AZT22 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Legislative framework 107 The Act confers power on the Minister to grant a non-citizen a visa that permits the visa holder to do either or both of travelling to and entering Australia, or remaining in Australia. The Act prescribes a number of different classes of visa, including, in s 35A, a class of visa known as a protection visa. Section 35A provides for a number of different categories of protection visa, including in s 35A(3), a class known as temporary protection visas. 108 A person may apply for a protection visa under s 36 of the Act. Section 36 and Sch 2 to the Migration Regulations 1994 (Cth) set out the criteria that an applicant for a protection visa must meet. An applicant for a protection visa must meet one of the criteria set out in ss 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the refugee criterion, or on other complementary protection grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class. If satisfied of all the relevant criteria for the grant of a visa, the Minister is to grant the visa under s 65 of the Act. The Minister's power to grant a visa under ss 29, 36 and 65 the Act may be (and usually is) exercised by a delegate of the Minister under s 496 of the Act. 109 Part 7AA of the Act provides a limited form of review of certain decisions to refuse protection visas to some applicants, including unauthorised maritime arrivals who entered Australia on or after 13 August 2012, but before 1 January 2014, and who have not been taken to a regional processing country. These applicants are known as fast track review applicants and decisions to refuse to grant them protection visas are known as fast track reviewable decisions. Fast track reviewable decisions made in relation to some applicants are excluded from the fast track review process. These applicants are known as excluded fast track review applicants. Fast track review applicants and excluded fast track review applicants are collectively known as fast track applicants: see, ss 473BA, 473BB, 5(1) of the Act. 110 The Minister must refer a fast track reviewable decision to the Authority as soon as reasonably practicable after the decision is made: s 473CA. A person cannot make an application for review directly to the Authority. The Authority must review a fast track reviewable decision and may affirm the decision or remit the decision for reconsideration: s 473CC. 111 The Secretary (the secretary of the department responsible for administration of the Act) is required to give certain review material to the Authority in respect of each fast track reviewable decision referred to the Authority: s 473CB. The Authority must review a fast track reviewable decision referred to it and may affirm a referred decision or may remit the decision for reconsideration in accordance with directions: s 473CC. 112 Part 7AA, Division 3, together with ss 473GA and 473GB, is taken to be an exhaustive statement of the natural justice hearing rule in relation to reviews conducted by the Authority. Nothing in Part 7AA requires the Authority to give a referred applicant any material that was before the Minister when the Minister made the decision under s 65: s 473DA. Sections 473GA and 473GB contain provisions relating to restrictions on disclosure of certain information to the Authority and for limited disclosure of certain other information to referred applicants. 113 Subject to Part 7AA, the Authority must review a fast track reviewable decision referred to it by considering the review material without accepting or requesting new information and without interviewing the referred applicant. The Authority may make a decision on a fast track reviewable decision at any time after the decision has been referred to the Authority: s 473DB(2). 114 Subject to Part 7AA, the Authority may, in relation to a fast track decision, get any documents or information (new information) that were/was not before the Minister when the Minister made the decision under s 65 and the Authority considers may be relevant: s 473DC. For the purposes of making a decision in relation to a fast track reviewable decision, the Authority must not consider any new information unless certain preconditions are satisfied: s 473DD. The Authority must, in relation to a fast track reviewable decision, give to the referred applicant particulars of any new information but only if the new information has been, or is to be, considered by the Authority under s 473DD and would be the reason, or part of the reason, for affirming the fast track reviewable decision. The Authority must also provide an explanation to the referred applicant and invite the referred applicant to give comments on the new information: ss 473DE, 473DF. 115 Where the Authority makes a decision relevant to Part 7AA, it must make a written statement that sets out the decision of the Authority on the review, the reasons for the decision, and records the day and time that statement is made: s 473EA(1). A decision on a review is taken to have been made by the making of the written statement and on the day and at the time the written statement is made. The Authority has no power to vary or revoke a decision after the day and time the written statement is made: ss 473EA(2), 473EA(3). 116 The Authority must notify the referred applicant of a decision on a review by giving the referred applicant a copy of the written statement. The copy must be given to the applicant within 14 days after the day on which the decision is taken to have been made; and by one of the methods specified in s 473HB. A failure to comply with the obligation to provide a copy of the statement to the applicant does not affect the validity of the decision: s 473EB. Section 473HB makes provision for the methods by which the Authority is to give documents to a person other than the secretary. Certain decisions of the Authority may be published: s 473EC. 117 The Authority, in carrying out its functions under the Act, is to pursue the objective of providing a mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3 (conduct of review). The Authority, in reviewing a decision, is not bound by technicalities, legal forms or rules of evidence: s 473FA(2). 118 Section 474 of the Act provides that a privative clause decision: is final and conclusive; must not be challenged, appealed against, reviewed, quashed or called into question in any court; and is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account. The effect of s 474 is to exclude a court from reviewing and granting relief for any error a decision-maker has made in respect of a privative clause decision. A decision of the Minister or a delegate refusing to grant a protection visa is a privative clause decision. However, as noted above, where a decision has been made to refuse to grant a protection visa, and the decision is a fast track reviewable decision, that decision must be reviewed by the Authority under Part 7AA. A decision of the Authority to affirm a decision to refuse an applicant a protection visa is also a privative clause decision to which s 474 of the Act applies. 119 Notwithstanding the terms of s 474 of the Act, the section does not have the effect of excluding the original jurisdiction of the High Court to review decisions of administrative decision-makers for jurisdictional error under para 75(v) of the Constitution: Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476 at [76]. Where the Tribunal has made or purported to make a privative clause decision, the High Court's jurisdiction to review such a decision for jurisdictional error is conferred on the Federal Circuit Court, except for certain decisions not presently relevant: s 476 of the Act. The Federal Circuit Court's power on such a review is limited to considering the extent to which the Authority exercised its powers within the limits of its statutory authority or failed to exercise powers it was bound to exercise. In other words, 'the inquiry is not about whether a decision which was made in the exercise of the authority was right or wrong on its merits. It is an inquiry about the boundaries of the power conferred: Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [160]. The Federal Court has jurisdiction to hear and determine appeals from judgments of the Circuit Court exercising original jurisdiction under a law of the Commonwealth: s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth).

The Authority's reasons 120 The Authority summarised the protection claims of appellant AZT22 as follows (AZT22 Authority reasons [40]) (footnotes omitted): The wife applicant's claims can be summarised as follows: • She is a Tamil Christian female from the Eastern Province • Her mother and younger sister were the only survivors of an attack on 50 to 60 Tamils in 1991; • She grew up under the threat of sexual violence in Sri Lanka. She knows of women who have been raped. She herself was chased on the street when she was aged 14 years; • Her late husband was taken in a roundup in 2004. He was suspected of LTTE links and mistreated. He died around one year later; • Her current husband, [appellant BIR22], was adversely affected by communal and interethnic violence both growing up in Sri Lanka and during the conflict. In 1990 he was arrested and mistreated suspected of LTTE links; • Her husband was also coerced into providing financial support to the LTTE and pro-government paramilitary groups; • In early 2010 her husband was attacked by armed soldiers and had his jewellery stolen. Later that year, he was abducted by men in a white van; • After opening a restaurant called the Star Hotel in 2012, her husband was targeted by armed groups, beaten, and forced to go into hiding. She and her son (the child [appellant BIS22]) were also threatened; • People have been looking for them since their departure from Sri Lanka; • If returned to Sri Lanka [appellant AZT22] fears she will be harmed or killed by the Sri Lankan authorities and associated groups due to: - her Tamil ethnicity - her profile as a woman, or Tamil woman - past events involving [appellant AZT22] and her first husband, and their profiles - her religion, as a Christian - the 2014 'data breach' - her illegal departure - her profile as a failed asylum seeker. 121 The Authority records that, on 28 August 2020, appellant AZT22 provided the authority with a statutory declaration (AZT22 Authority reasons [22]). The statement included new information that was personal information about appellant AZT22 that, due to the nature of that information, she requested not be shared with her husband (appellant BIR22) and son (appellant BIS22). The new information concerned a traumatic event involving sexual assault of appellant AZT22 in 2012. The appellant said that the event took place while her husband was away in hiding. The new information related to aspects of the protection claim of appellant AZT22. The statutory declaration included an explanation for the reasons that the information had not been previously provided to the Minister or a delegate of the Minister. 122 The review material included written claims appellant BIR22 made in his TPV statement in 2015, a statutory declaration of appellant AZT22 made in 2015 and transcripts of TPV interviews with delegates in 2015. Within these statements, appellant BIR22 and appellant AZT22 gave an account that appellant BIR22 was beaten in 2012 and went into hiding for three days. Therefore, that appellant BIR22 was 'in hiding' in 2012 formed the premise or context of the events the subject of the new information of appellant AZT22. 123 The Authority set out the substance of the new information and submissions appellant AZT22 made on that information. The Authority then said, in respect of part of that information, 'for reasons outlined later in this decision, I am not satisfied that s.473DD is met' (AZT22 Authority reasons [22]-[24]). The Authority then went on to consider and give reasons as to why it was or was not satisfied that s 473DD was met with respect to various integers of the remaining part of that information (AZT22 Authority reasons [24]-[39]). 124 It is important to appreciate that these paragraphs of the Authority's reasons are contained in a preliminary section of the reasons in which the Authority identified the 'Information before the IAA'. That is, the review material and the new information in respect of which the Authority was satisfied that the criteria in s 473DD had been met. In this section of the reasons, the Authority considered and provided reasons as to why it was or was not satisfied that various new information met those criteria (AZT22 Authority reasons [5]-[39]). 125 After identifying the information before the Authority, the member then identified the protection claims of appellant AZT22 ([40]), the applicable law ([41]-[42]) and then considered the information before the Authority to decide if appellant AZT22 had a well-founded fear of persecution (AZT22 Authority reasons [43]-[143]). 126 In the course of addressing the information before the Authority, the member considered the claims of appellant AZT22 (to the extent these were based on statements of appellant BIR22 and appellant AZT22) to the effect that appellant BIR22 was targeted by armed groups, beaten, and forced to go into hiding. As to these claims, the Authority said (footnotes omitted): 65. I found [appellant BIR22's] and his wife's evidence about events in Sri Lanka between 2010 and 2012 highly problematic. In particular, their oral evidence appeared to significantly differ from their written evidence, and each other. 66. In his TPV statement, [appellant BIR22] claimed that in early 2010 he was attacked by armed soldiers after closing his shop and having commenced his journey home. He was tied up, blindfolded, and had his jewellery stolen. He was eventually left in a bush area. He also claimed that in December 2010 he was abducted by men in a white van. Again, his hands were tied and he was blindfolded. One of the men wanted to shoot him, but another was of the view he should be thrown from the van. The men then untied him and demanded money. In response, [appellant BIR22] said he could not keep paying but the men released him anyway telling him that were letting him live so they could get money from him in the future. When asked about the 2010 incidents in the TPV interview [appellant BIR22's] initial response was that it was very dangerous and that he didn't mention the details in his entry interview because he was mentally affected. I note this differed from his explanation in his TPV statement that information wasn't provided at that time because he was told to keep his answers brief. He then indicated to the delegate that there was only one incident in 2010, which was a combination of the two incidents outlined in his written claims. He stated that he was not attacked but kidnapped by soldiers while walking home from his shop. His personal items were taken and he was allowed to live so they [could] get "more things" from him in the future. He was blindfolded and left in a forest. The delegate asked [appellant BIR22] why he was allowed to live if he told them that he could no longer pay. In response, he said that the soldiers believed he had information about other people who were rich. On 2 December 2012, the [appellants'] former representative provided a post-interview written submission (post-TPV interview submission), which reiterated [appellant BIR22's] written evidence that he had been involved in two incidents in 2010. 67. Overall, I considered [appellant BIR22's] evidence about events in 2010 inconsistent and his oral evidence vague. Although he was asked by the delegate what specifically happened to him his responses were quite evasive and appeared to be about the difficulties faced by Tamils in general. While I accept [appellant BIR22] may have been the victim of jewellery theft by opportunistic criminal elements operating in the east of Sri Lanka at the time, I am not satisfied he was threatened, kidnapped or attacked by soldiers in 2010. I also considered [appellant AZT22's] evidence in her TPV interview that the purported kidnapping occurred in December 2012 not supportive of [appellant BIR22's] evidence. 68. [Appellant BIR22] claimed in his TPV statement that in January 2012 he and his family moved from Kalmunai to Batticaloa and opened a restaurant. He said it wasn't long until he was targeted by armed groups. He was beaten and was forced to go into hiding for three days. When he returned, armed men came to the restaurant early in the morning and threatened to shoot his wife and child. One of the men hit [appellant BIR22] in the face causing him to pass out. He decided to leave Sri Lanka due to fear for the safety of his wife and child. 69. Like her husband, [appellant AZT22] also indicated in her written statement that [appellant BIR22] went into hiding after being beaten. When he returned from hiding men came to the restaurant and threatened to kill her and the child. 70. In the TPV interview, the delegate asked [appellant BIR22] about the problems he purportedly faced in Batticaloa. He explained that he lived in fear because there were different groups that would come and ask for meals and cigarettes but not pay. He said that due to the pressure he went into hiding for around a week. While he was away armed persons came to the door of the restaurant and knocked on it. His wife called him immediately and he returned. He stated that soon after opening the restaurant the following morning, he was approached by the army and beaten. He had been running the restaurant for around five months and decided that he no longer wanted to live in Sri Lanka. He ceased operating the business and made arrangements to leave the country, which included selling his house. All arrangements were made within about a two-month period. The [appellants] departed Sri Lanka in September 2012. 71. The delegate asked [appellant BIR22] whether he could provide any evidence that he owned a restaurant in Batticaloa. In response, he indicated that unlike Australia there is no such document or evidence that can be provided as proof of business ownership. The delegate then asked whether there was a record of the business being registered or a change of ownership, to which he replied that he didn't have the opportunity to register the business because of everything that happened during the five-month period. He also didn't sell the business because he didn't want to draw attention to the fact that he was planning to leave Sri Lanka, and not even the restaurant staff were aware of his plans. 72. In her TPV interview, [appellant AZT22] advised the delegate that the incident where the armed men attempted to break into the restaurant occurred in January 2012. She believed the persons responsible were either the army or police. When asked why they would be targeting the family, she said it was because of her husband's problems. When asked what those problems were, she said that her husband had a lot of problems prior to their marriage (in 2009). [Appellant AZT22] also claimed that while her husband was in hiding for three days she and her son were threatened by the CID (Criminal Investigation Department). She was told that she would be killed unless her husband came out of hiding. She advised the delegate that they sold their business and their house prior to leaving Sri Lanka and that the process took around six months. I note in her entry interview [appellant AZT22] indicated some unknown paramilitary groups came to the restaurant and asked for money. 73. In the post-TPV interview submission, [appellant BIR22's] former representative reiterated [appellant BIR22's] and [appellant AZT22's] written evidence that [appellant BIR22] was attacked prior to going into hiding. 74. In his TPV statement, [appellant BIR22] claimed that since his departure from Sri Lanka the SLA had been speaking to his 'cousin's brother' wanting to know [appellant BIR22's] whereabouts. The SLA advised the cousin's brother that they are waiting for [appellant BIR22] to return to Sri Lanka so that they can deal with him. [Appellant BIR22] believes that the SLA started looking for him due to the 2014 data breach. In her TPV interview, [appellant AZT22] advised the delegate that she feared returning to Sri Lanka because as recently as three days earlier someone had come looking for them there. 75. Having considered the evidence in its entirety, I am not satisfied that [appellant BIR22] or his family came to the adverse attention of the Sri Lankan security services, or any other person or group, in 2012 as claimed. In particular, I consider [appellant AZT22's] and her husband's apparent differing evidence as to when the events of 2012 occurred significant which leads me to conclude they were not recalling a genuine personal experience. I find it difficult to reconcile [appellant BIR22's] oral evidence about the order of events and the period he was in hiding with his written claims. Also, [appellant BIR22] made no mention in the TPV interview of his wife being approached and that she and the child were threatened with death, as per his written claims, despite being asked by the delegate to provide details as to what occurred. Further, [appellant AZT22's] oral evidence that she was threatened while [appellant BIR22] was in hiding bore little resemblance to her written claims or [appellant BIR22's] written evidence that this occurred after he returned from hiding. I also find [appellant AZT22's] and her husband's conflicting evidence about whether they sold the business and the timeframe in which they made the arrangements to leave Sri Lanka not insignificant. Moreover, in contrast to other aspects of their evidence, I considered both [appellant AZT22's] and her husband's oral evidence in respect of these purported events to be at times incoherent and lacking in detail which further leads me to doubt they were recalling a personal experience. I am not satisfied [appellant BIR22] was in hiding in 2012. 76. A number of these concerns were put to [appellant AZT22] and her husband towards the end of the TPV interview. They were given a break to discuss these issues in private with their former representative. Following this discussion, [appellant BIR22] advised the delegate that he had told his wife that he had given the restaurant to someone prior to leaving Sri Lanka. He indicated he told her this because otherwise she would ask for the money and that would cause problems between them. However, I find this difficult to reconcile with [appellant AZT22's] evidence that the restaurant was in fact sold (and not given away). None of the other concerns about their problematic evidence was addressed in the interview and it was agreed that written submissions would follow. However, the post-TPV interview submission was silent on these particular concerns. 77. In coming to these conclusions, I have given consideration to [appellant AZT22's] evidence to the IAA about the events of 2012 (discussed further below), which I do not find particularly corroborative. I have also considered [appellant BIR22's] claim in the TPV interview that he was 'mentally affected' when he arrived in Australia and that his mind is not stable. However, there is no credible evidence before me to indicate [appellant BIR22] has been diagnosed with a psychological condition or that his ability to engage throughout the TPV process was adversely impacted by his mental state. I am not satisfied that the problems with [appellant BIR22's] and his wife's evidence about events in Sri Lanka are due to [appellant BIR22's] mental state, either now or when he arrived in Australia. 127 At para [78], the Authority set out the substance of the new information: 78. [Appellant AZT22's] new evidence to the IAA is that 'in or around 2012', while her husband was in hiding, she was raped in Batticaloa. She states that the incident occurred at a 'shop' they owned. They lived on the same premises as the shop. I infer the wife applicant is referring to the restaurant they owned in 2012 called the Star Hotel. She states in her August 2020 statement that: … The balance of para [78] set out in 11 bullet points the substance of the evidence of appellant AZT22 about the traumatic event and sexual assault. It included a statement that the events took place '[w]hile her husband was in hiding'. 128 The Authority then provided reasons for the member not being satisfied that the new information was 'credible' personal information within the meaning of s 473DD(b)(ii) and said: 82. The applicant's representative contends that the outcome of the above is that the wife applicant has not previously been given a genuine opportunity to engage with the protection visa process and to put forward her claims for protection. She submits that for this reason there are exceptional circumstances for considering the new claims and associated country information. The representative further submits that exceptional circumstances exist to consider the new information because the TPV application was lodged by a Registered Migration Agent appointed through the Primary Application Information Service (PAIS), which means the family were assessed by the Department as 'extremely vulnerable'. She also argues that because the delegate did not explore the question of whether the wife applicant faced harm on the basis of her gender, the IAA should find that this is an exceptional circumstance. 83. I am keenly aware of the difficulties faced by persons with claims relating to sexual assault. I also acknowledge the country information that indicates such events as claimed by the wife applicant were widespread in Sri Lanka at the relevant time. I give some weight to the fact that the wife applicant expressed a fear of sexual assault in Sri Lanka before the delegate and that this, without more, may provide some support for the new information to the IAA. I accept it is not implausible that victims of sexual assault will often decline to disclose their experiences due to factors including general discomfort, shame, stigma, psychological or cultural reasons. I also accept it is possible that a lack of understanding about the protection process and/or the use of a male interpreter could act as a barrier to disclosing claims relating to past sexual assault. I further accept that someone who was affected by the data breach may lack confidence to divulge sensitive information for fear that information may not remain confidential. It is also possible that a legal representative assisting an applicant may not have asked the right questions or sought information in a culturally appropriate manner. 84. I have concerns about some of the reasons advanced by the applicants' representative as to why the information was not advanced earlier. For example, I am not satisfied the wife applicant was disadvantaged throughout the TPV process due to her limited English language skills or her lack of understanding of the TPV process. Notwithstanding the various reasons to the IAA about why the information was not provided earlier, I note she was assisted throughout the TPV process by a legal representative and confirmed in the TPV interview that she understood Australia's protection obligations. The delegate emphasised the importance of providing the Department full and accurate protection claims during the TPV process and prior to a decision being made. I am also satisfied her written and oral claims were provided with the assistance of an accredited interpreter. As noted above, the delegate, a female, asked the wife applicant about her personal experiences in Sri Lanka. The interview was conducted without her husband present and with her former representative, also female, present. 85. I also find it difficult to reconcile some of the reasons put forward. On one hand, it is suggested the wife applicant was prevented from putting forward the claims earlier because of the actions (or inactions) of the former representative, because a male interpreter was used, because the delegate did not explore the issues, or due to stigma / shame / psychological / cultural factors. However, on the other hand, it is submitted that she consciously didn't advance the claims earlier because of a lack of confidence due to the data breach or because she thought her husband's claims would be accepted. It is difficult to see how the applicants' 'PAIS' status contributed to the non-disclosure of the new information earlier. I have also noted the wife applicant's claim that she has not explained to her treating doctor the cause of her symptoms though has had surgery in Australia and takes medication, both in connection with the claimed events/assault. However, there is no evidence of the wife applicant having undergone any medical treatment, beyond her assertions. 86. In respect of the new claims themselves, as noted above, I considered the problems with the wife applicant's and her husband's evidence about the events of 2012 so significant that I was not satisfied her husband was ever in hiding, which significantly undermines the credibility of the new information. Further, aside from the problematic evidence in respect of the events of 2012 already discussed, I have concerns with aspects of the new information. In particular, the wife applicant's claim that she opened the door assuming it was her husband returning home and that it didn't occur to her that anyone else would be knocking on the back door of the house. I simply don't find this credible in circumstances where both she and her husband claimed that, at the relevant time, the situation was so dangerous that the applicant was forced to leave their restaurant/home and go into hiding. This leads me to further doubt the credibility of the new information. 87. The new claims are not inconsistent with the country information before me. However, when I consider the difficulties with the evidence about the events of 2012 (when the assault is said to have occurred), that the claims are being advanced for the first time over four years since the delegate's decision and following two previous IAA reviews, the differing reasons advanced as to why it was not provided earlier, the fact the wife applicant was represented by a female representative throughout the TPV process, that she advanced claims before the Minister in respect of her fear of sexual violence, that the female delegate did touch on gender in the TPV interview, that the wife applicant specifically advised in the TPV interview that she had never faced harm personally, and that I am satisfied she was well aware of the importance of raising all claims and evidence prior to the delegate's decision, I am not satisfied the new information about the sexual assault is credible. I am not satisfied the new information was not put forward earlier due to the wife applicant believing that she didn't need to because she thought her husband's experiences/claims would be sufficient, due to her English language skills, due to her lack of understanding of the TPV process, due to shame, stigma, psychological or cultural factors, due to the actions (or inactions) of the delegate or her former representative, due to being assisted by a male interpreter, due to the data breach, due to her 'PAIS' status, or for any other reason. I am not satisfied that exceptional circumstances exist to justify considering the new information. 88. In the September 2020 submission, the applicants' representative states that the wife applicant requests a 'hearing' to be heard on the claims advanced in her August 2020 statement. The representative, as a registered migration agent, would be aware that the IAA provides a limited form of review which, as a general rule, does not involve accepting, getting, or requesting new information. The representative would also be aware that the IAA Practice Direction allows applicants to provide a written submission about why they disagree with the decision or about a claim or matter presented that was overlooked and to provide further information which can be considered in limited circumstances. In this case, numerous written submissions and a detailed statement have been provided and the representative and wife applicant have taken the opportunity to both address matters that were before the delegate and to raise new claims. While the IAA may get any information not before the Minister and which it considers relevant, including at an interview, it does not have a duty to do so. For reasons outlined above, I am satisfied that the wife applicant has had ample opportunity to present her case. Further, given my significant concerns noted above about the credibility of the new information, I am not satisfied that an interview is warranted. 89. The wife applicant states in her August 2020 statement that she feels like her memory has been affected due to the assault (which I have not found credible or considered). However, there is no diagnosis, medical opinion, or other credible information before me to indicate the wife applicant has problems with her memory. I am not satisfied the wife applicant's ability to engage throughout the TPV or IAA process, including in respect of providing the new information via the representative, has been adversely impacted due to memory issues. I am not satisfied the wife applicant suffers with memory problems.

Primary judge's reasons 129 The primary judge addressed the ground of review of appellant AZT22 as it was ultimately formulated. Her Honour concluded that the Authority had not made an error in making findings on the appellants' claims, which included a claim that appellant BIR22 was in hiding for three days in 2012, without first deciding whether the new information about the traumatic events concerning appellant AZT22 met the criteria of s 473DD. Her Honour said (AZT22 judgment at [45]-[54]): 45 The applicant's ground, particularly as it was advanced in oral submissions, appears to be based on a premise that the Authority must determine the scope of materials that it is required to consider before commencing its review of the substantial claims. I accept that, as a general rule, the Authority should avoid rejecting a claim made by a referred applicant without first considering whether new information relevant to that particular claim, and which might affect consideration of that claim, meets the criteria in s 473DD of the Migration Act. However, I do not accept that the Authority cannot ever make findings on some of a referred applicant's claims for protection, or other issues in the substantive review, before making a finding about whether new information meets the requirements of s 473DD, where that new information could not impact the Authority's assessment of the particular claims or issues the subject of the substantive finding. There is nothing in the text of s 473DD that would require the Authority to conclusively determine all new information to which it can have regard pursuant to ss 473DC and 473DD before it can make any findings on any of the substantive issues. Nor is there is anything in the cases that the parties have referred to in their submissions, such as BTW17, CSR16, AEX19 and DYS16 v Minister for Immigration and Border Protection (2018) 260 FCR 260; [2018] FCAFC 33, which requires the scope of the review materials to be finally determined before there is any consideration of any of a referred applicant's substantive claims. 46 Sometimes, the Authority's findings in relation to substantive issues will have an impact on its assessment of the relevance or significance of new information to the review. One example is where a referred applicant provides new information to the Authority which is relevant only to the question of whether the referred applicant can reasonably relocate to another area within the receiving country where that referred applicant would not face a real risk of significant harm. If the Authority finds that the referred applicant would not face a real chance of serious harm or a real risk of significant harm in their home area, then it would not be necessary for the Authority to consider relocation and the new information would not be of any significance to the review. In my view, nothing in s 473DD, or Division 3 of Part 7AA of the Migration Act more generally, would prevent the Authority from making a finding about the referred applicant's risk of harm in their home area before considering whether new information about the reasonableness of relocation met the requirements of s 473DD. To find otherwise may result in the Authority finding that the criteria in s 473DD are met in relation to new information, and then in the substantive review deciding that it does not need to consider the new information because it is not relevant to the issues before it. This would not be consistent with the High Court's comments in AUS17 at [6] that: …Having performed that duty to assess the new information against the specified criteria [in s 473DD of the Migration Act], the Authority must take that new information into account in making its decision on the review if those criteria are met and must not take that new information into account in making its decision on the review if those criteria are not met. 47 Another example might arise if the Authority was prepared to accept a claim or fact based on the existing review material and new information was provided by a referred applicant to support or corroborate the particular claim or fact. In such a case, the Authority's acceptance of the underlying claim or fact might be relevant to its consideration of whether exceptional circumstances exist to justify considering the new information. 48 I acknowledge that there may be some cases where jurisdictional error may result from the Authority making a finding on one of a referred applicant's claims for protection, or other issue on the substantive review, and then relying on that finding in assessing that new information is not credible for the purposes of s 473DD(b)(ii) of the Migration Act. This might occur, for example, where the new information is relied on to corroborate a particular claim advanced by a referred applicant, the Authority rejects the claim before deciding whether the new information meets the criteria in s 473DD, and then relies on its rejection of the claim to find that the new information is not credible. However, the present matter is not such a case. 49 In this case, the New Claim was not new information that had the potential to impact on the Authority's assessment of the claims about events in 2012. This can be seen from the opening sentence in [77] of the Authority's reasons, where the Authority expressly acknowledged that nothing in the New Claim was particularly corroborative of the claims about events in 2012. Neither party submitted that the Authority erred in making this finding, and it was not suggested that the Authority had in any way relied on material that did not meet the requirements of s 473DD in assessing the claims about events in 2012. Mr Glenister submitted that the Authority's statement at [77] is an impressionistic assessment and needs to be interpreted taking into account the limitation in s 473DD and Mr Kaplan described it a neutral statement. I am satisfied that the opening words of [77] are not a reflection that the Authority took into account the New Claim in assessing the claims about events in 2012. Rather it is simply an observation that the New Claim does not corroborate the evidence in relation to the claims about the events in 2012. The implication is that if the Authority viewed the New Claim as being corroborative of the claims about events in 2012, this might have been taken into account in assessing whether the New Claim met the requirements of s 473DD. 50 In circumstances where the Authority had effectively determined that the New Claim was not relevant to its consideration of the claims about events in 2012, it follows that, at the time that the Authority considered and made findings on the claims about events in 2012, it had before it all material relevant to its assessment of those claims. It did not need to have determined whether it could take into account the New Claim before making findings on the claimed events of 2012 as the New Claim could not have impacted that consideration in any way. 51 The findings on the claims relating to events in 2012 then formed part of the Authority's assessment of the review materials before it, which it was entitled to take into account for the purposes of assessing whether the New Claim met the criteria in s 473DD: see BTW17 at [72]. The New Claim was said to have taken place at a time when the applicant's husband was in hiding. In treating its finding that the applicant's husband was never in hiding as relevant to the assessment of whether the New Claim was credible, the Authority has not strayed beyond any assessment of whether the New Claim was capable of being believed. It is clear from the language used by the Authority at [79]-[87] of its reasons that its assessment in those paragraphs related to whether the requirements of s 473DD were satisfied, rather than any substantive consideration of the New Claim. 52 Finally, I note that nothing that the Authority has done in the present case is inconsistent with the case authorities that the parties have referred me to. In particular, the Authority has not conducted the review in a manner which would be inconsistent with the following comments of Mortimer and Jackson JJ at [78] of BTW17: (c) There is no inconsistency between the approach in CSR16 and the proposition that the Authority may examine other review material as part of its exercise of power under any of ss 473DC; 473DD or 473DE. However, the Authority must not in substance embark on the conduct of its review - making a fresh decision - by using material to determine a visa applicant's credibility that it then decides to exclude from the review. The scheme does not intend that this can occur. That would be a substantively unfair process, and there would need to be clear words to give this part of the scheme such an operation. (d) The purpose of s 473DD is not undermined at all by construing s 473DD(b)(ii) in the way we have explained. This argument ignores any holistic consideration of s 473DD, which erects a considerable threshold to the receipt of new information. Further, the purpose of the scheme of Pt 7AA would be undermined by an approach that enabled the Authority to make adverse credibility findings against a visa applicant which were material to the outcome of the review on the basis of "new information" which then did not form part of the review material before it. That would be inconsistent with s 473DB. 53 The Authority has not here relied on the New Claim to make adverse credibility findings about the applicant and then excluded the New Claim from consideration. The Authority found that the New Claim was not credible. It found that the New Claim did not corroborate the claims about events in 2012. But the Authority did not rely on the New Claim to make any adverse credibility findings against the applicant, whether in relation to the claimed events of 2012 or otherwise. 54 I find that there was no error in the Authority making findings on the claimed events of 2012 without first deciding whether the New Claim met the requirements of s 473DD, and then relying on its finding that the applicant's husband was never in hiding in assessing the credibility of the New Claim. 130 Although not strictly necessary in light of the primary judge's conclusion that the Authority had made no error of the asserted kind, she dealt with the issue of materiality on the assumption that she was wrong in reaching that conclusion. In reliance on Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 the primary judge considered if the asserted error was material in the sense that it could have realistically deprived appellant AZT22 of the opportunity of a successful outcome: AZT22 judgment at [55]. 131 The primary judge then considered the issue of materiality to the ultimate substantive decision on review and whether, if the Authority had been satisfied that the new information met the criteria of s 473DD, the Authority might have found that appellant AZT22 met the criteria for the grant of a protection visa. The primary judge reasoned that it would not have altered the Authority's finding that appellant BIR22 was not in hiding in 2012 and, therefore, the Authority would not have accepted the statement of appellant AZT22 about the traumatic event in 2012: AZT22 judgment at [56]-[60].

Grounds of appeal 132 Ground 1 of the notice of appeal of appellant AZT22 pleads that the primary judge erred at para [45] of the AZT22 judgment by finding that the Authority was not required to determine the scope of the materials that it was required to consider before commencing its review of the protection claims. Ground 2 pleads that the primary judge erred by finding that if the Authority had made the error alleged, it would not have been material to the outcome of the review. 133 The principal issue underlying ground 1 is one of the proper construction of Part 7AA of the Act. Specifically, whether the Authority, in undertaking the substantive review mandated in that Part, is required to make a decision on what, if any, new information it is required to consider in the review in respect of all claims of the referred applicant before embarking on the procedural duty of considering the review material and any new information for the purpose of performing the substantive review. An aspect of that issue is whether, in this case, the Authority embarked on the substantive review before determining the scope of the material for that substantive review. Put another way, to succeed on ground 1 appellant AZT22 must also demonstrate that the Authority performed the substantive review before determining the scope of the materials it was required to consider. 134 Ground 2 raises the question of whether the asserted error of the Authority must be material to the outcome of the decision concerning the criteria in s 473DD or material, assuming the new information was required to be considered in the substantive review, to the ultimate outcome of the Part 7AA review. Further, on either view, ground 2 raises the question of whether the asserted error of the Authority was material to the applicable outcome.

Purpose, object and context 135 The legislative scheme of Part 7AA has been explained and addressed in many judgments of the High Court: e.g., Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 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]; (2020) 380 ALR 216 at [16]-[24]; ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; (2020) 269 CLR 439 at [5]-[25]; AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; (2020) 269 CLR 494 at [2]-[12]; DVO16 v Minister for Immigration and Border Protection [2021] HCA 12; (2021) 273 CLR 177 at [9]-[23]. It is unnecessary to repeat what was said in those decisions, however, set out below is a summary of the settled interpretation that is relevant to the question of statutory interpretation raised in ground 1 of the grounds of appeal of appellant AZT22 136 In Plaintiff M174/2016, (at [22]) the plurality described the 'primary rule' applicable to the Authority's review under Part 7AA as follows: 22 Within Div 3, s 473DB sets out the primary requirement that, subject to the Part, the Authority is to review a fast track reviewable decision referred to it under s 473CA by considering the review material provided to the Authority under s 473CB without accepting or requesting new information and without interviewing the referred applicant. To that primary rule, subdiv C of Div 3 admits of exceptions. The principal provisions of subdiv C providing for those exceptions are contained in ss 473DC, 473DD and 473DE. Close attention needs to be paid to each of those provisions and to their interrelationship. 137 In DVO16 (at [16]) the plurality described the 'overriding duty' of the Authority to review the fast track reviewable decision referred to it by the Minister, 'procedural duty' to conduct that review by 'considering' the review material provided to it by the Secretary and qualification of that procedural duty under Part 7AA as follows (footnotes omitted): [16] The overriding duty of the Authority to "review" the fast track reviewable decision referred to it by the Minister is accompanied by a procedural duty to conduct that review by "considering" the review material provided to it by the Secretary without accepting or requesting "new information", being "a communication of knowledge about some particular fact, subject or event" that was not before the Minister when the delegate made the referred decision, and without interviewing the referred applicant. That procedural duty as to the manner of conduct of the review is qualified only by the Authority having specific procedural powers to "get" new information and in specified circumstances, and on specified conditions, to "consider" that new information. Performance of the procedural duty subject to the potential for exercise of these powers exhausts the requirements of "the natural justice hearing rule" in relation to the review. 'The Authority performs its [procedural] duty to consider the review material provided to it by the Secretary by examining the review material physically provided to it so as to form and act on its own assessment of the relevance of that material to the review of the referred decision': DVO16 at [17]. 138 An exception to the 'primary rule' and a 'procedural power' to get new information in specified circumstances on specified conditions and to consider that new information is contained in s 473DD of the Act: 473DD 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. In AUS17 (at [6]) the plurality explained that, although expressed to prohibit the Authority from considering new information if the criteria it specifies are not met, s 473DD must be construed to impose a duty on the Authority to assess new information that it has got against the specified criteria and must take (or not take) that new information into account if the criteria are met (or not met). 139 The Authority 'gets' new information within the meaning of s 473DC when and if the Authority physically obtains new information. The Authority goes on to 'consider' new information within the meaning of s 473DD when and if the Authority takes new information it has got into account in making its decision on the review, assigning the new information such probative weight as it thinks the new information deserves in its assessment of the probability of the existence of some fact about which it actually makes a finding: AUS17 at [4]. 140 'Logic and policy … 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': AUS17 at [11]. Further, '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)': AUS17 at [12]. Therefore, a failure to assess the new information against the criteria specified in s 473DD(b) according to law such that there has been, in effect, non-performance of that assessment, may be characterised as a failure to take into account a mandatory relevant consideration in the purported performance of the procedural duty in s 473DD. 141 In Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020] FCAFC 159 Mortimer J (as her Honour then was) and Jackson J made the following relevant observations about the legislative scheme in Part 7AA that inform the proper construction of s 473DD: 67 Having explained [in Plaintiff M174/2016] at [29] that the "exceptional circumstances" "precondition set out in s 473DD(a) must always be met", the plurality then said of s 473DD(b) (at [34]): Accordingly, all that the Authority needs to be satisfied of in order to meet the precondition to its consideration of new information given, or proposed to be given, by the referred applicant set out in s 473DD(b)(ii) is that: (1) the information is credible information about an identified individual, or an individual who is reasonably identifiable; (2) the information was not previously known by either the Minister or the referred applicant; and (3) had the information been known by either the Minister or the referred applicant, the information may have affected the consideration of the referred applicant's claims. (Emphasis added.) 68 Two matters should be noted about this passage, and the proper approach described by the plurality. First, what is contained in s 473DD is described as a "precondition". That is, although it is part of the review function of the Authority, the exercise of power under s 473DD comes before the Authority can "consider new information that is given to it" by a referred applicant. It is thus part of the Authority's preliminary decision-making about what is the complete scope of the material it will be considering on its review for the purpose of its statutory task, which is, as the plurality in Plaintiff M174 outlined at [17], to consider the application for a protection visa afresh and to determine for itself whether or not it is satisfied that the criteria for the grant of the visa have been met. 69 As the plurality observed at [32], the precondition in s 473DD(b)(i) needs "[n]o explication". It is a matter of objective fact, and straightforward. It would be curious if the precondition in s 473DD(b)(ii) were not also treated as involving a relatively straightforward assessment, being, as we have explained, a preliminary step the Authority must take before settling on the scope of the material which is to be before it on its review, so that it can consider afresh the protection visa application, and make its own decision. 70 Thus, the parameters for the Authority's review task are set by the "primary rule" in s 473DB, read with the additional powers conferred on it by ss 473DC, 473DD and 473DE. The purpose of each of those additional powers is the same: it is to regulate the circumstances in which the Authority can depart from the "primary rule" in s 473DB. In each case, in deciding whether or not to exercise those powers, the Authority is doing so for the purposes of deciding what should be the scope of the material available to it for its review task. 71 The precondition in s 473DD(b)(ii) is but one aspect of these powers, and the approach taken to its construction should reflect its purpose as we have described it. In substance, it is no different to the Authority deciding whether to invite a person to an interview under s 473DC(3)(b): in both cases, the Authority is deciding what material should be before it on its review. 72 Just as when a Tribunal decides whether to receive evidence or information, the exercise of these powers can and should occur in the context of the review material already before the Authority, and on which according to the primary rule it should conduct its review. Whether to invite a person to an interview, whether to "get" new information of its own motion, or whether to accept "new information" proffered to it by a visa applicant - in all these circumstances the Authority is entitled to reflect on and assess the review material already before it - but for the purpose of deciding whether to depart from the primary rule and, importantly, bearing in mind its function of considering the protection visa application afresh and for itself. Assessing the proposed new material (or interview) in this context will assist the Authority in assessing relevance, in assessing how critical the additional information is to its review, and in assessing whether the preconditions laid out by Parliament can be established. To take an obvious example from the suite of provisions - in order to decide if new information could have been put before the delegate, the Authority is likely to have to consider what was put before the delegate. 73 However, there comes a point at which such an assessment will go too far, and in reality will equate to, or become indistinguishable from, the Authority's reasoning on its own - fresh - consideration of the protection visa application. That would not be the correct approach, because that is not the purpose for which the power is conferred. 74 As procedural powers designed to permit the Authority in specified and limited circumstances to depart from the primary rule in s 473DB and to have available to itself more material than the delegate did, the Authority is confined to a consideration which is compatible and consistent with this purpose. 75 That is why, in our opinion, Parliament has used the word "credible" in s 473DD(b)(ii) to describe the character of the information a visa applicant seeks to put forward. As Bromberg J said, "credible" means capable of being believed: it is the decision whether the information has that character, as well as the character of being "personal" to the visa applicant, which is to be made at this procedural stage, for the purpose of deciding what the scope of the review material should be, and whether there should be a departure from the primary rule. 76 Particularly in a scheme premised on a review "on the papers", there is a real difficulty with the Authority undertaking some kind of substantively evaluative process at this point, and weighing the new information, the visa applicant's explanation of why it should be considered, and the existing review material together, and then reaching some relatively definitive findings about the credibility of the visa applicant (which would occur in deciding if the new information were "true"). That difficulty is that the Authority is, in substance, taking into account material that is not before it on the review in determining the credibility of the visa applicant. That is neither what the legislative scheme of Pt 7AA contemplates nor what it permits. Fresh decisions on the review must be based on the review material before the Authority: they cannot be based on extraneous material, which is what "new information" is, until it is admitted. That, in our opinion, is an important reason why the approach identified by Bromberg J in CSR16 is correct.

Parties' submissions 142 The appellants contend that on the proper construction of the Act the statutory review under s 473CC involves, in substance, two stages. First, identification of all the material that the Authority is to consider in the review. That consists of the review materials and any new information that meets the criteria in s 473DD. According to the appellants, in this stage, while the Authority may have reference to the review material when considering if it is satisfied of the criteria in s 473DD, the Authority must stop short of making any findings on the review material when considering if it is satisfied of the credibility of personal information or if exceptional circumstances exist. Second, after completion of the first stage, the Authority is then to consider the review material and any new information that satisfies the criteria specified in s 473DD when conducting the statutory review under s 473CC. 143 The appellants contend that the error that the Authority made in this case was to conflate the two stages. The Authority made findings on the review material and then used those findings as a basis for not being satisfied of the credibility of the personal information relating to appellant AKT22. The appellants contend that was an error because the Authority embarked on consideration of the material for the purposes of the substantive review before deciding what material it was obliged to consider in that review. Another way of characterising the asserted error is that the Authority had regard to an irrelevant consideration when considering if the personal information was credible. That is, a concluded finding based on the review material was not relevant to the question of whether the personal information was credible because the Authority was not permitted to make and use findings on the review material before deciding if the member were satisfied of the criteria in s 473DD. As a consequence, the Authority failed to exercise the procedural power in s 473DD according to law. 144 In support of the appellants' submissions they relied on the reasons of Yates J in AEX19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1069 (at [61]) where his Honour said: 61 … Considering the application of s 473DD to new information is part of the IAA's task in determining the scope of the material properly available to it in order to undertake its review task. Reaching a final conclusion on the truth of the appellant's claims is a separate and discrete task, which can only be reached on the basis of all the information properly before the IAA for review. 145 In reaching that conclusion, Yates J appears to have accepted the appellant's submission in that case that the Authority had applied the wrong criterion for s 473DD(b)(ii) and had assessed the information by reference to whether the new information was 'true' rather than 'capable of being believed' (at [25]). That submission, in turn, was founded on BTW17. In BTW17, Mortimer and Jackson JJ considered and accepted that CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 represents the law on the question of the correct approach to s 473DD(b)(ii). In particular, at para [75] of their Honours' reasons quoted above, they accepted that the decision about the credibility of personal information 'is to be made at [the] procedural stage, for the purpose of deciding what the scope of the review material should be, and whether there should be a departure from the primary rule.' 146 In CSR16 (at [40]-[43]), Bromberg J considered the meaning of the word 'credible' in the phrase 'credible personal information'. In the course of expressing the view that 'all that the "credible" element of the s 473DD(b)(ii) criteria requires is the Authority's satisfaction that the "new information" is information which is open to be or capable of being accepted by the Authority as truthful (accurate, or genuine)' his Honour drew a distinction between the 'deliberative stage' of the Authority's review and 'an earlier or anterior stage' directed at whether new information should be received by the Authority for consideration at the deliberative stage. Bromberg J reasoned that at the earlier or anterior stage the Authority was only permitted to consider if the new information was 'credible' and, if so, whether the information met the other criteria specified in s 473DD, then the Authority was to consider if the new information was 'true' at the later deliberative stage. 147 In BTW17, the Minister argued that the approach of Bromberg J in CSR16 was wrong. The Minister submitted, amongst other things, that Bromberg J was wrong to divide the Part 7AA review into deliberative and anterior stages. The Minister submitted that there was a single review under Part 7AA. The Minister made a similar submission in these appeals to the effect that it was wrong to divide the Part 7AA review into stages by which: (1) the Authority is required to determine the scope of the material it is obliged to consider (review material and any new information that meets the s 473DD criteria); and (2) consider that material in the substantive review.

Performance of the Part 7AA review 148 In my view, it is correct that the scheme of Part 7AA contemplates a single review of a fast track reviewable decision by the Authority. However, the notion of a single review is not incompatible with a requirement that performance of that single review is subject to the condition that the Authority must perform the procedural duty and exercise procedural power according to law. Put another way, the Authority must perform the procedural duty to 'consider' the review material in order to make the ultimate decision in the exercise of the substantive review duty. That procedural duty is qualified by the procedural power of the Authority to get new information which it must also 'consider' if the criteria specified in s 473DD are met. 149 It follows that the duty to exercise the substantive review power and make a decision to affirm or remit the fast track reviewable decision is subject to the condition that the Authority has performed the procedural duty and exercised the procedural power according to law. It is preferable to describe the procedural duty and power as conditions to the exercise of the power of review rather than 'stages' of the review with sequential or temporal components so as to avoid conceptual confusion or misunderstanding of the nature of the Authority's substantive review duty.

Information that may be considered for the purposes of the procedural power 150 In circumstances in which a referred applicant raises new information, the exercise of the substantive power of review is conditional upon the exercise of the procedural power and an evaluation of the new information for the purpose of considering if the Authority is satisfied of the criteria specified in s 473DD(b)(ii). In my view, for the reasons which follow, the Authority is permitted, in the exercise of that procedural power, to consider the review material and form views based on that material for the purpose the exercise of the procedural power and evaluating if new information meets the criteria specified in s 473DD(b)(ii). 151 First, s 473DD(b)(ii) contains no express limit on what information or considerations the Authority may take into account when considering if the Authority is satisfied that the new information is credible personal information. The Authority is clearly permitted to consider the review material, or that part of the review material that is relevant, for the purpose of evaluating new information. The appellants accepted that the Authority was permitted to do so. Also, new information is to be evaluated in the context of the review material and that the Authority must consider the review material in the performance of the procedural duty as a condition of the substantive review. That is, s 473(b) 'requires an evaluation of the significance of the new information in the context of the referred applicant's claims more generally': Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; (2017) 257 FCR 111 at [105]. 152 Second, there is no reason for considering that the legislature intended to preclude the Authority from making some findings based on the review material and using those findings to inform the evaluation of the new information for the purposes of s 473DD(b)(ii). In DVO16 (at [19]-[20]), in the context of considering the circumstances in which it may be legally unreasonable for the Authority not to exercise its procedural powers, the plurality considered that 'where the referred applicant's testimony as given at a protection interview was incorrectly translated, testimony able to be given by the referred applicant at an interview with the Authority as correctly translated would amount to new information which might well meet [the] conditions for consideration by the Authority [specified in s 473DD] … Faced with translation errors in a recording of a protection interview revealed or suggested by the review material provided by the Secretary … the Authority would have the potential to breach the reasonableness condition implied into its powers to get and consider new information were it to fail to exercise those powers to interview the referred applicant and then to consider the referred applicant's testimony as correctly translated.' 153 It is implicit in the plurality's reasons in DVO16 that the Authority, in the exercise of its procedural powers, would have to reach conclusions or make findings about the accuracy of the translation in the review materials (incorrect translation) to consider if the new information (correct translation) would meet the criteria specified in s 473DD(b)(ii). In other words, findings would be made on the review materials about, at least, the quality or credibility of the review material that would then be used to inform the extent to which new information was credible personal information. 154 Third, it is artificial to separate the procedural duty to consider review material for the purpose of the substantive review from consideration of that same material in the exercise of the procedural power to evaluate whether new information meets the criteria specified in s 473DD(b)(ii). Administrative decision-making does not take place in a compartmentalised manner. There is an evaluative continuum. What may commence as a consideration of review material for the purpose of evaluating if new information meets the criteria specified in s 473DD(b)(ii) may end in a conclusion that informs both the evaluation of that new information and ultimately the substantive review decision. Along the continuum, as relevant and available information is considered, a view of facts will emerge with an ever increasing level of certainty until it eventually crystallises into a firm conclusion of the facts. That conclusion will then inform the decision in the substantive review. If, along the continuum, the Authority is satisfied of the criteria specified in s 473DD, then the relevant new information would become available to be considered in the formation of the Authority's view of the facts for the purpose of the substantive review. If not, then the Authority would be confined to consider only the review material and any other new information that meets the s 473DD criteria. 155 It follows that the Authority must be permitted to consider review material and form views about that material in the performance of its procedural duty. In the course of that consideration, the Authority may begin to reach a view of facts provided in so doing it does not 'go too far'. It is permitted to use those views to inform its consideration of new information and whether that information meets the criteria specified in s 473DD(b)(ii) and, in particular, whether that information is credible new information. However, that is not to say that the manner in which the Authority uses or takes into account views reached on the review material may not result in a failure to exercise the procedural power in s 473DD according to law for other reasons. 156 For example, a decision to the effect that the Authority is not satisfied of the criteria in s 473DD must be made within the bounds of reasonableness in the sense explained in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; DVO16 at [19]. Therefore, a decision that new information has not satisfied the criteria specified in s 473DD(b)(ii) based on views formed on review material may involve jurisdictional error if reliance on those findings results in a legally unreasonable conclusion that personal information is not credible. However, the appellants have not asserted that the Authority made any error of that nature. 157 Likewise, if the new information could affect or change the Authority's view of the facts drawn from the review material or on the credibility of the referred applicant's claims as a whole it may not be a proper exercise of the procedural power in s 473DD to reach views based on review materials and use those views to evaluate the credibility of the new information. Although said in the context of a failure to exercise the power in s 427(1) of Part 7 of the Act, in AYX17 v Minister for Immigration and Border Protection [2018] FCAFC 103; (2018) 262 FCR 317 (at [85]-[87]), Tracey and Mortimer JJ counselled caution before determining that it is open to a decision-maker to conclude that proffered corroborative evidence cannot 'affect' the decision-maker's view of the reliability or credibility of an applicant as it discounts the legitimate purpose of corroborative evidence and tends to suggest a level of prejudgment. Again, the appellants have not asserted that the Authority was in error for failing to consider the extent to which acceptance of the relevant new information may have influenced findings on the credibility of other claims or that otherwise reliance on views formed on the review materials involved an element of pre-judgment concerning the credibility of the personal information relating to appellant AZT22.

Consideration: appellant AZT22 ground 1 158 It follows from what I have said above that I do not agree with the manner in which the primary judge expressed the approach to the exercise of the substantive power of review in para [45] of the AZT22 judgment. The Authority is required to determine the scope of the materials (review materials and new information) as a condition of the exercise of the substantive power of review. Otherwise, if made in reference to 'views formed on review materials' rather than 'findings in relation to substantive issues', I largely agree with the observations of the primary judge in paras [45]-[48] of the AZT22 judgment. Accordingly, to that extent, my view is that ground 1 is made out. Therefore, the question here is whether the Authority made the error of exercising the substantive power of review without considering if the relevant new information met the criteria in s 473DD(b)(ii). 159 The Authority's reasons must be read in the context of the reasons as a whole and without an eye keenly attuned to error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272. Having regard to that principle, in my view, the Authority has not performed the substantive review duty without having exercised the procedural power and determining what, if any, new information the Authority was obliged to consider in the performance of the substantive review. 160 The Authority explained in paras [5]-[39] the information before it, for the purposes of performing the substantive review duty (the review material and any new information that it required to consider). In that section of the reasons, the Authority said, in effect, that the statement about the traumatic event was not before the Authority for the purposes of the substantive review duty because it was not satisfied that the criteria specified in s 473DD had been met with respect to that new information. The Authority could have provided the reasons for not being so satisfied at that point, but chose not to do so until later in the reasons. It is understandable why the Authority chose to deal with the relevant new information in that manner because a discussion of the credibility of that information fitted naturally within a discussion of the review material that dealt with the premise of that new information (that appellant BIR22 was in hiding). 161 In paras [78]-[89], the Authority provided the reasons for its conclusion that appellant AZT22's allegations involving sexual assault were not credible new information. While understandable, choosing to deal with that new information later and mixed in with the Authority's reasons on the substantive review created ambiguity about the Authority's reasons for not being so satisfied and the manner in which the Authority performed, or purported to perform, its statutory duties. 162 Before coming to the relevant new information, paras [65]-[77] contain the Authority's consideration of the review materials concerning the appellants' evidence about events in Sri Lanka between 2010 and 2012. In para [65], the Authority describes that evidence as 'highly problematic'. In paras [66]-[75], the Authority then summarises the appellants' evidence and identifies various problems arising from that evidence. 163 In para [67] the Authority indicates that it considered appellant BIR22's evidence about events in 2010 inconsistent and his oral evidence vague. The Authority characterises his responses to questions of the delegate as evasive. The Authority also considered that appellant AZT22's evidence in her TPV interview was not supportive of appellant BIR22's evidence. 164 In para [75], the Authority identifies inconsistencies between each appellant's evidence, inconsistencies between the oral and written statements of each appellant and that appellant BIR22 did not mention aspects of appellant AZT22's evidence in appellant BIR22's TPV interview. The Authority describes the appellants' evidence as incoherent and lacking in detail. These problems led the Authority to doubt that the appellants 'were recalling a personal experience'. That is, to doubt the credibility of the appellants' evidence. Para [75] also contains the conclusions that the Authority 'was not satisfied that [appellant BIR22] or his family came to adverse attention of the Sri Lankan security services, or any other person or group, in 2012 as claimed' and was 'not satisfied that [appellant BIR22] was in hiding in 2012.' 165 In para [76], the Authority explains that a number of the concerns described in para [75] were put to the appellants in the TPV interview. The appellants were given a break and an opportunity to discuss them with a representative. Appellant BIR22 then provided an explanation by which he sought to explain one of the inconsistencies between the evidence of the appellants. The Authority found the explanation 'difficult to reconcile' with appellant AZT22's evidence. The Authority notes that '[n]one of the other concerns about their problematic evidence was addressed in the interview'. A written submission was to follow, but the post-TPV interview submission did not address the concerns. 166 In para [77], the Authority indicates that it also considered if the identified problems with the appellants' evidence could be explained by appellant BIR22's mental state, but considered there was no credible evidence of any psychological condition or a mental state that affected his ability to engage in the TPV process. The Authority also said that consideration had been given to appellant AZT22's evidence about the events of 2012 that were the subject of her new information. The significance of the reference to that evidence is addressed later. 167 The Authority then turned to consideration of the new information about the traumatic event and sexual assault in 2012. Part of the difficulty with paras [78]-[89] and this part of the Authority's reasons arises because it deals with the relevant new information after setting out its conclusions on the substantive review on the basis of the review material in paras [65]-[77]. Paragraph [86] contains a specific reference to the Authority's consideration of the appellants' evidence about the events of 2012. Therefore, the way the Authority has dealt with the appellants' evidence about the events of 2012 generally and the new information about the alleged sexual assault in 2012 creates the impression that the Authority has used findings made in the substantive review of the material to inform its evaluation of the credibility of the relevant new information. However, that impression is at odds with the manner in which the Authority dealt with all other new information at the outset of its reasons under the heading 'Information before the IAA'. 168 In my view, paras [65]-[77] must be read as the Authority's consideration of the information it considered was before it for the purposes of the substantive review. That is, the Authority's consideration of the review materials, but not the relevant new information which it had said in para [24] had not met the criteria in s 473DD. 169 After explaining the reasons the Authority was not satisfied that, amongst other things, appellant BIR22 was in hiding in 2012, at para [77] the Authority said '[i]n coming to these conclusions, I have given consideration to the wife applicant's evidence to the IAA about the events of 2012 (discussed further below), which I do not find particularly corroborative.' What the Authority meant by 'not … particularly corroborative' is not clear. It is also unclear if the 'conclusions' to which the Authority is referring are the conclusions in para [75] that it was 'not satisfied' of key elements of the protection claims, or the conclusions about the credibility of the evidence and the problematic nature of the evidence, or both. 170 What is 'discussed further below' are the reasons that the Authority did not consider the new information about the alleged sexual assault was credible and, therefore, the reasons it was not information before the Authority. In that context, in my view, the opening words to para [77] cannot be read as the Authority taking into account evidence it has said it has excluded from review in reaching its conclusions on the appellants' evidence of events between 2010 and 2012. 171 An aspect of s 473DD(b)(ii) is whether the new information 'may have affected the consideration of the referred applicant's claims'. In my view, the opening sentence of para [77] is the Authority indicating that it has also considered if the new information about the alleged sexual assault 'may have affected' the other claims about the events of 2012. In particular, if the new information had the potential to overcome the problems with the evidence described in paras [67], [75] and [76] and could be considered as confirming the key elements of the appellants claims discussed in paras [66]-[74]. 172 While it may be said that evidence is either corroborative or it is not, the substance of the opening sentence is that the Authority has expressed the view that the relevant new information was not considered confirmatory of the appellants' evidence about the events of 2012 more broadly. That is, before considering the credibility of the new information the Authority expressed the view that it was not information that 'may have affected the consideration of' the claims of appellant AZT22 concerning the events of 2012 that were the subject of the discussion in paras [65]-[74] of the Authority's reasons. 173 It is open to disagree with the Authority's conclusion that the relevant new information was not relevant to, or may not affect or was not corroborative of the broader claims and consider that the conclusion was not rational, logical or legally reasonable. However, appellant AZT22 has not asserted an error of that kind. 174 The Authority then provided an explanation in paras [78]-[89] of the reasons for its decision that the relevant new information was not 'credible' personal information. The conclusions on the credibility of the new information were informed, in part, by the review material that resulted in the Authority not being satisfied that appellant BIR22 was in hiding in 2012. 175 Para [86] contains an explanation of the Authority's conclusions on the credibility of the relevant new information and it commences '[i]n respect of the new claims themselves, as noted above, I considered the problems with the wife applicant's and her husband's evidence about the events of 2012 so significant that I was not satisfied the husband was ever in hiding, which significantly undermines the credibility of the new information.' There is ambiguity in that sentence as well. It is unclear whether the Authority considered it was the conclusion on the evidence (not satisfied that appellant BIR22 was in hiding) or the problems with the evidence that undermined the credibility of the new information. 176 True it is that the first sentence suggests that the Authority has taken into account a conclusion reached in the substantive review of the claims about appellant BIR22 being in hiding in 2012, but, in my view, when that sentence is read in the context of the paragraph and reasons as a whole, it is the 'problems with the wife applicant's and her husband's evidence about the events of 2012' that is the reason given for undermining the credibility of the new information. As noted above, the problems with that evidence are identified in paras [65], [67], [75], [76] and [77]. Paragraph [75] describes most of the problems and ends with the conclusion that the Authority was not satisfied that appellant BIR22 was in hiding in 2012. 177 The next sentence in para [86] is '[f]urther, aside from the problematic evidence in respect of the events of 2012 already discussed, I have concerns with aspects of the new information.' The Authority then identifies aspects of the new information which it considered were not credible before indicating '[t]his leads me to further doubt the credibility of the new information.' Therefore, the second reason the Authority gives in para [86] was 'aside from the problematic evidence in respect of the events of 2012'. The second reason is not expressed to be aside from not being satisfied that appellant BIR22 was in hiding. That is, the emphasis for the first reason given in para [86] is on the 'problematic' evidence in the review materials not on the conclusion that the Authority reached on that evidence in the substantive review. That is also consistent with the references in para [65] to evidence that was 'highly problematic' and para [76] to 'problematic evidence' that was not addressed. It is also consistent with the reference in para [87] to 'difficulties with the evidence about the events of 2012' there referred to as part of the conclusion that the relevant new information was not credible. In context, therefore, the reference in the first sentence of para [86] to 'so significant that I was not satisfied her husband was ever in hiding' is to underscore the significance of the problems with the evidence rather than indicating that the ultimate conclusion (that the Authority was not satisfied that BIR22 was in hiding) undermined the credibility of the new information. 178 Again, it is open to disagree with the Authority's conclusion about the credibility of the relevant new information and to consider that it was not rational, logical or legally reasonable for the Authority to conclude that evidence from a person alleging to have been sexually assaulted, who had reasons for not raising that claim at an earlier point in time and whose claim was consistent with country information was not credible even if it were based, in part, on a premise that was founded on problematic or other evidence that was not considered credible or supportive of the other claims made. However, appellant AZT22 has not maintained that an error of that kind was made. 179 In my view, the Authority's reasons read as a whole without an eye keenly attuned to error do not reveal that the Authority embarked on the substantive review without considering if the relevant new information met the criteria in s 473DD(b)(ii). The AZT22 Authority reasons indicate that the Authority considered the review materials and formed views about the credibility of the appellants' evidence in support of appellant AZT22's protection claims, the Authority used those views as part of its evaluation of the credibility of the relevant new information. That was permissible. While there is ambiguity in the Authority's reasons and I accept that other interpretations are available, appellant AZT22 carried the onus of establishing jurisdictional error on the ground advanced before the primary judge. She has not discharged that onus. 180 It follows that while I consider that the primary judge made an error in considering that the Authority was permitted to make findings in the exercise of the substantive power of review and to use those findings in the exercise of the procedural power of evaluating if new information met the criteria in s 473DD, I do consider that error has resulted in an erroneous judgment.

Consideration: appellant AZT22 ground 2 181 The conclusion regarding ground 1 of the notice of appeal makes it strictly unnecessary to consider ground 2 and the issue of materiality. However, since initial preparation of these reasons I have read a draft of the reasons of Banks-Smith and Jackson JJ. As their Honours have reached a different conclusion to me on ground 1, it is appropriate to address the ground on the assumption that the Authority made an error of law in that it considered and made final findings of fact on the review material to the effect the appellant BIR22 was not in hiding in 2012. 182 If ground 1 of the appeal were upheld, the consequence would be that the Authority failed to exercise the procedural power described in s 473DD according to law. However, such an error would only be jurisdictional error if the error were material. The point of difference between the parties on materiality was whether the relevant question of materiality concerned the exercise of the procedural power in s 473DD or the performance of the substantive review duty. 183 I agree for the reasons given by Banks-Smith and Jackson JJ that if the Authority made the error of reaching a final conclusion on the facts in the substantive review before considering if the relevant new information satisfied the criteria in s 473DD(b)(ii), then that error was material. Therefore, on that assumption, I would uphold ground 2 of the appeal.

Consideration: appellants BIR22 and BIS22 ground 1 184 As appellant AZT22 fails on ground 1 of her notice of appeal, appellants BIR22 and BIS22 must also fail on their ground of appeal.

Conclusion 185 The appeals should be dismissed with costs. I certify that the preceding ninety-four (94) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Feutrill.