FEDERAL COURT OF AUSTRALIA
IMMIGRATION ASSESSMENT AUTHORITY
DATE OF ORDER:
5 February 2020
THE COURT ORDERS THAT:
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
(Revised from the Transcript)
A Introduction and background
1 This is an appeal from orders made by the Federal Circuit Court by which the primary judge dismissed an application for judicial review of a decision of the second respondent (Authority), which had affirmed an earlier decision of a delegate of the first respondent (Minister) not to grant the appellant a Safe Haven Enterprise Visa (SHEV).
2 There is no need to set out the background to the matter, what occurred before the Authority, the nature of the Authority’s decision or what was in issue in the proceedings before the primary judge. They are summarised in a manner that is not the subject of any criticism in the decision below, being FIR17 v Minister for Immigration  FCCA 1678 at –. In short, it suffices to note for present purposes that the appellant claimed principally to fear harm due to his Tamil ethnicity and his political profile and activities in Australia, and claimed to have been abducted and tortured by the Liberation Tigers of Tamil Eelam (LTTE).
3 In the court below, the appellant advanced three grounds in his application but only two were ultimately pressed at the hearing by counsel. What has occurred in this Court is that in accordance with directions made by the Registrar, the appellant has filed what is described as an “Appellant Outline Submission”. Although there have been some minor variations made, it appears that the submissions provided to me are a replica of the written submissions before the primary judge.
4 The appellant’s notice of appeal to this Court advanced four grounds, which are convenient to set out in full:
1. The Court below erred in finding that the [Authority] had failed to properly consider the Applicant’s claims under s 36(2)(a) and s 36(2)(aa) of the Migration Act 1958 (“the Act”).
2. The [Authority] misconstrued the meaning of the term “new information” in s 473DC(1) of the Act.
Error in construing or characterising a claim - that is a reason why the applicant feared harm on return to Sri Lanka - as “new information”. In its initial application, the applicant mentioned that he would face harm due to his religious belief as Hindu. Applicant’s representative in his submission specially raised the claim that the applicant would face harm due to his religious belief. These claims were raised at the Departmental stage. However, the [Authority] erred by concluding that it was a new information. It is submitted that it is not a new information rather an information or claim raised at the Departmental stage and therefore, should not have been disregarded as a new information.
3. It was legally unreasonable for the [Authority] to exclude information in the applicant’s representative’s submission of 3 August 2017 from its consideration, pursuant to s 473DD of the Migration Act.
(a) The information in the submission was directly responsive and relevant to the veracity of information in a DFAT report on which the [Authority] relied.
(b) There was, contrary to the [Authority]’s finding, an explanation as to why the new information should be considered.
(c) The finding that there were no exceptional circumstances to justify considering the new information relied lacked an evident and intelligible justification.
4. It was legally unreasonable for the [Authority] to exclude information attached to or sent with the applicant's representative’s communication of 7 November 2017 from its consideration, pursuant to s 473DD of the Migration Act.
(a) The information in the submission was country information directly responsive and relevant to the veracity of information in a DFAT report on which the [Authority] relied.
(b) There was no reason evident or intelligible reason to exclude country information from the class of information admissible under s, 473DD.
(c) The finding that there were no exceptional circumstances to justify considering the new information relied lacked an evident and intelligible justification.
5 It is convenient to deal with each of the four grounds pressed before me in turn.
B Ground one
6 Before dealing with the substance of the first ground, it should be noted that the hearing today proceeded on the basis that the reference in that ground to the court below having found that the Authority failed to consider the appellant’s claim, was a typographical oversight. Putting that to one side, the first ground of appeal is directed to the primary judge having erred in finding that the Authority did not fail to properly consider the appellant’s claims pursuant to ss 36(2)(a) and 36(2)(aa) of the Migration Act 1958 (Cth) (Act). As the Minister submits, the ground is broadly stated, and absent any explanation or particulars of what claims the Authority is said to have failed to properly consider, it must fail: see DEC16 v Minister of Immigration and Border Protection  FCA 1285 at . Leaving aside this deficiency, given that the ground was not advanced below, even if it had any merit, the appellant would require leave to advance it on appeal: see VUAX v Minister for Immigration and Multicultural and Indigenous Affairs  FCAFC 158; (2004) 238 FCR 588 at 598-599 .
C ground two
7 As to the second ground of appeal, this relates to the ground abandoned by counsel appearing in the court below at the hearing. In these circumstances, the appellant faces an insuperable difficulty in alleging error given that the primary judge was not asked to deal with this contention. Ground two must fail for this reason alone.
8 But in any event, as articulated in the notice of appeal, the ground is devoid of merit. The error asserted is that the Authority misconstrued the meaning of the term “new information” in connexion with the claim that the appellant feared harm due to his Hindu religion. The appellant asserts that the Authority fell into error in treating the “claim” as “new information”. The first aspect of this ground relates to a question of whether a “claim” (being a substantial, clearly articulated argument relying on knowledge of established facts) can be characterised as “new information” for the purpose of s 473DC(1). This question of legal principle has been examined in two single judge appeals from the Federal Circuit Court. In CVK16 v Minister for Immigration and Border Protection  FCA 1434; (2017) 257 FCR 297, McKerracher J upheld (at 309 -) the finding of the judge below which was in the following terms (CVK16 v Minister for Immigration  FCCA 235 at ):
[I]t is in my view artificial to distinguish between “claims” and “information”. While a “claim” in the most general terms is simply an expression of fear of return to another country for some reason, a “claim” does not exist in a vacuum. It only carries with it meaning capable of consideration if it is accompanied by asserted facts and circumstances. Those facts and circumstances are undoubtedly “information” for the purposes of ss.473DC and 473DD of the Migration Act.
9 The decision of McKerracher J in CVK16 was later considered by Farrell J in AYK17 v Minister for Immigration and Border Protection  FCA 1053 where her Honour rejected a contention that a “claim” is severable from the information on which it is based (whether it is an entirely new claim or a variation of an old claim): at . Uninstructed by prior authority or a close analysis of the context in which the definition of “new information” appears, it might be thought that there is a logical distinction between the notion of a “claim” being a contention advanced by a referred applicant and the notion of “information” which might be regarded as the adjectival material gathered which may corroborate or detract from the strength of the contention.
10 Be that as it may, when one looks at Subdiv C of Div 3 of Pt 7AA of the Act it is understandable why, in both CVK16 and AYK17, the artificiality of a distinction between “claims” on the one hand and “information” on the other has been remarked upon.
11 In the circumstances, it was open to the Authority to treat the appellant’s claim that he feared harm as a Hindu, together with the information that this was because Hindus faced discrimination and degrading treatment, as “information” for the purpose of s 473DC(1).
12 The second aspect of this ground therefore becomes whether the Authority erred in finding that the claim and related information were in fact new information, being information “not before the Minister when the Minister made the decision”.
13 Before the delegate, it appears there were only two references to the appellant’s Hindu religion. The first is at the front of the appellant’s SHEV application, which merely identifies the appellant’s religion as “Practice Hinduism”: at AB1. The second, at AB242, was a submission at  of a lengthy document provided to the delegate, attached to the appellant’s statutory declaration of 9 March 2016.
14 The relevant part of the document is in the following terms:
Persecuted on the basis of Race and Religion
57. We submit that the [appellant] belongs to the minority Tamil ethnic group in Sri Lanka and practice (sic) the Hindu religion. The reports indicate that the Tamil minority ethnic group in Sri Lanka faces serious harm and the government is either unable or unwilling to protect Tamils in Sri Lanka.
58. On the basis (sic), we note that the [appellant] will face persecution in Sri Lanka under the above convention reasons.
15 Although this part of the submission clearly articulates a claim to fear harm on the basis of the appellant’s Tamil ethnicity, there is no more than a reference to the fact of the appellant’s religion. It appears no claim was advanced before the delegate which asserts the appellant fears harm on the basis of his practice of the Hindu religion.
16 From the Authority’s decision, it is evident that the appellant, by his representative, made a series of submissions and statements subsequent to the delegate’s decision. The statement which the Authority found to contain the relevant “new information” (being the fear of harm as a member of the Hindu religion) was the appellant’s statutory declaration made on 15 February 2017 (at AB455), where he said at :
In addition, I belong to Hindu minority religious group and there are evidence (sic) to indicate that Hindus face significant discrimination and suffer degrading treatment in Sri Lanka. Further, due to my stay in Australia, I would be perceived as a person with wealth and would be abducted to extort money from me.
17 This was referred to by the Authority at AB713. The Authority found that the information advanced by the appellant that he feared harm as a Hindu, including because Hindus faced discrimination and suffer degrading treatment, was new information pursuant to s 473DC. For the reasons I have already outlined, this conclusion was open. The Authority then determined it would not consider the new information, given that the applicant did not satisfy the Authority of either limb of ss 473DD: see CNY17 v Minister for Immigration  HCA 50; (2019) 94 ALJR 140 at 154–155  (Nettle and Gordon JJ). This aspect of the Authority’s reasoning was not challenged.
D GROUNDS THREE AND FOUR
18 Grounds three and four allege legal unreasonableness in the way in which the Authority dealt with two further sets of new information, being: (a) the appellant’s representative’s submission of 3 August 2017; and (b) the appellant’s representative’s communication of 7 November 2017. These grounds were raised in the exact same terms before the primary judge (being grounds two and three below).
19 The primary judge considered these two grounds in great detail and, although lengthy, it is useful to set out his Honour’s reasoning (at -):
The issues between the parties relate to the interpretation and application of s.473DD of the Migration Act, which states:
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 definition of “new information” may be found at s 473DC(1) as:
...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.
The first point to note is that the plurality of the High Court, in Plaintiff M174/2016 v Minister for Immigration stated at :
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).
The second point to note is that in Plaintiff M174/2016 all members of the Court held that an Authority decision is subject to the requirements of legal reasonableness.
The applicant’s second ground (the first having been abandoned) impugns  of the Authority’s decision where it states:
On 3 August 2017 the applicant's representative provided a further submission to the IAA in support of the applicant's claims for protection. The information consists of a number of extracts from, and links to, country information reports and media articles which were not before the delegate and which is new information. The extracts are from reports which postdate the date of the delegate's decision and on that basis I accept the information could not have been provided to the Minister before the decision was made. The extracts are country information; it is not credible personal information which was not previously known and had it been known, may have affected consideration of the applicant's claims. No explanation has been provided about the application of the new information to the applicant's circumstances. I am not satisfied that exceptional circumstances exist to justify considering the new information.
The applicant notes that the Authority got its own new information, in the form of the DFAT country report on 24 January 2017.
It is common ground that the Authority relied upon the updated DFAT report. The applicant contends that in these circumstances it was unreasonable for the Authority to decline to consider the information contained in the submission of 3 August 2017 which “contradicted” and was at least in part more recent than the information in the DFAT report.
A similar submission is made in relation to Ground 3 which impugns  of the Authority’s reasons where it states:
On 7 November 2017 the applicant's representative provided a further submission to the IAA attaching two articles - one about persecution of religious minority groups in Sri Lanka and the other regarding pressure brought to bear by military intelligence on civil organisations to inform on participants in their activities. Neither article was before the delegate and is new information. On the basis of the date of the Tamilnet article, I accept that it could not have been provided to the delegate before the date of the decision. However, the article is country information; it is not credible personal information which was not previously known and had it been known, may have affected consideration of the applicant's claims. In relation to the article titled 'Violence against religious minorities in Sri Lanka' it is undated and there is no indication in the covering email of its date of publication. Even if I accept that it was published after the date of the delegate's decision, it is country information not credible personal information which was not previously known and had it been known, may have affected consideration of the applicant's claims. The applicant has not satisfied me in relation to s.473DD(b). No explanation has been provided about the application of the new information to the applicant's circumstances and I am not satisfied that exceptional circumstances exist to justify its consideration.
This case concerns the contest of ideas relating to the circumstances of Hindu Tamils in Sri Lanka. The applicant provided the Authority with a wealth of information seeking to point out difficulties confronting persons of his ethnicity and religion. The Authority saw sufficient significance in the information contained in the DFAT report that it purported to invite the applicant to comment on that new information. That invitation was not required by the terms of s.473DE(3) but it was not an error for the Authority to go beyond the strict terms of that provision. The Authority received a response from the applicant’s representative and decided that there were exceptional circumstances to justify considering new information proffered on behalf of the applicant in response to the invitation.
The applicant’s basic point is that if there were exceptional circumstances to justify considering the new information proffered in response to the invitation there were likewise exceptional circumstances to justify considering the other new information provided on behalf of the applicant on 3 August 2017 and on 7 November 2017. That may be so but, in my opinion, that amounts to no more than a disagreement over the merits of the Authority’s view of what were exceptional circumstances. It was, in my opinion, within the range of possible decisions that could have been made by the Authority that information provided in express response to the invitation to comment should be considered on the basis of exceptional circumstances but that other information volunteered and wholly or substantially unexplained at different times did not give rise to exceptional circumstances justifying the consideration of that information.
Further, I agree with the Minister’s submissions concerning these grounds.
First, the applicant submits that the Authority erred in its approach to s.473DD by reference to its reasoning at  in that it was mistaken that “no explanation ha[d] been provided”. The applicant submits that such an explanation as to how the documents would affect the applicant was provided at CB 495-496. However, that section of the submission does not give any explanation about the application of the new information; rather it provides a summary of the content of the information.
Further, the applicant gave no explanation in the 3 August 2017 submission as to what exceptional circumstances existed that would justify consideration of the new information sought to be advanced. To the extent that there was some attempt by the applicant’s representative to “link” the content of the country information reports to the applicant’s circumstances, this does not point to exceptional circumstances. As the plurality of the High Court stated in Plaintiff M174/2016 at , “what will amount to exceptional circumstances is inherently incapable of exhaustive statement”. Further, whilst incapable of exhaustive statement, exceptional circumstances are such “as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon” or is not “regularly, or routinely, or normally encountered”. The Full Federal Court has described s.473DD(a) as requiring an “evaluative judgment” rather than satisfaction of the existence of particular facts.
The applicant submits further that the Authority did not explain why “special circumstances would not exist” to consider the new information where that information was relevant to the human rights situation in Sri Lanka affecting persons such as the applicant, and where the information was “entirely inconsistent” with the DFAT report which the Authority took into account at , being the 24 January 2017 report. Two points may be made in respect of that submission.
First, for the applicant to submit that the Authority erred in its approach to its satisfaction of the existence of exceptional circumstances merely by reference to the fact that the new information under consideration was “relevant” to the applicant’s claims does not identify any error in the Authority’s approach. To the contrary, Part 7AA plainly envisages that to be considered, new information will be not merely relevant to an applicant’s claims, or capable of affecting consideration of an applicant’s claims, but that exceptional circumstances will exist justifying consideration of the new information. The applicant does not identify what was exceptional about the new information provided in the 7 November 2017 submission.
Secondly, the applicant’s representative did not advance in the 3 August 2017 submission any argument that exceptional circumstances existed because the new information sought to be provided contradicted, or answered, the DFAT report. It was on 11 October 2017 that the Authority sent the 24 January 2017 DFAT report to the applicant for comment. The applicant cannot identify jurisdictional error in the Authority’s approach by reference to its failure to consider submissions that were never advanced to it.
(footnotes and internal references omitted).
20 What can be seen is a consideration of whether or not the Authority fell into jurisdictional error in its understanding or application of s 473DD to the information provided by the appellant to the Authority in what is described as the 3 August 2017 and 7 November 2017 submissions. Despite the fact that neither ground of appeal before me seeks to identify error in the primary judge’s approach to addressing the grounds raised and argued before him, the primary judge, in my view, was clearly correct (for the reasons his Honour gave) to have rejected those grounds, and no appellable error is identified.
21 Having rejected all four grounds of appeal, the appellant has not established relevant error in the judgment of the primary judge. During the course of oral submissions in reply, the appellant raised the further point that recent political developments in Sri Lanka have increased his fear of return and that within recent weeks there have been various developments which have demonstrated harm occasioned to political detainees. These comments from the bar table were unsupported by evidence, but, in any event, even if established by evidence, could not rationally bear upon whether or not the primary judge fell into error.
22 Accordingly, the appeal must be dismissed with costs.