CONSIDERATION
35 It would be fair to say that the appellant's challenge to the Authority's decision shifted ground at the hearing. The first limb of the appellant's case, as indicated above, was that the Authority erred in concluding that a specific item of information was new information. This was the information conveyed by the statement:
If a person is detained by the Sri Lankan security services there remains a real risk of ill-treatment or harm requiring international protection.
It may be recalled that the appellant declined to define this item of information by reference to the author of the statement or the date of its pronouncement and contended that the Authority had erred in finding that this item of information was "new information" within the meaning of s 473DC of the Act.
36 If the Authority had indeed made this finding, then the Authority would have been unable to consider this information unless it was satisfied that the requirements of s 473DD of the Act were met with respect to it. This is because the delegate's decision was a "fast track reviewable decision", referred to the Authority for review under s 473CA of the Act. Pursuant to s 473DB of the Act, the Authority was required to review a referred decision by considering the review material provided to it by the Secretary under s 473CB of the Act without accepting or requesting new information and without interviewing the referred applicant: see also Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 264 CLR 217 at [22]. Section 473DD of the Act provides for exceptions for to this general rule: as to the correct approach to this provision, see AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; 269 CLR 495 at [11].
37 For present purposes, one may accept the Minister's submission that whether information is "new information" within the meaning of s 473DC of the Act is a question of fact, to be determined as a matter of substance, having regard to the circumstances of the case: see Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AWT19 [2021] FCAFC 58; 285 FCR 381 at [2]-[4] (Allsop CJ), [67], [97] (Kerr and Mortimer JJ); AAZ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 407 at [39] (Allsop CJ). One may also agree, as the Minister said, that information will not necessarily be "new" simply because it is provided in another document.
38 The appellant's first argument fails, however, because the Authority did not make the finding on which the appellant's argument depended. Paragraphs [2]-[14] of the Authority's reasons, as the heading to them indicates, concern "Information before the IAA". When these paragraphs are read as a whole, it is clear that the Authority's discussion at [13]-[14] was directed, as in fact it said, to "five publicly available sources of information" (emphasis added), none of which it found were before the delegate. These "sources" were identified in the footnotes to the February 2017 Submissions and, like the 2017 DFAT country report mentioned below, each contained country information.
39 The Authority discussed only one of these five sources separately. This was "the most recent Department of Foreign Affairs and Trade (DFAT) country report for Sri Lanka of 24 January 2017". At [14] of its reasons, the Authority recorded its satisfaction that this "could not have been provided to the Minister before the delegate's decision" and that there were "exceptional circumstances" justifying the consideration of this "new information". The Authority considered the other four "sources" collectively, at [13] of its reasons. In substance, the Authority determined that they ought not to be considered because they did not satisfy the requirements of s 473DD of the Act. While the Authority did not identify these other four sources by name, it can reasonably be inferred that one of these sources was the UK Upper Tribunal Decision, as the Minister submitted and the appellant ultimately accepted. Besides the 2017 DFAT country report, the UK Upper Tribunal Decision was one of the five publicly available "sources" referred to in the appellant's February 2017 Submissions that was not before the delegate at the time of the delegate's decision. Although the 2016 UK Home Office Report, which was before the delegate, provided the delegate with some information about the UK Upper Tribunal Decision and some of its contents, the entirety of that Decision was not before the delegate at the relevant time. It was therefore open to the Authority to determine that this "source", being the whole of the UK Upper Tribunal Decision identified as GJ and Others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC) was "new information". Since it was not satisfied that this new information met the requirements of s 473DD of the Act, the Authority put it out of account as the Act required it to do.
40 It did not follow from this determination, however, that the item of information identified in the appellant's Notice of Appeal was also excluded from the Authority's consideration. As we have seen, this information was also contained in [20] of the appellant's February 2017 Submissions. The Authority clearly had regard to these submissions. In substance, the Authority expressly determined at [3] of its reasons that these submissions did not constitute "new information" to the extent that the submissions repeated claims made to the delegate, responded to the delegate's decision, and discussed cases and referred to Tribunal and Authority decisions. Immediately after this, moreover, the Authority identified that the February 2017 Submissions contained "three pieces of information which were not before the delegate" and were therefore "new" information. The Authority proceeded to assess these items of information against the requirements of s 473DD of the Act. None of them was relevant to the information identified in the appellant's Notice of Appeal or to the UK Upper Tribunal Decision.
41 There is nothing in the Authority's reasons from which it might reasonably be inferred that the Authority's determination at [13] about four of the five publicly available sources of information mentioned by the appellant in his February 2017 Submissions also applied to other unidentified parts of the body of the submissions. Rather, at [13]-[14] the Authority stated that it would not accept four of the five country information "sources" identified in the footnotes to those Submissions. The item of information, which was set out at [20] of the appellant's February 2017 Submissions and relied on in his Notice of Appeal, was not the subject of the Authority's discussion at [13] of its reasons or otherwise held to be "new information" that did not meet the requirements of s 473DD of the Act.
42 This conclusion is confirmed by the fact that the Authority relied in its reasons on the 2016 UK Home Office Report, presumably on the basis that this Report was before the delegate when the delegate made the decision under review (as was indeed the case). The 2016 Home Office Report at [2.3.4] also set out the information identified in the appellant's Notice of Appeal.
43 The second limb of the appellant's case also fails, although by the end of the hearing it had ceased to depend on the first limb of the appellant's case and had become a free-standing argument. This was because the appellant failed to make out his case that the Authority failed to have regard to the information identified in his Notice of Appeal and at [20] of his February 2017 Submissions. In order to succeed, the appellant was required to show that, having regard to the evidence and other material before the reviewing court, on the balance of probabilities, the Authority did not have regard to that information. The appellant did not do this: see Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; 241 CLR 594 at [67] and SZDXZ v Minister for Immigration and Citizenship [2008] FCAFC 109 at [25].
44 First, it is apparent from the earlier discussion in these reasons that the Authority had regard to the February 2017 Submissions. As indicated earlier, the item of information to which the appellant referred was contained in [20] of those submissions. Secondly, the Authority evidently had regard to the country information before the delegate. This included the 2016 UK Home Office Report, [2.3.4] of which set out the identified information.
45 As noted at [8] above, [2.3.4] of the 2016 UK Home Office Report was cited in support of the delegate's finding that "[t]he UK Upper Tribunal (Immigration and Asylum Chamber) in 2013 concluded that the LTTE in Sri Lanka itself is a 'spent force' and there have been no terrorist incidents since the end of the civil war". Also, as noted above, the delegate referred to the 2016 UK Home Office Report in other contexts. Significantly too, the Authority, at [34] of its reasons, relied on the 2016 UK Home Office Report in concluding that "country information before the delegate overall indicates the situation for Tamils has improved": see [17] above. The quotation from that Report, which is relied on to support this statement is located at [2.3.1], which, like [2.3.4], is in the same part of that Report. This part is identified as "2.3 Assessment of risk". As counsel for the Minister noted, [2.3.1] made it clear that merely being a Tamil person was not enough to give rise to a well-founded fear of persecution, and that attention had to be given to the situation of a person under the current rather than the previous government of Sri Lanka.
46 The Authority also relied on the 2016 UK Home Office Report elsewhere in its reasons, to indicate that it was important to have regard to contemporary circumstances in Sri Lanka. In [33] of its reasons, for example, the Authority relied on [6.9.1] of the 2016 UK Home Office Report, in connection with its finding that "the Siresena government had de-proscribed a number of Tamil organisations".
47 It is evident that the 2016 UK Home Office Report set out at [2.3.4] the information identified and relied on by the appellant in his Notice of Appeal. It may reasonably be inferred from the Authority's reasons that it read and considered the whole of that Report and, in particular, had regard to that part of that Report headed "2.3 Assessment of risk". It specifically mentioned [2.3.1]. The fact that it did not specifically refer to [2.3.4] just a little further on in the same part of the Report does not support the inference the appellant would have the Court draw.
48 The appellant relied on MZYTS in support of his argument that the Authority failed to consider the information identified in his Notice of Appeal. In that case, the question was whether the Tribunal had identified all the material questions of fact necessary for it to address the visa applicant's claim. The Tribunal failed to consider an essential integer of the claim, "evidence of which was led to consolidate [the] claim and contradict information raised by the Tribunal at the hearing". As the Full Court said in that case, at [52], "[i]n the particular circumstances of [the] claim, if the material had been considered, one could expect that it would be referred to, even if it were then rejected".
49 This was not, however, simply a case of contradictory information, as the appellant put it. The Authority's own references to the 2016 UK Home Office Report made it clear that the issue of risk fell to be assessed by reference to the then current government, not a past government. The UK Upper Tribunal Decision was published three years before. The DFAT Country Information Report on Sri Lanka, on the other hand, was dated 24 January 2017: it was the most contemporaneous report at the time of the Authority's review. If the Authority were to act in conformity with the 2016 UK Home Office Report, then it had to have particular regard to current circumstances, rather than what had happened to failed Tamil asylum seekers returning to Sri Lanka after departing the country illegally at an earlier time under a previous government. This case is clearly distinguishable from MZYTS.
50 In the circumstances of this case, having regard to the material before the reviewing court, it could not reasonably be inferred from the fact that the Authority did not specifically mention the information identified in the appellant's Notice of Appeal that the Authority did not have regard to that information.
51 It is unnecessary to consider the appellant's argument that the failure to consider the identified information was a material error. The appellant has not established that there was any such failure.