Consideration
28 It was difficult to follow the appellant's written and oral submissions as they bore no symmetry with the particulars of his grounds of appeal. However, at hearing, the appellant accepted that the alleged jurisdictional error arising from the Authority's approach to its task as required under s 473DD, which the primary judge failed to find, manifested by reason of the following four matters.
29 First, criticism is made of the Authority's dissatisfaction with the appellant's reasons (at IAA[12] and [13]) for not providing the information previously. As extracted above, in this portion of the reasoning, the Authority was not persuaded by the appellant's explanation (as to why he had not previously disclosed this information concerning the appellant's brother). Part of the Authority's dissatisfaction arose from the fact that despite the appellant's purported silence being because of what his brother had warned him, he had in fact disclosed his brother's association with the LTTE in the protection visa interview. The appellant submitted that no consideration was given by the Authority in this context to the circumstances in which the appellant attended that interview (without representation and where the interview became disjointed and confused).
30 It is apparent from IAA[12] and [13] that the Authority was considering the first limb of s 473DD(b), being s 473DD(b)(i). The determination of why the new information was not, and could not have been, provided to the Minister, is part of the two limbs, one of which must be established before consideration is given whether there are exceptional circumstances to justify the consideration of new information: s 473DD and AUS17 at [11]. The Authority was considering what was required of it.
31 No persuasive submission was made as to how this alleged failure, even if it occurred, could constitute an error in the Authority's approach to the task required of it under s 473DD. The Authority had made multiple references in its reasons to the September submission regarding the new information: IAA[4] and [8]. The appellant conceded also that the Authority, later in its reasons, noted the confused and disjointed nature of the appellant's answers as part of his interview and took this into account when assessing his evidence: IAA[20]-[21]. It is unsurprising that the IAA did not mention this submission regarding the appellant's interview being disjointed and confused as part of its consideration of the new information. This is because it did not form part of the appellant's submission concerning the new information and did not form part of the purported explanation for why the appellant had not mentioned that his brother was a high-ranking LTTE member. The issue was the inconsistency between what the appellant said in his September submission as to why he had not referred previously to his brother being a high ranking LTTE member or his "LTTE claims" (purportedly because his brother had warned him not to) and the fact that he had referred to his brother's links with the LTTE in the protection visa interview.
32 As part of this submission, the appellant asserted that the IAA had made an erroneous factual finding when identifying what it said comprised the "new information" at IAA[8]. The alleged error was its description of the appellant's brother S "as a high ranking LTTE member" when the Authority purportedly should have described him as a high ranking LTTE officer. I do not accept that the use of this descriptor was an error at all. The appellant, through his representatives, in his 20 September submission referred to S as being "a high ranking LTTE member". It cannot be inferred from the IAA reasoning that the Authority did not understand that he was an "officer". The Authority understood that it was alleged that S was "high ranking" within the LTTE organisation.
33 Secondly, issue is taken with the Authority's approach to s 473DD(b)(ii) and finding that the new information was not credible information (and therefore did not satisfy the second criterion: s 473DD(b)(ii)) because it lacked detail and elaboration and did not conform with the entirety of the appellant's claims: IAA[15].
34 The error was said to have manifested (in part by repeating earlier submissions) by a failure of the Authority to consider the extent of the information already before it which was consistent with the new evidence (reference was made to the applicant's visa application, and to the protection visa interview transcript). I do not accept this submission. I note that at the hearing of this appeal, the appellant conceded that the extent to which the information was detailed could have bearing on the question of whether it is "credible" within the meaning of s 473DD(b)(ii). I can discern no error in the Authority's reasons.
35 It was also contended that consideration should have been given, when considering the credibility of the personal information, to the circumstances of and apparent "confusion" arising as part of the interview process. For the reasons given above, I reject this submission.
36 It appeared, though the submission was imprecise, that the appellant also contended the Authority erred when approaching its task regarding the credibility of the new information by reason of the purported factual error in IAA[8], namely that S was a LTTE officer, not just a LTTE member. This was submitted to have bearing on the extent of the appellant's profile and interest to the authorities. For the same reasons as above, I reject this submission. The Authority understood the claim to be that the brother was high-ranking, this was the critical issue.
37 The appellant also submitted that the Authority erred in the approach it took to its statutory task under s 473DD(b)(ii), because IAA[15] and [16] had to be read together, such that the Authority erroneously went down the path of assessing the veracity of the appellant's claim and made credibility findings at an anterior stage when it was only charged at that stage with determining whether the new information was "open to be or capable of being accepted by the Authority as truthful" (citing the Full Court's holding in BTW17 at [37], in turn citing with approval CSR16 at [41]).
38 I do not accept that the paragraphs should be read in that way. The Authority considered in a sequential way the criteria under s 473DD(b) before the criterion under s 473DD(a). There is a distinction between the reasoning in IAA[15] and IAA[16] by not only the deployment of a newly formatted paragraph but the use of the adverb "[o]verall" at the beginning of the sentence, to mean, taking into account everything. This was an orthodox way, consistent with holding in AUS17, to then go on to consider the s 473DD(a) limb.
39 The appellant sought to rely on the holding in AZT22 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 90 at [55]. However, I do not consider it to be of assistance in the circumstances of this case. The Authority's reasons in that case were crafted very differently. There was no clear demarcation between the consideration (and rejection) of the new information and the Authority's overall consideration of the evidence. Furthermore, contrary to what was found in AZT22, the Authority made no findings with respect the appellant's claims (as they arose from the new information) until dealing with the s 473DD(a) limb, but rather merely recognised what the claims were.
40 The Authority's reasoning at IAA[15] must be read with IAA[14], it was open for the Authority to find that the appellant had not explained how the appellant's brother's profile coheres with the new claim, or the new information coheres with the appellant's narrative. In AZT22, Banks-Smith and Jackson JJ acknowledge that during the procedural stage of assessing whether new information is credible, this process is not "divorced from the overall deliberative review process". There is an overlap: AZT22 at [20] and [65]. However, what cannot occur is the Authority making a fresh decision using new material which might ultimately be excluded. At the later, deliberative stage, the Authority, being satisfied that it can take into account the new information, must then consider that new information along with the review material provided by the Secretary, and undertake a fresh review of the visa refusal decision: AZT22 at [24]. I can discern no error of this kind in the Authority's reasons.
41 Thirdly, in the context of considering IAA [12] and [13] it was submitted that dissatisfaction with a reason for not previously disclosing the information is not an answer to the question of "exceptional circumstances" and there was a need for the Authority to consider those "factors leading to the reason" under s 473DD(a). However, this submission appears contrary to the holding in AUS17 above. The High Court has held that logic and policy demand that the Authority assess such new information first as against the criteria in s 473DD(b). If the Authority is not satisfied that the new information falls within that criteria it is then prohibited from taking the new information into account when making its decision, it does not need to go on to consider whether there are "exceptional circumstances" under s 473DD(a): AUS17 at [11].
42 Fourthly, when addressing "exceptional circumstances" (s 473DD(a)) it is submitted that the IAA's decision confuses the issues by determining that the new information about the appellant's brother is "not true": IAA [16].
43 The appellant conceded that in the event that I can discern no error in the Authority's approach to the two limbs under s 473DD(b), then whether or not there is error with respect to s 473DD(a) is immaterial, because the Authority, by reason of the holding in AUS17 at [11], is prohibited from going that step further. Accordingly, given my findings above, there is no need for me to go on to consider this contention.
44 However, to the extent that I am wrong with respect to the above, and concerning the materiality issue, consistent with my reasoning above, a fair reading of IAA[16] is that the Authority, when considering whether exceptional circumstances existed, expressed a view about the truthfulness of the claims. It is my view, in this context, that the Authority was able to express such a view, noting that a broad meaning is to be given to the words "exceptional circumstances": Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; 257 FCR 111 at [104]. The Authority could, despite having determined whether the information was credible according to the lower threshold, go further and express a conclusion about the truth of any new information presented: DLB17 v Minister for Home Affairs [2018] FCAFC 230 at [22].
45 Furthermore, and separately, given the Authority made no credibility finding against the appellant with respect to the rest of its reasons, any error associated with the findings regarding the truthfulness of the appellant's claims regarding S could not have reasonably affected the outcome.