ABX18 v Minister for Home Affairs

The Authority's decision 8 The Authority commenced by noting that on 10 October 2017 and 5 November 2017 the appellant had provided additional material to the Authority. That material included a claim that the appellant had not been informed of the scheduled protection visa interview dates and that he would have attended had he known those interviews were scheduled. The material also included new claims, new information, country information and other documents. 9 The Authority first considered the appellant's claims that he had not been informed about the interviews with the delegate. The Authority concluded that the appellant was properly notified of an interview opportunity by the Minister's department: in relation to the first invitation for an interview, the appellant was notified by the Minister's department sending the invitation to the Agent who at the time was on the record as the appellant's address for service; and in relation to the third invitation for an interview, the appellant was sent the invitation at his correct postal address. The Authority did not accept the appellant's claims that he was not given an opportunity to attend an interview with the delegate and did not accept that he was not aware of the interview, given his telephone conversation with the delegate on 23 June 2017 and the subsequent invitation that was sent to his postal address. 10 Notwithstanding that, the Authority invited the appellant to an interview to obtain further information about his claims. The Authority considered that the circumstances warranted it doing so as the appellant had not had a protection visa interview and there were issues about whether he had been given a proper opportunity to attend the interview. 11 Next, the Authority considered new information provided by the appellant at its interview with him. In particular the appellant made a claim that his friend was arrested three or four months before he left Sri Lanka and that he must have disclosed the appellant's LTTE involvement (at [16] and [20] of the Authority's decision record). The Authority considered that this was a new claim made to enhance the appellant's protection claims and that the appellant had plenty of prior opportunity to provide this information. The Authority was not satisfied that this new information met the requirements of s 473DD(b)(ii) of the Migration Act 1958 (Cth) (Act) and, given that the event occurred in 2012 and was known to the appellant, was not satisfied that he could not have provided that information earlier, either in his arrival interview or in his statutory declaration dated 3 May 2016 which was provided with his SHEV application. Thus the Authority was not satisfied that s 473DD(b)(i) of the Act was met or that there were exceptional circumstances to justify considering the new information under s 473DD(a) of the Act. It thus did not consider it. 12 Lastly, the Authority considered new information that was provided to it in writing which took the form of a number of documents that predated the delegate's decision. Other than the statutory declaration dated 7 October 2017 and statement dated 2 November 2017 in relation to the circumstances in which the appellant did not attend an interview with the delegate, the Authority was not satisfied that any of the new documentary information met the requirements of s 473DD of the Act and did not have regard to it. 13 The Authority then made the following findings: (1) it accepted that the appellant and his family lived in an LTTE controlled area, suffered harm during the war and were displaced during the war. However, it did not accept that the appellant's memory was seriously affected by the war and stress suffered at the hands of the CID (at [41]-[42]); (2) in relation to the appellant's claims to have been detained in various camps: (a) it accepted that the appellant was questioned for five days in 1996 but did not accept that he was detained for 10 months because the camp in which he says he was detained in 1996 was a transit camp and not established as a rehabilitation centre until 2009 (at [43]); (b) it accepted that the appellant was in a camp for one year in 1999 but did not accept that he was of any further interest to the SLA, the CID or the authorities upon his release given that he was released and able to take up employment (at [44]); (c) it accepted that the appellant and his family were in a camp for internally displaced persons (IDP) in 2009 after the war but did not accept that they were in a rehabilitation centre (at [45]-[46]); and (d) it did not accept that the authorities had any interest in the appellant as a result of being in any of those camps (at [49]); (3) it accepted that the appellant was questioned about his driving for the LTTE which was not an uncommon occurrence in the camps and that he was required to register or sign for six months after he left the camp in December 2009 but did not accept that the appellant was of any interest after that (at [47]-[49]); (4) it accepted that everyone living in an LTTE controlled area provided some sort of support to the LTTE during the war but did not accept that the appellant was a trusted LTTE employee or at a high level in the LTTE or that he was a willing participant. Rather he was required to provide support by driving tractors and other vehicles to transport LTTE goods or persons because he lived in an LTTE controlled area (at [50]-[51]); (5) it did not accept that the appellant copied propaganda videos for the LTTE and distributed them overseas (at [52]); (6) it accepted that the appellant was questioned in 2009 and beaten because of his driving for the LTTE and that he had to report for six months but did not accept that he was arrested or sent to a rehabilitation centre or that a file was opened in his name (at [53]); (7) it did not accept that anyone informed on the appellant in 2012 or that the CID came looking for him at that time. The Authority did not find it credible that the CID would take three years to question the appellant about activities in which he allegedly engaged during the war, noting that the appellant was able to live and work freely for many years without harm (at [54]-[55]); (8) it did not accept that the CID found out about the appellant from friends of Mr S who were arrested and it said that if Mr S and his associates were of interest to the authorities, the CID would have questioned them and the appellant in 2009 or earlier than 2012 (at [56]); and (9) it did not accept that the CID came to his home and took his ID card or that the CID, the SLA or the authorities are or were looking for the appellant or his family. It did not accept that the CID considers that the appellant is involved with LTTE propaganda or associated with high profile LTTE members or that the appellant faces kidnapping, arrest, imprisonment, disappearance, beatings from the CID, the SLA or the authorities or any person (at [60]-[61]). 14 Under the heading "Refugee assessment", the Authority then considered the appellant's claim to fear harm from the CID on the basis of his work and association with the LTTE, as a failed asylum seeker and because of his illegal departure. 15 In relation to the appellant's claim to fear harm from the CID on the basis of his work and association with the LTTE, the Authority did not accept that the appellant has any relevant profile or that he is a suspected LTTE member or a criminal. It did not accept that the appellant faces any chance of being detained or coming to the attention of the authorities as it did not accept that he has an LTTE or anti-government profile or links (at [64]-[73]). Nor did the Authority accept that the appellant faces any discrimination or harm as a result of ethnic unrest (at [74]) or that he faces a real chance of persecution because of his Tamil ethnicity, because of his membership of a particular social group as a married Tamil Catholic male from the Northern Province who lived in an area formerly controlled by the LTTE, because he was displaced during the war and was in transit and IDP camps, because he was questioned in 1996 and detained in 1999, because his father and sister were killed and he was injured in a bomb attack, because he drove tractors and other vehicles for the LTTE during the war or because he was questioned, beaten and required to register in 2009 (at [82]). 16 The Authority then addressed the appellant's claim to fear harm on his return to Sri Lanka as a failed asylum seeker or because he departed Sri Lanka illegally. The Authority was not satisfied that the appellant would face a real chance of harm from the CID or the authorities or any other person on return to Sri Lanka because he was a failed Tamil asylum seeker (at [89]) or that he would face a real chance of serious harm because of his illegal departure from Sri Lanka (at [101]). 17 The Authority concluded, having regard to all of the evidence before it and having considered the appellant's claims both individually and cumulatively, that it was not satisfied that the appellant has a well-founded fear of persecution, now or in the reasonably foreseeable future, if he returns to Sri Lanka. The Authority thus found that the appellant did not meet the requirements of s 36(2)(a) of the Act. 18 The Authority also considered whether the appellant met the requirements of s 36(2)(aa) of the Act but, having considered the appellant's circumstances, it did not accept that he faced a real risk of significant harm upon return to Sri Lanka and therefore concluded that the appellant did not meet the requirements of s 36(2)(aa) of the Act.

Federal Circuit Court Proceeding 19 The appellant commenced a proceeding in the Federal Circuit Court seeking judicial review of the Authority's decision. He relied on an amended application filed on 1 November 2018 (Amended Application) which raised the following grounds of review: 1. The Authority failed to carry out its statutory duty to review the application. Particulars 1. The Authority refused to accept that the Applicant was arrested or sent to a rehabilitation camp. 2. The Authority refused to accept that a file was opened in the Applicant's name. 3. The Authority refused to accept that that the Sri Lankan authorities had any interest in the Applicant as a result of him being in the camps. 4. In doing so, the Authority has simply applied the decision of the delegate rather than conducting a review of the decision. 2. The Authority acted unreasonably in making its decision and failed to base its findings on evidence. Particulars 1. The Authority accepts that there are reports in Sri Lanka of arrests and torture of known former LTTE members but does not accept that the Applicant has an LTTE profile. The Applicant is a known former LTTE member as he was a driver for the LTTE transporting goods and personnel, therefore he has a LTTE profile or was perceived as an LTTE follower. 2. The Authority did not provide any evidence to support the conclusion that the Applicant did not have a LTTE profile. 3. The Authority applied the wrong test. Particulars 1. The Authority accepted that the applicant was required to provide support to the LTTE by driving a tractor and other vehicles to transport LTTE goods and persons, as he lived in a LTTE controlled area. 2. The Applicant claimed that he was ordered to drive vehicles for the LTTE and was a trusted employee of the LTTE. 3. The Authority rejected this claim stating that it did not accept that the Applicant was a 'trusted LTTE' employee or at a high level if he was 'ordered' to drive vehicles and compelled. The Authority failed to consider that the Sri Lankan authorities were not concerned with compulsion and willingness when working for the LTTE, the fact that the Applicant drove vehicles for the LTTE meant that he would be perceived as a member of the LTTE and as such had an LTTE profile that would bring him to the adverse attention of the Sri Lankan authorities. 4. The Authority failed to take into consideration the mental trauma that the Applicant had faced which resulted in his memory being seriously affected. Particulars 1. The Applicant explained that he had only provided brief claims in his arrival interview and did not give all the details at that time. 2. The Applicant stated that due to the war and subsequent stress at the hands of the CID, his memory was seriously affected. 3. The Authority failed to take into consideration the fact that the Applicant's father was killed by army personnel without provocation, the Applicant's sister died in a bomb attack, the Applicant was detained for ten months in a camp and the CID interrogated him for 5 days and the Applicant was beaten and threatened by the CID. These instances have traumatised and seriously affected the Applicant's memory. 4. The Authority rejected the Applicant's mental trauma on the basis that he had been able to provide details of where he lived, the name of camps, what happened in his life, however, this does not negate the fact that the Applicant's memory is seriously affected by the war and actions of the CID. 20 The primary judge addressed each of the four grounds in turn. 21 In relation to ground 1, the primary judge noted at [25] of his reasons that the particulars to the ground refer to the Authority's findings at [47]-[48] of its decision record and that the appellant submitted that "the Authority did not engage in an active intellectual process but merely applied the delegate's decision in so finding". The primary judge found that there was no basis for that assertion, that the Authority's reasons explained in detail why it found that the appellant was not of interest to the Sri Lankan authorities after December 2009 and that there was no reason to infer that the Authority was merely applying the delegate's decision. 22 In relation to ground 2, the primary judge noted at [27] of his reasons that the particulars to the ground referred to the Authority's finding that the appellant did not have an LTTE profile despite having driven vehicles for the LTTE in 2008 to 2009 and that the Authority gave reasons for that conclusion at [50]-[55] and [64]-[73] of its decision record. The primary judge observed that the appellant had not identified any "'extreme' illogicality" in the Authority's reasoning as required to make out legal unreasonableness and that the Authority did not need rebutting evidence as suggested in the particulars to that ground. 23 The primary judge also observed that the appellant's submissions in support of ground 2 in fact relate to the Authority's findings at [16] and [20] of its decision record which concern the appellant's claim that he had a friend who was arrested three or four months before he left Sri Lanka. The primary judge recorded the appellant's submission that, contrary to the Authority's findings, the appellant had mentioned his friend's arrest previously in his statements to the delegate and to the Authority. The primary judge found that neither of those statements referred to a friend of the appellant being arrested shortly before the appellant left Sri Lanka but rather to "employees" of an LTTE officer and "key drivers" for the LTTE being arrested at unspecified times. The primary judge observed that the Authority notes at [16] of its decision record that when it pointed out that the appellant had not mentioned his friend's arrest previously, the appellant informed the Authority that it was his mistake and he was fearful. 24 In considering ground 2, the primary judge also rejected, based on the transcript of the interview that was before his Honour, the appellant's submission that the interpreter at the interview with the Authority misinterpreted his evidence. 25 Finally, in relation to ground 2 the primary judge rejected the appellant's submissions that some of his claims were not addressed by the Authority and identified where in the Authority's decision record those claims alleged not to be addressed were either addressed or where the Authority had found that it could not consider those claims because s 473DD of the Act had not been satisfied. 26 The primary judge noted that the particulars to ground 3 and the appellant's submissions asserted that, because the appellant drove vehicles for the LTTE, he had a profile that would bring him to the adverse attention of the Sri Lankan authorities. The primary judge found that these assertions rose no higher than a dispute about the Authority's conclusions. The primary judge referred to the Authority's reasons at [50]-[51] of its decision record and found that its conclusion that the appellant did not have an LTTE profile was based on the reasoning therein, was open to it and that the appellant had not demonstrated that the Authority's reasoning was legally illogical within the principles identified in CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 (CQG15) at [59]-[61]. 27 The primary judge observed that by ground 4 the appellant alleged that the Authority had failed to take into account the appellant's mental trauma which resulted in his memory being seriously affected. The primary judge pointed out that the Authority did not accept that the appellant's memory was affected by the events relied on by him and that the Authority had observed that the appellant had given a detailed statement and had provided no medical evidence about his memory. The primary judge found that the Authority's conclusion was open to it and that it did not demonstrate any failure to apply an active mental process as submitted by the appellant. The primary judge found that ground 4 rose no higher than a dispute about the Authority's factual conclusions and that it sought merits review.

The appeal 28 On 30 July 2019 the appellant commenced a proceeding in this Court by filing a notice of appeal in which he raises four grounds of appeal as follows: 1. His Honour erred in not finding that the IAA failed to carry out its statutory duty to review the application. 2. His Honour erred in not finding that the IAA acted unreasonably in not basing its findings on evidence. 3. His Honour erred in not finding that the IAA applied the wrong test. 4. His Honour erred in not finding that the IAA failed to take into account the appellant's mental health which affected his capacity to provide evidence. 29 These grounds effectively repeat the grounds raised by the appellant in the Federal Circuit Court, albeit without the particulars included in the Amended Application and without identifying why, in each case, the primary judge is said to have erred in rejecting each of the grounds. 30 The appellant did not file any written submissions in support of his grounds of appeal but made oral submissions at the hearing. To the extent that those submissions cavilled with the factual findings of the Authority and alleged that the Authority was wrong in concluding that the appellant was not at a high level in the LTTE I will not repeat them here. Those submissions rose no higher than to dispute the Authority's factual findings. However, two matters were raised by the appellant which went beyond a dispute about the Authority's factual findings. 31 The first matter concerned the appellant's interview with the Authority. The appellant submitted that he had not had an opportunity to be heard because he had not been interviewed by the delegate and the interview with the Authority took place by videoconference rather than in person as the appellant had requested. The appellant also submitted that the Authority had interrupted him during the course of the interview, had directed him only to answer the questions asked of him and had not otherwise permitted him to address it. 32 The second matter concerned the Authority's finding at [33] of its decision record that it was not satisfied that there were exceptional circumstances as required by s 473DD(a) of the Act justifying it to have regard to new information. The information in question comprised a statutory declaration dated 7 October 2017 and a statement dated 2 November 2017 about his role in the LTTE.

Consideration 33 I will consider the grounds included in the appellant's notice of appeal and those submissions in turn.

Ground 1 34 By ground 1 the appellant contends that the primary judge erred in not finding that the Authority failed to carry out its statutory task. The appellant does not say how it is alleged that the primary judge fell into error. 35 In addressing ground 1, as framed before him, the primary judge found that the particulars to that ground in the Amended Application (see [19] above) referred to the Authority's findings at [47]-[48] of its decision record. That seems to be so. In those paragraphs the Authority said: 47. I accept that the [appellant] was questioned about his driving for the LTTE, but this was not uncommon in the camps, particularly post war. I accept that he was required to register or sign for 6 [months] after he left the camp in December 2009. However, I do not accept he was of any interest after that. The [appellant] was able to continue to live and work in Sri Lanka as a driver. 48. I find the [appellant] was not arrested or sent to a rehabilitation centre but was released on resettlement in December 2009. I do not accept a file was opened in his name. I do not accept he was arrested or sent to a rehabilitation centre. 36 Also of relevance to this ground, having regard to the particulars relied on before the primary judge, is [49] of the Authority's decision record in which it said: I do not accept that the authorities have any interest in the [appellant] as a result of being in any of these camps. While I accept the [appellant] had to report or sign for 6 months from December 2009, this was not uncommon in post war Northern Sri Lanka, and I do not accept that the authorities continued to have an interest in the [appellant] after that. 37 These conclusions are further explained by the Authority at [50]-[53] of its decision record. Among other things, the Authority: (1) noted that the appellant claimed that he was ordered to drive for the LTTE in 2008 to 2009 and that he was ordered to drive tractors and other vehicles to transport goods and personnel, which was at odds with a later statement that he was a trusted employee of the LTTE. The Authority did not accept that the appellant was a trusted LTTE employee or that he was at a high level in the LTTE given that he was ordered to drive vehicles; (2) did not accept that the appellant copied and distributed propaganda and other videos for the LTTE given that this was not mentioned in his arrival interview; (3) accepted that the appellant was questioned in 2009, had to report for six months but noted that he was not arrested or sent to a rehabilitation centre. That the appellant had to sign for six months after his release from the IDP camp in November or December 2009 was not unusual after the war. As the appellant was not arrested and was released the Authority did not accept that the CID or the authorities had any further interest in him after his period of reporting ended; and (4) did not accept that the CID would be interested in the appellant in 2012, three years after he had transported goods and personnel for the LTTE and, in particular based on the appellant's own evidence, after he had been questioned about that role in 2009. 38 As the primary judge found, given the process undertaken by the Authority, it cannot be said that the Authority merely applied the delegate's decision. The Authority provided detailed reasons as to why it was of the view that the appellant was not of interest to the Sri Lankan authorities after 2009. There was no error in the primary judge's rejection of ground 1.

Ground 2 39 By ground 2 the appellant contends that the primary judge erred in not finding that the Authority acted unreasonably in not basing its findings on evidence. The particulars to that ground in the Amended Application referred to the Authority's findings that the appellant did not have an LTTE profile and asserted that the appellant is a "known former LTTE member as he was a driver for the LTTE transporting goods and personnel" and that the Authority did not provide any evidence to support its conclusion that the appellant did not have an LTTE profile. 40 In rejecting ground 2, the primary judge relied on CQG15 at [59]-[61] where a Full Court of this Court said: 59 One of the difficulties in the appellant's argument is the conclusion reached by the High Court in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, particularly (at [131]), where Crennan and Bell JJ stated that if reasonable minds could differ as to the conclusions to be drawn from the evidence, illogicality or irrationality or unreasonableness could not arise simply because one conclusion had been preferred to another possible conclusion. 60 In Minister for Immigration and Border Protection v SZUXN (2016) 69 AR 210, Wigney J collected the following relevant principles (at [52] and [54]-[56]): 52 As Robertson J put it in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at 137 [148], for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, "extreme" illogicality or irrationality must be shown, "measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions". And as McKerracher J (with whom Reeves J agreed) emphasised in SZOOR v Minister for Immigration & Citizenship (2012) 202 FCR 1 (at 22-23 [84]), a decision cannot be said by a reviewing court to be illogical, irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion. … 54 … The judgment of Crennan and Bell JJ in SZMDS reveals that jurisdictional error may be able to be established on the basis of illogical reasoning or illogical or irrational findings "on the way" to the final conclusion (see 648 [132]): see also SZRKT at 137-138 [151]-[153]; SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 at [61]-[62]. 55 Nevertheless, allegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error on the part of the Tribunal: SZRKT at 137 [148]. The overarching question is whether the Tribunal's decision was affected by jurisdictional error: SZRKT at 137-138 [151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at 598-599 [83]-[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship [2013] FCA 123 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal's ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration and Citizenship (2013) 135 ALD 276 at 291 [66]; SZWCO at [64]-[67]. 56 An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal's decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal's decision-making processes from scrutiny: SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31]. Considerable caution must, however, be exercised before too readily acceding to a proposition that adverse findings as to credit expose jurisdictional error: SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451 at 455-456 [14]-[15]. That is because assertions of illogicality and irrationality can all too readily be used to conceal what is in truth simply an attack on the merits of the Tribunal's findings and decision. In SZMDS, Crennan and Bell JJ (at 636 [96]) made it plain that the deployment of illogicality or irrationality to achieve merits review should not be sanctioned. 61 For present purposes, there is a difficulty for the appellant in demonstrating "extreme" illogicality. Even emphatic disagreement with the Tribunal's reasoning would not be sufficient to make out illogicality, according to SZMDS (at [124]). Although the appellant contends that the implausibility and inconsistencies were only "minor", his Honour disagreed (at [26]-[27]). 41 As the primary judge found, the appellant does not identify in the particulars to this ground or otherwise any "extreme illogicality". That reasonable minds may differ as to the conclusions based on the facts is not enough. Further, as the primary judge correctly observed, the Authority did not have to provide any evidence to support its conclusion about the appellant's LTTE profile. The Authority does not need to possess rebutting evidence before finding that a particular factual assertion is not made out: see CQG15 at [65]. There was no error in the primary judge's rejection of this ground.

Ground 3 42 By the third ground the appellant contends that the primary judge erred in not finding that the Authority applied the wrong test. The ground as included in the Amended Application again referred to the Authority's finding that the appellant was not a trusted LTTE employee or at a high level in the LTTE. The appellant contended that the Authority failed to consider that the Sri Lankan authorities were not concerned with compulsion or willingness when working for the LTTE and that the fact that he drove vehicles for the LTTE was sufficient for him to be perceived as an LTTE member and thus to have a profile that would bring him to the attention of the authorities. 43 The primary judge correctly identified that this ground was no more than an attempt to dispute the Authority's factual findings and its conclusions. There was no error on the part of the primary judge in considering ground 3.

Ground 4 44 By the fourth ground the appellant contends that the primary judge erred in not finding that the Authority failed to take into account the appellant's mental health which affected his capacity to provide evidence. 45 There is no error on the part of the primary judge in rejecting that claim. His Honour referred to the Authority's findings at [41]-[42] of its decision record where it said: 41. I accept the [appellant] and his family lived in an LTTE controlled area during the war and suffered harm during the war. I accept the [appellant's] father died in 1985 after being hit with a rifle by the army personnel and his sister was killed in a bomb attack and the [appellant's] shoulders were injured. I accept that the family were displaced during the war. 42. I do not accept the [appellant's] memory is seriously affected from the war and stress at the hands of CID. The [appellant's] statement set out details of where he lived, the names of camps, and what happened in his life, including the years the events happened. Further, there was no medical evidence about the [appellant's] memory. 46 As the primary judge found, the Authority's conclusion was open to it based on the material before it and there was no failure on the Authority's part to apply an active mental process.

The appellant's submissions 47 As set out at [30]-[32] above the appellant raised two issues in his submissions, neither of which was raised before the primary judge. To the extent the appellant seeks to raise these matters as new grounds on appeal he requires leave. Leave to raise a new ground on appeal should only be granted if it is expedient in the interests of justice to do so: see VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 at [46]. 48 The appellant gave no explanation as to why these grounds were not raised in the court below. Unlike in this Court, the appellant was legally represented before the primary judge. However the appellant said that in that court he did not have an opportunity to speak and to raise these issues. I would infer, given his representation in that court that the appellant gave instructions to his lawyer who identified grounds and made submissions on his behalf having regard to those instructions and the relevant material. Putting that issue to one side, neither of the submissions now raised has any merit and I would not grant leave to raise them as new grounds on appeal. I otherwise reject them. My reasons follow. 49 The first matter raised by the appellant concerns his interview with the Authority. In his statement dated 2 November 2017, which was in the form of a letter, the appellant requested that the Authority "organize an interview for [him], due to exceptional circumstance". On 15 and 29 November 2017 the Authority invited the appellant, presumably pursuant to s 473DC of the Act, to attend an interview. The appellant was informed that the interview would be conducted by video link and that the person conducting the interview would be located in Brisbane. I infer that the appellant was located in Adelaide at the time as the Authority's letter provided that he should attend at an address in Adelaide. The letter also included: You have been invited to attend an interview to provide the following information: • Why you meet the definition of refugee in s.5H or there are substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm. Please note that the IAA can only consider any new information you provide if there are exceptional circumstances. During the interview you may be asked to explain: • why the above information could not have been given to the Department of Immigration and Border Protection before it made the decision to refuse you a protection visa OR • why the above information is credible personal information which was not previously known and, had it been known, may have affected the consideration of your claims. 50 In its decision record at [5]-[6] the Authority said the following in relation to the interview: 5. I invited the [appellant] to an interview on 6 December 2017 ('the IAA interview') in order to obtain further information from him regarding his claims. Given the [appellant's] claims he had not been informed of the protection interview and therefore did not attend the interview, I considered the circumstances warranted inviting the [appellant] to an IAA interview because he had not had a protection interview and there were issues about whether he had been given a proper opportunity to attend the interview. IAA interview 6. At the IAA interview I discussed with the [appellant] the operation of s473DD in relation to new information already given in writing by the [appellant] to the IAA and any to be given at the IAA interview. 51 The Authority then summarised the matters discussed at the interview and made findings about some of the evidence given by the appellant. 52 The primary judge at [14] of his reasons referred to the appellant's interview with the Authority, noting that the Authority chose to conduct an interview with the appellant under s 473DC of the Act and that it explained its reasons for doing so at [5] of its decision record. The primary judge also noted that the appellant took issue with, among other things, the Authority's exploration at the interview of the circumstances of the appellant's non-attendance at an interview with the delegate and contended that the Authority used the interview to make adverse credibility findings in relation to his non-attendance at an interview with the delegate, which coloured the review. A transcript of the appellant's interview with the Authority was in evidence before the primary judge. The primary judge addressed this issue at [17] of his reasons and dismissed the issue, finding that the questions asked were directed to assessing whether exceptional circumstances existed for the receipt of the substantial new information proffered by the appellant. That finding is not challenged on appeal. 53 Insofar as the appellant contends that he asked for the interview to take place in person, he did not take me to any evidence to substantiate that claim. Indeed the available evidence does not establish that such a request was made. In any event: (1) s 473DC(1) of the Act permits the Authority to get any documents or information (referred to as "new information") that was not before the Minister when the Minister made the decision under s 65 of the Act and the Authority considers may be relevant. Section 473DC(3) relevantly provides that the Authority may invite a person, orally or in writing, to give new information at an interview "whether conducted in person, by telephone or in any other way"; and (2) s 473DF of the Act, which applies if a referred applicant is invited under s 473DC to give new information at an interview, relevantly provides at subs (3) that the Authority "may determine the manner in which, and the place and time at which, an interview is to be conducted". 54 The transcript of the interview with the Authority was in evidence before the primary judge. The appellant was assisted by an interpreter at the interview. Based on my review of the transcript the appellant's assertion that he was interrupted and not given an opportunity to speak is not borne out. Certainly the Authority directed the questioning but as identified by the primary judge it did that, in part, so that it could ascertain whether information that had been provided and which was given during the interview met the requirements of s 473DD of the Act. 55 The second matter raised by the appellant concerns the Authority's rejection of the further information that the appellant provided to it. The appellant submitted that, contrary to the findings of the Authority, he was a high ranking member of the LTTE and that, in effect, the Authority's rejection of information going to that issue was in error. The relevant information, which was included in the appellant's statutory declaration dated 7 October 2017, statement dated 2 November 2017 and a letter from Mr S, which was annexed to that statement, is described by the Authority at [33] of its decision record. The Authority found that this information was new information and turned to consider whether the appellant had satisfied s 473DD of the Act which provides: For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless: (a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and (b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information: (i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or (ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims. 56 At [31] of its decision record, the Authority made the following findings about the information: first, that it predates the delegate's decision and that it was known to the appellant as it was personal information; and secondly, that it could have been provided prior to the delegate's decision. In that regard the Authority did not accept that the appellant was afraid to provide the information earlier, given that he had already provided some information about his LTTE involvement. Thus the Authority found that the appellant had not satisfied it that the information could not have been provided to the Minister before he made his decision under s 65 of the Act and thus had not satisfied s 473DD(b)(i) of the Act. 57 Next, at [32] of its decision record, the Authority considered whether the appellant had satisfied s 473DD(b)(ii) of the Act but found that he had not. While the Authority accepted the information could have affected the Minister's decision, it was not satisfied that it was credible information. This was because, if he had been involved in the LTTE in the way claimed, he would have mentioned that to be the case in his arrival interview or in his statutory declaration dated 3 May 2016 accompanying his SHEV application and because of identified inconsistencies in his explanation for not providing the information earlier. 58 Finally, at [33] of the decision record, the Authority considered whether there were exceptional circumstances to justify considering the new information as required by s 473DD(a) of the Act. In Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at [29]-[30] Gageler, Keane and Nettle JJ said the following about s 473DD(a): 29 The precondition set out in s 473DD(a) must always be met before the Authority can consider any new information. Whatever the source of new information, the Authority needs always to be satisfied that there are "exceptional circumstances" to justify considering it. 30 Quite what will amount to exceptional circumstances is inherently incapable of exhaustive statement. The word "exceptional", in such a context, is not a term of art but "an ordinary, familiar English adjective": "[t]o be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered". (Footnote omitted.) 59 For the reasons set out at [33] of its decision record, the Authority was not satisfied that there were exceptional circumstances to justify it considering the new information. Those reasons included that: the information could have been provided earlier; the reasons given for not providing the information earlier were rejected. The Authority did not accept that the appellant was afraid to mention these matters given that he had already mentioned some of his LTTE connections; the appellant was told that the information provided would be kept confidential; he had the benefit of legal representation; it was crucial information which should have been provided at the outset if true; and the Authority did not consider that the information was credible. 60 The Authority thus found that the requirements of s 473DD of the Act had not been met in relation to the new information and did not have regard to it. The Authority considered both of the cumulative preconditions set out in s 473DD of the Act, albeit in reverse, in reaching its conclusion that the section was not satisfied. It did so having regard to the requirements of the section and made its findings on the basis of the information before it. There is no discernible error in its approach.

Conclusion 61 For those reasons the appeal should be dismissed. As the appellant has been unsuccessful he should pay the Minister's costs, as agreed or taxed. 62 I will make orders accordingly. I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Markovic.