Federal Court of Australia

AEX19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1069

ORDERS

THE COURT ORDERS THAT:

1.    Leave be granted to the appellant to rely on Ground 1A of the further amended notice of appeal.

2.    The appeal be allowed.

3.    Order 1 made by the Federal Circuit Court of Australia on 18 September 2020 in proceeding ADG 18 of 2019 be set aside.

4.    A writ of certiorari issue to quash the decision of the second respondent made on 2 January 2019 to affirm the decision of the delegate of the first respondent not to grant the appellant a protection visa.

5.    A writ of mandamus issue to direct the second respondent, differently constituted, to conduct its review of the fast track reviewable decision referred to it under s 473CA of the Migration Act 1958 (Cth) in respect of the appellant, according to law.

6.    The first respondent pay the costs of this appeal.

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

REASONS FOR JUDGMENT

YATES J:

Introduction

1    The appellant appeals from a judgment of the Federal Circuit Court of Australia (the Federal Circuit Court) which dismissed the appellant’s application for judicial review of a decision of the second respondent, the Immigration Assessment Authority (the IAA). The IAA’s decision affirmed a decision of a delegate of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister), not to grant the appellant a protection visa (specifically, a Safe Haven Enterprise visa (SHEV)).

2    The appellant claims to be a national of Sri Lanka. He arrived in Australia on 18 October 2012 as an unauthorised maritime arrival. He applied for a SHEV on 6 July 2016. His application was refused by a delegate of the Minister on 19 January 2017.

3    The delegate’s decision was referred to the IAA. On 7 March 2017, the IAA affirmed the delegate’s decision. However, on 31 October 2018, the Federal Circuit Court quashed the decision by consent, and the matter was remitted to the IAA, differently constituted, for redetermination.

4    In the course of the redetermination, the appellant submitted new information to the IAA, some of which the IAA considered, some of which it did not. The redetermination by the IAA is the subject of the judgment in the judicial review proceedings from which the present appeal is brought.

The appeal

5    As originally filed, the appellant’s notice of appeal contained two grounds. These grounds are no longer pressed. The appellant now seeks to raise, as his sole grounds of appeal, two new grounds. The two new grounds raise contentions which the appellant did not advance in the proceeding below. On 29 June 2021, I granted leave to the appellant to file a further amended notice of appeal. However, the appellant still requires leave to rely on the new grounds he wishes to pursue. The Minister opposes leave being granted.

6    By way of summary, the appellant seeks to contend that the IAA failed to correctly apply s 473DD of the Migration Act 1958 (Cth) (the Act) conformably with AUS17 v Minister for Immigration and Border Protection (2020) HCA 37; 384 ALR 196 (AUS17). The appellant refers to this as Ground 1A.

7    The appellant also seeks to contend that the IAA treated certain country information (a particular DFAT report) as determinative of the review it was required to carry out, and thereby failed to exercise its jurisdiction. The gravamen of this contention, which the appellant refers to as Ground 2A, is that the IAA attributed to this information an a priori superior status and, in doing so, fettered itself from conducting a proper review.

8    It is convenient to commence by exploring the substance of the proposed grounds of appeal before determining whether leave should be granted to the appellant to rely on them. The parties accept that consideration of the merits of the proposed grounds is relevant, although not determinative, of whether the requisite leave should be granted.

Ground 1A

Relevant law

9    Section 473CC of the Act requires the IAA to review a “fast track reviewable decision”. The decision before the IAA, relevant to this appeal, was a fast track reviewable decision. Section 473DB requires the IAA to do this by considering “review material” provided to it under s 473CB of the Act, without accepting or requesting new information, save to the extent that the IAA “gets” new information under s 473DC of the Act, which it can “consider” provided the requirements of s 473DD are met.

10    Section 473DD provides:

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.

11    In AUS17, the plurality noted that the criteria under s 473DD that must be met before “new information” can be “considered” by the IAA will depend on the provenance of that information. For example, new information obtained from a referred applicant, such as the appellant, must meet one of the criteria specified in s 473DD(b). However, all new information, regardless of its provenance, must meet the criterion of “exceptional circumstances”, as stipulated in s 473DD(a). As to this criterion, the plurality in AUS17 reasoned (at [10]) that s 473DD “would be at war with itself” if, in respect of new information provided by a referred applicant, the criterion of “exceptional circumstances” in s 473DD(a) could be considered by ignoring the separate criteria specified in s 473DD(b).

12    As to this, the plurality said:

[11]     Logic and policy therefore 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). If neither of the criteria specified in s 473DD(b)(i) and s 473DD(b)(ii) is met, the Authority is prohibited from taking the new information into account in making its decision on the review. Further assessment of the new information against the criterion specified in s 473DD(a) is redundant. If either the criterion specified in s 473DD(b)(i) or the criterion specified in s 473DD(b)(ii) is met, that is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a). If both the criterion specified in s 473DD(b)(i) and the criterion specified in s 473DD(b)(ii) are met, that too is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a) and which must heighten the prospect of that criterion being met.

13    The plurality continued:

[12]     The result, as has been recognised by the Federal Court in numerous other cases, is that the 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). The nature of the non-performance of the procedural duty in such a case is not inaccurately characterised as a failure to take account of a mandatory relevant consideration in the purported application of the criterion in s 473DD(a).

    [footnotes omitted]

The IAA’s reasons

14    It is appropriate to refer to some particular aspects of the IAA’s reasons which inform the basis on which the appellant seeks to rely on Ground 1A.

15    At [4] – [11], the IAA identified the information that was before it. This included (what the IAA called) the appellant’s “first IAA submission”—a reference to submissions and materials provided to the IAA by the appellant on 9 February 2017, after the delegate’s decision had been made. The IAA dealt with this material at [5] – [8] of its reasons.

16    At [5], the IAA referred to information provided by the appellant concerning his father’s mental condition—Bipolar Affective Disorder (BAD). The information included a medical report dated 11 June 2009. The IAA noted that, at his SHEV interview, the appellant had referred to his father’s medical condition, although not the diagnosis of it, and the fact that he (the appellant) was in possession of a medical report. The IAA said:

5.    … His father’s BAD is relevant to his protection claims and I am satisfied that it is credible personal information which was not previously known and had it been known may have affected the consideration of the applicant’s claims. On this basis I am satisfied that there are exceptional circumstances to justify considering the new information and I have had regard to the report.

17    At [6], the IAA referred to, amongst other things, the appellant’s claims that his sister had been sexually abused by his father; that he had heard that his sister had taken medication to abort her pregnancy; that the appellant tried to kill his father (because he felt responsible for his younger siblings); that he had taken his sister to a convent (on the advice of his uncle); and that he had been receiving death threats from his father because he had tried to protect his sister from his father’s sexual abuse. The IAA said:

6.    … The events the applicant describes all pre-date the delegate’s decision and on that basis could have been provided to the Minister. However, I have taken into account the sensitive nature of the information and that the applicant advised the delegate of the abuse at the SHEV interview, without specifying the type of abuse. Though he had a support person with him at the interview, I am satisfied that due to difficulty in discussing these events and his concern about people in the community becoming aware of the situation, the applicant may have felt constrained in providing complete details at his SHEV interview. The sexual abuse is relevant to his protection claims and I am satisfied that it is credible personal information which was not previously known and had it been known may have affected the consideration of the applicant’s claims. Considering these circumstances and the nature of the information, I am satisfied that there are exceptional circumstances that justify the IAA considering the information.

18    I mention these parts of the IAA’s reasons because they show, unambiguously, that, when deciding whether, under s 473DD of the Act, it was able to consider this new information, the IAA directed its attention to the criteria in s 473DD(b) before determining the requirement of “exceptional circumstances” in s 473DD(a), conformably with the prescription in AUS17.

19    It was in this context that, at [7] – [8] of its reasons, the IAA considered other new information provided as part of the appellant’s first IAA submission. Paragraph [7] is of particular significance to Ground 1A:

7.     In his first IAA submission (made shortly after the delegate made her decision), the applicant stated that his wife is living with a man and he has received death threats from his wife and this man. He stated that he does not have a house or place to live in Sri Lanka and that his son has been taken from him and there is no way he can get access to him. He also claimed that when he was in Sri Lanka he tried to commit suicide because he felt he had no hope and no way of living in that country. The applicant did not make these claims to the Department. At his SHEV interview, the applicant stated that he was aware his wife had been seeing other men and having affairs and that her brother had threatened him and he discussed the future possibility of his son visiting Australia or meeting his son in India. He did not claim that his wife was living with another man and that he had been threatened by that man, or that he had been denied access to his son. He did not state that he had no home to return to in Sri Lanka. At his SHEV interview, the delegate informed the applicant of the importance of putting his claims forward to the Department and warned him that he may not have a further opportunity to do so as the IAA can only accept new information in exceptional circumstances. The delegate questioned the applicant in detail about the situation with his wife, the claimed affairs and the threats from her brother and I am satisfied that the applicant had the opportunity to advance these claims to the Minister. That he did not do so, casts significant doubt on the credibility of these claims and I consider them to be lacking in probative value. The applicant did not provide any details about this man who his wife was apparently living with at the time and who he claims was making threats against him. I am not satisfied that any exceptional circumstances exist that justify considering this new information.

20    At [8], the IAA referred to four documents, only one of which it found to have met the requirements of s 473DD. It is not necessary to say anything more about this paragraph. I simply mention it for completeness.

The appellant’s submissions

21    The appellant submits that [7] of the IAA’s reasons reveals an exclusive focus by it on the appellant’s failure to volunteer the new information referred to in that paragraph, when provided with an opportunity to do so at the appellant’s SHEV interview: the delegate had questioned the appellant in detail about the situation with his wife and her claimed affairs, and the threats from her brother; and the delegate had informed the appellant of the importance of putting forward his claims because he may not have a further opportunity to do so. This, the appellant submits, shows a concern directed to the criteria of s 473DD(b)(i) rather than a meaningful evaluation of the new information against the criteria of s 473DD(b)(ii). Thus, the appellant submits, the IAA committed the very error addressed in AUS17.

22    The appellant submits that this is underscored by a number of features of [7].

23    First, the appellant submits that the IAA’s analysis in [7] stands in stark contrast with its analysis in [5] and [6] of its reasons, where the IAA addressed, in terms, the question of whether the new information referenced in those paragraphs was credible personal information. No reference is made in [7] to the criterion of credible personal information.

24    Secondly, the appellant submits that there is nothing in [7] which could possibly amount to an evaluation, for the purposes of s 473DD(b)(ii), of the new information about his suicide attempt, his dispossession and homelessness, or his alienation from his son—indicating that the IAA was preoccupied with the criterion of s 473DD(b)(i), to the exclusion of the criterion of s 473DD(b)(ii).

25    Thirdly, the IAA’s credibility findings—leading to the conclusion that the appellant’s claims were lacking in probative value—shows that the IAA had applied a test that was foreign to the criterion of s 473DD(b)(ii), which is not to determine whether the new information is credible in the sense of being “true”, but whether it is credible in the sense of “capable of being believed”: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020] FCAFC 159; 171 ALD 477 at [75]. The appellant’s submission is not so much that the IAA applied an incorrect test in purportedly considering the criterion of s 473DD(b)(ii). Rather, his submission is that the IAA’s failure to consider the “capable of being believed” test is indicative of the fact that the IAA simply did not direct its attention to s 473DD)(ii) in considering whether exceptional circumstances existed.

The Minister’s submissions

26    The Minister submits that Ground 1A has no merit; a fair reading of the IAA’s decision reveals that it did not confine its consideration in [7] in the way in which the appellant alleges. The Minister submits that, in addition to considering whether “exceptional circumstances” existed, the IAA considered the substance of both limbs of s 473DD(b).

27    Thus, the IAA’s comment that the appellant’s claims had not been raised earlier, reveals that the IAA was directing its attention to the criteria of s 473DD(b)(i). Similarly, its observation that the appellant had been questioned in detail at his SHEV interview about the situation involving his wife and her alleged affairs, as well as the threats he claimed to have received from his wife’s brother, reveals that the IAA was considering whether the new claims could have been made earlier (relevant to s 473DD(b)(i)) and also the creditability and probative value of the new claims (relevant to s 473DD(b)(ii)). The Minister submits that, consistently with AUS17, the IAA considered these matters before proceeding to consider whether “exceptional circumstances” existed.

28    The Minister submits that AUS17 does not require the IAA to engage in any particular formulaic consideration of s 473DD. It will be sufficient if, in a particular case, the Court can be satisfied that the requisite assessment has been made—in other words, whether the substance of the criteria prescribed by s 473DD(b) has been considered prior to a consideration of whether “exceptional circumstances” exist for the purposes of s 473DD(a): APH 17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23 at [79].

Ground 2A

The IAA’s reasons

29    When identifying the information that was before it, the IAA said:

11.     In this decision, I have obtained new information, namely the latest Department of Foreign Affairs and Trade (DFAT) report concerning Sri Lanka. This report is significantly more recent than the one referred to by the delegate and it is a highly authoritative source. I consider there are exceptional circumstances to justify considering this new information under s.473DD(a).

30    Later, at [17], the IAA said:

17.     In making my findings, I have taken into account the submitted articles regarding the situation between Christians and Buddhists in Sri Lanka. However, in making my assessment I have given greater weight to that of DFAT, because it is recent, highly authoritative and prepared with regard to the current caseload for decision-makers in Australia. It is informed by DFAT’s on the ground knowledge and discussions with a range of sources in Sri Lanka and takes into account relevant and credible open source reports. ...

31    The context for these remarks was the appellant’s claim to fear harm, if returned to Sri Lanka, because he is a practising Christian. At [18], the IAA said:

18.    I accept in Sri Lanka there are some incidents of religious based attacks against Christians but taking into account the country information considered as a whole and his individual circumstances (including that he has not been harmed or discriminated against in the past), I find that the chance that he will face any harm on account of his religion to be remote and not real.

32    At [38], the IAA returned to the DFAT report, saying:

38.     In making my findings, I have given substantial weight to that of DFAT because it is recent, highly authoritative and prepared with regard to the current caseload for decision-makers in Australia. It is informed by DFAT’s on the ground knowledge and discussions with a range of sources in Sri Lanka and takes into account relevant and credible open source reports. …

    [footnotes omitted]

33    The context for these remarks was the appellant’s claim to fear harm, if returned to Sri Lanka, because he would be a failed asylum seeker.

The appellant’s submissions

34    As I have noted, the appellant submits that the IAA attributed the DFAT report with an a priori superior status. The appellant submits that, in doing so, the IAA imposed an improper fetter on the exercise of its jurisdiction, and thereby disabled itself from conducting a proper review.

35    The particulars to Ground 2A appear to raise three separate aspects of this alleged error. The first is that, by giving the DFAT report the status that it did and, correspondingly, by giving less weight to the country information provided by the appellant, the IAA failed to develop the foundation for the speculative task required by ss 36(2)(a) and (aa) of the Act in determining the appellant’s eligibility for a protection visa. The appellant submits that the IAA’s analysis of his proffered country information was given only superficial treatment.

36    The second aspect is that the IAA approached its task with a preconceived view that the publication of information by one arm of the executive government would be “highly authoritative” and, in substance, determinative of the factual issues raised in the review. According to the appellant, this exposes a misconception by the IAA that the appellant had to overcome an “impossibly high” evidentiary presumption.

37    The third aspect is that, by conducting its review in this way, the IAA would raise, in the mind of a neutral observer, the question whether any country information at odds with the DFAT report could have persuaded the IAA to depart from the report’s recommendations.

The Minister’s submissions

38    The Minister submits that Ground 2A lacks sufficient merit to justify the grant of leave.

39    The alleged error, which informs each aspect of this ground, is the IAA’s preference for the information in the DFAT report. The Minister submits that it is well-settled that the choice, assessment, and weight to be given to country information is a matter for the relevant decision-maker: Minister for Immigration & Multicultural Affairs v Indatissa [2001] FCA 181; 64 ALD 1 at [32]; NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10 at [11] – [13]; Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 29; 84 ALD 545; at [8] per Gleeson CJ; and NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195; 156 FCR 419 at [81]. This is an exemplification of the more general principle that it is for the decision-maker to identify the evidence and material it finds relevant to its reasoning, and to give that evidence and material the weight it considers appropriate.

40    The Minister submits that, in the circumstances of this case, the IAA’s expressed preference for the information in the DFAT report shows nothing more than that the IAA made a legitimate and reasonable choice about the material it would rely upon. The reason for this choice was explained in its reasons. The Minister submits that there is nothing in the IAA’s reasons to show that it acted in any way so as to impose an improper fetter on its decision-making, or that the IAA foreclosed its mind in any way.

41    The Minister also submits that, relevant to the question of leave, is the fact that the same ground was raised in two proceedings in the Federal Circuit Court which were pending at the time the appellant commenced his own judicial review proceeding in that court. The Minister submits that it is “clear” that the appellant’s lawyers were alive to this possible ground of judicial review from as early as June 2020, but did not raise it as a ground in the appellant’s proceeding. The Minister submits that no explanation has been given as to why the issue raised by Ground 2A was not identified earlier.

Should leave be granted?

42    Apart from canvassing the merits of each proposed ground, the Minister, quite justifiably, points to a number of other considerations which, in the Minister’s view, tell against leave being granted to rely on Grounds 1A and 2A.

43    The Minister commences with the principle that leave to argue a ground of appeal, not raised below, should only be granted if it is expedient in the interests of justice to do so: VUAX v Minister for Immigration & Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 at [46]. The Minister submits that the interests of justice do not necessarily equate with the interests of an appellant. The interests of justice take into account, also, the interests of other parties to the litigation and the administration of justice more generally.

44    Although the appellant was not legally represented at the hearing before the Federal Circuit Court, he was represented at the time he filed proceedings in that court. The solicitors representing the appellant in the Federal Circuit Court are the solicitors representing the appellant in this appeal. No explanation has been given as to why the grounds on which the appellant now seeks to rely were not raised in the Federal Circuit Court proceeding.

45    Further, the Minister relies on the observation made in Han v Minister for Home Affairs [2019] FCA 331 at [20], and in other cases in this Court, concerning the dangers of undermining the scheme for judicial review and appeals established under the Act, including the prejudice that can be suffered by a respondent in an appeal where a new ground of judicial review is allowed to be raised for the first time. The Minister submits that maintaining the structural integrity of the appellate process is an important factor in deciding whether it is expedient, in the interests of justice, to allow a new ground to be raised.

46    Further, the Minister submits that even if no prejudice is suffered by a respondent, it does not follow, automatically, that leave to raise a new ground will be allowed.

47    I am not persuaded that leave should be granted to the appellant to rely on Ground 2A.

48    I do not think that it can be argued cogently that the IAA gave the DFAT report an a priori superior status over other country information. There is no reason to conclude, contrary to its own statement, that the IAA did not take into account the country information provided by the appellant. The simple fact is that the IAA preferred, and gave greater weight to, the information in the DFAT report. The IAA explained why it did so. For example, considered against the articles submitted by the appellant regarding the situation in Sri Lanka between Christians and Buddhists, the IAA assessed the DFAT report as being: recent; highly authoritative; prepared with regard to the current caseload for decision-makers in Australia; informed by “on the ground knowledge”; informed by discussions with a range of sources in Sri Lanka; and prepared taking into account relevant and credible open source reports. These reasons provide a rational and convincing basis for the IAA to give preference to the DFAT report. They show that the IAA did not simply accord the report an a priori status.

49    Similarly, I do not think it can be argued cogently that, in considering the appellant’s eligibility for a protection visa against the terms of ss 36(2)(a) and (aa), the IAA proceeded on a misconception that, faced with the information in the DFAT report, the appellant was required to overcome a high evidentiary burden to persuade the IAA to a different view. Plainly, the IAA weighed the evidence before it on country information and assessed the information in the DFAT report as having greater probative value. This was within the IAA’s decisional freedom. There is no warrant for interfering with that freedom in the present case.

50    For the same reasons, I do not think it can be argued cogently that the IAA approached its review on the basis of a preconceived view that the information in the DFAT report would have precedence over other country information. I am not persuaded that a neutral observer, reading the IAA’s reasons, would think, on reasonable grounds, that the IAA had a preconceived view that, compared to the country information provided by the appellant, greater weight should be given to the information in the DFAT report.

51    When regard is had to [11] of its reasons, the IAA was doing no more than explaining why exceptional circumstances existed to justify its consideration of the DFAT report—the report was recent and from a highly authoritative source. Properly understood, the IAA was not, at this stage, undertaking an evaluation of the content of the report as it applied to the appellant’s circumstances or as to how the information in the report should be viewed with the other country information before it, which had been provided by the appellant. That evaluation took place in [17] and [18], and at [38], of the reasons. The weighing of the country information was undertaken by the IAA in an entirely orthodox fashion.

52    Therefore, for these reasons alone, I am not persuaded that Ground 2A is of sufficient merit to warrant granting the leave the appellant seeks. In these circumstances, it is unnecessary for me to bring into the balance the other considerations advanced by the Minister as weighing against the granting of leave. It is, however, particularly telling that the point now sought to be raised by Ground 2A had been raised in two other proceedings in the Federal Circuit Court—in which the appellant’s solicitors were acting for other applicants for review—some three months before the appellant’s application for judicial review was heard, and yet no step was taken to raise such a ground in the appellant’s case.

53    As to whether leave should be granted to the appellant to rely on Ground 1A, I accept that the appellant has not provided a satisfactory explanation for not raising this ground earlier when the matter was before the Federal Circuit Court for judicial review. Indeed, as with Ground 2A, the appellant has not proffered any explanation as to why Ground 1A was not raised.

54    I also take into account the unsatisfactory state of affairs that arises when the structure envisaged by the Act for judicial review and appeals is thwarted because insufficient attention is paid by an appellant, at the stage of judicial review, to those grounds of review that are truly viable. An appeal should not be thought of as a bonus opportunity to reformulate a new case for trial after the appellant, as the unsuccessful party at trial, has come to the realisation that the case he or she chose to bring was lacking in merit.

55    Weighed against these considerations are the observations made by the Full Court in CGA15 v Minister for Home Affairs [2019] FCAFC 46 at [36] – [37]:

[36]     There is a particular sensitivity to whether the interests of justice favour a grant of leave in refugee cases, because an adverse decision may have very serious consequences for an appellant: Iyer v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1788 at [22] (Heerey, Moore and Goldberg JJ). The merit of the proposed new ground is an important consideration. As Mortimer J observed in ARK16 v Minister for Immigration and Border Protection [2018] FCA 825 at [25]:

The likely merit of a proposed ground of appeal, in the context of judicial review, will almost invariably be important because it is generally likely in the interests of the administration of justice for this Court to ensure that an administrative decision arguably affected by jurisdictional error is not carried into effect, especially effects which are capable of resulting in a deprivation of liberty, which is the case under the Migration Act for persons who do not hold a valid visa. That is a consequence of upholding and applying the rule of law.

See also SZQBN v Minister for Immigration & Border Protection (2014) 226 FCR 68; [2014] FCA 686 at [55] (Flick J).

[37]     In NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51; [2005] FCAFC 134 at [166] Madgwick J (with whom Conti J agreed) set out a non-exhaustive list of the considerations relevant to a grant of leave, which have been applied in numerous decisions. One consideration weighing against a grant of leave in the present case is that the appellant did not provide an explanation for the failure to raise the proposed new ground before the Federal Circuit Court. While the fact that the appellant had legal representation below can be seen to weigh against a grant of leave, it is not decisive. A new ground of appeal may be allowed even where the proceedings below have been conducted with legal representation and all that can be said by way of explanation was that its significance may not have been apparent to the appellant’s lawyers in the hearing below: Chan v Minister for Immigration and Border Protection [2018] FCA 1323 at [43] (Yates J).

56    In a similar vein, Farrell J observed in FBR18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1620 at [26] – [28] that:

26        … if a proposed new ground were to reveal a strong case that the Authority fell into jurisdictional error in its approach to its task, it is plainly in the broader interests of the administration of justice that that error be identified so that it will not be repeated by the Authority, as well as in the interests of the individual applicant whose personal freedom and safety may rely on decision-makers making their decisions in accordance with law.

27        Where a strong case of jurisdictional error by an administrative decision-maker is revealed, the fact that the Minister’s avenues of appeal may be more limited – though not eliminated – may be accorded less weight in determining where the interests of the due administration of justice lay.

28        In the Court’s view it is necessary for it to consider the merit of the proposed new grounds so that it may determine the applications for leave to appeal and leave to raise new grounds. The Minister relied on Bromwich J’s statement in Han v Minister for Home Affairs at [15] that merit alone is generally not enough for the grant of leave, and the weaker the point, the greater the need for other aspects to be favourable, such as the explanation for not taking it below and prejudice to the opposing party. In the balance, the converse is also true: see VUAX v Minister for Immigration & Multicultural & Indigenous Affairs at [48].

57    As McKerracher J noted in EAT17 v Minister for Home Affairs [2021] FCA 68 at [13], when considering whether leave should be granted to raise, as a ground of appeal, a matter not argued at trial, the threshold condition is that the ground is arguable—meaning that it is not fanciful, illogical, or impermissible, and that it has a level of rationality and a basis in the material before the Court. I am persuaded that Ground 1A achieves, at least, that degree of merit. Indeed, I am satisfied that the ground is strongly arguable and that it is in the interests of justice that leave should be granted to the appellant to rely on that ground.

Ground 1A: Consideration

58    I am conscious of the fact that the IAA’s reasons should not be read in an over meticulous fashion, with an eye to discovering error. I am, however, unable to read [7] of the IAA’s reasons in the way in which the Minister contends. I accept the appellant’s submission that the analysis in that paragraph stands in stark contrast to the IAA’s analysis of the new information referred to in [5] and [6] of its reasons.

59    In [7], the IAA identifies the following new information:

(a)    the appellant’s wife is living with a man;

(b)    the appellant has received death threats from his wife and this man;

(c)    the appellant has no place in Sri Lanka in which to live;

(d)    the appellant’s son has been taken from him and there is no way that the appellant can get access to him; and

(e)    when he was in Sri Lanka, the appellant tried to commit suicide because he felt no hope and had no way of living in that country.

60    This information was given to the IAA by the appellant. In accordance with AUS17, the IAA was required to evaluate this new information against the criteria of s 473DD(b)(i) and (ii) before reaching a conclusion, under s 473DD(a), on whether exceptional circumstances existed to justify considering the new information as part of its review.

61    I am satisfied that the IAA considered the information in (a), (b) (insofar as it concerned death threats from the man with whom the appellant’s wife was living), (c), and (d) against s 473DD(b)(i). In reasoning to its conclusion that the information was lacking in probative value, the IAA appears to have reached a final conclusion on the truth of these aspects of the appellant’s claims rather than directing its attention to the anterior determination of whether the information was “credible” in the sense of capable of being believed. I accept that this aspect of the IAA’s decision strongly suggests that the IAA did not undertake the evaluation required under s 473DD(b)(ii) in respect of this new information. It appears to have diverted itself from undertaking that task. Considering the application of s 473DD to new information is part of the IAA’s task in determining the scope of the material properly available to it in order to undertake its review task. Reaching a final conclusion on the truth of the appellant’s claims is a separate and discrete task, which can only be reached on the basis of all the information properly before the IAA for review.

62    The IAA did not consider the new information in (b) (insofar as it concerned death threats from the appellant’s wife) or (e), against s 473DD(b)(i) or (ii). In this appeal, the Minister did not contend that either of these matters, if known to the delegate, could not have affected consideration of the appellant’s claims.

63    I am satisfied, therefore, that the IAA did not carry out the task required of it under s 473DD and that its conclusion that exceptional circumstances did not exist to justify considering the new information was reached in error. It follows that Ground 1A succeeds.

Disposition

64    In light of this conclusion, the appeal must be allowed. Order 1 made by the Federal Circuit Court on 18 September 2020 should be set aside. A writ of certiorari should issue quashing the IAA’s decision of 2 January 2019. A writ of mandamus should issue directing the IAA, differently constituted, to conduct its review according to law. Given that the grounds on which the appellant relied at trial failed, I will not disturb the order for costs made by the Federal Circuit Court. The appellant should, however, have the costs of this appeal.

Associate:

Dated:    7 September 2021