Federal Court of Australia

CCM18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 335

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs as agreed or taxed under 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 (J) of the Federal Circuit and Family Court of Australia in which the primary judge dismissed an application for judicial review of a decision of the second respondent (Authority) which affirmed a decision of a delegate of the first respondent (Minister) refusing to grant the appellant a Temporary Protection (subclass 785) visa.

2    When the Authority undertook its review of the delegate’s decision, it was required to follow the procedures contained in Pt 7AA of the Migration Act 1958 (Cth). The Authority’s review is conducted on the papers (s 473DB) but is subject to natural justice requirements: Div 3 of Pt 7AA. 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.

3    This appeal concerns the approach the Authority was required to take with respect to new information the appellant relied upon regarding his brother’s involvement with the Sri Lankan Tamil organisation, the Liberation Tigers of Tamil Eelam (LTTE). The appellant contends that the primary judge erred by failing to determine that the Authority failed to properly consider this new information in accordance with s 473DD of the Act.

4    For the following reasons, the appeal must be dismissed.

Background

5    The appellant is a citizen of Sri Lanka and is of Tamil ethnicity. He arrived in Australia as an unauthorised maritime arrival on 8 December 2012 (at J[1]), and applied for the visa on 10 September 2015 (at J[2]).

6    The Authority summarised the appellant’s claim for protection as follows (at IAA[17]):

17.     The applicant’s claims, as stated in his TPV application, can be summarised as follows. However, there are discrepancies with this information and other information given by the applicant which will be discussed in the findings:

•    He is a Sri Lankan Tamil male of the Hindu faith from Trincomalee district, Eastern Province. He is one of nine children (six male, three female), his three sisters still live in Trincomalee, and three of his brothers still live in Trincomalee, Sri Lanka.

•    His brother-in-law, M, worked for the LTTE, he went missing, probably killed.

•    After the civil war ended in 2009 the Sri Lankan government sent him to zone 4 detention centre, Vavuniya district.

•    In February 2012, he was released and resettled in his home village in Trincomalee.

•    Every week he had to report to the police station, which was a general rule for all Tamil people who came from the Vanni.

•    He lived with his sister, K (her husband was M), and her two children. The police came to the house searching for M, and treated them with suspicion.

•    The KG, a paramilitary group working with the SLA came to their house to ask him to join them. KG came whenever there was a protest against the United Nations (UN), which was investigating war crimes of the Rajapaksa government. KG offered them free food and lodging if they joined the protest.

•    He refused to join KG because so many of his family members were either killed (his mother, one of his five brothers and his brother’s wife) or wounded (another brother, S) during the war, and because he refused to join he was arrested and locked in a room in a house. The CID, most of whom belong to the KG, came and swore at him and slapped him on the face. He heard others in nearby rooms being beaten and crying. After three days he was released.

•    He moved to a different house with K and her children. Once a month he had to report to the police station.

•    He worked for two years with a private company as a security guard protecting various non-government organisations and Sri Lankan telecom.

•    The police came regularly to his new rented house, so he moved to Jaffna and later he went to Batticaloa where he stayed at his brother’s friend’s house. It was not long before he was harassed and monitored by the SLA, the police and KG coming to his house, abusing them, searching the house. K and her son were also harassed by them about M.

•    In October 2012, he left Sri Lanka and came to Australia.

•    After he came to Australia the CID went to his sister’s house and took his Sri Lankan National Identity Card (NIC) and other documents of his.

•    If returned to Sri Lanka, he fears the SLA, CID or KG will torture and/or kill him because of his Tamil ethnicity, the fact that he lived in the Vanni (home of the LTTE), he refused to join the KG, and because he sought asylum in Australia, they will consider him to be a traitor to his country. Upon return, he will not have a NIC, and he fears being arrested at the airport and detained.

7    Notably the claim for protection, did not include any claim relating to the appellant’s brother’s level of involvement with the LTTE.

8    On 21 July 2017, a delegate of the Minister refused to grant the appellant a visa. Thereafter the appellant’s matter was referred to the Authority for review, by operation of Pt 7AA of the Act.

9    On 20 September 2017, the appellant’s representative provided the Authority with a submission, which included, inter alia, that the representative had been:

recently informed by [the appellant] that [the appellant’s brother] was a high ranking LTTE member (photographic evidence attached). He joined the LTTE in 2000 in the Imran Pandiyan Regiment and the Radha Regiment. His brother has also fled Sri Lanka and is currently seeking protection in Australia. His brother had warned [the appellant] that he should not disclose to the Australian authorities details of his LTTE involvement.

10    The representative submitted, addressing what he understood was required under s 473DD, that the appellant, “had satisfactory reasons for not disclosing” this information earlier, namely that he had been specifically told by his brother “not to mention his LTTE claims”, which it was submitted “should suffice as a satisfactory reason for not disclosing the information, given the serious consequences for his brother, in Australia, with known LTTE involvement”. Further, the appellant’s representative submitted that negative inferences should not be drawn regarding this late disclosure given the appellant was unrepresented at his protection visa interview and had been abandoned by his then agent during this “extremely stressful and vital” time of the visa application process.

Part 7AA and section 473DD

11    The Authority is required to adopt the procedures prescribed in Pt 7AA of the Act when undertaking a review of a decision referred to it by the Minister under s 473CA of the Act. That procedure has been described in previous authority: AWB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 983 at [14]–[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.

12    The Authority may only consider “new information” that was not before the delegate in the circumstances specified in s 473DD. Section 473DD provides:

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.

13    The High Court has recently considered the approach to be taken by the Authority when considering new information in AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; 269 CLR 494. In that case, Kiefel CJ, Gageler, Keane and Gordon JJ explained:

[10]    Section 473DD would be at war with itself, and the purpose of s 473DD(b)(ii) would be thwarted, if the circumstance that there was new information from a referred applicant meeting the description in either s 473DD(b)(i) or s 473DD(b)(ii) were able to be ignored by the Authority in assessing the existence of exceptional circumstances justifying consideration of that new information in order to meet the criterion specified in s 473DD(a).

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

[12]    The result, as has been recognised by the Federal Court in numerous other cases, is that the Authority does not perform the procedural duty imposed on it by s 473DD in its conduct of a review if it determines in the purported application of the criterion in s 473DD(a) that exceptional circumstances justifying consideration of new information obtained from the referred applicant do not exist without first assessing that information against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and then taking the outcome of that assessment into account in its assessment against the criterion specified in s 473DD(a). The nature of the non-performance of the procedural duty in such a case is not inaccurately characterised as a failure to take account of a mandatory relevant consideration in the purported application of the criterion in s 473DD(a).

(Footnotes omitted).

The Authority’s decision

14    Only that portion of the Authority’s reasons which relates to the provision of new information is relevant to this appeal. Under the heading “Information before the IAA”, the Authority referred to information that was before and not before the delegate. The new information concerned first new information about the applicant’s sister-in-law, new information regarding the appellant’s fear of persecution by paramilitary groups (both of which are not relevant to this appeal) and then information that referred to the applicant’s brother, using the pseudonym “S”.

15    The Authority described this new information concerning the appellant’s brother as follows:

8.     The 20 September submission is presented as new information. In summary, the applicant claimed his brother, S, who is also in Australia and has applied for protection, was a high ranking LTTE member. The applicant claimed he did not mention this earlier because S specifically told him not to mention his LTTE claims. The applicant’s representative, who did not represent the applicant before the delegate made the decision, said they were only recently informed of this claim, and because the applicant was not represented at the PV interview he did not have an adequate opportunity to present all of his claims. Furthermore, that the migration advice given to the applicant prior to the interview may have been insufficient, and his current representative does not know how aware the applicant was of the importance of disclosing such claims, despite the problematic nature of S’s involvement in the LTTE.

9.     It is claimed that the applicant and S were both fearful of disclosing the involvement with the LTTE because of the serious mistreatment and persecution of those with LTTE links in Sri Lanka by the authorities. They feared the impact that disclosing such information would have on their visa applications, given that some suspected members of the LTTE have been placed in indefinite detention by Australian security services. The applicant’s representative claimed that it is plausible that this unrepresented applicant had such fears of talking frankly about S’s involvement with the LTTE in his initial interactions with the Australian Government authorities. And when the applicant’s claims are considered in their entirety, there is no reason to doubt the veracity of his claims.

16    As is apparent from the Authority’s summary of the new information, it is predicated on the belief of the representative that the appellant had not, in the protection visa interview, had an “adequate opportunity to present all of his claims”, notably his claims regarding his brother S.

17    However, the Authority found, contrary to the submission of the appellant’s representative, that, rather than not disclose information in that interview regarding his brother (by reason of what his brother had purportedly told him), the appellant had disclosed in his visa interview that his brother was very much involved with the LTTE (at IAA[10]):

However, this is not all new information despite what the applicant’s representative has argued because the applicant did disclose S’s involvement with the LTTE in the PV interview, although not in writing. In the PV interview, the applicant said that it was only after 2009 that they had problems because his brother-in-law was in the LTTE and his brother was with them and because of that they, he, faced problems after 2009, only. He also claimed, they used to come and search for his brother-in-law and his brother, and because of that he had to go and sign during that time (after the war). The delegate said to the applicant: during the war, when the LTTE controlled Vanni, did you have any interaction with them, did you join the LTTE? The applicant said he did not join them but because they fought for us, whenever they asked us to come and help them to cut the bunkers, to bring the food and all, he used to do that, his brother-in-law and his brother only were very much involved with them. Then, towards the end of the interview the applicant stated that, because of his brother-in-law and his brother they tortured him when he was there so if he had to go back, he knows that they will torture him again looking for these two people.

18    The Authority then, having considered what was disclosed in the Protection Visa interview, described the “new information” now being disclosed as (at IAA[11]):

… S was a high ranking LTTE member, S joined the LTTE in 2000 in the Imran Pandiyan Regiment and the Radha Regiment, and the two photographs, one purportedly being a photograph of S in LTTE uniform. There is no accompanying description of the two photographs.

19    The Authority noted that whilst the appellant was unrepresented when he participated in his protection visa interview with the Department, it was five years after arrival. The delegate afforded the appellant the opportunity to add, change or correct information or claims he had already put forward. The appellant was also warned that if he did not state his claims in full, he may not have an opportunity to discuss his claims again. Given the same, the Authority was not satisfied that the appellant was unaware of the importance of disclosing claims about his brother’s LTTE involvement: at IAA[12].

20    The Authority went on to make the following findings for the purposes of s 473DD of the Act, finding that the circumstances did not satisfy either of the criteria under s 473DD(b), nor the criterion under s 473DD(a):

13.     Noting that the applicant already divulged information about S’s involvement with the LTTE, the applicant has not explained why it is that with the aid of a legal representative, the reasons why he claimed to fear divulging information about his S’s involvement in the LTTE no longer exist, if they ever did exist. He has not stated whether S has now allowed him to disclose this new information. I do not accept the applicant would not have disclosed this additional information before, if it was true, because he and S feared the serious mistreatment and persecution of those with links to the LTTE in Sri Lanka which prevented him from giving this information. I am not satisfied this new information, if it were true, could not have been given to the delegate before the decision was made.

14.     Additionally, the applicant did not state what “high rank” his brother held in the LTTE. Other than providing two photographs, which he claimed to be photographic evidence that his brother was in the LTTE, and that his brother joined the LTTE in 2000 in the Imran Pandiyan Regiment and the Radha Regiment, the applicant did not give any other detail or corroborating information. Previously, the applicant claimed the following about S in writing:

a.     “During the war President Rajapaksa, told the Tamil people to go to a Free Zone Area in the north of Sri Lanka which he said was a safe place. Many Tamils went to this place and then the Sri Lankan army shelled and dropped bombs on this area. That is how A (one of his brothers) was injured and later died from his wounds. My brother S was also wounded. He moved to India. At first we lost contact with him but he is now living in Sydney, Australia.”

15.     The context of the information already given about S suggests that S was wounded towards the end of the war while seeking refuge with his other family members in a Free Zone Area. The applicant has not explained whether the new information about S alters any of the information he previously gave about S, including how he was wounded and that he moved to India. I am not satisfied the new information about S being a high ranking LTTE member is credible personal information, which had it been known, may have affected consideration of the applicant’s claims because it lacks detail or elaboration, and when considered against the entirety of the applicant’s claims, does not conform with them even though he claimed in the PV interview that his brother was in the LTTE.

16.     Overall, I am not satisfied the new information about S being a high ranking LTTE member is true. For this reason, I am not satisfied there are exceptional circumstances to justify considering the new information, and I have not considered it.

The primary judgment

21    By way of an amended application, the appellant sought judicial review of the Authority’s decision on two grounds. The second ground is the only one that has bearing on this appeal, and was framed in the following way below:

2.     The Second Respondent failed to give proper consideration to ‘new information’ pursuant to s.473DD of the Migration Act 1958 (Cth).

Particulars

a)     At [15] of its decision, the Second Respondent refused to accept new information regarding the Applicant's brother which had been provided by the Applicant in support of his fears of harm based on actual and implied political opinion, on the basis that they did not meet the requirements of s.437DD of the Act.

b)     The Second Respondent committed jurisdictional error in rejecting the Applicant's claim that his brother was a high-ranking member of the LTTE as:

i.     the authority applied an incorrect and unduly narrow test for whether there were exceptional circumstances under s.437DD by confining its consideration of the new matter to whether the new information:

i.     was not and could not have been provided to the delegate before she made her decision;

ii.     was credible personal information which was not previously known.

ii.     the authority did not consider or otherwise evaluate the importance of the new information in the context of the Applicant's claims, particularly his claim to have a well-founded fear of persecution by reason of his familial associations with the LTTE.

iii.     the authority did not engage in an active intellectual process in relation to assessing the significance of the new information or otherwise give it genuine consideration.

iv.     the authority failed to give consideration to or otherwise access evidence from the Applicant's brother's application for protection.

c) The strong familial links to the LTTE were material to whether the Applicant faced a real chance of harm because his risk profile was different to that of an ordinary person in Sri Lanka and, as such, was an integer of the Applicant's claim for protection.

d) The matters referred to above at (a)-(c) were material to the outcome of the Second Respondent's decision to affirm the refusal of the Applicant’s visa application. Consequently, the Second Respondent's decision was affected by jurisdictional error.

22    When dealing with the second ground, the primary judge began by noting that s 473DD of the Act requires the Authority to, first, “see whether or not the provisions of s 473DD(b)(i) and (ii) are satisfied in order to the consider if there are exceptional circumstances to justify the admission of the new information”: at J[43], citing AUS17 at [11].

23    The primary judge summarised the Authority’s findings at IAA[11]–[16] (at J[44]–[49]). The primary judge considered the Authority’s statement at IAA[13] to address the criterion in s 473DD(b)(i) (ie, whether the new information was not, and could not have been, provided to the Minister before the Minister’s decision was made). His Honour also considered that the Authority addressed s 473DD(b)(ii) (ie, whether the new information is credible personal information which was not previously known and, had it been known, may have affected the consideration of the appellant’s claims) at IAA[15].

24    Before the primary judge, the appellant submitted that the Authority wrongly found that the new information was not true and, as such, mis-instructed itself as to the meaning of the word “credible” in s 473DD(b)(ii): at J[50]. The appellant contended that all the Authority was required to consider was whether or not the information was capable of belief and that, at the “filtering stage”, the Authority should not have determined the veracity of the information before it: at J[50]. The appellant relied upon Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020] FCAFC 159; 294 FCR 150 at [37] per Mortimer and Jackson JJ, where their Honours extracted a passage from CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 as follows:

In CSR16, the Authority had construed the word “credible” as meaning “true”. At [40]-[43], Bromberg J found:

40     An alternative construction for the use of the word “credible” in the phrase “credible personal information”, is that it has a meaning consistent with the meaning given to the word in a setting somewhat akin to that found in s 473DD(b)(ii), that is, in the expression of one aspect of the natural justice hearing rule. I addressed the meaning of “credible” when used in that context in Gbojueh v Minister for Immigration and Citizenship [2012] FCA 288 at [79], where I said this:

The basic principle is that persons whose interests are likely to be affected must be given the opportunity to deal with any matters relevantly adverse to their interests, which the decision-maker proposes to take into account: VAAD at [56]. That opportunity need only be given in relation to information that Brennan J described in Kioa v West (1985) 159 CLR 550 at 629 as “credible, relevant and significant”. “Credible, relevant and significant”, is to be understood as referring to information which cannot be dismissed from further consideration by the decision-maker before the making of the decision. That is, information which is “evidently not credible, not relevant, or of little or no significance to the decision that is to be made”: VEAL at [17] and see at [20].

41     In my view all that the “credible” element of the s 473DD(b)(ii) criteria requires is the Authority’s satisfaction that the “new information” is information which is open to be or capable of being accepted by the Authority as truthful (or accurate, or genuine). It is only at the deliberative stage of its review that the Authority will be required to determine whether or not the “new information” is true. The s 473DD(b)(ii) criteria is concerned with an earlier or anterior stage of the review directed at whether “new information” should be received by the Authority so that it may be considered at the deliberative stage.

42     The criteria is a filtering mechanism designed to separate information worthy of consideration at the deliberative stage from that which is not. In that context, the word “credible” is used in relation to information, not in the sense that the information is believed, but in the sense that the information is capable of being believed. It is only information that the Authority is satisfied is “evidently not credible” (VEAL v Minister for Immigration and Multicultural Affairs (2005) 225 CLR 88 at [17] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ) that fails to meet the credibility requirement imposed by the s 473DD(b)(ii) criteria.

43     The Authority determined that the “new information” that the appellants sought to have it consider did not meet the s 473DD(b)(ii) criteria by imposing a higher standard of satisfaction than the criteria requires. The Authority required satisfaction that the “new information” was true when all that the s 473DD(b)(ii) criteria requires is the Authority’s satisfaction that the new information is capable of being believed at the deliberative stage of the Authority’s review. In so doing the Authority misconstrued s 473DD(b)(ii) and misconceived what the exercise of its statutory power entailed. The Authority thereby fell into jurisdictional error: Graham v Minister for Immigration and Border Protection; Te Puia v Minister for Immigration and Border Protection [2017] HCA 33 at [68] (Kiefel CJ, Bell, Gageler, Keane, Nettle, and Gordon JJ); Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at [82] (Gaudron J) and [196] (Gummow and Hayne JJ).

25    The Minister, on the other hand, relied upon the statement of Mortimer and Jackson JJ in BTW17 at [81], which is as follows (see J[51]):

As we have explained in the consideration of ground 1, the Authority is required to be satisfied the new information is “capable of being believed”. That means, conversely, the Authority is able to decide that the new information is not capable of being believed.

(Emphasis in original.)

26    The primary judge’s findings with respect to this ground are as follows:

52     The Court is satisfied that the Authority went about its task in accordance with the majority’s reasons in AUS17. The Authority first found that it was not satisfied that the information, if it were true, could not have been given to the delegate before the decision was made, thus dealing with s 474DD(b)(i) of Act.

53     The Authority then turned its attention to a requirement under s 473DD(b)(ii) of the Act, and found that the information was not “credible personal information which was not previously known”. The Authority concluded there was no reason why the applicant, bearing in mind, he disclosed in the Protection visa interview that his brother was involved with the LTTE, that he could not have further disclosed the claim that he was a high-ranking officer within the LTTE.

54     On undertaking this task, Tribunal then correctly found under s 473DD(a) of the Act that there were not exceptional circumstances to justify considering the new information. In considering whether or not the Authority mis-instructed itself as to its task, it is important to remember that the Authority’s reasons are not to be read with “an eye finely attuned to error. The Court is not satisfied in considering whether not the information was credible, it committed an error such as to amount to jurisdictional error by finding that the information was not true. The use of the word true, as compared to credible in the Court’s view, is simply another way of expressing the same proposition that the information was not credible. In these circumstances, the Court is not satisfied that ground two discloses jurisdictional error.

55     The Court is also satisfied, that even if there were some error in the Authority’s consideration of the “exceptional circumstances” test, it would not have resulted in a different outcome. In circumstances where the Authority concluded that the new information was not true, the Court is not satisfied that it would have impact upon the ultimate decision of the Authority.

The appeal

27    The appellant advances one ground of appeal in this Court, which is analogous to the second ground of judicial review propounded before the primary judge:

The Federal Circuit and Family Court of Australia erred in that it failed to determine that the Second Respondent failed to give proper consideration to ‘new information’ pursuant to s.473DD of the Migration Act 1958 (Cth).

Particulars

a)     At [15] of its decision, the Second Respondent refused to accept new information regarding the Appellant's brother which had been provided by the Appellant in support of his fears of harm based on actual and implied political opinion, on the basis that they did not meet the requirements of s.437DD of the Act.

b)     The Second Respondent committed jurisdictional error in rejecting the Appellant's claim that his brother was a high-ranking member of the LTTE as:

i.     the authority applied an incorrect and unduly narrow test for whether there were exceptional circumstances under s.437DD by confining its consideration of the new matter to whether the new information:

i.     was not and could not have been provided to the delegate before she made her decision;

ii.     was credible personal information which was not previously known.

ii.     the authority did not consider or otherwise evaluate the importance of the new information in the context of the Appellant’s claims, particularly his claim to have a well-founded fear of persecution by reason of his familial associations with the LTTE.

iii.     the authority did not engage in an active intellectual process in relation to assessing the significance of the new information or otherwise give it genuine consideration.

iv.     the authority failed to give consideration to or otherwise access evidence from the Appellant's brother's application for protection.

c)     The strong familial links to the LTTE were material to whether the Appellant faced a real chance of harm because his risk profile was different to that of an ordinary person in Sri Lanka and, as such, was an integer of the Appellant’s claim for protection.

d)     The matters referred to above at (a)-(c) were material to the outcome of the Second Respondent’s decision to affirm the refusal of the Appellant’s visa application. Consequently, the Second Respondent’s decision was affected by jurisdictional error.

Consideration

28    It was difficult to follow the appellant’s written and oral submissions as they bore no symmetry with the particulars of his grounds of appeal. However, at hearing, the appellant accepted that the alleged jurisdictional error arising from the Authority’s approach to its task as required under s 473DD, which the primary judge failed to find, manifested by reason of the following four matters.

29    First, criticism is made of the Authority’s dissatisfaction with the appellant’s reasons (at IAA[12] and [13]) for not providing the information previously. As extracted above, in this portion of the reasoning, the Authority was not persuaded by the appellant’s explanation (as to why he had not previously disclosed this information concerning the appellant’s brother). Part of the Authority’s dissatisfaction arose from the fact that despite the appellant’s purported silence being because of what his brother had warned him, he had in fact disclosed his brother’s association with the LTTE in the protection visa interview. The appellant submitted that no consideration was given by the Authority in this context to the circumstances in which the appellant attended that interview (without representation and where the interview became disjointed and confused).

30    It is apparent from IAA[12] and [13] that the Authority was considering the first limb of s 473DD(b), being s 473DD(b)(i). The determination of why the new information was not, and could not have been, provided to the Minister, is part of the two limbs, one of which must be established before consideration is given whether there are exceptional circumstances to justify the consideration of new information: s 473DD and AUS17 at [11]. The Authority was considering what was required of it.

31    No persuasive submission was made as to how this alleged failure, even if it occurred, could constitute an error in the Authority’s approach to the task required of it under s 473DD. The Authority had made multiple references in its reasons to the September submission regarding the new information: IAA[4] and [8]. The appellant conceded also that the Authority, later in its reasons, noted the confused and disjointed nature of the appellant’s answers as part of his interview and took this into account when assessing his evidence: IAA[20]–[21]. It is unsurprising that the IAA did not mention this submission regarding the appellant’s interview being disjointed and confused as part of its consideration of the new information. This is because it did not form part of the appellant’s submission concerning the new information and did not form part of the purported explanation for why the appellant had not mentioned that his brother was a high-ranking LTTE member. The issue was the inconsistency between what the appellant said in his September submission as to why he had not referred previously to his brother being a high ranking LTTE member or his “LTTE claims” (purportedly because his brother had warned him not to) and the fact that he had referred to his brother’s links with the LTTE in the protection visa interview.

32    As part of this submission, the appellant asserted that the IAA had made an erroneous factual finding when identifying what it said comprised the “new information” at IAA[8]. The alleged error was its description of the appellant’s brother S “as a high ranking LTTE member” when the Authority purportedly should have described him as a high ranking LTTE officer. I do not accept that the use of this descriptor was an error at all. The appellant, through his representatives, in his 20 September submission referred to S as being “a high ranking LTTE member”. It cannot be inferred from the IAA reasoning that the Authority did not understand that he was an “officer”. The Authority understood that it was alleged that S was “high ranking” within the LTTE organisation.

33    Secondly, issue is taken with the Authority’s approach to s 473DD(b)(ii) and finding that the new information was not credible information (and therefore did not satisfy the second criterion: s 473DD(b)(ii)) because it lacked detail and elaboration and did not conform with the entirety of the appellant’s claims: IAA[15].

34    The error was said to have manifested (in part by repeating earlier submissions) by a failure of the Authority to consider the extent of the information already before it which was consistent with the new evidence (reference was made to the applicant’s visa application, and to the protection visa interview transcript). I do not accept this submission. I note that at the hearing of this appeal, the appellant conceded that the extent to which the information was detailed could have bearing on the question of whether it is “credible” within the meaning of s 473DD(b)(ii). I can discern no error in the Authority’s reasons.

35    It was also contended that consideration should have been given, when considering the credibility of the personal information, to the circumstances of and apparent “confusion” arising as part of the interview process. For the reasons given above, I reject this submission.

36    It appeared, though the submission was imprecise, that the appellant also contended the Authority erred when approaching its task regarding the credibility of the new information by reason of the purported factual error in IAA[8], namely that S was a LTTE officer, not just a LTTE member. This was submitted to have bearing on the extent of the appellant’s profile and interest to the authorities. For the same reasons as above, I reject this submission. The Authority understood the claim to be that the brother was high-ranking, this was the critical issue.

37    The appellant also submitted that the Authority erred in the approach it took to its statutory task under s 473DD(b)(ii), because IAA[15] and [16] had to be read together, such that the Authority erroneously went down the path of assessing the veracity of the appellant’s claim and made credibility findings at an anterior stage when it was only charged at that stage with determining whether the new information was “open to be or capable of being accepted by the Authority as truthful” (citing the Full Court’s holding in BTW17 at [37], in turn citing with approval CSR16 at [41]).

38    I do not accept that the paragraphs should be read in that way. The Authority considered in a sequential way the criteria under s 473DD(b) before the criterion under s 473DD(a). There is a distinction between the reasoning in IAA[15] and IAA[16] by not only the deployment of a newly formatted paragraph but the use of the adverb “[o]verall” at the beginning of the sentence, to mean, taking into account everything. This was an orthodox way, consistent with holding in AUS17, to then go on to consider the s 473DD(a) limb.

39    The appellant sought to rely on the holding in AZT22 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 90 at [55]. However, I do not consider it to be of assistance in the circumstances of this case. The Authority’s reasons in that case were crafted very differently. There was no clear demarcation between the consideration (and rejection) of the new information and the Authority’s overall consideration of the evidence. Furthermore, contrary to what was found in AZT22, the Authority made no findings with respect the appellant’s claims (as they arose from the new information) until dealing with the s 473DD(a) limb, but rather merely recognised what the claims were.

40    The Authority’s reasoning at IAA[15] must be read with IAA[14], it was open for the Authority to find that the appellant had not explained how the appellant’s brother’s profile coheres with the new claim, or the new information coheres with the appellant’s narrative. In AZT22, Banks-Smith and Jackson JJ acknowledge that during the procedural stage of assessing whether new information is credible, this process is not “divorced from the overall deliberative review process”. There is an overlap: AZT22 at [20] and [65]. However, what cannot occur is the Authority making a fresh decision using new material which might ultimately be excluded. At the later, deliberative stage, the Authority, being satisfied that it can take into account the new information, must then consider that new information along with the review material provided by the Secretary, and undertake a fresh review of the visa refusal decision: AZT22 at [24]. I can discern no error of this kind in the Authority’s reasons.

41    Thirdly, in the context of considering IAA [12] and [13] it was submitted that dissatisfaction with a reason for not previously disclosing the information is not an answer to the question of “exceptional circumstances” and there was a need for the Authority to consider those “factors leading to the reason” under s 473DD(a). However, this submission appears contrary to the holding in AUS17 above. The High Court has held that logic and policy demand that the Authority assess such new information first as against the criteria in s 473DD(b). If the Authority is not satisfied that the new information falls within that criteria it is then prohibited from taking the new information into account when making its decision, it does not need to go on to consider whether there are “exceptional circumstances” under s 473DD(a): AUS17 at [11].

42    Fourthly, when addressing “exceptional circumstances” (s 473DD(a)) it is submitted that the IAA’s decision confuses the issues by determining that the new information about the appellant’s brother is “not true”: IAA [16].

43    The appellant conceded that in the event that I can discern no error in the Authority’s approach to the two limbs under s 473DD(b), then whether or not there is error with respect to s 473DD(a) is immaterial, because the Authority, by reason of the holding in AUS17 at [11], is prohibited from going that step further. Accordingly, given my findings above, there is no need for me to go on to consider this contention.

44    However, to the extent that I am wrong with respect to the above, and concerning the materiality issue, consistent with my reasoning above, a fair reading of IAA[16] is that the Authority, when considering whether exceptional circumstances existed, expressed a view about the truthfulness of the claims. It is my view, in this context, that the Authority was able to express such a view, noting that a broad meaning is to be given to the words “exceptional circumstances”: Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; 257 FCR 111 at [104]. The Authority could, despite having determined whether the information was credible according to the lower threshold, go further and express a conclusion about the truth of any new information presented: DLB17 v Minister for Home Affairs [2018] FCAFC 230 at [22].

45    Furthermore, and separately, given the Authority made no credibility finding against the appellant with respect to the rest of its reasons, any error associated with the findings regarding the truthfulness of the appellant’s claims regarding S could not have reasonably affected the outcome.

Conclusion

46    For these reasons, the appeal must be dismissed with costs.

Associate:

Dated:    5 April 2024