FEDERAL COURT OF AUSTRALIA

BMA16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1938

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent is changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2.    The appeal is dismissed.

3.    The appellant pay the first respondent’s costs of the appeal, to be assessed in default of agreement in accordance with the court’s Costs Practice Note (GPN-COSTS).

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

REASONS FOR JUDGMENT

SNADEN J:

1    The appellant is a citizen of Sri Lanka. He is a Hindu of Tamil ethnicity who hails from Batticaloa, in Sri Lanka’s Eastern Province. He arrived in Australia by boat on 20 September 2012 as an unauthorised maritime arrival (within the meaning since attributed to that phrase by s 5AA of the Migration Act 1958 (Cth)—hereafter, the “Act”).

2    By an application dated 24 September 2015, the appellant applied under the Act for a safe haven enterprise visa (hereafter, the “Visa Application”). He was invited to attend—and, on 11 December 2015, attended—an interview with a delegate of the first respondent (hereafter, the “Minister”), at which he advanced submissions as to why his Visa Application should succeed. On 5 May 2016, a delegate of the Minister dismissed the Visa Application (hereafter, the “Delegate’s Decision”).

3    The Delegate’s Decision was then referred to the second respondent (hereafter, the “Authority”) for review pursuant to the provisions of Pt 7AA of the Act (hereafter, the “IAA Review”). On 1 June 2016, the Authority affirmed the Delegate’s Decision (that decision is referred to, hereafter, as the “Review Decision”). On 16 June 2016, the appellant applied to the Federal Circuit Court of Australia (the “FCCA”) seeking prerogative relief directed to the Review Decision (that application is referred to, hereafter, as the “Judicial Review Application”). On 8 March 2019, the FCCA dismissed the Judicial Review Application: BMA16 v Minister for Immigration & Anor [2019] FCCA 552 (Judge J D Wilson) (hereafter, the “FCCA Judgment”).

4    The appellant now appeals the FCCA Judgment. He asks that the orders of the FCCA be set aside, and that, in their place, this court grant relief in the nature of writs of certiorari and mandamus to quash the Review Decision and require that it be determined according to law. He also seeks an order that the Minister pay his costs of and incidental to both the appeal and the Judicial Review Application.

The statutory framework

5    Section 5 of the Act relevantly defines a “fast track applicant” and a “fast track decision” as follows:

fast track applicant means:

(a)    a person:

(i)    who is an unauthorised maritime arrival and who entered Australia on or after 13 August 2012, but before 1 January 2014…; and

(iii)    who has made a valid application for a protection visa…

fast track decision means a decision to refuse to grant a protection visa to a fast track applicant…

6    Section 5AA defines what is meant by the phrase “unauthorised maritime arrival”. It is not in doubt that the appellant qualified as such.

7    Section 35A defines what is meant by the phrase “protection visa”:

(1)    A protection visa is a visa of a class provided for by this section.

…

(3A)    There is a class of temporary visas to be known as safe haven enterprise visas…

8    Section 36 of the Act nominates criteria that an applicant must meet in order to be granted a protection visa. Two such criteria are of present relevance. The first—for which s 36(2)(a) provides—is that the applicant is “a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee”. The second—for which s 36(2)(aa) provides—is that the applicant is “a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm”. “[R]efugee” and “significant harm” are defined terms; but it is not presently necessary to consider those (or related) definitions. The obligations to which s 36(2)(aa) are often (and, hereafter, will be) referred to as obligations of “complementary protection”.

9    There is no dispute that the appellant is (and was) a fast track applicant and that the Delegate’s Decision was a fast track decision. Subject to presently irrelevant exceptions, Pt 7AA of the Act provides for a framework pursuant to which fast track decisions are to be reviewed. Relevantly, it provides for:

(1)    the automatic referral to the Authority of fast track decisions (s 473CA);

(2)    a corresponding obligation, conferred upon the Authority, to review what is referred (s 473CC);

(3)    the provision to the Authority of certain material relevant to fast track decisions that are referred to it for review (s 473CB);

(4)    the abolition, in relation to decisions referred to the Authority for review, of what would otherwise be the requirements of the natural justice hearing rule (s 473DA);

(5)    an obligation, conferred upon the Authority, to conduct any such review on the basis of the material provided to it under s 473CB (473DB);

(6)    the procurement of “new information” (s 473DC); and

(7)    the limited circumstances in which regard may be had to any new information so procured (s 473DD).

10    The latter two provisions are of relevance to the present appeal. Sections 473DC and 473DD provide as follows:

473DC   Getting new information

(1)    Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:

(a)    were not before the Minister when the Minister made the decision under section 65; and

   (b)    the Authority considers may be relevant.

(2)    The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.

(3)    Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:

   (a)    in writing; or

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

473DD   Considering new information in exceptional circumstances

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

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

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

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

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

The Visa Application

11    The appellant made a number of representations in support of his Visa Application. Those allegations centred upon his claim that he had been embroiled in a dispute with a local businessman, D. D, the appellant claimed, was the proprietor of a liquor store in the appellant’s home town. That store had been the subject of some complaints from members of a nearby Hindu Temple, on the managing committee of which the appellant served. The appellant was part of a group that requested that D close his shop at particular times, or otherwise require that his customers not consume the alcohol that they purchased from it in such close proximity to their temple. Those circumstances, so the appellant contended, snowballed into a “big argument”.

12    In or around 2011—the precise timing is unclear—D’s liquor store and some other premises that D owned were apparently the target of an arson attack, for which D (or his associates) held the appellant responsible. The appellant maintained that he was not the one who burnt down D’s liquor store; but, he said, he was approached on the night of the attack by strangers who asked him for some petrol (which he did not provide).

13    The appellant claimed that, after the fire, he was arrested and held in custody for eight days. In the statutory declaration that he advanced in support of his Visa Application, the appellant stated as follows:

21.    When the police interrogated me, I told them the truth – that some people had asked me for petrol but I didn’t have any. But the police were suspicious of me and questioned me more. They put me in prison for 8 days. Three other people were also arrested but they were only kept for a few days. During that time, the case went to court. The result from the court was that I was innocent. I was released from prison and I returned home to my family.

14    The appellant said that, shortly after his release from custody, he was accosted at his house by people unknown to him, who accused him of burning down D’s shop. He claimed that, over the ensuing months, people continued to come to his house and harass him and his parents, shouting bad words and making threats against him. On one occasion, he claimed, he was assaulted with a tree branch and cut with a knife.

15    It was as a result of that harassment, the appellant explained, that he fled Sri Lanka. He said that he could not return because he would be killed or seriously harmed by D (or his associates) if he did. He claimed that the police in Sri Lanka would not afford him adequate protection because D is wealthy and well-connected. He explained that he was unable to relocate to another part of Sri Lanka because he has no relatives elsewhere and would be considered suspicious as an outsider.

The Review Decision

16    The Authority did not consider that the appellant provided a “credible, detailed or plausible account of the events which he sa[id] led to his decision to leave Sri Lanka.” Principally in light of that conclusion, it rejected several aspects of the narrative that the appellant advanced in support of his Visa Application. In particular, it did not accept:

(1)    that the appellant had a significant role to play in any dispute that arose between D and the local temple committee;

(2)    the appellant’s account of the fire that destroyed D’s shop, including that strangers had asked the appellant for petrol on the night that the fire occurred and that the appellant had been unaware of it until the next morning;

(3)    that the appellant had been charged with arson in connection with that fire;

(4)    that the appellant had been accused of arson (whether by D or others); or

(5)    that D (or his associates) had threatened (or, perhaps after an initial, “unspecified” threat, had continued to threaten) the appellant after the alleged fire.

17    The Authority cited a number of reasons why it did not consider the appellant to be credible. Included amongst them was what the Authority described as contradictions and deficiencies in the evidence that the appellant advanced in support of his Visa Application. The following passages from the Review Decision disclose the Authority’s reasoning in that regard (references omitted):

14.    At the [Safe Haven Enterprise Visa (hereafter, “SHEV”)] interview the [appellant] was able to provide a reasonably detailed and spontaneous account of some matters, for example, about his family life, his work in Qatar and his life in the village. He was able to provide a plausible account of the selection of members of the temple committee and their functions. I am prepared to accept that he was a member of the temple committee, and note that there were thirty or forty members of the committee, from the four areas of the village. I am also prepared to accept that there was a dispute between the temple committee and the owner of a liquor store located near the temple. I do not accept that the [appellant] had a significant role on the temple committee, or in the management or evolution of the dispute. This is because at the SHEV interview he was asked a number of questions about the process of the dispute and the steps that were taken at various stages to resolve it, including the preparation of a petition. In my view the [appellant] was unable to provide the kind of information about this process which could be expected of a person who had played a significant role in it. For example, he was unable to say to whom the petition was to be delivered; if it was delivered; or whether the temple head had involved the village head or other authorities, and if not, why not. The reason he gave was that these matters were not part of his duties on the committee; indeed, he indicated that he was given only “small jobs” and could not go beyond these small jobs that he was specifically asked to do. It thus seems unlikely, based on the [appellant]’s own evidence, that he had any role in the creation of the petition or in ongoing negotiations with the shop owner, and I do not accept that he did.

15.    I have significant doubts about the [appellant]’s account of the fire. Firstly, I have serious doubts about the claim that people who intended to set fire to a property would call at the nearby home of a stranger and ask for petrol with which to do so – which is what the [appellant] seems to be suggesting as the motivation for the request for petrol by unknown people on the night of the fire. Secondly, I find it difficult to accept, as he stated at the SHEV interview, that the [appellant] could have been unaware of a fire that destroyed two shops located about one hundred metres from his house until the next morning, as he claims.

16.    The [appellant] has provided inconsistent accounts of the circumstances of the other people who he claims were arrested, along with him, after the fire. In his statutory declaration he stated that three other people were also arrested but they were released after a few days. At the SHEV interview he said that the other people were also put in gaol, and when asked if they went to court at the same time as he did, he replied “the first two times they did not attend court, after that they did”. While the meaning of this response is not entirely clear, it seems that the [appellant] is suggesting that the other people arrested were also taken before a court, contrary to the claim in the statutory declaration that they were released after a few days and he was the only one charged. Also of concern for his overall credibility is his subsequent statement that he did not know if those three people had been harassed (as he claims he was) after the conclusion of the police investigation. As discussed with him by the delegate, it seems highly implausible that in a small village, people who were members of the temple committee and who were accused of arson by someone with whom the temple committee was in dispute, would not discuss or be aware of significant ongoing threats or harassment levelled against them which were apparently connected with the dispute.

17.    The [appellant] stated that after he was acquitted by the court he continued to operate his business as a three wheeler driver, but said that because of the threats of harm from the shop owner he was no longer a part of the temple committee and he did not go out very much, for his own protection. In my view these claims are not credible. If a person in the village had called in outsiders to harm the [appellant], it would seem that they had every opportunity to do so while he was out driving his three wheeler. Given his claim that they knew where he lived and that he faced threatening visits at his home, it seems illogical and implausible that he would seek to avoid harm from those people by staying at home, when he continued to go to work in a job which involves picking up strangers, alone, and driving them to the location of their choice.

18.    Finally, at the SHEV interview the [appellant] was unable to state with certainty when any of the relevant events happened. He stated that he was elected to the temple committee variously in June 2010, 2011 and 2012. He was not able to say when the fire was; when he was arrested or taken before the court and acquitted; or when the first threatening visit to his home took place. In the entry interview he stated that he was charged with burglaries in 2012. In the SHEV application form he stated that he was charged with arson in 2011. The statutory declaration submitted with the SHEV application, while vague as to dates, indicates that the fire, the charges and the acquittal all happened in 2011; he also indicated that he went before the court and was acquitted within days of his arrest. At the SHEV interview he appeared to suggest that the fire and subsequent events were in 2012, although he also indicated that they could have been in 2011. At one point he appeared to state that he had been required to report to the court for several months before finally being acquitted. When questioned extensively by the delegate as to the order of the various events and when they occurred, he was simply unable to provide a coherent or consistent account. Generally he responded that he did not know when events occurred, and said that his mind was not working; however, up [until] that point in the interview he appeared to have been able to provide most of the information sought. I accept that it can be difficult to provide dates for events that happened years ago, however the [appellant] was also unable to piece together a coherent account of how the various events were related to each other and in what order they occurred; nor was he able to provide relative times for the occurrence each event. For example, he was completely unable to say how long it was between his arrest and his acquittal. In my view, these two events are so crucial to his claims and indeed to his history, that it is difficult to imagine that he would not be able to work out the approximate time period between the two events, in circumstances where I consider he was given every opportunity to do so. As noted above, in the statutory declaration he indicated that it was a matter of days, while at the SHEV interview he suggested that it may have been months. Overall, the [appellant]’s almost complete inability to respond to the delegate's questions about the timing of the key events casts serious doubt in my mind as to his overall credibility.

19.    At the SHEV interview he showed the delegate a number of untranslated documents that he indicated had been obtained in October 2012, after he left Sri Lanka, and which were emailed to him in Australia. He did not explain why the documents were not submitted with his SHEV application. The delegate spent some time with the [appellant] and the interpreter trying to understand what the documents were. It seems that they were of poor quality and barely legible. It is not clear what language the documents were in or whether the interpreter would have been able to translate them, but the [appellant] was not able to explain what any of the documents were. While some contained dates, or multiple dates, these did not cast any light on the chronology of the [appellant]’s account. For example, he was asked about one of the documents dated 1 October 2012 and said firstly that this was the date the document was provided, and then that this was the date on which he was acquitted by the court, and this document had been given to him by the court on that date. He acknowledged, however, that he had left Sri Lanka by then. He also indicated that another date visible on one of the documents – August 2012 – might have been the date of his acquittal, however given that he left Sri Lanka on 4 September 2012, if this were the case it would cast doubt on his claims about having been subsequently harassed over a long period of time between his acquittal and his departure. He was requested by the delegate to provide translations of the documents if he wished to rely on them, but he did not do so. While I have had regard to these documents in so far as they might have potentially cast light on some of his claims, unfortunately they provide no clarity and do not assist in making sense of the [appellant]’s own account. Nor do they provide corroboration of any aspects of the [appellant]’s account.

20.    With his SHEV application the [appellant] provided a translation of a “Report on complaint made for self safety” made to the Kattankudy police station. The report was issued on 15 October 2012, and stated that the [appellant] had complained to police on 16 June 2011 that his mother had told him that an unknown person had asked for him when he was not at home, and told him to meet the person at a certain beach; the person had said that if the [appellant] failed to do so they would come to his house and drag him away. The [appellant] stated that when he had complained to the police they had taken no action, but as pointed out at the SHEV interview, it would appear that this report would not have given the police sufficient information with which to conduct an investigation into the alleged incident. I have considerable doubts as to the authenticity of this report. It was issued after the [appellant]’s departure from Sri Lanka so appears to have been obtained for the purpose of his asylum application. While that alone does not preclude it being a genuine document, it strikes me as odd that the [appellant] would lodge a police report in such vague terms about an incident, which on the face of the report hardly seems to indicate a serious threat of harm, or any basis on which the police could reasonably be expected to take action.

21.    Overall, I am not satisfied that the [appellant] has provided a credible account of having been subjected to harm or any serious threat of harm prior to his departure from Sri Lanka. I do not accept that he was personally involved with the dispute between the temple committee and the liquor shop owner. I do not accept his account of the fire. Nor do I accept he was charged with arson and acquitted. The police report provided by the [appellant], at its highest, indicates that the [appellant] may have received an unspecified threat from an unknown person in June 2011. Because of the many deficiencies in his account, I am not prepared to accept that the threat arose in the circumstances claimed by the [appellant] – I do not accept that he was accused of arson, having been involved as a member of the local temple committee in a dispute with a local liquor shop owner. Nor do I accept that the liquor shop owner continued to threaten and harass the [appellant] thereafter, or that he hired people to do this. Whatever the basis of the threat from the unknown person in June 2011, the [appellant] continued to work as usual up until his departure from Sri Lanka on 4 September 2012, more than one year later. Given that he worked as a three wheeler driver, I find that there would have been ample opportunity for anyone who wished to harm the [appellant] to do so. I do not accept that he faced any subsequent threats which fed to his decision to leave.

18    As a consequence of its rejection of significant parts of the narrative that the appellant advanced in support of his Visa Application, the Authority determined that he was neither a refugee nor somebody to whom Australia owed obligations of complementary protection. For those reasons, it affirmed the Delegate’s Decision.

The decision of the FCCA and the present appeal

19    By his Judicial Review Application, the appellant alleged in the FCCA that the Review Decision was the product of jurisdictional error. Four species of jurisdictional error were alleged. It is not necessary to here set them out, save to note that they align with the species of error that are contemplated by the grounds that are advanced in the present appeal.

20    The FCCA did not accept that the Review Decision was tainted by any of the various instances of jurisdictional error that were alleged by the Judicial Review Application. By the present appeal, the FCCA is said to have erred by not accepting that the Review Decision was so tainted. That being the case, it is not necessary to recite the conclusions of the FCCA: if it is the case that the Review Decision was not the product of jurisdictional error as was (and still is) alleged, then the FCCA will have been correct to have so decided and the appeal will fail; if the Review Decision was attended by that species of error, then the FCCA will have erred by concluding otherwise and the appeal will succeed. Either way, it is upon the Review Decision that this court’s attention must focus.

21    By his notice of appeal, the appellant sought to advance the following four grounds of appeal (errors original):

1.     The Federal Circuit Court at first instance erred in not finding that the Second Respondent (“the Authority”) erred in the exercise of its power under section 473DC of the Migration Act 1958 and thereby erred in interpreting or applying the law, and failed to exercise its jurisdiction, or erred in the exercise of its jurisdiction, to review the decision of a delegate of the First Respondent.

Particulars

(a)    The Authority did not exercise its power under section 473DC of the Migration Act 1958 to invite the Appellant to an interview or otherwise to get new information from the Appellant about his claims, when the credibility of the Appellant was critical to the Authority’s decision, the Appellant was not represented before the Authority, and the meaning of some of the Appellant’s evidence referred to the Authority was not clear to it. (Authority’s Decision and Reasons, [13]-[21], Court Book at first instance (“CB”) 158 – 161)

2.     The Federal Circuit Court at first instance erred in not finding that the Authority erred in the exercise of its power under section 473DC of the Migration Act 1958 and thereby denied the Appellant natural justice or procedural fairness.

Particulars

(a)     The Appellant refers to and repeats Particular (a) to Ground 1 of this notice of appeal.

3.     The Federal Circuit Court at first instance erred in not finding that the Authority failed to have regard to relevant considerations including relevant information.

Particulars

(a)    In assessing the Appellant’s credibility, the Authority said, “it seems the [appellant] is suggesting that the other people arrested were also taken before a court, contrary to the claim in the statutory declaration that they were released after a few days and he was the only one charged.” (Emphasis added. Authority’s Decision and Reasons, [16], CB 159) This statement shows that the Authority failed to have regard to the exact terms of the statutory declaration which said nothing about whether the other people were charged, but which relevantly said in part:

“They put me in prison for 8 days. Three other people were also arrested but they were only kept for a few days. During that time, the case went to court. The result from the court was that I was innocent. I was released and I returned home to my family.” (CB 62, [21]

4.     The Federal Circuit Court at first instance erred in not finding that the Authority fell into jurisdictional error in that it was unreasonable or acted without logically probative evidence.

(a)     The Appellant refers to and repeats the Particulars to the other Grounds of this notice of appeal.

(b)     The Authority was unreasonable in not accepting the Appellant’s account of the fire, because the Authority’s rejection of that account was based not on evidence but on the assumptions or implicit findings that there was not a real chance “that people who intended to set fire to a property would call at the nearby home of a stranger and ask for petrol with which to do so”, and that there was not a real chance “that the [appellant] could have been unaware of a fire that destroyed two shops located about one hundred metres from his house until the next morning, as he claims.” (Authority’s Decision and Reasons, [15], [21], CB 159, 161)

22    He also seeks leave to agitate a fifth ground—or, more accurately, to add a new particular to existing ground 3, namely that:

(b). The Authority did not consider and made no finding on the Appellant’s claim that “…two people came to the house and called for me….. Then they started hitting me with a tree branch and they cut me with a knife.” (AB 87, [26])

This was an important claim as it was the reason the Appellant said that he and his mother decided he should leave Sri Lanka. (AB 167, [73])

23    For the reasons that follow, I would grant the appellant leave to argue the additional particular to ground 3 (as set out above) but would reject each of the four discrete grounds that are advanced (and, in doing so, dismiss the appeal with costs).

Ground 1: Unreasonable failure to get new information

24    By his first ground of appeal, the appellant contends that the Authority, when conducting the IAA Review, ought to have exercised the power conferred upon it by s 473DC to get “new information” concerning the claims advanced in support of the Visa Application. Its failure to do so, it is said, amounted to legal unreasonableness in the sense identified by the High Court in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (“Li”) (French CJ, Hayne, Kiefel, Bell and Gageler JJ). So the contention continued, that failure bespoke jurisdictional error on the part of the Authority; and the FCCA was said to have erred insofar as it concluded otherwise.

25    By way of elaboration upon this ground, the appellant referred to the observations that the Authority made about the evidence that he gave in support of his Visa Application. As is apparent from the lengthy passage recited at [17] above, the Authority considered that there were aspects of that evidence that were unclear or otherwise deficient, and that those were matters that reflected poorly upon the appellant’s credibility. That being so—and given that the appellant was unrepresented at the Delegate Interview—it is said that the Authority ought to have exercised (indeed, had it been acting reasonably, would have had no option but to exercise) the discretion conferred upon it by s 473DC of the Act. It ought to have done so, so the contention continues, by inviting the appellant to an interview and giving him an opportunity to elaborate upon the evidence that he had, to that point, given in support of his Visa Application.

26    In BJK17 v Minister for Citizenship, Migrant Services and Multicultural Affairs [2019] FCAFC 171 (Middleton, Bromberg and Snaden JJ), the full court made the following relevant observations:

41    Powers conferred by statute must, ordinarily, be exercised reasonably: Li, 351 [29]-[30] (French CJ), 362 [63] (Hayne, Kiefel and Bell JJ), 370 [88]-[89] (Gageler J). The power conferred upon the Authority by s 473DC to get “new information” is subject to that requirement: Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 353 ALR 600 (“M174”), 607 [21], 613 [49], 618 [71] (Gageler, Keane and Nettle JJ), 620-621 [86] (Gordon J), 624 [97] (Edelman J); DPI17 v Minister for Home Affairs (2019) 366 ALR 665 (“DPI17”), 667 [36] (Griffiths and Steward JJ), 689 [91] (Mortimer J). There are no fixed categories of circumstances by reference to which a failure to exercise, or consider exercising, the discretion might be impugned as legally unreasonable: CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641, [42] (Thawley J). Rather, an assessment of whether, in any given case, the exercise or non-exercise of the discretion is attended by legal unreasonableness must, of necessity, be case-specific: Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437, 445 [42] (Allsop CJ, Robertson and Mortimer JJ). A decision will not be impugned as legally unreasonable simply because it is one about which different minds might form different views: Plaintiff S111/2017 v Minister for Immigration and Border Protection (2018) 263 FCR 310, 328 [66] (Perry J, with whom McKerracher and Charlesworth JJ agreed).

42    In DPI17, this court considered the boundaries of legal unreasonableness within which the Authority is constrained when exercising power under Pt 7AA of the Act. Griffiths and Steward JJ, referring to the plurality judgment in M174, listed (at [35]) six relevant propositions, namely that:

(1)     as stated in the simplified outline of Pt 7AA in s 473BA of the Act, Pt 7AA provides “a limited form of review” of a “fast track decision” which is constituted by a refusal to grant a protection visa to an applicant who is statutorily designated to be a “fast track applicant” (at [1]);

(2)     the task of the IAA in conducting a review of a fast track reviewable decision is not to correct error on the part of the Minister or a delegate, but rather the IAA “is engaged in a de novo consideration of the merits of the decision that has been referred to it.” The IAA must consider the application afresh and determine for itself whether the criteria for the grant of the visa have been satisfied (at [17]);

(3)     the various powers conferred upon the IAA by Div 3 of Pt 7AA (including s 473DC) are conferred on the implied condition that they are to be exercised within the bounds of reasonableness, as explained in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 (Li) (at [21]);

(4)     the term “new information” must be read consistently when used in ss 473DC, 473DD and 473DE “as limited to ‘information’ (which may or may not be recorded in a document), in the ordinary sense of a communication of knowledge about some particular fact, subject or event, that meets the two conditions set out in s 473DC(1)(a) and (b).” These two conditions are that the information was not before the Minister or delegate when the protection visa decision was made, and the IAA considers the information to be relevant (at [24]);

(5)     although there is no general requirement for the IAA to give to the applicant material provided to the IAA by the Secretary (s 473DA(2)), there is nothing in Pt 7AA to preclude the IAA from giving the whole or some part of that material to the applicant in the context of exercising the power under s 473DC(3) to invite the giving of new information and s 473DA(2) does not address what may be required of the IAA in particular circumstances in order to exercise that power reasonably ([26]); and

(6)     s 473DE is concerned to ensure that the referred applicant has an opportunity to address new information that has been, or is to be considered by, the IAA under s 473DD and that would be the reason, or a part of the reason, for affirming the fast track reviewable decision (at [35]).

43    Their Honours then (at [37]) added a further four observations on that theme:

…First, legal unreasonableness is “invariably fact dependent and requires evaluation of the evidence” (see Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 (Singh) at [47] per Allsop CJ, Robertson and Mortimer JJ and see also SZVFW at [84] per Nettle and Gordon JJ). Secondly, the correct approach is to apply the relevant general principles to the particular factual circumstances of the case and not to engage in an analysis which merely involves identifying particular factual similarities or differences between individual cases (Singh at [48] and Haq at [32]). It may well be that, for this reason, the appellant made clear that, on the appeal, he did not rely on DFW16. As Thawley J pointed out in CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 (CCQ17) at [42], there are no fixed categories of circumstances in which it would be legally unreasonable to fail to consider the discretion in s 473DC. Thirdly, having regard to the clear terms of s 473DA (which provides that Div 3 of Pt 7AA and ss 473GA and 473GB are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to IAA reviews), the starting point for analysis in a case such as this which raises the ground of legal unreasonableness is not through a “natural justice lens” (DGZ16 at [69] and [72] per Reeves, Robertson and Rangiah JJ). Fourthly, as Thawley J correctly stated in CCQ17, merely because there has been a failure to consider the exercise of the power in s 473DC does not of itself involve error, let alone a jurisdictional error.

44    The issue, in the present case, is whether the Authority’s failure to get, or consider getting, “new information” was outside of its “decisional freedom”: Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158, 171 [62] (Allsop CJ, Griffiths and Wigney JJ). If the only course reasonably available to the Authority in the circumstances that confronted it was to get or consider getting new information from the Father, then its failure to do so will bespeak legal unreasonableness and its ultimate decision might be impugned as the product of jurisdictional error. The task, as Thawley J put it in CCQ17 (at [51]), is to:

…evaluate the failure to see whether it has the character of being legally unreasonable, perhaps in lacking a rational foundation or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking in common sense.

27    That case was decided after the hearing in the present appeal; but the principles there recited are neither new nor obviously in doubt. In order to impress legal unreasonableness upon the Authority’s failure to afford the appellant an opportunity to provide new information in support of his Visa Application, the appellant must demonstrate that that failure was outside of the Authority’s “decisional freedom”: in other words, that the Authority, had it acted reasonably, could have adopted no other approach than to exercise its discretion.

28    I accept, as counsel for the appellant urged, that there are circumstances inherent in this case that incline (or might incline) in favour of an exercise of the discretion for which s 473DC of the Act provides. Chief amongst those are that the appellant was unrepresented at the Delegate Interview, that new information might have assisted the appellant to avoid the adverse credibility findings that the Authority made, and that an exercise of the discretion would likely not have involved any great burden upon the Authority. The potentially significant consequence for the appellant—resulting, as it did, in the rejection of his Visa Application—is another such circumstance.

29    I do not, however, accept that those considerations are sufficient to clear the high hurdle that the appellant must clear in order to succeed on this ground. There are other factors that make clear that the Authority’s failure in this case to get or consider getting new information was within a course that was reasonably open to it (that is to say, was not a course attended by legal unreasonableness). Plainly, the Authority was obliged to consider the Visa Application afresh and come to its own view as to whether or not the Delegate’s Decision should be affirmed on its merits. The credibility of the claims advanced by the appellant was relevant to that end. By the time that the Visa Application had progressed to the IAA Review stage, the appellant had made two statements about the events and circumstances that he said warranted its success. The Authority was under no statutory obligation to give the appellant notice that it was inclined not to accept certain parts of his narrative: DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551, 569 [72] (Reeves, Robertson and Rangiah JJ). Nor was it obliged to get, request or accept any new information (whether at the appellant’s request or otherwise). It was obliged to discharge its function in a manner consistent with the statutory objective of providing a mechanism of limited review that (amongst other things) was efficient and quick: the Act, s 473FA(1).

30    Those circumstances acknowledged, it cannot be said that the Authority had only one course reasonably open to it in the present case (namely, to invite the appellant to submit new information). Of course, it was open to the Authority to adopt that course had it been minded to; but its failure to do so does not bespeak legal unreasonableness and the decision that it thereafter made cannot be impugned as the product of jurisdictional error.

31    It follows that the appellant’s first ground must fail: the primary judge did not err by rejecting the contention that the Authority’s failure to exercise the discretion conferred upon it by s 473DC of the Act was such that the Review Decision was the product of jurisdictional error.

Ground 2: denial of natural justice or procedural fairness

32    Before me, the appellant’s submissions on ground 2 were not materially separated from what he said in support of ground 1. It was, presumably, for that reason that the Minister (by his submissions) and the FCCA (by the FCCA Judgment) addressed the two grounds simultaneously.

33    It is likely that I need not say anything on ground 2 beyond what I have said above in respect of ground 1. All the same, I should note that I regard s 473DA of the Act as a complete answer to this ground. The Authority cannot be said to have “…denied the [a]ppellant natural justice or procedural fairness” by failing to exercise the discretion conferred upon it by s 473DC of the Act. Subject to the principles of legal unreasonableness (about which I need not say more than what is set out above), it was not obliged to afford what the appellant complains was denied.

34    Ground 2 must also fail. It does not disclose any error on the part of the primary judge.

Ground 3: failure to consider claims

35    In light of the new particular that the appellant hopes to append to this ground, it is convenient that it be considered in two stages: first, in respect of the existing claim that the appellant says that the Authority didn’t consider; and, second, in respect of the additional claim that is said to have been similarly overlooked.

36    Before embarking down that path, I should state the applicable legal principles, none of which are in dispute. In order that it might discharge the review obligation conferred upon it under Pt 7AA of the Act, the Authority must consider each claim and each “integer” of each claim advanced by an applicant in support of his or her visa application: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 (“Dranichnikov”), 394-395 [25]-[28] (Gummow and Callinan JJ, with whom Hayne J agreed; Gleeson CJ dissenting but not on this point of principle); SCAT v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 625, 636-637 [29] (Madgwick and Conti JJ, Gyles J dissenting); SZSZW v Minister for Immigration and Border Protection (2015) 150 ALD 465, 468-469 [15]-[17] (Perry J). In NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 (Black CJ, French and Selway JJ), the full court, referring to the High Court’s ruling in Dranichnikov and this court’s judgment in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 (French, Sackville and Hely JJ), observed (at 20-21 [63]):

It is plain enough, in the light of Dranichnikov, that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the Tribunal. Every case must be considered according to its own circumstances. Error of fact, although amounting to misconstruction of an applicant’s claim, may be of no consequence to the outcome. It may be “subsumed in findings of greater generality or because there is a factual premise upon which [the] contention rests which has been rejected”: Applicant WAEE (at [47]). But as the Full Court said in WAEE (at [45]):

If the tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the tribunal will have failed in the discharge of its duty, imposed by s 414 to conduct a review of the decision. This is a matter of substance, not a matter of the form of the tribunal’s published reasons for decision.

37    Whether a decision maker has failed to consider a claim that was advanced in support of a particular outcome is a question of fact. The onus of establishing that fact rests with the party asserting it: in this case, the appellant. Such a failure can (although need not necessarily) be inferred in circumstances where the written record of the reasons for the decision makes no reference to the claim in question: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, 330-331 [5] (Gleeson CJ), 345 [69] and 348-349 [75] (McHugh, Gummow and Hayne JJ).

The appellant’s claims about the involvement of others in the fire

38    In its Review Decision, the Authority referred to the appellant having provided “inconsistent accounts of the circumstances of the other people who he claims were arrested, along with him, after the fire” (Review Decision, [16]; above, [17]).

39    Before the Minister’s delegate, the appellant was asked whether the three people who he claimed had, like him, been arrested in connection with the fire (above, [13]) went to court at the same time that he did. It is not disputed that he said that “…the first two times they did not attend court [but that] after that, they did”. In the Review Decision, the Authority noted what it described as an inconsistency between that evidence and the evidence contained within [21] of the appellant’s statutory declaration: the statutory declaration suggested that the others who were arrested were set free after a few days, whereas the appellant’s evidence during the Delegate Interview suggested that they, too, were brought before a court. The Authority observed that “…it seems that the [appellant] is suggesting that the other people arrested were also taken before a court, contrary to the claim in the statutory declaration that they were released after a few days and he was the only one charged.” (Review Decision, [16]; above, [17]).

40    Before me, the appellant’s submission was that there was no conflict between what he said in his statutory declaration and what he said at the Delegate Interview. By his written submissions, he maintained that:

The statutory declaration was silent as to whether the other people were charged, and, if they were charged, at what time. There was no contradiction between the statutory declaration and the evidence that “the first two times [when the Appellant was in court] they did not attend court, after that they did.” If the other people were arrested, whether with the appellant or later, they may have attended court after the Appellant’s first two court appearances. It is respectfully submitted that the reference by the learned Judge below to the whole of [16] of the Authority’s reasons (AB 234, [42]) does not undermine the Appellant’s argument, and that the Authority’s statements of the contradiction it saw between the Appellant’s oral and written claims show that the Authority did not have regard to the statutory declaration accurately, as required by law, including section 473DB. It therefore fell into jurisdictional error, and the learned Judge below also erred.

41    It is plainly true that the appellant’s statutory declaration does not, in terms, refer to others having been “charged” in connection with the fire. One can readily appreciate why the appellant and his counsel have fixed upon that truth: insofar as the Review Decision proceeded upon a factual premise that the statutory declaration said something that, in fact, was not said, the Authority might be understood to have misunderstood the case that was advanced and, potentially thereby, to have committed jurisdictional error. Alternatively—perhaps more credibly—it might be thought to have made findings that rested upon unsound evidential foundations, by reason of which its decision might be impugned as legally unreasonable (a contention that finds expression in the appellant’s fourth appeal ground).

42    I do not accept that there was anything advanced by the appellant that the Authority failed to consider (either at all, or because it misunderstood what it was that he advanced). The Authority’s observation that the appellant’s statutory declaration suggested that “…he was the only one charged” must be read fairly and in context, and not with an eye keenly attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272 (Brennan CJ, Toohey, McHugh and Gummow JJ). Intending no disrespect, the Authority’s reference in the relevant passage of the Review Decision to “charge[s]” was unfortunate and poorly expressed. Nonetheless, the central hypothesis to which the passage gave voice is beyond doubt. Whether the appellant intended it or not, the relevant passage of his statutory declaration (above, [13]) could fairly be read in such a way that suggested differential treatment as between he and the others with whom he was arrested: that is, that none of the others who were arrested in connection with the fire were prosecuted (or otherwise subjected to the same legal processes) as he was. Reading the statement in that way sat uneasily with the evidence that he gave at the Delegate Interview (which suggested that the others were also subjected to at least some degree of prosecution). It was to that unease that the Authority referred when it observed that “…it seems that the [appellant] is suggesting that the other people arrested were also taken before a court, contrary to the claim in the statutory declaration that they were released after a few days and he was the only one charged.”

43    Reasoning in that way, the Authority did not misunderstand what the appellant’s statutory declaration asserted. It might well be that the statutory declaration was poorly-worded and that the appellant did not intend by it to suggest that he was the only person who was brought before a court in connection with the fire; but, as is explained above, that was a reading that was open. The Authority cannot be criticised for failing to read the appellant’s written evidence according to what he might have intended that it should convey.

44    Insofar as it proceeds upon [21] of the appellant’s statutory declaration, ground 3 of the appeal must also fail. The primary judge did not err by rejecting the contention that the Authority overlooked what the appellant had there advanced.

The appellant’s claims about having been assaulted

45    The appellant seeks leave to amend his notice of appeal to add a new particular to ground 3 (the details of which are set out at [22] above).

46    Generally speaking, permission to agitate on appeal a point not taken at trial will only be granted “…where the new point turns only upon a question of construction or upon a point of law, or where the facts are not in controversy”: Summers v Repatriation Commission (2015) 230 FCR 179, 207 [94] (Kenny, Murphy and Beach JJ); CGA15 v Minister for Home Affairs [2019] FCAFC 46, [35] (Murphy, Mortimer and O’Callaghan JJ).

47    In VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 (Kiefel, Weinberg and Stone JJ), the full court said as follows (at 598-599 [46]-[48]):

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].

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.

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.

48    The appellant submits that the amendment pertains to a point that has merit—indeed, one that, he says, should result in the appeal being upheld. It was not advanced in the FCCA because “…it was not seen as a possible point until [c]ounsel prepared for the hearing of the appeal”. The Minister opposes the amendment of the notice of appeal on the bases that the point that is sought to be advanced is without merit and the appellant has not adequately explained why it wasn’t agitated before the FCCA.

49    The amendment should be permitted, albeit not without some hesitation. For the reasons to which I shall shortly come, I do not uphold the contention that it advances; nonetheless, I accept that it is one that has at least some merit. The explanation as to why it was not advanced below, although put with admirable candour, is not especially compelling: BLX16 v Minister for Immigration and Border Protection [2019] FCAFC 176, [31] (Moshinsky, Steward and Wheelahan JJ); CSZ15 v Minister for Immigration and Border Protection [2017] FCA 706, [11] (Davies J). Nonetheless, an appellant may be granted leave to argue a new ground on appeal even in circumstances where “…all that can be said by way of explanation [is] that its significance may not have been apparent to the appellant’s lawyers in the hearing below”: CGA15 v Minister for Home Affairs [2019] FCAFC 46, [37] (Murphy, Mortimer and O’Callaghan JJ). I do not consider that the appellant should be deprived, in this case, of the opportunity that the amendment represents.

50    It is not in contention that the appellant claimed, in support of his Visa Application, that he had been attacked after the fire by two people who came to his house and “…started hitting [him] with a tree branch and…cut [him] with a knife”. At issue is whether the Authority considered that claim for the purposes of the IAA Review.

51    There is no doubt that the Authority was conscious of the appellant’s contention. As both parties acknowledge, it was referred to expressly in the Review Decision. What that decision did not contain, so the appellant contends, was any finding about it (and, specifically, about whether or not it occurred).

52    Plainly, the appellant’s claims about the assault were advanced as evidence to substantiate his contention that, if returned to Sri Lanka, he was at risk of relevant harm. That was a consideration that would, obviously enough, inform whether or not the Authority might be satisfied that the appellant met one or more of the criteria for which s 36 of the Act provided. In AAG16 v Minister for Immigration and Border Protection [2019] FCA 1214 (“AAG16”), I made the following observations relevant to that theme (at [48]-[49]):

In order that it might attain or not attain that state of satisfaction, the Tribunal was plainly obliged to consider what might happen to the appellants (and, in particular, the first appellant) in the event that they (and he) returned to Pakistan. It could not determine whether the first appellant possessed a relevant fear (or was otherwise subject to a relevant risk) of harm without doing so. Plainly, divining what the future might hold was a task that called for some informed speculation. As is to be expected, its execution involved a question in respect of which evidence and submissions were received. Those materials touched upon events that were said to have occurred in the past (namely, whether or not the TTP had mistaken the first appellant for a spy and had threatened his life accordingly). Again, that those materials would traverse that territory is hardly surprising. The foundation for the fears that the appellants said that they held regarding what might happen to them if they returned to Pakistan was inevitably informed by what they said had happened to them (or, more particularly, to the first appellant) in the past: Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 (“Guo”), 575 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ); Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220, 237 [53] (Sackville, North and Kenny JJ). The Tribunal could not lawfully discharge its task unless it was conscious of—and gave consideration to—the materials that the appellants advanced in that respect: Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 (Kenny, Griffiths and Mortimer JJ).

The Act does not, in terms, impose upon the Tribunal an obligation to make any particular findings. Clearly in this case, the Tribunal could not discharge its statutory task without at least finding that it was or was not satisfied that the appellants met one or more of the criteria for which s 36 of the Act provides. Such a finding—and any others that went to what the Tribunal considered were material questions of fact—required expression in the Tribunal’s written decision: the Act, s 430(1); Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, 346 (McHugh, Gummow and Hayne JJ). If it failed to record in its reasons the conclusions that it drew, and the evidence or other material upon which it drew them, then the Tribunal risked being thought to have not made them and, potentially thereby, to have overlooked matters that it was obliged to consider. That, in turn, would expose it to a charge that it had failed to perform the statutory task with which it was entrusted: Minister for Home Affairs v Buadromo (2018) 362 ALR 48 (“Buadromo”), 59 [47] (Besanko, Barker and Bromwich JJ).

Equivalent observations apply in the present circumstances to the Authority and the Review Decision.

53    In Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 (“Guo”), the majority (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ) discussed the need, in cases like the present, for decision makers to engage in what I described in AAG16 as “informed speculation” about what might happen to a visa applicant if he or she is returned to his or her country of origin. At 575, it was said (emphasis added):

In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events. In the present case, for example, the Tribunal correctly relied on what it found had happened to Mr Guo and others to make a finding that he was not “differentially at risk for a Convention reason.” Without making findings about the policies of the Chinese authorities and the past relationship of Mr Guo with those authorities, the Tribunal would have had no rational basis from which it could assess whether there was a real chance that he might be persecuted for a Convention reason if he were returned to the PRC.

54    Whether the appellant was assaulted in the manner that he claimed was an issue of the sort to which the High Court, in Guo, referred in the passage cited above: it was one that called for a conclusion as to the occurrence of a past event (namely, whether the appellant had been hit with a tree branch and cut with a knife) in order that an assessment might be made of the likelihood of a future event (namely, that the appellant would be subjected to relevant persecution or harm were he to return to Sri Lanka).

55    To acknowledge that such a conclusion was required is not to suggest that the Authority was required to record it as a “finding” in the Review Decision. A finding of fact “…may not be required if the claim or issue is…subsumed within a claim or issue of greater generality”: Minister for Home Affairs v Buadromo (2018) 362 ALR 48, 59 [46] (Besanko, Barker and Bromwich JJ); see also Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593, 604-605 [46]-[47] (French, Sackville and Hely JJ).

56    The Review Decision does not contain any finding that, specifically and in terms, addresses whether or not the appellant was hit with a tree branch and cut with a knife, as he claimed. It is on that basis that the appellant says that the Authority should be understood not to have considered that part of the narrative that he advanced in support of his Visa Application.

57    Superficially attractive though that contention is, I do not consider that it withstands a fair reading of the Review Decision as a whole. As is identified above, the Authority was clearly conscious of what the appellant had claimed: it recorded early in its reasons his assertion that he had been hit with a tree branch and cut with a knife. At [21] of its decision (above, [17]), it made a general observation that it was “…not satisfied that the [appellant] has provided a credible account of having been subjected to harm or any serious threat of harm prior to his departure from Sri Lanka” (emphasis added). Later in that paragraph, it expressed the view that “[g]iven that [the appellant] worked as a three wheeler driver…there would have been ample opportunity for anyone who wished to harm the [appellant] to do so. I do not accept that he faced any subsequent threats which led to his decision to leave.”

58    In my view, it is not reasonably open to read those passages as anything other than that the appellant’s claim of having been attacked with a tree branch and cut with a knife was not accepted. The Authority was not satisfied as to the appellant’s accounts of being harmed, which, on any view, must have included what he was acknowledged to have said about having been attacked with a tree branch and cut with a knife. That alone would suffice to qualify as a rejection of the claim in question. Further, the Authority’s observation that those who might have wished to harm the appellant had ample opportunity to do so necessarily imports a rejection of the appellant’s contention that somebody had, in fact, harmed him. The Authority must, in those senses, be understood to have considered (and drawn a conclusion about) the appellant’s contention that he had been attacked with a tree branch and cut with a knife. At the very least, those passages incline against the drawing of an inference to the contrary.

59    Respectfully, the appellant has not discharged his onus of proving that the Authority overlooked what the appellant had advanced. Ground 3 of the appeal, as it applies in its expanded form, must fail.

Ground 4: Legal unreasonableness

60    Ground 4 of the appellant’s notice of appeal has two (or possibly three) dimensions, both (or all) of which allege legal unreasonableness in connection with the Review Decision. It is said that the Review Decision was the product of legal unreasonableness insofar as:

(1)    the Authority based its conclusion about the appellant’s credibility on the inconsistency that it identified as between his statutory declaration and his evidence at the Delegate Interview; and

(2)    the Authority rejected his account of the fire.

The relevant legal principles have already been summarised and I need not repeat them here.

61    Ground 4 alleges legal unreasonableness by reference to the particulars subjoined to the other grounds in the appellant’s notice of appeal. That includes the particulars subjoined to ground 1, which refer to the Authority’s failure to exercise the discretion conferred upon it by s 473DC of the Act to get “new information”. I have already addressed whether or not that failure might be impugned on legal unreasonableness grounds.

62    Having granted the appellant leave to add a new particular to ground 3, it might be thought that he intends that it, too, should be assessed through the lens of legal unreasonableness. No such contention appears in the written submissions that he was given leave to advance after the hearing of the appeal; and the particulars themselves (alleging, as they do, that the Authority ignored an important component of the appellant’s narrative) do not obviously lend themselves to analysis on the legal unreasonableness front. The new particular, then, need not be considered within the confines of ground 4.

63    I turn, then, to consider the two bases upon which the appellant alleges legal unreasonableness.

The first dimension: finding of credibility based on inconsistency

64    The appellant submitted that the Authority (reference omitted):

…was unreasonable in concluding that there was a contradiction between the Appellant’s oral and written evidence about what happened to the other people arrested after the fire. The Authority had no logically probative evidence for concluding that there was a contradiction. Its finding that there was such a contradiction “lacks an evident and intelligible justification.”

65    For reasons that might already be apparent, I do not accept that submission. It proceeds upon the premise that the appellant’s statutory declaration could not reasonably be read to suggest that the appellant was the only person who was brought before a court (or otherwise subjected to legal processes) in connection with the fire. For the reasons to which I have already adverted (above, [42]-[43]), that premise is flawed.

66    The Authority’s reliance upon the “contradiction between the [a]ppellant’s oral and written evidence about what happened to the other people arrested after the fire” was not legally unreasonable. It was within the Authority’s “decisional freedom” to reason on that score as it did.

The second dimension: rejection of the appellant’s account of the fire

67    By written submissions advanced in support of his appeal, the appellant contended:

41.    There may be many reasons why people may have approached the Appellant, a driver of an auto rickshaw, for petrol – whether or not they set fire to the shops of the man whom the Appellant claimed to have threatened him after the fire. It was not a claim which was intrinsically nonsensical.

42.    Similarly, it may not be universal, but it is surely not intrinsically nonsensical, or a claim which could not have had a real chance of being correct, that a man might not be aware until the following morning of a fire at night in shops a hundred metres from his house. It is unhappily known that some people do not wake when there are fires even closer than 100 metres away.

43.    It was not unreasonable for the Authority to have had doubts about these claims, but it was unreasonable for the Authority to use these claims as a basis for the rejection of the Appellant’s credibility, especially without inviting the Appellant to an interview.

68    The appellant maintained that the Authority, by rejecting his account of the fire, “…made findings without or contrary to probative evidence”, by reason of which its decision should be impugned as legally unreasonable.

69    None of those submissions withstands scrutiny. If, as the appellant concedes, it was reasonable for the Authority to have “had doubts” about the appellant’s claims that he had been asked for petrol on the night of the fire and had been unaware of the fire until the following morning, then it was reasonable for it to allow those doubts to inform whether or not it might accept what the appellant had claimed. The appellant’s submissions invert the premise upon which legal unreasonableness rests: it is not sufficient for the appellant to show that the claims that he advanced were within what might sensibly have been accepted; he must, instead, demonstrate that the Authority’s rejection of his claims was not reasonably open to it—that is to say, was outside of its “decisional freedom”.

70    It was—in my view, plainly—open to the Authority to reason as it did with respect to the appellant’s account of the fire. Its decision was not a consequence of legal unreasonableness.

Conclusion

71    Ground 4 of the appellant’s notice of appeal must fail.

Disposition

72    None of the appellant’s grounds of appeal is substantiated. The appeal must (and will) be dismissed with costs. The Minister seeks—and the appellant consents to—an order that the name of the second respondent be changed to reflect a recent change to the name of the relevant department. Such an order is appropriate and will also be made.

Associate:

Dated:    25 November 2019