DUR16 v Minister for Immigration and Border Protection

THE APPELLANT'S INTERLOCUTORY APPLICATION 4 The interlocutory orders sought by the appellant are first, that the Court receive further evidence on the appeal (r 36.57 of the Federal Court Rules 2011 (Cth)). The legislative power to receive further evidence is contained in s 27 of the Federal Court of Australia Act 1976 (Cth). The further evidence is described below. Secondly, the appellant seeks leave to argue "new points on appeal", being the new grounds of challenge identified in an amended notice of appeal. 5 The appellant relied on affidavit evidence of himself (3 April 2019), his solicitor, Mr Rasan Selliah of Rasan T Selliah & Associates (1 February 2019, 15 February 2019 and 29 May 2019), and Mr Dineshkumar Jaganathan who produced a transcript of one of the interviews of the appellant by the then Department of Immigration and Border Protection (1 February 2019). 6 The Minister relied on three affidavits, one of a solicitor in the firm of solicitors engaged by the Minister, Ms Anna Davyskib (6 February 2019), a second of an executive assistant employed by the firm, Ms Alison Faron (7 February 2019), and a third by a paralegal employed by the firm, Ms Danisha Amirtharaj (8 February 2019).

The New Grounds of Challenge on the Appeal 7 Before I identify the new points on appeal, I refer to two matters. 8 First, the Minister through his delegate issued a certificate under s 473GB of the Migration Act 1958 (Cth) (the Act) in relation to a document said to have been given to the Minister, or to an officer of the Department, in confidence and gave notice to the IAA under s 473GB(2) of the Act. The certificate was not disclosed to the appellant. In the Federal Circuit Court, the appellant submitted that the IAA had acted unreasonably in that it had not considered the exercise of its discretion in s 473GB(3) or, if it had considered the exercise of the discretion, that consideration was unreasonable. That argument was rejected by the primary judge who found that there was nothing on the face of the IAA's decision record to suggest that, in considering when and how to exercise its discretion under s 473GB(3) of the Act, it did so other than in accordance with law (at [36]). That conclusion is challenged in the existing Notice of appeal. One of the authorities relevant to this ground of appeal was the decision of the Full Court of this Court in BVD17 v Minister for Immigration and Border Protection [2018] FCAFC 114 at [37]. This decision was the subject of an appeal to the High Court of Australia and, at one point in this proceeding, I was asked to adjourn this proceeding pending the decision of the High Court. On 9 October 2019, the High Court delivered its decision in the appeal (BVD17 v Minister for Immigration and Border Protection [2019] HCA 34). The appeal was dismissed. The appellant will now have to indicate whether he seeks to pursue this ground of appeal. 9 Secondly, there is a ground in the existing Notice of appeal which the appellant accepts is a new ground of challenge to the IAA's decision and for which he needs leave to raise. It is a claim that the Federal Circuit Court erred in not finding that the IAA had committed a jurisdictional error in failing to consider the appellant's claims cumulatively. This will be considered with the other new grounds of challenge on the appeal. 10 The two new grounds of challenge in the proposed Amended Notice of appeal, and not in the existing Notice of appeal, which the appellant wishes to raise are as follows: New ground 1 - IAA finding at [26] rejecting appellant's claims concerning 2012 incident The appellant claimed that in August 2012 he was involved in a traffic collision with a bus and he suffered persecutory harm as a result ("the August 2012 Event"). The Immigration Assessment Authority ("the Authority") at [26] did not accept that the August 2012 Event occurred. The Authority fell into jurisdictional error in rejecting this claim by the appellant for the following reasons: 1. One reason the Authority rejected the August 2012 Event was because, according to an entry interview record prepared by an officer of the Department of Immigration and Citizenship ("the Department") ("the officer") while interviewing the appellant in January 2013, the appellant failed to mention the August 2012 Event in response to a question about why he left Sri Lanka. However, the Officer did not in fact ask the appellant during the entry interview why he left Sri Lanka, but instead falsely or misleadingly recorded in the entry interview record an answer by the appellant to this question (which was not asked) which did not refer to the August 2012 Event. The IAA, in reliance on the false or misleading entry by the Officer in the entry interview record, rejected the appellant's claim concerning the August 2012 Event. This involves a jurisdictional error in the Authority's decision. 2. Another reason the Authority rejected the August 2012 Event was because of what the Authority considered was a "contradiction" in relation to evidence the appellant allegedly gave during the entry interview that in September 2012 his uncle paid a people smuggler 10 lakhs to facilitate the appellant's travel to Australia. However, the appellant did not give this evidence at the entry interview. Instead, the Officer falsely or misleadingly recorded in the entry interview record that the appellant gave this evidence (but which he did not give). The Authority, in reliance on the false or misleading entry by the Officer in the entry interview record, rejected the appellant's claim concerning the August 2012 Event. This involves a jurisdictional error in the Authority's decision. 3. Prior to the Authority's decision, the appellant was not given an opportunity to respond to the Authority's concern that there was a "contradiction" between a matter stated by the appellant at his arrival interview in October 2012 and a claim made by the appellant in his SHEV application in March 2016. It was legally unreasonable for the Authority, prior to making a decision, to neither exercise its power under s 473DC of the Migration Act to invite the appellant to comment on the Authority's concerns, or consider whether to exercise such power. New ground 2 - Failure to consider two integers of appellant's claims 1. The appellant claimed on a number of occasions that he had been subject to extortion demands by members of the Sri Lankan authorities. The Authority did not deal with this integer of the appellant's claims. This is a jurisdictional error. 2. The appellant claimed he faced a real chance of harm by the Sri Lankan authorities because he was a Tamil. The appellant did not deal with, or did not properly deal with, this integer of the appellant's claims. This is a jurisdictional error.

The Further Evidence which the Appellant seeks to Adduce 11 The further evidence which the appellant seeks to adduce consists of a written departmental record of 12 pages, entitled "Arrival Interview" which records an interview between an officer of the Department and the appellant on 1 October 2012, a written departmental record of 15 pages, entitled "Entry Interview" which records an interview over the telephone between an officer of the Department and the appellant on 9 January 2013, and the affidavit of Mr Jaganathan producing a transcription of an audio recording of the entry interview. 12 There are similar questions in typewritten forms for the arrival interview and the entry interview and the handwritten answers to two questions in particular, are identical in content. Those questions relate to the appellant's reason(s) for leaving Sri Lanka and the means whereby he financed his travel to Australia. The transcript of the entry interview taken from the audio recording does not contain a direct question of the appellant as to the reason(s) he left Sri Lanka. 13 The appellant submits that on the basis of the further evidence and without a response from the Minister: (1) the written departmental entry interview is not an accurate record of the entry interview. The transcription attached to the affidavit of Mr Jaganathan is an accurate record of the entry interview; and (2) on the face of it, the person who completed the written departmental entry interview copied answers from the written departmental arrival interview. The appellant submits that, although there is no reason to doubt the accuracy of the written departmental arrival interview, there is no apparent reason why the person who completed the written departmental entry interview would copy answers from the written departmental arrival interview. 14 The significance of the above matters, according to the appellant, is as follows. The appellant's claims before the delegate and the IAA were based on a number of matters ranging from his status as a Tamil with an imputed Liberation Tigers of Tamil Eelam (LTTE) connection to his involvement in various incidents. One such incident, which I will call the "bus incident", occurred in August 2012 when, according to the appellant, the vehicle the appellant was driving was "rear-ended" by a bus. The police attended the scene and blamed the appellant for the accident and required him to pay a fine which he could not pay. It seems that this incident was the immediate cause of the appellant's departure from Sri Lanka. 15 The IAA considered that the appellant's failure to mention the bus incident at his entry interview was significant and reflected on his credit. The IAA said (at [21]-[26]): 21 The applicant has advanced claims of incidents in his SHEV application that he did not mention when interviewed by a Department of Immigration and Border Protection officer in his Entry interview on 9 January 2013. At his SHEV interview the delegate noted these omissions and the applicant responded that at the Entry interview he was asked to give his claim in a single sentence and he commented that I cannot tell all my life in one sentence". 22 I accept that at the Entry interview the applicant may not have provided a fully detailed account of his experiences; for example he mentioned driving for the elections although he did not mention being detained, and he mentioned being harassed while still a boy although he did not mention being detained with his cousins. 23 At the SHEV interview the applicant was asked an open question about why he left Sri Lanka and he responded that he had problems; that he was threatened with kidnap and was asked for money. The applicant was asked if there were any other reasons and he responded that there were "small issues". The applicant was then asked if he had any other issues and he stated that when he was working at the mill the paramilitaries came, were threatening and asked for rice. I consider the applicant was provided the opportunity to put forward his reasons for leaving Sri Lanka and his fear of harm. 24 The applicant was asked a number of open questions at the Entry interview about his experiences and a direct question about why he left Sri Lanka and I place considerable weight on the fact that the applicant did not mention the bus incident, which was the event that prompted his decision to leave Sri Lanka in 2012. 25 I have also considered the applicant's account regarding his inability to pay the sum demanded of him. The applicant stated in his application that neither his employer nor his uncle was in a position to pay the 10 lakhs demanded and the applicant left the country in fear of further harm for failing to pay this amount. I note this incident occurred in August 2012, yet in September 2012 the applicant's uncle paid a people smuggler 10 lakhs to facilitate the applicant's travel to Australia. 26 The failure to mention this incident, which he claims prompted his decision to leave Sri Lanka, at his Entry interview, coupled with the contradiction regarding his inability to raise the 10 lakhs, brings the claimed bus incident into doubt. I do not accept that the applicant was involved in an accident, that he was accused of being an LTTE cadre who deliberately tried to kill a busload of Sinhalese people, nor that the police demanded he pay 10 lakhs to the bus driver. (Emphasis added.)

Relevant events 16 There are a number of events which are said to be relevant by one or other of the parties to the appellant's application to adduce further evidence and to his application to raise new grounds of challenge to the IAA's decision. I will set these matters out in chronological order. 17 First, as I have said, on or about 12 February 2016, the appellant made his application for a SHEV. Prior to that time, the appellant had made an application under the Freedom of Information Act 1982 (Cth) for information relevant to his case and, on 22 December 2015, he received a disc which contained, among other records, the written departmental record of the arrival interview, the written departmental record of the entry interview and the audio recording of the entry interview. In his affidavit, the appellant swore that on receiving the disc, he put it to one side and did not think about it again. 18 Secondly, as I have said, the delegate refused the appellant's application for a SHEV and, on 17 November 2016, the IAA affirmed the delegate's decision. On 12 December 2016, the appellant filed an application for judicial review in the Federal Circuit Court. On 13 February 2017, the Minister filed a Court Book in the proceeding before the Federal Circuit Court. Subject to some exceptions not presently material, the practice is that the Court Book will contain the documents before the decision-maker. The Court Book did not and does not contain any of the documents or the audio recording relevant to the arrival interview or entry interview. 19 Thirdly, a Registrar of the Federal Circuit Court made orders on 11 April 2017 which, among other things, required the appellant to file any amended application for judicial review by 1 June 2017 and listed the matter for hearing on 25 October 2018. The appellant engaged a lawyer who prepared an amended application for judicial review in May 2017. 20 Fourthly, the appellant engaged a barrister "on the basis of direct access". A Further Amended Application for judicial review was prepared and it is dated 11 October 2018. The Federal Circuit Court gave the appellant leave to rely on this application and it was this application which was dismissed by the Court. 21 Fifthly, on 18 or 19 October 2018, the Minister filed a Supplementary Court Book in the Federal Circuit Court and this Court Book contained the written departmental record of the arrival interview and the written departmental record of the entry interview, but it did not contain the audio recording of the entry interview. The Court Book was tendered at the hearing on 25 October 2018, but the Supplementary Court Book was not tendered. 22 Finally, the appellant's present solicitor drafted the Notice of appeal dated 1 November 2018.

Analysis 23 The circumstances which are relevant to the issue of whether a new ground of challenge can be raised were discussed by the Full Court of this Court in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 (VUAX). The Court said at [46]-[48]: 46 In our view, the application for leave to rely upon the sole ground of appeal now raised should be refused. Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so: O'Brien v Komesaroff (1982) 150 CLR 310; H v Minister for Immigration and Multicultural Affairs; and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [20]-[24] and [38]. 47 In Coulton v Holcombe (1986) 162 CLR 1, Gibbs CJ, Wilson, Brennan and Dawson JJ observed, in their joint judgment, at 7: It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it 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. 48 The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. In our view, the proposed ground of appeal has no merit. There is no justification, therefore, for permitting it to be raised for the first time before this Court. 24 Shortly after the passage in Coulton v Holcombe (1986) 162 CLR 1 referred to by the Court in VUAX, Gibbs CJ, Wilson, Brennan and Dawson JJ said: In a case where, had the issue been raised in the court below, evidence could have been given which by any possibility could have prevented the point from succeeding, this Court has firmly maintained the principle that the point cannot be taken afterwards: see: Suttor v Gundowda Pty Ltd; Bloeman v The Commonwealth. (Footnotes omitted.) 25 In VUAX, the Court identified the explanation for the failure to raise the ground below, the apparent merit of the new ground and any prejudice to the respondent if the new ground is raised as matters relevant to whether the Court will permit a new ground of challenge to be raised on appeal. 26 I will deal first with those new grounds of challenge which do not involve the adducing of further evidence on appeal or any suggestion that the Minister would have adduced evidence in the Court below had they been raised in that Court. 27 The first of these grounds is in the existing Notice of appeal and is to the effect that the Federal Circuit Court erred in not finding that the IAA had committed a jurisdictional error in failing to consider the appellant's claims cumulatively. 28 The appellant submits that the IAA found that there was a chance or risk that he would suffer harm as a result of three matters which the IAA considered individually, but failed to consider cumulatively. The appellant submitted that the obligation on the decision-maker to consider the cumulative effect of individual claims is well-established and he referred to the decision of the Full Court of this Court in Minister for Immigration and Border Protection v DDK16 [2017] FCAFC 188. In that case, the Court said (at [33]): Counsel for the respondent adopted as correct the following submissions made on behalf of the Minister: Broadly speaking, it can be accepted that there is an obligation to consider the parts of a Visa applicant's claim for protection cumulatively. It can also be accepted that the same principles as to whether a visa applicant meets the criteria for protection as a refugee apply, by analogy, to the complementary protection criteria in s 36(2)(aa) of the [Act] [citing MZZUG v Minister for Immigration and Citizenship [2015] FCA 1151 at [47]]. The obligation to give cumulative consideration to a visa applicant's claims arises as part of the decision-maker's obligation to consider the case before them. In that context, a decision-maker is required to consider each integer of a visa applicant's claims, whether they are raised expressly or arise clearly on the material [citing Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 at 139 [7]]. Further, as part of the decision-maker's duty to address the case raised by the material before them, the decision-maker must consider the whole of the case put forward by the visa applicant [citing Khan v Minister for Immigration and Citizenship [2000] FCA 1478 at [31]]. There may be a combination of factors that create the profile of the person who meets (relevantly here) the complementary protection criteria [citing MZZUG at [47]], or causative factors that may not give rise to the relevant risk on their own, but may do so collectively [citing W352 v Minister for Immigration and Multicultural Affairs [2002] FCA 398 at [21]]. 29 The appellant accepted that there was no obligation to make a cumulative assessment where individual claims had been rejected as a matter of fact, or had been the subject of findings that they did not or would not lead to ongoing problems for the visa applicant were he or she to return to a receiving country. The appellant submitted that that was not this case. 30 The three matters upon which the appellant relied are as follows. First, the appellant relied on a finding by the IAA that extortion continues to happen. The IAA did make such a finding, but it is to be noted that immediately after this finding, the IAA found that the chance that the appellant would face instances of extortion amounting to serious harm, or violence or other harm, was remote. The IAA also found that there would not be a real chance that the appellant would suffer serious harm on return to Sri Lanka. Secondly, the appellant relied on a finding by the IAA that by reason of the fact that the appellant had departed from Sri Lanka illegally, he may be detained and questioned at the airport for up to 24 hours, be fined for breaching the Immigrants and Emigrants Act 1949, and may face a period of time held in prison. The IAA made this finding. However, the significance and extent of the finding is illuminated by earlier findings made by the IAA. These findings were as follows. As a returnee, it is likely that the appellant will be questioned by police at the airport and charged under the Immigrants and Emigrants Act 1949. As part of this process, most returnees are fingerprinted and photographed. Returnees are transported to the nearest magistrates court at the first available opportunity. Returnees may be required to remain in police custody at the Criminal Investigation Department (CID) airport office for up to 24 hours. The IAA found that in circumstances where a magistrate is not available before this time, such as a weekend or public holiday, returnees may be held at a nearby prison. Thirdly, the appellant relied on a finding by the IAA that as a person of Tamil ethnicity, he faces societal discrimination at a moderate level. The IAA referred to a Department of Foreign Affairs and Trade (DFAT) report to that effect and there is nothing in its reasons to suggest that it did not accept that assertion. 31 I am not satisfied that this new ground of challenge has reasonable prospects of success. The IAA was clearly aware of the need to consider relevant claims cumulatively. It did so in the context of its consideration of the appellant's claim for complementary protection (see para 55). Even if the appropriate inference is that it did not consider the three matters which the appellant identified cumulatively, I do not consider that it was under an obligation to do so. The harm said to follow from breaches of the Immigrants and Emigrants Act 1949 was short term. The position with respect to the threat of extortion was improving, a matter explained below. The reference to societal discrimination remaining evident in Sri Lankan society at a moderate level was a general finding and I do not think that it adds anything to the other findings. 32 Even if I am wrong and the ground is arguable, or reasonably arguable, I would not give leave to the appellant to raise it. It seems to me that the appellant had an ample opportunity to raise this ground before the Federal Circuit Court. As I have said, he filed three iterations of his Application for judicial review in the Federal Circuit Court and had the assistance of a solicitor or barrister in the case of two of those iterations. There is no explanation in the evidence as to why the point was not raised before the Federal Circuit Court. The only explanation appears to be that, unlike his previous lawyers, his present lawyers consider that the argument is worth advancing. 33 I turn now to Particular 3 in the New Ground 1. In his arrival interview, the appellant stated that he or his family paid 10 lakhs to travel to Australia. He provided further details by saying that his uncle paid 2 at the shore and 8 lakhs after 14 days. He then goes on to say that his uncle paid 8 lakhs altogether, 2 lakhs discount. There is a contradiction within this account between an alleged payment of 10 lakhs and an alleged payment of 8 lakhs. In his application for a SHEV, the appellant states that his uncle did not have 10 lakhs to give to him so that he could comply with the order given by the police officers. He goes on to state that his uncle had no option but to get him out of the country immediately and he made arrangements for one of the agents to take him out of Sri Lanka illegally by boat. The contradiction to which the IAA referred was the contradiction between a statement that his uncle could not afford to provide him with 10 lakhs in August 2012 so that he could comply with the order given by the police and yet was able to pay 10 lakhs to arrange for his departure from Sri Lanka in September 2012. The appellant submits that the IAA should have invited him to comment on the alleged contradiction by exercising its power under s 473DC of the Act. I consider that it is fair to say that this ground was all but abandoned by the appellant at the hearing in light of the decision of the Full Court of this Court in DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12; (2018) 258 FCR 551 at [72] and [78]. Nothing of substance was said about the ground at the hearing. In light of this authority, I do not consider this ground to be reasonably arguable. 34 In Particular 1 of New Ground 2, the appellant seeks to raise as a new ground of challenge to the IAA's decision the fact that he claimed on a number of occasions that he had been subject to extortion demands by the Sri Lankan authorities, but the IAA did not deal with this integer of his claims. 35 The appellant did claim that he had been the subject of extortion claims by the authorities in Sri Lanka. He did that in the course of his arrival interview and it appears that he did so in his SHEV interview with the delegate. In that interview, he claimed that he was frequently asked for money by the police during vehicle checkpoint stops and searches. He claimed that he was threatened by CID officers who wanted money from him, or they threatened to destroy him and his van. He claimed that the CID officers made threats over the telephone. Those threats were threats of harm if he did not pay them money. He claimed that the CID officers tried to extort him "many times". In addition, he appears at one point in his application for a SHEV to rely on the claim that the police demanded that he pay them 10 lakhs. 36 In its introductory summary of the appellant's claims at [11], the IAA referred to the appellant's statements to the effect that he fears he will be targeted by the authorities and paramilitary groups as he has been imputed with an LLTE profile, has left Sri Lanka illegally and claimed asylum. The IAA referred to the appellant's claim that he fears that he will be subject to ongoing extortion demands. 37 The IAA addressed the appellant's evidence that he had been harassed and threatened by paramilitaries when working as a driver for his uncle and at the mill. The IAA referred to extortion threats and said that the appellant's claim to have been the victim of such threats was plausible. The IAA noted that independent country information before it reported widely on extortion rings operated by various paramilitary groups, including the Eelam People's Democratic Party (EPDP). However, the IAA found that there had been a significant change in Sri Lanka since the appellant departed in 2012. The IAA was not satisfied that the appellant's fear of facing serious harm from paramilitary groups on return was well-founded. The IAA said that it placed significant weight on the improved security situation since 2012. It said that there were indications that the paramilitary groups had renounced their paramilitary activities, although DFAT was aware of credible reports that these groups continued to be active in criminal activity. The IAA noted that the EPDP was increasingly becoming part of the mainstream and won a parliamentary seat at the 2015 general election. It found that the authorities were taking steps to prosecute members of paramilitary groups for past crimes and the indications were that the police were pursuing crimes of extortion and related threats and kidnappings. It noted the credible reports to the effect that paramilitary groups are involved in criminal activities and it accepted that extortion continued to happen. The IAA then said this: However, the weakening of the paramilitary groups and their renunciation of paramilitary activities, their move into the mainstream and the prosecution of past members for violent crimes leads me to conclude that the chance the applicant would face instances of extortion amounting to serious harm, or violence or other harm, is remote. I find there would not be a real chance that the applicant would suffer serious harm on return to Sri Lanka. 38 The appellant accepts that the IAA addressed his claim of extortion insofar as it was carried out by paramilitary groups. However, he submits that it did not deal with his claims that the police and the CID were also responsible for extortion. At a prima facie level, that submission is correct, subject to one qualification. The qualification is that the IAA found that the police were pursuing crimes of extortion and related threats and kidnappings and that there was an improved security situation since 2012. This, it might be argued, suggests that the risk of extortion from any party was less than it had previously been. 39 There is merit in this ground and, even though it could have been raised earlier, I would give leave to the appellant to raise it. Other than an argument based on the need for finality which I have taken into account, there is no prejudice to the Minister if the appellant is given leave to raise this ground. 40 In Particular 2 of New Ground 2, the appellant claims that the IAA did not deal with his claim that he faced a real chance of harm by the authorities in Sri Lanka because he was a Tamil. The appellant submits that the IAA did not deal with, or did not properly deal with, this "integer" of the appellant's claims. 41 I do not think that this ground is reasonably arguable. The IAA's reasons indicate that it was aware of the claim and it made detailed reference to DFAT and United Nations High Commissioner for Refugees reports as to the risk of harm to Tamils from former LLTE areas. Having considered the evidence before it, the IAA said the following (at [48]): I am not satisfied that the applicant faces a real chance of serious harm on return to Sri Lanka as Tamil, or because of any perceived links with the LTTE. 42 Even if this is wrong, the appellant has provided no explanation as to why this matter was not raised before the Federal Circuit Court. 43 I turn now to the new grounds of challenge which involve the calling of further evidence. They are Particulars 1 and 2 of New Ground 1. As to Particular 1, the ground as formulated refers to false or misleading conduct by the officer who carried out the entry interview. Furthermore, in the appellant's outline of submissions, he submits that the evidence suggests the possibility of an improper practice by officers of the Department who conduct entry interviews. The practice was said to be the recording of answers to questions in the name of an applicant in an entry interview record when the officer did not, in fact, ask the applicant the questions and the applicant did not give the answers. It was submitted that, in those circumstances, there was a public interest in allowing the further evidence so that the Court could consider the matter. In his oral submissions, the appellant's counsel drew back from this somewhat because I think he recognised that his application to adduce further evidence was stronger if the further evidence did not necessarily call for a response from the Minister. An allegation of false or misleading conduct was likely to lead to a response, or at least a request for the opportunity to make a response. The appellant's counsel went so far as to suggest that Particular 1 could be restricted in that the nature of the conduct could be excluded as irrelevant. Another way of putting the point is as follows. The matter could be argued on the basis that the reason(s) the answers in the arrival interview were copied into the entry interview were irrelevant and the only relevant fact is that the IAA relied on answers given during the entry interview which were not, in fact, given. On this approach, intention, carelessness or fault would not be relevant to whether jurisdictional error is made out. Although this approach may be open as a matter of theory, I do not think that practically such a restriction would work. The significance of this conclusion is that if the further evidence is allowed, it would have to be on the basis that the Minister be given an opportunity to adduce further evidence in response. 44 In the ordinary case, an application to adduce further evidence will involve a consideration of whether, through the exercise of reasonable diligence, the evidence could have been adduced at the trial and whether it is likely that, had the evidence been produced at trial, it would have produced a different result. Counsel for the appellant suggests that the reasonable diligence aspect of the common law test was not a requirement under s 27 of the Federal Court of Australia Act. I do not think that the cases have gone this far (Moore v Minister for Immigration and Citizenship [2007] FCAFC 134; (2007) 161 FCR 236 at [6]-[7]; Sami v Minister for Immigration and Citizenship [2013] FCAFC 128; (2013) 139 ALD 1 at [7]). In any event, whether the evidence could have been obtained by the exercise of reasonable diligence is at least a relevant consideration. 45 It seems to me that it is very difficult to find that the further evidence could not, by the exercise of reasonable diligence, have been adduced in the Court below. I note the observations of Flick J in SZNSC v Minister for Immigration and Citizenship [2009] FCA 1436; (2009) 112 ALD 490 at [23]-[26] to which I was referred about the difficulties confronting applicants for refugee status. However, the appellant had the relevant material, save for a transcript of the audio recording of the entry interview, in December 2015. He had a migration agent and solicitor at that time, a solicitor or barrister in May 2017 and again in October 2018. The exercise which was eventually carried out in January and February 2019 could have been undertaken before the hearing in the Federal Circuit Court. 46 The second aspect of the test is whether the further evidence is of such relevance and weight that its admission would be likely to lead to a different result. The Minister pointed to some questions and answers in the transcript of the entry interview and submitted that there were some similarities with the written departmental record of the entry interview. There are two answers to this submission. First, there is no suggestion that the IAA did other than rely on the written departmental record of the entry interview. Secondly, the questions and answers are not sufficiently similar to suggest that it could be said that effectively the IAA did rely on questions and answers given at the entry interview. 47 The Minister submitted that, assuming the IAA erred in relying on the written departmental record of the entry interview, the error was immaterial in the relevant sense because the same questions and answers were given at the arrival interview and there is no suggestion that the written departmental record of the arrival interview is inaccurate. He pointed out that the High Court had recently confirmed a materiality requirement in Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 359 ALR 1 and Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 363 ALR 599 at [45]-[51] per Bell, Gageler and Keane JJ. The Minister submitted that, in the circumstances, it could not be said that the error as to which interview the questions were asked and the answers were given could have realistically have affected the result. The critical question was asked and the critical answer was given at the arrival interview. 48 For his part, the appellant referred to the differences between an arrival interview and an entry interview. He referred to the following passages in the reasons for judgment of Moshinsky J in Minister for Home Affairs v AYJ17 [2019] FCA 591 at [41]-[42]: In the present case, I consider that it was illogical or irrational in the sense described by Crennan and Bell JJ in SZMDS for the IAA to reject the respondent's claim concerning the death of his brother on the basis that he did not mention it at the arrival interview. First, the purpose of the arrival interview in this case was primarily to obtain details about biodata and travel to Australia; its purpose was not to obtain a detailed description of the respondent's claims. This is indicated by the introduction on page 1 of the form (which is to be contrasted with the "Important Information" set out on page 1 of the entry interview form); the structure of the form (divided into two parts, one dealing with biodata, the other with travel); the length of the form; and the limited space available for a response to question 21. Secondly, the respondent's response to question 21 (which asked, "Why did you leave your country of nationality (country of residence)?") was: "I was an officer with Police in Iraq + I was threatened by religious groups." In my view, this was a high-level summary of the respondent's claims and was capable of encompassing the respondent's claim regarding his brother's death. As set out in the delegate's decision, the respondent claimed that he was the real target of the bombing due to his employment as a police officer and, in particular, that he was a Sunni working in that field. In light of this, the respondent's response to question 21 was capable of encompassing the claim regarding the brother's death. In addition, I note that the respondent's response to question 21 in the arrival interview was repeated in the entry interview, where it served as the introductory sentence to a longer explanation of why he left Iraq. 49 The extent to which a decision-maker should rely on a failure to mention a particular incident during the course of an interview may be debated, but that is not the present issue. I accept that at a general level there are differences between the two types of interviews, but I am unable to see any material difference in terms of the significance of the relevant questions and answers. Whilst there might be good reason to investigate the reason there are similarities between the written departmental record of the arrival interview and the written department record of the entry interview, that is not a basis, or at least a sufficient basis, to allow the appellant to adduce further evidence on the appeal in circumstances where: (1) the Minister would have to be given the opportunity to file evidence in response; (2) it cannot be said that the evidence could not have been adduced at trial by the exercise of reasonable diligence; and (3) I am not satisfied that the evidence was likely to have led to a different result. 50 I reach the same conclusion in relation to Particular 2 of New Ground 1. The appellant added a refinement to the submission which does not appear in the proposed Amended Notice of appeal. It is a complaint that the IAA "cherry picked" the answer and that if it had chosen the answer insofar as it referred to 8 lakhs and a discount of 2 lakhs, there would have been no contradiction. The first difficulty with this submission is that it was not raised below. Secondly, it seems to me that even if one relied on the second part of the statement, the substance of the contradiction identified by the IAA remains.

Conclusion 51 For the reasons set out above, I dismiss the appellant's interlocutory application dated 15 February 2019, save and except that I give leave to the appellant to raise on the appeal the ground in para 1 under the heading, "New ground 2 - Failure to consider two integers of appellant's claims" in the document which is Annexure "A" to the affidavit affirmed by Mr Rasan Selliah on 15 February 2019. 52 The appellant should file and serve an Amended Notice of appeal within seven days. I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.