Ground 2
66 By ground 2, the appellant contends that the Authority erred by failing to consider whether the referred applicant had satisfied it that the new information was not, and could not have been, provided to the Minister before the Minister made the decision under s 65 (s 473DD(b)(i)) or 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 (s 473DD(b)(ii)).
67 It was common ground that the principles concerning the approach the Authority must take in its consideration of new information under s 473DD has been authoritatively stated by the High Court in a number of recent judgments, including Plaintiff M174 and AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; 269 CLR 494. In AUS17, a plurality of the High Court opined (at [11]) that the Authority must assess the new information against criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) before considering the criterion specified in s 473DD(a). If neither of the criteria specified under s 473DD(b) are met, the Authority is prohibited from taking that new information into account. If either or both of the limbs specified in s 473DD(b) are met, they must be taken into account in the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a). The Authority's non-performance of this procedural duty is "not inaccurately characterised as a failure to take account of a mandatory relevant consideration in the purported application of the criterion in s 473DD(a)": (at [12]). Notably, the decision in AUS17 post-dates the Authority's decision.
68 For the following reasons, I am of the view that this ground is made out.
69 The "new information" in question was contained in a submission of the appellant to the Authority dated 25 November 2017:
On the basis of paragraph 11 of the recent CAT report it is submitted that the applicant faces a real chance of Convention related persecutory treatment as in the past the applicant has been imputed with LTTE involvement / support, it must also be noted that the applicant's father was killed by the army. It would be unreasonable to give more weight to the 18 December 2015 DFAT report and not consider contents in the more recent CAT report which is reflective of the current situation in Sri Lanka which has been published by a reliable source.
(Emphasis added.)
70 The Authority dealt with this submission at [7] of its reasons:
The submission also makes the new claim that the applicant's father was killed by the Sri Lankan Army (SLA). The fact that the applicant's father was deceased was before the delegate however I consider that the claim that his father was killed by the SLA to be new information. The submission provides no information on the date or circumstances of his father's death and at no point in the arrival interview, the SHEV application or in the SHEV interview did the applicant claim that his father had been murdered by the SLA. The applicant stated at the arrival interview that his father died when he was one or two years old and when asked about the cause of his father's death stated only that "he died of an illness". In the SHEV application he stated that his father had "passed away" after he left for India in late 2010. He provided no information on the date or cause of his father's death although somewhat contradictorily he also stated in the visa application form that his father had died "in approximately 2001" (Question 42 of the visa application form) although I accept that the date of "2001" in Question 9 may have been a typographic error. At the SHEV interview, the delegate asked the applicant when his father had died and he replied that it had been "about two years ago" putting his father's death in approximately 2015. The delegate asked the applicant if he knew how his father had died and the applicant replied "no". The applicant was represented throughout the SHEV application process and his representative was given an opportunity to raise any additional claims or corrections to the applicant's evidence at the conclusion of the SHEV interview. The representative spoke at some length at the end of the interview but did not advance the claim that the applicant's father had been murdered by the SLA or that there was any uncertainty regarding the cause of his death. The applicant has not asserted that information about the death of his father at the hands of the army has only just come to light. Nor has he provided any details about the circumstances of his father's death. All of this leads me to question the veracity of the assertion now being made. The applicant has not pointed to any circumstances to warrant the consideration of such information, nor is it evident to me that there are any such circumstances. I am not satisfied that there are exceptional circumstances to justify considering the information.
71 The Minister submits that the limbs of s 473DD were met by the Authority in the following way. The Minister contends subs (b)(i) (the new information was not, and could not have been, provided to the Minister before the Minister made the decision under section 65) was met where the Authority observed that the fact of the appellant's father having been killed, as opposed to being deceased, was not advanced at all previously, and that the appellant "has not asserted that information about the death of his father at the hands of the army has only just come to light". The Minister notes that the appellant does not appear to take issue with this aspect of the Authority's consideration.
72 The Minister then submits that subs (b)(ii) was met where the Authority engaged with the three elements in this subsection being: whether the information is "credible personal information", whether the information was "previously known" to the Minister (Plaintiff M174 at [33]), and whether, had the information been known, it might have affected the consideration of the referred applicant's claims: Plaintiff M174 at [34]. The appellant accepts the Minister's characterisation that there are three limbs to be satisfied of; however, he contends that the Authority's reasons should not be construed as addressing all the limbs of s 473DD.
73 The Minister contends that these elements were met for the following reasons.
74 First, the Authority, when "question[ing] the veracity" of the appellant's claim, was assessing its credibility under s 473DD(b)(ii), which can be gleaned from the Authority's reasons: It noted that the submission did not provide information on the date or circumstances of his father's death, no further submissions were provided in this regard; the claim was inconsistent with earlier claims that his father had either died of an illness in 2001 (although it was accepted this date may have been a typographical error), 2010 or 2015; and where, in the SHEV interview, the appellant had answered "no" to the question of whether he knew how his father had died. The Authority had also noted that the appellant had not suggested that the information of his father being killed had only just come to light and so, on the Minister's contention, the Authority determined whether the information was credible as discussed in CSR16 v Minister for Immigration & Border Protection [2018] FCA 474 at [41]-[43]. The Minister submits that the fact that the Authority did not make an express adverse credibility finding is not a reason to find that the Authority did not engage with this factor, relying on DQI17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 106 at [49]-[50]. Rather, the questioning of veracity was a rejection that the claim had any merit.
75 Secondly, the Minister contends that even if the Authority did not, or did not adequately, address the question of whether the information was "credible personal information" it nonetheless engaged with s 473DD(b)(ii) by assessing whether the information was previously known and whether it might have affected consideration of the appellant's claims. This is because, as the appellant accepted, the Authority does not need to deal with all three limbs where one limb fails. The Minister further submits that while the Authority found that the information was not previously known to the delegate, the nature and quality of the information was too sparse and undetailed for it to affect consideration of the appellant's claims. Accordingly, as the Authority addressed the factors in s 473DD(b), it was not satisfied that there were exceptional circumstances to justify consideration of the new information and no error arises.
76 I do not accept the Minister's submissions for the following reasons.
77 I am of the view that, when the Authority's reasons are read as a whole, the Authority, in this state of mind, refused to admit the new information because there were no exceptional circumstances to justify its consideration under s 473DD(a) and critically, it did not make any finding directed to s 473DD(b), especially subs (b)(ii).
78 A review of this portion of the Authority's reasons reveals a number of things. No direct reference is made directly to s 473DD(b). I accept the Minister's submission, that despite the absence of direct reference, a reviewing Court can infer from the Authority's reasons that the requisite assessment has occurred, where the substance of the criteria prescribed by s 473DD(b) has been considered prior to a consideration as to whether "exceptional circumstances" exist for the purposes of s 473DD(a): APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23 at [79]. I also accept that the reasons for an administrative decision should not be construed "finely with an eye keenly attuned to the perception of error" (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 272) and the Authority is not obliged to give reasons for the exercise or non-exercise of a procedural power, such as ss 473DC or 473DD: BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; 268 CLR 29 at [16].
79 However, the content and structure of the Authority's reasons under the heading "Information before the IAA" is consistent with the appellant's contention that the Authority did not undertake the required approach.
80 First, the Authority chose to expressly identify, and also adopt the statutory language of the section with respect to the three forms of "new information" by reference to the s 473DD(a) criterion, at [4], [5] and [7]. By contrast, the Authority failed to make any reference to the s 473DD(b) criteria in [5] and [7]. Secondly, when dealing with the first of the claims for reliance on the "new information", at [4], the Authority first expressed its conclusion regarding the s 473DD(a) criteria and then stated, in a deliberate and separately emphasised way, "[i]n addition" that the applicant had not satisfied it that "the requirements of s.473DD(b)" had been met. Thirdly, when dealing with the imputation claim (extracted at [43] above), the Authority again expressly dealt with the s 473DD(a) claim but, like at [7], at [5] of its reasons, did not go on to consider expressly the s 473DD(b) claim, despite having done so at [4]. Fourthly, the Authority makes no reference, at [7], to, nor adopts any portion of, the statutory language from either ss 473DD(b)(i) or 473DD(b)(ii) in its reasons.
81 Further, contrary the Minister's urging set out above, none of the reasoning in [7] demonstrates clearly that the Authority rejected the new information by reason of the criteria in s 473DD(b). To the extent that it was urged upon me that the Authority when "question[ing] the veracity" of the appellant's claim was assessing the credibility of the information under s 473DD(b)(ii), I do not accept this submission, not only for the above reasons but also by reason of the following. I accept that there is a degree of overlap conceptually such that "veracity" could be directed to the word "credible" within s 473DD(b)(ii). However, as the appellant contends, the veracity of information and its probative value is also relevant to exceptional circumstances in s 473DD(a) and is equally capable of being seen as directed to exceptionality. Further, the reference to "the veracity of the assertion" arises where the Tribunal does not reject its veracity but only questions it. This again points to the Authority being concerned with the satisfaction of the "exceptional circumstances" limb and not the s 473DD(b) criteria. This view is fortified by what immediately follows this statement where the Authority states "[t]he applicant has not pointed to any circumstances to warrant the consideration of such information, nor is it evident to me that there are any such circumstances" (emphasis added). This use of the word "circumstances" twice in the sentence which precedes the conclusion of there not being any "exceptional circumstances" confirms this view.
82 I accept the appellant's submission that the better reading of [7] is that the sentence directed to veracity was using that concept in the sense of low probative value for the purposes of s 473DD(a). Nowhere in [7] or elsewhere in the reasons is there any analysis of whether it is credible personal information, or could have affected the consideration of the appellant's claims under subs (b)(ii). The lack of a subsequent credibility finding, after questioning its veracity, is indicative that this limb of subs (b)(ii) was not dealt with. As the appellant posited rhetorically, why would the Authority use the word "veracity" unless it was thinking about exceptional circumstances? If it was thinking about the credible personal information limb, it would be logical to use that language. Moreover, the Authority was not assessing whether the new information may have affected the consideration of the appellant's claims.
83 The Minister's reliance on AOU18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1095 is not of assistance. There Goodman J was well-placed to be able to infer that there had been the requisite consideration of the criterion in s 473DD(b)(i) because the Authority's reasons, in two places, adopted its statutory language: See [42].
84 Accordingly, ground 2 is made out. Having found error, I note that the Minister accepted that if this error was made out, it would be material. I accept the correctness of this view. The error is material.