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[2022] FCA 1299
Federal Court of Australia
2022-11-02
Smith J
Original judgment source is linked above.
The application of s 473DD 42 In order to assess the aspect of the appeal that might, in the appellant's favour, relate to whether the Authority should have had regard to additional evidence provided to it by the appellant, it is necessary to consider s 473DD. 43 Section 473DD is in the following terms: 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. 44 What is 'new information' is defined by s 473BB and s 473DC(1) as documents or information that were not before the Minister when the Minister refused the protection visa and that the Authority considers to be relevant. 45 On 20 October 2016 the appellant sent the Authority a series of emails that attached: (1) a one page written submission addressed to the Authority; (2) a 'Human Rights Watch' bundle that included a covering statement dated 30 June 2016 titled 'UN Human Rights Council: High Commissioner's reports on human rights of Rohingya Muslims and other minorities in Burma/Myanmar and on Sir Lanka' and pages 2-7 of a report titled 'World Report 2016: Sri Lanka'; and (3) excerpts from the Prevention of Terrorism Act 1979 (Sri Lanka). 46 The Authority commenced its reasons by considering those documents. In particular, the Authority said: 4. On 20 October 2016 the applicant sent a series of emails to the IAA comprising a submission, a copy of a Human Rights Watch 2016 report on Sri Lanka and extracts from the Prevention of Terrorism Act 1979 (PTA) of Sri Lanka. Reference to sections of the PTA was included in the Department of Foreign Affairs and Trade report that was before the delegate. Accordingly, I do not consider the extracts from the PTA to be new information. The Human Rights Watch report does not appear to have been before the delegate and I consider it to be new information. I note the publication date is 30 June 2016; it therefore pre-dates the delegate's decision. The new information is country information and does not relate to the applicant personally. The applicant has not provided reasons why the new information could not have been provided to the delegate before the decision was made. In the circumstances I am not satisfied in relation to the matters set out in s.473DD(b) of the Act. 5. With one exception the applicant's submission comprises his response to the delegate's decision. To the extent he takes issue with those findings I consider this does not constitute new information and I have had regard to it. In his submission the applicant also made the new claim that he would be perceived by the Sri Lankan army (SLA) as a Liberation Tigers of Tamil Eelam (LTTE) supporter due to his association with student movements while he was in Sri Lanka. This claim was not before the delegate and I consider it to be new information. The new claim relates to matters wholly within the knowledge of the applicant and relate to matters that pre-date the delegate's decision. The applicant has not advanced reasons why the information could not have been provided before the delegate made the decision nor why it may be regarded as credible personal information that was not known, and had it been known may have affected the consideration of the applicant's claims. I note the applicant was not legally represented in his SHEV application process and interview. However, he was informed at the beginning of his SHEV interview that the IAA is only able to consider material provided to the Department unless exceptional circumstances apply and that further information may be considered if provided before a decision is made. The applicant's interview was conducted in the Tamil language and he indicated that he understood the interpreter and did not otherwise appear to have difficulty participating in his SHEV interview. He was also specifically asked at the end of his interview whether he was sure he had put forward all his claims and he stated he had. In the circumstances, I am not satisfied in relation to the matters set out in s.473DD(b) of the Act. 47 As is revealed by the terms of s 473DD, information amounts to 'new information' if it meets two conditions. The first is that the information was not before the Minister at the time of making the referred decision. The second is that the Authority considers that the information might be 'relevant' to the review, meaning 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 v Minister for Immigration and Border Protection [2020] HCA 37; (2020) 269 CLR 494 at [3]. 48 The High Court in AUS17 confirmed that s 473DD(b) imposes a duty on the Authority to consider whether any new information it receives meets the statutory criteria set out in that section and can thereby be taken into account by the Authority in the making of its decision. In undertaking that analysis the plurality in AUS17 mandated that the proper way to assess new information was to first assess whether it satisfies the criteria set out in s 473DD(b)(i) and s 473DD(b)(ii), before assessing the information against s 473DD(a). If either or both of the criterion in s 473DD(b)(i) or (ii) is satisfied, then that is a circumstance to be taken into account in assessing s 473DD(a): AUS17 at [11]-[12]; BXT17 v Minister for Home Affairs [2021] FCAFC 9; (2021) 283 FCR 248 at [137] (Markovic, O'Callaghan and Anastassiou JJ). 49 I consider that the Authority's reasons indicate that it properly complied with its duty under s 473DD. It commenced by identifying which aspect of the submissions and documents constituted new information and then turned to the matters relevant to s 473DD(b). 50 As to the written submission, the Authority's finding that only part of the submission was new information is apparent from the content of the submission - the only new information was a claim that the appellant would be perceived by the SLA as an LTTE supporter due to his association with student movements while in Sri Lanka. The Authority then turned to consider whether the information could have been provided to the delegate before the decision, and whether it was credible personal information, having regard to the full disclosure that had been made to the appellant prior to the hearing before the delegate of the need to put forward all relevant information. These were matters clearly relevant to a consideration of s 473DD(b) and the Authority expressly referred to s 473DD(b) and not s 473DD(a). Therefore, it is apparent that the Authority undertook the task in a manner consistent with that mandated by AUS17. 51 As to the parts of the submissions that were not new, the Authority indicated it would have regard to them. 52 As to the Human Rights Watch bundle, the Authority noted that it was not before the delegate and that it constituted new information. It then noted both the date, which predated the delegate's decision, and that it did not relate to the appellant personally. Again, these observations relate to s 473DD(b) and it is apparent that the Authority undertook the task in a manner consistent with that mandated by AUS17. The fact that it did not expressly refer to s 473DD(b) when making those observations is not determinative: it is apparent from its reasons that it had in mind s 473DD(b). 53 As to the extracts from the Prevention of Terrorism Act, the Authority observed that the provisions were incorporated in country information that was before the delegate (more particularly, the DFAT Country Information Report Sri Lanka, dated 18 December 2015) and so the information in the extracts was not new and did not fall to be considered in the context of s 473DD(b). Rather, it was within information already before the Authority. 54 The appellant has not satisfied me that the Authority failed to have regard to any new information that it should have taken into account or failed to meet its obligations as mandated in AUS17. The appellant has not pointed to any other evidence that he asserts was disregarded by the Authority.
No articulated grounds 55 During the course of the hearing I encouraged the appellant to identify any particular evidence that he asserted was overlooked by the Authority or the primary judge. He was unable to point to anything, although he did indicate that it was difficult to provide proof of matters such as the fact that he had been forcibly taken by the LTTE. That he had been forcibly taken by the LTTE for three days was a claim that was accepted by the Authority, so the Authority did not draw an inference adverse to the appellant from an absence of further evidence in that particular regard. 56 Otherwise, the appellant was not able to point to any particular evidence said to have been overlooked but instead made general complaints as to the findings of the Authority, indicating disagreement with those findings. None of the matters referred to pointed to any jurisdictional error on the part of the Authority or error on the part of the primary judge.
Submission provided during hearing 57 During the hearing the appellant also handed up a one-page letter that was accepted by way of a written submission. Despite the lack of notice, counsel for the Minister was in a position to address the contents of the letter. Much of the letter constituted dissatisfaction with the outcome of the Authority's consideration of the merits of the claims, reiterating concerns about his safety upon any return to any part of Sri Lanka, but without engaging with or pointing to any particular error said to have been made by the Authority or primary judge. 58 However, there were two matters that might have purported to constitute appeal grounds relating to the decision of the primary judge, but they were not established. 59 First, there was a complaint that the primary judge did not engage with the facts, with a reference to [6] of the reasons of the primary judge. That paragraph addresses the Authority's decision not to call for or obtain a document that was referred to in the appellant's submission provided to the Authority (letter from the 'Member of Parliament from Sri Lanka'). The appellant did not provide the document. The primary judge referred to the Authority's reasons where it explained why it did not obtain the document, and the absence of any obligation on its part to do so. 60 The statutory provisions support the approach of the Authority: s 473DF(4). The Authority also noted that the appellant had received a fair and reasonable opportunity to provide information and evidence in support of his claim. Accordingly, the primary judge's conclusion that the Authority gave proper reasons for not seeking out the document that the appellant referred to but did not provide does not disclose error. 61 Second, there was criticism that the primary judge failed to examine the factual findings reflected at [12] of his reasons. Paragraph [12] refers to the Authority's consideration of the Immigrants and Emigrants Act 1949 (Sri Lanka). 62 The Authority accepted that the appellant had left Sri Lanka unlawfully and that he would be identified on return as an illegal departee and failed asylum seeker. The Authority considered the effect of this in some detail (paras 38-45 of its reasons). It relied upon country information in reaching its conclusion, including information provided by Sri Lanka's Attorney General's Department, which is responsible for prosecutions. It accepted that the appellant would be questioned upon return to Sri Lanka: see para 45 of the reasons, extracted at [25] above. 63 The appellant did not refer to any error in the Authority's approach to this issue, or conflicting country information or other evidence before the Authority that might undermine the conclusion it reached. It is true that the primary judge did not analyse the Authority's findings in any particular detail, but he accurately summarised them. The primary judge was alive to the relevance of the issue and did not overlook it.
Conclusion 64 I have carefully read the reasons of the Authority and the primary judge, taking into account the fact that the appellant is self-represented. I am not persuaded that the Authority's reasons disclose jurisdictional error. Nor has error on the part of the primary judge been disclosed. The primary judge was correct, in my view, to dismiss the appellant's review application before the Federal Circuit Court. 65 It follows that the appeal is dismissed. 66 The appellant is to pay the first respondent's costs fixed in an amount sought by the Minister, and being less than the scale fee, and being the sum of $5,000. I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Banks-Smith.
AJJ17
Minister for Immigration, Citizenship and Multicultural Affairs
Statutory context 8 Part 7AA of the Act provides a limited form of review of certain decisions to refuse protection visas to some visa applicants. This includes visa refusal decisions relating to applicants who are unauthorised maritime arrivals that entered Australia on or after 13 August 2012 but before 1 January 2014. The appellant is within this cohort. 9 The manner in which Part 7AA operates has been the subject of a number of High Court authorities: Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217 at [13]-[38]; BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 268 CLR 29 at [3]-[17]; CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 268 CLR 76 at [2]-[8]; Minister for Immigration and Border Protection v CED16 [2020] HCA 24; and ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; (2020) 269 CLR 439. 10 In short, the review conducted by the Authority is a limited form of merits review established under Part 7AA of the Act. There is no obligation on the Authority to invite a review applicant to appear before it to give evidence and present arguments relating to the purported issues arising in the decision under review. This distinguishes the process in Part 7AA from that contemplated in Parts 5 and 7, where s 360 and s 425 impose an obligation on the Administrative Appeals Tribunal to invite the applicant to appear before it to give evidence and present arguments regarding the decision under review. Of some importance in this appeal is the fact that no new information is to be taken into account by the Authority unless certain criteria set out in s 473DD are met. Reviews are generally conducted on the papers.
(2020) 269 CLR 439
(2020) 269 CLR 494
(2019) 268 CLR 29
(2021) 283 FCR 248
(2019) 268 CLR 76
(2018) 264 CLR 217