FEDERAL COURT OF AUSTRALIA

CVV16 v Minister for Home Affairs [2019] FCA 1890

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 27 of the Federal Court of Australia Act 1976 (Cth), the appellant has leave to adduce new evidence on the appeal, being the oral evidence of the appellant given on 3 September 2019 and the following affidavits, together with the exhibits to those affidavits:

(a)    Affidavit of Patricia Ng Phaik Kim dated 22 June 2019;

(b)    Affidavit of CVV16 dated 24 June 2019;

(c)    Affidavit of the father of CVV16 dated 30 August 2019;

(d)    Affidavit of Ganasan Arujunan dated 30 August 2019; and

(e)    Supplementary affidavit of CVV16 dated 14 August 2019.

2.    The appeal be allowed.

3.    The orders of the Federal Circuit Court made on 26 November 2018 be set aside, and in lieu thereof, order that:

(a)    The decision of the Immigration Assessment Authority made on 23 September 2016 be set aside.

(b)    The matter be remitted to the Immigration Assessment Authority, differently constituted, for determination according to law.

(c)    The first respondent pay the applicant’s costs of the application, to be fixed by way of a lump sum.

4.    The first respondent pay the appellant’s costs of the appeal, to be fixed in a lump sum.

5.    If lump sums are agreed between the parties in respect of orders 3 and 4, proposed orders reflecting that agreement are to be filed on or before 29 November 2019.

6.    In the absence of proposed orders filed in accordance with paragraph 5, the question of appropriate lump sums for the appellant’s costs of the appeal, and of the judicial review application to the Federal Circuit Court, are to be referred to a Registrar for determination.

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

REASONS FOR JUDGMENT

MORTIMER J:

1    This is an appeal from orders made by the Federal Circuit Court on 26 November 2018, dismissing the appellant’s application and ordering him to pay the respondent’s costs fixed in the sum of $7,328: see CVV16 v Minister For Immigration & Anor [2018] FCCA 3451.

2    For the reasons I set out below, the appeal will be allowed.

Relevant background

3    The appellant is a citizen of Sri Lanka and is of Tamil ethnicity. The appellant arrived on Cocos Island by boat on 13 October 2012 and was first interviewed on 2 January 2013.

4    He lodged an application for a Safe Haven Enterprise (subclass 790) Visa (SHEV) on 24 February 2016 which was supported by an undated statutory declaration. There is no explanation in the evidence why there was such a delay between the appellant’s arrival and the lodgement of his visa application.

5    The appellant was interviewed by a delegate of the Minister on 23 June 2016 and his application for a visa was refused in a decision on 25 July 2016. The decision of the delegate was, by operation of s 473CA of the Migration Act 1958 (Cth), referred to the Immigration Assessment Authority for review on 26 July 2016.

6    The Authority affirmed the decision not to grant a protection visa to the appellant on 23 September 2016.

7    The appellant sought judicial review of the Authority’s decision on 3 October 2016. There was a single ground of review before the Federal Circuit Court, concerning the Authority’s approach to s 473DD of the Migration Act, and whether “new information” on which the appellant sought to rely should be considered by the Authority. As I have noted at [1] above, the judicial review application was dismissed. The appellant’s claims and the parties’ contentions are set out in the Federal Circuit Court’s reasons and I do not repeat them here, save where necessary to consider the grounds of appeal.

8    I do, however, note this aspect of the process leading to the appeal. The substantive orders dismissing the judicial review application were made on 26 November 2018 by Judge Street, with ex tempore reasons. On 13 December 2018, the appellant filed a notice of appeal, although it was dated 6 December 2018. Judge Street’s formal reasons were not given until 1 February 2019.

The appeal to this Court

9    Initially, there was a single ground of appeal to this Court which was pressed. The extent to which it overlapped with the grounds pressed before the Federal Circuit Court was a matter the Minister initially disputed, but this was resolved at the hearing of the appeal by a clarification on behalf of the appellant. The ground is expressed thus:

1.    The primary Judge erred in not finding that the Immigration Assessment Authority, by not considering ‘credible personal information’ from the Human Rights Commission of Sri Lanka as capable of informing the requirement of ‘exceptional circumstances’ under paragraph 473DD(a) of the Migration Act 1958 (Cth), misconstrued or misapplied section 473DD.

10    Section 473DD provides:

473DD Considering new information in exceptional circumstances

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

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

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

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

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

11    The appellant relies on the approach taken by White J in BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958; 254 FCR 221, at [9] in particular, and contends that the Authority made the same kind of error. In substance, the appellant contends that as part of deciding whether or not there were “exceptional circumstances” justifying consideration of the information (s 473DD(a)), the Authority should have, but did not, consider whether the information submitted by the appellant was “credible personal information which had not previously been known” within the meaning of s 473DD(b)(ii).

12    The appellant contends the new information was material to a critical aspect of the appellant’s claims, on which he had been disbelieved by the delegate and was disbelieved by the Authority: namely, whether he had been kidnapped and tortured in January 2010. The information was, he contended, “prima facie credible” because it “was capable of being believed at the deliberative stage of the Authority’s review”. The appellant took this description of credible from the judgment of Bromberg J in CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 at [38]-[42]. He submits there was no active intellectual engagement with whether or not the information met the statutory description, and whether therefore there were “exceptional circumstances”; the Authority’s reasoning was said to be essentially conclusory, adopting too narrow an approach to what could constitute exceptional circumstances.

13    He contends that the Authority’s reasoning (as set out below) reveals that the Authority approached paras (a) and (b) of s 473DD as if they were “strictly cumulative”, without taking into account, as White J had outlined in BVZ16, that the matters in s 473DD(b) might inform the matters in s 473DD(a). The appellant accepted BVZ16 was decided after the Authority’s decision, but submitted that in substance the jurisdictional error identified by White J was what had occurred in this case.

14    The notice of appeal contained a second ground, concerning an alleged denial of procedural fairness by the Federal Circuit Court, but in his written submissions counsel for the appellant stated the ground was not pressed. At the hearing, counsel indicated leave would be sought to raise a further ground of appeal. I deal with this issue separately at [49]-[58] below.

The aspect of the Authority’s decision impugned by the appellant

15    The material which was the subject of the decision under s 473DD is set out at [5] of the Authority’s reasons (with redactions to prevent the appellant being identified) :

5.    The applicant has submitted the following documents to the IAA:

•    untranslated letter dated 29 January 2010 bearing a receipt stamp of that date with the emblem “HRCSL” − Regional Centre Vavuniya;

•    complaint receipt confirmation dated 29 January 2010 from the Human Rights Commission of Sri Lanka (HRCSL), Vavuniya addressed to the applicant’s father;

•    two Human Rights Commission of Sri Lanka cards bearing separate reference numbers;

•    documentation concerning complaint made to the HRCSL on 29 January 2010 by the applicant’s father;

•    reference from the Church of the American Ceylon Mission, [REDACTED] dated 1 September 2013;

•    birth certificate showing a year of birth as 1995 (untranslated);

•    letter from the [REDACTED] Rural Development Society, Vavuniya dated 20 February 2010 (untranslated);

•    untranslated document;

•    untranslated document in the form of a letter dated 23 August 2013;

•    untranslated document apparently bearing the date 8 October 1997.

16    The ground of appeal does not challenge the Authority’s decision on the untranslated documents, but focussed on the Human Rights Commission documents and the letter from the American Ceylon Church.

17    It cannot be disputed that one of the appellant’s central claims of prior persecution had referred to a complaint to the Human Rights Commission, arising out of what on the appellant’s narrative was a serious incident of kidnapping and physical assault and injury perpetrated on him by people the appellant claimed were part of, or associated with, the Sri Lankan authorities. This is how the Authority described this aspect of the appellant’s narrative:

On 14 January 2010 in Vavuniya the applicant was kidnapped, tortured and held for 12 days; two people came in a van and kidnapped the applicant when he was on the street. They wore black uniforms and their faces were masked. The applicant was restrained and blindfolded and over the 12 days he was detained, he was tortured and accused of helping the LTTE When the applicant refused to answer questions or confess to anything he was cut on the arm with a blade and he bears a scar from this. He was released after 12 days in a bus terminal. The applicant was taken to the human rights commission of Sri Lanka by his father and he has a human rights letter regarding this event. Following this the applicant stayed with his mother for three months and then obtained work in a bike shop. He did not return home to live with his parents;

18    The appellant’s argument locates the jurisdictional error in the Authority’s reasons at [6]-[8] of its reasons, and at [7] in particular:

6.    The applicant has provided no submission with the further documents supplied to the IAA, or any explanation as to the relevance of any of the documents submitted, including the untranslated documentation. There is nothing in the record of the applicant’s interview with the delegate on 23 June 2016 or in the other materials before the IAA to indicate the relevance of the untranslated documentation. Neither is there any explanation as to how this documentation could not have been provided to the Department prior to the primary decision made on 25 July 2016, as required under s.473DD(b)(i). In the absence of any explanation as to its relevance, I am not satisfied the untranslated materials constitute credible personal information that may have affected consideration of the applicant’s claims, as required under s.473Dd(b)(ii). I have accordingly not considered any information associated with the untranslated documentation provided.

7.    Certain of the documentation containing English language text relates to the HRCSL and appear to connect to the applicant’s claim in relation to his father making a complaint to this body on 29 January 2010. Having regard to the totality of the evidence before me, I am not satisfied that there are exceptional circumstances to justify considering this new information, as required under s.473DD(a). In addition, no explanation has been provided as to why this information could not have been provided to the Minister before the decision was made.

8.    The other document containing English text is the letter from the [REDACTED] Church, which contains handwritten text that appears to make reference to certain of the applicant’s claims. The applicant has listed his religion as Hindu and has made no mention previously of any involvement or association with a Christian church. Having considered the totality of the evidence currently before me, I am not satisfied that there are exceptional circumstances that would warrant consideration of this new information. In addition, nor has the applicant provided any explanation as to how this information/documentation could not have been provided to the Department prior to the delegate’s decision.

19    The Authority went on to make the following finding, adversely to the appellant, at [20] of its reasons:

I further do not accept the applicant’s claim that he was kidnapped, tortured and detained for 12 days in January 2010 in Vavuniya. Separately from the absence of any plausible reason why this may have occurred, there are a number of inconsistencies between the applicant’s written statement and his evidence provided in his interview with the delegate. These include that in his written statement he claims that two people came in a van to kidnap him, when he had gone out of the house in search of his father who had gone to the shops. By contrast, in the interview, the applicant describes four people in a white van, who kidnapped him when he went out to a restaurant for a meal, as he was staying in a lodge. At various times during the interview with the delegate, including in relation to discussion of this claim, it is apparent that the applicant had sought to refer to his written statement, which the delegate asked the applicant not to do and who rather give evidence from his lived experience. In the context of the inconsistencies in the applicant’s evidence between his written claims and his oral statements, I give this significant weight in determining that the applicant has invented significant aspects of his claim, including his claim in relation to kidnapping and 12 days of detention in 2010.

The Minister’s “revival” argument

20    In his written submissions, the Minister contended that the appeal ground directs attention to the Authority’s treatment of the documents submitted by the appellant which dealt with the Human Rights Commission and the document dealing with statements by the American Ceylon Church, when in fact before the Federal Circuit Court the appellant’s legal representative abandoned this broad challenge, and confined the argument about s 473DD to the Human Rights Commission documents. The Minister described these documents as a “receipt”, which may or may not be an accurate term. There are in fact several pages of evidence in the Appeal Book (and in the Court Book before the Federal Circuit Court) on which various “documents” appear, that on their face are documents emanating from the Sri Lankan Human Rights Commission. In any event, I will refer to them as the “Commission documents”, and the statement by a pastor at the American Ceylon Church as the “Church document”. The third category of documents to which the Authority referred at [5] in its reasons, as extracted above, is what can be described, as the Authority did, as “untranslated documents”. For reasons I explain below, these documents were not irrelevant to the Authority’s consideration of the Commission documents.

21    Ultimately, it was not necessary to determine the Minister’s objection to the ground of appeal as expressed. That is because at the start of his oral submissions, counsel for the appellant indicated that the ground of appeal was only pressed insofar as it related to the Authority’s consideration of the Commission documents. The Minister’s counsel indicated there was, in those circumstances, no continuing objection to the appellant’s arguments on the appeal.

The Minister’s answer to the appeal ground in substance

22    The Minister contends that there is no need, in every case, for the Authority to consider the matters in para (b) of s 473DD before deciding the question of exceptional circumstances in (a), and that White J’s reasons should not be construed as making any such statement. Relying on Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110; 264 FCR 249 (McKerracher, Murphy and Davies JJ) at [69] and AOV18 v Minister for Home Affairs [2018] FCA 1871 at [6], the Minister further submits that the “real question” is whether the applicant can show that the Authority misunderstood the breadth of the statutory phrase “exceptional circumstances” for the purposes of s 473DD(a). Relying on AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111; 162 ALD 442 (McKerracher, Murphy and Davies JJ) at [17], the Minister contends the Authority was not required to go beyond the consideration which the Authority gave the Commission documents.

Resolution

Relevant applicable principles

23    In BVZ16 at [9], White J said:

The requirements of subparas (a) and (b) [of s 473DD] are cumulative but may nevertheless overlap to some extent. The Authority’s satisfaction that the new information could not have been provided to the Minister at the time of the s 65 decision (subpara (b)(i)) may contribute to its satisfaction that there are exceptional circumstances to justify considering the new information. So also may the Authority’s satisfaction that the new information is credible personal information which had not previously been known (subpara (b)(ii)). Accordingly, one would expect the IAA to consider the subpara (b) matters when considering in a given case whether the circumstances are exceptional. Obviously enough, however, the matters which may contribute to a finding that the circumstances in a particular case are exceptional may extend beyond those specified in subparas (b)(i) and (ii) and it seems improbable that the Authority could be satisfied, by reference to one matter only, that an applicant’s circumstances are not exceptional.

24    As the parties submitted, since BVZ16, a number of single judge and Full Court decisions have considered the operation of the discretion in s 473DD, and have considered White J’s observations. His Honour’s approach has not been criticised or disapproved, and indeed has been endorsed: see Minister for Immigration and Border Protection v BBS16 (No 2) [2017] FCAFC 199 at [102]-[103] (Kenny, Tracey and Griffiths JJ); CHF16 v Minister for Immigration and Border Protection [2017] FCAFC 192; 257 FCR 148 at [17]-[18] (Gilmour, Robertson and Kerr JJ); DYS16 v Minister for Immigration and Border Protection [2018] FCAFC 33; 260 FCR 260 at [31]-[33] (Tracey, Murphy and Kerr JJ) and AQUI7 at [14]-[16] (McKerracher, Murphy and Davies JJ). What has been made clear, and what can be accepted, is that it is not the case that the matters mentioned in ss 473DD(b)(i) and 473DD(b)(ii) must always be considered in determining whether or not “exceptional circumstances” exist for the purposes of s 473DD(a). Justice Colvin made this clear in AOV18 at [4]. That is, with respect, plainly correct, and reflects the text of the provision, as well as the intention that the matters in paras (a) and (b) are cumulative.

25    Nevertheless, as the Full Court pointed out in CQW17 at [51] (being the same passage on which Colvin J relied for the proposition I have set out at [24]), the nature of the matters in s 473DD(b) means that they may often be relevant to a consideration of exceptional circumstances, because of the breadth of the meaning and content of that concept. Their Honours put it this way:

The expression ‘exceptional circumstances’ in subpara (a) has a broad meaning and it is not possible to state exhaustively what factors will be relevant or what the Authority must consider in a particular case: Plaintiff M174 at [30]. The Authority is obliged to consider all relevant circumstances, and as White J observed in BVZ16 the matters in (b)(i) and/or (ii) will usually form part of the consideration. In the circumstances of the present case, the Authority did not evaluate the significance of the relevant part of the New Raid Information, or turn its mind to whether it was credible personal information capable of informing its satisfaction as to the existence of exceptional circumstances. On a fair reading of paragraph six, the Authority’s finding as to (b)(i) was decisive, and this bespeaks an overly narrow interpretation of the expression ‘exceptional circumstances’.

26    In determining whether material that fell naturally under one or other of the limbs of s 473DD(b) should have been considered as part of the assessment of exceptional circumstances, it must also be recalled, as the Full Court in CQW17 said at [52]:

With respect to the Minister’s arguments in the alternative, the Minister correctly observes that whether a failure to consider relevant material constitutes jurisdictional error will depend on considerations including the circumstances of the case, the nature and cogency of the material, and the place of the material in the assessment of the claims: VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [77]; SZRKT at [112].

27    To the extent the Minister submits the key question is what the Authority’s reasons disclose about its understanding of the criterion of “exceptional circumstances”, those submissions are, with respect, correct. However, taking that approach, on this appeal, I consider the Authority’s reasons disclose a misunderstanding about the breadth of that concept, and how the contended “new information” before it could be relevant to its review.

The Authority’s reasons

28    It is correct as the Minister submits that the obligation in s 473EA(1) does not in its express terms appear to extend to the giving of reasons for the exercise of a statutory discretion conferred on the Authority by Pt 7AA and which might be described as “a procedural decision”. The Minister relied on two decisions which he contended were authority for the proposition that s 473EA(1) of the Migration Act does not require the Authority’s written statement of decision to include a statement as to the exercise of a procedural decision in the course of review. These decisions were CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 at [39] and DHV16 v Minister for Immigration [2018] FCCA 349; 331 FLR 204 at [70].

29    In the present appeal it is not necessary to decide whether or not there is an implied obligation to give reasons for the exercise of a statutory discretion which fundamentally affects the conduct of the review and the nature of the material before the Authority, or to decide whether the proper construction of s 473EA(1) extends to those matters. It is not necessary because in this case the Authority did give reasons for refusing to exercise its discretion to consider “new information”.

30    Of course, even if not legally required to give reasons, a decision-maker such as the Authority faces a choice in relation to explaining why a discretion was or was not exercised: an absence of any explanation may make it easier to establish there was no lawful reason, or may more easily give rise to an inference the matter was not considered at all.

31    Aside from matters of fair and proper public administration, it is therefore not surprising that, in fact, a decision-maker might elect to give reasons. Having elected to do so, a supervising court on judicial review is entitled to assess the reasons given, in the terms they are given. Subject to taking account of the High Court’s observations in Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; 258 CLR 173 at [25], the Court is entitled to treat what are expressed to be the reasons for the exercise of the power as the real reasons for the exercise of the power: see generally my observations in Wall v Repatriation Commission [2019] FCA 1838 at [60] and the cases referred to.

32    I make the following findings.

33    Paragraph [7] of the Authority’s reasons is the sole explanation for the exercise of discretion in relation to the Commission documents. Paragraph [6] deals with the untranslated documents; para [8] deals with the Church document. They are three strands of reasoning about three different kinds of documents put forward to the Authority.

34    The focus of paragraph [7] is on only two matters: the conclusion that there are no exceptional circumstances, and that there was no explanation why the Commission documents could not have been provided to the Minister before the decision was made.

35    Thus there is in fact no consideration given by the Authority to whether the Commission documents could be characterised as “credible personal information” and no consideration of whether the Commission documents were not previously known and, had they been known, may have affected the consideration of the referred applicant’s claims (the second limb of s 473DD(b)(ii)). The ground of appeal falls to be determined on this factual basis.

36    Paragraph [7] contains no explanation as to why the Authority found there were no exceptional circumstances: the paragraph is expressed in conclusory terms only. There is no indication in the reasons as to what the Authority understood to be comprehended by the term “exceptional circumstances” in s 473DD(a), but the absence of any reference in [7] to the factor in s 473DD(b)(i) does suggest the Authority did not consider that factor was capable of informing its decisions on whether exceptional circumstances were present. Indeed, as is now apparent, had the Authority turned its mind to the call the appellant made to the Authority (see [45] below) and inquired further about the Commission documents, I find it is likely the appellant would have explained what happened before the delegate, as he explained it in his evidence to this Court.

37    There were several indications that, objectively, the Commission documents were credible. First, on their face they purported to be from the Sri Lankan Human Rights Commission. The dates were consistent. The name of the appellant’s father as it appears elsewhere in the material before the Authority is the same as the name on the bottom of the acknowledgment document from the Commission. The untranslated document to some extent corroborated the Commission documents, even if the Authority could not read the contents of the document itself. The first page of the untranslated document (at AB232) is a document written in Tamil, but with a stamp on it which on its face bears the words “H.R.C.S.L” and “Regional Centre Vavuniya” and a date of 29 January 2010. The document is in the form of a letter and runs over two pages. On its face the obvious inference is that it is a letter submitted to the Human Rights Commission, on the date 29 January 2010, in support of the complaint being made to it.

38    It is important to record how the appellant described what happened to him in January 2010, in his first statement:

On 14 January 2010, after my exams, for safety reasons I moved to Vavaniya, Sri Lanka. My dad brought me there as I had never travelled outside of my village. They did have a small population of Tamils. When my dad went out to the shops, I went out of the house in search for him. Two people came in a van and kidnapped me. They were wearing full black uniforms and black masks over their faces. I did not know where they took me to as they had tied my hands, legs and blindfolded me. They kidnapped me for 12 days. My parents went in search of me. I think that the area they brought me to was a torture place as you would not want to smell that place. I could hear them torturing others. They tortured me and at the end they said that ‘You were helping the Tamil Tigers.’ They used a blade to torture me and I have a scar, I tried to get a medical assessment done so I can give it to the Australian government and have a human rights letter that I will bring to the interview. I did not know where I was, I had no contact with my parents, I heard people being shot and tortured and had no idea what was going to happen to me. I could not escape but I did not answer their questions so that was why they used a blade on me.

After the 12 days I was dropped off by them at a bus terminal in Vavaniya in the early hours of the morning. My eyes, nose and mouth were covered so I could not breathe, my hands and legs were tied so I could not escape either. People nearby informed my Dad and they took me to the Human Rights Commission of Sri Lanka. After that I returned home and was taken care of by my mum. My village chief in [REDACTED] gave me a certificate to say I was in this village at this time that I will bring to the interview. After the incident I was with my mum for three or four months and then I went to work at a bike shop for about a year and a half. I did not go back to my parents during this time and while working at the bike shop I was in hiding. In 2012, two people went to my home asking where I was. I have evidence to show that students like me involved in the memorial day were being shot. One has died and one escaped Sri Lanka. If required, I can ask my parents to get me the student’s death certificate.

39    The Authority summarised part, but only part, of this account in its reasons at [10], which I have extracted above, including the passage about his father taking him to the Human Rights Commission. In those circumstances, the Authority could not rationally have failed to appreciate the significance of the Commission documents to the most serious aspects of the appellant’s narrative about his past treatment in Sri Lanka. The production of the Commission documents was consistent with a key aspect of the appellant’s account of the claimed persecution in January 2010, and the Authority’s reasons at [7] show no consciousness of this.

40    As it has subsequently emerged, and as I find at [78] below, the Commission documents were before the delegate but because of the particular situation were not “previously known” to the delegate within the terms of s 473DD(b)(ii). The phrase “previously known” here means previously known to either the Minister or the visa applicant: see BBS16 at [106]. However, what happened before the delegate (as I find below) explains why the appellant sought to refer the Authority expressly to the Commission documents.

41    Section 473DD(b)(ii) is an alternative to (b)(i): see the text itself and see also Plaintiff M174 v Minister for Immigration and Border Protection [2018] HCA 16; 264 CLR 217 at [31]. That, it seems to me with respect, is one of the points being made by White J’s observations in BVZ16. The presentation of information which is credible personal information not previously known (see Plaintiff M174 at [33]) but which may have affected the consideration of the referred applicant’s claims is precisely the kind of information which may provide an exceptional circumstance justifying its consideration on the review.

42    The argument in CQW17 was that in the circumstances of the appellant’s case the Authority should have, but did not, give consideration to the matters under subpara (b)(ii) in deciding that it was not satisfied that exceptional circumstances exist under para (a): see [50]. That is the argument the Full Court upheld on the evidence in that appeal.

43    For the reasons I have set out above, I have reached the same conclusion in relation to the Authority’s reasoning on the appellant’s review. Indeed the situation is more straightforward than in CQW17 because here, the Authority simply expressed its conclusion that there were no exceptional circumstances to receive the Commission documents, without any explanation as to why the circumstances were not exceptional. In addition to no explanation at all, there was no consideration at all – and no awareness in its reasons as expressed – that if the Commission documents were credible personal information and were not previously known to the delegate, given their close connection to the most serious incident of past persecution claimed by the appellant, they may well have affected the Authority’s consideration of the appellant’s claims. This factor is all the stronger if the appellant had been given an opportunity to explain what happened before the delegate. All this is in circumstances where the Authority was, by the terms of its own reasons, aware that the appellant had expressly given an account that his father took him to the Human Rights Commission. If it had turned its mind to the question, it is inevitable the Authority would have had to accept these documents were capable of corroborating that account. Whether or not they ultimately did so would be a matter for the Authority, but at the threshold stage of s 473DD only one characterisation of their capacity for corroboration was open.

The effect of the misunderstanding

44    This misunderstanding of the breadth of “exceptional circumstances” and in particular the apparent failure to appreciate that whether the Commission documents were likely to be “credible personal information” could, in the circumstances of this review by the Authority, have informed the Authority’s assessment of whether the terms of s 473DD were met, was a misunderstanding which was capable of affecting the outcome of the review. It operated to deprive the appellant of the possibility of a successful outcome on the review. It is plain that the Authority’s finding in [20], and especially the finding that the appellant had “invented” this aspect of his narrative, was material to the Authority’s ultimate conclusion about the level of persecution the appellant had faced in the past and the “profile” which might be attributed to him – in fact or by imputation – by Sri Lankan authorities on his return. The appellant’s narrative about what happened to him in January 2010 was the principal incident of past persecution on which he relied to satisfy the Authority that his fear was well-founded.

45    It is true the appellant submitted the documents to the Authority without any written explanation as to why they had not been submitted to the delegate. The Commission documents were, on their face, created in Sri Lanka at a time well before the appellant left Sri Lanka in September 2012. The evidence is that the appellant made a telephone call to the Authority on 11 August 2016, inquiring about giving additional documents to the Authority, and informing the Authority officer that he had sent them to the department. As I find later in these reasons, since this call occurred through an interpreter, and is based on what an officer at the Authority wrote down, one cannot take the use of the word “sent” literally or strictly. The Authority officer reminded the appellant of the Authority’s Practice Note saying the documents needed to be sent to the Authority. That is what the appellant did. He was self-represented. He did not give any explanation about why the documents were not on his file. It is apparent from the file note which accompanied the documents that the appellant does not have functional English. I infer he was not aware he needed to provide any such explanation: although the information provided by the Authority to referred applicants sets out in substance the content of s 473DD(b), that is of no assistance to self-represented asylum seekers who do not have functional English. It cannot be inferred that this appellant was aware, or had been warned, that the failure to volunteer an explanation could adversely affect the conduct of his review because that failure could be used against him by the Authority. Nevertheless, the fact is, as the Authority stated, that there was no explanation.

46    In the present case, the Authority’s (correct) finding about the absence of an explanation does not answer the question why the matters in s 473DD(b)(ii) did not form part of its consideration of whether there were exceptional circumstances. While an explanation under s 473DD(b)(i) might also be capable of informing the existence or non-existence of exceptional circumstances, the absence of an explanation in the circumstances such as the present did not exhaust all of the circumstances about how and why the appellant came to ask the Authority to look at the Commission documents. As the Full Court said in AQU17 at [15]:

… the question for the Authority was what, if anything, took the circumstances of the appellant’s case out of the usual or ordinary course to justify consideration of the new information.

47    This is especially so in the circumstances of a self-represented applicant without functional English.

48    In my opinion, by not considering the nature of the Commission documents and their potential relevance to the appellant’s claims, on the circumstances of this review the Authority erred in its understanding of the correct approach to exceptional circumstances, and adopted too narrow an approach. The Commission documents were material to its review and its narrow approach to the operation of s 473DD(a) caused the review to miscarry and deprived the appellant of the possibility of a different outcome.

The appellant’s application to add a further ground of appeal

49    At the hearing, counsel for the appellant informed the Court that the appellant had given him instructions that day, for the first time, that the appellant had produced the Commission documents in his interview with the delegate, and was advised that it was not necessary for him to produce the documents and that the delegate would not accept them. Counsel also informed the Court that the appellant had given the Commission documents to his then migration agent to provide to the delegate but his migration agent had failed to do that.

50    Counsel informed the Court, properly, that it would be necessary to obtain a transcript of the delegate’s interview in order to provide a foundation for any further ground of appeal based on those instructions. The appellant was granted leave to file an interlocutory application to add a further ground of appeal, supported by affidavit material. The Minister was granted leave to file any submissions in relation to the proposed new ground.

51    An interlocutory application was filed on 25 June 2019. The ground which was sought to be raised was expressed as follows in the proposed amended notice of appeal:

The decision of the Immigration Assessment Authority (IAA) was vitiated by a constructive failure to exercise jurisdiction, or a failure to perform the ‘review’ required under Part 7AA of the Migration Act 1958 (Cth), in that the Human Rights Commission of Sri Lanka documents which the IAA declined to consider, purportedly under section 473DD of the Migration Act 1958 (Cth), were not in fact ’new information’ because they were referred to, and copies offered, by the Applicant to the delegate, at his interview on 23 June 2016.

52    Submissions were filed on behalf of the appellant in support of the new ground. The Minister filed submissions opposing the grant of leave to raise the new ground, and opposing the substance of the ground. The Minister sought a further oral hearing for argument to be developed about the application and the new ground. That hearing occurred on 2 September 2019. The Minister sought and was granted leave to cross-examine the appellant on his affidavit evidence. The appellant’s oral evidence, including his cross-examination, occurred through an interpreter.

Leave

53    The appellant correctly accepted he requires leave to raise this proposed new ground. The authorities may all vary somewhat in the emphasis placed on various factors to be considered in the grant of leave. As I have noted in previous decisions, ultimately with a broad discretion of this kind, the question is whether it is in the interests of the administration of justice to grant the leave sought. I have set out my opinions on how the discretion should be approached in the context of migration appeals in BKQ16 v Minister for Immigration and Border Protection [2019] FCA 40; 163 ALD 127 at [73]-[76], and also in the cases to which I referred at [73] of that decision. I adhere to that approach.

54    The Minister submits that what is being done by the appellant amounts to a “whole new trial”, on “new evidence” and this should not be allowed to occur in an appeal. This Court is not, the Minister submits, the trial court, which would have been the place to raise such arguments. In principle of course, and in a perfect world, the Minister may well be correct. Of course arguments should be put and tested for the first time at trial. However, justice is not administered within a perfect world. It is administered, especially in the migration jurisdiction, within a world of inequalities and vast disparities in understanding and access to resources.

55    As I have noted in previous decisions, this Court’s ultimate function, even as an appellate court, is to ensure that there is no error in the orders of the primary court, and as part of that function, to be satisfied that the exercise of public power, which has been challenged in the proceeding, was a lawful exercise of public power. If an argument is raised as to why that might not be the case, and there is evidence of an appellant acting improperly, unfairly, and consciously without regard to the need for efficient and effective use of judicial and public resources, then even in the face of an arguable ground, it may be appropriate to refuse leave. That is not this case.

56    The Minister also relied on prejudice to him as a party, but ultimately counsel properly conceded the only prejudice was from the passage of time. However, counsel also properly conceded there was no evidence the delegate had been approached and asked if she recalled the interview, or could give any evidence about it. On that basis, there is no evidentiary basis to support an argument of prejudice by reason of passage of time. Even if the proposed new argument had been made at the Federal Circuit Court, in my opinion, it is highly unlikely that a delegate would have any independent recollection of the conduct of an individual protection visa interview some years prior. The Court has the interview recording and the transcript, which is the best evidence. Counsel added that the Minister made no submissions on the “legal premise” of the appellant’s new ground. I understood this to be an acceptance that the legal argument that the Commission documents would not be “new information” within s 473DC(1) was correct. Counsel submitted that on this ground, the Minister’s sole argument is on the facts.

57    The fact that the appellant was legally represented before the Federal Circuit Court is one factor to be weighed in the exercise of the discretion. It is not determinative. However, I accept that on the evidence it is clear that the appellant did not tell his current legal representative about what had happened before the delegate until the day of the hearing in this Court. For better or for worse, that is the fact. Therefore, the fact that the appellant had legal representation before the Federal Circuit Court is of little weight: no legal representative knew of the underlying factual basis for the argument now advanced. In the present circumstances, I consider the real question is whether the proposed new ground has sufficient prospects of success, when considered against the other factors, to warrant the grant of leave.

58    In my opinion, for the reasons I set out below, it does. Indeed, I have concluded the ground should succeed: in those circumstances, and in the absence of any proven prejudice or proven unfairness or conscious disregard for the matters found in s 37M of the Federal Court of Australia Act 1976 (Cth), it is in the interests of the administration of justice for leave to be granted, and also for leave to be granted to adduce new evidence on the appeal.

The evidence

59    Belatedly, the appellant’s counsel accepted that the appellant required leave to adduce fresh evidence on the appeal, pursuant to s 27 of the Federal Court Act.

60    The Court has the power to permit fresh evidence to be adduced on appeal. While this power is relevantly unconfined, there are well-established principles for the exercise of the Court’s discretion under s 27. I referred to these principles in Chava v Minister for Immigration and Border Protection [2014] FCA 313 at [30]-[31] and I adopt the opinions I expressed in those passages.

61    In respect of the first condition, and as I have dealt with at [57] above, no legal representative was aware of what the appellant claimed had happened until the day of the appeal hearing, nor of the factual basis for the fresh evidence.

62    In respect of the second condition, as I have found on the existing grounds of appeal, the Commission documents had obvious probative value as they corroborated the appellant’s account of what happened to him. In my view, it is therefore appropriate to exercise the discretion to grant leave to adduce the fresh evidence.

63    The evidence relied upon in support of the new ground was:

(a)    Affidavit of Patricia Ng Phaik Kim dated 22 June 2019 annexing a transcript of the delegate interview;

(b)    Affidavit of CVV16 dated 24 June 2019 annexing a translated version of his father’s Human Rights Commission Sri Lanka (HRCSL) letter dated 29 January 2010 and deposing evidence in relation to the assistance he received applying for a protection visa and his recollection of the delegate interview;

(c)    Affidavit of CVV16’s father, whose name should not be reproduced in these reasons, dated 30 August 2019 annexing the untranslated HRCSL letter and HRCSL acknowledgement cards;

(d)    Affidavit of Ganasan Arujunan dated 30 August 2019 annexing an amended part of the transcript of the delegate interview; and

(e)    Supplementary affidavit of CVV16 dated 14 August 2019 further deposing evidence in relation to the delegate interview.

64    There was no challenge by the Minister to the accuracy of the transcript of the delegate interview.

65    The substance of the appellant’s evidence-in-chief (contained in a principal and supplementary affidavit), as it relates to the new ground was:

(a)    He was assisted to complete his protection visa application by a volunteer from an organisation called “The Humanitarian Group”. That person took his statement and filled in the application form for him.

(b)    He gave that person a set of documents, which included the Commission documents.

(c)    The organisation had so many asylum seekers to help that they could not assist him to lodge his visa application within time, and two extensions were sought. Eventually it was lodged on his behalf by that group.

(d)    The appellant deposed that the application the group helped him complete is contained in the Appeal Book, but he also stated “[t]here were a lot of missing information in the application form”. It was not clear what he meant by this evidence: it may be a reference to what the delegate did at the interview, by filling in missing information: see (i) below.

(e)    There is a reference in his protection visa statement (to which I have referred earlier in these reasons) to a Human Rights Commission letter that he would bring to the interview. He deposed that what he was referring to was the English translation of his father’s letter to the HRCSL dated 29 January 2010.

(f)    He deposed (at [16], and [19]-[21]):

I also told the delegate at the SHEV interview that my father took me to Human Rights Commission to lodge a complaint on 29 Jan 2010.

I have now listened to the audio recording of the SHEV interview held 3 years ago, and to the best of my recollection I am quite certain that I tried to give the HRCSL documents to the delegate but the delegate said she had all the documents without even looking at the documents I was trying to give her. At that time my father’s letter dated 29 Jan 2010 to the HRCSL was in Tamil language.

I have now annexed the English translated version of my father’s letter marked JN1. My lawyer pointed it out that the date on the translated copy was written as 09 Jan 2010. This is an error by the translator who has mistaken the date “29” as “09” because of the way my father wrote the no. 2.

I apologise for not being able to state more firmly at what stage of the interview I tried to give the delegate the HRCSL documents.

(g)    In his supplementary affidavit, he deposed that he still has the originals of the HRCSL’s letter of acknowledgement of complaint on 29 January 2010 and the two HRCSL cards. The original of his father’s letter was, obviously, sent to the HRCSL, but the appellant deposed he has the copy his father sent him.

(h)    The four documents were posted to him by his father sometime between July and October 2015. He cannot remember the exact date and month.

(i)    At [5]-[9] of his supplementary affidavit, the appellant gave evidence about what happened at the interview:

At some point during the interview on 23 June 2016, the interviewer said there was some information missing in my application.

The interviewer then stopped the recording. She went through the application form and was asking me questions and filling in the missing information while I was answering.

At that time, the interviewer had documents spread out on the table nearer to her. These included copies of documents which I had given to the Humanitarian Group, and looking at the documents I did not see the HRCSL documents I referred to above (AB 232-237).

I remember showing her the HRCSL documents, including a copy of my father’s letter sent to HRCSL (in Tamil), but she didn’t take them and told me she already had everything. But I can’t remember exactly when this happened.

At the end of the interview, she said I could send documents but I didn’t send these documents to her because I already tried to give them to her at the interview and she said she had them, so I assumed she had them.

66    The stopping of the tape, and the delegate saying she needed more information, appears on the transcript adduced in evidence.

67    There was also an affidavit from the appellant’s father. Although he generally opposed leave to raise the new ground, the Minister did not object to that affidavit being read. The material evidence given by the appellant’s father was that he gave his son the Commission documents in 2015, which I accept is consistent with the appellant’s evidence that he had them in the delegate interview.

68    As I have noted, the appellant was cross-examined. There was a direct attack on his credibility and reliability. I do not consider it was successful. I observed the appellant carefully, and I consider he was doing his best to answer honestly. I accept at times it was evident that the appellant was attempting to piece together, from his memory, the sequence of events on the day of the delegate interview. Contrary to the Minister’s submissions, that does not lead inevitably to the conclusion that the appellant was giving a reconstructed account rather than one which came from his actual memory. It simply means he was being careful, and taking some time, to use his memory to recall what happened. I do not accept the Minister’s criticism of his evidence, or the very fine distinctions the Minister sought to make in submissions about what the appellant said: the Minister’s criticisms were all based on what were, in my respectful opinion, quite confusing questions in cross-examination, even accepting the challenge of cross-examining through an interpreter.

69    On the fundamental aspects of his evidence, which are all that matter for present purposes, I am prepared to accept his evidence.

70    The appellant was also cross-examined about the Authority file note (see [45] above). I do not accept that the file note can be taken as literally probative of what is written there: the appellant was speaking to the Authority officer through an interpreter. At best, the file note records what the Authority officer wrote down, based on what the interpreter said. It is not a direct account of anything said by the appellant. In any event, the appellant’s evidence was that when he made the call, he had the documents there with him, and because they had not been accepted by the delegate, he wanted to give them to the Authority. I accept that evidence over the literal words in the file note that the appellant told the officer he “sent” the Commission documents to the Department.

71    The appellant made appropriate concessions when he could not recall something. He did not exaggerate. He answered directly and did not avoid any questions. I take into account that he was being cross-examined through an interpreter, which makes the process harder for both the questioner and the witness. However, in my opinion the appellant was an honest witness who was giving evidence from his actual recollection of what occurred at the delegate interview. It was a critically important day in his life after his arrival in Australia. I am satisfied on the balance of probabilities that he gave an honest account of what he did, in fact, recall of that interview.

72    The Minister’s initial cross-examination about the appellant’s English language abilities appeared to be directed at suggesting that he should have been able to give evidence in English. I reject any such assertion or suggestion, not that any submissions were ultimately made by the Minister on that account. However, that could have been the only relevance of the cross-examination. In a matter as important as this, where the appellant has English as (at best) a second language, where a transcript is being kept and the appellant’s evidence will be scrutinised, I have no difficulty whatsoever with the appellant giving his evidence in Tamil through an interpreter. It is appropriate.

73    In cross-examination, the appellant clearly responded to questions about the period when the recording was switched off. I accept what the appellant says about the delegate stopping the recording, and about the delegate asking him not to answer while the recording is on. That is when the appellant stated he told the delegate about the documents: that is, when the recording was not on. I accept that evidence. The appellant was clear in his evidence under cross-examination that he did attempt to give the Commission documents to the delegate. I watched him carefully as he gave this evidence, including the hand gestures he made when he was describing what he did, and I am persuaded he was reliably remembering what happened before the delegate and how he tried to give the Commission documents to the delegate. The appellant explained that the delegate did not accept the letter in Tamil, and he did not know of any places where he could get it translated. It should be recalled that the appellant was not represented at this time. In my opinion, he was frank about conceding he did not have the English translation of his father’s document.

74    The Minister made something of the fact that what the appellant sought to give the delegate, on his account, was a letter in Tamil from his father, without an English translation. The Minister submitted that even if the appellant’s ground could otherwise succeed on the facts and the law, the undisputed fact that the letter was only in Tamil meant that it could not have been material, in the sense explained in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 93 ALJR 252 at [45]-[46], and therefore no relief should be granted.

75    There are two difficulties with this submission. First, the new ground concerns whether the Commission documents were, objectively, “new information”. If they were not, then provisions of Pt 7AA constraining whether the Authority could consider them did not apply. Second, as the appellant submitted, even the Tamil version had probative value. That was because it bore a date stamp. The date was capable of corroborating the appellant’s narrative, as given to the delegate and as it was before the Authority. Even though the letter was in Tamil, it had probative value.

76    In summary, I accept the appellant’s evidence that he took the Commission documents with him to the delegate interview and attempted to give them to the delegate, but she did not take them. I find therefore the Commission documents were not placed on the departmental file, and for that reason they were not forwarded with the file to the Authority. I find the appellant attempted to place them before the Authority, including by contacting the Authority by telephone through an interpreter, but his attempt was rejected.

The legal argument

77    As the appellant submitted, in DTK17 v Minister for Immigration and Border Protection [2018] FCAFC 170 at [38], the Full Court held that the words “before the Minister” in s 473DC(1)(a) do not connote constructive knowledge or possession but mean “physically before the Minister” as distinct from “in the Minister’s control”. However, as the appellant further submitted, the facts in that appeal were quite different, and the question posed by the present factual situation is not answered by DTK17.

78    In the present situation, on the basis of the appellant’s evidence which I have accepted, I find that the Commission documents were “before the Minister” for the purposes of s 473DC(1)(a), because the appellant attempted to give them to the delegate, and, in his words, “showed them” to her. They were, in a relevant sense, physically before the delegate. It was not within the appellant’s control whether the delegate kept them and placed them on the file. As it turns out, on his evidence (which I accept), she did not.

79    The purpose of the new information provisions is, in my opinion, consistent with the approach I have taken. Those provisions are designed to encourage (through subsequent prohibition) visa applicants to bring forward all relevant information at the first level consideration of their visa applications. They do not have any punitive purpose. The provisions are also designed to limit the amount of information before the Authority, so as to facilitate the “fast track” nature of the Authority’s process. I do not consider Parliament intended to require the additional hurdles in the new information provision to have to be met in circumstances where a delegate elected to refuse information proffered by a visa applicant. I do not consider Parliament contemplated that a delegate might refuse to accept relevant information. To the contrary, such information is, in its timing and purpose, no different from information the delegate accepted.

80    I also accept the appellant’s submissions that an Authority review can be vitiated through no “fault” of the Authority itself: see EVS17 v Minister for Immigration and Border Protection [2019] FCAFC 20; 163 ALD 422. In the circumstances, the Commission documents were probative of, and material to, the appellant’s claims, and were capable of corroborating important and central aspects of his narrative about what had happened to him in Sri Lanka. In failing to consider them, because it found them to be new information and therefore found they could not be considered unless the additional hurdles set out in s 473DC were met, the Authority exceeded its jurisdiction. That is because, objectively, the documents did not fall within the definition of new information in s 473DC(1)(a). The two limbs of the definition in s 473DC(1) are cumulative.

81    Alternatively, if I am wrong in my reasoning and conclusion about the Commission documents falling outside the definition of new information, then the appellant would nevertheless succeed on his original ground of appeal.

Other matters

82    I reject the Minister’s argument about the relevance of the Authority’s ultimate adverse finding, at [20] of its reasons, to the question whether the Authority misunderstood its task in assessing exceptional circumstances for the purposes of the discretion in s 473DD(a) of the Act. The Minister appeared to contend that where, in [7] of its reasons, the Authority states that it had considered the “totality of the evidence”, the Court should read this as in part a reference to its adverse findings about the January 2010 incident. The argument appeared to be that the Authority had, in deciding not to exercise the powers in s 473DC and s 473DD, formed a view adverse to the appellant’s claims about this incident based on other material. With respect, this turns the analysis on its head.

83    The “exceptional circumstances” to which s 473DD(a) refers are circumstances which exist at a time prior to the completion of the review by the Authority, and which must relate to circumstances relevant to the consideration of new information by the Authority. Axiomatically, the consideration in s 473DD is occurring at a time prior to the Authority having reached any concluded view on the outcome of the review, and on whether any of a person’s claims (and the narrative supporting those claims) should be accepted.

84    Therefore, any concluded findings expressed in the Authority’s reasons, explaining the decisions it has reached, cannot inform an assessment of what the Authority considered to be the appropriate exercise of power in s 473DC and s 473DD, and whether it correctly understood the nature of the power conferred on it. Otherwise, that would involve the Authority prejudging the outcome of the review and using that prejudgment to determine how to exercise an important power which forms part of the review process itself.

Conclusion

85    The appeal will be allowed and the matter remitted to the Authority for consideration according to law. The usual orders as to costs should be made on the appeal, and in the Federal Circuit Court, although costs should be fixed by way of a lump sum.

Associate:

Dated:    15 November 2019