application for a SHEV and before the delegate when the delegate asked, a number of times, whether he had provided all information he wished to rely on.

65    Some matters which pointed to why consideration of whether the new information was within s 473DD(b)(ii), and whether it should have been taken into account in an assessment of whether “exceptional circumstances” might exist in order for the Authority to perform its task under s 473DD(a) are:

(1)    Both the delegate and the Authority found AYK17 to be a credible witness. The Authority accepted his claims that he and his younger brother were interrogated and mistreated on several occasions during the period 2007-2010 because his evidence was consistent with country information concerning the treatment of young Tamil males from the north, he gave consistent evidence on the issues and he was able to answer questions put to him by the delegate with more detail: DR[11].

(2)    The Authority was prepared to accept that AYK17’s younger brother had been granted protection in Australia, although there was no evidence of that before the Authority: DR[14].

(3)    The new material augmented factual claims that the Authority accepted.

(4)    The delegate assessed AYK17’s claims against the backdrop of country information comprising Human Rights Watch reports dated in February 2013 and October 2015 which would indicate that AYK17’s claim to have witnessed killings while incarcerated were not inherently implausible. That information was as follows:

More broadly, over the course of the twenty-six year conflict, both the LTTE (including their various affiliates and splinter groups) and the Sri Lankan Government have been accused of committing serious violations of human rights and international humanitarian law. Although the civil conflict officially ended in May 2009, human rights transgressions have continued to plague the former conflict zones in the north, north-west, and east, with Government agencies, pro-government paramilitary groups, and political organisations responsible for, and complicit in, the ongoing violence and political suppression.

…

In spite of these improvements in the overall security situation, Sri Lankan authorities – namely the Sri Lankan Police (SLP) and Criminal Investigation Department (CID), Terrorist Investigation Department (TID) and Special Task Force (STF) – continue to act unlawfully and with impunity, employing tactics which are clear violations of basic human rights, such as arbitrary arrest, torture, enforced disappearances, and custodial killings. Human Rights Watch released a report in October 2015 which details the history of such abuses and provides anecdotal accounts of deaths and ill-treatment in police custody, excessive use of force and torture.

(5)    It is not implausible that being a witness to extrajudicial killing while in incarceration might have a bearing on the appellant’s protection claims.

(6)    It would, therefore, have been open to the Authority to categorise the new information as “credible personal information” on the standard discussed by Bromberg J in CSR16 at [41]-[42] where his Honour said:

41    In my view all that the “credible” element of the s 473DD(b)(ii) criteria requires is the Authority’s satisfaction that the “new information” is information which is open to be or capable of being accepted by the Authority as truthful (or accurate, or genuine). It is only at the deliberative stage of its review that the Authority will be required to determine whether or not the “new information” is true. The s 473DD(b)(ii) criteria is concerned with an earlier or anterior stage of the review directed at whether “new information” should be received by the Authority so that it may be considered at the deliberative stage.

42    The criteria is a filtering mechanism designed to separate information worthy of consideration at the deliberative stage from that which is not. In that context, the word “credible” is used in relation to information, not in the sense that the information is believed, but in the sense that the information is capable of being believed. It is only information that the Authority is satisfied is “evidently not credible” (VEAL v Minister for Immigration and Multicultural Affairs (2005) 225 CLR 88 at [17] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ) that fails to meet the credibility requirement imposed by the s 473DD(b)(ii) criteria.

66    The question of whether it is necessary for the Authority to consider whether new information falls within s 473DD(b)(ii) in making its determination under s 473DD(a) is fact dependent, and it is not always an error for the Authority to make a determination under s 473DD(a) without reference to s 473DD(b).

67    The facts of this case sit somewhere on a spectrum between BVZ16 and ABC17. AYK17 did not provide an explanation for why the new information had not been provided previously and the explanation for the late provision of “new information” provided by BVZ16 was an important factor in White J’s determination that it was necessary for the Authority in BVZ16’s case to take into account whether the new information was “credible personal information” which had a bearing on whether exceptional circumstances existed. In ABC17’s case, the Authority did consider the “new information” to be “credible personal information” but nonetheless found that there were no exceptional circumstances justifying its consideration, among other reasons because ABC17 had given evidence to the delegate which contradicted the “new information”. That was not a factor in AYK17’s case because the new material involves an augmentation of a previous claim which was accepted, not a contradiction of it.

68    It is not for the Court to say what the Authority might have done in AYK17’s case had it taken into account whether the new material was “credible personal information” in informing its decision under s 473DD(a). While it must be accepted that paragraphs (a) and (b) of s 473DD are cumulative and that it is not necessary to consider s 473DD(b) in all cases, the Court finds that, in the circumstances of this case, particularly the findings made by the Authority and the delegate about AYK17’s credibility and its acceptance of his other factual claims, the Authority’s failure to make the assessment under s 473DD(b)(ii) in determining whether “exceptional circumstances” exist under s 473DD(a) constitutes error by the Authority in failing to complete its legislated task.

Conclusion

69    Justice requires that leave should be granted to the appellant to rely on proposed ground 3 and the appeal should be allowed. Order 2 made by the FCCA on 24 October 2017 should be set aside and in lieu thereof, orders should be made setting aside the Authority’s decision dated 3 February 2017 and requiring the Authority (differently constituted) to consider the referral according to law.

70    As the appellant has failed on grounds reflecting the ground considered by the FCCA Judge, it is not appropriate to disturb the order made concerning costs of the proceedings in the FCCA. However, as the appellant has succeeded on the appeal, the first respondent should be required to pay the appellant’s costs of the appeal as agreed or taxed.

Associate:

Dated:    8 July 2019