the appeal
20 In his notice of appeal filed on 6 December 2018 the appellant raises one unparticularised ground of appeal as follows:
The Federal Circuit Court erred in finding there was no jurisdictional error in the IAA decision and also Judge erred in dismissing my Court Application. I will file the Particulars of the grounds in my Amended Notice of Appeal/Court Submissions upon receiving a copy of the Transcript of his Honours reasoning.
21 The appellant did not file an amended notice of appeal providing further particulars nor did he file any written submissions in accordance with the orders made by the Court or as foreshadowed in his notice of appeal.
22 However, at the hearing the appellant provided the Court with written submissions which he said set out the basis of his appeal and the submissions he wished to make to the Court. The Minister did not object to the appellant relying on those submissions.
23 The appellant first takes issue with the Authority's finding at DR [8] in relation to the New Information. It is convenient to set out the appellant's submissions in that regard, which appear at [5]-[8] of his written submissions, in full:
5. 'New Information': The Authority considered it was entitled to obtain new information being 'specific information on the requirement of Sri Lankans of Tamil ethnicity living on Colombo to register with the Police.' [8] The Authority said it was 'necessary to obtain that new information in order to determine this issue and, in my view, there is insufficient information before me regarding the registration requirement for me to be able to properly assess the claim.' [8].
6. The Authority continued: 'For these reasons I am satisfied there are exceptional circumstances to justify my considering that new information under S 473DD.' The IAA did not refer to S 473DD (b). As stated by White J in BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958 at [8] "As can be seen, s 473DD provides that the IAA "must not consider" new information unless both of the two conditions are satisfied." The two conditions are Ss (a) (exceptional circumstances) and (b ): there are 2 limbs in the alternative to Ss (b), being (b)(i) 'was not, and could not have been, provided to the Minister before the Minister made the decision under S 65', and (b)(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.'
7. The 'new information' mentioned in [8] was not clearly identified, but at [23] the Tribunal referred to new information and footnoted 2 references - #3 being Immigration and Refugee Board of Canada (2005-2006) and #4 being Guardian (Unlimited) UK 12 July 2006. At [CB97] the Delegate had referenced #4, and so it would appear in respect of #4 the test in 473DD (b)(i) was not met. In any event, there is no given reason by the IAA as to why either documents could not have been 'provided to the Minister before the Minister made the decision'. Clearly s 473DD (b)(i) could not have been made out in respect of#3 or #4, being documents over 10 years old.
8. Further, being country information, the reports could not amount to 'credible personal information', and so s 473DD(b)(ii) could not have been satisfied. The IAA considered that the basis for it to have obtained the new information was because there was 'insufficient information' regarding the registration requirement. While the IAA is entitled to get new information (S 473DC), the IAA cannot consider it unless it satisfied the cumulative conditions under S 473DD: in this case the new information did not satisfy either Ss (b)(i) or (b)(ii), and so the IAA consider irrelevant matters when it considered the new information.
(emphasis in original.)
24 The appellant's submissions are misconceived. In order to explain why that is so it is necessary to set out the relevant statutory regime which applies to the Authority's consideration of "new information".
25 Section 473DC of the Act provides that the Authority may in relation to a fast track decision get any documents or information, defined as "new information", that was not before the Minister when the decision under s 65 of the Act was made and which the Authority considers may be relevant.
26 Section 473DD provides:
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
(emphasis added.)
27 Also of relevance is s 473DE(1) of the Act which provides that the Authority must give a referred applicant the particulars of any new information where the new information has been or is to be considered by the Authority under s 473DD and it would be the reason or part of the reason for affirming the fast track reviewable decision; explain to the referred applicant why the new information is relevant; and invite the referred applicant to comment on the new information, either in writing or at an interview. However, s 473DE(3)(a) provides that subs (1) does not apply to new information that is not specifically about the referred applicant and is just about a class of persons of which the referred applicant is a member.
28 The Authority explained at DR [8] that it considered that it was necessary to obtain the New Information in order to determine the issue of the requirement that Sri Lankans of Tamil ethnicity living in Colombo register with the police because there was insufficient information before the Authority in relation to the registration requirement to enable it to properly assess the appellant's claim. Accordingly the Authority was satisfied that there were exceptional circumstances to justify it considering the New Information pursuant to s 473DD.
29 The New Information was not information which was "given or proposed to be given to the Authority by the [appellant]". It was "new information" which the Authority sourced itself. Accordingly s 473DD(b) was not engaged and, contrary to the appellant's submission, there was no requirement for the Authority to be satisfied of either of the matters in s 473DD(b).
30 As to the second document referred to by the appellant, as explained at [35] below, that was not "new information" but formed part of the material provided by the Secretary to the Authority. Thus s 473DD did not apply to it.
31 The second part of the appellant's submissions raises the fact that the delegate accepted that the appellant registered with the police, contrary to the finding made by the Authority. After referring to the Authority's findings which led it to conclude that it was not satisfied that the appellant registered with the police in 2006, the appellant submitted that the "Federal Circuit Court committed jurisdictional error in not finding the [Authority] took into account irrelevant considerations - being the 2 publications which it was not entitled to do". Once again, this submission does not establish any error on the part of the primary judge.
32 First, that the delegate accepted that the appellant registered with the police, while the Authority did not, does not affect the Authority's decision. In DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12 at [72] a Full Court of this Court (Reeves, Robertson and Rangiah JJ) said:
In our opinion, Pt 7AA contemplates that the Authority will evaluate for itself the material considered by the delegate. We do not consider that the fast track statutory regime of Pt 7AA requires the Authority to notify the referred applicant that it is considering taking a different view, adverse to the referred applicant, of the material considered by the delegate. To that extent we agree with the primary judge, at [106], that the Authority is not required to inform the appellant of specific reservations about the appellant's case and to provide the appellant with an opportunity to respond.
33 Secondly, the two documents referred to by the appellant were, contrary to his submission, documents to which the Authority was entitled to have regard and were not irrelevant considerations. Those documents were referenced at footnotes 3 and 4 in DR [23] and are described at [12] above.
34 The first document was the New Information in relation to which the Authority was satisfied that there were exceptional circumstances to consider it pursuant to s 473DD(a) of the Act. No error has been shown in its finding in that regard. The Authority was also satisfied that it did not need to provide particulars of the New Information to the appellant or give him an opportunity to comment on it because it was not specifically about the appellant but was about a class of persons of which the appellant was a member, namely Tamils living in Colombo. The appellant does not challenge that finding but, in any event, as the primary judge found, it was properly made.
35 The second document was country information which was part of the material referred to the Authority by the Secretary under s 473CB of the Act. That that is so is evident from the fact that the delegate referred to that same document in its decision at footnotes 8 and 12. Indeed, so much is acknowledged by the appellant at [7] of his submissions (see [23] above).
36 The appellant has not established any error in the reasons of the primary judge.