CQQ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

The delegate's decision 7 In a decision on 29 July 2016, the delegate accepted "as plausible" that the appellant had a "subjective fear of harm if he returned to Sri Lanka on the basis of his Tamil background" (emphasis added). 8 However, the delegate made adverse credibility findings in relation to the appellant's claims with respect to: (a) his political involvement; (b) his and/or his family's harassment due to his political profile; and (c) harassment based on his or his family's real and/or perceived involvement with the Liberation Tigers of Tamil Eelam (LTTE). 9 Moreover, in relation to the appellant's claims of political involvement, the delegate found that there was some inconsistency between the appellant's claims at the entry interview and the SHEV interview. At the entry interview, the appellant stated he feared harm by the CID and Sri Lankan Army due to their suspicions he was involved with or had information on the LTTE. However, at the SHEV interview, the appellant stated he feared harm because of his political activities with the UNP, specifically as a failed Tamil candidate. 10 Further, the delegate found the following inconsistencies in relation to the appellant's claim. First, there was inconsistency between the comprehensive residential history he had provided to the Department of Immigration and Border Protection (as it was then known) and his subsequent claim at the SHEV interview to have been in hiding in Colombo with a UNP politician for safety for nine to ten months before leaving Sri Lanka. Secondly, there was inconsistency between the reported votes received by the UNP (according to the Global Tamil News) and the appellant's recount of the votes received. 11 As a result of the above inconsistencies, the delegate made a finding that the appellant had fabricated his evidence of political involvement in Sri Lanka, including his alleged time hiding in Colombo for safety, and did not accept as credible that he was a member of the UNP, stood as a candidate in the 2011 elections, or was "high profile". Accordingly, the delegate gave no weight to this evidence. The delegate also did not give weight to the supporting untranslated documentation, on the basis that the appellant did not highlight it as "directly or indirectly relevant to his personal situation". 12 Consequently, the delegate did not accept that the appellant's family in Sri Lanka was being subject to harassment due to the appellant's purported political profile. 13 Likewise, the delegate did not accept that the Sri Lankan authorities had an ongoing adverse interest in the appellant or his family due to any real and/or perceived involvement by them with the LTTE. 14 Based on the claims that the delegate did accept as credible, the delegate refused to grant the appellant a SHEV visa as she did not find that he was a person in respect of whom Australia has protection obligations pursuant to ss 36(2)(a) (as a refugee) or 36(2)(aa) (under complementary protection obligations) of the Act.

Procedural background 15 On 2 August 2016, the appellant received a letter from the IAA acknowledging the referral of his matter to the IAA for the purpose of review, pursuant to s 473CA of the Act. The IAA noted: The IAA will proceed to make a decision on your case on the basis of the information sent to us by the department, unless we decide to consider new information. We can only consider new information in limited circumstances, which are explained in the attached factsheet and Practice Direction. 16 In the attached Practice Direction, effective from 2 May 2016, it stated in relation to considering new information: 22. We can only consider new information (information that was not before the Department) in very limited circumstances as set out in section 473DD of the Migration Act. We must be satisfied that there are exceptional circumstances to justify considering the new information provided by either you or the Department. 23. If you want to give us new information, you must also provide an explanation as to why: • the information could not have been given to the Department before the decision was made, or • the information is credible personal information which was not previously known and may have affected consideration of your claims, had it been known. 17 In relation to invitations to provide new information, the Practice Direction stated: 27. We may separately invite you to provide new information or to comment on new information that may be adverse to your case. • If we invite you to provide new information, you must provide that information within the period specified in the invitation. • If we invite you to make comments on new information, you must provide those comments within the period specified in the invitation. 18 Then, in relation to interviews, the Practice Direction stated: Interviews 32. Interviews may be held in very limited circumstances in accordance with the provisions set out in the Migration Act. An interview may be held for us to obtain specific new information from you or another person. An interview may also be held to allow you to comment on new information that we have considered that may be adverse to your case. We will not conduct a full rehearing of the evidence or information that was before the Department. 33. Interviews will generally be conducted by telephone. … (Emphasis added). 19 Part 7AA, Division 3 of the Act relevantly provides: Subdivision A - Natural justice requirements 473DA Exhaustive statement of natural justice hearing rule (1) This Division, together with sections 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority. (2) To avoid doubt, nothing in this Part requires the Immigration Assessment Authority to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65. Subdivision B - Review on the papers 473DB Immigration Assessment Authority to review decisions on the papers (1) Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB: (a) without accepting or requesting new information; and (b) without interviewing the referred applicant. (2) Subject to this Part, the Immigration Assessment Authority may make a decision on a fast track reviewable decision at any time after the decision has been referred to the Authority. … Subdivision C - Additional information 473DC Getting new information (1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that: (a) were not before the Minister when the Minister made the decision under section 65; and (b) the Authority considers may be relevant. (2) The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances. (3) Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information: (a) in writing; or (b) at an interview, whether conducted in person, by telephone or in any other way. 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. … 20 Section 473BA of the Act further provides: … The Immigration Assessment Authority does not hold hearings and is required to review decisions on the papers that are provided to it when decisions are referred to it. However, in exceptional circumstances the Immigration Assessment Authority may consider new material and may invite referred applicants to provide, or comment on, new information at an interview or in writing. … (Emphasis added). 21 The form of review undertaken by the IAA is a "limited form of review" (s 473BA of the Act) and is "sui generis", which is not equivalent to the merits review undertaken by the Administrative Appeals Tribunal: BMB16 v Minister for Immigration and Border Protection [2017] FCAFC 169; 253 FCR 448 at [85]. 22 In the Full Court decision, Minister for Immigration and Border Protection v AMA16 [2017] FCAFC 136; 254 FCR 534 Griffiths J outlined at [19] - [20] the IAA's procedure of generally undertaking the review on the papers: 19. The legislative scheme obliges the IAA to conduct its review of a fast track reviewable decision referred to it by considering the review material provided to it under s 473CB, without accepting or requesting new information and without interviewing the referred applicant (s 473DB(1)). In other words, the review is generally conducted on the papers and focuses on the review material provided by the Secretary to the IAA. 20. There are provisions in Subdiv C of Div 3 concerning the IAA getting documents or information which were not before the primary decision-maker when he or she made the decision under s 65 and which the IAA considers may be relevant. Such documents or information are described as "new information" (s 473DC). It is made clear that the IAA does not have a duty to get, request or accept, any new information if requested to do so by a referred applicant or anyone else (s 473DC(2)). The IAA may, however, invite a person to give new information to it, either orally or in writing (s 473DC(3)). (Emphasis added).

Correspondence between the IAA and the appellant 23 On 8 August 2016, the appellant's then legal representative sent, by way of email, submissions to the IAA, further reiterating the appellant's claims of fear of harm if he were to return to Sri Lanka, with a greater emphasis on the harm he would suffer as a "Tamil failed asylum-seeker". These submissions in part relied on a Department of Foreign Affairs and Trade (DFAT) report dated 16 February 2015, which nonetheless pre-dated rather than post-dated the delegate's decision. The appellant's counsel at the hearing did not make submissions as to whether any part of the appellant's previous legal representative's submissions to the IAA constituted "new information", noting only that the IAA had stated at paragraph [4] of its reasons that the submission did not contain any new information. 24 Importantly, for the present case, at the conclusion of the submissions sent to the IAA, the appellant's then legal representative had submitted as follows: It is humbly submitted that the above evidence along with my previous information with evidence including the reliable country information on Sri Lanka to DIBP and this information and evidence give credibility to his refugee claims and his ongoing fear of persecution is [sic] being well-founded subjectively and objectively by this independent country information. I trust that you will contact him if any concern arises before you make a decision on your IAA review. He is willing to attend to the IAA hearing. He trusts that the IAA will invite him to appear before the IAA to give further evidence and present oral evidence if only any issue/issues arise, even after this submission, when the IAA review matter [sic] before it make [sic] a decision. (Emphasis added). 25 On 2 September 2016, the IAA emailed the appellant's then legal representative to clarify if he intended to represent the appellant or be the "Authorised Recipient" for the appellant of correspondence and documentation from the IAA. There is no evidence as to whether the appellant's then legal representative replied to this email. 26 On 8 September 2016, the IAA wrote to the appellant advising him of their decision to affirm the delegate's decision to refuse the appellant's visa application and enclosing their statement of decision and reasons.

The IAA's decision 27 The IAA accepted that the appellant "has an ongoing fear of harm in Sri Lanka on the basis of his Tamil ethnicity" and that "he would be considered a failed asylum seeker who departed Sri Lanka illegally". 28 The IAA did not accept "the applicant's claims that he stood as an election candidate for the UNP in 2011 and was subsequently threatened, tortured and kidnapped, leading to his hiding in Colombo in fear of further harm from the authorities and the EPDP". 29 In the IAA's reasons, it is explained why the appellant's claims of political involvement were not accepted: Claims regarding UNP participation not made on arrival in Australia … 15. At his SHEV interview on 9 May 2016, the delegate drew the applicant's attention to his failure to put forward the UNP claims in his entry interview or dealings with IHMS [International Health and Medical Service] and she gave him an opportunity to explain this omission. The applicant stated that this omission occurred because in the entry interview he was told to give his claims briefly. I have had regard to the recording of the entry interview and I accept that the DIBP officer did ask the applicant to explain why he left Sri Lanka in one or two sentences. I accept this could account for the applicant failing to mention his UNP involvement in response to that question. However, the DIBP officer also asked the applicant, in a direct question, if he was involved with any political group to which the applicant responded no. Having listened to the entry interview I find there is no ambiguity in the [sic] either the question or the applicant's response. 16. In considering the veracity of the applicant's UNP claims I have had regard to the fact that he did not make these claims when he first arrived in Australia and I find his failure to do so damages the credibility of the UNP claims. I place significant weight on the direct question put to the applicant at the entry interview about political activity and his negative response. I do not accept that if he had genuinely been a candidate in the 2011 election that he would have responded in the negative when directly asked. 17. The applicant also stated in the SHEV interview that he had been frightened to give the account of his political involvement earlier as he was scared he could get into trouble. I note that, on his own evidence at the entry interview, the applicant had not been threatened on the boat on the way to Australia or advised by any persons to not give a true account of his circumstances. Inconsistent information about election results 18. At his SHEV interview the applicant was asked about the result in the 2011 election. He confirmed that he stood as a candidate for the UNP in the Nallur Pradesasabai District in Jaffna and received 395 votes. The delegate put to the applicant that the Global Tamil News reported the UNP polled only 105 votes. When asked to explain the discrepancy the applicant repeated that he received 395 votes personally and the combined UNP vote for all the candidates was over 2000 votes. The applicant's account of the result of the election is not consistent with the report in the Global Tamil News. The Global Tamil News is an independent media outlet operating in Sri Lanka and in this article the outlet reported the reported [sic] the result of many of the local authority districts in the July 2011 election. There is no reason to believe that the results reported are not accurate and I give significant weight to this information. I find that the applicant's inconsistent account compared to independent country information brings the credibility of his claim to have been a UNP candidate into doubt. Claim to have been in hiding in Colombo made at SHEV interview 19. At the SHEV interview the delegate put to the applicant that she had doubts about his claimed fear of harm following the July 2011 election. She asked why, if he was in fear for his life, he had stayed in the family home in Mallikai until departing Sri Lanka in September 2012. The applicant responded that he did not stay in Mallikai; that after the election he went to Colombo where he lived in hiding for nine to ten months. The applicant had not provided this information in his SHEV application or in any of his previous dealings with the Department. When asked at the SHEV interview why he had not advanced this claim previously, the applicant responded that he thought he would say it at the interview. He reiterated that in the past he has been asked to give his claims briefly. While this explanation may account for the applicant not having provided this information at his entry interview, it does not explain why he did not advance this claim in his SHEV application. It is plausible that the applicant did not provide the information about hiding in Colombo at the entry interview on the basis that he was keeping his account brief, but I find it implausible that he did not make this claim in his SHEV application, considering it forms a pivotal part of his claims. 20. In considering the veracity of the applicant's claim to have hidden in Colombo I have also had regard to information he has given to the Department regarding his residential address history. The applicant has been consistent in his entry interview and SHEV application in stating that from 2002 to 2012 he lived in Mallikai, Karai Nagar, Northern Province. At the entry interview the applicant was asked if he had lived at any other addresses or in any other city from 2002 to 2012 and he responded no. At the beginning of the SHEV interview the delegate clarified the applicant's residential addresses with him. The applicant again advised that from 2002 to 2012 he lived in Mallikai, Karai Nagar, Northern Province and he did not take the opportunity to state he had lived in Colombo in 2011/2012. In response to a direct question from the delegate asking if he had ever lived in any part of Sri Lanka apart from Northern Province he responded no. I accept that a person may omit to provide an address of a place where they have stayed for a brief period, but the applicant is claiming to have been in hiding at the same address in Colombo for a period of nine to ten months. This is a considerable period of time and if he did reside in Colombo for that period I find it implausible that the applicant failed to mention it on the number of occasions when asked direct questions about his residence. I note that in his SHEV application he listed in detail some very short term addresses in Australia. 21. The applicant's claim to be in hiding in Colombo until leaving Sri Lanka is also inconsistent with the detailed account he has given the department of his departure from Sri Lanka. In the entry interview the applicant detailed meeting a person in Jaffna on 31 August 2012 and catching a bus to Colombo to board the boat. This account is not consistent with the claim made at the SHEV interview of being in hiding in Colombo until immediately before his departure. In his SHEV application, in response to question 50, "Describe how you departed your home country", the applicant responded, "Details provided at my entry interview". I note that the applicant did not take the opportunity at this point to correct the details he provided in his entry interview if these were not accurate. (Footnotes omitted). 30 The documentation provided with the appellant's SHEV application were also given no weight as the IAA found that the appellant had "not explained how these documents support his application". 31 The IAA then summarised its findings as to the appellant's claims of political involvement as follows: Findings on UNP claims 25. I accept that there may be inconsistencies across an applicant's account of his or her experiences. I also accept that small inconsistencies would not of themselves necessarily bring protection claims into doubt. However, in the applicant's case there are a number of significant inconsistencies, outlined below, which lead me to seriously doubt the credibility of his claims to be involved with the UNP. • I do not accept the applicant's explanation regarding the omission of his UNP claims in his entry interview as he was directly asked about political involvement at that interview. In making this finding I have also had regard to the applicant's account at the entry interview that he was not threatened or told not to tell the truth. Again I note he was asked a direct question in this regard. I note that it was not until he was challenged at the SHEV interview about this omission that he made the statement he was frightened to advance the UNP claims earlier. • I do not accept that an electoral candidate would give results of the number of votes received that are not consistent with independent country information. In making this finding I give significant weight to the reliability of that country information. • I do not accept the applicant's explanation for not raising the Colombo hiding claims until the SHEV interview as being plausible. The claim to be in hiding is a significant one and a pivotal part of the applicant's account of his experience. I consider that if he had been in hiding as claimed he would have made this claim as part of his general account in his SHEV application and not wait until his interview to mention it. I also consider that he would have mentioned the Colombo address when he was asked on a number of occasions very direct questions about his residence. I find that he only advanced this claim when advised at the SHEV interview of the delegate's concerns about the genuineness of his fear. 26. Taking account of the inconsistencies outlined I am not satisfied that the events occurred and I [sic] that the applicant was involved with the UNP or stood as a candidate in the 2011 election. Nor do I not [sic] accept that he was threatened, tortured and kidnapped by the CID/EPDP and went into hiding in Colombo. As I do not accept that the applicant was involved or threatened as claimed, I also do not accept that people have threatened and harassed his family and visited the family home seeking the applicant's whereabouts. 32 In relation to s 36(2)(a) of the Act, the IAA found that the appellant did not meet the requirements of the definition of a refugee in s 5H(1). 33 In relation to s 36(2)(aa) of the Act (complementary protection), the IAA considered the appellant's submission made on 8 August 2016 that he would suffer "extreme and unreasonable humiliation" as a result of the appellant being criminally liable under Sri Lanka's Immigrants & Emigrants Act 1948 (Sri Lanka) for illegally departing Sri Lanka, an offence punishable by fine or by one to five years imprisonment. The IAA was not satisfied that there was a real risk the appellant would face "torture, cruel or inhuman treatment or punishment, or degrading treatment of punishment" if charged or convicted of this offence. The IAA noted that, as at the date of the IAA's decision, relying on a DFAT report dated 18 December 2015, "no custodial sentence has been imposed on illegal returnees" such that at most the appellant would be only at risk of facing a short period "remanded in custody" and subsequently being liable to pay a fine. 34 The IAA thus concluded that there was not a "real risk" that the appellant would suffer "significant harm" and did not meet the criteria under s 36(2)(aa).

The primary judge's reasons 35 The application before the primary judge was for judicial review of the IAA's decision. The appellant sought an order for a constitutional writ to be issued against the IAA, which the FCCA had jurisdiction to grant pursuant to s 476(1) of the Act. 36 Although three grounds were initially pleaded in the amended notice of appeal before the FCCA, the only ground of review put before the primary judge was ground 1 as follows, not including particulars (J [25]): The Immigration Assessment Authority (hereinafter referred as "the Authority" made a jurisdictional error by failing to consider whether or not to get new information under s 473DC of the migration Act 1958 (Cth) (Act) [sic] in the form of an interview with the Applicant. 37 The primary judge found that there was no jurisdictional error for the reasons set out at J [30] - [34]: 30. The Authority's reasons are not to be read with a keen eye for error. The Authority, in the second sentence of paragraph 5 of its reasons, in referring to the proposition that the Authority, under pt 7AA, does not conduct hearings is, in substance, a reflection of the same language found in the simplified outline in s 473BA of the Act, which refers in the third-last paragraph as follows: The Immigration Assessment Authority does not hold hearings and is required to review decisions on the papers that are provided to it when decisions are referred to it. However, in exceptional circumstances, the Immigration Assessment Authority may consider new material and may invite referred applicants to provide or comment on new information at an interview or in writing. 31. It is common ground that the outline to s 473BA of the Act is part of the Act to which the Court is entitled to have regard in relation to the construction of pt 7AA of the Act (see the learned Jagot J in Gheko Holdings Pty Ltd v The Chief Executive Medicare [2013] FCA 164 at [29] and [30]). The proposition that the Authority does not hold or conduct hearings does not reflect any misunderstanding or misconstruction of pt 7AA of the Act and is not a basis to infer that the Authority misunderstood or misconstrued the powers conferred under s 473DC of the Act. 32. In particular, the second part of the Authority's reasoning in the last sentence of paragraph (5) clearly identifies a correct understanding by the Authority of the powers under s473DC of the Act, including s 473DD of the Act. Further, as is apparent from the letter sent to the applicant explaining that the application had been referred for review and from the Practice Direction, there was a clear identification, for the benefit of the applicant, of limited circumstances in which the Authority could receive new information. There is no suggestion that what was contained in paragraphs 22 and 23 of the Practice Direction reflect any misunderstanding of a statutory provision. Paragraph 27 of the Practice Direction clearly acknowledges an ability to obtain new information or to comment on the same in writing. 33. Whilst the referral letter dated 2 August 2016 is not, of itself, part of the Authority's reasons, the Authority has expressly referred to the letter in response to the letter dated 2 [sic] August 2016, being the applicant's submissions. The Authority in that regard, referred to s 473DC of the Act, and identified that there was no new information in the submission. The reference in the Authority's reasons to the letter dated 8 August 2016 was clearly in the context of having sent the applicant the letter of 2 August 2016 with the Practice Direction, which included the provisions to which the Court has referred. The reference in the Authority's reasons to s473DC of the Act is consistent with the Authority correctly understanding and appreciating that it had a power under s 473DC of the Act to receive oral evidence and/or written comment. There is no warrant in the present case for finding that the Authority misconstrued s473DC of the Act or failed to appreciate that it had a power to receive oral evidence under s 473DC of the Act. 34. No jurisdictional error as alleged in ground 1 of the amended application is made out. (Emphasis in original).

Grounds of Appeal 38 The grounds of appeal in the present case (omitting any particulars) are framed as follows: 1. The [primary judge] failed to hold that the Immigration Assessment Authority (hereinafter referred as "the Authority") made a jurisdictional error by failing to consider whether or not to get new information under s 473DC of the Migration Act 1958 (Cth) (Act) in the form of an interview with the Applicant. … 2. The [primary judge] failed to hold that the Authority made a jurisdictional error by imposing an arbitrary standard of knowledge upon the applicant or making a finding of fact which was otherwise legally unreasonable … 3. The [primary judge] failed to hold that the Authority made a jurisdictional error by failing to apply requisite caution in relation to omissions by the Applicant at his entry interview or otherwise making a finding of fact which was legally unreasonable … 4. The [primary judge] failed to hold that the Authority's decision was legally unreasonable by reason of the Authority's failure to anticipate a change of government in Sri Lanka or that that government would pursue the policies the visa applicant alleges and it is pursuing. (Emphasis in original). 39 In the appellant's written submissions, counsel for the appellant confirmed that ground 4 was not pressed. Grounds 1, 2 and 3 repeat the grounds of the amended application before the primary judge. 40 However, importantly two matters arise, first as stated at paragraph [36] above, grounds 2 and 3 were abandoned by the appellant's then counsel before the primary judge. Secondly, as correctly conceded by the appellant's counsel at the hearing, the appellant's argument in ground 1 is actually in different terms to that raised below and for which leave is required. This is because ground 1 was framed before the primary judge to concern the purported failure on the part of the IAA to consider whether or not to get new information under s 473DC "in the form of an interview with the applicant". The appellant now argues that the IAA "did consider whether to exercise the power" but applied the wrong test. In particular, the appellant contends that the IAA conflated the test required under s 473DC with that required under s 473DD (once information had been obtained) for which "exceptional circumstances" are required. This was not argued below. 41 For the reasons that follow, I am not persuaded that leave should be granted to raise the new grounds of appeal (which comprise the entirety of the appeal).

Application for leave to rely on new grounds of appeal 42 As observed by Gibbs CJ, Wilson, Brennan and Dawson JJ in Coulton v Holcombe [1986] HCA 33; 162 CLR 1 at 7: It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at trial. If this were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish. 43 Leave to argue a new ground of appeal that was not raised before the primary judge should only be granted if it is in the "interests of justice" to do so (O'Brien v Komesaroff [1982] HCA 33; 150 CLR 310 at 319) and where there is "no injustice" to the other parties: Summers v Repatriation Commission [2015] FCAFC 36; 230 FCR 179 at [93] - [94]. 44 As observed by the Full Court in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 at [48], notably in 2004, the practice of raising arguments for the first time on appeal "has been particularly prevalent in appeals relating to migration matters". The practice continues and is one which undermines the fundamental principle identified by the High Court in Coulton. 45 Such a principle is not offended where a new meritorious point is advanced and there is no real prejudice arising. However, where there is no adequate explanation for the failure to advance the point below, particularly in a case such as the present one where the appellant was represented and expressly abandoned the grounds (as with respect to grounds 2 and 3) and there is doubtful merit to the new ground (regarding the question of materiality arising with respect to ground 1, considered further below), leave should be refused. There is no justification in these circumstances for permitting the new proposed course. 46 The appellant referred to the reasoning of Markovic J in BKR16 v Minister for Immigration and Border Protection [2019] FCA 708 at [50] - [53], regarding the non-exhaustive factors which may be taken into account when considering whether to grant leave, including as identified by Madgwick J (with whom Conti J agreed) in NAJT v Minister for Immigration & Multicultural and Indigenous Affairs [2005] FCAFC 134; 147 FCR 51 at [166]. The appellant emphasised the lack of any prejudice to the Minister and that the grant would not strain judicial resources. However, as Lander J stated in SZKMS v Minister for Immigration and Citizenship [2008] FCA 499 at [29], leave to introduce new grounds may be refused even in circumstances where the respondent on appeal would not be prejudiced by the granting of leave and stated, at [29]: Rarely will the Minister in an appeal to this Court from a migration judgment of the Federal Magistrates Court be able to point to any prejudice of the conventional kind. That cannot be a reason to allow a party to raise issues not raised in the Court below. In Iyer v Minister for Immigration and Multicultural Affairs (2001) 192 ALR 71, Gyles J said at 86: In my opinion, it is wrong to analyse a question which arises here as requiring a balancing of prejudice. Departure from the proper role of appeal in the court system is not simply a discretionary procedural decision. Furthermore, in public law matters like this, it can always be said that no actual prejudice apart from costs is suffered by the respondent compared with the prejudice to the appellant. It can easily be overlooked that there is a significant public interest in the timely and effective disposal of litigation. This aspect has particular force in this area of public law, where delays in dealing with applications for protection visas are obviously to be avoided if possible. In the present case, there was no bona fide ground of appeal from the primary decision and the litigation should have ended at that point more than 7 months ago. 47 A factor relevant to the exercise of discretion includes the absence of any explanation as to why grounds 2 and 3 were not pressed before the primary judge. While the same was conceded by the appellant, he submitted that the way in which he sought to run those grounds was slightly different. 48 The fact that the appellant changed legal representatives (who may have different ideas) is not itself an adequate explanation: NBMB v Minister for Immigration and Citizenship [2008] FCA 149; 100 ALD 118 at [33]; Patel v Minister for Immigration and Border Protection [2015] FCA 1061 at [20]; SZQHK v Minister for Immigration and Citizenship [2012] FCA 178; 125 ALD 458 at [65]; SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 at [38]. 49 An inference may be drawn that grounds 2 and 3 were not pressed in the Court below as a result of a forensic decision of the appellant's "experienced former Counsel". 50 This is so because as stated by Lander J in SZKMS at [30]: There are good reasons why this Court should not be made de facto the Court of original jurisdiction when sitting on appeal. Otherwise its role as an intermediate Court of Appeal will be undermined. The High Court should not be burdened by applications for leave to appeal from decisions of this Court which have not been reviewed. 51 For the reasons set out at paragraphs [53] to [95] below, I am of the view that the grounds of appeal have no merit. The weaker the merit of the proposed ground, the greater the need for other discretionary factors to be in the appellant's favour in order for leave to be granted: Han v Minister for Home Affairs [2019] FCA 331 at [15]. 52 Accordingly, for these reasons, I do not grant the appellant leave to argue any of his "new" grounds, which comprise the entirety of the appeal.

Ground 1 53 Ground 1 comprised: The [primary judge] failed to hold that the Immigration Assessment Authority (hereinafter referred as "the Authority") made a jurisdictional error by failing to consider whether or not to get new information under s 473DC of the Migration Act 1958 (Cth) (Act) in the form of an interview with the Applicant. (Emphasis in original). 54 Three issues arise with respect to this ground: first, whether the misapplication now articulated fell within the bounds of the articulated error in ground 1 as before the primary judge. For the reasons, stated at paragraph [40] above, I am of the view that the argument is new; secondly, whether there was a misapplication of the test required under s 473DC by the IAA requiring that there be "exceptional circumstances" when considering whether to grant an interview to provide further information; and thirdly, if so, whether this error was material. 55 As extracted in full above at [24], the appellant's then legal representative had submitted to the IAA the following: I trust that you will contact him if any concern arises before you make a decision on your IAA review. He is willing to attend to the IAA hearing. He trusts that the IAA will invite him to appear before the IAA to give further evidence and present oral evidence if only any issue/issues arise… 56 The appellant submitted that the error is evident from the last sentence of paragraph [5] of the IAA's reasons, as highlighted in the following extract: The submission noted that the applicant was willing to attend a hearing with the IAA and asked that the IAA contact the applicant if any concerns arose before making a decision. The IAA is a limited form of review and does not conduct hearings. The IAA can only consider new information in exceptional circumstances. The applicant was given an opportunity to discuss his fears on return to Sri Lanka at his SHEV interview. The submission has not advanced any exceptional circumstances that warrant the IAA getting new information, nor am I satisfied that any exceptional circumstances exist that warrant the IAA getting new information. (Emphasis added). 57 The appellant submitted that the IAA had conflated the tests in ss 473DC and 473DD (the conflation error), by applying the "exceptional circumstances" threshold from s 473DD (to consider new information) to the discretion by the IAA to either get new information (s 473DC(1)) or invite the appellant to give new information in writing or orally (s 473DC(3)), the latter being possible by way of interview. 58 The appellant submitted that the threshold of there being "exceptional circumstances" only applies after the "IAA has obtained or received new information" and is deciding whether it can consider the new information. The appellant cited no authority for this proposition but accepted, as identified by the Court, that a similar argument arose in EMJ17 v Minister for Immigration and Border Protection [2018] FCA 1462. 59 In EMJI7, a solicitor had written to the IAA suggesting that the department could access the applicant's application made in Nauru from the Nauru authorities: at [16]. The IAA affirmed the delegate's decision and when dealing with the applicant's submission that inquiries should be made in relation to the appellant's application in Nauru, stated "I am not satisfied that there are exceptional circumstances to justify the IAA getting new information regarding the applicant's application for protection in Nauru": at [17]. The appellant in that case had claimed that the IAA had "conflated the 'relevance' (s 473DC(1)(b)) of the request to 'get' new information with the need to satisfy itself 'that there are exceptional circumstances to justify considering the new information' (s 473DD(a)), thereby failing to consider if the request for the IAA to get new information 'may be relevant'": at [57] (emphasis in original). 60 In EMJ17, Thawley J found correctly, at [60(4)], that the discretion to get new information under s 473DC(1) does not expressly turn on whether there are "exceptional circumstances" within the meaning of s 473DD(a), which only arises when the IAA addresses whether it is prevented by s 473DD from considering the "new information" it has obtained. Further, at [60(7)], his Honour noted that the discretion under s 473DC(1), having regard to s 473DC(2) and the statutory scheme, permits the authority "to decline to exercise the discretion to get information because the circumstances were not perceived to be sufficiently unusual or exceptional so long as it was understood that the section did not necessarily require that there be 'exceptional circumstances' within the meaning of s 473DD before the discretion to get new information was exercised" (emphasis added). 61 In the present case, the Minister submitted, consistent with the primary judge's reasons at J [30] - [33] (extracted above at [37]), that the IAA did not at any point state that it could not interview the appellant. Rather, the IAA stated at paragraph [5] of its reasons, consistent with the language of s 473BA, that the IAA "does not hold hearings". The Minister further submitted that the appellant is asking this Court to read the IAA's use of the word "hearings" at paragraph [5] of its reasons to mean "interviews" which would be a "strained view" of the IAA's reasons. I am of the view that this submission does not deal with the nub of the issue. 62 The Minister then submitted that there is a significant distinction between what the IAA states at paragraph [5] of its reasons (extracted above at [56]) being the IAA was not satisfied that "any exceptional circumstances exist that warrant the IAA getting new information" (emphasis added) compared to if the IAA had said it "cannot get new information in exceptional circumstances". In this regard, the Minister relied upon EMJ17 at [60(7)]. However, I am of the view that it is clear from the last sentence of paragraph [5] that the IAA misapprehended that there was a requirement that "exceptional circumstances" exist in order for it to be able to get "new information". 63 The Minister further relied upon the obiter dicta of Thawley J in EMJ17 at [63]: If the Authority had taken the view that the circumstances were not sufficiently unusual or exceptional to warrant getting the information, that may not have been erroneous (it is strictly unnecessary to decide that question) - the error lies in the Authority thinking the discretion in s 473DC(1) was confined by a requirement that there exist, at the time of considering whether to exercise the discretion to get new information under s 473DC(1), "exceptional circumstances" within the meaning of s 473DD(a) which would justify the Authority later considering the new information. That issue only arises once the Authority has got the "new information". The determination of that issue might depend in part on the nature and content of the material so obtained. It is not known what approach the Authority would have taken if it had not thought there was a requirement for it to be satisfied that, at the time it considered its discretion under s 473DC(1), there then existed "exceptional circumstances" within the meaning of s 473DD(a). (Emphasis added). 64 I am of the view that this was not the circumstance here, which is clear from the wording of paragraph [5]. I do not accept, given the clarity of the last sentence, that anything can be made of the fact that as the Minister contended "it is unusual or exceptional for there to be an invitation to provide new information or to attend an interview" nor that paragraph [5] of the IAA's reasons are to be read within the context of the legislative scheme, in particular the obligation under s 473DB(1) to neither accept or request new information nor interview an applicant. 65 However, whilst I accept the force of the appellant's argument that there has been a conflation error of the kind identified in EMJ17, in the present case, I do not accept that the conflation error was material for the following reasons. 66 It was submitted by the appellant that the IAA's error was material for two reasons: (1) Had the IAA not considered it could only exercise the power under s 473DC if there were "exceptional circumstances", it may have decided to obtain further information from the appellant. In this regard, the appellant stated that the IAA was concerned with the "credulity of the appellant's claims" and then relied on five alleged inconsistencies, of which two were abandoned at trial, raised by the IAA, which purportedly were not discussed by the delegate during the SHEV interview, or raised in the delegate's decision; and (2) If the IAA had exercised its power under s 473DC, the appellant may have provided further information, which could have persuaded the IAA that his claims were true. 67 In this regard, the appellant submitted that when the IAA decides whether or not it should get new information by inviting the applicant to an interview, this decision must be done "within the bounds of legal reasonableness", relying upon BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; 268 CLR 29 at [14] - [15]. This much may be accepted. 68 However, the onus is on the appellant to demonstrate materiality: MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 390 ALR 590 at [39]. For the reasons that follow, I am not persuaded that had the IAA not erred, there was a realistic possibility that a different decision could have been made. 69 Critically, the IAA considered a myriad of factual matters in its consideration of the applicant's claims for protection including the appellant's claims regarding participation in the UNP. The IAA found a number of inconsistencies in the appellant's claims about which there is no challenge on appeal. 70 Contrary to cases like CCR18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 9, the appellant did not identify specific evidence (for example, in that case, a Country of Origin Research and Information report) that was not before the delegate, being an essential factor required by s 473DC(1)(a). The entirety of the appellant's claim in the present case was that he be given an opportunity to address any potential unparticularised "concern" that the IAA may have as part of its deliberation. Further, contrary to the circumstances in CCR18, in the present case the appellant's then legal representative relied upon a DFAT report which pre-dated, rather than post-dated, the delegate's decision. 71 In the present appeal, the loss of the opportunity arising from the alleged conflation error was articulated to include the ability to address "a number of matters which formed part of the IAA's reasoning process which were not discussed by the Minister's delegate during the SHEV interview or raised as an issue in the delegate's decision". The appellant says he was so deprived of addressing five alleged "inconsistencies" which the IAA identified in its decision and had not been raised as an issue in the SHEV interview or the delegate's decision. 72 However, it is apparent from a close reading of the delegate's decision, that each of these "inconsistencies" were in fact identified in her decision and specifically addressed. The alleged inconsistencies concerning the appellant's claim that he stood as a candidate for the UNP in the July 2011 elections, and his answers during the entry interview that he was not involved with any political group, were addressed in paragraph [50] of the delegate's decision. The alleged inconsistency regarding the appellant's claim of being frightened to give an account of his political involvement was also dealt with at paragraph [50] of the delegate's decision. The inconsistency regarding the appellant's claim as to having hid in Colombo and his conflicting detailed account of his departure from Sri Lanka was addressed in paragraphs [58] and [62] of the delegate's decision. Lastly, the concern regarding "document fraud" in Sri Lanka was specifically dealt with at paragraph [59] of the delegate's decision. 73 Accordingly, the entirety of the underlying assumption (upon which the appellant's claim for materiality is based) that the appellant was unaware of these matters which the IAA took into account and was not "given an opportunity to comment" is incorrect. 74 The second reason advanced by the appellant that the conflation error was material, referred to at [66(2)] above, was largely dependent on the first reason. As set out above, the IAA relied on multiple reasons either which were not challenged on appeal or for which the challenge has not been accepted to find that the appellant's claims were not true. Accordingly, there was no realistic possibility that the IAA's decision could have been different had the conflation error not occurred. Leave to introduce this new argument should be refused on the basis of the limited merit of ground 1 as argued.

Ground 2 75 By ground 2, further refined during argument, to particular (e) as follows, the appellant claimed: The Authority was otherwise legally unreasonable as there was no relevant basis for considering the results stated in the country information to be correct and the Applicant's results for inconsistency with that information to be incorrect. 76 In this regard, the appellant referred to paragraph [18] of the IAA's reasons, extracted above at [29], concerning the IAA's acceptance of country information regarding the number of votes received by the UNP, which had caused the IAA to doubt the appellant's claim to have been a UNP candidate. The appellant submitted that the jurisdictional error of legal unreasonableness arose by the IAA purportedly making the following assumptions: (a) "The election results reported in the Global Tamil News were accurate"; and (b) "The fact that the appellant recalled a vote count different to that reported in the Global Tamil News indicated that his claim to have been a UNP candidate was not true." 77 The appellant further submitted that these assumptions constituted the error of legal unreasonableness by failing to consider the possibility that the news report was incorrect. The appellant elaborated on this submission at trial as follows: …the question for the decision maker in these protection visa matters is whether the applicant faces a well-founded fear which the High Court has said there's a real chance of persecution. And because it's a real chance or real possibility test that the decision maker must make a finding about, as Sackville J explained in Rajalingam, the… decision maker must sometimes take into account possibilities even if they're not findings on the balance of probability. 78 The appellant submitted that other possibilities for the inconsistency existed, such as the Global Tamil News being a "secondary source", that "[n]ot everything which appears in newspapers is accurate", there could have been "unintentional error" in relation to the release of the vote count to the newspaper, that "five years had passed between the election in July 2011 and the appellant's SHEV interview in May 2016" and that the appellant could have received incorrect information in relation to the vote count, such as the counting of "informal" votes. 79 The appellant then submitted that by virtue of the IAA giving "significant weight" to the information provided in the Global Tamil News and its failure to take into account these other possibilities, "the IAA believed that the vote count reported in the Global Tamil News was definitely correct, and the appellant's claim to have been a UNP candidate was not true". 80 In support of the submission that this error was legally unreasonable, the appellant submitted that: … a decision-maker's ultimate task in the context of protection visa claims is to determine whether the applicant faces a real chance of persecution if required to return to their home country, fact finding is not based on the civil standard of "balance of probabilities". Instead, a decision-maker must have no real doubt about findings of fact adverse to applicants. 81 In this regard, the appellant relied upon select passages from Minister v Rajalingam [1999] FCA 719; 93 FCR 220 at [60], [62] and [63]. However, those select passages must be understood in the context of his Honour's reasoning. Justice Sackville made clear, at [64], that despite the matters raised in previous paragraphs as to ensuring that the Tribunal was not foreclosed to reasonable speculation of future harm, the Tribunal was not required to make express findings as to whether alleged past events actually occurred and, at [65], that a court is not permitted when "exercising powers of judicial review to 'impute' to the RRT [Refugee Review Tribunal] (or other administrative decision-maker) a lack of conviction or confidence in its findings of fact, such as to warrant a holding that the RRT should not or could not have relied on those findings to hold that the applicant's fear of persecution was not well-founded". Such a course, it was said, would enter "the territory of merits review": at [65]. 82 Furthermore, the appellant's argument in Rajalingam was dismissed as the Court found, at [68] per Sackville J, that there was nothing in the Tribunal's reasons to suggest "it had any real doubt as to its findings of fact" which were made "after a detailed consideration of the facts and were stated without qualification or reservation" and in those circumstances, "there was no occasion for the RRT to have considered the applicant's chances of persecution by reference to possibilities it did not accept". 83 While Rajalingam was in the context of review by the Refugee Review Tribunal, its reasoning has been accepted to apply to the IAA as well as a Tribunal, albeit for the most part the Courts have rejected the merit of raising the "what if I am wrong?" test to those cases: See e.g. FVO18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 326 at [16] - [17] (citing SZMCD v Minister for Immigration & Citizenship [2009] FCAFC 46; 174 FCR 415 at [55] and [118] - [119] per Tracey and Foster JJ); AIT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1627 at [46] - [53]; AXX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 758 at [21] - [22]. 84 When considering the IAA's reasons, read in a practical common-sense manner and not to be construed with an eye keenly attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272, it is apparent that the IAA stated in clear terms the bases for its rejection of the applicant's claims of involvement with the UNP. Accordingly, like in Rajalingam, there was "no real doubt" which required the decision maker to take into account the possibility that they were wrong. Further, the IAA was prepared to accept the appellant's explanation for his inconsistent account between his entry and SHEV visa interviews in this respect. In addition, the IAA expressly acknowledged, at [25] of its reasons, that "small inconsistencies would not of themselves necessarily bring protection claims into doubt" but stated clearly, and logically, why certain "significant" inconsistencies led it to seriously doubt the credibility of the appellant's UNP claims. These findings were without qualification and reservation. 85 The IAA stated the Global Tamil News "is an independent media outlet operating in Sri Lanka". It is well settled that the choice and selection of country information are factual matters for decision-makers, and not for the Court: see NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11] - [13]. The IAA did not say that the Global Tamil News was "definitely correct" but rather at paragraph [18] of its reasons, the IAA stated, "[t]here is no reason to believe that the results reported are not accurate" (emphasis added) which is akin to it saying it had "no reason to doubt that those figures are correct". Further, the inconsistency between the news outlet's reported figures and the appellant's recollection was not the only factor that led the IAA to reject the appellant's claim that he was a candidate for the UNP in the 2011 elections. It is not open here, as it was not open in Rajalingam, for the Court to find differently, such an intrusion would constitute merits review. Accordingly, there is no merit in ground 2.

Ground 3 86 Ground 3 concerns the alleged failure of the primary judge to hold that the IAA made a jurisdictional error by failing to apply requisite caution in relation to omissions by the appellant at his entry interview or otherwise making a finding of fact which was legally unreasonable. Whilst expressed in general terms, the ground specifically concerned the findings in [15] - [16] of the IAA's reasons, and those reasons were alleged to amount to jurisdictional error in the form of irrational reasoning. 87 Paragraphs [15] - [16] of the IAA's reasons were as follows: 15. At his SHEV interview on 9 May 2016, the delegate drew the applicant's attention to his failure to put forward the UNP claims in his entry interview or dealings with IHMS and she gave him an opportunity to explain this omission. The applicant stated that this omission occurred because in the entry interview he was told to give his claims briefly. I have had regard to the recording of the entry interview and I accept that the DIBP officer did ask the applicant to explain why he left Sri Lanka in one or two sentences. I accept this could account for the applicant failing to mention his UNP involvement in response to that question. However, the DIBP officer also asked the applicant, in a direct question, if he was involved with any political group to which the applicant responded no. Having listened to the entry interview I find there is no ambiguity in the [sic] either the question or the applicant's response. 16. In considering the veracity of the applicant's UNP claims I have had regard to the fact that he did not make these claims when he first arrived in Australia and I find his failure to do so damages the credibility of the UNP claims. I place significant weight on the direct question put to the applicant at the entry interview about political activity and his negative response. I do not accept that if he had genuinely been a candidate in the 2011 election that he would have responded in the negative when directly asked. (Emphasis added). 88 The appellant conceded that in relation to paragraphs [15] - [16] of the IAA's reasons, the delegate dealt with these issues at paragraph [50] of her decision. 89 The appellant submitted that the IAA erred by "failing to apply requisite caution" in relation to the appellant's omission of UNP claims at his entry interview and his negative answer to the question "Have you ... been associated or involved with any political group or organization?". 90 In this regard, the appellant referred to MZZJO v Minister for Immigration and Border Protection [2014] FCAFC 80; 239 FCR 436 at [56] in that "some caution should be exercised by decision-makers in relation to omissions by applicants of matters at entry interview" due to the circumstances in which the interview takes place. The appellant then contended that the IAA had committed jurisdictional error by: (a) not expressly considering any of the cautions recommended in MZZJO at [56] - [57]; and (b) placing "significant weight" at paragraph [16] of its reasons on the appellant's answer "No" to the question referred to at [89] above and then stating: I do not accept that if he had genuinely been a candidate in the 2011 election that he would have responded in the negative when directly asked. 91 First, it is notable that the Full Court in MZZJO ultimately found that the Tribunal did not err by relying on inconsistencies arising from information provided at the entry interview, the delegate's interview, and the Tribunal hearing and that no error arose only because the IAA took into account the inconsistencies in the appellant's evidence that arose when considering the evidence given at the entry interview: at [57]. Furthermore, in contrast to MZZJO, in the present case the appellant's entry interview did not occur soon after the appellant arrived but rather occurred three months after his arrival in Australia. 92 Secondly, it is clear that the IAA did exercise caution when accepting that the appellant's failure to raise his UNP claim at the entry interview could be attributed to the instructions to give a brief answer (at paragraph [15] of the IAA's reasons) and "that there may be inconsistencies across an applicant's account of his or her experiences" and that "small inconsistencies would not of themselves necessarily bring protection claims into doubt": at paragraph [25] of the IAA's reasons. 93 The appellant further contended that there was an inconsistency between the IAA's acceptance of the appellant's explanation for not referring to his UNP claim in the first question at the entry interview about his claims (at paragraph [15] of the IAA's reasons) and the IAA's adverse finding against the appellant for not referring to his UNP claim: at paragraph [16] of the IAA's reasons. This inconsistency was contended to amount to irrational fact finding. I do not accept this contention. As the extracted paragraphs [15] and [16] of the IAA's reasons above reveal, the IAA was prepared to make some allowance for the appellant when he did not refer to his UNP claims when asked a general question as to his reasons for leaving Sri Lanka, given he was told to be brief. However, the IAA stated clearly that there was a distinction between this omission (for which there was an explanation) and when the appellant was asked a direct question as to whether he was involved in any political group. It was open and not "irrational" for the IAA to find that "there is no ambiguity in the [sic] either the question or the applicant's response". 94 Furthermore, it is notable that this inconsistency (the appellant's failure to mention his UNP claim at the entry interview) was not the only factor that the IAA relied upon in concluding the UNP claim was not made out. Again, this goes against any claim of "irrationality". The IAA took into account the following: (a) contradictions between the appellant's evidence at the entry interview and his subsequent claims (at [15] - [17]); (b) "pivotal" claims that the appellant was hiding in Colombo for his safety were not mentioned in the appellant's SHEV application (at [19]); (c) the appellant's documentary evidence could not be given any weight because: (at [23]); (i) the appellant failed to explain how the documents supported his application or what they were; (ii) the originals had been lost; and (iii) that document fraud was prevalent in Sri Lanka according to DFAT. (d) the appellant failed to provide plausible explanations for not providing evidence and raising his claims earlier (at [24]); (e) the inconsistencies between the appellant's evidence and country information (at [18] and [25]); and (f) the IAA's concern that the appellant's SHEV claims were fabricated led it to also doubt the veracity of his entry interview claims (at [28]). 95 Accordingly, it was open to the IAA to consider the appellant's failure to raise the UNP claims at the entry interview in the context of its broader consideration of his claims and there is no merit in ground 3.

Conclusion 96 For these reasons, the appeal is dismissed with costs. I certify that the preceding ninety-six (96) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Raper.