Federal Court of Australia

DDH17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 773

ORDERS

THE COURT ORDERS THAT:

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

2.    The appellant have leave to file and rely upon an Amended Notice of Appeal in the form of the Amended Notice of Appeal attached to his submissions filed on 30 May 2023.

3.    The Amended Notice of Appeal be filed forthwith.

4.    The appeal be dismissed.

5.    The appellant pay the first respondent’s costs as agreed or taxed.

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

REASONS FOR JUDGMENT

GOODMAN J

A.    Introduction

1    The appellant is a citizen of Sri Lanka who arrived in Australia in September 2012 as an unlawful maritime arrival and who on 5 May 2016 applied for a Safe Haven Enterprise (subclass 790) visa.

2    On 4 November 2016, a delegate of the first respondent (Minister) notified the appellant that a decision had been made under s 65 of the Migration Act 1958 (Cth) to refuse to grant a visa to the appellant.

3    On 10 November 2016, the delegate’s decision was referred by the Department of Immigration and Border Protection to the Immigration Assessment Authority for review.

4    On 1 December 2016, the appellant provided new information to the Authority. It is common ground that this information was “new information” within the meaning of s 473DC(1) of the Act. The Authority decided not to consider the new information for the purposes of making its decision under s 473CC of the Act.

5    On 16 June 2017, the Authority decided to affirm the delegate’s decision and provided its reasons for doing so. Those reasons included the Authority’s reasons for not considering the new information.

6    The appellant applied to the Federal Circuit Court of Australia (as the Federal Circuit and Family Court of Australia, Division 2, was then known) for judicial review of the Authority’s decision. That application was heard by Judge Driver (primary judge) and dismissed: DDH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 1523.

7    The appellant appeals to this Court from the judgment of the primary judge.

B.    Background

The appellant’s claims for protection

8    On 5 May 2016, a migration agent acting on behalf of the appellant lodged the visa application and accompanying documents including a statement signed by the appellant on 24 February 2016. That statement set out the appellant’s claims for protection. Those claims were conveniently described by the primary judge at J[3]:

3.    On 5 May 2016, the applicant applied for a Safe Haven Enterprise Visa (SHEV). The applicant appointed a registered migration agent. In a statement provided with the SHEV application, the applicant claimed that:

a)    he feared harm as a Tamil male from the Northern Province of Sri Lanka which was previously controlled by the LTTE. He claimed that when the LTTE were in control of the Northern Province he was asked to join them, but he had no desire or intention to join the fighting. In 2009, when he was aged 16, he and his family were displaced for about eight months and remained in a Displaced Person’s camp. They were released to return home in late 2009;

b)    the CID decided to target him for investigation as an LTTE member after his brother was questioned by the CID in 2011. The applicant’s brother had suffered shrapnel wounds from an explosion during the war. The CID suspected that because of his injuries, which were visible, the applicant’s brother had been a member of the LTTE. The applicant claimed his brother produced medical evidence of the circumstances of his injuries, and convinced the CID of his innocence. The CID then decided to target the applicant instead for investigation as an LTTE member;

c)    in February 2012, two persons from the CID came to the applicant’s workplace to see him, questioned him aggressively and accused him of being part of the LTTE. They reasoned that one person from his family must have been involved with the LTTE and, since his brother was cleared and his sister was a girl, he was the likely choice. These people eventually left after questioning him. The applicant claimed that the CID came to visit him on three further occasions to question his involvement with the LTTE and to threaten him. After their last visit on 25 July 2012, the applicant decided to flee as soon as possible and paid a people smuggler to arrange for his trip to Australia; and

d)    the applicant feared that on return to Sri Lanka he would be seriously harmed by the CID as a young Tamil man who was suspected of having an LTTE connection. He was also concerned about the consequences of his illegal departure from Sri Lanka.

9    On 9 August 2016, the Department invited the appellant to attend an interview on 1 September 2016 and the appellant did so.

10    On 9 September 2016, the appellant’s migration agent sent a detailed submission (of 25 pages) to the Department.

11    On 4 November 2016, the Department wrote to the appellant notifying him that: (1) his visa application had been refused on the basis that the appellant did not satisfy s 36(2) of the Act; (2) the decision to refuse his application had been referred to the Authority; and (3) the Authority would proceed to make a decision on his case on the basis of the information that the Department had provided to the Authority, unless the Authority decided to consider new information. The Department also provided the appellant with its reasons, explaining why his application had been refused.

12    On 10 November 2016, the Authority wrote to the appellant notifying him of the referral; and telling him that the Authority would proceed to make a decision on his case on the basis of the information that the Department had provided to the Authority, unless the Authority decided to consider new information.

13    As noted above, on 1 December 2016, the appellant provided the new information to the Authority. The new information was set out in a submission which included:

I wish to give you new information that I received after the interview

On 26 October 2016, my elder brother who returned from Qatar had gone to Vavuniya to meet his friends and he never returned back home. My mother made a complaint at the police and she was chased away. On 28 October 2016, two unknown persons came home in search of me and mentioned my name and asked her to hand over me to them. When my mother said that I had left the country to Australia they threatened to visit her till I was handed over to them. They refused to speak about my brother who disappeared. My mother complained at the Human Rights Commission on 4 November 2016. A copy letter from the Human Rights Commission is attached here with. I am in constant contact with my mother and she said recently that the CID officers came home to check whether I had returned back home. They said they were aware that I had fled from Sri Lanka by illegal boat. They ordered my mother to stop investigating about my brother. They threatened that if she complained to any organisation about my brother's disappearance, they would kill her.

14    The attached letter from the Human Rights Commission of Sri Lanka (HRC) dated 4 November 2016 was in the following form:

This is certify that [the appellant’s mother] of the above address came to our office on 31.10.2016 and made a complaint at this office thus:

That her son [N] had gone to Vavuniya on 26.10.2016 has not returned home until this date and he is missing. Two unknown persons have come to her house on 28.10.2016, after two days of missing her elder son [N] and they inquired about her younger son [the appellant] and they demanded to hand over him to them. She had told them, that her younger son had gone to Australia. Thereafter, that they gone saying that they will visit her for regularly inquiries. She feels that her family may face danger from these persons.

Further, we certify that the Human Rights Commission of Sri Lanka accepted the complaint made by [the appellant’s mother] and we have engaged in find out whether her elder son [N] is abducted and why her younger son [the appellant] is being searched and also taken necessary steps in providing adequate protection to her family members.

The Authority’s decision

15    As noted above, in June 2017 the Authority affirmed the delegate’s decision and published its reasons (Reasons, or R) for doing so. In its Reasons, the Authority explained why it declined to consider the new information (at R[7] to R[8]):

7.    The applicant also seeks to provide new information that his older brother disappeared on 26 October 2016. His (sic) asserts that his mother tried to report the disappearance but on 28 October 2016, she was threatened by the police, both in relation to the older brother as well as the applicant. She told the applicant that the police are asking about the applicant’s whereabouts. The applicant has attached a letter from the Human Rights Commission of Sri Lanka, dated 4 November 2016, that contains these allegations. I note that in his submission, the applicant states that he is constantly in contact with his mother and she has told him that the CID are coming to the house to check whether he has returned home.

8.    The alleged disappearance and the threats made by the police both post-date the date of the interview with the delegate on 1 September 2016 (the interview). However, the decision was not made until 4 November 2016. While the applicant could not raise this information at the interview, I note his evidence that he is in constant contact with his mother and I am satisfied that he would have found out about the incidents on or around 28 October 2016. There is nothing in the referred material to indicate that the applicant tried to contact the Department to bring these issues to the attention of the delegate. I also take into account that the applicant was represented by a specialist visa and migration legal firm and he does not appear to have contacted this firm to bring the issues to its attention. On this basis, I am not satisfied that the issue could not have been raised before the decision was made and I am not satisfied that there are exceptional circumstances to justify considering this new information.

16    The Authority then considered the appellant’s claims for protection under three broad headings  – “Imputed association with LTTE”, “Young Tamil male from the North”, and “Illegal departure and returned asylum seeker”. The Authority’s reasoning on the first of these topics is pertinent and is reproduced below:

15.    The applicant claims that he is suspected of an association with the LTTE because the LTTE had a policy of taking one child from every family. He provided the Department with post-interview submissions that refer to and extract from a number of reports that support this assertion. I have considered this information and in particular, the report from the Office of the United Nations High Commissioner for Human Rights. I accept that the LTTE participated in forced recruitment and child recruitment, that it had a de facto “one person per family” policy and a “one child per family” policy. Although the applicant has not claimed that he or any of his siblings were recruited, he has claimed that the LTTE came to the family home and spoke to his mother in 2008, when the applicant was 15. He said that he hid and the LTTE went away. Nevertheless, although neither the applicant nor any of his siblings were actually recruited, I am prepared to accept that the authorities may have suspected that, as a Tamil family in the Kilinochchi area, the applicant’s family had given a family member to the LTTE.

16.    The applicant, who has two older brothers and an older sister, was aged 16 when the conflict ended in 2009. He claims that his eldest brother, K, had left Sri Lanka in 2006 and was in Qatar at the time of the conflict and therefore would not be suspected of being recruited or taken by the LTTE. I am prepared to accept this claim.

17.    The applicant claims that he remained in the family home studying until 2009 when he, his mother and his remaining siblings were taken to a DP camp (his father being in Saudi Arabia at this time). The delegate asked the applicant about his experiences in this DP camp and the applicant said that the family had been kept together and that no member of the family was called in for questioning, visited, harassed or subject to any interest by the authorities. The family was released from the DP camp after several months and allowed to return to the family home in Kilinochchi.

18.    According to the information before me, DP camps were used as part of a screening process to identify and separate LTTE cadres and supporters. The process did not differentiate between fighters and political or administrative support cadres. Those who had any links to the LTTE were expected to identify themselves while those who were identified as being associated with the LTTE, including children, were removed from their families and taken to detention centres. DP, especially young men, were repeatedly questioned and warned to admit their affiliation and the authorities regularly called for people who had worked for the LTTE, even for only a single day. Persons who were not identified as having links to the LTTE were taken to closed camps and towards the end of 2009, were being released to return to their villages. I take into account that whilst in the camp, the applicant was never identified as being involved with, or suspected of association with the LTTE. The authorities did not separate, question, search or otherwise the applicant’s family, did not remove them to a detention camp and ultimately released them without any form of reporting or other conditions, to return to the family home. The applicant has not claimed that there were any follow up visits or enquiries once they returned home, other than the incidents dealt with below. On this basis, I am satisfied that the applicant (or any other member of his family) was not suspected of being involved with the LTTE up until he was released from the DP camp.

19.    The applicant’s second brother, N, was aged 20 when the conflict ended and had previously been injured by shrapnel, leaving scars on his hands and body. N was in the DP camp but as noted above, he was not screened out or subject to any questioning there. The applicant claims that N was not questioned by the CID until 2011, and then he was able to provide medical evidence about his scarring and convince the CID that he was not recruited by the LTTE. N has remained in Sri Lanka in the family home and the applicant has not claimed that the CID have undertaken any further enquiries, visits or questioning of N since 2011. I am prepared to accept that given his scarring and age, the authorities questioned N in 2011. I am satisfied from the applicant’s evidence that N was able to satisfy the authorities that he was not involved in the LTTE and has not been questioned or harassed since then.

20.    The applicant’s sister, M, was aged 22 when the conflict ended. She was also in the DP camp and then living in the family home until sometime in 2011, when she married an Australian permanent resident and travelled to Australia. The applicant has not claimed that M was ever suspected by the authorities and claims that the LTTE policy was that if there was only one girl in the family, that girl would not be taken. The applicant says that this is why, when the CID finished questioning N, they turned their attention to him and not to M. However, the country information referred to above does not support that the LTTE would not have tried to take the applicant’s sister. On the contrary, the information notes that after 2008, the LTTE altered its policies and required more than one person per family, as well as forcibly recruiting women and children. Nevertheless, while I consider that the country information does not support the applicant’s belief that M was not suspected, I take into account that she came to Australia in 2011. The applicant was unable to confirm exactly when that occurred but I am prepared to accept that as M had left Sri Lanka legally, she could not have been questioned by the authorities.

21.    Although the applicant was only 16 when the conflict ended, I am satisfied from country information in the referred materials that the LTTE did recruit children, both voluntarily and by forced recruitment. It is therefore plausible that as a young Tamil male, the applicant may have come to the attention of the CID as a possible LTTE recruit, particularly once the CID had identified and questioned his elder brother N. On that basis, I am prepared to accept that the CID (or persons who identified themselves as CID) came to the applicant’s workplace in February 2012 and asked him questions about the LTTE. I take into account the applicant’s evidence that this was a relatively brief visit, that he was not taken to a police station and he was not subjected to any mistreatment.

22.    The applicant claims that the CID returned on three further occasions. On one occasion they took him to a nearby alley and questioned him while on another they took him to a deserted house. The delegate asked why they did not take him to the police station and the applicant said that if they did, people would know he was there but if they took him to lonely places, then things could happen to him. The delegate asked why, if the CID suspected he was LTTE, they kept releasing him and did not make him come to the station. He said that only the CID knew the reason for this. The delegate also asked if the CID had asked his employer about him and the applicant said that this had not happened.

23.    I am not satisfied that the applicant has any profile that would identify him as a person of interest to the CID. Even if he had such a profile, I do not consider it is plausible that the CID would continue to visit, question and threaten the applicant but would not take him to the station, collect photographs/ fingerprints, ask questions of his employer or other family members, or undertake any other investigative activities. I do not consider it plausible that the CID returned on two occasions to take the applicant to lonely places to interrogate him. Considering all of the evidence and information, while I accept that the applicant was questioned in the video shop in February 2012, I do not accept that he has been subject to any further visits or questioning by the authorities. It follows that I do not accept that his employer or his family have been visited by the authorities since his departure from Sri Lanka.

24.    While I accept that the applicant may have a subjective fear of the authorities, I find that he does not have any LTTE profile with the authorities, either as a member, supporter, associate, or through any familial association. I find that he does not face a real chance of serious harm for this reason should he return to Sri Lanka.

(emphasis added)

C.    THE PRIMARY JUDGE’S DECISION

17    In his judgment, after setting out some of the background to the proceeding before him, the primary judge noted that the Authority found that s 473DD of the Act was not satisfied. At J[11], the primary judge observed:

The Authority had regard to aspects of the applicant’s submission which referred to information before the delegate and disputed the delegate’s findings. The Authority found s.473DD Migration Act 1958 (Cth)(Migration Act) was not satisfied in relation to the following pieces of new information contained in the submission:

…

b)    the applicant’s claims that his older brother disappeared on 26 October 2016 and that his mother was threatened by police when trying to report the disappearance, and a letter from the Human Rights Commission dated 4 November 2016 that contained these allegations. The Authority acknowledged that these events post­dated the interview with the delegate on 1 September 2016, but noted that the decision was not made until 4 November 2016. It found that although the applicant could not have raised this information at the interview, his evidence was that he was in constant contact with his mother and it was satisfied that he would have found out about the incidents on or around 28 October 2016. The Authority found there was nothing in the referred material to indicate that the applicant tried to contact the Minister’s Department or his representatives to bring these issues to the attention of the delegate. On this basis, it was not satisfied that the issue could not have been raised before the decision was made and that there were exceptional circumstances to justify considering this new information.

18    The primary judge also referred to the HRC letter. At J[22] and J[23], the primary judge stated:

22.    In his brief oral submissions, the applicant took issue with the non­receipt of a letter from the Human Rights Commission of Sri Lanka by the Authority. That letter is reproduced at court book 137 and appears on its face to be a genuine document. It was, however, of limited value to the applicant. Although the letter is evidence of the making of a complaint, it is not evidence of the truth or falsity of that complaint. Further, and in my view importantly, the letter states that the Human Rights Commission has taken necessary steps to provide adequate protection to the applicant's family. If considered by the Authority, that would not have assisted the applicant in the pursuit of his protection application.

23.    In my view, there is no basis to impugn the Authority's finding and explanation for their non-receipt of the letter from the Human Rights Commission. In other respects, I agree with the Minister's submissions concerning the grounds of review advanced.

19    The primary judge then dealt with the five grounds of review argued before him and found that no jurisdictional error had been established. As those grounds are not advanced on this appeal it is not necessary to review his Honour’s reasons for dismissing them.

D.    Notice of appeal

20    The appellant’s notice of appeal sets out two grounds of appeal. At the hearing, the appellant sought leave to rely upon an amended notice of appeal, the effect of which was to abandon the two extant grounds of appeal and to propound only the following ground (as written):

The decision of the Immigration Assessment Authority (Authority) affirming the delegate’s refusal was vitiated by misconstruction and misapplication of section 473DD of the of the Act 1957(Cth).

Particulars

a. The applicant provided a letter from the Human Rights Commission of Sri Lanka about the disappearance of his older brother, to the Authority in support of his claims (HRC letter).

c. The Authority found that the information was new information in substance at [7].

d. The Authority refused to consider the evidence in substance on the basis that s 473DD(b)(i) was not made out in the circumstances. At paragraph 8 the Authority concluded that I am not satisfied that the issue could not have been raised before the decision was made and I am not satisfied that there are exceptional circumstances to justify considering this new information. The Authority failed to assess the case pursuant to 473DD(b)(ii) as to “is credible personal information which was not previously known and, had it been known may have affected the consideration of the referred applicant’s claim.

c. The Authority failed to consider whether s 473DD applied to the evidence.

21    The Minister did not oppose leave being granted to the appellant to file the amended notice of appeal and I will give that leave. During oral submissions Mr Selliah, on behalf of the appellant, indicated that the appellant’s case on appeal was limited to the contended failure of the Authority to consider the new information against the criteria specified in s 473DD(b)(ii) (and not 473DD(b)(i)).

E.    Consideration

Legal framework

22    The Authority’s task was to review the decision referred to it and to affirm that decision or remit it for further consideration: s 473CC of the Act. In doing so, it had before it the information provided to it by the Department under s 473CB of the Act. The Authority was also able to consider new information (as defined in s 473DC of the Act). However, the Authority was forbidden from considering any such information unless the requirements of s 473DD of the Act had been satisfied. Section 473DD provided:

For the purposes of making a decision in relation to a fast track reviewable decision, the [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.

23    In applying s 473DD, the Authority was required to:

11.    … 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.

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).

(AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; (2020) 269 CLR 494 at 502 [11] to [12] (Kiefel CJ, Gageler, Keane and Gordon JJ)).

24    In BXT17 v Minister for Home Affairs [2021] FCAFC 9; (2021) 283 FCR 248, the Full Court of this Court (Markovic, O’Callaghan and Anastassiou JJ) explained at 285 to 286 ([137] to [139]):

137.    In AUS17 the plurality of the High Court set out the way in which the Authority should approach the task of assessing new information for the purposes of s 473DD. Namely, that the Authority must assess new information first against the criteria in s 473DD(b)(i) and (ii), unless the new information in question is not capable of such assessment, and then against the criteria in s 473DD(a). If either or both of the criterion in s 473DD(b)(i) or (ii) is satisfied, that is a circumstance to be taken into account in assessing s 473DD(a) of the Act. Contrary to the Minister’s submission, this is more than “guidance” on the process; the plurality mandated the way in which the assessment of new information is to be undertaken pursuant to s 473DD.

…

139.    … While the plurality in AUS17 does not set out how the Authority should, to adopt the Minister’s term, “structure” its reasons or, put another way, how qualitatively it should address each of the criterion, they do require that the Authority assess the new information against each of the criterion in s 473DD(b)(i) and s 473DD(b)(ii), assuming it is capable of such assessment, and then take the outcome of that assessment into account in its subsequent assessment of the criterion in s 473DD(a): see AUS17 at [11].

25    It is not necessary for the Authority in its reasons to set out its compliance with the above steps as a matter of form. However, it must have considered the new information against the s 473DD criteria as a matter of substance. The position was explained by Markovic J in APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23 at [79]:

[79]    As the Minister submits, notwithstanding the plurality’s statement that “logic and policy” demand that the Authority assess new information obtained from a referred applicant first against the criteria in both s 473DD(b)(i) and (ii) and only then against the criterion in s 473DD(a), it is unnecessary for the Authority to engage in any particular formulaic consideration of s 473DD(b). It will be sufficient if, in a particular case, the Court on judicial review is able to infer from the Authority’s reasons that the requisite assessment has occurred. The question is whether 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).

26    See also CPP17 v Minister for Immigration and Border Protection (No 2) [2021] FCA 199 at [112] (Besanko J); FMA17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 456 at [68] (Kenny J); DQS19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 675 at [27] to [28] (Middleton J); FGI18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 57 at [28] (O’Callaghan J); and DQI17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 106 at [46] to [50] (Middleton J); AOU18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1095 at [50] to [51] (Goodman J); and EEP18 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FCA 682 (Raper J).

Resolution

27    The Authority’s explanation of its decision not to consider the new information for the purposes of making its decision under s 473CC of the Act is set out at R[7] and [8], and reproduced at [15] above. It is clear that the Authority did not refer expressly to it having considered s 473DD(b)(ii) prior to addressing s 473DD(a). However, as noted above, it was not necessary for the Authority to have done so. The question is whether, as a matter of substance, s 473DD(b)(ii) was considered by the Authority prior to its consideration of s 473DD(a).

28    Section 473DD(b)(ii) has three components: (1) the information is “credible personal information”; (2) the information was not previously known; and (3) the information may, if previously known, have affected consideration of the visa applicant’s claims to be a person in respect of whom Australia has protection obligations: see AUS17 at [9]. The Authority must be satisfied of each of these components in order to be satisfied that s 473DD(b)(ii) is engaged.

29    I am persuaded that the Authority did not consider the new information against s 473DD(b)(ii) as a matter of substance before considering s 473DD(a).

30    The structure of R[8] suggests that there was no such consideration. In particular:

(1)    the Authority considered the likelihood that the appellant was aware of the new information, and that he failed to notify the Department of the new information, before the date of the Department’s decision (4 November 2016);

(2)    the Authority then expressed the view that: “On this basis, I am not satisfied that the issue could not have been raised before the decision was made…”;

(3)    that view was expressed in terms which demonstrate that the Authority had in mind the s 473DD(b)(i) criterion: “…the issue could not have been raised before the decision was made…”; and

(4)    the Authority then referred to its non-satisfaction “that there are exceptional circumstances to justify considering this new information”, which is a clear reference to the s 473DD(a) criterion.

31    I do not accept the Minister’s submission that I should infer, from the reference in R[8] to the appellant’s knowledge of the new information and his failure to report it before the decision date, that the Authority had formed a view as to the credibility of the new information. I accept that these matters may have been relevant to the assessment of the new information against the s 473DD(b)(ii) criterion and in particular the credibility of the new information, however I am not satisfied from the mere relevance of these matters to s 473DD(b)(ii) that the new information was considered against that subsection, particularly as: (1) where the s 473DD(b)(i) criterion was considered there is a specific reference to the substance of that criterion; and (2) there is nothing else in the Authority’s reasons which suggests that the s 473DD(b)(ii) criterion was considered (for example, by the expression of a view as to the credibility of the new information as was the case in FGI18 where the Authority expressed doubts as to the genuineness of the new information).

32    Thus, the Authority erred in failing to consider the new information against the s 473DD(b)(ii) criterion.

33    I turn now to consider whether that error was material in the sense that there was a realistic possibility of a different outcome if the error had not been made: see MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506 at 524 [39] (Kiefel CJ, Gageler, Keane and Gleeson JJ).

34    The appellant submitted that the Authority’s error was material because: (1) if the Authority had properly applied s 473DD, it probably would have been satisfied the new information satisfied the s 473DD(b)(ii) criterion; (2) if the Authority had been satisfied that the new information satisfied the s 473DD(b)(ii) criterion and the Authority then turned its mind to s 473DD(a), it may have been satisfied that the new information satisfied the s 473DD(a) criterion; (3) the HRC letter corroborated the central claims of the appellant that the Criminal Investigation Department of the Sri Lanka Police (CID) was interested in the appellant and his family; and (4) thus, there was a real possibility that if the Authority had had regard to the new information together with the existing information before it, it would have been satisfied that the appellant met the requirements for the grant of a protection visa.

35    I am not satisfied that if the Authority had considered the new information against s 473DD(b) before considering s 473DD(a) there would have been a realistic possibility that the Authority would have overturned the delegate’s decision to refuse to grant a visa to the appellant. That is so for the following reasons.

36    First, before the new information could have been considered for the purposes of s 473CC of the Act, the Authority would have needed to have been satisfied that the new information met the s 473DD(b)(ii) criterion and then the s 473DD(a) criterion. In considering the former, I expect that the Authority would have been sceptical as to the credibility of the new information in circumstances where the Authority was satisfied that the appellant was aware of that new information on or about 28 October 2019 but did not submit it to the Authority until 1 December 2016, despite being notified by the Department on 4 November 2016 and by the Authority on 10 November 2016 that he could provide new information to the Authority. The Authority might reasonably have expected that such information would have been reported to it immediately, particularly given its apparent importance to the appellant’s protection claims and the fact that the Minister’s decision was still pending when the appellant learnt of the new information. Further, it is far from clear that if the s 473DD(b)(ii) criterion had been satisfied, the Authority would also have been satisfied that there were exceptional circumstances within the meaning of s 473DD(a), particularly when the Authority was not satisfied that s 473DD(b)(i) had been met.

37    Secondly, if the Authority had formed the view that the new information satisfied s 473DD, then that information would have been considered alongside the other information before the Authority. In my view, there is no realistic possibility that consideration of that information might have produced a different result. In particular, it is difficult to comprehend that the Authority would have formed a different view as to whether the CID considered the appellant to have been a person of interest, when: (1) the Authority did not accept his evidence that the CID had visited him previously (R[22] to [23]); (2) the claimed attendance of the CID at his mother’s residence described in the HRC letter occurred many years after the CID had last (on the appellant’s account) visited him; and (3) the HRC letter is, as the primary judge noted at J[22], evidence only that a complaint was made by the appellant’s mother to the HRC and is not evidence of the truth of that complaint.

38    Further, it is far from clear that the new claims relating to the appellant’s brother suggested that the appellant was at risk, particularly when: (1) the new evidence suggested that the appellant’s brother had disappeared but with no suggestion that this disappearance was linked to the CID, noting that the appellant’s previous evidence was that this brother was not a person of interest to the CID (see R[16]); and (2) there is no apparent connection between the alleged disappearance of the appellant’s brother and the alleged visit by the CID to the residence of the appellant’s mother.

39    In any event, the HRC letter indicates, as the primary judge noted at J[22], that the HRC had “taken necessary steps in providing adequate protection to [the appellant’s mother’s] family members”. There is no reason to doubt that such protection would extend to the appellant.

F.    Conclusion

40    For the reasons set out above, the appeal should be dismissed. I will make orders accordingly.

Associate:

Dated:    12 July 2023