Consideration
23 As a preliminary matter I note that the Minister accepted that substantial injustice would flow to the applicant if the judgment of the primary judge was assumed to be wrong and leave was refused. As the Minister submitted, in those circumstances, the applicant would be deprived of a further opportunity to pursue merits review of the delegate's decision before the Authority.
24 Thus at issue is whether there is sufficient doubt as to the correctness of the judgment below to warrant its reconsideration or whether there is a reasonably arguable case that the primary judge's decision is affected by an appealable error.
25 I turn then to consider whether that is so first, by reference to the grounds raised by the applicant and then by reference to an additional matter raised by the Minister.
26 By his first ground the applicant contends that the primary judge failed to find that the Authority failed to consider an integer of his claims, namely that he was an ex-LTTE solider and that, upon their return, most LTTE soldiers are arrested at the airport, taken into custody and tortured.
27 This proposed ground was not raised before the primary judge. Thus the applicant would require leave to raise it for the first time on appeal. In summary, leave to argue a new ground on appeal not raised before the primary judge will only be granted where it is expedient in the interests of justice to do so: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 at [46]-[48]. The Court may grant leave if a point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. An explanation for the failure to raise the ground below will also usually be required: see SZLPH v Minister for Immigration and Border Protection (2018) 266 FCR 105 at [28]. In this case, the proposed ground is without merit.
28 The applicant's claim that as an ex-LTTE soldier he would be arrested, taken into custody and tortured on his return was clearly made on the materials before the Authority. For example in his statement submitted with his application for a SHEV, the applicant said, among other things, that if he was to return to Sri Lanka there was "possible detention and interrogation on [his] arrival or later" and that he would "be closely interrogated regarding [his] illegal departure when the Sri Lanka security forces [were] likely to find that [he] was with the LTTE". But, that claim was addressed by the Authority. Relevantly, at [56] of its decision record the Authority noted that it had considered the applicant's assertion that he "will be closely scrutinised by the security forces at the airport on return as a failed Tamil asylum seeker originally from the north and that it is likely that they will discover from his home town/local Sri Lankan authorities/pro-government Tamil militant group that he was a long term member of the LTTE and therefore he is likely to be arrested, detained and harmed as a former member of the LTTE". The Authority reasoned that this did not give rise to a relevant risk of harm given the applicant's lack of profile at the time of his departure from Sri Lanka and country information that reported a decrease in systematic surveillance of returnees and a general improvement in the security situation.
29 By the second proposed ground the applicant contends that the primary judge failed to find that the Authority failed to exercise its powers pursuant to s 473CC of the Act reasonably because it made findings that were not supported by evidence. This ground appears to relate to ground 1 before the primary judge by which, as set out at [26] above, the applicant contended that the Authority's conclusion that he did not face harm from his past LTTE association was reached through an illogical reasoning process, was not open on the evidence, or alternatively there was no logical connection between the evidence and the inferences drawn by the Authority.
30 The applicant has not identified any particular error in the primary judge's reasoning and I am unable to discern one. At [29]-[31] of CDJ19 the primary judge referred to the evidence and material before the Authority to which it had regard in considering the applicant's claims. At [32] the primary judge concluded that:
It is apparent that the Authority took into account various sources of country profile information, and applied this information to the applicant's claims. I accept that the Authority engaged in a reasonable engagement with the claims and the material available, and came to the rational, intelligible conclusion, based on the evidence, that the applicant did not meet the requirements of the definition of refugee under the s.5H(1) of the Migration Act, and was not of sufficient interest as to face a real chance of harm in accordance with s.36(2)(a).
31 For completeness I note that, upon review, there is no apparent illogicality in the Authority's reasons. The Authority explained why it reached its conclusions about the applicant's claims. In particular, while it accepted some of his claims, it rejected others. That is, it accepted that the applicant had at some time been a member of the LTTE but nevertheless was not satisfied that he would face the type of harm he identified upon his return. There is nothing illogical about that approach and the reasoning process undertaken by the Authority.
32 Based on his proposed grounds of appeal the applicant has not established that there is sufficient doubt about the correctness of the primary judge's reasons or a reasonably arguable case that the primary judge's decision is affected by an appealable error. On that basis alone I would not grant leave to appeal. However, there is a further matter to be considered.
33 In his submissions the Minister, quite properly and in accordance with his obligations as a model litigant, identified an error in the Authority's reasons by reference to its consideration of one aspect of the new information proffered by the applicant to it, being the Summons referred to at [10] above which was provided to the Authority under the cover of an email dated 7 April 2019. This was not raised below and thus considered by the primary judge. Regrettably, again as identified by the Minister, several documents which had been before the Authority were omitted from the court book relied on before the primary judge. One of those documents was the email dated 7 April 2019 and the enclosed Summons.
34 Section 473DD of the Act mandates when the Authority can consider new information. It 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.
35 In ABH18 v Minister for Home Affairs [2020] FCA 620 at [24] Charlesworth J observed the following about the operation of s 473DD:
It is well established that the conditions in s 473DD(a) and (b) are cumulative: both must be satisfied before the Authority can consider the new information: Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at [31] (Gageler, Keane and Nettle JJ). It is just as well established that the two conditions in s 473DD(b)(i) and (ii) are alternatives: Plaintiff M174/2016 at [31].
36 The Authority considered whether it should have regard to the Summons at [16]-[18] of its decision record. At [16] it referred to receipt of the email and the enclosed Summons and described the Summons, noting that it was new information. At [17]-[18] the Authority said:
17. Purportedly the document indicates that in 2018 the Sri Lankan authorities summonsed the applicant to appear in court in relation to an incident which occurred more than ten years earlier. The summons asks the applicant to report to the court on a given date, but from the applicant's evidence at the SHEV interview the authorities are aware he is overseas; he stated that when they visited his wife after his departure they asked when he was returning to Sri Lanka. I am also concerned that this claimed interest has arisen only after the negative decisions made by the delegate and the IAA. There is no indication in the applicant's claims of any interest in him because of this incident during that ten year period. I am not satisfied that it is only coincidence that this summons was issued after these negative decisions.
18. Furthermore it is not apparent how this incident relates to the applicant's claims. There is no indication in his claims that the applicant was involved in such an incident, or was suspected of being so involved, and the applicant has not provided any information to the IAA to explain the relevance or context of this document. In the absence of any apparent link between the document and any of the protection claims or the applicant's circumstances I am not satisfied that the document is a translation of a genuinely issued Sri Lankan court summons. The applicant has failed to satisfy me that this document contains credible personal information, and I have not considered it.
37 As is evident the Authority accepted that the Summons post-dated the delegate's decision and thus could not have been given to the Minister. It follows from that finding that the Authority was satisfied that the requirements of s 473DD(b)(i) of the Act were met. The Authority went on to express its view that it was not satisfied that the requirements of s 473DD(b)(ii) were met in relation to the Summons in that it was not satisfied that the document contained credible personal information. The Authority then needed to consider whether there were exceptional circumstances to justify consideration of the Summons as required by s 473DD(a) of the Act. However, it is clear that it failed to do so and therefore it failed to comply with s 473DD of the Act in considering the Summons.
38 As the Minister submitted, whether this error amounts to jurisdictional error depends upon whether it was material. In EAC16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1657 at [38] Wheelahan J relevantly stated:
The application of the principles in SZMTA demonstrates that the question of materiality is to be considered in relation to the actual decision under review, and not against the prospect that another decision-maker might take a different course. That is because the primary question before the Court in considering materiality is whether the decision in issue was made outside the scope of the statutory authority to decide, and not whether the granting of relief would be futile: cf, Hossain at [13]-[14] (Kiefel CJ, Gageler and Keane JJ) and at [78] (Edelman J), and Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141 at 145 (Mason, Wilson, Brennan, Deane and Dawson JJ).
39 The Minister submitted that in this case the Authority's failure to comply with s 473DD of the Act in relation to the Summons was not material. That is because had the Authority complied with the requirements of s 473DD of the Act and assuming, in the applicant's favour, found exceptional circumstances to justify consideration of the Summons, its consideration of that document (at [18] of its decision record) makes it clear that it could not have reached a different result on the review. I accept that submission. Relevantly, the Authority found that the Summons was not a genuine document and that it was not apparent how it related to the applicant's claims. While the Authority purported to give substantive consideration to the Summons, notwithstanding its more limited task under s 473DD of the Act, it expressed its serious concerns about that document and, in effect, rejected it as genuine.
40 A similar conclusion was reached in ABH18. In that case there had also been a failure by the Authority to comply with s 473DD of the Act in relation to new information. However, Charlesworth J found that, in the context of its consideration of the information for the purposes of s 473DD of the Act, the Authority had given substantive consideration to whether the new information could be believed and had reached a substantive conclusion that it could not. In those circumstances her Honour was not satisfied that the Authority's error could materially affect the ultimate outcome of its review. At [45] her Honour relevantly said:
… If the new information satisfied the requirements of s 473DD of the Act, the appellant was entitled to have that material assessed against the whole of the material before the Authority. The obligation to consider the information would have included an obligation to make a finding as to whether or not the claimed recent events had in fact occurred in light of all of the circumstances of the appellant's case. That is substantially what the Authority did, albeit purportedly under the procedural framework of s 473DD. In the unusual circumstances of the appellant's case, the Authority did give substantive consideration to the information of the kind it would have been obliged to give, had it not determined that it was precluded by s 473DD from doing so.
41 Her Honour thus concluded that to the extent that the Authority's approach was erroneous, the errors were not material and hence not jurisdictional. The same conclusion follows in this case given the Authority's findings about the Summons set out at [39] above.
42 In light of the error which has been identified in the Authority's reasons, leave to appeal should be granted but limited to the question of whether the Authority erred in concluding in relation to the Summons that the requirements of s 473DD were not satisfied and, if so, whether the error is material. While that ground was not raised before the primary judge, in the circumstances of this case, it is expedient in the interests of justice to grant leave to raise it for the first time on appeal.
43 The Minster submitted that if the Court was minded to grant leave to appeal, the appeal should be dismissed with costs. Given the way in which this issue came to light, the notice given to the applicant of the issue by way of the Minister's submissions, which the applicant acknowledged at the commencement of the hearing he had read upon receipt, and that I have accepted that in the circumstances of this case the error was not material such that it could not be regarded as jurisdictional, that is how I will proceed. As the outcome is clear, it is in the interests of the parties and in accordance with s 37M of the Federal Court of Australia Act 1976 (Cth) that I do so.