GROUND 2
36 The second ground of appeal asserts that the Authority failed to genuinely consider whether the information fulfilled the condition in s 473DD(b)(ii). It was submitted that the Authority expressed a bare conclusion that the condition was not satisfied without actively engaging with the issues it had to determine, namely whether the information was personal, credible information that was not previously known and that, had it been known, whether it may have affected the consideration of the appellant's claims. The Authority had "swept away" the issue of the new information and simply asserted that it was not satisfied as to the criteria in s 473DD(b)(ii), without explaining its conclusion, so it was submitted.
37 It is true that the Authority expressed its conclusion that s 473DD(b)(ii) was not satisfied in a single sentence (at [15]). However, that conclusion is preceded by a course of reasoning from [5] - [14].
38 The Authority identified (at [5]) that the May letter included "some new claims" relating to the question of relocation. It noted a submission of the appellant's representative to the effect that whilst the information predated the delegate's decision "it was not and could not have been provided to the delegate before he made his decision because the appellant was previously unrepresented and did not make a formal submission which may have included this new information due to his lack of understanding of the law relating to the refugee status determination process".
39 After identifying the information that had been raised before the delegate (at [6]), the Authority said that the delegate had explained to the appellant the nature of the review application process, including the fact that the appellant may not have the opportunity to provide additional information should his visa application be refused. The Authority continued (at [7]):
I am satisfied that the applicant was aware of the opportunity for him to provide further information to the delegate in relation to any aspect of his protection visa application, and understood the importance of providing any further information to the delegate before he made his decision. I note that not all applicants for protection visas are represented. The applicant is a man in his mid-30s who has received 12 years of education. His substantial experience as a user of 3-D animation software and his evidence that he uses social media suggest to me that he has good basic IT skills. He indicated in his SHEV application that he speaks reads and writes English. In the arrival interview conducted shortly after his arrival in Australia, he rated his English language ability as good. I note that he participated in the entry interview largely in English, with limited assistance from the interpreter. I consider that the applicant was capable of finding and providing information in support of his application, and was on notice of, and understood; the potential relevance of his capacity to relocate to other parts of Pakistan when making his application. I note that the material before me includes a range of sources of information about matters relevant to issue of internal relocation.
40 The Authority then addressed each of the four aspects of new information it had identified at ([9]).
41 In relation to the claim that the appellant's level of English and Urdu was rudimentary, the Authority said (at [10]):
The applicant indicated in his SHEV application that he speaks reads and writes English and Urdu. He indicated during his entry interview that he spoke Urdu and English, as well as Hazaragi. As discussed, he participated in the entry interview largely in English and with limited assistance from the interpreter, and in his arrival interview described his English language ability at that time as 'good'. The applicant claims that he attended Pakistani government educational institutions for 12 years. I note that English and Urdu are official languages of Pakistan. The timing of the provision of the information that his English and Urdu language skills are of an elementary level, and its apparent inconsistency with the other evidence regarding the applicant's language abilities leads me to question the accuracy of this information.
42 In relation to the claim that it would be difficult to find work in Islamabad without formal qualifications, the Authority said (at [11]) that the claim was not supported by independent information. The Authority noted that the appellant's ability to secure employment in Islamabad had been raised in the course of his interview with the delegate and that he had not raised an issue about the need for formal qualifications at that time.
43 As to the appellant's claim to be the main source of support for his family, the Authority noted (at [12]) that the appellant had made previous claims to the effect that no family members were dependent on him, that his wife and child lived with his parents in Quetta and that his father supported his family members there.
44 As to the appellant's claims about his prior attempt to relocate to Karachi, the Authority noted (at [13]) that his experience of relocation had been the subject of discussion at his interview with the delegate and that the appellant had told the delegate that relocation was very difficult:
… but did not claim that his ability to relocate to another location in Pakistan was reduced by his experiences in Karachi, including any emotional trauma. No independent medical evidence was provided in support of the claim that the applicant suffered emotional trauma as a result of his experience of relocating to Karachi.
45 Later in its reasons, the Authority gave lengthy consideration to the appellant's asserted difficulties in relocating to Karachi (at [29] - [40]). It is plain from that aspect of the reasons that the "new information" forming the subject of the Authority's reasoning under s 473DD was limited to the emotional trauma the appellant said had resulted from that prior relocation attempt.
46 The Authority's conclusions on the application of s 473DD to the new information were expressed was follows:
14. As discussed, the applicant's representative submits that the applicant did not make submissions due to his lack of understanding of the protection Visa application process. The applicant has not provided any other explanation as to why the information regarding his language abilities, the employment situation in Islamabad, his status as the main source of support for his family, and his reduced capacity to relocate due to his experience in Karachi, could not have been provided at an earlier point. As also discussed, the delegate advised the applicant at the end of the SHEV interview that any information the applicant provided before he made a decision would be considered. No additional information was received by the delegate before he made his decision. I do not accept that the applicant did not provide information about these matters at an earlier point due to any lack of understanding of the protection visa application process.
15. The applicant has not satisfied me as to either of the matters in s.473DD(b)(i) or (ii). Having regard to all of the circumstances, I am also not satisfied that there are exceptional circumstances to justify considering the new information, including new claims, related to the issue of internal relocation.
47 The submission that the Authority failed to engage intellectually with the statutory condition in s 473DD(b)(ii) is rejected. The Authority's reasoning evidences that it did engage with the question of whether the information was credible personal information. The appellant's written submissions did not grapple at all with the passages of the Authority's reasons to which I have referred. Counsel's oral submissions focussed principally on an alleged failure by the Authority to engage with the appellant's submissions about the existence of a supportive Hazara community in Islamabad. As I have said, information about that subject matter was not perceived by the Authority to be new.
48 Counsel otherwise submitted that the question of whether the appellant had been afforded the opportunity to provide the information to the delegate was irrelevant. That submission must also be rejected. The appellant himself had asserted a reason for not providing the information at an earlier time. The Authority was entitled to test that explanation. It was open to the Authority to reject it. The question of whether the appellant had been provided a fair opportunity to disclose the information at an earlier time was clearly capable of bearing on the alternate criteria in s 473DD(b)(i) and (ii). It was also relevant to the criteria in s 473DD(a).
49 The Authority engaged directly with the contention that the appellant's unrepresented status at the time of the delegate's decision and his lack of proficiency in English caused him to misunderstand the review process. It rejected the explanation in terms that do not disclose error. The Authority expressly noted that no other explanation had been provided.
50 In addition, the Authority identified those areas where it considered the new information contradicted information the appellant had previously provided.
51 The Authority's conclusions at [14] and [15] are to be understood as having been informed by all that had preceded them. Read together, the reasons disclose an intelligible basis for the conclusion that the criterion in s 473DD(b)(ii) was not satisfied. The Authority did not consider the information to be credible, both because there was no acceptable explanation for it having been only recently raised, and because it contradicted information the appellant had provided previously.