AJJ17 v Minister for Immigration, Citizenship and Multicultural Affairs

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.