5.1 Ground 1
18 In ground 1, the constructive failure to exercise jurisdiction by the IAA alleged by the appellant concerns the refusal of the Authority to consider all of the additional documents that it considered fell within the definition of "new information". The appellant contends that the FCCA erred in finding that the IAA did not constructively fail to exercise its jurisdiction.
19 In its written submissions, the appellant identifies four items of wrongly rejected new information; (a) a claim that the EPDP suspected the appellant was using his role in a youth organisation to fundraise for the LTTE (fundraising claim); (b) information regarding the 27 September 2012 Hindu festival that the appellant claimed to have participated in (festival information); (c) a letter of support dated 21 June 2017 from a member of the Northern Provincial Council (21 June 2017 letter); and (d) the 17 July 2013 Warrant for Arrest (Warrant). Broadly, the appellant submits that the rejection of each was based on a misapplication of the requirements of s 473DD of the Act because of a failure on the part of the Authority to recognise that the requirements of subsections 473DD(a) and (b) are cumulative but may nonetheless overlap to some extent, citing BVZ16 at [9]. The appellant also contends that the reasons provided by the primary judge were inadequate because they simply repeated matters of general principle without tying the principles to the finding of the Authority or the submissions advanced to it; BDS17 v Minister for Immigration and Border Protection [2018] FCA 1683.
20 The Minister defends the decision of the primary judge on the basis, broadly, that the IAA assessed the new information in each case by reference to a range of matters, notably the temporal aspects (whether the information was before the Delegate), the explanatory aspects (whether an explanation had been provided) and the probative significance of the material (whether the material was credible or capable of being believed). The Minister submits that the absence of reference to subsection 473DD(b) or extended consideration of the matters in subsection 473DD(b), is not determinative so long as the consideration of matters in subsection 473DD(a) engaged with the circumstances in which the material was provided, including the probative value of the material. In any event, the Minister contends that the matters in subsection 473DD(b) were considered, for example by reference to the veracity of the fundraising claims at paragraph [5] of the IAA's decision and the fact that the information was not personal information (at paragraph [7] of the IAA's decision).
21 In AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111, the Full Court (McKerracher, Murphy and Davies JJ) considered several recent decisions bearing upon s 473DD, including BVZ16. It summarised the effect of White J's reasoning in that case as being that, whilst the requirements of subsections 473DD(a) and (b) are cumulative, they may nevertheless overlap and because subsections 473DD(i) and (ii) involve different considerations, both considerations are potentially relevant in considering whether the circumstances are "exceptional" and meet the requirements of subsection 473DD(a). The Full Court said at [13]:
As a matter of construction, it is undoubtedly correct that s 473DD(a) and s 473DD(b) are cumulative requirements. Section 473DD(a) imposes the requirement that the Authority must not consider new information unless it is satisfied that there are exceptional circumstances to justify considering the new information. Section 473DD(b) imposes the further requirement that the new information was not, and could not have been, provided to the Minister before the Minister made the decision to refuse to grant the protection visa (s 473DD(b)(i)) or is new information that 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 (s 473DD(b)(ii)). "Exceptional circumstances" is not a defined term for the purposes of s 473DD(a) and the words are to be given their ordinary meaning. In ordinary meaning, circumstances are "exceptional" if the circumstances may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon: BVZ16; Plaintiff M174. In Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 353 ALR 600] the plurality (Gageler, Keane and Nettle JJ with whom Gordon and Edelman JJ each agreed in separate reasons) observed at [30] in relation to the requirement in s 473DD(a):
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".
The quotation is from R v Kelly at [51], which was also cited in BVZ16 for the meaning "exceptional circumstances" in the context of s 473DD(a). There may be a combination of factors which, when viewed together, constitute "exceptional circumstances", or one factor of its own which may be sufficient for "exceptional circumstances" to exist. In each case, whether there are exceptional circumstances must depend on the particular circumstances of the visa applicant's case.
22 The High Court refused the special leave application to appeal from the Full Court's decision in AQU17; AQU17 v Minister for Immigration and Border Protection [2018] HCASL 327.
23 As the plurality in Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 353 ALR 600 made clear, what will amount to exceptional circumstances is inherently incapable of exhaustive statement. Each case will be different to every other case and must be treated on its merits and the matters for the Authority to take into consideration must necessarily vary from case to case. It is a misconception that the factors in subsections 473DD(b)(i) and (ii) of the Act must, in all cases, be considered by the Authority in deciding whether "exceptional circumstances" exist as subsection 473DD(b) does not codify what constitutes "exceptional circumstances". Rather, subsection 473DD(b) sets out the further preconditions that must also be met before the Authority can consider the new information cumulatively upon the precondition set out in subsection 473DD(a); Plaintiff M174 at [31]. In many cases consideration of the factors in subsections 473DD(b)(i) and/or (ii) may assist the Authority in deciding whether or not it is satisfied that exceptional circumstances exist, but whether those factors will have bearing upon that decision will depend on the particular case.
24 Having regard to these principles, I now turn to consider each of the items of new information identified by the IAA.
25 In the case of the fundraising claim, the IAA's findings are at paragraphs [5] and [6], which are set out above. Whilst no specific reference is there made to s 473DD, it is apparent from later paragraphs that the IAA here addresses the requirements of that section. In paragraph [5], the IAA observed that no explanation had been provided as to why the claim was being raised late, or why it should be considered by the IAA. The former may be considered to go to the consideration in subsection 473DD(b)(i), the latter to the aspect of subsection 473DD(b)(ii) insofar as the question is how the information may have affected the consideration of the appellant's claims. These points are developed in paragraph [6], where the IAA observed that the appellant had the assistance from a solicitor to prepare his initial claims and was represented by the solicitor at the SHEV interview, yet the additional information was only brought forward recently. Here, the IAA was engaging with the subsection 473DD(b)(i) requirement and considering whether the appellant had satisfied it that the new information could not have been provided before the Minister made the decision under s 65. The IAA then considered that the lateness also raises questions as to the veracity of the claim. This engages with subsection 473DD(b)(ii), as to whether it is credible personal information. Having regard to each of these matters, the IAA then concluded that it was not satisfied that there are exceptional circumstances to justify consideration of the new claim. This engages with the statutory question in subsection 473DD(a). No error is demonstrated in this approach.
26 The IAA then addressed the festival information in its reasons at paragraphs [7] and [8]. Three brief points may be made about this aspect of ground 1. First, the submissions advanced on behalf of the appellant before the primary judge indicate that the complaint arising from the refusal by the IAA to consider the additional festival information was abandoned. Secondly, the reason for that was that, as the submission said, the IAA accepted the appellant's claim concerning the festival in its entirety and accordingly the failure to accept the additional festival information was irrelevant. This submission must be accepted. As much is apparent from the reasoning of the IAA at paragraph [18]. Thirdly, and in any event, the briefly expressed reasons of the IAA, taken in the context of the earlier paragraphs of its reasons, indicates that it did have regard to the proper considerations in determining that the circumstances did not warrant the inclusion of that information.
27 The IAA addressed the 21 June 2017 letter and the Warrant (as well as a letter dated 20 June 2017 from the Jaffra Teaching Hospital, which was identified as a fifth item of wrongly rejected new information in the FCCA appeal but not pressed in this Court) in its reasons at paragraphs [9] - [12]. Having regard to the principles relevant to the application of s 473DD as set out in AQU17, in my view the reasons of the IAA do not reflect the error asserted. In relation to each item of information, the IAA provided a brief summary of the nature of the information, reviewed its content, considered the circumstances in which it was provided and determined that the requirements of the section were not met.
28 Although not a ground of appeal, in his written submissions the appellant contends that the primary judge failed to give adequate reasons for his decision in relation to the alleged new information. It is true that the reasons given by the primary judge are brief. In particular, those reasons, whilst referring to the decision of the IAA at paragraphs [5] and [6] (which concern the new fundraising claim), do not go on and in terms refer to the balance of the complaints made concerning the new information, and in particular do not include specific findings in relation to the 21 June 2017 letter and the Warrant. However, as the Minister points out in his written submissions, this criticism is to be considered in the context of the way that the argument was put to the primary judge below. In his written submissions, the appellant contended before the primary judge that the errors of the IAA in respect of the 21 June 2017 letter and the Warrant were the same as those for the fundraising claim. Although the primary judge should perhaps have been more meticulous in his reasons to state that the challenge to the reasoning in paragraphs [5] and [6] of the Authority's reasons failed, and accordingly the equivalent challenge to the reasoning of the IAA in paragraphs [7] - [12] also failed, in my view, having regard to the submissions below, that is how the reasoning of the primary judge should be understood. Furthermore, as I have noted, I do not find there to be any error in the reasoning of the IAA insofar as it concerns the analysis in paragraphs [7] - [12] of the IAA's reasons. Accordingly, ground 1 of the appeal must be dismissed.