The reasons of the Authority
15 The Authority described the nature of the three documents relied upon as new information. No issue is taken with the description. It was set out at para 6 as follows:
Attached to the submission were copies of three documents: The first is a translated letter from the Colombo Criminal Investigation Department (dated 12 November 2015) to the local police requesting the applicant present at their office in respect of an enquiry. The second is a letter from a Justice of the Peace (dated 10 December 2015) in the applicant's area attesting that the applicant had been accused of helping the LTTE, was badly assaulted several times and that according to the applicant's wife, since his departure, police, army and unidentified armed men have been coming in search of, and threatening to harm, the applicant. The third is a letter from an attorney in Jaffna district (dated 15 February 2015) attesting that the applicant was forced to help the LTTE, and that due to this LTTE activity he arrested several times, detained, threatened and badly assaulted and that since his departure, the applicant's wife has been harassed several times and that she is subject to worsening threats.
16 For the appellant it was submitted that the Authority's description of the documents was no more than a recitation and did not reveal any consideration of the contents. Reliance was placed upon CQW17 for the submission that a restatement or bare description of documents does not reveal any consideration by reference to relevant matters of the kind required to form the state of satisfaction. However, I would distinguish the present case from an instance where there was simply a restatement. The way the documents were described by the Authority was to focus upon the key content of the documents that was relevant to the way the appellant had supported his application for a visa. The matters described were then deployed in what followed as the Authority considered matters that arose from the nature of the contents of the documents. Therefore, this is not a case where the Authority simply described the documents and did no more.
17 Having referred to those three documents the Authority said: 'I note that the applicant has never claimed that he was arrested, nor that his wife has been subject to threats'. That observation is plainly a reference to a matter bearing only on the third document. For the Minister it was properly conceded that was the case. It is an observation based upon the other records available to the Authority as to the claims made by the applicant to that time. It reflects an engagement with the content of the document in the context of the claims advanced by the appellant before the Minister for the purpose of addressing the question whether there were exceptional circumstances. No complaint is made about the correctness of the observation.
18 Further, the nature of the observation indicates that the Authority is considering matters relating to credibility of the content of the document. The Authority did not simply observe that the information was new. The way which the observation is expressed (namely, 'the applicant has never claimed') is the usual manner in which such a matter may be expressed when considering whether the information is credible or reliable.
19 In context, the fact that no equivalent observation is made about the other two documents does not establish that the Authority did not consider matters relevant to the credibility of those documents or the information within them. It indicates no more than a view by the Authority that no similar comment could be made about the contents of those other two documents. In other words, it indicates a view by the Tribunal that those documents were consistent with the appellant's accounts up to that time and therefore that was not a matter that weighed against their credibility.
20 Then the Authority dealt with other matters as follows in para 7:
The applicant claims these letters were not previously available to him when the case was presented to the delegate. While I am prepared to accept that the applicant may not have had these documents in his possession earlier, no explanation has been provided as to why he had not been able to obtain them earlier, particularly given they pre-date the delegate's decision by eight to eighteen months and all also predate the application. The referred material also does not show the applicant had indicated to the delegate that he was seeking to obtain further evidence, or indeed that his wife was being threatened or that he had previously been arrested.
21 These observations concern, at least in part, matters that would be relevant also to the question whether the second requirement had been met by reason of the terms of s 473DD(b)(i). This is significant because it is a further demonstration that the Tribunal is not excluding the consideration of information on the basis that it is only relevant to the second requirement and therefore is not to be considered on the question whether there are exceptional circumstances.
22 The Authority then concluded that that there were no exceptional circumstances to justify the consideration of the three documents.
23 So, the Authority has only considered, as to the three documents, whether they met the first requirement and has found that they do not. However, in doing so consideration has been given to material that would also be relevant to whether the second requirement is met. For reasons I have given adopting such an approach was consistent with the terms of s 473DD and did not indicate an incorrect legal understanding of how the provision applied.
24 For the appellant it was submitted that the consideration by the Authority had focussed only on the 'temporal issue' as to why the documents had not been provided earlier and there was a failure to engage with the question of exceptional circumstances beyond that aspect. In particular, it was submitted that the final sentence of para 6 was not a consideration of the credibility of the documents or the information within them. In my view, the Authority was not confining its consideration in the manner submitted. It was not limiting its consideration to whether there had been an explanation for delay. It was observing that the fact that one document raised matters that had not been advanced before and there was no explanation as to why the documents were not previously provided were reasons why exceptional circumstances had not been demonstrated. The reason those observations were significant because they were matters that affected the credibility of the documents and the information within them.
25 Therefore, the Tribunal was not confining its consideration in the manner submitted and was applying the appropriate legal approach. It is not for this Court to consider whether, applying that approach, it would be satisfied that there were exceptional circumstances or indeed whether there are other aspects that the court may bring to account in forming a view on that topic. It is the satisfaction of the Authority on which the qualifications to the prohibition on new information depend.