AKK18 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 49
•22 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AKK18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 49
File number(s): MLG 220 of 2018 Judgment of: JUDGE RILEY Date of judgment: 22 January 2025 Catchwords: MIGRATION – Immigration Assessment Authority – the Authority refusing to consider new information – whether the Authority considered whether the new information was capable of being believed – whether the Authority’s determination that the new information, a UNP membership card, was not genuine, was tantamount to determining that it was not capable of being believed. Legislation: Migration Act 1958 ss. 473DC, 473DD. Cases cited: ABH18 v Minister for Home Affairs [2020] FCA 620
ACO18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 463
CSR16 v Minister for Immigration and Border Protection [2018] FCA 474
DBX16 v Minister for Immigration and Border Protection [2021] FCA 238
FGI18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 57
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 (2020) 294 FCR 150; (2020) 171 ALD 477; [2020] FCAFC 159
Division: Division 2 General Federal Law Number of paragraphs: 29 Date of hearing: 9 December 2024 Place: Melbourne Counsel for the Applicant: Shahed Sharify Solicitor for the Applicant: Carina Ford Immigration Lawyers Counsel for the First Respondent: Kylie McInnes Counsel for the Second Respondent: No appearance Solicitor for the First and Second Respondents: Clayton Utz ORDERS
MLG 220 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AKK18
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE RILEY
DATE OF ORDER:
22 JANUARY 2025
Amended pursuant to r.17.05(2)(h) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 on 23 January 2025
THE COURT ORDERS THAT:
1.The application filed on
14 February 2019*30 January 2018*, amended on 16 May 2024 and further amended on 11 November 2024 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE RILEY:
INTRODUCTION:
This is an application for review of a decision made by the Immigration Assessment Authority. In that decision, the Authority affirmed a decision of a delegate of the Minister not to grant the applicant a Safe Haven Enterprise visa.
BACKGROUND
In his written submissions filed on 30 May 2024 and amended on 18 November 2024, the Minister provided the following background to this matter:
Background
3.The applicant is a citizen of Sri Lanka and is currently 45 years old. He first arrived in Australia as an unauthorised maritime arrival on 14 November 2012: Court Book (CB) 151.
4. On 23 November 2016, the applicant applied for the visa: CB 29-103.
5.On 5 April 2017, the applicant attended an interview with the delegate (the interview): CB114.
6.On 26 April 2017, the delegate decided not to grant the visa to the applicant: CB 151-164. The applicant’s application was referred to the Authority for review on 1 May 2017: CB 165.
7.On 17 January 2018, the Authority affirmed the delegate’s decision: CB 208-222.
Applicant’s claims
8.In his visa application, the applicant claimed to have joined the United National Party (UNP) in 2004. He claimed to have become actively involved in helping the UNP during election campaigns, particularly the campaign in September 2012. He claimed to have received death threats from men from the Mahinda Party shortly after the September 2012 election, but managed to escape: CB 71.
9.The applicant feared he would be killed by supporters of the Mahinda Party on return to Sri Lanka, because of his active involvement in the UNP, and he feared harm due to his Tamil race: CB 72.
10.The applicant also claimed to fear harm because of his illegal departure from Sri Lanka: CB 72.
The delegate’s decision (CB 151-164)
11.The delegate considered the applicant’s claim to be a member of the UNP but was only prepared to accept that the applicant was a UNP supporter: CB 154. In reaching this conclusion, the delegate relied on the applicant’s answers presented at interview: CB 153. In particular, the applicant did not demonstrate knowledge of the UNP or what it stood for; could not articulate why or how he became a member of the UNP; and did not have a good understanding of the results of the 2012 election despite claiming to have assisted the UNP with that election. The delegate also placed no weight on letters purporting to be from a local UNP politician because they appeared to contradict the applicant’s claims and could be easily forged: CB 153.
12.Based on country information and the applicant’s low-level profile as a UNP supporter, the delegate found it highly unlikely that the Sri Lanka Freedom Party had any interest in pursuing or harming the applicant based on his involvement in politics: CB 154-155.
13.The delegate also relied on country information to find that the applicant was not owed protection obligations based as a failed (Tamil) asylum seeker who departed illegally (CB 155-159) or based on his Tamil race or imputed political opinion of being a support of the Liberation Tigers of Tamil Eelam (CB 157-158).
The Authority’s decision (CB 208-222)
14.The Authority summarised the applicant’s claims (CB 210 [9]) and set out the relevant law: CB 211 [10]-[11] and 217 [38]-[39].
15.The Authority set out the applicant’s claimed activities with the UNP: CB 211-212 [13]-[14]. The Authority had ‘significant concerns’ regarding these claims: CB 212 [14]:
(a)The Authority was unconvinced by the applicant’s explanation of his claims at the interview. The Authority noted that the applicant was unable to state what the UNP stood for and he “struggled when answering questions directed at what it meant to be a member of the UNP and how that membership was acquired responding with ambiguous and unsure answers”: CB 212 [15].
(b)The two letters from the local Provincial Council were inconsistent with the applicant’s claims and evidence. The Authority had doubts regarding their genuineness and placed no weight on them: CB 212 [16].
(c)The applicant’s evidence in the interview that the UNP’s performance was “good” in the 2012 provincial election was inconsistent with country information that the UNP lost the vote at the provincial level and nationally. The applicant’s evidence was “inaccurate, imprecise and not even at a basic level of understanding from someone who claimed to have actively campaigned for a political party”: CB 212-213 [18].
16.Given the significant inconsistencies, errors and credibility concerns the Authority had regarding the applicant, it did not accept that he supported the UNP in the month preceding the September 2012 elections. The Authority did not accept the applicant had a profile or was involved in any activity political or otherwise that would have attracted the attention of the Sri Lankan authorities, the Mahinda party or anyone else. The Authority rejected the applicant’s claims to have been threatened as a fabrication: CB 213 [19].
17. Based on country information, the Authority was not satisfied the applicant was owed protection obligations as a Tamil male (CB 213-214 [21]-[24]), because of his mental health state (CB 214-215 [25]-[27], 217 [41]), or as a returned asylum seeker who departed the country illegally: CB 215-216 [28]-[35] and 217 [42]).
18. The Authority affirmed the decision not to grant the visa: CB 218.
MATERIAL RELIED UPON
The applicant relied upon:
(a)his further amended application filed on 11 November 2024 (“the application”);
(b)his amended written submissions filed on 11 November 2024;
(c)the court book filed on 28 November 2018;
(d)his bundle of authorities filed on 8 November 2024; and
(e)a further authority, ACO18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 463.
The Minister relied upon:
(a)his response filed on 26 February 2018;
(b)his amended written submissions filed on 18 November 2024;
(c)the court book filed on 28 November 2018; and
(d)his bundle of authorities filed on 4 December 2024.
GROUND 1
The first ground of review in the application was dismissed by consent at the final hearing on 9 December 2024.
GROUND 2
The second ground of review in the application is:
The Authority fell into error by making a substantive finding in relation to new information at the preliminary stage of decision-making.
Particulars
a.The Applicant provided new information to the Authority in relation to his membership of the UNP.
b.The Authority rejected considering this new information stating that the Applicant had “not satisfied me that the document is genuine” [8].
c.The correct test was whether the new information was capable of being believed, not whether it was definitively credible or not.
d.The error was material as it may have informed the determination of the Applicant’s claimed refugee status.
This ground concerns paragraph 8 of the Authority’s reasons for decision, which is as follows:
On 19 July 2017 the IAA received an email from the applicant’s representative attaching a scanned copy of a UNP membership card and translation. The membership card pre-dates the delegate’s decision. No explanation has been provided as to why this document could not have been provided before the delegate’s decision was made or why it is credible personal information. The document is dated 7 March 2004 and states that he is a member of the United National Party. It states the applicant’s name, address, N.I.C number, electoral division, who he was enrolled by, amount of $100 and the dates 2001-2005. At his SHEV interview the applicant said that he did not pay for membership of the UNP which is in contrast to the $100 displayed on the alleged membership document. I have taken into consideration that the applicant was not represented at his SHEV interview however he did have the aid of a migration agent in the preparation of his SHEV application and noting that the applicant’s claim that he was a member of the UNP is central to his protection claims he has not satisfied me that this document could not have been provided to the delegate prior to a decision being made. Considering the vague and inconsistent nature of the applicant’s evidence relating to the document he has also not satisfied me that the document is genuine and that it is credible personal information and I am also not satisfied that there are exceptional circumstances that justify considering this new information.
(emphasis added)
Subsection 473DC(1) of the Migration Act 1958 (“the Act”) provided that:
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.
Section 473DD of the Act provided that:
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.
In relation to this ground, the applicant said in his amended written submissions that:
17.It is settled law that in determining whether there are exceptional circumstances to justify considering new information under s473DD(a), the Authority must first consider the alternative criteria in s473DD(b).10
18.It is settled law that the decision to consider new information under s473DD is a separate and antecedent decision to the ‘ultimate’ decision of whether the Authority affirms or remits the delegate’s decision under s473CC of the Act. 11
19.Additionally, the decision whether to consider new information was described in CSR1612 as the ‘anterior stage of decision-making’. At this stage, the Authority must not make a s473DD decision based on whether the proposed new information would actually impact its decision, but whether it could do so.13
20.The anterior stage is followed by the ‘deliberative stage’ of decision-making where the Authority may substantively consider the new information admitted under s473DD, along with all other information before it, in reaching findings of fact necessary to determine whether to affirm or remit the decision to refuse the grant of a visa.
ERROR
21. In the present case, the Authority clearly made a substantive decision at the anterior stage of decision-making, finding that “he has also not satisfied me that the document is genuine”. 14
22.The alleged error is patently material, as it may have affected the Authority’s assessment of the interest of the Sri Lankan authorities in the Applicant.
FN 10:AUS17 v Minister for Immigration and Border Protection (2020) 384 ALR 196, [11] per Kiefel CJ, Gageler, Keane and Gordon JJ.
FN 11:CVS16 v Minister for Immigration and Border Protection [2018] FCA 951, [28]-[29] per Bromwich J.
FN 12:CSR16 v Minister for Immigration and Border Protection [2018] FCA 474, [41], per Bromberg J.
FN 13: Ibid [42].
FN 14: CB 210 [8].The Minister said in his amended written submissions on this point that:
35.CSR16 v Minister for Immigration and Border Protection10 does not stand for a broad proposition that the Authority will err if it makes any substantive finding in relation to new information in the course of assessing whether s 473DD is satisfied. The distinction between the Authority’s consideration of information at the s 473DD stage versus in the ultimate decision arises from the correct understanding and application of the s 473DD(b)(ii) requirement that the Authority consider whether new information is “credible personal information which was not previously known, and had it been known may have affected consideration of the applicant’s claims by the delegate.” When considering if information is ‘credible’, all that is required is the Authority’s satisfaction that:
…the new information is capable of being accepted by the Authority as truthful (or accurate, or genuine). It is only at the deliberative stage of its review that the Authority will be required to determine whether or not the “new information” is true. 11
36.The Authority will err if it goes beyond assessing whether the information is capable of being believed and instead determines that it is not actually true.
37.However, the difficulty with ground 2, is that “[i]nformation will not be credible, in the sense of “capable of being believed” if it is not genuine.” 12 A finding that a document is not genuine is a finding that the document is not capable of being believed, and is consistent with a correct understanding of the task required by s 473DD(b)(ii) of the Act. 13
38.The Authority’s finding at CB 210 [8] that it was not satisfied that the UNP membership card was “genuine” is a finding that the document was not capable of being believed. That finding does not exceed the relevant statutory task.
FN 10: [2018] FCA 474 (CSR16).
FN 11: CSR16 [2018] FCA 474 at [41] (Bromberg J).FN 12:DBX16 v Minister for Immigration and Border Protection [2021] FCA 238 at [114] (Kenny J).
FN 13:See eg Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 (2020) 294 FCR 150 at [84] (Mortimer and Jackson JJ) and FGI18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 57 at [28] (O’Callaghan J).
In DBX16 v Minister for Immigration and Border Protection [2021] FCA 238 at [114], Kenny J said:
In deciding that it was not satisfied that the arrest warrants were “credible” information, the Authority addressed the issue of their authenticity. The Authority was not satisfied that the warrants were “genuinely issued arrest warrants” because it did not accept the referred applicant’s account that the CID gave them to his family. It does not seem to me that the Authority erred in the way claimed by the appellant in his third ground. Information will not be credible, in the sense of “capable of being believed” if it is not genuine. Thus, the Court in BTW17 held that the Authority’s finding that the 2015 newspaper article was not genuine was a finding that the document was not capable of being believed: see BTW17 at [84] (Mortimer and Jackson JJ, with whom Besanko J agreed at [1]). In this case, the Authority was not satisfied that the arrest warrants were authentic: it was therefore not satisfied that the information in them was credible. The Authority did not determine that the documents were not credible based on any broader assessment of the applicant’s credibility arising from the review materials. It did not therefore “jump ahead”; rather, it considered whether it was satisfied the information was “credible” personal information for the purpose of deciding whether to depart from the primary rule, which limited its consideration to the review material provided to the Authority under s 473CB.
In Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 (2020) 294 FCR 150; (2020) 171 ALD 477; [2020] FCAFC 159 at [84], Mortimer and Jackson JJ said:
The second Authority’s invocation of country information about fraudulent documents is one of the indications that, in substance, it was making a finding that this information was not capable of being believed, rather than any final determination that the contents of the 2015 article were not true. The Authority begins and ends [15] of its reasons with findings doubting the genuineness of the document: that was, we find, its primary focus in its reasoning. On the facts and reasoning in this review, the finding that the 2015 newspaper article was not genuine was a finding that the document is not capable of being believed. …
In FGI18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 57 at [28], O’Callaghan J said:
The IAA did not need to engage in a “formulaic consideration” of s 473DD(b), and there is no error if it can be inferred from the IAA’s reasons that the relevant assessment against the s 473DD criteria occurred. See APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23 at [79] (Markovic J). The IAA was not obliged to use the precise words of the Act or legal tests, and in my view, its expression of “doubts” about the genuineness of the information was a finding that the information was not credible under s 473DD(b)(ii).
Essentially, the Minister’s argument was that, when the Authority said that the new information, consisting of a UNP membership card, was not genuine, the Authority was saying that the new information was not capable of being believed.
The applicant in oral submissions relied firstly on ABH18 vMinister for Home Affairs [2020] FCA 620 where Charlesworth J said:
12.In its written decision record, the Authority said that the information about the recent CID visit was not before the delegate and was “new information”. It nonetheless refused to consider the new information for the following reasons:
6.The applicant’s representative submits that the new information relates to matters that occurred only recently and could not therefore have been provided to the delegate before the decision was made. The representative also submits there are exceptional circumstances to consider the new information as the applicant was denied procedural fairness because the delegate breached sections 54 and 57 of the Act by not having regard to all the material before him and by not providing the applicant with an opportunity to provide comments on his perceived links to the Liberation Tigers of Tamil Eelam (LTTE). Having regard to the terms of Part 7AA of the Act I do not accept that the delegate breached either section 54 or section 57 of the Act.
7.The applicant does not state when the CID came to his home and asked about his whereabouts only that it occurred recently. On that basis I am prepared to accept that the new information could not have been provided before the date of the decision. However, I note the following about the new information. Firstly, the information provided by the applicant about the claimed visit by the CID is in the most general of terms. He claimed they wanted to know ‘the correct details’ about him and that he would be detained and arrested as soon as he returned. However, he does not state why he would be arrested and in my view, if he was of such interest to the CID, I would expect them to tell his family the basis for their interest and intention to detain and arrest him. Secondly and relatedly, the applicant did not leave Sri Lanka while under investigation or formal reporting conditions and the most recent interactions he claimed he had with the CID concerned his identification of a person wanted for theft. In the absence of any interest by the authorities in him personally in the intervening period, there would appear to be no basis for the sudden escalation of interest in the applicant. Thirdly, in the written statement submitted with his SHEV application, he did not claim that any member of his family had experienced interest from the authorities because of him either while he was living in Sri Lanka or subsequently. It is, in my view, inherently implausible that the Sri Lankan authorities would suddenly escalate their interest in the applicant, some five years later. I further note the coincidence of this claim being made one month after the delegate’s decision. The applicant has not satisfied me that s.473DD(b) is met nor am I satisfied that exceptional circumstances exist to justify considering the new information.
…
31.Read naturally, that part of the Authority’s reasons must be understood as involving a finding that the information about the recent CID visits was not “credible” for the purposes of s 473DD(b)(ii). In my view, the Authority’s reasoning amounts to a substantive conclusion that the claimed recent CID visits had not happened, and that they had been invented to overcome the delegate’s adverse decision. There could be no other reason for the Authority to “note” the coincidental timing of the claimed CID visits.
The applicant argued that ABH18 was analogous to the present case, in that concluding that the applicant’s UNP membership card was not genuine was a substantive conclusion made at “the anterior stage”, and thus constituted error. However, that submission is not consistent with DBX18 and BTW17, which I am bound to follow.
The applicant in oral submissions relied secondly on ACO18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 463, a decision of this court, which the applicant emailed to the Minister and chambers the night before the hearing. In ACO18, it was said that:
16.At Reasons [12]-[17] the Authority considered what it referred to as the information about “Leaving Sri Lanka”. The Authority said:
12.The new information was also that when leaving Sri Lanka, the applicant paid a bribe; the agent walked him through the airport and security and he had to go to a certain counter and was escorted by the agent onto the plane and met two other men in Malaysia who organised the visa. It was submitted that it would be plausible that the applicant was able to depart unimpeded using his passport, which may not have been genuinely issued, by bribing airport officials and the applicant would be at risk upon return.
13.I consider the applicant could have provided the information earlier, either in his statement or interviews, but he did not. It was information personal and known to him. I do not accept he did not have the opportunity at interview as he raised bypassing security at the airport. Further, he was asked if there was anything more he wanted to add but did not mention this. I consider the information does not meet s 473DD(b)(i).
14.I do not accept the information is credible as the applicant did not mention anything about departing illegally or through bribery in his arrival interview or statement. Further, in his application he stated he departed Sri Lanka legally. I consider if it were true, that he would have mentioned such a key claim earlier. Further, it is contrary to his claim in the application that he departed on his own passport legally. I am not satisfied the information meets s 473DD(b)(ii).
…
34.The Authority’s reasoning directed at this subsection is contained in Reasons [14]. While the applicant places emphasis on the first line (I do not accept the information is credible) as disclosing error, I consider instead that the clearest evidence that the Authority applied the wrong lens to the new information is the statement appearing later in that paragraph – I consider if it were true, that he would have mentioned such a key claim earlier.
35.This is a finding that self-evidently is concerned with the truth of the bribe claim and contextualises the first reference to “credible”. In other words, the Authority’s reasons are best understood as involving an appreciation that the word “credible” is synonymous with “truth” in the absolute sense, rather than capacity to be believed.
The applicant argued that ACO18 is analogous to the present case, where the Authority said that the applicant had not satisfied it that the UNP membership card was genuine. The applicant submitted that meant that the Authority had drawn a substantive conclusion at the anterior stage and thereby fell into jurisdictional error.
The Minister submitted that ACO18 was distinguishable, because, in that case, the Authority was considering whether a new claim was true, whereas in the present case, the Authority was considering whether new information, in the form of a document, was genuine, and therefore capable of being believed. I accept that submission.
In oral submissions in reply, the applicant grappled with the issue for the first time. He noted that, in DBX16, Kenny J said at [114] that:
… The Authority did not determine that the documents were not credible based on any broader assessment of the applicant’s credibility arising from the review materials. It did not therefore “jump ahead”; rather, it considered whether it was satisfied the information was “credible” personal information for the purpose of deciding whether to depart from the primary rule, which limited its consideration to the review material provided to the Authority under s 473CB.
The applicant orally submitted in reply about this passage that:
What her Honour is saying is, she’s showing how you can look at the error in a different way, which is, it’s a question of whether you jump ahead. And one indicator that you are jumping ahead is when you determine finally and stridently that something is not genuine by reference to other review material, because what Parliament intended was a lower test for admitting new information, and once all the information is before the decision-maker, then one considers all of that information together, but where there is new information at the anterior stage of decision-making, and you refer to other information, as the authority did in this case, which was what was said before the delegate for the SHEV interview, which is that he did not pay for the UNP membership, that is a critical distinguishing point between that case and this case, where Kenny J says:
The authority did not determine the documents were not credible based on any broader assessment ...
That did occur in our case. In our case, there was a reference made to other review material. It was not the case that the authority looked in isolation at the document and said, “Clearly, this is not genuine.” That is what the authority needed to have done for your Honour to be satisfied that it was saying it’s not capable of being believed.
In relation to BTW17, the applicant orally submitted in reply that:
In respect of BTW17, how I would distinguish that case with the case presently before your Honour, is that, again, that involved a much more detailed consideration of whether the new information was capable of being believed. If your Honour reads the extract there, you can see that the Authority is really grappling with the question of whether it’s capable of being believed. It uses words such as, “I find it difficult to believe, but for this reason, and for that reason, and this reason, it’s not credible personal information.”
… this is not what I would classify as a very clear case of a CSR16 error. However, it is one that can be distinguished from the cases that my learned friend refers to.
By way of rejoinder, the Minister submitted that:
… in relation to DBX16, my learned friend says the distinction there is that, well, he points to paragraph 114 where Kenny J said the Authority in that case did not determine the documents were not credible based on any broader assessment of the applicant’s credibility, and I took that submission to mean that if the Authority did assess documents based on credibility, that would indicate an error or a misunderstanding. The same thing occurred here. The Authority did not, for example, say, “I find the applicant not to be a credible witness, therefore I don’t accept that this document is genuine.” So, that sentence just doesn’t assist the applicant at all to distinguish the case.
The other submission my learned friend made was that the Authority needed to look at the document in isolation, that is, divorced from other review material, and to not compare it against other material when deciding whether the document was genuine. That is also somehow said to flow from Kenny J’s observations. But that is entirely inconsistent with what the majority of the Full Court said in BTW17. That was the one about the newspaper article where their Honours said that the three reasons given, including comparing the article against the applicant’s claims, led to a finding that it was not genuine and that that was not an overstepping of the test.
So, to the extent the applicant seeks to distinguish the cases by saying that in DBX16 the Authority there considered the information on its own and that doing anything else would be an error, that’s not borne out by the authorities. …
In the present case, the Authority did not, in refusing to consider the new information, make a “broader assessment” of the applicant’s credibility. The Authority specifically said:
Considering the vague and inconsistent nature of the applicant’s evidence relating to
the document he has also not satisfied me that the document is genuine …
Elsewhere in paragraph 8 of its reasons for decision, the Authority, entirely properly, set out the background of how the new information came to be before it. But in giving its reasons for refusing to consider the new information, the Authority relied solely on the “vague and inconsistent nature of the applicant’s evidence relating to the document”. The Authority in paragraph 8 of its reasons for decision most definitely did not make any findings about the applicant’s credibility generally.
The applicant’s submission that the Authority was obliged to consider whether the UNP membership card was capable of being believed in isolation from all the other material available on the review is inconsistent with BTW17. I do not accept that submission.
The applicant’s submission that BTW17 was distinguishable because, in that case, the Authority gave “much more detailed consideration of whether the new information was capable of being believed”. However, that is not a valid point of distinction. There is no obligation on the Authority to give long and detailed reasons for finding that new information is not capable of being believed. Some cases may lend themselves to long and detailed reasons; others may not. It is irrelevant whether or not the reasons are long and detailed.
I am not persuaded that the applicant has effectively distinguished DBX16 or BTW17. The application must be dismissed. I will hear the parties on the question of costs.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Riley. Associate:
Dated: 22 January 2025
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