FEDERAL COURT OF AUSTRALIA

FKM17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 192

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

1    The appellant is a Sri Lankan national of Tamil ethnicity from Batticaloa in the Eastern Province of Sri Lanka who arrived in Australia by boat without a visa on 26 October 2012. As such, he was an “unauthorised maritime arrival” within the meaning of that term in the Migration Act 1958 (Cth). He was held in immigration detention from the time of his arrival until 24 August 2013 when he was released into the community presumably on a temporary protection visa. He claims to fear serious harm in Sri Lanka because of his ethnicity, his “imputed” political opinion as a supporter of the Tamil National Alliance targeted by the Pilliyan (or Pilleyan) Group, and his membership of the “social group [of] failed asylum seekers who left Sri Lanka illegally”.

2    In December 2016 the appellant applied for a form of protection visa known as a Safe Haven Enterprise Visa (“SHEV”). The application was considered by a delegate of the responsible Minister who was not satisfied that the appellant met the eligibility criteria in s 36 of the Act and therefore decided not to grant the visa. That is to say, the delegate was not satisfied that the appellant was a refugee within the meaning of s 5H(1) of the Act because she was not satisfied that the appellant had a well-founded fear of persecution on any of the bases covered by his claims or because there was a real chance that he would suffer significant harm if he were to return to Sri Lanka. In short, while the delegate accepted that the appellant was a Tamil from the Eastern Province of Sri Lanka, she was not satisfied that he had a profile which would make him of adverse interest to the authorities, that he faced serious harm for any of the claimed reasons, or that he was at risk of significant harm if he were to return to Sri Lanka as a failed Tamil asylum seeker.

3    The appellant’s application was then referred to the Immigration Assessment Authority (“Authority”) for review. But the Authority was not satisfied either and so affirmed the delegate’s decision. The appellant then applied to the Federal Circuit Court for judicial review of the Authority’s decision, alleging that the Authority had erred in the exercise of its jurisdiction. But the primary judge was not persuaded that any of the alleged errors had been made and dismissed the application. This is an appeal from that judgment.

The appellant’s claims

4    The appellant’s claims as summarised by the Authority were as follows (without alteration):

•    He is an ethnic Tamil and a Hindu from the Eastern province.

•    He voted for the Tamil National Alliance (TNA) in the September 2012 Provincial elections.

•    After he voted, he was playing on a field near his home when he was approached by members from the Pilliyan Group and asked to go and vote for them. He said that he had already voted for the TNA. He was assaulted by a person from the van.

•    The next day men from the Pilliyan Group came to his home looking for him. He ran away. They spoke to his uncle and enquired about his whereabouts. His uncle said that he was not there. They told his uncle that they would kill him if he did not present himself to the Pilliyan headquarters the next day. He did not go to the headquarters the next day.

•    One week later the Sri Lankan Police (SLP) came to his home looking for him and accused him of holding arms and ammunition. He was not home. The SLP said he should surrender the arms and report to the police station for investigation. He did not report to the police station.

•    He feared for his life and his uncle arranged for him to leave Sri Lanka.

•    On 17 February 2016 the SLP visited his uncle’s home and implied that they suspected him of hiding ammunition. His uncle said that he was overseas and the SLP said that if he was ever to return he would face harm.

•    He fears harm and white-van style abduction if he is returned to Sri Lanka from the SLP Criminal Investigation Department (CID), Pilliyan Group and paramilitary organisations because he has been suspected of hiding weapons and ammunition, he is a young Tamil from the Eastern province, he supported and voted for the TNA, imputed association with the LTTE, he is a failed asylum seeker who departed illegally and has remained away for so long and as a result of a recent shooting incident by unidentified persons in Batticaloa.

•    He also has mental health issues from the events he suffered having fled Sri Lanka.

The course of the review process and the decision of the Authority

5    The Authority’s obligation was to review the delegate’s decision: s 473CC. The Authority’s powers and obligations in conducting such a review are set out in Pt 7AA Div 3 of the Act. Subject only to the terms of Pt 7AA, the Authority is required to conduct the review on the papers, without accepting or requesting new information, and without interviewing the referred applicant: s 473DB. For the purposes of making a decision, it is prohibited from considering any “new information” unless it is satisfied of the existence of two conditions. “New information” is defined in s 473DC(1) to mean any documents or information that were not before the Minister when the Minister decided the visa application and that the Authority considers may be relevant. The first condition upon which it may consider the information is that there are exceptional circumstances to justify doing so. The second is that the review applicant has satisfied the Authority either: that the new information was not, and could not have been, provided to the Minister before the Minister made the decision or that the information 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”. “Personal information” is defined in s 5(1) of the Act to mean “information or an opinion about an identified individual, or an individual who is reasonably identifiable”.

6    On 3 May 2017, the appellant’s migration agent emailed the Authority attaching a submission and “new information”. In the submission the agent referred, amongst other things, to a statement made by the appellant during his SHEV interview that he had recently been informed by his uncle that there was “a possible warrant of arrest issued under [the appellant’s] name” and the uncle had advised the appellant not to return to Sri Lanka. The agent wrote that he had been instructed by the appellant that the uncle was unable to provide any written statement about the matter because he was a current public servant and feared that the authorities might take action against him and members of his family. The agent made a submission to the effect that the delegate did not properly consider this matter and that her treatment of this issue in her decision denied the appellant procedural fairness.

7    The Authority considered that the information about the uncle was “new information” and that it could not take it into account. It was not satisfied that the information was “credible personal information”, that it could not have been provided to the delegate before a decision was made, or that if it had been known it would have affected the consideration of his claims. Nor was the Authority satisfied that exceptional circumstances existed to justify considering the new information. In so doing, the Authority noted in its reasons that in the interview the delegate had questioned the appellant at length about his claim that there was an arrest warrant pending against him and put him on notice that she found the claim difficult to accept. The Authority’s reasons go on to say:

At his PV interview the applicant said that his uncle was given an arrest warrant by the police. When asked whether he had asked his uncle what was written in the arrest warrant the applicant said that his uncle did not ask and that the police had said that they had come to arrest him. I am not persuaded by the applicant’s reasons that his uncle was unable to provide a written statement regarding the warrant as he was currently serving as a public servant and he feared the authorities might take action against him. The applicant has previously said that the police delivered the arrest warrant to his uncle that indicates that the authorities would be aware of his circumstances and this is inconsistent with his reasoning that his uncle fears the authorities. I am not satisfied that this is credible personal information. I am not satisfied that this information could not have been provided to the delegate before a decision was made or that if known it would have affected the consideration of his claims. I am also not satisfied that exceptional circumstances exist to justify considering this new information.

8    The new information identified by the agent was an article from the Sunday Observer of 12 February 2017 about the formation of a new political party by the leader of the Karuna Group. I understand the Karuna Group to be a reference to the Pilleyan Group, members of which the appellant alleged had assaulted and threatened him in 2012 after he refused to follow their orders to vote for their political party, the Tamil Makkal Viduthalai Pulikal (“TMVP”). The terms are used interchangeably in the appellant’s documents and neither the Minister’s delegate nor the Authority perceived them to be different. The delegate stated that the TMVP was previously known as the Karuna Group, having been led by former Deputy Minister Vinayagamoorthy Muralitharan alias Karuna Amman, who was succeeded as leader by former TMVP National Coordinator and Eastern Provincial Councillor, Sivanesadurai Chandrakanthan alias Pilleyan.

9    The article reads as follows:

Vinayagamoorthy Muralitharan alias Karuna Amman yesterday launched a new political party in Batticaloa, the Tamil United Independent Front (Thamilar Aikkiya Suthanthira Munnani).

Karuna Amman said the purpose of forming a new party is to provide livelihood opportunities to former LTTE cadres and to assist widows of LTTE cadres and war victims.

The party will be based in the East and more focused on issues pertaining to the North and Eastern parts of the country and the people living therein.

Batticaloa district based civil society activist G. Kamaladas has been named as the General Secretary of the party. Accordingly the party will be registered immediately and the party office will be established in the Batticaloa. According to reports, Karuna has been critical of TNA’s political stance in light of the current plight of Tamil people in the North and East. He said, “TNA is internally divided and continues to deny role played by LTTE and Tharaki Sivaram on TNA’s formation. There are no leaders to lead Tamils after the defeat of the LTTE as the TNA indirectly supports the Government while sitting in the Opposition while people in the North and the East are suffering.”

Nawamm Thiravidar an existing political party has pledged its fullest support to the Karuna’s newly formed political party.

The launch was held at Hotel ‘Focus’·in Batticaloa.

10    The appellant’s submissions acknowledged that this information was new but urged the Authority to receive it, explaining:

This article was published closed (sic) to the SHEV interview and on that basis, could not have been provided to the delegate. Had this information been known by the delegate, it may have affected the consideration of the referred applicant’s claims. We state that this is an exceptional circumstance especially when a person’s life is at risk.

11    The Authority was not satisfied by the explanation. It observed that the appellant had received assistance in preparing his visa application and statement and had been represented at the interview with the delegate. It did not accept the agent’s contention that the article could not have been provided to the delegate, since the interview with the delegate took place on 27 March 2017 (some six weeks after the article was published), and the decision was not made until 7 April 2017 (nearly two months after publication). In these circumstances, the Authority was not satisfied that the article could not have been provided to the delegate before the decision was made. It was also not satisfied that the article was “credible personal information” or that, if it had been known, it would have affected the consideration of the appellant’s claims. Further, the Authority was not satisfied that there were exceptional circumstances to justify considering the information.

12    The Authority accepted that the appellant was an ethnic Tamil from the Eastern Province of Sri Lanka. It also accepted that he had voted for the TNA in the 2012 provincial elections. But it had significant concerns about the veracity of the appellant’s evidence concerning what happened thereafter and did not accept that the stress of the hearing or the appellant’s mental health condition accounted for the “discrepancies” in the appellant’s evidence. In the result, the Authority did not accept any of the appellant’s evidence about the events he alleged had occurred in Sri Lanka involving him or his family members which formed the basis of his claims to fear harm there.

13    In particular, the Authority was not satisfied that the appellant would have been singled out and targeted by the Pilliyan Group when, on his own account, all he had done was to vote in the provincial elections: he did not campaign for the TNA and was not a member or supporter of the TNA, and no-one in his family was involved with, or supported, the TNA. The Authority considered it was “implausible that someone with the profile of the [appellant] would have attracted the attention [of] men from the Pilliyan Group”. The Authority did not accept that men from the Pilliyan Group told him to vote for the TVMP and, even if they had, the Authority did not accept that they would have told him to do so after he had told them he had already voted.

14    Neither did the Authority believe the appellant’s claim to have been abducted by the men in their van. The Authority observed that:

The applicant claimed in his PV interview that the men put him into their van and took him with them, however he has made no mention of this in his arrival interview or his PV application. In his arrival interview, when he was asked whether he was detained or put into jail regarding this incident, he said no. The applicant does not elaborate on being taken by the men from the Pilliyan Group at his PV interview. I am of the view that if the applicant was taken by these men, it would have been a significant event and one that he would have revealed and elaborated on earlier rather than in an offhand comment at his PV interview. I also find it concerning that the applicant stated that he was not detained at his arrival interview. I do not accept that after he voted in the Provincial elections in September 2012 the applicant was approached be persons in the Pilliyan Group or anyone for that matter. I do not accept that he was beaten or that he was taken in their van. I do not accept that he was threatened or harmed by anyone. I do not accept these claimed events.

15    The appellant told the Authority that between the incident on election day and the time the appellant left Sri Lanka the following month, men came to his house looking for him and his uncle told them that he was not there. The appellant’s evidence was that the men told his uncle that he needed to surrender the appellant to them immediately or he would be shot. The appellant said that he then went into hiding at a neighbour’s home. The Authority also referred to statements made by the appellant about such matters at the interview with the delegate including that the SLP told his uncle that they wanted to arrest him because he was suspected of being a cadre of the LTTE (Liberation Tigers of Tamil Eelam) and because he had weapons. The appellant apparently told the delegate that there was a TMVP office outside his home and the SLP alleged that he had gone and taken arms from there.

16    The Authority considered these claims to be “improbable and fanciful” and did not accept that the SLP informed the appellant’s uncle that they had found arms near his home or that they returned with an arrest warrant. Indeed, the Authority did not accept that the SLP ever came to his uncle’s home or that the appellant’s details were ever recorded. It could not understand how the appellant would have come to the attention of either the Pilleyan Group or the Sri Lankan authorities, let alone that he would have been suspected of being an LTTE cadre or accused of possessing weapons. The Authority was not satisfied that there was any credible information to suggest that he was even of interest to such people. It noted that the representative had referred to a 2016 article referring to a recent discovery of weapons and ammunition very close to the appellant’s house. The Authority said that it could only find one document which referred to the discovery of a cache of weapons in Batticaloa but the document was undated, is general in nature, and makes no mention of the appellant. Consequently, the Authority was not satisfied that it had any connection to the appellant and therefore accorded it little weight.

17    The Authority concluded that the appellant had fabricated his accounts about what had happened after he had voted in the September 2012 elections in order to strengthen his claims for protection and did not accept that he suffered from any consequential fear or anxiety.

18    Having regard to the scope of the appeal, it is unnecessary to refer to the Authority’s other findings.

The application for judicial review

19    Six grounds were pleaded in the application for judicial review, only three of which (grounds 1, 4 and 5) are relevant to the appeal.

20    In ground 1 of the judicial review application, the appellant alleged that the Authority failed to properly exercise its jurisdiction in respect of the claims he had made in relation to the arrest warrant by applying the wrong test or otherwise misconstruing s 473DD of the Migration Act. In particular, he contended that the issue of the arrest warrant or his claims in relation to the arrest warrant had been raised before the delegate and was not therefore new information.

21    The primary judge rejected this ground, holding that the Authority correctly distinguished between a submission directed to an established pool of factual information and new factual material sought to be placed before it. His Honour held that the Authority did not misconstrue or misapply the expression “exceptional circumstances”, as the appellant had apparently submitted. Besides, since the requirements of paragraphs (a) and (b) of s 573DD are cumulative, the Authority was prohibited from considering the information unless it was satisfied of both requirements. In other words, it did not matter if the Authority had erred in its construction of “exceptional circumstances” because the appellant was unable to satisfy it of either of the conditions in para (b). On the question of whether the information was new, his Honour said this:

I accept that there is no bright line between what is “information” and what is a submission or explanation. An applicant may, in a submission, offer an explanation why further details about a particular claim cannot be provided. That may not necessarily be “information” for the purposes of the review; but, as I put to counsel for the applicant, if the submission concerning the uncle’s inability to provide a written statement was information, in the sense of facts or circumstances having some potential bearing on the consideration of the applicant’s claims, then it was certainly new information because it had not been provided previously. If it was not information at all, because it was simply an explanation why further details about the arrest warrant could not be provided, then I do not think that any error in characterisation by the Authority would go to jurisdiction because it would not be material.

22    In ground 4 of the application for judicial review, the appellant alleged that the Authority “incorrectly applied s 473DD”, “thereby” misconstruing the section. In particular, he claimed that the Authority had failed to take into account “all matters constituting exceptional circumstances” and applied the wrong test; “should have engaged with all circumstances in complying with the section”; and failed to consider “the entirety of matters under s 473DD singularly and cumulatively in consideration of exceptional circumstances”.

23    This ground was concerned with the article submitted to the Authority by the appellant’s agent together with his submission.

24    The primary judge referred to the explanation given to the Authority and noted the Authority’s conclusions. His Honour rejected the allegations on the basis that the Authority had expressly considered the appellant’s explanation, provided reasons why it was not persuaded by it, and the appellant had “not identified any fact or matter materially bearing upon the Authority’s consideration of whether exceptional circumstances existed that was not taken into account”. His Honour also held that “the Authority did not otherwise misconstrue or misapply the phrase ‘exceptional circumstances’”.

25    In ground 5 the appellant alleged that the Authority had failed to make findings and give consideration to the appellant’s claim to fear abduction by white vans and had not disposed of the claim.

26    The primary judge rejected this ground too. His Honour held that the specific rejection by the Authority of the appellant’s account of the incidents involving the Pilliyan group and its assessment that the appellant did not face a real chance of serious harm on return due to his minor involvement with the TNA sufficiently disposed of his claim to fear abduction by white vans.

The scope of the appeal

27    As the Minister observed in his submissions, grounds 1 and 2 of the notice of appeal raise the same issue, namely, whether the primary judge erred in concluding that the Authority did not incorrectly apply or misconstrue s 473DD of the Act, but the focus of the two grounds is different. Ground 1 focuses on the information relating to the arrest warrant, ground 2 on the newspaper article.

28    Ground 3 relates to the appellant’s claim that he was afraid he would be a victim of “white van abduction”. The appellant alleges that the primary judge should have found that the Authority failed to make findings and give consideration to his claim to fear “abduction by white vans” and had not disposed of that claim.

29    The notice of appeal was drafted by a barrister but no submissions were filed in support of the appeal. The appellant appeared at the hearing without legal representation. Through a Tamil interpreter, I explained to him each of the grounds of appeal and asked him what he had to say about them. On each occasion he had nothing to say. I had hoped I might derive some assistance from the submissions that were filed on his behalf in the court below, but I was wrong.

Did the primary judge err in holding that the Authority did not incorrectly apply or misconstrue s 473DD of the Act (grounds 1 and 2)?

30    Grounds 1 and 2 of the notice of appeal pick up the complaints in grounds 1 and 4 of the application for judicial review.

31    There are three aspects to ground 1, as outlined in the particulars set out in the notice of appeal.

32    The first is that, as “the issue of arrest warrant/claims relating to arrest warrant” had been raised before the delegate, the statement made in the submission of 3 May 2017 concerning the arrest warrant was not new information. The second is that the primary judge should have found that the Authority’s finding to the contrary reflected a misconstruction of s 473DD.

33    Both propositions must be rejected.

34    In the court below the appellant’s counsel argued that the information was not “new information” but “information on claims already made and information already submitted”. This was a false dichotomy. True it is that it was information concerning existing claims but the information in question had not already been submitted to the Authority. “Information” in the context of s 473DD means “a communication of knowledge about some particular fact, subject or event” and “new information” refers to such a communication which meets the two conditions set out in paragraphs (a) and (b) of s 473DC(1): Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at [24] (Gageler, Keane and Nettle JJ). In other words, new information is a communication of knowledge about a particular fact, subject or event contained in a document or otherwise conveyed to the Authority and which the Authority considers relevant but which was not before the Minister when the decision was made not to grant the visa.

35    The statement by the appellant’s representative in the submission made to the Authority that the appellant’s uncle could not provide a written statement in relation to the arrest warrant because he was a current public servant and that he feared the authorities might take action against him and his family members answered that description. The appellant did tell the delegate that his uncle had informed him there was an arrest warrant out for him in relation to the discovery of weapons. The material before the Court does not indicate that the Minister or his delegate was ever informed of the reasons the uncle was unable to provide a written statement in relation to the matter. It follows that the primary judge did not err in rejecting the appellant’s allegation that the Authority was wrong to describe this as new information since, in the absence of evidence to the contrary, the information was not before the delegate at the time she made her decision. The Authority’s conclusion that the information was new did not reflect a misconstruction of s 473DD.

36    The third aspect of the allegation in ground 1 relates to the statement by the primary judge at [54] of his reasons that “[t]here was nothing in relation to the uncle’s claimed inability to provide any further information in the form of a written statement that was an exceptional circumstance”. In the particulars to this ground of appeal, the appellant alleged that his Honour fell into error in making the statement. But he did not identify the error.

37    As the Minister submitted, having determined that the relevant information was new, the Authority proceeded to make findings on both limbs of s 473DD. The Authority’s reasoning process is not easy to follow and is at least arguably illogical. With respect to these matters the Authority said this:

I am not persuaded by the applicant’s reasons that his uncle was unable to provide a written statement regarding the warrant as he was currently serving as a public servant and he feared the authorities might take action against him. The applicant has previously said that the police delivered the arrest warrant to his uncle that indicates that the authorities would be aware of his circumstances and this is inconsistent with his reasoning that his uncle fears the authorities. I am not satisfied that this is credible personal information. I am not satisfied that this information could not have been provided to the delegate before a decision was made or that if known it would have affected the consideration of his claims. I am also not satisfied that exceptional circumstances exist to justify considering this new information.

(Emphasis added.)

38    The Minister’s lawyer, Mr Fisher, accepted that the essence of the Authority’s reasons was contained in the sentence emphasised in the above extract. That it was underpinned its conclusions on both limbs of para 473DD(b). When pressed, Mr Fisher struggled to give it a meaning. On a fair reading of the reasons, he agreed that the Authority was saying that the fact that the appellant had previously said that the police delivered the arrest warrant to his uncle indicates that the authorities would be aware of the uncle’s circumstances, more particularly, that the uncle was a serving public servant. Mr Fisher was unable to take the Court to any evidence to support such an inference. More importantly, even if the authorities were aware that the uncle was a serving public servant, it is difficult to understand how, as a matter of logic, that circumstance was inconsistent with the proposition that his uncle feared that the authorities might take action against him if he were to provide a written statement in relation to the arrest.

39    Formation of the state of satisfaction as to the existence of the statutory criteria for considering the new information is “conditioned by a requirement” that the Minister or his or her delegate or the Authority on review “must proceed reasonably and on a correct understanding and application of the applicable law”: Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at [34] (Kiefel CJ, Gageler and Keane JJ). A decision-maker who reasons illogically will have proceeded in a way that is legally unreasonable: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [72] (Hayne, Kiefel and Bell JJ).

40    Mr Fisher suggested that the Authority was saying that the appellant’s uncle was already seized of information relating to the arrest warrant and “the logic might be he would be at no greater peril if he provided a written statement”. That is why, he intimated, the Authority did not regard the information as credible. But that is not what the Authority said and, “where there are reasons for the exercise of a power, it is to those reasons to which a supervising court should look in order to understand why the power was exercised as it was”: Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at [47] (Allsop CJ, Robertson and Mortimer JJ). Otherwise, the justification for a finding or conclusion would not be evident. While a beneficial approach is to be taken to the reasons of an administrative decision-maker and one must make allowances for loose language and unhappy phrasing, a beneficial approach to the reasons does not demand that any ambiguity must be resolved in favour of the decision-maker: see, for example, SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9 (Stone J) at [26] and Lesianawai v Minister for Immigration and Citizenship [2012] FCA 897; 131 ALD 27 at [48] and the other cases referred to there.

41    Be that as it may, no allegation of illogical reasoning is made in the notice of appeal. Nor, it appears, was such an allegation made in the court below. What is more, as the Minister argued, even if the Authority’s reasons for not considering the new information were illogical, it could not be set aside on that account. Relief is only available to the appellant if the decision of the Authority was affected by jurisdictional error: Migration Act, s 474; Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76]–[78] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ). Jurisdictional error in this sense “consists of a material breach of an express or implied condition of the valid exercise of a decision-making power conferred by [the Migration] Act”: Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22 at [23] (Gageler and Keane JJ). For this reason, “ordinarily … breach of a condition cannot be material unless compliance with the condition could have resulted in a different decision”: Hossain at [31] (Kiefel CJ, Gageler and Keane JJ).

42    In the present case, the apparently illogical reasoning deployed by the Authority in dealing with the appellant’s submissions about the reasons for the absence of a written statement from his uncle affected the conclusions it reached on whether it was entitled to have regard to the new information. But it was not material. That was because, as Mr Fisher put it in argument, the Authority’s rejection of the appellant’s evidence about the existence of an arrest warrant did not depend on the absence of a written statement from his uncle. Rather, “its disbelief … was far more deep-seated”. It was based on the absence of evidence to suggest that the appellant was of any interest to the authorities.

43    The allegations made in ground 1 are not made out. Nor am I satisfied that the Authority’s reasons were otherwise infected by jurisdictional error.

44    In ground 2 of the notice of appeal, the appellant pleaded that the primary judge “should have found that the Authority fell into jurisdictional error in failing to properly exercise its jurisdiction” concerning the article in the Sunday Observer and should have found that the Authority incorrectly applied s 473DD, “thereby” erroneously construing s 473DD. By reference to the particulars, it appears that the allegation is that the Authority failed to take into account all matters constituting exceptional circumstances, both “singularly and cumulatively” and applied the wrong test.

45    “Exceptional circumstances” is not defined in the Act and consequently carries its ordinary meaning. To be exceptional, circumstances need not be unique, rare or unprecedented: Plaintiff M174 at [30]. But they do need to be out of the ordinary, unusual, special or uncommon: AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111; 162 ALD 442 at [13]. To be considered exceptional, the circumstances cannot be those which are “regularly, routinely, or normally encountered”: Plaintiff M174 at [30].

46    It would be wrong to take an unduly narrow approach to the expression “exceptional circumstances” in s 473DD(1) and all relevant matters that might bear on the question should be taken into account in determining whether the circumstances are reasonably to be regarded as exceptional: BVZ16 v Minister for Immigration and Border Protection (2017) 254 FCR 221 at [41] (White J); Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111 at [104] (Kenny, Tracey and Griffiths JJ). But there is no reason to conclude that the Authority took an unduly narrow approach or failed to take into account all relevant circumstances.

47    The question for the Authority was what, if anything, took the circumstances of the appellant’s case out of the ordinary or usual course so as to justify consideration of the information: AQU17 at [15]. In the submission to the Authority, the appellant’s representative said that the information in the article might have affected the consideration of the appellant’s claims if it were known to the delegate before the decision was made. It was this which was said to be an exceptional circumstance “especially when a person’s life is at risk”. The Authority expressly dealt with, and rejected, the proposition that, had the information been known it would have affected its consideration of the appellant’s claims. Since the very basis for a protection visa is that the person is at risk of serious or significant harm, I fail to see how a risk of this kind can be an exceptional circumstance for the purpose of s 473DD. Since the appellant failed to identify any matter that the Authority should have taken into account but did not, this ground of appeal must fail.

Did the primary judge err in holding that the Authority did not fail to deal with the claim of “abduction by white vans” (ground 3)?

48    I am not persuaded that the primary judge erred in this respect.

49    As the Minister put it in his submissions, the appellant’s claim to fear harm based on white van abductions by the security forces implicitly depended for its success on the appellant having a profile of a kind that would attract the adverse attention of the security forces. That was consistent with the way in which the Authority characterised the claim at [7] of its decision. On the Authority’s finding, which was not challenged as legally unreasonable, the appellant did not have a profile of that kind. As the Full Court (French, Sackville and Hely JJ) observed in WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 236 FCR 593 at [47]) with respect to decisions by the Refugee Review Tribunal on a review of a decision by the Minister or the Minister’s delegate:

The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected …

50    Here, the Authority had rejected the factual premise upon which the appellant’s contention rested. In these circumstances, its failure to expressly reject the appellant’s claim to fear white van abductions did not signify that it had failed to consider the claim. I respectfully agree with the primary judge’s conclusion that the Authority had sufficiently disposed of the appellant’s claim to fear abduction by white vans.

51    Consequently, ground 3 also fails.

Conclusions

52    None of the grounds is made out. It follows that the appeal should be dismissed. The appellant should pay the respondent’s costs.

Associate:

Dated:    25 February 2020