AMV17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

1. The appellant has leave to amend the notice of appeal in the form annexed to his written submissions filed on 31 January 2020.
2. The appeal be allowed.
3. Order 1 of the orders of the Federal Circuit Court of Australia made on 26 July 2019 be set aside and the matter remitted to the Immigration Assessment Authority for determination according to law.
4. The first respondent pay the appellant's costs of the appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

DAVIES J: 1 The appellant has appealed a decision of the Federal Circuit Court of Australia (FCC) dismissing his application for judicial review of a decision of the Immigration Assessment Authority (Authority) affirming a decision of a delegate of the first respondent (the Minister) not to grant the appellant a safe haven enterprise visa (protection visa). The appellant had legal representation in the FCC, but was self-represented at the time he filed the notice of appeal and the grounds as framed do not identify any appealable error. Since filing his appeal, the appellant has obtained legal representation and has sought leave to file and serve an amended notice of appeal raising the single ground: The primary judge erred in finding that the Authority made no jurisdictional error in the manner it considered whether new information met the requirements of s 473DD of the [Migration Act 1958 (Cth)] as the Authority had misconstrued the requirements of that section. 2 Leave to amend was opposed by the Minister on the basis that the proposed ground was not raised in the Court below, no information provided as to why it was not raised and, it was argued, in any event the proposed ground lacks merit. 3 The question for the Court in determining whether leave should be granted is whether it is expedient in the interests of justice for arguments which were not before the primary judge to be considered for the first time on appeal: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 at 598 [46]. The proposed ground as framed was not raised in the Court below but it is not an entirely new ground raising a new issue which was not considered by the FCC. In the court below, the appellant challenged the Authority's failure to consider new information provided to it by the appellant's advisers: [18]; [38]; [49]. Albeit the arguments were put differently, the FCC nevertheless considered whether there was a misapplication of s 473DD of the Migration Act 1958 (Cth) (the Act): [24]-[33]; [41]; [50]. In the circumstances, a primary consideration in weighing up the interests of justice is that the proposed ground raises a legal question already considered by the FCC. As the proposed ground raises a legal question and the Minister did not suggest any prejudice, leave to amend should be allowed. 4 The appellant is a citizen of Sri Lanka. His claims supporting his protection visa application included that he would be tortured and killed if he returned to Sri Lanka because there are unidentified men looking for him. The delegate did not accept that claim or the other claims made by the appellant and refused to grant the appellant a protection visa. After the delegate made his decision on 31 August 2016, the appellant's migration agent made three additional claims in a submission to the Authority dated 3 October 2016. The appellant's additional claims were that: (a) he participated in the Liberation Tigers of Tamil Eelam (LTTE) Heroes Day celebration and Tamil Genocide Remembrance event in Sydney, and also attended protests in Canberra (diaspora claim); (b) members of the Pillayan group threatened the appellant's aunt in 2013 and the aunt made a complaint to the Human Rights Commission of Sri Lanka. In support of this claim, the submission attached a document described as "Human Rights Commission of Sri Lanka Complaint No …/2013" (HRCSL claim); (c) unidentified men had come to the appellant's aunt's house on 9 August 2016 looking for the appellant and had attacked the aunt, causing her serious injuries for which she was hospitalised from 11 to 14 August 2016. The submissions included the translation of a police report purported to be made by the aunt on 10 August 2016 and a medical report of the aunt's hospitalisation (aunt's claim). The migration agent submitted that there were exceptional circumstances justifying the Authority considering each of the new claims. The migration agent explained that the information about the diaspora claim was not provided to the delegate because the appellant did not realise that his Tamil diaspora activities in Australia were important to his case and his former migration agent did not give him proper advice about the diaspora claim. As to the aunt's claim, the migration agent stated that the information was not provided to the delegate because the assault on the aunt occurred after the date of the appellant's protection visa interview and the police report and medical report "were only made available to the [appellant] recently". It was submitted on the basis of the diaspora claim and the aunt's claim that the appellant's life was at risk and he faced a real chance of persecution if returned to Sri Lanka. The submissions were silent as to why there were exceptional circumstances justifying the Authority considering the HRCSL claim. 5 The Authority accepted that each of the claims and accompanying material was "new information" that was not before the delegate, but was not satisfied there were exceptional circumstances which justified considering the new claims. 6 As to the diaspora claim, the Authority did not find it plausible that the appellant would be unaware his attending Tamil diaspora activities in Australia may be relevant to his claims for protection and found he could have raised this claim before the delegate, if it was a genuine reason he feared returning to Sri Lanka. The Authority also took into account that there was no primary evidence from the appellant about attending any diaspora event, the information in the submission about his attendance was vague, and the material inconsistencies in the coordinator's letter provided in support of the claim as against the other evidence before the Authority undermined the credibility of the letter. The Authority was not satisfied that the appellant could not have provided evidence of this claim to the delegate or satisfied that the appellant attending diaspora events was unknown to the appellant at the time of the delegate's decision. 7 As to the HRCSL claim, the Authority reasoned that the claim related to events prior to the delegate's decision. The Authority was not satisfied that the appellant was unable to provide the information related to that claim to the delegate or that the claim was unknown to the appellant at the time of the delegate's decision. 8 As to the aunt's claim, the Authority gave the following reasons for its decision at [11]: …Again, there is no primary evidence before me from the [appellant] or his aunt in relation to the aunt's claim. While I note claimed assaults on the aunt occurred after the date of the [protection visa] interview, they also occurred prior to the date of the delegate's decision. The IAA submission is unclear as to when the [appellant] became aware of the information related to the aunt's claim. On the evidence before me, I am not satisfied the [appellant] was unable to provide information regarding the aunt's claim to the delegate. I am also not satisfied the information regarding the aunt's claim was unknown by the [appellant] at the time of the delegate's decision. I am not satisfied there are exceptional circumstances which justify my considering the aunt's claim. 9 The single ground of appeal challenges the Authority's approach to s 473DD of the Act and whether the new information upon which the appellant sought to rely should have been considered by the Authority. 10 Section 473DD of the Act provides: 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. 11 The appellant argued that the Authority misapplied the criterion in s 473DD(b)(ii) by focusing only on whether the new information was information which was not previously known by the appellant. It was submitted that the phrase "which was not previously known" in s 473DD(b)(ii) means not previously known by either the Minister or the referred applicant (citing Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; 257 FCR 111 (BBS16) at 144-5 [106]) and the Authority should have, but did not, consider whether the information, if it had been known by either the Minister or the appellant, may have affected the consideration of the appellant's claims for protection. It was further submitted that because of the misapplication of s 473DD(b)(ii), the Authority did not properly consider the factual matrix of the circumstances of the application before it in its application of the statutory test under s 473DD(a). It was submitted that had the Authority not misapplied s 473DD(b)(ii), the Authority would have had to consider the exceptional circumstances requirement in s 473DD(a) on the basis that the requirement of s 473DD(b)(ii) was met. It was further submitted there was a realistic possibility that the decision could have been different had this error not occurred in relation to the new information. 12 It is clear on the authorities that the requirements in s 473DD are cumulative: Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110; 264 FCR 251 at 257 [36]; AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111 (AQU17) at [13]. It is also clear on the authorities that determining whether information is credible personal information which was not previously known by either the Minister or the referred applicant may bear upon whether there are exceptional circumstances. As the cases illustrate, consideration of the matters in s 473DD(b) will sometimes be relevant to the s 473DD(a) exceptional circumstances requirement: see e.g. BBS16 at [102]; CAQ17 v Minister for Immigration and Border Protection [2019] FCAFC 203 (CAQ17) at [83] and [91] per Derrington and Steward JJ. But it is a misconception that the factors in s 473DD(b) must, in all cases, be considered by the Authority in deciding whether "exceptional circumstances" exist: AQU17 at [14]. In CAQ17, the plurality (Derrington and Steward JJ) observed at [90]-[92]: However, seeking to ascertain what factors must be considered in reaching the state of satisfaction or non-satisfaction for the purposes of s 473DD(a) may be the wrong approach. As the overall question for the authority involves a factually idiosyncratic analysis where the facts and circumstances which might support or deny the existence of exceptional circumstances will vary from case to case, it may simply be that it is not possible to identify, as a matter of statutory construction, what are or are not matters or factors which must be considered. In the reaching of the relevant state of mind, perhaps the real question is whether the Authority has asked itself the correct question and applied the correct test, being whether there are exceptional circumstances to justify the consideration of the "new information" despite it not having been before the Minister when the initial decision was made. If the Authority has failed to consider significant matters factually relevant to the question of whether exceptional circumstances existed, it is likely that an inference arises that it either asked itself the wrong question or failed to apply the correct test. In that way it is not that the legislation mandates consideration of particular facts or types of fact, but that it requires the Authority to consider the factual matrix of the circumstances of the application before it and apply the prescribed statutory test. Those circumstances will dictate those factors which are obviously relevant factors and those which are obviously irrelevant. Necessarily, a consideration of whether there are exceptional circumstances may, in a particular case, require the Authority to examine facts relevant to the matter to be considered in sub-paragraph (b) of s 473DD: CMY17 v Minister for Immigration and Border Protection [2018] FCA 1333 at [26]. There is no requirement that they be considered in all cases. However, as the "exceptional circumstances" are required to exist to justify a departure from the general prohibition on the consideration of "new material" as imposed by s 473DB(1), the facts relevant to the matters in sub-paragraphs (b)(i) and (ii) which will often be pertinent to whether exceptional circumstances exist are those relating to why the information was not before the Minister when the original decision was made. Each sub-paragraph has elements which give rise to such temporal consideration, in that (b)(i) refers to information which was not and could not have been provided to the Minister at the relevant time and (b)(ii) refers to information which was not known at that earlier time. So matters relevant to why the information was not or could not have been provided to the Minister or to why certain information was not known earlier will frequently be relevant to whether exceptional circumstances exist. Whether they are in a particular case will depend upon the circumstances. That is not to say that matters concerning the substance or merits of the new information will not sometimes be relevant. Were a piece of compelling information in existence at the time of the Minister's decision but not revealed due to an oversight, its degree of relevance may tip the scales towards a favourable decision, whereas less significant information may not have done so in the same circumstances. The premise of the appellant's submissions is that the Authority considered both s 473DD(a) and s 473DD(b)(ii), as distinct from giving consideration to whether any of the new information was information that the appellant could have provided to the delegate prior to the delegate's decision as part of considering whether there were exceptional circumstances to justify considering the new information. However, on a fair reading of the Authority's reasons, the Authority only examined the requirement under s 473DD(a) and, having determined that there were no exceptional circumstances justifying consideration of the new information, the Authority considered it was not obliged separately to consider s 473DD(b)(i) or (ii). 13 In relation to the diaspora claim, the Authority considered the plausibility of the explanation that the appellant gave for not advancing the claim before the delegate and assessed the quality of the evidence on which it was based as matters bearing upon whether exceptional circumstances existed. In relation to the HRCSL claim, the Authority considered the material in support and whether it was information that was known to the appellant at the time of the delegate's decision or information that the appellant was able to provide to the delegate. As to the aunt's claim, the fair reading of the Authority's reasons is that the Authority also only considered the "exceptional circumstances" criterion in s 473DD(a) and did not consider s 473DD(b)(ii). This is clear, in my view, from [8] of the reasons where the Authority recorded that: … The third new claim is unknown persons attacked the [appellant's] aunt on 9 and 14 August 2016 ("the aunt's claim"). The migration agent submits there are exceptional circumstances which justify my considering the aunt's claim because the [protection visa] interview was conducted in May 2016 and the information about the aunt's claim was "…only made available to the [appellant] recently". The migration agent again submits on the basis of the aunt's claim, the [appellant's] life is at risk. Read with [8], the reasons that later follow deal only with the submission that there were exceptional circumstances to justify considering the new information, consistent with the submission made. No other paragraph suggests that the Authority separately considered whether s 473DD(b)(ii) was satisfied. Whilst the matters in [11] may have been considerations relevant to whether s 473DD(b)(ii) was satisfied, the Authority, in making reference to those matters, was dealing with the matters that the migration agent put forward for assessing whether there were exceptional circumstances for the purposes of s 473DD(a). As I have not accepted that the Authority considered the requirement in s 473DD(b)(ii), I reject the appellant's contention that the Authority fell into error by considering only whether the information was not known by the appellant at the time of the delegate's decision. 14 The next issue is whether, in the present case, a consideration of whether there were exceptional circumstances to justify considering the new information required the Authority in this case to examine the facts relevant to the matters to be considered under s 473DD(b)(ii). The appellant did not seek to rely on s 473DD(b)(i), which would require him to show that the new information "was not, and could not have been, provided to the Minister" before the decision was made. Since the events underpinning the new information took place prior to the delegate's decision, the appellant would be unable to prove that the new information could not have been provided before the delegate's decision was made. In relation to the diaspora claim, the Authority did consider the credibility of the claim and although there was no express finding in relation to s 473DD(b)(ii), the Authority plainly based its conclusion that exceptional circumstances did not exist upon its lack of satisfaction that the new information was credible information, as well as being information which could have been provided by the appellant to the delegate. In relation to the HRCSL claim, the Authority based its conclusion only upon its lack of satisfaction that it was information which could not have been provided by the appellant to the delegate but nothing has been put to the Court which would indicate that consideration of whether the information, had it been known by the delegate, may have affected the delegate's consideration of the appellant's claims for protection or that there were exceptional circumstances to justify considering that information. In either case, the Authority was not obliged to give consideration beyond the matters which it took into account. 15 I have reached a different view about the aunt's claim. The FCC found there was no jurisdictional error in the manner in which the Authority considered whether the aunt's claims met the requirements of s 473DD of the Act, but without setting out the reasoning by which that conclusion was reached. I am, with respect, unable to agree with the conclusion reached by the FCC. In my opinion, the failure of the Authority to give consideration to the matters prescribed in s 473DD(b)(ii) in deciding whether or not it was not satisfied that exceptional circumstances existed gave rise to jurisdictional error in this case. First, the new information related to an incident that had allegedly recently happened, albeit shortly prior to the delegate's decision. Secondly, the incident and the documentary material, if authentic, was new information which was capable of supporting and lending weight to the claim put forward by the appellant that he would be tortured and killed if he returned to Sri Lanka because there are men looking for him. Thirdly, if the Authority considered it was credible personal information, that information was highly significant in the context of the appellant's claims and may have affected the Authority's consideration of the appellant's claims. If accepted, the new information demonstrated very recent interest in the appellant as well as the fact that the persons who are purportedly interested in the appellant were violent. For these reasons, it was relevant to consider the requirements of s 473DD(b)(ii) as part of informing whether there were exceptional circumstances to justify consideration of the new information for the purposes of s 473DD(a). Had there been such consideration, there is a realistic possibility that it may have affected the Authority's' decision in respect of the s 473DD(a) requirement, with the result that the Authority may have decided to consider the new information underpinning the aunt's claim. 16 Accordingly, the appeal should allowed. The Minister submitted that if the appeal was allowed, the Court should not disturb the costs order against the appellant made by the FCC on the basis that the appeal, if it succeeded, would be on a new ground. Although I consider it appropriate for the reasons given to grant leave to amend the notice of appeal to rely on the ground upon which the appellant has succeeded with respect to the aunt's claim, the point as now argued was not put in those terms before the FCC and whilst the FCC did consider whether there was jurisdictional error in the approach of the Authority, the FCC did so without the benefit and assistance of submissions from counsel who appeared for the appellant below. In the circumstances, I accept the Minister's submission that the cost orders below should not be disturbed. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies.