AUS17 v Minister for Immigration and Border Protection & Anor

[2020] HCATrans 130

[2020] HCATrans 130

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S71 of 2020

B e t w e e n -

AUS17

Appellant

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

KIEFEL CJ
GAGELER J
KEANE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO CONNECTION TO BRISBANE, SYDNEY AND MELBOURNE

ON FRIDAY, 4 SEPTEMBER 2020, AT 9.46 AM

Copyright in the High Court of Australia

____________________

MR S.B. LLOYD, SC:   May it please the Court, I appear with MR J.B. KING, for the appellant.  (instructed by Varess)

MR G.R. KENNETT, SC:   May it please the Court, I appear with MR B.D. KAPLAN, for the first respondent.  (instructed by Sparke Helmore Lawyers)

KIEFEL CJ:   Yes, and the record should show that Justice Keane and I and Justice Edelman are sitting in Brisbane, Justice Gageler in Sydney and Justice Gordon in Melbourne, and that the video conferencing is being hosted through court room 2 in Canberra.  Yes, Mr Lloyd.

MR LLOYD:   Thank you, your Honour.  We will first address what we say is the correct construction of section 473DD of the Migration Act and then we will make submissions on why, on a proper application of the law, the Authority erred.  Going to the legislation, first of all some observations about its general context.  This appeal involves the construction of 473DD which is located in Part 7AA of the Migration Act.  That part is concerned with what are so‑called fast track review processes.  It makes provision for the review of so‑called fast track decisions.  These are, in essence, decisions to refuse protection visa applications made by unauthorised maritime arrivals. 

In this way the Migration Act has two parallel but different processes for different classes of protection visa applicants.  Fast track applicants generally have an automatic review under Part 7AA.  Other protection visa applicants have a right to seek review in the Administrative Appeals Tribunal.  It would be fair to say that Part 7AA provides review procedures that are generally more streamlined than those available in the Tribunal and in both cases, however, the procedures serve to provide processes by which Australia is able to identify whether or not it has obligations under international law in respect of the persons concerned.

Part 7AA can be found in volume A of the joint bundle, starting at page 11.  If I scroll down to section 473BB, it contains definitions.  I simply note in passing there is a definition for “new information” which is drawn from 473DC.  Definition of a “referred applicant” which just:

means an applicant for a protection visa in respect of whom a fast track reviewable decision is referred –

And then there is also a definition of “review material”, which is drawn from 473CB.  Division 2 starts on page 14.  The significance of section 473CA is that there is no application process for fast track review.  They are to occur by operation of this provision, in the case of every fast track review decision.

Section 473CB both identifies what is review material and obliges the Minister to give that material to the Authority.  For present purposes, the review material can be considered to be the material that was before the delegate who made the primary decision.  That is not absolutely precise, but that is the gist of it, for present purposes.

In 473CC, a duty to review a fast track decision, at subsection (1), and we will make reference to that duty to review a bit later.  We address, in our written submissions, the scope of the duty to review at 44, I will not repeat that.  It is to consider afresh the application for a protection visa, the Authority is to decide whether or not it is satisfied if the relevant criteria are met.  While it is referred to in section 473FA(1) as a limited review, it is limited only insofar as the Act specifies procedures that are more streamlined than are available in the AAT.

The duty to review, we say, does not have a different meaning that it has when the AAT does a review in terms of the nature of the task before it, it is just done on slightly different materials.  Section 473CC(2) identifies what decisions can be made.  Apart from affirming a decision, the Authority can “remit the decision for reconsideration” with the direction, and, I do not think this is before the Court, but I can tell the Court that regulation 4.43 of the Migration Regulations 1994 identifies a range of possible directions, including that the referred applicant must be taken to have satisfied specified criteria for the visa, or that the referred applicant is a refugee under section 5H.

Division 3 is entitled “Conduct of review”, that critical section is in this case.  Section 743DA identifies that Division 3:

is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to –

fast track reviews.  While less expansive than might have been otherwise implied, the Division still serves the purpose of providing some measure of procedural fairness, and we say it should be construed as such.  Section 473BB imposes a duty that is, as expressed, subject to this part.  The duty is that the “Authority must review” a referred decision:

by considering the review material provided –

by the Minister, critically:

without accepting or requesting new information –

that concept of new information I will come back to, and:

without interviewing the referred applicant.

So the default position that is subject to this Act is that it is done on the papers before the Minister.

Section 473DC(1) has two functions.  First of all, it identifies what is new information and, in that respect, there are two separate criteria.  The first is that the information must be information that was “not before the Minister” at the time of the primary decision.  The second, is that “the Authority considers” the information to “be relevant”.  The concept of relevance, we say, involves asking whether the information is – and I quote:

“capable directly or indirectly of rationally affecting assessment of the probability of the existence of some fact about which the Authority might be required to make a finding in the conduct of its review of the referred decision”.

That quote was from a decision of this Court in Minister for Immigration v CED16 [2020] HCA 24 from the reasons of Justices Gageler, Keane, Nettle and Gordon, at paragraph 23. I will not take the Court to it. The second important function of section 473DC is to confer a power on the Authority to get information. So that creates some power to which 473DB is subject.

Section 473DD begins by identifying that it applies:

For the purposes of making a decision in relation to a fast track reviewable decision –

In terms, it provides that the “Authority must not consider new information” unless two potentially applicable paragraphs are satisfied.  I will come to them in a moment.  Formally, a provision is a duty not to consider new information but it seems to be common ground between the parties that when the two paragraphs are satisfied then the Authority should consider the information.

The Minister adopts this approach in the penultimate terms of paragraph 28 of their submissions and we agree with that.  So, in effect, there is a binary effect ‑ if the Authority is not satisfied of the conditions the new information must not be considered.  If:

the Authority is satisfied that there are exceptional circumstances to justify considering the new information ‑

and (b), if (b) is engaged, then it is required to consider it.

Let me say something more about the structure of 473DD and the preconditions.  It may be noted that paragraph (a) needs to be satisfied in every case.  Pre‑condition (b), or paragraph (b) I should say, is conditional in the sense that it arises only when the condition in the chapeau of (b) arises.  So, that is it arises only where the new information is given or proposed to be given to the Authority by the referred applicant.  In relation to any information given by anybody else or obtained by the Tribunal – sorry, the Authority in any other way, paragraph (b) does not even need to be satisfied.

So in cases where the Authority – sorry, I withdraw that.  Paragraph (a) requires the Authority to consider the circumstances.  That, we say, is a broad formulation.  It allows regard to be had to the conduct of the visa application and fast track review to date as well as to any circumstances pertaining to the new information or its source, which is a very broad concept.  As noted in cases where the new information has been given by the referred applicant, the Authority has to reach a state of satisfaction as to either or both of what I will call (b)(i) or (b)(ii).  Both of the matters in paragraph (b) are matters that, if established, would at the least tend to support or strengthen the considerations of whether there are exceptional circumstances in paragraph (a). 

So if the information could not have been put before the Minister under (i), then that would support whether there are exceptional circumstances and, similarly, if it is credible personal information which was not previously known and may have affected the consideration of the referred applicant’s claims, which we would view as sort of a language of significant credible personal information, that might also influence whether or not there were exceptional circumstances.

In some cases, establishment of (b)(i) or (b)(ii) might even be enough to constitute exceptional circumstances to consider the new information.  For example, information about some occurrence after the primary decision such as a coup d’état resulting in the applicant facing harm may alone be an exceptional circumstance that justifies consideration under (a) and (b)(i).

Likewise, the presentation of some credible personal information that was not previously known and had it been known may have affected the outcome could itself be sufficient to meet paragraphs (a) and (b)(ii).  From the structure we advance the following propositions.  In circumstances such as the present where new information is given by a referred applicant, the Authority misconstrues the ambit of exceptional circumstances in paragraph (a) if it fails to consider whether either of (b)(i) or (b)(ii) have been satisfied. 

So, putting this another way, if an Authority purports to say that it is not satisfied of exceptional circumstances without considering whether the information falls within (b)(ii), relevantly for this case, but in fact both (b)(i) and (b)(ii), it is an error law.  We say that is not a novel submission.  We would ask the Court to go to the Part D book and page 538 of the Part D book in the reasons of the Full Federal Court in Minister for Immigration v CQW17 (2018) 264 FCR 249.

EDELMAN J:   Just before you do, Mr Lloyd, do you say that the conditions in (b)(i) and (b)(ii) are any more important, or necessarily any more important, than any of the other circumstances that would be considered in deciding whether there are exceptional circumstances?

MR LLOYD:   I do not say that they are necessarily more important.  I am just saying that they might in themselves be enough.  There may be other circumstances which even outweigh them.  I am not saying that they are necessarily enough.  I am just saying that they are matters which only serve to strengthen the possibility of the existence of exceptional circumstances to justify considering the new information.  So if they exist ‑ ‑ ‑

EDELMAN J:   Is your submission ultimately then that exceptional circumstances requires consideration of all the relevant circumstances?

MR LLOYD:   Yes, that is certainly true, it considers all the relevant circumstances, and (b)(i) and (b)(ii) are amongst the relevant circumstances.  At least if they are engaged, they are amongst the relevant circumstances.  So what we are saying is, you could not say there are no exceptional circumstances, and I do not even need to look at (b)(i) and (b)(ii), because I am dissatisfied – without even looking at them, there are no exceptional circumstances.

If somebody has advanced a case that either (b)(i) or (b)(ii) is met, then there is a need to reach a state of satisfaction as to whether or not they are met.  And if they are met, then that would have to be taken into the balance of whether there are exceptional circumstances.

EDELMAN J:   Is there a duty upon the decision‑maker to set out all of the circumstances that are considered to be relevant in deciding whether or not circumstances are exceptional?

MR LLOYD:   When you say set out, do you mean set out in the reasons?

EDELMAN J:   Yes.

MR LLOYD:   Well, I will come to that.  But, in short, although we do not rely upon it as a necessary part of our case, we do say the answer to that is yes.  That it is ‑ because 473DD has, in a sense, a binary function, either the information is information that must be considered, or it is information that must not be considered.  Then deciding what is before the Authority as to what must be taken into account is part of the review process.  It is a necessary part of undertaking the review, is deciding what you are bound to consider or not to consider and so, therefore, making findings on that would be, we would say, a material fact to be determined in the course of the review.  But we do not have to rely upon that; but that is, in essence, the submission we do make on that ground.

So I was about to go to the decision in CQW17. Relevantly, at paragraph 47, the relevant discussion starts. Now, this is a decision – I should say this ‑ this was a decision of the Full Court which was handed down after the decision in this case before Justice Logan was argued, but before it was decided. It was handed down by the same Full Court that dealt with another case called AQU17, which is referred to by Justice Logan.

So they were handed down on the same day.  Justice Logan does not refer to these reasons, but he does refer to the other reasons that are handed down on the same day.  So we would draw the Court’s attention – I will not read it all out – but from 47 there is a reference to:

the breadth of the expression “exceptional circumstances” –

We note that.  Then there is an extract from the decision of BVZ16, which was the gist of the case that was run before the circuit judge in this case.  We certainly rely upon that analysis, and how structure is described there.  Then there is a reference to that analysis having been adopted by, I think it is two other Full Court decisions.  And then in paragraph 49, an extract of one of those decisions is extracted, which again we rely upon.  And then in paragraph 50 it says that:

The Minister wrongly describes the question as being whether, in assessing if exceptional circumstances under subpara (a) exist, the Authority is required to treat the matters in subparas (b)(i) and (ii) as mandatory relevant considerations.  CQW17 did not advance that argument.

That is also true in this case, because the exact same point was being run.  We do not say that (b)(i) and (b)(ii) are mandatory relevant considerations.  Justice Logan, however, understood the argument in that way, and I will take the Court to that in due course, but they are not mandatory relevant considerations because you do not have to consider them in every case.  By that I mean if, for example, you are satisfied ‑ in a case where there is a referred applicant giving information, if you are satisfied of (a) and (b)(i), you do not have to look at (b)(ii) at all, you could just be satisfied of it and then you are bound to have regard to it.

Conversely, you could have regard to (a) and (b)(ii) and not look at (b)(i) at all, so they are not strictly mandatory relevant considerations.  However, the point is, you cannot be not satisfied without having looked at both of the matters as being potentially relevant circumstances.  So it is not formally a mandatory relevant consideration, but it operates in that way, and we embrace that.  And then in paragraph 51 there is further discussion as to what is required of the Authority, about four lines down:

The Authority is obliged to consider all relevant circumstances, and as White J observed in BVZ16 the matters in (b)(i) and/or (ii) will usually form part of the consideration.  In the circumstances of the present case, the Authority did not –

And this was the words, we say:

evaluate the significance of the relevant part of the New Raid Information, or turn its mind to whether it was credible personal information capable of informing its satisfaction as to the existence of exceptional circumstances.

Now, it has done that because it, as discussed earlier, took an unduly narrow view of “exceptional circumstances”, and that was the error found in those cases, that was the error found in this case by the circuit judge.

Now I should say, in paragraph 51, the Court will see this conclusion by the Full Court is seen as being consistent with Plaintiff M174, so there is no – they do not perceive it as being a tension, but this is the same court who decided AQU17 on the same day, and Justice Logan, as will become clear, considered that M174 had overruled all of this line of cases.

The point we are making is that this Full Court, being the same members of the Full Court that Justice Logan considered had acknowledged that Plaintiff M174 had overruled this line of cases, in fact, clearly is not acknowledging that, because in this case, they are embracing all of this line of cases consistently as being consistent with M174, which is what we say is the correct position.

Perhaps if I do go to Justice Logan’s reasons now, to make that good, that is in the core appeal book on page 69, is the relevant part.  One sees at paragraph 23, towards the end of paragraph 23:

To the extent that the respondent’s submissions are premised on those subjects being obligatory considerations in relation to a conclusion by the Authority, for the purposes of s 473DD(a), as to whether it was satisfied that exceptional circumstances existed, they are mistaken.

I should say, his Honour has, in the previous paragraphs been referring to BVZ16 and in previous discussion he set out aspects of the decision in M174 and so in 23 and then in 24, his Honour says:

It seems to me, with respect, that the learned primary judge proceeded on the basis that, in turning its mind to the subject for satisfaction posited by s 473DD(a) of the Act, the Authority was obliged to be “informed” by a consideration of the matters specified in s 473DD(b).

That is what we say is what those cases stand for and the correct position:

I am not at all sure that in BVZ16 White J intended to convey that there was such an obligation although, with respect, I can see how certain passages in the judgement might be read that way.  However that may be, in light of M174 and AQU17, the basis upon which the primary judge proceeded must now be regarded as mistaken.

We respectfully submit that his Honour is wrong to see that AQU17 or M174 is inconsistent and we rely upon the reasoning of CQW17 to support that proposition.

So we say the provisos in 473DD are alternative requirements when paragraph (b) is engaged.  It is thus completely lawful for a decision to be made based upon (a) and (b)(i), or (a) and (b)(ii), for this reason ‑ (b)(i) and (b)(ii) are alternative ways of complying with 473DD and they are not mandatory relevant considerations but they are still matters that must be considered before a negative conclusion is reached.

Putting that another way, for the Tribunal to lawfully conclude that paragraph (a) has not been satisfied in a case where there is new information has been given, we say the Authority must have considered both (b)(i) and (b)(ii).  Your Honour Justice Edelman asked before that…..I should have made clear it is not every circumstance, it is every circumstance considered to be material, we would say, would need to be set out to explain the reason as to what is part of material before the Authority or not. 

The error accepted by the circuit court judge was that the Authority had concluded that there was no exceptional circumstances without considering (b)(ii) and this was an error because (b)(ii) was a mandatory relevant consideration – sorry, this was not because (b)(ii) was a mandatory relevant consideration but because it showed an unlawful narrowing of the concept of exceptional circumstances.  That approach, we say, is not only consistent with the authorities we have referred to but also M174, it also reflects the remedial or ameliorative nature of the provisions of section 473DD.

By that I mean it provides a gateway that ensures that Australia will be able to comply with its international obligations, notwithstanding the use of the streamlined processes.  It operates when the default rule – that is the 473DB rule – is to not allow consideration of new information, and it remedies it to some extent at least by what would otherwise be a very harsh or potentially harsh operation.  In our written submissions in paragraphs 34 to 38 we canvass the legislative history of 473DD(b)(ii) which is itself referred to in M174 at paragraph 33. 

In essence, the original version did not include (b)(ii) at all, but it was added as an alternative to (b)(i), so (b) was basically broken up into (b)(i) and (b)(ii), thus expanding the types of new information that could in appropriate cases or appropriate circumstances justify inclusion in the Authority’s review.  That is, we say Parliament considered that credible personal information that was significant, and significant in the sense that it may change the outcome, was worthy of separate and special consideration under 473DD before the prohibition on new information would apply.  Now, if that construction is correct, we would say that it necessarily follows that Justice Logan is wrong at 23 and 24 and that error, we would say, flows also into paragraph 26 which is in the application of it, but I will come back to that at the end of my submissions.

Before turning to what the Authority did in this case I need to say some more things about what 473DD requires it to have done.  As I have indicated, it is common ground between the parties that 473DD has a binary operation.  That is, it either prohibits the Authority from considering an item or requires it to consider an item of new information.  We say when that is seen in the context of the Authority’s overarching duty to review in 473CC, the Authority is in positive cases bound to consider the new information in undertaking the de novo consideration of visa applications. 

In support of that, in our submissions in‑chief we refer to some authorities in paragraph 45.  They are not even in the bundle so I will not – other than that, we rely upon those.  In the bundle there is the decision in Part C in M174.  I take the Court to one part of one judgment in that, which is the judgment of Justice Edelman.  It is at page 353 of the bundle.  The relevant page is 353 and paragraph 95 and the relevant sentence is at the end of paragraph 95 where your Honour said:

Although the view under Pt 7AA is a more “limited form of review” than the s 25 review in Brian Lawlor or the review under Pt 5 or Pt 7, it remains a de novo review by which the Authority is required to reach its own conclusion, including by reference to new information.

So we say that our first proposition is that if it indicates that 473DD has been met, there is a duty to have regard to that new information.  Putting that another way, the obligation to review is an obligation to review on the material before the review body, that it is not bound to disregard.  And we have some authorities in our submissions at paragraph 48 which we would rely upon in that regard.

There is no difference whether the review body is the AAT or the Authority in this regard.  Now, judgments of the Court have indicated that the Authority must have regard to the so‑called review material in undertaking its review, and that is in the bundle of materials in Part C.  It is in, first of all on page 127 of Part C.

GORDON J:   Which authority is this, Mr Lloyd?

MR LLOYD:   I am sorry, this is CNY17 v Minister for Immigration and Border Protection (2019) 94 ALJR 140, and the first reference is to paragraph 7 in the joint judgment of your Honour the Chief Justice and Justice Gageler. Around about a third of the way down paragraph [7] it says:

The requirement is no more than that the Authority examine the review material provided to it by the Secretary in order for the Authority to form and act on its own assessment of the relevance of that material to the review of the referred decision.

And at the end of the paragraph:

What the Authority cannot do is to fail or refuse to turn its attention to any of the review material that is given to it by the Secretary.

We would say that that extends also to any new information.  That is not what is said there.  Also in the same judgment, the same decision, in paragraph [140], in the reasons of Justice Edelman, it refers to, in the first sentence:

the Secretary considered that it was relevant to the review, and that by s 473DB(1) the Authority was required to consider that material.

So that supports the proposition that the Authority has to have regard to the review material.  We say that that extends where 473DD is engaged to having to have regard to that material as well.  In circumstances where the Authority is either bound to consider that new information or bound not to consider it, the duty to review includes a duty to form and act on its own assessment under 473DB.

Now, if I say something more about the relevant part of 473DB, which is DB(2) in this case, it is a matter of what is required for the Authority to perform its state of satisfaction and, first of all, the new information has to be personal information, and personal information is defined to mean information or an opinion about an identified individual or an individual who is reasonably identifiable – there is a tolerably objective…..test.

The new information must have not been – not previously known to the referred applicant or not previously known to the Minister.  In that regard, we just note that in M174 at paragraph 33 the Court explained why the knowledge aspect is either to that referred applicant or the Minister is sufficient.

This consideration would require some knowledge of what is in the relevant material to know if it is referred to.  So that shows that the assessment of new information is not abstracted from the review material.  It needs to be assessed, in part, with regard to the review material.  Further, the new information must also be credible.  In cases set out in our footnote 38 of our submissions in‑chief, the idea of “credible” has been explained by the Full Federal Court as meaning:

“open to be or capable of being accepted by the Authority as truthful (or accurate, or genuine)”.

Where a referred applicant gives the Authority new information that is credible personal information – not previously known to the referred applicant or the Minister in order to decide whether the information is bound to be…..disregarded, the Authority then needs to consider whether it is – and I quote from the section, whether it may be affected:

may have affected the consideration of the referred applicant’s claims.

That is the last element of that…..This is not an assessment merely of relevance.  It is better conceived of as an assessment of the potential significance of the new information.  This was described in that way, both in CQW17 at paragraph 51 which I have taken the Court to, but also in a case called BBS16 (2017) 257 FCR 111 at page 105. It is in the Part D book at page 524. The Court, in that case, at the end is describing what needs to be done. At the end of 105 says:

The latter provision requires an evaluation of the significance of the new information in the context of the referred applicant’s claims more generally.

We reply upon that.  This analysis may be straightforward, positive or negative in some cases.  The Authority might be able to say that even if I accepted this information as true, it would make no difference and so come to a negative view on that front.  If so, it would obviously be required to disregard it.  Conversely, a positive assessment might be made also fairly directly.

One example of such a positive assessment potentially being made fairly directly is given by this Court in M174, which is back in Part C – I just have to find it again – at paragraph 50, at page 341.  This discussion in paragraph 50 was done for a different purpose, which is largely explained by paragraph 49, but, nonetheless, it goes ‑ three members of this Court indicating how a positive assessment could be made relatively, sort of succinctly.

Now, I want to make clear, because I think it may have been misapprehended by the Minister, we do not say that the evaluation requires the Authority to determine whether or not the information is true.  This kind of evaluation is a matter of saying, if it is true, what significance might it have for the person’s claims?  Obviously, if it is not credible, then you do not even have to get to that point, but if it is credible, then one assesses the significance by reference to what would be the position if it were true.  In most cases it could readily be approached by asking what the ‑ sorry, I have dealt with that.

Now, there is one further submission I would like to make before turning to the circumstances of this case.  If it is correct that the Authority cannot make a decision on the review until it has determined whether the information is excluded or included under section 473DD, then those findings are necessarily material to its decision on the review.  It would follow that the Authority would be required to set out its findings on these issues in its reasons for the decision as material findings of fact necessary for the decision.

It would follow that a failure to set out reasons addressing 473DD(b)(ii) in respect of excluded material apparently capable of falling within its scope would support an inference that the Authority did not consider whether or not the new information came within that provision.  That inference is one of the two ways we put the next part of our argument, but it is – we do not need it, but we say that it does follow and should be adopted by the Court.

So, if I now turn – that is really all we want to say about the construction of the legislation.  If I now turn to considering what was done in the circumstances of this case.  The parties agree that the Authority made no express finding as to (b)(ii).  We say that in our reply at paragraph 10 and the Minister says it in their submissions in paragraph 50.  This case turns on inferences to be drawn from there being no finding on (b)(ii).  Our case is that two negative inferences should be drawn.

First, that the Authority did not consider (b)(ii), in respect of the relevant bit of information, or second that the Authority did not evaluate the potential significance of the letter for its review.  Either of those two inferences would be sufficient for my client’s appeal to be allowed.  There are two alternative paths by which the inferences can be drawn.  Now, I will pursue the first of those paths.  This is a case where the Authority chose to give reasons for its conclusions under 473DD, and whether it did or did not apply in relation to each piece of the new information.  In those circumstances, there is no difficulty in drawing such inferences as fairly and naturally arising on the reasons that have been given.

Secondly, and the additional basis is the one that I mentioned a short moment ago about the use of…..approach from the absence of reasons, one can also draw an inference from the absence of reasons, applying the more typical use of analysis.  Now, we say it should be inferred that the Authority failed to consider (b)(ii), and for each instance of new information, in this case the Authority chose to give reasons for its conclusions that 473DD did or did not apply in respect of the information, whether the letter at issue in this case ‑ sorry, did not apply in respect of that information, including in relation to the letter which is in issue in this case.

In giving reasons for each other instance of new information, the Authority expressly referred to (b)(ii) and expressly stated whether it was satisfied or not satisfied that the new information was credible personal information.  If I can ask the Court to go to the core appeal book on page 8.  So, in paragraph 9, that paragraph is dealing with country information reports.  On the fourth line the Authority first considers (b)(i) and says:

I am not satisfied that these reports could not have been provided before the delegate’s decision was made.

Immediately following that the Authority then considers (b)(ii):

Nor am I satisfied the new information is credible personal information. 

Then, in the last sentence of paragraph 9 the Authority gives separate consideration to (a):

Further, I am not satisfied that any exceptional circumstances exist that justify considering the new information.

So, the Authority has clearly considered each of the elements in 473DD.  Then going to paragraph 10, and that is the one about which complaint is made, the paragraph deals with the letter at issue here.  In the third line the Authority first considers (b)(i), so it says:

there is no reason to believe that the applicant could not have obtained a letter outlining this information earlier and provided it to the Minister.

So, that speaks to (b)(i).  Then, the Authority moves immediately to consider (a):

I am not satisfied that any exceptional circumstances exist that justify considering the new information.

Nothing, we say, is said about (b)(ii) or credible personal information.  I will come back to this point but I am just, first of all, trying to structure the argument to show what the Authority did.  Then, going in paragraph 11 and that is dealing with a different kind of new information, the Facebook posts.  The Authority here begins by considering the applicant’s explanation for why the information was not provided to the delegate.  He did not understand the importance of it.  The Authority then goes on to note a submission about the potential significance of the information in the sentence started “It is submitted that”.  Then in the third last line, the applicant considers (b)(i) and (b)(ii) together, it says:

While the information pre‑dates the delegate’s decision, I am satisfied it is credible personal information which if known could have affected the primary decision.

It then is satisfied and allows that information to be considered or does consider it.  So, we say, the Authority thought that the potential significance of the Facebook posts and the fact that the applicant had not understood their importance constituted exceptional circumstances and justified the Authority considering them.

EDELMAN J:   Mr Lloyd, the applicant was represented before the Authority?

MR LLOYD:   I think the answer about when you say “before the Authority”, I mean, it is only a written process but, yes, there was a submission – there was a written submission and I will be taking the Court to that in a little while.  Yes, but there was a submission to the – that is so.

So we say that the analysis of these three paragraphs shows that there are – there are three paragraphs in which the reason the Authority was dealing with the new information.  The middle paragraph is what the current case is about.  In each of the paragraphs before and after there is a mention of (b)(ii).  There is not a mention of (b)(ii) in the middle paragraph and that, we say, supports an inference that the Tribunal failed to consider (b)(ii) in relation to that matter.

Now, it should be, we say, inferred that the Authority also failed to evaluate the potential significance – that is the second inference that we saw.  The first one is considering (b)(ii) and the second one is to consider or to evaluate the potential significance of the letter.  The previous inference – sorry, I withdraw that.

So there is an inference that the Authority failed to evaluate potential significance arises from the material that was before the Tribunal, and that is in a bundle called I think Appellant’s Further Materials and if I can ask the Court to go to page 47, that is a letter from the migration agent who was representing my client at that time.  Paragraphs (a) and (b) state that it attaches a written submission and a letter from an ex‑member of Parliament.  If I can from there over to page 48, 48 is the beginning of the written submission.  At about line 20 the submission says:

The applicant instructs us that he strongly disagrees with the finding of the delegate –

And the Court may recall that the delegate had found that he was no longer of interest to the EPDP, which is a political party, or the army.  So that is at least in part what he was disagreeing with, and he put on this evidence in part to show that he was still of adverse interest to that party and to the army.  Over to page 49, at about line 13 we have a submission about the letter.  It starts “New information”.  Then there is an extract from the letter and at about line 16 it says:

Even still the EPDP and the Army visit his house to make enquiries about his whereabouts.

It is obvious that this, we say, is personal information about them visiting his house.  At about line 20 it says:

This letter was dated 12/10/2016, and on that basis could not have been provided to the delegate.

That appears to have been the representative’s attempt to satisfy (b)(ii), that the document did not previously exist.  There is then an express request immediately after that to consider the information under 473DD.  Then at about line 25 it is submitted:

The applicant will be identified at the airport as someone who is of interest to the Sri Lankan authorities –

leading to:

a real chance of serious harm. 

That is the context in which it was advanced.  Then down under that there is a heading:

IMPUTED POLITICAL OPINION:

And immediately under that heading it says:

The applicant strongly believes that he would be perceived to be someone linked to the LTTE.  As a result, he fears that he will be detained . . . or killed by –

various people, including “the Army”.  And then over at page 50, at about line 5, there is then an extract from the letter again, the same extract from the letter showing the continued interest.  All of this is under the heading:

IMPUTED POLITICAL OPINION:

from the previous page.  So these are evidently submissions about the potential significance of the letter for his protection claims.  Over to page 51, there is a heading:

ISSUES WITH ARMY:

Here we have the principal adverse finding made by the delegates:

“While I accept that there is a possibility that the applicant will be harmed by some elements of the army –

It continues on that ‑ that danger is limited only to a particular area.  And it is submitted:

The applicant strongly disagrees with this finding and states it is unreasonable –

And then immediately reliance is placed on the letter again.  There is the extract about the “EPDP and the Army” making inquiries about him.  There is then the submission that the delegate’s finding is “erroneous”, at the very bottom of the page:

as it is clear the army continues to look for him throughout the entirety of the country.  The SL army –

that must mean the Sri Lankan army:

is based throughout the country.

This is, we would say, also information suggesting that the army is after him throughout the country.  Now, to the letter itself, which starts at page 53, it begins by saying that the applicant:

and his family are known to me.

Which is to say, to the author of the letter, the author knows the family.  He is an ex‑politician from Jaffna; one sees that at the top of the page.  He then goes on to describe a traffic accident that happened when the appellant was driving to Jaffna, in which an army officer was killed, and a case was filed against the appellant in a local court.

There is nothing, we would say, inherently implausible about a politician knowing of local deaths and court proceedings.  It is then said:

After this incident he was being followed by the Army Officers . . . wherever he went.

Other events are then described.  At the bottom of the page it is said:

He had to leave Sri Lanka –

because:

his life was threatened –

Over to page 54, that first sentence is the passage which is quoted multiple times in the submission.  Again, this is clearly personal information of some potential significance, we would say.  Now, against that, we then go back to paragraph 10 in the Authority’s reasons.  The Authority gave only one description of the substance of the letter, and that was in paragraph 10.  That is, it says the letter:

recounts the claims already provided –

That is the full ambit of the discussion.  That description reveals the Authority, we say, did not evaluate the more significant parts of the letter that did much more than simply recount claims that had already been provided.

There is no reference to the representative’s submissions seeking to explain the importance of the letter, that is despite all of the representative’s submissions we have just gone through about the significance of the letter and the explanation that it was submitted to the Authority to dispute the principal adverse finding made by the delegate.

We say that there is no indication of any intellectual engagement with the material at a level that could support what was required, and so that supports an inference that what was required was not done.  So that is how we say that the Court can draw that negative inference from this material.

In addition, and I will not labour the point, we also say that to apply a more traditional…..if we are right that there is an obligation to make, or that the setting out of reasons, or the - sorry, the making of the findings on material questions of fact extend to making of findings that identify what evidence must be considered or must not be considered, if we are right about that then the failure to set out those findings also supports an inference that it was not done. 

Now, all I think I need to do now is go to the judgments.  The first judgment is also in the appeal book on page 45, to see how the learned Circuit Court judge dealt with it.  In paragraph 47 at the bottom of page 45, the first relevant finding begins in the sentence “In particular”:

In particular, the Authority’s consideration in relation to s.473DD(a) was not informed by the consideration of both sub paragraphs of s.473DD(b).

So that is the error that we indicated earlier, sort of a too narrow view to DD(a), it was not about mandatory relevant considerations.  The second finding begins in the next sentence:

Further, a material consideration to which the Authority should have had regard was that the letter in issue was provided to corroborate several of the applicant’s claims, in response to the adverse decision of the delegate.  A relevant consideration for the Authority was the probative value of that purportedly corroborative evidence.

So it is the lack of evaluation, we say.  Three observations can be made.  First of all, the letter was provided to corroborate several of the appellant’s claims, as shown by all of the representative submissions, that is clearly right.  The letter was provided in response to the principal adverse findings made by the delegate, about which the representatives also made submissions, and what the Authority had to consider, in Judge Driver’s view, was the probative value which meant the potential significance.  We would embrace that.

We would say that although it was advanced to corroborate certain claims, because the Court will know from our submissions the delegate was quite favourable to my client, the only concern was the ongoing interest of him throughout the country, and so it was focused upon addressing that issue.  But of course the Authority was much more negative about my client, so in that sense the corroboration of the claims, and the Authority said it did not believe my client because he did not raise certain things in his original entry interview, but the letter from the ex‑politician is actually more useful, it has more significance, if one has regard to the analysis of the Authority, because it corroborates more of his claims.

Going down to paragraph 49, it is at the bottom of page 46 over to 47, Judge Driver has noted what was required by (b)(ii) in this case was:

an evaluation of the significance of the new information in the context of the applicant’s claims more generally.

That is the language from BBS16 at 105, which I took the Court to, and CQW17 at 51, and we say that the learned Circuit Court did not err in that approach.

Now, if I can go back to…..reasons, which is at the end of this book, starting at page 66.  So there are three propositions there.  It is the second proposition which I am now addressing, I have already really addressed the first proposition.  The second proposition is that the Authority had regard to the fact that the letter of support had been given to corroborate his claims for protection.  Justice Logan addresses that issue in paragraph 26, a couple of pages below.  Now, the first half of the paragraph, his Honour says, about four lines down:

I am not persuaded that the Authority was unaware that the Letter of Support, if accepted, was capable of corroborating at least some of the respondent’s claims.

I can try and break that down.  First, in relation to the opening words where his Honour says that he was not persuaded of something, we note that his Honour needed to be persuaded on the appeal that Justice Driver’s findings were wrong and that was something the Minister had to do.  So to be not persuaded of that does not seem to constitute a finding that Judge Driver was wrong. 

But even apart from that, if one tries to remove the double negatives and approach it as if his Honour had found that the Authority was aware that the letter of the Court, if accepted, was capable of corroborating at least some claims, then that awareness is capacity to corroborate at least some claims – shows that the material was relevant – which, of course, it would need to be under 273DC(1) in order to be new information.  But it does not, we say, constitute a proper evaluation of the significance of the material. 

We say that the Authority took an inappropriately narrow view to the breadth of paragraph (a) by considering only (b)(i) in this regard and by not evaluating the potential significance of the letter.  Justice Logan’s judgment does not make any findings about that.  We say for that reason, his Honour ‘s findings do not assist the Minister so far as they go if our view of the law is correct. 

In fact, his Honour went on in paragraph 27, to find that the material was actually potentially significant and so he rejected an argument that had been run that, in any event, the material was not significant.  So we say that does not really help the Minister either.  Going back to paragraph 26, to the second part of that paragraph, there is a passage beginning, “Once this is appreciated”, he says:

what the Authority is conveying in its reasons is that it is not satisfied that this corroborative letter could not have been obtained and furnished to the Minister before the delegate made the decision under review.  That is a sufficient basis, explained in intolerably clear, if abbreviated, terms, for satisfaction that no exceptional circumstances exist.   

Again, there are a couple double negatives there.  But, the first sentence seems to be simply saying that the Authority was not satisfied that the letter met (b)(i).  We accept that it did not meet (b)(i).  The second sentence says that, “That is a sufficient basis” – that is, that that as a non‑satisfaction of (b)(i) is a sufficient basis to be not satisfied of (a). 

That is what we say reveals error.  It is just another way of saying that they do not need consider (b)(ii) in that negative case.  It is our case that, on the proper construction, there was a need to consider (b)(ii) – the reference to it being “a sufficient basis” is wrong and, we say, there was error.  So, therefore, paragraph 26 reveals error and, we say, the appeal should be allowed and costs should follow the event.  May it please the Court, they are the applicant’s submissions.  

KIEFEL CJ:   Yes, thank you, Mr Lloyd.  Mr Kennett, the Court might take its morning break before we proceed.

MR KENNETT:   If the Court pleases.

AT 10.52 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.10 AM:

KIEFEL CJ:   Yes, Mr Kennett.

MR KENNETT:   Your Honours, our learned friends advance this case as one of statutory construction.  They do not rely on an exercise of power by the authority said to be unreasonable.  So, the issues involve largely the construction of section 473DD.  We propose to address that question first and then turn briefly to the nature of the new information upon which the case turns and then what the Authority may be taken to have done about that information or thought about it. 

On the statutory construction questions, there are a number of propositions which we say emerge from consideration of the text of paragraph (a) of 473DD in its context and section 473DD more generally.  The first which is largely contextual is that it falls to be applied by the Authority after it has received information and identified it as new information. 

Your Honours have been referred to the definition of “new information” which includes a requirement that the Authority regards the information as potentially relevant.  So, that will necessarily have been – that view will necessarily have been formed before one gets into the realm of section 473DD.  At the same time this consideration takes place before the information is admitted to consideration as part of the review. 

So, what that suggests is that ordinarily, at least, the Authority will not have a final view and will not, for the purposes of DD, reach a final view about the veracity or the weight of the information concerned.  I am not suggesting that could not be done as part of DD but at least ordinarily the DD process takes place at a preliminary stage…..the information is, for example, weighed against other evidence and weight attributed to it.

The second point we make about construction is that in its application to information that falls by the referred applicant, section 473DD has two requirements which operate cumulatively.  The language of cumulation is borrowed from Plaintiff M174 - without going to it, it is paragraph 31 on page 335 of the bundle.  So that one or other of the tests in paragraph (d) must be met and, further, the Authority must be satisfied that exceptional circumstances exist.  The full phrase is “exceptional circumstances to justify considering the new information”.

Obviously, just as a matter of the structure of that section, satisfaction of one or other of the tests in (b) would not, of itself, be sufficient either to constitute in itself exceptional circumstances in every case or to satisfy 473DD because that would, of course, write paragraph (a) out of the section.

Our third point, and again we are borrowing language here from Plaintiff M174 – this is paragraph 30 - “exceptional circumstances” is an ordinary English expression.  It called for an evaluative judgment by the Authority and a judgment, the content of which is inherently incapable of exhaustive statement.  Of course, a very wide range of matters could be relevant to whether exceptional circumstances exist, and that judgment is one to be made subject to legal reasonableness by the decision‑maker.

We accept though that it would be an error for the Authority to regard any particular factor as necessarily determinative of the existence or non‑existence of exceptional circumstances.  So that to say, “Factor X is present, therefore I must find exceptional circumstances” or “I must not find exceptional circumstances” would be an improperly narrow field for concept and CQW17, to which our learned friends took your Honours, at paragraph 51 on page 537 of the bundle is, we would say, an example of a court identifying that kind of error and we have suggested in our written submissions that several of the earlier Federal Court findings are explicable on that basis.

The point is that, as I put it in the outline, one can accept that the satisfaction or non‑satisfaction of either or both of the requirements in paragraph (d) may properly guide or assist the Authority in coming to a view about whether exceptional circumstances of the relevant kind exist.  We would say, though, that the structure of the section denies those factual matters or matters of assessment any determinative role or any necessary role as a matter of statutory construction.

EDELMAN J:   Mr Kennett, do you accept, though, that a consideration of whether there are exceptional circumstances requires all of the circumstances to be considered?

MR KENNETT:   Yes.  Now – and this is perhaps a fine distinction, but a point of departure between our learned friends and us.  We would say that it may well be right that whether the new information is credible relates to the particular applicant and can be seen to be something that would have made a difference if considered by the delegate.  All of those are matters which the IAA may, and in most cases should, have regard to in deciding whether the circumstances are exceptional.

It does not follow, though, that whether or not the exact terms – it does not follow that there is a requirement to make a finding as to whether (b)(ii) is satisfied or (b)(i) is satisfied.  Those paragraphs, for present purposes, usefully illustrate facts or considerations that may be relevant, and may perhaps be of great weight.

It does not follow, though, that the Authority, as a necessary element of its consideration of exceptional circumstances, has to tick off (b)(i) and (b)(ii).  The basis on which our learned friends suggest such a duty is, with respect, not clear, particularly as they say in the next breath that they accept that these matters are not mandatory relevant considerations.

So there is a duty arising somewhere in the statutory provision to have regard to these matters and a negative decision without regard to such matters is said to be erroneous.  But at the same time they are said not to be mandatory relevant considerations.  In our submission, there is at least some tension between those propositions.

But to return to what we say, we say that paragraph (a) stands alone.  It has the content that is has, standing on its own – content which does require consideration of the whole body of circumstances of the case.  But it does not follow that satisfaction or non‑satisfaction of the specific paragraphs of (b) is, of itself, part of that exercise.

We read the Full Court decisions in AQU17 and in CAQ17 as consistent with that position.  Without going to them, it is paragraphs 14 to 17 of AQU17, which your Honours will find in the bundle at page 406; and in CAQ17, paragraph 37 at page 451, paragraph 122 at page 475. 

It is impossible, as we have suggested, to locate an obligation of the kind for which our friends contend, in the terms of section 473DD itself.  We would submit that it would be erroneous to imply a special status of some kind for paragraph (b)(ii), and to imply that (b)(ii) is somehow inserted into (a) on the basis of a view of the section as remedial or ameliorative.

Those labels can only be applied with some difficulty to the section which, in its terms, is restrictive of the new information that can be considered and indeed, paragraph (a) applies both when the new information is put forward by the referred applicant and when the new information comes from some other source.

So, for example, in Plaintiff M174 at paragraphs 25 and 27, it was noted that there is no necessary dichotomy between the review material and new information.  There could be information provided by the Secretary which was not before the delegate, but arrives as part of the review material.  Paragraph (a) of 473DD governs the circumstances in which the Authority is allowed to consider that information.

So that the section works both ways.  It can work favourably to a referred applicant or unfavourably.  So…..we would submit, is only part of the story, and not accurate and in any event, there is no choice between available constructions of paragraph (a), we would say, that is resolved by such a characterisation.  Our friends really require the implication of a requirement in paragraph (a) that is not sustainable on the terms of the section itself.

They cannot get there, we would say, by describing the section as remedial.  It would also be wrong, we say, to insert (b)(ii) in some way into paragraph (a) on the basis of an overarching concept of review, as our friends seek to do in paragraphs 39 and following of their written submissions. 

The main reason why that is so is that 473DD is part of Division 3, as your Honours have been shown, a division which governs the conduct of the review referred to in 473CC.  Interestingly, DD is not expressed to be subject to this part, as some of the other provisions of Division 3 are.  So the strictures of DD are part of the procedural regime, the express procedural regime along with 473DA, but give shape to the concept of a review in Part 7AA. 

To reason in the opposite direction, we would say, to start with the concept of a review and then seek to use that to qualify the express procedural regime, we would say would be to do things the wrong way around.  DD in substance is a gateway provision.  It determines, while one can accept that the Authority has obligations to consider and engage intellectually with the material that is before it as part of its review, in particular the review material as was emphasised in the passages in CNY to which our learned friends took you, 473DD is a gateway provision that determines whether particular material is or is not within that body of material that the Authority has to consider.  So the more general statements or concepts of a review, we would submit, do not overcome or lead to any particularly stringent reading of DD.

It is also worth noting that the nature of the review to be conducted by the Authority has to be understood in the light of section 473FA which is on page 21 of the bundle of authorities.  It is similar to the exhortatory provisions that are found in other parts of the Migration Act, but not the same, and the objectives that it requires the Authority to pursue or the objective that it requires the Authority to pursue, is to provide what is described as:

a mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3 –

So what is missing from that, that appears in, for example, 422, is any reference to fairness in a general sense.  But what is included, as an objective, is consistency with Division 3, Division 3 which contains 473DD.  So it is the provisions of Division 3, we would say, that define relevantly the concept of a review, rather than the other way around.  The next proposition that we would put is that ‑ ‑ ‑ 

GAGELER J:   Mr Kennett, could I perhaps interrupt to ask you a question.  It was said by Mr Lloyd that it is common ground that section 473DD has a binary operation.  Is that correct?

MR KENNETT:   It is, your Honour.  There is some, perhaps, uncertainty, at a prior stage as to whether the Authority, having received a piece of information, or being provided with a piece of information, has an obligation to turn its mind to that material under DD.  That is somewhat uncertain, and as far as I am aware, unresolved, and it is not clear how 473DC(2) applies in the situation where the new material has arrived.

But if the Authority turns its mind to the new material, pursuant to DD, and concludes that those paragraphs are satisfied, the Authority would necessarily have decided that exceptional circumstances justify receipt of the consideration of the information and we would not submit that, having reached that finding, it would then be open to the Authority to decide not to look at it, not to consider it. 

So that is a long way of saying we are agreed on the proposition, that is, the Authority decides both paragraphs DD are made out.  There is not a residual power to disregard the information.

GAGELER J:   Another way of looking at it, Mr Kennett, might be to say that once the Authority has information that answers the description of “new information”, the Authority has a duty to turn its mind to Section 473DD and make that binary decision.  A further way of looking at it, which is entirely complementary, is where the Authority has the information from the referred applicant the Authority must, as part of the performance of that duty, turn its mind to paragraph (b) and take into account (i) and (ii), unless (i) is sufficiently satisfied, that is to say that it is all a matter of duty which stems from having got new information which it has to decide whether or not to consider.

MR KENNETT:   It is certainly an available position to say that having got the information the Authority must turn its mind under DD to whether or not the information is to be considered.  In the course of that process, as a matter of construction, we would say, if, for example, (d)(i) is satisfied there would be no need for the Authority also to record a finding in relation to (d)(ii), or if paragraph (b) just did not apply because the information came from another source, it would not be necessary, we would say, for the Authority to record…..findings in relation to either subparagraph of paragraph (b). 

Those matters can be taken to point usefully to matters that are likely to be very properly on the Authority’s mind, but it does not follow that their application or satisfaction per se must be considered or recorded as part of the decision under DD. 

Now, the position for which we contend is we also say consistent with the extrinsic materials.  There is a policy position expressed in section 5AAA of the Act, which appears at page 8 of the bundle of materials, to the effect that it is the responsibility of protection visa applicants to specify all particulars of their claims and to do so when the claim is made. 

The same policy is reflected strongly in the explanatory memorandum to the Bill for the Act that created Part 7AA.  It is a very large document and I will not take your Honours to it, but the policy is expressed - and 473DD is referred to that policy, linked to that policy, firstly from page 553 of the bundle and then by reference to the particular provision at page 679, paragraphs 919 to 920. 

Then, as our learned friends have pointed out, subparagraph (b)(ii) was added by way of amendment when the Bill was on its way through the Parliament but the addition of that additional category of material that is capable of being allowed in under (b)(ii) did not, according to the supplementary explanatory memorandum, mean that Parliament was no longer interested in the policy to which I have referred and for that we rely on paragraph 31 of the supplementary explanatory memorandum, which is in the bundle at page 801.

So, for these reasons, we say paragraph (a) does not have a differential operation depending on whether paragraph (i) or paragraph (ii) of paragraph (b) is invoked or met.  It applies according to its terms.  It provides for a broad evaluative judgment to be made and that evaluative judgment does not have as a precondition or necessary element in determination of whether either or both of the subparagraphs in paragraph (b) is met.

EDELMAN J:   Mr Kennett, do you accept that whether information is credible personal information and whether information may have affected the consideration of the referred applicant’s claims are circumstances surrounding that information?

MR KENNETT:   Yes, in the sense that they are certainly capable of being brought to account in the consideration of whether the circumstances are exceptional.

EDELMAN J:   If there are circumstances and if there is a requirement that the Authority considers all of the circumstances when deciding whether there are exceptional circumstances, does that not mean that they are two circumstances that must be considered?  Whether that will dictate the conclusion that the circumstances are exceptional or not is another question. 

MR KENNETT:   When I say the Authority must consider all of the circumstances, it does not mean, we would say, that every conceivable feature of the information or the surrounding circumstances must be addressed.  That approach would make it impossible to draw a line around what the Authority had to think about.  When I say that all of the circumstances are to be taken into account, what I mean is that there is no restriction on the matters – other than a restriction of – there is no limit on the potentially relevant circumstances that the Authority may or should consider.  So that if the Authority regarded it as irrelevant that, for example, there was credible personal information, then that would be an error.

EDELMAN J:   Do you accept that, conversely, if there were circumstances that were so glaring or important that a failure to mention those circumstances might justify an inference that those circumstances had not been considered?

MR KENNETT:   That may occur.  Then, however, the non‑consideration of a circumstance, we would submit, is not necessarily in and of itself a legal error.  As our friends say, and we agree, these are not mandatory relevant considerations.  So that if a particular circumstance is not addressed by the Authority in deciding whether the circumstances are exceptional, that does not of itself mean that there has been a failure to apply the provision.

One would need to take some further step and perhaps infer that there had not been genuine consideration as a matter of fact, or seek to describe what had been done as unreasonable, something of that kind.  But the mere omission to consider a factor, we would say, is not a species of legal error in and of itself because of the very broad and undefined concept of exceptional circumstances. 

Now, I think I have said what I wanted to say about the construction of 473DD.  I was then going to say some things about the letter to which your Honours have been taken at pages 53 and 54 of the appellant’s book of further materials.  In paragraph 4 of my outline, I have identified some features of the letter which one hopes are at least mostly uncontroversial.

The letter comes from an author who claims to know the appellant and his family.  It then sets out quite briefly a history of the appellant’s experiences in Sri Lanka.  It is not specified how the author knows of these things.  Of course, it can be accepted that it is not implausible he would know.  But I note that, just in order to make the point, the letter is not obviously on its face a killer piece of evidence or a killer piece of information.

So it is not a piece of information which is, we would say, plainly so probative or so persuasive that it demands acceptance for that reason.  But then if one goes on with its contents, all of what is on the first page, we would say, amounts to a short summary of events which the appellant had claimed before the delegate had befallen him in Sri Lanka.

So the letter adds a degree of corroboration to those claims.  What degree, of course, would be a matter for the Authority.  Then, over on the next page, we have a single sentence of two lines asserting that the EPDP and the army visited his house.  Now this, as we understand it, is what our learned friend – what our learned friend highlights the accompanying submission from the adviser as having dwelt on.  This is the part that, so our friends would say, addresses the problematic finding of the delegate and seeks to overcome the finding of the delegate that despite what had happened to him, the appellant would not be of continuing interest.

Reference was made to the bottom of page 51 and the top of page 52 of the further materials in that regard.  The proposition that the army was looking for the appellant after he had left Sri Lanka was not new.  It was advanced by the appellant before the delegate, and it is reported on page 24 of the further materials bundle at lines 22 and 23.  He said the army - the letter says the EPDP and the army.  The submission from the adviser again refers, in the part of it that I referred to a minute ago, only to the army. 

We do not understand our learned friends to seek to…..anything material from the fact that the letter refers to the EPDP as well.  But to sum all of that up, the letter, insofar as it refers - and perhaps I should just note, the remainder on page 34 is not directed to the appellant personally, it describes matters of a more general kind - the letter can therefore be accurately described in a general way as prerogative of the claims that had been made, and if admitted to consideration in the review might have been found to add credibility to those claims.  It was not, we would say, any kind of particular advance or expansion or modification or update of the claims that had been advanced.  With those things in mind, can I then turn to the Authority?

We start with the proposition, which is contested, that the statutory duty of the Authority to give reasons for its decision did not extend to a duty to give reasons for the conclusions it had reached under section 473DD.  There is strong authority in the recent decision of this Court in BVD17 for that proposition in connection with procedural decisions, relevantly paragraph 16 on page 34 of the bundle, which refers to the earlier decision of this Court in SZGUR. 

That makes it clear that the decision…..reasons had to be given as the decision – the dispositive decision on the review.  It follows that the Authority is not obliged to give separate reasons complying with the novel requirements for a statement of reasons in relation to each procedural decision that…..  Our learned friends, I think, seek to avoid that by characterising the views that the Authority comes to under DD as necessary elements in the procedure leading to the dispositive decision on the review. 

That reasoning does not work, we would say.  Decisions on the exercise of procedural powers are equally part of the process, are equally necessary background or building blocks of the decision – the final decision on the review.  But, in any case, when a provision such as section 25D of the Acts Interpretation Act refers to reasons for a decision and material findings of fact, it is referring to the decision for which the reasons are required and to the findings of fact that are material to that decision. 

So the material questions of fact for the purpose of the decision on the review are the facts that the Authority needs to find that go to whether a person faces a real fear – a well‑founded fear of persecution, for example, not the findings of fact that lead to a prior decision about whether a particular piece of material satisfies section 473DD. 

So, that if it matters, we would say, that there was not a separate obligation to give reasons for the 473DD decisions that the Authority made and, therefore, that is why one needs to worry about this and, therefore, one does not apply what was said in Yusuf and infer in any sort of automatic way that something that was not mentioned was, therefore, not considered relevant, that is an important aspect of construing the Authority’s reasons.  Another important aspect, of course, is the terms of the reasons themselves and the material with which they were dealing.

As to that, can I take your Honours back again, briefly, to page 8 of the core appeal book where the Authority deals with three categories of information that it regarded as new information.  It is instructive to see how each of those was dealt with.  Paragraph 8 of the reasons sets out, in general terms, the effect of section 473DD.  Paragraph 9 refers to some country information reports.  They are listed in paragraph 5. 

These, so far as we have been able to see, were simply put forward by the appellant’s adviser – sought to be relied on and no particular submission was made as to how those reports could pass through the eye of the needle of section 473DD.  The Authority comes to those in paragraph 9, as I said, and notes that the submission did not provide reasons as to why, in effect - either of the matters in paragraph (b). 

The fact that the submission did not provide any reasons is not insignificant because as your Honours may recall the chapeau of paragraph (b) of section 473DD speaks of the referred applicant having satisfied the Authority of particular things.  So that if the referred applicant does not even try to satisfy the Authority that the information is credible personal information, firstly one cannot, for example, criticise the Authority for not engaging with it, but, secondly, there is a real issue whether the Authority would even be in a position to find that that part of paragraph (b) had been played out.

But, at any rate, the Authority at paragraph…..notes the lack of any submission about paragraph (b) in relation to the country information and then expresses its own negative views about the elements of (b) and then says: 

Further, I am not satisfied that any exceptional circumstances exist that justify considering the new information -

with no elaboration as to the pros and cons of exceptional circumstances.  It is just stated as a conclusion.

I will come back to paragraph 10 because that is the important paragraph.  Paragraph 11 deals with some Facebook posts which had been provided with the adviser’s submission.  It records – paragraph 11 – the submission that was made about that material and about why that material should be considered.  At lines 1 to about 10 of page 49 of the further materials bundle – so here there is a submission being advanced as to why the Facebooks posts satisfied paragraph (b).  The Authority responds to that and says:

While the information pre‑dates the delegate’s decision, I am satisfied that it is credible personal information which is known –

et cetera, and then says, again without elaboration or without reference back to what has been said earlier:

I am satisfied there are exceptional circumstances for its consideration.

So to this point we have two conclusions about exceptional circumstances, one positive, one negative, neither explained, expressly at least, by reference to any particular factors, just stated as conclusions.  One then goes to paragraph 10, and there are two things or perhaps three things to note about paragraph 10.  Firstly, the first two sentences are responsive to the submission that had been articulated by the adviser on page 49 of the further materials about lines 20 to 23 along the lines that - or what was said was that:

This letter was dated 12/10/2016, and on that basis could not have been provided to the delegate.

So there was a submission made obviously invoking subparagraph (i) of paragraph (d), not subparagraph (ii).  The Authority is plainly cognisant of that in paragraph 10.  It accepts that the actual letter could not have been provided, but expresses the view that the information contained therein, there is no reason apparent why that information could not have been assembled or why a letter could not have been obtained containing that information and provided to the delegate. 

So again, as with 11, the Authority responds to the argument that was put and then says, again without further explanation or reference to factors, I am not satisfied that any exceptional circumstances exist.  So there is no “therefore”, for example.  So that whatever the Authority has done here, it has not elaborated in any comprehensive way the factors that it took into account or did not take into account in coming to its views about the existence or not of exceptional circumstances. 

So one would not infer, we would say, from those brief reasons that the Authority had no regard to the nature of the information, no regard to whether it was credible, no regard to whether it was information that could have made a difference if considered by the delegate.  One cannot infer those things, we would say, those absences from the very brief terms of paragraph 10.

The final thing that one would note about paragraph 10 is that there is a description of the letter which is brief, but we would say not inaccurate.  Justice Logan in paragraph 26, to which your Honours have been taken, described the Tribunal as in substance regarding the letter as “corroborative” – and that is a fair assessment of it, we would say.  It describes the letter as recounting the claims already provided.  For reasons I have sought to indicate, that is not an inaccurate description. 

What we seek to draw from that is that the Authority clearly paid some attention to the nature of the information and the significance that the information might have.  To the extent that paragraph (a) required, as a condition of validity, that regard be had to those matters, we would say that regard was had to them.

Of course, in the light of what I said at the beginning about the stage of the process at which 473DD arises, one would not expect or demand any particularly deep or detailed analysis of the nature of the information or its possible significance, or its probative value at this stage.

Now, in one respect, I have realised our written submissions may go too far, and that is at paragraph 54, where we refer to the Authority’s description of the letter – and then we say that is consistent with the letter containing anything that met (b)(ii).  I think that may go too far because while it is true, we would say, that the Authority saw nothing new in the letter, and properly so, it is also the case that the letter was at least capable of being regarded as a further piece of evidence supportive of the claims that that had been advanced.  So it was a piece of evidential material that was perhaps capable of being regarded as probative and relied on in that way.

So I would not seek to rule out the possibility that it might have been found to meet (b)(ii) if the Authority’s attention had been directed to that.  But, of course, that does not mean that the Authority was obliged, as an aspect of paragraph (a), to go into that.

Finally, and this has some bearing on how one reads paragraph 26 of Justice Logan’s reasons, what one does not see in the Authority’s reasoning is any form of reasoning that says the letter could have been obtained before the delegate’s decision, there is, ipso facto, no exceptional circumstance.  The Authority does not, we would say, connect the propositions in that way and thus does not engage in the - in any sort of erroneous narrowing of the concept of exceptional circumstances.  In similar vein, when our learned friend sought to identify error in paragraph 26 of Justice Logan’s reasons, page 70 of the core appeal book, emphasis was placed on the penultimate sentence of paragraph 26, which is:

That is a sufficient basis –

We would say that what his Honour is referring to there as a sufficient basis is not only what is described in the previous sentence, which relates to paragraph (b)(i), but also the sentence before that, which our learned friends did not read, where his Honour says:

True it is that the Authority has not employed the word “corroborate”, but the description “letter of support” which was adopted by the Authority conveys that understanding, in my view.

So we would submit that the best reading of his Honour’s reasons is that what is said to be a sufficient basis for the Authority’s satisfaction is both its briefly‑expressed understanding about the nature of the material, and its observation about the possibility that existed for that material to have been obtained and given to the relevant…..  Those are the submissions for the first respondent, if the Court pleases.

KIEFEL CJ:   Yes, thank you, Mr Kennett.  Is there anything in reply?

MR KING:   May it please the Court, a few brief points in reply.  I will make some reply points as to the construction of 473DD first, and then one final point on the facts.  The first reply point is to the respondent’s submission that there is uncertainty as to whether the Authority, having received material, is obliged to…..under 473DD. 

We say this is certain.  Where a referred applicant gives new information to the Authority, the Authority is bound not to consider it unless (a) and (b) are satisfied.  In those circumstances the Authority needs to know what it is bound to do with that new information.  It needs to know what the law requires of it in those circumstances, and it cannot know what it is bound to do with it until it has considered (a) and (b).  So in our submission, Parliament must have intended that in such a case the Authority would consider those conditions.  That is the only way for the Authority to give effect to section 473DD.

We do not say they are mandatory relevant considerations and that is because there may be cases in which either paragraph need not be considered.  But so to say that does not deny that in some cases both must be considered, and this was such a case. 

At the respondent’s outline, paragraph 3(f), it was submitted that because 473DD is not expressed to be “subject to this part”, the strictures of 473DD shape the concept of the review rather than the reverse.  While it is true that 473DD is not expressed to be a subject to this part, that is also true of section 473CC which contains what we have referred to as the overarching judicial review.  The judicial review in that provision is also not expressed to be subject to this part, so both provisions are expressed to that extent in the same way.  We say simply that both must be read together in context in the way that I have just outlined in relation to the first point.  That is the best way to give effect to the evident intention of those provisions.

It was also submitted at paragraph 3(h) of the outline that the test for exceptional circumstances…...very differently depending on whether (b)(i) or (b)(ii) is engaged.  We do not cavil with that.  That is not part of our case.  But we do say that the policy position behind (b)(i) and (b)(ii) is different. 

To clarify, we do not say that Parliament abandoned the policy position that applicants should advance material at an early stage.  That is not the case.  That policy is preserved in (b)(i).  That is sufficiently evident from the provision itself.  But for the kind of information described in paragraph (b)(ii), the specific class of credible personal information that may affect consideration of the claims, Parliament has relieved the referred applicant of satisfying (b)(i) and in that way offered a measure of relaxation of the default policy position that would otherwise apply.

Now, coming to the duty to give reasons in the Yusuf sense.  In our submission, our case is consistent with this Court’s judgment in BVD17 and there is no tension with that case.  The reason why that is so is that 473DD is not a procedural power of the kind referred to in BVD17.  You cannot make a decision on the review without determining what 473DD requires in respect of each piece of new information. 

Now, that is not true of other procedural powers which might be considered or not considered at the discretion of the Authority with the Authority proceeding to make a decision on review as a matter for it within usual limits as to reasonableness.  So, in that way, 473DD stands in a different position to other procedural powers that might be available to the Authority.  The Authority’s satisfaction under 473DD is a condition on the power to affirm the decision under review and that makes it stand apart.

We know that if there were no duty to give reasons in the way that we have described, a court undertaking judicial review of an authority’s decision would never know whether new information had to be considered or had to be disregarded by the authority unless it voluntarily chose to give comprehensive reasons for its determinations under 473DD.  We say that is a further reason for construing the legislation providing…..in a way to these cases.

Coming to the final point on the facts, it was submitted that this was not a killer piece of information.  Whether or not it may be described as a “killer” piece, can I submit the significance of the information developed over time.  The delegate’s findings, your Honours will recall, were generally favourable to the appellant, except at the end.  So, at the time the appellant submitted this letter, he was seeking to address that final adverse finding of the delegate by showing that the EPDP and the army continued to be interested in him.  So that was the perceived significance of the letter at that time. 

What then happened, however, was that the Authority took a different view to the delegate and was minded to disagree with most of the delegate’s favourable findings.  At that time, the letter assumed greater significance because it corroborated the very findings that the Authority was minded to disagree with, and that was unbeknownst to the appellant at that time. 

So, whether or not it was killer, from the Authority’s perspective, in my submission it was sufficiently significant and its significance developed over time in such a way that one would expect to see (b)(ii) and the substance of the letter having been dealt with had those things been considered.  May it please the Court, those are our submissions.

KIEFEL CJ:   Yes, thank you.  The Court reserves its decision in this matter and adjourns until Tuesday, 8 September at 10.00 am.

AT 12.30 PM THE MATTER WAS ADJOURNED