Federal Court of Australia

EMX18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 548

ORDERS

THE COURT ORDERS THAT:

1.    The application to amend the notice of appeal is dismissed.

2.    The appeal is dismissed.

3.    The appellant must pay the first respondent's costs of the proceeding, fixed at $5,000.

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

REASONS FOR JUDGMENT

JACKSON J:

1    The appellant is a 34-year-old citizen of Pakistan. He arrived in Australia in 2013. In 2017, he applied for a protection visa, which was refused by a delegate of the first respondent, the Minister. The delegate's decision was then referred to the Immigration Assessment Authority for review. On 6 August 2018, the Authority affirmed the delegate's decision. On 19 October 2021, a judge of the Federal Circuit and Family Court of Australia (Division 2) (FCFCOA) dismissed an application for judicial review of the Authority's decision.

2    It appears that the appellant received legal assistance in the formulation of his grounds of review in the FCFCOA, however he was not represented at the hearing in that Court. He was also not represented when he filed his notice of appeal in this Court, but he has since become legally represented and seeks leave to rely on an amended notice of appeal.

3    The proposed new grounds of appeal raise points that were not raised in the FCFCOA. By them, the appellant proposes to contend that the Authority erred in the way that it treated information that may have been 'new information' as defined in s 473DC(1) of the Migration Act 1958 (Cth). The information was to the effect that after the delegate made the decision to refuse a protection visa, the appellant married an Australian citizen.

4    For the following reasons, leave to advance the new grounds will not be given and the appeal will be dismissed, with costs.

The delegate's decision

5    In his application for a protection visa, the appellant claimed that he is unable to return to Pakistan on account of being a Shia Muslim, of being of Pashtun ethnicity, and due to his previous employment with a non-governmental organisation, the Community Rise Program.

6    The delegate found that the appellant did not have a well-founded fear of persecution on the basis of his previous employment or a real chance of persecution on account of his ethnicity. The delegate found that while the appellant would have a real chance of persecution on account of being a Shia Muslim if he returned to his home area in Pakistan, that chance would be removed if he were to relocate to Islamabad, Lahore or Rawalpindi. The delegate found that it was reasonable for the appellant to relocate to one of those areas.

7    The delegate therefore refused the appellant's application for a protection visa on the ground that he was not a person in respect of whom Australia owes protection obligations.

The Authority's decision

8    The delegate's decision was a 'fast track reviewable decision' for the purposes of Part 7AA of the Act, and so was referred to the Authority for review under that Part.

9    Before the Authority made its decision, the appellant's representative provided written submissions, which the Authority received and took into account. A little over two months later, the representative sent an email to the Authority attaching a Certificate of Marriage. How the Authority dealt with that information is the subject of the proposed grounds of appeal.

10    The email from the appellant's representative to the Authority, which was dated 7 February 2018, said:

Dear Officer,

I refer to above named applicant and provide additional information.

Applicant informs us of change in his personal circumstances. He is married to an Australian Citizen on 27 January 2018. He will provide registered marriage certificate as soon as it is received.

Attached is evidence of his marriage.

Should you have any questions or need any assistance please do not hesitate to contact our office.

11    Attached to the email was a certificate of marriage showing that the appellant had married the person said to be an Australian citizen on 27 January 2018. I will refer to this information, that is the certificate and what was said about it in the email to the Authority, as the marriage information.

12    It is unnecessary to describe the Authority's reasons in full, as the amended grounds of appeal only concern a small part of those reasons. The paragraphs in issue, being those dealing with the marriage information, are as follows:

14.    On 7 February 2018, the office of the applicant's representative provided a copy of a marriage certificate dated 27 January 2018. The covering email indicates that this is additional information provided as evidence of a change in the applicant's personal circumstances in the form of his marriage to an Australian citizen. There is no indication as to why this document and information regarding the applicant's marriage has been provided, or how it relates to the applicant's claims for protection. I note that the applicant undertook, by signing the SHEV application form, to advise the department of any changes to his personal circumstances, including his relationship status. It may be that this information has been provided with the intention of satisfying that requirement.

15.    The relevance of this document, and the advice that the applicant has married an Australian citizen, to the applicant's claims for protection is unclear. There is therefore some doubt as to whether this is new information. However, if it is new information, for similar reasons I am not satisfied that there are exceptional circumstances to justify considering it.

13    The Authority found that, while the appellant may face a real chance of harm in some areas of Pakistan, that would not be the case if the appellant were to relocate to Islamabad, and it would be reasonable for the appellant to do so (unlike the delegate, the Authority did not find that it would be reasonable for the appellant to relocate to Lahore or Rawalpindi). The Authority found that affordable accommodation would be available. The Authority also found that the appellant would be able to secure employment in Islamabad, given his Urdu language skills and his employment experience. The appellant's inability to speak Punjabi, and his lack of family or other connections in Islamabad, were not considered significant enough to prevent him from establishing himself there.

The FCFCOA decision

14    There was one ground of review before the FCFCOA, which asserted legal unreasonableness on the part of the Authority in failing to seek out, or failing to consider seeking out, information about the appellant. It is unrelated to the issues raised by the proposed new grounds.

15    If leave were not to be given to pursue the new grounds, the appellant would be left with his original ground of appeal: 'The federal circuit made ERRORS' (capitalisation in original). That is generic and unparticularised and must fail.

16    It is therefore unnecessary to describe or consider the primary judge's reasons for decision.

The basis for seeking leave to rely on new grounds

17    It is convenient to repeat the summary given in AXD21 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 912 of the principles for granting leave in an appeal to rely on grounds not advanced in the court below:

[22]    The principles concerning leave to raise grounds in migration appeals that were not grounds of appeal in the court below are well established. It must be expedient in the interests of justice to grant leave: O'Brien v Komesaroff (1982) 150 CLR 310 at 319; VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 at [46]. It is fundamental to the due administration of justice that the issues between the parties are ordinarily settled at the trial, which must not be permitted to become merely a preliminary skirmish: Coulton v Holcombe (1986) 162 CLR 1 at 7; VUAX at [47].

[23]    To determine an appeal on grounds that were not considered in the court below can be to deny a level of appellate scrutiny to the party that is unsuccessful in this Court, as its only recourse will then be to seek special leave to appeal to the High Court: see AAM15 v Minister for Immigration and Border Protection [2015] FCA 804; (2015) 231 FCR 452 at [14] (Perram J). On the other hand, there is a particular sensitivity in refugee cases where an adverse decision may have very serious consequences for an appellant: Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788 at [22] (Heerey, Moore and Goldberg JJ); MBJY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 11; (2021) 284 FCR 152 at [90] (O'Callaghan and Colvin JJ, Allsop CJ agreeing). The overriding concern must always be the broad one of the interests of justice.

[24]    In VUAX at [48] the Full Court said:

The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. In our view, the proposed ground of appeal has no merit. There is no justification, therefore, for permitting it to be raised for the first time before this Court.

[25]    Also, 'generally speaking, leave is more likely to be granted to permit a fresh issue to be raised on appeal where the new point turns only upon a question of construction or upon a point of law, or where the facts are not in controversy': Murad v Assistant Minister for Immigration and Border Protection [2017] FCAFC 73; (2017) 250 FCR 510 at [20] (Griffiths and Perry JJ).

18    Here, the appellant mentions that he had some legal representation in the FCFCOA, although he was self-represented at the hearing. His counsel candidly admits that there is no good reason for the grounds not to have been raised below. But, he says, there is no prejudice to the Minister, the proposed grounds have merit, and it is relevant that the subject matter of the appeal is a protection visa application. On that basis, he seeks leave to rely on the new grounds.

19    The Minister opposes leave on the basis that since the appellant did have legal assistance in preparing his ground of review in the FCFCOA, it can be assumed that the omission to raise the proposed new grounds was a forensic choice. He points out that absence of prejudice is not a sufficient reason to grant leave and in any event the Minister will be prejudiced in that, if the appeal is allowed on the new grounds, his only avenue of redress will be to seek special leave to appeal to the High Court. He submits that generally the fact that new lawyers have been retained and have taken a 'fresh look' at the matter is not, of itself, sufficient to justify a grant of leave, citing BLX16 v Minister for Immigration and Border Protection [2019] FCAFC 176 at [31].

20    Of course, each case turns on its own facts. In BLX16 at [31] the Full Court's observation about new lawyers having a fresh look, in context, was as follows:

We consider that the grounds of appeal have some merit. Although generally the fact that new lawyers have been retained and have taken a 'fresh look' at the matter would not, of itself, be sufficient to justify a grant of leave, in the circumstances of the present case, including the position adopted by the Minister and our view that the grounds have some merit, we will grant the appellant leave to rely on the two grounds set out in the amended notice of appeal.

There, the Minister had consented to leave to pursue one new ground and did not oppose leave to pursue another. So the merit of the grounds was also a relevant factor; the point the Full Court made in passing was that the fact that there were new lawyers was not by itself enough to justify leave.

21    With the consent of both parties, I permitted full argument on the merits of the proposed new grounds and reserved the decision as to whether to grant leave to advance them. It is therefore appropriate to canvass the new grounds and the principles applicable to them before determining the question of leave.

The statutory provisions

22    It is convenient at the outset to set out the sections of the Migration Act that govern the Authority's receipt and consideration of new information for the purposes of Part 7AA, as they are necessary to understand the appellant's case:

473DB    Immigration Assessment Authority to review decisions on the papers

(1)    Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB:

(a)    without accepting or requesting new information; and

(b)    without interviewing the referred applicant.

(2)    Subject to this Part, the Immigration Assessment Authority may make a decision on a fast track reviewable decision at any time after the decision has been referred to the Authority.

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 proposed new grounds

23    Ground 1 of the notice of appeal is the generic one already mentioned, which is proposed to be deleted. Counsel for the appellant helpfully and properly withdrew proposed grounds 4 and 5, after hearing the argument of counsel for the Minister. That leaves the following as the proposed new grounds:

2.    The Second Respondent (Authority) made a jurisdictional error by failing to form a state of satisfaction about whether information it had received, namely that the Appellant was married to an Australian citizen (the information), was new information as defined in s 473DC(1) of the Migration Act 1958 (Cth) (Act).

Particulars

a.    The Authority set out its reasons for not considering the information at [14]-[15] of its decision record.

b.    The Authority did not form a state of satisfaction as to whether the information was new information as defined in s 473DC(1) of the Act.

3.    The Authority made a jurisdictional error by forming a state of satisfaction that there were no exceptional circumstances to justify considering the information for the purposes of s 473DD(a) of the Act without first forming a state of satisfaction about whether the information was new information.

Particulars

a.    The Authority set out its reasons for not considering the information at [14]-[15] of its decision record.

b.    The Authority formed a state of satisfaction that there were no exceptional circumstances to justify considering the information without determining whether it was new information, a necessary precondition to forming such a state of satisfaction.

…

6.    In the alternative to grounds 2, 3, 4 and 5, the Authority made a jurisdictional error by forming a state of satisfaction that there were no exceptional circumstances to justify considering the information for the purposes of s 473DD(a) of the Act without first considering whether the information met the description in either s 473DD(b)(i) or s 473DD(b)(ii) of the Act.

Particulars

a.    The Authority set out its reasons for not considering the information at [14]-[15] of its decision record.

b.    Insofar as the Authority's reasons ought to be construed as it having formed a state of satisfaction that the information was new information as defined in s 473DC(1) of the Act, it did so on the basis of its relevance being unclear.

c.    The Authority relied on 'similar reasons' to form its state of satisfaction that there were no exceptional circumstances to justify considering the information for the purposes of s 473DD(a) of the Act.

d.    The Authority failed to consider whether the information met the description in either s 473DD(b)(i) or s 473DD(b)(ii) of the Act in forming its state of satisfaction that there were no exceptional circumstances to justify considering the information for the purposes of s 473DD(a) of the Act.

24    Thus the first two of these grounds impugn, in different ways, what is said to be the Authority's failure to reach a state of satisfaction as to whether the marriage information was 'new information' for the purposes of s 473DC(1) of the Migration Act. By proposed ground 6 the appellant seeks to contend in the alternative that, if the Authority did reach that state of satisfaction, it nevertheless erred by deciding that there were not exceptional circumstances to justify considering the new information (s 473DD(a)) before considering whether the information met either of the criteria in s 473DD(b).

25    In support of the first two proposed grounds the appellant submits that the Authority had a duty to determine whether the marriage information was new information for the purposes of s 473DC(1), and so for the purposes of s 473DD.

26    According to the appellant, AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; (2020) 269 CLR 494 at [6] is authority for the proposition that once the Authority has obtained information, it has a duty to assess whether it is new information and whether it ought to consider it. He appeared to submit that this duty arises from s 473DB read with s 473DC.

27    There was no issue that the information was not before the delegate when the original decision was made (s 473DC(1)(a)). As to why it was information that was open to the Authority to consider may be relevant (s 473DC(1)(b)), the appellant relied on the Authority's consideration of whether it was reasonable for the appellant to relocate to an area of Pakistan where there would not be a real risk that he would suffer significant harm.

28    That issue arose in connection with the complementary protection criterion for a protection visa in s 36(2)(aa), which turns on whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of removal from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm. Under s 36(2B)(a) there is taken not to be a real risk of that kind if it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk of that kind.

29    The appellant submitted that his marriage to an Australian citizen potentially impacted on the reasonableness of his relocation, which depends on the particular circumstances of the applicant for complementary protection. That required the Authority to consider the appellant's personal and family circumstances carefully. The appellant's point appeared to be that the new family circumstance - that he had a spouse living in Australia who was an Australian citizen - could bear upon that consideration.

30    The appellant submits in that context that the Authority did not discharge its duty to determine whether the marriage information was new information. He contends that the Authority's statement that there was 'some doubt' as to whether the marriage information was new information meant that it failed to form a state of satisfaction about whether it was or was not new information.

31    The appellant also submits that the Authority had a duty to assess information that it had received against the criteria in s 473DD(b) (also relying on AUS17 at [6]) and that it could not do that if it had not first decided whether the information was new information. That is said to be because the assessment of the information against the criteria in s 473DD(b)(i) and (ii) is affected by the prior assessment of the criteria in s 473DC(1) - broadly, whether the information was before the Minister before the original decision and whether the Authority considers that it may be relevant. The appellant submits that without forming a state of satisfaction about whether the information was new information, the Authority could not form a state of satisfaction about whether either of the criteria in s 473DD(b) for considering new information was satisfied.

32    The appellant's argument in that regard appears to be, in part, that consideration of whether the information was not before the Minister when he made the decision under s 65 (s 473DC(1)(a)) may bear on whether the 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)). Similarly, that whether the information was information that the Authority considered may be relevant (s 473DC(1)(b)) may bear on whether it was credible personal information that may have affected the consideration of the appellant's claims (s 473DD(b)(ii)).

33    The appellant also submits that there is a realistic possibility that the Authority's decision could have been different if the marriage information had been received and considered as new information. So, he submits, the error was material and thus a jurisdictional error.

34    In connection with that, the appellant points out that in his submissions to the Authority he disputed the delegate's finding that it was reasonable for him to relocate within Pakistan, so it was in issue before the Authority. But he accepts that nowhere did the submission raise as relevant his marital status or his relationship with the person who subsequently became his wife.

The Minister's position on the proposed grounds

35    The Minister submits that, contrary to the position underlying the first two proposed grounds, on a fair reading of the Authority's reasons it did consider that the marriage information was not information that may be relevant, meaning that it was not new information within the meaning of s 473DC(1). Thus, both proposed grounds 2 and 3 fall away.

36    If that is correct then ground 6 would also fall away. That is because, if the Authority did determine that the marriage information did not meet the definition of new information, it follows that there was no need for it to consider it against any of the criteria in s 473DD.

37    In relation to ground 3, the Minister further submits that it is not correct to say that the assessment of whether the criteria in s 473DD are fulfilled is affected by an anterior assessment of whether the relevant information is new information. Rather, the s 473DD assessment assumes it is new information. The Minister accepts, however, that if the Authority had determined that the marriage information was new information, then the Authority did not adhere to the procedure for considering s 473DD as articulated in AUS17, because it found that there were no exceptional circumstances to justify taking the information into account without first (or at all) considering the criteria in s 473DD(b).

38    The Minister also disputes the materiality of any error. He submits that in the absence of any explanation having been put to the Authority of the significance of the marriage information, or of how the appellant's responsibilities to his Australian wife might bear on the reasonableness of his relocation within Pakistan, if the Authority had considered the new information it could not have reached a different decision. That is so even on the undemanding standard referred to in Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 276 CLR 80. The Minister says that this is not conjecture; it is evident from the Authority's actual treatment of the marriage information.

Principles relevant to the proposed new grounds

39    It is well established that:

the scheme of Pt 7AA is that, except in limited circumstances, the Authority must review de novo a fast track decision referred to it on the papers, those papers being the review material provided to it by the Secretary of the Department, and conduct that review without accepting or requesting new information or interviewing the referred applicant.

BVD17 v Minister for Immigration and Border Protection [2018] FCAFC 114; (2018) 261 FCR 35 at [31] (Flick, Markovic and Banks-Smith JJ).

40    As is apparent from the provisions set out above, s 473DD effectively provides for an exception to this approach where the Authority is satisfied that there are exceptional circumstances to justify considering the new information (s 473DD(a)), and that either of the conditions in s 473DD(b) have been fulfilled.

41    As to what is 'new information' for the purpose of s 473DD, s 473DC(1) defines it to mean any documents or information that meet two criteria. First, they were not before the Minister (or the delegate) when the decision under s 65 was made. Second the Authority considers that they may be relevant. That second criterion means 'that the Authority thinks that the information might be capable of rationally affecting its assessment of the probability of the existence of some fact about which it might be required to make a finding in its decision on the review': AUS17 at [3].

42    Information is simply a communication of knowledge of facts or circumstances of an evidentiary nature: AUS17 at [3]. The Authority 'gets' new information within the meaning of s 473DC when and if it physically obtains it: AUS17 at [4].

43    The appellant placed particular reliance on [6] of AUS17, which is as follows:

Though expressed to prohibit the Authority from considering new information if the criteria it specifies are not met, s 473DD necessarily operates against the background of s 473DB also to empower the Authority to consider new information if the criteria it specifies are met. For that binary outcome of the application of s 473DD to be workable, s 473DD must be construed to impose a duty on the Authority to assess new information that it has got against the specified criteria. Having performed that duty to assess the new information against the specified criteria, the Authority must take that new information into account in making its decision on the review if those criteria are met and must not take that new information into account in making its decision on the review if those criteria are not met.

44    As the Minister acknowledged in this case, AUS17 at [10]-[12] is also authority for the proposition that the Authority must assess such new information as it might obtain against both the criteria in s 473DD(b) before turning to consider whether there are exceptional circumstances to justify considering the information as required by s 473DD(a).

45    As to the question of the reasonableness of relocation, the appellant relies on SZATV v Minister for Immigration and Citizenship [2007] HCA 40; (2007) 233 CLR 18 at [24], in which it was said that '[w]hat is "reasonable", in the sense of "practicable", must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality'. This was said in the context of s 36(2) of the Migration Act as it was in 2007; the criterion of that provision made reference to the Convention Relating to the Status of Refugees (22 April 1954) 189 U.N.T.S. 150. Section 36(2) was subsequently amended by the Migration Amendment (Complementary Protection) Act 2011 (Cth), which had the effect of removing the consideration of the reasonableness of relocation for refugee claims that had been established by SZATV: FCS17 v Minister for Home Affairs [2020] FCAFC 68; (2020) 276 FCR 644 at [37], [43]-[47], [81] (Colvin and White JJ, Allsop CJ agreeing). But the Minister did not take any issue with the ongoing applicability of SZATV in light of these amendments to the Migration Act. His point, rather, was that the appellant did not articulate to the Authority how his particular circumstances, namely his marriage to an Australian citizen, might affect the reasonableness of his potential relocation.

Leave to rely on the proposed new grounds will be refused

46    In all the circumstances, it is appropriate to exercise the discretion to refuse leave to the appellant to rely on the proposed new grounds.

47    First, I take into account the principles set out in the passage at [17] above. While the particular position of applicants in migration cases should be given weight, it does not follow that leave to such applicants to advance new grounds should be given as a matter of course. It must still be in the interests of justice to do so, taking into account not just the applicant's circumstances but the systemic imperatives discussed in the passage and the merits of the new grounds.

48    Secondly, it is relevant that the appellant had not advanced a good explanation for why the grounds were not put in the FCFCOA. Being self-represented at the hearing is not by itself a good explanation, and he had legal representation in the FCFCOA before that. That said, I would not go so far as to infer that this means it was a forensic choice.

49    As the discussion of BLX16 above reflects, applications of this kind are not occasions to speak in generalities about such matters, for example by saying that leave will never or rarely be given to rely on new grounds if no good excuse has been advanced. Nor is it necessarily always fatal to concede, as counsel has done here, that there is no good explanation for why the proposed grounds were not argued below. But that concession is a factor that I take into account as pointing away from exercising the discretion.

50    Thirdly and determinatively, in the context just given, I do not consider that the proposed new grounds have sufficient merit to mean it would be in the interests of justice to give leave to the appellant to advance them. Essentially, that is because I do not accept the appellants' construction of the Authority's reasons.

51    The appellant submitted that the Authority had a duty to assess whether the marriage information was new information under s 473DC(1) and to assess under s 473DD whether it ought to consider it. He submitted that both of those requirements emerge from AUS17 at [6] (quoted in full above). But while the requirement under s 473DD does appear there, I am not persuaded that [6] also stands for the proposition that the Authority has a duty to assess whether each piece of information it obtains that is not in the materials provided by the Secretary of the Department was new information under s 473DC(1). The paragraph is, in terms, about the Authority's duty to assess against the criteria in s 473DD information that has already been identified as new information under s 473DC. This is reflected in the way that the plurality first considers s 473DC(1), at [2]-[4], before moving on to the discussion of s 473DD at [5] onwards.

52    Counsel for both parties were unable to identify any case in which a duty to decide whether the information was new information in the first place was held to exist. That being so, it is preferable to hew to the terms of s 473DC itself: the question is whether the Authority did or did not 'consider', that is, think, that the information 'may be relevant'.

53    The Authority's reasons are not to be construed minutely and finely with an eye keenly attuned to the perception of error, or by seeking to discern whether some inadequacy may be gleaned from the way in which they are expressed: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. Rather, they must be given a fair reading as a whole, taking due regard of the context provided by the information and submissions that were before the Authority.

54    In relation to the marriage information, that context was scant. The marriage certificate was sent to the Authority a little over two months after the Authority received and accepted written submissions on behalf of the appellant. There was little explanation given; it was merely referred to as a change in the appellant's personal circumstances. The fact of his recent marriage to an Australian citizen was stated, but its significance for the protection visa application, if any, was not explained. The certificate evidenced that fact, but did not shed any light on its significance. The appellant's representative did not link the provision of the certificate to the issue of the reasonableness of relocation, or to any other issue. It was not asserted that it was new information within the meaning of s 473DC and the representative did not submit that the Authority should consider it under s 473DD.

55    Nor was the significance of the information obvious. Even if the Authority had linked it to the question of relocation within Pakistan, it would not have been apparent without more why the appellant's marriage would have made it unreasonable for him to relocate to Islamabad, Lahore or Rawalpindi, as the delegate had found he could. The issue of relocation was about relocation within Pakistan; it only arises on the assumption that the appellant is back in that country. There was no question at large as to whether it was reasonable to send him back to that country in the first place. Hence, while it may readily be accepted that the appellant's marriage to an Australian citizen, presumably domiciled in Australia, may bear on the reasonableness of his relocation to Pakistan, that was simply not to the point.

56    In view of that, many questions arise. Was the appellant's wife going to go to Pakistan with him? If so, how did that bear on the reasonableness of relocation? If not, would she somehow be reliant on his financial support, and might that be affected by his relocation within Pakistan? No facts or contentions that linked the marriage information to the protection claims were put to the Authority.

57    It is therefore understandable why the account the Authority gave of what it made of the information (see [12] above) was a compressed one. The Authority noted, in effect, the lack of any indication of what the information was provided for. It speculated that it may have been given in fulfillment of an undertaking given on the visa application form, which would have meant that it was not advanced as new information at all. In short, the Authority tried to identify why the information was relevant, and came up with nothing.

58    In light of all of that, I consider that the statement at the beginning of paragraph 15 of the Authority's decision that the relevance of the marriage information to the protection claims was unclear should be understood to meant that the Authority did not consider (that is, did not think) that it may be relevant. The same may be said of the statement in the second sentence of paragraph 15 that there was some doubt as to whether it was new information.

59    In paragraph 14, the Authority said that there was no indication as to how the marriage information was relevant. And the only specific reason it could think of for why the information was given to it did not concern the merits of the appellant's protection claims. In that context, it seems to me that, fairly understood, the equivocal mode of expression that the Authority used in paragraph 15 is simply a mild way of expressing the view it had reached that the information was not relevant.

60    That reading is supported by the next sentence in paragraph 15 which puts, as an alternative to the view reached by the Authority, that the marriage information was new information, and then says in more categorical terms that 'for similar reasons' the Authority was not satisfied that there were exceptional circumstances to justify considering the information. All this implies that the reasons previously given did result in a firm view that the information was not relevant, albeit one not expressed in categorical terms.

61    The Authority thus engaged with the question of whether the information could be relevant, and the state of mind that it reached was that it did not consider (think) that the information may be relevant. It is difficult to see what more was required of the Authority. Even if, as the appellant submits, a need to engage with the question arises out of the duty to decide whether to consider new information under s 473DD as construed in AUS17 at [6], the Authority did engage with it here. On the terms of s 473DC(1)(b), the outcome was that the marriage information was not new information.

62    As analysed above, the merits of the proposed grounds all depend on finding that the Authority did not arrive at a state of mind in which it did not consider that the marriage information may be relevant, so that it would be new information. The case for such a finding has no clear merit. In circumstances where no good reason has been given for not putting the grounds to the primary judge, it would not be in the interests of justice to grant leave to advance the new grounds now.

63    That conclusion makes it unnecessary to reach a view as to whether any error was material.

Conclusion

64    The sole ground of appeal that can be put without leave has no merit. The appeal will be dismissed, with costs. The Minister submitted, and counsel for the appellant accepted, that $5,000 was a reasonable sum to fix for those costs. I agree, and an order to that effect will be made.

Associate:

Dated:    27 May 2024