Federal Court of Australia

BDF17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 401

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be amended to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

2.    The appeal be dismissed.

3.    The appellant pay the first respondent’s costs of the appeal, to be fixed by way of a lump sum by a Registrar in default of agreement.

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

REASONS FOR JUDGMENT

KENNY J:

1    This is an appeal from a judgment of the Federal Circuit Court of Australia delivered on 5 September 2018, dismissing an application for judicial review of a decision of the Immigration Assessment Authority (IAA) made on 10 March 2017. The IAA had affirmed a decision made by a delegate of the respondent Minister to refuse the appellant a subclass XD-785 Temporary Protection Visa under s 65(1)(b) of the Migration Act 1958 (Cth). The judgment and reasons of the Federal Circuit Court has the citation BDF17 v Minister for Immigration & Anor [2018] FCCA 2095.

2    For the reasons set out below, I would dismiss the appeal, with costs.

Background

3    The appellant is a citizen of Sri Lanka. He is also a Tamil and a Hindu. He arrived in Australia on 8 November 2012 as an “unauthorised maritime arrival” as defined in s 5AA of the Migration Act.

4    On 23 December 2015, the appellant was invited by the Department to apply for a Temporary Protection Visa or a Safe Haven Enterprise Visa. The appellant lodged a protection visa application dated 22 February 2016, which was stamped as received by the Department on 7 March 2016.

5    The appellant’s application for the Protection Visa was accompanied by the appellant’s statutory declaration dated 22 February 2016 and by a letter from his migration agent also dated 22 February 2016. In his statutory declaration, the appellant stated, amongst other things, that his village had been under the control of the Liberation Tigers of Tamil Elam (LTTE) until 1995, when the LTTE were defeated by the Sri Lankan Army (SLA); and that, in 2005 and 2006, he had worked with the Tamils Rehabilitation Organisation (TRO), which “was owned by the LTTE”. In his declaration, he went on to say that he had left Sri Lanka and travelled to Malaysia after the abduction and disappearance of two co-workers, but had returned to Sri Lanka in 2011. Since the SLA suspected that he had links to the LTTE on account of his work for the TRO, it had detained him in a camp in 2011 for two days, subjecting him to beating on his head and body. He said that he was released on condition that he report twice a day, but he was scared to report and went into hiding. The SLA traced him to his sister’s home and told his sister that they would shoot him when they found him. Following this incident, the appellant determined to leave Sri Lanka, and did so in 2012. He said that, if he returned to Sri Lanka, he feared harm from the Sri Lankan government, “especially the SLA, [Criminal Investigation Department] and para military groups” on account of his Tamil ethnicity; and that he would be someone of interest to the authorities as he was “a young Tamil male who was from an LTTE stronghold and also had worked in a TRO factory”. He added that “my escape to a Western country illegally is going to cause further problems for me”. He feared that he would be “killed, tortured or treated in a cruel manner because I am a young Tamil male” and affirmed that “there is nowhere in Sri Lanka that is safe for me as a Tamil male”.

6    The appellant attended an interview with an officer of the Department on 22 August 2016. He was later notified by letter dated 19 January 2017 that a delegate of the Minister had refused his application for the Protection Visa as he did not satisfy s 36(2) of the Migration Act.

7    By letter dated 24 January 2017, the appellant was notified that the decision to refuse his visa application had been referred to the IAA. A copy of a “Practice Direction for Applicants, Representatives and Authorised Recipients” accompanied the letter, and included the following:

22.    We can only consider new information (information that was not before the Department) in very limited circumstances as set out in section 473DD of the Migration Act. We must be satisfied that there are exceptional circumstances to justify considering the new information provided by either you or the Department.

23.    If you want to give us new information, you must also provide an explanation as to why:

•    the information could not have been given to the Department before the decision was made, or

•    the information is credible personal information which was not previously known and may have affected consideration of your claims, had it been known.

8    The appellant (now the referred applicant) continued to be represented by his migration agent before the IAA.

9    The appellant submitted a further statement dated 13 February 2017 in the form of a statutory declaration to the IAA prior to its decision, as well as some further country information consisting of what the appellant described as a TRO media release and an Amnesty report, referring to them as “Article 1” and “Article 2” respectively: see [10] below.

10    The appellant’s further statement sought to address the delegate’s findings in respect of the SLA’s ongoing interest in him and the harm that the appellant would face upon returning to Sri Lanka. It relevantly stated:

2.    The TRO employees who were abducted in 2006 were never seen again. I was also harassed by the Sri Lankan authorities around the same time. I believe the Sri Lankan authorities are still interested in me. The fact they harassed me when I returned from Malaysia is the evidence and they also went to my family home many times after I fled Sri Lanka. Please refer [to] attached Article 1 and Article 2.

3.    The Delegate stated it is implausible that I escaped the SLA on two occasions when I saw them coming to detain me from my sister’s house. I was staying at my sister’s place in []. It is a remote area. When a vehicle enters the neighbourhood, everyone could hear the sound. That is how I managed to r[u]n from my sister’s place to escape. I ran through the houses of neighbours to save myself (houses don’t have proper fences in that area).

…

5.    In 2007, I fled Sri Lanka to Malaysia to avoid being harassed by the Sri Lankan authorities. I registered myself with the UNHCR in Malaysia. My UNHCR documents were confiscated from me by the Sri Lankan authorities. I believe my details will be in their computerized list. If I return I will be detained at the airport.

6.    If I return to Sri Lanka and the Sri Lankan authorities detain me, I don’t have the capacity (financially) to do anything for my release. I do labour work. I cannot prevent myself from the harassment from the Sri Lankan authorities.

…

10.    I believe if I am forced to return to Sri Lanka, my life will be in danger. In October 2016, Sri Lankan Northern provisional council Chief Minister C.V Wigneswaran stated that Sri Lanka is still not safe for those who are seeking asylum in foreign countries to return or to be returned.1 I could not provide this information earlier because my Protection visa interview was in August 2016 and I only found this news through community links recently after a decision was made on my case.

11.    Although the Sri Lankan civil war ended in 2009, the Sri Lankan authorities continue to harass Tamils, especially those who were associated with the LTTE. The Freedom from Torture reports (December 2016) that 279 people experienced torture in Sri Lanka since the end of the civil war in May 2009.2

(Footnote numbers in original; referenced material omitted)

11    The TRO media release (Article 1) is a pamphlet concerning the 2006 abduction and disappearance of seven TRO employees by the SLA. The Amnesty report (Article 2) is unformatted text apparently extracted from a report by Amnesty International describing the same abductions. In addition to these documents, footnotes 1 and 2 at paragraphs [10] and [11] of the appellant’s statement at [10] above purportedly contained hyperlinks to a Youtube video and Freedom from Torture blog post respectively.

IAA’s decision

12    By letter dated 10 March 2017, the appellant was informed that the IAA had affirmed the delegate’s decision. In its written statement of reasons, under the heading ‘Information before the IAA’, the IAA stated (at [3]–[7]) that it had had regard to the material referred by the Secretary under s 473CB of the Migration Act, and considered the further information provided by the appellant as follows:

On 14 February 2017 the IAA received a submission from the applicant in the form of a statutory declaration. The submission reiterates claims made to the delegate and contains arguments in response to issues in the delegate’s decision. To that extent I consider these elements do not constitute new information as defined in s.473DC(1) of the Act.

The submission also takes issue with the delegate’s finding that the applicant’s claim to have escaped from the Sri Lankan Army (SLA) on two occasions when they came to his sister’s house to detain him, to be implausible. In response the applicant has put forward that his sister’s house is located in a remote area and it is possible to hear trucks approaching from a distance. Furthermore there are no proper fences between the houses, which made it possible for the applicant to escape from the back of his sister’s property before the SLA could detain him. This information was not before the Minister when the delegate made the decision, may be relevant to the applicant’s claims for protection, and as such is new information. As the delegate did not put his concerns on the credibility of the applicant’s claim to have escaped in this manner, I am satisfied the applicant’s explanation was not, and could not have been, provided to the Minister[] before the delegate’s decision. I am also satisfied exceptional circumstances exist to justify considering this new information, which I have done in full, below.

The IAA submission lists four pieces of country information, none of which were before the delegate and are ‘new information’. The applicant states the first piece is a media release (undated) concerning the abductions of Tamil Rehabilitation Organisation (TRO) employees in 2006. The applicant states the second piece, dated 10 March 2006, is an Amnesty International Report regarding the same abductions. The third piece is a hyperlink to what appears to be a Youtube video and the fourth is a hyperlink to what appears to be a Freedom from Torture report; neither hyperlink was functional at the time of this decision.

I note the applicant was represented at his TPV interview, during which the delegate advised he would take into consideration any further information the applicant wished to provide, if received prior to making his decision. The same representative assisted the applicant with his IAA submission, which contains the new information. The applicant has claimed he could not provide this earlier because his TPV interview was held on 22 August 2016 and he only found the new information after the delegate’s decision. I note the delegate made his decision on 19 January 2017, and I consider the five months which elapsed between the TPV interview and the delegate’s decision to be an adequate period for the applicant to source supporting country information. I am not satisfied there are exceptional circumstances to justify considering the new information.

I have obtained new information, specifically information on the treatment of Sri Lankans of Tamil ethnicity and citizens who have departed Sri Lanka illegally and sought asylum aboard from the most recent Department of Foreign Affairs and Trade (DFAT) country report for Sri Lanka which was published on 24 January 2017. The delegate relied on the 18 December 2015 DFAT report for Sri Lanka which the 24 January 2017 report updates. I am satisfied that there are exceptional circumstances to justify considering this new information.

(Footnotes in original omitted)

13    After referring to the applicant’s claims for protection, the IAA discussed the applicant’s narrative of events under the heading ‘Factual findings’. Under this heading, it said, at [10], that it “found elements of the applicant’s claims to be credible, including details of his employment and travel history”, but found his evidence at the TPV interview “regarding his claimed detention in 2011, his ability to evade the authorities subsequent to his detention and the circumstances under which he decided to depart Sri Lanka in 2012, to be farfetched and lacking credibility”.

14    The IAA accepted (at [11]–[12] and [26]) that “the applicant worked as a labourer making and stacking bricks in the TRO factory for one year” between 2005 and 2006; that “the TRO factory was in LTTE-held territory”; and that “the applicant was from an SLA-controlled area”. The IAA also stated (at [12]) it was “prepared to accept the SLA did know he worked at the TRO factory, and asked him routine questions about this” but that “based on the applicant’s oral evidence at interview [it was] satisfied he was of no interest to the SLA at their checkpoints”. The IAA added (at [12]-[14]) that:

I have based my finding on the applicant’s recount of the routine questions he was asked, such as his name and address, or being asked to show his [National Identity Card] to them. I find the fact that the SLA often asked the applicant if he had any LTTE links, or made insinuations that he was with the LTTE because he was coming from the direction of [], or worked for the TRO, as not unusual in the context of the security situation in the Northern Province at that time. It is also consistent with country information … indicating the SLA regularly harassed Tamils at their checkpoints, particularly in the north.

Country information before the delegate also indicates that during the civil war the LTTE had a significant presence in the north of Sri Lanka, and many Tamil civilians residing there had some degree of contact with the LTTE in their daily lives. Furthermore Tamils travelling on public transport were often harassed at checkpoints while the SLA examined their documents. Accordingly I accept SLA soldiers questioned the applicant, and asked him if he supported the LTTE, as he has claimed. The applicant[] stated that the other passengers were also questioned, and that he was not harmed during such interactions.

Country information indicates the TRO was initially set up as a charitable organisation after the 2004 tsunami; however evidence that it was diverting relief funds to the LTTE led the US government to declare it a terrorist organisation in 2007. While there is no information before me which specifically states the LTTE owned the TRO, I find it plausible that it did. On this basis I also find it plausible the Sri Lankan authorities viewed the TRO as being against their interests, and that TRO employees could be imputed to hold an anti-Sri Lankan government, or pro-LTTE, political opinion. However, based on the applicant’s oral evidence at his TPV interview I do not accept that this occurred in his case, or that his employment gave him a profile which was of interest to the authorities.

(Footnotes in original omitted)

15    The IAA accepted (at [15]) that in 2006 or 2007 two of the referred applicant’s TRO colleagues were abducted and that he ceased working at the TRO shortly afterwards “because he was afraid”, but it stated that “based on the limited information” provided by the applicant it was not satisfied that his TRO colleagues were abducted because they worked at the TRO.

16    The IAA expressed “concerns” (at [16]) with the appellant’s evidence which commenced “with his return from Malaysia”, particularly his evidence about his return to Sri Lanka. The IAA there stated:

The applicant confirmed to the delegate that the Sri Lankan authorities at Colombo international airport did not question him about his previous employment with the TRO or possible LTTE connections upon return. The delegate put to the applicant that this indicated he was not a person of interest to the Sri Lankan authorities. The applicant responded that upon arrival in Colombo, the airport authorities confiscated his UNHCR asylum seeker registration papers, issued to him in Malaysia, but that the papers still deterred them from arresting him. I do not accept this explanation as credible. Given the Sri Lankan authorities’ focus on finding LTTE cadres and sympathisers in the aftermath of the civil war documented in the country information before the delegate, I am satisfied that if they wanted to question the applicant, the fact he had UNHCR registration papers in his possession would not have deterred them.

17    Further, the IAA assessed the applicant’s evidence about various aspects of his claimed detention in 2011 as “vague and contradictory”: see [17]. In this context, the IAA stated (at [17]) that:

The applicant was unable to provide an estimation of how long after his return from Malaysia this occurred. In the ‘Employment History’ section of his TPV application, his date of return from Malaysia is stated as 2010, in the ‘Residential History’ section the date is June 2011 and [in] his written statement it is ‘sometime in 2011’. At the TPV interview the applicant stated he still suffers from headaches, caused by the beating he sustained during his detention, and he takes medication for this. I have had regard to the amount of time which has elapsed since the claimed events took place, as well as [the] possibility that the applicant has suffered physical and psychological trauma which has affected his ability to recall timeframes and other details. I also acknowledge that dates can be difficult to recall with precision, however the applicant’s responses suggested he was not recalling evidence from his own personal experience. The delegate asked the applicant several times during the interview to provide more details regarding his detention – for example the physical environment where he was held, what was said to him, or any associated administrative processes, but the applicant did not elaborate. … Despite the delegate giving the applicant numerous opportunities, he did not provide any substantial oral evidence about what the SLA purportedly said to him in regards to his employment at the TRO.

18    The IAA also found (at [18]) “the applicant’s recount of what occurred after he was released from detention to be farfetched and, when considered in conjunction with the applicant’s vague evidence regarding the detention itself, raises further doubts it occurred”. The IAA noted, in this context, that the applicant “could not give any indication of where the [] SLA camp was in relation to where he lived, although he claimed he was ordered to report there twice a day following his detention”. The IAA found (at [18]) that the applicant’s statement that he was able to evade the soldiers when they came to his sister’s house by taking “the back exit of his sister’s property” was implausible, “given the methods at the SLA’s disposal, as a military force, to prevent the escape of an individual of interest”. The IAA did not accept that “the SLA would make the effort to take a truck to a remote place [where] they believed the applicant to be hiding, and not take adequate measures to prevent the applicant being aware of their approach”. It added (also at [18]) that:

I am satisfied that should the SLA have had an interest in locating the applicant then they would have had the capacity and resources to do so before he left for Colombo six months later.

19    The IAA concluded (at [20]–[21]) that:

In light of the significant inconsistencies, gaps and implausibilities … I am not satisfied the applicant was detained in 2011 or ordered to report twice a day to the SLA camp … as claimed. I do not accept the authorities would take five years to accuse the applicant of LTTE involvement from the end of his employment at the TRO in 2006 until June 2011. It follows I do not accept the Sri Lankan authorities have the applicant’s photograph, fingerprints or TRO employee identity card on file or that they visited his family in 2012, or in 2016, searching for him.

Accordingly I do not accept the SLA have ever had an interest in the applicant, or were searching for the applicant at any time, including since his arrival in Australia.

20    Under the heading ‘Refugee assessment’, the IAA considered the applicant’s claims under two subheadings ‘Young Tamil Male from the North – Employment with the TRO’ and ‘Returning Asylum Seeker from Australia – Illegal Departure’.

21    Under the first subheading, the IAA cited (at [24]) the “DFAT Country Information Report – Sri Lanka” dated 24 January 2017, referenced at the outset of its statement of reasons. The IAA recorded that:

DFAT states that many Tamils, particularly in the north and east of Sri Lanka reported being monitored, harassed, arrested and detained by security forces under the former Rajapaksa government. However, the country information indicates the situation for Tamils has improved markedly since the war ended, as evidenced by the cessation of forced registration of Tamils in the Northern Province.

22    The IAA also referred (at [25]) to the then current 2012 United Nations High Commission for Refugees (UNHCR) Guidelines, which recorded that it was the opinion of the UNHCR that “individuals originating from an area formerly under LTTE control, such as the applicant, do not require protection solely on that basis unless there are additional relevant factors which may give rise to a profile of risk”. The IAA stated (at [25] and [27]-[28]):

I accept that during the civil war the authorities would have regarded young Tamil males, such as the applicant, with suspicion given their potential to have LTTE involvement. However overall the country information now indicates there have been positive political developments for all Tamils on both the provincial and national level.

…

While I accept the TRO was considered as pro-LTTE by the Sri Lankan government, and officially declared a terrorist organisation by the US government, there is no credible evidence before me that the applicant was of interest to the authorities during this time or suffered any negative consequences as a result of his employment with the TRO [between 2005 and 2006]. Following his resignation the applicant was able to [continue] residing in Sri Lanka, left sometime in 2007, returned sometime in 2011, and spent at least another year there before departing for Australia by boat. I am satisfied that the applicant does not have any sort of imputed pro-LTTE political opinion as a result of his employment with the TRO. Accordingly I am also satisfied that should he return to Sri Lanka, there is no reason his previous employment with the TRO would lead the authorities to now view him with suspicion. On the evidence before me I am satisfied the applicant does not face a real chance of serious harm on account of his previous employment with the TRO should he return to Sri Lanka now, or in the reasonably foreseeable future.

I have considered all the evidence before me in the context of the improved situation in Sri Lanka, particularly the 2015 change in government. I am not satisfied the applicant has a well-founded fear of persecution due to any real or imputed pro-LTTE/anti-Sri Lankan government political opinion arising from his profile as a young Tamil male, his origins in the north, or his employment with the TRO.

23    Under the second subheading, the IAA rejected (at [30]) the applicant’s claim that he faced a real chance of harm on account of the time he had spent in Australia seeking protection, referencing DFAT’s assessment that the risk of mistreatment for asylum seekers returning to Sri Lanka was low. Although the IAA accepted (at [34]) that there was a real chance that the applicant would be questioned on his return to Sri Lanka, fined, and detained briefly as part of the re-entry process, it was not satisfied that “questioning and the fine in question amounts to serious harm”. On the evidence before it, it was not satisfied that the applicant’s loss of liberty, “such as that that the applicant may face under the [Sri Lankan Immigrants and Emigrants Act 1949] processing, would constitute serious harm”. It added (also at [34]):

Nor am I satisfied that the payment of a fine, or being held in detention for a period of up to 24 hours at the airport, or possibly a nearby prison, cumulatively amounts to serious harm. In the instance the applicant pleads not guilty, he will be released on his own personal surety. I note that in some cases a family member is required to collect illegal departees who are released, or to act as a guarantor if personal surety is not granted.

24    The IAA concluded (at [36]) that the applicant “is not currently of any interest to the Sri Lankan authorities because of his profile as a young Tamil male, his origins in the north or his previous employment with the TRO”, adding that:

Taking this into account, and the improved country information, I am not satisfied there is a real chance that the applicant would face harm as a returning Tamil asylum seeker from Australia, who departed Sri Lankan illegally, now or in the reasonably foreseeable future.

25    The IAA held that the applicant did not satisfy the definition of refugee in s 5H(1) and meet the criteria in s 36(2)(a) of the Migration Act: see [38]. The same considerations led it to hold that it did not meet the complementary protection criteria in s 36(2)(aa): see [39]-[46]. The IAA affirmed the delegate’s decision in consequence.

The Federal Circuit Court proceeding

26    The appellant filed an application for judicial review of the IAA’s decision on 20 March 2017. A further amended application was subsequently filed with the leave of the Court. There were two grounds of review, namely:

1.    The IAA misconstrued and misapplied s473DD of the Act in relation to four pieces of new information provided by the Applicant.

                                                  Particulars

i.    Instead of addressing other matters which were potentially relevant to the issue of “exceptional circumstances”, including the Applicant’s explanation as to why he had not previously provided the country information, the IAA reasoned that, because the Applicant had been given five months to provide country information between the TPV interview and delegate’s decision, the IAA was not satisfied that there were exceptional circumstances.

ii.    In deciding exceptional circumstances did not exist, the IAA did not evaluate the significance of the new information but treated it as decisive that the Applicant had been given five months to provide country information between the TPV interview and delegate’s decision, which bespoke “an inappropriately narrow understanding of the reach of the term ‘exceptional circumstances’”: see BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958 at [47].

iii.    The material at … included “credible personal information” within the meaning of s473DD(b)(ii); and the IAA misconstrued the applicable provision by only considering that material in light of s473DD(i) and not in light of the second and alternative limb – s473DD(ii)

2.    The IAA’s decision that there were exceptional circumstances under s473DD(a) of Act to consider the DFAT 2017 country information report on Sri Lanka but that there were not exceptional circumstances to consider the new Sri Lankan country information provided by the applicant was legally unreasonable in the circumstances of this case.

                                                  Particulars

The circumstances of this case included that:

i.    The IAA did not provide reasons why there were exceptional circumstances to consider the DFAT 2017 country information report except that it updated the 2015 report relied on by the delegate.

ii.    The IAA did not attend to the nature of the potential relevance or importance of the new information provided by the Applicant.

iii.    The IAA did not consider whether the content of the information the Applicant wanted to give to the IAA would have made a difference to the delegate’s decision.

iv.    It would have been easy for the IAA to ask the Applicant to provide updated hyperlinks to the new information.

27    For the reasons outlined below, the primary judge held that these grounds were not made out and dismissed the judicial review application.

28    Regarding the first ground, the primary judge held (at [49]) that the referred applicant bore the onus of “at least identify[ing] those factors which they say constitute ‘exceptional circumstances’”; that the applicant had not identified any such factor; and that, in the circumstances of the case, it was open to the IAA to conclude that there were no exceptional circumstances for the purposes of s 473DD(a) of the Migration Act. Further, the primary judge held (at [79]) that the TRO media release and the Amnesty report that accompanied the referred applicant’s further statement of 13 February 2017 did not engage s 473DD(b)(ii) because they did not contain “credible personal information” for the purposes of that provision.

29    Regarding the second ground, the primary judge held (at [91]) that “[h]aving regard to the different requirements which section 473DD of the Act imposes with respect to information provided by the applicant as compared to information otherwise obtained by the IAA, it was reasonably open to the IAA to find that there were exceptional circumstances justifying it having regard to the updated DFAT country information in circumstances where the delegate had previously relied on an earlier DFAT report”. His Honour further held (at [92]) that, for the reasons set out in relation to the first ground, the IAA’s decision regarding the supporting documents “does not disclose any irrationality or illogicality or other unreasonableness”.

The appeal to this Court

30    This is an appeal from the judgment of the Federal Circuit Court. The grounds of appeal are substantially the same as the grounds raised on judicial review in that Court. The appeal grounds were as follows:

1.     The decision of the Federal Circuit Court and Immigration Assessment authority are affected by judicial error.

2.     The learned judge erred in failing to find that the Immigration Assessment Authority misconstrued and misapplied s 473DD of the Migration Act in relation to four pieces of new information provided by the Applicant.

Particulars

i.    Instead of addressing other matters which were potentially relevant to the issue of “exceptional circumstances”, including the Applicant’s explanation as to why he had not previously provided the [country] information, the IAA reasoned that, because the Applicant had been given five months to provide country information between the TPV interview and delegate’s decision, the IAA was not satisfied that there were exceptional circumstances.

ii.    In deciding exceptional circumstances did not exist, the IAA did not evaluate the significance of the new information but treated it as decisive that the Applicant had been given five months to provide country information between the TPV interview and delegate’s decision, which bespoke “an inappropriately narrow understanding of the reach of the term “exceptional circumstances”. see BVZ16 v Minister for Immigration and Border Protection (2017)FCA 958 at [47].

iii.    The material … included “credible personal information” within the meaning of 473DD(b)(ii); and the IAA misconstrued the applicable provision by only considering that material in light of s473DD[(b)(i)] and not in light of the second and alternative limb –s473DD(b)(ii).

3.    The learned judge erred in failing to find that the Immigration Assessment Authority’s decision that there were exceptional circumstances under s473DD(a) of the Act to consider the DFAT 2017 country information report on Sri Lanka but that there were not exceptional circumstances to consider the new Sri Lankan country information provided by the applicant was legally unreasonable in the circumstances of this case.

Particulars

The circumstances of this case included that:

i.    The IAA did not provide reasons why there were exceptional circumstance[s] to consider the DFAT 2017 country information report except that it updated the 2015 report [relied] on by the delegate.

ii.    The IAA did not attend to the nature of the potential relevance or importance of the new information provided by the Applicant.

iii.    The IAA did not consider whether the content of the information … the Applicant wanted to give to the IAA would have made a difference to the delegate’s decision.

iv.    It would have been easy for the IAA to ask the Applicant to provide updated hyperlinks to the new information.

31     Ground 1 above adds little, if anything, to the two substantive grounds in the notice of appeal.

The parties’ submissions

The appellant’s submissions

32    The appellant submitted that the TRO media release and the Amnesty report, both of which concerned the abduction of TRO employees, were put forward in response to the delegate’s statement that he did not accept the claim that the appellant was detained by the SLA in June 2011. Noting that the IAA was not satisfied that the appellant’s two colleagues were abducted because they worked for the TRO, the appellant submitted that the information in these documents may have led the IAA to accept this part of his claim.

33    The appellant submitted that the YouTube and the Freedom from Torture hyperlinks were provided in response to the delegate’s conclusion that the appellant would not be at risk of harm upon return to Sri Lanka. The YouTube video was said to contain comments made by Northern Province Chief Minister Wigneswaran in October 2016, to the effect that Sri Lanka is still unsafe for those seeking asylum in foreign countries. The Freedom from Torture report of December 2016 was said to show that people continue to be tortured in Sri Lanka following the end of the civil war. Noting references in the IAA’s reasons to “the improved situation in Sri Lanka, particularly the 2015 change in government”, the appellant submitted that these supporting documents contained recent information that countered this view.

34    The appellant submitted that the evaluative task mandated by s 473DD required the IAA to reach a “lawful state of satisfaction”, referring to Graham v Minister for Immigration and Border Protection [2017] HCA 33; 263 CLR 1 at [57], [68]. The appellant submitted that it did not do so here because either there was a failure to reach the requisite satisfaction or the state of satisfaction was reached unreasonably. In this context, the appellant relied on Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; 257 FCR 111, CHF16 v Minister for Immigration and Border Protection [2017] FCAFC 192; 257 FCR 148, and BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958; 254 FCR 221. The appellant also referred to and sought to distinguish AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111.

35    In support of the appellant’s contention that the IAA misconstrued s 473DD, counsel for the appellant identified a number of errors in the IAA’s purported discharge of its statutory duty. Citing BVZ16 at [41], BBS16 at [102]-[106] and [112], CHF16 at [17]-[18], Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110; 264 FCR 249 at [51] and FKO17 v Minister for Home Affairs [2019] FCA 98 at [65], the appellant contended that the IAA was obliged to consider all relevant circumstances in evaluating whether there were exceptional circumstances under s 473DD(a); that “the IAA narrowed its consideration of whether there were exceptional circumstances to why the appellant had not brought forward the information earlier”; and in so doing it focussed only on s 473DD(b)(i) and failed to consider s 473DD(b)(ii): see at [43] below. In written submissions, citing Soliman v University of Technology, Sydney [2012] FCAFC 146; 207 FCR 277 at [55], the appellant submitted:

While there is no statutory obligation on the IAA to provide reasons about its decision under s 473DD, the IAA’s failure to direct attention to the credibility or content of the information in the new information the appellant wanted to provide is exposed by the reasons that have been given, and ought lead to the inference that the IAA did not consider s 473DD(b)(ii) at all.

36    In this context, the appellant contended that “the IAA ignored relevant considerations and, in particular, the IAA ignored the fact that the new information was put forward … in response to the delegate’s decision” and “was proffered to address reasons why the delegate had refused the application”. The appellant also submitted that the IAA should have had regard to the content and significance of the country information. The appellant submitted that the IAA erred in basing its reasoning regarding “exceptional circumstances” only on the fact that five months had elapsed between the TVP interview and the delegate’s decision; that the appellant had not provided the information in question during that time; and that the appellant had the same representative before the delegate and the IAA.

37    At the hearing, counsel for the appellant submitted the IAA “approach[ed] the information without looking at it, but with an assumption that it’s all country information”. Specifically, counsel argued that it should be inferred from the IAA’s description of the TRO media release and the Amnesty report that it went no further than looking at what the appellant had said about the new information, rather than looking at the information itself. Counsel submitted that had the IAA looked at the Amnesty report it “may not have used as a reason to reject the appellant’s claims the fact the abductions happened in the east”. Citing AQU17 at [15]-[17], counsel submitted that the IAA was required to examine the content of the material provided by a referred applicant for the purposes of its evaluative task under s 473DD(a) and in this case, in contrast with AQU17, the IAA had limited its consideration to whether the new information could in fact have been provided to the delegate.

38    The appellant’s counsel submitted in reply that it should follow from the IAA’s reasoning in relation to the DFAT country information that exceptional circumstances existed in connection with the country information accessed via the hyperlinks, particularly given the relevant publication dates (set out in the appellant’s statement at [10] above). Noting that the fact that the 2017 DFAT report “updates a previous report … was enough to find exceptional circumstances in respect of January 2017 information”, it was submitted that contemporaneous country information provided by the appellant should have been subject to the same consideration and the fact that it was not indicated the IAA’s “imbalanced approach”. The appellant further submitted that the IAA’s finding that the hyperlinked information was not to be considered under s 473DD additionally indicated “an imbalanced approach” when considered in light of the IAA’s reasons for considering the updated DFAT information.

39    As already noted, the IAA’s reasons recorded that the hyperlinks provided by the appellant in his statement dated 13 February 2017 were not “functional” at the time of its decision. At the hearing, counsel for the appellant referred to the two affidavits filed in the Federal Circuit Court concerning the hyperlinked material. One was an affidavit affirmed by Jeanne Renuka Senanayake on 23 April 2018, in which the deponent stated that she successfully used the web address <https://freedomfromtorture.org/news-blogs/9327> to access the relevant material. The second was an affidavit affirmed by Charlotte Elizabeth Saunders on 23 April 2018, in which the deponent stated, in effect, that she had been unable to access the material via the hyperlink.

40    As counsel for the appellant properly acknowledged, however, the appellant had not sought to raise “an unreasonable failure to inquire ground”. Counsel for the appellant submitted that:

The other way of looking at the fact that the IAA did not do anything more than click on the hyperlink and then find it didn’t work is that in this evaluative task that the High Court in SZMTA tells us that judges need to undertake about whether there’s a material error, would it or could it have made a difference to the approach of the IAA in this case, if the IAA understood that a relevant circumstance in assessing exceptionality of new information is what it says, if the IAA had conducted its review on the premise that a relevant circumstance in evaluating exceptionality was the content of the information and then it is easy to speculate that the IAA might have done something more to get access to the content of the material.

In substance with respect to the failed hyperlink issue, counsel for the appellant submitted that “[t]he IAA was disinterested in the content of the information, because it laboured under a misapprehension that the content of the information wasn’t relevant”.

41    The appellant also contended that the IAA “overlooked the fact that the IAA itself had found exceptional circumstances to look at recent country information that the applicant did not have that bore upon some of the same issues as some of the information the appellant sought to provide”, referring in this context to the 2017 Sri Lanka DFAT country information.

42    This latter matter fuelled the appellant’s contention about unreasonableness. Citing Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 264 CLR 217 at [75] and DYS16 v Minister for Immigration and Border Protection [2018] FCAFC 33; 260 FCR 260 at [17], the appellant argued that the IAA’s decision that “there were exceptional circumstances under s 473DD(a) of the Act to consider the DFAT 2017 country report on Sri Lanka but that there were not exceptional circumstances to consider the new Sri Lanka country information provided by the appellant was not only a misapplication of s 473DD to the evidence before it, but also was legally unreasonable in the circumstances of this case”. These circumstances included that:

(a)    The IAA did not provide reasons why there were exceptional circumstances to consider the DFAT 2017 country information report except that it updated the 2015 report relied on by the delegate.

(b)    The IAA did not attend to the nature of the potential relevance or importance of the new information provided by the appellant.

(c)    The IAA did not consider whether the content of the information the appellant wanted to give to the IAA would have made a difference to the delegate’s decision.

(d)    It would have been easy for the IAA to ask the appellant to provide updated hyperlinks to, or copies of, the new information.

(e)    In purporting to consider whether there were exceptional circumstances to consider the information, the IAA did not take into account that the IAA itself had gathered new country information, being the DFAT report dated January 2017. The DFAT report was dated only one month after the fourth piece of country information provided by the appellant and three months after the YouTube information. The only reason given for finding that there were exceptional circumstances to consider the DFAT report was that “The delegate relied on the 8 December 2015 DFAT report for Sri Lanka which the 24 January 2017 report updates”.

(f)    The IAA’s inconsistent approach to the new DFAT report it obtained and the New Information that appellant want[ed] the IAA to consider lacks intelligible justification.

43    The appellant further submitted that the IAA focussed only on s 473DD(b)(i) and did not look more broadly at s 473DD(b)(ii). The appellant contended that the IAA failed to engage in the requisite active intellectual process to see if the material was “credible personal information”. Citing BWA16 v Minister for Immigration & Anor [2017] FCCA 3106, the appellant submitted that the IAA misconstrued s 473DD by wrongly assuming that country information that was not about the appellant could not be “credible personal information”. Referring to the definition of “personal information” for the purposes of the Migration Act, the appellant argued that the information in the TRO media release and the Amnesty report included information about identifiable individuals, and was therefore “personal information”. The appellant submitted that “[s]omething that is known colloquially as ‘country information’ may include information that is ‘information or an opinion about an identified individual, or an individual who is reasonably identifiable’”, as was the case with the information in the TRO media release and the Amnesty report.

44    Finally, referring to FKO17 at [65], the appellant submitted that the IAA may have come to a different conclusion about the appellant’s claims had it considered the new information, particularly about the appellant’s claims to fear harm as a former TRO worker and in respect of the continuing problems in Sri Lanka evidenced by the hyperlinked country information.

The Minister’s submissions

45    The Minister commenced his legal analysis with the submission that the conditions in s 473DD(a) and (b) are cumulative, with the result that where the referred applicant proposes to give new information to the IAA, the IAA must be satisfied that the criteria in both paragraphs (a) and (b) are met before it can consider that information. The Minister acknowledged, however, that it was only necessary to satisfy either subparagraph (b)(i) or (b)(ii) in order to satisfy s 473DD(b). The Minister further accepted that the IAA’s satisfaction of a matter in s 473DD(b) may inform its satisfaction of the matter in s 473DD(a), referring to BBS16 at [102] and CHF16 at [44], but also noting the statement in AQU17 at [14] that whether such a matter would have such a bearing depends on the particular case.

46    Citing CVS16 v Minister for Immigration and Border Protection [2018] FCA 951 at [25]-[30]; BVD17 v Minister for Immigration and Border Protection [2018] FCAFC 114; 261 FCR 35 at [41]-[56] (BVD17 (FCAFC)) (relevantly affirmed in BVD17 v Minister for Immigration and Border Protection [2019] HCA 34 at [39]-[40] (BVD17 (HCA))); DLC17 v Minister for Home Affairs [2018] FCAFC 230 at [22]; and DLB17 v Minister for Home Affairs [2018] FCAFC 230 at [22], the Minister submitted that:

[T]he Court should take care in inferring, from the Authority’s written statement under section 473EA, that the quality or nature of the new information (see section 473DD(b)) has not been considered by the Authority in assessing whether it is satisfied that there are exceptional circumstances to justify considering the new information. That is because section 473DE does not require the Authority to give a comprehensive account of its assessment for the purposes of section 473DD. And, as the High Court explained in Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 at [25], where (as here) a decision-maker is not obliged to give reasons for a decision, “it is difficult to draw an inference that the decision has been attended by an error of law from what has not been said by the [decision-maker]”.

47    At the hearing counsel for the Minister submitted, with reference to BVD17 (FCAFC) and AQU17 at [14], [16]-[17] that the IAA was not required to give a comprehensive account of its assessment for the purposes of s 473DD, and that paras [5] and [6] of the written statement therefore cannot be assumed to be a complete statement of its reasons. Counsel for the Minister submitted that:

[O]ne doesn’t readily draw the inference that the Authority misunderstood what DD(a) means in circumstances where, albeit that the country information was relevant, the applicant was professionally represented, [and] gave no indication as to the significance of it.

48    While the Minister contended that the IAA was not required to consider (or record separate findings) as to whether the information would have satisfied the criterion in s 473DD(b)(ii), the Minister also contended that the written statement supports the inference that the IAA in fact considered each of the criteria in that provision. The IAA rejected the appellant’s claim that the YouTube video could not have been provided to the delegate before the delegate’s decision and, implicitly, did not consider that the information was credible “personal information” which may have affected the consideration of the appellant’s claims within the meaning of s 473DD(b)(ii).

49    The Minister submitted that there had been no misconstruction of s 473DD(a) in this case, bearing in mind that the appellant did not “clearly articulate what (if any) ‘exceptional circumstances’ justified considering the new information”. Referring to BBS16 at [104], [108]-[112], BVZ16 at [39]-[41], CHF16 at [39], [44]-[45] and DLB17 at [21], the Minister submitted that:

[W]hat are the relevant circumstances to be considered will be affected by what (if anything) the appellant has claimed give rise to “exceptional” circumstances, especially when the appellant is professionally represented (as here).

50    The Minister referred to AQU17 at [14], in support of the proposition that the determination to be made by the IAA under s 473DD(a) requires consideration of the facts and circumstances in each particular case. The Minister submitted that when assessing these facts and circumstances, “those circumstances are informed by the manner in which the applicant approaches the Authority, and what they say and what the representative says”. Counsel for the Minister submitted that it was unsurprising that the IAA did not discuss the supposed significance of the information, “given the minimal information” given by the referred applicant (now the appellant) and the fact that the delegate had in fact accepted that the “country information indicates that TRO workers were kidnapped by the Sri Lankan government in February 2006”.

51    The Minister submitted that it was clear from [6] of the IAA’s reasons that it did not accept that the criteria in s 473DD(b)(i) or, implicitly, (b)(ii) were met. There was therefore an independent basis for the IAA’s decision not to consider the new information.

52    The Minister contended that the appellant’s submission – that simply because the documents included information about “identified individuals” then they included “personal information” – was misconceived. Noting that s 473DD, read with the definition of ‘new information’ in s 473DC(1), meant that “[f]or information to be ‘new information’, the Authority must consider that it may be ‘relevant’”, the Minister submitted that there may be some information in a particular document that satisfies this test and some that does not. The Minister submitted that, while country information may include personal information as defined:

The questions … are whether the Authority considered that that “personal information” may be relevant to the review, and may have affected consideration of the appellant’s claims. Often it will only be the non-“personal information” in the document that may be relevant (e.g., information as to conditions in the country).

(Emphasis in original)

53    The Minister relied on BYA17 v Minister for Immigration and Border Protection [2019] FCAFC 44; 269 FCR 94 at [51] and BRA16 v Minister for Immigration and Border Protection [2018] FCA 127 at [25] in support of the proposition that whether s 473DD(b)(ii) is engaged “depends on how [the] information is being used, and what relevance … it has”. The Minister submitted that the IAA’s description of the information as “country information” in its written statement supported the inference that what it took to be “relevant about those articles was the description of events” rather than the personal information. The Minister further submitted that, even if the IAA misconstrued the expression “credible personal information” in s 473DD(b)(ii), it did not follow that the IAA had misconstrued s 473DD(a) or otherwise made a jurisdictional error, referencing AOV18 v Minister for Home Affairs [2018] FCA 1871 at [4(2),(3)].

54    As to legal unreasonableness, the Minister submitted that the IAA “either was, or was not, satisfied that there were ‘exceptional circumstances’ to justify considering the information which the appellant provided”; and “[t]o impugn any given reason of the Authority as to why it was not so satisfied as ‘unreasonable’ is opaque; essentially, it must amount to saying that it was not open to the Authority to not be satisfied on account of that reason”. The Minister contended that there was nothing irrational about the IAA’s reasons at [5]-[7]; and noted that, for information obtained by the IAA, rather than given to it by a referred applicant, the IAA is not required to be satisfied of the matter in s 473DD(b). Counsel for the Minister submitted that “[w]hat the Authority was doing in deciding to consider further DFAT information was reflecting the fact that DFAT had updated its own information, and one can readily see why one would rely on the latest from the same source”. Counsel further submitted that the documents attached to the appellant’s statement did not provide updated information in a manner comparable to the DFAT report, given that the TRO media release and the Amnesty report related to events in 2006 and the hyperlinks did not work. At the hearing counsel argued that the hyperlinks were simply the subject of footnotes, which in the ordinary course may not be followed up by a reader seeking the primary source of the relevant information. Counsel for the Minister further submitted “part of the reason why one would be very hesitant to conclude that it was incumbent on the Authority to do something [more] here … relates to the particular information it was given about what was behind those links”, which indicated that it was unlikely to meet the criteria in s 473DD(b).

Consideration

55    Division 3 of Pt 7AA of the Migration Act governs the conduct of a review by the IAA of a “fast track reviewable decision”, relevantly defined to include, subject to an exception which is not presently relevant, a decision to refuse to grant a protection visa to a “fast track applicant”. There is no dispute that the appellant was properly characterised as a “fast track applicant” and that the delegate’s decision was therefore a “fast track reviewable decision”.

56    Within Div 2 of Pt 7AA, s 473CC requires the IAA to review a “fast track reviewable decision” referred to it by the Minister under s 473CA. Division 3 of Pt 7AA (with ss 473GA and 473GB) “is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted” by the IAA: see s 473DA.

57    Also within Div 3 of Pt 7AA, s 473DB “sets out the primary requirement that, subject to the Part, 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 referred applicant”: Plaintiff M174 at [22]. Section 473DB(1) provides as follows:

(1)    Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under s 473CA by considering the review material provided to the Authority under section 473CB:

(a)    without accepting or requesting new information; and

(b)    without interviewing the referred applicant.

58    Subdivision C of Div 3 provides for exceptions to the general rule that the IAA is not to accept or request new information. The central provisions providing for these exceptions are ss 473DC, 473DD and 473DE. This appeal focussed on 473DD, but, of course, this provision must be understood in its statutory context.

59    Section 473DC is facultative. It is concerned with the circumstance in which the IAA can get, request or accept “new information”, being information that the IAA considers may be relevant and that was not before the Minister or delegate at the time of deciding to refuse to grant the protection visa: Plaintiff M174 at [24]. Section 473DC provides:

(1)    Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:

(a)    were not before the Minister when the Minister made the decision under section 65; and

  (b)    the Authority considers may be relevant.

(2)    The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.

(3)    Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:

  (a)    in writing; or

(b)    at an interview, whether conducted in person, by telephone or in any other way.

60    As Gageler, Keane and Nettle JJ said in Plaintiff M174 at [24], “new information” is limited to information “(which may or may not be recorded in a document), in the ordinary sense of a communication of knowledge about some particular fact, subject or event”.

61    Section 473DD imposes restrictions on when the IAA can consider new information, as follows:

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.

62    In their joint judgment in AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; 384 ALR 196, Kiefel CJ, Gageler, Keane and Gordon JJ stated at [11]:

Logic and policy…demand that the Authority assess such new information as it might obtain from the referred applicant first against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and only then against the criterion specified in s 473DD(a).

63    I interpolate here that judgment and reasons in AUS17 were delivered by the High Court after this matter was heard. By agreement with the appellant’s solicitors, the Minister’s solicitor emailed Chambers to draw the Court’s attention to AUS17, noting that it was “potentially relevant to the issues arising in this matter”. The parties did not seek to make further submissions concerning the decision.

64    In order to meet s 473DD(b)(i), the IAA must be satisfied that the new information given or proposed to be given by the referred applicant was not and could not have been provided to the Minister before the Minister (or his delegate) made the decision to refuse to grant the protection visa. To meet the requirement in s 473DD(b)(ii), the IAA must be satisfied that the information is new information given, or proposed to be given, by the referred applicant, which: (1) is credible information about an identified individual, or an individual who is reasonably identifiable; (2) 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, may have affected the consideration of the referred applicant’s claims: see Plaintiff M174 at [34].

65    The criterion in s 473DD(a) must also be met before the IAA can consider new information. Citing R v Kelly [2000] 1 QB 198 at 208 as quoted in BVZ16 at [40], Gageler, Keane and Nettle JJ said in Plaintiff M174 at [30]:

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

66    In AUS17, the plurality said, with respect to the two limbs of 473DD, at [12]:

[T]he Authority does not perform the procedural duty imposed on it by s 473DD in its conduct of a review if it determines in the purported application of the criterion in s 473DD(a) that exceptional circumstances justifying consideration of new information obtained from the referred applicant do not exist without first assessing that information against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and then taking the outcome of that assessment into account in its assessment against the criterion specified in s 473DD(a).

67    Furthermore, having assessed the new information against the criteria in s 473DD, “the Authority must take that new information into account in making its decision on the review if those criteria are met and must not take that new information into account in making its decision on the review if those criteria are not met”: see AUS17 at [6].

68    It may also be noted that s 473EA, in Div 4 of Pt 7AA, requires a decision of the IAA on a Pt 7AA review to be accompanied by a written statement setting out both “the decision of the Authority on the review” and “the reasons for the decision”. In giving its reasons for its ultimate decision to affirm or remit a decision upon review, however, the IAA is “not required to give reasons for the exercise or non-exercise of a procedural power”: BVD17 (HCA) at [16]. Since s 473DD is one such “procedural power”, the IAA is not required to give comprehensive reasons for its determination to exercise or not exercise power to consider new information pursuant to that provision.

69    For the following reasons, this appeal must fail.

Non-satisfaction of s 473DD(b)

70    As noted above, s 473DD required the IAA first to assess the new information on which the appellant sought to rely under s 473DD(b): AUS17 at [11]. I touch on this further point below. For the following reasons, I reject the appellant’s submission regarding s 473DD(b)(ii), to the effect that the IAA mistakenly treated the information in the TRO media release and the Amnesty report as “country information” that could not therefore be credible “personal information” within the meaning of that provision.

71    As we have seen, subject to specific statutory exceptions, the IAA must conduct its review on the basis of the material that it is given pursuant to s 473CB. The result is that, as a general rule, its review is confined to the material that the referred applicant provided to the Minister (here, his delegate) and any other material in the Secretary’s possession or control that, at the time the decision is referred to the IAA, the Secretary considered relevant to the review: s 473CB(1)(b) and (c). It may be recalled that s 473DD commences with the proposition that the IAA must not consider any new information unless that new information meets the criteria in s 473DD(a) and (b). That is, s 473DD confirms the general rule against the IAA’s acceptance of new information and provides for exceptions to the rule.

72    Section 473DC(1) identifies “new information” as:

…. documents or information (new information) that:

(a)    were not before the Minister when the Minister made the decision under section 65; and

  (b)    the Authority consider may be relevant

73    As we have also seen, before the IAA can depart from the general rule precluding its acceptance of new information sought to be given to it by a referred applicant, s 473DD requires the referred applicant to satisfy the IAA that the “new information” meets the criteria in s 473DD(b)(i) or (ii).

74    The appellant’s argument at this point focussed on subparagraph (b)(ii), which, amongst other things, required the appellant as the referred applicant to satisfy the IAA that the “new information” he sought to provide was credible “personal information”. The expression “personal information” for the purposes of the Migration Act has the same meaning as in the Privacy Act 1988 (Cth): see Migration Act, s 5(1). Section 6 of the Privacy Act defines “personal information” as “information or an opinion about an identified individual, or an individual who is reasonably identifiable” (irrespective of whether the information or opinion is true and recorded in a material form).

75    In order to rely on s 473DD(b)(ii), the appellant had to satisfy the IAA that he sought to provide “new information” within the meaning of s 473DC and, amongst other things, that that information was “personal information” for the purposes of s 473DD(b)(ii).

76    It may be accepted that information about conditions in a specific country (usually called “country information”) may include information about an identified or reasonably identifiable individual. Country information may therefore include “personal information” for the purposes of the Migration Act. It does not follow from this, however, that such information (being the particular information about an identified or reasonably identifiable individual) is relevantly “new information” for the purposes of Div 3 of Pt 7AA of the Migration Act. This is because “new information” for the purposes of Div 3 of Pt 7AA is not just information that was not before the Minister or his delegate when the IAA reviewable decision was made, it is also information that the IAA considers potentially relevant to the outcome of its review: see s 473DC(1); Plaintiff M174 at [24].

77    Although country information may include information about an identified or reasonably identifiable individual, the IAA will usually consider this kind of information relevant only in so far as it relates to the conditions in a relevant country at a relevant time. In so far as the country information includes other information, including information about an identifiable individual (other than the referred applicant or perhaps a family member or other relevant connection), it will not be relevant to the IAA’s review. As a consequence, “country information” will be “new information” for the purposes of Div 3 of Pt 7AA (including s 473DD(b)(ii)) only in so far as it relates to the conditions in a country relevant to the review, in the appellant’s case, Sri Lanka. In so far as it relates to an identifiable individual, country information will therefore generally not be “new information” for the purposes of s 473DD(b)(ii) even though it may constitute “personal information” for the purposes of the Migration Act: compare BYA17 at [51] and BOS17 v Minister for Immigration and Border Protection [2020] FCA 75 at [59].

78    As previously stated, the IAA was not obliged to give comprehensive reasons for its determination regarding its exercise of the power conferred by s 473DD. I accept that the IAA did not use the statutory language of s 473DD save that at the conclusion of [6] and [7] it referred to its non-satisfaction of “exceptional circumstances” to justify acceptance of the referred applicant’s country information and its satisfaction of there being “exceptional circumstances” to justify consideration of the updated DFAT country report. It is, I think, tolerably clear from its analysis at [3]-[7] of its reasons that it directed its attention to s 473DD, addressing the circumstances relevant to s 473DD(b) before recording a lack of satisfaction regarding the criterion in s 473DD(a). In these circumstances it seems to me implicit that the IAA addressed s 473DD(b)(i) and (ii), as well as s 473DD(a): compare CPP17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 199 at [112]. In any event, even if I were wrong in this, the IAA’s error could not have affected the outcome of the review.

79    In the present case, the IAA described the information in the TRO media release, the Amnesty report and accessible via hyperlink as “country information” and, as such, relevant to conditions in Sri Lanka (reasons at [5]). The appellant did not indicate that the hyperlinked information had any other relevance. The TRO media release and the Amnesty report concerned the 2006 abduction and disappearance of identified individuals unrelated to the appellant, but who, like the appellant, had worked for the TRO. The appellant relied on this information to support his claim that he had been “harassed by the Sri Lankan authorities around the same time”. That is, he relied on the information in these two documents as corroborative country information, in order to show the nature of the conditions in the country at the time supported his harassment claim. The fact that the IAA did not regard information specifically about the identified individuals as having any potential relevance to the review was therefore unremarkable, and the appellant has not demonstrated error in the IAA’s implicit but clear determination in its reasons at [5]-[6] that s 473DD(b)(ii) was not engaged in this case.

80    Further, as already noted, the IAA found that the appellant had an “adequate period” between his interview on 22 August 2016 and the delegate’s decision on 19 January 2017 “to source supporting country information”: reasons at [6]. It follows that the appellant failed to satisfy the IAA that the new information was capable of meeting the criterion in s 473DD(b)(i). There is no error shown in this state of non-satisfaction.

81    The IAA could not consider the country information given to it by the appellant unless he satisfied the IAA that this information was new information that met the criteria in s 473DD(b)(i) or (ii). The appellant did not do so, and no error is shown in the IAA’s determination not to accept the media release, the Amnesty report or the hyperlinked information for consideration on the review. It follows that the appeal must be dismissed.

Non-satisfaction of s 473DD(a)

82    As we have seen, the appellant also challenged the IAA’s failure to find there were “exceptional circumstances” within the meaning of s 473DD(a) to justify it considering the country information that he sought to place before it. For the reasons I am about to state, I reject this submission. Even if it were accepted, however, it could not overcome the effect of the appellant’s failure to satisfy the IAA that he met the criteria in either s 473DD(b)(i) or (ii).

83    As the High Court observed in Plaintiff M174, the expression “exceptional circumstances” bears its ordinary, broad meaning, but precisely what amounts to exceptional circumstances is “inherently incapable of exhaustive definition”. It is evident that, to determine whether it is relevantly satisfied, the IAA must make an evaluative judgment as to whether exceptional circumstances exist to justify considering the new information: see, for example, DYS16 at [17].

84    It has been repeatedly said that this Court should not construe the reasons of administrative decision-makers minutely “with an eye keenly attuned to the perception of error”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 272. This basic principle must be borne in mind in considering the appellant’s submissions regarding the appellant’s claim that the IAA misconstrued or misapplied s 473DD(a). Further, as already noted, s 473DE does not require the IAA to give reasons for the exercise or non-exercise of the statutory powers that s 473DD confers on it (see [68] above) and, as the High Court said in Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; 258 CLR 173 at [25]:

It is well settled that in the context of administrative decision-making, the court is not astute to discern error in a statement by an administrative officer, which was not, and was not intended to be, a statement of reasons for a decision that is a broad administrative evaluation rather than a judicial decision.

These considerations tell against an overly zealous examination of the IAA’s reasons in order to identify possible error.

85    When fairly read, paragraphs [3]-[7] of the IAA’s reasons show that the IAA engaged in making an evaluative judgment of the facts and circumstances before it in order to determine whether it was satisfied that there were “exceptional circumstances” justifying its consideration of the TRO media release, the Amnesty report and the hyperlinked information. It is clear from [5] of the IAA’s reasons that it had regard to the nature of the information and took that into account. It also clear from [4]-[6] that the IAA had regard to the appellant’s claims about the information and why he sought to place the information before the IAA when it had not been provided to the delegate. This was a case in which the IAA expressly had regard to the appellant’s explanation, and the potential significance of the new information for the appellant’s protection claims. The appellant’s explanation satisfied the IAA that there were exceptional circumstances justifying it considering the new information about the appellant’s means of escape from the SLA when the SLA searched his sister’s house (being the place where the appellant said he had been in hiding). In relation to this new information, the IAA accepted that the appellant could not have provided this information to the delegate because the delegate had not made the appellant aware that the delegate had credibility concerns about this part of the appellant’s narrative prior to the delegate’s decision. The IAA also accepted that this new information was potentially relevant to the appellant’s protection claims: see reasons at [4].

86    The IAA considered and rejected the appellant’s claim that he was unable to provide the delegate with the new country information (being the TRO media release, the Amnesty report and hyperlinked information) because “he only found the new information after the delegate’s decision”. The IAA found that the delegate had advised the appellant at his interview in August 2016 that the delegate would consider any further information the appellant wished to provide if the information was received before the delegate made his decision. The IAA held that since the delegate did not make his decision until January 2017, the appellant, who had the same representative before it as before the delegate, had had adequate time in which to “source supporting country information”: reasons at [6].

87    It was clearly open to the IAA to reject the appellant’s explanation that he had only found the country information after the delegate’s decision. The appellant did not point to any other fact or circumstance that, in his submission, warranted a finding of exceptional circumstances justifying the IAA considering the new information. Bearing in mind the earlier discussion of s 473DD(b), I can discern no relevant error shown in the IAA’s reasoning process, which is consistent with the evaluative judgment to which s 473DD(a) gives rise: contrast BVZ16 at [46]; BBS16 at [111]; CHF16 at [19], [44]; and Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110; 264 FCR 249 at [50].

88    Further, I accept that, as the Minister submitted, it was not unreasonable in the legal sense for the IAA to be satisfied that there were exceptional circumstances justifying its reliance on an updated DFAT country report on Sri Lanka, having regard to the fact that the delegate had relied on an earlier country report from the same source. It must be borne in mind that, as regards the updated DFAT country report, there was no statutory requirement to satisfy s 473DD(b) because that report was not sought to be given by the referred applicant.

89    In sum, the applicant has not shown a sufficient basis in the IAA’s reasons or otherwise from which it could properly be inferred that the IAA misconstrued s 473DD(a), misunderstood or misapplied the expression “exceptional circumstances” in s 473DD(a), or made a legally unreasonable finding in this regard.

Disposition

90    For the foregoing reasons, the appeal should be dismissed, with costs.

Associate:

Dated:    22 April 2021