3.3 Should leave should be granted to rely upon the ground not raised before the primary judge?
43 In support of its contention that leave should be granted to rely upon the new ground, the appellant submitted that:
he had an acceptable explanation as to why the ground was not raised below, namely, that he was impecunious, could not afford legal representation, and therefore was not in a position to raise the legal argument now sought to be advance on the appeal (relying upon the appellant's affidavit dated 27 July 2023);
there was little prejudice to the respondent because the respondent had been afforded an opportunity to advance fully considered and developed submissions in relation to the issues raised by the appellant's new ground; and
there would be significant prejudice to the appellant in refusing leave, because the judicial review application pertains to his application for a protection visa, which is a matter of considerable significance to the appellant.
44 The respondent accepted, as do I, the validity of each of these points. However, the respondent contends that leave to appeal should not be granted to rely upon the new ground because it lacks any apparent merit. I respectfully agree, for the following reasons.
45 First, the appellant's Further Amended Notice of Appeal does not identify any legal basis for its contention that the Authority's failure to consider s 473DC of the Act amounts to jurisdictional error. The Further Amended Notice of Appeal does not, for example, allege that any purported failure to consider s 473DC of the Act was legally unreasonable. Rather, the sole new ground of appeal merely states that:
The IAA failed to consider s 473DC of the Migration Act to get further information
…
The above matters [being particulars (a)-(e)] were specifically commented upon by the IAA in a negative manner contra to the [appellant's] claims, and affected the IAA decision to affirm the delegate's decision not to Grant him a protection visa.
The IAA could have sought further clarification of them from the Appellant, but chose not to consider exercising its discretion to do so. Had the IAA considered getting new information it may have granted the Appellant a protection visa.
The IAA's failure to consider getting new information amounted to jurisdictional error.
46 To the extent that the appellant contends that there is a general duty to consider the exercise of the discretion under s 473DC to get new information, that proposition squarely conflicts with s 473DC(2) of the Act: see also DPI17 at [39] (Griffiths and Steward JJ). As the respondent submits, much of the appellant's argument proceeds as if s 473DC displaces the general requirement for the Authority's review to take place on the papers. The appellant's contentions, if accepted, would require the Authority to engage in a wide-ranging inquiry into any new information which may have affected the Authority's assessment of the credibility of his claims. For the reasons outlined, that argument proceeds from a misunderstanding of the text and purpose of the statutory scheme in Part 7AA of the Act, and does not raise an arguable ground of jurisdictional error. In this respect, I respectfully agree with, and consider apposite, the observations of Yates J in CMP19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 634 at [78]:
The issue raised by the third question and the fourth question is not whether it was open to the Authority to seek further information, or whether it would have been reasonable for the Authority to do so. The question is whether it was legally unreasonable for the Authority not to seek the information in all the circumstances of the case bearing in mind the nature of its review function under Part 7AA of the Act. In other words, in not exercising the discretionary power under s 473DC(1) of the Act to seek that information, was the Authority acting unreasonably in the sense that, for example, its conduct lacked a rational foundation or an evident or intelligible justification, or was plainly unjust, arbitrary, capricious, or lacking in common sense?: CCQ17 at [51]. I am not persuaded that the Authority's non-exercise of that power was of that character.
47 Secondly, much of the appellant's case rests on the assumption that the Minister did not consider the exercise of the power under s 473DC of the Act. That argument appears to have been made merely because the Authority did not mention s 473DC in its reasons. I would not, however, be prepared to draw this inference. The mere failure to mention the exercise of a procedural power cannot, of itself, provide a sufficient basis on which to infer that the exercise of those powers was not considered. For example, in BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 268 CLR 29, Kiefel CJ, Bell, Gageler, Keane and Nettle JJ held (at [40]):
Given that the Authority was under no obligation to give reasons for its exercise or non-exercise of any procedural power, the mere failure of the Authority to mention the discretion conferred by s 473GB(3)(b) [of the Act] cannot support the drawing of an inference that the exercise of the discretion was not considered.
Those statements are equally apt to apply to the discretionary procedural power in s 473DC of the Act. As such, I do not consider that any arguable basis has been established on which to infer that the Authority did not consider the exercise of the power under s 473DC of the Act.
48 In this regard, the Authority's decision indicates at least an awareness of the power under s 473DC. At [4], the Authority records that it would "proceed to make a decision on [the appellant's] case on the basis of the information sent to the IAA by the department unless the IAA decided to consider new information" (emphasis added). As I have noted, the Authority's power to consider new information is reposed solely in s 473DC. Based on its stated reasons, the Authority therefore appeared cognisant of, and considered, the possibility of obtaining new information under this provision. In those circumstances, it could not be inferred that the Minister did not consider the exercise of the power under s 473DC.
49 Thirdly, and in any event, none of the five particulars relied upon by the appellant disclose any arguable jurisdictional error.
50 Particular A impugns the Authority's finding concerning the reliability of the appellant's evidence about when the harassment and torture of his father commenced. At [22], the Authority states that, "in his written application the [appellant] said this [harassment] occurred after his release from detention" in 2010, whereas "in the SHEV interview he said it occurred in the one and a half years after the bomb blast, which would cover the period from [redacted] 2007 towards the end of 2008". The Authority concluded that the appellant's "evidence of the timing of these events … [was] confused and contradictory" and "inconsistent" (at [22]).
51 The appellant challenged these findings, and submitted that his accounts as to the timing of his father's harassment could have been reconciled if the Authority had sought further clarification from him. In this regard, the appellant emphasised that, in the statement of claim before the Delegate, he had stated that "after I went into hiding, the Army continued to harass my father about my whereabouts" (emphasis added). The appellant submits that the Authority did not take cognisance of the words "continued to harass", which were consistent with the harassment of his father having commenced before 2010.
52 This submission cannot, with respect, succeed. First, paragraph [5] of the Authority's decision expressly refers to the appellant's claim that "the army continued to harass his father about his whereabouts". As such, it cannot be inferred that the Authority overlooked this aspect of his claims as stated in his original written application when finding that his account was "confused and contradictory" (at [22]).
53 In any event, as the respondent contends, credibility findings are quintessentially findings for the Authority which will ordinarily lie squarely within its jurisdiction. There may be circumstances where an error in the assessment of credibility will constitute a jurisdictional error: Maan v Minister for Immigration and Border Protection [2017] FCA 906 at [45] (Charlseworth J). An adverse finding of credit may give rise to a reasonable apprehension of bias: SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 (at [31] (Flick J)). So too may an irrational or illogical credibility finding amount to jurisdictional error: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 at [40]-[44] (the Court). Yet the appellant makes no claim that the Authority's adverse credit findings gave rise to a reasonable apprehension of bias or were legally unreasonable, such as by reason of lacking a "rational foundation or an evident or intelligent justification" or being "plainly unjust, arbitrary, capricious, or lacking in common sense": DPI17 at [38] (Griffiths and Steward JJ). Particular A therefore does not raise any arguable jurisdictional error in the Authority's decision.
54 Similar difficulties attend Particulars B to E of the ground of appeal. Particular B impugns the Authority's finding that the appellant provided "confused, and contradictory" evidence about how he was identified at the checkpoint crossing (at [19]). The appellant suggests that this confusion could have been clarified through a further interview with the appellant. However, for similar reasons as those just outlined, this argument lacks any reasonable prospects of success. In particular, s 473DC of the Act does not impose an obligation on the Authority to undertake an interview merely because it proposes to make an adverse finding as to the appellant's credit on a particular issue or otherwise: ABT17 at [24] (Kiefel CJ, Bell, Gageler and Keane JJ).
55 Particular C contends that the Authority failed to consider getting further details of why the appellant needed a Sri Lankan drivers licence and the context in which he obtained the licence, challenging the Authority's finding that the appellant "has not provided any further details as to how he obtained this document" (at [24]). The Authority considered this issue in raising a concern as to "why the [appellant] would have needed an official drivers licence at that time", particularly given the appellant's claim that he was avoiding the Sri Lankan authorities at the time (at [24]). However, the purported error alleged by the appellant in this regard is merely that the Authority "could have easily cleared its concerns" if it had asked the appellant for further information. For the reasons just outlined, even if that is so, it would be insufficient to establish jurisdictional error. As the respondent submits, no reason is given as to what made the failure by the Authority to seek clarification of its concerns legally unreasonable.
56 Particular D challenges the Authority's finding that "on the evidence I am not satisfied the [appellant] could not pay a fine" if he were returned to Sri Lanka (at [49]). Those findings were made in the context of findings that the appellant's family were "wealthy" (at [39] at [41]). The appellant submits that "these concerns may have been capable of being answered by the Appellant if he had been asked". Again, even if this is so, for the reasons outlined it cannot suffice to establish jurisdictional error. No reasons are given as to why this failure to make further inquiries of the appellant could be characterised as legally unreasonable. It bears repeating that s 473DC of the Act does not impose an obligation on the Authority to undertake an interview, merely because it proposes to make an adverse finding as to the appellant's credit on a particular issue: ABT17 at [24] (Kiefel CJ, Bell, Gageler and Keane JJ).
57 Particular E challenges the Authority's concerns about the appellant's evidence of the bomb attack (at [15]). Specifically, it will be recalled that the Authority found that, if an incident of the magnitude of the bombing described by the appellant occurred, there would have been independent evidence of the event (at [15]). In this regard, the Authority found that there was no "apparent independent evidence" of the bomb attack (at [15]). The appellant contends that the Authority erred because it "did not appear to have undertaken any enquiries as to whether there was an incident". He likewise argues that the Authority "ought to have sought clarification of this point".
58 However, the appellant has not established a sufficient basis on which to infer that the Authority did not conduct any enquiries as to whether an incident occurred. The Authority's reasons merely state that there was "no apparent independent evidence" of the major event, and that there was "no publicly available reporting on the incident". Those statements do not disclose, one way or the other, whether the Authority itself undertook any independent research into this issue. Significantly, however, it is apparent that the Delegate undertook inquiries, given the statement in the Delegate's reasons that:
It was put to the [appellant] at interview that no support country information was located in relation to the [bomb explosion] on [redacted] in 2007.
…
I have weighted this against the consideration that during this time, the Sri Lankan authorities maintained strict controls on the media and the reporting of such a bombing … could have been supressed, but overall I find it unlikely.
59 The footnote in the Delegate's reasons to the first proposition explained "sources consulted include CISNET, Home Affairs Library, government and non-government reports, domestic and International media outlets and Internet searches".
60 As such, irrespective of whether or not the Authority itself undertook any inquiries as to the existence of independent reports about the alleged bombing incident, it is apparent that the Delegate, whose decision was before the Authority, had researched the issue. This would suffice to provide a rational basis for the finding by the Authority as to the apparent absence of independent evidence of the event in question, even if the Authority did not conduct its own research.
61 In any event, the appellant fails to identify the basis of the Authority's alleged obligation to undertake further inquiries as to the bombing incident. Nor has the appellant identified any basis on which to suggest that it was legally unreasonable for the Authority to have failed to do so. Accordingly, there is no arguable jurisdictional error made out by this particular.
62 Fourthly, the appellant, in oral submissions, contended that the Authority had failed to engage in an active intellectual manner with the material before it. That contention was not developed in oral submissions. Presumably, the reference to an active intellectual engagement with the material refers to the decision Tickner v Chapman [1995] FCA 987; (1995) 57 FCR 451, in which each of Black CJ, Burchett J and Kiefel J spoke of an "intellectual process" required by the statutory scheme at issue in that case (462 (Black CJ), 476 (Burchett J) and 495 (Kiefel J)). However, the Authority's reasons did not indicate any apparent lack of active intellectual engagement with the material before it: see also DVO16 v Minister for Immigration and Border Protection [2021] HCA 12; (2021) 273 CLR 177 at [77]-[78] (Edelman J). To the contrary, the Authority clearly identified the appellant's claims for protection, and addressed those claims in turn.
63 Finally, in written submissions, the respondent raised a materiality issue. Because the ground of appeal lacks any reasonable prospects of success, it is not necessary to consider that issue.