Federal Court of Australia

EEP18 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FCA 682

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent is changed to Minister for Immigration, Citizenship and Multicultural Affairs.

2.    Leave to rely on the draft amended notice of appeal annexed to the affidavit of Carina Ford affirmed on 31 October 2022 be granted.

3.    The appeal be allowed.

4.    Order 1 of the orders of the Federal Circuit Court of Australia made on 25 March 2020 be set aside and, in their place, the following orders be made:

(a)    A writ of certiorari be issued quashing the purported decision of the second respondent dated 13 July 2018; and

(b)    A writ of mandamus be issued requiring the second respondent to reconsider the application for review according to law.

5.    The first respondent pay the appellant’s costs as agreed or taxed pursuant to r 40.12 of the Federal Court Rules 2011 (Cth).

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

REASONS FOR JUDGMENT

RAPER J:

1    This is an appeal from a decision of the (then) Federal Circuit Court of Australia (FCCA), delivered ex tempore by the primary judge on 25 March 2020: EEP18 v Minister for Immigration & Anor [2020] FCCA 411 (J). In that decision the primary judge dismissed an application for judicial review of a decision of the second respondent (Authority) made on 13 July 2018. The Authority had affirmed a decision of the delegate of the first respondent (Minister), made on 13 October 2017, refusing to grant the appellant a Safe Haven Enterprise (subclass 790) visa (SHEV), which is a type of protection visa, pursuant to s 65 of the Migration Act 1958 (Cth).

2    I previously dismissed this appeal on 6 July 2022, pursuant to rr 36.74(1)(c) (for non-appearance) and (d) (for want of prosecution) of the Federal Court Rules 2011 (Cth), on account of the appellant’s failure to appear at both case management hearings held on 8 June and 6 July 2022.

3    On 28 November 2022, the parties agreed that the matter should be reinstated and I made orders setting aside my previous orders dismissing the appeal and reinstating the appeal, pursuant to r 39.05(a) of the Federal Court Rules, such that the matter could proceed to hearing.

4    On 11 May 2023, I heard the substantive appeal and reserved my judgment.

5    For the following reasons, I allow this appeal.

Factual Background

6    The appellant is a citizen of Sri Lanka. He arrived on Christmas Island on 25 April 2013. As an unauthorised maritime arrival, he applied for a SHEV on 16 September 2016.

7    The appellant’s claims for protection are on the basis of his Tamil ethnicity, his and his family’s past association with the Liberation Tigers of Tamil Eelam (LTTE) and as a failed asylum seeker who left Sri Lanka unlawfully. His claims were particularised in the primary judgment at J[4], as follows:

a)     he is a Tamil and was born in the Jaffna district. He was caught up in Sri Lankan Army (SLA) round ups of Tamil youth;

b)     his brother was working for the Liberation Tigers of Tamil Eelam (LTTE) as a tax collector from 2005 and disappeared in 2009;

c)     following the end of the civil war in 2010, the applicant went to look for his brother in the army camp in Vavuniya and was beaten and detained for four days. The applicant was harassed and interrogated about his brother’s whereabouts;

d)     the CID or the SLA took his National Identity Card (NIC) in 2010. The applicant then left illegally for India. Following his departure, his parents were arrested and the applicant had not heard from them since. He had been told his father had passed away; and

e)     he feared harm on the basis that he no longer had an NIC and was a failed asylum seeker who departed illegally.

The delegate’s decision

8    The delegate accepted that the appellant falls within a particular social group, as defined in s 5L of the Act, as a “failed Tamil asylum seeker who left Sri Lanka unlawfully” and fears harm based on his Tamil ethnicity, imputed political opinion of his brother’s involvement in the LTTE and on the basis of being a failed asylum seeker who left Sri Lanka illegally. The delegate also accepted that the harm feared met the requirements of serious harm: s 5J(4)(b).

9    However, the delegate was not satisfied that the appellant was a refugee as defined by s 5H(1) of the Act and therefore concluded that he was not owed protection obligations pursuant to s 36(2)(a). The delegate in her reasons explained why she was not satisfied that the appellant holds a well-founded fear of persecution with respect to the above characteristics and made the following relevant findings:

(a)    The chance of the appellant being imputed with LTTE connections by reason of his Tamil ethnicity was remote.

(b)    It was not accepted that, as a result of the appellant’s brother’s low level involvement in the LTTE, the appellant was a person of interest to the Sri Lankan authorities when he departed Sri Lanka in 2010.

(c)    It was not accepted that, based on country information, if the appellant, upon arrival in Sri Lanka, is held in detention for a short period to facilitate the processing of charges for illegal departure and consequent fines, this will not amount to serious harm and involve persecution.

10    The delegate also found that the appellant did not meet the complementary protection criterion under s 36(2)(aa) of the Act because she was not satisfied that, as a necessary and foreseeable consequence of being removed to Sri Lanka, there is a real risk the appellant would suffer significant harm. The delegate reiterated and expanded on her findings with respect to whether the appellant was a refugee including finding that the appellant may face minor harassment and monitoring based on his Tamil ethnicity, place of residence and scars and he may be remanded in custody for a short period as a person who departed Sri Lanka illegally and/or a failed asylum seeker (noting, to date a custodial sentence had never been imposed on illegal returnees like the appellant). However, the delegate was not satisfied that any harassment or short period of detention would constitute cruel, inhuman or degrading treatment or punishment, or that there is a real risk that the applicant would be arbitrarily deprived of his life, subject to the death penalty or tortured as defined in s 36(2A) of the Act.

Part 7AA of the Act

11    The Authority’s procedure in undertaking a review of a decision referred to it by the Minister under s 473CA of the Act has been summarised in the following decisions: AWB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 983 at [14]–[22]; CQQ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 982 at [15]–[22]. The Authority’s review is conducted on the papers (s 473DB) but is subject to natural justice requirements pursuant to Div 3 of Pt 7AA, together with ss 473GA and 473GB. Under s 473DA, these provisions are taken to be an exhaustive statement of the natural justice hearing rule:

473DA Exhaustive statement of natural justice hearing rule

(1)      This Division, together with sections 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 Immigration Assessment Authority.

(2)      To avoid doubt, nothing in this Part requires the Immigration Assessment Authority to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.

12    Section 473DC empowers the Authority to obtain new information and, relevant to this appeal, s 473DD empowers the Authority to consider new information in exceptional circumstances. These provisions provide:

473DC Getting new information

(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.

473DD Considering new information in exceptional circumstances

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

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

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

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

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

The Authority’s decision

13    The Authority received submissions from the appellant’s representative on 11 November 2017 which the Authority noted restated the appellant’s fears presented to the delegate, country information that was before the delegate and arguments in support of his case. To the extent that the submissions did not contain new information, the Authority had regard to it: at [3].

14    However, with respect to extracts provided from the “Advanced Unedited Version of the Committee against Torture’s (CAT) concluding observations on the fifth periodic report of Sri Lanka” (CAT report), the Authority found this was new information, was not satisfied that there were exceptional circumstances to justify considering the document and concluded that the appellant had not satisfied it that the requirements of s 473DD(b) were met.

15    The appellant had submitted that it would be unreasonable to give more weight to a 2015 Department of Foreign Affairs and Trade (DFAT) Country Information report (2015 DFAT report) than the more recent CAT report. The document, while undated, reported on a meeting held in November 2016 (predating the delegate’s decision by 10 months). The Authority found, however, that the delegate made no reference to the 2015 DFAT report but considered both the 2017 DFAT Country Information report (2017 DFAT report) and country reports from 2016 and 2017 from various credible and reliable sources such as the UK Home Office and the US State Department: at [4].

16    Relevant to the first ground of appeal, in the submissions provided to the Authority, the appellant submitted that he would face harm by being processed en masse as part of a group on return to Sri Lanka where if one member of the group was found to be a person of interest by the Sri Lankan authorities then all group members could be imputed with a political opinion they do not hold (the imputation claim). The Authority accepted that the appellant may be processed as part of a group on return, which was a fact contained in the country information (namely, the 2017 DFAT report) before the delegate, and considered that in its assessment. However, the Authority noted that the claimed imputation was not previously raised nor was apparent from the 2017 DFAT report referred to in this context and no evidence was provided in support of the claimed risk of imputation. Accordingly, the Authority found the new claim to be speculative and was not satisfied that there were exceptional circumstances to justify considering the new information: at [5].

17    Relevant to the second ground of appeal, the appellant’s representative provided a second submission on 25 November 2017. The submission included a new claim that the appellant’s father was killed by the Sri Lankan Army (SLA). While the fact of the appellant’s father being deceased was before the delegate, the Authority considered the claim of the appellant’s father being killed by the SLA to be new information within the meaning of s 473DD of the Act. As the appellant did not point to any circumstances warranting consideration of the new information, nor did the Authority consider there were any such circumstances, it was not satisfied there were exceptional circumstances to justify considering the new information: at [6]–[7].

18    With respect to its assessment of whether the appellant was a refugee within the meaning of s 5H(1) including whether he had a well-founded fear of persecution, within the meaning of s 5J, the Authority found the appellant did not meet the requirements in s 5H(1) and therefore did not meet s 36(2)(a): at [48].

19    In its refugee assessment, the Authority accepted the following:

(a)    The appellant is a Tamil from Jaffna who was questioned by the SLA from time to time and was caught up in SLA round-ups of Tamil youths when he was a teenager during the civil war years: at [26].

(b)    The appellant’s brother was employed by the LTTE civil administration as a tax clerk in the Vanni region from 2005 to 2007 and has not seen him since. The appellant’s brother had no other involvement with the LTTE: at [27].

(c)    The SLA harassed the appellant by requiring him to report to a camp for questioning about his brother and the LTTE over a four to six month period between late 2009 and early 2010. The appellant was detained, questioned and mistreated, once for up to four days and for one to two days on other occasions (yet observing that this was a regrettably commonplace form of intimidation and harassment of Tamils in the immediate post-war years and was not indicative of any continuing interest by the Sri Lankan authorities in the appellant): at [28] and [30].

(d)    The appellant’s National Identity Card (NIC) was confiscated and the appellant fears he may be of concern to the authorities and would raise suspicion when applying for a new card (noting however that the Authority in this regard rejected, based on country information and its conclusion that the appellant was not of any ongoing interest to the Sri Lankan authorities, that any issues would arise for the appellant when applying for a replacement NIC): at [29].

(e)    The appellant departed Sri Lanka illegally to India in September 2010 and that as a result, upon return he would be found to be in contravention of the Sri Lankan Immigrants and Emigrants Act 1949 (Sri Lanka) (the I&E Act) and as a result will likely be questioned, detained briefly and liable to pay a fine: at [41] and [45].

20    The Authority undertook a lengthy analysis of country information with respect to Tamils in Sri Lanka, noting that “merely being a Tamil from an area formerly under LTTE control no longer gives rise to a need for international protection”: at [37]. The Authority also previously noted that, had the appellant ever been seriously suspected of ongoing or continuing links to the LTTE, the Sri Lankan authorities had an adequate opportunity to take action each time the appellant reported to the SLA. Accordingly, the Authority found that because they did not do so, the authorities did not have concerns about the appellant at that time, nor when he departed Sri Lanka: at [19].

21    The Authority concluded with respect to this aspect of the appellant’s claim that (at [40]):

Having considered all of the evidence before me, I am not satisfied that the applicant would face a real chance of harm arising from his Tamil ethnicity, his habitual residence in the Northern Province, the round-ups he experienced during the war years, his brother’s employment as an LTTE tax clerk, the confiscation of his NIC, because he was required to report and sign at a SLA camp for a short period in late 2009/early 2010, because of his status as a failed Tamil asylum seeker, or any combination of these claims if returned to Sri Lanka.

22    With respect to the appellant’s fear of harm from the authorities as a failed asylum seeker, the Authority (like the delegate) noted that country information demonstrates that while involuntary returnees may face questioning, checks and a short period of detention (in which the conditions are poor due to overcrowding and a shortage of basic facilities), this brief period on remand, in addition to a fine, is the height of the consequences that the appellant would likely face. Accordingly, the Authority was not satisfied that the treatment and penalties that the appellant may be subject to upon re-entry would amount to serious harm. Moreover, the Authority concluded that the I&E Act applies to all Sri Lankan citizens and is not discriminatory in its application or enforcement and would not amount to persecution within the meaning of s 5J(4).

23    As to the complementary protection criterion, the Authority found that the appellant did not meet the criterion in s 36(2)(aa), that, as a necessary and foreseeable consequence of being returned to Sri Lanka, there is a real risk that the appellant would suffer significant harm: at [53].

24    The Authority relied on its reasons in its refugee assessment to so conclude, noting that a “real chance” and “real risk” involve the same standard (Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; 210 FCR 505 at [51]); however, it made additional findings with respect to the appellant’s fear of harm as a person who departed Sri Lanka illegally. The Authority also found that it was not satisfied, as a result of this status, that any arrest, detention (including in poor prison conditions), fine or investigation that the appellant may experience upon return would constitute significant harm and stated (at [52]):

… I am not satisfied that the acts or omissions of the Sri Lankan officials in this process are intended to inflict pain or suffering, severe pain or suffering or to cause extreme humiliation, as is required by the definitions of cruel or inhuman treatment or punishment, or degrading treatment or punishment. The treatment does not consist of the death penalty or arbitrary deprivation of life, nor am I satisfied that there is a real risk he will be subjected to torture.

The primary judge’s decision

25    The proceedings before the primary judge began with a show cause application filed on 14 August 2018 in which there were two grounds of review. However, in written submissions prior to hearing, the appellant, represented by a solicitor, foreshadowed abandoning the first ground and reformulating the second ground. At hearing, the primary judge granted leave for the appellant to file and serve an amended application: at J[17]. The sole ground advanced was then as follows:

The Authority failed to consider in accordance with the law if the fact that the applicant did not have an NIC [National Identity Card] would expose him to risk.

PARTICULARS

(i)     The applicant claimed that were he to apply for a new NIC he would immediately come to the adverse attention of the authorities due to his past interactions with the authorities;

(iii)     The Authority accepted that the applicant's NIC was confiscated as claimed [29].

(iv)     The Authority accepted that the applicant:

a     was required to report to the SLA [30]

b     was questioned about his brother [30];

c     was mistreated and detained [30].

The Authority did not make a cumulative assessment of the risk to the applicant arising from its finding. That is (i) that the applicant did not have an NIC (ii) that on return to Sri Lanka the applicant would be detained at the airport and (iii) that the applicant would be interrogated as to (inter alia) his identity, arrested and charged.

(Emphasis in original.)

26    The primary judge found that the Authority had not made a jurisdictional error in the manner contended by the appellant and accordingly dismissed the appeal.

27    His Honour gave fulsome reasons from J[19]–[36] addressing this ground of review. In particular, the primary judge found, at J[29]–[30], that [8] and [29] of the Authority’s reasons comprised an express reference to the claim relating to the appellant’s NIC and that, accordingly, the Authority had recognised and considered the appellant’s claim but found that the Sri Lankan authorities would not consider him a person of interest: at J[31].

28    The primary judge then found as follows:

32.     The applicant asserts that the Authority committed jurisdictional error in failing to consider his claims cumulatively, the Minister submits that in circumstances where the Authority made findings in respect of each claim raised by the applicant and found that none of the claims gave rise to any risk of serious or significant harm, the lack of any reference to “cumulative consideration” of these claims does not demonstrate any jurisdictional error. I agree. As stated by Full Federal Court in the case of DDK16 at [34]:

...as a matter of inexorable logic, that if, as is common ground here, all individual claims or bases for establishing an entitlement to a visa are dismissed (here, dismissed as not giving rise a real or significant risk of harm upon return to the country of nationality or receiving country), then no amount of “cumulative consideration” of those rejected claims is capable of producing a different result.

33.     That inexorable logic applies here. As stated above, in addressing the applicant’s claim with respect to his NIC, the Authority found at [29] that:

a)     country information did not support the proposition that persons who cannot product (sic) their NIC on the spot are imputed to be an LTTE member, an LTTE supporter or a criminal;

b)     the applicant may have to travel to a major township to apply for a replacement NIC, but country information did not indicate that a replacement NIC would be unavailable to him; and

(c)     as he was not of ongoing interest to the Sri Lankan authorities, applying for a replacement NIC would not give rise to any issues.

34.     With respect to the applicant’s claim that he would be detained, interrogated, arrested and charged, the Authority made the following findings:

a)     as a returnee who departed Sri Lanka illegally, the applicant would very likely be subject to scrutiny as part of routine immigration processing; and

b)     as there was no evidence that he had a criminal background or outstanding court orders or arrest warrants against him, the extent of the returnee processing applicable to the applicant would very likely consist of detention at the airport, being briefly held in a prison and/or fines. Notably, having regard to “the applicant’s circumstances”, the Authority was not satisfied that any treatment and penalties he may be subjected to on re-entry as a consequence of his illegal departure amounted to serious harm.

(Emphasis in original, footnotes omitted.)

29    His Honour found that the Authority did in fact consider the purported risk arising from the appellant’s lack of a NIC and found it would not expose him to any risk. Further, the prospect of the appellant being detained at the airport and interrogated, arrested or charged, would not amount to serious or significant harm: at J[35].

30    Accordingly, the primary judge found that “no amount of ‘cumulative consideration’ of those rejected claims is capable of producing a different result”: at J[35] quoting Minister for Immigration and Border Protection v DDK16 [2017] FCAFC 188 at [34].

31    As will be dealt with below, the appellant now advances two completely different grounds for impugning the Authority’s reasons, and does not submit that there was error in the primary judge’s reasons.

The present appeal

32    By notice of appeal filed on 1 April 2020, the appellant sought “a review of the whole of the judgment made by the FCC”.

33    Following the appellant retaining new legal representation in his matter, the appellant sought to rely on a draft amended notice of appeal annexed to the affidavit of the appellant’s solicitor filed 31 October 2022. Two grounds are advanced, neither of which were advanced below, and are as follows:

1.     The Second Respondent erred in treating the argument at Reasons [5] about “imputation” as new information, when it was not, and then in failing to consider the argument.

2.     The Second Respondent erred at Reasons [7] in failing to address s 473DD(b).

Consideration

Application for leave to rely on new grounds of appeal

34    For the following reasons, leave is granted.

35    The fundamental question is whether the grant of leave is in the interests of justice: see Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125; 285 FCR 187 at [13].

36    I accept that an appeal is not an opportunity to conceive of new grounds of review where an applicant is unsuccessful at first instance because the appellate court’s function is to correct any error in the judgment of the court of first instance. Granting leave does subvert the Court’s appellate function if an appellant were allowed (without good reason) to re-run trials or advance new points: see Coulton v Holcombe (1986) 162 CLR 1 at 7. In Han v Minister for Home Affairs [2019] FCA 331 at [10], Bromwich J opined:

Appeals, even appeals by way of rehearing such as this appeal, are not to be relegated to the role of only providing an opportunity to conduct a second trial upon a different basis, the first trial having failed.

37    However, here there is good reason. As the Minister correctly conceded, the Minister accepts that the appellant’s proposed grounds have some merit to them. I accept this is not determinative of the question of whether leave should be granted: see Han at [8]–[9]. I have also, consistent with the approach suggested by the Minister, considered the full argument of the grounds to determine not just whether they are meritorious but whether, in fact, they persuade the Court to grant the relief sought. For the reasons set out below, I am satisfied that ground 2 has merit and the relief sought should be granted.

38    Further, I accept that the appellant was legally represented in the Court below and the appellant’s then solicitor sought leave to amend the application for judicial review, from which the Minister submits it must be inferred that the appellant’s legal representatives decided forensically to advance one ground, and not to pursue other (potentially available) grounds. I also accept that the fact that the appellant has obtained new legal representation is not itself a factor that favours a grant of leave: BLX16 v Minister for Immigration and Border Protection [2019] FCAFC 176 at [31]; CSZ15 v Minister for Immigration and Border Protection [2017] FCA 706 at [11].

39    Nonetheless, it is my view that it is in the interests of justice to grant leave on this occasion. The Minister has asserted no basis for particular prejudice in granting leave. In the circumstances, it would be inappropriate to refuse leave where there is merit in this appeal.

Ground 1

40    By ground 1, the appellant alleges that the Authority, at [5], misconstrued (as being “new information”) his submission that, upon returning to Sri Lanka, he could be imputed with a political opinion if a member of the returning group is found to be a person of interest by the Sri Lankan authorities. The appellant submits that this purported submission had to be considered on a final basis and not, as the Authority did, through the filter in s 473DD such that it was disregarded.

41    This ground of the appeal concerns this portion of the appellant’s submission to the Authority:

Risk of being processed “en masse”

It appears that when Tamil asylum seekers are returned to Sri Lanka they are returned in large groups. More recently 25 Tamil asylum seekers were returned as a group from Australia.

The more recent DFAT report at paragraph 5.19 states: “Returnees are also processed en masse, and individuals cannot exit the airport until all returnees have been processed”

It is submitted that should the applicant be returned to Sri Lanka as part of a larger group of failed Tamil asylum seekers, there could be extensive amounts of delays as DFAT states returnees cannot exit the airport until all have been processed.

Should one member of the group of returnees who are processed “en masse” attract adverse attention for whatever reason, members of the group of returnees are likely than not to also be affected which could expose members of the group of returnees processed en masse to be persons of interest. It is my submission therefore that there are risks when processing returnees particularly Tamil asylum seeker returnees en masse. Members of such a group could all be imputed with political opinion they did not hold due to one member of such a group being found to be a person of interest.

(Emphasis in original.)

42    The imputation claim is contained in the last paragraph of this extracted portion.

43    Paragraph [5] of the Authority’s reasons dealt with this imputation in the following way:

The submission states that the applicant faces harm because he will be processed en masse as part of a group on return to Sri Lanka and because members of the group could all be imputed with a political opinion that they do not hold due to one member of the group being found to be a person of interest by the Sri Lankan authorities. The fact that the applicant may be processed as part of a group on return was in the country information before the delegate and I have considered it in my assessment. However, the claimed imputation was not previously raised (nor is apparent on the face of the DFAT report referred to in this context) and no evidence has been provided with the submission in support of the assertion of the claimed risk of imputation. I consider this new claim to be speculative at best. I am not satisfied that there are exceptional circumstances to justify considering the new information.

(Emphasis in original.)

44    The parties accept that the crux of ground 1 is whether the imputation claim was a submission based upon existing review material and facts or whether it was “new information” within the meaning of s 473DC, such that the Authority was required to consider the criteria in s 473DD before considering the prospect of imputation.

45    What constitutes “new information” within the meaning of ss 473DC and 473DD has helpfully been the subject of High Court and Full Federal Court authority: “New information” in s 473DD has been found to be limited to “information” in the ordinary sense of a communication of knowledge about some particular fact, subject or event: Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 264 CLR 217 (at [24] per Gageler, Keane and Nettle JJ, with whom Gordon J agreed at [78] and Edelman J agreed at [100]). The Authority is not precluded from considering a “submission” so long as it “addresses the information already made available for consideration by the Authority and which contains no additional factual information”: Minister for Immigration and Border Protection v CLV16 [2018] FCAFC 80; 260 FCR 482 (at [50]). A new argument in support of an integer of a claim which might or might not be based on new information is not necessarily itself new information: DNA17 v Minister for Immigration and Border Protection [2019] FCAFC 146 at [39].

46    Care must be taken not to adopt the phrase “new claim” which is conventionally understood as the assertion of a claim as would or might engage with Australia’s protection obligations originally under international law and now statutorily codified: DNA17 at [39]. As adverted to by Mortimer J (as her Honour then was), the use of the problematic descriptor of “claim” may pay insufficient attention to the central term “information” — what matters is whether in a “claim” there are new or different facts, or factual information, or whether the visa application is relying on the same facts, or factual information, characterised in a different way: CAQ17 v Minister for Immigration and Border Protection [2019] FCAFC 203; 274 FCR 477 at [8].

Competing positions

47    The parties appeared to agree on the applicable principles but disputed, by application, what the applicant’s imputation claim comprised. Both parties accepted the dangers associated with the use of the term “claim”. Both parties contended that the requisite consideration needs to focus on the information and to disentangle from what was provided what constituted submissions which are not, in themselves, new information.

48    On the appellant’s contention, the Authority failed to consider the appellant’s submission on a substantive basis as it found the submission to be only “speculative”, thereby only offering a preliminary impression of the submission, rather than a proper analysis of it and, in doing so, refusing to consider the submission.

49    This failure to consider the submission where the Authority was obliged to do so, because it was a substantial argument based on established facts, is submitted by the appellant to be a jurisdictional error.

50    By contrast, the Minister submitted that the appellant mischaracterises the imputation claim as amounting to no more than a submission based on information already before the Authority. Rather, on the Minister’s submission, the appellant was attempting to characterise a new and discrete claim arising from new information as a submission based on the original information that was before the delegate. Such a characterisation cannot be sustained, on the Minister’s submission, because it runs contrary to the intent behind ss 473DC and 473DD to restrict the information before the Authority, subject to where there are “exceptional circumstances”. The Minister did not accept that the imputation claim was an integer of the appellant’s existing claim that by virtue of his brother’s association with the LTTE he needed protection on a political basis, but rather a claim of political opinion risk having regard to the fact that he would be imputed in that way because of how the 2017 DFAT report stated he would be returned with a group.

51    The Minister submitted that, if the appellant’s submission were accepted, then a referred applicant before the Authority could advance any new claim of harm, including one based on a different aspect of s 5J(1) of the Act. The Minister contended that this cannot be accepted here where the information derived from the 2017 DFAT report had stated, at [5.19], “[r]eturnees are also processed en masse, and individuals cannot exit the airport until all returnees have been processed” and therefore the imputation claim was necessarily additional information, in the sense of a “communication of knowledge about some particular fact, subject or event” (Plaintiff M174 at [24]). Accordingly, the Minister submits that this information, as the Authority found, was new information and had to be considered by reference to s 473DD.

52    The appellant contended that as the 2017 DFAT report was before the delegate and thus in the review material before the Authority (being transmitted from the Department) the reference to [5.19] of the report was not new information and the imputation claim was only a submission based on existing material. Moreover, a DFAT report is a mandatory consideration for the delegate. However, the appellant conceded that the 2017 DFAT report did not establish (nor consider at all) that by virtue of returning as a group it could expose members of that group to become persons of interest by imputation. Rather, the 2017 DFAT report establishes the premise that returnees are processed en masse.

53    The appellant then submitted, rejecting the Minister’s submission that the argument that “a risk of harm exists” is new information, that he was seeking to have the Authority assess risk — whether, if one person in the group is a person of interest, that may cause all others to be imputed with a political opinion. On the appellant’s contention, this is not a fact, event or circumstance, but an “idea” directed to the concept of risk. It is a submission about what the evidence or established facts say about the risk that the appellant might face and it characterises or identifies the consequences from the information in the 2017 DFAT report. This is consistent with the burden on the appellant being limited to establishing that he would face a real chance of the imputation, not that it would happen or had happened, which is “simply a new way of thinking about the same facts”, on the appellant’s submission.

54    The Minister submitted that the 2017 DFAT report comprised the relevant “facts” before the delegate and did not itself establish that there was any risk, imputation or political opinion claim arising from it. As a result, on the Minister’s submission, the appellant had to add something to the information in the 2017 DFAT report in order to advance his claim and for it to have any substance, which is what he purported to do and was the relevant new information. The appellant was then asking the Authority to draw a factual assumption (being the imputation) as the precursor for his fresh claim of adverse political opinion that had not been put to the delegate. Accordingly, the Minister contends that the appellant’s assertion was not simply a submission about how the information in the 2017 DFAT report should be construed, it went further than that and lay assumptive factual groundwork for the Authority to rely upon (and assume to have veracity) in order to consider the new claim.

55    The appellant accepted that he had to “add something” to the review material for the imputation claim to succeed but submitted this was not new information, but rather a reliance on existing material, and referred to the Court’s finding in DNA17 at [40] by analogy:

Save in one respect, we agree with the appellant’s categorisation of the statements contained in the Submitted Relocation Material. The propositions drawn from the two DFAT reports were not new information for the purposes of s 473DD because the reports were before the delegate when making the original decision. By elaborating upon those reports and advancing arguments as to their limitations or proper meaning, the appellant was not providing new information to the Authority but was making submissions.…

(Emphasis added.)

Consideration of ground 1

56    As the authorities have revealed, there is no clear line between when something comprises a submission or proposition arising from information already before the delegate or Minister, when it comprises a combination of information that was before the delegate or Minister and new information and/or purely new information. As observed by the Full Court, in CLV16 at [74], it is for the Authority to “sort the wheat from the chaff”.

57    In DNA17, the Full Court accepted that part of the Submitted Relocation Material was not new information, extracted at [55] above. The assessment requires consideration being given to the source material before the delegate or Minister and the submission made to the Authority. The appellant’s reference to the Court’s conclusion at [40] in DNA17 must be understood in the context of the submission made, extracted by the Court at [13], and where the appellant had contended that the submission had been drawn from the DFAT reports before the Minister or from the delegate’s own findings (referred to by the Court at [34]).

58    In this case, the appellant was unable to point to any part of the DFAT report or the delegate’s findings that provided a basis for the imputation claim.

59    It is my view that the submission regarding the risk of the appellant being imputed with a political opinion by reason of en masse processing is a combination of a submission and not new information (in the sense that being processed en masse was already before the delegate) and new information (that members of such a group could all be imputed with political opinion they did not hold due to one member of such a group being found to be a person of interest). That new information was not information that was before the delegate nor did it arise from the delegate’s findings. By contrast, the submission as to the fact of en masse processing which could lead to the appellant being held at the airport was not new information, had arisen from the DFAT report and was taken into account by the Authority, as acknowledged at [5] of its reasons, extracted at [43] of these reasons above.

60    Notably, in CVK16 v Minister for Immigration and Border Protection [2017] FCA 1434; 257 FCR 297 at [25]–[27]; [49]–[51], McKerracher J found that an expressed fear of harm, even though based upon a previously known charge, was still considered new information. In this case, there is not only a new expression of a fear of harm but one that is based on new information (the possible imputation of political opinion).

61    The appellant sought to support his argument by reference to the Authority’s reasons at [3] and how the Authority acknowledges the distinction between new information and submission:

On 11 November 2017, the applicant’s representative provided a submission to the IAA by email. The submission restates a number of the applicant’s fears presented to the delegate, refers to country information that was before the delegate and presents arguments in support of the case. Insofar as the submission engages in legal argument with the delegate’s decision based on information which was before the delegate, it is not new information and I have had regard for it.

(Emphasis added.)

62    Then, with respect to [5] of the Authority’s decision, the appellant submitted that the Authority did not identify the relevant fact, subject, event or circumstance that was new and unless the Minister can indicate what particular “fact, subject or event” was supposedly added to the review material (which on the appellant’s contention, he has not) the Minister’s argument must fail.

63    It is my view that the Authority did identify what the “relevant fact, subject, event or circumstance” was that was new: The Authority draws a distinction, at [5], between the fact of en masse processing and the prospect of the appellant being held and delayed entry and the asserted fact of that group being imputed with a political opinion.

64    I accept that the imputation claim was an extension of the fact of returnees being processed en masse. However, I accept the Minister’s submission that ultimately, it was new information which the delegate had not needed to consider because it had never been put and information to support the claim had never been before her.

65    Accordingly, ground 1 has not been made out. I accept, as the Minister conceded, if there were error it would be material.

Ground 2

66    By ground 2, the appellant contends that the Authority erred by failing to consider whether the referred applicant had satisfied it that the new information was not, and could not have been, provided to the Minister before the Minister made the decision under s 65 (s 473DD(b)(i)) or 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 (s 473DD(b)(ii)).

67    It was common ground that the principles concerning the approach the Authority must take in its consideration of new information under s 473DD has been authoritatively stated by the High Court in a number of recent judgments, including Plaintiff M174 and AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; 269 CLR 494. In AUS17, a plurality of the High Court opined (at [11]) that the Authority must assess the new information against criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) before considering the criterion specified in s 473DD(a). If neither of the criteria specified under s 473DD(b) are met, the Authority is prohibited from taking that new information into account. If either or both of the limbs specified in s 473DD(b) are met, they must be taken into account in the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a). The Authority’s non-performance of this procedural duty 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)”: (at [12]). Notably, the decision in AUS17 post-dates the Authority’s decision.

68    For the following reasons, I am of the view that this ground is made out.

69    The “new information” in question was contained in a submission of the appellant to the Authority dated 25 November 2017:

On the basis of paragraph 11 of the recent CAT report it is submitted that the applicant faces a real chance of Convention related persecutory treatment as in the past the applicant has been imputed with LTTE involvement / support, it must also be noted that the applicant’s father was killed by the army. It would be unreasonable to give more weight to the 18 December 2015 DFAT report and not consider contents in the more recent CAT report which is reflective of the current situation in Sri Lanka which has been published by a reliable source.

(Emphasis added.)

70    The Authority dealt with this submission at [7] of its reasons:

The submission also makes the new claim that the applicant’s father was killed by the Sri Lankan Army (SLA). The fact that the applicant’s father was deceased was before the delegate however I consider that the claim that his father was killed by the SLA to be new information. The submission provides no information on the date or circumstances of his father’s death and at no point in the arrival interview, the SHEV application or in the SHEV interview did the applicant claim that his father had been murdered by the SLA. The applicant stated at the arrival interview that his father died when he was one or two years old and when asked about the cause of his father’s death stated only that “he died of an illness”. In the SHEV application he stated that his father had “passed away” after he left for India in late 2010. He provided no information on the date or cause of his father’s death although somewhat contradictorily he also stated in the visa application form that his father had died “in approximately 2001” (Question 42 of the visa application form) although I accept that the date of “2001” in Question 9 may have been a typographic error. At the SHEV interview, the delegate asked the applicant when his father had died and he replied that it had been “about two years ago” putting his father’s death in approximately 2015. The delegate asked the applicant if he knew how his father had died and the applicant replied “no”. The applicant was represented throughout the SHEV application process and his representative was given an opportunity to raise any additional claims or corrections to the applicant’s evidence at the conclusion of the SHEV interview. The representative spoke at some length at the end of the interview but did not advance the claim that the applicant’s father had been murdered by the SLA or that there was any uncertainty regarding the cause of his death. The applicant has not asserted that information about the death of his father at the hands of the army has only just come to light. Nor has he provided any details about the circumstances of his father’s death. All of this leads me to question the veracity of the assertion now being made. The applicant has not pointed to any circumstances to warrant the consideration of such information, nor is it evident to me that there are any such circumstances. I am not satisfied that there are exceptional circumstances to justify considering the information.

71    The Minister submits that the limbs of s 473DD were met by the Authority in the following way. The Minister contends subs (b)(i) (the new information was not, and could not have been, provided to the Minister before the Minister made the decision under section 65) was met where the Authority observed that the fact of the appellant’s father having been killed, as opposed to being deceased, was not advanced at all previously, and that the appellant “has not asserted that information about the death of his father at the hands of the army has only just come to light”. The Minister notes that the appellant does not appear to take issue with this aspect of the Authority’s consideration.

72    The Minister then submits that subs (b)(ii) was met where the Authority engaged with the three elements in this subsection being: whether the information is “credible personal information”, whether the information was “previously known” to the Minister (Plaintiff M174 at [33]), and whether, had the information been known, it might have affected the consideration of the referred applicant’s claims: Plaintiff M174 at [34]. The appellant accepts the Minister’s characterisation that there are three limbs to be satisfied of; however, he contends that the Authority’s reasons should not be construed as addressing all the limbs of s 473DD.

73    The Minister contends that these elements were met for the following reasons.

74    First, the Authority, when “question[ing] the veracity” of the appellant’s claim, was assessing its credibility under s 473DD(b)(ii), which can be gleaned from the Authority’s reasons: It noted that the submission did not provide information on the date or circumstances of his father’s death, no further submissions were provided in this regard; the claim was inconsistent with earlier claims that his father had either died of an illness in 2001 (although it was accepted this date may have been a typographical error), 2010 or 2015; and where, in the SHEV interview, the appellant had answered “no” to the question of whether he knew how his father had died. The Authority had also noted that the appellant had not suggested that the information of his father being killed had only just come to light and so, on the Minister’s contention, the Authority determined whether the information was credible as discussed in CSR16 v Minister for Immigration & Border Protection [2018] FCA 474 at [41]–[43]. The Minister submits that the fact that the Authority did not make an express adverse credibility finding is not a reason to find that the Authority did not engage with this factor, relying on DQI17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 106 at [49]–[50]. Rather, the questioning of veracity was a rejection that the claim had any merit.

75    Secondly, the Minister contends that even if the Authority did not, or did not adequately, address the question of whether the information was “credible personal information” it nonetheless engaged with s 473DD(b)(ii) by assessing whether the information was previously known and whether it might have affected consideration of the appellant’s claims. This is because, as the appellant accepted, the Authority does not need to deal with all three limbs where one limb fails. The Minister further submits that while the Authority found that the information was not previously known to the delegate, the nature and quality of the information was too sparse and undetailed for it to affect consideration of the appellant’s claims. Accordingly, as the Authority addressed the factors in s 473DD(b), it was not satisfied that there were exceptional circumstances to justify consideration of the new information and no error arises.

76    I do not accept the Minister’s submissions for the following reasons.

77    I am of the view that, when the Authority’s reasons are read as a whole, the Authority, in this state of mind, refused to admit the new information because there were no exceptional circumstances to justify its consideration under s 473DD(a) and critically, it did not make any finding directed to s 473DD(b), especially subs (b)(ii).

78    A review of this portion of the Authority’s reasons reveals a number of things. No direct reference is made directly to s 473DD(b). I accept the Minister’s submission, that despite the absence of direct reference, a reviewing Court can infer from the Authority’s reasons that the requisite assessment has occurred, where the substance of the criteria prescribed by s 473DD(b) has been considered prior to a consideration as to whether “exceptional circumstances” exist for the purposes of s 473DD(a): APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23 at [79]. I also accept that the reasons for an administrative decision should not be construed “finely with an eye keenly attuned to the perception of error” (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 272) and the Authority is not obliged to give reasons for the exercise or non-exercise of a procedural power, such as ss 473DC or 473DD: BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; 268 CLR 29 at [16].

79    However, the content and structure of the Authority’s reasons under the heading “Information before the IAA” is consistent with the appellant’s contention that the Authority did not undertake the required approach.

80    First, the Authority chose to expressly identify, and also adopt the statutory language of the section with respect to the three forms of “new information” by reference to the s 473DD(a) criterion, at [4], [5] and [7]. By contrast, the Authority failed to make any reference to the s 473DD(b) criteria in [5] and [7]. Secondly, when dealing with the first of the claims for reliance on the “new information”, at [4], the Authority first expressed its conclusion regarding the s 473DD(a) criteria and then stated, in a deliberate and separately emphasised way, “[i]n addition” that the applicant had not satisfied it that “the requirements of s.473DD(b)” had been met. Thirdly, when dealing with the imputation claim (extracted at [43] above), the Authority again expressly dealt with the s 473DD(a) claim but, like at [7], at [5] of its reasons, did not go on to consider expressly the s 473DD(b) claim, despite having done so at [4]. Fourthly, the Authority makes no reference, at [7], to, nor adopts any portion of, the statutory language from either ss 473DD(b)(i) or 473DD(b)(ii) in its reasons.

81    Further, contrary the Minister’s urging set out above, none of the reasoning in [7] demonstrates clearly that the Authority rejected the new information by reason of the criteria in s 473DD(b). To the extent that it was urged upon me that the Authority when “question[ing] the veracity” of the appellant’s claim was assessing the credibility of the information under s 473DD(b)(ii), I do not accept this submission, not only for the above reasons but also by reason of the following. I accept that there is a degree of overlap conceptually such that “veracity” could be directed to the word “credible” within s 473DD(b)(ii). However, as the appellant contends, the veracity of information and its probative value is also relevant to exceptional circumstances in s 473DD(a) and is equally capable of being seen as directed to exceptionality. Further, the reference to “the veracity of the assertion” arises where the Tribunal does not reject its veracity but only questions it. This again points to the Authority being concerned with the satisfaction of the “exceptional circumstances” limb and not the s 473DD(b) criteria. This view is fortified by what immediately follows this statement where the Authority states “[t]he applicant has not pointed to any circumstances to warrant the consideration of such information, nor is it evident to me that there are any such circumstances” (emphasis added). This use of the word “circumstances” twice in the sentence which precedes the conclusion of there not being any “exceptional circumstances” confirms this view.

82    I accept the appellant’s submission that the better reading of [7] is that the sentence directed to veracity was using that concept in the sense of low probative value for the purposes of s 473DD(a). Nowhere in [7] or elsewhere in the reasons is there any analysis of whether it is credible personal information, or could have affected the consideration of the appellant’s claims under subs (b)(ii). The lack of a subsequent credibility finding, after questioning its veracity, is indicative that this limb of subs (b)(ii) was not dealt with. As the appellant posited rhetorically, why would the Authority use the word “veracity” unless it was thinking about exceptional circumstances? If it was thinking about the credible personal information limb, it would be logical to use that language. Moreover, the Authority was not assessing whether the new information may have affected the consideration of the appellant’s claims.

83    The Minister’s reliance on AOU18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1095 is not of assistance. There Goodman J was well-placed to be able to infer that there had been the requisite consideration of the criterion in s 473DD(b)(i) because the Authority’s reasons, in two places, adopted its statutory language: See [42].

84    Accordingly, ground 2 is made out. Having found error, I note that the Minister accepted that if this error was made out, it would be material. I accept the correctness of this view. The error is material.

Conclusion

85    For these reasons, this appeal is allowed with costs.

Associate:

Dated:    22 June 2023