Federal Court of Australia

FMA17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 456

ORDERS

THE COURT ORDERS THAT:

1.    The appellant have leave nunc pro tunc to file his written submissions dated 10 February 2020 concerning the police complaint reports.

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 30 May 2019, which dismissed an amended application for judicial review of a decision of the Immigration Assessment Authority (IAA) made on 10 November 2017. The IAA affirmed a decision of the delegate of the respondent Minister not to grant the appellant a Safe Haven Enterprise (Class XE) (Subclass 790) visa. The Federal Circuit Court’s decision has the citation FMA17 v Minister for Home Affairs & Anor [2019] FCCA 1461 (FMA17 FCCA).

2    For the following reasons, I would dismiss the appeal.

Background

3    The appellant is a citizen of Sri Lanka. He is a Tamil. He was raised in Sri Lanka as Hindu. He converted to Christianity in Australia. He arrived in Australia as an unauthorised maritime arrival on 18 October 2012.

4    The appellant was interviewed by officers of the Minister’s Department on 6 January 2013. He was invited to apply for a Safe Haven Enterprise visa (SHEV) by a Departmental letter dated 23 December 2015. He made a valid application for a SHEV, which was received by the Department on 7 March 2017.

5    A number of documents were attached to the appellant’s application, including a statutory declaration dated 4 March 2017, two untranslated extracts from a police information book, and a document prepared by the Asylum Seeker Resource Centre mostly containing country information.

6    The appellant’s claims (in the record of the 6 January 2013 interview, his 4 March 2017 statutory declaration and his visa application) can be summarised as follows:

    During high school, the appellant met Y, who assisted him with his schooling. While at school, the appellant would visit Y’s house “a lot” after school and on weekends.

    Y was a member of the Tamil National Alliance (TNA) and, some time after the appellant met him, Y was elected to the Sri Lankan Parliament.

    In 2012, after the appellant had finished school and Y had been elected to Parliament, the appellant would sometimes travel to visit Y and stay at his house.

    The appellant also accompanied Y to TNA meetings, on political business and once or twice when he visited Parliament in Colombo.

    Around this time, some opponents of Y threatened him because he supported Y. While travelling to his sister’s house, which was not far from Y’s house, the appellant was beaten up by two men who told him to stop supporting Y. After this incident, the appellant went into hiding.

    On 21 September 2012, a group of people went to see the appellant’s father. They asked where he was, and attacked his younger brother. The appellant’s father made a police complaint on the same date. Some days later, his father complained to the Human Rights Commission of Sri Lanka.

    Three months after the appellant left Sri Lanka in 2012, a group of people went to the appellant’s parent’s house and beat up his father.

    In 2016, a group of people went to his parent’s house and beat up the appellant’s father and younger brother. The appellant’s father made another police complaint.

    The appellant was unsure who was committing these attacks. He suggested that they could be the Karuna or Pillayan Groups, or people from another political party. He claimed that the Sri Lankan authorities could not protect him from these groups.

    The appellant claimed that it was not safe for him in Sri Lanka as a Tamil, and as a person associated with a TNA politician.

7    By a letter dated 26 July 2017, a Departmental officer invited the appellant to an interview on 16 August 2017. At this interview, the appellant provided further documentation, including translations of the police information book extracts that had accompanied his visa application and a letter from the TNA politician Y, dated 11 December 2012.

8    A delegate of the Minister refused the appellant’s visa application on 24 August 2017. In the decision record, the delegate relevantly accepted that: (1) while the appellant was not involved with any political party (including the TNA), he may have been targeted by other political groups (such as the Karuna and Pillayan Groups) because of his involvement with Y; (2) the appellant did not raise any specific issues about mistreatment arising from his Tamil ethnicity; he was not a person of interest on account of being a Tamil; and, based on country information, the appellant did not have a well-founded fear of persecution on account of being a Tamil; (3) the chance of the appellant being imputed with a connection to the Liberation Tigers of Tamil Eelam (LTTE) because of his Tamil ethnicity was “remote”; (4) there was no real chance that the appellant would be pursued and seriously harmed because of his TNA association; and (5) the appellant would not suffer serious harm as a failed Tamil asylum-seeker. The delegate concluded that the appellant was not a person to whom Australia owed protection obligations and did not satisfy s 36(2)(a) of the Migration Act 1958 (Cth). For much the same reasons, the delegate held that the appellant did not satisfy s 36(2)(aa) of the Migration Act.

9    The Department’s letter of 24 August 2017, which notified him of this decision, stated:

If you are receiving financial or case worker assistance from the Australian Government, your assistance will continue as your application has been referred to the IAA for review.

(Emphasis added)

10    On 29 August 2017 the delegate’s decision to refuse him the SHEV was referred to the IAA for a review, and the appellant was so notified by letter of the same date. This letter specifically stated:

The decision of the Minister for Immigration and Border Protection to refuse you a protection visa has been referred to the Immigration Assessment Authority (the IAA) for a review. This matter was referred to the IAA on 29 August 2017.

A copy of this letter was also sent to the appellant at his email address by email dated 29 August 2017.

11    A document entitled “Practice Direction for Applicants, Representatives and Authorised Recipients” accompanied this letter and provided further information about the IAA’s review, including about the limited circumstances in which it could consider new information.

Before The IAA

12    By at least 1 November 2017 the appellant had retained a migration agent to represent him before the IAA. In a telephone call that day, the migration agent spoke with a representative of the IAA by phone. The agent told the IAA that the appellant had not received notice that his matter had been referred to the IAA and that the appellant had recently changed address. The agent sought additional time to submit a submission to the IAA, and was advised to “put their concerns in writing”. The agent indicated that she would do so.

13    The IAA subsequently wrote to the appellant at his new address by letter dated 3 November 2017, to inform him that it had not granted the appellant an extension of time. The letter relevantly stated:

I refer to the telephone contact with the IAA on 1 November 2017. During the contact your agent indicated a request for additional time to make a submission would be submitted as you claim you did not receive notice about referral to the IAA. Although no written request has been received, I will consider that a request was made by telephone on 1 November 2017, and make a determination on that basis.

Your request has been considered, but not granted in this case.

Under the Practice Direction for Applicants, Representatives and Authorised Recipients, submissions should be given to the IAA within 21 days of the date on which the case was referred to us by the Department of Immigration and Border Protection.

As the case was referred on 29 August 2017 this 21 day period ended on 19 September 2017 and the IAA is not satisfied that the circumstances warrant extending the time in this case. …

(Bold in original)

14    In the meantime, however, the appellant, via his representative, under cover of an email dated 3 November 2017, provided a submission to the IAA also dated 3 November 2017. Acknowledging the bar on new information in s 473DD of the Migration Act, this submission contended that the IAA should nonetheless consider the submission and enclosures on the basis that ss 473DD(b)(i) and 473DD(a) were satisfied, because:

(i)    The applicant was without legal representation or assistance at the primary stage. Due to his limited means, he could avail assistance only through the Asylum Seeker Resource Centre’s drop-in clinic service. Accordingly, the authority may be satisfied that the country information detailed below was not, and could not have been, provided to the Minister, and accordingly may be considered pursuant to s 473DD(b)(i).

(ii)    There are ‘exceptional reasons’ why any new information detailed in these submissions should be taken into account, as set out in s 473DD(a) given that:

a.    The applicant was previously unrepresented in relation to this very important application and accordingly was limited in presenting his claims; and

b.    [The applicant] maintains that he was unaware that his application was referred to the IAA as the letter which he received from the Department of Immigration and Border Protection on 24 August 2017 made no reference to this referral. [The applicant] was not advised of the referral by email or by post.

(Bold in original)

15    The submission also contended that “the country information … indicates that Tamils continue to face ongoing and systemic discrimination and harassment in Sri Lanka, particularly in the northern and eastern provinces”; that the country information indicates that the appellant would be imputed as a LTTE sympathiser because of his TNA involvement and therefore at risk of harm; and further, if considered a LTTE sympathiser, might be detained by Sri Lankan authorities if returned to Sri Lanka. The submission concluded that if the IAA was not satisfied that the appellant met the requirements to be met to be granted a SHEV, “then a hearing must be convened to discuss [the appellant’s] claims”.

16    The IAA affirmed the delegate’s decision not to grant the appellant a protection visa on 10 November 2017. At the outset of its reasons, under the heading “Information before the IAA”, the IAA addressed the 3 November 2017 submission. The IAA accepted that to the extent that the submission “engages in legal argument regarding the delegate’s decision, and is based on information that was before the delegate, it is not new information” and that it would have regard to any such argument and information (at [4]). As to the other material, the IAA said, at [5]-[11]:

[5]    The submission includes the claim that by virtue of his association with the Tamil National Alliance (TNA) the applicant may be imputed a connection with the Liberation Tigers of Tamil Ealam (LTTE) and as a result be at risk, including a risk of being detained by authorities on return to Sri Lanka. This claim was not before the delegate and is new information. …

[6]    The representative claims there are exceptional reasons why any new information detailed in the submission should be taken into account. It is claimed that because the applicant was unrepresented before the delegate he was limited in presenting his claims, and also that the applicant was unaware his application was referred to the IAA as the letter received from the Department of Immigration and Border Protection (DIBP) on 24 August 2017 made no reference to this referral, and the applicant was not advised of the referral by email or by post.

[7]    I have reviewed the letter from DIBP dated 24 August 2017 and am satisfied it includes information indicating the application has been referred to the IAA for review. In addition, on 29 August 2017, the IAA sent the applicant, by post and email, acknowledgment of referral of his application to the IAA. In any event, even if the applicant was not aware of the referral to the IAA, this has no bearing on why he could not have provided the information to the delegate prior to her decision.

[8]    Although the applicant was unrepresented at the SHEV interview he received assistance from the Asylum Seeker Resource Centre’s drop-in clinic service, and provided the delegate a bundle of country information prepared by that service. The additional country information reports the applicant now requests be considered were published well before the delegate’s decision, the content is similar to other country information considered by the delegate, and contain no information personal to the applicant.

[9]    I find there are no exceptional circumstances to justify consideration of the reports. Further, the applicant has not satisfied me the information could not have been provided before the delegate’s decision, or that the reports contain personal information that may have affected the consideration of the claim and I am therefore not satisfied s 473DD(b) is met.

[10]    With regard to the new claim, I note the applicant did not make this claim during the arrival interview, in his statutory declaration, or during the SHEV interview. The applicant was given ample opportunity to make the claim, however he did not. This leads me to believe he does not genuinely hold the belief he will be imputed a connection to the LTTE on the basis of his purported associated with the TNA, or for any other reason. I find there are no exceptional circumstances to justify consideration of the new claim. The applicant has not satisfied me the information could not have been provided before the delegate’s decision, and the new claim contains no reference to personal information of the applicant that was not previously known. I am therefore not satisfied s 473DD(b) is met.

[11]    As the requirements of s 473DD are not met in regard to the new claim and the country information reports, I cannot consider them.

17    It will be seen that in the above passage the IAA identified two kinds of “new information” for the purposes of s 473DD – additional country information and a new claim that the referred applicant (now the appellant) would be imputed as an LTTE sympathiser because of his association with the TNA (at [5]). It will also be seen that, in substance, the IAA held that the bar in s 473DD which prevented it from considering new information applied here because the referred applicant had not satisfied it that the criteria for lifting the bar in s 473DD had been met. The IAA concluded that no issues had been raised that warranted it inviting the referred applicant to provide new information at the interview or otherwise (at [12]).

IAA’s factual findings

18    The IAA accepted that the referred applicant was a Tamil, who had been born and mostly lived in the Eastern Province of Sri Lanka (at [14]). It went on to refer to the applicant’s claims about the TNA politician and the incident that led him to leave Sri Lanka.

19    The IAA did not accept that the applicant was a supporter or volunteer of the TNA politician (Y), or that he had “any involvement with the politician or the activities of the TNA” (at [25]). In coming to this conclusion, the IAA referred to various inconsistencies in the referred applicant’s evidence. With respect to the claim that the referred applicant had stayed at the TNA politician’s house, the IAA said (at [17]):

The applicant claims to have had an association with [Y], the president of a Hindu youth organisation and a TNA politician. … After he finished school the applicant claims he supported [Y] by attending meetings of the TNA with the politician. The applicant’s statutory declaration indicates when he was at school he would visit [Y]’s house a lot after school and on weekends, and in 2012 after he finished school he would sometimes … stay with [Y] at his house. At the arrival interview the applicant indicated he lived and studied with [Y] for two years between 2010 and 2012, however in the SHEV application he indicates he stayed at [Y’s] address from June 2012 till September 2012. In his statutory declaration the applicant corrected his address history and indicated he only lived with [Y] for three months in 2012. …

20    With respect to the referred applicant’s claim that he was threatened by two men in civilian clothing who told him to stop supporting the TNA politician, the IAA said (at [18]):

… At the arrival interview the applicant indicated he was threatened by the TMVP, a paramilitary and political group, and was told he should not be with the TNA anymore or they will kidnap and kill him. In the statutory declaration submitted with the SHEV application the applicant indicates, in addition to being threatened, he was beaten by the men.

21    The IAA also addressed the letter of 11 December 2012 relied on by the applicant in support of his account of his relationship with the TNA politician. The IAA stated that it found the letter inconsistent with the applicant’s evidence that he completed his schooling in 2012 and the threats against him began thereafter (at [21]).

22    In particular, the IAA said (at [21]):

The applicant provided a letter from [Y], dated 11 December 2012. The letter states that the applicant recently encountered threats and problems from armed groups operating in alliance with the government, and that the applicant was his volunteer who worked for the victory of the Federal Party during the recent elections. Further, it indicates the applicant had interrupted his studies because of continuous searching and had been in hiding. I have a number of problems with this letter and with the applicant’s claimed association with [Y]. The letter is inconsistent with the applicant’s evidence that he completed his schooling in 2012 and after this the problems started. In addition, although the letter describes the applicant as [Y’s] volunteer, it is highly generalised and uninformative, providing no details of the nature or length of the applicant’s association with him, nor details of any activities the applicant was involved in to support him or the TNA. The applicant claims he knew [Y] since at least 2008, and stayed in [Y’s] home … including for a period of at least two months in 2012, however [Y’s] letter fails to mention this significant association with the applicant, which leads me to doubt the veracity of both the letter and the applicant’s evidence. At the SHEV interview the applicant indicated that because he knew [Y] he went to help, he travelled with [Y], attended meetings and listened. Despite this, the applicant indicated he knew nothing about politics, and I find it implausible that if he had been involved with [Y] as he claims, he would be unable to provide any information about the TNA, other than what its initials stand for.

23    The IAA then addressed the referred applicant’s claim that he had been attacked, and that armed men had been searching for him, in the context of the evidence provided (at [23]–[24]):

The complaints to police made by the applicant’s father suggest the applicant was an avid volunteer involved actively in the election campaign, and that the armed men have been frequently looking for the applicant. These statements are inconsistent with the applicant’s evidence that armed men attended his family home on 2 occasions in 2012 and a further occasion in 2016, and also inconsistent with the applicant’s claimed level of involvement with [Y], that he merely attended meetings and travelled with [Y], and he knows nothing about politics. In addition, I note that at the SHEV interview, on 16 August 2017, the applicant indicated there had been no further visits to his family by groups searching for the applicant since the complaint made to police in April 2016. I find it implausible that some three and a half years after the applicant departed Sri Lanka armed groups continued to search for the applicant. I do not consider the complaints to police or the HRCSL are reliable evidence regarding the applicant’s involvement with the TNA, or regarding the attendance of armed men at his family’s home, and I consider the reports have most likely been created to further the applicant’s claim for protection, rather than being an accurate description of any factual matter.

Although I am prepared to accept the letter from [Y], and the police and HRCSL records are genuine documents, I do not consider them to be reliable regarding the applicant’s involvement with [Y] or the TNA, or any matters contained therein, and I give them little weight. These documents do not overcome the serious doubts I have regarding the applicant’s claimed involvement with the TNA, and the claim that he and his family were threatened as a result of this involvement.

24    As the IAA did not accept that the applicant had any involvement supporting the TNA politician that would bring him adverse attention, the IAA also did not accept that the applicant or his family were threatened as claimed, or that armed groups were searching for the applicant because of his association with the TNA politician or for any other reason (at [26]).

Well-founded fear of persecution

25    Under this heading, the IAA considered the referred applicant’s claims to fear persecution under the following subheadings.

Tamil ethnicity, originating from the Eastern Province, imputed LTTE links

26    The IAA considered whether the applicant’s Tamil ethnicity would lead to him being imputed with LTTE links, on the basis the delegate had considered this question (at [31]).

27    The IAA referred to country information from various sources to the effect that Tamil ethnicity alone does not of itself give rise to a well-founded fear of persecution or serious harm warranting international protection (at [33]–[39]). The IAA noted that the applicant himself had not provided evidence that he had suffered any harm because of his Tamil ethnicity; that he denied that he or his family were associated with the LTTE; and that “[o]ther than the claim that he was threatened by armed men regarding his support for the TNA, the applicant has not claimed he suffered any harm as a result of his Tamil ethnicity, or because of a real or imputed association with the LTTE” (at [40]).

28    The IAA concluded that it was not satisfied that there was a real chance the applicant would suffer harm as a result of his Tamil ethnicity, “residence in the Eastern province, due to any actual or imputed association with the LTTE, or any combination of these factors” (at [41]).

TNA association and actual or imputed political opinion

29    The IAA repeated its finding that it did not accept that the applicant has been a supporter or had any association with the TNA politician or the TNA, adding it was not therefore satisfied that “he would face a real chance of harm on that basis if returned to Sri Lanka, whether from the Karuna or Pillayan groups, the TMVP, or the Sri Lankan authorities, or otherwise” (at [43]).

30    Further, the IAA said (at [44]):

Even if, contrary to my finding, the applicant was involved with [Y] and the TNA as claimed, I am not satisfied the low level involvement described by the applicant was such that he or his family came to the adverse attention of the Sri Lankan authorities, unarmed groups, members of opposing political parties, or any other person. Nor do I consider that such low level involvement would place the applicant at risk now or in the reasonably foreseeable future.

31    In support of the above, the IAA referred to country information indicating that the political situation has improved in Sri Lanka since the 2012 elections; that political parties operated freely; and that this freedom applies to “high-profile elected representatives and office holders and low-profile party members, supporters and volunteers” (at [45]). The IAA also noted that the delegate was “unable to locate any recent country information of the systematic targeting of TNA members, supporters or employees” (at [46]). The IAA concluded that it was not satisfied the applicant faces a real chance of harm on account of any actual or imputed TNA involvement prior to leaving Sri Lanka, now or in the foreseeable future (at [47]).

Illegal departure/Returning asylum seeker

32    Under this heading, the IAA accepted the applicant’s evidence that he had departed Sri Lanka by boat without the knowledge of the Sri Lankan authorities and that he would be considered a returning asylum seeker who departed Sri Lanka illegally (at [48]). The IAA also accepted that some asylum seekers with actual or perceived links to the LTTE may be at risk of harm during arrival processing (at [55]). As it did not consider that the applicant was of any adverse interest to the Sri Lankan authorities, the IAA was not satisfied that there is a real chance the applicant would “be at risk of adverse attention from the Sri Lankan authorities on arrival in Sri Lanka because of any actual or perceived link to the LTTE or the TNA, or for any other reason” (at [55]). It was also not satisfied that there was a real chance that the applicant would suffer serious harm on his return to Sri Lanka as a returned asylum seeker (at [56]).

Conclusion

33    By way of conclusion, the IAA stated that it was not satisfied there was a real chance the referred applicant would face serious harm from the Sri Lankan authorities or any other persons on his return or in the reasonably foreseeable future, and thus, that he did not meet the requirements for the definition of refugee in s 5H(1), or s 36(2)(a) of the Migration Act (at [60]–[61]). For substantially the same reasons, the IAA also did not consider that the complementary protection criteria in s 36(2)(aa) of the Migration Act had been satisfied (at [62]–[70].)

The Federal Circuit Court proceeding

34    By an application filed on 14 December 2017, the appellant sought judicial review of the IAA’s decision. He later relied on an amended application filed on 17 April 2019. The grounds set out in that application were as follows (FMA17 FCCA at [55]):

(1)    The Authority fell into jurisdictional error in not considering relevant considerations, including claims, integers of claims or material questions of fact or information.

PARTICULARS

(a)     The Authority did not consider all the material and information in the Applicant’s submission received by the Authority on or about 3 November 2017 including country information and the claim that because of his work for a TNA member of Parliament, the Applicant may be imputed with a connection to the LTTE. (IAA Decision and Reasons [5]-[11]

(b)    The Authority did not consider whether the Applicant may suffer harm while in detention simply as a person in detention.

(2)     The Authority fell into jurisdictional error in that it did not give procedural fairness to the Applicant.

PARTICULARS

(a)    The Authority did not consider all the material and information in the Applicant’s submission received by the Authority on or about 3 November 2017 including country information and the claim that because of his work for a TNA member of Parliament, the Applicant may be imputed with a connection to the LTTE. (IAA Decision and Reasons [5]-[11])

(b)    The Authority did not give the Applicant an interview. (IAA Decisions and Reasons [12]).

(3)     The Authority fell into jurisdictional error in that it erred in interpreting or applying the law.

PARTICULARS

(a)    The Authority erred in interpreting or applying section 473DD of the Act when it did not consider all the material and information in the Applicant’s submission received by the Authority on or about 3 November 2017 including country information and the claim that because of his work for a TNA member of Parliament, the Applicant may be imputed with a connection to the LTTE. (IAA Decision and Reasons [5]-[11])

(b)     The Authority erred in interpreting or applying section 473DC of the Act when it did not give the Applicant an interview. (IAA Decision and Reasons [12]).

(4)     The Authority fell into jurisdictional error in that it did not exercise its powers lawfully.

PARTICULARS

(a)     The Authority failed to make inquiries, and in particular failed to invite or to take evidence from the Applicant and from the Member of Parliament about the claims the Applicant had assisted the MP and the consequences of that involvement. (Authority’s Decision and Reasons [24]-[26])

(5)    The Authority fell into jurisdictional error in that it was unreasonable or made findings without logically probative material.

PARTICULARS

(a)    The Applicant refers to and repeats the Particulars to the other Grounds herein.

35    Ground 1(b) (mistakenly referred to as ground 1(a) in the reasons of the primary judge at [55] footnote 32) was abandoned in the Federal Circuit Court (and ultimately also abandoned before this Court): see [42] below.

36    The appellant was represented by counsel at a hearing on 14 May 2019. The primary judge dismissed the appellant’s application on 30 May 2019. His Honour summarised his reasons as follows (at [2]):

… I have concluded that the Authority was not required to accede to the applicant’s request that he should be interviewed by it or that it was obliged to make inquiries of a Sri Lankan parliamentarian as to the efficacy of the matters contained in a letter of support that he had written in support of the applicant. I have further concluded that the Authority was not required to consider separately a new claim which was advanced by the applicant and that [] such claim as was pressed before me was subsumed in a finding of greater generality.

37    In the Federal Circuit Court, counsel for the applicant (the appellant in these proceedings) framed his submissions in two parts (at [56]), and the Minister did the same in submissions in this Court. In “Part A”, the applicant addressed the grounds of review relating to the IAA’s failure to accede to his request for an interview and to seek information from the TNA politician (grounds 2(b), 3(b), 4(a) and 5(a)) (at [57]). In “Part B”, the applicant reformulated the same essential facts as a failure to consider relevant considerations, or an integer of a claim or information (grounds 1(a), 2(a), 3(a) and 5(a)) (at [133]), focussing on his supposed new claim that because of his work for the TNA politician, he might be imputed with a connection to the LTTE (at [137]).

38    In support of grounds 2(b) and 3(b), counsel for the applicant contended that the IAA did not afford him “procedural fairness” and acted legally unreasonably by not providing him with an interview. As to this, the primary judge held that, in light of the scheme created by Pt 7AA of the Migration Act, it was preferable to examine the failure to provide an interview in terms of legal unreasonableness, rather than procedural fairness (at [74]). The primary judge held that “nothing was disclosed by the applicant’s submissions which elevated the Authority’s failure to interview the applicant to the level of legal unreasonableness and that this [was] so, notwithstanding that the Authority had disbelieved some of the applicant’s claims which had been accepted by the delegate” (at [118]).

39    The primary judge rejected the applicant’s submissions in support of grounds 4(a) and 5(a) to the effect that the IAA acted in a legally unreasonable way in not contacting the TNA politician, Y. In summary, the primary judge distinguished the case before him from the authorities to which he was referred, on the basis that those authorities concerned Pt 7 review by the Administrative Appeals Tribunal, rather than Pt 7AA by the IAA (at [123]–[125]). His Honour also noted that the IAA had stated further that it was not satisfied that the low-level involvement described by the applicant was such as to engage Australia’s protection obligations; and that, even if the IAA had contacted the TNA politician and been satisfied the appellant had the involvement as alleged, the IAA’s decision would have been supported by alternative findings, including that the applicant had such a low profile that meant that he did not have a well-founded fear of persecution (at [130]–[131]).

40    Regarding the failure to consider the country information included in the 3 November 2017 submission, the primary judge held that the IAA “was entitled to be satisfied that no exceptional circumstances were shown”, for the purposes of s 473DD(a) and that the applicant did not satisfy s 473DD(b)(i). No relevant error was therefore shown in the IAA’s failure to consider the further country information (at [138]).

41    Regarding the “new claim”, the primary judge did not accept that the applicant had expressly claimed that he may be imputed with LTTE links because of his work for the TNA politician and that “such a claim was clearly apparent on the face of the material before the delegate and the Authority” (at [145]). The primary judge rejected the applicant’s contention that the IAA should have considered this claim was “credible personal information” for the purposes of s 473DD(b)(ii), noting that there was no such indication in the 3 November 2017 submission or the applicant’s grounds of review. In any event, the primary judge held that the claim could not ultimately succeed, given that the IAA did not accept that the applicant had any involvement with the TNA (at [146]–[147]). His Honour accepted the Minister’s submission that “the further claim … was subsumed in that critical finding” (at [148]).

Proceeding in this Court

42    On 21 June 2019, the appellant filed a notice of appeal from the judgment of the Federal Circuit Court. The grounds of appeal were as follows:

The primary judge erred by failing to consider the following:

1.     The Authority fell into jurisdictional error in not considering relevant considerations, including claims, integers of claims or material questions of fact or information.

Particulars

(a)    The Authority did not consider all the material and information in the Appellant’s submission received by the Authority on or about 3 November 2017 including country information and the claim that because of his work for TNA member of Parliament, the Appellant may be imputed with a connection to the LTTE (IAA Decision and Reasons [5]-[11]).

(b)    The Authority did not consider whether the Appellant may suffer harm while in detention, simply as a person in detention.

2.     The Authority fell into jurisdiction[al] error as they did not give procedural fairness to the Appellant.

                                                                                  Particulars

(a)     The Authority did not consider all the material and information in the Appellant’s submission received by the Authority on or about 3 November 2017 including country information and the claim that because of his work with a TNA member of Parliament, the Appellant [m]ay be imputed with a connection to the LTTE (IAA Decision and Reasons [5]-[11]).

(b)    The Authority did not give the Appellant an interview (IAA Decision and Reasons [12]).

3.     The Authority fell into jurisdictional error in that it erred in interpreting or applying the law.

                                                                                  Particulars

(a)     The Authority erred in interpreting or applying section 473DD of the Act when it did not consider all the material and information in the Appellant’s submission received by the Authority on or before 3 November 2017 including country information and the claim that because of his work for a TNA member of Parliament, the Appellant may be imputed with a connection to the LTTE (IAA Decision and Reasons [5]-[11]).

(b)    The Authority erred in interpreting or applying section 473[DC] of the Act when it did not give the Appellant an interview (IAA Decision and Reasons [12]).

4.    The Authority fell into jurisdictional error in that it did not exercise its powers lawfully.

                                                                                  Particulars

(a)     The Authority failed to make inquiries, and in particular failed to invite or take evidence from the Appellant and from the Member of Parliament about the claims the Appellant had assisted the MP and the consequence of that involvement (Authority’s Decision and Reasons [24] – [26].

5.     The Authority fell into jurisdictional error in that it was unreasonable or made findings without logically probative material.

                                                                                  Particulars

(a)    The Appellant refers to and repeats the Particulars to the other Grounds herein.

43    Plainly enough, these grounds of appeal were effectively the same as the grounds of review considered by the Federal Circuit Court: see [36] above. The appellant confirmed at the hearing in this Court that, as in the Federal Circuit Court, he did not seek to rely on ground 1(b) above. The Minister and the Court treated the appellant’s complaint that “[t]he primary judge erred by failing to consider” as in fact a complaint that the primary judge had erred in his determination of the relevant matters, it being abundantly clear his Honour had in fact considered them all.

Parties’ submissions

44    The Minister filed written submissions prior to the hearing dated 21 January 2020 and submissions after the hearing dated 5 February 2020 and 20 April 2021. The appellant did not file written submissions prior to the hearing. He appeared at the hearing without legal representation, assisted only by an interpreter. He made very brief submissions at the hearing addressed to the IAA’s alleged legal unreasonableness in its consideration of the police complaint report evidence, as discussed below. After the hearing, however, the appellant filed written submissions dated 10 February 2020, to which reference is made below and certain other submissions, also mentioned below.

45    It is convenient to commence with the Minister’s written submissions filed before the appeal and the submissions made on his behalf at the hearing of the appeal.

46    With respect to grounds 2(b), 3(b), 4(a) and 5(a), which concerned the failure to invite the appellant to an interview or make enquiries of the TNA politician, the Minister relied mostly on the reasons of the primary judge, submitting that his Honour was correct to: (1) analyse the complaint about the failure to interview the appellant through the lens of legal unreasonableness, rather than procedural fairness; (2) observe that the IAA had considered the appellant’s request for an interview; (3) find that nothing in the IAA’s failure to interview the appellant was sufficient to give rise to legal unreasonableness, notwithstanding that the IAA had disbelieved some of the appellant’s claims which had been accepted by the delegate; and (4) conclude that the failure to obtain information from the TNA politician was not unreasonable where the appellant had made no such request that the IAA make such an inquiry, there was no evidence as to what this would have produced and, in any event, it would not have mattered, given the IAA’s finding that the low level involvement in the TNA alleged by the appellant would be insufficient to place him at future risk of harm.

47    In support of these contentions, the Minister relied on DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12; 258 FCR 551 at [72]-[73], DBE16 v Minister for Immigration and Border Protection [2017] FCA 942 at [40], [43], [58]–[59]; BRZ17 v Minister for Immigration and Border Protection [2019] FCA 677 at [48]-[51]; and Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 83 ALJR 1123; 259 ALR 429. In oral submissions, counsel for the Minister submitted that the Minister relied on DGZ16 and DBE16 for the proposition that “the mere fact that the Authority forms a different, less favourable view of an applicant’s credibility as compared with the delegate is not, without more, a reason that a failure to interview is unreasonable”. In the course of argument, counsel also referred to and distinguished DPI17 v Minister for Home Affairs [2019] FCAFC 43; 269 FCR 134 from this case, on the basis that an assessment of the appellant’s demeanour was not required for the IAA to depart from the delegate’s findings with respect to the appellant’s credibility here and the IAA had not failed to consider whether to exercise the power under s 473DC, as its reasons disclosed it decided not to grant the appellant an interview.

48    Regarding the appellant’s claim that there was an obvious inquiry that the IAA should have addressed to the TNA politician, the Minister relied on SZIAI at [26] as support for the proposition that it was incumbent on the appellant to identify what information that inquiry would have yielded. Counsel submitted that the appellant had not said anything of this kind in the Federal Circuit Court (or this Court).

49    With respect to grounds 1(a), 2(a), 3(a) and 5(a), which concerned the IAA’s failure to consider the country information and the claim that the appellant may be imputed with LTTE links because of his association with the TNA politician, the Minister again relied substantially on the reasons of the primary judge, submitting that it was reasonable for his Honour to find: (1) that there was no unreasonableness in the IAA’s finding that it could not consider the country information under s 473DD; (2) that the claim of imputed LTTE links was subsumed by the IAA’s finding that it did not accept that the appellant had any involvement with the TNA politician or the TNA; and (3) that the claim would inevitably fail in light of the IAA’s finding that the appellant’s account, taken at its highest, would not place him at risk of serious harm.

50    At the hearing, counsel for the Minister submitted that there was no basis for a contention that failure to consider the “new information” in the 3 November 2017 submission was legally unreasonable, noting that the IAA considered that the proposed new country information was “very similar to what was already before the delegate”. Regarding the claim that the appellant would be imputed with an association with the LTTE because of his association with the TNA, which the IAA treated as a new claim and did not expressly consider, counsel submitted that this claim was bound to fail in any event because it was premised on the appellant’s association with the TNA, which the IAA rejected, referencing its reasons at [25] and [42]-[47].

51    At the hearing, counsel for the Minister submitted that the IAA found that the letter from the TNA politician was “genuine” in the sense that it was an authentic document of a politician who had the office he purported to have, but that it was not reliable in that the IAA did not consider the matters detailed in the letter regarding the appellant’s involvement with the TNA were true, referring to the IAA’s reasons at [21]. Counsel submitted that the IAA did not consider the letter to be evidence of any relationship between the appellant and the TNA politician and that, in any event, the IAA found, in its reasons at [44], that even if the appellant had the low level of involvement in the TNA he alleged, the IAA was not satisfied this would place the appellant at risk.

Supplementary submissions addressing police report evidence

52    At the hearing, there was some discussion between the Court and the Minister’s counsel about the IAA’s finding that although the police complaint reports were “genuine documents”, they were not “reliable regarding the applicant’s involvement with [Y] or the TNA” and had “most likely been created to further the applicant’s claim for protection” (reasons at [23]–[24]).

53    In oral submissions at the end of the hearing, the appellant challenged the IAA’s reasoning regarding the police complaint reports on the basis that the first complaint was made 10 days before he left Sri Lanka, and his plans to leave the country had been “sudden”. He submitted that it was therefore implausible that the complaint had been to support his claims for protection, as this course was not in contemplation at the time.

54    In supplementary submissions dated 5 February 2020 filed pursuant to order, the Minister submitted that it was open to the IAA to find that the police complaint reports were genuine documents, but not accurate reports of events that had occurred, as they were made by the appellant’s father to further the appellant’s asylum claims, bearing in mind that the statements made in the first police complaint report by the appellant’s father were inconsistent with the appellant’s own evidence and that the IAA found that the second police complaint report was inherently implausible, given the passage of time. The Minister further submitted that the fact that the appellant’s father made a Human Rights Commission complaint at the same time as he made the first police complaint report was “some evidence that the father apprehended a human rights dimension to the reported conduct and is consistent with both the complaint and the first police report being made with an eye to an asylum claim and there being some level of sophistication”.

55    Subsequent to the hearing, the appellant also filed written submissions dated 10 February 2020 concerning the police complaint reports, in which he submitted that the second police complaint report could not have been made for the purpose of supporting his protection claims, as the complaint had been made a year before his visa application was made. In so far as the appellant required leave to file and rely on these submissions, I would grant such leave.

Further supplementary submissions addressing AUS17

56    After the hearing, the High Court delivered judgment and reasons in AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; 384 ALR 196. The Court granted leave for the parties to file further submissions on the significance of this decision for this appeal. The appellant and the Minister subsequently filed submissions.

57    In supplementary submissions dated 20 April 2021, the Minister submitted that the IAA applied s 473DD in a manner consistent with the High Court’s decision in AUS17 at [11]–[12]. The Minister submitted that the IAA’s findings at [8] and [9] demonstrated that it had regard to both s 473DD(b)(i) and (ii) and impliedly found that they were not satisfied, before turning to consider whether s 473DD(a) was met. The Minister submitted that although the IAA did not consider paragraphs (a) and (b) of s 473DD in the order directed in AUS17, this did not give rise to error, because neither s 473DD(b)(i) or (ii) were met in this case, with the result that the IAA’s consideration of s 473DD(a) was “redundant”. The Minister referred in this context to APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23 at [79] and BXT17 v Minister for Home Affairs [2021] FCAFC 9, both of which sought to apply AUS17.

58    The appellant also made written submissions seeking to be responsive to AUS17 under cover of three emails all dated 22 April 2021, which in one instance included a letter from the appellant’s father.

Consideration

Relevant statutory provisions

59    Division 3 of Pt 7AA of the Migration Act governs the conduct of a review by the IAA of a “fast track reviewable decision”. There is no dispute that the delegate’s decision was a “fast track reviewable decision”.

60    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. Relevantly here, s 473DB sets out the “primary requirement” that the IAA is to review a decision referred to it by considering the review material provided to it by the Secretary under s 473CB without accepting or requesting new information and without interviewing the referred applicant: Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 264 CLR 217 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.

61    Subdivision C of Div 3 provides for exceptions to the general rule that the IAA is not to accept or request new information. Sections 473DC and 473DD are most relevant in this case.

62    Section 473DC is facultative. It is concerned with the circumstance in which the IAA can get (“in the sense of seek out”: Plaintiff M174 at [23]) “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.

63    Section 473DD imposes restrictions on when the IAA can consider new information:

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.

64    In their joint judgment in AUS17, 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).

65    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 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 new information given, or proposed to be given, by the referred applicant: (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].

66    The criterion in s 473DD(a) must always be met before the IAA can consider new information. In Plaintiff M174 at [30], Gageler, Keane and Nettle JJ said:

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”.

67    In AUS17, their Honours also observed at [12], with respect to the two limbs of 473DD:

[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).

68    In pursuing this inquiry, however, the Court is not required to engage in a formulaic consideration of s 473DD(b) and it may be able to infer that (b)(i) and (ii) have been satisfied, even if the precise statutory language of those provisions has not been used: APH17 at [79]. In this context, it is relevant that the IAA’s duty to give reasons under s 473EA does not require it to give reasons for the exercise or non-exercise of a procedural power, such as ss 473DC or 473DD: see BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; 373 ALR 196 at [16].

69    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].

Outcome of the grounds of appeal

Ground 1

70    Ground 1 alleged that the IAA fell into jurisdictional error by failing to consider relevant considerations (particularised as the appellant’s claim that he would be imputed with an LTTE connection because of his work for the TNA politician (the LTTE imputation claim) and the country information in the appellant’s 3 November 2017 submission). It is uncontroversial that a failure to consider a claim or an integer of a claim is capable of constituting jurisdictional error: see, e.g., AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; 261 FCR 503 at [18]. In this case, however, neither the LTTE imputation claim nor the additional country information were before the delegate at the time of the delegate’s decision. By virtue of s 473DB, the IAA’s review was confined to the material provided to it by the Secretary under s 473CB (including the material before the delegate) unless new information was received under s 473DC. Such new information could not be received unless the referred applicant (now the appellant) satisfied the IAA that, with respect to that information, the relevant criteria in s 473DD were met: see [69] above. The IAA was not so satisfied, with the result that, by virtue of s 473DD, it was not open to it to consider the new information, being the LTTE imputation claim and the country information.

71    In any event, the IAA found that, if indeed the appellant was involved with the TNA politician and the TNA, it was not satisfied that his level of involvement was “such that he or his family came to the attention of the Sri Lankan authorities … or any other person”; and did not consider that “such low level involvement would place the applicant at risk now or in the reasonably foreseeable future”. It seems to me that these findings effectively subsumed the appellant’s LTTE imputation claim: see reasons [42]-[47]. Alternatively, as the Minister submitted, the LTTE imputation claim could not succeed as it was premised on the appellant’s account of his association with the TNA politician, which was rejected by the IAA: see reasons at [43].

72    As explained above, particular (b) to ground 1, which asserted that the IAA did not consider whether the appellant would suffer harm as a person in detention, was abandoned at the hearing. In any event, as already noted, the IAA made relatively detailed findings under the heading “Illegal departure/returning asylum seeker” and specifically addressed the detention issue, saying that it did “not consider that a few days of detention would constitute the necessary threat to life or liberty… or would otherwise amount to serious harm for the applicant”.

73    For these reasons ground 1 must fail.

Ground 2

74    By ground 2, the appellant claimed that the IAA fell into jurisdictional error in that it did not give procedural fairness to him. This failure was particularised as the failure to consider the material and information in the 3 November 2017 submission, and the failure to give him an interview.

75    For the reasons already stated, the IAA was unable to consider the material and information in the submission: no denial of procedural fairness could arise because of the IAA’s failure to consider such information and material.

76    Further, there was no denial of procedural fairness on account of the IAA’s failure to invite the appellant to an interview. As already stated, s 473DA(1) provides that Div 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. The requirements of procedural fairness in an IAA review are relevantly governed by the provisions of Div 3 of Pt 7AA.

77    Section 473DB makes it clear beyond doubt that, unless a provision in Pt 7AA provides to the contrary, the IAA is to conduct its review on the basis of the review material provided to it by the Secretary under s 473CB, “without interviewing the referred applicant”: s 473CB(b). As the Minister submitted, the IAA is not ordinarily required to inform the referred applicant of its specific reservations about his or her case and provide an opportunity to respond: see, e.g., DBE16 at [59]; and DGZ16 at [76]. Further, except to the extent that procedural fairness overlaps with legal unreasonableness, “procedural fairness analysis is not the ‘lens’ through which the content of procedural obligations imposed on the Authority in the conduct of a review under Pt 7AA is to be determined”: see BVD17 at [34]. The issue of legal reasonableness is discussed with respect to ground 5.

78    For the reasons stated, ground 2 must fail.

Ground 3

79    By ground 3, the appellant claimed that the IAA fell into jurisdictional in interpreting or applying the law. In particulars, the appellant said that the IAA: (1) erred in its application or interpretation of s 473DD “when it did not consider” the material and information in the 3 November 2017 submission”, including the LTTE imputation claim and the country information discussed in connection with ground 1 above; and (2) erred in interpreting or applying s 473DC when it did not give the appellant an interview.

80    As already stated, within the framework created by Pt 7AA, the IAA ordinarily conducts a review on the basis of the “review material” provided to it by the Secretary under s 473CB: see s 473DB(1). There are only limited circumstances when the IAA can consider “new information”, being information that the IAA considers relevant and that was not before the Minister when the decision to be reviewed was made. In essence, the IAA may consider “new information” supplied by a referred applicant only if it meets the “exceptional circumstances” test in s 473DD(a) and the criteria in either ss 473DD(b)(i) or (ii): see AUS17 [6].

81    In the present case, the IAA’s reasons record at [4] that it had regard to the 3 November 2017 submission to the extent that it engaged in legal argument regarding the delegate’s decision and was “based on information that was before the delegate”. These reasons also record at [5] that it did not have regard to some country information in that submission and the LTTE imputation claim. The IAA stated that it did not consider this claim and the country information because it was not before the delegate and was relevantly “new information” that did not satisfy the conditions in s 473DD.

82    The IAA’s reasons specifically state at [9] that it was not satisfied that “s 473DD(b) was met” since the applicant had not satisfied it that the country information could not have been provided before the delegate’s decision, or that “the [country information] reports contain personal information that may have affected the consideration of the claim”.

83    At [10], the IAA specifically stated that the LTTE imputation claim was not made “during the arrival interview, in his statutory declaration, or during the SHEV interview” although the referred applicant was given “ample opportunity” to make the claim. The IAA went on to state that the “applicant has not satisfied [it] the information could not have been provided before the delegate’s decision”, and that the new claim did not refer to “personal information of the applicant that was not previously known”, concluding that it was “therefore not satisfied s 473DD(b) was met”.

84    The IAA also specifically found at [9] and [10] that there were no exceptional circumstances to justify considering either the country information reports or the LTTE imputation claim. Regarding the country information, the IAA recorded at [6] the claims of the referred applicant’s representative that “because the applicant was unrepresented before the delegate he was limited in presenting his claims, and also that the applicant was unaware his application was referred to the IAA …”. At [7], the IAA rejected these claims, concluding that “even if the applicant was not aware of the referral to the IAA, this has no bearing on why he could not have provided the information to the delegate prior to her decision” and further, at [8], that “[t]he additional country information reports the applicant now requests be considered were published well before the delegate’s decision, the content is similar to other country information considered by the delegate, and contain no information personal to the applicant”. Regarding the referred applicant’s LTTE imputation claim, the IAA stated at [10] that his failure to make the claim on the earlier occasions to which it referred (see [83] above) led it “to believe that he does not genuinely hold the belief that he will be imputed a connection to the LTTE on the basis of his purported association with the TNA, or for any other reason”.

85    I interpolate here that on the appeal the appellant did not contest that the LTTE imputation claim was in fact a new claim, in the sense that it had not been made prior to the delegate’s decision, although the issue had been the subject of discussion in the Federal Circuit Court.

86    The IAA’s reasons disclose that it properly applied s 473DD(b) in respect of the “new information” (being the LTTE imputation claim and additional country information). As already stated, the IAA was not required to give comprehensive reasons for its determination regarding its exercise of the power under s 473DD. Nonetheless, it is clear from its analysis at [4]–[10] that the IAA directed its attention to s 473DD(b)(i) and applied that provision when it found at [7], [9] and [10] that the information could have been provided before the Ministerial delegate’s decision. The IAA also expressly applied s 473DD(b)(ii) in finding that the country information reports did not contain, relevantly, “personal information which was not previously known”. It also expressly considered and applied s 473DD(a) at [9] and [10] when it found that there were no exceptional circumstances to justify considering either the additional country information or the LTTE imputation claim.

87    There is nothing in its consideration that is indicative of a misinterpretation of these provisions, save that the IAA did not consider paragraphs (a) and (b) of s 473DD in the order approved in AUS17. Nothing turns here on this last-mentioned matter. As the Minister submitted, the applicant’s failure to satisfy the IAA that either s 473DD(b)(i) or (ii) had been met meant that the IAA’s consideration of s 473DD(a) was redundant: irrespective of s 473DD(a), the requirements of s 473DD were not satisfied. In this circumstance, the IAA was prevented by s 473DD from considering the LTTE imputation claim and the additional country information in the appellant’s 3 November 2017 submission for the purposes of its review.

88    Further, there is nothing to support the appellant’s claim that the IAA misinterpreted or misapplied s 473DC because “it did not give the appellant an interview”. As the IAA’s reasons stated, under s 473DC, the IAA was under no duty to provide the appellant with an interview. The IAA specifically addressed the appellant’s request for an interview, stating that “in this case, the applicant has raised no issues that would warrant the IAA issuing an invitation to provide new information, whether at an interview or otherwise” (at [12]). This statement is not indicative of error.

89    For these reasons, ground 3 cannot succeed.

Ground 4

90    By ground 4, the appellant alleged that the IAA did not exercise its powers lawfully in that it failed to invite evidence from the appellant or from the TNA politician about the appellant’s claims that he assisted the politician and the consequence of that involvement with the politician.

91    Section 473DC imposed no duty on the IAA to get information from the appellant or the TNA politician about the appellant’s association with the politician. Indeed, s 473DC(2) specifically provided that the IAA “does not have a duty to get, request or accept” any new information whether it is “requested to do so by a referred applicant or by any other person, or in any other circumstances”.

92    Of course, the IAA would relevantly err in its non-exercise of procedural powers, such as those conferred by s 473DC, if its failure to consider exercising those powers or its determination respecting their exercise was legally unreasonable. This issue is specifically raised by ground 5, discussed below.

93    For the reasons stated, ground 4 cannot succeed.

Ground 5

94    By ground 5, the appellant claimed that the IAA fell into jurisdictional error in that it acted unreasonably or made findings without logically probative material. The particulars to this ground were non-specific, being “the Particulars to the other Grounds”. The particulars to grounds 1 to 4 indicated that the following issues potentially arose: whether the decision not to invite the appellant to an interview pursuant to s 473DC was legally unreasonable; whether the IAA unreasonably failed to consider whether to exercise the power under s 473DC to get new information from the TNA politician; and, having regard to the discussion at the hearing, whether the IAA’s findings with respect to the police complaint reports were unreasonable or made without logically probative material.

95    Whether the IAA’s failure to exercise the power in s 473DC to get new information was outside the bounds of reasonableness has fallen for consideration in a number of cases of this Court, including DPI17 where the Full Court held that the IAA’s failure to consider whether to exercise its power under s 473DC to get new information in respect of the referred applicant’s claimed sexual assaults was “legally unreasonable because, in the circumstances, the failure was unreasonable or plainly unjust“: DPI17 at [45]. In that case, contrary to the delegate, the IAA made adverse credit findings concerning the appellant’s claims to have been sexually assaulted by officials in his country of origin. The Full Court held that, in the circumstances of that case, it was not open to the IAA to make a different assessment without some “independent evidentiary basis to support such a determination”: see DPI17 at [46] and [115].

96    The present case is comparable to DPI17 only in so far as the IAA departed from the delegate’s findings, in this case with respect to the appellant’s involvement with the TNA politician. The delegate accepted that the appellant had an involvement with the TNA politician and that this involvement may have caused him to be targeted by groups opposed to the TNA, such as the Karuna group and the Pillayan group. The IAA did not accept that the referred applicant was a supporter of or volunteer for the TNA politician or that he had any involvement with the politician or the activities of the TNA: see reasons at [25].

97    In DPI17 the Full Court held that, in the circumstances of that case, it was legally unreasonable for the IAA not to consider whether to exercise its powers under s 473DC before making a finding different from the delegate. In this case, as already stated at [88] above, the IAA did in fact consider whether to exercise its power under s 473DC to invite the appellant to an interview, and determined not to do so.

98    The present case is distinguishable from DPI17 for other reasons too. In DPI17, the Full Court relevantly stated that, as the IAA would have been aware, the delegate’s assessment of the appellant’s claim that he had been tortured and assaulted was “based primarily on the delegate’s assessment of the appellant’s demeanour and credibility”, and that, for this reason, it was not open to the IAA to make a different assessment without some “independent evidentiary basis to support such a determination”: DPI17 at [46], [115]. It should also be borne in mind that, in that case, the IAA made findings that differed from the delegate principally on the basis of the inconsistencies in the appellant’s evidence, which the delegate had previously described as inconsequential.

99    In the present case, there is nothing to indicate that the delegate placed any particular reliance on the appellant’s demeanour to support his finding that the appellant may have been targeted by other political groups (such as the Karuna and Pillayan Groups) because of his involvement with the TNA politician. Further, the IAA explained its departure from the delegate’s finding by reference to considerations that had not been identified or addressed by the delegate. Thus, the IAA identified various inconsistencies in the appellant’s evidence regarding the period of time he had spent living with the TNA politician and his lack of knowledge about the TNA, despite purporting to have attended meetings of the TNA with the politician (at [17]). The IAA also explained the basis for its conclusion that the letter from the TNA politician, on which the appellant relied, was not reliable regarding the applicant’s involvement, with the politician or the TNA, including because of inconsistencies between the letter and the appellant’s evidence, its generalised and uninformative nature and its failure to mention a significant association with the applicant (at [21]). Having identified these evidentiary issues independently of the delegate, it was open to the IAA to reject the appellant’s account of his association with the TNA politician and the TNA. In these circumstances, the appellant has failed to show that it was legally unreasonable for the IAA to decline to invite him to an interview.

100    As stated at [68] above, the IAA is not required to give reasons for the exercise or non-exercise of a procedural power such as that conferred by s 473DC(1). Its reasons cannot be relied on to support an inference that it did not consider exercising the power under s 473DC to get new information from the TNA politician. Further, there is no demonstrable basis to justify the conclusion that it was legally unreasonable for the IAA not to exercise its power to get new information from the TNA politician, bearing in mind that: (1) the IAA had identified a sufficient evidentiary basis to depart from the delegate’s finding that the appellant was a supporter of the TNA politician and involved in the activities of the TNA; and (2) the appellant’s representatives had neither requested the IAA to make inquiries of the TNA politician nor indicated what might usefully result from such an inquiry: compare SZIAI at [26].

101    As indicated above, an issue arose at the hearing as to whether the IAA’s findings with respect to the police complaint reports were unreasonable or made without logically probative material. Ultimately, it does not seem to me that the IAA’s finding that these reports were “genuine” but not “reliable” documents and “most likely created to further the applicant’s claims for protection” was legally unreasonable or made without probative evidence. The IAA supported its conclusion about these documents on the basis that the statements that the appellant’s father reportedly made in his recorded complaints were inconsistent with the appellant’s evidence about the occasions on which armed men had been looking for him and his level of involvement with the TNA (at [23]). The IAA identified that the appellant’s father’s complaint in the second report was inconsistent with information given in the appellant’s SHEV interview concerning further visits to his family by groups searching for the appellant (at [23]). Also with respect to the second police complaint report, the IAA found “it implausible that some three and a half years after the applicant departed Sri Lanka armed groups continued to search for the applicant” (at [23]). These observations were made in the context of the IAA’s “serious doubts” regarding the appellant’s claimed involvement with the TNA, and the claim that he and his family were threatened as a result (at [24]). It seems to me that, having regard to these matters, it was open to the IAA, acting reasonably, to conclude that the police complaint reports, though genuine reports of the appellant’s father’s complaints to the police, were not reliable evidence of events that had occurred, such that the IAA was entitled to afford them little weight (at [24]).

102    For the reasons stated, ground 5 does not succeed.

Disposition

103    For the reasons stated, none of the appellant’s grounds are made out. The appeal must therefore be dismissed, with costs.

Associate:

Dated:    5 May 2021