APD18 v Minister for Home Affairs

[2024] FedCFamC2G 1225

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

APD18 v Minister for Home Affairs [2024] FedCFamC2G 1225  

File number:

MLG 320 of 2018

Judgment of:

JUDGE CHAMPION

Date of judgment:

19 November 2024

Catchwords:

MIGRATION – Protection Visa – Where the Authority did not consider new information – Whether the Authority made a jurisdictional error by imposing a higher standard for considering new information than s. 473DD(b)(ii) prescribed – Where the rejection of the new information as contrived as a matter of substance was a finding that the new information was not credible – Application dismissed

Legislation:

Migration Act 1958 (Cth) ss. 473DC, 473DD

Cases cited:

ABH18 v Minister for Home Affairs [2020] FCA 620

AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494; [2020] HCA 37

BTK19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 658

CSR16 v Minister for Immigration [2018] FCA 474

EEP18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2023] FCA 682

ELQ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 27

FGI18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 57

Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111; [2017] FCAFC 176

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 (2020) 294 FCR 150; [2020] FCAFC 159

Division:

Division 2 General Federal Law

Number of paragraphs:

66

Date of last submissions:

13 August 2024

Date of hearing:

13 August 2024 

Place:

Melbourne

Counsel for the Applicant:

Ms Bull

Solicitor for the Applicant:

Victoria Legal Aid

Counsel for the First Respondent:

Mr Hibbard

Solicitor for the First Respondent:

Mills Oakley

Second Respondent:

Submitting appearance, save as to costs

ORDERS

MLG 320 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

APD18

Applicant

AND:

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	JUDGE CHAMPION
DATE OF ORDER:	19 NOVEMBER 2024

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The Applicant pay the First Respondent’s costs of the proceeding fixed in the sum of $8,371.30.

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 CHAMPION:

WHAT IS THE ISSUE?

1. The Applicant, who applied for a safe haven enterprise visa provided “new information” in the sense of that phrase under Part 7AA of the Migration Act 1958 (Cth) to the Immigration Assessment Authority in the form of a statutory declaration and a counsellor’s letter. The statutory declaration contained new information as to his personal involvement with the LTTE and the counsellor’s letter contained new information as to the reasons he had not previously disclosed his personal involvement with the LTTE.

2. There was no dispute before me that the Authority correctly found that both the statutory declaration and the counsellor’s letter constituted new information within the meaning of s. 473DD of the Act.

3. The issue for decision is whether the Authority made a jurisdictional error in its application of s. 473DD in the exercise of its discretion not to consider the “new information” the Applicant provided to it.

4. The Applicant submitted that the Authority assessed “whether or not the information should be believed as opposed to whether it could be” believed. The Applicant submitted that the Authority in error thereby imposed a “higher standard of satisfaction” for considering new information than the criterion under s. 473DD(b)(ii) required (Cf. CSR16 v Minister for Immigration [2018] FCA 474,[43]).

5. The Applicant’s single ground of review was as follows:

   1.The IAA erred in its application of s 473DD to new material provided by the applicant.

   Particulars

   a.   Following the decision of a Delegate of the First Respondent, the applicant provided a further statutory declaration and a letter from his counsellor to the IAA for consideration.

   b. The IAA found that s 473DD applied to both documents and, under that section, refused to consider them.

   c.   The IAA’s application of this section to each document was incorrect and amounted to jurisdictional error.

6. I have decided that the Applicant has not proved that the Authority made a jurisdictional error in its application of s. 473DD.

7. My reasons follow.

   WHAT IS THE RELEVANT BACKGROUND?

8. The Applicant is a citizen of Sri Lanka.

9. On 27 November 2012 he arrived in Australia as an unauthorised maritime arrival. As a result, in due course, the Authority dealt with his application under the fast track process under Part 7AA of the Act.

10. In a first statutory declaration attached to his visa application, the Applicant claimed that his family had been involved with the Liberation Tigers of Tamil Eelam (LTTE). He made no claim at that stage that he had been personally involved with the LTTE. He claimed that in 2005 he had been abducted by the Sri Lankan Army (SLA) and the Karuna Group. Subsequently, the Applicant moved to Qatar for work. Later, when he returned to Sri Lanka, he claimed that the SLA and the Karuna Group searched for him. He then left Sri Lanka and came to Australia. The Applicant said that he feared harm if he were to return to Sri Lanka because of his perceived family association with the LTTE. He also claimed to fear harm because he was a Tamil and as a returnee asylum seeker.

11. On 1 June 2017 a delegate of the Minister refused to grant the visa.

    WHAT IS THE RELEVANT LEGISLATION AND WHAT ARE THE RELEVANT LEGAL PRINCIPLES?

12. Sections 473DC and 473DD govern how the Authority “gets” and “considers” new information under Part 7AA of the Act.

13. In AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494; [2020] HCA 37 at [2] the plurality described how the Authority performs its review function under Part 7AA by:

    “considering" the "review material" provided to it by the Secretary of the Department of Immigration and Border Protection at the time of referral "without accepting or requesting new information" save to the extent that the Authority "gets" new information from the referred applicant or some other person under s 473DC and goes on to "consider" that new information under s 473DD.

    [Footnotes omitted]

    As to new information the Authority must first consider whether one of the criteria in s. 473DD(b) is met and, second, consider s. 473DD(a)

14. In AUS17 the plurality explained at [11] that in applying s. 473DD it is necessary for the Authority first to determine whether one of the criteria set out in s. 473DD(b) is met and, second, to determine whether s. 473DD(a) is satisfied. New information obtained from the referred applicant is required to meet at least one of the additional criteria specified in s. 473DD(b) before there can be exceptional circumstances under s. 473DD(a). If neither criterion under s. 473DD(b) is satisfied the assessment under s. 473DD(a) is “redundant” (AUS17, [8], [11]).

    Section 473DD(b)(i) is a “factual inquiry” and s. 473DD(b)(ii) involves an evaluative inquiry

15. As the Full Court explained in Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111; [2017] FCAFC 176 at [105], s. 473DD(b)(i) is a “factual inquiry” and s. 473DD(b)(ii) involves an evaluative inquiry:

    For the reasons given by his Honour, including his references to relevant extrinsic material, we respectfully agree that subparagraphs (b)(i) and (ii) should be understood as referring to different kinds of new information. The former provision requires a factual inquiry as to whether or not the new information could have been presented to the Minister. The latter provision requires an evaluation of the significance of the new information in the context of the referred applicant's claims more generally…

    A bipartite and tripartite issue

16. Section 473DD(b)(i) is met if the referred applicant satisfies the Authority that the new information meets the “bipartite” description of information that was: (1) not before the Minister at the time the decision was made, and (2) “could not have been” before the Minister at the time of making the referred decision.

17. The criterion in s. 473DD(b)(ii) is “tripartite”: (1) the referred applicant must satisfy the Authority that the new information is “credible personal information”; (2) that it was not previously known; and (3) that it may have affected consideration of the referred applicant’s claims.

    Following the statutory pathway is a mandatory relevant consideration

18. A failure by the Authority to determine the purported application of the criterion in s. 473DD(a) “without first assessing that information against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and then taking the outcome of that assessment into account in its assessment against the criterion specified in s 473DD(a)” would be a “non-performance of the procedural duty”. The plurality in AUS17 said that the non-performance of the procedural duty could be accurately characterised “as a failure to take account of a mandatory relevant consideration in the purported application of the criterion in s. 473DD(a)” (AUS17, [12]).

    An evaluative judgment requiring restraint on judicial review

19. As the Full Court noted in  ELQ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 27 at [13] the need for the Authority to reach a state of satisfaction under each of s. 473DD(a) and (b) calls for “an evaluative judgment” on which “reasonable minds might differ” and “ [w]hile the evaluative judgment is not beyond review by the Court, a principled restraint must be adopted, lest the proper role of a reviewing court … be exceeded”.

    Whether the new information is credible requires an evaluation of whether the new information is “capable of being believed”

20. In Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17(2020) 294 FCR 150; [2020] FCAFC 159 at [75] Mortimer J (as she then was) and Jackson J said that in deciding whether to consider new information under s. 473DD the Authority is at a “procedural stage” and “deciding what the scope of the review material should be, and whether there should be a departure from the primary rule” that the Authority does not consider new information.

    A filtering mechanism

21. Bromberg J explained the criterion in s. 473DD(b)(ii) in CSR16 at [42]:

    The criterion is a filtering mechanism designed to separate information worthy of consideration at the deliberative stage from that which is not. In that context, the word “credible” is used in relation to information, not in the sense that the information is believed, but in the sense that the information is capable of being believed. It is only information that the Authority is satisfied is “evidently not credible” (VEAL v Minister for Immigration and Multicultural Affairs (2005) 225 CLR 88 at [17] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ) that fails to meet the credibility requirement imposed by the s 473DD(b)(ii) criteria.

    [Emphasis added]

22. Bromberg J explained that there is a difference between information which “is believed” and “information… capable of being believed.” If information was capable of being believed it passed through the filtering mechanism. Whether information was actually believed was a matter for the deliberative stage. Charlesworth J expressed the issue as follows in ABH18 v Minister for Home Affairs [2020] FCA 620 at [43]:

    What is required under s 473DD is a preliminary assessment of the information with a view to precluding consideration of that which is incapable of being believed …

    [Emphasis added]

    A low bar

23. In BTK19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 658 at [51] Perry J explained that whether new information is “credible” sets a “low bar”. Her Honour said:

    In order to reject new information on the ground that it is not credible, the Authority must find that the new information is not even capable of being believed; mere doubts about its reliability will not suffice.

    WHAT IS THE NEW INFORMATION?

24. After the delegate’s decision, the Applicant’s representative provided new material to the Authority. The provision of that material engaged s. 473DD as to whether the Authority ought to consider that new information.

25. At the time he provided the material, the Applicant’s representative submitted that it either did not have the character of “new information” or that the Authority ought to consider it as “exceptional circumstances” applied under s. 473DD(a). As noted, by the time the matter was before me, the Applicant accepted that the material had the character of “new information.”

26. The relevant “new information” was:

    (a)an undated second statutory declaration of the Applicant provided under cover of a letter of his representative, the Asylum Seeker Resource Centre (ASRC), dated 4 July 2017 which set out the Applicant’s personal purported “involvement” in the LTTE in addition to his family’s involvement in the LTTE (Statutory Declaration); and

    (b)a letter from the Applicant’s counsellor which provided an explanation that the reason that the Applicant had not earlier provided this information of his personal involvement in the LTTE was because he was “concerned that information provided to the DIBP may somehow become known to the Sri Lankan authorities” (Counsellor’s Letter).

27. The Applicant did not press his claim that there was a jurisdictional error as to how the Authority treated other “new information,” namely an ABC Report titled “ASIO rulings keep refugees in detention” and a photograph showing “scarring from bullet wounds” (Reasons, [15]). As a result, issues as to the ABC Report and the photograph may largely be put to one side.

28. The Statutory Declaration set out information as to the Applicant’s purported personal involvement with the LTTE. The Authority found that the Statutory Declaration was “new information” because the Applicant had only provided information to the delegate as to involvement of other family members with the LTTE, not his own personal involvement.

29. The Authority noted that the Counsellor’s Letter post-dated the delegate’s decision and referred to counselling sessions which commenced after the date of the delegate’s decision. The Authority set out at [7]:

    I am satisfied that the letter itself could not have been provided to the delegate before the decision was made.

    The statutory declaration

30. One factual issue in the Applicant’s visa application was how the Applicant sustained certain bodily injuries to his arm and other parts of his body. Before the delegate, the Applicant, on several occasions, had maintained that he had suffered injuries in an explosion when he was at a friend’s or family member’s house.

31. In his arrival entry interview the Applicant had said that he had left Sri Lanka for the following reasons:

    In 1997, I was at a friend’s house when a shell hit the house, and I got wounded in my arm and shelled in my ear.

32. In his first statutory declaration before the delegate (not being the “new information” in the Statutory Declaration with which I am directly concerned), the Applicant said that he was bombed at his “aunty’s house” and “I was seriously injured on my arm, hand, I had a head injury and some shrapnel went in my ear.”

33. The delegate duly found that the applicant had suffered bodily injuries as he then alleged as follows:

    Bombing in 1997

    In 1997 the applicant was at his aunt’s house with several other relatives during a battle between the Sri Lankan army and the LTTE. During this battle the house that the applicant was in was bombed. The applicant received injury to his arm, hand and head.

34. In the second (new) Statutory Declaration, the Applicant made a new and inconsistent claim. The Applicant provided the Statutory Declaration under cover of a letter of the ASRC (his representative) dated 4 July 2017 after the delegate’s decision. The Applicant declared at [15]–[16]:

    15. I spent some time as an LTTE soldier [place name omitted]. I was involved in battles against the Sri Lankan Army.

    …

    16. I was sent with my battalion to the front defence line. I dug and was positioned in trenches. My main duties were to stop the Sri Lankan Army from advancing. I was a Sentry Soldier and l used an AK47. People died on both sides. We were regularly shelled and I saw my cadres killed. I was seriously injured on my arm by a bullet. The bullet went through my arm. You can see where on my arm. In my previous statement I had said that my arm was injured at the time of the bombing of my house. This was untrue.

    [Emphasis added]

35. As to the Statutory Declaration, the Authority found in its Reasons at [5] that:

    The applicant makes new claims in this statutory declaration regarding his involvement in the LTTE whilst he was living in Sri Lanka

    …

    The applicant retracts his previous claim that he was injured as a result of the bombing of his house.

36. At [9] the Authority found:

    I do not accept the applicant’s statement that he feared disclosing a claim that would have been fundamental to his application for protection, noting also that the information is a completely new claim that is inconsistent with the claims he has in fact made as part of his PV application.

    Counsellor’s Letter

37. The author of the Counsellor’s Letter dated 11 July 2017 (a date after the delegate’s decision) was a counsellor at the Victorian Foundation for Survivors of Torture who had conducted a psychosocial assessment of the Applicant and then commenced counselling with him.

38. The Applicant provided the Counsellor’s Letter to the Authority under cover of a subsequent  ASRC email dated 19 July 2017: that is, after the delegate’s decision. The Counsellor’s Letter included the following:

    He has stated during counselling that he had originally not disclosed all relevant details about his history, in particular his association with the LTTE, as he said he feared he would be "punished" for being linked to the LTTE. He reported that from the point of arrival [….] he was concerned that information provided to the DIBP may somehow become known to the Sri Lankan authorities and that his life would be put at risk if he were forced to return to Sri Lanka. Also, [name omitted] stated that upon arrival at […], he had seen Sri Lankans being deported for what he believed to be their links to the LTTE.

39. The delegate’s decision having been made on 1 June 2017 and the Counsellor’s Letter being dated 11 July 2017, meant that the Authority was satisfied — as it had to be given the chronology of events — that the letter could not have been provided to the delegate before the delegate’s decision was made. There was however a distinction between the letter and its content. Importantly, the forensic significance of the new information was that the content of the Counsellor’s Letter provided the Applicant’s explanation for the reasons why he had not previously disclosed his personal involvement with the LTTE. The ASRC covering email dated 19 July 2017 was explicit as to the forensic significance of the explanation:

    It is apparent that the Applicant was initially hesitant about providing full details of his involvement with the LTTE due to a fear that he would be investigated by ASIO and subsequently detained or that he would be deported to Sri Lanka and arrested upon return.

1. Also, the Applicant sought to reinforce this point, by providing under cover of the ASRC email dated 19 July 2017 an ABC Report transcript titled “ASIO rulings keep refugees in detention” as to Sri Lankans who had been given refugee status but not released because Australia’s intelligence agency considered them a security threat.

   DID THE AUTHORITY MAKE A JURISDICTIONAL ERROR BECAUSE IT FAILED TO FOLLOW THE STATUTORY PATHWAY?

2. The alleged error in this case is that the Authority failed to perform its procedural duty to assess the information against the criterion in s. 473DD(b)(ii) and thereby failed to take account of a mandatory relevant consideration in the purported application of the criterion in s. 473DD(a) as the High Court plurality explained in AUS17 at [12].

3. The Applicant alleged there was a failure to take into account a mandatory relevant consideration and to follow the statutory pathway by failing to assess whether the information could be believed and rather assessing whether it should be believed. The Tribunal, it is argued, skipped over the procedural stage s. 473DD(b) mandates and considered only whether the information should be believed, a matter properly considered at its deliberative stage, and thereby imposed a higher standard than s. 473DD(b)(ii) requires.

4. At [12]–[14] of its Reasons, the Authority decided not to consider the new information in the Statutory Declaration or in the Counsellor’s Letter.

5. The Applicant made two points in his submissions which I wish to consider separately.

   Did the Authority fail to make any assessment as to whether the content of the counsellor’s letter was credible personal information?

6. The first point was that the Applicant submitted that the Authority failed to make any appropriate assessment as to whether the Counsellor’s Letter contained “credible personal information” and made a jurisdictional error by that omission to follow the statutory pathway under s. 473DD(b)(ii). That is, the submission was not that the Authority imposed (in error) a higher standard of satisfaction than the criterion in s. 473DD(b)(ii) requires, but as to the Counsellor’s Letter it failed to make any assessment of credibility of the Counsellor’s Letter at all.

7. I do not accept this submission.

8. In the relevant passage of its Reasons (extracted below) the Authority set out its assessment of credibility both of the Statutory Declaration and the Counsellor’s Letter.

9. The Authority’s reasons included the following:

   12. The applicant was clearly advised by the delegate at the commencement of the protection visa (PV) interview that details of his claims would not be shared with the Sri Lankan authorities. Further, he was clearly advised that it was extremely important to provide the department with complete and accurate protection claims as early as possible, including during the PV interview, and that it was his responsibility to raise his claims for protection. The applicant was also cautioned that if his application was refused he may not have another chance to provide further information to support his claims. The delegate provided the applicant with an opportunity during the PV interview to add or change anything in his PV application, and whilst he provided some further information at the PV interview, he did not raise the new claim he is now making. He has not explained in his statutory declaration why he is no longer fearful of being detained as a result of any negative ASIO assessment and why he is now willing to reveal his claim of LTTE involvement. Although I note that the Counsellor’s letter reports that the applicant stated that his fears have been diminished since seeing Sri Lankan(s) who had disclosed connection to the LTTE and who had not been deported, this relates to the initial fear relayed by the applicant to the Counsellor that he would be arrested upon return as he had seen Sri Lankans deported for what he believed to be their links to the LTTE. This explanation of diminished fear does not apply to the applicant’s stated fear of being detained as a result of any negative ASIO assessment. The applicant has provided no explanation as to why he now no longer holds this fear of being detained and why he is now willing to disclose this claim. Further, I note that the applicant had the assistance of the same organisation that assisted him in preparing his PV application, namely the ASCR, in preparing his statutory declaration setting out his new protection claims. I am not convinced that the applicant’s claimed fear of being detained is other than a contrived explanation for not having disclosed his LTTE involvement previously.

   13.Having considered the explanation provided by the applicant in both his statutory declaration and the further explanation set out in the Counsellor’s letter for not bringing forward this new claim earlier, and noting that it significantly changes the nature of his protection claims, the applicant has not satisfied me that it is credible personal information or that it could not have been provided to the delegate before the decision was made.

   14. In all the circumstances, I am not satisfied that there are exceptional circumstances to justify considering the new information (claim relating to LTTE involvement, the Counsellor’s letter and the ABC Report).

   [Emphasis added]

10. It is apparent from the passage above that the Authority was bringing its mind to bear on whether it should consider the statutory declaration and the Counsellor’s letter as credible personal information.

    Did the Authority impose a “higher standard of satisfaction” than the statute requires?

11. The Applicant’s second submission was more substantive, namely that the Authority erred by assessing whether the new information should be believed as opposed to whether it could be believed and thereby did not follow the statutory pathway because it imposed a higher standard of satisfaction than the criterion in s. 473DD(b)(ii) requires.

12. As to the Statutory Declaration, the Authority found at [13] that:

    noting that it significantly changes the nature of his protection claims, the applicant has not satisfied me that it is credible personal information or that it could not have been provided to the delegate before the decision was made.

13. As to the Counsellor’s Letter, the Authority noted that the Applicant had provided no explanation as to why he no longer holds a fear of being detained as a result of a negative ASIO assessment.

14. In the final sentence of its reasons at [12], the Authority referred to the Applicant having provided a “contrived explanation” for not disclosing his LTTE involvement earlier.

15. The Authority’s characterisation of the “new information” in the Statutory Declaration and the content of the Counsellor’s letter — in its critical part as to the explanation for why the claim about the Applicant’s personal involvement with the LTTE had not been raised before the delegate — as a “contrivance” was a characterisation of the “new information” as not capable of being believed. A “contrived” explanation is one which is not capable of being believed: which could not be believed. It was a rejection of the new information as not credible. In my assessment, the Authority followed the statutory pathway and made the evaluative determination that s. 473DD(b)(ii) requires that new information could not be believed because it was a “contrivance”.

    The issue is one of substance, not form and no formulaic consideration is required

16. The Authority did not expressly refer to s. 473DD(b)(ii). That of itself does not disclose error: the issue is a matter of substance, not form. In BTK19 Perry J at [56] said that whether the Authority has complied with s. 473DD “must be addressed as a matter of substance”. Her Honour explained:

    even if the Authority has not expressly referred to subsections (b)(i) and (ii) and has not expressly taken its findings on those criteria into account in considering whether the criterion in (a) is satisfied, the Court may nonetheless be satisfied, as a matter of substance, that the Authority has approached the application of the provision in this way …

17. In FGI18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 57, O’Callaghan J said at [28]:

    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.

18. In FGI18, O’Callaghan J was satisfied that the Authority had made the relevant assessment of the information with reference to the s. 473DD(b)(ii) criterion in circumstances in which the Authority had doubted the genuineness of the new information (see FGI18, [14] and its reference to paragraph [11] of the Authority’s reasons under review in that case).

    A distinction between information which could not be believed and should not be believed

19. There is a distinction between information which could not be believed and should not be believed.

20. Perry J said in BTK19 at [51] and [65], referring to the earlier decision in BTW17, “mere doubts or concerns about the veracity the new information alone will not suffice”. In that case, “questions” “concerns” and the fact it was “somewhat convenient” that “unsupported claims” were presented for the first time to the Authority was not enough to characterise information as incapable of being believed (see BTK19, [66]; [68]). Those issues of questions, concerns, conveniences and corroboration may go to whether new information should be believed as contrasted to whether it could be believed. As such, information about which there were questions or concerns had to pass through the “filtering mechanism” Bromberg J described in CSR16 to the deliberative stage.

21. In BTK19, Perry J also approved Raper J’s decision in EEP18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2023] FCA 682 at [81]–[82] where Her Honour noted that the decision-maker did not reject the veracity of an assertion “but only questions it.”  If a decision-maker only questions information, that does not rise to the height of saying that the information could not be believed.

22. In my assessment, the Authority’s reasons in this case are distinguishable from those under consideration in BTK19 and EEP18.

23. The critical part of the Authority’s reasons is its reference to the new information (which comprehended both the Statutory Declaration and the Counsellor’s Letter) as a contrivance (Reasons, [12], above). The Authority’s reference in its reasons to a contrivance, is best understood as a finding that the Statutory Declaration and the content of the Counsellor’s Letter, as far as the Authority was concerned, were not capable of being believed. This Authority had more than “questions” or “concerns” about the new information. It outright rejected the new information as a “contrivance,” not capable of being believed.

24. In rejecting the new information as a contrivance and not capable of being believed, as a matter of substance, it made the relevant assessment of the new information against the criterion in s. 473DD(b)(ii).

25. Provided the Authority made the assessment of whether the new information was capable of being believed it followed the statutory pathway.

    The Applicant does not allege that the Authority’s assessment of the new information as not credible personal information was unreasonable in the legal sense

26. The alleged error that the Authority failed to take into account a mandatory relevant consideration — namely the assessment of the new information against the criterion in s. 473DD(b)(ii) — is conceptually distinct from an error that the Authority assessed the information against the criterion in s. 473DD(b)(ii) but reached its state of satisfaction that it was not “credible personal information” in a way which was unreasonable in the legal sense. On the Applicant’s analysis, no question of unreasonableness arose because at an anterior point the Authority had not applied the correct test: it asked itself should information be believed, not could it be believed. The alleged error is the Authority’s application of the wrong test. The alleged error is not the application of the right test and the reaching of an unreasonable conclusion in the application of the right test.

    CONCLUSION

27. I will dismiss the application. I will order that the Applicant pay the First Respondent’s costs fixed in the amount of $8,371.30.

I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Champion.

Associate:

Dated:       19 November 2024