CONSIDERATION
27 As became clear at the hearing, the crux of the appellant's case was that the IAA erred in terms of s 473DD(b) of the Migration Act by its finding at [39] of its reasons (confirmed at [40] of its reasons) that the evidence of the appellant was fabricated. The appellant submitted, in summary, that all comments of the IAA in the course of its decision referable to credibility were findings towards its ultimate conclusion, namely that the evidence was untrue, and to that extent the IAA erred because it was required to make findings of credibility, not truth.
28 In my view, the Minister was correct in submitting that the IAA complied with the requirement to consider whether the new information was "credible" and that the approach of the appellant was too narrow.
29 As the High Court explained in Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16 at [34] in order to meet s 473DD the decision-maker must be satisfied that:
the information is credible information about an identified individual, or an individual who is reasonably identifiable;
the information was not previously known by either the Minister or the visa applicant; and
had the information been known by either the Minister or the visa applicant, the information may have affected the consideration of the referred applicant's claims.
30 Subsequently in AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494; [2020] HCA 37 the High Court explained:
11. Logic and policy therefore demand that the Authority assess such new information as it might obtain from the referred applicant first against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and only then against the criterion specified in s 473DD(a). If neither of the criteria specified in s 473DD(b)(i) and s 473DD(b)(ii) is met, the Authority is prohibited from taking the new information into account in making its decision on the review. Further assessment of the new information against the criterion specified in s 473DD(a) is redundant. If either the criterion specified in s 473DD(b)(i) or the criterion specified in s 473DD(b)(ii) is met, that is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a). If both the criterion specified in s 473DD(b)(i) and the criterion specified in s 473DD(b)(ii) are met, that too is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a) and which must heighten the prospect of that criterion being met.
12. The result, as has been recognised by the Federal Court in numerous other cases, is that the Authority does not perform the procedural duty imposed on it by s 473DD in its conduct of a review if it determines in the purported application of the criterion in s 473DD(a) that exceptional circumstances justifying consideration of new information obtained from the referred applicant do not exist without first assessing that information against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and then taking the outcome of that assessment into account in its assessment against the criterion specified in s 473DD(a). The nature of the non-performance of the procedural duty in such a case is not inaccurately characterised as a failure to take account of a mandatory relevant consideration in the purported application of the criterion in s 473DD(a).
31 The meaning of s 473DD(b), para (i) is clear. In respect of para (ii) there has been some discussion in the cases concerning the meaning of "credible" for the purposes of the provision, however as is plain from Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020] FCAFC 159 (applying Bromberg J in CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 at [42]) "credible" in the context of s 473DD(b)(ii) requires that the IAA be satisfied that the "new information" is information which is open to be or capable of being accepted by the IAA as truthful (or accurate, or genuine).
32 Turning now to the reasons of the IAA in this case referrable to the new information, it can be seen that those reasons are primarily couched in terms of the credibility of that information. There are many observations by the IAA in relation to the credibility of that information. I note in particular:
Paragraph [28] where the IAA said:
However, for reasons set out below I find the new claims in this case lacking in credibility, and the explanations unconvincing, and I am not satisfied there are exceptional circumstances that justify considering the new information
Paragraph [32] where the IAA said:
…However, I consider it odd that applicant 2 should decide to disclose only now for 'peace of mind', and not earlier, given the delegate's refusal was in 2017 and the applicant's explanation that she did not want to return as she feared the same thing for her children. I find it difficult to reconcile her claims that she could disclose it now for peace of mind and to avoid harm for her and her daughters when this would have been the situation in 2017. Further, I find it difficult to believe that given the refusal at that time, and the availability of a counsellor and a lawyer, she would not have found a way to make these claims, if true.
Paragraph [33] where the IAA said:
…That applicant 2 did not raise the claims, even in a general and confidential way that leads me to doubt the genuineness of the claims.
Paragraph [34] the IAA observed:
Finally, even having regard to country information in the review material (and new country information considered below) about sexual violence in Sri Lanka and the reluctance to disclose it, the claims themselves lack credibility on their face. For instance, it is not credible that authorities would be looking for applicant 1's husband at home, if as he claimed he travelled through checkpoints frequently and had to unload his goods each time he crossed from LTTE to army controlled area.
Paragraph [35] where the IAA said:
That applicant 2 and her mother in law would continue to stay at home alone and say nothing or seek no assistance from her husband to move or some protection, or move to her parents' home is not credible.
Paragraph [36] the IAA continues:
Further, the frequency of the claimed assaults seems implausible and in particular, it is difficult to believe that no evasive action would be taken, or that it would not have been noticed or discovered or suspected by applicant 1 at the time. Further, it is not credible that applicant 1 or others did not know or suspect, particularly given claims that neighbours suspected…
And for example paragraph [38]:
Further, it is difficult to believe that applicants 1, 2 and 3 would flee and hide at applicant 2's parents' house in 2013, if it was across the street or 5 minutes away from the army camp. Overall, I do not consider the information is reliable or credible.
33 In these comments the IAA was considering whether the new information sought to be advanced by the appellants was capable of being believed, and the IAA concluded that it was not.
34 Second, para [39] of the IAA's reasons was as follows :
I consider applicant 2's claims have been fabricated to overcome the delegate's findings on applicant 1's claims that as they would be returning as part of a family there was not a real risk (or chance) of the female applicants facing harm as vulnerable females.
35 This paragraph, while expressed in a conclusory manner, can properly be read as an additional comment following the extensive reasons of the IAA as to why the information sought to be advanced by the appellants was not credible. That it is additional can be seen from an examination of the reasons of the IAA as a whole - all of the IAA's findings concerning credibility can stand properly on their own. I so observe, noting that, as always, the reasons of an administrative decision-maker ought not be read with an eye finely attuned to the perception of error.
36 It follows that I am not persuaded that the IAA conducted a final review based on its assessment of the credibility of that new information, or decided the appellant's protection visa claim by reference to the new claim of sexual assault by the appellant.
37 The primary Judge in his consideration of the case plainly had close regard to relevant authorities on point. To the extent that his Honour at [16]-[17] assessed the IAA's findings concerning the appellant's new claims as "incredible", or at [19] that the IAA was doing no more than determining that it was satisfied that the information was "evidently not credible", I ascertain no error in his Honour's reasoning.
38 Ground of appeal 1 is not substantiated.
39 In relation to ground of appeal 2, the required threshold of unreasonableness is high: Minister for Home Affairs v DUA16 (2020) 271 CLR 550; [2020] HCA 46 at [26]. An administrative decision cannot be said to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [131].
40 I note that, by the time of the hearing, the appellant's claim of legal unreasonableness had substantially narrowed. The primary complaint of the appellant in this context was the finding of the IAA at [36] of its reasons that the frequency of the claimed assaults seemed implausible, and that it was difficult to believe that no evasive action would be taken, or that it would not have been noticed or discovered or suspected at that time by the appellant's husband. The appellant contended that the IAA erred in failing to grapple with the issue of the alleged rapes, and that the IAA failed to deal in a meaningful way with the explanation that the appellant's husband was absent at the time of the rapes. I agree however with the observation of the primary Judge that, in this ground, the appellant sought merits review, and to cavil with findings of the IAA. The IAA gave detailed consideration of evidence produced by the appellant. Before the IAA the appellant was legally represented, and relevant claims could have been put to the IAA. The IAA considered country information concerning sexual violence against women in Sri Lanka. I do not accept that the findings of the IAA in this regard could be characterised as being so unreasonable that no reasonable person could have reached them.
41 In my view ground of appeal 2 is not substantiated.