Ground 2
19 The second grounds was as follows (as written):
1. His Honour the Federal Circuit Court Judge erred in not holding that the IAA (Immigration Assessment Authority) made jurisdictional error while applying the criteria specified in s 473DD of the Migration Act.
Particulars
In paragraph 5 of the IAA order it is observed that "The other new country information provided by the applicant is an extract from what appears to be a news article from Aijazeera dated sometime in 2017 and referring to the UN's statement about the tardiness of Sri Lankan authorities in prosecuting war crimes. The relevance of this extract to the applicant's application is not apparent and I am not satisfied there are exceptional circumstances to justify considering this new information".
The Aljazeera article was published on 4th March 20I7, much after the Delegate decision and is about the fact that UN raises concerns over continued widespread serious abuses including torture, arbitrary arrests, sexual violence and the worrying slow of Sri Lankan Authorities in addressing wartime crimes on LTTE suspects of Tamil ethnicity. The IAA has admitted that it is new information but it relevancy is "not apparent". The article is about UN report which affirms the continued abuse of LTTE suspects of Tamil ethnicity and confirms that it remains widespread. The observation of IAA stating that the relevance of the article is "not apparent" without giving any further reasons amounts to non application of mind. The case of the applicant is that he is an LTTE suspect and upon his return he will be tortured and this claim is buttressed by the matters considered in the article. The statement of the IAA in discarding the new information as not relevant amounts to violation of principles laid down in BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958 at 41 as all circumstances for relevancy was not considered.
Generally, consideration of whether exceptional circumstances exist will require consideration of all the relevant circumstances. That is because even though no one factor may be exceptional, in combination the circumstances may be such as reasonably to be regarded as exceptional.
20 The appellant made oral submissions in support of this ground. Those submissions related to his concern that the Authority had not properly considered his claims, that it had rejected his claims on the basis that there were no problems in Sri Lanka, when that was not true. As such, his submissions went to the merit of the Authority's decision and did not engage with the primary judge's reasons. DGS17 was also concerned that the Authority had referred to him as having come from the east of Sri Lanka, when he comes from the Northern Province.
21 I will address the Minister's oral and written submissions so far as necessary in the consideration which follows.
22 This ground appears to reflect the first of two grounds of review raised by DGS17 in the Federal Circuit Court, albeit that some of the particulars might more properly be characterised as submissions. The primary judge's decision to dismiss the second ground of review is not the subject of this appeal. The first ground of judicial review in the Federal Circuit Court was as follows (as written):
The Immigration Assessment Authority (IAA) made jurisdictional error in that it did not correctly interpret the term "exceptional circumstances" as required under section 473DD of the Migration Act in relation to additional information furnished by the applicant.
Particulars
The IAA around the middle of para 5 observes that "the other new country information provided by the applicant is an extract from what appears to be a news article from Aljazeera dated sometime in 2017 and referring to the UN Statement about the tardiness of Sri Lankan authorities in prosecuting war crimes. The relevance of this extract to the applicant's application is not apparent and I am not satisfied there are exceptional circumstances to justify considering this new information". The term "exceptional" means "unusual" or "out of ordinary" as interpreted in An v Minister for Immigration and Citizenship [2007] FCAFC 97; (2007) 160 FCR 480. Further even according to the IAA the Aljazeera article was published in 2017. The applicant came into possession much after the date of delegate's decision in March 2017. The article is about the war crimes and the callousness exhibited by the Sri Lankan Authorities which is a matter relevant to the decision-making. Hence it is a new information that should have been considered pursuant to Sec 473 DD(b)(1) of the Migration Act. The IAA's failure to consider this additional information resulted in miscarriage of justice.
23 In considering this ground, the primary judge (at J[6]) first noted that it alleged that the Authority had incorrectly interpreted the term "exceptional circumstances" under s 473DD of the Migration Act and set out its terms. It is useful to note that s 473DD occurs in the context of s 473DC. Those provisions are as follows:
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.
24 The primary judge (at J[7]) noted that this ground appeared to be based on the decision of White J in BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958; 254 FCR 221 (BVZ16), and that DGS17 relied on an earlier decision of the Full Court in An v Minister for Immigration and Citizenship [2007] FCAFC 97; 160 FCR 480, which was not a decision which concerns s 473DD. His Honour stated that the principles concerning s 473DD are relevantly summarised in AQU17 v Minister for Immigration & Border Protection [2018] FCAFC 111 (AQU17) at [13]-[14] and CMY17 v Minister Immigration & Border Protection [2018] FCA 1333 at [26] per Thawley J.
25 The primary judge noted the finding in Plaintiff M174/2016 v Minister for Immigration & Border Protection [2018] HCA 16; 92 ALJR 481 at [30] per Gageler, Keane and Nettle JJ.
26 The primary judge then found that this ground suggested that the new information in question was such that it should have been considered under s 473DD(b)(i), that is, it was new information which was not, and could not, have been provided to the Minister before the decision was made under s 65. His Honour said that, in other words, it was a submission that the circumstances of the new information were, or came within, the description of new information. The primary judge found the difficulty with that proposition to be that the legislation had left the determination of what are exceptional circumstances to the Authority, and the breadth of the term is such that it is difficult for the Court on judicial review to determine whether those circumstances are met. However, his Honour said that he also considered whether, "like was found by White J in BVZ16", the Authority took an overly narrow view of what was meant by "exceptional circumstances": J[9].
27 The primary judge then set out DR[4] (which considered the new claim) and DR[5] (which considered the two items of country information): J[10].
28 At J[11]-[12], the primary judge considered the approach taken by the Authority in DR[4]. That consideration is not the subject of the appeal, having regard to the particulars of the ground.
29 The primary judge dealt with the Authority's reasons at DR[5] in relation to country information at J[13] and found no error in the Authority's finding that one item predated much of the information before it and that the other item (which I take to be the Al Jazeera article) was not relevant to the DGS17's claims. On that basis, his Honour found that the ground was rejected.
30 It is not evident that the Al Jazeera article was provided to the primary judge. A copy of the Al Jazeera article was provided to the Court on the appeal.
31 The Al Jazeera article urges that war time atrocities (including the killing of thousands of civilians, mainly Tamils, towards the end of the war) be the subject of prosecution. While the article notes that the latest UN report expressed alarm that Sri Lankan security and police forces still reportedly committed rape and torture, and that cases of excessive use of force, torture, arbitrary arrests and failure to respect due process during arrests by police continue to be reported and that the lack of accountability risks derailing momentum towards peace, it does not, as asserted in the ground of appeal, "affirm the continued abuse of LTTE suspects of Tamil ethnicity". This article does not address risk to Tamils with, or suspected to have, links to the LTTE at all. The Authority's conclusion that the Al Jazeera article has no apparent relevance to DGS17's claims therefore appears to be correct leading to the conclusion that s 473DC was not satisfied. In that circumstance, the question of whether or not "extraordinary circumstances" existed should be moot and the ground should fail for that reason alone.
32 There was nothing in the appellant's 27 April 2017 submissions to the Authority which sought to establish that "exceptional circumstances" existed which would justify consideration of the Al Jazeera article. The Authority's finding that "exceptional circumstances" did not exist is unsurprising in light of its finding that the Al Jazeera article had no apparent relevance to DGS17's claim that he was at risk as a young Tamil with actual or suspected links to the LTTE.
33 While there are cases where a failure by the Authority to turn its mind to whether the "new information" was not and could not have been provided to the Minister before the decision was made under s 65 (s 473DD(b)(i)) or whether it is "credible personal information" which was not previously known that may have affected the consideration of the referred applicants claims (s 473DD(b)(ii)) in determining whether the Authority is satisfied that "exceptional circumstances" exist (s 473DD(a)), it is a misconception that they must always be considered. Nor is there a requirement to make an express finding under paragraphs (b)(i) and (b)(ii) for the purposes of considering whether "exceptional circumstances" exist under s 473DD(a): see AQU17 at [14] and [16]. As the Al Jazeera article neither addressed the issue of risk to Tamils who are, or might be suspected of being, linked to the LTTE, and the article did not relate to DGS17's personal circumstances, this is not a case where the assessment of whether "exceptional circumstances" existed would have been assisted by reference to the matters in s 473DD(b).
34 DGS17 has not established any failure by the Authority to consider all relevant circumstances (the need for which was recognised by White J in BVZ16 at [41]) in making its assessment of whether exceptional circumstances existed which would justify its consideration of the Al Jazeera article in assessing DGS17's claims.
35 I find no appellable error in his Honour's conclusion that the first ground of the judicial review application should be rejected nor do I observe jurisdictional error in the Authority's finding concerning the Al Jazeera article at DR[5].