Federal Court of Australia

FPN17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 315

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

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

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

REASONS FOR JUDGMENT

NICHOLAS J:

1    This is an appeal from a judgment of the Federal Circuit Court (“FCC”) made on 29 April 2020 dismissing the appellant’s application for judicial review of a decision of the Immigration Assessment Authority (“the Authority”) made on 14 November 2017. By its decision, the Authority affirmed a decision of a delegate of the first respondent (“the Minister”) not to grant the appellant a Safe Haven Enterprise Visa (Subclass 790) (“SHEV”).

The Appeal

2    The appellant’s notice of appeal contains two grounds of appeal.

3    The first ground of appeal asserts that the FCC erred in not finding that the Authority fell into jurisdictional error by acting unreasonably in three respects:

(a)    the Authority was unreasonable in its determination that there were not “exceptional circumstances” within the meaning of s 473DD(a) of the Migration Act 1958 (Cth) (“the Act”) for it to consider the new country information provided in the appellant’s written submissions to the Authority;

(b)    the Authority was unreasonable in its determination that there were not “exceptional circumstances” within the meaning of s 473DD(a) of the Act for it to consider the new claims made in the appellant’s statutory declaration to the Authority.

(c)    the Authority was unreasonable in its determination that the new claims were not “credible personal information” within the meaning of s 473DD(b)(ii) of the Act.

4    The second ground of appeal asserts that the FCC erred in not finding that the Authority fell into jurisdictional error by failing to consider a relevant consideration. The relevant consideration that the Authority is said to have failed to consider was either the new country information or the new claims. In written submissions to this Court, and in the hearing before the FCC, the appellant accepted (correctly in my view) that Ground 2 must fail unless the Authority is found to have acted unreasonably in its determination under s 473DD of the Act with respect to the new country information or the new claims. In his submissions in reply the appellant suggested that the appellant wished to “resile from … [the] concession that ground 2 overlaps precisely with ground 1” and instead submitted that it may be possible for ground 2 to be made out independently of ground 1 if the Authority erred in “what was required for exceptional circumstances”. I do not think it is open to the appellant to approach the appeal in that way. His grounds of appeal do not assert that the Authority misunderstood the meaning or effect of s 473DD.

The Statutory Context

5    Section 473DD of the Act 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.

6    It was accepted by the parties that the reference to “not previously known” contained in s 473DD(b)(ii) refers to personal information not previously known to the Minister or the Minister’s delegate see: Plaintiff M174/2016 v Minister for Immigration and Border Protection and Anor (2018) 264 CLR 217, 230-231 (per Gageler, Keane and Nettle JJ).

7    The appellant accepts that for ground 1 of his appeal to succeed he must show that the Authority failed to act reasonably in the sense explained in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332. The Authority will have acted unreasonably if it acted irrationally or illogically including by making findings that were illogical in the sense that they were unsupported by any probative evidence. It will also have acted unreasonably if it acted arbitrarily or capriciously or without any intelligible justification.

8    The appellant relies, in particular, upon the joint judgment of Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (“SZMDS”) especially at [130]. Their Honours said at [130]-[131]:

[130]    In the context of the Tribunal’s decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.

[131]    What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

The Authority’s Decision

The New Country Information

9    The Authority referred to the written submissions that it received from the appellant and concluded that it was not satisfied that there were exceptional circumstances to justify considering the new country information contained in the submissions. The Authority noted that the appellant had not made submissions about why the new country information satisfied the requirements of s 473DD. The Authority accepted that the new country information post-dated the delegate’s decision, and therefore satisfied the requirements in s 473DD(b)(i). However, it did not accept that there were exceptional circumstances to justify considering the new country information. The Authority gave several reasons for that conclusion, including that:

(a)    the recency of the information alone did not constitute exceptional circumstances to justify considering the new country information;

(b)    the new country information was consistent with the country information that was already before the Authority; and

(c)    the “concerns” raised in the new country information were not in contention before the Authority.

10    The Authority said at [5]-[7]:

[5]    The applicant’s submission seeks to rely on new country information that was not before the delegate. No submissions were made in terms of the application of s.473DD in relation to the new country information. The information includes a 22 February 2017 Amnesty Report, a United States Department of State report on Human Rights in Sri Lanka dated 3 March 2017, a Human Rights Watch report from 20 February 2017, and UN News article from 3 March 2017. Each of these reports postdate the decision, and I accept this new information was not, and could not have been, provided to the Minister before the delegate made their decision.

[6]    In terms of the new country information that postdates the decision, I am not satisfied that its recency alone constitutes an exceptional circumstance to justify considering the new information. There is adequate country information before me already about the issues raised in the submission, and the new information is consistent with that advice. I also note the concerns raised in the information quoted and consider those matters are not in contention. Weighing everything before me, I am not satisfied there are exceptional circumstances to justify consideration of any of the new country information, and I have not considered that new information pursuant to s.473DD of the Act.

[7]    In making this decision I have had regard to new information, specifically updated country advice from the Department of Foreign Affairs and Trade (DFAT) regarding Tamils, Tamils from the east of Sri Lanka, and returnees (asylum seekers) and to Sri Lanka, published on 24 January 2017. This report was published shortly before the delegate’s decision. The delegate has relied extensively on the earlier 18 December 2015 DFAT country report, which the 2017 report has updated and replaced. The updated information is relevant to the risks posed to the applicant on return to the country, and updates the security situation for people with the applicant’s profile. I am satisfied there are exceptional circumstances to justify considering this new information.

11    The new country information referred to in the appellant’s written submissions included:

    a 2016/2017 report by Amnesty International about “torture and other ill-treatment in police custody, and impunity for enforced disappearance and other violations” and noting the finding by the UN Special Rapporteur on Torture that “that severe forms of torture by police continued, although probably at lower levels than during the armed conflict, and that impunity persisted for both old and new cases”.

    the United States Department of State, Country Report on Human Rights Practices – Sri Lanka, dated 3 March 2017, which said in part:

The most significant human rights problems were incidents of arbitrary arrest, lengthy detention ... Other human rights problems included abuse of power and reports of torture by security services. ... Impunity for crimes committed during and following the armed conflict continued, particularly in cases of killings, torture, sexual violence, corruption, and other human rights abuses.

    a Human Rights Watch report published on 20 February 2017, which stated in part:

... The Sri Lankan government has failed to repeal the abusive Prevention of Terrorism Act or take serious measures to reduce torture in custody. ...

A recent report from the UN Special Rapporteur on torture, Juan Mendez, highlighted the ongoing "culture of torture" in the country. A 2015 report by Human Rights Watch also found that Sri Lankans routinely face torture and other ill-treatment by the police. ...

The Special Rapporteur on torture, following a May 2016 visit to Sri Lanka, found that torture to produce confessions, including beatings, sexual violence, extreme stress positions and asphyxiation, was being committed in police stations, military facilities and detention centers throughout the country.

    a report by the UN News Service, dated 3 March 2017, for the proposition that “[r]eputable country information shows that serious human rights violations continue to occur in Sri Lanka, including the Sri Lankan authorities use of torture with impunity”.

The New Claims

12    In his entry interview the appellant was asked why he left Sri Lanka. His response was as follows:

Karuna group came and took my boat, they beat me. Whenever they ask for my boat I would give it to them. They blame me that I am helping LTTE. They came and looking for me at my house, but I was not there, I was fishing. That's why my family told me it is not safe for me and to go to different country.

13    He was also asked when the Karuna group came looking for him. He said this occurred on 12 June 2010. In his statutory declaration dated 7 August 2016 the appellant stated:

In 2003-2004 the Karuna group, a splinter group of the LTTE made me stay with my boat and help them. I was a fisherman and forced to give them the boat 3 times but I had to drive the boat and stay with them for 2-3 days. When the fish were not in season I could not fish so I helped my Brother-in-law at masonry work. From 2004-2005 the Karuna group left the LTTE and collaborated with CID to get names of people that associated with / helped LTTE. From 2006-2009 nothing major happened as I was fishing and the Civil war was on. From 2010 the Karuna group became active again; one day 4 people from Karuna group entered my house when I was not home. They asked my wife about me and said they were collecting information for CID about the LTTE in regard to boats. They told her to tell her husband to meet the Army base commander at Kaluwanchi Kudi Army Base. Next day I came back from fishing and went home and my wife told me what happened. I got scared when I heard this. Told wife I will stay on beach during day to hide and fishing at night. My wife felt scared for my life and said it was not safe to live at home; She suggested to go to Malaysia and maybe get job. We then planned to go to Colombo. My wife and I left home at night time by bus to Colombo August 2010 and took a bus from Colombo to Ratmalana where mother’s sister lives in flat and intended to stay there. …

14    In the same paragraph the appellant went on to explain that his wife had to return to stay with children. He arranged to get a passport and visa to travel to Malaysia where he later worked.

15    In the Delegate’s reasons for decision dated 16 February 2017, the Delegate concluded that the appellant was forced to assist the LTTE at a low level and that, on at least one occasion, the Karuna group, CID, or the police attended the appellant’s house in search of him. The Delegate concluded that the appellant was never harmed, questioned or detained for suspicion of being affiliated with the LTTE.

16    The Delegate ultimately concluded that the appellant did not have an adverse profile that separated the appellant from the general population of Tamil fisherman and that he was satisfied that the appellant did not hold a well-founded fear of persecution for any reason.

17    It was only after the Delegate’s decision that the appellant first asserted in a statutory declaration of 8 March 2017 that he received physical and military training at an LTTE camp after being forcibly recruited by the LTTE in approximately April 1993. In relation to this new information the appellant stated in the same statutory declaration:

The information contained below has not been disclosed to the Department of Immigration and Border Protection in my entry interview, in my previous statement of claims or at my visa interview because of my concerns about the ramifications of disclosing it. During my boat journey to Australia and my initial time here, I was warned by other Tamil people not to mention that I was a member of the Liberation Tigers of Tamil Eelam (“LTTE”) because the Australian authorities would view me as a security risk to the Australian community. I was fearful that I would be unable to remain in Australia and would be detained by the Australian authorities and immediately deported back to Sri Lanka. I was also reluctant to disclose this information out of fear that it would get back to Sri Lanka cause problems for my family.

18    The statutory declaration of 8 March 2017 included the following new claims relating to the appellant’s role within the LTTE:

    the appellant was forcibly recruited by the LTTE in April 1993;

    the appellant spent three months at an LTTE camp where he received military training and worked as a labourer;

    the appellant was then deployed as a fighter, and fought the Sri Lankan Army on one occasion after which he performed camp duties;

    the appellant left the camp in January 1994 and then worked as a fisherman for the LTTE until approximately May 1996;

    in March 1996 the appellant had a problem with the Tamil Eelam Liberation Organisation and the Special Task Force who visited his family home looking for him as they had received information the appellant was an LTTE member. The appellant later fled to Colombo and remained in hiding while making arrangements to depart overseas; and

    the appellant then travelled to Saudi Arabia where he lived for 7 years before returning briefly to Sri Lanka and then moving to Qatar. It was after he left Qatar in June 2005 that he then assisted the LTTE with his boat until 2006.

These claims differed substantially from the claims the appellant had previously made.

19    The Authority addressed the application of s 473DD to the new claims in paragraphs 8 to 15 of its decision. The Authority found that, because the new claims related to matters that pre-dated the delegate’s decision by more than a decade, the new claims constituted information that could have been provided to the Delegate, and therefore did not satisfy the requirement in s 473DD(b)(i).

20    The Authority also found that the new claims were not “credible personal information”, and therefore did not satisfy the requirement in s 473DD(b)(ii). The Authority gave several reasons for this conclusion, including that:

(a)    the new claims represented a significant departure from the appellant’s previous claims, made during the arrival interview, SHEV interview and in his visa application;

(b)    during the SHEV interview, the delegate made clear that the appellant’s personal information would not be provided to Sri Lankan authorities, emphasised the importance of raising complete and accurate protection claims, and cautioned that, if the appellant did not provide all relevant information about his claims, he may not have another chance to provide information to support his claims; and

(c)    during the SHEV interview, the appellant did not depart from his claims contained in his visa application, and “confirmed in no uncertain terms that he had never received military training, and had not been a member or supporter of the LTTE”.

21    The Authority also found that there were not exceptional circumstances to permit it to consider the new claims. The Authority therefore found that the requirements contained in s 473DD of the Act were not satisfied.

22    The Authority went on to consider the appellant’s other claims which it found he had consistently made over the course of his earlier interviews. The Authority summarised these claims in paragraph 16 of its decision. Relevantly, the Authority accepted that, in the period between 2003 to 2004, the appellant was forced to provide transportation and fish to the Karuna Group on a regular basis and that after the Karuna Group approached the appellant’s home in 2010 the appellant decided to leave Sri Lanka.

23    The Authority noted that, “[w]hile the security situation for Tamils has improved, the US Department of State, as well as other sources, suggests that Tamils maintain there is systematic discrimination … and surveillance and harassment”. The Authority also accepted that “for those with certain profiles, the risks of human rights violations for those who are active in the Tamil diaspora or are linked to Tamil separatist activities must continue to be seen as credible”. However, the Authority found that the appellant had no such profile, in that his past links to the LTTE were “involuntary and low level”. The Authority relevantly found at [33]:

[W]hatever limited profile the [appellant] had with the Karuna Group (or the CID, the SLA, the Sri Lankan authorities or any other security force) was unremarkable, is no longer extant and I am satisfied he would no longer be a person of interest to any of the Sri Lankan authorities due to his past low level material support for the LTTE.

24    The Authority went on to find that the appellant would not face a real chance of harm on the basis of his Tamil ethnicity or his status as an adult Tamil male from the east of the country. Accordingly, the Authority found that the appellant did not have a well-founded fear of persecution for reasons of “his ethnicity, or as a Tamil male from the east of the country, any past actual or imputed opinion, profile or links to the LTTE, or any other actual or imputed political opinion or profile”.

The Federal Circuit Court’s Decision

25    On 19 December 2017, the appellant applied to the FCC for judicial review of the Authority’s decision. On 29 April 2020, the FCC dismissed the appellant’s application. The FCC held that it was not unreasonable for the Authority to find: that there were not exceptional circumstances to justify considering the new country information; that the new claims were not credible personal information; and that there were not exceptional circumstances to justify considering the new claims. In the result, the FCC rejected the appellant’s first ground of review and held that the second ground of review was not made out as it was dependent on the success of ground 1.

26    I turn now to the appellant’s grounds of appeal.

Ground 1

New Country Information

The Appellant’s Submissions

27    The appellant submitted that the Authority’s decision to not consider the new country information was unreasonable because the relevant material “gave a weighty foundation to complaints of abuses of human rights including excessive use of force in policing, abuses of power and torture, torture in police stations and detention centers throughout the country and torture with impunity”. The appellant went on to submit that there was a “tension” between the new country information referred to in the appellant’s written submissions to the Authority and the other country information upon which the Authority relied. These were, it was submitted, “seriously at odds” with each other. In oral argument, counsel for the appellant submitted that the country information considered by the Authority was “inconsistent” with the new country information supplied by the appellant. Counsel further submitted that given the gravity of the new information it was unreasonable for the Authority not to have considered it.

28    The appellant’s written submission to the Authority included a number of extracts from reports and also referred to a UN News Service article dated 3 March 2017 accessible by a hyperlink included in a footnote. Some of these extracts were discussed above. The appellant’s written submissions to the Authority included, by way of conclusion, the following paragraphs and related footnote:

Sri Lanka has a long history of persecuting those people it suspects of supporting the LTTE or its proclaimed aims. Reputable country information shows that serious human rights violations continue to occur in Sri Lanka, including the Sri Lankan authorities use of torture with impunity.7 It cannot be doubted that the ill-treatment of Tamils with a perceived association to the LTTE is widespread and continuing. In light of this, combined with the fact that he is a member of the minority Tamil population who fled the country in the years following the civil war, we submit that the possibility the Applicant will experience serious harm within the reasonably foreseeable future cannot be dismissed as remote or insubstantial and, in these circumstances, the Applicant’s fear of persecution should be accepted as well-founded.

…

7.    See, for example: UN News Service, UN urges Sri Lanka not to miss chance to advance justice, reconciliation, 3 March 2017 <http://www.refworld.org/country,,,,LKA,,58b98ea54,0.html>.

29    The appellant submitted that the FCC erred by not finding that the Authority fell into jurisdictional error in failing to be satisfied that the requirements of s 473DD were met with respect to the new country information.

The First Respondent’s Submissions

30    The first respondent submitted that in assessing whether a decision is unreasonable it is not sufficient for the Court to be satisfied that reasonable minds may differ and that illogicality, irrationality or unreasonableness cannot arise simply because one conclusion has been preferred to another possible conclusion: SZMDS at [131] per Crennan and Bell JJ.

31    The first respondent submitted that the new country information was consistent with the country information considered by the Authority. The respondent further submitted that many of the risks referred to in the new country information would only apply to the appellant in the event that the appellant was detained on arrival in Sri Lanka. Noting that the Authority found that the appellant had departed Sri Lanka lawfully, and did not consider the appellant to have strong links to the LTTE, the first respondent submitted that it was open to the Authority to hold that no special circumstances existed to consider the new country information and that neither the Authority’s reasoning nor its ultimate decision was unreasonable.

Consideration

32    In SZMDS, Crennan and Bell JJ said at [129]-[131]:

[129]    … accepting that an allegation of “illogicality” or “irrationality” must mean something other than emphatic disagreement as explained above by reference to Eshetu and Applicant S20, and also accepting that a demonstration of bona fides will not save an illogical or irrational decision or finding on a jurisdictional fact as stated in SGLB, how do “illogicality” and “irrationality” fit with the clearly related body of law concerned with error, particularly jurisdictional error, in respect of reasoning which is “clearly unjust”, “arbitrary”, “capricious” or “Wednesbury unreasonable”?

[130]    In the context of the Tribunal’s decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.

[131]    What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

(footnotes omitted)

33    Crennan and Bell JJ also said at [135]:

On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.

34    In Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 (Allsop CJ, Griffiths and Wigney JJ), Allsop CJ explained at [11] that when reviewing a decision for legal unreasonableness:

… [T]he decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. …

35    I do not accept the appellant’s submission that the new information was inconsistent with the country information considered by the Authority. In general, the new information fell into two categories: specific information surrounding the circumstances facing LTTE fighters and sympathisers, and general statements regarding human rights abuses in Sri Lanka. In my view, neither category of information is inconsistent with the country information to which the Authority had regard. While the new information may be viewed as providing additional examples of human rights abuses, much of this information, especially in the latter category, is expressed at a high level of generality.

36    In particular, the country information the Authority considered expressly addressed the risk of human rights violations against those viewed as LTTE fighters and sympathisers. For example, as discussed above, the Authority accepted “… for those with certain profiles, the risks of human rights violations for those who are active in the Tamil diaspora or are linked to Tamil separatist activities must continue to be seen as credible”. That finding is not inconsistent with the new country information the appellant sought to rely on.

37    The appellant submitted that the interpretation of s 437DD should be guided by the broader statutory context in which it appears, including ss 5H, 5J, 36(2)(a) and 36(2)(aa) of the Act. The appellant submitted that within this context, the “gravity of the obligation upon the Authority to make a determination about whether Australia’s protection obligations w[ere] engaged … informs the calculation of whether the Authority has been reasonable or not”.

38    The first respondent submitted that the relevant context was the role of s 437DD within the “fast track” review scheme with the purpose of the scheme being that the Authority will make decisions on the basis of the same information that was before the delegate, unless the requirements of (relevantly) s 437DD are met. The Minister’s submission accords with previous decisions of this Court. For example, in BVZ16 v Minister for Immigration and Border Protection and Anor (2017) 254 FCR 221 White J said at [42]:

[T]he task of the IAA is, prima facie, to review the decision on the papers and without accepting or requesting new information and without interviewing the applicant (s 473DB) and, while the IAA has a discretion to “get” new information, it may consider it only in the limited circumstances specified in s 473DD. Plainly, applicants for a protection visa are expected to present all their claims and all available evidence to the Minister in relation to the decision under s 65.

His Honour went on to state at [43]:

[E]xceptional circumstances will be those which are out of the ordinary course and which will justify the new information being considered even though it had not been provided to the Minister at the time of the s 65 decision. …

See also AGK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 668 at [31] per Anderson J.

39    In circumstances where the new information was not inconsistent with, or did not materially add to, the country information considered by the Authority, the Authority’s determination that the requirements of s 473DD were not met cannot be regarded as irrational, illogical or otherwise unreasonable in the relevant sense.

40    I also do not accept the appellant’s submission that the Authority’s consideration of the 2017 DFAT Report supports the appellant’s case. The Authority’s reasons clearly explain the different approaches to the two sets of new information.

New Claims

41    There are three grounds of appeal relating to the new claims. The first (ground 1(c)) is that the Authority was unreasonable in finding that the new claims were not credible personal information under s 473DD(b)(ii) and the second (ground 1(b)) is that the Authority was unreasonable in finding that exceptional circumstances to consider the information did not exist under s 473DD(a). If the new claims were not credible personal information then the Authority could not have had regard to them under s 437DD regardless of whether the Authority was satisfied that exceptional circumstances existed. The third ground of appeal (ground 2 - failure to have regard to the new claims) does not arise unless both the first and second grounds are successful. Success on ground 1(b) cannot lead to any relief unless the appellant is also successful on ground 1(c).

42    The first respondent in written submissions and in oral argument conceded that if error is established in relation to the finding that the new claims were not credible personal information then jurisdictional error will be established.

43    The appellant did not submit that the Authority applied an incorrect legal test in assessing whether the information was credible personal information. Rather, the appellant submitted that the decision by the Authority that the new information was not credible personal information was legally unreasonable.

44    The key issue is therefore whether the Authority’s finding that the claims were not credible personal information was legally unreasonable. If so, the FCC erred in finding that the Authority’s decision did not fall into jurisdictional error.

45    The expression “credible personal information” as used in s 473DD(b)(ii) of the Act was considered by Bromberg J in CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 (“CSR16”). His Honour said at [41]-[43]:

[41]    In my view all that the “credible” element of the s 473DD(b)(ii) criteria requires is the Authority’s satisfaction that the “new information” is information which is open to be or capable of being accepted by the Authority as truthful (or accurate, or genuine). It is only at the deliberative stage of its review that the Authority will be required to determine whether or not the “new information” is true. The s 473DD(b)(ii) criteria is concerned with an earlier or anterior stage of the review directed at whether “new information” should be received by the Authority so that it may be considered at the deliberative stage.

[42]    The criteria is a filtering mechanism designed to separate information worthy of consideration at the deliberative stage from that which is not. In that context, the word “credible” is used in relation to information, not in the sense that the information is believed, but in the sense that the information is capable of being believed. It is only information that the Authority is satisfied is “evidently not credible” (VEAL v Minister for Immigration and Multicultural Affairs (2005) 225 CLR 88 at [17] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ) that fails to meet the credibility requirement imposed by the s 473DD(b)(ii) criteria.

[43]    The Authority determined that the “new information” that the appellants sought to have it consider did not meet the s 473DD(b)(ii) criteria by imposing a higher standard of satisfaction than the criteria requires. The Authority required satisfaction that the “new information” was true when all that the s 473DD(b)(ii) criteria requires is the Authority’s satisfaction that the new information is capable of being believed at the deliberative stage of the Authority’s review. In so doing the Authority misconstrued s 473DD(b)(ii) and misconceived what the exercise of its statutory power entailed. The Authority thereby fell into jurisdictional error: Graham v Minister for Immigration and Border Protection; Te Puia v Minister for Immigration and Border Protection [2017] HCA 33 at [68] (Kiefel CJ, Bell, Gageler, Keane, Nettle, and Gordon JJ); Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at [82] (Gaudron J) and [196] (Gummow and Hayne JJ).

46    The appellant in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020] FCAFC 159 challenged the correctness of Bromberg J’s decision in CSR16. The Full Court, by majority (Mortimer and Jackson JJ), held at [62] that CSR16 was correctly decided and that Bromberg J’s construction of s 473DD(b)(ii) was correct.

47    Mortimer and Jackson JJ referred to what the plurality in Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 (“M174”) described at [22] as the “primary rule” applicable to a review under Pt 7AA which is that, subject to specific exceptions contained in ss 473DC, 473DD and 473DE, the Authority is to review a fast track reviewable decision referred to it under s 473CA by considering the review material provided to the Authority under s 473CB without accepting or requesting new information and without interviewing the applicant.

48    Mortimer and Jackson JJ’s consideration of M174 continued at [67]-[70]:

[67]    Having explained at [29] that the “exceptional circumstances” “precondition set out in s 473DD(a) must always be met”, the plurality then said of s 473DD(b) (at [34]):

    Accordingly, all that the Authority needs to be satisfied of in order to meet the precondition to its consideration of new information given, or proposed to be given, by the referred applicant set out in s 473DD(b)(ii) is that: (1) the information is credible information about an identified individual, or an individual who is reasonably identifiable; (2) the information was not previously known by either the Minister or the referred applicant; and (3) had the information been known by either the Minister or the referred applicant, the information may have affected the consideration of the referred applicant’s claims.

    (Emphasis added.)

[68]    Two matters should be noted about this passage, and the proper approach described by the plurality. First, what is contained in s 473DD is described as a “precondition”. That is, although it is part of the review function of the Authority, the exercise of power under s 473DD comes before the Authority can “consider new information that is given to it” by a referred applicant. It is thus part of the Authority’s preliminary decision-making about what is the complete scope of the material it will be considering on its review for the purpose of its statutory task, which is, as the plurality in Plaintiff M174 outlined at [17],

    to consider the application for a protection visa afresh and to determine for itself whether or not it is satisfied that the criteria for the grant of the visa have been met.

[69]    As the plurality observed at [32], the precondition in s 473DD(b)(i) needs “[n]o explication”. It is a matter of objective fact, and straightforward. It would be curious if the precondition in s 473DD(b)(ii) were not also treated as involving a relatively straightforward assessment, being, as we have explained, a preliminary step the Authority must take before settling on the scope of the material which is to be before it on its review, so that it can consider afresh the protection visa application, and make its own decision.

[70]    Thus, the parameters for the Authority’s review task are set by the “primary rule” in s 473DB, read with the additional powers conferred on it by ss 473DC, 473DD and 473DE. The purpose of each of those additional powers is the same: it is to regulate the circumstances in which the Authority can depart from the “primary rule” in s 473DB. In each case, in deciding whether or not to exercise those powers, the Authority is doing so for the purposes of deciding what should be the scope of the material available to it for its review task.

(emphasis in original)

49    Importantly, Mortimer and Jackson JJ also held that the question of whether the requirements of s 473DD are satisfied is a matter that the Authority is entitled to consider in light of other material before it. Their Honours said at [72]:

Just as when a Tribunal decides whether to receive evidence or information, the exercise of these powers can and should occur in the context of the review material already before the Authority, and on which according to the primary rule it should conduct its review. Whether to invite a person to an interview, whether to “get” new information of its own motion, or whether to accept “new information” proffered to it by a visa applicant – in all these circumstances the Authority is entitled to reflect on and assess the review material already before it – but for the purpose of deciding whether to depart from the primary rule and, importantly, bearing in mind its function of considering the protection visa application afresh and for itself. Assessing the proposed new material (or interview) in this context will assist the Authority in assessing relevance, in assessing how critical the additional information is to its review, and in assessing whether the preconditions laid out by Parliament can be established. To take an obvious example from the suite of provisions – in order to decide if new information could have been put before the delegate, the Authority is likely to have to consider what was put before the delegate.

50    A little further on their Honours said at [77]:

Viewed in its context, as Bromberg J identified at [42], the terms of s 473DD(b)(ii) operate as a filter, which the Authority is required to apply to “new information” proposed to be presented by a visa applicant. The subsection sets a threshold, requiring a visa applicant to satisfy the Authority the new information has that character, or, if it does not have that character, that it was not and could not have been provided to the Minister or her or his delegate prior to the s 65 decision (s 473DD(b)(i)). In either case the Authority must still be satisfied there are “exceptional circumstances” justifying including the new information in the material to be considered by the Authority on its review. Considering s 473DD as a whole, there is no basis to suppose Parliament intended some kind of intensive and final analysis of the probative value of new information to occur within the confines of s 473DD(b)(ii). As the Full Court observed in BDY18 at [23]-[26], there is some overlap, and the factors in (b) may well inform the factors in (a).

51    Their Honours did not explicitly deal with a situation in which the Authority is evaluating information to determine whether it is “credible personal information”. As a matter of principle however, there seems no reason why the Authority, while recognising that the question before it is whether the new information is capable of being believed, could not find that it is not because it is inconsistent with material already before the Authority.

52    It is possible to conceive of a situation in which an applicant completely reformulates his or her claims after having failed to satisfy a Delegate that the requirements for a protection visa are met and that the Authority decides that the reformulated claims are not credible because they are inconsistent with the claims previously made by the applicant before the Delegate. Of course, the Authority must approach the new information through the prism of s 473DD recognising that its task at that stage involves the application of a filter that does not require the applicant to satisfy the Authority that the new information will be or is likely to be accepted as true or accurate.

53    In my view it is open to the Authority to have regard to the inherent implausibility of the new information when considered in light of other information already before it for the purpose of determining whether it constitutes “credible personal information” within the meaning of s 473DD(b)(ii). What the Authority cannot do when assessing whether the new information is “credible personal information” is to require the appellant to satisfy it that the new information is true or accurate or that the Authority will accept necessarily that it is true or accurate if it were to be considered at the deliberative stage of the review. However, if the Authority concludes that the new information is evidently not credible then it is not information that it is entitled to consider at the deliberative stage.

The Authority’s Reasoning

54    As outlined above, the Authority considered the new claims at [8]-[15] of its reasons. The reasons indicate that the Authority found that the new claims were not credible personal information. The Authority said at [8]-[15]:

[8]    Beyond the new country information, the applicant has sought to clarify and add to his existing claims. The applicant’s new claims represent a significant departure from his previous claims, made during the arrival and visa interviews, and in his written visa application.

[9]    He raises for the first time claims that he was forcibly recruited by the Liberation Tigers of Tamil Eelam (LTTE) in 1993 and that he received ‘physical and military’ training from the LTTE. He claims he worked as a labourer during his time with the LTTE, but was also on the front-line in combat on one occasion. The rest of the time he was working at the camp, until January 1994 when he was discharged due to hearing problems in both ears. The condition of his discharge was that he would supply fresh fish to the LTTE. He claims for the first time that he supplied fish for the LTTE between January 1994 and May 1996. He claims that the Tamil Eelam Liberation Organisation (TELO) and the Special Task Force (STF) came to his home on two occasions, because he was suspected of being an LTTE member. The applicant claims he then left Sri Lanka for Saudi Arabia and stayed there for seven years. He claims he returned to Sri Lanka for 1.5 months, before travelling to Qatar, where he stayed between May 2003 and June 2005. He claims he was mistaken about the period that he assisted the LTTE with his boat, in terms of transporting items and fish. He claims it actually occurred between 2005 and 2006. In 2006 the LTTE and Karuna split and this allowed him to stop transporting and using his boat.

[10]    The applicant’s explanation for not raising these claims earlier was that he was fearful that he would be unable to remain in Australia and would be detained by the Australian authorities and immediately deported back to Sri Lanka. He was also reluctant to disclose this information out of fear it would get back to Sri Lanka and cause problems for his family.

[11]    In his arrival interview, the applicant claimed that the Karuna Group was accusing the applicant of helping the LTTE and that he left in 2010 after the group had come to his house. The applicant did not indicate that he ever had any other issues. He stated that he was not involved in the armed conflict and was not involved with the military. He referred to his travels to Malaysia and Indonesia, but made no claims to have worked in Qatar or Saudi Arabia.

[12]    In his visa interview, the applicant confirmed he had received, read and understood a Tamil version of the Departmental information form “Important information about your protection visa interview”. That form, as translated, states the importance of the applicant telling the truth throughout the protection visa process and providing the Department complete, personal and accurate protection claims, as early as possible, including during the interview, as well as the protections in place in relation to his personal information. During the interview, the delegate confirmed the applicant’s personal information would not be made available to the authorities in Sri Lanka. The delegate emphasised the importance of raising complete, accurate and personal protection claims as early as possible. The delegate cautioned that if the applicant did not give the Department all relevant information about his protection claims, and his application was refused, he may not have another chance to provide information to support his claims. He was advised that if he had not provided information, or he wanted to correct previous information provided, he should do so during that interview.

[13]    The applicant was asked a range of questions during the interview, and clarification was sought on numerous occasions as to the depth and extent of the applicant’s claims. The applicant did not depart from his claims in the written statement, and emphasised on multiple occasions that he assisted the LTTE with fishing and transportation between 2004 and 2005, that the Karuna Group had inquired about him in 2010, and that he had fled to Malaysia. The applicant confirmed in no uncertain terms that he had never received military training, and had not been a member or supporter of the LTTE. The applicant did not disclose any other travels to Saudi Arabia or Qatar during the visa process. The applicant also did not disclose any other concerns or claims he had with the STF or TELO.

[14]    I accept that a person with an actual LTTE profile and history may be apprehensive about disclosing those matters to the Australian authorities, and the risks to his family at home, at least initially. However, at multiple junctures during the visa application process, the applicant was advised of the importance of advancing true and complete claims, and the protections in place in relation to his personal information. The applicant was given a number of opportunities during the visa interview to advance and expand on his claims, and he was asked whether he had any other matters to add. On each occasion, he reiterated his existing claims and made no other claims. He was also asked direct and specific questions about any LTTE involvement or training, and the applicant reiterated that he had no such involvement or training. I find his conduct during the visa process and interview seriously undermines the credibility of the new claims raised before the IAA. In terms of his explanation for why these claims were not raised earlier, I note the applicant failed to disclose other cogent matters that were unrelated to any LTTE profile and not sensitive, such as his travel and work in Saudi Arabia and Qatar.

[15]    The statutory declaration submitted to the IAA was not before the delegate and is new information. The statutory declaration was made in March 2017 and on that basis could not have been provided to the Minister before the delegate’s decision was made, although its contents all relate to matters that predate the decision by more than a decade. The applicant has failed to satisfy me that he could not have provided this information to the Minister, or that it is credible personal information. I consider the applicant was fully aware of the protections in place in relation to his personal information, and the importance of raising full, truthful and complete claims. In the circumstances, I am also not satisfied that exceptional circumstances exist that warrant the IAA considering the new information and claims. Beyond this assessment, I have not had regard to the new information and claims raised in the applicant’s IAA submission.

55    The Authority’s evaluation of the new information was based on an assessment of the context in which the new claims were made and their inherent lack of credibility when considered in light of the appellant’s previous claims all of which were found to seriously undermine the credibility of the new information. In particular, the decision of the Authority was based on the undisputed fact that the new claims directly contradicted earlier statements made by the appellant, including that he had not been a member or supporter of the LTTE and had not received any military training. Viewed as a whole, the Authority’s reasons demonstrate that there is an evident, intelligible and logical justification for its finding that the new claims were not credible personal information.

Disposition

56    The appellant has failed to establish that the FCC erred on grounds specified in paragraphs 1(a) or 1(c) of his notice of appeal. Ground 2 necessarily fails with them. The remaining ground of appeal (ground 1(b)) does not need to be addressed.

57    The appeal will be dismissed with costs.

Associate:    

Dated:    31 March 2021