FEDERAL COURT OF AUSTRALIA

BOS17 v Minister for Immigration and Border Protection [2020] FCA 75

ORDERS

THE COURT ORDERS THAT:

1.    The appellant be granted leave to rely on the amended notice of appeal filed 30 August 2019.

2.    The appeal be dismissed.

3.    The appellant pay the first respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

O’BRYAN J:

Introduction

1    This is an appeal from a decision of the Federal Circuit Court of Australia dated 12 February 2019 published as BOS17 v Minister for Immigration and Anor [2019] FCCA 285. The primary judge dismissed an application for judicial review of a decision of the Immigration Assessment Authority (Authority) made under Part 7AA of the Migration Act 1958 (Cth) (Act) on 22 March 2017. The Authority had affirmed a decision of a delegate of the Minister refusing to grant the appellant a safe haven enterprise visa.

2    The appeal was listed for hearing on 7 August 2019. At that time, the appellant did not have legal representation and had not filed submissions in support of his appeal. When the appeal was called on for hearing, the appellant made an application for an adjournment on the basis that, until recently, he did not have sufficient money to engage a lawyer but that he had recently accumulated sufficient funds to engage a lawyer and he wished to do so. I granted the appellant a short adjournment to enable a lawyer to be engaged and written submissions to be filed.

3    The appellant obtained legal representation and, on 30 August 2019, filed an amended notice of appeal and written submissions. At the subsequent hearing of the appeal, the appellant was represented by Counsel. There was no objection taken to the amended notice of appeal and I grant leave for the appellant to rely upon it.

4    The appeal is by way of rehearing under s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth). Accordingly, the Court must determine whether the Federal Circuit Court was correct to find that the decision of the Authority was not affected by jurisdictional error: Minister for Immigration and Border Protection v SZVFW (2018) 163 ALD 1.

5    The amended notice of appeal contained a single ground of appeal concerning s 473DD(b)(ii) of the Act, reflecting one of the grounds of review raised before the primary judge. By the ground of appeal, the appellant contended that the primary judge had erred in failing to find that the Authority fell into jurisdictional error in interpreting and applying s 473DD(b)(ii) of the Act to exclude from consideration two pieces of “new information” submitted to it by the appellant being:

(a)    a letter from the appellant’s wife dated 20 December 2016; and

(b)    various articles in the nature of country information.

6    For the reasons that follow, I dismiss the appeal.

Background

7    The appellant is a citizen of Sri Lanka. He arrived on Christmas Island as an unauthorised maritime arrival on 2 October 2012.

8    By letter dated 10 December 2015, the Department advised the appellant that the Minister had determined, pursuant to s 46A(2) of the Act, that s 46A(1) would not apply and invited the appellant to apply for a temporary protection visa or a safe haven enterprise visa.

9    On 28 February 2016, the appellant lodged an application for a safe haven enterprise visa. In support of his application, the appellant made the following claims:

(a)    He was born in the north of Sri Lanka in 1985.

(b)    He is a national of Sri Lanka and of no other country, and has no right to enter and to reside in any other country.

(c)    He is of Tamil ethnicity and at risk for this reason.

(d)    His family was displaced during the civil war and also lost their possessions in the tsunami in 2004.

(e)    In 2006, the appellant was near a bomb blast. He was detained and tortured by the Sri Lankan Army (SLA), and the SLA confiscated his National Identity Card. After this, he was required to go regularly to a SLA camp, and he was tortured and harassed regularly.

(f)    At about that time, the appellant’s uncle (his father’s younger brother) was arrested by the SLA and his whereabouts, and whether he is alive or dead, is unknown.

(g)    The appellant stopped his education and married in 2007, hoping this would afford him some protection, but he continued to be harassed.

(h)    During the war, the appellant was subject to torture and harassment in SLA camps.

(i)    After the end of the war, the appellant had to report to an SLA camp every week or two weeks.

(j)    Another of the appellant’s uncles, one who had been living with the appellant’s family, was detained in 2012.

(k)    The appellant was subjected to continuing torture and harassment and went into hiding. Subsequently, the appellant fled by boat from Sri Lanka to Australia, on the advice of his family.

(l)    Since then, intelligence personnel have visited his home in Sri Lanka and intimidated his family.

10    On 15 August 2016 the appellant attended an interview with a delegate of the Minister. On 18 January 2017, the delegate refused to grant the appellant a safe haven enterprise visa on the basis that the delegate was not satisfied that the appellant faced a real chance of serious harm or a real risk of significant harm upon return to Sri Lanka.

11    On 23 January 2017, the delegate’s decision was referred to the Authority for review under Part 7AA of the Act. On the same day, the Authority wrote to the appellant informing him of the referral and provided him with a copy of its Practice Direction. In relation to the provision of new information to the Authority, the Practice Direction stated that the Authority could only consider new information (information that was not before the Department) if there were exceptional circumstances and, if the appellant wanted the Authority to consider new information, he must also provide an explanation of the matters referred to in s 473DD(b)(i) or (ii) of the Act.

12    On 17 February 2017, the appellant’s representative provided to the Authority an email attaching a written submission, various articles in the nature of country information and a letter from the appellant’s wife dated 20 December 2016 in the Tamil language. On 14 March 2017, the appellant’s representative provided to the Authority an email attaching an English translation of the letter from the appellant’s wife. The letter is central to the appeal. The English translation is as follows (errors in original):

My dear,

This is your loving wife writing to you and prays to God Almighty for your wellbeing and safety.

With eyes full of tear and with unbearable sorrow of loneliness in heart, my little daughter and I have been eagerly waiting for your love, care and embrace. We are waiting with full of hope for that joyful moments in which unforgettable changes going to happen in our lives. We have been living in a dream full of hopes.

My dear, I have been restlessly waiting for the day that would bring an end to our unfortunate and miserable life. The incidents such as Kidnaps, disappearance and arrests became regular events in the country.

The questioning and torturing that began with you are continuing without an end. Myself, my parents and my brothers have been subjected to direct and indirect persecution on the pretext of Military and intelligent investigations.

My dear, I know you won't be able to tolerate the harassments, torturing and difficulties that we have been experiencing here. I am also aware that you are living a solitary life and longing for our love; yet, I kindly ask you not to make any effort to return to the country at any circumstances. I beg you with full of tears in my eyes and pain in heart that please do not come back to the country.

Though we live in two different places, we are bit relieved to hear your voice through the phone and to see your face in video (via Skype). My dear, I can't and won't stay without talking to you or without seeing you.

To whom and to where do I make an appeal to return my husband? I can't see those who ask 'where is my hubby? Where is my son? Where is my brother?' I have been living in a country where there are people who have neither heart nor humanity. How can they understand the pain of my tears? From whom do I ask for justice in a country where there is no justice?

As I said earlier, because of the constant investigation by Military and Intelligent personnel in civil uniform, if you come to this country or if you stay here, there will be no assurance for your safety. Hence, please do not make any decision to return to the country in any circumstance. I am kindly asking you this, even though my heart is longing for you.

Everyone in the community including, friends, relatives and villagers say that if you come back here, you could be taken into custody by Military or Intelligent personnel and would be taken to the 4th Floor and subjected to torturing.

You know, I have already been suffering from weakness of heart; and getting treatment for it. Doctors say, my body is getting weaker and weaker because I have been subjected to constant Military and Intelligent investigation.

I have been regularly visiting the doctor. I am going to see the doctor again on the 5th of January 2017. They said they are going to give me a referral letter about my health condition. I will send it to you when I get it.

My dear, you may share this letter with Australian Immigration Officers if you get a chance to do so. I hope this will be helpful for ours and our children's future life.

I am waiting with full of confidence that our dreams and hopes will come true one day and I am waiting for that great day that we are going to be reunited.

Your beloved wife,

[Name of the appellant’s wife]

13    The materials provided to the Authority by the appellant’s representative were “new information” in the sense that they were not before the delegate when the delegate made the decision on 18 January 2017, and accordingly, s 473DD of the Act applied. Despite the instructions given to the appellant in the Authority’s Practice Direction, the appellant’s representative failed to provide the Authority with any explanation of the matters referred to in s 473DD(b)(i) or (ii).

14    On 22 March 2017, the Authority affirmed the delegate’s decision not to grant the appellant a safe haven enterprise visa.

Authority’s decision

15    At the commencement of its reasons, the Authority considered whether it was permitted, under s 473DD of the Act, to have regard to the materials submitted by the appellant on 17 February and 14 March 2017. As the Authority’s decision on that question is central to the appeal, it is convenient to reproduce the Authority’s reasons in full:

Information before the Authority

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

4. On 17 February 2017 the Authority received a submission from the applicant's representative. The submission in part comprises argument that responds to issues arising from the delegate's assessment, which I consider does not constitute new information.

5. The representative has also provided new information that was not before the delegate. He has submitted a letter, dated 20 December 2016, from the applicant's wife discussing her situation in Sri Lanka, which reiterates claims already made by the applicant. The representative has also provided new country information and referred to country information in the submission that was not before the delegate. The representative's submission also states that if the applicant returns to Sri Lanka he 'will continue to live in extreme debt ... '.

6. The Authority must not consider any new information from an applicant unless satisfied exceptional circumstances justify considering the new information and the new information was not and could not have been provided to the Minister, or is credible personal information which was not previously known and had it been known may have affected the consideration of the applicant's claims.

7. The letter dated 20 December 2016 pre-dates the delegate's decision and there are no reasons given as to why this information could not have been provided to the delegate or why it may be considered credible personal information. In the circumstances, I am not satisfied that this letter could not have been provided before the delegate's decision was made. Nor am I satisfied the new information is credible personal information.

8. The country information referred to or provided that was not before the delegate all pre-dates the delegate's decision and there are no reasons given as to why this information could not have been provided to the delegate or why it may be considered credible personal information. In the circumstances, I am not satisfied that this information could not have been provided before the delegate's decision was made. Nor am I satisfied the new information is credible personal information.

9. In his submission, the representative indicates that if the applicant returns to Sri Lanka he will continue to live in 'extreme debt ... '. In reviewing the referred materials, I note the applicant made no such claim in his SHEV application or during his SHEV interview and as such I consider this to be a new claim. There is no further information provided by the representative explaining this assertion and no reasons as to why this this (sic) information was not previously raised. In the circumstances, I am not satisfied that this information could not have been provided before the delegate's decision was made. Nor am I satisfied the new information is credible personal information.

10. I have obtained new information, specifically information on the treatment of Sri Lankans of Tamil ethnicity and citizens who have departed Sri Lanka illegally and sought asylum abroad (information not specifically about the applicants (sic) but about a class of persons of which the applicants (sic) are a member) from the most recent Department of Foreign Affairs and Trade (DFAT) country report for Sri Lanka which was published on 24 January 2017. The delegate relied on the 18 December 2015 DFAT report for Sri Lanka which the 24 January 2017 report updates. I am satisfied that there are exceptional circumstances to justify considering this new information.

16    The Authority accepted that the appellant and his family were internally displaced as claimed and that the appellant had lost all of his belongings, including his books and other learning materials in the 2004 tsunami (at [15]). The Authority also accepted as plausible the claim that the appellant’s uncle was arrested by the SLA in December 2006 and that his whereabouts were unknown (at [16]).

17    The Authority noted a number of inconsistencies in relation to the appellant’s evidence regarding the 2006 bomb blast and being taken into custody and tortured by the SLA (at [17]-[18]). The Authority also had regard to a letter purportedly from a doctor in Sri Lanka, but on account of identified concerns with its content, did not consider that it could be relied upon as evidence of injuries that the appellant claimed to have sustained in 2006 and therefore gave it little weight (at [19]).

18    The Authority found the appellant’s claim that his National Identity Card was confiscated in 2006 and that he was unable to obtain a new National Identity Card or work to be unconvincing (at [21]). The Authority had regard to the appellant’s evidence during the entry interview to the effect that he was able to provide the Department with evidence, including his National Identity Card. Having listened to the recording of the appellant’s entry interview, the Authority noted that the appellant had made no reference to his National Identity Card being missing or confiscated six years earlier (at [21]). The Authority also noted that, despite claiming that he was unable to work, the appellant had given inconsistent evidence that he was employed as a fisherman between 2008 and 2012 (at [22]-[23]). The Authority found that the inconsistencies were significant and undermined the appellant’s credibility, and that the appellant did not provide a persuasive or satisfactory explanation for the discrepancies (at [24]). Accordingly, the Authority did not accept that the appellant’s National Identity Card was confiscated in 2006, or that he had never worked in Sri Lanka (at [24]).

19    The Authority accepted that the detention and mistreatment of ordinary Tamils during the civil war had occurred, and that support for the Liberation Tigers of Tamil Eelam (LTTE) was at times imputed on the basis of Tamil ethnicity (at [25]). Noting its concerns with the appellant’s overall credibility, the Authority accepted as plausible that, as a Tamil male, the appellant had been briefly detained and questioned about his possible involvement in a bomb blast in 2006 and then released (at [25]). However, the Authority found it not insignificant that the bomb blast incident was not mentioned by the appellant in his entry interview as a reason for why he left Sri Lanka. The Authority was also not satisfied that the appellant sustained broken limbs as a result of the bomb blast, that he was required to sign in with the authorities following questioning, or that beyond that day, the appellant was of any ongoing interest to the Sri Lankan authorities in connection with any imputed involvement in the 2006 bomb blast (at [25]). The Authority further found that there was no information before it which indicated that the appellant was of any interest to the Sri Lankan authorities in relation to his uncle’s disappearance in 2006 (at [25]).

20    In relation to the appellant’s claim that he had been required to report to the SLA and sign in from 2007 until the end of the conflict, the Authority found the appellant’s evidence to be vague and lacking in detail (at [27]). Whilst the Authority accepted as plausible that, as a Tamil from the north, the appellant may have experienced treatment such as being harassed or monitored by security forces, the Authority did not accept that the appellant had been tortured or required to report to the SLA as claimed (at [29]).

21    The Authority considered the appellant’s evidence in relation to his paternal uncle being detained at an SLA camp in 2012 to be inconsistent (at [30]-[34]). The Authority did not accept that the appellant’s uncle had been arrested or detained as claimed and also rejected the appellant’s claim that he had been arrested or detained by the SLA or Criminal Investigation Department on multiple occasions in 2012. The Authority rejected the claim that, after the appellant’s arrival in Australia, military intelligence personnel had visited his wife and parents (at [34]). The Authority was not satisfied that the appellant faced a real chance of serious harm due to the claimed arrest of his uncle in 2012, his imputed LTTE profile, or for any other reason upon his return to Sri Lanka (at [35]). The Authority also found that the appellant was not a person who faced a real chance of serious harm by virtue of his Tamil ethnicity or on account of any actual or imputed LTTE connections, including familial connections (at [36]-[37]).

22    Taking into account the circumstances of the appellant as a whole, both individually and cumulatively, the Authority found that the appellant would not face a real chance of serious harm and concluded that the appellant did not satisfy s 36(2)(a) of the Act (at [46]-[47]).

23    In considering the complementary protection criterion, the Authority was not satisfied that the appellant would be subject to treatment that amounted to significant harm by reason of being a Tamil from the north (at [51]). Having considered the appellant’s claims both individually and cumulatively, the Authority found that the appellant did not face a real risk of significant harm upon his return to Sri Lanka and concluded that he did not meet the criterion in s 36(2)(aa) of the Act (at [55]-[56]).

Federal Circuit Court Decision

24    On 12 April 2017, the appellant filed an application for judicial review of the Authority’s decision in the Federal Circuit Court under s 476 of the Act. An amended application was filed on 8 November 2018.

25    Subject to various exceptions (which are not presently relevant), s 476 grants the Federal Circuit Court the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution. As such, review by the Federal Circuit Court was confined to jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476.

26    The amended application stated four grounds of review. Only the third ground is relevant to this appeal, although the grounds overlapped and the primary judge’s reasoning with respect to ground three is largely set out in the context of other grounds. As indicated earlier, by the third ground, the appellant contended that the Authority fell into jurisdictional error in interpreting and applying s 473DD(b)(ii) of the Act to exclude from consideration the two pieces of “new information” submitted to it by the appellant, being the letter from the appellant’s wife dated 20 December 2016 and the various articles in the nature of country information.

27    The primary judge concluded that no error was shown in the Authority’s decision that it was not permitted to consider that material by s 473DD. I have reached the same conclusion on this question but for somewhat different reasons than the primary judge.

Appellant’s submissions

28    In relation to the letter from the appellant’s wife, the appellant submitted that the letter was, on its face, important information claiming continuing questioning and torturing, and a risk of being arrested, detained and tortured. If the Authority had considered it, the letter may have affected the decision whether to seek further information and, if its contents were accepted, it may have affected the decision. In relation to the country information, the appellant submitted that the information was from a number of sources including The Diplomat, Human Rights Watch and the UN Committee Against Torture. If the Authority had considered the material, it may have informed its assessment of the risk of harm to the appellant, including risks to him as a returned illegal emigrant and asylum seeker.

29    The appellant observed that the Authority made no finding under s 473DD(a) as to whether it was satisfied that there were exceptional circumstances to justify considering the letter from the wife or the country information. It was satisfied that both pieces of “new information” did not meet s 473DD(b)(i) and also found that they were not “credible personal information” such as to meet s 473DD(b)(ii). The Authority therefore refused to consider them (at [6]-[8]).

30    The appellant argued that the Authority’s conclusion with respect to s 473DD(b)(ii) involved legal error. The argument had the following steps.

(a)    First, relying on CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 (CSR16) at [38]-[42] per Bromberg J, the appellant submitted that the requirement that the new information be “credible” is not a requirement that it be believed by the Authority or that it be judged by the Authority to be more likely than not true; rather, it is a preliminary filter, excluding only information which is obviously incredible, or inherently incapable of belief. On that test, the appellant submitted that both pieces of new information must, if assessed lawfully, have been judged “credible”.

(b)    Second, the appellant submitted that the phrase “personal information” is defined by s 5 of the Act as having the same meaning as in the Privacy Act 1988 (Cth), where it is defined (by s 6 of that Act) as information or an opinion about an identified individual or an individual who is reasonably identifiable, whether the information or opinion is true or not and whether the information or opinion is recorded in a material form or not. The appellant argued that both pieces of new information came within that definition. In relation to the country information, the appellant identified passages in the country information that referred to President Sirisena and his government and other persons of influence in Sri Lanka and submitted that those references were sufficient to categorise the material as personal information within the foregoing definition.

(c)    Third, relying on Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 (Plaintiff M174/2016) at [34] per Gageler, Keane and Nettle JJ, the appellant submitted that the phrase “not previously known” means not previously known by the appellant or the Minister. In the present case, the appellant argued that, if assessed lawfully, the new information in the present matter must satisfy that requirement.

(d)    Fourth, the appellant submitted that the new information was potentially critical information, relating to grave abuses of human rights and to the situation of the appellant’s wife and family in Sri Lanka and to himself. It was therefore information which may have affected the Authority’s decision.

31    The appellant submitted that the Authority’s error was jurisdictional in that it deprived the appellant of the possibility of a different outcome. The possibility arose because, if the Authority took the letter into account, it might have sought further evidence from the appellant’s wife. That may have caused the Authority to come to a different assessment of the appellant’s credibility, or it may have caused the Authority to consider a new claim that the appellant faced the risk of harm if returned to Sri Lanka based on the claims made by the appellant’s wife.

Minister’s submissions

32    The Minister submitted that the primary judge was correct to find that the letter from the appellant’s wife and the country information were not credible personal information within the meaning of s 473DD(b)(ii) for the following reasons.

33    First, the Minister submitted that the appellant had provided no explanation to the Authority as to why the new information was credible personal information, relying on AUH17 v Minister for Immigration and Border Protection [2018] FCA 388 (AUH17) at [31]-[33], ABC17 v Minister for Immigration and Border Protection [2018] FCA 254 at [9]-[10] and BHM17 v Minister for Immigration and Border Protection [2019] FCA 1396 at [28] and [41].

34    Second, in relation to the country information, the Minister submitted that the information was not personal information for the purposes of s 473DD(b)(ii). The information provided was not about an individual but about country conditions for Tamils in Sri Lanka. Further, the references to individuals in the country information were in the context of them leading governments, rather than references to them as individuals in the nature of personal information.

35    Third, the Minister submitted that the letter from the appellant’s wife could not have affected the consideration of the appellant’s claims. As the Authority noted, the letter simply reiterated claims already made by the appellant. It did not contain information regarding new or unknown incidents or threats of harm that might have affected the consideration of the appellant’s claims.

36    Fourth, even if there was a failure in the application of s 473DD(b)(ii), the information was not sufficiently material to form the basis for a finding of jurisdictional error. In relation to the letter from the appellant’s wife, the Minister reiterated that its contents did not raise any new claims. In relation to the country information, the Minister argued that the Authority had relied on more current country information in the form of a DFAT report.

Consideration of appeal

Some general matters

37    Section 473DC(2) of the Act stipulates that the Authority does not have a duty to get, request or accept any new information whether the Authority is requested to do so by an applicant or by any other person, or in any other circumstances. Notwithstanding that section, and as noted earlier, on 23 January 2017 the Authority wrote to the appellant and provided him with a copy of its Practice Direction. In relation to the provision of new information to the Authority, the Practice Direction stated that the Authority could only consider new information if there are exceptional circumstances and instructed the appellant that, if he wished the Authority to consider new information, he must also provide an explanation of the matters referred to in s 473DD(b)(i) or (ii).

38    Section 473DD of the Act places a statutory limitation on the Authority’s ability to consider new information in making its decision under Part 7AA. The section provides as follows:

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.

39    As is made clear by the section, the Authority must not consider new information unless satisfied of the matter in s 473DD(a) and one of the two matters stated in s 473DD(b): Plaintiff M174/2016 at [31] per Gageler, Keane and Nettle JJ, at [78] per Gordon J and at [100] per Edelman J; Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111 (BBS16) at [102]; AQU17 v Minister for Immigration and Border Protection (2018) 162 ALD 442 at [13].

40    In the present case, the Authority did not consider limb (a) of s 473DD (whether it was satisfied that there are exceptional circumstances to justify considering the new information) with respect to either category of new information. The primary judge’s contrary finding at [15] (in relation to the letter from the appellant’s wife) had no basis and was erroneous. It is not an error for the Authority to confine its consideration to limb (b) of s 473DD if it comes to the view that neither of the two matters stated in that limb are satisfied (AUH17 at [33]) (whereas the Authority may err if it confines its consideration to limb (a) of s 473DD without considering the matters referred to in limb (b), for the reasons explained in BVZ16 v Minister for Immigration and Border Protection (2017) 254 FCR 221, which reasons were approved and followed in BBS16 at [102]-[112]). In any case, the result in the present case is that there was no finding by the Authority on limb (a).

41    As noted earlier, when providing the new information to the Authority, the appellant failed to provide any explanation of the matters referred to in limb (b) of s 473DD. It was common ground between the parties that the failure of the appellant to provide submissions or otherwise give reasons why information satisfies the statutory tests in s 473DD does not entitle the Authority to refuse to consider the information on the basis that s 473DD cannot be satisfied. The parties accepted the correctness of the following statements of Mortimer J in AUH17 at [30]-[31]:

30    There may be circumstances where it is so plain that there is, on the material, an explanation, that the Immigration Assessment Authority should consider it even if not expressly proffered by the applicant. That might be akin to circumstances where a tribunal is required to consider a claim plainly arising on the material before it even though an applicant does not expressly make such a claim: see the recent summary of these principles by the Full Court in Singh v Minister for Immigration and Border Protection [2017] FCAFC 195 (Perram, Farrell and Perry JJ) at [27].

31    In other words, an applicant may “satisfy” the Immigration Assessment Authority about the matters in s 473DD(b) by what she or he says, or the documents she or he produces, without clothing it in a specific submission or specific evidentiary topic directed at s 473DD(b)…

The letter from the appellant’s wife

42    The Authority’s consideration of the letter from the appellant’s wife is set out in paragraph 7 of its reasons. The Authority made two observations relating to paragraphs (i) and (ii) of limb (b) of s 473DD: first, that the letter is dated 20 December 2016 (which pre-dates the delegate’s decision) and there was no reason given as to why this information could not have been provided to the delegate; second, there was no reason given as to why the information may be considered credible personal information. On the basis of those observations, the Authority concluded that it was not satisfied that the letter could not have been provided before the delegate’s decision was made (being paragraph (i)) and was not satisfied the new information was credible personal information (being paragraph (ii)).

43    I accept the appellant’s submission that the Authority’s conclusion with respect to paragraph (ii), that the letter was not credible personal information, involved legal error. It was common ground between the parties that, in s 473DD(b)(ii), “credible” means information which is capable of being accepted by the Authority as truthful: CSR16 at [41] per Bromberg J (cited with apparent approval by the Full Court in Minister for Immigration and Border Protection v CLV16 (2018) 260 FCR 1783 at [17]). The word “credible” does not impose a requirement that the information be believed by the Authority or that it be judged by the Authority to be more likely than not true. There is nothing in the content of the letter or the background circumstances of this case on which a conclusion could be reached that the letter was obviously incredible or inherently incapable of belief. If and to the extent the Authority implicitly found to the contrary, in my view the finding was legally unreasonable. The content of the letter also satisfied the requirement of being personal information in that it was information about identified individuals, being the appellant’s wife and family: cf Plaintiff M174/2016 at [33] and [34] per Gageler, Keane and Nettle JJ. The Minister did not contend to the contrary.

44    I do not accept the Minister’s submission that the Authority’s conclusion that the letter was not “credible personal information” should be read as a shorthand reference to a conclusion that the letter did not satisfy the entire test under s 473DD(b)(ii); that is, the letter was not credible personal information which was not previously known and, had it been known, may have affected the consideration of the appellant’s claims. In making that submission, the Minister relied on the fact that the Authority referred to the entirety of that phrase in the preceding paragraph of its reasons (at [6]). There is no indication in its reasons that the Authority turned its mind to the question whether the information in the wife’s letter was previously known or whether it may have affected the consideration of the appellant’s claims. The Authority’s reasons were confined to the question of whether the letter was credible personal information.

45    Because the Authority’s reasons on this question were stated in a conclusory manner, it is not clear how the Authority went wrong. It may be that the Authority considered that, in the absence of an explanation from the appellant, it was not required to consider the application of s 473DD(b)(ii) for itself. For the reasons explained earlier, if that was the basis of the decision, it was an error. Alternatively, it is possible that the Authority understood the word “credible” to impose a test of whether the Authority considered the information to be true. Again, for the reasons explained earlier, if that was the basis of the decision, it was an error.

46    Having found error in the Authority’s decision, a further question arises whether the error was material to its decision and thereby jurisdictional. In deciding whether the Authority’s error could have deprived the appellant of the possibility of a successful outcome, it is necessary to consider:

(a)    first, whether it may have been open to the Authority to consider the letter under s 473DD; and

(b)    second, if it may have been open, whether there was a realistic possibility that the Authority’s decision may have been different if it had considered the letter.

47    The first question requires consideration of the remaining elements of s 473DD. Turning first to s 473DD(b)(ii), the question is whether it was open to the Authority to conclude that the information in the letter was not previously known and, had it been known, it may have affected the consideration of the appellant’s claim. The expression “not previously known” encompasses personal information which, although previously known to the applicant, was not previously known to the Minister: Plaintiff M174/2016 at [33] per Gageler, Keane and Nettle JJ. The expression “may have affected the consideration of the appellant’s claim” requires the information to be at least relevant to the appellant’s claim and possibly requires a level of probative force that is greater than de minimus. It is important to note, though, that the expression does not require that the information may have resulted in a different decision; it only requires that the information may have affected the Authority’s consideration of the appellant’s claim.

48    The majority of the letter contains information of a personal or private kind, expressing sadness at the separation of the appellant from his family. Such information may not have been previously known to the Minister, but the information could not have affected the consideration of the appellant’s claim because it was not relevant to the refugee or complementary protection criteria in the Act. However, the letter also contained the following information which was relevant to the refugee or complementary protection criteria in the Act:

(a)    that the questioning and torturing that began with the appellant are continuing and the appellant’s wife, her parents and her brothers have been subjected to direct and indirect persecution under the pretext of investigations by military intelligence personnel;

(b)    that his wife has been experiencing harassment, torture and other difficulties; and

(c)    if the appellant returned to Sri Lanka, there would be no assurance for his safety because of the constant investigations carried out by military intelligence personnel and the appellant could be taken into custody by military intelligence personnel and would be subjected to torturing.

49    In my view, it was open for the Authority to reach a conclusion that the foregoing information was not previously known to the Minister and, had it been known, may have affected the consideration of the appellant’s claims. Against that conclusion, the Minister drew attention to the fact that the appellant’s statement that accompanied his visa application also stated that the appellant’s wife and parents had been intimidated by military intelligence personnel after the appellant left the country, and the Authority had considered and rejected that claim (at [34]). However, the information in the letter constituted different information from the appellant’s statement in two significant respects. First, it was information from a separate source, being the appellant’s wife. The letter therefore corroborated (to some extent) the claims that had been made by the appellant. Second, it was information that was more current than information previously submitted by the appellant. Given those differences, in my view it is possible that the Authority, deciding the question in accordance with law, might have come to the conclusion that paragraph (ii) of limb (b) of s 473DD was satisfied.

50    Turning next to limb (a) of s 473DD, as noted earlier, the Authority made no findings on that limb. In Plaintiff M174/2016, the plurality observed (at [30]):

Quite what will amount to exceptional circumstances is inherently incapable of exhaustive statement. The word “exceptional”, in such a context, is not a term of art but “an ordinary, familiar English adjective”: “[t]o be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered”.

51    I cannot rule out the possibility that the Authority might have formed the view that the receipt of a letter from the appellant’s wife, situated in Sri Lanka, recording information about current experiences in Sri Lanka, satisfied the test of exceptional circumstances in the present matter.

52    Having concluded that the Authority might have been satisfied that it was permitted to consider the letter in accordance with s 473DD, the final question is whether there was a realistic possibility that the Authority’s decision might have been different if it had considered the letter: see Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at [30]-[31] per Kiefel CJ, Gageler and Keane JJ; Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 (SZMTA) at [2], [3] and [45] per Bell, Gageler and Keane JJ. This is an ordinary question of fact in respect of which the applicant bears the onus of proof and is to be determined by inferences drawn from evidence adduced on the application: SZMTA at [46] per Bell, Gageler and Keane JJ.

53    As stated recently by the Full Court in Minister for Immigration and Border Protection v CPA16 (2019) 163 ALD 469 (CPA16) at [39], in a case involving adverse credibility findings:

…the task of deciding whether an omitted document is material is not without difficulty. As Gleeson CJ said in Aala (at [4]) “[d]ecisions as to credibility are often based upon matters of impression, and an unfavourable view taken upon an otherwise minor issue may be decisive.” Credibility findings are often non-linear in nature: VAAD v Minister for Immigration and Multicultural Affairs [2005] FCAFC 117 at [79] (Hill, Sundberg and Stone JJ); SZTFQ v Minister for Immigration and Border Protection [2017] FCA 562 at [44]-[45] (Lee J). We respectfully agree with Kirby J’s observations in Applicant NAAF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1; [2004] HCA 62 at [81] where his Honour said:

…decision-making is a complex mental process. Disbelief of a litigant or witness on one point might carry over to affect the decision-maker’s disbelief of the same person on other points. Contrary-wise, establishing that an initial disbelief of a person’s credibility on one matter was erroneous might convince a decision-maker of the need to revisit other conclusions and to look at the person’s entire evidence in a new light.

54    Notwithstanding the difficulties referred to in CPA16, I have come to the view that there was no realistic possibility of the Authority’s decision being different if it had considered the letter from the appellant’s wife. That is for three primary reasons. First, as summarised earlier, the Authority rejected almost every claim made by the appellant on credibility grounds. In large part, the Authority disbelieved the appellant because of inconsistencies in his evidence over time and inconsistencies with documentation provided by the appellant. The Authority also found that the appellant’s evidence about harm he had allegedly suffered to be extremely vague and lacking in detail. Second, the relevant information contained in the letter, set out earlier, was also vague and lacking in detail. It consisted of broad assertions of questioning and torturing of the appellant’s wife, her parents and her brothers by military intelligence personnel. No detail of any kind, such as dates and places, was provided. Accordingly, while the information was new in the sense that it originated from a different source (the appellant’s wife) and it was more current (updated from February 2016 to December 2016), it could not be regarded as having significant probative value in and of itself. Third, the information was contained in a letter from the appellant’s wife and could not be regarded as independent, further diminishing the weight that could be given to the information. In all of those circumstances, in my view the Authority’s erroneous decision under s 473DD in respect of the letter, causing the Authority to disregard the letter, did not deprive the appellant of the realistic possibility of a different outcome. Considering the Authority’s decision as a whole, in light of the evidence and submissions before it, in my view there was no realistic possibility that consideration of the letter might have resulted in a different decision.

Country information

55    The issues with respect to the country information can be addressed more briefly.

56    The Authority’s consideration of the country information submitted by the appellant’s representative is set out in paragraph 8 of its reasons. Again, the Authority made two observations relating to paragraphs (i) and (ii) of limb (b) of s 473DD: first, that the country information all pre-dates the delegate’s decision and there was no reason given as to why this information could not have been provided to the delegate; second, there was no reason given as to why the information may be considered credible personal information. On the basis of those observations, the Authority concluded that it was not satisfied that the country information could not have been provided before the delegate’s decision was made (being paragraph (i)) and was not satisfied the new information was credible personal information (being paragraph (ii)).

57    The appellant referred to a number of extracts of the country information in support of its argument that the information was personal information within 473DD. For example:

(a)    In an article published in “The Diplomat” on 7 January 2016, the writer commented on a recent report of the International Truth and Justice Project – Sri Lanka which documented cases of abduction, torture and violence against ethnic Tamils in Sri Lanka. The article contained the following paragraph relied on by the appellant:

Broadly speaking, President Maithripala Sirisena’s tenure thus far has been less authoritarian than Mahinda Rajapaksa’s final years in power. Nevertheless, let’s not take too much comfort in people proclaiming that things are more democratic 12 months into Sirisena’s reign. As Sri Lanka watchers assess the new government’s progress one year after Rajapaksa’s unexpected ouster, it’s important to be candid about ongoing torture and sexual violence. The disturbing incidents documented in this report call into question the depth and breadth of purported democratic gains since Sirisena’s ascension in January 2015.

(b)    In an article published in the Ceylon News on 9 December 2015, the writer commented on a recent report of the United Nations Committee Against Torture concerning the administration of justice in Sri Lanka. The article contained the following paragraph, relied on by the appellant, extracted from the Committee’s report:

…Bearing in mind the findings of the OISL that the Sri Lankan security forces committed widespread or systematic torture, enforced disappearances, and other serious human rights violations during and in the aftermath of the internal conflict, the Committee is seriously concerned at the failure of the State party to carry out an institutional reform of the security sector. In this regard, the Committee was alarmed by the presence of the Chief of National Intelligence, Sisira Mendis, as part of the Sri Lankan delegation, since he was the Deputy Inspector General of the Criminal Investigations Department (CID) from March 2008 to June 2009. The Committee observed that Mr. Mendis is named in the OISL Report, which notes that the CID’s “4 Floor” facility at police headquarters in Colombo was known as a notorious site of torture. The OISL report also recounts allegations of widespread torture, including sexual violence, perpetrated against individuals detained at Manik Farm camp and elsewhere in the aftermath of the conflict by personnel of the CID and the Terrorism Investigation Department (TID) over which Mr. Mendis also allegedly exercised supervisory authority until June 2009. In this connection, the Committee deeply regrets that the (sic) neither Mr. Mendis nor any other member of the delegation provided information in response to the many specific questions raised by the Committee on this subject during the dialogue with the State party and in its written additional information provided to the Committee ....

58    The appellant argued that the references to identified individuals in the articles were sufficient to categorise the material as personal information within the meaning of s 473DD.

59    I do not accept the appellant’s contention that the Authority erred in concluding that the country information was not personal information. The phrase “personal information” is defined s 5 of the Act as having the same meaning as in the Privacy Act 1988 (Cth), where it is defined (by s 6 of that Act) as information or an opinion about an identified individual or an individual who is reasonably identifiable, whether the information or opinion is true or not and whether the information or opinion is recorded in a material form or not: see also Plaintiff M174/2016 at [33] and [34] per Gageler, Keane and Nettle JJ. In my view, an essential aspect of that definition is that the information is about an identified individual or an individual who is reasonably identifiable. Information is not personal information merely because the information refers to an identified individual. Although the articles relied on by the appellant refer to various people by name, such as President Maithripala Sirisena, the information contained in the articles cannot be characterised as being about those persons. The articles, and the information contained in them, are about the practices of torture and persecution in Sri Lanka and the steps, or lack of steps, being taken to address those practices. While the application of s 473DD(b)(ii) may be difficult in a given case, I discern no error in the Authority’s conclusion in the present case.

60    Further and in any event, I accept the Minister’s submission that any error by the Authority in respect of the country information did not deprive the appellant of the realistic possibility of a successful outcome. That is for two reasons. First, as stated by the Authority at [10] of its reasons, the Authority obtained new information, specifically information on the treatment of Sri Lankans of Tamil ethnicity and citizens who have departed Sri Lanka illegally and sought asylum abroad, from the most recent DFAT country report for Sri Lanka which was published on 24 January 2017. That report was more current than the various items of country information submitted by the appellant. Second, as set out earlier, the Authority rejected the appellant’s claims largely on credibility grounds. The country information submitted by the appellant was not directed to the individual circumstances of the appellant and could not have affected the grounds on which the Authority rejected the appellant’s claims.

Conclusion

61    For the foregoing reasons, in my view the appellant has failed to establish that the Authority’s decision under s 473DD of the Act to exclude from consideration the letter from the appellant’s wife and the country information involved jurisdictional error. I therefore dismiss the appeal with costs.

Associate:

Dated:    7 February 2020