FEDERAL COURT OF AUSTRALIA

FBR18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1620

ORDERS

THE COURT ORDERS THAT:

1.    Leave to raise the proposed four new grounds on appeal is refused.

2.    Leave to appeal is refused.

3.    The application is dismissed.

4.    The applicant must pay the first respondent’s costs as agreed or assessed.

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

REASONS FOR JUDGMENT

FARRELL J:

Introduction

1    The applicant (also referred to as FBR18) is a Sri Lankan national of Tamil ethnicity from the Northern Province of Sri Lanka. He arrived in Australia on 29 August 2012 as an unauthorised maritime arrival. He lodged an application for a Safe Haven Enterprise visa (or SHEV) on 22 March 2017. That application was refused by a delegate of the Minister for Home Affairs (now the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs) on 16 March 2018.

2    Pursuant to s 473CA of the Migration Act 1958 (Cth), review of the delegate’s decision was referred to the Immigration Assessment Authority (or IAA) as the delegate’s decision is a fast track reviewable decision within the meaning of Pt 7AA of the Migration Act.

3    The Authority summarised what it understood to be the applicant’s claims in its decision record (or DR) at [13] as follows (as written):

•    He is a Tamil male of Hindu faith from the Northern Province of Sri Lanka

•    The applicant owned and managed a restaurant in [redacted].

•    The applicant complained in 2006 to the Police Officer in Charge (the OIC) that police had been dining at his is restaurant without paying for their meals. After the complaint three police officers took him to the police camp and beat him.

•    In June 2006 Criminal Investigation Division (CID) officers came to his restaurant and took his photograph whilst he was standing next to another Tamil man. Three days after the photograph he read in the paper that the other Tamil man was a member of the Liberation Tigers of Tamil Eelam (LTTE) and he had been killed.

•    In September 2006, with the assistance of a people smuggler the applicant departed Sri Lanka by plane for Malaysia. He worked in Malaysia, lived with friends In Kuala Lumpur and registered with United Nations High Commissioner for Refugees (UNHCR) in 2009.

•    Four or five months after he left Sri Lanka his wife informed him that the police had    come to their house in search of him.

•    He returned to Sri Lanka in October 2009 and later reopened his restaurant.

•    He received anonymous phone calls that threatened to bomb his restaurant if he did not pay a ransom. On account of this extortion he was at risk of being abducted and killed by paramilitary groups. He will be identified because of his scarring.

•    His personal details were released by the Department of Immigration in an online data breach.

•    He departed Sri Lanka illegally.

•    He has sought asylum in Australia.

4    On 27 August 2018, the Authority decided to affirm the delegate’s decision.

5    The applicant filed an application in the Federal Circuit Court of Australia (FCCA) on 28 September 2018 seeking judicial review of the Authority’s decision. The sole ground of the application for judicial review was as follows:

Ground 1 – I believe the decision is affected with legal error

Particulars

1.    More details will be provided once the court book is prepared.

6    The FCCA Judge dismissed the application with costs pursuant to r 44.12 of the Federal Circuit Court Rules 2001 (Cth) (FCCA Rules) following a show cause hearing conducted on 19 April 2019: see FBR18 v Minister for Home Affairs [2019] FCCA 963. The applicant was a litigant in person in those proceedings. The procedural history from the time the applicant filed his application to the FCCA up to the show cause hearing on 19 April 2019 and the reasons for the FCCA Judge’s decision not to adjourn the proceedings on that day to allow the applicant more time to obtain the advice of a lawyer are set out at J[3]-[13]. The FCCA Judge found that the judicial review application did not raise an arguable case: J[25].

Applications for leave

7    The applicant seeks leave to appeal from the FCCA Judge’s decision. Although the applicant was not represented by a lawyer when he filed his application for leave, he obtained legal representation prior to filing written submissions. The applicant’s written submissions were filed on 23 July 2019. The submissions attached an amended application for leave to appeal and draft notice of appeal. The Minister did not object to the filing of an amended application in that form.

8    The applicant also seeks leave to rely on the four new grounds set out in the draft notice of appeal. Those grounds are directed solely to demonstrating jurisdictional error by the Authority. Each of the grounds are set out under their respective headings below.

9    The Minister submitted that both the grant of leave to appeal and the grant of leave to rely on the new grounds should be refused.

10    The Minister correctly submitted that the principles applicable to the exercise of the Court’s discretion to grant leave to appeal are well-established. Generally speaking, the Court will consider whether the judgment from which appeal is sought is attended by sufficient doubt to warrant it being reconsidered on appeal and whether substantial injustice will result if leave is refused, supposing the decision to be wrong. Where, as here, the FCCA Judge was required to determine whether she was satisfied that the application “raised an arguable case for the relief claimed” (r 44.12 of the FCCA Rules) it is necessary for the applicant to identify errors in the primary judge’s decision-making of the kind discussed in House v The King [1936] HCA 40; 55 CLR 499 at 504-505 (Dixon, Evatt and McTiernan JJ): see Samsung Electronics Co Limited v Apple Inc [2013] FCAFC 138 at [17]-[18] (Jacobson, Flick and Griffiths JJ); and SZTRG v Minister for Immigration and Border Protection [2014] FCA 836 at [22]-[23] (Beach J). Greater scrutiny should be given to those interlocutory decisions which go to the ability of a party to advance its case for resolution: United States Tobacco Co v Minister for Consumer Affairs [1988] FCA 213; 20 FCR 520 at 532.

11    The Minister submitted that leave should be refused, but acknowledged that these tests ought not be inflexibly applied and that s 24(1A) of the Federal Court of Australia Act 1976 (Cth) confers on the Court “an unfettered discretion” in “unqualified terms”: see Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCAFC 844; 33 FCR 397 at 399.

12    The applicant made no claim that the FCCA Judge erred in the exercise of the discretion conferred by r 44.12 of the FCCA Rules. The applicant contended that, in determining whether to grant leave to appeal, the Court should consider the merit of the proposed new grounds and the decision should be made by reference to the principles used by the Court in determining whether an extension of time should be granted.

13    The applicant submitted that:

(1)    FBR18 was not legally represented in relation to the application to the FCCA or at the hearing before the FCCA Judge;

(2)    There would be little or no prejudice to the Minister in leave being granted; and

(3)    Each of the four new grounds are reasonably or sufficiently arguable so that they should proceed to a full hearing, it not being appropriate to fully investigate the merits of the substantive case on the question of whether leave should be granted.

14    The Minister submitted that the principles applicable to the exercise of the Court’s discretion whether leave should be granted to raise new grounds on appeal are well-established and summarised in VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 at [46]-[48] (Kiefel, Weinberg and Stone JJ):

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

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

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

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

15    The Minister referred to CGA15 v Minister for Home Affairs [2019] FCAFC 46 at [36] (Murphy, Mortimer and O'Callaghan JJ). At [36]-[37], the Full Court said:

36    There is a particular sensitivity to whether the interests of justice favour a grant of leave in refugee cases, because an adverse decision may have very serious consequences for an appellant: Iyer v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1788 at [22] (Heerey, Moore and Goldberg JJ). The merit of the proposed new ground is an important consideration. As Mortimer J observed in ARK16 v Minister for Immigration and Border Protection [2018] FCA 825 at [25]:

The likely merit of a proposed ground of appeal, in the context of judicial review, will almost invariably be important because it is generally likely in the interests of the administration of justice for this Court to ensure that an administrative decision arguably affected by jurisdictional error is not carried into effect, especially effects which are capable of resulting in a deprivation of liberty, which is the case under the Migration Act for persons who do not hold a valid visa. That is a consequence of upholding and applying the rule of law.

See also SZQBN v Minister for Immigration and Border Protection (2014) 226 FCR 68; [2014] FCA 686 at [55] (Flick J).

37    In NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51; [2005] FCAFC 134 at [166] Madgwick J (with whom Conti J agreed) set out a non-exhaustive list of the considerations relevant to a grant of leave, which have been applied in numerous decisions. One consideration weighing against a grant of leave in the present case is that the appellant did not provide an explanation for the failure to raise the proposed new ground before the Federal Circuit Court. While the fact that the appellant had legal representation below can be seen to weigh against a grant of leave, it is not decisive. A new ground of appeal may be allowed even where the proceedings below have been conducted with legal representation and all that can be said by way of explanation was that its significance may not have been apparent to the appellant’s lawyers in the hearing below: Chan v Minister for Immigration and Border Protection [2018] FCA 1323 at [43] (Yates J).

16    However, the Minister submitted that the overarching principles enunciated by the High Court must be the governing principles and noted:

(1)    The paragraph from Coulton v Holcombe [1986] HCA 33; 162 CLR 1 at 7 (Gibbs CJ and Wilson, Brennan and Dawson JJ with Deane J dissenting) cited in VUAX v Minister for Immigration & Multicultural & Indigenous Affairs at [47] and referred to above at [14]; and

(2)    In University of Wollongong v Metwally (No 2) [1985] HCA 28, the High Court said that except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case has been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.

17    The Minister submitted that the mere fact that the applicant was unrepresented before the FCCA Judge is not, of itself, a sufficient reason to justify a grant of leave to rely on new grounds because self-represented litigants, like others, ought be bound to conduct their case before the primary decision-maker. He submitted that it is significant that the materials before the Court indicate that the applicant may not have promptly taken all reasonable steps to obtain legal advice. First, he noted that on 18 October 2018, the applicant was given the contact details of legal services providers and translating and interpreting services in documents headed in his own language but apparently took no steps thereafter to obtain legal advice until some time after 26 March 2019, when he was notified that the “show cause” hearing would be held on 19 April 2019: see J[12] and [13(iii)]. Second, in his affidavit sworn on 30 July 2019, the applicant gave evidence that he first saw a lawyer on 16 April 2019, but that evidence is problematic in light of his oral submission to the FCCA Judge recorded at J[12] that he consulted a lawyer after he received the letter dated 26 March 2019 notifying him of the “show cause” hearing. The Minister submitted that, together, the evidence strengthens the inference that the applicant did not promptly take all reasonable steps to obtain advice before the hearing in the FCCA on 19 April 2019.

18    In relation to the applicant’s submission that that there is little or no prejudice to the Minister in raising the proposed new grounds, the Minister says that:

(1)    It is well established that the mere absence of prejudice to a respondent is not a sufficient factor to justify the grant of leave (see SZQHK v Minister for Immigration and Citizenship [2012] FCA 178 at [67] (Murphy J)) and it should have neutral weight in this matter.

(2)    The Minister will suffer prejudice if leave is granted to the applicant to run the proposed new grounds for the first time on appeal because the Minister will have no practical right of appeal – as distinct from the ability to apply for special to appeal to the High Court – if the applicant is successful on one of the new grounds and the Minister takes issue with the conclusions reached by this Court. The Minister notes that special leave might not be granted, even if error is identified, where the case is not considered a suitable vehicle to agitate the point: see Han v Minister for Home Affairs [2019] FCA 331 at [20(4)] (Bromwich J).

(3)    Relying on Bromwich J’s comments in Han v Minister for Home Affairs at [8]-[21], the Minister submitted that the “interests of justice” are not automatically to be equated to the “interests of the applicant”. Instead, the Court must have regard to the interests of other litigants and the administration of justice generally in its consideration.

(4)    The administration of justice is adversely affected by raising new grounds on appeal as:

(a)    This Court is denied the considerable benefit to which it is entitled of the reasons and consideration of the FCCA;

(b)    The appeal to this Court would be “in name only”, and would amount to a “de facto trial on an entirely new basis”, threatening the integrity of this Court’s appellate jurisdiction and Parliament’s designation of the FCCA as the primary forum in which cases involving protection visas are to be resolved under the Migration Act; and

(c)    The statutory restrictions on the exercise of this Court’s appellate jurisdiction, being an “important principle in the administration of justice”, is susceptible of being reduced to “a mere formality” where the interests of justice are unduly confined.

19    The Minister says that these submissions assume particular importance in the present case where:

(1)    The applicant was given two separate opportunities to amend his grounds of review in the FCCA and was invited to elaborate on his case before the FCCA Judge at the show cause hearing but did not avail self of any of those opportunities;

(2)    The applicant is required to establish a “House v The King” error. Logically, he cannot do so where the proposed grounds do not engage at all with the FCCA Judge’s findings; and

(3)    Rule 44.13(1) of the FCCA Rules specifically confines an applicant to “the relief sought and the grounds mentioned in the application” at a show cause hearing under r 44.12. Allowing new grounds to be agitated on appeal circumvents this restriction and wholly undermines the rationale for listings of that kind.

20    In the Minister’s written submissions, the Minister accepted that it is often appropriate to give “dominant, but not exclusive, weight to the merit of the proposed ground”, but again noted the comments of Bromwich J in Han v Minister for Home Affairs at [9] that care needs to be taken to ensure that the focus on merit does not have the troubling practical effect that a new ground is effectively heard and determined by this Court in the exercise of its appellate jurisdiction, as though leave was not required.

21    The Minister also submitted that leave should be refused because the applicant offered no reasonable explanation for his failure to raise the proposed new grounds before the FCCA Judge and the prejudice that the Minister would suffer having regard to the limitation on avenues for appeal and the scheme of the Migration Act and the FCCA Rules referred to above.

22    At the hearing, the Minister’s legal representative went so far as to submit that it would be both “appropriate and reasonable” in this case that the Court should make its decision concerning whether leave should be granted to rely on the proposed new grounds without reference to the merit of the new grounds. That submission was made on the primary basis that the applicant concedes that he cannot show that the FCCA Judge made an error in the House v The King sense and he must be able to do that to succeed so that, logically, leave should not be granted even if the proposed new grounds raise a meritorious case.

23    The Minister’s other submissions on the principles to be applied have force in circumstances where, albeit that the applicant was not legally represented in the Court below and that does explain his failure to raise the new grounds in that Court, the evidence suggests that he only took steps to obtain legal advice shortly before the show cause hearing. The FCCA Judge’s reasons at J[3]-[6] demonstrate that opportunities were afforded the applicant to amend his pleadings and provide evidence to support his claims. It was only after the applicant failed to avail himself of those opportunities that the FCCA Judge determined to hold a show cause hearing. Parliament has made it clear that the venue for grounds of judicial review to be raised are the FCCA, not this Court, in relation to decisions concerning the grant of a protection visa. Those factors can be accepted as weighing heavily against leave to raise the new grounds being granted, and the logic based on the need to establish a House v The King error is compelling.

24    However, the oral submission takes matters a step too far.

25    It can be accepted readily that the interests of justice are not narrowly confined to the interests of the applicant. This is especially so having regard to:

(1)    The clear distinction between roles of the FCCA and Federal Court in migration matters of this kind mandated by Parliament under ss 476 and 476A of Migration Act; and

(2)    Having regard to r 44.13(2) of the FCCA Rules which limits the grounds that an applicant can rely on at a final hearing to those specified in the Court’s order to show cause following a hearing under r 44.12. Those FCCA Rules are important in allowing the FCCA to manage efficiently and cost effectively a substantial caseload affecting the rights and interests of litigants before that Court.

26    Nevertheless, if a proposed new ground were to reveal a strong case that the Authority fell into jurisdictional error in its approach to its task, it is plainly in the broader interests of the administration of justice that that error be identified so that it will not be repeated by the Authority, as well as in the interests of the individual applicant whose personal freedom and safety may rely on decision-makers making their decisions in accordance with law.

27    Where a strong case of jurisdictional error by an administrative decision-maker is revealed, the fact that the Minister’s avenues of appeal may be more limited – though not eliminated – may be accorded less weight in determining where the interests of the due administration of justice lay.

28    In the Court’s view it is necessary for it to consider the merit of the proposed new grounds so that it may determine the applications for leave to appeal and leave to raise new grounds. The Minister relied on Bromwich J’s statement in Han v Minister for Home Affairs at [15] that merit alone is generally not enough for the grant of leave, and the weaker the point, the greater the need for other aspects to be favourable, such as the explanation for not taking it below and prejudice to the opposing party. In the balance, the converse is also true: see VUAX v Minister for Immigration & Multicultural & Indigenous Affairs at [48].

29    It appears to be common ground between the parties that the assessment of whether the proposed new grounds of appeal have sufficient merit to justify the grant of leave to appeal must be conducted on a “reasonably impressionistic basis”, without conducting a de facto final hearing. This threshold requires the grounds to be “arguable”, that they be “not fanciful, illogical, impermissible or devoid of merit, but ha[ve] a level of rationality and a basis in the material ... sufficient for the Court to be satisfied it is appropriate to hear full argument”: see CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344 at [5]-[6] (Mortimer J).

Statutory framework

30    Having regard to the proposed new grounds, it is necessary to set out provisions of the statutory framework.

31    Section 473DB(1) of the Migration Act requires the Authority to review a decision referred to it by considering the “review material” (as defined in s 473CB of the Migration Act) which the Secretary provides to it without accepting or requesting new information and without interviewing the referred applicant. There is no contention that that did not occur.

32    Section 473DC of the Migration Act provides that the Authority may get “new information” (as defined in the section) 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.

33    Section 473DD restricts the circumstances in which the Authority is permitted to consider new information as follows:

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.

34    Section 473DE requires the Authority to give certain new information to the applicant as follows:

473DE Certain new information must be given to referred applicant

(1)    The Immigration Assessment Authority must, in relation to a fast track reviewable decision:

(a)    give to the referred applicant particulars of any new information, but only if the new information:

(i)    has been, or is to be, considered by the Authority under section 473DD; and

(ii)    would be the reason, or a part of the reason, for affirming the fast track reviewable decision; and

(b)    explain to the referred applicant why the new information is relevant to the review; and

(c)    invite the referred applicant, orally or in writing, to give comments on the new information:

(i)    in writing; or

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

(2)    The Immigration Assessment Authority may give the particulars mentioned in paragraph (1)(a) in the way that the Authority thinks appropriate in the circumstances.

 (3)    Subsection (1) does not apply to new information that:

(a)    is not specifically about the referred applicant and is just about a class of persons of which the referred applicant is a member; or

(b)    is non-disclosable information; or

(c)    is prescribed by regulation for the purposes of this paragraph.

Information before the Authority

35    Relevantly to the proposed new grounds and the conduct of a review under Div 3 of Pt 7AA of the Migration Act, the Authority said the following at DR[3]-[8] and [12] (footnotes omitted):

3.    I have had regard to the material given by the Secretary under s.473CB of the Act.

4.    I have also considered a new report by the Australian Department of Foreign Affairs and Trade (DFAT) on Sri Lanka published on 23 May 2018. This report contains information on the situation for Sri Lankans who are of Tamil ethnicity, including those who are forced to return to Sri Lanka after failing to obtain asylum. It updates the DFAT report on Sri Lanka that was published on 24 January 2017 which was before, and relied upon by, the delegate. This report has been specifically prepared for the purpose of assisting in the determination of protection obligations. I am satisfied there are exceptional circumstances to justify considering this information.

5.    On 9 April 2018 the IAA received an email from Mr Tambimuttu, the representative for the applicant. The submission refers to some information that was before the delegate. It also contains argument why the applicant does not agree with the delegate's decision. I have had regard to these arguments.

6.    The submission also provides an extract of an unrelated, unpublished Administrative Appeal Tribunal (AAT) decision from 2 March 2018. The submission states that the decision would support the applicant's review matter when applying the real chance test. The submission states that the decision is not publicly available and the representative is unable to provide the decision record in its entirety. He invites the IAA to obtain a copy of the decision. Apart from the fact that it also appears to concern a Sri Lankan asylum seeker, there is no indication of the nature of the claims in that case, or how it relates to the applicant's own circumstances. It is not clear that the IAA even has the power to obtain an unpublished AAT decision in relation to what appears to be an unrelated applicant, but in any event I am not satisfied the circumstances warrant obtaining the document, which is a non-binding decision determined on its own facts. I am also not satisfied that there are exceptional circumstances to justify considering the information.

7.    The submission Mr Tambimuttu states that "it must also be noted that the applicant's father was killed by the army". This is new information. The applicant's SHEV statement indicates that his father is deceased, however the applicant has not previously claimed that his father was killed by the army or raised any claims relating to his father. The submission does not provide any further detail or information, nor does it state when this occurred or the circumstances that led to this event. There is no meaningful detail upon which the claim can be assessed. The applicant was provided an information sheet written in the Tamil language that stated it was his responsibility to raise all his claims for protection. The applicant told the delegate at interview that he had read this information sheet and he understood its contents. He was also warned by the delegate that if he did not present all his claims he may not have another opportunity to do so. His representative that has prepared this submission also assisted the applicant before the Department of Immigration. I am not satisfied that exceptional circumstances exist that justify considering this new claim.

8.    The submission includes a new claim that any "en masse" processing that the applicant may be subjected to upon return to Sri Lanka will potentially put him at risk. That is, if one person comes to the adverse attention of the authorities it will impute other returnees with political opinion. The issue of "en masse" processing was before the delegate and is referred to in Department of Foreign Affairs and Trade (DFAT) report before the delegate (and I have considered this issue below), but the claimed risk of an imputed political opinion was not. I note the applicant was represented by the same migration agent before the delegate and no explanation has been given as to why this claim was not raised then, despite being asked specifically about his fears on return. No other information has been provided to support the claimed risk of harm. I am not satisfied that there are exceptional circumstances to justify considering this new information.

…

12.    On 10 April 2018 the IAA received another email from the applicant's representative that contained two attachments. One of the attachments is a handwritten document in what appears to be Tamil and the other attachment is a typed English translation. The document is dated 2 April 2018 which post-dates the delegate's decision. The document appears to be a letter of complaint from the applicant's wife to the local government officer (Grama Niladhari) and his/her response. The complaint purports that on 3 July 2015 and 22 May 2016 unidentified persons enquired about her husband and the response indicates that the Grama Niladhari had requested the applicant's wife to make a complaint to the police. There has not been a police complaint provided or any indication that one was made. The applicant has not previously claimed that his wife had received enquiries about his whereabouts. There has been no explanation provided to explain why this information was only reported to the Grama Niladhari a few weeks after the delegate's decision and two and three years after the alleged incidents occurred. The applicant was provided an information sheet prior to the SHEV interview in Tamil which stated that it was his responsibility to raise all his claims for protection and provide evidence in support of those claims. I am satisfied that the applicant was given sufficient opportunity to present all of his claims to the delegate. I am not satisfied exceptional circumstances exist to justify considering the information.

First proposed new ground

36    The first proposed new ground was (as written):

The IAA failed to exercise its discretion to invite the Applicant to provide further information or documents, or otherwise to get documents, pursuant to S 473DC of the Migration Act, when the applicant provided post Delegate submissions in respect of which the IAA was not satisfied there were exceptional circumstances that justified considering the new claim or documents or case (paras 7, 6 and 12 of the IAA decision)

Particulars

a.    Reference in Submission dated 9 April 2018: “it must also be noted that the applicant's father was killed by the army” (para 10)

b.    Reference to letter of complaint and response contained in Submission dated 10 April 2018 (para 12)

c.    Reference in Submission dated 9 April 2018 to unpublished AAT decision 2 March 2018;

Such failure amounting to jurisdictional error

Applicant’s submissions

37    In addressing the merits of proposed first new ground, counsel for the applicant submitted that:

(1)    Pursuant to s 473DD of the Migration Act, the Authority did not consider:

(a)    The claim that the applicant’s father was killed by the army;

(b)    The letter of complaint from the applicant’s wife to the Grama Niladhari;

(c)    The unreported AAT decision.

(2)    Section 473DC of the Migration Act provides a discretion to the Authority to get any documents or information.

(3)    Although the 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” (see s 473DC(2)), it must exercise its discretion reasonably: DZUl6 v Minister for Immigration & Anor [2017] FCCA 851 at [120]-[123].

(4)    The Authority ought to have sought further information or documents pursuant to s 473DC before it concluded it could not consider the new information listed at (1) above because that new information could have been relevant to the claim that the application would face persecution if returned to Sri Lanka.

(5)    The Authority failed to act reasonably when it did not consider the excise of that discretion, or failed to act reasonably when it did not exercise that discretion, resulting in jurisdictional error.

Consideration

38    It is well-established that the statutory terms, context, subject matter, scope and purpose of the provisions under which a power is exercised are the central consideration in identifying whether the exercise or failure to exercise a statutory power is affected by legal unreasonableness: see Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [12], [59], [79]-[80], [133], [153].

39    The statutory context of the Authority’s power to “get” “new information” for the purpose of conducting a review is Pt 7AA of the Migration and Div 3 in particular. Under Part 7AA, the Authority is to carry out its functions with the objective of providing a mechanism of limited review that is efficient, quick, free of bias and consistent with Div 3, in which s 473DC falls. The Authority has the power to affirm the decision or to remit it for reconsideration: s 473BA. The regime provides for de novo consideration by the Authority of materials provided to it: Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 at [17] (Gageler, Keane and Nettle JJ).

40    Section 473DB(l)(b) confirms that, subject only to the exemptions set out in ss 473DC, 473DD and 473DE, the Authority must “review” a “fast track reviewable decision” referred to it “without accepting or requesting new information” over and above the “review material” which the Secretary must provide to it under s 473CB(2) at the time of referral or as soon as practical thereafter: see Plaintiff M174/2016 at [22], [87]-[88].

41    “New information” and how it is to be dealt with is the subject of ss 473DC-473DF. The Authority may “get” “new information”. “New information” is information which may be relevant (it must be inferred: to the fast track application) and which was not before the Minister when the decision to refuse the visa under s 65 of the Migration Act was made: s 473DC(1). The Authority is under no duty to exercise this power: s 473DC(2). There is a distinction between the power of the Authority to obtain “new information” under s 473DC and the limitations on its power to consider “new information” which derives from s 473DD.

42    The power to consider new information can only be exercised if the Authority is satisfied that:

    (1)    There are exceptional circumstances which justify considering the “new information” (s 473DD(a)); and

(2)    The “new information” was either not available at the time the delegate’s decision was made (s 473DD(b)(i)) or it is credible personal information which was not previously known and which could have affected the outcome of the review if it had been known (s 473DD(b)(ii)).

43    The Court accepts the Minister’s submissions that:

(1)    Where an applicant asserts that the Authority unreasonably failed to consider exercising its discretion under s 473DC, the applicant must establish the factual foundation upon which it can be inferred that the Authority failed to consider exercising the power: see ASW17 v Minister for Home Affairs [2018] FCA 1815 at [43] (Collier J); DAY16 v Minister for Immigration and Border Protection [2018] FCA 1750 at [16] (Besanko J); CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 at [38] (Thawley J). The applicant’s submissions (written and oral) made no effort to do so.

(2)    The mere fact that “new information”, if accepted, “could have been relevant” to a claim is insufficient to demonstrate that it was legally unreasonable for the Authority not to exercise the power vested in it under s 473DC of the Migration Act to seek to “get” information from the applicant or someone else. The Court notes that, despite invitation to the applicant’s counsel to do so, the applicant did not identify, even in general terms, what information the applicant might have sought.

(3)    The failure to exercise the discretion under s 473DC has been held to be legally unreasonable in circumstances where the Authority has affirmed an adverse decision on a different basis to the delegate, a factor that is not present in this case: see DYK16 v Minister for Immigration and Border Protection [2018] FCAFC 222 at [71] (Collier, Middleton and Rangiah JJ); DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12; 258 FCR 551 at [70] (Reeves, Robertson and Rangiah JJ); Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; 253 FCR 475 at [82] (Robertson, Murphy and Kerr JJ).

(4)    The argument that the Authority failed to consider whether to “get” new information is unlikely to succeed having regard to DR[4] and DR[6]. The text of DR[6] indicates that the Authority did consider getting the full AAT decision from 2 March 2018, an extract of which was given to it by the applicant. DR[6] states that “[i]t is not clear that the IAA even has the power to obtain an unpublished AAT decision in relation to what appears to be an unrelated applicant, but in any event I am not satisfied that the circumstances warrant obtaining the document, which is a non-binding decision determined on its own facts”. DR[4] indicates that the Authority turned its mind to getting necessary information because it got and relied on a new DFAT report.

44    It appears that the applicant had the opportunity to provide all of the “new information” concerning the matters identified in the first proposed new ground at the time his representative gave the submissions to the Authority, together with an explanation of how those materials were relevant to the fast track application, why s 473DD was satisfied and why the information had not been put before the Minister at the time his delegate made the decision under s 65 of the Migration Act to refuse him the visa: see ANO16 v Minister for Immigration and Border Protection [2019] FCA 59 at [35]-[36] (Charlesworth J).

45    With respect, this ground appears to be a complaint that the Authority did not assist the applicant to make a fuller or better case by telling him that what had been provided was inadequate and asking for more information. The Authority had no duty to do so. Absent factors which call for inquiry, such as those referred to in DYK16 v Minister for Immigration and Border Protection at [71]; DGZ16 v Minister for Immigration and Border Protection at [70]; Minister for Immigration and Border Protection v CRY16 at [82], it is difficult to see why it was legally unreasonable for the Authority to fail to ask for more information or to fail to consider whether it should do so having regard to the legislative scheme in which s 473DC sits.

46    This proposed new ground lacks sufficient merit, when taken in balance with the factors referred to at [23] above, to justify its being considered on appeal and leave to raise this ground on appeal should be refused.

Second proposed new ground

47    The second proposed new ground is as follows:

The IAA failed to consider or properly consider a new claim raised in Submissions dated 9 April 2018 that if one person comes to the adverse attention of the authorities upon return to Sri Lanka while being processed “en masse”, it will impute other returnees with political opinion (para 8);

Such failure amounting to jurisdictional error.

Submissions

48    The Court will refer to this as the “imputed opinion new claim”.

49    In relation to the merit of this ground, the applicant submitted that the Authority fell into error because it failed to consider either limb of s 473DD(b) of the Migration Act when finding that it was not satisfied that there were exceptional circumstances to justify its consideration of “new information” with respect to the imputed opinion new claim. Albeit that the requirements in s 473DD(a) and s 473DD(b) are cumulative, the applicant submitted that they may overlap and s 473DD(b)(i) and (ii) involve different considerations which are potentially relevant in considering whether circumstances are “exceptional” for the purposes of s 473DD(a). In making that submission, the applicant relied on BVZ16 v Minister for Immigration and Border [2017] FCA 958; 254 FCR 221 at [9] (White J) and AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111 at [14] (McKerracher, Murphy and Davies JJ).

50    It appears that the fourth proposed new ground seeks to raise the same point in relation to the imputed opinion new claim and other “new information”.

51    The Minister submitted that:

(1)    The ground as framed fails to appreciate the “cumulative” nature of the “new information” test in s 473DD as set out the FCCA Judge’s reasons at J[19]. As ss 473DD(a) and 473DD(b) must both be satisfied before “new information” can be considered by the Authority, it need not consider s 473DD(b) if the Authority properly finds (as here) that s 473DD(a) is not satisfied. Given that the applicant does not appear to submit that the Authority’s assessment of s 473DD(a) miscarried, that is a complete answer to this ground.

(2)    Having regard to the Minister’s submissions to the FCCA (at [47]-[50]) quoted in the FCCA Judge’s reasons at J[19] and in the context of the Authority’s reasons, the Authority properly understood the “need to consider the credibility and probative value of the new information for the purposes of s 473DD” being “a matter relevant to s 473DD(b)(ii) but also relevant more generally to the question of exceptional circumstances” relying on BMP17 v Minister for Home Affairs [2019] FCA 112 at [63]-[66] (Banks-Smith J).

(3)    In any event, the Authority’s reasoning clearly considered both limbs of s 473DD(b):

(a)    As the DFAT report was “before the delegate”, s 473DD(b)(i) could not be met; and

(b)    The Authority’s observation that “[n]o other information has been provided to support the claimed risk of harm” ought properly be understood as a finding that the claim was not “credible personal information” with s 473DD(b)(ii) as the Authority was unable to assess its credibility, and it was not connected to the rest of the applicant’s claims. In that regard, the Minister relied on his written submissions to the FCCA Judge set out at J[19], being [50(c)] and [50(d)].

Consideration

52    It is common ground that the requirements of ss 473DD(a) and (b) are cumulative. They may overlap, but it is a misconception that the Authority must always take into account the factors set out in s 473DD(b). Consideration of the factors in s 473DD(b) may be of assistance to the Authority in performing the task of determining whether exceptional circumstances exist for the purposes of s 473DD(a), as illustrated in BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958; 254 FCR 221 at [9] (White J), CHF16 v Minister for Immigration and Border Protection [2017] FCAFC 192; 257 FCR 148 (Gilmour, Robertson and Kerr JJ) and Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 (Kenny, Tracey and Griffiths JJ). Each case will be different and must be treated on its merits; the matters for the Authority to take into consideration must necessarily vary from case to case: AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111 at [14] (McKerracher, Murphy and Davies JJ).

53    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 [30]. Whether that is so depends upon the particular circumstances and the evaluation of those circumstances is entrusted to the Authority by the requirement that it be satisfied as to the exceptional character of the circumstances. That latter point is important because s 473DD conditions the exception to the prohibition against taking “new information” into consideration on the Authority’s state of satisfaction, not the view of the Court or the application of an objective standard: see AOV18 v Minister for Home Affairs [2018] FCA 1871 at [4]-[5] (Colvin J).

54    The Authority (at DR[8]) noted that the applicant had not raised the imputed opinion new claim when interviewed by the delegate even though the same migration agent who lodged the submission to the Authority represented him at that interview. It also noted that no explanation was given for why that claim was not raised at the interview before the delegate despite the fact that the applicant was asked about his fears on return to Sri Lanka nor was any other information provided to the Authority to support the claimed risk of harm.

55    The applicant’s written submissions on this ground are, with respect, not very helpful. While they accept that ss 473DD(a) and 473DD(b) are cumulative and there are cases where it is unnecessary for the Authority to consider s 473DD(b), they simply quote the Full Court’s decision in AQU17 v Minister for Immigration and Border Protection at [14] without explaining what features of this case suggest that it is necessary to take into account the factors in s 473DD(b) in determining whether “exception circumstances” exist under s 473DD(a).

56    Having said that, contrary to the Minister’s submissions, the force of the ground taken with the applicant’s written submissions is that the Authority should have taken into account the factors in s 473DD(b) when making its assessment under s 473DD(a). Accordingly the Court does not accept the Minister’s submission that the applicant did not appear to submit that the Authority’s assessment of s 473DD(a) miscarried.

57    The Minister’s submission that the information that “en masse” processing took place for returnees to Sri Lanka was in the DFAT report dated 24 January 2017 which was before the delegate at the time of the applicant’s interview (see DR[4] and[8]) with the result that s 473DD(b)(i) was not satisfied is also problematic. As pointed out by the Authority at DR[8], while it was true that the DFAT report containing information about en masse processing was before the delegate, the imputed opinion new claim was not. It is the Minister’s position that that claim was “new information”. Accordingly, the Minister’s submission was not addressed to the new information which was relevant to be assessed under s 473DD(b)(i).

58    Notwithstanding these aspects of the Minister’s submissions, the Court is not satisfied that a ground based on a failure by the Authority to consider s 473DD(b)(i) has sufficient merit to justify its consideration as a new ground on appeal. In the absence of any explanation for why the imputed opinion new claim was not raised before the delegate, there is compelling force to an argument that the Authority had insufficient information before it on the basis of which it could be satisfied that s 473DD(b)(i) had been made out.

59    Turning to s 473DD(b)(ii), the imputed opinion new claim relates to the applicant’s asserted fear of being imputed with anti-government opinion during “en masse” processing. The Minister’s submission that the Authority was not in a position to assess the credibility of that claim raises the question of what the term “credible” means in the phrase “credible personal information” for the purposes of s 473DD(b)(ii).

60    It is useful to note Bromberg J’s discussion of the nature of the phrase “credible personal information” in s 473DD(b)(ii) in CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 at [39]-[43] as follows:

39    To address the competing contentions, it is necessary to properly understand the basis for the Authority’s conclusion that the new information was not “credible personal information”. It was not in contest that the Authority was engaged in a process of assessing the veracity of the “new information”, not on its face, but by reference to “review material” which had been received by the Authority. By that process, the Authority came to an ultimate or final view that the “new information” was not to be believed and therefore not information that could be received for consideration in accordance with s 473DD(b)(ii). The nature of the assessment made by the Authority indicates that the Authority proceeded on the basis that a condition of engagement of s 473DD(b)(ii) is the Authority’s satisfaction that the “new information” is true. That reflects the sense in which the Authority construed the word “credible”.

40    An alternative construction for the use of the word “credible” in the phrase “credible personal information”, is that it has a meaning consistent with the meaning given to the word in a setting somewhat akin to that found in s 473DD(b)(ii), that is, in the expression of one aspect of the natural justice hearing rule. I addressed the meaning of “credible” when used in that context in Gbojueh v Minister for Immigration and Citizenship [2012] FCA 288 at [79], where I said this:

The basic principle is that persons whose interests are likely to be affected must be given the opportunity to deal with any matters relevantly adverse to their interests, which the decision-maker proposes to take into account: VAAD at [56]. That opportunity need only be given in relation to information that Brennan J described in Kioa v West (1985) 159 CLR 550 at 629 as “credible, relevant and significant”. “Credible, relevant and significant”, is to be understood as referring to information which cannot be dismissed from further consideration by the decision-maker before the making of the decision. That is, information which is “evidently not credible, not relevant, or of little or no significance to the decision that is to be made”: VEAL at [17] and see at [20].

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.

43    The Authority determined that the “new information” that the appellants sought to have it consider did not meet the s 473DD(b)(ii) criteria by imposing a higher standard of satisfaction than the criteria requires. The Authority required satisfaction that the “new information” was true when all that the s 473DD(b)(ii) criteria requires is the Authority’s satisfaction that the new information is capable of being believed at the deliberative stage of the Authority’s review. In so doing the Authority misconstrued s 473DD(b)(ii) and misconceived what the exercise of its statutory power entailed. The Authority thereby fell into jurisdictional error: Graham v Minister for Immigration and Border Protection; Te Puia v Minister for Immigration and Border Protection [2017] HCA 33 at [68] (Kiefel CJ, Bell, Gageler, Keane, Nettle, and Gordon JJ); Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at [82] (Gaudron J) and [196] (Gummow and Hayne JJ).

61    Given the threshold for determining whether new information is “credible personal information” in accordance with CSR16 v Minister for Immigration and Border Protection at [42], it appears to the Court that the question of whether the Authority fell into error by not considering the factor in s 473DD(b)(ii) on the correct basis in informing its assessment of whether “exceptional circumstances” existed under s 473DD(a) might be arguable. It is difficult to see why the claim that FBR18 holds that fear should not be characterised as “personal information”. It is not inherently implausible that FBR18 might hold such a fear. It is a fear of a similar nature to other claims raised by the applicant: as a Tamil who is a failed asylum seeker and as someone who left Sri Lanka illegally. The question of whether the claimed fear was believed and well-founded would only have fallen to be decided at the deliberative stage.

62    Nonetheless, the Court is not satisfied that leave should be given to the applicant to raise the second proposed new ground or the correlative element of the fourth proposed new ground for the first time on appeal for the following reasons:

(1)    The applicant’s submissions assert that it was an error of the Authority not to take into account either of the limbs of s 473DD(b) in making the assessment of the imputed political opinion new claim under s 473DD(a) but they do not set out why the applicant says that either s 473DD(b)(ii) applies on the facts of this case, other than to say that this is a case where ss 473DD(a) and 473DD(b) may overlap. Counsel for the applicant did not seek to address the issues raised in the Minister’s written submissions in oral submissions.

(2)    Whether or not the Authority acted on a wrong understanding as to the meaning of “credible personal information” as found in CSR16 v Minister for Immigration and Border Protection was not raised by the applicant in written or oral submissions.

(3)    It would plainly be better if the Authority exposed its reasoning on whether it adverted to either or both of the limbs of s 473DD(b) in forming a view as to whether “exceptional circumstances” exist under s 473DD(a). However, as submitted by the Minister, the Court cannot readily infer that matters not mentioned in the Authority’s reasons in relation to whether it was entitled to consider “new information” under s 473DD were overlooked by it for the reasons given in CVS16 v Minister for Immigration and Boarder Protection [2018] FCA 951 at [25]-[30] (Bromwich J) and BCV16 v Minister for Immigration and Border Protection [2018] FCA 365 at [44]-[50] (Thawley J). In this case, the Authority addressed issues at DR[5]-[12] in a manner which suggests awareness of s 473DD: the Authority stated that it had regard to FBR18’s representative’s submissions insofar as they contained arguments regarding why he did not agree with the delegate’s decision (DR[5]); the characterisation of a number of matters addressed in those submissions as “new information” (DR[6]-[12]) and the consideration of whether articles referred to at DR[9]-[11] were published before the delegate’s decision.

(4)    In BZE18 v Minister for Home Affairs [2019] FCA 126, Derrigton J found that the Authority did not err in failing to consider such a claim on the basis that it was “new information” when it was raised for the first time before the Authority and the Authority made an express finding that the claim was “more or less speculative” without a credible basis having been raised by the applicant’s representative such that it was not satisfied that the s 473DD(b)(i) or (ii) were met. That was in circumstances where, at [26], his Honour noted that:

The Minister correctly points out that the 2017 Sri Lanka Country Report at 5.19 stated that “Returnees are also processed en masse, and individuals cannot exit the airport until all returnees have been processed”. There is no mention in that sub-paragraph or in the general section under the heading “Treatment of Returnees” (5.17 to 5.28) that a returnee might experience any risk of being imputed with the political opinion of others in the group being processed and especially those found to be persons of interest.

  Although there is no evidence that that is how the Authority in fact reasoned in FBR18, the similarity of the circumstances would suggest that such reasoning was open to the Authority in his case and the submissions to the Authority provided by FBR18 did not suggest any other basis for FBR18’s fear which went beyond the DFAT report.

(5)    The strength of the ground is not outweighed by the considerations set out at [23] above such that the Court is not satisfied that the interests of justice demand that leave be given to the ground to be raised on appeal.

Other basis of understanding second proposed new ground

63    At the hearing, the Court enquired as to whether this ground raised the issue that the imputed political opinion new claim was not “new information” having regard to the reasoning of the High Court in Plaintiff M174/2016 at [24] and the Full Court in Minister for Immigration and Border Protection v CLV16 [2018] FCAFC 80; 260 FCR 482 at [35] and [54]. This is because it is apparent from DR[8] that the fact of “en masse” processing was referred to in the DFAT report which was before delegate so that the factual substratum for the claim was not itself “new information”. The Court enquired whether this ground should be understood as saying that the Authority fell into jurisdictional error on the basis that it failed to consider the imputed opinion new claim because it mischaracterised it as “new information”. Counsel for the applicant indicated that he would press the ground on that basis.

64    The Minister’s legal representative submitted that, understood that way, the ground must fail and noted the Minister’s written submissions at [50(b)] which were referred to in the FCCA Judge’s reasons at [19]:

(b)    it is now well established that the raising of a claim to fear harm which had not been previously put by an Applicant necessarily involves the communication of “new information” and is thus subject to the provisions of s 473DD (see CVK16 v Minister for Immigration and Border Protection [2017] FCA 1434; EXV17 v Minister for Home Affairs [2018] FCA 1780; ADN18 Minister for Home Affairs [2018] FCA 1677;

65    The Minister’s representative submitted that the “new information” was that the applicant feared harm on the basis of political opinion with which he might be imputed during “en masse” processing, a claim which had not been made at any point before the applicant’s representative made submissions to the Authority.

Consideration

66    In CVK16 v Minister for Immigration and Border Protection [2017] FCA 1434; 257 FCA 297 [49]-[53], McKerracher J considered the proposition that there was no impediment to the Authority considering a new claim to fear harm based on existing information that was not new information. At [50], his Honour said:

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.

67    Justice McKerracher found that the new claim was “new information” because it pertained to a different fear.

68    Although it appears that some of McKerracher J’s reasoning in paragraphs (a) and (b) of [50] may now be at odds with the High Court’s decision in Plaintiff M174/2016 at [17] and [85] insofar as the High Court found that the Authority was bound to conduct a de novo review, in ADN18 Minister for Home Affairs [2018] FCA 1677 at [39], Griffiths J rejected that proposition and found that McKerracher J was plainly right in what his Honour said at [50].

69    It is to be noted that, in his visa application, CVK16 referred briefly to a criminal charge which had been brought against him and then withdrawn. After the visa was refused, CVK16 provided to the Authority details of the circumstances giving rise to the charge (which were embarrassing in nature and that was his explanation for failing to reveal those details earlier) and its withdrawal and stated for the first time that he feared harm as a result of the circumstances giving rise to the charge. Thus, while McKerracher J characterised the new claim to fear harm as “new information” there was both new information (about the circumstances of the charge) and a new claim in that case.

70    Having said that, in CVK16 v Minister for Immigration and Border Protection at [17], McKerracher J recorded an extract from the Explanatory Memorandum for the Migration and Maritime Powers Legislation Amendment (Resolving Asylum Legacy Caseload) Bill 2014 (Cth) pursuant to which Pt 7AA was included in the Migration Act. Relevantly, that extract contained the following material (which has been abridged) and the emphasis was added by McKerracher J:

As a limited review body, other than in exceptional circumstances, the [Authority] is prohibited from considering any new information for the purposes of making a decision, irrespective of whether the [Authority] obtained it through its discretionary powers or an applicant provided it of their own volition. … The limited review mechanism supports the measures in the Migration Amendment (Protection and Other Measures) Bill 2014 which clarify the responsibility of asylum seekers to specify the particulars of their claim, provide sufficient evidence to establish their claim and encourage complete information to be provided upfront. The measures will prevent those asylum seekers who attempt to exploit the merits review process by presenting new claims or evidence to bolster their original unsuccessful claims only after they learn why they were not found to engage Australia’s protection obligations by the Department of Immigration and Border Protection.

71    That material would, as found by McKerracher J, support the proposition that a new claim based on material before the delegate would be “new information” because it states a new fear.

72    In EXV17 v Minister for Home Affairs [2018] FCA 1780, EXV17 sought to raise a new ground on appeal that the Authority failed to appreciate that he had a fear of harm arising from the fact that his sister was an asylum seeker and the fear arose either directly because his sister’s status rendered him a target of the Sri Lankan army or because her status re-enforced the perception that he had an anti-government profile. The Authority treated the claim, which was not raised before the delegate, as “new information” even though the information that the sister had claimed asylum in Australia was before the delegate: see EXV17 v Minister for Home Affairs at [4], [10] and [21]. Accordingly, EXV17 v Minister for Home Affairs is relevantly analogous to this case.

73    In EXV17 v Minister for Home Affairs at [28], Derrington J noted that:

In support of the appellant’s first new ground Mr Godwin of Counsel, submitted that there is a distinction between new factual information and new submissions based upon existing facts. He submitted that, here, all that was done was the provision of additional submissions and no new facts or information was provided. He relied upon the decision in Minister for Immigration and Border Protection v CLV16 [2018] FCAFC 80 where it was said:

[50]    It is concluded that a ‘submission’ which only addresses the information already made available for consideration by the Authority and which contains no additional factual information is neither:

1.    A ‘document’; nor

2.    ‘information’

for the purposes of the definition of ‘new information’ as set forth in s 473DC.

…

[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.

He also relied on the following passage in Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16:

[24]    The term ‘new information’ must be read consistently when used in ss 473DC, 473DD and 473DE as limited to ‘information’ (which may or 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).

74    At [29], Derrington J noted that the Court’s attention was drawn to the decision of the Full Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1 and in particular that part of the judgment which considered the obligation of a decision maker to make a finding on a “substantial, clearly articulated argument relying upon established facts”. No argument was raised by FBR18 that an unarticulated claim was before the delegate in the same terms as the claim articulated for the first time in the submissions to the Authority.

75    At [42]-[44], his Honour went on to say:

In the documents provided by the advisor to the IAA the advisor said that he was only making “submissions” and he expressly disavowed that “new information” was being provided. However, regardless of that assertion, to the extent to which the appellant wishes to rely upon the advisor’s “evidence” that he had a fear or risk of persecution or harm because his sister had applied for asylum, the statement made by the advisor was “information”. It was a statement of fact and not merely a submission on the material which had been before the delegate. In this way, the advisor’s statement that the appellant had a fear of persecution or there was a risk of harm because his sister was an asylum seeker was, unquestionably, new information. Importantly, it was not new information which the IAA was invited to consider and no reasons were advanced as to how it could possibly have met the criteria of s 473DD of the Act.

Given the above, there is no need to consider in this case whether new arguments or new claims based solely on the material which was before the delegate can be agitated before the IAA: see CVK16 v Minister for Immigration and Border Protection [2017] FCA 1434 and Minister for Immigration and Border Protection v CLV16.

To the extent to which the appeal is framed on the above submission, it cannot succeed.

76    In considering a submission that the fact of EXV17’s sister was an asylum seeker was an integer of a wider claim that he feared harm because of his actual or imputed anti-government opinion, Derrington J found (at [49]) as follows:

The appellant first relied upon the fact of his sister having made a claim for asylum in his advisor’s submissions to the IAA when he claimed that her conduct gave rise to his real or imputed anti-government opinion which created in him a fear of persecution. Whilst it was submitted that this claim arose on the material before the delegate, that should not be accepted. The submission made to the IAA that the appellant fears persecution or is at risk of harm due to his actual or imputed anti-government opinions which arise from, inter alia, his sister having sought asylum, contains assertions of fact. In particular, that his profile as having anti-government opinions arose or were imputed because his sister had applied for asylum. The assertion of that causal connection was not information which was before the delegate and, before the IAA would have constituted “new” information. Similarly, his claimed fear of persecution because of his anti-government opinions (founded partly on his sister having sought asylum) was, as identified above, not information previously provided. That was a new submission based on the newly asserted facts that he had the fear alleged, that he had the actual or imputed political opinion and, the imputed opinion arose because of his sister’s asylum seeker application.

77    The force of Derrington J’s decision in EXV17 v Minister for Home Affairs is that, despite the terms of Minister for Immigration and Border Protection v CLV16 at [50] and [54] dealing with submissions based on established pool of factual information, new claims to fear harm based on those facts are “new information”. In terms, that position was supported in CVK16 v Minister for Immigration and Border Protection at [50] and [53], albeit that CVK16 put additional material before the Authority in relation to the nature of the charges against him and the circumstances of their withdrawal in support of his new claim and that case may be thought to be distinguishable. Justice Griffiths appears to have supported that position in ADN18 Minister for Home Affairs [2018] FCA 1677. As noted above, Derrington J found that a new claim based on information before the delegate was “new information” in BZE18 v Minister for Home Affairs.

78    Having regard to these decisions of three separate single judges of this Court, sitting on appeals from the FCCA, it appears that the second proposed new ground of appeal understood as asserting that a new claim based on an established pool of facts is not “new information” has limited prospects of success, although the proposition has yet to be tested squarely by a bench of three judges.

79    After weighing the limited prospects of the proposed new ground characterised in this second way together with the matters referred to at [23] above, the Court is not satisfied that the interests of justice demand that leave be given to raise it on appeal for the first time.

Third proposed new ground

80    The third proposed new ground is as follows (as written):

The IAA failed to consider the case SZSTR V Minister for Immigration and Anor [2014] FCCA (7 November 2014) referred to in Submission dated 9 April 2018 (para 6)

Submissions

Applicant’s submissions

81    The applicant’s written submissions on this ground were very brief; they provided as follows:

Proposed New Ground 3

  a.    The IAA made findings at paragraph 60[CB196] and 67[CB197].

b.    These failed to confirm the IAA considered all claims cumulatively, which it could not have done in any event because of the failures identified above in the new grounds 1 & 2.

82    DR[60] and [67] provide as follows:

Refugee: conclusion

60.    The applicant does not meet the requirements of the definition of refugee in s.5H(1). The applicant does not meet s.36(2)(a).

…

Complementary protection conclusion

67.    There are no substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving county, there is a real risk that the applicant will suffer harm. The applicant does not meet s. 36(2)(aa).

83    In oral submissions, counsel for the applicant noted that these paragraphs of the Authority’s reasons do not follow the more normal formulation of the Authority’s conclusions which often indicate that the Authority has considered the applicant’s claims “individually and cumulatively”.

84    Despite references to pages of the Court Book in the third proposed new ground, the Court Book which was in evidence before the FCCA was not in evidence on the application to this Court. The application book contained only the FCCA Judge’s reasons, the Authority’s Decision Record and copies of orders made by Registrar Morgan and the FCCA Judge in relation to preparation of the application to the FCCA for hearing.

85    Counsel for the applicant did not tender the applicant’s submissions to the FCCA referred to in the proposed new ground.

Minister’s submissions

86    The Minister relied on his written submissions at [49]-[51] which were as follows:

Firstly, insofar as the Applicant’s Submissions suggest that the IAA failed to assess the Applicant’s claims cumulatively, rather than to refer to a case cited in the submissions to the IAA, the ground departs from the Draft Notice of appeal and thus ought to be rejected.

Secondly, the IAA did not fail to comply with any “obligation” to consider the Applicant’s claims cumulatively. Where, as here, an Applicant’s underlying claims have been expressly rejected, no obligation of “cumulative consideration” can arise.

Thirdly, in any event, the IAA does not fall into jurisdictional error merely by failing to expressly state that it considered an Applicant’s claims cumulatively. Otherwise this, this ground appears to add nothing to Proposed Grounds 1 and 2 addressed above.

87    The Minister cited Minister for Immigration and Border Protection v DDK 16 [2017] FCAFC 188 at [32]-[35] as authority for the second proposition and SZTZY v Minister for Immigration and Border Protection [2018] FCA 911 at [9]-[10] for the third proposition.

88    In Minister for Immigration and Border Protection v DDK16 [2017] FCAFC 188 at [32]-[35], the Full Court (Gilmore, Markovic and O’Callaghan JJ) said:

32    Counsel appearing for the respondent ultimately, and quite properly, did not seriously dispute the Minister’s submission that no obligation to make a “cumulative assessment” arises where individual claims have been rejected as a factual matter, or have been the subject of findings that they did not or would not lead to ongoing problems for the visa applicant were he or she to return to a receiving country (and no claim is made that any of those individual findings were the subject of appellable error): see SZNKO v Minister for Immigration and Citizenship [2013] FCA 123; 140 ALD 78 at [135]-[136]; W352 v Minister for Immigration and Multicultural Affairs [2002] FCA 398 at [21]; Khan v Minister for Immigration and Citizenship [2000] FCA 1478 at [31].

33    Counsel for the respondent adopted as correct the following submissions made on behalf of the Minister:

Broadly speaking, it can be accepted that there is an obligation to consider the parts of a Visa applicant’s claim for protection cumulatively. It can also be accepted that the same principles as to whether a visa applicant meets the criteria for protection as a refugee apply, by analogy, to the complementary protection criteria in s 36(2)(aa) of the [Act] [citing MZZUG v Minister for Immigration and Citizenship [2015] FCA 1151 at [47]].

The obligation to give cumulative consideration to a visa applicant’s claims arises as part of the decision-maker’s obligation to consider the case before them. In that context, a decision-maker is required to consider each integer of a visa applicant’s claims, whether they are raised expressly or arise clearly on the material [citing Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 at 139 [7]]. Further, as part of the decision-maker’s duty to address the case raised by the material before them, the decision-maker must consider the whole of the case put forward by the visa applicant [citing Khan v Minister for Immigration and Citizenship [2000] FCA 1478 at [31]]. There may be a combination of factors that create the profile of the person who meets (relevantly here) the complementary protection criteria [citing MZZUG at [47]], or causative factors that may not give rise to the relevant risk on their own, but may do so collectively [citing W352 v Minister for Immigration and Multicultural Affairs [2002] FCA 398 at [21]].

34    In our view, however, such considerations have no application in a case such as this and are of no assistance to the respondent. It seems to us, as a matter of inexorable logic, that if, as is common ground here, all individual claims or bases for establishing an entitlement to a visa are dismissed (here, dismissed as not giving rise a real or significant risk of harm upon return to the country of nationality or receiving country), then no amount of “cumulative consideration” of those rejected claims is capable of producing a different result. It follows, in our respectful view, that the primary judge was wrong to hold otherwise.

35    In any event, it is, with respect to the primary judge, clear on the face of the IAA’s detailed and thorough reasons that it expressly considered each of the various risks relied upon by the respondent in respect of both his refugee and complementary protection claims on a cumulative basis. On the refugee claim, for example, the IAA expressly refers and considers in detail submissions made by the respondent’s representative before it that a number of matters should be considered cumulatively (see [22]-[26] of the IAA reasons). It is not necessary to recite those passages, because counsel for the respondent did not seek to argue that the IAA’s treatment of the respondent’s refugee claim involved any error of law, by lack of cumulative reasoning or otherwise.

89    In SZTZY v Minister for Immigration and Border Protection [2018] FCA 911, Logan J said the following at [9]-[10]:

9.    It may be that Ground 1 seeks to raise as error the conclusion of the primary judge that the appellant’s claims for protection had not been cumulatively considered by the Tribunal. That is the essence of the first of his amended judicial review grounds. The learned primary judge found no merit in that ground, holding that the Tribunal’s reasons disclosed that there had been a cumulative consideration of the components of his claim.

10.    The Tribunal does not in terms use the word “cumulative” in its reasons. Even if it had, a formulistic incantation of such a term, when the reasons read as a whole disclosed to the contrary, would show that the components had not been cumulatively considered. As it is, when one looks at the reasons as a whole and, in particular, at that part of the Tribunal’s reasons under the heading “Fear of being persecuted because of a political opinion imputed to him for any or all of the following reasons” (emphasis added), appeal book p 313 and following, it is apparent that the Tribunal adopted a cumulative approach in any event.

Consideration

90    The third proposed new ground relies on Judge Nicholls’ decision in SZSTR v Minister for Immigration and Border Protection [2014] FCCA 2554. In that case, the FCCA Judge made orders in the nature of writs of certiorari and mandamus because his Honour was satisfied that, although the Tribunal’s findings in relation to various incidents claimed by SZSTR were reasonably open to it to make, it failed to address whether the aggregation of those incidents, their number and occurrence over a short period of time said something relevant about SZSTR which was in turn relevant to its assessment of the risk of harm and it thereby failed to consider the claim she had made, resulting in jurisdictional error.

91    While it is true that the applicant’s submissions are not perfectly aligned with the third proposed ground as expressed, the reference to SZSTR v Minister for Immigration and Border Protection [2014] FCCA 2554 has some connection with a failure to consider an applicant’s claims cumulatively. In SZSTR v Minister for Immigration and Border Protection, the FCCA Judge made orders in the nature of writs of certiorari and mandamus because his Honour was satisfied that, although the Tribunal accepted SZSTR’s account of events in Fiji, it failed to address whether the aggregation of those incidents, their number and occurrence over a short period of time said something relevant about SZSTR which was in turn relevant to its assessment of the risk of harm and it thereby failed to consider the claim she had made, resulting in jurisdictional error.

92    Accordingly, the Court does not accept the Minister’s first proposition in relation to this ground. However, the Court is not satisfied, having regard to the authorities cited by the Minister, that this ground has sufficient merit to warrant its consideration on appeal for the two other reasons given by the Minister.

93    Save for the subject matter of grounds 1 and 2, FBR18 has not challenged any of the Authority’s findings in relation to his detailed claims. For reasons previously given, the Court has found that leave should not be granted to raise new grounds 1 and 2 on appeal. It is therefore appropriate to treat the Authority’s decision that the “new information” referred to in those grounds on the basis that it should not be taken into account in determining the applicant’s claims whether individually or cumulatively.

94    The Authority gave detailed and cogent reasons for its findings at DR[41]-[60]. Those findings included:

(1)    The applicant is a Tamil male from the Northern Province of Hindu faith who owned and operated a small restaurant before he departed Sri Lanka for Malaysia in 2006 and before departing Sri Lanka for Australia illegally in 2012. He lodged a complaint in 2006 against police officers who were not paying him for dining at the restaurant and he was beaten as a result and has some visible scarring. He stayed in Malaysia for three years until 2009 and registered with UNHCR while he was there, but he was not found by the UNHCR to be a refugee. He was affected by a data breach of personal details by the Department of Immigration.

(2)    The Authority was not satisfied that he was of ongoing interest to authorities when he left Sri Lanka in 2006 or 2012 or in the following period nor that he was the target of ongoing forms of harassment or extortion.

(3)    At the time of its decision, the applicant’s restaurant had been closed for six years and he had not claimed that he would reopen it upon return. The Authority was not satisfied that if he did, he would face a real chance of being targeted for extortion or harmed on account of his prior ownership or perceived wealth. Country information indicated that the prevalence of kidnappings and ransoms was infrequent and had fallen considerably since 2009 and paramilitary activity had ceased (as at 2016) and the influence of the Karuna group had waned if not ceased completely.

(4)    The applicant had not claimed any personal involvement with the LTTE or to have immediate family members with a connection. The Authority rejected his claims to have been photographed with a prominent LTTE member in 2006, and he had not claimed to have been arrested or have outstanding warrants or be person whose name would appear on a watch list or to have participated in Tamil separatist activities in Australia. A 2017 Home Office report indicates there is insufficient evidence to support that having a scar is a risk factor.

(5)    While his wife has relatives in Canada, Finland and Switzerland and country information indicates that some Tamil diaspora are monitored by Sri Lankan intelligence, the applicant has not claimed that these family members have any real or imputed Tamil separatist political opinions and his wife has stronger familial ties and she does not appear to have been affected by this relationship.

(6)    Country information indicates that irrespective of religion, ethnicity, geographic location or other identity, Sri Lankans face a low risk of mistreatment that can amount to torture. The Authority was not satisfied that the applicant faced a real chance of harm on account of his ethnicity, his experiences in Sri Lanka or his scarring.

(7)    The Authority was not satisfied that any details of visa applications were released in the 2014 data breach although it might be inferred that the applicant had sought asylum, but it was not satisfied that the data breach or being a returning asylum seeker would give rise to a real chance of serious harm. His claims as a returning asylum seeker who left Sri Lanka illegally were assessed against country information.

95    The Authority appears to have assessed all of the applicant’s claims (other than those based on “new information” which the Authority formed the view it was not entitled to consider under s 473DD) in detail, including (where relevant) against country information in forming its assessment at DR[60] and it is difficult to see what more the inclusion of the word “cumulative” would have added to the assessment.

Fourth proposed new ground

96    The fourth proposed new ground is (as written):

The IAA failed to consider S 473DD(b)(i) or (ii) when finding it was not satisfied there were exceptional circumstances in respect of

a.    The letter of complaint and response contained in Submission dated 10 April 2018 (para 12);

  b.    the AAT decision 2 March 2018;

c.    The Submission dated 9 April 2018: “it must also be noted that the applicant's father was killed by the army” (para 7);

d.    The new claim raised in Submissions dated 9 April 2018 that if one person comes to the adverse attention of the authorities upon return to Sri Lanka while being processed "en masse", it will impute other returnees with political opinion (para 8)

Such failure amounting to jurisdictional error.

97    In addressing the merits of the fourth proposed appeal ground, the applicant made the same submissions as those in relation to the second proposed new ground. He did not address each of the items referred to in a.-c. of the proposed new ground.

Consideration

98    Leave should not be granted to raise this ground insofar as it relates to the imputed opinion claim for reasons previously given.

99    Beyond the statement that ss 473DD(a) and 473DD(b) overlap in relation to the items mentioned in paragraphs a. to d. of the proposed ground, the applicant has not made detailed submissions as to why the Authority’s consideration of these matters reveals jurisdictional error.

100    The Authority considered the letter of complaint by the applicant’s wife to the Grama Niladhari and his response referred to in the proposed ground at DR[12]. The Court accepts the Minister’s submission that, although the Authority made no express reference to s 473DD(b)(i) or 473DD(b)(ii):

(1)    The Authority’s reasons at DR[12] indicate that the Authority had regard to the substance of s 473DD(b)(i) when it found that that although the letter of complaint post-dated the delegate’s decision the claims referred to in it related to inquiries said to have been made about FBR18 two or three years before the delegate’s decision.

(2)    The force of the reasoning in DR[12] is that the Authority considered whether the letter of complaint related to “credible personal information” within s 473DD(b)(ii). The Authority notes that:

(a)    There was no explanation given for why FBR18’s wife only made the complaint to the Grama Niladhari three weeks after the delegate made his decision.

(b)    The complaint letter “purports” to relate to enquiries made on 3 July 2015 and 22 May 2016, two to three years before the delegate made its decision, but such a matter was not raised by the applicant until 20 April 2018 when the Authority received an email from FBR18’s representative. No explanation was given for that despite the fact that the applicant had been told (via an information sheet in Tamil given to him before the delegate’s interview) that it was his responsibility to raise all claims and supporting evidence.

(c)    There is no evidence that the wife ever made a complaint to the police, as suggested by the Grama Niladhari.

101    The Court is not satisfied that this element of the proposed ground has sufficient merit to warrant leave for it to be raised on appeal.

102    The Authority considered the extract of the AAT decision dated 2 March 2018 at DR[6]. The Authority noted that the fact that the decision related to a Sri Lankan asylum seeker but there was no indication of the nature of that person’s claims or how they related to the applicant’s own circumstances. In the circumstances, it is difficult to see how the extract was relevant. The applicant’s submissions do not explain how either of s 473DD(b)(i) or (ii) could apply to the extract, since it predates (albeit by less than a month), the delegate’s decision and it is not apparent how it might be “credible personal information” relating to the applicant. A new ground on this basis does not appear to be arguable and leave should be refused to its being raised on appeal.

103    The Authority considered the claim that FBR18’s father had been “killed by the army” at DR[7]. There is no error in the Authority’s finding that there was no meaningful detail on the basis of which to assess that claim. Whether or not the Authority considered the possible application of s 473DD to this claim, it is a case in which it was plainly open to the Authority to decide whether to consider the claim under s 473DD(a). While the Authority also took into account that the applicant had been warned of the necessity to raise claims and evidence before the delegate, this ground could not succeed because there is no explanation of the circumstances surrounding the father’s death. This ground has no merit.

Conclusion

104    For the foregoing reasons, leave to raise the proposed new grounds on appeal and leave to appeal should be refused. The application should be dismissed with costs.

Associate:

Dated:    1 October 2019