FEDERAL COURT OF AUSTRALIA

AIC18 v Minister for Immigration, Citizenship and Multicultural Affairs [2020] FCA 693

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant is to pay the first respondent’s costs of the appeal, fixed in the sum of $3,500.00.

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

REASONS FOR JUDGMENT

CHARLESWORTH J:

1    The appellant appeals from a judgment of the Federal Circuit Court of Australia (FCCA) dismissing his application for judicial review of a decision of the Immigration Assessment Authority: AIC18 v Minister for Immigration & Anor [2019] FCCA 2103.

2    The appellant is a citizen of Pakistan of Hazara ethnicity. He arrived in Australia on 28 March 2013 as an irregular maritime arrival. On 13 May 2016, the appellant made an application under the Migration Act 1958 (Cth) for an XE-790 Safe Haven Enterprise visa. A delegate of the then-named Minister for Immigration and Border Protection declined to grant the visa. That decision was automatically referred to the Authority for review under Pt 7AA of the Act. The Authority affirmed the delegate’s decision.

3    The grounds of appeal allege that the Authority erred in the exercise of its power to consider new information under s 473DD of the Act.

4    The appeal should be dismissed for the reasons given below.

THE DELEGATE’S DECISION

5    For the appellant to qualify for the grant of a protection visa it was necessary for the Minister to be satisfied that (among other things) the appellant fulfilled either the criterion in s 36(2)(a) of the Act (Refugee Criterion) or the criterion in s 36(2)(aa) of the Act (Complementary Protection Criterion).

6    Relevantly s 36(2) of the Act provides:

(2)    A criterion for a protection visa is that the applicant for the visa is:

(a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)    a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

…

7    The word “refugee” in s 36(2)(a) is defined in s 5H of the Act, as follows:

5H Meaning of refugee

(1)    For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:

(a)    in a case where the person has a nationality—is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b)    in a case where the person does not have a nationality—is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

….

8    Under the Complementary Protection Criterion, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a such a risk : s 36(2B)(a).

9    The claims made by the appellant in support of his visa application are broadly summarised in the Authority’s reasons as follows:

•    He is a Hazara Shia from Quetta, Pakistan;

•    From 2003 to 2010, he lived in Karachi where he worked as a 3D animator.

•    While he was living in Karachi, he experienced frequent degrading comments about his Shia faith, which turned into direct threats to his life. Members of Sunni extremist group Ahl-e-Sunnat-wal-Jumaat (ASWJ) threatened and followed him. He received written .threats which referred to Shia Muslims as Kaffirs and warned him to leave the area or be killed. As a result, he quit his job in Karachi and returned to live in Quetta.

•    In Quetta, he taught graphic design at a local private business and worked as a graphic designer.

•    As a Shia Hazara living in Quetta he continued to face threats to his life and was forced once again to quit his job.

•    He narrowly escaped a bomb blast at a pool hall which killed many Shia Hazaras in Quetta in January 2013. His cousin was killed in this incident. After this, his family decided to arrange for him to come to Australia.

•    If he returns to Pakistan he may be killed by Sunni extremist groups including Ahl-e-Sunnat-wal-Jumaat (ASWJ) and its militant wing Lashkar-e Jhangvi (LeJ); Lashkar-e-Islam (Lei); or Tehreek-e Taliban Pakistan (TTP).

•    He cannot relocate to another area in Pakistan. He would not be safe in any other location due to the security situation. His Shia Hazara identity would·expose him to a further risk of persecution and discrimination. He is readily identifiable as a Hazara due to his distinctive facial features.

•    He previously tried to relocate to Karachi and was exposed to danger and threats from members of extremist Sunni groups.

•    He lost his Pakistani national identity card, which would have expired in December 2021, during his travel to Australia.

10    The appellant participated in an interview with the delegate during which he elaborated on these claims. He did not have the assistance of a lawyer at that time.

11    In his reasons for decision, the delegate addressed the particular topics that were raised in the course of the interview in relation to his claim that it was neither reasonable nor safe for him to relocate to another area of Pakistan, including the province of Islamabad. In support of that aspect of his claims, the appellant said that he would be easily recognisable as a Hazara and Shia because of his facial appearance, that a mosque in Islamabad was a base for terrorist groups, that he had no relatives or connection with Islamabad and that he made a previous failed attempt to relocate to Karachi. The delegate’s reasons state that the appellant had said that “employment was not a problem, but he could not work if he was not alive”.

12    The delegate concluded that there was a real chance of harm to the appellant by reason of his race and religion in the province of Balochistan, but the real chance of harm did not relate to all areas of Pakistan. The delegate found that it was reasonable for the appellant to relocate to Islamabad.

THE AUTHORITY’S POWERS

13    Section 473CA of the Act required that the delegate’s decision be referred to the Authority as soon as reasonably practicable after the decision was made. Section 473CB required the Secretary of the Department administered by the Minister to give to the Authority certain material (defined as “review material”) including the material that had been provided by the appellant to the delegate.

14    Subject to the provisions of Pt 7AA, s 473DB(1) required the Authority to review the delegate’s decision by considering the review material without accepting or requesting “new information” and without interviewing the appellant. The phrase “new information” means information that was not before the delegate and that the Authority considered to be relevant: s 473DC of the Act.

15    Section 473DD of the Act conditions the circumstances in which the Authority may consider new information. It provides:

473DD Considering new information in exceptional circumstances

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

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

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

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

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

16    The appellant filed an amended notice of appeal on 9 February 2020, withdrawing grounds alleging error on the part of the primary judge in relation the matters raised before his Honour and substituting the following:

1.    That the primary judge erred in failing to find that the Immigration Assessment Authority (‘the IAA’) had dealt with the ‘new information’ provided by the Appellant on 5 May 2017 in a legally incorrect manner that involved it committing jurisdictional error.

Particulars

The IAA did not properly reach a state of satisfaction when exercising its powers under s473DD(a) of the Migration Act 1958, in that it did not properly consider, or failed to give proper, genuine and realistic consideration to whether there existed exceptional circumstances to justify considering the new information.

2.    That the primary judge erred a second time in failing to find that the IAA had dealt with the ‘new information’ provided by the Appellant on 5 May 2017 in a legally incorrect manner that involved it committing jurisdictional error.

Particulars

The IAA did not properly reach a state of satisfaction when exercising its powers under s473DD(b)(ii) of the Migration Act 1958, in that it failed to address whether the personal ‘new information’ provided to the IAA was credible personal information which was not previously known [to the Minister] and had it been known, may have affected the consideration of the applicant’s claims.

17    These grounds concern “new information” said to be contained in a submission provided to the Authority by way of a letter dated 5 May 2017 (the May letter), the content of which will be considered in due course. The appellant submits that the Authority erred in construing or applying s 473DD of the Act in concluding that the new information could not be considered.

18    In Metwally v University of Wollongong [1985] HCA 28; 60 ALR 68 the High Court said (at ALR 71):

It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.

19    There remains a discretion in this Court to allow the introduction of new grounds if it be “expedient in the interests of justice” to do so: Gomez v Minister for Immigration and Multicultural Affairs [2002] FCA 480; 190 ALR 543 at [18] (Hill, O’Loughlin and Tamberlin JJ); VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 at [46] (Kiefel, Weinberg and Stone JJ).

20    It is relevant to consider any explanation that may be advanced as to why the arguments now sought to be raised were not raised at first instance.

21    It is significant that the appellant was legally represented in the proceedings before the primary judge, both in connection with the drafting of his grounds for judicial review and in the presentation of written and oral submissions. In the ordinary course, the absence of an explanation as to why a legally represented litigant did not previously advance an argument may weigh heavily against the grant of leave to introduce the argument at the appeal stage: see for example AAD16 v Minister for Immigration and Border Protection [2018] FCA 1433 at [25] – [27]. That is especially so in the present statutory context, this Court having no original jurisdiction to judicially review the Authority’s decision: Act, s 476 and s 476A. Where a legally represented appellant does not advance an explanation, it may be inferred that counsel in the proceedings below recognised the availability of the argument but decided not to pursue it: ATD18 v Minister for Home Affairs [2020] FCA 593 at [31]. It would not be expedient in the interests of justice to grant leave in those circumstances: VUAX at [46].

22    However, in the unusual circumstances of this case, Counsel for the appellant advanced an explanation for the failure to raise the arguments, and I accept counsel’s explanation as genuine and adequate. The explanation is that the appellant’s legal representative in the proceedings below misapprehended the law resulting in the representative advancing arguments that were unmeritorious (and now abandoned) and failed to identify the availability of arguments now raised on the amended notice of appeal. Ordinarily, an explanation of that kind should be required in affidavit form. However, in the present case, the legal representative concerned is counsel’s instructing solicitor on the appeal and the explanation has been made appropriately through counsel.

23    I am satisfied that the newly advanced grounds are sufficiently arguable to justify the grant of leave in all of the circumstances and now turn to determine the arguments on their substantive merits.

THE NEW INFORMATION

24    Before turning to consider each ground of appeal it is necessary to identify the information regarded by the Authority to be “new” and so subject to the conditions in s 473DD of the Act. The question is important because the information contained in the May letter included some information that was before the delegate and some information that was not. The Authority expressly referred (at [4]) to the May letter. Its reasons deal with three classes of information contained in it.

New country information

25    The Authority stated at [8] that new country information to which the representative referred was general in nature. It said that the appellant had not suggested that its content referred to him personally or to any other person he knew.

26    On appeal, Counsel for the appellant confirmed that no argument was intended to be raised about the Authority’s refusal to consider new country information. Counsel accepted that the new country information did not fulfil the criterion in s 473DD(b)(ii).

Argument about the delegate’s conclusions

27    Counsel focussed principally upon that portion of the May letter in which the appellant’s representative took issue with the delegate’s finding that there existed a Hazara community in Islamabad that would render the appellant assistance and protection.

28    The Authority confirmed that the May letter contained argument concerning the delegate’s decision, including by reference to the country information that was before the delegate. The Authority said (at [4]) that it had regard to that aspect of the representative’s submission. The remainder of the reasons fairly bear that statement out. The Authority dealt squarely and substantively with the representative’s arguments in the following passages:

86.    The applicant claims, and I accept, that he has no family or other connections in Islamabad. As discussed, the information before me suggests that there is a Hazara community in Islamabad. The applicant’s representative submits that the mere presence of a Hazara community does not guarantee that the applicant would be able to secure any form of support from the community. I accept that the applicant may not be able to access financial or other concrete forms of support from the Hazara or Shia communities in Islamabad, but consider that the presence of a Hazara community and a broader Shia community in Islamabad mitigates the risk that the applicant will be socially isolated in Islamabad.

87.    The applicant is a man in his thirties. He has not provided any evidence of any particular vulnerability, for example in the form of any medical condition or disability. I recognise that the support provided by family members or other connections may assist individuals relocating to a new city, however, having regard to the applicant’s range of skills, his demonstrated resourcefulness and adaptability, his age, language skills, his education, his demonstrated ability to live independently from his family, and the information discussed regarding accommodation and employment in Islamabad, I am satisfied that he will be able to find suitable employment and accommodation, and to otherwise establish himself in Islamabad, notwithstanding his lack of family or other connections there.

88.    The applicant indicated in his entry interview that his father supports his family in Quetta. He states that his wife and son reside with his family in Quetta. I consider that the applicant would, on his return to Pakistan, wish to contribute to the support of his wife and child in Quetta and that he would be able to do so. I note that the applicant has demonstrated an ability to live independently from his family for an extended period of time and a willingness to continue to live apart from his family in Australia if he was successful in obtaining a Safe Haven Enterprise Visa.

89.    The information discussed above suggests that terrorist incidents in Islamabad are rare, with only three such incidents, and one person killed as result of terrorist attacks, reported in Islamabad in 2016. As discussed, Islamabad is reported to benefit from the presence of security forces patrolling the streets and controlling access to the city. Operation Zarb-e-Azb is reported to have resulted in a substantial reduction in serious crime throughout Pakistan.

90.    Having regard to the applicant’s individual circumstances as discussed above, and to the security situation in Islamabad, I am satisfied that it is reasonable for the applicant to relocate to Islamabad, where I have found that he would face no real risk of significant harm.

(footnotes omitted)

29    The effect of that reasoning was to confirm that there was a Hazara community living in Islamabad (a fact acknowledged by the appellant in the proceedings below) and that, in any event, the appellant’s personal circumstances were such that it was reasonable for him to relocate notwithstanding the absence of familial support or other connections among the Hazara community there. The appellant may disagree with that conclusion, and may even assert jurisdictional error in relation to it, but the grounds of appeal are limited to the question of whether the Authority erred in refusing to consider new information contained in the May letter. To the extent that the grounds seek to impugn the Authority’s decision in relation to that aspect of the May letter by reference to s 473DD of the Act, the grounds must fail. The Authority proceeded on the basis that the representative’s arguments on this discrete topic were not new. It did not refuse to consider, whether because of s 473DD of the Act or otherwise.

Personal circumstances relevant to relocation

30    As I have identified earlier in these reasons, some aspects of the appellant’s personal circumstances said to impede his ability to relocate had been advanced in his visa application and in the course of his interview with the delegate. All of that information was among the material that had been referred to the Authority under s 473CB of the Act. It was not “new information” and the Authority did not treat it as such.

31    The Authority identified (at [6]) those matters that had been raised by the appellant before the delegate in relation to the question of his relocation, as follows:

The applicant addressed the issue of potential relocation to other parts of Pakistan in his SHEV application. He referred to his previous experience and his fears of persecution, discrimination and a general lack of security in relocating within Pakistan. During the SHEV interview the delegate discussed with the applicant a range of matters relating to relocation including the situation faced by Shia Muslims in Islamabad, the security situation in Islamabad, and what he described as the practicalities of relocation to Islamabad. The applicant’s lack of any family or other connections in Islamabad, his language skills and work experience, his ability to secure employment in Islamabad, and his past experiences in Karachi were discussed.

32    That information was not new. It was in fact considered at some length by the Authority (at [21] – [40] and [83] – [90]), including in the passage extracted at [28] above. To the extent that the appellant’s arguments assumed that this information was the subject of any of the Authority’s conclusions under s 473DD of the Act, the submissions are rejected.

33    The Authority extricated four matters raised in the May letter that had not previously been raised before the delegate as follows (at [9]):

The submission includes the new claims related to the issue of relocation that the applicant’s level of English and Urdu is elementary; Islamabad is the administrative capital of Pakistan and as such the work available there would require formal qualifications and experience; the applicant’s past experience of relocating to Karachi, including the emotional trauma he suffered as a result of that experience, reduces his ability to successfully relocate to another place in Pakistan; and the applicant is the main source of support for his family.

34    Those are the only classes of information identified by the Authority to be subject to the application of s 473DD of the Act.

35    It remains to consider whether the Authority erred in applying the conditions in s 473DD to any one or more of them in either manner alleged in the amended grounds of appeal. It is convenient to deal with the grounds in reverse order.

GROUND 2

36    The second ground of appeal asserts that the Authority failed to genuinely consider whether the information fulfilled the condition in s 473DD(b)(ii). It was submitted that the Authority expressed a bare conclusion that the condition was not satisfied without actively engaging with the issues it had to determine, namely whether the information was personal, credible information that was not previously known and that, had it been known, whether it may have affected the consideration of the appellant’s claims. The Authority had “swept away” the issue of the new information and simply asserted that it was not satisfied as to the criteria in s 473DD(b)(ii), without explaining its conclusion, so it was submitted.

37    It is true that the Authority expressed its conclusion that s 473DD(b)(ii) was not satisfied in a single sentence (at [15]). However, that conclusion is preceded by a course of reasoning from [5] – [14].

38    The Authority identified (at [5]) that the May letter included “some new claims” relating to the question of relocation. It noted a submission of the appellant’s representative to the effect that whilst the information predated the delegate’s decision “it was not and could not have been provided to the delegate before he made his decision because the appellant was previously unrepresented and did not make a formal submission which may have included this new information due to his lack of understanding of the law relating to the refugee status determination process”.

39    After identifying the information that had been raised before the delegate (at [6]), the Authority said that the delegate had explained to the appellant the nature of the review application process, including the fact that the appellant may not have the opportunity to provide additional information should his visa application be refused. The Authority continued (at [7]):

I am satisfied that the applicant was aware of the opportunity for him to provide further information to the delegate in relation to any aspect of his protection visa application, and understood the importance of providing any further information to the delegate before he made his decision. I note that not all applicants for protection visas are represented. The applicant is a man in his mid-30s who has received 12 years of education. His substantial experience as a user of 3-D animation software and his evidence that he uses social media suggest to me that he has good basic IT skills. He indicated in his SHEV application that he speaks reads and writes English. In the arrival interview conducted shortly after his arrival in Australia, he rated his English language ability as good. I note that he participated in the entry interview largely in English, with limited assistance from the interpreter. I consider that the applicant was capable of finding and providing information in support of his application, and was on notice of, and understood; the potential relevance of his capacity to relocate to other parts of Pakistan when making his application. I note that the material before me includes a range of sources of information about matters relevant to issue of internal relocation.

40    The Authority then addressed each of the four aspects of new information it had identified at ([9]).

41    In relation to the claim that the appellant’s level of English and Urdu was rudimentary, the Authority said (at [10]):

The applicant indicated in his SHEV application that he speaks reads and writes English and Urdu. He indicated during his entry interview that he spoke Urdu and English, as well as Hazaragi. As discussed, he participated in the entry interview largely in English and with limited assistance from the interpreter, and in his arrival interview described his English language ability at that time as ‘good’. The applicant claims that he attended Pakistani government educational institutions for 12 years. I note that English and Urdu are official languages of Pakistan. The timing of the provision of the information that his English and Urdu language skills are of an elementary level, and its apparent inconsistency with the other evidence regarding the applicant’s language abilities leads me to question the accuracy of this information.

42    In relation to the claim that it would be difficult to find work in Islamabad without formal qualifications, the Authority said (at [11]) that the claim was not supported by independent information. The Authority noted that the appellant’s ability to secure employment in Islamabad had been raised in the course of his interview with the delegate and that he had not raised an issue about the need for formal qualifications at that time.

43    As to the appellant’s claim to be the main source of support for his family, the Authority noted (at [12]) that the appellant had made previous claims to the effect that no family members were dependent on him, that his wife and child lived with his parents in Quetta and that his father supported his family members there.

44    As to the appellant’s claims about his prior attempt to relocate to Karachi, the Authority noted (at [13]) that his experience of relocation had been the subject of discussion at his interview with the delegate and that the appellant had told the delegate that relocation was very difficult:

… but did not claim that his ability to relocate to another location in Pakistan was reduced by his experiences in Karachi, including any emotional trauma. No independent medical evidence was provided in support of the claim that the applicant suffered emotional trauma as a result of his experience of relocating to Karachi.

45    Later in its reasons, the Authority gave lengthy consideration to the appellant’s asserted difficulties in relocating to Karachi (at [29] – [40]). It is plain from that aspect of the reasons that the “new information” forming the subject of the Authority’s reasoning under s 473DD was limited to the emotional trauma the appellant said had resulted from that prior relocation attempt.

46    The Authority’s conclusions on the application of s 473DD to the new information were expressed was follows:

14.    As discussed, the applicant’s representative submits that the applicant did not make submissions due to his lack of understanding of the protection Visa application process. The applicant has not provided any other explanation as to why the information regarding his language abilities, the employment situation in Islamabad, his status as the main source of support for his family, and his reduced capacity to relocate due to his experience in Karachi, could not have been provided at an earlier point. As also discussed, the delegate advised the applicant at the end of the SHEV interview that any information the applicant provided before he made a decision would be considered. No additional information was received by the delegate before he made his decision. I do not accept that the applicant did not provide information about these matters at an earlier point due to any lack of understanding of the protection visa application process.

15.    The applicant has not satisfied me as to either of the matters in s.473DD(b)(i) or (ii). Having regard to all of the circumstances, I am also not satisfied that there are exceptional circumstances to justify considering the new information, including new claims, related to the issue of internal relocation.

47    The submission that the Authority failed to engage intellectually with the statutory condition in s 473DD(b)(ii) is rejected. The Authority’s reasoning evidences that it did engage with the question of whether the information was credible personal information. The appellant’s written submissions did not grapple at all with the passages of the Authority’s reasons to which I have referred. Counsel’s oral submissions focussed principally on an alleged failure by the Authority to engage with the appellant’s submissions about the existence of a supportive Hazara community in Islamabad. As I have said, information about that subject matter was not perceived by the Authority to be new.

48    Counsel otherwise submitted that the question of whether the appellant had been afforded the opportunity to provide the information to the delegate was irrelevant. That submission must also be rejected. The appellant himself had asserted a reason for not providing the information at an earlier time. The Authority was entitled to test that explanation. It was open to the Authority to reject it. The question of whether the appellant had been provided a fair opportunity to disclose the information at an earlier time was clearly capable of bearing on the alternate criteria in s 473DD(b)(i) and (ii). It was also relevant to the criteria in s 473DD(a).

49    The Authority engaged directly with the contention that the appellant’s unrepresented status at the time of the delegate’s decision and his lack of proficiency in English caused him to misunderstand the review process. It rejected the explanation in terms that do not disclose error. The Authority expressly noted that no other explanation had been provided.

50    In addition, the Authority identified those areas where it considered the new information contradicted information the appellant had previously provided.

51    The Authority’s conclusions at [14] and [15] are to be understood as having been informed by all that had preceded them. Read together, the reasons disclose an intelligible basis for the conclusion that the criterion in s 473DD(b)(ii) was not satisfied. The Authority did not consider the information to be credible, both because there was no acceptable explanation for it having been only recently raised, and because it contradicted information the appellant had provided previously.

GROUND 1

52    There were two aspects to the appellant’s argument in support of this ground.

53    The first was that the Authority had not engaged with the requirements of the condition in s 473DD(a) but had simply stated a bare conclusion that the condition was not satisfied.

54    That argument must be rejected for the same reasons given in relation to the second ground. The Tribunal clearly engaged with the contention that the appellant did not understand the importance of providing complete information to the delegate both because he was unrepresented and because he lacked proficiency in English. Those were the circumstances that the appellant himself had advanced as to why the new information should be considered. In addition to rejecting the factual basis for the appellant’s contention, the Tribunal concluded that the new information contradicted information that had previously been provided. These conclusions were relevant to an assessment as to whether there were exceptional circumstances justifying consideration of the information at the deliberative stage. They should be understood as informing and explaining the Tribunal’s conclusions at [14] and [15] of its reasons.

55    The second argument was that the Tribunal’s failure to consider whether the information fulfilled the criterion in s 473DD(b)(ii) had the consequence that it had failed to take into account the facts bearing on that criterion when asking whether the criterion in s 473DD(a) was satisfied.

56    As the Full Court said in Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111(at [102]), the cumulative requirements of subs (a) and (b):

… overlap to some extent, with the effect that the IAA’s consideration of either or both of the limbs in para (b) may inform the IAA’s satisfaction under para (a) as to whether there are exceptional circumstances to justify considering the new information.

57    See also Minister for Immigration and Border Protection v CQW17 (2018) 264 FCR 249 at [69] and AQU17 v Minister for Immigration and Border Protection (2018) 162 ALD 442 at [14] (McKerracher, Murphy and Davies JJ).

58    It follows that an error in the Authority’s analysis of whether the condition in s 473DD(b)(ii) is met may infect the Authority’s reasoning under s 473DD(a) and so constitute material error in the outcome of the Authority’s decision: ABL18 v Minister for Home Affairs [2020] FCA 536.

59    However, in the present case, there was no error in the Authority’s conclusion under s 473DD(b) affecting its conclusion under subs (a). The Authority considered and rejected the circumstances said by the appellant to constitute exceptional circumstances for considering the information. In respect of that limited class of information to which s 473DD applied, the appellant has not pointed on this appeal to any factual circumstance that was capable of constituting exceptional circumstances for considering the material, other than that which was considered and rejected by the Tribunal.

60    The appeal should be dismissed with costs.

Associate:

Dated:    22 May 2020