FEDERAL COURT OF AUSTRALIA
IMMIGRATION ASSESSMENT AUTHORITY
DATE OF ORDER:
THE COURT ORDERS THAT:
(a) to apply only to a report prepared jointly by two organisations described as Journalists for Democracy in Sri Lanka and the International Truth and Justice Project (Document);
(b) to claim that the Authority's state of satisfaction about the relevance of the Document was required to be formed reasonably and the Authority failed to conform to that implied statutory requirement because it incorrectly treated the information as not supporting the appellant's claims for protection; and
(c) to claim that when the Authority embarked upon the task of forming the required state of satisfaction it was not properly informed about what was required by the applicable statutory provisions and thereby failed to perform its statutory duty.
2. The appeal be dismissed.
3. The appellant do pay the first respondent's costs to be assessed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
1 The appellant seeks protection on the basis of claims that either he is a refugee to whom Australia owes protection obligations or there is a real risk that he will suffer significant harm if returned to Sri Lanka. His application for a form of temporary protection visa known as a safe haven enterprise visa was refused by a delegate of the Minister in January 2018. The decision not to grant the appellant a visa was affirmed by the Immigration Assessment Authority on 10 September 2018 and an application was brought in the Federal Circuit Court to review the Authority's decision on the basis of alleged jurisdictional error. The application was unsuccessful. The appellant now brings an appeal in this Court. He seeks to raise new claims of jurisdictional error that were not argued before the primary judge. He needs leave to do so. The Minister opposes leave.
2 For the following reasons, leave should be granted to raise one of the new grounds, but the appeal should be dismissed.
A document about Brigadier Priyanka Fernando
3 Before the Authority made its decision, lawyers acting for the appellant made a submission to the Authority to the effect that the Authority should receive some new material that was not before the Minister's delegate. In particular, it asked the Authority to receive a letter and a report prepared jointly by two organisations described as Journalists for Democracy in Sri Lanka and the International Truth and Justice Project (Document). The letter was from two members of the Parliament of the United Kingdom and was addressed to the House of Commons. It raised concerns based upon the contents of the Document but did not add to those contents. The Document was dated 5 February 2018. Relevantly for present purposes, the Document reported on an event that occurred on 4 February 2018 outside the Sri Lankan High Commission in London.
4 The Document said that Brigadier Priyanka Fernando, a defence attaché to the High Commission, had gestured to a crowd of chanting Tamil protestors in a manner that was deliberate and intended to inspire fear. The gesture, made three times, by the Brigadier in Sri Lankan military dress, indicated a slitting of the throat. It was said in the Document that the gesture should be understood in a context where members of the Sri Lankan military have been accused of war crimes that in some instances involved the slitting of throats of bound Tamil detainees.
5 The Document also stated that the gesture was to be understood in the following circumstance:
… photographs of Tamil protestors abroad are routinely the subject of questions during interrogations and torture in Sri Lanka itself. In addition, the context of Brigadier Fernando's record in frontline combat positions in 2008 and 2009, needs to be factored in.
6 The reference to frontline combat concerned the Civil War in Sri Lanka between government forces and Tamil separatists.
7 The claims made by the appellant in support of his visa application concerned his alleged detention and interrogation by the Sri Lankan Army in the course of the Civil War. He claimed to have been harassed and beaten. He said that he was suspected of being a member of the Liberation Tamil Tigers of Eelam (LTTE), a separatist group involved in the Civil War. He said the suspicion arose particularly because he had given his brother-in-law, who was suspected of being an LTTE member, a proper funeral. The funeral was in August 2008. After the funeral he said he was harassed by government authorities, including members of the Army, and was fearful for his safety. After that he fled to Malaysia where he was granted refugee status. In 2012, he travelled to Indonesia and then to Australia. As a result of these matters, he says that he would be suspected of being associated with the LTTE and he fears being detained and tortured and killed if he is returned to Sri Lanka.
8 It can be seen that the appellant's claims do not depend upon any particular connection with Brigadier Fernando or any interest he may have in the appellant. There is no suggestion that Brigadier Fernando was involved in any of the events upon which he relies for his claim. Nor do the appellant's claims depend upon any particular role or influence that Brigadier Fernando may have as to how he will be treated upon arrival in Sri Lanka if he was to be returned as a failed asylum seeker.
The submission to the Authority about the Document
9 The solicitors for the appellant submitted to the Authority that he would be persecuted if he was returned to Sri Lanka involuntarily as a failed asylum seeker. In support of that submission they said, amongst other things, that the current Sri Lankan government has openly admitted that it believes that the LTTE is regrouping overseas and because of that the appellant believed that he would be detained at the airport and there was a real chance that he would face serious harm. The submission then said that the appellant's fear 'is further exacerbated' by the matters stated in the Document concerning Brigadier Fernando.
10 In context, the appellant's submissions were advancing a point concerning recent evidence about government attitudes concerning Tamils returning to Sri Lanka and the possible consequences for a person like the appellant. It was a contention that government concerns about the LTTE regrouping overseas would be reflected in the appellant's treatment and that was a view that was exacerbated by (meaning, it would seem, increased by) the matters the subject of the Document. It was a claim that the matters in the Document supported the claim concerning current Sri Lankan government attitudes to Tamils returning to Sri Lanka who were considered to have LTTE sympathies.
11 Significantly, there was no submission as to why Brigadier Fernando's actions were said to indicate a general view of the Sri Lankan government to returning asylum seekers whose claims had not been accepted. The relevance of the material for the particular claims made by the appellant was not explained beyond the statement that it exacerbated his fears. Put in that way, there needed to be some other foundation for his fears that was accepted by the Authority which could then be supported by or reflected in the actions of the Brigadier.
12 Nevertheless, it was submitted for the appellant, without further particularity, that the actions of Brigadier Fernando were 'obviously a matter of great relevance to the appellant's case' and the new information was 'clearly exceptional'.
The power of the Authority to receive new information
13 Section 473DC of the Migration Act 1958 (Cth) confers a discretion upon the Authority to get new information being any documents or information that was not before the Minister that the Authority considers may be relevant. Section 473DD then curtails the extent to which the Authority may consider new information. It prohibits the Authority from considering any new information unless two requirements are met. They are both requirements that depend upon the satisfaction of the Authority. First, the Authority must be satisfied that there are exceptional circumstances to justify considering the new information: s 477DD(a). Second, the applicant must have satisfied the Authority that (i) the new information was not available before the Minister made the decision on the application or (ii) the new information is credible personal information not previously known and had it been known it may have affected the consideration of the applicant's claims: s 477DD(b). As to the second requirement, there is no issue in the appeal about the Document not being available at the time the delegate of the Minister refused the appellant's application. For the appellant, the issue in the appeal was framed as being about the satisfaction of the Authority as to whether there were exceptional circumstances or perhaps more generally as to whether the Document should have been considered to be relevant. The significance of the Authority not being satisfied as to exceptional circumstances is that the Authority must conduct its review without considering the information. However, the question of exceptional circumstances only arises if there is new information, namely relevant information that was not before the Minister when the original decision refusing the visa application was made.
14 Section 473DC and s 473DD are within Part 7AA of the Migration Act which requires certain decisions concerning applications for protection visas to be automatically reviewed by the Authority. As such, they are part of a scheme providing for a de novo review on the papers. Except in limited circumstances, the Authority's decision is to be made on the basis of the review material that was before the Minister when the original decision was made: BVD17 v Minister For Immigration and Border Protection  FCAFC 114; (2018) 261 FCR 35 at . The required states of satisfaction for the purposes of s 473DD are to be formed in that context.
15 Further, as noted above, in order to know whether the prohibition on considering new information as expressed in s 473DD applies in a particular case, the Authority must form the required states of satisfaction that give rise to the qualification upon the prohibition. If the formation of the states of satisfaction is informed by a misunderstanding of the statutory provision then that may give rise to jurisdictional error because the result is that s 473DD operates in a manner not contemplated by the legislature. Likewise, a failure by the Authority to turn its mind to whether the required states of satisfaction were met in a particular case where new information was sought to be advanced by a visa applicant may give rise to jurisdictional error. In that event there would be no proper basis for determining whether s 473DD applied.
16 In forming a view as to whether it is satisfied that there are exceptional circumstances the Authority undertakes an evaluative judgment: Plaintiff M174/2016 v Minister for Immigration and Border Protection  HCA 16 at . To be exceptional 'a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered': Plaintiff M174/2016 at  citing R v Kelly  QB 198 at 208, quoted in BVZ16 v Minister for Immigration and Border Protection  FCA 958; (2017) 254 FCR 221 at . The application of the provision in decisions of this Court was recently summarised by Thawley J in CMY17 v Minister for Immigration and Border Protection  FCA 1333 at  as follows (citations omitted):
(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.
(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.
(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. 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.
(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 … could not have been provided to the Minister at the time of the s 65 decision (subparagraph (b)(i)); or … is credible personal information which had not previously been known (subparagraph (b)(ii)).
(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. 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). 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).
(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).
The Authority's decision about the Document
17 In order for s 473DD to apply to a review being conducted by the Authority, there must first be the contemplated exercise by the Authority of the discretionary power to get new information. The discretionary nature of the power is reflected in the terms of s 473DF(1)(a) which contemplates that the visa applicant may be invited under s 473DC to give new information in writing or at an interview. If there is no such invitation then the Authority must make its decision based on the material provided to the Authority by the Secretary: s 473DB.
18 In this case, the Authority sent a notification to the appellant that his application for a visa had been referred to the Authority for review. Materially for present purposes, the notification stated:
The Department … has provided us with all documents they consider relevant to your case. This includes any material that you provided to the departmental officer before they decided to refuse you a protection visa. The [Authority] will proceed to make a decision on your case on the basis of the information sent to us by the department, unless we decide to consider new information. We can only consider new information in limited circumstances, which are explained in the attached factsheet and Practice Direction.
19 There is no evidence to suggest that the Document was submitted in response to an invitation to the appellant to submit new information of that kind. Rather, it appears that the submission referring to the Document was sent to the Authority as a request for its consideration as new information. Accordingly, there were two matters for the Authority to consider. First, whether it would exercise its discretion to 'get' the Document as new information. Second whether it was satisfied as to the matters specified in s 473DD such that the prohibition on the consideration of the information did not apply. These matters did not need to be considered in that order because there would be no point in the Authority receiving the Document if it was not satisfied as to the matters stated in s 473DD that had to be met before it could consider the information.
20 In effect, one of the matters that could be relevant to the discretion to be exercised under s 473DC was whether it would be possible for the new information to be considered if it was obtained by the Authority. In that regard, I note that the determination as to whether there are exceptional circumstances invites a consideration of all circumstances that bear upon whether the new information is out of the ordinary: Minister for Immigration and Border Protection v BBS16  FCAFC 176; (2017) 257 FCR 111 at  (Kenny, Tracey and Griffiths JJ). The credibility of information may be considered as part of the process of evaluating whether there are exceptional circumstances: DLB17 v Minister for Home Affairs  FCAFC 230 at  (McKerracher, Barker and Banks-Smith JJ). Likewise, the degree of relevance. No doubt it is commonplace for there to be a considerable amount of information that was not before the Minister including information as to subsequent events that may have some degree of relevance to the claims raised by the visa applicant. As the Authority must be satisfied that the circumstances are exceptional, the degree of relevance of the new information is a matter that may bear upon whether the Authority reaches the requisite state of satisfaction.
21 Importantly, new information must be information that was not before the Minister when the original decision was made and must be information that the Authority considers may be relevant: see s 473DC(1)(b). So, possible relevance of the information for the purpose of enlivening the discretion to get the information was a matter to be adjudged by the Authority. The Authority was both the repository of the fact-finding task for the purpose of determining whether information was relevant (and therefore new information) as well as for reaching the required state of satisfaction as to whether there were exceptional circumstances.
22 The Authority referred to the Document as a 'report'. It reasoned as follows concerning the Document (para 12):
The submission states that the report is very new information that could not have been provided before the decision, and that the applicant's fears of detention at the airport for being a Tamil and a returning asylum seeker have been exacerbated by the recent actions of Brigadier Fernando, which are described in the report. The report is that the Brigadier, a Sri Lankan Army officer posted to London, made a throat slitting gesture to Tamil protesters outside the Sri Lankan High Commission in London, and goes on to discuss the Sri Lankan vetting process for public and security officers, and to provide a career history for the Brigadier. Although both documents post-date the delegate's decision, and therefore could not have been provided prior to the decision, it is not apparent how the letter and country information report otherwise support the applicant's claims for protection. I am not satisfied there are exceptional circumstances to justify considering the information.
23 The logic of the Authority's reasoning involved a number of aspects. First, it recognised that the Document could not have been provided before the decision. Second, it summarised the main aspects of the Document. Third, it accurately described the submission made for the appellant about the relevance of the Document as being that the appellant's fears about returning to Sri Lanka have been exacerbated by the recent actions of Brigadier Fernando. Fourth, it concluded that it is not apparent how the Document 'otherwise' supports the claim for protection. In context, this appears to be a statement that it is not apparent how the Document supports the appellant's claim beyond exacerbating his fear of harm as a Tamil and returning asylum seeker if his protection visa application is refused. Fifth, it concluded by stating that the Authority reviewer was not satisfied that there were exceptional circumstances without separately alluding to the basis for reaching that state of satisfaction.
24 So, it appears that the decision not to receive the Document as new information rested upon a view that its only relevance was that the matters in the Document exacerbated the fears of the appellant and, it would seem, that was viewed either as not being relevant or as not being sufficiently relevant. Information that was not relevant at all was not new information (and therefore there was no need to consider whether there were exceptional circumstances). Information that the Authority considered to be insufficiently relevant to enable it to be satisfied that there were exceptional circumstances to justify its consideration could not be considered by the Authority.
25 It is not entirely clear whether both of those two alternatives provided the foundation for the reasoning by the Authority. What is clear is that the Authority at least formed the view that the Document had no apparent relevance beyond exacerbating the appellant's personal fears and for that reason it was not sufficiently relevant for the Authority to be satisfied that there were exceptional circumstances justifying the consideration of the information in the Document. That position is clear because relevance is the only matter adverted to in the reasons given by the Authority for not considering the Document.
The grounds of appeal
26 The appeal was commenced on the basis of alleged error by the primary judge in not upholding grounds of review advanced in the Federal Circuit Court. However, shortly prior to the hearing of the appeal, solicitors were appointed to act for the appellant and new grounds and submissions in support of those grounds were prepared. They concerned only the approach of the Authority in refusing to receive the Document (and letter) as new information.
27 The first ground was a claim that the Authority erred when it considered that it was not apparent that the Document (and letter) otherwise support the appellant's claims to protection and there were no exceptional circumstances. Although the written ground was formulated by reference to the conclusion of the Authority as to whether there was apparent relevance of the letter and the Document, the oral argument in support of the appeal was confined to the significance of the content of the Document and I approach the ground accordingly.
28 Taken literally, the proposed new ground is neither a ground of appeal nor a ground of review for jurisdictional error. However, the ground as developed in the course of oral argument had two aspects. First, it was said that the state of satisfaction about the relevance of the Document was required to be formed reasonably and the Authority failed to conform to that implied statutory requirement because it incorrectly treated the information as not supporting the appellant's claims for protection. Second, when the Authority embarked upon the task of forming the required state of satisfaction it was not properly informed about what was required by the applicable statutory provisions and thereby failed to perform its statutory duty. It was contended that the reasoning by the Authority revealed a misunderstanding of what was required and therefore the required state of satisfaction had not been formed. These were grounds that it was submitted should be upheld on the basis of constructive error in the decision by the primary judge (that is, even though they had not been raised before the primary judge).
29 The second ground was a claim, in effect, that the error in not considering the Document was material because it could be relevant to the appellant's claims for protection. This was not so much a ground of appeal as a claim that there was sufficient materiality to meet the requirements of Minister for Immigration and Border Protection v SZMTA  HCA 3 at -, - (Bell, Gageler and Keane JJ). So much was accepted in the course of oral argument. Materiality was put in issue by the Minister. However, it is a matter that need only be considered if leave is given and the matters raised by the first ground are otherwise upheld.
Leave to appeal
30 Recently, I summarised the matters to be considered when there is an application to raise a new review ground in an appeal against a decision by the Federal Circuit Court refusing an application for review of an administrative decision refusing an application for a protection visa: CHZ19 v Minister for Home Affairs  FCA 914 at -. Having regard to those principles, I am persuaded that leave should be granted in this case. The following matters are significant. The appellant appeared in person in the Federal Circuit Court. Until recently he was unassisted by lawyers in the conduct of his appeal. The subject matter of the appeal given the consequences contended for by the appellant if he was to be returned to Sri Lanka as a failed asylum seeker raises issues as to his personal safety. The argument to be advanced does not depend upon contested facts. The factual matters to be considered are of narrow compass. There is no suggestion of prejudice to the Minister. On the other hand, the grant of leave will invert the process and will turn the appeal into the primary decision, a matter that is to be guarded against in the public interest. The result will be that the only available avenue of appeal from the decision will be by leave to the High Court. However, these are factors that count more strongly where there has been competent legal representation in the Court below or other reasons to conclude that there has been a comprehensive consideration of available review grounds.
31 The point advanced concerns the extent to which reasoning by the Authority might be reviewable because it was informed by an incorrect view of the apparent relevance of the Document and how it could support the appellant's claim to protection. In effect, it was claimed that the Authority committed a jurisdictional error because it made an incorrect finding as to the relevance of new information and relied upon that finding when concluding that there were no exceptional circumstances to justify considering the new information. It is a point which concerns the extent to which the Authority's view as to the relevance of material said to be new information may give rise to jurisdictional error. It has sufficient merit to justify the grant of leave.
32 However, leave should only be given in respect of the matters raised by ground one as confined by oral argument. Proposed ground two is not a separate ground of review and anticipates a response to the first ground.
Alleged unreasonableness in formation of satisfaction as to exceptional circumstances
33 For reasons I have given, it was appropriate for the Authority to form a state of satisfaction as to whether there were exceptional circumstances by reference to its view as to the relevance of the Document. It was also for the Authority to form a view as to whether it considered the Document to be relevant. It could do so for the purpose of applying the terms of s 473DD to the new information upon which the appellant sought to rely, namely the Document. It could also do so for the purpose of deciding whether it was satisfied that the Document may be relevant. Further, it may be accepted that there was an implied standard of reasonableness that applied to the formation of those views.
34 There are recent authorities concerned with the review of the reasonableness of the exercise of a statutory discretionary power. However, it is a principle that is not confined to the exercise of discretionary powers. Subject to any other express provision, it is an implied condition of the conferral of all statutory power that it be exercised within the bounds of reasonableness: Minister for Immigration and Border Protection v SZVFW  HCA 30 at  (Gageler J),  (Nettle and Gordon JJ),  (Edelman J), (compare Kiefel CJ at ).
35 However, it is significant that an evaluation by the Authority for the purposes of s 473DD as to whether there were exceptional circumstances to justify the consideration of particular new information as part of the review process required by Part 7AA was not made for the purposes of the exercise of a statutory discretion. Nor was an evaluation as to whether the Document may be relevant for the purposes of s 473DC. Rather, in each case, the task was undertaken by the Authority under provisions that made the extent of its authority to consider new information dependent upon its assessment of those matters. As the statutory evaluations were made to mark out the boundaries within which the Authority has a discretion to receive new information (rather than to describe the nature of the discretion to be exercised), a determination by a Court on review as to whether the reasonableness standard was met does not need to allow for the range of value judgments inherent in the exercise of a discretion. Rather, the question is whether a reasonable Authority entrusted with the type of review power conferred under Part 7AA could reasonably conclude, based on the available material in the present case, that the Document may not be relevant (s 473DC) or it had insufficient apparent relevance to cause the Authority to be satisfied that there were exceptional circumstances justifying the consideration of the Document (s 473DD).
36 It was submitted for the Minister that the appropriate characterisation of any legal error in determining whether there were exceptional circumstances was not legal unreasonableness. Reference was made to the decision of Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu  HCA 21; (1999) 197 CLR 611 at - where his Honour drew a distinction between the attack on an exercise of discretionary power and instances where the legislature has made some fact or event a condition upon which the existence of the jurisdiction of a repository of decision-making power depends. The manner in which such authorities might apply to a limitation upon power were considered in Tsvetnenko v United States of America  FCAFC 74 at - (Besanko, Banks-Smith and Colvin JJ). Facts or events which condition the exercise of power are sometimes referred to as jurisdictional facts or pre-conditions to power. The states of satisfaction required to be formed for the purposes of s 473DD are neither part of the exercise of a discretionary power nor a pre-condition to the existence of power. Rather, they operate to mark out the boundaries of a statutory prohibition on considering particular information in the exercise of the power undoubtedly entrusted to the Authority.
37 It is a question of statutory construction as to whether there is a pre-condition to the exercise of power, compliance with which (or the extent of which) the decision-maker is unable to authoritatively determine. In this case, it is the Authority that is expressly entrusted with the formation of the states of satisfaction which then operate to make out the extent of application of the prohibition on consideration of new information expressed in s 473DD. Nevertheless, for reasons I have given, the state of satisfaction must still be formed reasonably and the Court may be invited to consider whether the requirement of the statutory provision has been met. The significant point is that s 473DD does not confer a discretion. It requires a reasonable state of satisfaction to be formed. To that extent, care must be taken in simply applying cases concerned with the extent of review for jurisdictional error where a discretionary power is alleged to have been exercised unreasonably and therefore outside the statutory authority conferred upon the repository of the discretionary power.
38 In addition, it is significant that, in this instance, there is no statutory obligation to provide reasons as to the basis for the formation of the state of satisfaction as to whether there are exceptional circumstances: BYA17 v Minister for Immigration and Border Protection  FCAFC 44 at -. The same reasoning applies to any view formed for the purposes of s 473DC as to whether the Authority considers that particular information may not be relevant. The statutory obligation to provide reasons is confined to reasons for the ultimate decision by the Authority whether to affirm or remit: s 473EA.
39 In the absence of reasons, the Court can evaluate whether, in all the circumstances, the state of satisfaction formed by the Authority as to whether there are exceptional circumstances lacks the required characteristic of reasonableness. Further, if reasons are provided then those reasons may be considered. In considering the reasons given it is important to understand that the task is not akin to that undertaken by an appeal court in determining whether there was factual error: Minister for Immigration and Border Protection v Stretton  FCAFC 11; (2016) 237 FCR 1 at  (Allsop CJ, Wigney and Griffiths JJ agreeing). Rather, the question is whether the nature of the reasoning, including any process of fact-finding, means that the required state of satisfaction has been formed unreasonably in the sense that the reasons fail to provide an intelligible justification for the result. It is the overall quality of the decision that is to be adjudged, not each aspect of the reasoning.
40 For present purposes, recognising that the unreasonableness alleged in this case was not a claim of an unreasonable exercise of a discretionary power, the following aspects (summarised in Vo v Minister for Home Affairs  FCAFC 108 at ) appear to be applicable:
(1) the test for unreasonableness is stringent and extremely confined: SZVFW at , , ;
(2) where reasons have been provided then the reasons are the focal point for assessing whether the decision was unreasonable: Minister for Immigration and Border Protection v Singh  FCAFC 1; (2014) 231 FCR 437 at -;
(3) a decision (not just a part of a decision) which lacks an evident and intelligible justification is unreasonable: SZVFW at , ;
(4) there must be an error that is so grave both as to its nature and the significance of its subject matter that it results in a decision that has been reasoned in a manner that it is not authorised: Hossain v Minister for Immigration and Border Protection  HCA 34 at , -.
41 Having regard to these principles, I am not persuaded that the formation by the Authority of the view that it was not satisfied as to how the Document supported the appellant's claims for protection was unreasonable. Very little was said to explain the relevance of the Document in the submission made to the Authority by the appellant's solicitors. The submission was confined to a statement that the fears of the appellant had been exacerbated by the actions of the Brigadier reported in the Document. It was not explained how the Document provided a foundation for those fears when it came to the risks to the appellant if he was returned to Sri Lanka. There was no suggestion that those matters were connected to the appellant in any way beyond his status as a Tamil who would be returned as a failed asylum seeker if his application for a protection visa was unsuccessful. The Document reported on a single incident by a single person holding a government position without any suggested connection to the appellant. Further, there was no submission as to how the single incident might be sufficiently relevant to cause other country information to be put to one side.
42 Importantly, the Authority otherwise had access to up to date country information that it considered. It decided to receive more recent country information as new information. A DFAT Country Information Report for Sri Lanka dated 23 May 2018 (which post-dated the decision of the Minister's delegate and the incident the subject of the Document) was received by the Authority as new information because it was 'up to date information'. Ultimately, the information in the DFAT report was used extensively in the Authority's decision. The relevance of the Document was to be considered in the context of the nature of the other information before the Authority about the risk to returning Tamils who were failed asylum seekers. The country information in the DFAT reports deals with the circumstances in Sri Lanka having regard to a range of available information. Even though the Authority did not reason expressly by reference to the availability of the DFAT report and the reasons that were given are to be the focal point, the fact that reasons were not required to be given means that it is appropriate to have regard to the overall context in evaluating the reasonableness of the Authority's decision.
43 I note that what was sought in the Federal Circuit Court was a review of the Authority's decision to affirm the original decision refusing the appellant's application for a protection visa. It is by no means clear that a review based upon alleged unreasonableness as to the Authority's overall decision is to be confined to a consideration of the formation of the Authority's state of satisfaction for the purposes of s 473DD or what it considers to be relevant for the purposes of the definition or new information in s 473DC rather than the ultimate decision as to whether to affirm the original decision or remit the matter for further consideration. It was submitted for the appellant that an unreasonable conclusion reached in undertaking the evaluation required by s 473DD would be a jurisdictional error. Reliance was placed upon the reasoning in BBS16 at . However, the reasoning in that case did not rest upon unreasonableness. It was based upon conclusions that the Authority misconceived and misapplied s 473DD (at ) or failed to take into account material provided by the applicant in the case which was an important part of his explanation as to why s 473DD was satisfied (at -).
44 Review for unreasonableness 'concerns the overall character of an administrative decision. Erroneous or illogical reasoning at a particular point in the decision-making process may or may not lead to the conclusion that the decision as a whole fails to conform to the implied statutory standard of reasonableness': Tsvetnenko at . Nevertheless, I assume for present purposes that unreasonableness as to the states of satisfaction to be formed for the purposes of s 473CD or s 473DD would be sufficient to demonstrate jurisdictional error of a kind that would infect the ultimate decision.
45 The submission made for the appellant reduced to a submission that because the Brigadier was so senior and had been given an important overseas government post (and perhaps because his actions had not been condemned by the Sri Lankan government), the expression of such a serious action directed specifically to Tamils made the matter exceptional. However, in the circumstances, the contrary view was not unreasonable in the sense that it was a conclusion so out of bounds that it could not be regarded as a valid exercise of the statutory authority entrusted to the Authority by s 473DC and s 473DD to evaluate the relevance of particular matters for the purposes of applying those provisions to information advanced by the appellant on the basis that it was claimed to be new information that could be considered by the Authority.
46 For those reasons, the first part of ground 1 has not been made out.
Alleged legal error as to the nature of the statutory task
47 It has been held that if the Authority proceeds on the basis of an unduly narrow understanding of the reach of the term exceptional circumstances then that may provide a basis for review for jurisdictional error: BVZ16 at  (White J).
48 For reasons I have given, the Authority was not obliged to give reasons for the views that it formed concerning the relevance of the Document for the purposes of applying s 473DC and s 473DD. To the extent that reasons were provided they revealed that the Authority had considered the relevance of the Document to the claims advanced by the appellant in forming the view that the Document should not be considered as new information. It was not suggested that there was some factor other than relevance that should have been brought to account. It was properly part of the Authority's task to form a view as to the apparent manner in which the Document supported the appellant's claims beyond exacerbating his fears. In other words, the manner in which the Authority expressed its findings concerning the Document did not manifest a misunderstanding of the nature of its statutory task.
49 Therefore, the second part of ground 1 has also not been made out.
50 As the single ground of appeal as developed in the course of oral submissions for which leave has been granted has not succeeded, it follows that the appeal must be dismissed with costs.